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2012-04-10_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaire (2).7 neSJ City of Saint John Common Council Meeting Tuesday, April 10, 2012 Location: Common Council Chamber Supplemental to Agenda 5.14 Agreement of Purchase and Sale — Imperial Oil Ltd. — 170 Broad Street — PID 00000075 12.0 City Manager: Plan D Budget 13.0 Committee of the Whole: Release of Barry Spalding Legal Opinion 13.7 Committee of the Whole: Saint John Development Corporation 5, 14 AGREEMENT OF PURCHASE AND SALE The Purchaser agrees to purchase from the Vendor and the Vendor agrees to sell to the Purchaser an easement for municipal services in and through the Vendor's Lands designated Pit) 00000075 upon the following terms and conditions: Vendor: IMPERIAL OIL LTD.; 90 wynford Drive Toronto, ON M3C 1K5 Attention: Real Estate Manager, Surplus Properties Purchaser: THE CITY OF SAINT JOHN P.Q. Box 1971 15 Market Square SaintJohn,ND E21.41.1 Attention: Common Clerk — Premises: Portion of PID # 00000075 Comprising 1,184 sq, m. +/_ Designated as Parcel E -1 on a Kierstead Quigley and Roberts drawing number 3084 dated March 16, 2011. (Photo - reduced copy of said drawing attached hereto as Schedule W) Purchase Price: $19,463.00+ HST if applicable, payable as follows: Early Access: S600,0 6 Total: $200063.00 Deposit: $10,000.00 payable upon adoption of Common Council Resolution Balance: $10,063.00 on Closing MAY Closing Date: On or before 31, 2012. ��. 1, The Purchaser shall for the Purchase Price and such additional consideration asset out in clause 2, acquire from the Vendor an easement and rights in the Premises at the cost, risk and expense of the Purchaser, by its officers, servants, agents, contractors and workers, to enter the Premises with machinery, materials, vehicles and equipment and to construct, alter, maintain, inspect and repair underground water mains or pipelines, storm sewers, sanitary sewers or any like municipal works including all related works appurtenant thereto, promptly restoring as far as is practical the surface of Final March 6, 2012 the lands to the same conditions as it was prior to the commencement of the work or excavation, together with the right by action or otherwise at any time to enjoin the Vendor, including the heirs, executor, administrators, successors and assigns of such Vendor from erecting or locating on the Premises any building, structure or other obstacle which could impair the free and full use of the easement or permitting the erection or location thereon of any such building, structure or other obstacle. The Grant of Easementshall be substantially in the form attached hereto as Schedule "B ". 2. (a) As consideration, in addition to the Purchase Price, the Purchaser shall, at Closing, provide to the Vendor a Release and Indemnification in the form attached hereto as Schedule "C ". (b) The Purchaser's solicitor shall provide to the Vendor, at Closing, an opinion that the Purchaser has the legal authority to enter into this proposed Agreement of Purchase and Safe with Release and Indemnity as set out in Schedule "e ". 3. The Purchaser accepts the Premises on an "as Is, where is" basis, in its present condition, without any warranty or representation whatsoever on the pan of the Vendor. 4, The Purchaser may examine the title at its own expense within sixty (60) days following the Purchaser's acceptance of this offer. If within that time any valid objection to the title is made in writing by the Purchaser to the Vendor which the Vendor shall be unable or unwilling to remove within twenty (20) days of notification of such objection or objections and which the Purchaser will not waive, this agreement shall, notwithstanding any intermediate acts or negotiations in respect of such objections, be null and void and any deposit shall be returned by the Vendor without interest and the Vendorshall not be liable for any costs or damages. Save as to any valid objection so made within such time, the Purchaser shall be conclusively deemed to have accepted the title of the Vendorto the Premises. S. (i) The Purchaser shall prepare at its cost any Plan of Survey required; (ill All plans and documents shall be in registerable form, and (lit) The Purchaser shall reimburse the Vendor $500.00 for outside legal fees expended by the Vendor to finalize this conveyance. 6. If the Purchaser defaults in the closing of the sale under the terms of this Agreement, any money paid hereunto shall be forfeited to the Vendor by way of liquidated damages and the Vendor shall have no further recourse. Final March 61 2012 Avk.,t tb, 7. This offer shall be irrevocable by the Vendor until 4.,ODp.m. local time on AktCl 95% 2012 and upon acceptance by the Purchaser shall constitute an Agreement of Purchase and Sale binding upon the parties hereto. S. This offer when accepted shall be read with all changes of gender or number required by the context shall be binding upon the parties hereto, their respective heirs, executors, administrators, and assigns, and time shall in all respects be of the essence hereof. 9. AND FURTHER, the parties agree that, upon acceptance by the Purchaser, the Purchaser, by its authorized representatives, and with such equipment as may be necessary has a right of access to, in and upon the Premises at any time provided such right is exercised with as little disturbance as possible to the Vendor for such purposes and pursuant to the terms hereinafter set out: a) The right of access is to allow the Purchaser to make improvements to the City of Saint John sewerage system; b) Any entry to, in and upon the Premises shall require 24 hours prior written (e -mail) notice to the Vendor; c) Any entry by or on behalf of the Purchaser shall be at its risk, cost and expense; d) The Purchaser for itself and its authorized representatives hereby indemnifies and saves harmless the Vendor from and against all matters arising by reason of the Purchaser exercising its right of access granted herein. IN WITNESS 444 WHEREOF the Vendor has caused these presents to be executed this 7 day of (�ORi� 12012. IMPERIAL OIL LTD. 111.1 _ _ ___- Fina I March 612012 AND the Purchaser has caused these presents to be executed this_ day of 2012. THE C17Y OF SAINT JOHN Mayor Common Clerk Common Council Resolution: Final March 5, 2012 SCHEi: m W jig Ing At cYts I! el r° .4- i i t� 1pj {� i�ijee Rai; g0.�7Ii� fro s� el �'- ° Fl �:!.i�zi�'•# ti i:Fiid! da.:� �t s� f:1 r i ii et � a IpI f ! '' I wit A 91 MIZ tw `ia ml "Tb4 �uP n en } 43�oM M E4 nnuu i ee ii;3aY0�iti8ai if x12"m,i5$11 �' ► MW This Indenture made this day of 2011. BY AND BETWEEN: IMPERIAL OIL LIMITED, having Its registered 01009 at 90 Wyrdord Drive, Toronto, Ontario, M3C 1K5, an extra - provincial company, herelnafter called the •Grantor• -and- OF THE FIRST PART THE CITY OF SAINT JOHN, having Its City Hall at 15 Market Square, P. O. Box 1971, Saint John, New Brunswick, E21. 