Docket: A-425-14
Citation: 2015 FCA 284
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CORAM:
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PELLETIER J.A.
NEAR J.A.
GLEASON J.A.
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BETWEEN:
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CHIEF DELBERT
WAPASS AND THUNDERCHILD FIRST NATION BAND
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COUNCIL
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Appellants
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and
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IVAN WEEKUSK
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Respondent
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REASONS FOR
JUDGMENT
PELLETIER
J.A.
[1]
Mr. Weekusk was suspended as a Headman (or
Councillor) of the Thunderchild First Nation (“the
Thunderchild F.N.”) on the basis of a complaint which he had not seen
and following a meeting of the Thunderchild F.N. Council (the Council) of which
he had no notice. At the same time, the Council resolved to make application to
the Appeal Tribunal, constituted under the Thunderchild First Nation Appeal
Tribunal Act as enacted by the Thunderchild F.N. Government, to have Mr.
Weekusk removed as a Headman. The Notice of Application was filed shortly
thereafter. Mr. Weekusk filed a Notice of Dispute with the Appeal Tribunal in
response to the Council’s application but took no further steps to challenge
the action taken against him until he made an application for judicial review
in October 2013, almost two years to the day after his suspension. As of that date,
the Appeal Tribunal had not considered the Council’s application and, to this
date, it still has not done so.
[2]
Mr. Weekusk’s application for judicial review
was challenged on the basis that it was made outside the 30-day time limit set
out in subsection 18.1(2) of the Federal Courts Act, R.S.C. 1985 c. F-7
and that no motion for an extension of time had been made or granted before the
hearing of the application. The Federal Court found that the 30-day time limit
applied but, on the basis of the application itself, found an implicit request
for an extension of time which it granted. The Federal Court went on to conclude
that the decision to suspend Mr. Weekusk and to request his removal from office
was made in breach of the requirements of procedural fairness and set it aside.
While the Court’s finding as to the extension of time was not the subject of an
explicit term in the Court’s judgment allowing the application for judicial
review, it is the only ground of appeal raised by Chief Wapass and the Thunderchild
First Nation Band Council (the Chief and Council).
[3]
For the reasons which follow, I would allow the
appeal, set aside the decision of the Federal Court and, rendering the decision
which the Federal Court should have given, I would dismiss the application for
judicial review.
I.
BACKGROUND:
[4]
On October 14, 2011, a member of the
Thunderchild F.N. wrote to the Council alleging that Mr. Weekusk had breached
his oath of office by failing to work as a collective with other members of the
Council and by failing to attend Council meetings and various Thunderchild F.N.
community events. By letter dated October 20, 2011, Chief Wapass wrote to Mr.
Weekusk to advise him that, after considerable deliberation, the Council
decided to take disciplinary action against him, specifically suspending him as
a Headman without pay and applying to the Appeal Tribunal to have him removed
as a Headman.
[5]
On December 2, 2011, Chief Wapass filed a Notice
of Application with the Appeal Tribunal seeking an order that Mr. Weekusk be
removed as a Headman of the Thunderchild F.N. On December 23, 2011, Mr. Weekusk
filed a Notice of Dispute with the Appeal Tribunal asking that the application
to have him removed from office be dismissed and that he be paid “the entire amount owed to him”: Appeal Book, at p.
142. Mr. Weekusk contacted the Registrar of the Appeal Tribunal on several
occasions, inquiring as to the status of this matter. In spring 2013, he
specifically asked that a hearing of his matter be held but was advised that
the Appeal Tribunal had chosen to deal with certain other matters before
dealing with his.
[6]
On October 25, 2013, Mr. Weekusk commenced his
application for judicial review seeking the following relief:
1-
An order pursuant to section 18.1(3) of the Federal
Courts Act in the nature of certiorari quashing the decision of Chief
Delbert Wapass and the Thunderchild First Nation Council to suspend Councillor
Weekusk without pay and apply to the Appeal Tribunal for his removal.
2-
A Declaration pursuant to Section 18.1(3) of the
Federal Courts Act that the Decision of the Chief and Council to suspend
Councillor Weekusk without pay is invalid or unlawful.
3-
A Declaration pursuant to Section 18.1(3) of the
Federal Courts Act that the Appeal Tribunal be prohibited from hearing
the application to remove Councillor Weekusk from elected office.
4-
A Declaration that Councillor Weekusk is
restated [sic] to office and continues to be a lawfully elected Councillor of
Thunderchild.
5-
A Declaration that this application be allowed
to proceed at the present time.
6-
Such other orders as the Honourable Court see
just.
Appeal Book at
page 34.
