McCallum v. Peter Ballantyne Cree Nation

McCallum v. Peter Ballantyne Cree Nation
Court (s) Database
Federal Court Decisions
Date
2019-07-05
Neutral citation
2019 FC 898
File numbers
T-1246-18
Decision Content
Date: 20190705
Docket: T-1246-18
Citation: 2019 FC 898
Ottawa, Ontario, July 5, 2019
PRESENT: Madam Justice Strickland
BETWEEN:
WARREN SCOTT MCCALLUM
Applicant
And
PETER BALLANTYNE CREE NATION and CLARISSE LECOQ
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of the oral decision of the Appeal Tribunal of the Peter Ballantyne Cree Nation [PBCN] rendered on May 31, 2018, which was followed by written reasons. Pursuant to s 8(e)(iii) of the Peter Ballantyne Cree Nation Election Code of 2014 [PBCN Election Code or Code], the decision upheld an appeal of the April 10, 2018 band councillor election results for the position of councillor in the Prince Albert Urban district and called for a by-election.
Background
[2] PBCN, a named respondent in this matter, is an Indian Band within the meaning of the Indian Act, RSC 1985, c I-5. PBCN’s elections are governed by the PBCN Election Code, which was effected in 2014. On April 10, 2018, PBCN held a general election for chief and for the election of councillors in each of its seven electoral districts or communities.
[3] The Applicant, Warren Scott McCallum, is a member of the PBCN and was a candidate for the position of councillor in the Prince Albert Urban district in the election held on April 10, 2018.
[4] The Respondent, Clarisse Lecoq, is a member of PBCN and was also a candidate for the position of councillor in the Prince Albert Urban district in the subject election.
[5] The Applicant obtained the majority of votes cast for the position, with the Respondent placing second, obtaining 26 fewer votes.
[6] On April 12, 2018, the Respondent filed an appeal, pursuant to s 8 of the PBCN Election Code, concerning the election of the Applicant to the position of councillor for the Prince Albert Urban district. The PBCN Appeal Tribunal, composed of three members, allowed an appeal hearing [Appeal Hearing], which was held on May 31, 2018, during which the Respondent (the appellant therein) and the Applicant were both represented by legal counsel, and both called witnesses to give evidence. The Appeal Tribunal rendered its decision orally, immediately after the Appeal Hearing, and provided written reasons on or about June 7, 2018.
Decision Under Review
[7] At the Appeal Hearing, the Respondent called six witnesses: Brian McKay, Debbie Custer, Maxine Ballantyne, Bella Ratt, Raylene Sewap, and Eric Nateweyes, in addition to testifying herself. Nine exhibits were entered during the course of their testimony. The Applicant called Randy Clarke as a witness and also testified himself. During Mr. Clarke’s testimony, one exhibit was entered into evidence. Each witness was questioned by counsel for the party tendering that witness, cross-examined by opposing counsel, and re-direct was afforded. The Appeal Tribunal also posed questions that it deemed necessary.
[8] At 9:15 p.m., the Appeal Tribunal advised that it would break to discuss the evidence to see if it could reach a decision that evening. If not, it would reconvene the hearing to advise that it would adjourn and a decision would be rendered at a later date. Upon reconvening that evening, the Appeal Tribunal advised of its decision. In its subsequent written reasons, it stated that the issue of loitering by the Applicant during the election was questionable as he had testified that he had not done so and explained his presence on election day, however, several witnesses stated that they observed him to be present at different times throughout the day. As well, loitering was not defined in the PBCN Election Code. In the result, the Appeal Tribunal found that uncertainty existed as to whether his actions constituted loitering.
[9] The Appeal Tribunal stated that it was concerned with the following issues raised by the testimony of various witnesses:
The lack of notice provided to the candidates and members of the community with respect to the change of polling station venue.
The publication of the advance polling pursuant to s 5(f)(iv) of the PBCN Election Code was not complied with. Mr. Clarke, who was the appointed Head Electoral Officer, had testified that he did not think this was necessary. However, the Appeal Tribunal found that when reading that section, it appeared that the publication should have been posted once in newspapers in Saskatoon, Prince Albert, La Ronge, Flin Flon, while other places outside of those locations are at the discretion of the Head Electoral Officer.
