Date: 20001213
Docket: A-120-00
CORAM: STRAYER, J.A.
ROTHSTEIN, J.A.
| McDONALD, J.A. |
BETWEEN:
| SHARON VENNE, in her capacity as RETURNING OFFICER for the LUBICON LAKE INDIAN NATION |
ELECTION HELD ON APRIL 25, 1999
Appellant
| - and - |
| MICHAEL OMINAYAK, JAMES OMINAYAK, |
| ET AL |
Respondents
Heard at Edmonton, Alberta, on December 13th, 2000.
JUDGMENT delivered at Edmonton, Alberta, on December 13th, 2000.
| REASONS FOR JUDGMENT BY: Rothstein, J.A. |
| CONCURRED BY: Strayer, J.A. |
McDonald, J.A.
Date: 20001213
Docket: A-120-00
CORAM: STRAYER, J.A.
ROTHSTEIN, J.A.
| MCDONALD, J.A. |
BETWEEN:
| SHARON VENNE, in her capacity as RETURNING OFFICER for the LUBICON LAKE INDIAN NATION |
ELECTION HELD ON APRIL 25, 1999
Appellant
| - and - |
| MICHAEL OMINAYAK, JAMES OMINAYAK, ET AL |
Respondents
REASONS FOR JUDGMENT
| (Delivered from the Bench, at Edmonton, Alberta, |
| on December 13th, 2000). |
ROTHSTEIN, J.A.:
The only issues in this appeal are whether the motions judge erred in ordering production by the Appellant of the Lubicon Lake Indian Nation membership list and in ordering costs payable on a solicitor and client basis by the Appellant.
The Appellant was the returning officer in the April 25, 1999 election of the Lubicon Indian Nation. The Respondents have sought judicial review of the decision made by the Appellant to exclude certain persons from voting and to permit others to vote. They say the membership list of the Nation is relevant for purposes of the judicial review. By interlocutory motion, the Respondents sought production of the membership list from the Appellant.
The Appellant's evidence was that she had never been in possession of the membership list and had never even seen it. The motions judge, while accepting that the Appellant had never had physical possession of the list, found that she relied on it by asking questions of the membership clerk, in deciding who was eligible to vote and who was not. She ordered the Appellant to obtain and deliver to the solicitors for the Respondents a copy of the Lubicon Lake Indian Nation membership list as it existed on April 25, 1999.
We are of the respectful view that the motions judge erred in ordering the Appellant to obtain and deliver the membership list to the Respondents. The Appellant in this case is the tribunal whose decision is to be judicially reviewed. Under Rule 317, a party may request material relevant to the judicial review that is in the possession of the tribunal. The membership list was not in the possession of the Appellant, and this is acknowledged by the motions judge. The list not being in the possession of the Appellant we are of the opinion that the motions judge erred in ordering the Appellant to obtain it and deliver it to the Respondents.
In the absence of other evidence submitted by the parties in appropriate circumstances, a judicial review proceeds on the basis of the record before the tribunal whose decision is under review. It is generally not appropriate to order the tribunal to produce information beyond what was before it when it made its decision.
While we have concluded that the motions judge erred in ordering the Appellant to produce the membership list we do not wish it to be taken that we approve of an election being conducted without the returning officer being in possession of and using a membership or voters' list. That will be a matter for consideration by the judge conducting the judicial review.
Insofar as the order of solicitor client costs is concerned, counsel advised that they did not address the motions judge on this issue. The motions judge has not delineated specific reasons for ordering solicitor client costs. Moreover, we have found that she erred in ordering the Appellant to produce the membership list. In the circumstances, we would set aside the order for solicitor client costs.
The appeal will be allowed and the orders of the motions judge in respect of the production of the Lubicon Lake Indian Nation membership list and solicitor client costs will be quashed. The costs of the motions before the motions judge and the costs on the appeal will be in the cause.
"Marshall Rothstein"
J.A.
EDMONTON, Alberta
December 13, 2000
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-120-00
| STYLE OF CAUSE: Sharon Venne, in her capacity as Returning Officer |
for the Lubicon Lake Indian Nation Election held on
on April 25, 1999 v. Michael Ominayak,
| James Ominayak et al. |
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 13th, 2000
REASONS FOR JUDGMENT BY: Rothstein, J.A.
| CONCURRED IN BY: Strayer, J.A. |
McDonald, J.A.
DATED: December 13th , 2000
APPEARANCES:
Richard Gariepy FOR THE APPELLANT
Ronald E. Johnson FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Richard Gariepy FOR THE APPELLANT
Roddick & Johnson FOR THE RESPONDENTS