Docket: T-883-16
Citation:
2016 FC 1399
Toronto, Ontario, December 20, 2016
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
COUNCILLOR
DORIS JOHNNY
|
|
Applicant
|
|
and
|
|
ADAMS LAKE
INDIAN BAND
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review made
pursuant to s 18.1 of the Federal Courts Act, RSC, 1985, c F-7 (“Federal
Courts Act”) of a decision of the Community Panel of the Adams Lake Indian
Band, dated on or about December 9, 2015, to remove the Applicant, Ms. Doris
Johnny, from elected office as a Band Councillor. The Applicant seeks to have
that decision quashed, the by-election held to replace her as Councillor
declared to be null and void, and other relief as set out in the Notice of
Application.
Background
[2]
The Applicant is a member of the Adams Lake
Indian Band (“Band”). She was elected as Councillor on March 1, 2015. On or
about November 13, 2015, a petition was presented by 10 members of the Band to
the Community Panel seeking to have the Applicant removed as Councillor on the basis
that she had breached the Oath of Office (“Petition”). The Petition was
brought in accordance with Rule 24 of the 2014 Adams Lake Secwepemc Election
Rules (“Election Rules”) and included a sworn affidavit of Joyce Kenoras setting
out the facts alleged to substantiate the grounds for removal from office.
[3]
One of the grounds set out in the Petition, and
the ground upon which the Applicant was eventually found to have breached her
Oath of Office, was her alleged unprofessional conduct at a September 9, 2015 general
Band meeting.
[4]
The facts surrounding the conduct of the
Community Panel’s investigation into the allegations are not agreed. Ultimately,
on December 8, 2015, the Community Panel determined that the Applicant had breached
her Oath of Office and, therefore, in accordance with the Election Rules,
removed her from office and declared the office vacant. A by-election was held
within 60 days of the office becoming vacant, pursuant to Rule 27 of the
Election Rules, which resulted in the election (by acclamation), on February
13, 2016, of another Band member to fill the seat which had been vacated by the
Community Panel.
Decision Under Review
[5]
The Community Panel addressed all of the
incidents that were raised in the Petition but found that there was a lack of
evidence suggesting any wrong-doing on the part of the Applicant for these,
with the exception of the incident on September 9, 2015. The Community Panel
found that the Applicant had breached two provisions of her Oath of Office as a
result of her conduct at the meeting held on that date and should be removed
from office. The decision inserted into the wording of the affidavit filed in
support of the Petition, following each discrete allegation described by date,
the Community Panel’s finding concerning that allegation. With respect to the
September 9, 2015 incident, the decision reads as follows:
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
• The Community Panel has completed their investigation and
find Doris Johnny bas 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.
Issues
[6]
In my view, the issues arising in this matter
can be framed as follows:
i.
Did the Community Panel breach the duty of
fairness owed to the Applicant?
ii.
Was the Community Panel’s decision reasonable?
Standard of Review
[7]
The Applicant submits that where allegations of
a breach of procedural fairness are raised, as they are in this matter, the
standard of review is correctness (Desnomie v Peepeekisis First Nation,
2007 FC 426 at para 11 (“Desnomie”); Weekusk v Wapass, 2014 FC
845 at para 10 (“Weekusk”)).
[8]
The Respondent submits that all of the issues
raised by the Applicant are reviewable on the reasonableness standard. While
issues of procedural fairness were previously reviewed on the correctness
standard, current jurisprudence calls for the reasonableness standard (Maritime Broadcasting
System Limited v Canadian Media Guild, 2014 FCA 59 at para 48 (“Maritime Broadcasting”).
The Respondent submits that even when applying the correctness standard to
issues of procedural fairness, deference is owed to the procedural choices made
by the decision-makers, in this case the Community Panel (Re: Sound v
Fitness Industry Council of Canada, 2014 FCA 48 at para 37 (“Re Sound”);
Maritime Broadcasting at para 77). Further, that the adequacy of the
Community Panel’s reasons is not a stand-alone basis on which to quash the
decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at paras 21-22. Issues of mixed
fact and law that fall within the Community Panel’s expertise and function
under the Election Rules are also reviewable on the reasonableness standard (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61). The Respondent also notes that the content of duty of fairness
that was owed to the Applicant and the spectrum of reasonable outcomes of the
Community Panel’s consideration of the Petition are highly contextual and
cannot be separated from the social context in which the decision was made (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (“Baker”);
Maritime Broadcasting at para 35).
