Docket: T-1254-16
Citation:
2016 FC 1127
Ottawa, Ontario, October 7, 2016
PRESENT: The Honourable Mr. Justice Roy
|
BETWEEN:
|
|
COWESSESS FIRST
NATION NO. 73
|
|
Applicant
|
|
And
|
|
GARY PELLETIER,
STAN DELORME, PATRICK REDWOOD, CAROL LAVALLEE, MALCOLM DELORME, CURTIS LEBRAT
and TERRENCE LAVALLEE
|
|
Respondents
|
ORDER AND REASONS
[1]
Terrence Lavallee makes a motion in writing, in
accordance with Rule 369 of the Federal Courts Rules, SOR/98-106,
seeking:
1.
to be added as a respondent in the judicial
review application initiated by the applicant;
2.
an order pursuant to s 18.1(2) of the Federal
Courts Act, RSC 1985, c F-7, to extend by a further seven (7) days after
the issuance of the order the period of time for a separate judicial review
application to be filed by him, in case he were allowed to file a new judicial
review application of the decision of the Cowessess First Nation Election
Appeal Tribunal rendered on June 27, 2016.
I.
Mr. Lavallee as a respondent
[2]
The underlying matter consists of a judicial
review application launched by the Cowessess First Nation No. 73 against a
decision of the Cowessess First Nation Election Appeal Tribunal. The details of
the decision are not relevant to the matter at hand. Suffice it to say that
Terrence Lavallee presented a large number of grievances concerning the
election of the Chief and Council of the Cowessess First Nation No. 73. He
appealed alone and there is no discussion in the decision as to what was his
standing to challenge the election to positions other than the one he stood
election for. Mr. Lavallee was Chief between 2013 and 2016 and he sought
election as Chief on April 27, 2016. He was defeated.
[3]
However, there is no doubt that he was the
engine behind the appeal which concluded with a 38-page ruling replete with allegations
made by Mr. Lavallee. Each allegation by Mr. Lavallee is presented, counter
arguments are discussed and a decision reached by the three-member panel of the
Cowessess First Nation Election Appeal Tribunal.
[4]
In the result, the Appeal Tribunal found that
out of seven individuals elected to the position of Resident Councillor, three
had to be disqualified for one reason or another. In accordance with the Cowessess
First Nation No. 73 Custom Election Act, the next three candidates with the
most votes were elected.
[5]
The judicial review application launched by the
Cowessess First Nation No. 73 has as respondents the three disqualified
candidates and the next three candidates with the most votes. Mr. Lavallee is
not named as a respondent. In my view, he should have been included.
[6]
The first reason for reaching that conclusion is
that Mr. Lavallee is one of the parties in the appeal heard by the Election
Appeal Tribunal. Without his appeal, there is no appeal. It is with respect to
some of his allegations that some candidates were disqualified ex post facto.
It is those very disqualifications that are the object of the judicial review
application. I fail to see how he can be ignored at this stage. The parties to
the proceeding subject of an application for judicial review should be named as
respondents (DF v Human Rights Tribunal of Ontario, 2012 ONSC 1530
(Divisional Court); Tetzlaff v Canada (Minister of the Environment),
[1992] 2 FC 215 (FCA) [Tetzlaff]; and more recently Douglas v Canada
(Attorney General), 2013 FC 451, [2014] 4 FCR 494). In Tetzlaff, the
Federal Court of Appeal wrote: “By the same token,
parties to proceedings before a federal board, commission or tribunal are
always properly (and usually necessarily) made parties when those proceedings,
or the results thereof, are the subject of an attack under s. 18 of the Federal
Court Act.” (para 20)
[7]
But there is more. The Cowessess First Nation
No. 73 concedes in its memorandum of facts and law that the judicial review
application will not be opposed by the six named respondents, as “[e]ach of the Respondents has filed an affidavit stating
that he or she either supports, or takes no position, with respect to the
Application filed by the Cowessess First Nation.” (para 67)
[8]
Thus, not only ought Mr. Lavallee to have been
named as a respondent, but his presence is now necessary (Tetzlaff, supra)
to ensure that there will be a debate or, in the words of Rule 104, “to ensure that all matters in dispute in the proceeding may
be effectually and completely determined”. The judicial review
application is in effect deliberately constructed by the applicant in order to
exclude the person who initiated the appeal to leave as respondents those who
will not oppose the judicial review application. Mr. Lavallee shall be added as
a respondent and the style of cause adjusted accordingly.
