Docket: T-657-24
Citation: 2025 FC 1908
Ottawa, Ontario, December 1, 2025
PRESENT: The Honourable Mr. Justice Régimbald
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BETWEEN: |
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LEE THOMPSON |
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Applicant |
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and |
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MOHAWK COUNCIL OF KAHNAWÀ:KE
KAHNAWÀ:KE CANNABIS CONTROL BOARD |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Lee Thompson [Applicant] filed a pre-eligibility application form for a cannabis Dispensary License to be issued by the Kahnawà:ke Cannabis Control Board [Board]. His wife Lauren Phillips [file T-723-24 (in abeyance)] and an employee, Trudy Stacey [file T-724-24 (in abeyance)], also filed pre-eligibility application forms for Dispensary Licenses.
[2] The pre-eligibility application constituted the first step in the licensing process. Following examination, the Board was to release a list of applicants ultimately eligible to participate in a lottery, following which three Dispensary Licenses would be issued by the Board for sale of cannabis products on the Territory of Kahnawà:ke.
[3] The pre-eligibility application form included a Declaration of a Natural Person [Declaration] that explicitly asked whether an applicant had “a close personal or business relationship with any other person(s) who are also submitting a pre-eligibility form […]”
. A “close personal or business relationship”
includes a spouse or an employee.
[4] The Applicant claims not to have read nor filled his pre-eligibility application form. It was filled by his spouse Ms. Phillips together with their lawyer who provided assistance. Mr. Thompson, Ms. Phillips and Ms. Stacey all signed individual pre-eligibility application forms and checked the box indicating that they had no “close personal or business relationship”
with anyone having submitted a pre-eligibility application form. Their lawyer submitted all three pre-eligibility application forms to the Board together and at the same time, on January 31, 2024.
[5] The Board rejected the Applicant’s pre-eligibility application on the basis that his Declaration did not accurately reflect his “close personal or business relationship”
with Ms. Phillips and Ms. Stacey and that he “was not truthful in [his] declaration and has a close personal/close business relationship with other applicants and therefore the board rejects [his] application”
[Decision]. Ms. Philipps and Ms. Stacey also received the same Decision from the Board.
[6] The Applicant seeks judicial review on three main grounds: a) the Board approved the pre-eligibility application form of two brothers who likewise checked (or left unchecked) the box indicating that they had no “close personal or business relationship”
with anyone else having submitted a pre-eligibility application form; b) the Board breached the Applicant’s right to procedural fairness in failing to allow him to correct his pre-eligibility application form; and c) there is a reasonable apprehension of bias against a Board member because the Applicant was responsible for her son’s imprisonment on criminal charges.
[7] For the reasons that follow, the application for judicial review is dismissed.
II. Background Facts
[8] The Board is responsible for the emission of three cannabis Dispensary Licenses on the Territory of Kahnawà:ke. Since the Board anticipated that more than three applicants would apply to be granted a license, a pre-eligibility process was adopted to serve as a gatekeeper role to ensure that the applicants for a Dispensary Licence met certain basic criteria, before being allowed to move forward to the second stage of the process which consists of a lottery determining the three successful candidates (Affidavit of Mr. Ferrante at paras 9-11, Respondent’s Record at p 4).
[9] The Applicant, Ms. Phillips and Ms. Stacey all filed pre-eligibility application forms for a cannabis Dispensary Licence. This pre-eligibility application form constituted the first step in the licensing administration process. Upon review of all application forms, the Board was to release a list of applicants deemed eligible to apply for one of the three Dispensary Licenses that were available for issuance within the Territory of Kahnawà:ke, and that would later be awarded following a lottery.
[10] The pre-eligibility application form included a Declaration that explicitly asked whether an applicant has “a close personal or business relationship with any other person(s) who are also submitting a pre-eligibility form […].”
The Applicant checked off the box indicating no such relationships.
[11] The purpose of the Declaration was to prevent an applicant from unfairly increasing their odds of success in the eventual lottery by submitting multiple applications in association with individuals with whom they have a close business or personal relationship (Affidavit of Mr. Ferrante at para 13, Respondent’s Record at pp 4-5).
