Richard Freake Appellant And: Town of Gander Respondent, 2020 NLSC 87

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Freake v. Gander (Town) , 2020 NLSC 87 Date : June 12, 2020 Docket : 201905G0025 201905G0026 Between: Richard Freake Appellant And: Town of Gander Respondent Before: Justice Glen L.C. Noel On Appeal From: A Decision of Central Newfoundland Regional Appeal Board pursuant to section 46(2) of the Urban and Rural Planning Act , File # 15-006-054-039 and File # 15-006-054-040 dated the 1 day of February 2019.

Place of Hearing: Gander, Newfoundland and Labrador Dates of Hearing: January 29, 2020; March 10, 2020; May 26, 2020; June 2, 2020 *Note: Due to COVID-19 Restrictions and Measures the appearances on *26 May 2020 and *2 June 2020 were by telephone pursuant to Rule 47A.03(1).

Summary: The Town of Gander issued Demolition Orders for two buildings in Gander owned by Richard Freake. Mr. Freake appealed theDecisions of the Central Newfoundland Regional Appeal Board confirming the Orders. The Board sent a Notice of Hearing to Mr.Freake by email and two registered mail notices to the address that Mr. Freake provided. He did not receive the email and the tworegistered letters were unclaimed. The Board proceeded with the hearing in Mr. Freake’s absence and confirmed the Orders. Mr.

Freake brought a statutory appeal under section 46(2) of the Urban and Rural Planning Act for breach of procedural fairness and hisright to be heard. The Court applied a correctness standard and held the Board made an error of law in applying section 107(1), the service provision of theAct. Mr. Freake did not have proper and effective notice of the hearing. The Orders of the Board were vacated and the matter returnedto the Board for a new hearing date. There was no order as to costs. Appearances: Richard Freake Appearing on his own behalf as Appellant Mark T.

McWhirter Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Pynn v. Lane, 2008 NLTD 179; Clarke v. Newfoundland & Labrador (Eastern Regional Appeal Board), 2005NLTD 96; Storey v. Saskatoon (City), 1999 SKQB 96; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; BellCanada v. Canada (Attorney General), 2019 SCC 66; Aylward v. Law Society of Newfoundland and Labrador, 2013 NLCA 68; Baker v.Canada (Minister of Citizenship & Immigration), 1999 SCC 699; Taylor v. Mallany, 2019 NLCA 25; French v.

Law Society of UpperCanada (No. 4) (1976), (ON SC), 12 O.R. (2d) 361, 69 D.L.R. (3d) 37 (Ont. Div. Ct.); Milton (Town) v. Ontario(Municipal Board) (1978), (ON SC), 20 O.R. (2d) 257, 2 A.C.W.S. 273 (Ont. H.C.J.); R. v. County of London QuarterSessions Appeals Committee, Ex p. Rossi, [1956] 1 Q.B. 682; Gray v. Langley (Township) (1986) (BC CA), 2A.C.W.S. (3d) 398, 34 D.L.R. (4th) 270 (B.C.C.A.); Johal v. Damiano, 2019 BCSC 1747; Sharanek v. Canada (Public Safety &Emergency Preparedness), 2019 FC 751; Bozanis v.

Clarington (Municipality) (2004), 135 A.C.W.S. (3d) 558, 5 M.P.L.R. (4th) 8, aff’d2004 CarswellOnt 5139 (Ont, S.C.J.); Prue v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 1234; Hollowayv. Holloway, 2001 NFCA 17 STATUTES CONSIDERED: Urban and Rural Planning Act, 2000, S.N.L. 2000 c. U-8; Occupancy and Maintenance Regulations,C.N.L.R. 1021/96; Corporations Act, R.S.N.L. 1990 c. C-36;

Interpretation Act, R.S.N.L. 1990 c. I-19 RULES CONSIDERED: Rules of Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Noel, J.: OVERVIEW [1] Richard Freake appeals the Decisions of the Central Newfoundland Regional Appeal Board dated 1 February 2019 confirmingDemolition Orders issued by the Town of Gander for the buildings he owns at 283 and 287 Elizabeth Drive (“the property”) inGander.[1]

[ 2 ] This appeal turns on the

interpretation of section 107(1) of the Urban and Rural Planning Act, 2000 , S.N.L. 2000 c. U-8 (the “ Act ”); and more specifically, whether Mr. Freake had proper notice of the hearing date. The Board sent a Notice of Hearing to Mr. Freake by email at the email address he had provided in his appeal documents, and two registered mail notices of the hearing date to the postal address provided. Mr.

