Date: 20170209
Docket: T-615-16
Citation:
2017 FC 163
Ottawa, Ontario, February 9, 2017
PRESENT: The
Honourable Madam Justice McVeigh
|
BETWEEN:
|
|
DARWIN HAMELIN,
KEVIN HAMELIN AND WILMA GOODSWIMMER
|
|
Applicants
|
|
And
|
|
STURGEON LAKE
CREE NATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Darwin Hamelin, Kevin Hamelin and Wilma
Goodswimmer [the Applicants] challenge decisions by the Sturgeon Lake Cree
Nation [SLCN] Election Appeal Committee [Appeal Committee]. Each of the
Applicants had appealed to the Appeal Committee regarding the Band election of
March 23, 2016 [the election], and were not successful.
[2]
The Sturgeon Lake Cree Nation is a “Band” as
defined by the Indian Act, RSC 1985, c I-5 [Indian Act]. Sturgeon
Lake Cree Nation is a Treaty 8 nation, located in Northwestern Alberta, approximately
350 km from Edmonton. The Band’s elections are governed under the Customary
Election Regulations of Sturgeon Lake Cree Nation [election regulations].
[3]
On February 2, 2016, SLCN Chief and Council
appointed a non-Band member, Robert Hall as electoral officer for the election.
On March 9, 2016, Robert Hall held a nomination meeting at the SLCN community
hall for the positions of Chief and Councillor. Under the election regulations,
nominations are only accepted at a designated nomination meeting (s. 6.6(a)).
[4]
According to section 6.4(a) of the election
regulations, eligibility of candidates for the positions of Chief or Councillor
require:
i) that he/she is at least eighteen (18) years of age by Election
Day;
ii) that he/she continuously resided on the Sturgeon Lake Reserve
for at least twelve (12) months prior to the date of nomination; and
iii) that if he/she owes money to the Band, including rent, a
repayment plan has been set up three months prior to the Election Day and
payments have been maintained continuously.
[5]
Of the eighteen nominations received at the
nomination meeting, Robert Hall refused two nominees as ineligible due to
violations of the election regulations. Kevin Hamelin was refused because
Robert Hall believed that at all pertinent times he owed SLCN money. Kevin
Hamelin, along with Darwin Hamelin, had previously been elected Council members.
[6]
On March 10, 2016, Kevin Hamelin wrote Robert
Hall expressing his desire to appeal the decision to refuse his nomination. Robert
Hall advised him by email that “After reflection upon your representations, my
decision to disqualify and not to accept your nomination stands.” Robert Hall
then informed Kevin Hamelin that an appeal should be sent to him in writing
within 14 days after the election as per section 12.2(b) of the election
regulations.
[7]
The Appeal Committee was selected on March 10,
2016, by Chief and Council pursuant to section 12.4 of the election regulations.
[8]
The SLCN election was held on March 23, 2016.
Jeannine Calliou and Susan Wale were elected to Council along with four other
candidates. Darwin Hamelin received four votes less than the last successful
candidate. Robert Hall determined there would be no recount.
[9]
Kevin Hamelin filed an appeal on April 5, 2016,
that was dated March 30, 2016. He appealed his ineligibility as well as the
failure of other nominees to meet residency requirements amongst other
concerns.
[10]
Additional appeals were filed by Darwin Hamelin,
Wilma Goodswimmer, and one other person not relevant to these proceedings. Darwin
Hamelin and Wilma Goodswimmer appealed multiple alleged voting irregularities. As
well they alleged that Jeannine Calliou and Susan Wale were not eligible
candidates in the election as they did not continuously reside on the Sturgeon Lake
Reserve for at least twelve months prior to the date of nomination. Each
candidate had scrutineers present at the election, one of whom (Denise
Chalifoux) raised objections the day after the election in a letter to Robert
Hall.
[11]
On the same day he filed the appeal (April 5,
2016), Kevin Hamelin was informed that Robert Hall had determined that his
appeal would not be heard by the Appeal Committee. He contacted Robert Hall to
find out why and a heated discussion took place. Robert Hall indicates he had several
calls and emails from Kevin Hamelin leading up to the appeal hearing. As a
result of a particularly contentious telephone call, Robert Hall brought a
complaint to the RCMP.
[12]
A later call was made to Robert Hall by Kevin
Hamelin and Robert Hall was informed that the call was on speaker phone with
witnesses present as was the case with all of their conversations. Kevin
Hamelin’s affidavit says the tone of that call changed after his disclosure
that the call could be heard and Robert Hall even invited Kevin Hamelin to
attend the appeal hearing but as an observer only.
