Docket: T-2003-16
Citation:
2017 FC 156
Ottawa, Ontario, February 8, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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COUNCILLORS
GEORGINA JOHNNY, BRANDY JULES and RONALD JULES
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Applicants
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and
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ADAMS LAKE
INDIAN BAND
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicants seek judicial review of a
decision of the Community Panel of the Adams Lake Indian Band (the Panel),
dated October 22, 2016, removing them from elected office as Band Councillors
for breach of their Oath of Office. They claim that the process that led to the
Panel’s decision, which is comprised of three separate sets of reasons – one
for each Applicant - is plagued with procedural flaws and that the Panel’s
decision should, as result, be quashed.
II.
Background
[2]
The Applicants are members of the Adams Lake
Indian Band (the Band), a small First Nation community of approximately 800
members located near Chase in British Columbia. Brandy and Ronald Jules were
elected Councillors in February and July 2015, respectively. Georgina Johnny
was acclaimed as Councillor in January 2016. All three Applicants’ term as
Councillor end in February 2018.
[3]
Since December 1996, the Band’s Chief and
Council are elected in accordance with band custom. The current version of the
Band’s election rules are set out in the Adams Lake Secwepeme Election Rules
approved on June 19, 2014 (the Election Rules).
[4]
According to Part 22 of the Election Rules, a Band
member who is elected to the Band Council shall swear an Oath of Office. Part
24 of the Election Rules provides for the removal from office of a Band
Councillor on a number of grounds, including breach of the Oath of Office. The
authority to remove a Band Councillor from office is vested in the Panel, a
body created under Part 9 and Appendix E of the Election Rules. The Panel
consists of five (5) members appointed for a three-year term through an
election held at a General Band Meeting called for that specific purpose. The
current Panel members are Lynn Kenoras, Sandra Lund, Maryann Yarama, Hilda
Jensen and David Norquist.
[5]
According to sections 24.2 and 24.3 of the
Election Rules, removal proceedings are to be commenced by a petition filed
with the Panel and signed by ten (10) electors. The petition must be accompanied
by an affidavit setting out the facts substantiating the grounds for removal as
well as by a three hundred ($300.00) dollars non-refundable fee. Pursuant to
Appendix E of the Election Rules, the Panel must render its decision in writing
within 30 days of receipt of the Petition. A majority of the Panel constitutes quorum.
[6]
The petition at issue in the present matter (the
Petition) was filed with the Panel by Valerie Joan Mitchel, who is a member as
well as an employee of the Band, on September 26, 2016. The Petition,
which was served on the Applicants the same day, alleges that the Applicants
violated the Election Rules and breached their Oath of Office in the following
manner:
a)
With respect to Ronald Jules, by advocating for one
of his immediate family members to get a house and by participating in
discussions that had a direct effect on his immediate family without declaring
a conflict of interests;
b)
With respect to Georgina Johnny, by advocating
for her immediate family to receive money from the Band Council and by
approving the use of the Council’s travel budget for her brother to attend a tourism
workshop; and
c)
With respect to Brandy Jules, by directing the
decision for the release of the Band’s Executive Director, Lawrence Lewis, for
personal reasons having to do with her family.
[7]
Ms. Michel claims that these allegations of
misconduct amount to a breach of sections 2, 3 and/or 4 of the Oath of Office which
provide that Band Councillors shall:
a)
Honestly, impartially and fully perform the
duties of their office with dignity and respect;
b)
Always consider the bests interests of the Adams
Lake Indian Band; and
c)
Always uphold the [Adams Lake Indian Band]’s
Election Rules, Band policies and the Chief and Council Terms and Reference of
the Adams Lake Indian Band.
[8]
On October 22, 2016, the Panel, after having
held a number of meetings and interviews and considered a number of documents,
including Council meeting minutes, handed down its decision. Except for the
allegation that Ronald Jules had advocated for one of his immediate family
members to get a house, which was found to be unsubstantiated, the Panel held
that the Petition’s allegations of misconduct against each of the Applicants
had been established and amounted in each case to a breach of sections 2, 3 and
4 of the Oath of Office.
[9]
The Panel also considered a number of
allegations that were not particularized or specified in the Petition, as filed
on September 26, 2016. First, with respect to Brandy Jules, it considered but
dismissed, the allegation that she had hollered at an employee of the Band. However,
it was satisfied that Ms. Jules had participated in lateral violence towards
another member of the Band Council and had breached, as a result, her Oath of
Office. Also, it found on the basis of “additional
information” provided to it, that Ms. Jules had further breached her
Oath of Office by inquiring to the Band Administration Staff regarding a job
posting involving her immediate family as well as by participating in
discussions and advocating (and signing) a Band Council Resolution transitioning,
to the benefit of her family, all existing Security Staff to the Band’s Staff.
