2007-07-03_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaire
City of Saint John
Common Council Meeting
Tuesday, July 3, 2007
Supplemental Agenda
Re 5.4 Tender for Construction of Washroom Facilities - Allison Grounds
(Report Replaced)
13.0 Committee of the Whole Report - Appointments to Committees
13.2 Committee of the Whole Report - Legal Proceedings - Items Withdrawn from the
February 12, 2007 regular meeting of Council, and Letter from Frank Rodgers
13.3 Legal Proceedings - Litigation 10.2(4)(g) - The City of Saint John et al ats Terrance
Titus.
City of Saint John
Seance du conseil communal
Le mardi 3 juillet 2007
l'ordre du jour supplementaire
Alinea 5.4 Soumission relative a la construction d'installations sanitaires - terrain Allison
Grounds (Rapport remplace)
13.0 Rapport du comite plenier relativement aux nominations pour sieger aux
comites
13.2 Rapport du Comite plenier relatif aux procedures judiciaires - points retires de la
seance ordinaire du conseil tenue Ie 12 fevrier 2007 et Lettre presentee par Frank
Rodgers
13.3 Procedures judiciaires -Iitige 10.2(4)g) - The City of Saint John et autres c.
Terrance Titus.
REPORT TO COMMON COUNCIL
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M & C - 2007-210
City of Saint John
28 June 2007
His Worship Norman McFarlane
and Members of Common Council
Your Worship and Councillors:
SUBJECT: Tender for Construction of Washroom Facilities
- Allison Grounds
BACKGROUND:
The upgrade project for the Allison Grounds encompasses three separate but
related projects. The first of these, field lighting, was previously tendered and
awarded. The second aspect, for upgrading of the various sports fields has been
tendered and is being submitted for the review and award by Council, in
conjunction with this report which represents the final element of this project.
Tenders closed on Wednesday June 27, 2007 for the supply of all necessary
labour, materials tools and equipment required to construct new washroom
facilities at the Allison Grounds.
ANAL YISIS:
Five companies responded to the City's call for public tenders by submitting bids.
Staffs of Facilities Management and Materials and Fleet Management have
reviewed the tenders and have found them all to be complete in every regard.
A summary of the bids is enclosed for your infonnation and review.
Page Two
FINANCIAL IMPLICATIONS:
The total cost to construct new washroom facilities as a part of the Allison
Grounds upgrade project, if awarded to the lowest bidder, will be $100,960.00.
This is a planned project and as such funds to cover the cost of this segment of the
project are included in the Facilities Management Capital Budget for 2007.
RECOMMENDATION:
It is recommended that the tender submitted by Erb's Enterprises Ltd., in the
amount of $1 00,960.00 for the supply of all necessary labour, materials, tools and
equipment required to construct new washroom facilities as a part of the Allison
Grounds upgrade project, be accepted.
Respectfully submitted,
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David Logan, CPPB
Purchasing Agent
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City Manager
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The City of Saint John
13,0
July 3, 2007
Deputy Mayor and Councillors,
Subject: Appointments to Committees
The Committee of the Whole Meeting having met on July 3,2007 makes the following
recommendations:
Saint John Harbour Bridge Authority - to appoint Robert McDevitt for a term of 3
years to expire July 3,2010,
Harbour Station - to appoint Barbara Hutton for a term of3 years to expire July 3,2010.
Saint John Industrial Parks Commission - that upon the expiration of his present term
on December 31, 2007, Councillor Court be re-appointed until May 9, 2008; that upon
the expiration of his present term on December 31, 2007, William Leahy be re-appointed
until December 31, 2008; and that upon the expiration of his present term on December
31, 2007, William Leahy be re-appointed until December 31, 2008, or until
recommendations resulting from the Mayor's Task Force on Industrial Parks are
adopted, to apply to all the appointments listed above,
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Norm McFarlane
Mayor
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SAINT JOHN
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P,Q. Box 1971 Saint John, NB Canada ElL 4L 1 I www.saintjohn.calc.p. 1971 Saint John, N,-B, Canada ElL 4L 1
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Common' Clerk's Office
Bureau du greffier communal
P,O. Box/C.P, 1971
Saint John, NB/N,-B.
