The case as presented in court along with my editorial comments are being left in place so readers can judge for themselves their views on the actions of 3 current members of Council and 1 that was defeated. What happens from here will be up to the opinion of residents leading up to the next election? Are you supportive of Council members making these decisions or not? Over to you……
No. S1914167 Vancouver Registry
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
Report on Supreme Court Petition Hearing; You won’t get this in the Langley Advance Times!
langleywatchdog.com (lwd.com) Preamble: As a follow up to our Breaking News feature in our previous BLOG Post, we offer the following commentary which further refers to the Petitioners submissions. I will not refer in any way to the Court proceedings as there is a prohibition to any recordings of them. More importantly I want to lay out the substance of the Petitioners argument which deals with the timing, the amounts and the proposals that were voted on by members of Council. As the Petitioners outlined their case in detail, the Respondents response leaves one like me, a former politician and veteran of numerous election campaigns as a candidate and manager, gasping for air. Really?
One thing I learned very early on in politics through those with significant experience and through the distribution of information and instructions from Elections BC and/or the City of Delta and the Township of Langley – the Candidate appoints a Financial Agent, yourself or someone else, BUT YOU (the candidate) are responsible for knowing all aspects of your campaign! You (the candidate) are responsible for any and all debt and therefore for any and all fundraising, the amounts, from whom and when. Frankly, this is so obvious it is hard to believe anyone elected is pleading otherwise. To reinforce that point, every election I have been in, worked to a budget and a plan i.e. brochures, newspaper ads, signs etc.! Not knowing exactly where you were at, was just a non-starter. So a message to our Council who are respondents and subject to this current petition, as an old saying goes “you have either been lying to us or you are too stupid to be running this Municipality.”
What was this Supreme Court Hearing all about? In a clearly spelled out submission the Petitioners state that this is clearly a case of “Conflict of Interest” which is in keeping with the Don Lidstone opinion frequently referred to (all members of Council received this opinion as requested in 2016), outlining how a direct or indirect pecuniary Conflict of Interest can exist. Shockingly the Respondents, in their submission, came out of the gate making an accusation that the named members of Council are being accused of Bribery?
Conflict of Interest IS NOT Bribery, the Respondents strategy is to simply change the narrative!
Put another way it is and was nothing more than a misdirection play!
So, it is important that residents understand the detail of the facts on why the Petitioners brought this case forward. I must add, this must come at a significant personal financial cost to the local residents / Petitioners with absolutely NO benefit to them other than, hopefully, our municipality will be run in a very transparent way. Speaking personally from my experience as Mayor of the Township of Langley, that would be a refreshing change. I will use excerpts from the Petitioners submission interspersed with my commentary to provide, hopefully, an easily understood explanation.
IMPORTANT – When reviewing dates, remember, the Municipal Election in 2018 was on Oct. 20th!
RE Williams Neighborhood Plan / The Mitchell Group
April 9, 2018, the bylaw amendments that were required to implement the Williams Neighbourhood Plan were put before Council and passed first and second reading. Mayor Froese, Councillor Whitmarsh, and Former Councillor Quaale (the respondents who would end up receiving contributions from the Mitchell Group) were present and voted in favour of the Plan and opposed the referral of the Plan so that Council could receive additional presentations.38
April 23, 2018, the Plan went through public hearing before Council. Ken Mitchell was the first speaker. The minutes note the following:
K. Mitchell, Mitchell Group, Developer of the Williams Business Park and Retail Complex, was in attendance and stated that they want Williams to be a self-contained, walkable community with a neighbourhood retail centre to meet community needs. The Coriolis Consulting Corp. report confirms that four square feet of grocery and 20 square feet of commercial per person are industry standard metrics. The proposed Commercial Project will have a neighbourhood retail complex up to 150,000 square feet with a grocery store of 40,000 feet.39
