Date: 20130705
Dockets: A-102-13
A-101-13
Citation: 2013 FCA 177
CORAM: BLAIS
C.J.
MAINVILLE
J.A.
NEAR J.A.
BETWEEN:
Docket: A-102-13
GEORGE ASSINIBOINE,
MARVIN DANIELS and RUTH ROULETTE
Appellants
and
DENNIS MEECHES
Respondent
BETWEEN:
Docket: A-101-13
DAVID MEECHES
Appellant
and
DENNIS MEECHES
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This
concerns two consolidated appeals from a judgment of Russell J. of the Federal
Court (the “Application Judge”) dated February 26, 2013 and cited as 2013 FC
196 (the “Reasons”) which declared that the Long Plain First Nation Election
Appeal Committee (the “Election Appeal Committee” or “Committee”) had made a
final and binding decision requiring new elections for the offices of the Chief
and all the councillors.
BACKGROUND AND CONTEXT
(a) Overview of the litigation
[2]
The
Long Plain First Nation (the “First Nation”) is a band within the meaning of
the Indian Act, R.S.C. 1985, c. I-5. It is governed by a Chief and four
councillors forming the council of the band under the Indian Act. They
are elected for three year terms pursuant to the Long Plain First
Nation Election Act (the “Election Act” or the “Act”), an election code
adopted by the First Nation. The last elections were held in April 2012, and
resulted in the election of the appellant David Meeches as Chief, and of the
appellants George Assiniboine, Marvin Daniels and Ruth Roulette as councillors.
Barbara Esau, who is not a party to these appeals, was also elected councillor
at that time.
[3]
The
Election Act designates the Chief and the councillors as the “Tribal
Government”. This is an expression borrowed from American Indian law. Though the
expression “Long Plain First Nation Government” may be more appropriate, I will
nevertheless refer to the “Tribal Government” in these reasons in light of its
use in the Election Act.
[4]
Various
appeals challenging the results of the April 2012 elections were submitted to
the Election Appeal Committee constituted under the Election Act. One of the
appeals was made by the respondent Dennis Meeches, who had unsuccessfully run
against the appellant David Meeches in the election for the office of Chief.
After reviewing the appeals before it, the Election Appeal Committee concluded
that the election process overall appeared to have been fairly conducted. It
nevertheless recommended that the elections be set aside and new elections be
held.
[5]
An
application for judicial review was subsequently filed in the Federal Court on
behalf of the First Nation seeking to set aside that decision. Concurrently, a
motion was brought seeking to stay the decision pending the final determination
of that application. The stay motion was dismissed by Harrington J. (the
“Motion Judge”) on the ground that the Election Appeal Committee had simply
recommended that new elections be held, and that this recommendation was not a
“decision” or an “order” that had to be accepted or acted upon by the Tribal
Government. The Motion Judge however noted that if an order was issued by the
Election Appeal Committee calling for new elections, then a new stay motion
could be submitted, if need be. The First Nation discontinued its application
shortly thereafter.
[6]
The
respondent Dennis Meeches then initiated his own application for judicial
review before the Federal Court. That application was dealt with in the judgment
under appeal. The Application Judge found that he was not bound by the prior
decision of the Motion Judge. He rather concluded that the Committee had made a
binding decision calling for new elections.
[7]
The
respondent subsequently filed a motion in the Federal Court seeking an order
pursuant to Rule 431 of the Federal Courts Rules, SOR/98-106 compelling
compliance with the judgment of the Application Judge. That motion was
dismissed by Strickland J. on April 11, 2013 on the ground that the judgment was
purely declaratory and could therefore not be enforced under Rule 431.
[8]
The
appellants subsequently sought an order from this Court staying the judgment of
the Application Judge. I granted this stay on April 29, 2013 for reasons cited
as 2013 FCA 114. In light of the circumstances, I further ordered that the consolidated
appeals be expedited.
(b) The Election Act
[9]
It
is appropriate to reproduce upfront the principal provisions of the Election
Act which are at issue.
[10]
Article
Five of the Election Act provides for the conduct of a candidate during an
election. It specifically forbids vote buying and states the consequences for a
candidate engaging in the practice:
5.4 No buying of votes in any manner, i.e. giving
money, buying alcohol, or anything given or exchanged of monetary value between
Nomination Day and Election Day.
...
5.11 Failure to adhere to Sections 5.1 to 5.10 will
lead to disqualification of the candidate.
[11]
Article
Eight of the Election Act deals with the Election Appeal Committee. It notably
provides for the following regarding the composition, duties and authorities of
the Committee:
8.1 The Election Appeal Committee shall consist of
three (3) non-Tribal members.
...
8.5 The Election Appeal Committee shall have the
authority ... to investigate and determine whether any elected official has
vacated his/her office as a result of the provisions of Article 18 herein.
8.6 The Election Appeal Committee shall investigate
a substantial matter brought before them relating to ... an allegation pursuant
to Article 5 or Article 17 upon receiving a written request to investigate. The
written request shall be delivered to the Election Appeal Committee by any
elector.
8.7 The Election Appeal Committee shall have the
discretion to determine the scope of any investigation and upon completion; (sic)
the Election Appeal Committee shall provide to the Tribal Government their
findings within two (2) days, in writing.
