Date:
20110202
Docket:
A-55-10
Citation: 2011 FCA 37
CORAM: SHARLOW J.A.
TRUDEL J.A.
STRATAS J.A.
BETWEEN:
THE
COMMUNITY PANEL OF THE ADAMS LAKE
INDIAN BAND
Appellant
and
THOMAS PHIL DENNIS, OF THE
ADAMS LAKE BAND,
RESIDENT AND AN ELECTOR AND
ON BEHALF OF MY
RELATIVES AND OTHER ADAMS LAKE BAND MEMBERS
Respondent
REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
This is an appeal and a cross-appeal from a judgment of the
Federal Court: 2010 FC 62. The judge held that the Community Panel of the Adams
Lake Indian Band lost its legal authority to decide certain election appeals.
According to the judge, this happened because one of the members of the Community
Panel resigned just before the remaining members signed a document evidencing
their decision. In his view, this brought the Community Panel below quorum.
Therefore, the judge set aside the Community Panel’s decisions dismissing the
election appeals.
[2]
For the reasons set out below, I disagree. I would allow the
appeal and dismiss the cross-appeal, set aside the judgment of the Federal
Court and dismiss the application for judicial review. This result will restore
the decisions of the Community Panel dismissing the election appeals.
A. The
facts
[3]
Elections in the Band are regulated by the Adams Lake Secwepemc
Election Rules. The Band approved and adopted these Election Rules after they
received majority support in a referendum. In this appeal, all parties agree
that the Election Rules governed a Band election held on February 14, 2009. In
that election, a Band Council and a Chief were elected for a term of three
years. The respondent, Thomas Phil Dennis, ran for election. He was unsuccessful.
[4]
Under the Election Rules, a Band member may appeal against the
election result on the ground of ineligibility of a candidate, corrupt
practices in the election, or violations of the election rules that might
affect the election results. Such appeals are investigated, considered and
determined by a body known as the Community Panel. Mr. Dennis and others appealed
against the election results, alleging irregularities and improprieties.
[5]
Well before the controversies arising from the election – indeed,
before any candidates were nominated for the election – the Band appointed the
Community Panel. Five persons were appointed. This was because of a requirement
under article 19 of the Election Rules: “[a] Community Panel of five (5)
persons shall govern and decide all proceedings held to dispute an election
held in accordance with these Election Rules…”. Nowhere do the Election Rules relax
this five person requirement.
[6]
Under article 27 of the Election Rules, the Community Panel must
determine the appeal within thirty days. The five persons on the Community
Panel met, investigated the appeals, and received submissions over a number of
days. It devoted the final two days of the thirty day period to considering the
merits of the appeals.
[7]
At 3:10 p.m. of the very last day, after deliberations had been
completed and midway through the Community Panel’s voting process, one of the
five members of the Community Panel, Mr. Rodney Jules, suddenly resigned. He
produced a letter setting out his reasons for resignation. All of his reasons
related to the merits of the appeals before him. He was concerned about the
procedure for mail-in ballots, the time period for the absentee ballot process,
and the need for the Community Panel to address all of the election
irregularities raised in each appeal and evaluate their seriousness. The
resignation letter shows that his mind was made up on the appeals, he had
reasons in mind, and he knew he was outvoted on the appeals by the other four
members.
[8]
Mr. Jules’ resignation letter concluded with the statement that
the Community Panel “cannot rule without a full roster” and so “this puts
[it]…back to the community” for resolution. Based on this statement, the judge
found (at paragraph 9 of his reasons) that Mr. Jules’ resignation was intended
“to frustrate the work of the Community Panel and to thereby place the appeals
before ‘the community’.” However, this intention was directly contrary to the
Election Rules as ratified by the community in a referendum. The Election Rules
provide that appeals lie only to the Community Panel, and not to the community
itself.
