Date: 20030612
Docket: T-1017-02
Citation: 2003 FCT 737
OTTAWA, ONTARIO, this 12th day of June, 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
CLARENCE OKEYMOW
Applicant
and
SAMSON CREE NATION and
THERESA BULL
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the Chairman of the Samson Election Appeal Board's refusal to permit the appeal of Clarence Okeymow (the "Applicant") on June 7, 2002.
Facts
[2] The Applicant is a member of the Samson Cree Nation (the "Band") and is eligible to run for office. He was a candidate in the Council Elections of the Band held on May 26, 2002.
[3] On May 27, 2002, the Applicant was declared an unofficial successful candidate for the 11th council position. There were several recounts in the days that followed. On June 2, 2002, after the third recount, the Applicant was tied with two other candidates for the 12th council position.
[4] After a final recount, on June 4, 2002, one of the other tied candidates was declared elected to the 12th council position. The Applicant takes the position that discrepancies in the enforcement of the Samson Cree Nation Election Law ("Election Law") caused his defeat.
[5] The Applicant prepared a letter of appeal to the Samson Election Appeal Board ("Appeal Board"). The unsigned letter was dated June 7, 2002. On that date, the Applicant met Theresa Bull, the Chairman of the Appeal Board, and informed her that he wished to appeal the election result. According to the Applicant, Ms. Bull informed him that he could not appeal the election result, since his "seven days were up."
[6] He makes this application for an order of mandamus compelling the Chairman of the Appeal Board to accept and process his appeal pursuant to the provisions of the Election Law.
Arguments
Applicant
[7] The Applicant submits that the Chairman of the Appeal Board derives her authority from her appointment by Chief and Council and that, for the purpose of this application, she was a "federal board, commission or other tribunal" within the meaning of the section 2 of the Federal Court Act, R.S.C. 1985, c. F-7.
[8] The Applicant submits that, in refusing to accept his appeal on June 7, 2002, the Chairman, Theresa Bull, acted independently of the Appeal Board and therefore exceeded her jurisdiction. In the alternative, the Applicant submits that the Chairman's refusal of the Applicant's appeal was patently unreasonable.
[9] The Applicant submits that a purposive interpretation be applied to the words, "within seven days from the date of any election in section 82 of the Election Law." The Applicant argues that a literal interpretation deprives him of his substantive right to an appeal, since the election results were not known until after the seven day limitation period expired. Such a result, in the Applicant's submission, is absurd.
Respondent
[10] The Respondents take no position with regard to whether the Chairman of the Appeal Board had the authority to inform the Applicant that he was out of time. The Band submits that, since the Applicant did not serve the Chairman with his appeal letter, the Chairman could not have decided that the limitation period had expired. Hence, no decision was made by the Chairman that this Court can review.
[11] In the alternative, the Respondents submit that, had the appeal letter been served on the Chairman on June 7, 2002, it would not have been served within the limitation period stipulated in the Election Law. The Respondents argue that the words "date of any election" or "date of the election" are properly interpreted as meaning the date on which the ballots are cast.
[12] The Respondents agree that a purposive approach should be applied to the words in question. The approach, however, permits the rejection of an interpretation of a phrase only if there are two conflicting interpretations and one would lead to an absurdity. It is not an absurd result if the time for bringing an appeal from an election begins to run before the final result of the election is known if that is what the drafters of the law intended, and such an interpretation does not deprive the Applicant of any rights on the facts of this case. The Applicant knew of the irregularities he wished to complain about in sufficient time to make an appeal within seven days of the election day. He waited until he knew he had not been elected before he decided to appeal. The Respondents rely on Ray v. Nateweyes, [1998] S.J. No. 50 (Sask. Q.B.) in support of their interpretation of the Election Law and argue that, in the context of the whole Election Law, the drafters clearly understood and intended the words "the date of any election" and "the date of the election" to mean the date on which the ballots were cast, as opposed to "the final determination of the election" or "the outcome of the election," which are specified elsewhere in the Election Law. The Respondents point to the fact that several other procedures regulated by the Election Law depend on "the date of the election" being the date the ballots are cast, and that any other interpretation of that phrase would lead to an absurd result.
