Wednesday, 13 February 2013


Councillor Adriane Carr requested my legal opinion relating to the powers of the City Manager. She distributed to the Media yesterday.  A short version was also supplied but many people have asked for the complete text with statutory citations. Here is a slightly edited version of that opinion.
February 10, 2013
Councilor Adriane Carr

Dear Councilor Carr
Re:  Powers of the City Manager to prevent a notice of motion from being presented to Council
You have requested our opinion as to whether the City Manager has authority: (a) to refuse to permit a motion submitted by a Vancouver City Councilor to be placed on the Council Agenda and,   (b) to direct you to avoid public discussion of council business, and (c) whether your motion puts at risk civic business as alleged by the Manager.
            Our answers to your specific questions may be summarized as follows:
The Vancouver City Manager has no authority to prevent a motion submitted by a Vancouver City Councilor, from being placed on the Council agenda.  To do so would be completely improper since it interferes with the performance of your legislative duties.
The Manager can provide her advice but cannot prevent a City Councilor from discussing Council business with the media.  The Manager serves at the pleasure of Council and not the other way around.
The test of the Manager’s authority is not whether a public utterance by politicians may ultimately affect the City, positively or negatively.  The Manager simply has no authority to limit a City Councilor’s right to publicly discuss Council business.  A councilor may be liable under some circumstances for defamatory statements or for damages to the City arising from disclosure of confidential matters but the manager cannot do anything about it other than give advice.
Whether or not the motion you submitted for the Feb 12 2013 meeting of Council (attached) put at risk or adversely affects the Park Board or the City, given the ongoing negotiations between the General Manager of the Park Board and Community Centre Associations regarding their Joint Operating Agreement is irrelevant.  This is a political question rather than a legal one.  The answer to the question raised by the motion could affect the outcome, but that does not give the manager the right to interfere with the submission of your motion to Council or to publicly advocate for one side or another.
The negotiation of the Joint Operating Agreement is completely different from the negotiation of union contracts.  Council discusses a limited list of things including union matters in camera because they are specifically permitted to do so.  Everything else must be in open session.
Although you could bring an application for judicial review, if your motion does not make the agenda, this is not a practical legal mechanism in this case.  You will be better off exposing through political means and public discussion the issues you consider.  important.
            You have provided us with the following facts upon which we rely in providing our opinion:

email exchange deleted


The City of Vancouver is said to be a creature of statute.  It has only those powers conferred upon it by the legislature through the Vancouver Charter, and to a lesser extent, where applicable, the Community Charter and Local Government Act.  Therefore, any bylaw, resolution or action by any official must be authorized by and consistent with the powers delegated by the Vancouver Charter.  A bylaw, resolution or action by an employee that does not have its source in the Vancouver Charter will be declared ultra vires and set aside. 

Municipal powers may be administrative (executive), quasi-judicial or legislative.  Councilors on different occasions carry out each of these functions.  Only Councilors, however, can carry out legislative functions.  Thus, even if the Manager had the power under a bylaw to prevent a legislative act from occurring, the bylaw would be ultra vires (beyond the power of the council to enact) and would be set aside.

Section 161 of the Vancouver Charter provides that by a vote of not less than two thirds of its members, the Council may delegate to employees of the City any of the executive or administrative powers exercisable by the Council.  There is no power to delegate legislative powers.  Delegates can’t delegate to others unless empowered to do so.  Your notice of motion is a legislative act.  The power to prevent it from going to Council could not be delegated to the manager.

161. Delegation of powers
By a vote of not less than two-thirds of its members, the
Council may delegate, with or without restrictions or conditions, to any committee comprised
(a) of members of the Council; or
(b) of employees of the city; or
(c) of members of the Council and employees of the city,
any of the executive or administrative powers exercisable by the Council.

The Vancouver Charter s. 162A empowers the Council to set up departments.  S. 162A empowers it to appoint a Board of Administration (now called the Manager) and delegate to it “any of the executive or administrative powers exercisable by the Council or any of the functions or duties by this Act specifically assigned to any officer or employee;   There are, however, no executive or administrative powers of Council that could be delegated to the manager to stop your motion, which is a legislative act, from being presented to Council.  This is clear if we review further Council’s powers outlined below for they simply do not allow it.

