Freeman Parsons APPELLANT And: The Town Council of the Town of Hughes Brook respondent v. Docket, 2020 NLSC 4

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Parsons v. Hughes Brook (Town) , 2020 NLSC 4 Date : January 13, 20 20 Docket : 201804G0017 Between: Freeman Parsons APPELLANT And: The Town Council of the Town of Hughes Brook respondent AND Docket : 201804G0018 Between: GARY WELLS APPELLANT And: The Town Council of the Town of Hughes Brook respondent Before: Justice Brian F. Furey Place of Hearing: Corner Brook, Newfoundland and Labrador

Dates of Hearing: April 13, 2018 and April 20, 2018

Summary: The Appellant, Freeman Parsons, is a former councillor and Mayor of the Town of Hughes Brook. He appealed an Order of the Respondent declaring his seat vacant pursuant to section 206(1)(

g) of the Municipalities Act . The Appellant, Gary Wells, is a former councillor and Deputy Mayor of the Town of Hughes Brook. He appealed an Order of the Respondent declaring his seat vacant pursuant to section 206(1)(

g) of the Municipalities Act . Held: The Court allowed the appeals, set aside the Respondent’s decisions to declare the Appellants’ offices of councillor vacant and ordered that they be reinstated. The Appellants were awarded party and party costs. Appearances: Dean A. Porter Appearing on behalf of Freeman Parsons and Gary Wells Adam G. Baker Appearing on behalf of the Town Council of the Town of Hughes Brook Authorities Cited: CASES CONSIDERED: Coombs v. Placentia (Town) , 2018 NLSC 53 ; Lynch v. St. John’s (City) , 2016 NLCA 35 ; United Taxi Drivers’ Fellowship of Southern Alberta v.

Calgary (City) , 2004 SCC 19 ; Gander (Town) v. Trimart Investments Limited , 2015 NLCA 32 ; and Hagan v. Drover , 2009 NLTD 160 . STATUTES CONSIDERED: Municipalities Act , 1999 , S.N.L. 1999, c. M-24 ; and Labour Standards Act , R.S.N.L. 1990, c. L-2 , as amended. RULES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . REASONS FOR JUDGMENT Furey, J. : INTRODUCTION [ 1 ] These appeals are against Orders of the Town Council of the Town of Hughes Brook dated December 22, 2017 made pursuant to section 206(1) (

g) of the Municipalities Act , 1999 , S.N.L. 1999, c. M-24 (hereinafter the “ Act ”).

[ 2 ] Both Mr. Parsons and Mr. Wells (collectively referred to as the “Appellants”) filed Notices of Appeal against the Respondent. It was determined with the agreement of counsel that evidence would be heard on the two appeals at the same time and it would be applied in the consideration of both appeals. [ 3 ] On January 11, 2018, Freeman Parsons filed a Notice of Appeal of the Order of the Respondent, the Town Council of the Town of Hughes Brook (hereinafter referred to as the “Town”) dated December 22, 2017. The effect of the Order was to declare the seat of Mr. Parsons as Mayor of the Town vacant pursuant to section 206(1) (

g) of the Act . Mr. Parsons asked that the decision of the Town be quashed, that his position be reinstated, and that he be awarded costs in the proceeding. [ 4 ] On January 11, 2018, Gary Wells filed a Notice of Appeal of the Order of the Respondent, the Town, dated December 22, 2017. The effect of the Order was to declare the seat of Mr. Wells as Deputy Mayor of the Town vacant pursuant to section 206(1) (

g) of the Act . Mr. Wells asked that the decision of the Town be quashed, that his position be reinstated, and that he be awarded costs in the proceeding. background [ 5 ] On September 26, 2017, Mr. Parsons was elected as a councillor of the Town during the municipal election. On September 28, 2017, Mr. Parsons was elected as Mayor by the councillors. He carried out the functions of Mayor as of that date. [ 6 ] On December 22, 2017, the Town wrote to Mr. Parsons and informed him in accordance with section 206(1) (

g) of the Act that his position as Mayor of the Town was considered vacant. [ 7 ] The letter from the Town Clerk stated in part: In accordance with the Municipalities Act, 1999 :

Section 206.

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

g) he or she accepts without the prior written approval of the minister, an office or employment under the council to which a salary or remuneration, not including an honorarium payable out of the funds of the council, is attached. Under these circumstances, and as directed by legal counsel, the position of Mayor of Hughes Brook is hereby considered vacant. Subsection 206(4) of the Act makes it clear that a councillor must not sit or act as a councillor after his or her office has been declared vacant. [ 8 ] On September 26, 2017, Mr. Wells was elected as a councillor of the Town during the municipal election.

On September 28, 2017, Mr. Wells was elected as Deputy Mayor by the councillors. He carried out the functions of Deputy Mayor as of that date. [ 9 ] On December 22, 2017, the Town wrote to Mr. Wells and informed him in accordance with section 206(1) (

g) of the Act that his position as Deputy Mayor of the Town was considered vacant. [ 10 ] The letter from the Town Clerk stated in part: In accordance with the Municipalities Act, 1999 :

Section 206.

