Docket: T-744-17
Citation:
2017 FC 835
Ottawa, Ontario, September 18, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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CHIEF PAUL
MICHEL
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Applicant
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and
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ADAMS LAKE
INDIAN BAND COMMUNITY PANEL
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is an Application for judicial review filed
under s. 18.1 of the Federal Courts Act, RSC 1985, c F-7. For the
reasons that follow, I am dismissing the Application.
[2]
In December 2016, the Applicant, Chief Paul
Michel, was elected Chief of the Adams Lake Indian Band [Band]. Chief Michel
defeated the runner-up, Nelson Leon, by 75 votes.
[3]
Mr. Leon filed a petition [Petition] in May 2017
with the Respondent Adams Lake Indian Band Community Panel [Panel] seeking
Chief Michel’s removal from office under the 2014 Adams Lake Secwepemc Election
Rules [Election Rules].
[4]
In his Petition, Mr. Leon alleged that Chief
Michel had violated the Election Rules and breached his Oath of Office [Alleged
Violations].
[5]
The Panel commenced its investigation into the
Alleged Violations. The Panel held a meeting on May 6, 2017, during
which its members intended to interview Chief Michel about the matters raised
in the Petition. At this meeting, Chief Michel alleged that the Panel members
exhibited bias and conflicts of interest and called for the Panel to step down
by the following day. The Panel members did not step down [the Bias Decision].
Rather, they continued investigating the Petition.
[6]
Chief Michel filed this Application on May 19, 2017
requesting judicial review of the Bias Decision. In his Notice of Application,
Chief Michel seeks an order from this Court quashing the Bias Decision and
declaring it to have been made perversely, capriciously, and on the basis of
erroneous factual findings. He also seeks an order declaring the Petition to be
invalid and beyond the jurisdiction of the Panel due to the nature of the
Alleged Violations.
[7]
Chief Michel’s Application was filed while two
other proceedings before this Court challenging the Panel’s decision-making
were ongoing: in 2015 and 2016, the Panel removed Band councillors Georgina
Johnny, Brandy Jules, Ronald Jules, and Doris Johnny from office following two petitions
pursuant to the Election Rules. These former councillors also sought judicial
review, arguing that the Panel’s removal decisions should be quashed (see Johnny
v Adams Lake Indian Band, 2016 FC 1399; Johnny v Adams Lake Indian Band,
2017 FC 156). This Court dismissed both applications, and both were appealed to
the Federal Court of Appeal [FCA], which ultimately found in favour of the
councillors, as will be discussed below.
[8]
On June 4, 2017, after the filing of
this Application, the Panel issued its decision on Mr. Leon’s Petition [Removal
Decision]. Specifically, the Panel found that Chief Michel had breached his Oath
of Office in four ways:
1.
by approving a Band Council Resolution [BCR]
approving funds for Ronald Jules, Brandy Jules, and Georgina Johnny to attend
court proceedings in Vancouver;
2.
by being part of the Council that suspended the
Panel in January 2017;
3.
by allowing a BCR to be passed relating to the
legal representation of the Band without declaring his own alleged conflict of
interest; and
4.
by filing an affidavit with the FCA in support
of councillors Georgina Johnny, Brandy Jules, and Ronald Jules.
[9]
As a result of these findings, the Panel ordered
the removal of Chief Michel from office for a period of two terms.
[10]
On June 5, 2017, Chief Michel filed a
notice of motion seeking an interlocutory injunction restoring him to the
office of Chief pending the hearing of this Application. On June 14, 2017,
this Court granted the injunction, staying the Panel’s removal order and
ordering the judicial review to be heard on an expedited basis (Order of
Justice Strickland, T-744-17).
[11]
On July 5, 2017, the FCA released
its decisions in (i) Johnny v Adams Lake Indian Band, 2017 FCA 146 [Johnny
and Jules], and (ii) Johnny v Adams Lake Indian Band, 2017 FCA 147 [Johnny].
The FCA allowed both appeals, finding that the Panel had (i) failed to respect
principles of natural justice, and (ii) unreasonably interpreted the
requirements of the Election Rules, respectively.
