Derrick G. Dunne Applicant And: Michelle Patten First Defendant And: Town Council of the Town of Grand Bank Second Defendant, 2022 NLSC 143

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Dunne v. Patten , 2022 NLSC 143 Date : October 4, 2022 Docket : 202206G0069 Between: Derrick G. Dunne Applicant And: Michelle Patten First Defendant And: Town Council of the Town of Grand Bank Second Defendant Before: Justice Peter A. O'Flaherty Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: June 23, 2022

Summary: The Applicant was disqualified from being nominated as a candidate for councillor in a municipal by-election because he was employed by the council under subsection 15(2) (

b) of the Municipal Elections Act . The Applicant applied for an order that he is qualified to be nominated as a candidate for councillor in the by-election. Held: A declaration was made that , on a proper

interpretation of the applicable legislation, the Applicant was not employed by the

council under subsection 15(2)(

b) of the Municipal Elections Act and he is qualified to be nominated as a candidate for councillor in themunicipal by-election. Appearances: Derrick G. Dunne Appearing on his own behalf Cindy E. Picco Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Archean Resources Ltd. v.Newfoundland (Minister of Finance), 2002 NFCA 43; R. v. Chaulk, 2021 NLCA 49; R. v. Gyles (2003), 44 M.P.L.R. (3d) 234, 59W.C.B. (2d) 60 (Ont. C.A.) STATUTES CONSIDERED: Municipal Elections Act, S.N.L. 2001, c. M-20.2;

Interpretation Act, R.S.N.L. 1990, c. I-19;Municipalities Act, S.N.L. 1999, c. M-24 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D. REASONS FOR JUDGMENT O'Flaherty, J.: INTRODUCTION [1] The issue in this proceeding is whether, on a proper

interpretation of the Municipal Elections Act, S.N.L. 2001, c. M-20.2, theApplicant, Derrick Dunne, is qualified to be nominated as a candidate for councillor in a municipal by-election. [2] The Second Respondent, (the “Town Council”), ordered a by-election to be held on June 16, 2022, to fill a vacancy resultingfrom the death of the Deputy Mayor. The Applicant submitted his nomination papers on the nomination day, May 26, 2022. The FirstRespondent, the returning officer for the by-election, disqualified Mr. Dunne from being nominated as a candidate for councillor onMay 26, 2022. [3] It is not disputed that Mr.

Dunne met the qualification criteria to be nominated as a candidate for councillor in the municipalby-election under subsection 15(1) of the Municipal Elections Act. The dispute is about whether the Applicant’s employment on May 26,2022, disqualified him from being a candidate for councillor under subsection 15(2). [4] On June 8, 2022, the Applicant was granted an interlocutory injunction to restrain the returning officer and the Town Councilfrom proceeding with the by-election pending a decision on the qualification of the Applicant. [5] Mr.

Dunne has been employed by Grand Bank/Fortune Ambulance Service Inc. (the “Corporation”) as a Primary CareParamedic since 1998. The Corporation provides ambulance services on the Burin Peninsula and it is the successor to a joint ambulancecommittee established by the neighboring towns. Under its by-laws, the Board of Directors of the Corporation must be made up of themayors of Grand Bank and Fortune, and two councillors from each of the respective town councils. [6] The written reasons for disqualification provided to Mr.

Dunne stated that all the activities and operations of the Corporationare overseen by the Board of Directors, and the returning officer therefore concluded he was an employee of the Town Council. Becausehe was an employee of the Town Council, the returning officer concluded Mr. Dunne was therefore not qualified for nomination. [7] Subsection 15(2)(

b) of the Municipal Elections Act prohibits a person from being nominated as a candidate for councillor“while he or she is employed by the council.” Mr. Dunne says that the facts show on May 26, 2022, he was employed by theCorporation, and he was not employed by the Town Council, so he was improperly disqualified under subsection 15(2)(b). TheRespondents argue that because Mr. Dunne was employed by an entity that they allege is controlled by the Town Council he was“employed by the council” and therefore properly disqualified by the returning officer from being a candidate for councillor in the by-election.

