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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: Redfern v. Qikiqtani Inuit


Association, 2018 NUCJ 13
Date: 20180509
Docket: 08-15-007
Registry: Iqaluit

Applicant: Madeline Redfern


-and-

Respondent: Qikiqtani Inuit Association

________________________________________________________________________

Before: The Honourable Madam Justice Susan Cooper

Counsel (Applicant): Crista Osualdini


Counsel (Respondent): Sylvie M. Molgat

Location Heard: Iqaluit, Nunavut


Date Heard: May 8, 2017
Matters: Judicial Review

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


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Table of Contents

I. INTRODUCTION ............................................................................................................................ 3
II. EVIDENCE ..................................................................................................................................... 3
III. ISSUES ......................................................................................................................................... 4
IV. ANALYSIS .................................................................................................................................... 6
A. Is the matter moot? ................................................................................................................ 6
B. Is the matter subject to judicial review? ................................................................................. 8
C. Is the QIA a public or private organization? ............................................................................ 9
D. Standard of review ................................................................................................................ 13
(i). Was the failure to provide Community Director ballots to voters in Ottawa
discriminatory? ......................................................................................................... 14
D.i.1. Human Rights Act....................................................................................... 15
D.i.2. Section 15 of the Charter ............................................................................ 15
D.i.3. Conclusion on discrimination allegation .................................................... 17
(ii). Was the failure to provide Community Director ballots to voters in Ottawa a
breach of procedural fairness or natural justice? ...................................................... 17
V. REMEDIES .................................................................................................................................. 19
VI. CONCLUSION ............................................................................................................................ 20
VII. COSTS ...................................................................................................................................... 21
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I. INTRODUCTION

[1] This is an application by Madeline Redfern [Redfern] for judicial


review of the December 8, 2014 election results for the position of
Community Director, Iqaluit, of the Qikiqtani Inuit Association [QIA].

[2] This application was filed shortly after the 2014 election. Redfern
initially sought to have the election results for the Iqaluit Community
Director set aside and a new election held for that position. For
various reasons this matter has taken some time to work its way
through the Court. As a consequence, it is not reasonable to consider
setting aside the results of an election held over three years ago.

[3] In light of this, Redfern amended her application. The remedy she
asks the Court to grant is:

…an order in the nature of mandamus that in any and all future
elections, the QIA shall operate the Ottawa Polling Stations so
that they function procedurally in an identical manner to those
polling station(s) within the Qikiqtani region;

…a declaration that the manner in which the QIA operated the


Ottawa Polling Stations and more particularly the QIA’s failure
to provide ballots to the Ottawa Polling Stations during the
Election for the Director Position was a breach of procedural
fairness for both candidates and eligible Ottawa voters.

II. EVIDENCE

[4] The QIA is a corporate body/non-profit society, incorporated under the


Societies Act, RSNWT (Nu) 1988, c S-11. It is mandated to represent
the interests of Inuit living in the Qikiqtani Region of Nunavut. The
Board of Directors consists of a President, a Vice President, a
Secretary Treasurer (the executive officers) and 13 Community
Directors, one from each community in the Qikiqtani Region.

[5] Elections for the Board of Directors are conducted in accordance with
the Election Regulations contained in the By-Laws of the QIA. The
applicable Election Regulations for the purposes of the 2014 election
were those which came into force in October/November of 2014.
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[6] QIA elections are staggered, meaning that at each election only some
positions are open for election. This ensures continuity at the Board.

[7] At the election in question, members of the QIA were voting for a
President and for eight Community Directors, including Community
Director for Iqaluit, a position for which there were two candidates. In
addition to polling stations in each of the 13 Qikiqtani communities,
two polling stations were established in Ottawa, as it has a significant
Inuit population.

[8] QIA members who were residents of Iqaluit but in Ottawa on voting
day and who attended the polling stations in Ottawa were provided
with a ballot for the election of the QIA President. They were not
provided with a ballot for the election of the Iqaluit Community
Director. They were advised that in order to vote for the Iqaluit
Community Director they would have to provide their proxy to a voter
physically present in Iqaluit.

[9] The Applicant lost the election for Iqaluit Community Director by one
vote.

III. ISSUES

[10] This matter raises a number of issues.

