Buffalo v. Cutknife, 2003 FCT 721

Date: 20030610

Docket: T-956-02

Citation: 2003 FCT 721

OTTAWA, ONTARIO, THIS 10^th DAY OF JUNE 2003

PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU

BETWEEN:

                       CHIEF VICTOR BUFFALO, on his own behalf and on behalf of the

SAMSON INDIAN BAND also known as SAMSON CREE NATION and the

SAMSON INDIAN BAND also known as SAMSON CREE NATION

                                                                                                                                                      Applicants

                                                                              - and -                          

                                                                 LENA CUTKNIFE

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The applicants seek an order quashing the June 16, 2002 decision of the Samson Election Appeal Board (the "Board") which ordered a new election to be held for the 12 positions of Councillor for the Samson Cree Nation (the "June 16 decision"). They also seek a declaration that there was no breach or violation of section 31 of the Samson Cree Nation Election Law (the "Election Law") respecting any of the candidates who stood for election to the Council.

[2]                 It must be noted that the respondent, Mrs. Lena Cutknife, who was a candidate in the election and made the complaint leading to the impugned decision of the Board, did not file a notice of appearance pursuant to rule 305 of the Federal Court Rule, 1998. No notices of appearance were filed on behalf of the Board or the individuals who made the decision either.

[3]                 Elections for the Samson Cree Nation Councillors are governed by the Election Law dated March 8, 1993.

[4]                 In accordance with section 19 of the Election Law, Chief and Council set May 14, 2002 as the date for the nomination meeting for the 2002 Councillors' election. Then, pursuant to sections 14 and 78 of the Election Law, Chief and Council appointed an Electoral Supervisor and a Board for the 2002 Councillors' election.

[5]                 The nomination meeting for candidates began at 9:00 a.m. on May 14, 2002, and was chaired by the Electoral Supervisor, Albert Angus, in accordance with section 22 of the Election Law. During the meeting, which was held until 6:00 p.m., 83 people were nominated as candidates for the 12 Councillor positions

[6]                 Before nomination closed on May 14, 2002, the Electoral Supervisor announced that he would give candidates 24 hours to provide their notarized photographs. He also gave Winston Northwest, the last candidate nominated, an extension of time to submit the $300.00 non-refundable election fees. This extension of time was based on the fact that Mr. Northwest had worked for the Samson Cree Nation the day before in relation to the Chief's own election, for which he was owed in excess of $300.00 by the Samson Cree Nation.

[7]                 The ballots for the May 27, 2002 election were subsequently printed. A poster with the photographs and names of all 83 candidates in alphabetical order was posted at the main entrance to the Samson Cree Nation office, in accordance with sections 40 and 41 of the Election Law.

[8]                 The election was held on May 27, 2002, and posters with the photographs and names of all 83 candidates in alphabetical order were posted in each polling booth, in accordance with section 41 of the Election Law and to assist voters who could not read.

[9]                 After recounts, Florence Buffalo, Victor Bruno, Marvin Yellowbird, Kurt Buffalo, Darwin Soosay, Patrick Buffalo, Rose Saddleback, Jim Omeasoo and Robert Swampy were declared elected as Councillors on June 4, 2002, and Cecil Crier, Patrick Cutknife and Ilene Nepoose were declared elected as Councillors on June 6, 2002.

[10]            The respondent, one of the candidates in the May 27, 2002 election, appealed the election to the Board under section 82 of the Election Law. The respondent had four complaints, one of which was accepted by the Board and reads as follows:

(2)           Electoral Officer gave an extension of 24 hours longer to candidates to submit, photos criminal record letters and fees. Deadline of May 15 and May 7/02 [sic]

Section 31 clearly states:

Any candidate who fails to post an election fee or to have such fee posted on his behalf, or to submit photograph prior to or at the closure of the nomination meeting, shall thereafter cease to be considered a candidate for office for that specific election.

[11]            After an in camera discussion, the Board determined, in respect of the section 31 complaint, that:

The Electoral Officer did not have the authority to make that judgment call to extend the time for fees, photos and criminal records. States in the Samson Election Law that all these are to be in place at the end of the nomination meeting.

[12]            The official decision regarding the complaint under section 31 reads as follows:

(Extension of 24 hours given to some candidates to provide documentation).

Section 31: "Any candidate who fails to post an election fee or to have such fee posted on his behalf, or to submit to photograph prior to or at the closure of the nomination meeting, shall thereafter cease to be considered a candidate for office for that specific election".

Based on evidence presented on Section 31, we, the Samson Election Appeals Board declare that the complaint based on Section 31 of the Samson Election Law to be a valid complaint and that we are ordering that a new election for Council be held within two weeks of the date of the Board's determination.

