2018 NUCJ 13, 2018 NUCJ 13

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Redfern v. Qikiqtani Inuit Association, 2018 NUCJ 13 Date: 20180509 Docket: 08-15-007 Registry: Iqaluit Applicant: Madeline Redfern -and- Respondent: Qikiqtani Inuit Association ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Applicant): Crista Osualdini Counsel (Respondent): Sylvie M. Molgat Location Heard: Iqaluit, Nunavut Date Heard: May 8, 2017 Matters: Judicial Review REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents I. INTRODUCTION .. 3 II. EVIDENCE . 3 III. ISSUES . 4 IV. ANALYSIS . 6 A. Is the matter moot? . 6 B. Is the matter subject to judicial review? . 8 C. Is the QIA a public or private organization? . 9 D. Standard of review .. 13 (i). Was the failure to provide Community Director ballots to voters in Ottawa discriminatory? 14 D.i.1. Human Rights Act 15 D.i.2.

Section 15 of the Charter 15 D.i.3. Conclusion on discrimination allegation . 17 (ii). Was the failure to provide Community Director ballots to voters in Ottawa a breach of procedural fairness or natural justice? . 17 V. REMEDIES . 19 VI. CONCLUSION .. 20 VII. COSTS . 21

I. INTRODUCTION [ 1 ] This is an application by Madeline Redfern [Redfern] for judicial review of the December 8, 2014 election results for the position of Community Director, Iqaluit, of the Qikiqtani Inuit Association [QIA]. [ 2 ] This application was filed shortly after the 2014 election. Redfern initially sought to have the election results for the Iqaluit Community Director set aside and a new election held for that position. For various reasons this matter has taken some time to work its way through the Court.

As a consequence, it is not reasonable to consider setting aside the results of an election held over three years ago. [ 3 ] In light of this, Redfern amended her application. The remedy she asks the Court to grant is: …an order in the nature of mandamus that in any and all future elections, the QIA shall operate the Ottawa Polling Stations so that they function procedurally in an identical manner to those polling station(

s) within the Qikiqtani region; …a declaration that the manner in which the QIA operated the Ottawa Polling Stations and more particularly the QIA’s failure to provide ballots to the Ottawa Polling Stations during the Election for the Director Position was a breach of procedural fairness for both candidates and eligible Ottawa voters. II. EVIDENCE [ 4 ] The QIA is a corporate body/non-profit society, incorporated under the Societies Act , RSNWT (Nu) 1988, c S-11. It is mandated to represent the interests of Inuit living in the Qikiqtani Region of Nunavut.

The Board of Directors consists of a President, a Vice President, a Secretary Treasurer (the executive officers) and 13 Community Directors, one from each community in the Qikiqtani Region. [ 5 ] Elections for the Board of Directors are conducted in accordance with the Election Regulations contained in the By-Laws of the QIA. The applicable Election Regulations for the purposes of the 2014 election were those which came into force in October/November of 2014. [ 6 ] QIA elections are staggered, meaning that at each election only some positions are open for election.

This ensures continuity at the Board. [ 7 ] At the election in question, members of the QIA were voting for a President and for eight Community Directors, including Community Director for Iqaluit, a position for which there were two candidates. In addition to polling stations in each of the 13 Qikiqtani communities, two polling stations were established in Ottawa, as it has a significant Inuit population. [ 8 ] QIA members who were residents of Iqaluit but in Ottawa on voting day and who attended the polling stations in Ottawa were provided with a ballot for the election of the QIA President.

They were not provided with a ballot for the election of the Iqaluit Community Director. They were advised that in order to vote for the Iqaluit Community Director they would have to provide their proxy to a voter physically present in Iqaluit. [ 9 ] The Applicant lost the election for Iqaluit Community Director by one vote. III. ISSUES [ 10 ] This matter raises a number of issues.

1. Is the matter moot? 2. Is the matter subject to judicial review? 3. If the matter is not moot and is subject to judicial review, the parties submit that the issues are as follows: i.

