BETWEEN
JOHN ALLAN, PENNY LYNNE ALLAN, JANICE LORRAINE BRADDELL,
JOHN FULLERTON, JULIE FULLERTON, GRIT HIGH, ALEXANDER
GRANT SCHIERMAN, NORA ELIZABETH SCHIERMAN, GARY DAVID
SAWATSKY and LINDA ELIZABETH TEMPLE
PETITIONERS
AND:
STANLEY JACK FROESE, BLAIR GARNET WHITMARSH, ROBERT LONG and ANGELA DAWN QUAALE
RESPONDENTS
WRITTEN SUBMISSIONS OF THE PETITIONERS
langleywatchdog.com (lwd.com) Preamble:
I was contacted by CTV News in late October of 2019 regarding a CTV Investigative Research item into potential serious and illegal campaign donations received by three members of the existing Township of Langley Council plus one member that was not elected in the 2018 Municipal election. I went on air that day, as requested by CTV from a remote location for broadcast that evening. That afternoon I received a package of information that was the source of information for CTV, which I reviewed very thoroughly, found it very newsworthy and published it in this BLOG – The Link to that post follows:
I must add that in typical Langley Advance Times / Mathew Claxton fashion, their report of this serious issue is lame, pathetic but if nothing else consistent. It does not mention the fact that it was CTV’s investigative work and broadcast of the anonymous material THEY received that was the source of their investigation. I received the same package of information later that day which I made public. Mathew phoned me and asked for my source, which I denied. For the record, ALL the information I receive on any topic is guaranteed to be kept in confidence.
For your information the Langley Advance Times are paid a sum in excess of $150,000 per year by the Township of Langley for their advertising requirements, in typical fashion they are very careful as to what they provide in print; don’t upset the client! (Their two news stories are dated December 17th, 2019 & November 20th, 2020)
The result of all of this published information was an Application to the Supreme Court of British Columbia (as indicated above) by TEN (10) resident petitioners, and voters of the Township of Langley. It has been a while, mainly due to Covid-19 shutdowns, however this application will be heard by the Supreme Court of British Columbia Monday November 30th, 2020 thru to December 3rd, 2020.
I am in receipt of a copy of the “Respondents” court submission in support of their court petition to be heard on the dates above.
Excerpt from Petitioners Submissions:
PART V. ORDERS SOUGHT (Page 36)
113.The petitioners seek the following orders
1) A declaration that the respondents failed to disclose a direct or indirect pecuniary conflict of interest contrary to section 100 of the Community Charter.
2) A declaration that the respondents attended meetings, participated in discussions, attempted to influence voting, and/or voted in a manner contrary to s. 101(2) of the Community Charter.
3) An order pursuant to s. 111 of the Community Charter that the respondents, other than Former Councillor Quaale, are disqualified from holding office until the next general local election.
4) Costs, including special costs.
(lwd.com) Commentary on Petitioners Submission:
The submission by the Petitioners is detailed, very complete and in my view very compelling! This is obviously being dealt with in a court of law so the outcome cannot be judged at this point. Having said that, the Petitioners submission is some 36 pages in length which cannot be fully copied into this Blog, however we will offer some excerpts that we find are of particular interest to residents of the Township regardless of the outcome.
Excerpt from Petitioners Submissions cont’d:
PART I. INTRODUCTION AND OVERVIEW (Page 1&2)
- The petitioners seek declarations that the respondents, three sitting members of the Council of the Township of Langley (the “Township”) – including the mayor – and a former city councillor, failed to disclose pecuniary conflicts of interest contrary to the Community Charter, S.B.C., 2003, c. 26 (“Community Charter”). As a result of that failure, the petitioners say that those respondents who are currently sitting members of Council must be disqualified from their positions in office.
- This case is based on unprecedented (and largely undisputed) facts. In the lead-up to the 2018 municipal election, the respondents received numerous campaign contributions from multiple property developers while those same developers had applications before Council. In some cases, these contributions were received within days of the application coming before Council. Despite having received a legal opinion from the Township’s solicitor that a conflict of interest could exist if contributions were accepted while developments were “in-stream”, or if the contributions were made shortly after a development application was made, none of the respondents disclosed the contributions and sought legal advice, let alone made a declaration that they were in a conflict of interest. The respondents went on to vote in favour of each of the development applications.
- To the petitioners’ knowledge, this pattern of campaign contributions, with such a close temporal proximity between the contributions and votes on applications, has never come before the courts. It in turn raises an important legal issue with widespread implications for the integrity of, and public confidence in, municipal governance in this province. To date, the jurisprudence on conflicts of interest arising out of campaign contributions has held that a contribution, and a later vote in favour of an application, does not constitute a conflict of interest without “something more”. The petitioners say that, in this case, the “something more” is the pattern and temporal proximity of the contributions and voting behaviour, which would lead a reasonably informed person to conclude that the contributions might have influenced the exercise of the respondents’ duty as Council members.
