Foster v. VanLeeuwen, 2021 ONMIC 3

Township of Centre Wellington INTEGRITY COMMISSIONER, Guy Giorno

Citation: Foster v. VanLeeuwen, 2021 ONMIC 3 Date: March 24, 2021

REASONS FOR DECISION

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council’s consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision. No council decision. Because this is an inquiry under the Municipal Council of Interest Act, the Integrity Commissioner’s decision is not required to be filed with the municipal council.

TABLE OF CONTENTS

Context 3 The Application 3 Decision 3 Background 4 Process Followed 7 Analysis and Findings 7 (A) Did Councillor VanLeeuwen have a pecuniary interest in the debate and decision-making related to Bridge 4-WG? 8 (B) If there was a pecuniary interest, was it remote and insignificant under clause 4(k) of the MCIA? 12 (C) Should I make an application to a judge? 13 Conclusion 13 Publication 14

Context

1Among their responsibilities, municipal Integrity Commissioners in Ontario conduct inquiries into applications alleging that council members or members of local boards have contravened the Municipal Conflict of Interest Act. At the end of such an inquiry, the Integrity Commissioner shall decide whether to apply to a judge under section 8 of the Municipal Conflict of Interest Act for a determination as to whether the member has contravened section 5, 5.1, or 5.2 of that Act, and shall publish reasons for the decision. Such decision is not subject to approval of the municipal council and does not take the form of a recommendation to council. There is, therefore, no municipal council resolution necessary to give effect to the decision.

2Councillor Robert Foster (Applicant) has applied for an inquiry into whether Councillor Steven VanLeeuwen (Respondent) contravened the Municipal Conflict of Interest Act by participating in decision making on whether to designate Bridge 4-WG as a property of cultural heritage value or interest under the Ontario Heritage Act.

The Application

3Section 223.4.1 of the Municipal Act allows an elector or a person demonstrably acting in the public interest to apply in writing to the Integrity Commissioner for an inquiry concerning an alleged contravention of section 5, 5.1, or 5.2 of the Municipal Conflict of Interest Act (MCIA) by a member of council or a member of a local board.

4The Applicant alleges that the Respondent contravened section 5 of the MCIA on June 29, 2020, by debating and then voting in relation to a recommendation of the Municipal Heritage Committee to designate Bridge 4-WG as property of cultural heritage value or interest under Part IV of the Ontario Heritage Act.

5Upon receiving the Application, I assigned it File #2 of 2020 (MCIA), and conducted an inquiry.

Decision

6Subsection 223.4.1(15) of the Municipal Act states that, upon completion of an inquiry, the Integrity Commissioner may, if the Integrity Commissioner considers it appropriate, apply to a judge under section 8 of the MCIA for a determination whether the member has contravened section 5, 5.1, or 5.2 of that Act.

7After considering the submissions of the parties, conducting an independent inquiry, and reviewing all the evidence, I have decided that I will not apply to a judge for a determination whether the Respondent has contravened section 5 of the MCIA.

8Subsection 223.4.1(17) of the Municipal Act requires me to publish written reasons for my decision. These are my reasons.

Background

9At its June 29 meeting, Council considered a recommendation by the Township of Centre Wellington Municipal Heritage Committee to designate Bridge 4-WG as heritage property. (The recommendation also covered Bridge 24-WG but the application and this determination focus on Bridge 4-WG, which is located in the vicinity of Councillor VanLeeuwen’s home and businesses.) Discussion, debate and voting on the recommendation are recorded in the Council Minutes.

10Council considered two reports in relation to the Bridge 4-WG at the June 29 meeting.

11The first report, Report IS2020-15, was on the agenda as item 12.2. It was a Class Environmental Assessment Update report from Colin Baker, Managing Director of Infrastructure Services. Mr. Baker reviewed the report, gave an overview of Bridge 4-WG, provided commentary on local concerns about flooding, and responded to questions from Council Members. The Report notes that, on February 11, 2020, the Heritage Committee recommended designating Bridge 4-WG under Part IV of the Ontario Heritage Act, and that a separate report on that recommendation was on the Council meeting agenda.

12Council accepted Report IS2020-15 for information. Councillor VanLeeuwen seconded the motion to accept the report.

