Indexed As: Ouellette v. Saint-André (Rural Community) New Brunswick Court of Appeal Larlee, Richard and Bell, JJ.A. March 14, 2013.

Transcription

1 Gisèle Ouellette (applicant/appellant) v. Saint-André, an incorporated Rural Community (respondent) (89-12-CA; 2013 NBCA 21) Indexed As: Ouellette v. Saint-André (Rural Community) New Brunswick Court of Appeal Larlee, Richard and Bell, JJ.A. March 14, Summary: The applicant was employed as chief administrative officer/clerk/secretary-treasurer by the respondent rural community from June 3, 1994, to December 15, 2010, when her employment was terminated for cause. The applicant applied for judicial review, seeking to set aside the termination, asserting that she was denied procedural fairness. The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 390 N.B.R.(2d) 309; 1011 A.P.R. 309 dismissed the application. The applicant appealed. The New Brunswick Court of Appeal dismissed the appeal. Municipal Law - Topic 428 Councils - Decisions of - Duty of fairness - The applicant was employed as chief the New Brunswick Court of Appeal found that the provisions of the Municipalities Act, by necessary implication, infused a duty of fairness into the contractual relationship between the application and the rural community - First, there was no provision in the Act that indicated that the employment relationship between the applicant and the rural community was governed by contract law - Second, the applicant did not have access to a non-curial review process - Third, the Act provided the applicant with significant job security - She could only be terminated for cause and then by a minimum vote of 2/3 of the whole council - The joint requirements of cause and a 2/3 majority lead to the conclusion that the applicant was entitled to an opportunity to address council - Finally, given the clear language of s (7) of the Act, the financial cost of error by the council with respect to the issue of "just cause" could be high - Surely, the Legislature intended that a chief administrative officer/clerk/secretary-treasurer would have to respond to allegations of cause - See paragraphs 10 to 20. Municipal Law - Topic 428 Councils - Decisions of - Duty of fairness - The applicant was employed as chief

2 the New Brunswick Court of Appeal found that the rural community owed a duty of fairness to the applicant - The court stated that "[t]he procedural fairness required in this case must, in my view, be minimal, yet reasonable and efficient. Those minimal features consist of an opportunity to know the concerns about one's performance that could lead to termination, and an opportunity to explain them or demonstrate why they have no merit. Obviously, an appropriate opportunity should be afforded to the office holder to make the necessary enquiries and prepare a response. Whether that response is in writing or in person, would no doubt be a matter to be determined by the Council." - See paragraphs 21 to 24. Municipal Law - Topic 428 Councils - Decisions of - Duty of fairness - The applicant was employed as chief procedural fairness - The application judge dismissed the application - The applicant appealed - The New Brunswick Court of Appeal dismissed the appeal - Since 2007, the applicant received auditors' reports which outlined certain of her shortcomings and required action by her - From 2007 to 2010, the Council expressed concerns to her about financial and reporting matters raised in those reports - The applicant had personal knowledge of Council's general concerns for some time - A November 10, 2010 letter from the auditors to the Council was the "triggering event" that pushed Council into action - Council met with the applicant on November 23 in order that she could respond to the concerns raised in the auditors' letter - Council did not suspend the applicant - She maintained access to her office and any material necessary to respond to concerns raised in the report - On November 29, the applicant attended another meeting of Council called specifically for the purpose of giving her an opportunity to respond - That meeting was followed by another on November 30, with the auditors present - The applicant was suspended without pay and told to return for another meeting on December 3, Until that time, she had access to her files and all that she needed to respond to Council's concerns - Council remained unsatisfied with the applicant's responses to the issues raised at the meeting on December 3 - Some of those concerns were very serious: namely, missing money in the water and sewer account, failure to file HST remittances, overpayments to the applicant, and her failure to include certain benefits of employment on her own T-4 report for income tax purposes - On December 3, council voted, in a closed door session, to dismiss the applicant - The rural community afforded the applicant the opportunity to show that money was not missing or explain its absence - She could do neither - The rural community fulfilled its duty of procedural fairness - See paragraphs 25 and 26. Officers - Dismissal - Duties of municipality - [See all Municipal Law - Topic 428].

3 Municipal Law - Topic 1601 Powers of municipalities - Exercise of powers - Natural justice - Duty of fairness - When required - [See first Municipal Law - Topic 428]. Droit municipal - Cote 428 Conseil municipal - Décisions - Devoir d'équité - [Voir Municipal Law - Topic 428]. Droit municipal - Cote 1026 Fonctionnaires - Congédiement - Obligations de la municipalité - [Voir Municipal Law - Topic 1026]. Droit municipal - Cote 1601 Pouvoirs des municipalites - Exercice - Justice naturelle - Conditions d'indispensabilité - [Voir Municipal Law - Topic 1601]. Cases Noticed: Ridge v. Baldwin, [1963] 2 All E.R. 66 (H.L.), refd to. [para. 10]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, dist. [para. 11]. Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 11]. Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 11]. Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 11]. Boisvenue v. St. Stephen (Town) (1987), 78 N.B.R.(2d) 287; 198 A.P.R. 287 (Q.B.), refd to. [para. 11]. Hughes v. Moncton (City) (1991), 111 N.B.R.(2d) 184; 277 A.P.R. 184 (Q.B.), affd. (1991), 118 N.B.R.(2d) 306; 296 A.P.R. 306 (C.A.), refd to. [para. 11]. Gerrard v. Sackville (Town) (1992), 124 N.B.R.(2d) 70; 312 A.P.R. 70 (C.A.), refd to. [para. 11]. Cronkhite v. Nackawic (Town) (2009), 344 N.B.R.(2d) 317; 884 A.P.R. 317; 2009 NBQB 110 (T.D.), refd to. [para. 12]. Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 16]. Malloch v. Aberdeen Corp., [1971] 2 All E.R. 1278, refd to. [para. 18]. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 21]. Authors and Works Noticed: Sullivan on the Construction of Statutes (5th Ed. 2008), p. 183 [para. 15]. Counsel:

