George Yates Appellant And: Town of Springdale Respondent, 2022 NLSC 139

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Yates v. Springdale (Town) , 2022 NLSC 139 Date : September 12, 2022 Docket : 202101G5455 Between: George Yates Appellant And: Town of Springdale Respondent Before: Associate Chief Justice Rosalie McGrath On Appeal From: A Decision of the Central Newfoundland Regional Appeal Board, File Number: 15-006-054-002, with order dated the 22nd day of September 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 28, 2022 and March 2, 2022 with supplemental briefs filed on March 9, 2022 and March 25, 2022.

Summary: The Court found that the Board made no error of law or jurisdiction in confirming the decision of the Town to issue a demolition order for property of the Appellant. The Town had been attempting to have the property remediated for several years.

Appearances: Sarah J. Clarke Appearing on behalf of the Appellant Shawn C.A. Colbourne, K.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Yates v. Springdale (Town) , 2021 NLSC 181 ; Yates v. Central Newfoundland (Regional Appeal Board) , 2013 NLTD(G) 173; Janes v. Embree (Town) , 2018 NLSC 127 , rev’d 2022 NLCA 36 ; McDonald v. Grand Falls-Windsor (Town) , 2000 NFCA 10 ; Faulkner v. Eastern Newfoundland (Regional Appeal Board) , 2015 NLTD(G) 118; Stroud v. Newfoundland & Labrador (Central Regional Appeal Board) , 2010 NLTD 25 ; Markwart v.

Prince Albert (City) , 2006 SKCA 122 ; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; NARL Refining Limited Partnership v. United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 , 2020 NLSC 100 ; Buckingham v. Law Society of Newfoundland and Labrador , 2022 NLSC 37 STATUTES CONSIDERED: Municipalities Act , 1999 , S.N.L. 1999, c. M-24 ; Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U- 8 ; Municipal Conduct Act , S.N.L. 2021, c. M-20.01 ; City of Mount Pearl Act , R.S.N.L. 1990, c.

C-16 RULE CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT McGrath, A.C.J. : INTRODUCTION [ 1 ] The Appellant, George Yates, appeals a decision of the Central Newfoundland Regional Appeal Board (the “Board”) dated September 22, 2021. In that decision, the Board upheld a demolition order (the “Demolition Order”) issued by the Town of Springdale (the “Town”) in respect of a building located at 57 Bayview Road, Springdale, Newfoundland and Labrador (the “Building”). [ 2 ] Since October 2012, the Town had placed requirements on Mr.

Yates to repair the Building, resulting in Mr. Yates being granted two permits to carry out repairs, the last of which expired in February 2017. [ 3 ] Prior to the expiration of the second permit to repair, the Town arranged for a third party structural evaluation of the Building. As a result of that evaluation, the Town ultimately issued the Demolition Order in March 2017 and delivered that order to Mr. Yates in April 2017. [ 4 ] Mr. Yates appealed the Town’s decision to issue the Demolition Order to the Board who heard the matter on April 9, 2019. The Board upheld the decision of the Town.

The Board’s decision was then appealed to this Court on April 26, 2019 with the appeal being allowed. In a decision dated January 7, 2021, Justice Paquette sent the matter back to the Board for a re-hearing. [ 5 ] That re-hearing took place before a differently constituted Board on September 15, 2021, resulting in the Board again confirming the Town’s decision to issue the Demolition Order. It is that decision that is under appeal. [ 6 ] Pending the hearing of this appeal, Mr. Yates sought and was granted a stay of the Board’s decision pending appeal.

The decision regarding this stay is the subject of a written decision, Yates v. Springdale (Town) , 2021 NLSC 181 . background [ 7 ] The Board was provided with documents from the Town outlining the history of the Town’s dealing with the Building since

2012. The Board also heard evidence from Mr. Yates, the Town’s CAO/Manager, Jason Sparkes, and an engineer, Mario MacDonald. Below is a

summary of the record and evidence before the Board. [ 8 ] The Board learned that the Town had served Mr. Yates with an order of council dated October 1, 2012 directing that Mr. Yates clean up his property at 57 Bayview Road. In the covering letter to Mr. Yates, the former CAO/Manager of the Town indicated as follows: As you are aware, the Town of Springdale had conversations with you in February 2010 regarding complaints by residents in the area about the noise made by the sign on your property at 57 Bayview Road. As well, we discussed the debris that was falling from the building.

To date, no effort has been made to rectify these issues. To that end, you are advised of the attached order. It is the opinion of Council that the condition of your property at 57 Bayview Road adversely affects the properties surrounding it and that the sign and building represent a nuisance to the residents of the area and town. As such, under

Section 404, subsections (

f) and (l), of the Municipalities Act 1999 , the Town orders that you tidy up this property. [ 9 ] That attached order then directed Mr. Yates to: … 1. Secure of the sign so as to prevent its movement in the wind and 2. Arrange for the disposition or remediation of the building so as to enhance surrounding properties. [ 10 ] Mr. Yates appealed that order of council to the Board who dismissed the appeal by way of written decision on May 1, 2013. Mr. Yates then appealed that decision to this Court. In a written decision in Yates v.

Central Newfoundland (Regional Appeal Board) , 2013 NLTD(G) 173, Whalen, C.J., then Whalen, J. dismissed that appeal. [ 11 ] Mr. Yates then obtained a permit from the Town to complete general repairs to the Building. That permit was issued to Mr. Yates for a one-year period starting on April 28, 2014. Mr. Yates testified that the work he carried out during the currency of that permit was mostly on the inside of the Building. [ 12 ] On January 16, 2016, Jason Sparkes, the CAO/Manager of the Town, wrote to Mr.

