Orr et al. v. Peerless Trout First Nation, 2015 FC 1053

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: July 14, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 1053;[2015] F.T.R. TBEd. SE.008

Orr v. Peerless Trout First Nation, [2015] F.T.R. TBEd. SE.008

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. SE.008

Andrew Orr and Paul Houle (applicants) v. Peerless Trout First Nation (respondent)

(T-32-15; 2015 FC 1053)

Indexed As: Orr et al. v. Peerless Trout First Nation

Federal Court

Strickland, J.

September 8, 2015.

Summary:

This judicial review application arose out of the October 30, 2014, election on the Peerless Trout First Nation (PTFN) and two decisions of the Election Appeal Arbitrator pursuant to the PTFN Customary Election Regulations.

The arbitrator's first decision involved Orr, a PTFN member, who wanted to run for Chief in the election. He was told by the Election Officer that he was not able to run pursuant to s. 9.3(c) of the Election Regulations because he had a civil action pending against the PTFN. Orr appealed, arguing that s. 9.3(c) was unconstitutional. The Election Appeal Arbitrator dismissed the appeal, holding that the Election Officer properly applied s. 9.3(c) of the Election Regulations, s. 9.3(c) did not offend the Charter and was not otherwise ultra vires the PTFN Council. Orr applied for judicial review.

The arbitrator's second decision involved Houle, a PTFN member, who ran for the position of Chief in the October 30, 2014, election. Houle lost the election. He appealed, alleging numerous breaches of the Election Regulations. The Election Appeal Arbitrator allowed the election results to stand, notwithstanding some irregularities which were found not to have affected the result of the election. Houle applied for judicial review.

The Federal Court dismissed both applications for judicial review, except for quashing a costs award against Houle.

Civil Rights - Topic 103

Voting and other democratic rights - General - Democratic rights - Nature and scope of - See Indians, Inuit and Métis - Topic 6243 ].

Civil Rights - Topic 104

Voting and other democratic rights - General - Application of s. 3 of Charter - [See Indians, Inuit and Métis - Topic 6243 ].

Civil Rights - Topic 199

Voting and other democratic rights - Right to hold municipal or band office - Disqualification or removal - [See Indians, Inuit and Métis - Topic 6243 ].

Civil Rights - Topic 8348

Charter - Application - Exceptions - Reasonable limits prescribed by law - [See Indians, Inuit and Métis - Topic 6243 ].

Constitutional Law - Topic 5.2

General - General principles - Unwritten constitutional principles - Democracy - [See Indians, Inuit and Métis - Topic 6243 ].

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - [See Indians, Inuit and Métis - Topic 6243 ].

Constitutional Law - Topic 2510

Determination of validity of statutes or acts - Possible abuse of power - [See Indians, Inuit and Métis - Topic 6243 ].