[12] The Applicant, his spouse Ms. Philipps, and his employee Ms. Stacey all filled pre-eligibility application forms with the assistance of their common lawyer Me Schneider. The Applicant claims that he did not fill nor adequately read the pre-application form, as it was filled by his spouse (Affidavit of Mr. Thompson at paras 3-4, Application Record at p 13; Cross-examination of Mr. Thompson, Respondent’s Record at p 20). In cross-examination, however, Mr. Thomson said that he asked Me Schneider to fill out the form and process it and that he does not know what parts were filled by Ms. Phillips and what parts were filled by Me Schneider (Cross-examination of Mr. Thompson, Respondent’s Record at pp 19-20). Nevertheless, all three checked the box declaring that they had “no close personal or business relationship with any other person(s) who are also submitting a pre-eligibility form […].”
Me Schneider submitted all three applications together with the Board on January 31, 2024.
[13] Me Schneider states in his affidavit that he was advised by Matthew Ferrante, Operations Manager for the Board at the time, that if there were any issues with the applications he submitted, he would be advised and granted thirty days to remedy them (Affidavit of Me Schneider at paras 8-9, Application Record at pp 138, 139). For this reason, the Applicant submits that he expected that if a change was needed to allow him to remain eligible for a Dispensary License, he would be notified in due course and given a reasonable opportunity to make any required change.
[14] On the other hand, Mr. Ferrante states in his affidavit that he did in general terms tell Me Schneider that he would be advised and given thirty days to remedy something missing in his clients’ pre-eligibility application forms, but at no time this statement was intended to extend to an opportunity to remedy a false Declaration (Affidavit of Mr. Ferrante at para 14, Respondent’s Record at p 5).
[15] On March 14, 2024, the Applicant, Ms. Phillips, and Ms. Stacey, were all notified via e-mail that their pre-eligibility application forms had been rejected on the premise that “the Declaration of a Natural Person [they] filed in support of [their] pre-eligibility application did not accurately reflect [their] close personal or business relationship to other applicants”
.
[16] On or about March 19, 2024, the Board issued its pre-eligibility list. The list approved the pre-eligibility for Mr. Roger Stacey and Mr. Scott Stacey as distinct applicants. Roger and Scott Stacey are brothers.
[17] In his Declaration, Roger Stacey, like the Applicant, checked the box indicating no “close personal or business relationship”
with any other person submitting a pre-eligibility application form. His brother, Scott Stacey, left that box blank on his pre-eligibility application form.
[18] The minutes of the Board discussing Roger Stacey’s pre-eligibility application make no mention of his sibling relationship to Scott Stacey. Similarly, the minutes of the Board discussing Scott Stacey’s pre-eligibility application also make no mention of his sibling relationship to Roger Stacey. Nor is the existence of a sibling relationship mentioned in the Board’s decisions with respect to either Stacey brothers.
[19] In his affidavit of May 14, 2024, Mr. Ferrante states that “it is well known in the community that Roger Stacey and Scott Stacey, although they are brothers, are estranged from each other and do not have a close relationship”
(Affidavit of Mr. Ferrante at para 15, Respondent’s Record at p 5).
[20] In cross-examination, Mr. Ferrante stated that he was present during the deliberation of the Board, including for the decisions on the Stacey brothers as well as that of the Applicant, Ms. Phillips and Ms. Stacey.
[21] Mr. Ferrante stated that the Board was aware that Ms. Phillips was the Applicant’s wife and that Ms. Stacey was working for him. On that basis, the Board decided that the Applicant made a false Declaration which was enough to reject his pre-application (Cross-examination of Mr. Ferrante, Applicant’s Record at pp 157-160, 183).
[22] As for the Stacey brothers, the Board was aware that the brothers were estranged (Cross-examination of Mr. Ferrante, Application Record at pp 170-174, 176, 188). Mr. Ferrante called both brothers after the Board’s deliberation on their pre-eligibility to ensure that the Board’s understanding was accurate, and before the decisions were sent to all applicants on March 11, 2024 (Cross-examination of Mr. Ferrante, Application Record at pp 170-174, 176-179).
[23] Darlene Alfred is one of the three members of the Board and one of the signatories of the Decision. In 2013, her son pleaded guilty and was sentenced to prison in a matter in which the Applicant was a principal witness.
[24] On that basis, the Applicant alleges that Ms. Alfred’s participation in the Decision raises a reasonable apprehension of bias. In his cross-examination, Mr. Ferrante stated that during deliberation, there was never any mention of the Applicant being a witness to a criminal act leading to Ms. Alfred’s son’s arrest and conviction (Cross-examination of Mr. Ferrante, Application Record at pp 191-192).
