Grant Abbott Appellant And: Town Council of the town of Musgrave Harbour Respondent, 2023 NLSC 22

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Abbott v. Musgrave Harbour (Town) , 2023 NLSC 22 Date : February 17, 2023 Docket : 202201G1617 Between: Grant Abbott Appellant And: Town Council of the town of Musgrave Harbour Respondent Before: Justice Glen L.C. Noel On Appeal From: A Declaration of the Town Council of Musgrave Harbour declaring a Councillor’s seat pursuant to section 206(1) (f) (ii) of the Municipalities Act, 1999 , dated the 29 th day of April 2022. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 31, 2023

Summary: The Town Council of Musgrave Harbour declared Grant Abbott’s seat on Council vacant pursuant to section 206(1) (f)(ii) of the Municipalities Act, 1999 . The provision provides that the office of councillor becomes vacant where, without leave of Council, the councillor does not attend regular public meetings of Council for three successive months. Abbott appealed under the Act for reinstatement of his seat on Council. During the time of the Province’s COVID-19 Special Orders and Measures, the Town adopted policies requiring mandatory vaccination

for attendance at Council meetings and prohibiting remote attendance for councillors unvaccinated. Abbott was unvaccinated, continuedto connect to the Council meetings by electronic means, and requested he not be subject to the three-month termination of his seat andallowed to return after the vaccination requirement expired. The Court found that

section 206 was not properly engaged. The Town Council, in failing to take a decision on Abbott’s request, did notcomply strictly with the true intent of the statutory provision and breached the duty of procedural fairness owed to Abbott. The appealwas allowed and Abbott reinstated to Council with costs on Column 3. Appearances: Shane R. Belbin and Travis D. Payne Appearing on behalf of the Appellant Robert Bradley Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Lynch v. St. John’s (City), 2020 NLCA 31; Butt v.

Town of Carbonear, 2018 NLSC 152; Vey v.Newfoundland and Labrador Pharmacy Board, 2022 NLCA 55; Aylward v. Law Society of Newfoundland and Labrador, 2013 NLCA68; Neary v. Portugal Cove-St. Philips (Town), 2013 NLCA 47; Callahan v. St. George’s (Municipality), 2012 NLTD(G) 82; CatalystPaper Corp. v. North Cowichan (District), 2012 SCC 2; Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699;Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65;Young v. Young, (SCC), [1993] 4 S.C.R. 3; Holloway v.

Holloway, 2001 NFCA 17 STATUTES CONSIDERED: Municipalities Act, 1999, S.N.L. 1999 c M-24; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Public Health Protection and Promotion Act,S.N.L. 2018, c. P-37.3, s. 28; COVID-19 Vaccine Regulations (Newfoundland and Labrador Regulation 57/21, amended by 72/21);Interpretation Act, R.S.N.L. 1990, c. I-19; Judicature Act, R.S.N.L. 1990, c. J-4; Statutes and Subordinate Legislation Act, R.S.N.L.1990, c. S-27 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D TEXTS CONSIDERED: Special Measures Order, online: Government of Newfoundland and Labrador <http://www.gov.nl.ca>;Special Measures Order (Proof of Vaccination Status – Updated October 21, 2021), online: Government of Newfoundland and Labrador<http://www.gov.nl.ca>; Repeal of All Special Measures Orders, online: Government of Newfoundland and Labrador<https://www.gov.nl.ca>; Ian MacF. Rogers, The Law of Canadian Municipal Corporations, 2nd ed. by Greg Levine, looseleaf (Canada:Carswell, 1988) REASONS FOR JUDGMENT Noel, J.: OVERVIEW [1] Grant Abbott brings this appeal under

section 410 of the Municipalities Act, 1999, S.N.L. 1999 c M-24 (the “MunicipalitiesAct” or the “Act”). The appeal engages section 206(1)(f)(ii) of the Act and concerns whether the Town Council of the Town ofMusgrave Harbour properly removed Abbott, an elected councillor, from the Town Council. The Town declared his seat vacant forfailing to attend regular public meetings of the Council for three successive months. [2] Policies implemented by the Town in response to the COVID-19 pandemic, combined with Abbott’s unvaccinated status,ultimately led to the vacation of Abbott’s seat on Council. Abbott’s Position

