Laura E. Flynn Applicant And: Her Majesty the Queen IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2018 NLSC 29

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Flynn v. Newfoundland and Labrador , 2018 NLSC 29 Date : February 12, 2018 Docket : 201701G6148 In The Matter of the Community Retention Policy of the Department of Municipal Affairs; And In The Matter of the decision of Keith Hutchings, Minister of Municipal and Intergovernmental Affairs dated 5th March 2015 Between: Laura E. Flynn Applicant And: Her Majesty the Queen IN RIGHT OF NEWFOUNDLAND AND LABRADOR Respondent Before: Justice Gillian D. Butler Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 2, 2018

Summary: Judicial Review of a Decision of the Minister of Municipal and Inter- Governmental Affairs on March 5, 2015. The Minister accepted the recommendation of an Independent Reviewer that the Applicant not be considered a permanent resident of William’s Harbour and therefore not entitled to the rights and privileges associated with such status under the Department’s Community Relocation Policy. Held:

There was a breach of natural justice in the administrative process that renders the Decision void. Further, the recommendation of theReviewer, accepted by the Minister failed to meet the reasonableness standard of review. Appearances: Thomas W. Fraize, Q.C. Appearing on behalf of the Applicant Jessica R. Pynn Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653; Fudge v.Newfoundland and Labrador (Minister of Municipal Affairs), 2013 NLTD(G) 14; Dunsmuir v. New Brunswick, 2008 SCC 9; Kippenhuckv.

Her Majesty the Queen in Right of Newfoundland and Labrador, (September 19, 2016), St. John’s 2015 01G 3823 (N.L.S.C. (T.D.)); Russell v. Her Majesty the Queen in Right of Newfoundland and Labrador, (September 19, 2016), St. John’s 201501G3818 (N.L.S.C.(T.D.)); Petty Harbour-Maddox Cove (Town) v. Eastern Regional Appeal Board, 2015 NLTD(G) 111 STATUTES CONSIDERED: Evacuated Communities Act, R.S.N.L. 1990, c. E-15 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D, Rule 54.06.(

d) TEXTS CONSIDERED: Philip Jones, Q.C. & Anne S. de Villars, Q.C., Principles of Administrative Law, 6th ed. (Edmonton: Thomson Reuters, 2014 REASONS FOR JUDGMENT Butler, J.: INTRODUCTION [1] This Application concerns Laura Flynn’s claim to be a permanent resident of William’s Harbour, Labrador and the September29, 2014 Decision (the “Decision”), of an Independent Reviewer (the “Reviewer”).

Consistent with the Policy which guided him, theReviewer made a recommendation to the Minister of Municipal and Inter-Governmental Affairs “that Laura Flynn not be considered as apermanent resident of William’s Harbour under the Policy”. [2] By virtue of the Evacuated Communities Act, R.S.N.L. 1990, c. E-15, the Minister established the Community RelocationPolicy dated March 2013, (the “Policy”). The Reviewer determined that sections 1.d., 2 and 3 of the Policy were relevant to Ms. Flynn’sAppeal. I agree; the sections read as follows: 1.d.

Permanent Resident: Permanent residency is established if, in each of the two twelve – month periods immediately precedingthe Relocation Request Date, an individual fulfills the requirements listed in (a), (

b) and (

c) below: (

a) The individual resided in the Community requesting relocation for at least 183 days in each of the two twelve – month periods. Absence from the Community for the following reasons will be accepted as residing in the Community and will count toward calculationof the 183 days:

i. The individual was temporarily absent from the community to attend grade school or post-secondary school. ii. The individual was temporarily absent for medical reasons substantiated by a doctor’s note satisfactory to the Minister or to assist a close relative who was temporarily absent for medical reasons. iii. The individual or his / her spouse worked outside the Community and regularly returned to the Community between periods of outside employment. (

b) The individual did not establish permanent residency in another Community; and (

c) Proof of (

a) and (

b) must be satisfactory to the Department. 2. STEPS IN THE EVALUATION OF COMMUNITY RELOCATION REQUESTS After the Department of Municipal Affairs receives a request for relocation assistance and determines the Relocation Request Date, consideration of that request will proceed according to the following steps: a. The Department will determine the residency status of persons in the Community (i.e., Permanent Resident or Non-Resident Residential Property Owner) and give written notification of the determination made in that regard. b.

