Francis J. Coombs Appellant And: Town of Placentia Respondent, 2018 NLSC 53

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Coombs v. Placentia (Town) , 2018 NLSC 53 Date : March 12, 2018 Docket : 201701G5983 Between: Francis J. Coombs Appellant And: Town of Placentia Respondent Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 2, 2018 Appearances: Francis J. Coombs Appearing on his own behalf Giles W. Ayers Appearing on behalf of Town of Placentia Authorities Cited:

CASES CONSIDERED: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47; Dunsmuir v. NewBrunswick, 2008 SCC 9; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19; Moreau-Bérubé v. NewBrunswick (Judicial Council), 2002 SCC 11; Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NLCA 43; BellExpressVu Limited Partnership v. Rex, 2002 SCC 42; Lynch v. St. John's (City), 2016 NLCA 35; Gander (Town) v. Trimart InvestmentsLtd., 2015 NLCA 32; R v. Robb, [1925] O.J. No. 4, 57 O.L.R. 23 (Ont. H.C.); Wanamaker v.

Patterson, 1973 ALTASCAD 60 ,[1973] A.J. No. 46, 5 W.W.R. 193 (Alta. S.C.); Neary v. Portugal Cove-St. Philips (Town), 2013 NLCA 47; Cardinal v. Kent Institution, (SCC), [1985] 2 S.C.R. 643, S.C.J. No. 78; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners ofPublic Utilities), (SCC), [1992] 1 S.C.R. 623, S.C.J. No. 21; Gosse v. Conception Bay South (Town), (NL SC), [1996] N.J. No. 308, 146 Nfld. & P.E.I.R. 192. STATUTES CONSIDERED: Municipalities Act, SNL 1999 c. M-24; Municipal Election Act, SNL 2001 c. M-20.2;

Interpretation Act,RSNL 1990 c. I-19. TEXTS CONSIDERED: Sullivan and Driedger on the Construction of Statutes, 5th ed. (Ottawa: LexisNexis, 2008). REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] This appeal is about conflict of interest in the municipal council context, procedural fairness, and the limits on a council’sability, under the Municipalities Act SNL 1999 c.

M-24 (the “Act”) to declare a councillor’s office to be vacated. [2] In March 2017, Francis Coombs (“Coombs”) was a councillor on the council of the Town of Placentia[1] (“the Council”) andwas a member of the Council’s Public Works Committee (“the Committee”). Coombs is also a businessperson with commercial interestswithin Council’s jurisdiction. Due to snow clearing and parking issues, Coombs wanted Council to move a fire hydrant from one of hiscommercial properties. During the Committee’s discussion on his request, Coombs properly left the meeting. The decision on hisrequest was deferred.

On his return to the meeting room, Committee members alleged that Coombs made comments connecting a third-party development-related project to Council’s decision to remove the fire hydrant on his property. The developer subsequentlycomplained to Council about Coombs’ apparent conflict of interest. [3] Shortly after, on April 27, 2017, Coombs resigned as a councillor. Nonetheless, Council proceeded with an investigation andhearing into the conflict of interest allegation and on July 18, 2017 declared Coombs’ office (seat) of councillor vacated pursuant toparagraph 206(2)(

b) of the Act in that Coombs had ‘discussed or voted on a matter in which he had a conflict of interest’. [4] At the hearing into the complaint held by Council, and on appeal to the Court, Coombs conceded that he was in a conflict ofinterest with respect to the issue of the fire hydrant. However, he challenges the conclusion that his comments on his return to themeeting room constituted discussion on the issue.

He also asserts that he was denied procedural fairness. [5] Although not included in Coombs’ grounds of appeal, the appeal raises the question whether, under the Act, a council candeclare an office vacated after the councillor in question has resigned. This issue was fully canvassed on appeal, both in Council’swritten brief and in oral argument. [6] For the reasons that follow, I have concluded that the Act does not allow a town council to declare an office vacated becauseof conflict of interest if the office has already become vacant by reason of resignation. This conclusion is sufficient to decide the appeal.

However, since the other issues were put forward by Coombs, I will comment on procedural fairness and on Council’s conclusion thatCoombs’ comments amounted to discussion on a matter in which he was in a conflict of interest. On both of these points I find no errorin Council’s position.

Since both Coombs and Council were in agreement throughout that Coombs’ request to remove the fire hydrantfrom his property placed him in a conflict of interest with respect to that issue, I need comment no further. [7] Coombs did not file a Brief or any material in support of his appeal notwithstanding that the Court had ordered during a casemanagement meeting that he was to do so by December 21, 2017. Council filed a Brief and the Record of Appeal.

The casemanagement meeting was held at the instigation of Council in an effort to obtain a better understanding of the grounds of appeal as theNotice of Appeal, as drafted by Coombs, lacked clarity. [8] Coombs is the proprietor of a funeral home in Placentia. The day before the hearing of the appeal, he contacted the Court toadvise that he would not be able to travel to St. John’s for the hearing of the appeal the next day as there were matters at the funeralhome that required his attendance.