[13]
The Appeal Committee under the direction of
Robert Hall met by telephone conference on April 8, 2016, to consider the
notices of appeal that had been filed. At the conclusion of the meeting, the
Appeal Committee decided that only the eligibility of Jeannine Calliou and
Susan Wale would be considered at an appeal hearing. Robert Hall told the
committee that Kevin Hamelin’s appeal would not be heard on any of the issues
he raised nor would any of the other issues raised by the other appellants.
[14]
An appeal hearing was set and duly convened on
April 12, 2016, in Edmonton. Approximately 20 Band members as well as committee
members and legal counsel attended the appeal hearing. Before the appeal hearing,
an agenda was circulated with the hearing procedure set out and Robert Hall
acted as chairman. Robert Hall indicated there were no objections to the agenda
as circulated nor were any written submissions presented.
[15]
Darwin Hamelin, Wilma Goodswimmer and a third
party were each afforded 15 minutes to speak. Replies by Susan Wale and
Jeannine Calliou were also allowed 15 minutes each. Two other interested
parties gave advance notice of their intent to speak and were provided time but
failed to show. Robert Hall’s affidavit evidence is that the Appeal Committee
voted by secret ballot separately on each appeal after some discussion. The
result was that each of the appeals was refused by majority vote and the
results posted at the Band office on April 15, 2016, and sent to the
appellants.
[16]
The Applicants’ issues revolve around alleged breaches
of procedural fairness of the Appeal Committee including an allegation of Robert
Hall’s bias or an apprehension of bias.
[17]
In this application there are many facts and
issues that are raised that are important to the social fabric of the Band
members but are not at the core of what needs to be determined. The issues I
will address are the allegation that appeals did not go before the Appeal
Committee, the procedural fairness of holding the appeal hearing in Edmonton,
and the alleged bias surrounding Kevin Hamelin’s appeal.
II.
The Law
[18]
Under Part 5 of the SLCN election regulations,
an electoral officer is appointed by Chief and Council by Band Council
Resolution [BCR]. The electoral officer’s qualifications, term and remuneration
are contained in sections 5.1-5.4 of the election regulations with an outline
of duties in schedule A (attached as Appendix A to this decision). The
electoral officer can be a member of the Band but it is not a requirement. For
this election the Band hired a non-Band member – Robert Hall – and his team to
conduct the election of Chief and Council pursuant to the election regulations.
The electoral officer is not involved in the selection of the Appeal Committee
but they chair appeal meetings and have a vote.
[19]
Section 12 of the election regulations addresses
election appeals. Section 12.1 (reproduced below) sets out the grounds for an
appeal while 12.2 and 12.3 address appeal notification requirements. The Appeal
Committee itself is governed by 12.4 (reproduced below) with 12.5, 12.6, and 12.7
governing meetings of the Appeal Committee, notice of the appeal meeting, and
submissions to the committee respectively. The final two sections (12.8 and
12.9) address decisions of the committee and notification of the decision.
[20]
Section 12 of the election regulations under the
heading “Election Appeals” states:
12.1 Grounds for Appeal of Election
Within fourteen (14) days of and including
the Election Day, or in the event a Councillor or Chief is elected by
acclamation, with fourteen (14) consecutive days of and including the day of
the Nomination Meeting, any Elector may appeal the results of an Election,
By-Election or Run-off Election if, on reasonable and probable grounds, they
believe:
a) An error was made in the interpretation or application of the Regulations
materially and directly affecting the conduct and outcome of the Nomination
Meeting, Election, By-Election or Run-Off Election;
b) A Candidate did not meet the eligibility requirements set forth
in section 6.4 and 6.6 of these Regulations;
c) A Candidate was guilty of promoting or aiding corrupt Election
practises including, but not limited to, bribery, threats and intimidation of
Candidates, Electors, the Electoral Officer or Polling Clerk;
d) A person voted who was not eligible to vote; or
e) Any other circumstance or event materially and directly
affected the conduct and outcome of the Nomination Meeting, Election,
By-Election or Run-Off Election.
