Docket: T-1343-16
Citation:
2016 FC 1321
Ottawa, Ontario, November 30, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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GEORGE NOEL
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Applicant
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and
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COLD LAKE FIRST
NATIONS,
COLD LAKE FIRST
NATIONS ELECTION APPEAL COMMITTEE and ALAN ADAM, ELECTORAL OFFICER FOR COLD
LAKE FIRST NATIONS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
George Noel has brought an application for
judicial review of a decision of the Cold Lake First Nations [CLFN] Appeal
Committee established under the CLFN Election Law. The Appeal Committee
dismissed his appeal of a decision of the CLFN Election Officer to exclude him
as a candidate for Chief of the CLFN. The Election Officer found that Mr. Noel
was ineligible to run for Chief because he owed a debt to the CLFN in excess of
$3,000.00.
[2]
The CLFN Appeal Committee found that Mr. Noel
was properly excluded as a candidate for Chief due to the unpaid debt. The
Appeal Committee also found that Mr. Noel was ineligible to run for Chief due
to his familial relationship with Beatrice Martial. Ms. Martial was also a
candidate for Chief of the CLFN, and was ultimately successful.
[3]
For the reasons that follow, the CLFN Appeal
Committee unreasonably found that the evidence before it was sufficient to
establish that Mr. Noel was indebted to the CLFN in an amount exceeding
$3,000.00. The Appeal Committee also failed to consider his response to the
allegation that he was ineligible to run for Chief due to his familial
relationship with Ms. Martial. The application for judicial review is therefore
allowed, and the matter is remitted to the Appeal Committee for redetermination.
II.
Background
[4]
Mr. Noel is a member of the CLFN who previously
served as a Councillor. On June 15, 2016, he was nominated to run for Chief of
the CLFN.
[5]
Four protests were filed regarding Mr. Noel’s
candidacy, all of them dated June 17, 2016:
a)
Cecilia Piche stated in her protest against Mr.
Noel:
Section L: of the Election Law
dated May 27, 1986. Any person that owes in excess of $3,000.00 + who’s made no
attempt to repay loan should not be eligible to run.
George Noel owes more than
$3,000.00 in excess therefore cannot run for Chief of Cold Lake First Nations.
I put in documents to prove this.
b)
Sharon Marten stated in her protest against Mr.
Noel:
Ignorant (uneducated) FULL OF
ANGER – violence
70 year old with dementia
Elec Law sect 4 states H of good
character I sound mind
Brother of Bernice Martial same
mother
Sect I – L. immediate family
c)
Christina Chalifoux stated in her protest
against Mr. Noel:
George Noel is not of good moral
character as proven numerous times at Band mtgs, nominations, etc.
Section 4 – Eligibility for Chief,
H states that a nominee has to have good moral character.
George Noel is running for Chief
against his two siblings (Bernice Martial, Gail Meshego) Section I –
Definitions L immediate Family states sisters and brothers cannot run together
for the same position
d)
Conrad Metchewais stated in his protest against
Mr. Noel and Ms. Martial:
Immediate family not able to run
Both are brother and sister
[6]
On June 18, 2016, the CFLN Election Officer,
Allan Adam, wrote to Mr. Noel to inform him that he was not eligible for
nomination because he did not meet the criteria found in s 4.L of the CLFN
Election Law, which provides that:
Any person who
owes the Cold Lake First Nations administration in excess of three thousand
dollars ($3,000.00) and who has made no attempt to repay the loan shall not be
eligible for nomination.
[7]
Mr. Noel’s name was therefore removed from the
list of nominees for Chief of the CLFN.
[8]
The election for Chief of the CLFN took place on
June 22, 2016.
[9]
Mr. Noel appealed his exclusion from the list of
nominees to the CLFN Appeal Committee on July 16, 2016. The Appeal Committee
convened a hearing to deal with numerous appeals arising from the elections for
the CLFN Chief and Council on August 10, 2016. At the hearing, Mr. Noel
maintained that he did not owe a debt to the CLFN and, in the alternative, that
any debt could not be collected pursuant to the Alberta Limitations Act,
RSA 2000, c L-12. He also argued that no evidence of the debt had been
presented to the Appeal Committee.
