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Municipal Councillor Presentation


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Presentation by Perlene Morrison and Justin Milne at the 2018 Orientation Session.

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Municipal Councillor Presentation

  1. 1. Municipal Law in PEI: A primer for new Councillors Presented by: Perlene J. Morrison & Justin L. Milne December 1, 2018
  2. 2. Outline • Jurisdiction • Powers • By-law enforcement • Conflicts • Confidentiality • Personal liability • Role of Councillors • Meetings • Planning Act appeals Federation of PEI Municipalities2
  3. 3. Jurisdiction • Municipalities have only those powers which have been delegated to them by the Province. • Councils are outside their jurisdiction when: – The Province did not delegate the power the Council is exercising; – The Province unlawfully delegated the power to the Council; or – The Bylaw is inconsistent with the Constitution. Federation of PEI Municipalities3
  4. 4. Jurisdiction • A court can review for jurisdiction, and declare an action void, if the municipality acted beyond its authority. Federation of PEI Municipalities4
  5. 5. Jurisdiction Past: Limited Powers – Express and Implied Powers Rule Present: Broad Powers: •United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) The evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities… a broad and purposive approach to the interpretation of municipal powers has been embraced. Federation of PEI Municipalities5
  6. 6. Jurisdiction Past: Limited Powers – Express and Implied Powers Rule Present: Broad Powers: •Municipal Government Act, s. 10: The powers conferred on municipalities and their councils by this Act shall be interpreted broadly with the purpose of this Act… Federation of PEI Municipalities6
  7. 7. Powers • In PEI, there are two key statutes that delegate municipal powers: 1. The Municipal Government Act – Applies to all municipalities in the Province; – Replaces Municipalities Act, Charlottetown Area Municipalities Act, City of Summerside Act. 1. The Planning Act – Applies to all municipalities. Federation of PEI Municipalities7
  8. 8. Powers • Council can pass by-laws or resolutions over the matters within their jurisdiction, thereby binding the municipality. Federation of PEI Municipalities8
  9. 9. Powers • Cardinal rule: All municipal by-laws are subordinate to provincial legislation. If the bylaw cannot co-exist with provincial legislation, or if it conflicts with the purpose of the provincial legislation, they are void and of no effect, or are superseded. – Good rule of thumb: Council can pass bylaws that are stricter than provincial legislation, but not the reverse. Federation of PEI Municipalities9
  10. 10. Powers • If Council has the authority to make a by-law, it also has the power to change, revoke, or re-enact the by- law; provided it is done in good faith without interfering with rights previously acquired. Federation of PEI Municipalities10
  11. 11. Powers • Powers exercised in bad faith are void: – An attempt by Council members to gain a personal advantage; – Action that is taken for an improper, arbitrary, or unreasonable purpose; – Actions that are lacking in openness, fairness and impartiality; Federation of PEI Municipalities11
  12. 12. Powers • Examples of bad faith: – Expropriate land for illegitimate / ulterior motives; – Bylaws singling out only one property for rezoning without any legitimate planning rationale; – Acting to promote the interests of ratepayers, without more, likely not bad faith. Federation of PEI Municipalities12
  13. 13. Powers Discretion • If a by-law grants discretion, it must outline objective criteria as to how that discretion is to be exercised. • By-laws that fail to do this are outside the jurisdiction of the Council and are not a valid use of power. – E.g. decision to deny a building permit because in Council’s opinion the proposed building would not look nice. • There must be a balance between certainty and arbitrariness. Federation of PEI Municipalities13
  14. 14. By-Law Enforcement • Municipalities have the right to enforce by-laws, but are not obligated to enforce them. • Resources often dictate whether a by-law is enforced. • Enforcement of by-laws within a municipality is largely driven by resident complaints. • By-laws can create offences and prescribe penalties. • Maximum fines: – $10000 Municipal Government Act, s. 234. • Enforcement is generally either by prosecution or via injunction. Federation of PEI Municipalities14
