T-626-02
2003 FC 850
Preston Sound (Applicant)
v.
Swan River First Nation, Alberta, Lee Twinn, Charles Chalifoux, John Giroux, Gerald Davis, Leon Chalifoux, Councillors of the Swan River First Nation, Robert Sound, Ray Dupres, Electoral Officer (Respondents)
Indexed as: Soundv. Swan River First Nation (F.C.)
Federal Court, Heneghan J.--Edmonton, April 9; Ottawa, July 10, 2003.
Native Peoples -- Elections -- Judicial review of decision of Swan River Election Appeal Committee finding applicant guilty of corrupt election practices, ousting him from Council seat -- Person applicant edged out by two votes filing notice of appeal -- Band Council elections conducted on family group basis -- Voting eligibility depending on Council's recognition of voter's family group membership -- Whether eight siblings of applicant's mother properly included on electors' list -- Appeal allowed without providing reasons as not required by customary election regulations -- F.C.T.D. Judge granted interlocutory injunction restraining by-election -- Application allowed, matter sent back to Committee for redetermination -- Reasonable apprehension of bias as person whose appeal letter accused applicant of corrupt practices member of Appeal Committee -- Breach of procedural fairness (audi alteram partem) -- Applicant denied meaningful opportunity to present case -- Content of duty of fairness tests laid down by S.C.C. in Baker v. Canada (Minister of Citizenship and Immigration) followed -- Applicant having been excluded whilst other side gave evidence, not knowing case to be met.
Administrative Law -- Judicial Review -- Certiorari -- Judicial review of First Nation Election Appeal Committee decision finding applicant guilty of corrupt election practice, ousting him from Council seat -- Person whose appeal letter accused applicant of promoting, aiding corrupt election practices sat on Appeal Committee -- Reasonable apprehension of bias under test in Committee for Justice and Liberty v. National Energy Board -- Procedural fairness (audi alteram partem) breached as applicant excluded from appeal hearing whilst Committee heard evidence against him -- Applicant not knowing case to be met -- Content of duty of fairness tests in S.C.C. decision Baker v. Canada (Minister of Citizenship and Immigration) followed.
This was an application for judicial review of a decision of the Election Appeal Committee, Swan River First Nation that applicant was guilty of corrupt election practices, contrary to the Customary Election Regulations of the Swan River First Nation.
The applicant won a council election, defeating respondent, Robert Sound, by a margin of two votes. The latter filed a notice of appeal. The Regulations had been amended following the Supreme Court of Canada decision in Corbiere v. Canada (Minister of Indian and Northern Affairs) to provide for voting by off-reserve members and removing the requirement that an elector be resident on the reserve for at least three months prior to election day. Band Council elections were conducted on the basis of family groups, of which there were just six. Eligibility to vote depends upon recognition by Council of a potential voter's membership in a particular family group. Robert Sound's notice of appeal questioned the propriety of applicant's involvement in the process by which eight siblings of his mother were included on the electors' list as members of the Sound family group. The Regulations provide that only electors registered to a family group may vote and then only for a candidate from his own group.
Robert Sound's appeal was sustained by majority decision without reasons being given as not required under the customary election regulations. As results of that decision, applicant was removed from Council and could not stand as a candidate in the by-election. Preston Sound launched this application and also sought an interlocutory injunction to restrain holding of the by-election. The latter was granted by order of Blanchard J.
Applicant says that the procedure followed by the Election Appeal Committee breached natural justice in two respects. (1) There was a reasonable apprehension of bias in that Leon Chalifoux, who had appealed applicant's election, alleging corrupt practices, was a member of the Election Appeal Committee. (2) There was a lack of procedural fairness in the conduct of the hearing in that he was excluded when Robert Sound and other family members gave evidence against him. Nor was he afforded an opportunity of cross-examination. In addition, it was submitted that the Committee exceeded jurisdiction by basing its decision on irrelevant considerations and no evidence. Applicant relied upon the admission of Leon Chalifoux that he was unaware of any evidence that applicant had bribed or threatened voters. In reliance upon the Supreme Court of Canada's judgment in Baker v. Canada (Minister of Citizenship and Immigration), applicant submitted that the nature of the impugned decision was such as to dictate that reasons be provided. The decision cost him his job and harmed his reputation.
