Docket: T-1095-15
Citation:
2016 FC 385
Ottawa, Ontario, April 8, 2016
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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SHANE CRAWLER
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Applicant
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and
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WESLEY FIRST
NATION
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 18.1 of the Federal
Courts Act, RSC 1985, c F-7 [Act] for judicial review of Council Resolution
No. 2015-021 [Resolution 2015-021], passed on June 3, 2015 by Chief
and Council of the Wesley First Nation [Chief and Council].
II.
BACKGROUND
[2]
The Respondent, Wesley First Nation [WFN], is
one of three separate first nations which make up Stoney First Nation, an
Indian band under the Indian Act, RDC 1985, c 1-5.
[3]
The Applicant is a former member of the Chief
and Council. Chief and Council are responsible for the governance of all
matters relating to the WFN and its members.
[4]
Chief and Council members receive bi-weekly
remuneration and are also reimbursed for expenses incurred when fulfilling
their duties and obligations owed to the WFN, including travel expenses to
attend Chief and Council meetings.
[5]
On December 8, 2014, the Applicant was
re-elected to the Chief and Council as a Councillor.
[6]
On January 19, 2015, Resolution No. 2015-001
[Resolution 2015-001] was passed by Chief and Council which prohibited the
Applicant from acting, or voting, on matters dealing with assets, finances or
budgeting issues. Resolution 2015-001 was a consequence of the Applicant’s
having been charged with an indictable offence under s 380(1) of the Criminal
Code, for allegedly defrauding the WFN of the sum of $25,600.00 by deceit,
falsehood or other fraudulent means. Resolution 2015-001 was the subject of a
separate judicial review (T-193-15) and was declared invalid by Justice
Harrington on November 16, 2015: Crawler v Wesley First Nation, 2015 FC
1271.
[7]
According to the Respondent, notice of Chief and
Council meetings is customarily sent by email, text message or both. Members
unable to attend a scheduled meeting are to advise the WFN Chief Executive
Officer and the Chief. Valid reasons for absences have been limited to medical
reasons, attending to other WFN business matters, or mechanical failure of a
vehicle while in transit to a meeting.
[8]
Chief and Council meetings are routinely held at
the Calgary law firm of Rae and Company. Legal counsel does not attend unless
specifically requested to provide legal advice on a specific matter.
[9]
On May 22, 2015 and May 23, 2015, text messages
and emails containing a meeting agenda were sent advising all Chief and Council
members that a meeting was scheduled for May 26, 2015. On May 25,
2015, the Applicant confirmed by text message that he would be attending the meeting
with his lawyer. The Applicant did not attend the meeting.
[10]
On May 27, 2015, notice of a meeting scheduled
for May 29, 2015 was issued to all Chief and Council members. On May 28, 2015,
the Applicant confirmed his attendance by text message. Again, the Applicant
did not attend the meeting.
[11]
On May 31, 2015 and June 1, 2015, notice of a
meeting scheduled for June 3, 2015 was issued to all Chief and Council members.
On June 1, 2015, the Applicant confirmed his attendance by email. In the same
email, he stated to Norma Jean Roberts, Acting Chief Executive Officer, that he
had been unable to attend the previous meeting of May 29, 2015 as he “could not get gas funds to get to the meeting.” The
Applicant did not attend the June 3, 2015 meeting.
[12]
Contrary to WFN practices, the Applicant did not
contact Ms. Roberts or Chief Wesley prior to the missed meetings to: provide
reason for his absences; request that the meetings be either rescheduled or
relocated; or request that Chief and Council exercise their discretion to
authorize his absence.
[13]
On June 3, 2015, Resolution 2015-021 was passed
and the Applicant’s disqualification from office as a result of missing three (3)
consecutive meetings was confirmed and formalized.
[14]
On July 16, 2015, a by-election was held to fill
the position made vacant by the Applicant’s removal. The Applicant did not
stand as a candidate in the by-election and did not protest any nomination or
appeal the results.
III.
