Felix v. Sturgeon Lake First Nation

Felix v. Sturgeon Lake First Nation
Court (s) Database
Federal Court Decisions
Date
2014-09-23
Neutral citation
2014 FC 911
File numbers
T-927-13
Decision Content
Date: 20140923
Docket: T-927-13
Citation: 2014 FC 911
Ottawa, Ontario, September 23, 2014
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
HENRY J. FELIX SR. and GARRY DANIELS, GERTRUDE FELIX, GARRY WICHIHIN, RAMONA FELIX COOK, DAVID BADGER (THE STURGEON LAKE FIRST NATION “WORKING GROUP”)
Applicants
and
THE STURGEON LAKE FIRST NATION, (“THE BAND”) and THE STURGEON LAKE FIRST NATION BAND COUNCIL
currently represented by
CHIEF CRAIG BIGHEAD, COUNCILORS WESLEY BALLANTYNE, MICHA DANIELS, DONNA KINGFISHER, DANNY MOOSEHUNTER, ANITA PARENTEAU, JONAS SANDERSON (“BAND COUNCIL”) and GARRY TURNER, DARWIN NAYTOWHOW
(“ELECTION OFFICIALS”) and
CRAIG BIGHEAD, SOLOMON SANDERSON, KENNETH BARRY KINGFISHER (“CANDIDATES FOR CHIEF”) and
GABRIEL FELIX, ALLEN JOE FELIX
(“ELECTION APPELLANTS”)
Respondents
JUDGMENT AND REASONS
[1] The applicants seek judicial review of the decision of the Sturgeon Lake First Nation Appeal Tribunal (Appeal Tribunal) made on or around May 2, 2013. The Appeal Tribunal dismissed the applicants’ appeal which challenged the disqualification of Mr Felix as a candidate for Chief and the outcome of the Band Council election held on March 27, 2013. For the reasons that follow, the application is allowed.
Background [2] The current application for judicial review arises in the context of several years of tension within the community regarding the electoral process and the results of the Band Council elections in 2010 and 2013. To provide the necessary context, a detailed chronology of events is set out in Annex A.
[3] Justice Bédard provided a summary of relevant events up to the 2010 election in Felix Sr v Sturgeon Lake First Nation, 2011 FC 1139, 398 FTR 88 (Felix #1).
[4] The history was also summarised by Justice Snider in Felix v Sturgeon Lake First Nation, 2013 FC 310 (Felix #2) dismissing the applicant’s, Henry Felix Sr’s, motion for contempt and ordering costs against him.
[5] At its simplest, the troubled history is as follows. Henry Felix was a candidate for Chief in 2010. This was the first election held under the Sturgeon Lake First Nations Election Act, 2009 [Election Act]. He lost the election by two votes following a recount. Mr Felix appealed to the Appeal Tribunal. The Appeal Tribunal made a preliminary ruling and dismissed the appeal. In Felix #1, Justice Bédard found that the Appeal Tribunal had breached principles of procedural fairness, including by relying on extrinsic evidence, and allowed the application for judicial review. The Appeal Tribunal was directed to recommence the appeal at the hearing stage (which is the second step following a preliminary ruling and permits the parties to be heard) and ensure that the hearing be held in accordance with the Election Act and in fairness to all parties. Justice Bédard also cautioned that the Appeal Tribunal should not participate in any decisions that could later be disputed in the context of an appeal.
[6] The Appeal Tribunal recommenced, held three days of hearing, and dismissed the appeal.
[7] Mr Felix did not seek judicial review of the second dismissal of his appeal. However, he brought a motion for contempt against the Band (Sturgeon Lake First Nation) alleging that the re-hearing by the Appeal Tribunal was not held in accordance with the judgment of Justice Bédard in Felix #1. The motion was dismissed by Justice Snider in Felix #2 who noted, among other concerns, that an application for judicial review would have been the appropriate remedy for the applicant to have pursued.
[8] Justice Snider found that the litigation was unnecessary and “was taken through fundamental lack of understanding of the law of contempt” and dismissed the motion, awarding elevated costs against Mr Felix. Justice Snider issued the Order on March 26, 2013.