[12]
As a result of these two FCA decisions, and
particularly in light of the FCA’s findings as to the Panel’s breaches of
procedural fairness, the Panel wrote a letter to Chief Michel dated July 19, 2017,
the core contents of which are as follows:
Re: Rehearing of the Petition of Nelson Leon
On May 5, 2017, the Community Panel received
a petition from Nelson Leon alleging that you breached the Adams Lake Secwepemc
Election Rules and your oath of office (the "Petition"). On June 4,
2017, the Community Panel issued its decision regarding the Petition, removing
you from office (the "Decision"). The effect of the Decision was
later stayed by court order.
On July 5, 2017, the Federal Court of Appeal
allowed the appeal of councillors Georgina Johnny, Brandy Jules and Ronald
Jules and set aside the decision of the Community Panel removing those
councillors from office on the basis that the Community Panel had breached the
duty of fairness owed to those councillors.
In light of the court’s reasons for judgment
in that case and, in particular, the court’s discussion of the content of the
duty of fairness owed by the Community Panel to members of council accused of
breaching their oath of office, the Community Panel has recognized that it
failed to meet the requirements of the duty of fairness owed to you in its
consideration of the Petition, rendering the Decision null and void. In light
of this conclusion, the Community Panel hereby withdraws the Decision.
The Community Panel will promptly make
arrangements to rehear the Petition in a manner that that accords with the
Adams Lake Secwepemc Election Rules and with the requirements of the duty of
fairness as outlined by the court.
(Respondent’s Record [RR] at p 37).
In short, through this letter [the
Nullification Letter], the Panel advised all parties concerned that its Removal
Decision was of no effect and would be reconsidered in accordance with the
guidance received from the FCA.
[13]
Notwithstanding the Nullification Letter, Chief
Michel, in his written submissions, continued to seek various forms of relief in
this Application relating to the Bias Decision and the Removal Decision.
However, during oral argument, Chief Michel’s counsel clarified that only two
issues were before this Court:
1.
whether the Panel had the jurisdiction to decide
the complaints raised by the Petition; and
2.
whether the Panel members exhibited a reasonable
apprehension of bias.
II.
Analysis
Issue 1: Mootness and Prematurity
[14]
I will first consider whether the two issues
raised by Chief Michel are moot, and, if they are, whether I will exercise my
discretion to hear them. In broad terms, an issue is “moot”
when, as a result of changed circumstances, its disposition will have no
practical effect on the parties (see Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 (SCC) at 353, 1989 CarswellSask 241 (WL Can) at para 15 [Borowski]).
The changed circumstances arise here from the Panel’s withdrawal of its Removal
Decision after the filing of Chief Michel’s Application.
[15]
The Borowski test for mootness was
summarized by this Court in Harvan v Canada (Minister of Citizenship and
Immigration), 2015 FC 1026 at paragraph 7 as follows:
The test for mootness comprises a two-step
analysis. The first step asks whether the Court’s decision would have any
practical effect on solving a live controversy between the parties, and the
Court should consider whether the issues have become academic, and whether the
dispute has disappeared, in which case the proceedings are moot. If the first
step of the test is met, the second step is – notwithstanding the fact that the
matter is moot – that the Court must consider whether to nonetheless exercise
its discretion to decide the case. The Court’s exercise of discretion in the
second step should be guided by three policy rationales which are as follows:
i. the presence of an adversarial context;
ii. the concern for judicial economy;
iii. the
consideration of whether the Court would be encroaching upon the legislative
sphere rather than fulfilling its role as the adjudicative branch of
government.
(1)
Jurisdiction
[16]
The Petition alleges, among other things, that
Chief Michel breached his Oath of Office by permitting certain BCRs to be
passed by Council and filing an affidavit in support of the councillors removed
from office by the Panel. Chief Michel argues that duly passed BCRs and his
decision to provide evidence in proceedings before the FCA, are matters outside
of his Oath of Office and thus outside of the Panel’s jurisdiction. He
maintains that this jurisdictional question should be determined by this Court
even though the Removal Decision is of no effect. The Panel, on the other hand,
maintains that the matter is moot.
[17]
I cannot accept Chief Michel’s position. Under
the first step of the Borowski test, the issue of jurisdiction is
clearly moot. It became academic when the Panel nullified its Removal Decision,
and will remain so until the Panel confirms whether it will rehear the Petition
and what the content of any such rehearing would be.
[18]
Under the second step of the Borowski
test, none of the three considerations favour exercising the Court’s discretion
to decide the issue. First, there is at present no adversarial context.
