West v. Cold Lake First Nations

West v. Cold Lake First Nations
Collection
Canadian Human Rights Tribunal
Date
2021-01-04
Neutral citation
2021 CHRT 1
File number(s)
T2400/5919
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Family Status
National or Ethnic Origin
Race
Summary:
The Complainant, Ms. West, is a First Nations Cree woman and member of Cold Lake First Nations (CLFN). In 2016, she tried to run for election as a councillor for the CLFN band council, but her nomination was rejected by the election officer. In making this assessment, the officer also consulted a committee of Elders which advises on CLFN’s traditional laws.
Ms. West had failed to give the officer documents needed to establish that she met the requirements under CLFN’s Election Law to be a candidate for election. No evidence was provided as to what the officer’s decision would have been had he received the relevant documentation needed. No evidence was given as to the content of discussions that took place between the officer and the committee of Elders.
Ms. West said that the Respondent, CLFN, discriminated against her in the provision of services based on her race, national or ethnic origin (Cree) and her family status (her father was adopted by members of CLFN). She also argued that she had been discriminated against through the application of CLFN’s Election Law.
The Tribunal found that the rejection of Ms. West’s nomination is not an activity that falls under the definition of “service customarily available to the general public” as described in section 5 of the Canadian Human Rights Act. Rather, the officer’s role is to ensure compliance with the Election Law’s criteria.
Ms. West took issue with the Election Law itself as well as the application of the selection criteria. Ms. West also argued that procedural problems in the way her nomination was reviewed caused her unfairness. These challenges should have been brought before the Federal Court of Canada. The Tribunal does not have jurisdiction to deal with this part of the complaint.
Ms. West had also stated that CLFN retaliated against her daughter, because of the filing of the human rights complaint. She claimed that her daughter didn’t receive the house in the community that she had been promised by CLFN. The evidence presented showed that the house was assigned to someone else for reasons that have nothing to do with Ms. West’s human rights complaint.
The Tribunal therefore dismissed both parts of Ms. West’s complaint.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
1
Date:
January 4, 2021
File No.:
T2400/5919
Between:
Bonnie West
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Cold Lake First Nations
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Decision Overview and Background 1
II. Issues 2
III. Discrimination Law 3
IV. Preliminary Issue 5
V. Analysis and Parties’ Arguments 7
A. Facts 7
B. Characteristics Protected under CHRA 11
C. Analysis of Applicability of Section 5 of CHRA and Provision of Services Customarily Available to Public 12
VI. Other Allegations by Ms. West 25
A. Protest Against Ms. West’s Nomination 25
B. Attestation of Protest Form 27
C. Elections Officer and Committee of Elders 28
VII. Retaliation 31
VIII. Decision 37
I. Decision Overview and Background
[1] This decision concerns a complaint by Bonnie West (the “Complainant”), a First Nations Cree woman and member of Cold Lake First Nations (“CLFN”, the “Respondent” or the “Nation”), who in June 2016 attempted to stand for election as councillor to sit on the CLFN band council.
[2] Her nomination was rejected by the elections officer, and Ms. West filed a complaint with the Canadian Human Rights Commission (the “Commission”), a complaint that was referred to the Tribunal in July 2019.
[3] In her complaint Ms. West alleges that she was discriminated against contrary to section 5 of the Canadian Human Rights Act (the “Act” or “CHRA”) in the provision of services by the Nation on the grounds of her race, her national or ethnic origin, and her family status (subsection 3(1) of the CHRA).
[4] More specifically, Ms. West submits that the conjunction of her race and national or ethnic origin (Cree) and her family status (her father was adopted by members of the Nation) was a factor in the elections officer’s rejection of her nomination.
[5] In addition, with the Tribunal’s permission, Ms. West amended her complaint, adding an allegation of retaliation by CLFN, contrary to section 14.1 of the CHRA. More specifically, she alleges that she was retaliated against through another person, given that her daughter, Jolene Janvier, was not given access to a new house in the community, in contrast to what had been planned.
