Docket: A-155-16
Citation:
2017 FCA 123
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CORAM:
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WEBB J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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GARNET MEECHES
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Appellant
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and
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GEORGE ASSINIBOINE, MARVIN DANIELS, BARB ESAU, ROBERT FRANCIS,
GEORGE MEECHES, LIZ MERRICK, HAROLD MYERION, ANNETTE PETERS, DENNIS PETERS,
MARSHALL PRINCE, THERESA SANDERSON, CHRIS YELLOWQUILL and LONG PLAIN INDIAN
BAND NO. 287 also known as LONG PLAIN FIRST NATION
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Respondents
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REASONS
FOR JUDGMENT
SCOTT J.A.
[1]
In a judgment reported at 2016 FC 427, McDonald
J. (the Judge) of the Federal Court dismissed Mr. Garnet Meeches’ (the
appellant) application for judicial review of a decision rendered by the Long
Plain First Nation Election Appeal Committee (the EAC) on May 12, 2015, (the
Decision) regarding the results of an election held by the Long Plain First
Nation (Long Plain) on April 9, 2015. I would dismiss this appeal, but, as is
more fully discussed below, arrive at this conclusion for reasons different
from those of the Judge.
I.
Background
A.
The Parties
[2]
Long Plain is a band within the meaning of the Indian
Act, R.S.C. 1985, c. I-5, governed by a council composed of a Chief and four
councillors (the Council). Council members are elected for a three-year term
pursuant to the Long Plain First Nation Election Act (the Act), which is
the Long Plain’s custom election code.
[3]
The last election was held on April 9, 2015. The
respondents Liz Merrick, Barb Esau, Marvin Daniels, and George Meeches were
elected as councillors. The appellant was an unsuccessful candidate for the
position of councillor.
[4]
Long Plain and other unsuccessful candidates in
the election, Dennis Peters, Robert Francis, George Assiniboine, Theresa
Sanderson, Marshall Prince, Annette Peters, Harold Myerion, and Chris
Yellowquill are also respondents in this appeal.
B.
The Act
[5]
Article 3.1 of the Act specifies eligibility criteria
for those who hold office with the tribal government. Those requirements are
summarized as follows:
a)
The candidate has not been and is not
disqualified by virtue of the Act;
b) The candidate has not been found guilty of an indictable offence in
the previous eight years from the date of the conviction within Canada or the
United States;
c)
The candidate has successfully passed a drug
test;
d) The candidate has a minimum grade 12 education level and/or “at least a minimum of five years’ experience garnered from
community involvement, including a letter of reference from another tribal
member”; and
e)
The candidate has paid a non-refundable fee of
$250.
[6]
Under Articles 9.5 and 9.6 of the Act, not less
than 14 days before a nomination meeting, each potential candidate must provide
to the electoral officer a confirmation that he or she has passed a drug test,
a criminal record check, and a child abuse registry check in accordance with
Article 3.1(c.):
9.5 The candidate
shall provide a completed criminal record check and a child abuse registry
check and shall have completed a drug test in accordance with the provisions of
Article 3.1(c.) of this Election Act.
9.6 The Electoral Officer or Deputy
Electoral Officer within two (2) days of the nomination meeting shall confirm
the nomination upon issuing a ‘Nomination Paper Receipt’ pursuant to Schedule
“A – Part Two” of this Election Act.
a. Criminal Record Checks that have not expired, Child Abuse
Registry Checks, and drug testing results must be submitted to the Electoral
Officer 14 days prior to nominations. NO EXCEPTIONS.
[7]
Article 12 of the Act provides for the
determination of nomination appeals whereas Article 17 defines the procedures
related to election appeals. These articles are reproduced in the appendix of
this decision.
C.
The 2015 Election
[8]
The facts pertaining to this case all occurred
in 2015. On February 15, a notice was issued by an electoral officer of Long
Plain inviting members to nominate candidates at a nomination meeting to be
held on March 19 for the forthcoming April 9 election. On March 5, 14 days
prior to the meeting, Mr. Yellowquill submitted his nomination application.
