The Manitoba Court of Appeal has sided with an RM of Thompson councillor in a case that dealt with her dismissal from the municipal council.
The municipality made the appeal in its effort to disqualify Donna Cox, despite a court ruling that had reinstated her and ordered Thompson to pay most of her legal costs.
In October 2023, a Court of King’s Bench judge ruled in favour of Cox, ordering the RM to pay $45,000 toward her legal fees and allowing her to remain on council. The judge found the RM had acted improperly in trying to remove Cox for missing three committee meetings.
The RM filed an appeal, arguing the judge misinterpreted Manitoba’s Municipal Act and should not have ordered the municipality to pay Cox’s legal expenses.
In the written court decision, it was noted “the application judge considered the following factors in exercising his discretion: the absence of any neglect or irresponsibility on Cox’s part, the disingenuous excuse offered by the reeve of the RM for changing meeting times, the legitimate employment reasons of Cox for missing the meetings, Cox’s genuine unawareness that missing LUD committee meetings could result in her disqualification, the LUD committee’s failure to entertain the possibility of excusing Cox from one or more meetings and the failure of the applicants to consider that Cox was the voters’ elected representative and that the actions of the applicants effectively obstructed Cox from acting as a councillor and disenfranchised voters.
“In my view, these were all appropriate considerations and the application judge made no errors in principle in exercising his discretion. To summarize, in my view, the application judge correctly interpreted the act and made no reversible error in exercising his discretion to dismiss the application.”
Cox declined to comment on the decision.
The municipality through Reeve Brian Callum declined to be interviewed but did issue a statement:
“We were disappointed and confused by the decision. We followed the municipal act and the legal advice we received. The decision says the municipal act is open to liberal discretion by the court. It doesn’t say that in the act,” it read. “Going forward, we are concerned about the strength of the municipal act for all municipalities.
“One thing the court couldn’t seem to figure out was the change in council meeting times. This wasn’t the problem and was not related to the case. She was attending most meetings and council was not concerned about this at all. This had no bearing on the missed meetings. The meetings she missed were LUD meetings, of which the time didn’t change from previous term. And to say in the decision leave was not granted for those meetings, well, it was never asked for.
“But we need to move past this. As a council, we are moving forward as we have many projects on the go. We have obtained funding for several and continue to work together for the municipality. This council is proactive and has generated outside revenue to help taxpayers over the years. This will continue. While the cost is more than we would have liked, we have planned for this situation over the last three years.”
The RM of Thompson and the Local Urban District of Miami previously applied under the Manitoba Municipal Act to disqualify Cox and declare her council seat vacant. The attempt followed her absence from three consecutive committee meetings, all held at 9:30 a.m. while she was working at her full-time job.
Cox, who was first elected as a Ward 2 councillor in October 2022, said her employer would not grant unpaid leave for the morning meetings. Shortly after her election, the RM council passed a bylaw changing regular council meeting times from alternating 9:30 a.m. and 5 p.m. to only 9:30 a.m. meetings.
Cox was the only councillor to vote against the change and informed council she would only be able to attend one meeting per month if the new schedule was adopted. Callum testified in court that the new schedule simply worked better for most councillors.
In the original court decision, it was noted that “in dismissing the application, the application judge stated that “[a] municipality cannot, in a situation such as this, in effect, obstruct a councillor and disenfranchise voters, by taking actions it knows, or should reasonably know, will preclude the elected representative from fulfilling their function.” The judge concluded that the applicants had “failed miserably” to foster “communication, collaboration and compromise.”
The appeal court decision found that “[m]issing meetings [was] not the same class of offence as conflict of interest. I agree with this distinction,” the judge said. “The municipal council conflict of interest act provides that ‘where a judge finds that a councillor violated a provision of this act unknowingly or through inadvertence, the councillor is not disqualified from office, and the judge shall not declare the seat of the councillor vacant, in consequence of the violation.’
“A council member must be given adequate notice of a meeting in order to be considered absent from it. Otherwise, the meeting will not be ‘properly constituted,’” the decision continued.
“In this regard, procedural rules will be applied strictly and a failure on the part of the council to closely observe them will negate the consequence of a councillor’s absences. Before council can successfully obtain a declaration of disqualification, there is an expectation that the council will afford a level of procedural fairness to the councillor,” the judgement stated “This may include making reasonable accommodation to a councillor in scheduling meetings.”
