HomeMy WebLinkAbout2015-01-05 Workshop Meeting Agenda and Reports.pdfCity of Maple Ridge
1.ADOPTION OF THE AGENDA
2.MINUTES –December 8, 2014
3.PRESENTATIONS AT THE REQUEST OF COUNCIL
3.1
4.UNFINISHED AND NEW BUSINESS
4.1 Strategic Planning Approach and Timelines 10:05 a.m.
Staff report dated January 5, 2015 outlining discussions leading up to the setting
of strategic direction for Council in March 2015.
For information only
No motion required
COUNCIL WORKSHOP AGENDA
January 5, 2015
10:00 a.m.
Blaney Room, 1st Floor, City Hall
The purpose of the Council Workshop is to review and discuss policies and
other items of interest to Council. Although resolutions may be passed at
this meeting, the intent is to make a consensus decision to send an item to
Council for debate and vote or refer the item back to staff for more
information or clarification. The meeting is recorded by the City of Maple
Ridge.
REMINDERS
January 5, 2015
Closed Council following COW
Committee of the Whole Meeting 1:00 p.m.
January 13, 2015
Council Meeting 7:00 p.m.
Council Workshop
January 5, 2015
Page 2 of 4
4.2 Mayor’s Homelessness Solutions Task Force
Staff report dated January 5, 2015 recommending that a Mayor’s Task Force be
established; and further, that Mayor Read, Councillor Masse and Councillor
Robson be appointed as the Council Liaisons to this task force.
4.3 Mayor’s Task Force on Open Government
Staff report dated January 5, 2015 recommending that a Mayor’s Task Force on
Open Government be established; and further, that Mayor Read, Councillor Bell
and Councillor Shymkiw be appointed as the Council Liaisons to this task force.
4.4 Remedial Action for the Demolition of Derelict/Unsafe Structure at 22315 122nd
Avenue, Maple Ridge
Staff report dated January 5, 2015 recommending that Council declare the subject
property as a nuisance and require the owner of the property to demolish the
structure, fill in any excavation resulting from the demotion and follow all Work
Safe BC Hazardous materials requires for the safe removal of any and all
hazardous materials in the structure.
4.5 Legal Overview 11:00 a.m.
Presentation by Ray Young and Alyssa Bradley, Young Anderson
•Elected Officials Orientation Material dated January 5, 2015
5.CORRESPONDENCE
The following correspondence has been received and requires a response. Staff is
seeking direction from Council on each item. Options that Council may consider include:
a)Acknowledge receipt of correspondence and advise that no further action will be
taken.
b)Direct staff to prepare a report and recommendation regarding the subject matter.
c)Forward the correspondence to a regular Council meeting for further discussion.
d)Other.
Once direction is given the appropriate response will be sent.
Council Workshop
January 5, 2015
Page 3 of 4
Note: Item 5.1 was deferred from the December 8, 2014 Council Workshop Meeting
5.1 District of Hudson’s Hope – Referral of Proposed Site C Dam Project 12:25 p.m.
to BC Utilities Commission
Letter dated December 2, 2014 from Mayor Gwen Johansson, District of Hudson’s
Hope, requesting support of a request to the Provincial Government by Hudson’s
Hope and the Peace Rive Regional District for a one year moratorium and BC
Utilities Commission consideration of less expensive alternatives to Site C.
6.BRIEFING ON OTHER ITEMS OF INTEREST/QUESTIONS FROM COUNCIL
7.MATTERS DEEMED EXPEDIENT
8.ADJOURNMENT
Checked by: ___________
Date: _________________
Council Workshop
January 5, 2015
Page 4 of 4
Rules for Holding a Closed Meeting
A part of a council meeting may be closed to the public if the subject matter being considered relates to one
or more of the following:
(a) personal information about an identifiable individual who holds or is being considered for a position as
an officer, employee or agent of the municipality or another position appointed by the municipality;
(b) personal information about an identifiable individual who is being considered for a municipal award or
honour, or who has offered to provide a gift to the municipality on condition of anonymity;
(c) labour relations or employee negotiations;
(d) the security of property of the municipality;
(e) the acquisition, disposition or expropriation of land or improvements, if the council considers that
disclosure might reasonably be expected to harm the interests of the municipality;
(f) law enforcement, if the council considers that disclosure might reasonably be expected to harm the
conduct of an investigation under or enforcement of an enactment;
(g) litigation or potential litigation affecting the municipality;
(h) an administrative tribunal hearing or potential administrative tribunal hearing affecting the municipality,
other than a hearing to be conducted by the council or a delegate of council
(i) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for
that purpose;
(j) information that is prohibited or information that if it were presented in a document would be prohibited
from disclosure under section 21 of the Freedom of Information and Protection of Privacy Act;
(k) negotiations and related discussions respecting the proposed provision of a municipal service that are at
their preliminary stages and that, in the view of the council, could reasonably be expected to harm the
interests of the municipality if they were held in public;
(l) discussions with municipal officers and employees respecting municipal objectives, measures and
progress reports for the purposes of preparing an annual report under section 98 [annual municipal
report]
(m) a matter that, under another enactment, is such that the public may be excluded from the meeting;
(n) the consideration of whether a council meeting should be closed under a provision of this subsection of
subsection (2)
(o) the consideration of whether the authority under section 91 (other persons attending closed meetings)
should be exercised in relation to a council meeting.
(p) information relating to local government participation in provincial negotiations with First Nations, where
an agreement provides that the information is to be kept confidential.
City of Maple Ridge
COUNCIL WORKSHOP
December 8, 2014
The Minutes of the Municipal Council Workshop held on December 8, 2014 at 10:00
a.m. in the Blaney Room of the Municipal Hall, 11995 Haney Place, Maple Ridge,
British Columbia for the purpose of transacting regular Municipal business.
PRESENT
Elected Officials Appointed Staff
Mayor N. Read J. Rule, Chief Administrative Officer
Councillor C. Bell K. Swift, General Manager of Community Development,
Councillor K. Duncan Parks and Recreation Services
Councillor B. Masse P. Gill, General Manager Corporate and Financial Services
Councillor G. Robson F. Quinn, General Manager Public Works and Development
Councillor T. Shymkiw Services
Councillor C. Speirs C. Marlo, Manager of Legislative Services
Other Staff as Required
C. Carter, Director of Planning
C. Goddard, Manager of Development and Environmental
Services
J. Charlebois, Manager of Community Planning
Note: This meeting is being recorded by the City of Maple Ridge. The minutes are posted
on the Municipal Web Site at www.mapleridge.ca
1.ADOPTION OF THE AGENDA
The agenda was adopted with the addition of Item 4.3, Iron Horse Youth Safe
House Funding.
2.MINUTES
R/2014-550
Minutes It was moved and seconded
November 3, 2014
That the minutes of the Council Workshop Meeting of
November 3, 2014 be adopted as circulated.
CARRIED
2.0
Council Workshop Minutes
December 8, 2014
Page 2 of 3
3. PRESENTATIONS AT THE REQUEST OF COUNCIL – Nil
4. UNFINISHED AND NEW BUSINESS
4.1 Introduction to Local Government Legislation
• S. Manhas and A. Bradley, Young Anderson
Mr. Manhas and Ms. Bradley provided an overview local government focusing
on:
• Role of Mayor and Council
• Role of Officers and staff
• Open and Closed Meetings of Council
• Public Hearing
Note: Councillor Bell left the meeting at 11:45 a.m.
4.2 Introduction to Development Reports
• C. Carter, Director of Planning
Note: Councillor Bell returned to the meeting at 12:20 p.m.
Ms. Carter gave a power point presentation providing an overview of the
following topics:
• Legislation
• Types of applications
• Acronyms
• Development process
• Development reports
Note: The meeting recessed at 12:31 a.m. and reconvened at 2:20 p.m.
4.3 Iron Horse Youth Safe House
The Mayor updated Council on the status of funding for the Iron Horse Youth
Safe House. Funding for the facility runs out at the end of 2014. The Province
committed to provide 1/3rd of the funding for a further six-month period to
enable conversation with the federal government on their participation in
funding the program.
Council Workshop Minutes
December 8, 2014
Page 3 of 3
5. CORRESPONDENCE
5.1 District of Hudson’s Hope – Referral of Proposed Site C Dam Project
to BC Utilities Commission
Letter dated December 2, 2014 from Mayor Gwen Johansson, District of
Hudson’s Hope, requesting support of a request to the Provincial Government
by Hudson’s Hope and the Peace Rive Regional District for a one year
moratorium and BC Utilities Commission consideration of less expensive
alternatives to Site C.
R/2014-551
Letter from District
of Hudson’s Hope It was moved and seconded
Deferred
That the letter dated December 2, 2014 from the District of
Hudson’s Hope re: a referral of the proposed Site C Dam
Project to the BC Utilities Commission be deferred to the
January 5, 2015 Council Workshop Meeting.
CARRIED
Councillor Bell, Councillor Shymkiw, Councillor Robson
OPPOSED
6. BRIEFING ON OTHER ITEMS OF INTEREST/QUESTIONS FROM COUNCIL – Nil
7. MATTERS DEEMED EXPEDIENT – Nil
8. ADJOURNMENT – 2:56 p.m.
_______________________________
N. Read, Mayor
Certified Correct
___________________________________
C. Marlo, Corporate Officer
City of Maple Ridge
TO: Her Worship Mayor Nicole Read MEETING DATE: Jan.5, 2015
and Members of Council
FROM: Chief Administrative Officer MEETING: Council Workshop
SUBJECT: Strategic Planning Approach and Timelines
EXECUTIVE SUMMARY:
As Council embarks on a four-year mandate, it is important that they set the strategic direction for
the term. An approach to establishing this direction was discussed with Council during orientation,
and is attached. The purpose of this report is to establish calendar dates for related discussions
leading up to Council setting the strategic direction in March. Council comments will be captured
throughout these discussions to assist in the March session.
RECOMMENDATION:
This report is submitted for information only. No resolution is required.
BACKGROUND:
A strategic direction that can be clearly articulated throughout the organization is important so that
departmental workplans are in alignment with Council direction, and implementation is timely,
efficient and effective. It is also important to clearly articulate this direction to the public.
During Council orientation, an approach to establishing this direction was discussed, and forms
Appendix 1 to this report. This approach will include key items coming forward to Council for
discussion, such as community survey data, and presentations by key departments. Appendix 2
outlines these sessions.
Departmental presentations will identify 2014 achievements, outcomes, staffing, and 2015
workplan highlights. Council will receive a written summary prior to the presentation. During these
sessions, Council comments will be captured and brought back in March to assist Council in the
establishment of their strategic direction.
“Original signed by Laura Benson” “Original signed by Paul Gill”
Prepared
by:
Laura Benson, CPA, CMA
Manager of Sustainability
and Corporation Planning
Approved
by:
Paul Gill, B.B.A, C.G.A, F.R.M
General Manager: Corporate &
Financial Services
“Original signed by Frank Quinn” for
Concurrence
by:
J.L. (Jim) Rule
Chief Administrative Officer
Attachments: Appendix 1 – Strategic Planning Approach
Appendix 2 – 2015 Council Workplan: January - March 4.1
Appendix 1
Strategy other steps, e.g.
measure,
evaluate, adjust Action
Strategic Planning Approach: Council Mandate 2015-2018
Purpose: For Council to agree on a methodology and timing to establish strategic direction for the
coming term.
Why this is important:
•The role of staff is to implement the direction of Council. Staff need clarity on that direction;
•This past election has resulted in the most significant change on Council in some time;
•The Council term is now four years in length, making a clear articulation of the strategic
direction for this mandate even more important;
•Staff need to ensure efforts are in alignment with your direction.
Generic Framework of Strategic Planning:
•Strategy to Action
•Many steps in between, including
accountabilities, budgets,
workplans, reporting, etc. But it all starts with Council’s strategic direction.
•This is what staff hope to get clarity on as early in the term as possible.
How do we go about developing this strategy?
1.Council – Staff need to hear from Council about the strategic direction they want staff to
follow. Council members knocked on a lot of doors, had conversations on social media, had
interactions with others, and each have their own thoughts.
2.Data – Staff have a fresh set of statistically representative survey data for Council to review.
3.Departments – Another important source of information is hearing from departments:
•What are they doing, and why?
•What difference is it making in our community?
•What are the financial implications of doing this?
•What specific areas of their operation need to be looked at to affect improvement?
4.Evaluate – Evaluate the current strategy and adjust as Council desires.
5. Immediate Actions – Notwithstanding the process involved in developing a strategy, there
are a few items that Council may wish to begin to work on immediately (e.g. Homelessness
Task Force; community-based Town Hall Meetings). Undertaking some items immediately will
allow time for a fuller conversation around remaining issues. Staff will start working on these
items right away.
How do we turn this strategy into action?
1.Council to brainstorm around specific action items that they wish to direct staff to carry out to
meet their strategic direction.
2.Rank items as short-term and longer term.
3.Priority setting.
When?
Should this approach meet with Council approval, staff will need to establish a calendar for when the
above will be carried out.
Appendix 2
2015 Council Workplan January – March
Date Meeting Subject Matter
Monday, January 5
Council
Workshop
10:00 a.m.
Strategic Planning Approach and Timelines
Legal Overview - Young Anderson
Mayor'sTask Forces - Homelessness, Public Engagement
Monday, January 19
Council
Workshop
10:00 a.m.
Citizen Survey Results
Work Plan Overview - Strategic Economic Initiatives
Integrated Transportation Advisory Committee &
Environmental Sustainability Committee
Monday, February 2
Council
Workshop
10:00 a.m.
Work Plan Overview - Development Process, Bylaws
Tree Protection Bylaw - Process and Update
Parliamentary Procedures
Monday, February 16
Council
Workshop
10:00 a.m.
Medical Marihuana - Potential Zoning Bylaw Amendment
Work Plan Overview - Information Technology, Fire and
Police
Monday, March 2
Council
Workshop
10:00 a.m.
Work Plan Overview - Community Services
Hammond Area Plan Status Update
Tuesday, March 10
Special Council
Workshop
10:00 a.m. Strategic Plan Working Session
Monday, March 16
Council
Workshop
10:00 a.m. Commercial Industrial - Overview & Implementation
It should be noted that agenda items at these meetings are not limited to the above items.
City of Maple Ridge
TO: Her Worship Mayor Nicole Read MEETING DATE: January 5, 2015
and Members of Council FILE NO:
FROM: Chief Administrative Officer MEETING: Workshop
SUBJECT: Mayor’s Homelessness Solutions Task Force
EXECUTIVE SUMMARY:
In response to Council’s interest in forming a task force to identify solutions to social issues, staff are
recommending that the Mayor’s Homelessness Solutions Task Force be established effective
immediately. The task force will assess current social service delivery funding models, the allocation
of law enforcement resources to social issues, and the continuum of service currently available in
our community to develop recommendations that will more effectively serve those individuals in our
community who are at-risk and to enhance the overall health of the community.
RECOMMENDATION(S):
That a Mayor’s Task Force on Homelessness Solutions be established to conduct an assessment of
social service delivery funding models and to develop recommendations that will enhance
community health for Council’s consideration; and further, that Mayor Read, Councillor Masse and
Councillor Robson be appointed as the Council Liaisons to this task force.
DISCUSSION:
a)Background Context:
A discussion at Council Workshop on December 8th indicated Council’s interest in forming a
Mayor’s Task Force to identify needs, issues and solutions to social issues such as
homelessness and addiction in our community. This report responds to that interest by
recommending the formation of the Mayor’s Homelessness Solutions Task Force. It is
recommended that this task force be formed effective immediately with a mandate to
conduct an assessment of senior government layers and responsibilities within the social
service structure that provide funding to our community and region and develop
recommendations that will improve how Maple Ridge fits within this structure. The
assessment will include the identification of:
1.The components of current social service delivery funding models that are working well
for the community.
2.Any service gaps that exist including barriers that have not or cannot be overcome to
access available funding models. An example would be an exploration of the barriers
that Maple Ridge faces regarding the implementation of the Federal Government’s
Housing First Model.
3.Consideration of all other assets, resources and opportunities that are available to us to
overcome barriers and eliminate service gaps. One example would include the Housing
Action Plan that was recently adopted by Council.
1 4.2
The task force’s first order of business will include preparation of a recommendation for
membership appointments and terms of reference for Council’s consideration. To ensure full
and ongoing communication on the progress of this work, it is suggested that the task force
report out monthly at Regular Council meetings in addition to other communication forums.
It is anticipated that the task force’s work will be highly consultative, and ultimately, will
deliver recommendations to Council that will improve our community’s efficient and effective
integration with current funding models provided through senior levels of government and
other benefits. Specific examples include a reduction in homelessness and an increased
sense of safety in the community.
b)Desired Outcome(s):
Specific objectives will be defined by the task force and brought back to Council for
endorsement. However in general, the desired outcome is to ensure that the scope, level,
and provision of social service delivery available to Maple Ridge citizens is adequate,
appropriately resourced, and effective.
c)Strategic Alignment:
This resolution aligns with the Safe and Livable Communities Strategic Direction by pro-
actively addressing the impacts of social issues on the local community and citizens through
social planning and collaboration with other levels of government and local service providers.
d)Citizen/Customer Implications:
The task force’s work will benefit individuals in at-risk situations as well as the overall health
of the community. According to the 2014 homeless count conducted by Alouette Home
Start, eighty-four people in Maple Ridge are currently homeless. Of those eighty-four,
approximately 30 are unsheltered on an ongoing basis. Although a greater percentage of our
citizens faced with homelessness are being supported into housing each year, we continue
to have a chronically homeless population on our streets that are faced with multi-barriers to
being permanently housed. This population will be one area of focus for the task force
recommendations.
e)Interdepartmental Implications:
The task force work will require technical support from Social Planning staff in the
Community Services Department in addition to RCMP and Bylaws, and may require some
Planning staff support. In addition, the Clerks Department will be required to provide clerical
support. There is currently no funding in place to accommodate this additional allocation of
staff time.
f)Business Plan/Financial Implications:
It is recommended that Council consider allocating $10,000 to the task force in alignment
with a funding recommendation coming forward to Council as a result of the review of
Committees of Council. Funds would be used for research, education and engagement
initiatives that may be required to achieve the desired outcomes. If Council wishes to
engage a facilitator to oversee this review process, then additional funding would be
required. Alternatively, the task force may make a more specific funding recommendation
once the terms of reference, objectives and process are refined.
2
g)Policy Implications:
The task force structure is defined in the Committees of Council Policy No. 3.11 as having
responsibility to consider issues within a bounded period of time and once finished this work,
through resolution of Council, the task force will cease to exist.
CONCLUSIONS:
The establishment of a Mayor’s Homelessness Solutions Task Force will assist Council to improve
our community’s efficient and effective integration with current funding models provided through
senior levels of government and to ensure the health and safety of our citizens and our community.
“Original signed by Kelly Swift”__________________________
Approved by: Kelly Swift, General Manager, Community Development,
Parks & Recreation Services
“Original signed by J.L. (Jim) Rule”_____________________
Concurrence: J.L. (Jim) Rule
Chief Administrative Officer
3
City of Maple Ridge
TO: Her Worship Mayor Nicole Read MEETING DATE: January 5, 2015
and Members of Council FILE NO:
FROM: Chief Administrative Officer MEETING: Workshop
SUBJECT: Mayor’s Task Force on Open Government
EXECUTIVE SUMMARY:
In response to Council’s interest in forming a task force on community engagement, staff are
recommending that the Mayor’s Task Force on Open Government be established effective
immediately. The task force purpose is to increase accountability, transparency, and citizen’s
understanding of and contribution to decision-making.
RECOMMENDATION(S):
That a Mayor’s Task Force on Open Government be established to develop recommendations that
will increase citizen engagement in civic matters for Council’s consideration; and further, that Mayor
Read, Councillor Bell and Councillor Shymkiw be appointed as the Council Liaisons to this task force.
DISCUSSION:
a)Background Context:
A discussion at Council Workshop on December 8th indicated Council’s interest in forming a
Mayor’s Task Force to increase citizen engagement, build strong relations and improve
communications between Municipal Hall and the citizens we serve. This report responds to
that interest by recommending the formation of the Mayor’s Task Force on Open
Government. It is recommended that this task force be formed effective immediately with a
mandate to develop recommendations that will strengthen accountability and transparency
at Municipal Hall and increase citizen’s understanding of and contribution to decision-
making. The task force work will include a review of applicable laws, policies and current
practices that will input to the development of task force recommendations.
The task force’s first order of business will include preparation of a recommendation for
membership appointments and terms of reference for Council’s consideration. To ensure full
and ongoing communication on the progress of this work, it is suggested that the task force
report out monthly at Regular Council meetings in addition to other communication forums.
It is anticipated that the task force’s work will be highly consultative, and will deliver
recommendations to Council that will respond to the mandate and defined objectives that
will be brought back to Council for endorsement once the task force is in place.
b)Desired Outcome(s):
The desired outcome is to strengthen accountability and transparency at Municipal Hall and
to increase citizen’s understanding, access and contribution to decision-making
1 4.3
c)Strategic Alignment:
This recommendation aligns with the Governance strategic direction to function as an open
government with the greatest possible access by citizens to information and opportunity for
engagement in decision-making processes.
d)Citizen/Customer Implications:
The task force’s work will result in increased opportunities for citizen’s to participate in civic
matters through enhanced transparency, accountability and accessibility to information
which will enable citizens to become more active, empowered and engaged participants.
e)Interdepartmental Implications:
The task force work will primarily rely on the Communications, Information Technology and
Clerks Departments which will impact each Departments work plan. There is currently no
funding in place to accommodate this additional allocation of staff time.
f)Business Plan/Financial Implications:
It is recommended that Council consider allocating $10,000 to the task force in alignment
with a funding recommendation coming forward to Council as a result of the review of
Committees of Council. Funds would be used for research, education and engagement
initiatives that may be required to achieve the desired outcomes. Alternatively, the task
force may make a more specific funding recommendation once the terms of reference,
objectives and process are refined.
g)Policy Implications:
The task force structure is defined in the Committees of Council Policy No. 3.11 as having
responsibility to consider issues within a bounded period of time and once finished this work,
through resolution of Council, the task force will cease to exist.
CONCLUSIONS:
The establishment of a Mayor’s Citizen Engagement Task Force will support Council’s desire to
enhance our function as an open government with the greatest possible access by citizens to
information and opportunity for engagement in decision-making processes.
“Original signed by Kelly Swift”__________________________
Approved by: Kelly Swift, General Manager, Community Development,
Parks & Recreation Services
“Original signed by J.L. (Jim) Rule”_____________________
Concurrence: J.L. (Jim) Rule
Chief Administrative Officer
2
Page 1 of 5
City of Maple Ridge
TO: Her Worship Mayor Nicole Read DATE: January 5, 2015
and Members of Council
FROM: Chief Administrative Officer Meeting: Council Workshop
SUBJECT: Remedial Action for the Demolition of Derelict/Unsafe Structure at
22315 122nd Avenue Maple Ridge
EXECUTIVE SUMMARY:
On November 3rd, 2014, Council considered a development application report on the subject
property. Council deferred giving second reading to a rezoning application and in doing so set a
condition for the existing house to be demolished within 60 days. The 60 day deadline expired on
January 2nd, 2015. The house has not been removed. This report provides the legal mechanism for
the City to demolish the structure. Under this process all cost incurred by the City will be recovered.
The property at 22315 122nd Avenue is owned by Danik Daniels and Blossom Daniels (the
“Owners”). The residential building (the “Structure”) on site has historically been used as a single
family dwelling for approximately 50 years (exact age unknown). The Structure is now in a
dilapidated damaged condition and poses a hazard and nuisance to the neighbourhood. The
Structure has been damaged and allowed to deteriorate to the point where it no longer complies with
minimum building code requirements for occupancy purposes. Since the initial safety inspection
this year on February 26, 2014 , due mostly to unauthorized access by unknown persons, the
electrical, mechanical and plumbing systems have been damaged or removed to the point where
they are no longer recognizable or functional and require replacement in their entirety.
The Structure has been thoroughly inspected by both the Manager of Inspection Services and the
Assistant Fire Chief and as a result it has been determined that the Structure does not comply with
or provide the basic life, health and safety needs as outlined in the Cities current Building Bylaw or
the BC Building Code and is not habitable with respect to the British Columbia Fire Code. Reports
from both the Manager of Inspection Services and the Assistant Fire Chief are attached as Appendix I
and Appendix II respectively. Photos taken of the site inside and outside of the Structure outside of
the Structure are set out throughout the attached reports.
Throughout the building, there is an accumulation of combustible building materials such as tables,
chairs and discarded material that constitutes a fire hazard as it is easily ignitable. In addition, the
type and condition of the material presents a hazard to fire fighters who may enter the structure
including but not limited to broken glass, sharp objects and other fire damaged building elements
can be found throughout the structure. The building is not habitable and these premises are now in
such a state of disrepair that a fire starting in them will spread rapidly and endanger life and
property. Firefighters will not be able to enter this structure to safely fight a fire or rescue anyone
that may be inside the building.
Although the Fire Department has taken steps to board-up this Structure it has been found insecure
on numerous occasions since September 2011 resulting in vandalism to the structure itself and
material inside the structure.
4.4
Page 2 of 5
There was an accessory structure located on the Property and this structure was previously
demolished by the property owner.
Based upon the above referenced information on this matter staff recommends Council pass the
following resolutions.
RECOMMENDATIONS:
NOW THEREFORE, be it resolved:
THAT Council hereby consider that the property located at 22315 122 Avenue, and legally
described as PID 009-504-834, Lot 6, District Lot 397, Group 1, New Westminster Plan
11251 (the “Property”) is in a hazardous condition and creates an unsafe condition within
the meaning of Sections 73 (2)(a) and 73 (2)(b) of the Community Charter, as a result of the
Structure being in a dilapidated condition and insecure from time to time over the past four
years and the Structure’s continual structural deterioration that the Structure contravenes
the Maple Ridge Building Bylaw No. 6925-2012 and the BC Building Code.
THAT Council hereby declares that the Property is a nuisance, within the meaning of Section
74(2) of the Community Charter, as Council considers the Structure to be so dilapidated and
unclean as to be offensive and pose a risk to the community, and Council considers that
there is a danger to people adjacent to or visiting the Property, especially children due to the
likelihood of harm or personal injury.
Council therefore resolves that within thirty (30) days of receiving a copy of this resolution, the Owner
of the Property is required to perform the following Remedial Action requirements:
1. Obtain a demolition permit and demolish the Structure, remove the foundation and all
demolition materials from the site.
2. Any excavation resulting from the demolition must be filled in to prevent water from ponding
on the site.
3. The owner must follow all Work Safe BC Hazardous Materials requirements for the safe
removal of any and all hazardous materials in the structure.
In the event the Owner has not performed all of the Remedial Action requirements within 30 days
after notice of this resolution is delivered to the Owner, the District may, by its own forces or those of
a contractor engaged by the District, enter the Property and perform the Remedial Action
requirements.
In the event the District takes the above referenced action, the District may recover the expense
from the Owner, together with costs and interest, in the same manner as municipal taxes in
accordance with sections 17, 258, and 259 of the Community Charter.
If the person with notice of this resolution wishes to request reconsideration of these requirements
of Council, written notice of this request must be provided to the Manager of Legislative Services
within 14 business days of that person receiving notice of this resolution.
