Date: 20020204
Docket: T-690-01
Neutral citation: 2002 FCT 130
Toronto, Ontario, Monday the 4th day of February 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
LAWRENCE BADGER on his own behalf and on behalf of all
non-resident members of the STURGEON LAKE CREE NATION
also known as the STURGEON LAKE FIRST NATION
Applicant
- and -
STURGEON LAKE CREE NATION also known as the STURGEON LAKE
FIRST NATION, CLYDE GOODSWIMMER, KEVIN HAMELIN, BARBARA
GOODSWIMMER, S. LEROY KIYAWASEW, D. RICHARD KAPPO,
SHELDON SUNSHINE and JOHN DOE
Respondents
[1] Mr. Badger moves for an order granting leave to him to amend his notice of application or, in the alternative, for an order granting leave to him to file a second application for judicial review.
[2] In the existing application for judicial review, Mr. Badger challenges the decision of the Sturgeon Lake Cree Nation Electoral Officer that Mr. Badger and others were not eligible to vote in the Band Council election because they did not reside on the reserve. Mr. Badger now seeks to raise a new issue: the eligibility of some of the candidates to run for office as chief or band councillor in circumstances where they may not have been eligible under section 6.4 of the Customary Election Regulations of the Sturgeon Lake First Nation ("Regulations") because they owed money to the Band, but had not set up a repayment plan three months prior to the election as required by subsection 6.2(e) of the Regulations.
[3] The relevant chronology of events is as follows. On March 13, 2001 a list of confirmed candidates for chief and councillor was posted by the Electoral Officer and the election was held on March 23, 2001.
[4] Subsequently, notices of appeal were filed by several defeated candidates pursuant to subsections 12.1(a) and (b) of the Regulations. Those provisions are as follows:
12 ELECTION APPEALS
12.1 Grounds for Appeal of Election
Within fourteen (14) consecutive days of and including the Election Day, or in the event a Councillor or Chief is elected by acclamation, with fourteen (14) consecutive days of and including the day of the nomination meeting, any Candidate may appeal the results of an Election, By-election or Run-off Election if, on reasonable and probable grounds, they believe:
a) An error was made in the interpretation or application of the Regulations materially and directly affecting the conduct and outcome of the Election, By-election or Run-off Election;
b) A Candidate did not meet the eligibility requirements set for in section 6.4.
[5] Fourteen appeals were based on the ground that one or more candidates did not meet the eligibility requirements of section 6.4 of the Regulations.
[6] Under the Regulations any appeal is to be heard by an Election Appeal Committee and section 12.7 of the Regulations provides:
12.7 The appellant, the individual in respect of which the appeal is brought and other interested parties or their representatives may present oral or written submissions to the [Election Appeal] Committee at the meeting.
[7] The Election Appeal Committee met on April 6, 2001 and made its decision with respect to the various appeals that day. It was the decision of the Election Appeal Committee that a run-off election be held for one councillor position. Mr. Badger did not present submissions to the Election Appeal Committee. No challenge by way of judicial review was taken from the decision of the Election Appeal Committee.
[8] This proceeding for judicial review was brought on April 23, 2001. The Certificate of Electoral Officer, consisting of the record before that officer, was filed on June 20, 2001. On July 17, 2001 Mr. Badger's counsel advised that the issue of candidate eligibility might be raised by Mr. Badger at a later stage. On July 26, 2001, Mr. Badger swore the affidavit in support of the application for judicial review and said that he intended to apply to amend the notice of application to raise the issue of candidate eligibility. The motion to amend was filed on November 20, 2001.
[9] The principles governing an amendment are that generally an amendment should be allowed in the absence of prejudice, and amendments should serve the interests of justice. See: Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (F.C.A.).
[10] Applying those principles, for the following reasons, I conclude that the interests of justice are not served by allowing the amendment.
