In the Court of Appeal of Alberta
Citation: Boucher v. Métis Nation of Alberta Association, 2009 ABCA 5
Date: 20090107
Docket: 0803-0133-AC
Registry: Edmonton
Between: Rick Boucher Appellant (Applicant)
- and –
Métis Nation of Alberta Association, Audrey Poitras,
Métis Judiciary Council, Dale Friedel, Toby Racette, Ken Shaw,
Bertha Clarke-Jones and Bonnie Bell
Respondents (Respondents)
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The Court:
The Honourable Mr. Justice Jean Côté
The Honourable Madam Justice Constance Hunt
The Honourable Madam Justice Marina Paperny
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Reasons for Judgment Reserved of The Honourable Mr. Justice Côté
Concurred in by The Honourable Madam Justice Hunt
and Concurred in by The Honourable Madam Justice Paperny
Appeal from the Decision by The Honourable Mr. Justice M.A. Binder
Dated the 1st day of May, 2008, (2008 ABQB 262, Docket: 0703-15317)
_______________________________________________________
Reasons for Judgment Reserved of The Honourable Mr. Justice Côté
_______________________________________________________
A. Introduction
[1] This is an appeal from a decision of the Court of Queen’s Bench refusing to quash a decision of the respondent Métis Judiciary Council. The judge’s reasons, reported as 2008 ABQB 262, 92 Alta. L.R. (4th) 150, set out the facts fully.
B. Facts
[2] Briefly, the respondent Judiciary Council conducted a discipline hearing, found the appellant had acted improperly, and punished him by removing him as a regional Vice-President. They found that he had tried to arrange a contract between the respondent Métis Nation of Alberta Association and a company. That contract was broadly similar to a contract advocated by a rival faction in the Association, which was supported by a resolution of the Association’s Provincial Council. Both proposed contracts were to supervise and allocate certain education and health funding already approved by the federal government for Alberta Métis. But the appellant’s contract was not with the
entity favored by the executive, and approved by the resolution.
C. Standard of Review: Public or Private?
[3] The appellant in effect argues that the Association was playing a complicated political chess game. So it might be possible to have some sympathy for the appellant’s present plight. However, the courts can only give such relief as the law permits. The Alberta courts do not hear judicial review motions or appeals as to whether the respondent Association is following the policies which the courts might adopt. The courts’ role is much narrower.
[4] The precise nature of that role depends upon the nature of the Métis Judiciary Council. The appellant argues that it is a public body, and so is subject to judicial review by the courts in the usual way, and according to the usual standard of review. The appellant argues that there are four tests of its nature, and that here all point to a public function, not a private one. I will summarize the four tests, which the appellant and the chambers judge drew from Knox v. Conservative Party of Can., 2007 ABCA 295, 286 D.L.R. (4th) 129, 85 Alta. L.R. (4th) 34 (paras. 14-15, 20, 23), leave den. [2008] 1 S.C.R. ix.
1. Is it court-like in nature, and administering a function for public benefit on behalf of some level of government? The appellant says this test is satisfied because Métis are a segment of the public, and the Association’s bylaws declare that they have the inherent right of self-determination and selfgovernment, and the Association governs the cultural, economic, educational, political and social affairs of the Métis.
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2. Is the body authorized by legislation to supervise a trade or profession or an element of commerce for general public benefit, or setting standards for general public benefit? The appellant says this is satisfied because private bodies do not exercise such powers, and the Association has the power to bar a Métis from the democratic process.
3. Is the body exercising powers given by statute for the benefit of the public and not accruing to private organizations? The appellant says this is satisfied because the Judiciary Council removed the appellant from elected office as regional Vice-President.
4. Is the question appointment or removal of public officials, not ordinary employees? This seems not to be addressed by the appellant, unless maybe under point 3 above.
[5] I do not find it necessary to endorse that summary of the Knox case, or to express any opinion on it. Nor need I decide whether Knox is the last word on this topic either. Both are because I cannot agree with the appellant’s submissions here. In my respectful view, neither the Association nor the Judiciary Council satisfies the four tests postulated, and the appellant’s arguments on this topic fail on all grounds. I cannot imagine any likely test for a public tribunal which the Association or its Judiciary Council meets.
[6] There is a difference between the public of Canada, or the public of a province, on the one hand, and a fraction of the public, on the other. Any group can be said to be part of the public. But that does not advance the analysis.
