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Justice Nixon rules in Fort Macleod town council favour in judicial review

rene gendre

A Court of Queen’s Bench justice has ruled in the Town of Fort Macleod’s favour in a judicial review of sanctions imposed on Mayor Rene Gendre.
Justice K.D. Nixon ruled Thursday the mayor did not establish that council acted in bad faith or outside of its jurisdictions in imposing sanctions.
“A court must not interfere unless it can be said that a council’s actions were such that no reasonable council would take,” Justice Nixon wrote.
“That cannot be said of council’s actions here,” Justice Nixon continued in her written decision. “Council was faced with a difficult issue, which it sought to resolve in various ways.”
“Council was in the best position to weigh the competing circumstances in the context of the history of the difficulties between the parties in order to determine the governance structure that best addressed its needs.”
Citing concerns with the mayor’s conduct, council sanctioned Gendre on June 26, 2014, stripping him of all duties except attending meetings, taking part in discussions and voting on motions.
Council removed Gendre from all boards and committees and as spokesman for the Town of Fort Macleod.
Gendre in December filed an affidavit in Court of Queen’s Bench in Lethbridge for a judicial review, claiming council acted in bad faith and outside of its jurisdiction.
Council on Jan. 26 and July 13 extended the sanctions for further six-month periods.
“Council is pleased with the ruling in favour of the town,” Deputy Mayor Brent Feyter said in a news release. “We are happy to have this issue put to rest and look forward to continuing to build on our already vibrant community — together.”
Council sanctioned Gendre because it was concerned he was presenting himself as having authority — which he did not — to speak and negotiate for the town, and making binding agreements on its behalf.
Gendre was also seen to be using his position to have authority to direct town administration.
Council was also concerned Gendre was voicing his personal opinion as the opinion of the town and council without approval.
The mayor was also accused of violating the town’s advertising policy, and contravening rules governing public input at council meetings.
In addition, Gendre was seen as being “unreasonably” critical of town staff and members of the public.
Finally, council contended that Gendre improperly performed administrative functions that included issuing direct orders to town staff and volunteers.
Specific examples cited by council included:
• Soliciting business and negotiating land sales.
• Directing administration to discharge a caveat prohibiting development in the flood plan.
• Corresponding with government ministers about Highway 3 and the Southern Alberta Drag Racing Association without council approval.
• Submitting content for the Town bulletin in The Macleod Gazette without council approval in contravention of the town’s advertising policy.
• Confirming delegations for council meetings without sufficient notice and without referral to staff in contravention of the procedural by-law.
“In essence, council says the mayor’s actions did not reflect or respect the separate roles of individual members of council, of council acting as a whole through majority vote and of town administration,” Justice Nixon wrote in her decision. “Council was particularly concerned that the mayor was acting outside the bounds of council approval.”
Council attempted to address and resolve its concerns on an informal basis before sanctioning Gendre. This included adopting a covenant of conduct, which Gendre refused to sign.
Gendre cited as his refusal to sign the covenant a requirement that complaints about decisions of council or actions of administration be referred to the chief administrative officer (CAO). Gendre said this was a delegation of council’s responsibility.
Gendre also argued against the CAO being involved in his annual review, saying that is not a process mandated by the Municipal Government Act.
Gendre also argued a requirement of the covenant that council “act in the best interests of the citizens.” Gendre argued this contradicts the Municipal Government Act, contending the act allows council actions in the best interest of only some citizens.
Gendre also challenged the manner in which council adopted the covenant as town policy, and argued against its requirement that council members refrain from private or public criticism of town administration.
Gendre refused to sign the covenant until council obtained a legal opinion regrading its validity.
In his affidavit Gendre also cited as unreasonable demands made of him by council including:
• Signing and adhering to the covenant.
• Council directive is required to obtain legal advice.
• Refraining from debating a topic while chair when he has had “substantial” involvement in the topic.
• Refraining from entertaining input from the gallery outside of delegation requests made before council dates.
• Building a unified team by not speaking against any other town council member or administration unless it is to the individual with another council member present.
• Not demanding of town administration changes outside of town policy or procedure.
• Not writing letters on behalf of the town or representing the town at private or public meetings unless authorized and directed to do so by the whole of council.
“The mayor asserts that council imposed the covenant and the demands to coerce him not to be outspoken or critical,” Justice Nixon wrote. “He submits further that council’s actions were intended to punish him and that only in narrow circumstances can a municipal council impose punishment. He says his actions do not warrant punishment.”
Justice Nixon wrote that the court had to address the standard of review, council’s statutory authority and whether council acted in bad faith.
Justice Nixon ruled council had statutory authority for its actions through the Municipal Government Act.
Justice Nixon also ruled council did not act in bad faith by imposing the sanctions.
“Has the mayor established bad faith?” the justice wrote. “No, he has not. The evidence and the record establish that council was not acting to punish or to silence the mayor.”
“Rather, it was acting in an effort to achieve good governance.”
Justice Nixon wrote there is no evidence council was trying to marginalize or silence the mayor and rejected Gendre’s argument the reasons were imposed as “trifling matters drummed up to retroactively justify the sanctions imposed” and were irrelevant to good governance.
“I do not agree,” Justice Nixon wrote. “That council provided the mayor with reasons after the sanction were imposed is not evidence of bad faith. Council was not imposing after-the-fact standards but was providing the mayor with further examples of his conduct that was compromising the ability of council to govern and or administration to implement its policies.”
“Neither the record, nor the evidence before the court, supports the mayor’s contention that council acted to silence or marginalize him. Rather it supports the opposite conclusion — namely, that council passed the resolutions and the by-law to address the strained working relationship on council and with town administration, to which the mayor’s conduct contributed.”
“It supports the conclusion that council passed the resolutions and by-law for the purpose of good governance, namely to address the workability of council and of the municipality.”
Justice Nixon noted that while the mayor can hold differing opinions from council members they cannot undermine the operation of the municipality.
Justice Nixon pointed out council attempted to address concerns with the mayor’s conduct before imposing the sanctions.
“The sanctions do not silence the mayor as a voting member of council,” Justice Nixon noted. “He is able to put forward matters in accordance with the procedure established by by-law, as can any other council member. Council’s actions do not preclude him from exercising his duties as an elected member of council.”
Council has spent more than $125,000 in legal fees related to the judicial review and was to discuss in closed session last night how it will proceed.
Council has 30 days to file with the court to seek payment from Gendre if lawyers from both sides do not first reach a settlement.