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

g) he or she accepts without the prior written approval of the minister, an office or employment under the council to which a salary or remuneration, not including an honorarium payable out of the funds of the council, is attached. Under these circumstances, and as directed by legal counsel, the position of Deputy Mayor of Hughes Brook is hereby considered vacant. Subsection 206(4) of the Act makes it clear that a councillor must not sit or act as a councillor after his or her office has been declared vacant. [ 11 ] The two letters also stated that a councillor whose seat has been vacated under paragraph 206(1)(

g) had the right to appeal to a judge of the Trial Division by filing a notice of appeal with the court within 21 days of the date on which he is notified by the clerk of

the council that his position as councillor is vacant. notice of appeal [ 12 ] Paragraph 3 of Mr. Parsons’ Notice of Appeal sets out the subject matter of his appeal as follows:

i) On or about the 22nd day of December, A.D., 2017, the Respondent purported to declare the seat of the Appellant, as Mayor of the Respondent, vacant pursuant to Section 206(1) (

g) of the Municipalities Act, 1999 (the “ Act ”); ii) The Appellant has not held a position of employment or an office under the Respondent since being elected to the Respondent on or about September 26th, A.D., 2017; iii) The Respondent has made an error in law and in fact in purporting to declare the office of the Appellant as Mayor of the Respondent vacated pursuant to Section 206(1) (

g) of the Act ; iv) The Respondent has acted in excess of its jurisdiction in purporting to declare the office of the Appellant as Mayor of the Respondent vacated pursuant to Section 206(1) (

g) of the Act ;

v) The Respondent has acted, and continues to act, without regard to its obligations and jurisdiction under the Act ; vi) The Appellant has, at all material times hereto, acted in accordance with his obligations pursuant to the Act (and otherwise) and in accordance with the direction and approval of Council; vii) The Respondent failed to act with procedural (or any) fairness and in accordance with natural justice; and viii) The Respondent failed to properly serve the Appellant with that Notice required to be served upon the Appellant in accordance with

Section 406 of the Act . [ 13 ] Paragraph 3 of Mr. Wells’ Notice of Appeal sets out the subject matter of his appeal as follows:

i) On or about the 22nd day of December, A.D., 2017, the Respondent purported to declare the seat of the Appellant, as Deputy Mayor of the Respondent, vacant pursuant to Section 206(1) (

g) of the Municipalities Act, 1999 (the “ Act ”); ii) The Appellant has not held a position of employment or an office under the Respondent since being elected to the Respondent on or about September 26th, A.D., 2017; iii) The Respondent has made an error in law and in fact in purporting to declare the office of the Appellant as Deputy Mayor of the Respondent vacated pursuant to Section 206(1) (

g) of the Act ; iv) The Respondent has acted in excess of its jurisdiction in purporting to declare the office of the Appellant as Deputy Mayor of the Respondent vacated pursuant to Section 206(1) (

g) of the Act ;

v) The Respondent has acted, and continues to act, without regard to its obligations and jurisdiction under the Act ; vi) The Appellant has, at all material times hereto, acted in accordance with his obligations pursuant to the Act (and otherwise) and in accordance with the direction and approval of Council; vii) The Respondent failed to act with procedural (or any) fairness and in accordance with natural justice; and

viii) The Respondent failed to properly serve the Appellant with that Notice required to be served upon the Appellant in accordance with

Section 406 of the Act . the law The Act [ 14 ]

Section 206 of the Act deals with vacancies. It states: 206

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

a) he or she resigns, in writing, from the date specified in his or her resignation, or, where a date is not specified, from the date when he or she files his or her resignation with the clerk or, where he or she resigns at a meeting of the council, from the time of that resignation; (

b) he or she is a member of a council of a municipality that is dismissed under the Municipal Affairs Act, or where under that Act , he or she is dismissed as a member of a council; (

c) he or she stops being ordinarily resident in the municipality; (

d) he or she has been absent from the municipality for more than one year; (

e) he or she remains indebted to the council for outstanding taxes 31 days after the end of the financial year; (

f) without leave of the council, he or she (

i) is not sworn into office within 60 days after his or her election, or (ii) does not attend regular public meetings of the council for 3 successive months; (

g) he or she accepts without the prior written approval of the minister, an office or employment under the council to which a salary or remuneration, not including an honorarium payable out of the funds of the council, is attached ; (

h) he or she fails to vote on a matter before the council when required to vote; or (

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.

(3) A councillor in respect of whom a resolution is made under subsection (2), shall not vote on that resolution.

(4) A councillor shall not sit or act as a councillor after his or her office becomes vacant. [Emphasis added] [ 15 ]

Section 410 which deals with an appeal to the Trial Division states as follows: 410

(1) A councillor whose seat has been vacated under paragraphs 206(1)(c), (d), (e), (f), (

g) or (

h) or declared vacant under subsection 206(2) may appeal to a judge of the Trial Division by filing a notice of appeal with the 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 and upon paying into the court a sum, or upon giving a bond for the sum, that the judge considered sufficient to defray the costs of the appeal.

(2) A copy of the notice of appeal shall be filed with the clerk by the appellant or by his or her solicitor.

(3) The notice of appeal shall set out in detail the allegations of the appellant and the grounds of the appeal and shall be signed by the appellant or his or her solicitor.

(4) The appellant shall, within 14 days after the service of the notice of appeal under this section, apply to the judge for the appointment of a day for the hearing of the appeal.

(5) A clerk shall, not less than 4 days before the date of the hearing of the appeal, produce before the judge all papers and documents in the possession of the council relevant to the appeal.

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

summary manner and may (

a) uphold the vacancy or reinstate a councillor whose seat was vacated under paragraphs 206(1)(c), (d), (e), (f), (

g) or (h); (

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.

(7) A judge may make an order as to costs, either for or against the appellant or the council, and may fix the amount of the costs.

