TAYKWA TAGAMOU NATION Applicant v. IRENE LINKLATER, 2020 FC 220

Date: 20200207 Docket: T-1687-18 Citation: 2020 FC 220 Ottawa, Ontario, February 7, 2020 PRESENT: The Honourable Madam Justice Strickland BETWEEN: TAYKWA TAGAMOU NATION Applicant and IRENE LINKLATER Respondent JUDGMENT AND REASONS [ 1 ] An election review panel (“Review Panel” or “Panel”), effected pursuant to

section 19.2 of the Taykwa Tagamou Nation Custom Election Code (“TTN Custom Election Code” or “Code”), decided an appeal brought by Ms. Irene Linklater, the Respondent herein, of the Taykwa Tagamou Nation (“TTN”) Chief and Band Council election held on October 12, 2017 (“2017 Election”). The Review Panel concluded that the 2017 election process violated provisions of the TTN Custom Election Code and it ordered a new election. TTN, the Applicant before this Court, brings this application for judicial review of the Review Panel’s decision pursuant to s.18.1 of the Federal Courts Act , RSC 1985, c F-7 .

Background [ 2 ] The Applicant, TTN, is an Indian Band within the meaning of the Indian Act , RSC 1985, c I-5 . TTN’s elections are governed by the TTN Custom Election Code, which was effected on March 12, 2011. On October 12, 2017, TTN held an election for the positions of Chief, Deputy Chief, Youth Councillor, and three Councillors. [ 3 ] The Respondent, Irene Linklater, is a member of TTN. She unsuccessfully ran for the position of Chief in the 2017 Election. The majority of votes, being 73 of the 222 valid votes cast for the Chief’s position, were cast in support of candidate Daniel Bruce Archibald.

The Respondent received 22 votes, placing fifth of the seven qualified candidates who ran for the Chief’s position. [ 4 ] The Respondent commenced an appeal of the 2017 Election pursuant to s 19.2 of the TTN Election Custom Code. On appeal, she alleged 17 distinct violations of the Code. The newly elected Chief and Council responded to the appeal, relying on and adopting the facts and submissions of the Electoral Officer, Mr. Vaughn Johnston, being his post-election Final Election Report and a Briefing Note he prepared in response to the appeal.

Chief and Council were of the view that the TTN Custom Election Code was followed in the 2017 Election. [ 5 ] Pursuant to

section 19.1 of the TTN Custom Election Code, an election review panel is to be comprised of three persons, two of whom are Aboriginal, one of whom is a lawyer, and none of whom are members of TTN.

Section 19.3 of the Code sets out the procedure for the selection of the Review Panel, being that the candidate who appealed shall select one Aboriginal member, the electoral officer shall select the lawyer, and members of the newly elected (putative) Band Council shall select the remaining Aboriginal member of the panel. That selection process was followed in the appointing of the Review Panel. The Panel held a hearing on July 19, 2018 and released its written decision on August 21, 2018. This is the judicial review of that decision. [ 6 ] The Chief and Council elected on October 12, 2017 continue to govern TTN.

Decision under review [ 7 ] The Review Panel noted that the matter before it was an appeal of the 2017 Election, which had been conducted under the TTN Custom Election Code. Further, that the applicant therein, Ms. Linklater, alleged that there had been 17 violations of the Code in the 2017 Election and requested that a new election be held because of the severity of the violations.

Conversely, the elected Chief and Council of TTN submitted that the 2017 Election was conducted diligently under the Electoral Officer’s direction, and relied on and adopted the facts and submissions in the Electoral Officer’s Final Election Report and Briefing Note. TTN Chief and Council sought to have the appeal dismissed. [ 8 ] The Review Panel was of the view that the issues in the appeal could be stated as follows: 1 . Does Ms. Linklater’s allegations of violations of the TTN Election Code have merit? 2 .

If the allegations have merit, were they minor procedural irregularities dealt with under the TTN Custom Election Code and by the Electoral Officer’s authority, discretion and ability? 3 . Did the allegations have an impact or change the substance outcome of the 2017 Election?

4 . Is it in the best interest of TTN to order a new election? [ 9 ] In its analysis, the Review Panel individually addressed each allegation, TTN Chief and Council’s response to that allegation, set out the relevant Code provision, and then stated its finding. [ 10 ] The Review Panel found 14 of the 17 allegations to be without merit.

Because the Respondent did not seek judicial review of the Review Panel’s decision and because and the Applicant takes issue only with the remaining 3 findings that were found to have merit, it is not necessary in these reasons for me to address the other 14 allegations and the Review Panel’s findings pertaining to each of them. For the purposes of these reasons, it is sufficient to say that the allegations that were found to be without merit involved: - An allegation that

section 4.0 of the Code was violated because the Electoral Officer inappropriately delegated election duties to an employee of the Band, the Executive Director, Ms. Sandra Linklater, and that the Executive Director was in a conflict of interest; - An allegation that

section 6.1(

d) of the Code was violated because Ms. Bertha Cheena, a candidate running for election in the position of Chief, was inappropriately disqualified; - An allegation that

section 9.2 of the Code was violated because the TTN annual general meeting (“AGM”) held on September 28, 2018 was not an all candidates meeting; - An allegation that

section 9.3 of the Code was violated because announcements concerning the election process were not made at the AGM; - An allegation that

section 9.4 of the Code was violated because the Electoral Officer was not present at the AGM; - An allegation that

section 10.1 of the Code was violated because it was uncertain if Mr. Michael Gauthier’s withdrawal of his candidacy as a councillor was done in conformity with that provision; - An allegation that

section 11.1 of the Code as violated because one ballot instead of four separate ballots were utilized; - An allegation that

section 11.2 of the Code was violated because Ms. Cheena’s name and that of another candidate who had withdrawn from the election were not blocked out on the ballots; - An allegation that

section 11.3 of the Code was violated as off-reserve Band members were not made aware that a candidate had withdrawn; - An allegation that

section 11.4 of the Code was violated because the address for mail-in ballots was incorrect; - An allegation that

section 11.6 of the Code was violated because the procedure for releasing mail in voting packages was not followed; - An allegation that

section 12.9 of the Code was violated because the procedure for candidates’ agents was not followed, in that Ms. Sandra Linklater was a scrutineer forand a candidate for a councillor position, Mr. Bruce Archibald, and because Mr. Archibald was present when the ballots were counted; - An allegation that

section 13.3 of the Code was violated because the Electoral Officer did not verify the ballots before they were placed in the ballot box; and - An allegation that

section 16.0 of the Code was violated because the posting of election results was not in conformity with that provision. [ 11 ] This left 3 allegation of violations of the Code which the Review Panel found did have merit – that is, violations of sections 9.6, 12.2 and 12.6. [ 12 ] The first of these allegations was that

section 9.6 of the Code was violated because the election was held in a shorter timeframe than was required. That

section states: 9.6 Elections will be held fifteen (15) days after the AGM. Candidates must cease campaigning 24 hours prior to the commencement of the election. [ 13 ] The Review Panel found that the election was held fourteen, rather than fifteen, days after the AGM. [ 14 ] Having made that finding, the Review Panel then considered whether this was a minor procedural irregularity dealt with under the TTN Custom Election Code and by the Electoral Officer’s authority, discretion and ability.

