Docket: A-467-16
Citation:
2017 FCA 147
|
CORAM:
|
DAWSON J.A.
WEBB J.A.
RENNIE J.A.
|
|
BETWEEN:
|
|
COUNCILLOR
DORIS JOHNNY
|
|
Appellant
|
|
and
|
|
ADAMS LAKE
INDIAN BAND
|
|
Respondent
|
REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The appellant, Doris Johnny, was elected as a
Band Councillor of the Adams Lake Indian Band in February 2015, for a
three-year term of office. She was removed from that office effective December
9, 2015, and prohibited from running in the Band election for the Chief and
Councillors to be held in 2018 because she was found to have breached her oath
of office. The appellant’s challenge of the decision removing her from office
was rejected by the Federal Court. The Federal Court found the decision was reached
in a procedurally fair manner and was reasonable (2016 FC 1399). This is an
appeal from the judgment of the Federal Court.
[2]
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.
[3]
The Band opposed the appellant’s 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.
[4]
I now turn to briefly review the relevant facts.
[5]
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.”
[6]
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).
[7]
In November 2015, a petition was presented
seeking the removal of the appellant as a member of the Band Council. The
petition was supported by an affidavit which detailed numerous complaints about
the appellant. The Community Panel found only one ground of complaint had
merit.
[8]
That ground of complaint was:
Sept. 9, 2015 – I attended a taxation
meeting at Pierre’s Point Hall, I arrived late excusing myself for this due to
being quite ill. I was asked by the Kenoras family to attend these meetings to
hear the tax implications on CP property. Once given the floor and during my
questions, Doris Johnny interrupted me three times with rude comments saying,
“We don’t want to hear of your illness.” “We don’t need to hear of your
problems.” and another comment. On the last comment I said, “What is wrong with
you? Stop this.”
After the meeting I said, “Hey Doris, please
don’t be getting lippy to me in public.” Words were said and Carolyn Johnny
stepped in. I told Carolyn, “You have not heard what rude things your daughter
said to me and you are only sticking up because she is your daughter, maybe my
mom should be here.” Carolyn Johnny pushed me and said, “Get out of here.” I
did not engage with her. I was urged by my elders to go to the police so I went
the next day and there is a file on this. RCMP File # 2015-4798. Constable
McLean. I should have pressed charges but instead the officer talked to Carolyn
Johnny who turned the story around and said I pushed her and I was drunk at the
taxation meeting. This is not true. I have witnesses who saw Carolyn push me.
Doris Johnny instigated this situation. This is not proper professional conduct
of a Council member. This situation was very abusive by both Doris Johnny and
Carolyn Johnny. Breach of Oath of Office 2,3,4,5,6,8,10.
[9]
The brief reasons of the Community Panel finding
the ground of complaint to be made out are in their entirety:
• The Community
Panel has completed their investigation and find Doris Johnny has breached
Oath of
Office # 2 – I will honestly, impartially and fully perform the duties of my
office with dignity and respect and,
Oath
of Office # 5 – I will uphold the Adams Lake Indian Band Community Vision.
• Investigations
consisted of witness statements and correspondence related to the incident.
• As a result of
the investigation the Community Panel has determined Doris Johnny did not fully
perform the duties of office with dignity and respect and did not uphold the
Adams Lake Indian Band Vision Statement by “ensuring that we live in a safe,
healthy, self-sufficient community where cultural values and identity are
consistently valued promoted and embraced by all.”
• Our leaders are
required to conduct themselves at a higher level of standard at all times.
(Emphasis
in original omitted)
[10]
The Community Panel concluded by finding “Doris Johnny breached Oath of Office #2 & #5. Therefore
in accordance with the 2014 Secwepemc Election Rules, the Community Panel is
removing the Band Council Member from office and declaring the office vacant.”
The Community Panel went on to impose a penalty preventing the appellant from
running for office until the 2021 Band Council Election.
[11]
On this appeal from the judgment of the Federal
Court, the appellant asserts that the Federal Court erred in law in its
determination of the content of the duty of fairness and erred in its
application of the reasonableness standard of review.
[12]
As explained below, I agree that the Federal
Court erred in its application of the reasonableness standard. As this
conclusion is dispositive of the appeal I need not consider, and do not
consider, the Federal Court’s analysis on the issue of procedural fairness.
This said, these reasons should not be read to endorse the reasons of the
Federal Court on the issue of procedural fairness.
[13]
With respect to the Federal Court’s selection
and application of the reasonableness standard, on appeal this Court is
required to determine whether the Federal Court selected the proper standard of
review and applied it correctly (Agraira v. Canada (Public Safety and Emergency
Preparedness) 2013 SCC 36, [2013] 2 S.C.R. 559).
