Meeches v. Wilson

Meeches v. Wilson
Court (s) Database
Federal Court Decisions
Date
2023-09-25
Neutral citation
2023 FC 1289
File numbers
T-1015-22
Decision Content
Date: 20230925
Docket: T-1015-22
Citation: 2023 FC 1289
Ottawa, Ontario, September 25, 2023
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
DAVID MEECHES
Applicant
and
KYRA WILSON, ALLEN DENNIS MYRAN, KEELY ASSINIBOINE, MARVIN
DANIELS, and GARNET MEECHES
Respondents
JUDGMENT AND REASONS
[1] This the judicial review of a decision of the Election Appeal Committee of the Long Plain First Nation [LPFN] denying the appeal brought by the Applicant, David Meeches, who unsuccessfully ran for the office of Chief of the LPFN in the election held on April 15, 2022 [Election].
Background [2] The Applicant is a member of the LPFN.
[3] LPFN elections are governed by the Long Plain First Nation Custom Election Act, as ratified by the Tribal Citizens on August 4, 2017 [Election Act or Act]. The LPFN Tribal Government consists of one Chief and four Councillors elected by the Tribal Citizens. General Elections for these positions are held every four years, on the second Thursday in April (Election Act ss 2.1, 2.2, 2.4, 4.1). In 2022, this fell on April 14, 2022.
[4] The Election Act includes an election timeline and calendar (for the prior 2018 election and the subject 2022 Election) set out in Schedule F of the Act (Election Act, s 5). This includes the pre-election process (Election Act, s 6), which, among other things, encompasses the giving of unofficial pre-election notices and the selection and appointment of an electoral officer and deputy electoral officer (Election Act, ss 6.2 - 6.12).
[5] The electoral officer is responsible for managing and executing pre-electoral, electoral and post-electoral processes and purposes in accordance with the Election Act, which responsibilities are set out in s 6.13.
[6] Jacqueline Meeches was selected and appointed to the position of electoral officer for the 2022 Election [Electoral Officer] on March 3, 2022, together with Krystle Fosseneuve as deputy electoral officer [Deputy Electoral Officer].
[7] The Election Act also establishes an appeal mechanism for election-related appeals. These are divided into “Appeals of Candidacy” (Part 1) and “Election Appeals” (Part 2). The present application concerns the latter.
[8] Section 13.1 describes the composition of the three-person election appeal committee, while section 13.6 describes its duties:
13.6 The Election Appeal Committee is responsible for enforcing this Act in a manner consistent with the Long Plain First Nation Tribal Constitution, receiving, investigating and reviewing submitted appeals in a timely and fair manner in accordance with this Act, and conducting public hearings, where necessary, to make final and binding decisions concerning Appeals of candidacy and Election Appeals.
[9] The election appeal committee selected and appointed for the Election was composed of Bill Beauchamp, as chair [Beauchamp or Chair]; Ruth Roulette; and, Preston Assiniboine [together, the Appeal Committee or Committee].
[10] Part 2, Election Appeals, sets out the grounds for an election appeal, the requirements pertaining to appeal submissions and the procedure to be followed by the Appeal Committee in making a decision. It states as follows:
PART 2 ELECTION APPEALS
Grounds for Election Appeals
13.21 Grounds for an Election Appeal pursuant to this Act are restricted to challenges of successful Candidates or election officials only and include:
a. Material breaches or contraventions of Articles 10.1 and/or 10.2;
b. Voter collusion;
c. Fraud;
d. Material breach or contravention of a rule, process or procedure by election officials;
e. Appeals of Candidacy as set out in Article 13.10; and
f. Any other material breach or contravention of this Act.
Submission
13.22 An Election Appeal submitted to the Election Appeal Committee must:
a. be in writing;
b. set out in writing, being duly signed and witnessed, the reason(s) for the Election Appeal and the facts substantiating the grounds for the appeal;
c. be accompanied by any supporting documentation or evidence; and
d. be accompanied by a non-refundable fee of $100.00 by certified cheque, money order, bank draft or cash to the Long Plain First Nation Finance department and which monies shall be applied toward the costs of the appeal.
If an appeal submission does not comply with the provisions of this Act, the appeal will be immediately dismissed by the Election Appeal Committee.
