MelanIe Lafosse Applicant And: Town of Witless Bay FIRST Respondent And: Attorney General for Newfoundland v. Labrador, 2021 NLSC 112

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : LaFosse v. Witless Bay (Town) , 2021 NLSC 112 Date : August 31, 2021 Docket : 202101G3623 BETWEEN: MelanIe Lafosse Applicant And: Town of Witless Bay FIRST Respondent And: Attorney General for Newfoundland and Labrador SECOND Respondent Before: Justice Glen L.C. Noel On Judicial Review From: A Decision of the Town Council of the Town of Witless Bay, Motion 2020-68 dated the 19th day of May, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 30, 2021

Summary: Melanie LaFosse sought judicial review of a decision of the Town Council of the Town of Witless Bay for an extension to Mullowney’s Lane. The roadwork involved improvements to a right-of-way to property of the Deputy Mayor’s brother. The Court quashed Council’s Decision on the reasonableness standard because the Deputy Mayor was in a conflict of interest. The Court directed the Deputy Mayor could not speak to or vote on any new motion Council introduced on the subject issue.

There was no order as to costs. Appearances: Michael J. Crosbie, Q.C. Appearing on behalf of the Applicant Joseph J. Thorne Appearing on behalf of the First Respondent David L. Hearn Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Lafosse v. Eastern Newfoundland Regional Appeal Board, 2021 NLSC 77; LaFosse v. Eastern NewfoundlandRegional Appeal Board, 2021 NLSC 111; O’Dea v. Witless Bay (Town), Eastern Regional Appeal Board, File Number 15-006-064-037;Alberta (Attorney General) v. Malin, 2016 ABCA 396; Downtown Eastside Sex Workers United Against Violence Society v.

Canada(Attorney General), 2012 SCC 45; Cabana v. Newfoundland and Labrador, 2016 NLCA 39; Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65; Tremblett v. Northern Arm (Town), 2021 NLSC 98; Old St. Boniface Residents Assn. Inc. v.Winnipeg (City), (SCC), [1990] 3 SCR 1170; Butt v. Town of Carbonear, 2018 NLSC 152; Fewer v. Harbour Main-Chapel's Cove-Lakeview (Town), 2007 NLTD 91; Crane v. Upper Island Cove (Town), (NL SC), 177 Nfld. &P.E.I.R. 8, 543 A.P.R. 8 (Nfld. S.C.(T.D.)); Gosse v. Conception Bay South (Town), (NL SC), 146 Nfld. & P.E.I.R.192, 456 A.P.R. 192 ((Nfld. S.C.(T.D.)); Coombs v.

Placentia (Town), 2018 NLSC 53 STATUTES CONSIDERED: Municipalities Act, 1999, S.N.L. 1999, c. M-24; RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] Melanie LaFosse seeks judicial review of a decision of the Town Council of the Town of Witless Bay. [2] I gave leave to LaFosse to bring this application in my Injunction Order concerning LaFosse’s appeal of a decision of theEastern Newfoundland Regional Appeal Board (Lafosse v. Eastern Newfoundland Regional Appeal Board, 2021 NLSC 77).

I heard thejudicial review application and the statutory appeal together. My decision in the appeal (LaFosse v. Eastern Newfoundland RegionalAppeal Board, 2021 NLSC 111) has been filed contemporaneously with my reasons herein. [3] LaFosse named the Attorney General for Newfoundland and Labrador as Second Respondent. One of the issues in dispute iswhether the decision of the Town Council involved Crown land that the Town had no authority to make roadwork improvements withoutCrown approval.

The affidavit evidence filed on behalf of the Attorney General, together with the position counsel for the AttorneyGeneral put on record in written submissions, affirms the Town’s decision-making authority for the roadwork in question.

I will addressthe evidence and position of the Attorney General in my discussion on the background. background Council’s Decision [4] The Town Council passed a motion on May 19, 2020, “to tender for roadwork to extend Mullowney’s Lane from theturnaround for 168 meters, and to upgrade the ‘Right-of-Way’ to the existing standards of Mullowney’s Lane.” Motion 2020-68 is thedecision of Council (“Council’s Decision”) that is the subject of the judicial review. Origins of the Dispute

[ 5 ] The dispute over Council’s Decision has its origins in a prior decision of the Town to grant a permit to a local resident, Ron Harte to improve the Right-of-Way to his property up to Town standards. Another resident, Noel O’Dea appealed the permit issued to Mr. Harte to the Eastern Newfoundland Regional Appeal Board. The Board ordered the permit was invalid because the Town did not have authority “to issue a permit to a private individual to do work on a public right-of-way for the benefit of that individual”: O’Dea v.

