2009-03-30_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaireCity of Saint John
Common Council Meeting
Monday, March 30, 2009
Location: Common Council Chamber
Supplemental to Agenda
5.16
Sale of Hospital Street
5.15(b)Proposed Public Hearing
Date 1989 Manawagonish Rd
8.1
Green Thermal Utility
13.4
Committee of the Whole:
Relationship with Civic Administration
13.5
Committee of the Whole:
Management / Professional Pay Scale
13.6
Committee of the Whole:
Lease - Reversing Falls Restaurant Demand for Arbitration
13.7
Committee of the Whole:
Appointment to Committees
City of Saint John
Seance du conseil communal
Le Lundi 30 Mars, 2009
Lieu : Salle du conseil communal
Ordre du jour supplementaire
5.16 Vente de la rue Hospital
5.15(b)Audience publique visant les proprietes situees au rue 1989 Manawagonish
8.1 Amenagement d'installations thermiques vertes
13.4 Comite plenier: La relation avec I'Administration Civique
13.5 Comite plenier: I'Echelle de Salaire
13.6 Comite plenier: Restaurant Reversing Falls
13.7 Comite plenier: nominations pour sieger aux comites
M & C — 2009 — 93
March 30, 2009
His Worship Mayor Ivan Court and
Members of Common Council
Your Worship and Councillors:
SUBJECT: Proposed Public Hearing Date
1989 Manawagonish Road
BACKGROUND:
City of Saint John
As provided in Common Council's resolution of August 3, 2004, this report indicates the
rezoning and Section 39 amendment applications received and recommends an
appropriate public hearing date.
The full applications are available in the Common Clerk's office and will form part of the
documentation presented at the public hearing.
The following applications have been received.
Name of Location Existing Proposed Reason
Applicant Zone Zone
Kamaljit Sekhon 1989 Manawagonish "RF
Road
RECOMMENDATION:
"B-211 To permit the
existing motel
That Common Council schedule the public hearing for the municipal plan amendment
and rezoning application of Kama1jit Sekhon (1989 Manawagonish Road) for Tuesday,
April 14, 2009 at 7:00 p.m. in the Council Chamber, and refer the application to the
Planning Advisory Committee for report and recommendation.
Respectfully submitted,
Report to Common Council
Ken Forrest, MCIP, RPP
Commissioner
Planning and Development
Terrence Totten, F.C.A.
City Manager
KF/r
Page 2.
REPORT TO COMMON COUNCIL
M & C —2009-64
March 23, 2009
His Worship Mayor Ivan Court and
Members of Common Council
Your Worship and Councillors:
SUBJECT: SALE OF HOSPITAL STREET (Pending approval of Street
Closure) to MATRIX PROPERTIES INC.
"50
City of Saint John
Common Council, at its meeting of February 16, 2009 considered a report (M &
C #2009-41) and adopted the recommendation to initiate the stop-up and closure
of Hospital Street in its entirety. The Public Hearing was held at the March 16 th
2009 meeting of Common Council.
The property identified as civic #1 Agar Place comprises an office building and a
surface parking area, which was developed around 2000. Due to the single
ownership of the lands surrounding Hospital Street, a portion of the street has
been integrated with the parking area for this office building. During the
development of this property in 2000, there was discussion between City staff and
the proponent to proceed with the formal street closure process. However, for
reasons unknown, the process was not followed through.
City Engineering has no objection to the closure and subsequent sale of Hospital
Street as it serves only the one consolidated property. The municipal services
located within the street right-of-way would become the responsibility of Matrix
if the land is subsequently transferred. In addition, Matrix Properties Inc. will be
responsible to install a new shut-off water valve at the property line where it
meets the Waterloo Street property boundary.
ANALYSIS:
Historically, the City has sold these stopped-up and closed streets for minimal
land value plus administrative costs. Council has suggested that the City should
be demanding a land value more indicative to market value. The negotiated sale
price reflects the above and the proponent is in agreement. In addition, costs
associated with the advertisement and survey work are added to the purchase
price for the property. The survey work was commissioned by the proponent
while the advertising costs have been added to the purchase price for the land.
