Docket: A-42-17
Citation:
2017 FCA 146
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CORAM:
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DAWSON J.A.
WEBB J.A.
RENNIE J.A.
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BETWEEN:
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COUNCILLORS GEORGINA
JOHNNY, BRANDY JULES AND RONALD JULES
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Appellants
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and
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ADAMS LAKE
INDIAN BAND
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The appellants were properly elected Band
Councillors of the Adams Lake Indian Band. Each was removed from office
effective October 23, 2016, and each was prohibited from running for election
in the next two Band elections because each was found to have breached their
oath of office.
[2]
The appellants’ challenge to the decisions
removing them from office was rejected by the Federal Court. The Federal Court
found the decisions were reached in a procedurally fair manner (2017 FC 156).
This is an appeal from the judgment of the Federal Court.
[3]
Before dealing with the merits of the appeal, it
is important to record the position of the respondent Adams Lake Indian Band on
this appeal.
[4]
The Band opposed the appellants’ application for
judicial review in the Federal Court and initially entered an appearance in
this Court indicating its intent to oppose the appeal. The Band filed a
memorandum of fact and law in which it asked that the appeal be dismissed with
costs. However, shortly before the appeal was argued, a notice of change of
solicitors was filed. At the hearing of the appeal, new counsel advised that
the Band does not take any position on this appeal, and that in disposing of
the appeal the Court should have no regard to the Band’s memorandum of fact and
law. The Court has proceeded on this basis.
[5]
I now turn to briefly review the relevant facts.
[6]
Part 24.1 of the 2014 Adams Lake Secwépemc
Election Rules provides that a Band Councillor “may be
removed from office” on grounds that the Councillor violated the Band’s
Election Rules or breached their oath of office. In their oath of office, Band
Councillors agree, among other things, to “honestly,
impartially and fully perform the duties of my office with dignity and respect”
and to uphold the “Adams Lake Indian Band Community
Vision.”
[7]
Of relevance to this appeal are paragraphs 2, 3
and 4 of the oath of office each member of the Band Council is obliged to
declare. These paragraphs state:
2. I will honestly, impartially and
fully perform the duties of my office with dignity and respect.
3. I will always consider the best
interests of the Adams Lake Indian Band.
4. I will uphold the ALIB Election
Rules, Band policies, and the Chief and Council Terms and Reference of the
Adams Lake Indian Band.
[8]
Proceedings to remove a Band Councillor are to
be commenced by a petition signed by ten electors, accompanied by an affidavit
substantiating the grounds for removal (Parts 24.2 and 24.3 of the Election
Rules). A decision to remove a Councillor is to be made by an elected Community
Panel (Election Rules Part 9.2 and Appendix E).
[9]
In September 2016, a petition was presented
seeking the removal of the appellants from their positions as Band Councillors.
The petition was supported by an affidavit sworn by Valerie Michel, an employee
of the Band. In her affidavit, the complainant made the following allegations:
Ronnie Jules
Violation: I heard Ronnie was advocating for
his immediate family member to get a house.
This violates # 2 Oath of Office; how can
you be impartial when you’re advocating for an immediate family.
This violates # 3 Oath of Office; by
advocating for an immediate family member how can you be thinking in the best
interest of the Band.
This violates # 4 Oath of Office; this
definitely was not following the Housing Policy showing lack of respect for
Band policies.
Violation:
Ron Jules participated in discussion that
had a direct effect on his immediate family. Many times he did not declare
conflict of interest.
SAME AS ABOVE VIOLATES #2 and #3
Gina Johnny
Violation: Gina advocated for a member of
her immediate family to receive money from the band council and approved using
council travel budget to attend a workshop.
This violates # 2 Oath of Office; how can
you be impartial when you’re advocating for an immediate family member.
This violates # 3 Oath of Office; definitely
only thinking in the best interest of her family.
This violates # 4 Oath of Office; not
following proper procedures and policies for band member receiving money. How
can council give money out of their own travel for her brother to attend a
workshop, was this offered to anyone else?