[19]
Second, judicial economy militates against my
making, on this Application, any decision regarding Chief Michel’s conduct or
the grounds properly considered in such a future determination. Of course,
should the Panel ultimately render a decision that Chief Michel disagrees with,
he may then challenge that decision’s underlying procedure or merits before this
Court in a future judicial review. But to do so now, before a tribunal hearing
has even been confirmed, and before Chief Michel has raised his jurisdictional
objections in front of the Panel that would decide such a petition, is putting
the cart well before the horse.
[20]
Third, for many of the reasons set out in the
paragraph above, having the Court pre-emptively weigh in on the jurisdiction of
the Panel and what it may decide in the future, would be for the Court to
encroach on the Panel’s legislative sphere; under the Election Rules, jurisdiction
to first hear and decide matters relating to the election and conduct of Chief
and Council clearly lies with the Panel, not this Court.
[21]
The fact that the issues raised by the Petition
may indeed be reheard by the Panel does not assist Chief Michel. To the
contrary, his request is premature: the administrative process is not yet
complete and, in fact, it has not even begun. Absent exceptional circumstances,
parties cannot proceed to the courts until the administrative process is over (Canada
(Border Service Agency) v CB Powell Limited, 2010 FCA 61 at para 31 [Powell]).
The rule against prematurity prevents the fragmentation of the administrative
process and avoids the “waste associated with hearing
an interlocutory judicial review when the applicant for judicial review may
succeed at the end of the administrative process anyway” (Powell
at para 32). Jurisdictional issues, like those advanced by Chief Michel, have
been held to not constitute “exceptional circumstances”
justifying premature application to this Court (Powell at paras 33,
39-40).
[22]
Going back to the basics then, fundamental
administrative review principles do not allow the Court to intervene in this
case. The Removal Decision is “null and void”
according to the Panel itself, so there is no administrative decision for this
Court to review. Furthermore, the record also shows that Chief Michel’s
jurisdictional arguments were never put to the Panel.
[23]
This Court cannot intervene in the affairs of an
administrative decision-maker on administrative law grounds when no administrative
decision exists. To do so would be similar to a Court determining, on judicial
review, matters that were not raised before the administrative tribunal,
thereby substituting itself for the tribunal (see Rouleau v Canada (Attorney
General), 2017 FC 534 at paras 36-38).
[24]
If the Panel does not rehear the merits of the
Petition, the matter will remain moot. Should the Panel decide to rehear the Petition,
Chief Michel may then raise all his objections, including those based on
jurisdiction. The Panel will then decide whether to reconsider the matter and,
if so, how to conduct the rehearing. If at that point Chief Michel wishes to
challenge the Panel’s decision on jurisdictional or other grounds, there would then
be a decision for this Court to review.
[25]
During oral arguments, counsel for Chief Michel
conceded that, through a request for a review of jurisdictional issues, Chief
Michel in effect seeks an injunction preventing the Panel from investigating or
rehearing the matters raised by the Petition. Injunctive relief is familiar to
Chief Michel, who succeeded in staying the Removal Decision, allowing him to
maintain his role as Chief for an interim period.
[26]
If Chief Michel wished to seek a permanent
injunction against the Panel, he should have focused his written and oral
arguments on demonstrating that the stringent test for injunctive relief was
met. He did not. It is very rare for a Court to grant an injunction against an
administrative decision-maker before or during a proceeding (Powell at
para 33).
[27]
While I understand that the issues raised in
this Application are important and time-sensitive to the parties, those
motivations do not allow the Court to dispense with either its procedural rules,
or the fundamental administrative law principles at play. Were I to review the
Panel’s nullified Removal Decision and conduct a premature analysis towards
what would effectively amount to injunctive relief, this Court — rather than
the Panel — would be exceeding its own jurisdiction.
(2)
Reasonable Apprehension of Bias
[28]
Chief Michel argues, as a second issue, that the
composition of the Panel offends principles of natural justice because its
members exhibit bias based on various conflicts of interests. He submits that
bias remains a live issue notwithstanding the Nullification Letter, because
this Panel may rehear the matter before the appointment of the next Panel
(which is due for election as of October 2017). He notes that the same five
members of the Panel may be re-appointed at that time.
[29]
In its Memorandum of Fact and Law, the Panel responds
that whether or not there was a reasonable apprehension of bias, the proceeding
is moot. However, as an alternative position, in the event that the Court
decides to exercise its discretion to decide the issue of bias, the Panel also provided
submissions as to why no reasonable apprehension of bias exists.
