Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613

Court of Queen’s Bench of Alberta Citation: Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 Date: 20171012 Docket: 1603 04576 Registry: Edmonton Between: Dan Buryn, Wayne Croswell and Larry Sisson Applicants - and - Her Majesty the Queen In Right of Alberta as represented by the Minister of Municipal Affairs Respondent Corrected judgment: A corrigendum was issued on November 20, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Oral Reasons for Judgment of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ Introduction

[1] The Applicants, Dan Buryn, Wayne Croswell and Larry Sisson apply for judicial review of a Ministerial Order issued by theMinister of Municipal Affairs dismissing them as Councillors of Thorhild County. The Applicants allege they were denied proceduralfairness and that the Minister’s decision was unreasonable. [2] The Minister’s dealings with Thorhild County Council date back to July 2014, when the Minister received a petition frommembers of the community urging the Minister to undertake an inquiry into the conduct of Thorhild Council and the ChiefAdministrative Officer [CAO].

In its petition, the electorate indicated “concern with the management and governance of the ThorhildCounty”. [3] In September 2014, the Minister completed a preliminary review which identified significant issues of governance within theCouncil. In particular, a split was noted within the five-person Council, with each side being responsible for the breakdown of goodgovernance. The working environment was described as highly dysfunctional.

In particular, controversy existed with the hiring of theCAO, her lack of impartiality, and her contribution to the animosity within Council. [4] The Minister ordered a municipal inspection. The inspection report was completed in June 2015. Seven core areas ofconcern were reviewed, and 46 recommendations were provided. The report confirmed the high level of dysfunction within Council, andnoted the toxic impact it was having in the community. [5] In September 2015, Ministerial Order No. 119/15 was issued containing 14 directives. Council was instructed to provide theMinister with monthly reports on its progress.

It is non-compliance with this Ministerial Order that the Minister relied on in dismissingthe Applicants. [6] In early 2016, the Minister also issued Ministerial Order No. 171/15 for the appointment of Official Administrators whowere authorized to attend Council meetings, review Council minutes and overrule any resolutions passed by Council. [7] Controversy arose over Council’s process in recruiting a new CAO.

In a split vote, a resolution was passed that a contract ofemployment be negotiated with a candidate who did not appear on the short list of candidates prepared by the recruitment firm that hadbeen hired to facilitate the search. The firm expressed the view that this individual was not qualified for the position of CAO andwithdrew its one year placement guarantee. [8] The Official Administrators refused to support this resolution. [9] On March 9, 2016, an “Advice to the Minister” memo was prepared.

The memo attached the Official Administrators’ Reportand recommended the dismissal of the Applicants from Council. [10] The next day, the Minister issued Ministerial Order No. 021/16 dismissing the three Applicants. [11] The Applicants have remained on Council having obtained several interim injunctions staying the Ministerial Orderdismissing them. [12] The Application before me raises three issues: 1. Given the upcoming municipal elections on October 16, 2017, are the issues moot; and if so, should I nonetheless exercisemy discretion to hear and decide the case? 2.

Was there a breach of the Minister’s duty of procedural fairness in her decision to dismiss the Applicants? 3. If so, what is the appropriate remedy? [13] The issue of procedural fairness in relation to the three Ministerial Orders preceding the Minister’s Order to dismiss theApplicants is not the subject of this judicial review. That was the subject of the County’s application for judicial review which was heardby Justice Little on May 19, 2017.

In reasons issued from the bench, Justice Little concluded there was no breach of procedural fairness,although it is not clear from the decision whether the reasonableness of the Ministerial Orders (and the directives contained therein) wasargued. [14] With that background, I turn now to the first issue: I. Are the issues moot? [15] At the Application hearing on October 4, 2017, I raised the issue of mootness.

The municipal election is on October 16, 2017.One Applicant, Councillor Larry Sisson, is not running for re-election while the other two Applicants, Reeve Dan Buryn and CouncillorWayne Croswell, are running for re-election. [16] The Ministerial Order dismissing the Applicants (No. MSL: 021/16) dies with the election.

If Reeve Buryn and CouncillorCroswell are re-elected, the Minister acknowledges that if further Ministerial Orders are issued, they would be based solely on futureconduct of Council. [17] I have concluded that notwithstanding concerns regarding mootness, this is an appropriate case to exercise my discretion inhearing and deciding the Application. [18] The Supreme Court of Canada in Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at para16, 57 DLR (4th) 231 (QL) [Borowski], establishes a two-step analysis a Court should employ in determining an issue of mootness. 1.