1. Is the matter moot?

2. Is the matter subject to judicial review?

3. If the matter is not moot and is subject to judicial review,


the parties submit that the issues are as follows:

i. Applicant’s statement of issues:

a. did QIA fail to adhere to the election


procedures and thereby breach its
duty of procedural fairness;

b. did QIA fail to meet the legitimate


expectations of voters and other
candidates;
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c. did QIA discriminate against eligible


voters who attended the Ottawa
polling stations;

d. did QIA inappropriately,


unreasonably and arbitrarily
distinguish between voters who
attended the Ottawa polling stations
and those who attended polling
stations in the Qikiqtani Region,
thereby creating unfairness to the
Applicant, the other candidates, and
eligible voters;

e. what are the appropriate/available


remedies?

ii. Respondent’s statement of issues:

a. what is the standard of review;

b. were QIA’s By-laws and Election


Regulations followed;

c. was there a breach of natural justice;

d. was the Iqaluit Community Director


election result reached in a bona fide
manner;

e. should the Court exercise its


discretion to grant declaratory relief?

[11] I will return to these statements of issues later in the decision.


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IV. ANALYSIS

A. Is the matter moot?

[12] The leading authority on mootness is Borowski v Canada (Attorney


General), [1989] 1 SCR 342, 57 DLR (4th) 231 [Borowski], which
states that a matter will be moot if there is no longer a controversy
affecting the rights of the parties. If there is no longer a tangible and
concrete dispute between the parties which will be resolved by a
decision of the Court, then the matter is moot.

[13] However, there are circumstances where it is appropriate for the


Court to decide the matter even though it is moot. In determining
whether to exercise its discretion in this regard, the Court should
consider three factors:

1. has the matter been fully argued in an adversarial


context;

2. is the matter one to which scarce judicial resources


should be expended despite the matter being moot;

3. should the Court decide the matter, having regard to


the principle of judicial restraint?

[14] It is clear that, given that the results of the 2014 election have
essentially been accepted by the Applicant and she is no longer
seeking to have the result overturned, there is no longer a dispute to
be resolved which will immediately affect the rights of the parties.
Whether or not the rights of the parties might be affected in some
future election would be speculative. There being no live dispute
between the parties, I find that the matter is moot. Having made that
determination, I must consider whether the Court should exercise its
discretion to decide the matter regardless of the matter now being
moot.

[15] It is clear that this matter was fully argued in an adversarial context,
allowing the Court to hear and consider full and complete
submissions. Indeed, the lengthy delay in this matter, leading it to
become moot, was largely due to steps taken to ensure that the
issues were fully canvassed and the relevant record was fully before
the Court.
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[16] The nature of the matter is such that the issue is capable of repetition
but evasive of review. The issue will always arise in the aftermath of
a contested election. Time will be of the essence given the need for
certainty in the election results. Arguably, the analysis and argument
in this matter are equal to or greater than that which could be
provided immediately following an election.

[17] As stated in Borowski at pages 360-361:

Similarly an expenditure of judicial resources is considered


warranted in cases which although moot are of a recurring
nature but brief duration. In order to ensure that an important
question which might independently evade review be heard by
the court, the mootness doctrine is not applied strictly. This
was the situation in International Brotherhood of Electrical
Workers, Local Union 2085 v. Winnipeg Builders' Exchange,
supra. The issue was the validity of an interlocutory injunction
prohibiting certain strike action. By the time the case reached
this Court the strike had been settled. This is the usual result of
the operation of a temporary injunction in labour cases. If the
point was ever to be tested, it almost had to be in a case that
was moot. Accordingly, this Court exercised its discretion to
hear the case. To the same effect are Le Syndicat des Employés
du Transport de Montréal v. Attorney General of Quebec, 1970
CanLII 192 (SCC), [1970] S.C.R. 713, and Wood, Wire and
Metal Lathers' Int. Union v. United Brotherhood of Carpenters
and Joiners of America, 1973 CanLII 135 (SCC), [1973]
S.C.R. 756. The mere fact, however, that a case raising the
same point is likely to recur even frequently should not by
itself be a reason for hearing an appeal which is moot. It is
preferable to wait and determine the point in a genuine
adversarial context unless the circumstances suggest that the
dispute will have always disappeared before it is ultimately
resolved.

[18] Finally, this is not a matter which, because it has become moot, is
being argued in a factual vacuum, nor is it the type of matter that the
Court should decline to hear in deference to parliament or some other
legislative authority. By proceeding to consider the issues raised, the
Court would not be overstepping its authority, particularly when the
first issue to be decided is the justiciability of the matter.