41.1, a body corporate by Royal Charter, confirmed and amended by Acts of the Legislative Assembly of the Province of New Brunswick, hereinafter called the •Grandee• OF THE SECOND PART WHEREAS the lands and prenfrses which are the subject of this easement (the •Easement ParceP) forth part Of the lands and premises conveyed to the Grantor by dead dated _ registered In the Saint John County Registry Office on In Book __ at Page ` as No, AND WHEREAS the Grantor has agreed to provkte to the Grantee an easement over the Easement Parcel upon the terms and conditions hereinafter set forth; AND WHEREAS the Grantee has authorized the acquisition of the easement In a resolubon adopted at a meeting of the Common Council of The City of Saint John on 2011; NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the sum of One Dollar ($1,00) of lawful money of Canada, the receipt whereof it hereby acknowledged, the Grantor has given and granted and by these presents does give and grant unto the Grandee, its successors and assigns, an easement and rights at the cast, dsk and expense of the Grantee by its officers, servants, agents, contractors and workers at any time to enter upon the Easement Parcel with machinery, materials, Vshides and equipmant and to construct, after, maintain, Inspect and repair underground water mains or Pipelines, storm sewers, sanitary sewers or any We muridpal works Including all related works appurtenant thereof, promptly restoring as far as Is practicable the surface of the Easement Parcel to the some condition as it was prior to the commencement of the work or excavation, together with the right by action or otherwise at any time to enjoin the owner of the Easement Parcel, including, heft, executors, administrators, successors and assigns of such owner from erecting or locating on the Easement Pascal arty building, structure or other obstacle. The Easement Parcel is described In Schedule A hereto annexed TO HAVE AND TO HOLD the same unto and to the use of the Grantee, Its successors and assigns, FOREVER, subject to the terms and conditions hereinafter set forth. 2 - The Grantor shell have the right to use the Easement parcel for all lawful purpose, autilect only to the restrictions hereinbefore set forlh. THIS INDENTURE shah enure tD the benefit of and be binding upon the parties, thereto their respective successors and asslgns. IN WITNESS WHEREOF the parties hereto hove caused these presents to be duly executed the day and year first above written. SIGNED, SEALED & DELIVERED In the presence of: IMPERIAL OIL LIMITED And: THE CITY OF SAINT JOHN Mayor Common Clerk Common Council Resolution: All that certain lot, piece and paroel of land situate, tyros} and being in the City of Saint John, in the County of Salm John, In the Province of New Brunswick, known and distinguished as comprising _� entitbd square meters as shown on a plan of survey (Dwg. No. dated and forming part hereof. 'Plan of Survey Showing Easement City of Saint John, Saint John County, N.B.' prepared by attached RELEASE AND INDEMNITY KNOW ALL MEN BY THESE PRESENTS that in consideration of the sum of One Dollar ($1.00) of lawful money of Canada and other good and valuable consideration, being the granting of an Easement from Imperial Oil Limited ( "Imperial") to The City of Saint John (the "City ") in respect of lands designated PiD Number 000075 located on Broad Street, in the City of Saint John, New Brunswick (the "Lands "), the receipt and sufficiency of which is hereby acknowledged, the City, for itself and its successors and assigns and to the fullest extent permitted by law, hereby releases and forever discharges Imperial, its subsidiaries, partners and affiliates and their respective directors, officers, employees, agents, representatives, successors, successors in title and assigns (the "Vendor Indemnified Parties ") from and against any and all losses, costs, claims, demands, expenses, proceedings and actions of every nature and kind for injury or damages to the City or its property which are or may be in any way related to, or connected or associated with the City installing and operating sewer infrastructure upon the Lands (the "Work's saving and excepting such loss, costs, claims, demands, expenses, proceedings and actions of every nature and kind for injury or damages caused by the negligence or omission of Imperial which may occur after the date hereof. The City hereby agrees to be liable for and, in addition, indemnifies, defends and saves harmless the Vendor Indemnified Parties from and against any and all losses, costs, claims, damages or expenses suffered or incurred by, or asserted against, the Vendor Indemnified Parties, or any of them, resulting from the City's use of the Lands, including without limitation, the performance of the Work. _2. This Release and Indemnity shall extend to and enure to the benefit of the Vendor Indemnified Parties and each of their successors, including without limitation, successor in title to the Lands. Should any part of this Release and Indemnity be determined to be void, prohibited or unenforceable under the laws of the Province of New Brunswick such part shall be severable the extent of such voidance, prohibition or unenforceability, without invalidating or otherwise limiting or impairing the remaining provisions of this Release and Indemnity. IN WITNESS WHEREOF the City has caused these presents to be executed this day of 2012. THE CITY OF SAINT JOHN Mayor Common Clerk Common Council Resolution: 2012 REPORT TO COMMON COUNCIL 5 April 2012 His Worship Ivan Court and Members of Common Council Your Worship and Councillors: SUBJECT: Plan D Budget Background During the course of budget deliberations and consideration of the pension reform Common Council directed the City Manager to develop a fall back budget to be app event that the pension reforms were not implemented. The City currently has fully budgeted for the current service cost for pension contribut both the General Fund and Water Utility. Council also adopted the so called B Bud substantially increased the available funding to cover past service pension costs. Briefly, the estimated total required annual pension contribution without pension estimated at $26.4M. (Note; this is an order of magnitude estimate based on a project going concern liability) The City has through the General Fund and Water Utility t total contribution of $22.7M leaving the City exposed to an approximate $4.QM shortf is no reform. The City is actively working with Provincial staff to finalize the needed pensic submission. The principle objectives of the reform package are to render the plan both and sustainable over the long -term. A core component of the submitted refon suspension of accrued indexing for both active and retired plan members. Draft leg funding policy, a revised Statement of Investment Policies and Goals and a multi Risking strategy have been submitted to the Provincial regulator. Current discussions have focused on adjustments to the submitted reforms to ensur suspended benefits can be reinstated within a satisfactory time period. A submissi cnrina eittina of the 1r-o dntim- rpmninc the nrinritt, The Methodology Identifying additional sustainable expenditure reductions has proven challenging in 1 cuts already adopted in the so- called Plan B budget. The senior management