ST. JOHN’S, NL — The two-day hearing for Frank Butt’s legal challenge of Carbonear council’s decision to vacate his seat got underway Thursday.
Butt, who was elected mayor of the Conception Bay North community last fall, was removed by fellow council members in December over an alleged conflict of interest. That matter dates back to a 2014 motion he introduced and voted on to tear down a derelict building located near a business he owned.
An anonymous letter sent to council and Municipal Affairs shortly before the 2017 general election alleged monetary gain was at stake for Butt to have the building, located at 234 Water Street, torn down. The 2014 motion failed, though the building was eventually torn down after changing ownership. It now serves as a parking lot for the Stone Jug restaurant.
That issue was addressed Thursday during testimony from Neil Hardy, a real estate appraiser with 41 years of experience. Butt’s lawyer John Babb submitted an affidavit from Hardy as evidence in his client’s application to the Supreme Court of Newfoundland and Labrador. Ian Wallace, representing the Town of Carbonear, elected to cross-examine Hardy Thursday at the St. John’s courthouse.
Last Saturday, Hardy visited the property and subsequently completed a report investigating whether there was potential monetary gain in 2014 for Butt’s property, a gas station and convenience store, if the building was torn down. He ultimately came to the conclusion that the demolition would not impact the value of Butt’s property.
Hardy said he was making no predictions on the outcome of his work prior to visiting the site last Saturday. Knowing the task at hand could be used as evidence in a court matter, Hardy said he did a thorough job in assessing the situation.
Wallace spent a lot of time questioning Hardy on sightlines relevant to the large Esso sign at Butt’s business, located at 240 Water Street. Hardy indicated a driver would only get fleeting glimpses of the sign passing by in either direction and noted there are buildings that obscure its view either way approaching the area. Passing by the Stone Jug and driving towards Beach Road, Hardy said a driver would need to look away from the road and turn their head at an 80-90 degree angle in order to get a good look at it.
Wallace went on to ask him about pedestrians and particularly those who might step out of the Stone Jug restaurant, see the Esso sign, and then decide to fill up their vehicle before leaving. Hardy admitted there was potential for this scenario to occur.
While Hardy went on to agree the sign serves a purpose to attract customers, he suggested the angle at which it’s placed — directly facing the parking lot of the neighbouring plaza — makes it less ideal for attracting customers passing by on Water Street. The business itself, while holding a civic address for Water Street, is located well back from the actual road.
After Hardy concluded his testimony, Babb began to offer his submissions to the presiding judge, Justice Robert Stack. He spent a large portion of Thursday afternoon questioning the procedural fairness leading up to council’s vote on Dec. 12 to vacate Butt’s seat.
In particular, Babb referenced a perceived misunderstanding about the purpose of a privileged meeting held Dec. 6, of which a transcript was entered as evidence through an affidavit from the town clerk.
Babb noted it was his expectation, as well as Butt’s, that the Dec. 6 meeting would allow them to figure out whether the councillors were prepared to set aside the conflict of interest allegation and move on from it. If council was not prepared to do so, he expected they would set a date for a hearing to examine evidence and give his client an opportunity to fully defend himself.
Butt’s fellow councillors ultimately determined they were not willing to summarily dismiss the allegation. Babb then thought they would set a hearing date. According to a portion of the transcript Babb read in court Thursday, the town’s chief administration officer advised he had all the necessary information provided to him already to deal with the matter. However, Babb felt there were still disclosure issues to address.
By the end of the meeting, there was no mention of a date for a hearing, other than the date for the next regular council meeting of Dec. 12, at which time Butt was ultimately removed from council. Babb felt the former mayor’s situation was still very much up in the air by the end of the Dec. 6 meeting. He contended his client was dismissed without receiving a chance to adequately defend himself.
Babb also questioned the inclusion of two exhibits in the town clerk’s affidavit of items in the town’s possession relevant to the appeal. Prior to receiving the affidavit, Babb said he had never seen those exhibits and questioned whether they may have contributed to informing council’s decision. However, Justice Stack said it would be hard for him as a judge to make a determination on that issue without a cross-examination of the town clerk. Babb had not requested to do that.
Babb’s submissions will resume Friday morning, with Wallace’s to follow later that day.