The parties were offered an alternative date within two weeks or the option to proceed and Coombscould make his oral submission by telephone. The parties agreed to continue with Coombs’ participation by telephone and that if anydiscrepancies arose in the facts that would require viva voce or affidavit evidence, the matter would continue at a later date. At the endof the hearing, the parties were satisfied that viva voce or affidavit evidence would not be necessary. issues 1. Could Council declare Coombs’ office vacated pursuant to the Act after he had resigned?

2. In any event, was Coombs denied procedural fairness in the process leading to Council declaring his office vacated? 3. In any event, is Council’s conclusion that Coombs’ comments represented ‘discussion’ on the fire hydrant conflict of interest issue sustainable on appeal? 4. Remedy and Costs. facts [ 9 ] The pertinent facts in this matter are not disputed and are largely contained in the written record: 1. Coombs and his wife are directors of Townside Hardware Inc., which owns property located at 21 Veteran’s Way, Placentia. 2.

Coombs was a member of the Committee which approved a project by contractor, Dan Meade, to build affordable housing on Veteran’s Way (“the Meade Project”). Coombs had voted in favour of the Meade Project. At the time of participating in the discussions and approval regarding this project, Coombs was not aware that it would involve a sewer line passing near or over his property on Veteran’s Way. 3. On March 9, 2017, Coombs wrote to Council (on letterhead of Townside Hardware Inc.) asking that Council move a fire hydrant from “his” property located at 21 Veterans Way.

He indicated in this correspondence that up until then the property had not been developed and now the hydrant was causing parking and snow-clearing problems. As well, he now intended to pave the property. 4. On March 13, 2017, Coombs attended a meeting of the Committee. The issue of his request to move the fire hydrant was on the agenda to be discussed at this meeting. Mr. Coombs left the meeting at the point in the agenda that the issue of the fire hydrant was to be discussed.

He returned to the meeting room and attendees claimed that he made comments to the effect that if the fire hydrant issue was not dealt with the sewer line for the Meade Project would not go ahead. No decision was made on the fire hydrant at that meeting. It was deferred to a later date. 5. On March 14, 2017, the day after the meeting, correspondence was received by Council from legal counsel representing Coombs who was identified as “Francis. J. Coombs of Townside Hardware Inc.”.

The letter expressed Coombs’ “grave concerns” regarding the proposed installation of the sewer line in proximity to the property on Veteran’s Way. The correspondence put Council on notice that in the event of damage to its property as a result of the installation of the sewer line, damages would be sought. 6. On March 17, 2017, Council issued a stop work order with respect to the Meade Project due to the issue that had been raised by Coombs regarding the location of the sewer line. 7. On April 25, 2017, Council held a meeting at which Dan Meade presented concerns regarding Coombs.

Coombs declared a conflict and did not attend. Mr. Meade’s allegation was that Coombs was in a conflict of interest in that he had used his position as councillor to exert influence or otherwise act for the benefit of his personal business interests. At that meeting, Council agreed to do an independent investigation into the conflict of interest issue. Lawyer Gregory French was subsequently retained by Council to conduct that investigation. 8. On April 27, 2017, Coombs resigned from his position as councillor effective that date.

At the point of resigning, he had not decided if he would seek to run again as a councillor in the upcoming fall election. 9. Debbie Gear, Executive Assistant for Council, was in attendance at the March 13, 2017 meeting and took the minutes. She was interviewed by Gregory French and recalled Coombs returning to the meeting and stating, “if you don’t move that hydrant for me, don’t go 1 inch on my property with the sewer line.” A handwritten note by her from the meeting was adduced into evidence. It states, “Frank - Hydrant was not my request. I don’t want it any more than the Legion wanted.

Dan Meade will encroach on my property. There is a tradeoff – not 1 inch on my property.” 10. Charlotte Hickey, Chief Administrative Officer of Council, Mary Greene, Administrative Office Manager, and councillors, Dan Greene and Bill Woodman were interviewed by Mr. French and recalled Coombs returning to the meeting and making comments regarding the hydrant removal issue or making some form of threat regarding the sewer line for the Meade Project. 11.

The Minutes of the meeting of March 13, 2017 record: Councillor Coombs left the meeting during discussion on matters concerning #16 Brook Lane and #21 Veterans Way however upon his return he expressed his concern with any activity at #21 Veterans way if the hydrant is not moved. 12. On May 24, 2017, Mr. French interviewed Coombs, in the presence of his legal counsel, as part of the investigation. During that interview, Coombs did not recall making comments connecting the issue of removal of the hydrant to the advancement of the Meade Project. He was shown the hand-written note of Ms.

Gear and did not question its accuracy. At the hearing of this appeal, Coombs did not contest that he made comments regarding the issue of removal of the hydrant when he re-entered the room but did not believe it was done in the context of the meeting. 13. On May 29, 2017, Mr. French completed his investigation and submitted his report (“the French Report”) in which he concluded that Coombs was in a conflict of interest: “The statements made at the March Meeting lead to the reasonable conclusion that Mr.

