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C.C.S.M. c. M255

The Municipal Council Conflict of Interest Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1(1)        In this Act,

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

"council" means

(a) a municipal council, or

(b) an elected council under The Local Government Districts Act; (« conseil »)

"councillor" means a member of a council, and includes a mayor or reeve; (« conseiller »)

"Crown agency" means Crown agency as defined in The Legislative Assembly Act; (« organisme de la Couronne »)

"dependant" means

(a) the spouse of a councillor,

(a.1) the common-law partner of a councillor, and

(b) any child, natural or adopted, of the councillor,

who resides with the councillor; (« personne à charge »)

"direct pecuniary interest" includes a fee, commission or other compensation paid or payable to any person for representing the interests of another person or a corporation, partnership, or organization in a matter; (« intérêt financier direct »)

"elector" means a person entitled to vote at an election of members to a council; (« électeur »)

"family" includes a common-law partner; (« famille »)

"municipality" includes a local government district; (« municipalité »)

"ordinary resident" means

(a) in the case of a matter which relates to an entire municipality, an ordinary resident of the municipality, and

(b) in the case of a matter which relates to a part of a municipality, an ordinary resident of that part of the municipality; (« simple résident »)

"subsidiary" means a corporation that is a subsidiary as described in section 2. (« filiale »)

Registered common-law relationship

1(2)        For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

S.M. 2002, c. 24, s. 44; S.M. 2002, c. 48, s. 28.

Subsidiary corporation

2(1)        A corporation is a subsidiary of another corporation where it is controlled by that other corporation.

Control

2(2)        A corporation is controlled by another corporation where

(a) securities of the controlled corporation to which are attached more than 50% of the votes that may be cast to elect directors of the controlled corporation are held, other than by way of security only, by or for the benefit of the controlling corporation; and

(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the controlled corporation.

Subsidiary includes subsidiaries

2(3)        "Subsidiary" includes all subsidiaries of a subsidiary.

City of Winnipeg

3(1)        This Act applies to The City of Winnipeg.

3(2)        [Repealed] S.M. 2012, c. 25, s. 13.

S.M. 2012, c. 25, s. 13.

Indirect pecuniary interest

4(1)        For purposes of this Act, but subject to this section, a person shall be presumed to have an indirect pecuniary interest in a matter where

(a) the person, or a nominee of the person,

(i) holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock, or

(ii) is a director or officer, of a corporation which, or a subsidiary of which, has a direct pecuniary interest in the matter; or

(b) the person is

(i) a partner of or employed by, or

(ii) a guarantor or surety for, or

(iii) a creditor of,

a person, corporation, partnership, or organization who or which, or (in the case of a corporation) a subsidiary of which, has a direct pecuniary interest in the matter.

Exception for indemnity or expenses

4(2)        For purposes of this Act, councillors shall be presumed not to have a direct or indirect pecuniary interest in any matter involving the indemnity, expenses or remuneration payable to councillors.

No pecuniary interest in certain transactions

4(3)        For purposes of this Act, a person, corporation, partnership, or organization shall be presumed not to have a direct or indirect pecuniary interest in respect of

(a) any contract into which the person, corporation, partnership or organization enters with a municipality on terms common to contracts between other persons, corporations, partnerships, or organizations and the municipality

(i) for the supply, provision, or sale to the person, corporation, partnership, or organization of a utility, service, or article of merchandise administered, provided, or sold by the municipality,

(ii) for payment of sewer or water rates or rents, or the installation by the municipality of sewer or water connections or appliances, or

(iii) for the construction for the person, corporation, partnership, or organization and other persons, corporations, partnerships, or organizations of any local improvement by the municipality;

(b) official notices or advertisements inserted by a municipality, or subscriptions held by a municipality, at normal commercial rates in or to a newspaper or other periodical publication of which the person, corporation, partnership or organization is the proprietor or in which he or it is otherwise interested;

(c) holding bonds or debentures of the municipality;

(d) reasonable compensation or expense money received for services as a volunteer firefighter or a driver or attendant of an emergency vehicle; or

(e) reasonable compensation received for providing work, goods or services to the municipality in an emergency.

