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.”

“From day one, six councillors behind closed doors to maintain a disruptive stranglehold on Council, at the expense of residents, orchestrated this illegal motion, they wrote while adding 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.”

Brown, along with Singh and the four other councillors who voted against council’s motion to fill the vacancy, will be holding a news conference at noon Tuesday to address the court’s decision.