The Review Panel noted the position of TTN Chief and Council, being that the election date is set in advance of the AGM and that the AGM is then set. The Panel also noted that the Code does not stipulate how many days the advance polls can be set in relation to the AGM, or the date of the election. The Review Panel noted that no information was provided as to why the AGM date was set only 14 days before the election, rather than the required 15 days, nor why advance polls were set only 12-13 days from the AGM rather than 15 days, or who set the dates.

Accordingly, the Panel could not determine whether these were procedural errors in setting the dates or if there were other reasons determining the dates. It stated, however, that it assumed that the dates were set by the former TTN Chief and Council. The Review Panel found that

section 9.6 of the TTN Custom Election Code clearly states the AGM is to be held 15 days before the election and that the 15 day time period is repeated in the Code’s Election Time Table. Further, that the Code contains no wording allowing the 15 day timeframe to be changed. Therefore, this error could not be dealt with under the Code. Similarly, the Code contained no provision by which the Electoral Officer could rectify an error concerning the setting of the AGM, election or advance polls dates. In the result, the Review Panel found that the allegation was not dealt with under the Code or the Electoral Officer’s authority, discretion and ability.

[ 15 ] The Review Panel then considered whether the violation of

section 9.6, holding the election 14 rather than 15 days after the AGM, had an impact on or changed the substantive outcome of the 2017 Election. The Review Panel noted that no information was provided to the Panel indicating that candidates must attend and participate in the AGM. And, in that regard, the wording of

section 9.2 is permissive, not mandatory. The Review Panel also noted that no information was provided to it indicating that all Band members attend the AGM to hear the candidates’ speeches or that the AGM is the only opportunity for Band Members to hear from the candidates. The Review Panel recognized that the AGM appeared to be an important opportunity for candidates in attendance to present their speeches, but found that the AGM was not the only opportunity for candidates to present, or for Band members to hear from the candidates.

The Review Panel also noted that TTN members receive notice of the election, and which candidates are running, 45 days before the election as required by the Code. Therefore, the AGM is essentially an opportunity for members who attend to hear from candidates who participate and it is not the process by which members are advised about the election and what candidates are running.

Given this, the Review Panel found that holding the AGM one day short of the required timeframe as set out in the Code did not have an impact or change the substantive outcome of the 2017 Election. [ 16 ] The second allegation that the Review Panel found to have merit concerned

section 12.2 of the Code. Ms. Linklater alleged that the Code states that two polling stations will be held, one in TTN and one in Moosonee. However, a third polling station was held in Cochrane in violation of the Code. [ 17 ] The Review Panel noted the position of TTN Chief and Council, being that TTN advised the Electoral Officer that there would be a main poll on the day of the election and two advance polls, one in Moosonee and one in Cochrane. The Panel also noted Chief and Council’s position that, while the Code does state that there will be two polls, it could be interpreted such that there can be more than two polling stations. The Review Panel referenced

section 12.2, which states: 12.2 There will be two (2) polling stations: One on the Taykwa Tagamou Nation Territory (Reserve #69B located in Brower Township) and one in Moosonee, Ontario. The preferred location for the polling station in Moosonee will be at the Friendship Center. [ 18 ] The Panel found that

section 12.2 clearly states that there will be two polling stations and does not include any wording that may be interpreted to permit additional polling stations. [ 19 ] Having found that there was merit to the allegation that

section 12.2 of the TTN Custom Election Code was violated, the Review Panel next considered whether this was a minor procedural irregularity. The Review Panel noted the position of TTN Chief and Council that it was TTN who advised the Electoral Officer that there would be three polls and stated that the Panel understood this to mean that it was the decision of TTN to have a poll the day of the election and two advance polls and that this was not the decision of the Electoral Officer. The Panel also noted that it was not provided with information as to why TTN made that decision and that Ms.

Linklater advised that the 2017 Election was the first time TTN had advance polls and a poll at Cochrane. The Review Panel found that

section 12.2 of the TTN Custom Election Code clearly states that there will be two polling stations, one on TTN and one in Moosonee, and that the Code does not include any wording stating that more than two polling stations or that advance polls can be held. This error, therefore, could not be dealt with under the Code. Further, it was TTN that made the decision to use three polls, and not the Electoral Officer, and the Code does not contain any provision or authority to permit the Electoral Officer to rectify an error concerning polling stations. Based on this, the Review Panel found that the allegation as to a violation of

section 12.2 of the Code was not dealt with under the Election Code or the Electoral Officer’s authority, discretion and ability. [ 20 ] Having reached that conclusion the Review Panel next asked itself if the violation of

section 12.2 had an impact on or changed the substantive outcome of the 2017 Election. The majority of the Panel concluded that holding three polling stations, rather than two, had an impact or changed the substantive outcome of the election. The third Panel member disagreed. [ 21 ] The third allegation that the Review Panel found to have merit was that

section 12.6 of the TTN Custom Election Code was violated because advance polling stations were held in Moosonee and Cochrane. The Review Panel noted the position of TTN Chief and Council and that

section 12.6 states: 12.6 On polling day, all polling stations are open at 8:00 a.m. (local time), and must remain open until 8:00 p.m. of the same day. [ 22 ] The Panel found that the Code did not provide for advance polling stations to be held, and therefore, that there was merit to the allegation of a violation of

section 12.6. As to whether this was a minor procedural irregularity, the position of TTN Chief and Council was that the poll held on October 12, 2017 – election day – was open from 8:00 am to 8:00 pm in accordance with the Code. Further, that the advance polls in Moosonee and Cochrane were held prior to October 12, 2017 and had to have been open 8:00 am to 8:00 pm if they were held on the same day as the polling day of October 12, 2017.

The Review Panel noted that it was not provided with any information that the advance polls were not held between 8:00 am and 8:00 pm and it assumed that those polls adhered to that timeframe. However, the allegation was that the Code did not stipulate that advance polls could be held. The Review Panel noted that it had already addressed the issue of advance polls in the context of its

section 12.2 findings and reached the same conclusion concerning the

section 12.6 violation, being that it was also was not dealt with by the Code or by the Electoral Officer’s discretion, authority, and ability. [ 23 ] The Panel then assessed whether the violation had an impact or changed the substantive outcome of the 2017 election. Again, the Panel was divided in its conclusions. The majority of the Panel concluded that holding advance polling stations had an impact or changed the substantive outcome of the election.

The third Panel member disagreed. [ 24 ] Finally, having found that the sections 12.2 and 12.6 violations had an impact or changed the substantive outcome of the 2017 Election, the Panel asked itself whether it was in the best interests of TTN to order a new election. Splitting along the same lines, two Panel members found that it was in the best interest of TTN to order a new election. The third Panel member disagreed. [ 25 ] The majority of the Panel found that the 2017 Election was held in violation of the TTN Custom Election Code and ordered that a new election be conducted.

The Panel member in the minority would have dismissed the appeal.

TTN Custom Election Code [ 26 ] The introduction to the Code notes that the development of the written electoral code and procedures will help resolve the dilemma of unwritten customary governance practices. The written Code and procedures will serve as a guide and ensure that future misunderstandings can be resolved by referring to written policies. The introduction states that, as was evidenced from the most recent disputes over election matters, there can be many

interpretations and variations of the unwritten electoral practices; therefore, having a comprehensive and written electoral code and procedures will result in clear resolution to electoral issues for TTN. [ 27 ]

Section 19 deals with the Election Review Panel: 19.1 An Election Review Panel shall be comprised of three Persons, at least two of whom are Aboriginal and one of whom is a lawyer, who are not members of TTN. 19.2 Within thirty (30) days after an election, a candidate may apply (the “Applicant”) to have an Election Review Panel created for the disposition of any matter that is alleged to be in violation of this Code. 19.3 The procedure for that selection of the Election Review Panel is as follows:

a) The candidate who has applied shall select one aboriginal member to the Election Review Panel.

b) The Electoral Officer shall select the lawyer to be appointed to the Election Review Panel.

c) The members of the newly elected (putative) Band Council shall select one aboriginal member to the Election Review Panel.

d) All candidates shall be advised in writing that an application for review has been filed. 19.4 Once an application is submitted to the Electoral Officer, the Election Review Panel shall complete its review within 30 days of receiving a written notice of appeal. It shall give its decision to the applicant and the Electoral Officer and will provide written reasons upon request. The Election Review Panel will allow the Electoral Officer, the newly elected Council, and the Applicant the opportunity to provide written representations.