[7] The Association is a voluntary society incorporated under the Societies Act. Its powers come largely from consent and implied contract. No one is forced to join the respondent Métis Nation Association of Alberta. Alberta legislation does not require membership in it to join a Métis Settlement or get a land allocation. The Association is not a Métis Settlement, and does not run any of the Métis Settlements. People with aboriginal rights have important rights which other people do not have, but they have them irrespective of membership in this association. The majority of Albertans are not eligible to join this Association even if they seek to do so. In my view, this voluntariness aspect is very important.
[8] There are other important bodies in Canada with voluntary membership. At certain times and places, these have or had large memberships (especially in certain geographical areas), and great political influence. Governments very often give much assistance or large grants of money to such bodies, or to their members via such bodies. One thinks of privately-established universities, churches, charities, women’s groups, cultural organizations, ethnic organizations, fraternal or service clubs, recreation or sports associations or leagues, veterans’ associations, and indeed political parties or their constituency associations. Somewhat similar are labor unions, and various umbrella groups for industries or professions. At times, public-interest or lobbying groups, permanent or ad hoc,
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achieve such importance and membership. At one time, new railways were heavily aided. Therefore, like the chambers judge, I find the receipt of public money a very weak test for whether a body is a “public” tribunal for judicial review purposes. Of course I say nothing about words or concepts like “public” in other contexts, such as human rights laws, the Charter, or various statutes regulating government.
[9] There is also a difference between
(a) voluntarily joining an association and so becoming subject to removal from
it, and
(b) being involuntarily subject to regulation just by being present in Alberta, or
resident in Alberta, or engaged in a regulated profession or industry. One can resign from the respondent Association and still be Métis, and still have or get many of the benefits of being Métis. But one cannot resign from the College of Physicians and Surgeons and still practise medicine, nor turn in one’s driver’s license and still drive, nor opt out of government regulation of one’s industry or trade.
[10] It is true that much of the terminology of the respondent Association’s bylaws is redolent of sovereign government. But just saying that does not make it so. That Association is set up and sustained by agreement among its members, and given corporate personality by the Societies Act. But that Act does not purport to grant governmental, still less sovereign, powers. No other applicable legislation doing so has been suggested to us.
[11] It is interesting that the respondent Association itself argues against being such a public body.
[12] Therefore, I agree with the chambers judge that the usual standard of review and grounds for judicial review of public tribunals do not apply to the Judiciary Council. If quashing by court order is possible, it may be limited to breach of internal rules, lack of procedural fairness, or bad faith: see Lakeside Hutterian Col. v. Hofer [1992] 3 S.C.R. 165, 175e, 142 N.R. 241 (para. 10). I will consider such grounds, given the courts’ limited jurisdiction.
[13] But just in case my characterization of the tribunal is wrong, I will consider all the grounds raised by the appellant.
D. Loss of Jurisdiction
[14] First, the appellant argues that the Council lost jurisdiction, and so any other test or standard of review becomes academic. I will postpone any question of quorum, and deal with that in Part G. below.
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[15] Apart from quorum, I cannot see anything here which would accord with current notions of loss or excess of jurisdiction. In the 1940s and 1950s, courts fairly often found that various errors of law meant loss of jurisdiction, but that is no longer the Canadian approach. Mere error of law is not the same as, and does not necessarily entail, declining or losing jurisdiction. See Jones and de Villars, Principles of Administrative Law 190-92 (4th ed. 2004). Even patent unreasonableness need not involve loss of jurisdiction: Air Canada v. Cdn. Tpt. Agency, 2008 FCA 168, 378 N.R. 217, 220-21 (paras. 5-7) (one J.A.).
[16] Indeed, modern standards of review were created because more and more questions, legal or factual, were alleged to be jurisdictional error. Often circular arguments or puzzles resulted. The standards of review are in part a principled way of cutting into such logical circles. See Jones and de Villars, op. cit. supra, at 452, 462-63. I cannot repeal that law.
[17] The Judiciary Council found that the appellant had breached two bylaws. One (Article 22) was about conflicts of interest. It is now common ground that the appellant was not in fact guilty of a conflict of interest. But he was also found to have broken a second part, Article 9. In my respectful view, the two articles are separate. The appellant argues that Article 9 is merely a punishment section, and ancillary to Article 22. Given its plain wording, I disagree. Article 32.8 fills that role. Therefore, to interpret Article 9 as independent is clearly not unreasonable. And even if I were wrong, that would be an error of interpretation by the Judiciary Council, maybe even a question of law, but it does not remove jurisdiction. The Judiciary Council was entrusted by the bylaws with just such questions. That is a far cry from loss of jurisdiction.
E. Rules of Natural Justice
[18] It is argued that breach of the rules of natural justice would also be a ground to quash a decision of a private consensual tribunal: see Lakeside v. Hofer, supra. I do not have to decide whether that proposition of law is correct or not, because I see no such breach here.
