Policy on Filling Vacancies on City Council
The Administration Committee recommends:
(1) the adoption of the report (October 21, 1999) from the City Clerk; and
(2) that the Province of Ontario be requested to amend the Municipal Elections Act to disallow any person from
seeking municipal office who has been convicted of a crime arising from his/her conduct as an elected official.
The Administration Committee submits the following report (October 21, 1999) from the City Clerk:
Purpose:
This report responds to a request from Council for staff to develop a policy on the methods to fill future vacancies on City
Council.
Source of Funds:
Not applicable.
Recommendations:
It is recommended that:
(1) any vacancy in the office of the Mayor or a Councillor declared by Council prior to July 31 in the year prior to an
election year be filled through the conduct of a by-election;
(2) any vacancy in the office of the Mayor or a Councillor declared by Council after July 31 in the year prior to an election
year be filled through an appointment; and
(3) the recommended procedures for filling a vacancy through an appointment, as outlined in Appendix "A", be adopted.
Council Background/Reference:
On July 27, 28, 29 and 30, 1999, City Council, in adopting Clause No. 1 of Report No. 3 of The Administration Committee
[Filling of Council Vacancy - Scarborough Highland Creek (Ward 16)], approved the following recommendation:
AIt is further recommended that the City Clerk be requested to submit a report to the next meeting of City Council,
scheduled to be held on September 28, 1999, through the Administration Committee, and not related to this particular
by-election, on options to establish a policy and/or by-law to address methods of filling future vacancies on City Council,
so as to provide that the filling of vacancies is not left to the discretion of Members of Council.@
Comments and/or Justification:
The Municipal Act contains certain provisions Council must follow when filling a vacancy on Council. Section 43 of the
Act states that Awhere the seat of a member of council becomes vacant under section 38, the council shall forthwith declare
the seat to be vacant@. Should Council neglect to make such a declaration, an elector may commence court action for a
declaration that the office of a Member of Council has become vacant in accordance with the Municipal Act.
Generally, Council has two available options for filling a vacancy; through an appointment or through the conduct of a
by-election. These options apply to vacancies in the offices of both the Mayor and Councillors. Council=s discretion is
only restricted if the vacancy occurs after March 31 in the year of a regular election. In this instance, Council must fill the
vacancy by way of an appointment within forty-five days of the vacancy occurring; a by-election may not be held. If the
vacancy occurs less than forty-six days before nomination day in a regular election, the vacancy need not be filled.
The person appointed or elected to fill a vacancy shall hold office for the remainder of the term of the Member of Council.
(1) Appointment:
Section 45 of the Municipal Act permits Council, at a meeting called for that purpose, to fill a vacancy by appointing a
person who has consented to accept the office and who is qualified to hold the office. To be qualified, a person must be:
(a) eighteen years of age or older;
(b) a Canadian citizen;
(c) a resident of the City of Toronto or the owner or tenant of land in the City of Toronto or the spouse of such an owner or
tenant; and
(d) not disqualified under any Act from holding municipal office.
If the vacancy is in the office of mayor, in addition to the above noted qualifications, the person appointed must be a
current Member of Council on the date of the appointment.
If more than one person is nominated for appointment, a vote of the Members of Council shall be taken by the Clerk. The
person who receives the votes of more than one-half of the number of all Members of Council shall fill the vacancy.
The recommended procedures to be followed in appointing a person to fill a vacancy on Council are set out in Appendix
AA@ attached hereto.
Advantages:
(1) less costly procedure than conducting a by-election (estimated $20,000 in advertising costs to seek persons interested in
being appointed);
(2) process can be completed in a timely manner; and
(3) less labour intensive and less costly process from a staffing perspective.
Disadvantages:
(1) could be viewed as a less democratic process; and
(2) it could be perceived that Council was affording an advantage to the individual appointed should he or she decide to run
in the next municipal election.
(2) By-Election:
Section 46 of the Municipal Act permits Council to pass a by-law to provide that a vacancy on Council shall be filled by
way of a by-election. The by-election shall be held in accordance with Section 65 of the Municipal Elections Act, 1996.
