Alexander First Nation v. Burnstick

Alexander First Nation v. Burnstick
Court (s) Database
Federal Court Decisions
Date
2021-06-17
Neutral citation
2021 FC 618
File numbers
T-1440-20
Decision Content
Date: 20210617
Docket: T-1440-20
Citation: 2021 FC 618
Ottawa, Ontario, June 17, 2021
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
ALEXANDER FIRST NATION,
ALEXANDER FIRST NATION COUNCIL,
GEORGE ARCAND JR., KEVIN ARCAND,
CHRIS ARCAND, MARTY ARCAND,
HEATHER JENNINGS, AUDRA ARCAND,
AND SCOTT BURNSTICK
Applicants
and
KURT BURNSTICK, IVY BRUNO,
ERIC ARCAND, KAREN KOOTENAY,
JACOB THOMPSON, MICHEAL CALLIHOO,
TAMMIE BRUNO, KAILEY AMOR,
KYLA BRUNO, RILEY HARRISON,
LEO KEITH, YVONNE AMOR, AND LYNN ARCAND
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of the November 1, 2020 decision of an Appeal Board, appointed pursuant to the Alexander First Nation Band Custom Election Regulations [Election Regulations], with respect to the September 25, 2020 Alexander First Nation [AFN] election for Chief and Council [Election]. The Appeal Board found that the candidates for Chief and Council had not been elected into office in accordance with Election Regulations, therefore a new election was required.
Background
[2] The AFN is a band within the meaning of the Indian Act, 1985 RSC c I-5. Its elections are governed by the Election Regulations, which were effected by the AFN in 1987.
[3] The Applicants are the AFN, the AFN Council, and the individual Chief and Councillors elected on September 25, 2020. The named Respondents are the appellants in the Election appeals. However, only three of the Respondents – Kurt Burnstick, Ivy Bruno, and Eric Arcand – participated in the judicial review.
[4] Pursuant to the Election Regulations, Chief and Council is composed of one Chief and six Councillors who hold office for three years. They are required to call an election at least thirty days before an election would ordinarily be held (i.e. the end of their term of office). At that time, the Chief and Council are also required to appoint an electoral officer and members of the election appeal board. The appeal board is to be composed of individuals who are not members of the AFN.
[5] On August 25, 2020, the former AFN Chief and Council appointed Loretta Pete Lambert as electoral officer [Electoral Officer] and three Appeal Board members.
[6] The Election was scheduled during the Covid-19 pandemic. In advance of the Election, the Electoral Officer posted the Covid-19 precautions that would be in place during voting. She also made several adjustments to the voting process. Most significantly for the purposes of this judicial review, the Electoral Officer decided to use an electronic voting tabulation machine to count ballots for Councillors to minimize contact with ballots and reduce the need for people to gather for an extended period to count ballots. This meant that although the Election Regulations state that each ballot must be marked by an “x” placed beside the name of the candidates for whom the elector intends to vote, electors were instead instructed to indicate their choice by filling in an oval by the names of their chosen candidates.
[7] The Election Regulations also define “electors”, that is, those persons who are eligible to vote. This includes that an elector must be 21 years old, a member of the AFN, and be ordinarily resident or have resided on AFN reserve land for at least one month. Any person who disputes the name of an elector included on a voter’s list or who believes their name should be included on the voter’s list may apply to the electoral officer for a determination of the matter at any time up to 8:00 p.m. on the date of the election. The Election Regulations also state that the electoral officer shall not be bound by any rules of evidence and their decision shall be final and binding.
[8] Voting was conducted on September 25, 2020 at the AFN Community Centre. Sixty-three potential electors who presented themselves at the Community Centre, but who were not on the voter’s list, were permitted to make statutory declarations attesting to their residence. These statutory declarations were declared before AFN’s in-house counsel, Mr. Brooks Arcand-Paul, a commissioner of oaths.
[9] When voting was concluded, the ballots for Chief were counted by hand while the ballots for Councillors were tabulated by machine. The Electoral Officer prepared a Statement of Election Results, dated September 25, 2020. Of the 533 ballots cast, three ballots for Chief and two ballots for Councillors were rejected. Mr. George Arcand was elected Chief with 308 votes, the Respondent Kurt Burnstick received 208 votes and, a third candidate received 37 votes. Kevin Arcand (249 votes), Chris Arcand (218 votes), Marty Arcand (167 votes), Heather Jennings (165 votes), Audra Arcand (164 votes), and Scott Burnstick (158 votes) were elected as Councillors. The Respondents Eric Arcand and Ivy Bruno received 86 and 73 votes respectively. The Statement of Results also states that the election is “Effective immediately for a three year term ending September 25, 2023”.