8.8 In the event the Election Appeal Committee recommends
that the elected official has vacated his or her office pursuant to a breach,
the Tribal Government shall declare the office vacant and forthwith call a
By-election. The declaration shall be in the form of a Band Council Resolution
passed at a duly convened meeting of the Tribal Government.
[12]
Article
Twelve of the Act deals with nomination appeals. It sets out an appeal
mechanism for candidates who have been found by the Electoral Officer to be ineligible
to run in an election:
12.1 If a candidate is found to be ineligible by the
Electoral Officer, with respect to his/her nomination, he/she may appeal within
two (2) days of the close of the nomination meeting.
12.2 The candidate must submit a letter, with
supporting documentation, stating the reasons for his/her nomination appeal.
12.3 The Election Appeal Committee will immediately
convene a meeting with the ineligible candidate appealing to present his/her
nomination appeal.
12.4 The Election Appeal Committee will discuss and
make a recommendation within three (3) days of the nomination meeting as to
whether or not the ineligible candidate is to be re-instated.
12.5 The decision of the Election Appeal Committee
shall be binding and final.
[13]
Article
Seventeen concerns election appeals. It sets out the provisions governing an
appeal of the results of an election:
17.1 Any candidate or elector has the right to
appeal the results of an election within seven (7) days from the date of the
election.
17.2 Grounds for an appeal are restricted to
election practices that contravene this Election Act.
17.3 An appeal must be in writing duly signed to the
Electoral Officer and must contain details and supporting documentation as to
the grounds upon which the appeal is being made and include a non-refundable
deposit fee of $100.00 by certified cheque, money order, bank draft or cash and
which monies are to be applied toward the appeal costs.
17.4 The Election Appeal Committee shall determine
as to whether or not an appeal hearing should take place.
17.5 If it is determined that there is sufficient
evidence to warrant an appeal hearing, the Election Appeal Committee shall
schedule a formal meeting two (2) days after the election appeal deadline.
17.6 An appeal hearing will take the form of a
formal meeting consisting of:
The Electoral Officer
The Election Appeal Committee
The candidate or elector making the appeal.
17.7 The decision of the Election Appeal Committee
shall be irrevocable, binding, and final. The decision must be made public
within (2) (sic) days of the appeal hearing with the decision being
posted at the Tribal Government office, Administration office, and Keeshkeemaqua
Conference Centre.
[14]
Article
Eighteen is entitled “Vacancy” and deals with various disqualifications of
elected Tribal Government members, including disqualifications related to
corrupt election practices:
18.1 Any office of the Tribal Government becomes
vacant when the person who holds office:
...
d. Has been found guilty of corrupt practice in
connection with the election pursuant to a decision of the Election Appeal
Committee. A corrupt practice shall include, but not be limited to, tampering
with the election process, bribery, or coercion related to the election,
campaigning while the polls are open, and anything else the Election Appeal
Committee deems to be a corrupt practice.
...
i. If an Ogema [Chief] or an Oginjigan [Councillor]
ceases to hold office by virtue of Article 18.1 (c) to Article 18.1 (h)
inclusively, he or she shall be ineligible to be a candidate for Ogema [Chief]
or Oginjigan [Councillor] for the next 10 years.
(c) The Respondent’s Election Appeal
and the Report of the Election Appeal Committee
[15]
Following
his unsuccessful bid for the office of Chief in the election held in April
2012, the respondent Dennis Meeches submitted an election appeal to the
Election Appeal Committee in which he raised two principal issues: (a) whether
there should be new elections as a result of contraventions to the Election Act
which occurred during the election, and (b) whether the elected Chief, the
appellant David Meeches, had been involved in conduct that would disqualify him
from holding office for 10 years and would result in the office of Chief being
vacated, thereby requiring a by-election to be held for that position: affidavit
of Dennis Meeches at para. 11, p. 70 of the Appeal Book (“AB”). The principal
allegations of candidate misconduct raised by the respondent were that the
appellant David Meeches had used band funds for his campaign and had been
involved in widespread vote buying contrary to the Election Act: ibid. at
para. 10, pp.69-70 and pp. 121-122 of AB.
[16]
The
Election Appeal Committee held a series of meetings and telephone
communications with a number of individuals. The Committee also held a meeting
to hear the respondent and other electors. The Committee also heard the appellant
and elected Chief David Meeches, but it did not hear any of the elected
councillors.
[17]
The
Election Appeal Committee prepared a written (but undated) report of its
findings which was received by the respondent at the beginning of May 2012 (the
“Report”).
[18]
With
respect to the alleged contraventions to the Election Act, the Committee
concluded in its Report that “[w]hile there were some deviations from the Long
Plain Election Act as discussed above, the election process overall appears to
have been fairly conducted.” Nevertheless, it followed this conclusion with the
following statement: “However, since the Election Act is a key part of the
governance of the First Nation and since it was enacted to govern elections, we
recommend that the election be set aside and an election process be undertaken
following the Act as it is written”: Report at p. 6, AB at p. 143.
[19]
The
Committee also considered the allegations of candidate misconduct in its Report.
