Source text

Grey v. Whitefish Lake First Nation
Court (s) Database
Federal Court Decisions
Date
2020-10-02
Neutral citation
2020 FC 949
File numbers
T-174-19
Decision Content
Date: 20201002
Docket: T-174-19
Citation: 2020 FC 949
Ottawa, Ontario, October 2, 2020
PRESENT: Madam Justice Strickland
BETWEEN:
JAMES GREY
Applicant
and
WHITEFISH LAKE FIRST NATION #459
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of the decision of the Election Appeal Arbitrator [Arbitrator], with respect to an appeal [Appeal] by the Applicant, James Ian Bennett Grey, of the election of Albert J. Thunder as Chief of the Whitefish Lake First Nation #459 [WLFN] at the WLFN general election held on April 13, 2018 [Election]. The Arbitrator dismissed the Appeal and affirmed the election of Albert Thunder as Chief of the WLFN.
Factual background
[2] On March 9, 2019, Mr. Garry Laboucan, of the law firm Ackroyd LLP, sent a letter to Mr. Drew Jarisz, of Taylor Janis LLP, to confirm that Mr. Jarisz had been retained by the WLFN to act as the Appeal Arbitrator for the election to be held on April 13, 2018. The letter states that Mr. Jarisz’s job would be to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations of the Whitefish Lake First Nation #459 [WLFN Election Regulations]. It also attaches a copy of the March 8, 2018 Band Council Resolution confirming the appointment. The Band Council Resolution states that then Chief and Council appointed Drew Jarisz as the Appeal Arbitrator to supervise and ensure that any appeals from the General Election, By-Election or Run-off Election are conducted in accordance with the WLFN Election Regulations and the rules of natural justice. The same Band Council Resolution appointed Mr. Lorne Ternes as the Electoral Officer for the upcoming Election.
[3] The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief with 254 votes, winning by a margin of 70 votes over Jesse Grey, the incumbent Chief, who came fourth in the election with 184 votes. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the WLFN Election Regulations.
[4] The Applicant filed a Notice of Appeal challenging the election of Albert Thunder on three grounds:
- A candidate who ran in the election, Jesse Grey, was ineligible to run and provided false information or failed to disclose information relevant to the Nomination. Specifically, that Jesse Grey was convicted of an indictable criminal offense as of the date of his nomination and did not receive an eligible pardon;
- A candidate, Jesse Grey, was guilty of Corrupt Election Practices (as defined in the WLFN Election Regulations) or benefited from and consented to a Corrupt Election Practice. Specifically, that he allegedly paid the travel expenses of Cindy or George Grey on the condition that they disclose that they had voted for Jesse Grey;
- Other circumstance, event or action which improperly, and directly affected the conduct and outcome of the Election, being the violation of ballot secrecy. Specifically, that George Grey violated the secrecy of the ballot by showing a picture of his ballot to Jesse Grey.
[5] For the reasons set out in his decision, the Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief.
[6] The Applicant filed a Notice of Application on January 23, 2019, commencing this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application for judicial review is the Applicant’s assertion that Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserts that he had no knowledge of the circumstances giving rise to these allegations prior to the hearing of the Appeal.
Arbitrator’s Decision
[7] The Election Appeal hearing was held on May 8, 2018. The Applicant and the WLFN introduced evidence through witnesses and made oral submissions. Jesse Grey made submissions on his own behalf. On behalf of the Applicant, Elise Laboucan made submissions regarding Jesse Grey’s alleged prior criminal conviction and George and Cindy Grey made submissions regarding the alleged vote buying and the revealing of George Grey’s ballot.
[8] As to the allegation that George Grey violated the secrecy of his ballot by voluntarily showing a picture of it to Jesse Grey after George Grey had voted, the Arbitrator found that no evidence or arguments were advanced that this alleged breach of secrecy affected the outcome of the election, and dismissed the ground of appeal pursuant to ss 16.17.1 and 16.17.2 of the WLFN Election Regulations.
[9] The Arbitrator also found that the Applicant had not established on a balance of probabilities that Jesse Grey was ineligible to run for Chief in the Election. The Arbitrator identified the evidence before him on the issue, being a statutory declaration of Jesse Grey stating that he had never received pardon for any indictable offence; a non certified criminal record check dated January 30, 2018 showing no criminal record, which the Arbitrator accepted as valid; a finger print record check dated March 10, 2014, which the Arbitrator also accepted as valid; and, the oral testimony of Jesse Grey and of Elise Laboucan. The evidence of Elise Laboucan was that she believed that Jesse Grey had been convicted of rape because, decades ago, her family was told this by the purported victim’s family and that information had subsequently been conveyed to Ms. Laboucan by her mother. The Arbitrator found Ms. Laboucan’s evidence to be hearsay and unreliable. He concluded that the evidence overwhelmingly demonstrated that there were no reasonable grounds to believe that Jesse Grey was ineligible to participate in the Election due to a past conviction for an indictable criminal offence. The Arbitrator denied that ground of appeal pursuant to s 16.17.1 of the WLFN Election Regulations.
[10] As to the allegation of Corrupt Election Practices, the Arbitrator described the evidence of George Grey (who is Jesse Grey’s cousin) and his wife Cindy Grey, as well as Jesse Grey’s version of events – which differed significantly from that of George and Cindy Grey. The Arbitrator noted that Jesse Grey admitted giving a sandwich and $200 to George Grey and $150 to Roberta Grey when they came to his house after the election at which time George Grey requested help and said that he was hungry. Further, that Jesse Grey’s evidence was that this money was for travel and food, not in exchange for votes. The Arbitrator noted that George Grey had changed aspects of his evidence under cross-examination and that his animosity towards Jesse Grey was “palpable at the hearing”. George Grey testified that Jesse Grey in his previous role as Chief, and the then Council had promised him a house to live in, which did not materialize. George Grey blamed Jesse Grey, as former Chief, for this as well as for rapists, drug addicts and killers being on the reserve. He also testified that he was coming forward to testify at the hearing because he had not been given a house and because Jesse Grey had accused him of being a liar. Roberta Grey did not give evidence. Ultimately, the Arbitrator preferred the evidence of Jesse Grey. The Arbitrator found that the evidence was not sufficient for him to conclude, on a balance of probabilities, that Jesse Grey offered money in exchange for votes. The Arbitrator denied this ground of appeal pursuant to s 16.17.1 of the WLFN Election Regulations.
[11] The Arbitrator found, in the alternative, that if Mr. Jesse Grey did offer money in exchange for votes then on the evidence before the Arbitrator it could only be reasonably concluded that there were two impugned votes, which was less than the plurality of the victory. He would therefore uphold the results of the Election under s 16.17.2 of the WLFN Election Regulations.
Legislation
[12] The relevant sections of the WLFN Election Regulations are contained in Annex A of these reasons.
Issues and standard of review
[13] In my view, the issues identified by the parties can be framed as follows:
Was there a reasonable apprehension of bias on the part of the Arbitrator?
Are there reviewable errors arising from the Arbitrator’s assessment of the evidence and analysis?
[14] As to the standard of review, the Applicant submits that the standard of review on the issues of bias and lack of independence, which relate to procedural fairness, is correctness (Temate v Canada (Attorney General), 2018 FC 1004 at para 18). Alternatively, if no standard of review applies, than the question is whether the procedure was fair in all of the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR]). Further, that questions regarding substantive review attracts the standard of reasonableness (Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 at para 23 [Vavilov]). The Respondent relies on CPR with respect to the first issue and submits that the standard of review when weighing the evidence is reasonableness.