[9]
After the sudden resignation, the Community Panel sought and
received legal advice about article 19 and its requirement that “five (5)
persons shall govern and decide all proceedings held to dispute an election
held in accordance with these Election Rules.” The Community Panel then completed
its voting process as a group of four, with no further deliberations,
dismissing the appeals by votes of four to zero. One appeal was dismissed on
the basis that the evidence did not establish a valid ground for appeal. The
other appeals were dismissed on the basis that although there were technical
breaches of the Election Rules, they did not affect the election results. The
Community Panel prepared documents dismissing each appeal. The four remaining
members signed these documents.
B. The
Federal Court’s decision
[10]
The judge found on the basis of several authorities that the
five-person requirement in article 19 of the Election Rules established a
quorum for the Community Panel and, thus, was “a fundamental jurisdictional
requirement that cannot be excused by the right of a decision-maker to
determine its own procedure or…the consent of the parties” (at paragraph 21). In
his view, the resignation of the single member deprived the Community Panel of
its five person quorum and, thus, its jurisdiction to rule on the appeals. On
that basis, he allowed the application for judicial review, quashed the
decisions of the Community Panel dismissing Mr. Dennis’ election appeals, and
ordered those appeals to be redetermined on the merits by a newly-constituted
Community Panel. He awarded the applicants costs in the amount of $1,500
inclusive of disbursements.
[11]
It is evident from the judge’s reasons (at paragraphs 21 and 22) that
he regretted this loss of jurisdiction by the Community Panel as a result of a
“very late” and “unfortunate” resignation. He found that the Community Panel
had conducted itself fairly, appropriately and diligently. He recognized that his
decision might cause “political uncertainty,” “impose administrative burdens on
the Band,” and add “costs and inconvenience.” However, those regrets were not
sufficient to deter the judge from making the order that is now the subject of
this appeal and cross-appeal.
C. The
parties’ submissions in this Court
[12]
In this Court, the appellant submitted that the Community Panel
had the jurisdiction to decide the appeals as a body of four. It submitted that
article 19 specified only a “composition requirement” rather than a “quorum
requirement,” and that there were certain authorities supporting this: Montreal
Trust Co. v. The Oxford Pipe Line Co., [1942] O.R. 260 (H.C.), aff’d [1942]
O.R. 490 (C.A.); Murray v. Rockyview (Municipal District No. 44) (1980),
110 D.L.R. (3d) 641, 12 Alta. L.R. (2d) 342; Canada (A.G.) v. Allard,
[1982] 2 F.C. 706, 49 N.R. 301 (C.A.); Boucher
v. Métis National of Alberta Association, 2009 ABCA 5, [2009] 2 W.W.R. 581.
It also submitted that the Community Panel had inherent jurisdiction to decide the
appeals as a body of four. Finally, it submitted that the Community Panel was
master of its own procedure and could continue to vote as a four person panel
if it chose to do so.
[13]
I do not accept the appellant’s submissions. Article 19 is worded
in a particularly strict way. It requires, unconditionally and unequivocally,
that appeals be governed and decided by five persons. The authorities cited by
the appellant must be viewed with caution because they do not set out the text
of the relevant provisions, they concern provisions that allow quorum
requirements to be relaxed, or they concern provisions that do not impose
quorum requirements at all. As for inherent jurisdiction, “statutory
tribunals…do not enjoy any inherent jurisdiction” (see Tranchemontagne v. Ontario
(Director, Disability Support Program), 2006 SCC
14 at paragraph 16, [2006] 1 S.C.R. 513) and so it is hard to see how the
Community Panel established under the Election Rules enjoys such a
jurisdiction. Finally, while the Community Panel is master of its own procedure
(Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at
page 685, 69 D.L.R. (4th) 489), absent an express power to amend or depart from
the Election Rules, it cannot change the requirements of article 19.
[14]
The respondent submitted to us that article 19 was intentionally
drafted as a “democratic safeguard” to permit a member to resign and to prevent
the Community Panel from deciding an appeal, thereby requiring the entire community
to decide the appeal. However, in argument, the respondent fairly admitted that
the record does not show evidence of such an intention. Further, had this been
the intention, one would have expected a rule requiring that decisions be
unanimous, failing which an appeal could be taken to the entire community. There
is no such rule.