Has the tangible and concrete dispute disappeared and have the issues become academic?

2. If yes, should the Court nonetheless exercise its discretion to hear the case? [19] As of the date of the hearing, the issues were still live although that depended entirely on the Court’s ability to generate a decision before October 16th. [20] Despite legitimate concerns with the use of scarce judicial resources, the special circumstances of this case make a decisionappropriate. I say this for three reasons. [21] First, the history of dealings between the Minister, Thorhild County, and the three Applicants is long and protracted.

Thereremains a high level of public interest in this matter, evidenced by the packed courtroom on the date of the hearing. The issues are notrestricted to the parties but have importance to the broader community. [22] Second, Counsel for the Minister advises that a comprehensive review of the Municipal Government Act, RSA 2000, c M-26[MGA] is or will soon be underway.

He advises a decision would assist in the assessment of what can or should change in the processadopted when Ministerial Orders are issued under the MGA. [23] Third, the Minister’s power to dismiss all or part of a municipal council is one rarely utilized in this Province; the lastoccasion being in 2006. As will be outlined later in these reasons, this

section of the Alberta MGA has not been the subject of judicialcommentary and little guidance is found in the jurisprudence generally. Reasons on the process adopted by the Minister and whether itmet the appropriate level of procedural fairness may therefore be of some precedential value. [24] Thus, I have concluded this is an appropriate circumstance for me to exercise my discretion to hear the case. I now turn to thenext issue to be decided: II.

Was there a breach of procedural fairness in the Applicants’ dismissal? [25] In dismissing the Applicants, the Minister relied on section 574(2)of the MGA, which states that if an Order of the Minister isnot carried out to her satisfaction, she may dismiss the council, or any member of it, or the CAO. [26] The Applicants were advised of their dismissal by letter from the Minister, attaching Ministerial Order No. 021/16. In theletter, the Minister states: I want to acknowledge that some councillors have made significant effort to comply with these directives.

On the other hand, I am notsatisfied with the actions of certain councillors who opposed council’s efforts to achieve compliance. [27] The Ministerial Order states: That as Reeve Dan Buryn, Councillor Wayne Croswell and Councillor Larry Sisson have failed to satisfactorily support compliance withMinisterial Order MSL: 119/15, they are dismissed from their positions as members of the council of Thorhild County. [28] The Applicants say they were denied procedural fairness because they were not provided with reasons for their dismissal, norwere they given an opportunity to be heard.

They were neither advised of which directives the Minister felt were not satisfactorilycomplied with, nor advised of why she was of that view. Further, they argue that if the reason for their dismissal centered on Council’sprocess to hire a new CAO, none of this was disclosed at the time of their dismissal and in any event, the one directive relating to therecruitment of a new CAO had been complied with. [29] The Minister concedes she owed a duty of procedural fairness to the Applicants, and argues an adequate level of proceduralfairness was provided to the Applicants.

She points to the process outlined in the MGA: Under section 574(2), the Minister may onlydismiss if her orders have not been carried out to her satisfaction. Before she can order or direct a municipality, she must first haveordered an inquiry, inspection or audit.

From that process, the Minister must consider that the municipality is managed in “an irregular,improper or improvident manner”. [30] This Minister argues it was only after these steps – i.e. her appointment of Official Administrators to oversee Council, and theApplicants’ continued failure to comply with her Ministerial Order – that the Applicants were dismissed. Therefore, she argues, thedismissal of the Applicants did not come without any forewarning. On the totality of the evidence, she acted in accordance with both theletter and spirit of

section 574. The Minister points out there is no requirement under the MGA to provide reasons, but in any event, reasons for dismissal are provided in the Ministerial Order. What is meant by Procedural Fairness and how is that Assessed? [31] Procedural fairness ensures that administrative decisions are made using a fair, impartial, open, and transparent process thatprovides those affected by the decision an opportunity to know the case against them and to fully put forth their views and the evidencethey wish the decision-making body to consider.

