Docket: T-74-16
Citation:
2016 FC 1165
Montréal, Quebec, October 19, 2016
PRESENT: The
Honourable Madam Justice St-Louis
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BETWEEN:
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WARREN SCOTT McCALLUM
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Applicant
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and
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PETER
BALLANTYNE CREE NATION PETER BALLANTYNE CREE NATION COUNCIL OF THE ELDERS, DARLENE WATSON,
FLORENCE CLARKE, FLORENCE McKAY, ELIAS SEWAP, GEORGE P. CLARKE, PHILIP RAY
SR., ELIZABETH MERASTY, SAMSON BALLANTYNE
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Peter Ballantyne Cree Nation (PBCN) is a
First Nation band in northern Saskatchewan comprised of 8 communities. In April
2015, it held an election, and Mr. Warren Scott McCallum, the applicant, was
then re-elected as Councillor for the PBCN Urban area, pursuant to the terms of
the Peter Ballantyne Cree Nation Election Code of 2014 [the Election
Code].
[2]
However, on November 16, 2015, PBCN Urban Members
sent Chief Peter A. Beatty and Council a letter requesting Mr. McCallum’s
immediate suspension without pay from his elected position, and attached to
their letter a Petition to Remove Councillor Warren McCallum from Office [the
Petition] bearing 207 signatures. More signatures were added afterwards,
bringing the total numbers of signatories to 260.
[3]
On December 10, 2015, after executing removal
procedures under the Election Code, the Council of Elders decided to remove Mr.
McCallum from his elected position as Councillor, effective the same day, decision
challenged in these proceedings.
[4]
Mr. McCallum thus seeks his reinstatement as
Councillor for the PBCN Urban area and compensation for the earnings lost from
December 13, 2015 to the date of the filing of his application, representing an
amount of $7,400.00, and interests.
[5]
As exposed hereinafter, the Court will allow the
application, being convinced there is no evidence the Petition that prompted
the Council of Elders to consider Mr. McCallum’s removal from office was signed
by 25% of the Electors of the affected community, as required under paragraph
12(h) of the Election Code. This flaw is, in the Court’s view, fatal to the
removal process.
II.
Relevant context
[6]
First the parties agree that it is within this
Court’s jurisdiction to hear this matter (Sparvier v Cowessess Indian Band #73,
[1993] 3 FC 142).
[7]
As per its section 1, the Election Code is
authorized by the Electors of the PBCN, and it represents an agreement and
covenant between the people of the PBCN. This Election Code contains the
proclamation of Inherent Rights, and provisions pertaining, inter alia,
to the eligibility to vote, the eligibility to run for the position of Chief or
Councillor, the term of office, the election and nomination procedures, the
Appeal Tribunal, the standard of conduct for the Chief and the Councillors, and
at play in these proceedings, provisions on the role and authority of the Council
of Elders and on the process leading to the Chief or a Councillor’s removal
from office.
[8]
The parties also agree that the Council of
Elders, as per section 6 of the Election Code, reproduced in annex, have a
mentoring and guidance role as they must “ensure that
Peter Ballantyne Cree Nation Chief and Council are abiding by the Standards of
Conduct and Oath of Office as contained in this Election Code and the
provisions in any PBCN legislation involving the executive.”
[9]
Section 12 of the Election Code relates to the Removal
from office and its paragraph (h) states that a Member may file a complaint
against a councillor provided he has a duly signed petition. It is worthy to
reproduce paragraphs 12(h) and (k):
REMOVAL FROM
OFFICE
12. Once duly elected by Members of the Peter
Ballantyne Cree Nation, the Chief and Councillors are accountable to all
Members and as such they may be removed from office if they: […]
h. To file a complaint against a PBCN Councillor, a Member must have
a petition signed by twenty five per cent (25%) of the Electors from the
affected reserve/community. This petition must be presented to the Chairperson
of the PBCN Council of Elders. […]
k. The decision of the PBCN Council of Elders is final and binding.
