Ottawa, Ontario, March 8, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SWEETGRASS FIRST NATION
Applicant
and
VIRGINIA FAVEL and MYRON PASKEMIN, in their own capacities
and as purporting to act as the Election Tribunal of Sweetgrass First Nation
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] By this application for judicial review, Sweetgrass First Nation (Sweetgrass) seeks a declaration with respect to the composition of an Election Tribunal (Tribunal) appointed under the Sweetgrass Band Election Act (Act) to investigate the propriety of a Band election conducted on November 13, 2005. This is the second application brought by Sweetgrass in support of Band Council Resolutions (BCR) purporting to alter the membership of the Tribunal. The first application was brought before me at a hearing in Saskatoon on May 15, 2006 seeking a declaration that two of the three members of the Tribunal were disqualified from acting and had been lawfully replaced by the Band Council. On that occasion Sweetgrass sought to remove the Tribunal Chair, Lori Gollan, and Member, Myron Paskemin, on the basis of alleged appointment irregularities and, with respect to Ms. Gollan, for bias. In my decision rendered on June 20, 2006, I did grant the requested relief with respect to Ms. Gollan and I directed that the Band Council appoint her successor within 30 days: see Sweetgrass First Nation v. Gollan, Favel and Paskemin, [2006] F.C.J. No. 969, 2006 FC 778. In the case of Mr. Paskemin, I held that Sweetgrass had not established any basis for his removal from the Tribunal. The following passages from my earlier decision provide the rationale for dismissing the application by Sweetgrass with respect to Mr. Paskemin:
[31] Sweetgrass has challenged the right of Mr. Paskemin to sit as a member of the Tribunal based upon a further technical argument. Sweetgrass does not say that he is disqualified from acting on the ground of bias. Sweetgrass contends that Mr. Paskemin's appointment was irregular and not in conformity with the Act and that the earlier appointment of Ms. Weenie should be restored. Some concern has also now been expressed about Mr. Paskemin's ability to dispassionately sit in judgment of the election in the face of this challenge to his membership on the Tribunal. Sweetgrass argues that there is benefit in having an effective sweep of the Tribunal with replacements who can be seen to be objective and impartial.
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[34] The attempt by the current Council to unseat Mr. Paskemin on technical grounds and to replace him with a person with such obvious family ties to the current Chief detracts from its argument that it is truly committed to a transparent and impartial appeal process.
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[36] Finally, I also do not accept that this challenge to Mr. Paskemin's right to continue as a member of the Tribunal is a basis for concern that he could not fairly carry out his responsibilities. Such an argument would disqualify any member of a tribunal simply because his right to sit was legally challenged. There can be no such basis for removing a member of an adjudicative body absent evidence of disqualifying bias. Here there was no evidence offered that Mr. Paskemin was biased, and there is no basis whatsoever for removing him from the Tribunal.
[37] In the result, I do not accept the argument by Sweetgrass that Mr. Paskemin [...] should be removed on the basis of alleged appointment irregularities.
[2] In accordance with my decision, the Band Council did replace Ms. Gollan as Tribunal Chair with Mr. Robert Pelton, Q.C. by resolution dated July 4, 2006. Regretably, it would appear that Mr. Pelton was not advised of his appointment until August 1, 2006. To further complicate matters, on July 31, 2006 the Band Council purported to replace Mr. Paskemin on the Tribunal with Gordon Albert. The BCR supporting the removal of Mr. Paskemin stated that he was in a conflict of interest “having family members currently sitting on Sweetgrass First Nation Band Council namely Elsie Whitecalf and Archie Weenie, and Myron Paskemin has a family member namely Quinton Weenie who stood for election on November 13, 2005”.
[3] The Record indicates that, notwithstanding the July 31, 2006 Band Council decision, Mr. Paskemin and the second member of the Tribunal (Virginia Favel) were strongly disposed to proceed with the investigation of the 2005 Band election. However, Mr. Pelton was not prepared to act as Chair until the issue of Mr. Paskemin’s membership on the Tribunal was resolved. By agreement reached in late August, 2006, the parties resolved to put the issue of Mr. Paskemin’s status on the Tribunal back before the Court on an expedited basis. The within application was filed with the Court on October 4, 2006 and the matter was scheduled for argument in Saskatoon on February 22, 2007.
[4] In the application materials filed by Sweetgrass the factual basis for the Band Council decision purporting to remove Mr. Paskemin from the Tribunal was expanded from allegations of disqualifying family conflicts to include allegations concerning his prior financial dealings with the Band.
[5] In an affidavit deposed by the Band Administrator, Agnes Albert, it was asserted that Mr. Paskemin “is related to numerous candidates in the [November 13, 2005] election” including two nephews, a first cousin, a cousin once-removed, a niece and a grand-nephew. Ms. Albert’s affidavit also claimed that in November, 2005, Mr. Paskemin was paid $300.00 for clearing brush and cleaning ditches (a fact conceded by Mr. Paskemin) and that, throughout 2005, a business with which he was involved (Paskemin & Associates Consulting) had benefited financially from a number of contracts issued “under the auspices of the previous Chief and Council”. It is noteworthy that Ms. Albert’s affidavit asserts that Paskemin & Associates Consulting was “his [Mr. Paskemin’s] business” but she offers no further evidence to indicate the extent of any actual financial advantage accruing to him from the business.