If Council proceeds with 3 d Reading for the street closure of the subject property,
the recommendation contained in this report will facilitate the sale of the land.
RECOMMENDATION:
1. That in the event the 743 square metre ± public street known as Hospital
Street is stopped-up and closed, The City of Saint John sell its freehold
interest to Matrix Properties Inc. for $22,195.00 plus HST (if applicable)
on or before May 29, 2009, subject to the conditions in the Offer of
Purchase and Sale attached to this report.
2. That the Mayor and Common Clerk be authorized to sign any documents
required to finalize the transfer.
Respectfully submitted,
Wt-n Fn"f-& AACTP PPP
Commissi
Ple 2an
Terrence Totten, F.C.A.
City Manager
CL/c
-02 -2009 MON 10.15 AM
P. 002/002
In the event that Hospital Street In Its entirety Is stopped-up and closed, as shown on
attached playa of survey prepared by Hughes Survey$ dated July 29, 2003, having an
area of 743 square metres (7xWs square Net), The City of Saint John oy es fbr
consideration the sale of its fee simple Interest to Matrix Properties Inc,, for the sum of
$22,195,00 plus HST (if applicable),
As part of the transaction, The City of Saint John is r6vonsible to prepare and pay for
the public advertisement noUf a adons that are required to satisfy the procedural
regulations, prior to the Consideration by Common Council W ,stop -up and close a street,
Matrix Properties Inc, Is reSPOnsible for the foilowing
i, A survey plan required for the process to stop -up and clwa Hospital Street and
any adml'nistrative document or any gather associated adrninistrative or
registration casts that are required to secure their interest in the above
mentioned property
2. A 3I10t -Off valve for the water pipe lime, located within the HosptsI Street right -
o way must be installed at the property line where It will meet the Waterloo
Street right -of -way, subject to the approval of the City's Chief City Engineer, The
strut of valve must be Installed within six (S) months of the cohveyancs of the
"to be closeed'7 Hospltal Street to Matrix Properties Inc.; and
3. A deposit in the form of a certified chaqua equal' to ten (ID) per cent of the
purchase price being $2,219zo plus KS.T, (if aPPlicable) must be received by
the City of Saint John, no later there Frlday, February V, 2009. In the event the
stet Is not strapped -up and closed, the deposit minus the coat of advertising will
be returned to Matrix Properties Inc,
"i1t1a alter Is subject to Common Council approval,
A, . a duly authorized representative�s) of Matrix
Proprertlas Inc, hereby acPept the offer W talned herein,
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Section 10.2(4)(b,fl
COMMITTEE-OF-THE-WHOLE
March 27, 2009
Committee of the Whole
of Common Council of
The City of Saint John
Mayor Court and Committee Members:
Re: Relationship with the Civic Administration
Common Council at its meeting of January 5, 2009 referred the following motion
to me:
RESOLVED that City staff will provide information to individual
Councillors upon request.
That motion engages the following fundamental questions:
• what is the role and authority of a Council with respect to the civic
administration?
what is the role and authority of an individual member of Council with
respect to the civic administration?
This correspondence has been prepared to address those questions and it will
begin with a brief overview of the nature and extent of the status of the
organization of The City of Saint John.
... /2
@-I ..... . . . . ............ ........ . . . . .........................................................................................................
SAINT JOHN P.O. Box 1971 Saint John, NB Canada E2L 4LI 9 wwwsaintjohn.ca � C.P. 1971 Saint John, N.-B. Canada E2L 41
Committee of the Whole
March 27, 2009
Re: Relationship with the Civic Administration
City Solicitor
Page 2
The Corporation of The City of Saint John was brought into existence by Royal
Charter granted to the inhabitants in 1785 by the first Governor of New
Brunswick Thomas Carlton. The Charter states that it was granted upon the
petition of His Majesty's subjects living in this area. Presumably they sought
incorporation in order to achieve a unified identity. There was some question as
to the legal effect of certain provisions of the Charter and to eliminate any doubt
in this respect, the Legislature confirmed the Charter in its entirety by statute.
