This was an appeal by Ouelette from a decision dismissing her application for judicial review of the respondent’s decision to remove her from her position as Clerk, Treasurer and Chief Administrative Offier of the rural community. Her appeal was dismissed. The Court of Appeal found that the appellant, who was an officer of the rural community, had a right to procedural fairness on termination which was imported into the contractual employment relationship by the provisions of the Municipalities Act, R.S.N.B. 1973, c.M-22. The requirements of procedural fairness in this case were met, through an appropriate opportunity to know of the concerns about her performance that could lead to termination, and an opportunity to explain them or demonstrate why they have no merit. While Council owed Oulette a duty of procedural fairness on termination, it met its duty in that regard. As a result, the appeal was dismissed.

Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Employment law – Termination of employment – Public law vs. Contract law – Judicial review – Natural justice – Procedural requirements and fairness

Ouellete v. Saint André, [2013] N.B.J. No. 80, 2013 NBCA 21, New Brunswick Court of Appeal, March 14, 2013, M.E.L. Larlee, J.C.M. Richard and B.R. Bell JJ.A.

The Council of the respondent rural community of Saint-André, New Brunswick voted unanimously to remove the appellant Ouelette from her position as Clerk, Treasurer and Chief Administrative Officer, a position from which she could only be removed if dismissed for cause by a two-thirds vote of the entire Council. Ouelette sought judicial review in the Court of Queen’s Bench and an order that her termination be declared void ab initio because Council had failed to afford her natural justice and procedural fairness. On judicial review, the application judge accepted the positions advanced by Saint-André, that there was no duty of procedural fairness as the law of contract, not public law, governed the termination of her employment; and that, if such a duty existed, was met. Ouelette appealed to the Court of Appeal.

Ouelette worked for the respondent since 1994, first as Clerk and Treasurer and later, in 2001, was appointed to the newly created position of Chief Administrative Officer. She was an exceptional employee until 2007 when her performance began to deteriorate. Over the next few years, Saint-André’s auditors made a number of recommendations for improvement to the financial administration of the rural community which were not always followed and serious errors were recurring each year. The mayor and Council met with Ouellette over several years to discuss the concerns and found her response unsatisfactory. In 2010, the mayor and Council met again with Ouellette to discuss problems, including missing money in the water and sewer account, failure to file HST remittances, overpayments to Ouellette and failure to include certain benefits of employment on her own T-4 for income tax purposes. Again, her responses were found unsatisfactory and Council adopted an unanimous motion to terminate her employment. At the time, the provisions of the Municipalities Act provided that officers employed by the municipality were entitled to hold office until dismissal for cause by the affirmative vote of at least two thirds of the whole Council.

Ouellette sought judicial review of the termination decision, claiming she was terminated without being given any real opportunity to respond to the allegations in the termination letter and without being given the substance or basis of the allegations. The applications judge found that there was no duty of procedural fairness in the case and, if such a duty existed, it was met. Ouellette appealed the chambers judge’s decision to the Court of Appeal.

The appeal was dismissed. Oullette, who was an officer of the rural community, had a right to procedural fairness on termination. According to the provisions of the Municipalities Act, all officers employed solely by the municipality are entitled to hold office until dismissal for cause by the affirmative vote of at least two thirds of the whole council. These provisions infused a duty of fairness into the contractual relationship between Oullette and Saint-André. In the circumstances, a duty of fairness arose by implication. The joint requirements of cause and a two thirds majority vote indicated that the Legislature had intended to impose stringent conditions on termination, and thus it was reasonable to infer that the public officer ought to be provided with an opportunity to respond to and provide her position to Council. However, the requirements of procedural fairness depend on the specific context of each case. Procedural fairness must not unduly hamper the effectiveness of Council’s responsibilities towards its citizens. It must not have the potential to become a procedural gridlock, which might function as a means unto itself, with ever expanding claims to “fairness”. The procedural fairness required in this case had to be minimal, yet reasonable and efficient. Those minimal features consisted of an opportunity to know the concerns about one’s performance that could lead to termination, and an opportunity to explain or demonstrate why they had no merit. An appropriate opportunity should be afforded to the officer to make necessary inquiries and prepare a response. In this case, Oullette was afforded adequate procedural fairness. Council owed her a duty of procedural fairness on termination and met its duty in that regard.

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