Save the Date – The Municipal Law Seminar
We are pleased to announce that the South East Ontario Municipal Law Seminar will be returning in-person this Fall. Plan to join us November 1st in Long Sault, November 2nd in Eganville, or November 3rd in Kingston.
With an expert panel of presenters, we hope that municipalities will be able to send someone to attend this informative free event. Invitations will be sent out in October. If you wish to reserve space, please send an email to [email protected]. If you have ideas for topics please send an email to Karen with the subject line “seminar topics”.
Supreme Court to clarify provincial jurisdiction over cannabis
Beginning in September, the Supreme Court of Canada will consider the jurisdiction of provinces to prohibit cannabis possession. On appeal is a decision of the Quebec Court of Appeal, which upheld Quebec’s authority to pass a law prohibiting possession of any number of cannabis plants. The law was challenged on the basis that it conflicted with the federal Cannabis Act, which permits possession of up to four plants for personal use. The Quebec Court of Appeal found that Quebec’s prohibition was within the provincial realm of healthcare and did not conflict with the federal Cannabis Act because it was possible for persons in Quebec to comply with both laws. The Quebec Court of Appeal found that the federal Cannabis Act does not give a positive right to possess cannabis plants – it simply does not prohibit having up to four. It concluded that because there is no positive federal right to possess cannabis plants, Quebec’s new law did not frustrate the purpose of the Cannabis Act.
The Supreme Court’s decision could have ramifications across the provinces as it will clarify their authority to regulate cannabis. Any decision will impact municipalities, too, as their ability to regulate cannabis flows from the provinces’ constitutional powers. British Columbia, Alberta, Saskatchewan and Manitoba have confirmed they will make submissions at the appeal, along with the Canadian Cancer Society and various cannabis advocacy groups.
Code of Conduct Sanctions, When Council’s Role Shifts From Politics to Adjudication
A recent Divisional Court decision clarified the distinction between a municipal council’s political and adjudicative roles, and the fine line a councillor must tread between them. Councillor Chiarelli, an Ottawa City councillor, faced several code of conduct complaints relating to sexual harassment and discrimination from applicants for positions in his office. The complaints were investigated by the Integrity Commissioner and on his recommendation, City Council imposed the maximum penalty of a 270 day suspension of pay, being 90 days per complaint.
On judicial review, the Divisional Court upheld the Commissioner’s decision. However, it found that City Council was biased when it imposed the maximum penalty. From the moment the allegations were made public, a number of City councillors expressed support for the complainants and condemned the councillor’s actions. On at least one occasion, the majority of councillors refused to sit at a meeting where the impugned councillor was present, and council as a whole called on him to resign. Councilor Chiarelli, through his lawyer, raised concerns about bias throughout the investigation by the Integrity Commissioner.
The Court found that it is within the political role of councillors to take public positions on issues, and that doing so alone was not improper. However, refusing to sit with Councillor Chiarelli present, and the call for him to resign, were both singled out as indicative of bias. Further, the Court noted that Councillors had not explicitly acknowledged the need to not pre-judge their adjudicative role. In an interesting twist, although the Court found that the sanction process was tainted with bias, it nonetheless imposed the exact same sanction itself.
The main takeaway for municipal councillors is this: councillors fill both a political and, at times, an adjudicative role. Although the political role may be motivated by pre-judgement and existing opinions on the issues, where there are allegations of bias going into an adjudicative decision, councillors should consider taking the time to acknowledge that they must approach their adjudicative functions – such as deciding what sanctions to impose following an integrity commissioner’s report – from an open minded perspective, deciding only based on the record in front of them.
Is the Municipality acting within its powers? A question of reasonableness
A recent Divisional Court decision clarified the distinction between a municipal council’s political and adjudicative roles, and the fine line a councillor must tread between them. Councillor Chiarelli, an Ottawa City councillor, faced several code of conduct complaints relating to sexual harassment and discrimination from applicants for positions in his office. The complaints were investigated by the Integrity Commissioner and on his recommendation, City Council imposed the maximum penalty of a 270 day suspension of pay, being 90 days per complaint.
On judicial review, the Divisional Court upheld the Commissioner’s decision. However, it found that City Council was biased when it imposed the maximum penalty. From the moment the allegations were made public, a number of City councillors expressed support for the complainants and condemned the councillor’s actions. On at least one occasion, the majority of councillors refused to sit at a meeting where the impugned councillor was present, and council as a whole called on him to resign. Councilor Chiarelli, through his lawyer, raised concerns about bias throughout the investigation by the Integrity Commissioner.
The Court found that it is within the political role of councillors to take public positions on issues, and that doing so alone was not improper. However, refusing to sit with Councillor Chiarelli present, and the call for him to resign, were both singled out as indicative of bias. Further, the Court noted that Councillors had not explicitly acknowledged the need to not pre-judge their adjudicative role. In an interesting twist, although the Court found that the sanction process was tainted with bias, it nonetheless imposed the exact same sanction itself.
The main takeaway for municipal councillors is this: councillors fill both a political and, at times, an adjudicative role. Although the political role may be motivated by pre-judgement and existing opinions on the issues, where there are allegations of bias going into an adjudicative decision, councillors should consider taking the time to acknowledge that they must approach their adjudicative functions – such as deciding what sanctions to impose following an integrity commissioner’s report – from an open minded perspective, deciding only based on the record in front of them.
Municipality & staff not liable for approving unsafe subdivision
The British Columbia Court of Appeal found that a release and indemnity registered on title to a subdivision was sufficient to protect a municipality from liability after the subdivision subsided and was evacuated. Central to the Court’s finding was the fact that the release specifically addressed the risk of subsidence and stated that the developer and future owners of the subdivision would not hold the municipality responsible for damages caused by it. Because the developer registered the release on title, it bound the subsequent homeowners. The Court also held that the municipal employee who approved the subdivision was not personally liable to the homeowners because there was insufficient proximity between them to find a duty of care as he had only interacted with the developer.
The Supreme Court of Canada recently refused the homeowners’ request to appeal these decisions. While the decisions dealt with B.C. legislation and are not binding on Ontario courts, they demonstrate how municipalities can reduce their liability by explicitly obtaining releases from known risks during subdivision approvals.
Please do not hesitate to contact our municipal team with any questions about these changes.
