Judgments

[1997] 1 F.C. 475

T-1690-94

Barbara Allison in Her Capacity as Chief and Pauline Terbasket in Her Capacity as Councillor of the Lower Similkameen Indian Band (Plaintiffs) (Defendants by counterclaim)

v.

Barnett Allison, Robert Edward, Nancy Allison, Karen Terbasket and Moses Louie (Defendants) (Plaintiffs by counterclaim)

Indexed as: Lower Similkameen Indian Band v. Allison (T.D.)

Trial Division, Heald D.J.—Vancouver, June 17; Ottawa, November 5, 1996.

Federal Court jurisdiction — Trial Division — Indian Band elections — Action for declaration plaintiffs duly elected chief and councillor respectively, and for damages — Action by counterclaim seeking declaration election of plaintiffs null, void and mandamus for new election — Whether statutory grant of jurisdiction — Defendants merely band members, no evidence acting as Crown agents — Even if band federal board, relief available only upon judicial review — Court lacking jurisdiction to determine action or counterclaim.

Native peoples — Elections — Plaintiffs seeking declaration duly elected as chief, councillor — Defendants (plaintiffs by counterclaim) seeking declaration election void, mandamus for new election — If Court had jurisdiction, decision on merits would have been: none of minor violations of Band’s Custom Elections Regulations affected election results, therefore no grounds for appeal, no reason to declare election null and void.

The plaintiffs initiated an action for a declaration that they rightfully held the offices of Chief and Councillor of the Band Council of the Lower Similkameen Indian Band (LSIB), and for damages. The defendants (plaintiffs by counterclaim), five members of the LSIB, also commenced an action seeking a declaration that the election of the plaintiffs (defendants by counterclaim) was null and void and mandamus that a new election be held.

The issues were whether the Court had jurisdiction to hear and determine the action as against the five named members of the LSIB and the action by counterclaim as against the Band Council of the LSIB. If so, whether the Court should grant the relief sought by the plaintiffs or the plaintiffs by counterclaim.

The plaintiffs had originally filed a writ of summons and statement of claim in the Supreme Court of British Columbia seeking interlocutory injunctive relief and damages against the defendants. The plaintiffs had also, on the same date, filed a notice of motion seeking the same interlocutory relief. The Supreme Court Judge who heard the matter declared that the application for interlocutory injunctive relief was a matter which fell within the jurisdiction of the Federal Court and for that reason dismissed the application.

Held, the action and action by counterclaim should be dismissed on the grounds that the Court had no jurisdiction to address the matters raised therein. Had the Court been clothed with jurisdiction, the counterclaim would have been dismissed on its merits, and the declaration sought by the plaintiffs would have been issued.

The jurisdiction of the Federal Court was determined by reference to the three-part test set out by the Supreme Court of Canada in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752. There must be a statutory grant of jurisdiction by the federal Parliament. The Indian Act revealed no statutory grant of jurisdiction with respect to the claims at issue in the main claim and the counterclaim. There remained the Federal Court Act. However, paragraph 17(5)(b) thereof (granting the Court concurrent original jurisdiction in proceedings against agents of the Crown) did not provide jurisdiction as the defendants in the main claim were simply members of the LSIB. There was no evidence that they were acting as agents of the Crown. Nor was there any evidence that the defendants by counterclaim, the LSIB Council, were acting at any material time as an agent of the Crown. Even if the LSIB was a federal board, section 18 did not provide jurisdiction because relief under this section was available only in an application for judicial review made under section 18.1 of the Act. There was no provision in the Act for converting an action into, or treating an action as, a judicial review application. In order for section 25 to act as a statutory grant of jurisdiction, the plaintiffs or plaintiffs by counterclaim would have had to establish that the claim for relief was made or a remedy sought under the laws of Canada; and that no other court under any of the Constitution Acts had jurisdiction in respect of that claim or remedy. There might have been jurisdiction had the plaintiffs and defendants proceeded by application for judicial review, not by way of an action. Sections 25 and 44 alone could not vest this Court with jurisdiction even if the relief is not available elsewhere. Parliament must have intended and enacted, either expressly or by clear implication, some right to enforcement by the Federal Court before such jurisdiction can be asserted.

Since the defendants were merely subjects rather than a federal board or an agent of the Crown, the plaintiffs ought to be able to seek declaratory relief from a provincial superior court such as the British Columbia Supreme Court because the remedy sought was an equitable one.

If judicial review was sought, then this Court had jurisdiction, however, the application must be made by virtue of section 18. Section 25 cannot be said to relieve parties of the requirement of framing an action or application properly and within the prescribed limitation periods.

Nor can section 25 provide a statutory grant of jurisdiction with respect to the counterclaim. If it is to be characterized as an application for judicial review of a decision of a federal board, it should have been framed as such pursuant to section 18. The failure to frame an application for judicial review properly did not satisfy the requirement of section 25 that there be no court constituted, established or continued which had jurisdiction in respect of the remedy sought.

This Court therefore had no jurisdiction to hear and determine the action or the action by counterclaim or the matters raised therein.

In case the above conclusion was wrong, the following findings of fact and conclusions on the merits of the case were made on the basis of the evidence adduced at trial.

(1) The Returning Officer was appointed in a manner contrary to Part III, Article 1 of the LSIB Custom Election Regulations. (2) The Appeal Board was not established prior to the close of the nomination meeting, contrary to Part IV, Article 9. (3) The form of the ballots was improper, contrary to Part V, Article 6. (4) The procedure for assisting an elder was not strictly observed, contrary to Part VI, Article 6.

Even though this was not an appeal of the election, the grounds for appeal set out in Part VIII, Article 1 of the Regulations (corrupt practice, violation which might have affected the result, ineligible candidate) provide a useful guide for determining whether a particular violation should render the election results null and void or whether it merely resulted in a technical breach which did not undermine the spirit of the Regulations.

There was no evidence of any ineligible candidate or any corrupt practice having occurred in connection with this election. The Electoral Officer, Returning Officer and scrutineers acted in the utmost of good faith in conducting this election. And none of the violations established to have occurred with respect to this election were violations that might have affected the results and thus do not constitute grounds for appeal. Since the election could not have been successfully appealed, there was no reason to declare the results null and void.

The Regulations provided that the ballots could be destroyed if 30 days have lapsed since the election and if there were no appeals. The documents were destroyed later than the 30-day time period. Within the 30-day limit, a document was brought to the Band Office complaining about the election, declaring the results null and void and demanding a re-election. However, that document did not constitute an appeal within the contemplation of Part VIII, Article 1 of the Regulations. The destruction of the ballots had no effect on the validity of the election.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) (as am. by S.C. 1990, c. 8, s. 1), 17 (as am. idem, s. 3), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5), 25, 44.

Indian Act, R.S.C., 1985, c. I-5.

CASES JUDICIALLY CONSIDERED

APPLIED:

ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Powderface v. Stoney Band, [1996] F.C.J. No. 1113 (T.D.) (QL); Canada (Human Rights Commission) v. Canadian Liberty Net, [1996] 1 F.C. 804(C.A.).

