Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.

Heather Salter B.E.S., LL.B., M.P.A.
Director of Legal and Clerks Services/City Solicitor
Email: hsalter@stcatharines.ca
Tel: 905.688.5601 x1528TTY:905.688.4TTY (4889)
Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2

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Great question – I am working on our code of conduct and would love to know what you find out.

In Nova Scotia, other than for election offenses,  Councillors can be removed from Office for missing three meetings in a row without permission or for a breach of the Municipal Conflict of Interest Act.  Municipal Conflict of Interest Act (nslegislature.ca)https://nslegislature.ca/sites/default/files/legc/statutes/municipal%20conflict%20of%20interest.pdf .  While there are a lot of exemptions, a Councillor who fails to excuse themselves from a matter while in a conflict will breach the Act.

Forfeiture of office and disqualification

10 (1) Where the judge determines that a member has contravened this Act, the judge shall declare the seat of the member vacant and direct that the vacancy be filled in the manner prescribed by law, but if the judge determines that the contravention was committed as a result of inadvertence or a bona fide error in judgment the judge may relieve against such forfeiture of office.
(2) The member found to have contravened this Act shall not be qualified to fill the vacancy so created. (3) Where the judge determines that a member has contravened this Act, the judge may (a) disqualify the member from being a member of the council or local board, or any council or local board, for a period of not more than ten years; and (b) where the contravention has resulted in personal financial gain, require the member to make restitution.
(4) Where the contravention has been made for the purpose of personal financial gain, the judge shall impose a penalty of not more than twenty five thousand dollars or, in default of payment thereof, imprisonment for a term of not more than twelve months. R.S., c. 299, s. 10.

From: Canadianmunicipal canadianmunicipal-bounces@lists.imla.org On Behalf Of Salter, Heather
Sent: January 25, 2021 2:50 PM
To: 'canadianmunicipal@lists.imla.org' canadianmunicipal@lists.imla.org
Subject: [External Email] [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.
Heather​

Salter

B.E.S., LL.B., M.P.A.
Director of Legal and Clerks Services/City Solicitor
Email:
hsalter@stcatharines.camailto:hsalter@stcatharines.ca
Tel: 905.688.5601 x1528tel:905.688.5601%20x1528
TTY:905.688.4TTY (4889)
Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2
[City of St. Catharines website]https://www.stcatharines.ca/en/
[Citizens First Customer Service Team]https://www.stcatharines.ca/en/Contacts.asp
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Hi,

Under New Brunswick’s Local Governance Act:

50(1)A vacancy results in a council when
(a) fewer candidates than are required for office are nominated,
(b) a member resigns from office,
(c) a member dies while in office,
(d) a member is convicted of
(i) an offence punishable by imprisonment for five or more years, or
(ii) an offence under section 122, 123, 124 or 125 of the Criminal Code (Canada),
(e) a member fails to comply with subsection 58(9) [taking a seat on council prior to following the legislated process for accepting office],
(f) a member ceases to be a resident of the local government,
(g) except in the case of illness or with the authorization of the council, a member is
(i) absent from the local government for more than two months at one time, or
(ii) absent from four or more consecutive regular meetings of the council, or
(h) a member has been disqualified from or declared incapable of holding office under this or any other Act.

Similarly to Nova Scotia, a member can also be removed by court order in relation to a conflict of interest breach:

97(3) In addition to or instead of any sentence that may be imposed in accordance with the Provincial Offences Procedure Act, a judge of the Provincial Court may make one or more of the following orders:
(a) an order requiring the person to resign his or her office or position on the terms and conditions imposed by the judge,
(b) an order prohibiting the person from holding that office or position or any other specified office or position during the period of time that the judge prescribes,
(c) if the violation or failure to comply has resulted in financial gain to the person or a family associate, an order requiring the return of any gain realized in accordance with terms and conditions imposed by the judge, and
(d) any other order that the judge considers appropriate in the circumstances.

