Photograph of "Ethics" dictionary entry.

5 Myths of Conflict of Interest for Candidates and Elected Officials

MYTH 1

Local government legislation provides a bright line for conflicts of interest involving elected officials.

Not really. Some conflicts of interest are clear; most are not. Legislation is a starting point to identifying a conflict. However, answering the question requires looking at the statutory and common law, facts, perception of conflict and pecuniary interest (Schlenker v. Torgrimson [Saltspring Island Local Trust Area] 2013 BCCA).

MYTH 2

As an elected official, am I in conflict on issues I ran on as a candidate?

No. Political opponents often allege conflict for a political advantage. Having a political platform and acting to advance those issues is unlikely to constitute a conflict of interest. A political accusation is not a legal conflict of interest.

MYTH 3

My spouse works for a company that provides services to my city. There should be no conflict as that was disclosed during the election.

A conflict may still exist. However, for some municipalities, it may be a hardship to cease such a relationship. A municipal lawyer can advise on how best to mitigate this situation and remove the potential for conflicts, i.e., decision-making, without ceasing the relationship entirely.

MYTH 4

The city’s legal counsel advised that there may be a potential for a conflict of interest, so I must declare one.

Not always. Opinions obtained by the municipal corporation are legal advice for the corporation. Elected officials are strongly advised to obtain their own independent legal advice that directly answers the municipal concern in a confidential manner, and which is protected by solicitor-client privilege. Such an opinion accounts for an elected official’s objectives, public policy goals, risk and ultimately identifies ways in which a conflict may be mitigated.

MYTH 5

As an elected official, I cannot afford to pay for independent legal advice.

Yes, you can. GovLaw provides a cost-effective conflict of interest phone/email advice for elected officials in British Columbia.  Contact us at 1-250-590-1840 or out our website at www.govlaw.ca.

BC Court of Appeal & Supreme Court signage

Provincial Court Municipal Prosecutors: An Alternative to the Provincial Crown

Frustrated with street-level crime not being pursued by Provincial Crown? Tickets having limited effect? Working with GovLaw to conduct an information prosecution may be the solution. These Provincial Court local government prosecutions mandate court appearances by the accused and can result in significant fines and court orders.

A crime reduction strategy using bylaws should be part of every local government’s toolkit. Replacing the Crown with your own municipal prosecutor is part of that solution.

Local governments have reduced crime by applying the proven “Broken Windows” crime reduction strategy. Getting effective compliance orders using information prosecutions instead of the Provincial Court is a key part of that strategy.

The trend towards relieving busy Crown Counsel is clear. Recently, CN Rail won the right to privately prosecute northern BC rail blockade participants.

Why Govlaw?

GovLaw has 20-plus years’ experience managing your prosecutions seamlessly along with the rest of our capable lawyers and support staff. Our team has expanded with an experienced former Crown Prosecutor, Anita B. Szabo, Q.C.

Contact Anita B. Szabo, Q.C. at (250) 590-1840 or office@govlaw.ca today.

Group of college-age partygoers outside a house.

Payback on Prosecutions

It has been a busy summer, but good news for local governments on prosecutions. A special shout-out goes to Judicial Justice Burgess in Kelowna for some very helpful decisions. The Provincial court has provided added value to local governments who are looking for a compliance tool that provides effective results, decent cost recovery and does not require Council or Board approval. That tool is prosecutions by way of long form information (“LFI”).

In June, in the City of Kelowna v. Ackerman, the accused, was an owner of a million-dollar residential property that was being used as an unlawful short-term rental (“STR”). Mr. Ackerman had been operating this STR for over three years without a business license and routinely ignored the $500 bylaw notice tickets that were issued for noise. A $500 ticket was a drop in the bucket against a $5,000 dollar take for a 2-day STR rental! Judicial Justice Burgess saw through this scheme and granted a total fine award to the City in the amount of $18,000 plus a prohibition on the unlawful use.

In July, in the Regional District of Central Okanagan v. Sisett, RDCO received Reasons for Judgment for an MTI conviction on a dangerous dog owner. While Judicial Justice Burgess could only issue the maximum statutorily prescribed penalty of a $1,000 fine, he indicated in his reasons that had the government proceeded with an information prosecution (ie. LFI) he would have awarded an additional $6,030.72 to the victim dog owner as restitution for the payment of her vet bills! This case is currently on appeal, but we are confident RDCO will prevail.

In August, in the City of Nanaimo v. Ahlstrom, a Provincial Court Judge granted a warrant to arrest a repeat offender for local government bylaw breaches. Mr. Ahlstrom ran a rotating one-man campsite and would sometimes burn his sites along the way (and this during a horrible fire season in BC!) The warrant, obtained in advance, required the RCMP to make an arrest. Former criminal defence lawyer (I know, I know. But I saw the good in her – like Darth Vader) Jordan McKay attended as municipal prosecutor by phone to place conditions on Mr. Ahlstrom including red zoning out of the neighborhood. Thus the order burnishes the efficacy and applicability of GovLaw’s Catch and Release program by effectively using a Warrant with an LFI for immediate results!

