Docket: T-1254-16
Citation:
2017 FC 692
Ottawa, Ontario, July 18, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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COWESSESS FIRST
NATION NO. 73
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Applicant
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and
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GARY PELLETIER,
STAN DELORME, PATRICK REDWOOD, CAROL LAVALLEE, MALCOLM DELORME, CURTIS LERAT
AND TERRENCE LAVALLEE
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Respondents
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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 which
challenges a June 27, 2016 decision [the Decision] of the Cowessess First
Nation Election Appeal Tribunal [Tribunal].
[2]
For the reasons that follow, the judicial review
will be granted.
[3]
The Decision overturned the results of the April
27, 2016 Cowessess First Nation election [the Election] with respect to three
elected councillors.
[4]
Specifically, the Tribunal found that successful
candidates Carol Lavallee and Malcolm Delorme had been ineligible to run for
office because they were not in good standing as a result of the costs awarded
in a prior Federal Court of Appeal [FCA] decision. It also found that successful
candidate Curtis Lerat had been ineligible to run for office as he had failed
to provide a current criminal record check.
[5]
As a result of these findings, the Tribunal
found that because the grounds of appeal set out in the notice of appeal [Notice]
had been proven and had affected the outcome of the Election, the three councillor
positions would instead go to the next three eligible candidates by vote count.
The Tribunal ordered Cowessess First Nation No. 73 [Cowessess] to effect these
changes.
[6]
Cowessess comes to this Court seeking an Order
overturning the Tribunal’s Decision, and confirming the original Election
results, so that Carol Lavallee, Malcolm Delorme, and Curtis Lerat can sit on Council.
Terrence Lavallee is the only Respondent who opposes this application. All
other named Respondents, including those who stand to become councillors if
this application is dismissed, have sworn affidavits stating that they either
support or do not oppose this application.
[7]
In terms of legal arguments, Cowessess
challenges the Tribunal’s Decision on two grounds, namely that the Tribunal’s Decision
was flawed in its (a) procedural unfairness to Curtis Lerat, and (b)
unreasonable findings with respect to Carol Lavallee and Malcolm Delorme.
[8]
In addition to these two substantive issues
which lie at the heart of this dispute, Terrence Lavallee [Mr. Lavallee or the
Respondent] raised a preliminary procedural argument which, if valid, would put
an end to the matter: he argues that Cowessess lacks standing, and therefore
the First Nation is not in a position to advance this application before the
Court.
II.
Analysis
[9]
Both parties agree that the applicable standard
of review is reasonableness, except for questions of procedural fairness, which
are to be assessed on a correctness basis. This is consistent with the case law
(Lavallee v Ferguson, 2016 FCA 11 at para 19; Johnny v Adams Lake Indian
Band, 2017 FC 156 at para 23).
III.
Analysis
A.
Procedural Issue: Standing of the First Nation
[10] As the procedural issue that Mr. Lavallee raises — that this
application should fail for lack of standing — would be determinative of the
judicial review if found in his favour, I will address it first. I conclude
that Cowessess indeed has proper standing to bring this application.
[11] Mr. Lavallee submits that, since only a candidate can appeal an
election under the Cowessess First Nation #73 Custom Election Act [the
Act], Cowessess, as a First Nation, does not have standing to bring this
application. Mr. Lavallee contends there is no mechanism for Cowessess to
properly bring this application for judicial review under the relevant
legislation, relying on Alberta Liquor Store Association v Alberta (Gaming
and Liquor Commission), 2006 ABQB 904 at para 11 [Alberta], which
cited T.A. Cromwell (as he then was) in Locus Standi: A Commentary on the
Law of Standing in Canada (Toronto: Carswell, 1986) at 107-108:
The nature of the regulatory scheme is
relevant to standing decisions in at least two ways. First, provisions dealing
with who is entitled to notice of proceedings and to be heard may be considered
an indication that those persons are “interested” in the proceedings. Second,
where the challenged decision is from a body with standing rules of its own,
those rules may guide the Court as to who is “interested” in the proceedings.
[12] Looking at the regulatory scheme in this case, Mr. Lavallee notes
that subsection 11.05(a) of the Act only permits a candidate in an election
(defined as a duly nominated person seeking election under subsection 2.01(e)
of the Act) to appeal an election, assuming certain requirements are met.
[13] Mr. Lavallee argues that as a result of the restriction contained in
section 11.05, neither an elector (defined as a registered member of Cowessess under
subsection 2.01(n) of the Act), nor Cowessess itself as the First Nation
government, can bring a judicial review of an election appeal. In other words,
the ability to challenge that appeal should not be broader than the originating
right of appeal contained in section 11.05 of the Act.
