Taykwa Tagamou First Nation v. Linklater

Taykwa Tagamou First Nation v. Linklater
Court (s) Database
Federal Court Decisions
Date
2020-02-07
Neutral citation
2020 FC 220
File numbers
T-1687-18
Notes
A correction was made on April 15, 2020.
Decision Content
Date: 20200207
Docket: T-1687-18
Citation: 2020 FC 220
Ottawa, Ontario, February 7, 2020
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
TAYKWA TAGAMOU NATION
Applicant
and
IRENE LINKLATER
Respondent
JUDGMENT AND REASONS
[1] An election review panel (“Review Panel” or “Panel”), effected pursuant to section 19.2 of the Taykwa Tagamou Nation Custom Election Code (“TTN Custom Election Code” or “Code”), decided an appeal brought by Ms. Irene Linklater, the Respondent herein, of the Taykwa Tagamou Nation (“TTN”) Chief and Band Council election held on October 12, 2017 (“2017 Election”). The Review Panel concluded that the 2017 election process violated provisions of the TTN Custom Election Code and it ordered a new election. TTN, the Applicant before this Court, brings this application for judicial review of the Review Panel’s decision pursuant to s.18.1 of the Federal Courts Act, RSC 1985, c F-7.
Background
[2] The Applicant, TTN, is an Indian Band within the meaning of the Indian Act, RSC 1985, c I-5. TTN’s elections are governed by the TTN Custom Election Code, which was effected on March 12, 2011. On October 12, 2017, TTN held an election for the positions of Chief, Deputy Chief, Youth Councillor, and three Councillors.
[3] The Respondent, Irene Linklater, is a member of TTN. She unsuccessfully ran for the position of Chief in the 2017 Election. The majority of votes, being 73 of the 222 valid votes cast for the Chief’s position, were cast in support of candidate Daniel Bruce Archibald. The Respondent received 22 votes, placing fifth of the seven qualified candidates who ran for the Chief’s position.
[4] The Respondent commenced an appeal of the 2017 Election pursuant to s 19.2 of the TTN Election Custom Code. On appeal, she alleged 17 distinct violations of the Code. The newly elected Chief and Council responded to the appeal, relying on and adopting the facts and submissions of the Electoral Officer, Mr. Vaughn Johnston, being his post-election Final Election Report and a Briefing Note he prepared in response to the appeal. Chief and Council were of the view that the TTN Custom Election Code was followed in the 2017 Election.
[5] Pursuant to section 19.1 of the TTN Custom Election Code, an election review panel is to be comprised of three persons, two of whom are Aboriginal, one of whom is a lawyer, and none of whom are members of TTN. Section 19.3 of the Code sets out the procedure for the selection of the Review Panel, being that the candidate who appealed shall select one Aboriginal member, the electoral officer shall select the lawyer, and members of the newly elected (putative) Band Council shall select the remaining Aboriginal member of the panel. That selection process was followed in the appointing of the Review Panel. The Panel held a hearing on July 19, 2018 and released its written decision on August 21, 2018. This is the judicial review of that decision.
[6] The Chief and Council elected on October 12, 2017 continue to govern TTN.
Decision under review
[7] The Review Panel noted that the matter before it was an appeal of the 2017 Election, which had been conducted under the TTN Custom Election Code. Further, that the applicant therein, Ms. Linklater, alleged that there had been 17 violations of the Code in the 2017 Election and requested that a new election be held because of the severity of the violations. Conversely, the elected Chief and Council of TTN submitted that the 2017 Election was conducted diligently under the Electoral Officer’s direction, and relied on and adopted the facts and submissions in the Electoral Officer’s Final Election Report and Briefing Note. TTN Chief and Council sought to have the appeal dismissed.
[8] The Review Panel was of the view that the issues in the appeal could be stated as follows:
Does Ms. Linklater’s allegations of violations of the TTN Election Code have merit?