Thus it can fairly be said that the City is a creature of the Legislature and its
authority is that delegated to it by the Legislature. The Corporation was initially
and continues to be comprised of the inhabitants within defined geographic
boundaries. This Corporation like every corporation has an existence at law
which is distinct from that of its members. A corporation is an artificial construct
and being intangible it must operate and express its will through human actors.
This is where the Common Council enters the picture. The Charter provides that
all the powers of the Corporation are vested in and exercisable by the Common
Council, meaning in effect that the Council is the agent of the Corporation. The
same provision is found in Subsection 9(1) of the Municipalities Act:
"9(1) The powers of a municipality are vested in and shall be
exercised by its council. "
For the sake in consistency and a common understanding, please note that the
Municipalities Act defines "council" as: "the mayor and councillors" and the
term "member of council" to mean "... any person elected to a council".
Individually members of Common Council have no authority to bind the
Corporation of the City or to establish the Corporation's position on any matter.
In other words, an individual member of Council has no authority to act on behalf
of the Municipality.
The City as a common law corporation has been delegated the power to establish
an organizational structure for a workforce and to populate it with employees.
This was subsequently modified somewhat by the Legislature which modification
will be dealt with later. The point to be noted for our present purposes is that any
employment relationship established is one between the City through the agency
of its Council and the employee, not a relationship involving one or more
members of Council individually, In other words, it is the Council which has
been delegated the power and authority to establish, populate and oversee a
workforce and no delegation of authority to a member of Council individually
exists in that regard.
/3
Committee of the Whole
March 27, 2009
Re: Relationship with the Civic Administration
City Solicitor
Page 3
The leading text on municipal law in Canada The Law of Canadian Municipal
Corporations (L MacF. Rogers) puts it succinctly:
"Moreover, they [members of council] have no authority to act for
the corporation, except in conjunction with other members
constituting a quorum. "
The proposed motion would effectively operate to delegate to members of
Council individually the Council's authority to deploy the human resources of the
Corporation. By its language it would operate to have an individual member of
Council exercise his or her unfettered discretion in determining the matters an
employee would pursue in the acquisition of information requested by the Council
member.
That a recipient of delegated authority, i.e. the Council, cannot re - delegate that
authority without express or implied permission is encapsulated in the maxim
delegatus non potent delegare. The Supreme Court of Canada in Moreau -
Berube v. New Brunswick (Judicial ~Council), Her Majesty the Queen in
Right of the Province of New Brunswick as Represented by the Office of the
Executive Council, and the Judicial Council, v. Judge Jocelyne Moreau-
Berube [2002] S.C.J. No.. 9, quoted with approval from the reasons of Gonthier
also of the Court in Therrien (Re) v. The Minister of Justice and the Attorney
General of Quebec et al [2001 ], 2 S.C.R. 3, as follows:
"It is settled law that a body to which a power is assigned under its
enabling legislation must exercise that power itself and may not
delegate it to one of its members or to a minority of those members
without the express or implicit authority of the legislation, in
accordance with the maxim hallowed by long use in the courts,
delegatus non potent delegare. " (para. 65)
The question then becomes: Has the Legislature provided Council with the
permission to re- delegate the authority which it has received from the Legislature
in this regard?
... /4
Committee of the Whole
March 27, 2009
Re: Relationship with the Civic Administration
City Solicitor
Page 4
Answering that question requires an examination of the relevant legislation
delegating authority to the Council. As previously noted the Charter stipulates
that all the powers of the Corporation of the City are vested in and exercisable by
the Council. There is no express authority for Council to re-delegate its power
respecting its relationship with employees of the Corporation; nor in my opinion
does the language of the Charter provide any such authority by implication. The
Municipalities Act by contrast does expressly address re-delegation of authority
by a Council. Like the Charter the Act as noted previously states that the powers
of a municipality are vested in and shall be exercised by its council (8.9(1)). It
goes on to state that:
"4(3) A municipality may provide for, create, alter and abolish ...
officials ... of the municipality and delegate administrative powers
and duties to them. "
The re-delegation countenanced by Subsection 4(3) is clearly restricted to
administrative powers and duties. The authority sought to be delegated by the
motion in question is entirely discretionary in the individual member of Council
and is not administrative in nature.