As indicated in paragraph 3 below, individuals have a right to appeal the determination of residency status. c. Based on the determination of residency status, the Department will complete an analysis of the total cost of relocation assistance compared to the total savings over a twenty year period that would result from the withdrawal of Provincial Government services to the Community. If the estimated costs exceed the estimated savings, Government’s consideration of relocation assistance will stop unless there are significant health or life-safety considerations involved in the relocation request. d.

The Department will conduct a vote involving voting aged Permanent Residents. If the vote does not confirm that at least ninety percent of the eligible voters want to relocate, Government’s consideration of the relocation request will stop. e. If the vote indicates ninety percent or more of the individuals eligible to participate in the community vote support relocation, the Department will request Government approval of: i. the relocation of the community; ii. sufficient funds to pay relocation assistance; and iii. an Order in Council, pursuant to

section 4.1 of the Public Utilities Act (the Act) exempting utilities from the application of

Section 38 of the Act for that community. f. After receiving the approvals in Item (e), the Minister of Municipal Affairs will make conditional offers to purchase habitable residential properties. These conditional offers to purchase will be made to all Permanent Residential Property Owners. The conditional offers to purchase will include a clause making each offer conditional on at least ninety percent of Permanent Residential Property Owners signing written acceptance of the offers to purchase as drafted by the Minister.

The Department of Municipal Affairs will pay the cost of a solicitor selected by the Community to assist Permanent Residential Property Owners in their review of the conditional offers to purchase and any other legal documentation involved if the relocation proceeds.

g. The Minister will approve the relocation assistance request if at least ninety percent of the Permanent Residential Property Owners in the community sign acceptance to the offers to purchase as drafted by the Minister. h. The Department and all relocating property owners (including Permanent Residential Property Owners and Commercial Property Owners) will execute legal documents transferring title to the Crown in return for the relocation assistance detailed in the Department’s offer of assistance.

Relocation assistance for Permanent Residents of voting age who are not Permanent Residential Property Owners will be processed at the same time. 3. APPEAL OF RESIDENCY STATUS DETERMINATION The Department’s determination of residency status impacts on eligibility to vote in the Community vote and on the determination of the level of relocation assistance payable. An individual may appeal the Department’s determination of residency status (i.e. Permanent Resident or Non-Resident Residential Property Owner). An appeal may be based upon either the

interpretation of facts by the Department related to residency or upon circumstances not envisioned by this policy which may warrant an exception to the residency criteria. An appeal must be made in writing to the Minister of Municipal Affairs within 30 calendar days following receipt of written notification of the Department’s decision on residency status. The appeal request must include all documentation and must detail all arguments in support of an appeal. Within 15 calendar days of receiving an appeal of residency status, the Minister shall appoint an independent reviewer to consider the appeal and make a recommendation to the Minister. The reviewer may contact the person(

s) who filed the appeal to request additional information but is not required to do so. The reviewer will be required to file a written report on the appeal within 30 calendar days of being appointed. Having considered the reviewer’s recommendation, the Minister will make a final determination of residency status. appeal process [ 3 ] Pursuant to

section 3 of the Policy, the Reviewer was authorized to make recommendations to the Department and pursuant to

section 1.d. Laura Flynn was required to establish the following: 1. Firstly, that she resided in William’s Harbour for at least 183 days in each of the two, twelve-month periods prior to the relocation request date of April 12, 2013. In this regard, “absences from the community for” three separate reasons could be “accepted as residency in the community and will count toward calculation of the 183 days”. Of the three exceptions, it is agreed that the only one that was claimed by Laura Flynn was the temporary absence for medical reasons substantiated by a doctor’s note satisfactory to the Minister.

I shall return to this later herein. 2. Secondly, that she “did not establish permanent residency in another community”. [ 4 ] As was required of all individuals claiming permanent residency, Laura Flynn did, on August 9, 2013, complete the standard form Affidavit provided by the Respondent. In it she specified the following: 1. William’s Harbour had been her permanent residence for 34 years (1979-2014). 2. She had not established permanent residency in another community. 3.

In the two, twelve-month periods immediately preceding the relocation request date of April 12, 2013, she had resided in William’s Harbour for at least 183 days. 4. Between April 2011 and March 2012, she identified 152 days present in the community and in the period April 2012 to March 2013 specified 110 days present in the community. 5. The address for the property she owned at William’s Harbour was P.O. Box 13, William’s Harbour, NL, A0K 5V0. 6.

