Docket: A-519-14
Citation: 2015 FCA 247
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CORAM:
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GAUTHIER J.A.
WEBB J.A.
GLEASON J.A.
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BETWEEN:
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HELEN JOHNSON,
CARL SAMPSON JR., RUSSEL MATHER, TED WHITE, GERALDINE ALEXCEE, CHRIS SANKEY,
EACH BEING COUNCILLORS OF THE LAX KW'ALAAMS BAND, AND JOHN HELIN, AND RUDY
KELLY, ALLAN HELIN SR., SHARON HURDELL, SHARON HALDANE AND CHERYL TAIT ACTING
AS THE COMPLAINTS AND APPEAL BOARD
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Appellants
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and
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ANDREW TAIT,
LAWRENCE SANKEY, BARB HENRY, STAN DENNIS, VICTOR KELLY, ROBBIE HUGHES, EACH
BEING COUNCILLORS FOR THE LAX KW'ALAAMS BAND, ACTING ON THEIR OWN BEHALF AND
ON BEHALF OF THE LAX KW'ALAAMS BAND COUNCIL AND MEMBERS OF LAX KW'ALAAMS
BAND, AND GARRY REECE, MAYOR OF THE LAX KW'ALAAMS BAND
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Respondents
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REASONS FOR
JUDGMENT
GLEASON J.A.
[1]
The appellants are members of the Band Council
of the Lax Kw’alaams Indian Band [the Band] and of a Complaints and Appeal Board
[the Appeal Board] that made a decision to remove the Band’s Mayor, Garry Reece,
from office. The respondents are other members of the Band Council, who opposed
the Mayor’s removal, and Mr. Reece.
[2]
In a Judgment issued November 20, 2014, Justice
Manson of the Federal Court overturned the decision removing the Mayor (2014 FC
1102). His Judgment provided that:
1.
The dismissal of a previous Appeal Board by the
Band Council was unreasonable, contrary to the Band’s Election Regulations and
invalid;
2.
The process for the appointment of the new Appeal
Board (that made the impugned decision to remove the Mayor) was unfair and
unreasonable and as such the new Appeal Board was not properly constituted and
did not have jurisdiction to accept and decide the Band Council’s petition to
remove the Mayor from office;
3.
Given that the appointment of the new Appeal Board
was invalid, the decision to remove Mr. Reece as Mayor was quashed and the
appointment of the replacement Mayor was declared to be invalid; and
4.
The application, which sought several other
declarations, was otherwise dismissed.
[3]
The appellants appeal from the Judgment, and the
respondents cross-appeal from paragraph 4 of the Judgment, seeking that it be
amended to add a declaration that the petition that purportedly authorized or was
submitted by the Band Council to remove the Mayor from office did not conform
to Part 6 of the Band’s Election Regulations.
[4]
For the reasons set out below, I would grant the
appeal in part, but only to slightly vary the Federal Court’s Judgment, and would
also grant the cross-appeal. In result, the decision of the application judge,
quashing the decision to remove Mr. Reece as Mayor and declaring the decision
invalid, remains unchanged.
I.
The Band Election Regulations
[5]
On January 26, 2011, the Order Amending the
Indian Bands Council Election Order (Lax Kw’alaams), SOR/2011-5 was
adopted. That Order had the effect of removing the Band from the election
process provided under the Indian Act, R.S.C. 1985, c. I-5 and facilitated
the adoption by the Band of a customary election code that is set out in the
Band’s Election Regulations.
[6]
Part 4 of the Election Regulations contains the
provisions applicable to the Band Council. Section 4 provides that the Council
consists of the Mayor and 12 Councillors. Section 7 of the Regulations provides
that “the Mayor of Lax Kw’alaams or a quorum of the
Council” is empowered to call a special meeting in respect of an “emergency or crisis that requires an immediate decision”.
Section 9 provides that the quorum for a Band Council meeting is five members
of Council. Section 12 states that meetings are called to order when a quorum
is present, and section 13 provides that the order of business at “each regular meeting” of the Band Council “shall be in accordance with Robert’s Rules of Order”.
