Date: 19990903
Docket: T-1520-98
Ottawa, Ontario, the 3rd day of September 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
TERRENCE LAVALLEE
Applicant
- and -
URBIN LOUISON, JACK STEVENSON, JENNIFER CYR,
GARY L. PELLETIER and TERRENCE R. PELLETIER
Respondents
ORDER
The application for judicial review is dismissed with costs.
Karen R. Sharlow
Judge
Date: 19990903
Docket: T-1520-98
BETWEEN:
TERRENCE LAVALLEE
Applicant
- and -
URBIN LOUISON, JACK STEVENSON, JENNIFER CYR,
GARY L. PELLETIER and TERRENCE R. PELLETIER
Respondents
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Terrence Lavallee was one of five candidates for the office of Chief of the Cowessess Band in the April 25, 1998 election. He lost by one vote to the respondent Terrence Pelletier. Four appeals against that election resulted in two decisions adverse to Mr. Lavallee that were made by the other four respondents. He seeks judicial review of those decisions and asks that they be set aside.
Election law
[2] The Chief and Councillors of the Cowessess Band are not elected under the procedure in the Indian Act. Cowessess Band elections are governed by the Cowessess Indian Reserve Election Act and non-codified customs and traditions.
[3] The Election Act was enacted in 1980 and has never been amended. The provisions of the Election Act that are relevant to this application are reproduced below:
| (2) ELIGIBILITY |
| [ . . . ] |
| 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. |
| [ . . . ] |
| (5) ELECTION PROCEDURE |
| 1. In advance of the officials notice of any election, the Chief and Council of the Cowessess Reserve will appoint by Resolution an Electoral Officer and one (1) Deputy Electoral Officer. |
| 2. Duties of the Electoral Officer will include: |
| (a) The posting of all notices and the distribution of all election information pursuant to this Act. |
| (b) To preside as Chairperson at the nomination meeting. |
| (c) To arrange for the facilities, to conduct the nomination meeting and the election. |
| [ . . . ] |
| 3. Not less than fifteen (15) days prior to the due date of an election a voters list shall be posted at all Indian Government Offices of Cowessess Reserve. [. . . ] |
| (6) APPEALS |
| 1. Any candidate may appeal the results of the election within thirty (30) days from the day of the election. |
| 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. |
| 3. An appeal must be in writing to the Electoral Officer and contain details of the grounds upon which the appeal is made. |
| 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. |
| 5. If it is judged there is sufficient evidence to warrant, the Tribunal may order a hearing. |
| 6. An appeal hearing will take the form of a formal meeting consisting of: |
| a) The Electoral Officer. |
| b) The Tribunal. |
| 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. |
| [ . . . ] |
| (8) AMENDMENTS |
| 1. Amendments can be made to this Elections Act from time to time by Resolution of the Chief and Council of Cowessess Reserve. Such Resolution to be presented to three (3) Band meetings. |
| a) Such Resolution to be read, and discussed on two consecutive meetings. |
| b) Such Resolution to be questioned, and voted on at the third and final reading. |
[4] Section 6 of the Election Act deals with appeals to Band elections. It contemplates two different decision-making bodies. One is the Tribunal. It consists of three individuals whose principal task is to decide whether a notice of appeal warrants a hearing.
[5] An appeal that warrants a hearing is referred to a second group of four persons consisting of the Tribunal and the Chief Electoral Officer. The Election Act does not give this second group a name, but counsel have referred to it as the "Appeal Tribunal" and I will do the same.
Background Facts
[6] The Chief and Councillors of the Cowessess Band hold office for a term of three years. An election was due in the spring of 1998. At a Band Council meeting on March 3, 1998, the respondent Urbin Louison was appointed Chief Electoral Officer and Kim Delorme was appointed Deputy Electoral Officer for the upcoming election.
[7] Mr. Louison and Ms. Delorme had served in those positions for the 1995 Cowessess Band elections. Mr. Louison is a member of Kahkewistahaw First Nation. Ms. Delorme is a member of the Cowessess Band.