13.23 The Appellant and the Respondent to an appeal are fully responsible for all costs associated with the Election Appeal. The Long Plain First Nation will not be responsible for any costs, legal or otherwise.
Deadline for Election Appeals
13.24 The deadline for any candidate or Eligible Elector to submit an Election Appeal is by 4:30 p.m. Manitoba local time, within four (4) days after the election.
Procedure
13.25 The Election Appeal Committee shall, upon receipt of an Election Appeal, immediately notify the Electoral Officer and any party named as a Respondent in the appeal in writing.
13.26 Any Respondent to an Election Appeal may submit, within twenty-four (24) hours of the notification, in writing and duly signed and witnessed, their reason(s) outlining why the Election Appeal should be dismissed and the facts substantiating the dismissal of the appeal. The Respondent's submission may be accompanied by any supporting documentation or evidence.
13.27 The Election Appeal Committee shall meet two (2) days after the Election Appeal deadline to determine if there is sufficient evidence to warrant an appeal hearing.
13.28 The Election Appeal hearing, if required, shall be held seven (7) days after the election.
13.29 In a case where the Election Appeal Committee schedules a hearing, the Committee shall immediately send a written notice of the hearing the Electoral Officer and any party named as a Respondent in the appeal and post a notice of the hearing in at least three (3) conspicuous Long Plain entities/businesses and on social media.
13.30 The written notice described in Article 13.29 shall set out:
a. the nature of the hearing and all related particulars;
b. the date, time and location of the hearing; and
c. a statement that the Appellant(s) and Respondent(s), may, at the hearing, make a presentation to the Election Appeal Committee, which may include the presentation of documents, evidence and testimony by witnesses.
13.31 An Election Appeal hearing will take the form of a public hearing consisting of:
a. The Electoral Officer;
b. The Deputy Electoral Officer;
c. The Electoral Ethics Committee;
d. The Appellant;
e. The Respondent;
f. Any Witnesses, if required; and
g. Interested Tribal Citizens as spectators.
13.32 A decision of the Election Appeal Committee shall be irrevocable, binding, and final.
13.33 A decision of the Election Appeal Committee without a hearing shall:
a. be in writing;
b. be provided to the Appellant and Respondent, if any;
c. be posted on the third Thursday of April of the Election year; and
d. be posted at least three (3) conspicuous Long Plain entitles/businesses and social media.
13.34 A decision of the Election Appeal Committee with a hearing shall:
a. be in writing;
b. be provided to the Appellant and Respondent, if any;
c. be posted two (2) days after the date of the hearing; and
d. be posted at least three (3) conspicuous Long Plain entities/businesses and social media.
13.35 After a review of all the evidence received, the Elections Appeal Committee shall:
a. Determine that the grounds put forth in the appeal are either frivolous in nature or are unsubstantiated and dismiss the appeal;
b. Rule that a Respondent is deemed not to have materially breached or contravened the provisions of this Act such that they are ineligible to take office;
c. Rule that a Respondent is deemed to have materially breached or contravened the provisions of this Act such that they are ineligible to take office;
d. Rule that a procedure, rule or process, in accordance with this Act, has been materially contravened or breached such that it affects the fairness of the results of an election or is unconscionable to uphold the results of the election and may declare the election invalid, in whole or in part.
13.36 The Election Appeal Committee must not declare an election invalid by reason only of an irregularity or contravention of this Act if it is satisfied that:
a. the election was conducted in good faith; and
b. the irregularity or contravention did not materially affect the result of the election.
……..
[11] As indicated above, in accordance with the Election Act, the Election was to have been held on April 14, 2022. However, due to a winter storm, the Electoral Officer made the decision to delay opening of the polls until the following day, April 15, 2022. The Election proceeded on that date, and Kyra Wilson [Wilson] was the successful candidate for the office of Chief, having received 12 votes more than the Applicant (an administrative re-count subsequently held on April 20, 2022, reduced the margin separating the two candidates for Chief to 11 votes). Allen Dennis Myran [Myran], Keely Assiniboine [K. Assiniboine], Marvin Daniels [Daniels] and Garnet Meeches [G. Meeches] were the successful candidates for the four Councillor positions.
