Docket: T-1581-12
Citation: 2013 FC 1039
Ottawa, Ontario, October 15,
2013
PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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MERVIN D. GRANDBOIS
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Applicant
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and
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COLD LAKE FIRST NATION CHIEF AND COUNCIL
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mervin D. Grandbois (the “Applicant”) seeks an
order of mandamus to require the Chief and Council of Cold Lake First
Nation (“CLFN”, collectively the “Respondents”) to comply with a decision of CLFN’s
Appeal Committee (the “Appeal Committee”). In its decision of September 18,
2010, the Appeal Committee directed that a new election be called, delayed the
new election by four months so that the CLFN’s Election Law of May 27, 1986
(the “Election Law”) could be amended, struck certain provisions of the
Election Law, and held that all members of the CLFN over the voting age were
eligible to vote.
[2]
In his Notice of Application, the Applicant also
seeks a mandatory injunction requiring that the election be held, and costs on
a solicitor-client basis.
[3]
On October 23, 2012, Justice Russell denied the
Applicant’s motion for a mandatory injunction or order of mandamus on
the grounds that the Applicant could not bypass judicial review and seek a
mandatory injunction or order of mandamus in a motion. Justice Russell
also noted that the Applicant had not provided a sufficient evidentiary basis
to establish grounds for granting either a mandatory injunction or an order of mandamus.
[4]
CLFN held an election for Chief on June 16,
2010, and an election for councillors on June 30, 2010. These elections were
held pursuant to the Election Law. Various problems with the election were
alleged, including the failure to properly include non-resident CLFN members
and procedural irregularities.
[5]
Five members of the CLFN appealed the election
results, pursuant to the Election Law. On September 18, 2010, the Appeal
Committee, composed of members of a neighbouring First Nation, allowed the
appeal. The Appeal Committee found that the non-inclusion of Bill C-31, that is
non-resident band members, on the voter’s list was unconstitutional and not
saved by section 1 of the Charter of Rights and Freedoms, Part I to the Constitution
Act, 1982, c. 11 (U.K.), Schedule B (the “Charter”). The Committee ordered
a new election but delayed it by four months in order to allow for the Election
Law to be amended.
[6]
The Appeal Committee also struck sections 1(L),
4(E), 5(G) and 6(C) of the Election Law on the basis that they offended section
24(1) of the Charter and were not saved by section 1. The Appeal Committee further
declared that all CLFN members of voting age were eligible voting members and
had the right to run for political office. The decision stated that the Appeal
Committee presumed that it had the authority to declare a Charter remedy as a
“court of competent jurisdiction”, and that if it had exceeded its
jurisdiction, its decision was subject to judicial review.
[7]
In January 2011, the Chief and Council received
a legal opinion written by a Mr. James Duke which advised that the officials
did not have to step down because the Appeal Committee had exceeded its
jurisdiction. This legal opinion was distributed to the CLFN membership at a
band meeting in February 2011. Meetings and workshops were held from October
2010 to March 2011 to work on amendments to the Election Law. Community
consultations took place in November and December 2011.
[8]
In her affidavit filed in this application, Ms.
Judy Nest, a member of the CLFN states that it became clear through these
meetings that it would be difficult to make progress in this way. The Chief and
Council hired community members to take the draft door-to-door to explain the
proposals. Ms. Judy Nest also states that the Council intended to hold a
referendum on amendments in March 2013, and that the next election for Chief
and Council is scheduled for June 2013.
