Tait et al. v. Johnson et al., (2015) 479 N.R. 298 (FCA)

• Judge: Gauthier, Webb and Gleason, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 26, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 N.R. 298 (FCA);2015 FCA 247

Tait v. Johnson (2015), 479 N.R. 298 (FCA)

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[French language version follows English language version]

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

Temp. Cite: [2015] N.R. TBEd. NO.008

Helen Johnson, Carl Sampson Jr., Russel Mather, Ted White, Geraldine Alexcee, Chris Sankey, each being councillors of the Lax Kw'alaams Band, and John Helin, and Rudy Kelly, Allan Helin Sr., Sharon Hurdell, Sharon Haldane and Cheryl Tait acting as the Complaints and Appeal Board (appellants) v. Andrew Tait, Lawrence Sankey, Barb Henry, Stan Dennis, Victor Kelly, Robbie Hughes, each being councillors for the Lax Kw'alaams Band, acting on their own behalf and on behalf of the Lax Kw'alaams Band Council and members of Lax Kw'alaams Band, and Garry Reece, Mayor of the Lax Kw'alaams Band (respondents)

(A-519-14; 2015 FCA 247; 2015 CAF 247)

Indexed As: Tait et al. v. Johnson et al.

Federal Court of Appeal

Gauthier, Webb and Gleason, JJ.A.

November 5, 2015.

Summary:

The Lax Kw'alaams Band Council consisted of 12 councillors and a Mayor (chief). Six of the band councillors (respondents) passed a resolution to present a petition to have the elected Mayor (Reece) removed for inappropriate conduct (Lax Kw'alaams Band Election Regulations). The existing Complaints and Appeal Board was dismissed and a new Appeal Board appointed to hear the petition. The new Appeal Board approved the petition, and declared the position of Mayor to be vacant. Two of the respondent counsellors asked the person who had come in second in the mayoral elections (J. Helin) to serve as the new Mayor. The six other band councillors applied for judicial review. At issue was whether the new Appeal Board was properly constituted and had jurisdiction to accept and decide on the band council's petition; whether the new Appeal Board was biased or breached the duty of fairness; and whether the new Appeal Board's decision was incorrect and/or unreasonable.

The Federal Court, in a decision reported 468 F.T.R. 223, held that: (1) the dismissal of the Previous Appeal Board was unreasonable and contrary to the Election Regulations and invalid; (2) the process for the appointment of the new Appeal Board was unfair and unreasonable and, as such, the new Appeal Board was not properly constituted and did not have jurisdiction to accept and decide the band council's petition to remove the Mayor from office; and (3) given that the appointment of the new Appeal Board was invalid, the decision to remove Reece as Mayor was quashed and the appointment of J. Helin was invalid. Reece remained Mayor. The respondents appealed from the judgment and the six other band councillors cross-appealed, seeking to have the judgment amended to add a declaration that the petition that purportedly authorized or was submitted by the Band Council to remove the Mayor from office did not conform to Part 6 of the Band's Election Regulations.

The Federal Court of Appeal allowed the appeal in part, by slightly varying the Federal Court's judgment. The court also granted the cross-appeal and modified the Federal Court judgment to read as follows:

"1. The dismissal of the previous Appeal Board was unreasonable, contrary to the Election Regulations and invalid;

2. The Band Council therefore had no authority to appoint the New Appeal Board;

3. Given that the appointment of the New Appeal Board was invalid, the decision to remove Garry Reece as Mayor is quashed and the appointment of John Helin as Mayor is invalid. Garry Reece remains Mayor;

4. The Band Council Resolution of July 28, 2014 seeking the removal of the Mayor did not conform to section 22 of the Election Regulations and is invalid; and

5. The application is otherwise dismissed."

In the result, the decision of the Federal Court, quashing the decision to remove Reece as Mayor and declaring the decision invalid, remained unchanged.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - The Lax Kw'alaams Band Council consisted of 12 councillors and a Mayor (chief) - Six of the band councillors (respondents) passed a resolution to present a petition to have the elected Mayor (Reece) removed for inappropriate conduct (Lax Kw'alaams Band Election Regulations) - The existing Complaints and Appeal Board was dismissed and a new Appeal Board appointed to hear the petition - The new Appeal Board approved the petition and declared the Mayor's position vacant - The other six councillors claimed that the new Appeal Board was not properly constituted and, therefore, lacked jurisdiction - The Federal Court of Appeal held that the new Appeal Board was a nullity because the Band Council had no authority under the Elections Regulations to dismiss the three members of the previous Appeal Board - Therefore, the new Appeal Board had no authority to decide whether the Mayor should be removed from office - The court suggested a procedure that should be applied in any future process to remove a mayor or councillor from office to ensure procedural fairness - See paragraphs 27 to 45.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - The Federal Court of Appeal held that the standard of review applicable to decisions of a Band Council interpreting its Election Regulations was reasonableness - See paragraph 28.

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 27].

Fort McKay First Nation Chief and Council v. Orr (2012), 438 N.R. 379; 2012 FCA 269, refd to. [para. 27].

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. 28].

Statutes Noticed:

Lax Kw'alaams Band Election Regulations - see Indian Act Regulations (Can.), Lax Kw'alaams Band Election Regulations.

Indian Act Regulations (Can.), Lax Kw'alaams Band Election Regulations, SOR/2011-5, sect. 22, sect. 23, sect. 24, sect. 25 [para. 9].

Counsel:

Stephen Schachter and Kevin Loo, for the appellants;

Gregory McDade and Michelle Bradley, for the respondents.

Solicitors of Record:

Nathanson, Schachter & Thompson LLP, Vancouver, British Columbia, for the appellants;

Ratcliff & Company, Vancouver, British Columbia, for the respondents.

This appeal was heard in Vancouver, B.C., on October 26, 2015, before Gauthier, Webb and Gleason, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by Gleason, J.A., on November 5, 2015.