Derrick G. Dunne Applicant And: Michelle Patten FIRST Respondent And: TOWN COUNCIL OF THE TOWN OF GRAND BANK SECOND Respondent, 2022 NLSC 96

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Dunne v. Patten , 2022 NLSC 96 Date : June 09, 2022 Docket : 202206G0069 Between: Derrick G. Dunne Applicant And: Michelle Patten FIRST Respondent And: TOWN COUNCIL OF THE TOWN OF GRAND BANK SECOND Respondent Before: Justice Peter A. O'Flaherty Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: June 8, 2022

Summary: The Applicant claimed an interlocutory injunction to prohibit a municipal by-election from proceeding until the question of his qualification to be nominated and stand for election could be determined by the court. Held: An interlocutory injunction was granted to prohibit the town council and the returning officer from proceeding with a municipal by-election pending a decision on the merits on the qualification of the Applicant.

Appearances: Derrick G. Dunne Appearing on his own behalf Cindy E. Picco Appearing on behalf of the Respondents Authorities Cited: CASES CONSIDERED: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; R. v.Canadian Broadcasting Corp., 2018 SCC 5; Jean v. Swan River First Nation, 2019 FC 804; Myiow v. Mohawk Council of Kahnawake,2009 FC 690 STATUTES CONSIDERED: Municipal Elections Act, S.N.L. 2001, c. M-20.2; Municipalities Act, S.N.L. 1999, c. M-24; CorporationsAct, R.S.N.L. 1990, c. C-36 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched.

D REASONS FOR JUDGMENT O'Flaherty, J.: INTRODUCTION [1] This is an application for an interlocutory injunction to prevent the First Respondent, Michelle Patten (the “ReturningOfficer”) and the Second Respondent, the Town Council of the Town of Grand Bank (the “Council”), from proceeding with a municipalby-election on June 16, 2022. [2] The Applicant, Derrick Dunne, claims he is qualified to be nominated as a candidate for councilor in the by-election but thaton the nomination date, May 26, 2022, the Returning Officer improperly disqualified him from standing as a candidate under s. 15(2)(b)of the Municipal Elections Act, S.N.L. 2001, c.

M-20.2 (the “Municipal Elections Act”) by concluding he was employed by the Council. [3] On May 27, 2022, the Applicant issued an Originating Application for a declaration that he is qualified to be nominated as acandidate for councilor in the by-election. On the same date he issued an Interlocutory Application to prohibit the by-election fromproceeding until the question of his qualification can be determined.

The Returning Officer was the sole Respondent named, however atthe hearing of the Interlocutory Application on June 8, 2022, and with the consent of the parties, I ordered that the Council be added as aparty to the proceeding under Rule 7.04(2)(

b) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D (the “Rules”). [4] There is no dispute that the Applicant is de facto an employee of the Grand Bank-Fortune Ambulance Service Inc., (the“Grand Bank-Fortune Ambulance Service”) a corporation without share capital which operates a road ambulance service on the BurinPeninsula. There is further no dispute that the Applicant is de facto not an employee of the Council.

The position of the Respondents isthat because the Grand Bank-Fortune Ambulance Service appoints its Board of Directors in equal numbers from elected members of thetown councils of the Town of Grand Bank and the Town of Fortune, the Applicant is de jure employed by the Council. [5] For the reasons that follow, I am satisfied that there is a serious question to be tried, that the Applicant has demonstrated hewill suffer irreparable harm if the by-election proceeds before the question of his qualification is determined, and that the balance ofconvenience favours the granting of the injunction. [6] The Applicant is entitled to an interlocutory injunction pending a final decision on whether he is qualified to be nominated as acandidate in the by-election.

THE ISSUES I MUST DECIDE [7] An interlocutory injunction is an equitable remedy. While its availability is referenced in Rule 22.01 of the Rules, the authorityto grant injunctive relief is part of the inherent jurisdiction of a judge of the Supreme Court of Newfoundland and Labrador. Aninterlocutory injunction is not a legal claim or cause of action, it is a remedy granted from the date it is ordered until the legal claim orcause of action raised in a proceeding is finally decided on the merits by the court, provided the moving party can satisfy certain legaland evidentiary prerequisites.

