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CED, an Overview of the Law — Municipal Corporations

In the wake of the controversy surrounding Toronto’s Mayor Rob Ford, there has been considerable attention on what legal grounds allow for the removal of an elected mayor from office. This C.E.D post provides an overview of grounds for removal. Interestingly, Ontario is one of the few jurisdictions where a criminal conviction alone is insufficient to remove a member of council or a mayor. However, being unable to vote in a municipal election disqualifies a person from holding office, and persons serving penal sentences are not permitted to vote in municipal elections. Therefore, a member of council or a mayor who is serving a penal sentence may be removed from office on the ground of being ineligible to vote in a municipal election.

Municipal Corporations — Administration and Council

 

By: Todd Desourdie

 

I.2– 4: Eligibility of Members of Council and Grounds for Disqualification and Removal

Click here for access to this ced title and its associated caNadian abridgment links on westlaw canada

  

I.2.(a): Eligibility







See Canadian Abridgment:  MUN.IV.2 | Municipal Law | Council members | Eligibility requirements
















Legislatures have prescribed qualifications which a candidate for office must possess to be eligible for election to council. Restrictions on the rights of persons to be candidates should be strictly construed.1 The right to stand for election to a representative body is not to be taken away without clear statutory direction.2















The section of the Canadian Charter of Rights and Freedoms, giving every citizen the right to be qualified for membership in the House of Commons or in a legislative assembly, does not apply to municipal councils.3 As well, the freedom of association and freedom of expression guaranteed by the Charter do not create a right of an individual to run for municipal office.4 It has been held that the prohibition in Alberta’s Local Authorities Election Act against city employees running for office does not result in discrimination, contrary to s. 15 of the Charter.5















 A council member who is also a city employee has standing to challenge the constitutionality of a statute said to disqualify him or her from holding office.6















Legislatures have also prescribed certain disqualifications. Both qualification and disqualification relate to the time of the election and not merely to the time of acceptance of office. The day appointed for nomination has been held to be the day of the commencement of the election.7 The polling day is but an adjournment of the election and the disqualification of a candidate, therefore, has reference to the day appointed for nomination.8 Thus, a candidate must meet the prescribed requirements both at the time of voting and also on nomination day, and since an election includes the nomination, no distinction is made between a disqualification existing at the time of the election and one existing at the time of the nomination.9















Although a member may be disqualified from continuing in office for failing to meet the strict criteria for nomination, he or she may be allowed to retain his or her seat where there is no harm, nor any specific prejudice accruing to, the electors, as a result of an inadvertent breach of the nomination requirements.10 Care must be taken to differentiate between essential statutory requirements of eligibility and mere technical procedural requirements.11















A member’s qualifications are affirmative attributes which he or she must possess, while disqualifications are negative attributes which he or she must not have. One requirement of the Municipal Act, 2001, is that a person must not be disqualified under the Act or any other Act.12 The Act lists classes of persons who, by virtue of their position or their relationship to the corporation or its local Boards, are prevented from sitting on the council.13 Disqualifying clauses must be strictly construed, since they limit a person’s rights.14















The four principal qualifications required by most municipal statutes at the time of nomination are: (i) residence; (ii) citizenship; (iii) full age; and (iv) property qualification. Sometimes, property ownership is an alternative requirement to residence. In Ontario, a candidate must be entitled to be an elector, thereby satisfying the first three qualifications noted above.15















The question has arisen whether a person must continue to meet the prescribed qualifications throughout his or her term of office in order that he or she retain his or her seat.16 In Ontario, the Municipal Act, 2001, makes it clear that disqualification will ensue if a member ceases to hold his or her qualifications after election.17 In Saskatchewan, the Municipalities Act declares that a member is disqualified upon ceasing to hold the qualifications required by law.18 Under the Alberta Municipal Government Act, a councillor who never was, or ceases to be, qualified for nomination, is disqualified from remaining a member.19

 

I.2.(d).(i).A: Grounds for Disqualification







See Canadian Abridgment:  MUN.IV.2.c | Municipal Law | Council members | Eligibility requirements |Grounds for disqualification















Most municipal statutes contain provisions which not only disqualify a person from running for office, but which also prevent him or her from holding his or her seat if elected. It is within provincial jurisdiction to impose a disqualification from office as the penalty for the contravention of statutory provisions enacted to ensure the proper conduct of municipal affairs,1 such as municipal conflict of interest provisions. While a provision declaring certain classes ineligible to hold office may infringe the Charter,2 since it discriminates by preventing individuals from running for office, it has been held to be demonstrably justified in a free and democratic society.3















Candidates for municipal office should not be in a position where their duty and personal interest may conflict.4 The policy of the law is that no person shall be a member of a municipality who cannot give a disinterested vote on a matter of dispute which may arise.5 Furthermore, in order to maintain their independence and remain free from suspicion, municipal representatives must act gratuitously and must not, either directly or indirectly, derive any advantage or benefit from the services they render the municipality.6















The courts, generally, enforce conflict of interest provisions strictly,7 even though the member may have been acting in good faith and in the interest of the corporation.8