[8] For the reasons that follow, on my

interpretation of subsection 15(2)(b), I find that on May 26, 2022, Mr. Derrick Dunne wasnot employed by the Town Council. [9] It follows that the Applicant is qualified to be nominated as a candidate for councillor in the municipal by-election ordered bythe Town Council. [10] The Applicant is entitled to a declaration accordingly. THE ISSUE [11] The issue I must decide is whether Derrick Dunne was employed by the Town Council on May 26, 2022, and thereforeproperly disqualified from nomination as a candidate under subsection 15(2)(

b) of the Municipal Elections Act. ANALYSIS The Legislative Provision [12] The starting point is the words of subsection 15(2) of the Municipal Elections Act. This is the provision relied upon by the FirstRespondent to disqualify the Applicant from being nominated as a candidate for councillor in the by-election: 15(2) A person is not qualified to be nominated as a candidate for councillor (

a) while he or she holds an office under the council to which a salary or remuneration payable out of the funds of the municipality isattached; (

b) while he or she is employed by the council; and (

c) where he or she is the chief administrative officer of an agency or body established by the council and that agency or body has anannual operating budget that must be approved by the council for which that officer seeks nomination as a candidate. … 15(7) Notwithstanding subsection (2), a person referred to in that subsection who is not a clerk, manager or department head, excluding avolunteer department head, with a council may request, and the council shall grant to that person, a leave of absence in order for thatperson to be nominated as a candidate for council. 15(8) A person to whom a leave of absence is granted under subsection (7) who is elected as a councillor shall resign from his or heremployment with the council before taking his or her oath or affirmation of office as a councillor.

The Positions of the Parties [13] The Applicant argues that subsection 15(2) of the Municipal Elections Act should be read conjunctively such that all three sub-clauses of that subsection must be met to disqualify an individual from nomination as a candidate for councillor. [14] Mr. Dunne argues he was not disqualified from nomination under subsection 15(2)(

a) or (c). He does not hold any “officeunder the council” to which a salary is attached which is payable out of the budget of the Town Council. He is not the “chiefadministrative officer of an agency or body” established by the Town Council with an annual operating budget that must be approved bythe council. [15] In the Applicant’s view the issue under subsection 15(2)(

b) is straightforward. He submits that subsection 15(2)(

b) mandatesonly the disqualification of a person who is nominated as a candidate “while he…is employed by the council.” As the facts show he wasemployed by the Corporation, and not by the Town Council, Mr. Dunne says that he was not nominated while he was employed by theTown Council and therefore he was not subject to disqualification under subsection 15(2)(b). [16] The Respondents argue that subsection 15(2) of the Municipal Elections Act should be read disjunctively and they rely only onsub-clause (

b) for the disqualification of Mr. Dunne on May 26, 2022. The Respondents accept that the grounds for disqualification insub-clauses (

a) and (

c) did not apply to him. [17] The Respondents agree that the issue under subsection 15(2)(

b) is whether the Applicant was nominated as a candidate whilehe was “employed by the council.” They argue that the answer turns on who controls the Board of the Corporation. While the argumentis not expressed precisely in these terms, the Respondents in effect argue that the words “the council” in subsection 15(2)(

b) must beread to include entities controlled by the “the council” such that a person employed by a controlled entity is disqualified from beingnominated as a candidate for councillor. [18] The Respondents acknowledge on the facts that the Applicant is employed by the Corporation, and not by the Town Council.They argue that because the Board of the Corporation is responsible for managing the employees, and the Board is made up of an equalnumber of elected members of the councils of Grand Bank and Fortune, the Town Council controls the Corporation.

