Jacko v. Cold Lake First Nation

Removal of band councillor - Procedural fairness - Appeal committee jurisdiction

The Federal Court of Canada released a decision on November 21, 2014 in Jacko v. Cold Lake First Nation, dismissing an application for judicial review of the Cold Lake First Nation (CLFN) Appeal Committee's decision to remove the applicant from his position as a CLFN councillor due to his ineligibility to run for council under the CLFN's Election Law.

The applicant argued that the appeal committee acted procedurally unfair and erred in its interpretation of the Election Law. The Court noted, however, that the applicant was given oral and written notice that his election to council was under investigation due to suspicions surrounding his on-reserve residency. The Court also noted that the applicant was asked to provide particular documents to prove he was a resident on the CLFN reserve and therefore eligible to run for council; he failed to provide the proper documentation; he made no effort to attend the appeal hearing; and there was evidence proving that during his candidacy he was aware that he needed to be a CLFN reserve resident in order to become a councillor. Having determined that the applicant was given a reasonable opportunity to present his case on the matter, the Court found that the appeal committee's approach was procedurally fair and the applicant could not rely on Election Law formalites to shield himself from unfavourable evidence against him.

The Court also considered whether removing the applicant from council was beyond the appeal committee's powers. The applicant argued that an improper interpretation of the Election Law's eligibility requirement led to his removal from council. The Court noted that while there were ambiguities in the Election Law, adhering only to the applicant's strict interpretation of the law would be unreasonable in this case. The Court reviewed evidence proving the applicant knew of the residency requirement as well as evidence concerning the appeal committee's traditional authority under the Election Law. In noting that the applicant failed to provide rebuttal evidence with respect to the appeal committee's traditional jurisdiction and powers, the Court dismissed the application and concluded that the appeal committee interpreted the Election Law fairly and acted within its jurisdiction to remove the applicant from council.

The Court made one final observation on the Election Law itself, noting that the applicant's interpretation was not entirely unreasonable since the legislation was "highly ambiguous" and "in dire need of clarification and amendment". For this reason, no costs were awarded to either party.

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