Not all of the candidates were notified of the change in polling station. One out of the three candidates testified that he had been contacted by Mr. Clarke with respect to the change of location.
Sample ballots were posted on the ballot box as an example for individuals who may be voting for the first time. The Appeal Tribunal wondered why the sample ballots were not put face down so that the ballots would at least be identified by colour and not be exposed to the possibility of having an X on the box (sample ballot).
The contradictory evidence regarding the number of checks of the ballot boxes and polling stations that were made by the electoral staff throughout the day.
[10] After stating its concerns, the Appeal Tribunal concluded as follows:
The Appeals Tribunal could not conclude that any of the candidates in the 2018 PBCN Urban Election did anything wrong during the election. The Appeals Tribunal are concerned about the conduct and election procedures of the election staff, before, during and after the Advance Poll and General Election days; their actions or inactions could have materially affected the outcome of the election.
The Appeals Tribunal believes the PBCN Election Code of 2014 is vague and needs much work, particularly the Appeal Tribunal section, in that it is inadequate and does not provide the Appeal Tribunal a remedy to this particular situation. Accordingly, at this point, the only recommendation that they have is to re-run the election, but that is not an option within the Code.
Lastly, to have faith that the election is run fairly and without prejudice or compromise to any of the candidates, a new panel of election staff should be hired to run the Urban election.
The Appeals Tribunal wished to recommend that all employees working the election should confirm that they received a handbook at the beginning of their duties, review it and confirm they understood it. The Head Electoral Officer should meet with all candidates to explain the rules about the code. Any accusations made by an appellant with respect to a candidate should have all of the named parties listed. The issue of loitering should be defined within the code.
In general, the Appeals Tribunal found that the lack of adherence to the election procedures set out in the PBCN 2014 Code and the close call and difference of 26 votes between Ms. Lecoq and Mr. McCallum could have affected the outcome of the election and concluded that s 8 e) iii) had [sic] was the most appropriate avenue to remedy the issue.
Issues and standard of review
[11] The Applicant submits that the appeal process conducted by the Appeal Tribunal breached procedural fairness and natural justice, and was unreasonable. I would note that the Applicant’s written submissions all pertain to breaches of procedural fairness and natural justice that he alleges arise out of the appeal process. In the context of his submission on the standard of review, the Applicant states that issue of whether the Appeal Tribunal has the authority to allow testimony from a candidate who failed to file an appeal, and to accept evidence outside the grounds of appeal raised by the Respondent, attracts the reasonableness standard as the Applicant is requesting the Court to interpret the PBCN Election Code. Beyond this, the Applicant makes no submissions specific to interpretation of the Code or the reasonableness of the decision.
[12] In my view, given the Applicant’s submissions, the issue is whether the Appeal Tribunal breached the duty of procedural fairness owed to the Applicant.
[13] Issues of procedural fairness are reviewable on a correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canada v Akisq’nuk First Nation, 2017 FCA 175 at para 19 [Akisq’nuk]; Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa] aff’d 2017 FCA 203). I note that the Federal Court of Appeal has recently stated that 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 [Baker] (Canadian Pacific Railway Company v Canada, 2018 FCA 69 at para 54 [Canadian Pacific Railway]) 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 at para 54).
[14] To the extent that the issues raised concern the reasonableness of the decision itself or the interpretation of the PBCN Election Code, they attract a reasonableness standard (D’Or v St. Germain, 2014 FCA 28 at para 6 [D’Or]; Gadwa at para 19; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at paras 35, 37).
The PBCN Election Code
[15] As noted above, the April 10, 2018 election was governed by the PBCN Election Code. The relevant parts of this Code follow:
[16] Section 2 of the PBCN Election Code defines a corrupt practice as follows:
“CORRUPT PRACTICE” means any act done by a Candidate or an elected official, whether Chief or Councillor, who unlawfully and/or wrongly uses his/her name or position of authority or trust to procure some benefit or favour for him/herself or for another person contrary to his/her official duties and/or the rights of other persons and includes any act or omission that is recognized by law or custom to be a Corrupt Practice, including coercion or vote buying.
[17] Section 5 sets out election and nomination procedures including the following:
(f) The Electoral Officers shall:
i. Post all notices and distribute all election information pursuant to this election Code;
ii. Establish and publicly post a voters list of eligible Electors for each Reserve/Community by the third Friday in January prior to the election.