Page 3 of 5
DISCUSSION:
a) Background Context:
On November 3, 2014 Council considered a development application report regarding the
subject property. The Owners of the property has an application on file to rezone the subject
property as well as an adjacent property from RS-1 9One Family Urban Residential) to RM-2
(Medium Density Apartment Residential), to permit future construction of a 69 unit, 5 storey
apartment building with underground parking. At this point the application has first reading and
the Owners were asking for consideration of second reading on the proposed development.
However, due to the problems with the subject property as set out in this report the staff
recommendation, which was approved by Council, is as follows:
1. That consideration of second reading of Maple Ridge Zone Amending Bylaw No.
6987-2013 be deferred for the lesser of 60 days, or until the following terms and
conditions are completed:
a. Demolition of the existing house and outbuildings at 22315 122 Avenue
within 60 days;
b. Payment of $2,666.00 in outstanding charges for Unsightly and Insecure
Premises Infractions within 30 days; and
c. Installation of secure temporary fencing around the building within 30 days.
2. That staff be directed to report back to Council on the status of the conditions noted
in the report dated November 3, 2014 for file 2013-029-RZ by January 13, 2014.
At the time of preparing this report, the demolition of the outbuilding on the subject site has
taken place however the existing house is still on site. The Planning department will be
reporting back to Council on January 13, 2015 to confirm if this condition has been met. The
condition set out in “b.” of the recommendation has been met. However the condition set
out in “c” of has not been met. There is a construction fence on site however the fencing
does not go around the building as required it only blocks off the front yard. The sides and
rear of the property are still easily accessible and therefore the Owners are in default of this
condition. The requirement was clearly worded however not complied with leaving the
building easily accessible to anyone wishing to gain access.
The Structure on the Property located at 22315 122nd Avenue poses a safety and nuisance
concern in the community. The purpose of this report is to recommend Council use the
authority provided under Part 3 Division 12 including Sections 73 and 74 of the Community
Charter to impose Remedial Action requirements on the Owner as recommended in this
report.
In the body of the report attached as Appendix I, from the Manager of Inspection Services is a
breakdown of sections from the B.C. Building Code that are not being met. These items are
considered to be of health and life safety concerns in accordance with the objectives of the
B.C. Building Code and would require upgrading to be in compliance with the B.C. Building
Code. The inspection conducted by the Manager of Inspection Services in February 2014,
revealed the Structure does not comply nor provide the basic life, health and safety needs as
prescribed in the Building Bylaw No. 6925-2012.
Page 4 of 5
In November 2014, staff retained the services of Universal Appraisal to provide an analysis
of the residential structure at 22315 122nd street to establish the current market value of
the structure, the cost to demolish the structure and the cost and feasibility of bringing it
back to a habitable state. They were not to take into consideration the value of the land
itself. In their detailed report of November 20, 2014 (attached as Appendix III) based on the
criteria given to them, Universal Appraisal provided the City with the information requested.
The determination of the value of the Structure was $0. and the estimated cost of repairing
the building to bring it back to a habitable state was $100,000.00. Their professional
opinion of the feasibility of the future habitation of the Structure is detailed on page 7 and 8
of their report, states, in part, that “no prudent owner would incur significant expense to
upgrade a structure that is likely to be demolished within the foreseeable future.” The report
goes on to estimate the cost of repairing the Structure, the assumption of potential rent and
the number of years it would take the owner to realize a return on such an investment not
including property taxes or property maintenance. The estimated cost of demolition of the
Structure is between $10,000.00 and $15,000.00.
Staff have, on several occasions, requested the Owner to demolish this Structure however
the response has always been that there is a mortgage on the property that requires the
Structure to remain on the property unless prior approval from the mortgage company is
given and furthermore that this would not be possible unless approval for redevelopment of
the land was secured from the City. Staff sought clarification through City Solicitors on this
matter and after reviewing the mortgage documents on record, while this is one condition of
the mortgage, there are further conditions that require the Owner to ensure the land is not
abandoned or left unoccupied for thirty (30) or more consecutive days. This Structure has
been vacant since 2010. Also the entire property is to be maintained in accordance with City
Bylaws. This property has been the subject of numerous breaches of the Untidy and
Unsightly Premises Bylaw over the past 4 years as well as the Vacant and Abandoned
Building Bylaw requiring excessive amounts of staff time and cost to resolve. While the cost
of all of these Bylaw breaches went to the Owners tax account it was only in November 2014
that the final outstanding amount of $2666.72 was paid to the City by the Owner. However,
staff continue to deal with the property being insecure and the property not being properly
fenced as required.
a)Legal Counsel’s Review
This report has been reviewed with our municipal solicitors with respect to compliance with
Division 12 of Part 3 of the Community Charter (remedial action requirements).
b)Citizen/Customer Implications:
This Structure continues to deteriorate and in doing so creates a hazardous situation as well
as being an eyesore. Despite attempts to secure the Structure there is evidence of entry by
unknown persons. By removing the deteriorating structure the safety of the site will be
restored.
Page 5 of 5
c) Alternatives
Council could direct staff to prepare an alternative approach to dealing with this hazardous
Structure.
d) Financial Implications
Sections 17, 258 and 259 of the Community Charter allow the District to recover the
expense of demolishing the hazardous Structure, from the Owner, together with costs and
interest, in the same manner as municipal taxes.
CONCLUSIONS:
Both the Fire Department and the Building Department report that the Structure on the Property at
has deteriorated to the point where it no longer complies with the minimum building code
requirements and has been damaged to the extent that repairing the structure is not practicable. In
addition the Structure is a potential safety hazard and a nuisance. This report recommends that the
Structure be demolished and that Remedial Action requirements as described in the
recommendation in this report be approved.
“Original signed by E.S. (Liz) Holitzki”_
Prepared by: E.S. (Liz) Holitzki
Director: Licences, Permits and Bylaws
“Original signed by Christine Carter”
Approved By: Christine Carter, M.PL, MCIP RPP
Director of Planning
“Original signed by Frank Quinn”
Approved by: Frank Quinn
General Manager: Public Works and Development Services
“Original signed by Jim Rule”
Concurrence: J.L. (Jim) Rule
Chief Administrative Office
Appendices:
I. Memo from Manager of Inspection Services
II. Memo from Assistant Fire Chief, Prevention & Planning
III. Analysis of the Residence at 22315 122nd Avenue – Universal Appraisal
1
Interoffice
Memorandum
TO: LIZ HOLITZKI, DIRECTOR LICENCES, PERMITS & BYLAWS
FROM: STEPHEN J. CÔTÉ-ROLVINK, MANAGER OF INSPECTION SERVICES
SUBJECT: REMEDIAL ACTION REPORT FOR 22315 – 122 AVENUE, MAPLE RIDGE
DATE: OCTOBER 29, 2014
Introduction
The following report is in support of the City’s and public's desire to have the above mentioned
building removed as it creates a nuisance to the general public and is a building that is unsafe. The
building located at 22315 – 122 Avenue has been vacant since 2010. Since that time the building
has not been maintained nor repaired by the current owners. Based on inspections conducted by Fire
Chief Dane Spence and myself as the result of a fire on the adjacent property the building was found
to be damaged to more than 50% of its assessed value. Based on Section 8.2.4. of the City’s Building
Bylaw 6925-2012, this building is required to comply with all current codes and bylaws of the City and
the Province.
The damage to this building is the result of persons gaining access to the space. Due to this access,
the electrical, mechanical and plumbing systems have been damaged or removed to the point where
they are no longer recognizable or functional and would be required to be replaced in their entirety. As
this is the case the following report makes no further reference to these items.
The following report is based on the building code issues as it relates to the structure and the
surrounding lands. The following report begins on the deficiencies and concerns with the exterior of
the building and then moves into the interior spaces.
History
A safety inspection was completed on February 26, 2014. Upon review of both the exterior and
interior of the building it was evident that the building has deteriorated and is damaged to the point
where it no longer complies to the minimum code requirements. These findings are only in those
areas of primary code concern being safety, health and fire protection of buildings and facilities as
identified in the introduction to the BC Building Code page v. Based on the use of this building as a
residence the building is being evaluated based on its continued use which the building code would
identify as a Group C occupancy classification. Using this as the defining guidelines the code requires
any buildings of this use to be constructed under Division B Part 9 which places a high value on
structural adequacy and life safety.
The code defines its Safety, Health and Fire Protection requirements in objective statements (OS)
which are located in Division A – Part 2, Section 2.2 ”Objectives” of the 2012 B.C. Building Code. The
statements in this section that are applicable to above referenced premises are: OS Safety, OS1 Fire
Safety, OS1.4 – fire safety systems failing to function as expected; OS2 Structural Safety, OS2.3,
OS2.5; OS3 Safety in Use, OS3.1, OS3.4, OS3.7; OH Health, OH1 Indoor Conditions, OH1.1, OH1.2 –
inadequate thermal comfort, OH1.3; OH2 Sanitation, OH2.5 – contact with vermin and insects; OP fire
and Structural Protection of Buildings,OP1 Fire Protection of the Building, OP1.4 - fire safety systems
failing to function as expected; OP2 Structural Sufficiency of the Building, OP2.2, OP2.3, OP2.5;
2
OP2.6;OP4 Protection of Adjacent Buildings from Structural Damage, OP4.3 - impact of the building on
adjacent buildings. A complete list of the referenced objective statements is attached to this report as
Appendix I.
These findings do not deal with the broader topics of aesthetic or cosmetic irregularities within the
building or on the buildings exterior which are often more apparent but not regulated within the
mandates of codes. These findings also do not deal with current Building Code requirements where
there is no issue in respect of the health or safety of the building.
Objective Statements are found in Division A of the B.C. Building code 2012. Any other references to
sections in this report are to Division B of the B.C. Building Code unless otherwise stated.
Summary
Building Exterior
Exterior windows and doors no longer in place or functional.
Exterior cladding damaged by exposure to the environment and human intervention.
Exterior walking surfaces fractured and broken leading to tripping hazards.
Objective statement OS2.3 – Damage to or deterioration of building elements.
Following is a breakdown of sections from the B.C. Building Code that are not being met. These items
are considered to be of health and life safety concerns in accordance with the objectives of the B.C
Building Code and would require upgrading to be in compliance with the B.C. Building Code.
Subsection 5.1.4. Resistance to Loads and Deterioration
Sentence 5.1.4.1.(1) Defines the basic criteria for exterior cladding and that it is to
be able to withstand both environmental and structural loads.
o Environmental loads are those loads that the environment place on the building
due to dissimilar interior and exterior environments.
o Structural loads are the physical loads placed on the building whether from its
own components that go to making the building or those imposed on the
building by the environment such as wind and snow
Sentence 5.1.4.2.(1) Deals with component compatibility and resistance to
deterioration of those components.
Subsection 5.6.1. Protection from Precipitation
Sentence 5.6.1.1.(1) defines the requirement that the exterior elements shall
minimize the ingress of precipitation into the assembly and prevent it from entering into
the interior.
Subsection 5.6.2. Sealing, Drainage, Accumulation and Disposal
Sentence 5.6.2.1.(1) identifies the need for materials to be sealed at joints or to
allow for the provision for drainage.
Sentence 5.6.2.2.(2) identifies the need to ensure drainage is provided where
horizontal surfaces can accumulate precipitation.
3
Exterior photos of building
4
5
6
Building's Interior Top Floor
Entry door is no longer functional
Moisture content in the building's interior is causing interior mold
Thermal insulation and air or vapour barriers damaged to the point of no functioning.
Water penetrating through the roof.
Moisture penetration through the roof is causing further deterioration of interior and structural
components.
Kitchen damaged and elements removed.
All interior surfaces damaged to the point of not being able to perform their intended functions
Following is a breakdown of sections from the B.C. Building Code that are not being met which would
require upgrading.
Sub section 9.7.3. Performance of Windows, Doors & Skylights
Identifies the minimum functional criteria these elements require to achieve
environmental separation.
Sub Section9.9.9.9. Egress from dwelling units
Establishes the minimum criteria for exiting a residential building.
Subsection 5.1.4. Resistance to Loads and Deterioration
Sentence 5.1.4.1.(1) Defines the basic criteria for assemblies to have sufficient
capacity and integrity to resist or accommodate both environmental and structural
loads.
Sentence 5.1.4.2.(1) Deals with component compatibility and resistance to
deterioration of those components.
o Environmental loads are those loads that the environment place on the building
due to dissimilar interior and exterior environments.
o Structural loads are the physical loads placed on the building whether from its
own components that go to making the building or those imposed on the
building by the environment such as wind and snow.
Subsection 5.1.5. Other Requirements
Indicates that structural and fire safety in other parts of the code must still be met.
Subsection 5.2.1. Environmental Loads and Design Procedures
Sentence 5.2.1.2.(1) indicates the need for determining these loads with established
practices.
Subsection 5.3.1. Thermal Resistance of Assemblies
Article 5.3.1.1. indicates the need to ensure assemblies are able to resist or dissipate
transferred heat.
o Also only waves this criteria where it can be shown not to affect the users, the
building or the buildings services.
Article 5.3.1.2. identifies the need to ensure condensation does not occur on the
interior face or within the wall assembly.
Subsection 5.4.1. Air Barrier Systems
Article 5.4.1.1. indicates the need for assemblies to control air leakage and minimize
accumulation of condensation and penetration of precipitation into the assembly.
Subsection 5.5.1. Vapour Barriers
7
Article 5.5.1.1. indicates the need to position materials to control vapour diffusion into
the assembly or drainage out of the assembly.
Top floor interior photos
8
9
10
11
12
Building's Interior Bottom Floor
Interior surfaces are covered with mold.
Access to crawl not code compliant.
Heating system does not comply to code requirements, and is not functioning.
Electrical and plumbing systems have been removed or damaged to the point of not
functioning.
Following is a breakdown of sections from the B.C. Building Code that are not being met which would
require upgrading.
Sub Section9.9.9.9. Egress from dwelling units
Establishes the minimum criteria for exiting a residential building
Subsection 5.1.4. Resistance to Loads and Deterioration
Sentence 5.1.4.1.(1) Defines the basic criteria for assemblies to have sufficient
capacity and integrity to resist or accommodate both environmental and structural
loads.
Sentence 5.1.4.2.(1) Deals with component compatibility and resistance to
deterioration of those components.
o Environmental loads are those loads that the environment place on the building
due to dissimilar interior and exterior environments.
o Structural loads are the physical loads placed on the building whether from its
own components that go to making the building or those imposed on the
building by the environment such as wind and snow.
Sub section 9.8.7. Handrails
identifies what the minimum design, installation and load carrying ability of handrails.
Subsection 5.1.5. Other Requirements
Indicates that structural and fire safety in other parts of the code must still be met.
Subsection 5.2.1. Environmental Loads and Design Procedures
Sentence 5.2.1.2.(1) indicates the need for determining these loads with established
practices.
Subsection 5.3.1. Thermal Resistance of Assemblies
Article 5.3.1.1. indicates the need to ensure assemblies are able to resist or dissipate
transferred heat.
o Also only waves this criteria where it can be shown not to affect the users, the
building or the buildings services.
Article 5.3.1.2. identifies the need to ensure condensation does not occur on the
interior face or within the wall assembly.
Subsection 5.4.1. Air Barrier Systems
Article 5.4.1.1. indicates the need for assemblies to control air leakage and minimize
accumulation of condensation and penetration of precipitation into the assembly.
Subsection 5.5.1. Vapour Barriers
Article 5.5.1.1. indicates the need to position materials to control vapour diffusion into
the assembly or drainage out of the assembly.
13
Bottom floor interior photos
14
15
16
17
The items identified are items that do not comply with the codes Objective Statements for life and
health safety and would need to be upgraded to ensure compliance with the B.C. Building Code.
Further, due to the degree of environmental contamination from water ingress into the building and
damage, all areas would not comply with minimum health safety requirements.
Conclusion
The items contained within this report are items that directly relate to the life and health safety
requirements of the B.C. Building Code, B.C. Plumbing Code, Natural Gas and Propane installation
Code and the Canadian Electrical Code, codes which are enforced under the City of Maple Ridge’s
Building Bylaw No. 6925-2012 as amended.
These items in the opinion of the Local Electrical and Gas Safety Manager, Chief Building Official and
Manager of Inspection Services are items that are required to be repaired to ensure life and health
safety of persons occupying or attending this property. Further, it is my opinion that the building no
longer complies to the minimum life, healthy safety, and structural safety required by the BC Building
Code and that it would not be economically viable to rehabilitate the existing building.
Stephen J. Côté-Rolvink, RBO, CRBO
Manager of Inspection Services
Local Safety Manager
Chief Building Official
INTEROFFICE
MEMORANDUM
To: Liz Holitzki – Director of Business Licenses, Permits & Bylaws
From: Michael Van Dop – Assistant Fire Chief, Prevention & Planning
Subject: 22315 122 Avenue – Remedial Action Report
Date: December 5, 2014
This property consists of a single family residential that has been vacant since the fall of 2010.
The structure has had Hydro, Gas and water utilites shut off to it. This property, along with the
neighboring property to the West (22305 122 Ave) are owned by the same individual. There
currently is an application before council to combine and rezone the properties.
Since becoming vacant the building and property has seen a steady rate of decay. The building
has been noted as insecure on numerous occasions. The homeowner has been contacted and
ordered to have the site maintained secure or demolished. In the spring of 2013, the homeowner
verbally indicated his intent to demolish the structure, however as of today it still stands with our
orders having gone unheeded. This has resulted in district staff arranging to have the building
resecured on the owners behalf. All costs incurred by the District have been assigned to the
property owner under the Vacant/Abandonded Building Bylaw.
The building has been targeted by an unwanted element within the community. Within the
structure there is evidence of unauthorized people living inside and small fires having been set.
There is evidence of copper theft throughout the building with plumbing pipe and electrical
conducters having been removed. The interior of the building has been heavily damaged and
the exterior is covered in graphitti.
Inside the structure, the interior wall drywall that was originally installed to provide a fire
separation between the rooms has been damaged or removed to the extent that it will no longer
effectively prevent the spread of fire. Similarly, the ceiling drywall separting the living space from
the attic has been damaged or removed to the point where it will no longer prevent the spread of
fire. Without the protection offered by the fire resistive properties of the wall and ceiling finishes,
the building structural elements are unprotected and will fail prematurely in the event of fire.
This building has been found insecure in contravention of both the BC Fire Code and the Maple
Ridge Vacant / Abandoned Bulding Bylaw No. 6958-2012.
•BC Fire Code section 2.4.6.1 states: Vacant buildings shall be secured against
unauthorized entry.
•Maple Ridge Vacant / Abandoned Bulding Bylaw No. 6958-2012, section 3 states: An
owner of any Vacant / Abandoned building must ensure the premises are made and kept
secure against unaurthorized entry or occupation at all times.
Many sections of the buildings wall and ceiling finishes have been removed and in my opinion
this lack of fire separations will result in a fire rapidly spreading throughout the entire building.
The BC Fire Code supports this by stating:
APPENDIX II
INTEROFFICE
MEMORANDUM
• Section 2.2.1.1. (3) states: Rooms, corridors, shafts and other spaces shall be separated
where practical by fire separations conforming to the British Columbia Building Code.
• Section 2.2.1.2. (1) provides: Where fire separations are damaged so as to affect their
integrity, they shall be repaired so that the integrity of the fire separation is maintained.
It should be noted that this structure is of the vintage where it is reasonable to assume that
building materials such as drywall filler and ceiling spray texture would contain asbestos and the
poor condition of these building elements exposes those entering the building to potentially
hazardous materials. Work Safe B.C. Regulation, 6.2 and Sections 6.3 to 6.32 apply to a
workplace where a worker is or may be exposed to potentially hazardous levels of asbestos
fibre. Anyone entering the structure should be made aware of the presence of potentially
hazardous materials.
Since becoming vacant, this home was used as a movie set in 2011. There has been a partial
haz-mat assessment and remediation completed on the structure. The bulk of the hazardous
building materials still remain inside. In some rooms the structures asbestos containing
vermiculite insulation is found lying loose on the floor. See attached photographs.
In my opinion, these buildings are not habitable and have been allowed to deteriorate to the point
where the structural integrity of the buildings have been compromised. I find that these premises
are now in such a state of disrepair that a fire starting in them will spread rapidly and endanger
life and property. Its condition renders firefighters unable to enter the structure to safely fight a
fire or rescue anyone that may be inside.
Given the high visability of the building, close proximity to a school and the high volume of
vehicle and pedestrian traffic; this house has become a significant hazard and attracts an
unwelcome element in the community. Accordingly, I find that the building is in, and creates an
unsafe condition; it should be demolished or repaired immediately.
Update:
Since the original writing of this report in March 2014, it should be noted that the property owner
has demolished the shed at the rear property. This was done in combination with the demolition
of neighboring house on the property to the West which was vacant and eventually heavily
damaged by multiple fires.
At a recent coucil meeting on November 3, 2014, second reading on rezoning was deffered until
the owner complied with the following condition:
c) Installation of secure temporary fencing around the building within 30 days. Failure to
comply will result in the City of Maple Ridge hiring a contractor and billing the property
owner.
This condition has been partially met with the property owner having installed temporary fencing
enclosing the front yard only.
Rear of the property – Note access is now being gained through a breach in the exterior wall.
Front of the property
West side of the property
Interior of the structure – squatters bed along with smoking material and evidence of a fire having been
set on the floor
Interior of the structure – Note missing ceiling finish, breached walls and evidence of partial haz-mat
remediation.
Interior of the structure – Note fallen ceiling finish and asbestos containing vermiculite insulation on the
floor which fell from the ceiling .
Evidence of squatters living in basement. Copper piping has been removed from hot water tank for its
scrap value.
Evidence of small fire being set in basement to facilitate illicit drug use.
•
DISTRICT OF MAPLE RIDGE
ELECTED OFFICIALS ORIENTATION SEMINAR
MONDAY, JANUARY 5, 2015
•
WWW.YOUNGANDERSON.CA
1616 -808 Ne lson Street, Box 12147 Ne lson Square , Vancouver, BC V6Z 2H2 I te l: 60 4 .689 .7400 I lax : 604.689.3444 I tolllree : 1.800 .665.3540
201 . 1456 St. Paul Street, Kelowna, BC V1 Y 2E6 I tel: 250 .712.1130 I lax: 250.712 .1180 4.5
District of Maple Ridge
Orientation Seminar
Monday, January 5, 2014
Document Tab
Controlling Councillor Conduct .............................................................................................. 1
Defamation: What Are Your Rights? ...................................................................................... 2
Elected Officials: Game Misconduct ....................................................................................... 3
FOI Update: A Review of Some “Interesting” FOI Decisions ................................................ 4
Local Government Procurement: Beyond “Contract A” ......................................................... 5
Sauce for the Gander: Conflict of Interest for Elected Officials & Employees ....................... 6
CONTROLLING COUNCILLOR CONDUCT
NOVEMBER 29, 2013
Barry Williamson
CONTROLLING COUNCILLOR CONDUCT
YOUNG ANDERSON
1
CONTROLLING COUNCILLOR CONDUCT
I. INTRODUCTION
This paper will consider the power to, and the processes by which a council may address the
misconduct of one of its members. After reviewing the two decisions in BC that directly bear on
this question, the paper will review the provisions of the Community Charter concerning
councillor misconduct and then turn to a consideration of the Ontario regime where codes of
councillor conduct are a significant feature and have a basis in statute. The paper ends with a
discussion of the relative merits of the Ontario and BC approaches and considers the place for
codes of conduct in British Columbia.
A. Power to Discipline Councillors
The question of whether a council or board has the power to sanction its members has now
been considered in two decisions in this province. The first case, Barnett v. Cariboo Regional
District, 2009 BCSC 471, dealt with a resolution that would have prohibited Director Barnett
from contacting or communicating with staff, except through email or written communications
delivered to the front desk of the regional district office, and through the CAO. Barnett’s
alleged conduct during his years as an area director had led to numerous complaints from staff,
other directors and the public.
There was no explicit statutory basis for the limitation on Director Barnett being able to
communicate directly with staff. Barnett argued that the board lacked jurisdiction to pass the
resolution. Although the resolution was set aside on procedural grounds (to be discussed
further below), the court was satisfied that the board had the jurisdiction to adopt the
resolution. In relatively brief reasons on this point, Mr. Justice McKinnon acknowledged that
the case law and the Local Government Act (LGA) required that the court take a broad and
purposive approach to the interpretation of the regional district’s powers. Noting that the
“powers, duties and functions of a regional district are to be exercised and performed by its
board”, he reasoned that there were no provisions in the LGA that limited the board from
exercising those “powers, duties and functions” in addressing the day-to-day conduct of its
directors.
Further, he accepted that the regional district’s purpose of providing good government would
be impaired if it could not deal with conduct issues between directors and staff. As a result
there must be a process for addressing those issues. It was, he concluded, a matter of the
board’s ability to determine its own internal procedures that it must be able to control director
misconduct.
The jurisdictional issue was raised again in Skakun v. Prince George, 2011 BCSC 1796. Coun.
Skakun had been convicted of disclosing personal information contrary to section 30.4 of the
Freedom of Information and Protection of Privacy Act (FOI Act) and fined $750. He challenged,
CONTROLLING COUNCILLOR CONDUCT
YOUNG ANDERSON
2
by judicial review, a proposed censure resolution that would also have removed him from
certain council committees and from the rotation for acting mayor. Mr. Justice Crawford
followed a similar path of reasoning as Justice McKinnon, finding that municipal legislation
should be interpreted broadly and allowing for “gaps” to be appropriately filled by the
implication of a power. While the Legislature had seen fit to deal with the most serious matters
of misconduct, such as conflict of interest, that could result in disqualification, this did not leave
a municipal council without power to deal with lesser misconduct that did not give rise to
statutory disqualification. In Coun. Skakun’s case his conduct not only contravened the FOI Act,
but also breached section 117 of the Community Charter requiring council members to keep
confidential any record held in confidence (the record was an independent investigator’s report
of harassment allegations received at an in camera meeting).
The judge analogized to professional discipline: the misconduct of a doctor or lawyer could
result in a court process, but also attract a professional body’s discipline process. Thus he
considered it reasonable to imply an “obligation” to regulate councillor misconduct that fell
substantially below the expected standard of conduct.
There were several parts to the draft council resolution; the first being the censure aspect, that
council express its disapproval of the councillor’s conduct in releasing the report. That was
followed by directions to apologize, to comply with the oath of office, not to release any further
confidential or third party personal information. The only real sanctions were the proposed
removal of the councillor from rotating positions of acting mayor and chair of the committee of
the whole. While apparently satisfied he could imply a power to exercise censure, the judge
stated that he was less confident of the basis for sanction. He acknowledged however, that the
Interpretation Act states that a provision authorizing the appointment of an officer includes the
power to terminate the appointment or remove the officer. The judge did not, in the final
analysis, resolve this uncertainty before addressing the procedural issues raised by the petition.
The Barnett and Skakun decisions provide support for the broad notion that municipal councils
and regional boards are not without power to address misconduct of councillors or directors.
The outer limits of that power, in terms of the range of consequences or sanctions that may be
visited on a council member will be considered later.
