On March 19, 2020, to cope the Covid-19 Pandemic, Provincial Bill 187 was passed to allow municipal council members to participate electronically in a meeting that is closed to the public so they may deal with Town business. On March 26, at a Special Council Meeting closed to the public, Wasaga Beach Council voted to pay the legal costs for politicians and staff to sue for "...alleged defamatory statements" made in publications and on social media. The issue was originally scheduled to be handled during the regular Council Meeting of March 31 which was cancelled. At that regular meeting, members of the public would have been allowed to ask questions before the vote.
On very short notice, WBRA Executive Members and individual members submitted written correspondence to Mayor Bifolchi and Council expressing their concerns about the effect on freedom of speech and asking why the vote on the By-law could not be deferred until a regular meeting could be held. None of the letters or emails were permitted to be read aloud. No arrangements were made to allow public comment to be heard as it would be in a regular meeting.
Mayor Bifolchi sent each letter writer the same generic response which did not address the issues presented and left questions unanswered. Here is what the writers had to say that was not allowed to be said in council.
Letter submitted by Peter Gribbin
Open Letter to Mayor Bifolchi
Town of Wasaga Beach
March 26, 2020
Mayor Bifolchi,
RE: Bill 187 & Indemnification Policy Issue
Frankly, as a resident of Wasaga Beach I am shocked and outraged that you would abuse the intent of Bill 187 in order to push through policies and changes that clearly are not of an urgent or critical nature. Other local communities are doing the opposite and curtailing Council meetings, as they should. Why isn’t Wasaga Beach doing the same under your leadership?
In so doing, you are denying the public the right to engage in comments and ask questions of such significant policy changes as the proposed Indemnification Policy. Changes that could spend,or waste, significant tax dollars.
Why would you take such action when there are much more pressing things to deal with in our current environment, as you so clearly stated in your email to me this week?
In your rush to get things sanctioned and put into process, you are forgetting that your residents, the taxpayers you are supposed to represent, deserve to be properly informed and have time to review such serious changes.
I challenge your, and Council’s, right to even vote on such a radical change as the Indemnification Policy.
The Municipal Conflict of Interest Act contains the following clauses:
Duty of Member
When present at meeting at which matter considered
5 (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question. R.S.O. 1990, c. M.50, s. 5 (1).
Where member to leave closed meeting
(2) Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration. R.S.O. 1990, c. M.50, s. 5 (2).
The Indemnification Policy you are so keen to introduce seems to ignore the conflict of Pecuniary Interest. You, and all Council members, clearly have a Pecuniary Interest benefit by making use of taxpayers funds to finance legal actions intended to defend or protect said Council members; the intent of the Policy. In all cases where a Pecuniary Interest exists Council members are not allowed to discuss, or vote or influence the outcome. Yet this important point, addressed in all previous Council Agendas, seems to be ignored here. In short, none of you should be engaged in this mind-boggling Indemnification Policy at all.
There are several other issues centred around this Policy, which I will not elaborate on at this time but will certainly expand on publicly later should this Policy be sanctioned by Council.
While the right thing to do would be to, at the very least, postpone the approval of this significant policy change, based on recent issues glossed over by you, I do not expect this to happen.
I intend to share this letter, and any response, with members of the Wasaga Beach Ratepayers Association and the wider public as it is of vital interest and concern to all.
Sincerely,
PJGribbin
Peter J Gribbin
Wasaga Beach ON
CC: All Council Members, Town Clerk
Letter submitted by John Sare
John C. Sare
Wasaga Beach ON
Dear Honorable Mayor Bifolchi,
Deputy Mayor Bray,
Councillors Belanger, Foster, Watson, Kinney, Wells,
Cc: Dina Lundy, Town Clerk
I am writing to express the highest level of concern with Leadership and Council’s inclusion of the updates to the Indemnification Policy in the agenda for the upcoming Special Meeting of Council scheduled for March 26th.