Indians, Inuit and Métis - Topic 6243

Government - Elections - Candidates (incl. qualifications) - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) provided that any elector who was a plaintiff in a civil action against the PTFN was not eligible to be nominated to run in an election - A member of the PTFN (Orr), who was disqualified from running for Chief under 9.3(c), appealed, challenging the constitutionality of s. 9.3(c) - An Election Appeal Arbitrator ruled that s. 9.3(c) was not unconstitutional - Orr applied for judicial review - The Federal Court held that the arbitrator did not err in finding that s. 3 of the Charter, which guaranteed the right of Canadian citizens to be qualified for membership in the House of Commons or legislative assembly, did not apply to the PTFN election and, therefore, that s. 9.3(c) did not conflict with s. 3 of the Charter - Nor did the arbitrator err in his alternate analysis that, in any event, any such inconsistency was saved by s. 1 - Further, the court was not satisfied that there was a separate constitutionally guaranteed right to run for office in a band council election premised on the underlying principle of democracy, nor that s. 9.3(c) was an abuse of authority or contrary to the rule of law - See paragraphs 47 to 87.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) provided that any elector who was a plaintiff in a civil action against the PTFN was not eligible to be nominated to run in an election - A member of the PTFN (Orr), who was disqualified from running for Chief pursuant to s. 9.3(c) appealed, arguing that s. 9.3(c) was unconstitutional - An Election Appeal Arbitrator ruled that s. 9.3(c) was not unconstitutional - Orr applied for judicial review, arguing that the arbitrator erred on the constitutional issue - The Federal Court held that to the extent that the arbitrator was considering whether s. 9.3(1) conflicted with s. 3 of the Charter or unwritten democratic rights, the standard of review was correctness - The arbitrator's determination of whether s. 9.3(c) was contrary to the rule of law for attempting to prevent members of the PTFN from bringing actions against their government was a matter of interpretation of the Election Regulations, reviewable on the standard of reasonableness - See paragraphs 40 to 44.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - Houle, a member of the Peerless Trout First Nation (PTFN), lost an election for Chief - He appealed, alleging bribery by another candidate contrary to the PTFN Customary Election Regulations - As a preliminary matter, Houle sought to add additional witnesses, including himself, and to introduce hearsay evidence - The Election Appeal Arbitrator refused citing the Election Regulations, which the arbitrator considered to be a complete code, and fairness issues - The appeal was dismissed - Houle applied for judicial review - The Federal Court held that this issue was framed as one of procedural fairness which was reviewable on the correctness standard - Any interpretation issues would be reviewed on the standard of reasonableness - The court held that given the clear language of the Election Regulations, including their inflexibility with respect to the arbitrator's powers, and the fact that Houle was not actually challenging the validity of the five day appeal period in s. 16.2(b), the arbitrator reasonably interpreted and applied the Election Regulations and did not err or breach procedural fairness by refusing to allow Houle to add other witnesses or to give hearsay evidence - See paragraphs 23, 45 and 88 to 110.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - Houle, a member of the Peerless Trout First Nation (PTFN), lost an election for Chief - He appealed, alleging numerous breaches of the PTFN Customary Election Regulations - The Election Appeal Arbitrator allowed the election results to stand, notwithstanding some irregularities which were found not to have affected the result of the election - Houle applied for judicial review, arguing that the arbitrator erred in finding that the breaches of the Election Regulations regarding electoral practices did not materially affect the result - The Federal Court held that in determining this issue the arbitrator was required to interpret and apply the test set out in s. 16.8(b) of the Election Regulations - That attracted the reasonableness standard of review as did the arbitrator's ruling that Houle pay costs - See paragraph 46.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - Houle, a member of the Peerless Trout First Nation (PTFN), lost an election for Chief - He appealed, alleging numerous breaches of the PTFN Customary Election Regulations - The Election Appeal Arbitrator allowed the election results to stand, notwithstanding some irregularities which were found not to have affected the result of the election - Houle applied for judicial review, arguing that the arbitrator erred in finding that the breaches of the Election Regulations regarding electoral practices did not materially affect the result - The Federal Court noted that the arbitrator in his decision dealt with each of the allegations made by Houle and the evidence pertaining to those allegations - His weighing of the evidence was reasonable as were his factual findings based on the evidence - Further, this was not a circumstance where an election was generally and pervasively conducted badly - Rather, while there were irregularities and, in three instances, the election process was imperfectly conducted, those did not materially affect the election result - See paragraphs 111 to 127.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - Houle, a member of the Peerless Trout First Nation (PTFN), lost an election for Chief - He appealed, alleging numerous breaches of the PTFN Customary Election Regulations - The Election Appeal Arbitrator held that Houle had valid grounds of appeal because there were breaches of the Election Regulations; however, the election results stood because the irregularities were found not to have affected the result of the election - The arbitrator ordered Houle to pay half the costs of the appeal pursuant to s. 16.11 of the Regulations - Houle applied for judicial review - The Federal Court held that it was not reasonable for the arbitrator to uphold Houle's appeal, but then order costs against him because his appeal was fundamentally lacking merit - The award of costs against Houle was quashed - See paragraphs 128 to 137.

Indians, Inuit and Métis - Topic 6248

Government - Elections - Chief - Qualifications for office - [See Indians, Inuit and Métis - Topic 6243 ].

Indians, Inuit and Métis - Topic 6245.9

Government - Elections - Validity - [See fourth Indians, Inuit and Métis - Topic 6247 ].

Indians, Inuit and Metis - Topic 6246

Government - Elections - Setting aside elections - [See fourth Indians, Inuit and Métis - Topic 6247 ].

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - [See Indians, Inuit and Métis - Topic 6243 ].

Cases Noticed:

Orr v. Peerless Trout First Nation (2015), 608 A.R. 205; 2015 ABQB 5 (Master), refd to. [para. 5].

Taypotat v. Taypotat et al. (2013), 447 N.R. 352; 2013 FCA 192, refd to. [para. 6].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 8].

Crow v. Blood Indian Band Council et al. (1996), 107 F.T.R. 270 (T.D.), refd to. [para. 9].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 9].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 9].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 15].

Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; 72 N.R. 135; 32 D.L.R.(4th) 1, refd to. [para. 15].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 15].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 20].

Beamish et al. v. Miltenberger et al., [1997] NWTR 160, refd to. [para. 36].