Freake did not receive the email and the registered notices went unclaimed before the hearing date. [ 3 ] Section 46(2) of the Urban and Rural Planning Act, 2000 , as amended, permits an appeal to this Court from the Decisions of the Board on a question of law or jurisdiction. [ 4 ] The Town submits the appeal be dismissed; contending Mr. Freake had notice of the hearing in compliance with section 107(1) . [ 5 ] The parties are seeking costs against each other. Mr. Freake argues for costs against the Town because the Town should not have proceeded with the hearing before the Board.

He submits the Town had the ability to serve him personally with the Notice of Hearing and ought to have done so. The Town’s position is it had no obligation to arrange for personal service, and that Mr. Freake’s own lack of diligence resulted in his failure to attend the hearing. [ 6 ] I have concluded the Board made an error of law in not correctly applying section 107(1) of the Act . Mr. Freake did not have proper and effective notice of the hearing. I am allowing the appeal without any award of costs, vacating the Orders of the Board, and returning the matter to the Board for a new hearing date. [ 7 ] Mr.

Freake raised another ground of appeal relating to breach of procedural fairness in the Board granting Orders for a matter, which he claims the Provincial Court had previously dismissed. There is no basis for deciding the appeal on this ground, and whether there is any merit to such position is for the Board’s determination, if Mr. Freake pursues it in his appeal before the Board. Issues [ 8 ] The issues before the Court are: 1. The applicable standard of review; 2. Whether the Notice of Hearing was in accordance with section 107(1) ; 3.

Any basis for deciding the appeal because of a matter previously dismissed in Provincial Court; and 4. Costs. Background Chronology Relating to the Property [ 9 ] The relevant chronology in the dispute between Mr. Freake and the Town relating to 283 and 287 Elizabeth Drive dates back over 11 years. • 14 May 2009 - The Town informed Mr. Freake by letter that the property was in violation of

section 5 of the Occupancy and Maintenance Regulations, C.N.L.R. 1021/96 . The letter outlined the specifics of “deficiencies which are in need of attention”. The Town asked to be notified of Mr. Freake’s intentions within 14 days. • 28 May 2012 – The Town conducted a visual inspection of the property and other surrounding properties, and a memo outlining the deficiencies was prepared. • 18 January 2016 – The Town filed an Information in Provincial Court alleging Mr.

Freake failed to comply with an order of the Town dated 2 July 2014 issued under the Act requiring compliance with the Occupancy and Maintenance Regulations . • 2 August 2016 – Provincial Court Judge Linehan dismissed the information for want of prosecution when the Town failed to have anyone appear. • 15 November 2017 - Minutes of a regular meeting of the Town Council indicate discussion by the Development Committee regarding “Building Safety Concerns” of the property. An adjacent business owner expressed safety concerns and described unpleasant aesthetic appearance having a negative effect on his business.

The Town’s Chief Administrative Officer (CAO), representative from Council and Director of Engineering visited the site to see the conditions of the property. The Committee recommended staff action to have the matter addressed in a timely fashion. • 17 January 2018 – The Town, at a regular general meeting of Council, carried a motion to issue orders to demolish the building at the property within 30 days of service of the Demolition Orders. Proceedings before the Board [ 10 ] The appeal before the Board was originally to be heard on 23 August 2018. The day prior to the scheduled hearing, Mr.