[9]
In my view, it is well established that the
standard of correctness applies to questions of procedural fairness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 (“Khosa”);
Mission Institution v Khela, 2014 SCC 24 at para 79). Further, prior
jurisprudence of this Court has applied that standard to questions of
procedural fairness arising from the removal from office of band councillors (Tsetta
v Band Council of the Yellowknives Dene First Nation, 2014 FC 396 at para
24; Testawich v Duncan’s First Nation, 2014 FC 1052 at para 15; Gadwa
v Kehewin First Nation, 2016 FC 597 at paras 19-20 (“Gadwa”)).
[10]
The Respondent submits that Maritime
Broadcasting established that the reasonableness standard applies to issues
of procedural fairness. However, it has not pointed to any jurisprudence
concerning the removal of a band council member where that case has been applied
and this Court has very recently applied the correctness standard in that
circumstance (McCallum v Peter Ballantyne Cree Nation, 2016 FC 1165 at
para 19; Parenteau v Badger, 2016 FC 535 at para 36 (“Parenteau”)).
[11]
It is also well established that the
interpretation and application of custom election acts by a council of elders, an
elections officer or band council is reviewable on the standard of
reasonableness. I see no reason why this would not equally apply to the role
of the Community Panel in this matter (Johnson v Tait, 2015 FCA 247 at
para 28; Mercredi v Mikisew Cree First Nation, 2015 FC 1374 at para 17; Coutlee
v Lower Nicola First Nation, 2015 FC 1305 at para 3; Orr v Peerless
Trout First Nation, 2015 FC 1053 at para 44; Campre v Fort McKay First
Nation, 2015 FC 1258 at para 32; D’Or v St Germain, 2014 FCA 28 at
paras 5-6).
[12]
Reasonableness is concerned with the existence
of justification, transparency and intelligibility, and whether the decision
falls within a range of possible, acceptable outcomes (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47 (“Dunsmuir”); Khosa at para
59).
Adams Lake Secwepemc Election Rules
ratified on June 19, 2014
ADAMS LAKE
INDIAN BAND – VISION STATEMENT
…
“Our Creator placed us on this land to take
care of our people, our land, our language, our customs, our knowledge, our
culture, our title, to be ours forever and ever. Ensuring that we live in a
safe, healthy, self sufficient community where cultural value and identity are
consistently valued promoted and embraced by all”
PART 9: COMMUNITY PANEL
9.1 The roles and responsibilities of the
Community Panel are outlined in Appendix “E”.
9.2 The Community Panel shall consist of
five (5) elected members of which a majority decides all appeals and petitions
held to dispute an Election or any petition(s) to remove a Band Council
member(s) from the office of Band Council; held in accordance with the ALIB
Election Rules.
PART 22: OATH OF OFFICE
22.1 A Candidate who has been elected to
Band Council shall swear an Oath of Office before a duly appointed commissioner
on the first Monday following the Election (Appendix “A”).
…
22.3 No Candidate elected as Band Council
shall be permitted to assume office until they have sworn an Oath of Office
with the Electoral Officer.
PART 23: ELECTION APPEAL
…
23.6 A copy of the notice of appeal or
petition and any documents relied upon shall be delivered:
a) to the Band Council member whose election is being appealed;
or
b) to the Band Council member whose removal is sought; or
c) to the elected Band Council member(s) whose office is being
declared vacant;
d) to the person subject to the proceeding;
e) no proceedings of a Community Panel shall be invalid due to a
party not being available to make a representation to the Community Panel;
f) the Community Panel may permit any interested Electors, or
their agents or legal counsel, to make submissions on any issues being
considered by the Community Panel;
g) the Community Panel is empowered to conduct its own
investigation as to any allegations set out in a notice of appeal or a petition
but any such investigations shall be reasonable and in compliance with the
Rules but in any event no investigation shall extend the time in which the
Community Panel must make its decision. The Community Panel shall notify any
person subject to a proceeding that an investigation is being conducted.
23.7 In the case of an appeal/petition under
Section 22.7 or Part 24 the notice received by the Band Manager or designate of
appeal and supporting documentation shall be delivered to the Community Panel
within 48 hours.
23.8 In the case of an appeal by an Elector
under Part 24 the notice of appeal and supporting documentation shall be
delivered to the Band Council member whose election is being appealed within 48
hours of the Community Panel receiving the appeal.
23.9 The Community Panel shall issue a
written decision together with reasons in every appeal or petition within thirty
(30) days of the receipt of the appeal or petition.
23.10 The Community Panel will keep a record
of proceedings until the decision has been rendered, at which time the records
will be destroyed after 6 years within the presence of two witnesses.
…
23.14 If the Petition is for removal of a
Band Council member under Part 24 the Community Panel may:
a) confirm the Band Council member retains their office; or
b) remove the Band Council member from office and declare the
office vacant.
