A municipal Board of Directors, such as the Cariboo Regional District Board of Directors, has jurisdiction to govern the conduct of its directors and discipline their misconduct. In inquiring into alleged misconduct by and disciplining one of its members for misconduct, the board has a duty to afford procedural fairness to the member in question. Where complaints are made against the member which the board intended to consider in potentially sanctioning the member’s conduct, the member is entitled to proper notice. Proper notice in these circumstances must convey some precision and be capable of appreciation by the recipient such that he or she is aware of what specific alleged misconduct will be considered and sanctions sought by the board. The person has to be given specifics of the complaints that might permit a reasoned and structured response. He or she should be given a reasonable opportunity to consult with counsel, study and respond to the allegations. Where a municipal board acts with a complete disregard for fair process in disciplining one of its members, special costs may be awarded on an application by the member for a judicial review of the board’s decision..

26. May 2009 0

Administrative law – Decisions of administrative tribunals – Municipal councils – Regional Districts – Board of Directors – Discipline of directors – Hearings – Conduct of hearings – Notice – Fairness – Costs – Judicial review – Jurisdiction – Procedural requirements and fairness – Disclosure

Barnett v. Cariboo (Regional District), [2009] B.C.J. No. 713, British Columbia Supreme Court, April 8, 2009, R.A. McKinnon J..

The Petitioner brought proceedings pursuant to the Judicial Review Procedure Act, RSBC 1996, c. 241, and the Local Government Act, RSBC 1996, c. 323, consequent upon what the Petitioner alleged was an unlawful meeting of the Cariboo Regional District Board of Directors (“CRD”) that purported to pass a resolution restricting his ability to interact with regional staff. The Petitioner was an elected member of the CRD. The impugned resolution read as follows:

…that Director Duncan Barnett not have contact or communication with staff, on a person-to-person basis, except through email or written correspondence delivered to the front desk, addressed to the Chief Administrative Officer or designate. Further, that this directive be brought forward for review by the Board in a period of one year.

The Petitioner argued that the CRD had no jurisdiction to pass the resolution, or alternatively, that he was denied reasonable notice and denied basic procedural fairness. He sought an order setting aside the resolution and a further order that the CRD disclose a written report which discussed his alleged misconduct (the “Bell Report”), and was generated without his knowledge and circulated at the meeting as support for the impugned resolution.

The Respondent, CRD, claimed that the Petitioner’s conduct during his years as a director had led to numerous complaints from CRD staff, other directors, and members of the public. The issue of the Petitioner’s conduct was raised at a meeting of the CRD at which the resolution in question was passed. CRD confirmed that the item was not on the agenda for the meeting that was released to the directors prior to the meeting. The purpose of the Bell Report was to address the Petitioner’s behaviour and its alleged negative affect on CRD staff. The Bell Report was circulated at the meeting and each of the members had an opportunity to review it for approximately 10 minutes.

The Petitioner deposed that he had no knowledge that a report concerning his conduct had been prepared and would be discussed at the meeting, or that he would be the primary topic at the meeting. He further deposed that he felt “ambushed” by the Board.

Following the meeting passing the resolution, there were further Board meetings during which the Petitioner attempted to highlight what he believed were procedural errors and sought a copy of the Bell Report as well as the minutes of in-camera meetings in order to provide them to legal counsel. The Board declined the Petitioner’s request and further resolutions were passed reaffirming the impugned resolution. Additionally, when the impugned resolution was reaffirmed, the Petitioner was provided with the Bell Report but only under strict undertakings. The Petitioner did not agree to those undertakings and thus he was not able to view the Bell Report since the original meeting at which the impugned resolution was passed. A copy of the Bell Report was not put before the Court.

In response to the Petitioner’s claim for relief, the CRD argued that the impugned resolution was properly passed with notice to the Petitioner and that even if there were procedural issues in the original meeting, they were rectified in subsequent meetings which, on two occasions, involved reaffirming the impugned resolution.

CRD also submitted that the Court had no jurisdiction to order release of the Bell Report and contended that if the Petitioner wished to receive a copy, he could apply under the Freedom of Information and Protection of Privacy Act, RSBC 1996, c. 165.

