The originating application of the Citizens’ Representative, Newfoundland and Labrador, was struck down for failing to disclose a cause of action where the relief sought was a declaration that the Citizens’ Representative was in a conflict of interest and that there was a reasonable apprehension of bias such that he should be dismissed from his position. His spouse was the CEO of the health authority in respect of which the Citizens’ Representative had received a request to investigate issues around mental health services delivery by that health authority.

27. July 2010 0

Administrative law – Investigations – Ombudsman – Cititzens’ Representative – Conflict of interest – Judicial review – Bias – Compliance with legislation – Jurisdiction of court – Legislative Assembly – Official appointments – Remedies – Certiorari – Practice and procedure – Parties – Standing – No reasonable cause of action

Burry v. Newfoundland and Labrador (Citizens’ Representative), [2010] N.J. No. 191, 2010 NLTD(G) 103, Newfoundland and Labrador Supreme Court Trial Division – General Division, June 3, 2010, R.P. Whalen J.

In June 2007, Terry Burry (“Burry”) requested that the Citizens’ Representative investigate the Eastern Regional Integrated Health Authority (“Eastern Health”) regarding “extremely poor services in the mental health continuum, in relation to a family member who was forced to go to another country for a proper diagnosis and health services.”

At the time of the request, the Citizens’ Representative was married to Ms. Beverley Clarke, Chief Operating Officer for Community, Children and Women and Mental Health Services (Eastern Health) and (Memorial) Clinical Assistant Professor of Community Health.

Ms. Clarke met with Burry regarding the complaint in the course of the investigation conducted by the Citizens’ Representative.

In April 2009, Burry applied for a declaration that the Citizens’ Representative was in a conflict of interest regarding the complaint and that there was an apprehension of bias by the Citizens’ Representative such that he should be dismissed from his position. The alternative relief sought was a review of the complaint by some other “suitable qualified and independent person” and an order quashing “past investigations and decisions of the Respondent with respect to all files involving Eastern Health.”

The Citizens’ Representative Act S.N.L. 2001 C-14.1 (the “Act”) provides, at s. 6 that only the Lieutenant-Governor in Council, on a resolution of the House of Assembly, may remove the Citizens’ Representative for cause. Therefore, Burry’s application could not succeed in obtaining a dismissal of the Citizens’ Representative, since the legislation provides that only the House of Assembly could provide such relief. The Court lacked jurisdiction to order that the Citizens’ Representative be dismissed, whether or not a conflict of interest or other cause was identified.

Similarly, the Act leaves the Court without jurisdiction to appoint an independent person to perform the functions of the Citizens’ Representative. Both dismissal of the Citizens’ Representative and the appointment of another party to carry out his duties, would fall within the sphere of activity protected by the privilege of the House of Assembly. Thus, those two claims were dismissed for lack of jurisdiction. The originating application was held to disclose no reasonable cause of action to support the specific prayer for relief. The Court also found that the action and claim fell within the meaning of a “frivolous and vexatious” pleading under the Rules of the Supreme Court, S.N.L. 1986 C-42 Sch.D.

Burry applied for an Order in the nature of certiorari quashing all past investigations of the Citizens’ Representative with respect to all files involving Eastern Health. The Court held that the past investigations and decisions of the Citizens’ Representative regarding Eastern Health were private law matters between the parties to those administrative investigations and decisions. No nexus could be found between Burry and the investigations and decisions that he sought to subject to the remedy of certiorari. Although persons with an identifiable interest in a decision might have a right to bring a review application, Burry did not meet the common law test in this case. Burry was not a party to the investigations or decisions he was seeking to quash.

The Court referred to the Supreme Court of Canada’s decision in Finley and Canada (Minister of Finance), [1986] S.C.J. No. 73 which held that a private individual could bring an action against a public body seeking review or a prerogative remedy against that public body, where the decision could be demonstrated to interfere with some private right of the individual, shown to cause the individual special harm. Thus, even if the investigation and decisions that Burry sought to quash were characterized as being in the public law domain, Burry could not demonstrate an interference with his rights or interests caused by the decisions in question. A sense of grievance against the Citizens’ Representative was not sufficient to stand in place of the required direct personal interest that would establish that a private right or special damage was occasioned by those decisions.

The Court held that Burry lacked standing to seek certiorari and that this aspect of his claim must also be struck.

The originating application was struck for failing to disclose a cause of action since the Court did not have jurisdiction to dismiss the Citizens’ Representative from office, or appoint another person in his place. There was also no sufficient nexus between Burry and the past investigations and decisions of the Citizens’ Representative regarding Eastern Health to permit him standing to seek certiorari.

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