[14] Mr. Lavallee refers specifically to subsection 11.05(n) of the Act,
which states that “upon being notified of the decision,
the Council shall enforce the decision and put the terms thereof into effect.”
Accordingly, in Mr. Lavallee’s view, providing standing to Cowessess would
disregard this section in its entirety. Mr. Lavallee further asserts that Cowessess
has neither a direct interest, nor a broader public interest in the
proceedings.
[15] On the latter point of public interest, Mr. Lavallee argues that it
would be odd and offensive for Cowessess to argue that some of its members
cannot sit as councillors, when a First Nation, as an entity through its Chief
and Council, has no standing to contest an election on the basis of who should
be its elected members. By extension Mr. Lavallee contends that Cowessess cannot
have standing to challenge the outcome of an appeal of an election when it has
not been a party to the appeal proceedings.
[16] For this reason, according to Mr. Lavallee, Bands respond to
First Nations election disputes in the Federal Court; they do not bring them as
applicants. This would be akin to a federal or provincial government contesting
the results of election in which members of legislatures are democratically
elected to their positions. In this regard, Mr. Lavallee maintains that Cowessess
only has an indirect (rather than a direct) interest in the Election, which is
insufficient to imbue it with standing, relying on Sandy Bay Ojibway First
Nation v Canada (Minister of Citizenship and Immigration),
2006 FC 903 [Sandy Bay].
[17] Cowessess counters all above arguments, arguing that it has standing
due to its direct interest in the matter. Cowessess contends that even if it
does not fit within a technical reading of reading ofthe Act, it nonetheless
has a direct interest in the Election outcome, as described in Alberta
at paras 8 and 10–13.
[18] To assist in answering this preliminary issue — namely whether a
First Nation can indeed have standing to launch an application for judicial
review to challenge the decision of the Tribunal under the Federal Courts
Act — the jurisprudence establishes that there are two bases upon which
standing can be established: (i) direct standing, for those “directly affected”, and (ii) public interest standing
(Forest Ethics Advocacy Association v Canada (National Energy Board),
2014 FCA 245 [Forest Ethics] at paras 29-36; League for Human
Rights of B’Nai Brith Canada v Odynsky, 2010 FCA 307 [B'Nai Brith]
at paras 57-62).
[19] The FCA recently summarized the law in this area: “[t]o have direct standing in a proceeding challenging an
administrative decision, a party must show that the decision affects its legal
rights, imposes legal obligations upon it, or prejudicially affects it in some
way” (Gitxaala Nation v Canada, 2016
FCA 187 [Gitxaala] at para 83).
[20] Being “directly affected” is
specifically outlined in section 18.1(1) of the Federal Courts Act:
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18.1 (1) An
application for judicial review may be made by the Attorney General of Canada
or by anyone directly affected by the matter in respect of which
relief is sought. [Emphasis added.]
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18.1 (1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la
demande. [Mon soulignement.]
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[21] Turning back to the jurisprudential interpretation of this
provision, in order for a party to be “directly
affected”, the decision must have impacted the party in one of three
ways, by having (i) affected its legal rights, (ii) imposed “legal obligations” upon it, or (iii) prejudicially
affected it in some way (Gitxaala at para 83; Forest Ethics at para 30; B’Nai
Brith at para 58). Here, there is no question that the First Nation (Cowessess)
is directly affected by the Tribunal’s Decision, which imposes legal
obligations on it.
[22] In this case, subsection 11.05(n) of the Act states that “upon being notified of the decision, the Council shall
enforce the decision and put the terms thereof into effect.” In other
words the Tribunal’s Decision imposes legal obligations on Cowessess, even
though it neither appealed the Election nor was a named respondent before the
Tribunal. Cowessess is directly affected precisely because it is responsible
for enforcing the Tribunal’s Decision, which thus imposes legal obligations on
Cowessess. I find that the First Nation therefore has direct standing to bring
this judicial review.
[23] As to the Respondent’s argument that a First Nation cannot bring an
application of this nature (judicial review) before the Court to challenge an
election matter, a couple of further observations may be instructive as to why
I see no reason that Cowesses cannot be the Applicant in the present matter.
[24] First, I disagree with the Respondent in its argument that there is
no precedent for a First Nation to bring an application to challenge the
composition of its own government, i.e. Chief and Council.
[25] In Dene Tha' First Nation v Didzena, 2005 FC 1292 [Dene],
the First Nation brought an application for a permanent injunction to ban the respondent
from calling himself Chief. The respondent had won the election as Chief but
later, during his term, questions arose regarding his conduct, and a Band Council
resolution [BCR] purportedly terminated him. The respondent took the position
that the BCR was not properly passed, and thus that he was never effectively removed
from office, and instead continued to be Chief.
[26] Justice Layden-Stevenson agreed and dismissed the application of the
First Nation, deeming the BCR to have been a nullity. At no time did Justice
Layden-Stevenson question the ability of the First Nation to bring the application
against its elected Chief.
