FRank Butt Appellant And: Town of Carbonear Respondent, 2018 NLSC 152

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Butt v. Town of Carbonear , 2018 NLSC 152 Date : July 12, 2018 Docket : 201701G8517 Between: FRank Butt Appellant And: Town of Carbonear Respondent Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 8-9, 2018

Summary: The Appellant is a former elected councillor and mayor of the Town of Carbonear. The municipal council of the Town removed the Appellant from his positions as councillor and mayor after finding a conflict of interest and declared his council seat vacant. The Appellant appealed. The Court found that the Council made a reversible error by finding that the Appellant was in a conflict of interest because the evidence did not establish that he had a monetary interest in the motion in question. The Court also found that the Appellant was denied procedural fairness because the Council placed on him the onus of establishing that he was not in a conflict of interest and because it considered

evidence that was not presented at the hearing into the matter. It was ordered that the Appellant be reinstated and that the Council pay his costs of the appeal. Appearances: John M. Babb, Q.C. Appearing on behalf of the Appellant Ian C. Wallace Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Fewer v. Town Council for Harbour Main-Chapel's Cove-Lakeview, 2007 NLTD 91; Neary v. Town Councilof the Town of Portugal Cove-St. Philips, 2012 NLTD(G) 146; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,2016 SCC 47 , 2016 S.C.C. 47; Dunsmuir v.

New Brunswick, 2008 SCC 9 , 2008 S.C.C. 9; Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 , 2011 S.C.C. 61; Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2018 SCC 31 , 2018 S.C.C. 31; Neary v. Portugal Cove-St. Philip’s (TownCouncil), 2013 NLCA 47; Newterm Ltd. v. St John's (City), (NL CA), [1988] 74 Nfld. & P.E.I.R. 328, 41 M.P.L.R.69; (Nfld. C.A.); Imperial Tobacco Co. v. Newfoundland and Labrador (Attorney General), 2007 NLTD 172; Hryniak v. Mauldin, 2014SCC 7 , [2014] 1 S.C.R. 87; Crane v.

Upper Island Cove (Town Council), (NL SC), [1999] 177 Nfld. &P.E.I.R. 8, 89 ACWS (3d) 383 (Nfld. S.C.); Gosse v. Conception Bay South, (NL SC), [1996] 146 Nfld. & P.E.I.R.192, 37 M.P.L.R (2d) 146 (Nfld. S.C.(T.D.)); Coombs v. Placentia (Town), 2018 NLSC 53; Payne v. Cow Head (Town), (NL SC), [2001] 207 Nfld. & P.E.I.R. 108, 112 ACWS (3d) 959 (Nfld. S.C.); Moreau-Bérubé v. New Brunswick (JudicialCouncil), 2002 SCC 11 , 2002 S.C.C. 11. STATUTES CONSIDERED: Municipalities Act, 1999, S.N.L. 1999, c. M-24; Municipal Elections Act, S.N.L. 2001, c. M-20.2;Interpretation Act, R.S.N.L. 1990 c. I-19; St.

John's Assessment Act, S.N. 1980, c. 39. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] The Appellant, Mr. Butt, is a former elected councillor and mayor of the Town of Carbonear (the “Town”). The TownCouncil of the Town (the “Council”) removed the Appellant from his positions as councillor and mayor after finding a conflict of interestand declared Mr. Butt’s council seat vacant.

These steps were taken pursuant to Resolution 17-308 passed on December 12, 2017 (the“2017 Resolution”) under section 206(2) of the Municipalities Act, 1999, S.N.L. 1999, c. M-24 (the “Act”). [2] The Appellant now appeals Council’s decision to declare his seat vacant. The appeal is brought pursuant to

section 410 of theAct. In considering the appeal I must determine whether the Council made a reversible error by finding that the Appellant was in aconflict of interest and by declaring his council seat vacant. I must also determine whether the Council provided the Appellantprocedural fairness in invoking section 206(2) of the Act. facts [3] The facts in this matter are for the most part not in dispute. The Appellant was elected to Council on September 24, 2013. TheAppellant’s Disclosure Statement dated December 13, 2013 indicated the Appellant owned properties at 225 and 240 Water Street,Carbonear.

The property at issue is the one located at 240 Water Street. From that location an Esso service station is operated. That thetitle to the property is held in a corporate entity owned all or in part by Mr. Butt makes no material difference to the issues before me.Consequently, in this decision, the subject property will be referred to variously as “Mr. Butt’s property”, “240 Water Street” and the“Esso station”.

[ 4 ] At the Regular Council Meeting held May 20, 2014, the Appellant moved Motion 14-432 (the “2014 Motion”) to demolish a vacant building at 234 Water Street, Carbonear. That building is known variously as the Easy Save building or the Surprise Bag building (in this decision references to it will be by those names as well as by its civic address, 234 Water Street).

The minutes of the May 20, 2014 meeting do not record that the Appellant declared he had a monetary interest in the 2014 Motion. [ 5 ] The Chief Administrative Officer of the Town (the “CAO”) received an undated, unsigned letter addressed “Dear Minister” on September 11, 2017 (the “Complaint”), requesting an investigation into whether the Appellant was in conflict of interest when he made the 2014 Motion.

The Complaint provided (in relevant part): I ask you as Minister to investigate … Whether Councillor Butt is in a conflict of interest as he purposely and intentionally made a motion in the May – June 2015 time frame to demolish the former Surprise Bag Building… Councillor Butt made the motion with the direct intent to benefit his own private property and business which borders on the Surprise Bag Property. He would benefit as his own property value would increase, monetary gain. [ 6 ] It was determined that the motion in question was made by Mr. Butt in 2014, not in 2015.

Therefore, the Complaint was received almost three and a half years after the 2014 Motion and just 15 days before the next municipal election, which was scheduled for September 26, 2017.

The CAO advised the Appellant of the Complaint and provided it to him for review within two or three days of receipt. [ 7 ] At the Privileged Council Meeting held September 18, 2017, attended by the Appellant, the CAO provided Council with copies of the Complaint and information on her inquiries and Council’s obligations; in particular she advised that: a. the Complaint was written to the Minister of Municipal Affairs and copied to Council; b. the Complaint was received at the Council office on September 11, 2017; c. the allegation of conflict of interest relates to the 2014 Motion made by the Appellant regarding demolition of the Building; d. she contacted the Department of Municipal Affairs to inquire if they received the Complaint and determine if Council needed to investigate an anonymous complaint; e.

Municipal Affairs advised the fact the Complaint is anonymous does not take away Council’s obligation to investigate; f. Municipal Affairs recommended Council consult its legal counsel; g. the Complaint was forwarded to the Respondent’s Counsel for an opinion; h. the Complaint alleges the Appellant made the 2014 Motion with the direct intent to benefit his own property and business which borders on the Property and that he would benefit as his own property value would increase; i.

Municipal Affairs advised Council should meet with the Appellant to allow him and/or his legal counsel to provide an explanation and/or additional information for Council’s consideration; j.

Council is to determine whether there was a conflict of interest in accordance with the Act ; k. the 2014 Minutes are now electronically accessible on the Town’s website; l. the 2014 Motion was made by the Appellant; and m. the 2014 Motion was defeated (three in favour and four opposed). [ 8 ] A new Council was elected on September 26, 2017; the Appellant, a councillor on and deputy mayor of the outgoing Council, was re-elected and elected as mayor.

The new Council was sworn into office on October 2, 2017. [ 9 ] By letter dated October 2, 2017, the Council’s counsel, William Finn, advised it on the requirements of the Act and case law relating to the procedure to be followed to determine if a conflict of interest exists. He also identified the issues to be determined by Council and advised on the authority of Council to determine the issue. [ 10 ] At the Privileged Council Meeting held October 5, 2017, attended by Mr.