162A. To appoint a Board of Administration
The Council may by by-law provide for the appointment of a Board of Administration and may delegate to such Board any of the executive or administrative powers exercisable by the Council or any of the functions or duties by this Act specifically assigned to any officer or employee. The Council may by such by-law make provisions with respect to
(a) the persons who shall constitute the Board;
(b) the remuneration that shall be payable to the members of the Board. If the membership of the Board includes members of Council, the remuneration payable shall be in addition to the remuneration received as a member of Council and shall not disqualify such member from continuing to hold office as a member of Council;
(c) the matters coming within the jurisdiction of the Board;
(d) the procedure to be followed by the Board;
(e) such other matters as Council may deem fit.

Procedure Bylaw.  The Council must by bylaw establish the procedures that are to be followed by it.  The bylaw once enacted must not be altered except by a bylaw passed according to proper procedures.  (Vancouver Charter s. 164.1)  The bylaw already provides how notices of motions are brought before council.  The Manager cannot gratuitously overrule the process.

164.1 Meeting procedures

164.1(1) The Council must, by by-law, do the following:
(a) establish the procedures that are to be followed for the conduct of its business, including the manner by which resolutions may be passed and by-laws adopted;
(b) establish the procedures that are to be followed in conducting meetings of
(i) select and standing committee of Council, and
(ii) any other committee composed solely of Council members acting in that capacity;
(c) establish the time and place of regular meetings of Council;
(d) require advance public notice respecting the time, place and date of Council and committee meetings and establish the procedures for giving that notice.

164.1(2) A by-law under this section must not be altered except by a by-law passed at a regular Council meeting in accordance with a notice in writing given and openly announced at an earlier regular meeting.

Council meetings must generally be open to the public except as provided by Vancouver Charter s. 165.2 to 165.8.

165.1 General rule that meetings must be open to the public

165.1(1) A meeting of the Council must be open to the public, except as provided in sections 165.2 to 165.8.

165.1(2) The Council must not vote on the reading or adoption of a by-law when its meeting is closed to the public.

A few specific matters may or must be closed to the public (165.2).  Thus, the general rule is openness.  The exception is secrecy.  A system that allowed the hired help to prevent a councilor from asking questions through the formal procedure of the notice of motion would be an invitation to corruption.

165.2 Meetings that may or must be closed to the public

165.2(1) A part of a Council meeting may be closed to the public if the subject matter being considered relates to or is one or more of the following:
(a) personal information about an identifiable individual who holds or is being considered for a position as an officer, employee or agent of the city or another position appointed by the city;
(b) personal information about an identifiable individual who is being considered for an award or honour, or who has offered to provide a gift to the city on condition of anonymity;
(c) labour relations or other employee relations;
(d) the security of the property of the city;
(e) the acquisition, disposition or expropriation of land or improvements, if the Council considers that disclosure could reasonably be expected to harm the interests of the city;
(f) law enforcement, if the Council considers that disclosure could reasonably be expected to harm the conduct of an investigation under or enforcement of an enactment;
(g) litigation or potential litigation affecting the city;
(h) an administrative tribunal hearing or potential administrative tribunal hearing affecting the city, other than a hearing to be conducted by the Council or a delegate of Council;
(i) the receipt of advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
(j) information that is prohibited, or information that if it were presented in a document would be prohibited, from disclosure under section 21 [disclosure harmful to business interests of a third party] of the Freedom of Information and Protection of Privacy Act;
(k) negotiations and related discussions respecting the proposed provision of an activity, work or facility that are at their preliminary stages and that, in the view of the Council, could reasonably be expected to harm the interests of the city if they were held in public;
(l) a matter that, under another enactment, is such that the public may be excluded from the meeting;
(m) the consideration of whether a Council meeting should be closed under a provision of this subsection or subsection (2);
(n) the consideration of whether the authority under section 165.21 [other persons attending closed meetings] should be exercised in relation to a Council meeting.

165.2(2) A part of a Council meeting must be closed to the public if the subject matter being considered relates to one or more of the following:
(a) a request under the Freedom of Information and Protection of Privacy Act, if the Council is designated as head of the local public body for the purposes of that Act in relation to the matter;
(b) the consideration of information received and held in confidence relating to negotiations between the city and a provincial government or the federal government or both, or between a provincial government or the federal government or both and a third party;
(c) a matter that is being investigated under the Ombudsperson Act, of which the city has been notified under section 14 [ombudsperson to notify authority] of that Act;
(d) a matter that, under another enactment, is such that the public must be excluded from the meeting;
(e) a review of a proposed final performance audit report for the purpose of providing comments to the auditor general on the proposed report under section 23(2) of the Auditor General for Local Government Act.