DECISION UNDER REVIEW
[15]
Resolution 2015-021 held, pursuant to s 17.1 of
the Wesley Nation Council Resolution BCR 312, that because of his absence
without valid reason or authorization at three (3) consecutive meetings of the
Chief and Council, the Applicant was disqualified from the office of Councillor
of the Wesley First Nation and ceased to hold his position as of 5:30 PM on
June 3, 2015.
IV.
ISSUES
[16]
The submissions of the Applicant suggest that
the following is the principal issue before me in this application:
- Was the Applicant denied procedural
fairness by the process and events that led to the passing of Resolution
2015-021?
V.
STANDARD OF REVIEW
[17]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is settled in a satisfactory manner
by past jurisprudence, the reviewing court may adopt that standard of review.
Only where this search proves fruitless, or where the relevant precedents
appear to be inconsistent with new developments in the common law principles of
judicial review, must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis: Agraira v Canada (Public
Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[18]
The Court has recognized the knowledge of chiefs
and band councils on matters related to custom and factual determinations and has
found that this expertise should be shown deference. Therefore, band council
decisions are to be reviewed on the standard of reasonableness and will be
upheld unless they fall outside a range of possible, acceptable outcomes which
are defensible in respect of the facts and law: Martselos v Salt River
Nation 195, 2008 FCA 221 at para 30; Hill v Oneida Nation of the Thames
Band Council, 2014 FC 796 at para 46 [Oneida Nation]. However,
deference is only owed where the principles of procedural fairness and natural
justice have been observed: Shotclose v Stoney First Nation, 2011 FC 750
[Shotclose] at paras 58-59. As stated by Justice Mosley in Shotclose:
[60] Where procedural fairness is in
issue, the question is not whether the decisions made by the Chief and Council
or the actions taken by them were "correct" but whether the procedure
used was fair. See: Ontario (Commissioner Provincial Police) v. MacDonald,
2009 ONCA 805, 3 Admin L.R. (5th) 278 at para. 37 and Bowater Mersey Paper
Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141,
2010 NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
[19]
The jurisprudence of this Court demonstrates
that whether a band council has breached a duty of procedural fairness is to be
reviewed on a correctness standard. Therefore, correctness will apply to the
principal issue in this case.
VI.
STATUTORY PROVISIONS
[20]
The following provision of the Wesley First Nation
Custom Election Regulations [Election Regulations] is relevant in this
proceeding:
17.1 Disqualification from office shall
occur in the following circumstances:
…
(b) Any Council member who has been absent
from meetings of the Wesley Nation Council for three (3) consecutive meetings,
without valid reasons or authorization as determined by the Wesley Nation
Council in its sole discretion, shall cease to hold that office.
[21]
The following provision of the Act is relevant
in this proceeding:
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Extraordinary
remedies, federal tribunals
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Recours
extraordinaires : office fédéraux
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18. (1)
Subject to section 28, the Federal Court has exclusive original jurisdiction
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18. (1) Sous
réserve de l’article 28, la Cour fédérale a compétence exclusive, en première
instance, pour :
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(a) to issue an injunction, writ of certiorari,
writ of prohibition, writ of mandamus or writ of quo warranto,
or grant declaratory relief, against any federal board, commission or other
tribunal; and
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(a) décerner une injonction, un bref
de certiorari, de mandamus, de prohibition ou de quo
warranto, ou pour rendre un jugement déclaratoire contre tout office
fédéral;
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(b) to hear and determine any
application or other proceeding for relief in the nature of relief
contemplated by paragraph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a federal board,
commission or other tribunal.
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(b) connaître de toute demande de
réparation de la nature visée par l’alinéa (a), et notamment de toute
procédure engagée contre le procureur général du Canada afin d’obtenir
réparation de la part d’un office fédéral.
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VII.
ARGUMENTS
A.
Applicant
[22]
The Applicant submits that because he was
prohibited from acting or voting on matters dealing with “assets, finances or budgeting matters” on January 19,
2015 by Resolution 2015-001, he had a valid reason for not attending the Chief
and Council meetings held on May 26, 2015, May 29, 2015 and June 3,
2015.
