Date: 20000420
Docket: T-2112-98
BETWEEN:
Applicant
Respondent
| THE CHIEF AND COUNCIL OF THE |
Intervenor
ORDER AND REASONS FOR ORDER
CAMPBELL, J.:
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act respecting a decision of the 1998 Ermineskin Election Appeals Board (the "Board") concerning the eligibility of the Respondent to be nominated, and subsequently elected on 16 September 1998, as a Band Councillor of the Ermineskin Band.
[2] On 2 September 1998, an election nomination meeting took place for four Councillor positions at which the Applicant, the Respondent, and others were nominated.
[3] The election was held on 16 September 1998 and was administered in accordance with Ermineskin Tribal Election Custom.
[4] At the recount held on 17 September 1998, it was determined that the Applicant and the Respondent each received 181 votes, placing them in a joint tie for the last remaining Councillor position. At the run-off election, the Applicant received 185 votes, while the Respondent received 288 votes.
[5] On 28 September 1998, the Applicant filed an appeal with the Board alleging a number of grounds for why the election results could not stand, including that the Respondent had been dismissed from his position as Band Administrator in November of 1996 under circumstances that would make him ineligible to run under s. 2(a)(iii) of the Ermineskin Tribal Election Custom.
[6] Section 2(a) of the "By-law No. E86-01: Regulations Governing Ermineskin Tribe No.138 Tribal Election Custom (Revised - July 5, 1995) (the "Regulations") reads as follows:
| (a) "CANDIDATE" means a person who is twenty-one (21) years of age and older; and was a registered Ermineskin Member prior to June, 1985 and subsequently a candidate must provide evidence of patrilineal descendency in accordance with customary and traditional law and the Ermineskin Membership Rules who has actually resided on the Ermineskin Reserve or Pigeon Lake Reserve for a period not less than twelve (12) months immediately preceding the election. |
| A Candidate shall be determined ineligible and disqualified from nomination and election if; |
| i. during the previous five (5) years he has been convicted of a criminal offence unless a full pardon has been granted. |
| ii. he has been incarcerated as a result of such an offence. |
| iii. he was guilty of corrupt practice in connection with Ermineskin Tribal Affairs, dishonesty, malfeasance. |
| iv. demonstrates instability caused by the abuse of alcohol or drugs.1 |
[7] The present application concerns the following passage from the Board's decision:
| It appears that the Chief and Council were correct in making a finding that Minde was in a conflict of interest position because he used his position and knowledge of budgets for personal gain. |
| In the testimony of Lightning, Minde and Chief Gerry Ermineskin, in 1996, a letter was given to Minde dismissing him from the position of Administrator. Minde admitted to the existence of such a letter. However, he stated that he did not accept it. His reasoning was that "if he was guilty, then so was everybody else." |
| The letter of termination and the entire file was not produced at the hearing. Chief Ermineskin testified that at a "sit-in" in 1997 whereby some members of the Tribe occupied the Tribal Administration offices, the letter of termination and the entire file it was contained in went missing. As a result, there is no written documentation to show that Minde was terminated from his position on the grounds that he was guilty of corrupt practices, dishonesty or malfeasance. |
| There is however, produced by Minde, a copy of a letter of notice of layoff. In it, it is stated that the reason for the layoff was "...the difficult financial situation the organization is in." In addition, he stated that he received six weeks of severance pay. The section on severance pay in the Personnel Policies is as follows: |
| s. 18.1 A permanent employee who is terminated for reasons other than just cause or self-termination and was employed for one year is entitled to severance pay upon termination." |
| By giving him severance pay, Chief and Council did not act consistently with their prior findings of guilt. |
| Furthermore although Chief Ermineskin testified that Chief and Council found Minde guilty of conflict of interest, and accordingly sent him a termination letter, his recollection of the contents of the letter was not clear. |
| In the opinion of the Election appeals board, that considering the evidence, there was evidence of a decision by a competent body finding Minde guilty of corrupt practice making him ineligible for candidacy. However, this is rebutted by the vague recollection of the termination letter, the subsequent letter of lay-off and by the fact that Minde received severance pay. |
| Therefore, we have no choice but to find Minde eligible to be a candidate. |
| For the foregoing reasons, we find the appeal to be invalid. Accordingly, the election results should stand. |
| Nevertheless, we wish to emphasize that testimony and evidence provided at the hearing tended to show that there were irregularities in the conduct of Minde while he was in the position of administrator. These irregularities would ordinarily have disqualified him from candidacy in this election. The reasons we do not find the appeal to be valid are technical. |
| Although testimony of three witnesses, including Minde, showed that a letter of termination had been written, this letter was not produced because it had disappeared under unexplained circumstances. Lastly, but for the inconsistent behavior of Chief and Council in first terminating him, and subsequently laying him off with severance pay, the finding may have been different. Because of the nature of this decision, we recommend that Richard Lightning be refunded his appeal bond.2 [Emphasis added]. |
[8] The Applicant's principal argument with respect to the decision reached is that there is a conflict between the findings made such as to render the decision one made in reviewable error. In this respect, the primary focus is on the juxtaposition between the finding of the Chief and Council that the Respondent was guilty of corrupt practice, and the negation of this finding on the basis of three "irrelevant" considerations being: vague recollection, subsequent lay-off, and severance pay being paid.