[8] In February, 1998, the respondents Jack Stevenson, Jennifer Cyr and Gary Pelletier received letters from then Chief Lionel Sparvier notifying them that their names had been suggested to sit on the Tribunal. The letter asked if they were willing to be appointed to the Tribunal. Others apparently received similar letters. Mr. Stevenson, Ms. Cyr and Mr. Pelletier indicated that they were willing to serve. At a Band Council meeting on March 16, 1998, those three were formally appointed as the Tribunal.
[9] The nomination meeting was held on April 3, 1998. The meeting was chaired by Mr. Louison as Chief Electoral Officer. The election was scheduled for April 25, 1998.
[10] Mr. Louison indicated at the nomination meeting that any Band member who wished to oppose the eligibility of any candidate could do so at that meeting.
[11] Mr. Lavallee alleges at the nomination meeting that Mr. Louison also said that objections relating to the residency of any candidate should be raised at the nomination meeting and could not be raised later. Mr. Louison denies saying anything to that effect. I do not need to decide whether he said that or not. Nothing Mr. Louison said at the nomination meeting could have precluded an appeal on the question of the eligibility of a candidate.1
[12] In any event, no issues were raised at the nomination meeting with respect to the eligibility of any candidate. Mr. Lavallee, Terrence Pelletier, Malcolm Delorme, Claudia Agecoutay and Henry Delorme were nominated as candidates for Chief. At the election on April 25, 1998, Terrence Pelletier beat Mr. Lavallee by one vote.
[13] After the election, four appeals were filed by the candidates for Chief, three by Mr. Lavallee and one by Mr. Delorme. It appears that there was also an attempt made by a number of band members to file an appeal containing substantially the same allegations that appeared in Mr. Lavallee's appeal. However, that was not treated as an appeal because the Election Act permits only candidates to appeal.
[14] The Tribunal met on May 26, 1998. Mr. Louison and Ms. Delorme also attended. The Tribunal made two important decisions at that meeting.
[15] One decision was that Mr. Lavallee's three appeals did not warrant a hearing. The Tribunal notified him of their decision by letter dated June 29, 1998. That letter states the reasons for their decision. The decision embodied in that letter is one of the decisions challenged by Mr. Lavallee in this application.
[16] The Tribunal also decided on May 26, 1998 that one of the issues raised in Mr. Delorme's appeal warranted a hearing. The Tribunal ordered the hearing on that issue to be held on June 10, 1998. Mr. Delorme had alleged in his notice of appeal that Mr. Lavallee was not a resident of the Cowessess Reserve for the year preceding the nomination meeting on April 3, 1998. The issue to be considered at the Delorme appeal hearing was whether Mr. Lavallee was eligible to stand for election for the office of Chief.
[17] The Appeal Tribunal convened on June 10, 1998 to hear the Delorme appeal. The proceedings were adjourned at Mr. Lavallee's request to June 12, 1998. Mr. Lavallee attended the hearing on June 12, 1998 and gave evidence, as did Mr. Delorme. The Appeal Tribunal concluded that Mr. Lavallee did not meet the residency requirement in section 2(7) of the Election Act, and ordered a new election for Chief to be held on July 3, 1998 among the other four candidates. That is the second decision challenged by Mr. Lavallee in this application.
[18] At the July 3, 1998 election, the respondent Terrence Pelletier was again elected as Chief. There were no appeals with respect to that election.
This application
[19] Mr. Lavallee seeks to quash the decision of the Appeal Tribunal made on June 12, 1998 and the decision of the Tribunal made on May 26, 1998 denying him a hearing on his appeals. Counsel for the respondents indicated at the hearing that Mr. Lavallee should have commenced a separate application for each decision to be reviewed. Technically that is correct. However, the respondents filed material dealing with the merits of both decisions without objecting to the form of the application. I indicated that I would treat the application as though it had been commenced correctly. If more than one application had been made, they would have been heard together in any event because they deal in large part with the same facts.
[20] A number of arguments are raised in Mr. Lavallee's application but at the hearing some of them were abandoned. I will discuss only the remaining issues.
Bias
[21] As Mr. Lavallee's allegations of bias relate to both of the decisions under review, I will deal with them together.