If the allegations have merit, were they minor procedural irregularities dealt with under the TTN Custom Election Code and by the Electoral Officer’s authority, discretion and ability?
Did the allegations have an impact or change the substance outcome of the 2017 Election?
Is it in the best interest of TTN to order a new election?
[9] In its analysis, the Review Panel individually addressed each allegation, TTN Chief and Council’s response to that allegation, set out the relevant Code provision, and then stated its finding.
[10] The Review Panel found 14 of the 17 allegations to be without merit. Because the Respondent did not seek judicial review of the Review Panel’s decision and because and the Applicant takes issue only with the remaining 3 findings that were found to have merit, it is not necessary in these reasons for me to address the other 14 allegations and the Review Panel’s findings pertaining to each of them. For the purposes of these reasons, it is sufficient to say that the allegations that were found to be without merit involved:
- An allegation that section 4.0 of the Code was violated because the Electoral Officer inappropriately delegated election duties to an employee of the Band, the Executive Director, Ms. Sandra Linklater, and that the Executive Director was in a conflict of interest;
- An allegation that section 6.1(d) of the Code was violated because Ms. Bertha Cheena, a candidate running for election in the position of Chief, was inappropriately disqualified;
- An allegation that section 9.2 of the Code was violated because the TTN annual general meeting (“AGM”) held on September 28, 2018 was not an all candidates meeting;
- An allegation that section 9.3 of the Code was violated because announcements concerning the election process were not made at the AGM;
- An allegation that section 9.4 of the Code was violated because the Electoral Officer was not present at the AGM;
- An allegation that section 10.1 of the Code was violated because it was uncertain if Mr. Michael Gauthier’s withdrawal of his candidacy as a councillor was done in conformity with that provision;
- An allegation that section 11.1 of the Code as violated because one ballot instead of four separate ballots were utilized;
- An allegation that section 11.2 of the Code was violated because Ms. Cheena’s name and that of another candidate who had withdrawn from the election were not blocked out on the ballots;
- An allegation that section 11.3 of the Code was violated as off-reserve Band members were not made aware that a candidate had withdrawn;
- An allegation that section 11.4 of the Code was violated because the address for mail-in ballots was incorrect;
- An allegation that section 11.6 of the Code was violated because the procedure for releasing mail in voting packages was not followed;
- An allegation that section 12.9 of the Code was violated because the procedure for candidates’ agents was not followed, in that Ms. Sandra Linklater was a scrutineer forand a candidate for a councillor position, Mr. Bruce Archibald, and because Mr. Archibald was present when the ballots were counted;
- An allegation that section 13.3 of the Code was violated because the Electoral Officer did not verify the ballots before they were placed in the ballot box; and
- An allegation that section 16.0 of the Code was violated because the posting of election results was not in conformity with that provision.
[11] This left 3 allegation of violations of the Code which the Review Panel found did have merit – that is, violations of sections 9.6, 12.2 and 12.6.
[12] The first of these allegations was that section 9.6 of the Code was violated because the election was held in a shorter timeframe than was required. That section states:
9.6 Elections will be held fifteen (15) days after the AGM. Candidates must cease campaigning 24 hours prior to the commencement of the election.
[13] The Review Panel found that the election was held fourteen, rather than fifteen, days after the AGM.
[14] Having made that finding, the Review Panel then considered whether this was a minor procedural irregularity dealt with under the TTN Custom Election Code and by the Electoral Officer’s authority, discretion and ability. The Review Panel noted the position of TTN Chief and Council, being that the election date is set in advance of the AGM and that the AGM is then set. The Panel also noted that the Code does not stipulate how many days the advance polls can be set in relation to the AGM, or the date of the election. The Review Panel noted that no information was provided as to why the AGM date was set only 14 days before the election, rather than the required 15 days, nor why advance polls were set only 12-13 days from the AGM rather than 15 days, or who set the dates. Accordingly, the Panel could not determine whether these were procedural errors in setting the dates or if there were other reasons determining the dates. It stated, however, that it assumed that the dates were set by the former TTN Chief and Council. The Review Panel found that section 9.6 of the TTN Custom Election Code clearly states the AGM is to be held 15 days before the election and that the 15 day time period is repeated in the Code’s Election Time Table. Further, that the Code contains no wording allowing the 15 day timeframe to be changed. Therefore, this error could not be dealt with under the Code. Similarly, the Code contained no provision by which the Electoral Officer could rectify an error concerning the setting of the AGM, election or advance polls dates. In the result, the Review Panel found that the allegation was not dealt with under the Code or the Electoral Officer’s authority, discretion and ability.