Section 18 defines vacancies in the offices of Mayor or Councillor as follows:
18. The Mayor or councillor position may
become vacant if, while in office:
a. the Mayor or
councillor resigns in writing from office of his own accord;
b. the Mayor or
councillor has been unable to perform the functions of his office for more than
six months due to illness or other incapacity;
c. the Mayor or
councillor dies;
d. the Mayor or
councillor is removed from office in accordance with section 21;
[7]
Part 14 of the Regulations establishes an Appeal
Board of five members who are selected by the Band Council at least 100 days
before an election and who hold office for a four year term. Section 120 of the
Regulations states that Appeal Board members hold office until “the day the members of another board are selected”.
The Regulations do not contain any provision for the removal of Appeal Board
members before their terms expire.
[8]
The Appeal Board is charged with deciding
election appeals and ruling on petitions to remove the Mayor or a Councillor
from office. Section 122 of the Election Regulations provides that an Appeal
Board member who is “immediate family” of any “appellant or candidate, or who may be reasonably apprehended
to have a bias or conflict in connection with the appeal” shall excuse
him or herself from an appeal meeting.
[9]
Part 6 of the Election Regulations deals with
removal of the Mayor or Council members from office. Grounds for removal are
set out in section 21 and include a failure to uphold the Code of Conduct
guidelines. The procedure for removal is enshrined in sections 22 to 29 of the
Regulations. Sections 22 to 25 are central to this appeal and cross-appeal and
are therefore set out in their entirety. They provide:
22. Proceedings to declare a person
ineligible to continue to hold the office of Mayor or Councillor shall be
initiated by:
a. a Lax Kw’alaams
member who is at least 18 years of age submitting to the Complaints and Appeal
Board a petition on which shall appear:
i. the ground
pursuant to section 21(1) on which removal of a Mayor or Councillor is sought;
ii.
the evidence in support of the petition;
iii.
the signature of the petitioner;
iv. the signatures
of at least 25% of Lax Kw’alaams members who is at least 18 years of age in
support of the petition; and
v.
a non-refundable filing fee of $100.00.
b. a majority of
council members passing a Band Council Resolution and submitting a petition to
the Complaints and Appeal Board on which shall appear:
i. the ground
pursuant to section 21 (1) on which removal of the Mayor or Councillor is
sought;
ii.
the evidence in support of the resolution; and
iii. the
signatures of all council members who voted for the removal.
23. On receipt of a petition, the Complaints
and Appeal Board shall verify that the petition complies with section 21(1). If
the petition does not comply, the Complaints and Appeal Board shall so notify
the petitioner(s).
24. In a case where the petition complies
with section 21(1), the Complaints and Appeal Board shall:
a. determine that
the grounds put forth in the petition are not true and dismiss the petition; or
b. schedule a
review hearing, which shall take place within 20 days from the date on which
the petition was submitted to the board.
c. In a case where
the petition has been dismissed under subsection 24(a), the Complaints and
Appeal Board shall so inform the petitioner(s) in writing and provide a
rationale.
d. In a case where
the Complaints and Appeal Board schedules a hearing under subsection 24(b), the
board shall send a written notice of the hearing by registered mail to council,
the petitioner(s) and the council member who is the subject of the petition for
removal.
e. The written
notice described in section 24(d) shall set out:
i.
the nature of the hearing and all related particulars;
ii
the date, time and location of the hearing; and
iii a statement
that the petitioner(s), any member of council or the council who is the subject
of the petition for removal may, at the hearing, make a presentation to the
board, which may include the presentation of documents and testimony by
witnesses.
25. The Complaints and Appeal Board shall
conduct a hearing at the time and place set out in the notice provided under
section 24.
II.
The Federal Court’s Reasons
[10]
To put the Federal Court’s Reasons into context,
some background is required.