[10]
With respect to Ronald Jules, the Panel also
found on the basis of “additional information”
provided to it, that Mr. Jules had made a direct racial comment to a Band’s employee
and participated in lateral violence towards another member of the Band
Council, thereby breaching his Oath of Office. Finally, the Panel held, also on
the basis of “additional information” provided
to it, that Georgina Johnny had further breached her Oath of Office by
participating in discussions and advocating (and signing) a Band Council
Resolution transitioning, to the benefit of her immediate family, all existing
Security Staff to the Band’s Staff and by advocating for an immediate family
member to represent the Band at an event organised by the “Together Shuswap”, a First Nations’ regional
grouping.
[11]
Overall, the Panel concluded that the Applicants
had each breached sections 2, 3 and 4 of their Oath of Office, including, in
the case of all three Applicants, the Band’s Code of Conduct and Ethics Policy
and Financial Management By law, in the case of Brandy and Ronald Jules, the
Band’s Employment Guidelines, in the case of Brandy Jules, the Band’s Respectful
Work Place Policy and, finally, in the case of Ronald Jules, the Band’s Conflict
Resolution Policy.
[12]
As a result of these findings, the Panel removed
the Applicants from elected office as Band Councillors effective on October 23,
2016 for a duration of two election terms.
[13]
On October 26, 2016, following a Band meeting
held the day before, removal notices were sent to the Panel members. The
Applicants see this as evidence of the community’s disapproval of the way the
Panel handled and decided the Petition. The Respondent disputes the validity of
any resolutions arising out of that meeting which, it contends, was not a General
Band Meeting as claimed by the Applicants, but a community meeting. It urges the
Court to place no weight on this evidence.
[14]
The following day, the Chief resigned.
[15]
The present proceeding was filed with the Court
on November 21, 2016. The Applicants claim that there is a reasonable
apprehension of bias arising from the fact that some Panel members are Band
employees and that some others were otherwise in a conflict of interest situation.
They further claim that the Petition is null and void as it compounded three
petitions in one and failed to have the required number of signatures. Finally,
the Applicants contend that they were not provided a fair hearing as they were
not fully informed of the case to meet and not permitted to fully respond to
it.
[16]
By order of this Court issued on consent on
November 30, 2016, the Applicants, subject to certain limitations, were
restored to their position as Band Councillors pending the outcome of the
present proceeding and the by-election scheduled for the election of new
Councillors was cancelled.
[17]
In the same Court order, the present matter was expedited
and set down for hearing on January 20, 2017 in Vancouver.
III.
Issue and Standard of Review
[18]
The sole issue to be determined in this matter
is whether the Panel breached the duty of procedural fairness owed to
the Applicants.
[19]
The Applicants contend that issues raising
procedural fairness concerns are to be decided on a standard of correctness.
[20]
While the Respondent agrees that this is indeed
generally the case, it claims that the procedural choices made by the Panel are
owed deference and that the exact content of the duty of fairness owed to the
Applicants in the present case is highly contextual and cannot be separated
from the social context in which the impugned decisions were made. It further
submits that to the extent the interpretation or application of the Election
Rules by the Panel is engaged in resolving the present matter, then this
interpretation or application is to be reviewed on a standard of
reasonableness. On that last point, the Applicants disagree with the Respondent’s
position and claim, on the basis of this Court’s decision in Felix v
Sturgeon Lake First Nation, 2011 FC 1139 [Felix], that the
appropriate standard to be applied to such an issue is the correctness standard.
[21]
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; Mission Institution v
Khela, 2014 SCC 24 at para 79). As Justice Cecily Y. Strickland pointed out
in a recent decision involving the Panel and the Band (Johnny v Adams Lake
Indian Band, 2016 FC 1399, at para 9-10 [Johnny]), this standard has
been applied on a consistent basis by the Court 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 McCallum v Peter
Ballantyne Cree Nation, 2016 FC 1165 at para 19; Parenteau v Badger,
2016 FC 535 at para 36 [Parenteau]).
[22]
Justice Strickland also observed that it is now
firmly established that the interpretation and application of custom elections
acts by a council of elders, election officers or band council is reviewable on
the standard of reasonableness and held that there was no reason why this would
not equally apply to the role of the Panel (Johnny , at para 11).
