Docket: A-364-14
Citation:
2015 FCA 122
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CORAM:
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GAUTHIER J.A.
RYER J.A.
NEAR J.A.
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BETWEEN:
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RICHARD
HORSEMAN
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Appellant
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And
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DUSTIN TWINN,
ELECTORAL OFFICER FOR HORSE LAKE FIRST NATION
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British
Columbia, on May 13, 2015).
RYER J.A.
[1]
This is an appeal from a decision of Justice O’Reilly
(the “Judge”) of the Federal Court (2014 FC 758), dated July 30, 2014,
dismissing an application for judicial review of a decision made by Mr. Dustin
Twinn in his capacity as the Electoral Officer for the Horse Lake First Nation (“the
Band”).
[2]
In a registered letter, dated October 11, 2013,
Mr. Twinn informed Mr. Horseman that he was ineligible to be a candidate for Band
Chief in an election scheduled for October 30, 2013. (the “Election”).
[3]
On October 16, 2013, Mr. Horseman responded with
an application for judicial review of Mr. Twinn’s decision to reject his
candidature in the Election.
[4]
In his application, Mr. Horseman sought:
a)
an interim injunction declaring that his removal
from the candidate’s List for Chief is invalid and contrary to the Horse
Lake First Nation Election Regulations, 1991 (the “Election Regulations”)
and restoring him to the Candidate’s List in the Election, and
b)
orders for the removal of Mr. Twinn as Electoral
Officer, and declaring himself to be a Candidate for Band Chief in the
Election.
[5]
By Order dated October 24, 2013, Justice
Katherine Kane of the Federal Court denied the request for an interim
injunction. No appeal was taken from her Order.
[6]
The Judge exercised his discretion and declined
to entertain the remaining aspects of the application for judicial review on
the basis that Mr. Horseman had failed to pursue an adequate alternative remedy
under the appeal provisions of the Election Regulations. In so concluding, the Judge
found, in paragraph 6 of his reasons, that:
a)
The appeal mechanisms under the Election
Regulations “[…] are far more convenient, expeditious,
and cost-effective than applying for judicial review in this Court.”;
b)
Mr. Horseman was aware of the appeal mechanisms
under the Election Regulations;
c)
The appeal remedies available under the Election
Regulations were drafted by members of the Band to suit local circumstances;
and
d)
The alleged error by Mr. Twinn “[…] related directly to the electoral process, for which the
remedy of an appeal was specifically provided […]”.
[7]
This Court has determined that discretionary
decisions – such as the decision of a Federal Court judge to decline to
entertain an application for judicial review because the applicant had failed
to pursue an adequate alternative remedy – are questions of mixed fact and law
that should be reviewed within the framework of Housen v. Nikolaisen, 2002 SCC 33. (See Jamieson Laboratories Ltd. v. Reckitt
Benckiser LLC and Reckitt Benckiser (Canada) Limited, 2015 FCA 104
and Imperial Manufacturing Group Inc. and Home Depot of Canada Inc. v. Decor
Grates Incorporated, 2015 FCA 100.) In paragraph 36 of that decision, the
Supreme Court of Canada determined that questions of mixed fact and law, in
respect of which there are no readily extricable questions of law, may be set
aside only if a palpable and overriding error can be established. In the same
paragraph, the Court held that questions of law are reviewable on the standard
of correctness.
[8]
Before this Court, Mr. Horseman asserts that the
decision of the Judge is premised upon two errors of law, which we assume, for
the purposes of these reasons, to be readily extricable questions of law. Thus,
if either of those errors is established, we can intervene and set aside his
decision.
[9]
Mr. Horseman asserts that the Judge erred in law
in concluding that the appeal provisions in sections 57 to 60 of the Election
Regulations provided him with any remedy – much less an adequate
remedy – with respect to Mr. Twinn’s decision to reject his candidature for Band
Chief in the Election.
[10]
Mr. Horseman argues that he could not appeal Mr.
Twinn’s decision under the Election Regulations because at the time of Mr.
Twinn’s decision, as well as at the time he filed his application for judicial
review, the Band had no Chairperson of the Appeal Board, as defined in section
58 of the Election Regulations. At all relevant times, Mr. Horseman says, the
office of the Chairperson of the Appeal Board was vacant. In furtherance of
this argument, Mr. Horseman asserts that the appointment of Mr. Craig Neuman,
Q.C., to fill that vacancy, was invalid. This was so, according to Mr.
Horseman, because the Band Council Resolution, dated October 21, 2013,
that authorized Mr. Neuman’s appointment was invalid on the basis that it was
passed by the Band Council after the date that the Election was called, when
the Band Council was no longer empowered to act.