[15] The Review Panel then considered whether the violation of section 9.6, holding the election 14 rather than 15 days after the AGM, had an impact on or changed the substantive outcome of the 2017 Election. The Review Panel noted that no information was provided to the Panel indicating that candidates must attend and participate in the AGM. And, in that regard, the wording of section 9.2 is permissive, not mandatory. The Review Panel also noted that no information was provided to it indicating that all Band members attend the AGM to hear the candidates’ speeches or that the AGM is the only opportunity for Band Members to hear from the candidates. The Review Panel recognized that the AGM appeared to be an important opportunity for candidates in attendance to present their speeches, but found that the AGM was not the only opportunity for candidates to present, or for Band members to hear from the candidates. The Review Panel also noted that TTN members receive notice of the election, and which candidates are running, 45 days before the election as required by the Code. Therefore, the AGM is essentially an opportunity for members who attend to hear from candidates who participate and it is not the process by which members are advised about the election and what candidates are running. Given this, the Review Panel found that holding the AGM one day short of the required timeframe as set out in the Code did not have an impact or change the substantive outcome of the 2017 Election.
[16] The second allegation that the Review Panel found to have merit concerned section 12.2 of the Code. Ms. Linklater alleged that the Code states that two polling stations will be held, one in TTN and one in Moosonee. However, a third polling station was held in Cochrane in violation of the Code.
[17] The Review Panel noted the position of TTN Chief and Council, being that TTN advised the Electoral Officer that there would be a main poll on the day of the election and two advance polls, one in Moosonee and one in Cochrane. The Panel also noted Chief and Council’s position that, while the Code does state that there will be two polls, it could be interpreted such that there can be more than two polling stations. The Review Panel referenced section 12.2, which states:
12.2 There will be two (2) polling stations: One on the Taykwa Tagamou Nation Territory (Reserve #69B located in Brower Township) and one in Moosonee, Ontario. The preferred location for the polling station in Moosonee will be at the Friendship Center.
[18] The Panel found that section 12.2 clearly states that there will be two polling stations and does not include any wording that may be interpreted to permit additional polling stations.
[19] Having found that there was merit to the allegation that section 12.2 of the TTN Custom Election Code was violated, the Review Panel next considered whether this was a minor procedural irregularity. The Review Panel noted the position of TTN Chief and Council that it was TTN who advised the Electoral Officer that there would be three polls and stated that the Panel understood this to mean that it was the decision of TTN to have a poll the day of the election and two advance polls and that this was not the decision of the Electoral Officer. The Panel also noted that it was not provided with information as to why TTN made that decision and that Ms. Linklater advised that the 2017 Election was the first time TTN had advance polls and a poll at Cochrane. The Review Panel found that section 12.2 of the TTN Custom Election Code clearly states that there will be two polling stations, one on TTN and one in Moosonee, and that the Code does not include any wording stating that more than two polling stations or that advance polls can be held. This error, therefore, could not be dealt with under the Code. Further, it was TTN that made the decision to use three polls, and not the Electoral Officer, and the Code does not contain any provision or authority to permit the Electoral Officer to rectify an error concerning polling stations. Based on this, the Review Panel found that the allegation as to a violation of section 12.2 of the Code was not dealt with under the Election Code or the Electoral Officer’s authority, discretion and ability.