[23]
I agree. In Felix, Justice Marie-Josée
Bédard held that no deference was owed to the decision maker’s interpretation
of the procedural provisions of the band’s election rules because of the
decision-maker’s lack of special expertise on such matters (Felix, at
paras 20-23). However, Felix must now be read in light of the Federal
Court of Appeal’s subsequent jurisprudence which makes it clear that the
standard of review applicable to the decisions of bodies such as the Panel
interpreting election acts is reasonableness (Johnson v Tait, 2015 FCA
247 [Johnson], at para 28; Orr v Fort McKay First Nation, 2012
FCA 269, at para 11 [Orr]; D’Or v St-Germain, 2014 FCA 28, at
para 5 [D’Or]). This is so because the interpretation of the bands’
election acts or rules must be informed by the customs upon which they are
based, a matter of which electoral bodies and Chief and Council are likely to
have a better understanding than the Court (D’Or, at para 6).
[24]
Reasonableness, as we know, is concerned with
the existence of justification, transparency and intelligibility, and whether
the decision falls within a range of possible, acceptable outcomes defensible
both on the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9, at
para 47).
[25]
However, as the Federal Court of Appeal pointed
out in Johnson and Orr, there may ultimately be little
appreciable difference between the reasonableness and correctness standards where
the decision-maker’s decision cannot be supported by the election acts or rules
or any other source of power as in such a case, the decision cannot be said to
be acceptable or defensible in law (Johnson, at para 28; Orr, at
para 12).
[26]
It is not disputed that the Panel is a “federal
board, commission or other tribunal” within the meaning of sections 2 and 18.1
of the Federal Courts Act, RSC 1985, c. F-7, and that it is subject, as
a result, to the Court’s supervisory power.
IV.
Analysis
A.
The Content of the Duty of Procedural Fairness
Owed to the Applicants
[27]
It is trite law now that the concept of procedural
fairness is eminently variable and that its content is to be decided in the
specific context and circumstances of each case (Knight v IndianHead School
Division No. 19, [1990] 1 S.C.R. 653, at 682; Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 21). It is
therefore correct to say, as the Respondent does, that the exact content of the
duty of fairness owed to the Applicants in the present case is highly
contextual.
[28]
This Court has, on a number of occasions, recognised
the importance of an autonomous process for electing band governments and held that
it should be reluctant, for that reason, to interfere with that process (Sparvier
v Cowessess Indian Band [1993] 3 FC 142, at para 57 [Sparvier];
Catholique v Band Council of Lutsel K’e First Nation, 2005 FC 1430, at
paras 53-55). However, although, as the Respondent points out, electoral
bodies such as the Panel should be granted significant latitude to choose their
own procedures, basic procedural safeguards must be in place when, as here, a
person is being removed from his/her position as Chief or Councillor (Bruno
v Samson Cree Nation, 2006 FCA 249, at para 22 [Samson Cree Nation];
Parenteau, at para 49).
[29]
This means that the Applicants were entitled to
know the case against them and be given an opportunity to make representations before
an unbiased decision-maker (Lakeside Colony of Hutterian Brethren v Hofer,
[1992] 3 S.C.R. 165, at pp. 169-170; Samson Cree Nation, at para 22; Parenteau,
at para 49). However, in such context, the right to make representations does not
go so far so as to require a full oral hearing (Samson Cree Nation, at
para 22).
B.
Reasonable Apprehension of Bias
[30]
The Applicants’ claim to a reasonable apprehension
of bias is two-fold. First, they contend that the three Panel members who are
also employees of the Band (Sandra Lund, Maryann Yarama, and David Norquist) are
in conflict of interests whenever the Panel, which is to be impartial, is
called upon to determine if Councillors should be removed because the Chief and
Councillors are their “bosses in their position working
for the Adams Indian Band”. They further contend that the present
situation is exacerbated by the fact the Petition arose in the context of an
employment grievance on the part of Ms. Michel, who is also an employee of the
Band.
[31]
Second, the Applicants claim that another Panel
member, Lynn Kenoras, is in a situation of conflict of interest as she is the
daughter of another Councillor, Norma Manuel who remains on Council and is, therefore,
associated to the Respondent. They say that although Ms. Kenoras declared a
conflict to the Panel and refrained from hearing the evidence provided by her
mother, she nonetheless put herself in a conflict of interest situation by signing
all three set of reasons for decision.
[32]
The most widely accepted wording for the
applicable test to determine whether there is a reasonable apprehension of bias
in a given case comes from the Supreme Court of Canada in Committee for
Justice v National Energy Board, [1978] 1 S.C.R. 369, at page 394:
“…[T]he apprehension of bias must be a
reasonable one held by reasonable and right minded persons, applying themselves
to the question and obtaining thereon the required information.... [That] test
is “what would an informed person, viewing the matter realistically and
practically — and having thought the matter through — conclude....” Would he
think that it is more likely than not that Mr. Crowe, whether consciously or
unconsciously, would not decide fairly.”