Yates advising him of concerns that the Building had become a nesting area for a population of pigeons, thereby posing a health risk to the community. Mr. Sparkes recommended to Mr. Yates that closure be brought to the Building to stop the passage of pigeons. [ 13 ] Mr. Sparkes followed up by email to Mr. Yates on February 10, 2016 requesting a time for Mr. Yates to meet with council to discuss some concerns regarding the Building. Mr.

Sparkes sent a further email on the same date confirming that the meeting would be a special meeting with full council to discuss the condition of the Building, the pigeon issue and future plans. [ 14 ] Mr. Yates responded with an email on the same date asking that Mr. Sparkes put the concerns in writing so that Mr. Yates could forward them to his legal counsel and formally reply. [ 15 ] On February 11, 2016, the Town issued a second permit to Mr. Yates to complete general repairs to the Building. The expiry date of that second permit was February 10, 2017. [ 16 ] Mr. Sparkes followed up with Mr.

Yates on February 16, 2016, inquiring as to the scope of work he was planning for 57 Bayview Road. In particular, he inquired whether there would be any work conducted to improve the exterior appearance of the Building and, if so, when he anticipated the work to commence. Mr. Yates responded that he intended to re-clad the back of the Building and replace the roof covering. [ 17 ] Mr. Sparkes wrote to Mr. Yates again on September 13, 2016, advising that, at a recent meeting of council on August 29, 2016, a motion was made to have a structural assessment of the Building.

It was noted that there had been no efforts to address the dilapidated state of the Building since 2012. As a result, council wished to obtain a third party professional opinion and was therefore requesting access to 57 Bayview Road for the purposes of conducting a full assessment of the property by a certified structural engineer. If permission was not received by September 23, 2016, an exterior assessment of the property would be conducted. [ 18 ] Mr. Yates replied on September 25, 2016, that he was not giving the Town permission to have an engineer access the property.

He further stated that he was in the process of doing renovations under the existing permit. [ 19 ] At a regular council meeting held on October 11, 2016, the Town then resolved to proceed with an independent engineering assessment of the property. [ 20 ] A structural evaluation report was eventually prepared by Christopher Sargent, professional engineer, of Exploits Engineering Consulting Ltd. That January 3, 2017 report found significant deformation of roof framing, lack of lateral load resisting systems, deformation of skirting, potential for flying debris and signs of decay. In the conclusory

section of the report, Mr. Sargent stated as follows: The building in its current state of significant deformation and decay is at risk of structural collapse. Collapse may occur under wind and/or snow loading conditions as its construction does not meet the design loads set out in the National Building Code of Canada. This building, in its current condition and adjacency to public streets in the Town of Springdale, poses a risk of injury to the public. [ 21 ] That report was considered at a regular council meeting held on February 13, 2017, resulting in the Town resolving to issue the Demolition Order. Mr.

Yates was served with the order on April 12, 2017. [ 22 ] On April 24, 2017, Mr. Yates appealed the Demolition Order to the Board. A second notice of appeal of the same order was

filed by Mr. Yates’ counsel on April 26, 2017. [ 23 ] In January 2018, Mr. Yates also filed a complaint with the Professional Engineers and Geoscientists Newfoundland and Labrador (“PEGNL) alleging professional misconduct against Exploits Engineering Consulting Ltd., its owner, Mario MacDonald, and Mr. Sargent, who had completed the report. That complaint alleged bias, actual or perceived, and conflict of interest, as well as other matters. PEGNL sent the matter on to its complaints authorization committee. In a written decision dated June 4, 2018, that committee dismissed the complaints filed by Mr.

Yates against both engineers and the engineering corporation. [ 24 ] As noted above, the appeal was heard before a differently constituted Board in 2019. The history of how Mr. Yates’ initial appeal was heard by the Board and its subsequent appeal to this Court is outlined earlier in this decision. Ultimately, Justice Paquette allowed the appeal as there had been a lack of procedural fairness by the Board at the initial hearing. [ 25 ] In September 15, 2021, a newly constituted Board heard the appeal anew and gave a written decision on September 22, 2021. issues [ 26 ] The Notice of Appeal filed on behalf of Mr.

Yates identifies the following alleged errors: 1) The Board erred in law and/or declined its jurisdiction in determining the Town exercised its authority appropriately in issuing the Demolition Order; 2) The Board erred in law and/or jurisdiction in determining that the engineering firm that completed the structural assessment exhibited no bias against Mr. Yates; 3) The Board erred in law and/or jurisdiction in determining that the Town Council held no bias against Mr. Yates; 4) The Board erred in declining its jurisdiction by failing to consider how the Town’s motives to acquire Mr.

Yates’ property at 57 Bayview Road, Springdale, NL, factored into the decision to issue the Demolition Order; and 5) The Board erred in law and/or declined its jurisdiction by failing to give adequate reasons for its decision. law and analysis Legislation [ 27 ] The relevant sections of the legislation relating to this matter were placed before the Board. [ 28 ] In particular, the Board noted that a town council may make an order against a property owner to remediate his property pursuant to s. 404(1) (

f) of the Municipalities Act, 1999 , S.N.L. 1999 c. M-24 (hereinafter referred to as the “ Municipalities Act ”). That provision reads: 404.

(1) A council may make an order that … (

f) where a building is in a dilapidated state, or is, in the opinion of the council, unfit for human habitation, or another use for which is then being used, or is a public nuisance, the owner or occupier is to pull down, remove, fill in or otherwise destroy the building and restore the site to its original state, or make the disposition or alteration of the building that the order directs; [ 29 ] Section 408(1) of the Municipalities Act provides for an appeal of such an order as follows: 408.

