Beardy v. Beardy

Beardy v. Beardy
Court (s) Database
Federal Court Decisions
Date
2016-04-07
Neutral citation
2016 FC 383
File numbers
T-1965-15
Decision Content
Date: 20160407
Docket: T-1965-15
Citation: 2016 FC 383
Ottawa, Ontario, April 7, 2016
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
GORDON BEARDY, FRANCINE MCKENZIE, JOY BARKMAN
Applicants
and
STAN BEARDY, ROY FIDDLER, CHARLIE L. BEARDY, JOHN L. MORRIS, OLIVIA DUNCAN, LISA BEARDY (AKA LIZA BEARDY), ERNIE HARPER, CLIFF FERRIS, JOB FIDDLER, KATHLEEN BEARDY, IRENE ROSS, AND MARY ANN BEARDY
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of the process leading up to, and the September 15, 2015 election of, the Chief and Band Council of the Muskrat Dam First Nation (“MDFN” or “Band”) culminating in a Band Council Resolution (“BCR”), dated September 16, 2015, declaring Stan Beardy as Chief, Roy Fiddler as Deputy Chief, and Charlie L. Beardy, John L. Morris, and Olivia Duncan as Councillors. The application is brought pursuant to ss 18(1) and 18.1 of the Federal Courts Act, RSC 1985, c F-7 (“Federal Courts Act”). The Applicants are Gordon Beardy, the immediate former Chief of MDFN, and Francine McKenzie and Joy Barkman, MDFN Band members who each filed an appeal of the impugned election.
Background [2] The MDFN is a remote Oji-Cree First Nation community located north of Sioux Lookout, Ontario. It has an on and off reserve population of approximately 430 to 600 members. The MDFN received Indian Band status in 1976 and in 2005 adopted the Muskrat Dam First Nation Customary Election Code (“2005 Code”). As this met the criteria of the Conversion to Community Election System Policy of the Department of Indian and Northern Affairs (“INAC”), the order previously issued pursuant to s 74 of the Indian Act, RSC, 1985, c I-5 (“Indian Act”) was repealed, thereby permitting the MDFN to conduct its elections in accordance with its own customary election system, as codified in the 2005 Code.
[3] Gordon Beardy was elected Chief of the MDFN in 2009. Most recently he was elected in 2013.
[4] On June 11, 2015 a community meeting was held to voice various concerns, including concerns about Band leadership. Seventeen community members were in attendance as well as three Band Councillors. At the meeting community members questioned whether an amended election code, dated July 18, 2012 (“2012 Code”), had ever been adopted by BCR. They also mandated Band Council to call a general meeting within two weeks to address all of the issues that had been raised at the community meeting and to begin working on a new election or leadership review. The three attending Councillors, Lewis Morris, Morris Fiddler and Olivia Duncan, were instructed to relay the expressed concerns and expectations of the community members to Chief Gordon Beardy and Deputy Chief Douglas Beardy.
[5] Band Council did not convene the requested general meeting. However, notice of a community meeting, said to be called by the Elders and concerned community members, was posted with its stated purpose being “to begin addressing concerns regarding Our Band Leadership”. The meeting was held on August 14, 2015 and was attended by approximately thirty community members. No members of Band Council attended. The minutes of the meeting indicate that the group decided not to undertake a leadership review, which would take too long, but to instead have a referendum. Twenty six people voted in favour of the referendum and to “empower” an election committee to begin the referendum, which was to be held three days later, on August 17, 2015. An Election Committee comprised of Job Fiddler, Kathleen Beardy, Irene Ross, Johnny Morris Senior and Jake Beardy was appointed.
[6] By email of August 14, 2015, Chief Gordon Beardy, who was in Thunder Bay at that time, was advised of the community meeting and that a referendum was to be held. He replied by email of the same date stating that it would serve as his resignation.
[7] The referendum was not held on August 17, 2015.