  15. 15. By-Law Enforcement • Municipal Government Act allows municipalities to enact bylaws to appoint Bylaw Enforcement Officers, and the Act gives officers the power to enforce bylaws (s. 236). • Municipal Government Act has also expanded the areas for which municipal ticketing is available. For example: – Animal control; – Dangerous or unsightly premises; – Noise or public nuisance; – Smoking in or on municipal property; – Pesticide control. Federation of PEI Municipalities15
  16. 16. Conflicts of Interest • Section 96 of the MGA: – A council member is in a conflict of interest if the member makes a decision or participates in making a decision in the execution of his or her office while the member knows or ought to know that the member’s private interests - or the private interests of a person closely connected to the member - affected the member’s impartiality in the making of the decision. Federation of PEI Municipalities16
  17. 17. Conflicts of Interest • Conflicts include: – Member has pecuniary interest in the matter; – Member is a shareholder, officer, director or agent of a corporation that has dealings with Municipality; – Member is a party to dealings or a contract with the Municipality. Federation of PEI Municipalities17
  18. 18. Conflicts of Interest Seeing Conflicts • Councillors must recognize when there is a self interest or conflict. • In doubt? – Ask yourself: – “Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official’s public duty?” Federation of PEI Municipalities18
  19. 19. Conflicts of Interest Seeing Conflicts • IMPORTANT – A breach of the conflict of interest sections result in disqualification. See section 96(4) of the MGA. Federation of PEI Municipalities19
  20. 20. Conflicts of Interest Pecuniary Interests • If there is a pecuniary interest it must be disclosed, and it must be brought forth in every meeting in which the issue is discussed. • Pecuniary interest means an interest in a matter before Council that could monetarily affect you, a corporation, partnership, or government with which you are involved (i.e. as shareholder, director, officer, employee). Federation of PEI Municipalities20
  21. 21. Conflicts of Interest Prejudgment • There is a duty for the meetings to be fair, and to achieve this, it is necessary to have an open mind. • It should be possible to persuade a Councillor, regardless of past dealings or knowledge. • If a Councillor cannot listen objectively, he or she has a duty to disqualify himself or herself. Federation of PEI Municipalities21
  22. 22. Conflicts of Interest • Ask: – “Has the Councillor reached a final opinion on the matter which could not be dislodged?” Federation of PEI Municipalities22
  23. 23. Conflicts of Interest If you have a conflict (s. 96(3) of the MGA): • Duty to disclose the conflict. • Duty to declare the conflict. • Remove yourself: – Do not vote; – Do not participate in discussion; – Do not influence the debate or voting. • Ensure the conflict, your abstention, and the fact that you left the meeting are noted in the minutes. • Double check the minutes. Federation of PEI Municipalities23
  24. 24. Conflicts of Interest Examples of Conflicts • Where the member participated in decisions regarding: – The redevelopment of lands which were located close to the member’s father’s property; – Improving access to a shopping centre, in which the member owns a retail store; – A highway extension which would go over land owned by the member; Federation of PEI Municipalities24
  25. 25. Examples continued… – A Sunday closing by-law where the member owned a business which was exempted from the by-law; – The payment of stipends to members of a voluntary fire department to which the Councillor would be entitled; – A lawsuit pending against the municipality in which the member was a named party or representative. Federation of PEI Municipalities25 Conflicts of Interest
  26. 26. Conflicts of Interest Indirect pecuniary interest examples • Where the member participated in decisions where he/she was: – Employed by a company opposing a by-law affecting a shopping centre; – The engineer who drew house plans for a client who had her subdivision plan voted on by Council; – An accountant who had a client seeking an amendment of the official plan for the village; Federation of PEI Municipalities26
  27. 27. Conflicts of Interest Examples continued… • A director of a non-profit corporation that received funding from a municipality; • A potential bidder on the sale of surplus land belonging to a municipality. Federation of PEI Municipalities27
  28. 28. Conflicts of Interest • Remember that an interest of a close relative can create an indirect pecuniary interest for the member. • This can also apply to other people to whom you are sufficiently connected, called a “closely connected person”. • “Closely connected person” means (section 1(w) of the MGA): • Family members • Business partner • An agent • Employer Federation of PEI Municipalities28