Witless Bay (Town), Eastern Regional Appeal Board , File Number 15-006-064-037, at page 8 (the “O’Dea Decision”). [ 6 ] LaFosse and O’Dea are part of a group of concerned citizens whose stated goal is to “Save Ragged Beach” – a stretch of beach along Witless Bay near the Witless Bay Ecological Reserve. They contend Council’s Decision concerns the construction, on a “Fisherman’s Path,” of a new segment of road extending from Harte’s property to the existing public road known as Mullowney’s Lane to provide Harte with upgraded access.

Fisherman’s Path is described as – a “winding footpath of several feet in width … used by fishermen and local seabird hunters to travel down the coastline of Ragged Beach, along the coastline toward Mobile.” [ 7 ] LaFosse, in identifying the grounds of the alleged illegality of Council’s Decision, refers to the area in dispute as the “New Access Road.” The Town Council Minutes refer to the area as both the “Extension to Mullowney’s Lane” and the “Right-of-Way.” I use these terms interchangeably and to mean the same in these reasons.

The Decision-Making Process [ 8 ] Council considered a preliminary motion, Motion 2020-67 on whether the Deputy Mayor was in a conflict of interest on the Extension to Mullowney’s Lane. Maureen Murphy is the Deputy Mayor of the Town and the sister of Harte. Deputy Mayor Murphy asked Council to determine whether she was in a conflict of interest on the Extension to Mullowney’s Lane because her brother owns land in the area.

The Council Minutes reveal another councillor, Dale O’Driscoll declared a conflict of interest, and left the meeting, because he could not vote “on his mother-in-law.” The Minutes provide no further explanation of that particular conflict. [ 9 ] Council, with the Deputy Mayor and Councillor O’Driscoll abstaining, moved that Deputy Mayor Murphy was not in conflict of interest. Councillor O’Driscoll returned to the meeting, and Council’s Decision on Motion 2020-68 subsequently followed with unanimous approval and no abstentions.

LaFosse’s Grounds for Judicial Review [ 10 ] LaFosse applies under Rule 54.06 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D , for an order in the nature of certiorari to quash Council’s Decision on the following grounds: i. That the un-surveyed land area of the new construction (i.e., of the New Access Road) is not vested in or owned by the Town; is not within the boundaries of a road reservation; is not a highway or public road; and is, in fact, Crown Land; ii.

That the Town has not passed any By-law or Regulation concerning the terms of creation and the terms of authorizing road reservations and the construction of new public roads, such as the New Access Road; iii. That the Town has not followed its Municipal Plan and Development Regulations concerning this application by the Town to undertake development of an access road from Ron Harte’s land to Mullowney’s Lane; iv.

That the Motion was the product of biased decision-making by the Town because the Town Councillors unanimously (with one abstention) authorized Ron Harte’s Sister, Deputy Mayor Maureen Murphy, to vote concerning the Motion to provide, at Town expense, newly constructed road access from her Brother’s (Ron Harte’

s) property to Mullowney’s Lane; and v. That the Motion was passed in bad faith and for the ulterior purpose of benefiting the property of only one resident of the town, namely Ron Harte, the Deputy Mayor’s Brother. The Town’s Opposition to LaFosse’s Application [ 11 ] The Town submits LaFosse’s Application should be dismissed, on the following basis: (

a) LaFosse does not have standing to challenge Council’s Decision; (

b) The Application is premature and otherwise procedurally flawed; (

c) Council’s Decision is a rational and intelligible response to the Board’s Decision, and any other decision would have constituted a collateral attack on the Board; and (

d) LaFosse has tendered no meaningful evidence of her serious allegations of bias or bad faith. Attorney General’s Position [ 12 ] The Town disputes whether the Attorney General is a proper or necessary party. The Attorney General did not participate in Council’s Decision. LaFosse did not seek specific relief against the Attorney General. The Attorney General did not object to being a party named to the Application.

[ 13 ] The Attorney General’s position has proved helpful in addressing and resolving that the Right-of-Way is the responsibility of the Town pursuant to s. 163 of the Municipalities Act, 1999 , S.N.L. 1999, c. M-24 . [ 14 ] The parties do not dispute that the Right-of-Way is for public use. The Affidavit evidence of Tara Morgan, Director, Crown Lands Division for the Province, confirms the historical use of the “cart path” by the members of the public since at least 1948.