Issues:
[13] 1. Is the Chairman of the Appeal Board a "federal board, commission or other tribunal"?
2. What is the applicable standard of review?
3. Did the Chairman exceed her jurisdiction?
4. Did the Chairman err in law by telling the applicant that his appeal was out of time?
Relevant Provisions
[14] Samson Cree Nation Election Law
ELECTION APPEAL BOARD:
78. At least fourteen (14) consecutive days prior to any nomination meeting, the Samson Chief and Council shall, by its resolution, appoint three (3) persons who shall be known as the Samson Election Appeal Board.
CHAIRMAN
79. In passing its resolution, the Samson Chief and Council shall designate one of the members of the Samson Election Appeal Board as Chairman.
QUALIFICATIONS FOR MEMBERS:
80. All person appointed to the Samson Election Appeal Board shall be of the full age of twenty-five (25) years, non-Samson members and person [sic] of good character and reputation.
COMMENCING AN APPEAL:
82. Within seven (7) days from the date of any election, any candidate in the election who has reasonable grounds to believe:
a) there was a corrupt practice with respect to the election;
b) that a person nominated to be a candidate in the election was ineligible to be a candidate; or
c) that there was any other violation of these customs which may have affected the result of the election
may commence an appeal by serving upon the Chairman of the Samson Elections Appeal Board, a letter setting out the particulars of his complaint and the grounds thereof.
83. Should the appeal request a recount, the recount shall be conducted immediately upon final tabulation as required in Paragraph 60 to 63; however, the person requesting such recount shall pay the required fee of Two Hundred Dollars ($200.00) for appeals.
84. Immediately upon the receipt of a letter, with the required fee, commencing an appeal, the Chairman of the Samson Election Appeal Board shall notify the Electoral Supervisor that an appeal has been commenced.
85. Upon the receipt of such notification, the Electoral Supervisor must immediately forward to the Chairman of the Samson Election Appeal Board, the envelope containing all of the ballots, the list of Eligible Voters, and such other material as is requested by the Chairman.
86. Within fourteen (14) days from the date upon which an appeal was commended, the Samson Election Appeal Board shall meet and make a determination as to the validity of the complaint.
87. The Samson Election Appeal Board may:
a) declare that the complaint is an invalid complaint and dismiss the appeal;
b) declare that he complaint is a valid complaint as described in paragraph 82(c) but dismiss the appeal because the violation of custom was not one which would have affected the result of the election; or
c) declare the complaint to be a valid complaint and order that a new election be held within two (2) weeks of the date of the Board's determination.
88. In the event that a new election is ordered, that election shall be held in accordance with the customs described herein, subject however, to such further requirements, conditions, or directions as may be imposed by the Board in order to avoid a repetition of the violation complained of.
89. Upon making its determination, the Board shall provide the Samson Chief and Council, the Electoral Supervisor and the complainant with written reasons for its decision, including the particulars of the evidence relied upon.
90. The decision of the Samson Election Appeal Board is final and binding.
SERVICE UPON APPEAL BOARD:
103. Any documents required to be served upon the Chairman of the Samson Election Appeal Board, shall be served personally or by double registered mail.
Analysis
Is there a "decision" to review?
[15] A fundamental issue in this application is whether the Chairman of the Appeal Board, Ms. Theresa Bull, actually made a decision or acted in some manner that this Court can review, or whether the decision not to proceed with an appeal was made by the Applicant himself.
[16] The only evidence before me on this issue is found in paragraphs 15 and 16 of the Applicant's affidavit:
15. On June 7, 2002 I met Theresa Bull outside Peace Hills Trust at Hobbema, Alberta. At that time I had the unsigned copy of the letter in my possession and told Theresa Bull, who confirmed to me that she was a member of the Appeal Board, that I wished to appal the result of the election. At that time she told me I could not do so as my "seven days were up." I am advised by my scrutineer, Dorothy Simon, and do verily believe that comment to be a reference to section 82(c) of the Samson Cree Nation Election Law mentioned in my letter of appeal to Charles Wood, a copy of which is attached hereto and marked as Exhibit "B" to this my Affidavit. Although the election was held on May 27, 2002, the result of my candidacy was not decided until June 4, 2002.
