Docket: T-239-17
Citation:
2017 FC 868
Ottawa, Ontario, September 29, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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CHIEF GUS LOONSKIN
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Applicant
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and
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COUNCILLOR
LORNE TALLCREE AND LITTLE RED RIVER CREE NATION
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Chief Gus Loonskin of the Little Red River Cree
Nation [LRRCN] seeks judicial review of a Band Council Resolution dated
December 15, 2016 [BCR], which authorized a by-election for the vacant position
of Band Councillor. The by-election was held on February 1, 2017, and Alfred
Seeseequon was elected by a large margin.
[2]
For the reasons that follow, I find that Chief
Loonskin should have availed himself of the appeal procedure prescribed by the Little
Red River Cree Nation Custom Election Code 2003 [Election Code] before
commencing this application for judicial review. This is sufficient to dispose
of the application. Furthermore, Chief Loonskin has not demonstrated that the
BCR was invalid, or that members of the LRRCN received insufficient notice of
the nomination meeting that took place on January 3, 2017. The application is
therefore dismissed.
II.
Background
[3]
Gus Loonskin is Chief of the LRRCN, a First
Nation comprising approximately 5,000 members in Northern Alberta near Wood
Buffalo National Park. Approximately 3,530 members live on the reserve.
[4]
Solomon St. Arnault was elected Band Councillor
on May 14, 2015, but died in May 2016. At the time of his death, the next band
election was approximately three years in the future. On November 14, 2016,
Councillor St. Arnault’s family wrote to the Chief and Council to request that
the vacancy be filled. The need for a by-election was discussed at a band
council meeting the same day. Chief Loonskin received notice of the meeting,
which was described as “Chief & Council Meeting –
Finance – 2nd Quarter Financials; Health”, by e-mail. However, he did
not attend.
[5]
On December 2, 2016, Chief Loonskin received an
e-mail message which attached calendars for December 2016 and January 2017. The
calendars indicated that a meeting was scheduled for December 15, 2016 on the
subject of “Ag. Benefits w/ Michael Nanooch”.
The calendars also indicated that on January 3, 2017, there would be “By-Election Nominations; 1 Council member for Fox Lake (All
Communities)”, and January 17 would be “By-Election
Day for 1 Fox Lake, Councilor [sic] (All 3 communities)”.
[6]
At the band council meeting that took place on
December 15, 2016, seven councillors approved the BCR confirming that a
nomination meeting would be held on January 3, 2017 and a by-election on
January 17, 2017. Chief Loonskin was absent and did not sign the BCR.
[7]
The Notice of Nomination Meeting for the
by-election was distributed by facsimile on December 16, 2016 at 3:44 p.m.
However, most offices of the LRRCN were closed for the Christmas break from
December 16, 2016 at 3:00 p.m. until January 3, 2017. According to Chief
Loonskin, many members of the community were on their trap-lines at this time,
and would not have seen the notice.
[8]
At the nomination meeting on January 3, 2017, 16
nominations were received for the vacant position of Band Councillor. The
by-election was subsequently postponed by the LRRCN Electoral Officer to
February 1, 2017. The by-election took place on February 1, 2017, and Alfred
Seeseequon won by a margin of 289 votes (out of 625 ballots cast).
III.
Issues
[9]
This application for judicial review raises the
following issues:
A.
Should Chief Loonskin have availed himself of
the appeal procedure prescribed by the Election Code?
B.
Was the BCR adopted on December 15, 2016 valid?
C.
Did members of the LRRCN receive sufficient
notice of the nomination meeting?
IV.
Analysis
A.
Should Chief Loonskin have availed himself of
the appeal procedure prescribed by the Election Code?
[10]
Section 21 of the Election Code provides as follows:
Within seven (7) days following an election
and the posting of the written statement by the electoral officer, a candidate
may appeal the outcome of an election.
[11]
The Election Code defines “Candidate” as “a person who
has been properly nominated for election as Chief or Councillor in accordance
with the procedures and regulations as herein provided”. The parties
agree that Chief Loonskin was not a “Candidate”
in the by-election that took place on February 1, 2017. However, they also
agree that this would not in itself have precluded him from appealing the
outcome. As the Federal Court of Appeal held in Wolfe v Ermineskin, 2001
FCA 199 at paragraph 6:
[…] the Regulations do not preclude the
Board from properly investigating a complaint in a fair manner, including,
where appropriate, by providing an opportunity for a person who was not a
candidate in the election to put before the Board evidence in support of the
complaint.
[12]
In Horseman v Horse Lake First Nation,
2015 FCA 122, a band’s election regulations specified that an appeal could be
brought only by candidates and electors who voted in the election.
Nevertheless, the Federal Court of Appeal ruled as follows (at para 19):
[…] even if it could have been shown that
Mr. Horseman had no appeal right under section 57 of the Election Regulations
because he did not vote in the Election, the record contains no evidence that
he took any steps to see whether another candidate, or an Elector who did vote
in the Election, would have been prepared to file a Notice of Appeal containing
his concerns and grounds of appeal. Accordingly, we cannot to [sic]
accept Mr. Horseman’s assertion that access to the appeal mechanism under
Election Regulations was unavailable to him.
