Federal Court

Aboriginal Peoples

Board not properly constituted and did not have jurisdiction to accept and decide petition

Previous Appeal Board consisted of three members whose term had not expired. One member of Previous Appeal Board died and one resigned because of health issues. Mayor was elected. Complaint was received with respect to mayor and complainant’s wife engaging in texting of sexually explicit nature. Band council resolution (BCR) was passed to present petition to remove mayor from office. Third member of Previous Appeal Board was mother of complainant’s wife and two other members could not be reached. Complaints and Appeal Board of Band Council (New Appeal Board) was appointed to hear petition. Applicants asserted petition and BCR did not conform to requirements. New meeting was held and present BCR was passed authorizing filing of new BCR with same allegations and goal of removing mayor. New Appeal Board conducted hearing but did not allow mayor to see second BCR. There was dispute as to whether mayor was permitted in hearing room for first hour and half. When mayor was present he was not allowed to see evidence presented against him. New Appeal Board declared elected mayor ineligible to hold office of Mayor and appointed second in mayoral elections to serve as mayor. Applicants asserted New Appeal Board was not properly constituted. Applicants sought judicial review. Application granted. New appeal Board was not properly constituted and did not have jurisdiction to accept and decide petition. Process followed in establishing New Appeal Board was improper and unreasonable. It was incumbent on respondents to make every effort to contact at least remaining two Board members to participate in meetings before taking any action to remove or replace them. Respondents did not do so and were unreasonable in removing and replacing two members of Previous Appeal Board. Not giving mother of wife of complainant opportunity to address her alleged conflict of interest was unfair and unreasonable. Apparent urgency in dealing with perceived improper relationship between mayor and complainant’s wife did not excuse summary dissolution of Previous Appeals Board, subsequent meeting of New Appeal Board to discuss respondents’ petition and evidence needed for petition to succeed. Actions were taken in absence of mayor and without his knowledge. Process was not totally independent or free from bias. Process taken for removal of mayor was fatally flawed.

Tait v. Johnson (Nov. 20, 2014, F.C., Michael D. Manson J., File No. T-1821-14) 247 A.C.W.S. (3d) 738.

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