Grey v Whitefish Lake First Nation, 2020 FC 949

The Court dismissed an application for judicial review of an arbitrator’s decision to dismiss an election appeal. The Applicant unsuccessfully argued a reasonable apprehension of bias and reviewable substantive errors in that decision. 

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An Election Appeal Arbitrator [“Arbitrator”] was retained by Whitefish Lake First Nation [“WLFN”] for a 2018 general election [“Election”]. He was to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations [“Regulations”].

The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the Regulations. The Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief.

In 2019, the Applicant commenced this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application is the assertion that his Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserted three allegations, that in context altogether, would collectively meet the test for reasonable apprehension of bias.

The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (AG), 2020 FCA 5). The Applicant asserted in one of the allegations that the appointment process of the Arbitrator by the WLFN lacked independence and was procedurally unfair, because it was the executed by the WLFN Council. Section 7.1 of the Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution. The Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v Hamelin, 2018 FCA 131). The appointment of the Arbitrator by WLFN Chief and Council, along with two other allegations in this case, does not give rise to a reasonable apprehension of bias.

Although the Applicant also makes submissions asserting errors on the part of the Arbitrator pertaining to his decision and his weighing of the evidence, s 16.20 of the Regulations clearly precludes challenges on that basis, restricting challenges on judicial review to matters of procedural fairness. Accordingly, it is not open to the Applicant to challenge the Arbitrator’s decision on the merits.

Jackie Vautour et al v HMQ in Right of the Province of New Brunswick and the Attorney General of Canada, 2020 NBQB 007

Motion for recusal denied. The Plaintiff’s asserted their rights as Métis Acadian Mi’kmaq as justification for filing a claim for damages in the creation of the Kouchibouguac National Park. Their allegations of bias and apprehension of bias towards this claim by this Court were without merit.

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Indigenous CaseWatch Blog

The Plaintiff’s filed a claim stating that between 1969 and 1971, the Province of New Brunswick expropriated the lands of residents in Northern New Brunswick and transferred these lands to Canada for the creation of the Kouchibouguac National Park. It stated that the Park was not Crown land, and the Plaintiffs held Métis rights and title regarding the Park and therefore, damages were sought on numerous grounds. The Plaintiffs claimed rights as Métis Acadian Mi’kmaq who come within the meaning of s 35 of the Constitution Act, 1982.

After the hearing, the Plaintiffs filed a motion seeking recusal on allegations of a reasonable apprehension of bias. It was alleged that the exchange with counsel caused them to be of the view that the Court was biased (Commanda v Algonquins of Pikwakanagan First Nation, 2018 FC 606).

Every Canadian has the constitutional right to have their issues decided by a fair and impartial judge, and allegations of bias and recusal motions strike at the core of judicial integrity (R v RDS, [1997] 3 SCR 484). The test to determine a reasonable apprehension of bias is to ask, “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude” (Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369). The objective for the Court is not just to ensure the process is fair; it is also to grant the appearance of a fair process (Yukon Francophone School Board Education Area No 23 v Yukon Territory (AG), 2015 SCC 25). The onus to establish reasonable bias is a “real likelihood or probability of bias” which is a high standard.

This Court determined that a reasonable, right-minded and informed person would view the comments at issue in this motion as encouraging the Plaintiff’s counsel to point to relevant evidence and to get to the point if there was a point to be made. The Plaintiffs’ perception of the comments demonstrates a view of the words used in isolation, detached from the hearing in which they occurred, with a special subjective sensitivity. This subjective sensitivity is inefficient to meet the objective test for a reasonable apprehension of bias.

The Plaintiff’s allegation does not give rise to bias or a reasonable apprehension of bias. To the contrary, the record is clear that the Court had an open mind to the Plaintiffs’ submission. After reviewing the judicial comments made during the hearing, it was determined that there was no reasonable apprehension of bias. Therefore, the Plaintiff’s allegations of bias and apprehension of bias were without merit, as the Court had an open mind to their submission.