Ottawa, Ontario, April 20, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
COUNCILLOR ALLAN BIRD,
COUNCILLOR LAMBERT STONECHILD,
COUNCILLOR BRIAN DESNOMIE,
in their capacities as Council Members of Peepeekisis First Nation
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, in respect of a decision by the Council of the Peepeekisis First Nation, communicated to the applicant in a letter dated July 26, 2005, removing the applicant as Chief of the Peepeekis First Nation and ordering a by-election, which took place in September 2005.
BACKGROUND
[2] Lyle Desnomie (the applicant) was elected Chief of the Peepeekisis First Nation on December 15, 2002.
[3] Charges of assault were filed against the applicant by a fellow Band member stemming from an incident in late 2004, and were eventually stayed on July 4, 2005.
[4] In the meantime, an amendment to the Peepeekisis First Nation Custom Election Act (the Custom Election Act) was adopted at a Peepeekisis First Nation Band Membership Meeting held on January 15, 2005. The proposed amendment essentially stated that, should an elected Chief be charged with a criminal offence, he would be removed from office immediately, pending a resolution of the charges.
[5] By letter dated February 22, 2005, the applicant was informed that the Peepeekisis Governing Body had decided to suspend him from his position as Chief of the Peepeekisis First Nation, in accordance with the amended Custom Election Act.
[6] On May 25, 2005, the Peepeekisis Governing Body sent a letter to the applicant requesting information in relation to certain matters, which they alleged to have been breaches of his fiduciary duty to the Band.
[7] On July 26, 2005, the applicant was sent a letter from the Peepeekisis Governing Body, informing him that a meeting had been held on July 25, 2005, and that during this meeting, he had been permanently removed from his position as Chief, as per section 7 of the Custom Election Act, and that a by-election would be held to replace him.
[8] A by-election was held in September 2005 and Bev Bellegarde was elected Chief of the Peepeekisis First Nation.
[9] It is the decision taken on July 25, 2005, to remove the applicant as Chief and to hold a by-election to replace him, that is the subject of this judicial review application.
ISSUES FOR CONSIDERATION
[10] The following issues must be considered in this judicial review application:
1) Is the application for judicial review premature because the applicant failed to avail himself of the proper appeal procedures outlined in the Custom Election Act?
2) Did the process to remove the applicant as Chief of the Peepeekisis First Nation violate the duty of fairness owed to the applicant?
STANDARD OF REVIEW
[11] Where allegations of a breach of natural justice or procedural fairness are raised, decisions must be reviewed on a standard of correctness (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539). As such, if this Court finds that the duty of fairness owed to the applicant was violated, no deference will be given to the decision-maker and the application to set aside the decision will be granted.
ANALYSIS
1) Is the application for judicial review premature because the applicant failed to avail himself of the proper appeal procedures outlined in the Custom Election Act?
[12] Before turning to the allegations raised by the applicant, I wish to address the sole argument of the respondents, who submit that judicial review applicants must first exhaust all forms of redress available in legislation before they can be granted any extraordinary relief through the court’s supervisory function. In this case, the respondents allege that the applicant failed to exercise his statutory right of appeal under Article 9 of the Custom Election Act before seeking judicial review of the decision and therefore, his application should be dismissed.
[13] The flaw in the respondents’ argument is that they have failed to provide this Court with a statutory provision that would support the claim that a procedure was available to the applicant to appeal the decision of the Council. In fact, counsel for the respondent has directed this Court to an irrelevant statutory provision, one that deals with amendments to the Custom Election Act, to support this argument. After a careful review of the Custom Election Act, the only provision for an appeal under the Act that this Court could find was an appeal of the results of an election under Article 8. In the case before us, the applicant does not challenge the election results, but challenges his own removal from office, which led to the calling of a by-election, and thus Article 8 does not apply.
2) Did the process to remove the applicant as Chief of the Peepeekisis First Nation violate the duty of fairness owed to the applicant?
[14] The applicant submits that the Council had a duty of fairness towards him which it failed to uphold. As stated by the Supreme Court of Canada in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 at paragraph 79:
The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations and an unbiased tribunal.
In this case, the applicant alleges that he was given no notice of the charges against him and of the meeting where the decision was taken, and thus was denied an opportunity to make representations. The applicant also maintains that the decision process raises a reasonable apprehension of bias, as the decision was not made by a proper Council of Elders, as required under the Custom Election Act.
[15] The respondents have made no written representations to answer these allegations of violating the duty of fairness, although they did submit the minutes of various Council and Band meetings that have helped to shed some light on the process that was followed to reach the decision now under review.
[16] The letter dated July 26, 2005, informing the applicant that he had been removed from his position as Chief, refers to the following sections of the Custom Election Act as providing the authority to remove the applicant:
7.1 The office of Chief or Headperson shall become vacant when the persons[sic] who holds that office:
A) Dies or otherwise is unable to holding[sic] that office or if the person holding that office resigns his/her position.