REFERRED TO:

Lower Similkameen Indian Band v. Allison, [1994] F.C.J. No. 1177 (T.D.) (QL); Lower Similkameen Indian Band v. Allison, [1996] F.C.J. No. 556 (T.D.) (QL); Lower Similkameen Indian Band v. Allison, [1996] F.C.J. No. 589 (T.D.) (QL); Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142 (1993), 13 Admin. L.R. (2d) 266; [1994] 1 C.N.L.R. 182; 63 F.T.R. 242 (T.D.); Cree Regional Authority v. Canada (Federal Administrator), [1991] 2 F.C. 422 (1991), 48 Admin. L.R. 292; [1991] 2 C.N.L.R. 41; 42 F.T.R. 160 (T.D.); affd [1991] 3 F.C. 533 (1991), 81 D.L.R. (4th) 659; 1 Admin L.R. (2d) 173 (C.A.); Searle Canada Inc. v. Novopharm Ltd. (1990), 31 C.P.R. (3d) 1; 37 F.T.R. 177 (F.C.T.D.); Robertson v. Canada, [1986] F.C.J. No. 210 (T.D.) (QL); Canada (Human Rights Commission) v. Heritage Front, [1994] 1 F.C. 203 (1993), 68 F.T.R. 161 (T.D.).

ACTION for a declaration that the plaintiffs rightfully hold the offices of Chief and Councillor of the Band Council of the Lower Similkameen Indian Band, and for damages; COUNTERCLAIM seeking a declaration that the election of the plaintiffs (defendants by counterclaim) is null and void and mandamus that a new election be held. Action and counterclaim dismissed on the ground that the Court has no jurisdiction to address the matters raised therein.

COUNSEL:

B. Rory B. Morahan for plaintiffs.

Manuel A. Azevedo for defendants.

SOLICITORS:

Morahan & Aujla, Victoria, British Columbia, for plaintiffs.

Rankin & Company, Vancouver, British Columbia, for defendants.

The following are the reasons for judgment rendered in English by

Heald D.J.: This matter was initiated by way of statement of claim filed July 13, 1994. It is therefore an action rather than an application for judicial review. After numerous amendments, the claim is for a declaration that the plaintiffs rightfully hold the offices of Chief and Councillor of the Band Council of the Lower Similkameen Indian Band (the LSIB). The defendants in the main claim are five named members of the LSIB. They are not sued in any capacity as they no longer hold office in the Band Council.

A counterclaim was also commenced on September 9, 1994, seeking a declaration that the election of the plaintiffs (defendants by counterclaim) is null and void. The plaintiffs by counterclaim are the same five named members of the LSIB designated as defendants in the amended statement of claim referred to supra. The defendants by counterclaim are the Band Council of the LSIB. It is well established law that an Indian band council is a federal board, as that term is defined in the Federal Court Act.[1]

The plaintiffs have brought a motion, dated October 10, 1996, seeking to have the counterclaim struck on the grounds that it discloses no reasonable cause of action or dismissed on the grounds that this Court has no jurisdiction in the matter. Since the question of jurisdiction must be addressed in any case before deciding on the merits, I will deal with this motion at the same time.

I.          ISSUES

A. Does the Court have jurisdiction to hear and determine the action as against the five named members of the LSIB and the action by counterclaim as against the Band Council of the LSIB?

B. If so, should the Court grant the relief sought by the plaintiffs or the plaintiffs by counterclaim?

II.         JURISDICTION OF THIS COURT

1.         The action in the Supreme Court of British Columbia

On June 30, 1994, the plaintiffs, along with one other councillor of the LSIB, filed a writ of summons and statement of claim in the Supreme Court of British Columbia[2] seeking the following relief as against four of the five individual defendants now named in the Federal Court action:

(a) An interlocutory and permanent injunction restraining the Defendants and each of them and their servants or agents or other persons whomsoever from acting as signing authorities with respect to any bank account in the name of or in the control of the LSIB or LSIB Council or in any way purporting to change or attempting to change the existing signing authorities of such bank accounts or otherwise interfering with any such bank accounts in any way.

(b) An interlocutory and permanent injunction restraining the Defendants and each one of them and their servants or agents or other persons whomsoever from acting in the capacity of Chief and Council of the LSIB or otherwise from performing or carrying on or attempting to perform or carry on the duties of the LSIB Council or otherwise holding themselves out as the Chief and Council of the LSIB, unless they are in future duly elected to those offices.

(c) An interlocutory and permanent injunction restraining the Defendants and each of them and their servants or agents or other persons whomsoever from interfering with or otherwise obstructing the carrying on of the usual duties and functions of the Chief and Council by the personal Plaintiffs or the carrying on and performance of the usual duties of the LSIB staff, including those duties and functions carried on at the LSIB office, Keremeos, British Columbia.

(d) General damages.

(e) Special damages.

(f) Costs.

(g) Pre-judgment interest.

(h) An Order that any peace officer having jurisdiction in the Province of British Columbia who, on reasonable and probable grounds, believes that the Defendants or any other person is in breach of this Order will immediately arrest the said person and bring him or her before this court on the next court date following the arrest to be dealt with at an inquiry to determine whether he or she had committed a breach of this Order and is in contempt of this court.

On the same date, the plaintiffs filed a notice of motion seeking the interlocutory relief referred to in paragraphs (a), (b), (c) and (h) of the above statement of claim.

On July 8, 1994, Mr. Justice Wong of the Supreme Court of British Columbia rendered a decision in which he expressed the view that interlocutory injunctive relief seemed to be appropriate. However, on the question of jurisdiction, he decided as follows:

Counsel for the Defendants argued that this Court does not have jurisdiction to grant the relief asked, and that in fact, the application should be made in the Federal Court. He relies on the Saskatchewan Queens Bench decision of Whitefish, Rabbitskin, Joseph and Dreever vs. Department of Indian Affairs and Northern Development and Chief of Councillors of Big River Indian Band, found reported in (1985), 5 W.W.R. 664, at pages 666 to 667, and the more recent Federal Court decision of Sparvier vs. Cowessess Indian Band No. 73, found reported at (1994), 1 Canadian Native Law Reports, 182, at pages 185 to 186, which basically held that for purposes of judicial review an Indian Band Council and persons purporting to exercise authority over matters of Indian Bands, who act pursuant to the provisions of the Indian Act, constitute a Federal Board, Commission or other tribunal as defined in section 2 of the Federal Court Act and thus comes within the exclusive jurisdiction of the Federal Court.

Counsel for the Plaintiffs submitted that the exclusive Federal Court jurisdiction does not apply in situations where persons clearly improperly arrogate power to themselves, however, the key words are those found in section 2 of the Federal Court Act, namely:

“… a person having, exercising or purporting to exercise jurisdiction or powers conferred by or under an act of parliament …”

Parenthetically I emphasize the words `purporting to exercise jurisdiction or powers’, which then gives exclusive jurisdiction to the Federal Court. From a judicial policy standpoint, this also makes good sense, since judicial review of controverted Indian Band elections and decisions of Band Council clearly falls within Federal Court jurisdiction. To do otherwise would only create uncertainty as to the appropriate forum for relief and confer a limited niche of jurisdiction to this Court when it is unnecessary. Therefore, I must declare that this application for interlocutory injunction relief is a matter which falls within the jurisdiction of the Federal Court and this application must be dismissed.

2.         The main action in the Federal Court

On July 13, 1994, the plaintiffs filed a statement of claim in the Federal Court seeking damages, declaratory and injunctive relief. On July 18, 1994 [[1994] F.C.J. No. 1177 (T.D.) (QL)], Madam Justice Reed denied interlocutory injunctive relief. She found there to be a serious issue as to the validity of the election, but denied relief on the grounds that there was no evidence before her of irreparable harm should the defendants be permitted to continue holding themselves out as the Band Council.

The original statement of claim of July 13, 1994, was amended in July of 1995. As amended, it contained seven paragraphs which were very similar to those appearing in the statement of claim in the B.C. Supreme Court. On February 22, 1996, the plaintiffs filed a forty-four paragraph re-amended statement of claim, seeking numerous forms of relief.