[23]
The Applicant argues that nowhere in the notice
sent to members of Council regarding the meeting of June 3, 2015 was it
indicated that Chief and Council were considering the passing of a resolution
that would disqualify the Applicant from being a member. He says that, given
the nature of the allegations against him that were scheduled to be discussed
at the meeting, this lack of notice constitutes a breach of procedural fairness
and as a result, Resolution 2015-021 should be set aside in its entirety.
[24]
The Applicant also submits that it was
inappropriate for Chief and Council to request the Applicant attend meetings in
the offices of its solicitor who was representing a party in proceedings
adverse in interest to the Applicant (T-193-15), in order to discuss an ongoing
criminal matter in which the Applicant was the accused. The Applicant says that
this was highly inappropriate and an abuse of procedural fairness, as well as
another valid reason for the Applicant’s failure to attend the May 26, 2015 and
June 3, 2015 Chief and Council meetings.
B.
Respondent
[25]
The Respondent points out that the language of s
17.1(b) of the Election Regulations holds that a Council member “shall” cease to hold office if they have been absent
for three (3) consecutive meetings without valid reasons or authorization. As a
result, the Respondent submits that Resolution 2015-021 did not represent an
exercise of discretion on the part of Chief and Council. Rather, it simply
formalized the automatic and mandatory disqualification of the Applicant under
s 17.1(b) of the Election Regulations. The Respondent asserts that were Chief
and Council to refuse or fail to enforce a mandatory provision of the Election
Regulations, it would result in a breach of the fiduciary duty owed by Council
to the members of the WFN.
[26]
After applying the factors identified in Baker
v Canada (Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker],
which have been found to be applicable to the review of decisions of band
councils (see Oneida Nation, above, at para 71), the Respondent further
submits that if there was a duty owed by Chief and Council to the Applicant
with respect to whether the Applicant had a valid reason or authorization for being
absent, then it falls on the lower end of the spectrum of procedural fairness.
Further, Chief and Council fulfilled any duty of procedural fairness owed here
to the Applicant, and the process undertaken by Chief and Council was in
accordance with the Election Regulations and the WFN’s customs and practices.
[27]
The Respondent further submits that none of the
Applicant’s stated reasons for missing the three meetings in question
constitute a valid reason for Chief and Council to authorize the Applicant’s absence.
The Respondent submits that the Applicant’s assertion that it was an abuse of
procedural fairness to conduct the meetings at Rae and Company when counsel
there was the Respondent’s representative in an ongoing criminal matter against
the Applicant is unfounded and unreasonable. The Applicant had long attended
Chief and Council meetings at the law firm and there is no evidence that the
Applicant raised any concerns about this location. Furthermore, it was
appropriate for Chief and Council to request an update from the Applicant on
the status of his criminal proceedings given the potential the proceedings had
to create delays in relation to Resolution 2015-001 which was conditional on
whether the Applicant was convicted or acquitted.
[28]
Resolution 2015-001, according to the
Respondent, only placed temporary limits on the Applicant’s powers related to
financial matters; it did not suspend him as a member of Chief and Council, nor
prohibit him from attending meetings. His submission that he did not need to attend
Chief and Council meetings because of the reduction of his responsibilities is
not supported by the evidence.
[29]
The Applicant alleges a lack of notice that Chief
and Council were proposing to pass a resolution that would remove him from
office. However, the Respondent submits that the notice that was required to be
given to the Applicant was notice of the time and place of the meetings – the
receipt of which the Applicant has made no attempt to refute. The explanations
of the Applicant for his absences do not fall within the range of acceptable
reasons for absence customarily held to be valid. The evidence before the Court
is that the Applicant had proper notice of the time and place of the meetings (even
going so far as to confirm his intention to attend) and chose not to follow the
customary process for requesting that any of the meetings be rescheduled or
that his absence be authorized.
VIII.