The above three cases provide important roadmaps for local governments in this post-COVID-age where people are, frankly, more resistant to compliance. The Courts are more willing to drop the hammer with greater fines, restitution for victims and prohibitions for future bylaw breaches if you present a good case.

Troy DeSouza

Issuing Violation Tickets for Price Gouging During COVID-19: What You Need To Know

The Bottom Line

As of April 19, 2020, the Province granted Bylaw Enforcement Officers the authority to issue violation tickets for certain offences related to price gouging and reselling during COVID-19. However, Consumer Protection BC will continue to be the main point of contact, to receive and investigate complaints and reach out to other enforcement authorities if they need assistance in issuing a Provincial violation ticket. Complaints of price gouging or reselling can be directed to Consumer Protection BC.

Authority to Issue Violation Tickets

“But wait a minute…” you say, “Wasn’t issuing fines is the one thing they told us we couldn’t do?” Allow me to explain.

This new and expanded authority for Bylaw Officers comes from an Order In Council which amended the Violation Ticket Administration and Fines Regulation. The newly amended regulation allows anyone who is a bylaw enforcement officer, as defined in the Bylaw Enforcement Officer (COVID-19) Order, MO 82/2020 to issue violation tickets for breaches of sections 8 (4) and (5), and section 9(2) of Ministerial Order 84/2020, and section 3 of Ministerial Order 115/2020.

This new power does not conflict with section 3(2)(b) of MO 82/2020 which prohibits Bylaw Enforcement Officers from issuing fines or administrative penalties under the Public Health Act, as the Ministerial Orders to be enforced by violation ticket were made under the Emergency Program Act.

For more information on Bylaw Enforcement powers under MO 82/2020, see Expanded COVID-19 Role for Bylaw Officers by Troy DeSouza.

Procedure

The Province indicates that Consumer Protection BC is still the main contact point and the public are to submit complaints of price gouging or reselling to them for investigation. Consumer Protection BC has said that it will reach out to various enforcement authorities to assist them with complaints as needed. We encourage you to work cooperatively with Consumer Protection BC where possible to assist them in protecting your local residents.

If you receive information from the public regarding price gouging or reselling, you can direct them to Consumer Protection BC. Complaints can be submitted through Consumer Protection BC’s online form: https://www.consumerprotectionbc.ca/report-price-gouging/.

Article author:

Lisa Guidi is an associate lawyer at GovLaw. Originally from the Okanagan, Lisa has established a strong bylaw enforcement practice. When visiting family, Lisa works out of our Kelowna office.

Important Notice RE: Legal Services During COVID-19

RE: Legal Services During COVID-19

This is to update you on how legal services have been affected or adapted to serve your needs during the COVID-19 pandemic. We continue to monitor the situation closely and follow the latest direction from our health authorities.

Courts

The Honourable Chief Justice Hinkson has suspended regular operations of the Supreme Court of British Columbia at all of its locations. In Provincial Court, all bylaw matters between now and May 4, 2020 have been adjourned.

File Action

Necessary legal file work for local governments continue. From legal opinions to Court action, we are making the most of this time to maintain, catch-up and be proactive to move matters forward.

GovLaw Team Access

Almost all of the GovLaw team is working from home. To ensure no disruptions to our services and prompt response, emails continue to be actioned and our office telephone lines are connected to the corresponding cell phone line of the person you wish to reach.

We are obligated to do our part as a firm to minimize the contagion. Nevertheless, we maintain our confidence to effectively serve the needs of local governments during these challenging times.

Yours truly,

DOMINION GOVLAW LLP

Per:

Troy DeSouza
Direct email: Troy.DeSouza@GovLaw.ca

Read Emergency Program Act, Ministerial Order No. M082 [PDF file]

Expanded COVID-19 Enforcement Role for Bylaw Officers

The Minister of Public Safety and Solicitor General Mike Farnworth announced today that he was enabling municipal bylaw officers to support enforcement of the Provincial Health Officers orders for business closures and gatherings in line with offences under the Public Health Act. The key parts of the order are summarized as follows:

Bylaw enforcement officers specifically designated under the order and regulations include local government corporate officers, BEO’s under section 36 of the Police Act, licensing inspectors, building inspectors, animal control officers or other persons acting in another capacity on behalf of a municipality, regional district or local trust committee for the purpose of enforcement of one or more of its bylaws;

To the greatest extent possible without unduly compromising any other bylaw enforcement objectives of the local authority, each local authority must ensure that the local authorities bylaw enforcement officers provide assistance as may be required to enforce public health orders to include:

  • Monitoring facilities and areas closed to the public;
  • Provide warnings, information and advice to businesses and members of the public with respect to the health orders;
  • Provide health officers with information in respect of potential contraventions; and
  • BEOs are not authorized to detain individuals or issue a fine or penalty.

This announcement acknowledges the expertise and critical role bylaw officers have to play in our communities during this public health emergency. The goal should be to utilize all professional law enforcers to bend the curve on identified cases and deaths with the coronavirus so that communities can get back to normal sooner.

