Date: 19971205
Docket: T-2327-97
BETWEEN:
ALEC CHINGEE, SHARON SOLONAS,
TANIA SOLONAS, ELIZABETH SOLONAS,
and PATRICK PRINCE in their capacity as Chief
and Councillors of the McLeod Lake Indian Band
Applicants
- and -
HARRY CHINGEE, VICTOR CHINGEE, GILBERT CHINGEE,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,
and THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons, elaborating on a decision of 1 December 1997 to have this judicial review proceeding go forward as an action, arise out of a dispute between factions of the McLeod Lake Indian Band as to the propriety of an 8 October 1997 Band election. In this proceeding the Applicants seek, among other things, a declaration as to the validity of their 8 October 1997 election as Chief and Councillors, certiorari quashing the decision of the Minister of Indian Affairs and Northern Development not to recognize the Applicants as Chief and Councillors of the Band, together with mandamus requiring the Minister to recognize them as such and finally, injunctive restraint to stop the Respondents Harry, Victor and Gilbert Chingee (to whom I will also refer as the "Band Respondents") from holding themselves out as Band Chief and Councillors.
[2] The Applicants contend that, following the recent election, they represent the Band as Chief and Councillors. The three Band Respondents say the election was invalid. A principle issue between the two factions is whether the Band's electoral system is custom based, as the Band Respondents submit, flowing from the practice and the inherent power of the Band, or whether the band elections are governed by the Indian Act, apparently the Applicants' position. However, there are also a great number of other contentious issues raised in the affidavit material, contentious issues that would make it exceedingly difficult for a judge to do justice between the parties in the event he or she were limited to affidavit material, material which appears to have been phrased by lawyers, as opposed to evidence given by witnesses in their own way and tested at trial.
[3] Counsel for the Respondents, Harry Chingee, Victor Chingee and Gilbert Chingee, who seek to have this matter proceed as an action, made a clearly convincing case, given the particular circumstances, that the presentation of evidence by affidavit would be inadequate. I now turn to some applicable law before elaborating on my conclusion.
SOME APPLICABLE LAW
[4] Section 18.4(2) of the Federal Court Act, a permissive provision, provides that:
| The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action. |
It is a relatively new section of the Federal Court Act, which came into force 1 February 1992. There are only a limited number of cases dealing with this section, however, they offer substantial guidance.
[5] The earliest reported case, dealing with this section, of which I am aware, is Vancouver Island Peace Society v. Canada (1992), 53 F.T.R. 300, a 14 April 1992 decision of Mr. Justice Strayer, as he then was. However, the real starting point in any consideration of section 18.4(2) is Prince Edward Island Potato Board v. Minister of Agriculture for Canada (1993), 56 F.T.R. 150, a decision of Mr. Justice Muldoon dated 9 July 1992.
[6] In the P.E.I. Potato Board case the Minister of Agriculture wished conversion of the proceeding into an action, giving as a reason the complexity of scientific considerations which would require expert explanation, with the possibility of experts in conflict. The question was whether the Court would be able to reach an informed conclusion if the matter were dealt with by judicial review and affidavit evidence. Mr. Justice Muldoon believed that the judicial review provisions in the Federal Court Act ought to be given an opportunity to work as intended, that is to allow matters appropriate for judicial review matters to be heard quickly and summarily. With that focus in mind, he was of the view that the procedures for judicial review set out in the Federal Court Act "... should not be departed from except in the clearest of circumstances":
| "[2] Section 18.4 of the Federal Court Act makes it clear that, as a general rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matters be heard and determined "without delay and in a summary way". As an exception to the general rule, provision is made in s. 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances." (page 152) |
[7] The "clearest of circumstances" test was considered and approved by the Federal Court of Appeal in MacInnis v. Canada (1994), 166 N.R. 57. There the Court of Appeal reinforced the approach taken by Mr. Justice Muldoon in the P.E.I. Potato Board decision by noting that the intention of Parliament was that judicial review be a speedy remedy and that section 18.4(2) should only come into play where facts might not be satisfactorily established or weighed through the use of affidavit evidence:
| "[9] It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using s. 18.4(2) of the Act. One should not lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible. The "clearest of circumstances", to use the words of Muldoon, J., where that subsection may be used, is where there is a need for viva voce evidence, either to assess demeanour and credibility of witnesses or to allow the court to have a full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial (See Canadian Pacific Ltd. v. Matsqui Indian Band et al. (1993), 153 N.R. 307, at p. 311 (F.C.A.); Edwards v. Canada (Minister of Agriculture) (1992), 53 F.T.R. 265 (T.D.), at p. 267, Pinard, J.) The decision of this court in Bayer AG et al. v. Canada (Minister of National Health and Welfare) (1993), 163 N.R. 183 (F.C.A.) where Mahoney, J.A., to some extent commented adversely on a decision made by Rouleau, J., in the same file (1993), 66 F.T.R. 137 (T.D.)), is a recent illustration of the reluctance of the court to proceed by way of an action rather than by way of an application." (page 60) |
