Court Declines to Disqualify Councillor who Breached Disclosure Bylaw

A recent decision of the Saskatchewan Court of Queen’s Bench provides guidance for municipal councils when a councillor fails to disclose financial information on time.

In Hill v Saskatoon (City), the Saskatchewan Court of Queen’s Bench allowed Saskatoon City Councillor, Darren Hill, to maintain his seat on council despite his late disclosure of financial information from the November 2020 municipal election.

Background on Disclosing Election Expenditures

City Bylaw No. 8491, The Campaign Disclosure and Spending Limits Bylaw, 2006 (the “Bylaw”), requires the Returning Officer to disclose financial information regarding election contributions and expenditures within three months of an election. Following the November 2020 municipal election in Saskatoon, Darren Hill (“Hill”) won Ward 1. Hill filed incomplete disclosure forms 16 days after the deadline, ultimately filing a completed disclosure form sometime later.

Failure to file a disclosure form on time is a breach of the Bylaw and cause for disqualification from City Council under The Cities Act (the “Act”). The Act requires a member of City Council who is disqualified to resign immediately, however, Hill did not resign his seat.

Following Hill’s decision to not resign, the City applied to the Court for an order to determine if the law disqualifies Hill from sitting as a councillor.

Decision of the Saskatchewan Court of Queen’s Bench

In the decision, the Court was critical of the fact that City Council chose to apply to the court instead of making the disqualification decision itself. The decision references an earlier case where City Council took it upon itself to reprimand a councillor for disclosing confidential information. However, the Court acknowledged that application to the Court was a viable option for City Council, but emphasized the City Council had the discretion to make the disqualification decision itself by choosing not to bring the application.

Notably, Hill admitted that he had contravened the Bylaw by failing to file his disclosure statements on time. However, the Court found that the Act contains discretion in relation to applications disqualifying a councillor. Therefore, on such an application, the Court may make a number of orders in relation to the councillor’s status on council, including:

  • declaring the councillor disqualified and the seat on council vacant;
  • declaring the councillor able to remain on council;
  • declaring the councillor eligible for nomination in the next election;
  • dismissing the city’s application; and
  • if the councillor’s breach was through inadvertence or by reason of an honest mistake, dismissing the city’s application.

When faced with an application to disqualify a councillor, the Court held that it must consider six factors to guide its exercise of discretion:

  1. the perceived effects of the contravention, not the actual effect;
  2. any financial loss to the City or financial gain to the councillor;
  3. whether the contravention was misleading, trifling or de minimus;
  4. whether the councillor acted in good or bad faith;
  5. whether the action of the councillor was deliberate;
  6. a balance of the contravention with the reputational impacts on the councillor.

Following a review of each factor, the Court found that Hill’s breach was the result of inadvertence and  the Court dismissed the city’s application. In coming to this conclusion, the Court considered:

  • Hill’s mental and physical health struggles in the lead up to the filing deadline,
  • that there were no ill effects brought on the City or the electorate,
  • that Hill had not acted in bad faith, and
  • his late disclosure did not appear to be deliberate.

Finally, the Court considered the balance of the contravention with the reputational harm to Hill. The Court found that Hill’s disclosure of his health concerns put him in a vulnerable position and the damage to his personal and professional reputation far outweighed the actual breach.

Implications of the Court’s Decision

One implication of this decision is that city and municipal councils have the discretion to address contraventions of bylaws by councillors internally. While the legislation appears to only leave recourse to the courts, council may decide not to take that step and discipline the councillor through its own processes. In deciding whether to bring a matter before the courts, this decision outlines the factors council ought to take into consideration before taking that step. No two cases are alike, and the application of the law to the facts will vary in every case.

If you have questions about how this case may affect your city or municipality, we encourage you to reach out to one of our lawyers in our municipal practice group.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.