Freake presented a medical note dated 14 August 2018 to the Board Secretary indicating he was under doctor’s care since that date and unable to “return to work” until 17 September 2018. [ 11 ] The Board rescheduled the hearing to 22 January 2019, and proceeded with the hearing in Mr. Freake’s absence. [ 12 ] The hearing was recorded. The audio of the hearing indicates the Board Secretary, Robert Cotter, advised, “For the record, the Appellant is not in attendance here this morning.” Mr. Cotter further reports, “Mr. Chair, before we move on, I just wanted to, just for

the record, say that notices were sent to Mr. Freake.” Mr. Cotter indicates the notices were sent by email on 18 December 2018, and registered mail on 20 December 2018. Mr. Cotter states that he is not aware whether Mr. Freake had received the email. Mr. Cotter notes the notice sent by registered mail on 20 December 2018was “returned to sender”. Upon the notice being returned to sender, Mr. Cotter confirms he sent another notice by registered mail on 10 January 2019, along with notice cards indicating where to pick up the notice. Mr.

Cotter concludes by noting that the hearing was originally scheduled for August but was postponed at the request of Mr. Freake. Documentary Record of the Notices Sent [ 13 ] The Board documentary record reveals the further particulars pertaining to the notices sent to Mr. Freake. Mr. Cotter in an email to the parties on 18 December 2018 attached the Notice of Hearing. The email was delivered, as is apparent from the tracking receipt, to Mr. Freake’s work email: rickfreake@gov.nl.ca. I note the record did not have a ‘read receipt’ tracking confirmation for the email. Mr.

Freake submitted to the Court that he did not receive the email because he had no access to his work email while on sick leave. [ 14 ] The Board followed up with two Canada Post registered mailings of the Notice of Hearing to Mr. Freake’s postal address. Canada Post picked up the first one on 20 December 2018 for delivery. The Tracking number and information dated 16 January 2019 shows, “Item was unclaimed by recipient. Item being returned to sender.” Canada Post picked up the second registered mail notice on 9 January 2019.

The Tracking number and information for that one shows on 10 January 2019, “Notice card left indicating where and when to pick up item.” There was no confirmation of delivery until 31 January 2019 – nine days after the hearing had taken place and the day prior to the date of the Board’s Decisions. Analysis 1. Standard of Review [ 15 ] This is a statutory appeal of the Board’s Decisions on a question of law or jurisdiction, specifically the application of section 107(1) of the Act and breach of procedural fairness.

It constitutes an error of law when service or notice is not properly conformed with in accordance with the provision of an Act : Pynn v. Lane , 2008 NLTD 179 and Clarke v. Newfoundland & Labrador (Eastern Regional Appeal Board) , 2005 NLTD 96 . Failing to give proper and effective legal notice of a legal proceeding has the consequences of denying to that person procedural fairness: Storey v. Saskatoon (City) , 1999 SKQB 96 at paragraph 16 . [ 16 ] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 confirmed (at paragraph 37 ), “where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision.” Since we are dealing with an error of law in statutory

interpretation, the applicable standard is correctness: Bell Canada v. Canada (Attorney General) , 2019 SCC 66 at paragraph 35 . [2] [ 17 ] If the Board “failed to accord the appropriate procedural safeguards” to Mr. Freake, the Decisions must be set aside: Aylward v. Law Society of Newfoundland and Labrador , 2013 NLCA 68 , at paragraph 19 . 2. Whether the Notice of Hearing was in accordance with section 107(1) [ 18 ]

Section 107 states: Service 107.

(1) Unless otherwise stated in this Act , a notice , order or other document required to be given, delivered or served under this Act is sufficiently given, delivered or served where delivered personally or sent by registered mail addressed to the person at the latest known address of that person.

(2) Where a person to whom a notice, order or other document is to be given, delivered or served as described in subsection (1) is a corporation, it shall be considered sufficiently given, delivered or served where delivered personally to a director or chief executive officer of that corporation.