III. Issues and Standard of Review
[25] The Applicant raises the following issues:
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a)Was there a marked difference in the manner in which the Board addressed the notion of a “close personal relationship”
when assessing the pre-eligibility of Roger and Scott Stacey as opposed to the Applicant?
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b)Did the Board act in a manner that was procedurally unfair?
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c)Does Ms. Alfred’s participation in the Board’s decision raise a reasonable apprehension of bias given that her son was sentenced to prison as a result of the Applicant being a Crown witness?
[26] The Applicant submits that the applicable standard of review is correctness. To the extent that the Board’s decision may have breached the Applicant’s procedural rights or that the presence of Ms. Alfred raises a reasonable apprehension of bias, I agree.
[27] On a procedural fairness issue, as held in Caron v Canada (Attorney General), 2022 FCA 196 at paragraph 5, no standard of review is applied, but the review of allegations of breaches of procedural fairness is best reflected in the standard of correctness: “[w]hen engaging in a procedural fairness analysis, [the] Court must assess the procedures and safeguards required, and, if they have not been met, the Court must intervene”
(see also Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 33–34, 54 [Canadian Pacific]; Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General), 2023 FCA 74 at para 57). As reiterated in Canadian Pacific, the role of the reviewing court on procedural fairness issues is simply to determine whether the procedure that was followed was fair, having regard to the particular circumstances of the case: “[t]he ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”
(at paras 54, 56).
[28] On the substance of the decision, however, the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]. To withstand judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). The decision must be read holistically and contextually, in light of the evidence, the submissions and the context in which it was rendered (Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 at para 47 [Pepa]; Vavilov at paras 94, 97). A decision may be unreasonable if the decision maker misapprehended the evidence before it (Vavilov at paras 125–126). However, the reviewing Court must refrain from “reweighing and reassessing the evidence considered by the decision maker”
(Vavilov at para 125). In determining reasonableness, the reviewing Court must not create its “own yardstick”
and use it to measure what the decision maker did (Pepa at para 48; Vavilov at para 83, and Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para 40). Reasonableness review is not a “rubber-stamping”
exercise, it is a robust form of review (Vavilov at para 13). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100). Any alleged flaws must be “sufficiently central or significant to render the decision unreasonable”
or cause the “reviewing court to lose confidence in the outcome reached”
(Vavilov at paras 100, 106; Pepa at para 49).
IV. Analysis
[29] In 2008, the Mohawk Council of Kahnawà:ke enacted the Cannabis Control Law [Law]. The purpose of the Law is, inter alia, to protect the health and safety of the community. The Law regulates the eligibility to cultivate, distribute, sell, possess and use cannabis within the Territory of Kahnawà:ke. The Law created the Board for the purpose of regulating, enforcing and administering the Law.
[30] On December 4, 2023, the Mohawk Council of Kahnawà:ke enacted the Regulation Concerning Dispensaries and Dispensary Licenses [Regulation]. Section 3 of the Regulation provides that only three Dispensary Licenses will be issued by the Board following a procedure set-out in the Regulation.
[31] Of particular importance, Section 14 of the Regulation provides that only persons deemed eligible by the Board may apply for a Dispensary Licence, applying the criteria found at Section 16.16 of the Law. Section 18 of the Regulation then provides that:
18. The Board may reject preliminary eligibility forms if more than one form is submitted by:
a. the same person or group of persons; or
b. a person or group of persons who have a close personal or business relationship with another group of persons who have also submitted a preliminary eligibility form.
[32] Section 19 of the Regulation provides that “[t]he Board will decide, based on available information, whether a close personal or business relationship exists for the purposes of section 18(b).”
[33] Section 2 of the Regulation provides that a “close personal relationship”
“means an ongoing romantic or intimate personal relationship that can include, but is not limited to, dating, living together or being a partner or significant other as well as immediate familial relationships, whether by blood, marriage or adoption.”
[34] In turn, Section 1 of the Regulation states that the definitions provided in the Law have the same meaning as in the Regulation. Section 8.1 of the Law defines “family member”
as “a spouse, parent, child or sibling.”
[35] At the end of the process, under Section 46 of the Regulation, a lottery will be held to determine which of the approved applications will be granted a Dispensary Licence for a maximum term of five (5) years.
A. There is no breach to procedural fairness
[36] Procedural fairness applies to administrative decisions that affect “the rights, privileges or interests of an individual”
(Cardinal v Director of Kent Institution, [1985] 2 S.C.R. 643 at p 653; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 20 [Baker]). The content of procedural fairness to a specific situation, however, “is eminently variable and its content is to be decided in the specific context of each case”
(Knight v Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at p 682; Baker at para 21). At a minimum, when a duty of fairness arises, it requires an opportunity to participate in the process, and that the decision is free from a reasonable apprehension of bias (Baker at paras 28, 33-34, 45).