team d broad range of ideas and suggestions ranging from the mundane to very complex pro would require considerable analysis. It quickly became evident however that it is appropriate to simply consider reductions in the number of positions but more imp focus on the level of service that can or should be provided in each service area. Defining specific service levels is important in terms of the finite capacity of each opt to deliver services. It is also fundamental to ensure that the public is fully aware of wl service they can reasonably expect to receive for their tax dollars. A service based approach will also promote enhanced accountability by allowing dep-, measure outcomes against the established standards. Fortunately the City has alrt considerable progress in developing a service based budget approach and this informal used as a reference point for future decisions. The staff review took into consideration the stated Council priorities, the community': for user fees, the service impact on citizens, the sustainability of the proposed redu timelines for implementation and the need to adequately protect the assets of the taxpa,1, More specifically this included Council's stated desire to limit reductions to planning enforcement services, maintaining a commitment to road maintenance, implementation of P1anSJ, moving forward with the improvements to the watt acknowledging that fee increases are not a sustainable solution, minimizing overhead avoiding a tax rate increase. The overall magnitude of additional service cuts on top of the previously approve reductions means that some difficult compromises will be necessary. A Multi -Step Approach Step 1 In order to protect the City in the event that some portion of the pension reforms are i is prudent to identify an initial round of service reductions that can be applied if warran The first layer of expenditure reductions would involve $2.OM and include the elim approximately 15 permanent positions. Achieving this number of reductions is predi part, on developing a targeted retirement incentive program. A low cost, limited retirement incentive to help offset some of these costs could be a way to encourage retirements and immediately lower operating costs. The eligibili service areas, cost, impact on the pension plan and potential savings would b determined and a program approved by Council. The cost would be offset by the wage savings for each position. The development of an incentive program forms recommendations in this report. The retirement incentive is intended to realize a reduction to the establishment and would be implemented using a service based apprm In addition, the first layer of cuts would involve additional reductions in fire services, in engineering capacity, savings in IT costs, the elimination of the fluoride program in Utility and reductions in overtime costs for call outs to respond to after -hours water lea It should be apparent that each of these expenditure reductions will involve a c reduction in services to the public. Two other layers of potential reductions are available for consideration. Each layer I significant impact on services to the public (directly or indirectly) and eventually culm potential tax rate increase. As with the first layer it is unlikely that these proposals u be drawn upon, however they are available for consideration should the need arise. Staff note that while these efforts mpay reduce costs a narrow focus on reducing ex enditures as opposed to focusing on the desired service outcomes is a sub-optimal effectively manage _both long—term costs and service delivery. A more systematic a� proposed in the next step. Step 2 As noted earlier in the report the focus of any additional reductions must ent understanding of the service impacts. This in turn raises the more fundamental qu exactly what core services the taxpayer should expect from the City as well as the I level of those services. Other issues to clarify include what level of resources ar required to provide the desired level of core services, what ancillary services are de,, not essential and again what level of service should be made available. Finally, th which services are more appropriately funded outside the tax rate from fees or other revenue should be explicitly addressed. The answers to these and other fundamental questions require more than a cursory ex but properly addressed would provide a sound starting point for future Council deli This type of analysis would also provide a meaningful reference point for the 201. discussions. As it is now, the singular emphasis on a stable tax rate simply means less the public over time as costs for asphalt, insurance, wages, rent, vehicles etc contin unabated. A core services review is a best practice used in municipalities to ensure a strateg making approach directly linked to community and Council priorities and outcomes. of review could also result in the identification (and potential elimination) of servic beyond municipal mandates, are no longer affordable or can be delivered throul innovative model. For example there is the potential for community partnerst established to support delivery of services and better integration of services wit partners e.g, the inclusion of the Libraries in community centres, private partner operations, Uptown SJ providing local improvements etc. Some of the service questions that could be addressed in the review could include — u solid waste services, extent of sidewalk snow removal provided by City forces, the n 293 contract provision and City funding to various ABCs. An equally important coi would be the application of the P1anSJ principles in terms of the levels of services to b in the primary development areas versus the services to be provided outside these area, The scope and timing of the review are important aspects of such an undertaking timely report would serve as an important tool during the next round of budget de . irrespective of the outcome of the pension reform process. It would also serve to rei implementation of the PlanSJ principles and achievement of the desired outcomes. Step 3 Expenditure reductions and a Core Services Review would be futile efforts if at the the City continued to add new programs or increase the level of services being provit are suggesting that that no new programs or service enhancements be introduced until of the Core Service Review and Pension Reform Initiative are known. Step 4 Concentrating on a systematic determination of core services and ensuring that these st then delivered in an effective and efficient manner is a significant effort. It is hove essential to address the revenue side of the ledger. The City, like other municipalities, dependent on the property tax regime and the unconditional grant transfer to fund open cut in the unconditional transfer would require an offsetting reduction in services or a in the tax rate in order to maintain services. The Province is actively pursuing initiatives to reform both the property assessment s: the unconditional grant transfer mechanism. The City must take an active part deliberations in order to ensure that our policy