Humby et al. v. Howitt et al., (2006) 204 Man.R.(2d) 293 (QB)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 11, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 204 Man.R.(2d) 293 (QB);2006 MBQB 166

Humby v. Howitt (2006), 204 Man.R.(2d) 293 (QB)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. AU.022

Peggy Humby, Karen Kemp, Gordon Dafoe, Shelly Overwater, Warrick Humby, Bill Duberry, Shirley Kennedy, Wayne Levac, Abbie Humby, Andy Hopkins, Ron Brown and Janet Krahenbil, as electors of the City of Thompson (applicants) v. Norma Howitt and City of Thompson (respondents)

(CI 05-15-00123; 2006 MBQB 166)

Indexed As: Humby et al. v. Howitt et al.

Manitoba Court of Queen's Bench

Thompson Centre

Schulman, J.

July 11, 2006.

Summary:

The applicants moved for a determination of whether Howitt, a member of city council, was a resident of the city and, if not, whether her position should be vacated.

The Manitoba Court of Queen's Bench held that Howitt was a city resident and ordered the applicants to pay costs to Howitt and the city.

Municipal Law - Topic 668

Council members - Eligibility - Residence requirement - The applicants moved for a determination of whether Howitt, a member of city council, was a resident of the city and, if not, whether her position should be vacated - Howitt and her husband sold their family home in Thompson and purchased a retirement home at Liz Lake (30 kms outside the city) - Five nights a week she slept and ate her meals at her brother's home in the city and worked in the city - She spent her weekends with her husband at Liz Lake - She paid her brother room and board - She had a post office box in Liz Lake - Her driver's licence and a membership card showed her brother's address - She and her husband had signed a declaration for the purposes of a provincial park levy that the Liz Lake home was their chief place of residence - Section 94(1) of the Municipal Act provided council members were disqualified from holding their position on ceasing to be a qualified elector - The residency requirements for an elector were set out in ss. 5(1) and 13 of the Local Authorities Election Act - The Manitoba Court of Queen's Bench held that Howitt, before buying the Lake Liz home, formed the intention to remain a city resident by arranging to stay five nights a week in a room and board situation in the city - She had sufficient geographical nexus with the city to ensure her true interest in the city's affairs - She had not shown a present intention to reside outside of the city - See paragraphs 1 to 13.

Municipal Law - Topic 749

Council members - Disqualification or removal - Grounds - Nonresidence - [See Municipal Law - Topic 668 ].

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to - Where claim or defence irrelevant, scandalous or without merit - The applicants moved for a determination of whether Howitt, a member of city council, was a resident of the city and, if not, whether her position should be vacated - The applicants added the city as a respondent on the basis that it should be ordered to pay solicitor/client costs because it failed to bring the application itself and because it acted inappropriately in several ways - The Manitoba Court of Queen's Bench dismissed the application - There was no basis for the city to have brought the application - The applicants' allegations against the city were unfounded - The city should not have been made a party - The court ordered the applicants to indemnify the city for all legal costs reasonably incurred - See paragraph 15.

Cases Noticed:

Lee River Estates Ltd. et al. v. Lac Du Bonnet (Rural Municipality) et al. (1992), 80 Man.R.(2d) 102 (Q.B.), dist. [para. 13].

Blackfalds (Town) v. Stryker (2000), 263 A.R. 143 (Q.B.), refd to. [para. 13].

Statutes Noticed:

Local Authorities Election Act, R.S.M. 1987, c. L-180; C.C.S.M., c. L-180, sect. 5(1), sect. 13 [para. 7].

Counsel:

Robert A. Mayer, Q.C., for the applicants;

Gavin Wood, for the respondent, Howitt;

Ted E. Bock, for the respondent, the City of Thompson.

This application was heard before Schulman, J., of the Manitoba Court of Queen's Bench, Thompson Centre, who delivered the following judgment on July 11, 2006.