[27] Second, and on a related note, case law has clearly established that
First Nations have the capacity to sue and be sued (Horseman v Horse Lake
First Nation, 2005 ABCA 15; Jack Woodward, Native Law, (Toronto:
Carswell, 2006) (loose-leaf revision 2017-1), ch 1 at para 490).
[28] More recently, this principle was the subject of Federal Court
commentary in Kwicksutaineuk Ah-Kwa-Mish First Nation v Canada (Attorney
General), 2012 FC 517 [Kwicksutaineuk].
There, the applicant brought an application for
judicial review of the Department of Fisheries and Oceans’ decision to issue
aquaculture (fish farming) licences to two corporate respondents. The First
Nation was not a party to the initial decisions being challenged by way of
judicial review.
[29] The respondents argued, on the standing issue, that the matter
should have been brought to the Federal Court through a representative proceeding
under Rule 114 of the Federal Courts Rules, SOR98/106 [Rules], i.e.
brought by a person acting as a representative on behalf of one or more other
persons, rather than by the First Nation itself. Justice de Montigny
disagreed, deciding that the First Nation indeed had the ability to initiate
and bring the application for judicial review. Justice de Montigny wrote at
para 88 of Kwicksutaineuk:
I recognize that in many cases involving
claimed Aboriginal rights and the duty to consult, the applicant is an individual
member of the First Nation or its chief on behalf of the First Nation (see, for
example, Haida Nation v British Columbia (Minister of Forests), 2004 SCC
73 , [2004] 3 S.C.R. 511 [Haida]; Taku River Tlingit First Nation v British
Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Ka'a'Gee
Tu First Nation v Canada (Attorney General), 2007 FC 763, 315 FTR 178). That
does not detract from the fact, however, that Indian Bands are a legal and
political entity that can themselves be sued and become the subject of a legal
pronouncement (see Wewayakum Indian Band v Wewayakai Indian Band,
[1991] 3 FC 420 (available on CanLII). While it is true that this case related
to a right of occupancy and use of a reserve and did not involve Aboriginal
rights, as submitted by the Respondent Attorney General, it does not detract
from the fact that the Band itself was the applicant, as opposed to a
representative acting on its behalf. Similarly, a number of Indian Bands
brought an application for judicial review of a decision of the Minister of
Fisheries and Oceans, on the basis that the Minister had failed to uphold the
honour of the Crown and to meet his constitutional duty to consult and
accommodate; nowhere did the Court object to the standing of these bands because
no representative was involved (Ahousaht First Nation v Canada
(Fisheries and Oceans), 2008 FCA 212, 379 NR 297). [Emphasis added.]
[30] Similar to the scenario in Kwicksutaineuk, there is no
question that the Applicant in this judicial review was not a party to the
proceedings below: Cowessess was neither named nor appeared in the election
appeal before the Tribunal.
[31] I will conclude on this first issue of standing by commenting on Sandy
Bay, which was cited by the Respondent. I disagree that Sandy Bay supports
his position that Cowessess has no standing in this matter. In Sandy Bay,
the First Nation had sought the judicial review of decisions of the Minister
regarding the immigration status of a purported band member, a Roman Catholic
nun from Nigeria. The First Nation’s interest was far removed from the personal
immigration matters at stake. The Nigerian national had no status under the Indian
Act, RSC 1985, c I-5. The Court concluded that while the nun was directly
affected by the pending deportation order from Canada, the First Nation was
only indirectly affected by the matter in respect of which relief was sought.
[32] Here, in contrast with Sandy Bay, Cowessess has a direct
interest in ensuring that its elections are conducted in accordance with the
Act, and that any decision to remove an elected member from the Band Council is
made in a fair and proper way.
[33] Before leaving the issue of standing, I would be remiss in failing
to make it abundantly clear that standing has been granted to Cowessess in
light of the very particular circumstances of this case, due to the following
factors and factual backdrop.
[34] First, it is clear from the evidence presented that the effects of
the Tribunal ruling and the status quo are impacting the governance of the
First Nation as a whole. In other contexts, one might imagine situations where
challenging an election outcome appeal, led by the Band and paid with Band funds,
would result in a conflict of interest due to personal issues that the Chief
and/or members of Council may have.
[35] The evidence here, however, shows that this is not a situation where
personal grievances are being addressed through the First Nation funding.
Rather, the evidence shows that it is a matter of the Band’s interest as a
whole to get the matter resolved.