Crown Grants for parcels of land issued to Harte and the Town reference the public Right-of-Way. [ 15 ] The Attorney General confirms that the Right-of-Way has been dedicated and accepted as a public road vesting under the management and control of the Town. issues [ 16 ] I see no merit to any of LaFosse’s grounds for quashing Council’s Decision, except the ground relating to Council’s decision- making process and the Deputy Mayor’s involvement. [ 17 ] I can likewise dispense quickly with the Town’s submissions that the Application is premature and otherwise procedurally flawed, or a collateral attack on the decision of the Board in LaFosse’s Appeal.

LaFosse has no alternative remedy other than judicial review because the Board has no jurisdiction to hear LaFosse’s legal complaints relating to the Council’s Decision. I am able to decide the core issues on the record that was before Council without having to resort to LaFosse’s affidavit evidence pertaining to the use and nature of the Right-of-Way. [ 18 ] The application for judicial review turns on the following salient issues: 1. Does LaFosse have standing to challenge Council’s Decision? 2. What is the standard of review and approach to apply to Council’s Decision? 3.

Is there any basis for quashing Council’s Decision based on the applicable standard of review? 4. If so, what directions will the Court provide? Analysis 1. Standing [ 19 ] LaFosse has standing to bring the judicial review proceeding on a public interest basis.

There are others in the “Save Ragged Beach” group, who live in the Town and have had a much closer proximity connection to the subject matter than LaFosse, however that does not preclude her from taking the lead in bringing this judicial review proceeding. [ 20 ] Legal standing is grounded on a public-interest basis, where the person claiming standing can be seen as a genuine representative of a larger class of individuals intent on bringing matters of public interest and importance before the courts: Alberta (Attorney General) v.

Malin , 2016 ABCA 396 , at para. 18 ; and Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) , 2012 SCC 45 , at para. 22 . [ 21 ] The decision to grant public interest standing is discretionary: Cabana v. Newfoundland and Labrador , 2016 NLCA 39 , at para. 16 .

The discretion to grant standing involves striking a balance between ensuring LaFosse has access to the Court to challenge the legality of Council’s Decision and preserving judicial resources: Downtown Eastside Sex Workers , at para. 23. [ 22 ] The Supreme Court of Canada has clearly established the three factors I must consider in granting public interest standing: (

i) whether there is a serious justiciable issue raised; (ii) whether the plaintiff has a real stake or a genuine interest in it; and (iii) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the Court: Downtown Eastside Sex Workers , at para. 37. [ 23 ] Firstly, the issue of whether Council’s Decision was legally flawed based on the Deputy Mayor’s involvement and conflict of interest is a serious justiciable issue. [ 24 ] Secondly, LaFosse has a real stake and genuine interest in it for two reasons.

The Board had already legally recognized LaFosse under s. 42(1) of the Act as “a person or an association of persons aggrieved” by Council’s Decision. The Board was aware LaFosse does not reside in Witless Bay but visits with her parents who live on Mullowney’s Lane. The Board was also aware LaFosse is involved with the association of persons to “Save Ragged Beach” who do own property in the Town.

The second reason is that I raised in Case Management with the parties that if the Board had no jurisdiction to hear LaFosse’s appeal of Council’s Decision, I would give leave to her to seek an alternative remedy through judicial review. Having given leave for her to do so, it would be unjust to now turnaround and refuse her standing. [ 25 ] Thirdly and most importantly for the exercising of my discretion in the circumstances of this case, is the judicial review application is a reasonable and effective way to bring the issue before the Court.

If I had not granted standing to LaFosse, I would have granted the parties an adjournment to rectify the Town’s objection to LaFosse’s standing and permitted a resident, such as Noel O’Dea who acted as LaFosse’s agent at the appeal and attended the in-person Court proceedings, to bring the application for judicial review. Considering an Injunction Order was in place preventing the Town from undertaking any work on the Right-of-Way, the Town

understandably wanted a timely resolution of the dispute and did not want a postponement of the hearing. To deny LaFosse standingwould not be doing fairness and justice to her and the “Save Ragged Beach” group, nor would the alternative route of granting apostponement have been fair and practical for the Town getting a timely and effective resolution of the issue. 2. Standard of Review Approach [26] Reasonableness is the presumptive standard of review for administrative decisions. The Town was interpreting its homestatute – the Municipalities Act.

There is nothing in this case to rebut the presumption of reasonableness review. Reasonableness istherefore the standard of review that applies to Council’s Decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019SCC 65, at paras. 10 and 23; and Tremblett v.

