r v. Newfoundland and Labrador, 2018 NLSC 258

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Power v. Newfoundland and Labrador (Municipal Affairs and Environment) , 2018 NLSC 258 Date : December 18, 2018 Docket : 201701G5476 BETWEEN michael power applicant and: her majesty the queen in right of Newfoundland and Labrador as represented by the Minister of Municipal Affairs and Environment RESPONDENT Before: Justice William H. Goodridge Judicial Review from a decision of Minister of Municipal Affairs and Environment dated the 9th day of August 2017. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 11, 2018

Summary: Application for judicial review is dismissed. Appearances:

Robert W. Buckingham Appearing on behalf of the Applicant Mark P. Sheppard Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9; Khela v. Mission Institution, 2014 SCC 24; Edmonton (City) v.Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47; Baker v. Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 S.C.R. 817; VIA Rail Canada Inc. v. Canadian Transportation Agency, 2007 SCC 15; Coombs v. Placentia(Town) 2018 NLSC 53; Neary v. Portugal Cove-St. Philips (Town) 2013 NLCA 47; Murphy v.

Newhook (1984) 149 A.P.R. 307, 50 Nfld.& P.E.I.R. 307 (Nfld. S.C. (T.D.)); Gosse v. Conception Bay South (Town) (1996), (NL SC), 146 Nfld. & P.E.I.R.192, 37 M.P.L.R. (2d) 146 (Nfld. S.C. (T.D.)); Crane v. Upper Island Cove (Town) (NL SC), 1999, 177 Nfld. &P.E.I.R. 8, 2 M.P.L.R. (3d) 127 (Nfld. S.C. (T.D.)) STATUTES CONSIDERED: Municipal Affairs Act, S.N.L. 1995 c. M-20.1; Municipalities Act, S.N.L. 1999 c. M-24 REASONS FOR JUDGMENT Goodridge, J.: INTRODUCTION [1] On August 19, 2017, the Applicant, Michael Power, was dismissed as a member of council for the Town of Cupids. Thedecision to dismiss Mr.

Power was made by the Honourable Eddie Joyce, Minister of Municipal Affairs and Environment, and approvedby the Lieutenant-Governor in Council, following the investigation of a complaint made by two residents of Cupids. [2] Mr. Power asks that this Court review the Minister’s decision, and declare it a nullity based on denial of procedural fairness,illegality, and unreasonableness.[1] BACKGROUND [3] On January 30, 2017, a complaint was made to the Minister, with a request for an investigation, regarding alleged wrongdoings by the Town of Cupids. Two residents of Cupids made the complaint.

It was a broad ranging complaint against “all TownCouncil members and Council staff who played a

part in the removal of our sewer line on November 10, 2016”.[2] The propertyserviced by the sewer line was 432 Seaforest Drive, Cupids. [4] The Minister, relying on section 4(1) of the Municipal Affairs Act, S.N.L. 1995 c. M-20.1, appointed two inspectors toinvestigate the complaint and provide a report.[3] The inspectors reviewed the Town records, and interviewed two members of theTown council and three members of the Town staff. Mr.

Power was offered the opportunity to meet for an interview with the inspectorsand tell his version of events; he was told that he could bring a lawyer (as per his request); he was told he could bring any documents thathe deemed relevant. Mr. Power did not attend the scheduled meeting and did not provide any explanation for his absence. In his writtenbrief (at paragraph 32), Mr.

Power acknowledges that he was offered the opportunity to meet in person and tell his story to theinspectors, and that he elected to pass on the opportunity. [5] The inspectors’ report was completed and sent to the Minister on April 5, 2017. It included a copy of the January 30, 2017complaint (attached to the inspectors’ report as an annex); it included a detailed chronology of relevant events and documents; itsummarized the various interviews; it identified relevant sections of the Municipalities Act, S.N.L. 1999 c.

M-24 and the MunicipalAffairs Act; it made findings of fault based on known facts; it made recommendations for action. The Analysis

section of the reportstated, inter alia, that: “Councilor Michael Power acted in an improper and improvident manner when he directed the maintenance personnel to use Councilequipment to remove and destroy the sewer line … Councilor Power gave direction to staff, without Council approval or knowledge, toremove and destroy the personal property…” [6] On April 6, 2017, Mr. Power was sent a copy of the inspectors’ report with the attached January 30, 2017 complaint, and wasinvited to provide his comments in response.