Under section 65 of the Municipal Elections Act, 1996, if Council determines that a by-election is to be held, the Clerk is
responsible for setting the date of nomination day, which is to be a day not more than thirty days after the passing of the
by-law indicating a by-election is required. Voting day shall be thirty-one days after nomination day. The by-election shall
be conducted as far as possible in the same manner as a regular election.
As noted above, no by-election may be held to fill a vacancy that occurs after March 31 in the year of a regular election.
Advantages:
(1) best ensures a democratic process for constituents; and
(2) provides an opportunity for election staff to test new procedures and processes in advance of a regular election.
Disadvantages:
(1) more costly process than an appointment (a single member ward by-election is estimated to cost $85,000 plus $35,000
for a contribution rebate program);
(2) a by-election is a longer time process than an appointment; and
(3) more labour intensive and costly process from a staffing perspective.
Past Practices in Filling Vacancies:
In reviewing past practices in the former municipalities now making up the City of Toronto, staff researched Council
vacancies back to 1984 and found a total of nineteen vacancies that were filled. Of these nineteen vacancies, eleven were
filled by appointment and eight through by-elections.
Of the eleven appointments, nine were in a regular election year, six of which were after the mandatory March 31st date as
provided by the Municipal Act. The remaining two appointments were made in the year preceding an election year. One
was made in the month of June and the other in the month of October. In the subsequent municipal election six of the
eleven ran for office.
Of the eight by-elections, none were in an election year. Four were held in the year preceding an election year. The
remaining four by-elections were held in the year immediately following the previous municipal election. In the subsequent
municipal election, seven of the eight ran for office.
During this first term of Toronto City Council, two by-elections have been conducted to date. The first (September 24,
1998) was mandated by Provincial legislation to give East York (Ward 1) a third Council Member. The second (September
23, 1999) was as a result of Council=s decision to hold a by-election to fill the recent vacancy in Scarborough Highland
Creek (Ward 16).
Analysis:
Other than the cost differential, there are three major factors to be considered in deciding between an appointment and the
conduct of a by-election to fill a vacancy.
(a) The Timing of the Vacancy:
There is more merit in filling a vacancy through a by-election the earlier the vacancy occurs in the Council term.
Conversely, the later the vacancy occurs, the more justification there is to appointing a person to fill the vacancy. The
Provincial legislation recognizes this fact by stipulating that all vacancies after March 31 in an election year are to be filled
through an appointment.
(b) Whether the Vacancy is for the Office of the Mayor or a Councillor:
Some might argue there should be different rules in filling a vacancy in the office of the Mayor than a vacancy in the office
of a Councillor. The only distinction the legislation makes in this regard is that if an appointment is to be made to fill the
office of the Mayor, the person appointed must be a current Member of Council. This recognizes the fact the person would
have been elected by at least some of the electorate (in Toronto=s case, this would be on a ward basis).
(c) The Wishes of the Constituents:
Many constituents would argue they should always be given the opportunity to vote for a person to fill the vacancy, this is
the essence of a democratic society. However, the voter turnout at by-elections is traditionally very low which would
perhaps indicate voter apathy in the process. For example, in the two by-elections conducted during this term of Council,
the voter turnout was 19 per cent for East York (Ward 1) and 18 per cent for Scarborough Highland Creek (Ward 16) as
compared to a 45.65 per cent turnout in the 1997 general municipal election.
In addition, constituents, together with other potential candidates, may argue that Council is giving an unfair advantage to
the person appointed should he or she decide to run in the next municipal election. As noted in the past practices of the
former municipalities, six of the eleven appointees subsequently ran for office.
By providing Council with total discretion in the manner in which vacancies are to be filled (other than the restrictions
during an election year), the Provincial Legislature recognizes that this is ultimately a political decision, there is not one
general rule that will satisfy the particular circumstances of all vacancies.
In the development of this policy on the method of filling vacancies on Council, staff have attempted to balance democratic
principles with Council=s stated desire for a policy which would remove its discretion in the manner in which vacancies
are to be filled.