As a result it is my opinion that there exists neither explicitly nor impliedly
authority for Council to re-delegate its powers with respect to the work activities
of municipal employees. To adopt the motion would constitute an unlawful
delegation of authority and if it were adopted I would fully expect that a judicial
challenge to it would succeed. Being an unlawful delegation of authority, the
implementation of such a resolution would also constitute an unlawful
expenditure of public funds.
The motion is legally problematic from another perspective as well — it would if
adopted be contrary to the provisions of the City Government Act which provides
in Section 14(6):
... 15
Committee of the Wbole
March 27, 2009
Re: Relationship with the Civic Administration
City Solicitor
Page 5
"The Common Council may appoint a person having suitable
qualifications as supervising director of'.all departments of the
municipal government of the said City, to be known as the 'City
Manager' or as he may be otherwise called by the Council. Such
person shall devote his whole time to the business of the city and
be paid a salary to be determined by the Common Council. He
shall exercise control of and supervision over the several directors
of the said departments, including, but not limit the generality of
the foregoing, the appointment, promotion and dismissal of
employees, and shall in all such matters be responsible to the
Common Council for the efficient administration of the several
departments; provided, however, that this section shall not be
deemed to apply to or affect the Common Clerk and the City
Solicitor of the City of Saint John who shall not be under the co-
ordination and supervision of such City Manager, but shall be
directly responsible to the Council, and the employees of these
departments shall be under the control and supervision of the said
Common Clerk and City Solicitor. " S.N.B. 1960-61 C. 130
It is abundantly clear that if individual members of Council were able to require a
City employee to pursue the question they might pose, then to that extent the
control and supervision of the activity of those employees would be beyond the
City Manager's reach. It would be a material interference with the City
Manager's statutorily determined duty and power to supervise and control — he
could hardly be accountable 'for the efficient administration cif the several
departments" if he could not determine the deployment of human resources
therein. Furthermore such an arrangement would potentially give rise to a claim
by a City Manager that his terms of employment had been frustrated by the
Council. Altogether an unacceptable arrangement.
While the adoption of the motion in question, or one similarly focused, is ill
advised from a legal perspective that is not to leave the impression that a
Councillor's every inquiry must be submitted to Council for approval. Just as
citizens might query a department head or other senior staff on an aspect of the
City's policies or operations, so might an individual member of Council. It is my
experience that when members of Council express an interest in gaining a deeper
understanding of any aspect of the City's authority, policies, structure or
.../6
Committee of the Whole
March 27, 2009
Re-, Relationship with the Civic Administration
City Solicitor
Page 6
operation that is encouraged and supported by the civic administration. That has
occurred based -upon judgments made by senior staff without any detailed or
prescriptive policy statement or legal direction. Ironically the historical practice
might have been more liberal than the law would strictly countenance.
Nonetheless, I trust that an informed understanding of the relationship between
members of Council individually and City employees will be valuable in shaping
future interactions.
Respectfully Submitted,
Jo . 4.t
u en [V
City Solicitor
The City of Saint John
Committee of the Whole
March 30, 2009
Deputy Mayor Chase and Councillors,
Subject: Management I Professional Pay Scale
The Committee of the Whole having met earlier today makes the following recommendation:
That the Management/ Professional pay scale be frozen for 2009 and 2010.
Sincerely,
Ivan Court
Mayor
@-I
SAINT JOHN RO. Box 1971 Saint John, NB Canada E2L 4L1 I www.saintjohn.ca I C.R 1971 Saint John, N.-B, Canada E2L 4L1
City Solicitor's Qfice
Bureau de Favocat municipal
Section 10.2(4)(b,g)
COMMITTEE-OF-THE-WHOLE
March 30, 2009
Committee of the Whole
of Common Council of
The City of Saint John
Mayor Court and Committee Members:
Re: Lease - Reversing Falls Restaurant
Demand for Arbitration
At its meeting on August 27, 2007 in Committee of the Whole, Council was
informed of the deteriorated condition of the theater located on the rooftop of the
Reversing Falls Restaurant. Based on the recommendations of the Building
Inspector, Council resolved that the theater be closed for public use at the end of
September 2008 and that the theater be permanently removed from the building.