[9]
There is one issue arising in this application,
that is whether the Applicant is entitled to an order of mandamus. The
test for granting such an order is set out in Apotex Inc. v. Merck & Co.
and Merck Frosst Canada Inc. (1993), 162 N.R. 177 and requires an applicant
to establish the following elements:
1.
there must be a public legal duty to act;
2.
the duty must be owed to the applicant;
3.
there is a clear right to performance of that duty, in
particular:
(a) the applicant has satisfied all conditions
precedent giving rise to the duty:
(b) there was
(i) a prior demand for performance of the duty;
(ii) a reasonable time to comply with the demand
unless refused outright; and
(iii) a subsequent refusal which can be either
expressed or implied, e.g. unreasonable delay;
4.
where the duty sought to be enforced is discretionary,
the following rules apply:
(a) in exercising a discretion, the decision-maker
must not act in a manner which can be characterized as "unfair",
"oppressive" or demonstrate "flagrant impropriety" or
"bad faith";
(b) mandamus is unavailable if the
decision-maker's discretion is characterized as being "unqualified",
"absolute", "permissive" or "unfettered";
(c) in the exercise of a "fettered"
discretion, the decision-maker must act upon "relevant", as opposed
to 'irrelevant", considerations;
(d) mandamus is unavailable to compel the
exercise of a "fettered discretion" in a particular way; and
(e) mandamus is only available when the
decision-maker's discretion is "spent"; i.e., the applicant has a
vested right to the performance of the duty.
5.
no other adequate remedy is available to the applicant;
6.
the order sought will be of some practical value or
effect:
7.
the court in the exercise of its discretion finds no
equitable bar to the relief sought;
8.
on a "balance of convenience" an order in the
nature of mandamus should (or should not) issue.
[10]
Each party raised the question as to the
jurisdiction of this Court to grant the relief sought, albeit in different
ways.
[11]
The Applicant frames the issue of jurisdiction
in terms of the status of the Election Committee as a “federal board,
commission or other tribunal” whose decisions are subject to judicial review by
this Court. He relies on the decision in Felix v. Sturgeon Lake First Nation
(2011), 398 F.T.R. 88 at paragraphs 12-17 and Canadian Pacific Ltd. v.
Matsqui Indian Band, [1995] 1 S.C.R. 3 at paras. 21-23.
[12]
The Respondents deal with the issue of
jurisdiction in terms of the authority of the Appeal Committee to make an order
that gives rise to a “public legal duty to act”. In other words, the
Respondents question the scope of the authority conferred on the Appeal
Committee and whether its decision can give rise to a “public legal duty” for
action by the Respondents.
[13]
In my opinion, the Respondents have correctly
identified the issue of jurisdiction. This application for judicial review does
not involve “review” of the Appeal Committee’s decision as such, but an
examination of the scope of the Committee’s decision-making authority and the
effect of the decision that it made in this case.
[14]
The power of the Appeal Committee derives from
the Election Law of May 27, 2010. Clause 15 of that Law addresses the “Appeals
Committee”. Sections (A), (C) and (E) of that Law are relevant to the present
application and provide as follows:
A. The
Appeal Committee shall respect and follow the Cold Lake First Nations Election
Law.
[…]
C. The
Appeal Committee shall deal with the appeals at a public meeting of the
electors of the Cold Lake First Nations.
[…]
E.
The Appeal Committee can ask any person from Cold Lake First Nations to make
comments upon the appeal and to have a clear position on the traditional laws
of the Cold Lake First Nations people.
[15]
Clause 14 deals with appeals in general.
Sub-clauses (A), (C) and (G) are relevant and provide as follows:
A.
Any protest for the election of the Chief and Council must be made within
thirty (30) days of the election.
[…]
C.
All protests must outline the reasons for the appeal based upon the
traditional election law of the Cold Lake First Nations.
[…]
G. All
appeals shall be final at the completion of the review by the committee.
[16]
These provisions authorize the Appeal Committee
to “deal” with appeals “at a public meeting”. They do not authorize the
Committee to make a decision. The Appeal Committee is directed to “respect and
follow” the CLFN Election Law but no specific remedies are identified, for
implementation after an appeal.
[17]
The Respondents argue that the jurisdiction of
the Appeal Committee is limited to the areas over which the CLFN assigned it
authority, through the Election Law. In this regard, the Respondents rely on
the decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
[2010] 2 S.C.R. 650 at paragraphs 55 and 60.
