[1993] 3 F.C. 142
T-1214-92
Ken Sparvier (Applicant)
v.
Cowessess Indian Band # 73, Richard Redman, Muriel Lavallée and Samuel Sparvier (Respondents)
Indexed as: Sparvier v. Cowessess Indian Band (T.D.)
Trial Division, Rothstein J.—Winnipeg, January 29; Ottawa, May 12, 1993.
Native peoples — Elections — Election appeal tribunal constituted under Cowessess Indian Reserve Elections Act overturning election of applicant as Chief, calling new election because some candidates not meeting Act’s residency requirement — Act requiring election of appeal tribunal members prior to nomination meeting — Even assuming not so elected, tribunal validly constituted as provision directory in context of Act — Candidates’ residency within tribunal’s jurisdiction — Only tribunal established by Act to deal with contraventions — Residency requirement must be enforceable to have meaning — Act providing election practice ground of appeal — “Election practices” including eligibility to be candidate.
Judicial review — Prerogative writs — Certiorari — Appeal tribunal established pursuant to Cowessess Indian Reserve Elections Act overturning election of Band Chief, calling new election because some candidates not meeting Act’s residency requirement — Principles of natural justice apply to tribunal’s proceedings — Breached rules of natural justice because of one member’s admitted bias, very short notice of proceedings, not permitting applicant to be present during submissions of others — Doctrine of necessity may apply if Court lacking jurisdiction to direct establishment of new appeal tribunal.
Federal Court jurisdiction — Trial Division — Within Court’s jurisdiction to review decision of election appeal tribunal created under Cowessess Indian Reserve Elections Act as federal board — Unclear whether Court having jurisdiction to direct establishment of new appeal tribunal.
This was an application to quash the decision of an election appeal tribunal nullifying the election of Band Chief and directing that a new election take place. On April 24, 1992 the applicant was elected Band Chief. One of the unsuccessful candidates appealed the results. An appeal tribunal established pursuant to the Cowessess Indian Reserve Elections Act decided to call a new election on the ground that two of the five candidates (not the applicant) failed to meet the residency requirement of the Act. In the second election another candidate was elected. The applicant submitted that the Appeal Tribunal was not properly constituted. Appeal Tribunal members and alternates were proposed and agreed upon by Band Council on March 2, 1992. The nomination meeting was held April 3. They were confirmed on April 16. Cowessess Indian Reserve Elections Act, paragraph 6(4)(a) provides that the Tribunal will be elected before the nomination meeting. The applicant argued that the Appeal Tribunal was not constituted until April 16, or after the nomination meeting and therefore was not in conformity with paragraph 6(4)(a). The applicant also submitted that it was not within the Appeal Tribunal’s jurisdiction to rule on residency because residency did not fall within the grounds for appeal set out in subsection 6(2), i.e. was not an election practice or an illegal, corrupt or criminal practice. It was submitted that the Appeal Tribunal’s jurisdiction was intended to cover procedural matters in the course of an election only. Finally, the applicant submitted that the Appeal Tribunal committed a number of procedural errors. He alleged that a member of the Appeal Tribunal made negative remarks about him during the Appeal Tribunal’s proceedings, creating a reasonable apprehension of bias with respect to the proceedings and decision of the Tribunal. Another member of the Tribunal rented farmland to the applicant before the Appeal Tribunal, also leading to a reasonable apprehension of bias. The applicant also argued that he was only given one day’s notice before the hearing and that this was tantamount to no notice at all, that the hearing was not open and that the nature of the hearing was not clearly disclosed to the parties.
Held, there was a denial of procedural fairness, but the order requested should not issue pending submissions on the issue of remedy.
The Federal Court had jurisdiction over the subject-matter of this application. For the Court to have jurisdiction, it must be shown that the decision to be reviewed was made by a “federal board, commission or other tribunal” as defined in section 2 of the Federal Court Act. An Indian band council elected pursuant to customary Indian law is a federal board as is one elected pursuant to the Indian Act. Again, an appeal tribunal elected pursuant to customary Indian law is a federal board. The Appeal Tribunal derived its power from band custom, including the Cowessess Indian Reserve Elections Act.
The Appeal Tribunal was validly constituted. The provision requiring that it be elected before the nomination meeting is, in the context of the Act, directory, not mandatory and non-compliance did not result in the Appeal Tribunal not being properly constituted. Nor did non-compliance invalidate the election process or the actions or orders of the Appeal Tribunal. The main object of the Cowessess Indian Reserve Elections Act is to provide the mechanism to elect a chief and Band Council in accordance with Band custom. An Appeal Tribunal is elected before the nomination meeting so that it will be in place throughout the election process to deal with election practices or illegal, corrupt or criminal practices of candidates and so that its members will at an early stage avoid becoming involved in a partisan way in the election. Neither reason is of such overriding importance that non-compliance with the timing requirement of paragraph 6(4)(a) should result in the actions of an Appeal Tribunal elected after a nomination meeting being of no legal effect. Invalidating the actions of an Appeal Tribunal solely because it was elected after the nomination date could well work a serious inconvenience or injustice to the members of the Band who have no control over those entrusted with ensuring compliance with the Act.
The question of residency of candidates was within the Appeal Tribunal’s jurisdiction under subsection 6(2). The Appeal Tribunal is the only tribunal established by the Act to deal with contraventions of the Act. If the Appeal Tribunal cannot deal with the issue, then a non-resident, if nominated, could become a councillor or chief contrary to the Act. If the residency requirement is to be given meaning, it must be enforceable. The Appeal Tribunal process is the means which the Act has established for enforcing this requirement. The term “election practices” includes the question of eligibility to be a candidate for election. For a non-resident to stand for nomination would amount to a practice that was illegal as it would be contrary to the Act.
While the political movement of the Aboriginal People to take more control over their own lives should not be quickly interfered with by the courts, band members are individuals who are entitled to due process and procedural fairness on the part of tribunals the decisions of which affect them. To the extent that the Federal Court has jurisdiction, the principles of natural justice and procedural fairness apply. Whether the Appeal Tribunal is acting judicially, quasi-judicially or administratively, a fair hearing including an unbiased tribunal, notice and the opportunity to make representations was essential.
