Date: 20031002
Docket: T-1258-02
Citation: 2003 FC 1128
BETWEEN:
COLLEEN GRACE KOOTENHAYOO a.k.a. COLEEN KOOTENAY, RACHEL JONES and CELINA M. POTTS
Applicants
and
GORDON A. ALGER, DORIS AGINAS, LOIS KOOTENAY, SANDY WAYNE ALEXIS, BARBARA PAUL, DARRYL POTTS, DARWIN ALEXIS, CHARLIE LETENDRE and RODERICK ALEXIS
Respondents
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of the respondent Electoral Officer Gordon A. Alger not to appoint an Election Appeal Commission because the applicants failed to appeal within the appeal limitation period established by the Customary Election Regulations of the Alexis First Nation (the "Election Regulations").
[2] This application concerns a general election called by the Alexis First Nation (the "Band") for June 18, 2002 to fill the positions of Chief and seven Band Councillors, and a subsequent run-off election held on July 8, 2002.
THE APPLICANTS
[3] All three of the applicants are members of the Band. Two of the applicants, Rachel Jones and Celina Potts, unsuccessfully ran as candidates for Band Councillor positions in the general election on June 18, 2002. The third applicant, Coleen Kootenay, expressed a desire to run as a candidate for Band Councillor, but was informed by the Electoral Officer that she was ineligible because she did not reside within a one hundred kilometre radius of the Alexis Indian Reserve #133, as required by paragraph 6.4 of the Election Regulations.
THE RESPONDENTS
[4] The respondents in this action are the Band's current Chief and Council, and the Electoral Officer for the June 18, 2002 election and July 8, 2002 run-off election, and are as follows:
(a) Roderick Alexis was elected as the Band's Chief in the June 18 general election;
(b) Doris Aginas, Lois Kootenay, Sandy Wayne Alexis, Barbara Paul, Darryl Potts and Darwin Alexis were elected as Band Councillors in the June 18 election;
(c) Charlie Letendre tied for the final Councillor position in the June 18 election with his brother Lonnie Letendre, but prevailed in the subsequent run-off election held on July 8, 2002;
(d) The remaining respondent, Gordon A. Alger, is the chief executive of First Nations Governance Inc. and was retained by the Band as the Chief Electoral Officer for the June 18, 2002 election. He is not a member of the Band and has no personal ties to the Band or any of the candidates in the June 18 general election. Prior to establishing his own business, Mr. Alger was employed by the Department of Indian and Northern Affairs for 21 years, during which time he was responsible for overseeing band elections in northwest Saskatchewan. He estimates he has been involved in between 200 and 300 First Nations elections and referendums and has conducted election investigations with respect to allegations of election irregularities. Mr. Alger also served as the Electoral Officer for the Alexis First Nation general election in 1998 and a by-election in 2000.
ISSUES
[5] At issue in this application are the applicants' attempts to appeal the results of the general election. They claim the election was flawed because a translator for Band members who only spoke Stoney was not available, ineligible voters and intoxicated persons were allowed to vote, and some voters were bribed. The following two issues emerge:
1. the proper construction of the limitation period for filing a Notice of Appeal with respect to the election; and
2. whether the electoral officer created a legitimate expectation that the procedure for filing the Notice of Appeal with him would not begin to run until the date of the "run-off election." Subsumed in this issue is whether the respondent Alger told the applicant Kootenay that she must wait until the run-off election before commencing an appeal.
THE RELEVANT ELECTION LAW
[6] Paragraphs 13.1 and 13.2 of the Election Regulations codify the available grounds for appeal and the legal procedure for filing an appeal;
13. ELECTION APPEALS
13.1 Appeal Period and Grounds of Appeal
Within five (5) consecutive days and including the Election Day, any Elector may appeal the results of an Election, By-election, or run-off Election on the following grounds:
13.1.1 An error was made in the interpretation or application of these regulations that materially and directly affected the conduct and outcome of the Election; or
13.1.2 A Candidate was ineligible for nomination pursuant to paragraph 6.4; or
13.1.3 Any Candidate was guilty of promoting or aiding corrupt Election practices including, but not limited to, bribery, threats, and intimidation of Candidates, Electors, the Electoral Officer, or Polling Clerks; or
13.1.4 Persons who voted were not eligible to vote; or
13.1.5 Any other circumstance, event, or action which improperly and directly affected the conduct and outcome of the Election.