As these statutory provisions are restrictive and penal in their nature, they must be strictly construed,9 according to their very words.10 It has been held that the right to represent one’s fellow citizens in a representative capacity is a valuable right not to be taken away, except by the clearest language.11 The statutory meaning cannot be extended by implication,12 and if the word construction of the statute is doubtful, the sitting member should not be unseated.13 The power to unseat should only be exercised in a plain case, upon clearly proven facts,14 and it has been held that an allegation of disqualification must be proven beyond a reasonable doubt to warrant a finding adverse to a successful candidate.15

Disqualification relates to the time of nomination and not to the time for taking the poll. Accordingly, a candidate who is disqualified on nomination day is ineligible for election.16

Under some statutes, disqualification, such as that resulting from a conviction for a criminal offence, may be permanent and does not cease on termination of the imprisonment,17 but under others, the disqualification may be purged at the next general election, and the formerly disqualified person is eligible for re-election at that time.18















I.4.(a).(ii): Council Members – Vacancies – Ontario







See Canadian Abridgment: MUN.IV.2 Municipal law | Council members | Eligibility requirements; MUN.IV.6 Municipal law | Council members | Resignation; MUN.IV.7 Municipal law | Council members | Removal from office; MUN.IV.8 Municipal law | Council members | Conflict of interest; MUN.IV.9 Municipal law | Council members | Procedure to fill vacancy
















In Ontario, the office of a member of council becomes vacant if the member: (i) becomes disqualified; (ii) fails to make the declaration of office before the deadline; (iii) is absent from the meetings of council for three successive months without being authorized to do; (iv) resigns from his or her office and the resignation is effective; (v) is appointed or elected to fill any vacancy in any other office on the same council; (vi) has his or her office declared vacant in any judicial proceeding; (vii) forfeits his or her office; (viii) dies, whether before or after accepting office and making the prescribed declarations.1 A vacancy does not apply if the upper-tier council permits the member to hold both offices.2 A member of council of a municipality may resign from office by notice in writing filed with the clerk of the municipality. A resignation is not effective if it would reduce the number of members of the council to less than a quorum and, if the member resigning from office is a member of the councils of both a local municipality and its upper-tier municipality, the resignation is not effective if it would reduce the number of members of either council to less than a quorum.3|















Before a seat can be regarded as unoccupied, it must have been filled in the first place. A seat is filled when the office has been accepted by a person elected or appointed, notwithstanding that some prerequisite to the right to hold office has not been met.4 In Ontario, it has been held that the word "vacancy" includes vacancies which occur by reason of a failure to elect. A vacancy for this purpose may exist where an elected member fails to qualify within the time limited.5















Where a council is unable to hold a meeting due to failure to constitute a quorum within 60 days of the meeting that was not held, the minister may, by order, declare the seats of the members of the council to be vacant and a new election shall be held.6







Unless authorized by statute, a municipal body has no power to fill a vacancy in its membership. The power of the council to declare a vacancy is purely statutory. While a regularly qualified and appointed or elected member continues in office, no power exists to appoint another7 or to elect another to take his or her place.8 In most provinces, a vacancy can be filled only by by-election held after the seat has been declared vacant by court proceedings or by the council.















Two types of vacancies are contemplated: those occurring before election or arising out of it, and those occurring after a member-elect who has been legally elected has taken his or her seat. The latter usually arises through the death or resignation of a councilor; through having his or her seat declared vacant by the council; or by the court, on the ground that he or she has forfeited his or her seat.9 On the other hand, the former is brought about by the death of the candidate after nomination, but before the close of voting day,10 or by his or her removal from office on the ground of the invalidity of his or her election. A vacancy of the former type may also occur through the failure of a candidate to file his or her declaration of qualification, in which case his or her name would be left off the ballot,11 or through the failure of a member-elect to take his or her declaration of office, in which case he or she is deemed to have resigned.12 Some of the provisions in the Act for the filing of vacancies apply only to vacancies arising after election.13















I.4.(b).(i)Vacancy Declared by Council







See Canadian Abridgment: MUN.IV.2 Municipal law | Council members | Eligibility requirements; MUN.IV.7 Municipal law | Council members | Removal from office; MUN.IV.8 Municipal law | Council members | Conflict of interest; MUN.IV.9 Municipal law | Council members | Procedure to fill vacancy
















Where a member comes within the terms of the Act, so that his or her seat is declared to be vacant, proceedings do not have to be taken to remove him or her from office, as would be the case if he or she became disqualified after election under any of the clauses of the Act.1 However, it has been held that a seat does not become vacant until the council so declares.2















If a council declares that the election of one of its members is a nullity, or that he or she forfeited his or her seat and that the seat is vacant, on grounds not authorized by statute, the member may apply to the court for an order entitling him or her to his or her seat.3 Similarly, if the grounds alleged for the unseating are doubtful and depend on the interpretation of the statute, the council may be ordered by mandamus to restore the ejected members' privileges.4 A councilor whose seat is illegally declared vacant may, in addition, attack the resolution or by-law unseating him or her by motion to quash,5 and where he or she is wrongfully excluded from council after being illegally deprived of his or her seat, he or she may also obtain an injunction to restrain the other members from excluding him or her.6















A conviction for an indictable offence is a ground of forfeiture and disqualification in some provinces, however not in Ontario.7

 

 

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