Tanner v. Gambler First Nation

Tanner v. Gambler First Nation
Collection
Canadian Human Rights Tribunal
Date
2015-08-07
Neutral citation
2015 CHRT 19
File number(s)
T1966/4613
Decision-maker(s)
Ulyatt, George E.
Decision type
Decision
Decision status
Final
Grounds
Family Status
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2015 CHRT
19
Date:
August 7, 2015
File No.:
T1966/4613
Between:
Sharon Tanner
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Gambler First Nation
Respondent
Decision
Member:
George E. Ulyatt
Table of Contents
I.The Complaint 1
II.Issue 1: The Descent Rule 1
A.Relevant Facts 1
B.Issues 4
C.Parties Submissions and Analysis 5
(i)Preliminary Issue: Does the complaint include the positions of Councillors as well as the position of Chief? 5
(ii)Ms. Tanner’s case of discrimination: Does the Descent Rule and its application by the Nation to the Complainant, denying her the right to be a candidate for the position of Chief, constitute a prima facie case of discrimination? 6
(iii)Bona fide justification: if the Complainant has demonstrated a prima facie case of discrimination, has the Respondent shown that the practice has a bona fide justification? 14
D.Conclusion on Issue 1: Complaint Substantiated 32
III.Issue 2: Other Alleged Differential Treatment 32
A.Denial of Income Assistance 33
(i)Relevant Facts 33
(ii)Parties Submissions and Analysis 35
B.Denial of Use of Medical Van 38
C.Banishment from Band Facilities and Exclusion from Activities and Services 38
IV.Issue 3: Retaliation 40
A.Summary of the Relevant Facts 41
B.Parties’ Submissions and Analysis 44
V.Order 49
A.Cease and desist order 49
B.Compensation for pain and suffering 50
C.Special compensation 51
D.Compensation for lost wages 53
E.Retention of jurisdiction 53
I. The Complaint
[1] Sharon Tanner (“the Complainant” or “Ms. Tanner”), filed a complaint against Gambler First Nation (“the Respondent” or “the Nation”), of which she is a member, on May 22, 2012. She alleges that the Nation has discriminated against her on the basis of race, national or ethnic origin, and/or family status, pursuant to section 5 of the Canadian Human Rights Act (“the CHRA”), when it created and enforced against her a rule seeking to prevent all persons who are not blood descendants of John Falcon Tanner from running in elections for the positions of Chief or Councillor of the Nation (“the Descent Rule”) (Issue 1: The Descent Rule). The Complainant alleges that the Respondent has also discriminated against her in denying her access to a number of services including income assistance, the use of the medical van, snow removal service and in banishing her from Band facilities and activities (Issue 2: Other Differential Treatment).
[2] Lastly, the Complainant alleges that, following the filing of her complaint, the Respondent engaged in retaliatory actions. According to the Complainant, the Respondent terminated her employment as an Economic Development Officer for the Band Council because she had filed a human rights complaint against them (Issue 3: Retaliation).
[3] The Canadian Human Rights Commission (the Commission), determined that an inquiry into the complaint was warranted and referred the complaint to this Tribunal on October 3, 2013.
II. Issue 1: The Descent Rule
A. Relevant Facts
[4] The Complainant is an Aboriginal woman, registered as an “Indian” pursuant to the Indian Act, R.S.C. 1985, c. I-5. She was born a member of the Sagkeeng First Nation, also known as the Fort Alexander First Nation, in Manitoba.
[5] In 1981, Ms. Tanner married her late husband, Alex Tanner, who was a member of the Nation. As a consequence of this marriage, pursuant to the provisions of the Indian Act in force at the time, Ms. Tanner ceased to be a member of the Sagkeeng First Nation and became a member of the Nation. Since that time, Ms. Tanner has lived in the Nation. Ms. Tanner’s husband passed away in 1985. However, she still lives in the Nation with her daughter, Charlene Tanner, who was born in 1982 and is also a member of the Nation.
