A blog about local government law from a western Canadian perspective. Welcome to Peace, Order, and Good Local Government ("POGLG"), a blog about local government law from a western Canadian perspective. This blog is for anyone interested in good local government, including elected officials, administrators, workers, lawyers, and concerned citizens. The District of Squamish describes good local government as "a transparent, accountable, and responsive system that promotes community welfare, equity, and sustainable development through active citizen participation. Key pillars include efficient public services, economic development, and fostering community cohesion. It acts as a community representative, balancing diverse needs while ensuring accountability and the rule of law." This is a very good summary of the subject matter this blog intends to cover. I hope you find it informative and engaging. Please feel free to add a comment or share a question.

Conflict of Interest Elected officials of local governments are subject to conflict of interest rules. These rules are typically codified in municipal government enabling legislation, but they may also be subject to common law (judge made) rules. British Columbia’s conflict of interest rules are set out in ss. 100-109 of the Community Charter and they are typical of the rules for elected municipal officials across Canada. In general terms, if a council member attending a council meeting or a council committee meeting considers that they have a direct or indirect pecuniary interest in the matter, or another interest in the matter that constitutes a conflict of interest, they must declare it and state in general terms why they consider this to be the case. They must then remove themselves from the meeting and refrain from any discussions or voting on the matter. Conflict of interest rules generally are based on the moral principle “that no man (sic) can serve two masters” (Schlenker v Torgrimson, 2013 BCCA 9 [Schlenker], at para 38, quoting Re Moll and Fisher et al., 1979 CanLII 2020. The Court stated that the Community Charter’s goal in this regard is to “prevent elected officials from having divided loyalties in deciding how to spend the public’s money,” and that its restrictions must be construed broadly in a manner consistent with that goal (Schlenker at para 34). There are two types of conflicts of interest, pecuniary and common law conflicts. A pecuniary interest is a financial or monetary interest, whereby there is a recognizable incentive to vote for pecuniary rather than policy reasons. Pecuniary interest has also been defined as something that could monetarily affect land, in the sense of an advantageous or disadvantageous financial impact. Non-pecuniary interests (or “common law” conflicts) are based on perception and do not require evidence of wrongdoing. A non-pecuniary conflict is based on the notion that persons in public office must not use their positions to their personal advantage (Old St. Boniface Residents Assn. Inc. v Winnipeg (City), [1990] 3 SCR 1170 [Old St. Boniface]). Section 100(2) and (3) of the Community Charter provide that if an elected official attending a meeting considers that he or she has a pecuniary interest in the matter that is before council or another interest in the matter that constitutes a conflict of interest, the official must declare this and state in general terms the reason why the official considers this to be the case. After making the declaration, s. 101 of the Community Charter provides that the official must not remain in the meeting, participate in any discussion on the matter, vote on the matter, or attempt to influence voting on the matter. Exceptions to the conflict of interest rules in ss. 100 and 101 are provided in s. 104 of the Community Charter in the following circumstances: (a) the pecuniary interest of the council member is a pecuniary interest in common with electors of the municipality generally; (b) in the case of a matter that relates to a local service, the pecuniary interest of the council member is in common with other persons who are or would be liable for the local service tax; (c) the matter relates to remuneration, expenses or benefits payable to one or more council members in relation to their duties as council members; (d) the pecuniary interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence the member in relation to the matter; or (e) the pecuniary interest is of a nature prescribed by regulation. If a council member contravenes the conflict of interest rules in ss. 100 and 101 with respect to a direct or indirect pecuniary interest, the councillor is disqualified from holding office until the next general election unless the contravention was done inadvertently or because of an error in judgment made in good faith. The councillor may also be ordered to give up any financial gain arising from the conflict under s. 109. An application to the BC Supreme Court declaring the disqualification of a councillor can be made by the District by council resolution adopted by at least two-thirds of all council members, or by 10 or more electors in the municipality. The application must be made within 45 days after the alleged basis of the disqualification comes to the attention of applicants. Indirect or Direct Pecuniary Interests In Redmond v Wiebe, 