[19] I find that the matter is moot but that the Court should exercise its
discretion and proceed to consider and decide the matter.
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B. Is the matter subject to judicial review?

[20] Fundamentally, judicial review is the authority of the Court to review


the decisions of the executive branch of government. It is the
authority of the Court to review decision-making of a public nature
rather than decision-making that is private and between individuals
and private entities. That being said, it can sometimes be difficult to
identify if an organization is exercising a public function.

[21] Historically, the distinction determined not only the scope of the
review but also the remedies which were available. More recently,
the distinction is less important when determining the available
remedies; however, it is of continued importance when determining
the scope of the review.

[22] Judicial review of the decision of a public decision-maker allows the


Court to review both the procedural fairness of the process used to
reach the decision and the substance of the decision. Of course, a
Court does not have the authority to simply substitute its own decision
for that of the tribunal. Judicial decision-making cannot turn on the
personal proclivities of the judge but must base itself in established
legal doctrine and binding precedent. It is this legal doctrine and
precedent which sets out the limits of the Court in a matter of judicial
review. (David Stratas, “The Canadian Law of Judicial Review: Some
Doctrine and Cases”, October 21, 2017)

[23] Historically, a successful review of a decision of a public decision-


maker permitted the Court to consider a number of prerogative
remedies, those being certiorari (a setting aside of the decision),
mandamus (a direction to the public tribunal to carry out its public
function), prohibition (a direction to the tribunal to stop doing
something it does not have the authority to do), habeas corpus (a
determination of the validity of a person’s detention or imprisonment),
and quo warranto (a challenge to a person’s entitlement to a public
office).

[24] Decisions and actions of a private nature were reviewed in


accordance with the law of contract. The Courts have always been
able to review the decisions and actions of private clubs to ensure
that they were in accordance with the clubs’ rules and by-laws, the
rules and by-laws being the terms of the contract (Baird v Wells
(1890), 44 Ch D 661). Over time the law developed such that in
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addition to reviewing decisions to ensure they complied with the rules


and by-laws of the consensual organization, the Court also placed
public policy limitations on such decisions. In such matters, only the
private law remedies of injunction (prohibiting someone from doing
something) and declaration (declaring a decision to be invalid) were
available. The distinction between public and private organizations in
regards to the possible remedies available has become less important
over time.

[25] The analysis which must be undertaken is:

1. Is the QIA a public or private organization?

2. If the QIA is a public organization,

i. what is the standard of review to be


applied to the decision under review;

ii. should the decision be declared invalid?

4. If the QIA is a private organization,

i. did the organization breach its own rules;

ii. was there a lack of procedural fairness;

iii. was the decision made in bad faith?

C. Is the QIA a public or private organization?

[26] The first step in the analysis is to determine if the organization is


public or private in nature.

[27] In determining whether an organization is public or private in nature


the Court must consider a number of criteria.

[28] One criteria is whether membership in the organization is voluntary or


involuntary. Some organizations, such as social clubs, may be clearly
voluntary in nature. With other organizations, the distinction is not so
clear. For example, in Kaplan v Canadian Institute of Actuaries
(Investigation Team), 1997 ABCA 310, 151 DLR (4th) 481[Kaplan],
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the Court was considering membership in the Canadian Institute of


Actuaries. Although a person did not need to be a member of the
association to work as an actuary, membership in the association
might be viewed as enhancing one’s qualifications. Further, certain
statutes required membership in the association to perform duties
under the statute. Hunt J., writing for the Alberta Court of Queen's
Bench and affirmed by the Alberta Court of Appeal, concluded that
the association was a private one, but not without some concerns
given the impact membership or non-membership had on livelihood,
noting that it is probably more akin to an amalgamation of a public
and private organization. Hunt J. further held that private
organizations’ decisions could be reviewed to ensure that the rules of
the organization were followed, that the procedure followed was not
contrary to natural justice, and that the decision reached was bona
fide.

[29] The approach in Kaplan was followed in a series of cases, including


Falk v Calgary Real Estate Board Co-operative Limited, 2000 ABQB
296, 265 AR 60; Lee v Yeung, 2012 ABQB 40, 531 AR 171; Setia v
Appleby College, 2013 ONCA 753, 118 OR (3d) 481.

