J. 531/2005 2006 SKPC 93 IN THE PROVINCIAL COURT OF SASKATCHEWAN (SMALL CLAIMS DIVISION) AT REGINA SASKATCHEWAN Between: KEVIN EBERLE and LINDA BOXALL Defendant Trial Dates: October and 3, 2006 Appearances: Judith Falle For Plaintiff David A. Gerrand Q.C For the Defendant October 10, 2006 BOGDASAVICH, PCJ JUDGMENT CLAIM [1] The plaintiff alleges the defendant has injured his reputation and feelings, and has caused the plaintiff humiliation and distress, through her actions as Reeve of the Council of the Rural Municipality of Sherwood. The plaintiff claims general and aggravated damages of $5000.00 for these injuries. [2] The plaintiff is councillor for the Rural Municipality of Sherwood (“the R.M.”). The defendant is the Reeve of the Council of the R.M. Both the plaintiff and defendant were elected to their positions in November 2004. [3] At the council meeting on January 13, 2005, motion was made to award the contract for building inspection services to MuniCode Services Ltd. (“MuniCode”) the agency which held the existing contract. The plaintiff proposed an amendment to that motion that these services should instead be offered for tender. The amending motion was passed by council. [4] The defendant testified she was subsequently advised by the R.M.’s administrator that the plaintiff was in breach of the Building Bylaw with respect to his residence and that there were outstanding “deficiencies”. The defendant stated that she was concerned that the plaintiff had moved motion to tender MuniCode’s contract when he had failed to comply with that company’s requests to remedy his “deficiencies”. She perceived this to be conflict of interest and sought legal advice from the R.M.’s legal counsel. [5] On February 11, 2005, she received legal opinion Exhibit D-9 as to how to handle the issue respecting the perceived conflict of interest. The advice provided in part: “If the work remains outstanding at the present time Councillor Eberle would appear to have had pecuniary interest at the time of the vote which should have been handled under section 45(1) of the R.M. Act by declaring his interest and by not participating in the discussion and leaving the meeting.” [6] The defendant testified she planned to deal with the issue at the next council meeting and the Agenda for the February 16, 2005, meeting (Exhibit P-3) included an item titled: “MuniCode Building Inspection Deficiency Report 2004". It was agreed by counsel that report titled “Old Permits With Outstanding Deficiencies” was included in the materials provided to councillors prior to the February 16, 2005, council meeting. The report (Exhibit -7) indicates four requests had been sent to the plaintiff by MuniCode to comply with the Building Bylaw (one in each year starting in 2001 and ending in 2004). The four requests from MuniCode to the plaintiff were filed as Exhibits D-1, D-2, D-3, and D-4 during cross-examination of the plaintiff by counsel for the defendant. [7] The plaintiff testified in cross-examination he could not recall having received any of these four requests. His wife usually picked up the mail. He could not recall discussing them with his wife although he conceded he may have had such discussion. He also testified he did not read the agenda or information package for councillors prior to the February 16, 2005, meeting and had no prior notice the issue was on the Agenda or that his deficiencies/conflict of interest was to be discussed. [8] The plaintiff and two other councillors left the meeting before the issue was dealt with. The Minutes of that meeting (Exhibit P-4) indicate the meeting was very confrontational one and that the plaintiff and the two other members of council left at 7:40 p.m. in protest. [9] The item was tabled to be brought forward at the following council meeting on March 23, 2005. The Agenda (Exhibit D-6) for that meeting still described the issue as: “Building Inspection Deficiency Report 2004". The deficiencies report (Exhibit P-7) was again provided to councillors in their advance package of materials. The plaintiff testified he again failed to see the report prior to the meeting as he usually did not receive the information package provided to councillors until just before the meeting. [10] When the agenda item was reached at the meeting, councillor rose and raised “question of Privilege”. The minutes (Exhibit P-5) state as follows: “that we ask if Councillor Eberle [sic] in Conflict of Interest when he moved the amendment and voted on the motions passed January 13, 2005, regarding tendering out of services of MuniCode Building Inspectors as he was listed in the MuniCode Deficiency report as presented to Council. Question of Conflict has been raised with Councillor Eberle. The Reeve shall rule if Councillor Eberle was in fact in Conflict of Interest”. [11] The defendant then called minute recess and consulted privately with legal counsel and the administrator. The minutes then state: “Issue of Conflict of Interest Councillor Eberle, cannot assure that work was or was not completed on his property. Reeve Boxall made decision that perceives there is