These allegations had been primarily made against the elected Chief, the
appellant David Meeches. The Committee made the following observations with
respect to these allegations (Report at p. 5, AB at p. 142):
The other two appeals contain allegations of
misconduct primarily by the individual elected as Ogema [Chief] in the April
2012 election.
The allegations include vote buying, interference
with the election process and use of band funds to gain re-election.
In regard to the use of band funds the examples
provided include the publication of a Long Plain Newsletter just prior to the
poll in Brandon. Documents were provided which indicate preparation of the
Newsletter was paid for by the Tribal Government. The Committee was advised
that there was a misunderstanding regarding the preparation and printing of the
Newsletter. Documents show that Arrowhead Development Corporation initially
paid for the newsletter. This was subsequently corrected. The Committee
received receipts verifying the candidate for Omega [Chief] reimbursed
Arrowhead Development Corporation and paid Mayfair Printing for the Newsletter.
The appeal also alleged that a meeting room used by
the same candidate was paid for with band funds. Receipts show that the meeting
room was paid by the individual. Both the name of the individual and the name
of the First Nation appear on the documents.
...
The allegations of vote buying present considerable
challenges for the Election Appeal Committee. While the Election Act provides a
broad mandate to investigate matters brought to it, the allegations of vote
buying rely on statements made by individuals and interpretation of
conversations overheard during the conduct of the vote and reported to the
scrutineers for the individual who filed the appeal.
One document was provided to support the allegation
of vote buying. The document is signed by an individual stating she received
$20.00 to Vote for one of the candidates for Ogema [Chief]. However, the
individual clearly states that she would like to remain anonymous. She was
asked by the individual appealing to appear before the Appeal Committee and she
advised that her statement was true and correct.
(d)
The Initial Judicial Review Application and the Order of the Motion Judge
[20]
Shortly
after the release of the Report, a judicial review application was filed in the
Federal Court in the name of the First Nation seeking to set aside the decision
of the Committee and allowing the elected Chief and councillors to remain in
office (the “initial judicial review application”). Simultaneously, a motion
for an interim stay of the decision of the Committee was also filed in the
Federal Court.
[21]
The
respondent was served with the initial judicial review application and the stay
motion on Wednesday May 9, 2012: affidavit of Dennis Meeches at par. 32, AB at
p. 75. The stay motion was heard shortly thereafter on Friday May 11, 2012, by
way of teleconference. The respondent Dennis Meeches participated in this
hearing, but he was not then represented by counsel in light of the short
notice.
[22]
The
Motion Judge dismissed the interim stay motion at the hearing on a ground which
he appears to have himself raised. The pertinent extracts of his order, cited
as 2012 FC 570, read as follows:
[6] I immediately seized on the word
“recommend” [in the Committee’s report]. Section 18.1(2) of the Federal
Courts Act deals with applications for judicial review “in respect of a decision
or an order of a federal board, commission or other tribunal...” I
raised the point that a “recommendation” is directed to somebody else, in this
case, perhaps, the Tribal Government. It is not a “decision” or an “order” as
such. It may or may not be accepted and acted upon.
...
[8] The applicant is concerned that in
context the Election Appeal Committee’s “recommendation” was in fact a
decision. However, the Election Appeal Committee did not recommend that any
elected official has vacated office due to a breach, and therefore there is no
requirement that the Tribunal (sic) Government declares an office vacant
and calls a bi-election (sic). Since article 8.8 [of the Election Act]
does not apply, the word “recommend” must be given its ordinary meaning.
...
[10] The respondent raised issues which deserve
comments.
[11] The first is, whether the “recommendation”
could be construed as a “decision” or “order”. In my opinion, it cannot.
...
[14] If circumstances change, in that the
“recommendation” is acted upon and an order is issued for a new election, the
applicant may re-present its motion, and the respondents will have full
opportunity to contest.
[23]
The
initial application for judicial review which had been brought in the name of
the First Nation was discontinued shortly after this order was issued.
THE JUDGMENT UNDER APPEAL
[24]
Following
the order of the Motion Judge, the respondent Dennis Meeches sent a letter to
the Election Appeal Committee requesting that it clarify its position on his
election appeal: affidavit of Dennis Meeches at para. 36 and exhibit H thereto,
AB pp. 76 and 176-177. The Committee did not respond.
[25]
The
respondent consequently filed his own application for judicial review in the
Federal Court seeking various types of relief for the purpose of setting aside
the elections and to have new elections held.
[26]
The
Application Judge treated the application as principally seeking to enforce the
decision of the Election Appeal Committee calling for new elections. This
approach lead the Application Judge into an analysis of (a) the power of the
Election Appeal Committee to compel new elections (Reasons at paras. 75 to 87);
and (b) the nature and scope of the decision which had been made by the Committee
in this case (Reasons at paras. 88 to 114).
[27]
Dealing
first with the power of the Election Appeal Committee, the Application Judge recognized
that a distinction was set out in the Election Act between, on the one hand, a
complaint concerning the impeachable conduct of an incumbent leading to the
vacancy of an elected position (sections 8.5, 8.8 and 18.1 of the Act), and, on
the other hand, an appeal of the results of an election based on election
practices which contravened the Act (sections 17.1 to 17.7 of the Act).
