Date: 20001122
Docket: T-679-00
Between:
THE FORMER CHIEF OF THE GRAND RAPIDS FIRST NATION,
Douglas Ballantyne,
Applicant,
- and -
BARBARA NASIKAPOW, ANNE HUDSON, AND THE GRAND RAPIDS FIRST NATION, represented by the councillors Ron Ballantyne, Murray Cook AND William Ferland
Respondents
REASONS FOR ORDER
Muldoon, J:
1. Introduction
[1] This is a motion under s.18 of the Federal Court Act whereby the applicant, Douglas Ballantyne, seeks the following remedies:
| 1. An order in the nature of certiorari setting aside the decision to suspend Douglas Ballantyne from the position of Chief of the Grand Rapids First Nation. The decision was made by the respondent councillors, Ron Ballantyne, Murray Cook, and William Ferland; |
| 2. An order in the nature of certiorari quashing and setting aside the decision of the respondent electoral officer Barbara Nasikapow to conduct a referendum on April 5, 2000; |
| 3. An order of in the nature of certiorari quashing and setting aside the results of the referendum of April 5, 2000; |
| 4. An order of mandamus requiring the respondent councillors, Ron Ballantyne, Murray Cook, and William Ferland to reinstate Douglas Ballantyne as Chief of Grand Rapids First Nation; |
| 5. A declaration naming Douglas Ballantyne as Chief of the Grand Rapids First Nation pursuant to the election of June 23, 1999; |
| 6. An injunction preventing the respondents or anyone else from acting on the petition which was used to suspend Douglas Ballantyne from the position of Chief; |
| 7. An order in the nature of certiorari quashing and setting aside the decision of the respondent electoral officer, Barbara Nasikapow, to render Douglas Ballantyne ineligible to participate in elections for three years; |
| 8. In the alternative, an order of prohibition preventing the respondents or the band from holding a nomination or an election without the participation of the applicant as a candidate. |
2. Facts
[2] The applicant, Douglas Ballantyne, was elected as Chief of the Grand Rapids First Nation on June 23, 1999. On March 20, 2000, a petition which had been circulating since September 1999 was submitted to the band's electoral officer, the respondent Barbara Nasikapow. The petition contained the names of 51.7% of the eligible voters of the Grand Rapids First Nation and called for a referendum to remove the applicant from office. Acting on the petition, the respondent councillors, Ron Ballantyne, Murray Cook and William Ferland suspended the applicant with pay by letter dated March 28, 2000. By letter dated March 30, 2000, the electoral officer informed the applicant that she was relying upon clauses 910(d) and 1510 of the Grand Rapids First Nation election policy to call a referendum of the membership. Six days later, on April 5, 2000, the electoral officer held a referendum resulting in 157 votes to remove the applicant from office, 153 votes to retain him, and one spoiled ballot. The electoral officer also applied clause 940 of the election policy and declared the applicant to be ineligible to participate in elections or in nominations for three years.
3. Grounds
Applicant
[3] The applicant submits this application on the following grounds:
| 1. The petition that led to the suspension of Douglas Ballantyne was founded on misleading and inaccurate information and was contrary to the Grand Rapids First Nations' Regulations; |
| 2. The referendum of April 5, 2000 was flawed in three ways: |
| a. It was based upon the flawed petition; |
| b. It contained the same misleading and inaccurate information that was contained in the petition; |
| c. It was contrary to the Grand Rapids First Nations Election Policy. |
Respondents
[4] The respondents oppose the application on the following grounds:
| 1. The respondents acted appropriately and in accordance with the Grand Rapids First Nation election policy; |
| 2. There was no denial of procedural fairness to the applicant; |
| 3. Band custom and election codes which are generally acceptable to members of the Band and upon which there is a broad consensus should not be interfered with by the Courts; |
4. Preliminary Issues
a. Jurisdiction
[5] The parties have agreed that the Federal Court has jurisdiction to decide this matter. However, because jurisdiction cannot be conferred by consent, this Court adopts the reasons of Mr. Justice Rothstein in Sparvier v. Cowessess Indian Band No. 73.1 He concluded that an Indian Band Council constituted a federal board, commission or other tribunal as defined in s. 2 of the Federal Court Act 1:
| It is well settled that for purposes of judicial review, an Indian band council and persons purporting to exercise authority over members of Indian bands who act pursuant to provisions of the Indian Act constitute a "federal, board, commission or other tribunal" as defined in section 2 of the Federal Court Act. See Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147 (F.C.T.D.); Beauvais v. The Queen et al., [1982] 1 F.C.171 (F.C.T.D.); Rider v. Ear et al., [1979] 4 C.N.L.R. 119 (Alta. S.C.T.D.), Gabriel et al. v. Canatonqui et al., [1978] 1 F.C. 124, affd [1980] 2 F.C. 792 (F.C.C.A.), decided that an Indian band council came within the jurisdiction of the Federal Court where the election of the band council was pursuant to band custom and not the Indian Act. (Sparvier, pp.150-51)(emphasis not in text.) |
[6] In Parisier v. Ocean Man First Nation,1 Mr. Justice Gibson expressed himself "satisfied that, by analogy, an Electoral Officer appointed by such a Band Council pursuant to the Band Constitution is equally a federal board, commission or other tribunal." Therefore, the election officer's decisions are amenable to judicial review by a judge of this Court, even if the election be held in accordance with the Indian band's own customary practices, and not pursuant to the Indian Act.
b. Duplication of Names on the Petition
[7] In reviewing the petition, this Court noted eight instances where one petitioner signed on behalf of another petitioner. Sixteen petitioners' names are suspect. Because the petition contained only 51.7% of the total eligible electors, duplicate names are critical.