[11] First, such amendment would be contrary to rule 302 of the Federal Court Rules, 1998 ("Rules") and the policy it reflects. Rule 302 provides:
| 302. Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. |
302. Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée. |
|
[12] The rule reflects the policy of ensuring an expeditious and focussed process for challenging a single decision or order.
[13] In seeking to challenge the decision of the Electoral Officer as to the candidates' eligibility Mr. Badger does not attack a continuing electoral process. Rather, Mr. Badger seeks to attack two different decisions made by two different decision-making bodies. One decision went to the qualification of electors, the other to the qualification of candidates. One decision was made by the Electoral Officer, the other by the Election Appeal Committee.
[14] Further, the existing application for judicial review is not a generalized challenge to the election process, but rather a specific challenge that raises the question of whether the decision of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 has any application to this election conducted under the Regulations. The proposed new issue is largely factual, involving the debt status of various individuals.
[15] While the Court has a discretion to waive adherence to the requirement that an application for judicial review should be limited to a single order, I am not persuaded to exercise that discretion where different decisions by different tribunals and different issues are involved.
[16] Second, the motion to amend is brought well after the time for challenging the April 6, 2001 decision of the Election Appeal Committee confirming the election. That decision, I find, was effectively communicated to Mr. Badger and other interested persons when the Election Appeal Committee directed on April 6, 2001 that the run-off election be held for one councillor position.
[17] Third, I am not satisfied that Mr. Badger had the requisite continuing intent to raise this issue, or that he acted with diligence in raising it. The Regulations provide a code for the conduct of the First Nation's elections. Mr. Badger concedes that there were rumours circulating that some candidates were ineligible to run for office. No explanation is given as to why he did not attend the Election Appeal Committee meeting, notice of which was posted, and why he did not make oral written submissions to the Committee on this issue as he was entitled to do. No explanation is given for the delay in bringing this motion to amend after Mr. Badger received the Electoral Officer's Certificate on or about June 20, 2001 which contains the documents upon which Mr. Badger relies in raising this new issue.
[18] Further, I have not been satisfied that the respondents will not be prejudiced if the amendment is allowed. I accept that the respondents and all members of the Sturgeon Lake Cree Nation have a compelling interest in the finality of their election process. That finality is secured by the specific appeal process contained in the Regulations, and the 30 day period provided in subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 for subsequent challenges by way of judicial review.
[19] The appeal process provided for in the Regulations was engaged by fourteen unsuccessful candidates who appealed on the ground that Mr. Badger now seeks to advance. For whatever reason none of those fourteen appellants chose to proceed beyond the Election Appeal Committee.
[20] A fair period was provided for in the Regulations in which to challenge the eligibility of candidates. In my view, the interests of justice do not require an expansion of that period, and some prejudice must be inherent in now visiting upon the First Nation uncertainty as to the validity of the election on a ground other than the potential applicability of Corbiere, supra.
[21] The respondents will also face increased expense if the issues are expanded. While normally that prejudice could be compensated for by costs, here Mr. Badger swears that "I cannot afford the cost of this Judicial Review Application without assistance from others, much less the cost of a second Judicial Review Application".
[22] For these reasons, in the exercise of my discretion, I conclude that the amendment should not be allowed.
[23] The alternate relief claimed, namely the commencement of a fresh proceeding and consolidation, seeks indirectly what I have decided Mr. Badger cannot obtain directly.
[24] To the extent that leave is sought to file a second application, I am satisfied that the application is out of time because the decision on candidate eligibility was communicated either by the posting of the list of confirmed candidates on March 13, 2001 or by the decision of the Election Appeal Committee on April 6, 2001 which ordered a run-off election. Therefore, an extension of time is required.
[25] The applicable principles with respect to the granting of an extension of time were set out by the Federal Court of Appeal in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (F.C.A.) where the majority of the Court wrote at pages 277 to 278 that:
There remains, however, the questions where there is any satisfactory reason, any proper justification, for not bringing the application within the 10-day period and whether justice requires that the extension be granted.
