27 Jan The mess in Richmond comes before the Court of Appeal
When three senior justices of the Nova Scotia Court of Appeal meet Thursday to hear arguments in the Richmond County boundary case, you might expect them to ponder the right size for Richmond’s council and the right boundaries for its polling districts.
But they probably won’t.
To judge from briefs filed by both sides in the dispute, the hearing will centre not on the substance of the case—the appropriate size and style of government for a small, rural municipality—but on whether the court has any business second guessing the Utility and Review Board, which the legislature empowered to carry out boundary reviews.
The whole point of setting up administrative tribunals like the UARB is to keep routine technical matters from cluttering up superior court dockets.
Guided by the Supreme Court of Canada, courts are reluctant to substitute their judgment for that of specialized administrative tribunals. They only intervene in rare cases when administrative panels violate the Constitution or make rulings outside the limited areas where legislatures have empowered them to act.
In Nova Scotia, the legislature enacted the Municipal Government Act, which requires the UARB to confirm or adjust the council size and district boundaries of every municipality in the province, every eight years. In Richmond, the UARB assigned three of its most experienced commissioners to the job, men who have heard and decided dozens of boundary reviews.
As to the Court of Appeal? It has never heard a single boundary review case, and the court will be mindful of this deficit in its experience and expertise.
That’s the crazy thing about Warden Victor David’s decision to appeal the UARB ruling. In the history of Nova Scotia, no municipality had ever appealed a boundary review decision. The county’s Port Hawkesbury lawyer prudently declined to take the case, so David was forced to tap one of the high rise Halifax firms to carry the county’s appeal.
In the process, he may end up spending more than $50,000 in taxpayers’ money. The anonymous trolls who’ve been hounding County CAO Warren Olsen for spending $17.88 on a larger airplane seat may want to reconsider their priorities.
But let’s say the Court of Appeal does find some constitutional or jurisdictional flaw in the UARB ruling, and therefore turns its mind to the merits of its decision to cut Richmond Council from 10 seats to five.
It will find one of the smallest municipalities in the province with one of the largest councils. Richmond has one councillor for every 929 residents. Its 10 council districts average 124 square kilometres each—barely half the provincial average. The number of voters varies so much from district to district that some residents have 1-1/2 times the voting power of their fellow citizens.
Courts frown on such discrepancies. The Supreme Court of Canada has set sharp limits on the extent to which the number of voters can vary from district to district. A consultant hired by the county recommended reducing council to seven members with a warden selected from among its members, or five with a mayor elected at large.
Former Warden Steve Samson and three councillors supported that recommendation. Six councillors were content to stand pat on both council size and district variances, so they cast out Samson and elected David as warden.
Owing to a wrinkle in the Municipal Government Act, the Appeal Court decision will not quite end the matter. If the court upholds the five-person council approved by the UARB, Council will still have to decide whether to stick with a warden chosen from among its members, or switch to a mayor elected at large. And it has only until February 15 to make that decision.
More on that in a future post…
[Disclosure: As I noted in my first post on the mess in Richmond, in past years, I have carried out small communications contracts for Richmond County, both during Warden Sampson’s term, and also during a brief period in 2012 when Councillor David served as acting warden.]