[8] According to Barbara Nasikapow, 362 of 700 electors signed the petition. This sum constitutes 51.7% of the total number of electors. If this Court were to strike eight names from the list, 354 (362 - 8) electors signed the petition, totalling 50.6% (354 / 370) of the electors. If this Court strikes all of the suspect names from the list, 346 (362 - 16) electors signed the petition, totalling 49.4% (346 / 700) of the electors. The election policy requires 51% of the electors to sign a petition before the election officer can lawfully call a referendum. Whether eight or sixteen names be struck, those percentages were each and both insufficient for the electoral officer to act.
[9] In Sucker Creek Indian Band v. Calliou1, Mr. Justice Rouleau encountered a deficient and defective petition. It had been improperly presented by an ineligible member and did not contain the requisite number of signatures. After noting the problem, Rouleau J. proceeded nonetheless to analyze the application on its merits. Therefore, this Court will examine the merits of the application despite the defective petition.
5. Issues
a. Statutory Interpretation of Clause 1510
Applicant's Submissions
[10] The electoral officer relied on clauses 910 and 1510 of the Grand Rapids First Nations' election policy to hold a referendum to remove Douglas Ballantyne as Chief. The applicant submits that clause 1510 is limited to situations which involve election recounts and cannot be used to justify a referendum to remove a person from office.
| If the difference between the top vote number obtained and the next closest vote number is five (5) votes or less, the electoral officer shall recount the votes immediately after the election. |
| Upon receiving a petition signed by a number of Electors equal to or greater than 51% of the number of eligible voters in the immediately preceding election, requesting a recall vote for any reason, the electoral officer and his Deputies may arrange for vote [sic] on the request with respect to the person to whom the petitions [sic] refers and the electoral officer shall conduct the vote in the same way as a vote for a position on Council and a decision in said vote shall be by a majority of the Electors voting. (Election Policy). |
[11] The applicant submits that clause 1510 applies only to "eligible voters in immediately preceding election" to support his thesis that the clause concerns recounts only. Moreover, the applicant urges this Court to adopt a contextual approach in interpreting clause 1510. A contextual approach would have the Court examine the clause headings to help in interpreting the election policy, even in the absence of ambiguity. This is particularly important because many clauses do not make sense without their subject headings. Any other interpretation leads to absurdities in applying the election policy.
Respondents' Submissions
[12] The respondents submit that this Court should interpret clause 1510 using the plain meaning rule. This rule states that when the meaning of the language is plain, nothing outside the provision to be interpreted should be regarded. Provisions such as titles, preambles, purpose statements, headings and marginal notes are "external" to the main legislation and resort to them according to the plain meaning rule is permissible only in cases of ambiguity.
[13] The respondents invoke the Manitoba Interpretation Act1 and that the Federal Interpretation Act1 to support their position:
| Manitoba Interpretation Act: |
| Supplementary matters forming no part of Act |
| 11 The marginal notes, and the notes and headings in the body of an enactment, and the notes to former enactments, and the tables of contents printed following the long title, form no part of the enactment but shall be deemed to be inserted for convenience of reference only. (Manitoba Interpretation Act) |
Federal Interpretation Act:
| 3 (3) Nothing in this Act excludes the application to an enactment of a rule of construction applicable to that enactment and not inconsistent with this Act. |
| Marginal notes and historical references |
| 14 Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only. (Federal Interpretation Act) |
[14] Additionally, the respondents submit the following passage from a book entitled Statutory Interpretation1 by Ruth Sullivan to support their contention
| According to the plain meaning rule (or some versions of the rule), where the meaning of legislative language is plain, nothing outside the provision to be interpreted - in other words, nothing "external" - should be looked at...Resort to things like headings or preambles is permissible only in cases of ambiguity. Furthermore, under the plain meaning rule these external components must not be relied on to help "create" ambiguity in the first place. To determine whether the meaning is plain, the provision must be read in isolation from its context. Although the plain meaning rule has been discredited on many occasions, it is still invoked by some judges when dealing with aids to interpretation that are considered to be "extrinsic" or "external." |
| The majority of Canadian Interpretation Acts state that headings are not part of the enactment in which they appear, the implication being that they should not be taken into account (at least not in the absence of ambiguity). Other Interpretation Acts say nothing of headings. In practice, courts often ignore the Interpretation Acts and rely on case law to decide what use should be made of headings. In the older cases, courts emphasize the external nature of headings and refuse to rely on them unless the language of the legislation is ambiguous. (emphasis added) (Statutory Interpretation, p.114). |
[15] Finally, the respondents submit that even if clause 1510 relates uniquely to election recounts, clause 910 of the election policy applies.