B) Is absent from three (3) consecutive Council meetings without just cause.
C) Is found by the Council of Elders to be guilty of corrupt election practice, accepting a bribe, dishonesty or malfeasance within the office.
D) The Council of Elders of the PEEPEEKISIS FIRST NATION may declare a person who ceases to hold office by virtue of this Act ineligible to hold office either as Chief or Headperson for a period of up to ten (10) years.
7.3 The Council of Elders hereby have[sic] the authority to release any Chief or Headperson from his/her position in accordance with this Act.
[17] A reading of this section makes it clear that it is the Council of Elders, not the Governing Body, who is responsible for making such a decision. The problem arising in this case is that no proper Council of Elders was ever created following the adoption of the Custom Election Act. As evidenced by the minutes of the Peepeekisis Band Membership Meetings of January 15, 2005 and February 26, 2005, this issue was a cause of concern for some members before the removal of the applicant became an issue. However, nothing was ever done to address it.
[18] It would seem that it was only when the Peepeekisis Governing Body decided that there might be grounds to remove the applicant from his functions that efforts were made to create a Council of Elders. It is the process followed to create this Council of Elders to which the applicant objects, as not every possible elder was informed that such a Council was being formed to deal with the situation, and those who came to form this Council only represented a minority of the Peepeekisis First Nation Membership.
[19] A review of the Custom Election Act does not offer any guidance as to how such a Council of Elders ought to have been formed, so that it cannot be determined whether the procedure followed was in accordance with the legislation. Furthermore, no evidence was submitted by either party to support whether or not the process followed was in accordance with the customs of the Peepeekisis First Nation. Therefore, we must look to principles of procedural fairness to determine whether the applicant’s rights were violated by the Council of Elders, and whether the process followed to create the Council of Elders raises a reasonable apprehension of bias.
[20] The test for determining bias of an administrative tribunal was first elaborated by Mr. Justice Louis-Philippe de Grandpré in the Supreme Court of Canada decision Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, who wrote at pages 394-395:
...the apprehension of bias must be a reasonable one held by reasonable and right minded 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 a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude..."
[21] The process chosen to create a Council of Elders, as evidenced by the minutes of the July 18, 2005 meeting of the Governing Body, was to ask the elders who already sat on various committees to sit on the Council of Elders and, if there was a conflict of interest on a particular question, than the person with the conflict could be replaced by an elder on an alternate list. A meeting of this Council of Elders was then held on July 20, 2005. Only three elders showed up at the meeting and a decision was made to release the applicant from his position, on the grounds that he had missed three meetings and that he had taken money while suspended. The Council of Elders further recommended that a by-election be held to replace the applicant.
[22] On July 25, 2005, a Band meeting was held at which the recommendation of the Council of Elders was presented. Objections were raised by some members regarding the process followed to create this Council of Elders. In response to these objections, all elders who were present at the meeting were asked to sit together and discuss the recommendations and determine whether or not they agreed with them. Following this discussion, this new Council of Elders also recommended that the applicant be removed from his position and that a by-election be held. This recommendation to remove the applicant was then put to a vote at the Band meeting, with the following results: 47 in favour, 4 opposed, and 7 abstentions.
[23] Having outlined the key stages in the process followed to remove the applicant from his position, we can now turn to the reasons provided by this three-person Council of Elders for the removal: the applicant was removed from his position on the grounds that he had missed three consecutive meetings and that he had taken money while suspended. Section 7.1 of the Custom Election Act, reproduced at paragraph 16 of this decision, contains a provision to the effect that a Chief may be removed from his position, if it is determined that he was “absent from three (3) consecutive Council meetings without just cause”.
[24] The first problem I have with this decision is that no evidence was provided regarding whether those meetings were missed following the decision of the Peepeekisis Governing Body to suspend him from his position as Chief by a letter dated February 22, 2005, pending a resolution of the criminal charges laid against him. In other words, it would be important to know whether the Council of Elders decided to release him based on his absence from three consecutive meetings which took place before or after February 22, 2005, as well as the precise dates of the meetings he allegedly missed. Furthermore, there was no evidence submitted on whether the applicant was asked if he had “just cause” to be absent from these three consecutive meetings, as per the wording of section 7.1 of the Custom Election Act.
[25] The other ground invoked for the recommendation to remove the applicant from his position as Chief, was that he had taken money while suspended. The evidence provided shows that there was some mention of this allegation during previous Band meetings, but there is no evidence that the applicant was ever confronted with this particular allegation and asked whether he had a valid explanation for his actions, before a decision was made. In fact, the recommendation by the Council of Elders was made without personal appearance by the applicant or a designated representative, as the applicant was never invited to appear before them to explain or to respond to the allegations.
[26] As outlined in paragraph 22 of these reasons, objections were raised by Band members at the July 25 meeting of the Governing Body regarding the process followed to create the Council of Elders. As such, a new Council of Elders was convened out of the elders present at this meeting to determine if they approved the recommendation already made by the Council of Elders following its meeting of July 20, 2005.