The Appeal Tribunal did not follow the basic rules of procedural fairness. Members of an Appeal Tribunal are not popularly elected, but are selected by the Band Council. Absent compelling reasons, more rigorous, rather than a less strict application of the reasonable apprehension of bias test is desirable, but on the facts, even a more lenient application of the test lead to the same result. The evidence was clear that one of the Appeal Tribunal members was actually biased with respect to the applicant. That that member did not vote did not resolve the matter. A reasonable apprehension of bias in one member is sufficient to disqualify the whole tribunal, even though that member merely sat at the hearing without taking an active role in either it or subsequent deliberations. In the case at bar, the biased member had taken an active role in the proceedings prior to resigning because of his bias. A reasonably informed bystander would perceive bias on the part of the Appeal Tribunal as a result of the biased member’s admitted position—to oust the applicant—and his participation in the Appeal Tribunal’s proceedings. This fatally affected the proceedings and the decision of the Appeal Tribunal.
The Band was not large. It would not be realistic to expect members of the Appeal Tribunal, if they are residents of the reservation to be completely without social, family or business contacts with a candidate in an election. If a rigorous test for reasonable apprehension of bias were applied, the membership of decision-making bodies such as the Appeal Tribunal, in bands of small populations could constantly be challenged on grounds of bias, frustrating the election process and endangering the process of autonomous elections of band governments. The issues raised herein call attention to these questions of policy.
The very short notice period raised several concerns: (a) relevant persons may not be available; (b) there was practically no time to investigate the facts relating to the subject-matter of the appeal; (c) it was unreasonable to expect the participants to adequately organize and prepare their representations. That the applicant had actual notice and attended the proceedings did not detract from the disadvantageous situation of having to proceed without an adequate opportunity to investigate the matter and prepare representations. The applicant’s participation represented neither genuine consent to the proceedings nor waiver of his right to adequate notice.
To deny the applicant, whose position as Chief Elect was at stake before the Tribunal, the right to be present during the submissions of others raised the question of whether he was able to know the case to be met, another basic requirement of procedural fairness.
If the Appeal Tribunal’s decision were quashed without anything further, the results of the April 24 election would be reinstated. The Court, for procedurally technical reasons, instead of Band members, would be determining who should be Chief. An appeal validly filed with the Appeal Tribunal, the question of residency of candidates, and the validity of the April 24 election would remain undetermined. Such unsatisfactory results might be avoided by referring the matter back to a differently constituted Appeal Tribunal. The Court, being unclear as to its jurisdiction to direct the establishment of a new Appeal Tribunal, no order would be issued until the question of remedy is addressed by counsel. If the Court lacks jurisdiction, this may be a case to which the doctrine of necessity would apply.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5).
Indian Act, R.S.C. 1970, c. I-6.
The Indian Act, S.C. 1951, c. 29.
CASES JUDICIALLY CONSIDERED
APPLIED:
Gabriel v. Canatonquin, [1978] 1 F.C. 124 (T.D.); affd [1980] 2 F.C. 792; [1981] 4 C.N.L.R. 61 (C.A.); Montreal Street Railway Company v. Normandin, [1917] A.C. 170 (P.C.); Apsassin v. Canada (Department of Indian Affairs and Northern Development), [1988] 3 F.C. 20; [1988] 1 C.N.L.R. 73; (1987), 14 F.T.R. 161 (T.D.); Simpson v. Attorney-General, [1955] N.Z.L.R. 271 (S.C.); affd [1955] N.Z.L.R. 276 (C.A.); Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165; (1992), 142 N.R. 241; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 15 C.R. (3d) 1 (Eng.); 15 C.R. (3d) 315 (Fr.); 30 N.R. 119; 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; Rex v. Sussex Justices. Ex parte McCarthy, [1924] 1 K.B. 256; 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; 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; Regina v. Ont. Labour Relations Bd., Ex p. Hall, [1963] 2 O.R. 239; (1963), 39 D.L.R. (2d) 113; 63 C.L.L.C. 15,478 (H.C.); Haight-Smith v. Kamloops School District No. 34 (1988), 51 D.L.R. (4th) 608; [1988] 6 W.W.R. 744; (1988), 28 B.C.L.R. (2d) 391; 30 Admin. L.R. 298 (C.A.); Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3 W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214.
CONSIDERED:
Szilard v. Szasz, [1955] S.C.R. 3; [1955] 1 D.L.R. 370.
REFERRED TO:
Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147 (F.C.T.D.); Beauvais v. R., [1982] 1 F.C. 171; [1982] 4 C.N.L.R. 43 (T.D.); Rider v. Ear (1979), 103 D.L.R. (3d) 168; [1979] 6 W.W.R. 226; [1979] 4 C.N.L.R. 119 (Alta. T.D.).
AUTHORS CITED
Mullan, David. Administrative Law, 2nd ed.
Wade, H. W. R. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.
APPLICATION to quash the decision of an election appeal tribunal pursuant to the Cowessess Indian Reserve Elections Act nullifying election of Band Chief and directing that a new election take place. The tribunal acted unfairly, but its decision was not to be quashed pending submissions on the issue of remedy.
COUNSEL:
Marusia A. Kobrynsky and C. Mervin Ozirny for applicant.
Orest Rosowsky for respondents.
SOLICITORS:
Ozirny, Fisher, Bell & Matthews, Melville, Saskatchewan, for applicant.
Rosowsky & Campbell, Kamsack, Saskatchewan, for respondents.
The following are the reasons for order drendered in English by
Rothstein J.: This is an application made pursuant to section 18 of the Federal Court Act, R.S.C., 1985, c. F-7 as amended, for an order quashing, and seeking ancillary relief from, the decision dated May 5, 1992 made by an election appeal tribunal pursuant to the Cowessess Indian Reserve Elections Act (the Act). The decision nullified the result of a band election held on April 24, 1992, for Chief of the Band and directed that a new election take place. In addition, the applicant also seeks an order declaring invalid and setting aside the result of the re-election for the office of Chief held pursuant to the said decision.
SUMMARY OF FACTS
The Cowessess Indian Reserve Elections Act, along with other non-codified customs and traditions, govern elections for Band Chief and Councillors of the Cowessess Band. Such elections are to be held every three years. On April 24, 1992, an election was held in which the applicant, Ken Sparvier, was the successful candidate. One of the unsuccessful candidates, Terry Lavallée, appealed the election to an appeal tribunal established pursuant to the Act on the grounds that two of the five candidates in the election (not Mr. Sparvier or himself) were non-residents and were therefore ineligible candidates. The Appeal Tribunal conducted a hearing on May 5, 1992, and decided to call a new election which was held on May 22, 1992. In the second election Terry Lavallée was the successful candidate. Following the decision of the Appeal Tribunal on May 5, 1992, the applicant commenced proceedings in the Court of Queen’s Bench of Saskatchewan challenging the Appeal Tribunal, its procedures and the decision it made. That Court held that it did not have jurisdiction to hear the application. The applicant subsequently filed this application in the Federal Court of Canada.
