Date: 20100330
Docket: T-966-08
Citation: 2010 FC 342
Ottawa, Ontario, March 30,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
BERNADETTE
DUMAIS
Applicant
and
FORT MCMURRAY NO. 468 FIRST NATION
AND ALBERT CREE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms. Bernadette Dumais is a member of the Fort McMurray First Nation
(FMFN) and a former band councillor. She ran for the office of Chief at an
election held in April 2008, but lost in a close vote. Ms. Dumais maintains
that there were serious problems with the election. In particular, she submits
that the list of electors was not posted in accordance with the FMFN’s election
regulations. In addition, she suggests that there were suspicious circumstances
surrounding the election which caused her to believe that supporters of the
persons elected at the time were receiving favours in return for their support.
[2]
On these grounds, Ms. Dumais challenged the results of the election. An
Appeal Committee dismissed her appeal. The Committee found that there was
insufficient evidence to support Ms. Dumais’ allegations. Ms. Dumais now argues
that the Committee erred in failing to set aside the results of the election.
However, I can find no grounds for overturning the Committee’s decision and
must, therefore, dismiss this application for judicial review.
II. Issues
[3]
There are two issues:
1. What
standard of review applies to the Committee’s decision?
2. Did the Committee err in law or in its fact-finding when it
dismissed Ms. Dumais’ appeal?
III. Analysis
A. What standard of review
applies to the Committee’s decision?
[4]
The appropriate standard of review to be applied to the decision of an
appeal committee was addressed by Justice Eleanor Dawson in Giroux v. Swan
River First Nation, 2006 FC 285. She concluded that the appropriate
standard is correctness in relation to interpretations of the law and patent
reasonableness in respect of fact-finding. After that case was decided, the
Supreme Court of Canada rendered its decision in Dunsmuir v. New
Brunswick, 2008 SCC 9. The Court held that there are two possible
standards of review: correctness and reasonableness. Patent unreasonableness is
no longer applicable. Accordingly, the standard applicable to the Committee on
questions of law should be correctness and, in respect of fact-finding,
reasonableness. I note that the Federal Court of Appeal came to the same
conclusion regarding decisions of a band council in Martselos v. Salt
River Nation #195, 2008 FCA 221, para. 28.
B. Did
the Committee err in law or in its fact-finding when it dismissed Ms. Dumais’
appeal?
(a) Alleged
Error of Law
[5]
Ms. Dumais argued before the Committee that the list of electors was not
posted in compliance with the FMFN Customary Election Regulations. The
Regulations require that the first list be posted 21 days before the election
(s. 6.1). The second list must be posted 12 days before the election (s. 8.1).
Ms. Dumais argued that the second list was not posted until April 16, 2008 and
should have been posted on April 14, 2008. Ms. Dumais also maintained that the
second list was not posted in a public place as required by the Regulations
(ss. 6.1, 8.1).
[6]
The Committee found that the list of electors was posted in keeping with
the Regulations. The election took place on April 28, 2008. The uncontradicted
evidence showed that the first list was posted on March 28, 2008, well before
the 21-day deadline. The second list was posted on April 16, 2008, exactly 12
days before the election, as the Regulations require. The first list was posted
at the Band Store, the Band Administration Building and the Health Centre, all
public places. The second list was posted at the Band Store and the Band Administration
Building, although the latter was closed. In any case, the list clearly was
posted publicly, in accordance with the Regulations.
[7]
I can see no misinterpretation of the Regulations by the Committee.
(b) Alleged
Errors in Fact-finding
[8]
Ms. Dumais suggests that the Committee made two errors of fact. First,
the Committee failed to find that some ineligible voters had been allowed to
cast ballots in the election and some eligible voters were denied that
opportunity. Second, the Committee failed to conclude that there was evidence
of corrupt practices surrounding the election.
[9]
Much of the evidence supporting these submissions is contained in Ms.
Dumais’ affidavit, filed on this application for judicial review. FMFN points
out that this evidence was not before the Committee. Further, the affidavit
contains a good deal of hearsay, the reliability of which is unknown. The
affidavit also contains argument and speculation.
[10]
It is difficult to know what evidence was before the Committee because
there is no record. However, Ms. Dumais did make written submissions to the
Committee outlining her concerns. Those submissions are very brief and do not
include references to the vast array of information contained in her affidavit
supporting this application for judicial review. Yet, they summarize the
issues Ms. Dumais put before the Committee and the information on which she was
relying. I must consider whether the Committee’s conclusions were reasonable
light of what appears to have been put before it, not the more expansive record
that is before me.
[11]
Regarding improprieties in voting, Ms. Dumais has not provided evidence,
even on this application, to support her allegations. Before the Committee, she
raised concerns about amendments to the voters list and the availability of
statutory declarations on election day for those who were not on the list. The
Committee found that statutory declarations were available at the polling
station, and that one elector had sworn one. It also found that the Electoral
Officer turned away some prospective voters based on her interpretation of the
residency requirement in the Regulations, and allowed some people to vote based
on verbal information they provided. I can see nothing unreasonable about the
Committee’s conclusion. The Electoral Officer appears to have properly
performed her role as described in the Regulations (s. 8.8).
[12]
As for alleged corrupt practices, the Committee stated that “no evidence
was adduced at the hearing that supports the allegation”. In her written
submissions to the Committee, Ms. Dumais stated that she intended to present to
the Committee records of improper payments. It does not appear that she did so.
The Committee went on to say that, if there was evidence available to support
the allegations of corruption, it should be presented to the proper
authorities, not the Committee. Ms. Dumais suggests that the Committee was
abdicating its supervisory role. I do not read the Committee’s decision as a
refusal to perform its mandate. Rather, given that the Committee had not been
given any evidence, it merely suggested that, if evidence was available to
support Ms. Dumais’ allegations of corruption, it should be presented to proper
authorities, presumably the police. Again, I can see nothing unreasonable about
the Committee’s conclusion.
IV. Conclusion and Disposition
[13]
The Appeal Committee did not err in finding that the FMFN electoral
lists were properly posted. Its conclusion was not unreasonable that Ms.
Dumais’ allegations, both of impropriety in voting procedures and of corrupt
practices, were unsupported by the evidence. Accordingly, I must dismiss this
application for judicial review, with costs.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1. The application for judicial
review is dismissed with costs.
“James
W. O’Reilly”
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