II.
Extension of time to file a separate application
for judicial review
[9]
Mr. Lavallee did not file his own judicial
review application according to the requirements of s 18.1 of the Federal
Courts Act. In order to be granted an extension of time (ss 18.1(2)),
he must satisfy the Hennelly factors:
a)
continuing intention to pursue the application
b)
potential merit of the application
c)
prejudice to the other party
d)
reasonable explanation for the delay
(Canada (Attorney General) v Hennelly (1999), 244 NR 399).
[10]
In my view, the prejudice that would be suffered
by the applicant would be minimal if an extension of time was to be granted.
However, the other three factors favour the Cowessess First Nation No. 73.
[11]
There is no doubt that Mr. Lavallee was alive to
the need to satisfy the Hennelly factors. His memorandum of facts and
law seeks to address the factors seriatim. Thus, he claims that he has
indicated throughout his intention to pursue the application. That is not the
case.
[12]
Mr. Lavallee states that he waited until the end
of the 30-day period to see if an application would be launched by someone
else. He said that “he did not want to incur the cost
and engage in a legal dispute that would cause uncertainty to the governance of
the Cowessess First Nation by engaging in a judicial review proceeding to set
aside the other four Resident Councillor positions.” Waiting to see is
not showing a continuing intention to pursue the matter; in fact, that looks
like the opposite.
[13]
More importantly, the motion fails the criterion
of the potential merit of his own application. Other than presenting generally
that he would want to disqualify the seven councillors in order to have a new
election ordered, there is no indication of the argument that could be advanced
in support of such proposition. As noted by counsel for the Cowessess First
Nation No. 73, this contention flies in the face of Article 11.05 of the Cowessess
First Nation No. 73 Custom Election Act which governs the conducting of
appeals. The Act provides specifically for the election of candidates in case
some other candidates are disqualified. It was incumbent on Mr. Lavallee to
show more than there is “an arguable case for this
relief.” A statement will not do. That does not establish the merit; it
is merely a general allegation. Is of the same ilk the statement that the
Appeal Tribunal is wrong in not setting aside the election of the seven
councillors. That does not establish any potential merit. It establishes nothing.
There is no draft of a judicial review application that could be reviewed to
assess the possible merits. Instead, the Court is left with general assertions.
These miss the mark.
[14]
The factor requiring a reasonable explanation
for the delay is not satisfied either. Here, Mr. Lavallee states that he has
been waiting in the weeds for more than 40 days. He was perfectly aware of the
decision rendered, being one of the main protagonists, yet he wanted to be in a
position to react to what his opponents were going to do. A strategy for
litigation does not constitute an explanation for not bringing one’s own
application in due course. He puts it thus in his memorandum of facts and law,
at para 25: “Subsequent to becoming aware of this
proceeding, I have taken every step possible to oppose the proceeding and
initiate my own application for judicial review. I have not delayed in taking
these steps.” But that is not the issue. There was a need to account for
the first 30 days. In fact, the most important period of time was the initial
30 days. Mr. Lavallee had to explain why he did not initiate his own
proceedings during that period. As pointed out earlier, strategic
considerations are not a reasonable explanation.
[15]
The combination of lack of reasonable
explanation, lack of demonstration of continuing intention to pursue the
application and the lack of showing of the potential merit of the application will
generate only one possible conclusion. The motion for an extension of time to
file a separate application for judicial review must be dismissed.
[16]
The Cowessess First Nation No. 73 requested by
letter dated September 15, 2016 that in case Mr. Lavallee’s motion were
successful in any part, a case management conference be arranged. This is
premature. The parties should have their material prepared such that the
judicial review application is perfected. The Rules of the Federal Courts exist
that will assist with the resolution of most matters. Once the circumstances
change that warrant a new request, it can then be considered in light of the
facts.
Email this Content