Municipality of North Cowichan Agricultural Advisory Committee Agenda · 2013-02-14 · 1...

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Municipality of North CowichanAgricultural Advisory Committee

Agenda

Date: Tuesday, February 19, 2013Time: 8:30 amLocation: Municipal Hall - Committee Room

Pages

1. Call to Order

2. Approval of Agenda

3. Adoption of Minutes 3 - 5

4. Business

4.1 Cowichan Region Agricultural Land Use Inventory and Water ModelingPresentation - Wayne Haddow

4.2 Cowichan Valley Regional Agricultural Adaptation Stratagey 6 - 13

4.3 Island Agriculture Show - Update

4.4 Ministry of Agriculture AAC Workshop - Update

4.5 Cowichan Exhibition and the Agricultural Land Commission 14 - 17

4.6 Bird's Eye Cove Farm - Potential Application

4.7 Agricultural Land Commission - Meeting Requested 18 - 18

4.8 Common Commission Questions for Application Consideration 19 - 20

4.9 Work and Implementation Plan - Next Steps

4.10 Conflict of Interest Policy 21 - 49

4.11 Proposed Tour of AAC Members' Farms

4.12 Proposed Tour of Watershed Areas and Agricultural Water Issue Areas

5. New Business

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6. Adjournment

Municipality of North Cowichan Agricultural Advisory Committee

Minutes Date: Time: Location:

January 15, 2013 8:30 am Municipal Hall - Committee Room

Members Present: Councillor Jen Woike, Chair

Blaine Hardie, Vice-Chair Johanna Mellor Gerry Plester Neil Wilson

Members Absent: Councillor Ruth Hartmann Victor Vesely

Others Present: Dave Devana, Chief Administrative Officer (CAO) Scott Mack, Director of Planning and Development Brian Green, Deputy Director of Planning and Development Audrey Rogers, Planner Wayne Haddow, Regional Agrologist

1. Call to Order

There being a quorum present, the Chair called the meeting to order at 8:35 am.

2. Approval of Agenda

The Committee approved the agenda as amended to include Item 5.1.

3. Adoption of Minutes

The Committee approved its November 20, 2012 meeting minutes.

4. Business

4.1. Election of Chair and Vice-Chair

The Committee elected Councillor Woike as Chair and Blaine Hardie as Vice-Chair.

4.2. Proposed Meeting Schedule

The Committee approved the proposed meeting schedule.

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January 15, 2013 - Agricultural Advisory Committee Minutes

Page 2

4.3. Membership Terms to Expire

The Committee was advised by staff that the Select Committee Bylaw states that appointments to committees must be made by Council as 3-year terms expire or vacancies occur, and all appointments can be renewed at the pleasure of Council. Neil Wilson and Gerry Plester expressed interest in continuing for another term and will email confirmation to the CAO. Johanna Mellor will advise the CAO whether or not she wishes to be re-appointed for another term.

4.4. Ministry of Agriculture AAC Workshop – February 6

The Committee supported Councillor Woike, Gerry Plester and Audrey Rogers representing the Committee at the Ministry of Agriculture's AAC Workshop on February 6, 2013 in Nanaimo.

4.5. Islands Agriculture Show - February 1 & 2

The Committee felt that a presence at the Islands Agriculture Show to highlight their Work and Implementation Plan would best be served by sharing a booth with another organization. The Committee asked staff to determine whether or not the Cowichan Valley Regional District would allow a Work Plan display at their booth.

4.6. Agricultural Land Commission Decisions

The Committee discussed recent Agricultural Land Commission (ALC) decisions. The Committee asked staff to invite an ALC representative to meet with the Committee to discuss the Commission’s concerns about retaining large farm parcels.

4.7. Work and Implementation Plan

The Committee’s Work and Implementation Plan will be considered by Council at its January 16, 2012 regular meeting for strategic support. Once approved, the Plan will be distributed to each member for reference. With respect to the next steps, the Committee’s efforts will focus on:

1. developing a Water Management Plan, including determining the resources needed to fund and support the project;

2. working with the Economic Development Advisory Committee and other partners to achieve the economic development goals of the Plan, including the proposed new Cowichan Region Visitor Centre;

3. considering a bylaw to create an Agriculture Reserve Fund; and 4. considering aspects of the Zoning Bylaw review related to the agricultural

zones in North Cowichan.

5. New Business

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January 15, 2013 - Agricultural Advisory Committee Minutes

Page 3

5.1. Future ALR Applications

The Committee was advised by staff that several Agricultural Land Reserve (ALR) exclusion applications may need to be considered by the Committee in the near future. The Committee discussed the need to prove agricultural benefit in all ALR applications. In spite of the previous 2012 decision to limit the Committee’s review to only ALR exclusion applications, it was felt that other ALC applications may need to be considered by the Committee when they require agricultural input. Staff advised that they will use discretion to determine which applications need to be considered by the Committee.

6. Adjournment

The meeting ended at 9:30 am.

_________________________

Chair

_________________________ Recording Secretary

5

u Climate Action Initiative\ BC AGRICULTURE & FOOD

Cowichan Valley

Climate Change Scenario: 2O2Os - 2050s

TEMPERATURE

. Annual average is 1'C warmer(+1.6'C by 2050s). 10 more frost free days annually(+16 days by 2050s)t 232 more growing degree-dayslannually(+430 cJays by 2050s)

Grorvlng degree days is a tìîeasure of heat acculnulationDefined as the number of temperature degrees above 5

degrees celsiers rn a 24 hour period

HYDROLOGY

. Shift to more rain-driven

streamfl ow (less predictable)

r Potential for more rain-driven

flood events

. Potential decrease in groundwater

recharge. Potential sea-level rise of 0.8m

above mean sea level by 21002

(at Nanaimo)

2Source: Projected seo level chonges for Britísh Columbio¡n the 27st century - B. Bornhold, 2008,

PRECIPITATION

. Annual precipitation: +3% (may increase)(+6% by 2050s). Summer: -8% (may decrease)(-1,8% bv 2050s). Winter: +2% (may increase)(+5% by 2050s). Snowfall: -24/o decrease in winter(-39% by 2050s)

Black line indicates the mid-point of model results. Shading indicates the range

cooo_

oococ(_)cooè'õoù

EXTREMES

. Double the number of summer "warm days"3

. 3-fold increase in occurence of extremely hot

days

. Increased frequency, intensity and magnitude

of extreme rainfall. lncreased risk of wildfires¡ Drier conditions in the summer

Extremes Source: Georgio Bosin: Projected Climote Chonge,Extremes, ond H¡storicol Anoþrs - Pacific Climate lmpactsConsorti u m

3Days in June, July and August that are warmer than the 90thpercentile historic baseline temperature for that day

Climate Action lnitiative I Cowichan Valley Climate Change lmpacts and Agriculture Workshop I December 5,20126

Climate projections for the Cowichan Valley in the 2020sSource: Pacific Climate Impacts Consortium, www.PlanzAdapt.ca

Mean Temperature('c) Annual +0.4 'C to +1.3 'C +0.9 "C +1.0 "C

Precipitation (%)

Annual

Summer

Winter

-2Vo lo +7o/o

-19o/o to +11o/o

-3o/oto +1OVo

+3o/o

-8%

+2o/o

+4o/o

+0o/o

+4o/o

Snowfall. (%)Winter

Spring

-47%to -6%

ô2o/oto -íYo

-24%

-31o/o

-2o/o

30o/o

Growing DegreeDays. (degree days)

+232 degree days +153 d€gree+'100 to +328degree days

Heating DegreeDays* (degree days)

-446 to -14r'. degreedays

-316 desree days *1:;"n*Annual

Frost-Free Days*(days)

+4 to +16 days +10 days +10 days

Annual +1.0 'C to +2 3 'C +1.6 "C +1.8 "C

Precipitation (%)

Annual

Summer

Winter

-2o/o lo +12o/o

-28o/o lo +1o/o

-5o/o lo +160/o

+60/o

-18%

+5o/o

+60/o

-1o/o

+8o/o

Snowfall. (%)Winter

Spring

-59%to -21%

-71o/o to -17o/o

-39%

-53%

-10%

-58%

Growing DegreeDays. (degree days)

+246 1o +628 degreedays

+430 degree days *283degreeAnnual

Heating DegreeDays* (degree days)

Annuat -7721o ffi

o"nt"" -548 degree days-648 degree

days

Frost-Free Days*(days)

+1 I to +24 days +16 days +20 days

* Growing Degree-Days are a measure of heat accumulation, and represent the cumulative number of degrees that

the average daily temperature is above a base temperature of 5 degrees, for all days of the year

* Heating Degree-Days are a measure of energy demand, and represent the cumulative number of degrees that

the average daily temperature is below a base temperature of 18 degrees (when heating is required), for all days of

the year. Gooling Degree-Days represent the cumulative number of degrees above a base temperature of 18 degrees

(when cooling is required), and is the opposite of Heating Degree-Days.

* Frost Free Days (FFD) are the number of days the temperature is above freezing.

