Integrity Commissioner Rejects Conflict of Interest Complaint against Councillor Kelvin Galbraith

By Pepper Parr

February 28^th, 2024

BURLINGTON, ON

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A complaint that ward 1 Councillor Kelvin Galbraith had a Conflict of Interest that he did not declare related to the 1062-1072 Cook Boulevard was dismissed by Principals Integrity.

There have been 39 occasions when the Integrity Commissioner has met with a member of Council.  Most were the Council member asking for advice on a matter that could have Conflict of Interest concerns or Council Governance Code of Conduct matters. Councillor Galbraith met with the Integrity Commissioner more than any other member of Council.

Mayor Meed Ward and Councillor Nisan have met with the Integrity Commissioner as well.  Ward 4 Councillor Shawna Stolte was sanctioned by eh Commissioner and docked five days pay.

The most recent complaint was that on January  8, 2024 Councillor Galbraith participated in consideration of a development proposal at Committee of the Whole relating to 1062-1072 Cook Boulevard. The complaint argued that in doing so Galbraith was in a conflict of interest.

In a disposition report Principles Integrity, the Integrity Commissioner hired by  the City of Burlington said:

“The complainant argued that Galbraith’s ownership of 3 properties at the northwest corner of Plains Rd. West and Waterdown Rd properties would raise a conflict of interest contrary to the Municipal Conflict of Interest Act (the ‘MCIA’).

“As part of our review process, and in accordance with the tenets of procedural fairness, we forwarded your complaint to the Councillor for his response. We have now had an opportunity to obtain and review that response as well as to review a map of the area delineating the area covered by the required Planning Act notice from the property at 1062-1072 Cook Boulevard. We are attaching that map to this disposition, for clarity.

“Our past advice to the Councillor regarding managing perceived interests created by his ownership of the Plains Rd./Waterdown Rd. properties has been that the planning notice distance of 120 m can be used as a proxy (a rule of thumb) for when a disqualifying interest arises (a conflict of interest).

“The Councillor’s properties are located at 15 Plains Road West, and 1016 and 1018 Waterdown Road.

Analysis

“Our analysis, regarding allegations of conflict of interest arising out of property ownership by a member of Council, focuses on the potential for pecuniary interest, as contemplated by the Municipal Conflict of Interest Act (MCIA). Any matter which has likely financial impact (positive or negative) on the Member’s own property constitutes a pecuniary interest to the Member. A pecuniary interest, although not defined, is understood to mean a financial impact.

“The MCIA does not provide guidance on how to recognize an interest arising on planning applications in relation to the Member’s own properties. Each conflict of interest must be assessed on its own merits, and such assessment requires a close review of the facts. There is a significant body of case law which guides Integrity Commissioners on the proper interpretation.

“Out of that case law has evolved the reliance on the 120 m notice distance mandated under the Planning Act – the distance from any planning application within which all properties lying in that radius receive notice of the application. This distance is utilized because, for planning legislation purposes in Ontario, it has been historically accepted that properties within that radius might reasonably be financially impacted by the development. This is the basis for using the 120 m distance as a proxy for whether a member whose property is located near a planning application is considered to have a pecuniary interest in the matter.

“It must be recognized that the 120 m distance has been arrived at through case law consideration of the MCIA; departing from this ‘rule of thumb’ requires some justification based on particular facts which can be considered to countermand its applicability.

“One of the leading cases dealing with recognizing a pecuniary interest in circumstances of property ownership is Greene and Borins1.

“In that case, member’s father and family had been assembling properties for some years, in anticipation of redevelopment (along Yonge Street in North York). The nine (9) properties had been acquired over the preceding years, which stood to be significantly impacted by redevelopment of the Yonge Street corridor. Some of their properties were adjacent to and abutted some of the lands subject to the development proposals for the Yonge Street corridor.

“The court determined that the member’s participation on the large and comprehensive development proposals on the Yonge Street corridor triggered a conflict of interest for the member, even beyond 120 m, for which the member had failed to obtain advice and failed to declare an interest.

“Certainly, where a member has a significant investment (in that case, 9 properties) in a land assembly awaiting redevelopment (as in Greene and Borins), and those properties are immediately adjacent to and abutting a large and comprehensive development proposal, it would be reasonable to consider that a strict reliance on the 120 m distance is countermanded.

“The facts in this complaint are significantly different. One of Councillor Galbraith’s 3 properties is the building from which he operates his fitness business. While it might be fair to characterize the other two as awaiting redevelopment, they hardly constitute a sizable land assembly. They are not immediately adjacent to the development application; and the development application cannot be characterized as a large and comprehensive redevelopment proposal. Finally, and significantly, Councillor Galbraith has sought, obtained and relied on the advice of the Integrity Commissioner in regard to conflicts of interest.

“The nearest of his properties is beyond the 120 m ‘as the crow flies’ to the property subject to the development application in which he participated on January 8, 2024. This can be confirmed by looking at the site map provided. A cursory review of the map reveals that the Councillor’s  property which lies nearest to 1062-1072 Cook Boulevard is beyond the radius delineated by the 120 m planning notice distance, and on the opposite side of Waterdown Road. It is also evident that there are 4 intervening properties which lie between the farthest point of the 120 m radius and the nearest of the Councillor’s properties.

“Although you may not agree with application of the planning notice distance of 120 m as the ‘rule of thumb’, and while there may well be circumstances in which it is not appropriate to rely on that rule of thumb, we are satisfied that the facts of this case do not support a finding of conflict of interest.

“Your complaint asserts the common law concept of conflicts of interest which is captured by reference in the Burlington Code of Good Governance. The common law does extend the statutory concept of conflicts of interest by recognizing, through case law and judicial inquiries, that it may not be necessary to identify a pecuniary interest (direct or indirect) under the MCIA in order for there to be a perception that there exists an interest sufficient to disqualify the member from participating. For example, if the member’s best friend were the applicant, the member would be expected to recognize a disqualifying interest (a conflict of interest) based on the relationship, regardless of the member having no personal pecuniary interest in the matter.

“The common law concept does not, however, change the jurisprudence and, in our view, it would be an error to determine that, despite the clear establishment of a pecuniary interest for proximity to a development application being 120 m, the common law allows Integrity Commissioners to arbitrarily establish a different distance.

“Finally, while there is no doubt that the Councillor’s property may benefit from redevelopment in the downtown area, these benefits would accrue to most if not all property owners across the downtown and therefore we would consider that to be an interest in common as defined by the MCIA and as interpreted by the case law.

“In our view, the Councillor did not breach the MCIA in participating on consideration of this application. Applying the ‘rule of thumb’, his properties are not sufficiently proximate to the property subject to the development application to trigger a conflict of interest.

“We are satisfied that the Member has adhered to best practice in regard to obtaining and following the advice of the Integrity Commissioner. Accordingly, we will be closing our file. Our disposition will be shared with the Member.”

The complaint was taken to the Integrity Commisioner by Pepper Parr, the publisher of the Burlington Gazette.

In May of 2023 the Gazette published an article on the same Galbraith properties (on the east side of Waterdown) which are directly across the street from 1029 – 1033 Waterdown Road where a 29 storey development application has been made.  That development is currently before the Ontario Land Tribunal.

Link to that story is HERE