[ 3 ] Abbott is not challenging the general authority of a municipality to pass and implement a mandatory vaccination policy. Rather, it is Abbott’s position that a municipality passing such a policy is obligated to do so in a manner that allows for the continued participation of a democratically elected councillor. [ 4 ] Abbott contends he was improperly removed from Council because: (

a) Council did not address his request for leave to not attend meetings; (

b) He continued to attend meetings remotely; (

c) Council did not have the authority to pass regulations with the intended effect of rendering Abbott unable to attend meetings; and (

d) Council’s policies and procedures violated Abbott’s Charter rights ( Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ) . Town’s Position [ 5 ] The Town submits the appeal raises a straightforward question of statutory

interpretation: whether Abbott failed to attend regular public meetings for three successive months. The Municipalities Act does not permit consideration of a councillor’s justification or excuse regarding their failure to attend meetings as required by the Act . Instead,

section 206 is strict. As soon as a councillor fails to attend regular public meetings for three successive months, their seat is automatically vacated. No motion of the Town Council or meeting is required. That is what occurred to Abbott when he did not “attend” Council meetings for the prescribed period. [ 6 ] The Town further submits Abbott is attempting to graft an application for judicial review onto this statutory appeal, and essentially have the Court improperly engage and interfere with the Town’s lawful authority to enact policies and rules of procedure within its statutory mandate.

Disposition of the Appeal [ 7 ] I have determined that the appeal can be resolved on a narrow question of statutory

interpretation and breach of procedural fairness, without the Court opining in this statutory appeal on the reasonableness of the Town’s policies and any duty of accommodation that the Town may have owed to Abbott. [ 8 ] For the reasons that follow, I allow the appeal and reinstate Abbot to the Town Council with partial indemnity costs on Column 3 of the Scale of Costs of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D .

BACKGROUND [ 9 ] It is necessary to lay out the factual background in some detail before delineating and analyzing the issues. [ 10 ] Abbott was elected to the Town Council in the municipal election held on September 28, 2021 – approximately 18 months after the onset of the declared Public Health Emergency for COVID-19: Special Measures Order , online: Government of Newfoundland and Labrador <http://www.gov.nl.ca)> dated March 18, 2020, pursuant to

section 28 of the Public Health Protection and Promotion Act , S.N.L. 2018, c. P-37.3 . [ 11 ] At the time of Abbott’s election, the Town had no policies regarding COVID-19 vaccinations or remote attendance. The informal practice of the Town was to permit remote attendance by phone at all meetings for any reason.

During the peak of the COVID- 19 lockdowns, Council conducted business remotely through video conferencing software. [ 12 ] In October 2021, the Province of Newfoundland and Labrador enacted COVID-19 Vaccine Regulations ( Newfoundland and Labrador Regulation 57/21, amended by 72/21) under the Public Health Protection and Promotion Act . These regulations came into force on December 17, 2021, and the

Schedule listing the premises to which the regulations applied did not include municipal town halls (except fire departments). The Special Measures Order (Proof of Vaccination Status – Updated October 21, 2021 ), online: Government of Newfoundland and Labrador <http://www.gov.nl.ca)> specifically excluded, among certain other businesses, organizations and activities, “[p]laces where government and other public services are offered” (at para. 3.i).

Neither the Regulations nor the Special Measures Order required mandatory vaccinations for attendance at Council meetings. [ 13 ] The COVID-19 Vaccine Regulations included a “Sunset” clause declaring the Regulations shall cease to have effect on June 1, 2022.

In any event, the Chief Medical Officer of Health declared the Repeal of All Special Measures Orders , online: Government of Newfoundland and Labrador <https://www.gov.nl.ca> effective March 14, 2022. [ 14 ] On January 11, 2022, the Council passed a regulation at a public meeting requiring that all councillors provide proof by January 28, 2022, that they had received two doses of a COVID-19 vaccine approved by Health Canada (the “ Vaccination Policy ”).

Alternatively, councillors could produce written proof of a medical reason, provided by a physician or nurse practitioner, exempting the person from vaccinations against COVID-19. [ 15 ] At the January 11, 2022, meeting, Abbott voted against the Vaccination Policy. Prior to the voting on the motion, he acknowledged that he was unvaccinated and not intending to get vaccinated.

While he was concerned about the impact this would have generally on others, he specifically acknowledged that this would have the effect of excluding him from attending Council meetings. [ 16 ] On January 20, 2022, Abbott sent an email to the Town Manager requesting that the agenda for the upcoming meeting to include discussion on how to accommodate councillors using the telephone to call into meetings. [ 17 ] At the regular public meeting of Council on January 25, 2022, prior to the Vaccination Policy coming into effect, the Minutes show that Abbott raised a concern about enforcement of the Vaccination Policy at future meetings.