[12] On April 19, 2022, sometime between 1:30 and 4:00 pm (i.e., prior to the 4:30 pm deadline), the Applicant filed an appeal of the Election. In his appeal, he asserted that:
The previous electoral officer had made statements on her social media account indicating that Tribal Citizens who wished to vote would have to register to vote for all forms of voting – including in person – leading to voter confusion and discouragement in participation in the Election, as the Election Act does not require registration for in-person voting;
The Applicant questioned whether the current Electoral Officer received a proper orientation from the previous electoral officer and whether the Electoral Officer had reached out to the previous electoral officer to determine whether notifications required by s 6.2 of the Election Act had been sent. The Applicant asserted that if the Unofficial Pre-Election Notices were not sent, which would include a registration form as found in Schedule A of the Act, then s 7 of the Election Act, absentee and electronic voting, and s 11, Election Process, were contravened;
On April 12, 2022, Wilson posted unfounded and false allegations against the Applicant on social media, including that he had removed campaign signs and replaced them with his own, and this post was in breach of ss 10.1(a), (c), (d) and (h) of the Election Act;
Scrutineers and supporters of Wilson stood outside the (advance) polling station at the Keeshkeemaquah Conference Centre (also known as the Keesh) on April 12, 2022, and harassed electors to reveal whom they intended to vote for and demanded that they vote for Wilson, in breach of ss 10.2(e) and (f) and s 10.3 of the Act;
The Electoral Officer made an error in judgment in her decision to proceed with the Election on April 15, 2022. That decision was based on major highways reopening after the storm, but it failed to consider that individual lanes (driveways) of Tribal Citizens had not been cleared. This precluded certain Tribal Citizens from exercising their right to vote, affected the candidacy of all candidates and breached ss 6.13(a), (b) and (e) of the Election Act.
[13] The Appeal Committee met that evening and on the following morning, April 20, 2022, to review the Applicant’s appeal (as well as a second appeal that is not the subject of this application for judicial review).
[14] At 11:26 am on April 20, 2022, Bill Beauchamp, as Chair of the Appeal Committee, sent an email to the Electoral Officer attaching copies of the appeals. The email states that “[i]n accordance with Article 13.26 of the Long Plain First Nation Custom Election Act, we ask that you provide a written response to both appeals, in writing, within 24 hours of receiving this email.” Further, that the response should be signed and witnessed, set out the Electoral Officer’s position in response to the specific allegations raised in the appeals and include as an attachment any supporting documentation or evidence. It concluded, “[t]o be clear, we require your written response, signed and witnessed, by no later than Thursday April 21, 2022, at 11:25 am.”
[15] The evidence of the Chair of the Appeal Committee is that, in the meantime, the Appeal Committee continued its review and, at about 1:00 pm, decided that it would dismiss the Applicant’s appeal. This decision was not communicated at that time.
[16] On the evening of April 20, 2022, at 9:56 pm, the Electoral Officer sent a responding text message to the Chair indicating that she had been engaged in conducting a re-recording of the ballots and had not gotten home until 6:30 pm, when she began her review. She requested an extension of time for her response to the two appeals. The Chair responded, “with the tight deadlines we have I am not sure who allows the extension. I will check into it.” He said he would get back to her. On the morning of April 21, 2022, at 8:36 am, the Chair sent a text to the Electoral Officer stating, “the extension you are requesting would be at your call bc you are the electoral officer.” The Electoral Officer responded that she was almost done and that the Appeal Committee would receive her response before the end of the day. At 2:56 pm, the Chair sent a text to the Electoral Officer asking how much more time she would need. The Electoral Officer responded that she was just printing the supporting documents, she would perhaps be done at 4:00 pm, and she could deliver the original. The Chair acknowledged this and asked that the Electoral Officer let him know when she was there.
[17] The Electoral Officer hand-delivered the original of her response to the appeal [Response] to the Chair at about 4:30 pm.
[18] At 5:47 pm, the Appeal Committee sent its decision to the Applicant. The Applicant called the Chair at 5:57 pm. The Applicant’s evidence is that he was told that the appeal was dismissed due to a lack of substantiating evidence and that the Electoral Officer’s Response was not considered because it was not received within the 24-hour Election Act deadline.
