Testawich v. Duncan's First Nation Chief And Council

Procedural fairness - First Nation elections regulations and customs - Standard of review - Statutory interpretation - Judicial review

The Federal Court released a decision on November 6, 2014 in Testawich v. Duncan's First Nation Chief And Council, granting an order to reinstate the applicant, Mr. Testawich, to his position as councillor. The applicant sought judicial review of a decision of the Duncan's First Nation Appeals Committee to remove him from office for allegedly contravening s. 4(B) of the Duncan First Nation Custom Election Regulations.

In determining whether the committee erred in interpreting and applying the regulations, the Court noted that the applicable standard of review for an election appeal committee's interpretation of election regulations is reasonableness. Although courts must use respectful attention when conducting judicial reviews of First Nations' decisions in interpreting their own election regulations and band customs, they still must look predominantly to the ordinary meaning of words when interpreting band election laws that are clearly and plainly expressed. Section 4(B) of the regulations states that an electoral candidate can obtain from the electoral officer the names and addresses of electors who have consented to having their addresses released to candidates. The committee argued that any communication between the applicant and electors who had not provided their consent for the purposes of s. 4(B) does not, by any reasonable interpretation, prohibit election candidates from speaking with electors who have not consented to having their information shared. The Court agreed with the applicant and concluded that the committee erred in interpreting and applying the regulations.

In determining whether the committee breached the duty of procedural fairness it owed to the applicant, the Court noted that the committee's decision affected the applicant's reputation; the applicant expected written records and an imposed order at the hearing; the applicant was significantly prejudiced by the committee's choice not to keep a written record of the hearing and the evidence; and the applicant was prevented from understanding the reasons for his removal from office due to the committee's short and ambiguously written decision. In light of the committee's insufficient reasoning, the Court concluded its decision to remove the applicant from office was unreasonable.

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