Applicant’s statement of issues: a. did QIA fail to adhere to the election procedures and thereby breach its duty of procedural fairness; b. did QIA fail to meet the legitimate expectations of voters and other candidates; c. did QIA discriminate against eligible voters who attended the Ottawa polling stations; d. did QIA inappropriately, unreasonably and arbitrarily distinguish between voters who attended the Ottawa polling stations and those who attended polling stations in the Qikiqtani Region, thereby creating unfairness to the Applicant, the other candidates, and eligible voters; e. what are the appropriate/available remedies? ii.

Respondent’s statement of issues: a. what is the standard of review; b. were QIA’s By-laws and Election Regulations followed; c. was there a breach of natural justice; d. was the Iqaluit Community Director election result reached in a bona fide manner; e. should the Court exercise its discretion to grant declaratory relief? [ 11 ] I will return to these statements of issues later in the decision.

IV. ANALYSIS A. Is the matter moot? [12] The leading authority on mootness is Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342, 57 DLR(4th) 231 [Borowski], which states that a matter will be moot if there is no longer a controversy affecting the rights of the parties. Ifthere is no longer a tangible and concrete dispute between the parties which will be resolved by a decision of the Court, then the matter ismoot. [13] However, there are circumstances where it is appropriate for the Court to decide the matter even though it is moot.

In determiningwhether to exercise its discretion in this regard, the Court should consider three factors: 1. has the matter been fully argued in an adversarial context; 2. is the matter one to which scarce judicial resources should be expended despite the matter being moot; 3. should the Court decide the matter, having regard to the principle of judicial restraint? [14] It is clear that, given that the results of the 2014 election have essentially been accepted by the Applicant and she is no longerseeking to have the result overturned, there is no longer a dispute to be resolved which will immediately affect the rights of the parties.

Whether or not the rights of the parties might be affected in some future election would be speculative. There being no live disputebetween the parties, I find that the matter is moot. Having made that determination, I must consider whether the Court should exerciseits discretion to decide the matter regardless of the matter now being moot. [15] It is clear that this matter was fully argued in an adversarial context, allowing the Court to hear and consider full and completesubmissions.

Indeed, the lengthy delay in this matter, leading it to become moot, was largely due to steps taken to ensure that the issueswere fully canvassed and the relevant record was fully before the Court. [16] The nature of the matter is such that the issue is capable of repetition but evasive of review. The issue will always arise in theaftermath of a contested election. Time will be of the essence given the need for certainty in the election results.

Arguably, the analysisand argument in this matter are equal to or greater than that which could be provided immediately following an election. [17] As stated in Borowski at pages 360-361: Similarly an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but briefduration. In order to ensure that an important question which might independently evade review be heard by the court, the mootnessdoctrine is not applied strictly. This was the situation in International Brotherhood of Electrical Workers, Local Union 2085 v. WinnipegBuilders' Exchange, supra.

The issue was the validity of an interlocutory injunction prohibiting certain strike action. By the time thecase reached this Court the strike had been settled. This is the usual result of the operation of a temporary injunction in labour cases. Ifthe point was ever to be tested, it almost had to be in a case that was moot. Accordingly, this Court exercised its discretion to hear thecase. To the same effect are Le Syndicat des Employés du Transport de Montréal v. Attorney General of Quebec, (SCC), [1970] S.C.R. 713, and Wood, Wire and Metal Lathers' Int. Union v.

United Brotherhood of Carpenters and Joiners of America, (SCC), [1973] S.C.R. 756. The mere fact, however, that a case raising the same point is likely to recur even frequentlyshould not by itself be a reason for hearing an appeal which is moot.

It is preferable to wait and determine the point in a genuineadversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. [18] Finally, this is not a matter which, because it has become moot, is being argued in a factual vacuum, nor is it the type of matter thatthe Court should decline to hear in deference to parliament or some other legislative authority. By proceeding to consider the issuesraised, the Court would not be overstepping its authority, particularly when the first issue to be decided is the justiciability of the matter.

[ 19 ] I find that the matter is moot but that the Court should exercise its discretion and proceed to consider and decide the matter. B. Is the matter subject to judicial review? [ 20 ] Fundamentally, judicial review is the authority of the Court to review the decisions of the executive branch of government. It is the authority of the Court to review decision-making of a public nature rather than decision-making that is private and between individuals and private entities.