The Act requires local governments to have a Code of Conduct By-law, but it provide no guidance whatsoever on what types of sanctions may be imposed for a violation. Based on a bit of quick research I did and the provisions of our legislation, I’ve taken the position that an elected official in NB cannot be removed from office for a code of conduct violation.

Hope this helps,
Nick

Nick Robichaud
General Manager / Directeur général
Direct | 506.853.3565
nick.robichaud@moncton.camailto:nick.robichaud@moncton.ca
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From: Canadianmunicipal canadianmunicipal-bounces@lists.imla.org On Behalf Of Traves, John
Sent: Monday, January 25, 2021 3:23 PM
To: Salter, Heather hsalter@stcatharines.ca; 'canadianmunicipal@lists.imla.org' canadianmunicipal@lists.imla.org
Subject: Re: [Candianmunicipal] Removing members of Council for Code of Conduct violations

Great question – I am working on our code of conduct and would love to know what you find out.

In Nova Scotia, other than for election offenses,  Councillors can be removed from Office for missing three meetings in a row without permission or for a breach of the Municipal Conflict of Interest Act.  Municipal Conflict of Interest Act (nslegislature.ca)https://nslegislature.ca/sites/default/files/legc/statutes/municipal%20conflict%20of%20interest.pdf .  While there are a lot of exemptions, a Councillor who fails to excuse themselves from a matter while in a conflict will breach the Act.

Forfeiture of office and disqualification

10 (1) Where the judge determines that a member has contravened this Act, the judge shall declare the seat of the member vacant and direct that the vacancy be filled in the manner prescribed by law, but if the judge determines that the contravention was committed as a result of inadvertence or a bona fide error in judgment the judge may relieve against such forfeiture of office.
(2) The member found to have contravened this Act shall not be qualified to fill the vacancy so created. (3) Where the judge determines that a member has contravened this Act, the judge may (a) disqualify the member from being a member of the council or local board, or any council or local board, for a period of not more than ten years; and (b) where the contravention has resulted in personal financial gain, require the member to make restitution.
(4) Where the contravention has been made for the purpose of personal financial gain, the judge shall impose a penalty of not more than twenty five thousand dollars or, in default of payment thereof, imprisonment for a term of not more than twelve months. R.S., c. 299, s. 10.

From: Canadianmunicipal <canadianmunicipal-bounces@lists.imla.orgmailto:canadianmunicipal-bounces@lists.imla.org> On Behalf Of Salter, Heather
Sent: January 25, 2021 2:50 PM
To: 'canadianmunicipal@lists.imla.org' <canadianmunicipal@lists.imla.orgmailto:canadianmunicipal@lists.imla.org>
Subject: [External Email] [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.
Heather​

Salter

B.E.S., LL.B., M.P.A.
Director of Legal and Clerks Services/City Solicitor
Email:
hsalter@stcatharines.camailto:hsalter@stcatharines.ca
Tel: 905.688.5601 x1528tel:905.688.5601%20x1528
TTY:905.688.4TTY (4889)
Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2
[City of St. Catharines website]https://www.stcatharines.ca/en/
[Citizens First Customer Service Team]https://www.stcatharines.ca/en/Contacts.asp
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Hi Heather,

British Columbia does not have provincial legislation requiring municipalities to have a Code of Conduct let alone the authority to remove a Councillor for breach of any Code of Conduct that a municipality might voluntarily put into place.

Similarly, there is no legislation in British Columbia that provides for the removal of a Councillor from office on the basis they have committed a criminal offence.

The Vancouver Charter, S.B.C. 1953, c. 55, does contain provisions which disqualify a Councillor from holding office for such matters as unexcused absence from council meetings and breach of certain conflicts of interest provisions.

Jason

Jason S. Twa | Assistant Director, Civil Litigation
Barrister & Solicitor
CITY OF VANCOUVER | Legal Services
575 W 8th Avenue | Vancouver, BC V5Z 0C4
Tel: 604.871.6548| Jason.twa@vancouver.camailto:Jason.twa@vancouver.ca

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From: Canadianmunicipal [mailto:canadianmunicipal-bounces@lists.imla.org] On Behalf Of Salter, Heather
Sent: Monday, January 25, 2021 10:50 AM
To: 'canadianmunicipal@lists.imla.org'
Subject: [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.
Heather​

Salter

B.E.S., LL.B., M.P.A.