PRELIMINARY MOTIONS
At the outset of this hearing, counsel for the applicant moved to add Terry Lavallée as a respondent. Counsel said this was necessary due to her desire to seek a declaration that Mr. Lavallée is illegally acting as Chief of the Band and an injunction enjoining him from exercising any authority or performing any duties as Chief of the Band.
Counsel for the respondents acknowledged that if the order of the Court resulted in a quashing of the decision of the Appeal Tribunal, it was likely that everything following from such decision would have no legal effect, including the subsequent election in which Mr. Lavallée was elected Chief.
After hearing argument, I denied this preliminary motion. In my opinion if an order were to issue quashing the decision of the Appeal Tribunal, and Mr. Lavallée did not voluntarily relinquish the position of Chief, a subsequent application could be brought seeking the appropriate order to ensure that the order quashing the decision of the Appeal Tribunal would be effective. I indicated to counsel that I would consider remaining seized of the matter for that purpose.
A second preliminary motion was made by counsel for the respondents and related to the submission by counsel for the applicant that the Appeal Tribunal was not properly constituted. Specifically, counsel for the respondents argued that the issue of the constitution of the Appeal Tribunal required the calling of viva voce evidence. He submitted there were discrepancies in the affidavit evidence between the applicant and the respondents and that the only way to resolve such discrepancies would be by way of oral evidence. He therefore sought an order that the application be treated as an action and that evidence be heard on this and other issues.
Counsel for the applicant submitted that there was evidence as to how the Appeal Tribunal was constituted in 1989 which gave an indication of the customs and tradition relating to this matter. Therefore the affidavit evidence before the Court was sufficient.
I decided to reserve my decision on this matter and directed the parties to argue the matter on the basis of the written material. I indicated that, if necessary, the calling of viva voce evidence could be considered subsequently. In view of my decision in respect of the constitution of the Appeal Tribunal, it is not necessary that viva voce evidence on custom and tradition be called on that issue and the motion of the respondents is therefore denied.
JURISDICTION OF THE FEDERAL COURT
On May 19, 1992, Mr. Sparvier made an application to the Court of Queen’s Bench of Saskatchewan to quash the decision of the Appeal Tribunal. Mr. Justice McLean of that Court ruled that the Federal Court of Canada had exclusive jurisdiction to deal with the subject-matter of the application and declined jurisdiction on that basis.
The parties have agreed that this Court has jurisdiction to decide this matter. However, because jurisdiction cannot be conferred by consent, I will set forth my reasons as to why I have concluded that this Court has such jurisdiction.
By Order in Council P.C. 6016, dated November 12, 1951 [SOR/51-529], it was declared that the Cowessess Indian Band No. 73 would conduct its elections for Chief and Band Councillors in accordance with the provisions of the The Indian Act [S.C. 1951, c. 29]. In or about 1980, the Cowessess Band adopted the “Cowessess Indian Reserve Elections Act” which codified, at least to some extent, the Band’s customs as the basis for selecting a chief and councillors. This reversion to Band custom was approved by the federal government on the 10th day of November, 1980, when Order in Council P.C. 6016 was amended by deleting from the Schedule thereto, the Cowessess Band of Indians. The effect of this deletion was that members of the Cowessess Band would no longer select their Chief and Councillors pursuant to the Indian Act [R.S.C. 1970, c. I-6] but rather, according to the custom of their Band. As a result, the Cowessess Indian Reserve Elections Act enacted by the Cowessess Indian Band No. 73 now governs the election of chief and councillors.
This application was brought pursuant to section 18 [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act. In order for the Court to have jurisdiction, it must be shown that the decision being reviewed is one made by a “federal board, commission or other tribunal” as defined in section 2 [as am. idem, s. 1] of the Federal Court Act. Section 2 states:
2. …
“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.
It is well settled that for purposes of judicial review, an Indian band council and persons purporting to exercise authority over members of Indian bands who act pursuant to provisions of the Indian Act constitute a “federal, board, commission or other tribunal” as defined in section 2 of the Federal Court Act. See Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147 (F.C.T.D.); Beauvais v. R., [1982] 1 F.C. 171 (T.D.); Rider v. Ear (1979), 103 D.L.R. (3d) 168 (Alta. T.D.). Gabriel v. Canatonquin, [1978] 1 F.C. 124 (T.D.); affd [1980] 2 F.C. 792 (C.A.), decided that an Indian band council came within the jurisdiction of the Federal Court where the election of the band council was pursuant to band custom and not the Indian Act. Pratte J.A., in writing for the Court, stated at page 793:
We are all of the view that the judgment below [[1978] 1 F.C. 124] correctly held that the council of an Indian band is a “federal board” within the meaning of section 2 of the Federal Court Act ….
We see no merit in the appellants’ contention that the Trial Division does not have jurisdiction because the only issue raised by the action, namely the validity of the election of the defendants to the Council of the Band, is governed by customary Indian law and not by a federal statute.
If Gabriel v. Canatonquin is correct and a council of a band, elected pursuant to customary Indian law, is a federal board in the same manner as would be the case had it been elected pursuant to a federal statute such as the Indian Act, then an appeal tribunal, elected pursuant to customary Indian law would, by similar logic, be a federal board.
The Appeal Tribunal in this case derives its power from band custom including the Cowessess Indian Reserve Elections Act. Applying Gabriel v. Canatonquin, the Appeal Tribunal is a federal board. This Court thus has jurisdiction to decide this application.
I now turn to the substantive matters before me.
CHRONOLOGY OF EVENTS
March 2, 1992—
Special meeting of Band Council.
Electoral Officer and Deputy Electoral Officer appointed.
Nomination date of April 3, 1992 set.
Appeal Tribunal members and alternates proposed and agreed upon by Band Council. The members were to be Clifford Lerat, Bob Stevenson and Maryanne Lavallée. If any of these persons did not wish to participate, Muriel Lavallée and/or Sam Sparvier would be asked.
April 3, 1992—
Nomination date.
April 16, 1992—
Regular meeting of Band Council.
Appeal Tribunal members and alternate confirmed. Members were Sam Sparvier, Maryanne Lavallée and Muriel Lavallée. The alternate was Clifford Lerat.
April 24, 1992—
Election for Chief and Councillors held.
Results of the election:
| Ken Sparvier |
137 |
| Terry Lavallée |
121 |
| Reynold Delorme |
86 |
| Theresa Stevenson |
67 |
| Tony Sparvier |
17 |
| Total: |
408 |
April 30, 1992—
Notice of appeal to Appeal Tribunal filed by Terry Lavallée.
May 4, 1992—
Recount of ballots.