23.15 The Community Panel shall provide a
copy of the decision to the Band Council and to any party to an appeal or
petition.
…
Part 24: REMOVAL FROM OFFICE OF BAND
COUNCIL MEMBER/S
24.1 Band Council member/s may be removed
from office on one or more of the following grounds:
…
b) he/she has breached their Oath of Office.
24.2 Proceedings to remove a Band Council
member shall be commenced by a petition filed with the Community Panel and
signed by ten (10) Electors determined as of the date the petition is filed.
24.3 The Petition referred to in Section
24.2 shall also set out the facts in an affidavit sworn before a duly appointed
commissioner for taking oaths the facts substantiating the grounds for removal
from office of a Chief or Councillor and shall be accompanied by any supporting
documentation and a non-refundable free of three hundred ($300) dollars to the
Band Manager or designate for processing and delivery to the Community Panel.
Part 27: BY-ELECTIONS
27.1 In the event that the office of Chief
or Councillor becomes vacant, a By-election shall be held within sixty (60)
days on a date set by the Electoral Officer.
APPENDIX “A”: OATH OF OFFICE – ALIB CHIEF
& COUNCIL
…
(2) I will honestly, impartially and fully perform the duties of
my office with dignity and respect.
…
(5) I will uphold the Adams Lake Indian Band Community Vision.
Preliminary Issue
[13]
The Respondent, in its written submissions,
raised a preliminary and potentially determinative issue being that the
Applicant was required to file her application for judicial review within 30
days of the date of the decision (Federal Courts Act, s 18.1(2);
Election Rules, Rule 23.18). The Respondent submitted that not only had she failed
to do so, she had not made a request to this Court for an extension of time
and, in any event, could not meet the onus of establishing that she had
satisfied the test for an extension of time.
[14]
The Applicant, in her written submissions, did
not address this issue. However, at the hearing she advised that on March 17,
2016 she had filed a written motion, pursuant to Rule 369 of the Federal
Courts Rules, SOR/98-106 (“Federal Courts Rules”) seeking an
extension of time and, on June 3, 2016, an Order was issued permitting her to
file her application within 15 days of the Order, which she did.
[15]
It appears that the motion seeking an extension of
time was served on the Band, although perhaps not in full accordance with the Federal
Courts Rules requirements. A March 14, 2016 Affidavit of Doris Johnny
states that she served the Rule 369 motion “on Adams
Lake Indian Band on March 14, 2016 at 11 a.m.”, she does not state with
whom she left the motion or where she served it. The affidavit of service was
filed on March 17, 2016. At that point in time, as the motion for an extension
of time was the first step in the proceedings there was no counsel of record for
the Band.
[16]
Although counsel for the Applicant received the
Respondent’s written submissions on or about September 20, 2016, which submissions
raised and addressed the preliminary issue of late filing, she did not alert counsel
for the Respondent to the Order permitting the late filing until two days before
this hearing. Counsel for the Respondent then made inquiries of the Band and
it was determined that a copy of the Rule 369 motion had been received and had
been date stamped in March. However, this had not been communicated to the
Respondent’s counsel. As of the hearing date, counsel for the Respondent had
not been able to determine why the motion had not been brought to his
attention.
[17]
Counsel for the Respondent requested that, based
on the deficient affidavit of service, the matter be adjourned. Further, had
he known of the Rule 369 motion, he would have contested it and he wished to
consider an appeal of that Order. Further, his written submissions were
focused on the late filing issue and he was thereby disadvantaged.
[18]
Ultimately, I decided that the matter would
proceed on the merits. This was because, regardless of any defects in the form
of the affidavit of service, it was received by the Band as confirmed by the
date stamp. Thus, service could be validated pursuant to Rule 147 of the Federal
Courts Rules. Further, as part of its written submissions the Respondent
addressed the test for granting an extension of time as set out in Attorney
General (Canada) v Larkman, 2012 FCA 204, including whether there was some
potential merit to the application. In addition, the Respondent also specifically
addressed whether the decision was procedurally fair and was reasonable.
Accordingly, the request for an adjournment was denied.
Issue 1: Did the Community Panel breach the duty of
fairness owed to the Applicant?
Applicant’s Position
[19]
The Applicant submits that the Community Panel
breached its duty of procedural fairness as she was not provided with an
opportunity to address statements made against her and because she was not
provided with the Community Panel meeting minutes which she requested on or
about December 11, 2015 (Desnomie at paras 24-30; Weekusk at paras
66-70; Parenteau at paras 49-51). Further, that the Community Panel
failed to provide reasons for its decision and did not explain why it
discounted evidence of a witness which supported the Applicant’s position.