[36] Second, there was evidence of significant consultation that took
place before Cowessess decided to pursue this judicial review. That includes
the following steps, according to the affidavits of Chief Delorme (Tab 3, Applicant’s
Record [AR]), Patrick Craig Redwood (Tab 4, AR), Gary Pelletier (Tab 5, AR) and
Stanley Delorme (Tab 6, AR):
•
On June 29, 2016, an emergency Chief and Council
meeting was held where it was decided that Curtis Lerat, Malcolm Delorme and Carol
Lavallee would step back while the other members of Council [the Uncontested
Members] decided how to proceed in view of the Decision.
•
During the following week, the Uncontested
Members met with indigenous governance professionals, had a community meeting,
met with legal counsel and regularly met to discuss the issue.
•
On June 30, 2016, there was a meeting with Stan
Delorme, Gary Pelletier and Patrick Redwood where it was explained to them that
the Tribunal concluded that they should be members of Council.
•
On July 3, 2016, Cowessess held a Band meeting,
inviting all members of the First Nation.
•
The Uncontested Members then all met two days
later, on July 5, 2016, and made a preliminary decision to launch an
application for judicial review.
•
The Uncontested Members met again on July 6,
2016, and confirmed their intention. They held a unanimous vote on the issue.
•
On the afternoon of July 6, 2016, the
Uncontested Members announced their decision to the contested members. Stan
Delorme was later advised over the phone.
[37] Finally, six of the named Respondents, including all three affected
negatively by the Decision (Curtis Lerat, Carol Lavallee and Malcolm Delorme), either
supported or took no position in the judicial review. This provides further
evidence that this was truly a community decision rather than anything
motivated by personal gain.
B.
Was the Decision Procedurally Unfair to Mr.
Lerat?
[38] Cowessess challenges the Tribunal’s Decision on the basis of
procedural unfairness to Mr. Lerat. The Tribunal stated that it reviewed each candidate’s
eligibility documents related to criminal record checks, as provided by the
Chief Electoral Officer [CEO], who had deemed Mr. Lerat eligible. The Tribunal
noted that Mr. Lerat’s criminal record check was dated February 2015, which was
not “current” as required by the eligibility
criteria pursuant to subsection 7.04(d) of the Act. As a result, the Tribunal
found that Mr. Lerat failed to meet the eligibility requirements for
nomination, and thus was ineligible for candidacy as a councillor.
[39] Cowessess makes two arguments with respect to Mr. Lerat. The first
is that the Tribunal only has jurisdiction to consider the grounds of appeal
stated in Mr. Lavallee’s Notice, which did not raise the issue of Mr. Lerat’s
criminal record check.
[40] Related to this first issue is the second—whether the Tribunal
breached its duty of procedural fairness because Mr. Lerat did not have the
opportunity to properly respond to the criminal record check issue.
[41] When the Tribunal gave notice that it would hear the appeal and set
down a date for a hearing, Mr. Lerat was not listed as one of the designated
respondents, was not provided with a copy of the Notice, and was not given the
opportunity to address the issue of his criminal record check.
[42] Cowessess contends that, if provided with a fair opportunity to
address the Tribunal’s concerns, first by way of notice, and then at the
hearing, Mr. Lerat could have presented evidence to the Tribunal which would
have affected its Decision. In particular, Cowessess claims that Mr. Lerat’s
criminal record check was obtained from the RCMP on February 11, 2016, but due
to a clerical error the report was erroneously dated February 11, 2015. That error
went unnoticed, and could have been easily corrected with fair warning.
[43] Mr. Lavallee denies the assertion that the Tribunal violated Mr.
Lerat’s right to procedural fairness in that he was given the opportunity to be
heard before the Tribunal, which cured any defect with respect to notice.
Furthermore, Mr. Lavallee asserts that if Mr. Lerat had concerns about the Notice
and its fairness, he should have raised his objections at the hearing; issues
of procedural fairness must be raised at the earliest opportunity (Kamara v
Canada (Citizenship and Immigration), 2007 FC 448).
[44] Mr. Lavallee further takes issue with Cowessess’ argument that the
Tribunal erred in considering the criminal record check because it was not a
ground of appeal. Mr. Lavallee says it is inaccurate because the Notice states:
“candidates that are not in good standing […] have
taken votes away from the candidates that are in good standing.”
[45] Mr. Lavallee elaborates that while the criminal record check was not
specifically named, the wording of the Notice and the Act allowed the Tribunal
to consider matters beyond those specifically listed in the Notice. Mr. Lavallee
points in this regard to Meeches v Assiniboine, 2016 FC 427 [Meeches],
aff’d in part 2017 FCA 123. Meeches concluded that candidate eligibility
falls within the concept of “election practices”
as contemplated by an election act that Mr. Lavallee contends was very similar
to Cowessess’ Act. Given these observations, Mr. Lavallee concludes that the
criminal record check being more than a year old, it was entirely reasonable
for the Tribunal to conclude that it was not current.
