NATIVE PEOPLES |
Elections |
Okeymow v. Samson Cree Nation
T-1017-02
2003 FCT 77, Russell J.
12/6/03
20 pp.
Judicial review of Samson Election Appeal Board's refusal to permit applicant's appeal of election results where, after several recounts, applicant defeated--Leave to appeal refused on ground "seven days were up"--Application allowed-- Chairman of Appeal Board informing applicant orally and informally appeal process not available constitutes "decision" --By analogy to Parisier v. Ocean Man First Nation (1996), 108 F.T.R. 297 (F.C.T.D.), Chairman of Appeal Board "federal board, commission or other tribunal" within meaning of Federal Court Act, s. 2--Pragmatic and functional approach to standard of review analysis applied: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226--Privative clause in Samson Cree Nation Election Law, s. 90 not particularly strongly worded; nevertheless demonstrating Band intending limited avenue of review, suggesting more deference--Election Law not requiring electoral officer to have any particular expertise, suggesting less deference--Purpose of Election Law not requiring careful balancing of variety of interests, suggesting less deference-- Errors of jurisdiction and law both require correctness standard--Considering these four factors, correctness standard applied: see Grand Rapids First Nation v. Nasikapow, [2001] 3 C.N.L.R. 47 (F.C.T.D.)--Chairman exceeded her jurisdiction as should not make decision as to whether appeal available on any set of facts; should bring matter before Appeal Board--"Seven days from date of election" in Election Law, s. 82 must be taken to mean "seven days from date of results of any election": would be absurd to require candidate to file appeal in eventuality he may lose, especially in context where applicant appeared to be winning.