[6] Since 1985, membership in the Nation has been governed by section 10 of the Indian Act. This section recognizes the ability for a First Nation to assume control over its own membership list by adopting written community membership rules that define who is eligible to be added to the list. The Nation has availed itself of this discretion and has, reportedly, enacted its own membership code. The membership code was not filed into evidence at the hearing before the Tribunal.
[7] Since the mid-1970s, the Nation has also selected its Chief and Council pursuant to its own customary election procedures. It has, since this time, been governed by a Council consisting of one elected Chief, and two elected Councillors.
[8] In 1993, the Nation drafted a document called “1993 Custom Regulations” which sought to formalize this practice. The Custom Regulations required that a candidate seeking office as Chief and/or Councillor be:
(i) a registered member that ordinarily resides in Gamblers First Nation;
(ii) be 18 years of age or older;
(iii) not have been convicted of an indictable offence within the year leading up to the nomination; and,
(iv) have their nomination moved and seconded in accordance with the 1993 Custom Regulations.
[9] The 1993 Custom Regulations document indicates that it passed a second reading on November 2, 1993 but does not, however, indicate if it ever passed a third reading. The document was also never signed. It is unclear whether the Custom Regulations ever came into force or whether its provisions reflect a broad consensus among the Nation’s members concerning customary election practices.
[10] In 2006-2007, the Nation sought to codify its customary election practices, along with a new membership law and constitution. The Chief and Council hired Mr. Larry Catagas, Governance Advisor and Policy Development Officer with the West Region Tribal Council, as an independent third party to help with the development of an election code and to conduct a referendum so as to allow the Band membership to vote on its adoption. The Nation created three documents, the Band Custom Election Law (the Election Law), the Gambler First Nation Membership Law (the Membership Law), and the Gambler First Nation Constitution (the Gambler Constitution).
[11] Section 4.2 of the Election Law enumerates the eligibility requirements for the positions of Chief and Councillor. It reads as follows:
A Candidate for Chief or Councillor is a person who is:
a) a member of the Gambler First Nation and a blood descendant of John (Falcon) Tanner signatory to Treaty 4 (1874). See family tree.
b) at least eighteen years of age up as of the date of nominations
c) resident for a continuous period of six months preceding the date of nominations
d) must have a minimum 2 years Leadership of Administrative experience or training
e) has not been convicted for an indictable offence, for three years preceding the date of nominations, and
f) files a police record check clearance within one week after the nomination date, in which failure will result in the nomination being declared void.
g) Candidates must produce all of the above to the Chief Electoral Officer within one week from the date of the nomination.
[12] Section 22 of the Election Law enunciates the terms of its coming into force:
These regulations come into force the day they are approved by the simple majority of electors as per the referendum process of Gambler First Nation.
[13] On May 17, 2007, a referendum vote took place on the adoption of the Election Law, the Membership Law and the Gambler Constitution. The legitimacy of this referendum, the adoption of the Election Law, and its purported reflection of the Nation’s past customary practices (particularly the practice of limiting candidates for the positions of Chief and Councillors to blood descendants of John (Falcon) Tanner: “the Descent Rule” at section 4.2(a) of the Election Law), are disputed.
[14] However, according to the evidence, on November 5, 2010, Chief G. LeDoux and Councillors Roy Vermette and Ronnie Ducharme signed a one-page document which appears to indicate the official adoption of the 2007 Election Law. This document contained the following text:
Section 23 Official Adoption
This Custom Election Law is hereby adopted according to the results of the Band Referendum on this in 2007/08 Sworn Under Oath by Larry Catagas this 5th day of November 2010.
[15] On February 29, 2012, the Nation held a nomination meeting for the position of Chief and the positions of Councillors for elections scheduled to take place on or around March 30, 2012. The Complainant was nominated to run for the position of Chief. Mr. Larry Catagas, the Nation’s Chief Electoral Officer, informed the Complainant that she was, however, ineligible for the position of Chief as she was not a blood descendant of John (Falcon) Tanner and therefore did not comply with section 4.2(a) of the Election Law. When the 2012 elections were eventually held, David LeDoux was elected Chief, and Councillors Roy Vermette and Ronnie Ducharme were re-elected.