[13]            The issues raised by the applicants in the present case are the following:

1.         Did the Board err in its legal interpretation of sections 31 and 16 of the Election Law and err in finding that the section 31 complaint was valid?

2.         Is the June 16 decision patently unreasonable as it is inconsistent with the objects and purpose of the Election Law and is there no rational connection between the alleged violation of section 31 and the consequences of the alleged violation; that is, the holding of an entirely new Councillors' election?

3.         Is the June 16 decision patently unreasonable as it does not provide any "further requirements, conditions, or directions" respecting the new Councillors' election which would enable the new election to be held within the requirements and deadlines established by the Election Law?

4.         Is the June 16 decision unreasonable and in breach of the duty and obligation under section 89 of the Election Law to give written reasons including the particulars of the evidence relied upon?

[14]            The important provisions of the Election Law applicable in the case at bar are sections 16, 31, 41, 82 and 88, which read as follows:

16.           The Electoral Supervisor shall be recognized as the person authorized to conduct the entire administration and process of the election. The role of the Electoral Supervisor shall include the responsibility for:

(a)            plans and preparations for conducting the election,

(b)           providing assignments and directives to his Assistants,

(c)            monitoring, reporting on progress and maintaining contact as necessary to the Samson Cree Nation Council and to Samson members concerned,

(d)           obtaining any required information and materials from the Samson Cree Tribal Administration,

(e)            preparing a Samson Voter's List and other lists for appropriate posting,

(f)            knowing the entire content of the Election Law.

...

31.           Any candidate who fails to post an election fee or to have such fee posted on his behalf, or to submit to photograph prior to or at the closure of the nomination meeting, shall thereafter cease to be considered a candidate for office for that specific election.

...

41.           In addition, there shall be on public display, a ballot with the photograph and name in alphabetical order of all candidates at all voting locations, and at each polling booth designated for Elders.

...

82.            Within seven (7) days from the date of any election, any candidate in the election who has reasonable grounds to believe:

(a)             there was a corrupt practice with respect to the election;

(b)           that a person nominated to be a candidate in the election was ineligible to be a candidate; or

(c)            that there was any other violation of these customs which may have affected the result of the election.

may commence an appeal by serving upon the Chairman of the Samson Elections Appeal Board, a letter setting out the particulars of his complaint and the grounds thereof.

...

88.           In the event that a new election is ordered, that election shall be held in accordance with the customs described herein, subject however, to such further requirements, conditions, or directions as may be imposed by the Board in order to avoid a repetition of the violation complained of.

[15]            The standard of review applicable to questions of law and to a decision from a non-expert tribunal such as the Board is clearly one of correctness (Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100 at 113-18; Law Society of New Brunswick v. 2003 SCC 20">Ryan, 2003 SCC 20, [2003] S.C.J. No. 17; and Dr. Q v. 2003 SCC 19">College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18). The Board which is appointed by resolution of the Chief and Council, does not need any specific expertise (section 80 of the Election Law).

[16]            In Simon v. Samson Cree Nation (2001), 205 F.T.R. 49 (T.D.), the Court had to interpret section 16 of the Election Law. The question before the Court was the authority of the Electoral Supervisor who, during the 1999 Councillors' election, had removed a candidate's name from the list of candidates before the date of the election after determining that she did not meet the residency requirements for candidacy under the Election Law. The candidate sought judicial review of the Electoral Supervisor's decision claiming that the Electoral Supervisor did not have the authority to remove her name from the list of candidates.

[17]            In this decision Blais J. stated at paragraphs 24, 29, 32 and 33 that:

The Electoral Supervisor refers to Ruth Sullivan, Statutory Interpretation, (Concord: Irwin Law, 1997), which states at pages 135 and 136:

To achieve a sound interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation. This includes the purpose of the provision to be interpreted as well as larger units-parts, divisions and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text. It is used as a standard against which proposed interpretations are tested: and interpretation that promotes the purpose is preferred over one that does not, while interpretations that would tend to defeat the purpose are avoided.

...

The Electoral Supervisor's proposed interpretation is that section 16 of the Election Law confers broad authority to the Electoral Supervisor to conduct the entire administration and process of the election. The purpose of the Election Law is to limit candidacy to those who meet the residency qualifications. This purpose must be considered when interpreting the scope of the Electoral Supervisor's jurisdiction to control the process and administration of the election.

...

Section 4 of the Election Law relates to the disqualification of a Chief or member of the Council for the Samson Cree Nation.

In my view, the interpretation proposed by the Electoral Supervisor is the most consistent with the purpose of the Election Law and the intention of its drafters. The drafters of the Election Law cannot have intended that a person who not meeting its requirements should be permitted to be an electoral candidate.