ANALYSIS
[30]
WFN elections are based upon the WFN’s custom as
set out in the Election Regulations passed by Band Council Resolution on
October 15, 2014.
[31]
Subsection 17.1(b) of the Election Regulations
provides that a Council member “shall cease to
hold…office” if he or she “has been absent form
meetings of the Wesley Nation Council for three (3) consecutive meetings.”
The only way for a Council member to avoid this consequence is to provide a
valid reason for an absence or obtain the authorization of WFN’s Council.
[32]
The Applicant absented himself from three (3)
consecutive meetings of Chief and Council. This meant that, by the time of the
third consecutive meeting on June 3, 2015, he ceased to hold office by virtue
of s 17.1(b) unless he had provided a valid reason or secured Council’s
authorization to absent himself from at least one of the three meetings.
[33]
There is nothing before me to suggest that the
Applicant takes issue with the constitutional validity of s 17.1(b) of the
Election Regulations. Nor is there any suggestion that s 17.1(b) and/or
the WFN custom it embodies is procedurally unfair in any way.
[34]
The evidence is clear that the Applicant
received full notice of the three consecutive Chief and Council meetings (May
26, 2015; May 29, 2015; and June 3, 2015) and a copy of the agenda for each.
The evidence is also clear that the Applicant confirmed he would attend each of
the meetings but, in fact, he attended none of them.
[35]
There is no evidence before me to suggest that
the Applicant was not aware of s 17.1(b) of the Election Regulations or that he
took issue (or takes issue) with the validity of that provision, or that he did
not appreciate the consequences of failing to attend three consecutive Chief
and Council meetings.
[36]
As regards availing himself of the exemption of
a “valid reason” or an authorization as determined by the Council in its sole
discretion, the Applicant did no more than suggest in a June 1, 2015 email
to Ms. Norma Jean Roberts – who was both the Acting Chief Executive Officer and
Chief Financial Officer of WFN at the time – that his failure or refusal to
attend the May 29, 2015 Chief and Council meeting was that he did not have
enough money to pay for gas and his lawyer told him not to come to the May 26,
2015 meeting. He never provided any reason for his failure to attend the June
3, 2015 meeting prior to s 17.1(b) taking effect on June 3, 2015.
[37]
The Minutes of the June 3, 2015 Council meeting
show that Chief and Council were alerted at that meeting to the Applicant’s
three consecutive absences and the consequences of s 17.1(b). Chief Ernest
Wesley asked at the meeting if the Applicant had given a reason for his failure
to attend. Ms. Roberts reported to Council as follows:
[H]e emailed, text and called. He said he
was coming for sure. The reason why he did not come to the meeting last time
was because he did not have enough fuel. The first time he says his lawyer told
him not to attend.
[38]
Chief Wesley then raised the question of whether
this was a valid reason. The Minutes show that Council considered what would
qualify as a valid reason, and looked at examples such as “sickness and medical reasons, attending band business,
mechanical failures on route to the meeting.” Council also noted that “Chief and Council is usually notified before a meeting about
an absence and is pre-approved.” The facts in the present case are clear
that the Applicant never provided notification before any of the three
consecutive meetings and that, in fact, he confirmed on each occasion that he
would be present and just failed to show up.
[39]
On these facts, it is more than apparent as to why
Chief and Council decided that the Applicant had not provided a valid reason
for any of his absences and that it should not exempt the Applicant from the
automatic consequences of s 17.1(b). The Resolution cannot be called
unreasonable on these facts and the Applicant has not argued that it was unreasonable.
He simply argues that it was procedurally unfair.