165.2(3) If the only subject matter being considered at a Council meeting is one or more matters referred to in subsection (1) or (2), the applicable subsection applies to the entire meeting.

None of the listed items in Vancouver Charter s. 165.2 (1) (a) – (n) dealing with matters in closed section relate to the reorganization of a department or the Park Board.  I suspect from your comments that, the Manager is relying on Vancouver Charter s. 165.2(1) (k) repeated for convenience below:

(k) negotiations and related discussions respecting the proposed provision of an activity, work or facility that are at their preliminary stages and that, in the view of the Council, could reasonably be expected to harm the interest of the city if they were held in public

Your motion is clearly not captured by subsection (k).  The section can only apply when Council itself formulates the view that it could be reasonably be expected to harm the interest of the city if discussions respecting the matter were held in public.  When did Council put the topic under lock down?  The fact that the Park Board had public meetings on the matter clearly indicates that it never happened.

Harming the interest of politicians is not the same as harming the interest of the public.  If the Council, however, wants to try to keep it out of the lime-light  it can do so in response to your motion and determine that to discuss matters of policy could threaten Vancouver’s economy.  The point is that it is Council and not the Manager that is required to make that decision.  It cannot delegate it to the Manager.

The phrase “Preliminary Stages” in subsection (k) does not apply either.  This discussion about CCA’s is not in its “preliminary” stages.  It has been going on publicly at least since early in the summer 2012.  Opposition has arisen to the proposal.  But opposition and dissent does not trigger s. (k) nor does it justify an iron curtain of secrecy when the general rule is required to be openness.  The negotiations, if they are really taking place at all, pertain to a system that has been around for decades.  It relates to the delivery of services by the Parks Board that the City funds.  It is not a new activity, work or facility that is at the preliminary stages.

The entire matter has already been the subject of an extensive meeting held by the Park Board that ended at 3:15 am on February 5.  At that meeting the Park Board General Manager presented information on the value of financial contributions by the CCA’s which is the topic for report back in your motion.  Given that the Park Board itself has already initiated discussion of this issue in public your motion cannot be considered to pose risks, or harm the interests of the City. A court would likely hold this assertion to be made in bad faith.

Vancouver Charter s. 165.2(1) (c) matters pertaining to labour relations or other employee is also to be in closed sessions.  You have asked whether the subject of your motion might be analogous to or relate to labour relations.  They are not analogous and it would not matter if they were.  The section does not speak of things “analogous to” labour relations.  The members of the CCA are not employees of the City or Parks Board and the section does not apply.

Vancouver Charter s. 165.2 (2) (supra)  lists matters that must be closed to the public if the subject matter relates to one or more of listed items (a) through (e).  None of the listed items are applicable in this case.

We assume that Council has not already resolved that all discussions on this matter must be conducted in a closed meeting.  You would know if they had.  However, under s. 165.3 before holding a closed meeting, the Council must state by resolution passed in a public meeting the fact that the meeting or part is to be closed and the basis under 165.2 for closing it.

Your motion is that Council receive a report back on monies raised by CCA’s, costs of replacing volunteers with paid staff and impact on childcare spaces.  It is preposterous to suggest that the answers to these questions have any effect whatever on negotiations with the Parks Board under (k) or on negotiations.

            Even if your motion dealt with a matter that is arguably outside of the City’s jurisdiction the Manager has no power to prevent it from coming forward.  The most she could do is provide wise counsel in this regard.  The matter, however, is clearly within Council’s jurisdiction.  Section 489 of the Vancouver Charter sets out the Powers of the Parks Board.  The Parks Board has no power to tax.  It is wholly dependent upon City Council since the City provides its budget.  The section specifically confers a power on the Board to do anything that the Council shall from time to time authorize.

489. Powers of Board

489(1) The Board shall have power to provide for
(a) – (p) omitted
(p) Council may add to powers
 — doing such other things with respect to any of the parks as the
Council shall from time to time authorize;
(q) Implementing powers
 — doing such other things in furtherance of any of the above powers as shall be deemed expedient;

(r) Recreational programs
 — organizing and conducting, and contracting with others to organize and conduct, recreational programs of all kinds, either in parks or in such other locations as may be approved by the Board or any of its employees designated for this purpose, and for fixing and collecting fees for such programs.

489(2) Fees and charges imposed under this section may be different for different classes of persons and activities.