(8) A person who has filed an appeal under this

section is not entitled to sit as a councillor while the appeal is being heard. evidence [ 16 ] Ms. Terri Glynn is the Town Clerk of the Town. She has occupied this position since May 1, 2016. She described her duties as being a contact between the residents of the Town and the Town Council. [ 17 ] She testified that the Town Council was elected on September 26, 2017. The first meeting of the new Council was held on September 28, 2017. At that meeting she brought up the issue of Council members doing work for the Town.

She did this because the previous Mayor had received a letter from the Minister permitting him to do that. She said Mr. Parsons wanted to do work at the pump house. Mr. Wells, who was elected Deputy Mayor, wanted to continue in the position of maintenance man, including doing maintenance on the roads. He used to do maintenance on the pump house too. Both Mr. Parsons and Mr. Wells stated they would write the required letters to the Minister. [ 18 ] At the meeting of the Town Council on October 11, 2017, Ms. Glynn stated both the maintenance position and the pump house position needed to be put on the Town payroll.

If Council members were going to work in these positions, a letter would have to be sent to Mr. Arthur Skinner, the regional manager for Western Newfoundland and Labrador in the Department of Municipal Affairs requesting the Minister’s permission. [ 19 ] Mr. Parsons and Mr. Wells did not write the letters for a period of time. Ms. Glynn was asked if Mr. Parsons and Mr. Wells ever made a request to the Minister. She said they told her that they went to the Minister’s office in early November 2017. [ 20 ] Mr. Parsons did prepare a letter and Ms.

Glynn sent it for him to the Department of Municipal Affairs on November 16, 2017. Mr. Parsons’ undated letter stated: “I, Freeman Parsons, is asking for permission to be on a payrol (sic) position for the pump house in Hughes Brook”. [ 21 ] The Minutes of the Council meeting of November 8, 2017 indicated that the maintenance man position was to be posted on the board and advertised for one week. Mr. Wells did submit a letter to the Town seeking to be the maintenance man. In his letter of November 16, 2017, Mr.

Wells stated: “I hereby apply for the position of maintenance person with the town of Hughes Brook as posted”. [ 22 ] Ms. Glynn said she had three or four discussions with Mr. Wells. The issue was discussed at the first three or four Town Council meetings about what needed to be done. Mr. Wells told her he would get around to it. She was not aware if he ever sent a letter to the Department of Municipal Affairs. [ 23 ] In late November 2017, Ms. Glynn was contacted by Mr. Skinner. He asked if Mr. Parsons and Mr. Wells were already getting paid for work completed by them. She confirmed they were.

He said that required the approval of the Minister of Municipal Affairs. He suggested that the Town seek legal advice. Ms. Glynn stated that Mr. Skinner subsequently came to a Town Council meeting in early December 2017 and spoke to the Council members about this matter. [ 24 ] The Minutes of a Privileged Meeting of the Town Council on December 6, 2017 were entered as an exhibit. Four of the councillors, including Mr. Parsons and Mr. Wells, were present. Mr. Skinner was also present and spoke to the councillors.

Some of the issues discussed as set out in the Minutes were: . . . o Town Hiring: Councillors can only do work when all other avenues are exhausted

. . . o Calls were made to Municipal Affairs from residents of Hughes Brook complaining of work being done in Town by Mayor and Deputy Mayor o Letters submitted to the Minsters office from Mayor and Deputy Mayor for paid employment – deferred until hiring . . . o Conflict of interest: RE: Mayor and Deputy Mayor. Mr. Skinner read section 206(1) (

g) of the Municipalities Act 1999 and that their seats may be vacated o Clerk to call . . . lawyer to consult in how to proceed. Provide lawyer minutes, invoices, cheques, bank records where cheques were cleared, timeline review on behalf of the Town where they got paid without Minister approved as a member of Council o If seats are vacated, they have a right to appeal within 21 days of notice from Town Clerk. Mr. Skinner read

Section 410 from the Municipalities Act 1999 . . . [ 25 ] Ms. Glynn testified that Mr. Wells was acting as the maintenance man for about a year prior to the election. He wanted to keep it off the record. He wanted to get paid but as he was on unemployment he did not want it to affect his unemployment. [ 26 ] On cross-examination, Ms. Glynn confirmed that the only employees of the Town at the time of the hearing were the maintenance man and her. Other individuals or companies who performed services for the Town were identified as contractors. [ 27 ] After Mr.

Parsons became a member of the Town Council, he submitted the following invoices: DATE DESCRIPTION AMOUNT STATUS October 7, 2017 Use of tractor and operator to put up stop signs with Mr. Wells $75 Paid October 10, 2017 Use of truck and tractor to pick up culvert $100 Paid October 10, 2017 Charge for services ($15 per hour x 3 hours) $45 Paid November 9, 2017 10 hours at pump house for maintenance and chlorination system No amount shown Not paid [ 28 ] Ms. Glynn stated that the amount of $45 Mr. Parsons was paid was for wages to go to Deer Lake. It was an hourly rate of $15. No remittances were taken out.

The remainder was for expenses for the rental of his tractor and truck. The fourth item in the chart above was not paid because Mr. Parsons was waiting on the approval letter from the Minister of Municipal Affairs that had not come at that point. [ 29 ] Mr.

Wells submitted the following invoices: DATE DESCRIPTION AMOUNT STATUS October 6 - 10, 2017 Install door, install new posts and signs, drive to Deer Lake and return to pick up pipes $130 (including $15 for gas) Paid October 12, 2017 Take up speed bumps, use of truck, travel to Corner Brook $70 (including $25 for gas) Paid October 15, 2017 Fill potholes, pick up sign, and bolts $132.50 (including $50 for gas) Paid [ 30 ] She acknowledged that the items set out in paragraph 24 above were specific items that Mr. Skinner discussed with Mr. Parsons, Mr. Wells, and the other members of the Town Council.