Decision: Clause 1510
[16] This Court holds that clause 1510 (not to emphasize clause 1500) applies uniquely to election recounts. In oral argument, counsel for the applicant noted instances where the election policy does not make sense without using subject headings. For example, clause 600 states:
| A member of the Grand Rapids First Nation who is the full age of 21 years, regardless of the fact that he lives off the reserve. |
[17] This fragment does not make sense without knowing to what it refers. However, when read in combination with the heading "Eligibility for the Office of Chief", it becomes clear that it outlines a criterion for a person to be candidate for chief in an election. Therefore, such headings in this document are integral to its interpretation.
[18] Although the Manitoba Interpretation Act excludes the headings in the body of an enactment, the Grand Rapids First Nation election policy does not appear to have been written with it as a guide.
[19] Moreover, Ruth Sullivan in Statutory Interpretation notes that courts in Canada are adopting a single general rule whereby all components of the legislation are considered part of the legislative context which can be taken into account in interpreting a text:
| Despite these difficulties, Anglo-Canadian courts are moving towards adoption of a single general rule. Under this rule, all components of legislation are considered part of the legislative context and may be taken into account in interpreting a text, not only to resolve ambiguity but generally to help determine the intended or appropriate meaning. On this approach, it is not necessary to find that a text is ambiguous before looking at a heading or a preamble. As Viscount Simonds wrote in A.G. v. Prince Ernest Augustus of Hanover, speaking of preambles: "[N]o one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous." (emphasis added) (Statutory Interpretation, p.115) |
b. Allegations of Wrongdoing in the Petition.
[20] Under the Grand Rapids First Nation election policy, a Chief may be removed under the following specified circumstances:
| 910. [1] The office of Chief or Councillor shall become vacant immediately upon the electoral officer certifying in writing that a vote pursuant to this clause 910 has been taken, declaring that the person who holds the said office is; |
...
| d) was [sic] substantially involved in corrupt election practices, bribery, accepting a bribe, or substantial dishonest or disorderly conduct. |
| 920 Votes under clause 910 shall take place when the electoral officer receives a petition signed by 51% (fifty-one percent) of the Electors setting out the grounds for the request of the vote under 910 and the electoral officer shall conduct the vote in the same way as a vote for a position on Council and a decision in said vote shall be by a majority of the Electors voting. |
| 940 Any person who ceased to hold office by virtue of clause 910 shall be ineligible to be a candidate for the office of Chief or councillor for three (3) years. (Election Policy). |
[21] The following petition was circulated to call for a referendum to remove Douglas Ballantyne as chief under clause 920 of the election policy:
| We the undersigned members of the Grand Rapids First Nation demand that the electoral officer hold a Referendum to allow the Membership to vote on whether or not Douglas Ballantyne should be removed as Chief, for the following reasons; |
| - Dishonesty, lying to the Membership prior to the Election about stealing money from the Pelican Landing to get votes. |
| - Admitting to stealing the money after the Election, during a Membership Meeting. Which was witnessed by the people attending the Membership Meeting, including the RCMP. |
| - He has been charged for stealing the $9,200 he admitted to taking. And is under investigation for another $116,000 that went missing during his employment with the Pelican Landing, a business owned by Grand Rapids First Nation. |
| - Under our Election Policy any Member of Chief & Council must be removed from office for "Dishonesty" or "Theft of Band Funds." |
| - We demand a Referendum to let the people decide by Secret Ballot. |
Applicant's Submissions
[22] The applicant submits that the petition was founded on misleading and inaccurate information. Moreover, the subsequent referendum was flawed because it was based on the petition and contained the same misleading and inaccurate information. He denies all of the allegations contained in the petition.
Theft of $9,200
[23] The applicant was employed by Pelican Landing, a business owned by the band, as a management trainee. He was suspended with pay in or about May or June, 1999 pending an investigation about money which had gone missing.
[24] The applicant submits that he was not dishonest to the membership, nor did he steal any money. He admits to having made loans to members of the Band because he thought that it was in his power to do so. Moreover, the total amount that he lent to members was $1,500, not $9,200, and he does not know what happened to the remaining $7,700. He admits to having been charged under the Criminal Code with stealing $9,200, but denies the accusation and has pleaded not guilty to the charges.
[25] The applicant submits the cross-examination of Marina Martha Freda Snyder, general manager of Pelican Landing since 1994, to demonstrate that he believed that he could lend money while employed at Pelican Landing. In her affidavit, she states that neither she nor any employee of the business had the authority to make loans from business funds except for loans to the Chief and to the Council for First Nations purposes. However, in cross-examination, Ms. Snyder admits that loans had been made prior to 1994 because some still remain outstanding. In April, 1999, a policy change occurred whereby loans to band members were prohibited. In cross-examination, Ms. Snyder states that this new policy was passed at a council meeting and recorded in the minutes of the meeting. However, the policy had not been re-typed, nor was it available to employees because the minutes of meetings had been turned over to the RCMPolice during the course of their investigation. The applicant submits that this demonstrates that loans were made by Pelican Landing employees, and that it was reasonable for the applicant to assume that he had the power to make loans to members. Moreover, he submits that if a policy change occurred, the change was not communicated to employees, nor was it available for their inspection. Finally, in cross-examination, Ms. Snyder states that other people could have taken the stolen or "missing" money.