…..
iv. By the third Friday in January prior to the Election, post notices at the Peter Ballantyne Cree Nation offices, and once in newspapers published Saskatoon, Prince Albert, La Ronge, Flin Flon, and such other places as the Head Electoral Officer decides are necessary, to notify the eligible Electors of the Nomination Meetings and Election dates which will include the place and time for each;
v. Arrange facilities to conduct a Nomination Meeting, advance polls, and the General Election; ensure the facilities have internet connection & computers available for all polling stations.
…..
viii. Count the ballots in the presence of the Members and designated Scrutineers and announce and post the official Election results;
….
(l) Procedures on ELECTION DAY shall be as follows:
i. The ballots, metal ballot boxes, polling station and all facilities required for election purposes shall be the responsibility of the Head Electoral Officer, Assistant to the Head Electoral Officer and/or Deputy Electoral Officers including the full supervision, security, and proper conduct of Members at all polling stations(s);
…..
vi. Following the closure of the polling station, the Electoral Officers shall, in the presence of the Members, present, examine and tabulate the ballots. Following the initial count before the Members, the Electoral Officers, shall release the official results of the Election.
….
xi. Any Councillor Candidate has a right to a re-count for that community only if the number of votes between candidates is less than twenty (20) for the elected Councillor. This request must be made in writing within forty-eight (48) hours after the closing of the polls.
xii. The Head, Deputy and other Electoral Officers shall ensure that there is no loitering in the vicinity of the polling stations and they are hereby empowered to control or evict loiterers if deemed necessary. Loitering includes actions by Candidates or representatives. For the purposes described in this Election Code, loitering within fifty (50) m of the polling station shall not be tolerated.
…..
(o) There shall be advance polls in each of the identified Peter Ballantyne Cree Nation reserves and communities for one day from 11:00 a.m. to 8:00 p.m., to be held at least 5 days before the General Election. Saskatoon and La Ronge urban (for Prince Albert Urban Councillor position only) and Kinoosao (for Southend Councillor positions only) will have advance polls only. All who cast their vote in advance polls will be entered into a computer for monitoring purposes for Election Staff so no Member will be able to double vote in any community.
[18] Section 7 addresses the Appeal Tribunal:
The Appeal Tribunal shall consist of one eligible Member from one of the seven (7) communities: Pelican Narrows, Deschambault Lake, Southend, Sandy Bay, Denare Beach, Sturgeon Landing, and Prince Albert Urban. Appeal Tribunal members shall be elected by a simple majority of Electors at the nomination meeting in each community. For further clarification, each community selects one Appeal Tribunal member only. Each member must have a working knowledge of the policies and procedures of the current Administration for the purposes of understanding their role and responsibilities as it pertains to their appointment to the Appeal Tribunal.
(a) An Appeal Hearing will take the form of a formal meeting consisting of the Appeal Tribunal, Appeal Tribunal independent legal counsel, the Appellant and his/her legal counsel, and any affected Candidates and their legal counsel.
…..
[19] Section 8 sets out the election appeal procedures:
8. The Election Appeal procedures shall be as follows:
(a) Any Candidate may appeal the results of an Election within twenty (20) days from the date of the Election by delivering a notice of an appeal, setting forth the grounds of the appeal and supported by an Affidavit of the Candidate to the Head Electoral Officer or a Deputy Electoral Officer.
(b) An appeal is restricted to the following grounds:
i. Conduct that contravenes this Election Code which may reasonably have affected the outcome of the Election;
ii. A Corrupt Practice related to the Election which may reasonably have affected the outcome of the Election;
(c) The Appeal Tribunal shall be entitled to retain independent legal counsel that is not a PBCN Band lawyer and will rule on whether to allow or disallow an Appeal Hearing within two (2) weeks after expiration of the twenty (20) day appeal period.
(d) If there is sufficient evidence to warrant an Appeal Hearing, the Appeal Tribunal will order a hearing within ten (10) days. The Appeal Tribunal shall notify the Appellant and any affected Candidates of the date, time, and place of the Appeal Hearing.
