Medzalabanleth v. Conseil des Abénakis de Wôlinak, (2014) 455 F.T.R. 256 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: Wednesday January 29, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 455 F.T.R. 256 (FC);2014 FC 508

Medzalabanleth v. Abénakis de Wôlinak (2014), 455 F.T.R. 256 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MY.047

Guy Medzalabanleth (demandeur) v. Conseil des Abénakis de Wôlinak (défendeur)

(T-1819-12; 2014 CF 508; 2014 FC 508)

Indexed As: Medzalabanleth v. Conseil des Abénakis de Wôlinak

Federal Court

de Montigny, J.

May 28, 2014.

Summary:

The election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council rendered a decision on September 1, 2012, which affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code. As a result, the Appeal Board declared that the results of the election held in Wôlinak on June 10, 2012, were valid. The applicant, a member of the Abénakis of Wôlinak, applied for judicial review of the Appeal Board's decision.

The Federal Court dismissed the application.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code - As a result, the Appeal Board declared that the results of the election held in Wôlinak on June 10, 2012, were valid - The applicant applied for judicial review of the Appeal Board's decision - The applicant claimed that two elements resulted in a reasonable apprehension of bias with respect to the Electoral Officer - First, he was appointed and paid by the Band Council, which was being led by the person who was re-elected as Chief at the June 10, 2012, election (Denis Landry) - Second, the Electoral Officer requested and obtained legal advice from Dionne, when Dionne was also counsel for the Landry family during the appeal proceedings against their deletion by the Registrar of Indian Affairs - The Federal Court rejected the allegation of bias - The Electoral Officer was appointed in accordance with ss. 1.5 and 2.9 of the Election Code - The impartiality of the Electoral Officer could not be questioned simply because he was appointed by a Band Council whose Chief was then re-elected, or because he earned compensation as a consultant - Nor did the court see anything wrong with the fact the Electoral Officer obtained legal advice from Dionne, who was the Band Council's legal counsel - With no evidence to the contrary, the assumption was that Dionne was respecting the rules that governed conflicts of interest and the code of discipline - See paragraphs 29 to 36.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Abenaki of Wôlinak held an election on June 10, 2012 - The applicant appealed against the election to the election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council - One of the Appeal Board's three members was the brother of the person who was re-elected as chief in the election - Given the applicant's concerns about the impartiality of the Appeal Board, the Board conferred consideration of the appeal to the Chair of the Board - The Appeal Board affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code - As a result, the Appeal Board declared that the results of the June 10, 2012 election were valid - The applicant applied for judicial review - The applicant alleged an apprehension of bias by the Appeal Board, whose members were appointed by the Band Council - In the applicant's opinion, that apprehension was reinforced by two of the Appeal Board's members asking the Chair to act as an investigator to ensure transparency - The Federal Court rejected the allegations of bias - The court stated that "Keeping in mind that the principles regarding the apprehension of bias must apply while considering the family relationships that necessarily link many members of a small band, and considering that the process the Appeal Committee followed minimized the risk of undue influence that one of the members may have had because of his relationship with the person whose election was being challenged, it seems to me that no individual who is fully aware of the situation would think that the Appeal Board rendered a decision that, in all likelihood, was not fair" - See paragraphs 30 and 37 to 42.

Indians, Inuit and Métis - Topic 163

Registration - Jurisdiction of Registrar - [See first Indians, Inuit and Métis - Topic 6249].

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - [See first Indians, Inuit and Métis - Topic 6249].

Indians, Inuit and Métis - Topic 6245.9

Government - Elections - Validity - The election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council (the respondent) affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code - As a result, the Appeal Board declared that the results of the election held in Wôlinak on June 10, 2012, were valid - The applicant applied for judicial review of the Appeal Board's decision - The applicant alleged that the respondent deliberately blocked access to many documents related to the election and to the Band Registry, interfering with his ability to request a revision of the electoral list by the Electoral Officer - The Federal Court dismissed the application - The court stated that "The issue of access to documents regarding the election and to the Band Registry were not raised before the Appeal Board and was not the subject of a decision, such that it cannot be the subject of this application for judicial review. At any rate, the evidence on file does not show that the Band Council acted in bad faith and the applicant had access to the Band Registry in another case before the Superior Court of Québec. Lastly, the problems accessing the Band Registry cannot be associated with a violation of the Election Code under paragraph 8.7(b) likely to have had an effect on the election result" - See paragraph 60.

Indians, Inuit and Métis - Topic 6245.9

Government - Elections - Validity - A September 1, 2012 decision of the election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code - As a result, the Appeal Board declared that the results of the election held in Wôlinak on June 10, 2012, were valid - The applicant applied for judicial review of the Appeal Board's decision - The applicant alleged that the Electoral Officer destroyed the election file less than two weeks after the Appeal Board's decision, thereby violating article 7.1 of the Election Code - The Federal Court dismissed the application - The court stated that "As for the destruction of the election file and ballots, under article 7.1 of the Election Code, the Electoral Officer must keep them when there is an appeal until the appeal is decided. This is what [the Electoral Officer] did when he destroyed the ballots on September 26, 2012. In the future, he would be well advised to keep these ballots until the after the 30-day deadline to file an application for judicial review under subsection 18.1(2) of the Federal Courts Act has passed. There was no wrongdoing under the circumstances, and additionally, there was no evidence on file that the ballots and election material would have shown that the vote was tainted or that its outcome would have been questioned" - See paragraph 61.