However, it was rejected by the electoral officer on March 13 for failure to
provide evidence of the necessary background checks and to pay the $250
application fee.
[9]
On March 13, a letter was sent on behalf of the
electoral officer confirming his ruling that Mr. Yellowquill could not
participate in the nomination meeting because he had not paid the required
application fee in time. The letter did not, however, address Mr. Yellowquill’s
omission to fulfill all the necessary background checks (Appeal Book, Tab
4.f.viii at pages 88-89). At the nomination meeting held on March 19, Mr.
Yellowquill provided the electoral officer with the following: i) the
application fee; ii) a confirmation that he had successfully passed a drug
test; iii) a release of results of his criminal record check which indicated
that his name potentially matched a registered criminal record and thus required
further fingerprint analysis; and iv) a letter supported by a receipt
indicating that he had applied for a child abuse registry check.
[10]
Mr. Yellowquill appealed the electoral officer’s
March 13 decision to the EAC on March 20, on the basis that the electoral
officer had erred in disqualifying his nomination for failing to pay the
application fee in time.
[11]
In between the ruling on that appeal and the
EAC’s decision on that matter, the electoral officer issued on March 22, the
receipt for the nomination papers providing Mr. Yellowquill a provisional
confirmation of eligibility until a cleared criminal record check and a child
abuse registry check were received and approved. As a result of this decision,
Mr. Yellowquill was able to run as a candidate for the office of Councillor but
could not take up a position on Council unless he satisfied the Act’s
eligibility requirements under Article 3.1.
[12]
On March 23, the appellant was made aware of the
EAC’s decision to allow Mr. Yellowquill, in his appeal against the electoral
officer’s March 13 decision, to run in the election despite the fact that he
had not provided the $250 application fee to the electoral officer in time. The
EAC’s March 23 decision only dealt with Mr. Yellowquill’s failure to pay the
$250 application fee on time, it did not, however, rule on the issue of his
incomplete criminal records check or the absence of the child abuse registry
check. The fulfillment of these two eligibility requirements remains, to this
day, an unresolved issue.
[13]
Mr. Yellowquill was not elected. He obtained 90
votes. The appellant ranked fifth in the election. Only one vote separated him
from the fourth-ranked elected councillor – Mr. George Meeches.
D.
The Second Decision of the EAC
[14]
Following his defeat in the election, the
appellant appealed the results of the April 9 election to the EAC, pursuant to
Article 17 of the Act, arguing that the results of the election were invalid
because Mr. Yellowquill, an ineligible candidate in the opinion of the
appellant, had been allowed to run as a candidate in the election, which
contravened the Act’s election practices.
[15]
On May 12, the EAC ruled that the prescribed
timelines were too narrow and created an unfair disadvantage for tribal members
wishing to run for Council because the Act required the issuance of a notice 32
days prior to the nomination meeting and because a nominee had to fulfill the
prescribed background checks 14 days before the nomination meeting. It
determined that the Act essentially created an obligation for nominees to
complete the required background checks and verifications, prior to the
nomination process.
[16]
Turning to Mr. Yellowquill’s situation, the EAC
came to the conclusion that, by accepting a receipt for the record checks as
proof that criminal record verifications were underway, the electoral officer’s
decision preserved a fair electoral participation process. Regardless of the
eligibility issue, the EAC found that the voting process and the outcome of the
election were not affected, given Mr. Yellowquill’s defeat. It also stated that
if a candidate had been elected without fulfilling the eligibility
requirements, this person would have been removed.
[17]
For those reasons, the EAC confirmed the
election results and affirmed the electoral officer’s decision regarding the
eligibility of Mr. Yellowquill, a matter which in its view had been already
settled by the March 23 decision. It also recommended that the Act be amended
to provide for child abuse registry checks within a timeframe to which nominees
could adhere.
II.
The Judgment under Appeal
[18]
In dismissing the appellant’s application for
judicial review, the Judge applied the standard of reasonableness and held that
the EAC’s Decision rendered on May 12 was reasonable.