Respondents made reference to a Supreme Court of Canada decision--Arsenault-Cameron v. Prince Edward Island--as authority for the proposition that true impartiality does not require that a judge be devoid of existing opinions or sympathies. Respondents further argued that Chalifoux's appeal letter concerned the Regulations amendments and a case before the Alberta Court of Queen's Bench rather than applicant's election. Respondents noted that applicant had failed to seek mandamus to compel the Electoral officer to produce the Committee record. In respondents' submission, it is a corrupt election practice to arrange for persons to vote who are not entitled to vote; if the number improperly allowed to vote exceeds the margin of victory, the election has to be overturned. Bribery, threats and intimidation are merely examples of corrupt election practices; causing an ineligible person to vote is also an illegal practice.
Held, the application should be allowed and the matter returned to the Committee for redetermination in accordance with the reasons herein.
The Court was persuaded by applicant's procedural fairness arguments. There was a reasonable apprehension of bias resulting from the participation of Leon Chalifaoux in the Committee decision and conduct of the appeal hearing was such as to breach the audi alteram partem principle.
Since the Regulations were silent as to the procedure to be followed in Committee hearings, the common law duty of procedural fairness came into play. The central question in determining whether the duty to provide procedural fairness has been met is whether the individual was accorded a meaningful opportunity to fully and fairly present his case. In the Baker case, the Supreme Court set out a non-exhaustive list of factors for consideration in determining the content of the duty of fairness: (1) nature of the decision and the process followed; (2) nature of the statutory scheme and terms of the legislation pursuant to which the body operates; (3) importance of the decision to the individual affected; (4) legitimate expectations of person challenging the decision; and (5) procedural choices made by the agency.
The notice of appeal letter provided insufficient information for applicant to have known the case he had to meet.
In considering the five points listed in Baker, the following observations were made. (1) The decision was regulatory and adversarial. The purpose of the appeal process was to discover improper election practices and to punish the guilty by stripping away their elected status. It is also aimed at preserving the integrity of the Swan River Nation's election process. (2) The regulatory scheme governs all aspects of elections and the holding of elected office and is intended to reflect the Nation's customary election practices. A degree of fairness is inherent in the provision for a hearing before the Committee. (3) The decision would have a significant impact upon applicant's employment and financial condition. Of even greater significance may be the damage to his reputation within the community. (4) It was not apparent that applicant had a legitimate expectation that the Committee would follow any procedure not stated in the Regulations. (5) The procedure chosen by the Committee herein was to permit interested parties to make oral submissions but not to hear what was said by the other side.
Applicant ought to have been granted an opportunity to hear, or have in written form, Robert Sound's specific allegations. In failing to provide a fair procedure, the Committee breached the duty of fairness to both applicant and Robert Sound.
Upon an application of the test in Committee for Justice and Liberty et al. v. National Energy Board et al., it had to be concluded that an informed person, viewing the matter realistically and practically and having thought the matter through, would come to the conclusion that Leon Chalifoux would not decide the appeal fairly. There was, accordingly, a reasonable apprehension of bias. While Leon Chalifoux's appeal letter did question the amendments that had been made to the Regulations, it also disclosed his belief in applicant's guilt of corrupt election practices and that his election should be vacated.
The argument about applicant not having sought mandamus was not well taken: in applicant's notice of application for judicial review he asked that the Committee provide minutes of meetings, pursuant to Federal Court Rules, 1998, rule 317. It was no fault of applicant that the tribunal record was not before this Court.
Furthermore, as held in Baker, this was a case in which procedural fairness required that a written explanation of the Committee decision should have been provided even though the Regulations fail to state that reason should be given.
statutes and regulations judicially
considered
| Federal Court Rules, 1998, SOR/98-106, r. 317 (as am. by SOR/2002-417, s. 19). |
| cases judicially considered |
| applied: |
| Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781; (2001), 204 D.L.R. (4th) 33; [2001] 10 W.W.R. 1; 93 B.C.L.R. (3d) 1; 34 Admin. L.R. (3d) 1; 274 N.R. 116; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115. |
| distinguished: |
| Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241. |
| considered: |
| R. v. S. (R.D.), [1997] 3 S.C.R. 484; (1997), 161 N.S.R. (2d) 241; 151 D.L.R. (4th) 193; 1 Admin. L.R. (3d) 74; 118 C.C.C. (3d) 353; 10 C.R. (5th) 1; 218 N.R. 1; Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851; (1999), 201 Nfld. & P.E.I.R. 1; 267 N.R. 386; Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221; (2001), 194 D.L.R. (4th) 385; 26 Admin. L.R. (3d) 171; 265 N.R. 2; 140 O.A.C. 201. |
| referred to: |
| Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; Sound v. Swan River First Nation, 2002 FCT 602; [2002] F.C.J. No. 790 (T.D.) (QL); Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; (1996), 137 D.L.R. (4th) 142; 37 C.R.R. (2d) 189; 201 N.R. 1; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Mercer v. Homuth (1924), 55 O.L.R. 245 (S.Ct.). |
APPLICATION for judicial review of a decision of a First Nation Election Appeal Committee, that applicant was guilty of corrupt election practices and vacating his election as councillor. Application allowed.