Climate projections for the Cowichan Valley in the 2050sSource: Pacifi c Climate Impacts Consortium, www.PlanzAdapt.ca

Mean Temperature("c)

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Priority Climate Change Impacts for Cowichan Agriculture

Impact 1: Increasing precipitation in fall, winter & springo Excess moisture, waterlogged soils, pressure on drainage infrastructureo Precipitation-drivenfloodingevents

Goal 1.1: Reduce or prevent accumulation of excess moisture on agriculturallandD r oft di scussion str ateg i es :

Strategy 1,L A: Collaborative stormwater planningStrategy 1.1 B: Improve stormwater infrastructure

Impact 2: Changing hydrology, warmer & drier summer conditionso Inadequate water supply in the summer/fall (livestock watering; forage

pro du ctivity; irri gati on demand; p ro du ctivity)o Poor water qualify (turbidity, eutrophication, salinity)

Goal 2.1: Enhance collaborative water planning and managementDraft di s cussi on str ateg i e s :

Strategy 2.14: Integrate agricultural water needs into regional waterplanning and decisionsStrategy 2.18: Improve understanding of water resources

Goal2.2z Increase agricultural water supply and accessD raft di scu ssi on str ateg ie s :

Strategy 2.2A: Develop on-farm water storageStrategy 2.28: Enhance local water storage and distribution for irrigation

Goal2.3= Enhance efficiency and conservation of agricultural water useD r aft di s cu ssi on str ateg i e s :

Strategy 2.38: Maximize agricuìturalwater use conservation and efficiency

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Impact 3: Increasing variability and extremes, locally and globallyo Local impacts such as:

o Increasing uncertainty, variability and extreme precipitation(scheduling of planting, harvesting, inputs; interrupted pollination)

o Extreme heat, hail, storms (damage, productivity, costs)

o Power and supply line interruptionso Increasing wildfire risk

o Local impacts of global agriculture impacts/variability, such asr

o Increasing input/feed costs or variable availabilityo Improved competitiveness

Goal3.1: Reduce vulnerability of agricultural production to variable andextreme weatherD r aft discuss io n strateg i es :

Strategy 3.14: Research and support farm practices for variable conditionsStrategy 3.18: Reduce exposure to shifting farm input pricesStrategy 3.1C: Undertake planning to reduce vulnerability to extreme events

Goal 3.2: Increase flexibility to manage variability and take advantage ofopportunitiesDrafi discussion strateg ies:

Strategy 3.24: Increase flexibility and diversity of agricultural processing,

storage, and marketsStrategy 3.2B: Identify and trial crops suitable for changing conditions

Impact 4: Changes to pests & diseaseso Increasing populations of existing pests and diseaseso Establishment of new pests and diseases

Goal4.1: Minimize agricultural impacts associated with changing pest, diseaseand weed distribution and prevalenceD raft discuss ion str ateg i es :

Strategy 4.14: Develop regional monitoring and analysis for pests, diseases

and weeds

9

Local Assets for Adaptation (identified in workshop #I)

Knowledge

ResourcesPolicy & Regulatory

Resources

. Access to farm

status/taxreductions

. ALR & urbangrowth

boundaries

. Standards higherthan US/China

. Local government

. Agriculture AreaPlan

. Agricultural

AdvisoryCommission

. CVRD wildfire

regulations. VIHAs food

sustainability

focus. NFU (national

voice)

a

a

a

a

a

a

Human & Social

Resources

Strong agricultural

organizations

Passionate,

committed

farmers

Young farmers

National Farmers

Union, lsland

Regional

Agrologist (MAg)

Cowichan Water

Board

Community

economicdevelopment

Supportive and

educated public

Climate Action InitiativeBC AERICULTURE & ¡OOD

Financial

Resources

Risk sharing with

consumers (eg:

csA)

Farmers markets

Farm Credit

Canada

Crop Insurance

Community

economic

developmentinvestment

EFP/BMP

programs

Land ownership

Supplymanagement

Larger market

nearby (Victoria)

Physical Resources

. Available

agricultural land

base

. Diverse

topography, soil

types, climate

. Benefits of ag

land

(environmental;

fire mitigation)

. Diversity ofproduction

systems

. lsolation due tobeing an island

. Agricultural

organizations. Existing

knowledge offarmers &

agriculturespecialists

. Ability to adapt

. Experimentation

by producers

. Advisory services(regional

agrologist). VIU agricultural

research and

education

. Community

economicdevelopment

o

a

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0 Climate Action Initiative

Regional Agricultural

A PILoT PRoJECT I IAnTNeRING FOR AGRICULTURAL RESILIENCE

Adaptation Strategies

BC agricukure & clÌmate change

Tw w w.b c agclimat e a cti o n. c a / ad aptatio n - a s s e s sm ent)

identifies how changing climate conditions mayimpact agricultural production in five key regions

of BC. With growing pressure on water supplies,

more frequent extreme weather events, and

greater variability in conditions, the complexityof decision-making at the farm level is growing.

Why Regional Adaptation Strategies?

The ability ofagricultural producers to adapt to changes

in climate is linked to physical resources and decision-

making processes that are beyond the individual farm.

For example, some of the most significant issues forfuture food production in BC include approaches

to: water management (water supply and storage,

drainage and ditching); emergencyplanning; landuse and zoning; economic development; and regional

infrastructure. Regional Adaptation Strategies willhelp to integrate agriculturet climate change issues

into planning and decision-makingbeyond the farm.

What are Regional Adaptation Strategies?

Regional Adaptation Strategies will build knowledge

and facilitate dialogue while embedding considera-

tions of climate change impacts to agriculture intoexisting decision-making tools such as : AgricultureArea Plans; Official Community Plans; localby-laws and policies; and the planning and decision-

making tools of agricultural organizations.

The project will be tailored to fit local needs and

will bring partners together to create a decision-

making environment that supports resilience in a

changing climate.

BC Agriculture Regional Agricultural Adaptation Strategies Pilot Project zo tz / zo13

12

sptiflkleß in an atid valley, BC

What will the project achieve?

The overall goal ofthe project is to enhance

agricultural and regional resilience by:

. Identifying adaptation priorities to address

climate change impacts to agriculture

. Identifying adaptation measures or risk controlsto address these priorities in the regional context

. Exploringhowto integrate strategies a¡rd actions

into decision-mfüng, programs and planning; and

. Establishinga'living' actionandmonitoringstrategy.

Benefits of particip atÌon

Participation in the projecthas the potential to:

' Improve regional, community, government and

agriculture industry understanding of potentialclimate change impacts and adaptation strategies;

. Strengthen collaboration betweenagricultural organizations, local governments

and provincial governmentsi

. Improve information available for regional-level

planning and decision-making, and to identifycritical informational and resource gaps.; and

. Integrate understanding of agriculturaladaptation into community, regional andindustry planning and decision-making.

Participating regions will be part of the firststrategies of this kind in BC. Partnering regions

will be featured in 'best practice' communicationsmaterials to be sharedwith other communities.

Project Background: Who we are

The BCAgriculture & Food Climate,tction Initiativeis a project of the BC Agriculture Council, with an

agriculture industryJed Advisory Committee. The

Initiativet priorities and activities are guided by theBC Agriculture Climøte Change Action Plmwhichoutlines actions to support the sector with bothgreenhouse gas mitigation and adapting to the impacts

of climate change. For project updates and moreinformation please visit øøw.BCAgClimøteAction.cø .

Emily MacNair, CoordinatorEniþ@BCAgClimateAction.ca z5o 356 t6ó6

Erica Crawford, Adaptation Specialist

Erica@BCAgClimøteAction.ca 778 gz8 146z

Junders include

Paciñc lnstitutefor climate Solutions@lll@Áe

C Growing F.oryard*, BRITISHl-ICoLUMBIA

other project partners

BCAC "a Climate Action Initiative

BC Agrlorlture RegionalAs¡-icultüâlâdaptation Strategies eilot Pro¡e"t z orri rorS

13

Municipality ofNorth Cowichan

7030 Trans Canada Highway, Box 278

Duncan, BC V9L 3X4

Telephone: (250) 746-3100

Fax: (250) 746-3154www.northcowichan.ca

January 31, 2013 File: 0550-20 AAC13

Roger CheethamProvincial Agricultural Land Commission133-4940 Canada WayBURNABY, BC V5G 4K6

Dear Mr. Cheetham,

Re: Agricultural Advisory Committee - Invitation to Attend an Upcoming Meeting

North Cowichan's Agricultural Advisory Committee, at its January 15, 2013 meeting, discussed theAgricultural Land Commission's recent decisions, and in particular, ALC File: #52785. While theCommittee and Council felt the application had merit, the Commission was not supportive and rejectedthe application.

Staff and the Committee would like to meet with you to discuss agricultural benefit in North Cowichanand hear more about the goals of the Agricultural Land Commission with respect to large parcels ofland in the Agricultural Land Reserve. The discussion will help inform us with respect to a ZoningBylaw review that we are undertaking over the next year. Furthermore, it will help to clarify theCommission's expectations with respect to what is required to prove benefit, if there is benefit, inapplications that propose to subdivide large parcels of land in the Agricultural Land Reserve.

We would like to invite you, a member of your staff or a Commission member to meet with theCommittee to discuss these issues. The Committee meetings are held at the Municipal Hall on the 3rdTuesday of the month at 8:30 a.m.

If you have any questions, please feel free to contact me at 250-746-3178 or by email atroqers(rD,northcowichan.ca.