[30] In Knox v Conservative Party of Canada, 2007 ABCA 295, 85 Alta LR


(4th) 34 [Knox], the Court considered whether the Conservative
Party’s nomination decisions and process were subject to judicial
review. The Court concluded that while the nomination process for
political parties was an important function in a democracy, a political
party is essentially a private organization. The Court stated at
paragraph 20 “if a tribunal is exercising powers that do not accrue to
private organizations, and that are only vested on the tribunal by
statute for the benefit of the public, then it is subject to judicial review”.
The Court went on to state that a tribunal may have both public and
private powers, thus, some decisions might be subject to review while
others would not.

[31] Following up on Knox, not all decisions made by a public organization


are subject to judicial review. Public organizations frequently make
decisions that are essentially private and contractual in nature. Such
decisions are not subject to review. The Court must go further and
determine if the particular decision which is sought to be reviewed
was a decision of a public nature (Air Canada v Toronto Port
Authority, 2011 FCA 347, [2013] 3 FCR 605 [Air Canada]).
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[32] In Air Canada, at paragraph 60, the Court provided guidance as to


how to determine if a decision is of a public nature and, therefore,
subject to judicial review. The Court stated that it must consider:

1. the character of the matter for which review is sought;

2. the nature of the decision-maker and its


responsibilities;

3. the extent to which the decision is founded in and


shaped by law as opposed to private discretion;

4. the body’s relationship to other statutory schemes or


parts of government;

5. the extent to which a decision-maker is an agent of


government or is directed, controlled, or significantly
influenced by a public entity;

6. the suitability of public law remedies;

7. the existence of compulsory power;

8. an exceptional category of cases where the conduct


has attained a serious public dimension.

[33] In this matter, it is necessary to place the QIA in the context of the
governance structures of Nunavut.

[34] Land claims negotiations between the Inuit of the Nunavut Land
Claims Settlement Area, as represented by Tunngavik Federation of
Nunavut [TFN, now Nunavut Tunngavik Incorporated, NTI] and the
federal government culminated in the signing of the Nunavut Land
Claims Agreement [NLCA] in 1993. The NLCA is fundamentally a
contract, albeit a special category of contract.

[35] The NLCA encompasses a wide range of matters which are to be


administered for the benefit of Inuit, including land ownership, sub-
surface rights, harvesting rights, and financial and economic benefits.
Individual beneficiaries of the NLCA have harvesting rights, rights of
entry and access to Inuit Owned Land [ILO], and employment
preferences not available to non-beneficiaries.
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[36] Pursuant to the NLCA many responsibilities and obligations are


delegated to Inuit organizations, referred to as Designated Inuit
Organizations [DIOs], of which the QIA is one, along with the other
two Regional Inuit Associations, the Kivalliq Inuit Association and the
Kitikmeot Inuit Association (see Article 39.1.3, NLCA).

[37] The public record of DIOs, which is required to be maintained


pursuant to Article 39.1.5 of the NLCA, indicates that the QIA has
significant powers, functions, and authority. It has representation and
responsibilities for the management of wildlife and the planning and
management of parks. It has both surface rights and water rights on
ILO in the Qikiqtani Region. The QIA is responsible for the
negotiation of Inuit Impact Benefit Agreements [IIBA] when major
developments are undertaken or parks established. An IIBA may
include terms for the benefit of individual members, such as rights
regarding employment.

[38] Pursuant to Article 35 of the NLCA, each community in Nunavut has


an Enrolment Committee. An individual becomes a beneficiary of the
NLCA by applying to the Enrolment Committee.

[39] Only those who have registered and been accepted as beneficiaries
under Article 35 of the NLCA can receive the rights and benefits
provided for in the NLCA. There are criteria which must be met to
qualify for enrolment. However, because one is able to satisfy the
requisite criteria does not mean that they are automatically a
beneficiary. They must take the step to enroll themselves. In this
sense, status as a beneficiary of the NLCA is voluntary; one may be
entitled to register as a beneficiary but may choose not to.

[40] Membership in the QIA derives from membership as a NLCA


beneficiary. For membership in the QIA, one must first be a
beneficiary of the NLCA and then must meet the additional
qualifications of residency in the Qikiqtani Region.