Coombs was in a conflict of interest at the time he attempted to advocate for the connection between the Hydrant Issue and the installation of the sewer line for the Project.” 14. On June 27, 2017, Council held a Special Meeting with Coombs to review the French Report and the conflict of interest complaint. This meeting was referred to by Council as a “friendly hearing”. Coombs had been provided a copy of the French Report in

advance of the meeting and the purpose of the meeting was to permit him an opportunity to respond to the report and its findings. 15. On July 18, 2017 Council voted and passed the following resolution: Be it resolved that the motion to vacate the Council seat formerly occupied by Frank Coombs due to Conflict of Interest in keeping with

Section 201 of the Municipalities Act and as determined by the fact finding process conducted by Greg French Law, is adopted. THE APPLICABLE LEGISLATION [ 10 ] This matter comes before the Court by way of statutory appeal pursuant to

Section 410 of the Act . Subsections 410(1) , (6) and (7) state as follows: 410

(1) A councillor whose seat has been vacated under paragraphs 206(1)(c), (d), (e), (f), (

g) or (

h) or declared vacant under subsection 206(2) may appeal to a judge of the Trial Division by filing a notice of appeal with the court within 21 days of the date on which he or she is notified by the clerk of the council that his or her position as councillor is vacant and upon paying into the court a sum, or upon giving a bond for the sum, that the judge considered sufficient to defray the costs of the appeal.

(6) A judge shall hear the appeal and the evidence brought forward by the appellant and the council in a

summary manner and may (

a) uphold the vacancy or reinstate a councillor whose seat was vacated under paragraphs 206(1)(c), (d), (e), (f), (

g) or (h); (

b) uphold, amend or rewrite the resolution made under subsection 206(2); or (

c) make another decision that he or she considers to be appropriate in the circumstances.

(7) A judge may make an order as to costs, either for or against the appellant or the council, and may fix the amount of the costs. [ 11 ] The relevant provisions of the Act are as follows: 206

(1) The office of a councillor becomes vacant where (

a) he or she resigns, in writing, from the date specified in his or her resignation, or, where a date is not specified, from the date when he or she files his or her resignation with the clerk or, where he or she resigns at a meeting of the council, from the time of that resignation; (

b) he or she is a member of a council of a municipality that is dismissed under the Municipal Affairs Act, or where under that Act , he or she is dismissed as a member of a council; (

c) he or she stops being ordinarily resident in the municipality; (

d) he or she has been absent from the municipality for more than one year; (

e) he or she remains indebted to the council for outstanding taxes 31 days after the end of the financial year; (

f) without leave of the council, he or she (

i) is not sworn into office within 60 days after his or her election, or (ii) does not attend regular public meetings of the council for 3 successive months; (

g) he or she accepts without the prior written approval of the minister, an office or employment under the council to which a salary or remuneration, not including an honorarium payable out of the funds of the council, is attached; (

h) he or she fails to vote on a matter before the council when required to vote; or

(

i) the council declares the councillor's office vacant under subsection (2) [emphasis added]. 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. 207

(1) A councillor shall not vote on or speak to a matter before the council or a committee of the council where (

a) the councillor has a monetary interest in the matter distinct from an interest arising from his or her functions as a councillor; (

b) the councillor has a monetary interest directly or indirectly in the matter; (

c) a relative of the councillor has a monetary interest in the matter; or (

d) the councillor is an officer, employee or agent of an incorporated or unincorporated company, or other association of persons, that has a monetary interest in the matter. … 208

(1) Where a councillor has an interest described in subsection 207(1), the councillor shall (

a) state that he or she has that interest; and (

b) state the nature of the interest at the beginning of discussion on the matter in which he or she has that interest, and that statement respecting his or her interest shall be recorded in the minutes of the council, or a committee of the council, where that statement was made at a committee meeting. …

(3) Where a councillor declares a conflict of interest under subsection (1) he or she shall immediately leave the meeting while the matter on which he or she has a conflict of interest is being discussed. … [ 12 ] The following subsection of the Municipal Elections Act , SNL 2001 c. M-20.2 is also considered in this appeal: 15.

(3) A person is not qualified to be nominated as a candidate for councillor in an election where

(

a) he or she was dismissed as a councillor or his or her seat as a councillor has been vacated under paragraphs 206(1)(

b) or (

e) or subparagraph 206(1)(f)(ii) of the Municipalities Act, 1999 ; or (

b) his or her seat as a councillor was declared vacant under subsection 20(2) of the City of Corner Brook Act or the City of Mount Pearl Act, subsection 206(2) of the Municipalities Act, 1999 or

section 11 of the City of St. John’s Act , where that election is held not more than 2 years after the date on which that person was dismissed as a councillor or his or her seat was vacated or declared vacant standard of review Issue 1 – Could Council declare Coombs’ office vacated after he had resigned? [ 13 ] The July 18, 2017 resolution by Council declaring Coombs’ office vacant came over two months after his April 27, 2017 resignation and the vacancy of the office by the automatic operation of subsection 206(1)(a).