[19] The appellant’s counsel alleges that the specific written charge against him only alleged conflicts of interest by breaches of Article 22, and did not allege a breach of Article 9 as a separate charge. He argues that Article 9 was only recited by the charge as the harm flowing from the breach of Article 22.
[20] I do not agree. Clause 20 of the charge is based on Article 9 of the bylaws, and for its particulars, it relies on all of clauses 1 to 18. To be more precise, in my view clauses 7, 9-15, 17(b) and 18 can stand on their own. They allege sufficient facts to let the Judiciary Council conclude that the charge in Clause 20 is made out. Yet those paragraphs and the facts in them do not involve Article 22 of the bylaws.
[21] So the conviction under Article 9 of the bylaws did not stray outside the written charges, and the appellant had adequate notice. Natural justice was observed, if it is even relevant.
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[22] It may well be that the appropriate test when a private tribunal is involved would be an appropriate degree of fairness or due process. For the reasons given, I see no lack of such fairness here.
[23] Bias seems to have been argued in the Court of Queen’s Bench, but was not raised in the Court of Appeal.
F. Other Grounds of Unreasonableness Alleged
[24] The appellant’s counsel also argues that the decision of the Judiciary Council was
unreasonable for another reason. He says that looking at the sequence of events and decisions by the federal government and the Métis National Council shows that the policy of the respondent Association was already doomed to fail at the time that the appellant promoted and signed a competing contract with someone else. That factual proposition may be correct. But it was reasonable for the Judiciary Council to conclude that the appellant still owed the Association duties of loyalty and adherence to its established policy (set by a previous resolution of the Association’s Provincial Council), and so he owed it duties not to pursue inconsistent policies, still less a course of action which would frustrate the declared policy of the Association.
[25] It is not the job of the courts to decide whether the declared policy of the Association was wise, practical, or had a reasonable chance of success. Still less is it to decide which of two competing ideas or policies had a better chance of success. To say (as does the appellant) that there appeared to be serious roadblocks in the way of the Association’s declared policy, is at best an argument that it was a poor policy. But a duty of loyalty may reasonably be seen as an unfettered duty, not one which ends when defeat becomes a real possibility. I see no reason why the Judicial Council had to adopt a causation or bad-effects test for disloyalty.
[26] The respondent correctly points out that in politics, and in lobbying governments, persistence sometimes pays off. Governments and other bodies have been known to change their minds. Lobbying is not needed when the government is about to do what one wants; it is needed when the government has declined (or is reluctant) to do what one wants. And lobbying often works.
[27] Besides, the federal government had already allocated health funds for Alberta Métis, and already declined to administer those funds directly itself. If any other body could be barred from acting as its intermediary, then logically the Association would be a very serious contender to become the intermediary. The federal government would not likely spend money on Métis education and health in all provinces (or regions) save Alberta: the respondent Association had made this point, and the Métis National Council’s health minister had promised not to exclude Alberta (A.B. v. 6, pp. E377, E450, E463, v. 7, p. E543, and v. 8, p. E717).
[28] So the chambers judge was not bound to say that it was unreasonable or patently
unreasonable for the Judiciary Council to view the appellant’s alternate contract as disloyal.
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[29] Moreover, I cannot say that the decision on disloyalty was founded on an irrelevant consideration or lacked all evidence (as the appellant’s factum argues). But I do not intend to conclude that that would be a ground to upset a private tribunal.
[30] Refusal of an adjournment also seems to have been argued in the Court of Queen’s Bench, but was not raised in the Court of Appeal.
G. Quorum
[31] The full Judiciary Council of six members heard several preliminary motions in this matter. But its Vice-Chair resigned before any evidence was heard, and the remaining five members heard the rest of the matters over objections of the appellant. The appellant says that removed a quorum and therefore removed jurisdiction.
[32] There are no express rules or bylaws governing the number of members needed to hold a Judiciary Council hearing.
[33] The case law about quorum in tribunals is somewhat skimpy, and suffers from failure to distinguish among different topics. The rules may be different where (as here) the tribunal is private, and statutes and their interpretation are not involved.
[34] The first topic is whether all members of a deliberative body (not a court) must be summoned to appear and sit on each case heard by that body. In other words, can it sit in panels of a smaller number of members to hear each case? The short answer is no. Unless the governing instrument expressly allows smaller panels, the whole body must be summoned to attend and hear. Cf. Harris v. Law Socy. of Alberta [1936] S.C.R. 88, [1936] 1 D.L.R. 401. (There is a dictum by one judge that the full body might delegate mere fact investigation and finding to a smaller group: see p. 91 S.C.R.). That is probably the problem addressed in Re Fife and Chatham (City) (1979) 26 O.R. 605 (D.C.), but the reasons are short and vague.)