B. Issues
[16] The allegations surrounding the adoption of the Descent Rule and its application by the Respondent to Ms. Tanner raise the following issues:
Preliminary Issue: Does the complaint include the positions of Councillors as well as the position of Chief?
Ms. Tanner’s case of discrimination: does the Descent Rule and its application by the Nation to the Complainant, denying her the right to be a candidate for the position of Chief, constitute a prima facie case of discrimination?
Is ancestry a characteristic protected from discrimination under the CHRA?
Did Ms. Tanner suffer an adverse impact in the provision of a “service” within the meaning of section 5 of the CHRA?
Was ancestry a factor in the adverse impact?
Was the Descent Rule adopted for a purpose or goal that is rationally connected to the function of being Chief or Councillor for the Respondent?
Was the Descent Rule adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal?
Is the Descent Rule reasonably necessary to accomplish its purpose or goal, in the sense that the Respondent cannot accommodate persons who are not blood descendants of John (Falcon) Tanner without incurring undue hardship?
Bona fide justification: If the Complainant establishes a prima facie case of discrimination, has the Respondent shown that the practice has a bona fide justification?
C. Parties Submissions and Analysis
(i) Preliminary Issue: Does the complaint include the positions of Councillors as well as the position of Chief?
[17] In her complaint, the Complainant alleges that the Respondent discriminated against her when she was prevented from running for Chief of the Nation due to the fact that she was not a blood descendant of John (Falcon) Tanner, pursuant to the Descent Rule. The Respondent objects to the scope of the complaint also extending to the application of the Descent Rule to Councillors.
[18] The Respondent argues that the complaint did not include any references to the position of Councillor and that the Complainant tendered no evidence at the hearing to support the contention that she had applied to be a candidate for Councillor, or that she was denied such an opportunity on the basis of the Descent Rule. The present matter should, according to the Respondent, be limited to the allegation that the Complainant was prohibited from running for the position of Chief of the Nation.
[19] Despite the Respondent’s submissions on this point, there does not appear to be any real contention with regard to the scope of the complaint. The Commission made no submissions in this regard and the Respondent is correct in stating that no evidence was tendered to support the assertion that the Complainant was denied from running for the position of Councillor due to the application of the Descent Rule. In fact, the Complainant does not even make such an allegation. At paragraph 36 of her Statement of Particulars, the Complainant discusses when she alleges that the Descent Rule was enforced against her:
On February 29th, 2012, the Complainant was nominated to run for Chief. It was after she was nominated that she was told that she did not qualify to run for elected office because she was not a blood descendant of John Falcon Tanner. This was the first that the Complainant had heard that she was disqualified from running.
[Emphasis mine]
[20] Any references to the position of Councillor by either the Commission or the Complainant appear in the context of the wording of the Descent Rule which suggests that it would apply to anyone who is not a blood descendant of John (Falcon) Tanner and seeks to run for Chief or for Councillor. The Complainant and the Commission have, in this regard, led evidence to suggest that the rule has not, in the past, been applied consistently as there are allegedly former Councillors, including the Complainant, who were allowed to run despite the fact that they were not blood descendants of John (Falcon) Tanner. This argument is one which seeks to challenge the validity of the Descent Rule, and it is open to the Commission and the Complainant to make it. This does not, in my view, affect or alter the scope of the Complaint which pertains to the Respondent’s application of the Descent Rule to the Complainant when she sought to run for Chief in the 2012 elections.
(ii) Ms. Tanner’s case of discrimination: Does the Descent Rule and its application by the Nation to the Complainant, denying her the right to be a candidate for the position of Chief, constitute a prima facie case of discrimination?
[21] The onus is on the Complainant to establish a prima facie case of discrimination. For this, the Complainant must advance a case which, if believed, is sufficient and complete enough to justify a decision in her favour in the absence of an answer by the Respondent (see Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 [O’Malley]. More precisely, and in the context of this case, Ms. Tanner must demonstrate that ancestry is a characteristic protected from discrimination under the CHRA; that the Nation adversely differentiated against her in the provision of a service; and, that her ancestry was a factor in her being adversely differentiated against in the provision of the service (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33).