[8] The parties agreed that the same test for the issuance of an interlocutory injunction applies to requests to delay an election as toother legal matters. The test is regularly applied by the Federal Court in relation to the elections of First Nation councils, and it has beenapplied by provincial and territorial superior courts in challenges to provincial and federal elections.

I therefore accept that as a matter oflaw an interlocutory injunction lies to prohibit a municipal election from proceeding. [9] The question of the Applicants’ entitlement to an interlocutory injunction must therefore be decided based on the applicationof the legal test for the granting of an interlocutory injunction outlined in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311.

The three-part test was restated more recently by the Supreme Court of Canada in R. v.Canadian Broadcasting Corp., 2018 SCC 5 at paragraph 12: At the first stage, the applications judge is to undertake a preliminary investigation of the merits to decide whether the applicantdemonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious. The applicant must then,at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused.

Finally, the third stage of the testrequires an assessment of the balance of convenience, in order to identify the party who would suffer greater harm from the granting orrefusal of the interlocutory injunction, pending a decision on the merits. [10] The three issues I must decide under the applicable test are: 1. Has the Applicants established there is a serious question (as opposed to a frivolous or vexatious issue) to be tried in the mainproceeding? 2. Has the Applicants established he is suffering or will suffer irreparable harm if an injunction is refused? 3.

Does the balance of convenience favor granting or refusing the injunction? THE LEGISLATION [11] Municipal corporations are vested with the rights, powers, immunities and liabilities expressly prescribed by law or incidentalto their existence. In this province, a town council is constituted as a municipal corporation, and its rights, powers, immunities andliabilities are prescribed by the Municipalities Act, S.N.L. 1999, c.

M-24, (the “Municipalities Act”). [12] The Municipalities Act provides the Council with the express power to: establish employee positions for the administration ofthe town (s. 65(1)); establish the salaries of its employees (s. 66); and, employ, suspend or dismiss an employee of the council (s. 70(4)). [13] This province has a separate statute, the Municipal Elections Act, which provides for a code governing the conduct ofmunicipal elections. The following provisions of that legislation are relevant to the matter before the Court: 2. In this Act (a) "by-election" means an election held under

section 6 or a special by-election held under

section 7; (b) "candidate" means a person who is nominated as a candidate under

section 16; (j) "election", unless the context indicates otherwise, means a general election, by-election or special election called under this Act; General elections 5.

(1) A general election of councils shall take place in 2001 and every 4 years after that.

(2) A general election under subsection (1) shall be held on the last Tuesday in September.

(3) The minister may, by order, defer a general election with respect to one or more municipalities for a period not exceedingone year in total.

(4) Notwithstanding subsection (1), a general election shall not take place in a municipality where a council has been elected forthat municipality within one year of the date of the general election. By-election 6.

(1) Where a vacancy occurs in the office of a councillor, or the number of councillors is increased, more than 12 months beforethe expiration of the term of office of the council, the council shall order a by-election for a councillor to hold office for the unexpiredterm of the council.

(2) A by-election held under subsection (1) shall be held in the same manner as an election held under this Act, and shall take place within 3 months of the vacancy or increase in the council.

(3) A council may, with the approval of the minister, defer a by-election to be held under this

section for a period not exceeding one year in total.

(4) Where no person is nominated for a by-election held under subsection (1) and the minister does not reduce the number of councillors, the council shall order a new by-election.

(5) Where, as a result of an increase in the number of councillors, a by-election is held to elect a councillor to represent an area added to a municipality, the qualifications of voters and candidates in that area are to be determined as if the by-election is the first election held after the establishment of the municipality. Adjournment of election 8.

(1) Notwithstanding sections 5, 6 and 7, election proceedings may be adjourned by the returning officer for a municipality where he or she believes that the health or safety of persons is at risk or that the integrity of the election process is at risk.

(2) Election proceedings may be adjourned under subsection (1) (

a) temporarily to another time on the same day or another place on the same day as specified by the returning officer; or (

b) to a day, time or place to be set by the returning officer.

(3) Where an election is adjourned under paragraph (2)(b), the election shall occur on a day not later than 7 days after the original date set for the election.

(4) While proceedings are adjourned, the returning officer shall make all reasonable effort to ensure that election materials are secured and that the integrity of the election is not compromised.

(5) A returning officer shall give notice to persons affected by an adjournment in a manner that he or she considers to be appropriate.