Theft of $116,000
[26] The applicant denies that he is under investigation for $116,000 which disappeared during his employment with Pelican Landing. He produced a letter from the RCMPolice, dated March 22, 2000, whereby Sgt. B.R. Walker states that an investigation in late 1997 into the theft of $116,000 at the Pelican Landing failed to develop sufficient evidence to go to court:
| Our investigation into the matter failed to develop sufficient evidence to identify the recipients and suspects in this loss to allow this matter to go to court. On review of this investigation, it appears that the most likely candidates are no longer residents in Grand Rapids. This was ascertained after the Pelican Landing Management ordered a forensic audit of its business practices. |
6. Procedural Fairness
[27] The applicant submits that the respondents must provide evidence of the allegations raised in the petition before relying on it to remove a person from office. A petition requires honesty and good faith. It must not contain innuendo, false statements, or inaccurate and misleading facts to entice electors to sign. The election policy never envisioned the use of a petition in this manner. A petition which is circulated on false premises does not have validity in law to support the overturning of an elected political office holder.
Bias
[28] The applicant submits that Barbara Nasikapow demonstrated bias towards him by discussing the petition with several band councillors, including Ron Ballantyne. The evidence is not clear about the details of the discussions. Councillor Ron Ballantyne may have been adverse to the applicant, but the evidence is weak, consisting of double hearsay in the minutes of an undated meeting. Barbara Nasikapow denies being adverse to the applicant and claims to have based her decision to proceed with a referendum solely on clause 920(d) of the election policy. However, she once asked the applicant to explain his actions during a public meeting, allegedly, to hear him deny involvement in the theft of band funds.
[29] The applicant also submits that the electoral officer should not have proceeded with the referendum because she knew or ought to have known that the petition was flawed. Barbara Nasikapow knew that the petition contained false allegations and even expressed her concerns to the council. She was nonetheless instructed by the council to proceed with the elections.
[30] In cross-examination, Barbara Nasikapow claims that Douglas Ballantyne admitted to stealing the $9,200 at a public meeting. However, when pressed as to whether he admitted to stealing the money, or whether he qualified his statement by saying that he took the money to lends to members of the band, she repeated several times that Douglas Ballantyne said that "he took the money." The applicant submits that despite the various contexts in which taking money does not constitute theft, Barbara Nasikapow closed her mind to all explanations except for theft. Moreover, the applicant submits that she never heard him say that he took the $9,200.
Respondents' Submissions
Theft of $9,200
[31] The respondents submit that Douglas Ballantyne's cross-examination demonstrates that his belief in his power to make loans was not reasonably held. The sole basis for that belief was that he held the position of assistant manager of Pelican Landing at the time, and nobody else was around to make the loans. He admits to having read the policy that prohibits loans to anybody except employees. He kept records of the loans, which are in the custody of the RCMP.
Theft of $116,000
[32] The respondents submit that when the petition was being circulated, the applicant was in fact under investigation because the letter which purports to exonerate him post-dates the actual petition and referendum. The letter is dated March 22, 2000. The petition was circulated from September 1999 to March 20, 2000, and the referendum was held on March 28, 2000. Therefore, the respondents assert, the allegations on the petition are in fact reasonable and true. It is a reasonable inference that the applicant was a suspect until the referendum. Does being under suspicion ever prove anything? The voting took place after the date of the letter, exhibit H to applicant's affidavit.
Procedural Fairness
[33] The respondents submit that the Douglas Ballantyne was removed as Chief in accordance with the election policy because more than 51% of the electors in the community were concerned about the missing money from Pelican Landing. Substantial dishonesty is a legitimate ground contained in clause 910(d) of the election policy. The electoral officer exercised her discretion appropriately, the respondents allege, and called a referendum pursuant to the election policy. Everybody knew that this election was about the chief's involvement in possible theft at Pelican Landing.
[34] The amount of money which went missing is irrelevant, because the issue involves substantial dishonesty. Douglas Ballantyne is said to have admitted on two public occasions to having taken the money. In applying a customary election act, the lack of a conviction is also irrelevant. The chief was dishonest to the people and they decided to remove him, according to the respondents' version of events.
[35] The respondents submit that the applicant had sufficient time to meet the case against him. His cross-examination demonstrates that he was aware of the petition as early as September 1999. He was aware of the election policy which required 51% of the electorate to remove him and talked to electors about the petition. He also campaigned during the period leading up to the referendum of March 28, 2000 and recruited other members of the community to help him. Finally, and most importantly, he admitted in cross-examination that he had been given an opportunity to mount a reasonable campaign against the petition. Therefore, the process was not flawed by his own admission.
Bias
[36] The respondents submit that Barbara Nasikapow had no personal bias against the applicant and was a friend of the Douglas Ballantyne's wife.
