Baker et al. v. Sherwood (Rural Municipality No. 159), 2015 SKQB 301

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 23, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 301;(2015), 483 Sask.R. 48 (QB)

Baker v. Sherwood (2015), 483 Sask.R. 48 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. OC.058

Richard Albert Baker, Dean Beatty, Brian Gary Brown, John David Duncan, Robert Andrew Dunlop, James Paul Farley, Allan Wayne Ganshorn, Gary Ross Howland, Roy William Klym, Herbert Stanley Martin, John Richard McAllister, Joan Ann Pratchler, James Douglas Tanner (applicants) v. Rural Municipality of Sherwood No. 159 (respondent)

(2015 Q.B.G. No. 903; 2015 SKQB 301)

Indexed As: Baker et al. v. Sherwood (Rural Municipality No. 159)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

September 23, 2015.

Summary:

The applicants challenged the validity of a bylaw ("the Bylaw") passed by the Council of the respondent Rural Municipality. The Bylaw was to provide for the indemnity and defence of members of council against liability incurred while acting on behalf of the municipality. It referenced s. 355 of the Municipalities Act. The applicants sought an order quashing the Bylaw under s. 358 of the Act as ultra vires and an illegal delegation of authority to the Chief Administrative Officer (CAO).

The Saskatchewan Court of Queen's Bench allowed the application. The Bylaw was not authorized under s. 355 or any other section of the Act. Further, it was an illegal delegation of authority to the CAO.

Administrative Law - Topic 7504

Delegated powers - General - Powers which may be delegated - [See first Municipal Law - Topic 1636 ].

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate (delegatus non potest delegare) - [See both Municipal Law - Topic 1636 ].

Municipal Law - Topic 853

Council members - Remuneration - Authority for - [See first Municipal Law - Topic 3842 ].

Municipal Law - Topic 1636

Powers of municipalities - Delegation of powers - Prohibition against delegation of legislative powers - The Saskatchewan Court of Queen's Bench stated that the issue of delegation within municipal law was governed by the maxim delegatus non potest delegare (i.e., "a delegate cannot delegate") - To determine the validity of a delegation of power by a municipal council, the courts would look for an express grant of authority to delegate - Without this authority, there was a presumption against delegation - This maxim was not absolute; courts had determined that administrative authority might be delegated - The exercise of a discretionary power vested in a council could not, in the absence of statutory authority, be delegated - A council might, however, delegate to an officer or functionary merely ministerial matters - The court held that "Where the authority being granted by a municipality involves tasks or decisions which do not adjudicate or determine rights, and where the task or decision does not involve the exercise of a great deal of discretion, policy or legislative action on the part of the body receiving the authority, then the delegation has generally been held to be valid." - See paragraphs 87 to 90.

Municipal Law - Topic 1636

Powers of municipalities - Delegation of powers - Prohibition against delegation of legislative powers - A bylaw ("the Bylaw") passed by the Council of the respondent Rural Municipality (RM) provided for the indemnity and defence of members of council against liability incurred while acting on the municipality's behalf - The applicants sought an order quashing the Bylaw as, inter alia, an illegal delegation of authority to the Chief Administrative Officer (CAO) - The Saskatchewan Court of Queen's Bench allowed the application - The court found that, under the Municipalities Act, Council bore the direct responsibility and authority for financial decisions and expenditures - The CAO had to carry out Council's directions, but the Bylaw left significant discretion in his hands, contrary to the scheme of the Act - "The CAO, an employee who reports to council, must decide whether the legal fees, costs or damages arose from an action or proceeding; whether the action or proceeding arose from acts or omissions of councillors in the course of their duties; whether the acts or omissions of councillors were done or made in good faith with a view to the best interests of the RM; whether the legal fees, costs and/or damages are/were not already covered by the RM's insurance; and lastly whether the legal fees, costs and/or damages are/were reasonable." - Accordingly, the Bylaw illegally delegated authority to the CAO - See paragraphs 80 to 96.