[28]
The
Application Judge further recognized that in the case of a complaint concerning
the impeachable misconduct of an incumbent, the Election Act provides that the resulting
“recommendation” of the Election Appeal Committee is binding on the Tribal
Government (section 8.8 of the Act), while in the case of an appeal of the
election results, the Committee must make a “decision” which is “irrevocable,
binding, and final” (section 17.7). He further noted that section 17.7 of the
Act does not stipulate on whom this “decision” is binding. Applying a purposive
interpretation to the Election Act, the Application Judge concluded that a
decision by the Election Appeal Committee under section 17.7 is binding on the
Tribal Government, which must act upon it forthwith: Reasons at para. 87.
[29]
He
opined that by calling for a new election in this case, the Committee was
essentially declaring that the Tribal Government was not legitimate: Reasons at
para. 101. In his view, it would therefore be both improper and somewhat absurd
to allow the affected members of the Tribal Government to disregard the view of
the Committee: Reasons at para. 103. He further found that “[n]owhere in the
Election Act can I find a ‘recommendation’ that is not mandatory”, and he
concluded from this that a recommendation under that Act “is a decision that
has binding effect, and must be acted upon”: Reasons at para. 107.
[30]
The
Application Judge recognized that his conclusion on the mandatory effect of the
Committee’s recommendation was directly contradictory to the prior order of the
Motion Judge. However, he did not deem himself bound by that order on the
following grounds: (a) he was deciding the matter on a different record; (b)
the Motion Judge’s order was interlocutory rather than final, and (c) that
order was not persuasive since it was made on a different basis: Reasons at
paras. 111-112.
[31]
Turning
his mind to the nature and scope of the decision which had been made in this
case by the Committee, the Application Judge recognized that though the
Committee had found that there were some deviations from the Election Act
during the elections, it had nevertheless concluded that the election process
overall appeared to have been fairly conducted.
[32]
Nevertheless,
relying on Newfoundland and Labrador Nurses’ Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the
Application Judge was of the view that the Committee’s findings had to be
understood in the context of its Report read as a whole, as well as in the
context of the entire record that was before it. After reviewing the record
himself, he found that the Committee had called new elections on the ground of
candidate misconduct which was sufficient to affect the outcome of the
election. He concluded as follows at paras. 95 and 114 of his Reasons:
[95] Having
made these findings, the Election Appeals Committee then moves to its Decision,
and this is to the effect that, even though overall the election appears to
have been fairly conducted (i.e. the deviations were not widespread) those
deviations that did occur require that the election be set aside and a new
election called. The rationale is that the “Election Act is a key part of the
governance of the First Nation.” In other words, those deviations that did
occur had “a material effect on the outcome of the election” so that it should
be set aside.
…
[114] When I look at the evidence before the Election Appeal
Committee in this case, I see that there was evidence of vote buying. Instead
of coming to conclusions on this issue the Election Appeal Committee tells us
that the "allegations of vote buying present considerable challenges for
the Election Appeal Committee." Rather than make recommendations on vote
buying, the Election Appeal Committee decides to simply recommend a new
election because of material deviations from the Election Act. It chooses not
to tell us specifically what deviations it has in mind. The Election Appeal
Committee would know, of course, that a decision on vote-buying and a
recommendation under paragraph 8.8 would exclude the elected officials
concerned from running for office again for 10 years. That could be a very
unfortunate consequence for the Long Plain First Nation as well as the
individuals involved. Hence, those individuals accused of vote buying should
have breathed a sigh of relief that the Election Appeal Committee opted instead
to treat the whole matter under Article 17 and decide that a new election was
required.
THE ISSUES IN APPEAL
[33]
The
issues raised by this appeal may be described as follows:
a. Did the Application
Judge err in determining that he was not bound by the reasons set out in the
order of the Motion Judge?
b. If not, did he err in
holding that the Election Appeal Committee had the power to compel new elections
under Article 17 of the Election Act?
c. If not, did he err in
determining that in this case the Election Appeal Committee had made an
irrevocable, binding and final decision to compel new elections?
d. If not, should the
decision of the Election Appeal Committee nevertheless be set aside?
(a) Were the reasons
in the order of the Motion Judge binding on the Application Judge?
[34]
The
appellants principally rely in this appeal on their submission that the
Application Judge was precluded from deciding the respondent’s application for
judicial review on a different ground than that set out by the Motion Judge in
his order dismissing the interim stay motion in the initial judicial review application.
The appellants submit that the principles of issue estoppel, of abuse of
process and of collateral attack all precluded the Application Judge from
deciding the matter as he did.
[35]
The
fundamental flaw in the appellants’ submission is that the Motion Judge dismissed
the interim motion to stay the decision of the Election Appeal Committee, thus
precluding the respondent Dennis Meeches from appealing that order. Indeed, an
appeal does not lie against the reasons for an order or judgment: Rathiopharm
Inc. v. Pfizer Canada Inc., 2007 FCA 261, 367 N.R. 103; Konecny v.