(e) An Appeal Hearing will take the form of a formal meeting consisting of the Appeal Tribunal, independent legal counsel, the Appellant and his/her legal counsel, and any affected Candidates and their legal counsel. The Appeal Tribunal may:
i. Deny the Appeal
ii. Uphold the Appeal but allow the Election to stand on the grounds that the conduct complained of could not reasonably have affected the outcome of the Election;
iii. Uphold the Appeal and call for a By-Election within thirty (30) days of the upholding of an appeal decision;
(f) The decision of the Appeal Tribunal is final and binding on all parties.
Preliminary Matters
[20] When the Applicant filed his Notice of Application on June 25, 2018, it named PBCN and the three individual members of the Appeal Tribunal as the respondents. By an Order of this Court dated February 12, 2019, the individual members of the Appeal Tribunal were removed as respondents as they had been so named in contravention of Rule 303(1)(a) of the Federal Court Rules, SOR/98-106. And, while Clarisse Lecoq has been involved in this matter, at no time was she ever formally added as a respondent or as an intervenor to this application for judicial review. When this was raised with counsel at the commencement of the hearing before me, it was agreed that she would be added as a named respondent and the style of cause would be amended accordingly.
[21] Second, while much of the Applicant’s appeal, and the evidence of witnesses at the Appeal Hearing, concerned allegations of acts of election impropriety or corruption, the Appeal Tribunal specifically found than none of the candidates did anything wrong in the course of the Prince Albert Urban district election. Unsurprisingly, the Applicant has not taken issue with that finding. Accordingly, that aspect of the decision and evidence related to it will not be addressed in these reasons.
Positions of the Parties
i) PBCN’s Position
[22] In this application for judicial review, PBCN has filed a Memorandum of Fact and Law in which it states that it takes no position and makes no submissions in response to the issues raised by the Applicant. PBCN does, however, make submissions on costs, which will be addressed below.
ii) Applicant’s Position
[23] The Applicant submits that it is not disputed that the Appeal Tribunal’s decision triggers the duty of procedural fairness (Gadwa referencing Baker at p 836 and Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at p 653; Mavi v Canada (Attorney General), 2011 SCC 30 at para 38 [Mavi]). Rather, the question is the content of that duty. In that regard, the Applicant makes reference to the Baker factors, and submits that the content of the duty must be assessed contextually.
[24] He also submits that the Appeal Tribunal failed to follow the procedure set out in the provisions of the PBCN Election Code and breached its duty of procedural fairness by:
Breaching s 8(a) of the Code by accepting deposed and oral evidence, in addition to the affidavit of the Respondent, as a candidate;
Breaching s 8(e) of the Code by allowing chief and cross-examinations consisting of individuals who were not candidates within the general election;
Breaching s 8 of the Code by allowing the oral testimony of Eric Nateweyes, which alleged conduct outside the grounds of the appeal relied upon by the Respondent;
Failing to give the Applicant notice with respect to the nature of Eric Nateweyes’ allegations made at the Appeal Hearing.
[25] The Applicant references my analysis in Gadwa, quoting paras 48–59, but submits that he is owed a higher duty of procedural fairness given the decision-making powers of the Appeal Tribunal. Further, because the calling of a by-election of a duly elected official and the departing from the enacted procedure of an appeal in a First Nation general election is not a trivial matter.
[26] The Applicant submits that he objected to the oral testimony of Eric Nateweyes and the raising of allegations or the leading of evidence outside the grounds listed in the Respondent’s appeal. Further, he did not receive fair nor any notice of the Applicant’s intention to lead evidence from Mr. Nateweyes or the nature of his anticipated testimony, upon which, the Applicant asserts, the Appeal Tribunal placed substantial weight. Nor was his counsel afforded the opportunity to make closing arguments with respect to the admissibility of Mr. Nateweyes’ testimony.
[27] According to the Applicant, the PBCN Election Code requires a candidate to file grounds for appeal within 20 days from the election, and limits the submission of material supporting an appeal to an affidavit of the affected candidate. However, the Appeal Tribunal allowed considerable material in addition to that of an affected candidate. Further, Eric Nateweyes’ failure to file an appeal within the required 20 days prohibits him from submitting grounds for appeal outside those raised by the Respondent.