Sincerely,

Audrey Rogers, MEDes, RPP, MCIPPlanner

pc: Councillor Woike, ChairBlaine Hardie, Vice-Chair

LETTER to the ALC_AAC Request for Meeting with ALC Staff (2) Cowfctah 18

COMMON COMMISSION QUESTIONS FOR APPLICATION CONSIDERATION(suBDtvtstoN, ExcLUStoN, AND NoN-FARM USE)

As stated in Section 6 of the Agricultural Land Commission Act, the purposes of the Agricultural LandComrnission are:

(a) to preserve agricultural land;

(b) to encourage farming on agricultural land in collaboration with other communities of interest;

(c) to encourage local governments, first nations, the government and its agents to enable and

accommodate farm use of agricultural land and uses compatible with agriculture in their plans, bylaws

and policies.

These three purposes are considered the basis and primary'filter'for assessing all proposed applications. lnaddition to the three main criteria, the following table is a sample of common questions that the Commission might

consider when reviewing an application. *Each unique application warrants the consideration of multiplecriteria, and none of the below questions are considered in isolation. Nor is this a comprehensive list.

Question Beason for Consideration Potential Consequence ofAooroval

Applicant lnformation1) How long has the applicant

owned the parcel?. Applicants who have recently purchased

agricultural parcels & have not attemptedto farm or improve the land may not becommitted to using the ALR parcelforaqriculture.

Encourages short{ermland owners to apply fornon-agricultural land uses

Parcel Information2) ls the parcel currently used for

agriculture?o lf the land is currently used for

agriculture, there must be compellingjustification for it to be used for a non-aqricultural Þuroose.

Loss of current productiveagricultural land

3) ls the parcel suitable foragriculture?

o lf the land is suitable for agricultural use(whether it is currently used for ag or not)it should be retained in the ALR.

Loss of potentiallyproductive agricultural land

4) Does the parcel underapplication have "FarmClassification" f rom BCAssessment?

. Farm Classification may indicate whetherthe land is used for agriculture, and theparcel's minimum gross agriculturalrncome.

Loss of current productiveagricultural land

5) What is the agriculturalcapability?

o Prime agricultural land is scarce andextremely valuable. Some secondaryclassification land can be improved toprime, while other types of agriculturerequire large tracts of secondary classland for pasture and forage crops.

. Consider agricultural capability of the landwith and without improvements beforeallowing a proposal based on pooraqricultural capabilitv.

Loss of current orpotential ly productiveagricultural land

6) Have there been anyattempted agriculturalimprovements to the oarcel?

. The Commission considers whether aneffort to improve the land has beenattempted.

Loss of potentiallyproductive agricultural land

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COMMON COMMISSION QUESTIONS FOR APPLICATION CONSIDERATION

(suBDtvtsloN, EXGLUSION, AND NON-FARM USE)

Question Reason for ConsiderationPotential Gonsequence of

Aooroval

7) What types of land usesurround the parcel?

. The application should not adverselyaffect surrounding agricultu ral operations

. Surrounding non-agricultural activitiesmay affect the use or suitability of thesubject parcel for agriculture.

¡ Aim to minimize any possible rural andresidential conflicts either by refusing apotentially detrimental proposal, or byapplying conditions to an approval (e.9.fencing, buffering, vegetative screening,restrictive covenants, etc)

Negatively impactsurrounding agriculturaloperations, or, createconflict between rural andresidential uses

Proposal lnformation8) Does the proposal encourage

or enhance agriculture/agri-business in the short or long-term?

. ALC mandate is to encourage farming incollaboration with other communitiesinterests

Heightens expectations fornon-agricultural land usesin the ALR, loss of land foraqricultural use

9) Could this proposal beaccommodated on landsoutside of the ALR?

Any non-agricultural use within the ALRneeds to be compatible and/or clearlyjustified. Once agricultural land is lost, it israrely ever reclaimed to agricultural use.

ALR land is often less expensive thanlands outside the ALR but this does notiustifv its use for non-aq purposes.

Loss of current orpotential ly prod uctiveagricultural land

10) Will the proposal removecurrently unused agriculturalland?

. ALC mandate is to preserve agriculturalland - this includes land currently used aswell as unused but with potentialforfuture use.

Loss of current orpotentially productiveagricultural land

1 1) Will the proposal encourageparcelization of land in anagricultural area?

¡ Large parcels are generally viewed asmore conducive to a wider range ofagricultural options; small parcels areoenerallv viewed as rural residential

Raises expectations fornon-agricultural and ruralresidential uses in the ALR

12) Despite the non-agriculturalnature of the proposal, is theproposal seen as necessary tothe local community, region, orprovince?

. The Commission acknowledges thatthere may be community based reasonswhy in some cases non-agricultural usesare proposed on ALR lands.

Loss of current orpotential ly prod uctiveagricultural land;

Local Government lnformation13) How does the proposal relate

to local Agricultural Plans,Official Community Plans, andbylaws?

The ALC Act requires local governments to ensure its bylaws (GrowthStrategies, OCPs and zoning bylaws, etc.) are consistent with the Act,

failing which they are of no force and effect.Local governments have the ability to stop applications f rom proceeding

to the Commission in certain instances where a proposal is contrary tolocal land use planning.fhe Agricultural Land Commission Act provides

that if an application applies to land that is zoned for agricultural or farmuse or requires an amendment to a plan or bylaw, the application maynot proceed unless it is authorized by the local government.

The Commission considers local government recommendations fromthe region of application.

14) What are therecommendations f rom theBoard/Council, AgriculturalAdvisory Committee, AdvisoryPlanning Committee, PlanningStaff, etc?

20

CONFLICTS OF INTEREST

AND

LOCAL GOVERNMENT ELECTED OFFICIALS

Prepared by:Colin Stewart

November 20, 2009Capilano University

Parksville, BC

837 Burdett Avenueqj. i _ 03f buraenavenueOLdpieS Victoria, BC V8W1B3

McDannold ESSSSSt6W3rt Email: [email protected]

www.sms.bc.ca

Barristers & Solicitors

21

CONFLICTS OF INTEREST AND LOCAL GOVERNMENT ELECTED OFFICIALS

1.0 INTRODUCTION

Since 1993 the rules regarding disqualification from elected office and conflict of interestaffecting regional district directors and municipal councillors have been largely set out inlegislation. Divisions 6 and 7 of Part4 ofthe Community Charter (applicable to regionaldistricts by section 787.1 ofthe Local Government Act) prescribe the basic rules relatingto conflict of interest.

However, while there are now statutory rules which govern disqualification from officewhich significantly affect elected officials who vote on matters in which they are found tohave a pecuniary interest, the common law rules relating to bias and non-pecuniaryconflict have not been discarded and must still be considered.

2.0 QUALIFICATIONS TO HOLD ELECTED OFFICE

2.1 Section 66 Local Government Act The Statutory Rules:

The legal qualifications for being nominated for office, being elected to office andcontinuing to hold office are the following:

A person must:

- be age 18 or older on general voting day;

- be a Canadian citizen;

- have been a resident of B.C. for at least six months before general voting day;

A person must not be:

- disqualified by the Local Government Act, the Community Charter or any otherenactment from voting in a B.C. election or being elected to or holding the officeor otherwise disqualified by law;

- a Judge of the B.C. Court of Appeal, Supreme Court or Provincial Court;

- an employee of a local government, including a municipal government within aregional district or the regional district government which includes the relevantmunicipality (unless the procedure in section 67 is followed whereby a leave ofabsence is taken from one's employment, followed by resignation upon election);

- prohibited from holding elected office as a result of a conviction for an electionoffence under sections 151,152, 152.1 and 153 of the Local Government Act

Staples McDannold Stewart 22

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- in default of the obligation to file a complete campaign disclosure statement inaccordance with sections 92 and 92,4 of the Local Government Act,

- in default of the statutory requirement to take the oath of office (CommunityCharters. 110);

- disqualified under Division 7 of Part 4 of the Community Charter for certainconduct offences such as conflict of interest, improperly accepting gifts, failure todisclose contracts or misusing insider information;

- absent from council or board meetings for a period of sixty (60) consecutive daysor from four consecutive regularly scheduled council or board meetings under s.110;

- disqualified for having authorized the spending of money contrary to theCommunity Charter or Local Government Act (Community Charter, s. 191); or

- disqualified under any other enactment (Local Government Act, s. 66(2)(e)).

3.0 POST ELECTION DISQUALIFICATION

3.1 Failure to Comply with Statutory Reporting and Attendance Duties:

The following failures under section 92 of the Local Government Act and sections 105 to107 and 110 of the Community Charterwill now result in disqualification from office:

3.1.1 Section 92 LGA1failure to file campaign financing disclosure statement within 120 days ofthe election;

3.1.2 Section 92.4 LGA

filing false or incomplete disclosure statement;

3.1.3 Section 105 CC

failure to report gifts or personal benefits

3.1.4 Section 106 CCfailure to disclose protocol or social obligation gifts having a value greaterthan $250 or a total value from a single source greater than $250 in a 12month period;

3.1.5 Section 107 CC

1The acronym "LGA" refers to the Local Government Act; "CC" refers to the Community Charter.

Staples McDannold Stewart23

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failure to disclose or report contracts with the local government to thecorporate officer. This obligation applies for six months after an electedofficial ceases to hold office.