Written representations must be provided 15 days after the notice of appeal is commenced. 19.5 An Election Review Panel shall from time to time determine its own procedures. 19.6 An Election Review Panel has the exclusive jurisdiction to review any matter under this by-law. 19.7 The Election Review Panel may award costs where it appears that the Application was frivolous and without merit.

Such costs, if awarded, will be payable to Taykwa Tagamou Nation unless the Panel orders otherwise. 19.8 An appeal of a decision of the Election Review Panel lies by way of application for judicial review to the Federal Court of Canada.

Issues [ 28 ] The Applicant submits that the substantive issue before this Court is whether the Review Panel’s decision to order a new election was reasonable based on the evidence before it. [ 29 ] The Respondent submits that the Panel’s written decision is unclear, however, the Panel was procedurally and substantively fair to the Applicant and deserves a wide degree of deference to interpret and comprehend matters of which local judicial notice can be taken. [ 30 ] In my view, there is one issue arising in this judicial review, being whether the Panel’s decision was reasonable.

Standard of review [ 31 ] Subsequent to the parties filing their written submissions, the Supreme Court of Canada issued its decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 (“ Vavilov ”), which revisited the standard of review applicable to administrative decisions. As Vavilov is relevant to the both the applicable standard of review and to the issue of deference raised by the Respondent, I invited counsel, when appearing before me, to address the decision.

Standard of Review - merits [ 32 ] In their written submissions the parties agreed that the Review Panel’s decision on the merits attracted the standard of review of reasonableness as it involves questions of mixed fact and law ( Lavallee v Ferguson , 2016 FCA 11 at para 19 ; Pastion v Dene Tha’ First Nation , 2018 FC 648 at paras 21 , 29 (“ Pastion ”); Lewis v Gitxaala Nation , 2015 FC 204 at paras 13-15 ; Dunsmuir v New Brunswick , 2008 SCC 9 at paras 51 , 53).

They also agreed that Indigenous decision makers are entitled to deference when interpreting and applying custom election codes ( Pastion at paras 21-27 ; Commanda v Algonquins of Pikwakanagan First Nation , 2018 FC 616 at para 19 (“ Commanda ”)). [ 33 ] When appearing before me, the Applicant submitted that Vavilov did not change its position that reasonableness is the applicable

standard of review. Counsel for the Respondent also accepted that reasonableness remains the appropriate standard of review for the merits of the Review Panel’s decision. I agree. [ 34 ] Vavilov established a presumption that reasonableness is the applicable standard of review whenever a Court reviews an administrative decision ( Vavilov at paras 16, 23, 25 ). That presumption can be rebutted in two types of situations.

The first being where the legislature explicitly prescribes the applicable standard of review or where it has provided a statutory appeal mechanism from an administrative decision to a court thereby signalling the legislature’s intent that the appellate standards apply when a court reviews the decision. The second being when the rule of law requires that the standard of correctness be applied.

This will be the case in certain categories of questions, namely, constitutional questions, general questions of law of central importance to the legal system as a whole, questions regarding jurisdictional boundaries between administrative bodies, or any other category that may subsequently be recognized as exceptional and also requiring review on the correctness standard ( Vavilov at paras 17, 69 ). [ 35 ] The majority in Vavilov held that, " “it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review” " ( Vavilov at para 30 , emphasis original). [ 36 ] Here, the Review Panel was not delegated its decision making authority from a federal or other statute.

However, this Court has previously recognized that a First Nation’s capacity to make laws concerning matters of leadership and governance are not derived from the Indian Act or other statutory power: " “[r]ather it is the result of the exercise of the First Nation’s aboriginal right to make its own laws concerning governance.” " ( Gamblin v Norway House Cree Nation Band Council , 2012 FC 1536 at para 34 ). In my view, TTN, as a matter of self-governance, effected the TTN Custom Election Code.

By way of the Code, TTN delegated authority to election review panels to address appeals of elections that allege violations of the Code and make determinations in that regard. Accordingly, the presumptive reasonableness standard applies because the TTN Custom Election Code has delegated authority to election panels to determine election appeals and because none of the circumstances exist which might rebut that presumption. [ 37 ] Council for the Applicant noted that

section 19.8 of the Code states that, " “[a]n appeal of a decision of the Election Review Panel lies by way of application for judicial review to the Federal Court of Canada.” " She submits, and I agree, that this is not a circumstance amounting to a statutory appeal mechanism of review panel decisions to a court, as identified in Vavilov .

While the wording does reference an " “appeal” " , the wording is also clear that this relief is by way of judicial review to this Court. [ 38 ] The Applicant is also of the view that significant deference is still owed to Aboriginal administrative decision makers, such as the Review Panel, based on their experience and expertise, as previously found in cases such as Pastion (at para 22 ) and Commanda (at para 19 ).

However, that this Court need make no determination in that regard because, on the facts of this case, no amount of deference could save the fatally flawed Review Panel decision as it lacked justification, intelligibility and transparency. [ 39 ] I agree that it is not necessary for this Court to delve into a comparative analysis of the deference owed, previously based on the acknowledged expertise of administrative decision makers as an aspect of the determination of the appropriate standard of review, with the requirements of Vavilov that a reviewing court consider the decisions of an administrative decision maker in their own particular contextual constraints, review its reasons in light of the record and with due sensitivity to the administration setting within which the reasons were given, and with respectful attention to a decision maker’s demonstrated experience and expertise ( Vavilov at paras 31, 88- 98 ). [ 40 ] This is because, at the end of the day, regardless of any level of deference owed as related expertise, " “[w]here a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility” " ( Vavilov at para 98 ).

For the reasons that follow, that is the circumstance in this case. Standard of review - procedural fairness [ 41 ] In Mission Institution v Khela , 2014 SCC 24 (at para 79 ) and in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 (at para 43 ) the Supreme Court found that that questions of procedural fairness are reviewed on a correctness standard. In Vavilov , the Court does not explicitly state whether questions of procedural fairness will continue to be reviewed on a correctness standard.

However, in establishing reasonableness as the presumptive standard of review for most questions on judicial review, the Supreme Court’s framework was concerned with circumstances where the merits of an administrative decision are challenged ( Vavilov at para 16 ).

And, at paragraph 23, the Supreme Court indicated that a challenge on the merits is not one that relates to natural justice or procedural fairness: 23 Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law.

The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness. [ 42 ] On this basis, in my view, prior jurisprudence that establishes correctness as the standard of review for questions related to procedural fairness is still authoritative. [ 43 ] That said, I disagree with the Respondent’s submission that the Court must consider " “procedural issues” " on the correctness standard, including questions of standing. Standing was not an issue before the Review Panel and the Panel made no determinations in that regard.