[10]
The extent of the Council of Elders’ authority
is disputed in these proceedings, however, it is not in dispute that it must
determine if the Petition referred to in paragraph 12(h) meets the required
threshold of being signed by 25% of the Electors of the affected community.
[11]
Therefore, as stated earlier, on November 16,
2015, PBCN Urban Members sent Chief Peter A. Beatty and Council a letter of
complaint requesting Mr. McCallum’s immediate suspension without pay and attached
to their letter the Petition bearing 207 signatures. More signatures were added
afterwards, bringing the total number of signatories to 260.
[12]
In a nutshell, the Petition contends that “Councillor Warren McCallum has failed to abide by the
Standards of Conduct as cited in the PBCN Election Code of 2014, by violating
the Oath of Office and failing to provide a Criminal Record Check at the time
of the April 2015 Elections, thereby acting in an dishonorable manner”
and provides for certain factual concerns.
[13]
On the same day, Chief Peter A. Beatty handed
over the PBCN Urban Members’ Petition to the Council of Elders, and instructed
them to deal with it.
[14]
The Council of Elders’ first duty is to
determine if a petition respects the requirement set at paragraph 12(h), hence
that it is signed by 25% of the Electors of the affected community. In this
case, the Council of Elders calculated the percentage of signatures using as
denominator the number of Electors of the Urban area who had actually voted in
the 2015 election instead of the total number of Electors of the Urban area. The
Council of Elders justified their action to use the number of voters in the
2015 election as denominator by the fact that the total number of Electors in
the Urban area was then not available or unknown.
[15]
On November 23, 2015, Mr. McCallum attended a
first meeting with the Council of Elders where he was read the Petition for the
first time, and asked to answer the concerns. Meetings were again held on
November 24 and 25, 2015.
[16]
On November 25, 2015, the Council of Elders held
an internal meeting and decided to suspend Mr. McCallum without pay. As per
provisions of paragraph 12(g) of the Election Code, on December 2, 2015, the
Council of Elders met with Chief Beatty and Vice-Chief Harold Linklater; on
December 3, 2015, the Council of Elders held a community meeting and finally, on
December 10, 2015, it rendered the final decision removing Mr. McCallum from
office.
[17]
Mr. McCallum’s position then being vacant, a
PBCN Urban By-Election was called for February 4, 2016. However, on February 3,
2015, our Court granted Mr. McCallum an interim injunction, prohibiting the
PBCN from holding a by-election to replace Mr. McCallum as Councillor for the
Prince Albert Urban area until further Order of this Court.
III.
Issues
[18]
The parties ask the Court to determine if Mr.
McCallum’s removal from office breached procedural fairness and natural
justice, if the Council of Elders held the power and authority to remove Mr.
McCallum, and finally to determine if the decision to remove Mr. McCallum is
reasonable or not.
IV.
Standard of Review
[19]
The Court agrees with the respondent that the issues
of procedural fairness and natural justice attract the correctness standard (Metansinine
v Animbiigoo Zaagi'igan Anishinaabek First Nation, 2011 FC 17 [Metansinine]
at para 16; Henry v Roseau River Anishinabe First Nation, 2014 FC
1215 at para 29). The issue as to whether the Council of Elders has the
authority to remove Chief and Council, absent addiction concerns, attracts the
reasonableness standard as the Court must interpret a First Nation election
regulation (Orr v Fort McKay First Nation, 2012 FCA 269 at paras 10-11; D'Or
v St. Germain, 2014 FCA 28).
[20]
The issue pertaining to the lack of evidence confirming
the number of Electors who are required to sign the Petition so as to form at
least 25% of the Electors of the affected community is a question of mixed law
and fact, and thus attracts the reasonableness standard (Democracy Watch v
Campbell, 2009 FCA 79).
V.
Submissions of the Parties
A.
