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NATURAL JUSTICE - Duty of fairness - Procedural fairness

Monday, August 21, 2017 @ 11:41 AM  

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Appeal by three Band Councillors from the dismissal of their application for judicial review of a decision of the Band's Community Panel removing them as Band Councillors for breach of their Oath of Office. The appellants were properly elected Band Councillors. In September 2016, a petition was presented seeking the removal of the appellants from their positions as Band Councillors. The petition was supported by an employee of the Band and alleged that the appellants advocated for family members to receive housing and/or funding and/or the removal of the Executive Director for personal reasons, and therefore the appellants were not impartial, did not consider the best interests of the Band and showed a lack of respect for Band policies in violation of the Band’s oath of office. The Community Panel found that all but one of the alleged violations were established. It also considered a number of allegations not contained in the petition. As a result, it concluded that each appellant breached the oath of office as well as the Band’s Code of Conduct and other policies and bylaws. Each appellant was removed from office and each was prohibited from running for election in the next two Band elections. The appellants sought judicial review of the Community Panel’s decision. They submitted that they were not provided a fair hearing, as they were not fully informed of the case to meet and not permitted to fully respond to it. The judge rejected the appellants’ application, finding that the decisions were reached in a procedurally fair manner. He concluded that a full hearing was not required. The appellants appealed, arguing that the judge erred by applying the reasonableness standard to the Community Panel’s decision and in failing to find that the decision was reached in a procedurally unfair manner.

HELD: Appeal allowed. The Federal Court selected and applied the correct standard of review. The standard of correctness applied to questions of procedural fairness. However, the judge erred in concluding that the decision of the Community Panel was made in compliance with the requirements of procedural fairness. A full oral hearing was required, as this case involved conflicting evidence and issues of credibility. Furthermore, the matter could only be decided by the Community Panel members who heard all of the evidence and submissions of the parties. Community Panel members who were present could not pass on their recollection of the evidence and their impression of the witnesses to others who were not there. Nor was it sufficient for an absent member to read a summary of the minutes of what a witness said. As two members were absent for a number of hearings, two others recused themselves from hearing certain evidence, and one member declared a conflict of interest, the Community Panel breached the principle of “he who decides much hear”. In addition, there was a reasonable apprehension of bias, as some members participated in the decision when they were in a conflict of interest.

Johnny v. Adams Lake Indian Band, [2017] F.C.J. No. 676, Federal Court of Appeal, E.R. Dawson, W.W. Webb and D.J. Rennie JJ.A., July 5, 2017. Digest No. TLD-August212017002