Calkin v. Dauphinee, (2014) 354 N.S.R.(2d) 225 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 18, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 354 N.S.R.(2d) 225 (SC);2014 NSSC 452

Calkin v. Dauphinee (2014), 354 N.S.R.(2d) 225 (SC);

    1120 A.P.R. 225

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.062

Tom Calkin (applicant) v. Richard Dauphinee (respondent)

(Ken. No. 429924; 2014 NSSC 452)

Indexed As: Calkin v. Dauphinee

Nova Scotia Supreme Court

Warner, J.

December 31, 2014.

Summary:

The applicant, an elector in the Municipality of the District of West Hants, applied for a determination of whether the respondent, Warden of the Municipality of the District of West Hants and a member of the municipal council, had contravened the Municipal Conflicts of Interests Act, and, if so, for a declaration that his seat as a member of the municipal council be declared vacant.

The Nova Scotia Supreme Court dismissed the application.

Municipal Law - Topic 748

Council members - Disqualification or removal - Grounds - Pecuniary interests -The applicant, an elector in the Municipality of the District of West Hants, applied for a determination of whether the respondent, Warden of the Municipality of the District of West Hants and a member of the municipal council, had contravened the Municipal Conflicts of Interests Act (ss. 5(1) and 10(1)), and, if so, for a declaration that his seat as a member of the municipal council be declared vacant - The application arose out of the purchase by the municipality of land near land owned by the respondent - The applicant asserted that the respondent had a "pecuniary interest" in the matter that "influenced his conduct" - The Nova Scotia Supreme Court dismissed the application - The court stated that "a pecuniary interest not held in common with electors, that is not so remote or insignificant as to require disclosure and abstinence from participation, arises when a reasonably well-informed person would conclude that it is likely to , as opposed to might or could possibly , influence the member's exercise of his or her duty" - This was not the issue here - The conduct of the respondent, and the municipal council, in respect of the purchase of the impugned lot was inappropriate by reason of the haste, secrecy, lack of due diligence and apparent excessive price paid - There was good reason for the applicant to be suspicious of the respondent's actions and possible motive, but it had not been established that a reasonably well-informed person would conclude that the ownership interest of the respondent in his property likely influenced his conduct in the municipality's purchase of the impugned lot.

Municipal Law - Topic 908

Council members - Conflicts of interest - Pecuniary interest - [See Municipal Law - Topic 748 ].

Cases Noticed:

Stubbs v. Greenough (1984), 61 N.S.R.(2d) 300; 133 A.P.R. 300 (T.D.), refd to. [para. 38].

Magder v. Ford, [2012] O.T.C. Uned. 5615; 2012 ONSC 5615, revd. (2013), 302 O.A.C. 333; 2013 ONSC 263, refd to. [para. 40].

Schlenker et al. v. Torgrimson et al. (2013), 331 B.C.A.C. 275; 565 W.A.C. 275; 2013 BCCA 9, refd to. [para. 40].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 41].

Synchyshyn v. Tiller (2000), 148 Man.R.(2d) 94; 224 W.A.C. 94; 2000 MBCA 40, refd to. [para. 41].

Greene v. Borins (1985), 8 O.A.C. 141; 1985 CarswellOnt 666 (Div. Ct.), refd to. [para. 41].

Jafine v. Mortson (1999), 93 O.T.C. 91; 1999 CarswellOnt 285 (Gen. Div.), refd to. [para. 41].

Mondoux v. Tuchenhagen (2011), 284 O.A.C. 324; 2011 ONSC 5398 (Div. Ct.), refd to. [para. 41].

Bowers v. Delegarde, [2005] O.T.C. 138; 2005 CarswellOnt 4374 (S.C.), refd to. [para. 41].

Fewer v. Harbour Main-Chapel's Cove-Lakeview (Town) (2007), 266 Nfld. & P.E.I.R. 43; 808 A.P.R. 43; 2007 NLTD 91, dist. [para. 41].

Lorello v. Meffe, 2010 ONSC 1976, refd to. [para. 41].

Fleet v. Davies et al. (2011), 373 Sask.R. 171; 2011 SKQB 159, refd to. [para. 41].

Duncan v. Thurlow (2012), 396 Sask.R. 304; 2012 SKQB 179, refd to. [para. 41].

Gammie v. Turner, [2013] O.T.C. Uned. 4563; 2013 ONSC 4563, refd to. [para. 41].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 46].

Keizer v. Slauenwhite (2012), 313 N.S.R.(2d) 344; 990 A.P.R. 344; 2012 NSCA 20, refd to. [para. 46].

Raymond v. Royal & Sun Alliance Insurance Co. of Canada (2014), 340 N.S.R.(2d) 290; 1077 A.P.R. 290; 2014 NSCA 13, refd to. [para. 47].

Moll and Fisher, Re., [1979] O.J. No. 4113 (Div. Ct.), refd to. [para. 60].

Orangeville (Town) v. Dufferin (County) (2010), 266 O.A.C. 207; 2010 ONCA 83, refd to. [para. 61].

Statutes Noticed:

Municipal Conflict of Interest Act, S.N.S. 1993, c. 47, sect. 5(1)(j), sect. 5(1)(k) [para. 3 et seq.].

Counsel:

James J. White and Gerald Francis, for the applicant;

Derrick J. Kimball, Sharon Cochrane and David Faour, for the respondent.

This application was heard at Kentville, N.S., on November 18, 2014, by Warner, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 31, 2014.