Legal opinion–Use of Public Hearing to block communication

What follows is correspondence with Metro Vancouver Commissioner and CAO Johnny Carline in which he indicates that because of the Public Hearing on the RGS [Note: It was implemented voluntarily by Metro Van], elected officials were not to hear from the public on this matter. But an independent legal opinion (also posted here) says this: Unfortunately many Councillors’ refusal to communicate with constituents individually  after a public hearing, and even before public hearings, is simply a practice of administrative convenience for their own personal benefit. They do not want to be bothered with endless phone calls and so they blame the law, but as the Court of Appeal made clear in Adler and other decisions as well, it is not the law that says that councillors can not speak to you.

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13-Jan-2011, from Jonathan Baker, Municipal Lawyer, Baker & Baker, to Randy Helten, Coordinator, CityHallWatch [Bold text is ours for emphasis.]

Randy,

I refer to our telephone conversation in which you asked me to comment on Mr. Carline’s reasons for withholding your communications from Metro Board Directors.

Mr. Carline is correct that the law is complex. He says that there is no explicit prohibition in the Local Government Act relating to communications between Board members and the public. I say, however, that there is no implicit prohibition either. Courts do not prohibit  councillors from communicating with their constituents after a public hearing. What may happen is that a bylaw may be set aside  if it is challenged by citizens following communications after a hearing but it depends entirely on the circumstances. The Sechelt case involved a second meeting by council between citizens and the councillors. Where there have been private meetings (as opposed to formally constituted meetings of Council) everything depends on the nature of the communication. I do not agree that a meeting between yourself and a board member outside of council urging them to hold a further hearing would invalidate the bylaw.

The case that is on point is Adler International Investments Ltd. v. Central Okanagan (Regional District) a decision of our Court of Appeal in 2003. The Court said:

16        British Columbia courts have commented on previous occasions that it is unrealistic to expect municipal councillors to shut themselves off from new information even at a late stage in the by-law approval process. In Lewis v. Surrey (District) ( 1979), 10 M.P.L.R. 123 (B.C. S.C.), Macfarlane J. said the Legislature could not have intended that after the holding of a public hearing, each councillor is required to remain “incommunicado” with respect to the by-law in question. (at 130.) He continued:

. . .  that is not to say  . . .  that in every case where an individual alderman has received information outside of a council meeting that the whole legislative process must come to a halt, and a new public hearing be held. If that were so, the system would be so cumbersome as to be incapable of producing practical results. In this case, for instance, a new alderman was given information by the petitioner after the public hearing. Did that require that a new public hearing be held? I think not. [at 131]

17        More recently, in Neufeld v. Comox-Stathcona (Regional District), [1992] B.C.J. No. 1413 (B.C. S.C.), Hood J. dealt with a very similar situation to that at issue here. Following one public hearing at which the Ministry of the Environment had been told it was “too late” to report, the local council was told that ‘new information’ had been received which, if considered, would necessitate a second public hearing. That information was the Ministry’s report. The Court held as follows:

While the committee may state, at the end of a public hearing, that no further information or letters will be accepted, I have no doubt that local residents and other persons interested will write to the committee and make further submissions if they believe that to do so will further their cause. While the committee may reject some, or all, of the submissions it does not follow that in the event the committee receives further information or submissions from an interested party, or from any other source, which in its opinion warrants consideration, and creates second thoughts with regard to a previous recommendation, the committee cannot consider the same, provided they act fairly in doing so and, in particular, that a fresh public hearing pursuant to s. 956 is held; and the persons affected by the new information or submissions are given a reasonable opportunity to be heard in opposition to them. [at 13; emphasis added.]

I respectfully adopt these comments.

18        The case at bar in my view represents the converse of Lewis v. Surrey ( District), supra. Here, the “new information” concerned the opposition of a key governmental authority whose objections had to be addressed before the by-law could become law. The ALC’s objections had serious implications not only for the Adler proposal, but for the entire region. The District had no real practical alternative but to consider these objections, and therefore to hold another hearing. Whether it did so after rescinding second and third readings is a matter of form only, but since s. 890(2) of the Act states that a public hearing must occur before third reading, it appears they had little choice in procedural terms. In any event, as stated by the Court in Neufeld, supra:

It is to be remembered that the rule of fairness being focused on is procedural fairness, a rule which is flexible and will vary to some degree with the circumstances, including the function of the particular tribunal  . . .