[8] On that date Morris Fiddler submitted his written resignation as a MDFN Band Councillor, effective immediately. On August 24, 2015, Deputy Chief Douglas Beardy advised by letter that he would remain as Deputy Chief to the day before the “Bi-election for the Band Council positions”. On August 31, 2015 he advised that he would not be seeking re-election to any Council position.
[9] On August 28, 2015 the Election Committee posted notice on Facebook that it would be starting the bi-election process on September 1, 2015.
[10] Despite the above described resignations, on September 1, 2015 four members of the then Band Council including, Chief Gordon Beardy, issued BCR150901A. This stated that the vote held at the August 14, 2015 community meeting did not meet the requirements of the 2012 Code as 50% plus one of the total eligible voters were required to support a referendum. It further stated that Chief and Council did not support the referendum process and “do not wish to submit their resignations at this time” and resolved to finish their terms, which they viewed as being of a three year duration concluding in July 2016, pursuant to the 2012 Code.
[11] In response to BCR150901A, on September 2, 2015, the Election Committee, now comprised of Lisa Beardy, Ernie Harper, Cliff Ferris as well as Jake Beardy and John Morris, posted a public notice stating that the BCR was “inconsistent” and that it had been effected without consultation with the Election Committee and the MDFN membership. The notice cites ss 5.1-5.5 of the 2012 Code, and states that the Election Committee had accepted the meeting minutes of the August 14, 2015 meeting as a petition and that due to the seriousness of the issues raised it concluded that there was a need for a referendum.
[12] Between September 2 and 8, 2015 the Election Committee met on various occasions and on September 4 and 8, 2015 it held radio broadcasts in which the events to date were discussed. Following the latter broadcast, Gordon Beardy spoke to the Election Committee outside the radio station and indicated that he did not support their actions.
[13] On September 10, 2015 the Election Committee ran a referendum asking for a “yes” or “no” response from each voter as to whether they wanted each of the separately named Band Council members to stay on in their stated Council positions. The results of the referendum were not publicly posted but there is some evidence that they were announced. The Election Committee meeting minutes indicate that all positions fell short of the required 50% plus one of eligible voters needed to call an election, however, the affidavit of John Morris states that the criteria was met. The Election Committee announced that nominations for the election would be held on the following day.
[14] On September 11, 2015 the Election Committee held a nomination meeting. The results of the nominations are not stated in the Election Committee minutes of the meeting nor is it clear that they were ever publicly posted. Gordon Beardy received thirty-two nominations for Chief and Stan Beardy received forty-six nominations.
[15] At the end of that meeting the fourteen people then in attendance were asked to vote on the question of whether those candidates who had previously resigned from Band Council should be permitted to run in the upcoming election. Twelve of these people voted that such candidates should not be permitted to run for re-election. Based on this, the Election Committee did not put forward Gordon Beardy’s nomination for Chief and, as the only remaining candidate, Stan Beardy assumed that position by acclamation on September 14, 2015.
[16] On that same day, Joy Barkman called the Election Committee and voiced her concern about the election process and that Gordon Beardy was not allowed to stand for election. She was told that she shouldn’t question the process in the midst of an election and was encouraged to file an appeal.
[17] The election was scheduled for September 14, 2015 and notice of the election was posted in the community and on Facebook. The election was subsequently scheduled to take place September 15, 2015 rather than September 14, 2015. The election proceeded on that date and the names of the successful candidates were posted by the Elections Committee on Facebook.
[18] On September 16, 2015 the newly elected Band Council issued BCR150916A which indicates the names of the individuals who were nominated and accepted their nominations to Band Council; that Gordon Beardy, Doug Beardy, and Morris Fiddler were disallowed from running due to their resignations; and, resolves that the Chief (by acclamation), Deputy Chief and Councillors were duly elected pursuant to MDFN election practices and were officially recognized as such.
[19] On September 23, 2015 Francine McKenzie submitted a written appeal of the election results citing several procedural irregularities based on the 2012 Code, including that two nominated candidates had been removed from the process.