[18]            Therefore, the Electoral Supervisor, acting under section 16 of the Election Law, just like in the case at bar, has broad general authority, not limited to the six enumerated instances in that section, to conduct the entire administration and process of the election. The authorities include: making administrative decisions respecting the practical application of procedural provisions of the Election Law to situations as they arise during an election, the practical application of procedural provisions of the Election Law during the nomination meeting, and making administrative decisions to hold the nomination meeting over for specific administrative purposes.

[19]            The wording of section 16 which provides that "[t]he role of the Electoral Supervisor shall include the responsibility for..." is clearly not exhaustive of the responsibilities of the Electoral Supervisor.

[20]            The purpose for which the Election Law requires all candidates' notarized photographs is to help people who cannot read the ballot, particularly Elders, to identify the candidate or candidates for whom they wish to vote. In the case at bar, all the photographs of the candidates were received 12 days before the May 27, 2002 election, well within the time required to create the posters for public display and well within the time required for their use.

[21]            As for the purpose for which the Election Law requires all candidates to pay their fees, it is to help the Samson Cree Nation defray the costs of the election. All fees were paid by May 17, 2002, which was within the time extension allowed by the Election Supervisor and early enough to cover the costs of the election.

[22]            Applying the purposive and functional approach to the interpretation of section 31 of the Election Law, I accept the applicants' submission that "the closure of the nomination meeting" referred to in this section means that the meeting and all of the business to be transacted during the meeting under the Election Law, must be concluded, completed, terminated and finished for every and all purposes, not just the process of nominating, seconding and accepting candidacy.

[23]            I find that the Board did not correctly interpret and apply section 31 of the Election Law and that its strict interpretation of this provision is otherwise patently unreasonable as it is inconsistent with the object and purpose of the Election Law. It ignores the broad authority of the Electoral Supervisor under section 16 of the Election Law "to conduct the entire administration and process of the election" and is wrong in law.

[24]            In the case at bar, the Election Supervisor's decision to allow an extension of time for the limited purpose of permitting one candidate to provide his election fee to the Samson Cree Nation (considering that the latter owed him money) and permitting others to provide their notarized photographs (considering they had difficulty finding a lawyer or a person to notarize their photographs) is clearly within the broad general authority of the Electoral Supervisor. This is true so long as the Electoral Supervisor's decision is made at the nomination meeting, which was the case here, and is consistent with and does not defeat the purpose for which the Election Law requires all candidates' notarized photographs and election fees.

[25]            The ordering of a new election of the 12 Councillor positions in the circumstances of this case would not only be a waste of the Samson Cree Nation's resources and a waste of the time and money of the people who must be nominated as candidates to run in a new election but it would also be completely and inordinately out of proportion to the alleged violation of section 31 of the Election Law.

[26]            It should be noted that, according to the respondent's letter of complaint, to which a statement by her son is attached, the respondent knew about the alleged violation of section 31 of the Election Law long before the date of the election on May 27, 2002, yet she only raised her section 31 complaint after that election had been held and she had been unsuccessful in her candidacy (her son was present when two candidates submitted their notarized photographs on May 15, 2002, one day after the nomination meeting per the extension of time permitted by the Electoral Supervisor).

[27]            In view of the above findings, it is not necessary that I address the other issues raised by the applicants, and more particularly points 3 and 4 mentioned at paragraph 13 above.

[28]            In conclusion, the applicants' allegation that there was no violation of section 31 of the Election Law is well founded and the Court should intervene to redress the situation. Moreover, there is no rational connection between the alleged violation of section 31 of the Election Act and the consequences of the alleged violation; that is, the holding of an entirely new Councillors' election. It is also apparent that none of the three grounds of appeal mentioned at section 82 of the Election Law has been met here and that the Board should have dismissed the respondent's complaint.

                                                  ORDER

THIS COURT ORDERS that the present application for judicial review be granted. Thus, the Court orders that the decision of the Samson Election Appeal Board, dated June 16, 2002, be quashed. The Court further declares that there was no breach or violation of section 31 of the Samson Cree National Election Law respecting any of the candidates who stood for election to the Council. The whole without costs.

                                                                                                                                                                                    

                                                                                                        Judge

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 T-956-02

STYLE OF CAUSE: CHIEF VICTOR BUFFALO ET AL v. LENA CUTKNIFE

PLACE OF HEARING:         Edmonton, Alberta

DATE OF HEARING:           June 4, 2003

REASONS FOR ORDER

AND ORDER OF:                 THE HONOURABLE MR. JUSTICE LUC MARTINEAU

DATED:                                    June 10, 2003

APPEARANCES:

David Rolf                                   FOR APPLICANT

No one                           FOR RESPONDENT

SOLICITORS OF RECORD:

Parlee McLaws LLP

Edmonton, Alberta                     FOR APPLICANT

Not Applicable              FOR RESPONDENT