(3) Where an order that can be made under this Act cannot be given, delivered or served under either subsection (1) or (2), that order is considered given, delivered or served if it is posted in a conspicuous place on the property to which the order relates. [Emphasis added] [ 19 ]

Section 107 provides for the method of effecting service of a notice, order or other document. The wording of subsection 107(1) gives rise to ambiguity and requires

interpretation. It has not received prior reported judicial consideration. [ 20 ] The central issue in this appeal is whether a Notice of Hearing “is sufficiently given, delivered or served where sent by registered mail”, and the notice or notices go unclaimed before the hearing date. The Board’s Reasons

[21] The Board did not refer to section 107(1) and address in its reasons or deliberations that it was alive to the “essential elements”of statutory

interpretation, including the text, context and purpose of the legislative provision; and more fundamentally, the duty ofprocedural fairness owed to Mr. Freake. [22] The Board’s reasons make note of the previous postponement and rescheduled hearing date, and refer to the notices the Boardprovided. They state, “Due to the efforts made to contact Mr. Freake and his lack of communication with the Secretary, the Board madethe decision to proceed with the hearing in Mr. Freake’s absence.” [23] There is nothing in the reasons or record to show Mr. Freake had knowledge of the hearing date, or to establish Mr.

Freakedeliberately avoiding the notices. The record does not support the Board made any further efforts to contact Mr. Freake other than theemail and two registered notices. The reasons fail to give any indication why the notices were not received by Mr. Freake in advance ofthe hearing. Mr. Freake’s lack of communication with the Board (as I will later address) goes to the issue of costs and not to the Board’scompliance with section 107(1). [24] The question then is could the Board nevertheless proceed with the hearing based on the sent, but unclaimed, registered noticeaccording to section 107(1).

The answer requires examining the specific wording of the provision in its context with the purpose theprovision is intended to achieve, and considering the guiding authorities. Wording, Context and Purpose of the Provision [25] Section 107(1) requires a notice to be served personally or sent by registered mail. There is a purpose for the legislaturerequiring registered mail. A notice sent by registered mail is not “sufficiently given, delivered or served” without proof of receipt by theaddressee. Mr.

Freake makes a valid point: why require the trouble and additional expense of registered mail if the intended purpose isnot to secure proof of receipt. The legislature would have simply stipulated sent by mail, if proof of receipt was not a material element ofsatisfying service of the Notice. [26] My

interpretation of section 107(1), when read together with subsections 107(2) and (3), is a party must receive due notice ofthe hearing date. Oddly, section 107(2) for service on a corporation service is required “personally to a director or chief executiveofficer of that corporation”. This is more onerous than under section 402(1) of the Corporations Act, R.S.N.L. 1990 c. C-36[3].

Section107(3) does not speak to the giving of “a notice” but only to “an order” that “cannot be given, delivered or served under either subsection(1) or (2).” Such order can then be “posted in a conspicuous place on the property to which the order relates.” Section 107(3) is a formof substituted service when service cannot otherwise be effected. When read contextually, the only reasonable

interpretation is noticesent by registered mail must be received by the addressee to effect proper service. [27] A reasonable statutory

interpretation of section 107(1) could also support an

interpretation that allows for evidence establishingevasion of service as satisfactory service. Proof of receipt of the registered mail in such circumstances would not be necessary. [28] The purpose of the Notice is to ensure the parties know the date, time and place of the hearing so they can appear and be heard. The authorities support this conclusion. [29] The Court must be guided by

section 16 of the

Interpretation Act, R.S.N.L. 1990 c. I-19 that every Act and provision shall beconsidered remedial, and receive the liberal construction and

interpretation that best ensures the attainment of the objects of the Act andprovision according to its true meaning. The object of section 42(1) of the Act is to give an aggrieved person in certain prescribedcircumstances the right of appeal to the Board, and section 42(7) provides for making representations concerning the matter underappeal. [30] Mr. Freake’s submissions focus on procedural fairness.

He relies on the Supreme Court of Canada’s comments in Baker v.Canada (Minister of Citizenship & Immigration), 1999 SCC 699 at paragraph 28: 28 …The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should havethe opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair,impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. [31] I interpret notice under section 107(1) cognizant of Baker and the recent comments of Fry, C.J.N.L.: “A fundamental element ofthe right to be heard is the right of a party to present their case to the decision-maker: Taylor v.