That this address was what was depicted on her 2010 to 2012 income tax returns, utility bills and also that she was registered to vote in William’s Harbour in the upcoming 2013 municipal elections.

7. In

part 9, ‘General Comments’, Laura Flynn claimed an exemption for the total of 182 days required by

section 2 stating, “This house in William’s Hr. is my only permanent residence. I can’t stay here in the colder months due to medical and mobility issues.” 8. As required by the standard form Respondent’s Affidavit, Laura Flynn undertook to provide to the Department, copies of available information; she also consented to allow the Department direct access to relevant records to verify her claim. 9. Attached to her standard form Affidavit were consents specific to Motor Vehicle Registration, Aliant and Canada Revenue Agency. 10.

Attached to her Affidavit also were copies of her 2012 GST Credit Notice, her birth certificate, NL Hydro bill for July 2013 and an undated CRA remittance voucher. With the exception of the birth certificate (which referenced Rexon’s Cove, Labrador), each of these records reflected William’s Harbour as Laura Flynn’s residency. [ 5 ] Subsequently on September 17, 2013, Laura Flynn wrote the Community Relocation Office enclosing a medical report to support the exemption she sought for

section 2 of the Policy. Dr. Ruth LeDrew’s note of August 2013 read: “Laura has osteoarthritis of both knees. She is unable to walk very far or walk up and down stairs without assistance. She also has other medical problems. She is not able to live alone without assistance in her home in Labrador.” [ 6 ] It is not disputed that in response to these documents the Department determined that Laura Flynn had not met the requirements of the Policy for permanent residency. A letter to this effect was prepared on June 10, 2014 and mailed to Laura Flynn at 367 Foxtrap Access Road which is the property of one of her sons.

Specifically, this letter confirmed the Department’s finding that “… we have determined you to be non-resident property owner of William’s Harbour. This determination is based on an extensive review of your Affidavit and supplementary information you provided that you established permanent residency in Foxtrap, which is contrary to 1.d. (

b) above.” [ 7 ] As a result of this finding, Laura Flynn was not entitled either, to vote on the potential relocation of William’s Harbour or (if the relocation proceeded), to relocation assistance. [ 8 ] The June 10, 2014 letter was received by Laura Flynn and because it referenced her entitlement to engage the appeal process, on July 5, 2014 she sent an email to Andrew Wright confirming her intention to appeal the Decision regarding her residency status.

On July 23, 2014, the Reviewer was engaged to review the appeals received from members of the community of William’s Harbour and Snook’s Arm. [ 9 ] Sometime between August 2014 and September 29, 2014 the Reviewer travelled to William’s Harbour and met with Laura Flynn as well as other individuals who had filed appeals. The Record produced by the Department contained no reference to either any notes made by the Reviewer during his meeting with Ms. Flynn, or any

summary he had made following the meeting. [ 10 ] On September 29, 2014, the Reviewer submitted thirteen reports (including his Decision on Laura Flynn) to the Department. Relative to all thirteen appeals, an internal Decision Note was prepared in January 2015 recommending that the Minister accept each of the Reviewer’s recommendations. The Decision Note does not contain details of Laura Flynn’s Appeal because the Reviewer’s recommendation for her case was consistent with the Minister’s initial finding.

Instead, the Decision Note addressed six appeals where the Reviewer was recommending a conclusion of permanent residency contrary to the Minister’s initial assessment. [ 11 ] On March 5, 2015 the Minister wrote Ms. Flynn at 367 Foxtrap Access Road advising that he had accepted the recommendation that she did “not meet the criteria of a permanent resident of William’s Harbour”.

The Decision of the Reviewer was attached. [ 12 ] The Applicant acknowledges a telephone call from Andrew Wright in February 2015 but Laura Flynn denies receipt of the March 5, 2015 letter which the Respondent acknowledges was sent by regular mail. It was not until the family heard public broadcasts respecting the resettlement of William’s Harbour in March 2016 that further enquiries were made on Laura Flynn’s behalf.