Northern Arm (Town), 2021 NLSC 98, at para. 14. [27] The reasonableness approach to administrative decisions where the Court is not analyzing the decision-maker’s reasons has itsfocus on the outcome and the process followed in arriving at the decision: Vavilov, at paras. 137 and 138; and Tremblett, at para. 17. [28] Council is an elected body and the Court must show respect and deference to its decisions. Nevertheless, the Court has a rolein safeguarding “the legality, rationality, and fairness of the administrative process”: Vavilov, at para. 13.

The scope of Council’sexercise of authority must be rationally justified: Vavilov, at paras. 30 and 109; and Tremblett, at para. 18. 3. Basis for Quashing Council’s Decision [29] Council’s Decision is not justified within the constraints of the legislation and guiding judicial authorities. Deputy MayorMurphy was in a legal conflict of interest based on the language and

interpretation of the statute. Council’s Decision did not accord witha reasonable application of the conflict of interest provisions of the Act. [30] The statutory provisions provide a definition of the kind of interest which will give rise to a conflict of interest: Old St.Boniface Residents Assn. Inc. v. Winnipeg (City), (SCC), [1990] 3 SCR 1170, at para 93. [31] Section 207(1) states “a councillor shall not vote on or speak to a matter before the council … where (

c) a relative of thecouncillor has a monetary interest in the matter.” Subsection (2) defines a relative to include a brother. [32] “Monetary interest” is broadly defined in s. 2(1)(

o) to mean 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 includeremuneration or a benefit to which a councillor is entitled under this Act. [33] The Deputy Mayor recognized she may have a potential conflict of interest and took the laudable step of asking Council todecide whether she was in conflict.

She complied with the direction under s. 209(1) that when a councillor is in doubt whether she has amonetary interest pursuant to s. 207 to let Council decide.

The Minutes provide no details on any discussions or explanation as to whyCouncil decided the Deputy Mayor was not in a conflict. [34] Without reasons, the focus is on the outcome and the process followed. [35] The legislation has a privative clause meaning a decision of Council “on the matter is final.” A decision made in accordancewith a privative clause is not immune from judicial scrutiny and is still subject to a reasonableness review standard: Vavilov, at para. 49. I must however take into consideration that councillors did squarely turn their minds to addressing the conflict.

That does not mean Ihave to agree with them if I find the outcome was unreasonable. [36] The outcome cannot be justified as a fair and reasonable

interpretation of how the legislature has currently chosen to define“monetary interest.” As long as the Deputy Mayor’s brother had a monetary interest in the Right-of-Way, the legislation defines anddeems her as having a conflict of interest. The closeness of the relationship otherwise between them is irrelevant. [37] The record demonstrates Mr. Harte had a “benefit” and “advantage” to having the Right-of-Way upgraded to the existingstandards of Mullowney’s Lane.

The successful tender to carry out the improvements would result in the expenditure of public funds of$5,800, before tax, to the benefit and advantage of Mr. Harte. Even though it is apparent from the O’Dea Decision that Mr. Harte wasprepared to spend his own money to improve the Right-of-Way, Council’s Decision ultimately involved the expenditure of public fundsto carry out improvements that Mr. Harte wanted to improve access to his property. [38] Justice Stack’s ruling in Butt v.

Town of Carbonear, 2018 NLSC 152, at para. 98, requires that a councillor (or in this context arelative of a councillor) to have an “appreciable” benefit “more than de minimis” to constitute a “monetary interest.” In Butt, theallegation of conflict of interest was that a councillor voted on a motion to demolish a commercial property bordering on the councillor’sproperty with intent to increase the value of his own property. Stack, J. accepted (at para. 34) the opinion evidence of a qualifiedappraiser “that there would be no betterment at all to the value of Mr.

Butt’s building as a result of the demolition” of the other building. [39] There is no requirement that LaFosse proffer evidence of an increase in the appraised value of Mr. Harte’s property. I amsatisfied on the case law that a “monetary interest” as defined by s. 2(1)(o)(ii) is “capable of being measured by its financial value, …benefit,” and “advantage” to Mr. Harte without the necessity of showing an actual increase in the appraised value of his property.

[40] I am also prepared, as Justice Orsborn did in Fewer v. Harbour Main-Chapel's Cove-Lakeview (Town), 2007 NLTD 91 (atparas. 41 and 42), to draw the inference as per s. 2(1)(o)(iii) that Mr. Harte had an interest or benefit “potentially affecting” his “assetvalue.” The value of Mr. Harte’s land may potentially be enhanced by the upgraded and improved Right-of-Way.