[33]
To put it another way, in order for a reasonable
apprehension of bias to be established, the person considering the alleged bias
must be reasonable and the apprehension of bias itself must also be reasonable
in the circumstances of the case (R v S (RD), [1997] 3 S.C.R. 484, at para
111).
[34]
However, in a context such as the present one,
the case law calls for a more nuanced approach to that test. In Lower Nicola
Indian Band v Joe, 2011 FC 1220 at para 45 [Lower Nicola Indian
Band] (upheld in Lower Nicola Indian Band v Joe, 2013 FCA 84), the
Court held that the test of reasonable apprehension of bias will not
necessarily be applied rigorously to a small First Nation community as this
would otherwise inevitably create difficulty in convening a decision making
body where familial or business relationships are not present. In that case,
the band had approximately 800 eligible voters. Here, as mentioned previously, the
Band is comprised of approximately 800 members.
[35]
In the earlier case of Sparvier, where
the band had 408 participating
electors, the Court set out at para 75, the rationale for a more lenient
approach in such context. Paragraph 75 reads as follows:
If a rigorous test for reasonable
apprehension of bias were applied, the membership of decision-making bodies
such as the Appeal Tribunal, in Bands of small populations, would constantly be
challenged on grounds of bias stemming from a connection that a member of the
decision-making body had with one or another of the potential candidates. Such
a rigorous application of principles relating to the apprehension of bias could
potentially lead to situations where the election process would be frustrated
under the weight of these assertions. Such procedural frustration could, as
stated by counsel for the respondents, be a danger to the process of autonomous
elections of band governments.
[36]
In applying the
test for reasonable apprehension of bias, this Court must therefore be mindful
of the context in which the Panel operates and of the fact such context “can and should include judicial respect for
relevant custom” (Samson
Cree Nation, at para 20).
[37]
Even though the Court came to the conclusion
that there was a reasonable apprehension of bias in Lower Nicola Band,
such conclusion was warranted by the particular circumstances of that case, which
can readily be distinguished from those of the present case. Indeed, in Lower
Nicola Indian Band, one of the Elders having to rule on the petition
regarding the impeachment of three elected Councillors was the mother of one of
the unsuccessful Councillors who had brought the petition and several other
Elders who sat on the decision-making body had signed the petition. Thus, the
apprehension of bias was flagrant.
[38]
Here, as indicated previously, the Applicants’
main contention is that Panel members who are also Band employees are in an
immediate conflict of interests’ situation whenever the Panel is seized of a
petition seeking the removal of Chief or Councillors because of the particular
nature of the relationship between the two groups. They add that as Band
employees, they have a duty, according to the Band’s Code of Conduct and Ethics
Policy, to avoid “any situation in which there is, or
may appear to be, a potential conflict which could appear to interfere with the
employee[s] judgment in making decisions in the best interests of Adams Lake
Indian Band” (Respondent Record, vol. 1, at p. 70-71). According to the
Applicants, this duty reinforces the need for Band employees on the Panel to
refrain from hearing a petition for removal of Chief or Councillors so as to
avoid any reasonable apprehension of bias.
[39]
I disagree with that approach. The conflict of
interests provisions of the Band’s Code of Conduct and Ethics Policy to which
the Applicants refer have to do with the Band employees’ work and dealings as
employees of the Band, not as members of the Panel. The issue here is rather whether
the fact that these three employees, in their capacity of Panel members, have heard
the Petition, which involved the faith of the Applicants as Band Councillors,
raises a reasonable apprehension of bias. In my view, in light of the context in which the Panel operates, it
does not.
[40]
According to the Panel’s enabling customary
instrument, no restriction is placed on Band employees or on those related to
the Band Council from being elected to the Panel while such restriction exists
for the Chief and Councillors or for a candidate in an election (Election
Rules, Appendix E, section 2(b)). Also, not being an employee of
the Band is not, pursuant that instrument, listed as an eligibility criterion
for sitting on the Panel. Therefore, it is reasonable to assume that when the
Band adopted the Election Rules in 2014, the consensus within the Community was
that Band employees were eligible to sit on the Panel subject only to the
restrictions expressly set out in the Election Rules.
[41]
The Adams Lake First Nation community is a small
community. Therefore, it is not inconceivable, as contended by the Respondent,
that everyone knows each other and that when these three Panel members were
elected to the Panel in 2014, the members of the Community who voted would have
known that these persons were Band employees as they would have known that Ms.
