Federal Court

Aboriginal Peoples

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.).

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