[19]
The Judge rejected the respondents’ argument
that the application for judicial review dealt primarily with Mr. Yellowquill’s
eligibility, which was settled by the EAC’s decision on March 23 and was thus
filed beyond the 30-day filing deadline set out in subsection 18.1(2) of the Federal
Courts Act, R.S.C. 1985, c. F-7 (the Federal Courts Act). The Judge
found that candidates’ eligibility and approval of candidates by the electoral officer
necessarily affect the outcome of an election and fell within the concept of
electoral practices as contemplated by the Act. According to her, an appeal
pursuant to Article 17 of the Act did not exclude candidates’ eligibility as a
ground of appeal, especially as subsequent facts about a candidate’s
ineligibility could arise after the nomination stage of the election process. Given
that only Mr. Yellowquill had standing to bring a nomination appeal under Article
12 of the Act, the Judge concluded that this matter was appealable by the appellant
under Article 17 of the Act, as it fell under the umbrella of election
practices that could contravene the Act.
[20]
As for the reasonableness of the EAC’s May 12 Decision,
the Judge found that any ambiguity in the Act should be interpreted purposively
to foster enfranchisement and fair participation in the election process. The
Judge determined that the EAC rightly found that prescribed timelines in the
Act created unfair constraints for unseasoned candidates, as opposed to
previously elected Council members. The Judge concluded that the EAC did not
err when it found that the electoral officer had the discretion to deviate from
the strict requirements related to the nominating procedures in the Act for the
purpose of enabling Mr. Yellowquill’s candidacy.
III.
Issues
[21]
While the parties have raised several issues, it
is only necessary that I consider one, namely whether the appellant’s
application for judicial review was timely. For the reasons that follow, I am
of the view that the Judge erred in finding the application timely. The
application thus ought to have been dismissed for untimeliness and not for the
reasons given by the Judge. This conclusion is, on its own, sufficient to
dispose of the present appeal and there is therefore no need to address the
reasonableness of the EAC’s May 12 Decision.
IV.
Standard of Review
[22]
As the Judge’s decision regarding the timeliness
of the appellant’s application for judicial review is a question of mixed fact
and law, it is to be reviewed on a standard of palpable and overriding error (Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Budlakoti v. Canada
(Citizenship and Immigration), 2015 FCA 139, 473 N.R. 283 at paragraphs
37-39; Long Plain v. Canada, 2015 FCA 177, 388 D.L.R. (4th)
209 at paragraph 88; Apotex Inc. v. Canada, 2012 FCA 322, 443 N.R. 291
at paragraph 9).
V.
Position of the Parties
A.
The Appellant
[23]
In his application for judicial review of the
EAC’s May 12 Decision, the appellant’s arguments incidentally challenge the
March 22 and March 23 decisions permitting Mr. Yellowquill to run for a council
position in the April 9 election on the basis that these were election
practices that contravened the Act. It appears from the appellant’s factum that
he views both the electoral officer’s March 22 decision and the EAC’s March 23
decision as express rulings on Mr. Yellowquill’s eligibility.
[24]
On the issue of whether the application for
judicial review was filed within the 30-day time limit, the appellant’s counsel
acknowledged at the hearing that his client was aware, on March 23, that Mr.
Yellowquill had not completed all the required checks. He nonetheless
reiterated his position that the March 22 decision addressing the issue of
eligibility was not final in nature, since it only granted a provisional status
to Mr. Yellowquill without having all the required evidence to formally
establish and subsequently challenge his actual eligibility. Moreover, the
appellant underlined that he did not have standing to dispute the electoral
officer’s decision to accept Mr. Yellowquill’s candidacy under Article 12 of the
Act.
[25]
In considering the impact of the EAC’s March 23
decision on Mr. Yellowquill’s eligibility to run for office, the appellant further
claims that he had no reason to seek judicial review of the EAC’s March 23 decision
because he could not assess, at that time, whether it had any impact on the
outcome of the election. It is only when the outcome of the election was known
and considered by him to be unacceptable that he assessed the material effect
of the March 23 decision and appealed the results of the election before the
EAC. Therefore, he claims that he filed his application for judicial review of
the EAC’s May 12 Decision within the statutory period.