B. Procedural Fairness Requirements
The process adopted by the board in the Barnett case was badly flawed and it was not
surprising that the court found the director had been denied procedural fairness. Barnett had
no notice of the proposed resolution and did not have the opportunity to review beforehand
the report of the CAO which provided an overview of the difficulties staff had apparently
encountered with Barnett. The report had been prepared on the instructions of the chair and
vice-chair of the regional district. Again, Barnett had no indication the report had been
requested. The court found that the report was vague, lacking any details of specific conduct or
the identities of staff that had complained. General references to “harassment” and
“intimidation” were insufficient to “permit a reasoned and structured response.” In addition to
CONTROLLING COUNCILLOR CONDUCT
YOUNG ANDERSON
3
the lack of notice of the precise nature of the alleged misconduct, the court was also critical of
the lack of any process having been developed to permit a meaningful discussion of the alleged
misconduct.
In the Skakun case no complaint of substance was made that the councillor was not given
adequate notice of the proposed action or the basis upon which council proposed to act. The
contentious point on the fairness of the proposed censure and sanction process was whether
Coun. Skakun had the right to call witnesses before council. The proposed witnesses were the
persons whose complaints of harassment had been considered by the independent
investigator, whose report had been leaked to the media by the councillor in breach of the FOI
Act. Justice Crawford declined to make an order that council hear the witnesses. He noted that
the complainants had filed affidavits, including transcripts of their evidence in the Provincial
Court prosecution. The judge considered it would be adequate if council had this material
before it for the hearing on the censure motion. The judge offered suggestions as to the
process for council receiving submissions, for deliberating on the motion and on outlining its
reasons. As long as the basic requirements of procedural fairness were observed, the judge
considered he could not tell council how to proceed with the matter. The decision in the
Skakun case shows that a strictly regimented process is not required and that some latitude will
be afforded to the judgment of council as to how it conducts its own process, provided the
basic requirements of notice of the alleged misconduct and an opportunity to respond have
been met.
Justice Crawford sounded one important note of caution on the right of an elected council to
take action regarding a council member’s misconduct. The power to decide whether a council
member’s conduct falls below the expected standard of conduct must be exercised with great
care and discretion:
“Far too easily, this could turn into an abuse of process for cheap political
gain, and any council that sets out in this direction must be careful in what it
is doing.”
He went on to find that there was no suggestion of that in the case before him.
C. Statutory Regulation of Council Member Conduct
Before addressing the subject of codes of conduct, it is worth acknowledging that the
Community Charter has expanded the scope of the rules governing councillor conduct beyond
the long-standing rules proscribing pecuniary conflict of interest, which had as their focus the
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participation of council members in the formal voting and debate processes of council. The
expanded rules are found within both Division 6 – Conflict of Interest in Part 4 and Division 1 –
Council Roles and Responsibilities in Part 5. A brief summary of these provisions is as follows:
“Restrictions on accepting gifts
105 (1) A council member must not, directly or indirectly, accept a fee, gift
or personal benefit that is connected with the member's performance of the
duties of office.
(2) Subsection (1) does not apply to
(a) a gift or personal benefit that is received as an incident of the protocol
or social obligations that normally accompany the responsibilities of
office,
(b) compensation authorized by law, or
(c) a lawful contribution made to a member who is a candidate for
election to a local government.
(3) A person who contravenes this section is disqualified from holding an
office described in, and for the period established by, section 110 (2), unless
the contravention was done inadvertently or because of an error in
judgment made in good faith.
Disclosure of gifts
106 (1) This section applies if
(a) a council member receives a gift or personal benefit referred to in
section 105 (2) (a) that exceeds $250 in value, or
(b) the total value of such gifts and benefits, received directly or indirectly
from one source in any 12 month period, exceeds $250.
(2) In the circumstances described in subsection (1), the council member
must file with the corporate officer, as soon as reasonably practicable, a
disclosure statement indicating
(a) the nature of the gift or benefit,
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(b) its source, including, if it is from a corporation, the full names and
addresses of at least 2 individuals who are directors of the corporation,
(c) when it was received, and
(d) the circumstances under which it was given and accepted.
(3) A person who contravenes this section is disqualified from holding an
office described in, and for the period established by, section 110 (2), unless
the contravention was done inadvertently or because of an error in
judgment made in good faith.
Disclosure of contracts with council members and former council members
107 (1) If a municipality enters into a contract in which
(a) a council member, or
(b) a person who was a council member at any time during the previous 6
months,
has a direct or indirect pecuniary interest, this must be reported as soon as
reasonably practicable at a council meeting that is open to the public.
(2) In addition to the obligation under section 100 [disclosure of conflict], a
council member or former council member must advise the corporate
officer, as soon as reasonably practicable, of any contracts that must be
reported under subsection (1) in relation to that person.
(3) A person who contravenes subsection (2) is disqualified from holding
an office described in, and for the period established by, section 110 (2),
unless the contravention was done inadvertently or because of an error in
judgment made in good faith.
Restrictions on use of insider information
108 (1) A council member or former council member must not use
information or a record that
(a) was obtained in the performance of the member's office, and
(b) is not available to the general public,
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for the purpose of gaining or furthering a direct or indirect pecuniary
interest of the council member or former council member.
(2) A person who contravenes this section is disqualified from holding an
office described in, and for the period established by, section 110 (2), unless
the contravention was done inadvertently or because of an error in
judgment made in good faith.
Court order for person to give up financial gain
109 (1) If a council member or former council member has
(a) contravened this Division, and
(b) realized financial gain in relation to that contravention,
the municipality or an elector may apply to the Supreme Court for an order
under this section.
(2) Within 7 days after the petition commencing an application under this
section is filed, it must be served on
(a) the council member or former council member, and
(b) in the case of an application brought by an elector, the municipality.
(3) On an application under this section, the Supreme Court may order the
council member or former council member to pay to the municipality an
amount equal to all or part of the person's financial gain as specified by the
court.
(4) In the case of an application made by an elector, if the court makes an
order under subsection (3), the municipality must promptly pay the elector's
costs within the meaning of the Supreme Court Civil Rules.
(5) The court may order that costs to be paid under subsection (4) may be
recovered by the municipality from any other person as directed by the
court in the same manner as a judgment of the Supreme Court.
(6) Except as provided in subsection (4), the costs of an application are in
the discretion of the court.”
The common element in each of the foregoing provisions is that they relate to a pecuniary
benefit, as with gifts, or they have application only where a pecuniary interest of the council
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member is found to be present. The penalty for contravening any of these provisions is
disqualification. For a breach of the confidentiality requirements in Part 5 there are financial
consequences, but not disqualification from office:
“Duty to respect confidentiality
117 (1) A council member or former council member must, unless
specifically authorized otherwise by council,
(a) keep in confidence any record held in confidence by the municipality,
until the record is released to the public as lawfully authorized or
required, and
(b) keep in confidence information considered in any part of a council
meeting or council committee meeting that was lawfully closed to the
public, until the council or committee discusses the information at a
meeting that is open to the public or releases the information to the
public.
(2) If the municipality suffers loss or damage because a person
contravenes subsection (1) and the contravention was not inadvertent,
the municipality may recover damages from the person for the loss or
damage.”
D. Codes of Conduct and Mayor Rob Ford
Unlike British Columbia, the municipal legislation in Ontario provides for the adoption of codes
of conduct governing elected council members. For Toronto its enabling statute, The City of
Toronto Act, requires that the City establish codes of conduct for members of city council and
members of local boards. In addition the City must appoint an Integrity Commissioner, to
which council may assign “functions” relating to the application of the code of conduct and may
exercise certain powers available under the Pubic Inquiries Act. The most significant function of
the Integrity Commissioner is to investigate and report on alleged conduct code breaches. The
Commissioner may conduct an inquiry and may draw on the powers to summon witnesses and
documents found in the Public Inquiries Act. Where the Commissioner reports that, in his or
her opinion, a council member has contravened the code of conduct, council may impose either
of two penalties:
▪ a reprimand; or
▪ a suspension of the member’s remuneration for a period of up to 90 days.
It is perquisite to imposition of a penalty that the Commissioner has reported to council that a
member has breached the code. In other words, council cannot act to impose a penalty on a
council colleague without the benefit of a commissioner’s report of a breach.
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The Municipal Act makes similar provision for all other municipalities in Ontario in respect of
codes and conduct and the appointment of integrity commissioners, except that the adoption
of a code and appointment of a commissioner is not mandatory, but rather at the discretion of
the municipality.
It was the alleged breach of the City of Toronto’s code of conduct that was at the root of the
proceedings that led to the initial disqualification of Mayor Ford by an Ontario Superior Court
justice, whose decision was overturned earlier this year by the Ontario Divisional Court; Magder
v. Ford, 2013 ONSC 263. Toronto’s Integrity Commissioner had found that the mayor had
breached several provisions of the code by using the city’s logo, his status as a councillor and
city resources in soliciting funds for his private football foundation. Although no funds had
been received by the mayor personally (all having gone for the purchase of football equipment
by a separate community foundation), the Integrity Commissioner recommended that Ford
reimburse the $3,150.00 in donations made by a lobbyist and corporate donors. Her report and
recommended sanction were approved initially without debate. Ford ignored correspondence
from the commissioner urging him to reimburse the donors and the commissioner
subsequently recommended to council that Ford provide evidence of repayment by a specified
date. Ford participated in the council debate on whether to accept the commissioner’s
deadline for repayment and in the later vote to rescind council’s earlier resolution to adopt the
commissioner’s report and recommendation. His debate participation and vote led to the
application that he be disqualified from holding office for breach of the Municipal Conflict of
Interest Act. The allegation was that the recommendation to repay the donor contributions
engaged the mayor’s pecuniary interest.
On appeal, the Divisional Court justices found the lower court erred in determining that Ford
had a pecuniary interest in the resolution to accept the Integrity Commissioner’s
recommendation that he be required to report on his compliance with the resolution requiring
reimbursement of the donors. No further sanction was recommended; the financial sanction
having already been imposed, no pecuniary interest was engaged. However, the Divisional
Court agreed that Ford had a pecuniary interest in the motion to rescind the previous council
resolution accepting the commissioner’s repayment recommendation. That led the court to
consider the further issue of the validity of the earlier resolution.
As noted above, the City of Toronto Act and Ontario Municipal Act provide for the imposition of
one of two penalties in the case of a code of conduct contravention. The City of Toronto’s code
of conduct provided that council could take one of five “other actions” in the event of a code of
conduct breach, including “repayment or reimbursement of monies received.” The court
accepted that a generous reading of the City’s power to pass a code of conduct would support
the inclusion of remedial measures in addition to penalties. A request for an apology (one of
the five “other actions” in the code) was considered to be remedial in nature. However,
disagreeing with the lower court judge, the Divisional Court held the repayment requirement in
Ford’s case could not be construed as a remedial measure that was distinctly different in
character from a penalty.
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While the Supreme Court of Canada has adopted a benevolent approach to the interpretation
of municipal regulatory powers, it had also noted that in the interaction of general enabling
powers with more specific powers, “when general powers have been provided for, the general
power should not be used to extend the clear scope of the specific provisions.” The Legislature
had set out two penalties in the enabling statute for contraventions of a code of conduct. It
was not appropriate therefore to draw on other general powers to attempt to support the
inclusion of other sanctions or penalties in Toronto’s conduct code.
With the finding that the repayment sanction was a nullity it followed that Ford did not have a
pecuniary interest in the matter when voting on the resolution to rescind the repayment
requirement. The court set aside the order disqualifying him from office.
E. Toronto Code of Conduct provisions
The Ontario Municipal Conflict of Interest Act is by and large limited to the prohibition of the
classic direct and indirect pecuniary interests that could influence councillors in debating and
voting matters at council. It leaves to the judgment of individual local governments whether or
not to deal with the additional matters addressed by BC’s Community Charter. Taking the
Toronto Code of Conduct as representative for comparative purposes, the following table sets
out the matters in Toronto’s code, whether our Legislature has dealt with the subject, and the
comparable Community Charter provision where it has.
Toronto Code of Conduct Community Charter comparable provision
Gifts or benefits – receipt and disclosure Sections 105, 106
Confidential information Sections 108, 117
Use of City property, services and other
resources
No equivalent
Election campaign work - follow provisions of
Municipal Elections Act and no use of City
facilities, resources
No CC equivalent – but stringent campaign
financing provisions in Local Government Act
Improper use of influence Section 102 – inside influence
Section 103 – outside influence
Business relations – councillor not to act as
paid agent before Council
Section 100 – basic pecuniary conflict
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Toronto Code of Conduct Community Charter comparable provision
Conduct regarding current & prospective
employment affecting performance of City
duties
No equivalent – but could be pecuniary
conflict
Conduct at council and committee meetings –
with decorum
No equivalent
Conduct respecting staff – respect role of staff
and be respectful
No equivalent
Conduct respecting lobbyists No equivalent
Discreditable conduct – no bullying,
intimidation, discrimination or harassment
No equivalent
In respect of the last noted provision of the Toronto Code dealing with discreditable conduct,
while there is no equivalent legislative proscription, recall that in Barnett the various
complaints included harassment and intimidation. Although the board’s resolution was set
aside for lack of procedural fairness, Justice McKinnon affirmed the power of the board to deal
with such misconduct. Thus the absence of a code of conduct does not leave BC local
governments powerless to address the improper actions of councillors or directors.
F. Codes of Conduct in British Columbia – Pros and Cons
On the assumption that the Code of Conduct for Canada’s largest city represents a reasonable
guide on subject content for designing a councillor code of conduct, we can consider whether
there are potential benefits of attempting to implement a similar code of conduct for a BC local
government and the extent to which a code may be superfluous to existing legislative
requirements.
1. Issue Coverage
There is a greater impetus for Ontario municipalities to adopt codes of conduct given that the
Ontario Municipal Act and Municipal Conflict of Interest Act do not address the matters of
improper influence, gifts and benefits and misuse of insider information. Once it is recognized
that the Community Charter provides a mechanism to deal with these issues, the question
arises what would be the point of covering the same ground in a code of conduct? Perhaps
including a more detailed commentary with examples or scenarios in which a councillor might
be found to exercise improper inside or outside influence might be useful. Beyond that it is
questionable what further benefit for the good governance of the local government would
come from basically replicating the proscriptions in the Community Charter in a municipal
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conduct code. Apart from the matters already covered in the Community Charter, does council
perceive a need, through a code of conduct, to remind members that they should not attempt
to issue directions to, nor berate or intimidate staff?
2. Validity
As seen from the Barnett and Skakun decisions, the power to address councillor misconduct is
not founded on an express power, but on the implication of a power in order to fill what would
otherwise be a gap in the legislation as a matter of council controlling its internal procedures;
per McKinnon J. in Barnett. However, the Ontario Divisional Court decision in Magder shows
that where a specific power already exists a court will be wary of interpreting a general power
(including, as here, one that arises by implication) that extend its scope beyond the matters
provided for in the specific power. In this context, a court would likely be reluctant to permit a
BC local government to create a parallel process for addressing improper influence, acceptance
of gifts and benefits or the use of insider information resulting in personal gain.
In respect of the breach of the s. 117 duty to maintain confidence over confidential records, the
Community Charter does not provide for disqualification from office; rather a right to recover
any loss or damage arising from improper disclosure is given by s. 117(2). Justice Crawford in
Skakun noted that the councillor’s admitted disclosure of the investigator’s report amounted to
a breach of s. 117, an appropriate basis for the proposed resolution of censure and sanction.
Accordingly, there is no need for a local government to incorporate a requirement to uphold
the confidentiality of records in a code of conduct, although duplication alone may not give rise
to as strong an argument of invalidity where the legislation does not offer such a strong
sanction as disqualification.
3. Procedure
Barnett reminds us of the challenge in ensuring fairness in any process dealing with the conduct
of elected officials. The importance of the decision to the affected individual is one of the five
factors that determine the content of the duty of procedural fairness in a particular case. Even
a motion of censure, without more, may be seen as serious, as it may diminish the reputation
of the councillor and potentially affect their electability in the future. Thus even at the lower
end of the scale of consequences a local government should afford a council member
procedural fairness when determining if there has been misconduct.
The Ontario model’s reliance on an independent integrity commissioner to investigate and
report on conduct code breaches has the benefit of separating council from parts of the process
that can produce procedural fairness challenges. The concern that will lurk in the back of many
judge’s minds (alluded to by Justice Crawford in Skakun) that council not abuse the process for
cheap political gain is met to some extent in Ontario by the requirement that the integrity
commissioner must first report that the member has contravened the conduct code before
council is able to impose one of the prescribed penalties.
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While not mandated by the Community Charter, it is open to a municipal council to employ an
outside investigator to inquire into and report on an alleged code of conduct violation.
Workplace investigators are experienced in ensuring that they carry out a process that is
procedurally fair. They cannot compel individuals to participate and submit to questioning.
Another option is the appointment of a special committee under s. 142 (which must include
one member of council) to inquire into the matter and report its findings and opinion to
council. Such a committee has the power (under the mayor’s signature) to summon witnesses
to be examined under oath. We know of one municipality that commenced a committee
process to deal with allegations of harassment against a council member but abandoned the
process in favour of mediation.
For the matters that are dealt with in sections 105 – 108 of the Community Charter procedural
fairness risks are substantially lower. Council may, on a two/thirds majority, apply to the
Supreme Court for a determination that the member has breached one of those provisions.
Essentially any concerns respecting the fairness of the process become the responsibility of the
court.
The factual circumstances may vary widely and not all complaints may require the more
elaborate process of an investigation and report. Skakun is one such example where the RCMP
had conducted the investigation and the prosecution had ended in a conviction. Council could
proceed on the basis of the outcome in Provincial Court establishing misconduct and a breach
of s. 117.
At the point in the process where council may determine if the actions of the council member
have breached a code of conduct and some sanction is being considered, the Community
Charter has one significant advantage over the Ontario model as demonstrated in Magder.
Mayor Ford argued that despite any apparent breach of the conflict of interest legislation he
was entitled, as a matter of procedural fairness, to participate in the discussion and to vote on
any resolution requiring him to repay any donations. However, if the integrity commissioner’s
report recommends a financial sanction, that creates a pecuniary conflict. Procedural fairness
considerations had to give way to the clear effect of the statute. The court concluded that it
was for the legislature to address the matter by creating an exception in the conflict legislation
to give a council member the right to make submissions before council imposed a financial
penalty.
The Community Charter, on the other hand, provides in s. 104(2) that where a council member
would have a legal right to be heard in respect of a matter or to make representations to
council, and cannot do so as a result of the Charter’s conflict of interest provisions, the member
may appoint another person to represent the member’s interests. That begs the question of
whether the member’s pecuniary interests would be engaged through any proposed action by
council.
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4. Remedy and Sanctions
The decision in Magder had the effect of limiting the available penalty to those provided in the
enabling legislation, either the City of Toronto Act or the Municipal Act, one of which is
suspension of the member’s remuneration for a period up to 90 days. There is no comparable
power authority in either the Community Charter or the LGA, and none could be implied.
One remedy available to BC councils or boards on a finding of misconduct is a motion of
censure. The purpose of such a motion is to draw attention to the conduct and to formally
express council’s disapproval. Council denouncing the conduct serves to disassociate the other
members from the offending member’s conduct. Presumably the process of bringing a
spotlight on the offence may induce the member not to repeat the conduct. The Ontario
legislation provides for a reprimand as the other penalty. The distinction between a censure
motion and a reprimand is elusive. While the courts in BC will be extremely reluctant to imply a
power to levy penalties, they will likely emphasize the remedial nature of a censure motion if
the argument is made that council lacks power to censure because it amounts to a penalty.
The power to impose restrictions on councillor access or communications to staff as remedy to
address harassment or intimidation of staff found support in Barnett, again, in the absence of
an express power, but as a matter of the board controlling its internal process.
The Community Charter is significantly more robust in its treatment of contraventions of
improper influence, wrongful receipt of gifts and benefits and disclosure of confidential benefit.
The remedy is disqualification from office, except that in the case of use of insider information
it is necessary that the purpose of using the information was to gain or further a pecuniary
interest of the member. A member may still be required to compensate the local government
for any loss or damage occasioned by the disclosure of confidential information, irrespective of
whether the purpose was to advance the member’s pecuniary interests.
Beyond the more common forms of remedies and penalties, the additional services that could
be provided through an Ontario style integrity commissioner are worth considering. In
addition to the role of investigating and reporting on conduct code breaches, Ontario integrity
commissioners may provide pro-active advice to council members, effectively acting as a
confidential counsellor, as well as providing seminars for elected officials and staff. This
outreach function is seen as being potentially more effective than the complaints function of
the position [see: “Updating the Ethical Infrastructure” (2011) Report of the Mississauga Judicial
Inquiry, The Honourable J. Douglas Cunningham].
II. FINAL THOUGHTS
The real benefits of introducing a municipal code of conduct are less likely to be found in the
exhortations to appropriate conduct that have likely already been provided in the form of
newly elected seminars or other learning opportunities for council members. Instead,
legislative amendments to provide a statutory foundation for the role of an integrity
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commissioner, similar to Ontario, would be improvement over the ad hoc procedures that local
governments must craft in responding to allegations of councillor misconduct. Additionally,
there is a good case for legislative reform to allow council to impose limited penalties, including
docking a council member’s pay similar to Ontario.
The recent report of the Mississauga Judicial Inquiry Commissioner recommended adopting a
range of lesser sanctions less apart from disqualification for breaches of the Municipal Conflict
of Interest Act. In addition, he was supportive of the range of sanctions provided for in the
Mississauga Code of Conduct which mirror those of the Toronto Code, the validity of some of
which were questioned in Magder. The Community Charter treats the subjects of improper
influence and misuse of insider information for personal gain with the requisite seriousness for
corrupt conduct; that is with disqualification from office. Those matters should continue to be
adjudicated by judges, not by a council member’s colleagues. It would be a retrograde
development to introduce greater flexibility in sanctions, as in Ontario, for those serious
contraventions. A code of conduct may prove a useful tool for dealing with some incidents of
councillor misconduct, but not for conduct already subject to serious sanction in the
Community Charter.
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NOTES
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NOTES
DEFAMATION: WHAT ARE YOUR RIGHTS?
NOVEMBER 28, 2014
Sukhbir Manhas
DEFAMATION: WHAT ARE YOUR RIGHTS? 1
DEFAMATION: WHAT ARE YOUR RIGHTS?
I. INTRODUCTION
Unlike the officers and employees of a private corporation, as an officer or employee of a local
government, you are often in the public spotlight. Being in the spotlight can often be difficult
as it exposes you to significant public scrutiny. You are, in many ways, seen as the face of the
local government, and the public views you as being responsible for the decisions of the local
government. Indeed, in some cases, the public views you as making those decisions. This
public perception can sometimes be positive and rewarding. At other times, especially, for
example, in the months immediately before and after an election or when your local
government is considering controversial issues around land use planning, this public perception
can be negative and feel like a personal attack.
At times, the difficulties associated with being in the public spotlight will engage the law of
defamation; either through an allegation against you that you have defamed a member of the
public or through an allegation by you that a member of the public has defamed you.
In this paper, we will discuss the basic principles of the law of defamation, and discuss the
issues that law raises for you as a local government officer or employee.
II. THE LAW OF DEFAMATION: THE BASIC PRINICIPLES
To be successful in a defamation claim, the individual alleging that he/she was defamed must
prove that the words, either spoken or written, were defamatory, in the sense that they would
tend to lower his/her reputation in the eyes of a reasonable person, that the defamatory words
referred to him/her, and that the defamatory words were published to at least one person
other than the individual alleging that he/she was defamed.
While proving the latter two requirements for a successful defamation claim can be relatively
straightforward, proving the first requirement for a successful defamation claim can be more
difficult.
Proving that words, either spoken or written, were defamatory can be based on the plain and
ordinary meaning of the words themselves or by virtue of external facts or circumstances,
known to the person to whom the words were published, which give the words a defamatory
meaning, by way of innuendo, different from that in which they would ordinarily be
understood.
While the courts have said that there is a low threshold for establishing defamation at first
instance, the courts have cautioned that, before defamation can be made out, there must be a
realistic threat that the words, in their full context, would reduce a reasonable person’s opinion
of the individual alleging that he/she was defamed. In this regard, the courts have recognized
that the full context not only includes the circumstances in which the words were published but
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DEFAMATION: WHAT ARE YOUR RIGHTS? 2
also the character of the person who published the words. For example, where words
published in the context of a heated political debate are, for effect, very unflattering of the
individual who alleges that he/she was defamed, and the persons to whom the words were
published recognize this context, the courts will find that the words would not reduce a
reasonable person’s opinion of the individual alleging that he/she was defamed. Moreover,
where the character of the person publishing the very unflattering words is questionable, the
courts will again find that the words would not reduce a reasonable person’s opinion of the
individual alleging that he/she was defamed.
Once defamation has been established at first instance, the burden then shifts to the person
who published the defamatory words to establish a defence in order to escape liability.
A defence commonly raised in the context of defamation claims relating to local government
officers and employees is that of qualified privilege. Qualified privilege applies where the
person who published the defamatory words had an interest or a duty (legal, social or moral) to
publish them, and there was a corresponding duty or interest of the person to whom the
defamatory words were published to receive them. The privilege attaches to the “occasion”
upon which the publication was made, and not to the publication itself, and is intended to serve
the interests of society generally, and not the interests of particular individuals or a class. It is
not enough for the person who published the defamatory words to believe that the interest or
duty existed. Rather, it is a question of law for the courts to determine whether the
circumstances warrant a finding that the publication of the defamatory words was so
protected. The defence is lost if the dominant motive of the person publishing the defamatory
words was malice or if the limits of the duty or interest were exceeded. The latter circumstance
can arise where the person publishing the defamatory words includes anything that is not
relevant or pertinent to the occasion or where the manner and extent of the publication was
excessive.
III. DEFAMATION CLAIMS AGAINST YOU
A. Personal Liability
Generally speaking, under section 287(2) of the Local Government Act, local government
officers and employees are not liable for damages, and cannot be sued in their personal
capacity, for anything said or done or omitted to be said or done by them, or for any alleged
neglect or default by them, in the performance or intended performance of their duty or the
exercise of their powers. However, their local governments are vicariously liable for damages
that the officers and employees cause.
The most commonly spoken of exception to the immunity from personal liability for local
government officers and employees is where the officer or employee has been guilty of
dishonesty, gross negligence or malicious or wilful misconduct. While this exception is an
important one, it is one that, in our experience, has rarely been invoked by the courts.
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DEFAMATION: WHAT ARE YOUR RIGHTS? 3
The second exception to the immunity from personal liability for local government officers and
employees is in relation to claims in libel or slander (i.e., defamation claims). The importance of
this exception is that it exposes a local government officer or employee to personal liability.
While the local government may still be vicariously liable for damages that the officer or
employee causes, the individual who was defamed may choose only to sue only the officer or
employee, and not the local government, and may choose to enforce any judgment that the
individual is awarded against only the officer or employee, and not the local government. The
likelihood of this exception being invoked by the courts is much greater than the courts
invoking the exception from personal liability where the officer or employee has been guilty of
dishonesty, gross negligence or malicious or wilful misconduct.
B. Indemnification
In light of the exposure of local government officers and employees to personal liability for
defamation, the question of indemnification in regards to such claims is of great significance to
local government officers and employees.