The Law: Procedural Fairness
[37] The law regarding procedural fairness was recently discussed in Baker v. M.C.I.1 Madam Justice L'Heureux-Dubé confirmed that an administrative decision which affects
"the rights, privileges or interests of an individual" is sufficient to trigger the application of the duty of fairness. She noted that "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case." The purpose of the participatory rights contained within the duty of procedural fairness, is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully; and have them considered by the decision-maker. L'Heureux-Dubé J., reviewed the content of procedural fairness in the following paragraphs:
| [23] Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra,([1990] 3 S.C.R. 1170) at p. 683, it was held that "the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making". The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness... . |
| [24] A second factor is the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates": Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted... . |
| [25] A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in [1980] 1 S.C.R. 1105">Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113: |
| A high standard of justice is required when the right to continue in one's profession or employment is at stake ... .A disciplinary suspension can have grave and permanent consequences upon a professional career. |
| [26] Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness... . Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded... . |
| [27] Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J. |
| [28] I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.( Baker, pp.838-41) (emphasis added). |
Analysis: Duty of Fairness
a. Nature of the Decision and Process used to make the Decision
[38] This step requires the Court to examine how closely the decision-making process resembles the judicial process. The more they resemble one another, the more procedural protection akin to a trial will be required.
[39] The electoral officer is responsible to oversee the election policy. She does not have to consult with others in making her decisions and she must act within the bounds of the policy. In deciding to accept the petition and to hold a referendum, the electoral officer was acting in a capacity similar to that of a judicial officer. She applied a set of facts to the election policy. This necessity militates towards more procedural protection for the applicant.
b. Nature of the Statutory Scheme
[40] Here the Court must examine what process exists to appeal the decision of the election officer. Greater procedural protection is required when no appeal procdure exists in the statute, or when the decision determines the issue and futher requests cannot be submitted. No appeal from the election officer's decision exists in the policy, and her decision is determinative of the issue. Therefore, more procedural protection should be afforded to the applicant.
c. Importance of the Decision to the Individual
[41] This step asks how important the decision is to the applicant. The answer is self-evident here. A high standard of justice is required when the right to continue in one's employment or elective office is at stake. This standard exacts a high duty of fairness.
d. Legitimate Expectations
[42] The doctrine of legitimate expectations does not create substantive rights. If the claimant has a legitimate expectation that the decision-maker will follow a defined procedure, the claimant may raise the doctrine . The doctrine does not apply here because the applicant had no such expectation.
e. Choice of Procedure
[43] If the statute leaves to the decision-maker the ability to choose his or her own procedures, or when the "agency" has an expertise in determining what procedures are appropriate in the circumstances, then weight should be accorded to the choice made by the agency. Here, the election officer has no flexibility in determining the choice of procedure to follow. The procedure is dictated by the election policy. Therefore, a high order of procedural fairness is required for the applicant.
f. Conclusion
[44] This Court holds that a duty of fairness was owed to the applicant. The decision to accept the petition and to proceed with a referendum is one which requires the utmost procedural fairness. It is not a decision to be taken unthinkingly or precipitously.
Content of the Duty of Fairness
[45] The content of the duty of fairness to the applicant was discussed in Sparvier1 where Mr. Justice Rothstein adopted the reasons from Lakeside Colony of Hutterian Brethren v. Hofer1 and decided that the basic requirements of the principles of natural justice included notice, an opportunity to make representations and an unbiased tribunal.
a. Notice
[46] The applicant received three letters during this period. The first letter came from the Council of the Grand Rapids First Nation and purported to suspend him with pay. The next two came from the electoral officer to inform him that a referendum was going to take place shortly. In all instances, the letters were received ex post facto and the applicant had no prior notice.
b. Opportunity to make representations
[47] The applicant had no opportunity to make representations to the election officer.
c. Unbiased Tribunal
[48] In Baker, L'Heureux-Dubé J. reiterated that procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker.
[49] The test for reasonable apprehension of bias was set out by de Grandpré J., writing in dissent, in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
| ... the 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." |
| This expression of the test has often been endorsed by this Court, most recently in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, per Major J.; at para. 31, per L'Heureux-Dubé and McLachlin JJ.; and at para. 111, per Cory J. |
[50] It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved... (Baker, [1992] 2 S.C.R. @ 849-50).
[51] Rothstein J. discussed the issue of a reasonable apprehension of bias for Indian Bands in Sparvier:
| 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. |
| However, the Court must work within the framework of the existing law. I have added these comments because of the difficulties I see with the application of a more desirable strict bias test in the case of an adjudicative board such the Appeal Tribunal, to the practicalities of inevitable social and business relationships in a small community such as the Cowessess Band. (Sparvier, 63 F.T.R. pp.258-259 ) |
Decision: Allegations of Wrongdoing
[52] The Baker analysis demonstrates that the applicant was entitled to the utmost procedural protection. At a minimum, he should have been notified before the decisions were made about him. This Court holds that the virtual lack of opportunity to meet the petition's allegations formed an important lacuna because the petition was inflammatory and possibly libellous.1 The petition was supported by only 51.7% of the electors' names after seven months, only 0.7% more than the minimum percentage needed to call a referendum. The applicant lost the subsequent referendum by four votes. The nature of the allegations may have improperly influenced electors and the election results, but that thought is speculative.
[53] Although the applicant has been charged with the theft of $9,200, he has been found "not guilty". He does not admit to having lent the amount for which he is charged, and may even have a plausible defence, including a colour of right, in a court of criminal law. Although the respondents are convinced his guilt, they were wrong about his rôle in the theft of $116,000. The RCMP cleared him of wrongdoing, but just before the referendum. This illustrates why unfounded allegations are prejudicial and unfair.