On April 25, 1996, Prothonotary Hargrave ordered struck from the re-amended statement of claim those prayers for relief relating to libel, slander, damages for wrongful interference with private property, nuisance, trespass, general damages, special damages, punitive damages and pre-judgment interest.[3] He did so on the grounds that these forms of relief were not within the jurisdiction of the Federal Court. However, he refused to strike those portions of the claim for relief related to obstruction by the defendants of the plaintiffs in their operation of the Band Office and as elected Chief and Council member. He found these provisions to be consistent with the plaintiffs’ seeking a declaration as to their status. The Court’s jurisdiction with respect to such a declaration was not contested and Prothonotary Hargrave did not consider it.

Following the most recent amendment to the statement of claim dated May 10, 1996, the plaintiffs reduced their claim to the following:

(a)  A declaration that Barbara Allison is the Chief, and Pauline Terbasket is the Councillor of the LSIB, for the current term of office to which they were respectively elected, unless any of them sooner resigns her office;

(b)  General damages;

(c)  Costs of this action;

(d)  Such further and other relief as this Honourable Court may seem met [sic].

3.         The action by counterclaim

As noted supra, on September 9, 1994, the defendants filed a statement of defence and counterclaim seeking a declaration that the March 29, 1994 election of the plaintiffs (defendants by counterclaim) for Band Council is null and void, an order in the nature of mandamus that a new election be held in accordance with the LSIB’s Custom Election Regulations, and costs.

By order dated May 3, 1996, Prothonotary Hargrave dismissed the plaintiffs’ motion to strike the counterclaim on the grounds that the Federal Court had no jurisdiction.[4] The plaintiffs only argued one issue before him. They argued there was no jurisdiction to hear the counterclaim since the defendants had not exercised their statutory right of appeal to an election appeal board and thus, ought to be denied discretionary relief from this Court. Prothonotary Hargrave found that the question of whether or not an appeal had been filed was a disputed question of fact which was best left to be determined by the Trial Judge with the assistance of witnesses and oral testimony. He made no findings on the jurisdiction of the Court generally, aside from noting in obiter that disputed elections of Indian band councils is within the jurisdiction of the Federal Court.

4.         Submissions of the parties on the question of jurisdiction

On August 13, 1996, following trial of this matter, I requested written submissions from the parties regarding the jurisdiction of the Court.

The plaintiffs (defendants by counterclaim) chose not to address the question of jurisdiction to hear the main action. They argue that there is no jurisdiction to hear the counterclaim since the remedies sought are only available by way of an application for judicial review. They argue that the counterclaim was framed as an action rather than as a judicial review, that the limitation period to file an application for judicial review has now elapsed, that the plaintiffs (defendants by counterclaim) are not named in their capacity as the LSIB Council and that, in any case, there is no decision of the LSIB Council to be reviewed.

The defendants (plaintiffs by counterclaim) chose to deal with the jurisdiction of this Court with respect to the claim and the counterclaim together. They agree that this matter cannot be treated as a judicial review, but suggest that this Court has jurisdiction to determine the matter pursuant to sections 25 and 44 of the Federal Court Act since the Supreme Court of British Columbia has declined jurisdiction and there is an existing body of federal law relating to elections of band councils under the Indian Act [R.S.C., 1985, c. I-5].

5.         Analysis of this Court’s jurisdiction in the matter

The jurisdiction of the Federal Court is determined by reference to the three-part test set out by the Supreme Court of Canada in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al.[5] The following criteria are essential to this Court’s jurisdiction:

1. There must be a statutory grant of jurisdiction by the federal Parliament.

2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act, 1867 [6]

Each of these criteria must be analyzed with respect to both the main claim and the counterclaim to determine whether the Court has jurisdiction in this matter.

The statutory grant of jurisdiction by the federal Parliament must be found in either the Federal Court Act or another Act of Parliament. An examination of the Indian Act reveals no statutory grant of jurisdiction with respect to the claims at issue in the main claim and the counterclaim. Therefore, if the first element of the test in ITO is to be satisfied, the statutory grant of jurisdiction must be found in the Federal Court Act. Although the parties have only referred me to sections 25 and 44 of the Act as supporting jurisdiction, I propose to refer as well to sections 17 [as am. by S.C. 1990, c. 8, s. 3] and 18 [as am. idem, s. 4] and to briefly explain why I do not consider sections 17 or 18 as being applicable in this case.

i.          Section 17 of the Federal Court Act

Section 17 of the Federal Court Act is a statutory grant of jurisdiction with respect to several matters, all of which involve the Crown. In this case, the Crown is not a party to either the main claim or counterclaim. The only statutory grant of jurisdiction found in section 17 that does not require the Crown to be a defendant is paragraph 17(5)(b), which reads as follows:

17. …

(5) The Trial Division has concurrent original jurisdiction

…

(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.

The defendants in the main claim herein are simply members of the LSIB. There is no evidence that they were acting at any material time as officers, servants or agents of the Crown. Accordingly, paragraph 17(5)(b) does not vest jurisdiction in the Court in such circumstances.

The defendants by counterclaim are the LSIB Band Council, and are therefore a federal board. As discussed in my reasons for judgment in Powderface v. Stoney Band,[7] a band council is presumed not to be an agent of the Crown although it can act in that capacity in certain circumstances. There is no evidence in the case at bar that the defendants by counterclaim, the LSIB Council, were acting at any material time as an agent of the Crown.

Therefore, I conclude, for the foregoing reasons, that paragraph 17(5)(b) supra, does not provide a statutory grant of jurisdiction with respect to the main claim or the counterclaim herein.

ii.         Section 18 of the Federal Court Act

Section 18 of the Federal Court Act reads as follows:

18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

(2) The Trial Division has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

The defendants in the main claim are neither the Crown nor a federal board. They are simply five members of the LSIB, not sued in any official capacity. Section 18 provides no statutory grant of jurisdiction in relation to claims as against individuals.

The counterclaim differs from the main claim in that the defendants by counterclaim, the LSIB Council, are a federal board. However, subsection 18(3) of the Federal Court Act clearly states that although declaratory relief and a writ of mandamus may be ordered against a federal board, relief under this section is only available in an application for judicial review pursuant to section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act.

As I stated in Powderface, supra, the relief set out in subsection 18(1) of the Act may only be obtained on application for judicial review, and the Court is without jurisdiction to hear and determine an action commenced for such relief. There is no provision in the Act for converting an action into, or treating an action as, a judicial review application and, in any case, no such motion was made by the plaintiffs by counterclaim.

Accordingly, I am of the view that section 18 does not provide the Court with jurisdiction to determine the claim or the counterclaim in this action.

iii.        Sections 25 and 44 of the Federal Court Act

The defendants (plaintiffs by counterclaim) rely on sections 25 and 44 of the Federal Court Act as providing a statutory grant of jurisdiction which authorizes this Court to consider both the claim and the counterclaim. These sections read as follows:

25. The Trial Division has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

…

44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions as the Court deems just.

In order for section 25 to act as a statutory grant of jurisdiction in the case at bar, the defendants or plaintiffs by counterclaim would have to establish that:

1. The claim for relief is made or a remedy is sought under or by virtue of the laws of Canada; and

2. No other court constituted, established or continued under any of the Constitution Acts has jurisdiction in respect of that claim or remedy.

a.         The main claim

As noted supra, the action in the B.C. Supreme Court was filed on June 30, 1994 and the decision of Mr. Justice Wong rendered on July 8, 1994. The timing of the B.C. Supreme Court action is of importance since, during the period of June 23, 1994, to October 11, 1994, it was unclear who constituted the LSIB’s Band Council. It was not until October 11, 1994, that the plaintiffs were reinstated and recognized as the Band Council by the Department of Indian Affairs. Thus, a proceeding commenced prior to October 11, 1994 seeking an injunction to prevent the defendants from holding themselves out as the Band Council would have sought relief against a federal board.