The duty of fairness is flexible, variable, and contextual in nature, and accordingly, thelevel of procedural fairness owed will vary depending, in part, on purpose and intent of the applicable legislation and the process fordecision making outlined in the legislation. [32] In assessing whether or not there has been a breach of procedural fairness, no specific standard of review is engaged, albeitsome jurisprudence suggest review on the standard of correctness: Mission Institution v Khela, 2014 SCC 24 at para 79; Grand CentralProperties Inc v Cochrane (Town), 2013 ABCA 69 at para 14; Fisher v Clausen, 2013 ONSC 7609 at para 12.

In essence, the inquiryfocuses on whether the proceedings meet the required level of fairness. [33] The Supreme Court in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR817, 174 DLR (4th) 193 [Baker], outlines five factors to consider in the context of the duty of procedural fairness in the administrative

law context. They include: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. The list is not exhaustive. I will now review each of these five factors in the context of the evidence before me. 1.

The nature of the decision being made and the process followed in making it [ 34 ] Generally, the more the administrative process is like a judicial process, the more likely the procedural protections afforded in a trial model will be required. In this instance, there is no process outlined when a Minister dismisses councillors. Section 574(2) is silent. The

section does not expressly oblige the Minister to provide reasons nor is a right to be heard provided. On its face then, this absence of process suggests a low level of procedural fairness is required. [ 35 ] Murphy v Newhook , 1984 CarswellNfld 23, 50 Nfld & PEIR 307 , from the Newfoundland Supreme Court, Trial Division, is the only case provided that deals with a Minister’s dismissal of municipal councillors. In that case, an inspection ordered by the Minister outlined financial impropriety of Council.

A month later, after several Councillors had resigned, the Minister provided the remaining Councillors 24 hours’ notice to attend a meeting with her. The Councillors were dismissed by letter eight days later. The Councillors were not provided with the inspection report or particulars of the allegations against them.

They were not informed or aware that their immediate dismissal was contemplated. [ 36 ] The Court in Murphy characterized the Minister’s exercise of her power to dismiss as a judicial or quasi-judicial function, imposing an obligation on the Minister to act judicially, notwithstanding the statute was silent on the process to follow.

The Court concluded that this obligation involved, at a minimum, informing the Councillors of the serious charges against them and permitting them a full opportunity to appear and be heard before the Minister reached a final decision. [ 37 ] Although I read Murphy with caution – given it was decided well before the Supreme Court of Canada issued its decision in Baker – it is nonetheless, authority for the proposition that, despite the legislation being silent on the process to be followed in dismissing a councillor, the decision to dismiss is of significant importance and a high level of procedural fairness is warranted. [ 38 ] While the Minister in the present case acknowledges that her decision was somewhat adjudicative in nature, she stresses that the decision was made not only with regard to the Applicants but was driven by the best interests of the County and its residents; and therefore, in light of these considerations, the Applicants were provided with adequate procedural fairness. [ 39 ] In many cases, a broad public interest may serve to reduce the level of procedural fairness owed to the individuals affected, however the circumstances here are unique.

No one disputes the sound policy behind the broad legislative oversight afforded the Minister under the MGA . All municipal institutions, whether they are school boards or county councils are delegates of provincial jurisdiction and from time to time, ministerial intervention is warranted.

However, any ministerial intervention in a municipal council has a profound effect on the autonomy of the council that was duly elected by members of the community to represent them. [ 40 ] Far from serving to lower the duty of procedural fairness, this resulting tension – between the Minister’s authority to oversee municipalities, and a community’s right to be governed by those it elected – underscores the need for the Minister’s decision to be marked by openness and transparency. 2.

The nature of the statutory scheme and the terms of the statute [ 41 ] The provisions of section 574 (1)-(3) are especially pertinent to the analysis of this factor. They read:

(1) If, because of an inspection under

section 571, an inquiry under

section 572 or an audit under

section 282, the Minister considers that a municipality is managed in an irregular, improper or improvident manner, the Minister may by order direct the council, the chief administrative officer or a designated officer of the municipality to take any action that the Minister considers proper in the circumstances.

(2) If an order of the Minister under this

section is not carried out to the satisfaction of the Minister, the Minister may dismiss the council or any member of it or the chief administrative officer.

(3) On the dismissal of the council or of any member of it, the Minister may direct the election of a new council or of a member of council to take the place of any member that has been dismissed. [ 42 ] At the expense of reiteration, s 574(2) is silent in terms of the process that a Minister is to follow in dismissing councillors. The nature and terms of this particular

section of the MGA neither expressly oblige the Minister to provide reasons nor mandate the right to be heard for those that would be potentially affected under that statutory scheme. [ 43 ] Indisputably, the statutory scheme of the MGA is designed to ensure that the Minister is able to provide effective supervisory oversight in municipal governance. Nonetheless, where the Minister has the power to summarily dismiss in a final way, without any statutory right of appeal afforded to those impacted, I am of the view that these factors militate strongly in favour of a high level of duty of procedural fairness.

