Date: 20061206
Docket: A-274-06
Citation: 2006 FCA 397
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
CHIEF PETER BILL AND
COUNCILLORS DENNIS LEWIS, ROMEO THOMAS,
FREDERICK WHITEHEAD, WILLIE THOMAS, PETER
SAKEBOW,
AND DAVID THOMAS
Appellants
and
THE PELICAN LAKE APPEAL BOARD
(HEREINAFTER “THE APPEAL BOARD”),
RAYMOND DUMAIS, DEBBIE THOMAS, ALDEN
HARRIS, ELMER THOMAS,
JOHN UTZ, AND FRANCIS THOMAS, JIMMY BILL,
HARRY THOMAS,
CHARLES RABBITSKIN, WAYNE THOMAS, GARRY
THOMAS,
AND CALVIN THOMAS
Respondents
Heard at Saskatoon, Saskatchewan, on November
22, 2006.
Judgment delivered at Ottawa, Ontario,
on December 6, 2006.
REASONS FOR JUDGMENT BY:
LÉTOURNEAU J.A.
CONCURRED
IN BY:
PELLETIER J.A.
MALONE J.A.
Date:
20061206
Docket: A-274-06
Citation: 2006 FCA 397
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
MALONE J.A.
BETWEEN:
CHIEF PETER BILL AND COUNCILLORS DENNIS
LEWIS, ROMEO THOMAS,
FREDERICK WHITEHEAD, WILLIE THOMAS, PETER
SAKEBOW,
AND DAVID THOMAS
Appellants
and
THE PELICAN LAKE APPEAL BOARD (HEREINAFTER “THE APPEAL
BOARD”),
RAYMOND DUMAIS, DEBBIE THOMAS, ALDEN
HARRIS, ELMER THOMAS,
JOHN UTZ, AND FRANCIS THOMAS, JIMMY BILL,
HARRY THOMAS,
CHARLES RABBITSKIN, WAYNE THOMAS, GARRY
THOMAS,
AND CALVIN THOMAS
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
appeal against a decision of O’Keefe J. of the Federal Court (judge) who, on an
application for judicial review, set aside two decisions (March 15 and March
23, 2004) of the Pelican Lake Band Appeal Board (the Board). He then ordered
that the matter be remitted to the Board for a redetermination in accordance
with the Pelican Lake Election Act (Act).
[2]
The March
15 decision of the Board certified the results of the March 5, 2004 election to
be null and void. The March 23 decision is the follow-up decision that called a
by-election to be held on April 16, 2004, but limited to those candidates who
ran in the March 5 election.
[3]
The
appellants were successful before the judge in having the two decisions set
aside. However, they appealed before us against the remedy granted to them.
They allege that the Board showed bias or behaved in a manner that gave rise to
a reasonable apprehension of bias. Consequently, they say, the judge should not
have remitted the matter to the same Board.
[4]
The judge
did not address the issue of bias. He set aside the two decisions of the Board
on the basis that the Board had omitted to follow the appeals procedure
stipulated in the Act and give the appellants adequate notice of the appeal
hearing. At paragraph 59 of his decision, he alluded to the fact that the
matter could not be referred to a differently constituted Board as there was no
provision in the Act to constitute another Board.
[5]
Assuming,
without deciding the issue, that the conduct of two members of the Board may
have given rise to a reasonable apprehension of bias, the fact remains, as
pointed out by the judge, that there is no other Board than the one constituted
under the Act for the March 5, 2004 election.
[6]
Pursuant
to section 11 of the Act, the Board’s function is to certify the election
results if there is an appeal. The members of the Board hold office until all
appeals have been determined.
[7]
In this
instance, the judge had no other option than to remit the matter to the only
existing Board seized with the appeal.
[8]
In my
view, in these circumstances, the doctrine of necessity applies. In Sparvier
v. Cowessess Indian Band, [1993] 3 F.C. 142, at page 172-173, Rothstein J.
of the Federal Court (as he then was) wrote:
The doctrine of
necessity arises in cases in which, when no one else is empowered to act,
otherwise disqualified tribunal members… may be qualified to hear and determine
an appeal. The principle is stated in Administrative Law by Sir William Wade, 6th
ed., 1988 at page 478:
In all the cases so far
mentioned the disqualified adjudicator could be dispensed with or replaced by
someone to whom the objection did not apply. But there are many cases where no
substitution is possible, since no one else is empowered to act. Natural
justice then has to give way to necessity; for otherwise there is no means of
deciding and the machinery of justice or administration will break down.
[9]
Therefore,
the judge committed no error in remitting the matter to the only Board empowered
to deal with it.
[10]
I cannot
leave this appeal without mentioning the deplorable state of the election
process governing the Pelican Lake First Nation. Although the appellant, Chief
Peter Bill, has been elected four times since 1999, he has never been certified
as Chief of Pelican Lake First Nation: see respondents’ memorandum of fact and
law, at paragraph 4. All elections have been challenged and the process has
dragged on.
[11]
In the
present instance, the March 5, 2004 election has been declared null pursuant to
allegations of corruption, misuse of funds and threats. The decision of the
Appeal Board has been challenged successfully in part. New legal proceedings
have been thereafter instituted against the Board to prevent it from holding
the hearing ordered by the judge. In addition, an application to stay the
judgment of the judge has been granted with the result that the appeal against
the March 5 election cannot proceed. In the meantime, injunctive orders have
issued maintaining the elected parties in their respective elected offices as
of March 6, 2004: see appeal book, volume I, tab III (d), (e), (h), (i), (j)
and (k). The next election is due in just about three months and the fate of
the March 5, 2004 election has not yet been determined. Our decision will lift
the stay against the decision of the judge, but there will still be proceedings
pending in the Federal Court against the Board to prevent it from holding the
hearing ordered by the judge. It is obvious that the new election will come
before a hearing can be held on the March 5 election and, therefore, will
render moot the challenge to the previous election. In a sense, our decision is
also moot and of no practical effect.
[12]
This is an
unsatisfactory and very costly state of affairs for all participants, including
the judicial system, which undermines and compromises the integrity of the
election process of the Pelican Lake First Nation. The members of the Band are
entitled to elect their representatives and be governed by duly elected
representatives. In light of the past and present history, it is obvious that,
unless there is an intervention of a third party to take over the election
process and ensure its integrity, the situation is most likely to repeat
itself.
[13]
For these
reasons, the appeal will be dismissed without costs.
“Gilles
Létourneau”
“I
agree
J.D.
Denis Pelletier J.A.”
“I
agree
B.
Malone J.A.”
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