[9] March 27, 2013 was the date of the second election for Chief and Council members held under the Act. Mr Felix was again a candidate for Chief. The nominations had closed on March 20, 2013 and advance polls had taken place on March 25 and 26.
[10] On the date of the election, a notice was posted by the Chief Electoral Officer [“CEO”] at the polling station around mid-day indicating that Mr Felix owed the Band money arising from the cost order in Felix #2 and that he was, therefore, disqualified from being a candidate in the election.
[11] Voting continued and when the ballots were counted, Mr Felix had 325 votes placing him in the majority. However, all the ballots cast for Mr Felix were later placed in an envelope and marked as disqualified.
[12] The Appeal Tribunal observed the Nomination meeting, the Advance Polls and the Poll. The Appeal Tribunal was present at the polling place on March 27, 2013 at the time the Band Administrator delivered the notice, referred to as the “Statement of Fact”, along with the Order issued by Justice Snider. The CEO then posted the notice indicating that Mr Felix owed money due to Justice Snider’s Order which imposed costs against Mr Felix payable to the Band and others and that he was no longer eligible to be a candidate.
[13] Mr Felix and the co-applicants, the Working Group, launched an appeal of the election results alleging that errors were made in the interpretation or application of the Election Act and that corrupt practices were engaged in by the Electoral Officers [“EO”] in contravention of the Act. Mr Felix set out nine grounds for his appeal including that he did not owe money to the Band at the relevant time in accordance with the Act.
[14] The Appeal Tribunal issued a preliminary ruling on April 12, 2013 dismissing the appeals, but, as a “courtesy,” held a hearing to permit the appellants to state their position. There is some uncertainty on the record whether the Appeal Tribunal actually considered the appeal by Mr Felix or found him to be without any standing because of his disqualification, and considered only the appeal of the co-appellants Working Group, which raised the same allegations. The hearing was held on April 29 and 30, 2013. The Appeal Tribunal issued its decision on May 2, 2013 and upheld the decision of the EO to disqualify Mr Felix.
[15] The Appeal Tribunal decided to call a by-election for the position of Chief. Mr Felix remained disqualified as a candidate in the by-election because he owed money to the Band as a result of Justice Snider’s Order. The by-election was held on May 29, 2013 with advance polls on May 27 and 28. Craig Bighead was elected Chief.
[16] On May 23, 2013 Mr Felix filed this application for Judicial Review of the decision of the Appeal Tribunal which dismissed his appeal.
[17] Mr Felix’s application for an injunction to stay the by-election was denied by Justice Roy on May 29, 2013.
[18] Mr Felix’s appeal of Justice Snider’s decision in Felix #2, which dismissed his contempt motion and ordered costs against him, remains pending a hearing in the Federal Court of Appeal.
The Decision under Review [19] The decision of the Appeal Tribunal is a one page, point form document that sets out the facts very briefly, notes the basis for the appeal pursuant to section 12.1 of the Act and notes its Analysis and Decision.
[20] The Analysis part states:
1. 5.1(b)(VII) Owing money to Sturgeon Lake First Nation by Federal Court Order
2. 12.1(a) We do not believe Error or Violation of the Election Act was made in the interpretation or application of the Act
3. 12.1(b) Yes we do believe the Candidate Henry Felix who ran in the Election was ineligible to do so pursuant to the Sturgeon Lake Election Act 2009.
[21] The Decision states:
Uphold Chief Electoral Officer decision to disqualify Henry Felix as pursuant to Madam Justice Snider Federal Court Ruling that states Henry Felix owes money to Sturgeon Lake First Nation and as per Sturgeon Lake Election Act, Section 12.8( c) “There shall be no new or additional nominations beyond the slate that ran in the Election or By-election that is the subject of Appeal but no candidates shall be required to let his or her name stand in the new Election or By-election” for the position of Chief on the following dates: […]
[22] The decision then goes on to indicate that advance polls would take place on May 27 and 28 and the election on May 29, 2013.
[23] The Appeal Tribunal’s Preliminary Ruling on April 12, 2013 stated:
• With respect to the appeal by Henry Felix:
Set aside due to disqualification as per Federal Court Order and Election Act.