[15] In my view it is clear that the standard of review for questions of procedural fairness, which encompasses issues of bias, is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission Institution v Khela, 2014 SCC 24 at para 79; Johnny v Adams Lake Indian Band, 2017 FCA 146 at para 19; Nadeau v. Canada (Attorney General), 2018 FCA 203 at para 11 [Nadeau]; Hill v Oneida Nation of the Thames Band Council, 2014 FC 796 at para 45). And, as stated by the Federal Court of Appeal in Oleynik v Canada (Attorney General), 2020 FCA 5 [Oleynik FCA] at para 39, referencing its decision in CPR at para 54, judicial review for procedural fairness is “best reflected in the correctness standard”. No deference is afforded to the underlying decision maker on questions of procedural fairness (Del Vecchio v Canada (Attorney General), 2018 FCA 168 at para 4).
[16] The standard of review otherwise applicable in this matter is the presumptive standard of reasonableness (CPR at para 8; Vavilov at paras 16-17). A review for reasonableness requires this Court to ask if 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).
Issue 1: Was there a reasonable apprehension of bias on the part of the Arbitrator?
[17] The Applicant asserts three circumstances that give rise to a reasonable apprehension of bias: ex parte communications and a lack of separation between the Arbitrator and Ackroyd LLP, WLFN’s counsel; the marital relationship between the Arbitrator and a member of Ackroyd LLP; and a prior retention of the Arbitrator by WLFN.
i. Ex parte communications and lack of separation
Applicant’s position
[18] Ackroyd LLP is legal counsel for WLFN. The Applicant submits that Ackroyd LLP had numerous communications with the Arbitrator without the Applicant’s knowledge or involvement. These communications give rise to a reasonable apprehension of bias as they suggest that one party, the WLFN, is favoured or has some relationship with the decision maker, the Arbitrator.
[19] Further, that there was a complete failure to maintain any degree of separation between the Arbitrator and Ackroyd LLP. The Applicant submits that Ackroyd LLP had previously retained the Arbitrator on behalf of WLFN on another matter and had worked actively with him on that matter. Ackroyd LLP were then “the party” that appears to have appointed the Arbitrator with respect to the Election Appeal, contrary to jurisprudence that has held that a party should not be required to present its case before a tribunal whose members have been appointed by an opposing party.
Respondent’s position
[20] The Respondent submits that there is an exception to the requirement of independence when the enabling statute permits an overlap in functions (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 [Ocean Port] at para 42). To the extent that the overlap is authorized, it will generally not be subject to the reasonable apprehension of bias doctrine (Brosseau v Alberta (Securities Commission), [1989] 1 SCR 301 at 310-311). In this case, section 7.1 of the WLFN Election Regulations authorizes WLFN to appoint an election appeal arbitrator, even though WLFN will be called upon to respond to an appeal. Further, to the extent that the ex parte communications identified by the Applicant were not specifically authorized by the WLFN Election Regulations, they were administrative in substance and, in the circumstances, were necessary in light of institutional constraints. The communications did not address issues that impacted the substance of the case and did not give rise to a reasonable apprehension of bias.
Analysis
[21] The test for whether there is a reasonable apprehension of bias has been broadly accepted as that stated by Justice Grandpre in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
(see also Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para 20-21 [Yukon].)
[22] The issue of bias is inextricably linked to the need for impartiality. Decision makers are required to approach every case with impartiality and an open mind (Yukon at para 22) and to decide the case independently (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at para. 22 [Cojocaru]). Impartiality and independence are also assessed using the reasonable apprehension of bias test.
[23] There is a strong presumption of impartiality that is not easily displaced and the “test for a reasonable apprehension of bias requires a ‘real likelihood or probability of bias’ and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per Cory J.” (Yukon at para 25). Further:
[26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.):
… allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]
(Yukon at para 26)
[24] The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (Attorney General), 2020 FCA 5 at para 57; Yukon at paras. 25-26).
[25] The Applicant claims a reasonable apprehension of bias based on his assertion that lawyers with Ackroyd LLP had “numerous communications” with the Arbitrator without the Applicant’s knowledge and that Ackroyd LLP “appears to have worked extensively” with the Arbitrator in discharging his functions in the period leading up to the appeal. In support of this position, the Applicant points to the following communications:
June 10, 2017 – email from Anita Thompson of Ackroyd LLP to Drew Jarisz concerning a WLFN Agricultural Benefit Settlement Referendum Vote. The email advises that Ackroyd LLP is retaining Mr. Jarisz as a Deputy Assistant to the Ratification Officer for the WLFN Ratification Vote to be held on June 14 and 15, 2017, sets out his responsibilities and that he will be paid a flat rate of $3500 and traveling expenses;
March 9, 2018 – letter from Garry Laboucan of Ackroyd LLP to Drew Jarisz regarding the WLFN Election. This letter advises that it serves to confirm that Mr. Jarisz has “been retained by the Whitefish Lake First Nation to act as their Appeal Arbitrator” for their upcoming election to be held on April 13, 2018 and that Mr. Jarisz is to supervise and ensure that any appeals from the election are conducted in accordance with the WLFN Election Regulations. It attaches a copy of the Band Council Resolution appointing Mr. Jarisz as Arbitrator and appointing Lorne Ternes as the Election Officer;
April 17, 2018 – email from Lorne Ternes to Drew Jarisz, the Band Manager (Mabel Noskey), [email protected], Yvonne Noskey; and Garry Laboucan concerning the Appeal. This email states that it attaches a PDF package (including the Notice of Appeal) that the Election Officer mailed out that morning to the Arbitrator, the Band Manager, the candidates for Chief and the Applicant advising that the Applicant had appealed the election of Albert Thunder. The email further states that after the appeal period closed the Election Officer would get someone, possibly Yvonne Noskey, to post it. The Election Officer also asks Mabel Nokey and Lori if the Arbitrator could give the appeal fee to Yvonne Noskey to deliver to WLFN and if the Election Officer can deliver the election record to the Arbitrator on Thursday;
April 17, 2018 – email from Drew Jarisz to Lorne Ternes, the Band Manager, [email protected], Yvonne Noskey and Garry Laboucan responding to the Election Officer’s email above and confirming that delivery of the election record on Thursday would be fine. The Arbitrator also asks the Election Officer where he proposed posting the Notice of Appeal and, in that regard, if Yvonne/Lorne/Garry could reply listing the prominent public places on the reserve;
April 17, 2018 – email from Lorne Ternes to Drew Jarisz, cc’d to Band Manager, [email protected], Yvonne Noskey; and Garry Laboucan, responding to the email above and advising that usually WLFN requires posting at the Band Office, the Health Office, the school and at two identified convenience stores;
April 18, 2018 – email from Drew Jarisz to Band Manager, [email protected] and Garry Laboucan, copied to Lorne Ternes and Yvonne Noskey, concerning the Appeal. This states that Mr. Jarisz, as the Arbitrator, would like to set the first appeal date for April 30th, to hear any other appeals on the following consecutive days and to allocate one day to deal with each appeal. He asks if WLFN has an issue with the proposed dates and states that in the interests of fairness and transparency, the hearings would be open to members of WLFN.As to venue, the Arbitrator states that he did not know how many people would attend or where on or near the reserve would be an appropriate place to hold the hearing. As he understood Garry/Mabel to have coordinated similar events in the past, he asks if they could propose a suitable venue for the appeal hearing.The Arbitrator notes that a record of the hearing would be needed and that witnesses should be sworn in. He states that he did not know how WLFN had dealt with this in the past but, to his mind, a court reporter could accomplish this. He indicates to Garry Laboucan that he understood that Ackroyd LLP would coordinate this once the hearing dates were firmed up.He also advises Mabel Nosley, the band manager, that once the number of appeals and venue were confirmed that the Arbitrator would provide her with a Notice of Hearing which would need to be mailed to all candidates and be posted at the public places on the reserve, including the Band Office, the Health Office, the school and the two convenience stores on or before April 21, 2018;