[22] Mr. Lavallee's application record contains evidence of his past dealings and relationships with each of the three Tribunal members. This evidence is the basis of an argument that there was a reasonable apprehension of bias. It is not completely clear whether this evidence is also intended to raise a question of actual bias, but I have assumed that it is. I will deal with the question of actual bias first.
(a) Actual bias
[23] The Band manager Lucy Pelletier is a sister of the respondent Jennifer Cyr and a first cousin of the respondents Gary Pelletier and Terrence Pelletier, the successful candidate for Chief. Mr. Lavallee says in his affidavit that while he was Chief in 1995, he was instrumental in relieving Lucy Pelletier from her position as Band manager prior to the 1995 election. Ms. Cyr's affidavit says that in 1995, Lucy Pelletier was simply laid off from her position prior to the 1995 election because she was planning to stand for election as Chief. The affidavit of Lionel Sparvier, who was Chief from 1989 to 1992 and again from 1995 to 1998, and a Councillor from 1992 to 1995, confirms Ms. Cyr's explanation.
[24] Mr. Lavallee says in his affidavit that the respondents Jennifer Cyr and Gary Pelletier are employees of the Band. According to the affidavits of Ms. Cyr and former Chief Sparvier, Ms. Cyr is not an employee of the Band, but of the Board of Trustees of the Treaty Land Entitlement Board. Gary Pelletier says in his affidavit that he is an employee of the Band, a Post Secondary Counsellor, but he reports to the Band Administrator and to the Post Secondary Program Board of Directors and is not under the direct supervision of the Chief and Councillors. The affidavit of former Chief Sparvier confirms Gary Pelletier's description of his position with the Band, and also says that in practice the Chief and Council took a hands off approach to Gary Pelletier's position.
[25] There is no evidence of any history of animosity or hostility between Ms. Cyr and Mr. Lavallee or between Gary Pelletier and Mr. Lavallee.
[26] The evidence summarized above does not support a claim of actual bias on the part of Ms. Cyr or Gary Pelletier.
[27] The facts relating to the dealings between Mr. Lavallee and the respondent Jack Stevenson are set out in an affidavit of Carole Lavallee, Mr. Lavallee's sister. She tells of an exchange between Mr. Stevenson and herself that she recalls having occurred in July of 1997. It appeared to her at the time that Mr. Stevenson was very angry with Mr. Lavallee over a land dispute. She says Mr. Stevenson was rude and yelled at her.
[28] Mr. Stevenson's affidavit explains the nature of the dispute he had with Mr. Lavallee and acknowledges that there was an exchange between himself and Ms. Lavallee, though he says it occurred in August of 1997. He says that he was merely trying to convince Ms. Lavallee to have Mr. Lavallee talk to him. Mr. Stevenson denies that he was rude or loud. He says that in any event, the dispute was resolved shortly afterward without incident, and he did not pursue the matter further with Mr. Lavallee. He denies bearing any grudge against Mr. Lavallee with respect to the dispute.
[29] There was no cross-examination on the affidavits of Mr. Stevenson or Carole Lavallee. The affidavit of Mr. Lavallee does not refer to this incident or the underlying dispute. Thus the evidence as to whether Mr. Stevenson was angry with Mr. Lavallee in the summer of 1997 is disputed, but even if Mr. Stevenson was angry at that time, there is no evidence to suggest that his anger survived until the spring of 1998 when the election occurred. Nor is there is any evidence that Mr. Stevenson took any action or said anything against Mr. Lavallee at or around the time of the election or in the months following the election. The evidence does not support a claim of actual bias against Mr. Stevenson.