[30]
Following upon these written submissions, the
Panel’s counsel informed the Court during a case management conference held on
July 26, 2017, and then subsequently at the July 31, 2017 hearing of this
matter, that it did not oppose the Court’s guidance on the issue of bias, which
it felt would be helpful should the same Panel reconvene.
[31]
Given the positions of the parties, and the fact
that the same Panel members may end up rehearing this matter, I will exercise
my discretion under the second step of the Borowksi test to decide the
bias issue.
Issue 2: Reasonable Apprehension of Bias
[32]
The Panel is an administrative body with a
primarily adjudicative function and, as such, it must be free from a reasonable
apprehension of bias (Johnny and Jules at para 43). If bias amongst its
members is established, this constitutes a breach of procedural fairness
because it deprives a party of a fair hearing (see Gaziova v Canada
(Citizenship and Immigration), 2017 FC 679 at para 24, citing Baker v
Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (SCC) at
para 45). Although, traditionally, questions of procedural fairness were
reviewable on a standard of correctness (see Johnny and Jules at para
19; Khela v Mission Institution, 2014 SCC 24 at para 79), the FCA
recently cautioned that the law in this area remains unsettled (Vavilov v
Canada (Citizenship and Immigration), 2017 FCA 132 at para 13). However, in
this matter, I do not need to decide whether the standard of reasonableness or
correctness applies; under either standard, Chief Michel has not established a
reasonable apprehension of bias.
[33]
To disqualify the Panel members for bias, Chief
Michel must demonstrate that an informed person, viewing the matter
realistically and practically, and having thought the matter through, would think
it more likely than not that the Panel would not decide fairly (Committee
for Justice & Liberty v Canada (National Energy Board), [1978] 1 SCR
369 (SCC) at 394, 1976 CarswellNat 434 (WL Can) at para 40). In its recent
judgment in Johnny and Jules, the FCA commented on the test for reasonable
apprehension of bias as it relates to decision-making bodies whose members are
drawn from a small community:
[41] The Election
Rules do not preclude Band employees from holding office as a member of the
Community Panel. Only members of the Band Council or candidates in an election
are precluded from election as a member of the Community Panel. Thus, I do not
disagree with the Federal Court’s conclusion that the mere fact that a member
of the Community Panel is employed by the Band does not give rise to a
reasonable apprehension of bias. What is required is an actual conflict of
interest in a given case (reasons, paragraph 41). This is consistent with the
reasoning in Sparvier v. Cowessess Indian Band #73, [1993] 3 F.C.R. 142,
[1994] 1 C.N.L.R. 182 (F.C.T.D.) where Justice Rothstein wrote, at pages
167-168:
… it does not appear to me to be
realistic to expect members of the Appeal Tribunal, if they are residents of
the reservation, to be completely without social, family or business contacts
with a candidate in an election. …
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.
[42] It follows that if a member of the
Community Panel is in a position of conflict of interest with respect to a
particular issue, the member must not participate in any way in the process
that leads to a decision on that issue. In some circumstances, where
allegations are made with respect to a number of issues and where the nature of
the conflict would cause a reasonable and informed person to perceive that the
member would, consciously or unconsciously, be unable to decide other issues
fairly, the member must not participate at all in deciding any issue.
[43] This said, the
Community Panel must be free from a reasonable apprehension of bias. A tribunal
such as the Community Panel which is primarily adjudicative in its functions,
must meet the test for bias articulated in Committee for Justice and Liberty
et al. v. National Energy Board et al., [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.”
[34]
In short, looking through the prism of a small
First Nations community, the mere fact that a member of an administrative body
may have a family or work connection to others touched in some way by matters
at issue, does not lead directly or invariably to a reasonable apprehension of
bias. This is exactly the situation that we find ourselves in here: every one
of the Panel members is tied either through work or family to sitting members
of Chief and Council, or Band administration. Tribunal members serving small
Bands cannot avoid having friends and relatives involved in Band administration
and/or Council, and the fact of such ties alone does not raise a reasonable
apprehension of bias. Rather, what is needed to breach that threshold is an
actual conflict, such as a financial interest in the outcome of the dispute, or
close family members directly linked to the allegations at issue.
[35]
The facts of Johnny and Jules, in which
the FCA found a reasonable apprehension of bias for Panel members Maryann
Yarama and Lynn Kenoras (who are also Panel members in this case), were very
different from these facts. In Johnny and Jules, the allegations
regarding Ms. Kenoras included mistreatment of her mother, Councillor Norma
Manuel. Although Ms. Kenoras absented herself during the Panel interview of and
discussion regarding her mother, she participated in the ultimate decision on
that issue.