Presumption of indirect pecuniary liability

4(4)        For purposes of this Act, but subject to this section, a person shall be presumed to have an indirect pecuniary liability to another person or to a corporation, partnership, or organization where

(a) the person, or a nominee of the person,

(i) holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock, or

(ii) is a director or officer,

of a corporation which, or a subsidiary of which, has a direct pecuniary liability to the other person or to the corporation, partnership, or organization; or

(b) the person is

(i) a partner of or employed by, or

(ii) a guarantor or surety for, or

(iii) a creditor of,

a person, corporation, partnership, or organization who or which, or (in the case of a corporation) a subsidiary of which, has a direct pecuniary liability to the other person or to the corporation, partnership, or organization.

Interest or liability must be significant

4(5)        For purposes of this Act, and notwithstanding any other provision of this Act,

(a) where the direct or indirect pecuniary interest of any person, corporation, partnership, or organization in a matter does not exceed the pecuniary interest of an ordinary resident in the matter, the person, corporation, partnership, or organization shall be presumed not to have a direct or indirect pecuniary interest in the matter;

(b) where the direct or indirect pecuniary liability of any person to another person or to a corporation, partnership, or organization does not exceed the pecuniary liability of an ordinary resident to the same person or to the same corporation, partnership, or organization, the person shall be presumed not to have a direct or indirect pecuniary liability to the other person or to the corporation, partnership, or organization; and

(c) no person shall be presumed to have a direct or indirect pecuniary interest in any matter, or a direct or indirect pecuniary liability to another person or to a corporation, partnership, or organization, unless the value of the pecuniary interest or liability is $500. or more.

Appointments

4(6)        For purposes of this Act, where a councillor is appointed to serve in his official capacity as a councillor on any commission, board or agency, the councillor shall be presumed not to have a direct pecuniary interest in the appointment and the councillor shall not be presumed, solely by virtue of that appointment, to have

(a) an indirect pecuniary interest in a matter in which the commission, board or agency has a direct pecuniary interest; or

(b) an indirect pecuniary liability to another person or to a corporation, partnership, or organization to whom or which the commission, board or agency has a direct pecuniary liability.

Employees of public bodies

4(7)        For purposes of this Act, where a person is employed by

(a) the Government of Canada or a federal Crown agency;

(b) the Government of Manitoba or a Crown agency; or

(c) a school board;

the person shall not be presumed to have

(d) an indirect pecuniary interest in a matter in which his employer has a direct pecuniary interest; or

(e) an indirect pecuniary liability to another person or to a corporation, partnership, or organization to whom or which his employer has a direct pecuniary liability.

Contribution to municipal budget

4(8)        For purposes of this Act, a corporation or organization shall not be presumed to have a direct pecuniary interest in a matter solely by virtue of the fact that the corporation or organization is liable to pay a portion of a municipal budget under an agreement entered into with the municipality.

Disclosure during meetings

5(1)        Where during any meeting there arises

(a) a matter in which a councillor or any of his dependants has a direct or indirect pecuniary interest; or

(b) a matter involving the direct or indirect pecuniary interest of any person, corporation, subsidiary of a corporation, partnership, or organization to whom or which a councillor or any of his dependants has a direct or indirect pecuniary liability;

the councillor shall

(c) disclose the general nature of the direct or indirect pecuniary interest or liability;

(d) withdraw from the meeting without voting or participating in the discussion; and

(e) refrain at all times from attempting to influence the matter.

All official meetings included

5(2)        For purposes of subsection (1), "meeting" includes

(a) a council meeting;

(b) a meeting of any committee or subcommittee of a council, or any subcommittee of a committee, on which the councillor sits;

(c) [repealed] S.M. 2002, c. 39, s. 528;

(d) a meeting of any commission, board or agency on which the councillor serves in his official capacity as a councillor; and

(e) a meeting of any Court of Revision or Board of Revision on which the councillor sits.

Absence from meeting

5(3)        Where a councillor fails to comply with subsection (1) by reason of the absence of the councillor from a meeting referred to therein, the councillor shall

(a) disclose the general nature of his direct or indirect pecuniary interest or liability at the next meeting of the same body before which the matter arose; and

(b) refrain at all times from attempting to influence the matter.

S.M. 2002, c. 39, s. 528.

Record of compliance

6(1)        Where a councillor has complied with subsection 5(1), the clerk of the meeting shall record

(a) the disclosure;

(b) the general nature of the direct or indirect pecuniary interest or liability disclosed; and

(c) the withdrawal of the councillor from the meeting;

and the clerk of the meeting shall subsequently file with the clerk of the municipality

(d) the information recorded under clauses (a), (b) and (c); and

(e) a notation indicating whether the meeting in question was open to the public, or was a closed meeting or a meeting the minutes of which are not open to the public.

