Biffis v.

Sainsbury, 2018 ONSC 3531, 2018 CarswellOnt 10650

2018 ONSC 3531, 2018 CarswellOnt 10650, 294 A.C.W.S. (3d) 176

2018 ONSC 3531

Ontario Superior Court of Justice

Biffis v. Sainsbury

2018 CarswellOnt 10650, 2018 ONSC 3531, 294 A.C.W.S. (3d) 176

Sylvia Biffis (Applicant) and Fran Sainsbury (Respondent)

M.P. Eberhard J.

Heard: June 1, 2018

Judgment: June 8, 2018
Docket: CV-17-1588-00

Counsel: E. Bisceglia, for Applicant

S. Hahn, for Respondent

Subject: Property; Public; Municipal

Related Abridgment Classifications
Municipal law
IV Council members
IV.8 Conflict of interest
IV.8.f Practice and procedure
Headnote
Municipal law --- Council members — Conflict of interest — Practice and procedure
Respondent councillor FS declared pecuniary interest in matter relating to hook up of water services to large
condominium residences — Councillor resided in one of approximately 1,400 condominium residences serviced by two
residential servicing organizations — Applicant brought application seeking declaration that councillor contravened
s. 5(1)(c) of Municipal Conflict of Interest Act — Application dismissed — Councillor did not contravene Act — In
each case councillor first indicated to councillors that she was going to declare herself in conflict — Councillor had
not been careless in looking into whether she had conflict — Councillor obtained legal opinion which she knew had
to be unofficial — Councillor intended to be cautious and declare conflict notwithstanding — Certainly, by expressing
concern, councillor was trying to provide information that might influence approach councillors took to matter but court
rejected, as inconsistent with her attentiveness to possibility she was in conflict and her cautious declaration, assertion
that she was intentionally engaging in misconduct to influence their votes.
Table of Authorities
Cases considered by M.P. Eberhard J.:
Ennismore (Township), Re (1996), 31 M.P.L.R. (2d) 1, 1996 CarswellOnt 154 (Ont. Gen. Div.) — considered
Ferri v. Ontario (Ministry of Attorney General) (2015), 2015 ONCA 683, 2015 CarswellOnt 15240, 40 M.P.L.R.
(5th) 223, 127 O.R. (3d) 613, 391 D.L.R. (4th) 496, 341 O.A.C. 17 (Ont. C.A.) — considered
Statutes considered:
Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50
Generally — referred to

s. 1 "interest in common with electors generally" — considered

s. 4(j) — considered

s. 4(k) — considered

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Biffis v. Sainsbury, 2018 ONSC 3531, 2018 CarswellOnt 10650
2018 ONSC 3531, 2018 CarswellOnt 10650, 294 A.C.W.S. (3d) 176

s. 5 — considered

s. 5(1)(c) — considered

APPLICATION by applicant seeking declaration that Councillor FS was in conflict of interest.

M.P. Eberhard J.:

1      I find that Councillor Fran Sainsbury did not contravene subsection 5(1)(c) of the Municipal Conflict of Interest
Act which specifies:

Section 5(1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has
any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at
which the matter is the subject of consideration, the member

(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such
question.

2           On September 25, 2017, Councillor Sainsbury declared a pecuniary interest in a matter relating to the hook
up of water services to large condominium residences. She resides in one of the approximately 1400 condominium
residences serviced by BRSO (Briar Hill Residential Servicing Organization) and GRSO (Breen Briar Residential
Servicing Organization).

3      On September 18, 2017 a letter was sent to the town Building Department by McCarter Grespan, counsel "retained
by Briar Hill Residential Servicing Organization (BRSO) and Breen Briar Residential Servicing Organization (GRSO)
to assist them with their discussions with the Town concerning their respective requests to explore the feasibility of water
supply....", referencing a motion and stating "the motion was proposed by Councillor Sainsbury who is a resident of the
Green Briar community. She has an obvious pecuniary conflict of interest which, to my knowledge, was not declared at
the meeting and would preclude her from adding wording of this nature into the motion or participating in the motion."
The letter was copied to BRSO, GRSO, the town solicitor, the town CAO and the Clerk of Town Council.