3.1.6 Section 110(1) CCfailure to take oath of office;

3.1.7 Section 110(2) CCfailure to attend meetings for sixty (60) consecutive days or fourconsecutive regularly scheduled council or board meetings, whichever isthe longer time period, unless the absence is due to illness or by leave ofthe board or council;

Leave of council or board under section 110(2) CC should be obtained byway of resolution and should be obtained before the expiry of thedisqualification period (ie: the longer of sixty consecutive days or fourconsecutive regularly scheduled meetings), as the wording of section110(2) CC probably has the effect of deeming the office vacantautomatically upon the expiry of the period;

In the case of serious disabling injury or accident of an elected official, theadministrator should ensure that a report is prepared and placed on theagenda before the expiry of the time period under section 110(2) CC sothat the board or council can consider whether leave of absence should begranted.

Sections 105, 106, 107 and 110 CC apply to regional districts undersection 787.1 LGA.

3.2 Expenditure Disqualifications:

A member can be automatically barred from holding office for three (3) years ifconvicted or found by a Court to have voted on a bylaw or resolution authorizing anexpenditure, investment or other use of money contrary to the Community Charter orthe Local Government Act (s. 191 CC).

3.3 Disqualification for Acting in Matters Affecting Pecuniary Interests:

3.3.1 Basis for Disqualification

(a) Voting: Section 101 CC: Conflict of Interest - The Basic Rule

Under section 101 CC, an elected official who participates in a discussion of amatter or votes on a question in respect of a matter in which the member has adirect or indirect pecuniary interest will be disqualified from continuing to holdoffice unless:


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(i) the pecuniary interest of the member is a pecuniary interest incommon with electors of a municipalityor regional district generally;

the matter relates to remuneration or expenses payable to one ormore members in relation to their duties as elected officials;

the pecuniary interest is so remote or insignificant that it cannotreasonably be regarded as likely to influence the member inrelation to the matter; or

(ii) the contravention was done through:

- inadvertence; or

- an error in judgment made in good faith.

The law in British Columbia in this regard is similar to the statutory rulesgoverning conflict of interest in other provinces of Canada, notably Ontario andAlberta.

(b) Rules Against Use of Inside or Outside Influence - Sections 102 and 103CC:

The Community Charter also prohibits:

(i) elected official's use of office to influence a decision made at acouncil or board meeting or made by an "officer" or employee of thelocal government or by a delegate where the elected official has apecuniary interest (section 102 CC); and

(ii) elected official's use of office to influence a decision,recommendation or action of a third party where the elected officialhas a direct or indirect pecuniary interest (section 103 CC).

(c) Accepting Gifts

Section 105 CC prohibits an elected official accepting a gift or personal benefitconnected with performance of duties of office that is not a gift that is an incidentof the protocol or social obligations that normally accompany responsibilities ofoffice.

(d) Disclosure of Contracts

An interest in a contract with a local government is no longer a bar to holdingoffice, so long as the elected officer in question does not participate in the


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discussion or vote on the contract, in accordance with the rules set out in section100 ofthe Community Charter, and complies with the disclosure requirements ofsection 107 of the Community Charter. Failure to disclose may result in thedisqualification of the elected official.

(e) Use of Inside Information - Section 108 CC

Section 108 of the Community Charter prohibits the use of information that anelected official obtains in the performance of his or her office and that is notavailable to the general public to further a direct or indirect pecuniary interest ofthe council member or a former council member.

3.4 Conflict of Interest - The Declaration

Section 100 of the Community Charter (made applicable to regional districts undersection 787.1 of the Local Government Act) provides that where an elected officialattending a meeting considers that he or she is not entitled to participate in thediscussion of a matter because the member has:

(a) a direct or indirect interest in the matter; or

(b) another interest in the matterthat constitutes a conflict of interest,

the elected official must declare this and state in general terms the reason why themember considers this to be the case.

The elected official is then obliged to refrain from doing the things referred to in section101(2) of the Community Charter.

3.5 The Restrictions on Conduct Where there is a Conflict

The section 101(2) prohibitions are that the elected official must not do the following inrelation to matters where he or she has a conflict:

• remain at the meeting, or any part of the meeting during which the matteris under discussion;

• participate in any discussion of the matter;• vote on a question in respect of the matter; or• attempt in any way before, during or after the meeting, to influence the

voting on any question in respect of the matter.

3.6 Pecuniary Interests:

The existence on the part of an elected official of either a pecuniary interest or a non-pecuniary interest in a matter can give rise to a conflict of interest.


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Section 100(2) of the Community Charter specifically requires council members todisqualify themselves from a discussion or vote on a matter where the memberconsiders that he or she is not entitled to vote because of a direct or indirect pecuniaryinterest or another interest in the matter that constitutes a conflict of interest.

To determine what may be a direct or indirect pecuniary interest, one must return to thecase law. One of the leading statements in Canada regarding conflict of interest at thelocal government level is found in the Ontario decision Re: LAbbe v Blind River(1904)7 O.L.R. 230 (C.A.) in which the Court stated:

"Now, the interest or bias which disqualifies is one which exists separateand distinct as to the individual in the particular case... not merely someinterest possessed in common with his fellows or the public generally: thismay be a direct monetary interest or an interest capable of beingmeasured pecuniarily, and in such case that a bias exists is presumed.There may be also substantial interests other than pecuniary, and then thequestion arises, in all of these circumstances, as to whether there is a reallikelihood of bias... a reasonable probability that the interested person islikely to be biased with regard to the matter at hand... in brief, it appears tobe a question of fact in each instance of the administration of public trustto say whether the person voting in the exercise of the trust had such adisqualifying interest as should stop him from taking part and as shouldnullify his vote."

In Re: L'Abbe v Blind River, the Ontario Court of Appeal recognized two distinct types ofinterests which might disqualify one from voting: pecuniary interests and personalinterests. It is the pecuniary interest which has been included in section 101 of theCommunity Charter. It is therefore a vote by an elected official on a matter in which theofficial has a pecuniary interest which will now result not merely in nullification of themember's vote and possibly of the resolution or bylaw, but in disqualification of theelected official from office under section 101.

In the Old St. Boniface Residents Association Inc. v City of Winnipeg (1990) 2 MPLR(2d) 217, Mr. Justice Sopinka, speaking for the majority of the Supreme Court ofCanada, expressed the test for conflict of interest as follows:

"It is not part of the job description that municipal councillors be personallyinterested in matters to come before them beyond the interests that theyhave in common with the other citizens in a municipality. Where such aninterest is found, both at common law and by statute, a member of councilis disqualified if the interest is so related to the exercise of a public dutythat a reasonably well informed person would conclude that the interestmight influence the exercise of that duty. This is commonly referred to asa conflict of interest."

Staples McDannold Stewart

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Obviously, for an elected official to know whether or not he or she can participate in adiscussion and vote on a particular issue, it is necessary to know whether or not a director indirect pecuniary interest exists, or whether there is some other interest whichdisqualifies the member from discussing or voting on the issue.

3.7 Case Law - What is a Pecuniary Interest?

Unfortunately, there is no clear answer to the question: "What is a direct or indirectpecuniary interest?" which will answer all questions. The fact patterns are so varied thatit is always necessary to examine each case on its own facts. Nevertheless, previouslydecided cases can serve as some guide.

Because the term "pecuniary interest" is not defined in the Community Charter or theLocal Government Act, one must turn to the case law for assistance.

In the decision Guimond v Sorberger (1984) 13 MPLR 134, Clement, J.A. speaking forthe Alberta Court of Appeal, describing a pecuniary interest, adopted the statement ofVaughn Williams, L.J. in R. v Sunderland Justices [1901] 2 KB 357, in which apecuniary interest was described as "an interest capable of being measuredpecuniarily".

Rogers on Municipal Law defines pecuniary interest as something "that could monetarilyaffect land, giving either an advantage or disadvantage in terms of financial impact."

Here are some examples of situations which have been found to qualify as direct orindirect pecuniary interests:

(a) Employer/employee relationships

- three council members who were employees of a company which opposedbylaws dealing with a shopping centre in the Town of Hinton, Alberta weredisqualified from office because of their participation in the discussion and votingon the bylaws: Guimond v Sorberger.

"The interests of an employee in a matter affecting his employerwill, in the normal course of the relationship, be supportive of thoseof his employer not only by reason of his general obligations to hisemployer but also by his selfish interest in maintaining andimproving the relationship itself. Such matters are dependent inlarge measure on the good will of the employer: promotion, salaryincreases, even continuation of employment should reduction ofstaff be contemplated. Those are the considerations inherent in therelationship."

- elected official was administrator of a law firm retained by the municipality thatwas representing a property developer that applied for rezoning. Alderman held


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to be in conflict of interest when he voted on the rezoning: Boss v BroadmeadFarms Ltd. (1979) 11 MPLR 212 (B.C.C.A.).

- elected official was employed by "C Company" which in turn controlled "ACompany" and "A Company" developed land in the municipality on behalf of "CCompany" and went before town council to request permission to take water fromthe town's water supply in order to service a proposed construction camp. TheCourt found that, in light of the close relationship between the two companiesand the financial and other advantages accruing to "C Company" the electedofficial had a pecuniary interest in the matter. The Court suggested that it wasnot too remote to suspect that the elected official would prefer to be looked uponfavourably by his employer and as a result cast a vote in favour of his employer'sinterests: Levy v Knight [1975] 2 WWR 622 (Alta. Dist. Ct).