She did not know which residents of the Town called the Department of Municipal Affairs. She confirmed that the words “for paid employment – deferred until hiring” in the third bullet were Mr. Skinner’s words at the meeting. She wrote down what was said at the meeting. [ 31 ] She reiterated she first told Mr. Parsons, Mr. Wells, and the other members of the Town Council at the first meeting of the Town Council on September 28, 2017 that they needed to have Ministerial approval to be collecting monies for doing work with the Town.

She had knowledge of this requirement because the previous Mayor used to do work on the pump house and he had a letter from

the Minister. Mr. Parsons and Mr. Wells continued to be paid because the Town Council decided. Ms. Glynn said that when Mr. Parsons and Mr. Wells would bring in Statements of Account of what they were claiming, they would know what was to be approved and what was not because they were part of the Town Council. [ 32 ] Ms. Glynn testified that neither Mr. Parsons nor Mr. Wells ever asked her to send a letter to the Department of Municipal Affairs seeking approval to be employed by the Town Council. Ms.

Glynn stated these individuals at a Town Council meeting said they were going to write their own letters and bring them to her so she could send the letters to the Department of Municipal Affairs. [ 33 ] She confirmed that Mr. Skinner called her after Mr. Parsons and Mr. Wells went to the Minister’s office and spoke to the Minister’s constituency assistant who, in turn, contacted Mr. Skinner. [ 34 ] In response to questions from the Court, Ms. Glynn stated that councillors receive an honorarium through quarterly remuneration. It is based on 51 percent attendance at meetings.

She recounted that at the first meeting of the new Town Council (including Mr. Parsons and Mr. Wells) she brought up the issue of councillors receiving monies from the Town Council. Those individuals would need to have approval letters to continue to receive monies or to obtain any personal gain from the Town Council. She brought up this issue because she had previous knowledge from a former Mayor who was doing maintenance and pump house work. That person had to have approval from the Minister. Both Mr. Parsons and Mr. Wells said they would get it done. She stated Mr.

Wells was being paid for about 12 hours per cheque. Mr. Parsons was being paid one hour for every three days to deal with the chlorination system. He was also paid for the use of his tractor when he and Mr. Wells were putting up street signs. [ 35 ] Mr. Arthur Skinner worked in the Department of Municipal Affairs from March 2010 to January 2018 as Regional Manager for Western Newfoundland and Labrador. One part of his duties was to deal with the legislation for municipalities in the region.

The Department also offered training courses to municipal officials prior to elections and training to councillors and municipal officials after an election. [ 36 ] He stated Mr. Parsons and Mr. Wells attended a training session in Deer Lake in late October 2017 which Mr. Skinner conducted. Prior to that, both individuals had come to his office. They were new councillors and they were wondering about different issues and concerns. There was some discussion about Mr. Parsons and Mr. Wells doing work for the Town. Mr. Skinner indicated to them that they would have to get the Minister’s approval to do this.

He had several other conversations with Mr. Parsons and Mr. Wells after these meetings. [ 37 ] Mr. Skinner testified that on December 6, 2017, he attended a meeting of the Town Council as he felt it was important to meet with the Town Council. Part of the meeting had to do with hiring. Mr. Parsons had made a request to the Minister in November to do work for the Town and be paid by the Town. He had not seen any request from Mr. Wells. [ 38 ] Mr. Skinner’s office had to gather information in order to make a recommendation to the Minister’s Office.

Two or three telephone calls had been received from people in the Town questioning the hiring of a part-time maintenance person. [ 39 ] At the meeting, four councillors, including Mr. Parsons and Mr. Wells, were present. Mr. Skinner explained the hiring process to the councillors. He testified there was some discussion regarding Mr. Parsons’ and Mr. Wells’ employment. He stated the two were doing work for the Town and were being paid by the Town. The Town was advised to seek a legal opinion regarding the concerns with the councillors (Mr. Parsons and Mr. Wells) having been paid prior to this. [ 40 ] Mr.

Skinner was asked if he had ever dealt with a council seat being vacant. He was aware of two other communities in the Western region where council seats were declared vacant but the vacancy did not relate to section 206(1) (

g) of the Act . [ 41 ] He described the process of a councillor seeking the Minister’s approval to be employed by the Town. The request could be made directly to the Regional Office or directly to the Minister’s Office. In the latter case, the request would be sent back to the Regional Office to gather information. The Regional Office would determine what the Town tried to do regarding hiring someone else. He also noted that the Minister’s letter of approval usually indicated a specific duration for the approval. [ 42 ] On cross-examination, Mr. Skinner stated that

section 206 of the Act relates to the proposition that if a councillor is going to be hired by or paid by a town council, the councillor needs authority to do this. He continued that a councillor’s seat becomes vacant if the councillor accepts employment with the town council. He could not recall whether he used the words “work” or “employment” in his conversations with Mr. Parsons and Mr. Wells. He understood that the context of the conversation was that these individuals were doing work and getting paid for it. He confirmed that he was aware Mr.

Wells was employed with the Town before he was elected to the Town Council. [ 43 ] Mr. Skinner stated the Department of Municipal Affairs had information that Mr. Parsons and Mr. Wells were employed by the Town to do work. He suggested that “if you’re doing work and getting paid, you’re an employee”. A contractor would typically not be an employee. He said that the first time he met with Mr. Parsons and Mr. Wells was when they had both mentioned they had done work for the Town.