[20] On September 29, 2015 Joy Barkman wrote to the Election Committee advising that her letter comprised official notice of her appeal of the September 15, 2015 election. She asserted that the Election Committee had failed to conduct themselves in accordance with the Election Committee Code of Ethics, an addendum to the 2012 Code, which she believed to be in effect, and noted that she had previously voiced her concerns about the rejection of Gordon Beardy’s nomination for re-election.
[21] Neither of these Applicants received a response from the Election Committee.
[22] Gordon Beardy did not file an appeal. However, through Anthony Carfagnini, who had acted as counsel to the Band prior to the 2015 election, he instructed that a series of communications be sent to financial institutions utilized by the Band suggesting that the election results were in dispute and that the institutions should only communicate with and take instructions from the members of the prior Band Council. These communications are detailed in the various affidavits filed in support of this application and the cross-examinations on those affidavits. For the purposes of this application it is sufficient to say that, faced with conflicting information as to the validity of the election and the authority of Band Council members to instruct them, as well as suggestions of inappropriate diverting of funds, the financial institutions caused the Band’s bank accounts to be frozen. This caused serious disruption not only to the Band’s financial affairs at large but also to the day-to-day banking of its members, including being precluded from cashing Ontario Works cheques which were returned as non-sufficient funds.
[23] Ultimately, on December 31, 2015 this Court ordered that the Applicants’ counsel write to the banks instructing that the Band’s accounts be unfrozen, that all normal course of business transactions be permitted, with the exception of payroll payments to the current Band Council members, and that the banks deal exclusively with the new Band Council pending further order of this Court.
[24] Subsequently, the Respondents sought an urgent case management meeting and requested that the application for judicial review be heard on an urgent basis because of ongoing financial implications. By Order of February 25, 2016 this matter was accordingly set down to be heard on March 15 and 16, 2016.
Decision Under Review [25] At the heart of this matter is the Election Committee’s decision to disallow Gordon Beardy from running in the September 15, 2015 election. Also at issue are other decisions and actions of the Election Committee which the Applicants assert resulted in the election not having been conducted in compliance with the 2012 Code, which they believe to apply. These decisions and actions all culminate in BCR150916A which resolves that the new Band Council of Chief Stan Beardy (by acclamation), Deputy Chief Roy Fiddler and Councillors Charlie L. Beardy, John Morris and Olivia Duncan were duly elected pursuant to MDFN election practices and are officially recognized and endorsed as such. BCR150916A is signed by a quorum of the newly elected Council.
Issues [26] The Applicants submit that three issues arise:
1) Was the Election Committee acting as a federal board, commission, or tribunal when it made the series of decisions which led to BCR150916A, if so what is the standard of review?
2) Did the Election Committee have jurisdiction to disallow Gordon Beardy to stand as a candidate?
3) Did the Election Committee owe Gordon Beardy a duty of procedural fairness when they did not allow him to run? Did they discharge that duty?
[27] The Respondents submit eight issues:
1) Was the draft 2012 Code ever ratified and adopted to amend the 2005 Code?
2) Should the Court exercise jurisdiction where the Applicant, Gordon Beardy, did not exhaust his internal recourse?
3) Did Joy Barkman and Francine McKenzie have standing to file appeals to the Election Committee?
4) If the answer to questions 2 and/or 3 is yes, then:
5) Is the appropriate standard of review of the Election Committee’s decision to disqualify Gordon Beardy’s candidacy that of patent unreasonableness?
6) Was the Election Committee’s decision to disqualify Gordon Beardy consistent with the 2005 Code as supplemented by customary practice?
7) Was the Election Committee’s decision to disqualify Gordon Beardy done in a manner consistent with procedural fairness?
8) Did any technical non-compliance with the Code materially affect the election results?
9) What is the appropriate relief?
[28] In my view, the issues are as follows:
1) Does this Court have jurisdiction to hear this matter and, if so, should it exercise that jurisdiction and what is the standard of review?
2) Which of the 2005 or 2012 Codes were in effect?
3) Were the actions and decisions of the Election Committee consistent with the applicable Code and customary practice?
4) Was there a breach of procedural fairness which would affect the election results?
5) What are the appropriate remedies?