(b) Professional/client relationships

Accountant

- elected official is a chartered accountant and one of his clients and his client'scompanies submitted an application to the municipality for an amendment to theOfficial Plan. Council member participated in council discussion and confirmedthat he acted as accountant for the client and the companies and then voted insupport of the Plan amendment which passed by a vote of 3 to 2. The councilmember was disqualified from office because of participation in the vote as theCourt found that the council member stood to benefit from his client's possiblefuture monetary gain. The judge in the case stated:

"To me, it is obvious that the chartered accountant for a companythat prospers would financially benefit both directly and indirectlyfrom the success achieved."

Begin v Mclnnis (1991) 4 MPLR (2d) 315 (Ont. Gen. Div.)

Architect

- elected official is president of a firm which provided client with building drawingsand construction cost estimates with respect to a residence to be built in themunicipality. Contract made before election of councillor to office although actualdrawings and cost estimates were provided after the election. A few days afterthe work on the contract was completed, but before the bills for the work hadbeen paid, the client sought subdivision approval from the town council. TheCourt concluded that the councillor was disqualified from voting on the matterbecause he had "such a fresh and close relationship with the owner/applicant"that there was a reasonable apprehension of bias due to a pecuniary incentive tovote as he did in favour of the subdivision. Relevant to the Court's reasoningwas the consideration that if the subdivision was not approved that all of the


house design plans would have been for nothing which could have affected theproperty owner's view of the value of the councillor's professional services andaffected whether he was paid for his account: McCaughren v Lindsay (1983) 144DLR (3d) 503 (Alta. C.A.).

Realtor

- elected official who is a realtor who votes on matters that generally affectdevelopment matters will not be in a conflict as there must be something morethan a mere "potential for future business": Tolnai v Downey (2003) 40 MPLR(3d) 243.

- elected official had a long, ongoing realtor/client and business relationship with afavoured client. The Court concluded that on the facts of the case, the electedofficial was likely to favour the interests of his client: Godfrey v Bird 2005 BCSC1122.

(c) Business or land interests

- elected official votes on a motion to support a highway extension and to preparean environmental report on the extension when he owned a 100 acre propertyover which the highway would pass: Jafine v Mortson (1999) 43 OR (3d) 81(Ont. C.J.).

- Councillor who owned variety store in vicinity of grocery store and who votedagainst sale of municipal land to grocery store held to be in conflict: (1998) 46MPLR (2d) 285 (Man. C.A.).

- elected official votes to improve access from highway to a shopping centre inwhich he operates a business: Wannamaker v Paterson [1973] 5 WWR 193(Alta. C.A.).

- elected official votes on the creation of a recreational area adjacent to rezonedland owned by the official which he subsequently subdivided and sold for a profit:Casson vReed [1975] 6 WWR 431 (Alta. C.A.).

- elected official had a direct or indirect pecuniary interest in voting where thematter involved an access road to land owned by his son, of which he was a co-mortgagor: Re: Russell v Toney (1982) 137 D.L.R. (3d) 202 (Alta. C.A.).

- to amend the Planning Scheme of an area in which the councillor owns lands:Swartz v Dumaine (1994) 22 MPLR (2d) 299.

- proposal to build a hotel in a town where the mayor and an alderman wereshareholders and directors of a company that owned another hotel that would


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benefit from the construction of the new hotel: Kingfisher Inns Ltd. v Nipawin(Town) 2000 SJ No. 177 (Sask. Q.B.).

- In Lovatt v Glenwood (2005) 38 MPLR (3d) 224 (Man QB), a conflict of interestwas found not to exist at a time when a council member had been approachedand had expressed interest in investing in a company, but had not yet made acommitment to do so. Until the commitment was made, no conflict existed.

- In Jaffary v. Greaves [2008] OJ No. 2300 (Ont. Sup. Ct.) the respondentcouncillor also owned a development company and appeared before aCommittee of Council and Council to request a deferral of a development feewhich was granted by Council.

(d) Contractual relationships

- work performed by a deputy reeve under a subcontract: Mino v DArcey (1991) 2OR (3d) 678 (Ont. Gen. Div.).

(e) Family relationship

- a family relationship in and of itself does not create a pecuniary interest: Holt vEvans (1982) 19 MPLR 284 (Alta. C.A.), unless the elected official's householdstands to benefit from the interest: Wynja v Halsey-Brandt (1993) 78 BCLR (2d)72 (C.A.). In Alberta, where the Municipal Government Act now deems thepecuniary interests of children to be those of the council member, seasonalemployment with a corporation may be so remote or insignificant that it cannotreasonably be regarded as likely to influence a council member's vote: Atkins vCalgary (City) (1994) 19 MPLR (2d) 259 (Alta.Q.B.).

(f) Lawsuit

- a lawsuit for damages naming a mayor or member of council personally maycreate a pecuniary interest preventing the member from voting on a matterinvolving or affecting the interests of the parties in the action: Halton Hills (Town)v Equity Waste Management of Canada (1995) 30 MPLR (2d) 232; Sheehan vHarte (1993) 15 MPLR (2d) 312.

(g) Friendship

- In Godfrey v Bird, discussed above, in addition to the realtor/client relationshipthat the Councillor had with the property owner, there was evidence before theCourt of a long standing, social friendship. The Councillor made an initialdeclaration of conflict on the basis of friendship, a declaration that he laterretracted. The friendship was one of the factors referred to by the Court (alongwith the fact that the property owner was also a business partner, principal in anumber of real estate sales and lender) in concluding that the Councillor was


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disqualified as having an indirect pecuniary interest in the rezoning of his friend'sproperty. A friendship on its own, without some other business relationship,would not be sufficient to give rise to a pecuniary interest.

In short, a pecuniary interest is an interest capable of being measured or assessed interms of a benefit or a loss. A mere contingent interest or expectation is not sufficient(see paragraph 3.8.3 below). In Bowers v Delegarde [2005] OJ NO. 689 (Ont. SCJ),this was expressed as requiring the person challenging the councillor's actions to show"a real issue of conflict, or, at least... a reasonable assumption that conflict will occur".

3.8 Defeating the Disqualification:

The Act includes a number of methods by which the effect of the disqualificationprovision under section 101 CC can be defeated.

3.8.1 Pecuniary interest in common with electors generally.

An early discussion of the community of interest exception is found in the Ontariocase of Elliott v St. Catharines, where the Court summarized the exception asfollows:

"The result of these cases is that there is a consensus of opinionthat where the personal or pecuniary interests of the member is thatof a ratepayer, in common with other ratepayers, or, as put byOsier, J.A., 'where though he is personally interested, his interest isnot different from what that of the community in general', themember is not disqualified. The community of interest spoken of Iunderstand to be a community in the kind, not in the degree, of theinterest...

The principle upon which the rule is founded is the same whetherthe bylaw is one affecting all the ratepayers of the municipality oronly those within a section of it."

In the Elliott case, the Court applied the community of interest exception to holdthat a member of city council was not disqualified from voting upon a proposedbylaw to construct a sewer on a certain street within the municipality merelybecause he owned property fronting on the street which gave him a large interestin the proposed drainage.

In Re: Hoeppner [1976] 4 WWR 481 BCSC, a bylaw was before Vancouver CityCouncil which would reduce the minimum lot size for townhouse development ina particular zone. An alderman who lobbied extensively in favour of the bylawamendment but did not vote on the actual amending bylaw owned a piece ofparcel in that zone which was marginally smaller than the proposed minimum lot


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size but which, with an exemption from the Board of Variance, could bedeveloped for townhouses ifthe amendment went through.

The Court held that while the alderman did in fact receive a benefit from theamending bylaw, he did so in the same way that all property owners in that zonereceived a benefit. It followed, according to the Court, that the alderman did notstand to gain any purely personal advantage from the bylaw but only anadvantage shared by a significant segment of the public. After considering thecase law, the Court distilled the following two general rules:

if the evidence indicates or appears to indicate that anelected official is instrumental in having a bylaw enacted inorder to obtain advantages which are purely personal, thebylaw will be struck down as being made in bad faith andhence illegal;

if the evidence indicates that the advantages obtained arenot purely personal but are the same advantages as thoseobtained by the public at large the allegations of bad faithand illegality must fail.

The distinction seems to be that even though an elected officialmay be personally interested in the enactment of a bylaw, if theadvantage obtained by him is one enjoyed in common with thepublic generally then it cannot be said that the advantage sought byhim is a personal advantage."

A community of interest was also found by the Alberta Court of Appeal in Holt vEvans (1982) 19 MPLR 284 (Alta. C.A.). In that case, the council member hadvoted on a water supply extension where he himself owned undeveloped landone further mile from the municipality as the extension would benefit other landsin addition to the lands of the elected official.

In contrast, a community of interest exception was not found in the followingcases:

- In Casson v Reed [1975] 6 WWR 431 an elected official participated in adebate on the creation of a recreation complex on lands within themunicipality where he owned a quarter section of land abutting a proposedrecreation complex site and the evidence indicated that the development ofthe recreation complex would affect the value of all land within a five mileradius of the proposed site. The Court of Appeal noted that as the aldermanwas actively developing his lands at the time of the rezoning, he was pursuinga purely personal advantage not shared by him with others having the samecommunity of interest.