Other individuals implicated in the report findings, or who might be impacted, were alsogiven a copy of the report and invited to respond. [7] The letter to Mr. Power enclosing the report noted that some of the allegations pertained to actions taken by him, and that the

Minister was contemplating taking action. The letter invited a response within three weeks. It stated, inter alia : As some of the allegations in the Report pertain to actions taken by you, the Department of MAE is hereby advising you that the Minister will be contemplating taking action(

s) available to him pursuant to subsection 6(1) of the Municipal Affairs Act which states: 6.

(1) Where the Minister is satisfied, upon the report of an inspector appointed under

section 4 or in another manner, that the affairs of a municipal authority are managed in an irregular, improper or improvident manner, the minister may by order in writing (

a) direct the municipal authority or an officer of the municipal authority to take action that the minister considers necessary or advisable in the circumstances; or (

b) subject to the approval of the Lieutenant-Governor in Council, dismiss the municipal authority or a member of the municipal authority. Prior to making a decision as to the appropriateness of exercising his authority under the Act, you are being provided with a notice period to review and provide a response/comments with respect to the Report should you choose to do so.

If you wish to provide a response, it must be submitted before 5:00 p.m. on Friday, April 28th, 2017 to either of the following addresses: • Via Mail or Hand Delivery: Department of Municipal Affairs and Environment 4th Floor, West Block Confederation Building St. John’s, NL A1B 4J6 Attn: Jamie Chippett; or • Via e-mail: jamiechippett@gov.nl.ca After that date (April 28, 2017), the Minister will review and consider the contents of the Report together with any written submission you may wish to file, providing however that this assessment will occur regardless of whether you choose to submit a written response.

Subsequent to that review, the Minister will determine what action, if any, may be appropriate pursuant to subsection 6(1) of the Act. Potential options for the Minister include a decision not to take any formal action, directing the Town Council to take an action, or seeking the approval of the Lieutenant Governor in Council to have you dismissed from your position as a member of the Town Council of Cupids . [ 8 ] On April 26, 2017, Mr. Power provided his response to the Minister.

The seven-page response letter addressed several points, including a challenge to the fairness and legality of a process that could ultimately lead to his dismissal from council. The response also stated, in so many words, that Mr. Power felt his actions in directing staff to remove the sewer line on November 10, 2016, were justified because of an October 4, 2016, resolution of council.

On that date council had resolved to ask the property owners of 432 Seaforest Drive to remove the sewer line. [ 9 ] After the April 28, 2017 response deadline, the Minister considered the report, and the responses received. [ 10 ] On July 25, 2017, The Minister brought the matter before Cabinet with a recommendation for the dismissal of Mr. Power. Cabinet approval was required by virtue of

section 6 of the Municipal Affairs Act : 6.

(1) Where the minister is satisfied, upon the report of an inspector appointed under

section 4 …that the affairs of a municipal authority are managed in an irregular, improper or improvident manner, the minister may by order in writing (

b) subject to the approval of the Lieutenant-Governor in Council, dismiss …a member of the municipal authority. [ 11 ] The recommendation was accepted and Cabinet approved an Order authorizing the Minister to proceed with the dismissal. [ 12 ] On August 9, 2017, Mr. Power was advised in writing (letter addressed to his lawyer) of his dismissal. The letter set out the background reasons for the dismissal, and enclosed a copy of the Order effecting the dismissal.

The letter stated, inter alia : The consequences of Councilor Power’s actions were significant to the [property owners] and creates a risk of litigation should they decide to pursue legal action against the Town. More importantly, the evidence discloses that the authority of the Town Council was undermined in a manner that has implications beyond the [property owners] themselves. If any councilor could act with impunity in disregard of Council wishes to use the resources of a municipal authority to destroy a resident’s personal property, the purpose of municipal governance is itself frustrated.

As a result, I am satisfied that Councilor Power’s actions constitute management of the affairs of the municipal authority in an irregular, improper and improvident manner within the meaning of s. 6(1) of the Act. In light of the seriousness of the actions directed by

Councilor Power, I have sought and received the approval of the Lieutenant-Governor in Council to have him dismissed from the TownCouncil of Cupids. An Order to such effect is hereby enclosed. GROUNDS FOR SEEKING JUDIUCIAL REVIEW [13] In his Originating Application Mr. Power asks that the Minister’s decision be declared void on the following grounds: • denial of procedural fairness; • illegality (Minister lacked authority to dismiss); and • unreasonableness. [14] At the hearing before me, and in his written brief, Mr.