April 18, 2018 – email from Drew Jarisz to Albert Thunder, copied to Lorne Ternes, Garry Laboucan and Band Manager. The email responds to questions posed to the Arbitrator by Albert Thunder about the Appeal. It states that the grounds for the Appeal are set out in s 16(1) of the WLFN Election Regulations. The Arbitrator notes that because the Arbitrator’s role is that of an independent arbitrator, beyond that explanation, and outside of a hearing, he could not discuss the specific interpretation of any provisions of the regulations with any individual who may be affected by a decision the Arbitrator would render. However, the Arbitrator copied Garry Laboucan to the email, indicating that as counsel for WLFN, Mr. Laboucan would be in a better position to discuss the matter;
April 19, 2018 – email from Lorne Ternes to Angeline Thunder, Lorne Ternes, Drew Jarisz and Garry Laboucan. The Electoral Officer asks Angeline Thunder to print and then post the attached Notice of Appeal at the locations indicated in the above emails and asks Garry Laboucan if he could also make sure his was followed up;
April 19, 2018 – email from Drew Jarisz to Lorne Ternes responding to the above and asking for confirmation that the Notice of Appeal had been posted and if it had been mailed to all of the candidates as required by s 16.6 of the WLFN Election Regulations.The reply email of the same date from the Electoral Officer, copied to Angeline Thunder, Garry Laboucan and Lorne Ternes, states that Yvonne Noskey was then driving to Whitefish to post the Notice of Appeal and would email pictures to the Electoral Officer. And, that on the day before, the Electoral Officer had mailed the Notice to all candidates, the band manager and the Arbitrator;
April 20, 2018 – email from Drew Jarisz to Yvonne Noskey, Garry Laboucan, [email protected] and Band Manager attaching the Notice of Hearing for the Applicant’s appeal, noting that this was being emailed to the candidates and must be posted at the places previously identified by 5:00 pm on Saturday April 21, 2018. The Arbitrator states that he understands that Yvonne Noskey will be doing the posting and Mabel, the band manager, may be assisting. He asks for confirmation that the hearing is posted by return email and that he be provided with picture confirmation asap. He also asks that Garry Laboucan confirm that this will be done and to contact the Arbitrator if there are any issues; and
May 7, 2018 – letter from John Kudrinko of Ackroyd LLP to the Arbitrator advising that Ackroyd LLP is counsel for WLFN with respect to the Applicant’s Appeal and providing WLFN’s written submissions.
[26] I would first note that the March 9, 2018 letter from Garry Labuocan of Ackroyd LLP to Drew Jarisz regarding Mr. Jarisz’s appointment as Arbitrator for the upcoming Election is not fairly characterized as an ex parte communication between a party and a decision maker. The letter specifically states that the Arbitrator is retained by the WLFN to act as their appeal arbitrator. The appointment by the WLFN is demonstrated by the attached Band Council Resolution. Further, s 7.1 of the WLFN Election Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution:
7.1 Appointment
At least thirty five (35) days prior to the date selected as the Election day, the Council shall, by Resolution in the prescribed form set the date of the Election, appoint and Electoral Officer and an Election Appeal arbitrator for the purpose of conducting the Election pursuant to these Regulations.
[27] Thus, the WLFN Election Regulations authorize WLFN Council to appoint an election appeal arbitrator by way of band council resolution, and that process was followed in this case.
[28] To the extent that the Applicant is asserting that the appointment process lacked independence and was procedurally unfair because the WLFN Council appointed the Arbitrator and, in this case, WLFN was also called upon to respond to the Appeal, I note that the Applicant has not challenged the validity of s 7.1 on the basis that it is procedurally unfair. Further, the Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. And, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication, “[i]t is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question” (Ocean Port at paras 19-21). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131 at paras 52 - 55).
[29] Accordingly, as s 7.1 of the WLFN Election Regulations permits WLFN Council to appoint an appeal arbitrator, the appointment of the Arbitrator by WLFN Chief and Council in this case does not give rise to a reasonable apprehension of bias. Nor does the mere fact that the notification of the appointment was conveyed to the Arbitrator by legal counsel for WLFN. Further, as will be discussed below, the appointment letter does not address the substance of the Applicant’s Appeal. Indeed, it was sent before the Election was even held and, therefore, before any appeals stemming from the Election could arise.
[30] The remainder of the above communications pertain primarily to the practicalities of the administration of the Appeal. In particular, giving notice and posting of the Appeal, setting an Appeal hearing date and determining a suitable place for the hearing to be held, and communicating this information to WLFN members.
[31] The parties rely on differing case law in support of whether or not ex parte communications regarding administrative or procedural aspects of the Appeal give rise to a reasonable apprehension of bias.
[32] The Applicant refers to Setlur v Canada, [2000] 193 FTR 104 (FCA). In Setlur, the Federal Court of Appeal found that there was a reasonable apprehension of bias on behalf of the Chairperson of the Public Service Commission of Canada. I note that in reaching its conclusion the Federal Court of Appeal considered not only ex parte communications, but also the Chairperson’s uneven treatment of requests for hearing tapes, and the fact that counsel for Revenue Canada agreed, given the circumstances, the Chairperson should recuse herself but that the Chairperson had not engaged with those submissions.
[33] The following ex parte communications were at issue in Setlur. First, the Chairperson initiated a phone conversation with Ms. Fox, a human resources advisor who was then representing Revenue Canada, to coordinate rescheduling for hearing dates. During that conversation, Ms. Fox raised concerns that she and the Selections Board Chairperson, Mr. Tkaczk, had about “the tone of the hearing, the manner in which the appellant’s allegations were being presented, and attacks upon [Selection Board Chairperson] integrity”. The Chairperson undertook to raise those concerns when the hearing resumed, which she did. At that point Ms. Fox did not speak to her concerns and appellant’s counsel expressed that he would have expected Ms. Fox to have discussed any concerns that she had with the proceedings directly with him. Subsequently, Mr. Jaworski, a lawyer with the Department of Justice, wrote to the Chairperson advising that he had been retained by Revenue Canada and requesting the hearing tapes and an adjournment. Counsel for the appellant, who was copied on the letter, responded opposing the request for the tapes on the basis that the appellant had previously made the same request and had been refused. The Chairperson then wrote to Mr. Jaworski informing him that copies of the tapes would be provided to both parties and that she would hear submissions as to the adjournment when the hearing continued. After the hearing the Chairperson released the tapes and granted the adjournment, at which point counsel for the appellant submitted that the Chairperson recuse herself.
[34] Following this, the Chairperson received a voicemail message from the team leader of the Human Resources Department at Revenue Canada requesting advice with respect to the requirement for the Selection Board Chairperson to appear before the Board due to a conflict schedule.
[35] At the recusal hearing counsel for the appellant argued that a reasonable apprehension of bias arose due to the differential treatment accorded to the parties regarding the release of the tapes and the Chairperson’s allegedly negative attitude towards the appellant after the telephone call with Ms. Fox. Counsel for Revenue Canada agreed that the contact between the Department of Revenue and the Chairperson should not have been made and that a perception of bias did arise from the Chairperson’s contacts with Ms. Fox and the team leader. The Chairperson declined to recuse herself.
[36] The Federal Court of Appeal noted that in the call from Ms. Fox the Chairperson offered advice to the effect that Ms. Fox should consult with senior human resources personnel about any reservations she might have about the proceedings. Further, that the evidence disclosed that the appellant’s counsel did not learn about the call from the team leader but from the Chairperson. Nor was it explained why the Chairperson would personally have contacted the parties about procedural matters rather than the Registrar, nor why she would initiate separate calls rather than a conference call with both sides at the same time.