• With respect to the appeals by the WG:
Response: We believe that the CEO conducted his duties in accordance with the Sturgeon Lake Election Act. We deem that these appeals were not against a specific person or corrupt practice but rather complaints against the Sturgeon Lake Act. A person cannot appeal the act there is a process to amend the act Sec. 16. No one can change the act in the middle of an election.
[24] And at the end states:
Though we made a preliminary ruling to dismiss these appeals the coappellants were given the courtesy to come and voice their complaints at the April 29th & 30th , 2013 Appeal Hearing.
[25] The Notice Posted at the Election Polling Place on March 27, 2013 (referred to as the Statement of Fact) states:
TAKE NOTICE:
IN THE MATTER OF
HENRY J FELIX SR. vs THE STURGEON LAKE FIRST NATION
Pursuant to a Federal Court Order issued March 26, 2013 by the Honourable Madam Justice J. Snider:
HENRY J FELIX, SR. owes the Sturgeon Lake First Nation costs for his contempt motion against the Appeal Tribunal, members of the Band Council and the three lawyers who acted as legal advisors.
AS A CONSEQUENCE, HENRY J FELIX, SR. IS NO LONGER ELIGIBLE TO BE A CANDIDATE IN THE 2013 ELECTION.
Copies of the Judgment will be available at the Band Office next week.
The legislation The Sturgeon Lake First Nation Election Act, 2009 [26] The Sturgeon Lake First Nation Election Act, 2009 governs the process of the election from the time of choosing the Electoral Officers to the completion of any appeal period. It sets out, among other things, the criteria for candidates, the role and responsibilities of the Electoral Officers, the composition of the Appeal Tribunal and the process for an appeal.
The Executive Act [27] The Executive Act sets out the roles, responsibilities and authority of the Chief and Council. It also provides for the Elders Executive Advisory Council (“Elders EAC”) which may carry out duties assigned to it by the Chief and Council, including providing guidance when its advice is sought (Section 8.3(a)).
[28] Section 9 sets out a Code of Ethics governing what the Chief and Council may or may not do during their terms of office. These guidelines aim to help officials be good leaders, maintain their integrity and the dignity of their office, engage in discussion and avoid conflicts of interest. The Code also outlines other ethical principles. Section 10 provides specific conflict of interest provisions. Section 11 addresses discipline. The Elders EAC can call upon the Appeal Tribunal when they have reason to believe the Chief or a Councillor has breached the code of ethics or conflict of interest guidelines, or has engaged in other illegal or immoral conduct.
[29] Section 12 provides for motions of non-confidence for a serious breach of the duties set out in the Act.
[30] Section 13 governs when an elected office is vacated; this includes conviction for an indictable offence or an offence related to trafficking of a prohibited or controlled substance, resignation, death, mental incompetence, failure to uphold the oath of office, failure to observe the band by laws, and where a person “is determined to be ineligible to hold office by virtue of this Act or any amendments thereto” (s 13.1(j)).
Overall Position of the Applicants [31] The applicants submit that the Appeal Tribunal breached its duty of procedural fairness by participating in the decision to disqualify Mr Felix on the date of the election and later determining the appeal of that same decision. The Election Act codified customary practices but says nothing about the role of the Appeal Tribunal to oversee elections. This is the role of the Chief and Deputy Electoral Officers [“DEO”]. Even if the custom is for the Appeal Tribunal to attend the election, custom cannot trump procedural fairness. The appellants submit that the Appeal Tribunal ignored the direction provided by Justice Bédard in Felix #1.
[32] The applicants ask that the Court quash the decision and substitute its own decision restoring the results of the votes in favour of Mr Felix in the 2013 election. The applicants argue that remitting the decision for reconsideration by the same Appeal Tribunal will not result in a just process or determination, given that the Appeal Tribunal ignored the direction provided by Justice Bédard in Felix #1 and that the same members would again be determining the appeal of the decision they took part in and, effectively, had predetermined. Alternatively, the applicants ask that if the decision is remitted to the Appeal Tribunal for re-determination, that clear directions be provided to them.