[40]
For the purposes of this application, the
Applicant raises three issues and/or puts forward three arguments:
(a) As a result of the January 19, 2015 resolution that prohibited the
Applicant from acting on any of the matters referred to in the Notices for the
meetings of May 26, May 29 and June 3, the Applicant had a valid reason for not
attending any of the three meetings;
(b) The Notice for the June 3, 2015 meeting does not say that Council
was preparing to pass a resolution disqualifying the Applicant from being a
member of Council, and nowhere is the Applicant advised that Council believed
he had no valid reason for failing to attend any of the three meetings,
notwithstanding the prohibition contained in the Resolution of January 19,
2015. This amounts to a breach of procedural fairness that renders the decision
invalid;
(c) The Applicant should not have been required to attend a meeting in
the offices of the solicitor who was adverse in interest because he represented
the opposing party in Federal Court Action T-193-15. This is because the
Applicant would have been subjected to questioning by either members of Council
or the Respondent’s lawyer in an ongoing criminal matter.
[41]
In reviewing these grounds, it has to be kept in
mind that the Applicant at no time believed that there were any grounds for his
not attending any of the three meetings. This is clear because he confirmed
without reservation that he would be attending each meeting. All of the reasons
for his lack of attendance have been raised ex post facto. In other
words, they are raised after the fact for purposes of this application. His
confirmation that he would attend each of the three meetings is clear evidence
that (a) and (c) above are bogus.
[42]
There are no grounds for considering that (a)
and (c) above are anything more than an attempted rationalization after the
fact. Nor does the Applicant argue in this application that his “couldn’t afford the gas” excuse for not attending the
meeting on May 29 was not reasonably rejected by Council. There is no evidence
before the Court that the Applicant had any concerns about the location of any
of the three meetings or that he would have been subjected to unwanted
questioning. Furthermore, the evidence before me is clear that the three meetings
in question dealt with business that the Applicant was not disqualified from
dealing with by virtue of Resolution 2015-001, which only placed temporary
limits upon the Applicant’s powers on Council.
[43]
Similarly, with the Applicant’s ex post facto
excuse that his lawyer told him not to go to the meeting of May 26, 2015. If
this was a concern then the Applicant would not have confirmed that he would
attend that meeting and/or he would have notified Council that he had changed
his mind upon advice from his lawyer. The Applicant confirmed he would attend the
meeting with his lawyer and then just failed to show up.
[44]
If the Applicant had thought it was
inappropriate to attend meetings at the offices of Rae and Company, then he would
not have attended meetings there in the past and he would not have confirmed
that he would be attending meetings there on each of May 26, May 29 and June 3.
[45]
So the single arguable ground before me in this application,
as counsel conceded at the hearing, is ground (b), above: whether it was
procedurally unfair for Council to pass the June 3, 2015 Council
Resolution without giving the Applicant a further opportunity to provide
reasons for his absences.
[46]
As Chief Wesley makes clear in his affidavit:
9. It is the custom and practice of
the Wesley First Nation that any member of Chief and Council that is unable or
unavailable to attend a scheduled Chief and Council meeting will, prior to the
meeting, advise both the Chief Executive Officer (or Acting Chief Executive
Officer) of the Wesley First Nation administration and the Chief of the Wesley
First Nation of their ability or unavailability to attend the Chief and Council
meeting.
10. In appropriate circumstances the
Chief and Council meeting can be rescheduled, or, at the individuals (sic)
request Chief and Council may consider whether it is appropriate for Chief and
Council to exercise its discretion to authorize the absence for the purpose of
section 17.1(b) of the Election Regulations.
11. To the best of my knowledge and
recollection, valid reasons or authorizations for not attending a Chief and
Council meeting, pursuant to Wesley First Nation custom and practice, have been
limited to absences due to: medical reasons; and individual attending to other
Wesley First Nation business matters; or, in very rare instances, due to
mechanical failure of a vehicle which in transit to a Chief and Council
meeting.
12. The Applicant did not contact
either Ms. Roberts or me to request that any of the three Chief and Council
meetings, at issue, be rescheduled.
13. The Applicant did not contact
either Ms. Roberts or me to request that Chief and Council exercise its
discretion to authorize the Applicant’s absence, from any of the three Chief
and Council meetings at issue, under section 17.1(b) of the Election
Regulations.