[54] This Court rejects the respondents' assertion that the applicant had sufficient time to meet the case against him. The petition circulated for seven months before being submitted to the electoral officer. She held a referendum one week later. It is unfair to expect the applicant to mount a reasonable campaign to repair his reputation in one week when his foes had over half a year to smear it. That the applicant is before this court demonstrates that he, with his counsel, does not agree that the process was fair.
[55] It is clear that the electoral officer believed that the applicant was dishonest. Her mind was not open to any other explanation. This Court holds that a reasonable and right minded person would have perceived that she was biased against the applicant in this instance. It may have influenced her decision to accept the petition, and the alacrity with which she held the voting. Although she contends that she meant no harm in asking questions of the applicant in a public forum, her position requires her to exercise more diligence in appearing unbiased.
c. Election Officer's Scope of Authority
Applicant's Submissions
[56] The applicant submits that the electoral officer should not have proceeded with the referendum because she knew, or ought to have known, that the petition was flawed. Barbara Nasikapow knew that the petition contained false allegations and even expressed her concerns to the Council. She was nonetheless instructed by the Council to proceed with the elections. She should have disobeyed, or resigned.
[57] Under cross-examination, Barbara Nasikapow stated that she had no choice under clause 910(d) but to accept the petition. No matter how outrageous the allegations, the policy did not permit her to exercise judgment to confirm whether it contained truths or falsehoods. The applicant submits that her position as electoral officer requires her to act with fairness, and that is, itself, according to law.
Respondents' Submissions
[58] The respondents submit that the electoral officer is under no obligation to satisfy herself that the allegations in a petition are true. She must satisfy herself that there is a reasonable basis for the allegations but she is not required to investigate them. In this instance, she knew that a basis existed to these allegations as a member of this small community.
[59] The respondents submit Crow v. Blood Indian Band Council1 to demonstrate that an allegation of dishonesty is sufficient to remove a person from office. In Crow, the plaintiff was a former band councillor of the Blood Band. He was elected as a band councillor. The Chief-and-Council received complaints about the plaintiff which were serious enough to ask him to resign. The plaintiff refused and the council removed him from office. Later, the electoral officer refused to accept the plaintiff's nomination for chief in an upcoming election. The plaintiff conceded that the Custom Election Bylaw of 1984 reflected band custom, but argued that the Blood Band's election procedures were governed by the Indian Act rather than by band custom, and that the band's election procedures violated the Canadian Charter of Rights and Freedoms. Mr. Justice Heald dismissed the plaintiff's action. The band's election procedures were validly governed by band custom, and, assuming that the Charter applies to the band's Custom Election Bylaw, the plaintiff's rights under sections 3,7, or 15 of the Charter were not violated. Crow demonstrates that a band official can be lawfully removed for irregularities in the band departments of public works and housing for which he was responsible, found to be misconduct reflecting on the dignity and integrity of the council.
The Law: Standard of Review
[60] The procedure to evaluate the standard of review was recently discussed by Mr. Justice Bastarache in Pushpanathan v. M.C.I.1:
| (1) Factors to Be Taken into Account |
| [29] The factors to be taken into account in determining the standard of review have been canvassed in a number of recent decisions of this Court, and may be divided into four categories. |
| [30] The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors strongly indicate the contrary as regards the particular determination in question... . |
| [32] Described by Iacobucci J. in Southam, supra, at para. 50, as "the most important of the factors that a court must consider in settling on a standard of review", this category includes several considerations. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. In Southam, the Court considered of strong importance the special make-up and knowledge of the Competition Act tribunal relative to a court of law in determining questions concerning competitiveness in general, and the definition of the relevant product market in particular. |
| (iii) Purpose of the Act as a Whole, and the Provision in Particular |
| [36] As Iacobucci J. noted in Southam, supra, at para. 50, purpose and expertise often overlap. The purpose of a statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. These considerations are all specific articulations of the broad principle of "polycentricity" well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies. A "polycentric issue is one which involves a large number of interlocking and interacting interests and considerations" (P. Cane, An Introduction to Administrative Law (3rd ed. 1996), at p.35). While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint. The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the "statutory purpose". |
| (iv) The "Nature of the Problem": A Question of Law or Fact |
| [37] As mentioned above, even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention, as this Court found to be the case in Pasiechnyk, supra. Where, however, other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure determinations of law. The justification for this position relates to the question of relative expertise mentioned previously. There is no clear line to be drawn between questions of law and questions of fact, and, in any event, many determinations involve questions of mixed law and fact. An appropriate litmus test was set out in Southam, supra, at para. 37, by Iacobucci J., who stated: |
| Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. (Pushpanathan, [1998] 1 S.C.R. pp. 1005-10) |
Analysis: Standard of review
a. Privative Clause
[61] No privative clause exists in the election policy. Therefore, lower or lesser deference is warranted.
b. Expertise
[62] The electoral officer is appointed during a public meeting and has no particular expertise. Therefore, lower deference should and can be shown towards her decisions.
c. Purpose of the Act and of the Provision in Particular
[63] No application of open-textured legal principles infuses the election policy. This evokes a lower standard of deference.
d. Question of Law or Fact
[64] The decision of the electoral officer involves an interpretation of the election policy. This decision is akin to, or is, a decision of law. Therefore, a lower standard of deference is warranted.
e. Conclusion
[65] This Court holds that decisions of the electoral officer warrant only low deference and that the appropriate standard of review is correctness.