Canada E2L 4L1
www.saintjohn.ca
July 3, 2007
The City of Saint John
His Worship Norm McFarlane and
Councillors
Your Worship and Councillors,
Re: Withdrawn Agenda Items Referred to legal Session
Background
At the February 12, 2007 meeting of Common Council, Council withdrew the following
items:
11,6 Defamation Action (Councillor Ferguson)
13,7 Letter from the Secretary of the Board of Trustees, City of Saint John Pension Plan
15,1 Letter dated February 6, 2007 from Frank Rodgers
At the February 26,2007 meeting of Common Council, Council passed a resolution to
have all matters addressed to the Council pertaining to the legal action between the City
and J. Ferguson referred to Legal Session, It is unclear as to whether the items which
were withdrawn from the agenda on Feb 12 were to be considered matters pertaining to
the legal action and come back before the Committee as directed in the February 26
resolution,
Second and third letters dated June 3 and June 26, 2007 dealing with the legal action,
were received from Mr, Rodgers, and in compliance with Council's resolution to refer
such matters to Legal Session, the letters are attached for the Committee's
consideration,
Recommendation: That the Committee of the Whole decide how it wishes to dispose
of the letters from Mr. Rodgers, and if the withdrawn items are to be considered or
remain as items not to receive Council's or the Committee's consideration,
S:@incerelY
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Elizabetn G-ormley
Assistant Commo erk
Attachment
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June 3, 2007,
The Common Council of Saint John,
Your Worship and Councillors,
At the Council meeting of February 12,2007 there were letters from concerned citizens
placed on the agenda regarding the Pension Board dispute and the conflict of the City
Solicitor. Those letters were "withdrawn from the agenda" by Council resolution. With
that unusual action by Council, the questions that it raises are: Where are the letters?
What authority does the Common Clerk have to retain this correspondence? How can
these letters be part of the official Common Council record? Most importantly, it raises
the following question, Did Council believe that any and all problems connected with the
Pension Board dispute would somehow disappear by ignoring the letters from the
citizens?
Then at the subsequent meeting of Council on February 26, an unsuccessful attempt was
made by Councillor White "that all matters submitted to Common Council in relation to
the legal action between the Saint John Pension Board and J. Ferguson be held in the
Common Clerk's office until the issue is finalized," Instead a referral to Legal session
was used to move the discussion from the public session, without any consideration of
the fact and law that Legal session is for Council discussion with the City Solicitor
involving the legal liability of the City,
This action by Council coupled with the Pension Board's decision to appeal a Court
decision that confirms and protects the qualified privilege of elected public officials, and
says that the Pension Board would not succeed against the elected official, should be a
concern to local government throughout the province and the country, In the appeal, the
Pension board is attempting to limit this privilege, Like the privilege of elected officials
at the Federal and Provincial levels of government, qualified privilege at the local level is
a fundamental part of the cornerstone to democracy, It was not a whimsical move on the
part of Lenin that his first official act in taking power was the abolition of all offices of
all Mayors,
The appeal by the Pension Board which included the approval by the Mayor and the two
elected Councilors who are all members of the Pension Board by virtue of their elected
Council membership, defies reason and makes it an obvious personal matter at public
expense. To put their personal aim and satisfaction above their rights that have devolved
over time to them as elected officials for the common good, is to confuse roles by not
only trying to serve two masters but forgetting that the primary role is to serve the
Council,
Free speech and democracy are closely tied, and this is no more evident than the privilege
granted to elected officials in the deliberate and discussion of public policy combined
with the questioning that is central to a citizen-based society,
John Ralston Saul points out in his book, "The Unconscious Civilization" that this
Council and all elected officials in the free world are enjoying rights and privileges
together with the citizens because the Greek poet-playwrights 2,500 years ago talked in
their plays "of the free tongue as an essential democratic element." In the light of the
previous treatment by Council of the citizens' letters on this subject, I am not too
confident that Council will come to the realization that the recent court decision was in
the interest of Council and the Councillors as they carry out their primary function on
behalf of all citizens, The Court decision was to the benefit of all Councillors because
qualified privilege is necessary in order for a Councillor at a duly constituted meeting to
properly fulfill his or her role in a democratic process.
An opposite finding by a Court would have a chilling effect on many aspects of the
democratic process that we have come to take for granted at the local level of government
as citizens watch, write letters, and take part in the political process as it moves forward,
Because of the blindness on the part of Council to these important considerations, and
refusal to become involved from the standpoint of Council's own interest together with
the momentous consequences flowing from a restriction to the present law on qualified
privilege, I am sending a copy of this letter to Democracy Watch,
Yours truly,
Frank Rodgers (verified by phone) EG
cc: The Telegraph- Journal
Democracy Watch, Ottawa,
June 26, 207,
The Common Council of Saint John,
Your Worship and Councillors,
My letter to Council of February 4,2007 dealing with the conflict-of-interest ofthe City
Solicitor was withdrawn from the agenda by a Council resolution at its meeting of
February 12 under the guise of it touching on the Pension Board dispute. I have been told
by the Clerk that my later letter to Council of June 3, 2007 dealing with the qualified
privilege of Councillors was not placed on the agenda for the June 18 meeting because of
a heavy agenda. In the circumstances this decision is troubling, especially when the
Council meeting adjourned early in the evening. To add to this questionable reason for
holding my letter from Council, the Clerk informed me that my letter would not go on the
open session agenda but would be sent to the Committee meeting of the Council on July
3.
