Date: 19991210
Docket: T-1943-98
OTTAWA, Ontario, this 10th day of December, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
GORDON WOLFE
Applicant
- and -
JOHN ERMINESKIN
Respondent
- and -
THE CHIEF AND COUNCIL OF THE ERMINESKIN FIRST NATION
Intervenor
UPON application by the applicant for:
| i) an Order quo warranto against the respondent, John Ermineskin, who was elected councillor of the Council of the Ermineskin First Nation in an election held on September 16, 1998, or |
| ii) in the alternative, an order to compel the returning officer for the election held on September 16, 1998, or the Chief and Council of the Ermineskin First Nation, or any other body the Court may deem proper, to declare that John Ermineskin has rendered himself "guilty of corrupt practice in connection with Ermineskin Tribal Affairs, dishonesty, or malfeasance" within the meaning of paragraph 2.(a)(iii) of by-law no. E86-01, Regulations Governing Ermineskin Tribe No. 138, Tribal Election Custom, ("the Tribal Election Custom Regulations") and that the respondent was disqualified from nomination and subsequent election; |
UPON hearing counsel for the applicant, for the respondent and for the intervenor the Chief and Council of the Ermineskin First Nation in Edmonton, Alberta, on November 26, 1999, when decision was reserved;
UPON consideration of submissions then made, the Court concluding that discretion to grant the exceptional relief claimed should not be exercised since
| i) the applicant's standing to seek quo warranto is not here established for any public interest in resolution of the issue the applicant seeks to have resolved, i.e., the qualifications of the respondent for elective office as councillor, could have been addressed through procedures under the Tribal Election Custom Regulations and there is no evidence the applicant sought to have those procedures followed after the election on September 16, 1998; |
| ii) that no public duty owed to the applicant is here established that is enforceable by an order in the nature of mandamus, directed to |
| a) the returning officer of the Ermineskin First Nation under the Tribal Election Custom Regulations, or to |
| b) the Chief and Council of the Ermineskin First Nation. |
UPON the Court noting, when this matter was heard that the applicant and respondent each requested costs of this proceeding if successful in their respective submissions, and no submissions as to costs were made by the intervenor;
O R D E R
IT IS ORDERED THAT:
| 1. The application is dismissed. |
| 2. The respondent's costs shall be paid by the applicant, on the normal party and party basis, in an amount those parties may agree upon, or failing agreement, as may be taxed under Tariff B, column III of the Federal Court Rules, 1998. |
(signed) W. Andrew MacKay
JUDGE
Date: 19991210
Docket: T-1943-98
BETWEEN:
GORDON WOLFE
Applicant
- and -
JOHN ERMINESKIN
Respondent
- and -
THE CHIEF AND COUNCIL OF THE ERMINESKIN FIRST NATION
Intervenor
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act (the "Act") arising, it is said, as a result of decisions of the returning officer of the Ermineskin First Nation and others, made on the day before, and in relation to, an election of that First Nation held on September 16, 1998.
[2] The applicant seeks relief pursuant to s. 18 of the Act in the form of an order of quo warranto directed to the respondent, John Ermineskin, who was elected as a councillor of the Ermineskin First Nation in the election of September 1998. In the alternative, the applicant seeks an order, in the nature of mandamus, compelling the returning officer, or the Chief and Council of the Ermineskin First Nation, intervenor in this proceeding, or any other body the Court may deem proper, to declare that the respondent has rendered himself "guilty of corrupt practice in connection with Ermineskin Tribal Affairs, dishonesty, or malfeasance", within the meaning of section 2(a)(iii) of by-law no. E86-01, Regulations Governing Ermineskin Tribe No. 138, Tribal Election Custom (Revised, July 5, 1995) (the "Ermineskin Tribal Election Regulations"), and that the respondent is disqualified from nomination and subsequent election in accord with those regulations.