| appearances: |
| Anne S. de Villars, Q.C. for applicant. |
| James K. McFadyen for respondents. |
| solicitors of record: |
| de Villars Jones, Edmonton, for applicant. |
| Parlee McLaws, LLP, for respondents. |
The following are the reasons for order and order rendered in English by
Heneghan J.:
INTRODUCTION
[1]Mr. Preston Sound (the applicant) seeks judicial review of the decision made by the Election Appeal Committee, Swan River First Nation on March 26, 2002. In its decision the Election Appeal Committee (the Committee) decided that the applicant was guilty of corrupt election practices and pursuant to the Customary Election Regulations of the Swan River First Nation (the Regulations), his election as councillor was vacated.
FACTS
[2]The applicant is a member of the Swan River First Nation, Alberta. He was first elected a Band councillor in 1996 for a three-year term. He was re-elected in 1999 and upon the expiry of that term, ran as a candidate in the council elections held on March 8, 2002. He was re-elected in 2002, defeating the respondent, Robert Sound, by a two-vote margin.
[3]Mr. Robert Sound, a respondent in this application, filed a notice of appeal against this result. The notice of appeal was filed pursuant to the Regulations.
[4]Mr. Leon Chalifoux, Mr. Gerald Davis, Mr. Lee Twinn, and Mr. Charles Chalifoux were also elected as Band councillors for the Swan River First Nation on March 8, 2002. They are respondents in this application.
[5]Mr. Ray Dupres was the Electoral Officer appointed by the Band Council to conduct the March 2002 election in accordance with the Regulations. Although a respondent to this application, he did not participate in it.
[6]Swan River First Nation is a customary Band. Its election procedures are governed by the Regulations. The Regulations were first adopted in 1993 and were intended to express the customary election practices of the Band. Among other things, the Regulations address eligibility to vote, inclusion on the voters' list, conduct of elections and appeals against election results.
[7]Amendments to the Regulations must be made by Band Council Resolution. The Regulations were amended in 1996 and again in 2002. The latter amendments were made in response to the decision of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. These amendments were passed pursuant to a Band Council Resolution, dated January 28, 2002.
[8]The 2002 amendments provided for voting by off-reserve members, the giving of notice of an election to off-reserve members, the location of polling stations, the use of mail-in ballots, as determined by the Council, and the counting of ballots and mail-in ballots. The 2002 amendments also changed the definition of "elector", removing the requirement that an elector be resident on the reserve for at least three months prior to election day.
[9]Elections for the Band Council (the Council) are conducted on the basis of family groups. According to the evidence of the applicant, there are six main family groups for the Band. These main family groups include the Chalifoux and Sound families. Eligibility to vote depends upon recognition by the Council of a potential voter's membership in a particular family group, pursuant to section 7 of the Regulations. A person who disputes the inclusion of another person on the list of electors may appeal such inclusion pursuant to section 7.3. An appeal in this r egard is dealt with by the Council pursuant to section 7.5.
[10]The notice of appeal filed by the respondent Robert Sound against the election of the applicant as a councillor on March 8, 2002, raised issues about the propriety of the applicant's involvement in the process by which eight siblings of his mother were included on the electors' list as members of the Sound family group.
[11]Pursuant to section 8.10 of the Regulations, only electors who are registered to a family group may vote in an election. Furthermore, an elector may only vote for candidates from his or her family group and may vote for only one such candidate.
[12]Other appeals were filed following the election on March 8, 2002. The respondent Leon Chalifoux filed a notice of appeal, challenging the results of the election of certain councillors, including the applicant and raising, among other things, improprieties in the manner in which the Regulations were amended in January 2002. The respondent Mr. Chalifoux also raised an allegation of corrupt election practices in his notice of appeal.
[13]The appeals were heard by the Committee on March 21, 2002. Pursuant to section 12.5(a) of the Regulations, the Committee was composed of the elected Council excluding the councillor who was the subject of an appeal. The applicant was a member of the Committee that heard the appeals of the respondent Leon Chalifoux and Mr. Dwain Davis. In the hearings held on March 21, 2002, it appears that the appellants made allegations and submissions before the Committee in the absence of the person affected, that is, the councillor whose election was under appeal.