B.
The Respondents
[26]
In the respondents’ view, the matter the
appellant is asking this Court to review is not the EAC’s May 12 Decision
regarding the election results under Article 17 of the Act, but rather the
March 22 and March 23 decisions. They claim that the appellant is likely
contesting Mr. Yellowquill’s eligibility after the election for the sole
purpose of upsetting the results.
[27]
The respondents reiterated before this Court
that no one sought judicial review of the electoral officer’s March 22 decision,
nor of the EAC’s March 23 decision allowing Mr. Yellowquill to participate in
the election, even though these constituted, in their view, binding and final
rulings on that candidate’s eligibility within the meaning of Article 12.5 of
the Act. They argue, however, that both these decisions have been indirectly
impugned under the appellant’s appeal, as Mr. Yellowquill’s eligibility lies at
the core of the present challenge.
[28]
The respondents also claim that the appellant
was aware of these two decisions when they were rendered and that Mr. Yellowquill
had yet to satisfy the Act’s eligibility requirements by March 23.
[29]
They argue that the appellant had thirty days
from March 23 to file a notice of application for judicial review before the
Federal Court to contest Mr. Yellowquill’s eligibility. He was nonetheless
silent on this issue, until after the election results were known, and waited
until June 12 to file his notice of application and challenge Mr. Yellowquill’s
ability to participate in the April 9 election.
[30]
Consequently, the respondents reasserted their
argument presented to the Judge that the appellant brought his application for
judicial review beyond the 30-day time limit prescribed by subsection 18.1(2)
of the Federal Courts Act. They submitted that this appeal ought to be
dismissed on this basis.
VI.
Analysis
[31]
In my view, the Judge committed a palpable and overriding
error when she rejected the respondents’ argument that the appellant’s
application for judicial review was filed outside the 30-day time limit, as
prescribed in subsection 18.1(2) of the Federal Courts Act.
A.
The Time Limitation to File an Application for
Judicial Review
[32]
Subsection 18.1(2) of the Federal Courts Act
states that a party who wishes to challenge a final decision or order of a
federal administrative tribunal which affects its interests must file a notice
of application for judicial review within thirty days of having knowledge of
that decision (Roberts v. Union of Canadian Correctional Officers, 2014
FCA 42, 461 N.R. 264 at paragraph 5; Hudgins v. Canada (Attorney General),
2012 FCA 185, [2012] F.C.J. No. 877 (QL) at paragraph 5; Powell v. United
Parcel Service, 2010 FCA 286, [2010] F.C.J. No. 1336 (QL) at paragraph 2 [Powell];
Canada (Attorney General) v. Trust Business Systems, 2007 FCA 89, 361
N.R. 53 at paragraph 25; Pharmascience Inc. v. Canada (Commissioner of
Patents), 2000 CanLII 15188 (FCA), 181 F.T.R. 79 at paragraph 4; Bullock
v. Canada, 1997 CanLII 5830 (FCA) at paragraph 8 [Bullock]).
[33]
If a party fails to meet the mandatory filing time
limit prescribed in the Federal Courts Act, it runs the risk of being
barred from having the disputed decision judicially reviewed by the Federal
Court. Allowing an application for judicial review to be filed outside the
statutory period therefore constitutes a breach of the Federal Courts Act,
unless a judge exercises his or her discretion to extend this limitation in
appropriate circumstances and upon a motion to that effect. (Nanavaty v.
Canada (Public Safety and Emergency Preparedness), 2008 FCA 323 at
paragraph 10; Neis v. Baksa, 2002 FCA 230, [2002] F.C.J. No. 832 (QL) at
paragraph 2).
B.
