On July 15th, the judge released his decision on the sanctions against Councillors Hanson, Kissel and Wright. In his ruling, he set aside (threw out) all the sanctions. You can read the decision here.
The judge concluded that there was not one but two solid reasons to remove the sanctions:
1. That Council breached Hanson, Kissel and Wright’s right to procedural fairness by not adequately addressing the “reasonable apprehension of bias” regarding the Investigator appointed to deal with the complaints against them; and
2. That “the sanctions are overwhelming and ones that no reasonable decision-maker could impose”.
He emphasized that, in a judicial review of municipal government decisions, the judge must give the “utmost deference” to its decisions, which he did by repeatedly giving the County the benefit of the doubt. Even so, he still ruled against them. The standard is that courts should not overturn municipal bylaws “unless they were found to be ‘aberrant’, ‘overwhelming’, or if ‘no reasonable body’ could have adopted them.”
The judge made it clear that his role was not to decide whether Hanson, Kissel and Wright had breached the code of conduct. Rather his role was to determine if the sanctions were lawful and whether the councillors were treated with procedural fairness. The judge frequently criticized the County for the absence of evidence to support the reasoning behind its decisions.
“Reasonable apprehension of bias”
The judge concluded that, when Hanson, Kissel and Wright raised concerns about potential bias on the part of the Investigator, both the Investigator and the Council had an obligation to adequately address these concerns. He concluded that neither had done so. As a result, he found that there was a reasonable apprehension of bias.
The judge noted that Council’s decision to appoint a lawyer as its Investigator indicated that they wanted the “assurances of objectivity that are associated with an Alberta lawyer’s professional ethics.” As a result, the judge found that it was reasonable for the three councillors to expect that the Investigator “would not have a significant professional relationship with any individual materially involved in the subject matter of the complaints”. The evidence, however, demonstrated there was an existing relationship between the Investigator and CAO Hoggan and Rocky View County.
The ruling indicates the Investigator’s only explanation was to say that municipal lawyers often advise both a council and its administration. The judge concluded that this dual role “might be acceptable where there is an alignment of interests”; however he concluded that there was no alignment of interests in this case. The professional relationship should have been carefully evaluated by both the Investigator and Council. Instead, he found that Council had relied solely on the Investigator’s report in reaching its decisions.
This failure to address the reasonable apprehension of bias resulted in a lack of procedural fairness that was, on its own, sufficient grounds for the judge to set aside all of the sanctions.
“No reasonable decision-maker would have imposed these sanctions”
The judge’s ruling makes it clear that sanctions must be both related to and proportionate to the breaches of the code of conduct for the sanctions to be within the lawful authority of a municipal council.
In examining the proportionality of the sanctions, the judge determined that, where he could infer some relationship between the sanctions and the breaches, the duration of the sanctions was disproportionately harsh and should be thrown out. He then stated that “the discretionary terms of these sanctions are grossly disproportionate to the misconduct and [are] thus overwhelming.”
His overall conclusion was that, even if the Investigator and Council had afforded Hanson, Kissel and Wright the necessary procedural fairness by addressing the reasonable apprehension of bias, he still would have dismissed the sanctions. His reasoning was that “no reasonable body would have imposed such harsh sanctions”. Simply put, the punishment didn’t fit the crime.
The County has 30 days from July 15th to decide if it will appeal the decision. Appeals are not a way to rehear a case because a decision is not in a party’s favour. They must be based on factual or legal errors that affect the outcome. We sincerely hope everyone is willing to accept the decision and move forward in a manner that is respectful of differences of opinions and that will make fiscally responsible use of our tax dollars.