[14]In the case of the respondent Leon Chalifoux, his appeal was not heard on its merits. An objection was raised that Mr. Chalifoux was seeking to appeal the election of councillors not in his family group. Pursuant to section 8 of the Regulations, Mr. Chalifoux had no standing to bring such an appeal. His appeal was withdrawn.
[15]The final appeal heard on March 21 was that of the respondent Robert Sound against the election of the applicant. The Committee for the purposes of that appeal, was composed of respondents Lee Twinn, Charles Chalifoux, John Giroux, Gerald Davis and Leon Chalifoux.
[16]Robert Sound appeared before the Committee in the absence of the applicant. He made his submissions. He was accompanied by approximately ten family members, including elders. It appears that submissions were made to the Committee by these family members, in addition to those made by Robert Sound.
[17]The applicant then appeared before the Committee in the absence of Robert Sound. According to his evidence, the applicant advised the Committee that he did not know what to say since he did not know the allegations against him. It appears from the cross-examination of the applicant on his affidavit filed in this proceeding that he was provided with a copy of the notice of appeal filed by the respondent Robert Sound prior to the Committee hearing.
[18]On March 26, 2002, the Committee met to consider the disposition of the appeal against the applicant. It upheld the appeal and notified the applicant first by telephone, followed by a letter written on March 26, 2002, and signed by Leon Chalifoux. That letter provides as follows:
| To Preston Sound March 26, 02 |
| This letter is notifying you pursuant to 12.10 that the appeal brought forth by Robert Sound has been upheld pursuant to 12.9(c) II, 12.1(c) (corrupt election practices) and that a by-election be called pursuant to 12.9 (c) II. |
| Thank you, |
| Leon Chalifoux |
| Spokesperson |
[19]Paragraph 12.1(c) and section 12.9 of the Regulations provide as follows:
| 12.1 Within five (5) consecutive days of and including the Election Day, or in the event of a Councillor elected by acclamation, within five (5) days of and including the day nominations close, any Elector within a Family Group may appeal the results of an Election, By-election or Run-off Election of a Councillor for their Family Group if, on reasonable and probable grounds they believe: |
. . .
| ( c) A Candidate was guilty of promoting or aiding corrupt Election practices including but not limited to, bribery, threats and intimidation of Candidates, Electors, the Electoral Officer or Polling Clerks. |
. . .
| 12.9 Within five (5) days of the meeting, the Committee will promptly make one of the following decisions: |
| (a) To deny the appeal on the basis the evidence presented did not fully and properly establish the necessary grounds for an appeal; |
| (b) To uphold the grounds for an appeal but allow the results of the Election in question to stand as the infraction did not materially or directly affect the result of the Election; or |
| ( c) To uphold the appeal and call for: |
. . .
| ii) a new Election, By-election or Run-off Election for only those offices materially and directly affected; or |
[20]On March 29, 2002, Mr. Chalifoux wrote another letter in which he indicated that there would be no reasons given for the decision. In part, the letter of March 29 provides as follows:
A majority decision was reached march 26, 2002 in upholding the appeal brought forth by Robert Sound (prior to the resigning of the electoral officer) based on his oral presentation to the election appeal committee held on march 21, 2002, . . .
The committee stands by this decision, The customary election regulations do not require that the committee disclose any of the reasons for their decision to anyone, nor does it require that a motion be passed to make this a decision. A decision is a decision!
[21]As the result of the decision of the Committee, the applicant was removed as councillor. A by-election was to be called and the applicant, pursuant to section 17.3 of the Regulations, was ineligible to stand as a candidate in that by-election.
[22]The by-election was scheduled for May 30, 2002. On April 18, 2002, the applicant commenced this application for judicial review. He also sought an interlocutory injunction to prevent the holding of the by-election pending the outcome of this application. By order dated May 27, 2002 [2002 FCT 602; [2002] F.C.J. No. 790 (T.D.) (QL)], Justice Blanchard issued an interlocutory injunction in favour of the applicant.
APPLICANT'S SUBMISSIONS
[23]The applicant argues that the procedure before the Election Appeal Committee breached the principles of natural justice in two respects. First, he raises the question of a reasonable apprehension of bias on the part of the respondent Leon Chalifoux. He says that because Mr. Leon Chalifoux filed a notice of appeal against his election alleging, among other things, corrupt election practices, that Mr. Chalifoux lacked an open mind relative to the applicant. The applicant says Mr. Chalifoux should not have been a member of the Committee and his presence on the Committee as a decision maker gives rise to a reasonable apprehension of bias which taints the proceeding.