16. As a result of the statement of Theresa Bull that my "seen days were up" I sought legal advice.
[17] Service under the Election Law has to be made in accordance with paragraph 103 which allows both personal service and service by double registered mail.
[18] There is no evidence before me that Ms. Bull refused to accept the letter of appeal on June 7, 2002, or that the Applicant attempted service in any way. According to his own evidence he merely told Ms. Bull that he "wished to appeal the result of the election" and he was told he could not do so because his "seven days were up."
[19] The account given in paragraphs 15 and 16 of the Applicant's affidavit is capable of various interpretations. One of them is that Ms. Bull refused to accept service of the letter of appeal. Another is that she merely gave the Applicant her view of what the Election Law allowed and he decided to seek legal advice rather than attempt to serve her at that time.
[20] In the context of the exchange that took place between the Applicant and Ms. Bull I do not think it is realistic to expect that either party would be alive to the formalities of legal service.
[21] In an application such as the present one the onus is upon the Applicant to convince the Court that there is a "decision or order of a federal board, commission or other tribunal" for the Court to review. Mountainbell Co. V. W.T.C. Air Freight (H.K.) Ltd. (1990), 128 N.R. 75 (F.C.A.) appears to be authority for the proposition that (in accordance with the present Federal Court Rule 363) the Applicant must file an affidavit to establish facts that do not appear on the court record and that an application can be summarily dismissed if the facts on the record do not provide a basis for allowing it.
[22] Both the Band and Ms. Bull have chosen not to refute the evidence offered by the Applicant in his affidavit. Hence, on the basis of what little evidence I have before me, I feel that the most meaningful interpretation of the exchange was that, after hearing he wished to make an appeal, Ms. Bull informed the Applicant that the appeal process was not available to him because the seven days had lapsed. This was, in effect, a decision by Ms. Bull that the Applicant could not invoke the appeal process under the Election Law, and it is this decision by Ms. Bull that this Court is asked to review.
Is the Chairman's decision a the decision of a "federal board, commission or other tribunal"?
In Parisier v. Ocean Man First Nation, [1996] F.C.J. No. 129 (QL) Gibson J. distinguished between custom bands, who act pursuant to their Band Constitution, and bands that derive their authority from the Indian Act, R.S.C. 1985, c. I-2. He found that an Electoral Officer appointed by a Band Council pursuant to the Band Constitution was a "federal board, commission or other tribunal." He wrote as follows at paragraph 6:
It is well-settled law that for the purposes of applications such as this, a Band Council and persons purporting to exercise authority over members of an Indian Band who act pursuant to provisions of the Indian Act constitute a "federal board, commission or other tribunal" within the meaning of that term in section 2 of the Federal Court Act. I am satisfied that, by analogy, an Electoral Officer appointed by such a Band Council pursuant to the Band Constitution is equally a "federal board, commission or other tribunal."
[24] The Samson Cree Nation is a custom band. Section 78 of the Election Law stipulates that the Samson Chief and Council are responsible for appointing the three-member Appeal Board. Section 79 states that they are also responsible for designating one of the members as the Chairman. By analogy to Parisier, supra, the chairman of the Appeal Board, in this context, was a "federal board, commission or other tribunal," since she represented a body "purporting to exercise authority over members of an Indian Band" pursuant to the Band Constitution. The Respondents do not offer any argument or authority to suggest otherwise.
The applicable standard of review
[25] The Supreme Court of Canada has enunciated a pragmatic and functional approach to standard of review analysis in the context of administrative decisions. See Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19. There are four main factors to be taken into account: a) whether there is a privative clause; b) the expertise of the board; c) the purpose of the Act as a whole and the provision in particular; and d) the nature of the problem. A pragmatic and functional analysis of the decision before me leads to conclude that the applicable standard is correctness.
