COUNCILLOR BIAS, AND CONFLICTS OF INTEREST

What is bias?
Bias is a preference or interest in a matter such that the impartial judgement of the decision maker is affected. Councillor bias is an issue most councillors will encounter. It is a different legal principle from conflicts of interest and bias or judicial proceedings.

Councillor bias
Councillor bias is an opinion on an issue by a councillor which suggests that she may have formed an opinion prior to deciding how to deal with the matter. For an elected official, there is a great deal of latitude for bias. Officials running for office are expected to hold predispositions on many issues, and the electorate considers such biases when voting. The Ontario High Court of Justice, in Re Cadillac Development Corp. Ltd. and City of Toronto(1) said:

...the elected representatives are expected to form views as to matters of public policy ... Indeed, they will have been elected ... .to give effect to public views as to policies to be effected in the community ... They are not judges but legislators from whom the ultimate recourse is to the electorate.

In December of 1990, Canada's Supreme Court released two concurrent decisions which discussed conflicts of interest and bias in a councillor(2). Justice Sopinka noted:

I would distinguish between a case of partiality by reason of prejudgment on the one hand and by reason of personal interest on the other. It is apparent ... that some degree of prejudgment is inherent in the role of councillor. That is not the case in respect of interest...(3).

If a councillor has a pecuniary interest in a matter, then he is automatically disqualified. If a councillor, however, carries an attitudinal bias, then she is not automatically disqualified. It isn't unusual for a councillor to have some interest in a matter before him. Consequently, the court adopted the "amenable to persuasion" test:

...the test that is consistent with the functions of a councillor and enables her to carry out political and legislative duties ... is one requiring that the objectors or supporters be heard by members of councils who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the adopted view, would be futile. Statements ... will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged ... keeping mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of council in all matters that are decided at public meetings at which objectors are heard(4).

A party alleging bias by a councillor must prove that representation would be "futile" or that the councillor's opinion is "incapable of change." The "amenable to persuasion" test was criticized as placing too onerous a burden on a party. In Save Richard Farmland(5), La Forest J., observes:

There is no gauging the "openness'" of a person's mind, and indeed it would be pointless to attempt to do so ... it seems to me that if this court is to adopt the "amenable to persuasion" test, this is bound to lead to a lot of posturing. Politicians who have campaigned on a given issue, and owe their election to it, can be expected to make solemn pronouncements ... That they remain "amenable to persuasion" if truly convincing argument is presented to them. There would seem to be little to be gained by enforcing a campaign of "lip-service" to this ideal(6).

Conflicts of Interest
Conflicts of interest are determined by both the common law and the Municipal Council Conflict of Interest Act(7). They are concerned with a councillor's direct or indirect pecuniary interest in a matter before council, he is required to disclose the nature or the interest, withdraw from the meeting without voting or participating, and refrain from trying to influence the matter(8).

A recent Manitoba Court of Appeal decision in Arbez v. Johnson shows why councillors should be very careful in deciding a conflict of interest. Ms. Johnson was a councillor and operated a store in the municipality. A competitor who was considering purchasing the villages fire hall contended that Ms. Johnson, as a rival business owner, was in a conflict of interest and argued that she should withdraw from the meeting considering the sale. Ms. Johnson initially withdrew from the meeting which considered the offer to purchase. She obtained legal advice and then took part in discussions on the sale of the fire hall at a subsequent meeting where a resolution was passed. She voted against the sale of the land. At trial, it was held that Ms. Johnson had no pecuniary interest. The Manitoba Court of Appeal held otherwise, saying that the potential to affect the pecuniary interest of a councillor was sufficient to be a conflict of interest. Ms. Johnson's seat was declared vacant.

The Law allows councillors to maintain opinions on matters, however they must never be such that the opinions can never be displaced. The Law does not allow for councillors to have any form of pecuniary interest in a matter to be decided. Given the serious consequences of a conflict under the Municipal Council Conflict of Interest Act and the broad definition of a conflict as found by the Manitoba Court of Appeal, councillors should be very careful of potential situations and immediately seek legal advice.

1. (1973), 39 DLR (3d) 188 at 210.
2. Old St. Boniface Residents Assn. v. Winnipeg City (1990), 75 DLR (4th) 385 and Save Richmond Farms v.Richmond (Twp) (1990) 75 DLR (4th) 425.
3. Ibid, at 408 (Old St. Boniface).
4. Ibid, at 408 (Old St. Boniface).
5. Supra, Note 2.
6. Supra, Note 2, at 430 )Save Richmond Farmland).
7. RSM 1987, c.M255.
8. Section 5(1).
9. (1984), 15 DLR (4th) 48 at 62.