Mallany, 2019 NLCA 25, at paragraph26. Case law on similar statutory Notice Provisions [32] I was not provided with any case law considering the specific wording as in section 107(1). Counsel for the Town did fileseveral cases considering other statutory notice provisions. I presented a number of cases to the parties for consideration and comments. [33] There is no need to cite every case considered. The consistent theme in all of the cases is fairness and justice to the partiesbased on the specific-fact situation. [34] The Town submits French v.

Law Society of Upper Canada (No. 4) (1976), (ON SC), 12 O.R. (2d) 361, 69D.L.R. (3d) 37 (Ont. Div. Ct.) is authority for when notice is permitted by registered mail there is no requirement to show that it wasclaimed or received by the addressee. [35] Two key factual elements in French prevent me from accepting that case as authority for the Town’s position on the registeredunclaimed mail as sufficient notice. Mr.

French, an Ontario lawyer who had embezzled funds from his trust account, knew through hiscounsel’s attendance at a prior Convocation when Convocation would be meeting again to decide the Discipline Committee’s decisionand recommendation for disbarment. Secondly, he was refusing to accept the letter and endeavoring to frustrate the efforts of the PostOffice to effect delivery. I also note Convocation was adjourned on five occasions over a period of nearly three years at Mr. French’s

request. Mr. French was clearly attempting to avoid his disbarment. [36] As seen in Milton (Town) v. Ontario (Municipal Board) (1978), (ON SC), 20 O.R. (2d) 257, 2 A.C.W.S. 273(Ont. H.C.J.), the case of French is not authority for the proposition that permitted service by registered mail will, in all cases, be held tohave been effectively performed. Southey, J relied on what Lord Denning said in R. v. County of London Quarter Sessions AppealsCommittee, Ex p.

Rossi, [1956] 1 Q.B. 682 (at paragraph 693): “… once it appeared that the registered letter was returned undelivered,quarter sessions ought not to have proceeded with the case, because there was no proper service.” I endorse what Southey, J stated: That case, in my view, provides powerful authority, if any authority is needed, for the proposition that the courts are not bound to regardservice as having been made when it is known that there has been no service. [37] In Gray v.

Langley (Township) (1986) (BC CA), 2 A.C.W.S. (3d) 398, 34 D.L.R. (4th) 270 (B.C.C.A.) themunicipal tax sale notice provision was similar to the wording of section 107(1) in that the notice, if not served personally, “shall be sentby registered mail to the address appearing on the assessment roll”. The address on the assessment roll was the owner’s address at thetime of purchase of the vacant land, but his address subsequently changed and he did not receive the annual tax assessments or thedouble-registered letter notice of tax sale. [38] Mr.

Gray contended the provision obliges the municipality to give actual notice, and that a double-registered letter returnedunclaimed does not constitute notice. Langley submitted the effect of the provision is to deem notice sent by double-registered mail tothe address on the assessment roll to be good notice for the purpose of the section. [39] I find the words and conclusion of McLachlin, J.A. (as she then was), in Gray (at paragraph 93) to be most helpful andinstructive on my interpretive approach to

section 107: Section 466(2) of the Municipal Act is not free from ambiguity. However, where one is concerned with the generally recognizedprinciple that a man's property is not to be taken from him without notice, that ambiguity should be resolved in favour of the landowner.If the legislature wishes to deprive him of actual notice, it must do so clearly and unequivocally.

Where the notice sent by double-registered mail is returned in circumstances where it is clear that the landowner has not received it, and the municipality has knowledgeof an address at which service can be effected, the municipality cannot be taken to have discharged its obligation to give notice. [40] Any ambiguity in section 107(1) is to be resolved in Mr. Freake’s favour. The right to be heard on appeal of the DemolitionOrders is so fundamental that the Board had an obligation not to proceed with the hearing, unless satisfied Mr.