14. To the best of my knowledge and
recollection, pursuant to Wesley First Nation custom and practice Chief and
Council has never considered the lack of money for gas to be either a valid
reason or an authorized reason to be absent from a Chief and Council meeting.
15. Members of Chief and Council are
compensated to allow Chief and Council to fulfill their duties and obligations
to the Wesley First Nation, which duties include travel to Chief and Council meetings.
16. In addition to the compensation
paid to Chief and Council, Chief and Council are also reimbursed for travel
expenses for each Chief and Council meeting that is attended. However, pursuant
to the custom and practice of the Wesley First Nation, in order to ensure that
travel expenses are properly and correctly reimbursed, only those members of
Chief and Council that attend at Chief and Council meetings are entitled to
receive reimbursement for travel at the end of each Chief and Council meeting.
17. To the best of my knowledge and
information, members of Chief and Council have not been reimbursed for travel
expenses to a Chief and Council meeting before a Chief and Council meeting.
18. In any event, the Applicant
refused or failed to request that Chief and Council exercise its discretion to
authorize the Applicant’s absence from three consecutive Chief and Council
meetings.
19. On June 3, 2015, as the Applicant
was absent from three consecutive Chief and Council meetings without valid
reasons or authorization, the Applicant was automatically, and mandatorily,
disqualified from his office as Councillor of the Wesley First Nation pursuant
to section 17.1(b) of the Election Regulations.
20. While Wesley First Nation Council
Resolution No. 2015-021, dated June 3, 2015, and attached as Exhibit “F” to the
Affidavit of Ms. Roberts, formalized the Applicant’s disqualification from the
office of Councillor, this resolution was not an exercise of Chief and
Council’s discretionary powers since the Applicant’s disqualification from
office was automatic and mandatory.
[47]
The Applicant does not challenge this evidence
in any way. He does not say that he was unaware of this customary practice or
that he did not understand it. He does not say that he does not approve of it,
nor that he had any expectation that he would be treated otherwise than in
accordance with the process that Chief Wesley says is used to deal with
absentee Council members. He simply alleges that he was not treated in a
procedurally fair manner in this case. However, he was treated in accordance
with the customary process described by Chief Wesley, and this means that the Applicant
should have provided reasons for his absences and sought any authorizations he
needed before the meetings in question. So is this process procedurally unfair?
[48]
As Baker, above, makes clear the duty of
procedural fairness is flexible, variable, and depends on an appreciation of
the particular rights affected. The factors in Baker are not exhaustive
but I think the following are important in this case:
(a) The customary procedure at WFN allows any Councillor, including the
Applicant, to provide reasons and seek authorization not to attend Chief and Council
meetings. Requiring Council members to do this prior to any meeting is fair and
efficient and it keeps Council members honest. No one is prevented from seeking
a discretionary exemption from the mandatory impact of s 17.1(b) of the
Election Regulations. They are simply required to do it prior to the meeting in
question for obvious reasons of efficiency and honesty. A decision on such
issues is a simple administrative act. It is not disciplinary in nature even
though the failure to give reasons or seek authorization may lead to serious
consequences under the mandatory aspect of s 17.1(b). If there is some reason
why reasons or authorization cannot be sought in advance, then Council can deal
with it at subsequent meetings. In the present case, the Applicant has not even
suggested that he could not have followed the process described by Chief
Wesley, or that he had any reason for not following it. In fact, the Applicant
confirmed that he would attend all three meetings, but simply did not show up.
