Federal Court

Aboriginal Law

Government of Aboriginal people


Employment at organizations affiliated with First Nation insufficient to give rise to reasonable apprehension of bias

First Nation held election for chief and council, and applicant S, unsuccessful candidate for chief, brought two appeals. In first appeal, S alleged that successful chief W committed corrupt practice during election which affected result by contravening Custom Election Code and Rules in relation to handling of mail-in ballots by bringing voter who lived off reserve four mail-in ballot packages. In second appeal, S alleged that successful councillor M violated Rules by suggesting during nomination meeting that S failed to pay amounts owed to First Nation. Appeal board dismissed appeals finding that no corrupt violation of Code or Rule occurred in first appeal, and that M had not engaged in corrupt practice and had not affected final outcome of election in second appeal. Applicants applied for relief, including judicial review of board’s decisions. Application dismissed. Section 12.3 of Code, which required appeal board to be appointed 40 days prior to election, was directory, not mandatory, and noncompliance with provision did not invalidate board’s actions. Appeal board was properly constituted even though it was appointed after election. There was no evidence that board member was biased in that he approached appeals with closed mind or that reasonable person would reasonably fear that he had. Members’ employment at organizations affiliated with First Nation was insufficient, on its own, to give rise to reasonable apprehension of bias. Applicants failed to provide evidence that pointed to actual conflict of interest between employment of members of board and S’s appeals, or evidence that would cause informed person, viewing matter realistically and practically and having thought matter through, to conclude that it was more likely than not that board members would not decide fairly. There were no issues in relation to composition of board that vitiated its decisions or resulted in breach of procedural fairness.

Commanda v. Algonquins of Pikwakanagan First Nation (2018), 2018 CarswellNat 2837, 2018 FC 616, Michael L. Phelan J. (F.C.).

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