13.2 Notice of Appeal
13.2.1 A Notice of Appeal in writing and signed by the Appellant shall be forwarded to the Electoral Officer outlining the grounds for the Appeal and with a cash deposit of Three Hundred ($300.00) Dollars.
13.2.2 The Notice of Appeal must be received by the Electoral Officer within three (3) days of the Election Day.
THE APPEAL LIMITATION PERIOD
[7] There is an inconsistency between the length of the appeal limitation periods described in paragraphs 13.1 and 13.2.2 of the Elections Regulations, but it is inconsequential to this application. The applicants contend the applicable appeal period is 5 days and the respondents agree. Mr. Alger interpreted the appeal period as lasting 5 days, and I accept that this is the correct interpretation of the Election Regulations.
THE NOTICES OF APPEAL
[8] Once a proper notice of appeal is received, the Electoral Officer is required by the Election Regulations to appoint an Election Appeal Committee. The applicants made several unsuccessful attempts to launch an appeal of the June 18 election. Ms. Potts faxed a notice of appeal to Mr. Alger on June 23, 2002, but it was denied because it was not received within the appeal period set out in
paragraph 13.1 and was not accompanied by the required cash deposit. Four Band members, including Ms. Potts and Ms. Jones, sent a letter of appeal to Mr. Alger on June 27, 2002. It was again
rejected because it was out of time and was not accompanied by the required cash deposit. On July 11, 2002, Mr. Alger received an undated letter from Ms. Kootenay stating that she wished to appeal the June 18 election. Ms. Kootenay indicated her appeal was based on the Indian Act, R.S.C. 1985 c. I-6 and that she understood she had "two weeks to appeal the election from June 18, 2002." Mr. Alger responded in a letter dated July 12, 2002, informing Ms. Kootenay that the Band elections are conducted in accordance with the Election Regulations, and that her notice of appeal was invalid because it was filed outside the appeal period and was not accompanied by the required cash deposit. The applicants do not dispute that these notices of appeal were deficient.
[9] The notice of appeal at issue in this case is a letter dated July 9, 2002 from Ms. Kootenay, with the June 27, 2002 letter from the other two applicants attached. These letters and a $300 deposit were sent by registered mail to Mr. Alger's postal box in Meadow Lake, Saskatchewan on July 10, 2002. It arrived at the post office in Meadow Lake on July 12, 2002 and was picked up by Mr. Alger on July 17, 2002. In her letter, Ms. Kootenay stated she was appealing the results of the general election held on June 18 due to corrupt practices. Although the run-off election held on July 8 is mentioned in the subject line of the letter, Ms. Kootenay did not object to the results of the run-off election.
THE DECISION UNDER REVIEW
[10] The decision under review is contained in a letter from the respondent Alger dated July 17, 2002 to the applicant Kootenay which determined that the notice of appeal "did not meet the requirements of section 13.1 and 13.2 as stated under the Alexis First Nation "Customary Election Regulations"." The respondent Alger considered that the five day limitation period for appeals of the results of the election ran from the date of the general election, not the run-off election.
ANALYSIS
Proper construction of the limitation period for the appeal
[11] The applicants' first argument is that under the provisions of the Election Regulations an appeal period for a general election does not begin to run until any subsequent run-off elections are first completed. They argue the "whole election" was not completed until July 8 and that the appeal period therefore lasted until July 12, the day the notice of appeal arrived at the post office in Meadow Lake.
[12] I disagree. The only reasonable interpretation of paragraph 13.1 is that the appeal period begins the day of the general election under appeal, regardless of whether a subsequent run-off election is required. By stating that an elector may appeal "the results of an Election, By-election, or run-off Election" in paragraph 13.1, the drafters of the Election Regulations evidently viewed each of these elections as a distinct circumstance and contemplated the possibility that any one of the three might give rise to an appeal. The most sensible interpretation of paragraph 13.1 is that the appeal period is designed to run from the date of the election, by-election or run-off election that will be the subject of the appeal. Moreover, it would be absurd to insist that an appeal of an election be delayed until after a run-off election is held when a successful appeal of the initial election could obviate the need for a run-off election. It is apparent that such a circumstance was contemplated by the drafters when they set out the notice period for a run-off election in paragraph 12.3:
12.3 Notice of Run-off Election
Within seven (7) days of the previous Election Day or the date of the decision of the Election Appeal Panel related thereto, the Electoral Officer shall post a Notice of Run-off Election in the same manner, form, and places as the initial Notice of Election as set out in paragraph 8.1.2. [Italics added.]
