Date: 19981126
Docket: T-594-98
BETWEEN:
ALLAN TAYLOR,
Plaintiff
AND:
KWANLIN DUN FIRST NATION BY-ELECTION APPEALS BOARD
and JOHN EDZERZA
Defendants
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for an order of certiorari setting aside the decision of the respondent Kwanlin Dun First Nation By-election Appeals Board dated January 30, 1998.
[2] The facts are as follows. On December 20, 1997, a by-election was held in the Kwanlin Dun First Nation for council member of the Chief and Council of the Kwanlin Dun First Nation. The election was won by the plaintiff Allan Taylor. By letter dated January 5, 1998, the defendant John Edzerza appealed the result of the by-election to the Chief Electoral Officer. Thereafter, at some time during the period between January 5, 1998, and January 21, 1998, a Kwanlin Dun First Nation Appeals Board was appointed by Joe Jack, acting as Chief of the Kwanlin Dun First Nation.
[3] On January 21, 1998, Mr. Taylor received notice of the hearing of the Appeals Board to be held on January 23, 1998, and was advised that he had to submit his evidence in support of his position by January 22, 1998. By decision dated January 30, 1998, the Appeals Board declared that the plaintiff was ineligible to hold office and that the defendant John Edzerza be elected as a result of the December 20, 1997 by-election.
[4] The plaintiff now seeks to have that decision set aside on the grounds that Appeals Board was not established in accordance with the procedure set out in the Kwanlin Dun First Nation Election Regulations and Procedures; that the plaintiff was not provided with sufficient notice of the hearing before the Appeals Board to allow him to effectively prepare his case; that the Appeals Board failed to provide disclosure of relevant information within a reasonable period of time prior to the hearing; and, that the Appeals Board refused to allow the plaintiff to cross-examine witnesses at the hearing.
[5] I am allowing the application for the following reasons. To begin, an unbiased appearance is an essential component of procedural fairness. Boards that are primarily adjudicative in nature will be expected to comply with a high standard in this regard and the appointment and conduct of their members must be such that there could be no reasonable apprehension of bias with regard to their decision or their decision-making process. The test, as set out by the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, is whether a reasonably informed bystander could perceive bias on the part of an adjudicator. Here, there is no question that the timing and manner of appointment of the Appeals Board members, as well as the procedure used at the hearing before it, creates a reasonable apprehension of bias.
[6] First, the Kwanlin Dun First Nation is politically divided into two groups; one group being the Coalition for Democracy (the "Coalition"), of which the plaintiff is a member, and another group whose leaders are comprised of Joe Jack, William Carlick and Colleen Williams. The defendant John Edzerza is associated with the latter group.
[7] After Mr. Edzerza appealed the results of the by-election, an Appeals Board was appointed by Joe Jack, William Carlick and Colleen Williams at what was allegedly a meeting of Council and a group of individuals who referred to themselves as the Elders' Council. Indeed, this latter group had previously appointed John Edzerza as Acting Chief in the summer of 1997. However, Pat Joe, Jason Shorty and Helen Charlie, who were also members of the Council, but who, like the plaintiff, were associated with the Coalition, were not permitted to take part in the process of establishing the Appeals Board.
[8] Furthermore, the Kwanlin Dun First Nation Election Regulations and Procedures requires that an Appeals Board be established not less than thirty days prior to an election. The Appeals Board in the present case was established almost one month after the election had occurred. The purpose of appointing a Board prior to an election is to ensure that its members are impartial since their appointment takes place prior to the election results being known. It is, therefore, a means to avoid the situation which evolved in the present case of an Appeals Board being comprised of members who clearly support one of the parties appearing before it.
[9] With respect to the procedure used at the hearing before the Appeals Board, the evidence demonstrates a number of defects. It is trite law that persons affected by the decision of an administrative tribunal are entitled to prior notice of a hearing before the Board so as to enable them to make representations. The notice must be given in sufficient time to enable those representations to be made effectively. These principles of natural justice were certainly breached here. Mr. Taylor was notified of the hearing on January 21, 1998 and advised to have his evidence submitted by January 22, 1998. The hearing before the Board took place on January 23, 1998. That time frame simply does not constitute "adequate" notice.
[10] At the hearing before the Board on January 23, 1998, the defendant John Edzerza submitted eleven written statement for consideration by the Appeals Board. He requested that the authors of the statements be kept secret from Mr. Taylor, that he not be permitted to view the statements or cross-examine their deponents, and that the statements be shredded immediately following the hearing. All of those requests were granted by the Chairperson of the Appeals Board.
[11] In the context of a judicial or quasi-judicial hearing, the right to cross-examination is not automatic. However, in cases such as the one at bar, where new evidence is introduced or where the cross-examination of a witness is crucial to the ability of the person affected to answer the case against him, or to challenge the contents of the document relied upon, refusal to allow cross-examination amounts to a breach of natural justice. In my view, the Appeals Board's failure to disclose to Mr. Taylor the eleven statements upon which it relied and its refusal to allow him to cross-examine with respect to those statements violated the audi alteram partem rule thereby preventing Mr. Taylor from having a fair and impartial hearing.
[12] Given the numerous defects in both the creation of the Appeals Board and the procedure used at the hearing before it, I am satisfied that its decision must be set aside. An order of certiorari will issue quashing the decision of the Board and Mr. Taylor is reinstated to the position of the Chief and Council of the Kwanlin Dun First Nation for which he was elected.
JUDGE
OTTAWA, Ontario
November 26, 1998