Accordingly, the Court is not reviewing the decision of the Review Panel with respect to standing. Rather, standing is a procedural issue raised by the Respondent in this Court. Nor does Cowessess First Nation no 73 v Pelletier , 2017 FC 692 (“ Cowessess ”), referenced by the Applicant, support her submission that issues of standing attract a correctness standard of review. Cowessess merely stated that the standard of the review in that case was agreed to be reasonableness, except for questions of procedural fairness (at para 9).

The Court then dealt with the preliminary standing issue as a procedural issue – not an as an issue of procedural fairness – and it did not apply a standard of review to that procedural issue.

[ 44 ] Finally, I note that the Supreme Court in Vavilov also addressed how a reasonableness review is to be conducted by a reviewing court (at paras 73-145). In that regard, it held that " “[i]n order to fulfill Dunsmuir’s promise to protect ‘the legality, the reasonableness and the fairness of the administrative process and its outcomes’, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28.” " ( Vavilov at para 12 ).

The reviewing court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified ( Vavilov at para 15 ). Preliminary Issue - Standing [ 45 ] The Respondent makes two submissions which she frames as matters of standing. The first of these is that the impugned Chief and Council do not have standing to bring the judicial review application on behalf of TTN without a prejudicial conflict of interest. The second concerns the standing of the Respondent herself. i.

Standing of TTN [ 46 ] The Respondent’s written submissions accept that TTN has a direct interest in the outcome of this application and that an appeal of the Review Panel’s decision is permitted by way of an application for judicial review to this Court pursuant to

section 19.8 of the TTN Election Code. She also concedes that TTN has standing. However, she submits that it is less clear that the impugned Chief and Council have standing on behalf of TTN.

The Respondent submits that this is because there was an unreasonable, self-serving delay in having the Review Panel constituted to hear the appeal; the TTN Custom Election Code is silent as to what occurs before the appeal process is concluded and as to who pays for the Panel; and, because past practice and a reasonable expectation are that the previous Council would remain in place until a pending appeal is resolved. [ 47 ] In this regard, the Respondent references sections 17.2, 19.2 and 19.4 of the Code and asserts that the 8-month delay between the election and the hearing of the appeal is an unacceptable delay by the impugned Chief and Council, and that prejudice to her should be inferred.

Further, that ignoring the Review Panel’s decision and failing to seek a stay of its decision is the equivalent of the impugned Chief and Council being in contempt of the decision. Accordingly, " “this bears consequences on the equity of considering the relief requested” " by the impugned Chief and Council on behalf of TTN (citing Ledoux v Gambler First Nation , 2019 FC 380 (“ Ledoux ”)).

The Respondent also submits that " “challenging an election outcome appeal, led by the Band and paid with Band funds, results in a conflict of interest due to the personal interests of the impugned Chief and Council to remain in power.” " She contends that there is no incentive for a band member to bring a legitimate appeal if the impugned Chief and Council could delay the appeal and fund their own application at the Federal Court; she submits that cannot be the intended outcome of the TTN Custom Election Code. [ 48 ] In my view, the issues of delay in constituting the Review Panel, alleged prejudice and cost implications of the application are not issues of the standing of the impugned TTN Chief and Council before this Court.

Delay [ 49 ] While the Code does state that that an appeal must be brought within 30 days of an election (section 19.2) and that once an application is submitted to the Electoral Officer that the Review Panel shall complete its review within 30 days of receiving a written notice of appeal, it is otherwise silent as to the timing of the appeal process. The Respondent refers to

section 17.1 of the Code, which states that ballots are to be retained for a 30 day period and, if there are no successful appeals, will be destroyed after 30 days. The Respondent suggests that it can be inferred from this and

section 19.4 that review panels are to be convened within 30 days or as quickly as practical. Here, there was a delay of 8 months. [ 50 ] Be that as it may, any delay in bringing the appeal does, not in and of itself, touch on standing before this Court. [ 51 ] Standing is dealt with in Rule 303(1) (

a) of the Federal Courts Rules , SOR/98-106 (also see s 18.1(1) of the Federal Courts Act ). Rule 303(1) (

a) states that an applicant shall name as a respondent every person who is directly affected by the order sought in the application, other than the tribunal in respect of which the application is brought. [ 52 ] In Forest Ethics Advocacy Assn v Canada (National Energy Board) , 2013 FCA 236 (“ Forest Ethics ”) Justice Stratas held that when considering Rule 303(1) (a), the question is whether the relief sought in the application for judicial review will affect a party’s legal rights, impose legal obligations upon it, or prejudicially affect it in some way ( Forest Ethics at para 21 ).

If so, the party should be added as a respondent.

If that party was not added as a respondent when the notice of application was issued, then, upon motion under Rule 104(1)(b), it should be added as a respondent ( Forest Ethics at para 21 ; also see Gitxaala Nation v Canada , 2016 FCA 187 at para 83 as to parties with direct standing). [ 53 ] Thus, whether there was a delay in constituting the Review Panel is not an issue of standing. [ 54 ] Indeed, the Respondent’s submission on this point are not concerned with standing, but suggest that prejudice should be inferred and the relief sought by the Applicant before this Court should be mitigated, in an unspecified way, by the alleged prejudice to the Respondent caused by the delay.

She also asserts that the delay was deliberate and self-serving. However, the Respondent’s affidavit, affirmed on May 21, 2019 and filed in response to the application for judicial review, merely states that she objected to the amount of time it took for the Review Panel to be appointed but that her objections did not lead anywhere. She offers no evidence as to the reason for the delay, to establish that it was self-serving or how it prejudiced her.

Nor is the suggestion that the relief sought by the Applicant should be impacted by the delay in effecting the Review Panel further developed in the Respondent’s submissions. Contempt

[ 55 ] The Respondent also asserts that failing to seek a stay of the Review Panel’s decision is the equivalent of the Chief and Council being in contempt of that decision. Again, this is not an issue that affects the Applicant’s standing before this Court. [ 56 ] It is true that the Review Panel decision, dated August 21, 2018, was that a new election was to be held and that, to date, the impugned Chief and Council have not sought a stay of that decision pending the outcome of this application for judicial review. Nor have they scheduled a new election while this application for judicial review is pending.

However, it is important to consider this in the context of the procedural history of this matter. [ 57 ] TTN filed its application for judicial review on September 20, 2018, being within 30 days of the Review Panel decision. By Order of the same date and pursuant to Rule 384 of the Federal Courts Rules , in accordance with

Section A (Dispute Resolution thought Dialogue) of

Part III of the Practice Guidelines for Aboriginal Law Proceedings (April 2016), the matter was immediately continued as a specially managed proceeding. Justice Mandamin was assigned as the Case Management Judge. By letter of October 4, 2018, counsel for TTN wrote to the Court advising that the decision calling for a new election had created uncertainty and confusion for members of TTN. As such, counsel requested a case management conference be convened as soon as possible to discuss a motion to stay the order for a new election or, in the alterative, to

schedule an expedited hearing date. A case management conference call was held in October 2018 during which the Applicant proposed that the judicial review take place early in January. Justice Mandamin directed that a date would be scheduled and that, in the meantime, that the Applicant, in consultation with the Respondent, produce a timeline. The Applicant prepared a timeline that Justice Mandamin accepted.

However, the Respondent advised in January 2019 that she was still self represented, and that it was unfair that she had to bear that cost as well as various other matters such as adding the Electoral Officer as a party to the application. She requested an extension of time to file her affidavit in response and a case management conference to discuss this request. [ 58 ] A case management conference call was held in February 2019. The Respondent was permitted to serve and file her affidavit on or before March 31, 2019.