Municipal Law - Topic 3389

Bylaws - Enactment - Authority - General - Section 8(1)(a) of the Municipalities Act provided that: "A municipality has a general power to pass any bylaws for the purposes of the municipality that it considers expedient in relation to the following matters respecting the municipality: (a) the peace, order and good government of the municipality;" - The Saskatchewan Court of Queen's Bench discussed (1) what the "good government" provision provided for and (2) to what extent was a purposive approach to the interpretation of bylaws engaged if the Act had specifically addressed a given issue? - The court stated that "A review of the case law on this matter has led me to conclude that while powers under the 'peace, order and good government' provision in s. 8 of the Act are broad, there are clear limitations to this section's use. It is not illegal for a municipality to enact a bylaw on subject matter for which provincial legislation exists, provided that there is no conflict between the two pieces of legislation. However, where the enabling statute gives a municipal corporation specific powers in relation to a certain subject matter, the general power cannot be relied upon unless the right to legislate on the matter arises from the powers given. Moreover, the general powers cannot be relied upon if its true purpose is not provided for in s. 8 (i.e. for the peace, order and good government of the municipality)." - See paragraphs 63 to 79.

Municipal Law - Topic 3389

Bylaws - Enactment - Authority - General - [See both Municipal Law - Topic 3842 ].

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - The applicants challenged the validity of a bylaw ("the Bylaw") passed by the Council of the respondent Rural Municipality - The Bylaw was to provide for the indemnity and defence of members of council against liability incurred while acting on behalf of the municipality - It referenced s. 355 of the Municipalities Act - The applicants sought an order quashing the Bylaw under s. 358 of the Act as, inter alia, ultra vires - The Saskatchewan Court of Queen's Bench allowed the application - The court stated that "Even taking a purposive approach to the interpretation of the relevant provisions of the Act and the terms of the Bylaw, I cannot conclude that the Bylaw was intra vires. Council has exceeded its authority in purporting to provide for indemnification of councillors in circumstances where they are not the subject of a claim for liability." - Nor was it authorized by s. 82 (general compensation and remuneration), s. 151 (reimbursement) or s. 8(1)(a) (general power to pass bylaws for the municipality's peace, order and good government) - Regrading the last section, the court was satisfied that the Bylaw was not passed to promote the peace, order and good government of the municipality, but to protect the interests of the members of council on a personal basis - See paragraphs 31 to 79.

Municipal Law - Topic 3842

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - The applicants challenged the validity of a bylaw ("the Bylaw") passed by the Council of the respondent Rural Municipality - The Bylaw was to provide for the indemnity and defence of members of council against liability incurred while acting on behalf of the municipality - It referenced s. 355 of the Municipalities Act - The applicants sought an order quashing the Bylaw under s. 358 of the Act as, inter alia, ultra vires - The Saskatchewan Court of Queen's Bench allowed the application - The Bylaw was not authorized under s. 355 or any other section of the Act - The court stated that "Even though the Bylaw references s. 355 of the Act, it is clear that the recital of authority pursuant to which a bylaw is enacted is not a necessary component to a bylaw; the authority of the council is presumed until the contrary is proven ... . When a bylaw does not list any authority, a judge must regard the bylaw as having been passed from the power that would allow for its passage ... . If the bylaw cites the wrong authority in its recitals, the bylaw is not invalidated if authority exists elsewhere ... ." - See paragraph 49.

Municipal Law - Topic 3843

Bylaws - Quashing bylaws - Grounds for judicial interference - Illegality - The Saskatchewan Court of Queen's Bench held that the context will inevitably be a relevant consideration when evaluating the legality of a bylaw - See paragraphs 12 to 16.

Municipal Law - Topic 3844

Bylaws - Quashing bylaws - Grounds for judicial interference - Invalid purpose - [See first Municipal Law - Topic 3842 ].

Municipal Law - Topic 3884

Bylaws - Quashing bylaws - Judicial review - Practice - Standard of review - The applicants challenged the validity of a bylaw ("the Bylaw") passed by the Council of the respondent Rural Municipality - The Bylaw was to provide for the indemnity and defence of members of council against liability incurred while acting on behalf of the municipality - The applicants sought an order quashing the Bylaw under s. 358 of the Municipalities Act as ultra vires and an illegal delegation of authority to the Chief Administrative Officer - The Saskatchewan Court of Queen's Bench noted that the approach taken by the courts in interpreting municipal legislation had changed over time - The court reviewed relevant case law and held that the standard for review was correctness - See paragraphs 20 to 30.

Counsel:

J. Paul Malone, for the applicants;

Karen M.T. Prisciak, Q.C., for the respondents.

This application was heard by Gunn, J., of the Saskatchewan Court of Queen's Bench,

Judicial Centre of Regina, who delivered the following decision on September 23, 2015.