HORSE LAKE FIRST NATION Applicant v. HENRY NAPESIS, 2019 FC 414

Date: 20190405 Docket: T-560-18 Citation: 2019 FC 414 St. John’s, Newfoundland and Labrador, April 5, 2019 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: HORSE LAKE FIRST NATION Applicant and HENRY NAPESIS Respondent JUDGMENT AND REASONS I. INTRODUCTION [ 1 ] Horse Lake First Nation (the “Applicant”) seeks judicial review of that part of a decision of the Appeal Board (the “Appeal Board”) of the Horse Lake First Nation by which it awarded " “reasonable costs” " on a solicitor and client basis to Mr. Henry Napesis (the “Respondent”), following his unsuccessful appeal of a Council election.

The appeal was taken pursuant to the Horse Lake First Nation Regulations Concerning Council Elections (the “Election Regulations”). [ 2 ] The decision of the Appeal Board is dated February 20, 2018 and includes, as Appendix “A”, a copy of the Election Regulations. II. BACKGROUND [ 3 ] The following facts are taken from the affidavit of Ms. Margaret Jensen and documents from the Certified Tribunal Record (the “CTR”), all filed as part of the Applicant’s Application Record. The Respondent did not participate in this application for judicial review.

However, an affidavit of service sworn on April 4, 2018, establishes that the Respondent was served with a copy of the Notice of Application for judicial review. [ 4 ] Ms. Jensen is a legal assistant in the law firm representing the Applicant. Attached to her affidavit as exhibits were a copy of the Written Submissions filed upon the hearing of the appeal of Mr. Eugene Horseman to the Appeal Board, as well as emails referencing the filing of those submissions, and a copy of the decision of the Appeal Board, in connection with that appeal.

That decision is also dated February 20, 2018. [ 5 ] The CTR consists of the following documents: 1. Letters from Emery Jamieson LLP and Parlee McLaws LLP; 2. The affidavits of Eugene Horseman, Dallas Stuart Ferguson, Alfred Goodswimmer, Ramona Lee Horseman, Keith Goodswimmer, and Rob Dane Horseman; 3. The Notice of Appeal; 4. Various emails; 5. Exhibits; 6. The parties’ written representations and authorities on which they relied; and, 7. The decision of the Appeal Board. [ 6 ] The Applicant is a First Nation community situate in North-Western Alberta, with approximately 800 members.

Elections for Council and Chief are held every 4 years, and are governed by the Election Regulations. [ 7 ] An election was held on October 30, 2017. The Respondent was a candidate for the Council and he was unsuccessful.

He appealed. [ 8 ] According to the decision upon his appeal, the " “ultimate question” " for the Appeal Board was whether there had been a " “violation of the Regulations that may have affected the results of the Council Election” " . [ 9 ] At paragraphs 9 and 10 of its decision, the Appeal Board said the following: The Board finds that the Council Election was held substantially in accordance with the Regulations. The Appellant has failed to demonstrate violations of the Regulations that may have affected the results of the Council Election. Accordingly, the Appeal is dismissed.

Regarding costs, this Board finds that the Appeal was not frivolous and was necessitated by the Electoral Officer’s errors.As such, the HLFN is directed to pay the Appellant’s reasonable costs on a solicitor-client basis. [10] An appeal was also taken against the election of Ramona Lee Horseman as Chief, in the election of October 30, 2017. That appealwas taken by Mr.

Eugene Horseman. [11] In submissions made to the Appeal Board on behalf of the Applicant, and others, the Applicant took the position that the appealshould be dismissed, with no costs to either party. [12] In a decision dated February 20, 2018, the Appeal Board identified the issue as being the status of Ramona Horseman as"“ordinarily resident”" on the Reserve within the meaning for the Election Regulations. At paragraph11 of its decision, it said thefollowing: This appeal is dismissed. Neither party shall be entitled to any costs arising from this Appeal. III.

SUBMISSIONS [13] The Applicant raises the following issues: 1. The applicable standard of review; 2.

Summary of the statutory scheme; 3. Jurisdiction to award costs; and, 4. Further issues in respect of costs award. [14] It submits that the question whether the Appeal Board had the jurisdiction to award costs is reviewable on the standard ofcorrectness. Alternatively, if the decision is subject to review on the standard of reasonableness, then the range of possible outcomes isnarrow. [15] In referring to the statutory scheme for elections, the Applicant cites the provisions governing appeals, that is sections 57 to 60,inclusive, of the Election Regulations.