Important in this passage is the concept that subsection 18.4(2) of the Federal Court Act may be used where viva voce evidence is needed so that the Court may assess the demeanour and credibility of witnesses or obtain a full grasp of the whole of the evidence through the full panoply of trial. But more important is that the Court of Appeal in MacInnis set out what is now the established test: it is not whether viva voce evidence at a trial might be superior, but whether affidavit evidence, on judicial review, would be inadequate:
| "... the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior." (page 6) |
While the test in MacInnis is set out in the context of resolving conflicting expert affidavit material, it has a parallel in the present instance. At least some of the affidavit material deals with the custom of the McLeod Lake Indian Band. Those members of the Band with information as to the custom of the Band are in a certain sense experts: it will be important for a judge to assess their demeanour and credibility. However, the same test, that affidavit evidence must be demonstrably inadequate, also applies to the affidavits of witnesses who are not experts. Returning to the MacInnis case, the Court of Appeal pointed out that "...it is important to remember the true nature of the questions to be answered by the Court in judicial review proceedings and to consider the adequacy of affidavit evidence in answering those questions." (loc.cit.). In making this last comment the Court of Appeal referred to Vancouver Island Peace Society, to which I will now return.
[8] In Vancouver Island Peace Society (supra) Mr. Justice Strayer makes a point pertinent to the present application. In judicially reviewing a decision, the Court is not sitting as an appellate body, but in review to determine whether the official or agency making the decision has correctly interpreted the law and whether the decision has been taken on the basis of relevant facts and for relevant reasons:
| "[7] In determining whether an official or agency has acted in accordance with the law in reaching the decision in question, the court can consider whether the official or agency has correctly interpreted the law and whether the decision has been taken on the basis of facts and reasons relevant to the purpose for which the authority was given to make such a decision. But within that permissible range, the original decision-maker has a right to make a decision which the court cannot reverse even if it perchance does not agree with such decision." (pages 303-304) |
This observation is relevant in the present instance for a substantial portion of the affidavit material filed is composed of contradictory facts, some pertinent, others completely irrelevant.
[9] The necessity for a sound factual underpinning was emphasized by Mr. Justice Pinard in Edwards v. Canada (1992), 53 F.T.R. 265. In that case, the applicant challenged the Minister of Agriculture's gypsy moth spraying program, a challenge which would raise many different issues of fact and law, which would have required extensive cross-examination on many affidavits, giving rise to a situation in which the demeanour and credibility of witnesses would be best assessed by the Court by way of viva voce evidence, as factual underpinnings were a critical issue. He summed up these issues by saying:
| "[9] In my view, most of these issues cannot be determined on the basis of mere affidavit evidence without the benefit of discovery and cross-examination. Again, this is clearly a case where this court should have the benefit of assessing the demeanour and credibility of witnesses under cross-examination, particularly the numerous experts." (page 269) |
[10] Of course, in determining whether an application ought to be turned into an action, with the real likelihood of the parties being enveloped in the full panoply of a trial, I must consider whether a trial, with its inevitable delays, is called for because evidence by affidavit, in a quicker judicial review proceeding, would be inadequate.
[11] The final point that I must keep in mind is that section 18.4(2) of the Federal Court Act does not limit my discretion as to the grounds to be considered in deciding whether to allow an application to be converted into an action:
| "... this court's judgment in MacInnis v. Canada (Attorney General) et al., [1994] 2 F.C. 464; 166 N.R. 57 (F.C.A.), dealt with different circumstances and should not be read as limiting motions judge's discretion in cases where conversion is sought on grounds other than alleged evidentiary requirements. In our view, s. 18.4(2) places no limits on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action. The desirability of facilitating access to justice and avoiding unnecessary cost and delay is certainly one of them." (Drapeau v. Canada (Minister of National Defence) (1995), 179 N.R. 398 at 399 (F.C.A.)). |
ANALYSIS
[12] In the present instance, the judge hearing this proceeding is asked to determine, among other matters, the validity of the election process and whether the decision of the Minister of Indian Affairs and Northern Development, not to recognize the election results, was properly arrived at, given all the circumstances. This consideration is not in the sense of substituting the Court's decision for the decisions of the Band's electoral officer, Peter Prince, or the decision of the Minister, or of the two sets of Chiefs and Councillors. Rather, having regard to all of the circumstances, it is for the judge to determine if those persons, in exercising their discretion and in reaching their decisions, acted in good faith in a reasonable and proper manner, supported by relevant evidence, without erring as to the applicable law.