The indemnification of local government officers and employees is addressed by section 287.2
of the Local Government Act, which provides as follows:
Indemnification against proceedings
287.2 (1) In this section:
"indemnification" means the payment of amounts required or incurred
(a) to defend an action or prosecution brought against a person in
connection with the exercise or intended exercise of the person's powers or
the performance or intended performance of the person's duties or
functions,
(b) to satisfy a judgment, award or penalty imposed in an action or
prosecution referred to in paragraph (a), or
(c) in relation to an inquiry under the Public Inquiry Act, or to another
proceeding, that involves the administration of the municipality or the
conduct of municipal business;
"municipal official" means
(a) a current or former council member,
(b) a current or former municipal officer or employee, or
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DEFAMATION: WHAT ARE YOUR RIGHTS? 4
(c) a person who is or was a person referred to in section 287 (1) [immunity
for individual municipal public officers], but only in relation to the exercise of
powers or the performance of duties or functions for or on behalf of a
municipality.
(2) A council may do the following:
(a) by bylaw, provide for the indemnification of municipal officials in
accordance with the bylaw;
(b) by resolution in a specific case, indemnify a municipal official.
(3) As a limit on indemnification under subsection (2), a council must not pay
a fine that is imposed as a result of a municipal official's conviction for an
offence that is not a strict or absolute liability offence. …
Under this section, a local government has the authority to indemnify its officers and
employees in respect of the costs of defending a lawsuit based in defamation brought against
them, and in respect of any judgment made against them out of such a lawsuit. However, this
authority to indemnify is only available where the alleged defamatory statements made by the
officers or employees were made in connection with the exercise or intended exercise of the
powers of the officers or employees or the performance or intended performance of their
duties or functions.
In order for the local government to exercise its authority to indemnify its officers and
employees in respect of the costs of defending a lawsuit based in defamation brought against
an officer or employee, and in respect of any judgment made against the officer or employee
out of such a lawsuit, the local government must have adopted a sufficiently broad
indemnification bylaw under section 287.2(2)(a) of the Local Government Act in advance of the
lawsuit having been commenced or must pass a resolution under section 287.2(2)(b) of the Act
to indemnify the officer or employee in relation to the specific lawsuit. In the latter case, on
the issue of defence costs, the indemnification resolution should expressly provide that the
officer or employee is to be indemnified both in respect of the costs to be incurred by the
officer or employee moving forward but also in respect of any costs incurred by the officer or
employee to the point in time that the resolution was passed.
C. The Availability of the Defence of Qualified Privilege
As discussed earlier, the defence of qualified privilege applies when the individual who
publishes words, albeit defamatory, has a legal, social, or moral duty to publish the words, and
the person to whom the words are published has an interest or duty to receive them.
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DEFAMATION: WHAT ARE YOUR RIGHTS? 5
Meetings of local government elected officials are generally occasions to which the defence of
qualified privilege would be available. As such, words published by those elected officials in
such meetings are generally protected from liability. In Prud’homme v. Prud’homme, the
Supreme Court of Canada described it this way:
The English and Canadian courts, however, have held that words spoken at a
meeting of a municipal council are protected by qualified privilege (J. P.
S. McLaren, “The Defamation Action and Municipal Politics” (1980), 29
U.N.B.L.J. 123, at pp. 134-35). Accordingly, the fact that words spoken at a
meeting are defamatory does not, in itself, mean that a municipal councillor
will be liable therefor. In order to succeed in his or her action, the plaintiff
must prove malicious intent or intent to harm on the part of the councillor
(Brown, supra, at p. 13-4). The reason for that qualified privilege was
eloquently stated by Diplock L.J. in Horrocks v. Lowe, [1975] A.C. 135 (H.L.),
at p. 152:
My Lords, what is said by members of a local council at
meetings of the council or of any of its committees is
spoken on a privileged occasion. The reason for the
privilege is that those who represent the local government
electors should be able to speak freely and frankly, boldly
and bluntly, on any matter which they believe affects the
interests or welfare of the inhabitants. They may be
swayed by a strong political prejudice, they may be
obstinate and pig-headed, stupid and obtuse; but they
were chosen by the electors to speak their minds on
matters of local concern and so long as they do so honestly
they run no risk of liability for defamation of those who
are the subjects of their criticism.
The defence of qualified privilege is not reserved exclusively to elected
municipal officials. It applies whenever a person who makes a
communication has an interest or a duty, legal, social or moral, to make it to
another person who has a corresponding interest or duty to receive it
(Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334, approved by this Court in
McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, at p. 321; Hill, supra, at
paras. 143-46; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R.
3, at paras. 78-81). This will be the case, for example, where an employer or
professor provides references about his or her employee or student, or
where a journalist publishes defamatory information in the public interest
that he or she honestly believes to be true.
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DEFAMATION: WHAT ARE YOUR RIGHTS? 6
Given the public duties and powers of local government officers and employees, it is likely that
the defence of qualified privilege would be extended by the courts to apply to the published
words of those officers and employees, even where those words are defamatory.
D. Responses to a Defamation Claim
In considering how to respond to a defamation claim brought against you as a local government
officer or employee, you are acting in two capacities. You are acting in your personal capacity
and in protection of your personal interest; the lawsuit having been brought against you
personally. You are also acting in your professional capacity and in protection of the public
interest; your local government likely indemnifying you for the significant cost of defending the
lawsuit and for any judgment made by a court against you, and likely being vicariously liable for
your actions.
In these circumstances, it is important that you take a step back and thoroughly consider the
implications of vigorously defending the lawsuit, or issuing an apology in respect of the
allegedly defamatory words published by you. On the one hand, vigorously defending the
lawsuit will likely be costly, and it will likely take some time for the matter to be resolved by the
courts. On the other hand, you may strongly believe in the words published by you and find it
difficult to apologize in the circumstances.
The decision on how to respond to a defamation claim brought against you as a local
government officer or employee will largely depend on the context. One matter that you
should pay particular attention to in considering how to respond is your personal state of mind
at the time that the allegedly defamatory words were published by you. Were the words
published in the heat of the moment or were they thought out in advance? Do you have any
second thoughts about the specific words published by you (as opposed to the message that
you intended to deliver)? If the answer to any of these questions is yes, you may want to
seriously consider an apology or at least an explanation of the published words to minimize
their impact on the individual who has alleged that you defamed him/her.
IV. DEFAMATION CLAIMS BY YOU
A. Were You Defamed?
Unfortunately, there is little doubt that, at some point in your career as a local government
officer or employee, you will find yourself at the centre of a controversy in your local
government. Whether it is part of a pre or post election campaign, or part of a controversial
land use decision, one or more members of the public will take aim at you. In doing so, those
members of the public will likely have little regard for your feelings, and it may very well seem
to you that these members of the public have embarked on a personal attack on your character
and reputation.
When considering how to respond to these perceived personal attacks on your character and
reputation, you must first determine whether you have, in fact, been defamed. Has your
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DEFAMATION: WHAT ARE YOUR RIGHTS? 7
reputation been lowered in the eyes of a reasonable person. There are a number of
considerations that you should take into account in determining this. Generally, these
considerations relate to the context in which the personal attacks are taking place.
First, you must look at the nature of the circumstances surrounding the perceived personal
attack on your character and reputation. For the most part, these attacks will be centred
around matters that are politically charged. Unfortunately, in the exercise of your day-to-day
duties and powers, you are surrounded by politics. In that context, you must ask yourself
whether these attacks are truly personal, or are politically motivated. Are you simply a casualty
of politics? If the attacks are clearly politically motivated, then the impact of the attacks on
your character and reputation will be minimized; a reasonable person will see the attacks for
what they are, political statements as opposed to statements personal to you.
Second, you must look to the character of the members of the public involved in the perceived
personal attack. For the most part, such attacks will be by members of the public who are on
the fringe of your local government’s community. In that context, you must ask yourself
whether the attack could have any impact on a reasonable person’s view of your character and
reputation. If the attack is from a member of the public whose character is suspect within your
local government’s community, then the impact of the attacks on your character and
reputation will again be minimized.
Third, you must look to your ability to respond to the perceived personal attack. As a local
government officer or employee, you likely already have a developed public profile. Where
that public profile is a positive one, the likelihood of the attack impacting on a reasonable
person’s view of your character and reputation is again minimized. Moreover, you must
consider your relative ability to put the record straight regarding the subject matter of the
attack. If the attack occurs at a meeting of your local government, you have the opportunity to
put the record straight. You may also have access to news media and other outlets to do so.
Where you have ample opportunity to put the record straight, the courts will be hesitant to find
that you were defamed.
B. Responses to Being Defamed
Where you have determined that you have been defamed by a member of the public, your
response should be measured.
First, before responding to having been defamed by a member of the public, consider the
implications of responding at all. In many circumstances, responding to the defamatory
publication will simply have the effect of prolonging the publication of the defamatory material.
You should consider whether the better response to having been defamed is to do nothing, and
allow the issue to extinguish itself, or to respond vigorously, and add fuel to the issue. In this
regard, rather than reacting at the first instance of publication of defamatory words by a
member of the public, it is more often than not prudent to adopt a wait and see approach.
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DEFAMATION: WHAT ARE YOUR RIGHTS? 8
If you have determined that it is necessary to respond to having been defamed, you should, at
first instance, demand an apology and retraction of the defamatory words from the members
of the public that published them. Your demand should be copied to local news media and
other outlets for the purpose of making known to the public that you believe the published
words to be defamatory and that you take offence to them. In this manner, while you may not
receive the apology and retraction that you demand, you will have gone a long way to minimize
the impact of the defamatory words on your character and reputation. In demanding the
apology and retraction, we recommend that you not threaten legal proceedings if the apology
and retraction is not received. Including a threat of legal proceedings if the apology and
retraction is not received will likely only be perceived by the members of the public who
published the defamatory words as being oppressive, and will provide them with further
ammunition on which to prolong the matter and potentially gain broader public support. Of
course, if the apology and retraction is not received, you can resort to legal proceedings even if
you have not threatened in your demand that you will do so.
Where the foregoing has failed, and you believe that you must take further steps to protect
your character and reputation, you should consult legal counsel and, if recommended,
commence a defamation action against the members of the public who published the
defamatory words about you.
C. Funding Your Defamation Claim
If, after taking into account all of the above considerations, you have determined that you must
respond to perceived personal attacks by members of the public on your character and
reputation, and have determined that you will bring a defamation claim against the members of
the public involved in the attacks, you must then determine how you will fund the litigation.
Of course, you have the absolute right to spend your personal resources on pursuing such a
claim.
The real question is whether local governments may fund defamation claims commenced by
their officers and employees. In several decisions of the courts, the courts have contemplated
that defamation claims brought by local government officers and employees may be funded by
their local government employer.
In British Columbia, there is no express authority in the Community Charter or the Local
Government Act that authorizes local governments to fund legal proceedings commenced in
the names of their officers and employees. The authority of local governments to indemnify
their officers and employees being limited to the defence of legal proceedings brought against
the local government’s officers and employees.
However, local governments do have the broad authority to provide benefits and remuneration
for their officers and employees. In the context of this authority, it is reasonable to conclude
that local governments may provide legal funding to their officers and employees to pursue a
claim in defamation as a general or employment benefit.
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DEFAMATION: WHAT ARE YOUR RIGHTS? 9
In saying the foregoing, we recognize that there is a risk that the provision, as a benefit, of legal
funding by a local government to its officers and employees to pursue defamation claims may
be characterized by the courts as an indemnity, which is not within the scope of section 287.2
of the Local Government Act and, as a result, is unlawful. To avoid such a risk, it would be
advisable to take all steps possible to characterize the funding as a benefit, not an indemnity.
For example, consider the following: establishing a cap on the funding; requiring that the officer
or employee repay the funding to the local government from any damages he or she is
awarded; and establishing terms and conditions for eligibility (e.g., that the alleged defamatory
words be about the officer or employee’s professional or job-related reputation, not about the
officer or employee’s “personal” reputation).
We also recognize that there is a risk that the authority to provide, as a benefit, legal funding by
a local government to its officers and employees to pursue defamation claims may be
characterized by the courts as being contrary to the right to freedom of expression under the
Canadian Charter of Rights and Freedoms. It is arguable that, for the very same reasons that
the courts have held that local governments cannot sue in defamation (e.g., that expression
about public affairs in general, and government in particular, lies at the core of freedom of
expression, and the use of public funds to impede such expression is undesirable), the courts
could find that local governments cannot fund the pursuit of defamation claims by their officers
and employees. On balance, we believe that these concerns would be offset by the concern
that requiring the officers and employees of local governments to fund such claims themselves
would have the impact of reducing the availability of qualified individuals willing to take
employment with local governments.
V. CONCLUSION
Having gone through the process of preparing this paper, it reinforced in my mind that the
interaction between local governments and the law of defamation stems inextricably from the
fundamentally political nature of the environment within which local government officers and
employees work. When you chose to work in this environment, you exposed yourself to the
public spotlight, and the significant public scrutiny that spotlight exposes you to.
Unfortunately, it is a part of the job, albeit unwanted and undeserved.
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DEFAMATION: WHAT ARE YOUR RIGHTS? 10
NOTES
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ELECTED OFFICIALS: GAME MISCONDUCT
November 27, 2009
Reece Harding
ELECTED OFFICIALS: GAME MISCONDUCT Page 1
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ELECTED OFFICIALS: GAME MISCONDUCT
I. INTRODUCTION
In the last year or two, there have been a number of interesting court decisions involving the
behaviour of elected officials and their dealings with local government. This paper will explore
these cases in some detail and attempt to provide local government with general legal direction
and some practical tips if ever faced with these scenarios.
II. CENSURE MOTIONS
On occasion, local governments through their Council or Board, consider adopting censure
motions against one of their elected officials for perceived or real misconduct during the course
of their duties. Two of the most common examples are where elected officials either mistreat
local government staff or breach confidences discussed during closed meetings.
There is no specific statutory provision dealing with a local government’s right to censure one of
its own elected officials. However, recent judicial commentary concludes that a local
government’s general powers to control its own process and functions allows it the jurisdiction to
consider punitive censure motions against one of its own elected officials.
In Barnett v. Cariboo Regional District, 2009 B.C.S.C. 471, the court stated:
Thus, I do not accept that the Regional District “has no
jurisdiction” to govern the (mis)conduct of Directors. The weight
of the statutory and judicial authority suggests that a Regional
Board has the ability to determine its own internal procedures,
which surely must include the ability to control misconduct by a
Director.
Thus it would appear that a local government has the jurisdiction to censure its own elected
officials but, as discussed further below, this must be done in accordance with the rules of
procedural fairness.
In Barnett v. Cariboo Regional District, the B.C. Supreme Court struck down a Board resolution
restricting a Director from contacting and communicating with staff. Regional District staff had
been complaining with respect to the abusive nature of this Director’s communications. In an
effort to deal with this, the Board met in closed session to deal with certain confidential matters.
Once these confidential items were concluded, the Board meeting remained closed and copies of
a report regarding this Director’s behaviour were circulated for review. This was the first that
this Director had heard of the report and he was not given the opportunity to see the report in
advance of it being provided during this closed session of the Board. Despite this, the Board
adopted the following resolution at its meeting:
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…that Director Duncan Barnett not have contact or communication
with staff, on a person to person basis, except through e-mail or
written correspondence delivered to the front desk, addressed to
the Chief Administrative Officer or designate. Further, that this
directive be brought forward for review by the Board in a period of
one year.
The primary issue before the Court in this case was whether or not the Director had been
provided appropriate procedural fairness in advance of the Board adopting the above-noted
resolution. After significant discussion, the Court stated as follows:
The fundamental problem with this approach to disciplining the
petitioner is that he was never given any specifics of the
complaints that might permit a reasoned and structured response.
He was never given any opportunity to consult counsel or even any
reasonable opportunity to study and respond to the vague
allegations that upset the sensibilities of CRD staff and others. In
that light, it is difficult to see how the petitioner’s right to be heard
was respected in any sense.
The CRD defends its refusal to be specific on the basis that it
wants to protect its staff from (presumably) harassment from Mr.
Barnett. While this might be a laudable goal in terms of
employee/employer relations, it should not have trumped the
petitioner’s right to a fair hearing.
On the basis of the conclusion that the Board had not treated Director Barnett with appropriate
procedural fairness, the Board’s censure resolution was declared invalid. To add to this, the
Court directed that the Regional District pay what are known as “special costs” to Director
Barnett for its pre-litigation behaviour. The Court had concluded that there was a clear bias
against Mr. Barnett and a complete disregard for any fair process. A special costs award in
essence means that the litigant is entitled to get back their dollar for dollar costs paid to their
lawyer for the handling of the matter.
This case serves to verify that censure motions are within the jurisdiction of a local government
to enact but only after the elected official is provided with procedural fairness in advance of
adopting a censure motion. However, as a result of the Barnett case, local governments would
be well served to seek guidance from their solicitors in advance of considering any type of
censure motion as it relates to an elected official.
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III. ELECTION FRAUD
Section 152(3)(b) of the Local Government Act reads as follow:
152 …
(3) A person must not, by abduction, duress or fraudulent means,
do any of the following:
…
(b) compel, persuade or otherwise cause a person to vote or refrain
from voting;
This provision became the subject of much legal debate in the case of Todd v. Coleridge, 2009
B.C.S.C. 688, where the B.C. Supreme Court considered the validity of the election of a City of
White Rock Councillor for his alleged untruths during the 2008 local government election.
By way of background, Mr. Todd was a unsuccessful candidate for Council in the City of White
Rock election. Mr. Coleridge was a successful candidate for Council. During the election
campaign, Mr. Coleridge’s wife sent an email linking Mr. Todd with a pro-development slate of
candidates for Council using an assumed name. Later, Mr. Coleridge purported to respond to his
wife’s email and an email chain ensued in which Mr. Todd was criticized. Mr. Coleridge’s email
was written as if he was responding to one of his supporters. When asked by the media if he
knew who sent the original email, Mr. Coleridge lied saying he had no idea and when pressed
sketched a picture of a shadowy character nobody had ever met. The media ultimately
discovered that the email had originated from Mr. Coleridge’s home but Mr. Coleridge claimed
he was a victim of identity theft.
In dealing with these factual circumstances and how they were to be interpreted pursuant to s.
152(3)(b) of the Local Government Act, the Court concluded:
Mr. Coleridge agrees that he described himself to the electorate in
his campaign materials as a person someone could come to for
straight answers. During the election, he was endorsed by the
White Rock Citizens for Positive Renewal, which has one of its
goals to “Restore Public Trust.” Mr. Coleridge testified that he did
not think the fact that he lied to and deceived the public about his
participation in the Slate Email would have impacted his
endorsement by the Citizens for Positive Renewal or impacted his
campaign if the matter had come to the surface before the
election…
…
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Mr. Coleridge argues that the question is whether he persuaded or
caused anyone to vote for or to refrain from voting for someone
else by alleging the matters set out in the Slate Email, by using an
assumed name, and later by repeatedly denying it.
However, that is not the question in my view. The question in my
view is whether Mr. Coleridge persuaded or caused anyone to vote
for him by stating that in his campaign material that he was
someone the electorate could come to for a straight answer, i.e.,
that he was someone you could trust. Mr. Coleridge ran on his
reputation that he was a candidate who could be counted on to tell
the public the truth.
…
Mr. Coleridge displayed a willingness to continue to lie and
deceive the public despite being presented with a number of
occasions when he could have told the truth. In my opinion, if a
candidate puts his character in issue and runs on his integrity and
honesty, then his character, including his integrity and honesty, is a
material fact.
The Court concluded that the election of Mr. Coleridge was invalid and that his office was to be
declared vacant. Thus, a by-election for the vacant Councillor’s seat was ordered. To add to the
situation, Mr. Coleridge was ordered to pay $20,000.00 to the City of White Rock to assist
towards the expenses of running the by-election.
This case indicates clearly that if an elected official places his or her integrity into the record as a
material fact, and is later shown to have lied, they may find their election to public office
declared invalid.
IV. CRIMINAL CONDUCT
It often surprises members of the public (and some local government administrators) to be
informed that elected officials who have been convicted of criminal offences, or who are charged
with criminal offences during the term of their office, are not disqualified from their elected
positions. There are no simple statutory provisions which require an elected official to step
down from office on the basis of being charged or convicted of a criminal offence.
Such a situation recently came to pass in the Lower Mainland where Port Coquitlam’s Mayor
was charged and convicted with several criminal offences. This Mayor refused to resign from
his mayoral position despite significant public protest asking him to do so. Ultimately, he was
voted out of office in the 2008 elections.
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It would seem that one available method to remove an elected official convicted of a criminal
charge would be to rely on the provisions of s. 110(1)(b) of the Community Charter wherein the
elected official who is absent for 60 consecutive days or 4 consecutive regularly scheduled
meetings, without excuse, will be disqualified from office. This section reads:
110 (1) A person elected or appointed to office on a council is
disqualified from holding that office if any of the following
applies:
…
(b) the person is absent from council meetings for a period of 60
consecutive days or 4 consecutive regularly scheduled council
meetings, whichever is the longer time period, unless the absence
is because of illness or injury or is with the leave of the council;
Obviously, if an elected official where to be sentenced to jail time in excess of this period of time
they would be disqualified from office. However, other than that circumstance coming to pass,
criminal charges or convictions do not result in automatic disqualification from office.
V. CLOSED MEETING CONFIDENCES
A not infrequent occurrence for local governments is the leaking of sensitive information from
closed meetings of a Council or a Board. It is important to remind our elected officials of the
provisions of s. 117 of the Community Charter which reads:
117 (1) A council member or former council member must, unless
specifically authorized otherwise by council,
(a) keep in confidence any record held in confidence by the
municipality, until the record is released to the public as lawfully
authorized or required, and
(b) keep in confidence information considered in any part of a
council meeting or council committee meeting that was lawfully
closed to the public, until the council or committee discusses the
information at a meeting that is open to the public or releases the
information to the public.
(2) If the municipality suffers loss or damage because a person
contravenes subsection (1) and the contravention was not
inadvertent, the municipality may recover damages from the
person for the loss or damage.
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In addition, s. 30.4 of the Freedom of Information and Protection of Privacy Act provides as
follows:
30.4 An employee, officer or director of a public body or an
employee or associate of a service provider who has access,
whether authorized or unauthorized, to personal information in the
custody or control of a public body, must not disclose that
information except as authorized under this Act.
Although several local governments to the writer’s knowledge have had significant concerns
with respect to these provisions being breached by elected officials, there are very few
circumstances where a breach can be proven.
Interestingly, there is currently a charge making its way through B.C. Provincial Court involving
a City of Prince George Councillor who is facing a fine of up to $2,000.00 for disclosing an in-
camera document containing sensitive personal information contrary to s. 30.4 of the Freedom of
Information and Protection of Privacy Act’s protection of personal privacy provision cited
above.
The Councillor allegedly leaked a document which ended up on the CBC’s website for a brief
period of time. This report summarized a lawyer’s findings with respect to a personal
relationship between a senior member of the RCMP detachment in Prince George and a civilian
City manager working at the detachment. This report, which was properly placed before the City
of Prince George Council pursuant to s. 90 of the Community Charter, was not authorized to be
released to the public given its sensitive content.
This prosecution is a reminder to elected officials, and local government staff, of the seriousness
of their responsibilities and the corporate responsibilities of a local government under both
FOIPPA and the Community Charter with respect to the collection of personal information and
its dissemination.
As can be seen from these charges, the consequences of privacy breaches can be serious with
individuals facing quasi-criminal charges with a maximum fine of up to $2,000.00 while the
local government may be prosecuted to a maximum of $500,000.00.
It is very important to note that the charges against this Councillor have not been proven in Court
and at this time are allegations only.
VI. CONFLICT OF INTEREST
Elected officials faced with a conflict of interest scenario may be faced with two types of
disqualification: disqualification from voting on the particular matter and/or disqualification
from office. The tests for conflict of interest arise from the common law, as do many of the legal
consequences. The Community Charter also contains important provisions prohibiting elected
officials affected by a conflict from participating in discussion and voting.
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The Supreme Court of Canada in Edmonton (City) v. Hawrelak, [1976] 1 S.C.R. 387, described
the elected official’s duty as follows: “No one entrusted with duties of a fiduciary nature may
enter into any transaction in which his personal interest is or may be in conflict with the interest
of his principal.”
The common law recognizes two types of conflict of interest: non-pecuniary private or personal
interest and pecuniary interest.
Non-pecuniary conflicts arise in situations of close personal relationships. The Court will
examine whether there is a reasonable apprehension that the elected official is biased. In short,
would a reasonable person find it likely that the elected official would favour one position or
party over another? For example, in Starr et al. v. City of Calgary (1965), 52 D.L.R. (2d) 726
(Alta. S.C.), two city council members who also sat on the board of directors for the Calgary
Stampede were disqualified from voting on any matter before council that affected the Stampede.
What constitutes a “pecuniary interest”? Based on the cases on this subject, it appears one of the
most frequently alleged situations of pecuniary conflict of interest arises when a matter before
council involves a developer or another party from whom an elected official has accepted
campaign donations. Cases like King v. Nanaimo (City) (2001), 94 B.C.L.R. (3d) 51 (C.A.),
however, suggest that there must be a fairly strong correlation between the matter of the vote and
the elected official’s personal interest, and sufficient evidence showing the campaign
contribution affected the elected official’s vote.
Sections 100 and 101 of the Community Charter have codified common law prohibitions against
situations of pecuniary conflict of interest. Directness of the pecuniary interest in question is not
a relevant consideration. The Community Charter states that an elected official must not
participate in discussions of any matter or vote on a question regarding any matter because the
member has either a direct or indirect pecuniary interest. In fact, elected officials with such a
conflict must make a declaration to this extent (section 100(2)), after which time four
requirements of section 101(2) of the Community Charter must be met:
The member must leave the meeting while the matter is under consideration;
The member must not participate in discussion at all;
The member must not vote on a question in respect of the matter; and
The member must not attempt in any way to influence voting on the matter.
Contravention of one of these four requirements under section 101(2) of the Community Charter
disqualifies that elected official from continuing to hold office unless the contravention was
inadvertent or the result of a good-faith error in judgment (section 101(3) of the Community
Charter). A court would render the vote of an elected official invalid if made in contravention of
these provisions.
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The restrictions on participation in debate and on voting are exempted in the following situations
contained in section 104(1) of the Community Charter:
(a) The pecuniary interest of the council member is a pecuniary interest in common with
the electors of the municipality generally;
(b) In the case of a matter that relates to a local service, the pecuniary interest of the
council member is in common with other persons who are or would be liable for the
local service tax;
(c) The matter relates to the remuneration or expenses payable to one or more council
members in relation to their duties as council member;
(d) The pecuniary interest is so remote or insignificant that it cannot reasonably be
regarded as likely to influence the member in relation to the matter; or
(e) The pecuniary interest is of a nature prescribed by resolution.
If an elected official, by their own participation has either disqualified themselves from office or
refused to step down on a matter where a conflict is clear, s. 111 of the Community Charter
allows ten or more electors, or the local government itself, to apply to the B.C. Supreme Court
for an order under the section. There are certain procedural and timing restrictions to do so.
Generally speaking, the Court will review the circumstances under which the elected official has
participated in matters which may disqualify that elected official and make a declaration as to
whether or not that elected official’s office should declared vacant.
Such a situation was recent considered in Fairbrass v. Hansma, 2009 B.C.S.C. 878, where the
Mayor of Spallumcheen was petitioned by 39 electors claiming that he should be disqualified
from office for a pecuniary interest in some properties owned by his sons for which he had voted
on an OCP amendment which would have allowed for subdivision and upzoning of certain
properties.