Ultimately she received a copy of the Reviewer’s Decision but as a result of the delay, her Application for Judicial Review was not filed until September 2017. [ 13 ] Counsel for the Respondent asserts that the Application was not filed within a reasonable time of the rendering of the Decision pursuant to Rule 54.06 (

d) of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D. However, during the hearing I concluded that the facts referenced above, supported a finding that the delay was reasonable. analysis 1. Whether certain Affidavit evidence should be excluded from consideration on this judicial review either as “fresh evidence” or “irrelevant”; 2. Whether procedural fairness was honoured or if there was a breach of the rules of natural justice in the Appeal process; and 3. If the Minister’s Decision can be supported by the reasonableness standard of judicial review that applies.

Fresh or Irrelevant Evidence [ 14 ] In response to the challenge made to its characterization as fresh evidence, Mr. Fraize acknowledged that it would be inappropriate for me to consider the contents of the September 22, 2017 letter from Todd Russell, which he had appended as Tab 3 of his Memorandum of Fact and Law filed December 20, 2017.

I confirm that no reliance can be placed on this document in the assessment of whether the Decision should be quashed. [ 15 ] While the Respondent took no challenge to either the Affidavits of Laura Flynn sworn December 18, 2017 and January 26, 2018 or the Affidavit of Heather Flynn sworn December 12, 2016, it objected to reliance upon the December 11, 2016 Affidavit of

Thompson Flynn who was one of Laura Flynn’s sons. It is agreed that the contents of this Affidavit would represent evidence that wasnot in the hands of the Reviewer; further, Ms. Pynn challenged the relevancy of the contents. [16] On review of Thompson Flynn’s Affidavit, I am unable to characterize the contents as fresh evidence because of theuncertainty associated with what was discussed at the meeting held between Ms. Flynn and the Reviewer. It is possible that theReviewer was aware from his meeting with Laura Flynn that her son, Thompson occupied her home.

However, to the extent its contentsrelate to Thompson Flynn’s own residency in William’s Harbour, I would agree with counsel for the Respondent that such contents areirrelevant to the question of whether the conclusions made respecting Laura Flynn’s residency were reasonable. As a result, I will notconsider Thompson Flynn’s Affidavit. Procedural Fairness The Concept [17] Natural justice is a legal concept which requires fairness in the process of decision-making. Judicial review is used to controlthe procedure utilized to exercise legislative powers.

If the Court finds a breach of the duty to be fair, the delegate’s actions (and thedecision) are void because the error is jurisdictional in nature (David Philip Jones, Q.C. & Anne S. de Villars, Q.C., Principles ofAdministrative Law, 6th ed. (Edmonton: Thomson Reuters, 2014 at 263). [18] According to the Principles of Administrative Law, at page 263, the scope and extent of procedural fairness will vary by thecircumstances and the subject matter of the case. On the facts before me, the Policy did not establish a code of conduct for theinvestigation.

There was no hearing, and the only reference to the Reviewer’s role was in

section 3 of the Policy and stated “Thereviewer may contact the person(

s) who filed the appeal to request additional information but is not required to do so”. [19] The two fundamental principles of natural justice are the right to be heard and the rule against bias. [20] The right to be heard includes the requirement that the person know the case against them and be given an opportunity toanswer it before the Decision is made. At pages 264-265, Jones and de Villars cite the Supreme Court of Canada decision Baker v.Canada (Minister of Citizenship & Immigration) (1999), (SCC), 14 Admin.

L.R. (3d) 173 (S.C.C.), for the factorswhich should be considered relevant to determining the content of the duty of fairness as follows: 1. The nature of the decision being made and the process followed in making it. The closer the administrative process is to judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required. 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. The role of the decision in thestatutory scheme helps determine the content of the duty of fairness.

Greater procedural protections are required when there is no appealprocedure or the decision determines the issue and further requests cannot be submitted. 3. The importance of the decision to the individual or individuals affected. The more important or the greater impact the decision has,the more stringent are the procedural protections. This is a significant factor. The court in Baker commented: The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the morestringent the procedural protections that will be mandated.

This was expressed, for example, by Dickson J. (as he then was) in Kane v.University of British Columbia (SCC), [1980] 1 S.C.R. 1105 (S.C.C.) at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake… . A disciplinarysuspension can have grave and permanent consequences upon a professional career. 4. The legitimate expectations of the person challenging the decision. The doctrine of legitimate expectations is part of the doctrine ofprocedural fairness.

