2013 NLCA 47, 2013 NLCA 47

Date: 20130705 Docket: 12/78 Citation: Neary v. Portugal Cove-St. Philip’s (Town Council) , 2013 NLCA 47 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DOUGLAS NEARY APPELLANT AND : TOWN COUNCIL OF THE TOWN OF PORTUGAL COVE-ST. PHILIP’S RESPONDENT Coram: Green C.J.N.L., Rowe and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201101G7664 Appeal Heard: June 10, 2013 Judgment Rendered: July 5, 2013 Reasons for Judgment by Rowe J.A. Concurred in by Green C.J.N.L. and Hoegg JJ.A. Counsel for the Appellant: Self Represented Counsel for the Respondent: John Taylor-Hood

Rowe J.A.: INTRODUCTION [ 1 ] This appeal arises from decisions by the municipal council of Portugal Cove-St. Philip’s (the “municipal council”) to declare that one of its members, Douglas Neary, voted on a motion when he was in a conflict of interest and to declare his seat vacant, pursuant to subsections 206(1) and (2) of the Municipalities Act, 1999 , SNL 1999, c. M-24 (the “ Act ”). Mr. Neary appealed those decisions to a judge of the Trial Division, pursuant to s. 410(6) of the Act . The Trial Division judge dismissed the appeal. Mr. Neary appeals her decision to this Court. FACTS [ 2 ] Mr.

Neary owns land at 137 Beachy Cove Road in Portugal Cove-St. Philip’s (the “municipality”). Before his election to municipal council in 2009, Mr. Neary made various efforts to have this land rezoned, so that it could be developed; the rezoning was never brought to fruition.

Although a proposal to rezone the land was included in an earlier draft of changes to the municipality’s Municipal Plan that was submitted to the Department of Municipal Affairs for approval as required by law, the relevant changes were not approved. [ 3 ] On October 12, 2011, the municipal council considered a town plan prepared by planning consultant Andrew Matheson. The plan contained 52 recommendations; one of them (#28) provided for “spot rezoning” of certain lands within the municipality. The rezoning would facilitate development of the affected land.

A map attached to the recommendations showed the lands to be rezoned. It was later stated (see below) that such lands included those owned by Mr. Neary at 137 Beachy Cove Road. All councilors present, including Mr. Neary, voted for the planning consultant’s recommendations, including the “spot rezoning” set out in recommendation 28. [ 4 ] Mayor William Fagan indicated that shortly after the October 12 meeting he received a telephone call from an “unknown” person to the effect that Mr.

Neary was in a conflict of interest when he voted for the “spot rezoning”, as it favourably affected his land at 137 Beachy Cove Road. [ 5 ] Via e-mail, Mayor Fagan contacted Mr. Matheson, who indicated that Mr. Neary’s land at 137 Beachy Cove Road would be rezoned under recommendation 28. The Mayor prepared a document entitled “Alleged Conflict of Interest – Councillor Doug Neary”. [ 6 ]

Section 206 of the Act reads in part:

(1) The office of a councillor becomes vacant where … (

i) the council declares the councillor's office vacant under subsection (2).

(2) A council shall, by resolution, declare vacant the office of an elected councillor where that councillor (

a) fails to disclose that he or she has a conflict of interest in a matter being discussed by the council; or (

b) discusses or votes on a matter on which he or she has a conflict of interest. [ 7 ] Mr. Neary stated that he did not know that the “spot rezoning” under recommendation 28 affected his property. He further stated that if he had been so aware, he would have recused himself. [ 8 ] At a November 7 “informal” meeting of council convened to discuss the alleged conflict of interest, Mr. Neary asserted that the “spot zoning required” in recommendation 28 was unclear as to which properties were intended to be included in it and requested that the matter be “discussed in detail” with Mr.

Matheson on his return from vacation on December 5. Mr. Neary said this would “clear things up”. [ 9 ] On November 8, at a meeting of council, Mr. Neary was informed that motions would be forthcoming to declare him in a conflict of interest and to vacate his seat on council. He “insisted” that Mr. Matheson be present. At a council meeting on November 21, Mr. Neary again requested that the matter await the return of Mr. Matheson on December 5. [ 10 ] At a meeting of council on November 22, Mr. Neary again requested the matter be deferred until Mr. Matheson’s return.

This request was denied, as it had been previously. Council voted on the Mayor’s two motions, one to declare Mr. Neary in a conflict of interest, the other to declare vacant his seat on council. The council divided, two councilors voting against the motions, four (including the Mayor) voting in favour. In the result, Mr. Neary was removed from municipal council. [ 11 ] The two councilors (Moses Tucker and Joseph Duggan) who voted against the Mayor’s motions stated under oath that they had not been aware that recommendation 28 affected Mr.