(b) Reasonable apprehension of bias
[30] Even though I have found no evidence of actual bias, I must consider whether there is evidence that supports a claim of a reasonable apprehension of bias. Such a claim may be made out even if there is no proof of actual bias. The same issue was raised on different facts in Sparvier v. Cowessess Indian Band #73, [1994] 1 C.N.L.R. 182 (F.C.T.D.). In that case Rothstein J. summarized the relevant principles. He says at page 195-6:
| The test for a reasonable apprehension of bias was stated by de Grandpré 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. |
[31] He went on to conclude in that case that there was sufficient evidence of actual bias with respect to one member of the Appeal Tribunal to set aside its decision. He then said, at page 198-199:
| 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. |
| 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,2 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 as the Appeal Tribunal, to the practicalities of inevitable social and business relationships in a small community such as the Cowessess Band. |
[32] I agree with Rothstein J. that the role of the Tribunal and the Appeal Tribunal is primarily adjudicative, which suggests that the test for reasonable apprehension of bias should be assessed at the stricter end of the scale. However, such an ideal must yield to the practicalities, as well as the legal regime under consideration.
[33] In this regard it must be noted that the Election Act was enacted to deal with the electoral process of a Band that was small when the Sparvier case was decided, and remains small. The total Band membership was 2,838 of whom 1,593 were eligible to vote in the April 25, 1998 election. The material indicates that of the 137 people (excluding the Tribunal members, the Chief Electoral Officer and the Deputy Electoral Officer) who attended the nomination meeting, 5 stood for election as Chief and 37 stood for election as Councillor (there are 12 positions on Council). Only 493 people voted in the April 25, 1998 election. Yet the Election Act contemplates a three person Tribunal and requires that they be appointed from the Band membership. The pool of individuals who are likely to accept the responsibility of Tribunal members would normally consist of those who participate in elections, at least by voting.
[34] It is probable, given these numbers, that the Tribunal members are likely to be people who have family, social, work or business relationships with potential candidates. This is confirmed by former Chief Sparvier, who says this in his affidavit:
| By custom the individuals who sit on the Appeal Tribunal are selected from members of the Cowessess First Nation, and invariably the members of the Appeal Tribunal have some social, family or business relationship with one or more of the many candidates who are typically nominated for Chief or for a position on Council. |
[35] To put too much weight on such relationships in assessing the existence of a reasonable apprehension of bias with respect to the Tribunal or the Appeal Tribunal could frustrate the objects of the Election Act, ultimately paralyzing the electoral appeal process altogether.
[36] With these considerations in mind, I have considered the facts summarized above in the context of the legal test for a reasonable apprehension of bias.
[37] The family ties of Jennifer Cyr and Gary Pelletier to the Band manager and Terrence Pelletier, and the fact that Gary Pelletier works for the Band in circumstances where he is not under the direct supervision of the Chief and Council, are the kinds of normal relationships that may normally be expected for Tribunal members. Such relationships do not create a reasonable apprehension of bias on the part of Ms. Cyr or Mr. Pelletier with respect to the election appeals under consideration.
[38] As to Mr. Stevenson, even if I were to accept that there was some evidence of personal hostility to Mr. Lavallee some months before the election, those events are too remote in subject matter and in time to support an allegation of a reasonable apprehension of bias on the part of Mr. Stevenson with respect to the April 25, 1998 election.
[39] It follows that the decisions of the Tribunal and the Appeal Tribunal cannot be set aside for actual bias or for a reasonable apprehension of bias.
The Resolution of the Chief and Council dated June 4, 1998
[40] Mr. Lavallee contends that the Chief and Council passed a resolution on June 4, 1998 with the intent of compelling the Appeal Tribunal to follow certain procedures with respect to the appeals filed against the April 25, 1998 election. Those procedures were not followed.
[41] One of the preambles to the June 4, 1998 resolution refers specifically to the appeals filed against the April 25, 1998 election and states that the Chief and Council "have reason to believe that the Appeal Tribunal will not follow these rules of procedural fairness or natural justice3 that have been incorporated into the Cowessess Election Law." There is no evidence as to the factual basis for that statement.
[42] The procedures adopted by this resolution would require, among other things, that the Chief and Council and all candidates be given the right to participate in any appeal heard by the Appeal Tribunal. That would include the right to attend the hearing, give evidence, cross examine witnesses and submit argument. Each of those parties would be entitled to 14 days' notice of any meeting or hearing by the Appeal Tribunal to consider an appeal.