Ontario Power Generation, 2010 FCA 340 at para. 7. Further, as a result of
the discontinuance of the initial application for judicial review, the
respondent was also precluded from challenging the initial judicial review application
on its merits. The appellants’ reliance on issue estoppel, abuse of process and
collateral attack is consequently somewhat suspect.
[36]
These
doctrines form part of a public policy favouring the finality of judicial
decisions and which is designed to advance the interest of justice: Danyluk
v. Ainsworth Tecnologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (“Danyluk”)
at para. 19. In this case, these doctrines are being advanced by the
appellants in a context which precludes the interest of justice. As noted by
Justice Binnie in Danyluk at para. 1 a “judicial doctrine developed to
serve the ends of justice should not be applied mechanically to work an
injustice.”
[37]
In
the recent decision of Penner v. Niagara (Regional Police Services Board),
2013 SCC 19, 356 D.L.R. (4th) 595 at paras 40-41, Justices Cromwell
and Karakatsanis explained that these doctrines apply where there was a fair
opportunity for the parties to put forward their position, to adjudicate the
issues and to have the decision reviewed. Though these comments were made in
the context of a claim of issue estoppel following a decision of a police
disciplinary tribunal, they are nevertheless applicable to this case:
[40] If the prior proceedings were unfair to a party, it will
likely compound the unfairness to hold that party to its results for the
purposes of a subsequent proceeding. For example, in Danyluk,
the prior administrative decision resulted from a process in which Ms. Danyluk
had not received notice of the other party's allegations or been given a chance
to respond to them.
[41] Many of the factors identified in the jurisprudence,
including the procedural safeguards, the availability of an appeal, and the
expertise of the decision maker, speak to the opportunity to participate in and
the fairness of the administrative proceeding. These considerations are
important because they address the question of whether there was a fair
opportunity for the parties to put forward their position, a fair opportunity
to adjudicate the issues in the prior proceedings and a means to have the
decision reviewed. If there was not, it may well be unfair to hold the parties
to the results of that adjudication for the purposes of different proceedings.
[38]
In
this case, the interim motion for a stay was filed at the same time or shortly
after the initial judicial review application, leaving little time for the
respondent Dennis Meeches to secure legal counsel and to organize an
appropriate response. As a result, the hearing of that motion was held without
the benefit of argument from counsel for the respondent. In addition, the
ground on which the motion was decided was raised by the Motion Judge himself
at the hearing, thus leaving little opportunity for the respondent to properly address
that issue. More important, however, is the fact that the Motion Judge was
deciding whether or not to grant an interim stay on the basis of an incomplete
record and limited arguments on the merits of the underlying application. All
these factors lead me to conclude that the Application Judge properly exercised
his discretion in determining that he was not bound by the reasons of the
Motion Judge.
[39]
As
a general rule, a judge on an interim motion should not decide the merits of
the underlying proceedings when determining whether to issue a stay. Applying
the tripartite test set out in RJR-MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R. 311 (“RJR-MacDonald”), a judge deciding a stay motion must,
of course, make a preliminary assessment of the merits of the underlying
proceedings to ensure that there is a serious issue to be determined in those
proceedings. However, the threshold for a serious issue is low, since it is
usually met if the underlying proceedings are not frivolous or vexatious: RJR-MacDonald
at p. 337.
[40]
Consequently,
at the stage of a motion for a stay, a “prolonged examination of the merits is
neither necessary nor desirable”: RJR-MacDonald at p. 338. It is only in
exceptional circumstances that a judge deciding a stay motion should engage in
an extensive review of the merits of the underlying proceedings, such as when
the right which the stay seeks to protect can only be exercised immediately or
not at all, or when the result will impose such hardship on one party as to remove
any potential benefit from proceeding further with the litigation: ibid.
None of these exceptional circumstances existed when the Motion Judge decided
the stay motion.
[41]
There
are important judicial policy considerations at issue here. It is indeed usually
inappropriate to determine the respective rights of litigants in the absence of
a complete record and of full argument on all the pertinent issues. A judge
deciding a stay motion should therefore be restrained in his or her approach to
the merits of the underlying proceedings, and must strive not to decide substantive
issues unless special circumstances dictate otherwise.
(b) Does the Election Appeal
Committee have the power to compel new elections under Article 17 of the
Election Act?
[42]
The
appellants further submit that the Application Judge erred in law by finding
that the Election Appeal Committee had the power to call a new election under
Article 17 of the Election Act. For the appellants, the only compelling power
vested in the Committee is to be found in sections 8.7 and 8.8 of the Election
Act, reproduced above, providing for the removal of an incumbent from office
for misconduct. They submit that in order to call for a new election under
Article 17 of the Election Act, the Committee must first find impeachable misconduct
under Article 8. Since no finding of misconduct was made in this case, the
appellants conclude that sections 8.7 and 8.8 do not apply, and no election may
consequently be called under Article 17.
[43]
I
cannot accept these submissions.
[44]
The
Election Act is clear and unambiguous as to the authority of the Election
Appeal Committee, which is set out in multiple provisions throughout the Act.