The term of Council begins on December 1 in the year of a regular election and ends thirty-six months later on November
30 in the year of a regular election. The Municipal Act requires vacancies occurring after March 31 in an election year to be
filled through an appointment. This means that up to the end of the twenty-eighth month of the Council term, a vacancy
can be filled by either a by-election or an appointment. The by-election process takes a maximum of 61 days
(approximately two months) and, depending on the timing of the vacancy in terms of Council=s meeting schedule, up to
two months could pass before Council would make a decision on how to fill the vacancy.
The date that Council declares the seat to be vacant would be the appropriate date to use for the purposes of a policy on
whether to fill the vacancy through an appointment or the conduct of a by-election. Section 43 of the Municipal Act
requires Council to Aforthwith@ declare the seat to be vacant. While forthwith is not a defined term in the Act, the
generally accepted definition is Aimmediately@.
Staff recommend that any vacancy declared by Council prior to July 31 in the year prior to an election year shall be filled
through a by-election. Any vacancy declared after July 31 in the year prior to an election year would be filled through an
appointment.
July 31 was chosen as the dividing line date as Council does not meet in August and if Council were to decide at its
September meeting to have a by-election, it could not be held until near the end of November which is only four months
away from the March 31 cut-off date. Council changes the membership of its Committees after eighteen months, being the
halfway mark of the term. It is not recommended that this date be used as it might result in a by-election being conducted
during the summer months should Council declare the vacancy immediately prior to the cut-off date. Summer by-elections
should be avoided as many electors would be on vacation and therefore unavailable to vote.
Staff recommend that this policy apply in the case of vacancies in both the Mayor=s office and the Councillor=s office.
Conclusion:
Staff are recommending that vacancies in the office of a Member of Council declared by Council prior to July 31 in the
year prior to an election year be filled through a by-election. Vacancies occurring after this date would be filled through an
appointment.
Council is also requested to approve the recommended procedures for filling a vacancy through an appointment as outlined
in Appendix AA@.
Contact Name:
John Hollins, Director of Elections
Telephone No.: 392-8019
E-mail: jhollins@city.north-york.on.ca
_________
Appendix AA@
Procedures for Filling a Councillor=s Vacancy Through an Appointment
(1) Council shall declare the seat of the Member of Council to be vacant at the next regularly scheduled Council meeting
following the occurrence of the vacancy or at a special Council meeting called by the Mayor or requested in writing by a
majority of all Members of Council.
(2) Advertisements shall be placed in the four major daily newspapers and in the local newspaper serving the applicable
ward. The advertisements shall indicate Council=s intention to appoint a person to the vacancy and outline the process one
must follow to become nominated. In addition, notice will be sent to all ratepayers= groups, tenant associations,
condominium associations and other individuals in the City who request notice.
(3) Information sessions shall be conducted by staff. All interested persons must attend one of these sessions and complete
a Consent of Nominee form and a Statement of Qualification.
(4) The vote shall occur at a Council Meeting called for that purpose.
(5) The meeting shall be called to order by the Mayor or the Presiding Officer at the designated time.
(6) The Mayor or Presiding Officer shall make a short statement of the purpose of the meeting and the general order of
proceedings to be followed.
(7) The Clerk will provide to the Mayor or Presiding Officer a list of the names of those candidates who have completed
the Consent of Nominee and Statement of Qualification and the Mayor or Presiding Officer will call for a motion from
Council in the following form:
AMoved by...
Seconded by...
THAT the following persons, who have signified in writing that they are legally qualified to hold the office of Councillor
and consented to accept the office if they are appointed to fill the vacancy of Councillor, shall be considered for
appointment to fill such vacancy.@
(8) Each of the candidates shall be afforded the opportunity to address Council for a period of not more than five minutes.
The order of speaking will be determined by lot. (The Clerk shall place the names of all candidates in a container and
randomly draw the names.)
(9) Each Member of Council will be allowed no more than one question to each candidate.