III.
Decision under Review
[10]
On August 11, 2016, the CLFN Appeal Committee
issued its decisions in respect of Mr. Noel’s appeal and other appeals
concerning the elections for the CLFN Chief and Council. The Appeal Committee
dismissed Mr. Noel’s appeal as follows:
The outstanding balance owed to the Cold
Lake First Nations has been established. A denial is NOT sufficient to
overturn the finding. The burden of proof on a balance of probabilities has NOT
been rebutted. The monies remain outstanding. If a re-payment plan is
established before the next election, this ground cannot be relied on by a
‘Protest’.
In the secondary ground, No immediate family
may run for the same position including brother and sister, as George Noel is
the brother of Bernice Martial, this is not allowed 6(c). The appeal is dismissed.
[Emphasis
original]
IV.
Issues
[11]
This application for judicial review raises the
following issues:
A.
What is the standard of review?
B.
Was the Appeal Committee’s decision procedurally
fair?
C.
Was the Appeal Committee’s decision reasonable?
V.
Analysis
A.
What is the standard of review?
[12]
Questions of procedural fairness are subject to
review by this Court against the standard of correctness (Jacko v Cold Lake
First Nation, 2014 FC 1108 at para 14 [Jacko]; Desnomie v
Peepeekisis First Nation, 2007 FC 426 at para 11; Weekusk v Wapass,
2014 FC 845 at para 10; Parenteau v Badger, 2016 FC 535 at para 36 [Parenteau]).
[13]
The CLFN Appeal Committee’s application of the
eligibility requirements of the CLFN Election Law is subject to review by this
Court against the standard of reasonableness (Jacko at para 13). The
Court will intervene only if the decision falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47 [Dunsmuir]).
B.
Was the Appeal Committee’s decision procedurally
fair?
[14]
Mr. Noel argues that
“[w]hen a decision is made by an administrative tribunal without hearing any
evidence whatsoever to form the basis of that decision and without any
transparency and with no evidence as required by Dunsmuir, it will be
unreasonable and contrary to procedural fairness” (citing Parenteau at
paras 49-51; Dunsmuir at paras 47-50).
[15]
The CLFN Chief and Council respond that Mr. Noel
had the benefit of an oral hearing, and the CLFN Appeal Committee heard
submissions from him personally and also from his counsel. They therefore
maintain that Mr. Noel received a higher degree of procedural fairness than has
been found necessary in similar circumstances. They rely on the Federal Court
of Appeal’s decision in Bruno v Samson Cree Nation, 2006 FCA 249 at
paragraph 22 [Bruno], where the Court stated: “This
does not mean that a full oral hearing was required, but simply that [the
applicant] should have been given the opportunity to respond to the […]
complaint, before the Board concluded that he was ineligible for Council under
section 4 of the Election Law”.
[16]
There is no dispute that Mr. Noel was aware of
the allegation that he owed in excess of $3,000.00 to the CFLN. The letter from
the CLFN Election Officer dated June 18, 2016 informed him that he had been
disqualified as a candidate for Chief for this reason. He appealed the Election
Officer’s decision by letter from his counsel dated July 15, 2016, and
responded to the allegation of the outstanding debt both in writing and orally.
I can find no fault with the CLFN Appeal’s Committee’s procedure regarding the
allegation of the unpaid debt.