[22] For reasons detailed in the following pages, I find the Complainant has made out a prima facie case of discrimination.
Is ancestry a characteristic protected from discrimination under the CHRA?
[23] The Descent Rule distinguishes between individuals on the basis of their blood relation to John (Falcon) Tanner. The parties have qualified this distinction as one which is founded on a “descent line” or “ancestry”. Neither “descent line” nor “ancestry” is specifically listed as a prohibited ground of discrimination under section 3 of the CHRA. The resulting question is whether “ancestry” or “descent line” can be said to fall under one of the existing prohibited grounds of discrimination?
[24] The Commission’s position, also adopted by the Complainant, can be summarized in the following manner: since the grounds of “race”, “national or ethnic origin” and “family status” are not defined by the CHRA, a broad and liberal interpretation of the CHRA, as mandated by the Supreme Court in decisions like Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321and Insurance Corp. Of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, supports the inclusion of ancestry. The courts have shown a strong desire for uniformity across Canadian human rights statutes and several provincial human rights statutes have included ancestry as one of their prohibited grounds of discrimination. The Commission relies on the Supreme Court’s decision in University of British Columbia v. Berg, [1993] 2 SCR 353 [Berg] wherein the Court states at para. 372:
If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.
[25] The Commission argues that interpreting the CHRA in a manner that excludes ancestry from the grounds of discrimination would lead to situations where an individual could be discriminated against on the basis of ancestry in some jurisdictions but not in others, and runs contrary to the objectives of the Act.
[26] The Respondent, for its part, submits the requirement that a Chief be a blood descendant of John (Falcon) Tanner falls squarely within definition of ancestry, which the Merriam-Webster Dictionary defines as “line of descent”. Numerous provinces have, however, explicitly included ancestry as a ground in their respective human rights legislation. The Respondent argues that this suggests that ancestry is, in fact, distinguishable from the grounds of race, national or ethnic origin, as well as family status. To interpret section 3 so broadly as to encompass ancestry would not only trivialize these prohibited grounds, but would also be inconsistent with human rights legislation across the country. A purposive approach to interpreting human rights legislation cannot, according to the Respondent, go so far as to allow reading into the CHRA a ground that does not exist.
[27] In essence, the Respondent argues that ancestry falls within the exception to the purposive interpretive approach described in Berg, namely that this choice of wording clearly evinces a different purpose on behalf of the provincial legislatures that have adopted this ground. Therefore, to include ancestry in the CHRA, which has not adopted this ground, would amount to circumventing Parliament’s intent.
[28] As the parties have highlighted in their submissions, the issue which I must now address is whether ancestry, as it exists as a separate ground in provincial human rights legislation (see for example the Alberta Human Rights Act, 2000 c A-25.5, the Saskatchewan Human Rights Code, RRS c S-24.1, the Ontario Human Rights Code, RSO 1990, c H.19 the New Brunswick Human Rights Act, RSNB 2011, c.171 and the British Columbia Human Rights Code, RSBC 1996, c. 210), is nevertheless protected by the grounds of race, national or ethnic origin, and/or family status under to the CHRA. In other words, can ancestry or line of descent, be considered to fall within their ambit? For reasons that follow, I answer this question in the affirmative.
[29] A number of legal instruments expressly link the notion of ancestry with that of race. In certain provincial human rights statutes where ancestry is explicitly mentioned, it can be found alongside the grounds of race and colour. Section 9(2) of the Manitoba Human Rights Code, which lists the prohibited grounds, includes at paragraph (a): “ancestry, including colour and perceived race”. Section 7(a) of the Yukon Human Rights Act is also drafted in an identical fashion. At the international level, the International Convention on the Elimination of all Forms of Racial Discrimination, 660 U.N.T.S. 195, adopted by the United Nations in 1965 and ratified by Canada in 1970, includes “descent” as part of the definition of “racial discrimination”. It defines this type of discrimination as:
a “distinction, exclusion, restriction or preference” which is “based on race, colour, descent, or national or ethnic origin” and “which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms”.