Brandy Jules
Violation of Oath of Office # 2
Brandy is directing the decision for the
release of the Executive Director Lawrence Lewis for personal reasons to do
with her family. Brandy holds the Administration portfolio and was part of the
decision to hire Lawrence. Council was excited to have Lawrence on board, spoke
of his credentials and how he would be an asset to the band, Council even held
a welcoming for him. What changed? Well when Lawrence started to hold
department’s heads accountable to their departments, following band policies
and procedure and holding staff accountable to lateral violence? Is this the
reason for his release?
Brandy and Ronnie were doing their own
investigation [sic] his background to find things to let him go. Should
this not have been part of the hiring process?
[10]
The complainant went on to state that:
… This is the first term in many years it is
difficult for me to see what direction the band is going. With all the conflict
of Interest and council involving themselves in administration decisions that
they should not be involved in, this is demonstrating the council are more
worried about administration and ensuring they protect their family than moving
the band forward politically. I look forward to meeting with the Community
Panel and trust the Community Panel to investigate thoroughly and unveil the
truth and make the right decision with the evidence found.
In my opinion this maybe [sic] the
tip of the iceberg, I have faith that the community panel will investigate our
concerns and should more forthcoming information arise through your
investigation you will deal with accordingly.
[11]
The Community Panel found that all but one of
the alleged violations were established. It rejected the allegation that Ronald
Jules had advocated that one of his immediate family members should receive a
house.
[12]
The Community Panel also considered a number of
allegations not contained in the petition or supporting affidavit. It found
that Ronnie Jules made a “direct racial comment to a
staff member” and that he participated “in
lateral violence towards another member of Council”. It found that Gina
Johnny participated in discussions, advocated and signed “the Band Council Resolution which transitioned all existing
Security Staff” to Adams Lake Indian Band Staff, which benefited her immediate
family and that she had advocated for an immediate family member to represent
the Band at “Together Shuswap”. Finally, it
found that Brandy Jules made inquiries of the Band Staff with respect to a job
posting involving her immediate family, and that she participated in discussions,
advocated and signed “the Band Council Resolution which
transitioned all existing Security Staff” to Band Staff, which benefited
her family.
[13]
In the result, the Community Panel found that
each appellant had breached paragraphs 2, 3 and 4 of the oath of office, and
that each appellant had breached the Band’s Code of Conduct and Ethics Policy
and the Band’s Financial Management Bylaw. Additionally, it found that Ronnie
Jules had breached the Conflict Resolution Policy, the Employment Guidelines,
and the Respectful Work Place Policy. Brandy Jules was also found to have
breached the Respectful Work Place Policy and the Employment Guidelines.
[14]
As a result of these findings, each appellant
was removed from elected office as a Band Councillor effective October 23, 2016,
and each appellant was precluded from running for office in the next two Band
elections. The appellants may first run for office in the election to be held
in 2024.
[15]
The reasons of the Community Panel are found in
the minutes of its meeting of October 22, 2016, and in three letters of that
date, one of which was sent to each appellant. The minutes reflect, among other
things, three motions made, seconded and carried, finding the appellants to
have breached their oaths of office. The letters set out the nature of each
violation of the oath considered by the Community Panel and the Panel’s
conclusion about each alleged violation. Each letter was signed by all of the members
of the Community Panel.
[16]
Following the decisions of the Community Panel,
the Federal Court issued an order, with the consent of the parties, which,
subject to certain limitations, restored the appellants to their positions on
the Band Council pending the outcome of their challenge to the removal orders.
A by-election scheduled for the election of new Councillors was cancelled.
Thereafter, following the issuance of the Federal Court’s judgment, this Court
stayed the judgment of the Federal Court pending the disposition of this
appeal.
[17]
On this appeal from the judgment of the Federal
Court, the appellants assert that the Federal Court erred by applying the
reasonableness standard of review to the decision of the Community Panel. They
also assert that the Federal Court erred in failing to find that the Community
Panel’s decision was reached in a manner that was procedurally unfair in a
number of respects.