- For their part, the respondents say that there is a much higher legal threshold, and that there must be explicit evidence that the respondents agreed to “deliver a vote” or a quid pro quo before a conflict of interest can be made out. The petitioners say that such a high threshold would be virtually impossible to meet from an evidentiary perspective and is in any event entirely inconsistent with the broad and liberal interpretation to be applied to the conflict of interest provisions in the Community Charter. The purpose of the provisions – to maintain public confidence that elected officials do not have divided loyalties – must inform the legal threshold that is to be applied by this Court. Public confidence can be undermined in circumstances short of an explicit “agreement to vote” or quid pro quo. It is also not restored by virtue of the fact that disclosure of the contributions is later required under the Local Elections Campaign Financing Act, S.B.C. 2014, c. 18. It is the lack of disclosure, and the failure to seek legal advice, at the time of the votes that undermines public confidence.
- In this case, the circumstances – the timing of the contributions relative to votes, the sheer number of contributions, the repeated pattern of behaviour, the ignoring of legal advice, and the perceived circumvention of legislative restrictions on campaign contributions – are sufficient to give rise to a conflict of interest. If the respondents are correct, and there is no conflict of interest in this case, the democratic principle of transparency will be substantially undermined given that the voting public would have no opportunity to even know about the contributions, and the possibility of divided loyalties, at the time of the votes.
PART II. FACTS (Page 2&3)
- The Parties
- The Township is not a named respondent in this Petition but was served pursuant to s. 111(5)(b) of the Community Charter. It has filed a Response to Petition and affidavit material in support of the respondents.
(lwd.com) Commentary on Petitioners Submission:
IMPORTANT – NOTE: The Township of Langley has filed a Response to the Petition and filed an affidavit in support of the Respondents apparently suggesting Council members only followed staff’s recommendations on the respective proposal in front of them. That in my view and experience as a former Alderman and a Mayor is an insanity defense! Staff / the Township have no way of knowing what donations have been made to elected members of Council. This does not absolve members of Council from not removing themselves from the decision or at the very least announcing a potential conflict due to the donations received. Council members are not obligated to support staff recommendations, they knew better!
The question must be asked, WHY is the Township of Langley interfering in a legal question that only affects the politically elected? They have no business in getting involved, it could reflect a bias on their part for some unknown reason, what could that be? It should be explored further, it doesn’t make any common sense.
Excerpt from Petitioners Submissions cont’d:
B The Campaign Contributions (Page 3,4,5, &6)
12. As noted at the outset, this case does not involve a single contribution from one developer and a subsequent development application by that developer. Rather, it involves numerous contributions by persons connected to a number of developers made while their development applications were before Council in the lead-up to the municipal election held on October 20, 2018.
13. In short, Mayor Froese received at least $12,600,6 Councillor Whitmarsh received at least $8,900,7 Councillor Long received at least $8,000,8 and Former Councillor Quaale received at least $7,700,9 from persons who were owners, directors, officers, executives and/or employees of the various property development companies.
14. These are significant amounts, particularly in light of the recent amendments to the Local Elections Campaign Financing Act that had come into effect.10 Those amendments capped the maximum amount an individual could contribute to a campaign to $1,200.11Further, corporations were prohibited from making campaign contributions.12
i) The developers
15. In total, at least 19 persons connected with seven property development companies made campaign contributions to the respondents. The following is a summary of the individual contributors and the development companies they are associated with:
1) “The Mitchell Group” (Mitchell Group Investments Inc.)
• Ken Mitchell (Director and Officer)
• Diane Mitchell (Director and Officer)
• Jacilyn O’Shea (Director of Development)
• Ryan O’Shea (Director of Residential development)13
2) “The Beedie Group” (The Beedie Group Developments Ltd., BDC (Langley Property) Ltd., 161884 Canada Inc.)
• Ryan Beedie (President, sole Director and Officer)
• Rob Fiorvento (Managing Partner)
• Todd Yuen (President, Industrial)
• Jason Tonin (Vice President, Land Development)14
3) “Vesta” (Vesta Properties Ltd.)
• Kent Sillars (sole Director and Officer)
• Dennis Wiemken (Senior Vice President)
• Braedon Sillars (Development Coordinator)
• Julie Sillars (owner)
- Marlene Best (Senior Development Manager)15
4) “Lanstone” (Lanstone Homes (Murrayville) Ltd.)
• Lanson Foster (Director and sole Officer)
• John Tilstra (Director)16
5) “Infinity” (Infinity Properties Ltd.)
• Timothy Bontkes (sole Director and Officer)17
6) “Polygon” (Polygon Homes Ltd., Polygon Union Park Homes Ltd.)