Customary Election Code [29] As a preliminary point, it must be noted that there are varying versions of the 2005 Code contained in the record. The version found as Exhibit A of Roy Fiddler’s affidavit contained in the Respondents’ Record bears an Indian Affairs “received” stamp dated September 14, 2005. However, it differs from the version of the 2005 Code found as Exhibit B of Anthony Carfagnini’s affidavit found in the Applicants’ Record. For example, in the Respondents’ version the section dealing with Removal of Leaders in Office contains five sections while the Applicants’ version contains only the first three. The Applicants’ version includes copies of Addendums 5 and 6 which are not included with the version found in the Respondents’ Record. The evidence does not permit me to reconcile these versions. For the purposes of these reasons I will be referring to the version found in the Respondents’ Record.
[30] The most relevant sections of the 2005 Code are set out below:
Guiding Principles
Guiding principles for the community elections are initiated through a process of prayer facilitated by community elders with the participation of the designated community elections committee.
This initial process is then followed by comments from the participating elders in reference to the election process.
The completion of comments is followed by closing prayer voiced by one of the local community elders.
Part 1 - Policy Statements
…
Eligible Voters
2. Registered band members residing both on-reserve and off reserve are eligible to vote in the Muskrat Dam First Nation Election.
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Eligible Candidates
1. All eligible voters will be eligible to be nominated and stand as candidates for the Muskrat Dam First Nation Election.
2. The Nomination Procedure for Muskrat Dam First Nation is described in Part 2, Section 1 of this code.
3. The appointed Electoral Officer and Assistance Electoral Officer will not be eligible to run for office, unless they resign from the Elections Committee.
4. All eligible voters will be involved in determining who is eligible to run for office through the Nomination Process as identified in part 2, section 1 of this code.
Leadership Selection
1. Elected leaders are expected to carry out the duties of their positions honestly and with respect and honor.
2. A vacant position on council may be filled by appointment if the remaining term of Office is short or can be left open.
3. If the remaining term of office is longer than 90 days, a vacant position on the Council will be filled by a By-election process.
4. The Chief and Council in Office at the time of the vacancy and the elections committee and elders will provide direction on how to handle the elected position vacancy.
Term of Office
1. The term of Office will be (2) two years.
2. Elections will be held every two years in July until 2006 when the elections will be held in late October or before November 15th.
3. Elections will not be held during periods of misfortunes, such as death or a funeral in Muskrat Dam First Nation.
4. Except for situations outlined in 3, an election will be held on the same day and month every two years.
Removal of Leaders in Office
1. Elected member of Muskrat Dam First Nation is convicted of an indictable criminal offence which is contrary to the interests of the Muskrat Dam First Nation.
2. Elected member of the Muskrat Dam First nation is declared mentally incompetent by medical declaration
3. Elected member of the Muskrat Dam First Nation may be asked to resign due to immediate family crisis or in the event of death.
4. Elected members of Muskrat Dam First Nation - Chief and Council may call for a referendum on their positions, then a community Referendum on the sitting Chief and Council will take place, if there is evidence of 50% + 1 recommendation calling for election on any Council member position then an Election will be held.
5. When 1/3 of the Eligible voters have signed a petition calling for a referendum, then the Elections Committee will conduct a Referendum and shall canvass all eligible Voters. If there is evidence from the Referendum 50% + 1 of Voters calling for an Election on any Council member position, then there will be an Election for the Council position.
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Appeals
1. Any elector who voted in the election can file an appeal within 14 days of the election for the following reasons:
a) There was a violation of the election provisions that may have affected the election results.
b) The appeal procedure is described in Part 2, section 4 of this code.
Approval
The Muskrat Dam First Nation Election Code will be approved by the majority of voters by Community process. The list of those voters approving the Muskrat Dam First Nation Election Code is provided in Addendum Five.
The Muskrat Dam First Nation Election Code will be amended as a resulted of agreement by the majority of voters consulted in a Community process for the purpose of amending the Muskrat Dam First Nation Election Code. A copy of the amendment with the list of the Muskrat Dam Election Code will be kept on file in the First Nation Administration Offices. The amendment procedure is described in Part 2, section 5 of this code.