The agenda of the meeting also

referenced Abbott’s January 20, 2022, correspondence, identified in the agenda as: “Emailed correspondence Councillors using call in services to attend meeting.” [ 18 ] Abbott’s request for clarification on how his remote attendance would be accommodated going forward was not considered at the meeting on January 25, 2022.

The chair, Deputy Mayor Jason Chaulk abruptly adjourned the meeting, following Councillor Abbott “defying” the Policy Prohibiting the Unauthorized Recording of Council Meetings. [ 19 ] On January 30, 2022, Abbott emailed the Town Clerk to request an update on how he would be able to participate at the next meeting. [ 20 ] Council held a meeting on January 31, 2022. Before the meeting, the Town Clerk notified Abbott that he could “sit in on the meeting by phone.” Abbott inquired about the process of him speaking at the meeting.

After connecting Abbott by phone and prior to the commencement of the meeting, he was informed he was not permitted to speak, and could simply listen. [ 21 ] The Minutes for the January 31, 2022, meeting do not include Abbott as in attendance.

In response to Abbott’s January 20, 2022, correspondence requesting that a process be in place “to accommodate councillors while using the telephone for call-in meetings attending,” the Town passed a resolution limiting the ability of councillors to attend by phone. [ 22 ] The regulation stipulated that a councillor could only attend a meeting by phone or video call if their circumstances were: “working out of town, medical reasons or child care” (the “ Remote Attendance Policy ”).

The Remote Attendance Policy explicitly stated: “This policy does not include vaccination status.” [ 23 ] At the January 31 meeting, Council also passed a motion, in accordance with the Vaccination Policy, that Abbott “is removed from committees until he receives his Vaxpass or brings a letter from his doctor exempting him from getting the vaccination.” [ 24 ] Abbott sent emails requesting clarification on his ability to speak at the upcoming regular February meeting on January 31, February 4, and February 7, 2022.

On February 8, 2022, he received a response from the Town Receptionist directing him to “review the vax pass policy.” Abbott reiterated his request for accommodation by phone call-in. The Town Receptionist advised there was no obligation to accommodate councillors if “they are breaking the policies and procedures in place.” [ 25 ] On February 15, 2022, Abbott emailed the Town Clerk requesting again that Council make an exception to allow him to call into meetings and discuss matters.

In this correspondence, Abbott also requested that he be given leave from Council to be absent at meetings should the Town refuse to accommodate him. He specifically asked, “I would like the council to make [a] motion that I not be subject to the three-month termination of my seat, and I be allowed to return after the vax pass status has expired” [emphasis added] (hereinafter referred to as “ Abbott’s Request ”).

In his email, he noted five provinces had already announced the end of vaccine passports. [ 26 ] On February 22, 2022, Abbott again requested that the Town Clerk provide him with details on how he could speak during the upcoming meeting and “reading aloud” correspondence he submitted on municipal issues. [ 27 ] The Town Clerk responded to his correspondence on February 23, 2022. In her response, she advised that all correspondence would be included in the Public Meeting, but that the reading aloud of correspondence was in the discretion of Council.

Regarding Abbott’s request to participate remotely, the Town Clerk responded: “No, as per the rules of procedure brought in by this Council there will be no Virtual attendance unless it falls under the outlined rules/procedures.” Abbott on the same day replied by email to the Town Clerk raising his concerns that Council will “read aloud” his correspondence. [ 28 ] Council held the February regular meeting during the evening of February 23, 2022. Abbott connected to the meeting through the Google Meet link posted to the Town’s Facebook page.

Abbott in his Affidavit states while the technology enabled him to speak at the meeting, Council instructed participants that they were not permitted to speak. He respected the direction provided by the Town and did not speak. [ 29 ] The Minutes do not indicate Abbott as attending the meeting.

Although the Minutes indicate that Council read and discussed Abbott’s correspondence on certain municipal issues at this meeting. [ 30 ] The Minutes record, under “[e]mailed correspondence from Councillor Abbott” and the heading identified as “Second Email – VAXPASS,” Council discussed their ability to enforce the vaccine policy until the government directed them to lift it. The Minutes state: Correspondence is discussed and Deputy Mayor Jason Chaulk states in response to this email the Government of NL are not lifting the VAXPASS Mandate until March 14, 2022.