The Department subsequently received other information regarding both individuals from the Town. [ 44 ] Prior to attending the meeting with the Town Council on December 6, 2017, Mr. Skinner had asked for some direction regarding

section 206 of the Act from within the Department of Municipal Affairs. He was told that the Department of Justice’s

interpretation of this

section was that it was automatic – a seat was vacated if certain actions were taken or not taken by an individual councillor. He also testified that one of his colleagues suggested that the Town should seek legal advice. [ 45 ] In response to questions from the Court, Mr. Skinner could not recall if he had ever come across a matter involving a councillor in which section 206(1) (

g) of the Act was used. He confirmed that Mr. Parsons and Mr. Wells were not the first individuals to raise with him the type of situation before the Court and the possibility of having to get a letter from the Minister. He noted the former Mayor of the Town actually did work for the Town. He did have a letter from the Minister. There was no expiry date on that letter which was unusual because the more recent letters from the Minister set out a timeframe for the approval. He indicated a letter from the Minister can be quite common in other areas of the province.

[ 46 ] He described the process to seek a letter from the Minister. A councillor had to write a letter to the Minister asking for the authority of the Minister. The Department conducted an investigation and prepared a draft approval letter and sent this to the Minister with comments regarding the information gathered through the investigation. He stated there is no pre-approval. The councillor has to wait for the Minister’s approval before actually being hired. [ 47 ] Mr. Skinner concluded that the onus is on the particular councillor to make the request to the Minister.

It would not be uncommon for a town clerk to write a letter but it is the councillor who is signing off on the request. [ 48 ] Mr. Gary Wells confirmed he became Deputy Mayor after the municipal election in September 2017. He also confirmed he received a letter dated December 22, 2017 from the Town Clerk informing him that his position as Deputy Mayor of the Town was considered vacant in accordance with section 206(1) (

g) of the Act . [ 49 ] Prior to the election, he periodically did work for the Town. It was not really a position of employment. He would use his own truck and equipment to fill holes in the road that needed to be filled. He was not on the payroll of the Town. He never received a T4 or a Record of Employment. He did not consider himself an employee of the Town. [ 50 ] When he and Mr. Parsons met with Mr. Skinner to discuss doing work for the Town and being paid, he did not recall Mr. Skinner mentioning the word “employment”.

At first, he was not aware that he needed a letter from the Minister if he was going to accept a position of employment with the Town. He never received a handbook from the Town Council when he was sworn in. He picked up some information at the seminar that was held in Deer Lake in the latter part of October 2017. At that point, he did not understand that he needed the written approval of the Minister if he was going to accept a position of employment. [ 51 ] Several weeks later Mr. Parsons and Mr. Wells asked the Town Clerk to write the letter and she said it was not her job. Mr. Wells then asked Mr.

Skinner who told him that the Town Clerk had to write the letter. He and Mr. Parsons then went to the Minister’s constituency assistant. That person said he and Mr. Parsons could not write the letter. The Town Clerk had to write the letter. They asked the Town Clerk again and she said it was not her job. Mr. Wells did not write a letter. He was told it was not his job. He did not think it would be either. [ 52 ] Prior to the election, Mr. Wells did a lot of volunteer work for the Town initially. He did not charge for this. He then obtained a maintenance position with the Town.

He denied there was any agreement with the Town Council that he did not want to be paid on the payroll. This was an hourly job. It was not a payroll position. [ 53 ] At the September 28, 2017 meeting of the Town Council, Mr. Wells was asked if he would continue to do the maintenance work for the Town and he agreed to do so. Then, the Town had to get a maintenance position in place. At the November 8, 2017 meeting of the Town Council, a decision was made to advertise for a period of one week for a maintenance person. On November 16, the Town Clerk told him that no one had applied.

He decided to apply for the position. He wrote the letter which is set out in paragraph 21 above. At that time, he had no approval from the Minister. He concluded that if he had gotten the job, he would have had to get a letter from the Minister. [ 54 ] On cross-exanimation, Mr. Wells stated he was paid $15 per hour for the work he did which was the rate set by the Town. At the meeting of the Town Council on September 28, 2017, Mr. Wells initially said the Town Clerk and a couple of the Council members asked him to continue doing the maintenance work.

A little later, he said he could not say who asked him to do the work because it was too far back. [ 55 ] He did not recall anything coming up at the first meeting with Mr. Skinner about needing a letter from the Minister. That issue came up at the second meeting with Mr. Skinner during the seminar in Deer Lake. Mr. Wells stated Mr. Skinner told him and Mr. Parsons that “you’ll need a letter if you are going to do work, if you’re employed with the Town”. Mr. Wells told him that he was not employed with the Town.

He reasoned that if he was not employed with the Town, he really did not need a letter. [ 56 ] He spoke to the Minister’s constituency assistant several times about a letter. Each time he was told that he could not write the letter. It had to be written by the Town Clerk. He did not write a letter. [ 57 ] Mr. Wells was aware Mr. Parsons wrote a letter. He suggested Mr. Parsons needed a letter more than he did because Mr. Parsons was going to be doing two jobs. It was employment because he was going on the Town’s payroll. [ 58 ] In response to questions from the Court, Mr. Wells stated that Mr. Skinner told Mr.