[13]
Chief Loonskin argues that the grounds for appeal
specified in s 21 of the Election Code do not encompass his concerns regarding
the validity of the BCR and the alleged lack of sufficient notice of the
nomination meeting. The Election Code permits an appeal to be brought only on
the following grounds:
• a
candidate in the election was not eligible to be a candidate by virtue of these
provisions,
• a
candidate in the election was nominated by persons not eligible to nominate,
• person(s)
who voted were not eligible to vote,
• person(s)
eligible to vote were not allowed to vote, or
• a
candidate was practicing unfair and unacceptable or corrupt election practices,
for example: bribery, threats or intimidation of electors, electoral officer,
polling clerks, or other persons assisting in the election.
[14]
Challenges to band election results should be
dealt with swiftly, so that the community’s leadership is not put in doubt for
an extended period of time (D’Or v St Germain, 2013 FC 223 at paras 24
and 25; aff’d, D’Or v St Germain, 2014 FCA 28). Provisions that articulate
grounds for appeal should be understood as permissive, rather than exhaustive.
In my view, these considerations apply to the present case, and Chief Loonskin
was not precluded by the Election Code from bringing an appeal on the grounds
that the by-election had been improperly called with insufficient notice.
[15]
I am therefore satisfied that Chief Loonskin
should, either by himself or in concert with others, have appealed the result
of the by-election to the LRRCN Appeal Board before commencing this application
for judicial review.
[16]
This is sufficient to dispose of the
application. However, because the merits were fully argued by the parties, and
may be dealt with briefly, they are addressed below.
B.
Was the BCR adopted on December 15, 2016 valid?
[17]
The parties disagree on the standard of review
to be applied to the validity of the BCR. Chief Loonskin argues that the
validity of the BCR is a true question of jurisdiction, to which the standard
of correctness applies (citing Peguis First Nation v Bear, 2017 FC 179
at paras 28-30).
[18]
In Fort McKay First Nation v Orr, 2012
FCA 269, the Federal Court of Appeal said the following regarding the standard
of review to be applied to a band council’s assessment of its decision-making
powers:
[10] […] The Supreme Court has recently
suggested that the characterization of a legislative provision as
“jurisdictional” for the purposes of judicial review should be avoided: Halifax
(Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC
10 at paragraph 34. It has also recently queried whether any “true questions of
jurisdiction” warranting correctness review exist: Alberta (Information and
Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61. Our
Court has held that so-called “jurisdictional” issues are usually issues of
interpreting legislative wording, a matter on which reasonableness is the
standard: Public Service Alliance of Canada v. Canadian Federal Pilots Assn.,
2009 FCA 223. Indeed, on issues of interpreting legislative wording, there is a
“presumption” that the standard of review is “reasonableness”: Alberta
Teachers' Association, at paragraph 34.
[19]
I am therefore satisfied that the validity of
the BCR is to be reviewed by this Court against the standard of reasonableness.
The Court will intervene only if the decision falls
outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[20]
Questions of procedural fairness are subject to
review by this Court against the standard of correctness (Crawler v Wesley
First Nation, 2016 FC 385 at para 19; Desnomie v Peepeekisis First
Nation, 2007 FC 426 at para 11; Weekusk v Wapass, 2014 FC 845 at
para 10).
[21]
Chief Loonskin concedes that the meeting which
took place on December 15, 2016 was a properly-convened band council meeting.
However, he complains that it was not convened for the purpose of calling a
by-election. Instead, its stated purpose was to review a settlement proposal
concerning agricultural benefits, with the band’s legal counsel in attendance.
[22]
Chief Loonskin admits that there are no
provisions in the Election Code or elsewhere that specify a procedure for
adopting band council resolutions to call a by-election. He relies on what he
describes as standard practice for corporate governance, and insists that
notices of band council meetings must specify the precise subjects to be
discussed. He also maintains that band council resolutions may be adopted only
after a formal motion, with a mover and seconder.
[23]
Holly Laboucan, Director of Nation Programs and
Services for the LRRCN, deposes in her affidavit that the band council meeting
of December 15, 2016 was convened in accordance with established practices and
procedures, which she describes as follows:
i) Administrative staff identifies when Council meetings are
needed based on discussions with Council members, LRRCN Directors and managers,
government parties, or corporate parties;
ii) I then direct Administrative staff in relation to the
preparation of Council calendars, which serve as notice to Council of their
meeting schedule;
iii) When Council calendars are prepared, and when meeting
dates or locations are altered, administrative staff email the Council
calendars to all members of Council, except any Councillors who prefer to pick
up hard copies;
iv) Updated Council calendars are also regularly handed out to
Council at Council meetings;
v) When there is an upcoming Council meeting, LRRCN
administrative staff take the additional step of following up directly with
each Council member by phone or email to confirm they have received the Council
calendars, confirm their attendance, and arrange travel expenses if the
Councillor plans to attend the meeting.