That being said, it can sometimes be difficult to identify if an organization is exercising a public function. [ 21 ] Historically, the distinction determined not only the scope of the review but also the remedies which were available. More recently, the distinction is less important when determining the available remedies; however, it is of continued importance when determining the scope of the review. [ 22 ] Judicial review of the decision of a public decision-maker allows the Court to review both the procedural fairness of the process used to reach the decision and the substance of the decision.

Of course, a Court does not have the authority to simply substitute its own decision for that of the tribunal. Judicial decision-making cannot turn on the personal proclivities of the judge but must base itself in established legal doctrine and binding precedent.

It is this legal doctrine and precedent which sets out the limits of the Court in a matter of judicial review. (David Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases”, October 21, 2017) [ 23 ] Historically, a successful review of a decision of a public decision-maker permitted the Court to consider a number of prerogative remedies, those being certiorari (a setting aside of the decision), mandamus (a direction to the public tribunal to carry out its public function), prohibition (a direction to the tribunal to stop doing something it does not have the authority to do), habeas corpus (a determination of the validity of a person’s detention or imprisonment), and quo warranto (a challenge to a person’s entitlement to a public office). [ 24 ] Decisions and actions of a private nature were reviewed in accordance with the law of contract.

The Courts have always been able to review the decisions and actions of private clubs to ensure that they were in accordance with the clubs’ rules and by-laws, the rules and by-laws being the terms of the contract ( Baird v Wells (1890), 44 Ch D 661 ). Over time the law developed such that in addition to reviewing decisions to ensure they complied with the rules and by-laws of the consensual organization, the Court also placed public policy limitations on such decisions.

In such matters, only the private law remedies of injunction (prohibiting someone from doing something) and declaration (declaring a decision to be invalid) were available. The distinction between public and private organizations in regards to the possible remedies available has become less important over time. [ 25 ] The analysis which must be undertaken is: 1. Is the QIA a public or private organization? 2. If the QIA is a public organization, i. what is the standard of review to be applied to the decision under review; ii. should the decision be declared invalid? 4.

If the QIA is a private organization, i. did the organization breach its own rules; ii. was there a lack of procedural fairness;

iii. was the decision made in bad faith? C. Is the QIA a public or private organization? [ 26 ] The first step in the analysis is to determine if the organization is public or private in nature. [ 27 ] In determining whether an organization is public or private in nature the Court must consider a number of criteria. [ 28 ] One criteria is whether membership in the organization is voluntary or involuntary. Some organizations, such as social clubs, may be clearly voluntary in nature. With other organizations, the distinction is not so clear.

For example, in Kaplan v Canadian Institute of Actuaries (Investigation Team) , 1997 ABCA 310 , 151 DLR (4th) 481 [ Kaplan ] , the Court was considering membership in the Canadian Institute of Actuaries . Although a person did not need to be a member of the association to work as an actuary, membership in the association might be viewed as enhancing one’s qualifications. Further, certain statutes required membership in the association to perform duties under the statute.

Hunt J., writing for the Alberta Court of Queen's Bench and affirmed by the Alberta Court of Appeal, concluded that the association was a private one, but not without some concerns given the impact membership or non-membership had on livelihood, noting that it is probably more akin to an amalgamation of a public and private organization.

Hunt J. further held that private organizations’ decisions could be reviewed to ensure that the rules of the organization were followed, that the procedure followed was not contrary to natural justice, and that the decision reached was bona fide. [ 29 ] The approach in Kaplan was followed in a series of cases, including Falk v Calgary Real Estate Board Co-operative Limited , 2000 ABQB 296 , 265 AR 60 ; Lee v Yeung , 2012 ABQB 40 , 531 AR 171 ; Setia v Appleby College , 2013 ONCA 753 , 118 OR (3d) 481 . [ 30 ] In Knox v Conservative Party of Canada , 2007 ABCA 295 , 85 Alta LR (4th) 34 [ Knox ] , the Court considered whether the Conservative Party’s nomination decisions and process were subject to judicial review.

The Court concluded that while the nomination process for political parties was an important function in a democracy, a political party is essentially a private organization. The Court stated at paragraph 20 “if a tribunal is exercising powers that do not accrue to private organizations, and that are only vested on the tribunal by statute for the benefit of the public, then it is subject to judicial review”.