(10) Upon hearing all the submissions of the candidates, Council will proceed to vote as follows:
(a) Members of Council will vote by way of ballot;
(b) following the procedure set out in subsection 45(4) of the Municipal Act, where the candidate receiving the greatest
number of votes cast does not receive more than one-half the votes of all Members of Council, the candidate or candidates
who received the fewest number of votes shall be excluded from the voting and the vote will be taken again by the Clerk
and, if necessary, more than once, excluding in each successive vote the candidate or candidates who receive the fewest
number of votes in the preceding vote, until the candidate receiving the greatest number of votes has also received more
than one-half of the votes of the Members of Council present and voting;
(c) where the votes cast are equal for all the candidates:
(i) if there are three or more candidates remaining, the Clerk shall by lot select one such candidate to be excluded from the
subsequent voting;
(ii) if only two candidates remain, the tie shall be broken and the vacancy shall be filled by the candidate selected by lot
conducted by the Clerk;
(iii) Alot@ means the method of determining the candidate to be excluded or the candidate to fill the vacancy, as the case
may be, by placing the names of the candidates on equal size pieces of paper placed in a container and one name being
drawn by a person chosen by the Clerk.
(11) Upon conclusion of the voting, the Clerk will declare to be elected the candidate receiving the votes of more than
one-half of the number of the Members of Council present and voting.
(12) A by-law confirming the appointment shall be enacted by Council appointing the successful candidate to the office for
the remainder of the term of the present Council.
_________
Procedures for Filling a Mayor=s Vacancy Through an Appointment
(1) Council shall declare the seat of the Mayor to be vacant at the next regularly scheduled Council meeting following the
occurrence of the vacancy or at a special Council meeting requested in writing by a majority of all Members of Council.
(2) The vote shall occur at a Council Meeting called for that purpose.
(3) Any Member of Council wishing to be considered for appointment to the vacancy shall advise the Clerk in writing by
12:00 noon, five business days prior to the meeting.
(4) The meeting shall be called to order by the Presiding Officer at the designated time.
(5) The Presiding Officer shall make a short statement of the purpose of the meeting and the general order of proceedings
to be followed.
(6) The Clerk will provide to the Presiding Officer a list of the names of those Members of Council who have indicated in
writing their interest in being appointed to the vacancy and the Presiding Officer will call for a motion from Council in the
following form:
AMoved by
Seconded by
THAT the following persons, who have signified in writing their interest in being appointed to the office of Mayor, shall be
considered for appointment to fill such vacancy.@
(7) Each of the candidate Members of Council shall be afforded the opportunity to address Council for a period of not more
than five minutes. The order of speaking will be determined by lot. (The Clerk shall place the names of all candidates in a
container and randomly draw the names.)
(8) Each Member of Council will be allowed no more than one question to each candidate.
(9) Upon hearing all the submissions of the candidates, Council will proceed to vote as follows:
(a) Members of Council will vote by way of ballot;
(b) following the procedure set out in subsection 45(4) of the Municipal Act, where the candidate receiving the greatest
number of votes cast does not receive more than one-half the votes of all Members of Council, the candidate or candidates
who received the fewest number of votes shall be excluded from the voting and the vote will be taken again by the Clerk
and, if necessary, more than once, excluding in each successive vote the candidate or candidates who receive the fewest
number of votes in the preceding vote, until the candidate receiving the greatest number of votes has also received more
than one-half of the votes of the Members of Council present and voting;
(c) where the votes cast are equal for all the candidates:
(i) if there are three or more candidates remaining, the Clerk shall by lot select one such candidate to be excluded from the
subsequent voting;
(ii) if only two candidates remain, the tie shall be broken and the vacancy shall be filled by the candidate selected by lot
conducted by the Clerk;
(iii) Alot@ means the method of determining the candidate to be excluded or the candidate to fill the vacancy, as the case
may be, by placing the names of the candidates on equal size pieces of paper placed in a container and one name being
drawn by a person chosen by the Clerk.
(10) Upon conclusion of the voting, the Clerk will declare to be elected the candidate receiving the votes of more than
one-half of the number of the Members of Council present and voting.
(11) A by-law confirming the appointment shall be enacted by Council appointing the successful candidate to the office for
the remainder of the term of the present Council.
The Administration Committee also submits the following report (November 17, 1999) from the City Clerk, entitled
"Other Canadian Municipal Policies/Practices on Filling Vacancies on Council":
Purpose:
This report responds to a request from the Administration Committee to report on the practices by other large Canadian
cities in filling vacancies on municipal council.
Funding Sources, Financial Implications and Impact Statement:
Not applicable.