[41] Certainly, an individual can choose to not register as a beneficiary,


but to do so is to relinquish many rights and benefits to which one is
entitled. This is distinguishable from the circumstances the Court was
dealing with in Boucher v Métis Nation of Alberta Association, 2009
ABCA 5, 100 Alta LR (4th) 214, wherein the Court held that the Métis
Nation of Alberta Association was a private organization and its
decisions not subject to judicial review. In that case, the Court found
that a person’s Métis status and the rights that flowed from that status
13

were the same regardless of whether one was a member of the


Association or not. The same cannot be said for an Inuk of Nunavut
who decides not to enroll as a beneficiary of the NLCA.

[42] The nature of the powers exercised by NTI and the QIA are wide in
scope and significant in their impact on Inuit collectively and
individually. They relate to land, harvesting, employment, finance and
economics, social development, and culture. These are many of the
same areas that are managed by public governments. In my view,
the fact that NTI and the QIA exercise their powers not for the public
at large but only for Inuit does not make them any less public in
nature. The nature of the powers exercised and the fact that they are
exercised for the benefit of approximately 85 per cent of the
population of Nunavut, as well as many living outside of Nunavut,
takes them beyond the scope of functions carried out by a purely
private organization.

[43] For the individual, the nature of the rights which flow from being a
beneficiary are significant, as they relate to the individual’s status as
an Inuk and their aboriginal rights.

[44] I find that the QIA is a public organization.

D. Standard of review

[45] There are two standards of review in a judicial review:


reasonableness and correctness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 SCR 190). A reasonableness standard shows
deference to the decision-maker and recognizes that there may be a
range of decisions that are possible, acceptable outcomes given the
circumstances. A correctness standard does not show deference to
the decision-maker.

[46] A correctness standard will apply where the issue is a question of law
of general application and, therefore, of importance beyond the scope
of the tribunal.

[47] Instances where reasonableness standard should be applied are


where the authorizing statute or legislation indicates deference should
be shown to the decision-maker, the decision-maker has particular
14

expertise, and the decision-maker is engaged in interpreting its own


statute.

[48] I would reframe the issues as follows:

1. was the failure to provide Community Director ballots


to voters in Ottawa discriminatory;

2. was the failure to provide Community Director ballots


to voters in Ottawa a breach of procedural fairness
or natural justice;

3. if the answer to either of the two prior questions is


“yes”, what is the appropriate remedy?

[49] Different standards of review may apply to different issues.

[50] The allegation regarding discrimination in the electoral process


engages constitutionally-protected rights and has the potential to
impact elections generally. The standard of review is correctness.

[51] With respect to the allegation of a breach of procedural fairness or


natural justice, the decision of the Chief Returning Officer [CRO] is
one within her expertise; it involves an interpretation of the Election
Regulations, and the exercise of discretion. The standard of review is
reasonableness.

(i). Was the failure to provide Community Director ballots to voters in


Ottawa discriminatory?

[52] Although in her pleadings the Applicant set out discrimination as a


basis for setting aside the election results, there was no argument
provided on this point. The Applicant did not ground the
discrimination claim in either the Human Rights Act, SNu 2003, c 12
[Human Rights Act], or in section 15 of the Canadian Charter of
Rights and Freedoms, Part 1 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), c 11 [Charter]. No analysis
was undertaken. In my view, this alone would be sufficient to dismiss
this aspect of the Application.
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[53] However, there are additional reasons for dismissing this aspect of
the Application.

[54] The discrimination alleged is based on location of the voter on voting


day.

D.i.1. Human Rights Act

[55] The Human Rights Act provides as follows:

Prohibited grounds of discrimination


7. (1) For the purposes of this Act, the prohibited grounds of
discrimination are race, colour, ancestry, ethnic origin,
citizenship, place of origin, creed, religion, age, disability,
sex, sexual orientation, gender identity, gender expression,
marital status, family status, pregnancy, lawful source of
income and a conviction for which a pardon has been granted.

[56] The alleged discrimination in this matter does not fall within any of the
prohibited grounds set out in the Human Rights Act and on that basis
alone the Act is not applicable.

D.i.2. Section 15 of the Charter

[57] Section 15 of the Charter states:

(1) Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.

[58] Not all distinctions or differential treatment will amount to


discrimination.

[59] In determining whether there is discrimination pursuant to section 15,


the Court must apply a two-part test:

1. does the law create a distinction based on an


enumerated or analogous ground;

2. does the distinction create a disadvantage by


perpetuating prejudice or stereotyping? (R v Kapp,
16

2008 SCC 41, [2008] 2 SCR 483)

[60] The analysis of a discrimination claim pursuant to section 15 of the


Charter is complex. The Court simply has not heard any argument
with respect to the application of the section 15 jurisprudence to this
particular matter. Further, there is jurisprudence in which differences
in voting eligibility were found to not be discriminatory.