(1) A person aggrieved by an order made under subsection 404(1) may, within 14 days of the service or posting of the order, appeal to the appropriate regional appeal board established under the Urban and Rural Planning Act , 2000 and the board may make an order with respect to the matter that appears just. [ 30 ] The Board is the regional appeal board authority that has been created to hear appeals from such orders made by the Town. [ 31 ] The authority of the Board is outlined in s. 42(10) of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c.

U-8 (the “ URPA ”): In determining an appeal, a board may confirm, reverse or vary the decision appealed from and may impose those conditions that the board considers appropriate in the circumstances and may direct the council, regional authority or authorized administrator to carry out its decision or make the necessary order to have its decision implemented. [ 32 ] Section 42(11) imposes an important limitation on the general authority granted to regional appeal boards under s. 42(10): Notwithstanding subsection (10), where a council, regional authority or authorized administrator may, in its discretion, make a decision, a board shall not make another decision that overrules the discretionary decision. [ 33 ] Appeals of decisions of the Board to this Court are then governed by s. 46(1) of the URPA .

Section 46(2) limits appeals to this Court to a question of law or jurisdiction. Section 46(4) further states that, after hearing the appeal:

The court shall either confirm or vacate the order of the board and where vacated the court shall refer the matter back to the board with the opinion of the court as to the error in law or jurisdiction and the board shall deal with the matter in accordance with that opinion. [ 34 ] In light of this statutory scheme, I will now consider each ground of appeal to determine whether the Board erred in law or jurisdiction. 1. Did the Board err in law and/or jurisdiction in determining the Town exercised its authority appropriately in issuing the Demolition Order? [ 35 ] Under three separate headings in the analysis

section of its decision, the Board considered how the Town was granted and exercised its authority. Under the first heading, the Board reproduced s. 404(1)(

f) of the Municipalities Act that gave the Town the authority to issue the Demolition Order. It also noted that the decision to issue such an order was discretionary and that the Board could not insert its discretion for that of the Town council (s. 42(11)). [ 36 ] Under a separate heading, the Board considered whether the Town exercised its authority appropriately, stating as follows: The Board finds that the Town exercised its authority appropriately in issuing an Order for the subject property. The Board learned that the Town invited Mr. Yates to meet with them to explore options which he declined.

The Board further learned that Mr. Yates has been issued a permit but did not carry out adequate repairs. The Board learned that the Town had been raising issues with regards to the condition of the building since 2012. [ 37 ] Under yet another heading, the Board considered whether the Demolition Order was served appropriately. The Board noted that the order named Mr. Yates rather than the company that owned the property. However, they noted: Section 404(1) (

f) of the Municipalities Act, 1999 states that an order may be served to the owner or occupier of the subject property. Mr. Yates stated that he was occupying the building for personal storage. The Board finds that the order was hand delivered to Mr. Yates by the Town Clerk and was served in accordance with

section 406 of the Municipalities Act, 1999 . [ 38 ] However, Mr. Yates’ position, both before the Board and this Court, was that the Demolition Order did not identify which of the three conditions in s. 404(1)(

f) of the Municipalities Act the Town was relying on to give them authority to order demolition of the Building (i.e., whether the Building was in a dilapidated state, unfit for human habitation, or another use for which it was then being used, or whether it was a public nuisance). It merely stated that the Demolition Order was issued as a result of “the condition” of the Building. [ 39 ] Mr.

Yates says that the Town should have used an objective test in assessing whether the interior of the Building, or some exterior aspect thereof, met one of the three conditions justifying demolition. [ 40 ] Before the Board, counsel for Mr. Yates noted the importance of property rights in law, stating that he should have been given an opportunity to remediate the state of the Building before the Demolition Order was considered. On the contrary, he was not provided with a copy of the structural evaluation report and there was no indication that the Town had considered the use to which the property was being put.

Had the Board properly considered the issue placed before them, he says the Board should have found that the Town violated the statutory process and therefore erred in both law and jurisdiction. [ 41 ] However, this submission fails to take into account the full record that was before the Board. In particular, the letter from Mr. Sparkes accompanying the Demolition Order specifically referenced the findings of the structural evaluation report and its conclusion that the Building was in a state of significant deformation and decay and at risk of structural collapse.

In its current condition and adjacency to public streets in the Town of Springdale, it posed a risk of injury to the public. [ 42 ] The letter enclosing the Demolition Order also indicated the reason for issuing the Demolition Order was as follows: Your failure to comply with a previous order dated October 1, 2012 which stated: The Town orders that you 1. Secure or remove the sign so as to eliminate the noise, and 2.

Arrange for the disposition or remediation of the building so as to enhance surrounding properties has resulted in the Town’s decision to order demolition of the building, pursuant to section 404(1) (

f) of the Municipalities Act, 1999 , issuing an order that the building (

s) be pulled down, removed, filled in or otherwise destroyed and the site be restored to its original state. … [ 43 ] While the above letter does not accurately reflect the actual wording of the October 1, 2012, order (i.e., the first order was to “1.

Secure of [sic] the sign so as to prevent its movement in the wind”), the reference to non-compliance with that order indicates that the failure to dispose of or remediate the Building was an ongoing concern of the Town since 2012 and was one of the reasons for issuing the Demolition Order. [ 44 ] As previously noted in this decision, the letter accompanying the 2012 order also specifically described the Building as representing a nuisance to the residents of the area and town.