When the Committee recommends under Article 8 that the office of an elected
official be vacated for impeachable misconduct, the Tribal Government must
declare the office vacant and forthwith call a by-election: sections 8.7 and
8.8 of the Act. When the Committee makes a recommendation as to whether or not a
candidate who was found ineligible by the Electoral Officer is to be
reinstated, its decision is binding and final: sections 12.4 and 12.5 of the
Act. When the Committee makes a decision following an election appeal under
Article 17, its decision is “irrevocable, binding, and final”: section 17.7 of
the Act. This is clear and unambiguous language.
[45]
The
submission that the decision of the Committee under section 17.7 is
unenforceable since it does not indicate to whom it is addressed is incongruous
and illogical. The Election Act is the result of an exercise in self-government
by the membership of the First Nation. When the membership of the First Nation
specifies that a decision of the Election Appeal Committee under Article 17 is
“irrevocable, binding, and final” it should be clear to all concerned,
including the appellants, that such a decision binds the First Nation as a
whole, including all its governance structures such as the Tribal Government
and the Electoral Officer. Were it otherwise, this would lead to the bizarre
proposition that a decision pursuant to Article 17 of the Election Act could be
ignored at whim of an illegitimately elected Tribal Government.
(c) Has the Election Appeal
Committee made a decision to compel new elections?
[46]
Largely
relying on the reasons of the Motion Judge, the appellants further submit that
the Election Appeal Committee has made a non enforceable “recommendation” to
call a new election, rather than a “decision” as provided for under section
17.7 of the Election Act.
[47]
The
turn of phrase the Committee used was the following: “we recommend that the
election be set aside and an election process be undertaken following the Act
as it is written.” The Application Judge found that this turn of phrase should
be viewed as a binding decision. I agree.
[48]
Depending
on the context, a “recommendation” may be viewed as non-binding advice or as a
binding decision: compare Thomson v. Canada (Deputy Minister of Agriculture),
[1992] 1 S.C.R. 385 with Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3
at paras. 42-43; see also R. v. British Coal Corp., [1935] UKPC 33,
[1935] A.C. 500.
[49]
In
Therrien (Re), above, the issue was whether a “recommendation” from the
Quebec Court of Appeal to remove a provincial judge from office could be viewed
as a final decision. Justice Gonthier found that, in light of the context, it
could be so viewed. He noted at para. 43 that “the report of the Court of
Appeal amounts to much more than the expression of a mere opinion; rather, it
is substantially in the nature of a decision”.
[50]
A
contextual and purposive analysis is thus required in this case to ascertain
whether the recommendation made by the Election Appeal Committee is to be
viewed as advice or as a binding decision.
[51]
Throughout
its provisions, the Election Act calls for the Election Appeal Committee to
make “recommendations”, but it treats such recommendations as binding
decisions. Thus, section 8.8 of the Act provides that when the Committee “recommends
that the elected official has vacated his or her office, the Tribal Government shall
declare the office vacant and forthwith call a By-election.” Likewise, when
dealing with a nomination appeal, section 12.4 of the Act provides that the
Committee will “make a recommendation ... as to whether or not the
ineligible candidate is to be reinstated”, while section 12.5 sets out that
this recommendation is “binding and final”.
[52]
Consequently,
applying a contextual and purposive approach to the matter, when a
“recommendation” to hold a new election is made by the Committee, this
“recommendation” should be treated as a decision which is “irrevocable,
binding, and final” under section 17.7 of the Act.
[53]
When
the Election Appeal Committee issued its report with the recommendation that
new elections be held, it could not have intended that its conclusion would be
simply advisory and without any effect. Calling for a new election is precisely
the purpose of an election appeal under Article 17, and the binding effect of
such a conclusion is indisputable in light of section 17.7 of the Act.
Consequently, irrespective of the precise wording used by the Committee in its
report, when it called for a new election to be held, this constituted a binding
decision under the meaning of section 17.7.
(d) Should the
decision of the Election Appeal Committee nevertheless be set aside?
[54]
As
an alternative relief, the appellants seek in effect a judicial review of the
decision of the Election Appeal Committee. They submit that the Committee (a) erred
in law and in fact by calling for new elections; and (b) breached the principles
of procedural fairness in reaching its decision. Consequently, in the event
their other submissions are rejected, they seek that the decision of the
Committee be set aside and that the matter be returned to it for a new
determination.
[55]
The
respondent notes that the appellants had the opportunity to challenge the
decision of the Election Appeal Committee through the initial judicial review
application, but chose to discontinue that application. The respondent
concludes from this that the appellants should not be allowed to raise such a
challenge. I disagree.
[56]
It
cannot be ignored that the appellants discontinued the initial judicial review application
by relying on the reasons set out in the order of the Motion Judge. Taking into
account the overall circumstances, the fact that in his own application the
respondent himself was seeking to quash and set aside the decision of the
Committee, and also taking into account the paramount interest of ensuring the
fairness of these proceedings, it is appropriate to address the arguments
raised by the appellants challenging the validity of the Committee’s decision.
Moreover, the evidentiary record supporting such a challenge was before the
Application Judge.
[57]
I
will first discuss the alleged errors of fact and law committed by the
Committee.
[58]
The
appellants basically submit that the deviations in the elections identified by
the Committee were not material enough to affect the results of the election,
and that consequently, the Committee did not act reasonably in calling for new
elections. They add that there was no evidence before the Committee which could
have supported a finding of vote buying, and that in any event, any allegation
of vote buying must be dealt with under Article 8 of the Election Act rather
than under Article 17.