[7]
This appeal concerns the 5th head of
relief, the declaration that the application be allowed to proceed. Among the
grounds for the application for judicial review, Mr. Weekusk included the
following:
Further, as the Appeal Tribunal has not had
a hearing or made a decision with respect to the issues forming the basis of
the current Application before this Honourable Court, this matter is a
continuing one such that the time limits for a judicial review application
under section 18.1 of the Federal Courts Act do not apply in this case.
Appeal Book, at p. 37
[8]
In Mr. Weekusk’s memorandum of fact and law
before the Federal Court, the only reference to the time limit for bringing an
application for judicial review appears under the heading Chief Wapass’s
Application to the Appeal Tribunal Cannot Have effect as the Inordinate Delays
Have Unduly Prejudiced Councillor Weekusk. There, Mr. Weekusk argues
that “as the Tribunal has not had a hearing or made a
decision with respect to the issues forming the basis of the current
Application before this Honourable Court, this matter is an ongoing one such
that the time limits for a judicial review application under section 18.1 of
the Federal Courts Act do not apply to this case.”
[9]
In the memorandum of fact and law filed on
behalf of the Chief and Council, the respondents raise the question of the 30-day
time limit. They argue that the decision under review was made well beyond the
30-day time limit and that no application for an extension of time has been
sought. They acknowledge however that the request for a declaration that the
application be allowed to proceed at the present time could be interpreted as
an application for an extension of time. That said, they rely on the decision
in Canadian Council on Social Development v. Canada (Attorney General),
2012 FC 1530, 42 F.T.R. 102, for the proposition that the onus of demonstrating
that an extension of time should be granted lies with the applicant. They then
review the four-point test set out by this Court in Canada (Attorney
General) v. Larkman, 2012 FCA 204, [2012] F.C.J. No. 880 (QL) (Larkman)
and conclude that the test has not been met. In particular, they note that
there is no evidence of a continuing intention to pursue an application for
judicial review and that the delay in bringing the application has not been
satisfactorily explained.
II.
THE DECISION UNDER APPEAL
[10]
Before considering the merits of Mr. Weekusk’s
application, the Federal Court addressed the question of the timeliness of the
application. In its reasons, reported as 2014 FC 845, the Federal Court noted
Mr. Weekusk’s argument that the decision to suspend him was a temporary or
interim measure pending the decision of the Appeal Tribunal. A decision of the
Appeal Tribunal would have been a final decision but since the latter made no
decision, the matter is ongoing and the 30-day time limit does not apply.
[11]
The Federal Court found that the decision of the
Chief and Council was a single decision with two parts: the suspension of Mr.
Weekusk and the application to the Appeal Tribunal to have him removed from
office. The Court further noted that Mr. Weekusk could have sought judicial
review of that decision at the time it was made but recognized that the
application to have him removed from office could have introduced some
uncertainty as to the next step to be taken. The Federal Court rejected the
proposition that Mr. Weekusk should have sought judicial review of his
suspension while pursuing his remedies before the Appeal Tribunal on the
grounds that such a course of action would result in a multiplicity of
proceedings.
[12]
The Federal Court then examined the Thunderchid
F.N. statutes and noted that while a complainant had a right of appeal to the Appeal
Tribunal if Council decided not to proceed with a complaint, surprisingly, a
person affected by Council’s decision in response to a complaint had no such
right.
[13]
At paragraph 50 of its reasons, the Federal
Court found that:
Although I find that the decision made by
the Chief and Council on October 18, 2011 was a final decision and that the
applicant could have sought judicial review of that decision at that time, I
acknowledge that the applicant reasonably assumed that the Appeal Tribunal
would address the issue of his permanent removal which was a consequence of the
same complaint and which flowed from his suspension.
[14]
The Court then went on to find that there was
justification to extend the period of time to allow the judicial review to
proceed. The Court acknowledged that while Mr. Weekusk did not bring a formal
motion to extend the time for bringing his application, nonetheless, by
bringing the application and addressing the reasons for not pursuing the
application earlier, even though implicitly, he had established through this
record that the application should proceed.
[15]
The Federal Court then considered the Larkman
factors. It recalled this Court’s admonition that, while the importance of each
of the factors depends upon the circumstance of the case, the overriding
consideration is that the interests of justice be served.
[16]
The Court found that there was an explanation
for Mr. Weekusk’s delay in bringing his application in that he was awaiting a
decision by the Appeal Tribunal and, in fact, had contacted the latter to
inquire when it would proceed with his matter. The Court also found that Mr.
Weekusk’s Notice of Dispute to the Appeal Tribunal was evidence of his
intention to pursue at least that part of the Council’s decision that sought
his removal from office.
[17]
On the question of prejudice to the respondents,
the Court found that while the Chief and Council argued that they were
prejudiced by the delay, there was no evidence of prejudice.