[10] Following the Election, thirteen appeals were filed with the Appeal Board. On October 23, 2020, the Appeal Board sent letters to each appellant, advising them that the Appeal Board had scheduled an “Appeal Hearing Date” for October 28, 2020 at a specified time. The letters indicated the hearing location and gave appellants the opportunity to appear in person or via Zoom. There is little other evidence in the Certified Tribunal Record [CTR] about the Appeal Board’s process. There are no notes, recordings or transcripts of any hearings or proceedings conducted on October 28, 2020 or otherwise.
[11] The Affidavit of Mr. Arcand-Paul affirmed on May 5, 2021 [Arcand-Paul Affidavit] attaches as Exhibit I notes from an October 22, 2020 telephone call he had with the then Appeal Board Chair, Ms. Sherri Turner (who later resigned and was replaced by Ms. Kellie Wuttunee). These notes indicate that the Chair advised Mr. Arcand-Paul that thirteen appeals had been filed, they were scheduled to be heard on October 28, 2020, and that the Electoral Officer would be interviewed. The notes record that Mr. Arcand-Paul asked about the content of the appeals, and the Chair’s response with respect to sharing the nature or issue of the appeals was “Not going to do that at this time. Legal counsel advised against it”. As to sharing of appeal information with the community, the notes record “No to sharing information with the community. Appeal board would like to respect the impartiality. Invites to the hearings for the relevant parties will be out tomorrow …”. And, as to whether AFN was able to submit written submissions, the recorded response is “No, not appropriate”.
[12] On October 23, 2020, the Chief and Council distributed an “Election Appeal Update”. The update contains much of the same information as in the Arcand-Paul notes from the telephone call the day before with the Appeal Board Chair:
ELECTION APPEAL UPDATE
October 23, 2020
The Chief and Council have received an update regarding the election appeal. Below is a summary of the information provided:
1) There are 13 appeals before the Electoral Appeal Board.
2) The hearings are tentatively scheduled for October 28, 2020, subject to scheduling conflicts.
3) Hearing details will be sent to relevant parties by Friday, October 23, 2020.
4) The Appeal Board will provide their final decision by November 2, 2020, subject to scheduling conflicts.
5) The Appeal Board has been advised by their independent legal counsel not to release any information related to the issues or nature of the appeals to the Nation.
6) The Appeal Board has also stated that submissions will only be received from a party relevant to an [sic] appeal.
…….
[13] On November 1, 2020, the Appeal Board sent the AFN and the appellants its decision. The Appeal Board allowed the appeal on three grounds, as set out below. The Appeal Board made no reference to any further reasons that were to follow.
[14] On November 4, 2020, the newly elected AFN Chief and Council convened a members meeting at which the Appeal Board’s decision was discussed. The Applicants’ evidence is that the clear majority of those members in attendance supported a legal challenge of the decision, confirmed support for the newly elected Chief and Council and opposed holding a new election.
[15] Chief and Council passed a band council resolution [BCR] to this effect on November 13, 2020. The BCR includes a statement that Chief and Council had received legal advice that the Appeal Board’s decision is incorrect, unlawful, procedurally unfair and unreasonable and, on that basis, had made the decision to seek judicial review of the decision. The BCR resolves to instruct legal counsel accordingly and to seek a stay of the Appeal Board decision pending the determination of the judicial review; that no election will be held; and, that Chief and Council elected on September 25, 2020 would continue in that capacity pending the determination of the judicial review.
[16] On November 16, 2020, after Chief and Council had decided to seek judicial review of the Appeal Board’s decision, the Appeal Board released a “Final Report” which provides summaries of the evidence presented at the appeals and the Appeal Board’s analysis underlying its decision.
[17] This application for judicial review was filed on November 26, 2020. The Chief and Council elected on September 25, 2020 has continued to govern and a new election (pursuant to the Appeal Board’s Decision) has not been held.
Decision under review
[18] The November 1, 2020 decision of the Appeal Board is reproduced in full below:
VIA Email
Attention: Alexander First Nation Chief and Council
Dear Sirs/Madam
Re: Alexander First Nation Election Appeal Decision
The Appeal Board for Alexander First Nation Election September 2020 (“Board”) is appointed by the Alexander First Nation Chief and Council pursuant to the Alexander First Nation Band Custom Election Regulations (“Regulations”).