Central record of disclosures

6(2)        The clerk of every municipality shall keep a central record for purposes of recording information in accordance with subsections (3) and (4).

Information disclosed at open meeting

6(3)        Where the meeting referred to in subsection 5(1) was open to the public, the clerk of the municipality shall record

(a) the disclosure;

(b) the general nature of the direct or indirect pecuniary interest or liability disclosed; and

(c) the withdrawal of the councillor from the meeting;

in the central record.

Information disclosed at closed meeting

6(4)        Where the meeting referred to in subsection 5(1) was a closed meeting, or a meeting the minutes of which are not open to the public, the clerk of the municipality shall record

(a) the disclosure; and

(b) the withdrawal of the councillor from the meeting;

in the central record.

Central record open to public

6(5)        The clerk of every municipality shall make the central record referred to in this section available for inspection by any person without charge during normal business hours.

Reduced quorum

7(1)        Where by reason of withdrawals from a meeting under subsection 5(1) the number of councillors remaining at the meeting is not sufficient to constitute a quorum, then, notwithstanding the provisions of any Act of the Legislature or any procedure or by-law of the council, the number of councillors remaining, if not fewer than two, shall be deemed to constitute a quorum for purposes of discussing and voting on any matter referred to in subsection 5(1).

Application to Municipal Board

7(2)        Where in the circumstances referred to in subsection (1) there would be fewer than two councillors remaining at a meeting, the council shall apply to The Municipal Board for an order authorizing the council to discuss and vote on any matter referred to in subsection 5(1).

Order of Municipal Board

7(3)        Upon hearing an application brought under subsection (2), The Municipal Board may order that

(a) subsection 5(1) does not apply to the council in respect of the matter; and

(b) the council may discuss and vote on the matter in the same manner as though none of the councillors or their dependants had any direct or indirect pecuniary interest or liability in or in relation to the matter;

subject only to such conditions and directions as The Municipal Board may prescribe.

Referral to city council

7(4)        Notwithstanding subsections (2) and (3), where in the circumstances referred to in subsection (1) there would be fewer than two councillors remaining at a meeting of a committee or subcommittee of The City of Winnipeg, the committee or subcommittee shall refer the matter to the council of the city, and council shall discuss and vote on the matter in place of the committee or subcommittee.

S.M. 2002, c. 39, s. 528.

Voidability of transaction or procedure

8           The failure of any councillor to comply with subsection 5(1) does not of itself invalidate

(a) any contract or other pecuniary transaction; or

(b) any procedure undertaken by the municipality with respect to a contract or other pecuniary transaction;

to which the failure to comply with subsection 5(1) relates, but the transaction or procedure is voidable at the instance of the municipality before the expiration of two years from the date of the decision authorizing the transaction, except as against any person, corporation, partnership, or organization who or which acted in good faith and without actual notice of the failure to comply with subsection 5(1).

Annual statement of assets and interests

9(1)        Not later than the last day in November of each year, and in the case of The City of Winnipeg, not later than the fourth Wednesday in November of each year, every councillor shall file with the clerk of the municipality a statement disclosing assets and interests in accordance with section 10.

Notification of failure to comply

9(2)        Where a councillor fails to comply forthwith with subsection (1), the clerk of the municipality shall forthwith notify the councillor in writing of the failure to comply, and the councillor shall, within 30 days of receiving the notification, file the statement referred to in subsection (1).

Further statement after acquisition or disposal

9(3)        Where after the filing of a statement under subsection (1) or (2) a councillor or any dependant of a councillor acquires or disposes of any asset or interest of the kind mentioned in section 10, the councillor shall within 30 days of the acquisition or disposal file with the clerk of the municipality a further statement disclosing the acquisition or disposal.

S.M. 1996, c. 58, s. 462.