Respondent’s Position
[20]
The Respondent submits that the duty of
procedural fairness owed to a chief or councillor who is the subject of a
petition for removal in accordance with customary law is limited to the basic
principles of natural justice, being notice and an opportunity to be heard.
The Applicant was provided with adequate notice of the allegations made against
her by way of the Petition which provided details of the reasons why the
Petitioner sought to have the Applicant removed from office and she was
afforded two opportunities to be heard by the Community Panel to respond to the
allegations (Catholique v Band Council of Lutsel K’e First Nation, 2005
FC 1430 at para 56). Further, the Community Panel had an ongoing concern of
protecting the confidentiality of information as informed by the social context
of the community and the requirements of the Election Rules. A compelling
interest to keep information confidential outweighs the process of full
disclosure in some instances (Cartier v Canada (Attorney General), [1998]
FCJ No 1211 (FCTD); Weram Investments Ltd v Ontario (Securities Commission),
[1990] OJ No 918 (Div Ct)) including to avoid harm to ongoing relationships in
the community (Lindenburger v United Church of Canada, [1985] OJ
No 1195 (Div Ct), aff’d 20 OAC 381 (CA)).
Analysis
[21]
The content of the duty of procedural fairness “…is flexible and variable, and depends on an appreciation of
the context of the particular statute and the rights affected” (Baker
at para 22). This Court has previously applied the Baker factors in
the context of a custom election code and an application for judicial review of
an election committee decision to deny an applicant’s request for an appeal, concluding
that the applicant was entitled to a basic level of procedural fairness before
the election committee, such as the right to an unbiased tribunal, the right to
notice and an opportunity to make representations which was afforded by the
provision of an opportunity to make written submissions (Polson v Long Point
First Nation Committee, 2007 FC 983 at paras 41-47).
[22]
Similarly, the Federal Court of Appeal applied
the Baker factors in the context of an appeal from an election held
pursuant to a custom election code and determined that basic procedural
safeguards were required (Bruno v Samson Cree Nation, 2006 FCA 249):
[22] Applying the Baker factors,
I conclude that the Application Judge did not err in finding that the duty of
fairness required at a minimum that the Board provide Mr. Northwest with an
opportunity to make submissions. The Board should be granted significant
latitude to choose its own procedures; however, given the importance of the
decision to Mr. Northwest, basic procedural safeguards must be in place. This
does not mean that a full oral hearing was required, but simply that Mr.
Northwest should have been given the opportunity to respond to the Soosay
complaint, before the Board concluded that he was ineligible for Council under
section 4 of the Election Law. By not allowing Mr. Northwest to respond to the
Soosay complaint, the Board made its decision on an incomplete factual record.
In my view, the Judge correctly found that this constituted reversible error.
[23]
And, as stated by Justice Manson in Parenteau
in a similar context:
[49] It is well established that the
Applicants were entitled to due process and procedural fairness in being
dismissed from their positions as Councillors (Sparvier v. Cowessess Indian
Band No. 73, [1993] F.C.J. No. 446 (Fed. T.D.) at para 57; Felix 3, above,
at para 76; Orr v. Fort McKay First Nation, 2011 FC 37 (F.C.) at para
14). In this context, the Applicants were entitled to know the case against
them, and be given an opportunity to be heard (Duncan v. Behdzi Ahda First
Nation, 2003 FC 1385 (F.C.) at para 20; Desnomie v. Peepeekisis First
Nation, 2007 FC 426 (F.C.) at paras 33, 34).
[24]
In my view, the content of the duty of fairness
owed in this case required that the Applicant know the allegations against her,
be given an opportunity to be heard and to be provided with reasons for the
Community Panel’s decision. That content of the duty is also consistent with
the procedure contemplated by the Election Rules (see Rules 23.6, 23.7, 23.8,
23.9, 23.15).
[25]
The Applicant’s supporting affidavit states that
the Community Panel found on December 8, 2015 that she had breached her Oath of
Office “with me receiving a letter, attached as Exhibit
“A””, that stated:
On November 71 [sic], 2015 the
community panel has provided notice of the business that is being considered.
After investigating the Community Panel has removed Doris Johnny from office of
Band council and declare the position vacant. In accordance with the 2014
Secwepemc Election Rules.
[26]
Further, that she was in a serious car accident
and had an operation on her spine on November 18, 2015 with a lengthy recovery
period. She states that she had some contact with the Community Panel who
asked her questions but that she did not have an opportunity to address matters
raised by Joyce Kenoras at a time when she was present before the Community Panel.
Additionally, she has “now learned on June 24, 2016
that the Community Panel found that in relation to the complaint raised by
Joyce Kenoras, that on September 9, 2015 that I did not fully perform the
duties of office with dignity and respect and did not uphold the Adams Lake
Band Vision Statement.”