Therefore, by resortto the common employer doctrine from employment law, they argue the Applicant was also employed by the Town Council and wasproperly disqualified on May 26, 2022. Statutory

Interpretation [19] The modern rule of statutory

interpretation was confirmed in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1

S.C.R. 27, at paragraph 21 : 21 Although much has been written about the

interpretation of legislation …, Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [ 20 ] This approach has been consistently applied to the

interpretation of provincial legislation (see: Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 ). The Court of Appeal of Newfoundland and Labrador has described the modern rule as a contextual approach to

interpretation that entails going beyond the ordinary or plain meaning of the words and language being considered, situating the words and language within a specific context, and interpreting them in a manner that is informed by this context (see: R. v. Chaulk , 2021 NLCA 49 , at para. 18 ). [ 21 ] This approach to the

interpretation of statutes is also in accordance with

section 16 of the

Interpretation Act , R.S.N.L. 1990, c. I-19 , which requires the courts to interpret every Act and every provision of

an Act so that it best ensures the attainment of its objects according to its true meaning. [ 22 ] There has been little judicial consideration of the proper approach to the

interpretation of municipal election statutes across Canada however there is no reason to conclude that this approach would not apply to municipal election laws. This is the law I will follow to determine the proper

interpretation of subsection 15(2) (

b) of the Municipal Elections Act . Subsection 15(2) of the Municipal Elections Act [ 23 ] The modern approach directs the court to interpret the words of the provision at issue in the context of the Act as a whole. As I read Archean and

section 16, in interpreting subsection 15(2) I should adopt an approach that reconciles the language used in the provision with the broader objects of the legislation so as to rectify the problem or mischief to which the legislative act appears to have been directed. [ 24 ] I must therefore consider the textual meaning, the broader objects of the legislation, and the problem or the “mischief” to which the legislature directed subsection 15(2) as a remedy.

I must infer, based on the relevant sources, what the specific objective of the legislative provision in subsection 15(2) must have been. [ 25 ] The Municipal Elections Act contains a code governing the conduct of elections held by municipal councils in the province.

The legislation deals with such matters as the timing of general elections and by-elections, the power of election officials, who has the right to vote, who has the right to be a candidate, and how election results may be challenged. [ 26 ] The broad object of the legislative scheme is to provide for the uniform and effective conduct of municipal elections in the province.

By doing so, the legislation promotes the effective operation of municipal government and preserves public confidence in the administration of municipal government. [ 27 ] At the heart of this case is the question of who has the right to be a candidate for councillor and the statutory grounds for disqualification based on employment. [ 28 ] The right to run for municipal office provides local residents with the opportunity to play a meaningful role in the political life of the local community by presenting certain ideas and opinions to the electorate as a viable policy option.

Subsection 15(1) outlines that a person is qualified for nomination as a candidate for councillor if he or she is eligible to vote in the election, is ordinarily resident in the municipality for 30 days prior to the nomination date and is not in arrears of taxes or charges to the municipality. [ 29 ] A resident may be disqualified on enumerated grounds. Subsection 15(2) deals with disqualification to be a candidate for councillor based on employment.

Subsections 15(3) and 15(5) deal with disqualification for prior removal of the candidate from office and by reason of holding federal, provincial or judicial office. [ 30 ] Sub-clauses (a), (b), and (

c) of subsection 15(2) list three specific circumstances in which a person will be disqualified from nomination as a candidate for councillor because of employment.

These are first, while a person is an “office holder” (one who holds an “office under the council” to which a salary is attached which is payable out of the budget of the council); secondly, while a person is “employed by the council”; and, thirdly, where a person is a “chief administrative officer” of any agency or body established by the council (provided that agency or body has an annual operating budget that must be approved by the council). [ 31 ] An exception to disqualification for employment is provided in subsection 15(2) (7) whereby a person who is not a clerk, manager or department head with a council may request a leave of absence and the council must grant the person a leave of absence, in order for that person to be nominated as a candidate for council.