I am satisfied Mr. Alger was correct to calculate the appeal period based on the date of the initial election.
[13] It is trite law that the modern approach to statutory interpretation is to seek the intent of the legislators by reading the words of the provision in context according to their grammatical and ordinary sense, harmoniously with the scheme and object of the law. See R. v. Jarvis [2002] S.C.C. 73 paragraph 77. The Alexis First Nation has codified its customs and traditions in regard to the election of a Chief and Council in its 1997 Election Regulations. The Band has specified a five day limitation period for filing a Notice of Appeal from the election day with respect to the results of "an Election, By-election, or Run-off election". The use of the conjunctive preposition "or" contemplates three different types of elections. One of the purposes of a short limitation period is so that any dispute is challenged on an immediate basis, investigated on an immediate basis, and resolved on an immediate basis. Moreover, section 13.2 ensures that the notice of appeal is not frivolous by requiring a cash deposit of $300.00 and specifies that the notice of appeal be received by the electoral officer within three days of the election day. For reasons discussed above, this "three-day" limitation period is inconsistent with the "five-day" limitation period referred to in section 13.1 and the Court finds that the proper interpretation of this inconsistency or ambiguity is that the limitation period is five days from the day of the election. But it is five days from the day of the election which is the subject of the appeal, and the run-off election is clearly contemplated by the Election Regulations to be a different election than the general election. In my view, this construction of the limitation period reflects the ordinary meaning of the words, as well as the scheme and object of the Election Regulations.
LEGITIMATE EXPECTATIONS
[14] The applicants also argue Mr. Alger created a legitimate expectation that the appeal period would not begin to run until the date of the run-off election. The applicants' evidence on this point is contained at paragraphs 9 and 10 of an affidavit sworn by Ms. Rachel Jones on September 4, 2002:
9. THAT I am informed by Coleen Kootenay and do verily believe that immediately following the June 18th, 2002, election, Coleen Kootenay approached the Electoral Officer and stated that she wished to commence appeal proceedings due to the numerous irregularities that occurred during the election. At that time the Electoral Officer provided Coleen Kootenay with his business card and told her that she would have to wait until the run-off elections were over prior to commencing an Appeal. Coleen Kootenay then advised him that she would be forwarding a letter to the Electoral Officer. Attached and marked as Exhibit "G" is a copy if the letter forwarded by Coleen Kootenay to the Electoral Officer.
10. THAT I am informed by Celina Potts and do verily believe that the day after the June 18th, 2002 election, Celina Potts contacted Gordon Alger and advised him that she had numerous concerns regarding the conduct of the election and that she wanted to appeal the election results. At that time, Celina Potts was informed by Gordon Alger that she should forward a letter outlining her concerns to him but that it was not necessary to forward any money or conduct formal appeal proceedings as there was to be a run-off" [sic] election and that "election 2002 is not over until the run-off election is over".
[15] Mr. Alger contests the evidence of Ms. Jones. At paragraphs 40 and 41 of his affidavit he stated:
40. Concerning the allegation that Coleen Kootenay approached me to advise that she wished to appeal immediately following the June 18th election, I state that Coleen Kootenay approached me on the date of the Election, being June 18, 2002, and told me she intended to appeal. Coleen Kootenay also told me she intended to appeal well prior to the Election after I had advised her that she was not eligible to run in the Election. Every time Coleen Kootenay had occasion to speak to me she told me that she intended to appeal.
41. I deny ever advising Coleen Kootenay that she would have to wait until the Run-Off Election was over. My response to Colleen [sic] Kootenay was the same response which I provide to any person expressing an interest in appealing - which was to advise her that it was her right to commence an appeal and that she may consult with a lawyer to assist her in the appeal.
And at paragraph 44 of his affidavit, he stated:
44. With respect to the allegations contained in paragraph 10 of Rachel Jones's Affidavit, I have no recollection of ever speaking with Celina Potts about an appeal. In any event, I would not have advised Celina Potts or any other person that "election 2002 is not over until the run-off election is over". That information is wrong and I would not provide information which I knew to be misleading. I also would not have advised Celina Potts or any other person not to provide a deposit as required by the Regulations. That information is wrong and I would not provide information which I knew to be misleading.
