N.L. court reinstates unvaccinated councillor who was banned from small town's meetings
The Supreme Court of Newfoundland and Labrador has reinstated a Musgrave Harbour town councillor who was removed from his seat for missing meetings due to COVID-19 mandates.
In a Feb. 17 decision, Justice Glen Noel ruled the town "breached the duty of procedural fairness" owed to Grant Abbott when it vacated his seat in April, following months of conflict over the town council's vaccination policy for public meetings. The judge ordered Abbott be reinstated as a town councillor
In January 2022, the council enacted a regulation requiring all councillors be fully vaccinated against COVID-19 or provide a note from a doctor or nurse practitioner exempting the councillor from vaccination.
Abbott, who said he was unvaccinated on the advice of his doctor, voted against the regulation. According to the Supreme Court decision, the town clerk told Abbott ahead of the next town meeting, on Jan. 31, 2022, that he could sit in on the meeting by phone. Abbott connected to the meeting but was told he couldn't speak, and the minutes for the Jan. 31 meeting don't include Abbott as being in attendance.
At the meeting, the town passed a regulation that a councillor could attend a meeting by phone or video call for child-care, medical reasons, or if they were working out of town. The policy noted vaccination status was not a valid reason for attending a meeting remotely.
Councillor asked for leave from meetings
The town also removed Abbott from any committees until he either provided proof of vaccination or a letter of exemption from his doctor. In the following days, Abbott repeatedly sent emails asking for clarification on whether he'd be able to speak via phone at the next town council meeting. He was told by the town receptionist that there was no obligation to accommodate councillors if "they are breaking the policies and procedures in place."
Abbott also asked council to not subject him to Section 206 of the Municipalities Act, which allows for the removal of a councillor for failing to attend public meetings for three successive months unless granted leave by the council
Abbott connected to the Feb. 23 council meeting via a Google Meet link on the town's Facebook page but was not allowed to speak, and the minutes did not record him as having attended and do not mention any discussion of his Section 206 request.
The consequence of vacating a councillor's seat is a serious deprivation of a resident's right to participate in local government and democracy. - Justice Glen Noel
On April 29, Abbott's seat was vacated.
In his ruling, Noel noted that since Abbott requested leave from council, as allowed for in the Municipalities Act regulation, the town should have voted on it, and since they didn't, Section 206 didn't apply.
"The consequence of vacating a councillor's seat is a serious deprivation of a resident's right to participate in local government and democracy," wrote Noel, who noted that council's failure to vote on Abbott's request also deprived him of an opportunity to appeal the decision through a judicial review.
"A denial of procedural fairness invalidates council's reliance on Section 206 to vacate Abbott's seat."
Noel also ruled Abbott had attended the meetings in question, and pointed out the Municipalities Act allows councils to let members participate via electronic means that enable a councillor to listen and to be heard.
Noel ruled against Abbott's request for full indemnity costs, awarding him partial indemnity instead, saying while town council erred in removing him from council, their actions didn't rise to a level that would warrant full costs being awarded.
"Such costs are intended to compensate on a full-indemnity basis when there has been 'reprehensible, scandalous or outrageous conduct' on the part of the party," wrote Noel. "The town's conduct does not warrant an award of solicitor-client costs. The councillors are volunteers doing their best to serve the town and its residents."