[19] The Electoral Officer was sent the decision at 6:37 pm and called the Chair at 6:47 pm. Her evidence is that she asked if the Appeal Committee had considered her Response before its decision was rendered. She was informed by the Chair that it was not considered because it was not included with the Applicant’s appeal.
[20] It is not apparent from the record before me when or if the Appeal Committee made its decision public, by posting, as required by s 13.33 of the Election Act.
[21] On May 18, 2022, the Applicant filed his application for judicial review of the Appeal Committee’s decision. The Notice of Application named Jacqueline Meeches (the Electoral Officer), Krystle Fosseneuve (the Deputy Electoral Officer), Bill Beauchamp, Ruth Roulette, and Preston Assiniboine (the Appeal Committee members) and Kyra Wilson as the Respondents. On October 7, 2022, the Applicant wholly discontinued his application against the Electoral Officer, Deputy Electoral Officer and Appeal Committee members and simultaneously filed an amended Notice of Application which added four new respondents – the four councillors elected in the contested Election – Allen Dennis Myran, Keely Assiniboine, Marvin Daniels and Garnet Meeches. Kyra Wilson is the one remaining original Respondent.
[22] On November 28, 2022, Associate Judge Aalto ordered the Appeal Committee to file a certified tribunal record [CTR] by December 1st. It was received by the Registry on December 6th, 2022, and consists only of the Election Act and a copy of the appeal submitted by the Applicant.
[23] In this application, Kyra Wilson and Allen Dennis Myran [Wilson & Myran Respondents] are represented by Duboff Edwards Schachter Law Corporation and oppose the application.
[24] The Respondent K. Assiniboine is self represented (but was represented by counsel when cross-examined on her affidavit) and opposes the application.
[25] The Respondents Marvin Daniels and Garnet Meeches [Daniels & G. Meeches Respondents] are represented by Chornopyski Law and, unusually, as they are respondents, support the Applicant’s application, agreeing with the Applicant that the Appeal Committee decision should not stand.
Decision Under Review [26] The Appeal Committee stated that the Applicant’s appeal raised the following four grounds:
The previous electoral officer made misleading comments on social media which, in the opinion of the Appellant, "led to voter confusion and ultimately voter discouragement in participation in the General Election." The Appellant was accused of removing the campaign sign of Kyra Wilson and placing his own campaign sign on the property of an individual, without permission. Candidate Kyra Wilson, and others, made this false allegation on social media, and the Appellant alleges that this had a "negative impact" on his candidacy. Scrutineers and supporters of Kyra Wilson stood outside of the polling station on April 12, 2022, and were harassing electors and anyone in general. The election date was moved from April 14 to April 15, 2022, but the Electoral Officer should have delayed the vote until the Public Works Department had the opportunity to clear all lanes.
[27] The Appeal Committee then found as follows:
The Appeal Committee has determined that a hearing is not required and that the matters raised in the Appeal can be determined without an appeal hearing. More specifically, and for the reasons set out below, it is the determination of the Appeal Committee that the Appeal fails to establish a prima facie breach of the Act, such that the Appeal is dismissed.
1st Ground of Appeal
A social media post issued by a former electoral officer, even if misleading, does not violate the Act because the former electoral officer had no authority, and was not an election official, as it relates to the general election that occurred on April 15, 2022 (the "General Election"). Article 13.21(d) of the Act requires that a material breach or contravention of a rule, process or procedure be by an "election official". As it relates to the General Election, the Act makes clear that a new electoral officer would be appointed on the first Thursday in March, 2022. Therefore, for the purposes of the General Election and Article 13.21(d) of the Act, the former electoral officer was not engaged as an election official.
Further, and in any event, the Appeal does not provide any information or evidence, at all, to support that any citizen was actually misled, or that this issue had any impact on the fairness of the General Election or the election outcome.
For the reasons stated above, the Appeal Committee has determined that the 1st ground of appeal, on its face, is unsubstantiated.
2nd Ground of Appeal
The Appeal does not contain sufficient information to establish a prima facie breach of the Act. Specifically, the Appeal does not provide any details of the social media posts complained of and so there is no basis to conclude that those posts breached Article 10.01 of the Act. Further, there is no factual information contained in the Appeal upon which to determine that the social media posts had a negative impact on the Appellant's candidacy, or on the voting results.