• Scott Baldwin (Officer, Senior Vice President, Development)18
7) “Essence” (Essence Properties Inc.)
• Kevin Dhaliwal (Director)
• Seeta Dhaliwal (Director)19
16. Persons connected to The Mitchell Group contributed a total of $10,200 to Mayor Froese, Councillor Whitmarsh, and Former Councillor Quaale.20
17. Persons connected to The Beedie Group contributed a total of $10,800 to all four respondents.21
18. Persons connected to Vesta contributed a total of $8,800 to all four respondents.22
19. Persons connected to Lanstone contributed a total of $3,200 to Mayor Froese, Councillor Whitmarsh, and Former Councillor Quaale.23
20. Persons connected to Infinity contributed a total of $2,200 to Mayor Froese, Councillor Whitmarsh, and Former Councillor Quaale.24
21. Persons connected to Polygon contributed a total of $1,200 to Mayor Froese.25
22. Persons connected to Essence contributed a total of $2,400 to Councillor Long.26
C. The timing of the contributions relative to the development applications before Council (Page 6)
23. At the same time that these campaign contributions were made, all of the developers listed above had matters before Council in which they were interested parties. Most of these matters were rezoning applications or development permit applications. The following is a list of the matters before Council at the material time:
1) The Mitchell Group: The Williams Neighbourhood Plan.27
2) The Beedie Group: Four development permit applications.28
3) Vesta: Five rezoning applications, and two different contracts with the Township.29
4) Lanstone: One rezoning/heritage alteration permit application.30
5) Infinity: One rezoning/development permit application.31
6) Polygon: One rezoning/development permit application.32
7) Essence: One rezoning/development permit application.33
(lwd.com) Commentary on Petitioners Submission:
The Petitioners submissions go onto explain in detail the timing of each case before Council, the actions of each member of Council towards the respective application(s), the dates, timing and amount of donations received all supported in detail by the minutes of the Council meeting involved.
Excerpt from Petitioners Submissions cont’d:
D. The legal opinion
62. Importantly, the respondents engaged in this voting behaviour despite having received a legal opinion that doing so could constitute a conflict of interest.
63. In June 2016, the Township sought a legal opinion from Lidstone & Company as to whether campaign contributions from a developer would disqualify a council member from voting on that developer’s rezoning application. The opinion was received by Council on June 13, 2016.94 All the respondents were on Council at the time.
64. In the opinion, Don Lidstone, Q.C. advised that campaign contributions without more did not constitute a conflict of interest. In the opinion’s summary, he stated the following:
…the campaign contribution by itself does not create a conflict of interest, even if that developer later applies for a rezoning. An exception would be if a developer gives a Council member a donation when the rezoning application comes before Council.95
65. Mr.Lidstone also concluded his opinion by stating:
There could be a conflict if the Council member was personally or privately connected to the developer, if development was in-stream at the time of the election, or if the developer made a donation after the rezoning application was made. However, we understand that none of these apply in relation to the Brookswood rezoning applications.96
E. The respondents’ evidence
66. For their part, the respondents do not deny that they received any of the contributions at issue in this proceeding, nor do they deny that they participated in, and voted on the various applications without making any declarations of conflict of interest. Rather, they universally say that: (a) there was never any indication from the contributors that the contributions were made with any intention or expectation of an agreement to vote a particular way; (b) none of their votes were influenced by campaign contributions; and (c) they were always motivated to vote in the best interest of the Township.
(lwd.com) Summary:
The Respondents evidence above in (a) (b) and (c) is out of step when measured against numerous items of case law extensively outlined in the Petitioners Submissions. In summarizing numerous articles on case law including the Appeals Court the Petitioners state the following:
Excerpt from Petitioners Submissions cont’d:
78. Thus, three key points emerge:
1) The conflict of interest provisions are to be interpreted broadly and liberally.
2) The purpose of the provisions is to ensure that the public has confidence that their elected officials do not have divided loyalties, and therefore it does not matter whether there is any personal gain or not.
3) The test is an objective one – whether a reasonably well-informed person would conclude that the interest might influence the exercise of the public official’s duty.
(lwd.com) Summary Cont’d:
If you weigh the language contained in the Community Charter, if you weigh the decisions coming out of various case law examples as outlined in the Petitioners submissions, it only makes sense that these Council members plea rings hollow. That they act responsibly and honorably must be displayed by their actions (a declaration of a conflict or potential conflict of interest), not in words after the fact. Put another way – Talk is Cheap! If all one had to do was to tell a judge, just believe me, our society would be in far more trouble than is the case today.
If you wish to receive a PDF of the Petitioners submissions, reply to this email and I will send you a copy.
RG
I am working on a few posts at present that I believe are of significant concern to Township of Langley Residents, come back often for news of interest to Township residents.
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