Power focused on the first two grounds. standard of review [15] Each of these three grounds attracts a different standard of review. [16] The standard of review for issues of procedural fairness is correctness; however, specific requirements of procedural fairnessvary with the type of decision maker and the type of decision under review (paragraph 129 of Dunsmuir v.

New Brunswick, 2008 SCC 9).Some deference is owed to the administrative decision maker on the procedure that was followed (paragraphs 79 and 89 of Khela v.Mission Institution, 2014 SCC 24). [17] Lawful authority for this dismissal decision is an issue relating to jurisdiction or vires, and the standard of review is correctness(Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at paragraph 24). [18] Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensiblein respect of the facts and law. If the Minister’s decision meets this description of ‘reasonableness’ (absent error of law) then it is notreviewable (Dunsmuir at paragraph 47). ANALYSIS Denial of Procedural Fairness [19] At paragraph 2 of his brief Mr. Power argues that there was denial of procedural fairness because he was not given adequatenotice of the complaint, or an adequate opportunity to respond: 2.

The issue is the legal concept of natural justice and in particular, the right of a democratically elected official to be given due noticeand an opportunity to be heard before being removed from office, that is, the audi alteram partem rule. [20] Mr. Power argues (at paragraphs 33 to 37 of his brief) that the opportunity to be heard should have included an oral hearingbefore the Minister. [21] In Baker v.

Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 S.C.R. 817 the court found thatthe level of procedural fairness can vary with the circumstances, and that an oral hearing is not a general requirement. At paragraph 33,L'Heureux-Dubé J. stated: [I]t also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. Theflexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations... [22] In VIA Rail Canada Inc. v.

Canadian Transportation Agency, 2007 SCC 15, the court noted at paragraph 231 that“considerable deference is owed to procedural rulings made by a tribunal [Minister in the present case] with the authority to control itsown process.” In this case, the Minister considered Mr. Power’s request for an oral hearing and rejected it.

At page 2 of the August 9,2017 letter the Minister states: I cannot accept your suggestion that some form of oral hearing is required in this instance given the disclosure of information, the ampleopportunity provided to respond, and the comprehensive response that you provided … [23] The objective of procedural fairness is to allow persons whose interests are affected by a decision, to have a meaningfulopportunity to present evidence relevant to their case and have it fully and fairly considered. An oral hearing is sometimes necessary butit is not an absolute requirement.

Written submissions can also provide the same opportunity, especially in situations (as here) where thebackground facts are known and are not disputed. Mr. Power does not dispute that he directed removal of the sewer line and that therewas no resolution authorizing such action. His position is that he was acting in the best interest of the Town[4] and that dismissal fromoffice is not justified in the circumstances. The Minister determined that Mr. Power’s opportunity to be heard would be by writtensubmissions.

In the context of this matter, that was adequate, and the Court defers to the Minister’s choice of procedure. [24] Mr. Power filed five court decisions that involved challenges to Ministerial dismissal of an elected councillor or councilresolutions vacating the seat of an elected councillor. Mr. Power relied upon these authorities to support argument that he was entitled toan oral hearing before the Minister prior to the dismissal decision. As detailed below, I reject that argument and I distinguish theauthorities relied upon by Mr. Power.

[25] In Coombs v. Placentia (Town), 2018 NLSC 53 a member of a municipal council had his seat declared vacant, by resolution ofcouncil, due to a conflict of interest.[5] The dismissed councillor, Francis Coombs, claimed that he was denied procedural fairnesspreceding council’s decision. The procedural steps taken in Coombs were similar to those that preceded the decision to dismiss Mr.Power: an investigator was appointed, the investigator conducted interviews and fact gathering, the investigator prepared a report, thereport was shared with Mr. Coombs and council, and Mr.

Coombs was given the opportunity to respond. There was no hearing in theadversarial sense. The special meeting where Mr. Coombs gave his response was one-way oral submissions where the decision makers(council members) sat in silence and listened. The oral submissions, in that context, were the equivalent of the written submissions madeby Mr. Power. Chaytor, J. recognized that a more formal hearing with “cross-examination of witnesses and … adducing evidence” wasnot necessary where the background facts (like here) were not contentious. [26] There is one distinguishing feature.

Unlike the procedure in Coombs, the inspectors did not interview Mr. Power. This is notrelevant distinction because Mr. Power was invited to participate in an interview with the inspectors, was told he could bring his lawyer(as he requested), and was told he could bring any documents he considered relevant. In his brief, at paragraph 32, Mr. Poweracknowledged that he was given the opportunity to participate in an interview with the inspectors, and that he declined. [27] In Neary v. Portugal Cove-St.