[18]
I begin my consideration of the appellants’
submissions by rejecting the notion that the Federal Court selected and applied
the incorrect standard of review. The Federal Court found that the sole issue
before it was whether the Community Panel breached the duty of procedural fairness
it owed to the appellants (reasons, paragraph 18). This finding is not
challenged by the appellants and, in any event, it is a correct
characterization of the issue before the Federal Court.
[19]
As to the applicable standard of review, at
paragraph 21 of its reasons the Court referred to both Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph
43 and Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502,
at paragraph 79, and found it to be well-established that the standard of
correctness applies to questions of procedural fairness. No error was made by
the Federal Court in selecting the correctness standard of review.
[20]
As to the application of this standard, in my
view the Federal Court reversibly erred in concluding that the decision of the
Community Panel was made in compliance with the requirements of procedural
fairness. It is not necessary for me to consider all of the errors asserted by
the appellants. For the purpose of this appeal, it is only necessary for me to
consider the Federal Court’s:
i.
determination of the content of the duty of
fairness;
ii.
application of the principle “he who decides must hear”;
iii.
application of the test for bias or reasonable
apprehension of bias.
[21]
As I have concluded that the Federal Court made
a reversible error, and as I would set aside the judgment of the Federal Court,
I will also comment on the adequacy of the Community Panel’s reasons in the
event it comes to reconsider the allegations made against the appellants.
[22]
The Federal Court began its analysis by
correctly observing that the concept of procedural fairness is eminently
variable, and its content is to be decided in the specific context and
circumstances of each case (reasons, paragraph 27). The Federal Court then
relied upon the decision of this Court in Bruno v. Samson Cree Nation,
2006 FCA 249, 352 N.R. 119, to conclude that the Community Panel should be
granted significant latitude to choose its own procedures. In the view of the
Federal Court, it was sufficient if basic procedural safeguards were in place.
Thus, a full oral hearing was not required (reasons, paragraphs 28 and 29).
[23]
However, Bruno arose in an entirely
different context from that now before the Court – an assertion that a
successful candidate in a Band election was not qualified to run for the
office. The present context involves the removal from office of a properly
elected Councillor.
[24]
The content of the duty of fairness to be
applied when removing a duly elected councillor from office was considered by
the Federal Court in Testawich v. Duncan’s First Nation, 2014 FC 1052, 467
F.T.R. 38. The Federal Court concluded that application of the factors
articulated in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, 243 N.R. 22 favoured a duty of fairness “on the more robust end of the spectrum.” The Federal
Court reasoned that:
[34] In my view, the Baker
factors weigh in favour of a duty on the more robust end of the spectrum.
First, the Committee reached its decision through a process resembling that of
a court, since it has the task of resolving complaints by reference to
Regulations establishing rights and duties. The Supreme Court has stated that
such decisions warrant a high degree of procedural fairness: Baker,
above, at para 23. The fact that there is no internal appeal in the statutory
scheme also militates in this direction: Baker at para 24.
[35] The decision itself did not affect
the applicant’s liberty or security interests and is, therefore, of moderate
importance. However, it has affected his reputation in the community and has
also deprived the members of the First Nation of their elected representative.
The applicant submits that his expectations were that the hearing would be
procedurally fair and that the Committee would maintain a record of the
proceedings and provide written reasons of its decision.
[25]
I agree. To the analysis of the Federal Court I
would only add with respect to the importance of the decision to the appellants
that the position of Band Councillor is generally a remunerated position. The First
Nations Financial Transparency Act, S.C. 2013, c. 7 requires that First
Nations disclose and publish on the internet the remuneration and expenses paid
to members of Band Councils. This disclosure is also to be published on the
website of Indigenous and Northern Affairs Canada. Members of the Adams Lake
Indian Band Council receive remuneration of approximately $4,000 per month.
This heightens the importance of the decision to the appellants. Their tenure
as a paid office holder is at stake.