(6) Election proceedings that recommence after an adjournment shall continue for the time that, when added to the time preceding the adjournment, totals the time during which those election proceedings were to occur regardless of the adjournment.

(7) Where voting proceedings are adjourned, the counting of the vote shall not begin until the close of voting for the adjourned election proceeding. Election officials 13.

(1) The clerk shall be the returning officer for an election held under this Act and, where there is no clerk or the clerk is unable to act, the council shall appoint a returning officer.

(2) A council shall, in addition to a returning officer referred to in subsection (1), appoint an alternate returning officer to perform the duties of a returning officer under this Act in the event that the returning officer cannot perform those duties.

(3) Where a municipality is not divided into wards or polling divisions, elections shall be conducted by the returning officer and a poll clerk appointed by the returning officer.

(4) A returning officer may establish 2 or more polling divisions for the municipality and for each ward where wards have been established and shall appoint a deputy returning officer and a poll clerk for each polling division and shall designate the location of the polling divisions.

(5) Where a municipality is divided into wards, elections shall be conducted by a deputy returning officer and a poll clerk appointed for the ward by the returning officer where a ward is not divided into polling divisions.

(6) Where, on election day, an election official, other than the returning officer, is unable to perform his or her duties, an alternate election official shall be appointed by the returning officer to perform those duties.

(7) The following persons are ineligible to serve as a returning officer, alternate returning officer, deputy returning officer, poll clerk or other election official in connection with an election held under this Act: (

a) a councillor for the municipality in which the election is being held; (

b) a person who has been found guilty of an offence related to an election under this Act or a former Act;

(

c) a person who intends to be nominated or is nominated to be a candidate in the municipality in which the election is being held; and (

d) a person who is, voluntarily or for pay, working or intending to work on the campaign of a candidate in the election.

(8) For the purpose of paragraph (7)(b), a "former Act" includes the City of Corner Brook Act , City of Mount Pearl Act , City of St. Johns Act , Municipalities Act , Municipalities Act, 1999 and the St. Johns Municipal Elections Act . Nomination 14.

(1) The returning officer shall designate the place for receiving nominations.

(2) Candidates shall be nominated between the hours of 9:00 a.m. and 4:00 p.m. on one or more days determined by the council, excluding Saturday, Sunday and public holidays, from the twenty-eighth to the twenty-first day immediately before the election.

(3) Notwithstanding subsection (2), where a council decides to conduct nominations on only one of the days referred to in subsection (2), the hours of nomination shall be from 8:00 a.m. to 8:00 p.m. on that day.

(4) Notwithstanding subsections (2) and (3), a candidate for an election in a municipality that conducts its election under

Part V, shall be nominated between the hours of 9:00 a.m. and 4:00 p.m. on any of the days, excluding Saturdays, Sundays and public holidays from the thirty-fifth to the twenty-eighth day immediately before the election.

(5) Notice of the time and place fixed for nominating candidates shall be posted by the returning officer in not fewer than 2 places in the municipality for the 10 days before the time fixed for the nomination of candidates, and published in a newspaper having general circulation in the municipality, where there is such a newspaper, during that period. Qualification 15.

(1) A person is qualified to be nominated as a candidate for councillor who (

a) is eligible to vote in an election held under this Act in the municipality in which he or she is nominated to serve as a councillor; (

b) is not in arrears of taxes or other charges payable to the municipality; and (

c) is ordinarily resident for a period of 30 days before the commencement of the nomination period either in the municipality or in an area that on election day is part of a municipality.

(2) A person is not qualified to be nominated as a candidate for councillor (

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

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

c) where he or she is the chief administrative officer of an agency or body established by the council and that agency or body has an annual operating budget that must be approved by the council for which that officer seeks nomination as a candidate.

(3) A person is not qualified to be nominated as a candidate for councillor in an election where (

a) he or she was dismissed as a councillor or his or her seat as a councillor has been vacated under paragraphs 206(1)(

b) or (

e) or subparagraph 206(1)(f)(ii) of the Municipalities Act, 1999 ; or (

b) his or her seat as a councillor was declared vacant under subsection 20(2) of the City of Corner Brook Act or the City of Mount Pearl Act , subsection 206(2) of the Municipalities Act, 1999 or

section 11 of the City of St. Johns Act , where that election is held not more than 2 years after the date on which that person was dismissed as a councillor or his or her seat was vacated or declared vacant. (4) Subsection (2) does not apply to a volunteer firefighter of a municipality who is not a fire chief.

