Date: 20120417
Docket: A-349-11
Citation: 2012 FCA
115
CORAM: PELLETIER J.A.
GAUTHIER J.A.
STRATAS J.A.
BETWEEN:
MIKE ORR
Appellant
and
JIM BOUCHER, RAYMOND POWDER,
DAVID BOUCHIER,
AND FORT MCKAY FIRST NATION
Respondents
Heard at Edmonton, Alberta, on April 16, 2012.
Judgment delivered at Edmonton, Alberta,
on April 17, 2012.
REASONS FOR JUDGMENT BY: STRATAS
J.A.
CONCURRED IN BY:
PELLETIER J.A.
GAUTHIER J.A.
Date: 20120417
Docket: A-349-11
Citation: 2012 FCA 115
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
STRATAS
J.A.
BETWEEN:
MIKE ORR
Appellant
and
JIM BOUCHER, RAYMOND POWDER, DAVID
BOUCHIER,
AND FORT MCKAY FIRST NATION
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
This is an
appeal from the judgment of the Federal Court (per Justice Russell):
2011 FC 1035. The Federal Court dismissed an application for judicial review
brought by Mr. Orr. In that judicial review, Mr. Orr sought to set aside a
decision of the returning officer concerning an election held in the Fort McKay
First Nation in April 2011.
[2]
Under the
First Nation’s Election Code, complaints about the election can be made and can
be appealed to an appeal arbitrator. From there, parties are at liberty to
bring an application for judicial review to the Federal Court.
[3]
In this
case, Mr. Orr raised a number of complaints concerning the election. His
complaints can be grouped into two categories. He pursued each category of
complaint in a different way:
● Complaints
about voter ineligibility and failures to produce identification. Mr Orr
pursued these complaints by way of appeal to the appeal arbitrator, using the
prescribed form under the Election Code and paying the requisite fee.
● Complaints
about the nomination and eligibility of the individual respondents to stand as
candidates. Mr. Orr pursued these complaints by way of an application for
judicial review directly to the Federal Court. Then he appealed to this Court.
This is the present appeal.
[4]
The
Federal Court dismissed Mr. Orr’s application for judicial review because, on
the facts, Mr. Orr had an adequate and effective avenue available to him to
redress the returning officer’s ruling: the appeal to the appeal arbitrator
under the Election Code. Mr. Orr did not pursue that avenue.
[5]
On the
evidence before it, the Federal Court found that a qualified appeal arbitrator
was “in place well before the election and the declaration of election result”
and that Mr. Orr “had the opportunity to put forward [the grounds of complaint]
using the appeal process” (at paragraph 65). This was shown by the fact that,
as previously mentioned, Mr. Orr did launch appeals to the appeal arbitrator
concerning other complaints.
[6]
The Federal
Court recognized that its decision was a discretionary one, so it considered
other relevant factors. It underscored the need for election disputes in the
First Nation to be resolved quickly, the First Nation’s choice to insert a
quick appeal process in its Election Code in order to achieve that end, and the
importance of ensuring that that process “not be undermined by allowing an
alternative process to run parallel to [that process]” (at paragraphs 59-60).
In the end, the Federal Court exercised its discretion against Mr. Orr
proceeding by way of judicial review.
[7]
Based as
it is on an exercise of discretion, the judgment of the Federal Court can only
be set aside if Mr. Orr shows that there was a palpable and overriding error in
the Federal Court’s findings of fact or a fundamental legal error. Mr. Orr has
not shown this.
[8]
The
Federal Court had an ample factual basis for the exercise of its discretion.
Further, it exercised its discretion consistently with the principles set out
in Canada (Border Services Agency) v.
C.B. Powell Limited,
2010 FCA 61 and Laurent v. Fort McKay First Nation, 2009 FCA 257. Absent
well-recognized exceptions, parties must pursue any adequate and effective
recourse available to them before bringing an application for judicial review.
[9]
Mr. Orr
advanced two particular submissions during oral argument in this Court.
[10]
First, Mr.
Orr submitted that the Federal Court was wrong to find that he did not appeal
to the appeal arbitrator. Mr. Orr referred us to a letter that he sent to the
returning officer. He submitted that this was, in effect, a notice of appeal to
the appeal arbitrator. He also pointed to some documents that show that
the returning officer did regard the letter as if it were an appeal. He added
that if the letter were not in proper form and the requisite fee had not been
paid, the returning officer should have told him. The Federal Court rejected these
submissions, finding that the letter did not qualify as an appeal to the appeal
arbitrator (at paragraph 46).
[11]
On this,
there is no basis to interfere with the Federal Court’s finding. In order to
appeal to the appeal arbitrator, one must file with the returning officer a
notice of appeal in proper form and the requisite fee: Election Code, section
83.1. Mr. Orr’s letter is not a notice of appeal in proper form, and he did not
pay the fee. In addition, I do not agree that in these circumstances the
returning officer was under some obligation to advise Mr. Orr that his letter
was not a notice of appeal and that he had not paid the requisite fee. Equally,
it could be said that Mr. Orr should have approached the returning officer and
inquired into why his appeal was not being processed. But he did not do so,
choosing instead to bring his application for judicial review to the Federal
Court without pursuing the appeal route that was available under the Elections
Code.
[12]
Second,
Mr. Orr submitted that he could not appeal to the appeal arbitrator. In his
view, the subject-matter of his complaint – the returning officer’s acceptance
of the allegedly invalid nomination papers filed by the individual respondents
– was governed by section 13.4 of the Election Code. He says that under the
Election Code no appeals lie from that.
[13]
I
disagree. If the returning officer misinterpreted or misapplied section 13.4 of
the Election Code, an appeal to the appeal arbitrator would lie under section
81.1. Under that section, an appeal may be brought if “the returning officer
made an error in the interpretation or application of the Code which affected
the outcome of the election.”
[14]
Therefore,
for the foregoing reasons, I would dismiss the appeal, with costs.
"David Stratas"
“I
agree.
J.D. Denis Pelletier J.A.”
“I
agree.
Johanne Gauthier J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-349-11
APPEAL FROM A JUDGMENT OF THE HONOURABLE
MR. JUSTICE RUSSELL DATED SEPTEMBER 1, 2011, DOCKET NO. T-507-11
STYLE OF CAUSE: Mike
Orr v. Jim Boucher et al.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 16, 2012
REASONS FOR JUDGMENT BY: STRATAS J.A.
CONCURRED IN BY: PELLETIER,
GAUTHIER
JJ.A.
DATED: April 17, 2012
APPEARANCES:
|
Priscilla Kennedy
|
FOR THE APPELLANT
|
|
J. Trina Kondro
|
FOR
THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
Davis
LLP
Edmonton,
Alberta
|
FOR THE APPELLANT
|
|
Ackroyd LLP
Edmonton, Alberta
|
FOR
THE RESPONDENTS
|
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