In an interesting judgment, the Court concluded that the Mayor did not have an indirect
pecuniary interest and was thus not disqualified from office.
In essence, the petitioners argue that the court must assume that
because he is their father, this mayor must be taken to desire
financial advancement for his sons, and further that because of that
father and son relationship, improvement of the sons’ affairs will
necessarily equate to an improvement of the mayor’s estate.
In my view, the law has not yet come so far as to permit such
inferences to be drawn, at least not without there being some
evidence to support them. None of the authorities upon which the
petitioners rely go that far - they all contain at least some evidence
showing a link between the pecuniary interests of the official and
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the pecuniary interest of the party whose affairs were affected by
the matter under discussion.
The Court made it clear that it was making this conclusion on the basis of a lack of evidence
presented to the Court. In addition, the Court made it clear that the Mayor may have been saved
from disqualification in any event given that he had sought legal advice early in the process and
had a “good-faith” position given that he had relied on that legal advice in continuing to vote on
the OCP amendments.
This case highlights the importance of obtaining independent legal advice for elected officials
where there are allegations of conflict of interest. Local governments may wish to discuss
policies to assist elected officials to access independent legal counsel in this regard. Allowing
access to independent legal counsel for its elected officials may save local governments
significant legal costs, and perhaps avoid costly by-elections, in the event that electors, such as in
the Fairbrass case, bring petitions to disqualify elected officials.
VII. A WORD OF CAUTION
In most of the above-cited examples, elected officials have placed themselves in positions by
their own conduct, or lack of conduct, that led to their disqualification or censure. As such,
when elected officials do misbehave in this regard, the above-noted examples show that there
are, in most cases, statutory provisions or procedural mechanisms in place to deal with that
misconduct.
However, it is important to note that most allegations made against elected officials by members
of the public or others carry little, if any, substance. For example, in Costello v. Hornby Island
Local Trust Committee, 2009 B.C.S.C. 1334, serious allegations were made against two elected
officials. These were completely rebuffed by the Court in clear factual findings. In this regard,
the Court stated as follows:
I agree with the defendants that the claims brought by Ms. Costello
are very serious stigmatizing accusations against the HILTC, the
Islands Trust, the Islands Trust Council, Ms. Griggs and Mr. Law
without any legitimate foundation. The evidence fails to establish
Ms. Costello’s claims for negligence, abuse of public office,
breach of trust, mental distress and punitive damages.
There is no evidence the defendants engaged in deliberate,
unlawful conduct and targeted malice against Ms. Costello or her
property. To the contrary, the defendants attempted to facilitate a
compromise, weighing the interests of all parties in conjunction
with the community interest to preserve and protect community
values, resources, and rural character. The local trustees did their
best to serve their community for minimal compensation but, as
Mr. Law commented, in the highly charged emotional environment
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they could not please everyone; in fact, at the end of the day, they
could not please anyone. However, the end result is that Ms.
Costello’s building is in compliance with the Bylaw and Mr.
Grayson is closer to establishing his winery.
In this regard, all local governments should ensure that they have indemnification bylaws in
place to assist elected officials when they are sued personally. Early and ongoing legal advice in
these scenarios is very important.
VIII. CONCLUSION
Local governments would be well served to consider the following in effort to be prepared for
dealing with elected officials misconduct whether real or alleged.
1. In dealing with elected officials who are abusive to their colleagues or local government
staff, an appropriate procedural response to such behaviour should be laid out well in
advance of it being considered by Council or a Regional Board for censure purposes. For
example, local government staff can, in consultation with their corporate solicitors, draft
a policy (e.g., similar to a business licence suspension or cancellation hearing) that gives
the elected official the opportunity for notice, a response and a hearing before his or her
colleagues before being censured. Drafting a written policy of this nature before such an
incident arises would be prudent.
2. Local government Chief Electoral Officers would be well advised to remind candidates
for local government office of the Court’s reasons in Todd v Coleridge and to remind all
candidates for local government office that violations of election rules may result in their
office being challenged and potentially declared vacant.
3. Local government officials should remind elected officials of the provisions of s. 117 of
the Community Charter and s. 30.4 of FOIPPA and stress to elected officials the
seriousness of the potential civil and quasi-criminal consequences for a breach of these
provisions.
4. Local government officials should provide routine educational opportunities to their
elected officials to understand the conflict of interest provisions in the Community
Charter. There still appears to be a significant misunderstanding by some elected
officials as to the operation of these provisions and the consequences for being in breach
of these provisions.
5. Local governments should seek routine legal advice from their corporate solicitors as to
whether elected officials are in conflict of interest as it may have serious implication on
the local government, both by way of the adoption of important bylaws or resolutions,
and the possibility of an office being declared vacated. In addition, local governments
should provide elected officials with a reasonable opportunity to seek their own
independent legal advice to assist them in understanding whether they are in fact in a
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conflict of interest. It is important both for the elected official, and the local government,
to ensure that the elected official has independent legal advice.
6. In the vast majority of cases, allegations of misconduct made against elected officials are
without foundation. As such, a local government should be prepared to assist its elected
officials in whatever way possible through its indemnification bylaw or an
indemnification resolution to assist them with obtaining adequate legal advice.
FOI UPDATE: A REVIEW OF SOME “INTERESTING” FOI DECISIONS
NOVEMBER 28, 2014
Maria Kim
FOI UPDATE: A REVIEW OF SOME “INTERESTING” FOI DECISIONS
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FOI UPDATE: A REVIEW OF SOME “INTERESTING” FOI DECISIONS
I. INTRODUCTION
Access to information legislation, such as the BC Freedom of Information and Protection of
Privacy Act (FIPPA), serves an important public interest—accountability of government to the
citizenry. But this purpose is tempered by the need to protect privacy and to allow
governments to function and do business in areas where confidentially must be respected. In
receiving and responding to access to information requests, much of the focus for local
governments is on the provisions in Part 2, Division 2 of FIPPA, which set out exceptions to
disclosure where disclosure would be harmful to various affected parties.
The Office of the Information and Privacy Commissioner (OIPC) for British Columbia has issued
many interesting decisions this year, some having major implications for local governments in
processing access to information requests under FIPPA. This paper will discuss recent OIPC
cases that provide guidance on how and when local governments should apply particular
sections of FIPPA, how specific terms in the legislation are interpreted, and how to treat “non-
responsive” information in responsive records. Overall, this paper hopes to further local
governments’ understanding of their responsibilities under various provisions of FIPPA.
II. BROAD DEFINITION OF “POLICY ADVICE” UNDER S. 13
The purpose of s. 13 of FIPPA is understood to prevent harm that would occur if a public body's
deliberative process was exposed to public scrutiny. Section 13(1) provides:
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice or recommendations developed by or
for a public body or a minister.
In BC, the leading cases on s. 13 are College of Physicians and Surgeons v British Columbia
(Information and Privacy Commissioner)1 and more recently, Insurance Corp. of British
Columbia v Automotive Retailers Assn.2 In the ICBC case, the BC Supreme Court considered
whether certain records of communications between ICBC and the federal Competition Bureau
could be protected under s. 13. The records consisted of a long letter marked “confidential”
and a memorandum written by ICBC’s legal counsel to the Competition Bureau, as well as
various correspondences and meeting notes between ICBC and the Competition Bureau. The
OIPC found that disclosure of the records would not reveal advice and recommendations under
s. 13 and ordered ICBC to disclose them.
1 2002 BCCA 665.
2 2013 BCSC 2025.
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The BC Supreme Court stated that the purpose of s. 13(1) is to ensure that a public body may
engage in full and frank deliberations, including requesting and receiving advice, in confidence
and free of disruption from requests from outside parties for disclosure. The deliberative
process includes:
[30] … the investigation and gathering of the facts and information
necessary to the consideration of specific or alternative course of action.
"Advice or recommendations" was intended by the Legislature to include
information the purpose of which is to present background explanations or
analysis for consideration in making a decision, including the opinions of
experts obtained to provide background explanations or analysis necessary
to the deliberative process.
In the Court’s view, the word "advice" must have been intended by the legislature to mean
something other than "recommendations”. The Court found that some of the records were
obviously advice, and the balance comprised of information that was obviously considered
critical to the deliberative process that was assembled by ICBC’s counsel and others. The
records at issue comprised of highly sensitive commercial information integral to the facilitation
of advice and recommendations, which led ICBC to engage in a particular course of action.
Since the records were created by ICBC to allow it to obtain and formulate advice or
recommendations to govern its future conduct, the Court found that they were integral to its
deliberate policy-making process.
The Court concluded that release of the records would defeat the purpose of s. 13, which is to
protect a public body's internal decision and policy making processes from disclosure, thereby
encouraging the frank flow of advice and recommendations and to prevent the harm that
would occur if the deliberative process was subject to excessive scrutiny.
The Supreme Court of Canada recently considered an OIPC decision dealing with a limitation of
the right of access to government information in Ontario that also confirmed the broad scope
of s. 13 FIPPA application in BC. In John Doe v Ontario (Finance),3 the Supreme Court of Canada
was called upon to determine whether a record containing policy options fell within the terms
“advice” or “recommendations” under s. 13(1) of FIPPA, and therefore, qualified for exemption
from disclosure. This case concerned section 13(1) of the Ontario Freedom of Information and
Protection of Privacy Act, which provides that a head of a government institution "may refuse
to disclose a record where the disclosure would reveal advice or recommendations of a public
servant..." That section is analogous to the policy advice or recommendation exception in s.
13(1) of BC FIPPA.
3 2014 SCC 36.
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John Doe, a tax lawyer, made an access to information request after the Ministry of Finance
amended tax legislation that was partially retroactive. He requested the Ministry provide all
records related to its consideration of the issue of retroactivity, including the effective date of
certain amendments to the legislation. The records at issue were undated drafts of a policy
options paper examining the possible effective dates of the amendments. The records included
an express recommendation against some options and advice regarding all the options. Only a
small section of each record included a recommended course of action for the decision maker
while the remainder consisted of considerations the decision maker should take into account
when making the decision. The Ministry refused to disclose the records on the basis of s. 13(1)
exemption.
The OIPC reviewed the records and ordered their disclosure to the applicant. It took a narrow
approach to the phrase “advice or recommendations”, and concluded that since most of the
records did not reveal a preferred course of action for the decision maker to accept or reject,
they could not be classified as “advice or recommendations”. The Ministry applied to the
Ontario Superior Court for judicial review of the OIPC’s decision, which was dismissed. The
Court of Appeal found the disclosure order unreasonable and ordered the matter remitted to
the OIPC.
The Supreme Court of Canada found that that the OIPC’s interpretation failed to take into
account that “advice” must have a broader meaning than “recommendations” in order to give
effect to the words of the statute. The Court reasoned:
[24] … in exempting "advice and recommendations" from disclosure, the
legislative intention must be that the term "advice" has a broader meaning
than the term "recommendations"… Otherwise, it would be redundant. By
leaving no room for "advice" to have a distinct meaning from
"recommendation", the Adjudicator's decision was unreasonable.
The Court found that the term “advice” was broad enough to include “policy options”. In the
Court’s view, the policy options were lists of alternative courses of action to be accepted or
rejected in relation to a decision that was to be made. In other words, they constituted an
evaluative analysis, as opposed to objective information. Since the information in the records
consisted of the opinion of the author of the record as to the advantages and disadvantages of
each option, it was prepared to be served as the basis for making a decision between different
options. Therefore, the policy options, being part of the decision-making process, were held to
be “advice” within the meaning of s. 13(1).
The Court observed that interpreting "advice" in s. 13(1) as including opinions of a public
servant as to the range of alternative policy options accords with the balance struck by the
legislature between the goal of preserving an effective public service capable of producing full,
free and frank advice and the goal of providing a meaningful right of access. The Court found
that the Ministry was justified in withholding the records.
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III. HOW TO TREAT “OUT OF SCOPE” INFORMATION
Section 4 of FIPPA provides that a person who makes a request has a right of access to any
responsive records:
4 (1) A person who makes a request under section 5 has a right of access to
any record in the custody or under the control of a public body …
(2) The right of access to a record does not extend to information excepted
from disclosure under Division 2 of this Part, but if that information can
reasonably be severed from a record an applicant has the right of access to
the remainder of the record.
Three recent decisions of the OIPC, Orders F14-27,4 F14-31 5 and F14-32,6 have called into
question the practice of many public bodies in how they treat non-responsive information
located within records that are responsive to an access to information request. The public
bodies in those decisions withheld a number of excerpts from the responsive records on the
basis they are “out of scope” of the applicant’s request.
In Order F14-27,7 the Adjudicator interpreted ss. 4(1) and (2) of FIPPA as follows:
[11] The Legislature confers a right to access to "records" under s. 4(1) of
FIPPA, which is subject to information excepted from disclosure under
Division 2, Part 2 of FIPPA. These exceptions to disclosure each relate to
"information" rather than "records".
The Adjudicator found that even if only a portion of a record is responsive to an applicant
request, the public body is required to disclose all of the information in that responsive record
unless an exception to disclosure under Division 2, Part 2 of FIPPA applies.
While the Adjudicator acknowledged that imposing such a requirement on a public body may
result in the public body disclosing more information than if it was only required to disclose
responsive information, he found that the broader disclosure is consistent with the purpose of
FIPPA:
[12] This broader disclosure makes it less likely that there will be a
misunderstanding about the real weight or meaning of the disclosed
information due to it being out of context. It also helps prevent access
requests from being interpreted too narrowly. This more fulsome disclosure
4 [2014] B.C.I.P.C.D. No. 30.
5 [2014] B.C.I.P.C.D. No. 34.
6 [2014] B.C.I.P.C.D. No. 35.
7 [2014] B.C.I.P.C.D. No. 30.
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is consistent with the stated purpose in s. 2 of FIPPA to make public bodies
more accountable, as well as the requirement in s. 6 of FIPPA that public
bodies must respond to applicants openly, accurately and completely.
Records at issue in Order F14-318 concerned two long chains or strings of emails. Not all
information in the string of emails related to the topic of the applicant’s request, and the City of
Vancouver withheld those portions of the records, concluding that they were not responsive to
the request. There were no page breaks, spaces or other markers between the emails to
separate them.
While the Adjudicator agreed with the City that not all information related to the topic of the
applicant’s request, she stated that “the fact that there is unrelated information in a record that
is responsive to the access request is not a ground under FIPPA to refuse to disclose the
information” (para 11). In other words, even if only a portion of a record is responsive to an
access request, the entire record is a responsive record and the public body must disclose the
entire contents unless an exception to disclosure under Part 2, Division 2 of FIPPA applies.
The City also withheld some information because it was repeated elsewhere in the records and
other information because it amounted to “examples” of the sort of information that could be
entered into a log sheet. The Adjudicator concluded that the fact that information is repeated
elsewhere or is only an example did not authorize the City to refuse to disclose the information.
As for the repeated information, the Adjudicator held that the City should have applied the
FIPPA exceptions in Part 2 as it did to the other information.
Likewise, in Order F14-32,9 the public body withheld a number of excerpts of information that
are part of responsive records as out of scope to the request. For example, one of the
responsive records was a review written by a social worker, which the public body disclosed a
part, withheld a part under s. 22, and withheld the remainder as “out of scope of request”. As
with the previous Orders, the Adjudicator concluded that regardless of whether the
information the public body has marked as “out of scope” is responsive to the substance of the
applicant’s request, the public body cannot withhold the information for that reason only. It is
because the information is part of records that are responsive to the request.
As a result of these decisions, public bodies are required to process the applicant’s request for
information in responsive records, even if the information itself is not responsive to the request
or marked as “out of scope”. They are then to examine whether the information is subject to
an exception to disclosure under Part 2 of FIPPA and can justify withholding it. If no exceptions
apply to the information, the Orders suggest that the information in the records must be
released to the applicant.
8 [2014] B.C.I.P.C.D. No. 34.
9 [2014] B.C.I.P.C.D. No. 35.
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These decisions will undoubtedly (and already have) caused difficulty where long email strings,
in camera minutes, and other documents pertain to numerous sensitive matters. In these cases
where another provision of the Act may apply, how strictly will the government body have to
justify the non-disclosure? Will every out of scope in camera meeting minutes require a
separate justification as to its basis for in camera disclosure? For now, we consider that where
out of scope information pertains to another ground for withholding the information, this
should be clearly indicated, but that the “line by line” justification for this severing is not
properly warranted.
IV. CONTRACT NOT LEGAL INSTRUMENT UNDER S. 12(3)(A)
Order F13-14 10 concerned the issue of whether a contract is a “legal instrument” pursuant to s.
12(3)(a) of FIPPA. In that case, the Township of Langley refused to disclose the original and
revisions of a storm water management plan for a development on the basis that they were
drafts of a legal instrument, a servicing agreement. The applicant acted for several residential
landowners whose properties bordered the proposed land development in Langley. A servicing
agreement between the Township and the owner of the land under development detailed
terms and conditions for the construction and installation of works and services on the
development lands. The storm water management plan formed part of the servicing
agreement. The Township provided the applicant with the final version of the storm water
management plan, but withheld the original and revisions—five versions in total—of the plan,
as part of the agreement.
Section 12(3)(a) of FIPPA provides:
12(3) The head of a local public body may refuse to disclose to an applicant
information that would reveal
(a) a draft of a resolution, bylaw or other legal instrument by
which the local public body acts or a draft of a private Bill …
The Township submitted that the legal instrument in this case was the servicing agreement
between itself and the owner of the land under development. Since the final version of the
storm water management plan formed part of that servicing agreement, the Township argued
that the preliminary versions of the storm water management plan were drafts of part of the
legal instrument.
The Adjudicator found that while the term “legal instrument”, used in its general sense, would
include all legal documents, such as contracts, it must be read in the context of which it is
found. Since “resolution”, “bylaw”, and “private bill” in s. 12(3)(a) all shared the characteristic
of being a legislative or statutory enactment or decision of a public body, the Adjudicator found
10 [2013] B.C.I.P.C.D. No. 17.
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that a contract is not a “legal instrument” because it does not share the trait of being a
legislative enactment or decision. The Adjudicator found that the meaning of "other legal
instrument" in s. 12(3)(a) did not include the servicing agreement or the storm water
management plan, and the Township was ordered to disclose the records requested.
On judicial review,11 the BC Supreme Court concluded, in obiter, that the Adjudicator’s analysis
and decision was reasonable, and dismissed the petition.
V. MUNICIPAL COUNCILLORS ARE “OFFICERS” UNDER FIPPA
In R v Skakun,12 the BC Court of Appeal confirmed that the term “officer” in s. 30.4 of FIPPA
includes an elected municipal councillor.
Section 30.4 of FIPPA provides:
An employee, officer or director of a public body or an employee or
associate of a service provider who has access, whether authorized or
unauthorized, to personal information in the custody or control of a public
body, must not disclose that information except as authorized under this
Act.
Mr. Skakun was a municipal councillor in the City of Prince George. He admitted to releasing a
confidential and privileged investigative report involving City staff, which he received during a
closed council meeting, to the Canadian Broadcasting Corporation (CBC). He did this without
authority, or otherwise following the disclosure process prescribed by FIPPA.
In 2011, the BC Provincial Court found that Councillor Skakun was guilty of breaching s. 30.4,
and the BC Supreme Court upheld the conviction. The Court of Appeal recently confirmed the
lower court’s decision that an elected municipal councillor is indeed captured by the definition
of “officer” in s. 30.4.
The Court Appeal based its analysis on the plain and ordinary meaning of the term, when read
in the context of the broadly-stated purposes and wide range of targets in FIPPA. The Court
concluded that both elected and appointed officials are captured by the definition of “officer”
in s. 30.4, and Councillor Skakun was an “officer” of a public body under FIPPA.
This was the first time a conviction under s. 30.4 of FIPPA involving a public official had been
brought before the courts. The Provincial Court sentenced Councillor Skakun to a fine of $750
plus applicable surcharge. This case is a reminder to local government employees and officials
that breaches under FIPPA can have serious repercussions.
11 Langley (Township) v De Raddt, 2014 BCSC 650.
12 2014 BCCA 223.
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VI. PROTECTING REQUEST FOR PROPOSALS (RFPS) UNDER S. 21
Many local governments apply s. 21(1) of FIPPA when they receive an access to information
request about proposals received as part of RFPs, that they believe would be harmful to third
parties. Section 21(1) of FIPPA sets out a three-part test for determining whether public bodies
can refuse to disclose information when disclosure is harmful to third party business interests:
21 (1) The head of a public body must refuse to disclose to an applicant
information
(a) that would reveal trade secrets, commercial, financial, labour
relations, scientific or technical information of or about a third
party,
(b) that is supplied, implicitly or explicitly, in confidence, and
(c) the disclosure of which could reasonably be expected to
(i) harm significantly the competitive position or interfere
significantly with the negotiating position of the third
party,
(ii) result in similar information no longer being supplied to
the public body when it is in the public interest that similar
information continue to be supplied,
(iii) result in undue financial loss or gain to any person or
organization, or
(iv) reveal information supplied to, or the report of, an
arbitrator, mediator, labour relations officer or other
person or body appointed to resolve or inquire into a
labour relations dispute.
All three parts of the test must be met in order for the information in dispute to be properly
withheld. The first part is quite straightforward in a RFP scenario as information on pricing and
contractual terms would reveal commercial or financial information about a third party. A
public body must then demonstrate that the information was supplied by the third party to the
pubic body in confidence. For the last factor, the public body must show that disclosing
information the third party supplied could reasonably be expected to cause one of four kinds of
harm set out in subsection(c).
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In Order F14-21,13 the applicant requested proposals submitted in response to the District of
Mission’s RFP for gravel extraction. The applicant was one of seven contractors that submitted
a bid, and the proposals contained detailed information on pricing and equipment. At the time
of the request, the District had not yet awarded a contract. The Adjudicator found that the first
step of the s. 21(1) test was easily met in that the information would reveal financial
information of the third party. Since the RFP contained a statement that the District was to
hold the proposals in confidence, and that it “will not disclose or discuss any confidential
information of another Proponent” (para 18), the Adjudicator found that the information was
also supplied in confidence under subsection (b).
As for the final step, the District relied on subsections (i) and (iii), that the disclosure would
allow the applicant to estimate other proponents’ pricing in similar projects and gain significant
advantage over its competitors in future RFPs. The District provided evidence that it was
planning to reissue the RFP for the same or similar services on nearby properties. If the
disclosure was ordered, the District stated that the applicant will be provided with “undue
knowledge about the practices, procedures, and methods of its competitors that the Applicant
may not otherwise have access to” and may use this information to increase its competitive
edge in the industry (para 20). The proponents also made similar submissions in this regard.
The Adjudicator agreed with the District and ordered it to withhold most of the information
included in RFP response submissions by proponents, except for publicly available information
and information of a general nature. The factors that persuaded the Adjudicator to withhold
the records were that the contract had not been awarded and there was evidence that the
parties may be invited to compete for the same or similar work in the near future. It was also
important that there were confidentiality provisions in the RFP.
In contrast, in Order F14-36,14 the City of Vancouver was ordered to disclose all of the
requested information pertaining to a RFP. The City awarded a contract for pay-by-phone
parking services following a RFP. The applicant requested a list of RFP proponents, including
their identities and the value of proposals. The City created a record in response and disclosed
some information, but withheld the value of each proposal and information that disclosed the
term of the previous pay-by-phone parking services contract it awarded because it believed
disclosure would, among other things, be harmful to the business interests of a third party (s.
21(1)).
The Adjudicator found that s. 21(1)(b) did not apply to any of the information in dispute. She
observed that the information in this case was commercial information as it was associated
with the selling of the proponents’ services. However, the Adjudicator found that the term
length and the transaction fee amounts for each bid were not supplied in confidence, as the
13 [2014] B.C.I.P.C.D. No. 24.
14 [2014] B.C.I.P.C.D. No. 39.
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City did not provide any evidence that it told the proponents that it would maintain their bids in
confidence, or whether any of the bids it received were marked confidential.
As for the harm argument under s. 21(1)(c)(i), the City asserted that the disclosure would harm
the competitive and negotiating position of the third parties for future projects. However, the
Adjudicator found that the City made no submissions about whether the harm would be
“significant” nor did it provide any evidence to support its claim that the disclosure could
reasonably be expected to harm the proponents. The Adjudicator also rejected the City’s
argument that disclosing prices in this case could negatively influence the bidding process for
future RFPs, since the City submitted that it only reissues RFPs for pay-by-phone parking
services every three years. In a rapidly changing era of technology, the Adjudicator concluded
that disclosing the information at issue could not materially affect bidding three years later.
From these two cases, it is clear that the OIPC will not automatically protect proposals received
in response to RFPs from disclosure if public bodies fail to discharge their evidentiary burden.
When a contract has not yet been awarded and if there is a possibility that contractors will be
invited to compete for a similar work in the near future, that sensitive information in proposals
will likely be withheld. It is important for local governments to include language in the RFP
documents stating that the bids will be held in confidence, and mark any bids they receive as
confidential.
VII. HOW AND WHEN TO APPLY S.25 PUBLIC INTEREST DISCLOSURE
Section 25 of FIPPA requires public bodies to disclose information under two grounds,
regardless of whether a request for access is made. One is when there is a risk of significant
harm to the environment or to the health or safety of the public, and the other is where the
disclosure is clearly in the public interest. This obligation overrides any exceptions to disclosure
that might otherwise apply to the information at issue, and must be met without delay.
25 (1) Whether or not a request for access is made, the head of a public
body must, without delay, disclose to the public, to an affected group of
people or to an applicant, information
(a) about a risk of significant harm to the environment or to the
health or safety of the public or a group of people, or
(b) the disclosure of which is, for any other reason, clearly in the
public interest.
(2) Subsection (1) applies despite any other provision of this Act.
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Many public bodies have found this section difficult to interpret since the determination of
what triggers an urgent need for disclosure can be open to broad and inconsistent
interpretations. To provide guidance to public bodies, Commissioner Denham published
Investigation Report F13-05,15 about how and when public bodies should apply s. 25.
The phrase “without delay” has been interpreted as requiring an element of temporal urgency
and the disclosure duty is triggered when there is an urgent and compelling need for public
disclosure. According to former Commissioner Loukidelis, the circumstances must be “of a
clear gravity and present significance which compels the need for disclosure without delay.”16
Since section 25 precludes mandatory disclosure in all but the most urgent and compelling
situations, it sets a high legal threshold for disclosure.
The Commissioner, in her Report, stated that the following types of information would be
considered a significant risk of harm as identified in s. 25(1)(a):
▪ information that discloses the existence of the risk;
▪ information that describes the nature of the risk and the nature and extent of
any harm that is anticipated if the risk comes to fruition and harm is caused; or
▪ information that allows the public to take action necessary to meet the risk or
mitigate or avoid harm.
When a public body discloses information pursuant to s. 25(1)(a), it must be able to provide its
reasons for doing so to the OIPC upon request. Reasons should include evidence of the
existence of the identified risk, and a description of the nature and extent of anticipated harm.
As for the public interest disclosure pursuant to s. 25(1)(b), public bodies must conduct a two-
step analysis. First, there must be an urgent and compelling need for disclosure. Second, there
must be a sufficiently clear public interest in disclosure. In order for there to be a clear public
interest, the information must:
… contribute in a substantive way to the body of information that is already
available to enable or facilitate effective use of various means of expressing
public opinion and making political choices. Section 25(1)(b) does not apply
to information that will add little or nothing to that which the public already
knows.