Parsons and him in November 2017 that they could not write the letter. The Town Clerk had to write the letter. Mr. Wells confirmed that he never wrote a letter because he was told that the Town Clerk had to write the letter. [ 59 ] Mr. Parsons did not give any evidence at the hearing. He relied on the evidence of Mr. Wells. issues [ 60 ] The issues for determination in these appeals are: 1. What is the appropriate standard of review to be applied by this Court in these appeals? 2. Were the decisions of the Respondent Town Council to consider Mr. Parsons’ position as Mayor of the Respondent and Mr.

Wells’ position as Deputy Mayor of the Respondent vacated pursuant to section 206(1) (

g) of the Act correct? 3. If the answers to issue 2 are in the negative, what is the appropriate remedy pursuant to section 410(6) of the Act ? What is the appropriate standard of review to be applied by this Court in these appeals?

[61] Counsel for the Appellants referred to Coombs v. Placentia (Town), 2018 NLSC 53, a decision of Chaytor, J. That decisionrelates to an appeal under

section 410 of the Act. In paragraphs 14 – 16, Chaytor, J. stated the following regarding the standard of reviewto be applied by this Court upon an appeal: 14 In Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 , at paragraph 22, the Supreme Courtof Canada clearly articulated that when the issue of review involves the

interpretation by an administrative body of its own statute closelyconnected to its function, then the standard of review is presumed to be reasonableness unless the issue falls within one of the fourcategories of exception identified in Dunsmuir v. New Brunswick, 2008 SCC 9 . Those categories include “true questions ofjurisdiction or vires”. In such cases, the presumption of reasonableness is rebutted and the standard of review is correctness. 15 This is consistent with the Supreme Court of Canada’s comment on standard of review in United Taxi Drivers’ Fellowship ofSouthern Alberta v.

Calgary (City), 2004 SCC 19 at page 492, where it stated: … Municipalities do not possess any greater institutional competence or expertise than the courts in delineating their jurisdiction. Such aquestion will always be reviewed on a standard of correctness. … 16 I find this is one of those cases in which the presumption is rebutted. This is not a situation where Council is making a decisionclosely connected to its function such as it would be doing in the

interpretation of a bylaw or an assessment review board would be doingin determining whether it may increase a property assessment. Rather, the key question in this case involves a determination of whether atown council has jurisdiction to declare a conflict of interest and vacate an office of a councillor after that councillor’s resignation. Thisquestion is of central importance to municipal governance. Furthermore, this is the type of question that requires a consistent approachamongst town councils and hence the desirability of correctness.

As such, I find that the standard of review with respect to thisjurisdictional issue is correctness. [62] Counsel for the Appellants and the Respondent submitted that this Court should apply the standard of correctness uponreviewing the decisions of the Respondent to declare the positions of the Appellants vacated pursuant to section 206(1)(

g) of the Act. [63] In my view, the issue to be considered centers around the

interpretation of section 206(1)(

g) of the Act by the Respondent. I findthat the standard of review with respect to this issue is correctness. Were the decisions of the Respondent to consider Mr. Parsons’ position as Mayor of the Respondent and Mr. Wells’ position as DeputyMayor of the Respondent vacated pursuant to section 206(1)(

g) of the Act correct? [64] The Appellants submit the decisions of the Respondent to consider their positions as Mayor and Deputy Mayor vacatedpursuant to section 206(1)(

g) were incorrect. [65] Counsel noted that the parties agree that the Appellants did not hold an “office” as that term is used in section 206(1)(g).Counsel argued that the Respondent must, therefore, establish that the Appellants held “employment under the council to which a salaryor remuneration, not including an honorarium payable out of the funds of the council, is attached”. [66] Counsel for the Appellants reviewed the evidence and the exhibits presented to the Court.

He noted that according to theMinutes of the first meeting of the Town Council on September 28, 2017, there were no discussions about the Appellants getting paid forwork they were doing for the Town. When the Town Clerk was contacted by the Department of Municipal Affairs, she was asked if theAppellants were getting paid for work they did for the Town. Counsel argued that this is not the test. The correct test is whether theAppellants were in the employment of the Town.

The Minutes of the Town Council meeting of September 28, 2017 state “Position ofMaintenance Man – Wells agreed to continue to work” and “Pump House – Parsons and Wells to do course as soon as it becomesavailable”. [67] Counsel suggested that there was no evidence that the Appellants were ever hired. There was no evidence presented by theTown to allow the Court to find that the Appellants were employed. Mr. Parsons had only performed a nominal number of hours on anad hoc basis as a contractor would.

There was one payment of $45 for three hours of work and other monies for the use of his tractor.That was not employment. Similarly, Mr. Wells did ad hoc work for the Town at an hourly rate approved by the Town Council. Hesuggested the Appellants were ad hoc contractors. He stated it would be impossible for the Court to decide that this type of work wouldconstitute employment. [68] Counsel pointed out that the Town Clerk stated that there were only two employees of the Town at the time of the hearing. Nodeductions were made from the cheques which had been given to the Appellants.

The number of hours the Appellants worked was notrecorded. Nothing for paid vacation for the Appellants was noted. [69] Counsel referred to the provisions of the Labour Standards Act, R.S.N.L. 1990, c. L-2, as amended. That legislation sets out therequirements necessary to outline the terms and conditions between an employer and an employee regarding the employee’semployment. If it is the Respondent’s position that the Appellants are employees, then the Respondent is not in compliance with theLabour Standards Act.