Subsection 15(2) (8) provides that, upon election, the person granted leave under 15(2)(7) “shall resign from his or her employment with the council.” [ 32 ] I have no difficulty concluding that the rationale for disqualification because of employment in subsection 15(2) is the potential of a conflict of interest arising from the employment of the candidate. [ 33 ] Based on the wording, there is a slightly different rationale for disqualification for employment in each sub-clause.

Under sub- clause (a), an “office holder” is disqualified to avoid a conflict arising in relation to council business about the office he or she holds. Under sub-clause (

b) a person “employed by the council” is disqualified to avoid a conflict arising in relation to council business about the conditions of employment or the management and direction of the workforce. Under sub-clause (

c) a “chief administrative officer” is

disqualified to avoid a conflict arising in relation to council business about the board or agency he or she leads. [ 34 ] I conclude that the problem or the “mischief” to which the legislature directed subsection 15(2) as a remedy is the potential for impairment of effective operation of a municipal council, and loss of public confidence in the administration of a municipal council, if a person is permitted to be nominated as a candidate for councillor while he or she holds one of the enumerated types of employment outlined in sub-clauses (a), (

b) and (c). [ 35 ] I infer that the objective of subsection 15(2) is the avoidance of potential conflicts of interest arising for councillors due to employment in the circumstances outlined in sub-clauses (a), (

b) and (c). This is clearly consistent with the objects of the Municipal Elections Act which are to promote effective municipal government and preserve public confidence in the administration of municipal government. Is subsection 15(2) to be read conjunctively or disjunctively? [ 36 ] The Applicant argues that subsection 15(2) of the Municipal Elections Act should be read conjunctively such that all three sub- clauses must be met to disqualify a person from nomination as a candidate for councillor.

The Respondent argues that subsection 15(2) must be read disjunctively as to do otherwise would result in such narrow grounds for disqualification for employment that it would amount to an absurdity. I will address this question next. [ 37 ] The Applicant’s argument in favor of a conjunctive

interpretation of subsection 15(2) is based on textual meaning. The subsection provides for the legislative remedy first, that a person is disqualified from nomination as a candidate for councillor, followed by the three sub-clauses which list enumerated employment. The three sub-clauses are connected, after the second sub-clause, by the word “and.” On first blush, I find that a conjunctive

interpretation of subsection 15(2) is supported by a literal reading of the text of the statutory language. [ 38 ] The modern approach to statutory

interpretation requires that I situate the words and language within the specific context of the scheme and object of the Municipal Elections Act and consider whether a conjunctive reading of subsection 15(2) would best ensure the attainment of the object of the provision. [ 39 ] By reading the three sub-clause together as a single criterion for disqualification for employment, the provision would only apply to disqualify a person from being nominated as a candidate for councillor while he or she is at the same time an “office holder of council,” is “employed by council” and is the “chief administrative officer of an agency or board controlled by council.

This would be such a narrow criterion for disqualification for employment that it would rarely, if ever, apply on the facts of a concrete case. [ 40 ] Finding that subsection 15(2) provides for a disqualification criterion that is only applicable where a person meets the requirements of all three sub-clauses would also permit a person disqualified for employment under a single sub-clause to be a candidate for councillor. For example a person disqualified under sub-clause (

b) would be permitted to be nominated as a candidate for councillor if the person is not at the same time an office holder and the administrative head of an outside board or agency funded by council. This would defeat the objective of subsection 15(2) . [ 41 ] I find that a conjunctive

interpretation would not best ensure the attainment of this objective of subsection 15(2) because it would permit outcomes that would be contrary to the intention of the legislature. [ 42 ] In light of the objective of the provision in the statute, and reading the words of subsection 15(2) in the entire context of the Municipal Elections Act , I find that a conjunctive reading of the subsection is not a reasonable or acceptable