Assets and interests which must be disclosed

10          Subject to section 11, the councillor shall disclose in the statement filed under subsection 9(1)

(a) all land in Manitoba in or in respect of which the councillor or any of his dependants has any estate or interest, including any leasehold estate and any mortgage, licence, or interest under a sale or option agreement, but excluding principal residence property;

(b) where the councillor or any of his dependants holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock of a corporation, all estates and interests in or in respect of land in Manitoba held by that corporation or by a subsidiary of that corporation;

(c) the name of every corporation, and every subsidiary of every corporation, in which the councillor or any of his dependants holds a beneficial interest in 5% or more of the value of the issued capital stock, or holds a share warrant or purchase option in respect of 5% or more of the value of the issued capital stock;

(d) the name of every person, corporation, subsidiary of a corporation, partnership, or organization which remunerates the councillor or any of his dependants for services performed as an officer, director, manager, proprietor, partner or employee;

(e) bonds and debentures held by the councillor or any of his dependants, excluding bonds issued by the Government of Canada, by the government of any province of Canada, or by any municipality in Canada, and also excluding Treasury Bills;

(f) holdings of the councillor or any of his dependants in investment funds, mutual funds, investment trusts, or similar securities, excluding Retirement Savings Plans, Home Ownership Savings Plans, accounts and term deposits held in banks, credit unions, or other financial institutions, pension plans, and insurance policies;

(g) any interest in property in Manitoba to which the councillor or any of his dependants is entitled in expectancy under any trust, and any interest in property in Manitoba over which the councillor or any of his dependants has a general power of appointment as executor of a will, administrator of an estate, or trustee under a deed of trust;

(h) the nature, and the identity of the donor, of every gift given to the councillor or any of his dependants at any time after the coming into force of this Act, excluding

(i) gifts from a family member,

(ii) gifts disclosed in any previous statement filed under section 9, and

(iii) gifts received before the councillor was first elected to the council; and

(i) the general nature of any contract or other pecuniary transaction entered into at any time after the coming into force of this Act between the municipality and

(i) the councillor or any of his dependants, or

(ii) any corporation referred to in clause (c), or

(iii) any partnership in which the councillor or any of his dependants is a partner,

but excluding

(iv) any such contract or other pecuniary transaction entered into before the councillor was first elected to the council, and

(v) any such contract or other pecuniary transaction disclosed in any previous statement filed under section 9, and

(vi) any transaction in which the councillor or any of his dependants is presumed under section 4 not to have a direct or indirect pecuniary interest.

S.M. 2012, c. 25, s. 13.

General exemptions

11          For purposes of sections 9 and 10, no councillor is required

(a) to disclose any gift worth less than $250., unless the total value of all the gifts from the donor to the councillor and his dependants during the past year exceeded $250.; or

(b) to disclose any other asset or interest worth less than $500.; or

(c) to estimate the value of any asset or interest disclosed; or

(d) to disclose any asset or interest acquired by a dependant of the councillor elected to the council more than two years before the person was elected to the council for the first time.

Continuing disclosure

12          Where a councillor or any of his dependants receives as a gift any of the assets or interests referred to in clauses 10(a) to (g), the councillor shall, notwithstanding that the gift has already been disclosed in a statement filed under section 9, continue to disclose the asset or interest in every statement filed under subsection 9(1) until the councillor or his dependant disposes of the asset or interest.

Statements available to public

13(1)       The clerk of the municipality shall make every statement filed under section 9 available for inspection by any person without charge during normal business hours.

November 2009 statements and beyond

13(2)       Subsection (1) applies in respect of any statement required to be filed by a date in November 2009 and thereafter.

S.M. 2009, c. 35, s. 1.

Insider information

14          No councillor shall use, for personal gain or the gain of any other person, information which is not available to the public and which the councillor acquires in the performance of his official powers, duties and functions.

Compensation for services

15          No councillor shall receive or agree to receive any compensation, directly or indirectly, for services rendered or to be rendered by the councillor

(a) to any person, corporation, partnership or organization in relation to any by-law, resolution, contract, proceeding, or other matter before the council or any committee, subcommittee or community committee thereof, before any subcommittee of a committee, or before any commission, board or agency on which a councillor serves in his official capacity as a councillor; or

(b) in order to influence or attempt to influence any other councillor.

Use of influence

16          No councillor shall, himself or through any other person, communicate with another councillor or with an officer or employee of the municipality for the purpose of influencing the municipality to enter into any contract or other transaction, or to confer any benefit, in which the councillor or any of his dependants has a direct or indirect pecuniary interest.

Right to appear

17(1)       Notwithstanding anything in this Act, but subject to subsection (3), a councillor has the same right as any other resident of the municipality to appear before a meeting for the purpose of representing his personal interests in

(a) an application for a variance in a zoning by-law; or

(b) an application for a conditional use under a zoning by-law; or

(c) a complaint in respect of a business, realty or local improvement assessment.