13The second report, Report PLN2020-15, was on the Agenda as item 12.3. It was prepared for Council by Mariana Iglesias, Senior Planner, and contained the following recommendation of the Heritage Committee:

THAT Heritage Centre Wellington recommends Council state its intention to designate Bridges 24-WG and 4-WG as having cultural heritage value under part 4 of the Ontario Heritage Act.

AND THAT, should Council choose not to designate Bridge 24-WG or Bridge 4-WG, Heritage Centre Wellington would be consulted in sympathetic design and commemorative strategy process.

14Report PLN2020-15 noted the timing and dates of the Heritage Impact Assessment and the Heritage Committee’s discussion and recommendation. That Report included two options:

Recommendation:

THAT the Council of the Township of Centre Wellington approve one of the following recommendations:

Option A

THAT the Council of the Township of Centre Wellington, on recommendation of its Municipal Heritage Committee, state an intention to designate Bridges 24-WG and 4-WG, as properties of cultural heritage value and/or interest under Part 4 of the Ontario Heritage Act.

or

Option B

THAT the Council of the Township of Centre Wellington, after considering the recommendation of its Municipal Heritage Committee for designation, not state an intention to designate Bridges 24-WG and 4-WG, as properties of cultural heritage value and/or interest under Part 4 of the Ontario Heritage Act;

AND THAT Heritage Centre Wellington be consulted on the sympathetic design and commemorative strategy process for the replacement of Bridges 24-WG and 4-WG.

15Councillor VanLeeuwen owns real estate in the immediate vicinity of Bridge 4-WG. He also operates five businesses within less than a half a kilometre from that bridge. As Councillor Foster points out, several of these businesses involve the sale or servicing of sizable equipment and machinery, and customers frequently tow heavy equipment, on trailers, to and from these businesses.

16The significance of Council’s debate and decision on this recommendation is that if Bridge 4-WG were made “designated property” under the Ontario Heritage Act, then it would be subject to restrictions on demolition.¹ It follows that the bridge would be more likely to be have been preserved and rehabilitated as opposed to being demolished and replaced in accordance with the Township’s Asset Management Plan. According to Councillor Foster, Councillor VanLeeuwen stands to benefit from replacement of Bridge 4-WG since a stronger bridge would provide his customers with a direct and efficient route to tow heavy machinery and equipment to and from his business.

17Councillor VanLeeuwen is also a member of the Township’s Heritage Committee.² When debating the options before Council at the June 29 meeting, Councillor VanLeeuwen spoke about the work of the Heritage Committee in relation to Bridge 4-WG. Although the Heritage Committee previously recommended that the bridge be designated as heritage property, that designation had not yet occurred. Councillor VanLeeuwen explained that the Heritage Committee’s mandate is specific to heritage attributes and considerations, but that Council must consider a broader set of criteria, including weighing the cost of rehabilitation against the cost of replacement.

18At the same meeting, Councillor Foster spoke forcefully about the significant heritage value of Bridge 4-WG, and others like it in the community. He explained that Bridge 4-WG was built in 1923 by Charles Mattaini, an Italian-Canadian immigrant who built close to 70 bridges in the area, as well as over 20 bridges in other parts of Canada. He noted that only a few such bridges (known as bowstring bridges³) are left in Wellington County, and this was an opportunity to preserve one of these important structures. He moved to refer the recommendation to the Heritage Committee for further discussion. That motion was defeated.

19Council then debated the costs associated with rehabilitating and replacing the bridge. This included a discussion about the comparative costs of rehabilitation and replacement, as well as about striking a balance between maintaining heritage structures and having infrastructure suitable to meet the needs of the local farming community.

20Councillor Foster stated that Councillor VanLeeuwen lives in proximity to the bridge and therefore has an interest in its replacement. He asked Councillor VanLeeuwen whether he “wished to declare a conflict of interest.”⁴ As the presiding officer of the meeting, Mayor Linton ruled the comment out of order.

21Councillor VanLeeuwen nevertheless responded and stated that the bridge is not adjacent to his property and that his businesses are directly on the busy County road, meaning his customers do not use Bridge 4-WG, and he has no personal or business interest in it. He did not disclose a pecuniary interest under the MCIA.