Indians, Inuit and Métis - Topic 6246

Government - Elections - Setting aside elections - [See first Indians, Inuit and Métis - Topic 6249].

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - The election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code - As a result, the Appeal Board declared that the results of the election held in Wôlinak on June 10, 2012, were valid - The applicant applied for judicial review of the Appeal Board's decision - One issue was whether the Appeal Board erred in law in considering that the Electoral Officer correctly exercised his jurisdiction pursuant to the Election Code, in particular with regard to the composition of the electoral list and the Band Registry - The Federal Court held that the standard of reasonableness should apply to this issue - The court noted that the issues involved the interpretation of the Election Code and, incidentally, the Membership Code of the Abénakis of Wôlinak Band, rather than the Indian Act - That reduced the impact of the decision on the legal system - Additionally, the issues in question were within the expertise of the Appeal Board - Lastly, the Chair of the Appeal Board, whose investigation report was essentially the impugned decision, was not new to the job - He had participated as coordinator for the drafting of the Election Code and the Membership Code - See paragraphs 25 to 28.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - [See second Administrative Law - Topic 2088].

Indians, Inuit and Métis - Topic 6249

Government - Elections - Electoral officer - The Abenaki of Wôlinak held an election on June 10, 2012 - The applicant appealed against the election to the election appeal board (Appeal Board) of the Abenaki of Wôlinak Band Council - The applicant stated that the Electoral Officer erred by refusing to make a ruling on his request for a revision of the electoral list - The Appeal Board affirmed the conclusion of its Chair's Investigation Report that there had not been any violation of the Abénakis of Wôlinak's Election Code - As a result, the Appeal Board declared that the results of the June 10, 2012 election were valid - The applicant applied for judicial review of the Appeal Board's decision - The Federal Court held that the decision of the Electoral Officer and that of the Appeal Board were not only reasonable, but were also correct - The Band Registrar was in charge of maintaining and storing the Registry - The Electoral Officer's role was limited to verifying whether the person whose name appeared on the electoral list in fact appeared on the Band Registry - At any rate, it was not sufficient to prove there was a violation of the Election Code for the election to be set aside - The applicant had to also show that the violation may have had an impact on the result of the election - The Electoral Officer's alleged violation of the Election Code would not have had any effect on the election result - See paragraphs 43 to 58.

Indians, Inuit and Métis - Topic 6249

Government - Elections - Electoral officer - [See first Administrative Law - Topic 2088].

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - [See both Indians, Inuit and Métis - Topic 6245.9].

Cases Noticed:

Landry et al. v. Savard et al. (2011), 391 F.T.R. 230; 2011 FC 720, refd to. [para. 20].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 23].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 23].

Martselos v. Salt River Nation #195 (2008), 411 N.R. 1; 2008 FCA 221, refd to. [para. 24].

Bacon v. Betsiamites Indian Band et al. (2009), 359 F.T.R. 235; 2009 FC 1060, refd to. [para. 25].

Cameron v Ashcroft Indian Band Council - see Cameron v. Canada (Minister of Indian Affairs and Northern Development) et al.

Cameron v. Canada (Minister of Indian Affairs and Northern Development) et al. (2012), 411 F.T.R. 138; 2012 FC 579, refd to. [para. 26].

Giroux v. Swan River First Nation (2006), 288 F.T.R. 55; 2006 FC 285, refd to. [para. 32].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 28].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 32].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 32].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 32].

Lower Nicola Indian Band v. Joe et al. (2011), 398 F.T.R. 290; 2011 FC 1220, refd to. [para. 33].

Lower Similkameen Indian Band v. Allison et al., [1997] 1 F.C. 475; 122 F.T.R. 1 (T.D.), refd to. [para. 53].

Statutes Noticed:

Abénakis of Wôlinak, Election Code - see Election Code of the Abénakis of Wôlinak.

Abénakis of Wôlinak, Membership Code - see Membership Code of the Abénakis of Wôlinak.

Election Code of the Abénakis of Wôlinak, sect. 1.3, sect. 1.4, sect. 1.5 [para. 46]; sect. 1.5, sect. 2.9 [para. 34]; sect. 5.1, sect. 5.3, sect. 5.4, sect. 5.5, sect. 5.6 [para. 47]; sect. 7.1 [para. 59]; sect. 8.1 [para. 37]; sect. 8.6 [para. 40]; sect. 8.7 [para. 52].

Membership Code of the Abénakis of Wôlinak, art. 40, art. 49 [para. 48].

Counsel:

Philippe Larochelle, for the applicant;

Paul-Yvan Martin, for the respondent.

Solicitors of Record:

Roy Larochelle Avocats Inc., Montreal, Quebec, for the applicant;

Martin, Camirand, Pelletier, s.e.n.c., Montreal, Quebec, for the respondent.

This application was heard on January 29, 2014, at Montreal, Quebec, before de Montigny, J., of the Federal Court, who delivered the following decision on May 28, 2014.