[27]
The Respondent filed an affidavit of Ms. Maryann
Yarama, the Chairperson of the Community Panel which made the decision. Ms.
Yarama states that on November 13, 2015 the Community Panel received the
November 10, 2015 Petition seeking the removal of the Applicant as Councillor.
Further, that the Petition, a copy of which is attached as Exhibit “A” of her
affidavit, set out the details of a series of events, including dates and
parties involved, that were alleged to constitute breaches of specific
provisions of the Oath of Office. Ms. Yarama deposes that she hand delivered
the Petition to the Applicant on November 14, 2015 and believes that she
provided another copy, at the Applicant’s request, on November 17, 2015.
[28]
Indeed, receipt of the Petition appears to have
been endorsed by hand by the Applicant as received on November 14 at 11:52 a.m.
as seen from a document found in the Certified Tribunal Record (“CTR”). Further,
a November 15-16, 2015 email chain between the Applicant and Ms. Yarama
and others indicates that Ms. Yarama provided “a copy”
to the Applicant by hand on November 14, 2015, the Applicant acknowledged
having previously received a copy but requested another as she had misplaced
the first pages and her children had scribbled on others.
[29]
Ms. Yarama stated in her affidavit that during
the 30 days from the receipt of the Petition to when a decision was required to
be made, the Community Panel conducted 12 meetings and 13 interviews of the 10
witnesses to the allegations. With respect to the September 9, 2015 incident, 6
witnesses were interviewed, including the Applicant. I note that the meeting
minutes were attached as exhibits to her affidavit. The minutes are detailed
and include descriptions of the interviews conducted.
[30]
Ms. Yarama states that on November 17, 2015, the
Community Panel met with the Applicant to discuss the process that would be
undertaken to decide the Petition and to give her an opportunity to respond to
the allegations, 1.5 hours were allocated for the Applicant to speak as well as
time for questions from the Community Panel. On December 1, 2015 the Community
Panel again met with the Applicant to give her another opportunity to address
the allegations in the Petition and to respond to questions at which time the
Applicant identified a witness to the September 9, 2015 incident, this person
was subsequently interviewed on December 7, 2015. Further, that on December 9,
2015 Ms. Yarama and another member of the Community Panel hand delivered the
decision to the Applicant at the Band Office. I note that a copy of the
decision attached to her affidavit as an exhibit has a hand written notation “Dec 9/15 - Hand delivered to Doris Johnny, Council & Joyce
Kenoras” initialed MY and signed by Hilda Jensen.
[31]
Ms. Yarama further deposed that on December 16,
2015 the Community Panel wrote to the Applicant advising her of her right to
apply for judicial review of the decision within 30 days of the decision, a copy
of that letter is attached as an exhibit to her affidavit. I note that the
letter also has a hand written notation “Left w Ren
Johnny Dec 17/15 @ 3:48 pm” initialed MY and signed Ren Johnny. That
letter also states that the Community Panel is bound by the Election Rules and
was protecting the confidential rights of the individuals interviewed in the
investigation and, therefore, it would not provide copies of the meeting
minutes as requested by the Applicant by letter received on December 14, 2015.
[32]
I find no reason to doubt and I accept the
affidavit evidence of Ms. Yarama and, given the process followed as described
above, I am satisfied that the Applicant was not denied procedural fairness.
She was given notice of the proceeding and a copy of the Petition which contained
the allegations against her. Despite the statement in her affidavit that she
suffered an accident, had surgery on her back on November 18, 2015 with a
lengthy recovery period, she attended two interviews with the Community Panel,
on November 17, 2015 and December 1, 2015, and thereby was provided
with two opportunities to respond to the allegations. The substance of the
Applicant’s complaint is that she was not afforded an opportunity to cross-examine
the Petitioner, however, I am not convinced that in these circumstances the
right of cross-examination formed a part of the content of the duty of fairness
owed and, the Applicant provides no authority in support of her position in
this regard.
[33]
The Applicant was also provided with written
reasons. While she submits that she was denied procedural fairness because the
reasons were not adequate, they explain that she had breached two provisions of
the Oath of Office and identified those provisions. The reasons also state
that the Community Panel’s investigations consisted of witness statements and
correspondence related to the incident, and, as a result of the investigation,
that the Community Panel determined that the Applicant did not fully
perform the duties of office with dignity and respect and did not uphold the
Adams Lake Indian Band Vision Statement. This was sufficient to allow the
Applicant to understand why the Community Panel decided as it did.