and financial interests are fully consider of the municipal reforms. Pension Reform Conclusion Staff have identified potential cost reductions to be applied in the event that there is reform. One element of the proposal is to encourage retirements for those empl, already qualify for retirement and it is prudent to begin to develop a limited incentiv A narrow focus on line item expenditures is not however an effective means of addre fundamental long -term service /capacity and tax rate decisions. A more systematic approach to cost control and service provision in the form of a Co; Review is being recommended as a means of determining both the types of sere provided by the City in the future and the nature and extent of those services. Tl review would also open the door to more innovative service delivery options and significant tool for the 2413 budget and tax rate deliberations. While we must look for cost savings and efficiencies it is equally important that existing revenue base not be allowed to diminish. Protecting our financial interests in ongoing provincial reforms will also be necessary. Recommendations That Common Council directs the City Manager to; • develop a targeted retirement incentive program for Council's consideration, and • draft a scope /outcomes /timing report for a comprehensive core services review, and fat • that no new programs or service enhancements be introduced until the outcome of tl reform process and core service review is known with certainty, and • that the City actively seek out opportunities to advance its policy and financial inter( the municipal reform process. Res ectfiilly submitted, .1 )j, trick Woods CGA City Manager $2.OM 10 Retirements $600k (incentives) 2 Engineer positions 220 PC Support 45 Telecomm 55 — reduce # units Transportation 250 —storm water CHIRP 65 — HR position Communication 40 - biannual survey Fire contract 115 - Pt Lepreau Heritage Funding 90 —grant program Fire Investigation 30—OT Equip Storage 10 DC Fire 130 Sommerset CC 150 - closure Water Utility Fluoride $150 OT water leaks 50 Total $2,000,000 $2.OM Parks 100 Police 250 Rec 100 Growth & Dev 140 Asphalt Maint 400 Engineer Position 105 Comm UE 150 Fire - tanker 360— eliminate ? ?FUS IT Warranties 40 - risk Heritage Consery 200 Water Utility Capital Operating $155 Total $2,000,000 Notes Notes Retirements based on incentives -- number and Consolidation of parks /playgrounds, reduced specific impact unknown — voluntary program based road repair, most projects impacted with loss on city paying 100% HDL coverage for 5 years of legaVengineering support, significant loss of $2.OM 3.0 cent Tax Increase Or consider Sport Subsidies Regional Facilities 20% Close East /West Libraries Limit Sidewalk Plowing Re- negotiate City Hall Leasf Summer Playground Progra User Pay for Solid Waste Zoo Privatize an Arena Clerk - mgmt position Solicitor Water Uti Meter Revenue $. Sell 49% stake SJE to fund C Total Notes Approaching $12M in total i sustainability a concern, altf arenas & comm centres. cot April 10, 2012 Your Worship, Deputy Mayor and Councillors: Subject: Committee of the Whole - Barry Spalding Lawyers October 18, 2007 Le Opinion Regarding City of Saint John Pension Plan The Committee of the Whole, having met on April 10th, 2012 adopted the following re: "RESOLVED that the Committee of the Whole recommends that the legal opinion fror Spalding Lawyers to Common Council entitled Opinion Regarding City of Saint John F Plan, dated October 18, 2007, be made available to the public; and further that this ite added to Council's open session agenda later this evening." Respectfully Submitted, Jonathan Taylor Assistant Common Clerk Saint John Office Delivery Address: Mercantile Centre 55 Union Street, Suite 710 Saint John, NB Canada E21L 5B7 Mailing Address: P.O. Box 6010 RPO Brunswick Square Saint John, NB Canada E2L 4R5 Tel: 506.633.4226 Fax: 506.633.4206 Toll Free: 1.888.743.4226 Bureau de Saint John Edifice Mercantile Centre 55, rue Union, Bureau 710 Saint John, N. -B. Canada E2L 5B7 Adresse Postale: C. P. 6010, SPA Brunswick Square Saint John, N. -B. Canada E2L 4R5 T646phone: 506.633.4226 T616co pieu r: 506.633.4206 www.barryspaiding.com October 18, 2007 DAVID G. O`BRIEN Direct Dial: (506) 633 -42 Direct Fax: (506) 652 -78 E -Mail: daonbaL7aspaldi NADIA M. MACPHE Direct Dial: (506) 633 -42 E -Mail: nmingbainspal� The Common Council of the City of Saint John 15 Market Square, 10th Floor City Hall Building Saint John, New Brunswick E2L 4L1 Ladies and Gentlemen: Re: Opinion Regarding City of Saint John Pension Plan Our File No: 14184 -1 This letter will serve as our opinion in response to the questions whic pertaining to various aspects of the City of Saint John Pension Plan, . litigation involving Councillor Jolu1 Ferguson. FACTS (a) Members of the Board of Trustees of the City of Saint John P both as individual Plaintiffs and in the name of the Board itsel legal action against Mr. John Ferguson, a member of Common Cc Court of Queen's Bench of New Brunswick alleging defamation c (b) In the Statement of Claim which was filed to initiate the lawsuit, 1 allege that John Ferguson made various statements both du: Barry SPa111b further allege that the statements, taken separately and as a 'A understood to mean that the Plaintiffs "were derelict in their dutie attempting to deceive members of Common Council, employee., Pension Plan, and the public" (para.18). The Plaintiffs further alle Ferguson made statements in a newspaper article to the same effect (d) In a Statement of Defence filed by his solicitor, Mr. Ferguson den the statements alleged, (he admitted making them for the purp Application to Mr. Justice McLellan, but only for the purpo Application), and he further pleaded in the alternative that if the alleged were actually made by him, they were justified (i.e., t protected by the defences of qualified privilege or fair comment. (e) Mr. Ferguson moved for summary judgment. He relied particul defence of qualified privilege, and took the position (quotes McLellan) that the statements were made by him "as an electec Councillor on occasions of qualified privilege in the discharge o duty in good faith and without malice, without any intention to h (decision of Justice McLellan, 2007 N.B.Q.B. 175, para.6). (f) On May 17, 2007 Justice McLellan granted Mr. Ferguson's summary judgment. (g) Summary judgment is a procedure which is available by virtue of the Rules of Court of New Brunswick. It provides that a Def apply for summary judgment "... on the ground that there is no action, or to one or more claims therein, or to part of any such c 22.01(3)). The rule which allows "summary judgment" was deve innocent parties and the system of meritless actions, and frivolous defences. In Cannon v. Lange (1998), 203 N.B.R. (2d) 121 Justice Drapeau (now the Chief Justice of New Brunswick) explaii "... the Court may grant judgment only where there is r. merit to the defence or no merit to the claim, or part thereo The wording leaves no room for anything but a vet stringent test. Practical experience with the civil prose: incr,irarl the trial laxxnTPYQ and irnrlaPe