[37] In the context of Indigenous law, the content of the duty of fairness must be “tailored to the particular circumstances and context of the [decision maker and that context] should include judicial respect for relevant custom”
(Bruno v Samson Cree Nation, 2006 FCA 249 at para 20 [Bruno]; Heron v Salt River First Nation No 195, 2024 FC 413 at para 23 [Heron]). Indeed, a First Nation “should be granted significant latitude to choose its own procedures”
(Bruno at para 22; Labelle v Chiniki First Nation, 2022 FC 456 at paras 91–102) and “[j]udicial intervention in Indigenous decision-making processes should be avoided whenever possible to encourage Indigenous self-government”
(Heron at para 33; Bellegarde v Carry the Kettle First Nation, 2024 FC 699 at para 140 [Bellegarde]).
[38] Under Section 18 of the Regulation, the Board has discretion in deciding whether to disqualify an applicant because another pre-eligibility application form was submitted by another person having a “close personal or business relationship”
. There is no obligation on the Board to automatically disqualify anyone. Also, under the Law and Regulation, no process or limitation exists in relation to the source or type of information on which the Board may rely in making its decisions, and there is no impediment on Board members to rely on their own personal knowledge.
[39] Indeed, under Section 19 of the Regulation, the Board may rely on “available information”
, and the Applicant concedes that “Kahnawà:ke is a small community and everyone knows everyone”
(Affidavit of Mr. Thompson at para 5, Application Record at p 13).
[40] In this case, the reasonableness of the substance of the Board’s decision is not contested. There is no issue that, in relying on their own personal knowledge of the community, the Board erred in ruling that Ms. Phillips is the Applicant’s spouse and that Ms. Stacey is the Applicant’s employee. There is also no allegation that the Board erred or unreasonably concluded that the Stacey brothers are estranged.
[41] The Applicant submits that the central issue concerns the interpretation of the term “close personal relationship”
as employed in the Regulation and the decisions rendered by the Board, and whether this term was interpreted and applied to him in a manner that complied with the Board’s obligation of procedural fairness.
[42] While it is not disputed that the Applicant did check the box stating that he did not have a “close personal or business relationship with any other person also submitting a pre-eligibility form”
, and it is conceded that the Applicant made an error in this regard, the Applicant alleges a breach of procedural fairness because : a) he was not able to correct his mistake as offered by Mr. Ferrante; and b) the Board did not disqualify Roger and Scott Stacey for having made the same mistake.
[43] On the issue of the Board’s failure to allow the Applicant to correct his mistake, the Applicant submits that Mr. Ferrante specifically told his lawyer that an opportunity to correct any issue would be granted if any issue arose in the review process.
[44] Indeed, Me Schneider states in his affidavit that Mr. Ferrante told him that the Applicant would be notified of any issue with his application within thirty days following the close of the pre-eligibility application period and would be given an opportunity to address any deficiency. The Applicant was never advised of any issue with his application nor provided any opportunity to remedy the situation, thereby breaching his right to procedural fairness.
[45] However, Mr. Ferrante states in his affidavit that he did in general terms tell Me Schneider that he would be advised and given thirty days to remedy something “missing”
in the Applicant’s pre-eligibility application, but at no time advised that he would be given thirty days to remedy a false Declaration (Affidavit of Mr. Ferrante at para 14, Respondent’s Record at p 5).
[46] I do not find that the evidence is conflicting. Mr. Ferrante did tell Me Schneider that he would advise and give thirty days to correct anything “missing”
. But I find Mr. Ferrante’s evidence more convincing in the sense that there was nothing “missing”
in the Applicant’s pre-eligibility application form. There was a false Declaration. That is the reason why Mr. Ferrante never raised the issue with Me Schneider. While Mr. Ferrante may have offered Me Schneider and the Applicant an opportunity to correct anything “missing”
in his pre-eligibility application form, I find that Mr. Ferrante did not offer to advise and give thirty days to “correct”
or otherwise remedy a false Declaration.