Submissions of the Applicant
[21]
Mr. McCallum submits essentially that the respondent
breached procedural fairness and natural justice, that the Council of Elders
did not have the power and authority to remove him from his position of Councillor
and that the issues raised in the Petition itself were groundless. Mr. McCallum
submitted at the hearing that all the issues attracted the reasonableness
standard.
[22]
On the first issue, Mr. McCallum submits
essentially that (1) a fair notice should have been given (Metansinine);
(2) there is no evidence that the Petition was signed by 25 % of the Electors of
his community; (3) the Council of Elders could not remove him before examining
the financial reports and statements and should thus have waited for all the
necessary information before deciding; and (4) the affidavit material of the respondent
was filed by deponents who do not speak the English language and did not understand
what they were signing.
[23]
Mr. McCallum submits in particular that the Petition
that prompted the PBCN Council of the Elders to consider his removal was in
breach of paragraph 12(h) of the Election Code as it did not contain the signatories
of at least 25% of the Electors from his Urban area, that many of the
signatories were not members or residents of his Urban area and relies on the
paragraph 12(g) of the Election Code which states that “a
Member must be a Resident in the reserve, community or surrounding areas, to be
eligible to vote for the Council position in that community.” He further
submits that no evidence was presented by the respondent confirming the total
number of eligible Electors which would be required to form the 25% of
signatories to the Petition and that no evidence was presented of an
announcement or a practice to advise the voters that the Petition was
circulating.
[24]
On the second issue, Mr. McCallum submits that (1)
the role of the Council of Elders is essentially to mentor and guide the Chief
and Council and not to remove Chief and Council from office, unless addiction
issues are raised; and (2) the Council of Elders should recognize or want the
authority which is in dispute, and that they do not all so recognize or want
this authority (cross-examination of Philip Morin, from page 49 to page 60, as
well as on the cross-examinations of John Dorion and Elias Sewap who
purportedly acknowledged that the removal of a Councillor from office should be
left to Chief and Council).
[25]
On the third issue, Mr. McCallum contests the
issues raised in the Petition itself as he conducted his duties as Councillor
diligently and opposes the accusation of his misappropriation of funds.
B.
Submissions of the Respondent, the Council of
Elders
[26]
The respondent’s Memorandum of Fact and Law is
the one prepared on behalf of the Council of Elders, the other respondents not
having participated.
[27]
The Council of Elders submits that (1) there was
procedural fairness in the decision to remove Mr. McCallum as Urban Councillor;
(2) it has the power and authority to remove Chief and Council under the
Election Code; and (3) its decision was reasonable.
[28]
On the first issue, the Council of Elders does
not dispute that Mr. McCallum has the right to natural justice and procedural
fairness, but submits that the requirements in that regards have been met here.
It relies on the criteria set out by the Supreme Court in Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] and
Lakeside Colony of Hutterian Brethren v Hofer, [1992] 3 S.C.R. 165 and
points out that it was not part of the Petition process nor aware of it, that
it received the Petition, determined there were sufficient signatures to proceed
with the complaint, provided Mr. McCallum with notice, consulted with Council
members, met with Mr. McCallum on three occasions to provide him with fair
opportunity to respond to the concerns and issues, proceeded to have an
internal meeting, proceeded to have a further meeting with Chief Beatty and
proceeded to hold a community meeting and that the decision was made in
accordance with the provisions of the Election Code.
[29]
In regards to the determination that there were
sufficient signatures to proceed with the complaint, and central to these
proceedings, the Council of Elders acknowledged that the Petition should
represent at least 25% of the Electors of the affected community and that they
calculated the percentage against the number 1008, being the number of votes
registered for the Urban area in the 2015 election as per the 2015 Elections
Final Report. They used this reference based on the fact that, at the time of
the decision, there was no conclusive information as to the number of eligible
voters residing in the Urban area because the list of eligible Electors had
been destroyed after the election. Mr. McCallum speculated there may be 3,500
to 4,000 members living off reserve, but the respondent asserts there is no
evidence to support this number or to support the claim that some of the signatories
to the Petition are not Urban Members of the PBCN.