[28] The Applicant also submits that the Appeal Tribunal commented on the shortcomings of the PBCN Election Code and suggested that calling a by-election for elected positions, in addition to the Prince Albert Urban councillor position, would have been most equitable. But, failing to have the jurisdiction to do so, it called only the by-election for the Prince Albert Urban position. In failing to have sufficient jurisdiction to direct precise procedural fairness or just treatment of the election, any quasi-remedy should also fail. Further, the reason raised by the Appeal Tribunal to justify the departure from the clear wording of the appeal procedures in s 8 of the PBCN Election Code is unacceptable given the consequences to the Applicant (Prince v Sucker Creek First Nation #150A, 2008 FC 1268 at paras 48–49).
[29] Finally, the Applicant submits that, regardless of the duty of fairness owed to him, the aforementioned flaws in the appeal process are unreasonable, incorrect and unfair.
iii) Respondent’s Position
[30] The Respondent alleges that in addition to the allegations of procedural unfairness raised in the Applicant’s Memorandum of Fact and Law, the Applicant indicated, when cross‑examined on his affidavit filed in support of this application for judicial review, that it was procedurally unfair for the Appeal Tribunal to dismiss the election appeals at Pelican Narrows and Sandy Bay, but not the appeal at Prince Albert. The Respondent states that this argument is without foundation.
[31] The Respondent submits that the PBCN Election Code sets out a two-step procedure. At the first stage, the submitted grounds of appeal and supporting candidate affidavit are assessed to determine whether it is sufficient to warrant an Appeal Hearing. If so, at the second stage a hearing is held.
[32] The Respondent submits that the Applicant’s argument that it was procedurally unfair for the Appeal Tribunal to accept deposed and oral evidence in addition to the affidavit submitted by the Respondent as a candidate with her appeal, confuses the two-stage process employed by the PBCN Election Code.
[33] As to the allowing of chief and cross-examination of individuals who were not candidates within the general election, while the Code is silent as to the manner in which evidence will be taken and who can testify, it is clear that any witness who was called was allowed to be cross‑examined by the other side. Further, at no time did the Applicant object to evidence being led of a witness who was not a candidate. In fact, the Applicant himself called as a witness Randy Clarke, the Head Electoral Officer, who was not a candidate.
[34] As to the calling of Eric Nateweyes as witness and the Applicant’s allegation that the Appeal Tribunal allowed testimony that alleged conduct outside the grounds of appeal raised by the Respondent, the Applicant submits that Eric Nateweyes was in fact a candidate in the election, but he did not file an appeal. Further, his testimony was encompassed by the overall grounds of appeal that the Respondent raised, which included “breaking of policies and procedures and rules of the election”. In fact, it was Randy Clarke’s testimony, the Applicant’s witness, that established the irregularities for which the election for Prince Albert Urban councillor was set aside. His evidence was the best evidence of the irregularities. Had Mr. Nateweyes’ testimony been the only evidence of procedural irregularities, then perhaps some consideration could be given to the Applicant’s argument, however, his testimony became redundant once Randy Clarke testified. The Appeal Tribunal did not rely of the testimony of Mr. Nateweyes.
[35] Concerning the Applicant’s argument that he was not given notice of the nature of Eric Nateweyes’ allegations made at the hearing, the Respondent points out that the PBCN Election Code does not provide that disclosure must be made concerning the evidence an appellant may wish to lead. Nor does it state that the only admissible evidence is that raised in the candidate affidavits. Advance disclosure is only relevant in criminal proceedings. It would be procedurally unfair and an injustice if the Appeal Tribunal was to ignore evidence of irregularities or misconduct.
[36] Here the Appeal Tribunal correctly followed the two-stage procedure and conducted an Appeal Hearing with all parties having a right to call witnesses and conduct cross-examination. The evidence of Randy Clarke showed procedural irregularities, which the Appeal Tribunal correctly concluded could have affected the outcome of the election. The Appeal Hearing was conducted fairly; it heard all the witnesses, allowed cross-examination, accepted exhibits, and gave a detailed and well-reasoned decision. Accordingly, there was neither a breach of procedural fairness or natural justice.
[37] The Respondent also submits, on the basis of the treatment of a certified question in Baker, that once the Appeal Tribunal accepted the appeal for hearing in accordance with s 8(d) of the PBCN Election Code, it was open to the Appeal Tribunal to consider all aspects of the appeal lying within its jurisdiction.