For the reasons stated above, the Appeal Committee has determined that the 2nd ground of appeal, on its face, is unsubstantiated.
3rd Ground of Appeal
Article 10.1 and 10.2 of the Act places restrictions on the actions of "Candidates". Article 10.3 of the Act makes clear that Candidates shall not "knowingly or willfully, directly or indirectly through their supporters/advocates" breach any of the campaign rules as set out in Articles 10.1 and 10.2. In order to establish that a Candidate knowingly or willfully breached the obligations owed under Articles 10.1 and 10.2, the evidence must establish that the Candidate knowingly breached the campaign rules directly, or that the Candidate indirectly breached these obligations (knowingly or willfully) through a supporter/advocate. This would require evidence that the Candidate directed or authorized the breach or contravention to occur, so as to be able to draw an inference that the actions of the supporter/advocate are attributable to the Candidate.
The Appeal does not provide any evidence or information to support that the actions complained of were authorized by, or even known to, Kyra Wilson. Candidates are not strictly liable for the actions of their supporters and the Appeal filed by the Appellant fails to provide any information upon which it could be concluded that Kyra Wilson knowingly or willfully allowed these alleged breaches to occur.
For the reasons stated above, the Appeal Committee has determined that the 3rd ground of appeal, on its face, is unsubstantiated.
4th Ground of Appeal
Of significance, the Appellant accepts and agrees that the election originally scheduled for April 14, 2022 had to be adjourned because of the unforeseen snow storm. The Appellant does not take issue with the authority of the Electoral Officer to delay the in-person election voting date. Rather, the Appellant alleges that the vote should have been delayed for a longer period of time.
We accept that the Electoral Officer had the power to adjourn the originally scheduled election voting date from April 14 to April 15, 2022. It is not for this Appeal Committee to scrutinize the correctness of this decision with the benefit of hindsight. Rather, the issue is whether the decision of the Electoral Officer was reasonable in all of the circumstances, and consistent with the Electoral Officer's obligations under the Act. The Act states that the General Election must happen on the second Thursday of April, and so it is understandable that any required delays in the holding of the election would be as short as possible.
While we have carefully reviewed and considered the information and allegations advanced by the Appellant, we find that the decision was reasonable and consistent with the Act.
In summary and for the reasons stated above, the Appeal is denied.
Issues and Standard of Review [28] The issues arising in this application for judicial review are:
Preliminary Evidentiary Issues;
Did the Appeal Committee breach the duty of procedural fairness owed to the Applicant?
Was the Appeal Committee’s decision reasonable?
[29] The parties submit that issues of procedural fairness are to be reviewed on a correctness standard. I agree (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). In Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR], the Federal Court of Appeal held that the required reviewing exercise is best – albeit imperfectly – reflected in the correctness standard. The Court is to determine whether the proceedings were fair in all of the circumstances (CPR at paras 54-56; see also Watson v Canadian Union of Public Employees, 2023 FCA 48 at para 17).
[30] The parties also agree, as do I, that reasonableness is the standard of review applicable to the merits of the Election Committee’s decision (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 23, 25 [Vavilov]). “A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision…” (Vavilov at para 99).
Preliminary Evidentiary Issues [31] Extensive evidence has been filed in this matter, with some duplication of materials between the parties’ records.
[32] The Applicant has filed:
Affidavit of David Meeches sworn on October 17, 2022 [Applicant’s Affidavit];
Affidavit of Jacqueline Meeches sworn on October 20, 2022 [Electoral Officer’s Affidavit];
Affidavit of Krystle Fosseneuve affirmed on October 18, 2022 [Deputy Electoral Officer’s Affidavit];
Affidavit of Chris Yellowquill affirmed on October 17, 2022 [Yellowquill Affidavit];
Supplemental Affidavit of Jacqueline Meeches sworn on December 22, 2022 [Electoral Officer’s Supplemental Affidavit];
Transcript of the Cross-Examination of Kelly Assiniboine conducted on March 2, 2023 [K. Assiniboine Cross Examination];
Transcript of the Cross-Examination of William Beauchamp conducted on March 3, 2023 [Beauchamp Cross Examination];
Transcript of the Cross-Examination of Kyra Wilson conducted on March 3, 2023 [Wilson Cross Examination];
Transcript of the Cross-Examination of Allen Dennis Myran conducted on March 3, 2023 [Myran Cross Examination];
Certified Tribunal Record dated December 1, 2022 [CTR].