The issues before the Court were as follows:

 1. Whether the CRD had jurisdiction to pass the impugned resolution?

2.  Whether the resolution was effective for procedural reasons?

3.  Whether the CRD denied the Petitioner procedural fairness?

4.  Whether the Court could order disclosure of the Bell Report?

Jurisdiction of the CRD Board

The Court accepted CRD’s submission that conduct issues between a director and regional district staff could potentially impede the CRD Board’s mandate to provide good government, and as such, there had to be a process in which such conduct issues can be addressed. A review of the Board’s statutory scheme did not suggest that the jurisdiction to address these issues had been removed from the Board. Rather, a broad and purposeful approach suggested the opposite. Accordingly, the Court did not accept the Petitioner’s submission that the regional district had no jurisdiction to govern the misconduct of its directors. The weight of the statutory and judicial authority suggested that a regional district had the ability to determine its own internal procedures, which included the ability to control misconduct by a director.

Procedural Defects

The Petitioner submitted that the CRD improperly relied on s. 90(1)(d) of the Community Charter which allowed a part of a council meeting to be closed to the public if the subject matter being considered related to or was the security of the property of the municipality. The Petitioner also submitted that by failing to adopt the in-camera meeting agenda and by failing to add the subject of the Bell Report as a late agenda item at the outset of that meeting, CRD failed to comply with its own procedural by-laws. While the Court took issue with the procedure adopted by CRD, in light of the express statutory requirements of the Community Charter, which were not disregarded technically speaking, and because of the deference the Court was required to give to the Board in relation to its own procedural by-laws, those defects alone were not considered sufficient to warrant intervention.

Procedural Fairness

The Petitioner submitted that he was denied procedural fairness at the meeting at which the impugned resolution was initially passed, because the issue of his conduct was raised without his prior notice and without his prior opportunity to investigate and respond to any allegations. The Petitioner also deposed that there was an element of bias in the passing of the resolution in that the Chair and Vice-Chair of the Board initiated the drafting of the Bell Report, had access to the report before the meeting, and both voted in favour of it. He contended that in passing the resolution restricting his ability to communicate directly with regional district staff, the CRD failed to observe both his right to be heard and his right to an impartial hearing.

The Vice-Chair of the CRD, who drafted the Bell Report, deposed that she raised the issue of the Petitioner’s conduct with him at a convention held in Penticton, BC, prior to the meeting, and advised him that the matter of his conduct would be raised at the next Board meeting.

In the Court’s opinion, the Respondent’s claims that these comments constituted proper notice had no support in law. The Court held that proper notice had to convey some precision and be capable of appreciation by the recipient such that he or she is aware that some specific conduct will be discussed and sanctions sought. That person has to be able to come to the meeting fully prepared to answer the charges. The Petitioner in this matter showed up at the meeting without any information at all about the misconduct allegations made against him.

Further, the Court’s sense of the Bell Report, gleaned from the Affidavit of the author, was that no complaining staff was identified and no particular misconduct was spelled out. The report was very vague and seemed to conclude that the Petitioner was not much liked by staff and some of the directors, could be abrasive and difficult to deal with, and that staff preferred not to have contact with him.

Further, the Court observed that following distribution of the Bell Report, mere anecdotal comments regarding the conduct of the Petitioner were exchanged by Board members, and the result was the resolution sanctioning his ability to communicate with staff. All copies of the Bell Report were then collected and the Petitioner was denied his request to retain a copy to permit him to consult with counsel.

The Court held that the fundamental problem with this approach to disciplining the Petitioner was that he was never given any specifics of the complaint that might permit a reasoned and structured response. He was never given any opportunity to consult counsel or study and respond to the vague allegations made against him. Ultimately, the Court found that these events and the CRD’s position in relation to them amounted to a failure to observe the basic elements of fairness. Further, the Court refused to give effect to the CRD’s argument that the resolutions passed in the meetings after the initial resolution rectified any of the procedural fairness issues.

In the result, the Court found that the Petitioner was denied reasonable notice and procedural fairness and directed that the resolution restricting his ability to access staff in the performance of his duties be set aside. This determination rendered moot the claim for a copy of the Bell Report.

The Petitioner sought special costs on the Application. The Court concluded that in the circumstances of this case he was entitled to such an Order. In reaching this decision, the Court considered comments which were made by the Chair of the CRD Board at one of its meetings to the effect that in other circumstances he would deal with the Petitioner by taking him outside and “laying a beating” on him. These comments indicated not only a clear bias against the Petitioner, but also a complete disregard for any fair process. The Chair took the lead in the process to sanction the Petitioner and persuaded others to go along with him without having any regard for fair process and fair hearing. Such conduct was sufficient to warrant chastisement by the Court in the form of special costs.

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