  29. 29. Conflicts of Interest What doesn’t create a conflict: • Providing goods or services to the municipality if it is – (a) in the ordinary course of the member’s business, – (b) at competitive rates, – (c) consistent with municipal bylaws. • Being a representative of the Council on another body. Federation of PEI Municipalities29
  30. 30. Conflicts of Interest What doesn’t create a conflict: • Being employed by the Government of PEI or Canada, UNLESS a matter directly affects that entity. • Interests that are insignificant or remote in the opinion of Council. Remember: • You should not vote on any matter in which you have a conflict. You are in conflict even if you vote against your interest. Federation of PEI Municipalities30
  31. 31. Confidentiality – Section 119 of the MGA • All government officials, including municipal Councillors, hold information about individuals in trust because of their position. • It is important for Councillors to maintain confidentiality in order to effectively perform their representative role. Federation of PEI Municipalities31
  32. 32. Confidentiality – Section 119 of the MGA • Councillors may be personally liable for any financial loss as a result of their breach of confidentiality. • Councillors may be disqualified for disclosing information acquired at a closed Council or committee meeting. Federation of PEI Municipalities32
  33. 33. Personal Liability • Generally, there is no liability for acts done in the ordinary exercise of Councillor duties. • Municipal statutes: – Councillors are “not liable for any loss or damage caused by anything said or done or omitted to be done lawfully, in good faith, and without negligence in the performance or intended performance of the person’s functions or duties or the exercise of the person’s powers under this or any other Act.” – s.250 of the MGA. Federation of PEI Municipalities33
  34. 34. Personal Liability – Civil • However, Councillors may be liable in the following situations: – Negligent performance of duties; – Fraud; – Acting outside scope of power granted by municipality; – Funds illegally paid out & property wrongfully diverted. Federation of PEI Municipalities34
  35. 35. Personal Liability – Civil • However, Councillors may be liable in the following situations: – Passing an illegal resolution; – Intentionally and maliciously making defamatory statements against another member of Council at a meeting; – Refusing to perform a duty imposed by statute; – Malicious actions. Federation of PEI Municipalities35
  36. 36. Personal Liability – Civil • In addition to liability for individual acts, Councillors may be found liable for acts of the municipality in certain rare circumstances: – i.e. where a Councillor has acted maliciously using municipal name as veil to the malicious act. • Overall: Courts are reluctant to hold Councillors civilly liable for mere mistakes. Federation of PEI Municipalities36
  37. 37. Personal Liability – Criminal • Councillors may also be criminally liable for influence peddling. • It is an offence for a Councillor to (or agree to): demand, accept, or offer a loan, reward, advantage, or other benefit in exchange for voting, abstaining, bringing in or blocking a certain measure, or performing or not performing an act (s. 123, Criminal Code). Federation of PEI Municipalities37
  38. 38. Councillors’ Authority • Councillors do not have the authority to act individually for the municipality, they must be acting with other members together making a quorum at regularly constituted meetings. • Councillors have a duty to act in the best interest both of the municipality as a corporate entity, and the people they represent. Federation of PEI Municipalities38
  39. 39. Meetings • All corporate transactions and affairs must be conducted at duly convened Council meetings. • Meetings are to be held at the proper time and place. • Notice must be provided in accordance with the provisions set forth in MGA and must also be in accordance with by-laws of each municipality. Federation of PEI Municipalities39
  40. 40. Meetings • Mayor / Deputy Mayor / or an appointed Councillor to preside at all meetings (sections 89 and 91 of the MGA). • Mayor to maintain order and decorum and decide all questions of order, subject to appeal to the Council as whole. Federation of PEI Municipalities40
  41. 41. Meetings Quorum • A quorum is required for all Council and Committee meetings. • Quorum is the majority of all the members of Council or a Council Committee. • When quorum is established business can take place. If there is quorum, it is irrelevant that certain members are absent. Federation of PEI Municipalities41