Whether or not such a resolution, with its consequences, is within the authority of a town council following a resignation is a question not previously considered in this province. Council contends that a purposive

interpretation of the Act allows it to have made an after-the-fact declaration of vacancy. [ 14 ] In Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , at paragraph 22 , the Supreme Court of Canada clearly articulated that when the issue of review involves the

interpretation by an administrative body of its own statute closely connected to its function, then the standard of review is presumed to be reasonableness unless the issue falls within one of the four categories of exception identified in Dunsmuir v. New Brunswick , 2008 SCC 9 . Those categories include “true questions of jurisdiction or vires ”. In such cases, the presumption of reasonableness is rebutted and the standard of review is correctness. [ 15 ] This is consistent with the Supreme Court of Canada’s comment on standard of review in United Taxi Drivers’ Fellowship of Southern Alberta v.

Calgary (City) , 2004 SCC 19 at page 492, where it stated: … Municipalities do not possess any greater institutional competence or expertise than the courts in delineating their jurisdiction. Such a question will always be reviewed on a standard of correctness. … [ 16 ] I find this is one of those cases in which the presumption is rebutted. This is not a situation where Council is making a decision closely connected to its function such as it would be doing in the

interpretation of a bylaw or an assessment review board would be doing in determining whether it may increase a property assessment. Rather, the key question in this case involves a determination of whether a town council has jurisdiction to declare a conflict of interest and vacate an office of a councillor after that councillor’s resignation. This question is of central importance to municipal governance. Furthermore, this is the type of question that requires a consistent approach amongst town councils and hence the desirability of correctness.

As such, I find that the standard of review with respect to this jurisdictional issue is correctness. Issue 2 – Was Coombs denied procedural fairness in the process leading to Council declaring his office vacated? [ 17 ] In Moreau-Bérubé v.

New Brunswick (Judicial Council) , 2002 SCC 11 at paragraph 74 , Arbour J. noted that where issues of procedural fairness or natural justice arise, the reviewing Court should conduct “an assessment of the procedures and safeguards required in a particular situation.” Therefore, a review of the procedures followed by Council is required to ensure that it adhered to the principles of natural justice in dealing with this matter.

Issue 3 – Is Council’s conclusion that Coombs’ comments represented discussion on the conflict of interest issue sustainable on appeal? [ 18 ] Subsection 410(6) of the Act states that the Court shall hear the appeal and the evidence brought forward in a

summary manner. This seems to contemplate a de nova hearing and many appeals pursuant to 410(6) have proceeded in that manner. In such a case, there would be little, if any, deference required to be given to Council’s decision. In this case, there was no dispute in the facts and, in particular, the facts pertinent to this issue being Coombs’ actions in the aftermath of declaring a conflict of interest. As such, the appeal proceeded more in keeping with a review. In addressing this issue, Council had to apply the undisputed facts to determine whether the statutory factual requirement of “discussion” had been met.

As such, Council’s conclusion involved drawing a factual inference and therefore is reviewable on a standard of reasonableness. analysis Issue 1 - Could Council declare Coombs’ office vacated pursuant to the Act after he had resigned? [ 19 ]

Section 16 of the

Interpretation Act , RSNL 1990, c. I-19 requires that: Every Act and every regulation and every provision of an Act or regulation shall be considered remedial and shall receive the liberal construction and

Interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to its true meaning. [ 20 ] In Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NLCA 43 , the Court of Appeal noted that

section 16 directs the Court to consider every provision of a statute as being remedial and to interpret it so that it best ensures the attainment of its objectives according to its true meaning. [ 21 ] As noted by the Supreme Court of Canada in Bell Express Vu Limited Partnership v. Rex , 2002 SCC 42 at paragraph 26 , the modern principle of statutory

interpretation is that the words of an Act are to be read in their entire context and in their grammatical and

ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the legislature. [22] In Lynch v. St. John’s (City), 2016 NLCA 35, Barry, J.A. noted at paragraph 33: The proper approach to

interpretation today is a contextual one, where courts look to all indicators of meaning rather than assumingcertain language may be unambiguous so that the text alone governs… The rule of law contemplates judges seeking, in good faith, toarrive as close as they can to the expectations of the legislators, even though absolute certainty of legislative intent may not be attainable. [23] The Supreme Court of Canada directed in United Taxi that legislation which empowers municipalities should be given a broadand purposive

interpretation: The evolution of the modern municipality has produced a shift in the proper approach to the

interpretation of statutes empoweringmunicipalities. This notable shift in the nature of municipalities was acknowledged by McLachlin J. (as she then was) in Shell CanadaProducts Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231, at pp. 244-45. The "benevolent" and "strict"construction dichotomy has been set aside, and a broad and purposive approach to the

interpretation of municipal powers has beenembraced: Nanaimo, supra, at para. 18. This interpretive approach has evolved concomitantly with the modern method of draftingmunicipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particularsubject areas, choosing instead to confer them broad authority over generally defined matters: The Municipal Act, S.M. 1996, c. 58,C.C.S.M. c. M225; Municipal Government Act, S.N.S. 1998, c. 18; Municipal Act, R.S.Y. 2002, c. 154; Municipal Act, 2001, S.O. 2001,c. 25; The Cities Act, S.S. 2002, c. C-11.1.