[6] Mr. Paskemin’s responding affidavit indicates that none of the election candidates related to him are in his immediate family and, in any event, most of the 1500 Band members “are related to each other in some way”. The extensive familial linkages within Sweetgrass are confirmed in the affidavit of Ms. Albert and highlighted by the relationships which existed between the Band Council’s chosen replacement for Mr. Paskemin, Gordon Albert, and several election candidates. Ms. Albert’s affidavit confirms the existence of Mr. Albert’s familial relationships with election candidates similar to those of Mr. Paskemin including a cousin, a sister-in-law, and a half brother.
[7] With respect to the allegations concerning Mr. Paskemin’s alleged financial interest in the affairs of Sweetgrass, he deposed that Paskemin & Associates Consulting was his daughter’s business in which he was only a nominal partner – a business for which he did no work, from which he received no payment and which has since been dissolved. Mr. Paskemin’s affidavit described his financial circumstances and the nature of his prior work for Sweetgrass in the following passage:
17. I have nothing to gain financially whether the current or previous administration is in power. I am retired and living on a small pension. Given my advanced age, I am not capable of hard manual labour. If a minor job were to come up (such as cleaning a ditch) and I was available, willing and capable of doing the job, I do not think I would be prejudiced or advantaged regardless of who was in power as, as stated, such incidental work tends to be awarded to whoever is around.
18. Lastly, the fact of any previous work I did for the Band would have been well known to the newly elected Band, yet no objection was made before or after the election, or to the Federal Court when the Band previously sought to remove me for perceived bias.
Issues
[8] a. Is Sweetgrass entitled to relitigate the issue of Mr. Paskemin’s status as a member of the Tribunal having regard to the previous decision of this Court and to the principle of res judicata?
b. Did the Sweetgrass Band Council have any lawful basis for purporting to remove Mr. Paskemin from the Tribunal on the basis of apprehended bias?
c. What is an appropriate award of costs?
Analysis
[9] It is a long established principle of Canadian law that a party to litigation is not entitled to relitigate issues which have either been finally determined in judicial proceedings between the same parties or with respect to issues which could have been raised in such earlier proceedings. This rule requires a party to litigation to put its complete case before the Court and to include all matters which properly belong to the subject of the initial litigation. A fairly recent pronouncement of this principle can be found in the Federal Court of Appeal decision in Apotex Inc. v. Merck and Co., [2002] F.C.J. No. 811, 2002 FCA 210:
[28] It is also clear from the Supreme Court of Canada's judgments in Maynard v. Maynard, [1951] S.C.R. 346, and Doering, supra, that issue estoppel operates to preclude a party from litigating new issues which could have been raised, but were not, at the earlier hearing. The judgment of the Judicial Committee of the Privy Council in Hoystead v. Commissioner of Taxation, supra, at 165 is cited with approval in Angle, Doering, and Maynard, supra:
Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle.
It follows that a party will not be permitted to return to Court to litigate that which could have been raised in the earlier litigation before the Court.
[10] The above principle obviously applies to the issue raised on this application. In the earlier proceeding the eligibility of Mr. Paskemin to sit as a member of the Tribunal was squarely placed in issue by Sweetgrass in its pleadings and in the evidence and argument which were advanced on its behalf.
[11] Although the previous basis for challenging Mr. Paskemin’s right to participate in the work of the Tribunal related to claimed irregularities in his appointment, there is no reason why the evidence now before me of alleged bias could not have been tendered in the earlier proceeding. Presumably Mr. Paskemin’s family relationships with some of the election candidates were well-known within the Band. Similarly, Mr. Paskemin’s business and employment history with the Band – limited as it was – would have been a matter of public knowledge. The fact that no one in the Band took the trouble to look for the related documentary evidence in the context of the earlier proceeding in this Court does not satisfy the heavy burden of establishing reasonable diligence necessary to bring new evidence in a fresh proceeding: see Doering v. Grandview, [1976] 2 S.C.R. 621.
[12] In the earlier proceeding, I was asked to rule on Mr. Paskemin’s eligibility to sit as a member of the Tribunal and I confirmed that right. The fact that Sweetgrass failed to put its strongest case forward in that proceeding did not give it the right to subsequently remove Mr. Paskemin from the Tribunal on the basis of evidence that was known or reasonably available to it.
[13] Mr. Paskemin is quite correct in his assertions that the earlier Judgment of this Court constituted a binding declaration confirming his right to sit on the Tribunal and Band Council had no right to remove him in the face of that declaration.