[Emphasis mine]
[30] In light of Canada’s adhesion to this Convention, Canadian human rights statutes should be interpreted as possessing a similar scope (see Walter S. Tarnopolsky, Discrimination and the Law (Toronto: Thomson Reuters, 2004) at 5-9) and militates against the fragmented approach to interpreting ancestry proposed by the Respondent in this case.
[31] Ancestry is also linked to ethnic origin. The meaning of the phrase “ethnic group” was discussed by the House of Lords in Mandla v. Dowell Lee, (1993) 1 All E.R. 1062 [Mandla]. In that case, the House of Lords found that one of the essential characteristics that a group must possess to constitute an “ethnic group”, for the purposes of the legislation at issue in that case, was “either a common geographic origin or descent from a small number of common ancestors”. This Tribunal relied on Mandla and its definition of “ethnic group” in Rivers v. Squamish Indian Band Council, 1994 CanLII 1217 (CHRT) [Rivers], when it came to the conclusion that being of Gitksan or Squamish birth could be regarded as possessing different ethnic or national origins. As such, in my view, ancestry also forms a part of ethnicity.
[32] Finally, ancestry has also been considered to fall within the ambit of the ground of family status. As noted by the Commission, the Tribunal has already recognized that ancestry is included in the ground of family status in Schaap v. Canadian Armed Forces, 1988 CanLII 4504 (CHRT) [Schaap], rev'd on other grounds (1988), 56 D.L.R. (4th) 105 (Fed. C.A.) (see also Rivers at pp.40-41).
[33] In Schaap at pages 26-27, the Tribunal relied on Professor Tarnopolsky’s analysis of the ground of family status, finding that
The natural and ordinary meaning of the word "family status" I believe would include the inter- relationship that arises from bonds of marriage, consanguinity, legal adoption and including to use the words of Professor Tarnopolsky, the ancestoral relationship whether legitimate, illegitimate or by adoption as well as the relationships between spouses, siblings, in- laws, uncles or aunts and nephews or nieces, cousins, etc. I have not found any authority which would extend the meaning of "family" beyond the above described types of relationships.
[34] The Respondent draws this Tribunal’s attention to the last sentence of this quotation. The Respondent argues that the term “ancestoral relationship”, as referred to by the Tribunal in this decision, is limited to the relationships between “spouses, siblings, in-laws, uncles or aunts and nephews or nieces, cousins, etc.” and does not extend to an ancestor who died approximately 170 years ago.
[35] With respect, I cannot agree with this interpretation. Indeed, a plain reading of the definition supports a different conclusion. The use of the words “as well as”, in between “the ancestoral relationship whether legitimate, illegitimate or by adoption” and the enumerated relationships that follow clearly indicates that “ancestoral relationship” is to be considered in addition to the other enumerated relationships and is not limited by them. Moreover, the use of the term “etc.” at the end of the enumerated relationships indicates that this list is not exhaustive.
[36] The Federal Court of Appeal also recognized that family status could include ancestral relationships in Canada (Attorney General) v. Mossop, [1991] 1 F.C. 18 (Fed. C.A.); aff'd [1993] 1 S.C.R. 554. In this decision, Stone J.A. examined the legislative history of the amendment adding "family status" as a prohibited ground of discrimination to the CHRA and stated:
In testifying before a Standing Committee of the House of Commons which was studying the proposed change, the then Minister of Justice pointed to the above-noted mischief and added the following with respect to the "family status" concept proposed for adoption:
…this concept prohibits discrimination on the basis of relationships arising from marriage, consanguinity or legal adoption. It could include ancestral relationships, whether legitimate, illegitimate or by adoption, as well as relationships between spouses, siblings, in-laws, uncles or aunts, nephews or nieces, cousins, etc. It will be up to the Commission, the Tribunal appoints, and in the final cases, the courts, to ascertain in a given case the meaning to be given to these concepts. [Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Issue No. 114, at page 17. (Appeal Book, Volume 3, at page 326]
In my view, this evidence furnishes a strong indication that it was the intention of Parliament to limit the new prohibited ground of discrimination in a way which did not include discrimination based on sexual orientation.