[18]
Finally, the Court found that the Mr. Weekusk’s
application had potential merit so that it was in the interests of justice that
the application be allowed to proceed.
III.
DISCUSSION
[19]
As usual, the first question to be addressed is
the standard of review.
[20]
This case is unique in that, in the absence of a
request for an extension of time, the Court found that certain conduct
nonetheless was capable of being construed as such a request.
[21]
The Federal Court was not misled by the
contents of Mr. Weekusk’s written materials:
Although the applicant did not bring a
formal motion to extend the time limit for his application for judicial review,
by bringing this application and by addressing the reason for not pursuing the
application earlier, even if this is implicit, he has established through his
record that the application should proceed.
Federal Court Reasons at paragraph 56
[22]
While acknowledging that Mr. Weekusk had not
made an application for an extension of time, the Federal Court nonetheless
construed certain elements as an implicit request for an extension of time. On
any standard of review, this is an error which justifies our intervention.
[23]
The fact that Mr. Weekusk did not apply for an
extension of time does not mean that he did not address his mind to the issue. He
considered the matter and decided that no extension of time was required
because the subject of his application was a continuing matter. Consistently
with this position, he did not address the factors to be considered in a motion
for an extension of time, either in his affidavit or in his memorandum of fact
and law, other than to state his legal conclusion that the time limit did not
apply to him.
[24]
It is true that one of the heads of relief in
Mr. Weekusk’s notice of application is for a declaration that “this application be allowed to proceed at the present time”.
However, this must be read in the light of the balance of his pleadings. On a
fair reading of those pleadings, I believe that this request for a declaration
is simply a request for confirmation that the 30-day time limit does not apply
to Mr. Weekusk’s application for judicial review.
[25]
The Chief and Council, in their memorandum of
fact and law, took issue with Mr. Weekusk’s legal conclusion that the 30-day
time limit did not apply to his application. The matter was debated before the
Federal Court. As that debate is reported in the Federal Court’s reasons, it
appears that Mr. Weekusk maintained his original position: see paragraphs 20 to
24 of the Federal Court’s reasons. The question of an implicit request for an
extension is raised by the Chief and Council in their representations, not by
Mr. Weekusk. To the extent that the Larkman factors were raised, they
were raised by the Chief and Council: see paragraphs 31-34 of the Federal
Court’s decision.
[26]
As noted earlier in these reasons, the Federal
Court found that Mr. Weekusk was wrong in law, that the 30-day time limit
applied to him, and that he could have applied for judicial review at the time
the decision under review was made. The Court went on to find that “by bringing this application and by addressing the reason
for not pursuing the application earlier, even if this is implicit, he has
established through his record that the application should proceed”: see
the Federal Court’s reasons at paragraph 56.
[27]
With respect, I am unable to agree with the
Federal Court’s conclusions. The fact of bringing the application cannot be
taken as a request for an extension of time when Mr. Weekusk’s position
throughout was that the 30-day time limit did not apply to him. To do so would
be to put into Mr. Weekusk’s mouth words which he chose not to speak.
[28]
As for Mr. Weekusk’s “addressing
the reason for not pursuing the application earlier, even if this is implicit”,
I can find no evidence in the record that Mr. Weekusk addressed the reasons for
not pursuing his application earlier. He did not do so in his affidavit nor in
his memorandum of fact and law. If he addressed the subject in any way, it must
have been through counsel’s representations which, of course, are not evidence.
In any event, Mr. Weekusk’s explanation as to why he did not proceed earlier
would be relevant to the granting of an extension; it is not relevant to the
question of whether a request for an extension was made.
[29]
Given the circumstances of Mr. Weekusk’s
suspension, one can see why it might be thought that the interests of justice
require that he be given a remedy. But justice must be done to both parties.
There was an onus on Mr. Weekusk to ask for and to show that he should be
granted an extension of time. The respondents had the right to challenge his claim
by cross-examining him on his affidavit. For their part, the respondents had
the right to show that the delay had prejudiced them. It is unfair to reproach
them for having failed to show prejudice when there was no application for an
extension of time before the Court.
[30]
Mr. Weekusk might have prevailed if he had made
an application for an extension of time before bringing his application for
judicial review. He chose to proceed on the basis that he did not need an
extension. It is not inconsistent with the interests of justice to hold him to
his choice.
[31]
I would therefore allow the appeal with costs in
this Court and in the Federal Court, set aside the order of the Federal Court,
and rendering the order which the Federal Court should have made, I would
dismiss the application for judicial review.
"J.D. Denis Pelletier"
“I agree
Near J.A.
“I agree
Gleason J.A.”
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