Indeed, Mr. Justice Wong described the nature of the action before him as seeking judicial review of the election process held on June 23, 1994. He relied on the decision of Mr. Justice Rothstein in Sparvier v. Cowessess Indian Band[8] as authority for the proposition that judicial review of a decision of an Indian band council and persons purporting to exercise authority over matters relating to Indian bands fell within the exclusive jurisdiction of the Federal Court pursuant to section 18 of the Federal Court Act.

Accordingly, pursuant to Mr. Justice Wong’s decision of July 8, 1994, the better course of action for the plaintiffs would have been to commence an application for judicial review in this Court. The problem arises since, despite the clear suggestion by Mr. Justice Wong, the plaintiffs did not then bring an application for judicial review to the Federal Court. The action in this Court was commenced on July 13, 1994, also during the time frame when the defendants were purporting to act as the Band Council, by way of statement of claim. The plaintiffs have not sued the defendants in their capacity as Band Council, nor can they since the defendants do not presently hold any official capacity. If the plaintiffs wanted relief against a federal board, they should have proceeded by application for judicial review, not by way of an action. For the reasons given above, it is not possible to now treat the action as an application for judicial review pursuant to section 18.

Mr. Justice Rouleau has suggested that, in the absence of any other body capable of exercising a supervisory function over actions of a federal administrator dealing with Indian Affairs, this Court could assert jurisdiction pursuant to section 44 and, presumably, section 25.[9] Mr. Justice Joyal has also given a liberal interpretation to section 44 of the Federal Court Act.[10] Pending final determination by the Human Rights Commission of the legality of the conduct restrained, he considered whether he could cite the parties for contempt of a free-standing injunction issued by the Federal Court. He explained at pages 223-224:

… I believe there is jurisdiction given to this Court under section 44 of the Federal Court Act [R.S.C., 1985, c. F-7] to make such order as appears just and convenient. Although this power is given in statute form, it is no more than a recognition of the extensive jurisdiction to superior courts recognized at common law.

In the celebrated case, Beddow v. Beddow (1878), 9 Ch.D. 89, Sir George Jessel, M.R., said this, at page 93:

I have unlimited power to grant an injunction in any case where it would be right and just to do so.

That same principle or doctrine was adopted by McEachern C.J.B.C. in Re B.C. Govt. Employees’ Union (1983), 48 B.C.L.R. 1 (S.C.), and confirmed by the British Columbia Court of Appeal, (1985), 64 B.C.L.R. 113, and further endorsed by the Supreme Court of Canada, [1988] 2 S.C.R. 214.

However, the Federal Court of Appeal seems to have overruled this line of authority. In Canada (Human Rights Commission) v. Canadian Liberty Net,[11] it was found that unless there was a specific grant of authority to the Federal Court for the final determination of the case, section 44 did not authorize the Court to grant injunctive relief. The Court specifically considered whether section 25 could provide such jurisdiction where the Canadian Human Rights Act [R.S.C., 1985, c. H-6] did not and rejected the possibility. Thus, it would seem that sections 25 and 44 alone cannot vest this Court with jurisdiction even if the relief is not available elsewhere. Parliament must have intended and enacted, either expressly or by clear implication, some right to enforcement by the Federal Court before such jurisdiction can be asserted. This interpretation is consistent with earlier decisions of the Trial Division.[12]

Furthermore, the present case is distinguishable from the Cree Regional Authority and the Heritage Front cases, both supra, in that there is, in this case, another body with jurisdiction over both the matter and the remedy. Since the defendants are merely subjects rather than a federal board or an agent of the Crown, the plaintiffs ought to be able to seek declaratory relief from a provincial superior court such as the B.C. Supreme Court because the remedy being sought is an equitable one. The fact that the matter had already been before that court by way of an application for judicial review of a federal board is not determinative of the Provincial Court’s jurisdiction to hear an action for declaratory relief as against individuals. Any appeal from that decision would be taken to the British Columbia Court of Appeal.[13]

If what is sought is judicial review of the decision of a federal board, then the B.C. Supreme Court has refused to grant such relief. However, there still is a body with jurisdiction over the matter. Such an application would be within the jurisdiction of this Court. However, it would be so only by virtue of section 18. Section 25 cannot be said to relieve parties of the requirement of framing an action or application properly and within the prescribed limitation periods.

Thus, it cannot be said that there is no court constituted, established or continued which has jurisdiction in respect of the remedy sought.

b.         The counterclaim

For the same reasons, I find that section 25 does not provide a statutory grant of jurisdiction with respect to the counterclaim. If the counterclaim is to be characterized as an application for judicial review of a decision of a federal board, it should have been framed as such pursuant to section 18. The failure to frame an application for judicial review properly does not satisfy the requirement of section 25 that there be no court constituted, established or continued which has jurisdiction in respect of the remedy sought.

6.         Conclusions on the question of jurisdiction

Since I have found that there is no statutory grant of jurisdiction by the federal Parliament, I must conclude that the test set out in ITO is not satisfied. I need not therefore consider the other two requirements set out in that case. This Court has no jurisdiction to hear and determine the action or the action by counterclaim or the matters raised therein.

However, in case I am wrong in the above conclusion, I would set out the following findings of fact and conclusions on the merits of the case which I am prepared to make on the basis of the evidence adduced at trial.

III.        ISSUES ON THE MERITS OF THE CASE

1. Should the Court declare that Barbara Allison is the Chief and Pauline Terbasket a councillor of the LSIB for the current term of office?

a. Was the election conducted in violation of any of the LSIB’s Custom Election Regulations?

b. If the answer to (a) supra is in the affirmative, what is the effect of those violations on the validity of the election?

c. What is the effect of the destruction of the ballots by the Electoral Officer?

2. If not, should the Court declare the LSIB election of March 29, 1994 null and void?

3. If so, should the Court grant an order in the nature of mandamus ordering a new election to be held in accordance with the Custom Election Regulations?

IV.       ANALYSIS OF THE MERITS OF THE CASE

The LSIB election of March 29, 1994, was held to elect persons to the offices of Chief, Councillor (four-year term) and Councillor (two-year term). The plaintiffs in the main action seek a declaration that affirms the results of the election with respect to the office of Chief, to which Barbara Allison was elected, and to the office of Councillor (four-year term), to which Pauline Terbasket was elected. Robert Heinrich, who was elected to the office of Councillor (two-year term), is not a party to this action. The plaintiffs by counterclaim seek a declaration that the election of March 29, 1994, is null and void. Therefore, the issue in the main action and in the counterclaim is reduced to a determination of the validity of the March 29, 1994, election. There is no dispute that the election was to be conducted in accordance with the LSIB Custom Election Regulations (the Regulations).

1. Should the Court grant a declaration that Barbara Allison is the Chief and Pauline Terbasket the Councillor of the LSIB for the current term of office?

a.         Was the election conducted in violation of any of the LSIB’s Custom Election Regulations?

In the statement of defence, the defendants have alleged that the election was conducted contrary to eleven (11) provisions of the Regulations.[14] Accordingly, I shall address each of these allegations and determine what breaches of the Regulations, if any, occurred during the election.

i.          The electoral and returning officers were not appointed at least two weeks prior to the date of the nomination meeting contrary to Part III, article 1 of the Regulations.

The Regulations define the Electoral and Returning Officer as follows, at Part I, Article 1:

ELECTORAL AND RETURNING OFFICER means a person appointed by the mebers [sic] of the Band to direct and conduct the Band Council nomination meeting and the Band Council Elections.

