Pee v. Hamlet of Coral Harbour, 2022 NUCJ 20

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Pee v. Hamlet of Coral Harbour, 2022 NUCJ 20 Date: 2021-11-23 Docket: 17-20-376 CVA Registry: Iqaluit Applicant: Daniel Pee -and- Respondent: Hamlet of Coral Harbour __________________________________________________________________ Before: Justice Lyons Counsel (Applicant): J. Murdoch-Flowers Counsel (Respondent): M. Leduc Location Heard: Iqaluit, Nunavut Date Heard: May 6, 2022, In-writing Matters: Application for Judicial Review of decision removing applicant from Hamlet Council REASONS FOR DECISION (NOTE: This document may have been edited for publication)

I. INTRODUCTION [1] Daniel Pee (Mr. Pee) has filed an application seeking the judicial review of the May 8, 2020 decision of the Hamlet of CoralHarbour to remove him as a sitting Hamlet Councillor. [2] Mr. Pee seeks, through prerogative relief, declarations that he is entitled to sit as a Councillor and to receive all pay, privileges,stipends, and honoraria, retroactive to the date of the Applicant’s “unlawful ouster from the Hamlet Council.” [3] The Respondent Hamlet of Coral Harbour seeks the dismissal of the judicial review to allow for the Council’s decision to removeMr.

Pee from Council to stand. [4] For the reasons that follow the application for judicial review of the removal decision is granted and Mr. Pee is reinstated toCouncil. II. FACTS [5] The material facts are not in dispute. Mr. Pee is a long-time public servant having served as a municipal councillor for the HamletCouncil of Coral Harbour for over 12 years. Mr. Pee also has 8 years of service on the Hunter’s and Trapper’s Organization. Mr. Pee wasmost recently elected to Hamlet Council in October 2019. [6] On or around May 8, 2020, Mr.

Pee was informed by the Hamlet, in writing, that he had been removed from Council for“deliberately and knowingly breach[ing] the Hamlet’s Code of Conduct”. It was alleged Mr. Pee unilaterally, and without the knowledgeor consent of Council, conducted an investigation into a senior civil servant’s use of Hamlet funds relating to the purchase of a vehicle. [7] Mr.

Pee was informed, in the May 8, 2020 letter, that his alleged investigation violated the Hamlet’s Code of Conduct and“violated the trust that Council and the residents of the Hamlet of Coral Harbour placed in you.” [8] The Hamlet articulated the investigation constituted a violation of Mr. Pee’s Oath of Office and that

Section 6.2 of the CouncilProcedure Bylaw states “[f]ailure to comply with the Oath of Office and Confidentiality could result in disciplinary action up to andincluding removal from office.” The Hamlet finally concluded in its May 8 letter that “Council considers that your (Mr. Pee’

s) breach oftrust is so significant as to warrant your removal from Office, effective May 8, 2020.” [9] At no time was Mr. Pee provided an opportunity to respond to the concerns raised by Council, or defend his position as ademocratically elected official, prior to being removed from office. III. ANALYSIS [10] In the seminal Supreme Court of Canada decision of Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, the majority of the Court commenced its headnote as follows in relation to the sanctity of procedural fairnessin administrative decision-making processes: The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and therights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using

a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker .

Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive. [ 11 ] Mr. Pee was not permitted to participate in the process which ultimately led to his removal from office.

The significance of the failure to provide participatory rights to Mr. Pee cannot be overstated. The unilateral and ex parte manner of Mr. Pee’s removal from Council calls into question the legitimacy of the democratic institution of the Hamlet of Coral Harbour. [ 12 ] The

preamble to the Nunavut Elections Act , S. Nu. 2002, c. 17 pronounces on the sanctity of the democratic process in Nunavut at both the Territorial and Municipal levels: The purpose of this Act is to establish a regime for the election of members of the Legislative Assembly, municipal councils and district education authorities that promotes the meaningful exercise of the democratic rights and freedoms of the residents of Nunavut and the equality of opportunity to participate in determining the outcome of elections and the formation of local and territorial governments. [ 13 ] Mr.

Pee was removed from a position entrusted to him by the voters of Coral Harbour. While there is no question Council has the discretionary authority to sanction/and or discipline one of its members (in appropriate circumstances), and nor is there a question such discretionary authority is granted significant deference, on a reasonableness standard, by reviewing courts, such licence cannot be conflated with unfettered power to revoke the will of the electorate.

The discretion must be exercised in accordance with procedural fairness. [ 14 ] The Respondent’s assertion that the provision of the May 8, 2020 reasons for the decision constituted adequate procedural fairness is not tenable. The Respondent is also incorrect in its assertion that less-procedural fairness applied to its decision as the decision was further removed from an ordinary quasi-judicial process. [ 15 ] The removal of a democratically elected official is quintessentially a quasi-judicial process. Mr. Pee was not terminated from a position at the Co-Op or Northern Store.

For over a decade the residents of Coral Harbour had decided to exercise their franchise and place their trust in Mr. Pee to make sound governing decisions. It is unnecessary for me to analyse the legitimacy of the investigation he conducted, however, should Council have had a difference of opinion with Mr. Pee in how such an investigation occurred and the appropriateness of the investigation, Council should have put in place a procedurally fair process to examine the alleged overreach of Mr. Pee. [ 16 ] The decision to remove Mr. Pee from office was not made utilizing a fair or open procedure.

The political and social context of the removal was significant as the decision of Council reversed the will of the electorate. The decision had serious implications for both Mr. Pee and the electorate of Coral Harbour, and should have been afforded the highest degree of procedural fairness safeguards. It was afforded none. IV. CONCLUSION [ 17 ] I find the unilateral and ex parte decision of the Hamlet of Coral Harbour to remove Mr. Pee from Council was done without procedural fairness and cannot stand. I grant the application for judicial review and reinstate Mr.

Pee, nunc pro tunc to May 8, 2020, to Hamlet Council. Mr. Pee is entitled to all allowances, payments, and honoraria owed as if he had not been removed from Council. [ 18 ] Due to the significance of the Hamlet’s failure to provide procedural fairness to Mr. Pee, and to recognize his success on this application, I award Mr. Pee costs of this application in the global sum of $5,000, payable forthwith.

Dated at the City of Iqaluit this 6 th day of May 2022, ___________________ Justice C. Lyons Nunavut Court of Justice