[37] The Federal Court of Appeal also found that the Chairperson refused the appellant’s request for the hearing tapes without giving the appellant an opportunity to make submissions and that the Chairperson had failed to engage with Mr. Jaworski’s position in making her ruling. The Court concluded that on a full and fair review of the events, the appellant’s apprehension of bias in the Chairperson was reasonably held.
[38] The Applicant also relies on Hunt v. The Owners, Strata Plan LMS 2556, 2018 BCCA 159. In Hunt, there were four ex parte communications. The first was between counsel for Strata and the arbitrator that Strata had nominated, Mr. Borowicz, expressing Strata’s view that there should be a three-person panel and that its counsel should stress this with Strata’s nominee. A second communication involved a private discussion between Strata’s counsel and the arbitration chair, Mr. Sanderson, and discussed Strata’s position on settlement and that Strata’s counsel had conveyed to Mr. Sanderson that the owners of other units in the building supported Strata’s position as against the Hunts, to the extent of being willing to fund the cost of the arbitration. The third communication was a private discussion between Strata’s counsel with Elaine Cormack, the arbitrator nominated by the Hunts, wherein she allegedly implied that the arbitration should not go much further based on the mediation comments made by Strata’s counsel to the arbitration chair, Mr. Sanderson. The final communication was a telephone call between Strata’s counsel and Mr. Borowicz.
[39] The British Columbia Court of Appeal analyzed each of the ex parte communications. It rejected Strata’s characterization of them as purely procedural. It noted while some procedural matters are on the purely administrative end of the spectrum, such as the start time of a hearing, others will touch on more substantive matters, such as the right to and scope of discovery. In the case before it, the Court found that the ex parte communications had touched on the important issue of the number of arbitrators, the prospects of mediation including what Strata’s mediation proposal would be, and the implication that the rest of the unit owners supported the costs of arbitration, which suggested that the Hunt’s position was unreasonable. The Court found that these were not trivial matters.
[40] It also found that the first communication could have no purpose other than attempting to influence Mr. Borowicz, as Strata’s nominee, and that other communications indicated that the off the record relationship between Mr. Borowicz and Strata’s counsel was ongoing. The Court had no difficulty in concluding that these communications were inappropriate and raised a reasonable apprehension of bias.
[41] The Applicant also relies on Ceibien v Canada (Attorney General), 2005 FC 167, a judicial review of decision by the Chairperson of the Public Service Commission Appeal Board denying the applicant’s complaint about a staffing process. There the Chair and the departmental representative had engaged in ex parte discussions during the hearing, when Mr. Ciebien was out of the room, during which the Chairperson offered advice to the departmental representative on the presentation of his case. The Court found that those exchanges could lead an observer to conclude that the proceedings were not being conducted in an impartial manner. The Court also had concerns with the Chairperson’s treatment of Mr. Ciebien during the hearing. The Court concluded that the tone of the proceedings and the ex parte discussion would lead an objective observer to conclude that Mr. Ceibien did not receive a fair hearing, and, accordingly, that a reasonable apprehension of bias had been made out.
[42] The Respondents refer to the Federal Court of Appeal’s decision, made subsequent to Setlur, in GRK Fasteners v Leland Industries, 2006 FCA 118 [GRK Fasteners]. There a party to the proceedings, Leland, during a conference call among the tribunal research staff and the participants, offered to clarify the scope of goods considered to be the focus of their injury complaint and subsequently sent its list to the tribunal with three covering letters explaining how the list was to be read. Four days later the Tribunal circulated the list to all parties.
[43] The applicants in GRK Fasteners asserted that they only learned of the three covering letters after the tribunal’s findings and reasons were issued. The Federal Court of Appeal rejected the applicants’ allegation, that by accepting the cover letters the tribunal had unwittingly allowed Leland to set the terms of the product scope and exclusion request without input from all of the participants. The Federal Court of Appeal held that the applicants had mischaracterized the communications from Leland and the tribunal did not breach its duty of procedural fairness by receiving the ex parte communications. The substance of all of Leland’s letters was conveyed in a timely manner to all participants, including the applicants. Nothing in that notice pre-empted or usurped the eventual decision by the tribunal on the substance of the case, the scope of the product coverage or the matter of product exclusions as the applicant asserted. The Federal Court of Appeal found no breach of procedural fairness in the manner in which the Tribunal proceeded.
[44] In my view, the above case law demonstrates that the content, context and character of impugned ex parte communications must be considered when assessing whether or not they give rise to a reasonable apprehension of bias. This is in keeping with the Supreme Court of Canada’s decision in Yukon which held that the inquiry into whether a decision maker’s conduct creates a reasonable apprehension of bias is inherently contextual and fact-specific, and that there is a correspondingly high burden of proving the claim on the party alleging bias (Yukon at para 26).
[45] In this matter, the communications were primarily between the Electoral Officer and the Arbitrator. They also included the WLFN band manager and other WLFN administrative staff, as well as Garry Labcoucan of Ackroyd LLP, which firm appears to have been WLFN’s existing counsel prior to the contested Election. As noted above, the communications were primarily concerned with the practicalities of the administration of the Appeal, in particular, giving notice and posting the Notice of Appeal, setting an Appeal hearing date and determining a suitable venue for the hearing, and the communication of this information to WLFN members.
[46] Further, given the nature of their roles as prescribed in the WLFN Election Regulations, the Electoral Officer and Arbitrator would necessarily communicate with each other. In that regard, s 16.2 of the WLFN Election Regulations deals with notice of appeal and the duties of the Electoral Officer and the Arbitrator:
16.6 The Notice of Appeal shall be forwarded by the Electoral Officer to all Candidates, posted in public places on the Reserve and in other public places and locations selected by the Appeal Arbitrator.
[47] Pursuant to s 16.8 of the WLFN Election Regulations, the Electoral Officer is also required to prepare an Election Record in the prescribed form and deliver it to the Election Appeal Arbitrator.
[48] Section 16.9 of the WLFN Election Regulations requires the Election Appeal Arbitrator to set the date for the hearing of an appeal within three days of receiving the Election Record. Section 16.11 requires that the notice of the hearing of the Election Appeal must be posted in public places on Reserves and in other public places and locations that the Arbitrator designates and mailed or delivered to the appellant and all candidates.
[49] In my view, the communications described above relate to implementing the WLFN Election Regulations’ procedural requirements. Indeed, it was the responsibility of the Arbitrator to ensure that any appeals were conducted in accordance with the requirements of those Regulations.
[50] This is not a situation such as Setlur where the ex parte communications between the decision maker and a party representative raised substantive concerns about the conduct of the proceeding. Nor is it similar to Hunt, where the ex parte communications between counsel for a party and the arbitrators were not purely procedural, rather they disclosed information significant to the conduct and outcome of the arbitration. This case is also unlike Ciebien, where the decision maker gave advice to a party representative during a hearing when the other party was out of the room and there were concerns with the decision maker’s treatment of the other party. Rather, in this matter the challenged ex parte communications dealt almost exclusively with the practicalities of the administration of the Appeal. No representations were communicated nor was information regarding the substance of the Appeal exchanged, other than the Notice of Appeal that the Applicant himself submitted and that was required by the WLFN Election Regulations to be distributed to others as part of the Appeal process.