4 Clarence L. Bennett, for the appellant; Christian E. Michaud, for the respondent. This appeal was heard on October 17, 2012, by Larlee, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages, by Bell, J.A., on March 14, Editor: Anick Ouellette-Levesque Appeal dismissed. Officers - Dismissal - Duties of municipality - The applicant was employed as chief the New Brunswick Court of Appeal found that the provisions of the Municipalities Act, by necessary implication, infused a duty of fairness into the contractual relationship between the application and the rural community - First, there was no provision in the Act that indicated that the employment relationship between the applicant and the rural community was governed by contract law - Second, the applicant did not have access to a non-curial review process - Third, the Act provided the applicant with significant job security - She could only be terminated for cause and then by a minimum vote of 2/3 of the whole council - The joint requirements of cause and a 2/3 majority lead to the conclusion that the applicant was entitled to an opportunity to address council - Finally, given the clear language of s (7) of the Act, the financial cost of error by the council with respect to the issue of "just cause" could be high - Surely, the Legislature intended that a chief administrative officer/clerk/secretary-treasurer would have to respond to allegations of cause - See paragraphs 10 to 20. Officers - Dismissal - Duties of municipality - The applicant was employed as chief the New Brunswick Court of Appeal found that the rural community owed a duty of fairness to the applicant - The court stated that "[t]he procedural fairness required in this case must, in my view, be minimal, yet reasonable and efficient. Those minimal features consist of an opportunity to know the concerns about one's performance that could lead to termination, and an opportunity to explain them or demonstrate why they have no merit. Obviously, an appropriate opportunity should be afforded to the office holder to make the

5 necessary enquiries and prepare a response. Whether that response is in writing or in person, would no doubt be a matter to be determined by the Council." - See paragraphs 21 to 24. Officers - Dismissal - Duties of municipality - The applicant was employed as chief procedural fairness - The application judge dismissed the application - The applicant appealed - The New Brunswick Court of Appeal dismissed the appeal - Since 2007, the applicant received auditors' reports which outlined certain of her shortcomings and required action by her - From 2007 to 2010, the Council expressed concerns to her about financial and reporting matters raised in those reports - The applicant had personal knowledge of Council's general concerns for some time - A November 10, 2010 letter from the auditors to the Council was the "triggering event" that pushed Council into action - Council met with the applicant on November 23 in order that she could respond to the concerns raised in the auditors' letter - Council did not suspend the applicant - She maintained access to her office and any material necessary to respond to concerns raised in the report - On November 29, the applicant attended another meeting of Council called specifically for the purpose of giving her an opportunity to respond - That meeting was followed by another on November 30, with the auditors present - The applicant was suspended without pay and told to return for another meeting on December 3, Until that time, she had access to her files and all that she needed to respond to Council's concerns - Council remained unsatisfied with the applicant's responses to the issues raised at the meeting on December 3 - Some of those concerns were very serious: namely, missing money in the water and sewer account, failure to file HST remittances, overpayments to the applicant, and her failure to include certain benefits of employment on her own T-4 report for income tax purposes - On December 3, council voted, in a closed door session, to dismiss the applicant - The rural community afforded the applicant the opportunity to show that money was not missing or explain its absence - She could do neither - The rural community fulfilled its duty of procedural fairness - See paragraphs 25 and 26. Municipal Law - Topic 1601 Powers of municipalities - Exercise of powers - Natural justice - Duty of fairness - When required - The applicant was employed as chief administrative officer/clerk/secretarytreasurer by the respondent rural community from June 3, 1994, to December 15, 2010, when her employment was terminated for cause - The applicant applied to set aside the termination, asserting that she was denied procedural fairness - The application judge dismissed the application, holding that the rural community did not owe a duty of procedural fairness to the applicant - On appeal, the New Brunswick Court of Appeal found that the provisions of the Municipalities Act, by necessary implication, infused a duty of fairness into the contractual relationship between the application and the rural community - First, there was no provision in the Act that indicated that the employment relationship between the applicant and the rural community was governed by contract law

6 - Second, the applicant did not have access to a non-curial review process - Third, the Act provided the applicant with significant job security - She could only be terminated for cause and then by a minimum vote of 2/3 of the whole council - The joint requirements of cause and a 2/3 majority lead to the conclusion that the applicant was entitled to an opportunity to address council - Finally, given the clear language of s (7) of the Act, the financial cost of error by the council with respect to the issue of "just cause" could be high - Surely, the Legislature intended that a chief administrative officer/clerk/secretary-treasurer would have to respond to allegations of cause - See paragraphs 10 to 20.