[6] Ms. West believes that the complaint she filed was a factor in CLFN’s decision to reassign her daughter’s future house to another member of the Nation. She believes that CLFN acted in this manner in retaliation against her filing her complaint.
[7] The hearing took place from July 29 to 31, 2020, entirely by videoconference in light of the public health crisis in Canada and the rest of the world. Aside from a technological adjustment at the beginning of the hearing, the parties and the Tribunal did not, in my opinion, experience any particular difficulties in using the technology and the videoconference.
[8] The Tribunal had issued clear, precise rules for both the parties and the witnesses, and had prepared detailed guidelines for the filing of documentary evidence and final submissions, including the filing of case law. The parties and the witnesses strictly complied with these rules and guidelines.
[9] Finally, each of the parties in this case participated, collaborated and cooperated in an exemplary manner. Even though it does not affect this decision, I would like to note the efforts made by Ms. West in this proceeding even though she was not represented by counsel. I recognize these efforts, which allowed her to carry this complaint through to the end. In addition, Ms. Walsh, counsel for the Commission, and Ms. Lambert, counsel for the Respondent, and their colleagues were courteous “officers of the court” who understood and respected the principle of proportionality that applies when counsel interact with an unrepresented party within the scope of their mandate. I would like to take this opportunity to recognize this professionalism.
[10] Having said that, I have to make a decision on Ms. West’s complaint on the basis of the evidence before me at the hearing. Having analyzed the documentary evidence and the testimony, as well as the case law and the submissions presented to me, I conclude that Ms. West’s complaint must be dismissed in its entirety (subsection 53(1) of the CHRA), for the following reasons.
II. Issues
[11] The first main issue in this complaint is clear:
Did the Respondent or any of its agents discriminate against Ms. West in the provision of services to the general public, contrary to section 5 of the CHRA?
[12] More specifically, at issue is whether CLFN or any of its agents discriminated against Ms. West when she was found to be ineligible for band council, within the meaning of section 5 of the CHRA.
[13] The following is the second main issue:
Did the Respondent or any of its agents retaliate against Ms. West, contrary to section 14.1 of the CHRA?
[14] At issue more specifically is whether CLFN retaliated against Ms. West through a third party, in this case, her daughter, Jolene Janvier, who did not gain access to the house assigned to her, as a result of the complaint filed under the CHRA.
[15] The Tribunal will also deal with some complementary issues raised by the Complainant, particularly with respect to the submission of a protest by a CLFN member, the attestation of this protest, the breaches of procedural fairness and natural justice allegedly made by the elections officer and the committee of Elders’ unfamiliarity with Ms. West’s family history.
III. Discrimination Law
[16] It is important to remember that the purpose of the CHRA is to ensure that all individuals have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on prohibited grounds of discrimination (section 2 of the CHRA).
[17] It is well established that the complainant first has to meet his or her burden of proof on a balance of probabilities. To do this, the complainant has to show a prima facie case. A prima facie case is one which covers:
[…] the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‑employer.
(Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536, at paragraph 28 [Simpsons-Sears])
[18] Three elements must be established by Ms. West, on a balance of probabilities:
1) She has one or more prohibited grounds of discrimination under the CHRA.
2) She experienced an adverse impact (in this case, contrary to section 5).
3) The prohibited ground or grounds of discrimination were a factor in the adverse impact.
(Moore v. British Columbia (Education), 2012 SCC 61, at paragraph 33 [Moore], and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 789, at paragraph 63 [Bombardier]; Simpsons‑Sears, at paragraph 28).
[19] For retaliation, the first element of the analysis developed in Moore changes, in that the basis for the complaint is not a prohibited ground of discrimination (section 3 of the CHRA) but the filing of the complaint as such.
[20] Practically, therefore, the complainant has to establish the following with regard to retaliation (section 14.1 of the CHRA), also on a balance of probabilities:
(1) She previously filed a complaint;
(2) She experienced an adverse impact;
(3) The filing of the complaint was a factor in the adverse impact.
(First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada)), 2015 CHRT 14, at paragraphs 4 and 5 [Family Caring Society]).
