Derrickson v. Canada ( Assistant Deputy Minister, Indian and Eskimo Affairs, Department of Indian Affairs and Northern Development )
T-569-93
Reed J.
21/5/93
11 pp.
Judicial review -- Motion to have s. 18.1 application to set aside decision Westbank Indian Band election valid, declaration election invalid, dealt with according to procedures used in trial -- Applicants contesting validity of election of chief, councillors on ground some voters not ordinarily resident on reserve -- Investigation conducted pursuant to Indian Band Election Regulations, s. 13 -- Investigator notifying by letter candidates, electors whose residency qualifications challenged, if wished to be interviewed in person to arrange appointment through band office -- Letter also giving phone number at which investigator could be reached directly -- Investigator speaking to 21 individuals, some by telephone, some in person -- Challenged decision based on report -- As report not in evidence impossible to know what evidence relied upon in concluding individuals ordinarily resident on reserve and what test of ordinary residence applied -- Applicants challenging validity of procedure as arranging of interviews through band office intimidating to individuals who might otherwise have come forward to give information concerning residence of individuals -- Arguing failure to initiate discussions with persons known to have relevant information leading to biased result -- Keeping evidence secret denying them opportunity to know, test or rebut evidence being provided -- Arguing only way to provide fair hearing and obtain reliable information to establish procedure whereby material witnesses can be subpoenaed to attend, give evidence, be subject to cross-examination -- Application dismissed -- Applicants not seeking to cross-examine investigator, decision-maker, band members already giving evidence, but individuals not giving evidence previously -- Role of Court on judicial review to review decision-maker's decision, not to supplant decision-making process -- Challenged decision not one with respect to which extensive discretion in hands of decision-maker -- Decision that of applying well-defined legal standard to relevant facts -- Examination of validity of election type of decision made by court in many circumstances -- Important to distinguish between declaration government official's decision invalid and decision election invalid -- Declaration election invalid depending on review of material before decision-maker, not arising as independent determination by court of validity of election -- Motion seeking to use s. 18.4(2) procedure for broader purpose of conducting independent investigation into validity of election, not to make validity of impugned decision sole focus of trial pursuant to s. 18.4(2) -- Application for review of government official's decision, but no evidence before Court as to alleged facts on which decision based or of legal test used by investigator and decision-maker -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as am. by S.C. 1990, c. 8, s. 5), 18.4 (as am. idem) -- Indian Band Election Regulations, C.R.C., c. 952, ss. 12, 13, 14 -- Indian Act, R.S.C., 1985, c. I-5, s. 76.