[24]The second issue raised under the heading of natural justice by the applicant is a lack of procedural fairness in the conduct of the hearing. He says that the process followed by the Committee was unfair since he was not present to hear the allegations raised by Robert Sound against him, nor the evidence submitted by family members and others on behalf of Mr. Sound. As well, the applicant argues that the lack of an opportunity to cross-examine the witnesses is another aspect of a lack of procedural fairness in the conduct of the hearing. The applicant relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 in support of this argument.
[25]Next, the applicant argues that the Committee abused its discretion and thereby exceeded its jurisdiction. In this regard, the applicant submits that the Committee based its decision on irrelevant considerations and no evidence.
[26]The applicant argues that reliance on evidence relating to the manner in which the Regulations were amended, in compliance with the decision in Corbiere, supra, constitutes reliance on an irrelevant consideration. Likewise, he says that any evidence relating to the manner in which the electors' list was amended to include members of his mother's family is an irrelevant consideration. The applicant says that the respondent Robert Sound had already pursued an unsuccessful appeal against the amendment of the electors' list, in accordance with section 8 of the Regulations, and his appeal was unsuccessful.
[27]The applicant says that these matters are irrelevant to his election as a councillor and his conduct in running as a candidate. He also argues that these matters are irrelevant to a determination of whether he was guilty of corrupt election practices.
[28]As well, the applicant argues that there is no evidence to support a finding that he was guilty of corrupt election practices. He relies on the cross-examination of Mr. Leon Chalifoux in which the latter admitted that he was unaware of any evidence that the applicant had bribed or threatened voters or committed acts of intimidation.
[29]Finally, the applicant submits that the absence of reasons for the decision of the Committee voids its decision. Again relying on the decision in Baker, supra, he argues that the nature of the decision requires that reasons be provided. As a result of the decision of the Committee, he lost his job and suffered harm to his reputation in the community. He also does not know why the decision was made.
RESPONDENTS' SUBMISSIONS
[30]The respondents argue that there was no evidence of a breach of the principles of natural justice resulting from an alleged failure to provide details of the allegations against the applicant. They say the notice of appeal submitted by Robert Sound adequately provided the basis of the charges against the applicant. The respondents rely upon the cross-examination conducted of the applicant in which he acknowledged that he had received a copy of the notice of appeal.
[31]Secondly, the respondents submit the applicant has failed to show a reasonable apprehension of bias. Relying on R. v. S. (R.D.), [1997] 3 S.C.R. 484, the respondents argue that an allegation of bias must be reasonable and related to the circumstances of the case. They also rely on Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, where the Supreme Court of Canada held that true impartiality does not require that a judge be devoid of existing opinions or sympathies. By analogy, the respondents submit that this case also applies to administrative decision-makers.
[32]The respondents rely on Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, as setting the standard for what constitutes a reasonable apprehension of bias.
[33]The respondents argue that there is no evidence that Leon Chalifoux had formed any pre-judgment or opinion that the applicant's election involved irregularities or corrupt election practices. Mr. Chalifoux withdrew his appea l without making any statements and his appeal letter itself related entirely to the amendments of the Regulations and to matters at issue in the action that is before the Court of Queen's Bench in Alberta, not to the specific election of the applicant. Th e respondents also say that Leon Chalifoux and the rest of the Committee listened carefully to the presentations of both Robert Sound and the applicant.
[34]The respondents submit that the applicant has failed to demonstrate any breach of the audi alteram partem principle or any other breach of procedural fairness. They rely on Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, where it was held by the Supreme Court of Canada that an actual breach of the audi alteram partem principle must be demonstrated by an applicant.
[35]The respondents argue that the applicant was present at the hearing before the Committee and he submitted evidence which was fully considered by the Committee. Further, they argue that the applicant fully understood the reasons why the appeal was brought by Robert Sound and that he responded to all the issues raised in Robert Sound's appeal before the Committee at the hearing on March 21, 2002. The respondents state that the cross-examin ations of Leon Chalifoux and the applicant support this claim.
[36]The respondents submit that the applicant has not requested the record of the Committee from the Electoral Officer, other than by letter, and the applicant has not sought mandamus to compel the Electoral Officer to produce the record of the Committee. The respondents argue that this suggests that the applicant is not interested in having the record put before the Court.
[37]Furthermore, the respondents submit that the applicant has not presented any evidence in this judicial review from the two members of the Committee who voted against upholding Robert Sound's appeal of the applicant's election.