Unfortunately many Councillors’ refusal to communicate with constituents individually  after a public hearing, and even before public hearings, is simply a practice of administrative convenience for their own personal benefit. They do not want to be bothered with endless phone calls and so they blame the law, but as the Court of Appeal made clear in Adler and other decisions as well, it is not the law that says that councillors can not speak to you.

You have asked whether the bylaw could be challenged on the basis of Metro’s staff refusing to pass your communications on to Board Members?

I doubt it. Although politicians are not prohbited from talking to constituents they are not required to meet either. The penalty for refusing to answer phone calls is at the ballot box.

There is may be one exception. You tell me that Metro is proposing to delegate zoning powers to BC Transit. I have not read the proposal  they would have no power to do this since delegates can’t delegate their powers. If it is true that they have done so  so you could apply to set aside the regulation. I find it hard to believe however that they would try such a thing without seeking the required legislative changes.

As to the other point I would be happy to discuss your options at your convenience.

Jonathan Baker, Municipal Lawyer, Baker & Baker

———- Forwarded message ———-

From: Johnny Carline
Date: Wed, Jan 12, 2011 at 5:09 PM
Subject: RE: Regional Growth Strategy
To: Citizen YVR

Dear Mr Helton:

With regard to your e-mail of yesterday, the relevant section of the legislation to which I refer is Division 4 of the Local Government Act, (sections 890 to 894) on Public Hearings. However, when you look at those sections you will not find a direct explicit prohibition on receiving information after public hearings.

It is the court interpretation of those provisions that is important. Court decisions essentially enlarge upon or provide more detail where the legislation may not be clear.  My statement that “elected officials are not supposed to receive further information….is in legislation” was a compression of what is a fairly complex situation which, as you have expressed interest, I will try to explain.

Section 890 (3) is a good place to start. It states:

“At the public hearing all persons who believe that their interests in property is affected by the proposed by-law must be afforded a reasonable opportunity to be heard or to present written submissions respecting matters contained in the bylaw that is the subject of the public hearing.”

This has led the Courts to say that the process requires procedural fairness. One example of that is a case brought against Pitt Meadows by the Pitt Polder Society  where the courts found that failure to disclose significant documents at or before the public hearing impaired the ability of the public to exercise its rights as provided for in this section. Thus, though it is not written in statute, the interpretation expands the statute to now require the disclosure of the significant relevant documents at or before the public hearing.

This then spills over into what can happen after a public hearing. Obviously there is no way one can absolutely require a councillor (or in our case a director) to be incommunicado on any subject. Constituents will communicate one way or another, as you have done, and it is impractical to think otherwise. Moreover, councils could not address some of the issues raised in public hearings if they did not receive advice from staff. But the principle is that all the significant information on which a council (or Board) is going to make its decision should be available to the public in advance of the public hearing so the public can exercise their rights. This is implied for example in section 894 (2), which deals with what is expected when a council delegates the conduct of a public hearing to an officer etc.  Councillors who were not present for the public hearing cannot vote until and unless they have received a report of the public hearing. The implication is that the information on which they must rely is that submitted at the public hearing.

As an example of the courts enforcing this principle, a zoning by law passed by Sechelt to permit a fish processing plant was set aside by the court because the waste management plan was submitted after the public hearing.

This places local government officials in a bit of a dilemma. As noted, it is practically impossible to expect them to remain incommunicado. But, as they cannot be expected to know what the content of any communication is prior to receiving it, receiving any communication runs the risk of violating the above principles. This might, therefore, risk either disqualifying them from voting or requiring an entirely new public hearing. To avoid this every local government, as far as I am aware, prohibits further input after a public hearing (look on line for the New Westminster policy as an example). It is how they give effect to the courts’ interpretation of procedural fairness as it applies to the above cited sections of the Local Government Act.

As you can see it is quite complex, hence my compressed and perhaps not overly precise language in my first e-mail. I hope this further explanation throws some more light on it and explains why the Board will not be receiving further delegations on this matter.

