Between Denis Smith, applicant, and Clermont Lapointe, respondent[2001] O.J. No. 1988
Ontario Superior Court of Justice
Heard: February 21, 2001. Judgment: March 13, 2001. This was an application by Smith for declarations that the respondent Lapointe contravened the Municipal of Interest Act, that Lapointe's seat was vacant, and that he was ineligible for a seat on the municipal council for seven years. Lapointe was a councillor of the town of McGarry. Smith, an elector of the town, alleged Lapointe engaged in several activities which amounted to a conflict of interest under the Act. The case revolves around what an interest is and failure to disclose an interest. GLITHERO J.:— The applicant is an elector in the Township of McGarry. The respondent is and was at all material times the Reeve, and hence a member of the municipal council of the same township. The applicant seeks a declaration that the respondent has contravened the provisions of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, an order declaring the respondent's seat vacant, declaring him ineligible for a seat on municipal council for a period of seven years, and costs. ¶ 2 The relevant provisions of that Act are as follows:
¶ 3 In this application it is alleged that the respondent contravened the provisions of the Act in respect of three matters, which will for sake of convenience be considered as the "curling club issue", the "clerk treasurer issue," and the "grocery bill issue". ¶ 4 In respect of those three issues, the Act mandates a three-step inquiry. Firstly, I must determine whether there is a direct or indirect pecuniary interest, deemed or otherwise, such as to engage section 5. If so, I must consider whether any of the section 4 exceptions apply such as to make section 5 inapplicable. If section 5 applies, and the section 4 exceptions do not, I must consider whether the circumstances warrant the application of section 10(2). ¶ 5 The Township of McGarry is a small municipality in Northern Ontario having a population of approximately 1,200 to 1,500 people. ¶ 6 The respondent has been a member of township council since 1981, and has been the reeve since 1988. He was re-elected in November, 2000 and continues in that position. ¶ 7 The respondent did not receive any orientation from the municipality as to rules governing the conduct of a council member when first elected. He has subsequently attended a course at which conflict of interest issues were discussed. After that conference he did not read the materials distributed, and he has not read the entire Municipal Conflict of Interest Act, but has read sections he thought to be applicable from time to time. ¶ 8 The record before me reflects a few instances where the respondent has declared a conflict of interest, or has left meetings, on occasions when his daughter's contract position with the township was scheduled to be discussed. ¶ 9 There is no allegation that the respondent benefited personally by any of the alleged breaches, nor is there any allegation that he obtained any property which ought to be returned to the municipality. "The Curling Club Issue" ¶ 10 The McGarry Curling Club was incorporated in late 1975 as a corporation without share capital and is a non-profit organization located on property in Virginiatown, Ontario. It was originally built by a private company in the 1940's and was conveyed to the Township in April, 1986. Since 1986 the township and the curling club were parties to a series of agreements whereby the club operated and managed the curling club property, but ownership remained with the township, which had responsibility for maintenance and repairs. Those costs to the township approximated $10,000 per year. ¶ 11 These agreements provided that a member of township council was entitled to attend the curling club executive meetings, and the curling club was required to submit to the township for approval recommendations for members of the executive. ¶ 12 It is agreed that the respondent was at all material times a member of the curling club. ¶ 13 It is also clear that the respondent was elected as a director of the curling club at a May 9, 1998 meeting of the club, in the same manner as all other directors were elected. In the affidavit filed by the respondent he swore to being a director of the curling club since 1994. On cross-examination on that affidavit, he took the position that from 1994, and up to his election on May 9, 1998, he was the township's appointed representative to the curling club executive, whether or not it was appropriate to call him a director. The curling club records filed on this application do not contain any material with respect to the election of directors prior to the 1998 meeting. The respondent was unable to produce any township council resolution appointing him as its representative to the curling club board. The by-laws of the curling club do not provide for the township to have a representative as director, but as earlier indicated, agreements between the township and the club entitled township council to have a member attend the curling club executive meetings, and the club was required to submit to the township for approval recommendations for members of the executive. No other evidence was placed before me, either in the form of evidence from curling club members, or from other members of township council, on this issue of the respondent's status as either director or township representative on the club's board. The respondent's evidence continues that in that period from 1994 to 