[ 45 ] Mr. Yates had also been aware that the Town was undertaking a structural evaluation report. Mr. Sparkes explicitly advised Mr. Yates in correspondence dated September 13, 2016, that counsel was concerned that, to date, there had been no efforts made to address the dilapidated state of his property. [ 46 ] The letter accompanying the Demolition Order also concludes by stating that, in the opinion of council, Mr. Yates had been given adequate opportunity to repair and/or renovate his property.

The wording of the letter, the Town’s prior communications in respect of the Building, and the structural evaluation report leads to no other conclusion than that the Town was of the opinion the Building was in a dilapidated state and constituted a public nuisance. As such, it would have been unnecessary for the Town to identify each and every reason for the Demolition Order. [ 47 ] The evidence before the Board also indicated that Mr. Yates was provided ample opportunity over the years to dispose of or remediate the Building.

He had been issued permits and was invited to meet with council to discuss their concerns. [ 48 ] In fact, the Board summarized the parties’ submissions which touched on the entire history of the Town’s dealing with the property. It recognized that this was a discretionary decision of council and the Town had the explicit authority to issue the Demolition Order. [ 49 ] The discretionary nature of a decision to issue a Demolition Order is confirmed in a decision of Butler, J., then of this Court, in Janes v. Embree (Town) , 2018 NLSC 127 , overturned an appeal at 2022 NLCA 36 , but not on this point.

At paragraph 65 of that decision, Justice Butler indicated that she was satisfied that a demolition order was appropriately made if the evidence disclosed that the buildings on the property were in a dilapidated state and there was solid waste, which posed a hazard to public safety. [ 50 ] In this instance, the evidence before the Board was abundantly clear that the Building was in a dilapidated state and a public nuisance at the time the Demolition Order was issued. The Town had conveyed this to Mr. Yates.

I find no error in the Board finding that the Town exercised its authority appropriately despite the fact that the Demolition Order did not identify the specific statutory grounds on which it relied. [ 51 ] Mr. Yates also alleged before the Board and this Court that the Town did not exercise its authority appropriately as the Demolition Order was undated. Counsel for Mr. Yates referenced a comment by Mr. Yates’ counsel who appeared at the hearing before the Board as follows: Mr.

Chair I brought – I draw to the attention of the panel that the technical advisor has indicated that the notice of demolition order is not dated [ 52 ] The Board did not subsequently comment on this point in its decision. However, this is not surprising for the following reason. While this issue was briefly raised before the Board, counsel for Mr. Yates then said, “notwithstanding that, my client is prepared to proceed today with a caveat that it may be raised at a future point in time”. Nowhere in the rest of the hearing nor in final submissions does counsel for Mr.

Yates suggest that the failure to date the Demolition Order was a reason to set aside the decision of the Town. Not only was this not addressed in the submissions but no evidence was given by Mr. Yates that he suffered any prejudice from the fact that the Demolition Order was undated. [ 53 ] In any event, the evidence was clear that Mr. Yates received the Demolition Order on April 12, 2017 and the Town did not raise any issue that his appeal with the Board was filed outside 14 days from the date that council actually made the decision.

Further, the Town took no steps to enforce the Demolition Order before the appeal was filed with the Board. [ 54 ] As a result, I find that the Board did not err in law or jurisdiction in failing to set aside the Town’s decision based on the failure of the Town to place a date on the Demolition Order. 2. Did the Board err in law and/or jurisdiction in determining that the engineering firm that completed the structural assessment exhibited no bias against Mr. Yates? [ 55 ] The Board dealt with this issue in its analysis

section by succinctly stating the following: The appeal board finds no evidence that Mr. Sargent or Mr. MacDonald exhibited bias against Mr. Yates. [ 56 ] Mr. Yates indicated in his testimony that he took exception to Exploits Engineering Consultants Ltd. being chosen to do the structural evaluation report as the owner of that company, Mario MacDonald, lived in close proximity to the Building. Mr. Yates also stated that some of the assumptions made by Mr. Sargent in the report were incorrect.

As such, the Appellant asserts the Board should have made adverse inferences. [ 57 ] The Appellant also noted that the Board failed to comment on whether there was evidence of potential bias against Mr. Yates by the engineering firm itself. [ 58 ] With respect to potential bias, at the Board hearing, Mr. MacDonald confirmed that he lived on Bayview Road, opposite to the Building. In light of the proximity of his residence and the fact that other residents in the area were complaining that the Building was an eye sore, Mr. Yates submits that there would have been a reasonable assumption that Mr.

MacDonald held a prejudice or potential prejudice and would want to have the Building demolished. [ 59 ] While it is true that Mr. MacDonald lived in proximity to the Building, the evidence was that he lived on the opposite side of the road at a distance of approximately 200 meters from the Building. He also testified that the Building did not interfere with his view of the harbour and he had never lodged a complaint with the Town regarding the Building. Finally, Mr. MacDonald acknowledged that his only knowledge of Mr. Yates was that he was aware he was somebody that lived in Springdale.

This is insufficient evidence of bias and the Board did not err in failing to consider that is evidence of such actual or potential bias.

[ 60 ] With respect to the complaints regarding the manner in which Mr. Sargent completed the structural evaluation report, the Board was aware that Mr. Yates had filed complaints against both engineers and the engineering firm with PEGNL, alleging bias against him and conflict of interest. These allegations were dismissed with the letter of dismissal forming part of the record before the Board. [ 61 ] In dismissing the complaint against Mr. Sargent, the complaints authorization committee of PEGNL upheld the methodology he employed and found he had made the appropriate qualifications on his report.

