Tait et al. v. Johnson et al., 2014 FC 1102

• Judge: Manson, J.
• Court: Federal Court (Canada)
• Case Date: November 06, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2014 FC 1102;(2014), 468 F.T.R. 223 (FC)

Tait v. Johnson (2014), 468 F.T.R. 223 (FC)

MLB headnote and full text

Temp. Cite: [2014] F.T.R. TBEd. DE.027

In The Matter Of the under Lax Kw'alaams Band Election Regulations, SOR/2011-5

Andrew Tait, Lawrence Sankey, Barb Henry, Stan Dennis, Victor Kelly, Robbie Hughes, each being Councillors of 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 (applicants) v. 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 (respondents)

(T-1821-14; 2014 FC 1102)

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

Federal Court

Manson, J.

November 20, 2014.

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 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; 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.

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 applied for judicial review, arguing that the new Appeal Board was not properly constituted and, therefore, lacked jurisdiction - The Federal Court agreed - While the Election Regulations allowed for mid-term dismissals of the previous Appeal Board, the process followed by the respondent councillors in appointing the new Appeal Board was improper and unfair - Natural justice required an open and transparent process with appropriate notice to the parties concerned - Since the appointment of the Appeal Board was invalid, the decision to remove the Mayor was quashed - See paragraphs 40 to 75.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - A Complaints and Appeal Board, which was newly appointed under the Lax Kw'alaams Band Election Regulations, granted a petition to remove the elected Mayor (chief) - Six band councillors (applicants) applied for judicial review, challenging the Board's jurisdiction - The applicants argued that the standard of review, in considering the Board's jurisdiction (i.e., its interpretation of the Election Regulations), should be correctness because its members were recently appointed and lacked experience and familiarity with the applicable legislation - The Federal Court disagreed that lack of formal training on the part of the new Appeal Board members transformed the standard of review of a home statute into one of correctness - However, the court agreed that on the facts of this case, less deference should be given in applying the standard of reasonableness - See paragraphs 37 and 38.

Indians, Inuit and Métis - Topic 6247

Government - Elections - Appeal tribunals (incl. standard of review) - A Complaints and Appeal Board appointed under the Lax Kw'alaams Band Election Regulations granted a petition to remove the elected Mayor (chief) for inappropriate conduct - Six band councillors applied for judicial review, challenging the Appeal Board's jurisdiction, alleging bias and a breach of the duty of fairness, and claiming that the decision was incorrect and/or unreasonable - The Federal Court discussed the standard of review - Since s. 132 of the Election Regulations contained a privative clause, s. 18.1 of the Federal Courts Act applied - The standard of correctness applied to questions of procedural fairness - As to the jurisdictional issue (i.e., interpretation of the Election Regulations), "less deference should be given in applying the standard of reasonableness" - The remaining issues involved questions of mixed fact and law and discretion, and the standard of reasonableness applied - See paragraphs 35 to 39.

Cases Noticed:

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. 36].

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 36].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 37].

Fort McKay First Nation Chief and Council v. Orr (2012), 438 N.R. 379; 2012 FCA 269, refd to. [para. 38].

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. 38].

Bugle v. Peoples' Government et al., [1997] F.T.R. Uned. 247; 2014 FC 1102, refd to. [para. 41].

Bugle v. Lameman - see Bugle v. Peoples' Government et al.

Sparvier v. Cowessess Indian Band No. 73, [1993] 3 F.C. 142; 63 F.T.R. 242 (T.D.), refd to. [para. 45].

Fitzpatrick v. Boucher (2012), 434 N.R. 199; 2012 FCA 212, refd to. [para. 47].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 47].

Desnomie v. Peepeekisis First Nation (2007), 312 F.T.R. 43; 2007 FC 426, refd to. [para. 74].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 74].

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. 21(1) [para. 11]; sect. 22(b) [para. 59].

Counsel:

F. Matthew Kirchner and Lisa C. Glowacki, for the applicants;

Stephen R. Schachter and Kevin D. Loo, for the respondents.

Solicitors of Record:

Ratcliff & Company LLP, North Vancouver, British Columbia, for the applicants;

Nathanson, Schachter & Thompson LLP, Vancouver, British Columbia, for the respondents.

This application was heard in Vancouver, British Columbia, on November 6, 2014, before Manson, J., of the Federal Court, who delivered the following decision on November 20, 2014.