[26]
This was a case that involved conflicting
evidence and issues of credibility. To briefly illustrate, on October 7, 2016
the then Chief informed the Community Panel that:
•
He was not aware of Ronnie Jules being in a
conflict of interest with his immediate family members.
•
Ronnie Jules excused himself from the discussion
concerning Roddy Jules’ roof.
•
The Chief did not believe Ronnie Jules acted in
a position of conflict with respect to David Jules.
•
Gina Johnny excused herself from Council when
Council discussed having a family member receive funding to attend a conference
or a workshop.
[27]
A current member of the Band Council advised the
Community Panel on October 7, 2016 that “for sure”
Ronnie Jules declared a conflict of interest with respect to the security staff
issue.
[28]
On the facts of this case, it is not necessary
to precisely enumerate the participatory rights enjoyed by the Band Councillors.
However, where, as in this case, there is contradictory evidence and issues of
credibility, Councillors facing removal are entitled to a full oral hearing before
the Community Panel with a right to cross-examine witnesses.
[29]
In this case, the relevance of the content of
the duty of fairness arises with respect to the Federal Court’s application of
the principle “he who decides must hear” and its
approach to the test for bias.
[30]
The maxim “he who
decides must hear” expresses the general principle that where an
administrative tribunal is responsible for hearing and deciding a case, only
those members of the Tribunal who hear the case may take part in the decision.
[31]
Justice Binnie, in dissent but not on this
point, has stated that “[n]othing is more fundamental
to administrative law than the principle that he who hears must decide”
(Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1
S.C.R. 221, paragraph 66). Where the rule applies it requires that all members
of the Tribunal who take part in a decision must hear both the evidence and the
representations of the parties. The rule does not apply where legislation
expressly or by necessary implication ousts its application (International
Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd.,
[1990] 1 S.C.R. 282, at pages 329-330).
[32]
In the present case, nothing allows members of
the Community Panel to absent themselves from seeing and hearing the witnesses.
The fact that a quorum of the Community Panel is three of five members simply
means that if all five members of the Community Panel are not eligible or
available to participate in an inquiry, a majority of the members may
nonetheless embark upon the inquiry. The quorum provision does not authorize
members to come and go and participate in a decision when they have not heard
all of the evidence or the submissions of the parties.
[33]
It is particularly important when witnesses give
conflicting accounts that all of the members of the Community Panel conducting the
inquiry see and hear all of the witnesses. It is not sufficient for other
members of the Community Panel to pass on their recollection of the evidence
and their impression of the witness. Nor is it sufficient for an absent member
to read a brief written summary in the minutes of what the witness said.
[34]
The principle that “he
who decides must hear” was breached in the present case in two types of circumstances.
[35]
First, two members of the Community Panel were
absent for a number of hearings. Member Lund was not present on October 3, 2016,
to hear the questioning of the complainant. She also missed the testimony of
three witnesses given on October 11, 2016. Member Nordquist missed an in
camera session on October 5, 2016, which session was not minuted and missed
the testimony of one witness heard on October 21, 2016.
[36]
Second, two members of the Community Panel
recused themselves from hearing certain evidence. Member Kenoras absented
herself on the two occasions her mother, Norma Manuel, was interviewed by the
Community Panel. She also absented herself for a portion of the interview of
two witnesses on October 15, 2016, when the witnesses were questioned about
events involving her mother. She was also asked to leave a portion of the
October 14, 2016, meeting while the Community Panel reviewed the interview of
her mother.
[37]
Member Yarama, the Manager of Maintenance and
Housing for the Band, was directly responsible for the Band’s security staff
and independent contractors. She therefore declared a conflict of interest with
respect to allegations made against the appellants regarding their conduct with
respect to the Band’s security contracts. On my review of the record, Member
Yarama only removed herself from a portion of the October 13, 2016, meeting.
[38]
The Federal Court did not refer to the absence
from the hearing of Members Lund and Nordquist and viewed the absences of Members
Kenoras and Yarama to be appropriate in view of their conflicts (reasons, paragraphs
46, 48).