[9] On a fair and full reading of the Board's decision, I do not accept this characterization.
[10] It appeared to the Board that the Chief and Council were correct in making a finding that the Respondent was in a conflict of interest. The focus of the Board then turned to whether the conflict of interest constitutes corrupt practice. On this issue the Board found that "there was evidence" that the Chief and Council found the Respondent guilty of corrupt practice, but the Board also found that there was other evidence which reduced its weight, being specifically, inconsistent behaviour on the part of the Chief and Council regarding the termination of the Respondent's employment.
[11] I think a fair interpretation of the Board's reasoning is that, if the conflict of interest found extended as far as corrupt practice, the Respondent would not have been laid off and given severance pay. Thus, the Board found that the inconsistent behaviour on the part of Chief and Council was to be resolved in the Respondent's favour.
[12] It is clear to me that the message being delivered by the Board in the latter part of its reasons is that, with respect to a person's eligibility for election, a conflict of interest can constitute corrupt practice, and that where such is found, no action should be taken by the Chief and Council to cloud the significance of such behaviour.
ORDER
[13] Based on my interpretation of the Board's reasons, I find no reviewable error, and accordingly, this application is dismissed.
[14] I award costs of this application to the Respondent, payable by the Applicant.
ADDENDUM
[15] An anxilliary issue was raised in the course of the hearing of the present application upon which I agreed to comment.
[16] The Intervenor has asked that I provide an opinion on the proper interpretation of the Band Electoral rules with reference to the following passage from the Board's decision:
| There is, however, nothing that instructs the Election Appeals Board whether it should make the finding of ineligibility or rely on the findings of another competent body. We assume that in the absence of any guidance, our role is to make a decision of ineligibility based on the prior findings of guilt of another competent body. We conclude that this body is not the Election Appeals Board but rather the elected Chief and Council who must make the prior finding of whether or not a candidate is eligible. |
[17] The Regulations provide for the appointment of a Returning Officer to supervise elections. I am told that the existing practice is for the Returning Officer to, before an election, determine whether a prospective candidate is disqualified under s. 2(a)(i) of the Regulations because of unpardoned criminal convictions within the preceding five years. Therefore, I think a reasonable interpretation of the Regulations is that the Returning Officer, not the Chief and Council, has the duty prior to an election to make a determination under s. 2(a) in all its respects, including s. 2(a)(iii). After an election, the duty to reach such a determination is that of the Board's, on application.
"Douglas R. Campbell"
Judge
Edmonton, Alberta,
April 20, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2112-98
STYLE OF CAUSE: Richard Lightning v. The 1998 Ermineskin Election Appeals
REASONS FOR ORDER AND ORDER: Campbell, J.
DATE: April 19th, 2000.
APPEARANCES:
Nicholas Baggaley for the Applicant
James Dixon for the Respondent, Minde
David Holman
Cheryl Ann Merchant for the Intervenor
SOLICITORS OF RECORD:
Ackroyd, Piasta, Roth & Day for the Applicant
Edmonton, Alberta
Dixon and Associates for the Respondent, Minde
Red Deer, Alberta
Blake Cassells & Graydon for the Intervenor
Calgary, Alberta
__________________
1 Applicant's Application Record, p. 44.
2 Ibid, p. 35-43.
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