conflict of interest regard motions passed January 13th, 2005 regarding tendering out services of MuniCode, and Councillor Eberle has conflict on that regard. The Reeve reserved her decision about the ramifications of this action. Reeve asked Councillor Eberle to remove himself from the Chambers at 7:48 p.m. pursuant to Section 45(1) of The Rural Municipality Act, 1989. Councillor Eberle left the Council Chambers.” [12] Conflicting evidence was heard as to the exact discussion that occurred at the meeting. The defendant testified she tried to follow the legal advice provided in the legal opinion of February 11, 2005, but she got “very upset” and felt the meeting was getting out of control so she asked for recess to further confer with counsel. The plaintiff testified he was taken by “total surprise” when the issue was raised. [13] The defendant testified she then requested status report from MuniCode as to whether the plaintiff had complied with the requests to remedy the “deficiencies”. MuniCode’s report (Exhibit D-10) dated April 1, 2005, stated: “The deficient item from our final inspection of March 7, 2001 remains outstanding”. Upon reading this letter the defendant concluded that the plaintiff had “misrepresented the situation” to council by saying he did not know if the deficiencies had been remedied. [14] The defendant then prepared draft letter to the plaintiff in which she advised that until such time as he apologized to council and remedied the “deficiencies” he would “not be recognized by the chair to speak to or move motions”. Legal counsel testified he reviewed this letter and suggested some changes. The final draft of the letter was dated April 15, 2005, (Exhibit P-8), and was handed to the plaintiff just before the April 20, 2005, council meeting. Attached was an excerpt from Procedure Bylaw 03/04 respecting “Council Code of Ethics”. [15] The minutes for the April 20, 2005, council meeting (Exhibit P-6) indicate that the issue of the plaintiff’s sanctions was dealt with by Resolution 154/05. The Reeve read her decision imposing sanctions on the plaintiff. Another councillor immediately moved motion that she be overruled. The motion was defeated four to two. [16] The plaintiff wrote letter to the defendant dated July 15, 2005, (Exhibit P-9). In that letter he questioned his conflict of interest and pointed out that the section of The Rural Municipality Act, 1989, pursuant to which the defendant purported to act in imposing sanctions on him, namely section 45, was limited to conflict of interest situations in which “pecuniary interest” existed. He stated that as he had no pecuniary interest in the matter of the proposed tendering of bids for building inspection services, that the defendant should therefore rescind the sanctions imposed upon him respecting participation in council meetings. [17] The plaintiff received letter dated August 11, 2005, (Exhibit P-10) from legal counsel to the RM which was in response to his letter of July 12, 2005, to the defendant. This letter made reference to section 45 of The Rural Municipality Act, 1989, and purported to explain how the plaintiff had pecuniary interest in the matter of tendering the contract for building inspection services. The letter went on to elaborate on the legal position of the defendant and council with respect to the conflict of interest issue and the sanctions imposed upon the plaintiff. [18] There was an election in some voting divisions of the R. M. in November, 2005, and number of new councillors were elected. Neither the plaintiff’s position nor the defendant’s position were subject to this election. [19] On November 8, 2005, legal counsel acting on the plaintiff’s behalf wrote letter (Exhibit D-11) to legal counsel for the RM, advising that if the defendant did not remove the sanctions imposed upon the plaintiff at the next council meeting set for November 10, 2005, and allow the plaintiff to fully participate in the meeting, the plaintiff would proceed to make an application for judicial review of the defendant’s position and “we will ask for solicitor client costs”. [20] At the Council Meeting of November 10, 2005, the defendant advised the councillors that effective immediately she was removing all restrictions imposed upon the plaintiff at council meetings. [21] On December 15, 2005, the plaintiff commenced this action against the defendant. LEGAL ISSUES [22] The plaintiff alleges that he has sustained injury to his reputation and feelings, and that he has suffered humiliation, distress, and frustration caused by his inability to represent the ratepayers in his division of the Rural Municipality of Sherwood whom he was elected to represent. He alleges the defendant is liable to him upon the following three grounds: 1) that by not permitting the plaintiff to make motions or speak to motions at meetings of the council of the R.M. from April 20, 2005 to November 10, 2005, the defendant infringed the plaintiff’s freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms; 2) that the defendant acted without statutory authority in imposing sanctions upon him and that