2022 BCCA 244 (“Wiebe”) the Court of Appeal developed a two-stage test to determine whether a locally elected official has violated the conflict-of-interest restrictions in the Vancouver Charter, 1953 (“Charter”) (at para 45). The conflict-of-interest provisions in the Charter are identical to those in the Community Charter, so the same test would likely apply to interpret the conflict-of-interest provisions in the Community Charter. At the first stage of the test, (1) the petitioners have the burden of showing that the council member in fact had a conflict of interest due to a direct or indirect pecuniary interest, and that the council member improperly participated in a council or committee meeting despite the conflict of interest. If the petitioner is successful, the test moves to the second stage, and (2) the council member has the burden of proving that their pecuniary interest constitutes one of the exceptions listed in section 104 of the Community Charter (Wiebe at para 45). As noted above, indirect or direct pecuniary interests are interests which may have money-related consequences for the council member. Courts have interpreted what may amount to a pecuniary interest broadly (Grand Forks (City) v Butler, 2016 BCSC 349). The interest does not have to mean actual money in hand. It is sufficient if a matter may affect (positively or negatively) a pecuniary interest of the councillor (Tuchinhagen v Mondoux, 2011 ONSC 5398 (appeal dismissed 2012 ONCA 567). If a pecuniary interest is found to exist, the second stage of the test is to determine whether the pecuniary interest constitutes one of the exceptions in s. 104(1) of the Community Charter (Wiebe). Wiebe considered the “interest in common” exception under s. 104(1)(a) and reiterated the notion that the interest in common exemption applies if the pecuniary or personal interest is “not different than the community in general.” In Wiebe, the respondent councillor, the owner and investor of a restaurant and bar, participated in and voted on a resolution to expedite patio permitting without declaring a pecuniary interest in the matter. His restaurant was one of the first 14 businesses in the municipality to be granted a licence. The Court of Appeal held that the council member’s interest was not in common with the electors of the municipality. The comparator group realistically sharing a common pecuniary interest is that segment of the 3,127 licensees who were ready and able to take advantage of the patio licensing program during its initial limited availability. Given that only 452 applications for the patio licensing program were received by the City by September 2020, the Court inferred that the proper comparator group is much smaller than 3,217 licensees. This was too small of a segment of the community to justify the application of the interest-in-common exception. Further, even if the class of hundreds of permit holders were large enough to support this exception, Councillor Wiebe distinguished himself from that class and put his pecuniary interest in common with an even smaller group: those who could immediately enjoy the benefits of the patio licencing program. Non-Pecuniary Interest (or “Common Law” Conflicts) Non-pecuniary interests (or “common law” conflicts) are based on perception and do not require evidence of wrongdoing. A non-pecuniary conflict is based on the notion that persons in public office must not use their positions to their personal advantage (Old St. Boniface Residents Assn. Inc. v Winnipeg (City), [1990] 3 SCR 1170 [Old St. Boniface]). The Court in Old St. Boniface briefly distinguished between two types of non-pecuniary interest. The first is “partiality by reason of pre-judgment”, and the second is partiality “by reason of personal interest” (Old St. Boniface at 1196). As such, there are two tests that the courts will apply in situations where a Council member may have a non-pecuniary conflict of interest. The first test deals with circumstances when a council member has associations or connections within the community, and the second test deals with bias. Personal Interest When the council member has associations or connections within the community that may override the public interest in making a decision, the test first asks whether the interest is particular to the Council member or if it is an interest in common with other citizens. If it is an interest particular to the Council member, then the court asks whether “the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty” (Old St. Boniface at 1196). In Watson v Burnaby (City), 1994 CanLII 1027 [Watson], the Court referenced Re L'Abbé and The Corporation of Blind River (1904), 7 O.L.R. 230 [L'Abbé], and Old St. Boniface, for the key criteria to evaluate whether a non-pecuniary conflict of interest is present. The Court in Watson referenced L'Abbé for the proposition that the non-pecuniary interest required to warrant disqualification from voting must be a "substantial interest". From L'Abbé and Old St. Boniface, the Court drew that the council member’s interest in the matter “must go beyond that which he or she may have in common with other members of the community; it must be an interest which is peculiar to the councillor, in effect, something that will serve his or her own personal ends” (Watson). Finally, the Court said, where there