[Emphasis mine]
[37] What these cases and laws demonstrate is that ancestry, while it has standing as a separate ground in several provincial human rights statues, is a concept, which can also be characterized as forming part of all three of the grounds of race, national or ethnic origin, and family status. In light of this, I find ancestry, whether framed in terms of racial ancestry, national or ethnic ancestry, or family ancestry, is a characteristic protected from discrimination under the CHRA.
[38] In the circumstances of this case, the Nation submits racial ancestry and national or ethnic ancestry are not at issue. Instead, it submits the Descent Rule is focused on whether or not an individual has the specific ancestry of John (Falcon) Tanner. While the Commission argued John (Falcon) Tanner was a White man and, therefore, the Descent Rule creates a distinction based on race, no further evidence or argument was lead to suggest Ms. Tanner is of a different race, nationality or ethnicity from John (Falcon) Tanner. Indeed, race and ethnicity can be, from an anthropological, archaeological and ethnological perspective, complex issues to determine without specific expertise (see for example Rivers).
[39] In my view, the context of this case most appropriately fits under the ground of family status. That is, as the Nation argues, the Descent Rule is aimed at the specific identity of a family member/ancestor. The wording of the Descent Rule itself even refers to a “family tree”. As the ground of family status encompasses complaints based on the particular identity of a family member (see B. v. Ontario (Human Rights Commission), 2002 SCC 66 at paras. 39-41), I believe this matter should be analyzed as a family status complaint.
Did Ms. Tanner suffer an adverse impact in the provision of a “service” within the meaning of section 5 of the CHRA?
[40] Section 5 of the CHRA prohibits discrimination in the provision of goods, services, facilities or accommodation customarily available to the public:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
[41] There is no dispute that Ms. Tanner was adversely impacted by the application of the Descent Rule found in the Election Law. The Descent Rule disqualified her from being able to pursue a position with the Nation’s government. The question is whether the creation and application of the Descent Rule/Election Law is a “service” within the meaning of section 5 of the CHRA.
[42] As defined in Canada (Attorney General) v. Watkin, 2008 FCA 170 [Watkin], a “service”, pursuant to section 5 of the CHRA, is “…something of benefit being “held out” as services and “offered” to the public…” and which are the result of a process taking place “…in the context of a public relationship…” (Watkin at para. 31).
[43] According to the Commission, in determining whether a nominee is eligible to run for the position of Chief or Councillor, through the creation and application of the Election Law, and through the decision-making of its Chief Electoral Officer, the Nation was providing a “service” within the meaning of section 5 of the CHRA. The Commission submits the approval of the Chief Electoral Officer confers the benefit of being able to pursue a position that will allow a candidate to contribute to the good governance of their community and which provides a source of income. In addition, the Commission submits that election processes form a critical part of the public relationship between governments and the community that is to be governed.
[44] The Respondent did not provide submissions on this issue or respond to the Commission’s arguments.
[45] In my view, a legitimate question could be raised about whether the creation and application of the Election Law is a “service” (see Matson et al. v. Indian and Northern Affairs Canada, 2013 CHRT 13; and, Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21, aff’d 2015 FC 398). However, the Respondent did not provide submissions on this issue. Therefore, I have no argument or evidence that contradicts the Commission’s submissions. As a result, for the purposes of this decision, I accept the position of the Commission that the Nation was engaged in the provision of a service in its creation and application of the Election Law and, specifically, the Descent Rule.
Was ancestry a factor in the adverse impact?
[46] Seeing as Ms. Tanner was excluded from running for Chief on the sole basis of the application of the Descent Rule – a rule which differentiates on the basis of ancestry, which I have found to be a protected characteristic under the CHRA – I find ancestry was a factor in Ms. Tanner’s adverse treatment. As a result, I find Ms. Tanner has established a prima facie case of discrimination, pursuant to section 5 of the CHRA.
