County Lawyer Shoots Down Conflict of Interest Allegations

Jeff Green | Jan 18, 2017

Members of the Hartington Community Association (HCA) were certainly off the Christmas list at the Vandewal and McDougall households this year.  Eric Gillespie, a lawyer representing them, sent a letter to Frontenac County and South Frontenac on December 6. The letter pointed out that the two men attend meetings of both Frontenac County and South Frontenac Councils, and says that the two bodies do not have “common interests” in the matter of a proposed subdivision in Hartington that the HCA opposes. This lack of “common interest” Gillespie is referring to comes from the fact that South Frontenac Council passed a motion on August 23rd expressing their opposition to the proposed subdivision, and on the very next day Frontenac County Council ignored that recommendation and approved the subdivision. Vandewal and McDougall supported the subdivision at South Frontenac Council (by voting against the motion that opposed it) and they both voted in favour of the approving the subdivision when it came to Frontenac County on August 24.

As the result of this, and the fact that issues surrounding the subdivision were discussed at an in camera meeting of South Frontenac Council, Gillespie claimed in his letter that there is a “reasonable perception and apprehension” of breaches of confidentiality,  solicitor client privilege, and common interest privilege on the part of the two men. It asks that the two men recuse themselves from any further meetings or communications regarding the matter.

Gillespie’s claim, on behalf of the HCA, is partly based on the possibility that in camera communication and legal advice they would have heard as members of South Frontenac Council could have been used by Vandewal and McDougal to advise their colleagues at in camera meetings of Frontenac County Council.

(Note – In Camera meetings are held in private, outside of public scrutiny, by municipal councils under a set of circumstances that are prescribed by the Municipal Act of Ontario. Minutes from those meetings are not released to the public.)

In response to the letter, Frontenac County sought legal advice from the firm of Templeman Menninga. A letter from Wayne Fairbrother and Samantha Foster of the firm poked some holes in Gillespie’s claim. The first point they made had to do with in camera meetings.

In the words of the letter: “In particular, the letter of December 6, 2016 alleges that in camera meetings were held by the county with respect to the Hartington Application. You have advised that, in fact, there have been no in camera meetings with respect to the Hartington Application. In our view, this fact completely removes the foundation for Mr. Gillespie’s allegations.”

The letter then goes on to deal with the concept of conflict of interest in this kind of case, concluding that in cases where members of council do not have a personal financial interest in a project it is difficult to argue they have a conflict of interest, citing case law to support that position.

The letter concludes that “in our opinion there is no legal basis for requiring council members of lower-tier municipalities who sit on upper-tier municipalities to refrain from participating in discussions on the Hartington Application at both levels of government.”

The entire matter of the Hartington subdivision will be dealt with at a hearing of the Ontario Municipal Board scheduled for this spring.