Court of Appeal rules that judge erred in deciding Steve Kent had privacy breached
Facebook Messenger chats were key to dismissal of 2 Mount Pearl councillors
Newfoundland and Labrador's top court has ruled that a lower-court judge made a series of errors when he found that the City of Mount Pearl breached the privacy of its former top civil servant Steve Kent.
The Court of Appeal found — among other mistakes — that the judge decided the wrong legal issues in a 2022 decision related to the dismissal of two councillors.
"In proceeding as he did, the judge did not consider the city's interest in ensuring that council members abide by their code of ethics and declare conflicts of interests," Justice Katherine O'Brien wrote in the unanimous decision of the three-judge appeal court panel.
"Nor did he consider the public's interest in truth seeking and ensuring that elected officials fulfil their roles ethically."
The main issue wasn't whether Kent's privacy was breached, but whether contentious Facebook conversations should be excluded from the record in the councillors' lawsuits.
The city's appeal was allowed, and the matter has been sent back to the lower court to be reconsidered.
It's the latest development in a tangly controversy that goes back more than five years, and has wended its way from the council chambers to judges chambers.
Central to it all are a series of Facebook Messenger chats between Kent and then-councillors Andrew Ledwell and Andrea Power.
The key chronology of events is laid out in the appeal court decision.
Kent was placed on paid leave from his role as chief administrative officer of the city in the fall of 2019, in the wake of a workplace harassment complaint.
He returned a city-owned iPad, which he had been using for work and to access his personal Facebook Messenger account.
IT department staff saw a banner notification on the tablet that appeared to be for a message between Kent and one or both councillors relating to the harassment investigation. City officials began to monitor the iPad for more such messages.
In June 2020, Kent quit before council could hold a vote on whether to fire him. Council then voted to dismiss Ledwell and Power.
Kent sued the city for constructive dismissal and breach of privacy. Mount Pearl has filed a countersuit.
Ledwell and Power also sued over their dismissals from council.
It's their lawsuits — not Kent's — that are the subject of the Court of Appeal decision.
Kent intervened in the Ledwell and Power matters, saying the Facebook conversations should be excluded from the record.
In a 2022 decision, Justice Alexander MacDonald agreed, finding that the city had "intentionally intruded on Mr. Kent's private affairs" by reading the messages.
The decision put the messages off-limits for the city's defence in the case.
The appeal court found that the judge erred in his "singular focus" as to what was fair to Kent, noting that Kent had "no interest" in the ultimate outcome of the councillors' appeals.
"This was not the appropriate proceeding or venue to find redress for Mr. Kent," the Court of Appeal noted, adding that Kent will have a right to a remedy in his own lawsuit, if he establishes his claim there.
The appeal court noted that other options — such as a publication ban or sealing order — could have been considered.
In an emailed statement to CBC News, the City of Mount Pearl said it is pleased with the decision, but declined further comment as the matter remains before the courts.
Neither Kent, Ledwell nor Power returned emails from CBC News on Monday.
Meanwhile, Kent's lawsuit against the city — and Mount Pearl's counterclaim — sat dormant for years, before both sides filed notices of intention to proceed in December 2024.
Kent had initially included a number of city officials in his statement of claim. But proceedings against the mayor, former deputy mayor and a top civil servant were discontinued earlier this year.
Kent is a former mayor of Mount Pearl, provincial cabinet minister and deputy premier. He left provincial politics in 2017 to take on the job of top civil servant for the city.
Kent has since shifted his focus to federal politics, as a regional organizer for the Conservative Party. He ran in last month's federal election, but was defeated by the Liberal candidate in the riding of Avalon.
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