the defendant caused him harm “in the tort of abuse of public office”; and 3) that the defendant “owed duty of care to the plaintiff to ensure that she had clear and explicit statutory authority for the actions she took against him, and failed to discharge that duty of care and thereby caused harm to the plaintiff in the tort of negligence”. ANALYSIS Charter of Rights [23] The plaintiff has chosen to sue the defendant in her personal capacity and has not added the Rural Municipality of Sherwood or the three councillors who voted to uphold the Reeve’s decision as defendants. It was obvious from the evidence presented to the court that the R.M. council was divided into two factions. Council meetings in 2005, after the plaintiff’s election to council in November 2004, were described by legal counsel to the R.M. as confrontational and tension filled. This was local politics at its rawest and toughest. Accordingly, this lawsuit could be considered private dispute between two politicians that has spilled into the courts and not dispute between an individual and statutory authority. Section 32 of the Charter of Rights and Freedoms provides that it applies only to Parliament and the government of Canada in respect of all matters within the authority of Parliament and to the legislature and government of each province in respect to those matters within the constitutional competence of the legislature of each province. Mr. Justice McIntyre of the Supreme Court of Canada stated in Dolphin Delivery Ltd. v. RWDSU, 1986 CanLII (SCC), [1986] S.C.R. 573, that “The Charter does not apply to private litigation”. As result, it could be argued that the plaintiff’s claim pursuant to the allegation that his freedom of expression has been infringed contrary to section 2(b) of the Charter of Rights and Freedoms should be dismissed. That is, the plaintiff should be suing the R.M. and/or the “Reeve” and the three other councillors who voted to uphold her decision in their capacity as “councillors”. However, because the defendant was acting as Reeve of municipality, statutory body, and acted pursuant to statutory authority in imposing sanctions on another member of council, it is likely that the Charter would apply and, for the purposes of this case, will consider it does apply to the claim. [24] However, even if the defendant’s decision did infringe the plaintiff’s right to expression to some limited extent and could not be upheld pursuant to the sections of The Rural Municipality Act, 1989, relied upon in the R.M.’s legal opinion in the letter to the plaintiff August 11, 2005, and I make no conclusions as to which of the competing legal opinions is correct, I am not prepared to award damages to the plaintiff pursuant to section 24(1) of the Charter for the following reasons. [25] First, section 24(1) of the Charter has been interpreted by the Supreme Court as conferring the widest possible discretion” on the court. am of the opinion it would be neither appropriate or just to impose personal liability on the defendant when she was acting in her capacity as Reeve and she was advised by legal counsel for the R.M. that her decision was authorized by statutory provision. While her decision may have been politically advantageous to her and her supporters in council, it was not without some justification because (1) the plaintiff was in breach of the Building Bylaw, (2) there could be a “perceived conflict of interest” in the eyes of MuniCode and ratepayers in the R.M. in the plaintiff’s tendering motion of January 13, 2005, and (3) the Reeve did have some evidence before her that he had misrepresented the situation to council. [26] Second, the plaintiff did have another remedy open to him which he could have acted upon immediately. He could have applied to the court of Queen’s Bench for judicial review to quash Resolution 154/05 before the next council meeting. [27] Third, the restriction placed on the plaintiff by the defendant was not in his personal capacity. He was free to discuss municipal issues with the ratepayers in his division and within the municipality and with the media and others. He continued to vote on motions. In his testimony, legal counsel for the R.M. stated that the plaintiff “still participated” in council meetings. He had other councillors make motions for him and did considerable amount of talking at council meetings. Little evidence was presented to the court that the plaintiff was greatly impaired by the sanction imposed upon him by the defendant in carrying out his duties as councillor. [28] Fourth, I am not prepared to award damages to the plaintiff and thus enable him to gain a personal benefit from a limitation which only had a small effect on his right to represent his constituents. The dispute between the plaintiff and the defendant is a political one. A court should be reluctant to get involved. The dispute is best left to the ratepayers to deal with at municipal election. Tort of Misfeasance in Public Office [29] The tort of misfeasance in public office has its Canadian roots in the Supreme Court’s decision in Roncarelli v. Duplessis 