[36]
As for Ms. Yarama, in Johnny and Jules,
she had previously declared herself to be in a position of conflict with respect
to a security contract transition to Band staff, having been the Manager of
Maintenance and Housing for the Band. Nonetheless, she fully participated in
the discussion and decision on that issue.
[37]
The FCA found that both member Kenoras’ and
Yarama’s involvement in the Panel decision led to a reasonable apprehension of
bias (Johnny and Jules at paras 46-50).
[38]
Allegations of bias must be not be undertaken
lightly and the threshold for a finding of bias is high (R v S(RD), [1997]
3 SCR 484 (SCC) at para 113). Allegations must be supported by concrete
evidence and not mere assertions (Panov v Canada (Citizenship and
Immigration), 2015 FC 716 at para 20).
[39]
Here, I conclude that, unlike the specific
context in Johnny and Jules, Chief Michel has not established that the
Panel members should be disqualified because of a reasonable apprehension of
bias, based on the following analysis on a member-by-member basis. I will begin
with the same two members recently addressed in Johnny and Jules.
(1)
Maryann Yarama
[40]
Chief Michel deposes in his Affidavit that Ms.
Yarama is biased against him because (i) she criticized him at a Band
meeting, (ii) he put forward a motion at a Band Council meeting to revoke her
cheque-signing authority due to her alleged improper disclosure of confidential
information, (iii) senior Band employees under Ms. Yarama’s supervision tried
to interfere with Chief Michel’s execution of his duties, and (iv) Ms. Yarama
(or others) disclosed privileged and confidential information to Mr. Leon for
the purpose of assembling the records in support of his Petition.
[41]
I do not find the record to support any of these
allegations. The meeting minutes in question simply indicate a healthy dialogue
in which Ms. Yarama responds to comments made by Chief Michel regarding her alleged
conflict of interest. I agree with the Panel’s characterization of Ms. Yarama’s
comments as restrained and responsive, rather than an attack on Chief Michel.
[42]
For her part, Ms. Yarama deposes — in response
to the allegation that senior staff she supervises attempted to interfere with
Chief Michel’s role — that she does not supervise any senior staff.
[43]
I further agree with the Panel that even if Ms.
Yarama did indeed supervise senior staff members, her involvement as a
supervisor or non-supervisor does not raise a reasonable apprehension of bias:
Chief Michel has made no specific allegation and proffered no specific evidence
that any staff members did anything at Ms. Yarama’s behest or acted on her
instructions.
[44]
Finally, with respect to the “privileged and confidential” information alleged to
have been provided by Ms. Yarama or others to Mr. Leon, Chief Michel has
offered no specifics as to what this information is, or when and how Ms. Yarama
or others are to have provided it. Furthermore, Ms. Yarama deposes that nothing
of the sort occurred. This contention is supported independently by the Human
Resources Manager of the Band, Debra Sloat, in her affidavit. In short, Chief
Michel has not satisfied the Court that Ms. Yarama cannot hear the Petition. The
allegations in his affidavit do not demonstrate a reasonable apprehension of
bias.
(2)
Lynn Kenoras
[45]
Chief Michel deposes that Lynn Kenoras (i)
should have resigned from the Panel upon the election of her mother (Councillor
Manuel), (ii) attacked him at a general Band meeting, and (iii) is a cousin of
Mr. Leon. Chief Michel submits that this all leads to an apprehension of bias.
[46]
Again, I disagree. If there was a prohibition
from sitting on the Panel due to a relative serving on Council, the Panel rules
would so stipulate. There is no such prohibition. Certainly, Chief Michel has
not demonstrated, in his allegations, any reasonable apprehension of bias,
because Ms. Manuel was neither named in, nor gave any evidence regarding, the
allegations in Mr. Leon’s Petition. This is distinguishable from a decision of
the Panel considering positions taken or votes cast on Council by Ms. Kenoras’
mother — as was the case in Johnny and Jules.
[47]
As for the meeting, again the minutes do not
show anything out of order or bordering on “an attack”.
Rather, as with Member Yarama, the minutes reflect a healthy debate.
