Federal Court

Aboriginal Peoples

No procedure governing recounts and no specific duty to post results

Application by election candidate for judicial review of decisions not to post results of recount and not to recognize results of recount. First Nation conducted election for chief and council. Candidate unsuccessfully ran for councillor position. Recount was requested after deadline for appeals provided in Custom Election Code, 2003. Recount indicated candidate would have won councillor position. First Nation’s electoral officer did not post results of recount, but did refer matter to chief and council. Chief and council did not accept results of recount due to expiration of deadline for appeals. Application dismissed. Standard of review was reasonableness and both decisions were reasonable. There was little in Code about recounts. There was no procedure governing recounts and no specific duty to post results. In absence of any specific guidance in Code, electoral officer had acted reasonably in merely referring matter to chief and council. Officer’s decision was prudent and respectful of superior authority of chief and council. Chief and council reasonably concluded seven-day appeal period should apply to recounts. While grounds of appeal in Code did not specifically include recounts, applicable provision was clearly not exhaustive. Intent of Code was to deal with challenges to election results swiftly so that community’s leadership was not put in doubt for extended period. Interpreting appeal provision as covering recounts was consistent with that intent. Absent specific rules for recounts, appropriate route for challenging election results was by way of appeal.

D’Or v. St. Germain (Mar. 12, 2013, F.C., James W. O’Reilly J., File No. T-1099-11) 226 A.C.W.S. (3d) 614.

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