Director of Legal and Clerks Services/City Solicitor

Email:

hsalter@stcatharines.camailto:hsalter@stcatharines.ca

Tel: 905.688.5601 x1528tel:905.688.5601%20x1528

TTY:905.688.4TTY (4889)

Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2

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Hi Heather,

I concur with Jason. Council members can be sanctioned and censured (flowing from common law, not legislation), but not removed (except as is more or less set out below).

See Part 4, Division 6 – Conflict of Interest (sections 100-109)https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03026_04#division_d2e9171 of the Community Charter, SBC 2003 c.26 (which applies to municipalities other than the City of Vancouver).

See also Division 7 for how a member of council’s qualification for office can be challengedhttps://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03026_04#division_d2e10008. Basically either the municipality or 10 or more electors of the municipality must bring an application to court within 45 days of the alleged basis of the disqualification to seek disqualification of an elected official. See section 111 of the Community Charterhttps://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03026_04#section111 for that process.

Sections 204 and 205 of the Local Government Acthttps://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03026_04#section111, RSBC 2015, c.1 (which applies to Regional Districts) incorporates the Division 6 and 7 of Part 4 of the Community Charter by reference and therefore applies to disqualifying Board members.

Regards,
Andrew

Andrew Carricato
Lawyer
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From: Canadianmunicipal canadianmunicipal-bounces@lists.imla.org On Behalf Of Twa, Jason
Sent: January 25, 2021 12:41 PM
To: Salter, Heather hsalter@stcatharines.ca; 'canadianmunicipal@lists.imla.org' canadianmunicipal@lists.imla.org
Subject: Re: [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi Heather,

British Columbia does not have provincial legislation requiring municipalities to have a Code of Conduct let alone the authority to remove a Councillor for breach of any Code of Conduct that a municipality might voluntarily put into place.

Similarly, there is no legislation in British Columbia that provides for the removal of a Councillor from office on the basis they have committed a criminal offence.

The Vancouver Charter, S.B.C. 1953, c. 55, does contain provisions which disqualify a Councillor from holding office for such matters as unexcused absence from council meetings and breach of certain conflicts of interest provisions.

Jason

Jason S. Twa | Assistant Director, Civil Litigation
Barrister & Solicitor
CITY OF VANCOUVER | Legal Services
575 W 8th Avenue | Vancouver, BC V5Z 0C4
Tel: 604.871.6548| Jason.twa@vancouver.camailto:Jason.twa@vancouver.ca

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From: Canadianmunicipal [mailto:canadianmunicipal-bounces@lists.imla.org] On Behalf Of Salter, Heather
Sent: Monday, January 25, 2021 10:50 AM
To: 'canadianmunicipal@lists.imla.org'
Subject: [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.
Heather​

Salter

B.E.S., LL.B., M.P.A.

Director of Legal and Clerks Services/City Solicitor

Email:

hsalter@stcatharines.camailto:hsalter@stcatharines.ca

Tel: 905.688.5601 x1528tel:905.688.5601%20x1528

TTY:905.688.4TTY (4889)

Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2

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Hi Heather,

In Alberta, every council must, by bylaw, establish a code of conduct governing the conduct of councillors; however, a councillor must not be disqualified or removed from office for a breach of the code (Municipal Government Act, s 146.1).