This shift in legislative drafting reflects the true nature of modern municipalities whichrequire greater flexibility in fulfilling their statutory purposes: Shell Canada, at pp. 238 and 245. [24] In this case, however, it is arguable that the power to declare a councillor’s office vacant is not the type of core function of amunicipal council contemplated by the Supreme Court of Canada in United Taxi. That case dealt with the authority of the City ofCalgary to enact by-laws to regulate the taxi industry. The enactment of such by-laws is clearly a matter of a municipal governmentfulfilling its statutory purpose.

On the other hand, this case involves a question of the authority of a municipal government, subsequentto a resignation, to make a factual declaration that triggers a statutory conclusion pursuant to paragraph 206(1)(

i) that the already vacantoffice [paragraph 206(1)(a)], has become vacant. This is not a power necessary to fulfill a municipal council’s statutory mandate. Giventhe punitive nature and consequences of such a power, these circumstances may not warrant as broad and purposive an

interpretation ofthe legislation. Nonetheless, in an abundance of caution, I have undertaken a broad and purposive

interpretation in the analysis of thiscase. [25] Furthermore, as noted by our Court of Appeal in Gander (Town) v. Trimart Investments Limited, 2015 NLCA 32, at paragraph19, a broad and purposive approach to

interpretation of municipal legislation does not mean that a municipality can accord itselfauthority to take actions which fall outside of its statutory grant. A municipality only has the authority conferred on it by its enablinglegislation: It can only exercise powers which are explicitly authorized or found to be authorized after determining the true meaning of thelegislation.

If authorization for the municipal action is not found in the statute, properly and purposively construed, then the action willbe held to be ultra vires the municipality and will not be permitted. [26] This is the analytical and legal framework against which the actions of Council in this case must be considered. [27] Subsection 206(1) of the Act lists a number of ways that the office of a councillor can become vacant.

One of those ways is byway of resignation of the councillor and another is where council declares the office vacant pursuant to subsection 206(2). [28] Subsection 15(3) of the Municipal Elections Act provides that a councillor whose seat has been declared vacated pursuant tosubsection 206(2) of the Act cannot run again within two years of the vacating of the seat. [29] Council argues that insofar as section 206(1) of the Act states the office becomes vacant “where” the council makes such adeclaration, as opposed to “when”, this indicates that Council was entitled to make a declaration of vacancy after Coombs’ resignation.

It also contends that a broad and purposive

interpretation of the Act along with interpreting it in the context of section 15(3) of theMunicipal Election Act, also leads to the conclusion that Council may declare an office vacant after a councillor has resigned. [30] Council contends that the Act should be interpreted so as to prevent a person who has behaved as Coombs has from frustratingthe conflict of interest investigation and subsection 15(3) of the Municipal Elections Act by resigning before the investigation iscomplete and thereby being free to run again for office within a few months of resigning.

Council submits that this would be tantamountto allowing him to escape the consequences of subsection 15(3). [31] The wording of subsection 206(1) on its face seems straightforward: a councillor’s office becomes vacant by virtue of a numberof scenarios including the councillor resigning or Council declaring the office vacant. This plain reading would suggest that the officebecame vacant when Coombs resigned and therefore could not be declared vacant by Council at a later date. A broad and purposiveinterpretation, however, requires more.

Even where the language appears to be unambiguous, the Court must go further and examine thewording in the context of the scheme of the legislation, its object and the legislature’s intention. [32] In the case of a resignation, the legislature took care under paragraph 206(1)(

a) to specify that the effective date of the vacancyto be the date of resignation. Paragraphs 206(d), (

e) and (

f) also refer to timelines that trigger vacancy of office: being absent from themunicipality for more than one year, remaining indebted to council for outstanding taxes 31 days after the end of the financial year, andnot being sworn in within 60 days of election, respectively. Clearly, the intent of subsection 206(1) is to leave little doubt under whichcircumstances a council office becomes vacant. The legislative intent is to ensure prompt and automatic vacating of the seat once atrigger is established.

There is nothing in the wording to suggest that once the objective of vacating an office is met, the office somehowremains susceptible to being vacated through the operation of another paragraph of 206(1). To illustrate, if a councillor resigned and theoffice is thereby vacated under (a), there could not be a further vacating of the office under (

c) if the now former councillor has movedfrom the municipality.