Notice by Appeal Tribunal that hearing would be held on appeal of Terry Lavallée on May 5, 1992.
May 5, 1992—
Hearing of Appeal Tribunal.
May 19, 1992—
Applicant applies to Court of Queen’s Bench for relief. Court of Queen’s Bench declines jurisdiction.
May 22, 1992—
Second election held. Results of this election:
| Terry Lavallée |
220 |
| Ken Sparvier |
106 |
| Theresa Stevenson |
21 |
| Total: |
347 |
ANALYSIS
1. Constitution of the Appeal Tribunal
The first substantive argument of the applicant was that the Appeal Tribunal was not properly constituted. Counsel for the applicant submitted that the Cowessess Indian Reserve Elections Act contains provisions which reflect certain customs and traditions of the Band respecting elections. In particular, I was referred to paragraph 6(4)(a) of the Act which states:
6. (4) A Tribunal will rule on whether to allow or disallow an appeal hearing.
(a) The Tribunal will be elected before the nomination meeting and will consist of persons from the Cowessess Reserve membership.
In this case, the nomination meeting was held on April 3, 1992, but the Appeal Tribunal referred to in paragraph 6(4)(a) was not, in the submission of counsel for the applicant, constituted until April 16, 1992. Counsel for the applicant argued that since the Appeal Tribunal was elected after the nomination meeting, it was not constituted in conformity with paragraph 6(4)(a) and had no legal status. Although counsel for the applicant acknowledged that the Act was not a “code” and should not be considered to be a comprehensive enactment governing all matters to do with the election of Chief and Councillors of the Band, she argued that it was specific with respect to the Appeal Tribunal and, in particular, that the Appeal Tribunal must be constituted before the nomination meeting.
Counsel for the applicant submitted that the reason for this timing requirement in the Act was to avoid members of the Band becoming involved, in a partisan way, at a nomination meeting and then being selected for what was supposed to be an impartial Appeal Tribunal to deal with election irregularities. Applicant’s counsel also acknowledged that the timing in paragraph 6(4)(a) of the Act may be necessary in order for the Appeal Tribunal to be in place to deal with any election irregularity that takes place through the entire election process including the nomination process.
Counsel for the respondents submitted that if the Appeal Tribunal had not been properly constituted, then the first election itself would have no legal effect since an integral part of the election process had not been properly established.
The members of the Appeal Tribunal had been proposed and agreed upon by the Band Council at its meeting on March 2, 1992. The membership and alternate member of the Tribunal were confirmed on April 16, 1992. While I think a good argument could be made that the members were “elected” on March 2, 1992, before the nomination meeting, I will, for the purposes of this decision, assume that they were not and that there was not formal compliance with paragraph 6(4)(a) of the Act.
Essentially, the question with which I must deal is whether the non-compliance with paragraph 6(4)(a) of the Cowessess Indian Reserve Election Act has the effect of invalidating the actions taken by the Appeal Tribunal. This raises the issue of whether paragraph 6(4)(a) is mandatory or merely directory.
The leading case in this area of the law is the decision of the House of Lords in Montreal Street Railway Company v. Normandin, [1917] A.C. 170 (P.C.). In that case, it was claimed that a jury verdict should be set aside due to the failure of the sheriff to update the voters list from which were taken prospective members of juries. At pages 174 and 175, Sir Arthur Channel for the House of Lords stated:
It is necessary to consider the principles which have been adopted in construing statutes of this character, and the authorities so far as there are any on the particular question arising here. The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. [Emphasis mine.]
In the case of Apsassin v. Canada (Department of Indian Affairs and Northern Development), [1988] 3 F.C. 20 (T.D.), Addy J., after adopting the passage from Montreal Street Railway quoted above, stated at page 71 of his decision:
Examination of the object of the statute reveals that a decision which would render the surrender null and void solely because of non-compliance with the formalities of subsection 51(3) would certainly not promote the main object of the legislation where all substantial requirements have been fulfilled; it might well cause serious inconveniences or injustice to persons having no control over those entrusted with the duty of furnishing evidence of compliance in proper form. In the subsection, unlike subsection (1), where it is provided that unless it is complied with no surrender shall be valid or binding, there is no provision for any consequences of non-observance. I therefore conclude that the provisions of subsection 51(3) are merely directory and not mandatory.
The Montreal Street Railway decision was also cited in Simpson v. Attorney-General, [1955] N.Z.L.R. 271 (S.C.); affd [1955] N.Z.L.R. 276 (C.A.). That case involved the question of whether the Parliament of New Zealand was properly constituted in light of the writs for election apparently not being made returnable within the time designated by the relevant legislation. At page 275, Barrowclough C.J. stated:
The main object of that Act I conceive to be to sustain, and not to destroy the House of Representatives; and I am satisfied that those provisions of s. 101 which relate to the times when the warrant and the writs shall be issued are directory and not mandatory; and that neglect to take, within the specified times, the several steps there directed cannot invalidate the election.
The main object of the Cowessess Indian Reserve Elections Act is to provide the mechanism to elect a Chief and Band Council in accordance with Band custom. The Appeal Tribunal is to be elected to deal with election practices or illegal, corrupt or criminal practices of candidates as more particularly set forth in subsection 6(2) of the Act:
6. (2) Grounds for an appeal are restricted to:
(a) Election practices which contravene this Act.
(b) Illegal, corrupt or criminal practice on the part of the candidate which might discredit the high integrity of the Indian Government of Cowessess Reserve.
In my view, an important reason for electing the Appeal Tribunal before the nomination meeting is that it will be in place throughout the election process to deal with the matters over which it has jurisdiction. Another reason for it being constituted before the nomination meeting may be that its members will, at an early stage, avoid becoming involved in a partisan way in the election. Neither reason, however, suggests that the timing of the election of the Appeal Tribunal is of such overriding importance that non-compliance with the timing requirement of paragraph 6(4)(a) should result in the actions of an appeal tribunal elected after a nomination meeting being of no legal effect.
In my opinion, if the Tribunal is not elected until some portion of the election process has taken place, it may still deal with appeals once it is constituted. If any member finds that he or she has become aligned with a candidate in such a manner as to raise a reasonable apprehension of bias, he or she should not accept election to the Appeal Tribunal.
Invalidating the actions of an appeal tribunal solely because it was elected after the nomination date could well work a serious inconvenience or injustice to the members of the Band who have no control over those entrusted with ensuring compliance with the Act. I am satisfied that the provision requiring that the Appeal Tribunal be elected before the nomination meeting is, in the context of the Act, directory and not mandatory, and that non-compliance does not result in the Appeal Tribunal not being properly constituted. Nor does non-compliance invalidate the election process or the actions or orders of the Appeal Tribunal.