[16] Evidentiary disputes of this nature are difficult to resolve based solely upon affidavit evidence. Mr. Alger was cross-examined on his affidavit and his evidence about what he told the applicants and when he spoke to them was somewhat vague. Understandably, his recollection of two brief conversations he had in the midst of administering two elections for the Band was imperfect. Nevertheless, I am inclined to believe Mr. Alger's version of events. As mentioned above, he has a wealth of experience in administering band elections and has developed a standard response to requests for an appeal. Under cross-examination, he made the following comments when asked about what he said to Ms. Kootenay (see pages 62-63 of the transcript):
Q Do you recall on June 18th her telling you to appeal and you giving her your business card?
A Yes, I give her my business card, and I would also tell her, every time she mentioned the word appeal, I would advise her to seek legal counsel. I do that to everyone, it is their right to appeal.
[...]
Q What exactly did you say to her?
A I said to her it is your right to appeal, and my advice to you is to get legal counsel.
Q And you 100 percent recall telling her that on June 18th?
A Yes. I use those exact words to anyone who mentions the word appeal. It is their right to appeal, and my advice is to get legal counsel. [Emphasis added.]
[17] I prefer Mr. Alger's evidence to the evidence presented by the applicants. Neither Ms. Kootenay nor Ms. Potts swore an affidavit in this application, even though the events in question were within their personal knowledge. No satisfactory explanation was provided for why this information was contained in an affidavit from Ms. Jones, who was the only applicant lacking personal knowledge of what representations Mr. Alger might have made. Based on Rule 81(2) of the Federal Court Rules, 1998, SOR/98-106 , I have decided to draw an adverse inference from the failure of the applicants to provide affidavits from Ms. Kootenay and Ms. Potts. Rule 81(2) states:
Affidavits on belief
(2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.
Poids de l'affidavit
(2) Lorsqu'un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables.
[18] The assertions of Ms. Kootenay and Ms. Potts are also at odds with their behaviour between June 18 and July 8. It is hard to accept that they genuinely believed an appeal could not be commenced until after the run-off election when they attempted to launch an appeal on several occasions prior to July 8. They did not mention Mr. Alger's alleged assurances about the appeal period in any of their appeal letters, even after they received responses informing them that the appeal period had expired. Further, none of the responding letters sent by Mr. Alger indicate the appeal period would not commence until after the run-off election. It seems inconceivable that he
would reverse his interpretation of the Election Regulations in such a short time period and there is
no reason to believe he was acting in a partisan manner. Mr. Alger has no personal connection to the Alexis First Nation and his business would undoubtedly suffer if he engaged in such behaviour. I fully believe the following statement he deposed at paragraph 8 of his affidavit:
8. I am familiar with Alexis through my work as an Electoral Officer. However, I am not a member nor have I any personal ties to Alexis, its Chief and Council, or its members. I have no personal interest in the outcome of the Election, the Run-Off Election, or these proceedings except my commitment to perform the office of Electoral Officer to the best of abilities and in accordance with my professional ethics, background and experience.
[19] Accordingly, the applicants lack the factual underpinnings for their argument that the respondent Alger created a legitimate expectation that the procedure for filing a Notice of Appeal with respect to the June 18 general election need not be filed until after the run-off election on July 8. Accordingly it is not necessary for the Court to decide in this case whether the applicants' claim based on the doctrine of legitimate expectations concerned substantive rights or administrative procedural matters. The doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain per Baker v. Minister of Citizenship and Immigration, (1999) 174 D.L.R. (4th) 193 (S.C.C.) at paragraph 26.
DISPOSITION
[20] For these reasons, this application for judicial review of the decision of the electoral officer will be dismissed with costs.
"Michael A. Kelen" ________________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1258-02
STYLE OF CAUSE: COLLEEN GRACE KOOTENHAYOO et al v.
GORDON A. ALGER et al
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: September 16, 2003
REASONS FOR Order : The Honourable Mr. Justice Kelen
APPEARANCES:
Nathan J. Whitling FOR APPLICANT
J. Trina Kondro FOR RESPONDENT
SOLICITORS OF RECORD:
Parlee McLaws LLP
Edmonton, AB FOR APPLICANT
Ackroyd, Piasta, Roth & Day
Edmonton, AB FOR RESPONDENT
FEDERAL COURT OF CANADA
Date: 20031002
Docket: IMM-1258-02
BETWEEN:
COLLEEN GRACE KOOTENHAYOO et al.
Applicants
- and -
GORDON A. ALGER et al.
Respondents
REASONS FOR ORDER