[43] There is no evidence as to how this resolution came to be passed. There is no evidence as to when or if any of the members of the Tribunal or the Appeal Tribunal had notice of this resolution. The affidavits of the Tribunal members do not respond to any allegations made by Mr. Lavallee with respect to this resolution. If the resolution was passed on the date it appears to have been signed, the Tribunal members could not have been aware of it on May 26, 1998, but might have been aware of it on June 10, 1998.
[44] Counsel for Mr. Lavallee argued that he cannot be expected to adduce evidence as to the background facts of this resolution, or whether the members of the Appeal Tribunal knew of it. It was a resolution signed by Chief Terrence Pelletier, who defeated Mr. Lavallee in the April 25, 1998 election, and by 11 of the 12 members of the Council. I am asked to assume that for political reasons, those Band councillors would have no interest in assisting Mr. Lavallee in his application.
[45] Given that Mr. Lavallee referred to this resolution in his affidavit and none of the respondents commented on it in their affidavits, I infer that they knew of its existence on June 10, 1998, the date initially fixed for the Delorme appeal hearing, and on June 12, 1998, when the hearing occurred. The question, then, is whether the June 4, 1998 resolution was binding on the Appeal Tribunal and if so, what effect it has.
[46] Counsel for Mr. Lavallee argued that the resolution, once adopted, became part of the custom of the Cowessess Band with respect to elections and this was binding on the Appeal Tribunal. I do not agree. In the context of elections, a custom is a practice or tradition that has been followed so consistently in the past that common consent may be inferred. A band council resolution passed on June 4, 1998 cannot possibly be a custom with respect to an election held on April 25, 1998. The June 4, 1998 resolution cannot be given any effect as a Band custom. To have any effect at all, the resolution must be shown to be a valid exercise of the legal authority of the Band and Council.
[47] Counsel for Mr. Lavallee could not point to any legal authority by which the Chief and Council were authorized to make rules for the proceedings of the Appeal Tribunal. Absent such authority, the Appeal Tribunal is the master of its own procedure. That such a separation of authority has been recognized in practice is confirmed by former Chief Sparvier, who says this in his affidavit:
| Once appointed or elected the electoral officers and Appeal Tribunal operate independently of the Band Council and Chief, and the decision-making process they follow is independent of the Chief and Council. |
[48] The right of the Appeal Tribunal to govern its own proceedings is subject only to the requirements of the Election Act and other Band customs, and the supervision of the Court where it is alleged that there has been a breach of the principles of procedural fairness or natural justice.
[49] The Election Act sets out the means by which it may be amended. An amendment requires the passing of a resolution by the Chief and Council as the first step of a process. Before the resolution can take effect as an amendment to the Election Act, it must be presented at three Band meetings. It must be read and discussed at two consecutive Band meetings and then questioned and voted on at a third and final meeting.
[50] It follows that the Chief and Council had no power to direct the Appeal Tribunal in any way, including matters of procedure, and that the resolution of June 4, 1998 did not amend the Election Act. The Appeal Tribunal did not err in ignoring the June 4, 1998 resolution when it met on June 10, 1998 and June 12, 1998.
[51] In reaching this conclusion I intend no criticism of the Chief and Council for attempting to improve the procedural aspects of election appeals. The problem is that their power to achieve that objective is constrained by the Election Act itself, which permits only the Band members to amend the Election Act. The June 4, 1998 resolution would have bound the Appeal Tribunal if it had been adopted by the Band members as an amendment to the Election Act after being considered at three Band meetings as explained above.
[52] I will now consider the more specific arguments made by Mr. Lavallee with respect to decisions of May 26, 1998 and June 12, 1998.
The May 26, 1998 decision
[53] On May 26, 1998, the Tribunal decided that none of Mr. Lavallee's appeals warranted a hearing. That decision was made at a meeting attended by the Tribunal members, Mr. Louison and Ms. Delorme. Mr. Lavallee was not invited to attend that meeting and had no notice of it. The proceedings were not recorded, nor is there any other form of contemporaneous documentation of the proceedings. The only evidence about what happened at the May 26, 1998 meeting is found in the decision letter dated June 29, 1998 and the affidavits of Mr. Louison, Ms. Delorme, and the three Tribunal members.