[35] There is no such defect here; initially all the Judiciary Council were summoned and sat here. So this rule of law should be distinguished. The appellant argues that the Judiciary Council should not be whittled down, because it is selected regionally: there is one member from each of the six regions. But since all its members were summoned and began to sit on this case, there was much less erosion of regional representation than suggested. Nor is this a case where the chair selected who sat.
[36] The second topic to distinguish is whether the deliberative body can sit if not all its members answer the summons to attend and take part. This question is strictly one of quorum. I agree with the respondents and the chambers judge that if the governing document is silent, then full attendance is not necessary, and that a quorum suffices. That quorum is presumed to be a majority. A majority of six people is four. Here the number never dipped below five. Cf. Murray v. Rockyview (M.D.) (1980) 21 A.R. 512, 12 Alta. L.R. (2d) 342 (C.A.); Strathcona (M.D.) v. Maclab Ent. (1970) 75
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W.W.R. 629, 642-43 (Alta.), revd. other grounds [1971] 3 W.W.R. 461 (C.A.), leave den. [1971] S.C.R. xii. If Re Fife, supra, is on point, it is very brief and cites little authority. I would not follow it on this topic.
[37] Therefore, the resignation of one member would not break the necessary quorum. Five members could decide. Any contrary rule of law would be extremely inconvenient. Illness, absence, refusal to attend, or resignation, could not only torpedo an existing proceeding, but bar any new proceedings in any case. The deliberative body would be prevented from acting in the interval. A body as large as six, drawn from across as big an area as Alberta, is unlikely to have complete attendance on every occasion.
[38] The Societies Act s. 9(4)(c) says that the bylaws must set quorums for general and special meetings of the members, but that does not apply to a body such as the Judiciary Council, which is not the Association itself, still less a general or special meeting of its members.
[39] The third topic to distinguish and consider is whether a deliberative body can continue to hear a matter if one member ceases to attend (for any reason) partway through. In my view, loss of one or more members partway through does not force the body to stop its hearing, so long as the quorum is never broken. And again, if the governing documents (or statutes) are silent, the quorum is presumed to be a majority. Murray v. Rockyview, supra (paras. 61-64) might support that proposition, but the scope of that judgment is unclear. If it is not on point, there may not be any directly relevant authority. Much the same policy considerations apply here as applied to the second topic.
[40] That conclusion makes it unnecessary to decide whether the Judiciary Council had entered on the hearing proper before the sixth member resigned.
[41] The fourth topic to distinguish is how the deliberative body can vote. Juries have to be unanimous, and a split body (hung jury) requires a new hearing. No other deliberative body or tribunal follows that rule, save for a few procedural matters. Statutory bodies can proceed by a majority vote: see the Interpretation Act, R.S.A. 2000, c. I-8, s. 17. This is not a statutory body. Maybe a similar rule applies to non-statutory bodies. But as the remaining five were unanimous here, it is unnecessary to decide that question.
[42] Nor is it necessary to consider here a fifth topic: what would be the legal consequence of a decision by less than a quorum, with or without waiver. Would that produce nullity? The question is academic here. That is what Parlee v. College of Psychologists is about. See 2004 NBCA 42, 270 N.B.R. (2d) 375 (C.A.). Though the appellant cites it, it is not on topic here.
[43] There being no quorum problem here, there can be no loss of jurisdiction on that ground.
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H. Conclusion
[44] So there was no breach or wrong reviewable on any applicable standard of review.
[45] I would dismiss the appeal with one set of costs payable to the respondents. However, I would not give the Judiciary Council any costs. The motion for a stay was closely related to the merits, and its costs were left to the panel. The respondents (except the Judiciary Council) should get an additional total of $500 from the appellants as costs of it. No one attacked the costs decision in the Court of Queen’s Bench, and it will stand.
Appeal heard on November 26, 2008
Reasons filed at Edmonton, Alberta, this 7th day of January, 2009
Côté J.A.
I concur: Hunt J.A.
I concur: Paperny J.A.
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Appearances:
S.M. Tarrabain, Q.C.
M.A. Moughel
for the Appellant (Applicant) Rick Boucher
H.J. Sniderman, for the Respondents (Respondents) Métis Nation of Alberta Association and Audrey Poitras
D.N. Jardine, for the Respondent (Respondent) Métis Judiciary Council