If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires thisprocedure to be followed. If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairnessrequires this procedure to be followed. If a claimant has a legitimate expectation that a certain result will be reached, fairness mayrequire more extensive procedural rights than might otherwise be accorded. The doctrine of legitimate expectations does not createsubstantive rights outside the procedural domain.

The “circumstances” affecting procedural fairness take into account the promises orregular practices of administrative decision-makers. It will be generally unfair of the decision-makers to act contrary to theirrepresentations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights. 5. The choices of procedure made by the agency itself, particularly if procedure is a matter of discretion or if the agency possessesexpertise in determining appropriate procedures.

Important weight must be given to the choice of procedures made by the agency and itsinstitutional restraints.

This list of factors is not exhaustive. Generally, however, it is imperative that individuals who are affected by administrative decisionsbe given the opportunity to present their case in some fashion. They are entitled to have decisions affecting their rights, interests, orprivileges made using a fair, impartial, and open process which is appropriate to the statutory, institutional, and social context of thedecision being made. With those factors enunciated in Baker in mind, a court must determine whether the procedure that was used inreaching any given decision was, in fact, fair, impartial, and open.

This involves a detailed review of the circumstances of each case anda determination of whether the factors were applied properly. [21] There is no longer any doubt that the duty of procedural fairness applies to the investigative stage of an administrative lawprocess (Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653). [22] Nor does it make a difference that the Reviewer had jurisdiction only to make a recommendation and not the final decision.

Inthis case, the Reviewer’s recommendation would not be characterized as a decision of a preliminary nature. [23] Applying the factors identified in Baker, to the facts of this case:

a) the administrative process followed was not akin to judicialdecision-making;

b) there was no further appeal from the Minister’s Decision;

c) the recommendation (if accepted) would have asignificant effect on Laura Flynn’s rights;

d) there was a legitimate expectation of a fair process, and

e) the Reviewer had the discretionto determine the procedure he followed. [24] The most significant of these factors is the potential impact that the recommendation would have. There can be no argumentthat the right to vote on a person’s community relocation is fundamental to democratic principles.

Further, the financial consequences ofa recommendation in her favour would have entitled Laura Flynn to $250,000 as a single, permanent resident property owner incomparison to $10,000 if she did not qualify (compare sections 6.a. and 6.b. of the Policy). [25] Overall, I find these factors warrant a strong requirement for the duty of fairness during the investigative and recommendationphase. I conclude that natural justice in this instance would require full disclosure and an opportunity to respond as well as appropriatenotice of significant events within the investigative and recommendation stages.

Against these expectations, I shall now assess whetherthe process followed met the standard applicable. Full Disclosure [26] Full disclosure would have enabled Laura Flynn to know the case against her and have the opportunity to rebut evidenceprejudicial to her case as well as bring evidence to prove her position (Principles of Administrative Law, at page 274). [27] Paragraph 10 of the Originating Application filed by Mr. Fraize, on behalf of Laura Flynn, as well as Laura Flynn’s Affidavitsworn December 18, 2017, referenced the meeting with the Reviewer.

It is not disputed that this meeting took place in Laura Flynn’shome in William’s Harbour, that it was unscheduled and that Ms.

Flynn had received no legal advice before the meeting, nor did shehave a lawyer present during the meeting. [28] Unfortunately, in large part, what was discussed in the meeting is unknown because Laura Flynn did not provide details of herrecollection of the discussion in either of her Affidavits sworn on December 18, 2017 and January 26, 2018 and, as previously stated, ifthe Reviewer kept notes, they were not disclosed. [29] What is clear however is that any facts referenced by the Reviewer in his Decision on Appeal of Residency Status, and whichwere not established in Laura Flynn’s original Affidavit, Dr.

LeDrew’s medical report and the other documents comprising the Record(and predating the meeting) could only have stemmed from this meeting with Laura Flynn. [30] For example, at page 5 of his Decision, the Reviewer stated: Laura Flynn is 75 years of age and has lived in William’s Harbour for most of her adult lifetime. Her husband, Thomas, died in 1996. She has five sons, all of whom live out of William’s Harbour. She owns her own home in William’s Harbour, but now only lives thereduring the summer months because of her medical conditions and her inability to live alone for the entire year.

The affidavit filed by the Appellant states that she actually occupied her Williams Harbour home for only 152 days in 2011 and only 110days in 2012. During the other months each year, she resides mainly in one son’s home in Foxtrap, or occasionally in another son’shome in Mount Pearl.