1998, when he was the township's representative on the club's board, that if he could not attend a meeting of the club, another member of council would go in his place. It is clear that his services as a director of the curling club, at all times, were unpaid. ¶ 14 In the fall of 1996 the curling club initiated discussions with the township concerning a possible sale of the curling club property from the township to the club. At a township council meeting on October 15, 1996 the council passed by-law number 96-11, being a by-law to convey the curling club property to the curling club for the sum on $1. The respondent attended that meeting as reeve and did not declare any conflict of interest, although at that time he was admittedly a member of the curling club and either a director of it or the township's representative. He does not recall whether he participated in the discussions or voted on the bylaw. The minutes of the meeting do not indicate whether he did so. He signed the by-law as reeve. ¶ 15 A "special meeting" between township council members and executives of the curling club took place on December 2, 1996 for the purpose of considering amendments proposed by the curling club to by-law number 96-11. Those proposed amendments had been formulated by the curling club executive at a meeting at which the respondent was not in attendance. He was present at the December 2, 1996 council meeting, as reeve. The minutes of that meeting do not specifically indicate whether the respondent participated in the discussions, or whether there was any formal vote. He assumes he participated in the discussions. He failed to declare any conflict of interest at that meeting, although he was clearly in attendance. At that meeting the township council agreed to provide snow removal for the club's parking lot. ¶ 16 At an inaugural council meeting on December 1, 1997, in response to a question from a member of the public, the respondent reeve indicated that the curling club now owned the building, only later to realize that he was in fact in error as although by-law 96-11 authorized the transfer of the property, a transfer had yet to be registered. At a township council meeting on March 24, 1998 a member of the public again questioned the ownership of the curling club premises and the respondent advised that the township continued to own the curling club property, notwithstanding the previous by-law authorizing its sale. At that council meeting the respondent declared a conflict of interest with respect to a different matter, but declared no conflict of interest with respect to the curling club matter, although that only arose by way of question from the public. That meeting was followed immediately by a closed meeting of council, the same day, at which the respondent was present. He declared a conflict of interest with respect to the renewal of a contract township position held by his daughter, but declared no conflict of interest with respect to discussions concerning the curling club property. The minutes of that closed meeting reflect that council recommended that the respondent arrange a special meeting with members of the curling club to discuss the curling club property. ¶ 17 A special meeting of township council took place on March 31, 1998 with the respondent present as reeve, and members of the curling club present. The respondent declared no conflict of interest. At that meeting the township voted to give the curling club a one-year renewable lease, and repealed by-law 96-11. There is no evidence that the respondent participated in the vote of township council, but he assumes he participated in the discussions and the minutes reflect that he congratulated the club on its work. ¶ 18 The next day, April 1, 1998, there was yet another special meeting of township council to discuss the curling club property. The respondent was present as reeve. He did not declare any conflict of interest. At that meeting township council voted to declare the curling club property to be surplus land, resolved to sell the property, and rescinded the resolution of the preceding day giving the curling club a one-year renewable lease. The minutes of that meeting do not reflect whether the responded voted or participated in the discussions, but the respondent assumes he likely participated in the discussions and has no recollection as to whether he participated in the vote on the resolutions. ¶ 19 Pursuant to those resolutions, the curling club property was sold to the curling club on May 14, 1998 for the sum of $1, and the agreement between the parties provided the township with a right of first refusal should the club decide to sell the property, for the sum of $1. ¶ 20 The respondent had been elected, in the normal fashion, a director of the curling club on May 9, 1998, subsequent to the council meetings authorizing the sale of the property, but prior to its actual transfer. ¶ 21 It is admitted that the respondent did not declare a conflict of interest with respect to the curling club issue at any of the township council meetings held to discuss the issue. His evidence on this application is that it never crossed his mind to do so, as he felt he had no conflict of interest and accordingly that participation in the discussions or votes on the issue would not contravene the Act. His evidence is that he thought the sale to be in the community interest because there had been complaints from taxpayers as to the cost to the township of keeping up the curling club property when the township owned it. He