Ward 14 Councillor Terry Whitehead has not attended any City Council meeting since December 16, 2020, and City Council has not given him leave by resolution.
“The office of a member of council of a municipality becomes vacant if the member is absent from the meetings of council for three successive months without being authorized to do so by a resolution of council” states Section 259(c) of the Ontario Municipal Act.
There are no known instances of any other municipal council members being absent for three months.
Craig Gammie came close, when in 2017 a bail condition prevented him from attending council meetings. He sought a variation to his bail, which was granted, to attend a council meeting to avoid automatic removal from office. A Superior Court judge granted permission for Gammie to attend a meeting only for roll call, with a police escort at Gammie’s expense.
A councillor in Kincardine nearly reached the three month absence threshold this week. During their March 8, 2021 meeting, Kincardine Council – sitting as Committee of the Whole – discussed how to grant a leave for a councillor who has been ill since late December.
The Kincardine councillor’s condition is very serious, and their ability to speak is impaired. The councillor attended the December 18, 2020 meeting. Kincardine Council granted them leave during a council meeting which followed the committee meeting. (Discussion is at 1:59:20 to 2:03)
This returns us to Hamilton, where no leave has been granted and Councillor Whitehead has now been absent from Council for over 90 days.
The question now is what does “three successive months” mean.
A plain English reading is being absent for over 90 days is three months. The intent of the Municipal Act provision is to ensure municipal meetings are attending meetings or granted leave if they cannot attend.
The attendance requirement is not onerous, logging into a council video meeting for roll call or one vote is considered attendance for a meeting. There are numerous examples of municipal councillors being granted leave in advance of reaching the vacancy threshold.
Whitehead has not logged into any Council meetings since December 16, 2020. He logged into one sub-committee in January. Sub-committees and committees are not the same as a council meeting under the Municipal Act, only full council meetings meet the attendance requirement.
In a legal opinion, written for Kincardine Municipal Council, lawyer Steven J. O’Melia of Miller Thomson LLP writes:
“The question of what constitutes “three successive months” has been considered by courts and can be open to interpretation. One argument would be that the period runs for three months from the date of the first-missed Council meeting (i.e. the same numbered date in the calendar month which is three months after the month of meeting missed). A second interpretation is that “three successive months” means whole months, and that an attendance at any meeting in a particular month means that the first month to form part of the calculation does not start until the next month in the calendar.”
O’Melia’s opinion continues:
“If this issue was to be considered by a court, the judge would likely lean towards an
outcome that would preserve a councillor’s seat. That is, if there were dual
interpretations that could be given, the interpretation that would be more protective
of a councillor’s seat would likely be given preference. The reason for this is that
councillors are democratically elected by a majority vote of their constituents, and a
court would not want to find that a seat had been vacated unless the facts fell clearly
and inarguably within the wording of the Act.”
The next Hamilton City Council meeting is scheduled for March 31st. Council could grant leave at that time if Whitehead is not in attendance.