[61] In Re: Election Act (BC) (1986), 3 BCLR (2d) 376, 1986 CanLII 1084
(BC SC) [Re: Election Act (BC)], the Applicant applied for judicial
review of a decision by the Chief Electoral Officer. Pursuant to the
Election Act, RSBC 1979, c 10, voters who were not registered could
register on polling day in the electoral district in which they resided.
Voters who were registered but who moved to a different electoral
district were not able to register on polling day in the electoral district
in which they now resided. They were required to either register in
their new electoral district 20 days prior to election day or to cast an
absentee ballot in the electoral district in which they had previously
resided. The Applicant argued that such requirement discriminated
and should be set aside as being contrary to section 15 of the
Charter. The Court dismissed the application, stating at paragraph
16:

A distinction between a person registered as a voter in another


electoral district and one not so registered is not, in my view,
the sort of classification addressed by s. 15 of the Charter. …
The different treatment of registered and unregistered persons
is not prohibited by s. 15 of the Charter.

[62] In Scott v Canada (Chief Electoral Officer), 1990 CanLII 505 (BCSC),
71 DLR (4th) 516 [Scott], the Court considered a challenge to a
provision in the Canada Elections Act, RSC 1985, c E-2, that required
urban voters to be registered on the official electors’ list to be eligible
to vote. The same requirement for registration did not apply to rural
voters, who had the opportunity of registering at the polls on voting
day. The basis for the challenge was that the provision discriminated
between urban and rural voters and was contrary to section 15 of the
Charter. The Court found at page 9 that while there was a distinction
or differential treatment, it did not amount to discrimination as the
Applicant:

…cannot be classified as a member of a “discrete and insular


minority”. The impugned legislation does not distinguish the
17

[Applicant] from other persons on the basis of a personal


characteristic which shares the similarities of historical, social,
legal or political disadvantage as those enumerated in s. 15.

[63] In Orr v Peerless Trout First Nation, 2015 ABQB 5, 608 AR 205 [Orr],
the Court considered the validity of a provision in the Customary
Election Regulations which prohibited a person who has a civil suit
against the First Nation from running for office. One of the arguments
made was that the prohibition violated section 15 of the Charter. The
Court rejected the argument, stating that no evidence had been lead
or argument made to address the section 15 analysis. The Court
further stated at paragraph 22 that “I am unable to conclude that the
‘trait’ ascribed to the Applicant can be characterized as immutable.”
This reference was made in relation to the statement by the Supreme
Court of Canada in Corbiere v Canada (Minister of Indian and
Northern Affairs) [1999] 2 SCR 203, 216 NBR (2d) 25, wherein the
Court was considering the types of distinctions that might ground a
discrimination allegation.

D.i.3. Conclusion on discrimination allegation

[64] In conclusion, I dismiss the claim of discrimination for two reasons:


firstly, the Applicant has failed to plead and present arguments to
support the finding; secondly, the distinction in the matter before me is
akin to those in Re: Election Act (BC), Scott, and Orr.

(ii). Was the failure to provide Community Director ballots to voters in


Ottawa a breach of procedural fairness or natural justice?

[65] The Applicant submits that the failure to provide Community Director
ballots to voters in Ottawa was a breach of natural justice as it did not
meet the legitimate expectations of the voters. In support of this
argument the Applicant relies upon informational material provided by
the CRO prior to the election. The Applicant submits that the
informational material provided by the CRO led voters in Ottawa to
believe they would have the opportunity to vote for Community
Directors at Ottawa polling stations.

[66] The jurisprudence relied upon by the Applicant relates to the


participatory expectations of parties before administrative tribunals
who are tasked with deciding an issue. Specifically, the Applicant
18

relies upon the case of Baker v Canada (Minister of Citizenship and


Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193, which dealt with
hearings before the Refugee Board. The Court considered the nature
of the hearing that applicants could expect given the nature of the
decision being made.

[67] It is difficult to apply this principle to the matter before me. The
decision which is under review is the decision of the CRO to not
provide ballots for Community Director positions at Ottawa polling
stations. Application of the “reasonable expectations” principle in this
context suggests that the Applicant, and perhaps others, had some
reasonable expectation to participate in the making of that decision.
Clearly, that cannot be the case.