(5) A person is not qualified to be nominated as a candidate for councillor if he or she is a (

a) member of the House of Commons or the Senate of Canada; (

b) member of the House of Assembly of the province; or (

c) judge of the Supreme Court or the Provincial Court of the province.

(6) Notwithstanding subsection (3), where, before the coming into force of this section, a councillors seat was vacated under

paragraph 206(1)(

e) of the Municipalities Act, 1999 , that councillor may be nominated as a candidate for councillor and is eligible for election in the first general election of councillors held after the coming into force of this section.

(7) Notwithstanding subsection (2), a person referred to in that subsection who is not a clerk, manager or department head, excluding a volunteer department head, with a council may request, and the council shall grant to that person, a leave of absence in order for that person to be nominated as a candidate for council.

(8) A person to whom a leave of absence is granted under subsection (7) who is elected as a councillor shall resign from his or her employment with the council before taking his or her oath or affirmation of office as a councillor. Petitions 68.

(1) A petition complaining of (

a) an unlawful return or election of a councillor; (

b) no return or a double return; or (

c) an unlawful act committed by a candidate returned, by which that candidate is alleged to have become disqualified to serve on the council, may be presented to the court by a candidate for the election or another person who had the right to vote at the election.

(2) The production of the list of electors containing the name of the petitioner as set out in the petition, or a copy, certified by the returning officer to be a true copy, of the list used in the election in the municipality to which the petition relates is conclusive evidence that the petitioner could lawfully present the petition.

(3) Where the petitioner was a candidate at the election, or if there is no list of electors or the petitioner's name does not appear on the list, an affidavit by the petitioner that he or she was a candidate or an elector at that election is conclusive evidence that the petitioner could lawfully present the petition.

THE EVIDENCE [ 14 ] The evidence in this case was entered by Affidavit and while no cross-examination was requested some amplification was provided by the parties. [ 15 ] The evidence showed that the Applicant had been disqualified from nomination for election to Council during the most recent general election held on September 28, 2021, on the same grounds relied upon for his disqualification from nomination in the by-election to be held on June 16, 2022. [ 16 ] The Applicant submitted detailed evidence with respect to his employment with Grand Bank-Fortune Ambulance Service as a Primary Care Paramedic, where he has been employed since June 4, 1998, some of which he informed the Court he had obtained after he was previously disqualified in September 2021. [ 17 ] The evidence submitted included a letter dated September 7, 2021, from the Chief Administrative Officer of the Town of Fortune, which is responsible to administer the Grand Bank-Fortune Ambulance Service, confirming as follows: This correspondence is to clarify the status of employment of Derrick Dunne of 16 Elizabeth Avenue, Grand Bank, as Primary Care Paramedic.

Derrick has been employed since June 4, 1998 by the Grand Bank Fortune Ambulance Service. He is NOT an employee with the Town of Fortune: however, in 2019 upon consultation with the Canada Revenue Agency as per the payroll process under the Town of Fortune (i.e. RP 0002), the Grand Bank Fortune Ambulance Service was provided the appropriate account for payroll remittance. Subsequently, the Collective agreement for the Town of Fortune DOES NOT include employees for the Grand Bank Fortune Ambulance Service.

I deem it appropriate to advise that the Grand Bank Fortune Ambulance Service has their own terms of employment – as this is a not-for- profit incorporated body. Furthermore, the group insurance plan and the employer driven pension benefit (i.e. RRSP’

s) are identified in the Terms of Employment for the Grand Bank Fortune Ambulance Service employees. [ 18 ] The evidence also included the Certificate of Incorporation and the constating documents of the Grand Bank-Fortune Ambulance Service. The documentation establishes that it is an incorporated body, in particular a corporation without share capital under

Part XXI of the Corporations Act , R.S.N.L. 1990, c. C-36 . The Applicant further submitted the current Terms of Employment and Discipline Policy applicable to employees of the Grand Bank-Fortune Ambulance Service, his most recent bi-weekly pay stub and his 2021 T4 slip.