1959 CanLII 50 (SCC), [1959] S.C.R. 121. This case made “gross abuse of legal power intended to punish” cause of action. In Odhavji Estate v. Woodhouse 2003 SCC 69 (CanLII), [2003] S.C.R. 263 Iacobucci J. stated as follows: am of the opinion that the tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: (i)deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful ...... The Saskatchewan Court of Queen’s Bench has applied this test in Country Plaza Motors Ltd. v. Indian Head et al, 2005 SKQB 442 (CanLII), [2005] S.J. No.689. Ball J. stated that one of the necessary elements of this tort was that “......... the public official must have been aware that the conduct was unlawful........” Even if the defendant acted without lawful authority in imposing the sanctions, the defendant had to be aware that her conduct was unlawful. I am satisfied that this requirement has not been met. The defendant was acting on the advice of legal counsel to the municipality and in fact once the April 20, 2005, meeting was completed, all further written communications to the plaintiff from the defendant respecting this issue were from legal counsel to the R.M. There is no evidence, nor even the suggestion, that legal counsel did not act in good faith in providing advice to the defendant. As a result, the plaintiff has failed to establish that the defendant acted with knowledge she had no legal authority to do what she did in imposing sanctions on the plaintiff. The defendant is not liable to the plaintiff pursuant to the tort of misfeasance in public office. Tort of Negligence [30] The plaintiff further relies upon the tort of negligence to claim damages against the defendant. He alleges that the defendant owed him duty of care “to ensure that she had clear and explicit statutory authority for the actions that she took against him”. While it is clear that the plaintiff and defendant were in a relationship that created a duty of care, I find that because the defendant was acting on the advice of counsel when imposing the sanctions upon the plaintiff that she has not breached the standard of care. In short, her actions were not negligent. CONCLUSION [31] The plaintiff’s claim is dismissed.
The plaintiff alleges the defendant has injured his reputation and feelings, and has caused the plaintiff humiliation and distress, through her actions as Reeve of the Council of the Rural Municipality of Sherwood. The plaintiff claims general and aggravated damages of $5,000 for these injuries. Both the plaintiff and the defendant were elected to their positions. The plaintiff is a councillor. The defendant determined that the plaintiff was in a conflict of interest and asked the plaintiff to remove himself from the Chambers pursuant to s. 45(1) of The Rural Municipality Act. There was a further determination by the defendant that the plaintiff had misrepresented his situation to the council. The defendant then prepared a letter to the plaintiff in which she advised that until such time as he apologized to council and remedied the 'deficiencies' that created the conflict of interest he would not be recognized by the chair to speak or to move motions. HELD: The claim is dismissed. 1) Even if the defendant's decision did infringe on the plaintiff's Charter right to expression to some limited extent and could not be upheld pursuant to the section of The Rural Municipality Act (the Court made no conclusions as to which of the competing legal opinions is right) the Court was not prepared to award damages to the plaintiff pursuant to s. 24(1) of the Charter. While the plaintiff's decision might have been politically advantageous to her and her supporters in council, it was not without some justification because the plaintiff was in breach of the Building Bylaw, there could be a perceived conflict of interest, and the Reeve did have some evidence before her that the plaintiff had misrepresented his situation to council. The Court was not prepared to award damages to the plaintiff so he could gain a personal benefit from a limitation which only had a small effect on his right to represent his constituents. The dispute between the parties is a political one. A court should be reluctant to get involved. 2) With regard to the tort of misfeance in public office, even if the defendant acted without lawful authority in imposing the sanctions in order to be actionable, the defendant had to be aware that her conduct was unlawful. This requirement has not been met. The defendant was acting on legal advice from legal counsel to the municipality. There is no evidence, nor even the suggestion, that legal counsel did not act in good faith in providing advice to the defendant. As a result, the plaintiff has failed to establish that the defendant acted with knowledge she had no legal authority to do what she did in imposing sanctions on the plaintiff. 3) With respect to the tort of negligence, the Court found that because the defendant was acting on the advice of legal counsel when imposing the sanctions upon the plaintiff, she has not breached the standard of care. Her actions were not negligent.