Ward 14 Hamilton City Councillor Terry Whitehead at the first Council meeting of the 2018-2022 term Credit: Joey Coleman / The Public Record

Ward 14 Councillor Terry Whitehead has not attended a City Council meeting since December 16, 2020.

City Council has not given him leave by resolution.

Section 259(c) of the Ontario Municipal Act states: “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”

This raises the question: is his seat vacant?

Betteridge’s law of headlines applies here. No.

What does the Municipal Act mean by “three successive months?”

There are three possible interpretations discussed in court cases and legal memos:

1) 89 to 92 days from the last attended council meeting;

2) 89 to 92 days from the date of the first missed council meeting; and

3) three “full” calendar months from the first day of a new month following the last attended council meeting.

1880 Court Ruling

In the 1880 case Mearns v. The Corporation of the Town of Petrolia, the Court of Chancery of Ontario ruled on this question of the seat vacancy under the predecessor laws to today’s Municipal Act.

Councillor Mearns attended an April 5th meeting. He did not attend a May 31 meeting. At a July 7th meeting, the rest of Petrolia’s Council declared his seat vacant. [The 1880 ruling hints at much animousity between the councillors]

“They did not attend that of the 31st of May; but there was no intermediate meeting that they ought to have attended but did not attend. It would be absurd to say that they absented themselves from meetings when there were no meetings at which to be present,” reads the ruling.

The Court of Chancery of Ontario ruled the three months should be calculated from May 31st, the first meeting missed.

2017’s Gammie Case

In 2017, Ontario’s Superior Court declined to issue an interpretation of Section 259(c).

Town of South Bruce Peninsula Councillor Craig Gammie was prohibited from attending Council meetings due to bail conditions after he was charged with an assault against the Deputy Mayor.

As the three month deadline approached, Gammie applied to the Superior Court for a variation of his bail conditions.

He asked to attend a council meeting, be recorded as present, and leave. Thus, avoiding automatic removal from office.

The Judge granted permission for Gammie to attend a meeting only for roll call on a date before any of the deadlines of the three interpretations.  (Gammie had to arrange a police escort at his own expense.)

Recent Legal Opinion in Kincardine

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 leave for one of their colleagues who is seriously ill.

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.”

Whitehead Over 90 Days Since Last Present at Council in Hamilton

This returns us to Hamilton, where no leave has been granted, and Councillor Whitehead has been absent from Council for over 90 days.

The Municipal Act provision intends to ensure municipal councillors attend meetings or have been 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.

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.

The next Hamilton City Council meeting is scheduled for March 31st. Council could grant leave at that time if Whitehead is not in attendance.

As O’Melia’s opinion noted, the Superior Court will not remove a councillor “unless the facts fell clearly and inarguably within the wording of the Act.”