[17]
However, protests regarding Mr. Noel’s familial
relationship with Ms. Martial were not cited in the Election Officer’s decision
to disqualify Mr. Noel as a candidate for Chief, nor were they addressed in the
letter from Mr. Noel’s counsel to the CLFN Appeal Committee. The CLFN Chief and
Council argue that the Appeal Committee was not limited to considering grounds
for disqualification identified by the Election Officer, and note that Mr. Noel
addressed the allegation concerning his relationship with Ms. Martial in the
documents he submitted to the Appeal Committee. In particular, the record of
the proceedings before the Appeal Committee contains the following statement
from Mr. Noel:
I, George Noel, do
swear that I was Custom Adopted (it is a legally binding Canadian legislation)
in the Dene tradition by Teddy (Thadius) and Corrine Scanie at two years old
when I was left behind when Isabelle Noel was forced into an arranged marriage
with Joseph Martial. Teddy (Thadius) and Corrine Scanie raised me as their son
and they were the only parents that I ever had. I lived with them my entire
life until I was on my own as an adult. I was not made aware of the identity of
my biological parents until much later in my life. I was not considered a
sibling of any children born to either of my biological parents until much
later in my adult life. I was not accepted by my biological family throughout
my life and grew up believing my uncles were my siblings. I do not consider
Bernice Martial or Gail Muskego as my immediate siblings and respect the Custom
Adoption Tradition I was subjected to.
I, George Noel,
do swear that I do not share the same beliefs, values, principles, traditions
and customs that I was raised with by my parents, Teddy and Corrine Scanie with
Bernice Martial or Gail Muskego.
[18]
It is therefore clear that Mr. Noel was aware of
the protests to his candidacy based on his familial relationship with Ms.
Martial. Importantly, he chose to address this allegation in the materials he
submitted to the CLFN Appeal Committee. It would have been preferable for the
Appeal Committee to raise this further allegation in the course of the oral
submissions made by Mr. Noel and his counsel. However, given the relatively
modest level of procedural fairness owed to Mr. Noel by the Appeal Committee
pursuant to Bruno, I am unable to find that the Appeal Committee’s
procedure regarding the allegation of a prohibited familial relationship was
unfair.
C.
Was the Appeal Committee’s decision reasonable?
(1)
Debt Owed to the CLFN
[19]
The CLFN Chief and Council argue that the
evidence before the CLFN Appeal Committee “clearly
established” that Mr. Noel owed in excess of $3,000.00 to the CLFN. The
Certified Tribunal Record [CTR] includes what appears to be a leger of amounts
owed by Mr. Noel to the CLFN. However, in his affidavit filed in response
to this application for judicial review, the CLFN Election Officer acknowledges
that he verified the documents provided by Ms. Piche in support of her protest
only by confirming their contents with Elder Advisors, specifically former
Chief Joyce Metchewais, Leona Metchewais and Elise Charland. The Election
Officer also deposes that:
In and around June 17, 2016, I requested
Amanda Lapine, Assistant Electoral Officer and Band Employee, to contact the
Cold Lake First Nation’s Chief Financial Officer to obtain further documents
from Cold Lake First Nation’s Archive to verify the contents of the Cecilia
Piche’s Protest. I only received these documents on October 7, 2016 by the
email from Chief Martial.
[20]
Mr. Noel takes the position that the only
documents before the CLFN Appeal Committee when it considered his appeal on
August 10, 2016 were those initially provided by Ms. Piche in support of her
protest. I am satisfied that the evidence adduced in these proceedings indicates
that the additional documents contained in the CTR were not provided to the
Election Officer until October 7, 2016, more than two months after the Appeal
Committee rendered the decision under review.
[21]
Mr. Noel retained Taiwo Kasali, a Chartered
Professional Accountant, to examine the documentation provided by Ms. Piche in
support of her protest. Mr. Kasali provided the following statement to the
Appeal Committee:
1. The said document does not have
the name of a creditor whom George Noel is allegedly owing more than $3,000.
2. There is no statement of claims attached to this document
showing an outstanding or Past Due debt.
3. The document is not a financial statement and appears to
be fabricated.
[22]
There was no evidence before the CLFN Appeal
Committee to contradict the statement of the Chartered Professional Accountant
retained by Mr. Noel.