[11]
In July 2014, there were only three individuals
on the Band’s Appeal Board as one of the Board’s previous members had died and
another, who had resigned for health reasons, had not been replaced. Two of
them had been appointed by a Band Council Resolution in August 2011 for a term
from November 23, 2011 to November 23, 2015. The third was appointed to replace
an Appeal Board member who had resigned, and her term likewise ran until
November 23, 2015.
[12]
In July of 2014, one of the appellant Councillors,
Helen Johnson, received a complaint about the Mayor’s conduct in allegedly
having an extra-marital affair with an employee of the Band Council. Ms.
Johnson decided she would convene a special Band Council meeting to deal with
the allegation and had the Band secretary send an email notice to the Councillors
and the Mayor on July 22, 2014 for an emergency special Band Council meeting to
be held the next day. The Mayor was out of town on the 23rd and was
unable to attend the scheduled meeting.
[13]
Ms. Johnson determined that one of the three
Appeal Board members was in a conflict of interest situation as she was the
mother of the person with whom the Mayor was allegedly involved. Ms. Johnson
telephoned the other two Appeal Board members on July 22nd, but did
not succeed in reaching them and therefore decided they could not serve on the Appeal
Board to rule on a petition to remove the Mayor from office.
[14]
On July 23, 2014, the Band Council met and
passed three resolutions, the first, removing the three members of the Appeal
Board, the second, naming five new members to the Appeal Board, and the third, suspending
the Mayor. The new Appeal Board members attended the July 23, 2014 Band Council
meeting.
[15]
During the meeting, and in the absence of the
Mayor, the Councillors present discussed the evidence related to the Mayor’s
removal with the members of the newly-constituted Appeal Board. The Appeal
Board also spoke on the telephone with the complainant, the husband of the
woman with whom the Mayor was alleged to have been involved. The Appeal Board
met in-camera during a break in the Band Council meeting and appears to have
decided to remove the Mayor from office. Ms. Johnson wrote to the Mayor later
that day to advise him of his removal.
[16]
The Mayor replied, citing the procedural
irregularities that had occurred, and took the position that his removal was a
nullity. Thereafter, Ms. Johnson decided to call another emergency special Band
Council meeting for July 28, 2014. During the meeting, six of the eight Band
Councillors who were present voted in favor of withdrawing the earlier Band Council
Resolution naming the five new members of the Appeal Board, passed another Resolution
re-naming them and passed a third Resolution approving the submission of a
petition to the newly-constituted Appeal Board seeking to remove the Mayor from
office. It appears, though, that no formal petition was signed following the
passage of the third Resolution.
[17]
On August 1, 2014, the newly-constituted Appeal
Board met and discussed the issues with the Councillors who wished the Mayor to
be ousted, in his absence, and then met the Mayor to receive his version of
events. The Appeal Board had documents before it that it did not disclose to
the Mayor and also appears to have received advice from a lawyer who was representing
the Councillors who sought to have the Mayor removed.
[18]
On August 6, 2014, the Appeal Board decided to
remove the Mayor and wrote to him advising him of its decision.
[19]
In setting this decision aside, the application
judge concluded that the summary dismissal of the previous Appeal Board and the
appointment of the new Appeal Board were procedurally unfair and unreasonable
due to the short timeframe in which these measures were taken (at paragraph
73). More specifically, he held that it was incumbent upon the Councillors
present at the July 23, 2014 meeting to make every effort to contact the three
remaining Board members before dismissing them. He also concluded that the
third Board member, who was found to be in a conflict of interest situation,
should have been given the opportunity to respond to the allegation that she
was in a conflict of interest (at paragraph 54).
[20]
The application judge went on to consider the appointment
of the five new members to the Appeal Board and held that they had not been
unreasonably pre-selected and that there was no basis upon which to impugn
their integrity or impartiality (at paragraphs 55, 73). However, he held that
the meeting between the appellant Councillors and the new Appeal Board on July
23, 2014 to discuss the petition and the evidence required for it to succeed,
in the absence of Mayor Reece and without his knowledge, gave rise to a process
which “was not totally independent or free from bias”
(at paragraph 74).