[33] A declaration by a town council under subsection 206(2) is one of the mandatory vacancy triggers in 206(1). Once any one ofthe factual circumstances in 206(1)(

a) to (

i) are established, including the fact of a subsection 206(2) declaration, then the office becomesvacant. Viewed in this light, the objective of subsection 206(1) is the automatic and prompt vacating of the office in question when oneof the triggering events occur. Once the office is vacated through the happening of one of the listed circumstances, the purpose ofsubsection 206(1) is achieved and its operation exhausted. [34] While Council contends that there would be no sanction or penalty to a councillor in Coombs’ circumstances who resigns whileunder investigation for conflict of interest, this is not the case.

There are consequences for councillors who resign. They immediatelylose their office and are not guaranteed that they will be able to regain it, if and when, they decide to run again. If the legislatureintended for such councillors to be caught by subsection 15(3) of the Municipal Elections Act it could have clearly and unambiguouslysaid so. [35] When such situations unfold, it is then up to the electorate to decide if they wish to re-elect a person who did not fulfill theirterm under those circumstances.

The right to put oneself forward for election should not be taken away without clear statutory direction (R. v. Robb [1925], O.J. No. 4, 57 O.L.R. 23 (Ont. H.C.) at page 25). Similarly, the right of the public to be represented by the personof their choice should not be lightly interfered with or set aside (Wanamaker v. Patterson, 1973 ALTASCAD 60 , [1973] A.J.46, 5 W.W.R. 193 (Alta. S.C.) at paragraph 200). [36] The mischief that subsection 15(3) of the Municipal Elections Act seeks to address is not aimed at councillors who resign whileunder investigation for a conflict of interest.

Rather councillors who find themselves in a conflict of interest situation, or faced with anallegation of a conflict of interest, and do not resign, would be caught by the consequences of subsection 15(3). [37] Care must be taken not to import the punitive nature of subsection 15(3) of the Municipal Elections Act on a councillor inbroader circumstances than intended by the legislature. The inherent danger in such an

interpretation is accentuated when one querieswhether such a power would be time limited. How far back could Council go in investigating a conflict of interest? How long couldCouncil wait before declaring a seat vacant after resignation? [38] In my view, the legislature did not intend that a councillor in Coombs’ position who resigns his office, could subsequently havehis office declared vacant and thereby be subjected to the punitive consequences of subsection 15(3) of the Municipal Elections Act.

Theobjective of subsection 206(1) of the Act is the automatic and prompt vacating of a councillor’s office not the punishment of individualcouncillors. It is governance focused. [39] Caution must be exercised so as not to allow a municipality to utilize a professed broad and purposive

interpretation of itsenabling legislation so as to confer upon itself powers that are not explicitly granted by the legislature. This is particularly the case whenthe powers sought to be bestowed involve the making of a punitive resolution. [40] Coombs resigned on April 27, 2017. At that point, pursuant to section 206(1)(

a) of the Act, his office became vacant as a resultof his resignation. The office could not be declared vacant by Council on July 18, 2017 when it passed a resolution to that effect as itwas already vacated. By doing so, the resolution was without authority. [41] As discussed in the Introduction, I will now turn, in any event, to address the remaining issues. Issue 2 - Was Coombs denied procedural fairness in the process leading to Council declaring his office vacated? [42] A high degree of procedural fairness is warranted given the serious potential outcome to a councillor in such circumstances.

Our Court of Appeal in Neary v. Portugal Cove-St. Phillips (Town), 2013 NLCA 47 emphasized the importance of procedural fairness atthe level of Council’s decision-making in such matters. It was held that if procedural fairness is not afforded at that level, Council’sdecision should be set aside by the reviewing Court. The reviewing Court cannot speculate as to what the outcome may have been hadprocedural fairness been afforded the Appellant at the first stage. [43] In Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, S.C.J.

No. 78, paragraph 22, Le Dain,J. wrote: I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appearto a reviewing court at the hearing would likely have resulted in a different decision. [44] This was affirmed by the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board ofCommissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, S.C.J. No. 21 at 645, where it stated that if there hasbeen a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision.

Rather, the hearing and any orderresulting from it are to be found void. [45] Bearing this in mind, I now turn to what was required of Council to ensure that Coombs received the appropriate level ofprocedural fairness at the first level. The case of Gosse v. Conception Bay, (NL SC), [1996] N.J. No. 308, 146 Nfld.& P.E.I.R. 192 at paragraph 15, set out a procedure to be followed by municipalities in circumstances dealing with the potential removalof a councillor from office.

This procedure which has been adopted by subsequent cases, is as follows: 1. provide the councillor with a written document explicitly setting out the details of the allegations of conflict of interest; 2. provide the councillor with a reasonable period of notice prior to the hearing; and

3. permit the councillor during the hearing (

i) to be heard by himself or herself or through legal counsel; (ii) to examine and cross-examine witnesses, submit exhibits and make submissions. [ 46 ] Council carried out a thorough independent investigation by hiring a lawyer to interview witnesses and to otherwise investigate the facts surrounding the alleged conflict of interest. Coombs was interviewed by Mr. French in the presence of his legal counsel.

