SELF-GOVERNMENT

Appeal tribunal did not respect procedure and parameters

Applicant was candidate running for Chief in Band Council election. Applicant placed second by margin of three votes. Re-count reduced margin by two votes. Applicant launched appeal of election. Applicant challenged outcome of Band Council election. Appeal tribunal dismissed notice of appeal. Decision was signed by three individuals one of whom was not band member appointed to appeal tribunal. Application for judicial review was allowed. Appeal tribunal was “federal board, commission or other tribunal” for purposes of Federal Courts Act (Can.), and court had jurisdiction to consider application. Appeal tribunal did not respect procedure and parameters set out in Band’s Election Act. Appeal tribunal went beyond evidence referenced in notice of appeal and applicant’s affidavit of particulars in assessing whether there was sufficient evidence to move to second stage of appeal process. Appeal tribunal acted improperly and breached duty to act fairly. Appeal tribunal should have given applicant opportunity to hear and rebut opposing evidence in context of hearing. Appeal tribunal exceeded jurisdiction in assessing whether there was sufficient evidence to warrant appeal hearing. Appeal tribunal was not improperly constituted. Refusal by one of members to endorse preliminary ruling dismissing appeal was strong indication that there was sufficient evidence to warrant formal hearing.

Felix v. Sturgeon Lake First Nation (Oct. 6, 2011, F.C., Bedard J., File No. T-667-10) 207 A.C.W.S. (3d) 181 (25 pp.).

APPLICATION OF PROVINCIAL LAW

Parties could have been spared cost of litigation had sensible course of action been taken

Determination of costs following successful application for judicial review. Court had found that applicants were deprived of their voting rights and denied procedural fairness by respondents in violation of First Nation custom. In granting judgment court set aside decision of former Chief and Council to extend their terms of office, removed Chief and Council from office and ordered that election be held within 60 days. Applicants sought lump sum award giving them full indemnity on solicitor client basis for legal fees in amount of $258,850. Respondents contended that applicants should not be entitled to elevated costs as conduct of respondents or their counsel had not been reprehensible, scandalous or outrageous such as to justify exceptional award of solicitor-and-client costs. Respondents contended that issues were needlessly complicated in this proceeding by fact that applicants raised grounds from Canadian Charter of Rights and Freedoms when it was clear that such grounds had no foundation in law or facts. Relevant factors were that application was brought in interests of all of members of community, issues were complex and included conflicting evidence as to what constituted First Nation custom, conduct of respondent Chief and Councilors and their legal counsel tended to unnecessarily lengthen duration of proceedings, steps taken by respondent Chief and Councilors in proceeding were improper, vexatious or unnecessary, amount of work required to prepare for hearing, that written offer to settle was disregarded and that application was wholly successful. Applicants awarded costs on solicitor-client basis for application and for matters relating to this order for costs, fixed at a total of $285,000. Proceeding would not have been necessary had Chief and Council of First Nation put question of extension of their terms of office to membership as part of scheduled December 2010 election. All of parties could have been spared expense of costly litigation had that sensible course of action been taken. Failure of respondents to do so was blatant attempt to remain in power.

Shotclose v. Stoney First Nation (Sep. 7, 2011, F.C., Mosley J., File No. T-2085-10) 206 A.C.W.S. (3d) 445 (11 pp.).

PUBLIC SERVICE

Panels relied on outdated job descriptions to make decisions

Plaintiff was employee of defendant governmental agency since 1996. Selection panels appointed for staffing of positions rejected plaintiff’s application for three different positions on basis of lack of experience. They claimed that she did not have experience in international audits of at least eighteen months in past five years. Plaintiff asked for reconsideration but panels maintained initial decisions. Plaintiff sought judicial review. She claimed that decisions were unreasonable and arbitrary. She claimed that panels erred in their assessment of her experience. Application allowed. Determination of whether candidate had sufficient experience was question of fact. Reasonableness standard applied. Plaintiff had provided sufficient evidence of her relevant experience for positions sought. Panels had relied on outdated job descriptions to make their decisions and did not contact plaintiff’s former supervisors to ascertain her experience. Panels made fundamental and dominant error which justified judicial review. Appointment of new panels required to review plaintiff’s candidacy.

Tran v. Agence du Revenu du Canada (Aug. 19, 2011, F.C., Lemieux J., File No. T-493-10; T-494-10; T-503-10) Reasons in French. 206 A.C.W.S. (3d) 79 (28 pp.).

ARMED FORCES

Applicant given instruction on how to access medical records and failed to do so

Applicant began training as artillery officer. Applicant was accused of lying and demonstrating conduct in conflict with CF ethos. Applicant was deemed to have failed training. Applicant was released after completion of obligatory service. Grievances were allowed. Applicant suffered depression. Doctor found applicant’s chronic medical conditions were consequence of conflicts with military over career. Medical employment limitations were imposed on applicant. Applicant was compulsorily released on medical grounds. CDS dismissed grievances. Application for judicial review was dismissed. There was no breach of procedural fairness. Applicant was given specific instruction on how to access medical records and failed to do so. By time of CDS review in 2010 applicant had possession of all relevant documents. Applicant had time to consult independent physician and provide new medical evidence. There was no reason to interfere with decision on merits.

McBride v. Canada (Minister of National Defence) (Aug. 25, 2011, F.C., Martineau J., File No. T-83-11) 206 A.C.W.S. (3d) 73 (12 pp.).

PUBLIC SERVICE

Analysis generic and akin to rubber stamp

Application for judicial review of three decisions made by Decision Reviewer of CRA. Applicants made allegations of arbitrary treatment after they were unsuccessful in promotional process at CRA. Decision reviewer did not find any evidence of arbitrary treatment in selection process. Application allowed. Reasons inadequate. Analysis conducted by Decision Reviewer confined to sentence in which she expressed that applicants provided insufficient analysis in their Portfolios of Technical Competencies. Analysis generic and akin to rubber stamp. Nothing to suggest that allegations of applicants seriously considered. Notes of Decision Reviewer raised further concerns instead of clarifying reasons or expressing basis for decisions. Notes revealed Decision Reviewer found some of the worksheet comments of the Technical Competency Assessors to be questionable. Several e-mails in which Decision Reviewer expressed that requests for decision review might represent arbitrary decisions. Nothing to indicate how Decision Reviewer resolved issues presented by applicants or uncovered by her own review to come to conclusion TCA’s were reasonable in awarding scores.

D’Urzo v. Canada Revenue Agency (July 28, 2011, F.C., Near J., File No. T-591-10) 205 A.C.W.S. (3d) 979 (19 pp.).

JUDICIAL REVIEW

Interest due given respondents had means to calculate taxes due

Applicant sought judicial review of respondents’ decision that dismissed payment of interest on sums due. Applicant claimed that decision was unreasonable and lacked transparency in decision-making process. Supreme Court confirmed decisions rendered previously, ordering payment of sums as replacement of property taxes due. After decision of Supreme Court, respondents refused to pay interests. Application allowed. Court affirmed that decision not to pay sums was not based on impossibility to calculate them, but rather in respondents’ claim that sums paid as business tax could be deducted. Court affirmed that interests were due to circumstances of case and failure of respondents to make provisional payment. Interests were due given that respondents had all means to calculate taxes due and were duly notified according to terms of applicable legislation.

Montreal (Ville de) v. Administration Portuaire de Montreal (July 27, 2011, F.C., Martineau J., File No. T-833-10; T-936-10) Reasons in French. 205 A.C.W.S. (3d) 878 (17 pp.).