2. Excess of Jurisdiction—Residency
In this case, the Appeal Tribunal found that the election of April 24, 1992, in which the applicant was elected Chief was invalid because two of the five candidates failed to meet the residency qualification of the Act. The Tribunal’s decision states:
(1) To the best of our ability and in reference to the stipulations as outlined in the Cowessess Band Election Act [sic] we find that the candidates for the position of Chief, namely Reynold Delorme and C. Tony Sparvier fail to meet the definition of the term “resident” as stated in the Cowessess Band Election Act [sic]. Therefore it is the decision of the Tribunal that these two individuals names be deleted from the ballot and that a re-election for the position of Chief be held with the remaining candidates names intact on the new ballot. The office of Chief will remain vacant until the results of such election become evident. This re-election to be scheduled and held at the earliest possible date to be set by the Electorial [sic] Officer.
The issue of residency is dealt with in subsection 2(7) of the Act. It states:
2. (7) All Candidates for Chief and Councillors must file nomination documentation to show non-conflict of interests. Candidates must be a resident of the Reserve for a period of one year before nomination.
Counsel for the applicant submitted that a ruling on residency did not fall within the jurisdiction of the Appeal Tribunal because this issue did not constitute an election practice or an illegal, corrupt or criminal practice referred to in subsection 6(2) of the Act. It was submitted that the jurisdiction of the Appeal Tribunal was narrowly circumscribed in subsection 6(2) and was intended to cover procedural matters in the course of an election only. Further, it was submitted that the issue of residency is unclear as resident or residency is not defined in the Act. Finally, it was said that it could not be reasonably argued that the candidates whose residency was being challenged, had participated in any illegal, corrupt or criminal practice.
Counsel for the respondents argued that the two candidates whose residency was questioned signed a consent to nomination, declaring that to the best of their knowledge and belief, they were legally qualified to be nominated, elected and to hold the office of Chief. He submitted that the process of being nominated and consenting to nomination was an election practice and that, in declaring that they were legally qualified to be nominated, these candidates misstated the facts with respect to their residency. Accordingly, it was within the jurisdiction of the Appeal Tribunal to deal with the matter.
My consideration of the Act has caused me to conclude that the Appeal Tribunal did not exceed its jurisdiction in respect of its decision regarding residency. The Appeal Tribunal is the only tribunal established by the Act to deal with contraventions of the Act. It is given the power to uphold the election or order a new election. Subsection 6(7) of the Act states:
6. (7) The decision of the group (6.6) will represent the final decision regarding the election. The hearing may:
(a) Uphold the election.
(b) Order a new election for the position(s) appealed only.
Counsel for the applicant urges an interpretation of the terms “election practices” or “illegal practices” in subsection 6(2) that would focus only on those matters related to election procedures. This would exclude the issue of residency which, in her submission, is a question of the eligibility of candidates to run for office and not election procedures.
I cannot agree with this distinction. Although I follow the interpretive approach she suggests, she has provided no rationale that would explain why the drafters of the Act intended to exclude the question of residency from the jurisdiction of the Appeal Tribunal. The Act has no other provision dealing with non-residency of candidates. If the Appeal Tribunal cannot deal with the issue, it would follow that a non-resident, if nominated, could become a councillor or chief contrary to the Act.
Counsel for the applicant argued that the time to raise such an issue would be at a nomination meeting. However, persons voting at a nomination meeting must still comply with the provisions of the Act. If the residency requirement is to be given meaning, the requirement must be one that can be enforced. It seems to me that the Appeal Tribunal process is the means which the Act has established for enforcing this requirement.
In my view, the term “election practices” includes the question of eligibility to be a candidate for election. Further, for a non-resident to stand for nomination would amount to a practice that was illegal in that it would be contrary to subsection 2(7) of the Cowessess Indian Reserve Elections Act. As such, I conclude that the question of residency of candidates is within the jurisdiction of the Appeal Tribunal under subsection 6(2) of the Act.
The Act does not define residency. However, this in itself does not preclude the Appeal Tribunal from dealing with the issue. The Courts are regularly faced with the necessity of interpreting words that are not defined in relevant legislation.
3. Procedural Errors
Counsel for the applicant submitted that the Appeal Tribunal committed a number of procedural errors. First, it was alleged that a member of the Appeal Tribunal, Clifford Lerat, made negative remarks about the applicant during the Appeal Tribunal’s proceedings. Although Mr. Lerat did not participate in the vote of the Appeal Tribunal, it was submitted that his presence and comments created an apprehension of bias with respect to the proceedings and decision of the Tribunal. In addition, counsel for the applicant argued that Muriel Lavallée, another member of the Tribunal, rented farmland to Terry Lavallée, the applicant before the Appeal Tribunal. It was submitted that this also led to a reasonable apprehension of bias. Finally, on the question of bias, it was argued that a residency issue with respect to the election of one of the councillors was raised before the Appeal Tribunal but that this was never dealt with by the Tribunal.
Applicant’s counsel also submitted that there was no evidence before the Tribunal upon which it could rule on the residency of candidates. She therefore said that the Tribunal must have ruled on the basis of information not before it.
Applicant’s counsel also argued that the applicant was given only one day’s notice before the hearing and that this was tantamount to no notice at all, that the hearing was not an open one, and that the nature of the hearing itself was not clearly disclosed to the parties. She therefore argued that even if the Tribunal had been properly constituted and had ruled within its jurisdiction, its procedures were so tainted that the decision could not stand in any event.
With respect to Mr. Lerat’s presence, respondents’ counsel argued that there was no evidence that he affected the decision of the Appeal Tribunal. As to Muriel Lavallée, respondents’ counsel argued that because of the small size of bands, and the fact that in many cases, a band consists of only a few families, no procedure could be held without some relationship creating an apprehension of bias and that if such rule were strictly applied, it would run counter the trend toward increased Indian self-government.
On the question of notice, respondents’ counsel submitted that there was no indication of any complaint by the applicant that he had not been given adequate notice and that the applicant did attend the meeting of the Appeal Tribunal and made submissions. Counsel for the respondents also said that the applicant knew that residency was the issue because the night before the meeting, he had questioned whether the Appeal Tribunal had jurisdiction to deal with the issue.