Facts
[3] Both the applicant, Gordon Wolfe, and the respondent, John Ermineskin, are members of the Ermineskin First Nation. The applicant avers that he had evidence of corrupt practice by the respondent, who it is alleged offered to pay money, and did pay money, to a third party for voting for the respondent as a candidate for the Ermineskin Council in the November 1997 election of the Ermineskin First Nation. He further states that this evidence was brought to the attention of the returning officer of the Ermineskin First Nation in advance of that election but no action was taken in relation to the evidence.
[4] The evidence referred to was a tape recording of a conversation including the third party, whose affidavit in this proceeding sets out the circumstances. That third party alleges that the respondent, John Ermineskin, in the recorded conversation with him, discussed an offer said to have been made to the third party to pay money for his vote in support of the respondent, and further money to others who could be encouraged to vote for the respondent. The third party swears that he was subsequently paid money. The tape of the conversation was copied and a copy was given to the returning officer by the applicant before the 1997 election. The respondent by affidavit swears that he did not offer to pay money for any votes and that he did not pay any money for that purpose.
[5] At the election in 1997 the respondent was not elected as a councillor. Subsequently, elections were scheduled for September 16, 1998 and the respondent was again a candidate for the office of councillor. At the nomination meeting, at which the returning officer presided, no objection was raised about the respondent's candidacy by the applicant, or by anyone else.
[6] On September 14, 1998, two days before the scheduled election, the applicant telephoned the returning officer, the same person who had served in that office for the previous election in 1997, and the applicant read a letter requesting a review of information concerning the respondent, information said to be in the possession of the Four Band Tribal Administration, by which the applicant apparently was referring to the evidence provided to the returning officer before the 1997 election. That letter was delivered to the returning officer the following day. Thereupon the returning officer advised the applicant to seek a legal opinion from the chairperson of the Election Appeals Board, constituted under the Ermineskin Tribal Election Regulations. When he did so, the applicant was informed by the chairperson that the matter should not have been referred to the Election Appeals Board.
[7] When no action was taken on September 15, 1998 by the chairperson of the Board with respect to reviewing the eligibility of the respondent to stand as a candidate for elections, the applicant states that, because of his concerns, he immediately requested the Chief and several councillors of the Ermineskin First Nation to convene an emergency meeting to discuss postponement of the election scheduled for the following day. The Chief and councillors then took no action.
[8] The election was conducted on September 16, 1998, as scheduled. The respondent was elected a councillor for the Ermineskin First Nation. Following the election the applicant did not request any further action by the returning officer, by the Election Appeals Board, or by any councillor or the Chief and Council of the Ermineskin First Nation. He did make this application to the Court for judicial review "of the decision of the Returning Officer, the Election Appeals Board and of the Chief and Council, all made September 15, 1998 to permit John Ermineskin to stand as a candidate in the Second Election of the Ermineskin Band".
[9] That description, from the application as filed, was later modified in terms of the relief pursued, and the returning officer and the Election Appeals Board were omitted as named parties. Ultimately, the claim heard was not that these decisions made September 15, 1998 be quashed, but that an order of quo warranto issue against the respondent and his continuance in office as a councillor, or alternatively an order in the nature of mandamus be directed to the returning officer or the Chief and Council to declare the respondent ineligible to hold elective office.
[10] It was agreed by the parties at the hearing that provisions of the Indian Act in relation to elections and the powers of the Minister of Indian and Northern Affairs in relation to Band elections under that Act are not applicable in this case. Here the elections in question were conducted under customary law of the Ermineskin First Nation. In this case, By-law E86-01 provides a codification of custom concerning elections of the Ermineskin First Nation.
[11] Provisions of the Ermineskin Tribal Election Regulations of relevance in this case include the following.