Minister Derrick Bragg has advised the Town that the VAXPASS will still be in effect for Government and Municipal Offices and as a Municipality with a VAXXPASS [ sic ] Policy in place we can still enforce it until it is passed to remove it. [ 31 ] There is no reference in the Minutes to a discussion of Abbott’s Request. [ 32 ] The Town filed an Affidavit of the current Town Clerk, Amber Littlejohn. Prior to accepting the position of Town Clerk on March 13, 2022, Littlejohn was the Town’s receptionist and the Minutes record her attendance at the subject Council meetings.

Littlejohn confirmed (at para. 19 of Affidavit), “I do not recall any discussion about the “three-month termination.” Littlejohn’s Affidavit further states (at para. 21), “It is my recollection that the above discussion was the sole consideration of Abbott’s February 15, 2022, email and that following this discussion, the meeting moved onto further topics of discussion.” [ 33 ] Before subsequent meetings of Council on March 8 and April 5, 2022, Abbott emailed the Town Clerk to request the agenda and that he be able to attend in person or speak at the meetings.

Abbott connected to the meetings through the Google Meet link posted to the Town’s Facebook page.

[ 34 ] At the April 5, 2022 meeting, Council passed a resolution that correspondence would not be read aloud unless requested by the Council as a whole.

Accordingly, no correspondence from Abbott on municipal issues was read and discussed at this meeting [ 35 ] The Mayor, on behalf of the Town, wrote Abbott by letter, dated April 29, 2022, to inform him that his seat as a councillor for the Town has been vacated in accordance with section 206(1)(f)(ii) of the Municipalities Act . issues [ 36 ] With this background, I must decide whether the Town Council properly removed Abbott from Council and declared his seat vacant pursuant to section 206(1)(f)(ii) of the Municipalities Act . [ 37 ] Counsel for Abbott identified the following issues for consideration: 1) What is the scope of an appeal under

section 410 of the Municipalities Act and the applicable standard of review? 2) Was Abbott properly removed from Council having regard to: (

a) the Town Council not addressing Abbott’s Request? (

b) Abbott continued to attend meetings remotely? (

c) the Town’s inability to pass regulations with the intended deliberate effect of rendering Abbott unable to attend meetings? (

d) the violation of Abbott’s Charter rights by the Town’s policies and procedures? 3) What is the appropriate order as to costs? Analysis 1) What is the scope of an appeal under

section 410 of the Municipalities Act and the applicable standard of review? [ 38 ] Section 410(6) authorizes the Court to “hear the appeal and the evidence brought forward by the appellant and the council in a

summary manner.” The Court may “(

a) uphold the vacancy or reinstate a councillor” or “(

c) make another decision … appropriate in the circumstances.” The statute, therefore, confers a more expansive role on the Court than any constraints imposed by appellate standards of review: Lynch v. St. John’s (City) , 2020 NLCA 31 , (at para. 74 ) and see Stack J’s discussion in Butt v. Town of Carbonear , 2018 NLSC 152 , (at paras. 78–80 ). [ 39 ] The appeal proceeded as a hearing de novo with the parties filing affidavit evidence in addition to the Record of the Authority and Supplementary Appeal Record that the Town filed. Abbott filed his own supporting affidavit.

The Town filed Affidavits of Littlejohn and Mayor Jason Chaulk. [ 40 ] I am not reviewing a “decision” of Council, since no “decision’ was ever made by Council on Abbott’s Request. It is open on the evidence and the law for the Court to make a just and appropriate determination without any deference to the manner in which the Town Council handled Abbott’s Request. [ 41 ] In any event, to the extent the appeal turns on a matter of statutory

interpretation, correctness is the applicable standard of review: Vey v. Newfoundland and Labrador Pharmacy Board , 2022 NLCA 55 , at para. 12 . [ 42 ] On a material breach of procedural fairness that goes to the essence of the dispute, there is no need to engage in a standard of review analysis and the resulting vacation of Abbott’s seat on Council cannot stand: Aylward v. Law Society of Newfoundland and Labrador , 2013 NLCA 68 , (at para. 19 ) and Neary v. Portugal Cove-St. Philips (Town) , 2013 NLCA 47 , (at para. 18 ). 2) Was Abbott properly removed from Council having regard to: (