Butt, the CAO provided the new Council with a copy of the Complaint and legal opinion dated October 2, 2017, and the information reported to the previous Council at the Privileged Council Meeting held September 18, 2017. [ 11 ] By letter dated October 10, 2017, Mr. Finn advised Council on the authority of the Court on an appeal under the Act . The CAO provided this letter to Council, including the Appellant, by email October 10, 2017. [ 12 ] At the Privileged Council Meeting held October 10, 2017, attended by the Appellant, the opinion of October 2, 2017 was reviewed with Mr.

Finn and legal advice was provided to Council. Deputy Mayor Christopher O’Grady (the “Deputy Mayor”) asked Mr. Butt if he wished to address Council on the matter. The Appellant advised, inter alia , that he did not feel he made a mistake or had any

monetary gain from the issue. Council discussed the matter further following departure of the Appellant and inquired if Mr. Finn could provide an opinion on whether a conflict of interest existed in this situation. Mr. Finn advised Council that it must decide if there was a conflict of interest. [ 13 ] At the Privileged Council Meeting held October 16, 2017, not attended by the Appellant, the CAO was directed to contact Mr. Finn and request an opinion specifically as to whether a conflict of interest existed in these circumstances. By letter dated October 19, 2017 Mr.

Finn provided an opinion to Council on whether the Appellant’s participation in the 2014 Motion contravened section 207(1) of the Act .

In that letter he opined, among other things: […] In the current situation I would submit, the fact that the value of Councillor Butt’s property may potentially be enhanced by the removal of a dilapidated building adjoining it’s [sic] boundary, absent any evidence to the contrary of which at this point I have no knowledge, is an inference that is readily capable of being drawn and in all probability would be so drawn by a court. […] With respect therefore to the matter I would conclude as follows: 1.

Councillor Butt spoke and voted on a matter before Council in which matter it is reasonable to infer/conclude he had a monetary interest directly or indirectly. 2. The monetary interest was not one which was excluded by the Act . 3 In the event that Council agrees with the above items 1 and 2 Council is obliged, under s. 206(2) (

b) of the Act , to declare by resolution the Councillor Butt’s office vacant. I do further emphasize, that procedural fairness must be accorded to Councillor Butt to enable him to address this matter, before Council makes any determination of this issue and effects any sanction which may flow from such determination. [ 14 ] The CAO consulted Municipal Affairs on October 26, 2017 and was provided with a document entitled Procedure for a Municipal Council to Declare a Councillor’s Seat Vacant (the “Guidelines”).

The Guidelines were provided to Council, including the Appellant, by email on October 27, 2017. [ 15 ] At the Privileged Council Meeting held November 1, 2017, not attended by the Appellant, the opinion dated October 19, 2017 from Mr. Finn was reviewed. [ 16 ] By letter dated November 8, 2017, the CAO provided the Appellant with a copy of the Complaint and the 2014 Motion; the letter further advised, inter alia : a. Council must determine if he was in violation of section 207(1) ; b. if such violation did occur, the response under

section 206; c. a Privileged Council Meeting would be held November 22, 2017 for the purpose of making a determination of the issues; d. he may attend the meeting to address the issues before Council and present any evidence and argument he, or any representative on his behalf, may wish to present on the issues for consideration by Council; and e. inform the Clerk if there is any additional information and/or material, which may be in Council’s possession, he deems necessary to prepare for the meeting and/or any presentation he wished to make. [ 17 ] By letter dated November 22, 2017, the Appellant’s Counsel, Mr.

Babb, advised, inter alia , that he required “prior full disclosure of all information, documentation pertaining to this matter” and that he questioned the “authority and jurisdiction of Council to proceed as contemplated, as the alleged offending conduct of Mr. Butt arose on May 5, 2014 [ sic ], while he was an elected Councillor under a previous term”. [ 18 ] The Appellant’s counsel’s extensive request for disclosure of documents is detailed in paragraphs 75 to 77 of the CAO’s Affidavit: 75.

THAT the documents and information requested by the Appellant’s Counsel in the letter dated November 22, 2017 included: (a) “a copy of all minutes of Council and Committee meetings”; (b) “email and notes by or between Councillors and/or the Chief Administrative Officer, the Town Clerk”;

(c) “correspondences, notes and/or representations made to Council”; (d) “opinions, directions and results of any investigation carried out and/or information gathered by and/or submitted to the Town and/or the Town’s personnel”; (e) “pertaining to this and/or matters related to the issues raised prior to and after May 5, 2014”; (f) “including the downtown development”; (g) “particularly pertaining to the condition and/or demolition and/or deteriorating condition”; (h) “issues pertaining to outstanding taxes, liens and/or encumbrances”; (i) “and generally any matter in which the Town was connected and/or concerned with and/or pertaining to the premises now or formerly known as the Surprise Bag Company and/or downtown development and/or issues pertaining to the former Easy Save Building”; (j) “a copy of correspondence, communication and/or representations, petitions and or telephone calls made to Council concerning the condition of the premises known as the Surprise Bag Company”; (k) “problems being experienced by businesses and/or individuals and/or concerned citizens and/or interests groups and indeed the Town on downtown development due to the condition and/or deterioration of the premises”; (l) “a copy of opinions, advisements of conflicts of interest and/or potential conflicts of interest, independent or otherwise of anyone connected in any manner with the matter”; (m) “including any matter directly and/or indirectly connected in any manner to the condition and/or effect on businesses and/or properties now and/or formerly known as the Surprise Bag Company, both prior to and after May 5, 2014”. 76.

THAT the Appellant’s Counsel further requested in the letter “… answers to the following questions and if necessary an opportunity to discover, ask further questions in writing and/or in person, of the individual(s), party(ies) concerned and/or have connections(

s) to this matter”: (a) “how this correspondence was received and by whom ”; (b) “… the procedure for processing the mail”; (c) “… whether when such correspondence is received there is a verification procedure”; (d) “What efforts have been undertaken to ascertain the author of the subject correspondence”;

(e) “If no action has been taken, why not”; (f) “Have there been other anonymous letters received by Council regarding conflict of interest and/or other matter(

s) and not acted upon”; (g) “… provide particulars of these correspondences, why Council did not give them any consideration and/or the basis for the decision to not proceed”; (h) “Have there been potential conflicts of interest by Councillors on which Council decided to not proceed”; (i) “Why has this particular anonymous letter been given consideration by Council”; (j) “What individual(

s) or parties and/or known personnel were involved initially and who has made the advancement of such a letter incumbent of Council as stated in your correspondence of November 8, 2017”; (k) “Who made the decision to advance the matter and allegation of conflict of interest with proceedings as contemplated”; (l) “On what basis factual or otherwise was the decision made to institute conflict of interest proceedings”; (m) “… what other investigations have you conducted as to other assertions contained in the anonymous correspondence that would be in possession of or readily available to Council through public records, etc.”; (n) “If no other investigation or fact gathering has taken place, explain why it has not”; (o) “What is the Town’s position on the procedural fairness and principles of natural justice of Mr.

Butt’s ability to defend allegations, whom the author of which does not accept any responsibility”; (

p) Is it the policy of the Town to become involved in such matters with potential exposure of liability”; (q) “… provide reasons for the Town’s involvement with the current correspondence”; (r) “… if it is incumbent on Council to address the matter in the first place, we question and ask as to why this correspondence was not addressed by the elected existing Council prior to the Municipal Election held on September 24, 2017”; (s) “… why council has now deemed it incumbent to pursue this matter long after the issue arose and in the manner they have, particularly given the inherent timelines and election provisions of the applicable legislation”. 77.