[21] Ms. West’s complaint raises some other highly interesting issues, particularly with respect to the Tribunal’s jurisdiction to deal with her complaint. More specifically, the complaint raises a fundamental issue: does section 5 of the CHRA actually apply in the circumstances?
IV. Preliminary Issue
[22] The Commission suggests that a preliminary issue is the Tribunal’s analysis to determine whether the actions described in Ms. West’s complaint fall under or trigger the protection of section 5 of the CHRA.
[23] The Respondent also devoted most of its arguments to the issue of whether the actions described in Ms. West’s allegations are indeed a “service”. It argued, among other things, that the Complainant was in fact directly challenging the Cold Lake First Nations Election Law, adopted on May 27, 1986 (the “1986 Election Law”).
[24] I do wonder whether this issue must necessarily be dealt with as a preliminary issue. Should the matter of determining whether the alleged actions are a “service” not be a standard part of the Tribunal’s analysis developed in Moore?
[25] For one, it is clear that the Tribunal is in the best position for determining whether the alleged actions are a “service” within the meaning of section 5 of the CHRA. The Tribunal has the jurisdiction to deal with this question (Canada (Human Rights Commission) v. Saddle Lake Cree Nation, 2018 FCA 228, at paragraphs 34 and 38).
[26] Second, the Supreme Court recently ruled on a lengthy legal debate in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31. This decision is commonly referred to as Matson/Andrews, since it is the culmination of the joining of two complaints that the Tribunal disposed of: Matson et al. v. Indian and Northern Affairs Canada, 2013 CHRT 13 [Matson], and Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21 [Andrews]. Both decisions were brought before the Federal Court for judicial review, appealed before the Federal Court of Appeal, and ultimately ended up before the Supreme Court of Canada.
[27] Without going over the details of the analysis of my colleagues, members Lustig and Marchildon, in those two complaints, I must note that they dismissed the complaints because they were direct challenges of the Indian Act, R.S.C., 1985, c. I-5. The proper procedural vehicle for challenging that statute is the judicial one, with regard to section 15 of the Canadian Charter of Rights and Freedoms, Part I of the The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Canadian Charter”).
[28] In Matson/Andrews, the Supreme Court held that the Tribunal’s decisions were reasonable. Our highest authorities therefore confirm that the act of legislating is not a service. In other words, Parliament’s law-making is not a service as such within the meaning of section 5 of the CHRA.
[29] In the Tribunal’s two decisions, Matson and Andrews, members Lustig and Marchildon both approached the issue of a direct challenge to legislation and the act of legislating performed by Parliament as a preliminary matter; it became the focus of their analysis.
[30] When they concluded that the complaints in Andrews and Matson were merely direct challenges to the Indian Act, the analysis could not be continued. I believe that dealing with this issue preliminarily was a choice my colleagues made, a discretion they exercised, and I fully respect it.
[31] In Matson/Andrews, the Supreme Court did not consider the analysis of the issue of a direct challenge to legislation as a preliminary matter. Rather, its reasoning focused on the principle of deference and the standard of reasonableness. It concluded that the Tribunal’s two decisions fell within a range of possible, reasonable outcomes. It therefore showed deference in applying its supervisory authority and did not rule on the point at which the “service” analysis should take place.
[32] In my opinion, the decision to deal with an issue preliminarily is within a member’s discretion.
[33] I would also add that I am not necessarily bound by the manner in which the parties decide to deal with what they consider to be the issues if there is a more coherent way of doing so.
[34] I completely agree with the Commission’s point that there is a minimal threshold, or evidentiary burden, that must be fulfilled. Indeed, the Tribunal must determine whether the acts and actions in question are essentially “services” within the meaning of the CHRA.
[35] However, it is my opinion that this fundamental issue can be a regular part of the analysis developed in Moore. The Tribunal has jurisdiction to analyze and determine what a “service” is and whether the acts in question fall into this category. This analysis can therefore be performed at the second stage of the analysis developed in Moore, when the Tribunal has to determine whether there was adverse treatment, or an adverse impact, in the provision of services customarily available to the general public.