[14]
I agree that the Federal Court properly selected
reasonableness as the applicable standard of review. Except in limited
circumstances not present in this case, it is presumed that when an administrative
decision-maker applies its home statute the proper standard of review is
reasonableness (Alberta (Information and Privacy Commissioner) v. Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654). This presumption of
reasonableness review has not been rebutted in the present case.
[15]
As to the application of that standard, it must
be kept in mind that elected Band Councillors are leaders in their community’s
democratic process. They are chosen by Band members and entrusted to look after
the interests of the Band and its members. Band Councillors are expected to
deal with all matters that affect the interests or welfare of the Band and its
members – matters that may be politically charged and polarizing.
[16]
To do this, Band Councillors must be able to speak
and act frankly and boldly without fear of sanction, so long as they speak and
act honestly, in good faith and within the margin of appreciation afforded
democratically elected leaders acting within the political milieu.
[17]
The Election Rules, in my view, recognize this need
because they provide, among other things, that a Councillor may – not must – be
removed for breach of their oath of office.
[18]
To illustrate, the oath of office requires
Councillors to perform their duties “with dignity and
respect.” A regrettable, momentary breach of civility may well, with the
benefit of hindsight outside of the heat of debate, lack dignity and respect,
but at the same time fall far short of conduct that causes electors to lose
faith or confidence in the judgment of their Councillor or to lose such respect
for the Councillor so as to justify the Councillor’s removal from office.
[19]
At the other end of the spectrum, some conduct
may be so repellent, undignified and disrespectful as to clearly evidence a
Councillor’s unfitness for elected office.
[20]
In every case it is for the elected Community
Panel to determine whether impugned conduct rises to the level that warrants
removing a democratically elected Councillor from their office. This is a
decision the Community Panel must make on the basis of its knowledge of the
customs and norms of the Band, taking into account realistic expectations and a
goodly measure of common sense in order to determine whether a Councillor has
engaged in conduct that has caused electors to lose faith or confidence in the
judgment of the Councillor or to so lose respect for the Councillor that the
Councillor ought to be removed from office. Realistic expectations and common
sense are required because a standard of conduct based upon unfailing
perfection is one not likely to be met consistently, and one likely to lead to
frequent petitions to remove Councillors.
[21]
In the ten and a half month period from December
9, 2015 to October 22, 2016, the Community Panel removed four Band Councillors
of the Adams Lake Indian Band, including the appellant’s elected successor (see
2017 FCA 146). The Adams Lake Band Council is comprised of a Chief and five
Councillors. When considering a petition to remove a Band Councillor, the
Community Panel should also measure the gravity of the impugned conduct against
the disruption and other consequences that arise when a duly elected member of
the Band Council is removed.
[22]
In the present case, missing from the reasons of
the Community Panel is any consideration of whether the alleged misconduct rose
to the level that warranted removing the appellant from office. Indeed, the
reasoning of the Community Panel is consistent with the view that any and all
breaches of the oath of office justify removal from office. However, this is an
unreasonable interpretation of the Election Rules. If this was the intent of
the Election Rules, Part 24.1 would require that Councillors “shall”, not “may”, be
removed from office for a breach of their oath of office.
[23]
The Community Panel’s failure to explain why
comments such as “[W]e don’t want to hear of your
illness” and “[W]e don’t need to hear of your
problems” merited the appellant’s removal from office makes its decision
unreasonable, as unreasonableness is explained in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47. Put another way, without any
explanation of why these comments merited removal, the decision of the
Community Panel is not justified, transparent or intelligible. It follows that
the Federal Court erred in finding the decision to be reasonable.
[24]
The next question to be decided is, in the
circumstances of this case, what remedy should flow from this decision? Part
27.1 of the Election Rules requires that a by-election be held within 60 days
of an office of a Councillor becoming vacant. As explained by the Band’s Executive
Director in his affidavit, once the Community Panel issued its decision, the
appellant had 30 days to apply to the Federal Court for judicial review of the
decision. She did not. It was only because by order dated June 3, 2016, the
Federal Court granted the appellant an extension of time that she was permitted
to file her application for judicial review.
[25]
In the meantime, because the appellant failed to
promptly challenge the decision removing her from office and failed to obtain any
required order staying the decision, a by-election was held on February 13,
2016, and a new Councillor was elected. This constrains the remedy this Court
ought to grant in the exercise of its discretion; counsel for the appellant was
unable to cite any authority that would permit us to remove a validly elected
Councillor from office.
[26]
In this circumstance, 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 on the appellant running for office in the
election to be held in 2018. As the vacancy caused by the removal of the
appellant has been filled and the appellant is no longer a Councillor, there is
no purpose in returning the matter to the Community Panel.
[27]
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 appellant shall serve and file her submission within 21 days of
these reasons. The respondent shall serve and file its submission within 28
days of these reasons.
“Eleanor R. Dawson”
|
“I agree.
|
|
Wyman W. Webb
J.A.”
|
|
“I agree.
|
|
Donald J.
Rennie J.A.”
|
Email this Content