The Board of Administration Bylaw no. 4017

Nothing in this bylaw provides the slightest glimmer of support for the Manager’s claim to be able to prevent your motion from coming to Council.  The Board has broad administrative powers. 

“5. The Board shall be responsible for: (a) Supervising and directing the affairs of the City and the employees thereof in accordance with the policies of Council established from time to time. (b) Advising and assisting the City Council.

The phrase Supervising and directing the affairs of the City must be construed in the context of powers delegated to the Manager and could not be construed to mean “supervising and directing elected Councilors in the appropriateness of the conduct of their legislative duties.”  Section 5(a) confers a power to supervise and direct the employees of the City in accordance with Council policies.  Councilors are clearly not employees within the context of the section of the bylaw nor under the Vancouver Charter.

Section 5 (b) says only that the Manager can advise and assist council.  It is significant that s.  6(2) states that the Manager shall not exercise any direction or control over the City Clerk or any other official in the performance of their statutory duties.  In providing your notice of motion, you are carrying out your statutory duties in the manner required.  Section (1) (o) states that that the Manager  may at meetings  speak to  reports and advise Council as to the technical, financial and administrative aspects of any other matter under consideration, but shall have no right to vote.  The interference with your political, legislative duties in this case would be tantamount to a right to vote.  Only Council can defeat your motion by a vote.  This is not a task for the hired help.

Procedure Bylaw 9756

Section 10.1 and 10.2 of the Procedure Bylaw clearly sets out the criteria required for a Council member to move or give notice of motion.  If the Councilors motion meets the criteria,   the City Clerk must add the motion to the agenda for the meeting.  The Manager by her action has interfered with the actions of both you and the Clerk in violation of Board of Administration Bylaw 4017 (6) (2)

Section 10.3 provides the procedure for a Council member to call notice of motion at a regular meeting as new business and that the Chair must place the motion on the agenda for the next regular meeting, The Manager has also interfered with the performance of the  these duties.

The Policy of the law is to encourage Councilors to speak freely.

In Cardwell v. Hutchinson 1995 CarswellBC 2007, [1995] B.C.W.L.D. 1943, a defamation case,  the Court quoted  Lord Diplock in Horrocks v. Lowe, [1974] 1 All E.R. 662 [H.L.] said at p. 671:
My Lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion.  The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interest or welfare of the inhabitants.  They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and as long as they do so honestly, they run no risk of liability for defamation of those who are the subjects of their criticism.
Council may defeat your resolution, table it, refer it to committee, adopt it or deal with it any other way allowed by its procedure bylaw.  The most the Manager can do in this instance is to offer valuable suggestions.  She can tell Council whatever she wants.  She cannot, however, simply refuse to allow the notice of motion to be delivered to Council as that would be an improper assumption of power. 

Sincerely yours,



  1. We have run into a similar problem at the Court of Appeal (BC) and Supreme Court of Canada where the registrars have unilaterally refused to accept motions for filing thereby denying access to justice for deserving litigants.

    The Minister of Justice (federal and provincial) have, so far, refused to intervene and the litigants cannot get their cases before the court.

    For details see

    1. Thanks. I will take a look at the blog but I assume that the empowering legislation is very different. The Vancouver Charter specifically directs the Clerk to deliver the motion to the Council and the Manager has no power to interfere. The problem would normally not arise because the Council would simply deal with it by tabling the motion. Here it was not the Councilor who is hurt but the public.

      Jonathan Baker

  2. Thanks for publishing your opinion Jonathan.

    I don't know if you've seen this article yet:

    It seems to me the City's story on this keeps changing. First they told the Courier:
    “Under the Vancouver Charter, and authorities delegated by city council, the city manager is responsible, along with the city clerk and the city solicitor, to manage the business of council. . . .”

    Now (no doubt in response to the publication of your opinion) it's:

    "Council’s procedure bylaw allows for the mayor to rule a motion out of order for a variety of reasons. Robertson’s decision came after the city clerk, city manager and city solicitor had privately discussed reasons for not supporting Carr’s motion."

    I thought the city solicitor was supposed to advise Council, not the city manager or mayor "in private". Has the city lawyer now become a private Vision operative?

    1. Thanks. I will do a short posting on this response. The Mayor declared the motion out of order not simply because he can but because the City Manager couldn't. Take a look at those reasons. How good does it make the Mayor and Council look now?
      Who won this after all?