Redfern v. Qikiqtani Inuit Association, 2015 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Redfern v. Qikiqtani Inuit Association, 2015 NUCJ 14 Date: 20150610 Docket: 08-15-007-CVC Registry: Iqaluit Applicant: Madeline Redfern -and- Respondent: Qikiqtani Inuit Association ________________________________________________________________________ Before: The Honourable Madam Justice Browne Counsel (Applicant): Teresa R.

Haykowsky Counsel (Respondent): Sylvie Molgat Location Heard: Iqaluit, Nunavut Date Heard: March 13, 2015 Matters: Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 (Application for Judicial Review) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Madeline Redfern [Redfern] has brought an Originating Notice of Application for judicial review asking for the following relief: 1. A declaration that the results of the Qikiqtani Inuit Association [QIA] election held on December 8, 2014 [Election] for the position of QIA Iqaluit Community Director [Director Position] are null and void; 2. An order in the nature of certiorari quashing the election results for the Director Position; 3. An order in the nature of mandamus that a new election for the Director Position be held on a date as to be directed by this Honourable Court; 4.

Such further relief as this Honourable Court may deem fit; and 5. An Order for costs [ 2 ] The Respondent, Qikiqtani Inuit Association, has brought an application for direction with regard to the production of documents. Redfern argued that QIA’s list was not complete and requested that a number of other documents be produced. The request for additional production was not part of QIA’s initial application.

Redfern was therefore required to file an application for production of additional documents and QIA given the opportunity to reply through written argument. [ 3 ] This decision will deal with the disclosure of documents. [ 4 ] This matter was complicated, lengthy, and hotly contested. It should not have been returnable in morning chambers. In fact, we dealt with it in morning chambers and again later in the week, taking significant time out of the court docket to try and address these matters quickly.

It was not possible and written submissions were eventually required. [ 5 ] Redfern was a properly nominated candidate running in the QIA election for the City of Iqaluit Community Director position. QIA is a “Designated Inuit Organization” under

Article 39 of the Agreement Between The Inuit Of The Nunavut Settlement Area And Her Majesty In Right Of Canada, 25 May 1993 (Ottawa, ON: Published under the joint authority of the Tungavik and the Hon. T.

Siddon, Minister of Indian Affairs and Northern Development, 1993) [Nunavut Land Claims Agreement]. [ 6 ] The QIA elections were held on December 8, 2014, and there were two candidates running for Iqaluit Community Director. [ 7 ] The argument put forward to upset the election relates to the Ottawa polling stations and the ability or inability of Ottawa voters to vote for the Iqaluit Community Director. [ 8 ] Redfern has brought an application for judicial review for the relief claimed above. [ 9 ] Rule 598 of the Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 [Nunavut Rules of Court] requires a tribunal to provide documents upon an application for judicial review.

This is an unusual application for judicial review and therefore the only relevant consideration in terms of the production of documents is that the record should consist of “All things touching the matter.” Rule 598

(1) On receiving an originating notice endorsed in accordance with rule 595, the person in respect of whose decision or act relief is claimed shall return forthwith to the Clerk …

(

d) all things touching the matter… II. SUBMISSIONS A. Nunavut Rules of Court, s. 598(1)(d) “All things touching the matter” [ 10 ] As in the case of IMS Health Canada, Ltd. v Information and Privacy Commissioner, 2005 ABCA 325 at para 35 , 53 Alta LR (4th) 201 , the matter is “determined by what has been put in issue by the originating notice”. There should be a broad

interpretation of which documents touch the matter to ensure that the applicant can properly review the decision in question. B. Applicant’s arguments [ 11 ] In the Originating Notice, Redfern argues that the voters in Ottawa were not able to vote for the Iqaluit Community Director position. Redfern argues that representations were made to candidates and voters that voting procedures would be the same in Ottawa and Iqaluit.

Further, that the QIA Election Regulations were not followed regarding the number of ballots available for various positions at each polling booth. [ 12 ] Finally, Redfern argues that the administration of the Ottawa presidential election is relevant to properly assess if there was a difference in the administration of the presidential election and the Iqaluit Community Director election and therefore resulting in unfairness. C. Respondent’s arguments [ 13 ] QIA argues that the issue before the court is the Iqaluit Community Director election only as prescribed by the applicant’s Originating Notice and Affidavit.