They found that Mr. Sargent possessed the requisite experience and credentials to make reasonable assumptions based on external observations only. He was considered competent to arrive to the conclusions that he did. [ 62 ] Both counsel agree that it is not only actual bias but potential bias that may constitute bias in the hearing process, citing Wells, C.J.N. in McDonald v. Grand Falls-Windsor (Town) , 2000 NFCA 10 at paragraph 4 . However, as noted by Whalen, J., as he then was, in Yates v.

Central Newfoundland (Regional Appeal Board) , at paragraph 18, evidence of such potential bias and prejudice to the appellant must still be presented. [ 63 ] While the Board’s decision stated that there was no evidence that Mr. Sargent or Mr. MacDonald exhibited bias against Mr. Yates, it is correct to say they did not reference potential bias. However, it is clear from the Board’s summation of the evidence, as well as the record before this Court, that no evidence of either actual bias or potential bias was presented. The Board did specifically note that Mr.

MacDonald owned property on Bayview Road but the Building and its condition had no impact on his property. The Board also noted the complaints Mr. Yates made regarding the manner in which Mr. Sargent completed his report. However, his governing professional body found those complaints to be unfounded and Mr. Yates presented no evidence otherwise. Finally, no argument was advanced as to why the engineering company itself could be actually or potentially biased if neither Mr. MacDonald nor Mr.

Sargent were biased. [ 64 ] I therefore find that the Board did not err in law and/or jurisdiction in determining that the engineering firm that completed the structural assessment exhibited no bias against Mr. Yates. 3. Did the Board err in law and/or jurisdiction in determining that the Town held no bias against Mr. Yates? 4. Did the Board err in declining its jurisdiction by failing to consider how the Town’s motives to acquire Mr. Yates’ property factored into the decision to issue the Demolition Order? [ 65 ] I will deal with the above two grounds of appeal together.

As will be seen from the analysis below, while the issues were raised as separate grounds of appeal before this Court, the issues were not clearly separated in submissions before the Board. The Board therefore appears to have treated the submissions as going to the issue of bias and whether the Board appropriately exercised its discretionary authority. [ 66 ] The Board dealt with those issues in two sentences in its analysis section: After hearing the testimony of Mr. Yates and Mr. Sparkes, the appeal board finds no evidence that Council was biased against the Appellant.

The Board finds that the condition of 57 Bayview Road was a long standing issue and that Council had the discretionary authority to issue an order. [ 67 ] During the hearing before the Board, the issue of bias was raised by both Mr. Yates and his counsel. As noted above, Mr. Yates felt that his property was being targeted by the owners of retirement cottages across the street from the Building, the Warr family. A former town manager, Brian Warr, had also been the manager of the retirement cottages. Mr. Yates alleged that Mr.

Warr lodged complaints against the Building due to the fact that it was blocking the view of the harbour. [ 68 ] The Board also received evidence that the Town’s CAO/Manager, Jason Sparkes, and Deputy Mayor, Dave Edison, were both sons-in-law of the owner of the retirement cottages. This would have also made them brothers-in-law of Brian Warr. [ 69 ] The Town does not dispute that Mr. Sparkes, as well as Deputy Mayor Edison, are sons-in-law of the owners of Maggie’s Manor. However, Mr. Yates presented no evidence to the Board that it is the “Warr Family” who made complaints about his Building.

While he testified that Brian Warr had sent emails to the Town, when pressed about the location of those emails, Mr. Yates stated he was not sure of their location. When counsel for the Town asked him why they had not been filed as part of his documentation he stated “I guess we chose not to file them”. [ 70 ] Mr. Sparkes was also asked about those emails on cross–examination. However, he was not the Town CAO/Manager at the time the emails were allegedly sent and could neither confirm nor deny their existence. [ 71 ] Much of the argument of bias on this appeal centered on Mr.

Yates’ position that Deputy Mayor Edison was in a position of conflict of interest within the meaning of s. 207(1) of the Municipalities Act , in effect at that time. I note that the portions of the Municipalities Act dealing with a councillor’s conflict in effect at that time were repealed in November 2021. They were replaced by the Municipal Conduct Act , S.N.L. 2021, c. M-20.01 . That legislation sets out a comprehensive code of conduct for municipal officials, providing for appeals to this Court. [ 72 ] However, for the purposes of this appeal, the former sections of the Municipalities Act are applicable.

Former s. 207(1) directed that councillors who are considered to be in a conflict of interest shall not vote on or speak to a matter before the council or a committee of council. [ 73 ] Subsection 207(1) defined the kind of interest which will give rise to a conflict of interest. It stated: Conflict of interest

207 .

(1) A councillor shall not vote on or speak to a matter before the council or a committee of the council where (

a) the councillor has a monetary interest in the matter distinct from an interest arising from his or her functions as a councillor; (

b) the councillor has a monetary interest directly or indirectly in the matter ; (

c) a relative of the councillor has a monetary interest in the matter ; or (

d) the councillor is an officer, employee or agent of an incorporated or unincorporated company, or other occasion of persons, that has a monetary interest in the matter. [Emphasis Mine] [ 74 ] Subsection 207(2) further stated that, for the purpose of subjection (1), a relative of a councillor includes a father-in-law and brother-in-law of a councillor. [ 75 ] “Monetary interest” is broadly defined in s.2(1)(

o) of the Municipalities Act to mean an interest or benefit: (

i) consisting of money, exacted in money, relating to money or of which money is the object, (ii) capable of being measured by its financial value, cost, benefit, advantage or disadvantage, or (iii) affecting or potentially affecting a person’s financial position or worth, his or her assets or asset value but does not include remuneration or a benefit to which a councillor is entitled under this Act. [ 76 ] Mr. Yates submitted that Deputy Mayor Edison and/or his relatives (i.e. Brian Warr and/or Harold Warr) had a “monetary interest” in the matter. More specifically, Mr.