[46] I agree with Cowessess on the issue of procedural fairness for the
following reasons. The Tribunal’s jurisdiction, pursuant to section 11.05 of
the Act, does not extend to grounds outside the appeal notice:
11.05 (l) upon conclusion of the appeal
hearing, the Election Appeal Tribunal shall endeavour to reach a decision on
the appeal as soon as practical and in its decision shall:
(i) determine whether the appellant(s) have
proven the grounds for appeal set out in the notice of appeal;
(ii) determine whether the evidence as
presented may reasonably have affected the outcome of the Election or
By-Election appealed from;
[47] The appellant has the burden of proving the grounds raised in the Notice.
The Tribunal is not thereafter at liberty to seize itself of new matters. I do
not agree with Mr. Lavallee that Mr. Lerat’s criminal record check was raised
by implication in the Notice. Grounds raised in originating documents, whether
a statement of claim, application for judicial review, or appeal thereof, need
to be clear and not leave the responding party to have to guess. Without
knowing the case, the responding party cannot mount a proper defence. The onus
is on the moving party to clearly articulate the claim or ground of review.
[48] The wording of the Act is also clear. It states that the Tribunal’s
job is to determine whether the appellant has proven the grounds of appeal set
out in the notice of appeal. The Act does not say that the respondent has to
prove he or she satisfied every eligibility criterion. That would, of course,
be impractical, beyond running counter to a common sense or efficient approach
to an appellate process.
[49] Here, the Tribunal should not have considered eligibility relating
to the criminal record check because it was not raised as a ground of appeal.
Procedural fairness requires an adequate opportunity to respond to allegations,
which was not provided in this case. This fairness principle has been upheld in
Sparvier v Cowessess Indian Band No 73, 1993 CarswellNat 808 (WL Can) (FCTD)
[Sparvier], a case which should be familiar to some of the parties
involved, since that 1993 judicial review also involved some of them. In Sparvier
at paras 55–57, Justice Rothstein held:
Respondents’ counsel takes the position that
because the procedure of the Appeal Tribunal was in accordance with Band
custom, the degree of natural justice or procedural fairness owed to the
applicant is minimal. To hold otherwise, it was said, would render nugatory the
procedures followed by all other bands in Canada who elect their officials
according to their own custom, because the Court would simply be imposing its
rules of procedure in place of customary band procedures.
No authority was cited by counsel for the
respondents to the effect that the principles of natural justice or procedural
fairness are not to be applied in situations where band custom dictates
procedures to be followed by band tribunals.
While I accept the importance of an
autonomous process for electing band governments, in my opinion, minimum
standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People
taking more control over their lives should not be quickly interfered with by
the courts. However, members of bands are individuals who, in my opinion, are
entitled to due process and procedural fairness in procedures of tribunals that
affect them. To the extent that this Court has jurisdiction, the principles
of natural justice and procedural fairness are to be applied. [Emphasis
added.]
[50] In coming to this conclusion, Justice Rothstein considered leading
Supreme Court jurisprudence on the contents of procedural fairness, including Lakeside
Colony of Hutterian Brethren v Hofer, [1992] 3 S.C.R. 165, Nicholson v
Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 SCR
311, and Martineau v Matsqui Institution Disciplinary Board, [1980] 1
SCR 602. Justice Rothstein concluded that the basic requirements of procedural
fairness are applicable to the Election Appeal Tribunal of Cowessess — namely
those of notice, an unbiased tribunal, and the opportunity to make
representations. Specifically on the notice component of procedural fairness,
Justice Rothstein found as follows at paras 82-83 of Sparvier:
The Cowessess Indian Reserve Elections Act
is silent on the issue of notice, nor do the authorities set out, in terms of
hours or days, guidelines as to what does or does not constitute adequate
notice. What is adequate notice must be determined on the circumstances of each
case. Clearly, a notice period of less than twelve hours is very short. Such a
short notice period raises a number of concerns: (a) relevant persons may not
be available; (b) there is practically no time to investigate the facts
relating to the subject matter of the appeal; (c) it is unreasonable to expect the
participants to adequately organize and prepare their representations. No
evidence was led to indicate any compelling reason for the Tribunal commencing
its proceedings upon such short notice.
It is true that the applicant had actual
notice and attended the Appeal Tribunal proceedings. However, his attendance
does not detract from the disadvantageous conditions of having to proceed
without an adequate opportunity to investigate the matter and prepare
representations. I think it is reasonable for me to infer that the applicant’s
participation did not represent genuine consent to the proceedings of the
Appeal Tribunal and that he did not waive his right to adequate notice.
[51] Here, Mr. Lerat did not know the case he had to meet for his
criminal record check, and could not properly respond to the allegations since
there was no mention of the issue in the Notice.