The Board finds the candidates for Chief and Council have not been elected to office in accordance with the Regulations and the Electoral Officer shall hold a nomination meeting and election for the vacant office or offices in accordance with the Regulations.
The Board finds the following Regulations have not been applied in this Election:
Pursuant to section twenty-two (22) a person presenting himself for the purpose of voting shall, upon being confirmed by the Electoral Officer or his assistant as an elector, be given one (1) ballot upon which to register his vote. The Electoral Officer or his assistant shall initial each ballot as it is given to the elector. The Board finds the use of sixty-three (63) statutory declarations did not effectively provide evidence to the Electoral Officer to confirm that an individual was living on-reserve at least one month prior to the Elections, as a Commissioner of Oaths is not required to review any proof of residency before signing. Therefore, Regulation twenty-two (22) is breached.
Pursuant to section twenty-three (23) each ballot must be marked with an ‘x’ being placed beside the name of the candidate or candidates from whom the elector intends to vote and such instruction shall be clearly posted at the place of voting by the Electoral Officer. The Board finds the electronic tabulator used during the election did not allow the use of an ‘x’ for the candidates for Council, as the equipment required an oval bubble to be filled, to count the results of each ballot. If the oval bubble was not filled the ballot was rejected, therefore placing an ‘x’ within the bubble would not have resulted in a counted ballot and subsequently Regulation twenty-three (23) is breached.
Pursuant to section thirty-five (35), the Regulations may only be amended by fifty-one percent (51%) of the electors of Alexander First Nation who endorse their signatures on a petition. A meeting shall be called for the purpose of discussing the amendments. The Board finds the ballots for the candidates for Chief were counted by hand and an ‘x’ should have been placed beside the candidates name, however the ballot provided was identical to that of the Council and included clear instructions to fill in an oval bubble. Therefore, Regulation thirty-five (35) has been breached.
Nonetheless, an amendment was not made to the Regulations, as a result of fifty-one percent (51%) of the electors signing a petition, to approve the use of an electronic tabulator.
The Board is fully aware of the risks due to the Global Pandemic and financial expense of a new election for Alexander First Nation. However, the concerns of the Appellants were valid and upholding the Law of Alexander First Nation is essential. As a Board, we have a responsibility to make a finding and deliver a decision within five (5) days of the Appeal Hearings pursuant to the Regulations.
The Board reminds the Electoral Officer that they shall hold a nomination meeting and election for the vacant office or offices in accordance with the Regulations, where the Board finds the candidates were not chosen in accordance with the Regulations.
The Board has enclosed several recommendations to Chief and Council as well as the Electoral Officer, prior to the new Elections, for their consideration.
Regards,
Kellie Wuttunee
Election Appeal Board Chairperson
Recommendations
1. The Board recommends the Electoral Officer utilize voting by way of an ‘x’ until any changes are made to the Regulations by fifty-one percent (51%) of the electors.
2. The Board recommends the Electoral Officer utilizes an Affidavit for verification of those electors on-reserve, as statutory declarations cannot effectively verify whether an individual lives on reserve.
3. The Board recommends Alexander First Nation set a specified time limit within which an election is to be held after an Appeal Board finds a new election is required. Currently there is no specified time listed for a new election within the Regulations. The Board recommends that an election take place within thirty (30) days.
4. The Board recommends Alexander First Nation select an alternative Electoral Officer if a second election is to take place after a successful appeal, as this would assure the electors that the new election would be run in accordance with the Regulations.
Legislative Scheme
[19] The most relevant portions of the Election Regulations are reproduced in Annex A of these reasons.
Issues
[20] In my view, the issues arising in this application can be framed as follows:
Preliminary issue: are portions of the affidavit evidence inadmissible as hearsay, opinion or argument?
Was the Appeal Board’s process procedurally fair?
Was the Appeal Board’s decision reasonable?
If the process was unfair or the decision unreasonable, what remedy should follow?
Standard of Review
Applicants’ position
[21] The Applicants point to the wording of s 30 of the Election Regulations in support of their submission that the AFN’s legislative choice to provide for an appeal suggests that the correctness standard of review applies, referencing the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. The Applicants also submit that the appellate standard of review applies and this Court is “free to replace the opinion of the [Appeal Board] with is own” (citing Housen v Nikolaisen, 2002 SCC 33 at para 8). Alternatively, the Applicants submit that the reasonableness standard of review applies.