[14] While it is not strictly necessary to address the merits of the allegations of bias levelled against Mr. Paskemin, it would, I think, be prudent to do so if for no other reason than to remove any lingering concerns about that issue by the electors of Sweetgrass.
[15] The essence of the allegations against Mr. Paskemin is that he received $300.00 from Sweetgrass for clearing some brush and ditches in late 2005 and that he may have benefited from contract work given to a business in which he held an interest, namely Paskemin & Associates Consulting. Mr. Paskemin has stated under oath that he neither worked for nor benefited from his interest in Paskemin & Associates Consulting. He deposed that the business was run by his daughter and it has since been dissolved. That particular evidence was not challenged by Sweetgrass and I, therefore, accept it over the bare and unsubstantiated assertion by Sweetgrass that Paskemin & Associates Consulting was Mr. Paskemin’s business.
[16] Mr. Paskemin’s family relationships to a number of election candidates both successful or otherwise are not, of course, disputed.
[17] The question, then, is whether the above-noted evidence is sufficient to give rise to an apprehension of bias such that Mr. Paskemin would be disqualified from sitting on the Tribunal.
[18] Dealing first with Mr. Paskemin's family relationships, I am struck by the inconsistent approach taken by Band Council to Mr. Paskemin’s eligibility from that adopted in the case of his proposed successor, Mr. Albert. The argument that Mr. Paskemin's family connections are sufficient to justify his removal but that the similar relationships of Mr. Albert can be safely ignored, indicates that Band Council’s stated reasons for removing Mr. Paskemin are illegitimate. Indeed, one is left with the distinct impression that Band Council’s decision to remove Mr. Paskemin was motivated by a political interest to delay the work of the Tribunal and not by any real concern about a perceived lack of impartiality.
[19] In any event, the kind of family relationships relied upon by Sweetgrass to justify Mr. Paskemin’s removal do not give rise to any concern about bias. In a community of the size and composition of Sweetgrass, these types of distant family connections are inevitable. To give them the kind of effect proposed by the current Band Council would presumably disqualify almost every elector within Sweetgrass from sitting on the Tribunal. Here, I am guided by the common sense approach adopted by Justice Karon Sharlow in Lavallee v. Louison, [1999] F.C.J. No. 1350 where she held:
[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.
[20] The same basic principle applies to Mr. Paskemin’s prior financial dealings with Sweetgrass such as they were. His work for the Band in 2005 and the resulting compensation of $300.00 were presumably a fairly common experience within the community and would not give rise to any realistic concern that the recipient would not be able to render impartial service to the Tribunal. This is a significantly different situation than the one which gave rise to Ms. Gollan’s disqualification. She had a substantial and long-standing financial relationship with Sweetgrass which included a close-working relationship with the previous Chief and Band Council. Mr. Paskemin had no expectation of continued employment by the Band and the amount of compensation which he did receive in 2005 was nominal. For the reasons previously stated, Mr. Paskemin’s nominal relationship to Paskemin & Associates Consulting is of no legal significance.
[21] In conclusion, I reject unreservedly the allegations of bias levelled by Band Council against Mr. Paskemin. There is simply no factual basis to support a plausible argument that he would be unable to participate fairly and impartially in the work of the Tribunal. This application for judicial review is, therefore, dismissed.
[22] I would be remiss if I did not express a concern about the delay in having the Tribunal carry out its mandate. The Band election was conducted more than fifteen (15) months ago and another election is scheduled for November of this year. It is essential that the Tribunal be permitted to complete its work and its inability to do so to date is undoubtedly of concern to many Sweetgrass electors having regard to the outstanding allegations of election impropriety following the 2005 election. Notwithstanding the submissions made by counsel for Mr. Paskemin, I do not believe that it is necessary for me to now direct the Tribunal to proceed in accordance with its obligations under the Act nor do I think it appropriate to direct Band Council to refrain from taking any further action which could delay the work of the Tribunal. Suffice it to say that this process should now move forward in a timely manner without further unwarranted interference from Band Council or from any other interested party.
[23] With respect to the question of costs, I will, once again, order that Mr. Paskemin be paid his legal costs on a solicitor-client scale. This is in conformity with my earlier decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
THIS COURT FURTHER ADJUDGES that legal costs on a solicitor-client scale be awarded to Mr. Paskemin.
"R. L. Barnes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1774-06
STYLE OF CAUSE: Sweetgrass First Nation
v.
Favel, et al.
PLACE OF HEARING: Saskatoon, SK
DATE OF HEARING: February 22, 2007
AND JUDGMENT BY: Justice Barnes
APPEARANCES:
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Mr. Richard W. Danyliuk
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Mr. Terry J. Zakreski
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SOLICITORS OF RECORD:
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McDougall Gauley LLP Barristers & Solicitors Box 638, 701 Broadway Avenue Saskatoon, Saskatchewan S7K 3L7
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Mr. Terry J. Zakreski Stevenson Hood Thornton Beaubier LLP Barristers & Solicitors 500 - 321A, 21st Street East, Saskatoon, Saskatchewan S7K OC1 |