15 [2013] B.C.I.P.C.D. No. 33.
16 Order 02-38, [2002] B.C.I.P.C.D. No. 38, at para 53.
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The Commissioner noted that the potential interest of the public in learning about an issue
does not necessarily make disclosure of that information clearly in the public interest. While
the right of access to information is essential in holding public bodies accountable, the
Commissioner states that this section is not to be used by the public to scrutinize public bodies.
Instead, the public may exercise its general right to access records under FIPPA. The
Commissioner noted that s. 25(1)(b) has never been applied by a public body.
According to the Commissioner, when disclosing information under s. 25, public bodies are only
required to disclose information that satisfies either the risk of significant harm or clear public
interest tests, and not disclose entire records. In other words, information in records that is not
compelling is exempt from the disclosure.
In her Report, the Commissioner reviewed five case studies to determine whether public bodies
have complied with their obligations under s. 25. The following cases were reviewed:
▪ Testalinden Dam collapse near the Town of Oliver (Ministry of Forests, Lands and
Natural Resource Operations);
▪ Air quality study in the City of Prince George (Ministry of Environment);
▪ Lyme disease study results (BC Centre for Disease Control);
▪ Well water test results (Cowichan Valley Regional District); and
▪ Presence of mold in student residence (Simon Fraser University).
The Commissioner only found a failure to comply with s. 25 with respect to the Testalinden
Dam collapse. In that case, the Ministry of Forests, Lands and Natural Resource Operations was
responsible for the inspection and safety of dams. It had information from engineering and
inspection reports dating back to 1970s and 80s that the Testalinden Dam was nearing the end
of its life and was a hazard to people and property located downstream. The reports strongly
recommended the dam be replaced with a new one. When the dam failed in 2010, it released a
torrent of mud and debris from the reservoir, seriously damaging houses and farmland situated
below.
The Ministry’s position was that s. 25 did not require it to disclose the reports because the
evidence available at the time did not indicate that there was a level of safety or environmental
risk in relation to the dam that reached the threshold required. The Commissioner disagreed,
and concluded from the totality of the reports that there was an urgent and compelling need
for public disclosure as the dam was clearly referred to as a “hazard”. Therefore, the Ministry
failed to meet its obligation under s. 25(1)(a) to disclose information about the compromised
state of the dam to residents downstream. In coming to this conclusion, the Commissioner
noted that while the Ministry’s obligation to consider s. 25(1) first arose when FIPPA came into
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force in 1993, this did not mean that it was free to ignore information that had come to its
attention prior to that time.
In addition to the case review, the Commissioner made two recommendations for public bodies
in her Report. First, she recommended that all public bodies should develop policies that
provide guidance to officers and employees about the public body’s responsibilities under s. 25
of FIPPA, by clearly setting out the following:
▪ criteria that define a risk of significant harm to the environment;
▪ criteria that define whether there is a risk of significant harm to the health or
safety of the public;
▪ criteria that define when the disclosure of information is, for any other reason,
clearly in the public interest;
▪ criteria to determine if there is an urgent and compelling need for disclosure of
information;
▪ criteria to determine whether the head of the public body should notify the
public or an affected group of people;
▪ procedures for communicating this information to the head of the public body;
▪ criteria to determine when to disclose the relevant information to the public or
an affected group of people; and
▪ procedures to notify third parties and the Commissioner.
The Commissioner indicated in her Report that the OIPC will be undertaking an audit of s. 25
compliance across a targeted number of public bodies in 2014/2015.
The Commissioner also called for legislative amendment to s. 25(1)(b) of FIPPA to remove the
requirement of temporary urgency. She believes that the reason why s. 25(1)(b) has never
been applied by a public body is because the disclosure must be both in the public interest and
urgent. She believes that the public interest disclosure provision should not require urgent
circumstances. Her recommendation is that this section should be amended so that public
bodies are required to disclose information of a non-urgent nature, when the disclosure is
clearly in the public interest. While no such legislative amendment is proposed to date, if the
Commissioner’s recommendation were to be adopted, it would significantly broaden local
government’s disclosure requirements under s. 25.
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NOTES
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DECEMBER 2, 2011
Mike Quattrocchi
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LOCAL GOVERNMENT PROCUREMENT: “BEYOND CONTRACT A”
I. INTRODUCTION
Most local government officials dealing with procurement matters have at least some
familiarity with ‘Contract A’. It is also well understood that the existence of Contract A can give
rise to significant legal issues and exposure to liability in connection with a procurement
process. In this context, it is often necessary to consult with legal advisors and to make difficult
procurement decisions based on the risks of different courses of action in dealing with bidders
and awarding a contract.
What is perhaps less clear is the extent to which other legal constraints can impact local
government procurement decisions. In the context of a process that does not involve Contract
A, or a Contract A process that includes a waiver or limitation of liability in favour of the
procuring local government, are there legal requirements that can nevertheless affect a
procurement decision? Is a public procurement process legally required at all?
This paper looks beyond Contract A and examines some of the other legal issues that can affect
local government procurement, including the impact of current legislation and Provincial trade
agreements, as well as the role of the Courts.
II. THIS PAPER IS NOT ABOUT ‘CONTRACT A’
This paper is not about ‘Contract A’. However, to understand what this paper is about, one
needs to have a basic understanding as to what this paper is not about (i.e. Contract A). So
what is Contract A? Is there a Contract B? Contract C?
Contract A is a legal concept that the Canadian courts have developed in connection with calls
for tenders, primarily for construction projects. Normally, a person who calls for tenders does
so with the goal of entering into a contract of some kind, such as for the construction of a
project or the sale or purchase of land. The courts refer to this desired contract as ‘Contract B’.
However, a person calling for tenders may also incur contractual obligations in connection with
the tender process itself. The courts refer to this contract as ‘Contract A’.
Briefly stated, if the tender documents indicate an intention on the part of the person calling
for tenders to enter into contractual relations as part of the tender process itself, a separate
Contract A may arise between that person and each bidder who submits a bid. A requirement
that bids remain irrevocable and open for acceptance for a specified period of time is a typical
indication of an intention to enter contractual relations and such irrevocability has been
referred to as the hallmark of a tender. However, Contract A can arise even where
irrevocability is not a requirement. Again, this depends on intention as evidenced by the terms
of the tender process.
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Importantly, the name of the process and terminology used in the procurement documents will
not necessarily be determinative of whether Contract A may arise. For instance, a request for
proposals that requires proposals to be ‘open for acceptance’ for a period of time may give rise
to Contract A.
Following is an example of a language indicative of an intention to enter into contractual
relations (Contract A) in connection with a procurement process:
The District hereby requests bids for the construction of the sewer line in
accordance with the attached specifications. Bids shall set out a fixed price
for the performance of the project in accordance with the requirements of
these Tender Documents. Bids shall be irrevocable for a period of 60 days
and must be submitted before 2:00pm, December 2, 2011, by submitting a
completed Tender Form to the District at the above address.
If a person submits a bid in accordance with these requirements, a Contract A will arise
between that bidder and the District. Under that Contract A, the bidder would be required to
honour its bid and, if accepted by the District, enter into ‘Contract B’ for the sewer line
construction project at the stated fixed price. In return, the District would be obligated to treat
bidders in accordance with the terms of the tender documents and not to apply evaluation
criteria that are not identified in the tender documents. Depending on the other terms set out
in the tender documents, the District might also be limited to accepting only bids that comply
with the tender document requirements and might be under a duty to treat bidders fairly.
As to the consequences of a breach of this Contract A:
▪ Bidder Default: if the District were to select a bidder and the bidder were to
refuse to sign Contract B, the bidder could be liable to the District for the
additional costs to the District associated with awarding the contract to the next
preferred bidder.
▪ If, on the other hand, the District does not comply with the terms of its tender
documents, such as by accepting a bid that does not comply with the tender
requirements (such as by qualifying some aspect of its pricing), a disgruntled
bidder may be in a position to sue the District for breach of Contract A. If that
bidder then established that the District breached Contract A and that the bidder
would have been awarded Contract B had the District not breached, the bidder
would be entitled to recover from the District the amount of profit the bidder
would have earned had it been awarded the contract (without having to actually
perform any work for the District!).
There may be benefits to a local government with such a process. The process may result in the
receipt of more competitive bids. A bidder may be more likely to honour their bid, given the
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potential repercussions of a failure to follow through and sign Contract B. Such a process may
also help to maintain public confidence in a local government’s procurement practices.
At the same time, the process of determining the best bid is complicated by the fact that the
local government must also consider its obligations to bidders under Contract A. Arguably,
these obligations help maintain the integrity of the procurement process. However, with
Contract A, local governments frequently face difficult decisions in reviewing bids and
corresponding potential financial exposure to other bidders. For instance, if the tender
documents prevent a local government from accepting bids that do not materially comply with
the tender documents, the local government may be faced with the difficult task of assessing
whether a bid defect is material.
III. BEYOND CONTRACT A
Consider the following scenarios:
▪ A local government might use a request for proposal process that clearly states
that no contractual obligations arise unless a project contract is signed.
▪ A local government’s tender documents might include a clause limiting or
waiving liability against the local government in connection with the tender
process.
▪ A local government might ‘sole source’ a contract.
In cases one and three, Contract A does not arise. In case two, a bidder may not be able to sue
for breach of Contract A.
What procurement obligations do local governments have outside the realm of Contract A? To
what extent is a local government obligated to use a particular procurement process? If a local
government uses a process that avoids Contract A, what legal constraints remain?
A. Local Government as Creatures of Statute
1. The Power to Enter Contracts
BC local governments are creatures of Provincial statute. A local government has only those
powers set out in legislation and such powers must be exercised in accordance with the limits
and requirements under such legislation.
With procurement of a project or a purchase or sale of land or an asset, a local government is
exercising its power to enter contracts. It is looking for another person to enter into a contract
to do some work or buy or sell some asset. Municipalities do not have a specific power to enter
into contracts. Rather, a municipality’s authority to enter contracts is derived from section 8 (1)
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of the Community Charter, which provides that a municipality “has the capacity, rights, powers
and privileges of a natural person of full capacity”. While regional districts do not have ‘natural
person’ powers, section 176 of the Local Government Act authorizes regional districts to make
agreements of various kinds and to acquire and dispose of land and other property.
The Community Charter and Local Government Act do contain various limitations on the power
to make contracts, including a requirement for elector approval of liabilities under agreement
exceeding 5 years, a requirement that expenditures under agreements be provided for in a
financial plan and a requirement for public notice before agreeing to sell or grant other
interests in land.
2. Procurement Requirements Under Statute
Generally speaking, there is no statutory provision requiring that a local government use any
particular kind of procurement process or preventing a local government from sole sourcing a
contract. The Community Charter and Local Government Act leave it to individual local
governments to make these kinds of decisions. This may reflect a view that contract
procurement is a ‘corporate’ function and does not involve the exercise of a power that is
unique to government (unlike the powers to tax and to regulate activities).
One notable exception is that under section 186 of the Local Government Act, a regional district
that wishes to sell land or dispose of an interest in land (such as by granting a lease) remains
obligated to make the land (or interest) available to the public for acquisition, subject to certain
exceptions. Section 186 does not, however, specify a particular process for doing so
3. Indirect Statutory Motivation – Prohibition on Assisting a Business
(a) Prohibition on Assistance to a Business
Section 25 of the Community Charter and 185 of the Local Government Act respectively prohibit
municipalities and regional districts from providing ‘assistance’ to a business. Assistance
includes the provision of a “grant, benefit, advantage or other form of assistance” and includes
disposing of land for less than market value. Accordingly, a local government would be
providing unlawful assistance if it sold land to a business for less than market value purchase
price or leased land to a business for less than market value rent. Similarly, a local government
that enters into a contract for a service would be providing unlawful assistance to a business if
the contract is for a greater than market value payment.
In considering allegations of unlawful assistance to a business, the BC Courts have to date
shown considerable deference to the decisions of council and have focused on whether there
was an obvious intention to assist a business [Nelson Citizen’s Coalition v. Nelson (City) (1997),
38 M.P.L.R. (2d) 175 (B.C.S.C.)]. The Courts have however suggested that council’s approach to
assessing the value of a transaction (and the consideration to be received from the other party)
can have a bearing on whether a council or board has breached this rule.
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In Miller v. District of Salmon Arm (2005), 9 M.P.L.R. (4th) 95, the BC Court of Appeal considered
how far a council must go to ensure it receives market value consideration for the sale of land.
A developer, who was also the mayor, was seeking a 38-lot subdivision and in connection with
that subdivision wished to acquire some land from the District. Council approved the
transaction using the assessed value of the developer’s adjoining land as a yardstick for
determining the value of the road to be transferred to the developer. A neighbour alleged the
transaction was for less than market value and tendered an appraisal suggesting that council
had received substantially less than market value. Rather than trying to ascertain market value
and then determine if the District had sold for less, the Court looked at council’s intention and
actions and held:
Members of the District Council who dealt with this issue could reasonably
be expected to have themselves some general idea of land value relating to
lands located in the District … deciding the precise value of a small strip of
land like the one transferred, land that was traversed by underground pipes,
is not easy and probably no figure would command universal assent. Council
chose to adopt as a measure of value assessed valuation which does usually
provide some guide to value of land. The members of Council must, in my
opinion, be afforded a decent measure of discretion in deciding on such an
issue…. I would not wish to be taken as saying it would in all circumstances
be appropriate for a municipal body to proceed with a land transaction
without obtaining specific appraisal information. In the case for instance of a
sizeable lot in an urban area, it might be reckless on the part of a council to
fail to get detailed appraisal evidence but that is not this case at all. It seems
to me that Council was not acting in any improper fashion in the approach
they took to valuation of this small piece of land.
Accordingly, a court is likely to show deference to council and board value assessments,
provided there is some reasonable basis for that assessment.
(b) Assistance to Business and Procurement
The statutory prohibition on assisting business and the approach of the courts to this issue
provide strong support for local governments to use some kind of open and competitive
procurement process, in order to ensure that the local government receives fair market value
consideration with respect to the contract. If a local government goes through such a process
in eventually awarding a contract, the local government is likely to be in a very strong position
to defend any claim that it provided unlawful assistance to a business.
On the other hand, where a local government awards a contract to a person without any kind
of process, such as sole sourcing, the local government will have little guidance that the
contract if for market value, unless it obtains a third party assessment of the transaction. This
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circumstance would leave the local government more vulnerable to allegations of assisting a
business.
In such a case, it is possible that other contractors may feel disgruntled at not having had an
opportunity to bid on the contract. If such a contractor feels that the contract was for less than
market value, they may decide to commence legal proceedings challenging the award of the
contract. If a court were to agree that the local government had provided unlawful assistance
to a business, the court might set aside the award of the contract. If the ‘horse has left the
barn’, such that and monies have already been paid to the contractor, it is possible that council
or board members involved in approving the transaction might have personal liability for any
financial loss to the local government. Under section 191 of the Charter, a council member who
votes for a bylaw or resolution authorizing the expenditure or other use of money contrary to
the Act may be disqualified from office and may also be personally liable to the municipality for
the amount.
Of course, a court’s conclusion as to whether or not a local government has provided assistance
will depend on a number of factors, including the local government’s reasons for sole sourcing.
Nevertheless, the statutory prohibition on providing assistance to a business provides a
significant incentive for local governments to procure contracts using an open and competitive
procurement process. A court is unlikely to question a contract that was the product of such a
procurement process, where the council or board considered the contractor’s proposal or bid
to provide the best value to the municipality.
B. Provincial Trade Agreements
British Columbia is party to the Agreement on Internal Trade (AIT) with the Federal Government
and other provinces and territories. Pursuant to the AIT framework, the Province has entered
into the Trade, Investment and Labour Mobility Agreement (TILMA) with Alberta and, most
recently, the New West Partnership Trade Agreement (NWPTA) with Alberta and
Saskatchewan. These agreements contain provisions directed at procurement by local
governments.
1. AIT
Annex 503.4 of the AIT contains procurement requirements for “municipalities, municipal
organizations, school boards and publicly funded academic, health and social service entities, as
well as any corporation or entity owned or controlled by one or more of the preceding”. These
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requirements apply where the “procurement value” is $100,000 or greater, for goods and
services, or $250,000 or greater for construction. The procurement requirements for such
entities include the following:
▪ Non-Discrimination - No discrimination based on province of origin of the goods,
services or materials, or the province of origin of the supplier of the goods
services or materials.
▪ Transparency – A requirement to provide ready access to legislation, regulations,
procedures, guidelines and administrative rulings regarding procurement
matters, and to notices of contract award.
▪ Fair Acquisition Process:
· Procurements shall be covered by a “tendering process” (subject to
limited exceptions).
· Use a “fair acquisition process that is based on the highest degree of
competition, efficiency and effectiveness and is consistent” with the non-
discrimination and transparency requirements of the Annex.
· Post tender notices on Provincial electronic tendering system.
· Evaluation of bids may take into account price, quality, quantity, delivery,
servicing, the capacity of the supplier to meet the requirements of the
procurement and any other criteria consistent with the non-
discrimination requirements.
· Tender documents must identify procurement requirements, evaluation
criteria and the methods of weighting and evaluating the criteria.
· Pre-qualification is permitted.
▪ Notable exceptions to the procurement requirements include:
· “Where an unforeseeable situation of urgency exists and the goods,
services or construction cannot be obtained in time by means of open
procurement procedures”.
· the procurement (i.e. acquisition) of real property (land and
improvements).
Importantly, the term “tendering Process” as used above is defined to include “all methods of
tendering such as requests for information, requests for quotations, requests for proposals,
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requests for qualification and calls for tender”. As such, ‘tender’, as used in the AIT, appears to
permit procurement processes that do not give rise to Contract A.
The general AIT dispute resolution procedures do not apply to entities covered by Annex 503.4,
but the Annex includes its own complaints and resolution procedure. The Annex requires that
covered entities “document their non-judicial complaint process and provide this information
to suppliers or Provinces upon request” and “provide suppliers from other Provinces the
opportunity and process to challenge contract decisions that are equal to those available to
local suppliers”. The Annex also contains dispute resolution procedures permitting a supplier to
complain to the Province in which the supplier is located, which can then inform the other
Province. The Provinces are then to work with the parties to resolve the complaint. If the
complaint is not resolved, a Province can require consideration by an expert panel, which is to
make a report that is to form the basis for the Provinces to then reach a “mutually acceptable”
settlement.
Importantly, the Annex provides that the dispute resolution procedure is not to “cause delay in
the awarding of a contract by the covered entity”. This suggests that the dispute resolution
procedure is aimed at achieving a result that avoids a repetition of the problem giving rise to
the complaint, rather than directly addressing the particular compliant by changing a contract
award decision.
2. TILMA and NWPTA
The TILMA and NWPTA are substantially the same, this part refers to NWPTA. The NWPTA
requires that the ‘Parties’ (BC, Alberta and Saskatchewan), “will provide open and non-
discriminatory access to procurements” of “regional, local, district or other forms of municipal
government, school boards, public funded academic, health and social service entities, as well
as any corporation or entity owned or controlled by one or more of the preceding entities”
where the procurement value is:
▪ $75,000 or greater for goods or services, or
▪ $200,000 or greater for construction.
The Provinces are also to ensure that covered entities post tender notices on a Provincial
electronic tendering system.
As for dispute resolution, the NWPTA provides that the Provinces are to “consider options to
improve the dispute settlement process as it relates to procurement, including the
development of an effective bid protest mechanism”, but that until that time, the monetary
award provisions of the NWPTA do not apply to covered entities.
It is important to note that the AIT, TILMA and NWPTA contemplate that the provisions of each
agreement apply to covered entities and procurement and provide that in the event of any
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inconsistency “the provision that is more conducive to liberalized trade, investment and labour
mobility prevails”.
3. Impact of AIT, TILMA and NWPTA
While BC is a party to these trade agreements, local governments within BC are not signatories.
As such the mere existence of these agreements does not give rise to any obligations on the
part of local governments.
Furthermore, the Province has not enacted any legislation obliging local governments to
comply with these trade agreements. BC has enacted the Trade, Investment and Labour
Mobility Agreement Implementation Act and the New West Partnership Trade Agreement
Implementation Act. However, neither of these Acts makes compliance with the TILMA or
NWPTA mandatory for local government or provides for any repercussions should a local
government fail to comply with those agreements.
Accordingly, BC may be taking a “wait and see” approach before taking any formal steps to
force compliance. At this point, it is unclear what the impact would be if a local government
were to fail to comply with the AIT requirements. While it may be unlikely that there would be
direct repercussions on a particular procurement process from non-compliance, it is possible
that non-compliance would lead the Provincial government to take legislative action.
4. Grant Funding Agreements – Compliance with Trade Agreements
The Province has used funding contracts as an indirect means to require local government
compliance with trade agreements. In providing a grant to a local government, the Province
typically requires the local government to enter into a ‘contribution agreement’. These
agreements may contain provisions obligating the local government to comply with the AIT and
NWPTA. The following is an example of such a clause:
The Recipient will ensure that any contracts it awards to any Third Party will
be awarded in a way that is transparent, competitive, consistent with the
Agreement on Internal Trade, the Trade, Investment and Labour Mobility
Agreement, and consistent with value for money principles.
In theory, a failure to comply with the above obligation could see the local government lose the
funding promised under the contribution agreement.
5. Areas of Potential Non-Compliance
Most local governments probably comply with these trade agreements most of the time,
without necessarily trying to do so. That said, based on past experience with local government
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procurement, the following are some areas that may give rise to non-compliance with the AIT
and other trade agreements:
▪ On occasion a local government wishes to award a contract directly to a
particular contractor, without going through any kind of public process. This
would be permitted under the AIT if the matter was urgent and this urgency was
unforeseeable or if the circumstances fit into another AIT procurement
exception. However, a desire to proceed directly with a contractor merely
because the local government is comfortable with that contractor would not be
permitted under AIT.
▪ In the past, it was not uncommon for a local government to give some advantage
to local contractors. Such a local preference would not be permitted under the
AIT or NWPTA. This seems to have become less of an issue over time.
▪ As noted above, the AIT requires that a procurement process identify
“evaluation criteria and the methods of weighting and evaluating the criteria”.
While local governments sometimes include weighting or specifically list criteria,
in many cases there is no weighting at all. As for evaluation criteria, a local
government will typically wish to leave its procurement process fairly open in
terms of evaluation criteria (using ‘best value’ as the key factor, based on
obvious factors such as price, proposal content and experience) and then simply
explain its justification for selecting a preferred bid in a report council. A
traditional tender call will request price, experience and reference, but will not
expressly indicate criteria. In particular, the use of weighting can be
cumbersome and complicate tender evaluation unnecessarily. It might be
argued in cases such as a straight tender for work that necessary experience is a
pre-requisite for consideration and that price is otherwise the overriding factor.
However, where the process involves bid variation beyond price and
qualifications, such as for a design-build contract, the AIT would appear to
require the weighting of such criteria.
C. Local Government Policy
A local government must be mindful of its own policies. Most local governments have
procurement policies. These policies are typically established by council resolution and require
public procurement of most significant contracts.
A local government must comply with its policies. However, a council may authorize a
procurement process that differs from existing policy by passing a council resolution to that
effect. The establishment of a procurement policy is a political decision, as is a decision to vary
from such a policy.
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D. The Courts
Aside from the enforcement of Contract A, what role do the courts have in evaluating local
government procurement decisions?
Business corporations are creatures of statute. While such corporations can and do sometimes
procure contracts using a tendering process that gives rise to Contract A obligations, the
procurement decisions of such a corporation is not subject to second guessing by the courts at
the behest of the public or other contractors.
Local governments are also creatures of statute. However, local governments hold many
extraordinary powers, including to impose taxes and to spend money raised through taxation.
Accordingly, the courts have held that unlike private corporations, local government purchasing
decisions may be challenged, depending on the motivation behind the decision. In the
Supreme Court of Canada’s decision in Shell Canada Products Ltd. v. Vancouver (City) (1994), 88
B.C.L.R. (2d) 145, McLachlin J., stated, in considering whether government purchase decisions
should be treated differently from those of private corporations or individuals:
According to the private law of contract, each person, individual or
corporate, has the right to contract with whom it chooses, and on the terms
it chooses. The courts have not restricted this freedom of contract, but
confine themselves to enforcement and interpretation of contracts. It has
been said that a public body which seeks to procure goods or services is in
the same position as any private individual or corporation which seeks to
contract with another party. Vickers J. expressed this opinion in Peter Kiewit
Sons, [1992] B.C.J. No. 1591, where he held that the ordinary rules of private
law apply to the public contracting process, and that judicial review does not
lie for commercial decisions of public authorities. He explained (at p. 120)
that “it would be inappropriate to allow both a public law and a private law
remedy in situations involving government contracts where no particular
procedure is prescribed by statute or regulation”. Adding weight to the
argument that government purchasing decisions should be immune from
judicial review is the potential for excessive litigation, which may in turn
result in significant inconvenience to the public through a disruption of the
procurement process.
In favour of allowing judicial review of the procurement or purchasing
power of governments is the argument that while this principle is valid for
private contracts, the public nature of municipalities renders it inapplicable
to them. As Arrowsmith states, at p. 14, “there are many considerations
applicable to public bodies and not to private which may justify different
treatment of the two, even when engaged in similar activity”. The most
important difference is the fact that municipalities undertake their
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commercial and contractual activities with the use of public funds. Another
consideration justifying different treatment of public contracting is the fact
that a municipality's exercise of its contracting power may have
consequences for other interests not taken into account by the purely
consensual relationship between the council and the contractor. For
example, public concerns such as equality of access to government markets,
integrity in the conduct of government business, and the promotion and
maintenance of community values require that the public procurement
function be viewed as distinct from the purely private realm of contract law.
Finally, it must be remembered that municipalities, unlike private
individuals, are statutory creations, and must always act within the legal
bounds of the powers conferred upon them by statute. In particular, council
members cannot act in pursuit of their own private interests, but must
exercise their contractual powers in the public interest.
On balance, it is my view that the doctrine of immunity from judicial review
of procurement powers should not apply to municipalities. If a
municipality's power to spend public money is exercised for improper
purposes or in an improper manner, the conduct of the municipality should
be subject to judicial review.
Accordingly, local government purchasing and procurement decisions may be subject to legal
challenge, without the need to establish the existence of or a breach of Contract A. There are
some recent cases of interest in this regard.
1. Bot Construction Limited v. Ontario Ministry of Transportation (2009), 99 O.R.
(3d) 104 (Ont. S.C.)
In this case, Bot, a disgruntled bidder, seeking judicial review of the Ministry of Transportation’s
contract award, alleging the MOT had awarded the contract to a non-compliant bidder,
Cavanagh. The decision indicates that Bot brought the application for judicial review, rather
than a traditional suit for breach of contract A, in part because the Ministry’s tender documents
include a waiver of liability against the Ministry.
The Court first considered whether a judicial review was available to challenge the Ministry’s
decision. On this issue, the Court followed Shell, supra, stating:
We are also satisfied that the public law interests in this case are sufficient
to require that judicial review be available. The tendering decision of the
MTO has obvious broad public interest implications that extend beyond the
interests of the contracting parties, not only with respect to the construction
of public roads but also to the fairness and integrity of the process followed
in the expenditure of significant public funds – totaling $2 billion in 2008 and
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about $60 million for this project. As noted in Shell, public concerns such as
equality of access to government markets, integrity in the conduct of
government business, and the promotion and maintenance of community
values are relevant to government procurement powers. As well, the issues
in the tendering process in this case have significant economic implications
for both the steel industry in Canada and the road building industry in
Ontario. The government is the only market for provincial road construction
and it controls the pre-qualification of bidders and the economic
opportunities for the road building industry. Clearly, the tendering of public
highways in Ontario impacts not only the rights and interests of the industry
bidders but also broader public interests.