The Timeliness of the Application for Judicial
Review
[34]
In this appeal, this Court must determine which
decision constitutes the final decision under challenge within the meaning of
subsection 18.1(2) of the Federal Courts Act. Given that the entire
delay must be satisfactorily accounted for (Bullock at paragraph 8), I
must therefore turn my attention to identifying the pertinent decision, and
determining whether the underlying application for judicial review was filed
within thirty days of that decision (Canada (Attorney General) v. Larkman,
2012 FCA 204, 433 N.R. 184 at paragraph 63 [Larkman]).
[35]
This case involves, in its essence, complaints
about Mr. Yellowquill being allowed to run as a candidate by the electoral
officer, despite not having fulfilled all the requirements prescribed under the
Act. The appellant is essentially challenging the eligibility of Mr.
Yellowquill to be a candidate in the April 9 election.
[36]
In their facta, the parties appear to conflate the
subject matter of the March 22 and March 23 decisions when they mischaracterize
the nature of the EAC’s March 23 decision as being a ruling on Mr.
Yellowquill’s eligibility. As mentioned earlier, the EAC’s March 23 decision
only addressed Mr. Yellowquill’s failure to pay the $250 application fee in
time and did not expressly make a ruling on his eligibility, namely the
successful fulfillment of the Act’s background check requirements. Conversely,
the electoral officer’s March 22 decision constitutes the final and binding
decision addressing Mr. Yellowquill’s eligibility, which remains the sole
contentious issue challenged by the appellant in this appeal.
[37]
In my view, based on a fair reading of the
appellant’s Notice of Application for Judicial Review and Notice of Appeal, the
decision taken by the electoral officer in respect of Mr. Yellowquill’s
candidacy on March 22 is at the core of the appellant’s application for
judicial review challenging Mr. Yellowquill’s eligibility.
[38]
The EAC’s March 23 decision was not expressly
challenged by the appellant in his Notice of Application for Judicial Review
and Notice of Appeal. The essence of the appellant’s application for judicial
review filed on June 12 was therefore to overturn the decision taken on that matter
by the electoral officer on March 22 on the basis that it waived the Act’s
requirements to provide a completed criminal record check and child abuse
registry check, upon granting Mr. Yellowquill a provisional candidate status.
[39]
At the hearing, counsel for the appellant
acknowledged that his client was aware as of March 23 that Mr. Yellowquill had
not completed the required checks when his name appeared on the list of
eligible candidates and he was allowed to run in the election.
[40]
This Court has previously ruled that the time
period prescribed in subsection 18.1(2) of the Federal Courts Act begins
to run the moment an applicant has knowledge of a final decision that he or she
subsequently wishes to challenge (Robertson v. Canada (Attorney General),
2016 FCA 30, 480 N.R. 353 at paragraph 7; Larkman at paragraphs 63 to
68; Zündel v. Canada (Human Rights Commission), [2000] 4 F.C.R. 255,
2000 CanLII 17138 (FCA) at paragraph 17).
[41]
In the circumstances of this case, I conclude
that the appellant had knowledge of the electoral officer’s March 22 decision as
of March 23. Therefore, under subsection 18.1(2) of the Federal Courts Act,
the appellant had thirty days from March 23 to file his notice of application (Larkman
at paragraph 68). The appellant failed to do so as his notice was filed on June
12, well beyond the prescribed time limit. As the appellant did not obtain
leave to commence his application beyond the 30-day timeframe, he was
time-barred from challenging Mr. Yellowquill’s eligibility (Hallen v. Canada
(Attorney General), 2014 FCA 229 at paragraph 3; Canada (Attorney
General) v. Trust Business Systems, 2007 FCA 89, 361 N.R. 53 at paragraph
29).
[42]
Given the foregoing conclusions with respect to
the essence and timing of the appellant’s application for judicial review, a
further ruling by this Court on a party’s ability to challenge a candidate’s
eligibility under Article 17 on the basis of election practices that contravene
the Act is not warranted in light of the particular circumstances of this case.
[43]
As a result, I conclude that the appellant’s
application for judicial review was not filed in accordance with subsection
18.1(2) of the Federal Courts Act. I would therefore dismiss the appeal,
the whole with costs.
"A.F. Scott"
“I agree.
Wyman W. Webb J.A.”
“I agree.
Mary J.L. Gleason
J.A.”
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