[48]
Finally, simply being a cousin of the petitioner
(Mr. Leon) does not give rise to a reasonable apprehension of bias. While there
might be other contexts where this might apply, as explained above by the FCA
in Johnny and Jules with reference to Sparvier, that was not the
case here, in a small First Nations community.
(3)
David Nordquist
[49]
The Applicant’s allegations against David
Nordquist are that his ex-wife is a cousin of Mr. Leon, and also that employees
under Mr. Nordquist’s supervision have tried to interfere with Chief Michel’s
role. Finally, Chief Michel alleges that Mr. Nordquist also disclosed
confidential information.
[50]
As to Mr. Nordquist’s family members, in this
case the links to any bias — like those Chief Michel raised regarding Ms.
Kenoras — are highly tenuous at best: Mr. Nordquist and his ex-wife have been
divorced for about four years, and, in any event, Mr. Nordquist believes that
she is only a second or third cousin of Mr. Leon.
[51]
Finally, Chief Michel, similar to the
allegations against Ms. Yarama, provides no particulars as to how the employees
under Mr. Nordquist’s supervision tried to interfere with his role, other than deposing
that senior members of the administration falling under the supervision of Mr. Nordquist
tried to interfere in his role as Chief. This mere allegation, without more
evidence, cannot support a finding of reasonable apprehension of bias,
particularly because Mr. Nordquist deposes that he did not supervise any senior
staff members at the relevant time.
[52]
Chief Michel further alleges that Mr. Nordquist
disclosed confidential information, and, in this regard, my analysis and
comments on Chief Michel’s unsupported allegations against Ms. Yarama also
apply (see paragraph 44 of these Reasons). As with the similar allegations
about confidentiality breaches against Ms. Yarama, an independent third party
disavows them as against Mr. Nordquist.
[53]
In sum, nothing alleged by Chief Michel rises to
the level of establishing a reasonable apprehension of bias for Mr. Nordquist.
(4)
Sandra Lund
[54]
Chief Michel alleges that Sandra Lund is biased
because she is Chief Michel’s cousin. For her part, Ms. Lund deposes that while
they are indeed cousins, they were raised in different areas, have never lived
in the same community, and do not see each other socially.
[55]
For the reasons explained above, I agree that a
mere family relationship in the context of a small First Nations community does
not give rise to reasonable apprehension of bias.
(5)
Hilda Jensen
[56]
Hilda Jensen recused herself from the panel in
the Bias Decision because she nominated Nelson Leon for Chief. She therefore neither
participated in the Panel’s deliberations of Mr. Leon’s Petition, nor the
Removal Decision. The Panel concedes that this was the correct position to take,
and therefore that Ms. Jensen would again sit out again should this same Panel
decide to rehear the matter. I agree with that stance and there is no need to
comment further on the allegation of bias against Ms. Jensen, who acknowledges the
bias.
III.
Costs
[57]
The Panel asks that the Band be ordered to pay
its costs on a full indemnity basis.
[58]
I make two observations with respect to costs.
First, it appears to me that the proper Respondent should have been the Band,
not the Panel. The Band was correctly named as the Respondent in the two
related proceedings Johnny and Johnny and Jules. There is no
substantial difference between the Respondent in these cases. The Band should
have been named as the Respondent. But it wasn’t.
[59]
Indeed, the evidence demonstrates that the Panel
was acting in the best interests of the Band and simply doing its job—namely, holding
a hearing and making a decision in response to a petition. The Panel, subsequently
reviewing the FCA decisions in both Johnny and Johnny and Jules,
recognized defects in its decision-making process. So it issued the
Nullification Letter.
[60]
Under all the circumstances, in my view the
fairest approach to costs is first of all, that Chief Michel must cover the
Panel’s costs on a partial indemnity basis according to the standard tariff for
this judicial review, namely under Column III to Tariff B.
[61]
Second, despite the fact that the Band was never
made a party to this application, the Band should pay any remaining costs reasonably
incurred by the Panel, or by its individual members, while acting in response
to this judicial review, as has been recognized to be appropriate in certain
circumstances (see Bellegarde v Poitras, 2009 FC 1212 at para 9; Knebush
v Maygard, 2014 FC 1247 at paras 67-69). This is one of those circumstances
where it would be unjust for tribunal members simply doing their job to hear
and decide an Election Rules petition, to then have to personally cover any costs
shortfall in defending legal proceedings filed against their tribunal.
IV.
Conclusion
[62]
This application for judicial review is
dismissed with costs payable to the Panel in accordance with these Reasons.
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