First and foremost, Bill 187 was intended to provide council a means of addressing emergency measures in an appropriate situation deemed an emergency. Updating the Indemnification Policy as set out in the agenda dated March 12, 2020 is by no means a pressing or urgent matter. On the contrary, it is a complex and serious matter impacting every resident of Wasaga Beach. In addition, due to the implications of the Canadian Charter of Rights, and past precedent, proper protocol of public consultation, review and feedback is justified.
In addition, with the new measures and procedures outlined in Bill 187, the public has not had adequate time to be properly informed or familiarized with the new process and procedure changes as well as changes in the meeting format over-all from in-person to remote. Thus, many will find it difficult to submit feedback or questions.
But even more importantly, to address an issue of this critical nature and scope, in the context of a declared Province-wide State of Emergency is not only an abuse of circumstance, but further, it is morally and ethically wrong. Our residents are concerned for their health, safety and livelihood of their families and loved ones at this critical time, and do not need the added stress of our leadership imposing “surprise measures and tactics” in a last-minute, Special Meeting and effort to expedite and take advantage of these policy updates.
On the matter of the proposed changes themselves, there are additional concerns on several fronts that need to be addressed and clarified:
- The issue of statute of limitations for complaints and lawsuits
- The issue of providing a totally independent and unbiased committee for review of each case. Having our CAO, one of the highest paid town employees and a town compensated lawyer is by no means objective.
- A mechanism and defined process for repayment of taxpayer funds in the case of a failed action
- Council’s awareness that similar policies and actions have been challenged and dismissed in other municipalities by the courts, with defined precedent
- A plaintiff who’s legal costs are subsidized by the town has a distinct unfair legal advantage in a civil action against a resident defendant who is forced to fund their own defense. Our premise of law is based on “Fair trial”. This policy outs that right at question.
In closing, I sincerely hope Council reconsiders addressing this matter on next Thursday’s agenda, and further, reconsiders a further objective independent legal review the proposed updates to the Indemnification Policy itself. Your council ran on a platform of Uniting a dived town. This effort only serves to further divide (divide) and erode the confidence in your leadership’s mandate to work in the interest of taxpayers.
Respectfully,
John C. Sare
Cc: Doug Ford, Premier of Ontario
Letter submitted by Faye Ego
March 25, 2020
Mayor Bifolchi,
I am writing to ask how you can possibly call a Special Meeting of Council scheduled for March 26th, in the midst of a pandemic, in order to update an Indemnification Policy.
Bill 187 is a tool to provide council the capabilities to address emergency measures in an emergency situation. Updating the current Indemnification Policy as set out in the March 12, 2020 agenda by no stretch of the imagination is an emergency. This is a very serious and complex issue, one that can impact every resident of Wasaga Beach. In addition, due to the implications of the Canadian Charter of Rights, and previous precedent, proper procedure of public discussion, evaluation and feedback is warranted.
It is unacceptable that you have not given the public adequate time to be properly informed or familiarized with the new process and procedure changes as well as changes in the meeting format over-all; from in-person to remote.
What is unconscionable is that you are addressing this serious issue during a Pandemic. This is morally and ethically wrong. We are in the midst of a natural disaster no less than if the town was underwater or on fire. Businesses have closed down, people are staying home, and nobody I know is concerned with anything but getting through the next few days or weeks. Uncertainty and fear are everywhere. We do not need the added stress of the town’s leadership imposing “surprise new by-laws” in a last minute, Special Meeting in an effort to expedite and take advantage of these policy updates.
We have concerns on several fronts in regards to the proposed changes, which need to be addressed and clarified.
- The issue of statute of limitations for complaints and lawsuits.
- The issue of providing a totally independent and unbiased committee for review of each case. Having our CAO, one of the highest paid town employees and a town compensated lawyer is by no means objective.
- A mechanism and defined process for repayment of taxpayer funds in the case of a failed action.