The provision of the Regulations that it is alleged was breached, Part III, Article 1, reads as follows:

The Electoral and Returning Officer shall be appointed at a General Meeting by a majority of the voters at a band meeting at least two (2) weeks prior to the date of the nominating meeting.

Although it appears from the above sections of the Regulations that the Electoral Officer and Returning Officer are the same person, there are other provisions throughout the Regulations that indicate that the intention is for there to be two positions held by separate individuals. The defendants have conceded in the admissions of fact[15] that Joan Bent was the Electoral Officer for the election and was properly appointed by Nancy Allison on February 16, 1994.

With respect to the Returning Officer, the evidence indicates that Theresa Ann Terbasket acted in this capacity for the election. Theresa testified that someone had asked her, in person, to be the Returning Officer for this election: she could not recall who the person was. Joan Bent testified that either Karen Terbasket or Nancy Allison had appointed Theresa to be Joan’s assistant.

The Regulations require the Returning Officer to be appointed at a general meeting by a majority of the voters, at least two weeks prior to the nomination meeting, which was held on March 14, 1994. There was no evidence that Theresa Ann Terbasket was appointed in the manner prescribed by the Regulations, nor was there evidence of the date of Theresa’s appointment. Accordingly it seems apparent that the Returning Officer, Theresa Ann Terbasket was appointed in a manner contrary to Part III, Article 1 of the Regulations.

ii.         The Appeal Board was not established at the nomination meeting, contrary to Part IV, article 9 of the Regulations.

The Regulations provide for election results to be appealed within 30 days of an election. They also stipulate that an appeal board be established to address any such appeals. There are two different sections in the Regulations which pertain to the establishment of an appeal board. Those sections are inconsistent with each other. I refer to, Part IV, Article 9 and Part VIII, Article 6, which read as follows:

Part IV, Article 9

Prior to closing the Nomination Meeting, an Appeal Board shall be established for the upcoming election only. Members of the Appeal Board shall consist of five (5) Band Members. These members shall be eligible voters, but not candidates for any of the positions within the Band Council. They are to investigate all appeals and report their finding to the Electoral Officer. The Electoral Officer shall Report back to the Band Members at a Band meeting within thirty (30) days.

Part VIII, Article 6

The Appeal Committee is set up on the date of the election.

Whilst Article 9 refers to an appeal board and Article 6 refers to an appeal committee, I am prepared to assume that both articles intended to refer to the same entity.

In my view, the Appeal Board was not established prior to the closing of the nomination meeting of March 14, 1994. However, I do think it was established prior to the date of the election. Therefore, it was contrary to Part IV, Article 9, but not to Part VIII, Article 6.

iii.        The electors list was not ratified at a general band meeting, contrary to Part V, article 4 of the Regulations.

This section of the Regulations, reads as follows:

The Electors’ List shall be reviewed and approved by the voters present at the Nomination Meeting, [sic] The approved Electors’ List shall then be considered completed and declared final.

The Electoral Officer, Joan Bent, testified as to her actions at the nomination meeting and she confirmed that they were accurately recorded in the minutes of this meeting, found at Tab 20 of Exhibit P-1. Electoral Officer Bent read through the eligible voters’ list whereupon the Band members present unanimously decided to delete four names of deceased members from the list. This resulted in a complete and final electors’ list of 226 eligible voters. Based on this evidence, which I find credible, I conclude that the provisions of Part V, article 4 of the Regulations were complied with.

iv.        Voting at the polls was conducted contrary to Part VI, article 1 of the Regulations.

Article 1 of Part VI of the Regulations reads as follows:

On a person presenting himself for the purpose of voting the Electoral Officer shall if satisfied that the name of such person is entered on the voters list at the polling place, provide hime [sic] with a ballot paper on which to register his vote and the Electoral Officer shall initial the ballot.

The Electoral Officer, Joan Bent, testified that when a voter came into the polling station, she would first ensure that the voter’s name was on the voters’ list. Next, she would mark her initials on the list after the voter’s name. She would then mark her initial on the back of a ballot, fold it in three and hand it to the voter. Joan testified that she initialled every ballot cast with the exception of three ballots. These three ballots were initialled by the Returning Officer, Theresa Ann Terbasket, while Joan was momentarily away from the electoral table in the washroom. There was no evidence led to contradict Joan Bent’s testimony in this regard.

In my view, it was not a violation of Part VI, Article 1, of the Regulations for the Electoral Officer to delegate the duty set out therein to the Returning Officer during those periods when it was absolutely necessary for the Electoral Officer to leave the electoral table. Furthermore, such delegation is contemplated by the Regulations, wherein at Part I, Article 7, a spoiled ballot is defined as a ballot which does not have the initials of the Electoral or Returning Officer on it. I therefore conclude that the evidence establishes that the voting was conducted in accordance with Part VI, Article 1 of the Regulations.

v.         Scrutineers during the voting acted contrary to Part I, Article 6 of the Regulations.

This provision is in the definition section of the Regulations, and defines scrutineer as follows, at Article 6 of Part I:

SCRUTINEER means a person nominated by a candidate in writing to observe on his behalf, the election and the counting of the ballots.

The previous version of the Custom Election Regulations included an additional sentence in the above definition which said that the scrutineer shall in no way attempt to influence voters. The defendants allege that Lillian Allison, a scrutineer, was behaving in a manner that would influence voters. The behaviour complained of included Lillian’s hugging of the voters as they entered the polling station and the making of certain comments to the voters.

Lillian Allison testified that she did indeed hug every voter as they entered the polling station. According to Lillian, this is her normal manner of greeting people, which was consistent with the evidence of other witnesses. Lillian also testified that on several occasions she said to voters, “we’ve come to make a change.” She explained that there was no doubt that this election would result in a change because Barnett Allison had stepped down as Chief, a position he had held for thirty years, and one of the previous councillors, Mona Heinrich, had resigned. Therefore, the only person who was an incumbent in this election was Robert Edward.

Accordingly, it does seem that Lillian Allison was merely stating the obvious when she made comments to the effect that there was going to be a change. Although it is probably not appropriate for a scrutineer to make any comments to the voters concerning the outcome of the election, in my view Lillian’s comments were not an attempt to influence the voters. I found her to be a very credible witness and I accept her explanation for her actions as summarized supra.

The evidence of Theresa Ann Terbasket was that she observed Lillian Allison urging someone to vote by saying, in the native language, “write it here.” In cross-examination, Theresa testified that the voter involved in this incident was an elder, whose name she could not recall.

Lillian Allison testified that she did recall an elder, Isobel Edward, requiring the assistance of the scrutineers because she could not read English. Lillian was not certain whether Ms. Edward was assisted by herself and Doreen Louie or Gloria Bent and Doreen Louie. Joan Bent testified that Ms. Edward was assisted by herself and Doreen Louie. Thus, it is not clear who assisted Ms. Edward, which is not surprising since these events occurred over two years ago. However, Joan Bent testified that, since Ms. Edward did not read English, the names of the candidates had to be read out loud to her, she then said who her choice was, and was shown where to mark the “X”.

Lillian Allison also testified that she and Doreen Louie assisted another elder, Julia Qualtier, who had recently had a stroke. She said that they walked her over to the voting booth and then Lillian went through the names on the ballot and told Ms. Qualtier to only vote for one candidate for each position. She further testified that she and Doreen Louie stepped away from Ms. Qualtier while she marked the ballot and that they could not see who she was voting for.