The Applicant was directed to prepare a schedule, with the consent of the Respondent, for further steps in the proceeding on an expedited basis. The parties were unable to come to an agreement until April 29, 2019 when counsel for the Applicant advised the Court that the Respondent had retained counsel and that agreement had been reached on the form and content of a draft order, which was provided for the Court’s consideration. Justice Mandamin issued his Order on May 10, 2019 with the agreed timeline and ordered that the hearing was to take place on an expedited basis if the Court was able to accommodate this.

Counsel jointly proposed hearing dates in August or September of 2019. By Order dated July 23, 2019, the hearing of the judicial review was set down to be heard on September 3, 2019.

The Respondent sought a further extension of the time to serve and file her Respondent’s record and, by direction of Prothontary Furlanetto and with the consent of the Applicant, the extension was granted to August 8, 2019. [ 59 ] The matter was convened for hearing on September 3, 2019, but was adjourned pending confirmation from the Review Panel as to what materials they considered in making their decision or the filing of its record in that regard. Once this was done the parties were to seek a hearing date as soon as possible.

By letter of October 16, 2019, counsel for the Applicant confirmed compliance with that Order and asked that the hearing date be scheduled on an expedited basis. The application for judicial review was set down to be heard on January 8, 2020. [ 60 ] The above procedural history is significant as it demonstrates that the Applicant has, since bringing its application for judicial review, been alert to the need to have the matter dealt with as expeditiously as possible and has attempted to do so.

Further, the Applicant raised the possibility of seeking a stay of the Review Panel decision in the event that this could not be achieved. The Court’s file does not indicate that the Respondent or her counsel at anytime took issue with the time taken to have the matter heard at judicial review or that they were of the view that the Applicant should seek a stay of the Review Panel’s decision while the application for judicial review was pending. Given that the matter was in case management, it was open to the Respondent to raise this as a concern, as she raised other matters.

Further, in my view, the setting down of a new election while the application for judicial review was pending would have served only to further complicate and add even greater uncertainty to the situation. [ 61 ] The Respondent references Ledoux in support of her argument that the Chief and Council are, in effect, in contempt of the Review Panel’s decision and that this should have an unspecified negative impact on the relief sought by the Applicant before this Court. In my view, Ledoux is factually dissimilar. There, the applicants brought an interlocutory motion seeking injunctive relief.

The applicants had won an election, but lost the appeal before an elections committee. The applicants then launched an application for judicial review to overturn the elections committee’s decision. They did not bring an application to stay the decision of the election committee, or to seek to delay or stop the second election, and a second election was held. The applicants then disregarded the new election results and instead continued to act as the elected Chief and Council, remaining in control of the day-to-day operations of the First Nation, as well as its bank account.

Those same parties then brought an interlocutory motion seeking an order declaring that they should have control over the administration, governance and finances of the First Nation even in the face of the second election results ( Ledoux at paras 17, 21-22 ). Justice Pentney found that the applicants came before the Court seeking equitable relief " “effectively to cement their raw assertion of power pending the determination of their judicial review” " ( Ledoux at para 20 ). He refused to grant the relief sought and found that the applicants did not come before the Court with clean hands.

Justice Pentney also noted that despite the efforts of the case management judge, the parties were not inclined to expedite the hearing of the main dispute prior to the hearing of the motions brought before him which had the effect of prolonging the litigation and thereby delaying a resolution for the community ( Ledoux at para 7 ). [ 62 ] Here, the application for judicial review has been in case management since it was filed and the parties have been in dialogue, through case management, as to the timing of the application.

Unlike Ledoux , a second election has not been held and disregarded, and injunctive relief is not sought in an effort to cement an unlawful act. And, as acknowledged by the Respondent, the TTN Custom Election Code is silent about the timeframe within which a new election must be held following a successful appeal.

Nor does the Respondent offer any evidence to suggest that she was not in agreement with the timing of the application for judicial review arising from the case management. [ 63 ] To the extent that the Respondent is indirectly suggesting, based on her contempt and standing submissions, that the Applicants come to this Court with unclean hands, I am unpersuaded. Custom

[ 64 ] The Respondent also submits the Applicant lacks standing because past practice and reasonable expectation are that the previous Council remains in place pending an appeal’s resolution. Presumably, the suggestion is that only the former Chief and Council would have standing.

However, even if that were so, the impugned Chief and Council would still have a direct interest in the relief sought. [ 65 ] In any event, to the extent that the Respondent is suggesting that TTN custom is that the previous council is to remain in place while an election is appealed or a decision of a review panel is subject to judicial review, she provides little to substantiate this. The TTN Custom Election Code serves to codify previously unwritten TTN governance customs and to effect other practices and procedures agreed to by the Band.

Nothing in the Code suggests that when an appeal is filed the impugned Chief and Council must step aside or that the prior Chief and Council will resume governance until a new election is held. The absence of a provision requiring the prior council to remain in place during an appeal of an election does not support that this is a custom of TTN. [ 66 ] The Respondent’s affidavit, filed in response to the Applicant’s application for judicial review, does not speak to this issue.

It does attach, marked as Appendix F but not referenced in or referred to as an exhibit to her affidavit, a copy of what appears to be an email or posting by RoseAnne Archibald which states, " “[s]eriously though, I have a feeling this election will be appealed, which means that the current Council stays in position until the appeal is ruled on, which as we’ve seen in the past can take a very very long time.” " This is hearsay and is insufficient to establish that it is a custom of TTN for the past Council and Chief to continue to hold those positions pending the resolution of an election appeal.

To establish that the prior council remaining in power while an election is appealed is a TTN custom, the Respondent would have to establish, with convincing evidence, that such a practice was firmly established and followed consistently by the community (see, for example, my decision in Beardy v Beardy , 2016 FC 383 at paras 90-97 (“ Beardy ”); Shotclose v Stoney First Nation , 2011 FC 750 at para 69 ). She submitted no evidence in that regard and her submission as to standing based on an alleged custom cannot succeed.

Conflict of interest [ 67 ] The Respondent’s submission that the application for judicial review results in a conflict of interest as the application is paid for by Band funds and because it is in the personal interest of the impugned Chief and Council to remain in power is also not an issue of standing. [ 68 ] I would also note that, upon election, the current Chief and Council became the representatives of TTN and were responsible for governance of that First Nation.

I am not persuaded a conflict of interest exists merely because of a decision by the current Chief and Council to seek judicial review of the Review Panel decision. That is a question of Band governance and was a decision, and related expense, that was open to them. This is particularly so as the Review Panel’s decision turns on the question of whether the allegations of violations of the Code had an impact on or changed the substantive outcome of the 2017 Election and whether it was in the best interest of TTN to order a new election.

That is to say, the appeal was not concerned with individual election results but pertained to the overall conduct of the election. ii Standing of the Respondent [ 69 ] The second issue that the Respondent raises as a question of standing appears to concern her own standing. More accurately, she seems to question whether she is a properly named respondent. [ 70 ] Ms. Linklater submits that the Review Panel handed her no authority and that the resolution of the appeal is a public democratic process in the interests of the entire TTN.

