Date: 20111118
Docket: A-450-09
Citation: 2011 FCA 317
CORAM: EVANS J.A.
PELLETIER J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
ALMA POITRAS, LEO DESNOMIE,
LAMBERT STONECHILD,
INEZ DIETER, GLORIA, DIETER,
ELAINE PINAY, ELWOOD OSCAR PINAY,
DELMA POITRAS, FREDA EVELYN
DESNOMIE, GREGORY BRASS, AVEN ROSS,
EVELYN POITRAS, MARTINE DESNOMIE,
HOWARD DESNOMIE, ENOCH POITRAS
AND GERALD DESNOMIE
Appellants
and
CHIEF
BEVERLY BELLEGARDE
Respondent
Heard at Regina, Saskatchewan, on November
14, 2011.
Judgment delivered at Ottawa, Ontario, on November 18, 2011.
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON
J.A.
CONCURRED
IN BY: EVANS
J.A.
PELLETIER J.A.
Date: 20111118
Docket: A-450-09
Citation: 2011 FCA 317
CORAM: EVANS
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
ALMA POITRAS, LEO DESNOMIE,
LAMBERT STONECHILD,
INEZ DIETER, GLORIA, DIETER,
ELAINE PINAY, ELWOOD OSCAR PINAY,
DELMA POITRAS, FREDA EVELYN
DESNOMIE, GREGORY BRASS, AVEN ROSS,
EVELYN POITRAS, MARTINE DESNOMIE,
HOWARD DESNOMIE, ENOCH POITRAS
AND GERALD DESNOMIE
Appellants
and
CHIEF BEVERLY BELLEGARDE
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1]
The respondent applied for judicial review after
being removed as Chief of the Peepeekisis First Nation (First Nation) and
prohibited from holding office for 10 years. Justice Zinn of the Federal Court
(the judge) allowed the application and by judgment dated September 30, 2009,
ordered, among other things, that the respondent be reinstated as Chief. The
judge’s reasons for judgment are published as 2009 FC 968. The appellants
appeal from that judgment. For the reasons that follow, I would dismiss the
appeal.
[2]
The respondent was first elected Chief in a
by-election on September 10, 2005 and was subsequently re-elected in a regular
election on December 17, 2006. Her term expired on December 16, 2010. She did
not run for re-election. The respondent submits that the matter is moot because
a decision from this Court will not resolve any controversy between the parties
and will not have any practical effect on their rights. The appellants agree
that the matter is “technically moot” but request that the Court address the
merits of the appeal as a matter of principle.
[3]
I agree with the respondent that the matter is
moot insofar as it relates to the removal of the respondent as Chief. However,
the 10-year prohibition and the costs awarded by the judge remain live issues.
At the hearing, the respondent’s counsel conceded this point.
Background
[4]
The factual background is detailed in the
judge’s reasons and need not be repeated. Suffice it to say that the crux of
the matter involves competing claims as to the constitution of the Council of
Elders (the Council) as defined in Article 1.3 of the Peepeekisis First Nation
Customs Election Act (the Election Act). The definition reads:
“Council of Elders” means the body of persons recognized by
Tradition in the
Community for their wisdom and ability by reason of their age and
experience.
The Federal
Court Decision
[5]
The judge concluded that there was insufficient
evidence to establish that either of the two purported Councils satisfied the
criteria of the Election Act, or custom. Consequently, the appellants’ Council
(responsible for the removal and prohibition) was not properly constituted
(judge’s reasons, paras. 38-45). Even if it were otherwise, the judge found
that procedural fairness and natural justice were not observed for three
reasons. First, the respondent was not given notice prior to the removal.
Second, the appellants’ Council had already reviewed and commented on the
removal, thus effectively pre-judging the matter (the subsequent meeting could
not cure the deficiency as there was no evidence that the appellants’ Council
was prepared to reconsider the removal). Third, only some Elders were provided
with notice of the meeting when the respondent was removed (judge’s reasons at
paras. 46-50).
The Allegations
of Error
[6]
The appellants assert that the judge erred in failing
to find:
1)
the respondent ought to have engaged the
internal election appeal procedure;
2)
the appellants’ proposed Council is the
appropriate Council as defined by the Election Act, as a result of custom;
3)
the respondent was not entitled to relief because
she did not come to the court with “clean hands”.
The appellants also take issue with the judge’s costs award.
Analysis
Internal
Election Appeal Procedure
[7]
It is not clear from the record whether this
specific argument was made to the judge. The appellants claim that an appeal
process is provided in the Election Act and it was incumbent on the respondent
to exhaust that process before turning to the Court. As stated, the judge found
that neither of the purported Councils was properly constituted. In my view,
for reasons that are discussed under the next subheading, on the basis of the
record, the judge’s conclusion is unassailable. It necessarily follows that
there could be no legitimate appeal process to an improperly constituted
Council. Moreover, by its terms, the appeal process in the Election Act appears
to be limited to disputes regarding election results. Finally, even if Article
8 applies, the judge retains discretion to entertain the application: Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. This
argument therefore must fail.
The Council as
defined by custom
[8]
It appears to be common ground that “Council of
Elders” is so broadly defined that its application must be determined by
custom. The judge’s reasons set out in considerable detail the various
difficulties associated with each of the proposed Councils (judge’s reasons,
paras. 18-24, 38-42). I need not reiterate the judge’s reasons. A few examples
will suffice.