The Applicant’s employer is identified on all documents as the Grand Bank-Fortune Ambulance Service. [ 19 ] The Applicant also submitted a legal opinion from counsel in Marystown, Newfoundland and Labrador (“NL”), that he obtained regarding his qualification to stand for election to the Council in September 2021, and a copy of a legal opinion dated August 27, 2021, from a St.

John’s law firm to the CAO of the Town of Fortune regarding the qualification of a fellow employee with the Grand Bank-Fortune Ambulance Service to be nominated for election to the municipal council of the Town of Fortune in the same general election on September 28, 2021.

[ 20 ] I explained to the Applicant that the legal opinions of counsel on an issue of domestic law were not admissible to prove the law of the province, however these documents may be admissible for other reasons. The Court was told, and the Respondents did not contest the fact, that the Town of Fortune had requested its legal opinion to determine the qualification of a co-worker of the Applicant, Mr. Kenneth Keeping, to be nominated as a candidate in the September 28, 2021, general election for the Town of Fortune and that Mr.

Keeping was determined by the Town of Fortune to be qualified for nomination as a candidate in the general election. [ 21 ] The Applicant informed the Court he obtained a legal opinion because he was considering challenging the results of the general election held on September 28, 2021, by petition, because the previous returning officer had improperly disqualified him as a candidate when she also concluded that he was employed by the Council and was not qualified for nomination as a candidate under s. 15(2)(b).

The Court was further told that the Applicant decided not to contest the September 28, 2021, general election by petition after he had a discussion with the now deceased Deputy Mayor concerning the illness of the latter, and because of the cost and disruption to the Applicant and the Council of the challenge to the entire general election. [ 22 ] The Respondents submitted the Affidavit of Michelle Patten deposing that there were six councilors and a mayor elected to the Council in the general election held on September 28, 2021, and that the next general election would be held on September 30, 2025.

The Returning Officer confirmed that upon the death of the Deputy Mayor on April 29, 2022, a vacancy was created on Council which under the Municipal Elections Act was required to be filled within 90 days of the vacancy occurring. I note that the same

section of the Municipal Elections Act also permits the Council, with the approval of the Minister, to defer a by-election to be held under this

section for a period not exceeding one year in total. [ 23 ] The Returning Officer confirmed that the Applicant came to the Town Office on the nomination day set for May 26, 2022, at the appropriate time with a proponent and a seconder, and that she advised the Applicant that she could not accept his nomination for Council as he was not qualified to be nominated. Specifically, the Returning Officer concluded that the Applicant met the requirements under s. 15(1) of the Municipal Elections Act but he was disqualified pursuant to section 15(2) (

b) of the Municipal Elections Act for the following reason: Since our mayor and three councillors make decisions regarding the operations of the corporation, including human resources, finance, legal contracts, etc., and Mr. Dunne works for the corporation under the direction of the Board of Directors, Mr.

Dunne is an employee of council. [ 24 ] The Returning Officer further deposed that the ballots have been ordered for the by-election with the names of the three qualified candidates on the ballots, and that the Council has incurred the cost of the ballots and the overtime worked on the nomination day, May 26, 2022. [ 25 ] The Respondents also submitted the Affidavit of Rex Matthews the Mayor of the Town of Grand Bank. He deposed to the difficulty the Council would encounter in filling two committee positions which had previously been filled by the Deputy Mayor if the by-election was delayed.

He also suggested that because the Council at present has an even number of members, it could become difficult for the Council to “continue to function.” The remaining paragraphs of the Affidavit outlined the argument by which the Returning Officer and the Council took the position that the Applicant was not qualified, and referenced the history of the Grand Bank- Fortune Ambulance Service before it became an incorporated body. [ 26 ] On the hearing of the application it was evident to me that there is no material dispute on the facts. The question on the merits will turn on the

interpretation of the disqualifying clause relied upon by the Council and its application to the facts. ANALYSIS 1. Serious Question to be Tried [ 27 ] In the main proceeding, the Applicant claims a declaration that he is qualified to be nominated for election to the Council in the June 16, 2022, by-election.

He asserts that he is employed by a separately constituted corporation and therefore he is not, by definition, “employed by the Council,” which is a separate legal person. [ 28 ] There is no dispute on the part of the Respondents that the Applicant is employed by the Grand Bank-Fortune Ambulance Service and he is not on the payroll of the Council, either as a member of the bargaining unit or as a management employee.