[11]
We are unable to accept these assertions.
[12]
We do not agree with Mr. Horseman’s argument
that the potential consequences flowing from a dissolution of Parliament are
determinative of the validity of the Band Council Resolution appointing Mr.
Neuman to the office of Chairperson of the Appeal Board. Rather, the validity
of that resolution falls to be determined under the Election Regulations, which
have been put in place by the Band.
[13]
Section 9 of the Election Regulations reads as
follows:
9. Subject to these Regulations, each
Councillor shall hold office for a period of approximately FOUR (4) years
commencing on the date that he/she is declared to be elected and terminating on
the date that he/she is declared to be re-elected or his/her successor is
declared to be elected.
[14]
Under this provision, the term of office of
councillors endures until termination on the date of their re-election or the
date of the election of their successors. Thus, the powers of Band Councillors
who passed the resolution to appoint Mr. Neuman as Chairperson of the Appeal Board,
on October 21, 2013, were not diminished simply because the Election had been
called for October 30, 2013. It follows that the appointment of Mr. Neuman to
the office of Chairperson of the Appeal Board was not “null
and void” as asserted by Mr. Horseman.
[15]
Additionally, paragraph 57(b) of the Election
Regulations, reproduced below, stipulates that a Notice of Appeal must be filed
with the Band Council, and not the Chairperson of the Appeal Board, no
later than 30 days after the election in issue. Thus, a vacancy in that office
prior to October 30, 2013, the date of the Election, was irrelevant given that a
Notice of Appeal could have been filed at any time within 30 days after that
date. When Mr. Horseman filed his application for judicial review on October
16, 2013, it would have been impossible for him to know that a vacancy in the
office of Chairperson of the Appeal Board would not have been filled by a valid
resolution of the Band Council after, but within 30 days of, the date of the
Election.
[16]
Mr. Horseman asserts that regardless of the
disposition of the arguments that we have described above and rejected, the Judge
erred in law in concluding that the Election Regulations provided him with an
appeal right. Mr. Horseman says that he had no such right because appeal rights
under section 57 of the Election Regulations are available only to candidates
in the Election. And, because of Mr. Twinn’s October 11th decision,
he was not a candidate. That provision reads as follows:
57. (a) Any candidate or any Elector who voted may
lodge an appeal within THIRTY (30) days of the date of the election on the
grounds that:
(i) a person or persons nominated to be a candidate was
ineligible to be a candidate;
(ii) there was a violation of these Regulations that may have
affected the results of the election;
(b) Within the time stipulated by sub-section (a), an appellant
must file with the Council his/her Notice of Appeal setting out the grounds of
Appeal, stipulating the provision or provisions of these Regulations relied on
and the facts alleged AND a sworn affidavit verifying such facts and, at the
same time, pay the Deposit required by paragraph 57(c). The Notice of Appeal
shall also state the address of the appellant to which Notices can be sent by
the Appeal Board.
(c) Concurrently with filing the Notice of Appeal, the appellant
will pay the First Nation a Deposit of ONE THOUSAND ($1,000.00) DOLLARS on
account of the costs of the appeal. If the Deposit is not so paid, the Notice
of Appeal will be of no effect.
(d) If the appeal is successful, his/her Deposit will be refunded
to the appellant.
[emphasis added]
[17]
We cannot accept this assertion having regard to
the inclusion in paragraph 57(a) of the Election Regulations, of the words “…or any Elector who voted…”. Clearly, the appeal procedure
was available to both candidates and Electors who voted in the Election.
[18]
The record before the Judge, which includes
affidavit evidence of Mr. Horseman, contains no evidence establishing that Mr.
Horseman, a former Chief of the Band, was not an Elector, as defined in the
Election Regulations, which is essentially a Band member who is older than 18
years of age, or that he did not vote in the Election.
[19]
Moreover, having regard to this Court’s decision
in Wolfe v. Ermineskin, 2001 FCA 199, even if it could have been shown
that Mr. Horseman had no appeal right under section 57 of the Election Regulations
because he did not vote in the Election, the record contains no evidence that
he took any steps to see whether another candidate, or an Elector who did vote
in the Election, would have been prepared to file a Notice of Appeal containing
his concerns and grounds of appeal. Accordingly, we cannot to accept Mr.
Horseman’s assertion that access to the appeal mechanism under Election
Regulations was unavailable to him.
[20]
In conclusion, we have not been persuaded that
the Judge made the legal errors that Mr. Horseman has asserted. As such, we
find no basis to intervene in the Judge’s decision to decline to entertain Mr.
Horseman’s application for judicial review and therefore the appeal will be
dismissed with costs.
J.A.
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