The Appellant explains that during the colder months it is no longer possible for her to live alone in her William’s Habour home becauseshe cannot move easily up and down the stairwell to tend to her furnace in the basement of her home. [31] These details do not appear in any portion of the Record and can fairly be assumed to have been provided by Laura Flynnduring the meeting. Without his notes however, it is impossible to say if Ms.

Flynn gave the Reviewer other relevant information that hedid not reference in his Decision, including how often her son, Thompson Flynn, shared the home with her and thereby enabled her toreside in the community. [32] Procedural fairness required the Reviewer to give notice to Laura Flynn prior to the interview with the Reviewer. On anobjective standard, without notice, Laura Flynn could not be expected to participate effectively in the administrative process affecting herso profoundly (Principles of Administrative Law, at pages 271-272). I also find it likely that, had she received notice, Ms.

Flynn mayhave retained her own notes or asked someone to accompany her during the meeting given the consequences of her appeal. Failure togive notice of the meeting was a breach of procedural fairness.

[ 33 ] Further, the Record confirms that there were documents in possession of the Department which may have been provided to the Reviewer that could have affected the Reviewer’s recommendation but which were not given to Ms. Flynn.

Tabs 2-5 of the Record reflected correspondence from George Russell dated April 11, 2013, April 12, 2013, April 14, 2013 and April 27, 2013. [ 34 ] George Russell was identified on the letters as Chair of the Relocation Committee for the community of William’s Harbour and through this series of letters to the Minister of Municipal Affairs he took the position that Laura Flynn was one of nine individuals who maintained summer homes in William’s Harbour.

This position was prejudicial to Laura Flynn. [ 35 ] Counsel for Laura Flynn asserts that his client did not see these documents until the Department of Municipal Affairs responded to Laura Flynn’s information request in 2017. Therefore, he suggests that there was a breach of natural justice in failing to advise Ms. Flynn of the position being taken by the Chair and in failing to provide her with copies of these records that were contrary to her interests. [ 36 ] I agree that lack of disclosure to Ms. Flynn of the letters from George Russell impaired Ms. Flynn’s ability to present her Appeal.

There is no evidence to suggest that she was aware of the position being taken that her home was a summer residence. Had she known, a reasonable person would have put their best foot forward to address the suggestion which was contrary to their interest. This is a second example of a breach of procedural fairness. [ 37 ] The procedure followed cannot be characterized as fair, impartial and open. The effect of the two breaches of natural justice that I have identified, is that the Decision is void. [ 38 ] Notwithstanding my conclusion on procedural fairness, I will proceed to address the final issue.

Reasonableness of the Recommendation and the Decision [ 39 ] While it was incumbent upon Laura Flynn to establish both parts of the two-fold test for permanent residency, the Reviewer concluded that the Department had erred in concluding that Laura Flynn had established permanent residency status in Foxtrap. At page 7 of his Decision he concluded that “The Department has interpreted the Policy inappropriately by finding the Appellant to be a permanent resident of Foxtrap.” The Reviewer’s conclusion in this respect was reasonable. Ms.

Flynn had provided written confirmation from numerous third party records, that her residence was William’s Harbour, Labrador. There were no records to the contrary. Thus, Laura Flynn had established one of the two requirements of

section 1.d. of the Policy. [ 40 ] I turn now to the question of whether the Minister’s Decision that Laura Flynn had not met the 183 day residency requirement (required by

section 1.d.(

a) of the Policy) can be supported by the reasonableness standard of judicial review that this Court has previously determined applies ( Fudge v. Newfoundland and Labrador (Minister of Municipal Affairs) , 2013 NLTD(G) 14). The following comments from paragraphs 26 and 27 of Fudge are particularly germane: 26 The Relocation Policy provides financial assistance to those who qualify. It is not a program designed to reimburse all persons for all costs associated with relocation.

Individuals who have established permanent residency in another community, even while continuing to maintain and periodically occupy a home at Round Harbour, do not benefit from the Relocation Policy . The independent reviewer and the Minister, following investigation, formed the view that the Applicants had established a permanent residence in Harbour Round. The declared intention of the Applicants to move back to Round Harbour was not a factor.