| a) Section 2(a)(iii) provides, in part: |
| A candidate shall be determined ineligible and disqualified from nomination and election, if: |
| ... |
| ... |
| iii) he was guilty of corrupt practice in connection with Ermineskin Tribal Affairs, dishonesty, malfeasance. |
| b) A code of conduct indicating certain acts are unacceptable includes the following (section 16(a)): |
| No monies shall be paid or other consideration given such that an elector will benefit from personal gain, or any drugs or alcohol be used to entice an elector by a candidate or his agent or representative to solicit the elector's vote. |
| c) The returning officer has a number of specific responsibilities for the conduct of nominations and elections, including the deciding of appeals concerning the residency status of an elector, but none of the responsibilities assigned specifically includes determination of ineligibility and disqualification on grounds set out in paragraph 2(a)(iii). |
| d) The Election Appeals Board is provided for and it has authority to hear appeals filed by a candidate for election within fourteen days after the election; and the Board shall conduct such inquiries as are necessary, shall hold a hearing and render a decision, which may include an order for a new election or to eliminate or disqualify candidates from re-election, or from any election within 10 years of the appeal. |
| e) The Chief and Council determine the eligibility of voters and post a voter's list, presumably in relation to age, Band membership and residence; prior to an election they select three persons to serve on the Election Appeals Board; and once annually they shall review the Election By-law and may amend it, subject to ratification of any change by the general membership of the First Nation. |
The issues
[12] No issue was raised about the jurisdiction of the Court in relation to the relief claimed or about proceeding by judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, in relation to actions of those responsible for elections of the Ermineskin First Nation.
[13] The issues here raised were: the standing of the applicant to claim extraordinary relief of the sort here sought, i.e., quo warranto or mandamus; whether an alternative process for dealing with the applicant's concerns existed; whether the returning officer or the Chief and Council erred in their decisions on September 15, 1998, and finally in the case of mandamus, the alternative relief claimed, whether the primary requirements for such an order are here established.
Standing
[14] For the applicant, relying upon the decision of Madam Justice Reed in Friends of the Island Inc. v. Canada, [1993] 2 F.C. 229 at 280-287, it is urged that a justiciable issue is raised, that the interest of the applicant, as a member and an elector of the Ermineskin First Nation, is directly affected by the outcome of the election, and there is no alternative effective and practical means of getting the issue before the courts. In that case the Court was concerned with claims to an order in the nature of mandamus and declaratory relief, the requirements for which were found to have been satisfied and the relief sought was granted.
[15] That case and those on which Her Ladyship there relied in assessing the applicant's standing, including Finlay v. Canada (1986), 71 N.R. 338 (S.C.C.), concern the question of public interest standing where an organization or individual seeks declaratory, injunctive or other extraordinary relief in relation to the discharge of public functions. They are helpful in relation to the claim for mandamus, but less so in relation to the claim for quo warranto.
[16] By its very nature the latter form of relief is awarded in exceptional cases to require one who exercises a public office, created by legislation or prerogative, to justify his authority to do so. In Jock v. Canada (Minister of Indian and Northern Affairs), [1992] 1 C.N.L.R. 103 (F.C.T.D.), where an application for quo warranto was dismissed because of the applicant's delay and because alternative procedures for resolving the matter had not been pursued, my colleague Mr. Justice Teitelbaum commented, in part in reviewing requirements for this exceptional relief (at p. 112):
| 6. The plaintiff must have a genuine interest in the proceedings. Nowadays probably any member of the public will have sufficient interest, provided that he has no private interest to serve. |
In my opinion, the second sentence is apt where the Court concerned determines that the remedy is appropriate, but it does not define the test for standing in all cases. Indeed, the few reported modern cases dealing with this special remedy seem to indicate to me that contests about the qualifications of elected officials are generally undertaken pursuant to statutory provisions for controverted elections, or pursuant to other forms of relief. A member of the general public, or in this case of the Ermineskin First Nation, who is not differently or more adversely affected than other members of the public or of the First Nation, by the election of a particular candidate for office, has no special interest standing to question the exercise of office by one who is elected, at least where there is an alternative process for questioning the election or the elected person's qualifications for office.
An alternative process for considering the issue
[17] Quo warranto and mandamus, both being exceptional discretionary remedies are not awarded where an alternative process is available for considering the issue sought to be brought before the Court. Here such a process is provided under the Ermineskin Tribal Election Regulations, by a candidate for election raising an appeal within 14 days of the election that is questioned. For the applicant, it is urged that process is not one that he can initiate, and moreover, it is implied he could not have persuaded a candidate to file an appeal. The latter may be his best assessment, but it is acknowledged that following the election he did not request any person who had run for the office of councillor to appeal the election of the respondent to the Election Appeals Board.