The authority the Clerk is using for sending my letter to Committee is the Council
resolution of February 26,2007 which referred the Pension/Ferguson correspondence to
Legal session, By some unknown means the Clerk knows the intention of Council and
has interpreted the referral to Legal session to be instead to Committee, There is no
authority coming from the February 26 meeting to hold future correspondence in the
Clerk's office or send it to Committee, Councillor White's motion was defeated, The
rules governing referral motions are clear. It is the motion or subject that has been
referred, Referral is the key word and a referral motion of a defeated motion is not a
policy decision for the future guidance of the administration,
The Council action to date shows a Council not interested in the Pension Board dispute,
To make an attempt to penetrate the prevailing group spirit, this letter is particularly
directed to the Deputy Mayor and the six other Councillors who are not on the Pension
Board or involved in the dispute, This clear majority should have no interest but the
common good of City, For this reason, this clear majority of Council should officially
request the members of the Pension Board to take no further action and accept the
positive judgment of the Court, A moment's reflection will reveal how the qualified
privilege of Councillors, preserved by a Court of Law serves that common good, The
insight and far sight of the brilliant judgment of Mr. Justice McLellan, who with legal
precedent, took a 200 year old human practice connected with defamation which has
since been outlawed, and brought it forward to a case of wrong desires of the present day
shows only that laws have changed but human nature is the same.
Furthermore, the clear majority of Council should ask the City Solicitor to resign from
the Pension Board, There is potential for many intricate legal questions connecting the
Council to this dispute and the Legal department can only be paralyzed by the City
Solicitor being a member. Because of the holding on, there is undoubtedly some question
now about the effectiveness of a resignation in so far as it relates to this dispute.
However, by Council requesting the City Solicitor to resign shows Council's awareness
of the danger of the City Solicitor serving on City Boards connected with the City. The
independence of the Legal department can be diminished by imperceptible action and not
noticed until the erosion has advanced too far. The preserving of the independence of the
City Solicitor and the Legal Department is as important as preserving the qualified
privilege of the Councillors,
Yours truly,
Verified by phone EG
Frank Rodgers
City Solicitor's Office
Bureau de l'avocat municipal
P,O. Box/C,P, 1971
Saint John, NB/N,-B,
Canada E2L 4L 1
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www.saintjohn.ca
PRIVILEGED & CONFIDENTIAL
The City of Saint John
Section 10.2(4)(2)
COMMITTEE OF THE WHOLE
June 29, 2007
Common Council of
The City of Saint John
Your Worship and Councillors:
Re: The City of Saint John et al ats Terrance Titus
S/C/610103
Mr. Terrance Titus, the owner of 119 Church Avenue, experienced a sewer
backup in his basement late in December of 2000. In the summer of 2002 he
began a Small Claims action against the City of Saint John, Enbridge Gas New
Brunswick Inc. and H.E.F. Industries Ltd. alleging $7,800 in damages. He
abandoned the damages in excess of $6,000 in order to allow the matter to be
dealt with in Small Claims Court. The City's insurer was notified of the claim
in accordance with standard practice and in the course of investigation, it was
confirmed that Enbridge Gas had ruptured the City's sewer line near the
intersection of Church Avenue and Dever Road. This was the effective cause,
we believe, of the sewer backup in the Titus property. The damage by
Enbridge had occurred as a result of directional drilling for its natural gas
pipeline undertaken by a company identified as H.E.F. Industries Ltd.
The cost incurred by the City in repairing the damaged sewer line was
approximately $19,300.00, well beyond the $6,000 limit at the time for matters
able to be dealt with in Small Claims Court. Since the defence against the
Titus claim and the pursuit of the City's damages were so closely linked it was
agreed that the cost of the defence to the action against the City and the
counterclaim by the City against Enbridge Gas and its contractor, H,E.F.
Industries, be split equally between the City and our insurer. This arrangement
was advantageous to the City because otherwise we would have been burdened
by the entire cost of proceeding against Enbridge and H.E.F.
... 12
Common Council
June 29, 2007
City Solicitor
Page 2
Re: The City of Saint John et al
Enbridge paid the Titus claim with the understanding that it would attempt to
recover that amount from the City. Titus discontinued his claim and the
counterclaim by the City was moved to the Court of Queen's Bench because of
its size.
The Barry Spalding firm was appointed to defend the City and was directed by
this office to represent the City in our claim against Enbridge and H.E.F. Mr.
Donald Keenan of that firm advised me late last week that the matter was
scheduled for trial on Thursday, June 28, 2007. He also advised that a
settlement offer has been made verbally on behalf of the Defendants in the
amount of $25,000.00. His recommendation is to accept the offer and his
reasoning is set out fully in an email to me dated June 26, 2007. In short, the
amount offered is within" .., $1,500 of your best likely recovery and it will
eliminate the risks of trial. "
I concur in his reasoning and accordingly recommend that Common Council
adopt the following resolution at the open session meeting of July 3,2007:
RESOLVED that the claim brought by the City against
Enbridge Gas New Brunswick Inc. and H.E.F. Industries Ltd.
(S/C/61 0/03) be discontinued in consideration of the payment of
$25,000 to the City and that the Mayor and Common Clerk be
authorized to execute associated documentation approved by the
City Solicitor.
Respectfull y Submitted,
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