…
12.4 Election Appeal Committee
(“Committee”)
The Election Appeal Committee:
a) Shall
consist of:
i) Two (2) Elders from the First Nation;
ii) Two (2) Electors thirty (30) years of age or older but under
the age of fifty five (55); and
iii) Two (2) Electors eighteen (18) years of age or older but under
the age of thirty (30);
b) Members shall not be part of the immediate family of the person
or persons who are the subject of the appeal or who are bringing the appeal or
anyone who may be in a conflict of interest, as determined by the remaining
members of the committee;
c) Members who have not been disqualified pursuant to
section 12.4(b) shall be responsible for replacing any member who have
been disqualified pursuant to section 12.4(b);
III.
Analysis
[21]
The standard of review for procedural fairness
is correctness while the application of the election regulations of the
Sturgeon Lake Cree Nation attracts a reasonableness review (Gladwa v Kehewin
First Nation, 2016 FC 597 at para 17; Orr v Peerless Trout First Nation,
2015 FC 1053 at para 44; Dunsmuir v New Brunswick, 2008 SCC 9 at paras
47, 57 & 62).
Applicants’ Arguments
[22]
The Applicants allege that Robert Hall was
biased and did not act in a fair and equitable way. Specifically, the
Applicants argue the following:
a)
That Robert Hall was biased because he decided
the appeal of his own decision;
b)
That Robert Hall made decisions alone and
without discussion with the Appeal Committee members. He also intimidated and
dictated to committee members by describing the financial implications of
proceeding any other way than as he wished;
c)
That Robert Hall acted outside the power given
to him in the election regulations by unilaterally deciding which appeals would
be heard by the Appeal Committee;
d)
That with respect to Kevin Hamelin, the decision
became personal and he was not accorded the same procedural fairness as the other
appellants;
e)
That having the Appeal Committee sit in Edmonton
(some 350 km from Sturgeon Lake Cree Nation) made it unfair as many members
could not attend or participate.
[23]
Robert Hall filed a lengthy affidavit in these
proceedings. He was not cross-examined on the affidavit. Some of his evidence
relates to procedural fairness and bias arguments raised by the Applicants. In
the affidavit, Robert Hall sets out that in 2015 he was issued two certificates
by Aboriginal and Northern Development Canada for training as an electoral officer
under the Indian Act and First Nations Elections Act Regulations,
CRC c 952. He has been recertified as an Indian Act electoral officer every
two years since 2002. His evidence is that he has served as an electoral
officer or deputy officer on average of two or three elections each year
between 2002 and 2010. He indicates that he was recognized as a senior
electoral officer during recent training. He was appointed by the Sturgeon Lake
Cree Nation in a BCR dated February 2, 2016, and was paid as per the proposal
in the amount of $29,600.00. His selected team of polling clerks consisted of
Saskatchewan residents: Diane Ahenakew-Boyer; Donna Ahenakew; Lester Lafond and
Brian Clark (British Columbia).
[24]
Robert Hall’s evidence is that his team received
18 nominations for candidates on March 9, 2016, including two nominations for
Chief. He excluded two candidates – including Kevin Hamelin – for owing money
to the Band contrary to section 6.4(a)(iii) (see paragraph 4 above). Robert
Hall made this finding as he had been provided a list by the SLCN Finance
Director of Band members that owed money on nomination day and Kevin Hamelin
was on the list as owing money.
[25]
On April 5, 2016, Robert Hall contacted the Appeal
Committee to inform them he had received four notices of appeal. He convened a
telephone conference call on April 8, 2016, with the Appeal Committee after
providing them copies of the notice of appeals.
[26]
Three of the appeal notices were from the
Applicants. Kevin Hamelin appealed the decision by Robert Hall refusing his
nomination as well as appealing the nomination of people that did not meet the
residency requirement in the election regulations. Darwin Hamelin appealed the
nomination of Susan Wale on the basis that she did not meet the residency
requirements in section 6.4(a)(ii (see paragraph 4 above). As well he appealed
on the grounds of the manner in which elections were conducted under the
following provisions of the election regulations: 8.5 secret vote; 8.7 manner
of vote; 8.8 refusal of permission to vote; 8.9 removal of persons from polling
station; 9 counting of votes; and 9.2 void votes. Wilma Goodswimmer appealed the
nominations of Susan Wale and Jeannine Calliou alleging that neither met
residency requirements as well as appealing how the ballots were counted.
[27]
The Applicants advocate that Robert Hall denied them
procedural fairness. They submit that Robert Hall unilaterally dismissed Kevin
Hamelin’s appeal without considering its merits. The Applicants argue that the Appeal
Committee, not the electoral officer, is to deal with appeals in accordance
with the election regulations. Similarly, the Applicants argue Robert Hall restricted
the appeals of Darwin Hamelin and Wilma Goodswimmer to the residency qualifications
of Jeannine Calliou and Susan Wale. They submit it should have been the Appeal
Committee who made the determinations with respect to all of the grounds in the
notices of appeal.