[59]
Section
17.2 of the Election Act sets out that the grounds for an election appeal under
Article 17 are “restricted to election practices that contravene this Election
Act.” This surely includes allegations of vote buying, a practice which is
specifically prohibited by section 5.4 of the Act. Consequently, the Committee
was empowered under Article 17 to consider allegations of candidate misconduct related
to the election, including allegations of vote buying.
[60]
Thus
the Committee has a choice between two paths when assessing allegations of
candidate misconduct related to an election, including allegations of vote
buying: (a) it may treat such allegations under Article 8 of the Act: section
8.6; or (b) it may also treat these allegations under Article 17.
[61]
Under
Article 8, the Committee focuses on the allegations of misconduct by the
concerned individual in the context of impeachment proceedings: sections
8.5 and 8.7. Where the Committee determines the allegations are founded, the incumbent
must vacate the position to which he or she was elected, and a by-election must
be held forthwith to replace the incumbent: section 8.8 of the Act. In addition,
the incumbent is ineligible to run in an election for Chief or councillor for a
period of ten years: para. 18.1(i) of the Act. These measures apply
whether or not the misconduct had a material effect on the results of the
election. This is an important distinction with Article 17 of the Election Act.
[62]
Article
17 deals with another matter: the election practices themselves. Under
an election appeal pursuant to this Article, the issue to be determined by the
Committee is whether the election practices that contravened the Election Act
could have materially affected the results of the election: section 17.1. In
this case, the focus is not on the impeachment of a candidate found to have
contravened the Act, but rather on the election practices themselves, so as to ensure
the legitimacy of the results of an election, and by necessary implication, the
electoral legitimacy of the Tribal Government itself: sections 17.6 and 17.7.
[63]
As
a general rule, and contrary to an impeachment, an election will not be set
aside if the results do not appear to have been affected by the alleged
irregularities. This rule was put forward in Camsell v. Rabesca, [1987]
N.W.T.R. 186 and in Flookes and Longe v. Shrake (1989), 100 A.R. 98, 70
Alta. L.R. (2d) 374 (Q.B.), and it has been affirmed by the Supreme Court of
Canada in Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76 (“Opitz”)
at paras. 55 to 57. The rule was expressed as follows in Flookes and
Longe v. Shrake, above:
So the rule, then, on a review of these authorities
and subject to statutory modification, could be stated, in my view, as follows:
that the vote should be vitiated only if it is shown that there were such
irregularities that, on a balance of probabilities, the result of the election
might have been different; and secondly, that the vote could not be said to
have been a vote, that is, it was not conducted generally in accordance with
electoral practice under existing statutes.
[64]
This
is precisely how the Election Appeal Committee viewed its mandate under Article
17: “In considering these deviations the Committee asked whether the deviation
from the provisions of the Act would have a material effect on the outcome of
the election.”: Report at p. 2, AB at p. 139.
[65]
In
the election for the position of Chief, the appellant David Meeches received
618 votes while the respondent Dennis Meeches received 586 votes. Had 17 of the
votes cast for David Meeches been allocated to Dennis Meeches, the latter would
have been elected Chief. Dennis Meeches sought to have a new election called on
the ground that this small discrepancy in votes was attributable to the alleged
misconduct of David Meeches, including use of band funds to support his
campaign, and widespread vote buying.
[66]
The
Election Appeal Committee recognized that some band funds had been used by the
appellant David Meeches to support his campaign. It however noted that these
funds had been subsequently reimbursed: Report at p. 5, AB at p. 142. The
Committee also recognized that there were widespread allegations of vote buying
by the appellant David Meeches, and some evidence supporting these allegations:
ibid. David Meeches himself recognizes that he gave money to a voter on
the Election Day, but he submits that this was a charitable loan: affidavit of
David Meeches at para. 2, reproduced at pp. 219-220 of the AB. It is however
useful to note that section 5.4 of the Election Act prohibits “giving money”
“or anything given or exchanged of monetary value between the Nomination Day
and Election Day.”
[67]
The
Application Judge found that the Election Appeal Committee had concluded that
new elections were required on the ground of candidate misconduct which was sufficient
to affect the outcome of the election: Reasons at paras. 95 and 114 reproduced
above. I agree with the Application Judge that this is a reasonable
understanding of the decision of the Committee with respect to the election for
the position of Chief, taking into account the overall circumstances and the
record as a whole. As aptly stated by Justices Rothstein and Moldaver in Optiz
at para. 43, “[f]raud, corruption and illegal practices are serious. Where they
occur, the electoral process will be corroded.” See also Sideleau v.
Davidson (Controverted election for the Electoral District of Stanstead),
[1942] S.C.R. 306.
[68]
However,
since the allegations of candidate misconduct affecting the result of the
election primarily concerned the elected Chief David Meeches, I fail to
understand how the Committee could have called for new elections for the positions
of the councillors in light of the evidence before it. Indeed, no serious
allegations of vote buying or of other electoral misconduct were made against
the elected councillors. As the Committee noted in its Report, the allegations
of misconduct were all primarily made against David Meeches: Report at p. 5, AB
at p.142.