[21]
The application judge also stated that the
Election Regulations should be construed flexibly so as to allow the Band
Council to replace members of the Appeal Board before the expiry of their terms
in appropriate circumstances (at paragraph 51).
[22]
The application judge additionally found that
the July 28th Band Council Resolutions had been properly adopted by
a quorum majority of five Council members, in accordance with sections 9 and
22(b) of the Election Regulations. Relying on section 22 of the Interpretation
Act, R.S.C. 1985, c. I-21 and on Robert’s Rules of Order, 9th ed.
(Reading, Mass.: Addison-Wesley, 1997), he concluded that where a quorum is
present, a decision made by the majority of members present is deemed to have
been made by the Band Council. He thus held that the phrase “majority of council members” employed in section
22(b) of the Election Regulations means a quorum majority (at paragraphs
58-60).
[23]
The application judge further concluded that the
failure to submit a petition in support of the July 28, 2014 Band Council Resolution
authorizing the presentation of a petition was not fatal to the removal
procedure initiated against the Mayor because the Resolution contained the
grounds on which removal was sought, the evidence in support of the allegations
and the signatures of all Band Councillors (at paragraph 57).
III.
Issues
[24]
The appellants submit that the application judge
erred in holding that the dismissal of the previous Appeal Board was unreasonable,
contrary to the Election Regulations and invalid because:
- The decision is inconsistent with his finding that
the Election Regulations permit the appointment of new Appeal Board
members during the four year term;
- The procedural errors related to the removal of the
previous Appeal Board members affected only them and thus could not be
raised by the Mayor or provide a basis for setting aside the decision to
remove him from office;
- There was no evidence that two of the previous
Appeal Board members were willing to serve and thus the application judge
erred in finding their removal to be unreasonable; and
- The conflict of interest on the part of the third previous
Appeal Board member, who was the mother of the individual who was
allegedly involved with the Mayor, was obvious, and the judge therefore
ought not have found her removal to have been unreasonable.
[25]
The appellants also assert that the application judge
erred in premising his decision on the alleged unfairness to the Mayor of the
July 23, 2014 decisions and instead should have focussed on what occurred on
July 28, 2014, when the Mayor was present. They also say that the application
judge applied the wrong test for bias and instead of assessing whether the
process “was not totally independent or free from bias”
he ought to have asked whether there was a reasonable apprehension of bias
arising from the actions of the Appeal Board.
[26]
In terms of the cross-appeal, the respondents submit
that the application judge erred in his interpretation of the Election
Regulations because section 22(b) of the Regulations, as properly or reasonably
construed, requires that a majority of Band Council members (as opposed to a
mere quorum majority) approve a Band Council Resolution to remove the Mayor and
also requires that the majority sign a petition in favour of removal
before the issue of removal can be put to the Appeal Board. The respondents
also say that the application judge erred in finding the Band Council
Resolution of July 28, 2014 met the requirements of the petition required under
section 22(b) of the Election Regulations.
IV.
Analysis
[27]
In assessing the Federal Court’s Judgment
granting the respondents’ application for judicial review, this Court is
required to step into the shoes of the Federal Court and determine whether it
selected the appropriate standard of review and whether it applied that
standard correctly: Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45-47.
[28]
Here, the application judge correctly held that
the standard of review applicable to the decisions of the Band Council
interpreting the Election Regulations is reasonableness. In Orr v. Fort
McKay First Nation, 2012 FCA 269, [2012] F.C.J. No. 1353 (QL) at paragraph 11
[Orr], this Court determined that the case law of the Supreme Court of
Canada subsequent to its decision in Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R.
190 requires the application of the reasonableness standard to decisions of
band councils interpreting their customary election codes. However, as Justice
Stratas noted in Orr at paragraph 12, there is little appreciable
difference between the reasonableness and correctness standard of review in a
case such as this; if a “Council’s decision … cannot be
supported by the words of the Election Code or any other source of
power, the decision cannot be said to be acceptable or defensible on the law”,
and thus cannot be reasonable.