[23]
The CTR also contains numerous cheque stubs and
handwritten notes, most dating from the early 1990s. However, the affidavits
submitted on behalf of the CLFN Chief and Council do not explain the origin of
these documents, and it is unclear whether they were considered by the CLFN
Appeal Committee before it rendered its decision. The CLFN Chief and Council
argue that the CTR contains material that was, or is deemed to have been,
before the tribunal at the time the decision was made. I disagree.
[24]
The purpose of the CTR is to ensure that an
applicant may be provided with those documents which were before the
decision-maker (Canada (Attorney General) v. Canada (Information Commissioner),
[1997] FCJ No 1160 (TD) at para 26). A document that was before the
decision-maker is presumed to be relevant to a request under Rule 317 of the Federal
Courts Rules, SOR/98-106 (Jolivet v Canada (Justice), 2011 FC 806 at
para 27, citing Access Information Agency Inc v Canada (Transport), 2007
FCA 224 at paras 7, 21). However, Rule 317 does not introduce evidence into the
record. The appropriate way in which to introduce the CTR, in whole or in part,
into the record is by affidavit (Canada (Attorney General) v Lacey, 2008
FCA 242 at paras 6-7). Absent consent, I am unable to infer from the CTR that
the documents it contains were in fact before the CLFN Appeal when it
considered Mr. Noel’s appeal.
[25]
There is insufficient evidence before this Court
to demonstrate how the CLFN Appeal Committee reached its conclusion that Mr.
Noel was indebted to the CLFN in an amount exceeding $3,000.00. Nor do the
Appeal Committee’s reasons address, or even mention, the statement of the
Chartered Professional Accountant that was submitted to the Appeal Committee by
Mr. Noel.
[26]
I am not satisfied that the CLFN Appeal
Committee’s reasons demonstrate the necessary “justification,
transparency and intelligibility within the decision-making process” (Dunsmuir
at para 47). There were serious shortcomings in the evidence considered by the
Appeal Committee; the Appeal Committee failed to address the evidence of the
Chartered Professional Accountant retained by Mr. Noel; and the CTR tendered in
these proceedings does not permit the Court to supplement the Appeal
Committee’s reasons (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at para 12). The Appeal
Committee’s decision to dismiss Mr. Noel’s appeal of his exclusion as a
candidate for Chief on the ground of an unpaid debt was therefore unreasonable.
(2)
Familial Relationship with Bernice Martial
[27]
The Election Officer did not exclude Mr. Noel as
a candidate for Chief due to his familial relationship with Ms. Martial. The
CLFN Appeal Committee nevertheless cited this as a “secondary
ground” for dismissing his appeal of the Election Officer’s decision.
[28]
Section 14.C of the CLFN Election Law provides
that “[a]ll protests must outline the reasons for the
appeal based upon the traditional election law” of the CLFN. Mr. Noel
did not raise the issue of his relationship to Ms. Martial in his appeal,
although he appears to have addressed the allegation in the documents he
submitted to the CLFN Appeal Committee.
[29]
Assuming, without deciding, that it was open to
the CLFN Appeal Committee to dismiss the appeal on a ground that was not raised
by Mr. Noel, there is nothing to indicate that the Appeal Committee gave any
consideration to the detailed explanation offered by Mr. Noel for why he should
not be considered the brother of Ms. Martial. The Appeal Committee’s decision
to dismiss Mr. Noel’s appeal of his exclusion as a candidate for Chief on the
ground of a prohibited familial relationship was therefore unreasonable.
VI.
Conclusion
[30]
The CLFN Appeal Committee unreasonably found
that the evidence before it was sufficient to establish that Mr. Noel was
indebted to the CLFN in an amount exceeding $3,000.00. The Appeal Committee
also failed to consider Mr. Noel’s response to the allegation that he was
ineligible to run for Chief due to his familial relationship with Ms. Martial.
[31]
The application for judicial review is therefore
allowed, and the matter is remitted to the CLFN Appeal Committee for redetermination.
If the parties are unable to agree on costs, they may make written submissions
to the Court, not exceeding three pages, within 14 days of the date of this
Judgment.
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