Again, I thank you for your interest (it is rare for me to have an interested audience on the intricacies of governance legislation) and however the process moves forward, I hope you feel you can contact me further on this kind of issue.

Johnny

From: Citizen YVR
Sent: Tuesday, January 11, 2011 11:35 AM
To: Johnny Carline
Cc: Tricia Bowen

Subject: Re: Regional Growth Strategy

Dear Mr Carline,

Further to our previous correspondence, I would like to be informed exactly which section of which piece of legislation you are referring to.

Secondly, would you kindly inform me whether individuals or delegations may register to speak at the Board meeting on January 14?

Thank you, and best wishes,
Randy Helten

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On Fri, Jan 7, 2011 at 5:48 PM, Johnny Carline  wrote:

Dear Mr Helton:

I am responding to your e-mail to the Metro Vancouver Board of Directors at the request of the Board Chair. She is rightly concerned that after the close of a public hearing elected officials are not supposed to receive further input from the public. This is in legislation and its purpose is clearly to protect the integrity of the public hearing process from ‘lobbying’ outside of the public hearing process.

As Board members will also likely and rightly feel constrained from responding, because of the public hearing rules cited above, I will respond, not on their behalf because their views may not necessarily coincide with mine, but to indicate to you that your correspondence has not been ignored.

Let me first thank you for your input. The Board, my colleagues and I always appreciate citizens being concerned enough to offer comment, even where we may not agree with those comments. So thank you.

Now to substance: your e-mail raises two sets of concerns. The first is that the Board is rushing the process and not enough time has been allotted to hear the public or for the Board to consider the proposed plan. The second is a series of concerns about the implications of the plan itself.

The review of the existing regional growth strategy began in 2002. It reached the point of producing draft strategy papers in 2007 and since then there have been between forty and fifty meetings to which the public has been invited and have attended in large numbers. The process has involved an evolution of the strategy with iterative drafts. The last draft differed from the previous draft largely in terms of the technical aspects of implementation processes as a result of extended work with local municipal planning officials. The major policy initiatives remain largely unchanged. The public input has been exhaustively documented and made available to the Board of Directors. The Board of Directors has been kept abreast of the changes that have occurred and the final draft provides a ‘black line’ guide to the final changes made as a result of the public hearing process. On January 14^th, the Board will have the final draft before them and they have the prerogative to determine whether they are in a position to make a decision or not. My point is that the process has made every attempt to allow the Board members to make an informed decision in a timely manner and it has certainly involved more than four days.

The suggestion that the public needed more time was made to the Board’s Planning Committee and to the Public Hearing by Ms Elizabeth Murphy on more than one occasion. Similarly every one of the concerns raised in your position paper was raised by Ms Murphy at committee before the draft went to public hearing and again at the public hearing on more than one occasion. I am not certain whether Ms Murphy is a member of your group or not, but certainly if the position paper you circulated contains the concerns you wish the Board to consider, I would respectfully suggest that Ms Murphy has more than amply made the Board aware of these concerns through the several presentations she has made to committee and at the public hearing – all of which were documented, along with staff’s response, for the Board’s information and consideration.

I do understand that not all the concerns raised in your paper, and that were made  by Ms Murphy, met with the response from staff that you desired. There is disagreement on a number of these points. But that in itself is not reason to extend the process – otherwise we would reach infinite regress. On January 14^th the test for the Board will be whether they believe they understand the concerns you have raised and whether they understand the responses made by staff to those concerns. The Board will have the opportunity to examine staff on the concerns raised and on staff’s responses to those concerns. At that point I believe they will be in a position to decide whether they can make an informed decision and what that decision is.

I am sure that in other circumstances both the Chair and other directors may have wished to respond to you directly. The public hearing process prevents them from doing so. And, again, I do not assert that their views necessarily coincide with mine. But whenever a member of the public feels engaged enough to offer comment to Metro Vancouver, we all feel that they deserve a response to those comments. So, while you may or may not agree with the response I have provided, I trust you will accept that it is offered in the spirit of civic engagement to which we all subscribe.

Thank you once again for caring enough about this region to be engaged.

Your truly

Johnny Carline

Commissioner and CAO

Metro Vancouver.

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