The argument raised by the Respondents is based on the fact the Applicant is employed by an entity which must, by its By-Laws, and in particular By-Law No. 1 at paragraph 6, appoint its Board of Directors from elected members of those two councils.

As the Returning Officer stated in a letter to the Applicant dated May 26, 2022, giving the reason for his disqualification, “All activities and operations of the Corporation are overseen by the Board of Directors and therefore, I conclude that you are an employee of council and therefore not qualified for nomination.” [ 29 ] In determining whether there is a serious question to be tried with respect to the Applicant’s claim to a declaration that he is qualified for nomination in the June 16, 2022, by-election, or to put it another way, that his is not a frivolous claim, it is not necessary at this stage, nor is it strictly speaking my role, to decide the merits of either the Applicant’s claim or the defence raised by the Respondents.

Those are clearly matters for the hearing on the merits.

It is appropriate however to comment on the submission of the Respondents that there is no serious question to be tried in this case. [ 30 ] The Respondent argues that there is no serious question to be tried because the Applicant is wrong when he says in his materials that “The Grand Bank Town Council has no say as to the operations of the Grand Bank/Fortune Ambulance service Inc. hiring, firing, budget, expenditures, day to day operations, etc.” [ 31 ] The Respondent further argues that there is no serious question to be tried based on an argument which, if I have followed it correctly, may be summarized as follows.

In the constating documents of the Grand Bank-Fortune Ambulance Service the qualification of persons to serve on the Board of Directors is restricted in By-Law No. 1 at paragraph 6 to elected members of the Town Councils of Grand Bank and Fortune. The Directors of the corporation are responsible to manage the business affairs of the Corporation which

would include the management of the employees of the Grand Bank-Fortune Ambulance Service. The Municipalities Act outlines the duties of the mayor and councilors. The Directors of the corporation, who hold office by virtue of their status as elected members of the two councils, must represent the interests of their town when managing the business and affairs of the corporation. The Directors, as municipal councilors, must act with the best interests of the Council in mind and are subject to the direction and control of the Council which they cannot ignore.

Therefore, the Returning Officer concludes, employees of the Grand Bank-Fortune Ambulance Service are employed by the Council. [ 32 ] As noted, there is no dispute that the Applicant is a de facto employee of the Grand Bank-Fortune Ambulance Service.

There is further no dispute that the Applicant’s co-worker was found to be qualified to be nominated as a candidate for the same general election by the Town of Fortune, the other municipality involved in the operation of the Grand Bank-Fortune Ambulance Service. [ 33 ] Even if the Respondent established that the members of Council on the Board of Directors exercise control over the business and affairs of the Grand Bank-Fortune Ambulance Service, and that they do so on behalf of and are subject to the direction of Council by the means argued by the Respondents, the question is not whether the Council exercises control over the Grand Bank-Fortune Ambulance Service.

The question is whether the Applicant is “employed by the Council” for the purpose of eligibility to run for municipal office. I note that if he is “employed by the Council” as the Respondents claim, then by the provisions of ss. 15(7) and (8) he may apply for a leave of absence and the Council shall grant such a leave. Furthermore, the law is clear that disqualifying clauses of the type found in subsection 15(2) (

b) of the Municipal Elections Act which restrict the right of citizens to participate in representative democracy will be strictly construed by the courts. [ 34 ] Based on the record before me, there is not only sufficient evidence to establish that there is a serious question (as opposed to a frivolous claim) to be tried in the main proceeding, there is a prima facie case established on the undisputed evidence that the Applicant is entitled to a declaration that he is qualified to be nominated for the by-election. That does not however establish his automatic entitlement to an interlocutory injunction. 2.

Irreparable Harm [ 35 ] The second requirement for the granting of an interlocutory injunction is that the Applicant must show he has suffered or will suffer irreparable harm if the injunction is not granted. [ 36 ] The Applicant submits that he will suffer irreparable harm because he will be prevented from participating in representative democracy in the municipality until September 30, 2025, which is a fundamental democratic right of every Canadian citizen who qualifies to be nominated for election in a municipality, and the loss of that right is one which is not readily quantifiable in monetary terms. [ 37 ] The Respondents submit that irreparable harm must be clear and not speculative and that even though the Applicant will not have the opportunity to campaign for Council or have the opportunity to be elected for more than three years he “is not prevented in participating in political life as a citizen and contributing and speaking out on issues of interest to him in the town.” The Respondents further submit that the Applicant has not taken any steps to address his disqualification to be nominated since September 2021. [ 38 ] In RJR-MacDonald , supra, at paragraph 64, the Supreme Court of Canada explained what must be demonstrated to establish that a claimant is suffering, or will suffer, irreparable harm if the court does not intervene to prevent the conduct of which is complained.

