Summary of Dupont v Port Coquitlam (City), 2021 BCSC 728 – The One Tree to Rule them All

community

Councillor Laura Dupont brought a petition for judicial review to quash a resolution of Council of the City of Port Coquitlam (“Council”) that declared she disclosed confidential information in breach of the Community Charter, SBC c 26 (“Community Charter”) and her duties as a Council Member (the “Resolution”). Council formally censured her, imposed restrictions on her access to confidential materials, and removed her from certain committees.

The Root Cause

In 2019, the City of Port Coquitlam was engaged in a series of closed discussions pursuant to s. 90 of the Community Charter for the purpose of evaluating potential development of a City-owned piece of land located at 2251 McAllister Avenue (the “Site”). Councillor Dupont expressed concerns about the preservation of a specific mature Deodar cedar tree (the “Tree”). She shared information about the proposed development of the Site on various occasions. Specifically, Councillor Dupont shared information during an in-person meeting that included a person who was not attending in any official capacity for the City, and forwarded two e-mails related to the development of the Site and the Tree to members of the community. This information leak was subsequently discovered by Council.

Council retained an investigator to prepare an investigative report which found that Councillor Dupont was the source of these breaches in contradiction to the confidentiality provisions in s. 117 of the Community Charter. The findings of this investigative report were endorsed by Council, and Councillor Dupont was subject to censure and sanctions.

Standard of Review

Madam Justice Marzari held that Council’s authority to impose censure and sanctions were reviewable on a reasonableness standard in accordance with the recent Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].

Council was therefore entitled to deference with respect to its interpretation of s. 90 and s. 117 of the Community Charter, whether a particular disclosure constituted a breach of the duty of confidentiality, and with respect to determining whether it had authority to pass resolutions of censure and sanction.

Authority of Council to Censure or Sanction its Members

Respecting the authority of an elected council to censure and sanction one of its members, the Court held that Council’s decision was not only reasonable, but that it was also correct in concluding that it had that authority.

As stated by Madam Justice Marzari at paragraph 28 of the Court’s reasons,” [t]he authority to set the procedures for access to confidential materials arises from Council’s express authority to govern its own internal procedures.” Sections 4 and 114 of the Community Charter provide broad authority for municipalities to control their processes. Typically, issues with performance are left for the ballot box. However, where problematic behaviour arises, the courts have affirmed that councils and boards are entitled to motions of censure to express disapproval of a member’s unlawful or unprofessional conduct, including breaching confidentiality requirements under the Community Charter. The Court also held that local government councils have the authority to remove discretionary appointments as it is inherent in their authority to make such appointments.

Reasons by Council in Resolution were Sufficient

A review for reasonableness pursuant to Vavilov requires the reviewing court to pay attention to the reasons as articulated by the decision-maker, and consider whether the reasons adequately justify the outcome through a “coherent and rational chain of analysis … that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85.

The Resolution itself was the starting point for review. Following the reasoning in Vavilov, the Court was required to look at the record and context to determine whether the reasons for the Resolution were reasonably intelligible, transparent and justified. In so considering, the Court found the combination of the Resolution, the detailed investigative report and the reasoning it adopted provided a robust set of reasons that actually exceeded what would ordinarily be expected or required of a municipal council in these types of circumstances. Council had properly engaged in deliberations about the investigative report and voted whether to endorse the conclusions in that report. The Court also held that Council did not have to engage in an explicit rejection of the arguments made by Councillor Dupont before Council. Rather, in adopting the Resolution that it did, it was sufficiently implicit that Council was not swayed by Councillor Dupont’s submissions.

Council’s Decision in Finding a Breach of Confidentiality was Reasonable

Madam Justice Marzari endorsed and adopted the reasons of Mr. Justice Branch in an earlier interlocutory application with regards to whether Councillor Dupont breached her confidentiality obligations. Councillor Dupont should have been aware topics related to the Site development were confidential as all prior meetings about the site had been in camera. Moreover, confidentiality was not just confined to the meetings themselves. The Court found that the Community Charter contemplated “confidential information” obtained prior to and mutually exclusive from closed meetings. The sharing of information that discloses the contents of confidential records, even without the disclosure of the record itself, may reasonably be held to be a breach of s. 117 of the Community Charter. Although Councillor Dupont did not disclose the preliminary site plans or other records that had been discussed in closed session of council, she breached her confidentiality obligations when she disclosed the content of those plans.

Reasonableness of Censure and Sanctions

In light of the full record before Council in this regard, Council’s decision to censure Councillor Dupont, impose limitations on Councillor Dupont’s access to confidential records, and to remove Councillor Dupont from various discretionary roles and committees was reasonable.

If you have any questions, please contact Thea Hoogstraten or Melody Cheung.

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