Docket: A-558-15
Citation:
2016 FCA 239
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CORAM:
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GAUTHIER J.A.
STRATAS J.A.
GLEASON J.A.
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BETWEEN:
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VICTOR COUTLEE
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Appellant
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and
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LOWER NICOLA
INDIAN BAND
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Respondent
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REASONS
FOR JUDGMENT
GAUTHIER J.A.
[1]
The Appellant, Mr. Victor Coutlee, an elder of
the Lower Nicola Indian Band (LNIB) appeals the decision of the Federal Court (2015
FC 1305) dismissing his application to quash the June 6, 2013 decision of the
Electors of the LNIB to amend the Custom Election Rules (“Rules”) of the
Respondent. The amendment removed the Council of Elders from the task of
officiating election appeals. Although the Appellant was unsuccessful, the
Federal Court nevertheless ordered costs in the amount of $10,000 in his favour.
[2]
In respect of this application, the Federal
Court had to determine:
(i)
The standard of review applicable to the Band
Council’s interpretation of the Rules.
(ii)
Whether the Band Council made a reviewable error
in interpreting paragraph 31 of the Rules and whether the process set out in
the Rules for amendment was followed.
[3]
The Federal Court found that the standard of
reasonableness applied to the Band Council’s interpretation of the Rules
and that the Band Council resolution dated May 14, 2013 signed by the Chief and
five of the Councillors could validly initiate the process for amending the Rules
in accordance with paragraph 31 of the Rules. The Federal Court also concluded
that the procedure set out in paragraphs 32 and 33 of the Rules had been
adhered to and that in fact the Band Council had “surpassed”
the procedural requirements set out in paragraph 32 of the Rules: paragraph
19 of the reasons of the Federal Court.
[4]
The role of this Court on appeal of decisions
made by the Federal Court on judicial review is to determine whether the
Federal Court identified the appropriate standard of review applicable to each
issue before it and applied it correctly. In other words, this Court steps into
the shoes of the Federal Court and focuses on the administrative decision under
review: Agraira v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 36 at paras. 45-46, [2013] 2 S.C.R. 559.
[5]
The Appellant submits that the Federal Court
applied the wrong standard of review to the Band Council’s interpretation of
the Rules. I do not agree. The Federal Court properly applied the most
recent caselaw of this Court and correctly determined that the standard of
reasonableness applied. The authorities relied upon by the Appellant have been
overtaken by subsequent jurisprudence of the Supreme Court of Canada and of
this Court.
[6]
I am also satisfied substantially for the reasons
given by the Federal Court that the Band Council’s interpretation of paragraph
31 of the Rules was reasonable and that the process followed to amend
the Rules in 2013 met the requirements set out in the Rules.
[7]
This should be sufficient to dispose of the
appeal. However, before this Court, the Appellant attempted to raise a new
issue not raised in his Amended Notice of Appeal (procedural fairness) as well
as an issue that was not raised before the Federal Court, namely whether some
of the Band Councillors who signed the resolution were ineligible to vote.
[8]
Normally, the Court cannot entertain arguments
that have not been raised in the Amended Notice of Appeal. Counsel for the
Appellant acknowledged that this was so but submitted that the argument was
somehow implicitly raised in the Amended Notice of Appeal. I cannot agree. But
in any event, I am satisfied that the argument has no merit. The record reveals
that substantial notice was given to the Band membership at large: paragraphs
10-13, 15 and 16 of the reasons of the Federal Court. The Appellant simply
failed to use the opportunity given to voice his views and concerns.
[9]
In my view, the Court should not consider the new
argument that some of the signatories of the Band Council resolution were ineligible
to vote and thus there was no quorum on May 14, 2013. This question is not
a pure question of law; it involves a mixed question of fact and law which
should have been put to the Federal Court. There are no valid reasons in this
case to use our discretion to consider this new argument. In any event, in my
view, the Appellant’s argument in that respect has no merit: Lower Nicola
Indian Band v. Mary June Coutlee, 2013 FC 1069, at para. 34; See also
Appeal Book Volume 3, pages 609, 617.
[10]
In the circumstances, I would dismiss the
appeal.
[11]
As noted earlier, the Federal Court granted costs
to the Appellant despite the fact that the application had no merit. By
undertaking an appeal that had no merit and forcing the LNIB to expend further
costs to defend it, the LNIB should be granted its costs on this appeal. I
propose to fix those costs in the amount of $2,000 (all inclusive).
[12]
Now that this dispute has been determined and
the Rules clarified, I hope that the parties can put aside any acrimony
that existed in the past and work together for the betterment of their entire
community.
“Johanne Gauthier”
“I agree
David Stratas J.A.”
“I agree
Mary J.L. Gleason J.A.”
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