[36] Before this second stage is reached, however, the complainant has to establish that one or more prohibited grounds of discrimination under the CHRA apply to him or her. If the complainant fails, the analysis must stop, and there is no need to consider the issue.
[37] I will review Ms. West’s complaint, the evidence presented at the hearing and the parties’ arguments keeping these preliminary observations in mind.
V. Analysis and Parties’ Arguments
A. Facts
[38] The Tribunal finds itself in an unusual situation: the main facts of the case are not disputed or, shall we say, not strongly disputed by any of the parties here. The main facts of the complaint are straightforward and clear, and they were presented to the Tribunal concisely and unambiguously by each of the parties.
[39] The Respondent, CLFN, is a First Nations community in Alberta with a population of about 3,000 members both on and off the reserve. In 1986, the Nation adopted an election law (the Cold Lake First Nations Election Law, adopted on May 27, 1986), which was approved by order of the former Minister of Indian and Northern Affairs, signed on December 29, 1989.
[40] As for the Complainant, Ms. West was a 61-year-old woman at the time of the hearing. She identifies as a Cree woman, a member of the First Nations and a member of CLFN.
[41] The undisputed evidence does indeed show that Ms. West has a 100% North American Indian Blood Quantum (to use the terms in the documentary evidence). Even though the members of CLFN are of mixed origin—they are of Chipewyan/Denesuline and Cree descent—Ms. West is actually of Cree descent.
[42] Ms. West was born and raised in the community, and she lived there for much of her life. She had to leave CLFN at certain times, for a few years, when she married her husband, who is not a member of a First Nation and works outside the community.
[43] Even though Ms. West currently lives outside CLFN, she works as the manager of the social development program for CLFN. This position is linked to Service Canada policies and procedures for members of the community in need of social assistance. Among other duties, Ms. West develops and administers these programs for members.
[44] In the June 2016 election for CLFN’s chief and band council, a member of the Nation nominated Ms. West to run for election as a councillor on the band council.
[45] After she was nominated, another member of the Nation, Loretta Angnaluak, protested Ms. West’s nomination. The protest alleged that Ms. West was not a direct descendant of original treaty citizens, contrary to subsection 5(G) of the 1986 Election Law.
[46] Upon receipt of the protest, the elections officer at the time, Allan Adam, had to consider the matter and determine whether Ms. West fulfilled the requirements set out in the 1986 Election Law, more specifically in subsection 5(G).
[47] Subsection 5(G) of the 1986 Election Law reads as follows:
In order to be eligible to run for Council, a person must be a direct descendent of original treaty citizens.
[48] Even though the 1986 Election Law does not clearly stipulate what is meant by “original treaty citizens”, the evidence establishes on a balance of probabilities that this expression refers to the signatories of Treaty No. 6. In other words, original treaty citizens are individuals who signed Treaty No. 6 on September 9, 1876. The list of the original signatories was produced as evidence by the parties.
[49] Both Ms. West and the Respondent consistently argued in favour of the same definition of this requirement. Moreover, Ms. West’s complaint and the items of evidence Ms. West presented, be they documentary (family tree, blood quantum, treaty card) or testimonial, directly mention that she is a direct descendant of Treaty No. 6 signatories.
[50] Only the Commission left room for doubt, by stating that the requirement is ambiguous, and thereby presumably open to interpretation. The Tribunal will discuss this argument later in this decision.
[51] This having been clarified, the evidence reveals that Mr. Adam asked Ms. West to provide him with a document, specifically an affidavit supporting her nomination, within 48 hours. Ms. West filed a short sworn statement with the elections officer, in which she declared before a commissioner of oaths that she was eligible to stand as councillor under subsection 5(G) of the 1986 Election Law given that she was a direct descendant of original treaty citizens.
[52] Even though Ms. West did not send this sworn statement directly to the elections officer, Mr. Adam, she did forward the document to a person on the band council, and Mr. Adam confirmed receipt of it to Ms. West.