felt that he was not in a position of having a pecuniary interest as the curling club was a non-profit organization, he was not being paid as a director or township representative of the curling club, and paid fees to belong to the club as did any other member. "The Clerk-Treasurer Issue" ¶ 22 Diane Pearson was hired as clerk-treasurer of the township for a six-month probationary period by resolution of township council passed September 3, 1998. On October 6, 1998 council passed a by-law appointing Pearson as clerk-treasurer/administrator, effective September 28, 1998, until March 28, 1999. ¶ 23 As clerk-treasurer/administrator, Pearson's responsibilities included personnel matters relating to township staff and she was authorized and directed by township council to carry out performance evaluations on staff members. She was authorized to make recommendations to township council concerning the hiring and firing of staff, and with respect to pay increases or decreases, but the ultimate decision on such matters was reserved to council. ¶ 24 The respondent's daughter was the administrative assistant for the township on a contract basis which was to have expired on August 29, 1998, but which was extended by council to October 29, 1998 so that a new township clerk, when appointed, could evaluate her performance and make recommendations. The respondent declared a conflict of interest and left the closed township council meeting on August 26, 1998 when the matter of his daughter's employment contract was discussed, and he did not attend a special meeting held on August 27, 1998 to discuss the same issue. ¶ 25 Pearson subsequently recommended that the respondent's daughter be hired full time as the township's administrative assistant and this recommendation was adopted by council at a meeting on November 1, 1998. The respondent did not attend that meeting. ¶ 26 Pearson, as clerk-treasurer/administrator, had the ultimate responsibility at a staff level for supervision of the respondent's daughter, although on a day-to-day basis the daughter often reported through the township bookkeeper. ¶ 27 There is no evidence of any animosity or job friction as between Pearson and the respondent's daughter, and as earlier indicated, Pearson had evaluated the daughter's performance in a positive way and had recommended her full time hiring. ¶ 28 Township council carried out evaluations of Pearson's employment as part of the process of determining whether it should be extended past the six-month probationary period. Township council evaluated her performance on December 2, 1998, February 25, and March 11, 1999. The respondent participated in those evaluations and discussions as he viewed her evaluation to be a matter of significance to the township. ¶ 29 It is the respondent's evidence that it never occurred to him that he could be in a position of conflict of interest arising from the fact that his daughter was employed by the township, and that her performance would be evaluated by Pearson. It is also his evidence that his daughter never expressed any interest nor made any application for Pearson's position. ¶ 30 Following the first evaluation of her performance, Pearson expressed concern that she was being evaluated by persons related to employees under her supervision. She advised council that she had legal advice that this created a conflict of interest. She wrote the township solicitor and obtained a written opinion that there was no conflict of interest and that council members should be involved in her performance evaluation. The respondent received oral advice to the same effect during a telephone conversation with the same township solicitor. ¶ 31 It appears that Ms. Pearson was directed by council to obtain another legal opinion concerning a possible conflict of interest, and that she sent either one or two letters by facsimile transmission on March 15, 1999 to a Mr. Russell. Mr. Russell provided his opinion in a letter dated March 17, 1999 and faxed that same day. It was his opinion that the respondent would have an indirect pecuniary interest, and would be in a position of conflict of interest, if he participated in the evaluation proceedings concerning Pearson. The evidence indicates that the respondent was aware that this additional opinion had been sought. The evidence also indicates that he did not receive a copy of the opinion, and was not aware that the letter of opinion had been received by the township prior to his participation in this issue at the March 18, 1999 meeting. There is no evidence that he made any inquiries as to whether the opinion had been received. It appears on the evidence that the agenda for this March 18th meeting was not circulated before the meeting was conducted. ¶ 32 At a special meeting of township council on March 18, 1999, a motion that Pearson be hired as full time clerk-treasurer/administrator was defeated by a vote of three to two, with the respondent being an active participant in the meeting and one of the three members of township council who voted against the motion. The respondent did not declare any conflict of interest, believing as he did that his daughter's employment status did not create any such conflict, and in reliance on the opinion of the township solicitor. "The Grocery Bill Issue" ¶ 33 The respondent is a fifty percent owner of the only grocery store in Virginiatown, Ontario, which he operates in partnership with his son. ¶ 34 At township council meetings on January 12 and April 6, 1999, council passed resolutions authorizing