interpretation. [ 43 ] I conclude that subsection 15(2) must be read disjunctively. This means that a person will be disqualified from nomination as a candidate for councillor under subsection 15(2) of the Municipal Elections Act if he or she holds the employment enumerated under any one of the three sub-clauses of 15(2). The proper

interpretation of subsection 15(2)(b) [ 44 ] To interpret subsection 15(2) (

b) I must consider the textual meaning of the provision, I must situate the words and language within their specific context, and I must interpret them in a manner that is informed by this context. The goal of the exercise is to arrive at the true meaning of subsection 15(2) (

b) which is the meaning that would best ensure the attainment of the object of the provision. [ 45 ] The Applicant submits that the words “employed by the council” in subsection 15(2) (

b) refer only to a person employed by the Town Council. Mr. Dunne submits that the words of the provision, by their grammatical and ordinary meaning, do not extend to a person employed by the Corporation. His position is that unless he is specifically disqualified under subsection 15(2) (

b) of the Municipal Elections Act the voters of the municipality must decide whether or not to elect him as a councillor. [ 46 ] The Respondents do not directly refer to the textual meaning of the language of subsection 15(2) (

b) in legal argument. Instead, the Respondents focus on the objective of subsection 15(2) (b), which they say is the avoidance of conflicts of interest arising from employment, and argue that because the Town Council controls the Corporation the same kind of conflict of interest would result from Mr. Dunne’s nomination and election.

Therefore, by reference to the common employer doctrine of employment law the Respondents submit that the court should conclude the Applicant is employed not only by the Corporation but also “employed by” both the Town of Grand Bank and the Town of Fortune (see: Respondent’s Trial Brief, paragraphs 32, 39) [1] . [ 47 ] Turning to the grammatical and ordinary meaning of the words “employed by the council” in subsection 15(2) (b), I find that the ordinary meaning of the word “by” in the phrase “employed by the council” is “through the act of” or “by the action of” the council.

The ordinary meaning of the statutory language imports a direct action of employment by the council. I find that the grammatical and ordinary meaning of a person “employed by the council” is a person directly working for the council under a contract of employment. I find that the grammatical and ordinary meaning of subsection 15(2) (

b) does not include a person working under a contract of employment for an employer “controlled” by the council.

[ 48 ] That does not however conclude the analysis. In terms of the broader context of the remaining sub-clauses of subsection 15(2) and the Municipal Elections Act I must consider whether, situated in its specific context, the meaning of the provision has been extended to include a person who is working under a contract of employment for another employer that is “controlled” by the council. [ 49 ] The language of subsection 15(2), read in context, shows that the legislature enumerated three specific types of employment in which disqualification from nomination would automatically result. While the language of sub-clause (

c) acknowledges that a council may establish a board or agency for which it is responsible to approve a budget, the legislature did not disqualify a person employed by such a board or agency from nomination even though the chief administrative officer of such a board or agency is disqualified based on his or her employment. The language of subsection 15(2) does not support an inference that sub-clause (

b) must include a person who is working under a contract of employment for another employer that is “controlled” by the town council. [ 50 ] In terms of the scheme of the Act, subsection 2(

e) of the Municipal Elections Act “council” includes a council of a city and a council as defined in the Municipalities Act , S.N.L. 1999, c. M-24 . The definition of “council” in the latter legislation means, unless the context indicates otherwise, a “town council” continued under that Act. The salient point for the purpose of discerning the true meaning of subsection 15(2) (

b) is that “council” and “town council” as defined in those acts does not include other boards, agencies or entities controlled by the town council. There is nothing in the broader legislative context that supports the

interpretation argued by the Respondents. [ 51 ] I note that the Respondents have not anchored their legal argument directly in the modern approach to the

interpretation of legislation. The Respondents point instead to the existence of a conflict of interest arising from the employment of the Applicant, because they say the Corporation is controlled by the Town Council, and argue based on common employer principles that the language of subsection 15(2) (