This is an appropriate way in which to investigate such issues, particularly in smaller municipalities where parties are well known to one another and may be expected to be able to continue to work together after the completion of the investigation. I find that in this respect, Coombs was afforded procedural fairness at the investigation stage. [ 47 ] Coombs was provided a copy of the French Report prior to the Special Meeting of Council held on June 27, 2017 in sufficient time to review it.

He was also given a reasonable period of notice prior to the hearing. [ 48 ] Coombs was also permitted to be heard at that meeting, albeit the type of hearing afforded to him was perhaps not what was contemplated by Gosse . In the minutes of the Council meeting of June 13, 2017, councillors discussed the procedure that would unfold at the upcoming Special Meeting. The minutes reflect the following points from the discussion: It was suggested that council hear him out without comment. Council feels that Mr. Coombs should not speak through his lawyer but peer to peer – although the choice is his.

Noting that a decision does not have to be made at this review, Council was reminded of the friendly presentation and a decision will be made at the July meeting. Mr. Coombs will present to his peers on June 27, 2017 at 7:00 p.m. [ 49 ] Portions of the minutes of the June 27, 2017 Special Meeting also reflect that this was not to be an adversarial process but rather a “friendly hearing” and more of a presentation by Coombs than a hearing: “The purpose of the meeting was to provide Mr.

Frank Coombs, former councillor with the Town of Placentia, a venue for a friendly hearing to present his statement to Council in response to allegations made by a taxpayer in the community that he, Mr. Coombs, was in a conflict of interest with regard to sewer line installation near his property on Veteran’s Way.” [Emphasis added] “The purpose of this session was to allow Mr. Coombs the opportunity to respond to the report (from Greg French Law) which he did. “Mayor Power thanked Mr.

Coombs and reminded everyone that this is not a venue for debate” [ 50 ] Council submits that it took this approach to keep matters friendly so as to ensure it was not confrontational for Coombs. While cordiality and an appropriate level of decorum are to be encouraged and are indeed required in such proceedings, a so-called “friendly hearing” may not be sufficient to ensure natural justice is afforded in these cases. This is particularly true where the facts are contentious.

In such circumstances, a councillor should be afforded the opportunity to challenge the assertions made against him or her by way of cross-examination of witnesses and through adducing evidence. In other words, a hearing more in keeping with an adversarial process will be required in those circumstances. [ 51 ] In the case currently before the Court, the key facts regarding the conflict of interest allegation were not in dispute.

While Coombs did not recall exactly what he said when he returned to the room on March 13, 2017, he did not dispute that he made comments related to the issue of the removal of the fire hydrant. Therefore, this was not a situation where Coombs was disputing the relevant facts as determined in the French Report and, as such, cross-examination of witnesses would not be necessary. [ 52 ] Furthermore, during the appeal, Coombs did not take issue with the procedure followed at the June 27, 2017 ‘hearing’ and felt that he had been given a full opportunity to respond to the French Report.

Overall, he felt the minutes of that meeting captured the submissions he had made at the time. [ 53 ] Coombs’ main issue with respect to the June 27, 2017 hearing, concerned animosity between himself and Chief Administrative Officer, Charlotte Hickey. He reiterated on appeal what he submitted at the Council hearing, that he felt the issue of his conflict of interest had been carried further in his case than in other situations. He now ties this to a “heated discussion” he had with Hickey around the same time as the conflict of interest issue was being considered by Council.

Coombs felt that Hickey was in a conflict of interest in that her husband worked as a contractor on the Meade Project. The inference being that there was a conspiracy against him due to his disagreement with Hickey.

[ 54 ] Coombs had not raised this issue prior to his oral submissions on this appeal and he acknowledged that he had not objected to Hickey’s presence at the time of the hearing held by Council at which Hickey was in attendance. Although he felt she should not have been in attendance, he did not raise it at the time and he did not suggest that her presence impeded his ability to make a full submission at the hearing.

Council contends that his issue with Hickey is a personal one and is not relevant to this appeal. [ 55 ] Hickey is not a councillor and was not a decision-maker with respect to the issue of Coombs’ alleged conflict of interest. She did not have a vote. There is no evidence to suggest that she had any input into the decision made by Council with respect to the finding that Coombs was in a conflict of interest (other than that she, like others, was interviewed by the investigator).

Furthermore, there is no evidence that she had any influence or impact on the ultimate decision to declare Coombs’ office vacated nor that her presence at the meetings dealing with this issue effected the procedural fairness otherwise afforded to Coombs. [ 56 ] Therefore, I am satisfied that Coombs was afforded an appropriate level of procedural fairness.

Issue 3 - Is Council’s conclusion that Coombs’ comments represented ‘discussion’ on the fire hydrant conflict of issue sustainable on appeal? [ 57 ] Subsection 206(2) requires a council to declare a councillor’s office vacated when a councillor discusses or votes on a matter in which he or she has a conflict of interest. In this case, it is not necessary for the Court to review Council’s conclusion that Coombs was in a conflict of interest as Coombs acknowledged the conflict of interest both before the Council hearing and on appeal in this Court. Accordingly, I will say nothing further on the point.