[29]
In applying the reasonableness standard as
so-defined to the Band Council’s implicit interpretation of the Election
Regulations made in this case, I would find such interpretation unreasonable
but for different reasons than those of the application judge.
[30]
Unlike the application judge, I do not see any
basis for implying into the Election Regulations a provision that permits the
removal of the three previous Appeal Board members in this case, even if they
had been given ample notice and an opportunity to speak to the Band Council
prior to their removal.
[31]
The provisions in Part 14 of the Election
Regulations, providing for Appeal Board appointments well in advance of
elections and for a four year term for appointees, indicate that the Appeal Board
is meant to be a stable body that, to the maximum extent possible, is shielded
from involvement in the disputes it might be called upon to decide. It is
consistent with this role that its appointees not be subject to removal by the
Band Council during the heat of a dispute where one side to the dispute picks
the members of a new Appeal Board. Thus, the absence of a provision in the
Election Regulations for removal of Appeal Board members must be seen as being
deliberate.
[32]
That said, where there are vacancies on the
Appeal Board and especially if it drops to below three members, the Election
Regulations must be interpreted as providing the Band Council authority to
appoint new members to the Appeal Board for the balance of the term as otherwise
the Board will not be able to continue to operate. In determining when a vacancy
occurs, the provisions in sections 18(a) to (c) of the Regulations, applicable
to vacancies on Council, provide guidance and a list of situations when the
Band Council could reasonably fill a spot on the Appeal Board.
[33]
It thus follows that I would find that the Band
Council’s decision to remove the three previous Appeal Board members was unreasonable
as the Election Regulations did not provide the Band Council with the authority
to remove the three Appeal Board members in this case. This is true even for
the member who was felt to have a conflict of interest. Under section 122 of the
Election Regulations, it was for her to decide whether she was in a position of
conflict and, if so, to decline to take part in the decision on the Mayor’s
removal. Thus, this issue was not one for the Band Council to decide.
[34]
As the decision to remove the previous Appeal Board
members underpins all that happened subsequently, it would follow that the new
Appeal Board’s decision to remove the Mayor from office should be quashed as the
Band Council had no authority under the Election Regulations to dismiss the
three members of the previous Appeal Board on July 23, 2014. The new Appeal
Board was therefore a nullity and had no authority to decide whether the Mayor
should have been removed from office.
[35]
The foregoing provides a sufficient basis for
the determination of this appeal, and it is unnecessary to address the other
issues raised by the appellants, many of which are academic in light of the
conclusion regarding the Band Council’s lack of authority to dismiss the three previous
Appeal Board members. In addition, the parties have urged us to issue this
Judgment promptly as the next election is scheduled for November 19, 2015,
which provides as additional reason for declining to address academic issues.
[36]
By way of guidance, however, I would note that
the following should be applied in any future process to remove a Mayor or
Councillor to ensure compliance with the requirements of procedural fairness:
•
The Mayor or Councillor must be given adequate
advance notice of the Band Council meeting where the Council debates whether to
institute the removal process. Such notice should include a summary of the
grounds alleged (this includes a summary of the relevant facts) as well as
disclosure of all relevant evidence in support of the request for a petition;
•
The Mayor or Councillor should be afforded the
opportunity to address the Council before it votes on whether to authorize a
petition;
•
If the Band Council hears from those who are in
favour of removal, the Mayor or Councillor should be present;
•
The Appeal Board must provide the Mayor or
Councillor with adequate advance notice of the meeting to consider the
petition, must disclose to the Mayor or Councillor all evidence it considers, must
provide them with an adequate opportunity to review the evidence and respond and
would be well-advised to not meet with the other side of the dispute in the
absence of the Mayor or Councillor;
•
The Appeal Board and the Band Council should operate
independently from each other and should hold separate meetings;
•
The Appeal Board ought not consult with counsel
for the Band Councillors who wish to remove the Mayor or another Councillor;
and
•
If the Appeal Board requires legal advice, it
should retain independent counsel.
