Court finds Brampton council decision to pre-emptively fill vacant seat illegal

The Ontario Superior Court of Justice has found that a Brampton City Council decision to pre-emptively fill a seat left vacant after the provincial election was illegal.

According to court documents obtained by CP24, council met on May 31 to appoint a replacement for Charmaine Williams, then-representative for wards 7 and 8, in the event she was elected MPP for Brampton Centre later in the week.

At the time, council debated the legality of conditionally appointing a member to council before a vacancy was declared, the documents said. This person would fill the seat until the next municipal election took place.

The motion passed although five of 11 people, including Mayor Patrick Brown, voted against it. Williams took part in the vote and threw her support behind the appointment.

In a news release issued Tuesday, those who voted against the motion argue that the other six councillors “made backroom deals” in choosing Elaine Moore to replace Williams. Moore, this group of councillors say, has “zero connections to wards 7 and 8 and is best known for her opposition to the LRT as a past councillor and supporting a religious discriminatory policy as a former school trustee.”

The councillors accused the other six representatives of maintaining a disruptive stranglehold on council, at the expense of residents" and added that members of the public were denied an opportunity to apply for the position or provide input.

“Fearing repercussions of the illegal motion on future decisions of Council and believing it was his responsibility as a councillor to protect the city and taxpayers, Councillor [Harkirat] Singh took it upon himself to initiate legal proceedings to stop the appointment so the city could be protected from future legal challenges, potentially saving taxpayers millions of dollars,” the release said.

Singh had previously tried to put motions forward to seek legal advice on making the appointment, but they were voted down.

In the court decision, Justice Michael T. Doi notes that council had not yet declared the seat vacant when it appointed a replacement councillor and that Williams had not yet resigned from the position.

Once a seat is vacant, the municipality must appoint a person to fill it within 60 days or pass a by-law requiring a by-election take place, unless an election is already scheduled within 90 days of the vacancy being declared

“From the clear and specific language in ss. 262(1) and 263(5)(1) of the Municipal Act for filling vacancies, and applying the modern approach to statutory interpretation, I am satisfied that municipal council can only proceed to appoint a person to fill a vacant office after it has declared the vacancy at its next meeting after the vacancy has occurred,” Doi wrote.

The design of this statutory mechanism wisely ensures that the incumbent member of council whose departure creates the vacancy will not participate in the process for determining who will be appointed to fill a vacancy on council under ss. 263(1) and 263(5)(1)(i) of the Municipal Act, respectively. Given the collective interplay between all of these provisions, the design of the mechanism is clearly intended to maintain the integrity of the process for replacing members on council by excluding departing incumbents from the process to avoid any potential for mischief or the appearance of impropriety.”

“I hasten to add that neither party is alleging any bad faith by anyone in this matter, and I am making no findings of any deliberate misconduct.”

The six councillors have been ordered to pay a combined $20,000 to the applicant.

COURT DECISION ‘VINDICATES’ COUNCILLORS, MAYOR SAYS

Speaking at a news conference on Tuesday, the mayor said the decision by select council members to fill the seat pre-emptively was an “attempt to seize control of the city” and was “clearly illegal.”

“I never thought that while I was sharing a vision for the country, something like this would be attempted,” he said.

Brown has been vying for a position as Leader of the Conservative Party of Canada for the last few months and was recently disqualified amid allegations related to the financing rules in the Canada Elections Act.

Brown’s campaign is currently appealing the decision.

The same week, five Brampton councillors—all of whom voted to fill the vacant seat pre-emptively—published a letter saying that Brown's time in office "needs to end.”

"While the Conservative Party of Canada was investigating serious allegations of election fraud that led to his disqualification, a majority group of Brampton councillors initiated forensic investigations into allegations of financial irregularities, nepotism and possible backroom contract irregularities under Patrick Brown’s failed leadership. This demonstrates a clear and alarming pattern of behaviour," the councillors wrote in the letter.

The authors of the letter, which include Pat Fortini, Martin Medeiros, Jeff Bowman, Gurpreet Singh Dhillon and Doug Whillans, argued that city business has been in a “standstill” as Brown’s attention was on federal politics.

Brown has said that he has been present to attend to city issues during the leadership race and that his absence from city council meetings was due to the legal issue surrounding the councillor appointment.

“We were attacked for not attending meetings, but we knew that if we did it would cause massive exposure to the city,” Brown said Tuesday. “Our city solicitor said very clearly that any law any bill passed by an incorrect composition of counsel could be successfully challenged.”

“It vindicates the decision not to attend those two council meetings that were missed.”

CALLS FOR RCMP TO PROBE INVESTIGATIONS ALLEGEDLY BLOCKED BY MAYOR

Shortly after the news conference ended, councillors Fortina, Medeiros, Bowman and Dhillon released a statement calling for the RCMP and the province to investigate Brown’s financial dealings inside city hall, alleging the mayor attempted to “run out the clock on a series of investigations ordered by Brampton City Council.

“Brown does not want the work of independent investigators to come forward. They were hired to probe numerous contracts and “questionable” financial arrangement with associates of Brown, which have already come to light since a majority group of councillors directed staff for information,” the councillors said.

The councillors allege that at least one person in Brown’s inner circle who worked on his federal campaign also worked for a firm that received more than $500,000 from city hall.

“We need an outside authority, not controlled by Brown, to conduct a thorough investigation,” the councillors wrote in the release. “On behalf of the residents of Brampton, we are calling on the RCMP to undertake a full investigation into these serious allegations; an investigation which Brown has blocked at the municipal level.”

The allegations have not been independently confirmed.