[38] Further, in applying the principles in Baker, it is clear that there was no procedural unfairness since the Applicant had full opportunity to examine and cross-examine witnesses and to present his own testimony. The mere fact that the Applicant’s witness supported the Respondent’s contention that the Code was not followed does not amount to procedural unfairness. An example of what constitutes procedural unfairness is found in Okemow v Lucky Man Cree Nation, 2017 FC 46 [Okemow].
Analysis
[39] I agree with the Respondent that reading s 8(a) to (e) of the PBCN Election Code together establishes a two-stage appeal procedure. Similar provisions were considered in Bill v Pelican Lake Band, 2006 FC 679 at paras 46, 47 and Linklater v Peter Ballantyne Cree Nation Election Appeal Committee, 2011 FC 1353 at para 5, where the two-step process was confirmed.
[40] Any Candidate (defined in s 2(e) as an eligible PBCN member seeking the office of either Councillor or Chief) may appeal the results of an election by delivering a notice of appeal setting out the grounds of appeal and supported by an Affidavit of the Candidate (s 2(d) defines “Affidavit” as a written sworn statement of the fact(s) voluntarily made by a Candidate under oath or affirmation administered by a person authorized to do so by law). At the first stage, the Appeal Tribunal decides, within two weeks of the expiry of the twenty-day appeal period, whether or not to allow an Appeal Hearing (which is not a defined term). Section 8(d) states that if there is sufficient evidence to warrant an Appeal Hearing, the Appeal Tribunal will order a hearing within ten days. Thus, at this first or threshold stage, the evidence before the Appeal Tribunal would, at a minimum, be the Candidate’s Affidavit and the notice of appeal. Section 8(e) pertains to the second stage of the appeal process, the conduct of the Appeal Hearing.
iv) Section 8(a)
[41] The Applicant takes the view that because s 8(a) of the PBCN Election Code permits the commencement of an appeal by a Candidate by delivering a notice of appeal setting out the grounds of appeal, supported by a Candidate’s Affidavit, this must be read to exclude the submission of any other evidence other than the Candidate’s Affidavit. Therefore, the Appeal Tribunal erred in considering such evidence.
[42] The Applicant offers no statutory interpretation analysis with respect to s 8 of the Code or any authorities in support of his view.
[43] In my view, because a plain reading of s 8(a) to (d) does not exclude the submission of other evidence at the first stage of the appeal process, there would be nothing inherently procedurally unfair or unreasonable about the Appeal Tribunal accepting for consideration evidence from other sources. It may be, for example, that an appellant would not have personal knowledge of certain facts or events and that such information would be necessary to assess the appellant’s allegation. The Appeal Tribunal could accept such evidence and, together with the other evidence before it, assess whether it was relevant, reliable and material so as to be sufficient to meet the threshold requirement, thereby warranting an Appeal Hearing.
[44] This view finds support in Wolfe v Ermineskin, 2001 FCA 199 [Wolfe], referenced in Strawberry v O’Chinese First Nation, 2017 FC 869 at para 39, which is relied upon by the Respondent. In Wolfe, the Federal Court of Appeal had to determine whether the right to appeal to the Election Appeal Board as provided for by the Ermineskin Tribal Election Regulations was an adequate alternative remedy to judicial review. Those regulations provided that within 14 days after the holding of an election, a candidate (which the appellant in that case was not) could appeal to the board on certain specified grounds. The Federal Court of Appeal concluded that it was reasonably open to the trial judge to conclude that the right to appeal was an adequate alternative remedy, and, as to the submission of evidence by persons other than candidates, the Court stated:
While the right of appeal to the Board is limited to candidates in the election, there is no evidence that the appellant had taken any steps to see whether a candidate was willing to take his concern to the Board. Further, we are not persuaded by counsel's argument that the right of appeal is not an adequate remedy because the procedures of the Board for examining a complaint that are prescribed in Regulations 28 and 29 are unsatisfactory. In our view, the Regulations do not preclude the Board from properly investigating a complaint in a fair manner, including, where appropriate, by providing an opportunity for a person who was not a candidate in the election to put before the Board evidence in support of the complaint.
[45] Further, Courts will defer to any reasonable interpretation adopted by an administrative decision-maker, even if other reasonable interpretations may exist (McLean v British Columbia (Securities Commission), 2013 SCC 67 at para 40).