22The following motion was passed on a 4-3 vote, with Councillor VanLeeuwen voting in favour and Councillor Foster voting against it:

THAT the Council of the Township of Centre Wellington, after considering the recommendation of its Municipal Heritage Committee for designation, not state an intention to designate Bridges 24-WG and 4-WG, as properties of cultural heritage value and/or interest under Part 4 of the Ontario Heritage Act;

AND THAT Heritage Centre Wellington be consulted on the sympathetic design and commemorative strategy process for the replacement of Bridges 24-WG and 4-WG.

23At this meeting, no Councillor disclosed a pecuniary interest.

Process Followed

24In receiving and investigating applications under the MCIA, I follow a process that ensures fairness to both Applicants and Respondents. This is a full and fair process that at the same time is efficient and reasonable taking into account the circumstances of each case.

25Councillor Foster and Councillor VanLeeuwen have had equal opportunities to make submissions over the course of the inquiry. In addition, each party was given the chance to participate in an oral interview by telephone, and each party was given the chance to review the other’s communications with me.

26On December 7, I issued a Notice of Inquiry to both parties. Councillor VanLeeuwen responded on December 7. Councillor Foster replied with multiple submissions, including maps, on January 14. Councillor VanLeeuwen then replied on January 29, and included maps of his own.

27I issued a delegation under subsection 223.3(3) of the Municipal Act to another lawyer in my office, authorizing him to conduct interviews. He interviewed the parties and witnesses, and also obtained information and data from the Township that I have considered in completing the inquiry and making this determination.

28On his own initiative, after his interview, Councillor Foster provided an additional, written submission.

29The documentation in this inquiry totals more than 950 pages, including the submissions of the parties, the maps, and the supporting documents obtained from the Township. These are in addition to multiple oral interviews and a review of Council meeting footage. Although these reasons do not specifically mention all of the material, I have reviewed and considered it all in making a determination.

Analysis and Findings

30I have considered the following issues:

(A) Did Councillor VanLeeuwen have a pecuniary interest in debate and decision-making related to Bridge 4-WG?

(B) If yes, is the pecuniary interest remote and insignificant under clause 4(k) of the MCIA?

(C) Should I make an application to a judge?

(A) Did Councillor VanLeeuwen have a pecuniary interest in the debate and decision-making related to Bridge 4-WG?

31No. I conclude, on the standard of a balance of probabilities, that Councillor VanLeeuwen did not have a pecuniary interest in the debate and decision-making related to Bridge 4-WG.

32Both parties presented detailed arguments on this question. In the paragraphs that follow, I set out the positions of the parties and then explain my finding.

Applicant’s Position

33Councillor Foster furnished detailed arguments outlining why Councillor VanLeeuwen has a pecuniary interest in the bridge. He provided maps and descriptions of the community in order to demonstrate, based on traffic patterns through, from, and to the community, the significance of Bridge 4-WG to Councillor VanLeeuwen and his businesses.

34To protect the privacy of Councillor VanLeeuwen, his family, and his employees, I am deliberately avoiding reproducing the maps or the detailed descriptions of the locations of the Councillor’s home and businesses. I have reviewed all of the information and maps Councillor Foster provided in his written submissions, and these facts were subsequently verified over the course of the inquiry. I have given all of this evidence due consideration and relied on it in making my findings.

35The Applicant’s position is that Councillor VanLeeuwen stands to “benefit both financially and personally” from the replacement of Bridge 4-WG since his home and businesses are in the immediate vicinity of the bridge (approximately 500 m from it).

36Because Councillor VanLeeuwen lives in close proximity to the bridge, the Applicant believes that replacing this bridge would increase the value of Councillor VanLeeuwen’s real estate, where his home and his businesses are located.

37With respect to the businesses, Councillor Foster believes that replacement of the bridge will facilitate customers’ travel to and from Councillor VanLeeuwen’s businesses. He submits this is especially the case because Councillor VanLeeuwen operates businesses that rent and repair heavy equipment and machinery. A replaced bridge with higher load capacity and improved physical characteristics would facilitate the movement of this machinery to and from the businesses. Councillor Foster notes, for example, that the current bridge is subject to weight restrictions due to its age and condition. He further estimates that the customers travelling to and from the businesses will frequently be trailering equipment, resulting in a Gross Vehicle Weight Rating in excess of 10,000 pounds, which would prevent the use of Bridge 4-WG absent its demolition and replacement. In an interview, Township staff with knowledge of the Bridge confirmed that Bridge 4-WG was subject to capacity restrictions consistent with those described by Councillor Foster.