It was submitted by respondents’ counsel that the Appeal Tribunal’s proceedings were conducted in accordance with Band custom. Richard Redman, the Electoral Officer for the Band, stated at paragraph 24 of his affidavit:
24. THE procedure followed by the Tribunal at the hearing was in accordance with Band custom.
Respondents’ counsel takes the position that because the procedure of the Appeal Tribunal was in accordance with Band custom, the degree of natural justice or procedural fairness owed to the applicant is minimal. To hold otherwise, it was said, would render nugatory the procedures followed by all other bands in Canada who elect their officials according to their own custom, because the Court would simply be imposing its rules of procedure in place of customary band procedures.
No authority was cited by counsel for the respondents to the effect that the principles of natural justice or procedural fairness are not to be applied in situations where band custom dictates procedures to be followed by band tribunals.
While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural justice and procedural fairness are to be applied.
In deciding what “principles” should apply to the matter at bar, I have had regard to the Supreme Court of Canada decision in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, where at page 195 of the decision, Gonthier J., for the majority, states:
The content of the principles of natural justice is flexible and depends upon the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations, and an unbiased tribunal. [My emphasis.]
In the case at bar, there is an Appeal Tribunal that is empowered to make decisions affecting elections and the rights of candidates in those elections. Its powers entitle it to uphold an election or order a new election. It has a duty to consider appeals alleging election practices which contravene the Act or illegal, corrupt or criminal practices on the part of candidates.
In the material before me, counsel used the terms “natural justice” and “procedural fairness” interchangeably. Since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, it has not been necessary to classify the functions of tribunals as judicial, quasi-judicial or administrative to ascertain whether principles of natural justice are applicable. Nicholson introduced the concept of procedural fairness which applied to all tribunals whether judicial, quasi-judicial or administrative.
In Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, Dickson J. (as he then was) in a concurring but separate judgment from the majority, stated at page 629:
In general, courts ought not to seek to distinguish between the two concepts [natural justice or procedural fairness], for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.
At page 630 he stated:
It is wrong, in my view, to regard natural justice and fairness as distinct and separate standards and to seek to define the procedural content of each.
Accordingly, the terminology I will use in this decision is procedural fairness.
I am satisfied that the Appeal Tribunal, in this case, had an obligation to conduct its proceedings in accordance with rules of procedural fairness. In Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, Le Dain J. stated at page 661:
The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.
There is no question that the candidates in a band election are affected by a decision of an appeal tribunal. Whether the Appeal Tribunal is considered to be acting judicially, quasi-judicially or administratively, a fair hearing is essential.
Having come to this conclusion, I am of the opinion that the basic requirements set forth by Gonthier J. in Hofer, (supra), are applicable to the Appeal Tribunal of the Cowessess Indian Band No. 73. These are the requirements of an unbiased tribunal, notice and the opportunity to make representations.
a. Bias
The question of bias strikes at the heart of the validity of the Appeal Tribunal’s actions. The underlying doctrine with respect to bias is based on the oft-quoted maxim of Lord Chief Justice Hewart in Rex v. Sussex Justices. Ex parte McCarthy, [1924] 1 K.B. 256, at page 259:
… justice should not only be done, but should manifestly and undoubtedly be seen to be done.
The test for a reasonable apprehension of bias was stated by de Granpré J. in the Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at page 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.…”
The application of the test for reasonable apprehension of bias will depend on the nature of the tribunal in question. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, Cory J. states at pages 638-639:
It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgement of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.
In my view, the function of the Appeal Tribunal is adjudicative. Its duty is to decide appeals based on contraventions of the Cowessess Indian Reserve Elections Act or illegal, corrupt or criminal practices on the part of candidates. Even though Appeal Tribunal members may not be legally trained, it appears that they are to decide, based on facts and their application of the Act or other Band customs, traditions or perhaps other laws, whether or not to uphold an election or order a new election. Members are not popularly elected. Although the Act uses the term “elected”, members are selected by the Band Council.
This leads me to conclude that in the absence of compelling reasons, a more rigorous rather than a less strict application of the reasonable apprehension of bias test would be desirable in the case of the Appeal Tribunal. I will comment further on the question of compelling reasons to the contrary subsequently. I should add, however, that on the facts of this case, a less strict application of the test leads me to the same conclusion I would have reached had I applied the test in a more rigorous fashion.
In the case at bar, Clifford Lerat, during the proceedings of the Appeal Tribunal, made disparaging remarks towards the applicant. At paragraph 23 of his affidavit dated May 19, 1992, the applicant states:
23. THAT even before I started on my presentation, Clifford Lerat said to me, “Kenny, you’ve always been after me since day one.” I replied that I was only there to make my presentation.
Comments of a similar vein were apparently made to another Band member at his appearance before the Tribunal. At paragraph 4 of his affidavit dated May 19, 1992, Clifford Young deposes as follows:
4. THAT before I even started my presentation, Clifford Lerat stood up and said, “I want you to know that we’re doing this because Kenny (meaning Ken Sparvier) is too mean to the people and that is why we’ve got this guy to get him out.” Clifford Lerat pointed to the Electoral Officer, Richard Redman, as he made this comment. The other persons in the room heard what Clifford Lerat said but did not say anything.
Mr. Redman’s affidavit contains the following information:
19. THAT during the said hearing, Clifford Lerat made several derogatory statements with respect to the Chief elect, Ken Sparvier.
20. THAT I indicated that I could not disqualify Clifford Lerat as it was not my function to do so and that Clifford Lerat had a right to his own opinions and was entitled to participate in the election process by supporting any candidate that he chose to support.
21. THAT subsequent to Ken Sparvier’s presentation, Ken Sparvier left the room and a discussion took place amongst the Tribunal where Clifford Lerat voluntarily agreed to step down from the Tribunal as he felt that he was not able to render an unbiased decision due to his feelings against Ken Sparvier.
22. THAT accordingly the Tribunal continued to function with its remaining members, Muriel Lavallee and Samual Sparvier.
Mr. Lerat’s actions created more than a reasonable apprehension of bias. The evidence is clear that with respect to the applicant, he was actually biased. If this were a situation only of an apprehension of bias of a member of a policy-oriented board, the incident might not be fatal. However, in a case such as this, where there is no doubt as to the actual bias of a member of an adjudicative board such as the Appeal Tribunal, even on a lenient application of the test, that bias cannot be ignored. A lenient application of the test after all, does not mean no application of the test at all.
Mr. Lerat apparently did not participate in the vote of the Appeal Tribunal. That he did not vote, however, does not resolve the matter. In Regina v. Ont. Labour Relations Bd., Ex p. Hall, [1963] 2 O.R. 239 (H.C.), McRuer C.J.H.C. states at page 243:
It is likewise well settled that if one member of a Board is shown to be biased the decision of the Board may be quashed on certiorari: The Queen v. Meyer et al. (1875), 1 Q.B.D. 173, and Frome United Breweries Co. v. Keepers of the Peace and Justices for County Borough of Bath, [1926] A.C. 586 at p. 591. The general principles of law to be applied to the case before me can no better be stated than in the language of Viscount Cave in the Frome case. At p. 590 he said:
My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others. (The italics are mine.)