[20] Having reached that conclusion the Review Panel next asked itself if the violation of section 12.2 had an impact on or changed the substantive outcome of the 2017 Election. The majority of the Panel concluded that holding three polling stations, rather than two, had an impact or changed the substantive outcome of the election. The third Panel member disagreed.
[21] The third allegation that the Review Panel found to have merit was that section 12.6 of the TTN Custom Election Code was violated because advance polling stations were held in Moosonee and Cochrane. The Review Panel noted the position of TTN Chief and Council and that section 12.6 states:
12.6 On polling day, all polling stations are open at 8:00 a.m. (local time), and must remain open until 8:00 p.m. of the same day.
[22] The Panel found that the Code did not provide for advance polling stations to be held, and therefore, that there was merit to the allegation of a violation of section 12.6. As to whether this was a minor procedural irregularity, the position of TTN Chief and Council was that the poll held on October 12, 2017 – election day – was open from 8:00 am to 8:00 pm in accordance with the Code. Further, that the advance polls in Moosonee and Cochrane were held prior to October 12, 2017 and had to have been open 8:00 am to 8:00 pm if they were held on the same day as the polling day of October 12, 2017. The Review Panel noted that it was not provided with any information that the advance polls were not held between 8:00 am and 8:00 pm and it assumed that those polls adhered to that timeframe. However, the allegation was that the Code did not stipulate that advance polls could be held. The Review Panel noted that it had already addressed the issue of advance polls in the context of its section 12.2 findings and reached the same conclusion concerning the section 12.6 violation, being that it was also was not dealt with by the Code or by the Electoral Officer’s discretion, authority, and ability.
[23] The Panel then assessed whether the violation had an impact or changed the substantive outcome of the 2017 election. Again, the Panel was divided in its conclusions. The majority of the Panel concluded that holding advance polling stations had an impact or changed the substantive outcome of the election. The third Panel member disagreed.
[24] Finally, having found that the sections 12.2 and 12.6 violations had an impact or changed the substantive outcome of the 2017 Election, the Panel asked itself whether it was in the best interests of TTN to order a new election. Splitting along the same lines, two Panel members found that it was in the best interest of TTN to order a new election. The third Panel member disagreed.
[25] The majority of the Panel found that the 2017 Election was held in violation of the TTN Custom Election Code and ordered that a new election be conducted. The Panel member in the minority would have dismissed the appeal.
TTN Custom Election Code
[26] The introduction to the Code notes that the development of the written electoral code and procedures will help resolve the dilemma of unwritten customary governance practices. The written Code and procedures will serve as a guide and ensure that future misunderstandings can be resolved by referring to written policies. The introduction states that, as was evidenced from the most recent disputes over election matters, there can be many interpretations and variations of the unwritten electoral practices; therefore, having a comprehensive and written electoral code and procedures will result in clear resolution to electoral issues for TTN.
[27] Section 19 deals with the Election Review Panel:
19.1 An Election Review Panel shall be comprised of three Persons, at least two of whom are Aboriginal and one of whom is a lawyer, who are not members of TTN.
19.2 Within thirty (30) days after an election, a candidate may apply (the “Applicant”) to have an Election Review Panel created for the disposition of any matter that is alleged to be in violation of this Code.
19.3 The procedure for that selection of the Election Review Panel is as follows:
a) The candidate who has applied shall select one aboriginal member to the Election Review Panel.
b) The Electoral Officer shall select the lawyer to be appointed to the Election Review Panel.
c) The members of the newly elected (putative) Band Council shall select one aboriginal member to the Election Review Panel.
d) All candidates shall be advised in writing that an application for review has been filed.
19.4 Once an application is submitted to the Electoral Officer, the Election Review Panel shall complete its review within 30 days of receiving a written notice of appeal. It shall give its decision to the applicant and the Electoral Officer and will provide written reasons upon request. The Election Review Panel will allow the Electoral Officer, the newly elected Council, and the Applicant the opportunity to provide written representations. Written representations must be provided 15 days after the notice of appeal is commenced.