As noted by the independent reviewer, a person's intentions on where he or she wishes or intends to reside in the future do not form any part of the Relocation Policy's criteria for residency. 27 On the determination of "Permanent Resident", I am satisfied that the Minister's decision is within the range of possible, acceptable outcomes. I find the Minister's decision to be justified, transparent and intelligible. The Minister's December 13, 2011 decision provides clear reasons on the issue of "permanent resident", and places reliance on the September 28, 2011 report from the independent reviewer.

The latter provides details of and background to the reasons in finding the Applicants to be non-residents pursuant to the Relocation Policy . [ 41 ] The standard of reasonableness determined in Fudge was subsequently applied in Kippenhuck v. Her Majesty the Queen , 2015 01G 3823 and Russell v. Her Majesty the Queen , 2015 01G 3818. [ 42 ] As previously stated, the Minister’s letter of March 5, 2015 stated only that he had accepted the recommendation that Ms. Flynn did not meet the criteria of a permanent resident of William’s Harbour and provided no reasons.

Thus, I can only rely on the Decision of the Reviewer for support for the Minister’s conclusion that Laura Flynn did not qualify. If the recommendation of the Reviewer is found to be unreasonable then it follows that the Decision made by the Minister to accept the recommendation, also fails on the standard of reasonableness. [ 43 ] As the Supreme Court explained in Dunsmuir v.

New Brunswick , 2008 SCC 9 , while deference is due to the Reviewer who has legitimately been endowed with broad powers in a valid attempt to discharge the administrative function delegated to him, all exercises of public authority (decision-making) have legal limits. The function of judicial review is to ensure the legality, reasonableness and fairness of the process and outcome. [ 44 ] I turn now to the specific conclusions that were made by the Reviewer in his recommendation to the Minister.

At page 7, following reference to the relevant portions of the Policy, the Reviewer concluded: While the Appellant would have at some time in the past clearly satisfied the status of permanent resident of William’s Harbour, the passage of time and her declining health have resulted in her now only being a seasonal resident of William’s Harbour. … [ 45 ] I find this conclusion to be contrary to the intent and meaning of the Policy.

Section 1.d.(

a) required proof of residency in the

community for at least 183 days in the two, twelve-month periods prior to the effective date. These periods would have been 2011-2012 and 2012-2013 fiscal years and not Laura Flynn’s status as at the date of the Decision which was on September 29, 2014. However, the Reviewer’s reference that Ms. Flynn’s circumstances “have resulted in her now only being a seasonal resident of William’s Harbour” (italics added) confirm that his focus was on her circumstances as of the date of his meeting with her. This was an error. [ 46 ] The second error I find in the

interpretation and implementation of the Policy is referenced at page 8 of the Decision. The Reviewer concluded “The Appellant is also not ‘temporarily’ absent for medical reasons. Her inability to live for long periods of time in William’s Harbour is not just a temporary feature of her life. This is not the circumstance anticipated by the medical exception in the Policy .” [ 47 ] This conclusion also runs contrary to the wording of the Policy.

Section 1.d.a(ii) gave an exemption to an individual “temporarily absent for medical reasons” as opposed to somebody who is “temporarily ill”. The conclusion that Laura Flynn’s medical condition was permanent, was irrelevant and constitutes an error in the application of the Policy. [ 48 ] Further, the Reviewer’s consideration of Ms. Flynn’s 2014 medical condition was an error because the exemption she was seeking was relative to occasions she was out of William’s Harbour between 2011 and 2013.

As noted in Fudge , paragraph 26, “a person’s intentions on where he or she wishes or intends to reside in the future (italics added) do not form any part of the Relocation Policy’s criteria for residency”. [ 49 ] The evidence before the Reviewer clearly supported the conclusion that Laura Flynn had resided in William’s Harbour for at least 183 days in each of the fiscal periods required. The Affidavit she provided to the Respondent referenced specific days in each of the months April 2011 to March 2012, totaling 152 and each of the months between April 2012 and April 2013, totaling 110.

Her subsequent Affidavit and the medical report of Dr. LeDrew supported her need to be outside of William’s Harbour in the colder months for medical reasons. The clear intent of

section 1.d.(a)(ii) of the Policy was that Laura Flynn was entitled to the benefit of having those days added to her 152 and 110 days of actual residency respectively. The Reviewer did not explain why the physician’s letter was not considered or why he could not add the winter months spent outside the community for medical reasons to the days spent in William’s Harbour. [ 50 ] Similar findings of a failure to properly apply the Policy were made by Faour, J. in Kippenhuck and Russell .