Overall Position of the Respondents [33] The respondents submit that the Appeal Tribunal followed the Election Act and the custom, which is that the Appeal Tribunal attend and oversee the election. The respondents argue that the Appeal Tribunal did not participate in the decision to disqualify Mr Felix on Election Day and that Mr Felix was disqualified by operation of the Election Act due to his own unsuccessful litigation which resulted in a cost order against him and owed to the Band. The respondents submit that Mr Felix brought this situation on himself. The respondents argue that the Appeal Tribunal’s attendance at the election and their later determination of the appeal does not create a reasonable apprehension of bias. The respondents highlight the importance of self-government and the efforts of the Band to reflect their custom in the Election Act, and ask the Court not to usurp the role of the Appeal Tribunal which is best placed to address this issue.
Jurisdiction and Standard of Review [34] It is well established that this Court has jurisdiction to determine this application for judicial review. The Sturgeon Lake First Nation Appeal Tribunal is a “federal board, commission or other tribunal” for the purpose of the Federal Courts Act, RSC 1985, c F-7, section 2.
[35] The application raises questions of law and of jurisdiction of the Appeal Tribunal and raises important issues of procedural fairness, all of which are reviewable on a standard of correctness.
[36] Issues of mixed fact and law are reviewable on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [“Dunsmuir”]).
The Issues [37] The issues boil down to: whether the Appeal Tribunal breached its duty of procedural fairness by its customary practice of observing and overseeing the election and its specific conduct on March 27, 2013; whether the decision of the Appeal Tribunal to uphold the decision of the CEO to disqualify Mr Felix as a candidate was reasonable; and, if the decision is set aside, what is the appropriate remedy.
[38] I have therefore regrouped the several specific issues raised by the applicants as follows:
• Did the Appeal Tribunal Breach its duty of procedural fairness?
o Did the Appeal Tribunal’s attendance at the Polling Station result in bias or a reasonable apprehension of bias in their determination of the applicants’ appeal which challenged the election process and the disqualification of Mr Felix?
o Can customary practices override or “trump” provisions of the Election Act or principles of natural justice and procedural fairness?
• Is the decision of the Appeal Tribunal reasonable?
o Did the Appeal Tribunal err in finding that a candidate can be disqualified after being accepted by the Electoral Officer and having his or her name placed on the ballot? (In other words, at what point can a candidate be disqualified? If the Election Act refers to the date of nomination, what process governs disqualification after that date or after the election has been held?)
o Did the Appeal Tribunal err in concluding that the Electoral Officers acted within their authority and jurisdiction under the Election Act by disqualifying Mr Felix and rejecting the ballots cast in his favour?
• What is the appropriate remedy?
o Does the Court have jurisdiction and is it appropriate in the circumstances for the Court to substitute its judgment for that of the Appeal Tribunal which upheld the CEO’s decision and, in turn, for that of the CEO who disqualified Mr Felix as a candidate?
Did the Appeal Tribunal Breach its duty of procedural fairness? [39] The applicants submit that the customary law whereby the Appeal Tribunal observes the election is not the critical issue. The issue is the participation of the Appeal Tribunal in the very decision that they later considered on appeal. It is this participation that creates bias or the reasonable apprehension of bias.
[40] The applicants note that in Felix #1 Justice Bédard cautioned the Appeal Tribunal regarding its custom of observation of elections and in that case the conduct of determining the place of the advance polls and assisting elderly voters was of a less serious nature. The applicants argue that the Appeal Tribunal has not heeded the direction of Justice Bédard.
[41] The applicants point to Sparvier v Cowessess Indian Band, [1993] 3 FC 142, [1994] 1 CNLR 182 42 [Sparvier] where Justice Rothstein highlighted that custom cannot be at the expense of natural justice.
[42] The Election Act was ratified in 2009 and codified the Band Custom as it relates to elections. The practice of the Appeal Tribunal to attend and oversee the election is not consistent with the Act which gives the responsibility for carriage of the election to the CEO and his designate (s 4 and 5). The Election Act provides only that the Appeal Tribunal consider appeals arising from the election.
[43] The applicants submit that if the custom is for the Appeal Tribunal to attend and observe or oversee the elections, this should be specifically included in the Election Act which is intended to be a codification of such long-standing customs.