38Further, and as discussed above, Councillor Foster explains that the significance of Bridge 4-WG cannot be fully appreciated without understanding how it fits into the broader transportation network within the community, including its connection to paved portions of local roads, its value as a safer route for travel, and its significance in accessing highways that facilitate access to the Greater Toronto Area. He argued that these facts “cannot be understated in a rural area where most residents have gravel roads only.”

39Councillor Foster also points to a “well-established history” of Council Members declaring conflicts of interest and abstaining from voting when they own properties in the vicinity of municipal projects. He provided numerous examples of current Council Members who declared a conflict in relation to local projects. He argues that, in light of this practice, Councillor VanLeeuwen ought to have been aware that his interest in Bridge 4-WG could be a live issue.

Respondent’s Position

40Councillor VanLeeuwen takes the position that he does not have any pecuniary interest in Bridge 4-WG, and therefore did not have to disclose an interest or abstain from voting at the June 29 meeting. I note that he clearly stated this position at the June 29 meeting when Councillor Foster raised the possibility of a conflict. Councillor VanLeeuwen has maintained that position throughout this inquiry.

41Councillor VanLeeuwen disputes a variety of the conclusions Councillor Foster asks me to draw about the bridge, noting the following:

• The bridge does not adjoin or touch his property.
• The bridge does not serve as an access road for his travel to and from main arterial roads.
• The bridge is more likely to provide access to rural residents into the rural community.
• Neither the presence of the bridge nor its physical characteristics will affect the value of his property.
• The businesses he operates are located directly on a paved county road and it is a “far stretch to claim that a bridge on the side road to the rural community would increase access to my business located on a main county road network.”

42In support of his argument, Councillor VanLeeuwen also provided maps identifying the locations of his home and businesses in relation to the bridge.

43He also stated, during his interview, that it was difficult to respond to the application because it does not contain a clear and concise statement of what benefit would allegedly accrue to him as a result of the reconstruction of the bridge.

44He argues that the allegations are based on assumptions and require a significant amount of speculation.

45Councillor VanLeeuwen also states that Councillor Foster’s claim of a “prima facie” case of breach of the MCIA tries improperly to place the burden of proof on the responding party. He argues that the Applicant has the burden of proving a pecuniary interest.

Key Facts and Finding

46Several key facts are not in dispute in this matter, such as the fact the Councillor VanLeeuwen owns property and businesses approximately 500 m from Bridge 4-WG.

47The parties disagree, however, on the significance of the bridge to traffic patterns within the community. Both furnished me with maps and other evidence to support their respective positions.

48I sought additional evidence related to the interests of both Councillor VanLeeuwen and the broader community in Bridge 4-WG.

49I find that that Bridge 4-WG is significant to the surrounding community.

50First, the Township’s Asset Management Plan is designed to ensure that finite resources for municipal infrastructure are directed first to projects of the highest priority. The data from the Township indicate that Bridge 4-WG was considered a priority because of its age, its physical condition, and its value to local traffic and emergency services, among other factors.

51Municipal infrastructure and budget documents further show that replacement of the bridge was considered a priority because the asset’s failure would increase “Response Time” for emergency vehicles and cause “Detour Length” for local residents. Both effects would be considerable given the Average Daily Traffic over the bridge.

52A witness called the bridge “pretty essential … critical infrastructure” to the local area. In particular, the witness said that farmers in the region rely on the bridge to access their fields and its absence would require a very significant and problematic detour by those residents. The witness’s evidence is consistent with debate at the June 29 meeting, in which several Council Members discussed the significance of Bridge 4-WG to the local farming community.

53The significance of Bridge 4-WG to the community does not, in and of itself, establish the presence of an interest that engages the MCIA. The interest must be specific to a Council Member.

