Administrative law – Municipalities – By-laws – Judicial review – Ultra vires legislation – Standard of review – Correctness – Reasonableness simpliciter
Sul v. St. Andrews (Rural Municipality),  M.J. No. 66, 2023 MBCA 25, Manitoba Court of Appeal, March 10, 2023, D.M. Cameron, C.J. Mainella and J.L. Lemaistre JJ.A.
The applicant, mayor, sought judicial review of a by-law and resolution passed by the council members for the respondent, Rural Municipality of St. Andrews (“Municipality”). Specifically, a majority of the council members for the Municipality purported to remove the duty of the mayor, the elected head of the council, to preside over council meetings. The council members attempted to do this in December 2019 through enacting a by-law and resolution appointing another council member as chair of its meetings.
The applicant applied to the court seeking a declaration that the by-law and resolution were invalid. The application judge held that the applicable standard of review was correctness. The application judge dismissed her application for judicial review. The application judge relied heavily on the decision in Gendre v Fort Macleod (Town) 2015 ABQB 623 wherein the court upheld a municipal council’s decision to remove the mayor’s authority to chair council meetings.
The applicant appealed the application judge’s decision to the Manitoba Court of Appeal. The applicant argued that:
– The application judge erred in his application of the reasonableness standard of review;
– The application judge failed to consider whether the removal of the applicant as chair of council meetings could be effected by resolution, as opposed to a by-law; and
– The applicant sought enhanced costs, regardless of the outcome, on the basis that she is akin to a public interest litigant.
The Court of Appeal summarized its role as deciding whether the application judge chose the correct standard of review and properly applied it.
Between the time of the application, and the time of the appeal, the applicant’s position changed and so did the jurisprudence regarding the vires of legislative action. The applicant argued, on appeal, that the applicable standard of review was correctness when considering whether the council had the lawful authority to enact the by-law and the resolution. In the alternative, the applicant argued that a “more robust contextual analysis” should be applied to the reasonableness standard of review set out in Vavilov.
The Court of Appeal was not prepared to find that the application judge erred in choosing to apply the reasonableness standard, especially since the result was the same regardless of the standard of review.
The Court of Appeal held that the mayor was capable and willing to act as mayor in her role as head of council. The by-law was enacted to address political disagreement about a wastewater project and because some councilors felt the council meetings were dysfunctional. The by-law was not passed to provide for a procedure to appoint a council member to act as head of council where the head of council was unable to act or the office was vacant.
The Court of Appeal held that the council did not have authority to pass the by-law to permit a member to be chosen to chair its meetings by resolution. Therefore, the council could not choose a chair by resolution.
The Court of Appeal allowed the appeal with costs throughout; set aside the decision of the application judge; and declared the by-law and resolution invalid.
The Court of Appeal refused to grant enhanced costs to the applicant.
This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Scott Marcinkow at firstname.lastname@example.org.
To stay current with the new case law and emerging legal issues in this area, subscribe here.