[69]
Thus
there was no evidence before the Committee of candidate misconduct on the part
of the elected councillors. The Election Appeal Committee further concluded that
the election process overall appears to have been fairly conducted. Moreover,
the vote tabulation does not show that the results of the elections for the
councillors might have been different in light of the irregularities or the
allegations of vote buying. As an example, there was a 122 vote margin between
the respondent Marvin Daniels (519 votes) and the next unsuccessful candidate
who received the most votes (397 votes): Electoral Officer’s Report, AB
pp.80-81.
[70]
The
only allegations concerning the elected councillors were alleged administrative
irregularities in the conduct of the elections which could not have affected
the results of the elections of the councillors. Justices Rothstein and
Moldaver have recently held in Opitz at para. 2 that administrative
irregularities in elections are often inevitable and, owing to the need for
finality and public confidence in election results, cannot in and of themselves
amount to a reasons for annulling an election.
[71]
Taking
into account all the circumstances and the applicable legal principles, it was
unreasonable for the Committee to call new elections for the elected positions
of councillors.
[72]
In
light of this conclusion, the submissions of the appellant councillors
concerning the alleged breaches of procedural fairness by the Election Appeal
Committee need not form the basis of this Court’s decision. I will simply note
that in calling new elections for their positions without hearing the affected
elected councillors, the Election Committee breached the principles of
procedural fairness. In future election appeals, the Committee would be well
advised to ensure that all affected councillors are heard prior to a decision
being made.
[73]
However,
though he appeared before the Committee, the appellant David Meeches
nevertheless also alleges breaches of procedural fairness. He submits that the
Committee did not provide him with the specifics of the allegations of misconduct
(vote buying) which had been made against him, and that this was a breach of
procedural fairness: affidavit of David Meeches at para. 3, AB at pp. 220 to
222.
[74]
A
duty of procedural fairness is incumbent on every public authority making an
administrative decision which affects the rights, privileges or interests of an
individual: Canada (Attorney General) v. Mavi, 2011 SCC 30,
[2011] 2 S.C.R. 504 at par. 38. The question in every case, however, is “what
the duty of procedural fairness may reasonably require of an authority in the
way of specific procedural rights in a particular legislative and
administrative context”.
[75]
The
requirements of procedural fairness must consequently be assessed contextually
in every circumstance, taking into account the legislative and administrative
context: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R.
653 at p. 682; Canada (Minister of Employment and Immigration) v. Chiarelli,
[1992] 1 S.C.R. 711, at p. 743; Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para. 21; Therrien (Re), above,
at para. 82; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R.
809 at para. 9; Canada (Attorney General) v. Mavi, above, at para. 39.
[76]
As
I have already noted, the Election Appeal Committee decided to treat the
allegations of misconduct under Article 17 of the Election Act rather than
under Article 8. The requirements of procedural fairness are different under
Article 17, which deals with the legitimacy of the election results, than under
Article 8 which deals with individual misconduct leading to impeachment and a ten
year disqualification from office.
[77]
There
is no formal requirement under Article 17 of the Act that a copy of the
election appeal documentation be forwarded to any candidate. Nevertheless, in
this case the Committee did call the elected Chief David Meeches to a hearing,
and he was fully aware that the principal issue of concern to the Committee was
the allegation of vote buying made against him. The Committee gave him an opportunity
to provide his views on this matter. In these circumstances, I cannot conclude
that the Committee breached the rules of procedural fairness such as to vitiate
its decision concerning the election for the position of Chief.
CONCLUSIONS
[78]
For
the reasons set out above, I would grant the appeals in part, set aside the
judgment of the Application Judge, and giving the judgment that the Federal
Court should have given, I would set aside that part of the Election Appeal
Committee decision which set aside the elections for the position of the
councillors (“Oginjigan”) and called new elections for these elected positions.
I would confirm that part of the Election Appeal Committee decision which set
aside the election for the office of Chief (“Ogema”) and called a new election
for this elected position, and order the First Nation’s officials and
employees, including the appellant members of the band council or Tribal
Government and the Electoral Officer, to organize forthwith in accordance with
the Election Act a new election for the remainder of the term of office of
Chief. Such election is to be held on the days determined by the Electoral
Officer, but no sooner than forty-five (45) days, and no later than
seventy-five (75) days from the date of this judgment.
[79]
To
avoid any ambiguity, since the decision of the Election Appeal Committee was
made pursuant to Article 17 of the Election Act, and since no recommendation
was made by the Committee under sections 5.4 or 8.8 of the Act, the appellant
David Meeches may continue to occupy the office of Chief until such time as the
results of the election called for above are known. In addition, and for the
same reason, he is not disqualified to run for office in that new election as a
result of the decision of the Election Appeal Committee.
[80]
The
respondent should be entitled to costs in the Federal Court, and in this Court
in appeal docket A-101-13, and such costs should be assumed by the appellant
David Meeches. There should be no order for costs in appeal docket A-102-13.
"Robert M. Mainville"
“I
agree.
Pierre Blais C.J.”
“I
agree.
D.G. Near J.A”
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