(iii) Bona fide justification: if the Complainant has demonstrated a prima facie case of discrimination, has the Respondent shown that the practice has a bona fide justification?
[47] Having determined that the Complainant has demonstrated a prima facie case of discrimination, the analysis now turns to the Respondent’s case. In response to the prima facie case, the Respondent can avoid an adverse finding by calling evidence to show its actions were not discriminatory; and/or, by establishing a statutory defence that justifies the discrimination. In this case, pursuant to section 15(1)(g) of the CHRA, the Respondent advances that there exists a bona fide justification for the creation and application of the Descent Rule. To establish this bona fide justification, the Respondent must establish that:
(1) it adopted the Descent Rule for a purpose or goal that is rationally connected to the function of being Chief or Councillor;
(2) it adopted the Descent Rule in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and,
(3) the Descent Rule is reasonably necessary to accomplish its purpose or goal, in the sense that the Respondent cannot accommodate persons who are not blood descendants of John (Falcon) Tanner without incurring undue hardship.
(see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 at paras. 54-68; and, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at paras. 20-22)
Was the Descent Rule adopted for a purpose or goal that is rationally connected to the function of being Chief or Councillor?
[48] The Respondent submits that introducing the Election Law is rationally connected to the governance of Gambler First Nation. Eugene Tanner, a member of the Nation, and Larry Catagas both testified that Indian and Northern Affairs Canada (“INAC”) specifically recommended that the First Nation enact an election law, along with a constitution and membership code.
[49] According to the Commission, the Respondent’s submissions do not explain how the Descent Rule is rationally connected to good governance. Ms. Tanner and other non-blood descendants have been elected as Councillors and contributed to the good governance of the First Nation.
[50] In general, I agree with the Respondent that adopting an Election Law, along with a constitution and membership code, is rationally connected to the good governance of the Nation. However, the general provisions of the Election Law are not the focus of this complaint. Rather, it is the specific requirement of the Descent Rule that is at issue in this matter. In this regard, insufficient evidence was presented to support the assertion that being a blood descendant of John (Falcon) Tanner contributes to the good governance of the Nation. While the Nation has a unique historical connection to John (Falcon) Tanner, which is discussed in more detail later in this decision, I do not find there to be a connection between this history and the “good” governance of the Nation. In fact, as the Commission pointed out, Ms. Tanner and other non-blood descendants have been elected as Councillors and have contributed to the governance of Gambler First Nation.
[51] As a result, I find the Descent Rule is not rationally connected to the function of being Chief or Councillor of the Nation and, therefore, cannot be bona fide justified. While this finding alone substantiates the complaint, I will nonetheless address the remainder of the Respondent’s arguments.
Was the Descent Rule adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal?
[52] The Respondent submits the Election Law was adopted in good faith. It was voted on by the membership of Gambler First Nation in a referendum and approved by a simple majority. On the other hand, the Complainant and Commission submit the Descent Rule was adopted as a means of specifically excluding Ms. Tanner from the First Nation’s governance.
[53] The facts surrounding the development and adoption of the Election Law are disputed and were difficult to ascertain. Witnesses provided contradictory testimonies, and some appeared tainted by underlying tensions stemming from past feuds. Others, like Albert Tanner, the only elder called to testify, were in visibly poor mental health. Much of the documentary evidence was also generally unreliable.
[54] This being said, I found Ms. Tanner was overall a credible witness. She was forthcoming in giving her evidence and did not seem to embellish or appear vindictive. I found her testimony, along with most of the evidence provided by Larry Catagas, the Receiving Officer for the 2007 referendum, the most helpful in ascertaining the facts surrounding the Nation's decision to implement a blood descendancy requirement for the positions of Chief and Council. I note that while I found that Mr. Catagas was an impartial and overall a credible witness, parts of his testimony contradicted his affidavit dated November 5, 2010, three years after the Referendum vote (Exhibit C1, Tab 1), which described the events surrounding the Referendum. The confusion resulting from these contradictions led the parties to inquire into Mr. Catagas’ health. He revealed that he had suffered two strokes and two heart attacks in the last four years and had suffered memory loss as a result. As highlighted below, I have awarded little weight to these portions of his evidence.