[34]
As to the evidence of the witness whose version
of events supported that of the Applicant, Ms. Yarama’s affidavit evidence was
that, subsequent to the Applicant identifying this witness at the December 1, 2015
interview, the Community Panel interviewed that witness on December 7, 2015.
This is confirmed by the minutes of that date found in the record. In total,
the Community Panel conducted interviews of 6 witnesses and, in my view, on
this point the Applicant is really taking issue with the weighing of the
evidence. It is not, however, the role of this Court to reweigh the evidence (Gadwa
at para 82; Dedam v Canada (Attorney General), 2012 FC 1073 at para 59; Khosa
at para 61).
[35]
Finally, although by letter of December 11, 2015
which was received by the Community Panel on December 14, 2015, the
Applicant requested copies of the meeting minutes held between November 11 and
December 9, 2015 and the Community Panel declined this request, they provided
their reasons for doing so. That is, the protection of the confidentiality
rights of individuals interviewed for the investigation. The Election Rules do
not contemplate the release of the Community Panel meeting minutes, but also do
not explicitly state that they are confidential. The Community Panel’s Terms
of Reference, Appendix E, Confidentiality, include that the Community Panel
shall swear an Oath of Office to always act in the best interests of the Band
in carrying out their duties. Further, that transcription of the proceedings
and decision of the Community Panel shall be kept for 6 years, stored in a
locker cabinet and only accessed by quorum of panel. In this regard, it is of
note that in her affidavit Ms. Yarama stated that during the November 17, 2015
meeting of the Community Panel with the Applicant, the Applicant herself raised
concerns about the recording of the interview. Ms. Yarama stated that for a
small community like Adams Lake that already suffers from some social tensions,
confidentiality of information provided by members is considered very
important.
[36]
In my view, deference is to be afforded to the
Community Panel’s choice of procedure to withhold the minutes in order to
protect the rights of community members who were interviewed (Baker at
para 27; Re Sound at paras 37-42). And, in any event, the request was
made only after the decision was rendered. On June 3, 2016 when the Applicant
filed the Notice of Application, including the Federal Courts Rules,
Rule 317 request for a CTR, the minutes were provided. Prior to this, by way
of the two interviews with the Community Panel, the Applicant was afforded the
opportunity to inquire, beyond the allegations as set out in the Petition, as
to the case to be met. That case was purely fact based and she had submitted
her version of the events of September 9, 2015. Further, the Applicant does
not submit what aspect of the case against her she was unaware of until she
received the minutes, other than her submission that she did not learn that the
Community Panel had found that she had not fully performed the duties of office
with dignity and respect and did not uphold the Vision Statement. However, I
have addressed this above and found that the decision was provided to her on
December 9, 2015 and included this finding of the Community Panel.
[37]
For these reasons I find that the Community Panel
did not breach its duty of procedural fairness.
Issue 2: Was the Community Panel’s decision reasonable?
Applicant’s Position
[38]
As to the reasonableness of the finding of fact
made by the Community Panel that her conduct was in breach of the Oath of
Office, the Applicant submits only that none of the material from the Community
Panel establishes the grounds for the breach of her Oath of Office. Further,
that the Community Panel did not provide reasons for its decision which was
perverse as they had the evidence from the witness supporting the Applicant’s
position. Even when the decision was provided by way of the record, no
explanation was given as to why that evidence was ignored.
[39]
The main thrust of the Applicant’s
reasonableness argument concerns the role of a councillor. The Applicant
asserts that no oath of office can be contrary to the role of a councillor
elected to democratically represent the voters who elected them and that
personal animosity does not disqualify band council from decision-making (Sayers
v Batchewana First Nation, 2013 FC 825 at para 53 (“Sayers”).
Further, that meetings on taxation matters may not always be operated in a calm
and dignified manner but that this is not a ground for removal from office and
does not breach the Oath of Office. Councillors are required to act in the
best interests of their constituents and for the band and will not be
personally liable for their actions unless they were fraudulent or grossly
negligent, councillors are also entitled to “qualified
privilege” (Prud’homme v Prud’homme, [2002] 4 S.C.R. 663 at paras 49-60
(“Prud’Homme”)). The Applicant submits that remarks made during the
September 9, 2015 meeting were not fraudulent or grossly negligent and that her
removal from office was contrary to her position as an elected representative,
improper and undemocratic.
Respondent’s Position
[40]
The Respondent submits that the Applicant is
incorrect in saying that the Community Panel did not provide her with
reasons for the decision. The reasons were found in the decision which was
hand delivered to her on December 9, 2015 and explained that there had been a
breach of her Oath of Office.