[47] As a result, Mr. Ferrante’s statement to Me Schneider that he would advise and give thirty days to correct anything “missing”
in the pre-eligibility application form did not give rise to a legitimate expectation that Mr. Ferrante would also advise and give time to remedy a false Declaration. It is not reasonable for the Applicant or Me Schneider to rely on Mr. Ferrante’s statement to believe that Mr. Ferrante would advise and request a “correction”
to a pre-eligibility application form on an important issue that they know, or ought to have known, existed such as a false Declaration, which was clearly identified in the Regulation as being a mandatory element of the licensing process. The representation made by Mr. Ferrante on the potential to correct anything “missing”
with the pre-eligibility application form was not a sufficiently “clear, unambiguous, and unqualified promise that a certain procedure will be followed”
(Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 95–96) such as to raise a reasonable legitimate expectation that Mr. Ferrante would allow the Applicant to correct his false Declaration.
[48] In my view, and as ruled by the Board, the Applicant’s disqualification did not result from a “missing”
element in his pre-eligibility application form, but rather because the Applicant negligently provided a false Declaration. The pre-eligibility application form is clear that, upon signature, an applicant declares the content to be “true and correct”
, including a statement of having read and understood the Law and the Regulation and that the applicant has no “close personal or business relationship”
with any other applicant. The Applicant admitted in cross-examination to not having read the Law nor the Regulation with sufficient attention (Cross-examination of Mr. Thompson, Respondent’s Record at pp 17-18, 23-24). The Applicant also admitted that the handwriting on the pre-eligibility application form is that of his wife who filled its content for him and that he only signed the form thereafter without reading it closely (Cross-examination of Mr. Thompson, Respondent’s Record at pp 20-24). Consequently, the Applicant’s disqualification is a result of his own making.
[49] The Board did not hold the Stacey brothers to a different and lower standard. Section 18 of the Regulation grants the Board the discretion to disqualify an applicant because another pre-eligibility form has been submitted by another person having a “close personal or business relationship”
. The Board is not required to disqualify everyone in that context. The Board also did not apply a different definition to the term “family member”
under the Law or the term “close personal relationship”
under the Regulation. Instead, and knowing the community, the Board members were aware that the brothers were “family members”
but were also aware that they were estranged and therefore could not have coordinated their efforts to increase their collective odds to win the lottery for a Dispensary License. On the contrary, relying on the same personal knowledge, the Board members were well aware that Ms. Phillips was the Applicant’s wife and Ms. Stacey was his employee.
[50] That is in essence the Board’s Decision. The accuracy of the facts on which the Board relied, although based on their personal knowledge, is not contested. Indeed, again, as admitted by the Applicant: “Kahnawà:ke is a small community and everyone knows everyone”
(Applicant’s Affidavit at para 5, Application Record at p 13) and there is no allegation that the Board’s understanding of the facts applicable to this case is wrong.
[51] The Applicant’s right to procedural fairness was therefore not breached. Mr. Ferrante did not breach procedural fairness by failing to allow the Applicant to remedy his false Declaration because he did not make a “clear, unambiguous, and unqualified promise that a certain procedure will be followed”
such as giving the Applicant an opportunity to remedy a false Declaration; and the Board did not breach the Applicant’s right to procedural fairness by treating him differently than the Stacey brothers. The situations are completely different.
[52] The Applicant was or ought to have been aware that he was providing a false statement on his pre-eligibility application form. I note that Mr. Thompson, in his cross-examination, stated that he was initially not aware that Ms. Phillips was also filing a pre-application form and does not recall when he learned about it, but that it was after him (Cross-examination of Mr. Thompson, Respondent’s Record at p 27). However, Mr. Thompson also stated in cross-examination that he knew his wife had also hired Me Schneider (Cross-examination of Mr. Thompson, Respondent’s Record at p 19). In any event, the evidence is inconclusive as to when Mr. Thompson learned that his wife was also filing a pre-eligibility application form, but there is no doubt that all three forms were filed together by Me Schneider on January 31, 2024. I therefore conclude that Me Schneider was aware, and the Applicant must also have been notified, by the filing date of January 31, 2024, that the three related pre-eligibility application forms had been submitted together (especially since the Applicant’s wife and Me Schneider filled his own pre-eligibility application form). Nevertheless, the Applicant did not contact the Board, prior to its decision, to take remedial measures or to correct what he ought to have known was a false Declaration. Consequently, it was not unreasonable for the Board to find that the Applicant was disqualified for having made a false Declaration.