[28]
The Respondent’s position is that Robert Hall
has a duty to know and apply the election regulations. An electoral officer’s
job, pursuant to section 12.1 (above at paragraph 20) of the election
regulations, is to act as a gatekeeper and not let matters proceed which have
no reasonable or probable grounds. Furthermore, Robert Hall made a decision
pursuant to section 6.4, based on information he received from the Band’s
Financial Director. Kevin Hamelin did not deny he owed money to the Band yet
challenges his ineligibility nonetheless. Since Robert Hall found that there were
no reasonable and probable grounds advanced in the appeal of Kevin Hamelin, it
was appropriately dismissed.
[29]
The Applicants agree that on the document given to
Robert Hall by the Band a debt is listed under Kevin Hamelin’s name as being
owed to the Band. However, the Applicants argue there is no legal basis for the
debt to be owed. Kevin Hamelin’s evidence is that the debt was due to an
ongoing housing dispute which had not been resolved. He attempted to provide
Robert Hall a letter showing he does not owe money which Robert Hall returned
to him. But more importantly, Kevin Hamelin was not afforded the opportunity to
present this evidence to the Appeal Committee as Robert Hall summarily
dismissed his nomination. In this application I make no finding of whether
there was a debt owed by Kevin Hamelin.
[30]
The Respondent argues that the Appeal Committee is
required to refuse Kevin Hamelin’s appeal on a preliminary basis due to the
express inclusion of the words “reasonable and probable grounds”. When asked for
authority under the election regulations for an electoral officer to make preliminary
unilateral determinations, the Respondent could not provide me with such
authority. The Respondent instead suggested that an electoral officer merely
needs reasonable and probable grounds that an appeal would not be successful to
determine whether an appeal should be put to the Appeal Committee.
[31]
In his affidavit, Robert Hall indicates that his
role was to streamline appeals and not waste time or money by hearing matters
that did not have reasonable and probable grounds. He also states that he brought
the appeals to the Appeal Committee’s attention during the telephone call of
April 8, 2016, where the Appeal Committee decided what grounds would proceed to
a hearing in Edmonton.
[32]
Robert Hall’s evidence was that the Appeal Committee
members were given the appeal notices in advance of the telephone call and that
the decisions of what would proceed to a hearing were made by unanimous vote. It
is Robert Hall’s position that it was the Appeal Committee that decided that
only the grounds of appeal that met the requirements of section 12.1 of the
election regulations were the appeal grounds regarding residency eligibility of
Jeannine Calliou and Susan Wale and that none of Kevin Hamelin’s appeal would be
heard including his ground regarding residency of candidates.
[33]
In direct contrast to Robert Hall’s evidence, Appeal
Committee member, Victoria Sunshine in her affidavit stated that Robert Hall
alone decided which appeals would be heard. She described in her affidavit the
comments made by Robert Hall of what was a valid ground of appeal. Victoria
Sunshine states in her affidavit that “Robert Hall,
alone, decided that none of the appeals by Kevin Hamelin would be heard and he
told the Election Appeal Committee that that [word repeated] was because “Kevin
and himself had an understanding.””
[34]
She goes on to describe how Robert Hall told the
Appeal Committee that the Band would suffer if they had to pay for an appeal as
it would be an unnecessary expense and she was lead to believe that they would
be personally responsible for costing the Band unnecessary money if they voted in
favor of any appeal. Her evidence is that the Appeal Committee did not have
further discussion in Edmonton regarding the appeals as Robert Hall was in a
hurry to return to Saskatchewan. The Appeal Committee was told in his
experience that appeals never go anywhere so they are a waste of time and she found
this a scare tactic as well as an attempt to influence the outcome of the
election appeals. I find that Victoria Sunshine is credible as she had nothing
to gain by agreeing to disclose her recollection of the April 8 telephone call
or the appeal hearing. I will rely on Victoria Sunshine’s evidence when in
contrast to Robert Hall’s.