w1in drafted Rule 77J Bar rk7 Spardinb through the trial process: Vye Construction Ltd. v Russell N.B.R. (2d) 16 (Q.B.). Summary judgment should be granted onl no reason for doubt as to what the judgment of the Court woul matter proceeds to trial. The case of the party moving foi judgment must be unanswerable: Ripulone v Pontecorvo N.B.R. (2d) 56 (C.A.). In his decision, Justice McLellan concluded as follows (para.16 "Without proof of bad faith, deliberate lies, malice o intention to harm, the law is settled that the statements of member or of a municipal council on municipal matters ar protected from defamation actions by the principle o qualified privilege. Thus, the defense of qualified privilege i available to Mr. Ferguson in this action." Mr. Justice McLellan went on to conclude that in his opinion, the qualified privilege "is so strong in this case that the Plaintiff s act . defamation is clearly without merit." He then stated there was nc doubt as to what the judgment of the Court would be if it procee and granted summary judgment, with costs to be assessed. (h) Justice McLellan's ruling is the subject of an appeal to the Court c New Brunswick by the Plaintiffs. The case has been scheduled f( on Tuesday, October 30th 2007, before Justices Daigle, Rol Richard. (i) The three - member panel of the Court of Appeal may make immediately following hearing of the Appeal. Alternatively "reserve" the case to give further consideration to it before issuil decision. ISSUES We have been asked to consider the following issues by Common Council: Spardingr their having retained Clark Drummie to initiate a defamation action agains Ferguson. The members of the Pension Board have decided to proceed against Ferguson through the Courts by filing a defamation lawsuit, as a means of their individual and collective reputations as a result of his alleged remarks. Does filing a defamation lawsuit constitute an attempt to "silence opposition In R. v. Pilar-inos, 2001 BCSC 1332 (CanLII) Madam Justice Bennett Supreme Court made the following insightful conunents about the role of I para. 154. What then is the purpose of the courtroom? Many writers have art described the purpose or nature of the courtroom. The purpose f values such as a fair trial before an impartial and independent judo is the source of the proper administration of justice. It is a place w zens can bring their disputes and know that the rule of law will be The courts are the foundation of a civilized world, where citizens d come vigilantes and take matters into their own hands. In our opinion, there is certainly no legal impropriety in the Plaintiffs see] via the Courts. If, following the Appeal or following any subsequent tri arise (depending on the result of the appeal), the Plaintiffs` legal action is without merit, then the Plaintiffs will have to bear the attendant cost co: Should Councillor Ferguson be found ultimately to have defamed the F individual constituent members, he will be ordered to pay damages repro hann done by his comments to the reputations of the Plaintiffs, together costs. The judiciary is an independent branch of government and a formal inqu decision to bring an action, which would presumably examine the merits of would inevitably involve answering the question "was a lawsuit justified ?" r that question will already be answered by the judges, or by judge and jury, appeal and trial process. . a R.1: i Spalding to the Court seems just, all such remedies whatsoever as any of th thereto may appear to be entitled to in respect of any and every leg uitable claim properly brought forward by them respectively in su or matter, so that as far as possible all matters so in controversy bet said parties respectively, may be completely and finally determines multiplicity of legal proceedings concerning any of such matters av4 In our opinion, there is no need for an independent inquiry to ei Plaintiffs' decision to retain Clark Drummie as the lawsuit will ultim,, be settled between the parties, or resolved one way or the other by according to the terms of the Judicature Act. 2. What is your advice on the issue of the City's insurance policies r member of Council being the subject of an action and the r between those policies on the one hand and the provisio Municipalities Act that bear upon the same subject on the other ha We intrepret this as a question seeking general information on the lega involved. Obligation to reimburse The Municipalities Act, c. M -22, R.S.N.B. 1973 provides as follows: 85.1(1 )Except in relation to an action by or on behalf of the municil which case the approval of The Court of Queen's Bench of New Br must first be obtained, a municipality may indemnify a member o member of council, an officer or former officer of the municipality ployee or former employee of the municipality or a member of member of a committee, board, commission or agency established i cil ... against all costs, charges and expenses, including any amoun settle an action or satisfy a judgment, reasonably incurred by him 4 relation to any civil... action or proceeding to which he or she is ay by reason of being or having been a member of council, an o employee of the municipalit y or a member of a committee board t Bal'.1.: V Spalding 85.1(2)Notwithstanding anything in this section, a person referred t section (1) is entitled to indemnity from the municipality in relati costs, charges and expenses reasonably incurred in connection wit] fence of any civil, criminal or administrative action or proceeding to which that persor a party by reason of being or having been a member of council, an c employee of the municipality or a member of a committee, board, sion or agency established by council if the person seeking indemni' (a) was substantially successful on the merits in defen( action or proceeding, and (b) fulfills the conditions set out in paragraphs (1)(a) and (b In our opinion, the wording of the above noted sections, particularly the red proceeding "to which he or she is made a party" implies that the section apf those parties who were brought into the proceedings rather than electing to in the action. For example, those parties named as defendants or third partie would qualify. In the present case, the only person who may qual imbursernent under the Act is Councillor Fergusson. Even then, this is because it is arguable he was not made a party because of his mem Council, but rather because of his personal comments, which are argua his Council functions. This is actually one of the issues in the defamation members of the Board are Plaintiffs and therefore were not "made parties" t, rather, they chose to be parties to an action. Further, if the party is substantially successful, he is entitled to be indemnifif of course, conditional upon his having been made a party due to being of Council, and his having acted honestly and in good faith with a view interests of the municipality. Similar provisions to those contained in the Municipalities Act are found is Act as well as corporate legislation, both federal and provincial. The C interpreted provisions such as the one at issue to mean that no one is