  42. 42. Meetings Quorum • If a person leaves the meeting early, reducing the number to below a majority, the meeting is no longer valid. • Anyone who is not permitted to vote on a matter cannot be counted towards quorum. • However, a person refusing to vote is considered for quorum. Federation of PEI Municipalities42
  43. 43. Meetings Quorum •If a conflict of interest results in a lack of quorum – the remaining members are deemed to be a quorum for that particular discussion / vote. •Mayor only votes in the event of a tie. Federation of PEI Municipalities43
  44. 44. Electronic Meetings • A Council may meet by electronic means if it is authorized by the Municipality’s procedural bylaw and Council members cannot attend in person. • The electronic meeting must allow Council to hear and speak to one another (e.g. skype, telephone conference) Federation of PEI Municipalities44
  45. 45. Electronic Meetings • Notice of the electronic meeting must be provided to the public. • If it is a public meeting, facilities must be set up – at a place specified in the notice - to allow the public to see and hear the participants. • See, generally, section 122 of the MGA. Federation of PEI Municipalities45
  46. 46. Open versus Closed Meetings • General rule is that all meetings to be open to the public. • Exception – Council may pass a resolution to close a part of the meeting (i.e. exclude the public) if the matter is confidential and falls within the list of matters specified in section 119. Federation of PEI Municipalities46
  47. 47. Open versus Closed Meetings • Examples: – Council will discuss personal information; – Human resource matters; – Information received in confidence which, if disclosed, could prejudice the Municipality. Federation of PEI Municipalities47
  48. 48. Meetings Frequency of Meetings – At least 6 regular public meetings must be held in every calendar year. • See section 110 of the MGA. Federation of PEI Municipalities48
  49. 49. Meetings Special Meetings – The mayor or a majority of Council members may request a special meeting. – Notice must be provided to the public and all Council members at least 24 hours prior to the meeting. – See section 121 of the MGA. Federation of PEI Municipalities49
  50. 50. Meetings Minutes of Meetings • There is a duty to maintain meeting records. • Resolutions, decisions, and other proceedings must be recorded in the minutes. • The chief administrative officer is charged with keeping the minutes. • Minutes are public documents and any member of the public may inspect the minutes. Federation of PEI Municipalities50
  51. 51. Meetings Minutes of Meetings •Minutes should contain mainly a record of what was done at the meeting, not what was said by the Council members. •Exception: decisions that can be appealed under the Planning Act should contain some detail as to what factors Council considered in rendering its decision. Federation of PEI Municipalities51
  52. 52. Planning Act Appeals • Any planning decisions made by Council must be consistent with the municipality’s by-laws and its official plan. • A municipality’s decision concerning building permits, subdivision, zoning and other land use matters can be appealed to the Island Regulatory and Appeals Commission (IRAC). • IRAC can substitute its decision for a municipality’s decision. • Municipalities are bound by IRAC’s decision. Federation of PEI Municipalities52
  53. 53. Planning Act Appeals Deference to municipalities • When reviewing municipal decisions, IRAC cannot substitute its own decision merely because it disagrees with the municipality. • The Commission recognizes the expertise of Council over planning matters. • Instead, IRAC must outline some procedural/fairness error, or a substantive legal error (e.g. the decision is not in line with sound planning principles or the Official Plan). Federation of PEI Municipalities53
  54. 54. Planning Act Appeals Deference to municipalities • The Commission must give reasons for its decision; • Test recently confirmed by PEI Court of Appeal in Resort Municipality v. IRAC. Federation of PEI Municipalities54
  55. 55. Federation of PEI Municipalities55
  56. 56. These materials are intended to provide brief informational summaries only of legal developments and topics of general interest. The materials should not be relied upon as a substitute for consultation with a lawyer with respect to the reader’s specific circumstances. Each legal or regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to these materials or their application to you, you are encouraged to consult a member of our Firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing nature of the law, Stewart McKelvey is not responsible for informing you of future legal developments. Federation of PEI Municipalities56