Yates alleged that a demolition of the Building would confer a benefit or advantage on Deputy Mayor Edison and/or his relatives because it would enhance the aesthetic of Maggie’s Manor, thus making it a more attractive place to live for current and prospective residents and theoretically increasing its property value. At the very least, Mr. Yates submitted that there was a reasonable inference that Deputy Mayor Edison’s father-in-law had an interest or benefit potentially affecting his asset value.

The financial benefit to him in respect of the demolition of the Building was more than de minimus and was different was from every other citizen within the municipality. [ 77 ] Mr. Yates initially stated that council failed to apply a reasonable

interpretation to the conflict of interest provisions of the Municipalities Act in allowing Deputy Mayor Edison to vote on the Demolition Order. As a result, the decision of the Board to confirm the Demolition Order should be overturned. [ 78 ] As this issue had not been raised before the Board, I asked counsel to file supplemental written briefs on whether this Court should entertain the Appellant’s new arguments on appeal. [ 79 ] Both counsel filed supplementary briefs.

However, in the Appellant’s supplemental brief, counsel conceded that the Board had no authority to make a determination of whether there was compliance with the conflict of interest provisions of the Municipalities Act referenced above. [ 80 ] The difference between a board’s ability to make a finding of “conflict of interest” in accordance with the Municipalities Act and its ability to make a finding of “bias” was dealt with by Justice Stack in the decision in Faulkner v. Eastern Newfoundland (Regional Appeal Board) , 2015 NLTD(G) 118, at paragraphs 24 through 31.

At paragraph 24, the Court noted that an alleged “conflict of interest” is defined in the legislation governing the establishment and governance of the municipality in question, while an allegation of “reasonable apprehension of bias” has developed in the common law. [ 81 ] Where a conflict of interest is raised against a councillor, the process involves the possible declaration of conflict and has implications for the decision of the municipality that is affected by the conflict. It could also result in a councillor’s seat being declared vacant.

As noted by Stack, J., at paragraph 28 of Faulkner , those allegations are not addressed by a board established under the URPA , but rather by the councillor, municipal council and the Court in accordance with a separate statutory appeal mechanism set out in the legislation governing the establishment and governance of the municipality. While Stack, J. was dealing with the City of Mount Pearl Act , R.S.N.L. 1990, c.

C-16 in that decision, the Municipalities Act , as it then read, also provided for separate mechanisms for dealing with a councillor’s conflict of interest, with appeals on those issues coming directly to this Court. [ 82 ] Clearly, the Board had no jurisdiction to determine whether Deputy Mayor Edison ought to have been declared to have a conflict of interest within the context of the Municipalities Act . It therefore could not have erred in law or jurisdiction in failing to make a determination on that issue.

I therefore do not need to consider whether the Court should consider this new ground on appeal from the Board.

[ 83 ] However, I agree with the submission of counsel for Mr. Yates that the Board still had jurisdiction to consider whether the activity of any councillors gave rise to an apprehension of bias. At paragraph 28 of Faulkner , Stack, J. refers to a decision of Leblanc, J. in Stroud v.

Newfoundland & Labrador (Central Regional Appeal Board) , 2010 NLTD 25 , in which he notes as follows at paragraph 12: … Where, as here, the Town proceeds to make its decision not knowing the location where the development is to occur, or at the least, having an erroneous understanding of the location, the Board is entitled to exercise its appeal function to override the decision made, If the authority makes its decision based upon an erroneous view of material circumstances, the discretion exercised is not immune from being overruled.

The same can be said where the authority acts with bad faith or improper bias or fails to follow procedural safeguards that permit proposals to be appropriately considered. The Board’s role then is not merely to “rubber stamp” the decision solely on the basis it was one made within the discretion of the authority. The process leading up to the exercise of the discretion is important.

Where that process is appropriate, it is then that the Board is not permitted to override the discretion exercised. [ 84 ] I agree with the above statement that the Board had jurisdiction to consider the issues of bad faith and reasonable apprehension of bias raised by Mr. Yates.

Those issues inform the determination of whether the Board appropriately exercised its discretion and followed procedural safeguards to ensure it appropriately considered its options with respect to the Building. [ 85 ] I will take a similar approach as Stack, J. did at paragraph 32 of Faulkner , in which he refused to take a narrow view of a self- represented litigant’s grounds of appeal that raised conflict of interest allegations.

He proceeded to consider the allegations of whether the activities of two councillors supported an allegation of apprehension of bias. [ 86 ] In considering the allegation before the Board, it is evident that the crux of Mr. Yates’ position on bias was that Deputy Mayor Edison and/or one of his close relatives had a financial interest in the decision to order the structural assessment and ultimately issue the Demolition Order.

The fact that Deputy Mayor Edison participated in council discussions and ultimately voted on these issues should have indicated bias or a reasonable apprehension of bias by the Town. [ 87 ] In respect of the allegation that the Town had improper motives in ordering demolition of the Building, the Board did not expressly deal with this issue in its analysis section. However, it did note in its decision that Mr. Yates had made this submission.

In particular, the Board noted: The Appellant noted that Council had considered expropriation or demolition and that he concluded that Council had motives to acquire his property. [ 88 ] The above statement was made in the same paragraph in which the Board noted Mr. Yates’ submissions that the Town was biased. As such, it appears that the Board considered the issue of whether the Town had an ulterior motive as an aspect of Mr. Yates’ submissions on bias and whether the Board acted appropriately in exercising its discretionary authority.