is such an interest, it must be so related to the subject matter of the vote that a reasonably well-informed person would conclude that the interest may well influence the councillor’s vote. The consequences of an elected official having a common law conflict of interest in respect of a resolution or bylaw are as follows: (a) Prior to the voting on the matter, a party who is adverse in interest may obtain an injunction to prevent the official from voting, if the court is persuaded that there is a common law conflict of interest; (b) The bylaw or resolution could be set aside if the official’s vote would have been necessary to form the majority, unless the disqualification from voting arises from a disqualification from office, in which case s. 261 of the Local Government Act would likely save the bylaw or resolution; (c) In some cases, where the interest of the official relates to certain “quasi-judicial” decisions, such as the issuance of a permit, the resolution could be set aside as a result of the tainted vote. In British Columbia, disqualification from office is not a potential consequence of a common law conflict of interest. Reasonable Apprehension of Bias Reasonable apprehension of bias is a closely related doctrine to conflict of interest, but it is also somewhat distinct. The central focus of the bias cases is whether the elected official has pre-judged the matter such that he or she ought to be disqualified from participating in the vote. In Old St. Boniface, the Supreme Court of Canada formulated a more relaxed test for disqualifying bias in some circumstances. In Old St. Boniface, Winnipeg City Council approved a proposed land development. One of the municipal councillors who voted on the matter had been personally involved in the planning of the proposed development and appeared as an advocate in support of the application at a finance committee meeting. The councillor did not disclose his earlier involvement with the application at the public meetings. The residents’ association argued that the councillor was biased and should not have participated in the decision to approve the land development. The Majority of the Court held that unless a municipal councillor has an interest in the outcome – either pecuniary or because of a special relationship (in other words, a conflict of interest as discussed above), there was a new test for disqualifying bias. The new test applied in that case because there was no evidence to suggest that the councillor was motivated by some relationship with or interest in the developer, rather than with the development itself. However, the Majority also said, in circumstances when such a relationship is found to exist, the test is that which applies to all public officials: would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official's public duty? If that duty is to hear and decide, the test is expressed in terms of a reasonable apprehension of bias. The test for reasonable apprehension of bias that applies to all public officials is not whether the decision maker was biased in fact, rather it is whether “an informed person viewing the matter realistically and practically ... [w]ould think that it is more likely than not that [the decisionmaker], whether consciously or unconsciously, would not decide fairly” (Committee for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369 [Committee for Justice and Liberty], at 394).

The BC Supreme Court decision in Hamer-Jackson v. Neustaeter, 2026 BCSC 155 provides a good illustration of the law and what can happen when a member of council sues another member of council for defamation. In this case, the Mayor of Kamloops, Reid Hamer-Jackson, sued a member of council, Katie Neustaeter, for defamation. At the material time, the relationship between the Mayor and City Councillors was conflicted due in part to the fact that some City Councillors, including Councillor Neustaeter, took issue with the manner in which the Mayor was conducting himself. The allegedly defamatory statements in issue in the action stemmed from interactions between the Mayor and Councillor Neustaeter’s father, Kevin Krueger. Mr. Krueger was a former long-time Member of the Legislative Assembly of the Province of British Columbia, and respected member of the Kamloops community. In the course of the Mayor’s October 2022 election campaign and thereafter, Mr. Krueger reached out to the Mayor on multiple occasions to express his support. At the time, Councillor Neustaeter was concerned about Mr. Krueger’s health. He had been diagnosed with a neurological disorder which leads to dementia and as of October 2022, Councillor Neustaeter believed that he was suffering from dementia. As such, Councillor Neustaeter was concerned that Mr. Krueger was vulnerable to being taken advantage of and asked the Mayor not to engage with him. Despite Councillor Neustaeter’s request, the Mayor continued to respond to overtures from Mr. Krueger. Based on a conversation he had with Mr. Krueger in January 2023, the Mayor formed the view that Councillor Neustaeter was unwarrantedly attempting to have Mr. Krueger committed despite him being of sound mind. The Mayor subsequently interjected Mr. Krueger’s support for him and health issues into City Council business. In response, Councillor Neustaeter asked the Mayor to, among other things, stop