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Legal advice - Mr. Edward McCann

 
 Translation by the Municipality of Pontiac’s Communications department
of a few extracts from the legal advice received
from RPGL Lawyers on April 25, 2018
concerning the legal fees of Mr. Edward McCann

(The original has been made public in its entirety
on June 12, 2018 by the Municipal Council)

(Pages 5 and 6)

“In order to be successful in its claim for reimbursement, the Municipality has the burden of proving gross, intentional or separable negligence in the performance of his duties, even when the Municipality was the one who approached the Court for an application to declare the disqualification.

It is of our opinion that the evidence does not show gross, intentional or separable negligence in the performance of duties.  Mr. McCann’s behaviour, according to the Court’s judgement, was not motivated by the intent to deliberately or voluntarily harm or cause a prejudice to the Municipality.

The legislator shows in the first paragraph of section 711.19.3 that, the elected representative concerned, must be reasonably protected from financial losses related to the performance of his duties, without the municipality’s resources being used to provide protection against misconduct unrivaled with the errors that can reasonably be expected of an elected representative within the performance of his duties.

(…)

According to the Court of Appeal, Mr. McCann proceeded in good faith and the arguments raised in his defence helped advance the state of the law in relation to sections 64 and 65 of the Act respecting elections and referendums in municipalities.

While the Court of Appeal upheld the Superior Court’s judgment declaring that McCann is ineligible and disqualified, the Court concluded that the object of the appeal, the questions raised by the parties were of public interest and consequently, that no court fees would be granted.

It is necessary to note that prior to the judgment in this case, by Judge Kasirer10, no precedent existed on the notion of confusion with respect to the Act respecting elections and referendums in municipalities.  Nevertheless, it is one of the reasons that prompted the Court of Appeal to adjudicate on the merits of this case.

Consequently, we are of the opinion that, despite the fact that the proceedings were brought by the Municipality and that the Act respecting elections and referendums in municipalities allows, under the circumstances, to ask for a refund of the elected representative’s expenses in the present case, for the motives previously explained, we seriously doubt that a Court would impose this financial burden on Mr. McCann.

It must also be noted that, in the event that the Municipal Council maintains its decision to initiate proceedings to recover the said sums, and that Mr. McCann disputes the claim for reimbursement, section 711.19.4 of the Act forces the Municipality to assume Mr. McCann’s defence costs.11 “

(…)


 

10 http://canlii.ca/t/gx3f1 page 89

11 La protection contre les pertes financières liées à l’exercice des fonctions municipales : de la théorie à la pratique, Lalonde Marc, Développement récents en droit municipal, 2011, page 204

 

 Posted June 13/18