[27] Regardless of the subsequent attempt at the Governing Body meeting to mitigate the flaws in the process originally followed to obtain a recommendation of the Council of Elders, it is my belief that the overall process still violated the applicant’s right to procedural fairness. Given the importance of the decision that was put to the Council of Elders, namely the release of the applicant from his elected position as Chief, there was an obligation on the part of the Governing Body to ensure that the process followed would be totally independent and free of bias.
[28] As I already noted, the elders that were asked to participate in the Council of Elders were those that were already sitting on various committees and had a direct link to the Governing Body. Other than expediency, there does not appear to be a valid reason why the Governing Body did not ask all the elders of the Band to participate in this Council of Elders. When you add to that the fact that only three elders showed up, and that the Chief was never asked to appear before them and respond to the allegations, there is no doubt in my mind that the process followed was flawed on its face from the very beginning, and could not be ‘cured’ by the subsequent July 25 meeting where the recommendation of the Council of Elders was approved.
[29] I acknowledge that the Custom Election Act did not provide much guidance to the Governing Body to determine how to properly gather a Council of Elders. Nevertheless, elementary prudence and fairness commanded that they try to gather the largest possible audience of elders, considering the importance of the decision for the applicant.
[30] In my view, the process followed to create the Council of Elders does not raise a reasonable apprehension of bias per se. Nevertheless, I have no hesitation to conclude that there was a patent violation of the applicant’s right to procedural fairness.
[31] I also cannot agree with the respondents that reasonable steps were taken to compensate for the irregularities in the process followed, as I cannot find any evidence that the applicant was asked to provide, in writing or orally, his arguments in response to the allegations made against him.
[32] The fact that the applicant was aware that a Band meeting would be held on July 25, 2005, is not sufficient. The minutes of the July 18, 2005 meeting of the Governing Body mention that the Council of Elders would be created from elders who already sat on various committees and a meeting of this Council of Elders was then held on July 20, 2005. Five days later, on July 25, a Band meeting was held to receive the recommendation of the Council of Elders. Looking at this process of three meetings within a period of seven days, I see no evidence that the Chief was ever asked, during that time, to provide a response to the allegations, an omission which, in my view, is fatal to the Council of Elders’ decision. Even though the Governing Body had informed the applicant of their concerns over some expenses made while he was suspended from his position as Chief, and invited him to respond, this did not remove the obligation of the Council of Elders to invite the Chief to respond to the allegations in the context of their deliberations.
[33] Obviously, there is some confusion regarding the comments and allegations that were made during the various meetings of the Band. Nevertheless, to meet the test of procedural fairness, there is, at a minimum, an obligation to provide the person with adequate notice and an opportunity to respond when serious allegations of wrongdoing are raised, which could have serious consequences, such as in this case, the release of the applicant from his position as Chief.
[34] I would also like to note at this point that I am not questioning the validity or the reasonableness of the allegations; my only concern is with regards to the process followed to reach a decision. In truth, the facts surrounding this application do not elicit a lot of sympathy for the applicant. Nevertheless, whether the decision to release the applicant from his position was right or wrong, they still owed a duty of fairness, including the right to be heard, to anybody facing such serious allegations of wrongdoing.
[35] Therefore, I find that the applicant was not given proper notice of the charges against him by the Governing Body or the Council of Elders, and was not provided with an opportunity to respond, and thus there was a clear violation of the applicant’s right to be heard under the duty of fairness that justifies the intervention of this Court.
[36] For all the above reasons, this application is granted. The decision of the Council of the Peepeekisis First Nation communicated to the applicant in a letter dated July 26, 2005, removing the applicant as Chief of the Peepeekisis First Nation and ordering a by-election which took place in September 2005, is set aside.
[37] Costs will be granted in favour of the applicant.
JUDGMENT
1. The application is granted;
2. The decision of the Council of the Peepeekisis First Nation communicated to the applicant in a letter dated July 26, 2005, removing the applicant as Chief of the Peepeekisis First Nation and ordering a by-election which took place in September 2005, is set aside;
3. Costs in favour of the applicant.
“Pierre Blais”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1759-05
STYLE OF CAUSE:
CHIEF LYLE DESNOMIE
Applicant
and
COUNCILLOR MAURICE NOKUSIS,
COUNCILLOR ALLAN BIRD,
COUNCILLOR LAMBERT STONECHILD,
COUNCILLOR BRIAN DESNOMIE,
in their capacities as Council Members of Peepeekisis First Nation
Respondents
PLACE OF HEARING: Winnipeg by teleconference
DATE OF HEARING: March 15, 2007
REASONS FOR JUDGMENT AND JUDGMENT: Blais, J.
APPEARANCES:
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Mr. Jeffery W. Deagle
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Mr. Tom Waller, Q.C.
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SOLICITORS OF RECORD:
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Hunter Miller LLP Regina, Saskatchewan
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Olive Waller Zinkhan & Waller Regina, Saskatchewan
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