[33] The Wilson & Myran Respondents filed:
Affidavit of Kyra Wilson affirmed on January 27, 2023 [Wilson Affidavit];
Affidavit of Allen Dennis Myran affirmed on January 27, 2023 [Myran Affidavit];
Affidavit of Bill Beauchamp affirmed on January 30, 2023 [Beauchamp Affidavit];
Transcript of Cross-Examination of David Meeches conducted on March 1, 2023 [Applicant Cross Examination];
Transcript of Cross-Examination of Jacqueline Meeches conducted on March 2, 2023 [Electoral Officer Cross Examination];
Transcript of Cross-Examination of Krystle Fosseneuve conducted on March 2, 2023 [Deputy Electoral Officer Cross Examination];
Transcript of Cross-Examination of Marvin Daniels conducted on March 1, 2023 [Daniels Cross Examination];
Transcript of Cross-Examination of Garnet Meeches conducted on March 1, 2023 [G. Meeches Cross Examination]; and
Transcript of Cross-Examination of Christopher Yellowquill conducted on March 1, 2023 [Yellowquill Cross Cross-Examination];
[34] The Daniels & Meeches Respondents filed:
Affidavit of Garnet Meeches sworn on December 29, 2022 [G. Meeches Affidavit];
Affidavit of Marvin Daniels sworn on December 29, 2022 [Daniels Affidavit];
K. Assiniboine Cross Examination;
Beauchamp Cross Examination;
Wilson Cross Examination;
Myran Cross Examination; and
CTR.
[35] The Respondent K. Assiniboine filed:
Affidavit of Keely Assiniboine affirmed on February 22, 2023 [K. Assiniboine Affidavit].
[36] The Applicant initially served and filed his Affidavit, the Electoral Officer’s Affidavit, the Deputy Electoral Officer’s Affidavit, the Yellowquill Affidavit as well as affidavits of Myrna Assiniboine and Dale Myran. The Wilson & Myran Respondents raised concerns regarding these latter two affidavits at a case management conference held in December 2022. A partial agreement followed which resulted in Associate Judge Coughlan issuing an Order on December 19, 2022, that the Applicant would withdraw the affidavits of Myrna Assiniboine and Dale Myran and serve a supplemental affidavit of the Electoral Officer, and that the hearing of a motion to strike by the Wilson & Myran Respondents would be deferred to the hearing.
i. Wilson & Myran Respondents’ motion to strike [37] The Wilson & Myran Respondents’ motion is now before me. Therein, those respondents seek to strike out the following evidence:
Affidavit Evidence
Applicant’s Affidavit at paras 14 in part, 15 in part and Exhibits E, F and G in their entirety;
Electoral Officer’s Affidavit at paras 5, 14, 16, 17, 19 in part, 20 in part, 21, 22, 24, 25, 27, 28 and Exhibits D, E and G in their entirety;
Electoral Officer’s Supplemental Affidavit at para 6 in part and Exhibit D in its entirety;
Deputy Electoral Officer’s Affidavit at para 9 and Exhibit B in its entirety; and
Yellowquill Affidavit at paras 3, 6 in part, 7 and Exhibit A in its entirety.
Cross-Examination Evidence
Applicant’s Cross Examination at page 33 line 4 to page 42 line 13 and page 19 line 23 to page 20 line 4;
Electoral Officer’s Cross Examination at page 27 lines 5-6 in part, page 32 lines 24-25 in part and page 49 line 16 to page 61 line 7;
Deputy Electoral Officer’s Cross Examination at page 15 line 10 to page 28 line 15;
Yellowquill Cross Examination at page 3 line 10 to page 4 line 3, page 4 lines 4-25 and page 5 line 4 to page 10 line 25; and
Beauchamp Cross Examination at page 33 lines 8-14, page 36 line 3 to page 38 line 9 and page 40 line 14 to page 42 line 8.
