Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/129296
scramble to declare a conflict. The Council for the Regional Municipality of Waterloo faced an unlikely situation in June 2011, when 40 per cent of members eligible to vote on an $818-million light rail transit system declared a conflict because they had properties near the proposed rail line, or worked nearby. This rendered them unable to vote on the largest public works project ever undertaken in the area. Eric Davis, a municipal and planning lawyer at Miller Thomson LLP, says the case highlights another legislative grey area. One exemption to the act covers those who have "an interest in common with electors generally." School trustees with children attending one of the school board's institutions must consider this when deciding whether to offer student services that, if absent, would create an expense for the trustee, he says. Indeed, proving that officials in smaller municipalities do not have a pecuniary interest can be troublesome, because there is a smaller pool of volun- teers willing to run for posts, he suggests. The need to avoid deterring strong candidates from standing for civic roles is one reason behind a widespread desire to address the fact that the Municipal Conflict of Interest Act allows for just one penalty: declaring the post vacant. Creating a range of sanctions was another of Cunningham's recommendations in the Ford case. Sometimes council members can be placed in a position of conflict through the actions of others, namely lobbyists. Toronto has responded to this risk by introducing a lobbyist registery, an idea that has also been raised in other Ontario cities including Brampton, Markham, and London. In Toronto, where the size of the register tripled between 2010 and 2012, the lobbying rules are currently being tested. For example, councillor Janet Davis complained after receiving a cookie from a lobbyist in celebration of International Women's Day. Does this amount to an attempt to exert influence? Johnson says this is probably going too far. "I don't think a cookie is creating a conflict. NHL hockey tickets, maybe," he says. Mascarin also warns against an "overregulation" of conflicts. He questions how a recent, failed attempt to ban evening meetings between Toronto city councillors and lobbyists could ever have been policed. Conflict of interest cases are relatively rare. This is probably largely due to the costs and time involved in bringing them to court. When Aurora, Ont., mayor Phyllis Morris won a conflict of interest case in March, the losing party was ordered to pay costs of $50,850. In April, the resident who unsuccessfully claimed Winnipeg mayor Sam Katz breached the act was told to stump up $10,000. But, rare as they are, the rash of recent allegations has led to a heightened awareness of conflicts of interest. In-house counsel are under no obligation to provide advice to council members but, if they do, in an evolving municipal landscape they would do well to stay one step ahead. IH Employment and Labour Lawyers Experience Counts. Referrals respected and appreciated. Shields O'Donnell MacKillop LLP 416.304.6400 65 Queen Street W, Suite 1800, Toronto, Ontario Canada M5H 2M5 Shields_IH_Apr_11.indd 1 w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E june3/1/11 10:04:5635 2013 • AM