THAT the documents and information requested by the Appellant’s Counsel in the letter dated December 6, 2017 included: (a) “Notes, submissions of Councillors, service providers, professionals, government officials, legal, professional and/or otherwise, press releases, internal and external memos, e-mails, communications pertaining to the issue pertaining to the premises known as The Surprise Bag Company Inc. formerly Easy Save building …”;

(b) “Consultations and opinions pertaining to the potential effect, if any, or the demolition or development and/or non- development, of the premises known as The Surprise Bag Company Inc. or Former Easy Save building …”; (c) “Disclosure of previous and subsequent motions referenced in the Minutes and/or related to Council's dealing with the condition of subject premises, containing alleged conduct constituting a Conflict of Interest, and/or related to the condition of the notes taken, referenced correspondences, reports, opinions, legal or otherwise, notes of conversations pertaining to the premises, known as The Surprise Bag Company Inc., former Easy Save building and/or its owners Cal-Andrea Equity Corporation, Dominion Investments, and Stone Jug Inc. and/or any other business(es) adjoining or immediately neighbouring the premises in question or premises affected thereby …”. [ 19 ] At the Privileged Council Meeting held November 22, 2017, attended by the Appellant and his counsel, the Deputy Mayor advised, inter alia , that the Appellant had been provided with details of the alleged conflict of interest and notice of the hearing and that the hearing was to provide the Appellant and his counsel an opportunity to address the issues before Council and present any evidence and argument for consideration by Council in making its determination. [ 20 ] At the meeting on November 22, 2017, Mr.

Babb was provided with certain information in response to his letter. He also made submissions to Council. These are as set out at paragraphs 53 and 54 of the CAO’s Affidavit: 53. THAT the Appellant’s Counsel was advised: (

a) the date of receipt of the Complaint was September 11, 2017; (

b) the date of the meeting where the Motion was made was May 20, 2014; (

c) the Minutes of the meeting of May 20, 2014 would be provided; (

d) Municipal Affairs confirmed the Minister received the Complaint; (

e) Municipal Affairs advised Council to seek legal advice; (

f) Council does not have a written policy on dealing with unsigned complaints; (

g) the Appellant also owns property on the other side of Water Street. 54. THAT the Appellant’s Counsel submitted: (

a) the Appellant was entitled to natural justice; (

b) the Complaint should have been addressed by the prior Council; (

c) Council should not have entertained an undated, unsigned letter alleging conflict of interest; (

d) if Council is not willing to dismiss the Complaint, more information is required;

(

e) the timing of the letter was suspect; (

f) if the Appellant is removed from Council, he cannot seek re-election for two years; (

g) the validity of the election is in issue as the allegation was not addressed prior to September 26, 2017; (

h) Council should carefully consider the ramifications of its decision; (

i) Council is legitimizing defamation of the Appellant’s character by consideration of the Complaint; (

j) the Appellant’s property does not border on the Property; (

k) Council must consider if demolition of the derelict building was a benefit to the Appellant or to the entire Town. [ 21 ] The Deputy Mayor confirmed that the Appellant was advised on September 11, 2017 of the Complaint, and that all further correspondence and legal opinions had been provided to the Appellant. [ 22 ] At the meeting of November 22, 2017, the Appellant’s counsel advised that he reserved the right to make further submissions following receipt of the additional information requested.

The Deputy Mayor advised that Council would determine what further information could be provided and advised of the proposed date for a second privileged meeting for the hearing on the matter. [ 23 ] By email sent November 23, 2017, the CAO advised the Appellant that Council had set December 6, 2017 for another hearing.

By letter of the same date, the CAO provided the Appellant’s counsel with a copy of the Minutes of the Regular Council Meeting of May 20, 2014 and advised, inter alia , that the information provided should be all that is required to address the allegation of a conflict of interest and that December 6, 2017 was set for another hearing between the Appellant and Council. [ 24 ] By letter dated November 30, 2017, the Appellant’s counsel advised, inter alia , that he required information and answers to the questions submitted on November 22, 2017, the next date was for the purpose of setting a hearing date if necessary, and the requested information and answers were required prior to any hearing. [ 25 ] By letter dated December 6, 2017, the Appellant’s counsel, inter alia , reiterated his request for disclosure of documents and information as set out in his letter dated November 22, 2017, and made various assertions as set out at paragraph 63 of the CAO’s Affidavit: 63.

THAT by letter dated December 6, 2017 the Appellant’s Counsel acknowledged receipt of the letter dated November 23, 2017, Minutes dated May 2, 2014 [sic], legal opinions dated October 2 and 19, 2017, and Guidelines from Municipal Affairs, reiterated his request for disclosure of documents and information as set out in his letter dated November 22, 2017, and asserted: (

a) the information in s. 215 of the Act is required to be made available to the Appellant; (

b) the Appellant was attempting to address serious allegations of conflict of interest which arose prior to his initial election to Council; (

c) he understood Council had a file on the Property with documents; (

d) Council’s position on disclosure was a “speculative, presumptuous and an unwarranted violation of my client's procedural and civic rights to a fair hearing”; (

e) these rights were “independent, natural and unqualified rights which finds its essential jurisdiction in the sense of procedural and/or natural Justice and/or the Charter of Rights and Freedoms …”; (

f) the Appellant “under advice of independent legal counsel, is in the best position to make such decisions regarding such a

right protected by the Courts …”; (

g) the Appellant “should be protected by Council acting as an adjudicative tribunal”; (

h) the requested disclosure is required “to fully address the issues of conflict of interest and/or potential conflict of interest of other councillors, personnel, legal advice and/or other advice to the Town pertaining especially to the demolition of The Surprise Bag Company Inc. building and/or former Easy Save building…”; (

i) the allegation relates to an old Motion that was defeated and requires the Appellant “to defend himself well after the fact as to the circumstances and events surrounding the issues pertaining to the aforesaid premises …”; (

j) the “lapse of time, frailties of human recollection, availability and/or unavailability of evidence and witnesses prejudices [the Appellant’s] ability to present evidence documents, call witnesses, and disclosure will enable him to at least attempt to properly place the matter before Council sitting as a Tribunal”. [ 26 ] There were no minutes taken at the Privileged Council Meeting held December 6, 2017, but a transcript was prepared and filed with the Court. That meeting was attended by the Appellant and his counsel. Among the matters addressed at that meeting were: a.

Requests by the Appellant’s counsel for documents and information from the Council similar to those made at the meeting held November 22, 2017; b. The Appellant and the Appellant’s Counsel declined to respond to the allegation that the Appellant had a conflict of interest when he made the 2014 Motion; and c.

The Deputy Mayor advised the Appellant and his counsel: i. the purpose of the meeting was to have Council determine if the Appellant had a conflict of interest when he made the 2014 Motion; ii. the information and documents requested by the Appellant’s Counsel were not relevant to determine the issue; iii. the meeting provided the Appellant with opportunity to respond to Council on the allegation of conflict of interest; and iv.

Council may wish to ask the Appellant questions to determine if he was in conflict when he made the 2014 Motion. [ 27 ] The meeting on December 6, 2017 ended without any evidence being adduced to prove the alleged conflict of interest and without the Appellant or his counsel addressing Council on the merits of the Complaint. [ 28 ] Following the December 6, 2017 meeting, in considering in private whether the Appellant acted in conflict of interest when he moved the 2014 Motion, Council reviewed evidence that was not presented during the December 6 meeting.

In particular, Council reviewed a survey plan that was not reviewed at the December 6 meeting and which had not been provided to Mr. Butt as part of Council’s disclosure. [ 29 ] At the Regular Council Meeting held December 12, 2017, following the departure of the Appellant, the Deputy Mayor reviewed Council’s actions subsequent to the Complaint and received a motion regarding the allegation of conflict of interest. The 2017 Resolution declaring the Appellant’s seat vacant pursuant to section 206(2) (

b) of the Act was unanimously approved. [ 30 ] By letter dated December 15, 2017, Council advised the Appellant that his position as councillor was vacated pursuant to the resolution that was carried at the Regular Council Meeting held on December 12, 2017. THE EXPERT EVIDENCE [ 31 ] At the hearing before me, Mr. Butt adduced evidence by two expert witnesses: surveyor Wayne Parsons and appraiser Neil Hardy. The surveyor [ 32 ] The affidavit and accompanying survey plans of Mr. Parsons show that the Esso property does not actually bound the Surprise Bag property.