I am satisfied that the incident described by Theresa Ann Terbasket supra, related to the assistance given to either Ms. Edward or Ms. Qualtier. With respect to these incidents, I cannot find fault with the actions of Lillian Allison. To the contrary, I consider her actions to be a sensitive response to the needs of older voters. Accordingly, I conclude that there is no evidence that any of the scrutineers acted in violation of the Regulations while the voting was taking place.

vi.        The Electoral Officer provided insufficient and improper ballots contrary to Part V, Article 6 of the Regulations.

Article 6 of Part V of the Regulations reads as follows:

There shall be separate ballot papers containing the names of the candidates for the position of Chief and ballot papers containing the names of the candidates for Councillors, which shall be listed on the ballot papers in alphabetical order.

The evidence was undisputed that the ballot for this election was a single piece of paper that was divided into three sections by shaded areas. The first section listed the candidates for the office of Chief, the second section listed the candidates for the office of Councillor (four-year term), and the third section listed the candidates for the office of Councillor (two-year term). Beside each candidate’s name was a square box, approximately ½-inch long on each side, wherein the voter was to place an X. There was also evidence that in past elections, there was a separate ballot paper for the office of Chief and another ballot paper for the offices of Councillor.

I accept the defendants’ submission that Article 6 of Part V of the Regulations does require that there be a separate piece of paper that is the ballot for the office of Chief and another piece of paper that is the ballot for the offices of the councillors.

The Regulations are not clear, in my view, whether or not there must be a separate ballot paper for each councillor position. However, I do not have to decide that issue. The fact that a single sheet of paper was used as the ballot for both the office of the Chief and that of the councillors is sufficient to establish that it did not comply with the Regulations. Accordingly, I agree that there was a violation of Part V, Article 6 of the Regulations.

vii.       The ballot box was improperly sealed, contrary to Part V, Article 8 of the Regulations.

Article 8 of Part V of the Regulations reads as follows:

The Ballot Box shall be sealed with a lock and taped with the initials of the Electoral officer on the tape.

The Electoral Officer, Joan Bent, testified that prior to the commencement of voting she taped all the closures on the box with masking tape. She said that several people, including herself, initialled the tape. Joan testified that once the box was sealed in this manner, the only way for the ballots to get into the box was by the top crack. She further testified that the box had a clasp on it for a lock and that she locked the box and kept the key on her key ring. Lillian Allison also testified that the ballot box was sealed with masking tape and that the box had a lock on it. There was no evidence led to contradict the testimony of Joan Bent and Lillian Allison in this regard. Accordingly, I am satisfied that Article 8 of Part V of the Regulations was complied with.

viii.      The Electoral Officer failed to provide a secure compartment at the polling place where electors could mark their ballots free from observation, contrary to Part V, Article 9 of the Regulations.

Article 9 of Part V of the Regulations reads as follows:

The Electoral Officer shall provide a compartment at the polling place where the electors can mark their ballot papers free from observation.

Joan Bent, the Electoral Officer, testified that she borrowed portable voting booths from the village of Keremeos. They had two sides and a front and were set on a table. A partition was then placed in front of them. She testified that the voter could fill out his or her ballot in this voting booth in private. Lillian Allison, a scrutineer, also described the voting booths in a similar manner in her testimony. There was no evidence led to contradict the testimony of Joan Bent and Lillian Allison in this regard.

I am satisfied that the voting booths described by Joan Bent and Lillian Allison provided the voters with a compartment where they could mark their ballots free from observation. Accordingly, there was no violation of Article 9 of Part V of the Regulations.

ix.        The Electoral Officer and one scrutineer assisted some electors in a manner inconsistent with Part VI, Article 6 of the Regulations.

Article 6 of Part VI of the Regulations sets out the manner by which the Electoral Officer may assist a voter in certain circumstances. This provision reads as follows:

The Electoral Officer, on the application of any voter who is unable to read or is incapacitated by blindness or other physical cause from voting, shall assist such voter by marking his/her ballot paper in the manner directed by such voter in the presence of the Scrutineer(s) of the candidates in the polling place and of no other persons and shall give the initialed ballot paper to the Returning Officer to put it in the ballot box.

The Electoral Officer, Joan Bent, testified with respect to two incidents involving assistance given to elders that came to vote, which were discussed above. One of the elders, Julia Qualtier referred to earlier herein, required the assistance of the scrutineers to walk to the voting booth because she had recently suffered a stroke and was using a walker. Joan said that the two scrutineers who helped Ms. Qualtier walk to the booth were not present in the polling booth when Ms. Qualtier filled out her ballot. I am of the view that the assistance given to Ms. Qualtier by the scrutineers does not fall within Article 6 of Part VI of the Regulations because the voter was able to mark her own ballot. Accordingly, the procedure set out in Part VI, Article 6 did not apply. I find that there was no wrongful conduct on the part of the scrutineers or the Electoral Officer in providing this assistance, and that it did not contravene any of the Regulations.

Joan Bent also testified as to an incident wherein Isobel Edward, also referred to earlier herein, was given assistance. Ms. Edward does not read the English language. As discussed supra, the evidence of Joan Bent and Lillian Allison is consistent that Doreen Louie assisted Ms. Edward. However it is unclear whether Doreen was aided by either Lillian Allison, Joan Bent or Gloria Bent. I am not surprised that memories have faded over the past two years. Since Joan Bent appeared to have a better recollection of this incident, I accept her evidence that it was herself and Doreen Louie who assisted Ms. Edward.

Joan Bent testified that because Ms. Edward could not read English, she read the names of the candidates out aloud to her. Ms. Edward then told Joan who she wanted to vote for and Joan then indicated for Ms. Edward the boxes in which she should put her X’s.

This is clearly a circumstance contemplated by Article 6 of Part VI of the Regulations, and as such, the requirements of that provision were applicable. Part VI, Article 6, required that the Electoral Officer assist the voter by marking her ballot in the manner directed by the voter. In this case, the Electoral Officer has testified that although she showed Ms. Edward where to put the X, it was Ms. Edward herself and not the Electoral Officer who marked the ballot. In my view, the fact that the voter marked the ballot herself amounts to nothing more than a technical breach of the provision and does not impeach, in any way, the validity of the vote cast.

Article 6 of Part VI further requires that the initialed ballot paper then be given to the Returning Officer, rather than the Electoral Officer, to be put into the ballot box. There is no evidence that Ms. Edward’s ballot was put into the ballot box by the Returning Officer, Theresa Ann Terbasket. The testimony of Joan Bent indicates that Ms. Edward’s ballot was in fact put into the ballot box by Joan Bent herself.

Accordingly, although it appears Joan Bent did her best to assist Ms. Edward in filling out her ballot, I find that the requirements of Part VI, Article 6 were not exactly complied with. Accordingly, I agree that there was a technical violation of Part VI, Article 6 of the Regulations.

x.         The Electoral Officer failed to mark the “assisted” ballots in accordance with Part VI, Article 7 of the Regulations.

With respect to the “assisted” ballots described in Article 6 of Part VI, discussed above, Article 7 imposes the following additional requirement:

The Electoral Officer shall state on the voters list opposite the name of such voter in the column for remarks the fact that the ballot paper was marked by him at the request of the voter and the reasons therefore [sic].

Joan Bent, the Electoral Officer, testified that she kept a voters’ list journal. She further testified that in this journal she recorded what occurred with respect to the assistance given to both Ms. Qualtier and Ms. Edward. Thus, although there is no evidence that the Electoral Officer stated on the voters’ list itself, in a column for remarks, the details of the ballot marking, there is evidence that the Electoral Officer was conscientious in recording this information in a separate journal. Accordingly, I am satisfied that Article 7 of Part VI was substantially complied with.

xi.        The Electoral Officer failed to count the ballots in accordance with Part VI, Article 10 of the Regulations.