[46] Based on the foregoing, I do not agree with the Applicant that the Appeal Tribunal breached s 8(a) of the PBCN Code by accepting evidence in addition to the Applicant’s Candidate Affidavit. That said, it is also entirely unclear what evidence was before the Appeal Tribunal when it determined that an Appeal Hearing was warranted.
[47] Although not addressed in the Applicant’s written submissions, in his June 27, 2018 affidavit made in support of this application for judicial review, the Applicant states that the 12 documents attached as exhibits to his affidavit “were filed and accepted by the Appeal Tribunal in the Urban Appeal Hearing”. Further, that of the authors of those documents, only the Respondent (for the Prince Albert Urban area) and Eileen Linklater (for Pelican Narrows area) were Candidates who filed an appeal. Despite this, the Appeal Tribunal accepted for filing all of the material contained in the exhibits in direct contravention of s 8(e) of the Code. He also states that this was filed in connection with the Appeal Hearing.
[48] I would first note that s 8(e) is concerned with the second stage of the appeal process, the Appeal Hearing, and that these exhibits, other than the Respondent’s appeal letter and Candidate’s Affidavit, do not form part of the Certified Tribunal Record [CTR]. If, in fact, this material was accepted by the Appeal Tribunal as part of the Respondent’s appeal, then this would suggest that it was accepted at the first stage of the appeal process in determining if an Appeal Hearing was warranted. This is supported by the fact that the Appeal Tribunal decision clearly sets out the evidence that was submitted during the hearing, which it identifies as exhibits to the hearing. The CTR also verifies that the Appeal Tribunal produced any and all relevant and material documents in the Appeal Tribunal’s possession, custody and control, and that they were all considered by the Appeal Tribunal in making its decision.
[49] Based on the record before me, it is not possible to determine what, if any, “deposed and oral evidence” was submitted in support of the first stage of the appeal process, other than the Respondent’s notice of appeal and Candidate’s Affidavit. Nor is it possible to reconcile the Applicant’s submission pertaining to s 8(e) with the CTR, and, in that regard, I prefer the evidentiary record as provided in the latter.
[50] In any event, I have found above that s 8(a) does not exclude the admission of evidence other than the notice of appeal and Candidate’s affidavit at the first stage of the appeal process and it was, therefore, not a breach of procedural fairness if the Appeal Tribunal chose to do so.
v) Section 8(e)
[51] I also do not agree with the Applicant’s second submission that the Appeal Tribunal breached s 8(e) by allowing direct and cross-examination of witnesses other than Candidates.
[52] Once a decision has been made to hold an Appeal Hearing, the only procedural requirements found in the PBCN Election Code are that the Appeal Tribunal will order a hearing within ten days and shall notify the appellant and any affected Candidates of the date, time and place of the Appeal Hearing, pursuant to s 8(d), and that the hearing is to take the form of a formal meeting consisting of the Appeal Tribunal, independent legal counsel, the appellant and his/her legal counsel, and any affected Candidates and their legal counsel, pursuant to s 8(e). The PBCN Election Code is otherwise silent as to the manner in which the Appeal Hearing will proceed, including how evidence will be taken and who can testify. In the face of such silence, there is nothing to preclude the Appeal Tribunal from determining its own procedure, provided it is not otherwise inconsistent with the PBCN Election Code and procedural fairness (Prassad v Canada (Minister of Employment and Immigration), [1989] 1 SCR 560 at p 569; Cardinal v Bigstone Cree Nation, 2018 FC 822 at paras 27–28).
[53] As a preliminary observation, I note that while the Applicant asserts that the Appeal Tribunal’s decision was procedurally unfair because it failed to comply with the appeal process set out in s 8 of the PBCN Election Code with respect to the calling of witnesses, it does not appear that the Applicant challenged the Appeal Tribunal’s interpretation and application of the Code at the Appeal Hearing. The Appeal Tribunal’s reasons note that there were no preliminary issues or applications raised by either party’s legal counsel. Both sides called witnesses –candidates and others – who were examined in chief, cross-examined, and the opportunity to re-direct was offered. No objection to this procedure is indicated. The reasons do indicate that counsel for the Applicant made three objections, but each of these pertained to the admissibility of hearsay evidence. Given that the Applicant and Respondent both arrived at the hearing with their witnesses and counsel, it would follow that they were aware of and prepared for the intended process.