She submits that it is unfair that she had to bear the cost of " “her representative” " on the Panel as well as responding to the application for judicial review before this Court. She submits that her civic duty to TTN ended when the Panel completed hearing her submissions and that the Panel’s authority is on behalf of the TTN, not the Respondent. Despite this submission, the Respondent also argues that the impugned Chief and Council should be bringing the judicial review against TTN, a directly affected party because it enacted the Code, and naming herself and the Electoral Officer as respondents.

Naming only her as a respondent creates an inherent power imbalance in favour of the impugned Chief and Council rather than the public interest to TTN in having a fair and culturally appropriate election process and appeal. [ 71 ] As to the Respondent’s apparent suggestion that she should not be a named respondent, I do not agree. [ 72 ]

Section 19.2 of the TTN Custom Election Code permits a candidate to apply to have an Election Review Panel constituted for the disposition of any matter that is alleged to be in violation of the Code. The Respondent was an unsuccessful candidate for the position of Chief and sought such an appeal.

As submitted by the Applicant, because the Respondent commenced the successful appeal, she is directly affected by the remedy that the Applicant seeks on judicial review, being an order quashing the decision of the Review Panel. [ 73 ] While I acknowledge that the Respondent frames her appeal as one of civic duty, the appeal also has a direct impact on her personally. The result of the successful appeal that she brought was that the Review Panel found that the election in which she unsuccessfully ran as a candidate was in violation of the Code and therefore ordered a new election.

This presented her with the opportunity to run again. However, if the Applicant is successful on judicial review, then the Review Panel’s decision will be quashed. In that event, the impugned Chief and Council will remain in place and the Respondent will not have an opportunity to run in the new election.

In my view, because she was the applicant in the appeal and because the decision of this Court will directly affect her, she is a properly named respondent pursuant to Rule 303(1) of the Federal Courts Rules . [ 74 ] As for the Respondent’s submission that Vaughn Johnston, the Electoral Officer, should also be named as a Respondent, it is difficult to see why he would be so named. He was not a candidate, and he could not and did not appeal the 2017 Election. He is not directly affected by the order sought.

Moreover, as demonstrated by his submissions before the Review Panel during the Respondent’s appeal, the Electoral Officer does not believe that the 2017 Election violated the Code. It is therefore reasonable to infer that the Electoral Officer would not oppose the Applicant’s application for judicial review. Indeed, the Applicant adopted the Electoral Officer’s submissions when appearing before the Review Panel. Accordingly, I see no merit to this submission.

[ 75 ] The remainder of the Respondent’s submissions concern her view that, having brought the appeal in the public interest, it is unfair that she is forced to bear the costs of the appeal and also her costs in responding to the application for judicial review. Additionally and relatedly, because only she is named as a respondent, a power imbalance results. [ 76 ] The Respondent did not bring any motions seeking to be removed as a respondent, seeking to add or remove others as applicants or respondents, and nor does she now bring such motions. Nor is the Respondent actually challenging standing.

Rather, her submissions amount to a complaint about the costs of the appeal process. Specifically, that the Code does not provide for costs to those individuals like her who elect to appeal an election result, or who respond to the judicial review of such an appeal. In essence, she challenges the fairness of the appeal process from a cost perspective and asserts a power imbalance because TTN’s expenses in bringing this application for judicial review are Band expenses, but her expenses as an individual responding to the application are not.

However, the Respondent does not appear to have challenged the Code on this basis in her appeal and, accordingly, this application for judicial review is not concerned with that issue.

It is concerned with the reasonableness of the Review Panel’s decision. [ 77 ] The Respondent’s concern as to a power imbalance is, in reality, a concern as to the costs of the application and would have been more properly addressed as such. [ 78 ] Before moving onto a consideration of the reasonableness of the Review Panel’s decision, I note in passing that, in its written submissions, the Applicant addressed several matters raised in the affidavit of the Respondent submitted by her in response to the application for judicial review.

In paragraph 7, 19 and 20 of her affidavit, the Respondent states that she was hindered in finding work and responding to the application for judicial review because her Record of Employment has not been issued by the Band office, that she felt pressured to submit to the authority of the impugned Chief and Council and that the employment by TTN of two members of the Respondent’s family was terminated in unusual circumstances. Also, that her cell phone was cut off without notice after the election (the Respondent was a Councillor on the former Band Council).

She also states that she has warned the current Chief and Council that the application for judicial review is unfair and prejudicial to her, that she has experienced stress and expenses as a result, and that the application for judicial review should not have been brought against her individually. [ 79 ] It is sufficient for the purposes of this decision to simply say that I have read the Respondent’s affidavit and the transcript of cross- examination of the Respondent on her affidavit.

The allegations as to the withholding of her Record of Employment, termination of employment of her relatives and of the cellphone were addressed during the cross-examination and, in my view, these matters are not relevant to, or pursued by, the Respondent in the context of the reasonableness or procedural fairness of the Review Panel appeal. The Respondent’s submissions on the unfairness of being named a respondent and in incurring the costs of the judicial review process are pursued in her submissions in the context of her arguments on standing, which I have addressed above.

Issue: Was the Review Panel’s decision reasonable? Applicant’s Position [ 80 ] The Applicant submits that there are four reasons why the Review Panel’s decision was unreasonable. First, the Panel majority based their decision that the TTN Election Code violations affected the election’s outcome on their own experience conducting elections elsewhere, rather than on information relating to the 2017 election.

Second, the Panel majority ordered a new election on the basis of their own anecdotal experience conducting elections elsewhere, rather than on information relating to the 2017 election, and further found that TTN had been harmed by the negligence and unprofessional work ethics of the Electoral Officer, which conduct was not outlined or considered anywhere in the decision.

Third, the Panel majority failed to consider the evidence before them that the successful candidates had achieved their positions by a substantial margin of victory, such that the procedural violations identified by the Panel would not have had a substantial effect on the 2017 election.

And, fourth, the Panel majority failed to consider the harm to TTN that would be caused by ordering a new election after the Chief and Council had been in place for, at that time, ten months. [ 81 ] The Applicant also submits that only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election. If elections can be easily annulled on the basis of administrative errors then public confidence in the finality and legitimacy of the elections results will be eroded and voters disenfranchised.

Accordingly, this Court has exercised its discretion to uphold elections based on public interest considerations (citing Opitz ). In Ominayak v Returning Officer for the Lubicon Lake Indian Nation Election , 2003 FCT 596 (“ Ominayak ”), this Court refused to void election results because it could impugn the validity of decisions made by the council and chief in the intervening four years since the election (at paras 55-56). A similar decision was reached in Clifton v Benton , 2005 FC 1030 at para 60 (“ Clifton ”).

Relying on Ominayak and Clifton , the Applicant submits that quashing the Panel majority’s decision would be in the best interest of TTN members because the Chief and Council have been in their roles for almost two years now and it would be damaging to the First Nation to call into question the many decisions that have been made over that period. Respondent’s Position [ 82 ] The Respondent does not directly address the issues raised by the Applicant. She submits that the Review Panel decision offers very little by way of explanation as to how it reached its findings.

However, that it is significant that the reasons stated that: Those Panel members with experience conducting elections report that the two advanced polls changed the number of ballots cast… (Respondent’s emphasis) [ 83 ] According to the Respondent, the lawyer Panel member, who she states is not Indigenous, wrote the decision and failed to provide any detail as to how the majority of the Panel arrived at its decision " “other than to leave it blatantly wide open for appeal through the

language chosen.”" The use of the word "“report”", according to the Respondent, means that the lawyer Panel member wrote thedecision indicating disagreement with the Indigenous non-lawyer Panel members who have experience conducting elections.