harassing and involving her father in his dealings, respect personal boundaries, and keep colleagues’ family members out of the political sphere. Councillor Neustaeter’s responses to that effect and a subsequent public statement criticizing the Mayor’s conduct as Mayor, were the allegedly defamatory statements in issue in the legal action. Councillor Neustaeter submitted that the Mayor’s defamation action ought to be dismissed under the Protection of Public Participation Act (BC) (“PPPA”) because her statements constituted expression on matters of public interest—specifically, expression regarding the political decision-making and debate process—and were are no grounds to believe that she did not have valid defences. With respect to her defences, Councillor Neustaeter raised defences of qualified privilege, fair comment, lesser defamatory meaning, and substantial truth. Councillor Neustaeter also submitted that even if she has not raised any valid defences, the public interest in protecting her freedom of expression outweighed the public interest in remedying any harm to the Mayor. The court provided an analysis of the PPPA and noted that the PPPA targets strategic lawsuits against public participation (“SLAPP”). While a typical SLAPP claim involves a powerful or wealthy plaintiff using litigation to silence criticism from a comparatively under-resourced defendant, not all SLAPPs fit within this archetype (Siman v. Eisenbrandt, 2024 BCCA 176 (“Siman”) at para. 32). The common defining feature is that “the proceeding acts to silence the defendant, and more broadly, to suppress debate on matters of public interest, rather than to remedy serious harm suffered by the plaintiff” (Siman at para. 32, citing Hansman v. Neufeld, 2023 SCC 14 (“Hansman”) at para. 48). Section 4 of the PPPA sets out the procedure for the pre-trial dismissal of actions that target speech on matters of public interest. The framework for the analysis of an application under s. 4 of the PPPA is guided by the Supreme Court of Canada’s decisions in Hansman, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes”) and Bent v. Platnick, 2020 SCC 23 (“Bent”), and the British Columbia Court of Appeal’s decision in Siman. Under s. 4(1) of the PPPA, the applicant (the defendant in the alleged SLAPP lawsuit) bears a threshold burden to demonstrate on a balance of probabilities that the alleged SLAPP lawsuit arises from an expression made by the applicant relating to a matter of public interest. If the applicant fails to meet this burden, the application will fail and the alleged SLAPP lawsuit will not be dismissed (Siman at para. 35, citing Pointes at paras. 21–23). If the applicant discharges their threshold burden under s. 4(1) of the PPPA, then the burden shifts to the respondent (the plaintiff in the alleged SLAPP lawsuit) under s. 4(2) to satisfy the court that there are “grounds to believe” that the proceeding has substantial merit, and that the applicant (the defendant in the alleged SLAPP lawsuit) does not have a valid defence in the proceeding (Siman at para. 36). The assessment under s. 4(2) is subjective and does not connote a theoretical assessment by a “reasonable trier” (Siman at para. 38, citing Pointes at para. 41). The “grounds to believe” standard requires something more than mere suspicion, but less than proof on the balance of probabilities. The “grounds to believe” standard will be met if there is any basis in the record and the law—provided it is legally tenable and reasonably capable of belief—to support a finding of substantial merit and the absence of a valid defence (Bent at para. 88). The “grounds to believe” standard requires “something more than mere suspicion, but less than…proof on the balance of probabilities” (Pointes at para. 40, quoting Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114). At the final step of the analysis, s. 4(2)(b) of the PPPA requires the respondent (the plaintiff in the alleged SLAPP lawsuit) to satisfy the Court that the likely harm they have suffered, or will suffer, due to the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. This balancing exercise serves as a “robust backstop” for the Court to dismiss even technically meritorious claims if the public interest in protecting the expression outweighs the public interest in allowing the proceeding to continue (Siman at para. 43, citing Pointes at paras. 53, 61-62; Hansman at para. 58. The PPPA instructs courts to dismiss “even claims with substantial merit … where the public interest in preserving free debate outweighs the harm to the plaintiff that the litigation purports to address” (Hansman at paras. 5, 51). The court ruled in favour of Councillor Neustaeter finding that the impugned statements were expressions made by her on matters of public interest and that there were grounds to believe that Councillor Neustaeter had a valid defence of qualified privilege with respect to each of the allegedly defamatory statements. The court also found that the harm to the Mayor, if any, resulting from Councillor Neustaeter’s expression were not sufficiently serious that the public interest in continuing this proceeding outweighed the public interest in protecting Councillor Neustaeter’s expression. As such, the court concluded that the Mayor’s defamation action must be dismissed under s. 4(2) of the PPPA.