[35]
I conclude that Robert Hall alone, not the Appeal
Committee determined the appeals. My conclusion is further supported by Robert
Hall’s letters to Kevin Hamelin. In Robert Hall’s letter to Kevin Hamelin dated
March 17, 2016, Robert Hall described his own decision not to accept Kevin Hamelin’s
nomination. On April 5, 2016, the same day Kevin Hamelin filed his appeal,
Robert Hall produced a “Notice Response to Notice of
Appeal of Kevin Hamelin.” In that notice Robert Hall stated that section
12.1 “requires reasonable and probable grounds to
justify an Appeal hearing and the notice of appeal does not meet the
requirements for a hearing.” Then on April 8, 2016, after the Appeal Committee
phone call Kevin Hamelin received a letter that is identical other than the
opening sentence, to the email of April 5, 2016. The identical responses lead
me to determine that the decision was already made by Robert Hall before the Appeal
Committee meeting and was not a determination by the Appeal Committee.
[36]
The election regulations passed by the Band set
out the composition of the Appeal Committee. All members of the Appeal Committee
are members of the Band except in this case, the electoral officer who chaired
the Appeal Committee. The importance of the Appeal Committee to Band governance
cannot be overstated. The Appeal Committee composition being members of the Band
makes sense because they know their Band and what is best for their community. They
may not have the expertise or experience of the electoral officer which is why
the electoral officer provides guidance as chair. It remains for the majority of
the Appeal committee which are all band members to make decisions regarding
appeals. In his attempt for efficiency, Robert Hall appears to have lost sight
that the regulations do not give him the right to unilaterally determine
appeals.
[37]
I agree with the Respondent that protecting
Appeal Committee members from intimidation is important. However, it is not an
electoral officer’s role, under the SLCN election regulations, to screen which
appeals will go to the Appeal Committee and which will not. Nowhere is it
written in section 12.1, that an appellant can be screened out based on a lack
of reasonable and probable grounds. What the regulations do state is that the
appellant themselves must believe they have reasonable and probable grounds. The
members of the Appeal Committee determine whether a matter will go to a hearing
and set out their own procedure at the hearing (Therrien (Re), 2001 SCC
35 at para 88; Knight v Indian Head School Division No. 19, [1990] 1 SCR
653 at page 685).
[38]
I find there was a breach of procedural fairness
in not having the notices of appeal that were filed determined in whole by the Appeal
Committee.
Bias
[39]
The Applicants argue that since Robert Hall
acted alone in deciding an appeal of his own decision, he created a reasonable
apprehension of bias.
[40]
The test for a reasonable apprehension of bias
was set out in Committee for Justice & Liberty v Canada (National Energy
Board), [1978] 1 S.C.R. 369 at paragraphs 40-41 as follows:
What would an informed person, viewing the
matter realistically and practically – and having thought the matter through –
conclude?
[41]
The Applicants submit that the refusal of Robert
Hall to even put Kevin Hamelin’s appeal before the Appeal Committee indicates
that Robert Hall’s decision was biased. In particular, Robert Hall’s bias is
made apparent by the fact that other nominees were allowed to stand for election
despite not meeting minimum requirements for candidacy – such as residency –
whereas Kevin Hamelin was unilaterally denied.
[42]
Madam Justice Kane in Felix v Sturgeon Lake First
Nation, 2014 FC 911, determined an application for judicial review where an
appeal tribunal was involved in the disqualification of a candidate running for
election of Chief because he owed the Band money from an earlier court order
for costs. Justice Kane found a breach of procedural fairness on those facts as
there was a reasonable apprehension of bias because the appeal tribunal
assisted in disqualifying the applicant to run in the election and then heard
the appeal of the disqualification. This case is very similar in that Robert
Hall made the determination that Kevin Hamelin was disqualified and then
decided the appeal would not be heard.
[43]
As I have already determined that the matter
will be returned for a breach of procedural fairness, I need not make further
comment on the bias issue other than to say that it would seem obvious to most
observers that you should not sit in appeal of your own decision. A concern for
this Band may be that their election regulations allow the electoral officer to
vote in an appeal which may lend itself to possible bias allegations.
Location of Hearing
[44]
Finally, the Applicants submitted that by
holding the appeal hearing in Edmonton (approximately 350 km away from the
First Nation) prevented Band members and witnesses from attending, rendering
the appeal process procedurally unfair.
[45]
The Respondent argues that the decision to have
the meeting in Edmonton rather than on reserve was to avoid intimidation and
ensure the Appeal Committee’s independence. The Respondent says that this
decision was made by majority vote. According to Robert Hall “the EAC hoped to avoid any intimidation or other tactics
that would affect the outcome of the meeting, and to ensure the independence of
the committee.” In his affidavit he indicates he was informed by Council
that half of the Band members do not live on reserve but did not elaborate how
this supported his position. His evidence is that the Appeal Committee did not
attend in 2013 when a hearing was held on the Sturgeon Lake Cree Nation reserve
as they “felt intimidated and did not want to take
sides.”