TheRespondent submits that by bringing the application for judicial review the Applicant "“seeks to disavow the expertise of its Indigenouspanel members, and uplift the opinion of the Electrical Officer’s appointed lawyer to determine the appropriate outcome of the appeal.”"Further, that there is a reasonable apprehension of bias inherent in the selection process and appointment of the Review Panel "“wherethe lawyer is concerned”" (citing Taylor v Kwanlin Dun First Nation By-Election Appeals Board, at para 5 (FCTD)).The Respondent submits that the Indigenous non-lawyer Panel members were best placed to take judicial notice of aspects unique toFirst Nations law and election practices with which they had experience, and that where the decision does not reflect this, the decisionshould be interpreted generously "“having regard to the lack of independent articulation of the positions and findings of the Indigenousnon-lawyer panel members.”" [84] The Respondent submits that a high degree of deference is to be accorded to a First Nation’s election appeal board, within the rangeof reasonable outcomes.

However, that the lawyer member of the Panel should not be given greater deference simply because they arelegally trained. According to the Respondent, because the minority panel member, the lawyer, drafted the decision, the "“voices of theIndigenous non-lawyer panel members are not clear enough in the written decision to counteract the erroneous assumption that thelawyer is best placed to assess the evidence.”" [85] The Respondent also submits that it is in the best interests of TTN to dismiss this application for judicial review.

This is becausethe there is a severe loss in the integrity of the impugned Chief and Council in continuing to hold office in light of the circumstances ofthe election, the delayed appeal, the contempt of the Panel’s decision, and the "“continued positions taken against a single band member,without any funding.”" Analysis [86] The Review Panel’s decision is consistent in approach. For each alleged violation, it sets out Ms. Linklater’s position, TTN Chiefand Council’s position, the relevant Code provision and the Review Panel’s finding. The Respondent accurately indicates that littleanalysis is provided.

In fact, most of the assessments of each allegation merely accept the position of one party or the other, with little ifany analysis. The Review Panel unanimously agreed that only 3 of the 17 alleged violations were of merit. [87] The Panel divided when considering whether violations of

section 12.2 and 12.6 of the Code had an impact on or changed thesubstantive outcome of the 2017 Election as well as on the question of whether it was in TTN’s best interest to require a new election.The totality of those reasons were as follows: 121. Two Panel members find that the holding three polling stations rather than two polling stations had an impact orchanged the substantive outcome of the 2017 Election.

Those Panel members with experience conducting elections reportthat the two advanced polls changed the number of ballots cast by said voters at this particular polling station, that thischange in the Election Code while during a current election process impacted the entire outcome of the 2017 election. 122. One Panel member disagrees and finds that holding three polling stations rather than two polling stations did not havean impact or change the substantive outcome of the 2017 Election.

That Panel member accepts TTN Chief and Council’ssubmissions that the holding of three polling stations did not affect the fairness of the elections. That Panel member findsthat Ms. Linklater did not provide information to demonstrate that holding three polling stations instead of only two pollingstations impacted or changed the outcome through the number of votes cast, the locations of where the voters voted, or otherreasons. As to the

section 12.6 violation, the reasons state: 124. Two Panel members find that the holding advanced polling stations rather had an impact or changed the substantiveoutcome of the 2017 Election. Those Panel members with experience conducting elections report that the two advancedpolls changed the number of ballots cast by said voters at this particular polling station, that this change in the Election Codewhile during a current election process impacted the entire outcome of the 2017 election. 125.

One Panel member disagrees and finds that holding advanced polling stations did not have an impact or change thesubstantive outcome of the 2017 Election. That Panel member accepts TTN Chief and Council’s submissions that theholding of advanced polling stations did not affect the fairness of the elections. That Penal [sic] member finds that Ms.Linklater did not provide information to demonstrate that the advance polling stations either decreased or increased thenumber of voters who voted based on when they were held or their location, or the overall fact that advanced polling stationswere held.

Finally, as to whether it is in the best interest of TTN for the Panel to order a new election, the reasons were: 126. Two Panel members find that it is in the best interest of Taykwa Tagamou Nation to order a new election. Those Panelmembers with experience conducting elections report that the Taykwa Tagamou Nation is in harm as the 2017 Election wasin violation of the Election Code due to the negligence and unprofessional work ethics carried out and tremendous lack ofrespect of the Election Code by the contractor whom Taykwa Tagamou Nation sought and hired. 127.

One Panel member disagrees and finds that it is not in the best interest of Taykwa Tagamou Nation to order a newelection.

That Panel member is of the opinion that more harm may be done to Taykwa Tagamou Nation if a new election isordered as the present Taykwa Tagamou Nation Chief and Council have been in office now for almost 10 months; a newelection will burden the First Nation by interrupting the governance of the First Nation; and there is no guarantee thatrunning a new election will be free form additional problems under the existing wording of the Election Code. [88] As a preliminary observation, I note that the Respondent’s attack on the lawyer Panel member is misplaced and without merit.

[89] In that regard, the Respondent asserts that by the use of the word "“report”" in the reasons, "“the lawyer member of the Panel iswriting the decision in a manner clearly indicating disagreement with the Indigenous non-lawyer Panel members who have experienceconducting elections. The author does not provide any detail as to how the majority panel member arrived at their decision, other than toleave it blatantly wide open for appeal through the language chosen.”" [90] There is no evidence before me as to which Panel member wrote the decision.

The Respondent assumes that it was the lawyermember and it may well have been, but there is nothing in the record to indicate that this is the case. Further, the dissenting Panelmember clearly indicated her disagreement with the majority. Thus, the use of the word "“report”" is of no significance in that regard.Moreover, Panel members are not required to agree with one another. It is entirely appropriate for a panel member to dissent if he or sheholds a differing opinion.

Further, the level of detail provided in support of the majority and minority Panel member’s reasons is notdisproportionate. [91] And, significantly, each of the Panel members signed the decision which signifies their satisfaction with it.

There is nothing tosupport the Respondent’s bald assertion that the reasons did not accurately and appropriately describe the opinion of the majority Panelmembers or to substantiate her submission that the voices of the Indigenous non-lawyer Panel members were not clear enough in thewritten decision to "“counteract the erroneous assumption that the lawyer was the best placed to assess the evidence.”" Indeed, thiswould suggest that the lawyer Panel member, who may or may not be Indigenous and who may or may not have election experience,made this assumption and that the two experienced Indigenous Panel members, one of whom the Respondent selected, simply wentalong with this. [92] When appearing before me counsel for the Respondent pursued this line of reasoning and suggested that it was not the role of themajority Panel members to write the reasons, they just "“sign off”", and that the lack of reasons was the fault of the minority Panelmember who failed adequately convey the reasons of the majority.

This is abject speculation. All Panel members are responsible formaking the decision and all signed the decision. The Respondent seeks to look behind the decision-making process of the Panelmembers and suggested evidence could have been led in that regard. However, no such evidence was provided and I fail to see how itcould have been. [93] When appearing before me, counsel for the Respondent also suggested that the best evidence was not before the Court. However,nothing in the written submissions or the Respondent’s affidavit addressed this.

I would also note that, as a general rule, the evidentiaryrecord before a Court on judicial review is restricted to the evidentiary record that was before the decision-maker.

