[1993] 3 F.C. 175
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.—Ottawa, August 16, 1993.
Native peoples — Elections — Indian Band’s election Appeal Tribunal found to have breached procedural fairness rules — Appropriate remedy — Directions to be given as to redetermination — Order quashing appeal tribunal decision would invalidate election, unnecessarily disrupting Band administration — Execution of quashing order stayed till new tribunal upholds election, or, if new election called, to day after new election.
CASES JUDICIALLY CONSIDERED
APPLIED:
Regina v. Paddington Valuation Officer, Ex Parte Peachey Property Corpn. Ltd., [1966] 1 Q.B. 380 (C.A.).
REASONS FOR ORDER SUPPLEMENTARY to reasons reported at [1993] 3 F.C. 142 (T.D) providing directions as to conduct of redetermination of appeal to Cowessess Indian Band No. 73 election Appeal Tribunal, and quashing the Tribunal’s earlier decision for lack of procedural fairness, but staying execution of quashing order.
COUNSEL:
Marusia A. Kobrynsky and 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 supplementary reasons for order rendered in English by
Rothstein J.: On May 12, 1993, reasons were issued in this matter [[1993] 3 F.C. 142]. In those reasons, I found that the Cowessess Indian Band No. 73 election Appeal Tribunal’s proceedings held on May 5, 1992, had not been conducted according to required standards of procedural fairness. No order was issued on May 12, 1993, but counsel were invited to make submissions as to the appropriate remedy that should be ordered.
In addressing the subject of remedy, counsel restricted themselves, according to their clients’ instructions, to the question of whether or not the Appeal Tribunal’s decision of May 5, 1992, should be quashed. While counsel are, of course, bound to carry out their clients’ instructions, my reasons dated May 12, 1993, set forth why, in my opinion, the judicial exercise of discretion requires that the May 5, 1992 decision of the Appeal Tribunal be quashed. The only issue now is the directions that should be given as to the redetermination that should be made.
The appeal of Terry Lavallée to the Appeal Tribunal shall be redetermined in the following manner:
1. The council of the Cowessess Indian Band No. 73 shall, within fourteen days after the date of this order, elect a new Appeal Tribunal and select an electoral officer following, as far as possible, the procedures set forth in the Cowessess Indian Reserve Elections Act and Band custom.
2. The present Chief, Terry Lavallée, should not vote or participate in, or otherwise be present, for discussions respecting the election of members of the new Appeal Tribunal or the selection of electoral officer.
3. The person selected as electoral officer and the members elected to the new Appeal Tribunal shall be different from those who occupied those positions at the time of the May 5, 1992 decision of the previous Appeal Tribunal.
4. The members of the new Appeal Tribunal shall hear the appeal of Terry Lavallée within two weeks of their election and shall give all interested parties at least five days written notice of the date, time and place of hearing.
5. The new Appeal Tribunal shall render its decision within fourteen days of the hearing of Mr. Lavallée’s appeal.
6. The new Appeal Tribunal shall hear and determine the appeal following the provisions, as far as possible, of the Cowessess Indian Reserve Elections Act and Band custom and following appropriate procedures in so far as bias, notice and the right to make representations is concerned.
7. The new Appeal Tribunal shall, on the basis of evidence and submissions made to it, decide whether to uphold the election of April 24, 1992, the election of May 22, 1992, or order a new election.
In my reasons dated May 12, 1993, I indicated that no order quashing the May 5, 1992 decision of the Appeal Tribunal would issue at that time. The quashing of that decision would have the consequence of invalidating the May 22, 1992 election and restoring the results of the April 24, 1992 election even though the validity of the April 24, 1992 election has still to be properly determined. Mr. Lavallée would have to step down and Mr. Sparvier would assume the position of Chief, possibly only until the determination of the new Appeal Tribunal as to the validity of the April 24, 1992 election. In my view this would be unnecessarily disruptive of the administration of the Band.
In Regina v. Paddington Valuation Officer, Ex Parte Peachey Property Corpn. Ltd., [1966] 1 Q.B. 380 (C.A.), an order of certiorari was delayed to avoid the inconvenience resulting from a ruling that a rating list was invalid. The existing rating list was to be left in place until a new list had been prepared.
While the implication of an order for directions in this case is that the May 5, 1992 decision of the Appeal Tribunal is invalid, I am of the view, following Paddington, supra, that the judicial exercise of discretion contemplates the Court deciding upon the timing of the effect of its quashing order to ensure, as far as possible, that the effect of its order does not cause unnecessary disruption to the administration of the Band. Delaying the effect of the quashing order in this case would assist in the accomplishment of this objective.
The decision of the Appeal Tribunal dated May 5, 1992, is quashed. However, the execution of this quashing order shall be stayed until the date the new Appeal Tribunal determines whether to uphold the April 24, 1992 election, the May 22, 1992 election, or if it decides to call a new election, to the day following the new election.