Among the matters to be taken into account in resolving the first of these questions is whether the applicant intended within the 10-day period to bring the application and had that intention continuously thereafter. Any abandonment of that intention, any laxity or failure of the applicant to pursue it as diligently as could reasonably be expected of him could but militate strongly against his case for an extension. The length of the period for which an extension is required and whether any and what prejudice to an opposing party will result from an extension being granted are also relevant. But, in the end, whether or not the explanation justified the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered.
[26] This is in substance a requirement that an applicant for an extension of time must show due diligence.
[27] For the reasons set out above, I am not satisfied that Mr. Badger had the necessary intent to challenge the decision within the time prescribed by subsection 18.1(2) of the Federal Court Act, or that he pursued the issue with diligence. For reasons also set out above, I have been satisfied that the respondents will be prejudiced if the extension is granted.
[28] I have also considered that on applications for an extension of time the Court may also have to balance the possible strength of the case should it be allowed to proceed: see, Lancashire v. Canada (Treasury Board) (1997), 220 N.R. 54 (F.C.A).
[29] In the present case, Mr. Badger asks the Court to infer from the presence of a spreadsheet in the Electoral Officer's Certificate that purports to list candidates, whether they owed money to the band, and whether there is a repayment plan in place, and from the fact that candidates were not disqualified, that the Electoral Officer decided to ignore the Regulations. This is an inference which is difficult to draw in the absence of evidence as to the origin, date or accuracy of the spreadsheet.
[30] While the spreadsheet may raise an arguable case, I have concluded, in the exercise of my discretion, that the other factors set out above weigh against the granting of an extension of time.
[31] Therefore, Mr. Badger's motion will be dismissed. The costs of this motion are reserved to the judge who will hear the application for judicial review.
ORDER
[32] For the above reasons:
1. The applicant's motion is dismissed.
2. The costs of this motion are reserved to the hearing of the application for judicial review.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-690-01
STYLE OF CAUSE: LAWRENCE BADGER on his own behalf and on behalf of all non-resident members of the STURGEON LAKE CREE NATION also known as the STURGEON LAKE FIRST NATION
Applicant
- and -
STURGEON LAKE CREE NATION also known as the STURGEON LAKE
FIRST NATION, CLYDE GOODSWIMMER, KEVIN HAMELIN, BARBARA GOODSWIMMER, S. LEROY KIYAWASEW, D. RICHARD KAPPO,
SHELDON SUNSHINE and JOHN DOE
Respondents
DATE OF HEARING: THURSDAY, JANUARY 24, 2002
PLACE OF HEARING: CALGARY, ALBERTA
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: MONDAY, FEBRUARY 4, 2002
APPEARANCES BY: Mr. Gordon W. Harris
For the Applicant
Mr. Jeffrey Rath, and
Mr. Stephen Zaluski
For the Respondents
Page: 2
SOLICITORS OF RECORD: Duncan & Graig., LLP
Barristers & Solicitors
2800-10060 Jasper Avenue
Edmonton, Alberta
T5J 3V9
For the Applicant
Rath & Company
Barristers & Solicitors
Box 44, Site 8
R.R. # 1
Priddis, Alberta
T0L 1W0
For the Respondents
FEDERAL COURT OF CANADA
Date: 20020204
Docket: T-690-01
BETWEEN:
LAWRENCE BADGER on his own behalf and on behalf of all non-resident members of the STURGEON LAKE CREE NATION
also known as the STURGEON LAKE FIRST NATION
Applicant
- and -
STURGEON LAKE CREE NATION also known as the STURGEON LAKE
FIRST NATION, CLYDE GOODSWIMMER, KEVIN HAMELIN, BARBARA GOODSWIMMER, S. LEROY KIYAWASEW, D. RICHARD KAPPO,
SHELDON SUNSHINE and JOHN DOE
Respondents
REASONS FOR ORDER
AND ORDER