The Court went on to state that a tribunal may have both public and private powers, thus, some decisions might be subject to review while others would not. [ 31 ] Following up on Knox , not all decisions made by a public organization are subject to judicial review. Public organizations frequently make decisions that are essentially private and contractual in nature. Such decisions are not subject to review.

The Court must go further and determine if the particular decision which is sought to be reviewed was a decision of a public nature ( Air Canada v Toronto Port Authority , 2011 FCA 347 , [2013] 3 FCR 605 [ Air Canada ] ). [ 32 ] In Air Canada , at paragraph 60 , the Court provided guidance as to how to determine if a decision is of a public nature and, therefore, subject to judicial review.

The Court stated that it must consider: 1. the character of the matter for which review is sought; 2. the nature of the decision-maker and its responsibilities; 3. the extent to which the decision is founded in and shaped by law as opposed to private discretion; 4. the body’s relationship to other statutory schemes or parts of government; 5. the extent to which a decision-maker is an agent of government or is directed, controlled, or significantly influenced by a public entity;

6. the suitability of public law remedies; 7. the existence of compulsory power; 8. an exceptional category of cases where the conduct has attained a serious public dimension. [ 33 ] In this matter, it is necessary to place the QIA in the context of the governance structures of Nunavut. [ 34 ] Land claims negotiations between the Inuit of the Nunavut Land Claims Settlement Area, as represented by Tunngavik Federation of Nunavut [TFN, now Nunavut Tunngavik Incorporated, NTI] and the federal government culminated in the signing of the Nunavut Land Claims Agreement [NLCA] in 1993.

The NLCA is fundamentally a contract, albeit a special category of contract. [ 35 ] The NLCA encompasses a wide range of matters which are to be administered for the benefit of Inuit, including land ownership, sub-surface rights, harvesting rights, and financial and economic benefits.

Individual beneficiaries of the NLCA have harvesting rights, rights of entry and access to Inuit Owned Land [ILO], and employment preferences not available to non-beneficiaries. [ 36 ] Pursuant to the NLCA many responsibilities and obligations are delegated to Inuit organizations, referred to as Designated Inuit Organizations [DIOs], of which the QIA is one, along with the other two Regional Inuit Associations, the Kivalliq Inuit Association and the Kitikmeot Inuit Association (see

Article 39.1.3, NLCA). [ 37 ] The public record of DIOs, which is required to be maintained pursuant to

Article 39.1.5 of the NLCA, indicates that the QIA has significant powers, functions, and authority. It has representation and responsibilities for the management of wildlife and the planning and management of parks. It has both surface rights and water rights on ILO in the Qikiqtani Region. The QIA is responsible for the negotiation of Inuit Impact Benefit Agreements [IIBA] when major developments are undertaken or parks established. An IIBA may include terms for the benefit of individual members, such as rights regarding employment. [ 38 ] Pursuant to

Article 35 of the NLCA, each community in Nunavut has an Enrolment Committee. An individual becomes a beneficiary of the NLCA by applying to the Enrolment Committee. [ 39 ] Only those who have registered and been accepted as beneficiaries under

Article 35 of the NLCA can receive the rights and benefits provided for in the NLCA. There are criteria which must be met to qualify for enrolment. However, because one is able to satisfy the requisite criteria does not mean that they are automatically a beneficiary. They must take the step to enroll themselves. In this sense, status as a beneficiary of the NLCA is voluntary; one may be entitled to register as a beneficiary but may choose not to. [ 40 ] Membership in the QIA derives from membership as a NLCA beneficiary.

For membership in the QIA, one must first be a beneficiary of the NLCA and then must meet the additional qualifications of residency in the Qikiqtani Region. [ 41 ] Certainly, an individual can choose to not register as a beneficiary, but to do so is to relinquish many rights and benefits to which one is entitled.

This is distinguishable from the circumstances the Court was dealing with in Boucher v Métis Nation of Alberta Association , 2009 ABCA 5 , 100 Alta LR (4th) 214 , wherein the Court held that the Métis Nation of Alberta Association was a private organization and its decisions not subject to judicial review. In that case, the Court found that a person’s Métis status and the rights that flowed from that status were the same regardless of whether one was a member of the Association or not.