[22] The Applicants submit that the correctness standard of review applies to questions of procedural fairness.
Respondents’ position
[23] The Respondents submit that the reasonableness standard of review applies to the substantive issues and the correctness standard applies to procedural fairness issues. And, contrary to the Applicants’ position, this is not a statutory appeal. In that regard, the Respondents note that the Applicants state in their Notice of Application that this is an application for judicial review. The Respondents characterize s 30 of the Election Regulations as a privative clause, not as a statutory appeal provision and submit that the only relief available to the Applicants is through an application for judicial review. And, even if this was a statutory appeal, it could only be based on questions of law and not fact. Therefore, the substantive issues raised by the Applicants would not be available on a statutory appeal.
Analysis
[24] The Supreme Court of Canada in Vavilov held that the standard of reasonableness presumptively applies whenever a Court reviews an administrative decision (Vavilov at paras 16, 23, 25). That presumption may be rebutted in two circumstances. The first is where the legislature has prescribed the standard of review or where it has provided a statutory appeal mechanism thereby signalling the legislature’s intent that appellate standards should apply (Vavilov at paras 17, 33). The second circumstance is where the rule of law requires the application of the correctness standard. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov at paras 17, 53).
[25] Section 30 of the Elections Regulations states as follows:
30. The appeal board shall hear the appeal with thirty (30) days of filing of the notice of appeal and shall deliver its decision with five (5) days of the hearing of the appeal. The appeal board shall not be bound by any rules of evidence. The decision of the appeal board shall be final and binding. Any appeal to a Court of Law shall be founded in law and not in fact.
[26] Arguably, this could be viewed as the AFN’s legislative intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision (Vavilov at para 36). And, therefore, that a court hearing such an appeal should apply appellate standards of review to the Appeal Board’s decision (Vavilov at paras 37, 44-45).
[27] However, when addressing how the presence of a statutory appeal mechanism should inform the choice of the standard of review analysis, the Supreme Court in Vavilov also stated:
[52] Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.
(emphasis added)
[28] Further, in Yellowdirt v Alexander First Nation, 2013 FC 26 [Yellowdirt] this Court considered the AFN Election Regulations and stated that appeal board decisions “can be appealed or reviewed” (at para 35).
[29] Here, in their Notice of Application, the Applicants specifically bring an application for judicial review pursuant ss 18, 18.1 and 28 of the Federal Courts Act, RSC 1985 c F-7, as opposed to an appeal pursuant to certain section of the statute, which in this case would be s 30 of the Election Regulations. And, the Applicants are seeking declaratory relief, including that the Appeal Board breached the requirements of procedural fairness and that its decision was incorrect and unreasonable. The Applicants also seek an order quashing the decision and “directing the Appeal Board, pursuant to s 18.1(3)(b) of the Federal Courts Act to dismiss the appeals and uphold the Election”, and alternatively, to direct a new panel to re-determine the appeals.
[30] In my view, it is abundantly clear that the Applicants have elected to challenge the Appeal Board decision by way of judicial review, not by statutory appeal. Accordingly, the standard of review for the substantive issue is reasonableness.
[31] When applying the reasonableness standard, a reviewing court “asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at paras 15, 99). When a decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and the law that constrain the decision maker, it is reasonable and is to be afforded deference by a reviewing court (Vavilov at para 85).
[32] The standard of review for issues of procedural fairness is correctness (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. And, as I previously stated in Morin v. Enoch Cree First Nation, 2020 FC 696 [Morin]:
[21] A court assessing a procedural fairness argument is required to ask whether the procedure was fair having regard to all of the circumstances, including the factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) (“Baker”), and with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed (Canadian Pacific Railway Company v Canada, 2018 FCA 69 at para 54 (“Canadian Pacific”)).
[22] No deference is owed to the administrative decision maker under the correctness standard. And, it is for the reviewing Court to determine if an applicant’s procedural fairness rights were violated (Canada Pacific at paras 33-56; Elson v Canada (Attorney General), 2019 FCA 27 at para 31; Connolly v Canada (National Revenue), 2019 FCA 161 at para 57).
Preliminary issue: are portions of the affidavit evidence inadmissible as hearsay opinion or argument?