At p. 591 Viscount Cave went on:
From the above rule it necessarily follows that a member of such a body as I have described cannot be both a party and a judge in the same dispute, and that if he has made himself a party he cannot sit or act as a judge, and if he does so the decision of the whole body will be vitiated.
This “poisoning of the well” rule is summarized by Esson J.A. in Haight-Smith v. Kamloops School District No. 34 (1988), 51 D.L.R. (4th) 608 (B.C.C.A.), at page 614:
What does apply is the rule that, if a person disqualified by bias is present at a hearing and sits or retires with the tribunal, the decision may be set aside notwithstanding that that person took no part in the decision and did not actually influence it.
In Mullan, Administrative Law (2nd ed.), at page 3-131 the learned author states the usual implication succinctly:
A reasonable apprehension of bias in one member of a tribunal is sufficient to disqualify the whole tribunal, even though that member merely sat at the hearing without taking an active role in either it or subsequent deliberations. Mere presence is generally enough.
On the evidence before me, it is clear that Mr. Lerat sat with the Appeal Tribunal during the submissions made to it. While the evidence indicates that he stepped down from the Appeal Tribunal because of his admitted bias, it appears that up to this point, he took an active role in the proceedings. I am of the opinion that there can be no other conclusion but that a reasonably informed bystander would perceive bias on the part of the Appeal Tribunal as a result of Mr. Lerat’s admitted position to oust the applicant and his participation in the Appeal Tribunal’s proceedings. This fatally affected the proceedings and the decision of the Appeal Tribunal.
In view of this finding, it is unnecessary for me to decide the allegation by the applicant that the presence of Muriel Lavallée on the Appeal Tribunal also provided a basis for apprehension of bias. However, a few comments may nonetheless be in order. Muriel Lavallée rented farmland to the applicant before the Appeal Tribunal, Terry Lavallée, and there was thus a business relationship of landlord and tenant between them.
In Szilard v. Szasz, [1955] S.C.R. 3, Rand J. stated at pages 6-7:
These authorities illustrate the nature and degree of business and personal relationships which raise such a doubt of impartiality as enables a party to an arbitration to challenge the tribunal set up. It is the probability or the reasoned suspicion of biased appraisal and judgment, unintended though it may be, that defeats the adjudication as its threshold. Each party, acting reasonably, is entitled to a sustained confidence in the independence of mind of those who are to sit in judgment on him and his affairs.
The Cowessess Indian Band is not large. The total number of electors who voted in the April 24, 1992 vote was 408. In respect of the size of the community in question, the Cowessess Band is, in my opinion, analogous with the voluntary religious associations to which Gonthier J. referred in Hofer, supra, where at page 197 he stated:
However, given the close relationship amongst members of voluntary associations, it seems rather likely that members of the relevant tribunal will have had some previous contact with the issue in question, and given the structure of a voluntary association, it is almost inevitable that the decision makers will have at least an indirect interest in the question.
I indicated earlier that in view of the adjudicative function of the Appeal Tribunal, in the absence of compelling reasons to the contrary, a more rigorous application of the reasonable apprehension of bias test would be desirable. However, it does not appear to me to be realistic to expect members of the Appeal Tribunal, if they are residents of the reservation, to be completely without social, family or business contacts with a candidate in an election. At paragraph 15 of his affidavit dated June 16, 1992, Lionel Sparvier states:
15. THAT pursuant to Cowessess Band custom, the members of the tribunal are selected from members of the Cowessess Indian Band, and are invariably related to one or more candidates for council or Chief due to the large number of candidates who run for elected positions traditionally.
If a rigorous test for reasonable apprehension of bias were applied, the membership of decision-making bodies such as the Appeal Tribunal, in bands of small populations, would constantly be challenged on grounds of bias stemming from a connection that a member of the decision-making body had with one or another of the potential candidates. Such a rigorous application of principles relating to the apprehension of bias could potentially lead to situations where the election process would be frustrated under the weight of these assertions. Such procedural frustration could, as stated by counsel for the respondents, be a danger to the process of autonomous elections of band governments.
It may be that to avoid these difficulties, Appeal Tribunal members could be selected from outside the residents of the reservation, perhaps on a reciprocal basis with other bands. Such a process may create difficulties of its own or be unsustainable in the context of an autonomous Indian band. These are policy matters to which the issues in this case call attention.
However, the Court must work within the framework of the existing law. I have added these comments because of the difficulties I see with the application of a more desirable strict bias test in the case of an adjudicative board such the Appeal Tribunal, to the practicalities of inevitable social and business relationships in a small community such as the Cowessess Band.
As to the allegation that the Appeal Tribunal did not deal with the residency challenge to the election of one of the Band Councillors, I have not been provided with sufficient facts to indicate the basis upon which the Appeal Tribunal refused to deal with that issue. Without more information, I am unable to say that a reasonably informed bystander could perceive bias on the part of the Tribunal with respect to candidates for the election of Chief because of the Tribunal’s inaction with respect to an election for Band Councillor.
(b) Notice
Although it is not necessary to decide whether or not there was adequate notice in view of my decision respecting bias, a few comments may prove to be useful.
On May 4, 1992, the applicant, presumably along with other individuals, attended at the Old Day School on the Cowessess Reserve to witness a recount of the ballots in the April 24, 1992 election. At this point, the Appeal Tribunal consisted of Sam Sparvier, Muriel Lavallée and Maryanne Lavallée. Maryanne Lavallée then resigned due to a conflict of interest (she was the mother of Terry Lavallée, applicant before the Appeal Tribunal) and was replaced by Clifford Lerat. This newly constituted Tribunal met with Mr. Redman and concluded that there was sufficient evidence to warrant the holding of an appeal hearing. Immediately following this determination, Mr. Redman announced that the Appeal Tribunal would commence its hearing on the appeal at 9:00 am the next morning, May 5, 1992.
It is without question that the applicant had a direct interest in the proceedings of the Tribunal. His election as Chief was to be either confirmed or voided by the Tribunal. Counsel for the applicant submitted that notice in this case, approximately twelve hours, was inadequate.