[51] Moreover, the WLFN does not have a registry or similar discreet and neutral entity through which administrative communications pertaining to the Appeal could be channeled. And, the practical reality was that WLFN administr

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Grey v. Whitefish Lake First Nation Court (s) Database Federal Court Decisions Date 2020-10-02 Neutral citation 2020 FC 949 File numbers T-174-19 Decision Content Date: 20201002 Docket: T-174-19 Citation: 2020 FC 949 Ottawa, Ontario, October 2, 2020 PRESENT: Madam Justice Strickland BETWEEN: JAMES GREY Applicant and WHITEFISH LAKE FIRST NATION #459 Respondent JUDGMENT AND REASONS [1] This is an application for judicial review of the decision of the Election Appeal Arbitrator [Arbitrator], with respect to an appeal [Appeal] by the Applicant, James Ian Bennett Grey, of the election of Albert J. Thunder as Chief of the Whitefish Lake First Nation #459 [WLFN] at the WLFN general election held on April 13, 2018 [Election]. The Arbitrator dismissed the Appeal and affirmed the election of Albert Thunder as Chief of the WLFN. Factual background [2] On March 9, 2019, Mr. Garry Laboucan, of the law firm Ackroyd LLP, sent a letter to Mr. Drew Jarisz, of Taylor Janis LLP, to confirm that Mr. Jarisz had been retained by the WLFN to act as the Appeal Arbitrator for the election to be held on April 13, 2018. The letter states that Mr. Jarisz’s job would be to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations of the Whitefish Lake First Nation #459 [WLFN Election Regulations]. It also attaches a copy of the March 8, 2018 Band Council Resolution confirming the appointment. The Band Council Resolution states that then Chief and Council appointed Drew Jarisz as the Appeal Arbitrator to supervise and ensure that any appeals from the General Election, By-Election or Run-off Election are conducted in accordance with the WLFN Election Regulations and the rules of natural justice. The same Band Council Resolution appointed Mr. Lorne Ternes as the Electoral Officer for the upcoming Election. [3] The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief with 254 votes, winning by a margin of 70 votes over Jesse Grey, the incumbent Chief, who came fourth in the election with 184 votes. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the WLFN Election Regulations. [4] The Applicant filed a Notice of Appeal challenging the election of Albert Thunder on three grounds: - A candidate who ran in the election, Jesse Grey, was ineligible to run and provided false information or failed to disclose information relevant to the Nomination. Specifically, that Jesse Grey was convicted of an indictable criminal offense as of the date of his nomination and did not receive an eligible pardon; - A candidate, Jesse Grey, was guilty of Corrupt Election Practices (as defined in the WLFN Election Regulations) or benefited from and consented to a Corrupt Election Practice. Specifically, that he allegedly paid the travel expenses of Cindy or George Grey on the condition that they disclose that they had voted for Jesse Grey; - Other circumstance, event or action which improperly, and directly affected the conduct and outcome of the Election, being the violation of ballot secrecy. Specifically, that George Grey violated the secrecy of the ballot by showing a picture of his ballot to Jesse Grey. [5] For the reasons set out in his decision, the Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief. [6] The Applicant filed a Notice of Application on January 23, 2019, commencing this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application for judicial review is the Applicant’s assertion that Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserts that he had no knowledge of the circumstances giving rise to these allegations prior to the hearing of the Appeal. Arbitrator’s Decision [7] The Election Appeal hearing was held on May 8, 2018. The Applicant and the WLFN introduced evidence through witnesses and made oral submissions. Jesse Grey made submissions on his own behalf. On behalf of the Applicant, Elise Laboucan made submissions regarding Jesse Grey’s alleged prior criminal conviction and George and Cindy Grey made submissions regarding the alleged vote buying and the revealing of George Grey’s ballot. [8] As to the allegation that George Grey violated the secrecy of his ballot by voluntarily showing a picture of it to Jesse Grey after George Grey had voted, the Arbitrator found that no evidence or arguments were advanced that this alleged breach of secrecy affected the outcome of the election, and dismissed the ground of appeal pursuant to ss 16.17.1 and 16.17.2 of the WLFN Election Regulations. [9] The Arbitrator also found that the Applicant had not established on a balance of probabilities that Jesse Grey was ineligible to run for Chief in the Election. The Arbitrator identified the evidence before him on the issue, being a statutory declaration of Jesse Grey stating that he had never received pardon for any indictable offence; a non certified criminal record check dated January 30, 2018 showing no criminal record, which the Arbitrator accepted as valid; a finger print record check dated March 10, 2014, which the Arbitrator also accepted as valid; and, the oral testimony of Jesse Grey and of Elise Laboucan. The evidence of Elise Laboucan was that she believed that Jesse Grey had been convicted of rape because, decades ago, her family was told this by the purported victim’s family and that information had subsequently been conveyed to Ms. Laboucan by her mother. The Arbitrator found Ms. Laboucan’s evidence to be hearsay and unreliable. He concluded that the evidence overwhelmingly demonstrated that there were no reasonable grounds to believe that Jesse Grey was ineligible to participate in the Election due to a past conviction for an indictable criminal offence. The Arbitrator denied that ground of appeal pursuant to s 16.17.1 of the WLFN Election Regulations. [10] As to the allegation of Corrupt Election Practices, the Arbitrator described the evidence of George Grey (who is Jesse Grey’s cousin) and his wife Cindy Grey, as well as Jesse Grey’s version of events – which differed significantly from that of George and Cindy Grey. The Arbitrator noted that Jesse Grey admitted giving a sandwich and $200 to George Grey and $150 to Roberta Grey when they came to his house after the election at which time George Grey requested help and said that he was hungry. Further, that Jesse Grey’s evidence was that this money was for travel and food, not in exchange for votes. The Arbitrator noted that George Grey had changed aspects of his evidence under cross-examination and that his animosity towards Jesse Grey was “palpable at the hearing”. George Grey testified that Jesse Grey in his previous role as Chief, and the then Council had promised him a house to live in, which did not materialize. George Grey blamed Jesse Grey, as former Chief, for this as well as for rapists, drug addicts and killers being on the reserve. He also testified that he was coming forward to testify at the hearing because he had not been given a house and because Jesse Grey had accused him of being a liar. Roberta Grey did not give evidence. Ultimately, the Arbitrator preferred the evidence of Jesse Grey. The Arbitrator found that the evidence was not sufficient for him to conclude, on a balance of probabilities, that Jesse Grey offered money in exchange for votes. The Arbitrator denied this ground of appeal pursuant to s 16.17.1 of the WLFN Election Regulations. [11] The Arbitrator found, in the alternative, that if Mr. Jesse Grey did offer money in exchange for votes then on the evidence before the Arbitrator it could only be reasonably concluded that there were two impugned votes, which was less than the plurality of the victory. He would therefore uphold the results of the Election under s 16.17.2 of the WLFN Election Regulations. Legislation [12] The relevant sections of the WLFN Election Regulations are contained in Annex A of these reasons. Issues and standard of review [13] In my view, the issues identified by the parties can be framed as follows: Was there a reasonable apprehension of bias on the part of the Arbitrator? Are there reviewable errors arising from the Arbitrator’s assessment of the evidence and analysis? [14] As to the standard of review, the Applicant submits that the standard of review on the issues of bias and lack of independence, which relate to procedural fairness, is correctness (Temate v Canada (Attorney General), 2018 FC 1004 at para 18). Alternatively, if no standard of review applies, than the question is whether the procedure was fair in all of the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR]). Further, that questions regarding substantive review attracts the standard of reasonableness (Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 at para 23 [Vavilov]). The Respondent relies on CPR with respect to the first issue and submits that the standard of review when weighing the evidence is reasonableness. [15] In my view it is clear that the standard of review for questions of procedural fairness, which encompasses issues of bias, is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission Institution v Khela, 2014 SCC 24 at para 79; Johnny v Adams Lake Indian Band, 2017 FCA 