[53] That being said, the evidence reveals that no other documents were submitted to Mr. Adam. Ms. West did not submit her family tree or the document confirming her North American Indian Blood Quantum as she did at the hearing.
[54] On June 25, 2016, Mr. Adam found that Ms. West did not fulfill the requirements under subsection 5(G) of the 1986 Election Law, and wrote the following in a short letter:
Based upon my review of all of the information provided to me, I have determined that you are not eligible for nomination as you do not meet the criteria set out in section 5.G of the Election Law. You did not provide the paperwork. ln addition, I have been provided with access to a committee of Elders to advise me on the traditional laws of the Cold Lake First Nations people.
[55] Ms. West testified that after receiving the elections officer’s decision by email, she asked him which additional documents were needed to establish that she could stand as a candidate for election.
[56] The evidence reveals that Mr. Adam did not answer her question. None of the parties in this case called the officer in question to testify on this subject. It is uncertain whether he saw or received the question.
[57] Ms. West also stated that the Elders, who were members of the council advising the elections officer on his decision, were unfamiliar with her family history and therefore the fact that she is a direct descendant of original treaty citizens. However, none of the parties chose to call the members of the committee of Elders as witnesses.
[58] Ms. West filed an appeal of the June 25, 2016, decision before the appeal committee provided for under the 1986 Election Law. The committee, consisting of three members, reviewed various appeals of the June 2016 election, including Ms. West’s appeal. She was able to show the committee a series of documents, including her family tree, her treaty card, the confirmation of her blood quantum and her family history.
[59] These documents, which were also filed as evidence at the hearing, supported the fact that Ms. West met the requirement in subsection 5(G) of the 1986 Election Law, specifically that she is a direct descendant of original treaty citizens.
[60] The evidence shows that Ms. West is a direct descendant of original treaty citizens (the signatories of Treaty No. 6) through her father’s maternal line. This ancestry is related to Chief Peh-ye-sis (or Chief Pee-Nay-Sis, or Chief François). Ms. West’s father, William Peter Janvier, was adopted by two members of the Nation, George Janvier and Juliana Cardinal. Juliana Cardinal’s parents are Johny Cardinal and Angele Desjarlais. Finally, Angele Desjarlais’s parents are Chief François Desjarlais and Euphrosine Auger. This evidence is also not disputed by the Respondent.
[61] This having been clarified, on August 11, 2016, the appeal committee issued a decision containing a number of remedial measures, including the holding of a new, accelerated election for councillors only. This directly affected Ms. West’s nomination.
[62] Without going into all the details, after the August 11, 2016, decision was made, the CLFN band council adopted a resolution stating in general terms that the appeal committee had exceeded its jurisdiction and that accordingly there would be no new election.
[63] The band council’s resolution concerning the appeal committee’s decision was judicially reviewed. There is no need to elaborate on this further as it is not determinative here.
[64] Suffice it to say that the band council’s resolution was upheld and it was determined that the appeal committee had indeed exceeded its jurisdiction. Ultimately, therefore, there was no new election of councillors, and Ms. West did not have an opportunity to stand in the 2016 election.
B. Characteristics Protected under CHRA
[65] Ms. West alleges that she experienced an adverse impact in the provision of a service because of her race, national or ethnic origin, and her family status, contrary to section 5 of the CHRA.
[66] There is little to say about Ms. West’s characteristics, which are undoubtedly protected by the CHRA. The Respondent also did not dispute the prohibited grounds of discrimination alleged in the complaint.
[67] Ms. West identifies as a Cree First Nations woman and as a member of CLFN. As evidence, Ms. West filed her Certificate of Indian Status (to use the term used by the former Department of Indian and Northern Affairs to describe the certificate). She also filed her blood quantum, showing her Cree origins, and her family tree.
[68] The evidence establishes on a balance of probabilities that Ms. West, who is a First Nations woman of Cree origin and a member of CLFN, has the characteristics of race and national or ethnic origin.