He continued that it is not necessary to consider this because there is no employment. [70] Counsel argued that the Appellants were doing cash jobs. Employees do not do this but contractors do. He suggested there is acontract here. The Appellants have no set schedule. No member of the Town Council checks on the number of hours of work theAppellants do. They have to maintain their tools and they take all the risks. [71] He submitted that the Court cannot find that there is an employment relationship on the facts presented. No Record ofEmployment was given. No notice of termination was given.

No job description for an employee position as referenced in

section 65 of

the Act was prepared. There is nothing that comes within sections 3.7 and 3.8 of the Municipal Council Handbook dealing with staffingand human resource policies. None of this happened or was necessary because the Respondent was dealing with contractors. [72] Counsel referred to Mr. Skinner testifying that there was no pre-approval letter from the Minister contemplated by section206(1)(g). A councillor would have had to have been hired before seeking a letter from the Minister. Counsel argued that the Appellantswere not employed by the Respondent. They did not ask to be paid off the books.

They were contractors doing ad hoc contracts. As theywere not employees, they did not need a letter from the Minister. In fact, they could not get a letter from the Minister until they werehired. Counsel submitted that no evidence was presented to this Court which would allow the Court to find that the Town Council wascorrect in vacating the seats of the Appellants. [73] Counsel also submitted that the Court should consider the commentary of Chaytor, J. in paragraphs 19 – 26 of Coombs v.Placentia (Town). The statements of Justice Chaytor interpreting legislation can be summarized as follows: 1. In Lynch v. St.

John’s (City), 2016 NLCA 35, Barry, J.A. noted at paragraph 33 that the proper approach to

interpretation today is acontextual one, where courts look to all indicators of meaning rather than assuming certain language may be unambiguous so that the textalone governs. . . . 2. In United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, the Supreme Court of Canada directed thatlegislation which empowers municipalities should be given a broad and purposive

interpretation. 3. In Gander (Town) v. Trimart Investments Limited, 2015 NLCA 32, our Court of Appeal at paragraph 19 stated that “a broad andpurposive approach to

interpretation of municipal legislation does not mean that a municipality can accord itself authority to take actionswhich fall outside of its statutory grant. A municipality only has the authority conferred on it by its enabling legislation”. [74] Justice Chaytor stated in paragraph 26: “This is the analytical and legal framework against which the actions of Council in thiscase must be considered”. [75] Counsel argued that based on this, the Respondent must be found to have correctly acted within its jurisdiction pursuant to theAct in order for its actions to stand.

If no such authorization can be found, the Respondent’s action would be ultra vires and not permittedto stand. [76] In section 206(1)(g), the Legislature outlined two positions – “an office or employment”. He noted the word “employment” isused. The meaning of that word has to be considered. [77] Counsel referred to Hagan v. Drover, 2009 NLTD 160 in which Adams, J. discussed the issue of whether a person would beconsidered an employee, holding a position of employment, or an independent contractor.

Adams, J. stated the following in paragraph 76: 76 The Supreme Court of Canada has clearly set out the approach a court should take in determining whether a person is an employee oran independent contractor: 67112 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 , [2001] 2 S.C.R. 983. Whilenoting that various tests have emerged in the authorities, none of them is conclusive and the court must look to the true nature of therelationship between the parties: Sagaz, paragraphs 36-48.

At paragraphs 46 to 48, Major, J., for the Court stated: 46 In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or anindependent contractor. Lord Denning stated in Stevenson Jordan, supra, that it may be impossible to give a precise definition of thedistinction (p. 111) and, similarly, Fleming observed that "no single test seems to yield an invariably clear and acceptable answer to themany variables of ever changing employment relations ..." (p. 416).

Further, I agree with MacGuigan J.A. in Wiebe Door, at p. 563,citing Atiyah, supra, at p. 38, that what must always occur is a search for the total relationship of the parties: [I]t is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a [page1005] contract ofservice any longer serves a useful purpose.... The most that can profitably be done is to examine all the possible factors which have beenreferred to in these cases as bearing on the nature of the relationship between the parties concerned.

Clearly not all of these factors willbe relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining whichfactors should, in any given case, be treated as the determining ones. 47 Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree withMacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra.

The central question iswhether the person who has been engaged to perform the services is performing them as a person in business on his own account. Inmaking this determination, the level of control the employer has over the worker's activities will always be a factor.

However, otherfactors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, thedegree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and theworker's opportunity for profit in the performance of his or her tasks. 48 It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relativeweight of each will depend on the particular facts and circumstances of the case.

(Emphasis added.) [ 78 ] In the matter before this Court, counsel submitted that the Court has to look at the true relationship between the Appellants and the Respondent. The central question is what is the level of control. The Appellants were doing minor ad hoc tasks. The Appellants were clearly independent contractors. They were not employees. [ 79 ] Counsel submitted that the matter falls outside of section 206(1) (

g) of the Act . The Appellants did not hold employment with the Respondent. One cannot equate employment with receiving monies for work done for the Respondent. A broad

interpretation of employment in section 206(1)(

a) is not appropriate. That would greatly extend the power of a town council to declare a councillor’s seat vacant. [ 80 ] Counsel for the Respondent pointed out there were no reported cases interpreting section 206(1) (g). The matter before this Court involves the

interpretation of that section. [ 81 ] He noted that Mr. Wells was the Town’s maintenance man before he was elected as a councillor. He wanted to keep the position of maintenance man. He had a job as the maintenance man until the Town eventually hired another one. He did receive some monies ($15 an hour) after the election for doing labour work for the Town. He had adequate warnings from the Town Clerk and Mr. Skinner to seek approval from the Minister. Mr. Wells never did send the letter to the Minister seeking the Minister’s written approval. Counsel stated that Mr.