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Part 2 - Procedures for Elections
Section 1, Nomination Procedure
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Section 2, Polling Procedure
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Section 3, Voting Procedure
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Section 4
Appeal Procedure
1. An appeal of an election must be voiced orally and submitted in writing within fourteen days of that election. The appeal must provide the reason for the appeal.
2. Election issues can be appealed to the Election Committee.
3. Appeals will be resolved at the local level and can utilize the Election Committee and Elders.
4. The Federal Court of Canada will not be used as an appeal mechanism.
5. Appeals will be resolved according to the traditional customs.
6. The appeal will be addressed by the Election Committee and Elders or other designated body with five days in receipt.
7. The decision of the Election Committee or other designated Appeal Body will be final and binding.
Section 5
Amendment Procedure
1. Proposed changes to this Muskrat Dam First Nation Election Code must be drafted by the purposes and submitted to the Chief and Council.
2. The proposed amendment will be reviewed by the Chief and Council and a copy of such will be distributed to each eligible voter for his/her consideration.
3. Any proposed amendment to the Code will be discussed at a Community Consultation Process called for this purpose.
4. The majority of the Electorate through the Community Consultation Process must agree with the purposed [sic] amendment before it is passed by the Chief and Council.
5. Any amendment of the Muskrat Dam First Nation Election Code that is passed at [sic] through the Community Consultation process will be distributed to the electorate.
Addendums
Addendum One: Chief
Addendum Two: Deputy Chief
Addendum Three: Councillor
Addendum Four: Oath of Office
Addendum Five: Approval List
Addendum Six: Job Description for the Electoral Officer & Assistant Electoral Officer
Remedies Sought [31] In their Notice of Motion the Applicants’ recite twenty three remedies sought, however, in their written submissions these were condensed to an order that: the 2015 bi-election be quashed; a writ in the nature of quo warranto be given and a declaration that the Chief and Council elected on September 15, 2015 never properly held office; a writ in the nature of mandamus directing that the Respondent members of the Election Committee hold an election pursuant to the 2005 Code as soon as practicable; and, that this Court retain jurisdiction until the results of the new election are accepted by the Department of Indigenous and Northern Affairs and the appeal period and all resultant appeals have been dealt with.
Preliminary Comment [32] I would note that this matter was heard and decided on an urgent basis. In support of and in response to the application the parties each filed multiple affidavits, many of which were lengthy and attached many exhibits, as well as transcripts of cross-examinations conducted with respect to many of those affidavits. I have read and considered all of the evidence and the submissions. However, given the desire of the parties to have this matter resolved as quickly as possible, I have kept my reasons as brief as possible and have not specifically referred to each document before me.
Issue 1: Does this Court have jurisdiction to hear this matter and what is the standard of review? Applicants’ Submissions [33] The Applicants submit that this Court has jurisdiction to review BCR150916A as MDFN is acting as a federal board, commission, or tribunal as contemplated by s 2 of the Federal Courts Act. Further, that jurisdiction over custom elections is well-established (Sparvier v Cowessess Indian Band No 73, 1993 CarswellNat 1319 at paras 11-15 [Sparvier]). As the Court is interpreting the content of the Band custom as well as the provisions of the 2005 or 2012 Codes, it is therefore interpreting the law, and the standard of review for jurisdiction and statutory interpretation is correctness (Joseph v Yekooche First Nation, 2012 FC 1153 at para 25 [Joseph]). Little to no deference should be shown to the Electoral Officer or Election Committee, as their power came from a meeting of the membership and they have no expertise. Nor was the Election Committee created in accordance with the 2012 Code.