[52] Furthermore, in his affidavit, Mr. Lerat attests that the issue of
his criminal record check was never addressed at the hearing. Rather, he states
that he first learned of the clerical mistake when he received the Tribunal’s
Decision. Thus, he could not have waived his right to notice as he still was
not aware of the issue during the hearing.
[53] In Sparvier, Justice Rothstein concluded that the mere fact
of the applicant’s participation in the hearing did not constitute consent to
the proceedings, nor waiver of his right to adequate notice. On the present
facts, the same reasoning applies even more forcefully: even if Mr. Lerat had
been notified at the hearing, notice would have been clearly insufficient to
meet the Tribunal’s duty of fairness. Just as 12-hour notice was inadequate in Sparvier
due to an inadequate opportunity to prepare, so too was the complete lack of
notice in this instance. A fundamental tenet of fairness is that one must know
the case to be met, and the duty to provide such notice cannot be evaded
through vague or unclear notification: the notice must be clear on its face.
[54] Mr. Lavallee argues that the Notice, in referring to “good standing” and “election
practices”, refers to the eligibility of all the candidates.
[55] I disagree: the simple mention of “good
standing” in the Notice is not sufficiently clear to refer to a
challenge to the validity of evidence brought with respect to criminality—which
is simply one of the criteria underlying eligibility. For instance, “good standing” in the Act refers to repaying a debt
owed to Cowessess (subsection 2.01(o)). It cannot reasonably be construed as
requiring all the candidates listed in the Notice to prove, for a second time
(the first being to the Chief Electoral Officer at the time of the Election),
that they met all eligibility criteria to run in the Election, absent a
specific challenge.
[56] While Mr. Lavallee is correct that in Meeches Justice
McDonald found that “election practices” encompassed
candidate eligibility, Meeches’ context was entirely different: there,
the context was the jurisdiction of the Appeal Committee, rather than
procedural fairness, as in this matter. While a broad interpretation of election
practices makes sense in Meeches, I do not find that in our situation,
the mere mention of election practices would put all the candidates on notice
that they may be required to provide proof that they meet every single
criterion for eligibility under the Act. The issues of jurisdiction and of
proper notification to parties are distinct.
[57] In short, impugned candidates must be given sufficient notice to
understand the basis on which their erstwhile successful election is being
challenged, to provide them with the opportunity to mount a full and informed
response. Here, that didn’t occur for Mr. Lerat, and, for the reasons
explained above, I find his rights to procedural fairness were violated.
C.
Was the Decision Unreasonable in Relation to Ms.
Lavallee and Mr. Delorme’s Ineligibility on Account of “Debts”?
[58] The Tribunal held that Ms. Lavallee and Mr. Delorme were ineligible
due to debts that were found to have accrued as a result of a FCA cost award
against them as part of the unsuccessful party in another case. Specifically, the
Tribunal held that since the First Nation had funded the legal costs of the FCA
litigation, Cowessess had the authority to issue a BCR establishing (1) that
Carol Lavallee and Malcolm Delorme, as two of the respondents in that FCA
litigation, were jointly and severally indebted to Cowessess in the amount of
$27,010.66 calculated pursuant to column III of the table to Tariff B of the Federal
Courts Rules; (2) a repayment plan from Ms. Lavallee and Mr. Delorme to
Cowessess; and (3) that until that plan was complied with, Ms. Lavallee and Mr.
Delorme would not be in “good standing.”
[59] Cowessess argues that the Tribunal made unreasonable errors in its finding
that this award constituted a “debt” owed by
each of Ms. Lavallee and Mr. Delorme, because:
- The Tribunal
obtained letters of the two candidates’ “good
standing” from Cowessess’ senior accountant and opinion letters
from their legal counsel confirming that costs awarded had yet to be
assessed, and were thus not yet determined by the FCA, and anyway only the
Court could assess costs - not the winning party or the Applicant (Cowessess).
Thus, Ms. Lavallee and Mr. Delorme did not owe any outstanding debts to Cowessess.
Cowessess claims that these letters were errantly overlooked or disregarded,
because the unassessed costs had not crystallized as debts;
- Cowessess itself
was not a party to the FCA decision and the Tribunal overlooked evidence
that the Applicant had been improperly assigned the cost award by the
members of Chief and Council who voted on that BCR.
[60] Mr. Lavallee responds that the Tribunal was aware of the evidence in
question and adequately addressed it. With respect to the accountant’s opinion,
Mr. Lavallee notes that the Tribunal addressed it. Furthermore, he argues that
the letters from legal counsel were only opinions: the Tribunal was free not to
address them; there is no obligation on the Tribunal to address every piece of
evidence and it wrote a comprehensive decision citing the key evidence. As
counsel for Mr. Lavallee stated during the hearing, referring to the legal
opinions: “They’re not evidence. They’re not case law.
