Casual Legal: Is a councillor an employee?
DISCLAIMER: This article is meant to provide information to Alberta Municipalities members only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.
By Mitchell R. Hayward
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
The question of whether a municipal councillor can be characterized as an employee for the purposes of a wrongful dismissal action has not arisen in Alberta; however, this issue was addressed recently in Ontario. In Ras v Corporation of the City of Mississauga and Ron Starr, 2023 ONSC 7102 (“Ras”), the Ontario Superior Court of Justice offered a thorough and insightful decision on this question.
In Ras, the plaintiff was a former Mississauga city councillor who was first elected on October 27, 2014, and then re-elected on October 22, 2018. The former councillor resigned on November 25, 2022, and alleged she was forced to do so, as a result of being harassed by a fellow councillor. The former councillor brought an action seeking damages for constructive dismissal. The court ultimately struck part of the plaintiff’s claim, and explained that as a councillor, the plaintiff was not an employee and, therefore, was not entitled to damages for wrongful dismissal.
The court clarified that city councillors hold a distinctive role as elected officials. They are not employees of the municipality nor are they subject to its control while in office. Instead, council members can only exercise their authority on behalf of the municipality by collaborating with other council members, provided that a quorum is present at a legally constituted meeting. The court went on to explain that the key indicators of employment are not present in a councillor-municipality relationship. The court observed that municipal councillors are elected by the public – not employed by the municipality. In the case of a vacancy, the city council is responsible for selecting a replacement through a vote. Similarly, decisions regarding the remuneration of municipal councillors, including any suspension of pay, are determined by the council in accordance with bylaws established under the Ontario Municipalities Act. The court also emphasized that the municipality's role is limited to administering the councillors' pay, without any authority over the terms of their service.
In Alberta, it is unlikely that a councillor would be considered an employee for the purposes of a wrongful dismissal action. First, as noted by the court in Ras, councillors are elected and not employed by the municipality. Second, section 174(j) of the Municipal Government Act, RSA 2000 c M-26 explains that a person is disqualified as a councillor if they become an employee of a municipality. Accordingly, the logical corollary of section 174(j) of the MGA, is that a person cannot be both an employee and a councillor.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