[44] The applicants argue that not only did the very presence of the Appeal tribunal at the polling station prevent the CEO from carrying out his mandate, but the Tribunal went much farther by directing the CEO regarding the disqualification of Mr Felix.
[45] The Tribunal’s attendance and participation created a reasonable apprehension of bias and in fact predetermined the appeal by participating in the original decision.
[46] The applicants question the propriety of Appeal Tribunal members giving evidence in this judicial review regarding their own conduct.
[47] The applicants argue that if the decision is returned to the Appeal Tribunal, it cannot be trusted to make an unbiased decision.
[48] The applicants further submit that the Appeal Tribunal process which dismissed Mr Felix’s appeal at stage 1 denied him an appeal completely; his appeal was “set aside due to disqualification as per Federal Court Order and Election Act”, suggesting that the Tribunal did not address it at all.
[49] The respondents note that the 2009 Election Act followed from extensive consultations and codified custom that had evolved over 42 years and had acquired the force of law.
[50] The Election Act provides for the selection of the EO and the members of the Appeal Tribunal at the same time. The Appeal Tribunal members take an oath with respect to carrying out their duties. The Band custom is that the Tribunal will be present at all proceedings to observe the CEO and EO conduct of the proceedings. The respondents submit that there is collective acceptance of this practice.
[51] The respondents point to Justice Snider’s observation that Justice Bédard did not find that custom was precluded provided the Election Act is followed. The respondents now submit that where the Election Act is silent, custom can fill the void.
[52] The respondents acknowledge that in 2010 the Tribunal overstepped its role. The words of Justice Bédard were then carefully considered in the 2013 election and it did not participate in any decisions. The Tribunal did not publicly comment about the announcement that Mr Felix was disqualified. It did review the decision of Justice Snider and it did see the notice (Statement of Fact) that was prepared to advise voters and posted in the polling place.
[53] The respondents reiterate what had transpired on Election Day, noting that the CEO counted the ballots in plain view while the Tribunal observed. The CEO announced the results and also that Felix was disqualified. The election report was prepared. The ballots for Felix were put in one envelope with the notation that Felix was disqualified. The ballots were then sealed in the box.
[54] The respondents contend that there can be no reasonable apprehension of bias in the custom of attending and overseeing the role of the CEO and EO provided they do not participate in decisions that could later be disputed.
[55] The respondents also note the challenges of small communities where many are related and all are known to each other, and that bias must be considered with this in mind.
The Appeal Tribunal did not meet its duty of procedural fairness [56] The Election Act sets out the role of the Appeal Tribunal and it does not refer to observing or overseeing the election. It provides in section 11 that an Appeal Tribunal shall be appointed at the time the Election is called and sets out the role of the Tribunal and also the process for appeals. The following sections are specifically noted:
11.2 No one sitting on the Appeal Tribunal may participate in the Election or By-election whether as a Candidate, Nominator, Seconder or Voter.
11.3 The Appeal Tribunal shall supervise and administer all Election and By-election Appeals in accordance with this Election Act. The Appeal Tribunal may be-reconvened to deal with any disciplinary matters that arise during an Elected Official’s term of office pursuant to the terms of the Sturgeon Lake First Nation Executive Act, 2009.
11.4 It shall be the duty of the Appeal Tribunal to certify the Election or By-election results of the First Nation Council if there is an Appeal after an Election of By-election.
[Emphasis in original]
[57] I find that the Appeal Tribunal did usurp its role according to the Election Act and it also usurped its role according to the custom to observe and oversee the election. The Tribunal did participate in the decision to disqualify Mr Felix as a candidate in the election. The evidence does not support the respondent’s position that the Appeal Tribunal merely attended and observed. The affidavits of the Appeal Tribunal Members do not indicate what the involvement of the Tribunal was in the posting of the notice of disqualification or the later rejection of ballots cast for Mr Felix, but their cross-examinations are more candid.
[58] Mr McLeod, an Appeal Tribunal Member, stated that Band custom is that the Appeal Tribunal oversee and observe the election. Irene Ermine, an Appeal Tribunal member, also indicated at Q 350 that it has always been the practice for the Appeal Tribunal to “go with the election to -- to -- observe”.
