Dennis v. Adams Lake Indian Band, 2011 FCA 37

• Judge: Sharlow, Trudel and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 30, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FCA 37;(2011), 419 N.R. 385 (FCA)

Dennis v. Adams Lake Indian Band (2011), 419 N.R. 385 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. FE.025

The Community Panel of the Adams Lake Indian Band (appellant) v. Thomas Phil Dennis, of the Adams Lake Band, resident and an elector and on behalf of my relatives and other Adams Lake Band Members (respondent)

(A-55-10; 2011 FCA 37)

Indexed As: Dennis v. Adams Lake Indian Band

Federal Court of Appeal

Sharlow, Trudel and Stratas, JJ.A.

February 2, 2011.

Summary:

A Band Council and a Chief of the Adams Lake Indian Band were elected for a term of three years. Dennis, who ran for election, was unsuccessful. Dennis and others appealed against the election results. Article 19 of the Election Rules provided that "[a] Community Panel of five (5) persons shall govern and decide all proceedings held to dispute an election", within 30 days. At 3:10 p.m. of the very last day, after deliberations had been completed and midway through the Community Panel's voting process, one of the five members suddenly resigned. The resignation letter showed that his mind was made up on the appeals, he had reasons in mind, and he knew he was outvoted on the appeals by the other four members. The Panel dismissed the election appeals by votes of four to zero. Dennis and the others applied for judicial review.

The Federal Court, in a decision reported at [2010] F.T.R. Uned. 36, granted the application, quashed the decisions of the Panel, and ordered the election appeals to be redetermined on the merits by a newly constituted Panel. In the court's view, the Panel lost its legal authority to decide the appeals because the Panel was below its five person quorum. The Panel appealed.

The Federal Court of Appeal allowed the appeal, restoring the decision of the Panel. The application judge did not give weight to all relevant considerations. The legal quorum requirement did not necessarily predominate.

Administrative Law - Topic 545.1

The hearing and decision - Decisions of the tribunal - Effect of resignation or death of member - The Adams Lake Indian Band adopted Election Rules - Article 19 of the Election Rules provided that "[a] Community Panel of five (5) persons shall govern and decide all proceedings held to dispute an election" - One of the five members resigned just before the remaining members signed a document evidencing their decision - The Community Panel dismissed the election appeals by votes of four to zero - The Federal Court of Appeal stated that "Article 19 is worded in a particularly strict way. It requires, unconditionally and unequivocally, that appeals be governed and decided by five persons ... As for inherent jurisdiction, 'statutory tribunals … do not enjoy any inherent jurisdiction' ... and so it is hard to see how the Community Panel established under the Election Rules enjoys such a jurisdiction. Finally, while the Community Panel is master of its own procedure ..., absent an express power to amend or depart from the Election Rules, it cannot change the requirements of article 19" - See paragraphs 12 and 13.

Administrative Law - Topic 545.1

The hearing and decision - Decisions of the tribunal - Effect of resignation or death of member - The Adams Lake Indian Band adopted Election Rules - Article 19 of the Election Rules required that five persons on the Community Panel "decide" election appeals - An application judge found that the resignation of a single member deprived the Community Panel of its five person quorum and, thus, its jurisdiction to rule on the appeals - The Federal Court of Appeal observed that one could argue that the decisions of the Panel were made with the requisite quorum under article 19 and so they should not be quashed - There was no definition of "decide", and there was no requirement that decisions be formally signified in writing - Finally, the record contained no evidence of a practice of requiring formal signification - When deliberations ended and voting began, all five members had reached a decision on the merits of the appeals - However, the parties did not raise the issue of whether the Panel lost its quorum, so the court declined to rule on it definitively - See paragraphs 16 to 25.

Administrative Law - Topic 545.1

The hearing and decision - Decisions of the tribunal - Effect of resignation or death of member - The Adams Lake Indian Band adopted Election Rules - Article 19 of the Election Rules required that five persons on the Community Panel "decide" election appeals - An application judge found that the resignation of a single member deprived the Community Panel of its five person quorum and, thus, its jurisdiction to rule on the appeals - The Federal Court of Appeal allowed the appeal, as a discretionary matter, even if the Community Panel had lost jurisdiction - The application judge did not give weight to all relevant considerations - The legal quorum requirement did not necessarily predominate - First, the resigning member's motives were an important consideration - Further, the cost of redoing the appeals must be evaluated - Another important factor was that it was impractical to redo the appeals - A further important factor was the difficulty in staffing a new Community Panel to deal with the appeals - In light of the foregoing, even if the Community Panel lost its quorum, the court would exercise its discretion under s. 18.1(3) of the Federal Courts Act and in accordance with the principles in MiningWatch Canada (2010) (S.C.C.) to dismiss the application for judicial review - This would leave in place the decisions of the Community Panel dismissing the election appeals - See paragraphs 26 to 37.

Administrative Law - Topic 3207

Judicial review - General - Discretionary nature of judicial review - [See third Administrative Law - Topic 545.1 ].

Administrative Law - Topic 8925

Boards and tribunals - Powers - Quorum requirements - [See all Administrative Law - Topic 545.1 ].

Indians, Inuit and Métis - Topic 6246.1

Government - Elections - Appeals - Procedure - [See all Administrative Law - Topic 545.1 ].

Cases Noticed:

Montreal Trust Co. v. Oxford Pipe Line Co., [1942] O.R. 260 (H.C.), affd. [1942] O.R. 490 (C.A.), refd to. [para. 12].

Murray et al. v. Rockyview Municipal District No. 44 and Flintstone Fun Park Ltd. (1980), 21 A.R. 512; 110 D.L.R.(3d) 641; 12 Alta. L.R.(2d) 342 (C.A.), refd to. [para. 12].

Canada (Attorney General) v. Allard, [1982] 2 F.C. 706; 49 N.R. 301 (F.C.A.), refd to. [para. 12].

Boucher v. Métis Nation of Alberta Association et al., [2009] 2 W.W.R. 581; 448 A.R. 185; 447 W.A.C. 185; 2009 ABCA 5, refd to. [para. 12].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, refd to. [para. 13].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489, refd to. [para. 13].

IBM Canada Ltd. v. Minister of National Revenue (Customs and Excise) et al., [1992] 1 F.C. 663; 129 N.R. 369 (F.C.A.), refd to. [para. 19].

Singh (Ricki) v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 127; 224 N.R. 227 (F.C.A.), dist. [para. 22].

Mehael v. Minister of Employment and Immigration, [1993] F.C.J. No. 838 (T.D.), dist. [para. 22].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, consd. [para. 28].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 31].

Mazda Canada Inc. v. Mitsui O.S.K. Lines Co. et al., [2009] 2 F.C.R. 382; 382 N.R. 378; 2008 FCA 219, refd to. [para. 31].

Counsel:

Maria Morellato, Q.C., and Leah Pence, for the appellant;

Thomas Phil Dennis, on his own behalf.

Solicitors of Record:

Mandell Pinder, Vancouver, British Columbia, for the appellant.

This appeal was heard on November 30, 2010, at Vancouver, British Columbia, before Sharlow, Trudel and Stratas, JJ.A., of the Federal Court of Appeal. In reasons written by Stratas, J.A., the Court of Appeal delivered the following judgment at Ottawa, Ontario, on February 2, 2011.