May 7, 2018, the Plan was put before Council for third reading. At third reading, Councillor Whitmarsh moved to make an amendment to increase the total area for grocery use to 40,000 square feet. The amendment was seconded by Former Councillor Quaale. Mayor Froese also voted in favour, and 40,000 square feet was ultimately approved.40
May 16, 2018, Less than 10 days later Councillor Whitmarsh received $1,200 from Ken Mitchell, $1,200 from Diane Mitchell, and $600 from Ryan O’Shea.41
May 27 2018, Mayor Froese received $1,200 from Ken Mitchell and $1,200 from Diane Mitchell.42
June 18 2018, Former Councillor Quaale received $1,200 from Ken Mitchell, $1,200 from Diane Mitchell, and $600 from Ryan O’Shea.43
June 22 2018, Mayor Froese received an additional $600 from Jacilyn O’Shea and $600 from Ryan O’Shea.44
October 1, 2018, the Plan was before Council for final adoption. At that meeting, Mayor Froese, Councillor Whitmarsh and Former Councillor Quaale voted against an amendment to incorporate more park space. That amendment was defeated 5-4.45
In summary, Mayor Froese received $3,600, and Councillor Whitmarsh and Former Councillor Quaale each received $3,000 from persons connected to the Mitchell Group, when the Williams Neighbourhood Plan was between third reading and adoption. In Councillor Whitmarsh’s case, he received his contributions just 9 days after having moved to amend the Plan to increase the area for grocery use to 40,000 square feet, which matched exactly the proposal that Mr. Mitchell advocated for at the public hearing in April. The minutes from the October1, 2018 meeting showed that none of these respondents disclosed a conflict of interest or removed themselves from the meetings.46
RE The Beedie Group
June 30, 2018, Mayor Froese received $1,200 from Robert Fiorvento, the Beedie Group’s Managing Partner. This was only nine days before a development permit application for a 306.5 m2commercial building would be before Council. 47
July 4, 2018, Mayor Froese received another $1,200 from Jason Tonin, the Beedie Group’s Vice President of Land Development.48
July 9, 2018, Mayor Froese voted in favour of the development permit application for the 306.5m2commercial building for two restaurants (“Beedie Group’s Restaurant Application”).49
July 10, 2018, one day later Mayor Froese received $1,200 from Ryan Beedie, the Beedie Group’s president.50
July 15, 2018, Councillor Whitmarsh received $2,400 from persons connected to the Beedie Group.51This was just six days after he voted in favour of the Beedie Group’s Restaurant Application, and just eight days before he voted in favour of a development permit application for an 8,451 m2 industrial building in the Gloucester Industrial Park (“Beedie Group’s Gloucester Application”) on July 23, 2018.53 He also voted in favour of other Beedie Group applications on September 17, 2018 and October 1, 2018.
NOTE – By the time the Beedie Group’s Gloucester Application was before Council, Mayor Froese had already received $3,600 in the last several weeks from persons connected to the Beedie Group.
July 25, 2018, Councillor Long received $2,400 from persons connected to the Beedie Group.56 This was just two days after the Beedie Group’s Gloucester Application was approved,57 16 days after the development permit for the Beedie Group’s Restaurant Application was approved,58 and about two months before Councillor Long voted in favour of another two of the Beedie Group’s developments on September 17, 2018 and October 1, 2018.
September 17, 2018, Council considered another Beedie Group development permit application for a 4,531 m2 industrial building, that was to be operated by Inno Bakery, also in the Gloucester Industrial Park (“Beedie Group’s First Bakery Application”).60 Mayor Froese, Councillor Whitmarsh and Councillor Long voted in favour, and did not disclose the fact that they had received substantial campaign contributions from persons connected to the Beedie Group.61
September 25, 2018, Former Councillor Quaale received $1,200 from Todd Yuen of the Beedie Group.62 This was only five days before Council would consider a development permit application for a 4,651 m2 industrial building adjacent to the property subject to the Beedie Group’s Bakery Application, which was also to be operated by Inno Bakery (“Beedie Group’s Second Bakery Application”),63 and only eight days after the Beedie Group’s First Bakery Application had passed.64
October 9th, 2018, eight days after Mayor Froese voted in favour of the Beedie Group’s Second Bakery Application, he received $1,200 from Todd Yuen, the Beedie Group’s President, Industrial.