54The MCIA only applies to a pecuniary interest. The Divisional Court has described a pecuniary interest as “a financial interest, an interest related to or involving money.”⁵

55Did Councillor VanLeeuwen have a pecuniary interest in the debate and decision-making with respect to the bridge? I approach this question based on the standard, established in judicial precedents, that a pecuniary interest must be real and present, and not speculative or remote.

56Words used by courts in Ontario to describe a pecuniary interest include actual,⁶ definable,⁷ and real.⁸ A pecuniary interest does not arise from speculation based on hypothetical circumstances.⁹

57A pecuniary interest must have crystalized by the time the matter is considered by Council or committee.¹⁰ Possible and potential future happenings do not amount to a pecuniary interest.¹¹

58I have considered the fact that Councillor VanLeeuwen operates several businesses in the immediate vicinity of the bridge. I accept, as Councillor Foster points out, that heavy equipment and machinery are transported on trailers to these businesses, and such transport requires suitable infrastructure. I have considered Councillor Foster’s position that:

it is likely foreseeable that replacing a one-lane, weight-restricted bridge would increase revenue to these businesses. By voting to replace the narrow one-lane, weight-restricted bridge with a heavier, wider, unrestricted, two-lane bridge, it is reasonable to conclude that Councillor VanLeeuwen knew or reasonably ought to have known that his businesses will experience increased revenue and profits for these five businesses owned by Councillor VanLeeuwen, all of which are heavily reliant on trucking and trailering heavy equipment … to and from the business. An improved route for clients and employees to get to Councillor VanLeeuwen’s businesses has an obvious and prima facie pecuniary benefit (res ipsa loquitor).¹²

59Councillor Foster also argues that demolishing and replacing the bridge would “improve transportation to his business on an exponential basis …” and would result in “improved access, improved traffic, improved profit margin [that] results in a clear pecuniary benefit …”

60He states that, “financial benefits would clearly accrue to Councillor VanLeeuwen, increasing the value of his home, increasing revenue to his businesses, resulting in the accrual of pecuniary and economic benefits to the Councillor.”

61While I understand Councillor Foster’s position that a pecuniary interest is involved, I do not believe that the facts establish a pecuniary interest as courts have interpreted the term. The facts do not establish that Councillor VanLeeuwen’s businesses will “experience increased revenue and profits,” to use Councillor Foster’s words. This conclusion requires speculation about what may happen in the future. It is hypothetical.

62I understand the Applicant’s prediction, but find no evidence to establish that additional traffic will pass by Councillor VanLeeuwen’s businesses as a result of the replacement of Bridge 4-WG. This is merely a possible, future happening. I cannot state that this outcome is reasonably foreseeable.

63I cannot find, according to the meaning given to the term by the courts, that a pecuniary interest of Councillor VanLeeuwen (including a pecuniary interest of his businesses) will be affected by the replacement of Bridge 4-WG.

64As a result, on a balance of probabilities standard, and based on all the evidence provided by the parties and obtained during the investigation, I find that Councillor VanLeeuwen did not possess a pecuniary interest in the decision on whether to designate Bridge 4-WG as a heritage asset.

65I add two observations. First, the MCIA does not distinguish between a decision that would positively affect and one that would negatively affect a Member’s pecuniary interest. Disclosure and recusal are required in either case. Second, how a Member votes on a matter (for or against) is likewise irrelevant.

(B) If there was a pecuniary interest, was it remote and insignificant under clause 4(k) of the MCIA?

66Though I have already found that a pecuniary interest did not exist, I have considered, in the alternative, whether an interest that does exist is exempt from the disclosure and recusal obligations.

67Section 4 of the MCIA sets out eleven exceptions to the requirement to disclose a pecuniary interest and withdraw from decision-making and voting. One exception is clause 4(k).

68The section 4 exceptions do not negate the existence of a pecuniary interest. Section 4 merely provides that, when an exception applies, the pecuniary interest does not need to be disclosed and the Member does not need to withdraw from decision-making, voting and attempting to influence others.

69Clause 4(k) says that the prohibition in section 5 of the MCIA does not apply to a pecuniary interest that a Member may have 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.”

