Pembroke mayor's unilateral act to axe committees appears to be illegal: experts
But Ron Gervais 'self-corrected' with council's vote to back him up last week, says lawyer
Lawyers who practise municipal law say the mayor of Pembroke, Ont., acted outside his authority when he unilaterally decided the fate of several city committees, including scrapping one that tackled racism and inclusion.
Pembroke Mayor Ron Gervais disbanded several committees upon his inauguration in late November. He axed the diversity, parks and recreation, and seniors advisory committees, and said he "reworked" the climate action advisory committee into the existing Keeping Pembroke Beautiful committee.
The moves have drawn ire from several residents, groups, and even councillors in the community in recent months.
Lawyer Douglas Judson says rules in Ontario generally don't give mayors power to make decisions on behalf of their municipalities — unless you're the mayors of Toronto or Ottawa, recently given strong mayor powers by Premier Doug Ford's government.
"I would say that making a unilateral order or decision on behalf of the municipality — that a certain committee that used to exist no longer exists — is illegal," said Judson, who practises municipal law and was a city councillor in Fort Frances, Ont., last term.
I, as the Mayor of the City of Pembroke exercised my prerogative.- Mayor Ron Gervais in December statement
Residents said they only found out about the committee decisions when the city posted a call for applications for its active committees this term.
"I, as the Mayor of the City of Pembroke exercised my prerogative to implement the slate of committees," wrote Gervais at the time, when questioned by concerned residents and the media. He later said budget considerations were his main motivation.
That "prerogative" doesn't exist in the Ontario Municipal Act, said Judson.
The act, which governs how municipalities work in Ontario, uses a "weak mayor" system where most decision-making power lies with council's majority vote. The head of council has little executive authority — unless specified by a local bylaw.
"The mayor doesn't come with any real power," Judson said.
WATCH | Municipal law expert on how Gervais may have acted illegally:
For example, he pointed to a 2020 judicial inquiry for the Town of Collingwood, a small harbour town north of Toronto, when a judge clarified the role of the head of council in the Municipal Act.
"The head of council does not have the power to commit the municipality to anything unilaterally," wrote Associate Chief Justice Frank Marrocco.
Marrocco goes on to say "the erroneous belief that the mayor" had the power to act alone "without council's agreement or approval" was the wrong interpretation of the act, which describes the mayor as a CEO of the municipality.
WATCH | Councillor slams Gervais for breaking rule:
Coun. Ian Kuehl criticized the Pembroke mayor during a heated council meeting on Jan. 3, for just that.
Kuehl, a lawyer with experience in municipal law, declined an interview and referred CBC to his comments from that meeting and his December news release.
"In my opinion, [Gervais's] statement is legally inaccurate," Kuehl wrote, regarding the "prerogative" comment.
We put the cart before the horse.- Coun. Ian Kuehl
"The mayor didn't follow the rule. We didn't follow the rule," said Kuehl at council, explaining that Pembroke's bylaw "does not give the mayor a royal prerogative" to create committees.
"We [as a city council] still haven't actually voted on creating committees. We put the cart before the horse," said Kuehl.
What does the bylaw say?
Mayors may be given some power if specified by their own bylaws.
According to Pembroke's procedural bylaw under Section 3 "Establishment/Appointment to Committees," the mayor should "recommend" appointing members to committees, and uses terms like "in consultation with council" to describe their role. The section repeatedly states council makes decisions, like approving the formation of an advisory committee.
The bylaw also states committees will be dissolved after they complete their mandates under their unique terms of references, "or by a resolution of council."
The diversity advisory committee's terms of reference states reviews should happen "with every new council to determine the membership and if the committee should remain in place."
The procedural bylaw does not state the mayor has the power to create, merge, or disband committees on their own.
Mayor 'self-corrected' by vote
Gervais sought council's approval to affirm his decision on Jan. 3, and councillors voted 4-2 in favour of not reinstating the diversity committee.
Judson said the mayor "self-corrected" his actions by seeking support retroactively.
The issue has now "morphed [from] a jurisdictional or legal problem into a political one," he said.
Erin Tolley, an associate professor of political science at Carleton University, says politics is about perception, and concerned residents can put pressure on elected officials.
"When elected officials take decisions and then discover they're perhaps unpopular ... they often act on that pushback," said Tolley, the Canada research chair in gender, race and inclusive politics.
"Public pressure can be a really effective tool and politicians frequently change course."
A court challenge is likely ineffective because of the council support, Judson added, but concerned residents are able to use the city's complaints process or make deputations to council.
Gervais disagrees
CBC asked Gervais to respond to critics questioning the legality of his initial action.
"I don't take that view that I was acting inappropriately," he said, stressing the council support.
He said legal considerations did not influence his decision to seek council's backing.
"The purpose of the motion was to allow council to move forward," he said. "And that's what we're going to be doing at this point."
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