They’re not even from a textbook. They’re not something that should be
considered by a Court, nor should they be considered by a tribunal.”
[61] I find, however, that these legal opinions were important documents
before the Tribunal that merited comment, even if that was a brief explanation
as to why they were being disregarded or given little weight. Indeed, the
Tribunal wrote at the outset of its Decision that it “must
consider all evidence put forth which in its opinion is reliable and relevant
to the determination of an Order with respect to this appeal.”
[62] These opinions formed a central part of Ms. Lavallee’s and Mr.
Delorme’s submissions. If they were not reliable or relevant, the Tribunal
needed to state so, and at a minimum briefly explain why that was the case.
Failing to do so rendered the Decision unreasonable due to a lack of
transparency, intelligibility and justification on this particular issue.
[63] In Square v David, 2012 FC 624 at para 23, Justice Rennie
held:
In addition, the substance of the
applicant’s concerns were set forth, in detail, in a February 26, 2003, letter
from their counsel. Neither this letter, nor the substance of the arguments
contained in the letter, are considered in the Minister’s decision. The
decision fails to consider the relevant factual and legal submissions in issue,
and thus violates the principle that the reasons must address the key factual
legal issues: Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425. [Emphasis added.]
[64] I find the same principles apply to this Decision. The submissions
were important, amongst other reasons, because they addressed the notion of
costs and debt within the context of a Court order and in relation to the Act. These
were central issues to candidate eligibility, forming the basis on which the
Tribunal overturned the CEO’s prior finding that the candidates were indeed
eligible. If those opinions were neither reliable nor relevant, the Tribunal
owed an explanation why. From all appearances, the letters (contained at Tabs 3K,
M, N, 7A and 8A of the Applicant’s Record) merited some comment because they
addressed the crystallization of Court costs, and whether they were properly
considered “debts.”
[65]
There is jurisprudence which holds that costs
can only be deemed to be a debt once quantified by the Court. In Condominium
Plan No 7510189 v Jones, 1997 CarswellAlta 66 (WL Can) (CA), the Alberta
Court of Appeal held at para 36:
[t] he object of
taxation is to ensure that an account for the costs of legal services is
reasonable. Until that determination is made, the amount of the payment to
be made by the Appellants is not known with certainty. It cannot therefore be
said to be a ‘debt’ because a debt is ‘a sum payable in respect of a
liquidated money demand, recoverable by action’.” [Emphasis added.]
[66] Indeed, until the amount of costs has been fixed, there is no
ability to make a payment. No party can unilaterally determine and set the
figure. Rather, the payment of costs is an area over which the Court has full
discretionary power (Armada
Lines Ltd v Chaleur Fertilizers Ltd,
[1997] 2 S.C.R. 617 at para 18). As Justice Mosley of this Court later held in Shotclose
v Stoney First Nation, 2011 FC 1051 at para 8:
The Court may fix costs in a lump sum or
leave costs to be assessed: Rules 400 (4) (5); Dimplex North America Ltd. v.
CFM Corp 2006 FC 1403 aff’d 2007 FCA 278. While the Court has full
discretion over the amount of costs to be awarded, the relevant factors in the
non-exhaustive list delineated in Rule 400(3) must be considered in deciding,
not only the quantum of costs, but also their allocation and the determination
of by whom such costs should be paid: Francosteel Can. Inc. v. “African
Cape” (The), [2003] 4 FC 284, 301 NR 313, 2003 FCA 119 at para 20.
[67] Certainly, any party may propose costs for any proceeding, or both
parties may consent to them, and the Court may agree to those costs. However,
if such a cost quantum is not proposed and agreed to or otherwise ordered by
the Court, then costs must be taxed considering an accounting of their various
components - usually provided in a bill of costs. A full regime for the
awarding and assessment of costs is set out in Part 11 of the Rules. As
succinctly stated by this Court in Bégin v Séguin, 2008 FC 948 at para 3,
“only the Court has the power to award costs.”
[68] Therefore, turning back to the facts at hand, while costs have been
awarded by the FCA, they have not been assessed, and that function clearly
falls within the domain of the Court, not the parties (Rule 405).
D.
The Issue of the Band Council Resolution
[69] Finally, Mr. Lavallee maintains that in coming to its decision on
Ms. Lavallee’s and Mr. Delorme’s eligibility, the Tribunal had no
jurisdiction to consider the BCR. There is no need for me to address the issue
of the BCR’s validity, given my conclusion on the evidentiary point above.
IV.
Conclusion
[70] First, as a procedural matter, Cowessess has standing to bring this
application pursuant to subsection 18.1(1) of the Federal Courts Act,
being directly affected by the proceedings below.