the payment, as funds became available, of outstanding accounts in the amount of $155,380.32 and $164,328.33, respectively. These resolutions dealt with the outstanding accounts in omnibus form, and did not detail the specific accounts owing. ¶ 35 A township cash disbursement journal reveals one account payable to the respondent's grocery store in the amount of $36.16, and indicates that it was paid on November 24, 1998, a date prior to either of the two aforementioned council meetings. ¶ 36 It is admitted on the respondent's behalf that if any of the accounts owing to his grocery store were included in the omnibus accounts payable authorized at either of the two township meetings, he would have an indirect pecuniary interest. There is no evidence before me that any accounts payable to his grocery store were in fact included amongst the accounts payable passed by the omnibus resolutions of council on the two dates. Principles Identified in Case Law ¶ 37 In RE: Moll and Fisher, et al. (1979), 23 O.R. (2d) 609, the Divisional Court upheld a trial finding that two members of a board of education had violated the Act by participating in deliberations concerning a collective agreement with secondary school teachers as on the evidence. Those deliberations would likely affect their spouses as elementary school teachers. The Court made several observations as to the purpose of this legislation in holding as follows:
¶ 38 The Court held that it does not matter if the interest of the family member, which is deemed to be that of the council member, is direct or indirect. ¶ 39 The Court further held that the interests of these councilors were neither remote nor insignificant as the interests of their family purse was in conflict with their public duty. ¶ 40 In RE: Greene and Borins (1985), 50 O.R. (2d) 513, the Ontario Divisional Court held two municipal councilors to have violated the Act by voting on land development proposals in respect of lands very close to properties owned by their family members, and by failing to disclose their interests. In that case the Court held that it was not possible to set out exhaustive guidelines for what constitutes a pecuniary interest, as each conflict of interest claim must be determined on its own facts. The Court further held that the relevant question requiring an answer is, "Does the matter to be voted upon have a potential to affect the pecuniary interest of the municipal councilor?" In that case the councilor gave evidence that he had considered the issue and concluded that no conflict of interest existed. He recognized, however, that it could be said that he was in a position of conflict. He did not seek advice and instead chose to take the risk by not declaring his interest and abstaining from voting. In so doing he ran the risk that a Court applying an objective test could find him in breach of the statute. ¶ 41 In Edwards v. Wilson (1980), 14 M.P.L.R. 128, two municipal council members were alleged to have breached the legislation by participating in and voting on a proposal to develop a shopping mall on the outskirts of town in circumstances where they were associated with downtown businesses. It was held that their interest was not one shared with all other rate payers, but rather was an indirect pecuniary interest in avoiding the competition which would flow from approval of the mall. It was held however that the contravention was an error in judgment in that they had sought and relied on the opinion from their solicitor to the effect that their interests were too remote as to constitute a legal conflict of interest. The Court held that an error in judgment, as that phrase is used in s. 10(2) can arise either from a mistake of fact or of law. Reliance on a legal opinion was held to be evidence supporting that it was an error in judgment, although the Court noted that reliance on a legal opinion will not necessarily always be sufficient. ¶ 42 In Begin v. McInnis [1990] O.J. No. 2716, a municipal councilor was held to have breached the act in circumstances where he acted as chartered accountant for a client who was making the application to council in which he participated. In that case at the council meeting inquiries were made as to whether the respondent municipal councilor acted as the accountant for the applicant companies, and he admitted that he did, but denied any conflict of interest. It was held that he did have a conflict of interest in that if his client succeeded in their application to counsel, they prospered and so in directly would he. It was held that the municipal councilor was deliberately and willfully blind in not seeking a legal opinion about his position, and for that reason it could not be said that he acted through inadvertence or by reason of a bona fide error in judgment. ¶ 43 In Mino v. D'Arcey (1991), 2 O.R. (3d) 678, a municipal councilor was held to have breached the Act in voting at council to authorize a construction contract in which he became a subcontractor. It was held that the fact that his profit was some $300 was not so inconsequential as to constitute an insignificant interest within the meaning of the Act, and his experience as a municipal councilor and his familiarity with the Act precluded a finding that he acted through a bona fide error of judgment. It was held though that his actions were the result of inadvertence. At page 682 the following was observed in respect of what constitutes a pecuniary interest:
