Halton Hills and Equity Waste case

Note that this case involved an application for declaratory relief in respect of alledged conflicts of interest. It involved voting where land was held in a certain area and the deicsions revolves around the idea of perception of conflict and ultimately around reasnable apprehension of bias..

BELLEGHEM J.:

The Application

 1      The applicant Marilyn Serjeantson is Mayor of the Town Halton Hills.  She is thus a member of Halton Regional Council.  I am asked to decide:  Will she have a conflict of interest if she votes on a regional council servicing plan, the "Halton Urban Structure Plan" (H.U.S.P.)?

Background

 2      The southernmost strip of Halton Hills contains an unserviced corridor area.  The H.U.S.P. vote could affect allocation of potential service to the corridor.  The two respondents, Equity Waste Management of Canada and Panorama Investment Group Ltd., had their industrial development in the corridor halted when the town passed a by-law temporarily freezing corridor development.  The Mayor was then a councillor.  The respondents had Justice Greer quash the by-law on September 15, 1994.  She found "that the council's exercise of its authority was not bona fide and was not exercised in good faith".  She found "that many councillors were simply concerned about their own re-election in the forthcoming November elections and that Halton Hills sought to clothe the interim control by-law with planning principles after the fact".

 3      Equity and Panorama then personally sued the Mayor, along with other councillors.  The suit accuses the Mayor of "malicious and deliberate abuse of public office calculated to injure the plaintiff".  The amounts claimed exceed 6.5 million dollars.

 4      The town has appealed Justice Greer's decision. In the meantime, the affected councillors, including the Mayor, properly declare conflicts of interest in matters involving Equity and Panorama.

The Argument

 5      The Panorama and Equity Developments are well advanced.

 6      The Mayor and the town argue that Equity and Panorama's damages, if any, have "crystallized".  They reason that there are no other decisions which the Mayor can make, particularly on H.U.S.P., that will affect the damages claimed.

Regional Council Meeting

 7      On November 29, 1995, Regional Council is to vote on H.U.S.P.  That vote could affect the allocation of potential water and sewer services to the corridor.  The Mayor wants the area serviced to increase Halton Hills' industrial assessment.  The provision or lack of provision of such services to the corridor would affect Panorama and Equity. Understandably, neither Panorama nor Equity are opposing the application by the Mayor to be free to vote on the issue. They stand to benefit from a favourable vote.  The provision of services, by having the region allocate some of them to the corridor, would be financially beneficial to the Town of Halton Hills.  Nevertheless, some Halton Hills residents may oppose anything that assists development in the corridor.

The Municipal Conflict of Interest Act and the Councillors

 8      The Municipal Conflict of Interest Act provides for the automatic unseating of any council member who votes on any public matter in which he or she has any financial interest.

 9      The Act is crystal clear.  It is harsh.  It must be.  It controls the actions of council members.  They are the repositories of the citizens' highest trust.  They must at once be strong in their debate to put forward their electorates' concerns; they must always have an ear to the dissent in their voters.  They must not only be unshirkingly honest -- they must be seen to be so -- by those who voted for them, and those who voted against them.  Their role, though noble in its calling, is demanding in its execution.  It is onerous in the extreme.

Analysis

 10      The decision to promote allocation of potential regional services to the corridor is properly a political one. It is one which the councillors will decide in the exercise of their obligation to discharge their public trust as councillors.  They must be free to make that decision with neither fear of loss, nor hope of personal gain, arising from their decision.  They must also be free to vote on any such issue with no fear of being tarnished by public perception that their vote was in any way influenced by any personal interests.  Sopinka J. of the Supreme Court of Canada defines this conflicting personal interest as one "so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty".  (See Old St. Boniface Residents Association Inc. v. The City of Winnipeg and the St.Boniface-St. Vital Community Committee, [1990] 3 S.C.R. 1170 at 1196.)

 11      Holland J. sitting in the Ontario Divisional Court echoes the same concern for public perception:

The question which must be asked and answered is:

"Does the matter to be voted upon have a potential to affect the pecuniary interest of the municipal counsellor?"

       It is of no consequence, in my opinion, what the nature of the effect might be - for his betterment or otherwise - as long as it may be seen by the public to affect that pecuniary interest.  (Re Greene and Borins, 50 O.R. (2d) 513 at 522)

How the vote is cast, its outcome or even the motive of the municipal official are of no consequence.  The purpose of the statute is to prohibit any vote by one who has a pecuniary interest in the matter to be considered.

 12      The Act itself provides an exception for "an interest of the member which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member".  The public may not regard the suit by corridor developers and the vote on corridor services as "remote".

Result

 13      The Mayor of Halton Hills is required to declare a conflict of interest when participating in matters concerning H.U.S.P.

Rationale

 14      The reason for this may be simply stated.  A reasonably well-informed member of the public might see a vote on H.U.S.P. as enhancing or detracting from the development potential of the Equity and Panorama lands, to the extent that it allocates potential regional services to the corridor. Though the Mayor may have no personal interest, in fact, in how the H.U.S.P. vote could affect those developments, the public perception may be that she does have such an interest. Her personal lawsuit with Equity and Panorama caused the conflict.

 15      It is tragic that the Mayor and other councillors are hamstrung in their efforts to represent their electorate because of the outstanding lawsuit.  They will continue to be shackled in the discharge of their duties respecting H.U.S.P. unless and until the "personal interest" that creates the conflict is extinguished.  A successful appeal of the order of Justice Greer, or resolution of the personal lawsuits may free them.  It does not appear to me that a suit against the town alone would create a conflict for the Mayor.

 16      In raising the issue, the Mayor shows wisdom and prudence.  She is caught between her public conscience and a private lawsuit -- albeit one arising from her councillor role.  She must be honest and appear to be so.

BELLEGHEM J.

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