[69] Moreover, Ms. West established that her father, William P. Janvier, was adopted by Juliana Cardinal and George Janvier. Ms. West’s origins have been passed on through her father’s maternal line and make her a descendant of original treaty citizens.
[70] I need little to persuade me that the creation of this relationship, by the adoption of Ms. West’s father by two CLFN members, is covered by “family status” under section 3 of the CHRA.
[71] The CHRA does not define the concept of “family status”, but it is well established that its interpretation includes relations between individuals that are created by a parent-child relationship arising from adoption (see, for example, Seeley v. Canadian National Railway, 2010 CHRT 23; Canada (Attorney General) v. McKenna, 1998 CanLII 9098 (FCA), [1998] FCJ No 1501 (QL); Grismer v. Squamish First Nation, 2006 FC 1088; Worthington v. Canada, 2008 FC 409, [2009] 1 FCR 311; Beattie v. Aboriginal Affairs and Northern Development Canada, 2014 CHRT 1, at paragraph 106; Rivers v. Squamish Indian Band Council, 1994 CanLII 1217 (CHRT); Tanner v. Gambler First Nation, 2015 CHRT 19, at paragraphs 33 and following). This point was also not disputed by any of the parties.
[72] I therefore conclude that Ms. West has, on a balance of probabilities, three characteristics protected under the CHRA (section 3 of the CHRA).
C. Analysis of Applicability of Section 5 of CHRA and Provision of Services Customarily Available to Public
[73] One of the fundamental issues in this complaint is whether section 5 of the CHRA applies to the facts alleged by Ms. West.
[74] The English and French versions of section 5 of the CHRA read as follows:
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.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d’installations ou de moyens d’hébergement destinés au public : a) d’en priver un individu; b) de le défavoriser à l’occasion de leur fourniture.
[75] Two key decisions guide the Tribunal with regard to “services”: Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 SCR 571 [Gould], of the Supreme Court and Watkin v. Canada (Attorney General), 2008 FCA 170 [Watkin], of the Federal Court of Appeal. The Commission and the Respondent both rightfully cited these decisions.
[76] First, I must clarify that the applicability of section 5 of the CHRA is a legal question, one for the Tribunal to answer given that it is the decision-making body to do so (Gould, at page 589).
[77] In Watkin and Gould, the higher courts instruct that when dealing with a “service”, the Tribunal has to clearly describe and analyze the complained of act, action or activity (see Watkin, at paragraphs 31 and 33; Gould, at paragraphs 16 and 60). This is the first step, defining the essence of the act, action or activity in question. Relying on Gould, the Federal Court of Appeal notes that the “services” referred to in section 5 of the CHRA mean something of benefit being held out as services and offered to the public (Watkin, at paragraph 31).
[78] Now, regarding the facts alleged in Ms. West’s complaint, the parties do not dispute—and no evidence to the contrary was presented—that the 1986 Election Law is the law that governs elections on CLFN territory.
[79] The 1986 Election Law provides for the appointment of an elections officer by the band council and the sitting chief before the nomination meeting is held. The nomination meeting is a meeting for nominating candidates (subsection 8(A) of the 1986 Election Law). It is at this meeting that members become election candidates.
[80] The elections officer has many duties (section 8 of the 1986 Election Law); in short, the elections officer is in charge of the election (subsection 8(F) of the 1986 Election Law). The officer’s other areas of responsibility in managing the election include the nomination meeting, the electors’ list, the processing of appeals and voting dates.
[81] Moreover, the Nation has established eligibility criteria when it created its 1986 Election Law, and it is provided that an individual will be tasked with examining whether a candidate meets these criteria, in the event of protest.
[82] The evidence reveals that this role is vested in the elections officer to ensure that candidates are in fact truly eligible to stand for election in the Nation.
[83] When a person files a protest, they have to do so at the nomination meeting. If the person did not attend that meeting, they have to do so within 48 hours of the meeting (subsection 7(Q) of the 1986 Election Law). Ms. West made some arguments on this subject at the hearing, to which I will return later.
[84] The evidence does indeed reveal that a protest was filed against Ms. West’s nomination. The elections officer, Mr. Allan, was responsible for reviewing the protest.