[15]
The respondent also urged us that his Band needed to be governed
democratically and effectively in order to address the problems and hardships
he sees in his community. His submissions were passionate, eloquent and moving.
However, as an appellate court, we can only examine the evidence in the record
and address the narrow legal issue in this appeal: whether the decisions of the
Community Panel should be quashed because the resignation caused the Community
Panel to lose its quorum under article 19 of the Election Rules.
D. Did the Community Panel lose its quorum and, if so,
at what point?
[16]
As mentioned above, the Federal Court judge found that the
resignation of the single member deprived the Community Panel of its five
person quorum and, thus, its jurisdiction to rule on the appeals. The judge found
that the “jurisdiction of a decision-maker is dependent upon the maintenance of
a proper quorum from the beginning to the end of the adjudicative process” (at
paragraph 12). In his view, having a quorum through to the completion of an adjudicative
process is necessary. As the Community Panel lost its quorum before the
completion of its adjudicative process, it lost its authority to decide the
election appeals.
[17]
In argument, the appellant accepted that the Community Panel fell below
the five person requirement in article 19. Instead, in argument, it focused
on the issue whether the Community Panel could proceed as a panel of four. In
doing this, it did not address the judge’s finding that quorum was lost before
the completion of its adjudicative process. The respondent also did not address
this issue.
[18]
In
my view, based on the particular record filed in this appeal, the Community
Panel completed its adjudicative process before it lost its quorum. When it
lost its quorum, all that was left to do was to complete the administrative
work necessary to signify formally its decision and communicate it to the
parties. However, since we did not receive argument on this issue and since I
do not need to decide this point in order to determine this appeal, I decline
to rule definitively upon it. However, for the benefit of future litigants, I
would like to offer some observations on this issue.
[19]
The Federal Court judge was correct when he held that the
Community Panel needed to maintain a quorum until its adjudicative process was
complete. The leading case is IBM Canada Ltd. v. Canada
(Deputy Minister of National Revenue, Customs & Excise – M.N.R.), [1992]
1. F.C. 663, (1991), 129 N.R. 369 (C.A.).
There must be “a meeting of the minds,” with each member being “informed at
least in a general way of the point of view of each of his colleagues,” the
Community Panel as a group must “at some point in time…reach a decision
collectively,” and each member must participate “individually in that
collective decision by agreeing with it or dissenting from it”: IBM, at
page 675. The members acting together must make “one united, though not
necessarily unanimous, decision”: IBM, at page 674. In substance, this
means that the quorum must be present through the completion of the
adjudication process, when all minds are made up.
[20]
However, the judge did not determine on the facts whether a quorum
was present through the completion of the adjudication process. Instead, he found
that the quorum was not present for the actual rendering of the decision, in this
case, the signing of a sheet of paper formally evidencing the collective
decision. In his words, the Community Panel “render[ed] its decisions in
the absence of a full complement of five members” and “rendered its
decisions…in the absence of one of its members” (emphasis added, at paragraphs
10 and 12).
[21]
In IBM, this Court found that quorum might not be required
for the actual rendering of the decision. Justice Décary, speaking for the
Court, said that there is “no absolute rule, as legislative provisions, rules
of practice and actual practices may vary from one tribunal to the other”:
IBM, at page 675. He also said that “signature
does not necessarily equate with participation” and “non-signature does not
necessarily equate with non-participation”; rather, the key consideration is to
determine whether a quorum was present throughout the entire adjudicative
process, looking at the “meeting of the minds” described in paragraph 20, above:
IBM, at page 675.