Philips (Town), 2013 NLCA 47, a member of a municipal council had his seat declared vacant,by resolution of council, due to a conflict of interest.[6] The Court of Appeal (reversing a decision of the Trial Division) found that therehad been a denial of procedural fairness and declared the resolution a nullity. That case is distinguished and does not stand for theprinciple that an oral hearing is required. The denial of procedural fairness in Neary was the refusal of council to accede to DouglasNeary’s reasonable request to permit a short adjournment and allow input from a key witness.

In the current matter, there was no requestby Mr. Power for additional time to prepare written submissions. [28] In Murphy v. Newhook (1984) 149 A.P.R. 307, 50 Nfld. & P.E.I.R. 307 (Nfld. S.C. (T.D.)), a member of a municipal councilwas dismissed (with other councillors) by the Minister for managing the affairs of the municipality in an irregular, improper ofimprovident manner. The court found that there had been a denial of procedural fairness because the council member was not given anadequate opportunity to be heard before the Minister’s decision was taken.

In Murphy, the council member was summoned to a meetingwith the Minister on only 24-hour notice and without knowledge of the purpose of the meeting. Seven days after that meeting, withoutinviting or receiving any additional submissions from the council member, the Minister proceeded with an Order dismissing him (andtwo other councillors).

Steele, J. described in paragraph 15 what he found to be almost a complete absence of procedural fairness: [T]he councillors were not told or given any reason for the meeting but merely 24 hours' notice to attend a meeting called by theMinister; that they were never given a copy of [the complaint letter] to the Minister or given a copy of the inspectors' report prior to orduring the meeting; that the plaintiff (and other councillors) were not informed or aware of the particulars of the charges made againstthem; that they were not aware or informed at the meeting that their immediate dismissal was contemplated; and that the first indicationthey had of their dismissal was the letter of dismissal itself received approximately eight days after the meeting. … [29] Despite the denial or procedural fairness, Steele, J. declined to declare the dismissal void because “even if the plaintiff had hadthe opportunity to fully present his case … the result will be the same” (paragraph 48).

Murphy is not a comparable case. The case ishelpful only to the extent that it confirms that Mr. Power was entitled to procedural fairness even where the decision maker is theMinister acting with approval of Cabinet. As I have found, Mr. Power received procedural fairness through disclosure of the inspectors’report with copy of complaint, disclosure of potential consequences, and the reasonable opportunity to be heard in response. [30] In Gosse v. Conception Bay South (Town) (1996), (NL SC), 146 Nfld. & P.E.I.R. 192, 37 M.P.L.R. (2d)146 (Nfld.

S.C. (T.D.)), a member of a municipal council had his seat declared vacant, by resolution of council, due to a conflict ofinterest. The Court found that there had been a denial of procedural fairness, but agreed that there was a conflict of interest and upheldthe resolution. At paragraphs 34 and 35, Halley, J. stated: 34 … Although the hearing of the Resolution before council was judicially flawed, the Appellant was given a fair and impartial hearingbefore this Court. I find the decision of the Town to remove the Appellant from office was ultimately the correct decision. 35 The Resolution of council is upheld.

The Appeal of the Appellant is dismissed. [31] Halley, J. concluded that there was inadequate notice of the complaint, and no opportunity to prepare a defence or be heard. This is not a comparable case; the reasons for which Halley, J. found a denial of procedural fairness are not present here. Mr. Powerwas given adequate notice of the complaint and he was given an opportunity to prepare a defence and be heard. There is a statement byHalley, J., at paragraph 15, suggesting that the right to be heard includes a formal hearing with cross-examination of witnesses.

Thesubsequent jurisprudence from the Supreme Court of Canada, including the Baker and VIA Rail decisions referred to above, changed thelaw in that respect, and found that a formal hearing with a right to cross-examine witnesses is not an absolute requirement. Writtensubmissions can be an adequate means to hear from a party affected by a decision. [32] In Crane v. Upper Island Cove (Town) (NL SC), 1999, 177 Nfld. & P.E.I.R. 8, 2 M.P.L.R. (3d) 127 (Nfld.S.C. (T.D.)), a member of a municipal council had his seat declared vacant, by resolution of council, due to a conflict of interest.

