Federal Court of Appeal Decisions

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Date: 20010607

Docket: A-5-00

CORAM:       DÉCARY, J.A.

EVANS, J.A.

SHARLOW, J.A.

BETWEEN:

                                            GORDON WOLFE

                                                                                                     Appellant

                                                       and

                                           JOHN ERMINESKIN

                                                                                                  Respondent

                                                       and

                                     THE CHIEF AND COUNCIL

                             OF THE ERMINESKIN FIRST NATION

                                                                                                    Intervener

                   Heard at Calgary, Alberta on Thursday, June 7, 2001.

         Judgment delivered at Calgary, Alberta on Thursday, June 7, 2001.

REASONS FOR JUDGMENT BY:           EVANS, J.A.                                       


Date: 20010607

Docket: A-5-00

                                                                                       Neutral Citation: 2001 FCA 199

CORAM:         DÉCARY, J.A.

EVANS, J.A.

SHARLOW, J.A.

BETWEEN:

                                                         GORDON WOLFE

                                                                                                                            Appellant

                                                                    and

                                                       JOHN ERMINESKIN

                                                                                                                        Respondent

                                                                    and

                                                 THE CHIEF AND COUNCIL

                                         OF THE ERMINESKIN FIRST NATION

                                                                                                                            Intervener

                                                REASONS FOR JUDGMENT

                            (Delivered from the Bench at Calgary, Alberta

                                               on Thursday, June 7, 2001)

EVANS, J.A.


The appellant is a resident member of the Ermineskin First Nation. He made an application for judicial review requesting an order of quo warranto to challenge the validity of the respondent's election to the Ermineskin First Nation Council in 1998. He also sought an order of mandamus against the returning officer, and the Chief and Council of the Ermineskin First Nation, on the ground that they had failed both to consider evidence adduced by the appellant purporting to show that the respondent had bought votes during an election in the previous year, and to declare the respondent guilty of corrupt practices and thereby ineligible to be a candidate for election to the Council.

This is an appeal from the decision of MacKay J. of the Trial Division dismissing the application, now reported as Wolfe v. Ermineskin (1999), 178 F.T.R. 60. Despite the able submissions of counsel, we are not persuaded that the reasons of MacKay J. contain any error.

The principal argument advanced before us by counsel for the appellant was that MacKay J. erred in the exercise of his discretion to refuse the relief sought, because he failed to consider whether the right of appeal to the Election Appeal Board provided by the Ermineskin Tribal Election Regulations was an adequate alternative remedy to judicial review.


The relevant provision is Regulation 27(c). It provides that, within 14 days after the holding of an election, a candidate in the election (which the appellant was not) may appeal to the Board on the ground that a person nominated to be a candidate was ineligible to be a candidate. Under Regulation 2(a) a candidate shall be determined ineligible and disqualified from nomination and election who was guilty of corrupt practice in connection with Ermineskin Tribal Affairs, dishonesty or malfeasance. Decisions of the Board are subject to the judicial review jurisdiction of the Federal Court under sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.

Although the reasons of MacKay J. do not expressly address the issue of the adequacy of the alternative remedy, we are satisfied that, on the evidence before him, it was open to him to conclude that the right of appeal to the Board contained in the Regulations, which codify the customary practice of the Ermineskin First Nation, is a reasonably adequate remedy which the appellant should have pursued before making his application for judicial review.


While the right of appeal to the Board is limited to candidates in the election, there is no evidence that the appellant had taken any steps to see whether a candidate was willing to take his concern to the Board. Further, we are not persuaded by counsel's argument that the right of appeal is not an adequate remedy because the procedures of the Board for examining a complaint that are prescribed in Regulations 28 and 29 are unsatisfactory. In our view, the Regulations do not preclude the Board from properly investigating a complaint in a fair manner, including, where appropriate, by providing an opportunity for a person who was not a candidate in the election to put before the Board evidence in support of the complaint.

We would only add that, if this litigation has revealed gaps, obscurities or other unsatisfactory features in the Regulations with respect to the process for determining a candidate's eligibility to stand for election to the Council, the more appropriate remedy is for electors to seek to have the Regulations amended by Council in accordance with the procedure provided in Regulation 35.


For these reasons, the appeal will be dismissed with costs to the respondent.

                                                                                                                       "John M. Evans"             

                                                                                                                                          J.A.

Calgary, Alberta

June 7, 2001


                                               

                    FEDERAL COURT OF APPEAL

                                               

Date: 20010607

Docket: A-5-00

BETWEEN:

                         GORDON WOLFE

                                                                 Appellant

                                             and

                             JOHN ERMINESKIN

                                                              Respondent

                                             and

                       THE CHIEF AND COUNCIL

          OF THE ERMINESKIN FIRST NATION

                                                                Intervener

                                                                                                                      

                  REASONS FOR JUDGMENT

                                                                                                                      


                                                                 FEDERAL COURT OF APPEAL

                                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-5-00

STYLE OF CAUSE:                                         Gordon Wolfe v. John Ermineskin et al.

                                                                                         

PLACE OF HEARING:                                  Calgary, Alberta

DATE OF HEARING:                                     June 7, 2001

REASONS FOR JUDGMENT OF THE COURT (Décary, Evans & Sharlow JJ.A.)

RENDERED FROM THE BENCH BY:            Evans J.A.

APPEARANCES:

Mr. Richard C. Secord                                                                    FOR THE APPELLANT

Ms. Trina Kondro

Mr. James L. Dixon, Q.C.                                                                FOR THE RESPONDENT

Mr. David Tupper                                                                            FOR THE INTERVENER

SOLICITORS OF RECORD:

Ackroyd, Piasta, Roth & Day                                                         FOR THE APPELLANT

Edmonton, Alberta

Dixon & Associates                                                                          FOR THE RESPONDENT

Red Deer, Alberta

Blake, Cassels & Graydon                                                             FOR THE INTERVENER

Calgary, Alberta


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