[39]
I respectfully disagree. The Community Panel
interviewed a total of 12 witnesses, yet only one member heard the totality of
the information adduced. The Community Panel received contradictory information
on central issues. In this circumstance, procedural fairness required all of
the members of the Community Panel who participated in the decision to remove
each councillor to hear all of the information adduced from all of the
witnesses. The members’ failure to do so rendered their decision procedurally
unfair.
[40]
While this finding is dispositive of the appeal,
I wish to deal with the Federal Court’s treatment of the issue of bias and more
particularly with its conclusion at paragraph 50 that:
In sum, having regard to all the
circumstances of this case, including the context in which the Panel operates,
and being mindful of this Court’s more lenient approach to bias’s [sic] issues
raised in the context of decisions made by decisions-makers holding their
authority from customary band election codes and of its general
reluctance to interfere with such decisions in order to preserve, as much as
feasibly possible, First Nations’ autonomy in this respect, I find that the
Applicants have failed to establish that the process that led to the impugned
decision raises a reasonable apprehension of bias.
[41]
The Election Rules do not preclude Band
employees from holding office as a member of the Community Panel. Only members
of the Band Council or candidates in an election are precluded from election as
a member of the Community Panel. Thus, I do not disagree with the Federal Court’s
conclusion that the mere fact that a member of the Community Panel is employed
by the Band does not give rise to a reasonable apprehension of bias. What is
required is an actual conflict of interest in a given case (reasons, paragraph
41). This is consistent with the reasoning in Sparvier v. Cowessess Indian
Band #73, [1993] 3 F.C.R. 142, [1994] 1 C.N.L.R. 182 (F.C.T.D.) where
Justice Rothstein wrote, at pages 167-168 :
… it does not appear to me to be realistic
to expect members of the Appeal Tribunal, if they are residents of the
reservation, to be completely without social, family or business contacts with
a candidate in an election. …
If a rigorous test for reasonable
apprehension of bias were applied, the membership of decision-making bodies such
as the Appeal Tribunal, in bands of small populations, would constantly be
challenged on grounds of bias stemming from a connection that a member of the
decision-making body had with one or another of the potential candidates. Such
a rigorous application of principles relating to the apprehension of bias could
potentially lead to situations where the election process would be frustrated
under the weight of these assertions. Such procedural frustration could, as
stated by counsel for the respondents, be a danger to the process of autonomous
elections of band governments.
[42]
It follows that if a member of the Community
Panel is in a position of conflict of interest with respect to a particular
issue, the member must not participate in any way in the process that leads to
a decision on that issue. In some circumstances, where allegations are made
with respect to a number of issues and where the nature of the conflict would
cause a reasonable and informed person to perceive that the member would,
consciously or unconsciously, be unable to decide other issues fairly, the
member must not participate at all in deciding any issue.
[43]
This said, the Community Panel must be free from
a reasonable apprehension of bias. A tribunal such as the Community Panel which
is primarily adjudicative in its functions, must meet the test for bias articulated
in Committee for Justice and Liberty et al. v. National Energy Board et al.,
[1978] 1 S.C.R. 369, at page 394:
…[T]he apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information....
[That] test is “what would an informed person, viewing the matter realistically
and practically — and having thought the matter through — conclude. Would he
think that it is more likely than not that Mr. Crowe, whether consciously or
unconsciously, would not decide fairly.”
[44]
In the present case, the decisions to remove the
appellants were made at the October 22, 2016, meeting of the Community Panel.
[45]
The minutes of this meeting reveal that with
respect to Ronnie Jules, Member Yarama did not leave the meeting at all. Member
Kenoras withdrew from the meeting for ten minutes while the Community Panel
discussed the evidence of her mother, Norma Manuel. Member Kenoras then
returned to the meeting and seconded the motion to remove Mr. Jules from
office. The motion which was carried found that Mr. Jules had violated his oath
of office by, among other things, participating in discussions and signing the
Band Council Resolution which transferred all security staff to the Band Staff
and that he participated in “lateral violence”
toward Member Kenoras’ mother.