Applicants’ position
[33] The Applicants do not address this as a discrete issue in their written submissions. However, they do submit within their argument that portions of the responding Affidavit of Kurt Burnstick, sworn on May 10, 2021 [Burnstick Affidavit] are hearsay, specifically Mr. Burnstick’s evidence asserting historical and cultural significance to the marking ballots with an “x”. The Applicants submit that this evidence is unattributed, it is hearsay and therefore it is inadmissible for the truth of its contents. The Applicants also note that this historical evidence is being submitted for the first time on judicial review and is an impermissible attempt to bolster the record.
Respondents’ position
[34] The Respondents assert that the Applicants, through their affidavit evidence, are also attempting to bolster the record. The Respondents submit that almost all of the Applicants’ submissions on the reasonableness of the decision rely on evidence in the Applicants’ affidavits and not on the record that was before the Appeal Board. The Respondents submit that the Applicants’ evidence about the merits of the decision should either be disregarded or struck.
[35] The Respondents also submit that the Applicants mischaracterize Mr. Burnstick’s affidavit evidence. This evidence is a summary of the submissions he made to the Appeal Board. Even if it is hearsay, it is admissible as it demonstrates what evidence was before the Appeal Board, rather than the truth of its contents. Moreover, Mr. Burnstick’s evidence is that he testified before the Appeal Board that he was present when the Election Regulations were adopted. Therefore, his affidavit evidence speaking to the intent of the AFN is his personal knowledge, not hearsay.
Analysis
[36] As a general rule, the evidentiary record before a Court on judicial review is restricted to the evidentiary record that was before the decision maker. Evidence that was not before the decision maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22; Bernard v Canada Revenue Agency, 2015 FCA 263 at para 35).
[37] The first exception is an affidavit that provides general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review, but care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision maker. The second exception is evidence that brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision maker so that the Court can fulfill its role of reviewing for procedural unfairness. The third exception is evidence that highlights the complete absence of evidence before the administrative decision maker when it made a particular finding.
[38] Pursuant to Rule 81(1) of the Federal Courts Rules, SOR/ 98-106, affidavit evidence is restricted to facts within the deponent’s personal knowledge. Moreover, the purpose of an affidavit is to adduce facts relevant to the dispute “without gloss or explanation” including opinion or argument (Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18).
[39] In this matter, the Appeal Board did file a CTR pursuant to Rule 318. However, the CTR contains virtually no evidence that was before the Appeal Board when it rendered its decision. Other than the notices of appeal, and two partial text messages from Kurt Burnstick to Casey Auigbelle which were submitted by Kurt Burnstick, the record is comprised only of communications between the Appeal Board, the appellants, and others, concerning hearing times and dates and that the appeals are not to be made public. There are no hearing notes nor any record of the submissions made at the appeal hearings. Faced with this void, to a certain extent both parties attempt to bolster the record through their affidavit evidence or to explain the Appeal Board’s decision. While understandable, the affidavit evidence cannot be used for those purposes.
[40] As to the Burnstick Affidavit, because there is no transcript or recording of the Appeal Board’s proceeding, there is no way to confirm that the “summary of the information [he] gave to the Appeal Board” (Burnstick Affidavit at para 22) accurately portrays what he submitted to the Appeal Board. More significantly, Mr. Burnstick’s explanation of the asserted historical significance of the requirement that ballots be marked with an “x” is not particularly relevant to the determination of this judicial review. This is because the Appeal Board’s Decision makes no reference to this submission and there is no reason to believe that its finding was based on the point. Rather, the Appeal Board stated that “If the oval bubble was not filled in the ballot was rejected, therefore placing an ‘x’ within the bubble would not have resulted in a counted ballot and subsequently Regulation twenty-three (23) is breached”. Putting aside the potential factual error in this finding, discussed below, this conclusion does not support that the Appeal Board based its finding on the alleged historical significance of making ballots with an “x”.
[41] Further, in the Final Report, issued after the decision, the Appeal Board referenced Mr. Burnstick’s apparent submission that as a young man he had been present at a meeting of those writing the Election Regulations and that the intention of the use of an “x” was significant and was the will of the Elders. However, the Appeal Board concluded that, in the absence of any written documentation as to the interpretation of the Election Regulations and the use of an “x”, Mr. Burnstick’s reference to the purpose of the “x” “could not be considered with any level of weight”. To the extent that the Burnstick Affidavit evidence challenges the merits of the Appeal Board’s decision on this point, it is not the Court’s role to reweigh the evidence.