Coombs does take issue, however, with the second precondition – that he discussed the matter. [ 58 ] At the appeal hearing, Coombs’ primary submission with respect to the conflict of interest issue centered upon his belief that he had followed the appropriate protocol required of him. He does not dispute that at the time of the Committee meeting on March 13, 2017, he was in a conflict of interest with respect to the hydrant issue and with respect to another issue on the agenda that day.

He declared the conflicts and recused himself from the meeting when the agenda items in which he had an interest were to be discussed. He returned to the meeting room and, while he does not recall exactly what he said, he does not dispute that he made comments regarding the hydrant issue.

He contends, however, that his comments were made before he “returned to the table” and as such were outside the confines of the meeting. [ 59 ] In this respect, Coombs’ submission appears to be that he complied with subsection 208(3) of the Act by removing himself from the room while the issues in which he had an interest were being discussed.

The minutes of the meeting record that Coombs left the meeting during the discussion on the matters in question, “however upon his return he expressed his concern with any activity at #21 Veterans Way if the hydrant is not moved.” Coombs did not contest the accuracy of the minutes. Insofar as this is recorded in the minutes, I accept that his comments occurred during the meeting.

In any event, the uncontroverted evidence as set out in the French Report is that the comments were made in the presence of the other two members of the Committee who had decision-making powers over the issue as both of them had some recall of Coombs’ comments.

Councillor Greene recalled that Coombs used the threat of the sewer line and that if the hydrant was not moved, he would create problems. [ 60 ] Once Coombs declared a conflict of interest, he should not have spoken to the issue in the presence of the other councillors before the decision was made, whether he believed he was discussing it within the meeting or not. It would be an illogical

interpretation of subsection 208(3) to say that he could speak to the issue in the presence of the decision-makers outside the formal meeting but not within. In fact, to do the former would be more ominous in that such discussions could occur in a situation where there was no record through minutes of what was said that could potentially influence the decision-making process. [ 61 ] Overall, I am satisfied that at the time the comments were made by Coombs, the Committee had not voted on the issue and as such it was still before it. Therefore, it was reasonable for Council to conclude that Coombs’ comments constituted discussion on the issue within the meaning of subsection 206(2) (

b) of the Act . Issue 4 - Remedy and Costs [ 62 ] Although Coombs stated in the Notice of Appeal that he was seeking damages and loss of honorarium, on the hearing of the appeal, he advised that he was not seeking any compensation from Council. The remedy he sought was to have the decision finding him in conflict of interest set aside and sent back to Council for further investigation. [ 63 ] The statutory appeal rights and the powers of a judge hearing such an appeal are set out in

section 410 of the Act . The powers of the appellate court in terms of remedy in the case of an office declared vacant pursuant to section 206(2) are set out in subsection 410(6) (b): to uphold, amend or rewrite the resolution. As well, subsection 410(6) (

c) confers a broad discretion to make another decision that is considered to be appropriate in the circumstances. [ 64 ] Council’s decision to declare the office vacant is set aside. Council did not have the power to vacate the office subsequent to Coombs’ resignation. Coombs’ office became vacant on April 27, 2017 when he resigned. [ 65 ] In the usual course, the successful party will be awarded its costs. In this case, there are mixed results. The substantive issue on this appeal that Coombs sought to have adjudicated and set aside was his conduct regarding the conflict of interest.

I have upheld that finding and found that Coombs did not comply with his statutory obligations in speaking to the conflict of interest issue at the March 13, 2017 Committee meeting. Therefore, Coombs has not been successful in that aspect of the appeal. On the other hand, Council has not been successful in its submission that it had the authority to retroactively declare Coombs’ office vacant. [ 66 ] While arguably, overall Coombs is the successful party in this matter, Council seeks its costs against Coombs as it contends that Coombs has not taken this appeal seriously.

He did not file a brief and materials as ordered by the Court and Council had to take the initiative by way of a case management meeting to clarify the grounds of appeal. Council also submits that the fact that Coombs did not come to St. John’s for the hearing demonstrates a lack of attention on his behalf to this matter. Council submits that it is a small municipality with a limited budget and it has incurred substantial legal costs in responding to this appeal.

[ 67 ] Coombs is a self-represented litigant and some leeway is to be afforded to him in terms of the manner in which he articulated his grounds of appeal. His status of self-representation does not, however, excuse him from complying with a Court order to file documentation in preparation for the appeal. In the ordinary course, I would have been inclined to award Coombs costs in this matter. However, because of his lack of compliance with the Court Order, I am satisfied that this is an appropriate case for each party to bear his or its own costs.

Disposition [ 68 ] Council did not have the authority to declare Coombs’ office vacated after his resignation. Therefore, the appeal is allowed and the decision of Council to vacate the Appellant’s office is set aside. Each party shall bear his or its own costs. _____________________________ Sandra R. Chaytor Justice