Article 10 of Part VI of the Regulations reads as follows:

Immediately after the close of the poll the Electoral Officer shall in the presence of such of the candidates or their Scrutineers as may be present open the ballot box and:

(a) examine the ballot papers and reject all ballot papers

(i) Which have not been initialled by him; or

(ii) on which votes have been given for more candidates than are to be elected; or

(iii) upon which anything appears by which the voter can be identified, but no word, letter or marks written or made by the Electoral Officer on a ballot paper shall void it or warrant its rejection.

(b) take notes of any objection made by any candidate or his agent to any ballot paper found in the ballot box and decide any question arising out of the objection and number such objection and place a corresponding number on the back of the ballot paper with the word “ALLOWED” or “DISALLOWED”, as the case may be, with his initials;

Several witnesses testified at the trial as to the procedure followed with respect to the ballot counting. I concluded, supra, that, although others may have been present as well, the following persons were certainly present throughout the ballot counting: Joan Bent, Electoral Officer; Theresa Ann Terbasket, Returning Officer; and Lillian Allison, Gloria Bent, Doreen Louie and Brenda Terbasket, the scrutineers. Brenda Terbasket arrived shortly after the counting had commenced.

Joan Bent testified that she verified that her initials were on each ballot inside the ballot box. In doing so, she satisfied herself that, with the exception of three ballots, her initials were on all of the ballots. In respect of those three ballots, Joan said they had been initialled by the Returning Officer, Theresa Ann Terbasket, while Joan was away from the electoral table in the washroom. Joan further testified that Theresa Ann Terbasket confirmed that those were her initials. As noted supra, I am satisfied that this procedure was not in breach of the Regulations.

Joan Bent further testified that she checked each ballot to see whether it was properly marked with an X. If so, she would read out the names of the candidate for whom the vote was cast. Each scrutineer had their own tally sheet on which to record this information. Joan testified that she did not pass the ballots around to the scrutineers or anyone else who was present. The evidence of Lillian Allison, Brenda Terbasket, Doreen Louie and Lauren Terbasket is consistent with Joan’s testimony in this regard. The evidence is also clear that all of the scrutineers ended up with the same final count of votes for each office.

With respect to spoiled ballots, Joan testified that if a ballot was not properly marked with an X, she would state that it was a spoiled ballot and hold it out in front of her so that all of the scrutineers could view the ballot, but maintaining possession of the ballot at all times. She said that once the scrutineers verified that the ballot was improperly marked, it was placed in a pile for spoiled ballots.

Lillian Allison’s evidence was consistent with Joan Bent’s evidence in this regard. Lillian testified that Joan showed the spoiled ballot to all those present, listed above, and that there were no disagreements as to which ballots were spoiled. Theresa Ann Terbasket also testified that Joan showed the spoiled ballots to all the scrutineers and there was a consensus amongst them as to whether it was spoiled. Brenda Terbasket testified to the same effect. Doreen Louie testified, in cross-examination, that Joan would hold up a spoiled ballot in front of her face toward the scrutineers. Lauren Terbasket, who was not a scrutineer nor a candidate, and was only present for the latter half of the counting, testified that while she was present she witnessed Joan declaring two ballots spoiled but she did not recall observing Joan showing the spoiled ballots to the scrutineers.

Thus, with the exception of Lauren Terbasket, all of the witnesses who testified with respect to the ballot counting agreed that Joan Bent showed all of the scrutineers each spoiled ballot. On the totality of the evidence I conclude that the Electoral Officer ensured that each scrutineer observed the spoiled ballots and that she only declared a ballot spoiled after there was a consensus amongst the scrutineers that a ballot was indeed spoiled.

Accordingly I find that the Electoral Officer properly counted the ballots in accordance with the Regulations.

To summarize, I find, on the evidence, that the election was conducted in violation of four provisions of the Regulations:

(a)       the Returning Officer was appointed in a manner contrary to Part III, Article 1;

(b)       the Appeal Board was not established prior to the close of the nomination meeting, contrary to Part IV, Article 9;

(c)        the form of the ballots was improper, contrary to Part V, Article 6; and

(d)       the procedure for assisting an elder was not strictly observed, contrary to Part VI, Article 6.

b.         What is the effect on the validity of the election of these violations of the Regulations?

In my view, a failure to strictly comply with the Regulations does not necessarily render the election results null and void. As stated supra, there is no dispute that the election was to be run according to the Regulations. The Regulations not only set out the method by which to run the election, but set out a mechanism for dealing with breaches thereof. The grounds for appeal to the Appeal Board of the election are set out in the Regulations at Part VIII, Article 1. Although the present application is not an appeal of the election, these grounds provide a useful guide for determining whether a particular violation, according to the purpose of the Regulations, should render the election results null and void or whether it merely results in a technical breach which does not undermine the spirit of the Regulations.

Part VIII, Article 1 of the Regulations reads as follows:

Within thirty (30) days after an election, any candidate at the election or any elector who gave or tendered his vote at the election who has reasonable grounds for believing that:

(a)  There was corrupt practice in connection with the election; or

(b)  there was a violation of these regulations that might have effected (sic) the result of the election; or

(c)  a person nominated to be a candidate in the election was ineligible to be a candidate,

may lodge an appeal by forwarding it in writing, by mail to the Appeal Board at the Lower Similkameen Indian Administration, Box 100, Keremeos, B.C. V0X 1N0.

i.          Was there corrupt practice in connection with the election?

I have heard the testimony of numerous witnesses as to the conduct of the election, including the ultimate destruction of the ballots, which will be discussed later in these reasons. I am satisfied that there is no evidence of any corrupt practice having occurred in connection with this election. Although there were violations of the Regulations, which will be discussed below, I find that the Electoral Officer, Returning Officer and the Scrutineers acted in the utmost of good faith in conducting this election.

ii.         Was there a violation of the Regulations that might have affected the results of the election?

I have already found that the election was conducted in violation of four of the Regulations. However, the violation of a regulation is only a ground for an appeal if such a violation might have affected the results of the election. Accordingly, I shall examine each violation and determine whether it meets this criterion.

A.        Violation of Part III, article 1: Appointment of the Returning Officer.

I am satisfied that the manner in which the Returning Officer was appointed, although in contravention of the Regulations, could not have had an effect on the results of the election. Furthermore, there is no evidence establishing any misconduct on the part of the Returning Officer.

B.        Violation of Part IV, article 9: Appeal Board not established prior to the close of the nomination meeting.

I found above that there was a contradiction in the Regulations as to when the Appeal Board had to be established. Although I am satisfied that the Appeal Board was established prior to the date of the election, and thus in compliance with Part VIII, Article 6, I am not satisfied that the Appeal Board had been established prior to the close of the nomination meeting, thus contravening Part IV, Article 9.

Since the Appeal Board is without jurisdiction to act until the election is completed, and as the Appeal Board was established prior to the election date, I find that the violation of Part IV, Article 9, could have had no effect on the results of the election.

C.        Violation of Part V, Article 6: Improper form of the ballots.

To determine whether the improper form of the ballot used in the election could have affected the results, the criteria that were used for deeming a ballot spoiled is significant. A spoiled ballot is defined in the Regulations at Part I, Article 7 as follows:

SPOILED BALLOT means:

(i)   a ballot which has been marked with more votes than allowed; or

(ii)  a ballot which does not have the initials of the Electoral or Returning Officer; or

(iii) a ballot with any mark(s) which is not an “X”; or

(iv) a ballot which has not been marked clearly to identify the person voted for; or

(v)  a ballot that has been marked “DISALLOWED" by the Electoral Office [sic] and signed by the voter.