¶ 44 While years of experience as a municipal councilor militated against a finding of bona fide error in judgment, on the other hand a history of performance indicating many prior declarations of conflict of interest can support a contention that any contravention was unintentional. ¶ 45 In Jafine v. Mortson, 43 O.R. (3d) 81, a 1999 judgment of MacKinnon, J. in Action No. 49903/98, the Court observed that the municipal council member's intention is a factor to consider in the saving provisions of the paragraph 10(2), but it is not a consideration in the application of s. 5(1) of the Act, which deals with a member's actions, objectively viewed. That case also accepted as appropriate the portion of the judgment of Rutherford, J. in Campbell v. Dowdall 12 M.P.L.R. (2d) 27 at 39 that "errors in judgment" in s. 10(2) is intended to apply to those which "result from honest and frank conduct, done in good faith albeit involving erroneous judgment". ¶ 46 In Benn v. Lozinski (1982), 37 O.R. (2d) 607, it was held that the respondent member of a school board had contravened the provisions of the Act in voting on a contract between the school board and its teachers, at a time when he was employed by that board of education and was a member of the teachers' union. It was held, however, that the saving provision, now s. 10(2) applied in circumstances where he had sought a legal opinion from the school board solicitor, who advised him to get a further legal opinion elsewhere, following which he then received and acted on advice from his own counsel that he would not be in a position of conflict if he voted. Given that he acted on that opinion, and given that he had voted on similar contracts in the past, it was held that his contravention was committed by reason of error in judgment and was excused under s. 10(2). At page 614 it was held that, "The power of disqualification is one which should only be exercised in a plain case upon very clearly proved facts. ¶ 47 In RE: Blake and Watts (1973), 2 O.R. (2d) 43, two municipal councilors who were also employees of the board of education were found to have contravened the act in circumstances where they voted on a motion by council involving the remission of taxes to the board of education. At the very meeting where the councilors voted on the issue, the city solicitor provided an opinion that the respondents were indeed in a position of conflict. Nevertheless, they participated fully in the debate and voting. In such circumstances it was held that their actions could not be said to be inadvertent or by reason of bona fide error in judgment, but rather constituted a willful blindness or reckless disregard for the legal consequences of their actions. As it was found that they acted willfully, consciously and with full knowledge they were contravening the Act, it was held they had not acted out of a bona fide error in judgment. It was further held that the error in judgment branch of what is now s. 10(2), at the time required to be a "bona fide error in judgment", is a more liberal standard of exemption than the "inadvertence" branch and that it involves and requires a complete consideration of the entire factual background. ¶ 48 In Sheehan v. Hart [1993] O.J. No. 1726, a municipal councilor was found to have breached the Act in circumstances where he participated and voted on a request for a compliance audit in respect of his election campaign finances. It was there noted that a municipal councilor must be honest, forthright and open and act in good faith, but the law does not require perfection of conduct. ¶ 49 In respect of the curling club issue, the respondent is said to have breached the Act as a result of his role as director and by his role as member of the curling club. In terms of his involvement as director, his election to that post on May 9, 1998 was after any of the meetings at which the curling club issue was discussed, although it was just prior to the actual transfer of the property from the township to the curling club. In my opinion it cannot be said that he contravened the Act in his position of elected director. ¶ 50 While he originally stated in his affidavit that he was a director since 1994, his position as expanded on cross-examination makes it clear that his involvement with the executive of the curling club was in his opinion that of the township's appointee. While he can produce no township resolution appointing him as such, and while the curling club's by-laws do not provide for such a position, his sworn evidence is that his role was that of appointee. No other evidence is placed before me on that issue, in the form of affidavits from either curling club representatives or other municipal councilors. Given that the agreements provided that township council was entitled to have a member attend the executive meetings of the club, and given the respondent's unchallenged sworn evidence that his role prior to 1998 was that of township appointee, I am not prepared to reject his evidence. Accordingly, s. 4(h) of the Act renders s. 5 of the Act inapplicable to the respondent in his role qua appointee. ¶ 51 Regardless, it is admitted that at all material times he was a member of the curling club, just as it is clear that at the five township council meetings at which the curling club issues were, discussed, he declared no conflict of interest and did not disclose his interest and he took part in the discussion of the issues, although it is not clear whether or not he voted. ¶ 52 The evidence is fairly meager as to whether the respondent had a pecuniary interest in the curling club issue. In my