Privative Clause
[26] Section 90 of the Election Law states that the decision of the Appeal Board is final and binding. While this is not a particularly strongly worded privative clause, it nevertheless demonstrates that the Band intends a limited avenue of review. This suggests more deference.
Expertise
[27] In Grand Rapids First Nation v. Nasikapow, [2000] F.C.J. No. 1896, Muldoon J. analysed this factor within the context of the decision of a band's electoral officer. At paragraph 62, he wrote that:
The electoral officer is appointed during a public meeting and has no particular expertise. Therefore, lower deference should and can be shown towards her decisions.
[28] Section 80 of the Election Law requires only that persons appointed be 25 years of age, non-Samson members and of good character and reputation. There is no requirement that they have any particular expertise. This suggests less deference.
Purpose of the Act
[29] In Pushpanathan, supra, Bastarache J. explained at paragraph 36 that more deference will be owed when the Act requires "the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties," rather than provisions that establish rights as between parties. In other words, the Court should pay more deference to a polycentric decision.
[30] In Grand Rapids, supra, Muldoon J. at paragraph 63, interpreted this factor as requiring an assessment of whether "No application of open-textured legal principles infuses the election policy," requiring more deference.
[31] The Band has codified its customs and traditions with regard to the selection of a Chief and Council in its Election Law. In other words, it has created provisions for the administrative regulation of its election procedures. It therefore does not appear that the purpose of the Election Law requires the careful balancing of a variety of interests. Nor has the Band, in the words of Muldoon J., infused open-textured legal principles into the provisions. This analysis suggests less deference.
Nature of the problem
[32] The Applicant asserts that the Chairman of the Appeals Board has exceeded her jurisdiction. Alternatively, the Applicant implies that the Chairman committed an error of law by misinterpreting the Election Law. Both errors of jurisdiction and law require a correctness standard.
[33] My overall conclusion is that these factors suggest that a correctness standard should be applied to the Chairman's decision that the appeal process could not be invoked by the Applicant. While a privative clause exists, which might raise the standard to reasonableness simpliciter, its broad, undefined wording does not, in my view, sufficiently counter the three other factors, all of which strongly suggest the standard of correctness. I note as well that Muldoon J. in Grand Rapids, supra, also concluded that a correctness standard should be applied in that case.
Jurisdiction
[34] In deciding that the appeal process was not available to the Applicant, did the Chairman exceed her jurisdiction? I believe that she did. The Election law reserves to the Appeal Board as a whole all decisions concerning the right of appeal. The Chairman is intended merely to receive the appeal notice. It is then the Chairman's obligation to bring the matter before the full Appeal Board. The Chairman should not make a decision as to whether an appeal is available on any set of facts. She should bring the matter before the Appeal Board. This was not a decision for Ms. Bull to make but, in making it, did she not deprive the Applicant of any rights if, in fact, his appeal was out of time?
Was the Applicant's appeal out of time?
[35] At the heart of this application is the proper interpretation of section 82 of the Election Law. The Applicant urges a purposive approach to the interpretation of "seven days from the date of any election," such that the seven days should not begin to run until after the election results have been declared. He argues that an interpretation that requires an appellant to serve an appeal before the results are known defeats the purpose of the appeal mechanism and is absurd. The Respondent, on the other hand, while agreeing that a purposive approach is appropriate, argues that the words "the date of any election" are clear in the context of the Election Law as a whole, since the drafters distinguished between "the date of any" or "the election" and the "outcome" or "final determination of the election."
[36] I agree with both the Applicant and Respondent that a purposive approach should be taken. In Driedger on the Construction of Statutes, Toronto: Butterworths, 1994, we are told that, in order to allow a purposive approach, the "ordinary meaning of a provision may be rejected in favour of an interpretation more consistent with the purpose if the preferred interpretation is one the words are capable of bearing." With regard to the presumption against absurdity, the Driedger text states the following at page 86:
Where the words of a legislative text allow for more than one interpretation, avoiding absurd consequences is a good reason to prefer one interpretation over the other. Even where the words are clear, the ordinary meaning may be rejected if it would lead to an absurdity.
