Town council won’t be creating a policy stating future council vacancies have to be filled by succession, not a byelection.
On Monday evening, council voted in favour of a recommendation from the Administration and Finance executive committee stating “council not adopt any policy that would limit its options available to it in filling council vacancies.”
This decision was based on a report Fort Frances Clerk Glenn Treftlin submitted to the executive committee last Wednesday.
Treftlin had investigated the legality of implementing a succession bylaw to avoid future byelections to fill council vacancies—and found doing so may not be legal under the Municipal Act.
“Every time a vacancy comes up on council, it’s a different circumstance, and you can’t compare it any other,” noted Coun. Paul Ryan. “The Municipal Act of Ontario is quite clear and gives very good direction on your options at that point in time.
“I can’t sit here and say that I would ever be in favour of a bylaw or resolution, or anything else, that would try to direct a future council down the road on an event that may or may never happen,” he added.
“I can’t support that at all. I’ll go by the Municipal Act.”
“The council of the day has to take into account the circumstances of the day and determine how they will deal with succession,” echoed Coun. Andrew Hallikas.
“The safest and most reliable thing for us to do is follow the Municipal Act,” said Coun. Sharon Tibbs, adding it is possible the province may revise it in the future now that four-year terms have come into play.
Coun. John Albanese said he supported the recommendation, as did Coun. Rick Wiedenhoeft.
While Coun. Wiedenhoeft had said after the passing of Coun Struchan Gilson that he would like see a succession policy in place, he has never wanted to “tie the hands of council” and limit what future councils could do.
His resolution, which he does not plan to bring forward to council, would be to provide guidelines as to when certain options would be preferable. For example, appointment would be a preferred option when there is less than 75 percent of a councillor’s term left.
Council approved the Administration and Finance executive committee’s recommendation by a vote of 6-1, with only Coun. Ken Perry voting against it.
While Mayor Roy Avis did inform council that certain individuals had requested council hold off on voting on the recommendation until April 14 (giving them time to speak on Treftlin’s findings), council ended up voting on it after all Monday night.
“I’d like to get this resolution off the table tonight. We just have too much stuff going on here,” said Coun. Ryan.
“I don’t see any sense in delaying it,” agreed Coun. Hallikas.
As reported in last Thursday’s Daily Bulletin, Treftlin noted he had 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 said 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 remarked.
Treftlin said 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.
Back in late January, council had 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 that month, won by Coun. Perry, to fill the vacancy left by former councillor Tannis Drysdale.
Fort Frances Times
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