[42] Read in whole, the Burnstick Affidavit contains other information that is not relevant to this judicial review or is opinion evidence. Accordingly, I afford those portions of the affidavit little weight. I note that in addition to the Burnstick Affidavit, the Respondents have filed affidavits of Eric Arcand, Ivy Bruno, Marcel Paul, Cheryl Savoie, Sheldon Arcand and Anita Arcand.
[43] The Applicants filed affidavits of Loretta Pete-Lambert, Chief George Arcand Jr, Chris Arcand, Kevin Arcand, Brooks Arcand-Paul, Audra Arcand, Heather Jennings, Marty Arcand and Scott Burnstick. The affidavits of the Electoral Officer and Mr. Arcand-Paul include their respective views on the proper interpretation of the Election Regulations. This amounts to legal argument and/or opinion. Further, some of the Applicants’ affiants provide evidence that goes to the merits of the decision but is not found in the record. For example, the Electoral Officer’s attestation that ballots marked with an “x” were still counted. This evidence is given little weight.
[44] However, to the extent that the Applicants’ affidavit evidence highlights procedural defects that cannot be found in the record or a lack of evidence before the decision maker, this evidence is admissible because it speaks to procedural unfairness.
Issue 1: Was the Appeal Board’s process procedurally fair?
Applicants’ position
[45] The Applicants submit that the Appeal Board breached procedural fairness because it failed to provide notice of the appeals to AFN or the new Chief and Council and because the Appeal Board did not allow AFN, Chief and Council or the community to participate in the appeals, to know the nature of the appeals, the evidence and arguments, or to make submissions.
[46] The Applicants note that at a minimum procedural fairness requires meaningful notice so that a person whose interests are at stake is aware of the allegations made and has a reasonable opportunity to respond and to be heard by the decision maker before the decision is made. Further, that custom cannot override the requirements of procedural fairness. Procedural fairness applies notwithstanding that the Election Regulations are silent as to the precise procedural safeguards to be afforded to a person whose interests are at stake. The Applicants submit that because they are required to leave their employment upon being elected their interests are engaged and they are entitled to procedural fairness.
[47] The Applicants also submit that the Appeal Board violated foundational procedural fairness rights by: not providing notice of the appeals to Chief and Council despite the fact that their newly elected positions were apparently placed in jeopardy by the appeals; rejecting the AFN’s request to be granted standing, even though an interpretation and application of its laws and electoral practices was at issue; expressing resistance to AFN making submissions; and, conducting the appeal process behind closed doors and hearing only from the appellants. The Applicants submit that these breaches void the entire proceeding and, therefore, the decision should be quashed.
Respondents’ position
[48] The Respondents submit that the Appeal Board’s process was fair. They submit that the AFN did participate in the appeal. The Final Report indicates that the Appeal Board spoke to the Electoral Officer and the AFN’s administrator. Therefore, “the AFN’s representatives gave extensive evidence and had the opportunity to respond to all issues raised by the appeals”.
[49] The Respondents submit that the individual Applicants were aware of the appeals as demonstrated by the fact that Chief and Council distributed the Community Update about the status of the appeals. Because the Applicants had actual notice of the appeals, no formal notice or invitation to participate was required. The Respondents also submit that because the individual Applicants did not object to their lack of involvement at the time, they waived their ability to claim a breach of procedural fairness in this application.
[50] Finally, the Respondents submit that the Applicants cannot simultaneously claim that they were not afforded a procedurally fair process and that the record is sufficiently complete such that the Court need not remit the matter back to the decision maker. The Respondents submit that the Applicants must demonstrate that the breach of procedural fairness was material and would have affected the result.
Analysis
[51] In my view, it is beyond dispute that the Applicants – as Chief and Council and as newly elected individual members of Chief and Council – were owed a duty of procedural fairness.
[52] The Applicants submit that they are affected for employment reasons, specifically that the Election Regulations required them to leave their prior employment immediately upon election. To my mind, this is an underlying or secondary aspect of the fact that the duty is owed because the Appeal Board’s decision could, and did, cause the Applicants’ positions as newly elected Chief and Council to be vacated. As this Court recently stated in Halcrow v. Kapawe'no First Nation, 2021 FC 219 [Halcrow], a case considering procedural fairness in a similar context:
[57] The Applicants, having been elected, had the highest personal interest of any member of the KFN, in any reconsideration of the election results by the Appeal Committee. This fact alone elevates, and by a significant degree, the procedural fairness owed to them. The Applicants had the right to have adequate notice of the case against their successful elections, and they should have been provided with sufficient opportunity to make representations before a decision adverse to their interests was made.