[68] What the Applicant is actually alleging is a violation of fairness


principles relating to the electoral process itself. The thrust of the
argument is that the CRO exercised her discretion in an unreasonable
manner.

[69] The Election Regulations provide:

7.1 The Chief Returning Officer may establish electoral


communities in order to facilitate the electoral process.

7.2 The Chief Returning Officer shall establish at least one


polling station for every electoral community in the Qikiqtani
Region.

7.3 Any location outside of the Qikiqtani Region that is


deemed by the Chief Returning Officer to contain significant
numbers of eligible voters shall comprise a polling station.

[70] The CRO is entitled to deference in the manner in which she


interprets and acts upon the Regulations. The Regulations are silent
on whether Community Director ballots must be provided at polling
stations outside of the Qikiqtani Region. Accordingly, it is the
responsibility of the CRO to interpret the Regulations. She interpreted
article 7.3 in such a manner that a polling station could be established
for the election of QIA executive members only. The evidence is that it
would be logistically difficult to provide Community Director ballots to
polling stations in Ottawa as it would not be possible to determine
how many voters from a particular community might be in Ottawa on
election day. The choice to provide polling stations in Ottawa for the
executive positions and not for the Community Director positions was
19

felt to be a balance between enfranchising beneficiaries and


maintaining the integrity of the electoral process.

[71] In my view, this is within the range of reasonable options and


deference must be shown to the decision. The application for judicial
review on grounds of a breach of procedural fairness or natural justice
is dismissed.

V. REMEDIES

[72] Despite having dismissed the application, some comment on the


remedies sought is warranted.

[73] The Applicant seeks two remedies. One is an order in the nature of
mandamus directing the CRO, in future elections, to operate Ottawa
polling stations in a procedurally identical manner as other polling
stations.

[74] There are two concerns with the remedy sought.

[75] First, the CRO is not duty bound to operate polling stations in Ottawa.
If the Court were to make such an order, the CRO may well decide to
not operate any polling stations in Ottawa. The goal of elections is to
enfranchise people to the fullest extent possible while maintaining the
integrity of the electoral process. An order in the nature of that sought
by the Applicant might well have the opposite effect, in that a decision
may be made that no polling stations will be provided outside of the
Qikiqtani Region.

[76] Further, there is a question as to whether the Court even has the
jurisdiction to make an order in the nature of mandamus in these
circumstances. As noted by the Court in Re: Election Act (BC), at
paragraph 23, mandamus “will not lie to compel the performance of
anything but an imperative duty”. Given that the CRO has no duty to
establish polling stations in Ottawa or anywhere outside of the
Qikiqtani Region, it is questionable whether the Court would have
jurisdiction to direct the manner in which such polling stations will
operate, should they be established. It is one thing to set aside a
decision or action because it is invalid; it is quite another to direct that
a specific decision or action be taken.
20

VI. CONCLUSION

1. Is the QIA a public or private organization?

Public.

2. If the QIA is a public organization,

i. was the failure to provide Community Director ballots to


voters in Ottawa discriminatory?

Standard of review is correctness, the failure to


provide Community Director ballots was not
discriminatory;

ii. was the failure to provide Community Director ballots to


voters in Ottawa a breach of procedural fairness or natural
justice?

Standard of review is reasonableness, the failure to


provide Community Director ballots was not a breach
of procedural fairness or natural justice.

3. If the answer to either of the two prior questions is “yes”, what


is the appropriate remedy?

If I am wrong on either of the two earlier findings, the


remedies sought by the Applicant are denied.

4. If the QIA is a private organization,

i. did the organization breach its own rules;


ii. was there a lack of procedural fairness;
iii. was the decision made in bad faith?

Unnecessary to answer given the finding on the


earlier questions.
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VII. COSTS

[77] There was an interim application in this matter that dealt with the
issue of what documentation would be provided by the Respondent to
the Applicant (known as “Settling the Record”). The judge who heard
that matter ruled that the Applicant was to pay costs to the
Respondent regardless of the outcome of the ultimate hearing. If
counsel are unable to agree on the costs for this aspect of the
application, they may contact the trial coordinator to set the matter for
a hearing.

[78] The Applicant has not been successful in the ultimate hearing.
However, given that there was a public interest element to the
application, I decline to grant costs.

Dated at the City of Iqaluit this 9th day of May, 2018

___________________
Justice S. Cooper
Nunavut Court of Justice

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