[37] In this case, a purposive analysis of section 82 of the Election Law requires a determination of what possible interpretations the text can reasonably bear and the rejection of any absurd result. The two interpretations suggested by the parties (the date the votes are cast and the date the results are declared) are both interpretations the words can reasonably bear. While the plain meaning of "date of any election" suggests the first interpretation, section 82 could also encompass the entire election process, so that time would not begin to run until the results are declared.
[38] In Regina ex rel. Fraser v. Tuckey, [1975] W.W.R. 191 and Ray v. Nateweyes, [1998] S.J. No. 50, the Saskatchewan Court of Queen's Bench debated whether the word "election" meant the polling day, or included the process up to the count. Both of those cases, however, dealt with limitation periods of more than one month. In the case at bar, the issue is whether the Election Law should be interpreted to require a candidate for Band Council to appeal a corrupt practice or violation that may not have come to light, given the short limitation period. In my view, such an interpretation would be contrary to the purpose of the provision, which is to permit defeated candidates who become aware of irregularities a reasonable mechanism of review. It would be absurd to require a candidate to file an appeal in the eventuality that he may lose, especially in this context where the Applicant appeared to be winning. As a result, "seven days from the date of any election" must be taken to mean "seven days from the date of the results of any election." While I realize that the specificity of other provisions in the Election Law might lead one to conclude that "the date of any election" was meant to be limited to the polling date, I cannot agree that this was the intention in section 82, because such an interpretation could lead to absurd results.
[39] I note the Respondents' argument that other provisions of the Election Law require acceptance of the Respondents' interpretation of "the date of any election" in order to prevent other absurd results. The Band points to sections 6, 12, 35, 36, 37 and 55 of the Election Law in order to demonstrate that "date of the election" can only mean the date the ballots are cast. For example, section 12 reads "Any candidate may withdraw at any time up to forty-eight (48) hours before the date of the election by filing with the Electoral Supervisor, a notice in writing of his intention to do so." The Band argues that any date other than the voting date would render this section impractical.
[40] Despite the fact that several provisions that use the words "date of the election" necessarily refer to the polling date, to interpret the limitation period of section 82 as beginning to run from the date of the results does not impose that same interpretation on these other provisions of the Election Law. While consistency is certainly important, context and logic are equally important. I do not think that the Applicant's proposed interpretation of section 82 would lead to absurd interpretations of other provisions, in which "the date of the election" should purposively be interpreted to mean the date the ballots are cast.
Conclusion
[41] For the above reasons, this application shall be allowed.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The decision of Ms. Theresa Bull, the Chairman of the Election Appeal Board not to permit the Applicant to file an appeal under the Samson Cree Nation Election Law is set aside;
2. The Applicant shall have five days from the date of this Order to serve and perfect his appeal under the Samson Cree Nation Election Law;
3. In considering the Applicant's appeal under the Samson Cree Nation Election Law the Samson Election Appeal Board shall interpret the words "[w]ithin seven (7) days from the date of any election" in section 82 of the Election law as meaning within seven (7) days of the result of the election to which the corrupt practice, the ineligibility or other violation relates.
4. The Applicant is awarded costs of this application.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1017-02
STYLE OF CAUSE: Clarence Okeymow v. Samson Cree Nation and
Theresa Bull
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 8, 2003
DATED: June 12, 2003
APPEARANCES:
Mr. Terence Glancy For Applicant
Mr. David Rolf For Respondent, Samson Cree Nation
Ms. Deborah Hanly For Respondent, Theresa Bull
SOLICITORS OF RECORD:
Royal, McCrum, Duckett & Glancy For Applicant
Edmonton, Alberta
Parlee McLaws LLP For Respondent, Samson Cree
Edmonton, Alberta Nation
Hanly Law Office For Respondent, Theresa Bull
Sylvan Lake, Alberta