Respondents’ Submissions [34] The Respondents submit that the Court ought to decline to exercise its jurisdiction in this matter as Gordon Beardy failed to exhaust the recourse available to him in the subject administrative process which, absent exceptional circumstances, aggrieved parties are required to do before coming to Court (C.B. Powell Ltd v Canada Border Services Agency, 2010 FCA 61 at paras 30-33 [C.B. Powell]; Sagkeeng First Nation v Canada, 2015 FC 1113 at paras 69-71 [Sagkeeng]; Taypotat v Taypotat., 2012 FC 1036 [Taypotat]). The 2005 Code contained a mechanism for appeal to the Election Committee which provided Gordon Beardy with an adequate alternative remedy. It is uncontested that he did not avail himself of the appeal procedure and he has not advanced any exceptional circumstances. Therefore, the Court ought to decline jurisdiction, particularly as the 2005 Code contains a privative clause.
[35] The Respondents also submit that in order to file an appeal under the 2005 Code, the aggrieved parties must have voted in the subject election. However, both Joy Barkman and Francine McKenzie confirmed under cross-examination that they consciously chose not to vote in the election. Accordingly, the Respondents submit that they lack standing to file an appeal. Further, that both Ms. Barkman and Ms. McKenzie filed their appeals pursuant to the 2012 Code, which was not in force. Both appeals were improperly constituted and cannot form the basis of remedial relief before this Court.
[36] The Respondents submit that the standard of review in this case is patent unreasonableness, which attracts a great degree of deference to the Election Committee’s decision to disqualify Gordon Beardy as an eligible candidate. The justifications for a high level of deference are: the presence of a full privative clause in the 2005 Code; the expertise of the Election Committee which was comprised of experienced members of past election committees who had specialized expertise with respect to the Band’s customary election practices as applied to the Code; the vague nature of the 2005 Code, which required the Election Committee to fill in gaps to achieve its primary purpose by using their experience and knowledge of MDFN’s customary practices; and, the Election Committee made only factual determinations regarding whether or not Gordon Beardy had resigned and what custom dictated in terms of assessing his eligibility. No legal interpretation of the 2005 Code was required because it does not address disqualification factors.
Analysis
i. Jurisdiction [37] As stated in Shotclose v Stoney First Nation, 2011 FC 750 [Shotclose] it is settled law that this Court has jurisdiction to review the decisions and actions of chiefs and band councils as they constitute a “federal board, commission, or tribunal” as contemplated by s 2 of the Federal Courts Act. Such decisions are also subject to the jurisdiction of the Court as set out in s 18.1 of the Federal Courts Act to hear applications for judicial review of the matter in respect of which relief is sought (Sparvier at para 13; Angus v Chipewyan Prairie First Nation Tribal Council, 2008 FC 932 at para 29; Vollant v Sioui, 2006 FC 487 at para 48; Gabriel v Canatonquin, [1978] 1 FC 124 at para 10, aff’d [1980] 2 FC 792 (FCA)).
[38] And, as stated in Ratt v Matchewan, 2010 FC 160 (at para 105-106), the jurisprudence of this Court has consistently upheld its supervisory powers over band elections (Francis v Mohawk Council of Kanasetake, [2003] 4 FC 1133 at paras 11 to 18 [Francis]; Ballantyne v Nasikapow, 197 FTR 184 at paras 5-6). Whether the selection process is carried out by election pursuant to the Indian Act, or pursuant to custom, this Court has supervisory jurisdiction over the process, and over those bodies, such as electoral officers, appeals boards or elders councils, purporting to exercise authority under the process.
[39] In this case, the decision not to permit Gordon Beardy to run for re-election was made by the Election Committee and the election process was effected by that Committee and the Electoral Officer. As discussed below, there is some question as to whether it was open to the Band members to constitute an Election Committee in these circumstances and whether the Election Committee had the authority to take the actions that it did. However, as the Election Committee purported to exercise authority pursuant to an election code that was effected pursuant to the provisions of the Indian Act, in my view, for the purposes of this judicial review, it falls within the definition of a “federal board, commission or other tribunal” over which this Court has jurisdiction (Sparvier at para 13).