[37]
Turning to the cross-appeal, I disagree with the
application judge that a reasonable interpretation of the requirements of
section 22 of the Election Regulations would allow for what occurred in this
case, namely, the mere adoption of a Resolution by a simple quorum majority at
a hastily-called Band Council meeting to institute the removal process. Such
interpretation contradicts the plain wording of section 22 of the Election
Regulations, which requires that the Resolution to seek to remove a Mayor from
office must be adopted by a majority of Band Councillors (and not merely the
majority present at a meeting) and also requires that the majority sign a
petition, containing the grounds upon which removal is sought, the evidence in
support of the removal and the signatures of the majority of Band Councillors
who support the petition.
[38]
In interpreting the majority requirement in
section 22 of the Election Regulations, the application judge erred in his
reliance on Robert’s Rules of Order and the Interpretation Act to
support the conclusion that the term “majority” meant only the majority of
Councillors present at a Band Council meeting where there is a quorum.
[39]
By virtue of section 13 of the Election
Regulations, Robert’s Rules of Order apply only to the order of business
at regular meetings of the Band Council and thus are inapplicable to
special meetings held to consider removal of the Mayor.
[40]
As for the Interpretation Act, it is
doubtful that it applies to the Election Regulations, which, strictly speaking,
are not federal regulations. Moreover, even if the Interpretation Act
were applicable, it would not lead to the conclusion that the term “majority”,
as used in section 22 of the Election Regulations, means a quorum majority. The
application judge relied on paragraph 22(2)(b) of the Interpretation Act
in support of his interpretation, which provides that:
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an act or thing
done by a majority of the members of the association present at a meeting, if
the members present constitute a quorum, is deemed to have been done by the
association;
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tout acte
accompli par la majorité des membres de l’organisme présents à une réunion,
pourvu que le quorum soit atteint, vaut acte de l’organisme;
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[41]
This provision defines what constitutes a
decision (or “act or thing”) of an association, which
in this case was the Band Council. Yet section 22 of the Election Regulations does
not require the decision of the Band Council to initiate the removal process,
but, rather, support of a majority of Band Councillors. This means at least seven
Councillors, which is greater than a quorum majority at a Band Council meeting.
By virtue of section 9 of the Election Regulations, a quorum majority could be
as few as three Band Councillors. It is unreasonable to construe the Election
Regulations as authorizing so few Councillors to initiate the removal of the
Mayor, when so doing contradicts the plain wording of section 22 of the
Election Regulations and could lead to significant instability in the
governance of the Band. Thus, the term “majority” as used in section 22 of the
Election Regulations must be interpreted to mean a majority of Band
Councillors.
[42]
Similarly, the clear wording of section 22 of
the Election Regulations requires both a Band Council Resolution and a petition
to institute the removal process, and there is no ambiguity in this requirement.
[43]
Moreover, the July 28, 2014 Band Council Resolution
could not reasonably be found to constitute a petition because, contrary to
what the application judge found, it did not set out the evidence against the
Mayor.
[44]
Thus, I would grant the appeal in part, grant
the cross-appeal and modify the Federal Court Judgment to read as follows:
THIS
COURT’S JUDGMENT is that:
1.
The dismissal of the previous Appeal Board was
unreasonable, contrary to the Election Regulations and invalid;
2.
The Band Council therefore had no authority to
appoint the New Appeal Board;
3.
Given that the appointment of the New Appeal
Board was invalid, the decision to remove Garry Reece as Mayor is quashed and
the appointment of John Helin as Mayor is invalid. Garry Reece remains Mayor;
4.
The Band Council Resolution of July 28, 2014 seeking
the removal of the Mayor did not conform to section 22 of the Election
Regulations and is invalid; and
5.
The application is otherwise dismissed.
[45]
Given the success of the respondents on this
appeal and cross-appeal, I would award them their costs of the appeal, the
cross-appeal and before the Federal Court, calculated at the mid-point of
Column III of Tariff B to the Federal Courts Rules, SOR/98-106.
"Mary J.L. Gleason"
“I agree
Johanne Gauthier J.A.”
“I agree
Wyman W. Webb J.A.”
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