Evidence that was notbefore the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Association ofUniversities and Colleges of Canada v Canadian Copyrights Licensing Agency, 2012 FCA 22 at paras 19-20). [94] The Respondent also asserts that there was "“a reasonable apprehension of bias inherent in the selection process and appointment ofthe ERP [Review Panel], where the lawyer is concerned.”" [95] As noted above,

section 19.3 of the Code provides for the selection of the Review Panel, being that the candidate who brought theappeal, Ms. Linklater in this circumstance, and the members of the newly elected (putative) Band council shall each select oneAboriginal member to the Review Panel and the Electoral Officer shall select the lawyer to be appointed to the panel. This process wasfollowed in the 2017 Election and the Respondent does not explain how the selection process was biased in relation to the lawyer Panelmember.

The totality of her assertion is that given the wording of the introduction of the Code referring to the inherent law of the FirstNation, "“it appears as a bizarre twist that the Nation now seeks to disavows the expertise of it Indigenous panel members, and uplift theopinion of the Electoral officer’s appointed lawyer to determine the appropriate outcome of the appeal.”" [96] To the extent that this is intended to infer that the lawyer Panel member is not Indigenous and this, or the fact that she is a lawyer,somehow results in bias, I note that there is no evidence to support either of these highly questionable inferences.

It also ignores that atleast two of the three Panel members were Indigenous and that they formed the majority, which held that the Respondent’s appealshould succeed.

The test for an apprehension of bias is what would an informed person, viewing the matter realistically and practically,and having thought the matter through, have concluded (Committee for Justice and Liberty et al v National Energy Board et al, (SCC), [1978] 1 SCR 369 at 394, 68 DLR (3d) 716; Sparvier v Cowessess Indian Band No 73, (FC), [1993]3 FC 142, 1993 CarswellNat 808 at para 65 (FCTD); Johnny v Adams Lake Indian Band, 2017 FCA 146 at para 43). The test is not metbased on the foregoing inferences. [97] And, to the extent that the Applicant is challenging the validity of

section 19.3 of the Code based on inherent procedural bias, thatis not the issue before me on judicial review.

In my view, the Respondent simply disagrees with the dissenting opinion. [98] As to the Review Panel’s decision, for the reasons that follow I find it to be unreasonable. [99] While the Respondent acknowledges that the reasons provided in the decision are "“unclear”", she submits that the majority Paneldecision is to be afforded significant deference and references Justice Grammond’s decision in Pastion in that regard: [22] Many forms of knowledge may be grouped under the heading of “expertise.” Indigenous decision-makers are obviouslyin a better position than non-Indigenous courts to understand Indigenous legal traditions.

They are particularly well-placed tounderstand the purposes that Indigenous laws pursue. They are also sensitive to Indigenous experience generally and to theconditions of the particular nation or community involved in the decision. They may be able to take judicial notice of factsthat are obvious and indisputable to the members of that particular community or nation, which this Court may be unawareof.

Indeed, for many Indigenous peoples, a person is best placed to make a decision if that person has close knowledge ofthe situation at issue (see Lorne Sossin, “Indigenous Self-Government and the Future of Administrative Law” (2012) 45UBC L Rev 595 at 605-607). This Court has recognized that certain of those reasons militate in favour of greater deferencetowards Indigenous decision-makers (Giroux v Swan River First Nation, 2006 FC 285 at paras 54-55; Shotclose v StoneyFirst Nation, 2011 FC 750 at para 58; Beardy v Beardy, 2016 FC 383 at para 43).

For example, in a very recent case, JusticePhelan noted that: Given that the decisions engage the Appeal Board’s knowledge and expertise of the community norms and

experiences and is an internal decision of a community’s electoral laws, as part of the respect owed to aboriginal peoples in the governance of their internal affairs, the Board’s decision should be accorded a high degree of deference within the reasonableness range of outcomes. ( Commanda v Algonquins of Pikwakanagan First Nation , 2018 FC 616 at para 19 ) … [28] One particular aspect of deference must be emphasized.

When deciding whether Indigenous decision-makers have made an unreasonable decision, reviewing courts should read their reasons generously, supplementing any apparent omission by looking to the record ( Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 16 , [2011] 3 SCR 708).

Judicial review is not a “line-by-line treasure hunt for error” ( Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper , Ltd ., 2013 SCC 34 at para 54 , [2013] 2 SCR 458). [ 100 ] I agree that the jurisprudence preceding Vavilov held that Indigenous decision-makers are entitled to considerable deference, and that this Court should generously read the reasons given ( Pastion at para 28 ; Beardy at para 43 ).

However, the jurisprudence also held that if upon review of the record it becomes apparent that the record does not provide information that permits the Court to understand the reasons contained in the decision under review, then the decision will be found to be unreasonable.

As stated by the Federal Court of Appeal in Leahy v Canada (Citizenship and Immigration) , 2012 FCA 227 : [121] If the reasons for decision are non-existent, opaque or otherwise indiscernible, and if the record before the administrative decision-maker does not shed light on the reasons why the administrative decision-maker decided or could have decided in the way it did, the requirement that administrative decisions be transparent and intelligible is not met… [references omitted] [122] Any reviewing court upholding a decision whose bases cannot be discerned would blindly accept the decision, abdicating its responsibility to ensure that it is consistent with the rule of law. [ 101 ] In Vavilov , the Supreme Court revised the role of expertise: [31] We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis.

However, we are not doing away with the role of expertise in administrative decision making.

This consideration is simply folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review. [ 102 ] Instead, the Court found that reasonableness is a single standard that accounts for context: [90] The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review.

These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt.

The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. [ 103 ] Throughout its decision the Supreme Court in Vavilov emphasised the need for justification in administrative decision-making, stating that reasons shed light on the rational for a decision and that the purpose of reasons is to demonstrate justification, transparency and intelligibility (at paras 2, 14, 74).

Where reasons are provided, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable ( Vavilov at para 81 ). A reviewing Court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention and seeking to understand the reasoning process followed by the decision-maker to arrive at its conclusions ( Vavilov at para 84 ).

Significantly, " “[w]here reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies” " ( Vavilov at para 86 , emphasis original). [ 104 ] Reasons are also be read in light of the record and with due sensitivity to the administrative setting in which they were given. They are not to be assessed against a standard of perfection ( Vavilov at para 91 ).

Further, [92] Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons.

These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact. [93] An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir , at para. 49 .

In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision.

This demonstrated experience and expertise may also explain why a given issue is treated in less detail.

[ 105 ] The Supreme Court held that " “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision” " ( Vavilov at para 85 ).

A reviewing court is to ask " “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” " ( Vavilov at para 99 ). To be reasonable, a decision must be based on reasoning that is both rational and logical ( Vavilov at para 102 ).

A decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis, where the conclusion reached cannot follow from the analysis undertaken, or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point ( Vavilov at para 103 ) [ 106 ] For the reasons that follow, the Review Panel’s decision cannot withstand this scrutiny. [ 107 ] In this matter, the expertise and experience of the Indigenous Panel members’ in conducting First Nations elections is not at issue.

The problem is that the decision offers no explanation as to how that experience and expertise informed or justified the majority’s findings. More specifically, the reasons do not explain what experiences assisted the Panel majority in determining that having advance polling stations and an additional polling station in Cochrane changed the outcome of the election.

Nor did the Panel majority explain how their experiences with conducting other elections for other First Nations led them to the conclusion that TTN was harmed by the 2017 Election because of the Electoral Officer’s unprofessional work ethics or negligence. Here, the majority Panel has not demonstrated through their reasons that the decision was made by bringing their expertise and experience to bear on the specific circumstances before them. The existence of such expertise cannot alone, in this circumstance, provide an explanat

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