[13] In order to review the decision of the Band's electoral officer, Mr. Peter Prince, and of the Crown, the judge hearing the matter will have to examine the Band's practice as to elections. That the affidavit material filed and the further substantial material sought to be filed is contradictory is not a factor, in itself, in the decision to convert this application into an action. Affidavit material produced by opposing parties is usually, but its very nature, contradictory. In most instances, contradictions can be reduced to manageable proportions to cross-examination on affidavits. But I seriously question whether this usual approach, evidence by affidavit and cross-examination could, in this instance, give a judge an adequate knowledge of the practice and customs of the McLeod Lake Indian Band as to the choosing of its Chief and Councillors.
[14] The Applicants' submit that elections for Chief and Councillors of the McLeod Lake Indian Band are held every two years, as provided for under the Indian Act. The Respondent Band members say the Chief and Council are by custom chosen from representative families within the Band. Now certainly the customs of any particular band are not within the expertise of the Court. In the case of judicial review a judge would have to weigh affidavits without the benefit of examination for discovery or oral cross-examination to narrow the proceedings to a manageable, coherent and relevant whole. Absent a trial a judge would have to make an assessment without being able to consider the demeanour, credibility and substance of witnesses both in giving their evidence and under fair and vigorous cross-examination. There are a number of issues in the present instance which might, in my view, only be adequately tested by the trial procedure.
[15] I do not number among these issues all of the examples submitted by counsel for the Respondent Band members as requiring exploration through the trial procedure. Certainly the allegations of bribery by Chief Harry Chingee, sworn to in the 10 November 1997 affidavit of the Applicant, Elizabeth Solonas, and attached to the affidavit of Christopher Harvey, filed 12 November 1997, are serious enough to warrant testing at trial, if they were at all relevant. In the context of this judicial review proceeding allegations of bribery are, and counsel for the Applicant agreed to this point in speaking to the motion, totally irrelevant. It is improper that they were included in the Applicants' material in support of judicial review: it is unfortunate that they were not withdrawn. Other allegations, made by and on behalf of the Applicants, such as theft of Band property by Chief Harry Chingee, that a deponent of an affidavit filed by the Band Respondents is "disoriented", and that Chief Harry Chingee engaged in false bookkeeping and shenanigans with the Band's social assistance fund, similarly fall into this category of charges that are irrelevant in the context of the questions at issue. However, in another context these allegations have relevance for they show an animosity, principally toward the Band Respondents, which might well colour relevant testimony. By this measure much of the affidavit evidence could well be inadequate and therefore the evidence ought to be tested by the trial procedure. However, there are a number of issues which might, in my view, only be adequately tested by the trial procedure.
[16] The first of these issues is whether the electoral officer ought to have proceeded with an election called by a suspect Band Council of three, two of whom purportedly having been disqualified for missing previous Band meetings. Here a subsidiary issue arises, for a Band Councillor may not, subject to certain conditions, be absent for more than three consecutive Band Council meetings (section 3(2) of the Indian Band Council Procedure Regulations): this is perhaps consistent with McLeod Lake Indian Band Council procedure being governed by the Indian Act, but one wonders whether it is consistent with the Band's custom. It is important that a judge observe the opposing witnesses on such a point: mere cross-examination on affidavits would handicap a judge in coming to a just conclusion.
[17] Second, as to the Band Council meeting itself, the then Chief by custom, Harry Chingee, says not only was the Band meeting apparently called by disqualified Councillors, but that he, not having received notice of the meeting, did not attend, did not authorize the placing of his name on the ballot and in any event, did not sign any resolutions arising out of that meeting. The Applicants present evidence to the contrary, including as to the nomination of Chief Harry Chingee to stand as Chief in the upcoming election and his acceptance of that nomination. Given that some of the affidavit evidence exhibits a fair degree of irrelevant animosity, the affidavits are suspect and as such inadequate to determine the real issues.
