In the recent decision Wushke v Rural Municipality of Rocanville No. 151, 2025 SKKB 19, the Saskatchewan Court of King’s Bench determined that a resolution disqualifying a councillor was void ab initio due to breaches of procedural fairness.
The Municipalities Act and Disqualification
Under The Municipalities Act, SS 2005, c M-36.1 (the “Act“), a member of council is automatically disqualified if they violate certain rules, including failing to disclose conflicts of interest, not properly disclosing personal financial interests or failing to comply with other ethical requirements outlined in the Act.
Pursuant to s. 147, a member of council who is disqualified cannot be nominated or elected in an election in any municipality for 12 years.
Section 148 of the Act provides that a member of council who is disqualified must resign immediately. If the disqualified council member does not resign, the council may declare that person’s office vacant by resolution pursuant to s. 148(2)(a) of the Act. If the council declares a member’s seat vacant by resolution, the decision can be appealed to the Court of King’s Bench.
Case summary
The applicant, Timothy Wushke, was a councillor of the Rural Municipality of Rocanville No. 151 (the “RM“) for approximately nine years. Council passed resolutions disqualifying him from Council and declaring his seat vacant as a result of alleged breaches of the Act.
The applicant sought to quash the resolutions on the basis that that he was not disqualified because he did not breach the Act as alleged, and if there were any breaches of the Act, they arose as a result of honest mistake or inadvertence.
In addition, the applicant argued the RM Council did not afford him adequate procedural fairness when passing the resolutions. Wushke claimed that he had no notice that Council would be considering his disqualification, and that he was not given any opportunity to be heard before the resolutions were passed.
In the decision, Justice Sinclair did not determine whether the applicant was disqualified under the Act, but instead concluded the resolutions were void ab initio because there was a breach of procedural fairness. Justice Sinclair concluded that Council failed to provide the appellant adequate notice of the allegations against him and did not afford him an opportunity to be heard before the resolutions were passed.
Key takeaways for municipalities
This is the first case in Saskatchewan to address the procedural fairness requirements when disqualifying a member of council pursuant to s. 148(2)(a) of the Act. While that section does not prescribe any procedural fairness requirements, it is now clear that a council must provide procedural fairness before passing a resolution to declare a council member’s seat vacant.
These procedural fairness requirements include:
- Notice: Providing advance notice to the member of council regarding the allegations against them
- Opportunity to be heard: Giving the member of council the opportunity to make submissions regarding the allegations before council makes a decision
In light of this important decision, municipal councils should seek legal advice before passing a resolution to declare a council member’s seat vacant in order to ensure that the disqualification process is followed correctly and adequate procedural fairness is afforded.
For more information on what this decision could mean for you or your municipality, contact our Municipal team.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
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