[22]
The post-IBM case law shows that we must examine the
legislative and factual context in order to see whether the absence of a
signature on a decision matters. In Singh v. Canada
(Minister of Citizenship & Immigration), [1998] 3
F.C. 127, 224 N.R. 227 (T.D.), the Court found that formal signification from
all members of a Board was necessary. In that case, the Board was acting under
subsection 69.1 of the Immigration Act, R.S.C. 1985, c. I-2, which
provides for the decision most favourable to the refugee claimant to prevail
where the adjudicators are split. Formal signification was necessary in order
to know for sure if there was a split. In Mehael v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 838 (T.D.), decided under
the same legislative provision, the Court decided that a lack of signature
could be overlooked if the evidence establishes that the non-signing member did
participate in the decision and that his or her position on the merits of the
decision was clear (at paragraph 13). In that case, the evidentiary burden was
not met.
[23]
Turning to the case at bar, article 19 of the Election Rules
requires that five persons on the Community Panel “decide” the appeals. There
is no definition of “decide,” and there is no requirement that decisions be
formally signified in writing. Unlike Singh, where formal signification
of the decision was necessary under the particular legislative scheme, the Election
Rules contain nothing that would make formal signification a necessary step in
the process of the Community Panel. Finally, the record contains no evidence of
a practice of requiring formal signification of a decision of the Community
Panel.
[24]
In my view, there is a strong argument on the facts of this case
that quorum under article 19 was not lost. All five members of the Community
Panel, including the resigning member, participated over multiple days (see
paragraphs 6-9, above). When deliberations ended and voting began, all five
members, informed in their deliberations by the views of the others, had reached
a decision on the merits of the appeals:
(a)
Four members had made up their minds and had decided to dismiss
the appeals. The four later evidenced their decision by signing a document.
(b)
The resigning member had also made up his mind. In his resignation
letter, he expressed his disagreement with the other members of the Community
Panel on the merits of the appeal, setting out his reasons. This is a case
where, unlike Mehael, there is ample evidence showing that the resigning
member did participate in the overall decision and had reached a conclusion
concerning it.
One could argue that the
decisions of the Community Panel were made with the requisite quorum under
article 19 of the Election Rules and so they should not be quashed.
[25]
However, as I mentioned above, the parties did not raise this
point in written or oral argument, so I decline to rule on it definitively. Instead,
I prefer to determine this appeal on a fully argued ground – namely that as a
matter of judicial discretion the Community Panel’s decisions should not be
quashed.
E. The
discretion not to quash the decisions
[26]
In my view, the appeal should be allowed on the basis that even if
the Community Panel lost its legal authority to render its decisions dismissing
the election appeals, as a discretionary matter its decisions should not have
been quashed.
[27]
Although the judge found that the Community Panel had lost
jurisdiction, he correctly recognized (at paragraph 21) that he had the discretion
under subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7
not to quash the Community Panel’s decisions. The judge recognized certain
factors against quashing the Community Panel’s decisions, but ultimately decided
to quash them.
[28]
Just one week after the judge released his decision, the Supreme
Court of Canada released its decision in MiningWatch Canada v. Canada
(Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. MiningWatch
Canada provides us with more guidance about the power of a reviewing court not
to quash a decision of an administrative body, even when there are grounds for
doing so.
[29]
In MiningWatch, the Supreme Court found that certain
aspects of an environmental assessment process did not comply with the Canadian
Environmental Assessment Act, S.C. 1992, c. 37: the responsible authorities
“acted without statutory authority” and in contravention of “the requirements
of the [Act]” (at paragraphs 42 and 52). However, the substantive decisions
made by the responsible authorities at the end of that non-compliant process
were not challenged. The Supreme Court adopted a balance of convenience
approach, looking at a very broad range of factors, and found that there was
“no justification” to quash the substantive decisions made and force everyone
to go through the assessment process again (at paragraph 52). The Court
acknowledged that its approach would “allow a process found not to comply with
the requirements of the CEAA to stand.” However, this was preferable to the
potentially disproportionate impact that quashing the decision would have had
on the parties and the broader community.
[30]
The message in MiningWatch is that the broadest range of
practical factors must be considered and legal error or non-compliance should
not be given undue weight: the practicalities may outweigh the legalities.