(see also Ledoux v Gambler First Nation, 2019 FC 1465 at para 25 [Ledoux II].)
[53] Regarding the content of the duty of procedural fairness, as I previously stated in Morin:
[32] The concept of procedural fairness is eminently variable and its content is to be determined in the specific context and circumstances of each case (Baker at para 21). Whether the duty of procedural fairness has been met in any given case depends upon the nature of the decision being made, the nature of the statutory scheme and the terms of the statute pursuant to which the administrative body operates, the importance of a decision, the legitimate expectations of the person challenging the decision, and the choice of procedure of the decision maker (Baker at paras 23-27).
[33] I would also note that, more generally, Baker at para 28 states:
The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.
[34] Significantly, notice and an opportunity to make representations have been characterized as the most basic requirements of the duty of fairness (Orr v Fort McKay First Nation, 2011 FC 37 at para 12 (“Orr”); Gadwa at paras 48-53). Further, the Federal Court of Appeal has stated that, “No matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” (Canadian Pacific at para 56).
[54] As stated by Justice Kane in Weekusk v Thunderchild First Nation Band Council, 2014 FC 845 [Thunderchild]:
[78] The minimum requirements of procedural fairness require meaningful notice so that the person whose rights or interests are at stake is aware of the specific allegations made and has a reasonable opportunity to respond to those allegations and to be heard by the decision-maker before a final decision is made.
[55] In my view, this Court’s previous decision in Yellowdirt is also significant as it addressed the procedural fairness of an appeal convened under these Election Regulations. There, the applicant sought judicial review of the appeal board’s decision rejecting his election appeal. The applicant had appealed the election results on a number of grounds, including that the respondents had engaged in vote buying, and that the residence requirement violated the Charter.
[56] The Court noted that the AFN Election Regulations are silent on the powers and the procedures of the appeal board, including notice and the hearing process. However, in that case, the chair of the appeal board considered that the applicant had the onus to bring compelling evidence to prove his allegations on a balance of probabilities and had explained that the individuals affected by the evidence may wish to attend and give evidence contrary to the applicant's evidence (para 34). This Court held that:
[35] The Appeal Board has the basic attributes of a judicial decision maker. It makes final factual determinations which include credibility findings and questions of law. Ultimately, its decisions, which can be appealed or reviewed, can bring about the cancellation of elections. Furthermore, the Chair of the Appeal Board understood that the onus was on the Applicant in bringing forward viva voce testimony and that he had the right to cross-examine witnesses. This is what a judicial tribunal is all about.
[36] Therefore, the basic principles of natural justice apply in order to ensure that a fair process exist and that guarantees that all the evidence presented to the Board, which may directly or indirectly impact on the decision to be made, is heard by all.
[37] In the case at bar, the Chair breached procedural fairness by communicating privately with two important witnesses against whom serious allegations of electoral corrupt practice consisting of facilitating the issuance of a $1300 cheque by the Band Administration in return for votes, which are revealed by the testimony of Mr. Bruno. During the conversations, issues of substance were addressed: “[t]he allegations were discussed, the testimony of Mr. Bruno was also dealt with, and both Respondents Paul and Burnstick denied the allegations and refused to appear and testify.” This is vital evidence communicated directly to the Chair but not directly to the other two panel members, the Applicant and the public. The Chair did report the conversations to the Applicant and the other panel members but this is not a remedy to the breach committed. This crucial information could not be dealt with in public like it should have been and the Applicant had no opportunity to test the version given by the two individuals through cross-examination. If the Chair of the Appeal Board wanted to be fair to the Respondents Paul and Burnstick by communicating the testimony of Mr. Bruno to them, he was unfair to the Applicant. The means by which the contradictory evidence should have been dealt with is a public hearing, which must be accessible to all. There is in no way to know what impact these conversations had on the Appeal Board members but any neutral observer, in such a situation, would have serious concerns about the objectivity of the decision-making process followed.
[38] The breach is so fundamental that the argument to the effect that because the Applicant did not object to the Chair’s private communications with Respondents Paul and Burnstick and that he even requested the Chair of the Appeal Board to contact t