Recommendations:
It is recommended that this report be received for information.
Council Background/Reference:
On July 27, 28, 29 and 30, 1999, City Council, in adopting Clause No. 1 of Report No. 3 of The Administration Committee
[Filling of Council Vacancy - Scarborough Highland Creek (Ward 16)], approved the following recommendation:
"It is further recommended that the City Clerk be requested to submit a report to the next meeting of City Council,
scheduled to be held on September 28, 1999, through the Administration Committee, and not related to this particular
by-election, on options to establish a policy and/or by-law to address methods of filling future vacancies on City Council,
so as to provide that the filling of vacancies is not left to the discretion of Members of Council."
On November 2, 1999, the Administration Committee had before it a report (October 21, 1999) from the City Clerk in
response to the foregoing direction by City Council; and recommended that:
"(1) any vacancy in the office of the Mayor or a Councillor declared by Council prior to July 31 in the year prior to an
election year be filled through the conduct of a by-election;
(2) any vacancy in the office of the Mayor or a Councillor declared by Council after July 31 in the year prior to an election
year be filled through an appointment; and
(3) the recommended procedures for filling a vacancy through an appointment, as outlined in Appendix "A", be adopted."
The Administration Committee:
"(1) deferred consideration of the aforementioned report until its meeting scheduled to
be held on November 30, 1999; and
(2) referred the following motions to the City Solicitor for report to the aforementioned meeting of the Administration
Committee as to whether Council may adopt a policy set out in the following motions; and as to whether the original
direction from Council respecting this matter was in order:
Moved by Councillor Adams on behalf of Councillor Korwin-Kucincynski:
"That anyone appointed by Council be requested to indicate, in writing, that they will not run for election in the next
election."
Moved by Councillor Adams on behalf of Councillor Soknacki:
"That the Administration Committee recommend to Council the adoption of the report (October 21, 1999) from the City
Clerk, subject to deleting the date "July 31" and inserting in lieu thereof the date "September 30"; and
That the appointment process for Councillors outlined in Appendix "A" be considered by the Community Council where
the vacancy occurs."
Moved by Councillor Miller on behalf of Councillor Nunziata:
"That the City Solicitor be requested to submit a report to the Administration Committee on the eligibility of a person
becoming a City Councillor who has been charged or convicted of a criminal offence including municipal corruption;"; and
(3) requested the City Clerk to submit a further report to the aforementioned meeting of the Administration Committee on
the practices by other large cities in Canada respecting this issue."
This report responds to item (3) above.
Background:
As instructed, Elections staff have contacted several large Canadian municipalities to determine what, if any, policies
and/or practices exist in filling vacancies on municipal council. To obtain a representative sample, staff ensured that at
least one municipality was contacted in each province along with the Yukon and Northwest Territories.
(1) Mississauga:
There has never been a mid-term vacancy on Mississauga City Council so no policy or practice exists.
(2) London:
On February 16, 1970, London City Council adopted a policy that in the event there is a vacancy in the office of
Councillor, the vacancy shall be filled by appointing the runner-up from the list of persons who ran for the office of
Councillor in the Ward for which the vacancy exists at the immediately preceding municipal election, provided that such
person has polled at least 50 percent of the number of votes cast for the second Councillor candidate in the Ward (two
Councillors are elected per Ward in London), failing which the appointment shall be made by the Municipal Council.
[Council Policy 5(2)].
The City does not have a written policy on filling vacancies in the office of the Mayor, but relies on the discretion afforded
by the Municipal Act to either hold a by-election or make an appointment.
(3) Ottawa:
Ottawa does not have an established policy in filling vacancies on council. It is left to the discretion of council at the time
the vacancy occurs.
(4) Vancouver:
Under the Vancouver Charter, a by-election must be held to fill a vacancy on Council. However, Council may decide not to
conduct a by-election:
(a) if the vacancy occurs after July 1 in the year of a general election; or
(b) if all the following circumstances apply:
(i) the vacancy occurs after January 1 in the year of a general election;
(ii) the vacancy is not in an office elected on the basis of a neighbourhood constituency; and
(iii) the number of remaining Council members is at least one greater than the quorum for the Council.