Wrzesnewskyj v. Canada (Attorney General) et al., [2012] 3 S.C.R. 76; 435 N.R. 259; 296 O.A.C. 82; 2012 SCC 55, refd to. [para. 36].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 40].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 40].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 41].

Fort McKay First Nation Chief and Council v. Orr (2012), 438 N.R. 379; 2012 FCA 269, refd to. [para. 41].

Testawich v. Duncan's First Nation (2014), 467 F.T.R. 38; 2014 FC 1052, refd to. [para. 41].

D'Or v. St. Germain et al. (2014), 459 N.R. 197; 2014 FCA 28, refd to. [para. 44].

York v. Lower Nicola Indian Band, [2013] 2 C.N.L.R. 388; 443 N.R. 283; 2013 FCA 26, refd to. [para. 44].

Tsetta v. Yellowknives Dene First Nation Band Council (2014), 453 F.T.R. 267; 2014 FC 396, refd to. [para. 44].

Ferguson et al. v. Lavallee et al. (2014), 456 F.T.R. 245; 2014 FC 569, refd to. [para. 44].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 45].

Minde v. Ermineskin Cree Nation et al. (2008), 372 N.R. 268; 2008 FCA 52, refd to. [para. 45].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 45].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203; 161 D.L.R.(4th) 385, refd to. [para. 47].

William v. British Columbia et al. (2014), 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 47].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29, refd to. [para. 48].

Thompson v. Leq'a:mel First Nation Council (2007), 333 F.T.R. 17; 2007 FC 707, refd to. [para. 49].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1; 2002 SCC 68, refd to. [para. 50].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 50].

Frank v. Canada (Attorney General), 2014 ONSC 907, refd to. [para. 66].

Taypotat v. Taypotat et al. (2015), 471 N.R. 173; 2015 SCC 30, refd to. [para. 71].

Kahkewistahaw First Nation v. Taypotat - see Taypotat v. Taypotat et al.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 80].

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89; 2003 SCC 37, refd to. [para. 86].

Sparvier v. Cowessess Indian Band No. 73 et al., [1993] 3 F.C. 142; 63 F.T.R. 242 (T.D.), refd to. [para. 88].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 89].

Kehewin Cree Nation v. Mulvey et al. (2013), 556 A.R. 282; 584 W.A.C. 282; 2013 ABCA 294, refd to. [para. 91].

Polson v. Long Point First Nation Election Committee et al. (2007), 331 F.T.R. 25; 2007 FC 983, refd to. [para. 95].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 1999 CanLII 699, refd to. [para. 96].

Meeches v. Meeches et al. (2013), 447 N.R. 168; 2013 FCA 177, refd to. [para. 96].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 96].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 104].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304; 2001 SCC 39, refd to. [para. 106].

Jackson et al. v. Piikani Nation et al. (2008), 323 F.T.R. 188; 2008 FC 130, refd to. [para. 107].

Chief Electoral Officer (Yuk.) v Nelson et al., [2014] Yukon Cases Uned. (SC) 26; 2014 YKSC 26, refd to. [para. 112].

Flookes and Long v. Shrake (1989), 100 A.R. 98 (Q.B.), refd to. [para. 117].

Morgan v. Simpson, [1974] 3 All E.R. 722 (C.A.), refd to. [para. 119].

R. v. Cronin, [1875] O.J. No. 22, refd to. [para. 129].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 129].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 133].

Coombs et al. v. Canada (Attorney General), [2014] F.T.R. Uned. 85; 2014 FC 232, affd. (2014), 466 N.R. 116; 2014 FCA 222, refd to. [para. 133].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 133].

AstraZeneca Canada Inc. et al. v. Novopharm Ltd. (2010), 402 N.R. 95; 2010 FCA 112, refd to. [para. 133].

Baird v. Canada, [2006] F.T.R. Uned. 123; 2006 FC 205, affd. [2007] N.R. Uned. 3; 2007 FCA 48, refd to. [para. 133].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 3 [para. 65].

Constitution Act, 1867, Preamble [para. 61].

Customary Election Regulations of the Peerless Trout First Nation, sect. 9.3(c) [para. 58]; sect. 16.2 [para. 93]; sect. 16.11 [para. 130].

Counsel:

Priscilla Kennedy, for the applicants;

David C. Rolf, Q.C., for the respondent.

Solicitors of Record:

Davis, LLP, Edmonton, Alberta, for the applicants;

Parlee McLaws, LLP, Edmonton, Alberta, for the respondent

This application was heard in Edmonton, Alberta, on July 14, 2015, before Strickland, J., of the Federal Court, who delivered the following decision on September 8, 2015.