[59] When asked what “oversee” meant, Mr McLeod responded at Q 57 that it was to ensure “it runs right”. In response to what he would do if it were not running right, he gave the example of directing the polling clerk to assist a handicapped person.
[60] At Q 64-93, he responded to questions about what transpired when the Band administrator delivered the Statement of Fact. He indicated that he made inquiries to the CEO about what the document was. The CEO and EO read the documents and closed the doors to the poll for about five minutes while a quick meeting was held. At Q 90 he indicated that he was at that meeting along with other members of the Appeal Tribunal and the CEO and other EO and “I was listening to the evidence --”.
[61] When questioned about the Appeal Tribunal’s preliminary ruling, at Q 201 he agreed that Mr Felix’s appeal was not considered at all, it was set aside, “due to disqualification”. Mr McLeod indicated that the other appeals were considered and also dismissed.
[62] Mr Gary Turner, the CEO, was asked what he did about the Statement of Fact that was delivered and responded at Q 58, that “we” had a group discussion about the ruling and that this group included the DEO and the Tribunal members.
[63] When asked what the Tribunal members did, he indicated at Q 81, “Well, I -- well, I -- I -- I read that statement of fact to them and I asked them, and their decision was that -- to go ahead with the -- with the polls but that to let the people know that Henry was ineligible for a -- as a candidate.” At Q 83, he indicated that Tribunal member Jeff McLeod made the decision/statement.
[64] At Q 122 he acknowledged that he posted the Statement of Fact in the polling station, but that he read the decision of Justice Snider later.
[65] When asked about why Mr Felix was not a candidate for the by-election, he indicated at Q 255 that he was removed as a candidate by the Appeal Tribunal.
[66] At Q 338-340 he indicated that based on information he received from the Band administrator, the Appeal Tribunal told him that Felix was ineligible.
[67] This testimony establishes that the Appeal Tribunal played a more active role in the disqualification of Mr Felix than simply observing or overseeing the role of the Chief Electoral Officer. It appears that the Tribunal read the decision of Justice Snider and the notice prepared by the Band Administrator, met and discussed the notice with the CEO and EO, and collaborated in the decision to post the notice, let the election continue and later disqualify all ballots cast for Mr Felix.
[68] This participation clearly overstepped the customary role of the Tribunal described as observing and overseeing the elections. The respondent was not able to answer what “overseeing” generally entails. I would suggest that if the accepted custom is that the Appeal Tribunal has any role in overseeing an election, they will put themselves in the same “delicate” situation noted by Justice Bédard, as they could be called upon later to determine an appeal on a wide range of election irregularities that they oversaw.
[69] Even the silence of the Appeal Tribunal – if the facts supported that the Tribunal had been silent – could be construed as participation in a decision where the Tribunal stands by and does not prevent a breach of the Election Act or breach of procedural fairness from occurring.
[70] In this case, the Appeal Tribunal considered the appeal of the very decision it had participated in to disqualify Mr Felix. There is no doubt that this created real or a reasonable apprehension of bias.
[71] The oft cited test for bias was stated in the Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369, at page 394:
As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through --conclude”. […]
[72] In this case, the informed person could reach no other conclusion than that there was a reasonable apprehension of bias.
[73] As the respondents note, in small communities, everyone knows or is related to each other, including decision makers, and it may be a challenge to avoid an apprehension of bias. However, we are not dealing with kinship and familiarity but with conduct that could be avoided by observing basic rules of procedural fairness.
[74] Justice Bédard was clear in stating her concerns about the practice of the Appeal Tribunal in Felix #1, at paras 46 to 49:
[46] At the hearing, counsel for the applicant raised other concerns about the role that the Appeal Tribunal members played in the electoral process. Notably, he raised the fact that the Appeal Tribunal members were present at the polls and witnessed facts that they later adjudicated. The Court has similar concerns.