[55] For reasons that follow, I have concluded that the Respondent did not adopt the Descent Rule in good faith.
2007 Referendum
[56] Mr. Catagas testified that he was retained by the Chief and Council of the Respondent, then composed of Gordon LeDoux, Ron Vermette and Ronnie Ducharme, in late 2006 and given the mandate to develop the Nation’s Membership law, Constitution and the Election Law, as well as act as the Returning Officer for the referendum process which would determine their adoption by the membership. Mr. Catagas stated that he started with a generic set of laws, and then received feedback from the Nation to adapt the content to its needs. Mr. Catagas testified that he organized three or four public consultations with the Band membership during which they discussed, among other items, the Election Law. Sharon and Charlene Tanner both testified that they had no knowledge that these consultations had taken place.
[57] With regard to the Referendum, Mr. Catagas testified that he obtained the list of voting members of Gambler First Nation from INAC and modified the list with the input from the members to determine the eligible voters. Once the final list was prepared, Mr. Catagas mailed the election packages, which included the election ballots, via priority post to the members of the Nation who did not live in the community. Members living in the community were notified of the Referendum by a notice, which was mailed to all whose addresses were known by the Band, and posted in key locations in the community, namely at the Band Office, the Band Hall and at the Health Centre. Members who informed Mr. Catagas that they would not be available on the day of the referendum were provided with election packages for advance voting and could mail their ballot. Return ballots were mailed to Mr. Catagas directly and placed in a locked location.
[58] Sharon and Charlene Tanner both testified that they never saw or received a notice informing them of the Referendum. Sharon Tanner stated that she learned that the Referendum had occurred through speaking with members of the community, many of whom were not happy as they had not known that it was taking place. Mr. Catagas also testified that some members called to tell him that they had not received their Referendum packages. He conceded that since he had not sent the packages by registered mail or courier, there had been no way of tracking those who had and had not received the packages. Mr. Catagas could not recall how many Referendum packages were mailed, or how many were returned. He testified that he believed that there were approximately 75 Band members living outside the community. Mr. Catagas recognized that according to Exhibit R-1, Tab 2, a copy of the voter’s list that appeared to have been used by an individual seated with Mr. Catagas on the day of the Referendum, 32 ballots were mailed in. Eugene Tanner testified that he believed approximately 90 packages were mailed out and that approximately 60 of them were returned.
[59] On May 17, 2007, the day of the Referendum, Mr. Catagas counted the ballots himself, in the presence of other individuals, including Eugene Tanner. Mr. Catagas used the final voter’s list he had prepared and tracked the individuals who voted by crossing out their names. According to the voter’s list found at Exhibit R-1, Tab 2, out of the 124 eligible voters that were identified at the time of the Referendum, 32 people mailed in their ballots, and 19 people voted in person, for a total of 51 participating voters. Out of these, 29 voted in favour of the Election Law; and 20 voted against it.
[60] According to this voter’s list, it would appear that all three documents, the Membership Law, the Constitution and the Election Law, passed with a simple majority, which the Election Law defines as “50 percent plus one of those that participate in a vote”. Mr. Catagas testified that the Election Law only required a simple majority vote as a double majority is very difficult to attain due to the challenges associated with getting enough eligible voters to participate: “otherwise, you’d be continuing to do that over and over again without ever getting to the point of rejecting or accepting a certain document”: Transcript at p. 594. Mr. Catagas stated that in his experience conducting elections for First Nations, there would usually be a simple majority vote.
[61] Mr. Catagas stated that the voter’s list at Exhibit R-1, Tab 2 confused him and that he did not recognize this document. He confirmed that it was not the official tracking list. Contrary to what Exhibit R-1, Tab 2 indicates, Mr. Catagas recalled that only the Election Law passed at this referendum. He testified that in li