Keronas is the daughter of Councillor Norma Manual. I agree with the Respondent
that the customary-based Election Rules imply a potential for some form of
relationship existing between the Panel members and Chief and Council or for
some prior knowledge of a matter and tolerate appearances of bias which, in
other contexts and with a more rigorous approach to the test for a reasonable
apprehension of bias, might be disqualifying. This is true of the relationship
existing between Panel members who are Band employees and Council or between
Panel members related to Council members and Council. So long as they do not
give rise to an actual conflict of interest in a given case, the mere fact that
these relationships exist should not be sufficient to raise, in this particular
context, a reasonable apprehension of bias.
[42]
It is worth noting in this respect that Band employees
are governed by contracts between the employee and the Band, not any individual
Band Councillors, and that routine employment matters are handled by the Band
Manager, not Band Councillors. The Band Council only intervenes on matters of
termination and remuneration (Respondent Record, Affidavit of George Baily,
vol. 2, at p. 510, para 14). In other words, there is some distance between the
Band employees and the Chief and Councillors when it comes to defining their so-called
employment relationship. This is part of the context that must inform a bias
analysis in the present case.
[43]
Another important consideration in this analysis
is that one of the two main functions the Panel is entrusted with is to provide
oversight of Chief and Council. The approach advocated by the Applicants would,
de facto, deprive the current Panel, or any future Panel having as
members Band employees, of its ability to play that role. With the risk that
this poses to its election
process and oversight mechanism of elected Chief and Council, this can
hardly be what the Band had in mind when it adopted the Election Rules. Borrowing
from Sparvier, if that approach would be allowed to stand, this
important oversight function “would be frustrated under
the weight of [bias] assertions” with the risk of constituting “a danger
to the process of autonomous elections of band governments” (Sparvier, para 75).
[44]
It may be that allowing Band employees or
persons related to Council members to sit on the Panel is not optimal in terms
of potential bias but this is a matter for the Band to address if and when, in
its opinion, there is a need to do so.
[45]
Again, the situation in the present case is
different from the one encountered in Lower Nicola Indian Band. Here,
there is no evidence that Ms. Michel’s employment grievance was in any way
linked to the issues set out in the Petition which were about undue influence
favoring family members and lateral violence. There is no evidence that the
Panel members who are Band employees were predisposed to grant the Petition.
There no evidence either of any Panel member actually placing himself or
herself in a conflict of interests situation.
[46]
The record shows that Ms. Keronas, the daughter
of Councillor Norma Manual, declared a conflict relating to the evidence of her
mother regarding the allegations made against the Applicants. The evidence
before me is that Ms. Keronas left the Panel’s meetings whenever evidence from
her mother was received by the Panel and whenever the Panel deliberated
on that evidence. The evidence is also that Ms. Keronas did not vote on matters
relating to her conflict.
[47]
Therefore, the fact that she signed the three
impugned set of reasons has to be considered in light of that evidence and is
therefore not indicative that, by doing so, she put herself in a situation of
conflict of interests. It would probably have been preferable to find in these
reasons some mentions of the aspects of the decision on which Ms. Keronas did,
or did not, vote. However, having considered the record as a whole and being
mindful that the Panel members are laypersons, I find that this is not fatal to
these decisions. I note that Ms. Keronas’ mother neither introduced nor signed
the Petition and was not involved in any way, shape or form, as Councillor or
in any other capacity, in the decision-making process leading to the removal of
the Applicants. She was not either the subject of the Petition. She was a
witness on the Panel’s list.
[48]
The Respondent points to the fact that Maryann
Yarama, who is the Manager of Maintenance and Housing for the Band, also
declared a conflict in connection with the allegations made against the
Applicants regarding their conduct with respect to the Band’s security
contracts. As was the case for Ms. Kenoras, Ms. Yarama, according to the
record, left the Panel meetings whenever evidence relevant to her potential conflict
was received and whenever the Panel discussed and deliberated on these
allegations. She also refrained from voting on these matters.
[49]
Contrary to Ms. Kenoras’s situation, the Applicants
did not raised Ms. Yarama’s declared conflict as an issue before the Panel or in
their written submissions to the Court. It is only at the hearing of this
judicial review application that the matter was brought up. That being said, I
am of the view that Ms. Yamara, as did Ms. Kenoras, took steps to avoid placing
herself, and the Panel, in a situation of actual or apparent conflict of
interests.