This is uniquely so in cases involving municipal councils as elected representatives of the relevant communities. 3. The importance of the decision to the individual affected [ 44 ] It is recognized that a higher standard of procedural protection is required when the right to continue in one’s profession or

employment is at stake. While the Applicants are not employees, their livelihoods were nonetheless affected by the Minister’s decision. Equally important is the fact that the Minister’s decision carries drastic implications. When they took office, the Applicants took an oath. The Minister’s decision to dismiss them is, in effect, a pronouncement that the Applicants have failed to honour the oath taken. 4.

The legitimate expectations of the person challenging the decision [ 45 ] A higher duty of procedural fairness will be imposed if the claimant has a legitimate expectation that a certain procedure will be followed or that a certain result will be reached in their case.

This takes into account the promises or regular practices of the decision- makers and the consideration that it is generally unfair to act in contravention of representations as to process. [ 46 ] What if any legitimate expectations would the Applicants have regarding their involvement with the Minister? [ 47 ] By the time of their dismissal, the Minister had been working with Council for over a year. She had ordered an inspection (and provided the report to Council), issued Ministerial directives, and appointed Official Administrators.

It is indisputable the Applicants knew the Minister had concerns with how the Council was functioning.

The Applicants are presumed to be familiar with the MGA , and the Minister’s power to dismiss them. [ 48 ] The Minister argues that, therefore, the Applicants’ dismissal should have come as no surprise decision to them as it was both reasonable and entirely predictable. [ 49 ] Having reviewed the record before me, I must respectfully disagree. [ 50 ] From the record, it is notable that the petition, which served as the impetus for the Minister’s involvement, did not focus on the Applicants, but rather, raised concerns with the management and governance of Council as a whole. [ 51 ] Similarly, the Preliminary Review and Inspection Report raised concerns about the Council generally: its dysfunction, the split within it, and the members’ lack of understanding of governance principles.

On a reading of the inspection report, it cannot be said that the Applicants were identified as the sole cause of the problem. [ 52 ] A series of directives followed. Many of these were very pointed. For example, if Councillor Sisson did not resign, Council was directed to obtain a legal opinion to determine if there is sufficient evidence to support an application to the Court to have him disqualified from Council.

Council complied and obtained a legal opinion that was inconclusive on the merits of such an application. [ 53 ] At its December 1, 2015 Council meeting, after Councillor Sisson had left the meeting, a resolution was proposed that Council direct administration to make application to the Court of Queen’s Bench for disqualification of Councillor Sisson for pecuniary interest.

The resolution was defeated, with the Applicants Reeve Buryn and Councillor Croswell voting against the resolution. [ 54 ] After being provided with a copy of this legal opinion, as she had directed, the Minister sent a letter to Council on December 8, 2015 advising as follows: I appreciate that council and administration have made progress in implementing the directives made under Ministerial Order No. MSL: 119/15. However, I continue to have concerns with the standard of council, and the decisions made at your December 1, 2015 council meeting have done little to diminish these concerns.

Based on my review of the legal opinion and recent decisions made by your council, I am further directing council, under

Section 574 of the Municipal Government Act , to take the actions set out in the attached Ministerial Order No. MSL: 166/15. [ 55 ] That Order directed council to make application to the Court of Queen’s Bench for an Order declaring Councillor Sisson disqualified from council for violating s 172 of the MGA . She further directed council to obtain her consent or direction before commencing any legal proceedings or court applications, and to cease any court applications in progress – specifically any applications to have other councillors disqualified from council.

The Minister also directed that the council minutes record how each councillor voted on any such resolution and to provide those minutes to the Ministry. [ 56 ] Although the Applicants were not mentioned by name, it is clear from her letter and the further Ministerial Order, that the Minister was displeased with Councillor Sisson’s refusal to voluntarily resign, as well as Reeve Buryn’s and Councillor Croswell’s vote against making a court application to have him disqualified.