The court stressed that the focus is on the nature and intensity of the harm, not its magnitude, and defined irreparable harm as “harm that either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” It is now well-accepted that the first category of irreparable harm in the RJR-MacDonald definition is properly reformulated as “harm that (either) cannot be readily quantified in monetary terms,” which means that irreparable harm can be established by evidence that shows that damages are difficult to ascertain rather than impossible to ascertain. [ 39 ] In my view the question of irreparable harm should be determined by reference to the nature and intensity of the harm which will result in this case to the Applicant if the injunction is not issued.

The Federal Court has held that the harm in question, the loss of a citizen’s right to participate in the representative democratic election process, is harm of a nature that cannot be quantified in monetary terms and that cannot generally be remedied in any other manner than by interlocutory relief (See: Jean v. Swan River First Nation , 2019 FC 804 , citing Myiow v. Mohawk Council of Kahnawake , 2009 FC 690 ). [ 40 ] While not raised by the Respondents, a further consideration on the issue of irreparable harm is whether an applicant has a continuing right to challenge an ongoing election.

In Newfoundland and Labrador,

Part IX of the Municipal Elections Act deals with petitions before the Court, which may be made on the basis of a number of specified irregularities. However, the grounds for a petition in this province are quite specific, especially when compared with other municipal elections legislation, and do not extend to the validity of the election. Furthermore, the provisions of

Part XI do not seem to encompass the specific situation in this case where a prospective candidate alleges his nomination was improperly rejected. [ 41 ] Finally, I reject the position that the Applicant has taken no steps to address his disqualification to be nominated since September 2021. The Applicant obtained a legal opinion from a local firm that he was qualified for nomination, and confirmed the position of the Town of Fortune with respect to the qualification of Mr. Keeping.

He has also obtained the additional documentation regarding the status of his employment from the administrator of the Grand Bank-Fortune Ambulance Service. The explanation provided by the Applicant for not proceeding to challenge the entire election in September 2021 was in my view a reasonable one. [ 42 ] For these reasons, I conclude that the Applicant has established he will suffer irreparable harm if the interlocutory injunction is not granted. 3. Balance of Convenience [ 43 ] In the third part of the test in RJR-MacDonald the balance of convenience, or inconvenience, must be weighed.

The question to be addressed is whether the Applicants would suffer greater harm from the refusal of the remedy pending a decision on the merits than

the Respondents would suffer if I granted it. [ 44 ] The Applicant has established in my view that he will suffer irreparable harm from the loss of his fundamental right to participate in the representative electoral process for more than three years. The harm suffered by the Council if the injunction is granted will be the minor monetary loss of the cost of the printing of the ballots, and the transitory inconvenience of the Council operating without a full complement of members for a short period of time and having to cover for two committees.

The Respondents confirmed that the Council has six members, one more than the minimum number required by the legislation. With all due respect, the suggestion that because the Council will have an even rather than an odd number of members that this will lead to the Council being placed in limbo is completely speculative. [ 45 ] I have concluded that greater harm will flow from the refusal of the remedy than from the granting of the remedy pending a decision on the merits, and I find that the balance of convenience favours the granting of the interlocutory injunction.

DISPOSITION [ 46 ] I have concluded that there is a serious issue to be tried, that the Applicant will likely suffer irreparable harm if the injunction is not granted pending a decision on the merits, and that the balance of convenience favours the granting of the interlocutory injunction. [ 47 ] I therefore order: 1. An interlocutory injunction prohibiting the Respondents from proceeding with the by-election to be held on June 16, 2022, pending the determination of the Originating Application on the merits; and, 2.

The Originating Application will be heard on the merits on an expedited basis. [ 48 ] The Originating Application will be returned on June 15, 2022, at 1:30 p.m. to set a date for the hearing. [ 49 ] Costs of the within Application shall be costs in the cause. _____________________________ Peter A. O'Flaherty Justice