146 at para 19; Nadeau v. Canada (Attorney General), 2018 FCA 203 at para 11 [Nadeau]; Hill v Oneida Nation of the Thames Band Council, 2014 FC 796 at para 45). And, as stated by the Federal Court of Appeal in Oleynik v Canada (Attorney General), 2020 FCA 5 [Oleynik FCA] at para 39, referencing its decision in CPR at para 54, judicial review for procedural fairness is “best reflected in the correctness standard”. No deference is afforded to the underlying decision maker on questions of procedural fairness (Del Vecchio v Canada (Attorney General), 2018 FCA 168 at para 4). [16] The standard of review otherwise applicable in this matter is the presumptive standard of reasonableness (CPR at para 8; Vavilov at paras 16-17). A review for reasonableness requires this Court to ask if 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). Issue 1: Was there a reasonable apprehension of bias on the part of the Arbitrator? [17] The Applicant asserts three circumstances that give rise to a reasonable apprehension of bias: ex parte communications and a lack of separation between the Arbitrator and Ackroyd LLP, WLFN’s counsel; the marital relationship between the Arbitrator and a member of Ackroyd LLP; and a prior retention of the Arbitrator by WLFN. i. Ex parte communications and lack of separation Applicant’s position [18] Ackroyd LLP is legal counsel for WLFN. The Applicant submits that Ackroyd LLP had numerous communications with the Arbitrator without the Applicant’s knowledge or involvement. These communications give rise to a reasonable apprehension of bias as they suggest that one party, the WLFN, is favoured or has some relationship with the decision maker, the Arbitrator. [19] Further, that there was a complete failure to maintain any degree of separation between the Arbitrator and Ackroyd LLP. The Applicant submits that Ackroyd LLP had previously retained the Arbitrator on behalf of WLFN on another matter and had worked actively with him on that matter. Ackroyd LLP were then “the party” that appears to have appointed the Arbitrator with respect to the Election Appeal, contrary to jurisprudence that has held that a party should not be required to present its case before a tribunal whose members have been appointed by an opposing party. Respondent’s position [20] The Respondent submits that there is an exception to the requirement of independence when the enabling statute permits an overlap in functions (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 [Ocean Port] at para 42). To the extent that the overlap is authorized, it will generally not be subject to the reasonable apprehension of bias doctrine (Brosseau v Alberta (Securities Commission), [1989] 1 SCR 301 at 310-311). In this case, section 7.1 of the WLFN Election Regulations authorizes WLFN to appoint an election appeal arbitrator, even though WLFN will be called upon to respond to an appeal. Further, to the extent that the ex parte communications identified by the Applicant were not specifically authorized by the WLFN Election Regulations, they were administrative in substance and, in the circumstances, were necessary in light of institutional constraints. The communications did not address issues that impacted the substance of the case and did not give rise to a reasonable apprehension of bias. Analysis [21] The test for whether there is a reasonable apprehension of bias has been broadly accepted as that stated by Justice Grandpre in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394: the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. (see also Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para 20-21 [Yukon].) [22] The issue of bias is inextricably linked to the need for impartiality. Decision makers are required to approach every case with impartiality and an open mind (Yukon at para 22) and to decide the case independently (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at para. 22 [Cojocaru]). Impartiality and independence are also assessed using the reasonable apprehension of bias test. [23] There is a strong presumption of impartiality that is not easily displaced and the “test for a reasonable apprehension of bias requires a ‘real likelihood or probability of bias’ and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per Cory J.” (Yukon at para 25). Further: [26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.): … allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.] (Yukon at para 26) [24] The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (Attorney General), 2020 FCA 5 at para 57; Yukon at paras. 25-26). [25] The Applicant claims a reasonable apprehension of bias based on his assertion that lawyers with Ackroyd LLP had “numerous communications” with the Arbitrator without the Applicant’s knowledge and that Ackroyd LLP “appears to have worked extensively” with the Arbitrator in discharging his functions in the period leading up to the appeal. In support of this position, the Applicant points to the following communications: June 10, 2017 – email from Anita Thompson of Ackroyd LLP to Drew Jarisz concerning a WLFN Agricultural Benefit Settlement Referendum Vote. The email advises that Ackroyd LLP is retaining Mr. Jarisz as a Deputy Assistant to the Ratification Officer for the WLFN Ratification Vote to be held on June 14 and 15, 2017, sets out his responsibilities and that he will be paid a flat rate of $3500 and traveling expenses; March 9, 2018 – letter from Garry Laboucan of Ackroyd LLP to Drew Jarisz regarding the WLFN Election. This letter advises that it serves to confirm that Mr. Jarisz has “been retained by the Whitefish Lake First Nation to act as their Appeal Arbitrator” for their upcoming election to be held on April 13, 2018 and that Mr. Jarisz is to supervise and ensure that any appeals from the election are conducted in accordance with the WLFN Election Regulations. It attaches a copy of the Band Council Resolution appointing Mr. Jarisz as Arbitrator and appointing Lorne Ternes as the Election Officer; April 17, 2018 – email from Lorne Ternes to Drew Jarisz, the Band Manager (Mabel Noskey), [email protected], Yvonne Noskey; and Garry Laboucan concerning the Appeal. This email states that it attaches a PDF package (including the Notice of Appeal) that the Election Officer mailed out that morning to the Arbitrator, the Band Manager, the candidates for Chief and the Applicant advising that the Applicant had appealed the election of Albert Thunder. The email further states that after the appeal period closed the Election Officer would get someone, possibly Yvonne Noskey, to post it. The Election Officer also asks Mabel Nokey and Lori if the Arbitrator could give the appeal fee to Yvonne Noskey to deliver to WLFN and if the Election Officer can deliver the election record to the Arbitrator on Thursday; April 17, 2018 – email from Drew Jarisz to Lorne Ternes, the Band Manager, [email protected], Yvonne Noskey and Garry Laboucan responding to the Election Officer’s email above and confirming that delivery of the election record on Thursday would be fine. The Arbitrator also asks the Election Officer where he proposed posting the Notice of Appeal and, in that regard, if Yvonne/Lorne/Garry could reply listing the prominent public places on the reserve; April 17, 2018 – email from Lorne Ternes to Drew Jarisz, cc’d to Band Manager, [email protected], Yvonne Noskey; and Garry Laboucan, responding to the email above and advising that usually WLFN requires posting at the Band Office, the Health Office, the school and at two identified convenience stores; April 18, 2018 – email from Drew Jarisz to Band Manager, [email protected] and Garry Laboucan, copied to Lorne Ternes and Yvonne Noskey, concerning the Appeal. This states that Mr. Jarisz, as the Arbitrator, would like to set the first appeal date for April 30th, to hear any other appeals on the following consecutive days and to allocate one day to deal with each appeal. He asks if WLFN has an issue with the proposed dates and states that in the interests of fairness and transparency, the hearings would be open to members of WLFN.As to venue, the Arbitrator states that he did not know how many people would attend or where on or near the reserve would be an appropriate place to hold the hearing. As he understood Garry/Mabel to have coordinated similar events in the past, he asks if they could propose a suitable venue for the appeal hearing.The Arbitrator notes that a record of the hearing would be needed and that witnesses should be sworn in. He states that he did not know how WLFN had dealt with this in the past but, to his mind, a court reporter could accomplish this. He indicates to Garry Laboucan that he understood that Ackroyd LLP would coordinate this once the hearing dates were firmed up.He also advises Mabel Nosley, the band manager, that once the number of appeals and venue were confirmed that the Arbitrator would provide her with a Notice of Hearing which would need to be mailed to all candidates and be posted at the public places on the reserve, including the Band Office, the Health Office, the school and the two convenience stores on or before April 21, 2018; April 18, 2018 – email from Drew Jarisz to Albert Thunder, copied to Lorne Ternes, Garry Laboucan and Band Manager. The email responds to questions posed to the Arbitrator by Albert Thunder about the Appeal. It