Decision: Scope of the Electoral Officer's Authority
[66] This Court holds that the electoral officer was incorrect in accepting a petition which she knew to be flawed. That no basis exists in the election policy to reject a petition does not excuse her from refusing to exercise reasonable, fair, discretion to reject a petition which she knows contains flaws.
d. Court Intervention
Applicant's Submissions
[67] Although the notion of aboriginal self-government is a goal towards which many aboriginal communities strive (although it is not expressed in the Constitution), Courts have recognized that they must step in where an injustice exists. Aboriginal persons have no constitutional immunity from the Court's authority. The applicant submits the Sparvier case to support this position. In Sparvier, Rothstein J. reviewed the role of the Court in aboriginal matters:
| Respondents' counsel takes the position that because the procedure of the Appeal Tribunal was in accordance with Band custom, the degree of natural justice or procedural fairness owed to the applicant is minimal. To hold otherwise, it was said, would render nugatory the procedures followed by all other bands in Canada who elect their officials according to their own custom, because the Court would simply be imposing its rules of procedure in place of customary band procedures. |
| No authority was cited by counsel for the respondents to the effect that the principles of natural justice or procedural fairness are not to be applied in situations where band custom dictates procedures to be followed by band tribunals. |
| While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural justice and procedural fairness are to be applied. (Sparvier, 63 F.T.R. pp.253-254 ) (emphasis added) |
Respondent's Submissions
[68] The respondents submit that the court should not interfere with the functioning of an Indian band for the following reasons:
| a. Its self-governance will be forever damaged and the jurisdiction of the first nation to operate pursuant to its self governance processes will always be called into question; |
| b. The authority of the leadership of the first nation will always be the subject of conjecture and stains that the first nation will continue to have to bear as its chief is a person who not only has committed dishonest acts toward the first nation but who has managed to get the Courts to sanction these dishonest acts by prohibiting the first nation from carrying out its clear self-governance processes; and |
| c. By interfering in this matter where the first nation self-governance processes have clearly been followed to the letter, the Court will forever invite the losing side in that self-governance process to appeal to the Courts. |
[69] The respondents submit Big Stone v. Big Eagle1 to demonstrate that the courts should decline to intervene in band affairs where the applicant has not demonstrated on a balance of probabilities that the band was acting illegally in a way which permits intervention by the Court. The respondents offer McLeod Lake v. Chingee1 to show that Courts must not interfere with Council selection procedures that are rooted in band customs that are generally acceptable to Band members and upon which there is a broad consensus. Madam Justice Reed stated:
| I am persuaded that Parliament intended, when enacting the relevant provisions of the Indian Act, that it would be for the band to determine the custom that would govern its selection of the "council of the band." This follows from the nature of custom which is practice established or adopted as a result of the individuals to whom it applies having accepted to be governed in accordance therewith. (McLeod Lake, p. 259)(emphasis added) |
[70] The respondents also submit that it is too late for Douglas Ballantyne to complain about unfairness. The respondents submit McLeod Lake to illustrate that the lack of a timely objection demonstrates that an election was conducted in accordance with band custom. In McLeod Lake, Reed J. refers to Bone v. Sioux Valley Indian Band No. 290 Council1 and states:
| Mr. Justice Heald went on to note that the election had been conducted in accordance with the election code that was being challenged, with no objection being registered until the election was lost. He interpreted the lack of objection at an earlier date as evidence that the election had been conducted in accordance with what the band had adopted as band custom. (McLeod Lake, p. 261) (emphasis added) |
Decision: Court Intervention
[71] This Court rejects the proposition that it should not intervene. This Court adopts Mr. Justice Rothstein's statement in Sparvier that members of a band are individuals who are entitled to due process and procedural fairness in procedures which affect them. No one can deny their humanity, and they are accordingly entitled to equality of civil and constitutional rights with all other humans in Canada. This Court rejects the application of Crow to this case because Crow did not deal with procedural fairness but with the application of the Canadian Charter of Rights and Freedoms.
[72] While the lack of a timely objection may bar an applicant in some circumstances, this is not one of them. The applicant barely had time to organize for the referendum. Moreover, if he had won the referendum, the application would be moot. Therefore, the applicant has not acquiesced in the election results because he did not immediately object. Moreover, no provision exists in the election policy for the applicant to object. Such an avenue of objection is an ordinary civil and human right of which the applicant, chief or band member, is not to be deprived.
[73] Finally, the respondent relies greatly a broad consensus as a basis to exclude the Court. Less than half of the eligible electors cast a ballot in the referendum, and only 154 of them voted to remove the applicant. This hardly indicates a broad consensus to remove the applicant from his position.1
7. Remedies
[74] The following cases demonstrate some of the remedies that this Court has ordered when dealing with contested Indian Band elections.