[85] Mr. Allan, who received the protest, allowed Ms. West to respond to it. He asked her to produce documents to support her eligibility, which Ms. West did by submitting a sworn statement.
[86] On June 25, 2016, the elections officer found that Ms. West did not fulfill the requirement under subsection 5(G) of the 1986 Election Law and that she had not provided the documents needed to establish that she was a direct descendant of original treaty citizens. He therefore rejected her nomination. This decision was appealable internally, and Ms. West appealed it.
[87] This is where Ms. West’s complaint comes into play. This complaint, in the manner in which it was approached by the parties throughout the proceeding, consistently related to section 5 of the CHRA. Allegations of retaliation (section 14.1 of the CHRA) were added—as authorized by the Tribunal—and these will be dealt with in a different section of this decision.
[88] In her initial complaint, received by the Commission in August 2016, Ms. West alleges that she is a direct descendant of original treaty citizens and that she therefore fulfills the requirement under subsection 5(G) of the 1986 Election Law. She clearly described what makes her a direct descendant and how CLFN’s application of the 1986 Election Law discriminated against her by disqualifying her from standing for election.
[89] In both Ms. West’s amended statement of particulars and that of the Commission, the discussion seems to depart slightly from the framework set out in the initial complaint.
[90] First, Ms. West seems to raise a number of shortcomings, a number of flaws, in procedural fairness and compliance with the principles of natural justice by the elections officer in his review of Ms. West’s eligibility. I will deal with these other allegations later in this decision.
[91] Having said that, the Respondent finds that both the Commission and Ms. West attempted to change the focus of the dispute. According to CLFN, the dispute has more to do with the enforcement or application of the 1986 Election Law. It finds that Ms. West is directly challenging the law and its requirements, which, it believes, is not a “service” within the meaning of section 5 of the CHRA (see Matson/Andrews, above).
[92] In this regard, the Respondent drew the Tribunal’s attention to Ms. West’s initial complaint and to the relief sought so that the Tribunal could properly understand the complained of acts in their essence.
[93] Ms. West, however, in her amended statement of particulars, stated that the 1986 Election Law is not only discriminatory but also vague and ambiguous. She asks that the 1986 Election Law be clarified and that it be fair to everyone.
[94] The Commission also referred to this idea of ambiguity, although its argument was not quite the same. It stated that the lack of clarity and the vague terminology gave the elections officer some room for interpretation in his review of the eligibility of Ms. West’s nomination. The Commission argues more specifically that the terms, the expression “direct descendent of original treaty citizens”, are not defined in the law itself. The elections officer therefore had to choose an interpretation and, in the Commission’s opinion, should have chosen the non-discriminatory interpretation.
[95] This is where the Commission comes to the thrust of its argument. It considers “service” from a different angle, believing that the “service” at issue in Ms. West’s complaint is the review or vetting of candidates’ eligibility by the elections officer. In other words, the examination of the Complainant’s eligibility created the “service” between Mr. Adam and Ms. West.
[96] CLFN, as mentioned above, describes the act in question differently. In short, it believes that Ms. West’s complaint is an attack on the 1986 Election Law and that the act in question is not a “service”. Moreover, it states that the application of the law by the elections officer is also not a “service” within the meaning of section 5 of the CHRA.
[97] Clearly, the parties have a different understanding of the very nature of the “service”, that is, the activity or action, in its very essence, that is in question in Ms. West’s complaint. This point is crucial because it is in fact the basis of the analysis (Watkin, at paragraph 31). The Tribunal must determine whether the act in question is a “service” and whether that “service” is customarily available to the general public as described in section 5 of the CHRA. If so, it is necessary for Ms. West to have experienced an adverse impact with respect to the provision of that service by reason of a prohibited ground of discrimination (Moore, at paragraph 33).
[98] Indeed, I believe that the action at issue in this case is not the vetting of nominees by the elections officer, as the Commission claims. Rather, based on the evidence before me and the arguments of the parties, I believe that the action at issue is the elections officer’s rejection, or denial, of Ms. West’s nomination. The rejection is based on a verification as to whether her nomination meets the criteria set out in the 1986 Election Law.