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- In Kizell v Bristol [1993] OJ 3369, the Court had to consider whether aregulatory bylaw to close businesses on Sundays and holiday Mondays wouldaffect two councillors, one of whom was employed fulltime by a retailer andwho was a partner with his wife in a flea market business and another whowas also a partner in a retail business. The Court found that the councilmembers were in retail businesses or in businesses directly related to theretail sector and that the issue of holiday closing had a potential impact onthemselves, their employers or their fellow retailers and was an interest sodifferent in kind from other taxpayers in the community so as to prevent itfrom being found to be a pecuniary interest in common with electorsgenerally.

- In Cornwallis v Selent (1997) 40 MPLR. (2d) 184, the Court declined to find acommunity of interest on the part of a council member who voted on aconditional use permit for the establishment of a recreational facility on landslocated a short distance from a shopping mall owned by the councillor. TheCourt found the Council member was in a special position to benefit from therecreation centre.

- In Godfrey v Bird [2005] BCJ 1122 (SC), a council member who voted on azoning amendment that would affect only 40-50 lots in North Saanich did nothave a sufficient community of interest in common with other electorsgenerally so as to avoid disqualification.

3.8.2 Remuneration of Expenses

Under section 104(1)(c) CC a member of council or the director on a regionalboard may vote on a matter relating to remuneration of directors or indemnity ofexpenses bylaw.

3.8.3 Remote or Insignificant Interests

If the pecuniary interest is so remote or insignificant that it cannot reasonably beregarded as likely to influence the member in relation to the matter in issue, thedisqualification in section 104(1)(d) CC does not apply.

(a) Remote

A good example of a remote interest arises from the Alberta decision Holtv Evans (1982) 19 MPLR 284 (Alta. C.A.). That case, which wasdiscussed above under paragraph 3.8.1, also involved a situation wherethe father and two brothers of the council member owned land whichwould be supplied by water as a result of the council vote. The Courtconcluded that there was no direct or indirect pecuniary interest merelybecause of the blood relationship between the member of council and theproperty owners and furthermore that it was unreasonable to infer from a


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mere expectation that the council member might benefit from an increasein the value of his father's estate that he had a direct or indirect pecuniaryinterest. The Court noted that there were a number of contingencies thatmight affect the existence of any indirect pecuniary interest on the part ofthe council member.

In Fearnley v Sharp, (1999) 72 BCLR (3d) 121, a Council member'shusband was a fireman and she voted on matters pertaining to the settingof standards and criteria for a fire chief. She was alleged to have apecuniary conflict of interest. The B.C. Supreme Court concluded that tosuggest that her husband might be helped by the new fire chief was"beyond a remote possibility".

In the Ontario decision Jafine v Mortson (1999) 50 MPLR (2d) 218 (Ont.C.J.), the Court found that the Mayor's interest was not too remote orinsignificant to prevent a disqualifying conflict from arising. In that case,the Mayor of East Gwillimbury voted in favour of a highway extensionproject while he owned land over which the proposed highway was topass, despite the fact that evidence was established that he would haveno net financial gain as a result of the highway project. At the time of thevote the proposed route was still only speculative in both time andcertainty. The Mayor was saved only by the fact that the Court found thathe had made an understandable error in good faith.

In another Ontario decision Whiteley v Schnurr [1999] OJ No. 2575, theCourt refused to set out a checklist to try to determine when pecuniaryinterests were so remote or insignificant that they would not result indisqualification. Instead, the Court formulated the following test:

"Would a reasonable elector, being apprised of all thecircumstances, be more likely than not to regard the interestof the councillor as likely to influence that councillor's actionand decision on the questions? When answering thequestion set out in such a test, such elector might considerwhether there was any present or prospective financialbenefit or detriment, financial or otherwise that could resultdepending on the matter on which the member disposed ofthe subject matter before him or her."

(b) Insignificant

In Guimond v Vancouver, the B.C. Supreme Court found that contributionstotalling 0.78%, 1.16% and 2.72% to the campaign funds for the Mayorand two Council members was too insignificant to reasonably expect themto influence the elected officials.


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However, in other cases even relatively small amounts of money may notbe considered "insignificant". Thus, work performed by a deputy reeveunder a subcontract yielding a profit of $300 was not considered "soinsignificant as to render his interest insignificant" in Mino v DArcey(1991) 2 OR (3d) 678.

3.8.4 Inadvertence and Error in Judgment Made in Good Faith

Section 101(3) of the Community Charter provides that a person whocontravenes section 101 may be exempted from the disqualification if thecontravention was done through inadvertence or by reason of an error injudgement made in good faith.

(a) Error of judgment

In order for there to be an error of judgment, there must be a conscious exerciseof judgment: Holstine v Wentz (1979) 11 Alta. L.R. (2d) 164;

a Court will consider whether there was any suppression of facts, any secretdealings involving the council member's property, whether anyone raised theissue of a possible conflict, and whether the elected official's views were"understandable": Jafme v Mortson (1999) 50 MPLR (2d) 218 (Ont. C.J.).

a Court will consider absence of corrupt intent or motive and the fact that noimmediate financial benefit was conferred and that the member recognized herconflict of interest: Re Graham v McCallion (1982) 137 DLR (3d) 432, affirmed20 MPLR 91 (Ont. Div. Ct.).

where members obtained the town solicitor's opinion that they had no conflict,even though the solicitor's opinion was subsequently proved incorrect in a Courtaction: Re Edwards v Wilson (1980) 31 OR (2d) 442.

where the elected official has an honest but mistaken belief as to the legality ofsupervisor's fees paid to another elected official: Hall v Humenny (1985) 41Sask. R. 97 (Q.B.).

an elected official, who is a real estate agent, votes on a matter involvingapproval for the removal of topsoil from a building lot by a vendor for which heacts, made a bona fide honest error in judgment where a Court finds that thecouncil member honestly felt that he did not have any "pecuniary interest" in thematter: Campbell v Dowdall (1992) 12 MPLR (2d) 27 (Ont. Gen. Div.).

In this case, the Court found that the councillor in question simply did not see anyreal interest in the topsoil removal request, being the kind of thing that was aminor routine matter to council where it was debatable whether the disposition ofthe matter one way or another produced any financial advantage to the owner.


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In Meister v Brunsch (1993) 2 DMPL 118 a council member employed to readwater meters for a town was held to have made an honest error in judgment invoting to pay his invoices and the Court refused to disqualify the Councillorwhere the Councillor thought the vote was just a routine matter.

An error in good faith may be found in circumstances where a Court concludesthat the conduct of an elected official in discussing and voting on a matter wasunwise and mistaken, but is nevertheless undertaken in good faith in the senseof being done honestly, without fraud, deceit or collusion.

An elected official who fails to obtain legal advice in advance of a vote, or whodisregards such advice may be found not to have acted inadvertently or in goodfaith: Begin v Mclnnis (1991) 4 MPLR (2d) 315 (Ont. Gen. Div.).

A councillor who makes a declaration of conflict on the basis of friendship with aproperty owner, when in fact the facts demonstrate a lengthy history of businessdealings, was found not to have acted in good faith in purporting to rely on legalopinions from the municipal solicitor that clearly were not based on a fulldisclosure of the facts: Godfrey v Bird.

(b) Inadvertence

a breach may be inadvertent where an elected official, unaware that "as asubcontractor" he has been included in tender documents, fails to declare theinterest in a vote to approve the lowest bid.

a Court did not find a bona fide error in judgment where an elected official isfamiliar with the rules governing conflict of interest because of previousexperience on council: Mino vDArcey (1991) 2 OR (3d) 678.

where a mayor votes on a lease of facilities to a local hockey team in which sheowned two shares as the vote was "inadvertent" in the sense of careless and

unwitting but innocent: Holstine v Wentz (1979) 11 Alta. L.R. (2d) 164.

sometimes a breach may be considered inadvertent even when the electedofficial knows the facts but is unable to apply the law to the situation. InSynchysyn v Tiller [2000] MJ No. 281 (CA), the councillor knew that the contractfor the purchase of the parcel of land he was purchasing was conditional on saleof another parcel to the municipality, but did not understand that as a result hehad a pecuniary interest when the matter came before council.


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3.9 Effect of Vote where Member Disqualified for Pecuniary Interest:

3.9.1 Conseguences of Vote

If a member discusses a question, attempts to influence the vote or votes on amatter contrary to section 101(2) CC and the contravention is found to be astatutory disqualification, then the following may result:

(a) the elected official may be removed from office;

(b) the vote may be nullified;

(c) the resolution or bylaw which was voted upon may be quashed by anapplication under section 262 of the Local Government Act, the JudicialReview Procedure Act, or by way of declaratory action;

(d) if the vote resulted in the acquisition of a benefit by the elected official,then he or she may be required to pay back profits, both under theCriminal Code or at common law;

(e) the board or council member may be sued for damages by an injuredparty, ratepayers or municipal corporations and may lose the protectionfrom personal liability afforded by section 287 LGA if the conduct of theelected official is characterized as having been dishonest, grosslynegligent, malicious or wilful;

(f) the regional district or municipality could be exposed to litigation andsubsequent judgments for damages and costs.