This is not surprising, as this specific issue was not referenced in the Notice of Appeal filed with the Board by Mr. Yates’ counsel. In the Notice of Appeal filed by Mr. Yates himself, the only ground set forth that could suggest that the Town was acting with improper motives is the ground alleging that the Town had a personal vendetta against Mr. Yates. [ 89 ] However, as noted in Stroud above, if the Town acted either in bad faith or with bias that would go to the issue of whether the Board appropriately exercised its statutory discretion. The allegation by Mr.

Yates that the Town was acting with improper motives implies bad faith. [ 90 ] Whether the Town was acting in good faith or with improper motives was put before the Board. At the hearing, Mr. Yates’ counsel suggested that the Town may have wanted the Building demolished for other reasons. In particular, Mr. Yates referenced the cleanup order that was issued on October 1, 2012, which ordered him to arrange for the “disposition or remediation of the Building so as to enhance surrounding properties”. As a result, Mr.

Yates felt that he was being targeted by the Town due to complaints allegedly made to the Town by the owners of the retirement cottages across the street from the Building. It was noted that the Building blocked their view of the harbour. [ 91 ] However, it is notable that the October 1, 2012 cleanup order relies on s. 404(1) (

l) as well as s. 404(1)(

f) of the Municipalities Act . Subsection 404(1)(

l) provides that the Town may make an order for removal of solid waste, noxious substances and substances or things which may be a hazard to public health and safety or which “adversely affects surrounding properties”. As such, the reference to disposition or remediation of the dilapidated building so as to enhance surrounding properties is in line with the proper exercise of the Town’s authority at the time that it issued the 2012 order. [ 92 ] Mr. Yates also submitted that the Town’s decision to demolish the Building versus expropriating the property is evidence that they had ulterior motives.

At a council meeting held on August 29, 2016, there was a discussion over whether the property should be expropriated versus the Building being demolished. [ 93 ] It was during that meeting that the Town resolved to accept a fee quotation to complete a structural engineering assessment of the property. Mr. Yates noted that decision was made at the time when he had a valid building permit and was intending to perform general repairs. Despite the fact that he had a valid permit, Mr. Yates says the Town did not notify him in advance that it was intending to take any of these actions.

He says that, to his knowledge, the only issue the Town had at that time was with respect to pigeons nesting in the Building. [ 94 ] Mr. Yates’ overall assertion is that the Town had decided it was either going to expropriate his property or issue a Demolition Order regardless of the repairs Mr. Yates was making to the Building or the outcome of the structural engineering assessment the Town had commissioned. [ 95 ] Mr.

Yates also said that the Town’s failure to advise him of concerns regarding structural issues with the Building prior to commissioning a structural engineering assessment is evidence the Town had ulterior motives for issuing the Demolition Order. He also alleged the Town failed to strictly comply with the legislative provisions and the duty of fairness owed to him. Mr. Yates said that, in failing to consider the Town’s improper motives and the lack of procedural fairness, the Board made an error of law.

[ 96 ] In support of this position, Mr. Yates refers to the decision of the Saskatchewan Court of Appeal in Markwart v. Prince Albert (City) , 2006 SKCA 122 , which involved an appeal of a city council decision to issue a demolition order. At paragraph 35, the court noted there must be strict compliance with the rules and a duty of fairness is owed to the property owner where the decision is tantamount to expropriation without compensation. [ 97 ] However, the Board also heard evidence from Mr. Sparkes that the Town had been dealing with Mr. Yates over concerns about the Building since 2010.

At the August 29, 2016 meeting, Mr. Sparkes said the Town was simply wondering what the future holds and where council would go in the event no work was completed on the Building. This was at a time when little to no work had been done under two prior permits. [ 98 ] Mr. Sparkes said council asked him to obtain information on the relevant provisions of the URPA and the Municipalities Act surrounding expropriation versus a demolition order.

After that meeting, it was determined that expropriation was not the correct route as there was no public interest or public use of the land. [ 99 ] As noted earlier in this decision, Mr. Yates was also advised by the Town in late August, 2016 of their decision to obtain a structural assessment. The Town further sought his co-operation in allowing the engineer to access his property but he would not agree. As a result, Mr. Yates was clearly aware of the Town’s concerns regarding the structural integrity of the Building at that time. Further, the Town made attempts to meet with Mr.

Yates earlier that year to discuss concerns about the Building. The correspondence and emails referenced bringing closure to the Building to avoid pigeons passing through. Mr. Sparkes also requested a meeting between Mr. Yates and council to discuss not only the pigeon issue but the condition of the Building and future plans. Mr. Yates would not meet with council. [ 100 ] Once council had received the structural evaluation report, it was determined that a demolition order was the only appropriate remedy. Mr.

Sparkes said that if the structural assessment came back positive or the Building’s integrity was up to par, the Town would have decided differently. [ 101 ] On the issue of reasonable apprehension of bias, I find no error of law or jurisdiction in the Board finding there was no evidence of bias on the part of the Town. Mr. Yates presented no evidence that a demolition of the Building would confer a benefit or advantage on Deputy Mayor Edison and/or his relatives.

In particular, no evidence was presented that the demolition of the Building would enhance the aesthetic view of Maggie’s Manor and thus make it a more attractive place to live for current and prospective residents, thereby theoretically increasing its value. [ 102 ] With respect to the related issue of whether the Town acted with improper motives, the Board did not specifically conclude in its decision that the Town acted with proper motives. However, it did note the submission of Mr. Yates that the Town acted with ulterior motives and summarized the evidence that was alleged to support that allegation.