4      No Application alleging contravention was brought concerning this August activity within the limitation period
under the Act.

5      On August 19, 2017, Councillor Sainsbury, recognizing the possibility of conflict obtained an unofficial opinion from
municipal lawyer John Mascarin that her pecuniary interest was exempt as an interest in common with other electors
and that there was no conflict in the participation in the motion to require staff to report to council on the issue. All
emphasize that this was necessarily an unofficial report.

6      On September 18 and 20, 2017 Councillor Sainsbury spoke to two councillors about the issue, each time noting that
she intended to declared a conflict of interest at the Committee of the Whole meeting on the September 25 th . It is these
conversations that are alleged to contravene subsection 5(1)(c) of the Municipal Conflict of Interest Act.

7      I accept that Councillor Sainsbury expressed concerns about the potential costs to the residents of the condominiums.
I accept that she urged the councillors not to support the requested water hook ups. They were of a different view.

8      I also accept that one of her concerns was the priority of this service compared to other water servicing projects she
had been working on in which she had no pecuniary interest.

9      Thereafter Councillor Sainsbury did not participate in any discussion of the water issue. It is a fact before me that the
issue has not yet been finally decided and that in May, 2018 at a meeting proximate in time to the continuing examination

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of the issues, Councillor Sainsbury announced the fact of this litigation at a council meeting. I have ruled separately that
the reaction of committees and Council to this announcement of a fact is not admissible before me.

10      I find that Councillor Sainsbury took considerable care not to put herself in the wrong as to contravention of 5(1)
(c) of the Municipal Conflict of Interest Act and, in the face of her recognition of the possibility of conflict, in the face
of a strongly accusatory letter from counsel for the developers and despite an unofficial opinion from a respected legal
resource, she determined to declare a conflict of interest. Only in speaking to two councillors before her declaration did
she tread on less secure ground.

11      Section 4 sets out circumstances where section 5 does not apply:

(j) by reason of the member having a pecuniary interest which is an interest in common with electors generally;

12      In the Act's section 1 the term is defined:

"interest in common with electors generally" means a pecuniary interest in common with the electors within the area
of jurisdiction and, where the matter under consideration affects only part of the jurisdiction, means a pecuniary
interest in common with the electors within that part.

13      I rely on the case of Ennismore (Township), Re, [1996] O.J. No. 167 (Ont. Gen. Div.) where LaForme J., as he then
was, considered the position of councillors who were also citizens who would be impacted by a decision of council and
whether the exemption for a councillor with "interest in common with electors generally" should apply:

10 The authorities have not evolved any guidelines to determine what constitutes a sufficient pecuniary interest so
as to attract the provisions of disqualification of a member of council, save and except that each conflict of interest
case will be considered and decided on its own facts. In Re Greene and Borins, the Ontario Divisional Court held that
each case should be examined and a determination made upon consideration of the following:

The question which must be asked and answered is "Does the matter to be voted upon have a potential to affect
the pecuniary interest of the municipal counsellor?" (sic) It is of no consequence...

what the nature of the effect (sic) might be - for his betterment or otherwise - as long as it may be seen by the
public to affect that pecuniary interest.

Nor is it of any consequence how the vote was cast, the outcome of the vote, or the motive of the municipal
official. The very purpose of the statute is to prohibit any vote by one who has a pecuniary interest in the matter
to be considered and voted upon.11

(not my emphasis)

11 As was held in Elliott, and as now set out in the provisions of Section 4(j) of the current Municipal Conflict of
Interest Act, in order to fall within the exemption of disqualification, the pecuniary interest of the council member that
is in issue must be common with that of electors generally. The statutory provisions being considered in the within
matter do nothing more than confirm the historic common law, as stated in Elliott, that a member of council is not
disqualified from voting on a measure merely because he or she possesses a pecuniary interest in common with other
ratepayers. Such circumstances amount to an issue of degree and do not give rise to disqualification. In other words,
if the pecuniary interest of the council member is different in kind from that of electors generally, the matter is at an
end and the council member is disqualified and cannot participate in or vote on the issue. The provisions of Section 5
of the Municipal Conflict of Interest Act would then be satisfied.