[31]
This Court may substitute its own discretion on this matter where
“the judge at first instance has [not] given weight to all relevant
considerations”: MiningWatch Canada, at paragraph 43. See also Friends
of the Oldman River Society v. Canada (Minister of Transport), [1992] 1
S.C.R. 3 at paragraph 104, and Mazda Canada Inc. v. Mitsui O.S.K. Lines Co.,
2008 FCA 219, [2009] 2 F.C.R. 382 at paragraphs 17-20.
[32]
In my view, the judge did not give weight to all relevant
considerations. He took into account some factors such as possible political
uncertainty, administrative burdens, and added costs and inconvenience that
might arise if the election appeals had to be redone. Based on those factors
and noting the importance of enforcing the legal quorum requirement in article
19 of the Election Rules, the judge found that “[t]hese are not considerations
which ought to stand in the way of [granting] discretionary relief in this
case” (at paragraph 21). However, as will be seen below, there were other
relevant considerations to weigh and, as held in MiningWatch, the legal
quorum requirement, even as interpreted by the judge, does not necessarily
predominate.
[33]
First, the resigning member’s motives are an important consideration
in the exercise of discretion in this case. The resigning member had fully
evidenced his decision and the reasons for it in his resignation letter. He resigned
in order to stop the Community Panel from completing the mandate given to it
under the Election Rules and to do what he could to prevent the decision from
taking effect. His resignation caused no difference to the substantive outcome
of the appeals: as I have mentioned above, in a very real sense four of the
five members had already decided to dismiss the appeals.
[34]
Further, the cost of redoing the appeals must be evaluated not
just in abstract, but against the other needs of the Band. The record shows
that the needs of the Band are significant. Quashing the Community Panel’s
decision would cause the Band to expend its time and resources on appeals that,
for all practical purposes, have already been investigated, considered and
determined. On the other hand, there is nothing in this evidentiary record to
suggest that a Band meeting to settle upon the composition of a new Community
Panel and a re-running of the appeals before it would have any beneficial
effects whatsoever.
[35]
Another important factor is that it is impractical to redo the
appeals. It may be that by 2012, the new Community Panel will have been appointed,
the appeals will have been redetermined and all recourse to the Federal Courts will
have been completed. But by then the three year terms of office of the existing
Band Council and Chief will have expired and a new election will be required anyway.
[36]
Yet another important factor is the difficulty in staffing a new
Community Panel to deal with the appeals. The Community Panel in this case was
staffed before any candidates for election had been announced. As a result, the
appeals were decided with an appearance of fairness and impartiality. The new
Community Panel will be staffed after the election results and during all of
the current controversy. The appearance of fairness and impartiality will
likely suffer.
[37]
In light of the foregoing, even if the Community Panel lost its
quorum under article 19 of the Election Rules, I would exercise my discretion under
subsection 18.1(3) of the Federal Courts Act and in accordance with the
principles in MiningWatch Canada to dismiss the application for judicial
review. This would leave in place the decisions of the Community Panel dismissing
the election appeals.
F. Decision
on the cross appeal
[38]
Mr. Dennis has brought a cross appeal raising very limited issues.
He seeks an order that the four remaining members of the Community Panel be prevented
from deciding any redetermination of the appeals. He also seeks an order that any
reconstituted Community Panel consider certain matters when it redetermines the
appeals. He also seeks enforcement of the costs award in the Federal Court’s
judgment. As I have decided that the Federal Court’s judgment must be set
aside, all of these issues are moot.
G. Proposed
disposition
[39]
For the foregoing reasons, I would allow the appeal and dismiss
the cross-appeal, set aside the judgment of the Federal Court and dismiss the
application for judicial review. In the circumstances of this case, I would award
no
costs in this Court or in the Federal Court.
"David
Stratas"
“I
agree
K. Sharlow J.A.”
“I
agree
Johanne Trudel J.A.”
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