[40] Further, as stated by Justice Tremblay-Lamer in Lafond v Muskeg Lake Cree Nation, 2008 FC 726 at para 20 [Lafond], in the context of a chief who purported to act alone, separate from band council, and on his own initiative in relation to band election matters, jurisdiction pursuant to s 18 “.. extends to those purporting to have authority to decide as well” (Roseau River Anishinabe First Nation v Roseau River Anishinabe First Nation (Council), [2003] FCJ No 251 at para 19; Sparvier at para 13). She concluded that this Court has jurisdiction to review removals of band council members from office “regardless of who purports to possess the authority to do so”. I see no reason why this same reasoning would not apply to the decisions of the Election Committee in this case (also see Salt River First Nation 195 (Council) v Salt River First Nation, 2003 FCA 385 at paras 18-20; Chief Pahtayken v Oakes, 2009 FC 134 at paras 31-32).
ii. Standard of Review [41] As stated in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], in determining the appropriate standard of review a court must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Only if this inquiry proves unfruitful, must the court proceed to an analysis of the factors making it possible to identify the proper standard of review (Dunsmuir at para 62).
[42] In this case, the issue of which of the election codes was in effect at the relevant time is, in my view, a question of mixed fact and law and, therefore, the reasonableness standard applies (Dunsmuir at para 53; Lewis v Gitxaala Nation, 2015 FC 204 at para 15).
[43] This Court has recognized that chiefs and band councils have expertise on matters such as band custom and factual determinations and, therefore, that their decisions should be shown considerable deference. Thus, band council decisions are to be reviewed on the standard of reasonableness and will be upheld if they fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Shotclose at paras 58-59; Parker v Okanagan Indian Band Council, 2010 FC 1218 at paras 38-40 [Parker]; Dunsmuir).
[44] In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47).
[45] Jurisprudence has also previously held that the issue of whether a band council breached a duty of procedural fairness is to be reviewed on a correctness standard (Prince v Sucker Creek First Nation, 2008 FC 1268 at para 23 [Sucker Creek]; Parker at para 41; Tsetta v Band Council of the Yellowknives Dene First Nation, 2014 FC 396 at para 24; Hill v Oneida Nation of the Thames Band Council, 2014 FC 796; Taypotat at para 42). In my view, this standard would be equally applicable to the actions of the Election Committee.
iii. Should the Court decline to exercise its jurisdiction? [46] Putting aside for the moment the question of whether the Election Committee was validly constituted and the alleged election irregularities, the fact remains that Joy Barkman and Francine McKenzie did not vote in the subject election but filed appeals. The Respondents submit that they therefore lack standing in this matter.
[47] Joy Barkman’s affidavit states that Olivia Duncan sent her photos of the tallies taken of the nominations made at the September 11, 2015 nomination meeting. These showed that Gordon Beardy received thirty-two nominations for Chief and Stan Beardy received forty-six nominations. Stan Beardy was announced as acclaimed Chief by radio on the evening of September 14, 2015. Joy Barkman called Ernie Harper and voiced her concerns about the process and, specifically, as to why Gordon Beardy was not permitted to stand for election. Ernie Harper put her on speaker phone, with what she assumed to be the rest of the Election Committee, although she spoke only with him and Mary Ann Beardy. Ernie Harper told her that she should not question the process in the midst of an election and confirmed that the Election Committee had not approached Gordon Beardy regarding his nomination. Ultimately, she was told that she could file an appeal.
[48] She states that she again expressed her concern to Ernie Harper on September 15, 2015. On September 28, 2015 she discussed her appeal with Lisa Beardy who told her that the appeal should be sent to Ernie Harper and that he would process it with her or Mary Ann Beardy. Lisa Beardy later indicated that she would forward the appeal to Steve Beardy, the Band Manager.
[49] The appeal was filed on September 29, 2015. Both the 2005 and 2012 Codes state that any elector who voted in an election can file an appeal within fourteen days of the election if there was a violation of the election provisions that may have affected the election results. Therefore, the appeal was filed within the required time frame. It takes issue with the August 14, 2015 community meeting, as the persons who voted at that time were not representative of the majority of the community pursuant to the 50% plus one requirement set out in both Codes. It also describes Ms. Barkman’s prior efforts to raise her concerns with the Election Committee and again at the announcement of the election results and swearing in.