[18]
The Respondents also rely on the decision in R.
v. Conway, [2010] 1 S.C.R. 765 at paragraphs 81-82 where the Supreme Court
of Canada held that if a tribunal has explicit or implied jurisdiction to determine
questions of law, it can consider and apply the Charter, including Charter
remedies, unless it is clearly shown that the legislation intended to exclude
the Charter from the tribunal’s jurisdiction.
[19]
In my opinion, the arguments advanced by the
Respondents as to the lack of jurisdiction of the Appeal Committee to grant the
remedies that it did and to order a new election are more persuasive than the
submissions advanced by the Applicant. The defining characteristic of an order
of mandamus is that it is a discretionary remedy whose availability
depends on whether the Applicant can meet the cumulative elements for that
remedy. Both the Applicant and the Respondents agree that the test to be met is
the one established by the Federal Court of Appeal in Apotex.
[20]
In my opinion, the Applicant has mistakenly
focused on the status of the Appeal Committee as a “federal board, commission
or other tribunal” as defined in subsection 2(1) of the Federal Cours Act,
R.S.C. 1985, c. F-7, without going further into the substantive question as to
the powers of that Committee.
[21]
The decision in Rio Tinto Alcan is
relevant because it highlights the obligation for a tribunal, such as the
Appeal Committee, to assess the limits of its powers. It must conduct that
assessment by reference to its enabling legislation, in this case the Election
Law. I refer to paragraph 60 of Rio Tinto Alcan where the Supreme Court
of Canada said the following:
60 […] A tribunal
has only those powers that are expressly or implicitly conferred on it by
statute. … The remedial powers of a tribunal will depend on that tribunal's
enabling statute, and will require discerning the legislative intent: Conway, at para. 82.
[22]
This case is unlike the situation in Meeches
v Meeches (2013), 447 N.R. 168 at paragraph 45, where the Federal Court of
Appeal said: “[t]he Election Act is clear and unambiguous as to the authority
of the Election Appeal Committee, which is set out in multiple provisions
throughout the Act.” This Election Law at issue in this case is not clear and
unambiguous.
[23]
In my opinion, having regard to the broad
language of the Election Law, the role of the Election Committee is limited to
respecting and following the Election Law and to identifying the traditional
laws of the CLFN.
[24]
There is no evidence in the record about those
traditional laws and the relationship, if any, with the Election Law and the
role of the Election Committee.
[25]
If the role of the Election Committee is limited
to an administrative or advisory, that is discretionary, role, then its
decision cannot give rise to a “public legal duty to act”. In these
circumstances, it follows that the remedy of mandamus is not available
to the Applicant. In my opinion, my finding as to the lack of a public legal
duty to act is dispositive of this application, however, I will briefly address
some of the elements of the Apotex test which the Applicant failed to
establish.
[26]
There is no evidence that the Applicant was
entitled to performance of the duty. He did not submit evidence that he demanded
performance of the duty, within a reasonable time for compliance and there is
no evidence of an alleged refusal, either express or implied, by the
Respondents to perform the duty. The evidence of Ms. Nest shows that the CLFN
membership authorized the Respondents to stay in office and to amend the
Election Law.
[27]
In any event, there would appear to be no
practical benefit in granting the remedy sought, even if the Applicant had met
his burden of showing the existence of a public legal duty to act. According to
the affidavit of Ms. Nest, revision of the Election Law has been in process
since September 2010. As well, a referendum was supposed to be held in March
2013, followed by new elections in 2013.
[28]
Again, I agree with and accept the Respondents’
submissions that the Applicant unduly delayed his pursuit of relief. He filed
this Application for Judicial review nearly two years after the decision of the
Election Committee and more than two years after the commencement of the
Respondents’ three year terms. I agree that there is no evidence of harm if the
status quo is maintained. While I acknowledge the possibility that there were
procedural irregularities with the June 2010 election, it seems that many of
the problems flow from the Election Law as it stood in 2010. Amendment of the Law
could eliminate the source of the problem.
[29]
In the result, the application for mandamus
is dismissed with costs to the Respondents on the basis of Column III of Tariff
B, pursuant to the Federal Courts Rules, SOR/98-106. I am not persuaded
that solicitor and own clients costs are justified in this case.
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