[47] In its submission, the respondent admitted that the Appeal Tribunal members were involved in different stages of the electoral process. For example, evidence shows that the Appeal Tribunal members participated in the decision regarding the location of the advance poll in Saskatoon. The evidence also showed that the Appeal Tribunal members were present when voters were assisted by Elder/Interpreter Margaret Ermine. Both the matter of locating the advance poll in Saskatoon and the matter of Elder Margaret Ermine’s assistance were at issue in the appeal. The Appeal Tribunal members placed themselves in a very delicate situation. One cannot act as judge, witness and party. The Appeal Tribunal’s members must keep a safe distance from the electoral process in order to remain neutral and maintain the appearance of neutrality expected from them.
[…]
[49] I am also of the view that the involvement of the Appeal Tribunal members in the electoral process should be reviewed to ensure that they do not participate in making decisions that can later be disputed in the context of an appeal.
[75] Although the respondents submit that the Appeal Tribunal heeded the advice or direction of Justice Bédard, it clearly did not do so and did not appear to understand that its role in attending and observing placed it directly into the situation of participating in decisions it would later be called upon to determine on appeal. These situations cannot be anticipated and it would be wise to not observe or oversee at all, or alternatively to prescribe what that role actually is and to confine itself to it without usurping the role of the CEO.
[76] I agree with the applicants that the critical issue is not the role that custom plays in the community but the need to ensure that the custom complies with natural justice and procedural fairness. The law is well established that custom can not ignore or trump principles of natural justice or procedural fairness. In Sparvier, Justice Rothstein noted at para 47:
47 While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural justice and procedural fairness are to be applied.
[77] With respect to the applicants’ suggestion that Mr Felix’s appeal was shut down at the preliminary ruling because of his disqualification, the record is not clear that this occurred. The brief ruling does not clarify if this was a proper stage 1 ruling to dismiss the appeal due to insufficient evidence or if it was a predetermination of the issue with the subsequent hearing simply as a “courtesy” or afterthought and not a proper appeal. Given that the decision is quashed, it is not necessary to decide this, but only to caution that the preliminary ruling must be in accordance with the criteria set out in the Election Act. A preliminary ruling dismissing an appeal due to the disqualification of the appellant when it is the validity of that disqualification that is being appealed would completely deny the appellant any opportunity to appeal.
Is the decision of the Appeal Tribunal reasonable? [78] The applicants submit generally that the Election Act should be respected and followed and that there were several irregularities which demonstrate that the sanctity of the ballot box was compromised and that general principles essential for a democratic process were not observed.
[79] The applicants argue that 325 votes were cast for Mr Felix and the disqualification of these votes by the CEO after the count, and not in accordance with the procedure for marking ballots disqualified, disenfranchised 325 voters and denied Mr Felix his position as Chief. Mr Felix was qualified at the nomination meeting. The Act does not provide for reopening issues dealt with at the nomination meeting.
[80] The applicants submit that the award for costs against Mr Felix does not affect his eligibility as a candidate as that was determined on the day of his nomination. The applicants note that Mr Felix was accepted as a candidate at the date of nomination. The Election Act provides that any debt owing to the Band should be verified in accordance with the auditor’s financial statements. Those statements confirm that Mr Felix did not owe a debt to the Band at the relevant time. He argues that even if money is later owed to the Band, the ballot should still continue. There are other processes to deal with conduct of elected officials during their term of office.
[81] The applicants argue that the CEO and EO exceeded their authority and that the Appeal Tribunal erred in deciding that the CEO and EO acted within their authority and jurisdiction under the Election Act in rejecting the votes cast for him. The applicants submit that the Tribunal failed to consider the Election Act and the sanctity of the ballot box; the ballots were not rejected individually by the CEO but as a group after polls closed and the vote count clearly favoured Mr Felix.
[82] The 325 votes cast were legitimate ballots. There is no record of each ballot having been rejected as required. By March 29, the ballots had collectively been marked as rejected.
[83] The applicants point to the recent decision of the Supreme Court of Canada in Opitz v Wrzesnewskyj, 2012 SCC 55, [2012] 3 SCR 76 [Opitz] and argue that election officials should favour the inclusion, not the exclusion, of voters and candidates.
[84] The respondents submit that the Election Act together with the Executive Act provide the authority for disqualification even after the nomination is accepted. The respondents argue that the power to disqualify a candidate rests with the CEO up to date of swearing in. Thereafter the Executive Act applies and a breach of the Oath of Office can result in removal. The Executive Elders Advisory Council has the authority to discipline elected officials and address their removal for violations of the Act.