He suggested to Ms. Roberts that he could not afford gas for the May 26, 2015
meeting and that his counsel advised him not to attend. The gas reason was
dealt with by Council on June 3, 2015. The counsel’s advice issue simply makes
no sense. The Applicant advised that he would attend the meeting with his own
counsel (to which no one seems to have objected) and then didn’t show up. So,
as the record stands, the Applicant did not ask for authorization to miss any
of the three meetings, and the only reason he suggested for one of the meetings
(unable to afford gas) was acknowledged and dealt with. Procedural fairness
does not require that the Applicant be given some further opportunity to think
up and submit reasons for non-attendance that he did not raise at the material
time. In fact, no further reasons existed because the Applicant confirmed he would
attend all three meetings and he has never explained why he didn’t come forward
later and ask for authorization if he had been unable to attend for some
reasons that occurred between confirming his attendance and his failure to
attend;
(b) The Election Regulations themselves make it clear that WFN, as a
custom election band, has the discretionary powers to organize and legislate
its own elections process and to control Chief and Council meetings for
legitimate purposes. Subsection 17.1(b) is an essential part of that governance
process and should not be subjected to modification by the Court unless there
is real unfairness;
(c) The Applicant has expressed no legitimate expectations that he
should not behave in accordance with WFN custom or the process for dealing with
absentee Councillors outlined by Chief Wesley in his evidence for this
application. In fact, there is no real evidence before the Court that the
Applicant requested, or even wanted, Chief or Council to authorize his absences
or to consider any reasons he might wish to raise to excuse them; and
(d) As the Respondent points out
Chief and Council, pursuant to its customs
and practices, has a procedure to deal with absences from Chief and Council
meetings. The procedure allows Chief and Council to efficiently conduct
meetings, ensure attendance of elected officials at Chief and Council meetings,
and to reschedule or relocate Chief and Council meetings. Chief and Council
possess expertise in conducting Chief and Council meetings and authorizing any
absences therefrom. The Applicant was a member of Chief and Council for over
four years and was elected pursuant to the Election Regulations. Thus, the
Applicant knew or ought to have known that it was the custom and practice of
the WFN that prior authorization for any absences from Chief and Council
meetings be requested. This factor also attracts a lower content of procedural
fairness.
[49]
By requiring the Applicant to observe the
customary process, and to face the consequences of disqualification if he did
not, the Applicant was merely required to follow a process that was clear,
open, predictable, not onerous in any way, efficient and fair. He has provided
no convincing reason as to why he did not follow that process.
[50]
As the Supreme Court of Canada pointed out in Knight
v Indian Head School Division No 19, 1990 CarswellSask 146 at para 53:
It must not be forgotten that every
administrative body is the master of its own procedure and need not assume the
trappings of a court. The object is not to import into administrative
proceedings the rigidity of all the requirements of natural justice that must
be observed by a court, but rather to allow administrative bodies to work out a
system that is flexible, adapted to their needs and fair. As pointed out by de
Smith (Judicial Review of Administrative Action, 4th ed. (1980), at p. 240),
the aim is not to create “procedural perfection” but to achieve a certain
balance between the need for fairness, efficiency and predictability of
outcome.
[51]
It seems to me that the appropriate balance is
struck by the Election Regulations in this case. Absentee Councillors are given
every opportunity to provide reasons or seek authorizations if they need to
absent themselves from Council meetings, and if they fail to do so, and the
automatic disqualification embodied in s 17.1(b) takes effect, then procedural
fairness does not require another opportunity for the Applicant, or any other
Councillor, to provide what they have chosen not to provide in the way, and at
the time, required by the Election Regulations and WFN custom.
[52]
So my conclusion is that a breach of procedural
fairness has not occurred in this case and the application must be dismissed.
[53]
As discussed at the hearing of this application,
even if I had found a breach of procedural fairness this would not necessarily
mean that I could have granted the relief requested. The remedies requested are
discretionary and there are many factors that would have to be considered and
weighed. The Applicant is, in effect, asking the Court to reinstate him as
Councillor after a by-election that had replaced him with another incumbent.
The Applicant did not participate in this by-election or object to the present
incumbent’s nomination or protest or appeal the election in any way that was
open to him. Hence, the intervention of third-party rights that the Applicant
has not brought before the Court in the proper way, as well as the general
public interest of WFN, would be thrown into chaos if the Court were to now
assert that the Applicant has not been disqualified from Chief and Council at
the same time as he has been replaced by someone else whose election he did not
contest, protest or appeal. Fortunately, the Court does not need to address
these extremely complex issues.
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