3.9.2 Setting Aside Vote/Setting Aside Decision:

In certain circumstances, it is only the vote of the elected official that will not becounted where it is discovered that the elected official has voted where he or shehad a disqualifying interest. In other situations, it will be the entire decision - theresolution or bylaw voted upon - that is set aside. Only the vote will beinvalidated for conflict of interest where the board or council is acting in theexercise of a ministerial or administrative function (sometimes called a legislativefunction) rather than a judicial or quasi-judicial one: Winter v Surrey, unreported,November 19, 1976. However, the loss of one vote may cause the resolution orbylaw to fail. "Quasi-judicial" decisions are those in which the board or amunicipal council decides an issue affecting the rights or privileges of anindividual, such as resolution to place a building bylaw infraction notice againsttitle to property, unsightly premises clean-up order, or a single lot rezoningapplication.


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Fortunately, section 261 LGA does provide some protection for bylaws, contractsor other proceedings of council by providing that they are not to be set aside ordeclared invalid by reason only that a person sitting and voting is not qualified tosit or vote as an elected official.

3.9.3 Disqualification procedure:

(a) Disqualification arising from the election

The procedure for disqualification of an elected official is now contained insections 143 to 147 of the Local Government Act. Such an application may bebrought only by a candidate, the Chief Election Officer or at least four electors.An application to the B.C. Supreme Court must be made within 30 days after thedeclaration of the official election results under section 136. The application isrestricted to certain grounds as follows:

- the candidate was not qualified to hold office at the time of the election;

- between the time of the election and the time for taking office, the candidateceased to be qualified to hold office;

- the election was not conducted in accordance with the Local Government Actor a regulation or bylaw under the Act;

- there was a contravention of the prohibitions against vote buying orintimidation under sections 151 or 152 of the Local Government Act or certainvoting offences under section 153(2)(a).

Pending the Court hearing, the elected official is entitled to take office, vote andact as an elected official (section 147(1)). However, if a person declareddisqualified by the Supreme Court appeals that decision, the person remainsdisqualified until the final determination of the appeal.

If a by-election is held during the conduct of the appeal, and the originalcandidate is determined by the Court of Appeal to have been qualified to holdoffice, then he or she is entitled under section 147(4) to take office for anyunexpired part of the term and the person elected or appointed to the officeduring the appeal proceedings ceases to hold office.

(b) Disqualification arising after the election

After an elected official takes office, then he or she can be disqualified as a resultof conduct occurring after the election in accordance with the procedures set outin section 111 CC. That section permits any ten electors or the local governmentto make an application to the Supreme Court for a declaration that an electedofficial is disqualified from holding office and that the office is vacant. The


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application may be made at any time during the elected official's term of office,but must be made within 45 days after the alleged basis of the disqualificationcomes to the attention of any of the persons making the application. The timewould appear to start running, then, from the time that the grounds fordisqualification first came to the attention of any one of the petitioners or amember of council (other than the councillor who is alleged to havethe conflict).

On hearing such an application, the Court may declare that the person isconfirmed as qualified to hold office or declare that the person is disqualified tohold office and that the office is vacant.

In the case of an electoral area director whose office becomes vacant throughresignation, disqualification or death, the alternate director will hold office untilthat person's successor takes office following the next election for the office(section 787(4)), and if the alternate director is unable or unwilling to hold officeas a director, then the board is to appoint another person who has thequalifications to be nominated as a director for the electoral area and that personshall hold the office as provided in the subsection.

4.0 NON-PECUNIARY CONFLICT OF INTEREST

4.1 Disqualifying Non-Pecuniary Bias:

It is important not to overlook the existence of a type of bias which disqualifies a personfrom discussing or voting on a matter because of a non-pecuniary interest. Thisdisqualification from participating and voting is now clearly statutory: section 101(2)(b)CC.

As a general rule, it may be stated that a member of council or a board is disqualifiedfrom voting on any question in which he or she has a personal interest distinct from thatof the inhabitants generally where the particular facts would give rise to a real likelihoodof bias.

Thus, a reasonable probability of bias is likely to be found when an elected officialparticipates in a discussion or votes on a matter pertaining to a member of his or herfamily. Even though one's pecuniary interests might not be affected by a benefitobtained by one's cousin, the family connection creates a substantial interest whichgives rise to a reasonable probability that the interested person is likely to be biasedwith regard to the matter.

Another situation where bias is likely to be found is where an elected official is amember of an identifiable group of persons as evidenced by membership in a society,association, congregation, club or team and the board or council deals with a matterinvolving that particular society, association, congregation, club or team for some sort ofgrant, benefit or approval. Membership generally denotes alliance with a cause, groupor special interest. Even ordinary membership in a club with restricted membership


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arising from religious, ethnic or some other specialized interest may be sufficient tocreate a reasonable probability of bias. On the other hand, where the association orsociety is a charitable or public interest organization unaffiliated with any identifiableethnic or interest group, there may be no special benefit arising from mere membershipin the organization. In such a situation it may only be the executive of the organizationthat would have a disqualifying bias.

A recent illustration of that was the B.C. Supreme Court level decision in HarwoodIndustries Ltd. v Surrey (1991) MPLR (2d) 228, in which the Court ruled that analderman who was a member of the Bible Fellowship Housing Society acted properly inabsenting himself from voting on a development application by the Bible FellowshipHousing Society to build 90 senior citizens' homes. In this situation the alderman didnot apparently stand to derive any pecuniary benefit from the development and thedevelopment was required to provide a needed social service which would be of generalbenefit to the community. The Court nevertheless concluded that the alderman'sactions in absenting himself from the vote were proper.

In Watson v Burnaby, (1994) 22 MPLR (2d) 136 (BCSC) on the other hand, afreemason who voted to approve construction of a replica historical Masonic Lodge wasnot disqualified as he had no financial interest in the matter and as the councillor wasnot a member of the Society actually applying for permission to construct the lodge.The Court set out the following test:

- the non-pecuniary interest must be substantial;

- the interest must go beyond what the elected official has in common with otherelectors; and

- the interest must be so related to the vote that the reasonably well informedperson would conclude that the interest may well inform the vote.

Another illustration of that is Starr v Calgary, (1965) 52 DLR (2d) (Alta. S.C), whereelected officials who sat as directors of the Calgary Stampede were held to be in conflictof interest when voting on matters concerning the Stampede, even though they hadbeen appointed to the Stampede Board by council.

On the other hand, in Save St. Ann's Coalition v Victoria (1991) 5 MPLR (2d) 331(BCCA), the B.C. Court of Appeal found that a member of municipal council who hadbeen appointed by council to the Provincial Capital Commission could vote at councilmeetings on matters involving the Provincial Capital Commission. The Courtdistinguished that situation as a situation where the legislative scheme itself created asituation where one person served on two public bodies. Similarly, a municipal directorsitting on a regional district board is not disqualified from voting in a matter affecting theinterest of his or her municipality.


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4.2 Consequences of Vote:

A person who votes in a situation where he or she has a non-pecuniary conflict ofinterest will not be disqualified from office, but the vote may be set aside in the samemanner as a vote involving a conflict of interestwith a pecuniary aspect.

5.0 PROCEDURE AT MEETING

5.1 Basic Procedure:

The rules governing the procedures to be followed at a board or council meeting wherethere is a conflict are found in subsections 100(2) or 101(1) of the Community Charter.

Where an elected official who considers that he or she is not entitled to participate in thediscussion of a matter or to vote on a question in respect of the matter, that person is todeclare this conflict of interest and state the general nature of why he or she considersthat there is a conflict.

After making the declaration, the member:

is not to take part in the discussion of the matter;

is not entitled to vote on any question in respect of the matter;

is immediately to leave the meeting or that part of the meeting during which the

matter is under consideration;

shall not attempt in any way, whether before, during or after the meeting, to

influence the voting on any question in respect of the matter.

If an elected official contravenes any of these, he or she may be found to have been ina conflict of interest.

5.2 Recording Reasons:

The person taking the minutes of the meeting is to record the member's declaration, thereasons, the times of the member's departure from the meeting and, if applicable, themember's return. The person presiding at the meeting has a duty under the Act toensure that the member is not present at the meeting at the time of any vote on thematter.

5.3 Influencing the Voting:

Amendments to the Act in 1999 have confirmed that an elected official who has aconflict of interest cannot attempt to influence the vote either before or after themeeting. Section 101(2)(d) of the Community Charter prohibits the elected official from,among other things, attempting in any way to influence the vote on any question,before, during or after the meeting.


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An elected official who answered questions as a person having knowledge followingdisclosure was held to have violated the Act inadvertently: Re: Verdun vRupnow (1980)30 OR (2d) 675. However, an elected official who called other members of council bytelephone in respect of a matter before council in which he had an interest was found tohave contravened the Act: Stubbs v Greenough (1984) 25 MPLR 26.

A mayor who made remarks about the issue in respect of which he had a conflict duringthe meeting, even though he did not vote on the matter involving the release of his landfrom a planning reserve, was held to be in violation of the Ontario Act: Graham vMcCallion (1982) 20 MPLR 91 (Ont. Div. Ct).

A recent Ontario decision, Jaffary v. Greaves [2008] OJ No. 2300, confirms that thephrase "attempt in any way whether before, during or after the meeting to influence thevoting" is to be given a plain meaning that reflects the real intention of the legislature,and not a narrow or restricted meaning. Accordingly, an elected official who hadapplied to a council committee for a fee deferral was held to have attempted to influencea vote at a council meeting. The council member's advocacy at the committee stagewas clearly a contravention of the intent of the legislation, even though in Ontario thelegislation did not clearly impose the duty to declare a conflict at the committee stage asit does in British Columbia.