a) The Town Council not addressing Abbott’s Request? [ 43 ] Council did not make a motion or take a vote on Abbott’s Request. Without Council making a decision on Abbott’s Request,

section 206 was never engaged. The Exercise of Statutory

Interpretation [ 44 ] Section 206(1) states: “The office of a councillor becomes vacant where (

f) without leave of the council , he or she (ii) does not attend regular public meetings of the council for 3 successive months.” [underlining added] [ 45 ] I interpret Section 206(1)(f)(ii) to mean when a councillor requests a leave of absence for any reason then Council must act on the request before the

section is engaged. This statutory

interpretation finds support in Callahan v. St. George’s (Municipality) , 2012 NLTD(G) 82, regarding a councillor having proper notice of meetings before the provision can operate. Justice Adam concluded (at para. 15), “[s]ection 206 does not state that notice of a meeting is a prerequisite before the

section applies.” However, Adam J read in a notice requirement since the municipality had adopted a procedural rule respecting notice of regular Council meetings. I am reading in the requirement for Council to act upon and make a decision on a councillor’s “leave” request. [ 46 ] The consequence of vacating a councillor’s seat is a serious deprivation of a resident’s right to participate in local government and democracy. In Butt (at para. 79 ), Justice Stack aptly described the vacating of a councillor’s seat as “close to capital punishment in the world of municipal politics.”

[ 47 ] Council must therefore strictly comply with the true intent of the statutory provision before the provision operates. Council had the discretionary authority to deny Abbott’s Request because of the permissible wording of the

section – “without leave of the council.” What Council did not have the authority to do is completely fetter discretion and not make a decision on Abbott’s Request. When the statute gives a municipality the authority to make a decision, and when specifically asked to do so, it must perform its duty: Ian MacF. Rogers, The Law of Canadian Municipal Corporations , 2nd ed. by Greg Levine, looseleaf (Canada: Carswell, 1988) at 63.25. [ 48 ] I must take a remedial

interpretation of the legislation that fairly and justly accords with the purpose of the provision and blunt policy choice of the Legislature to vacate the office of a councillor automatically upon the occurrence of missing three successive months of meetings.

Section 16 of

Interpretation Act , R.S.N.L. 1990, c. I-19 states: Every Act and every regulation and every provision of an Act or regulation shall be considered remedial and shall receive the liberal construction and

interpretation that best ensures the attainment of the objects of the Act , regulation, or provision according to its true meaning. [ 49 ] The purpose of the statutory provision is to nullify the right of a councillor to sit on Council for failing to attend regular meetings of Council for the prescribed period. [ 50 ] The seriousness of the detriment caused to Abbott’s democratic rights by the operation of the Act justifies the Court taking a statutory

interpretation that considers the contextual circumstances giving rise to the matter. The fluidity of the legitimate government measures put in place to protect citizens from the spread of the COVID-19 virus and variants required Council to address Abbott’s Request and his reasons for wanting an exemption. It is noteworthy that all NL Government Special Orders were repealed in March 2022 and before Abbott missed three successive months of regular meetings of Council.

Since there was no motion or discussion on the motion before Council, the Court is not in a position to assess “the particular context” and show a “deferential standard” on a decision or administrative action that the Council never did take: Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , at para. 23 . [ 51 ] It would lead to an absurd

interpretation of the Act to permit the vacation of a councillor’s seat through mere inadvertence on the part of Council. By way of example, a counsellor making a legitimate request for medical reasons to be exempt from the three- month prescribed period would have their seat vacated, if Council through inadvertence failed to put the request on the agenda of Council and decide on the request. Surely, the Legislature could not have intended that to be the result of mere inadvertence on the part of Council.

Just as inadvertence cannot engage the automatic seat vacation neither can ignoring Abbott’s Request for whatever reason. [ 52 ] Counsel for the Town argues that by Council not responding or granting Abbott’s request, the Town de facto or in effect made a decision to deny his request. Alternatively, counsel argues that Abbott could have applied for the prerogative writ of mandamus , seeking a court order directing the Town to deal with his request.

