P.E.I. Supreme Court dismisses councillor’s application for extension of judicial review on sign sanctions

The sign posted by Councillor John Robertson, which is posted saying "Truth: Mass Graves Hoax, Reconciliation: Redeem Sir John A's Integrity." (Courtesy: Gregory Miller)

The Prince Edward Island Supreme Court has dismissed a Murray Harbour councillor’s application for more time to file a judicial review into sanctions brought against him for a controversial sign.

According to the court’s written decision, dated Aug. 6, an application of judicial review must be submitted within 30 days of a contested decision. It says the extension sought by John Robertson was an additional 60 days.

“When measured against the general rule that an application for judicial review must be commenced within thirty days, the extension of time being sought by Robertson – an additional sixty days – is still considerable,” the decision reads. “This is not a mere matter of a missed deadline. There was a significant period of time between the expiry of the general time period for judicial review and the filing of this application for judicial review.”

The decision says Robertson, a councillor with the Rural Municipality of Murray Harbour, posted a sign in front of his home on Sept. 29, 2023, that read: “Truth: Mass Grave Hoax. Reconciliation: Redeem Sir John A’s integrity.”

The next day, the sign read: “A ‘Hoax’ Boys & Girls (Google it) is a lie told by people you were taught to trust.”

“The messages posted by Robertson followed media reports that a preliminary survey of the grounds of the former Kamloops Indian Residential School had uncovered 215 potential burial sites,” the decision reads.

According to the decision, at a special meeting on Nov. 18, 2023, Murray Harbour council imposed sanctions on Robertson following an investigation into the sign under Bylaw 112 regarding code of conduct for council members. The sanctions included a six-month suspension, a $500 fine, a written apology and removal as chairperson of a committee.

Robertson was unable to attend the special meeting and learned about the sanctions on Nov. 20. He exchanged a few messages with a local lawyer before travelling to New York and then England on Dec. 6, according to the decision.

Following council’s decision, the provincial Housing, Land and Community minister sent a letter to Robertson on Dec. 20 that purportedly ordered him to comply with the sanctions within 48 hours or resign by the end of the year. The deadline was later extended to Jan. 9, 2024, but it was never enforced. The minister revoked it on Jan. 19, 2024.

The decision says a lawyer filed an application for a judicial review on Robertson’s behalf on Feb. 16, 2024. Ten days later, Robertson filed a motion for an extension to file the application.

The motion for the extension was heard in court on Feb. 6, 2025.

The decision, citing the Judicial Review Act, says a judge can approve an extension for an application ‘where the judge is satisfied that there are grounds for relief and that no substantial prejudice or hardship will result to any person by reason of the delay.’

The decision says Robertson was “baffled” by the sanctions and he felt council’s conduct offended the Canadian Charter of Rights and Freedoms. During his trip to New York and England, Robertson was not in communication with a lawyer as the time limit to file an application expired.

He also confirmed he did not notify council or the mayor in writing that he intended to seek a judicial review.

“The court is not satisfied that Robertson had a bona fide intention to apply for judicial review before the 30-day time limit expired,” the decision reads. “There is no doubt for the court that Robertson disagreed with the decision made by Council and shared the view that his expression was not an issue for sanction by Council. However, missing from the record was any expressed intention on the part of Robertson to challenge the decision in court or by way of judicial review.”

“While there was an exchange of messages with a local lawyer before the general time limit expired, the record did not demonstrate any intention on the part of Robertson to take the additional step of applying for judicial review or seeking intervention by the court.”

The decision says Robertson cited several reasons for the delay in his application, including his travel outside of P.E.I. in December, managing injuries suffered from a fall while boarding a ship in New York city, attempts to consult with a local lawyer, a winter storm in February 2024 and “astonishment at the conduct taken by the Minister.”

The court says it was not satisfied with these explanations, saying they were “ordinary incidents of everyday life.” It noted the trip to England was an annual one and that Robertson was not hospitalized following his injury.

“In the thirty days after the decision by Council, Robertson presented no evidence of any instructions given, or any actions taken, by him to actually challenge the decision in any way,” the decision reads. “This lack of diligence on the part of Robertson in the immediate wake of the decision by Council was unreasonable in the circumstances.”

According to the decision, Robertson asserted council failed to properly balance regulatory objectives with freedom of expression when sanctioning him. He also noted procedural problems to assert council’s decision was not authorized by law.

“The court is satisfied that there are arguable grounds for relief in this case,” the decision reads. “In other words, the judicial review has a reasonable prospect of being successful on the merits. At the hearing, counsel for the Rural Municipality of Murray Harbour also conceded that Robertson had raised at least an arguable case on the merits.”

Despite that, the court ruled to dismiss the application for an extension, saying it would have a “detrimental impact on good public administration in the Rural Municipality of Murray Harbour.”

“While Robertson has advanced compelling submissions about the grounds for judicial review, those submissions are not sufficiently weighty for the court to counterbalance the less than satisfactory evidence about his intention to seek judicial review before the statutory time period expired or the unconvincing explanation provided for his substantial delay,” the decision reads. “When considered together with the negative consequences for good and effective public administration, the court is ultimately not satisfied that an extension of time in this case would be a truly judicious exercise of its discretion.

“In light of the discretionary finding on the motion, the application for judicial review filed by Robertson, as amended, is also dismissed.”

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