[18] Where a process is provided as here under the regulations, a party who elects not to attempt to have the appeal process followed, but rather to seek relief from this Court will not ordinarily be successful. The Court's discretion is better exercised by refusing quo warranto and in effect supporting the process established by the custom of the Ermineskin First Nation.
The matter of delay
[19] The applicant urges that there was no undue delay following refusal of the returning officer and others to act as he requested on September 15, 1998 and following the election on the next day.
[20] The respondent and the intervenor both urge that having first presented the tape recording to the returning officer in November 1997, the applicant took no further action, at the nomination meeting for the 1998 elections or thereafter until the very eve of that election. That is said to be undue delay.
[21] If quo warranto were otherwise considered appropriate relief here, which I am not persuaded is the case, the alleged delay would not be a negative consideration for this special relief only lies where the person said to have usurped office has in fact assumed the office. (see, Jock, supra at 112; deSmith, Judicial Review of Administrative Action, (4th ed. by J. M. Evans, 1980) pp. 463-464). In short, quo warranto would only lie, if at all, after the respondent was elected in 1998.
Alleged error by the Returning Officer and the Chief and Council
[22] It seems to me unnecessary to finally resolve whether on September 15, 1998 the returning officer and the Chief and Council erred in decisions they made in relation to the applicant's requests to them. The request to the returning officer, set out in the applicant's letter to him, was to review the candidacy of the respondent, and that to the Chief and some councillors was to hold an emergency meeting and postpone the election scheduled for the following day. Without determining whether they erred in not acceding to the applicant's requests, it is difficult to conclude that at the time the requests were made either had authority to determine the qualifications of the respondent. At the time presumably they were well aware that the Ermineskin Tribal Election Regulations provided for appeals by candidates following an election, to be determined by a special board, created to deal exclusively with election appeals, at arms length from both the returning officer and from the Chief and Council.
Mandamus
[23] I turn briefly to the claim for relief in the nature of mandamus to order the returning officer or the Chief and Council to consider the evidence proffered by the applicant and to declare the respondent guilty of corrupt practices within the meaning of section 2.(a)(iii) of the Regulations. Mandamus lies where a public duty is owed to the applicant who has made a demand or request that it be discharged and that demand or request has been refused.
[24] I am not persuaded that the returning officer had a public duty owed to the applicant at the time the applicant requested review of the respondent's candidacy for election, on September 14 and 15, 1998. Whatever his duties might have been at the time of the nominating meeting, the returning officer did not have a clear duty thereafter to investigate and decide the qualifications of one duly nominated at the nomination meeting. Furthermore, I am not persuaded on the basis of the applicant's affidavit that the request made to the Chief and Council on September 15 was one to investigate and determine the respondent's qualifications for election. Rather, it is said to have been a request for an emergency meeting to consider postponing the election. The Chief and Council owed no public duty to do as the applicant requested, so far as I understand the evidence. Since no public duty owed to the applicant is here established to have been refused to be performed, the primary requirement for an order in the nature of mandamus is not here established.
Conclusion
[25] I am not persuaded that an order in the nature of quo warranto should be granted. if that relief may lie directed to one who is elected to office, the Court will not grant the order where another process is available to question the assumption of office, even if that process may not formally be initiated by the applicant, where there is no evidence of effort on the applicant's part to have that process initiated following an election he seeks to question.
[26] Further, I am not persuaded that the evidence establishes any public duty owed by the returning officer, or by the intervenor the Chief and Council, which either refused to perform. Thus, there is no basis for the order in the nature of mandamus sought by the applicant.
[27] In the result, the application is dismissed.
[28] Each of the applicant and the respondent asked for costs if successful on this application. The intervenor made no submissions in regard to costs. The respondent, being successful in regard to this application, is entitled to costs on the usual party and party basis in an amount as counsel for the applicant and respondent may agree, or absent agreement then as may be taxed in accord with Tariff B, column III under the Federal Court Rules, 1998. The Order now issued so provides.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
December 10, 1999.