[41]
The Respondent submits that while the Applicant
claims the decision was undemocratic, neither the Election Rules or the Federal
Courts Act permit the decision to be reviewed on that basis. Further, that
the Applicant’s arguments made with respect to the civil liability of
councillors and qualified privilege are irrelevant to the application. The
September 9, 2015 meeting was not a council meeting to which qualified privilege
could apply and the Community Panel was not charged with determining if
the Applicant was liable for a civil action.
[42]
The Community Panel’s mandate arises from the
Election Rules, this is to enforce the Election Rules, including the Vision
Statement, and to provide oversight of the conduct of the chief and council.
This public interest mandate incorporates broad factors in the Community Panel’s
decision-making. Its interpretation of the requirements necessary to meet the
objectives of the Election Rules, the Vision Statement, the Oath of Office and
whether the Applicant’s actions of September 9, 2015 breached those
requirements are owed deference by this Court. It was reasonable to expect a
higher standard for a Councillor who takes the Oath of Office.
Analysis
[43]
I have already found above that the Applicant
was provided with copies of the Petition prior to the investigation commencing
and with the decision prior to obtaining the CTR in response to the Federal
Courts Rules, Rule 317 request and addressed the adequacy of the reasons.
I would add to this only that the minutes provided in the record include summaries
of the interviews of the Applicant, the Petitioner and others at the meeting
which describe the incident, there is no question that it occurred. In her
affidavit filed in support of this application for judicial review the
Applicant does not deny this or otherwise address the incident. Given this, it
was the role of the Community Panel to assess that information and determine if
it amounted to a breach of the Applicant’s Oath of Office.
[44]
It is not disputed that the Community Panel is
authorized to decide petitions seeking to remove a band councillor and Rule 9.2
of the Election Rules explicitly provides for this although the Applicant in
her submissions before me seemed to suggest that this was undemocratic.
[45]
I agree with the Respondent that the Applicant’s
submissions concerning democratic rights, the civil liability of councillors
and qualified privilege are not relevant to this application. The Applicant
refers to paragraph 53 of Sayers in support of the proposition that
personal animosity cannot disqualify band council from decision-making. Her
reasoning being, therefore, that the Community Panel could not remove her from
her decision-making role as a member of the Band Council as a result of
personal animosity.
[46]
I would note first that paragraph 53 of Sayers
forms part of a contextual analysis of an allegation of bias and the obligation
of councillors to adhere to the principles of procedural fairness. The issue
before the Community Panel was not one of whether the Applicant was biased or
had not treated the Petitioner in a procedurally fair manner; it was whether by
her behaviour she had breached her Oath of Office. Pursuant to Rules 24.1 and 23.14(b)
of the Election Rules, a band council member can be removed from office on that
basis by the Community Panel. This is not challenged by the Applicant other
than to say, in effect, that the Community Panel is somehow of a lesser status
of elected office than that of elected Band Council members and that the
role of the latter cannot be infringed upon by the Oath of Office as enforced
by the former.
[47]
As to Prud’homme, there the respondent,
who was at the time a municipal councillor, had tried unsuccessfully to
convince the other councillors to appeal a judgment that had quashed a by-law.
He then criticised publically, at a regular council meeting, the fact that no
public debate had been held as to whether the judgment should be appealed. The
appellants were offended by his statements which they felt included malicious
insinuations about them, making them out to be bad citizens. They brought an
action against the respondent in damages for interfering with their
reputations, honour and dignity. The Supreme Court of Canada found that,
overall, the respondent acted in good faith, with the aim of performing his
duties as an elected municipal official. While his comments were sometimes
harsh, they were made in the public interest and remained within the bounds of
his right of comment, opinion and expression, as a municipal officer about the
affairs of his municipality that were matters of public interest.
[48]
The Supreme Court of Canada addressed the
question of what rules of civil liability applied to the wrongful individual
act of an elected municipal official in Quebec. It describes the role of
councillors in the context of their dual role as representatives of the
municipality and their constituents. In that context the Supreme Court of
Canada stated in paragraph 21 that:
21 Generally speaking,
elected municipal officials are officials of the municipal corporation
(s. 47 of the Cities and Towns Act, R.S.Q., c. C-19, and s. 79 of the Municipal
Code of Québec, R.S.Q., c. C-27.1). In that
capacity, their rights and duties are those of a mandatary. As well, in
the course of their participation in the legislative or administrative
activities of the council, they are not personally liable for the council’s
acts, unless they acted fraudulently or with gross negligence amounting to
gross fault. Nor are they liable for the ultra
vires acts of the municipality, unless they acted maliciously or in bad
faith (Jean, supra, at p. 211; I.
MacF. Rogers, The Law of Canadian Municipal Corporations (2nd
ed. (loose-leaf)), at p. 214.16). However, in the case of the
collegial acts of the council, elected municipal officials are, as a rule,
personally liable for their wrongful individual acts.