"Meeting" defined

17(2)       For purposes of subsection (1), "meeting" includes

(a) a council meeting;

(b) a meeting of any committee or subcommittee of a council, or any subcommittee of a committee;

(c) [repealed] S.M. 2002, c. 39, s. 528;

(d) a meeting of any commission, board or agency which has jurisdiction in the matter; and

(e) a meeting of any Court of Revision or Board of Revision.

No right to vote

17(3)       Where the councillor sits on any body which considers a matter referred to in subsection (1), the councillor shall not vote on the matter.

S.M. 2002, c. 39, s. 528.

Disqualification for violation

18(1)       A councillor who violates any provision of this Act is disqualified from office, and the councillor's seat on council becomes vacant, as of the time of the declarations referred to in clauses 21(1)(a) and 21(2)(a).

Disqualification for failure to file statement

18(2)       For purposes of subsection (1), a councillor violates subsection 9(1) only where, after receiving the notification referred to in subsection 9(2), the councillor fails to file the required statement within the time period referred to in subsection 9(2).

Effect on other business

18(3)       Subject to section 8, no decision or transaction, and no procedure undertaken by a municipality with respect to a decision or transaction, is void or voidable by reason of a violation of this Act.

Application by clerk to Q. B.

19          Where it is alleged that a councillor has violated a provision of this Act, the council of which he is a member may direct the clerk of the municipality to apply by originating notice to a judge of the Court of Queen's Bench for a declaration that the councillor has violated a provision of this Act.

Application by elector to Q.B.

20(1)       Where it is alleged that a councillor has violated a provision of this Act, and if there is no previous application outstanding or determined on the same facts, an elector may apply ex parte to a judge of the Court of Queen's Bench for authorization to apply for a declaration that the councillor has violated a provision of this Act.

Affidavit and security for application

20(2)       An elector who files an ex parte application under subsection (1) shall

(a) file an affidavit showing details of the alleged violation; and

(b) pay into court the sum of $300. as security for the application.

Summary dismissal or authorizing of application

20(3)       Upon hearing the ex parte application, the judge may

(a) dismiss the application and order forfeiture of all or part of the security referred to in clause (2)(b); or

(b) authorize the applicant to apply to another judge of the Court of Queen's Bench for a declaration that the councillor has violated a provision of this Act.

Disposition after hearing

21(1)       Upon hearing any application for a declaration that a councillor has violated a provision of this Act and such evidence as may be adduced, the judge may

(a) declare that the councillor has violated a provision of this Act; or

(b) refuse to make the declaration;

and in either case, with or without costs.

Penalty for violation

21(2)       Where the judge declares that the councillor has violated a provision of this Act, the judge

(a) shall declare the seat of the councillor vacant; and

(b) may, where the councillor has realized pecuniary gain in any transaction to which the violation relates, order the councillor to make restitution to any person, including the municipality, affected by the pecuniary gain.

Unknowing or inadvertent breach

22          Notwithstanding anything in this Act, where a judge finds that a councillor violated a provision of this Act unknowingly or through inadvertence, the councillor is not disqualified from office, and the judge shall not declare the seat of the councillor vacant, in consequence of the violation.

Election not to preclude application

23          An application for a declaration that a councillor has violated a provision of this Act may be brought notwithstanding that the councillor against whom the declaration is sought resigned or did not seek re-election, or was not re-nominated, or was re-elected or defeated subsequent to the alleged violation of this Act.

Application for restitution

24          Notwithstanding anything in this Act, where any person, whether the person is or was a councillor or not, has realized pecuniary gain in any transaction to which a violation of this Act relates, any person affected by the pecuniary gain, including any municipality, may apply to a court of competent jurisdiction for an order of restitution against the person who has realized the pecuniary gain.

Limitation period for declaration

25(1)       No application for a declaration that a councillor has violated a provision of this Act shall be brought more than six years after the date of the alleged violation.

Limitation period for order of restitution

25(2)       No application for an order of restitution under section 24 shall be brought more than six years after the date of the transaction which results in the alleged pecuniary gain.

No other proceedings

26           Proceedings to declare the seat of a councillor vacant, or for an order of restitution, in consequence of a violation of this Act shall be had and taken only under the provisions of this Act, and not by way of application for a writ of quo warranto or by a proceeding under any other Act of the Legislature or otherwise.

Summary Convictions Act not to apply

27          No violation of any provision of this Act is an offence for purposes of The Summary Convictions Act.

 

 


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