Beruflich Dokumente
Kultur Dokumente
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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
[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;
II. EVIDENCE
[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
IV. ANALYSIS
[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.
[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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[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.
[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.
[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.
[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.
D. Standard of review
[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.
[53] However, there are additional reasons for dismissing this aspect of
the Application.
[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.
(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.
[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:
[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:
[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.
[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.
[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.
V. REMEDIES
[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.
[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.
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VI. CONCLUSION
Public.
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.
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Justice S. Cooper
Nunavut Court of Justice