After investigating the legality of implementing a succession bylaw to avoid future byelections to fill council vacancies, the town clerk has found doing so may not be legal.
In a report to the Administration and Finance executive committee yesterday, Glenn Treftlin recommended “council not adopt any policy that would limit its options available to it in filling council vacancies.”
Treftlin noted he has been in contact with both town solicitor Wes Derksen and a solicitor for the City of Brantford, who also had been directed to look into a possible succession bylaw for that city.
Treftlin was informed that under the Municipal Act, 2001, Sec. 263, options for filing a vacant seat on council include:
•by appointment of a person who has consented to accept the office if appointed; or
•through a byelection to be held in accordance with the Municipal Elections Act, 1996.
“The options provided in the Municipal Act, 2001, are not limited, for example, by wording in the act to the effect that they are subject to any prevailing council policy,” Treftlin noted in his report.
“The options set out in the act are always available to a council unless, as in subsection 263 (3), filling the vacancy is the subject of an order of a judicial proceeding requiring a byelection.
“In general terms, a decision of one council in matters such as this does not bind a subsequent council, nor would it preclude the current council from changing its policy from time to time as it might decide to do,” he added.
Treftlin later noted the Municipal Act, 2001 provides council “a broad direction with good reasons, among which is the ability to permit council to take into account all circumstances surrounding and impacting the decision at hand rather than being required to do something which may, perhaps inappropriately on a given set of circumstances, limit or prohibit that ability or option.”
“It is possible that a policy of council that appears to limit a broad power bestowed on council under law, in the absence of specific authority to do so, could find itself challenged in a court of law,” Treftlin warned.
“This would be especially true if one or more individuals felt strongly enough that the policy infringed on their personal or other rights.
“From a legal point of view, why enter what may potentially be a legal minefield?”
Treftlin noted his contact with the two solicitors has not cost the town any money, and was more a matter of him getting “some oral informal and quick observations from their legal perspective and experience.”
“Both solicitors questioned, from a legal point of view, why council would adopt a policy that would restrict them from utilizing, or being able to exercise, their full statutory powers provided under law,” he added.
Treftlin’s recommendation will be on the committee of the whole agenda preceding Monday evening’s council meeting. At that time, it will be up to the councilllors to either accept it as is or give further direction.
Back in late January, council directed that the matter of a succession bylaw be investigated after several members of the public requested they do so.
These requests were spurred on by the byelection, won by Ken Perry, to fill the vacancy left by former councillor Tannis Drysdale.
Fort Frances Times
Local News from Across the Rainy River District