The same cannot be said for an Inuk of Nunavut who decides not to enroll as a beneficiary of the NLCA. [ 42 ] The nature of the powers exercised by NTI and the QIA are wide in scope and significant in their impact on Inuit collectively and individually. They relate to land, harvesting, employment, finance and economics, social development, and culture. These are many of the same areas that are managed by public governments. In my view, the fact that NTI and the QIA exercise their powers not for the public at large but only for Inuit does not make them any less public in nature.

The nature of the powers exercised and the fact that they are exercised for the benefit of approximately 85 per cent of the population of Nunavut, as well as many living outside of Nunavut, takes them beyond the scope of functions carried out by a purely private organization.

[ 43 ] For the individual, the nature of the rights which flow from being a beneficiary are significant, as they relate to the individual’s status as an Inuk and their aboriginal rights. [ 44 ] I find that the QIA is a public organization. D. Standard of review [ 45 ] There are two standards of review in a judicial review: reasonableness and correctness ( Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 ). A reasonableness standard shows deference to the decision-maker and recognizes that there may be a range of decisions that are possible, acceptable outcomes given the circumstances.

A correctness standard does not show deference to the decision-maker. [ 46 ] A correctness standard will apply where the issue is a question of law of general application and, therefore, of importance beyond the scope of the tribunal. [ 47 ] Instances where reasonableness standard should be applied are where the authorizing statute or legislation indicates deference should be shown to the decision-maker, the decision-maker has particular expertise, and the decision-maker is engaged in interpreting its own statute. [ 48 ] I would reframe the issues as follows: 1. was the failure to provide Community Director ballots to voters in Ottawa discriminatory; 2. was the failure to provide Community Director ballots to voters in Ottawa a breach of procedural fairness or natural justice; 3. if the answer to either of the two prior questions is “yes”, what is the appropriate remedy? [ 49 ] Different standards of review may apply to different issues. [ 50 ] The allegation regarding discrimination in the electoral process engages constitutionally-protected rights and has the potential to impact elections generally.

The standard of review is correctness. [ 51 ] With respect to the allegation of a breach of procedural fairness or natural justice, the decision of the Chief Returning Officer [CRO] is one within her expertise; it involves an

interpretation of the Election Regulations, and the exercise of discretion. The standard of review is reasonableness. (i). Was the failure to provide Community Director ballots to voters in Ottawa discriminatory? [ 52 ] Although in her pleadings the Applicant set out discrimination as a basis for setting aside the election results, there was no argument provided on this point. The Applicant did not ground the discrimination claim in either the Human Rights Act , SNu 2003, c 12 [ Human Rights Act ], or in

section 15 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), c 11 [ Charter ]. No analysis was undertaken. In my view, this alone would be sufficient to

dismiss this aspect of the Application. [53] However, there are additional reasons for dismissing this aspect of the Application. [54] The discrimination alleged is based on location of the voter on voting day. D.i.1. Human Rights Act [55] The Human Rights Act provides as follows: Prohibited grounds of discrimination 7.

(1) For the purposes of this Act, the prohibited grounds of discrimination are race, colour, ancestry, ethnic origin, citizenship, placeof origin, creed, religion, age, disability, sex, sexual orientation, gender identity, gender expression, marital status, family status, pregnancy, lawful source of income and aconviction for which a pardon has been granted. [56] The alleged discrimination in this matter does not fall within any of the prohibited grounds set out in the Human Rights Act and onthat basis alone the Act is not applicable. D.i.2.

Section 15 of the Charter [57]

Section 15 of the Charter states:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [58] Not all distinctions or differential treatment will amount to discrimination. [59] In determining whether there is discrimination pursuant to

section 15, the Court must apply a two-part test: 1. does the law create a distinction based on an enumerated or analogous ground; 2. does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (R v Kapp, 2008 SCC 41, [2008]2 SCR 483) [60] The analysis of a discrimination claim pursuant to

section 15 of the Charter is complex. The Court simply has not heard anyargument with respect to the application of the

section 15 jurisprudence to this particular matter. Further, there is jurisprudence in whichdifferences in voting eligibility were found to not be discriminatory. [61] In Re: Election Act (BC) (1986), 3 BCLR (2d) 376, (BC SC) [Re: Election Act (BC)], the Applicant applied forjudicial review of a decision by the Chief Electoral Officer. Pursuant to the Election Act, RSBC 1979, c 10, voters who were notregistered could register on polling day in the electoral district in which they resided.