Wells took a careless view of his obligations as a councillor and the additional responsibilities once he was elected. He submitted that the Court could find Mr. Wells was an employee. [ 82 ] Counsel pointed out that Mr. Parsons’ circumstances were different. He was not employed with the Town prior to the election and he did send a letter to the Minister. [ 83 ] Counsel suggested the word “employment” has a specific meaning dealing with an employer and employee relationship. In section 206(1)(g), the use of the word “employment” refers to more than just an employer and employee relationship.

He proposed that the broad meaning of section 206(1) (

g) also captures contracts for service and not only relates to individuals in a position of an employee. That

interpretation should apply to contracts for service in order to prevent councillors from using their position as a councillor to personally profit from being on council. Essentially, the purpose of

section 206 is to prevent councillors from abusing their position of authority for personal gain. Counsel submitted that the Act must be strictly applied and councillors held to a high standard. If the answers to issue 2 are in the negative, what is the appropriate remedy pursuant to section 410(6) of the Act ? [ 84 ] Counsel for Mr. Parsons and Mr.

Wells requested that the Court exercise its discretion under section 410(6) by reversing the declarations of vacancy and reinstating both of them to their positions on the Town Council with costs on a solicitor and client basis. [ 85 ] Counsel for the Respondent requested that the Court uphold the declarations of vacancy of the Appellants, that the appeals be dismissed, and that the Respondent be awarded its costs. analysis [ 86 ] The Appellants filed appeals pursuant to

section 410 of the Act asking this Court to review decisions of the Respondent vacating their positions as councillors with the Respondent. Both Appellants were notified separately by a letter dated December 22, 2017 from the Town Clerk of the Respondent. The letter referred to section 206(1) (

g) of the Act as the basis for this action. [ 87 ] The Appellants argue that the Respondent’s decisions were incorrect. They request this Court to reverse the declarations of vacancy and reinstate them as councillors in accordance with section 410(6) of the Act . [ 88 ] The Respondent asserts that it is correct in its decisions and that the appeals should be dismissed. [ 89 ] I set out the evidence and the submissions in some detail to show the very different positions counsel have argued on this appeal. [ 90 ]

Section 206 of the Act deals with vacancies in the office of a councillor in two situations. In subsection (1), eight specific circumstances resulting in a declaration of vacancy are set out as well as a reference to vacancies noted in subsection (2). The type of vacancies noted in paragraphs (1)(a) – (

h) are automatic on the occurrence of the particular acts. In subsection (2), the vacancies refer to conflicts of interest by a councillor. [ 91 ] Section 206(1)(

g) states: 206(1) the office of a councillor becomes vacant where . . . (

g) he or she accepts without the prior written approval of the minister, an office or employment under the council to which a salary or remuneration, not including an honorarium payable out of the funds of the council, is attached. This wording requires that a councillor accept an office or employment under the council. [ 92 ] Both counsel acknowledge that the Appellants did not hold an office. I agree with that view.

[ 93 ] The Court then has to consider whether the Appellants accepted employment under the Council to which a salary or a remuneration is attached. [ 94 ] The Appellants and the Respondent take very different views on the meaning of “employment” in section 206(1) (g). [ 95 ] The Appellants proposed what I would term a traditional view of the meaning of “employment”. They state that they were not employed by the Respondent. There was no evidence they were hired by the Respondent. They only performed a nominal number of hours on an ad hoc basis comparable to what a contractor would do.

There was no employment relationship with the Respondent on the facts presented. [ 96 ] The Respondent argued for a broader

interpretation of “employment” suggesting that its use in section 206(1)(

g) relates to more than just an employer and employee relationship. The term also covers contracts for service. The intent of this is to ensure that councillors do not abuse their position of authority for personal gain. [ 97 ] Section 65(1) of the Act permits a council to establish employee positions. Section 65(2) requires a council to establish written job specifications for each position it establishes. [ 98 ] The term “employment” is not defined in the Act . In my view, the term should be given its traditional meaning in the context of section 206(1) (g).

There is no reason why the term should be interpreted in any other manner. [ 99 ] I have carefully reviewed the evidence presented, the written and oral submissions of counsel, and the appropriate provisions of the Act , particularly section 206(1) (g). That

section requires that the reason for a vacancy in the office of a councillor arises from the councillor’s acceptance of an office or employment under the council. I find that the Appellants did not hold an office with the Respondent. I further find that the Appellants were not in an employment relationship with the Respondent. The use of section 206(1) (

g) as it is worded is not sufficient in the circumstances to permit the actions taken by the Respondent. [ 100 ] If the Legislature wanted to ensure that councillors such as the Appellants had certain obligations as councillors and the council had specific authority under section 206(1)(g), the Legislature could possibly have deleted the references to “an office or employment”. The

section could then have read “he or she accepts without the prior written approval of the Minister any salary or remuneration, not including an honorarium payable out of the funds of the council”. disposition [ 101 ] In the result, the appeals are allowed. The Respondent’s decisions to declare the Appellants’ offices of councillor vacant is set aside. Pursuant to section 410(6) (

a) of the Act , I order that Mr. Parsons and Mr. Wells be reinstated. [ 102 ] Section 410(7) permits a judge to make an order as to costs. [ 103 ] During oral submissions, counsel suggested that costs in this manner could be dealt with at a later date. [ 104 ] I am satisfied the issue of costs should be decided in these Reasons. I, therefore, award each Appellant party and party costs in accordance with Column 3 of the Scale of Costs under the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ Brian F. Furey Justice