There is a small strip of land between the two properties. According to the evidence, such a strip is often withheld by a property seller to ensure that if neighbouring properties are to be assembled for a larger development the proponents will have to come back to the initial seller to acquire the strip, known as a “ransom strip”, in order to complete the larger parcel of property. Mr. Parsons did, however, confirm that the two properties are located within close proximity of each other by virtue of their corners almost touching. The appraiser [ 33 ] In his written material provided to the Court, Mr.

Hardy opined that on May 20, 2014, the date of the impugned motion, the demolition of the Surprise Bag building would have virtually no effect on the value of the Esso property. This was, he said, because the

Esso property is a commercial property and its value is determined by its capacity to generate income. In rendering his opinion Mr. Hardy considered such matters as neighbourhood character, drawing power, visibility from Water Street, enhanced parking, and security and insurability. He concluded that there are no reasons to assume that there would have been any value betterment to the Esso property from a potential demolition of the Surprise Bag building. [ 34 ] Mr. Hardy was extensively cross-examined by counsel for the Council. Mr.

Hardy acknowledged that the demolition of the Surprise Bag building provides a slightly enhanced angle of view of the Esso property from Water Street, giving a greater view of the parking lot of the plaza on which it is located. Mr. Hardy remained firm in his opinion, however, that there was no significant improvement of the sight-line to the building or gas pumps of the Esso building. Furthermore, he added, if a new building were to be built on the site of the demolished Surprise Bag building, then even this marginal improvement in visibility would once again be lost. Nor did Mr.

Hardy agree that the dilapidated state of the Surprise Bag building and the possibility that it might be infested with vermin would mean that the value of Mr. Butt’s property would be enhanced by its removal. Mr. Hardy confirmed his opinion that there would be no betterment at all to the value of Mr. Butt’s building as a result of the demolition of the Surprise Bag building. issues [ 35 ] The appeal raises the following issues for determination by me: a. Is the decision of the Council that the Appellant was in a conflict of interest and declaring his council seat vacant sustainable on appeal? and b.

Was the Appellant denied procedural fairness by the Council? LEGISLATIVE PROVISIONS Removal of a councillor [ 36 ] The Act , by section 206(2) , requires removal of a councillor who has failed to disclose, or discussed or voted on a matter engaging a conflict of interest: 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. [ 37 ] The direction provided to Council by section 206(2) is mandatory. [ 38 ] The office of a councillor becomes vacant once the resolution to remove is approved by a council under section 206(1)(i). Furthermore, by section 206(4) a councillor “shall not sit or act as a councillor after his or her office becomes vacant”. [ 39 ] Section 15(3) (

b) of the Municipal Elections Act , S.N.L. 2001, c. M-20.2 is also important in the context of this appeal:

(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. Johns 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. [ 40 ] That is, by the combined effects of section 206(2) of the Act and section 15(3) (

b) of the Municipal Elections Act , not only does a councillor who is found to have been in a disqualifying conflict of interest lose his seat on a municipal council, he is also disqualified from seeking reelection for two years. Determining conflict of interest [ 41 ] A conflict of interest may result if a councillor, a relative, or an associated entity, has a “monetary interest” in a matter before a council under section 207(1):

(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. [ 42 ] It is by virtue of sections 207(1) (

b) and (

d) that it matters not whether the monetary interest is held by the councillor or by a corporation of which the councillor is an officer, employee or agent. It was not disputed by Mr. Butt that if the corporation that owns the Esso property had a monetary interest in the demolition of the Surprise Bag building then his circumstances would fall within

section 207 of the Act . [ 43 ] By section 207(4), the interest must be particular to the councillor or the corporation:

(4) In order for an interest to be considered as one falling within the prohibition set out in subsection (1) it shall be an interest distinct from an interest held in common with the other citizens or classes of citizens of the municipality. [ 44 ] The Act does not otherwise define “conflict of interest”. [ 45 ] The Act at

section 2 (

o) defines “monetary interest” as: (o) "monetary interest" means an interest or benefit (

i) consisting of money, exacted in money, relating to money or of which money is the object, (ii) capable of being measured by its financial value, cost, benefit, advantage or disadvantage, or (iii) affecting or potentially affecting a person's financial position or worth, his or her assets or asset value but does not include remuneration or a benefit to which a councillor is entitled under this Act ; […] Disclosure of an actual conflict of interest [ 46 ] By section 208(1), the Act requires timely disclosure by a councillor of the existence and nature of any conflict of interest:

(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. [ 47 ] The direction to record the conflict of interest in the minutes is mandatory. Disclosure of a possible conflict of interest [ 48 ] By section 209(1), the Act requires disclosure by a councillor of a possible conflict of interest:

(1) Where a councillor is in doubt as to whether or not he or she has a monetary interest that is a conflict of interest under

section 207 , he or she shall make a disclosure and the council may decide the question by majority vote and its decision on the matter is final.

[ 49 ] The determination by a council pursuant to section 209(1) is “final” and is not subject to appeal under

section 410 of the Act . A finding of a conflict of interest pursuant to section 209(1) does not lead to a councillor’s seat being declared vacant, however. I assume that it is for this reason that an aggrieved councillor seeking review of a decision made by a council under section 209(1) must do so by judicial review.

The right of appeal [ 50 ] The Notice of Appeal was filed pursuant to section 410(1) of the Act : 410(1) A councillor whose seat has been … 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. [ 51 ] This Court is to “hear the appeal and the evidence brought forward by the appellant and the council in a

summary manner” pursuant to section 410(6) of the Act . Following the hearing, I 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. [ 52 ] Section 410(7) of the Act provides that I may “make an order as to costs, either for or against the appellant or the council, and may fix the amount of costs”. [ 53 ] The clerk filed with the Court a copy of all papers and documents relevant to the appeal as required by section 410(5) of the Act on January 24, 2018.

The papers and documents attached to the Clerk’s affidavit are all the papers and documents sworn by her to be in the possession of Council relevant to the appeal. [ 54 ] The hearing of the appeal was set for March 8, 2018. The Appellant filed his brief and other materials late in the day on March 6, 2018, which was well outside the 30 days from his receipt of the record on January 24, 2018, as required by Rule 58.1 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D.

I note this because the materials filed are extensive and include: a 30 page brief together with voluminous authorities; a 35 page affidavit sworn by the Appellant which includes extensive exhibits; and the affidavits sworn by Mr. Parsons and Mr. Hardy, each expressing expert opinion evidence on the matters in question. [ 55 ] The materials filed on behalf of the Appellant were received effectively one day before the two-day hearing scheduled for this matter.

For this reason, I offered counsel for the Council the opportunity to seek a postponement of the hearing so that the materials filed by the Appellant could be reviewed and so that the Council could decide whether to adduce any evidence to counter that adduced by the Appellant. Counsel for the Council declined the invitation and the matter proceeded as scheduled. role of this court on an appeal [ 56 ] By

section 410 of the Act , a councillor whose seat has been declared vacant is entitled to have the decision of the council reviewed by this Court. How and by what standard should I conduct the review? One review or two? [ 57 ] It may be argued that

section 410 provides only for a review of the declaration of a vacancy and that a reconsideration of the finding of a conflict of interest would require an application for judicial review (see the discussion of this point by Orsborn, J. in Fewer v. Town Council for Harbour Main-Chapel's Cove-Lakeview , 2007 NLTD 91 ). This could give rise to a different standard of review for each component of the review.