opinion, he did have a pecuniary interest as a member of the curling club when he attended at the December 2, 1996 township council meeting. Concessions were discussed and accepted in wherein the township was to grant the club a lifetime waiver of taxes, and other services to be provided at the township's expense. While this agreement was never given effect, at the time of this meeting, as a member of the club he had a pecuniary interest in that any financial benefit to the club, at the township's expense, indirectly inured to his benefit as a club member. ¶ 53 Similarly, in my opinion, the respondent had a pecuniary interest when, as member of the club, he attended the October 15, 1996 meeting which led to the passing of by-law 96-11 in that the club was to receive the curling club property for a nominal consideration of $1. Similarly, when council passed the motion to sell the property to the club on April 1, 1998, in my opinion as a member of the club the respondent had a pecuniary interest. While the sale carried with it a provision that the township have a right of first refusal at a cost of $1, in the event that the club chose to keep the property, it was obtaining a property of some unknown value for negligible consideration, and correspondingly, the township was giving up a property of some value. While the responded did not receive anything directly, presumably his dues as a member of the club were affected by the decisions made by township council at meetings at which the respondent attended and participated. ¶ 54 Indeed it is conceded on the respondent's behalf that as a member he had an indirect pecuniary interest in the curling club issue. On his behalf it is argued that his interest was so remote or insignificant that it cannot reasonably be regarded as likely to influence him as a member. It may well be that other members of township council were well aware of his membership in the curling club, but there is no such evidence before me. Township council requested that he arrange a meeting with the curling club executive to discuss issues as between the two groups, but that does not signify township council's awareness of his membership interest in the club. ¶ 55 In my opinion it cannot be said that his interest was so remote or insignificant as to fall within s. 4(k). The financial interests of the township and those of the curling club were, at least to some extent, at odds in that any steps taken to benefit the club were at the expense of the township. In my opinion, when viewed objectively, the respondent breached s. 5 in respect of the curling club issue by failing to disclose his interest, the general nature thereof, and by participating in at least the discussions, if not the vote, in respect of the decisions made. ¶ 56 There remains the question of whether the mandatory and permissive remedies in s. 10(1)(a) and (b) should be applied. This in turn necessitates a consideration of subsection (2). I have the uncontradicted evidence of the respondent that he did not consider himself to be in a conflict of interest situation. While the member's own opinion is not determinative, it is in my view a factor. His years of municipal council experience may well suggest that he ought to have known better, but his history of declaring a conflict, at least in respect of decisions involving his daughter, lends support to the submission that any contravention on his part was unintentional. On the evidence before me, I think it most likely that his conduct was frank and honest, done in good faith, although in my opinion involving erroneous judgment in the sense that it would have been much more prudent to have declared his situation. The respondent's assertion that ratepayers were unhappy about the monies being spent by the township for club repairs gives support to his position that the handling of the curling club issue was beneficial to both parties. I have been provided with no evidence of values. As held in Benn v. Lozinski (supra), the "power of disqualification is one which should only be exercised in a plain case upon very clearly proved facts." While the responsibility of declaring the conflict is that of the respondent, another factor is that apparently no other counsel members raised any concern. The evidence as to the extent of the financial interest is meager, a factor relevant to how apparent the interest would be. In my opinion, a reasonable and fair-minded rate-payer, apprised of all of the circumstances, would be prepared to accept that the respondent's attendance at and participation in the meetings where the issue was discussed amounted to an error in judgment on his part. I am of that view and find that s. 10(2) applies in respect of the curling club issue. ¶ 57 On the "clerk-treasurer issue", I have no trouble accepting the respondent's evidence that he thought it important, as reeve, to have input in the discussion and vote concerning the employment of the senior administrative person employed by the township. While the respondent did not declare a conflict of interest, it is clear on the evidence that the issue of whether or not there was a conflict was before council in that Pearson indicated that she had legal advice that there was a conflict, and the township solicitor had indicated to council his opinion that there was no conflict. While township council had authorized Pearson to obtain another legal opinion, the uncontradicted evidence before me is that the respondent was unaware as to the existence of that opinion at the time he participated