Sparvier v. Cowessess Indian Band No. 73 1
[75] In Sparvier, Mr. Justice Rothstein held
| [4] In my reasons dated May 12, 1993, I indicated that no order quashing the May 5, 1992 decision of the Appeal Tribunal would issue at that time. The quashing of that decision would have the consequence of invalidating the May 22, 1992 election and restoring the results of the April 24, 1992 election even though the validity of the April 24, 1992 election has still to be properly determined. Mr. Lavallée would have to step down and Mr. Sparvier would assume the position of Chief, possibily only until the determination of the new Appeal Tribunal as to the validity of the April 24, 1992 election. In my view this would be unnecessarily disruptive of the administration of the Band. |
| [5] In R. v. Paddington Valuation Officer (Ex Parte Peachey Property Corporation Ltd.), [1966] 1 Q.B. 380; [1965] 2 All E.R. 836 (C.A.), an order of certiorari was delayed to avoid the inconvenience resulting from a ruling that a rating list was invalid. The existing rating list was to be left in place until a new list had been prepared. |
| [6] While the implication for an order for directions in this case is that the May 5, 1992 decision of the Appeal Tribunal is invalid, I am of the view, following Paddington, supra, that the judicial exercise of discretion contemplates the court deciding upon the timing of the effect of its quashing order to ensure, as far as possible, that the effect of its order does not cause unnecessary disruption to the administration of the Band. Delaying the effect of the qushing order in this case would assist in the accomplishment of this objective. |
| [7] The decision of the Appeal Tribunal dated May 5, 1992, is quashed. However, the execution of this quashing order shall be stayed until the date the new Appeal Tribunal determines whether to uphold the April 24, 1992 election, the May 22, 1992 election, or if it decides to call a new election, to the day following the new election.(Sparvier, p.268) |
Parisier v. Ocean Man first nation
[76] Parisier concerned an application for judicial review of a decision of an electoral officer arising from an election of chief and four councillors of the Ocean Man first nation. The applicant and another electoral candidate were tied for the position of councillor. The electoral officer decided to declare the other candidate the winner, because she had been a councillor before, and because there was a spoiled ballot which, if counted, would have been in her favour. The application for judicial review was allowed in part, and the declaration of the electoral officer that the other candidate was elected a councillor in the band's elections was quashed. However, the court would not go further and direct that a run-off election be held, nor would it award any remedy against the Chief-and-Council. The Court refused to direct a run-off election because a significant amount of time had elapsed and the functioning of the council had not been impeded. Moreover, an election was upcoming in less than one year. The Court refused to grant a remedy against the Chief-and-Council because they were not parties to the impugned decision and had not acted on that decision.
Sucker Creek Indian Band v. Calliou
[77] In Sucker Creek, after deciding that the band had illegally removed the applicant from his position, Mr. Justice Rouleau set aside the band resolution and declared the applicant as having been, and as remaining to be the Chief of the Sucker Creek first nation at all times since his election.
Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs)1
[78] Long Lake Cree Nation concerned the determination of the validity of two elections held for the purpose of electing the chief and members of the plaintiff Indian Band. Rouleau J. held that the previous two elections were both invalid because the Chief-and-Council were immune from recall during the duration of their term, except for specified reasons, and pursuant to specified procedures under the band's electoral law. The result was that the only council of the band, currently in existence and found to be valid at law, was the council elected before the previous two elections.
8. Decision
[79] The jurisprudence demonstrates that this Court may fashion a remedy appropriate to the circumstances. This Court quashes the petition for failing to comply with the election policy and for a lack of procedural fairness to the applicant. This Court quashes the decision by the council to remove the applicant as chief because it was based on the defective petition. This Court quashes and sets aside the results of the subsequent referendum because it was called as a result of the defective petition. This Court quashes the decision of the election officer to render the applicant ineligible to participate in future elections. This Court declares the applicant to be Chief of the Grand Rapids Indian Band pursuant to the election of June 23, 1999.
[80] The respondent shall pay the applicants costs of this action (in any sum upon which the parties can agree, or) in the amount required by the mid scale of Column IV of the Table in TARIFF B to rules 400 and 407.
Judge
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1 [1993] 3 F.C. 142, (1993) 63 F.T.R. 242 (F.C.T.D.).
2 R.S.C. 1985, c. I-5.
3 (1996) 108 F.T.R. 297. pp. 299-300.
4 (1999) 171 F.T.R. 275.
5 C.C.S.M. c. 180.
6 R.S.C. 1985, c. I-21.
7 R. Sullivan, Statutory Interpretation (Concord, Ont.: Irwin Law, 1997).
8 [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th ) 193 (S.C.C.).
9 (1993) 63 F.T.R. 242
10 [1992] 3 S.C.R. 165, (1992) 97 D.L.R. (4th ) 17 (S.C.C.).
11 See Derrickson v. Tomat (1992), 88 D.L.R. (4th) 401 (B.C.C.A.).
12 (1996), 107 F.T.R. 270, [1997] 3 C.N.L.R. 76 (F.C.T.D.).
13 [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th ) 193 (S.C.C.).
14 (1992) 52 F.T.R. 109, [1993] 1 C.N.L.R. 25 (F.C.T.D.).
15 (1998) 153 F.T.R. 257, (1998) 165 D.L.R. (4th ) 358 (F.C.T.D.).
16 (1996), 107 F.T.R. 133, [1996] 3 C.N.L.R. 54 (F.C.T.D.).
17 See Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), infra note 17 for a discussion about the lack of broad consensus.
18 (1993) 66 F.T.R. 266
19 [1995] F.C.J. No. 1020, T-496-95, T-551-95, June 29 1995, Rothstein J.
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