I am satisfied, however, for the reasons that I will shortly explain, that the development of the case law since 2007 means that the matter can be resolved without resorting to two different avenues of review. [ 58 ] As we will see, once a municipal council has found that a councillor has acted in conflict of interest pursuant to section 207(1) , it has no discretion to do otherwise than to declare the council seat vacant pursuant to section 206(2). That is not the case in every Canadian jurisdiction. Paquette, J., when she decided Neary on appeal before this Court ( Neary v.

Town Council of the Town of Portugal Cove-St. Philips , 2012 NLTD(G) 146), at paragraph 91 referred to more forgiving conflict of interest legislation elsewhere in the country: [91] A cursory review of the conflict of interest provisions of other provincial jurisdictions reveals a direct recourse to the Court where conflict of interest is alleged against a councillor. In these jurisdictions, it is the Court, not council members which makes such a finding in the first instance.

Pursuant to these legislative regimes, the penalty of vacating one’s council seat may be averted through the defence of “mere inadvertence” [ ss.90.9(2) (

b) Municipalities Act , RSNB 1973, c-M-22 ]; “inadvertence or a bona fide error in judgment” [ ss.10(1) Municipal Conflict of Interest Act RSNS 1989, c299 ]; “inadvertence or honest mistake ” [s. 149 Municipalities Act c. M-36.1] and “inadvertence or by reason of an error in judgment” [ ss.10(2) Municipal Conflict of Interest Act R.S.O. 1990, c. M.50 . [ 59 ] Nevertheless, in this jurisdiction, the potentially harsh consequences of sections 207(1) and 206(2) cannot be avoided, either by a municipal council or by the Court on an appeal. To this end, therefore, the Council, once it made the determination that Mr.

Butt was in a conflict of interest pursuant to section 207(1) , had no jurisdiction to take any course other than to declare his seat vacant.

[60] The right of appeal pursuant to

section 410 is granted only to the councillor whose seat has been declared vacant. But it is of nobenefit to him to have an appeal where the Court merely concludes that the council correctly declared the seat vacant in the absence ofexamining whether there was a disqualifying conflict of interest in the first place. [61] As we have seen, a decision by a council pursuant to section 206(2) is different than a decision by a council pursuant to section209(1). Section 209(1) deals with the circumstance where a councillor is in doubt as to whether he or she is in a conflict of interest undersection 207.

In such a circumstance, rather than risk offending the conflict of interest rules, the possible conflict can be disclosed and thecouncil will decide whether or not it constitutes a conflict. Section 209(1) provides: 209.

(1) Where a councillor is in doubt as to whether or not he or she has a monetary interest that is a conflict of interest under section207, he or she shall make a disclosure and the council may decide the question by majority vote and its decision on the matter is final. [62] Section 209(1) contains a privative clause – the decision of a council is stated to be final. Since there is no requirement that avacancy be declared it is not subject to appeal pursuant to the Act. The councillor may choose not to vote on the matter at issue but maywish to challenge the Council’s decision.

Therefore, the determination by the municipal council would be subject to judicial review ofthe sort contemplated by Orsborn, J. in Fewer. This means that a councillor who is faced with an adverse section 209(2) decision is in avery different position than one facing a section 206(2) decision. The latter is expressly entitled to a right of appeal; the former is not. [63] In my view, if it was intended by the legislature that the finding of a conflict of interest leading to a section 206(2) declarationof vacancy was not to be part of the

section 410 appeal, then it would not have provided that the judge hearing the appeal can considerfresh evidence as is contemplated by section 410(6). The council record would be sufficient for a judge to confirm that a conflict ofinterest had been found by the council and that the council seat was declared vacant. [64] Giving

section 410 a broad and purposeful

interpretation pursuant to

section 16 of the

Interpretation Act, R.S.N.L. 1990 c. I-19,I conclude that the evidentiary and remedy components of

section 410 were designed to permit the Court to examine the basis uponwhich the conflict of interest was found and which, in turn, inevitably led to the seat being declared vacant. Consequently, I am toexamine both the finding by Council that Mr. Butt was in a conflict of interest when he moved the 2014 Motion and also Council’sdetermination that his seat should be declared vacant. What is the standard of review? [65] In Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 , 2016 S.C.C. 47, at paragraph22, the Supreme Court of Canada reaffirmed that when the issue of review involves the

interpretation by an administrative body of itsown statute closely connected to its function, the standard of review is presumed to be reasonableness unless the issue falls within one ofthe four categories of exception identified in Dunsmuir v. New Brunswick, 2008 SCC 9 , 2008 S.C.C. 9.

Only in such cases isthe presumption of reasonableness rebutted and the standard of review is correctness. [66] The standard of review of a tribunal’s decision was also discussed in Alberta (Information and Privacy Commissioner) v.Alberta Teachers’ Association, 2011 SCC 61 , 2011 S.C.C. 61, where Rothstein, J., for the majority, wrote: [34] … [U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the

interpretation by the tribunalof “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be aquestion of statutory

interpretation subject to deference on judicial review. [67] These views by the Supreme Court of Canada have been recently affirmed once again by the reasons of Gascon, J. for themajority of that court in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 , 2018S.C.C. 31. There, he held that not only is reasonableness the presumptive standard of review but that recourse to a contextual analysiswill seldom be necessary.

And, furthermore, even when resort must be had to a contextual analysis to determine the intention of alegislature regarding the appropriate standard of review, that analysis can generally be brief. [68] The strong message from the Supreme Court of Canada, therefore, is that it is open to Parliament and the provincial legislaturesto set standards of review for judicial reviews and appeals from administrative bodies (within constitutional limits) but, in the absence ofsuch legislation, the courts are to defer to those administrative bodies unless the issue falls under one of the enumerated exceptions setout in Dunsmuir. [69] How do the principles identified by the Supreme Court apply to this case?

Here, as we have seen, the Act provides: 410.

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

g) or (

h) or declared vacant undersubsection 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 onwhich 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 asum, 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. [70] As we have seen, this is to be contrasted with a decision of a council pursuant to

section 209 from which there is no statutoryright of appeal and redress must be sought through judicial review. Such a judicial review would be subject to the presumptivereasonableness review analysis - based upon the principles of Dunsmuir. [71] The appeal in this case is considered to be de novo (Neary v. Portugal Cove-St. Philip’s, 2013 NLCA 47). That does not mean,however, that the onus on the appeal to the Court is upon the Council (Newterm Ltd. v. St John's (City), (NL CA),[1988] 74 Nfld. & P.E.I.R. 328, 41 M.P.L.R. 69 (Nfld. C.A.)).

It simply means that this is one of those exceptional cases where theCourt need not be deferential to the original decision-making body. That is, the presumption of a reasonableness standard of review isrebutted by the statutory language. [72] In Fewer, at paragraphs 32 and 33, Orsborn, J. identified that the counsel advocating before him considered that the appealshould proceed by way of a hearing de novo and that the provisions of

section 410 do not contemplate any degree of deference by theCourt to the decision of the municipal council. Notwithstanding this, Orsborn, J. ultimately decided that whether the hearing isconsidered a trial de novo, judicial review, or some combination of the two, he was satisfied in that case that the necessary pre-conditionshad been established for Mr. Fewer’s removal from office.

As to the role of the Court on a de novo hearing, Orsborn, J. said at paragraph41: Since this appeal is being treated as a de novo hearing, the question of the proof of the existence of a monetary interest is one for theCourt; it is not a matter of reviewing Council’s decision. [73] In Neary at the Court of Appeal, Rowe, J.A. (as he then was) noted that the matter proceeded as a trial de novo before the courtbelow without commenting on what that meant from a procedural perspective or what deference, if any, this Court is to grant to themunicipal council. [74] In Imperial Tobacco Co. v.