Sayward is a small village of about 350 residents on Vancouver Island. Mark Baker is the mayor. During Mayor Baker's tenure as mayor, the village experienced significant political turmoil. Council meetings were often contentious, finances were under strain, councillors resigned, and there was even public discussion about whether the municipality should continue to exist. Into this already turbulent environment came a series of complaints about Baker's conduct. The controversy centred on allegations arising from three events between late 2022 and early 2023. Complaints were made that Baker had engaged in inappropriate behaviour toward a councillor's partner, including repeated touching, suggestive comments, sexual innuendo, and what was described as "leering." Baker denied that he intended to offend anyone. He maintained that any touching was friendly, not sexual, and that his humour was merely "mildly sophomoric". Formal complaints followed. An investigation was initiated. Mediation was attempted. Apology letters were issued. Nobody seemed particularly satisfied with the outcome. John France, who had served as Sayward's Chief Administrative Officer and later as acting CAO on several occasions, became an outspoken critic of how the matter was handled. Between mid-2023 and early 2024, France posted repeatedly in a Facebook group called Sayward Rant and Rave, which had approximately 1,700 members—about five times the village's population. His posts criticized both the mayor's conduct and council's handling of the complaints. He alleged that Baker had engaged in sexual harassment, had improperly participated in decisions about the complaints despite being personally involved, and had benefited from a process that lacked transparency. France also suggested that public money was being spent protecting the mayor rather than resolving the complaints. Baker sued France for defamation. Baker argued that France's Facebook posts falsely accused him of sexual harassment and misconduct and damaged his reputation. France responded that his statements were either substantially true, fair comment, or otherwise protected speech. More importantly, he relied on British Columbia's Protection of Public Participation Act (“PPPA”), often called an anti-SLAPP law. "SLAPP" stands for Strategic Lawsuit Against Public Participation—a legal action that can be used to discourage public criticism by forcing critics into expensive litigation. The PPPA allows courts to dismiss such lawsuits at an early stage if the speech relates to matters of public interest and if freedom of expression outweighs the plaintiff's interest in continuing the case. The common law has established a three-part test to determine whether France could rely on the PPPA as a defence against Baker’s defamation lawsuit. This test consists of three questions as follows: 1. Did Baker's lawsuit have substantial merit? 2. Were France's legal defences likely to fail? 3. Even if Baker had a viable claim, did the public interest in protecting free expression outweigh the public interest in protecting Baker's reputation? The answer to the first question was largely yes. The judge agreed that many of France's statements could be defamatory. Allegations that an elected official engaged in sexual harassment, mishandled complaints, concealed misconduct, and used public funds to protect himself would unquestionably harm a person's reputation. So Baker cleared the first hurdle. The real battle concerned France's defence of justification—the legal term for truth. Importantly, defamation law does not require every word of a statement to be perfectly accurate. The key question is whether the overall meaning is substantially true. The court carefully reviewed the evidence regarding Baker's conduct. Baker admitted making jokes involving condoms and sexual themes. He admitted joking during a council meeting about being "brought up on charges" for touching someone. He acknowledged that he often touched people on the arm when greeting them. The judge reviewed evidence from the complainant describing repeated touching, sexual comments, and behaviour that made her uncomfortable. The court concluded that there was enough evidence to support a finding that Baker's conduct fell within the broad legal definition of sexual harassment. That definition does not require criminal behaviour, romantic intent, or overt sexual propositions. Unwelcome touching, sexualized jokes, and conduct that creates discomfort can qualify. The judge was particularly unimpressed by Baker's argument that he never intended to offend anyone. Intent, the court noted, is not the key issue. The question is how the conduct affected the recipient. The judge acknowledged that some of France's Facebook posts may have contained exaggerations or imprecise wording. For example, France suggested Baker had "admitted" sexual harassment. Strictly speaking, Baker never admitted wrongdoing in his apology letters. However, the judge concluded that these inaccuracies did not materially change the overall picture. The essential message—that Baker had engaged in behaviour amounting to sexual harassment, that complaints had been made, and that the handling of those complaints was controversial—was supported by the evidence. As a result, the defence of justification had a real chance of succeeding. Under the PPPA, that was enough to derail Baker's lawsuit. The judge didn't stop there. Even if Baker had overcome the defence issue, the court found that freedom of expression would still win. The posts concerned the conduct of an elected mayor, municipal governance, public spending, transparency, accountability, and the handling of complaints against public officials. In other words, this was exactly the kind of political speech the law seeks to protect. The court emphasized that robust debate about elected officials is a cornerstone of democracy. While France's tone was occasionally sharp, sarcastic, and perhaps lacking in diplomatic restraint, his posts were fundamentally about matters of public concern. The judge also found little evidence that France's posts had caused significant independent harm to Baker. Any reputational damage likely stemmed from the complaints themselves, the broader dysfunction within council, resignations, media coverage, and ongoing public controversies. This decision serves as a reminder that public officials operate under intense public scrutiny and that criticism—even harsh criticism—is often protected when it concerns matters of public governance. It also illustrates an important reality of modern local politics: what once might have been debated over coffee at the community hall now unfolds in Facebook groups with hundreds or thousands of participants. The court was not declaring that all criticism and commentary is protected, nor was it giving people a free pass to make reckless accusations. Rather, it was affirming that citizens have broad rights to discuss, criticize, and question the conduct of elected officials—especially when those discussions involve transparency, accountability, and public money.