It submits that these Regulations do not provide for the award of costs. It argues that the actions ofan administrative tribunal are limited to those set out in its enabling statute, relying on the decision of the Supreme Court of Canada inRio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 , [2010] 2 S.C.R. 650. [16] The Applicant raises, as an alternative argument, that if the Appeal Board did have authority to award costs, this case was not onewhere an award of costs was appropriate. It argues that there was no justification for an award of solicitor and client costs.

Such a costsaward is usually reserved for extraordinary situations where there is evidence of reprehensible, scandalous or outrageous conduct. [17] The Applicant also submits that the award of solicitor and client costs was made without notice to the Applicant who was therebydeprived of the opportunity to make submissions. As well, it argues that there must be some explanation for the award of solicitor andclient costs, and no such explanation was given. IV.

DISCUSSION AND DISPOSITION [18] I accept the submissions of the Applicant that the issue in this case, that is the authority of the Appeal Board to award costs, is oneof jurisdiction and reviewable on the standard of correctness. [19] There is nothing in the Election Regulations that addresses the power or authority to award costs, per se. [20] Subsection 57(

c) of the Election Regulations requires an appellant to make a deposit of $1000.00 upon the filing of a notice ofappeal. [21] Subsection 57 (

d) provides that if the appeal is successful, the deposit will be refunded to the appellant. [22]

Section 59 of the Election Regulations provides for the payment from the First Nation’s funds of the reasonable expenses of theAppeal Board within thirty days of the "“final determination”" of an appeal. [23] There is nothing in these provisions to authorize payment of "“costs”" to an unsuccessful appellant. Indeed, implicit in the languageof subsection 57(

d) is the idea that the deposit will be refunded to a successful appellant, not to one who loses the appeal. Subsection57(

d) provides as follows: If the appeal is successful, his/her Deposit will be refunded to the appellant. [24] Return of a deposit is not the same as an award of costs, but the provision that the deposit is returned only in the event of successsuggests that a monetary consequence is intended for the person who loses an appeal. [25] If the decision of the Appeal Board is reviewable on the standard of reasonableness, it fails that test. According to the decision inDunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, the standard of reasonableness requires that a decision betransparent, justifiable and intelligible, falling within a range of possible, acceptable outcomes that are defensible on the law and thefacts.

[ 26 ] The absence of any reasons for the award of the solicitor and client costs is not " “justifiable, transparent and intelligible” " . I refer to the decision in Bank of Nova Scotia v.

Randhawa , 2018 FC 487 where the Court said the following at paragraph 62: I find that while the adjudicator had the jurisdiction to award costs, including solicitor-client costs, his failure to explain the basis for making such an extraordinary award renders this aspect of the award unreasonable. [ 27 ] In the result, this application for judicial review is allowed and that part of the decision of the Appeal Board awarding solicitor and client costs to the Respondent is quashed and set aside.

An Order will issue saying that no costs are awarded to either party to the appeal before the Appeal Board. [ 28 ] The Applicant seeks costs upon this application for judicial review. Pursuant to the Federal Courts Rules , SOR/98-106, Rule 400 (1) , costs lie in the full discretion of the Court. Generally, the successful party is entitled to costs and costs are awarded to the Applicant in this case. JUDGMENT in T-560-18 THIS COURT’S JUDGMENT is that 1 .

The application for judicial review is allowed and that part of the decision made by the Appeal Board on February 20, 2018 awarding solicitor and client costs to Henry Napesis, the Respondent, is quashed and set aside. 2 . No costs are awarded to Horse Lake First Nation, the Applicant, or to Henry Napesis, the Respondent in connection with the appeal of Mr. Napesis before the Appeal Board 3 . Horse Lake First Nation, the Applicant, shall have its taxed costs upon this application for judicial review. “E.

Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-560-18 STYLE OF CAUSE: HORSE LAKE FIRST NATION v HENRY NAPESIS PLACE OF HEARING: EDMONTON, ALBERTA DATE OF HEARING: OCTOBER 16, 2018 JUDGMENT AND REASONS: HENEGHAN J. DATED: APRIL 5, 2019 APPEARANCES : Edward Molstad For The APPLICANT No Appearance For The RESPONDENT Henry Napesis (self-represented) SOLICITORS OF RECORD : Parlee McLaws LLP Barristers and Solicitors Edmonton, Alberta For The APPLICANT