The Cowessess Indian Reserve Elections Act is silent on the issue of notice, nor do the authorities set out, in terms of hours or days, guidelines as to what does or does not constitute adequate notice. What is adequate notice must be determined on the circumstances of each case. Clearly, a notice period of less than twelve hours is very short. Such a short notice period raises a number of concerns: (a) relevant persons may not be available; (b) there is practically no time to investigate the facts relating to the subject- matter of the appeal; (c) it is unreasonable to expect the participants to adequately organize and prepare their representations. No evidence was led to indicate any compelling reason for the Tribunal commencing its proceedings upon such short notice.
It is true that the applicant had actual notice and attended the Appeal Tribunal proceedings. However, his attendance does not detract from the disadvantageous conditions of having to proceed without an adequate opportunity to investigate the matter and prepare representations. I think it is reasonable for me to infer that the applicant’s participation did not represent genuine consent to the proceedings of the Appeal Tribunal and that he did not waive his right to adequate notice.
(c) Opportunity to make representations before the Tribunal
In view of my findings with respect to bias, it is not necessary for me to deal with the question of whether there was a reasonable opportunity for participants to make representations to the Appeal Tribunal or whether the Appeal Tribunal had evidence before it upon which it was able to make a decision with respect to the issue before it. I would observe, however, that the applicant’s position as Chief Elect was, to all intents and purposes, what was at stake in the Appeal Tribunal’s proceedings. For the applicant not to be present during the submissions of others, raises the question as to whether he was able to know the case he had to meet. I have grave doubt about the adequacy of a procedure which entitles those who wish to make presentations to do so but not to be able to listen to the presentations of others or answer adverse evidence or arguments.
In Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, Dickson J., as he then was, for the majority, stated at pages 1113-1114:
4. The tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity “for correcting or contradicting any relevant statement prejudicial to their views”. Board of Education v. Rice, at p. 182; Local Government Board v. Arlidge, supra, at pp. 133 and 141.
5. It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellante authority must not hold private interviews with witnesses (de Smith, Judicial Review of Administrative Action, (3rd. ed.) 179) or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya, at p. 337, “… know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them … Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
It does not appear to me that these basic rules of procedural fairness were followed by the Appeal Tribunal in this case.
With respect to the matter of whether the Appeal Tribunal had evidence before it upon which it could determine the question of residency of candidates, I do not have sufficient information before me to make a determination on this question. The Appeal Tribunal did not transcribe its proceedings. It would be desirable, where a decision of a tribunal has been challenged on the basis that it was made without evidence, for those seeking to uphold the decision to give an indication of what evidence, if any, there was before the tribunal.
4. Error in Establishing Election Procedure
A final argument of counsel for the applicant was that even if the applicant was unsuccessful on all other points, the Appeal Tribunal erred in establishing its own procedure for the election it ordered. Counsel for the applicant argued that under subsection 6(7) of the Act the jurisdiction of the Appeal Tribunal was only to order a new election and to leave the procedure to those provisions set forth in the Act.
In view of my findings with respect to bias, it is not necessary for me to decide this issue. I would add, however, that to avoid this type of controversy arising, any order made by an appeal tribunal with respect to a new election should conform to the provisions of the Act and other relevant customs and traditions.
SUMMARY OF CONCLUSIONS
1. The Appeal Tribunal was validly constituted.
2. The residency of candidates for the purpose of eligibility is a matter within the Appeal Tribunal’s jurisdiction to decide.
3. The Appeal Tribunal’s members’ ability to consider the issue of residency in an impartial manner was adversely affected by the presence and participation of Clifford Lerat in the proceedings of the Appeal Tribunal. His involvement gave rise to a reasonable apprehension of bias in the entire Appeal Tribunal. This amounts to a denial of procedural fairness to the applicant in the proceedings of the Appeal Tribunal.
DISPOSITION
Subsection 18.1(3) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act provides:
18.1. …
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Upon a finding of reasonable apprehension of bias amounting to a denial of procedural fairness in the proceedings of a tribunal, a court would normally quash the decision of the tribunal. Depending upon the circumstances, the court could refer the matter back for determination in accordance with such directions as it considers to be appropriate.
The effect of the Court quashing the decision of the Appeal Tribunal in this case, without anything further, would be to reinstate the results of the April 24, 1992 election. I do not find such a result to be satisfactory for a number of reasons. In essence, the Court, for procedurally technical reasons, instead of the Band members, would be determining who should be Chief of the Cowessess Indian Band No. 73. It would leave unresolved an appeal validly filed with the Appeal Tribunal. The question of residency of candidates and the validity of the April 24, 1992 election would be left undetermined. The applicant would be required to assume and carry on the duties of Chief under a cloud.
These unsatisfactory results might be avoided if, in addition to quashing the decision of the Appeal Tribunal, the Court referred the matter back to a differently constituted Appeal Tribunal for redetermination of the residency issue, following appropriate procedures in so far as bias, notice and the right to make representations are concerned. If the Appeal Tribunal concluded that all candidates in the April 24, 1992 election were properly resident of the reserve for a period of over one year before nomination, it would then uphold that election and the applicant, being the successful candidate, could be declared Chief. If the Appeal Tribunal found one or more of the candidates ineligible by reason of non-residency and concluded that it was necessary to order a new election for Chief, it could do so.
However, it is not clear to me that I have the jurisdiction to give directions requiring the establishment of a new appeal tribunal. A new appeal tribunal would have to be elected by the Band Council. The question arises as to whether or not I could order the Band Council to elect a new appeal tribunal. Band custom or tradition may also have a bearing. There may also be procedural difficulties which may have to be addressed.
If the Court’s jurisdiction does not extend to directing the establishment of a new appeal tribunal, the question of the application of the doctrine of necessity, arises. The doctrine of necessity arises in cases in which, when no one else is empowered to act, otherwise disqualified tribunal members (other than Clifford Lerat, whose bias was real and proven) may be qualified to hear and determine an appeal. The principle is stated in Administrative Law by Sir William Wade, 6th ed., 1988 at pages 478-479:
In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down.
The doctrine of necessity was not argued when this matter was originally heard by me. Whether or not it is applicable in this case may be a matter for consideration.
For the foregoing reasons, I am of the opinion that counsel should have the opportunity to more fully address the question of remedy in this case, including if possible, agreement as to how the matter may be resolved, before an order is issued by the Court. The Registrar of the Court will therefore communicate with counsel shortly after these reasons are issued to arrange for a conference call with me so that I may ascertain how counsel wish to proceed—that is whether by way of oral hearing, by written argument, or in some other manner, with respect to the issue of remedy.
So there will be no doubt and to avoid confusion or inconvenience to the Band, I expressly state that at this time, the administration of the Band is not affected by the issuance of these reasons. An order shall not be issued until counsel have the opportunity to make further submissions on the issue of remedy.