Council ought to havebeen able to draw the same reasonable inference without having to hear evidence directly on the point. [41] On appeals to the Court under s. 410(1) for vacating of a councillor’s seat, councillors were found to be in a conflict of interestwhen voting on a motion to extend water and sewer services to the street on which the councillor or a relative owns property: (Crane v.Upper Island Cove (Town), (NL SC), 177 Nfld. & P.E.I.R. 8, 543 A.P.R. 8 (Nfld. S.C.(T.D.)); Gosse v. ConceptionBay South (Town), (NL SC), 146 Nfld. & P.E.I.R. 192, 456 A.P.R. 192 ((Nfld.

S.C.(T.D.)); and Fewer). [42] An independent investigation in the case of Coombs v. Placentia (Town), 2018 NLSC 53, concluded a councillor was in aconflict of interest for discussing at a meeting of council the removal of a fire hydrant from his property to make it easier for snowclearing and parking. On appeal to the Court (at para. 4), the councillor conceded that he was in a conflict of interest with respect to theissue of the fire hydrant. [43] There is no “bright-line test” of what constitutes a “monetary interest” within the meaning of the Act.

Since the facts andcircumstances will vary from case to case, it is impractical to articulate a bright-line test that will apply in all circumstances. [44] Interpretive phrases such as “appreciable” and “more than de minimis” are helpful but not definitive. In the context of thefactual circumstances in this case, I am satisfied the financial benefit to Mr.

Harte was more than de minimis, and I would characterize itas “substantial.” The improvements to the Right-of-Way certainly consisted of more than filling potholes or other relatively insignificantroad or infrastructure work, where I might very well have been prepared to defer to a determination made by Council on whether acouncillor was in a conflict of interest or not. [45] Members of Council were well-aware of the objections raised by O’Dea and LaFosse in their appeals to the Board and theconcerns expressed that improvements to the Right-of-Way were for the benefit and advantage of property owner, Mr. Harte.

It wasunreasonable in light of this knowledge and the concerns raised that they would proceed with a process of permitting Deputy MayorMurphy to vote on a motion to the specific benefit and substantial advantage of her brother. [46] I have no difficulty accepting that reasonably well-informed and fair-minded citizens of the Town would be offended if theDeputy Mayor voted to expend significant public monies for road improvements to her own property.

The legislation prohibits theDeputy Mayor from voting to expend public monies to the benefit and advantage of her brother, and her fellow councillors authorizingher to do so. [47] I would be remiss in my oversight duty to show deference to the decision-making process of Council and the outcome Councilreached. I must declare Council’s Decision unreasonable. [48] That is not to say the Deputy Mayor or Council in any way acted in bad faith as LaFosse contends. I find no support in therecord that Deputy Mayor Murphy or Council acted in bad faith. They simply failed to apply a reasonable

interpretation to the conflict-of-interest provisions of the Act. 4. Remedy - Directions to Council [49] In a judicial review, it is not my role to tell Council what decision to make on the Right-of-Way issue. That falls to theresponsibility of Council. [50] The remedy arising from quashing of Council’s Decision is to give directions to Council on the process going forward on theissue.

Deputy Mayor Murphy shall not participate in any discussion or vote, if Council introduces a new motion on the Extension toMullowney’s Lane and the Right-of-Way issue. [51] I will make a final comment for clarity on the consequences of my decision on the Deputy Mayor’s status for voting on amotion that I held her to be in a conflict of interest. [52] Section 206(2)(

b) requires a council, by resolution, to declare vacant the office of an elected councillor where that councillordiscusses or votes on a matter on which she has a conflict of interest. In the circumstances of this case, that provision has no application. Since Council’s Decision is quashed, there is no motion or matter the Deputy Mayor could be said to have discussed or voted on. Herseat cannot therefore be declared vacant as consequence of my ruling.

Costs [53] In keeping with my decision in LaFosse’s parallel statutory appeal proceeding, there is no order as to costs. [54] While LaFosse met with success in having Council’s Decision quashed on the discrete issue of the Deputy Mayor’s conflict ofinterest, I dismissed the other grounds of her application, as well as her Appeal. The Attorney General did not seek costs. conclusion [55] I have concluded: 1. LaFosse has standing to challenge Council’s Decision. 2. The standard of review that applies to Council’s Decision is reasonableness.

3. Council’s Decision is quashed because Deputy Mayor Murphy was in a conflict of interest. 4. Deputy Mayor Murphy shall not participate in any discussion or vote, if Council introduces a new motion on the subject issue. order: [ 56 ] LaFosse’s application is allowed. Council’s Decision is quashed with the directions of the Court as ordered in paragraphs 50 and 52 above, and no order as to costs. Glen L.C. Noel Justice