19.5 An Election Review Panel shall from time to time determine its own procedures.
19.6 An Election Review Panel has the exclusive jurisdiction to review any matter under this by-law.
19.7 The Election Review Panel may award costs where it appears that the Application was frivolous and without merit. Such costs, if awarded, will be payable to Taykwa Tagamou Nation unless the Panel orders otherwise.
19.8 An appeal of a decision of the Election Review Panel lies by way of application for judicial review to the Federal Court of Canada.
Issues
[28] The Applicant submits that the substantive issue before this Court is whether the Review Panel’s decision to order a new election was reasonable based on the evidence before it.
[29] The Respondent submits that the Panel’s written decision is unclear, however, the Panel was procedurally and substantively fair to the Applicant and deserves a wide degree of deference to interpret and comprehend matters of which local judicial notice can be taken.
[30] In my view, there is one issue arising in this judicial review, being whether the Panel’s decision was reasonable.
Standard of review
[31] Subsequent to the parties filing their written submissions, the Supreme Court of Canada issued its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”), which revisited the standard of review applicable to administrative decisions. As Vavilov is relevant to the both the applicable standard of review and to the issue of deference raised by the Respondent, I invited counsel, when appearing before me, to address the decision.
Standard of Review - merits
[32] In their written submissions the parties agreed that the Review Panel’s decision on the merits attracted the standard of review of reasonableness as it involves questions of mixed fact and law (Lavallee v Ferguson, 2016 FCA 11 at para 19; Pastion v Dene Tha’ First Nation, 2018 FC 648 at paras 21, 29 (“Pastion”); Lewis v Gitxaala Nation, 2015 FC 204 at paras 13-15; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51, 53). They also agreed that Indigenous decision makers are entitled to deference when interpreting and applying custom election codes (Pastion at paras 21-27; Commanda v Algonquins of Pikwakanagan First Nation, 2018 FC 616 at para 19 (“Commanda”)).
[33] When appearing before me, the Applicant submitted that Vavilov did not change its position that reasonableness is the applicable standard of review. Counsel for the Respondent also accepted that reasonableness remains the appropriate standard of review for the merits of the Review Panel’s decision. I agree.
[34] Vavilov established a presumption that reasonableness is the applicable standard of review whenever a Court reviews an administrative decision (Vavilov at paras 16, 23, 25). That presumption can be rebutted in two types of situations. The first being where the legislature explicitly prescribes the applicable standard of review or where it has provided a statutory appeal mechanism from an administrative decision to a court thereby signalling the legislature’s intent that the appellate standards apply when a court reviews the decision. The second being when the rule of law requires that the standard of correctness be applied. This will be the case in certain categories of questions, namely, constitutional questions, general questions of law of central importance to the legal system as a whole, questions regarding jurisdictional boundaries between administrative bodies, or any other category that may subsequently be recognized as exceptional and also requiring review on the correctness standard (Vavilov at paras 17, 69).
[35] The majority in Vavilov held that, “it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review” (Vavilov at para 30, emphasis original).
[36] Here, the Review Panel was not delegated its decision making authority from a federal or other statute. However, this Court has previously recognized that a First Nation’s capacity to make laws concerning matters of leadership and governance are not derived from the Indian Act or other statutory power: “[r]ather it is the result of the exercise of the First Nation’s aboriginal right to make its own laws concerning governance.” (Gamblin v Norway House Cree Nation Band Council, 2012 FC 1536 at para 34). In my view, TTN, as a matter of self-governance, effected the TTN Custom Election Code. By way of the Code, TTN delegated authority to election review panels to address appeals of elections that allege violations of the Code and make determinations in that regard. Accordingly, the presumptive reasonableness standard applies because the TTN Custom Election Code has delegated authority to election panels to determine election appeals and because none of the circumstances exist which might rebut that presumption.