[99] After the elections officer reviewed her eligibility and withdrew her nomination, Ms. West filed her complaint with the Commission, in August 2016. In her complaint, she clearly indicated that she had been discriminated against through the application of the 1986 Election Law when she was declared ineligible to run for election on the grounds that she was not a direct descendant of original treaty citizens.
[100] However, as mentioned above, she confirms that she is a direct descendant of Chief Peh-ye-sis, who signed Treaty No. 6 in 1876. Since her father, William P. Janvier, was adopted by Ms. Cardinal and Mr. Janvier (her grandparents) and since Ms. Cardinal is a descendant of Chief Peh-ye-sis, Ms. West is a direct descendant of original treaty citizens as required under the 1986 Election Law.
[101] It should be noted that the facts of another Tribunal decision, Tanner v. Gambler First Nation, 2015 CHRT 19 [Tanner], are very similar to Ms. West’s allegationsin this complaint. One similar aspect of the complaint in Tanner is that Sharon Tanner alleged that the Gambler First Nation discriminated against her through its creation and application of a rule that persons not having a blood relationship to John Falcon Tanner could not run for election to be a band councillor or chief. The prohibited grounds of race, national or ethnic origin and family status were also raised in Ms. Tanner’s complaint.
[102] In my opinion, although similarities exist between Ms. West’s and Ms. Tanner’s cases, and although the Commission’s arguments closely resemble those in Tanner, there is an important difference between the two complaints. My colleague, member George U. Ulyatt, raised interesting points in paragraphs 41 to 45 of his decision that confirm a fundamental difference from the complaint before me.
[103] Without going into full detail, in Tanner, my colleague accepted the argument that the complainant had indeed experienced adverse impacts from the application of the descent or blood-relationship rule, which prevented her from running for election.
[104] Based on that assumption, he then considered whether the creation and application of the rule was a “service” within the meaning of section 5 of the CHRA (Tanner, at paragraph 41). In this regard, the Commission argued that determining the eligibility of a member of the Nation to run for election, through the creation and application of the election law and the decision-making process of the elections officer, was a “service” provided by the Nation pursuant to section 5 of the CHRA (Tanner, at paragraph 43).
[105] However, in relation to this fundamental issue of “service”, paragraphs 44 and 45 are, in my opinion, critical in terms of the weight to give to the decision in question. Indeed, my colleague considered it necessary to specifically mention that the respondent had made no submissions in response to the Commission’s arguments.
[106] He added that, in his opinion, a legitimate, valid question could be raised as to whether the creation and application of the Gambler First Nation’s election law were essentially a “service” within the meaning of the CHRA. In this regard, he cited the Tribunal’s decisions in Matson and Andrews. He went on to state that he had no argument or evidence to contradict the Commission’s arguments because the respondent had not provided a response. He therefore accepted the Commission’s argument for the purposes of his decision.
[107] Thus, my colleague did not carry out an in-depth analysis of the nature of the act, action or activity in question, in its essence, because he considered that it was unnecessary to do so.
[108] However, in the case of Ms. West’s complaint, the Respondent has defended itself; it has specifically responded to her arguments, and I cannot disregard its response and draw hasty conclusions about the nature of the act in question. It is in this specific context that Tanner must be read. In my opinion, its weight as a precedent is considerably diminished by the particular circumstances of this complaint.
[109] Given this clarification, the issue is whether section 5 of the CHRA can apply to the act in question in this case, while respecting the teachings of the higher courts, particularly in Gould and Watkin.
[110] In this regard, the “service” referred to in section 5 of the CHRA must involve some form of benefit or advantage held out and offered to the public (see Gould at paragraph 55; Watkin at paragraph 31).
[111] It is not the officer who in fact allows candidates to run for election. The elections officer merely determines whether a candidate meets the criteria set out in the 1986 Election Law. Moreover, he or she does so only if so