These arguments are not sustainable for pragmatic and practical reasons, and I will explain, for reasons relating to procedural fairness. [ 53 ] I reject that Council made a de facto decision by not granting Abbott’s Request. The practical difficulty with this argument is the prescribed period passes, and it is then too late to prevent the automatic operation of the Act . That is not a fair and sensible

interpretation of how

section 206 should operate. [ 54 ] Likewise, it is unfair and impractical to expect Abbott or any councillor to bring an application seeking mandamus while waiting for Council to grant their leave exemption. That would put an unnecessary cost and burden on councillors, and unjustifiably involve court proceedings, when it is the obligation of Council to decide on the request. The Duty of Procedural Fairness [ 55 ] In Baker v.

Canada (Minister of Citizenship & Immigration ), 1999 SCC 699 the Supreme Court of Canada discussed in detail the requirements of procedural fairness in the context of the administrative decision-making process: (at paras. 21–27). [ 56 ] The requirements of procedural fairness must be flexible and context-specific. The Supreme Court found that guidance must be taken from the particular statute, as well as the following factors: 1. The nature of the decision being made and process followed in making it; 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3.

The importance of the decision to the individual or individuals affected; 4. The legitimate expectations of the person challenging the decision; and 5. The choices of procedure made by the agency itself. [ 57 ] The import of Council not making a decision on Abbott’s Request has significant ramifications on the duty of procedural fairness owing to Abbott.

Without a decision of Council, the Court is not in a position to “review” and apply the Baker factors to “the decision.” [ 58 ] Nevertheless, the Record reveals Council failed to accord procedural fairness to Abbott in not following the established practice of Council and treating Abbott’s Request differently than other requests from councillors for a leave of absence. The Council Minutes of January 31, 2022, indicate Mayor Steele (as he then was) sent a letter to the Town asking for a three-month medical/personal leave of absence.

Council moved and carried Motion 2022-27 to accept Mayor Steele’s letter and approve the leave of absence. Council failed to follow its own procedure on Abbott’s Request and did not afford Abbott any such similar treatment by moving a motion. Council either ignored or inadvertently failed to consider his request. Whatever the reason may be, it is not material to Council’s failure to follow their own previously adopted procedure.

[ 59 ] Similarly, in Callahan , Adam J found a breach of natural justice because the municipality failed to follow its own rules of procedure on providing notice of meetings. Although the Town had no formal rules of procedure on dealing with requests for a leave of absence, they had established a precedent for such requests and had an obligation to follow the procedure for Abbott’s Request. [ 60 ] Furthermore, Council deprived Abbott of the opportunity to challenge a denial of his request by way of judicial review.

If Council denied Abbott’s Request, Abbott would have had the benefit of a judicial review to challenge both how the Council arrived at a decision, including any duty to hear from Abbott, and the outcome of the decision on the reasonableness standard of review: ( Catalyst Paper Corp. , at para. 19 ; Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 , at para. 19 ; and Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at paras. 89 and 137 ). [ 61 ] A denial of procedural fairness invalidates Council’s reliance on

section 206 to vacate Abbott’s seat. (

b) Abbott continued to attend meetings remotely? [ 62 ] I find Abbott continued to attend Council meetings remotely. [ 63 ] The Town Council, however, had discretion to adopt the “Remote Attendance Policy.” Section 24(2.1) of the Municipalities Act states: “A town council may allow a councillor to participate in a meeting by electronic means where the electronic means enables the councillor to listen to the proceedings and to be heard.” [ 64 ] The reasonableness of the “Remote Attendance Policy” and any unfairness in its application to Abbott is not properly before the Court. (

c) The Town’s inability to pass regulations with the intended deliberate effect of rendering Abbott unable to attend meetings? [ 65 ] I make no finding or comment on the Town’s ability to pass regulations with the intended effect of rendering Abbott unable to attend meetings. [ 66 ] I do accept Abbott’s position that the Vaccination Policy and the Remote Attendance Policy had the effect of excluding an unvaccinated person such as Abbott from attendance at Council meetings in person or remotely.

I also accept the Town’s submission that the Court cannot engage in judicial review of the Town’s policies and bring to bear a standard of review of the policies for reasonableness. While I recognize the Town’s submission that courts must show considerable deference in how municipal administrative bodies control their own process and proceedings, I make to conclusion on the reasonableness of the Town’s policies in the particular circumstances of this case. [ 67 ] Since Abbott has succeeded in his appeal, I am not prepared to go further than the narrow grounds upon which I have allowed the appeal.