Neary’s property and that the recommendation was “ambiguous”, “unclear” and “confusing”. [ 12 ] Mr. Neary appealed to the Trial Division pursuant to

section 410 of the Act , which reads in part:

(1) A councillor whose seat has been … declared vacant under subsection 206(2) may appeal to a judge of the Trial Division by filing a notice of appeal in the Registry of the Supreme Court within 21 days of the date on which he or she is notified by the clerk of the council that his or her position as councillor is vacant …

(6) A judge shall hear the appeal and the evidence brought forward by the appellant and the council in a

summary manner and may … (

b) uphold, amend or rewrite the resolution made under subsection 206(2); or (

c) make another decision that he or she considers to be appropriate in the circumstances.

[ 13 ] In her decision of October 10, 2012 (2012 NLTD(G) 146), the Trial Division judge wrote at para. 48: As with Councillor Duggan, Councillor Tucker stated that he held the belief that the majority decision to find Mr. Neary in a conflict of interest was pre-determined in advance of the hearing on 21 November 2011. He also stated his belief that Mayor Fagan used the allegation of conflict of interest in retaliation for the previous quarrel with Mr. Neary .

These allegations were denied by the Mayor and others who voted with him. [ 14 ] In her decision, the Trial Division judge wrote concerning the issue of procedural fairness: Refusal to Permit Adjournment to Hear from Mr. Matheson [56] The evidence supports Mr. Neary ’s position that he was denied the opportunity to cross-examine Mr. Matheson. The evidence unequivocally confirms that Council relied upon the Consultant’s statement that 137 Beachy Cove Road was included in Recommendation #28 in its finding that Mr. Neary voted on a Resolution in which he owned property.

Mayor Fagan testified that he did not have the requisite “skill” to ascertain this fact. Mr. Matheson, accordingly, played the key role in the evidentiary basis for Council ’s resolution. It was reasonable that Mr. Neary requested that he attend the hearing and his request for a short adjournment was also reasonable. [57] I am satisfied that Mr Neary made several requests to adjourn the hearing until Mr. Matheson’s return:

(1) He requested the attendance of Mr. Matheson on 7 November 2011, during an “informal” meeting convened at the request of Mayor Fagan, asking that the matter be “discussed in detail” with the Consultant in order to “clear things up.”

(2) On 8 November 2011, at the public Town Council meeting’s privileged session he “again insisted” that the Consultant be available.

(3) On 21 November 2011, he requested that the hearing await the return of Mr. Matheson.

(4) At the Public Town Council meeting held on 22 November 2011, Mr. Neary requested that the matter be postponed until the return of Mr. Matheson prior to a decision being made. He stated: I also requested that the matter be deferred until Andrew Matheson, who is the planner for the consulting firm, returned on the 5th of December and that apparently-- and that request has been denied.

So I just want to go on record as having an objection to that refusal for the short period of time to be allowed to pass until the planner could get back and discuss this. … [58] The rules of natural justice are a significant feature of our constitutional democracy. Mr. Neary ’s repeated request for clarification from the recommendation’s drafter was met with intransigence. I find that the evidence establishes that Mr. Neary was denied procedural fairness in Council ’s refusal to permit the adjournment requested to discuss Recommendation #28 with Mr. Matheson.

Each of his separate requests was reasonable and unfairly denied by the Council , preventing him from receiving the standard of procedural fairness to which he was entitled . Whether Members of Council Determined Mr. Neary to be in Conflict of Interest in Advance of his Hearing [59] The evidence demonstrates that animosity existed between Mr. Neary and Mayor Fagan. This strained relationship apparently arose in April 2011 over the issue of whether Mayor Fagan was himself in a conflict of interest with respect to a development at Murray’s Pond. Mr.

Neary filed emails between the two men which reflect their difficult relationship and Mayor Fagan’s personal dissatisfaction with steps Mr. Neary initiated to ascertain whether the Mayor was in a conflict of interest. [60] Mr. Neary also submits that the Deputy Mayor was biased against him. He filed a copy of an

article in the Northeast Avalon Times in which she criticized him for allegedly shirking his responsibilities as a Councillor: Doug Neary just wants to stay on planning and development and if he can’t have that, he won’t show up. If he has no interest working on the Town he should resign. [ . . . ] [61] He also referred to a statement she made in response to his request that the proceedings be adjourned to permit Mr. Matheson to attend, saying that he was “delaying the inevitable.” [62] Mr.

Neary referred to “Regulations Governing the Procedures of Meetings for the Town ”, requiring that Notice of Motion for Agenda Items be provided “by five (5) pm, Thursday, prior to the date fixed for the Council Meeting”. He states that the hearing into his alleged conflict of interest took place only on 21 November 2011, yet Councillor Whitten requested that new business include resolution #2011-377 and resolution #2011-378, supporting his view that the decision to find him in a conflict of interest, preceded his hearing.