The Board then concluded by not only finding no bias but by finding that the Town had exercised its discretionary authority appropriately. The Board’s summation of the arguments and evidence and its ultimate conclusions indicate that the Board did not decline its jurisdiction by failing to consider the Town’s motives. It merely made a finding that the Board appropriately exercised its discretionary authority. If the Board had accepted Mr.

Yates’ submission that the Town had acted in bad faith, it could not have concluded that there was a proper exercise of discretionary authority. [ 103 ] Further, a review of the entire record before the Board supports that conclusion. Mr. Yates’ submission that the Town was acting with improper motives was based on his own beliefs, without any evidentiary foundation to support it. [ 104 ] With respect to the submissions that the Town did not afford Mr. Yates procedural fairness, at two different points in its conclusion, the Board noted that the condition of the Building was a long-standing issue.

It had been raised with Mr. Yates since 2012 (the record reveals it may have even been as early as 2010). The Board also noted that Mr. Yates had not done adequate repairs under prior permits and had declined to meet with the Town to explore options. It then concluded by finding the Town’s discretionary authority was appropriately applied. [ 105 ] Overall, I find that a review of the Board’s decision including its

summary of the evidence and submissions, indicates that it did not fail to consider any of the arguments put forward by Mr. Yates. It merely found that Mr. Yates did not present any evidence to support the allegations. I can also find no error of law or jurisdiction in the Board’s findings after conducting a thorough review of the record before the Board. The allegations are not founded in the evidence. 5. Did the Board err in law/or decline jurisdiction by failing to give adequate reasons for its decision? [ 106 ] Mr. Yates’ final ground of appeal alleges insufficiency of reasons.

I invited counsel to provide supplementary written briefs on this issue in light of relatively recent case law from the Supreme Court of Canada that was not addressed in the initial briefs. [ 107 ] Both counsel then filed briefs referring to recent case law from this Court that has applied and interpreted the decision from the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 . [ 108 ] At paragraphs 36 to 41 of the decision in NARL Refining Limited Partnership v.

United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 , 2020 NLSC 100 , I noted the importance of reasons in allowing a court to develop an understanding of the decision maker’s reasoning process, quoting from various paragraphs in Vavilov . [ 109 ] At paragraph 35 of the decision in Buckingham v.

Law Society of Newfoundland and Labrador , 2022 NLSC 37 , Boone, J., then of this Court, specifically refers to paragraph 127 of Vavilov in which the Supreme Court of Canada notes that the principles of justification and transparency require a decision maker to meaningfully deal with the central issues and concerns raised by the parties.

Just as the duty of procedural fairness dictates that a party has the right to fully present their case, that party also has the right to receive responsive reasons demonstrating that the decision maker has actually listened to their arguments. [ 110 ] However, as the Supreme Court of Canada states at paragraph 128, administrative decision makers do not need to “respond to

every argument or line of possible analysis” or “to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”. But when an administrative decision maker fails to “meaningfully grapple” with key issues or central arguments, the parties may question whether the decision maker was alive to the issues before it. [ 111 ] In assessing the sufficiency of reasons, reviewing courts must keep in mind the caution at paragraph 91 of Vavilov that the review of an administrative decision cannot be divorced from its institutional context or the history of the proceedings.

While courts should conduct a robust review, reasons of administrative decision makers are not be held to the standard expected of a lawyer or judge (paragraph 92 of Vavilov ). [ 112 ] In asking a court to set aside an administrative decision on the basis of insufficiency of reasons, as I noted at paragraph 47 of NARL , the party seeking to have the decision set aside bears a heavy onus of showing serious shortcomings in the reasons. Those shortcoming must be sufficiently central or significant. [ 113 ] In this case, Mr.

Yates submitted that there is largely nothing in the Board’s decision to indicate that it grappled with the nuances of the bias allegations against the Town. It also failed to let Mr. Yates know why it found no evidence that council was biased, thereby failing to demonstrate that it actually listened to Mr. Yates. [ 114 ] Counsel for Mr. Yates relied on the decision in Faulkner in which Stack, J., at paragraph 37, noted another board’s failure to grapple with the nuances of a bias allegation.

While the decision in that case was referred back to the board due to inadequacy of reasons, that board has merely noted the ground of appeal but did not let the appellant know why the ground failed. Further, a review of that decision indicates there was an evidentiary basis for the allegation of reasonable apprehension of bias. [ 115 ] It is true that the reasons of the Board in this case are quite brief and they could have expanded more fully on their reasoning process.

However, in the context of this particular matter, I cannot say that the reasons do not meet the requirements of justification, transparency and intelligibility. I have reviewed the reasons in light of the record and history before the Board, and find that they are sufficient to allow Mr. Yates to understand why the Board decided as it did. [ 116 ] The Board set forth the relevant positions of the parties and the evidence put forward to support those positions.

This indicates that it was alive to the issues it had to decide. [ 117 ] The brevity of the analysis and conclusions in the reasons in this case can be explained by the Board’s short statement regarding the lack of supporting evidence. As noted in my analysis of the substantive grounds of appeal above, the Board’s findings are supported by the record and the Board’s summation of the evidence presented at the hearing.

While the Board did not expand on the law surrounding all issues, including the nuances of apprehension of bias, neither party presented it with any case authorities or detailed submissions on this issue. Even if it had, all that was before the Board to support such an argument was the Appellant’s own unsupported beliefs. CONCLUSION [ 118 ] In all the circumstances, I find the Board made no error of law or jurisdiction.

I therefore confirm the decision of the Board. [ 119 ] As the Respondent was the successful party, it is entitled to its costs of the appeal, including the costs of the interlocutory application for a stay of enforcement, on Column 3 of the Scale of Costs appended to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ Rosalie McGrath Associate Chief Justice