[24]
The Election Code does not distinguish between
regular band council meetings and special meetings for the purpose of calling
by-elections. Nor does the Chief have a particular role in convening band
council meetings. The LRRCN notes that assigning a special role to the Chief
would be inconsistent with the band’s democratic process, as it may allow the
Chief to manipulate the timing of meetings to favour his own agenda (citing Balfour
v Norway House Cree Nation, 2006 FC 213 at para 41).
[25]
Procedural fairness is to be assessed in
accordance with the factors found in Baker v Canada (Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraphs 23-28. In this case, the duty
owed to Chief Loonskin was at the lower end of the spectrum. The band council
meeting of December 15, 2016 did not concern the adjudication of his or any
other person’s rights. Chief Loonskin had no legitimate expectation of a
specific procedure for convening a meeting to address the need for a
by-election.
[26]
Pursuant to s 22 of the Election Code, the Chief
and Council were under an obligation to call a by-election if the next election
was more than six months in the future. Here, the next election was
approximately three years away. Moreover, Councillor St. Arnault’s family had
written to the Chief and Council asking that the vacancy be filled.
[27]
The need for a by-election was first discussed
at a band council meeting on November 14, 2016, which Chief Loonskin did not
attend. The calendars distributed on December 2, 2016 indicated the dates of
the nomination meeting and the by-election. Even if Chief Loonskin understood
that the meeting of December 15, 2016 was primarily concerned with agricultural
benefits, he was presumably aware that other matters might arise. He
nevertheless chose not to attend.
[28]
Nothing in the Election Code or elsewhere
required advance notice of all subjects to be discussed at a band council
meeting, or for the adoption of a band council resolution to be preceded by a
formal motion with a mover and a seconder. A quorum was present at the meeting
of December 15, 2016, and all seven Councillors who were present at the meeting
signed the BCR.
[29]
Courts are reluctant to interfere with a band’s
autonomous process for electing its government (Johnny v Adams Lake Indian
Band, 2017 FC 156 at para 28). In this case, I am not persuaded that there
are any grounds upon which the Court might set aside the BCR.
C.
Did members of the LRRCN receive sufficient
notice of the nomination meeting?
[30]
Chief Loonskin says that members of the LRRCN
received insufficient notice of the nomination meeting that took place on
January 3, 2017. He argues that notices were posted while LRRCN offices were
closed for the Christmas break, and that some band members were out trapping.
[31]
Chief Loonskin has offered little in the way of
evidence to support his contentions. In his affidavit, he provides only
uncorroborated hearsay:
Early in January, 2017, I was advised by
members of the Little Red River Cree Nation that they were not aware of a
‘bye-election’ [sic] taking place at Little Red River Cree Nation and if
they had been aware, they would have run for office.
[32]
This may be contrasted with the detailed account
provided by Ms. Laboucan in her affidavit of the various ways in which members
of the LRRCN were apprised of the nomination meeting, and the large number of
candidates who sought the position. Evidence was provided regarding the
frequency with which LRRCN offices were visited over the Christmas break. Only
29 members of LRRCN hold registered trap-lines. A total of 16 candidates were
nominated on January 3, 2017, and no formal complaints or appeals were
submitted by band members following the by-election.
[33]
The preponderance of the evidence establishes
that members of the LRRCN were given sufficient notice of the nomination
meeting. The written Notice complied with s 8 of the Election Code, and
provided the date, time, duration and location of the meeting. It specified the
position that was open for nomination, and provided contact information for the
LRRCN Electoral Officer. It informed members of where they could obtain a copy
of the Election Code. The Notice of Postponement similarly met the requirements
of the Election Code.
[34]
I am therefore not persuaded that members of the
LRRCN received insufficient notice of the nomination meeting that took place on
January 3, 2017.
V.
Conclusion
[35]
Chief Loonskin should have availed himself of
the appeal procedure prescribed by the Election Code before commencing this
application for judicial review. This is sufficient to dispose of the
application. Furthermore, Chief Loonskin has not demonstrated that the BCR
adopted on December 15, 2016 was invalid, or that members of the LRRCN received
insufficient notice of the nomination meeting that took place on January 3,
2017. The application is therefore dismissed.
[36]
The LRRCN has requested an opportunity to make
written submissions regarding costs. Ordinarily, the Court expects parties to
address costs at the hearing of the application for judicial review. In this
case, counsel for the LRRCN advised the Court that there are factual
circumstances, some of them sensitive, which may favour an enhanced award of
costs. The LRRCN did not wish to adduce this information unless it was
successful in its defence of the application.
[37]
In these unusual circumstances, the Court will
grant the parties an opportunity to file written submissions regarding costs
not exceeding five (5) pages within fourteen (14) days of the date of this
judgment. Responding submissions, not exceeding three (3) pages, may be filed
within seven (7) days thereafter.
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