[37] Council for the Applicant noted that section 19.8 of the Code states that, “[a]n appeal of a decision of the Election Review Panel lies by way of application for judicial review to the Federal Court of Canada.” She submits, and I agree, that this is not a circumstance amounting to a statutory appeal mechanism of review panel decisions to a court, as identified in Vavilov. While the wording does reference an “appeal”, the wording is also clear that this relief is by way of judicial review to this Court.
[38] The Applicant is also of the view that significant deference is still owed to Aboriginal administrative decision makers, such as the Review Panel, based on their experience and expertise, as previously found in cases such as Pastion (at para 22) and Commanda (at para 19). However, that this Court need make no determination in that regard because, on the facts of this case, no amount of deference could save the fatally flawed Review Panel decision as it lacked justification, intelligibility and transparency.
[39] I agree that it is not necessary for this Court to delve into a comparative analysis of the deference owed, previously based on the acknowledged expertise of administrative decision makers as an aspect of the determination of the appropriate standard of review, with the requirements of Vavilov that a reviewing court consider the decisions of an administrative decision maker in their own particular contextual constraints, review its reasons in light of the record and with due sensitivity to the administration setting within which the reasons were given, and with respectful attention to a decision maker’s demonstrated experience and expertise (Vavilov at paras 31, 88-98).
[40] This is because, at the end of the day, regardless of any level of deference owed as related expertise, “[w]here a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility” (Vavilov at para 98). For the reasons that follow, that is the circumstance in this case.
Standard of review - procedural fairness
[41] In Mission Institution v Khela, 2014 SCC 24 (at para 79) and in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 (at para 43) the Supreme Court found that that questions of procedural fairness are reviewed on a correctness standard. In Vavilov, the Court does not explicitly state whether questions of procedural fairness will continue to be reviewed on a correctness standard. However, in establishing reasonableness as the presumptive standard of review for most questions on judicial review, the Supreme Court’s framework was concerned with circumstances where the merits of an administrative decision are challenged (Vavilov at para 16). And, at paragraph 23, the Supreme Court indicated that a challenge on the merits is not one that relates to natural justice or procedural fairness:
23 Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.
[42] On this basis, in my view, prior jurisprudence that establishes correctness as the standard of review for questions related to procedural fairness is still authoritative.
[43] That said, I disagree with the Respondent’s submission that the Court must consider “procedural issues” on the correctness standard, including questions of standing. Standing was not an issue before the Review Panel and the Panel made no determinations in that regard. Accordingly, the Court is not reviewing the decision of the Review Panel with respect to standing. Rather, standing is a procedural issue raised by the Respondent in this Court. Nor does Cowessess First Nation no 73 v Pelletier, 2017 FC 692 (“Cowessess”), referenced by the Applicant, support her submission that issues of standing attract a correctness standard of review. Cowessess merely stated that the standard of the review in that case was agreed to be reasonableness, except for questions of procedural fairness (at para 9). The Court then dealt with the preliminary standing issue as a procedural issue – not an as an issue of procedural fairness – and it did not apply a standard of review to that procedural issue.
[44] Finally, I note that the Supreme Court in Vavilov also addressed how a reasonableness review is to be conducted by a reviewing court (at paras 73-145). In that regard, it held that “[i]n order to fulfill Dunsmuir’s promise to protect ‘the legality, the reasonableness and the fairness of the administrative process and its outcomes’, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28.” (Vavilov at para 12). The reviewing court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified (Vavilov at para 15).
