The Court dismissed an application to quash the decision of the Respondent Town, terminating the employment of the Applicant. Due to the section of the Municipalities Act, under which the Applicant held office, her employment was not governed by the law of contract. The Town owed the Applicant a duty of fairness, which they had discharged.

Administrative law – Decisions of administrative tribunals – Municipalities – Employment law – Termination of employment – Public law vs. Contract law – Public officer – Judicial review – Compliance with legislation – Procedural requirements and fairness

Cronkhite v. Nackawic (Town), [2009] N.B.J. No. 107, 2009 NBQB 110, New Brunswick Court of Queen’s Bench, April 27, 2009, P.C. Garnett J.

The Applicant was hired by the Respondent Town in 1989 and, in 2002, became Town Manager. That title was subsequently changed to Chief Administrative Officer. In September 2007, a number of complaints regarding the Applicant’s conduct were made to the Labour Relations Committee. Following several months of investigations, the Applicant was dismissed. The Applicant asked the Court to quash the decision of the Town to terminate her employment on the basis that the Town had not provided her with procedural fairness.

The issues before the Court were whether the Town owed the Applicant a duty to be fair, and if so, whether they fulfilled that duty. Pursuant to s. 74(5) of the Municipalities Act, the Applicant cannot be dismissed with notice, but only “for cause by the affirmative vote of at least two-thirds of the whole council.” Unlike most public servants, the Applicant’s employment was not governed by the law of contract. Section 74(5) imposed additional restrictions on the employer’s ability to dismiss the employee. Only New Brunswick and Prince Edward Island have provisions which prevent dismissal of “municipal officers” except for cause. These statutory provisions were introduced to combat the common-law principle that government employees served “at pleasure”. This principle meant that the employee could be dismissed without notice and without cause.

The Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, dealt with common-law principles which developed in relation to public office holders and their right to procedural fairness. When the employment relationship in question is governed by contract, then it is the law of contract that should govern rather than the public law duty of fairness. In this case, however, the Applicant’s employment status was not governed by the law of contract. The Town’s ability to terminate her employment was governed by s. 74(5) of the Act, which imposes extraordinary restraints on the Town’s ability to dismiss the Applicant. These restraints cannot be altered by contract and would be of limited value if they did not include a duty of fairness.

Having determined that the Town owed the Applicant a duty of fairness, the Court, upon reviewing the circumstances of the case, considered that the Town did fulfill the duty to act fairly. The Town’s duty to act fairly was a high duty, but it fulfilled that duty. The Applicant knew the nature of the complaints against her, she was given ample opportunity to respond to those allegations, and she knew the reasons for her dismissal. In the result, the application for judicial review was dismissed.

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