[30]
With this chain of events, the respondent submits
that the Council of Elders carefully complied with section 12 of the Election
Code as it is clear the applicant received notice and was aware of the concerns
and issues as outlined in the Petition. It is the applicant who refused to
cooperate with the Council of Elders during this process and who rather decided
to focus his efforts on challenging the authority of the Council of Elders.
[31]
Regarding Mr. McCallum’s argument that there is
no evidence of an announcement or a practice to advise the Electors that the
Petition was circulating, the respondent submits that there is no requirement
in the Election Code that the Council of Elders announces the Petition or engages
in a practice to advise the Electors that a petition is circulating and refers
to paragraph 12(h) of the Election Code. Furthermore, the respondent submits
that a reasonable apprehension of bias could be raised if there was such a
requirement for the Elders to be involved in the process.
[32]
The respondent also rejects Mr. McCallum’s
argument that a fair notice to the potential Electors would be required in a
fair and just process and distinguishes Metansinine from the present
case. Indeed, according to the respondent, the Council of Elders, unlike a
council of a First Nation, is not mandated to play any role in the process of
voting in Chief and Council. The role of the Council of Elders is rather
limited to providing guidance and support to Chief and Council, ensuring that
Chief and Council are abiding by the Standards of Conduct and Oath of Office,
hearing complaints and requesting that an elected official seek professional
assistance for substance abuse, provided that certain requirements are met.
Moreover, the respondent recalls that the Council of Elders invited the Urban Members
of PBCN to attend a community meeting where all members could speak and voice
their concerns and stresses that the Election Code does not expressly require a
referendum or vote in order to remove a Councillor.
[33]
On the second issue, the Council of Elders submits
that section 12 of the Election Code confers the power to hear and decide upon
a complaint, and such power was upheld when Chief Beatty requested the Council
of Elders to deal with the Petition.
[34]
The respondent disagrees with Mr. McCallum’s submission
that it does not have the power and authority to remove Chief and Council
unless addiction issues are raised and first addressed with support. According
to the respondent, even if abuse of alcohol is specifically addressed in paragraph
12(j) of the Election Code, it is not the only ground to remove Chief and
Council, such grounds for removal being contained in paragraphs 12(a) to (f).
[35]
Furthermore, while Mr. McCallum relies on the
cross-examinations of Mr. Philip Morin, Mr. John Dorion and Mr. Elias Sewap to
submit that “a majority of the Elders do not purport to
have the authority to remove Chief and Council from office, but rather, are
required to play a very important mentoring and guiding role”, the respondent
rather argues that Mr. Morin was referring to personal experience he had in the
past with unrelated matters for mischief and alcohol abuse, and made it clear
that he was expressing a personal opinion and not necessarily the opinion of
the Council of Elders.
[36]
On the third issue, the respondent submits that
if this Court determines that the decision of the Council of Elders was made in
accordance with the principles of procedural fairness and natural justice, and
that the Elders do have the power and authority to remove Chief and Council
under the Election Code, it must then determine whether the decision to remove Mr.
McCallum from office was reasonable.
[37]
The respondent submits that the decision of the
Council of Elders to remove Mr. McCallum from office was reasonable. To support
its position, the respondent draws similarities between the present case and
the decision Pellissey v Pehdzeh Ki First Nation, 2014 FC 1214 at paragraph
3 where the applicant “was aware of the allegations
against her, informed of the proceedings, and given a chance to defend herself.
Further, the First Nation’s decision was based on evidence relating to [the
applicant’s] conduct leading up to the meeting and, therefore, was not
unreasonable”.
[38]
The respondent furthermore submits that there is
evidence before the Court to indicate misconduct by Mr. McCallum, including the
Petition which outlined specific concerns and issues, speeches by Urban Members
during the community meeting held on December 3, 2015, as well as written
letters submitted by Urban Members of the PBCN which are attached to the
affidavit of Darlene Watson.
