Grey v Whitefish Lake First Nation, 2020 FC 949

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

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

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