indemnity until the matter is at an end and the result of the pro( apparent, as this is necessary to measure whether the party has had substant aI ry Spaidiiib What I do find more persuasive is the proposition that persons sumed to act in good faith unless proven otherwise: General ,41i Canada Ltd. v Brunet, [1977] 2 S.C.R. 5' )7, at p. 548. In this resp trary to the appellant's submissions before this Court, I believe that construction of the statute and law related to good faith issues rev Blair is not required to prove his good faith, although he may certa evidence in this regard to counter whatever evidence of bad faith adduced against him. To a large extent, it is the corporation th establish, to the satisfaction of the court; exactly what Blair was inimical to its best interests. [Emphasis added] Accordingly, in the present case, the City may eventually be under a duty tc Councillor Fergusson. If the City elects to contest his entitlement, the mai decided by way of an application pursuant to s. 85.1(4) of the Act: 85.1(4) A municipality or a person referred to in subsection (1) ply to The Court of Queen's Bench of New Brunswick for an order ing an indemnity under this section and the Court may so order ai any further order it thinks fit. A dispute in this regard, following resolution of the defamation law create a second lawsuit. INSURANCE ISSUES The Municipalities Act further provides that: 85.1(3) A municipality may purchase and maintain insuranc benefit of any person referred to in subsection (1) against any lial curred by that person (a) as a member of council, an officer or employee of the municip� member of a committee, board, commission or agency established 1 cil, except where the liability relates to the failure of that person to estly and in good faith with a view to the best interests of the muni and ; 2 arry Spardi,n Section 85.1(3) does little except to explicitly permit a municipality insurance for certain circumstances, a power which, arguably, is already bounds of the general powers of the City by virtue of S.4(2)(b) of the Act. A policy of insurance is a contract of indemnity and applies to specified Such a policy contains exclusions as well as separate and distinct duties to to indemnify. We have not examined your policies of liability insurance in this conti would go beyond the scope of the question as framed at this time. Suffi that in the present case, notice of any potential claims under the insur; of the City should be given in the normal fashion to its insurer, by the officer of the City of Saint John. Coverage will ultimately be det( accordance with the policy wording and the findings of fact made by tl the underlying lawsuit. 3. What is your advice on the appropriateness of the City Solicitor sit Pension Board. Our understanding is that City Solicitor Jolul Nugent sits on the Pension trustee appointed by and being a member of the non -union employees c pursuant to Section 2(2)0) of the City of Saint John Pension Act, S.N.B. l as amended. The Municipalities Act provides that: 90.3 A member or a senior appointed officer does not have a of interest and does not violate section 90.8 by reason only that family associate is, as the case may be, (g) a director or senior officer of a company incorporated for the of carrying on business for and on behalf of a municipality or loca 5 ?"'Bar .l; v Spalding Whether the Pension Board is categorized at law as a "board ", "local "commission ", as these terms are used in the Municipalities Act, the clef Section 90.3 is that senior appointed officers do not have a conflict of bodies closely related to the municipality by reason only of their bE officers of the municipality. In our opinion, a senior officer, such as the City Solicitor, will not be ii by virtue of the fact that he sits on the Pension Board. (It is worth not regard that Section 2(3) of the City of Saint John Pension Act actuall mandatory that trustees appointed by employee groups must be emplo City. Furthermore, the Mayor, the Commissioner of Finance, the Cbm and the City Manager are ex officio members of the Pension Board by S of the Act.) When the City Solicitor feels himself to be placed in a virtue of the possibility of diverging interests between the City of Saini the Pension Board, the City of Saint John may seek alternative or ou counsel, which is precisely what solicitor Nugent has brought about in t case. This is entirely appropriate, and it is the norm in situations of this 4. Should those members of Council and staff that serve on the Pen: as well as John Ferguson be participating in any discussions that a related to the legal action that the Board of Trustees of the Pensio taking against John Ferguson as an individual and not a Cou should those parties declare a conflict of interest consistent conditions of the Municipalities Act and remove themselves meetings of council where those matters are discussed? The provisions of the Municipalities Act dealing with conflicts of interest at conflicts involving pecuniary benefits. The types of situations that can gi conflict of interest are enumerated. We have reproduced the ones tha possible application. The following sections are relevant: Conflict Of Interest Barry Spalding (ii)has an interest in any other matter in which such council board is concerned that would be of financial benefit to him or ily associate; (d) he or a family associate would otherwise benefit financially sion of such council or local board in any contract proposed co: other matter in which the council or local board is concerned. 1981, c.52, s.12; 2003, c.27, s.37. 90.3 A member or a senior appointed officer does not have a of interest and does not violate section 90.8 by reason only that he c ily associate is, as the case may be, (g) a director or senior officer of a company incorporated for the of carrying on business for and on behalf of a municipality or local 1 being a member of a board, commission, or other body as an app( the council or local board of which he is a member; 90.91 The provisions of this Act with respect to conflicts of ir, municipal governments shall be deemed to supersede all other pr that may exist in any other Act, public or private, any regulation the any municipal by -law or any municipal charter with respect to such notwithstanding that no conflict may exist between the provision: Act and such other provisions. The Plaintiffs and Defendant as individuals all clearly have a financial the outcome of the lawsuit. The Plaintiffs seek to obtain money damage; costs. The Defendant faces the prospect of being ordered to pay mone, and costs. Because the lawsuit does not directly involve the City of Saint party, it is arguable whether or not the involvement of the individu: constitutes a potential financial benefit to the detriment of the ON of S arry Spalding In Old St. Bonifice Residents v. Winnipeg (Cite) (1990), 116 N.R. 46 ('L�_ Supreme Court of Canada addressed the meaning of a conflict of interest, law, at pp. 59 -60: "There is nothing inherent in the hybrid functions, political, legis_ otherwise, of municipal Councillors that would make it mand, desirable to excuse