[85] The respondents argue that Mr Felix brought this situation on himself as his unsuccessful litigation frustrated his candidacy. The respondents further submit that he could have cleared his debt before the by-election but did not do so.
[86] The respondents submit that the CEO and EO made the decision based on the current information available to them on Election Day, i.e., that Mr Felix owed money to the Band.
[87] The respondents further submit that it was the intention of the community members who participated in the election reform process that the qualifications of candidates would be ongoing requirements and notes, for example, the conflict of interest and corrupt practices provisions of the Executive Act section 13(3). The respondents argue that a candidate could disqualify himself because any substantial change in the candidate’s circumstances might result in their disqualification at any stage of the proceedings up to their swearing-in and that this is what occurred in Mr Felix’s case.
The Appeal Tribunal must reconsider whether the CEO erred in disqualifying Mr Felix [88] As noted above, the Appeal Tribunal violated procedural fairness and the decision is quashed on that basis. In most cases where a decision is quashed for a breach of procedural fairness, there is no need for the Court to go on to consider the reasonableness of the decision. In this case, because the same Appeal Tribunal will be tasked with re-determination of the appeal, some further guidance regarding the issues raised concerning the reasonableness of the decision is warranted.
[89] Reasonableness, as the Supreme Court of Canada stated at para 47 of Dunsmuir, refers to “both to the process of articulating the reasons and to outcomes.” According to the Court, “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[90] It appears that no one took the responsibility for the decision to disqualify Mr Felix and that there was a great deal of confusion about who should determine the issue and how. The CEO is responsible for determining the qualifications of candidates in accordance with the Election Act. As found above, the Appeal Tribunal played a role in that decision and overstepped their authority in doing so.
[91] Some appear to think it was an automatic disqualification due to the Election Act, but that is not the case and it appears that no one carefully read the Election Act or the decision of Justice Snider before posting the notice.
[92] The testimony of the CEO and Appeal Tribunal members demonstrates this confusion.
[93] Gary Turner, the CEO, acknowledged that he posted the Statement of Fact in the polling station, but that he read the decision of Justice Snider later. He also indicated that it was Jeff McLeod who made the decision to disqualify Mr Felix.
[94] When Mr Turner was questioned about who in fact disqualified Mr Felix at Q 321-336, he responded that Mr McLeod said that the Band disqualified Mr Felix because the Band made the Election Act and the Election Act speaks for the Band. In response to further questioning he indicated, “So it’s the band that disqualified Henry, not me, not you, not anybody, the band.”
[95] When asked who informed him as CEO, at Q 336 Mr Turner indicated that “They didn’t tell me. They showed me.”
[96] At Q 338-340 Mr Turner indicates that based on information he received from the Band administrator, the Appeal Tribunal told him that Mr Felix was ineligible.
[97] However, at Q 112 of Mr McLeod’s cross-examination, Mr. McLeod agrees that the money owed by Mr Felix does not reflect the provisions of the Election Act which requires the money owed to be “as evidenced by the most recent audited financial statement --”.
[98] Irene Ermine, another Appeal Tribunal member, was also questioned about the disqualification of Mr Felix. In response to Q 79 she indicated that Mr Felix was disqualified by the “Statement of Fact”. She appeared to believe that the Order of Justice Snider had indicated that Mr Felix was not eligible to be a candidate because he owed money to the Band. When questioned further, she could not point to anything in the Order of Justice Snider that indicated that Mr Felix was disqualified.
[99] At Q 365 she indicated that the Appeal Tribunal “didn’t disqualify him. It was the – the Court order – the statement of fact that we received that disqualified him.”
[100] Although the Tribunal Members and the CEO take the view that the Election Act disqualified Mr Felix, their duty is to properly interpret and apply the provisions of the Election Act. Despite Mr Turner’s opinion, the decision is attributed to him as CEO, albeit with input from the Appeal Tribunal.
[101] I do not agree with the respondents that all the requirements of candidacy are ongoing because this was the intention of the Band. If that were the intention, it should be clearly reflected in the Acts. T