RE Vesta
May 16, 2018, Councillor Whitmarsh received $1,800 from persons connected to Vesta.66 This was only nine days after Vesta’s development of 73 single family lots, 39 rowhouse lots, 18 semi detached lots, and 122 townhouse units (“Vesta’s First Latimer Development Application”), was approved.67 This was also only approximately a month before two significant Vesta projects would be before Council for first reading (June 25, 2018).68
June 18, 2018, Former Councillor Quaale received $600 from Marlene Best, Vesta’s then Senior Development Manager.69 This was only seven days before two significant Vesta projects would be before Council for first reading (June 25, 2018), one for 56 townhomes and 186 apartments (“Vesta’s Second Latimer Development Application”),70 and the other for 449 apartments, 3,398 m2 of commercial space and 10,033 m2 of office space (“Vesta’s Carvolth Development Application”).71 It was also less than a month from when the two Vesta contracts would be considered by Council on July 9, 2018.72 The contribution was made just over a month subsequent to when the bylaw amendments for Vesta’s First Latimer Development Application were adopted (May 7, 2018).73
June 26, 2018, Mayor Froese received $1,000 from Kent Sillars of Vesta. This was only one day after Vesta’s Second Latimer Development Application and Vesta’s Carvolth Development Application passed first and second reading, and less than a month before both applications passed third reading.74
NOTE – This contribution from Mr. Sillars to Mayor Froese was also two weeks before Council considered and approved a Development Cost Charges Front-ending Agreement between the Township and Vesta. At that same meeting on July 9, 2018, Council also passed an amendment to another by-law to allow for the execution of a Development Works Agreement between the Township and Vesta.75Further, this contribution was also received less than a month before a 792 multi-family unit and hotel development of Vesta’s was considered before Council on July 23, 2018 (“Vesta’s Carvolth High-Rise Development Application”).76The contribution came less than two months after Vesta’s First Latimer Development Application was adopted,77and approximately two and half months after a rezoning application for 153 Vesta townhomes passed third reading on April 9, 2018.78
September 11, 2018, Councillor Long received $3,200 from persons connected to Vesta.79This was only 20 days before third reading of Vesta’s Carvolth High-Rise Development Application.80This was also less than two months after Vesta’s Second Latimer Development Application and Vesta’s Carvolth Development Application had passed third reading but were still pending final adoption.81
September 18, 2018, Councillor Whitmarsh also received another $500 from Braedon Sillars, Vesta’s Development Coordinator.82This was less than two weeks before Vesta’s Carvolth High-Rise Development Application was brought before Council for third reading.83
September 26, 2018, Former Councillor Quaale also received an additional $1,700 from persons connected to Vesta.84 This was just five days before Vesta’s Carvolth High-Rise Development Application was before Council for third reading.85
RE Lanstone
May 16th 2018, Councillor Whitmarsh received $1,000 from Lanson Foster of Landstone. This was less than a month before Lanstone would have a 54-unit residential development (“Landstone’s Application”) before Council for first reading on June 11th, 2018.
June 18, 2018, Former Councillor Quaale received $1,000 from Lanson Foster of Lanstone. This was just seven days after Lanstone’s Application passed first and second reading and less than a month before it would pass third reading on July 9, 2018.87
September 12, 2018, Mayor Froese received $1,200 from John Tilstra of Lanstone. This was approximately two months after Lanstone’s Application passed third reading.88
RE Infinity
May 16, 2018, Councillor Whitmarsh received $500 from Timothy Bontkes of Infinity. This was approximately two months after Infinity’s 51 townhouse development (“Infinity’s Application”) passed third reading on March 5, 2018, and two months before it would be adopted on July 23, 2018.89
June 18, 2018, Former Councillor Quaale received $500 from Timothy Bontkes. This contribution was made approximately one month before Infinity’s Application was adopted on July 23, 2018.90
June 27, 2018, Mayor Froese received $1,200 from Timothy Bontkes. This was approximately three and a half months after Infinity’s Application passed third reading on March 5, 2018, and less thana month before it was adopted on July 23, 2018.91
RE Polygon
June19, 2018, Mayor Froese received $1,200 from Scott Baldwin of Polygon. This was just six days before Polygon’s 589 unit apartment building application came before Council for first reading on June25, 2018.92
RE Essence
October 9, 2018, Councillor Long received $2,400 from persons connected to Essence. This was approximately two and a half months after Essence’s application for a 102 townhouse unit and 75 apartment unit development application passed third reading on July23, 2018, and two months before it would be adopted on December10, 2018.