[54] To the extent that the Applicant is now challenging the procedure adopted by the Appeal Tribunal of allowing witnesses to be called, there is no evidence that the Applicant raised this issue with the Appeal Tribunal. As this Court noted in Muskego v Norway House Cree Nation, 2011 FC 732 at para 42:
42 It is a well-established principle that a party must raise an issue of procedural fairness at the first opportunity. The failure to do so will amount to an implied waiver: see, for example, the decision of this Court in Kamara v. Canada (Minister of Citizenship & Immigration), 2007 FC 448 (F.C.):
[26] ...The jurisprudence of the Court is clear; such issues dealing with procedural fairness must be raised at the earliest opportunity. Here, no complaint was ever made. Her failure to object at the hearing amounts to an implied waiver of any perceived breach of procedural fairness or natural justice that may have occurred. See Restrepo Benitez et al v MCI, 2006 FC 461 (CanLII), 2006 FC 461 at paras 220-221, 232 & 236, and Shimokawa v MCI, 2006 FC 445 (CanLII), 2006 FC 445 at paras 31-32 citing Geza v MCI, 2006 FCA 124 (CanLII), 2006 FCA 124 at para. 66.
(Also see Uppal v Canada (Minister of Citizenship & Immigration), 2006 FC 338 at paras 51–52).
[55] That said, based on his submissions, it appears that the Applicant’s primary concern is not that the evidence took the form of direct and cross-examination, but rather that evidence was led from individuals who were not Candidates. His submission is not clear on this point, but it appears to be based on the fact that s 8(e) lists certain individuals whose presence is explicitly required at an Appeal Hearing. However, this provision would appear to be directed at ensuring that the party bringing the appeal – the appellant – as well as other Candidates affected by it, and their legal counsel, will participate in the Appeal Hearing. Nothing in s 8(e) restricts witnesses to persons who are Candidates or precludes Candidates from calling other witnesses to give evidence. Doing so is, therefore, not in breach of that provision and is not an inherent breach of procedural fairness. Further, interpreting this requirement in a way that excludes the presence of others for the purpose of giving evidence could have the result of preventing the Appeal Tribunal from effectively carrying out its function. Evidence of an appeal ground may not be within the personal knowledge of an applicant (see Gadwa at para 61). And, where a ground of appeal turns on credibility, hearing oral testimony may be the most effective way for an Appeal Tribunal to perform its fact-finding function.
[56] In sum, the appeal Tribunal did not breach its duty of procedural fairness by permitting oral testimony by Candidates and other witnesses.
vi) Oral Testimony of Eric Nateweyes
[57] Eric Nateweyes was a Candidate in the election. Therefore, as I understand the Appellant’s submissions, he does not suggest that a breach of procedural fairness arises from Mr. Nateweyes being permitted to give testimony, as such, at the Appeal Hearing. Rather, the Applicant submits that the Appeal Tribunal breached s 8 of the PBCN Election Code by allowing Eric Nateweyes to give testimony that alleged conduct outside of the grounds of appeal relied upon by the Respondent. The Applicant submits that he objected to this. Further, that he had no notice of the nature of Mr. Nateweyes’ anticipated testimony, upon which the Appeal Tribunal placed substantial weight. Nor was his counsel afforded an opportunity to make closing arguments with respect to the admissibility of Mr. Nateweyes’ testimony.
vii) Objection to testimony
[58] In the Applicant’s affidavit filed in support of this application for judicial review, he states that Eric Nateweyes, who was also a Candidate in the Prince Albert Urban district, raised issues outside the Respondent’s grounds of appeal, and gave evidence in support of “his appeal”. The latter reference may be related to the Applicant’s allegation, contained in his Notice of Application, that the Appeal Tribunal breached the duty of procedural fairness owed to the Applicant “by allowing an appeal of an unsuccessful candidate, Eric Nateweyes, who did not file an appeal, in contravention” of s 8(a) of the Code. If so, this is of no merit. Mr. Nateweyes was not purporting to launch an appeal by way of testifying at the Appeal Hearing convened as a result of the Respondent’s complaint.
[59] The Applicant also submits that he instru