A councillor is, however, disqualified from council and must immediately resign if the councillor

·        was not eligible at the time of nomination or is no longer eligible for nomination as a candidate under the Local Authorities Election Act,

·        the councillor fails to file a campaign finance disclosure statement as required under the Local Authorities Election Act,

·        becomes a judge of a court, or a member of the Senate, House of Commons or Legislative Assembly of Alberta

·        is absent from all regular council meetings during a period of 8 consecutive weeks, without council authorization

·        is convicted of an offence punishable by imprisonment for 5 or more years or an offence under section 123, 124, or 125 of the Criminal Code

·        fails to vote on a matter at a council meeting at which the councillor is present, unless the councillor is required or permitted to abstain,

·        participates and votes on a matter in which the councillor has a pecuniary interest

·        has a pecuniary interest in an agreement that is not binding on the municipality under s 173

·        uses information obtained through being on council to gain a pecuniary benefit

·        becomes an employee of the municipality

·        is liable to the municipality for an unauthorized expenditure (Municipal Government Act, s 174)

If a councillor refuses to immediately resign then either the council or an elector may apply to a judge of the Court of Queen’s Bench to have the person declared to be disqualified from council, although the judge has discretion to allow the person to remain a councillor (ss 175-179) and the case law in Alberta has shown how reluctant our courts are to remove an elected official from office.

Municipal Government Act:
https://www.qp.alberta.ca/documents/Acts/m26.pdf

Regards,

Michael

[cid:SignatureLogo2_e25e7260-c18a-4faa-b3b6-f7a7e6a042f1.jpg]  [cid:d68e92bb-0e4c-48fd-8606-94fc365a9910.jpg]  Michael S. Solowanhttp://brownleelaw.com/michael-solowan/ | Partner | Brownlee LLP
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From: Canadianmunicipal [mailto:canadianmunicipal-bounces@lists.imla.org] On Behalf Of Salter, Heather
Sent: Monday, January 25, 2021 11:50 AM
To: 'canadianmunicipal@lists.imla.org'
Subject: [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.
Heather​

Salter

B.E.S., LL.B., M.P.A.

Director of Legal and Clerks Services/City Solicitor

Email:

hsalter@stcatharines.camailto:hsalter@stcatharines.ca

Tel: 905.688.5601 x1528tel:905.688.5601%20x1528

TTY:905.688.4TTY (4889)

Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2

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​City of St. Catharines Confidentiality Notice

​The information contained in this communication, including any attachments, may be confidential, is intended only for the use of the recipient(s) named above and may be legally privileged. If the reader of this message is not the intended recipient, you are hereby notified that any use, dissemination, distribution, disclosure or copying of this communication or any of its contents, is strictly prohibited. If you have received this communication in error, please re-send this communication to the sender and permanently delete the original and any copy of it from your computer system.

Hi,

Under Saskatchewan’s legislation for cities, section 120 of The Cities Act sets out those circumstances when a member of council may be disqualified from council. I have highlighted what some of the legislative references are referring to just so that you don’t have to look these up. A member cannot be disqualified for violating a council code of conduct. Section 120 provides as follows:

Reasons for disqualification
120(1) A member of council is disqualified from council if the member:
(a)        when nominated, was not eligible for nomination or election as a candidate pursuant to The Local Government Election Act, 2015;
(b)        ceases to be eligible for nomination or election or to hold office pursuant to The Local Government Election Act, 2015 or any other Act;
(c)          is absent from all regular council meetings held during any period of 3 consecutive months during which at least 2 meetings of the council have been held, starting with the date that the first meeting is missed, unless the absence is authorized by:
(i)          a resolution of council; or
(ii)          a leave of absence policy adopted by council;
(d)        is convicted while in office:
(i)          of an offence punishable by imprisonment for five years or more; or
(ii)          of an offence pursuant to section 123, 124 or 125 of the Criminal Code (this refers to municipal corruption offences, selling of purchasing an appointment or resignation from an office and influencing or negotiating appointments or dealings in offices);
(e)          contravenes:
(i)          a bylaw passed pursuant to section 34 of The Local Government Election Act, 2015 – (this refers to an elections campaign contributions/expenses disclosure and election spending limits bylaw);
(ii)          section 116 or 117 of this Act (this refers to the conflict of interest sections in The Cities Act);
(iii)        subsection 87.1(2) (this refers to the whistleblower protection provisions of The Cities Act); or
(iv)        subsection 162(5) (this refers to unauthorized expenditures and unauthorized borrowing under The Cities Act);
(f)          ceases to reside in the city;
(g)          is determined to have made a false statement or declaration in the nomination paper filed in accordance with The Local Government Election Act, 2015; or
(h)        is removed from office by the minister or by the Lieutenant Governor in Council pursuant to section 356 or 358.1, as the case may be, unless the order directs that the person is not disqualified.