(5) Edmonton:
There is no policy that deals with vacancies on Council; the City follows the provisions set out in the Municipal
Government Act when filling vacancies.
If the vacancy is in the office of Councillor, a by-election must be held to fill the vacancy unless:
(a) the vacancy occurs in the six months before a general election; or
(b) the council consists of six or more councillors and the vacancy occurs:
(i) in the 18 months before a general election and there is only one vacancy, or
(ii) in the 12 months before a general election and the number of councillors remaining is at least one more than the
majority of the number of councillors comprising the council.
If the vacancy is in the office of the Chief Elected Official (CEO), which is the City's equivalent to the Mayor, and the
CEO is elected by a vote of the electors, the vacancy must be filled:
(a) by a by-election, if on the date of the vacancy occurring, there are 12 or more months left before the next general
election; or
(b) by either a by-election or Council appointing a Councillor to the office, if on the date of the vacancy occurring, there
are less than 12 months left before the next general election.
If the CEO is appointed by Council from among the Councillors, rather than by a vote of the electors, any vacancy is filled
by Council appointing another Councillor to the office.
(6) Regina and Saskatoon:
These Cities follow the provisions of the Local Government Election Act in filling council vacancies. The Act provides that
if a vacancy occurs, a by-election shall be held to fill the vacancy. However, if the vacancy occurs after January 1 in the
year of a general election, the Council may either fill the vacancy through a by-election or decide not to fill the vacancy
until the general election.
(7) Winnipeg:
The City follows the provisions of the City of Winnipeg Act in filling council vacancies. The Act provides that a by-election
shall be held to fill a vacancy. However, if a vacancy occurs in the office of Councillor and there is six months or less
remaining in the term of office, the Council may decide to leave the office vacant.
Similarly, if the office of Mayor becomes vacant and there are 12 months or less remaining in the term of office, the deputy
mayor shall perform the duties and exercise the powers of the mayor.
(8) Montreal:
The City of Montreal follows the provisions of the Elections and Referendums in Municipalities Act in filling vacancies.
The Act provides that any vacancy occurring more than 12 months before the next general election must be filled by a
by-election.
If there are 12 months or less remaining before the next general election, the Council may hold a by-election. If Council
decides not to hold a by-election and the vacancy is in the office of Mayor, the Councillors shall elect one of the
Councillors to fill the vacancy. If the vacancy is in the office of Councillor and Council decides not to hold a by-election,
the vacancy shall not be filled.
(9) Fredericton:
The City relies on the provisions of the Municipalities Act in filling Council vacancies. The Act requires a by-election to be
held to fill a vacancy. However, a by-election shall not be held if the vacancy occurs during the twelve months preceding
the next general election.
(10) Halifax:
The City follows the provisions of the Municipal Elections Act in filling vacancies. The Act provides that a by-election
shall be held to fill a vacancy on council. However, if the vacancy occurs within six months of the next general election, a
by-election need not be held.
(11) Charlottetown:
The City follows the provisions of the Charlottetown Area Municipalities Act in filling vacancies on Council. The Act
provides that a by-election must be held to fill any vacancy in the offices of mayor or councillor. However, if the vacancy
occurs within six months of the next general election, a by-election need not be held.
(12) St. John's:
The City follows the provisions of the City of St. John's Act in filling council vacancies. The Act provides that a by-election
must be held to fill a vacancy on council. However, if the vacancy occurs less than two years from the next general
election, the vacancy need not be filled. (St. John's Council has a four year term.)
(13) Yellowknife:
The City has a written policy on filling vacancies on Council. Vacancies shall be filled in accordance with the Local
Authorities Election Act taking into consideration the following principles:
(a) vacancies in the offices of the Mayor or Councillor that occur during the first two years of the term, shall be filled by a
by-election;
(b) vacancies in the office of the Mayor which occur during the final year of the term, shall be filled either by a by-election
or by the appointment of a Council Member to the office; and
(c) vacancies in the office of Councillor during the final year of the term, shall be filled by appointment.
A recommendation is currently being brought forward to amend the above noted policy to provide that a vacancy in the
office of Mayor that occurs in the final year of the term, shall be filled by the appointment of a Council Member, i.e. the
by-election option is being removed.