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, 2016.94All 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
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.97
67. Much of the respondents’ evidence is focused on their recollection or knowledge of who made the impugned contributions, as well as their recollection of the development applications in question. As set out below, the petitioners say that, on the application of the proper legal test, the respondents’ subjective recollections or motivations as to how they voted on any particular project are irrelevant.
The interpretation of the conflict of interest provisions and the applicable legal test
72. The B.C. Court of Appeal’s decision in Schlenker is the most recent and leading authority on the interpretation of the Community Charter conflict of interest provisions.98 In that case, the Court of Appeal overturned the chambers judge’s decision that the elected officials were not in a direct or indirect pecuniary conflict of interest when they voted to award service contracts to societies of which they were directors. The Court held that the chamber judge’s reasoning that the elected officials were not themselves enriched, and therefore there was no pecuniary conflict, applied too narrow an interpretation to the phrase “direct or indirect pecuniary interest”. Such a narrow interpretation was said to undermine the purpose of the conflict of interest provisions.99
73. After noting the “modern approach” to statutory interpretation, Mr. Justice Donald, speaking for a unanimous Court, held that the conflict of interest provisions in the Community Charter must be given a broad and liberal interpretation consistent with its purpose,100 which is to prevent elected officials from having divided loyalties. The Court quoted with approval from the following passage in Re Moll and Fisher:
This enactment, like all conflict-of-interest rules, is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters. It recognizes the fact that the judgment of even the most well-meaning men and women may be impaired when their personal financial interests are affected. Public office is a trust conferred by public authority for public purpose. And the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest may be in conflict with their public duty. The public’s confidence in its elected representatives demands no less. Legislation of this nature must, it is clear, be construed broadly and in a manner consistent with its purpose.101
74. In an earlier decision, the Court of Appeal held that these provisions are “intended to enhance and protect the integrity of local government.”102 This is consistent the reasoning of other appellate courts with respect to the objective of similar conflict of interest provisions. For example, the Alberta Court of Appeal has stated that such a provision “sustains the right of an elector to the even-handed, independent consideration of his elected representatives on questions before Council, unaffected by any influence that could potentially flow from a direct or indirect pecuniary interest”.103
Summary:
This hearing wrapped up Friday December 5th, 2020. Justice Walker stated he expected to release a decision early in 2021. He went on to state that it is a very interesting case with interesting issues. Further he stated he is generally very quick at getting judgements out, but this one may take a while.
Obviously what I have published in this BLOG Post deals mainly with the guts of the Petitioners argument based on the “close temporal proximity between the contributions and votes on applications” as the Petitioners lawyer Mark Underhill has stated in his admissions. All of this in the face of asking for and receiving a legal opinion from a recognized municipal legal expert, Don Lidstone Q.C. a short two years before.
We won’t get into any discussion or debate on any potential Respondent culpability or finding by the courts however an objective assessment of “whether a reasonably well-informed observer would conclude that the campaign contribution might influence the duty of the elected official”, is the crux of the argument.In this case, there exists a unique constellation of facts, including:
1) the sheer number of contributions from multiple developers;
2) the timing of contributions while those developers had matters before counsel, sometimes within days of a vote on that matter;
3) the fact that there were several individuals making contributions from the same developer, effectively circumventing the restrictions on campaign contributions;
4) the proposing and passing of amendments to coincide with the proposal of a developer (in the case of the Williams Neighbourhood Plan); and
5) the. repeated pattern of conduct despite legal advice to the contrary
111. A reasonably well-informed person would conclude that, given these extraordinary facts, the respondents might have been influenced by these contributions to vote in the best interests of the developers or their own political careers rather than in the best interests of their constituents. Public confidence in the integrity and transparency of municipal governance cannot be maintained if these circumstances are deemed acceptable.
IMPORTANT – Message to Township of Langley Taxpayers and VOTERS!
Win, lose or draw, are you comfortable with your municipal politicians accepting donations in this fashion without at least disclosing receipt of contributions received while proposed development applications are “in stream” at the time of their vote? I am not!
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.
Protect your Democratic Rights – Protect your NEIGHBORS Democratic Rights – stay informed, stay involved and VOTE!!!
Share this BLOG; forward it to your friends, neighbors, and relatives!
langleywatchdog.... and more! 