[9]
The members of the Council proposed by the
respondent emanate from a membership meeting on January 6, 2006, focussed on
the role of the Council within the First Nation, its structure and its members
(appeal book, vol. 1, p. 74). On cross-examination, the appellants acknowledged
that the meeting was preceded by a survey of the First Nation and was designed
to ascertain who was viewed as an Elder (appeal book, vol. 3, tab 20, pp.
895-896). On its face, this appears to represent an attempt to identify the
members of the Council established in accordance with the traditional views of
the First Nation. However, the names forwarded by the respondent to Indian and
Northern Affairs Canada (INAC) as constituting the Council do not match exactly
the list created following the meeting (appeal book, vol. 1, p. 80, compared to
appeal book, vol. 1, p. 79). There was also evidence that the meeting was not a
general band meeting (appeal book, vol. 2, p. 696). Additionally, there is
affidavit evidence indicating that, according to custom, replacement members
must be chosen by the recognized Council (appeal book, vol. 1, tab 7, p. 113).
[10]
The Council proposed by the appellants
ostensibly obtained its authority from a Band meeting on October 25, 2008. The
minutes of this meeting purport to appoint all Elders “who identify themselves
as such” (appeal book, vol. 2, p. 453). Such a broad and general criterion
appears to be inconsistent with the language of the Election Act, which
envisages external criteria (such as traditional knowledge) being required. One
appellant spoke of the cultural tradition of requiring grand-children before
one could qualify as an Elder (appeal book, vol. 3, p. 896). The same appellant
appeared to recognize a past practice of prior elders appointing their
replacements (appeal book, vol. 3, p. 890). Such requirements appear to go
beyond mere self-identification. More significantly, as the judge noted, even
if the appellants’ Council were accepted as legitimate, its power is limited to
election appeals. This factual determination arises from the wording of the
resolution relied upon by the appellants, which simply appoints elders to “take
part in appeal if there is one” (appeal book, vol. 2, p. 453). At the meeting,
a motion was tabled (ultimately not passed) to limit the Council’s role to an
advisory capacity.
[11]
In my view, the judge did not err in concluding
that, on the record, neither of the proposed Councils was properly constituted.
However, the appellants further assert that the judge should have limited his
finding to a confirmation that custom dictates the composition of the Council
and that he had insufficient evidence to make such determination. According to
the appellants, had the judge confined his finding as suggested, there would be
no ground upon which to set aside the decision of the appellants’ proposed
Council. With respect, I do not see how this can be. Since the appellants
asserted their Council was the customary Council, it was essential that they
provide sufficient evidence to enable the judge to conclude that this was so.
In other words, it was incumbent upon the appellants to establish that its
Council was the properly constituted Council, in accordance with custom. This
the appellants failed to do. Moreover, even if I were to assume that the
appellants are correct in this respect, and I do not, the judge also concluded
that there had been a breach of procedural fairness on the part of the
appellants’ Council. I will return to breach of procedural fairness later in
these reasons.
Clean Hands
[12]
The appellants contend that the judge erred in
failing to dismiss the application due to the respondent’s lack of “clean
hands.” In this respect, the appellants refer to the respondent’s alleged
misconduct. This ground is problematic because the argument was not made to the
judge when the application was heard. Consequently, the judge cannot be faulted
for failing to do that which he was not asked to do. Moreover, and in any
event, a court is not bound to dismiss an application for judicial review
solely because the applicant does not have “clean hands”: Thanabalasingham v.
Canada (Minister
of Citizenship and Immigration), 2006 FCA 14. This argument also fails.
Procedural
Fairness
[13]
The judge found that procedural fairness and
natural justice were not observed with respect to the removal of the respondent
as Chief. This, he reasoned, was sufficient, in and of itself, to set aside the
decision, unless it could be established that it is the custom of the First
Nation not to observe those principles (judge’s reasons, para. 46). After
examining the procedural protections contained in the Election Act, the judge
concluded that no lesser standard was acceptable when proposing the removal of
a duly elected Chief. The judge specifically identified a number of breaches
(judge’s reasons, paras. 47-50). The appellants have not taken issue with any
of these findings. On this basis alone, the appellants’ appeal must fail.
Costs
[14]
The appellants take issue with the judge’s costs
award, but provide no specific indication regarding error on the judge’s part.
The appellants merely request, without more, that the judge’s order be reversed
and that no costs be awarded on the appeal.
[15]
The appellants took no issue with the
respondent’s bill of costs submitted to the judge. The First Nation declined to
make submissions notwithstanding the judge’s invitation to it. An award of
costs is a discretionary order: Federal Courts Rules, SOR/98-106, Rule
400(1). Absent an error of law or a wrongful exercise of discretion, an
appellate court is not at liberty merely to substitute its own exercise of
discretion for the discretion already exercised by the judge: Apotex Inc. v.
Merck & Co. Inc., 2006 FCA 324. No error of law or wrongful exercise of
discretion has been demonstrated. I would not disturb the judge’s costs award.
[16]
Beyond the fact that the litigation has been and
continues to be expensive, the appellants provide no justification for this
Court to depart from the general rule that costs normally follow the event. I
am not persuaded that this unfortunate reality warrants a departure from the
general rule.
Conclusion
[17]
For the foregoing reasons, I would dismiss the
appeal with costs.
“Carolyn Layden-Stevenson”
“I
agree
John
M. Evans J.A.”
“I
agree
J.D.
Denis Pelletier J.A.”
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