Newfoundland and Labrador (Attorney General), 2007 NLTD 172, Green, C.J.T.D. (as he thenwas) considered the standard of appeal on a hearing de novo. The case involved access to information and as such it did not involve thekind of determination of rights that is present in this case.

Nevertheless, the Court there found that notwithstanding the statutory directionfor the appeal court to decide the matter “anew” and “on its merits”, it was still necessary for the appeal court to consider the standard ofreview and the degree of deference to be afforded to the decision of the administrative body. [75] Green, C.J.T.D. concluded that no deference was to be shown and that the matter was to be decided based upon a correctnessstandard.

He stated at paragraphs 21 to 26 as follows: [21] The Act provides for an appeal to this Court from a decision denying access to a requested document in the following terms: 12(1) A person, including a 3rd party, may within 30 days of receiving the decision of the head appeal that decision to the Trial Division. 12(2) The Trial Division shall determine the matter anew and may examine information in private in order to determine on the meritswhether that information may be withheld under this Act. [22] In disposing of an appeal, this Court is required to consider the matter "anew" and to determine the matter "on the merits".Nevertheless, a court, whether exercising judicial review powers or a statutory appellate jurisdiction, must always consider the degree ofdeference that should be accorded to the determination of the original statutory decision-maker, and apply a standard of reviewappropriate to that level of deference.

See Dr. Q.,Re, 2003 SCC 19 , [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295W.A.C. 170; 2003 SCC 19, and Ryan v. Law Society of New Brunswick, 2003 SCC 20 , [2003] 1 S.C.R. 247; 302 N.R. 1; 257N.B.R.(2d) 207; 674 A.P.R. 207. [23] The reference to deciding the matter "anew" in s. 12 is, in general, a strong indicator that little or no deference should beaccorded the original decision. The word "anew", when used in a statute, is the equivalent of the more traditional terminology, "denovo". See

Interpretation Act R.S.N.L. c.I-19, s. 27(2), #8. The case law nevertheless indicates that this terminology does not necessarilymean that there can or should be a full evidentiary re-hearing as if the matter were being decided the first time. See Newterm Ltd. v. St.John's (City) (1988), (NL CA), 74 Nfld. & P.E.I.R. 328; 231 A.P.R. 328 (Nfld. C.A.) and Newterm Ltd. v. St. John's(City) (1991), (NL SC), 93 Nfld. & P.E.I.R. 49; 292 A.P.R. 49 (Nfld. T.D.).

[24] The inclusion of the additional requirement in ss. 12(2) that the judge determine the matter "on the merits" is, however, an additional signpost that little or no deference is supposed to be shown to the original decision. The same indication can be found in the scheme of the legislation. The original decision-maker as to whether an exception to the general principle favouring disclosure applies, is the Minister, a government official.

The Act is designed to ensure that Ministers and governmental officials do not - except where the public interest or third party privacy interests require - operate behind closed doors under a veil of secrecy. In making a decision not to disclose, the Minister is therefore not an independent decision-maker, such as a separately-appointed commission, tribunal or agency. There is likely a self-interest factor that could, or could appear to, affect this decision.

To accord too much deference to the Minister's initial decision, therefore, would run counter to the policy of the legislation. [25] As well, the issue under consideration - whether the documents in question are governed by solicitor/client privilege within the meaning of s. 11 (d) - is one in which the Minister (who need not necessarily be a lawyer) would have no specialized expertise in determining (though he would, no doubt seek and consider legal advice).

In fact, the issue is essentially a legal one, of the type that a court is most qualified to determine. [26] I conclude, therefore, that, at least with respect to the issue engaged in this case, the standard of appellate review is one of correctness. I will review the record in the light of the arguments presented and make my own determination as to whether the Minister has properly invoked s. 11 (

d) as a justification for non-disclosure of the requested documents. [ 76 ] The provisions of the St. John's Assessment Act, S.N. 1980, c. 39, at issue in Newterm (1988) , referred to at paragraph 23 of Imperial Tobacco , were described by the Court of Appeal as follows: [3]

Section 89 requires that hearings into an appeal to the Trial Division shall be an inquiry de novo. [4] It provides: The Trial Division of the Supreme Court of Newfoundland shall enquire into the matter de novo and examine such witnesses and take all such proceedings as are necessary for a full investigation of the matter. […] [6] The appeal judge found that a new hearing was intended at which witnesses could be called and evidence adduced by both sides.

He further found that the Act contemplated that the Trial Division on appeal would consider the reasons and findings appearing in the decision of the Review Court.

He then stated: The conduct of the hearing and the nature and scope of the appeal to the Supreme Court may be ill-defined, but the scheme and spirit of the appeal process in the Act are very evident: to permit a reconsideration of the assessment of the property; another opportunity for the aggrieved party to be heard, to call witnesses, to cross-examine opposing witnesses and make submissions on both fact and law relevant to the assessment. [7] The judge, however, made it clear that the de novo hearing would not be a second opportunity for the City to fix or introduce a completely new assessment and that what was intended was a hearing or review of the assessment as entered on the assessment roll, and as "confirmed, reduced, increased or otherwise altered by the Review Court. [ 77 ] Based upon Imperial Tobacco and Newterm , therefore, it would seem that the standard of review on an appeal de novo is correctness.

But those cases were decided long before Edmonton East , Alberta Teachers and CHRC . [ 78 ] Before I turn to the effect of the most recent guidance provided by the Supreme Court of Canada, there is another possible approach to the matter. Where the Court is not restricted to deciding the matter based upon the existing record and can hear new evidence and then substitute its decision for that of the administrative body, it may be concluded that the “appeal” is not a review of the lower decision at all but is a new proceeding involving an independent decision of the Court.

That is the position articulated by Orsborn, J. in Fewer . That approach would lead to the conclusion, based upon the appeal language of

section 410, that the legislature intended there to be no review of the decision by the council as such.

Section 410 does not refer to the Court upholding or overturning a decision of a municipal council but speaks of the Court upholding the vacancy or reinstating the councillor. In addition, the Court may make another decision considered to be appropriate in the circumstances. That is, the result of the decision by the municipal council is at issue before this Court, not the decision itself. The Court is given the authority to fashion its own remedy. Therefore, although the record below, including the decision of the council, may inform the disposition on appeal it does not determine it.

Consequently, this Court, as the appeal court, may decide the matter anew based upon the usual balance of probabilities but, of course, with the onus on the appellant

as indicated in Newterm (1988). [79] Such a result is informed by at least four factors. First,

section 410 grants a right of appeal to the councillor only; thecomplainant has no such right. Second, the serious consequences that flow from a section 206(2) declaration dictate a high standard ofdecision making; losing a democratically obtained seat on a municipal council and being denied the opportunity to run for such office fortwo years are close to capital punishment in the world of municipal politics. Third, the Court may hear evidence; that is, the Court willbe in as good or better a position as the council to consider the matter.

And, fourth, the Court is not directed to uphold or overturn thedecision of the municipal council; it is empowered to uphold the vacancy, reinstate the councillor or make another appropriate decision -this implies independent decision making by the Court. [80] Consequently, it can be argued that the nature of an appeal under

section 410 of a decision by a council pursuant to

section 206of the Act is not one that requires a standard of review analysis. All one needs to do is review the language of

section 410 in the contextof the Act as a whole. [81] As attractive as the approach just described may be, I do not believe it is in accord with the most recent statements by theSupreme Court of Canada in cases such as CHRC as to the role of the courts on the review or appeal of a decision of a statutory decision-maker. Those cases mandate that a review of the statute be made to determine the applicable standard of review.

That standard will bereasonableness unless the matter falls under one of the four exceptions in Dunsmuir as reiterated by CHRC that require a correctnessapproach: (1) issues relating to the constitutional division of powers; (2) true questions of vires; (3) issues of competing jurisdictionbetween tribunals; and (4) questions that are of central importance to the legal system and are outside the expertise of the decision maker(CHRC at paragraph 29). None of those exceptions are applicable here.