Where a member is disqualified, they are required to resign immediately (see section 121(1) of The Cities Act). However, if they do not resign immediately the council may by resolution declare the person’s office vacant or the council or a voter may apply to a judge for an order declaring their seat vacant.  This is set out in subsection 121(2) as follows:

Enforcement of disqualification
121(1) A member of council who is disqualified must resign immediately.
(2) If a member of council who is disqualified does not resign as required by subsection (1):
(a)        the council may, by resolution, declare the person’s office vacant; or
(b)        the council or a voter may apply to a judge of the court in the prescribed manner for:
(i)          an order determining whether the person was never qualified to be or has ceased to be qualified to remain a member of council; or
(ii)          an order declaring the person to be disqualified from council.

Where a council has declared the seat vacant, the affected council member may apply to court to appeal that decision (see section 121(2.1) of The Cities Act).  This ability for a council to remove one of its own members is a new provision to The Cities Act that was just passed last year although a similar provision has been in The Northern Municipalities Act for a number of years.  There are equivalent provisions as listed above in The Municipalities Act (see sections 147 and 148) and The Northern Municipalities Act (see sections 165 and 166) which also apply to the types of municipalities in Saskatchewan covered under those acts.

In terms of the requirement to have a code of conduct that applies to council members, the legislation does require this but refers to it as a “code of ethics” in the legislation. Section 66.1 of The Cities Act requires that a council have a code of ethics and a process for dealing with contraventions of the code of ethics. The Act does not provide the power to disqualify members for a violation and provides little guidance on what remedies or sanctions can be imposed on a member who is in violation.  Clause 66.1(6)(a) of The Cities Act simply states that a code of ethics may include, subject to the regulations, rules regarding the censure or suspension of a member of council who has contravened the code of ethics.  There are also equivalent clauses in The Municipalities Act (see section 93.1) and The Northern Municipalities Act (see sections 107.1).

Jana Marie Odling
Legal Counsel
Office of the City Solicitor
P: 306.777.7475
F: 306.777.6818
E:jodling@regina.camailto:jodling@regina.ca
Regina.cahttps://can01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.regina.ca%2F&data=02%7C01%7CJODLING%40regina.ca%7Cb790f9c3f1b242f9c16708d7cd125db3%7C87ab27073fb24d81a3d71b38f0b23e8b%7C0%7C0%7C637203351076985053&sdata=R4kxXAbzwIinfum5qXCaHCgTXxwW%2BQQ7LdaDQGGgFlY%3D&reserved=0

[cid:image001.png@01D6F337.FA8661B0]

From: Canadianmunicipal canadianmunicipal-bounces@lists.imla.org On Behalf Of Salter, Heather
Sent: Monday, January 25, 2021 12:50 PM
To: 'canadianmunicipal@lists.imla.org' canadianmunicipal@lists.imla.org
Subject: [External email] [Candianmunicipal] Removing members of Council for Code of Conduct violations

Hi all,

I have been asked by my Council to research potential changes to the Ontario Municipal Act to remove members of Council in the event of a “serious” Code of Conduct violation.  As you know this comes up everywhere from time to time when our elected officials behave badly.

I am confident in my knowledge of the situation in Ontario, but I am curious if any other Province has anything in their legislation to provide a process for this?  Or perhaps for criminal conduct (other than election related offences).

Thank you for any responses.

H.
Heather​

Salter

B.E.S., LL.B., M.P.A.
Director of Legal and Clerks Services/City Solicitor
Email:
hsalter@stcatharines.camailto:hsalter@stcatharines.ca
Tel: 905.688.5601 x1528tel:905.688.5601%20x1528
TTY:905.688.4TTY (4889)
Mail: PO Box 3012, 50 Church Street, St. Catharines, ON L2R 7C2
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