them from the requirement that they refra dealing with matters in respect of which they have a personal interest. It is not part of the job description that municipal Counc personally interested in matters that come before them beyond the that they have in common with the other citizens in the muni Where such an interest is found, both at common law and by st member of Council is disqualified if the interest is so relate( exercise of public duty that a reasonably well- informed persoi conclude that the interest might influence the exercise of th; This is commonly referred to as a conflict of interest." [Emphasis a( The present situation is unusual because although the City of Saint major contributor to the pension fund, the Pension Board is actually entity, established by Statute (see comments under question 6 below). I Saint John is not actually a party to the litigation, although its resi indirectly involved in it. Councillors who have a direct pecuniary irate outcome of the litigation as individual litigants in it can ill be s "objective" in discussing its ramifications for the City of Saint John a, of Common Council. Reasonably well- informed persons would, in our opinion, conclude that litigants could not distance themselves sufficiently from their owr interests to exercise their discretion as Councillors on behalf of the City. In our opinion, it would be both a conflict of interest and the appearanc conflict, at common law, for the named litigants to participate in an making process or vote on issues related to the lawsuit. This is not to say individuals cannot discuss matters generally relating to the administra pension plan and the City of Saint John. ar.r.,V, Spalding qualified privilege, qualified privilege only applies where there is no bad or deliberate falsehood on the part of the person making the statement privilege is a complete defence which has been recently expanded by t Court of Canada to facilitate the frank discussion of issues by municipal cc Canada, regardless the veracity of the impugned statement (See Prue Prud'hoinnie, [2002] 4 S.C.R. 663). It should be clarified that we are not s, opinion that there was bad faith, malice, or deliberate falsehood; rather, w that the Plaintiffs have alleged this, and the Court has not yet heard any, these points. On a motion for summary judgment, there is no evidence beR on such issues; nor is the court asked to decide issues of credibility. The caselaw provides that the Court should only order summary judgmer, of a party where there is no essential dispute as to the facts or the applb In the present case, there are serious issues of fact that have to be tried. Tl can only be effectively resolved following a trial and all pre -trial Accordingly, we believe that the New Brunswick Court of Appeal will overturn Justice McLellan's ruling and order that the litigation procee This in no way assures that the Plaintiffs will ultimately be Undoubtedly, the exchange of documents and discoveries will rev, evidence that may be crucial in the determination of this matter. proceedings which follow will then entail Examination for Discovery w involve all Plaintiffs and the Defendant being questioned under ( thereafter may or may not involve a jury and could be lengthy due to t allegations of defamation and the complicated evidence involved in the allegations. The unsuccessful party would also consider Appeal of the T to the New Brunswick Court of Appeal once again. The entire process v prove by its nature to be protracted and expensive. 6. As the Council is the Pension Plan sponsor, does it have the abilit end to the appeal filed by the Pension Board against Councillor Fe In our opinion, Council does not have the ability to dictate the course of While Council has a defined relationship with the Board via the City of Pension Act, S.N.B. 1994 ( a private act), the Board is a separate entity Council does not control the Board other than by determination of some of i1 Barry �► Spal��r�or require further review before any final opinion could be expressed. A p litigation could raise the argument that the Board is not a proper party to although that argument has not been advanced in the pleading thus far. It should also be noted that the Appeal is on behalf of the Plaintiffs to the ac include many individuals as well as the Board of Trustees of the Pei Council obviously can not force the various individual appellants to witl appeal. 7. Given the fact that an elected Councillor is responsible for repre,4 interests of taxpayers and that there were allegations of serious wl of the Board of Trustees of the City of Saint John Pension Plan, pi Council on July 17, 2006, and noted below: - "I raised this matter to a very senior person who sits on the Board." - "I have his name, rank and serial number, 55,900,000.00 /year - "There's the figure - that figure is shocking." - And I said, to - "isn't that illegal ". - "Yes, it is ", said that person, "but so is drinking and dt people do that every day." - Let us refresh our memory: the person on the Pension Boar is like drinking and driving and people do it every day ". And is laughing at Council and laughing at the Saint John taxpaye - Remember I heard this person and that person on the Pensio laughing at you. - "It is' like drinking and driving and people do it every day ". - Remember "it is like drinking and driving and people do it as a member of the Pension Board said to me." Would you please confirm that a Councillor who makes these owes a duty to those same taxpayers (including the Mayor Councillors), to name the "senior person" so Council can take the steps to remedy the situation and to prevent further wrong -do Board, if that is indeed what has taken place? <?"'Barry Spaldingr All municipal Councillors have obligations to the public by virtue of Municipalities Act: 36(2.1) A Councillor of a municipality shall (a) consider the welfare and interests of the entire municipals making decisions, (b) bring to the attention of council matters that may promote fare or interests of the municipality... [Emphasis added.] These duties are mandatory by the Statute. In the case of Prud'homme v. Prud'homme, [2002] S.C.J. No.86, the Suprei Canada discussed the law governing elected municipal officials in Queb L'Heureux -Dube and LeBel delivered a unanimous judgment on behalf membership of the Supreme Court of Canada. They stated at para. 16 of th as follows: "Elected municipal officials are the leading players in municipal racy. They are chosen by the residents to look after the communit, ests; they take on a variety of responsibilities, some of which are by law and others of which are inherent in the nature of their posit cause their office is an elected one, municipal officials are account marily to their constituents if they are unable to meet the demands position. However, like anyone else, elected municipal officials m mit wrongful acts that cause injury to individuals in the performani duties of their office. Because such a wrongful act cannot be ad remedied at the polls, an effective sanction for it can be applied on] courts. When this happens, because of the public