At the time, Council also referred the matter to the Legal Department in order that
it may look at the possible obligations of the City under the Lease to replace the
theater. On September 7, 2007, 1 wrote to Council advising that we are of the
view that there is no obligation under the terms of the Lease to replace the rooftop
theater in the circumstances described in the letter of August 16, 2007 to the
Committee of the Whole from the City Manager.
The rooftop theater was removed sometime in 2008. By letter dated November
10, 2008, the Tenant, through its legal counsel, sought to be compensated for the
lost revenue from the theater if the City did not rebuild it. It is the Tenant's
position that the Lease imposes an obligation on the City to rebuild. The City's
position on this issue was given by letter to the tenant's counsel on November 28,
2008.
... /2
@ . ..................................... . . . ...................................... . . . . . . .......................... . . . . .. ..................... . ..
SAINT JOHN RO. Box 1971 Saint John, NB Canada E2L 411 www.saintjohn.ca I CA 1971 Saint John, N.-B. Canada E2L 4L1
Common Council
March 30, 2009
Re: Lease— Reversing Falls Restaurant -Arbitration
City Solicitor
Page 2
By letter of March 13, 2009, the Tenant requested arbitration "on issues arising
under the Lease", including "the effects on the Tenant of the loss of the Theater
andlor the failure of the landlord to provide appropriate exterior lighting" .
Pursuant to the Arbitration Act, the Tenant appointed Dwight Allaby as its
arbitrator nominee.
Pursuant to Section 40 of Schedule "B" to the Lease, "after giving notice and
demand [of arbitration], each party shall at once appoint an arbitrator". We
have given some thought as to who would be an appropriate City nominee to the
Arbitration Board and as a result suggest Willard Jenkins. Mr. Jenkins is a
partner in the Clark Drummie firm, and his practice is concentrated in the real
property /corporate /commercial area. The following is the text of a resolution
appointing Mr. Jenkins if Council wishes:
RESOLVED that Willard Jenkins is hereby appointed the City's
nominee to an Arbitration Board under the terms of a Lease
between the City as Lessor and 056975 N.B. Ltd. as Lessee.
Respectfully Submitted,
John Nugent
City Solicitor
Committee of the Whole 10.2(4)�(b)
March 30, 2009
Deputy Mayor and Councillors,
Subject: Recommended Appointments to Committees
'The Nominating Committee having rnet earlier today makes the following
recommendations:
Council Resolution to Form Committee regarding Public Inquiry of Pension Fund:
The Nominating Committee would like to discuss this issue with the Committee.
Saint John Board of Police Commissioners: to re- appoint David Emerson for a three
year term from May 24, 2009 to May 24, 2012.
Saint John Free Public Library to re- appoint Patricia Chisholm for a three year term
from March 30, 2009 to March 30, 2012.
Fort LaTour Development Authority: that Councillor 1~arren provide an update for the
Committee.
PRO bids: that Councillor Higgins provide an update for the Committee.
Sincere y,
m
Ivan Court
Mayor
SAINT JOHN P.O. Box 1971 Saint John, NB Canada E2L 40 I www.saintgohn.ca I G.P. 1971 Saint John, N. -B. Canada E2L 4L1
December 16, 2008
Dear Sir.-
At a meeting of the Common Council, held on December 1, 2008 the following
resolution was adopted, namely-,-
"RESOLVED that Council's resolution to form a committee consisting of the
Mayor and two Councillors for the purpose of providing a recommendation to Council
respecting the engagement of outside legal counsel to address the feasibility of
proceeding to a public inquiry of the pension plan under our City's legislation be referred
to the nominating committee.
Sincerely,
Elizabeth Gormley
Common Clerk
0.1
SAINT JOHN P.O. Box 1971 Saint John, NB Canada E2L 4LI i wwwsaintjohn.ca C.P. 1971 Saint John, N.-B. Canada E2L 4LI