In a letter-to-the-editor in this issue, Richard Buggeln, a member of Concerned Residents of Porters Lake, Lake Echo, Preston, and Mineville, argues that the role of a city councillor should be “to channel the public sentiment as a moral and ethical commitment to his representative function in the HRM government.”
Given this definition, it is perfectly logical to expect politicians to publicly support or oppose projects that have strong public support or opposition. Buggeln is unhappy with his Councillor David Hendsbee’s claim that Hendsbee “must remain ‘neutral’ regarding his electorate's wishes versus the vendor's proposal [to rezone land in Porters Lake for use as a C&D recycling plant]….”
However, both the Supreme Court of Canada and Council’s attorney have warned councillors that statements of support or opposition that exhibit too much “bias” can be grounds for overturning a council vote.
But how do you determine the difference between statements raising questions about the viability of a project, and statements that exhibit unacceptable “bias”?
For all practical purposes, “bias” is in the eye of the beholder. So there is no way for a councillor to know, when he or she makes a statement about a particular project, whether a court will decide in the future that that statement demonstrated sufficient “bias” to lead the court to overturn the vote of the legislative body in which that councillor participated.
If the courts were to apply such a standard strictly, councillors would be extremely constrained in what they could say. However, the Supreme Court of Canada, in a widely-cited 1990 case, created a rhetorical loophole: what matters is that the councillor make it clear that he or she remains open to being persuaded by information presented during the official process, including public hearings. The correct test is therefore:
“…one which requires that the objectors or supporters be heard by members of Council who are capable of being persuaded. The Legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.” (Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), (1990), S.C.J. No. 137.) [My emphasis—RB]
This court decision is one of several cited by M.E. Donovan, Director, Legal Services for HRM in an October 9, 2007 memo to then-Mayor Kelly and Regional Council in which he specifically warned Councillors about making their positions known if questioned by the media. After reviewing court rulings, Donovan concluded: “Therefore, in [the] future, it is highly recommended that councillors decline any request to respond to a poll on how they intend to vote on an issue involving a public hearing.”
Donovan’s recommendation of simply refusing such requests is a virtually risk-free, small-c conservative way of avoiding any possibility that someone disappointed with a Council decision could sue by alleging “bias.” But a Councillor could still signal his constituents that he is listening to their complaints, that he has really “heard” their concerns, while still staying within Donovan’s “letter of the law” approach. When voters have a grievance, what they need first of all is an assurance that someone is listening. No court will ever overturn a Council vote because a Councillor said, “I hear you.”