[53] On the other hand, the Stacey brothers were not making a false Declaration because the Board’s understanding, which remains uncontested in this judicial review, is that the brothers are not on speaking terms. Neither of them could have known that the other brother was also filing a pre-eligibility application form, and so both could in good faith check the box (or not check the box at all) stating that they were not aware of a “close personal relationship”
with any other person also filing a pre-eligibility application form. In doing so, they did not provide a false statement in the same manner or substance as did the Applicant. The Stacey brothers therefore did not file a disqualifying false Declaration as the Applicant did.
B. The presence of Ms. Alfred on the Board does not raise a reasonable apprehension of bias
[54] The standard for reasonable apprehension of bias varies depending on the context and the type of function performed by the administrative decision maker (Baker at para 47). As held by the Supreme Court of Canada in Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394-395:
[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... [T]hat 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 [the decision maker], whether consciously or unconsciously, would not decide fairly.
I can see no real difference between the expressions found in the decided cases, be the ‘reasonable apprehension of bias’, “reasonable suspicion of bias”, or “real likelihood of bias”. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the ‘very sensitive or scrupulous conscience’.
[…]
The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in light of its experience and of that of its technical advisers.
[55] In the context of Indigenous decision makers, the issue of an apprehension of bias must be evaluated in context. In Commanda v Algonquins of Pikwakanagan First Nation, 2018 FC 616 [Commanda], the Federal Court held that:
[33] The Federal Court of Appeal elaborated further on this “conflict of interest” principle and confirmed the operation of the principle of “reasonable apprehension of bias” in paragraphs 42 and 43 of the decision but set the criteria of “reasonableness” in the context of the realities of a small community. The Federal Court further elaborated in Michel v Adams Lake Indian Band Community Panel, 2017 FC 835, 283 ACWS (3d) 681:
[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.
[56] Therefore, in the context of a small First Nation, it is not realistic to expect the same degree of objectivity and impartiality that one would expect from the judiciary (Saulteaux v Carry the Kettle First Nation, 2022 FC 1435 at para 78, relying on Hall v Kwikwetlem First Nation, 2020 FC 994 at para 48; see also Bellegarde at para 150). That context applies in this case, where the Applicant admitted that “Kahnawà:ke is a small community and everyone knows everyone”
(Affidavit of Mr. Thompson at para 5, Application Record at p 13).
[57] In this case, the Applicant asserts that Ms. Alfred’s participation in the Board Decision raises a reasonable apprehension of bias because of the role he played as the main witness in her son’s conviction and sentence to prison in 2013.
[58] The Applicant submits that the apprehension of bias in his situation is apparent. A reasonable person—having presented himself in Court as the principal witness in a criminal matter which culminated in the conviction and imprisonment of the son of one of the three Board members—would logically conclude that the Board member was incapable of rendering their decision fairly or impartially, whether or not this bias operated in a conscious or unconscious manner. This perception is only bolstered by the rejection of the Applicant’s pre-eligibility application form, and the ostensibly arbitrary significance the Board attributed to the notion of “close personal or business relationships”
.
[59] The Applicant submits that a perceivable conflict between Ms. Alfred and the Applicant extends beyond the ordinary family or work connections that are common among small First Nation communities. The Applicant’s involvement in the criminal conviction of Ms. Alfred’s son falls under the umbrella of what the Court in Commanda refers to as an “actual conflict”
and is serious enough to raise eyebrows and cast a reasonable apprehension of bias upon even members of a small and close-knit community like Kahnawà:ke.
[60] I disagree.
[61] First, as stated above, the Board did not arbitrarily apply a different standard to the Applicant as compared with the Stacey brothers.
[62] Second, as stated by Mr. Ferrante, the issue of the Applicant’s participation in the conviction of Ms. Alfred’s son was never raised before the Board (Affidavit of Mr. Ferrante at para 16, Respondent’s Record at p 5). Two other members also participated and agreed with the Decision (and the quorum for Board meetings is of two members being present: Section 14.1 of the Law). The criminal trial occurred more than ten years before and the Applicant was a witness to the proceedings. Ms. Alfred’s son pleaded guilty and was sentenced to 30 days in jail. The Applicant therefore never had to testify and there is no evidence as to whether his role had any impact in Ms. Alfred’s son’s guilty plea, especially since the victim was also in attendance at trial to testify (Cross-examination of Mr. Thompson, Respondent’s Record at pp 27-30). Most importantly, there is no evidence that Ms. Alfred was aware of the Applicant’s role or involvement as a witness in the case.
V. Conclusion
[63] For the reasons above, the application for judicial review is dismissed with costs.
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