In response, it was submitted by Council that Motions are also accepted at the time of the meeting. [63] The transcript of hearings reveals the use of disparaging language by Mayor Fagan and Councillor Neary in their interaction with each other. That said, there was no evidence to indicate that Mayor Fagan or Deputy Mayor Tucker [not Moses Tucker] had a personal interest in the zoning of 137 Beachy Cove Road or otherwise exercised any influence upon or duress with respect to the manner in which Council voted. [64] Nonetheless, the refusal of Council , however motivated, to grant Mr.

Neary ’s request for an adjournment, constituted a clear breach of the natural justice to which Mr. Neary was due. The consequences of this breach will be examined below. (Emphasis added.) [ 15 ] The Trial Division Judge went on to state in para. 65: My finding that there has been a breach of procedural fairness in the conduct of the hearing does not end the inquiry into Mr. Neary ’s alleged conflict of interest. Subsection 410(6) of the Act requires that I consider the “evidence brought forward by the appellant and the

council” to determine whether Mr. Neary was in a conflict of interest when he voted on Recommendation #28. As part of this analysis, Iwill consider whether the breach of procedural fairness impacted upon the outcome. [16] The Trial Division judge conducted her own analysis of whether Mr. Neary was in conflict of interest. She decided that he wasand, based on that, she declared his seat vacant. She did so on the basis that she was conducting a trial de novo. (See para. 88, 89 and 99of her decision.) [17] In its factum, the municipal council agreed with the Trial Division judge’s approach.

The factum reads, in part: [60] … The Respondent accepts [the Trial Division judge’s] decision regarding the breach of procedural fairness owed to Mr. Neary inthe time prior to the vacation of his seat. The Respondent further concurs with the learned Trial Judge’s ruling regarding the effect of thebreach on whether Mr. Neary was in conflict of interest. [61] The Respondent submits that [the Trial Division judge] correctly applied the broad discretion afforded by s. 410(6) to treat theappeal hearing as a trial de novo. … Mr.

Neary was afforded every avenue of procedural fairness during his appearance before the TrialDivision and the Respondent concurs with the learned Trial Judge’s ruling that the breach of procedural fairness “does not alter thefinding that a conflict of interest occurred.” [18] In proceeding as she did, the Trial Division judge made a fundamental error of law. Mr. Neary was entitled to proceduralfairness before the municipal council. He was denied it. On that basis, the council’s decisions should have been set aside. [19] This is clear from Cardinal v.

Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, para. 22, where LeDainJ. wrote: I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appearto a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as anindependent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by anadministrative decision is entitled to have.

It is not for a court to deny that right and sense of justice on the basis of speculation as towhat the result might have been had there been a [fair] hearing. (Emphasis added.) [20] The foregoing was affirmed by the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board ofCommissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623 at 645, where Cory J. wrote: Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right.

As I havestated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. Ifthere has been a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision. A decision of a tribunal whichdenied the parties a fair nearing cannot be simply voidable and rendered valid as a result of a subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot beremedied.

The hearing, and any subsequent order resulting from it, is void. In Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 661, Le Dain J. speaking for the Court put his position in this way: … I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it mayappear to a reviewing court that the hearing would likely have resulted in a different decision.

The right to a fair hearing must beregarded as an independent, unqualified right which finds its essential jurisdiction in the sense of procedural justice which any personaffected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis ofspeculation as to what the result might have been had there been a hearing. In my view, this principle is also applicable to this case.

In the circumstances, there is no alternative but to declare that the Order of theBoard of Commissioners of Public Utilities is void. (Emphasis added.) [21] An exception to the foregoing rule is where there is a question to which there is only one inevitable answer. See Mobil OilCanada v. Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 S.C.R. 202 at 227-229. That is clearlynot the case here, given the split in council and the statements by two councilors (see para. 10 above) that recommendation 28 was“ambiguous”, “unclear and confusing”. The council votes might have had different outcomes if Mr.

Neary had been permitted to haveMr. Matheson at the meeting to speak to the details of recommendation 28. [22] It is no answer to say that Mr. Neary had a fair hearing de novo before the Trial Division, pursuant to s. 410(6) of the Act. Mr.Neary had a right to both a fair hearing before council and, as well, an appeal to the Trial Division if council’s decisions went againsthim. He was denied his right to a fair hearing before council; this the courts cannot countenance. It is not for us to turn a blind eye toabuse of authority; it is our responsibility to stand against it.

EXPLANATORY NOTE [23] In their facta, the parties focused their arguments on whether the Trial Division judge had erred in her decision that Mr. Nearywas, first, in conflict of interest and, second, should be removed from council because of the conflict. This Court has not said anythingabout those questions, as in our view those questions are not properly before us, nor were they properly before the Trial Division judge. CONCLUSION [24] The appeal is allowed. The decision of the Trial Division judge is set aside. The decisions taken by the municipal council

regarding Mr. Neary on November 22, 2011 are void and of no effect. Mr. Neary will have his costs before this Court and in the Trial Division. ______________________________ M. H. Rowe J.A. I Concur: __________________________________ J. D. Green C.J.N.L. I Concur: __________________________________ L. R. Hoegg J.A.