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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, . ar w. 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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