[49]
It is difficult, however, to see how a finding
that municipal officers, in the course of their participation in the
legislative or administrative activities of the council, are not personally
liable for the council’s acts, unless they acted fraudulently or with gross
negligence amounting to gross fault, is relevant to the issue that was before
the Community Panel. Moreover, while the Supreme Court of Canada also noted
that elected municipal officers must promote both the subjective interests of
their constituents and safeguard the objective interests of the municipality
and, in that regard, their right or obligation to speak is an important aspect
of the performance of their duties of office (para 23), this was again in the
context of the limits of such speech in a defamation action. The discussion of
qualified privilege was in that same context:
49 Elected municipal officials do not
enjoy the parliamentary privilege enjoyed by members of the National Assembly
of Quebec or of the federal Parliament (R. E. Brown, The Law
of Defamation in Canada (2nd ed. (loose-leaf)), vol. 2, at pp. 12‑20
and 12-21; J. Hétu, Y. Duplessis and D. Pakenham, Droit municipal: principes
généraux et contentieux (1998),
at p. 177). The English and Canadian courts,
however, have held that words spoken at a meeting of a municipal council are
protected by qualified privilege (J. P. S. McLaren, “The Defamation Action
and Municipal Politics” (1980), 29 U.N.B.L.J. 123, at
pp. 134‑35). Accordingly, the fact that words spoken at a
meeting are defamatory does not, in itself, mean that a municipal councillor
will be liable therefor. In order to succeed in his or her action, the
plaintiff must prove malicious intent or intent to harm on the part of the
councillor (Brown, supra, at p. 13-4). The reason for
that qualified privilege was eloquently stated by Diplock L.J. in Horrocks
v. Lowe, [1975] A.C. 135 (H.L.), at p. 152…:
My Lords, what is said by members of
a local council at meetings of the council or of any of its committees is
spoken on a privileged occasion. The reason for the privilege is that
those who represent the local government electors should be able to speak
freely and frankly, boldly and bluntly, on any matter which they believe
affects the interests or welfare of the inhabitants. They may be swayed
by strong political prejudice, they may be obstinate and pig‑headed,
stupid and obtuse; but they were chosen by the electors to speak their minds on
matters of local concern and so long as they do so honestly they run no risk of
liability for defamation of those who are the subjects of their criticism.
[50]
Neither questions of civil liability for
comments made as a Band Council member or the defence of qualified privilege
have application in this matter.
[51]
The Community Panel was required to interpret
the Oath of Office and apply it to the September 9, 2015 incident. I note that
the Election Rules set out the Band’s Vision Statement and require that an
elected candidate shall swear the Oath of Office and shall not be permitted to
assume office until they have done so (Rules 22.1 and 22.3). The Oath of
Office is attached as Appendix A of the Election Rules. It includes that the
deponent will honestly, impartially, and fully perform the duties of Officers
with dignity and respect; will always consider the best interests of the Band
and uphold the Band’s Community Vision; will not engage in conduct determined
to be of a serious nature that removal from council will be deemed necessary;
and, the deponent will comply with the Community Panel’s decision for removal
from office and will promote unity.
[52]
In my view, the question of whether the
Applicant conducted herself with dignity and respect and upheld the Community
Vision is one that the Community Panel was uniquely able to assess. The
Community Panel had an understanding of Band society and dynamics that is not
available to this Court and, in my view, it was best positioned to determine if
the September 9, 2015 incident resulted in the breach of the Oath of
Office. This Court has previously recognized the expertise of band councils on
matters such as band custom and factual determinations and found that their decisions
are therefore owed deference (Crawler v Wesley First Nation, 2016 FC 385
at para 18; Shotclose v Stoney First Nation, 2011 FC 750 at para 58; Beardy
v Beardy, 2016 FC 383 at para 43). It is also trite law that deference is
to be afforded to a decision-maker with special expertise (Dunsmuir at
paras 54-55; Khosa at para 25).
[53]
When appearing before me the Applicant submitted
that her comments could be seen as merely an attempt at maintaining order at
the meeting, in my view it was open to the Community Panel not to reach
that conclusion. Similarly, that it was reasonably open to it to conclude, as
it did, that the Applicant had not conducted herself with dignity and respect
and did not uphold the Community Vision. As noted above, reasonableness is
concerned with the existence of justification, transparency and
intelligibility, and whether the decision falls within a range of possible,
acceptable outcomes. As I have concluded that it did, interference by this Court
with the decision is not warranted.
[54]
In these circumstances, I find that this
application must be dismissed.
Email this Content