[71] Second, it is clear that the jurisdiction of the Tribunal is limited
to grounds raised in the Notice, and the appellant has the burden of proving those
grounds. The Tribunal cannot seize itself of new matters. As the issue of
Mr. Lerat’s criminal record check was not raised in the Notice, the
Tribunal improperly considered it and acted outside its jurisdiction in doing
so.
[72] Third, significant submissions with respect to the FCA decision were
placed before the Tribunal—namely legal opinions with respect to the purported
debt and resulting ineligibility of Ms. Lavallee and Mr. Delorme. The
Tribunal itself set out that it had to consider all evidence put forth, which
in its opinion was reliable and relevant to the determination of an Order with
respect to the appeal. If these legal submissions were not reliable or
relevant, the Tribunal needed to state so, and explain (even briefly) why that
was the case. Failing to do so rendered the Decision unreasonable due to a lack
of transparency, intelligibility and justification.
[73] Accordingly, the judicial review is granted. Although this outcome
is not that sought by Mr. Lavallee, I commend his counsel, Ms. Troup, for her
very able oral and written presentations to the Court.
A.
Remedy
[74] Cowessess requests that this Court
a)
quash the aspects of the Decision which
concluded that Carol Lavallee, Malcolm Delorme, and Curtis Lerat were
ineligible to run for the office of Resident Councillor;
b)
set aside the Appeal Tribunal’s direction to
remove Carol Lavallee, Malcolm Delorme, and Curtis Lerat from elected office
and to award Gary Pelletier, Stan Delorme, and Patrick Redwood positions on the
Band Council of the First Nation; and
c)
reinstate and affirm the results of the April
27, 2016 Election as originally declared by the Chief Electoral Officer.
[75] I disagree that these are appropriate remedies in this case. The
role of this Court in a typical judicial review is to assess the Tribunal’s
Decision, and if it erred, point out those errors and have the Tribunal decide
anew, rather than to step into the Tribunal’s shoes and make the decision for
it (even though this Court has the jurisdiction to quash the Decision pursuant
to section 18 of the Federal Courts Act).
[76] Mr. Lavallee, on the other hand, suggests that the appropriate
remedy in this matter is for the Court to order a new election for the councillor
seats.
[77] I do not find this to be an appropriate remedy either. The Tribunal
has limited powers in the event that it grants an appeal. It can only do one of
the following:
11.05 (l) upon conclusion of the appeal
hearing, the Election Appeal Tribunal shall endeavour to reach a decision on
the appeal as soon as practical and in its decision shall:
(i) determine whether the appellant(s) have
proven the grounds for appeal set out in the notice of appeal;
(ii) determine whether the evidence as
presented may reasonably have affected the outcome of the Election or
By-Election appealed from;
(iii) order, in the case the position under
appeal is that of Chief’s position, a By-Election where the Election Appeal
Tribunal is satisfied that the grounds for appeal have been proven and such
grounds may reasonably have effected [sic] the outcome of the Election or
By-Election appealed from, or, uphold the Election or By-Election where the
grounds of appeal have not been proven or, if proven, could not reasonably have
effected [sic] the outcome of the Election or By-Election appealed from; or
(iv) order, in the case the position
under appeal is that of a Resident Councillor or Non-Resident Councillor, that
the individual receiving the next number of highest votes in the Election or
By-Election under appeal be awarded the Councillor position where the
Election Appeal Tribunal is satisfied that the grounds of appeal have been
proven and such grounds may reasonably have effected [sic] the outcome
of the Election or By-Election appealed from, or, uphold the Election or
By-Election, where the grounds of appeal have not been proven or, if proven,
could not reasonably have effected [sic] the outcome of the Election or
By-Election appealed from; [emphasis added.]
[78] As the Tribunal itself cannot order a new election in the case of councillors’
positions, this Court cannot do so in its place. In Felix Sr v Sturgeon Lake
First Nation, 2011 FC 1139, Justice Bédard stated:
[56] The Court does not have jurisdiction to
set aside the election results and order a new election. Rules 3 and 4 of the
Rules do not allow the Court to go as far as creating a substantive relief that
is not provided for in the Election Act. Rule 3 is an interpretation rule and
Rule 4, often called the “Gap Rule”, is procedural in nature and does not allow
the Court to invent relief not contemplated in the applicable legislation. The
responsibility of deciding whether the election results should be set aside and
if a new election is warranted rests with the Appeal Tribunal and the Court
must not usurp that role.
(See also Felix v Sturgeon Lake First
Nation, 2014 FC 911 at paras 120-128).
[79] As calling a new election is not relief that is contemplated by the
applicable legislation, this Court is not in a position to grant it.
[80] I will instead ask that the Tribunal redetermine the issues
addressed in this judicial review in accordance with these Reasons.
[81] Costs will be ordered in favour of Cowessess.
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