Voters who were registered but who moved to adifferent electoral district were not able to register on polling day in the electoral district in which they now resided. They were requiredto either register in their new electoral district 20 days prior to election day or to cast an absentee ballot in the electoral district in whichthey had previously resided. The Applicant argued that such requirement discriminated and should be set aside as being contrary tosection 15 of the Charter.

The Court dismissed the application, stating at paragraph 16: A distinction between a person registered as a voter in another electoral district and one not so registered is not, in my view, the sort of

classification addressed by s. 15 of the Charter. … The different treatment of registered and unregistered persons is not prohibited by s.15 of the Charter. [62] In Scott v Canada (Chief Electoral Officer), (BCSC), 71 DLR (4th) 516 [Scott], the Court considered a challengeto a provision in the Canada Elections Act, RSC 1985, c E-2, that required urban voters to be registered on the official electors’ list to beeligible to vote. The same requirement for registration did not apply to rural voters, who had the opportunity of registering at the pollson voting day.

The basis for the challenge was that the provision discriminated between urban and rural voters and was contrary tosection 15 of the Charter. The Court found at page 9 that while there was a distinction or differential treatment, it did not amount todiscrimination as the Applicant: …cannot be classified as a member of a “discrete and insular minority”.

The impugned legislation does not distinguish the [Applicant]from other persons on the basis of a personal characteristic which shares the similarities of historical, social, legal or politicaldisadvantage as those enumerated in s. 15. [63] In Orr v Peerless Trout First Nation, 2015 ABQB 5, 608 AR 205 [Orr], the Court considered the validity of a provision in theCustomary Election Regulations which prohibited a person who has a civil suit against the First Nation from running for office. One ofthe arguments made was that the prohibition violated

section 15 of the Charter. The Court rejected the argument, stating that noevidence had been lead or argument made to address the

section 15 analysis. The Court further stated at paragraph 22 that “I am unableto conclude that the ‘trait’ ascribed to the Applicant can be characterized as immutable.” This reference was made in relation to thestatement by the Supreme Court of Canada in Corbiere v Canada (Minister of Indian and Northern Affairs) (SCC),[1999] 2 SCR 203, 216 NBR (2d) 25, wherein the Court was considering the types of distinctions that might ground a discriminationallegation. D.i.3.

Conclusion on discrimination allegation [64] In conclusion, I dismiss the claim of discrimination for two reasons: firstly, the Applicant has failed to plead and present argumentsto support the finding; secondly, the distinction in the matter before me is akin to those in Re: Election Act (BC), Scott, and Orr. (ii).

Was the failure to provide Community Director ballots to voters in Ottawa a breach of proceduralfairness or natural justice? [65] The Applicant submits that the failure to provide Community Director ballots to voters in Ottawa was a breach of natural justice asit did not meet the legitimate expectations of the voters. In support of this argument the Applicant relies upon informational materialprovided by the CRO prior to the election.

The Applicant submits that the informational material provided by the CRO led voters inOttawa to believe they would have the opportunity to vote for Community Directors at Ottawa polling stations. [66] The jurisprudence relied upon by the Applicant relates to the participatory expectations of parties before administrative tribunalswho are tasked with deciding an issue. Specifically, the Applicant relies upon the case of Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193, which dealt with hearings before the Refugee Board.

The Court considered the nature of the hearing that applicants could expect given the nature of the decision being made. [67] It is difficult to apply this principle to the matter before me. The decision which is under review is the decision of the CRO to notprovide ballots for Community Director positions at Ottawa polling stations. Application of the “reasonable expectations” principle inthis context suggests that the Applicant, and perhaps others, had some reasonable expectation to participate in the making of thatdecision.

