SOUND OFF: Much ado about – what?

In the course of the brief open Council meeting on Dec. 8, the Mayor asked CAO David Trawin if his request for a special closed meeting that day was initiated by City staff or by a member of Council. Mr. Trawin responded by saying “I received some correspondence from an outside party which potentially put the City, in my opinion, at a potential legal risk… it was potentially more than a conflict of interest.”

City lawyer Denise McCabe interjected and addressed the Mayor personally, stating “Whatever interest the City has may be adverse to your personal legal interests”. This entirely unsupported assertion seemingly justified Council’s decision to exclude the Mayor from the closed meeting, and it proceeded as planned.

I now understand that it was my letter dated Nov. 30, 2022, that I addressed to legal counsel for the ASK Wellness Society (not Mr. Trawin), that caused much of the angst and turmoil that has swirled around the Mayor and Council in recent weeks. I am apparently the “outside party” who is responsible for the ominous correspondence that has plunged the City of Kamloops into serious legal jeopardy, in the opinion of its CAO and lawyer. More on that below. I am, in any event, writing to take responsibility for this letter and, hopefully, to lend some clarity to the issue.

My letter dated Nov. 30, 2022, was written with two purposes in mind. Firstly, it was intended to challenge ASK Wellness for having falsely accused the Mayor of defaming ASK Wellness and/or Mr. Hughes; for having broadcast their accusations and threat of a potential lawsuit throughout City Hall via e-mail; and for failing to offer either evidence of any such “defamation” or a retraction of this false allegation. Mr. Hughes later stated publicly that his lawyer had advised that the Mayor’s rhetoric during the election campaign had perhaps “teetered” on the brink of defamation, and that the decision to send the letter was his staffs fault.

It was sent nonetheless, and remained un-retracted. Lawyer Huyghebaert has not answered – at all.

The second purpose of this letter was to respond to Mr. Huyghebaert’s effort to promote his client as being an ideal participant in a “solution-finding task force” in relation to the complex issues of homelessness, mental illness and addiction- provided that the said task force avoided any form of “fault-finding”. I responded to this by saying, in part:

.”… I expect that the Mayor, in consultation with City Council, will appoint competent and objective members to the task force to address all aspects of its mandate, without influence from any parties with special interests…”

The term “taskforce” is used colloquially to refer to the standing committees, select committees and commissions that are governed by the Community Charter. The term “task force” has no legal significance.

While the Mayor has the absolute authority to appoint members to standing committees, it is council as a whole that establishes select (i.e. single-purpose) committees. For example, if the Mayor wanted to establish a select committee to conduct or direct a third-party review of existing supportive housing and/or shelter facilities in the City, he could only do so in consultation with City Council. Council would determine the terms of reference for the select committee, and would also decide on its composition.

Mr. Huyghebaert suggested that its members should be knowledgeable and experienced. I suggested that they should be competent and objective, and not subject to the influence of any special interests. I expressed my personal expectation that appropriate members would be selected, following consultation among Mayor and Council. I see no basis for the suggestion that this exchange of views raised legal risks or exposure giving rise to potential lawsuits against the City. I consider that suggestion to be absurd, and completely unsupported in law.

Perhaps Mr. Huyghebaert and I differed on the question as to whether Mr. Hughes would be an appropriate member of such a select committee. While there is not the slightest doubt that Mr. Hughes is knowledgeable and experienced, it would be an unusual decision of Council to appoint the CEO of ASK Wellness to a select committee charged with the specific duty of investigating facilities such as those that ASK Wellness operates. I expressly invited ASK’s contribution to the review process. In my view, the suggestion that, by doing so, I (or the Mayor) exposed the City to legal liability, is patently absurd.

In its statement released on Dec. 9, 2022, City Council announced that it “will not be discussing the potential lawsuits or legal issues, nor the conduct that led to them”. That is not surprising, given that there are no such lawsuits, nor any legal issues affecting the City that could conceivably arise from my Nov. 30 letter to ASK Wellness.

The admonition of Council, to the effect that no member of Council is permitted to speak publicly, or on behalf of Council, on matters that are within Council’s exclusive authority, is particularly odious in this instance. Firstly, neither I nor the Mayor purported to speak on behalf of Council in respect of any matter in issue with ASK Wellness, although other members of Council have done so without hesitation.

Secondly, any effort to construe this letter as an abuse of process or as any sort of threat that would expose the City to legal action is, in my view, disingenuous and groundless.

Thirdly, the exclusion of the Mayor from closed Council meetings on the pretext that he has personal legal interests that are adverse to those of the City is long on innuendo but short on truth. No competing legal interests have been cited, and the Mayor is unaware of any. In its public statement, the City paid lip service to the value of transparency, but has refused to subject its dubious legal claims to any form of scrutiny or objective review, either by the public or by the Mayor himself.

The Dec. 6, 2022, closed meeting of Council, to the extent that it was arranged in secret for the purpose of receiving an extensive legal opinion, was unlawfully convened. The City’s CAO has asserted that the Community Charter provides him with the authority to “add on” an undisclosed agenda item to an otherwise lawful closed meeting. That is, very simply, incorrect.

Councillor Sarai has offered a different explanation, suggesting that s. 4.5(b) of the City’s Council Procedure Bylaw permits council to circumvent the clear language of s. 92 of the Community Charter. He is wrong. The Community Charter explicitly states that any municipal bylaw that is inconsistent with the Charter is of no legal effect. The Bylaw does not, and cannot, permit Council to proceed unlawfully.

Most of the members of the new Kamloops City Council (including the Mayor) are on a steep learning curve, and they will all do better with time. They need to deal with one another openly, with candour and transparency. They need to learn to think independently, as opposed to relying on legal opinions and letters drafted for them, in secret and cloaked under privilege and confidentiality.

The Supreme Court of Canada has upheld the right of elected officials to speak out on matters of public interest, within well-defined limits, which is what they were all elected to do. The spectre of undefined legal jeopardy and non-existent lawsuits is divisive, unproductive and, in this instance, much ado about nothing.

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The author of this opinion piece, David McMillan, is the personal lawyer of Reid Hamer-Jackson at the time of its publication.

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Editor’s Note: This opinion piece reflects the views of its author, and does not necessarily represent the views of CFJC Today or Pattison Media.

by David McMillan

SOUND OFF: Much ado about – what?

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