70According to the Superior Court of Justice in Craig v. Ontario, remote means “having very little connection with or relationship to,” and insignificant means “lacking in importance.”¹³

71I have found that Councillor VanLeeuwen does not possess a pecuniary interest in the designation of Bridge 4-WG. If I am wrong, then I find that the pecuniary interest is both remote and insignificant.

72Any pecuniary interest is remote because any impact on Councillor VanLeeuwen and his businesses is distant, indirect, unpredictable, and uncertain. Any pecuniary interest is insignificant because it is not even quantifiable, and its likelihood is unknown.

73If Councillor VanLeeuwen did possess a pecuniary interest in the bridge, then it was exempt from disclosure under clause 4(k) of the MCIA.

(C) Should I make an application to a judge?

74No.

75Having found that Councillor VanLeeuwen did not possess a pecuniary interest in Bridge 4-WG at the time of discussion and debate at the June 29 meeting and, alternatively, that any pecuniary interest was remote and insignificant and therefore exempt from disclosure, I have no basis to apply to a judge.

Conclusion

76I will not apply to a judge under section 8 of the MCIA for a determination as to whether Councillor Steven VanLeeuwen contravened the MCIA on June 29.

77I add that the Application was not frivolous. The resulting inquiry raised a real issue requiring careful consideration, including a review of relevant case law and weighing the facts.

78As a result, I take this opportunity to remind Council Members that they must proceed with caution when taking part in decision-making and voting on matters affecting municipal infrastructure near their properties or businesses, or the properties or businesses of family members.

Publication

79The Municipal Act requires that after deciding whether or not to apply to a judge, the Integrity Commissioner shall publish written reasons for the decision. This decision will be published by providing it to the City to make public, and by posting on the free, online database as decision 2021 ONMIC 3.

80Subsection 223.5(2.3) of the Municipal Act states that I may disclose in these written reasons such information as in my opinion is necessary. All the content of these reasons is, in my opinion, necessary.

Guy Giorno Integrity Commissioner Township of Centre Wellington March 24, 2021

Footnotes

1. 1Ontario Heritage Act, R.S.O. 1990, c. O.18, subs. 27(3).
2. 2Heritage Centre Wellington is an advisory body to Council and Township staff on matters related to cultural heritage conservation within the Township. Specifically it advises Council on all matters relating to Part IV and Part V of the Ontario Heritage Act, including Council’s authority to designate individual properties as heritage properties. This inquiry specifically deals with Councillor VanLeeuwen’s debating and voting on the matter of Bridge 4-WG at the June 29 meeting of Council because that was the issue raised by Councillor Foster in the Application.
3. 3More information on Charles Mattaini’s bridges is available online. See, for example: https://roadstories.ca/charles-mattainis-bowstring-bridges/
4. 4Under subs. 5(1) of the MCIA it is a Member’s duty to disclose a pecuniary interest and abstain from voting or otherwise influencing the matter. Neither another Council Member nor Council as a whole can require a Member to disclose an interest. The remedy available for a Member’s failure to disclose a pecuniary interest is an application to the Integrity Commissioner or directly to the Superior Court of Justice.
5. 5Tuchenhagen v Mondoux, 2011 ONSC 5398, at para 31.
6. 6Bowers v. Delegarde, 2005 CanLII 4439 (Ont. S.C.), at para. 78; Darnley v. Thompson, 2016 ONSC 7466, at para 59; Rivett v. Braid, 2018 ONSC 352, at para. 51.
7. 7Lorello v. Meffe, 2010 ONSC 1976, at para. 59; Darnley v. Thompson, at para. 59.
8. 8Methuku v. Barrow, 2014 ONSC 5277, at paras. 43, 48; Lorello v. Meffe, at para. 59; Darnley v. Thompson, at para. 59.
9. 9Gammie v. Turner, 2013 ONSC 4563, at para. 57; Darnley v. Thompson, at para. 63.
10. 10Darnley v. Thompson, at para. 59.
11. 11Bowers v. Delegarde, at paras. 76, 78; Rivett v. Braid, at para. 51.
12. 12In quoting from documents, my practice is to correct obvious typographical errors without drawing attention to the correction unless the correction is material. These reasons also edit punctuation and capitalization for consistency.
13. 132013 ONSC 5349, at para. 41.