Preliminary Issue - Standing
[45] The Respondent makes two submissions which she frames as matters of standing. The first of these is that the impugned Chief and Council do not have standing to bring the judicial review application on behalf of TTN without a prejudicial conflict of interest. The second concerns the standing of the Respondent herself.
i. Standing of TTN
[46] The Respondent’s written submissions accept that TTN has a direct interest in the outcome of this application and that an appeal of the Review Panel’s decision is permitted by way of an application for judicial review to this Court pursuant to section 19.8 of the TTN Election Code. She also concedes that TTN has standing. However, she submits that it is less clear that the impugned Chief and Council have standing on behalf of TTN. The Respondent submits that this is because there was an unreasonable, self-serving delay in having the Review Panel constituted to hear the appeal; the TTN Custom Election Code is silent as to what occurs before the appeal process is concluded and as to who pays for the Panel; and, because past practice and a reasonable expectation are that the previous Council would remain in place until a pending appeal is resolved.
[47] In this regard, the Respondent references sections 17.2, 19.2 and 19.4 of the Code and asserts that the 8-month delay between the election and the hearing of the appeal is an unacceptable delay by the impugned Chief and Council, and that prejudice to her should be inferred. Further, that ignoring the Review Panel’s decision and failing to seek a stay of its decision is the equivalent of the impugned Chief and Council being in contempt of the decision. Accordingly, “this bears consequences on the equity of considering the relief requested” by the impugned Chief and Council on behalf of TTN (citing Ledoux v Gambler First Nation, 2019 FC 380 (“Ledoux”)). The Respondent also submits that “challenging an election outcome appeal, led by the Band and paid with Band funds, results in a conflict of interest due to the personal interests of the impugned Chief and Council to remain in power.” She contends that there is no incentive for a band member to bring a legitimate appeal if the impugned Chief and Council could delay the appeal and fund their own application at the Federal Court; she submits that cannot be the intended outcome of the TTN Custom Election Code.
[48] In my view, the issues of delay in constituting the Review Panel, alleged prejudice and cost implications of the application are not issues of the standing of the impugned TTN Chief and Council before this Court.
Delay
[49] While the Code does state that that an appeal must be brought within 30 days of an election (section 19.2) and that once an application is submitted to the Electoral Officer that the Review Panel shall complete its review within 30 days of receiving a written notice of appeal, it is otherwise silent as to the timing of the appeal process. The Respondent refers to section 17.1 of the Code, which states that ballots are to be retained for a 30 day period and, if there are no successful appeals, will be destroyed after 30 days. The Respondent suggests that it can be inferred from this and section 19.4 that review panels are to be convened within 30 days or as quickly as practical. Here, there was a delay of 8 months.
[50] Be that as it may, any delay in bringing the appeal does, not in and of itself, touch on standing before this Court.
[51] Standing is dealt with in Rule 303(1)(a) of the Federal Courts Rules, SOR/98-106 (also see s 18.1(1) of the Federal Courts Act). Rule 303(1)(a) states that an applicant shall name as a respondent every person who is directly affected by the order sought in the application, other than the tribunal in respect of which the application is brought.
[52] In Forest Ethics Advocacy Assn v Canada (National Energy Board), 2013 FCA 236 (“Forest Ethics”) Justice Stratas held that when considering Rule 303(1)(a), the question is whether the relief sought in the application for judicial review will affect a party’s legal rights, impose legal obligations upon it, or prejudicially affect it in some way (Forest Ethics at para 21). If so, the party should be added as a respondent. If that party was not added as a respondent when the notice of application was issued, then, upon motion under Rule 104(1)(b), it should be added as a respondent (Forest Ethics at para 21; also see Gitxaala Nation v Canada, 2016 FCA 187 at para 83 as to parties with direct standing).
[53] Thus, whether there was a delay in constituting the Review Panel is not an issue of standing.
[54] Indeed, the Respondent’s submission on this point are not concerned with standing, but suggest that prejudice should be inferred and the relief sought by the Applicant before this Court should be mitigated, in an unspecified way, by the alleged prejudice to the Respondent caused by the delay. She also asserts that the delay was deliberate and self-serving. However, the Respondent’s affidavit, affirmed on May 21, 2019 and filed in response to the application for judicial review, merely states that she objected to the amount of time it took for the Review Panel to be appointed but that her objections did not lead anywhere. She offers no evidence as to the reason for the delay, to establish that it was self-serving or how it prejudiced her. Nor is the suggestion that the relief sought by the Applicant should be impacted by the delay in effecting the Review Panel further developed in the Respondent’s submissions.