QIA further argues strongly that the issue of whether or not a QIA election is subject to a judicial review is a live issue and the production of documents should be delayed until that issue has been determined. III. ANALYSIS [ 14 ] The documents required to be produced must relate to the election of the Iqaluit Community Director.

The election for Iqaluit Community Director was run at the same time as the elections for president and the other community directors in the Qikiqtaaluk region of Nunavut. [ 15 ] In considering what documents should be produced, it is important to recognize the fundamental issue of secret ballots as well as to recognize that the presidential election is not challenged in this action, nor are any of the other community director positions challenged in this application. [ 16 ] There must be caution therefore not to require documents to be produced that relate to those elections, nor documents that might identify any potential voters. [ 17 ] Agreement on the production of certain documents is set out at page 7 of Redfern’s written argument and at paragraph 20 of the QIA written argument.

For clarity, the agreed documents are as follows: • Box #5 (Election Ballots – Community Directors) o Iqaluit Community Director Vote ? Advance Poll Ballots

? Voting Day Rejected Ballots ? Ballots for Madeleine Redfern and Simon Nataq o QIA Certificates and Nomination Forms (insofar as they may relate to the Iqaluit community director election only) • Box #6 (Voters Lists & Forms) – QIA Voters Lists, Declarations and Forms o Iqaluit ? Voters List (2) ? Voter Declaration of Eligibility Forms ? Proxy Forms and Declaration of Proxy Voters ? Records of Votes Cast – Advance (Community Director only) ? Tally Sheets and Certificate of Election Results (Director) – Initial Count ? Tally Sheets for (Initial) Director Count ?

Tally Sheets (Director) – Recount – signed o Full Nunavut-wide (NTI/RIA) Voters Lists ? Iqaluit (x2) IV. CONCLUSION [ 18 ] For simplicity of understanding I have set out in the column entitled “Document Proposed”, the documents requested by Redfern and provided my ruling in the column entitled “Ruling”. Document Proposed Ruling Record of Votes Cast (President and Community Director) in Iqaluit The record of votes cast in Iqaluit regarding President or Iqaluit Community Director are not relevant.

The issue before the Court revolves around votes cast in Ottawa All internal and external communication and records which relate to the Election procedure, including:

a) all communications, deliberations, decisions in relation to the voting process, including polling locations and the setting up of same Does not touch upon the matters in issue and therefore need not be produced

b) all communication with candidates and the public with respect to the election procedure, the Iqaluit Community Director Election, and the QIA President Election in Ottawa and Iqaluit Should form part of the record but only as it relates to the Iqaluit Community Director election in Ottawa

c) all communications and materials that relate to the training of Election staff on election procedures Should form part of the record as it relates to the training of staff in Ottawa only

d) all communication that relates to the Ottawa polling places Should be produced

e) all communication that relates to the proxy voting system Should be produced

f) all guiding and constating documents relevant to the Election procedure A general request is too broad and does not touch the matters in issue Copies of any questions and/or complaints that relate to the Iqaluit Community Director Election, Ottawa polling place or the proxy balloting system, and any related documentation. Should properly be produced [ 19 ] If any of the produced documents contain names of individual voters it would be inappropriate for any of those voters to be contacted by either party.

[ 20 ] In making the rulings above, no consideration whatsoever has been given to the similar application made by Mikidjuk Akavak requesting a judicial review of the Presidential Election. [ 21 ] It is an interesting issue as to whether or not an election of individuals pursuant to the by-laws of an Inuit land claims organization is subject to judicial review.

That issue will be dealt with in the course of time. [ 22 ] The issue of document production has now been addressed. [ 23 ] It was appropriate for QIA to seek the assistance of the court regarding the production of election documents because of the very important issues of secret ballot and the nature and specificity of the application. [ 24 ] Redfern should have brought her application for further document production at the time of the original morning chambers application.

It would have then been obvious that the matter should have been set for a special chambers hearing for perhaps one hour. [ 25 ] Costs of this application will be paid by Redfern at the appropriate column once the matter has been resolved. Dated at the City of Iqaluit this 10th day of June, 2015 ___________________ Justice B.A. Browne Nunavut Court of Justice Nunavut Court of Justice