b) should be read to find that the returning officer properly disqualified the Applicant from being a candidate for councillor. [ 52 ] I am not persuaded that the broad objective of subsection 15(2) and the reliance on common employer principles can combine to extend the meaning of the words “while he…is employed by the council” under subsection 15(2)(

b) to include disqualification of a person while he is employed by an employer “controlled” by the council. As stated, there is nothing in the language of the provision, or the legislation, that supports this conclusion. [ 53 ] I agree with the Respondents that the broad objective of subsection 15(2) is the avoidance of potential conflicts of interest arising for councillors due to employment. I have found however that subsection 15(2) attains its objective of avoiding potential conflicts of interest due to employment only in the three specific circumstances outlined in sub-clauses (a), (

b) and (c). There is no legislative intent to impose a blanket prohibition on a person’s nomination as a candidate based on conflict of interest for employment under subsection 15(2). [ 54 ] In fact, I note that disqualifying clauses of the type found in subsection 15(2) (

b) of the Municipal Elections Act which restrict the right of citizens to participate in representative democracy are normally strictly construed by the courts. (See: R. v. Gyles (2003), 44 M.P.L.R. (3d) 234, 59 W.C.B. (2d) 60 (Ont. C.A.) ). [ 55 ] Finally, I am not satisfied that the common employer doctrine is a proper source for the statutory

interpretation of subsection 15(2)(b). The doctrine is relied upon, whether at common law or by statute, to attach contractual obligations which are owed to an employee to related entities usually because the entity that formally employs the employee has no assets. The doctrine has no apparent connection to municipal legislation that restricts the right of a resident to stand for municipal office on the grounds of employment by the municipality. The Respondents cannot rely upon the doctrine in this legislative context to extend the meaning of subsection 15(2) (

b) to include disqualification of a person while he is working under a contract of employment for an employer “controlled” by the council. [ 56 ] Based on the foregoing, I conclude that the proper

interpretation of subsection 15(2)(

b) is that a person “employed by the council” means a person directly working for the council under a contract of employment. [ 57 ] Applying this

interpretation to the facts, I must determine whether the Applicant was nominated as a candidate for council while he was “employed by the council.” Was Derrick Dunne employed by the council on May 26, 2022? [ 58 ] The final issue is whether, on a proper

interpretation of subsection 15(2)(b), the Applicant was nominated as a candidate for council while he was employed by the Town Council. [ 59 ] It is not necessary to recite the detailed evidence regarding the employment of the Applicant by the Corporation, Grand Bank- Fortune Ambulance Service Inc., as a Primary Care Paramedic, where he has been employed since June 4, 1998. There is no dispute on the part of the Respondents that the Applicant is employed by the Grand Bank-Fortune Ambulance Service and he is not employed by the Town Council, either as a municipal worker or as a management employee. [ 60 ] Applying my

interpretation of subsection 15(2)(

b) to these facts, I find that because Mr. Derrick Dunne was not directly working for the council under a contract of employment on May 26, 2022, he was therefore not employed by the Town Council on that date. It follows that he was qualified to be nominated as a candidate for councillor in the municipal by-election ordered by the Town Council. DISPOSITION [ 61 ] The originating application did not request a declaratory order under Rule 7.16 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D . I am satisfied that such an order is available under Rule 7.16 for determining , on a proper

interpretation of the applicable legislation, the right of the Applicant to be nominated as a candidate for councillor. [ 62 ] I declare that on May 26, 2022, the Applicant was not employed by the Town Council under subsection 15(2) (

b) of the

Municipal Elections Act . I further declare that the Applicant is qualified to be nominated as a candidate for councillor in the municipal by-election for the Town Council of the Town of Grand Bank. [ 63 ] The Applicant shall have his costs taxed on the Rules of the Supreme Court, 1986 , Appendix 1, Scale of Costs, Column 3. [ 64 ] Order accordingly. _____________________________ Peter A. O'Flaherty Justice