[18] Third, the Applicants make assertions against McLeod Lake Indian Band custom as a basis for election, including affidavit evidence as to such sworn by the Applicant, Elizabeth Solonas. This is in the face of a Band resolution of 5 June 1996, signed by Elizabeth Solonas as Councillor, indicating that the Band formally sets down, as its band custom election procedures, that it will adopt its traditional position that there will be a "... Headman who will retain the position as Chief until such time as he relinquishes the position... " and that Councillors will be drawn from elders of each family root of the McLeod Lake Indian Band. This material goes beyond contentious disagreement which might be resolved through affidavit evidence. It calls for examination for discovery, full evidence in chief and proper cross-examination of witnesses in a trial setting.
[19] The final example of the inadequacy of affidavit evidence upon which I will touch is the degree of sophistication and literacy of the McLeod Lake Indian Band. Certainly, some of the Band members indicate, through their affidavits, a substantial degree of sophistication, accomplishment and measured control in their views. In contrast the Respondent, Chief Harry Chingee, deposes that his people are not well educated and thus all "... including myself, should be allowed to speak to the Judge directly, and tell our evidence in our own words." (paragraph 6 of the affidavit sworn 14 November 1997). This is one of the most telling points, as to the inadequacy of affidavit evidence in this instance. Affidavits carefully drafted by third parties cannot be a substituted for viva voce evidence, including evidence of custom, evidence that ought to be given in full and then subject to proper cross-examination.
CONCLUSION
[20] As a result of considering the pleadings to date, the affidavit material filed and sought to be filed and of having the benefit of the submissions of both counsel, I have concluded that a proper review of the issues surrounding the election and the non-acceptance by the Minister of Indian Affairs and Northern Development of the purportedly elected Chief of the McLeod Lake Indian Band, Chief Alec Chingee and his Council, on the one hand, or of the failure of the electoral process to supplant Chief Harry Chingee and his Council on the other hand, cannot be accomplished merely on affidavit evidence supplemented by cross-examination on affidavits. The issues at the core of this proceeding ought to be explored on examination for discovery, a procedure which may well save time for all concerned. Witnesses should give their testimony in their own words. Witnesses, particularly those showing a tendency to give evidence exhibiting irrelevant animosities, should give their evidence and be properly cross-examined in a trial setting.
[21] As to any delay, this matter was commenced 29 October 1997. The affairs of the McLeod Lake Indian Band are to some extent being looked after by outside auditors, albeit at a cost. The parties have been offered a four day block of time at Vancouver, or a five day block of time in Prince George, in May of 1998. Heard as judicial review, the matter would take less time than as an action, however baring cancellations of trials already set, it is doubtful that this matter would be heard much earlier as judicial review. Delay is not a substantial factor.
[22] A proper review in this instance will require the giving of evidence in a setting in which the judge can view demeanour, substance and credibility of witnesses, particularly of those giving evidence as to Band custom, weigh the evidence and determine the facts to be satisfactorily established. Thus I have concluded that affidavit evidence would, in this instance be inadequate.
[23] As a result of this outcome it is appropriate to give directions. The style of cause will now style the parties as Plaintiffs and Defendants. The Plaintiffs are allowed 15 days, from the date of these reasons, to file and serve a Statement of Claim on the solicitors for the Defendants. The Defendants shall file their defences within 21 days of service of the Statement of Claim. Any replies to the defences shall be filed within 7 days of service of each of the defences. Production of documents shall take place in not less than 30 days after filing of defences. Further directions may be obtained from the Court in view of the accelerated nature of the proceedings. Costs shall be in the cause.
[24] I thank counsel for their good and interesting presentations.
(Sgd.) "John A. Hargrave"
Prothonotary
December 5, 1997
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: December 1, 1997
COURT NO.: T-2327-97
STYLE OF CAUSE: ALEC CHINGEE, et al.
v.
HARRY CHINGEE, et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated December 5, 1997
APPEARANCES:
Mr. Chris Harvey for Applicants
Mr. Stan Ashcroft for Respondents
Harry, Victor and Gilbert Chingee
Mr. Gerald Donegan for Respondent
| Minister of Indian Affairs and Norther Development |
SOLICITORS OF RECORD:
Russell & DuMoulin for Applicants
Ganapathi, Ashcroft & Company for Respondents
Harry, Victor & Gilbert Chingee
George Thompson
Deputy Attorney General for Respondents
| of Canada Minister of Indian Affairs and Northern Development |