[50]
In sum, having regard to all the circumstances
of this case, including the context in which the Panel operates, and being
mindful of this Court’s more lenient approach to bias’s issues raised in the
context of decisions made by decisions-makers holding their authority from customary
band election codes and of its general reluctance to interfere with such
decisions in order to preserve, as much as feasibly possible, First Nations’ autonomy
in this respect, I find that the Applicants have failed to establish that the
process that led to the impugned decision raises a reasonable apprehension of
bias.
C.
The Validity of the Petition
[51]
The Applicants contend that the Petition is null
and void as, contrary to the Election Rules, it compounds three petitions in
one and fails to have the required number of signatures. This argument cannot
succeed.
[52]
This argument engages the application of section
24.2 of the Election Rules which provides that “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”. First, I find it is reasonable to read that
provision as not requiring 10 signatures in addition to the signature of the
person actually bringing the petition. It can reasonably be read, in my view, to
mean that in order to be valid, a petition must be signed by ten (10) persons having
the status of “Elector” within the meaning of
the Election Rules at the date the petition is filed, irrespective of the fact
the petition is brought forward at the initiative of a single individual.
[53]
Second, the argument that Ms. Michel had to file
one petition per Applicant and pay the corresponding $300.00 fee for each of
the petitions is, in my view, overly formalistic. As the Respondent points out,
paragraph 18.1(5) of the Federal Courts Act, RSC, 1985, c F-7, allows
the Court not to grant relief where judicial review is grounded in technical
irregularities or form defects and where no substantial wrong or
miscarriage of justice has resulted from it.
[54]
Here, there is no evidence that such wrong or
miscarriage of justice has occurred from the fact the Petition was brought
against the three Applicants collectively as opposed to individually. The
alleged violations against each of the three Applicants were set out in the
Petition and the Petition was hand-delivered to each of them on the same day it
was filed with the Panel, that is on September 26, 2016. At that point, the
Applicants knew the case they had to meet.
[55]
At a meeting held on that day, the Panel
considered whether this was a proper way to proceed and concluded that it was
(Responded Record, vol. 1, at p. 235). I see no reason to interfere with this finding
in the circumstances of this case.
D.
The Right to be heard
[56]
As indicated at the outset of my analysis, the
Applicants were entitled to know the case against them and to make
representations to the Panel. However, they were not entitled to a full oral
hearing (Samson Cree Nation, at para 22).
[57]
The Applicants contend that they were not
provided a fair hearing as they were not fully informed of the case to meet and
not permitted to fully respond to it. In particular, they claim that the majority
of the Panel’s findings were made on grounds that were not raised in the
Petition and on information that was not communicated to them, including the
evidence given by the persons interviewed by the Panel.
[58]
A review of the entire record does not support
the Applicants’ contention. The evidence points rather to the fact that despite
being invited to do so on a number of occasions, the Applicants have refused to
participate in the process in a meaningful manner.
[59]
There is no doubt that the content of the
Petition, as filed on September 26, 2016, has somewhat evolved. As I indicated
at paragraphs 9 and 10 of these Reasons, some of the allegations set out in the
Petition were particularized on the basis of additional information filed by
Ms. Michel and some new allegations were considered on the basis the evidence
collected by the Panel. These particularized or new allegations are:
a)
In the case of Brandy Jules, that she had (i) hollered
at an employee of the Band, (ii) participated in lateral violence towards
another member of the Band Council and (iii) inquired to the Band
Administration Staff regarding a job posting involving her immediate family as
well as participated in discussions and advocating (and signing) a Band Council
Resolution transitioning, to the benefit of her family, all existing Security
Staff to the Band’s Staff;
b)
In the case of Ronald Jules, that he had (i)
made a direct racial comment to a Band’s employee and (ii) participated in
lateral violence towards another member of the Band Council; and
c)
In the case of Georgina Johnny, that she had (i)
participated in discussions and advocated (and signed) a Band Council
Resolution transitioning, to the benefit of her immediate family, all existing
Security Staff to the Band’s Staff and (ii) advocated for an immediate family
member to represent the Band at the “Together Shuswap”
event.
[60]
The issue here is not whether the Petition could
be particularized or expanded the way it was but whether the Applicants were
taken by surprise and deprived, as a result, of the right to know the case
against them and to respond it.
[61]
The record shows that the Petition was served on
the Applicants on September 26, 2016 and that on September 28, 2016, the Applicants
informed the Panel that they each refused to accept removal of office and
denied all allegations made in the Petition (Respondent Record, vol. 1. at
p. 245-248). It is clear, therefore, that on September 28, 2016, the Applicants
knew the case against them, as set out in the Petition filed on September 26,
2016.