Therein, my colleague concluded that “periods spent out of the community for the purposes of education, medical reasons or employment reasons do not count as days absent from the community” under the Policy. [ 51 ] Aside from what I have already referenced, and unlike Goodridge, J.’s conclusion at paragraph 27 in Fudge , the Decision does not provide reasons for the conclusion that Laura Flynn failed to meet the 183 day requirement. [ 52 ] Counsel for the Appellant correctly references my decision in Petty Harbour-Maddox Cove (Town) v.

Eastern Regional Appeal Board , 2015 NLTD(G) 111, at paragraphs 60-61 for the requirement that (should I find that the reasons do not adequately support the Decision), I am required to seek the supplement deficient reasons wherever possible. I must therefore determine if there was evidence before the Reviewer that could have enabled him to reach the conclusion that he did in the absence of his own reasoning. [ 53 ] The relevant exemption in the Policy states “The individual was temporarily absent for medical reasons substantiated by a doctor’s note satisfactory to the Minister …”.

I have already referenced the supporting documents that Ms. Flynn provided in this regard. What else did the Reviewer have? It is possible that the Reviewer relied on the letters from George Russell which I referenced earlier.

If so, such reliance represented a breach of natural justice because the letters were prejudicial and there was no evidence that Laura Flynn was aware of the position taken, and therefore could not address it during her unscheduled meeting with the Reviewer. [ 54 ] Since the Reviewer was dealing with thirteen appeals at the one time, is it possible that there was evidence presented in another case that caused him to reach this conclusion?

As previously noted, in the Record that was subsequently disclosed to Laura Flynn, there appears a Decision Note from the Department of Municipal and Inter-Governmental Affairs dated January 19, 2014 (I accept this to be a typographical error and that it was prepared in January 2015).

The pages are unnumbered, but at page three in numbered case four, the author confirms that for two other unidentified individuals of William’s Harbour, the Reviewer had made a recommendation they be considered permanent residents because with the exception of a few days “they would have satisfied the required 183 days per year in the community” because they had “been unable to live in William’s Harbour during the winter months.

Therefore, he believes that due to medical reasons, an exception to the 183 day requirement is warranted”. [ 55 ] Rather than assisting me in supplementing his Decision, I find the conclusion in this unidentified case and the conclusion reached in relation to Laura Flynn to reflect an unauthorized and inconsistent approach to the

interpretation and implementation of the Policy. The exemption stated in

section 1.d.(a)(ii) of the Policy did not apply only to persons unable to meet the 183 day requirement by “a few days”. The Policy was clear; any temporary absence for medical reasons supported by a medical note was required to be added to the actual days of residency. If this unidentified person was entitled to the exemption, Ms. Flynn was entitled to the exemption. [ 56 ] The other evidence which could have been relied upon by the Reviewer, to support his conclusion, was “after the fact” information respecting Laura Flynn’s living arrangements in the period after March 2013. If this was considered, as I have already concluded, it was irrelevant to

section 1.d.(a)(ii) which required the Reviewer to consider only her circumstances between April 2011 to March 2013. [ 57 ] Referencing paragraph 27 of Fudge , I find a lack of justification, transparency and intelligibility in the recommendation that was made to the Minister respecting why Laura Flynn could not have the days absent for medical reasons added to her days present in the community in each of the two fiscal years in question.

I am unable to supplement the Decision with evidence that could have been relied upon without breaching Laura Flynn’s right to natural justice. [ 58 ] Instead, I conclude that the evidence as a whole reflects irrationality, arbitrariness, a failure to follow the statutory requirements and an inconsistent application of medical absences for different individuals appealing their status as permanent residents of William’s Harbour.

[ 59 ] For these reasons, I find that the recommendation of the Reviewer which was accepted by the Minister and ultimately became the Decision of the Minister, does not meet the standard of reasonableness and must be quashed. CONCLUSION [ 60 ] From Kippenhuck and Russell , I understand (and counsel for the Respondent confirms) that the result is that the matter is now remitted back to the Minister for reconsideration. [ 61 ] The Applicant shall be entitled to her costs to be taxed on column 3. _____________________________ Gillian D. Butler Justice