12 One example of the application of the principle of interest in kind as opposed to degree is found in Re Greene.
In that case the court held that because a council member's property was of such a physical size and location, it
readily lent itself to redevelopment giving rise to a pecuniary interest, "clearly distinguished from the interests of

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individual homeowners in the area". 12 The council member's interest was therefore found to be different in kind
from that of electors generally.

13 However, as the authorities and Section 4(j) of the current Municipal Conflict of Interest Act clearly establish,
if the council member has a pecuniary interest in an issue which is an interest that is common to electors generally,
the council member may participate and vote on the issue even if the member's degree of pecuniary interest differs
from that of electors generally.

14 On this issue, the Interested Parties argue that the term "electors generally" means "all electors" within the area
subject of the dispute. With respect, I disagree with the submission.

15 Section 1 of the Municipal Conflict of Interest Act provides the following definition:

interest in common with electors generally" means a pecuniary interest in common with the electors within
the area of jurisdiction and, where the matter under consideration affects only part of the area of jurisdiction,
means a pecuniary interest in common with the electors within that part...

16 This definition must be read together with Section 4(j) in order to ascertain which electors the legislature intended
to be regarded when considering the issue of disqualification. If the legislature had intended that the provisions were
to include "all the electors" it would have said so. Rather, Section 4(j) specifically provides, "with electors generally",
thereby qualifying which electors are to be regarded when considering an exemption from disqualification. The
word "generally" used in Section 4(j) indicates to me that the electors to be regarded, when applying the section, are
to be of a certain class or order. 14 It is apparent to me that the authorities, together with the language and intended
general purpose of the Municipal Conflict of Interest Act, establish that the class or order must be those electors
in the area in question who are "affected" by the matter. It is those affected electors that are to be regarded when
considering the issue of conflict of interest and not necessarily all the electors. It may very well be that in some cases
it will not be all the electors in a given area that is the subject of the matter that will be affected by it. An example of
this might be the situation where a municipal council is considering various improvements in a defined area consisting
of several square blocks. If council were considering road improvements on one street within the area but not the others,
surely it is only those electors affected by the road improvement who would be regarded in determining any pecuniary
interest they might have with that of a member of council and not all electors in the entire area.

17 In the case of Stewart v. City of Yorkton15 it was held that an interest in common of the same kind, but different
in degree, with a segment of the residents of a municipality, as opposed to all the residents of the municipality, does
not disqualify the member from voting. In Stewart the court held that council members were not disqualified after
finding that the mayor and councillors had a pecuniary interest with all other managers and businesses in the area
governed by the by-law in issue.

18 Moreover, the issue is not whether the electors of an area agree or disagree with the matter subject of the concern.
It is whether or not they are affected by the matter.

19 It is not the law that a member of council is disqualified from voting simply because he or she, as an elector, is
affected by, or has an interest in, a matter common with other electors of the municipality or area.

14      Councillor Sainsbury has no different pecuniary interest in the water issue and potential levies than do the residents
of the other 1400 residences. In the nuanced case by case analysis described by LaForme J., I find that such pecuniary
interest as Councillor Sainsbury has in the issue is an interest in common with a large segment of electors generally. I
find she falls within the statutorily defined exemption.

15      A second exception under section 4 is also relevant:

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(k) by reason only of an interest of the member which is so remote or insignificant in its nature that it cannot
reasonably be regarded as likely to influence the member.

16      In fact, it is now known that any levy that might result from this water issue on the residents, including Councillor
Sainsbury, is likely quite insignificant. As the reports have come in and the issue developed, the evidence suggests the
levy will not be a concern. In the fall of 2017 Councillor Sainsbury expressed concern for the residents on fixed incomes.

17      If applied today I would find that this exception would apply to Councillor Sainsbury but it does not assist to
excuse Councillor Sainsbury in the fall of 2017 because the insignificance could not then be known.