TheCourt found that there had been a denial of procedural fairness, preceding the resolution, but declined to void the resolution. The Cranedecision, involved an utter failure to abide by any rules of procedural fairness. There was no notice of the meeting in which thecouncilor’s fate was being decided and no opportunity to respond to the allegations. It is not a comparable case and of no assistance toMr. Power’s arguments. [33] I find that Mr. Power was given adequate notice of the complaint, and an adequate opportunity to respond, and I find he wasafforded adequate procedural fairness generally.

The copy of the report and complaint were given to Mr. Power on April 6, 2017 and hehad three weeks to respond/comment in writing. He submitted a response on April 26, 2017 and it was considered by the Minister priorto the decision being taken.

Illegality [ 34 ] Mr. Power claims that the sections of the Municipal Affairs Act , relied upon by the Minister (sections 4 and 6) do not provide the Minister with lawful authority to dismiss, in the context of this complaint. In his view,

section 4 relates exclusively to allegations of financial impropriety, and that without a grounding in

section 4 there is no dismissal authority under

section 6. Section 6(1) (

b) of the Municipal Affairs Act provides as follows: 6.

(1) Where the minister is satisfied, upon the report of an inspector appointed under

section 4 or in another manner, that the affairs of a municipal authority are managed in an irregular, improper or improvident manner, the minister may by order in writing … (

b) subject to the approval of the Lieutenant-Governor in Council, dismiss … a member of the municipal authority. [ 35 ] This argument is rejected for two reasons. First, the complaint to the Minister did involve financial matters. It involved alleged inappropriate use of town staff and equipment and damage to private property. Second, the

section 4 authority to appoint inspectors is not limited to financial matters. The mandate given to the inspectors under the legislation is wide ranging and allows inspection of all papers and all matters of a municipal authority. The Minister had lawful authority under

section 6 of the Municipal Affairs Act to dismiss, once the statutory pre-conditions are met. Unreasonableness [ 36 ] Mr. Power argues that the inspectors’ report is flawed, and this flawed foundation resulted in an unreasonable decision. He lists several factors at paragraph 23 of his brief in support of that argument. [ 37 ] Mr. Power had the opportunity to raise these several factors with the Minister in the response letter, if he felt they were important and not adequately addressed in the report.

Judicial review is not a de novo hearing; it is not a second chance to state ones’ case or to supplement ones’ evidence. Judicial review is to ensure legality, and the reasonableness or fairness of an administrative decision at time it was rendered. [ 38 ] Among the factors raised by Mr. Power, in his claim that the report is flawed, is the inspectors’ alleged failure to assign weight to two resolutions of council. Resolutions 52-07-2011 and 149-10-2016 both involved the sewer system at 432 Seaforest Drive. Mr.

Power argues that the report gave no weight to these council resolutions, and that these resolutions explain and justify his actions of November 10, 2016. These resolutions were reproduced in chronology

section of the report; the resolutions were discussed in the analysis

section of the report; Power addressed the resolutions in his written response to the Minister; the Minister in his reasons for decision addressed them. Mr. Power had argued in his response letter that resolution 149-10-2016 (“property owners … be asked to remove the sewer line”) provided a reasonable explanation for his actions. The Minister addressed that argument on page 2 of his August 9, 2017 reasons. He rejected that argument, as was his prerogative. It is not for me to determine the correctness of the Minister’s decision, in absolute terms.

As stated in paragraph 18 above, the reasonableness standard is satisfied if the decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. It is not for me to revisit the Minister’s thought process and assign lesser or greater weight to the evidence or arguments presented. [ 39 ] The Minister’s determination that “Councilor Mr. Power’s actions constitute management of the affairs of the municipal authority in an irregular, improper and improvident manner” satisfies the threshold for reasonableness.

CONCLUSION [ 40 ] There was adequate procedural fairness afforded to Mr. Power; the Minister had lawful authority under the Municipal Affairs Act to make the decision; the Minister’s decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. Accordingly, the application is dismissed. COSTS [ 41 ] The Respondent is awarded party and party costs under Column III. . _____________________________ William H. Goodridge Justice [5] Under section 206(2) A council shall, by resolution, declare vacant the office of an elected councillor where that councillor (

a) fails to disclose that he or she has a conflict of interest in a matter being discussed by the council; or (

b) discusses or votes on a matter on which he or she has a conflict of interest. [6] Under section 206(2) a council shall, by resolution, declare vacant the office of an elected councillor where that councillor (

a) fails to disclose that he or she has a conflict of interest in a matter being discussed by the council; or (

b) discusses or votes on a matter on which he or she has a conflict of interest.