[39]
The respondent does not agree with Mr.
McCallum’s submission that its affidavit material was filed by deponents who do
not speak the English language, did not understand what they were signing, and
did not understand the process or understand that they were adopting the
affidavit evidence of Darlene Watson. The respondent argues that because John
Dorion does not read, the Notary Public who witnessed the affidavit of John
Dorion, read him the affidavit. The respondent also submits that many
statements made by Mr. Dorion during his cross-examination illustrate that he
did understand and accept the affidavit of Darlene Watson, and that he provided
several replies in the English language (respondent’s Memorandum of Fact and
Law at paras 74‑76). Similarly, the respondent submits that Elias Sewap
confirmed that the affidavit of Darlene Watson had been read to him and that he
has shown some ability to speak the English language. Furthermore, there is no
issue raised by the applicant regarding the affidavits of Darlene Watson,
Philip Ray, Florence McKay, Elizabeth Merasty, and Florence Clarke.
(1)
Costs
[40]
While the applicant is requesting costs on a
solicitor-client basis, the respondent submits that “[t]he
Supreme Court has held that solicitor-and-client costs are generally awarded
only in circumstances where there are been reprehensible, scandalous, or outrageous
conduct on the part of one of the parties” and refers in particular to Baker
(respondent’s Memorandum of Fact and Law at para 79). The respondent contends
that such circumstances are not present in this case.
VI.
Decision
[41]
The Court will limit its decision to one issue
that allows for granting of the present application.
[42]
The parties agree that the Election Code is the
agreement and the covenant between the people of the PBCN.
[43]
In turn, section 12 of the Election Code sets
the process for removal of office, and its paragraph h) outlines the
requirement to set in motion the removal of a councillor from his duly elected
position. Hence, a Member’s complaint must be accompanied by a petition signed
by 25% of the Electors of the affected community, and the respondent admits
that this number refers to all the Electors of the affected community.
[44]
However, to assess the 25% threshold, the Council
of Elder was not provided with the number of Electors in the Urban area, but
rather with the number of votes registered in the 2015 Elections (1008), as the
number of Electors was unavailable, the lists having been destroyed after the
2015 election. The Council of Elders had clearly no real and precise indication
as to the total number of Electors of the Urban area on which to base its
calculation.
[45]
The removal from office of a duly elected
official and the departing from the agreement and covenant between the people
of the PBCN are not trivial issues.
[46]
The Council of Elders holds the important duty
of safeguarding the process that trumps the removal from office of a councillor.
The Election Code is unequivocally clear in requesting the Petition be signed
by 25% of the Electors of the affected community, and failing a precise calculation,
the process should, in my view, fail. The reason raised to justify the
departure from the clear wording of the relevant section is unacceptable given
the gravity of the consequences for the Councillor (Prince v Sucker Creek
First Nation #150A, 2008 FC 1268 at paras 48-49, aff’d 2009 FCA 40).
[47]
Regardless of the standard of review applicable
in this situation, this flaw in the process is, in the Court’s view, unreasonable,
incorrect and unfair. It is fatal and allows for granting of the application
and setting aside of the Council of Elders’s decision of December 10, 2015.
[48]
Mr. McCallum has asked for costs on a
solicitor-client basis and, at the hearing, for costs to compensate damages
resulting from his removal from office.
[49]
The Court will grant neither, as first, the
evidence does not show the respondent’s conduct during the litigation as being
reprehensible, scandalous, or outrageous so to attract costs on a
solicitor-client basis (Baker at para 77) and second, as the Court has
no jurisdiction to grant damages in an application for judicial review context
failing conversion of the application into an action (Hinton v Canada
(Minister of Citizenship & Immigration), 2008 CAF 215 at para 45; Sivak
v Canada (Minister of Citizenship and Immigration), 2011 FC 402 at para 43)
as per section 18.2 of the Federal Courts Act, RSC, 1985, c F-7, which
has not been raised here.
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