Pembroke resident cites email as evidence mayor is 'double dipping'
Lawyer says perceived conflict of interest might not be illegal
Following a court battle with the City of Pembroke, one resident is joining others with "serious" concerns about Mayor Ron Gervais, suggesting the mayor worked as a lawyer on the taxpayers' dime while serving as an elected official last year.
Some residents recently told CBC News they had concerns about perceived and possible financial conflicts of interest involving Gervais's ties to his place of employment, Sheppard & Gervais — the firm hired by the city to carry out the city solicitor job, headed by Robert Sheppard.
The solicitor contract began in 2002 and councillors are now looking at reconsidering that decades-long relationship, and possibly changing the city's procurement bylaws that exempt legal services from a tender process.
Gervais has been an elected official on council for more than a decade, and served as deputy mayor before he was elected mayor last November.
That's what you call double dipping.- Grant Tysick, Pembroke resident
In that time, Pembroke resident Grant Tysick became suspicious of what he says is a conflict of interest.
"Mr. Gervais actually plays both sides of the fence," said Tysick.
Tysick said he learned about the dual roles Gervais holds when he submitted an application against the City of Pembroke in Ontario Superior Court last spring seeking an injunction on a city subdivision development.
The response came from Sheppard & Gervais, representing the city as its legal counsel, and Tysick recognized it as the place of employment for the deputy mayor and councillor at the time.
"That was puzzling," said Tysick.
In the months that followed, Tysick said he received emails with Gervais copied, or sometimes directly from Gervais.
"That's what you call double dipping," Tysick continued, calling the situation a "serious conflict of interest."
"Being paid to be the [deputy] mayor and also to act as legal counsel [for the city] at the same time."
Tysick, who is the chief of Kinounchepirini Algonquin First Nation, has been fighting for recognition of his non-status band members — spread out throughout eastern Ontario — for more than a decade.
That fight inspired his court application last May, where Tysick states the city failed to consult and accommodate the First Nation and non-status Algonquins over that development. He later expanded that application to include the developer, James W. Lapointe Motor Holdings Inc.
One of the city lawyer's affidavits states questions were raised about the group's status and rights in relation to the land being developed, and "Tysick repeatedly conflates his own personal ancestry and genealogy with the validity" of the First Nation's "claim to Aboriginal rights."
"We've been denied, in light of the Supreme Court of Canada decision, who we are," said Tysick, referring to the decision where the highest court concluded the term "Indian" includes Métis and non-status Indians, for the purposes of Canada's law-making powers.
"After years of being ignored ... we decided, instead of being the defendant for a change, we'd bring an application forward."
Emails show Gervais's involvement
Provincial court documents show multiple lawyers and a legal assistant at Sheppard & Gervais were involved in representing the City of Pembroke in the case against Tysick.
In an email dated June 23, 2022, a superior court trial co-ordinator sent a Zoom link to Gervais and Tysick and asked both parties to file confirmation of attendance at least five days before their July hearing.
It looks like it stinks.- Douglas Judson, lawyer
CBC also viewed the original email Gervais had sent to Tysick dated Nov. 18, 2022 — almost a month after Gervais was acclaimed as mayor in the election, and days before he was inaugurated.
That email, sent from Gervais's Sheppard & Gervais law firm email address, is titled "confirmation" and reads "please find attached a confirmation of Application form." Attached was a court document confirming the hearing date and Sheppard as the lawyer for the city.
According to court documents, Gervais did not sign any affidavits of service — a sworn statement describing how documents were served to the other party — between May 2022 and March 2023, when the case was ultimately dismissed.
Justice Adriana Doyle awarded $22,800 in costs to the city and $1,000 to the developer, according to court documents. At the end of March, Sheppard & Gervais submitted a motion on behalf of the City of Pembroke that asked the court to hold Tysick personally responsible to pay all costs.
That process continues to make its way through the court.
Situation 'stinks' but law may not address it: lawyer
Douglas Judson, a lawyer with Judson Howie LLP who practises municipal law, says "at first blush" the mayor's ties to the city's legal counsel "looks like it's a messy relationship."
"Looking at the facts, obviously, it looks like it stinks — we have a member of council … a lawyer whose name is on the firm [that] is performing services for the municipality," said Judson.
Still, the perceived conflict of interest might not be illegal, he said.
The Municipal Conflict of Interest Act aims to hold elected officials to a standard of good conduct and integrity, but Judson said it's "imperfect" and doesn't address all scenarios that may involve conflicts of interest.
The act primarily addresses financial conflicts of interest for elected officials when matters are under consideration before council, or in cases where the member exerts influence over a matter being considered by the municipal officials, he said.
Outside of those scenarios, it can be difficult to determine whether an elected official breached the act.
That's when a municipality's code of conduct may be useful, as council can impose a broader set of obligations not necessarily available under the act, said Judson.
WATCH | Where it gets 'messy' and what concerned residents can do, according to lawyer:
According to Pembroke's code of conduct, council members must "always place the interests of the taxpayers and the Municipality first" over their own or those of their family, friends, staff or business colleagues.
"A lot of this comes down to what is the political gut feeling you have when you see a business that is associated with a member of council making money from the municipality," he said.
That's why Judson says it's important for municipalities to have good policies — such as a procurement policy that requires regular review intervals.
Mayor remains silent, CAO didn't know of involvement
Since April 20, CBC has reached out to Gervais several times over the phone and by email, as well as visited the mayor's office and Sheppard & Gervais, but was told Gervais was busy and unavailable. Mayor Gervais did not return any of CBC's requests.
CBC has contacted Sheppard and Ryan Paulsen, the other two lawyers at Sheppard & Gervais who worked on the civil case for comment. They, too, did not return CBC's multiple calls or emails.
Pembroke's chief administrative officer David Unrau declined an interview.
In an emailed statement, Unrau said he's served in his current role for only a few months and has "no knowledge of Mr. Gervais involvement in City legal matters." He said invoices for 2023's first quarter don't indicate Gervais working on city legal files.
He also said anyone who believes an elected official violated the city's code of conduct could use the complaints process through the city's integrity commissioner Tony Fleming.
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