Digests

Ballantyne v. Grand Rapids First Nation

T-679-00

Muldoon J.

22/11/00

29 pp.

Motion for certiorari to quash: respondent councillors' decision to suspend applicant from position of Chief, Grand Rapids First Nations, electoral officer's decision to conduct referendum, results of referendum; for mandamus requiring reinstatement of Chief; declaration naming applicant Chief--Applicant elected Chief in June 1999--On March 20, 2000 petition submitted to Band's electoral officer containing names of 51.7% of eligible voters of Band, calling for referendum to remove applicant from office--Acting on petition, councillors suspended applicant--On March 30, 2000 electoral officer informed applicant by letter calling referendum pursuant to clauses 910, 1510 of Band's election policy--Six days later referendum held, resulting in 157 votes to remove applicant from office, 153 votes to retain him--Preliminary issues: (1) Indian Band Council constituting federal board, commission or other tribunal as defined in Federal Court Act, s. 2: Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142 (T.D.)--By analogy, electoral officer appointed by Band Council pursuant to Band constitution equally federal board, commission, other tribunal: Parisier v. Ocean Man First Nation (1996), 108 F.T.R. 297 (F.C.T.D.)--Electoral officer's decisions amenable to judicial review, even if election held in accordance with Band's own customary practices, not pursuant to Indian Act--(2) Several petitioner's names possible duplicates--If suspect names removed, percentage of petitioners insufficient for electoral officer to act--Following Sucker Creek Indian Band v. Calliou (1999), 171 F.T.R. 275 (F.C.T.D.) Court examining merits of application despite defective petition--Issues: (1) Interpretation of clause 1510--Clause 1510, under heading "Recount", providing upon receipt of petition signed by 51% of number of eligible voters in immediately preceding election requesting recall vote, electoral officer may arrange for vote--Clause 1510 applies uniquely to election recounts--Court noting instances where election policy not making sense without using subject headings--Although Manitoba Interpretation Act, s. 11 excluding headings in body of enactment, Band election policy apparently not written with such Act as guide--In Statutory Interpretation (Concord, Ont.: Irwin Law, 1997), R. Sullivan noting Canadian courts adopting single general rule whereby all components of legislation considered part of legislative context which can be taken into account in interpreting text--(2) Allegations of wrongdoing in petition--Under Band election policy, Chief may be removed upon vote pursuant to clause 910 declaring office holder involved in substantial dishonest conduct--Petition alleging applicant stole Band funds, lied to membership about theft--(a) Procedural fairness--Administrative decision affecting rights, privileges or interests of individual sufficient to trigger application of duty of fairness--Application of factors identified in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 as relevant to determination of content of duty of procedural fairness--(i) Nature of decision, process to make decision--Electoral officer not required to consult with others in making decision; must act within bounds of policy--In deciding to accept petition, hold referendum, electoral officer acting in capacity similar to that of judicial officer, applied set of facts to election policy thus necessitating more procedural protection for applicant--(ii) Nature of statutory scheme--As no appeal from electoral officer's decision in policy and decision determination of issue, more procedural protection should be afforded to applicant--(iii) Importance of decision to individual--High standard of justice required when right to continue in one's employment or elective office at stake--Exacts high duty of fairness--(iv) Doctrine of legitimate expectations not applicable as applicant had no expectation electoral officer would follow defined procedure--(v) Choice of procedure--As procedure dictated by election policy, electoral officer not having any flexibility in determining choice of procedure to follow--High order of procedural fairness required--Conclusion: duty of fairness owed to applicant--(b) Content of duty of fairness--Basic requirements of principles of natural justice including notice, opportunity to make representations, unbiased tribunal--(i) Applicant received three letters: first purported to suspend him with pay, second and third informed him referendum to take place--Letters received ex post facto--Applicant had no prior notice--(ii) Applicant had no opportunity to make representations--(iii) Application of test for reasonable apprehension of bias set out in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369: what would informed person, viewing matter realistically, practically, having thought matter through, conclude--Wrongdoing: virtual lack of opportunity to meet petition's allegations important lacuna because petition inflammatory, possibly libellous--Supported by only 0.7% more than minimum percentage needed to call referendum--Petition circulated for seven months before submitted to electoral officer--Referendum held one week later--Unfair to expect applicant to mount reasonable campaign to repair reputation in one week when foes had over half year to smear it--Electoral officer clearly believed applicant dishonest--Reasonable, right-minded person would have perceived electoral officer biased against applicant--May have influenced decision to accept petition, alacrity with which held voting--(3) Election officer's scope of authority--Consideration of factors cited in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 for determining standard of review--No privative clause; electoral officer appointed during public meeting, has no particular expertise; no application of open-textured legal principles infusing election policy; electoral officer's decision involving interpretation of election policy akin to decision of law--Decisions of electoral officer warrant only low deference--Appropriate standard of review correctness--Electoral officer erred in accepting petition knew to be flawed--That no basis in election policy to reject petition not excusing electoral officer from refusing to exercise reasonable, fair discretion to reject petition known to contain flaws--(4) Court adopting statement in Sparvier that Band members individuals entitled to due process, procedural fairness in procedures affecting them--Entitled to equality of civil, constitutional rights with all other humans in Canada--Crow v. Blood Band (1996), 107 F.T.R. 270 (F.C.T.D.) distinguished--Applicant not acquiescing in election results--Not broad consensus to remove applicant from position--Review of cases demonstrating remedies Court may order when dealing with contested Indian Band elections--Demonstrating Court may fashion remedy appropriate to circumstances--Petition quashed for failure to comply with election policy, lack of procedural fairness--Council's decision to remove applicant as Chief quashed as based on defective petition--Results of subsequent referendum quashed because called as result of defective petition--Electoral officer's decision to render applicant ineligible to participate in future elections quashed--Applicant declared Chief--Federal Court Act, R.S.C., 1985, c. F-7, s. 2 (as am. by S.C. 1990, c. 8, s. 1)--Interpretation Act, C.C.S.M., c. I-80, s. 11--Indian Act, R.S.C., 1985, c. I-5.