Wilson & Myran Respondents’ Position [38] The Wilson & Myran Respondents assert that their motion raises two issues. First, whether evidence that was not submitted to the Appeal Committee, or considered by it, should be struck from the record. Second, whether hearsay and opinion evidence should be struck from the record. They submit that it is uncontested that the Appeal Committee made its decision without reviewing the Electoral Officer’s Response and that what is at issue is whether the Applicant can, without motion, rely on “fresh evidence” that was not before the Appeal Committee to challenge the merits of the decision.
[39] The Wilson & Myran Respondents refer to Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 17-20 [Access Copyright]; Delios v Canada (Attorney General), 2015 FCA 117 at para 42 [Delios]; Chowdhury v Canada, 2022 FC 1449 at para 25; David Suzuki Foundation v Canada (Health), 2018 FC 379 at para 36; Re Keeprite Workers' Independent Union et al and Keeprite Products Ltd, 1980 CanLII 1877 (ON CA), 29 OR (2d) 513 at para 12 for the general rule that the evidentiary record before the Court on judicial review is restricted to the evidentiary record that was before the administrative decision-maker, with certain limited exceptions. They submit that the Applicant’s evidence that was not before the Appeal Committee does not fall within any of the exceptions and should be struck out.
[40] The Wilson & Myran Respondents particularly take issue with the Electoral Officer’s Response, which was submitted to, but not considered by, the Appeal Committee and assert that the Applicant seeks to rely on the Response to introduce new evidence of inappropriate conduct, harassing behaviour, security issues and ballot tampering. They also assert that the Response was “improper and inadmissible” before the Appeal Committee, as the Election Act limits the evidence of respondents to an appeal to why the appeal should be denied, not why it should be allowed. Further, that judicial review is not an opportunity to correct a deficient appeal (citing Kelley Estate v Canada (Attorney General), 2011 FC 1335 at para 13; Chopra v Canada (Treasury Board), 168 FTR 273, 1999 CanLII 8044 (FC) at para 9).
[41] As to hearsay, the Wilson & Myran Respondents refer to Rule 81(1) of the Federal Courts Rules, SOR/98-106 [Rules]. They also submit that the hearsay at issue goes to controversial issues like alleged ballot tampering, harassment of voters and the validity of the Election. The witnesses to these alleged events are not affiants or parties to this application, and there was no opportunity to cross-examine or test their evidence. The Wilson & Myran Respondents submit that they will suffer prejudice if this evidence is admitted (citing Rainy River First Nations v Bombay, 2022 FC 1434 at paras 35 and 40 [Rainy River]).
[42] Further, they submit that the Electoral Officer, Myran and Yellowquill evidence may also be struck out on the basis that it contains opinion evidence.
Applicant’s Position [43] The Applicant is prepared to withdraw paragraph 15 of his Affidavit, in part, and specifically Exhibit F, being the Electoral Officer’s Response, because this is more properly contained in the Electoral Officer’s Supplemental Affidavit, where it is attached as Exhibit D. The Applicant is also prepared to withdraw page 33 line 4 to page 42 line 13 of the Applicant Cross Examination.
[44] Beyond this, the Applicant submits that the challenged evidence falls within the exceptions to the general rule that the evidentiary record before the Court on judicial review is restricted to the record that was before the decision-maker. Specifically, that it provides context and background information necessary for understanding the issues and to bring attention to the procedural defects that cannot be found in the CTR. The Applicant submits that the Electoral Officer’s Affidavit and Supplemental Affidavit provide background information relating to the allegations set out in his appeal. The Electoral Officer’s Response, according to the Applicant’s submissions, provides background information and will “fix a procedural defect,” as the Response was improperly not included in the CTR, rendering it incomplete. The Response also includes the Facebook post made by Wilson referred to in the Applicant’s appeal and based on which the Applicant asserted that an unfounded allegation against him was posted on social media in violation of the Election Act. The Applicant submits that this evidence is necessary to provide general background information to illustrate the content of the social media post, which the Applicant did not have access to when filing his appeal.