The last category where the presumption of reasonableness isrebutted is where a contextual inquiry shows a clear legislative intent that the correctness standard be applied (CHRC at paragraph 29). [82] Therefore, although I conclude that a contextual analysis is required to identify the applicable standard of review in thisinstance, I am satisfied that it need only be brief as it engages the same factors that I set out above.

That is, notwithstanding themovement towards an almost universal reasonableness standard as articulated in Edmonton East and CHRC, the legislature in enactingsection 410 of the Act has expressly provided that the reviewing Court hearing the appeal may (

a) hear the evidence anew and (b)substitute its decision for that of the municipal council. [83] I note here that municipal councils generally do not provide reasons for their decisions. Rather, the decision is found in aresolution without more. This is not unexpected given the nature of the forum involved. Nevertheless, the record of the councilproceedings must be complete enough that it can be reviewed by the Court, particularly as to the evidence that was before the counciland as to whether procedural fairness was afforded to the councillor in question. [84] Permitting the Court to: (

a) reinstate a councillor whose seat was vacated; (

b) amend or rewrite the resolution made undersubsection 206(2); or (

c) make another decision that it considers appropriate in the circumstances, suggests that the legislature did notintend that the matter be returned to the council for reconsideration following an appeal. The legislature intended that the Court make thedecision based upon the record before the council and the evidence adduced at the hearing on the appeal.

Such an approach bringsfinality and proportionality to the matter in that it eliminates the risk that the subsequent decision of the council will also be appealed andsent back and forth between the council and the courts on some potentially endless loop. [85] As Karakatsanis, J. said at paragraph 29 of Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87, “If the process isdisproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.” Sending a matterback and forth between the courts and a tribunal may ultimately be neither proportionate nor fair.

Generally speaking, a determinationthat follows a process that meets the requirements of natural justice and that is made within the jurisdictional limits imposed upon thedecision maker should not be overturned by this Court unless it is unreasonable. In the case of

section 410 of the Act, however, thelegislature has taken a step in a different direction towards proportionality and finality by crafting legislation that provides the Court withexpress authority to receive an evidentiary foundation upon which to make its own determination in substitution for that of the municipalcouncil. [86] Consequently, the contextual standard of review analysis in this matter leads me to conclude that an appeal pursuant to section410 of the Act falls into the exceptional category where the presumption of a reasonableness review is rebutted because of the clearlegislative intent that the correctness standard is to be applied.

ANALYSIS Circumstances where a conflict of interest has been found by the Court [87] In looking at previous appeals of this nature I have observed that in the following circumstances the Court has found a conflictof interest: a. Where the councillor votes on a motion to extend water and sewer services to the street on which he or a relative owns property(Crane v. Upper Island Cove (Town Council), (NL SC), [1999] 177 Nfld. & P.E.I.R. 8, 89 ACWS (3d) 383 (Nfld.S.C.); Gosse v. Conception Bay South, (NL SC), [1996] 146 Nfld. & P.E.I.R. 192, 37 MPLR (2d) 146, 1996 St. J.No 2812 (Nfld. S.C.(T.D.)); and Fewer); b.

Where the councillor discussed at a meeting of the municipal council a fire hydrant the removal of which gave rise to a monetaryinterest on the part of the councillor (Coombs v. Placentia (Town), 2018 NLSC 53); and c. Where the councillor took

part in a discussion of business tax and property tax matters involving business interests of his wife(Payne v. Cow Head (Town), (NL SC), [2001] 207 Nfld. & P.E.I.R. 108, 112 ACWS (3d) 959 (Nfld. S.C.)). [88] There are likely other examples, but the cases I have reviewed provide a context to the decision that I have been asked to make.Let me examine the conflict of interest alleged against Mr. Butt to see if the vacancy should be upheld or whether he should be

reinstated. What constitutes a monetary interest? [ 89 ] The key issue before me is whether for the purposes of

section 207 of the Act Mr. Butt had a monetary interest in the removal of the Surprise Bag building. As we saw above, the Act at

section 2 (

o) defines “monetary interest” as: (o) "monetary interest" means an interest or benefit (

i) consisting of money, exacted in money, relating to money or of which money is the object, (ii) capable of being measured by its financial value, cost, benefit, advantage or disadvantage, or (iii) affecting or potentially affecting a person's financial position or worth, his or her assets or asset value but does not include remuneration or a benefit to which a councillor is entitled under this Act [….] [ 90 ] There is no further definition of monetary interest in the Act .

In particular, there is no threshold of benefit that triggers a conflict of interest - it need only be a benefit or a potential benefit that is capable of being measured. I interpret “benefit” to be a current benefit and “potential benefit” to be a possible future benefit. The only exception to the definition is that by section 207(4) it must be an interest distinct from an interest held in common with the other citizens or classes of citizens of the municipality. [ 91 ] At the outset, I note that in the case against Mr.

Butt the Council had no evidence of a conflict of interest other than an inference made based upon the proximity of the two properties as confirmed by a survey plan that seemed to show them abutting one another on a corner. As it turns out, however, based upon the evidence of the surveyor Parsons, the properties do not actually abut. Nevertheless, although there is a small “ransom strip” between the properties, in my view nothing turns on this. That is, the small gap separating the properties makes no difference as to whether Mr.

Butt was in conflict when he moved the 2014 Motion. [ 92 ] Let us next explore the “interest held in common with the other citizens or classes of citizens” exception. In Fewer at paragraph 49 , Orsborn, J. had this to say: […] Subsection 207(4) refers to “classes of citizens”. This would suggest that the features which constitute the particular citizens as a class would be features or characteristics of the citizens themselves. I do not think that the legislature intended that citizens living on a particular street could constitute one class, while those on another street would constitute a different class.

If one accepts Fewer’s position, then two or more citizens would constitute a class. All that would be needed to circumvent a councillor’s prohibited interest would be to apply the decision in question to at least one other citizen on the same street. Given the strictness with which Canadian courts have interpreted conflict of interest le gislation . I am not prepared to interpret “classes of citizens” as including a group of sixteen home owners who happened to live on Chapel’s Cove Road. [ 93 ] Consequently, if Mr.

Butt had a monetary interest in the removal of the Surprise Bag building, it is not enough to say that other property owners in the general vicinity had a similar interest. Those property owners would not constitute a “class of citizens” for the purposes of

section 207. Could a conflict of interest be inferred in this case? [ 94 ] Was it open to the Council to find that Mr. Butt was in a conflict of interest by virtue of having a monetary interest in the removal of the Surprise Bag building? In Fewer the issue was the installation of water and sewer in an area of 16 houses where the councillor and his son had homes. The councillor argued that he already had a good supply of water and an adequate septic system such that there was no value added by the improvements.

Orsborn, J. held: [41] Since this appeal is being treated as a de novo hearing, the question of the proof of the existence of a monetary interest is one for the Court; it is not a matter of reviewing Council’s decision. Given the broad definition of monetary interest, I am quite comfortable in concluding that Fewer had a monetary interest in the water and sewer extension project.

That the value of a house may potentially be enhanced by the provision of municipal water and sewer services is an inference that I am quite prepared to draw from the fact of the project and the location of Fewer’s residence. [42] Should it be considered necessary to treat the matter as a review of Council’s decision, I am also of the opinion that the Council, knowledgeable as it would be of local circumstances and conditions, was quite able to draw the same inference without having to hear evidence directly on the point. [ 95 ] Similar reliance upon a council’s knowledge of local circumstances and conditions was found to be sufficient to establish a monetary interest in, for example, Gosse . [ 96 ] It will not be in every instance that reliance on local knowledge will be sufficient to prove a monetary interest, however.