- Council’s awareness that similar policies and actions have been challenged and dismissed in other municipalities by the courts, with defined precedent.
- A plaintiff whose legal costs are subsidized by the town has a distinct unfair legal advantage in a civil action against a resident defendant who is forced to fund their own defense. Our premise of law is based on “Fair trial.” This policy puts that right at question.
In closing, we are asking Council reconsiders addressing this matter on next Thursday’s agenda, and further, re-examines a further impartial independent legal review of the proposed updates to the Indemnification Policy itself. Most municipalities have suspended town business indefinitely, with the exception of emergency issues directly related to Covid-19 measures. We sincerely hope that you are not taking advantage of this chaotic time in history to move forward with the proposed Indemnification Process. Your council ran on a platform of transparency; do you really believe this is what your constituents expect?
Faye Ego
President
Wasaga Beach Ratepayers Association Inc.
Wasaga Beach, ON
cc: Honorable Doug Ford, Premier of Ontario
Wasaga Beach Council, Town Clerk
Letter submitted by Joy Steele
Dear Mayor Bifolchi and Council,
I'm writing to express my concern with the agenda for the March 26, 2020 special meeting of council. Particularly with the inclusion of the updates/revisions to the Indemnification Policy.
In reading Bill 187 (Municipal Emergency Act, 2020) it is obvious that it was intended to allow municipal council members to meet/participate electronically to address emergency measures needed to keep the municipality functioning.
By all appearances, this council is using the Act to push through the updates to the Indemnification Policy without the public being present or easily able, to voice their opinion. Please do not suggest to me that the residents have the opportunity to participate via the internet. I work daily with many of our senior residents and can confirm that many do not have access to the internet or if they do, they have no idea how to access the meeting or send their comments or concerns to council. Many of them won't even realize this meeting is taking place to begin with, unless a neighbour or friend tells them. You are willfully allowing some of the most vulnerable in our community to be further disadvantaged by holding this special meeting to include non-emergency items. Items which will affect the budget and how some tax dollars are used.
I have a number of concerns with the updates to the Indemnification Policy being included in this agenda. Not the least of which are:
- it's scope and complexity is not something the residents will have had fair time to explore and digest/understand, given we are in the middle of a Provincial/National/Global pandemic. Most people are having trouble adjusting to the current restrictions and health concerns. Thinking that they will have the time or energy to attempt to understand this complex issue is, in my opinion, not being in tune with the residents you were elected to represent
-there doesn't appear to be provisions or details in place for the plaintiff to repay the funds (tax payers) if their lawsuit fails
- there is not currently a totally independent committee to review each case to determine if it will be funded by taxpayers dollars. In my opinion, having our CAO as part of the review committee when he works closely with council and staff and the various committees, does not make it independent and therefore is not impartial.
- The town contributing to the plaintiff's legal costs certainly gives the plaintiff an unfair advantage when up against a resident/defendant who will have to finance their own defence. That certainly doesn't set up for a fair hearing. If a council member, staff member, or committee members truly feels like they've been disparaged to the point that they feel legal action should be taken, do what the rest of the community has to do, fund it themselves.
- The precedents already set by the courts in other municipalities, by similar cases being dismissed, is something this council should have been advised of by town staff already. If council has not been informed, or done their own research, this is another reason this decision should be deferred. There is enough evidence out there to show that the majority of these cases fail.
Given all these concerns, I hope, in the interest of truth, transparency and the best interest of the community, this council will choose to defer their decision on this by-law update.
In my opinion, Council's energy during the COVID-19 crisis should be in assisting residents get the help they need to do cope for the duration of this emergency. So many other communities are deferring their council meetings for the moment, in the interest of true democracy.
This council wants to heal the divide? Madam Mayor and council, I suggest to you that concentrate your efforts on assisting your residents during these scary times. You were elected to lead, now is your time to shine...or fail. The choice is ultimately yours. I pray you make the right one.
Joy Reinders-Steele
Concerned Wasaga Beach resident