[38]The respondents argue that the standard of review in this case is reasonableness and rely on the majority judgment in Ellis-Don Ltd., supra, in support of this. They say that the Committee made a reasonable decision without taking irrelevant considerations into account. Robert Sound alleged that eight people were improperly added to the Sound family group's list of electors. The applicant knew that his mother's siblings were challenged as being members of the Sound family group.
[39]The respondents argue that it is a corrupt election practice to arrange for persons to vote who are not entitled to vote. If the number of persons who were improperly allowed to vote exceeds the difference in votes between two candidates, then the election must be overturned: see Mercer v. Homuth (1924), 55 O.L.R. 245 (S.Ct.).
[40]The respondents submit that causing an ineligible person to vote is an illegal practice and fits within the definition of a corrupt election practice in paragraph 12.1(c) of the Regulations. Bribery, threats and intimidation are merely examples of corrupt election practices and are not an exhaustive list. The respondents submit, relying on Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, that the right of a council to expel a councillor found to have participated in a corrupt election practice is not subject to judicial review and is a requirement of democratic governance.
ANALYSIS
[41]In my opinion, the applicant's arguments regarding breaches of procedural fairness are persuasive. There exist both a reasonable apprehension of bias through the involvement of Leon Chalifoux in the decision of the Committee and a breach of the audi alteram partem principle in the way the applicant's appeal hearing was conducted.
[42]The Regulations in this case have codified the Swan River First Nation's customs regarding elections. These Regulations provide an appeal mechanism for a challenge to perceived election impr oprieties. They provide that the person whose election is disputed must receive a copy of the notice of the appeal and that within 14 days of receipt, the Committee will convene a meeting for the purpose of hearing the appeal (paragraph 12.4(a) and section 12.6.)
[43]Section 12.8 of the Regulations allows the person appealing the election result, the candidate whose election is being appealed and other interested parties or their representatives to present oral or written submissions to the Committee at the meeting. Within five days of the meeting, the Regulations provide that the Committee will make a decision and the Electoral Officer will notify affected parties of the decision (sections 12.9 and 12.10 of the Regulations).
[44]The Regulations are silent as to the exact procedure to be followed at Committee hearings held pursuant to sections 12.6 and 12.8. In such a situation, it is well established that the common law duty of procedural fairness is triggered where an administrative decision affects "the rights, privileg es or interests of an individual" (see Cardinal et al. v. Director of Kent Institution , [1985] 2 S.C.R. 643, at page 653; and Baker, supra, at paragraph 20), and that silence in legislation is to be interpreted in line with the duty of fairness. As stated in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, by Chief Justice McLachlin, at paragraphs 21-22:
Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal's process to comport with principles of natural justice: Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at p. 503; Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767, at pp. 783-84. In such circumstances, administrative tribunals may be bound by the requirement of an independent and impartial decision maker, one of the fundamental principles of natural justice: Matsqui, supra (per Lamer C.J. and Sopinka J.); Régie, supra, at para. 39; Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405. Indeed, courts will not lightly assume that legislators intended to enact procedures that run contrary to this principle, although the precise standard of independence required will depend "on all the circumstances, and in particular on the language of the statute under which the agency acts, the nature of the task it performs and the type of decision it is required to make": Régie, at para. 39.
However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. See generally: Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.
[45]In Baker, supra, the Supreme Court of Canada emphasized that the duty of procedural fairness is flexible and depends on an appreciation of the context of the particular statute and the rights affected. As for the participation of an individual affected by a decision, the Supreme Court held that an individual is to have a meaningful opportunity to fully and fairly present his or her case. Whether that occurred is a central question to be asked in determining if the duty to provide procedural fairness has been met.
[46]In order to answer this, and determine whether procedural fairness has been breached in a particular case, the Supreme Court in Baker, supra, set out a non-exhaustive list of factors to be considered in determining the content of the duty of fairness:
(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
[47]When these factors are considered in the present case, I conclude that the duty of fairness was breached by the Committee. The applicant did not know the specific allegations made against him by Robert Sound, or the evidence submitted by Robert Sound to support such allegations. The notice of appeal letter provides only a brief glimpse of the allegations. In my opinion, this letter does not provide enough information about the alleged improprieties in election practices that would enable the applicant to know the exact nature of the evidence against him and the case to be met.
[48]First, the nature of the decision being made is regulatory and adversarial. The purpose of the appeal process and the Committee's decision is to discover improper conduct in elections and punish individuals accordingly, by stripping them of their elected official status. Another purpose is to protect the integrity of the election process established by the Swan River Nation. The C ommittee must decide, on the evidence presented, whether it could be fully and properly established that the applicant was guilty of corrupt election practices, pursuant to paragraph 12.1(c) of the Regulations.
