ST. JOHN'S, N.L. — An unvaccinated town councillor in rural Newfoundland has his job back after a provincial Supreme Court judge ruled he was unjustly removed for not attending council meetings.
In a written decision released Monday, Justice Glen Noel said the Musgrave Harbour, N.L., town council made rules that effectively barred Grant Abbott, or any other unvaccinated person, from attending meetings. The council then incorrectly applied provincial legislation to justify Abbott's removal, Noel said.
"The consequence of vacating a councillor’s seat is a serious deprivation of a resident’s right to participate in local government and democracy," Noel wrote, ordering Abbott reinstated.
Musgrave Harbour has a population of about 850 people and sits along the coast of Bonavista Bay, about 230 kilometres northwest of St. John's.
According to Noel's decision, Abbott was elected in September of 2021, before the municipality instituted policies on COVID-19 vaccinations or remote attendance for council meetings. About four months later, the town adopted a policy requiring all councillors to prove they had two shots of a COVID-19 vaccine, or a medical exemption, Noel said.
Abbott remained unvaccinated and began asking the town clerk and council how he might participate in meetings remotely, the judge said.
The town then passed a new rule allowing remote participation only for those working out of town, or those with medical or child-care challenges. The policy explicitly stated that vaccination status was not included, Noel said.
The judge said the town had previously allowed councillors to participate in meetings by phone "for any reason." Meetings were also held via video conference during COVID-19 lockdowns, Noel added.
He said Abbott had requested leave to be absent from council meetings and to return when vaccine mandates were lifted. For a few months in 2022, he was permitted to listen in on some meetings via telephone or video, but he was not able to speak, nor was his attendance noted in meeting minutes, Noel wrote.
On April 29, 2022, the mayor told Abbott his seat had been vacated since he had been absent from meetings for three consecutive months. The province's Municipalities Act says a town can declare a seat vacant if a councillor fails to attend meetings for three months.
But the judge ruled that the law says council can only declare a seat as vacated after it responds to a request for leave. Since the town did not respond to Abbott's request, it was not justified in declaring Abbott's seat vacant, Noel said.
Noel said the council caused serious detriment to Abbott's democratic rights by not responding to his application for leave. He cited a previous case in which a judge "aptly described the vacating of a councillor’s seat as 'close to capital punishment in the world of municipal politics.'"
This report by The Canadian Press was first published Feb. 21, 2023.
Sarah Smellie, The Canadian Press