By then, Council had passed a resolution to bring an application for judicial review of the Ministerial Orders issued. [ 57 ] Ultimately, Council passed a resolution to commence legal action for disqualification of Councillor Sisson. The Minister acknowledged that the County had no control over how or when the court addresses that situation.

Indeed, the status of this legal action at the time of the Applicants’ dismissal is not clear from the record. [ 58 ] On December 14, 2015, in response to delivery to Council of Ministerial Order No. 166/15, Council passed a rambling resolution that council was acting under “duress and protest” and “acting very cautiously as council has been denied ‘Natural Person Powers’ and has not received any legal advice regarding this matter”.

Notably, Councillors Grumetza and Hanasyk, who had been the subject of proposed resolutions to have them removed, were not present for this vote. [ 59 ] The Minister responded swiftly with a letter to Council dated December 16, 2015. She stated in part: I find the December 14, 2015 council resolution as written does not comply with directive provided. Council resolutions are not to be made “under duress.” Comments to this effect clearly undermine council’s commitment to their decision, and obviously call into question the integrity of council’s decision making progress.

The resolution must be clear, concise and not contain any editorial comments or question my authority to make the directive. In the

absence of making such a resolution by December 18, 2015, I will have no choice but to consider that Directive 2 of Ministerial Order No. MSL: 166/15 has not been carried out to my satisfaction. [ 60 ] On December 17, 2015, Council passed the resolution in a form acceptable to the Minister. [ 61 ] In her initial Order No. 119/15, Council was directed to terminate the CAO and to “engage the services of a reputable recruitment firm to assist with the recruitment of a replacement chief administrative officer”. These directives were also complied with.

The CAO was terminated and the firm of Davies Park was retained to assist Council in recruiting a new CAO. [ 62 ] The recruitment process to hire a new CAO was mired in controversy, and was possibly the catalyst behind the Minister’s decision to dismiss the Applicants. [ 63 ] 42 individuals applied. Davies Park screened the applications and prepared a short list of applicants they believed Council should consider inviting for an interview. The short list of five individuals was presented to Council on January 12, 2016.

The Official Administrators appointed by the Minister also attended this meeting. [ 64 ] The Official Administrators (who happened to also be in the recruitment business) objected to two of the names proposed by Davies Park. That left three individuals to be interviewed. Councillor Croswell then inquired why candidate “Mr. S” had not been included on the short list. Davies Park advised they were of the view “Mr. S” did not meet the minimum qualifications identified. A request followed by Reeve Buryn to review all 42 applications. One or more days later, Reeve Buryn instructed Davies Park to include “Mr.

S” on the interview schedule. Four candidates were interviewed in early February. [ 65 ] Following the interview process, Reeve Buryn called a Special Council meeting to review the candidates. Davies Park attended this meeting but the Official Administrators did not. It was proposed that Davies Park negotiate a contract with “Mr. S.” Davies Park reiterated their view that “Mr. S” was not qualified and advised Council it would withdraw its one year placement guarantee if “Mr. S” was hired. The resolution to hire “Mr. S” was passed.

The Applicants voted in favor and Councillors Hanasyk and Grumetza voted against. [ 66 ] At the regular Council meeting on February 23, 2016, a second resolution was made and carried to hire “Mr. S” as the County’s CAO. Councillors Grumetza and Hanasyk opposed the resolution. The Official Administrators advised Council not to sign a contract with “Mr. S” until they had made a ruling on this resolution. On March 4, 2016, the Official Administrators issued their ruling disallowing the resolution to hire “Mr.

S.” [ 67 ] In the “Advice to Minister” memo that followed on March 7, 2016, a recommendation was made to dismiss the three Applicants. The memo concluded that the process to recruit a new CAO undermined the role of Davies Park and disregarded the purpose and intent behind Ministerial Directive 5(

e) contained in Order No. 119/15.The memo noted that the three Applicants has been vocal in resisting the findings of the inspection report and the directives of the Minister, and that Councillor Sisson continued to sit on Council, allowing the three members to carry the majority in most voting situations.

Council continued to be divided by the “three to two” positioning. [ 68 ] While the memo noted that the inspection report identified concerns with the actions of all council members, the recommendation was not for dismissal of the entire council. [ 69 ] As outlined earlier, the Minister’s letter of dismissal to the Applicants is general and does not outline which Ministerial Directives she feels have not been complied with or why. It is apparent from a reading of the record that the three Applicants did not simply “fall in line.” For example, Councillor Sisson did not voluntarily resign.