The Minister’s directive requires cooperation and coordination with local governments and our health authorities. GovLaw recommends the following action be taken:

  • Senior staff should enquire and coordinate with their Health Authority counterparts on the enforcement of the Provincial Health Officers directive and the Public Health Act;
  • Primary enforcement should focus on public gatherings and business closures as directed by the Minister; and
  • Evidence can be gathered for health officers and charges prepared to proceed as a “long form information (LFI)” prosecution in Provincial Court. A filed and served LFI can quickly send a message of responsibility and action required by individuals to reduce the coronavirus risk.

For more information, we provide the following links for your benefit.

Ministerial Order No. M082
Official News Release

Take care,

Troy DeSouza

Abandoned house with graffiti

“If You Want Something Done Right, Do It Yourself” – A Plug for Remedial Action

In the local government world, this is not always possible or practical. However, with remedial action requirements, you can get it done yourself. And you can recover the cost of the work!

Every community, no matter how big or small, has one. A problem property. The neighbours complain about it being a nuisance. Building inspectors and bylaw officers have repeatedly raised safety concerns and non-compliance issues with the owners and occupants, but nothing has been done.

Using the remedial action requirement provisions under the Community Charter and the Local Government Act, local governments can require owners, occupiers, or lessees of a property to remedy specific nuisances or hazards. If the person subject to the requirement takes the required action by the deadline, great — problem solved! If not, the local government can go in and do the work themselves.

After the work has been completed, the cost of conducting the work can be recouped from the owner. Both the Community Charter and the Local Government Act allow fees imposed for work done or services provided in relation to land or improvements to be collected via the property tax rolls.

When using remedial action requirements, be careful and diligent. The subject of the requirement must fit within the statutory scheme. Further, one must follow the strict statutory procedural requirements. Notice must be given to all affected parties and the Board or Council must hold a hearing before declaring the subject a nuisance or a hazard and imposing a requirement. Once a requirement has been imposed, the affected parties must be allowed to request a reconsideration hearing.

This procedure is something local governments can do on their own — lawyers are not needed. It’s much more cost-effective than seeking an injunction and will free up bylaw staff and building inspectors to deal with other compliance issues.


Author: Jarrett Plonka, Lawyer at Dominion GovLaw LLP

5 Myths of Bylaw Drafting

Each time a bylaw is created or amended, a local government must be sure it has clear authority to regulate or prohibit over the subject matter. Otherwise, a local government can risk having a part or the whole of a bylaw being declared invalid by a court. Poorly written bylaws may still be supported but defending bylaw mistakes in court can be risky and costly. To minimize this risk, local government staff should plan ahead and ensure that draft bylaws are discussed and reviewed with a lawyer before they are enacted.

MYTH 1

All you need to do is copy and paste from other bylaws.

Bad idea. While copying and pasting is seen by some as a time and cost saver, relying on other local government bylaws without considering Council/Board intentions, your community’s specific needs, and jurisdiction is ill-advised. Moreover, this practice can lead to increased legal costs in fixing mistakes, public embarrassment, and lack of enforceability in courts.

MYTH 2

Double-checking statutory or case law authority can be done later.

Not recommended. Double-checking authority is an ongoing part of bylaw drafting. Each time a bylaw is amended, you must ensure your local government has clear authority to regulate or prohibit over a certain issue (as was a key question in West Kelowna (District) v. Newcombe, 2013 BCSC 1411 for the issue of water lot zoning). Otherwise, you risk having a part or the whole of a bylaw being declared invalid.

MYTH 3

Wording mistakes in bylaws will still be upheld in court.

Possibly, but it may cost you. Every word in a piece of legislation should have a specific purpose and will be interpreted as such.1 While poorly written bylaws may still be supported (as was the case in Okanagan Land Development Corp. v. Vernon (City), 2012 BCCA 332), defending bylaw mistakes in court is risky and costly. Time and effort are better spent at the start crafting a well-drafted bylaw. The earlier you start, the better.

1 Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto, ON: Irwin Law Inc., 2007) at pages 164 to 168.

MYTH 4

Format and layout are less important.

Not really. The way a bylaw is structured is a key part to its readability. If the layout renders the content too confusing to be reasonably understood, a court may find those sections of a bylaw unenforceable. As statutory interpretation expert Ruth Sullivan explains, legislative structure should be “methodical and follow a conventional order or reflect an intelligible plan.”2

MYTH 5

Revisions can be done in a day.

Nice try. Small revisions may seem straightforward, but one revision can easily invalidate another part of a bylaw without careful review. As legislative drafting expert Paul Salembier says, “Good drafting takes time.”3 A team approach is best where staff legislates the intentions of elected officials with input from the public and with assistance of those skilled in legal drafting.

Elena Merritt

2 Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto, ON: Irwin Law Inc., 2007) at page 167.
3 Paul Salembier, Legal and Legislative Drafting (Markham, Ontario: LexisNexis Canada Inc., 2009) at page 479.