5.4 Loss of Quorum:

If, as a result of the requirement to declare a conflict of interest and leave a meeting thenumber of members of council or a board who may discuss and vote on the matter fallsbelow a quorum, the local government may apply to the Supreme Court of B.C. for anorder that all or specified members of the board or council may discuss and vote on thematter. The Court has authority to make any conditions and directions in its order as itconsiders appropriate.

6.0 NON-DISQUALIFYING BIAS

The Supreme Court of Canada has confirmed in the Save Richmond Farm Land Societyv Richmond 2 MPLR (2d) 288 (SCC.) and Old St. Boniface Residents Association vWinnipeg 2 MPLR (2d) 217 (SCC) cases that a political bias will not disqualify anelected official from voting on a matter if his or her mind is not totally closed torepresentations which may be made by the other side. One's political bias should notbe confused with the type of bias that arises out of having a pecuniary or personalinterest in a matter that comes before the board or council. The Supreme Court ofCanada has recognized that local government elected officials arrive in office withpoints of view, perceptions, ideas and often strongly held beliefs, and that it isunrealistic to expect elected officials to shed these upon taking office.

The Supreme Court of Canada has stated that the test for bias is whether an electedofficial has prejudged the matter for consideration so completely as to be no longer


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capable of persuasion. It is only where the member has completely closed his or hermind so that it is incapable ofchange that disqualifying bias will be found.

7.0 GIFTS, CONTRACTS AND INSIDER INFORMATION

7.1 Gifts

The Community Charter now prohibits the acceptance ofgifts, fees or personal benefitsconnected with a member's performance of official duties: s. 105(1) CC.

Allowance is made for gifts received as an incident of the protocol or social obligationsof office: s. 105(2)(a) CC and for compensation authorized bylaw and campaigncontributions.

Protocol/social obligation gifts with a value over $250 must be disclosed by filing adisclosure statement with the corporate officer: s. 106(2) CC.

Acceptance of a forbidden gift or benefit or non-disclosure of a gift or personal benefitcan result in disqualification: s. 105(3) CC.

7.2 Contracts

The Community Charter requires reporting of contracts with council members orpersons who were recently council members to council: s. 107(1) CC.

The corporate officer should do this report.

The council member has his or her own obligation to report the contract interest to thecorporate officer: s. 107(2) CC.

A council member who does not disclose may be disqualified from office: s. 107(3) CC.

7.3 Insider Information

The Community Charter prohibits council members and former council members fromusing information gained in the performance of the member's office for gaining orfurthering a direct or indirect pecuniary interest: s. 108(1) CC.

A council member who uses insider information is disqualified from office: s. 108(2) CC.

7.4 Are there Exceptions to Disqualification?

Inadvertent error or error of judgment in good faith will relieve against disqualification:ss. 105(3), 106(3), 107(3) and 108(2) CC.


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8.0 DEALING WITH BREACH OF THE ACT

An elected official who has breached the provisions ofthe Community Charter relatingto conflict of interest, use of inside influence, outside influence, the acceptance ofgiftsor disclosure of contracts, gifts or contracts, is liable to disqualification from office.Under section 111 of the Community Charter, an application may be made to theSupreme Court for a declaration that a councillor is disqualified by the municipality or byten or more electors. The application must be made within 45 days of the events givingrise to the disqualification come to the attention of any petitioners or members of council(other than the subject of the application).

9.0 CRIMINAL CODE

It must not be forgotten that the Criminal Code also contains some sections applicablein particular to elected officials of local governments.

The Criminal Code, R.S.C. 1985, Part IV - Offences Against the Administration of Lawand Justice.

Section 118 - Definition of "official" means a person who:

(a) holds an office, or

(b) is appointed to discharge a public duty.

Section 122 - Breach of trust by public officer

"Every official who, in connection with the duties of his office, commitsfraud or a breach of trust is guilty of an indictable offence and liable toimprisonment for a term not exceeding five years, whether or not the fraudor breach of trust would be an offence if it were committed in relation to aprivate person."

An accused town mayor was found to have been properly convicted upon evidence ofmisleading a constituent as to the value of that person's land and endeavouring toprocure it for himself for personal profit: R. vMcKitka (1982) 35 BCLR 116 (CA).

Section 123 - Municipal corruption

Offering loans, rewards, advantages or benefits of any kind to induce anofficial to abstain from voting, to vote in favour or against a measure,motion or resolution, to aid in procuring or preventing the adoption of ameasure, motion or resolution or to perform or fail to perform an official actis contrary to the Criminal Code.


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This is an indictable offence with a maximum penalty of five years'imprisonment.

Section 124 - Selling or purchasing office

Indictable offence - maximum penalty five years in prison.

Section 125- Influencing or negotiating appointments or dealing in offices

Indictable offence - maximum penalty five years in prison.

10.0 CONCLUSION

The consequences of a finding that an elected official has voted on a matter in which heor she has a disqualifying pecuniary interest are serious. The standard of conductexpected of elected officials is high. Members of regional district boards and municipalcouncils should try to anticipate conflicts of interest and obtain and follow competentadvice where necessary.


COMMUNITY CHARTER

Disclosure of conflict

100. (1) This section applies to council members in relation to

(a) council meetings,

(b) council committee meetings, and

(c) meetings of any other body referred to in section 93 [application ofopenmeeting rules to other bodies].

(2) If a council member attending a meeting considers that he or she is not entitled toparticipate in the discussionof a matter, or to vote on a question in respect of amatter, 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 themember considers this to be the case.

(3) After making a declaration under subsection (2), the council member must not doanything referred to in section 101 (2) [restrictions on participation].

(4) As an exception to subsection (3), if a council member has made a declarationunder subsection (2) and, after receiving legal advice on the issue, determines thathe or she was wrong respecting his or her entitlement to participate in respect ofthe matter, the member may(a) return to the meeting or attend another meeting of the same body,

(b) withdraw the declaration by stating in general terms the basis on which themember has determined that he or she is entitled to participate, and

(c) after this, participate and vote in relation to the matter.

(5) For certainty, a council member who makes a statement under subsection (4)remains subject to section 101 [restrictions on participation if in conflict].

(6) When a declaration under subsection (2) or a statement under subsection (4) ismade,(a) the person recording the minutes of the meeting must record

(i) the member's declaration or statement,

(ii) the reasons given for it, and

(iii) the time of the member's departure from the meeting room and, ifapplicable, of the member's return, and

(b) unless a statement is made under subsection (4), the person presiding atthat meeting or any following meeting in respect of the matter must ensurethat the member is not present at any part of the meeting during which thematter is under consideration.

2003-26-100.

Restrictions on participation if in conflict

101. (1) This section applies if a council member has a direct or indirect pecuniary interestin a matter, whether or not the member has made a declaration under section 100.

(2) The council member must not

(a)

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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, toinfluence the voting on any question in respect of the matter.

(3) A person who contravenes this section is disqualified from holding an officedescribed in, and for the period established by, section 110 (2), unless thecontravention was done inadvertently or because of an error in judgment made ingood faith.

2003-26-101; 2003-52-539.

Restrictions on inside influence

102. (1) A council member must not use his or her office to attempt to influence in anyway a decision, recommendation or other action to be made or taken(a) at a meeting referred to in section 100 (1) [disclosure ofconflict],

(b) by an officer or an employee of the municipality, or

(c) by a delegate under section 154 [delegation ofcouncil authority],

if the member has a direct or indirect pecuniary interest in the matter to which thedecision, recommendation or other action relates.


2003-26-102; 2003-52-539.

Restrictions on outside influence

103. (1) In addition to the restriction under section 102, a council member must not usehis or her office to attempt to influence in any way a decision, recommendation oraction to be made or taken by any other person or body, if the member has adirect or indirect pecuniary interest in the matter to which the decision,recommendation or other action relates.


2003-26-103; 2003-52-539.

Exceptions from conflict restrictions

104. (1) Sections 100 to 103 do not apply if one or more of the following circumstancesapplies:(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 wouldbe liable for the local service tax;

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COMMUNITY CHARTER

(c) the matter relates to remuneration, expenses or benefits payable to one ormore council members in relation to their duties as council members;

(d) the pecuniary interest is so remote or insignificant that it cannot reasonablybe regarded as likely to influence the member in relation to the matter;

(e) the pecuniary interest is of a nature prescribed by regulation.

(2) Despite sections 100 to 103, if a council member

(a) has a legal right to be heard in respect of a matter or to makerepresentations to council, and

(b) is restricted by one or more of those sections from exercising that right inrelation to the matter,

the council member may appoint another person as a representative to exercisethe member's right on his or her behalf.

2003-26-104.

Restrictions on accepting gifts

105. (1) A council member must not, directly or indirectly, accept a fee, gift or personalbenefit 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 orsocial 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 alocal government.


2003-26-105; 2003-52-539.

Disclosure of gifts

106. (1) This section applies if

(a) a council member receives a gift or personal benefit referred to in section105 (2) (a) that exceeds $250 in value, or

(b) the total value of such gifts and benefits, received directly or indirectlyfrom one source in any 12 month period, exceeds $250.

(2) In the circumstances described in subsection (1), the council member must filewith the corporate officer, as soon as reasonably practicable, a disclosurestatement indicating(a) the nature of the gift or benefit,

(b) its source, including, if it is from a corporation, the full names andaddresses 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 officedescribed in, and for the period established by, section 110 (2), unless the

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