Ultimately, the Minister directed Council to bring a legal action to have him removed. This directive was based on an inconclusive legal opinion that suggested there may be grounds for his disqualification. No doubt the Minister would have preferred Councillor Sisson to have voluntarily resigned, thus breaking the “3 to 2” voting split that had dominated Council. But given the inconclusive nature of the opinion, I cannot fault Councillor Sisson for exercising his right to have the issue of his disqualification determined by the Court.

It is also clear that Reeve Buryn and Councillor Croswell did not initially support bringing this Court application, but ultimately, they abided by the Minister’s directive to bring the Court application. Similarly, after they were admonished for passing resolutions under protest and duress, a resolution was quickly passed in a form acceptable to the Minister. [ 70 ] Considering the temporal connection between the “Advice to Minister” memo and the Minister’s decision to dismiss the Applicants, it is not unreasonable to believe that the handling of the CAO recruitment was probably the tipping point.

This however, was not outlined to the Applicants. [ 71 ] The Applicants argue that Directive 5(

e) contained in Order No. 119/15 was in fact complied with because they retained a reputable recruitment firm to assist them in hiring the new CAO, which is all the Directive ordered. I am not persuaded by this argument, and I agree the spirit and intent of the Directive was likely not followed. Problems arose with the previous CAO, in part, because of her close personal relationship with several Council members. The Applicants appeared determined to follow this same path and hire an individual because one or more Councillors knew him, and ignore the professional advice from Davies Park that he was not qualified.

Despite this questionable exercise of judgment, the recruitment process was compromised from the start by the Official Administrators over-riding the recommendation of Davies Park and removing two of the five names on the shortlist. This served to undermine the confidence in the recommendations of Davies Park and reduce the pool to only three candidates. [ 72 ] It is Council’s statutory obligation to hire a CAO. That responsibility cannot be delegated to a recruitment agency. Given the unique circumstances present, non-compliance with the spirit and intent of Directive 5(

e) is a matter of legitimate debate. Most persuasive from my perspective, is Council honoring the Official Administrators’ decision to over-rule the resolution to negotiate a contract with “Mr. S.” Ultimately, the County did not negotiate a contract with “Mr. S.” [ 73 ] Returning to the concept of legitimate expectations, in reviewing the record before me, I cannot conclude that the Applicants were or should have been well aware that they were in jeopardy of being dismissed. I say this primarily for two reasons. First, the

petition, the preliminary review and the inspection identified problems with Council as a whole. The animosity and dysfunction wasattributed to both sides of the split yet the Minister dismissed only three of the five Council members. Second, on those instances wherethe Minister rebuked Council or clarified her Directives, compliance followed. Indeed, over the course of her involvement, the Ministerissued no less than six letters, the last being March 1, 2016, just days before the dismissals, commending Council on its progress inimplementing her directives. [74] I turn now to the final Baker factor: 5.

The choices of procedure made by the agency itself [75] This mandates respect for the choices of procedure made by the Minister, particularly when the statute leaves the Ministerwith the ability to choose its own procedure. [76] It is worth repeating that s 574(2) of the MGA does not outline a procedure for dismissal of Councillors. While the Ministerhas significant discretion in the process she implements, the procedure implemented in this instance did not meet the required level offairness. I appreciate there are necessary steps the Minister must undertake before she can ever dismiss a Councillor.

Certainly that doesmitigate against capricious or arbitrary decisions. But in my view, the decision to dismiss Councillors or an entire Council is a decision ofsuch importance to both the individuals affected and to the community at large, that some process addressing the fundamental elementsof procedural fairness is necessary.

What then, does Procedural Fairness Look Like in this Context? [77] Having considered the unique relationship between an elected council, its right of autonomy, as well as the Minister’s right ofoversight under the MGA, and in applying the Baker factors that I have outlined earlier, I conclude that the Minister’s duty of proceduralfairness to the Applicants involves at a minimum, the provision of reasons and the right to be heard. [78] While reasons are not always necessary in every administrative decision, I have no hesitation in concluding that proceduralfairness in this instance demands that reasons be provided.

The Applicants were entitled to know which orders were not carried out to hersatisfaction and why. I appreciate this places an additional burden on the Minister, but that charge is one I conclude is necessary andjustifiable. [79] In this instance, reasons were not provided. The advice to the Applicants included merely a conclusory statement. While theduty of procedural fairness is owed to the Applicants and not to the members of the community, reasons serve to inform the communityof the rationale for the Minister’s exercise of this extraordinary power. The community of Thorhild County remains divided.