The form of the ballot was improper because the candidates for all three offices were listed on a single ballot paper. This violation of the Regulations could only have affected the results of the election if a ballot had been rejected as spoiled in its entirety even though it was only improperly marked with respect to one office. For example, if there was an X beside a candidate’s name for Chief, but check-marks beside the candidates’ names for the other two offices, then, if this ballot were deemed spoiled in its entirety, the results of the election for the office of Chief would have been affected by the improper ballot.

The Electoral Officer, Returning Officer and three of the scrutineers testified at the trial. The fourth scrutineer, Gloria Bent, did not testify, however portions of her examination for discovery testimony were read in at trial. Since it was these people who decided whether a ballot was spoiled, it is necessary to consider their evidence in this regard.

Joan Bent testified that, with respect to the nine ballots that were declared spoiled, in every case, the mistake that the voter had made that deemed the ballot spoiled had been made consistently when voting for all three offices. Joan maintained in cross-examination that there were no instances of partially spoiled ballots in the sense of there being a proper X for one office but an improper marking for another office all on the same ballot paper. Joan’s testimony in this regard was consistent with the testimony of Lillian Allison. Lillian testified that there were no instances of different markings for the different offices on one ballot paper: she said that when a ballot was spoiled, the voter used the same mistaken mark throughout the ballot. No evidence was adduced to contradict the testimony of Lillian Allison and Joan Bent in this regard.

Thus, although this violation of the Regulations had the potential for affecting the results of the election, the evidence establishes that in this case there were no partially spoiled ballots and thus there were no instances of a properly cast vote not having been counted. Accordingly, this was not a violation that might have affected the results of the election.

D.        Violation of Part VI, Article 6: Procedure for assisting an elder not strictly observed.

The fact that Ms. Edward marked the ballot herself and that the Electoral Officer deposited it into the ballot box, rather than the Returning Officer, is not a violation that might have affected the results of the election. I am satisfied that Ms. Edward was assisted in a manner whereby she was able to cast her vote for the candidates of her choosing, and thus these technical violations of the Regulations did not affect the election results.

I therefore conclude that none of the violations established to have occurred with respect to this election were violations that might have affected the results of the election and thus do not constitute grounds for appeal.

iii.        Was a person nominated to be a candidate that was ineligible?

There is no evidence that would support this ground of appeal.

iv.        Conclusion on the effect of the violations

I conclude that the evidence has not established that any of the grounds of appeal provided for in the Regulations exist with respect to this election. Accordingly, since the election could not have been successfully appealed, I see no reason to declare the results of the election null and void. However, before disposing of this issue, I shall discuss the circumstances surrounding the burning of the ballots, since this occurrence was the source of much contention at trial.

c.         What is the effect of the burning of the ballots by the Electoral Officer?

The evidence is undisputed that on June 1, 1994, the Electoral Officer went to the LSIB office, retrieved the ballot box, and proceeded to burn the contents of the box in an incinerator located behind the home of Barbara Allison. The ballot box had contained all of the used ballots, the unused ballots and the journal kept by the Electoral Officer. The Regulations state at Part VII, Article 1 the following with respect to destruction of the ballots:

The Electoral Officer shall lock all ballot papers in a secure place until 30 days after the election, at which time if there are no appeals of the election then the ballots may be destroyed.

The Regulations clearly permit the Electoral Officer to destroy the ballots, which could be achieved by burning, if 30 days have lapsed since the election and there are no appeals. The date the ballots were destroyed, June 1, 1994, was considerably later than 30 days after the election of March 29, 1994.

The next condition that must be met is that, as of the date of destruction, no appeals had been filed. The issue of whether an appeal had been filed was a source of controversy at trial. The sections of the Regulations that pertain to appeals and are relevant to this issue are Part VIII, Articles 1 and 2, which read as follows:

1.   Within thirty (30) days after an election, any candidate at the election or any elector who gave or tendered his vote at the election who has reasonable grounds for believing that:

(a)  There was corrupt practice in connection with the election; or

(b)  there was a violation of these regulations that might have effected the result of the election; or

(c)  a person nominated to be a candidate in the election was ineligible to be a candidate,

may lodge an appeal by forwarding it in writing, by mail to the Appeal Board at the Lower Similkameen Indian Administration, Box 100, Keremeos, B.C. V0X 1N0.

2.   Where an appeal is received by the Band, a copy of the Appeal together with all supporting documents shall be delivered to the Electoral Officer and to each of the candidates in the election.

There was no evidence that an appeal had been forwarded in writing, by mail, to the Appeal Board at the LSIB administration, as is required by Part VIII, Article 1. There was evidence that a document was brought in person to the Band Office by Gloria Bent on April 27, 1994, which was date-stamped and then filed in a drawer, where it was kept under lock and key by Katherine Terbasket, a secretary at the Band Office.[16] This was the only document produced at trial that, in the defendants’ view, constituted an appeal. Accordingly, if this document does not constitute an appeal then no appeal can be said to have been filed pursuant to the Regulations.

After having examined this document and considering the evidence pertaining thereto, I conclude that this document was not an appeal of the election pursuant to the Regulations. Firstly, it was not mailed to the LSIB Administration. Secondly, it was not addressed to the Appeal Board. Thirdly, it was never forwarded to the Appeal Board, Electoral Officer or candidates. Finally, and most importantly, the substance of the document does not constitute an appeal, in my view. The first two pages of the three-page document are the minutes of a meeting held on April 23, 1994, at the home of Gloria Bent. The meeting was attended by a group of LSIB members who describe themselves as the Action Committee. Although the minutes of this meeting do reveal the Action Committee’s complaints concerning the election, the document does not purport to appeal the election results but rather declares the results null and void and demands a re-election. It does not seek a review of the conduct of the election by an Appeal Board. The third page of the document is signed by 37 LSIB members in support of a declaration that the election is null and void and that there be a re-election. In my view, the third page of the document is in the nature of a petition, not an appeal.

For these reasons, I conclude that this document was not an appeal of the election within the contemplation of Part VIII, Article 1 of the Regulations. Therefore, since there was no appeal of the election, the Electoral Officer was acting within her rights, as set out in Part VII, Article 1 of the Regulations, when she burned the ballots on June 1, 1994. The destruction of the ballots has no effect on the validity of the election.

2.         If not, should the Court declare the LSIB election of March 29, 1994 null and void?

As a result of the findings of fact set out above, I am of the view that the counterclaim should be dismissed and no such declaration should be given.

3.         If so, should the Court grant an order in the nature of mandamus ordering a new election to be held in accordance with the Custom Election Regulations?

In light of my finding that the election of March 29, 1994 was valid, it is not necessary to decide this issue.

V.        CONCLUSIONS ON THE MERITS OF THE CASE

For all of the aforesaid reasons, if this Court had jurisdiction, I would have declared that Barbara Allison is the Chief and Pauline Terbasket is the Councillor of the LSIB, having been duly elected on March 29, 1994, for the current term of office to which they were respectively elected, unless either of them sooner resigns her office.

The statement of claim also sought an award of general damages. Since no evidence was led that established any damages suffered by the plaintiffs, I would not have awarded damages.

VI.       CONCLUSION

For the foregoing reasons, the plaintiffs’ action is dismissed and the counterclaim is also dismissed on the grounds that this Court has no jurisdiction to address the matters raised therein. Had this Court been clothed with jurisdiction, I would have dismissed the counterclaim on its merits and issued the declaration sought by the plaintiffs in the statement of claim.

Reluctantly, I have concluded that the costs must follow the event. The costs of the main action are payable to the defendants by the plaintiffs. The costs of the counterclaim are payable to the plaintiffs by the defendants.

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