states that the grounds for the Appeal are set out in s 16(1) of the WLFN Election Regulations. The Arbitrator notes that because the Arbitrator’s role is that of an independent arbitrator, beyond that explanation, and outside of a hearing, he could not discuss the specific interpretation of any provisions of the regulations with any individual who may be affected by a decision the Arbitrator would render. However, the Arbitrator copied Garry Laboucan to the email, indicating that as counsel for WLFN, Mr. Laboucan would be in a better position to discuss the matter; April 19, 2018 – email from Lorne Ternes to Angeline Thunder, Lorne Ternes, Drew Jarisz and Garry Laboucan. The Electoral Officer asks Angeline Thunder to print and then post the attached Notice of Appeal at the locations indicated in the above emails and asks Garry Laboucan if he could also make sure his was followed up; April 19, 2018 – email from Drew Jarisz to Lorne Ternes responding to the above and asking for confirmation that the Notice of Appeal had been posted and if it had been mailed to all of the candidates as required by s 16.6 of the WLFN Election Regulations.The reply email of the same date from the Electoral Officer, copied to Angeline Thunder, Garry Laboucan and Lorne Ternes, states that Yvonne Noskey was then driving to Whitefish to post the Notice of Appeal and would email pictures to the Electoral Officer. And, that on the day before, the Electoral Officer had mailed the Notice to all candidates, the band manager and the Arbitrator; April 20, 2018 – email from Drew Jarisz to Yvonne Noskey, Garry Laboucan, [email protected] and Band Manager attaching the Notice of Hearing for the Applicant’s appeal, noting that this was being emailed to the candidates and must be posted at the places previously identified by 5:00 pm on Saturday April 21, 2018. The Arbitrator states that he understands that Yvonne Noskey will be doing the posting and Mabel, the band manager, may be assisting. He asks for confirmation that the hearing is posted by return email and that he be provided with picture confirmation asap. He also asks that Garry Laboucan confirm that this will be done and to contact the Arbitrator if there are any issues; and May 7, 2018 – letter from John Kudrinko of Ackroyd LLP to the Arbitrator advising that Ackroyd LLP is counsel for WLFN with respect to the Applicant’s Appeal and providing WLFN’s written submissions. [26] I would first note that the March 9, 2018 letter from Garry Labuocan of Ackroyd LLP to Drew Jarisz regarding Mr. Jarisz’s appointment as Arbitrator for the upcoming Election is not fairly characterized as an ex parte communication between a party and a decision maker. The letter specifically states that the Arbitrator is retained by the WLFN to act as their appeal arbitrator. The appointment by the WLFN is demonstrated by the attached Band Council Resolution. Further, s 7.1 of the WLFN Election Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution: 7.1 Appointment At least thirty five (35) days prior to the date selected as the Election day, the Council shall, by Resolution in the prescribed form set the date of the Election, appoint and Electoral Officer and an Election Appeal arbitrator for the purpose of conducting the Election pursuant to these Regulations. [27] Thus, the WLFN Election Regulations authorize WLFN Council to appoint an election appeal arbitrator by way of band council resolution, and that process was followed in this case. [28] To the extent that the Applicant is asserting that the appointment process lacked independence and was procedurally unfair because the WLFN Council appointed the Arbitrator and, in this case, WLFN was also called upon to respond to the Appeal, I note that the Applicant has not challenged the validity of s 7.1 on the basis that it is procedurally unfair. Further, the Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. And, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication, “[i]t is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question” (Ocean Port at paras 19-21). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131 at paras 52 - 55). [29] Accordingly, as s 7.1 of the WLFN Election Regulations permits WLFN Council to appoint an appeal arbitrator, the appointment of the Arbitrator by WLFN Chief and Council in this case does not give rise to a reasonable apprehension of bias. Nor does the mere fact that the notification of the appointment was conveyed to the Arbitrator by legal counsel for WLFN. Further, as will be discussed below, the appointment letter does not address the substance of the Applicant’s Appeal. Indeed, it was sent before the Election was even held and, therefore, before any appeals stemming from the Election could arise. [30] The remainder of the above communications pertain primarily to the practicalities of the administration of the Appeal. In particular, giving notice and posting of the Appeal, setting an Appeal hearing date and determining a suitable place for the hearing to be held, and communicating this information to WLFN members. [31] The parties rely on differing case law in support of whether or not ex parte communications regarding administrative or procedural aspects of the Appeal give rise to a reasonable apprehension of bias. [32] The Applicant refers to Setlur v Canada, [2000] 193 FTR 104 (FCA). In Setlur, the Federal Court of Appeal found that there was a reasonable apprehension of bias on behalf of the Chairperson of the Public Service Commission of Canada. I note that in reaching its conclusion the Federal Court of Appeal considered not only ex parte communications, but also the Chairperson’s uneven treatment of requests for hearing tapes, and the fact that counsel for Revenue Canada agreed, given the circumstances, the Chairperson should recuse herself but that the Chairperson had not engaged with those submissions. [33] The following ex parte communications were at issue in Setlur. First, the Chairperson initiated a phone conversation with Ms. Fox, a human resources advisor who was then representing Revenue Canada, to coordinate rescheduling for hearing dates. During that conversation, Ms. Fox raised concerns that she and the Selections Board Chairperson, Mr. Tkaczk, had about “the tone of the hearing, the manner in which the appellant’s allegations were being presented, and attacks upon [Selection Board Chairperson] integrity”. The Chairperson undertook to raise those concerns when the hearing resumed, which she did. At that point Ms. Fox did not speak to her concerns and appellant’s counsel expressed that he would have expected Ms. Fox to have discussed any concerns that she had with the proceedings directly with him. Subsequently, Mr. Jaworski, a lawyer with the Department of Justice, wrote to the Chairperson advising that he had been retained by Revenue Canada and requesting the hearing tapes and an adjournment. Counsel for the appellant, who was copied on the letter, responded opposing the request for the tapes on the basis that the appellant had previously made the same request and had been refused. The Chairperson then wrote to Mr. Jaworski informing him that copies of the tapes would be provided to both parties and that she would hear submissions as to the adjournment when the hearing continued. After the hearing the Chairperson released the tapes and granted the adjournment, at which point counsel for the appellant submitted that the Chairperson recuse herself. [34] Following this, the Chairperson received a voicemail message from the team leader of the Human Resources Department at Revenue Canada requesting advice with respect to the requirement for the Selection Board Chairperson to appear before the Board due to a conflict schedule. [35] At the recusal hearing counsel for the appellant argued that a reasonable apprehension of bias arose due to the differential treatment accorded to the parties regarding the release of the tapes and the Chairperson’s allegedly negative attitude towards the appellant after the telephone call with Ms. Fox. Counsel for Revenue Canada agreed that the contact between the Department of Revenue and the Chairperson should not have been made and that a perception of bias did arise from the Chairperson’s contacts with Ms. Fox and the team leader. The Chairperson declined to recuse herself. [36] The Federal Court of Appeal noted that in the call from Ms. Fox the Chairperson offered advice to the effect that Ms. Fox should consult with senior human resources personnel about any reservations she might have about the proceedings. Further, that the evidence disclosed that the appellant’s counsel did not learn about the call from the team leader but from the Chairperson. Nor was it explained why the Chairperson would personally have contacted the parties about procedural matters rather than the Registrar, nor why she would initiate separate calls rather than a conference call with both sides at the same time. [37] The Federal Court of Appeal also found that the Chairperson refused the appellant’s request for the hearing tapes without giving the appellant an opportunity to make submissions and that the Chairperson had failed to engage with Mr. Jaworski’s position in making her ruling. The Court concluded that on a full and fair review of the events, the appellant’s apprehension of bias in the Chairperson was