[54] The decision to hold a hearing into Mr. Delorme's appeal was reduced to writing on the same day, in the form of a document dated May 26, 1998 entitled "Notification of Election Appeal Hearing - Residency." Mr. Delorme was served with that document on May 27, 1998. By contrast, the decision not to hold a hearing with respect to Mr. Lavallee's appeals was not reduced to writing until June 29, 1998, over one month after the decision was made.
[55] It is not alleged that the delay in notifying Mr. Lavallee of the disposition of his appeals caused any prejudice to Mr. Lavallee. None of the documents filed in support of Mr. Lavallee's application raised any issue with respect to the delay. However, counsel for Mr. Lavallee argued at the hearing that the delay casts doubt on the credibility of the Tribunal members and the fairness of the procedure they followed.
[56] While it is true that the affidavits filed in response to Mr. Lavallee's application offer no explanation for the delay, it is also true that Mr. Lavallee's application material is silent on the point. No cross-examinations were conducted by either party. In these circumstances, the delay in and by itself does not justify an adverse inference against the Tribunal members.
[57] Counsel for Mr. Lavallee also argued that the absence of contemporaneous documentation of the results of the May 26, 1998 meeting is a fatal flaw. While it would have been preferable to have such documentation, there is enough evidence of what happened at that meeting to enable me to deal with Mr. Lavallee's present application.
[58] In the context of the Election Act, the initial onus is on the appellant to set out in a notice of appeal all of the relevant facts and arguments in support of the appeal. The material indicates that both Mr. Lavallee and Mr. Delorme understood that requirement, because their notices of appeal are quite detailed. The proceedings on May 26, 1998 were held to permit the Tribunal to fulfil its obligation under the Election Act to consider the notices of appeal that had been filed and to decide whether an appeal was warranted. In doing so, they were obliged to consider the facts alleged by the appellant and determine, from their own knowledge of the Election Act and Band customs with respect to elections, whether the allegations warranted a formal appeal hearing.
[59] It is clear from the reasons dated June 29, 1998 and the other material on the record before me that the Tribunal members considered, not only the notices of appeal and their knowledge of the Election Act and Band customs, but also their personal knowledge of what happened on election day, April 25, 1998.
[60] Counsel for Mr. Lavallee argued that the Tribunal acted improperly in permitting their personal knowledge of the facts to form the basis of their decision not to permit Mr. Lavallee to have a formal hearing with respect to his appeal. There is merit in this argument. In effect, the Tribunal members adduced factual evidence at their May 26, 1998 meeting that contradicted the factual allegations made by Mr. Lavallee, but they did not tell Mr. Lavallee about that evidence. In not giving Mr. Lavallee a chance to respond to that contradictory evidence, they deprived him of a fundamental right that made the entire May 26, 1998 proceeding unfair to him.
[61] It might have been preferable to have a Tribunal whose members had no factual knowledge about the election procedure followed on April 25, 1998, or other matters raised in the notices of appeal. That could have been achieved if the Tribunal members had stayed away from the election entirely, except to cast their own ballots. However, it was argued by counsel for the respondents that it is the custom for Tribunal members to attend elections, and also to be present during the ballot count. Therefore, it is not only unrealistic but contrary to Band custom to require Tribunal members to consider appeals without taking into account their own personal knowledge of the facts.
[62] The evidence adduced by the respondents does not prove that there is any such custom. It is clear that the Tribunal members did in fact attend the April 25, 1998 election and the ballot count, and no one objected to their presence. However, I see nothing in the record to suggest that the presence of the Tribunal was a Band custom, or that the Tribunal members considered themselves obliged to attend by virtue of having been appointed to the Tribunal.
[63] I do not suggest that the Tribunal members should have been forbidden from attending the election and the count. But having done so, it was unfair for them to then rely on their own personal knowledge when determining that Mr. Lavallee's appeals had no merit, without first giving him fair notice of the factual evidence that contradicted his allegations. He should have been allowed to respond to that contradictory evidence before the Tribunal decided whether any or all of his three ppeals warranted a hearing.