[62]
On September 29, 2016, the Panel issued a notice
informing the Band’s electors that the Petition had been received, inviting
them to make submissions and indicating that the Panel would issue a written
decision within 30 days of the receipt of the Petition, as required to do so by
section 7(b) of Appendix E of the Election Rules.
[63]
According to the Panel’s standard procedure,
each Applicant was to be provided with a two-hour time-period to make submissions
which would be followed by interviews where the Applicants could answer
questions about the allegations made against them, including questions about
any new information collected by the Panel in the course of its investigation
(Respondent Record, vol. 1, Affidavit of David Nordquist, at p. 3, para 17).
[64]
The Applicants were first scheduled to appear
before the Panel on October 3, 2016, in the case of Ronald Jules, and October
4, 2016, in the case of Georgina Johnny and Brandy Jules. However, all three
requested more time to seek legal advice. Georgina Johnny did appear before the
Panel at her scheduled interview but she did not make any substantive
submissions (Respondent Record, vol. 1, Affidavit of David Nordquist, at p. 3,
para 22). The Panel accepted to reschedule the Applicants’ interviews.
[65]
On October 3, 2016, the Panel interviewed Ms.
Michel. On that occasion, Ms. Michel filed with the Panel a package of
additional information consisting of Band Council meeting minutes, various Band
Policies and further details of the allegations set out in the Petition
(Respondent Record, vol. 1, at p. 144-230). This package of additional
information was hand-delivered to the Applicants on October 4, 2016 (Respondent
Record, vol. 1, at p. 258).
[66]
On October 11, 2016, the Panel sent a notice to
Ronald Jules advising him that an interview held in the course of the
investigation of the Petition had disclosed verbal abuse on his part and that
this matter would be investigated further by the Panel.
[67]
On October 12, 2016, the Applicants requested to
meet with the Panel on October 14, 2016. The meeting was scheduled
for October 15, 2016. At that meeting, the Applicants each brought a letter of
identical content dated October 11, 2016 (Respondent Record, vol.1, at p.
395-396), requesting the dismissal of the Petition on the basis that:
a)
It was improperly filed as it compounded three
petitions in one and lacked the required number of signatures and fee;
b)
The Panel was the wrong venue as the Petition,
being initiated by a Band employee, should be dealt with under Grievance
Procedure of the Band’s Employment Guidelines;
c)
The three Panel members who were Band employees
were in a conflict of interests situation;
d)
Ms Kenoras, being the daughter of another Band
Councillor, was also in a conflict of interests situation;
e)
The Petition should not proceed as there was a
pending litigation before the Federal Court in the matter of Councillor
Doris Johnny v Adams Lake Indian Band;
f)
Ms. Yamara was also in a conflict of interest
situation as she had a pending employee complaint against a Band member that
she asked the Council to deal with; and
g)
The “further
submissions” served as part of the Petition, including the additional
information filed by Ms. Michel, could not be considered as they were filed and
served after the filing of the “Original Complaint”.
[68]
The letter was read to the Panel by Ronald Jules
who then asked the Panel to rule on the matters raised therein. He also
indicated to the Panel that he and the other two Applicants had no further comments
and would not be answering any questions at this time (Respondent Record, vol.
1, at p. 381). The Panel indicated that the Applicants would receive a response
in writing once the Panel has had a chance to review the letter.
[69]
On October 16, 2016, the Panel responded to the
Applicants’ letter, indicating that the Petition met all the requirements of
the Election Rules and that it would therefore continue to be processed. The
Panel also indicated it had the authority “to allow for
additional information from a petitioner or others under s 23.5(b) and (d),
23.6(f) and (g)”. It further reminded the Applicants that as per section
23.6 (e) of the Election Rules, no proceedings before the Panel “shall be invalid due to a party not being available to make
a presentation to the Community Panel”. The Panel concluded the letter
by noting that the Applicants had already been provided with the opportunity to
meet the Panel on two occasions (October 4 and 15, 2016) and by informing them
that they were being offered a final opportunity to meet with the Panel on
October 21, 2016 (Respondent Record, vol. 2, at p. 427).
[70]
On October 21, 2016, only Georgina Johnny
attended the re-scheduled interviews. Ronald Jules and Brandy Jules did not
(Respondent Record, vol. 2, at p. 435). Ms. Johnny provided the Panel on that
occasion with written submissions and supporting documents (Respondent Record,
vol. 2, at p. 438 and 452). However, she declined to answer the Panel’s
questions. Her appearance before the Panel that day lasted a total of 8 minutes
according to the Minutes of the Panel’s meeting (Respondent Record, vol. 2, at
p. 438).
[71]
As indicated at the outset of these Reasons, the
Panel reached a decision on October 22, 2016 and issued three
separate sets of Reasons in support of its finding that the Applicants had
breached their Oath of Office and were, as a result, to be removed from office.