[50] The appeal of Francine McKenzie dated September 23, 2015 was similarly submitted in accordance with the Code requirements and sets out alleged procedural irregularities, including that two candidate nominations had been removed from the election process.
[51] Of the members of the Election Committee, the affidavit of Ernie Harper, co-chair of the Election Committee does not in any way address the appeals. There is no affidavit of Lisa Beardy, the other co-chair. Nor do the affidavits of Jake Beardy, Clifford Ferris or John Morris mention the appeals.
[52] On cross-examination Ernie Harper stated that he had never heard about or seen an election appeal voiced or filed by Francine McKenzie and that he did not know who she was. As to Joy Barkman’s appeal, when it was put to him that the Election Committee had not responded to it he stated that he thought that time was a factor and that there were no other factors. On cross-examination Jake Beardy stated that the Election Committee did not meet after the election and that he was not aware of a phone call from Joy Barkman with the Election Committee.
[53] The affidavit of Mary Ann Beardy confirms that Joy Barkman called Ernie Harper after the radio broadcast and that she was put on speaker phone so that Mary Ann Beardy could participate in the call. She confirmed to Joy Barkman that, because Gordon Beardy had resigned, it was determined that he was ineligible for re-election but that Ms. Barkman did not accept that explanation. The affidavit makes no mention of the appeals filed.
[54] The Respondents submit that Joy Barkman and Francine McKenzie lacked standing to file an appeal because, in order to file an appeal under either of the Codes, the aggrieved parties must have voted in the subject election. Both Ms. Barkman and Ms. McKenzie confirmed under cross-examination that they consciously chose not to do so. Furthermore, both Ms. Barkman and Ms. McKenzie filed their appeals pursuant to the 2012 Code, which was not in force. The Respondents submit that, therefore, both appeals were improperly constituted and cannot form the basis of remedial relief before this Court.
[55] At the hearing before me counsel for the Respondents suggested that the reason why the Election Committee failed to respond to the appeals was because they could have determined from the voters list that Joy Barkman and Francine McKenzie had not voted and, therefore, were not entitled to appeal. There is, however, no evidence to support this submission. In fact, the evidence is to the contrary, being that the appeals were simply not addressed.
[56] In this situation both Joy Barkman and Francine McKenzie followed the appeal procedure set out in both the 2005 and 2012 Codes by filing their appeals with the Election Committee within fourteen days of the election. The Codes required the Election Committee and Elders or other designated body to respond to appeals within five days. Because the Election Committee did not respond to the appeals, it cannot be said that Ms. Barkman and Ms. McKenzie failed to exhaust their rights and remedies under the Codes before commencing this application for judicial review. Their circumstances are, therefore, distinguished from those in Sagkeeng where the First Nation did not request a dispute resolution mechanism that was available to them.
[57] It is true, as stated in C.B. Powell (at para 33), that concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, but this is so only as long as that process allows the issues to be raised and an effective remedy to be granted (see Harelkin v University of Regina, [1979] 2 SCR 561; Okwuobi v Lester B. Pearson School Board, 2005 SCC 16 at paras 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 55 D.L.R. (4th) 128 (Ont. Div. Ct.):
[31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
[58] In this case, the Election Committee did not follow the appeal requirements as set out in the Codes. It ignored and failed to respond to the appeals and, therefore, did not allow the issues to be raised at all. In these circumstances, as a result of the actions of the Election Committee, the process was not completed and no remedy was available. Put otherwise, because the Election Committee did not consider the appeals, the appeal mechanism offered by the Codes was not an adequate, alternative appeal mechanism to judicial review. Further, as the Codes required the Election Committee to respond within five days of receipt of the appeals, which it did not do, nor can the appeal process be said to be ongoing. While it may be that if the Election Committee had addressed the appeals it would have been open to it to dispose of them on the basis that Ms. Barkman and Ms. McKenzie had no right of appeal as they had failed to vote, the Election Committee did not consider the appeals and did not make that determination. Therefore, in my view, this does not provide a basis up