[46]
A reasonable apprehension of bias arises from Member
Yarama’s participation in a decision about Ronnie Jules’ conduct with respect
to the Band’s security contract when she had previously declared this to be an
issue in which she was in a position of conflict.
[47]
Similarly, a reasonable apprehension of bias
arises from Member Kenoras’ participation in a decision that found misconduct
based on Ronnie Jules’ treatment of her mother. Absenting herself from her
mother’s interview and from interviews which discussed her mother was wholly
insufficient to cure the perception of bias.
[48]
With respect to Georgina Johnny, Member Yarama
did not leave the October 22, 2016, meeting, yet she voted on a motion that
removed Ms. Johnny from office for, among other things, participating in
discussions and signing the Council Resolution which transferred all security
staff to the Band Staff. Again, a reasonable apprehension of bias arises from Member
Yarama’s participation.
[49]
With respect to Brandy Jules, again a reasonable
apprehension of bias arises from Member Kenoras’ participation in a decision
that found misconduct based in part on Brandy Jules’ treatment of Member
Kenoras’ mother.
[50]
The presence of a reasonable apprehension of
bias on the part of two members of the Community Panel provides an independent
ground for setting aside the decisions removing the appellants from office as
members of the Band Council.
[51]
As this matter may be returned to the Community
Panel, it is important that I also address the issue of the adequacy of its
reasons, an issue not addressed by the Federal Court.
[52]
As explained above, the reasons of the Community
Panel consist of the minutes of the October 22, 2016 meeting together with the
three letters which set out the nature of the violation of the oath of office
considered by the Community Panel for each appellant. Missing from these
reasons is any reference to the conflict in the information provided to the
Community Panel. Instead, a generic description is given in respect of each
violation that describes the nature of the material the Community Panel
considered in its investigation. An example is the following statement which
described the Panel’s investigation into the allegation that Ronnie Jules
participated in discussions that had a direct effect on his immediate family
without declaring a conflict of interest: “The
Community Panel has completed their investigation which consisted of evidence
provided by the petitioner, witness interviews, and Chief and Council meeting
minutes”.
[53]
The purpose of reasons is to allow a reviewing
court to understand why an administrative decision-maker made its decision and
to assess whether the decision falls within the range of acceptable outcomes (Newfoundland
and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, paragraph 16). In the present case, nothing
in the record allows this Court to determine why the Community Panel preferred
the inculpatory information and ignored the exculpatory information received
with respect to the allegations levied against the appellants. In this
circumstance, this Court cannot conduct reasonableness review.
[54]
It follows that I would allow the appeal and set
aside the judgment of the Federal Court, with costs here and in the Federal
Court. Pronouncing the judgment that should have been pronounced by the Federal
Court, I would set aside the decision of the Community Panel in its entirety,
including the prohibition placed on the appellants’ running for office in the
elections to be held in 2018 and 2021.
[55]
If the petition to remove the appellants is to
be pursued, the petition should be returned to the Community Panel for
redetermination in accordance with the Court’s reasons. For clarity, if allegations
related to the appellants’ dealings with Norma Manuel are to be pursued, Member
Kenoras is to take no part in the decision-making process. Similarly, if
allegations related to the transition of the existing security staff to the
staff of the Adams Lake Indian Band are to be pursued, Member Yarama is to take
no part in the decision-making process.
[56]
In accordance with the request made by counsel
for the Band, if the parties are unable to agree on the quantification of costs
in this Court within 14 days of these reasons, they may serve and file written
submissions on the issue of costs, each submission not to exceed three pages in
length. The appellants shall serve and file their submission within 21 days of
these reasons. The respondent shall serve and file its submission within 28
days of these reasons.
“Eleanor R. Dawson”
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“I agree.
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Wyman W. Webb
J.A.”
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“I agree.
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Donald J. Rennie
J.A.”
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