General News · 4th August 2021
I took the Strathcona Regional District (SRD) to court. Last month, I lost. But who won? I submit nobody. This is why I have appealed the Court’s decision.
Background to the Court Action
I am a young, progressive, outspoken, female, politician. Three months after being re-elected in 2018 to represent Cortes Island for a fourth term, a handful of Cortes Islanders petitioned to the Court to have me removed from office. The Court petition alleged that I had voted at the SRD Board table while in a conflict-of-interest position. Although baseless, these allegations appeared to land in fertile ground at the SRD. Despite the clear absence of any truth to these allegations, the SRD hired an investigator who began to interview Cortes Islanders. Ultimately, the investigative report exonerated me, yet the Board chose not to release it in full.
In June 2019, the BC Supreme Court ruled in my favour against the Cortes petitioners and dismissed the Court petition in its entirety. Specifically, the Court found that I did not have a conflict of interest. The Court also ordered that the petitioners pay part of my legal costs to defend the petition. Notably, in his submissions to the Court, the petitioners’ lawyer said that his clients had “been put up” to filing the petition.
The SRD has a bylaw designed to pay Directors legal expenses as they pertain to their elected offices. In 2019, I asked the Board to cover the remainder of my legal costs, as the votes at issue were performed in the course of my duties as a Board Director. However, the Board determined, for reasons not explained, that I was not entitled to reimbursement (called “indemnification”).
I was told by the then Board Chair that the SRD’s lawyers had advised them that I had settled with the petitioners out of court and bought their capitulation (which again, has no basis in reality) even though a judge ruled on the matter in my favour in Court.
In October 2019, the Board then censured me (an attempt at public shaming) for giving information about myself to my lawyer for the purpose of seeking independent legal advice. The SRD also began to refuse to provide documents and information to me on matters where they thought I might have a conflict, despite the fact that it is my obligation, as a Director, to determine if and when I have a conflict.
There is so much more, but that is the bare bones. So, I asked the Supreme Court to overturn three SRD decisions: 1. their decision to censure me for getting informed legal advice, 2. their decision not to reimburse me for my legal bills relating to my defence of the Court petition, and 3. their practice of withholding information and documents from me which I need in order to do my job as a Director.
Despite what we thought were fairly obvious errors by the SRD, the judge decided that he could not find that these SRD actions were unreasonable. So, we are off to the Court of Appeal.
Reasons for Appealing:
I believe this Court decision creates an untenable precedent which weakens freedom of speech and democratic processes for my fellow elected officials, both present and future. There are two key problems that arise from this decision.
First, the decision means that elected officials cannot rely on the understood financial backing of their local government when defending themselves against court actions arising from their role as an elected official. This means that any handful of constituents could initiate a court action against a Director every week because the sky is too blue – literally. There need not be any basis in fact. And yet, the Director would need to spend tens of thousands of dollars in their defence or resign. This is not how democracy is supposed to work. This court decision emboldens a Board to decide, on a case-by-case basis, based on who knows what, which of its members they want to financially support when actions are brought against them for doing their job, and which members they want to want to leave hanging. This takes politics too far. Many elected officials would be unable to defend themselves, face significant financial hardship, and may even be forced to resign due to their inability to defend the court action.
Second, the decision means that Regional District directors are not entitled to obtain informed and timely legal advice about matters before the Board. Sharing information in confidence with one’s lawyer is a totally common practice in the local government legal world. I am being told that, before giving confidential information to ones lawyer, a Director should receive permission from the Board. If that permission is denied, then it is argued that a Director should start a court action, alone, without legal representation, (for in doing so one would be giving their lawyer sealed information) and seek the court’s permission to give said information to ones own lawyer. This would take months. Surely it was not the intent of the Provincial Legislature when writing the laws that govern Regional District’s conduct to deny elected officials informed and timely legal representation; a quasi-constitutional right afforded to all Canadians.
This opens a much larger set of questions. If a Director does not have permission to share confidential information with ones lawyer, then they would arguably not have permission to tell the police either… for any reason… even in the event of threats made during a closed meeting - even if a Director thought that an individual or the public at large was in danger. This is a horrible precedent that puts local government officials in an untenably gagged position. This is not the intention of closed session meetings, to hold all verbal and written information under total seal.
I well understand that the regional district system often does not serve rural communities well, that it is neither innovative nor nimble, and that it very much needs reform. I am concerned that the judgement of this court will lead to a further deficit of good governance and will make it even more difficult for rural communities to be represented. This is another reason for my appeal. While I am in this system, I cannot stand and let the treatment that I have received be the accepted practice, without at least bringing it to light.
If this court decision stands, I question why anyone would run for elected office. It is because of these consequences that I have decided to take the case to the Court of Appeal. The BC Court of Appeal will appoint three judges to hear this case. I hope that they will put their legal minds more fulsomely to the far-reaching implications of this case for all local government officials, present and future.
Win or lose, clearly, we need a better system… a system that knows the people it represents, a system that is more filled with heart, transparency and democracy, a system that has the nimble innovation to respond to the remarkable times in which we find ourselves.
Thank-you for all your love and support.
It remains, throughout these strange trials, an honor to serve this community.
Warmly, Noba Anderson
Regional Director, Cortes Island