reasonably held. [38] The Applicant also relies on Hunt v. The Owners, Strata Plan LMS 2556, 2018 BCCA 159. In Hunt, there were four ex parte communications. The first was between counsel for Strata and the arbitrator that Strata had nominated, Mr. Borowicz, expressing Strata’s view that there should be a three-person panel and that its counsel should stress this with Strata’s nominee. A second communication involved a private discussion between Strata’s counsel and the arbitration chair, Mr. Sanderson, and discussed Strata’s position on settlement and that Strata’s counsel had conveyed to Mr. Sanderson that the owners of other units in the building supported Strata’s position as against the Hunts, to the extent of being willing to fund the cost of the arbitration. The third communication was a private discussion between Strata’s counsel with Elaine Cormack, the arbitrator nominated by the Hunts, wherein she allegedly implied that the arbitration should not go much further based on the mediation comments made by Strata’s counsel to the arbitration chair, Mr. Sanderson. The final communication was a telephone call between Strata’s counsel and Mr. Borowicz. [39] The British Columbia Court of Appeal analyzed each of the ex parte communications. It rejected Strata’s characterization of them as purely procedural. It noted while some procedural matters are on the purely administrative end of the spectrum, such as the start time of a hearing, others will touch on more substantive matters, such as the right to and scope of discovery. In the case before it, the Court found that the ex parte communications had touched on the important issue of the number of arbitrators, the prospects of mediation including what Strata’s mediation proposal would be, and the implication that the rest of the unit owners supported the costs of arbitration, which suggested that the Hunt’s position was unreasonable. The Court found that these were not trivial matters. [40] It also found that the first communication could have no purpose other than attempting to influence Mr. Borowicz, as Strata’s nominee, and that other communications indicated that the off the record relationship between Mr. Borowicz and Strata’s counsel was ongoing. The Court had no difficulty in concluding that these communications were inappropriate and raised a reasonable apprehension of bias. [41] The Applicant also relies on Ceibien v Canada (Attorney General), 2005 FC 167, a judicial review of decision by the Chairperson of the Public Service Commission Appeal Board denying the applicant’s complaint about a staffing process. There the Chair and the departmental representative had engaged in ex parte discussions during the hearing, when Mr. Ciebien was out of the room, during which the Chairperson offered advice to the departmental representative on the presentation of his case. The Court found that those exchanges could lead an observer to conclude that the proceedings were not being conducted in an impartial manner. The Court also had concerns with the Chairperson’s treatment of Mr. Ciebien during the hearing. The Court concluded that the tone of the proceedings and the ex parte discussion would lead an objective observer to conclude that Mr. Ceibien did not receive a fair hearing, and, accordingly, that a reasonable apprehension of bias had been made out. [42] The Respondents refer to the Federal Court of Appeal’s decision, made subsequent to Setlur, in GRK Fasteners v Leland Industries, 2006 FCA 118 [GRK Fasteners]. There a party to the proceedings, Leland, during a conference call among the tribunal research staff and the participants, offered to clarify the scope of goods considered to be the focus of their injury complaint and subsequently sent its list to the tribunal with three covering letters explaining how the list was to be read. Four days later the Tribunal circulated the list to all parties. [43] The applicants in GRK Fasteners asserted that they only learned of the three covering letters after the tribunal’s findings and reasons were issued. The Federal Court of Appeal rejected the applicants’ allegation, that by accepting the cover letters the tribunal had unwittingly allowed Leland to set the terms of the product scope and exclusion request without input from all of the participants. The Federal Court of Appeal held that the applicants had mischaracterized the communications from Leland and the tribunal did not breach its duty of procedural fairness by receiving the ex parte communications. The substance of all of Leland’s letters was conveyed in a timely manner to all participants, including the applicants. Nothing in that notice pre-empted or usurped the eventual decision by the tribunal on the substance of the case, the scope of the product coverage or the matter of product exclusions as the applicant asserted. The Federal Court of Appeal found no breach of procedural fairness in the manner in which the Tribunal proceeded. [44] In my view, the above case law demonstrates that the content, context and character of impugned ex parte communications must be considered when assessing whether or not they give rise to a reasonable apprehension of bias. This is in keeping with the Supreme Court of Canada’s decision in Yukon which held that the inquiry into whether a decision maker’s conduct creates a reasonable apprehension of bias is inherently contextual and fact-specific, and that there is a correspondingly high burden of proving the claim on the party alleging bias (Yukon at para 26). [45] In this matter, the communications were primarily between the Electoral Officer and the Arbitrator. They also included the WLFN band manager and other WLFN administrative staff, as well as Garry Labcoucan of Ackroyd LLP, which firm appears to have been WLFN’s existing counsel prior to the contested Election. As noted above, the communications were primarily concerned with the practicalities of the administration of the Appeal, in particular, giving notice and posting the Notice of Appeal, setting an Appeal hearing date and determining a suitable venue for the hearing, and the communication of this information to WLFN members. [46] Further, given the nature of their roles as prescribed in the WLFN Election Regulations, the Electoral Officer and Arbitrator would necessarily communicate with each other. In that regard, s 16.2 of the WLFN Election Regulations deals with notice of appeal and the duties of the Electoral Officer and the Arbitrator: 16.6 The Notice of Appeal shall be forwarded by the Electoral Officer to all Candidates, posted in public places on the Reserve and in other public places and locations selected by the Appeal Arbitrator. [47] Pursuant to s 16.8 of the WLFN Election Regulations, the Electoral Officer is also required to prepare an Election Record in the prescribed form and deliver it to the Election Appeal Arbitrator. [48] Section 16.9 of the WLFN Election Regulations requires the Election Appeal Arbitrator to set the date for the hearing of an appeal within three days of receiving the Election Record. Section 16.11 requires that the notice of the hearing of the Election Appeal must be posted in public places on Reserves and in other public places and locations that the Arbitrator designates and mailed or delivered to the appellant and all candidates. [49] In my view, the communications described above relate to implementing the WLFN Election Regulations’ procedural requirements. Indeed, it was the responsibility of the Arbitrator to ensure that any appeals were conducted in accordance with the requirements of those Regulations. [50] This is not a situation such as Setlur where the ex parte communications between the decision maker and a party representative raised substantive concerns about the conduct of the proceeding. Nor is it similar to Hunt, where the ex parte communications between counsel for a party and the arbitrators were not purely procedural, rather they disclosed information significant to the conduct and outcome of the arbitration. This case is also unlike Ciebien, where the decision maker gave advice to a party representative during a hearing when the other party was out of the room and there were concerns with the decision maker’s treatment of the other party. Rather, in this matter the challenged ex parte communications dealt almost exclusively with the practicalities of the administration of the Appeal. No representations were communicated nor was information regarding the substance of the Appeal exchanged, other than the Notice of Appeal that the Applicant himself submitted and that was required by the WLFN Election Regulations to be distributed to others as part of the Appeal process. [51] Moreover, the WLFN does not have a registry or similar discreet and neutral entity through which administrative communications pertaining to the Appeal could be channeled. And, the practical reality was that WLFN administr

Grey v. Whitefish Lake First Nation

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Grey v. Whitefish Lake First Nation

Source text

Full judgment (source text)

Related cases

Salt River First Nation #195 c. Heron

Canada (Procureur général) c. Première Nation Pekuakamiulnuatsh

Daniels v Canada (Indian Affairs and Northern Development)

Tsilhqot'in Nation v British Columbia

Haida Nation v British Columbia (Minister of Forests)

R v Powley