[46]
The following persons were present at the appeal
meeting in Edmonton: members of the committee, their legal counsel, the appellants,
the two newly elected councillors whose eligibility was at issue, and 20 SLCN Band
members. Some witnesses that had been given the opportunity to speak were
notably absent though there was no evidence as to why they did not attend.
[47]
The Appeal Committee can set out its own rules and
procedure. It is within the power of the Appeal Committee to pick the time and
place as well as the structure of the hearing. Underlying these powers are the
fundamentals of natural justice and fairness. It is not for this court to
dictate the specifics of the hearing as long as it is still within the
perimeters of fairness.
[48]
Though I may not agree that the Appeal Committee
should hold the meeting almost 350 km away from the First Nation, that is not
my role and in this case it was within the range of reasonableness.
[49]
Nor do I find any breach of procedural fairness
in how the meeting was conducted as the Appeal Committee had set out how it would
proceed in advance and set the procedure out in their agenda. We do not know
why the witnesses chose not to attend and their failure to attend does in
itself render the hearing procedurally unfair.
Hearing on residency
[50]
The Applicants argue that the appeals regarding
residency were procedurally unfair and the decisions were unreasonable.
[51]
As addressed in the reasons already, the court
found procedural unfairness for the electoral officer to unilaterally determine
whether an appeal had reasonable and probable grounds. For that reason, I will
not determine if the actual decision that was heard by the Appeal Committee
regarding the residency of two nominees was reasonable as the appeals will be
re-determined.
IV.
Conclusion
[52]
The application is successful and the decisions
regarding the appeals will be re-determined. The court is well aware that this
is not an easy or inexpensive process for the Band because Chief and Council
that were elected have been in place since March 23, 2016.
[53]
This decision is made with a full understanding
of the ramifications on the Sturgeon Lake Cree Nation. But this order must be made
out of respect for the members that voted in this election and the hope that
future governance determinations will proceed as directed in the election regulations.
[54]
For all of the above reasons, including fairness
to all the parties involved, the Appeal Committee’s re-determination needs to
proceed as expeditiously as possible.
[55]
The Appeal Committee should be the same as was
previously constituted otherwise we would be asking the current Chief and
Council to form a committee when the appeals are regarding the election from
which they were successful. If the previous committee members are no longer
able to be on the Appeal Committee they will need to be replaced. Even though
this is not the optimal solution for the reasons indicated above, if Appeal Committee
members need to be replaced then the current Chief and Council would have to
make these appointments in a fair and transparent way according to the election
regulations.
[56]
It is for the Appeal Committee to decide the
process of how they will determine the appeals. Robert Hall should not be the
electoral officer that chairs and votes on the Appeal Committee as to do so
would have him sitting in appeal of his own decisions. The Chief and Council
may or may not appoint a new electoral officer. If a new electoral officer is
appointed they may participate in Appeal Committee decisions pursuant to the
regulations.
[57]
If none of the appeals are successful, then the
election results stand. If the Appeal Committee finds that Kevin Hamelin’s
appeal is successful then he must be placed on the ballot and a new election
held. This will also occur if any of the other appeals are successful regarding
residential eligibility of nominees or any of the other grounds in the appeals.
V.
Costs
[58]
The Respondent sought costs on a substantial
basis because of weak supporting evidence that they say “constitutes frivolity”. This application was not
frivolous and costs will not be awarded on that basis. The Applicants sought
costs on a solicitor client basis as the judicial review was brought as a
matter of public interest to the Band. This was not a situation where it would
be appropriate to award solicitor client costs to the Applicants as the Respondent
was fully cooperative and professional. As the Applicants were successful, costs
will be awarded in the amount of $200.00 to each Applicant (total $600.00) to
be paid forthwith by the Respondent.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application is granted with the four appeals
previously filed to be determined by the Appeal Committee. The appeals will be
heard without electoral officer, Robert Hall’s involvement.
2.
The current Chief and Council will remain in their
positions until the appeals are heard and a decision by the Appeal Committee is
made. Depending on the outcome of the appeals, the Appeal Committee will then decide
if a new election will be held.
3.
Costs are awarded in the amount of $200.00 to
each of the Applicants to be paid forthwith by the Respondent.
"Glennys L. McVeigh"
Email this Content