Contempt
[55] The Respondent also asserts that failing to seek a stay of the Review Panel’s decision is the equivalent of the Chief and Council being in contempt of that decision. Again, this is not an issue that affects the Applicant’s standing before this Court.
[56] It is true that the Review Panel decision, dated August 21, 2018, was that a new election was to be held and that, to date, the impugned Chief and Council have not sought a stay of that decision pending the outcome of this application for judicial review. Nor have they scheduled a new election while this application for judicial review is pending. However, it is important to consider this in the context of the procedural history of this matter.
[57] TTN filed its application for judicial review on September 20, 2018, being within 30 days of the Review Panel decision. By Order of the same date and pursuant to Rule 384 of the Federal Courts Rules, in accordance with Section A (Dispute Resolution thought Dialogue) of Part III of the Practice Guidelines for Aboriginal Law Proceedings (April 2016), the matter was immediately continued as a specially managed proceeding. Justice Mandamin was assigned as the Case Management Judge. By letter of October 4, 2018, counsel for TTN wrote to the Court advising that the decision calling for a new election had created uncertainty and confusion for members of TTN. As such, counsel requested a case management conference be convened as soon as possible to discuss a motion to stay the order for a new election or, in the alterative, to schedule an expedited hearing date. A case management conference call was held in October 2018 during which the Applicant proposed that the judicial review take place early in January. Justice Mandamin directed that a date would be scheduled and that, in the meantime, that the Applicant, in consultation with the Respondent, produce a timeline. The Applicant prepared a timeline that Justice Mandamin accepted. However, the Respondent advised in January 2019 that she was still self represented, and that it was unfair that she had to bear that cost as well as various other matters such as adding the Electoral Officer as a party to the application. She requested an extension of time to file her affidavit in response and a case management conference to discuss this request.
[58] A case management conference call was held in February 2019. The Respondent was permitted to serve and file her affidavit on or before March 31, 2019. The Applicant was directed to prepare a schedule, with the consent of the Respondent, for further steps in the proceeding on an expedited basis. The parties were unable to come to an agreement until April 29, 2019 when counsel for the Applicant advised the Court that the Respondent had retained counsel and that agreement had been reached on the form and content of a draft order, which was provided for the Court’s consideration. Justice Mandamin issued his Order on May 10, 2019 with the agreed timeline and ordered that the hearing was to take place on an expedited basis if the Court was able to accommodate this. Counsel jointly proposed hearing dates in August or September of 2019. By Order dated July 23, 2019, the hearing of the judicial review was set down to be heard on September 3, 2019. The Respondent sought a further extension of the time to serve and file her Respondent’s record and, by direction of Prothontary Furlanetto and with the consent of the Applicant, the extension was granted to August 8, 2019.
[59] The matter was convened for hearing on September 3, 2019, but was adjourned pending confirmation from the Review Panel as to what materials they considered in making their decision or the filing of its record in that regard. Once this was done the parties were to seek a hearing date as soon as possible. By letter of October 16, 2019, counsel for the Applicant confirmed compliance with that Order and asked that the hearing date be scheduled on an expedited basis. The application for judicial review was set down to be heard on January 8, 2020.
[60] The above procedural history is significant as it demonstrates that the Applicant has, since bringing its application for judicial review, been alert to the need to have the matter dealt with as expeditiously as possible and has attempted to do so. Further, the Applicant raised the possibility of seeking a stay of the Review Panel decision in the event that this could not be achieved. The Court’s file does not indicate that the Respondent or her counsel at anytime took issue with the time taken to have the matter heard at judicial review or that they were of the view that the Applicant should seek a stay of the Review Panel’s decision while the application for judicial review was pending. Given that the matter was in case management, it was