nature of the duti office of elected municipal officials, the courts are faced with the of how to apply the ordinary rules of liability in the jus commur wrongful individual acts of those officials." The Supreme Court of Canada then goes on to discuss legal status and dutie municipal officials in the Province of Quebec. The Court actually found th ctntiic of alartarl rn171lirinn1 nffrialc in (ltiuAhar is cnnirs -,zTkat amhiminitic nc ; 2 Baer. lic order, not to promote their private interests at the expense of the pality's interests, to ensure that municipal archives and records ar vised and secure, to superintend and inforn-i themselves about m works, to inform themselves about the important details of munici errment, to select the City's employees judiciously and to ensure ti rity of its police service. More specifically, other judgments b knowledged the existence of a duty to disclose information the affect the proper administration of public affairs. From a sy standpoint, these inherent duties may all be regarded as particular tions of a general duty to protect the municipality's interests and th administration of its affairs. ... ." [Emphasis added.] The Supreme Court goes on to state that municipal councillors must both f subjective interests of their constituents and safeguard the objective inter municipality. The Court then states (para.23): "Their office requires that they justify those choices in relation tc which is decision - making in nature. For example, in the proceeding council or municipal bodies, they must explain and defend their They must also explain them, and justify them publicly to their cons or to some constituents. Their right, and even obligation, to speak i portant aspect of the perfonnance of the duties of their office as off the municipality." While the Supreme Court of Canada was discussing the particular circumsta civil liability system in the Province of Quebec, an analogy may be drawn comments to the duties of municipal Councillors elsewhere in Canada. The Supreme Court of Canada then, however, goes on to discuss the foregoi within the framework of the common law defence of qualified privilege as i a defamation case. The Court states at para.53 as follows: "As noted earlier, the duties of office of municipal councillors reg7 they take public positions and make efforts to explain and persuade spect to the numerous problems that arise in a municipality and in ning of it. The councillor's freedom of expression is a crucial instrui achieving effective participation in and transparent management of Barn. Sparding all instances of qualified privilege fall into the realm of public la ously, the qualified privilege that protects a municipal councillor a meetings is clearly part of it: the application of this particular fonn l=ied privilege is so intimately connected to the public nature of the office performed by a municipal councillor, and to the unique requ of that office, that it must be recognized as a principle of the pub anon law that is applicable in Quebec law." [Emphasis added.] The Supreme Court of Canada quotes at para.49, Lord Diplock in the 1975 the House of Lords in Horrocks v Lowe as follows: "My Lords, what is said by members of a local council at meeting council or of any of its committees is spoken on a privileged occas reason for the privilege is that those who represent the local goN electors should be able to speak freely and frankly, boldly and bll any matter which they believe affects the interests or welfare of thf tants. They may be swayed by strong political prejudice, they may 1 nate and pig - headed, stupid and obtuse; but they were chosen by i tors to speak their minds on matters of local concern and so long as so honestly they run no risk of liability for defamation of those who subjects of their criticism." While the Prud'homme case is a defamation case, the Court does recol decision both the freedoms which must be accorded to the statements of councillors, and also the duties of councillors as serving their municipa freedom of speech is important, it is to be exercised "in a manner th, other persons ". It must also be balanced against the "duty to disclose it that could affect the proper administration of public affairs ". The statements which are quoted to us in seeking our opinion are so vagt unclear what precisely the speaker was trying to allege, apart from the fac may have been some sort of illegal conduct of some sort in relation to t Board. These comments refer to conduct which is not actually specified. know what that conduct may be. In our opinion a Councillor who is aw refuses to disclose relevant information to prevent financial harm to tl pality is in breach of the duties set out in the Act. There is no conflict qualified privilege. Indeed, one of the reasons that qualified privilege ar �, Spa�dzl�b [22] A municipal corporation is a creature of the MGA, and erned by its council. As Don J. Manderscheid wrote in "Pecuniary and Municipal Govenunent in Alberta: A Matter of Trust" (20 M.P.L.R.(3d) 242: In recognition of the power and trust accorded municipal C lors by their office, the judiciary has for many years r( such a position as involving a fiduciary relationship with 1 tuis que trust being the inhabitants of the municipality. A as 1854, in the seminal decision of Toronto (City of) v. the judiciary acknowledged a fiduciary relationship betw municipal council and the citizens of the municipality. A contravention of the Act may be addressed by way of an application to th Queen's Bench pursuant to s. 106.1(1) of the Act. However, very clear evide be necessary to consider this as an option. To summarize, we feel that where a councillor is aware of and refuses t relevant information, where such disclosure would prevent financial ha municipality, such councillor is in breach of his or her fiduciary duties under CONCLUSION We would be glad to meet with Council in legal session to respond to an) pertaining to the foregoing. Respectfully submitted, BARRY SPALDING David G. O'Brien April 10, 2012 Your Worship, Deputy Mayor and Councillors: Subject: Committee of the Whole — Saint John Development Corporation The Committee of the Whole, having met on April 10th, 2012 adopted the following re: "RESOLVED that the Committee of the Whole recommends that the Saint John Devel Corporation be hereby authorized to continue lease -back negotiations with DFO & P11\ (buildings /registry) & to make a recommendation in that regard to the City; and further The Saint John Development Corporation be directed to pursue the objectives of the r phases as follows: To develop and recommend to the City a mutually beneficial busin( financial solution acceptable to all parties sufficient to advance the project(s) to the "Construction Ready" state and /or maximizing leasing opportunities as maters arise. - recommendation will include a resolution of existing site conditions and parcel allocatic reflect a close financial analysis and assessment of capabilities, in addition to address approvals and the terms of any proposed purchase /lease agreement(s)." Respectfully Submitted, Jonathan Taylor Assistant Common Clerk