The Court then discussed how it would assess the reasonableness of the Ministry’s decision to
award the contract and referenced a Ministry Procurement Directive issued by the
Management Board of Cabinet had issued to the Ministry, which had as its stated purpose to
“ensure that goods and services are acquire through a process that is fair, open, transparent,
geographically neutral and accessible to qualified vendors”. With reference to the Directive,
the Court stated:
…the statute [governing the Ministry] in this case confers a broad general
power [to award a contract for this project] and does not impose any
specific limits on the exercise of that power. However the government has
chosen to issue directives to ministries to exercise that power fairly and
transparently and to provide open and equal treatment to qualified vendors,
with geographic neutrality …. The Directive does not have the force of law at
the instance of third parties and does not constrain the government to the
same degree as the statutory or regulatory scheme.… However, in our view,
the Directive creates and informs the MTO’s duty of fairness in the
procurement context….[The] Directive is published and its stated purposes
and mandatory nature create a public expectation that the tendering
process will be conducted fairly and transparently and will provide a level
playing field to qualified vendors.
The Court concluded that the Directive “gives rise to and informs a duty of fairness that is
reviewable by” the Court. The Court found that in allowing Cavanagh to submit a bid that did
not comply with the specification set out in the tender documents for rolled steel beams, the
Ministry had effectively modified that specification. The Court held that to award the contract
to Cavanagh would be contrary to the Directive and unfair to all bidders, who should have been
informed of the modification.
The Court quashed the contract award and remitted the matter back to the Ministry to re-
evaluate tenders in accordance with the terms and conditions of the tender documents. It also
indicated that the Ministry could at its discretion conduct a fresh tender process.
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The Ministry appealed the decision and was ultimately successful [Bot Construction Ltd. v.
Ontario (Ministry of Transportation), [2009] O.J. No. 5309 (Ont. C.A.)]. The Court of Appeal
concluded that the impact of the non-compliance of the Cavanagh’s bid was very small in
relation to the gap between its bid and the second lowest bidder. The Court of Appeal also
emphasized that it was not expressing any views as to the availability of judicial review in
respect of the procurement of the contract.
Notwithstanding the Court of Appeal’s decision, the lower Court decision remains of interest in
two respects in particular:
▪ The challenge was brought because of a lack of effective alternative grounds for
the complainant to challenge (ie. breach of Contract A).
▪ The lower Court was clearly guided by the Ministry’s directive both in concluding
that the contract award was reviewable by the court and in evaluating the
Ministry’s conduct in awarding the contract. This approach suggests that a court
might look beyond the terms of a procurement document that states very little
respecting evaluation criteria (such as a very basic RFP) and examine a local
government’s policies regarding procurement and contract award. Furthermore,
it could be argued that the AIT and other trade agreements, signed by BC, are
similar in effect to the Directive issued by Management Board of Cabinet to the
Ministry in the Bot decision and that those trade agreements and the Provinces’
commitments in them should guide a court’s review of local government
procurement decisions. That said, aside from clauses in grant contribution
agreements, while BC has signed these trade agreements, we are not aware that
of any directive issued by the Province to local governments respecting the trade
agreements.
2. Metercor Inc. v. Kamloops (City), [2011], 82 M.P.L.R. (4th) 77 (B.C.S.C.)
In this case, the City of Kamloops issued a request for proposals for the supply and installation
of residential water meters. CMI (formerly Metercor) submitted a proposal but was
unsuccessful, as the City entered into negotiations with another proponent, Neptune
Technology Group (Canada) Ltd. CMI applied by judicial review to set aside the City’s decision
on the basis that its process gave preferential treatment to Neptune and that the City had
breached its duty of openness, transparency, fairness and equality to all its proponents.
In this case, the parties had agreed that the City was under such a duty and they also agreed
that the Court had jurisdiction to review the City’s decision.
The Court dismissed all but one of CMI’s allegations and ultimately took issue with the City’s
approach to evaluating proposals. The RFP process had three stages. If a proponent did not
pass the “mandatory and review stages”, the City would not open the pricing component of
their proposal and the envelope containing their price would be returned unopened. The City
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used a scoring system for the second stage and the Court found that this system could result in
circumstances where two proposals are very close in score for the earlier stages, but only one is
able to continue to the price consideration stage. This was because the City required that a
proponent score 75% on the second stage stages in order to proceed to the price evaluation
stage. 75 points were for non-price related matters and 25 points for price. Out of those 75
points, 30 points related to project management, corporate experience and public education.
Out of the total possible 75 points, CMI received 38.53 points and Neptune received 67.68
points. The cut-off for consideration was 75% of 75 points, i.e., 56.25. The Court indicated that
as follows:
Out of a total 75 points CMI received 38.53 points. They would have
required 17.72 additional points in order to meet the cut-off before their
price would be considered. Even if Neptune got zero points for their price
and CMI got the full 25 points for their price, Neptune’s proposal would still
have scored just over 4 points higher than CMI. This would not mean that
the City would have to deal with Neptune, because the proposal made it
clear they were not bound to deal with any particular proponent even after
they passed the evaluation process. However, it is odd that the committee
selected a process by which they would not even consider the price of CMI
unless they met the threshold of 75 percent of the 75 points; that is, 56.25
points .... The concern that the evaluators might be affected by the price if
they knew it before they considered the technical aspects of the proposal
could easily have been met by simply not opening the price envelope until
after the Schedule B evaluation.
…
Was the City’s decision not to consider price unless a proposal earned 75
percent of the marks available on the assessment reasonable? The City’s
purchasing policy specifies that quality and price are to be considered. The
City responds by saying that may be the policy, but they were entitled to
vary from that policy in this instance. The City responds that this was clear
to anybody presenting a proposal, and that all proponents were treated
equally.
…
Although they were entitled to select the process and I should not interfere
with that decision, the process they selected had the potential to produce
an absurd result; that is, one proponent might receive 74 percent of the
marks on the assessment and another 76 percent. The price of the first
proposal would not even be considered. However, price was good for 25
marks out of 100. If the proponent that scored 74 on the assessment had
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the best price, they might attain 25 marks. If the proponent that received
76 percent on the assessment had the worse price, they might receive
significantly less than 25 marks. If that were the case, the proponent who
scored 74 marks on the assessment would be the best proposal.
… in this case I find that the multi-stage process was unreasonable. I find
that the committee was attempting to create a process which would be as
objective as possible. I find the committee was trying to create a process in
which price would not influence the technical evaluation. However, in doing
so and imposing the 75 percent requirement on the evaluation process,
before price would even be considered, they effectively tied their hands or
blinded themselves to the issue of price, even though a proposal might meet
all of the mandatory requirements. This was more than simply assigning a
certain weight to price. This had the effect of eliminating price in its
entirety. This was a significant project involving many millions of dollars.
The process chosen by the committee would have eliminated the
consideration of price even if a proponent had only missed the cut-off by 1
or 2 points. It is hard to understand how that is reasonable when decisions
are being made about how to spend somebody else’s money; that is, the tax
payers’ money.
The Court remitted the decision to award the contract back to the City in order to re-consider
their decision after considering the prices submitted by the parties. The Court indicated that
the City still had the discretion to decide who they wished to award the contract despite price
and noted that the RFP gave the City significant discretion in that respect.
While the precedential impact of this case may be lessened by the fact that the parties had
agreed to judicial review and that the City was under a duty of fairness in relation to its RFP, in
the context of this paper, this case is nevertheless of particular interest for the following:
▪ This case arose in the context of an RFP, where normal remedies for breach of
Contract A were not available.
▪ The Court considered the City’s purchasing policy, although the Court appears to
have recognized that the City could use a process that differed from its own
policy.
▪ The case highlights some of the risks associated with using a point system to
evaluate proposals.
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IV. CONCLUSION
Many of the potential ‘non-Contract A’ legal issues relating to local government procurement
have only recently begun to emerge. Trade agreements are relatively new and it is unclear how
far the Provincial government will go in enforcing these agreements in respect of local
governments. It also remains unclear how the Province will deal with complaints against local
governments for non-compliance with trade agreements. We are also beginning to see legal
challenges in cases where a local government uses a non-Contract A procurement process or
where it includes liability waivers in its tender documents. While these kinds of challenges may
not ultimately lead to damages awards against local government, they can certainly slow down
the procurement process and create pressure on local government procurement practices.
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SAUCE FOR THE GANDER:
CONFLICT OF INTEREST FOR ELECTED OFFICIALS AND EMPLOYEES
DECEMBER 3, 2010
Stephanie James and Joanna Track
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SAUCE FOR THE GANDER: CONFLICT OF INTEREST FOR ELECTED OFFICIALS AND
EMPLOYEES
I. INTRODUCTION
Most local government elected officials and employees are aware that the Community Charter
contains a comprehensive set of rules with respect to the management of officials’ conflicts of
interest. While these provisions undoubtedly serve to improve public confidence in the
administration of local government, the phrase “conflict of interest” often bears an undeserved
stigma. Officials sometimes seem reluctant to address conflicts, perhaps due to confusion
about the statutory regime and the consequences of failing to comply with it.
In this paper, we provide a general overview of the conflict of interest provisions of the
Community Charter applicable to municipal councillors and regional district board members.
We review elected officials’ disclosure requirements and the resulting list of activities that are
prohibited if an official has a conflict of interest, including participation in local government
meetings and votes, inside and outside influence, and the use of confidential information.
Of course, elected officials are not the only local government actors who may find themselves
in situations involving conflicting loyalties. In the second portion of this paper we highlight the
duties of employees that generally mirror those provisions of the Community Charter applicable
to similar misconduct by elected officials. Evidently, what is sauce for the goose is sauce for the
gander.
Last, we discuss some specific conflict of interest rules found in the Society Act, the Business
Corporations Act and the Criminal Code, which apply to both local government elected officials
and employees.
II. CONFLICT OF INTEREST AND THE LOCAL GOVERNMENT ELECTED OFFICIAL
A. Introduction to Conflict of Interest: The Legislative Framework
The rules in Division 6 of Part 4 of the Community Charter provide a procedure for elected
officials to declare both pecuniary and non‐pecuniary conflicts to the council or the board,
leave the meeting, and refrain from attempting to influence the voting on the question. There
is a disqualification penalty for officials who fail to declare a pecuniary interest in a matter. In
the case of a non‐pecuniary conflict, the statute provides no individual consequences for the
member but the decision of the council or the board may be vulnerable, particularly where the
member casts a deciding vote. Division 6 of Part 4 of the Charter also applies to regional
districts (see section 787.1(1) of the Local Government Act).
Rather unfortunately, the conflict of interest provisions of the Charter are often viewed by
elected officials as punitive provisions designed to stigmatize those who find themselves in
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conflict of interest situations. This perception has led some elected officials to avoid making a
conflict of interest declaration when one is clearly required, in order to avoid the stigma
associated with making a declaration. In fact, the conflict of interest provisions are procedural
rules designed to acknowledge that elected officials who have been actively engaged in their
communities in a range of capacities will inevitably encounter conflict of interest situations,
through which they require clear statutory procedures to navigate.
B. Disclosure of Conflict of Interest
Subsection 100(2) of the Community Charter generally prohibits an official from participating in
matters in which he or she has either a pecuniary or “another” conflict of interest:
100(2) If a council member attending a meeting considers that he
or she is not entitled to participate in the discussion of a
matter, or to vote on a question in respect of a matter,
because the member has
(a) a direct or indirect pecuniary interest in the matter,
or
(b) another interest in the matter that constitutes a
conflict of interest,
the member must declare this and state in general terms
the reason why the member considers this to be the case.
The Charter does not actually define conflict of interest situations, merely requiring that
officials who find themselves in such situations conduct themselves in a prescribed way.
Subsection 100(2) applies to both direct and indirect pecuniary interests and to non‐pecuniary
interests.
Pecuniary Conflict of Interest
A pecuniary interest is a financial interest. A direct pecuniary interest would include, for
example, the interest of an official in a business licence application for a business of which she
is the owner. An indirect pecuniary interest would include, for example, the interest of an
official in a business licence application for a business of which her financially dependent son is
the owner.
In determining whether a pecuniary interest exists, the court will construe sections 100 to 102
of the Charter “in a manner which is consistent with the apparent intent of the Legislature to
hold councillors to a high level [of] objectivity free of pecuniary interest” (Godfrey v. Bird, 2005
BCSC 626).
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Non‐Pecuniary Conflict of Interest
Non‐pecuniary interests exist at common law where a member of the public with knowledge of
the relevant facts would conclude that the personal interest of an official is capable of
influencing his or her vote one way or another. The general language in subsection 100(2)(b)
has been broadly interpreted by courts to uphold the key principle of natural justice that no
person should be a judge in his or her own case. The common law test for a disqualifying non‐
pecuniary conflict of interest is found in the Supreme Court of Canada’s decision in Old St.
Boniface v. Winnipeg (1990), 75 D.L.R. (4th) 385. Discussing the impact of an elected official’s
personal interest, the Court held:
It is not part of the job description that municipal councillors be
personally interested in matters that come before them beyond
the interest that they have in common with the other citizens in
the municipality. Where such an interest is found, both by
common law and by statute, a member of Council is disqualified if
the interest is so related to the exercise of public duty that a
reasonably well‐informed person would conclude that the interest
might influence the exercise of that duty. This is commonly
referred to as a conflict of interest.
It is important to note that the above test is not whether the interest “would” influence the
official. Rather, the test is whether a reasonable person would think that the interest “might”
influence the official. The test turns on the appearance of bias, not whether there is evidence
of actual bias. If an informed, reasonable person could view that official’s personal interest as
capable of affecting his or her judgment, then the personal interest test is met and there is an
apprehension of bias sufficient to constitute “another” conflict of interest. It is irrelevant that
an official feels he or she can be open‐minded and fair.
When looking at whether a reasonable person would conclude that the interest might influence
the elected official, a Court is likely to consider how substantial the outside interest is, how
unique it is to the official (i.e. does the rest of the community hold the same interest) and how
directly connected it is to the subject matter before the council or board for consideration.
These three variables were articulated by the B.C. Supreme Court in Watson v. Burnaby (1994),
22 M.P.L.R. (2d) 136, where the Court found a councillor who was also a Mason did not have a
disqualifying conflict of interest when a historical society requested City approval to construct a
replica Masonic lodge on City‐owned lands. The Court noted that the councillor was not a
member of the historical society, the building was more connected to City history than to
Masonic history, and that the building would be beneficial to all residents of the City regardless
of their religious or other affiliations.
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C. Restrictions on Participation
The Community Charter requires an elected official attending at a meeting who considers that
he or she is not entitled to participate in the discussion of a matter, or to vote on a question in
respect of a matter due to a conflict, to declare the conflict and to state “in general terms” the
reason that he or she considers a conflict exists. The minutes of the meeting must record the
statement, including the reason, as well as the time of the member’s departure from and return
to the meeting. The member must then leave the meeting and must not do anything referred
to in subsection 101(2):
101(2) The council member must not:
(a) remain or attend at any part of a meeting referred
to in section 100(1) during which the matter is
under consideration;
(b) participate in any discussion of the matter at such a
meeting;
(c) vote on a question in respect of the matter at such
a meeting; or
(d) attempt in any way, whether before, during or
after such a meeting, to influence the voting on any
question in respect of the matter.
Thus, the member must leave the meeting and must not participate in any way or attempt to
influence the voting on the matter. These rules prevent the member from remaining in the
meeting room during the discussion of the matter in any capacity, although he or she may
remain in the building. The mayor or chair or other person presiding at the meeting has a duty
to ensure that the member is not present during the discussion of the matter in question.
It is significant to note that the restrictions on participation apply regardless or whether or not
the official has made the required declaration under section 100(2).
Section 101(3) provides that a person who contravenes the restrictions contained in subsection
(2) and participates in council or board business with respect to a matter in which he or she has
a pecuniary conflict of interest is subject to disqualification from office. An official who
participates in council or board business in which he or she has a non‐pecuniary conflict of
interest (“another” interest) is not subject to disqualification but his or her vote may be
discounted and therefore any decision on the matter could be rendered void.
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An elected official who declares a conflict of interest and subsequently receives legal advice to
the effect that he or she does not in fact have a conflict of interest may withdraw a declaration
made under subsection 100(2) and resume participation. This provision permits an official to
participate when the matter comes up again at a subsequent meeting, and seems designed to
encourage officials to err on the side of caution in their initial assessments of whether they
have a conflict of interest, as the declaration is ultimately revocable.
D. Restrictions on Inside and Outside Influence
The Charter prohibits attempts by elected officials to influence decisions, recommendations, or
other actions by an officer or employee or a delegate of the council or board, on a matter in
which he or she has a direct or indirect pecuniary interest. Section 102 reads:
102(1) A council member must not use his or her office to
attempt to influence in any way a decision,
recommendation or other action to be made or taken
(a) at a meeting referred to in section 100(1)
[disclosure of conflict],
(b) by an officer or an employee of the municipality, or
(c) by a delegate under section 154 [delegation of
council authority],
if the member has a direct or indirect pecuniary interest in
the matter to which the decision, recommendation or
other action relates.
Elected officials are also prohibited from using their office to influence decisions made by
persons outside the local government organization. Section 103 provides that a member must
not use his or her office to attempt to influence in any way a decision, recommendation or
action to be made or taken by any other person or body, if the member has a direct or indirect
pecuniary interest in the matter to which the decision, recommendation or other action relates.
The typical example of using one’s office inappropriately in such matters is lobbying an external
decision‐maker in a letter written on the local government’s letterhead, or sending one’s local
government business card with a letter written on personal letterhead. The scope of the
prohibition is very broad and includes making representations to any governmental or non‐
governmental decision‐maker in a matter in which one has a financial interest.
Both sections 102 and 103 go on to provide that a person who contravenes that section is
disqualified from holding office, unless the contravention was done inadvertently or because of
an error in judgment made in good faith.
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E. Exceptions To Conflict Restrictions
According to section 104 of the Charter, the conflict of interest rules found in sections 100 to
103 do not apply if certain circumstances apply, meaning that the obligation to disclose a
conflict, the restrictions on participation, and the prohibitions on inside and outside influence
do not apply in prescribed circumstances:
104(1) Sections 100 to 103 do not apply if one or more of the
following circumstances applies:
(a) the pecuniary interest of the council member is a
pecuniary interest in common with electors of the
municipality generally;
(b) in the case of a matter that relates to a local
service, the pecuniary interest of the council
member is in common with other persons who are
or would be liable for the local service tax;
(c) the matter relates to remuneration, expenses or
benefits payable to one or more council members
in relation to their duties as council members;
(d) the pecuniary interest is so remote or insignificant
that it cannot reasonably be regarded as likely to
influence the member in relation to the matter;
(e) the pecuniary interest is of a nature prescribed by
regulation.
As per subsection (a), the conflict of interest rules do not apply in the case of a pecuniary
interest that an elected official has in common with electors of the local government generally,
and an equivalent exception may be applied in relation to common law conflicts. This
exception is often called the “community of interest” exception, and is described as a “matter
of practical necessity as well as communal democracy” (Guimond v. Sornberger, [1980] A.J. No.
650). The standard example of this exception is the adoption of the annual property tax bylaw
under section 197 of the Charter, a matter in which every official who owns real property
within the local government has a direct pecuniary interest.
Although the courts have not defined precisely what will constitute a sufficient community of
interest so as to excuse a pecuniary conflict, the decision in Godfrey v. Bird, 2005 BCSC 626 does
provide some helpful parameters for consideration. The case concerned a council member (Mr.
Bird) who worked as a real estate agent and had numerous business associations with a
developer. One of the council matters in which Mr. Bird participated was a zoning amendment
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application affecting 48 properties, including one that Mr. Bird planned to sell to the developer.
The municipality had received a legal opinion that, in general, if there are fewer than 100
parcels in an affected area, council members who had an interest in that area should not
assume that there is a sufficient community of interest such that subsection 104(1)(a) would
apply to them. Mr. Bird participated in the discussion of and voting on the application and, in
proceedings commenced by a group of electors to declare his Council seat vacant, attempted to
rely on the “community of interest” exception. The Court concluded:
Similarly, I can not reach the conclusion that Mr. Bird was correct
in concluding that he could participate because he had an interest
which was “in common with the electors of the municipality
generally”. Sections 100 through 103 of the Act do not apply if
there is a finding that a councillor has a pecuniary interest and if
the Court can also conclude that the pecuniary interest is “in
common with the electors of the municipality generally”. I find
that, if Mr. Bird did have direct or indirect pecuniary interest, then
that pecuniary interest was not “in common with the electors of
the municipality generally”. Mr. Bird knew throughout that it was
the opinion of the solicitors for the District that, in order for a
councillor to have a pecuniary interest in common with the
electors of the District generally, it would be necessary for the
pecuniary interest to relate to in excess of 100 properties. To the
knowledge of Mr. Bird, the Ardmore Property was one of less than
50 properties within the District that were being considered by
the Committee and Council. Without assuming that less than 100
properties in any municipality will mark the boundary between an
interest “in common with the electors of the municipality
generally” and an interest which is not “in common”, I am
satisfied that the solicitors for the District were correct in
concluding that 100 properties would be the appropriate
“boundary” for this District.
The Court’s qualification on the application of a “100 properties” guideline for the community
of interest exception is likely an acknowledgment that the guideline may vary with the
population of the community. North Saanich, the community in question in Godfrey, had a
population of approximately 11,000.
As per subsection (d), the conflict of interest rules do not apply in respect of a pecuniary
interest if it is so remote or insignificant that it cannot reasonably be regarded as likely to
influence the official on the matter in question. The “insignificance” exception is also based on
the common law and may be difficult to apply, as the courts have found that surprisingly small
amounts of money are not insignificant in the context of municipal conflict of interest law.
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Subsection 104(2) goes on to provide that, if an official has a legal right to make
representations to the council or board in his or her private capacity and is prohibited by the
conflict of interest rules from exercising that right, the member may appoint another person to
make representations on that member’s behalf.
F. Disclosure of Gifts
Related to the restrictions on participating in certain matters where an elected official has a
pecuniary conflict of interest, section 105 of the Charter provides a general prohibition on
accepting a fee, gift or personal benefit that is connected with a member’s performance of his
or her official duties. Subject to certain exceptions, the receipt of such fees, gifts, or benefits
results in disqualification from office, unless the contravention was done inadvertently or
because of an error in judgment made in good faith. According to subsection 105(2), the
prohibition on accepting gifts does not apply to:
(a) a gift or personal benefit that is received as an incident of
the protocol or social obligations that normally accompany
the responsibilities of office;
(b) compensation authorized by law; or
(c) a lawful contribution made to a member who is a
candidate for election to a local government.
However, according to section 106, if an official receives a gift or personal benefit of a type
permitted by subsection 105(2) that exceeds $250 in value, or the total of such gifts and
benefits received from one source in any 12 month period exceeds $250, the official must file
with the corporate officer a disclosure statement indicating the nature of the gift or benefit, its
source, when it was received, and the circumstances under which it was given and accepted. A
failure to properly disclose such gifts and benefits results in disqualification from office, unless
the contravention was done inadvertently or because of an error in judgment made in good
faith.
G. Disclosure of Contracts
Under section 107 of the Charter current and former elected officials have a duty to report to
the local government any contracts with the local government in which they have a direct or
indirect pecuniary interest. The local government then has a duty to report the existence of
such a contract as soon as reasonably practicable at a council or board meeting that is open to
the public.
If an official fails to report the existence of a contract, he or she is disqualified from holding
office, unless the contravention was done inadvertently or because of an error in judgment
made in good faith. However, even if an officer does fail to report, the local government is still
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responsible for reporting the contract under subsection 107(1). Thus the local government is
responsible for knowing, when it enters into the contract, what persons have a direct or
indirect pecuniary interest in the contract.
H. Restrictions on Use of Insider Information
Current and former elected officials, regardless of how much time has elapsed since the end of
their terms of office, are prohibited from using information that was obtained in the
performance of their official duties and that is not available to the general public, to gain or
further a direct or indirect pecuniary interest.
The consequence for officials presently in office is disqualification, unless the contravention
was done inadvertently or because of an error in judgment made in good faith.
Another consequence, which applies to both current and former officials, is found in section
109 of the Charter. Section 109 provides for a Supreme Court order that an official who has
contravened Division 6 of Part 4 of the Community Charter and who has realized financial gain
in relation to that contravention must pay to the local government all or part of that financial
gain. Either the corporation or an elector may apply for such an order. If an elector makes the
application and is successful, the local government must pay the elector’s costs in the Rules of
Court scale of costs, although the Court may order another party, including the current of
former official, to reimburse the local government.
III. CONFLICT OF INTEREST AND THE LOCAL GOVERNMENT EMPLOYEE
We are often asked by local government employees whether the Community Charter conflict of
interest provisions apply to their conduct. The short answer is no, they do not. While
employees are not covered by Part 4, Divisions 6 and 7 of the Community Charter, they do have
similar codes of conduct regulating their relationships with their local government employers.
These codes originate in employees’ implied duty of loyalty to their employers and their
express duties under their employment contracts and applicable workplace and other
professional regulatory statutes.
A. Implied Duty of Loyalty
Courts consistently find that employees (both unionized and non‐unionized) owe their
employers a comprehensive and broadly defined duty of loyalty. As vestiges of feudal master‐
servant law, this duty has been characterized in many different ways, including the duty of
fidelity or the duty to act in good faith. This duty has been described as:
[…] the implied duty of fidelity provides the courts with a
convenient ‘catch‐all’ instrument for protecting the employer’s
trading and business interests against what is considered, in the
circumstances of each case, to be improper and unduly damaging
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conduct on the part of the employee. The law in the area can be
uncertain and fluid, as the courts seek to strike a balance of
proportionality between protecting the interests of the employer,
the employee and the general public. (England, G., Employment
Law in Canada, 4th Ed., Vol. 2, s.11.122)
In short, the duty is to advance the employer’s business interests. By extension, an employee
cannot advance his or her personal interest to the detriment of the employer’s interest. An
employee’s discharge of this duty is called into question when his or her ability to further the
employer’s objectives and goals is jeopardized by the existence of a personal relationship or
other employment or volunteer activities, by the acceptance of some improper benefit, or by
the misuse of the employer’s resources, including its confidential information.
Inappropriate Relationships
A review of the municipal conflict of interest cases suggests that elected officials’ participation
in council or board matters is often challenged on the basis that the official has a conflict of
interest because of his or her family or personal relationships. These conflicts can be both
pecuniary and non‐pecuniary. In the employment context, many conflict of interest policies
address these relationships as well. Again, the overriding concern is that employees ought not
to be in a position where they might—or a reasonable person thinks they might—advance the
interests of a family member or friend rather than those of the employer. Like elected officials,
employees are also under disclosure obligations and must promptly and fully inform their
supervisors of any conflict situations in which they may find themselves.