[64] I would go further and say that even if the contradictory evidence had come from someone other than the Tribunal members, such as a neutral observer like Mr. Louison as Chief Electoral Officer, Mr. Lavallee in fairness should have been told about that evidence, and should have been given an opportunity to respond to it before the Tribunal determined whether an appeal hearing was warranted.
[65] I do not think it would have been difficult or unduly time consuming to make Mr. Lavallee aware of the contradictory evidence before the May 26, 1998 meeting. He could have been given a written summary of the contradictory evidence with an invitation to provide a written response within a reasonably short period of of time.
[66] Having said that, I would add that the Tribunal had no obligation to permit Mr. Lavallee to personally attend the meeting at which they considered his notice of appeal. As long as he had fair notice of all the contradictory evidence and a reasonable chance to respond, the procedure would have been fair even if he was permitted only to respond in writing.
[67] It is important to note that this extra procedural step is required only if there are disputed facts. It would not be required if, for example, the Tribunal had concluded that even if the factual allegations of the appellant were assumed to be true, no hearing is warranted.
[68] In summary, I have concluded that the Tribunal was wrong to accept the evidence of its own members at the May 26, 1998 meeting and, without notifying Mr. Lavallee of that evidence, rely on it to conclude that Mr. Lavallee's factual allegations could not be sustained. However, it does not follow that this error by the Tribunal, in and by itself, entitles Mr. Lavallee to a remedy. Even if the Tribunal had allowed Mr. Lavallee's appeal to proceed, the best outcome that Mr. Lavallee could have expected is a new election.
[69] There was in fact a new election held on July 3, 1998 in which Mr. Lavallee was not permitted to stand for election as Chief. That is because of the result of the June 12, 1998 hearing into Mr. Delorme's appeal. Unless that June 12, 1998 decision is fatally flawed, the errors of the Tribunal at the May 26, 1998 are moot.
The June 12, 1998 decision
[70] Mr. Lavallee raises several arguments relating specifically to the June 12, 1998 decision. He argues, first, that he was not given adequate notice of the June 12, 1998 hearing.
[71] Mr. Lavallee's evidence is that he received notice early in the morning on June 10, 1998 that a hearing of Mr. Delorme's appeal would proceed and that it would be held at 10:00 a.m. that day. That evidence is not contradicted. However, the late notice is not the fault of the Appeal Tribunal. The affidavit of Ms. Cyr says that she attempted to serve him with this notice at his home on the reserve once on May 27, 1998, twice on May 28, 1998, once on June 2, 1998, once on June 5, 1998 and three times on June 9, 1998. Mr. Lavallee was not at home on any of these occasions.
[72] The notice that was finally served on Mr. Lavallee on June 10, 1998 stated the basis of Mr. Delorme's appeal. The notice explained that Mr. Delorme was alleging that Mr. Lavallee was employed and lived in Regina during the year preceding the nomination meeting. At the date of service Mr. Lavallee was also given a copy of a letter that the Tribunal had sent to Mr. Delorme to give him notice of evidence contradicting Mr. Delorme's allegations. The letter noted that Mr. Lavallee had submitted a sworn affidavit declaring his residency, that he had resided in a house on the reserve for more than six years, that he had farmed his lands on the reserve and had a permit book for more than 22 years, that he appeared on federal and provincial voting lists as having an address on the reserve, and that his postal address is the closest post office to the reserve.
[73] Mr. Lavallee says that he attended the June 10, 1998 hearing and told the Appeal Tribunal that he could not possibly proceed on such short notice. He says that he was advised to re-attend for a hearing on June 12, 1998. He did re-attend but he says that he had been unable in the meantime to obtain the documentary evidence he required to establish that Mr. Delorme's allegations were wrong, and he had also been unable to instruct counsel. He does not say whether or not he requested a further adjournment on June 12, 1998. I infer that he did not.
[74] The affidavits of Mr. Louison and Gary Pelletier confirm that Mr. Lavallee attended the June 10, 1998 hearing, that he complained of the short notice, and that he asked for and was granted an adjournment to June 12, 1998.