in the discussion and vote at the meeting on March 18, 1999, nor was he aware that that opinion had been received. He was, however, aware that another opinion had been requested, and certainly it would have been prudent to make inquiries. By the time of that meeting his daughter had already been hired on a full time basis. While her performance would continue to be subject to review by the clerk-treasurer, she could only make recommendations in respect of the daughter's employment. Final decisions were in the hands of the township council. There is no evidence to justify a concern that the respondent voted as he did in order to in any way punish Pearson, as Pearson indeed had favourably reviewed his daughter. As an employee of the township whose performance was subject to review by Pearson, the daughter had an indirect pecuniary interest in whether Pearson was hired. By operation of the statute, her interest is deemed to be the respondent's. The submission of the applicant is that the respondent would clearly be disqualified from participating in discussions or voting directly in respect of his daughter's employment, and that this was the respondent's method of indirectly dealing with the issue. It is clear, however, that the respondent had declared his conflict and disqualified himself whenever the issue of his daughter's employment was dealt with by council. Accordingly, council was aware of their relationship. His daughter's performance as a township employee would continue to be subject to performance evaluation by the clerk-treasurer, whoever that might be. He relied on the legal opinion of the township solicitor. While it was in his daughter's financial interest to remain employed by the township, and hence was in his deemed financial interests, her continued employment ultimately was in the hands of township council. Clearly the respondent would not be able to participate in discussions or vote at meetings having to do with that employment, and indeed he had demonstrated his awareness of his position of conflict in respect of such decisions. In my opinion, when one looks at all of the circumstances here, the respondent's interests were "so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member" and hence s. 4(k) applies to make s. 5 inapplicable. If wrong in that conclusion, I would apply s. 10(2) in respect of the clerk-treasurer issue. There is his sworn evidence that he did not feel there was a conflict, there is the township's solicitor's legal opinion to the same effect and there is the "buffer" flowing from the fact that any decision of a township clerk in respect of his daughter's employment could only take the form of a recommendation to a council in respect of whose decision the respondent could not participate. In those circumstances, in my opinion, if there was a contravention it was by reason of an error in judgment. ¶ 58 In respect of the "grocery bill issue", there is no evidence before me that the respondent attended at a meeting where a bill owing to his grocery store was discussed, or that he voted in respect of payment of such a bill. The only evidence of his participation is in respect of a motion, on an omnibus basis, to pay accounts owing by the township as monies became available. The evidence of such participation on his part is in respect of meetings taking place after the $36.16 bill had been paid. It may be reasonable to assume that the respondent may well have attended at a meeting which approved that bill, amongst many others, and that he may have voted on it, but I have no evidence in that regard. While it is disconcerting that township council apparently votes in favour of the payment of outstanding accounts without knowing specifically what they are, that is the evidence which is before me. His is the only grocery store in town. It would be preferable if any accounts owing to his grocery store were segregated and dealt with separately by council, with the respondent declaring his conflict and refraining from participating in either the discussion or the vote in respect of payment. ¶ 59 In my opinion, there is no evidence of s. 5 by the respondent in respect of this issue. Regardless, in my opinion, s. 4(k) would apply in that this account was so insignificant in its nature that it cannot reasonably seen as likely to influence the respondent in the discharge of his responsibilities as reeve of the township. If wrong in that, I would again apply s. 10(2) as it appears from the evidence before me that township councilors are not made aware of the particular accounts they are asked to approve for payment. While this procedure, on the evidence, suggests council's vote on the issue to be of no practical importance, nevertheless in the circumstances I am satisfied on the evidence that any participation was inadvertent. Conclusion ¶ 60 For these reasons, an order will go declaring that the respondent contravened the provisions of the Municipal Conflict of Interest Act by failing to declare a conflict and by participating in discussions surrounding the McGarry Curling Club property. The application for a declaration of contravention in respect of the clerk-treasurer issue and the grocery bill issue are dismissed. The application for an order declaring the respondent's seat vacant and declaring him ineligible to serve on council are dismissed. ¶ 61 In respect of costs, council requested the opportunity to address that issue. They may do so by written submissions to be filed within 21 days of the release of this judgment. CLITHERO J. |