He has achieved the relief he has sought – reinstatement to Council. Review of policy decisions of Council, and the merits and extent of the Court’s role in interfering with policy decisions, is more appropriately left in the context of a judicial review application. (

d) The violation of Abbott’s Charter rights by the Town’s policies and procedures? [ 68 ] Likewise, entering into a determination whether the Town’s policies and procedures violated Abbott’s freedom of expression rights under the Charter is not appropriate for this appeal. Section 410(6) specifically stipulates that the appeal is to be considered “in a

summary manner .” I would have expected Abbott to bring any Charter challenge by way of a judicial review application or statement of claim to ensure all necessary evidence and parties were before the Court. [ 69 ] The Town raised objection that Abbott’s argument that the Town violated his Charter rights cannot be heard, since Abbott failed to give notice to the Attorney General for Canada and the Province (as required by

section 57 of the Judicature Act , R.S.N.L. 1990, c. J-4 ) when there is a constitutional challenge to the validity or operation of legislation. Counsel for Abbott argued notice was not required because the challenge was not to legislation but to a regulation, by-law or resolution of “a local authority”: section 9(1) (

e) of Statutes and Subordinate Legislation Act , R.S.N.L. 1990, c. S-27 . [ 70 ] Regardless of whether notice was required to be given under the Judicature Act , I would not have adjudicated on a Charter challenge without asking counsel for Abbott to put the Attorney General for the Province on notice.

More specifically, I would have directed counsel for the parties to inquire whether the Department of Municipal and Provincial Affairs had interest in intervening through the Attorney General either under Rule 7.05 as a party or Rule 7.06 as amicus curiae (“friend of the Court for the purpose of assisting it”), given the broader implications of a Charter challenge to the Town’s vaccination policies for municipalities and public bodies. costs 3) What is the appropriate order as to costs? [ 71 ] Abbott is seeking full indemnity costs on a solicitor-client basis.

He submits, “the Town essentially weaponized the Act to force the removal of an elected councillor.” [ 72 ] In accordance with section 410(7) of the Municipalities Act and considering the factors in Rule 55.04(4), and in particular (b) “the importance of the issues” and (c) “novelty of the issues,” I am exercising my discretion to award Abbott, as the successful party, partial indemnity costs in the mid-range of the Scale of Costs. [ 73 ] The parties agree there was no prior judicial

interpretation and direction on the meaning and effect of the particular wording of

section 206(f)(ii) in question. However, given the importance of the issue of vacating the seat of a democratically elected councillor, and that Abbott put the Town on repeated notice of potential legal action for ignoring his request or failing to accommodate him, the Town would have been well-advised to seek directions from the Department of Municipal and Provincial Affairs or legal advice. The Record

does not reveal the Town Council seeking any such directions or legal advice on Abbott’s Request. [74] There is nothing in the conduct of the Town Council to give rise to an order of solicitor-client costs. Such costs are intended tocompensate on a full-indemnity basis when there has been “reprehensible, scandalous, or outrageous conduct” on the part of a party:(Young v. Young, (SCC), [1993] 4 S.C.R. 3, at para. 260; and Holloway v.

Holloway, 2001 NFCA 17, at para. 69.) TheTown’s conduct does not warrant an award of solicitor-client costs. [75] The councillors are volunteers doing their best to serve their Town and its residents. I have found the Town Council erred byfailing to properly apply the statutory provision and to accord a basic level of procedural fairness owed to Abbott. An erroneousstatutory

interpretation or failure to adhere to a previously undecided element of procedural fairness entitles Abbott to reasonableindemnity costs, but not solicitor-client costs or costs on the higher end of the Scale. [76] Abbott will have his costs taxed on Column 3. conclusion and order [77] The Town Council in failing to take a decision on Abbott’s request did not comply strictly with the true intent of the statutoryprovision and the duty of procedural fairness owed to Abbott. [78] The appeal is granted and Abbott is reinstated as a councillor to the Town Counsel of Musgrave Harbour in accordance withsection 410(1)(6)(

a) of the Act. Abbott shall have his taxed costs payable by the Town on Column 3 of the Scale of Costs. A Final Comment to Counsel [79] I am grateful to counsel for their thorough written submissions and thoughtful oral submissions. I raised points and challengedcounsel for both parties during oral submissions. They handled my interjections with courtesy and strong advocacy for their respectivepositions. I am also impressed that counsel had their articling clerks attend with them – the Court welcomes and encourages articlingclerks and young lawyers to have more exposure to Courtroom advocacy. _____________________________ Glen L.C. Noel Justice