For example, in Toronto (2002), 107 L.A.C. (4th) (Davie) the City terminated a clerk in its
community welfare department for breaches of the City’s conflict of interest policy. The City
alleged that the clerk, who processed welfare applications, breached that policy by helping her
son secure welfare benefits and then by accepting rent from him while he was in receipt of
those benefits. The evidence suggested that she misrepresented financial information on her
mortgage application, her son’s car loan application, and various other financial transactions.
The employee said that she had repeatedly disclosed to her supervisors that her son was
receiving welfare. The labour arbitrator noted that the employee’s alleged partial disclosure,
even if it really occurred, still failed to satisfy her duty to fully and frankly disclose all relevant
information about a conflict of interest or perceived conflict to her supervisors, which in this
case required disclosure of the fact that her son was living with her and paying her rent:
The grievor's response that her supervisors "didn't ask" about
these matters does not absolve the grievor's conduct. The fact
that a Supervisor did not ask a particular question does not excuse
or explain the grievor's failure to be full and frank in her disclosure
of the conflict of interest. The requirement to disclose a conflict
lies with the employee who has all the facts. In declaring a conflict
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of interest an employee cannot be selective about disclosing all
the facts, and cannot pick and choose to disclose only that
information which the employee thinks is necessary. (para. 72)
A clandestine three year office romance between a manager and someone he supervised led to
the manager’s employment being terminated with cause in Carroll v. Emco Corp., 2006 BCSC
861, aff’d 2007 BCCA 186. During their romance, Mr. Caroll conducted his girlfriend’s
performance reviews, awarded her pay increases, imposed discipline on her, and promoted her
within the branch. He also repeatedly denied the affair when asked about it by his superiors.
The trial judge and the Court of Appeal agreed that his conduct in failing to appropriately
address the conflict of interest that arose when he engaged in a personal relationship with a
subordinate violated his common law duty of fidelity to the employer.
Conflicting Jobs or Volunteer Activities
Many employees’ conflict of interest predicaments arise because of second jobs or volunteer
activities, the pursuit of which is at odds with their duty to advance their employers’ interests.
These cases are often difficult to resolve because courts and arbitrators tend to take a narrow
view of an employer’s right to discipline or impose other employment sanctions in respect of an
employee’s off‐duty conduct.
In Ontario (2006), 153 L.A.C. (4th) 385 (Petryshen), a senior Ministry of Health employee was
terminated because of his active involvement in a community foundation he established to
voice his concerns about ageism in the delivery of health care services. He persisted with his
prominent involvement in the foundation despite repeated demands from the Deputy Minister
that he cease such volunteer work because of the Deputy Minister’s concerns that it gave rise
to a perceived conflict of interest. The employee argued strenuously that the Deputy Minister’s
demands infringed his rights under the Charter of Rights and Freedoms. The arbitrator
ultimately concluded that the Ministry’s conflict of interest code did violate the employee’s
Charter rights but the policy was a reasonable limit on those rights in the circumstances. The
arbitrator was careful to describe the concern as one of a perceived conflict of interest, using
language similar to that used by courts when considering allegations of conflict of interest for
elected officials:
Although there is no indication that Mr. Globerman's views on
how the health care system treats the elderly has an impact on
how he performs his duties as a senior financial consultant, a
reasonable perception is that the recommendations he makes to
senior management in the Ministry might be influenced by his
private advocacy role with the Foundation. […]
The identification of Mr. Globerman as a public servant with the
Ministry creates a reasonable prospect that people would believe
that the Foundation has an advantage over other charities
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because he has access to information and individuals which
others outside of Government do not. Whatever his reason for
identifying himself as a public servant with the Ministry, a
reasonable perception is that the Foundation, his private interest,
benefits from such a connection. (paras. 63‐64)
Presumably the fact that the employee also lied to the Deputy Minister by stating that he had
withdrawn from the foundation when in fact he had not, did little to help his cause. The
arbitrator upheld the Ministry’s decision to terminate Mr. Globerman.
In New Westminster (1991), 18 LAC (4th) 396, the City denied one of its firefighters a promotion
based on his ownership of a fire protection supply firm, which the City’s hiring panel considered
to be in conflict with the duties of the Chief responsible for the department’s fire prevention
division. Interestingly, the City was fully aware of the side business as the employee had been
operating it for several years while working as a firefighter in the City’s fire suppression division,
but had not developed any express conflict of interest policy during that time. Further, the
employee offered to divest himself of all his interests in the company if he was awarded the
position. The arbitrator found that no express conflict of interest rule or policy was necessary,
and that the employee’s late‐in‐the‐day offer to sell his interest in the company would not be
enough to resolve the continuing perceived conflict of interest.
In a more recent labour arbitration decision, two public works foremen were terminated when
the City learned that they instructed labourers under their supervision to perform work, while
on duty, for a client of the foremen’s private business (City of Regina (2008), 176 L.A.C. (4th) 359
(Stevenson)). The arbitration panel found their conduct constituted time theft and the
misappropriation of City resources and materials, all of which were contraventions of the City’s
code of conduct. However, the arbitration panel found that the City failed to establish evidence
of a “widespread problem associated with improper conduct or abuse of the trust relationship”.
The Panel also concluded that the City had not taken sufficient steps to notify its employees,
including the two foremen, of its emphasis on public accountability. The panel reinstated the
two employees and substituted six‐month suspensions.
In Rupert v. Greater Victoria School District No. 61, 2001 BCSC 700, aff’d 2003 BCCA, the court
considered whether Mr. Rupert gave the School District just cause to terminate his
employment by operating a private company and passing it off as affiliated with or sanctioned
by the School District. Mr. Rupert was responsible for all aspects of the School District’s
international student program. While the Court characterized several things Mr. Roper did in
the course of his employment as “clear examples of bad judgment”, it was his operation of a
private holiday program for participants in the School District’s international student program
that the Court found gave the School District cause to terminate his employment. He used
School District letterhead and documents to help sell these holidays, giving the impression they
were School District programs. He also misled his colleagues into thinking the holiday program
was part of the School District’s international student program so that he could rent facilities
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from the School District at reduced rental rates. His acts of misappropriating School District
supplies and misleading its students, all the while misrepresenting the nature of the holiday
program to his colleagues, constituted serious breaches of his duty of fidelity to his employer.
Mr. Rupert’s wrongful dismissal claim was dismissed, and the School District’s counterclaim for
$45,000 in damages, being the amount of profit Mr. Rupert made from his holiday business,
was allowed.
Gifts
In New Brunswick (Department of Public Safety) (2008), 172 L.A.C. (4th) 266 (McEvoy), a
commercial vehicle inspector and part‐time investigative coroner who accepted cash payments
from the funeral homes with whom he interacted in the course of his job was disciplined for
breaching his duty of loyalty and fidelity. In upholding a relatively minor suspension, the
arbitrator noted that the total amount received ($120, paid $20 at a time) was minimal and that
the employee did not solicit the payments. The employee testified that these occasional
payments did not result in him treating the funeral home any differently that he normally
would in the execution of his coroner duties. He also stated that the situation was quite unlike
the more explicit—and expensive—bribes he was offered, but refused, in the course of his
other duties as a commercial vehicle inspector and apparently this was a wide‐spread practice
amongst the coroners’ service. He noted that he had not been charged with any criminal
offences arising from the misconduct whereas some of his coworkers had. In light of all of these
factors, the arbitrator concluded that the employee’s misconduct was not so egregious as to
give the employer just cause to terminate his employment.
In the non‐union setting, a manager in General Motors’ paint shop with 25 years of service was
dismissed with cause for accepting a private loan from a client during a time of personal
financial distress (Connolly v. General Motors of Canada, [1993] O.J. No. 2811 (Ont. Ct. GD)).
The trial court dismissed his wrongful dismissal action, finding that his acceptance of the loan
violated the plant’s extensive conflict of interest policy, which contained an express prohibition
on accepting loans from clients or customers. The court noted the following:
1. the fact that the employee did not realize his actions were problematic was, at
best, a mitigating factor—the conduct should be viewed objectively;
2. the fact that the customer supplying the loan did not receive any benefit, and
the employer did not suffer any quantifiable loss, was irrelevant; and
3. the existence or non‐existence of any actual conflict of interest is irrelevant—a
possible conflict, or even an appearance of conflict, is equally problematic.
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Inside Influence
Employees who exercise discretion in the conduct of their job duties ought not to be involved
with processing or adjudicating matters in which they have a direct pecuniary or non‐pecuniary
interest. For example, a municipal parking control officer was found to have acted improperly
in “disposing” of three parking tickets issued to him by his own municipality (Ottawa (1993), 34
L.A.C. (4th) 177 (Fraser)). The arbitration panel noted:
We find that the position of parking control officer, and clearly
that of a senior officer who may do prosecutions, involves a
position of trust. The removal of tickets by the grievor for his own
benefit unquestionably constitutes a breach of that trust and, as a
consequence, he would no longer be suitable as someone trusted
to issue tickets. He is also quite unsuitable to perform any
prosecuting function, which is part of a quasi‐criminal process
requiring not only trust but also an impartial use of the discretion
that is normally found in such functions. […] (para. 13)
In a similar vein, the property assessor who decreased his own property’s assessment and that
of his step‐mother’s property, decreased his girlfriend’s property assessment, and tampered
with his ex‐wife’s property assessment by changing the age of the home, eliminating an
exemption code and increasing the assessed value, was found to have acted contrary to his
implied duty of loyalty and the employer’s code of conduct (Municipal Property Assessment
Corp. (2008), 170 L.A.C. (4th) 259 (Tacon)). The employee argued that he was just adjusting the
property values to preserve “data integrity”. The arbitrator found that even if there was a
legitimate error in the properties’ assessments, it was inappropriate and contrary to the conflict
of interest policy or code for him to make those adjustments:
[…] the conflict of interest provisions preclude an individual
implementing such reassessments even if accurate. The
information is to be passed on to an appropriate assessor or
manager. To do otherwise is to create a perceived conflict of
interest: to an objective viewer, the involvement of an employee
in changing data for properties in which he/she has an interest or
in which a relative has an interest undermines MPAC's reputation
for impartiality, a core value of the corporation. (para. 68)
Accessing/Disclosing Confidential Information
As discussed above, the Community Charter prohibits elected officials from misusing
confidential information they receive in the course of their duties as elected officials (ss. 108,
117). Employees are under a similar duty, and violating the duty to maintain an employer’s
confidences is often characterized by courts and labour arbitrators as a serious act of
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dishonesty that can frustrate the employment relationship, thus giving rise to just cause for
discipline and termination.
A municipal employee working in the police detachment learned the hard way that a workplace
policy prohibiting unauthorized access to information on the Canadian Police Information
Centre (CPIC) database was not to be taken lightly. Contrary to the policy, the employee in
Cape Breton (Regional Municipality) (2001), 105 L.A.C. (4th) 169 used a police officer’s name to
run a search on her new boyfriend to see if he had a criminal record. Although the arbitrator
overturned the municipality’s decision to terminate her employment, a one year suspension
was substituted in its place.
An executive assistant working for the ministry responsible for administering a spousal and
child support payment enforcement program similarly crossed the line when she ruined a
provincial political candidate’s campaign by leaking confidential information revealing that he
owed substantial support payments. An arbitration panel upheld her dismissal in Alberta
(Department of Justice) (2006), 154 L.A.C. (4th) 183 (Sims).
A municipal employee in West Grey Police Services Board (2005), 146 L.A.C. (4th) 111 (Kirkwood)
was terminated for disclosing confidential schematics and other proprietary information she
received from one proponent to another in the process of managing a competitive
procurement process. She also purposefully slanted her report to the board making the final
procurement decision, all apparently with the goal of persuading the board to select the
proponent she thought most capable of doing the job. Finding “the legitimacy and the
desirability of the goal does not legitimize or make any means acceptable” (para. 127), the
arbitrator found that the employee’s conduct breached her duty of loyalty to the board and
warranted very serious discipline. The arbitrator reinstated the employee but substituted an
unpaid suspension from the date of termination to the date of reinstatement, which was over
two years.
B. Express Duties
In addition to the implied duties of fidelity, loyalty and good faith, employee conduct is also
regulated by various express duties.
Contractual Provisions
Many local government employees have written employment contracts setting out the terms
and conditions of the employment relationship. Some contracts contain express language
acknowledging the employee’s duty to the local government, including provisions restricting
the employee’s ability to pursue additional employment. Contracts for senior employees often
include a restriction on the use of confidential information obtained in the course of
employment.
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Workplace Statutes
Many employment‐related statutes apply not only to local governments in their corporate
capacity but also to individual agents of local governments, including their officers and
employees. For example, individuals can be found personally liable for breaches of the codes of
conduct contained in the Human Rights Code, the Employment Standards Act, the Labour
Relations Code, the Workers Compensation Act and various other general application statutes
that regulate workers and workplaces. A violation of one of these statutes may constitute a
conflict of interest under an employer’s policies or otherwise constitute a breach of implied or
express contractual duties, thereby resulting in adverse employment consequences in addition
to any statutory liability.
Self‐Regulating Professions
Local government employees who are members of a self‐regulating profession also may have
express duties under provincial legislation and codes of conduct adopted by their professional
organizations. Accountants, architects, building officials, engineers and geoscientists, forest
professionals, land surveyors, lawyers, notaries, and police officers and are examples of
employees regulated by provincial statutes and codes of conduct adopted by their professional
organizations. Planners, while not regulated by a provincial statute, are also subject to a code
of conduct as a condition of membership in their professional organization.
For example:
1. The Association of Professional Engineers and Geoscientists of British Columbia’s
Code of Ethics requires its members to: “act as faithful agents of their clients or
employers, maintain confidentiality and avoid a conflict of interest but, where
such conflict arises, fully disclose the circumstances without delay to the
employer or client.”
2. The Planning Institute of British Columbia’s bylaws include a Code of Professional
Conduct that requires members to: “ensure full disclosure to a client or
employer of a possible conflict of interest arising from the Member’s private or
professional activities.”
3. The Building Officials’ Association of British Columbia’s bylaws include Rules of
Professional Conduct that require members to: “discharge all duties owed to the
Member's employer, the Province, other members of the profession and the
public, honestly, impartially, competently and without interference or undue
delay.”
To the extent that professional designation or membership in a particular organization is a
requirement of a person’s job, failure to maintain that designation or membership may amount
to cause to discipline or dismiss that employee.
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Statutory Decision‐Makers
As a result of their independent statutory status, some local government employees have a
duty to uphold certain principles or interests that may, on occasion, be at odds with their
employers’ actual or perceived interests. For example, the office of a subdivision approving
officer is a designation independent of a local government and the person holding that office
must exercise independent decision‐making when performing his or her duties under the Land
Title Act regardless of that person’s affiliation with or employment by a local government.
Election officers under the Local Government Act and information heads under the Freedom of
Information and Protection of Privacy Act are similar examples of statutorily required offices
often held by individuals otherwise employed by a local government.
While these employees must identify to whom they owe a duty in any given situation, in reality
they often perform their dual roles with little friction. This highlights the fact that the wearing
of more than one hat, so to speak, does not always result in a conflict of interest and that a
case‐by‐case analysis is necessary to determine when those individuals cannot or should not be
involved with a particular decision.
C. Consequences of Breaches of the Duty of Loyalty
As the above cases and labour arbitration decisions highlight, an employee whose conduct is at
odds with his or her duty to the employer faces negative employment consequences. Like the
elected official who might be disqualified from holding office for violating the Community
Charter’s code of conduct, an employee who engages in activity that is found to be an
impermissible conflict of interest might be terminated on a with cause basis. Particularly in the
union setting, lesser discipline (such as a warnings, or a suspension) may be issued, depending
on the severity of the offence and the other criteria employers and labour arbitrators normally
consider when addressing employment misconduct.
Unlike some of the other remedies described below, existence of an actual benefit to the
employee or loss to the employer is not a prerequisite to the legitimate imposition of discipline
or to an employer’s finding of just cause for termination.
While rarely exercised, an employer whose employee’s misconduct results in either a loss of
profit to the employer or financial gain to the employee also has contractual and equitable
remedies. A court may grant an injunction to prohibit the employee (or, more likely, the former
employee) from engaging in certain conduct, such as misusing confidential information, to
advance a personal project. A court may also require the employee or former employee to
repay any damages (such as lost profit) to the employer or issue an order of disgorgement that
requires the employee or former employee to account for any profit or benefit. The latter
remedy was successfully obtained by the School District in Rupert v. Greater Victoria School
District No. 61, a court case discussed above.
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An employee or officer who engages in improper conduct in the discharge of express statutory
duties may face penalties under the applicable statutory regime. Similarly, an employee whose
conduct violates the code of conduct for a professional organization to whom he or she belongs
faces sanction under that organization’s governing bylaws.
D. Workplace Conflict of Interest Policies
The breadth of an employee’s duty to his or her employer can result in a wide variety of “rules”
inherent in the employment relationship. We encourage employers to reduce these rules to
writing in the form a comprehensive but flexible conflict of interest policy. These policies assist
employees in identifying when they may have an ethical dilemma or conflicting loyalty that
needs to be disclosed and addressed.
Typical conflict of interest policies are remarkably similar to the conflict of interest provisions
applicable to elected officials under the Community Charter. They often address matters such
as:
▪ Inappropriate business dealings with family or friends;
▪ Conflicting second businesses and volunteer activities;
▪ Acceptance of gifts, donations or favours in the course of employment; and
▪ Misuse of the local government’s resources, including records and information.
Well‐drafted policies have a clear declaration and reporting mechanism to facilitate early
disclosure of potentially problematic situations. They also clearly warn employees that
breaches may lead to discipline up to and including dismissal. As with all policies, local
governments must take positive steps to bring a conflict of interest policy to employees’
attention, and will be well served to invest appropriate time and resources into periodic
training for those tasked with administering or enforcing the policy.
Many conflict of interest policies are paired with whistleblower protection policies to ensure
that an employee who, in good faith, reports a co‐worker’s possible conflict of interest is
protected from negative workplace consequences.
Regardless of which type of conflict of interest policy a local government adopts, conducting an
appropriate investigation of any alleged breach prior to imposing discipline is imperative.
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IV. CONFLICT OF INTEREST RULES APPLICABLE TO LOCAL GOVERNMENT ELECTED
OFFICIALS AND EMPLOYEES
A. Status as a Director of a Company or Society
Many local governments are involved in the ownership and management of corporations and
societies. When a local government elected official or employee serves as a director of such an
entity, questions about possible conflicts of interest can arise. In this section, we discuss the
relevant statutory and common law duties of directors of companies and societies, and review
the case law considering whether an elected official’s dual role gives rise to impermissible
conflicts of interests.
Directors of companies and societies are usually the individuals with control of and decision‐
making power with respect to the entity’s affairs. It is therefore not surprising that the statutes
regulating those entities contain rules aimed at avoiding certain conflicts of interest.
First, there is a stand‐alone duty for company directors to “act honestly and in good faith with a
view to the best interests of the company” and the Society Act imposes the same duty on
society directors.
Sections 27 to 29 of the Society Act require a director of a society who has an interest (direct or
indirect, pecuniary or non‐pecuniary) in a proposed contract or transaction with the society to
“disclose fully and promptly the nature and extent of the interest to each of the other
directors” (s.27). If that director profits from such a contract or transaction, he or she may be
liable to the society for that profit unless certain “savings” provisions apply, such as if the
director made full and frank disclosure in accordance with s.27, the remaining directors
approved the contract or transaction, and the affected director abstained from voting on its
approval. If directors fail to observe this required process for disclosing matters in which they
are personally interested and not participating in the approval of those matters, the members
of the society or “an interested person” can apply to the Court for relief, including an order
setting aside the impugned contract or transaction.
Directors and officers of companies have similar duties to refrain from acting in conflict with
the company’s best interest. Part 5, Division 3 of the Business Corporations Act contains a
comprehensive conflict of interest code that requires disclosure of “material” interests in
contracts and transactions that are “material” to the company. It also contains a disgorgement
mechanism similar to that applicable to society directors.
Conflicts can arise when a local government elected official or employee also sits as a director
of a company or society. One the one hand, the official or employee owes his or her local
government a duty of fidelity and loyalty and is tasked with advancing the local government’s
best interest. What is in the local government’s best interest may be adverse to what is in the
company’s or the society’s best interest. In those situations, even the possibility of a conflict, or
the perceived conflict, may be sufficient to require an elected official to declare a conflict of
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interest under the Community Charter and for both an elected official and an employee to
abstain from participation in the local government’s management of matters involving the
company or society.
Case law considering when an elected official has a conflict of interest with respect to matters
involving a company or society tends to distinguish between the following types of situations:
1. where a statute requires the local government to appoint the official to the
board of a corporation or society related to the local government or that the
local government controls (e.g. Save St. Anne’s Coalition v. Victoria (1991), 5
M.P.L.R. (2d) 331 (B.C.C.A.)); and
2. where an official sits as a director of a corporation or society unrelated to or not
controlled by the local government (e.g. Starr v. City of Calgary (1985), 52 D.L.R.
(2d) 726 (A.B.Q.B.).
In Save St. Anne’s Academy, the Provincial Capital Commission, a body established by Provincial
statute, owned a historic property that it proposed to redevelop. City Council adopted the
necessary rezoning but concerned citizens attempted to strike down the zoning bylaw on the
basis that the two councillors who were also members of the Commission had a conflict of
interest with respect to the matter. The Court of Appeal disagreed:
The structure of City Council in Victoria and the structure of the
Provincial Capital Commission, and their interrelationship, require
that there be two members of the Victoria Council involved in the
decisions of the Provincial Capital Commission and it cannot be
inherent in the structural inter‐relationship that those two
members must always disqualify themselves from any
consideration, in their capacity as councillors, of the same issues
as those raised in the deliberations of the Provincial Capital
Commission. The structure would not have been set up that way
if that result were contemplated.
In Starr, the City leased land to a company known as Calgary Exhibition and Stampede Limited.
Provisions of the company’s bylaws required it to appoint to its board of directors four
councillors chosen by the City. The City and the company proposed to enter into a new lease,
and it was alleged that the four councillors were disqualified from voting on the matter at
council meetings. The Court agreed that the councillors were disqualified not only under the
applicable municipal statute, but also at common law because their connection to the
corporation raised an apprehension of bias:
If the [councillors] are not prohibited from voting, the citizens of
Calgary may feel that alderman who have a bias in favour of the
Stampede Company due to their interests as directors of the
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Stampede Company, have coloured their views against the City.
Even a suspicion that this would take place will not be permitted.
However, we find the most common situation to be analogous to neither of the above cases:
the elected official who sits as a director of a corporation or society wholly owned and
controlled by the local government as the sole shareholder or member. In that case, there is no
obligation for the local government to appoint one of its elected officials to the board (unlike
Save St. Anne’s) but the company or society is not an unrelated entity—indeed, it is usually just
the alter‐ego of the local government (unlike Starr). In these situations, it would appear to be a
highly technical and artificial result if elected officials were prevented from participating and
voting in their elected capacity on matters involving the company or society.
B. Criminal Conflict of Interest
Elected officials should be aware that certain breaches of the conflict of interest rules may
actually amount to criminal misconduct and have repercussions under the Canadian Criminal
Code that far exceed disqualification from office.
Section 122 addresses breaches of trust by public officers. It provides that every officer who, in
connection with the duties of his office, commits fraud or a breach of trust is guilty of an
indictable offence and liable to imprisonment for a term not exceeding five years.
Section 123 sets out the offence of municipal corruption. Section 123(1) makes it an offence to
give, offer or agree to give a municipal official, or anyone for the benefit of a municipal official,
a loan, reward, advantage or benefit of any kind as consideration for the official: (a) abstaining
from voting at a meeting of the municipal council or a committee of the council, (b) voting in
favour of or against a motion or resolution, (c) aiding in procuring or preventing the adoption of
a motion or resolution, or (d) performing or failing to perform an official act. Section 123(1)
also makes it an offence for a municipal official to demand, accept or offer to accept from any
person such a loan, reward, advantage or benefit given as consideration for any of the acts
described in (a) through (d). It is an offence to influence or attempt to influence a municipal
official to do anything mentioned in (a) through (d) by suppressing the truth (in the case of a
person who is under a duty to disclose the truth), by threats or deceit, or by any unlawful
means.
In the case of R. v. Gyles, [2003] O.J. No. 3188, the accused was charged with the criminal
offences of breach of trust and municipal corruption under sections 122 and 123 of the Criminal
Code. It was alleged that the accused, who was a municipal councillor, demanded or accepted
a bribe in exchange for the exercise of his influence in obtaining rezoning for particular
properties. The first complainant sought to have a piece of property rezoned for use as a
funeral home, and arranged a meeting with the councillor with a view to obtaining his support
for the project and advice on how to obtain the rezoning. During subsequent meetings, the
complainant alleged that the councillor offered to fix things for him in return for $50,000. The
second complainant alleged that he also met with the councillor with respect to a rezoning
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application, and the councillor indicated he would help get the rezoning but that his fee would
be $25,000.
In finding the councillor guilty of breach of trust, the Court stated that the essential elements of
the charge of breach of trust that must be proved by the Crown are:
(a) the accused is an official;
(b) the impugned act was committed in connection with the duties of his office; and
(c) the act constitutes a breach of trust.
Here, it was clear that the accused was an official, as he was elected a Mississauga City
Councillor, and there was no doubt that the impugned acts of demanding or accepting a sum of
money were committed in the general context of the duties of his office. The Court found that,
in order to constitute a breach of trust, it must be shown that the councillor acted contrary to
the duty imposed on him by statute, regulation, his contract of employment or directive in
connection with his office and that the act gave him a personal benefit directly or indirectly.
There need not be real prejudice or loss to the public or the local government, nor does the
crime of breach of trust necessarily involve the idea of corruption. The advantage must flow
from the very status and office of the official. The Crown is not required to prove that any
official actions were altered as a result of the benefit.
Section 122 is sufficiently broad to ensnare the municipal official who, though performing the
duties of his office or his official acts in a perfectly appropriate manner, does so in express
return for considerations, benefits or rewards, accepted by the municipal official and offered by
a person seeking the performance of that duty or official act.
In also finding the accused guilty of municipal corruption, a rarely prosecuted offence, the Court
stated that the essential elements that must be proved by the Crown are:
(a) the accused is a municipal official;
(b) the accused demanded or accepted a benefit as consideration; and
(c) the accused accepted this consideration for voting or for procuring the adoption
of a municipal motion.
Here, the councillor both demanded and accepted money from each of the complainants, and
the Court was left to consider whether he demanded or accepted these benefits as
consideration for voting in favour of a rezoning application in the case of the first complainant,
and as consideration for aiding in procuring the adoption of a motion in the case of the second
complainant. Like section 122, section 123 does not require proof of an overtly corrupt action
by a municipal official. Preferential treatment exercised by a municipal official is sufficient on
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its own to constitute an offence under this section. The Court here concluded that the
accused’s actions, offering to support each of the rezoning applications in exchange for the
payment of money, did amount to municipal corruption contrary to section 123 of the Criminal
Code.
V. CONCLUSION
Given the breadth of elected officials’ and employees’ duties to their local government, it is
perhaps not surprising that the phrase “conflict of interest” carries some confusion. While the
individual circumstances of a situation must be carefully considered and case‐specific legal
advice is often necessary, by proceeding openly and cautiously in possible conflict situations,
elected officials and employees are less likely to be caught off guard with allegations of
improper conduct. Elected officials and employees are well served to disclose all possible
conflicts of interest early and to seek appropriate assistance navigating their various duties.
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NOTES