[49]Second, the regulatory scheme governs all aspects of elections and the holding of elected office for the Swan River First Nation. The scheme is intended to reflect the customary election practices of the Swan River First Nation and was first adopted in 1993 after a community consultation process. The process to be followed in an appeal, as required by the Regulations, is through a hearing convened by the Committee. At the hearing, the appellant, the candidate whose election is being appealed and other interested parties are permitted to present oral or written submission to the Committee. A degree of openness and fairness is already inherent in this process by the provision of a hearing before the Committee.
[50]Third, the decision under review is one which can be expected to have a significant impact on the applicant's employment and financial stability. The cross-examination of Leon Chalifoux reveals that band councillors receive a monthly salary and expenses for travel. Perhaps more importantly, the impact of this dec ision is significant on the applicant's reputation in the community. Furthermore, the respondent, Robert Sound, also has an important stake in the Committee's decision as he apparently believes the allegations of corrupt election practice set out in his no tice of appeal and desires to participate in a by-election for the position held by the applicant for the Sound family group.
[51]Fourth, it is not apparent that the applicant had a legitimate expectation that any particular procedure, beyond that expressly stated in the Regulations, was to be followed by the Committee. The applicant, as an elected Band councillor at the time, had sat on the Committee hearing of an appeal of a Mr. Dwain Davis. Mr. Davis had appealed against the "whole election". The fact that the applicant did not complain of the procedure followed in the Davis appeal is not a ground, in my opinion, to find that he should be precluded from now claiming that the principles of natural justice were denied during th e hearing of Robert Sound's appeal against the applicant's own election.
[52]Fifth, the procedure chosen by the Committee itself in this case was that both the appellant and the candidate whose election was being appealed, as well as other interested parties, such as elders and members of Robert Sound's family, had a chance to present their submissions to the Committee, orally, without having an opportunity to hear the other side. Neither side was provided with written representations of the other side prior to the hearing. The applicant had been provided only with the brief notice of appeal filed by Robert Sound.
[53]Considering all the above "Baker factors", the appeal process provided in the Regulations contemplates respect f or the participatory rights of the appellant and the candidate whose election is being appealed. The decision would have a significant impact on the applicant both economically, through a loss of salary and personally, on his integrity and reputation in the community.
[54]In my opinion, the Committee should have allowed the applicant an opportunity to hear, or receive in writing, the specific allegations made by the respondent, Robert Sound. Ideally, this should have been done prior to the hearing, allowing a reasonable amount of time for the applicant to prepare a response to the allegations. Further, the respondent Robert Sound, should then have been provided with a copy of the applicant's representations, prior to the hearing of the Committ ee. However, this also could have been afforded at the hearing itself, by permitting the applicant to hear the allegations and evidence tendered by Robert Sound and allowing Robert Sound the same in respect to the applicant's evidence. In failing to provid e a fair procedure, the Committee breached the duty of fairness which should have been afforded to the applicant and to the respondent, Robert Sound, as well.
[55]The more specific issue of an administrative agency permitting cross-examination of the evidence will not be addressed by this Court. The Swan River First Nation can decide whether cross-examination is required in order to afford the parties involved in the election appeal process a meaningful opportunity to participate in a full and fair manner.
[56]As for the issue of a biased decision-maker, the test for reasonable apprehension of bias is set out in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. Would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude that the respondent, Leon Chalifoux, either consciously or unconsciously would not decide the appeal of the applicant fairly? In my opinion, applying this test, a reasonable apprehension of bias does exist, based on the allegations against the applicant made in Leon Chalifoux's notice of appeal.
[57]Newfoundland Telephone, supra, is not analogous to the present case. The different "open mind" test for elected officials in making policy decisions is not applicable here. In Newfoundland Telephone, supra, the pay and benefits package of the utility company's executives was under investigation by a Board responsible for its regulation. The company objected to the participation of Mr. Wells, the Commissioner of the Board, in making the decision due to a reasonable apprehension of bias.
[58]The nature of the decision in the present case, involving allegations against an individual for engaging in corrupt election practices, is very different from the decision in Newfoundland Telephone, supra. The decision presently under review is more individually focussed and adversarial, than policy-related. Moreover, in the present case, one of the decision-makers on the Committee, Leon Chalifoux, had actually launched his own appeal claiming that the applicant had been improperly elected due to corrupt election practices. This is also distinguishable from Newfoundland Telephone, supra, where the allegation of bias against Mr. Wells involved statements he made to the media.