18      The Applicant argues that she declared a conflict of interest and cannot resile from that, citing as authority a
passage in Ferri v. Ontario (Ministry of Attorney General), 2015 ONCA 683 (Ont. C.A.) :

12 In the present case it is unnecessary to determine whether the appellant has a pecuniary interest in the Di
Benedetto Appeal because the appellant conceded on the application that Steven Ferri has an indirect pecuniary
interest in the outcome of the Di Benedetto Appeal. An indirect interest is defined in s. 2 of the MCIA and includes
a matter in which the councillor is "a partner of a person or is in the employment of a person or body that has a
pecuniary interest in the matter."

13 Having made this concession on the application, the appellant cannot resile from it on this appeal. Although
the application judge did not explicitly rely on the concession in reaching his conclusion that Steven Ferri has a
pecuniary interest, his analysis was conducted in the context of the concession. In any event, for the reasons discussed
below, I am of the view that any pecuniary interest is so remote or insignificant that it falls within the exception in
s. 4(k) and that, consequently, the appellant is not required to comply with the requirements of s. 5.

19      The Court was speaking there of an Appellant changing position on appeal. It has no application to Councillor
Sainsbury who took a cautious position in September 2017 on the circumstances known to her at the time, including the
letter of the developers' solicitor. The Applicant argues they relied on her having declared a conflict. I find that notion
to be entirely unsubstantiated.

20      So, on my finding that Councillor Sainsbury is, by reason of her pecuniary interest being in common with electors
generally, within an exception to the application of section 5, that ends the matter.

21      However, if I am wrong and she does have a conflict, I go on to examine her conduct in speaking to two councillors
before the meeting at which she declared a conflict and took no further part.

22      The wording of s 5(1)(c) is very broad: "shall not attempt in any way whether before, during or after the meeting to
influence the voting on any such question." Before the meeting where she declared a conflict she expressed her concerns
on the telephone to councillors.

23      The Applicant asserts this was intentional misconduct to influence their votes.

24      In each case Councillor Sainsbury first indicated to the councillors that she was going to declare herself in conflict.
She had not been careless in looking into whether she had a conflict. She obtained a legal opinion which she knew had
to be unofficial. She intended to be cautious and declare a conflict notwithstanding.

25      In speaking to the two councillors she misunderstood that she could express her concerns before she declared her
conflict at the meeting. She raised concerns relating to residents, not herself, and she raised other projects she thought
should have priority. The section is broad enough to make any such expression of concern dangerously close to the line
even though the matter was early in the process, no report was yet in from staff and a vote a long way off.

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26      Certainly, by expressing concern, Councillor Sainsbury was trying to provide information that might influence
the approach the councillors took to the matter but I reject, as inconsistent with her attentiveness to the possibility she
was in conflict and her cautious declaration, the assertion that she was intentionally engaging in misconduct to influence
their votes.

27      The powers given to a court who finds breach of section 5(1)(c) include:

(2) WHERE THE JUDGE DETERMINES THAT A MEMBER ....has contravened subsection 5 (1), (2) or (3), if
the judge determines that the contravention was committed through inadvertence or by reason of error in judgment,
the member is not subject to having his or her seat declared vacant....

28      If I am wrong in my finding that she was within an exception, I look to Councillor Sainsbury's conduct in speaking
to the councillors as no more than an error in judgment that not only does not require her removal (which the Applicant
has not sought) nor sanction by rebuke.

29      Her expressions of concern for residents and for other projects were made in good faith. She withdrew from
participation in good faith. She acted with more caution than the legal opinion she had sought out in good faith said
she must.

30      I would intend no exercise of the powers given a court where a breach is found on the facts.

31      The Application is dismissed.

32      The parties may address costs, if they cannot agree, by written submissions of no more than 2 pages together with
a Bill of costs and any offers, delivered to Patricia Haza my judicial secretary in Barrie:

Respondent by June 29;

Applicant by July 13

Reply by July 20.

Application dismissed.

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