Date: 20081223
Docket: T-1778-08
Citation: 2008 FC 1413
Vancouver, British Columbia, December 23, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
FRIEDA MARTSELOS
GLORIA VILLEBRUN
BRADLEY LAVIOLETTE and
FREDERICK
BEAULIEU
Applicants
and
DAVID POITRAS, TONI HERON
and RAYMOND
BEAVER
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Frieda Martselos, Ms. Gloria Villebrun, Mr. Bradley Laviolette and Mr. Frederick
Beaulieu (the “Applicants”) seek judicial review of a ruling made on November 6,
2008 by the Salt River First Nation Appeals Arbitrator, in connection with
an appeal hearing undertaken pursuant to the Salt River First Nation
Customary Election Regulations (the “CER”).
[2]
Mr.
David Poitras, Ms. Toni Heron and Mr. Raymond Beaver (the “Respondents”) are
the appellants in the proceedings before the Appeals Arbitrator, and the
Applicants in the within proceeding are the respondents in the appeal
proceeding.
[3]
The
appeal proceeding before the Appeals Arbitrator relates to an election held on August 25,
2008.
The Respondents were unsuccessful candidates in the election and on August 29,
2008, they filed a Notice of Appeal alleging certain corrupt election practices
as their grounds of appeal.
[4]
Ms.
Katharine L. Hurlburt, a lawyer practising in Edmonton, Alberta, was
appointed as the Appeals Arbitrator pursuant to the CER for the purpose of the
appeal hearing. She convened a pre-hearing conference by teleconference with
the representatives of the parties and by letter dated September 18 and emails
exchanged on September 19, 2008, set out the pre-hearing procedure. This pre-hearing
procedure set out timelines for the completion of certain steps, including the
identification of witnesses, “will say” statements and documents to be relied
upon in the hearing.
[5]
The
election appeal began at Fort Smith, Northwest
Territories,
on November
4, 2008.
It was scheduled to be heard over three days, that is, November 4, 5 and
6.
[6]
On
November 6, 2008, the Appeals Arbitrator made an oral ruling that would allow
the Appellants before her to ask questions in relation to an alleged fraud even
though that ground was not identified in the Notice of Appeal. She subsequently
prepared written reasons. She found that Section 15.2.2 of the CER does not
preclude an appellant in an election appeal from adducing additional evidence
that was not described in the Notice of Appeal. At the same time, the Appeals
Arbitrator refused to allow the election appellants to introduce copies of
certain cheques as evidence in support of the alleged fraud.
[7]
The
hearing before the Appeals Arbitrator adjourned on November 6, 2008, to allow
the Applicants herein to bring this application for judicial review. According
to the Court file, the Applicants obtained an Order from Justice Snider on
November 25, 2008, abridging the time for perfecting this application and
setting the matter down for hearing at Vancouver, British
Columbia,
on December 16, 2008.
[8]
By
Direction issued on December 8, 2008, the parties were advised to address the
nature of the decision underlying this application for judicial review in light
of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. The
parties filed supplementary submissions as to whether the decision is an
interlocutory one.
[9]
The
Applicants argue that the Appeals Arbitrator has misinterpreted section 15 of
the CER by effectively allowing the Respondents to amend their Notice of
Appeal. They submit that she acted beyond her jurisdiction.
[10]
The
Respondents submit that the Appeals Arbitrator possesses jurisdiction to allow
a new ground of appeal or to admit evidence that is not set out in the Notice
of Appeal.
[11]
The
Applicants argue that in the event that the Court finds this decision to be an
interlocutory decision, then special circumstances exist to justify a final
decision on the application as they say that the Appeals Arbitrator can claim
no special expertise since this is the first appeal pursuant to the CER.
[12]
For
their part, the Respondents submit that the decision is an interlocutory one
and no special circumstances exist to justify intervention at this stage.
Nonetheless, they ask that the Court make a determination that the allegation
of fraud is within the scope of the Notice of Appeal and that subsections
15.2.2(c), (d) and (e) of the CER should be construed as permissive and not
mandatory.
[13]
The
law is clear. As a general rule, judicial review of interlocutory decisions is
not available. In that regard, I refer to the decisions in Szczecka v. Canada (Minister of
Employment and Immigration) (1993), 116 D.L.R. (4th) 333 and Canada (Minister of
Citizenship and Immigration) v. Varela (2003), 300 N.R. 183.
More recently, in CHC Global Operations, a division of CHC Helicopters
International Inc. v. Global Helicopter Pilots Assn., 2008 FCA 344
the Federal Court of Appeal said the following at paragraph 3:
3. Even if one accepts Mr.
Fairweather's proposition that the Canada Industrial Relations Board has
made a final decision, it does not follow that we should intervene. The
policy reasons which underlie the practice of declining to hear appeals from
interlocutory decisions do not turn on whether the decision is right or wrong.
Justice is better served if the tribunal below is allowed to complete its work
(see paragraph 2 of Prince Rupert Grain Ltd., supra) so that appeals to
this Court can proceed on the basis that all contested issues can be reviewed
in one hearing on the basis of a comprehensive record.
[14]
I
am not persuaded that any special circumstances exist in the present case to
justify a departure from the general rule that interlocutory decisions are not
subject to immediate judicial review. At the end of the appeal process, the
Appeals Arbitrator may ultimately dispose of the appeal on grounds other than
the point in issue, that is, an alleged fraud.
[15]
In
any event, a remedy is available to the Applicants herein, that is, the appeal
respondents once the Appeals Arbitrator renders her final decision. That remedy
is an application for judicial review before this Court.
[16]
In
the result, this application for judicial review is dismissed with costs to the
Respondents, such costs to be assessed in the full discretion of the assessment
officer.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review is
dismissed, costs to the Respondents to be assessed in the full discretion of
the assessment officer.
“E.
Heneghan”
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