Specifically, the monetary interest in this case is not so obvious. Although to a lay person it may seem self-evident that removing a dilapidated building in close proximity to a commercial property would enhance or potentially enhance that property’s value, such may not actually be the case. In considering the 2017 Resolution, the Council had no evidence one way or the other.

Does the evidence establish a conflict of interest? [97] At the hearing before me, Mr. Hardy presented his report and was cross-examined. As we have seen, his professional opinionis that the removal of the Surprise Bag building would have virtually no effect on the value of the Esso property. Absent evidence to thecontrary, therefore, it is difficult to see how it could be concluded that Mr. Butt had a monetary interest in the 2014 Motion. [98] Based upon the evidence adduced before me I find that it has not been established that Mr. Butt had a monetary interest in thedemolition of the Surprise Bag building.

The evidence before me establishes that there would have been no appreciable increase in thevalue of his asset had the 2014 Motion passed. By appreciable, based upon the testimony of Mr. Hardy, I mean more than de minimis. Iconclude that to fall with

section 207 of the Act, the monetary interest would have to be an increase or a potential increase in value thatcould be measured by a qualified appraiser such as Mr. Hardy. This is in accordance with

section 2 (o)(ii) of the Act. There was noevidence that such was the case here. Indeed, the evidence was to the contrary. The Council was incorrect when it found that Mr. Buttwas in a conflict of interest when he moved the 2014 motion. [99] Furthermore, although I have determined that the standard of review in this case is correctness, even if I were conducting areasonableness review I would come to the same conclusion. Based upon the evidence before me, the only reasonable outcome is thatMr.

Butt was not in a conflict of interest when he moved the 2014 Motion. was the appellant denied procedural fairness? [100] Mr. Butt also argued that he was denied procedural fairness. If one takes the view that this appeal does not involve a review ofCouncil’s decision, but rather is an independent decision of the Court, then whether there was procedural fairness at the administrativebody is of no consequence for the limited purposes of this appeal.

That is, because the Court affords the parties procedural fairness andbecause they have the opportunity to present their respective cases in full on the hearing of the appeal, then the Court can dispose of thematter without reference to the procedure adopted below. Nevertheless, because I have determined that this is a review of the result ofthe decision by Council, I will address the procedural fairness issue. Court review for procedural fairness [101] Determining whether a party has been provided with procedural fairness does not engage a standard of review analysis.

Eitherthere was procedural fairness afforded to the parties or there was not. In Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC11 , 2002 S.C.C. 11, at paragraph 74, Arbour, J. noted that where issues of procedural fairness or natural justice arise thereviewing Court should conduct “an assessment of the procedures and safeguards required in a particular situation.” Therefore, I willconduct a review of the procedures followed by the Council to determine whether it provided Mr. Butt with the level of proceduralfairness required in this matter.

Procedural fairness in this case [102] The rules of natural justice and procedural fairness are synonymous for the purpose of this appeal. As we have seen, it is inrecognition of the strict and unforgiving nature of the removal of a councillor from his office pursuant to section 206(2) of the Act, andthe prohibition against running for two subsequent years imposed by section 15(3)(

a) of the Municipal Elections Act, that proceduralfairness is so important in these cases. The councillor against whom an allegation of conflict of interest is raised must know the caseagainst him and be presented with a fair opportunity to defend against the allegation. [103] The criteria for assessment of procedural fairness set out in Gosse required the Council to: a. provide Mr. Butt with a written document explicitly setting out the details of the allegations of conflict of interest; b. provide Mr. Butt with a reasonable period of notice prior to the hearing; c. permit Mr.

Butt to be heard by himself or through legal counsel at the hearing before Council; and d. permit Mr. Butt to examine and cross-examine witnesses, submit exhibits and make submissions at that hearing. [104] It is worthy of note that these are the same criteria provided to the Council by the Department of Municipal Affairs in theGuidelines. [105] The Appellant claims that he was denied procedural fairness because of a litany of reasons – 24 are listed in the brief of law filedon his behalf. Some are more relevant that others, however, and others are repetitive.

Let me address those that raise genuine issues forconsideration. One resolution or two [106] The Appellant complains that the Council failed to make a separate decision that he was in a conflict of interest before movingon to vote on declaring his seat vacant.[1] Although it may have been preferable for the Council to have proceeded with separate motionson each of the two matters before it - first, whether there was a conflict of interest and, if so, then ought the seat to be declared vacant – Ihave concluded that two resolutions were not necessary. Let us see why. [107] We begin with the 2017 Resolution.

The Minutes of the regular Council meeting held December 12, 2017 record Motion 17-308as follows: Whereas meetings of Council were held at the Council chambers on 22nd day of November, 2017 and on the 6th day of December 2017for the purpose of determining whether Councillor Frank Butt was in contravention of s. 207 (1) (

b) of the Municipalities Act, 1999 (theAct);

And whereas Councillor Butt was given prior notice of the meetings and issues to be determined by the Council; And whereas Councillor Butt did attend the said meetings with a legal representative with opportunity to address the issues to be determined by the Council; And whereas Council determines that Councillor Frank Butt did on May 20, 2014 speak to and vote on a matter before Council being Motion 14-432, on which matter Councillor Frank Butt had a monetary conflict of interest as defined by s. 2 (o)(iii) of the Act , which conflict was not excluded by s.207(4) of the Act, in that Councillor Butt was the owner of, or controlling shareholder of a company owning a commercial business and lands situate 240 Water Street adjoining and/or in close proximity to a dilapidated property of 234 Water Street which property was subject of a demolition order pursuant to the said Motion, in contravention of s. 207(1) (

b) of the Act. And Whereas pursuant to s. 206(2) of the Act with respect to such contravention no lesser sanction, option or discretion is available to Council; THEREFORE IT IS RESOLVED AS FOLLOWS: THAT pursuant to section 206(2)(

b) of the Act the office of Councillor Butt is hereby declared vacant. Favour 6; Opposed 0; Carried [Emphasis added.] [ 108 ] As can be seen, the determination that the Appellant was in a conflict of interest when he moved and voted on the 2014 Motion is referred to in a recital to the 2017 Resolution. That recital also provides the reasons for the decision. [ 109 ] Let us then look at two similar cases that have been addressed by the Court.

At paragraph 10 of Gosse , the Court addressed a single resolution as follows: That under section 513(2) of the Municipalities Act [the equivalent of section 206(2) of the Act ], Mayor Richard Gosse’s seat be declared vacant for failing to disclose that he was in a conflict of interest in the Committee of the Whole Meeting of March 27, 1995 where he voted to approve the water and sewer servicing for RicCar Drive even though he lives there. [ 110 ] In Coombs , one resolution was passed by the council that addressed both the finding of a conflict of interest and a declaration pursuant to section 206(2) as follows: 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 [ sic ] of the Municipalities Act and as determined by the fact finding process conducted by Greg French Law, is adopted. [ 111 ] I am satisfied that it is not necessary that a municipal council pass separate resolutions relating to the conflict of interest and the vacating of the seat on council, so long as the resolution that is passed clearly articulates that the council has put its collective mind to the necessary precondition that a conflict of interest be established prior to declaring the seat vacant. May a council act on an anonymous and dated complaint? [ 112 ] Mr.

Butt objects to the Complaint because it was anonymous and because it was tendered on the eve of a municipal election in respect of events that had occurred almost three and a half years previously. Notwithstanding these objections, I am satisfied that Council rightly considered it. Let me explain why. [ 113 ] That the Complaint was anonymous does not obviate the requirement that Council investigate it. It is the nature of the Complaint, not its author, that is of importance.

As a result, if a complaint is neither frivolous nor vexatious and can be proven in the absence of the complainant coming forward, then the municipal council has no choice but to address it. [ 114 ] The same holds true for the lateness of the Complaint. It was brought on the eve of the September 26, 2017 election. Whatever the reasons for bringing the Complaint, and however far back the al

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