Clearly, that cannot be the case. [68] What the Applicant is actually alleging is a violation of fairness principles relating to the electoral process itself. The thrust of theargument is that the CRO exercised her discretion in an unreasonable manner. [69] The Election Regulations provide: 7.1 The Chief Returning Officer may establish electoral communities in order to facilitate the electoral process.

7.2 The Chief Returning Officer shall establish at least one polling station for every electoral community in the Qikiqtani Region. 7.3 Any location outside of the Qikiqtani Region that is deemed by the Chief Returning Officer to contain significant numbers of eligible voters shall comprise a polling station. [ 70 ] The CRO is entitled to deference in the manner in which she interprets and acts upon the Regulations. The Regulations are silent on whether Community Director ballots must be provided at polling stations outside of the Qikiqtani Region. Accordingly, it is the responsibility of the CRO to interpret the Regulations. She interpreted

article 7.3 in such a manner that a polling station could be established for the election of QIA executive members only. The evidence is that it would be logistically difficult to provide Community Director ballots to polling stations in Ottawa as it would not be possible to determine how many voters from a particular community might be in Ottawa on election day.

The choice to provide polling stations in Ottawa for the executive positions and not for the Community Director positions was felt to be a balance between enfranchising beneficiaries and maintaining the integrity of the electoral process. [ 71 ] In my view, this is within the range of reasonable options and deference must be shown to the decision. The application for judicial review on grounds of a breach of procedural fairness or natural justice is dismissed. V. REMEDIES [ 72 ] Despite having dismissed the application, some comment on the remedies sought is warranted. [ 73 ] The Applicant seeks two remedies.

One is an order in the nature of mandamus directing the CRO, in future elections, to operate Ottawa polling stations in a procedurally identical manner as other polling stations. [ 74 ] There are two concerns with the remedy sought. [ 75 ] First, the CRO is not duty bound to operate polling stations in Ottawa. If the Court were to make such an order, the CRO may well decide to not operate any polling stations in Ottawa. The goal of elections is to enfranchise people to the fullest extent possible while maintaining the integrity of the electoral process.

An order in the nature of that sought by the Applicant might well have the opposite effect, in that a decision may be made that no polling stations will be provided outside of the Qikiqtani Region. [ 76 ] Further, there is a question as to whether the Court even has the jurisdiction to make an order in the nature of mandamus in these circumstances. As noted by the Court in Re: Election Act (BC) , at paragraph 23 , mandamus “will not lie to compel the performance of anything but an imperative duty”.

Given that the CRO has no duty to establish polling stations in Ottawa or anywhere outside of the Qikiqtani Region, it is questionable whether the Court would have jurisdiction to direct the manner in which such polling stations will operate, should they be established. It is one thing to set aside a decision or action because it is invalid; it is quite another to direct that a specific decision or action be taken. VI. CONCLUSION 1. Is the QIA a public or private organization? Public. 2. If the QIA is a public organization,

i. was the failure to provide Community Director ballots to voters in Ottawa discriminatory? Standard of review is correctness, the failure to provide Community Director ballots was not discriminatory; ii. was the failure to provide Community Director ballots to voters in Ottawa a breach of procedural fairness or natural justice? Standard of review is reasonableness, the failure to provide Community Director ballots was not a breach of procedural fairness or natural justice. 3. If the answer to either of the two prior questions is “yes”, what is the appropriate remedy?

If I am wrong on either of the two earlier findings, the remedies sought by the Applicant are denied. 4. If the QIA is a private organization, i. did the organization breach its own rules; ii. was there a lack of procedural fairness; iii. was the decision made in bad faith? Unnecessary to answer given the finding on the earlier questions. VII. COSTS [ 77 ] There was an interim application in this matter that dealt with the issue of what documentation would be provided by the Respondent to the Applicant (known as “Settling the Record”).

The judge who heard that matter ruled that the Applicant was to pay costs to the Respondent regardless of the outcome of the ultimate hearing. If counsel are unable to agree on the costs for this aspect of the application, they may contact the trial coordinator to set the matter for a hearing. [ 78 ] The Applicant has not been successful in the ultimate hearing. However, given that there was a public interest element to the application, I decline to grant costs. Dated at the City of Iqaluit this 9th day of May, 2018

___________________ Justice S. Cooper Nunavut Court of Justice