Freake received theNotice. [41] The Town relies on other cases dealing with provisions in legislation where unclaimed registered mail can constitute adequatenotice. The provisions are markedly different from section 107(1). [42] Deemed service provisions are of no assistance to the Town’s position since the presumption of deemed service is “rebuttableon proper evidence”. The courts and tribunals in those cases turn to the facts of service relevant to the case to assess whether “properevidence’ provided an adequate explanation of why mail was left unclaimed”: Johal v.

Damiano, 2019 BCSC 1747 at paragraphs 22 and23. Mr. Freake had no opportunity to present evidence to the Board to explain why the notices were unclaimed. [43] Provisions in regulatory statutes not requiring personal service and allowing for service by registered mail only, and the casesthat apply such provisions, offer no precedential value in the

interpretation of section 107(1).[4] 3. Any basis for deciding the appeal because of a matter previously dismissed in Provincial Court [44] Mr. Freake argues the Board breached procedural fairness “by granting an order for a matter which was already dismissed bythe Provincial Court”. I note in his appeal submissions filed with the Board, Mr. Freake did not specifically raise this as a ground ofappeal.

He did in paragraph 1 of his Appeal state more generally: “The removal order was made prior to the Town of Gander making avalid order for maintenance and repair of the premises, and as a result is a misuse and/or excessive use of discretion in requiringremoval.” The Board recognized and rejected Mr. Freake’s position that a maintenance order had to precede a demolition order.

TheBoard did not in its Decisions – because presumably no argument or evidence was before the Board - refer to the Provincial Court matter. [45] There is no denial of procedural fairness by the Court not dealing with this ground of appeal, and allowing Mr. Freake theopportunity to put the matter before the Board for consideration at the new hearing. costs [46] Mr. Freake seeks $5000 in lump sum cost award against the Town. The Town asks for its party and party costs. There is nojustification for any order of costs. [47] Costs are in the discretion of the Court.

My discretion must be exercised judicially according to established principles and theparticular circumstances of the case. [48] Mr. Freake is not without blame in the Board’s failure to give proper notice of the hearing. Reasonable steps by Mr. Freakecould have avoided all this. First, Mr. Freake should have informed the Board he would have no access to the email address he providedwhile he was away from work on sick leave. Second, he did not provide an updated sick note to the Board, so the Board would have noway of knowing he was still on sick leave and not ready to proceed with his appeal.

Third, he did not check his mail regularly or advisethe Board he would not be checking his mail resulting in the unclaimed notices. [49] Since Mr. Freake prevailed in the result of this appeal, the Town cannot expect to receive its costs, unless Mr. Freake’s conductamounted to “an abuse of process”: Holloway v. Holloway, 2001 NFCA 17 at paragraph 78. The facts do not support my ordering costsagainst the successful litigant.

Concluding Remarks [ 50 ] The dispute concerning the property has dragged on for years. The Decisions identify safety concerns with the property. The Town is entitled to timely disposition of Mr. Freake’s appeal. Mr. Freake indicated to the Court there is no medical or other reason preventing him from proceeding with the appeal. Because the Board controls its own process, I am not mandating a time in which the appeal be heard.

However, it would be advisable, given the expressed safety concerns and longstanding duration of this dispute, that the Board consider expediting the new hearing date. [ 51 ] Finally, I take this opportunity to recognize the professional courtesy counsel for the Town, Mr. McWhirter extended to Mr. Freake as a self-represented litigant throughout in assisting him with procedural matters. Mr. McWhirter also provided valuable assistance to the Court on case law research and other aspects of the appeal. Despite the strong advocacy of Mr. McWhirter on behalf of his client, my

interpretation of section 107(1) guided by the authorities demanded the result in this case. Disposition and Order [ 52 ] Pursuant to section 46(4) of the Act , the Orders of the Board are vacated, the matter returned to the Board for a new hearing date, and the Notice of Hearing be given in accordance with these reasons. There will be no order as to costs. _____________________________ Glen L.C. Noel Justice