[72]
In my view, the written submissions and
supporting documentation filed with the Panel by Ms. Johnny on October 21,
2016, evidenced the fact that this Applicant was, at that date, clearly aware
of the substance of the allegations that formed the basis of the Panel’s
decision to remove her from office and that she was in a position to make
representations in a meaningful way. She could have been in a position to
respond more fully to these allegations if only she would have accepted to sit
down with the Panel and respond to its questions, something she refused to do,
as did the other two applicants, throughout the whole process.
[73]
As there is no affidavits from Ronald and Brandy
Jules on record, I can only assume, since all three Applicants were served with
the exact same materials and had, up to that point, a common approach to the
proceedings before the Panel, that on October 21, 2016, they both knew, as Ms.
Johnny did, the substance of the allegations that formed the basis of the
Panel’s decision to remove them from office and that they too were in a
position to respond to them. The onus was on them to show that their situation
was different than that of Ms. Johnny. There is no such evidence on file. In
any event, I am satisfied that except for the allegation of verbal abuse that
was notified to Ronald Jules on October 11, 2016, the substance of these
allegations transpires from the Petition and the additional materials that was
served on the Applicants on October 4, 2016.
[74]
Therefore, I am unable to conclude that the
Applicants were not provided with adequate notice of the case to meet or with
the opportunity to make representations on the substance of the allegations
against them. As the record shows, they were provided with such opportunity on
more than one occasion. In a procedural fairness analysis, it is no excuse not
to show up or refuse to participate in a meaningful way to a hearing when the
opportunity to do so was provided even where the person concerned has expressed
some reservations about the process at hand. The Applicants’ main – and sole – objective,
particularly when it comes to Brandy and Ronald Jules, appears to have been to
derail the process before the Panel and avoid at all costs having to address
the substance of the allegations against them. In my view, this is fatal to
their claim that there were not provided with an opportunity to fully
participate in the process before the Panel.
[75]
The Applicants complaint that they were
not given access to the evidence provided by the persons interviewed by the
Panel. In Johnny, Justice Strickland held that it was open to the Panel,
given the deference to be afforded to its choice of procedure, to withhold the
minutes of its meetings in order to protect the rights to confidentiality of
community members who were interviewed (Johnny, at para 36). According
to the evidence on record, the confidentiality of the information provided to
the Panel by Band members is important in order to reduce the community
tensions from which the Adams Lake First Nation community, a small community,
already suffers (Respondent Record, vol. 1, Affidavit of David Nordquist, at p.
2, para 8).
[76]
The evidence also shows that according to the
Panel’s standard procedures, the Applicants would have been provided with an
opportunity to know and respond to any new information the Panel received
during its investigation had the Applicants not adopted the approach of
refusing to hold an interview with the Panel and answer its questions (Respondent
Record, vol. 1, Affidavit of David Nordquist, at p. 3, para 18). In any event, there
is no evidence on record that such a request was ever made by the Applicants. In
these circumstances, I see not merit to that argument.
[77]
There is no merit either to the Applicants’
contention that the allegations the Panel was authorised to consider in this
case were only those relating to breach of the Oath of Office, not those related
to violations of Band policies such as the Code of Conduct and Ethics Policy. As
counsel for the Respondent pointed out at the hearing, the Oath of Office taken
by the Applicants provides that Councillors “shall [...]
always uphold the ALIB Election Rules, Band policies and the Chief and Council
Terms and Reference of the Adams Lake Indian Band”. It was therefore
open to the Panel to consider these alleged violations as part of the Petition
it had to investigate and decide.
[78]
Finally, I agree that no weight should be placed
on the meeting that was held on October 25, 2016 and what came out of it. As
the Respondent points out, there are no mechanisms in the Election Rules providing
for a decision of the Panel to be reviewed, quashed or otherwise reversed on
grounds of procedural fairness, or any other ground for that matter, by Band
members. In other words, there is no alternate legal remedy to judicial review
in this respect. For the purposes of this judicial review application, this “evidence” has therefore no bearing. In any event, I
note that the exact nature of that meeting and of the resolutions that
came out of it is highly in doubt. However, given my previous finding, I do not
need to determine this issue.
[79]
In sum, I am satisfied, considering all the circumstances
of this case, that the Applicants were provided with sufficient notice of the
allegations against them and given an opportunity to respond to them before an
unbiased decision-maker.
[80]
The judicial review application will therefore
be dismissed. Given that the Applicants are on the losing end of this
proceeding, costs are awarded to the Respondent.
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