[75] Mr. Pelletier's affidavit gives some details of the discussion about the adjournment. He says that he asked Mr. Lavallee if a forty-eight hour adjournment would be enough time for him to prepare, and Mr. Lavallee replied that it would. That is confirmed by the affidavits of Ms. Cyr and Mr. Stevenson.
[76] Mr. Pelletier also says that Mr. Lavallee did not indicate an intention to seek counsel or that he would need additional time for that purpose. According to Mr. Pelletier, if Mr. Lavallee had indicated that the forty-eight hour adjournment was insufficient, the Appeal Tribunal would have considered giving him more time. None of this is contradicted by Mr. Lavallee.
[77] Mr. Lavallee has failed to establish that he was not given enough notice of the June 12, 1998 hearing. He knew on June 10, 1998 the substance of the allegations that Mr. Delorme was making with respect to the question of his residence. I accept the uncontradicted evidence of Mr. Pelletier that Mr. Lavallee told the Appeal Tribunal that forty-eight hours would give him sufficient time to prepare, and that on June 12, 1998 he did not ask for more time. It is too late now for Mr. Lavallee to say that he did not have enough time to prepare for the June 12, 1998 hearing.
[78] It is also argued for Mr. Lavallee that the Appeal Tribunal's proceedings should be set aside because there is no transcript or other contemporaneous recording of the proceedings, and therefore it is impossible to conduct a judicial review of the proceedings. In my opinion no such record was necessary. Mr. Lavallee personally attended the hearings and had an opportunity to know all of the evidence that the Appeal Tribunal considered. The members of the Appeal Tribunal have submitted affidavits explaining how the proceedings were conducted and have appended the documentary evidence that was considered. Their evidence is not contradicted. They were not cross-examined on their affidavits.
[79] Finally, counsel for Mr. Lavallee argues that the Appeal Tribunal erred in determining the question of Mr. Lavallee's residence. He argues, first that the the Appeal Tribunal did not state what legal principles they applied in determining Mr. Lavallee's residency.
[80] There are many decided cases on the question of residence in many contexts, including income tax law, citizenship law and laws governing elections. The legal meaning of "residence" varies with the context it which it is used. I was referred to no case law on the meaning of residence in the context of Cowessess Band custom elections.
[81] Counsel for Mr. Lavalle did not suggest what legal test the Appeal Tribunal should have applied, nor did he argue that they did not apply the correct legal test. It seems to me that the Appeal Tribunal interpreted "residence" in its normal sense as the place where a person habitually lives, eats and sleeps. I have no basis for concluding that the Appeal Tribunal should have adopted a different meaning.
[82] Counsel for Mr. Lavallee also argues that the Appeal Tribunal reaches the wrong conclusion about his place of residence. In this application, Mr. Lavallee submitted evidence that is intended to prove that he met the residence requirement under the Election Act. However, the Appeal Tribunal and only the Appeal Tribunal has the authority to determine that question. All I can do is determine whether the conclusion of the Appeal Tribunal was reasonable, in the sense that it is correct in principle and supported by the evidence they had before them. I cannot take into account evidence that was not before the Appeal Tribunal, even evidence that Mr. Lavallee says could have been given to them if had been allowed more time to prepare.
[83] I have concluded, based on the affidavits of the members of the Appeal Tribunal and the documentary evidence they had before them, that their decision was reasonable.
Conclusion
[84] As I have found no error in the June 12, 1998 decision of the Appeal Tribunal that Mr. Lavallee was ineligible for election as Chief, that decision must stand. It follows that the result of the July 3, 1998 election must also stand.
[85] Mr. Lavallee's application with respect to the May 26, 1998 decision of the Tribunal is rendered moot. Therefore, even though errors were made with respect to that decision, Mr. Lavallee is not entitled to a remedy.
[86] This application will be dismissed with costs.
Karen R. Sharlow
Judge
Ottawa, Ontario
September 3, 1999
__________________1Sparvier v. Cowessess Indian Band #73, [1994] 1 C.N.L.R. 182 (F.C.T.D.)
2Lakeside Hutterite Colony v. Hofer, [1992] 3 S.C.R. 165.
3This refers to the rules of natural justice as explained in the Sparvier case (supra).