Reasonscould possibly facilitate the healing of that divide. [80] It is a legitimate expectation that the Applicants’ deficiencies in compliance be laid out in a clear and transparent manner. Itis impossible to discern from the Minister’s dismissal advice, whether she discussed the “Advice to Minister” memo with her staff orwhat aspects of the memo she relied upon in reaching her decision to dismiss. As the reviewing Court, while I could engage inspeculation and draw inferences, I cannot confidently state why the Minister made her decision.

A decision of this importance should notbe left to speculation or inferences. [81] As stated by the Supreme Court of Canada in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine(Village), 2004 SCC 48 at para 13, [2004] 2 SCR 650 [St Jerome],: Giving reasons... serves the values of fair and transparent decision making, reduces the chance of arbitrary or capricious decisions, andcultivates the confidence of citizens in public officials. [82] I fully endorse this reasoning. [83] Secondly, procedural fairness involves some right to be heard.

In Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at para 23, 24 DLR (4th) 44 [Cardinal], the Supreme Court of Canada concluded that a right to a fair hearingmust always render a decision invalid because it is an independent, unqualified right that any person affected by an administrativedecision is entitled to have. What impact a fair hearing may have had on the decision, is not relevant.

An unfair assessment cannot bejustified by reference to the stellar qualifications, experience or expertise of those conducting the assessment. [84] Here, the Applicants were not given any form of hearing and the Minister’s decision was final with no right of appeal. Whether the Applicants’ reply would have affected the Minister’s decision is not relevant. [85] Whether Alberta amends the MGA to outline a process for dismissal of Councils or Councillors is a matter for legislativedebate, as is the form of the reasons or right to be heard.

It is not appropriate for me to make any recommendations in that regard. [86] Having concluded that there was a breach of procedural fairness, the next issue for determination of the appropriate remedy. III. What is the Appropriate Remedy? [87] The Applicants seek to have the Ministerial Order quashed. The Minister argues that even if the Applicants had been givenmore fulsome reasons for their dismissal and a full opportunity to respond to the allegations and be heard prior to their dismissal, itwould not have likely affected the outcome.

In essence, the Minister argues that despite a breach of procedural fairness, I shouldconsider the record and conclude her decision was reasonable. [88] This argument was rejected by our Court of Appeal in Edmonton Police Association v Edmonton (City), 2007 ABCA 184 at

paras 9-11 , 409 AR 1. Citing the SCC decision in Cardinal , the Court of Appeal held the right to a fair hearing is an independent, unqualified right and the Court should avoid the temptation to speculate on how things may have unfolded if the decision-maker had complied with its duty of procedural fairness. [ 89 ] Accordingly, having concluded there was a breach of procedural fairness, Ministerial Order No. 021/16 is quashed. It is neither necessary nor appropriate for me to determine the reasonableness of the Minister’s decision. IV.

Conclusion [ 90 ] The Minister concedes she owed a duty of procedural fairness to the Applicants. That duty was not met as reasons were not provided and the Applicants were not afforded any right to be heard. Ministerial Order No. 021/16 is therefore quashed. [ 91 ] As a post-script to my decision, my finding of a breach of procedural fairness does not equate with an exoneration of the Applicants. Indisputably, the Council is dysfunctional and ineffective and defined by animosity.

All of the Council members, including the Applicants bear responsibility for that. [ 92 ] The residents of Thorhild County deserve better. They deserve a Council comprised of individuals who understand their statutory duties and oath of office, the principles of good governance and conflict of interest. They deserve individuals who are committed to working in a conciliatory fashion to promote the welfare and interests of the County. [ 93 ] The municipal elections will be held October 16, 2017.

I sincerely hope that the five people elected, whoever they may be, understand this and serve the County of Thorhild well. Heard on the 6 th day of October, 2017. Dated at the City of Edmonton, Alberta this 12 th day of October, 2017. Dawn Pentelechuk J.C.Q.B.A. Appearances: Ryan Henriques of Prowse Chowne LLP for the Applicants Michael S. Solowan of Brownlee LLP for the Respondent _______________________________________________________ Corrigendum of the Oral Reasons for Judgment

of The Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ Paragraph 93 was reflected as paragraph 94.