[45] Further, the Applicant submits that Exhibit F of the Electoral Officer’s Affidavit, a social media post entitled “Official Announcement” advising the opening of polls on April 14, 2022, was postponed due to the winter storm, and the Yellowquill Affidavit provide general background information about the storm and that his appeal provided significant information about the impact of the storm. Similarly, the Deputy Electoral Officer’s Affidavit at paragraph 9 and Exhibit B, which address five messages from Tribal Citizens who were unable to vote due to the storm, is general background information and is not new in substance.
Other Respondents’ Positions [46] Neither the Daniels and G. Meeches Respondents nor the K. Assiniboine Respondent made submissions in response to the motion to strike.
Analysis [47] In Access Copyright, Justice Stratas pointed out that in determining the admissibility of an affidavit in support of an application for judicial review, the differing roles played by the Court and the administrative decision-maker must be kept in mind (at para 14). Parliament gave the administrative decision-maker, and not the Court, jurisdiction to determine certain matters on their merits. Because of this demarcation of roles, the Court cannot allow itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before a reviewing Court on judicial review is restricted to the evidentiary record that was before the decision-maker. Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Access Copyright at paras 14-19).
[48] The recognized exceptions are an affidavit that: provides general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review, but does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker; brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker so that the Court can fulfill its role of reviewing for procedural unfairness; or highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding (Access Copyright at para 20; see also Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 19-25 [Bernard]; and Delios at para 45).
[49] In Delios, Justice Stratas stated, with respect to the general background exception:
[44] Under this exception, a party can file an affidavit providing “general background in circumstances where that information might assist [the reviewing court to understand] the issues relevant to the judicial review”: Access Copyright, above at paragraph 20(a).
[45] The “general background” exception applies to non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker. In judicial reviews of complex administrative decisions where there is procedural and factual complexity and a record comprised of hundreds or thousands of documents, reviewing courts find it useful to receive an affidavit that briefly reviews in a neutral and uncontroversial way the procedures that took place below and the categories of evidence that the parties placed before the administrator. As long as the affidavit does not engage in spin or advocacy ‒ that is the role of the memorandum of fact and law ‒ it is admissible as an exception to the general rule.
[46] But “[c]are must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider”: Access Copyright, above at paragraph 20(a).
a) Electoral Officer’s Response and related evidence.
[50] In this matter, the most contentious piece of evidence is the Electoral Officer’s Response. I pause here to note that the Response is found in the Applicant’s Affidavit paragraph 15, Exhibit F; the Electoral Officer’s Supplemental Affidavit paragraph 6, Exhibit D; and the Beauchamp Affidavit paragraph 19, Exhibit E. After the hearing, it came to my attention that, although all three versions contain the 12-page (including covering letter) written response, there is a difference in the documents attached to the written response. The version attached to the Applicant’s and the Electoral Officer’s version contains 19 pages of attachments, while the version attached to the Beauchamp Affidavit contains 58 pages of attachments. Given the references to attached material in the written portion of the Response, it seemed likely that the Beauchamp Affidavit attaches a complete copy of the attachments to the written portion of the Response. By direction dated September 15, 2023 I requested the parties to confirm, by September 15, 2023, that the Beauchamp Affidavit attaches a complete copy of the attachments to the Response. A letter dated September 20, 2023, sent with the consent of all parties, confirmed this to be the case.
[51] The fact that the Appeal Committee requested that the Electoral Officer provide a response to the Applicant’s appeal, that she did so, and that the Appeal Committee received the Response before it communicated its decision to the Applicant and the Electoral Officer is not in dispute. Indeed, the Beauchamp Cross Examination evidence (the admissibility of portions of which is open to question, as discussed below) is that the decision had been made by the Appeal Committee at about 1:00 pm on April 20, 2022 – before Beauchamp sent his texts to the Electoral Officer pertaining to her request for an extension of time to submit her response. Further, although the Response was received at about 4:30 pm on April 21, 2022, the Appeal Committee did not review it prior to communicating the previously made decision to the Applicant (at 5:47) and the Electoral Officer (at 6:37 pm).
[52] Rule 317 of the Federal Court Rules addresses materials in the possession of a tribunal:
317(1) Material from a Tribunal – A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing written request, identifying the material requested.
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