[59]The respondents argue that Leon Chalifoux's appeal letter, dated March 13, 2002, relates wholly to the amendments of the Regulations and was not re lated to the specific election of the Sound family group. However, in my opinion, a reading of Leon Chalifoux's notice of appeal shows that, although he was taking issue with the amendments made to the Regulations by Band Council Resolution signed January 28, 2002, he also believed that the applicant was guilty of corrupt election practices and his election as a Band councillor should be vacated. It is important to remember that the heading at the top of this letter states "Notice of appeal I am forewording [sic] appeal to the election of councillors". Further, this letter refers to paragraph 12.1(c) of the Regulations which only relates to appealing the results of an election, by-election or run-off election of a councillor. This letter states, in part:
12.1(c)--A candidate was guilty of promoting or aiding corrupt election practices, NAMELY, Charlie Chalifoux, Preston Sound, John Giroux-- These candidates knowingly submitted [t]he invalid petitions to amend the Custom Election Regulations.
[60]There is no need to address the arguments regarding the standard of review of breaches of procedural fairness, as the standard of review is not engaged when looking at the process followed by a decision-maker, but only when looking at the substance, or reasons for, a decision.
[61]The respondents argue that applicant has not requested the record from the Committee and is therefore not interested in having the record of the Committee produced before the Court. However, this flies in the face of the applicant's notice of application for judicial review where he requested that the Committee provide all material relevant to the application in its possession, including all minutes of any meetings relevant to the application, pursuant to rule 317 [as am. by SOR/2002-417, s. 19] of the Federal Court Rules, 1998, SOR/98-106.
[62]There is nothing on the Court file to indicate that the respondents have provided any minutes of the Committee's deliberations relative to the deci sion under review. The respondents' evidence, in the form of the affidavit from Leon Chalifoux, that the Committee believed that the Electoral Officer, Ray Dupres, was taking minutes of the hearing and that Mr. Dupres resigned on March 26, 2002, does not m ean that the applicant somehow should be faulted for the lack of a tribunal record before this Court.
[63]The applicant has also argued that the reasons of the Committee are inadequate, given the nature of the decision and its significance to him. He relies on Baker, supra, and says that reasons should have been provided. At paragraph 43 of Baker, supra, Justice L'Heureux-Dubé stated as follows:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
[64]In my opinion, the Committee should have provided reasons as to why it concluded that the applicant was guilty of promoting or aiding corrupt election practices, contrary to paragraph 12.1(c) of the Regulations. Here, the applicant simply received notice that the appeal brought by Robert Sound had been upheld. A few days later he received a letter which stated that the decision had been made based on the oral presentations to the Committee and that the Regulations do not require the Committee to disclose any of its reasons for decision. Since this decision made such an important finding for an individual, impugning the applicant's conduct and removing him from elected office, reasons for the decision should have been provided, despite the fact the regulations do not expressly say that reasons should be given.
[65]The disposition which may be rendered by the Committee is set out in section 12.9 of the Regulations. Paragraphs 12.9(a) and (b) of the Regulations establish the standard required in order for an appeal to be denied. Paragraph 12.9(a) states that an appeal is to be denied where "the evidence presented did not fully and properly establish the necessary grounds for an appeal" and paragraph 12.9(b) states that the results of an election will not be changed if, despite the grounds for an appeal being upheld, "the inf raction did not materially or directly affect the result of the Election". This wording indicates, in my opinion, that reasons are required to say why the evidence presented "fully and properly established" that the applicant was implicated in corrupt elec tion practices and how this conduct materially or directly affected the election result.
[66]In light of the preceding analysis, this application for judicial review will be allowed. The process followed by the Committee prevented the applicant from meaningful participation in a decision which would have a great impact not only on his employment, but on his reputation in the community.
[67]The decision of the Committee is quashed, with costs to the applicant. The appeal of the applicant's election as Band councillor is to be redetermined in accordance with these reasons. The applicant is to be made aware of the evidence and allegations made against him and afforded an opportunity to respond to them. Leon Chalifoux is not to cons titute part of the Committee. The request for publication of a notice that the applicant is duly elected and that he is not guilty of corrupt election practices is denied, as this is a matter to be determined by the Committee in the future, and not by this Court.
ORDER
This application for judicial review is allowed and the decision dated March 26, 2002 of the Election Appeal Committee of the Swan River First Nation, allowing the appeal of the respondent, Robert Sound, against the election of the applicant is quashed. The Committee is to redetermine the matter in accordance with these reasons. councillor Leon Chalifoux is not to form part of the Committee on this redetermination. The applicant is to have his costs.