(14) Whitehorse:
The City follows the provisions of the Yukon Municipal Act in filling Council vacancies, which provides that a by-election
shall be held to fill the vacancy. However, if the vacancy occurs after February 1 in the year of a general election, Council
need not fill the vacancy if the remaining number of members of a council is:
(a) for a city, at least six councillors and one mayor; and
(b) for a town, at least four councillors and one mayor.
Conclusions:
With the exception of the City of London and the City of Yellowknife, which have a written policy for the filling of
vacancies, all other municipalities surveyed follow the provisions of their applicable Acts. Generally, these Acts provide for
all vacancies to be filled through a by-election except when the vacancy occurs within a defined time frame before the next
general election (usually either six or twelve months).
Ontario's Municipal Act appears to be unique in giving a council total discretion in filling a vacancy through either the
conduct of a by-election or an appointment.
Contact Name:
John Hollins, Director of Elections, City Clerk's Division
Telephone: (416) 392-8019 E-mail: jhollins@toronto.ca
The Administration Committee also submits the following report (November 17, 1999) from the City Solicitor,
entitled "Appointment of Persons to Fill a Council Vacancy":
Purpose:
The purpose of this report is to respond to the Committee's request for a report on issues concerning the appointment of
persons to fill a Council vacancy, the Clerk's report on a policy for filling vacancies on City Council, and to address the
eligibility of persons to hold the office of City councillor who have been charged or convicted of a criminal offence,
including municipal corruption.
Funding Implications and Impact Statement:
There are no financial implications resulting from the adoption of this report.
Recommendations:
It is recommended that this report be received for information.
Background:
At its meeting held on November 2, 1999 the Administration Committee requested that the City Solicitor report to its next
meeting on a motion "that anyone appointed by Council be requested to indicate, in writing, that they will not run for
election in the next election". The Committee also referred a motion recommending adoption of the policy on filling
vacancies on City Council to the City Solicitor for a report. Finally, the Committee requested that the City Solicitor submit
a report on the eligibility of a person becoming a City Councillor who has been charged or convicted of a criminal offence
including municipal corruption.
Comments:
Section 45 of the Municipal Act authorizes City Council to fill a vacancy in the office of a member of the Council by
appointing a person who has consented to accept the office if he or she is appointed to fill the vacancy, except where the
vacancy occurs after March 31 in the year of a regular election. There is no legislative authority for Council to require a
person to agree not to run for election in the next election as a condition to being nominated or appointed to fill a vacancy.
Consequently, if Council were to make such a request, it would not be legally binding and would not prevent the person
appointed from running for election in the next election.
The City Clerk's report of October 21, 1999, recommending Council adopt a policy regarding when Council vacancies
should be filled by appointment and when they should be filled by by-election has also been referred to me. The City Clerk
report sets out the applicable legislative provisions and the advantages and disadvantages of appointment and of holding
by-elections. It responds to City Council's request that the City Clerk report "on the options to establish a policy and/or
by-law to address methods of filling future vacancies on City Council, so as to provide that the filling of vacancies is not
left to the discretion of Members of Council." Legally, Council cannot fetter its discretion to determine whether to appoint
or hold a by-election to fill a vacancy. The City Clerk's report recommends a policy that could be used by City Council in
determining when to fill a vacancy through appointment and when a by-election is most appropriate. Legally, Council must
consider the merits of filling a vacancy on City Council by appointment or through a by-election as each situation arises.
Consequently, if adopted, a policy could be used as a guideline by City Council in making such decisions when these
situations arise, but it would not be binding.
Regarding the eligibility of a person becoming a City Councillor who has been charged or convicted of a criminal offence
including municipal corruption, subsection 29(1) of the Municipal Elections Act provides that a person may be nominated
for the office of City Councillor only if the person is qualified to hold office under the Municipal Act and, is not ineligible
under the Municipal Elections Act or any other Act, or otherwise prohibited by law to be nominated for or to hold office. A
person who is entitled to be an elector in the local municipality is qualified to hold office under the Municipal Act unless
otherwise disqualified. Grounds for disqualification are set out in section 37 of the Municipal Act and section 17 of the
Municipal Elections Act, 1996. When read together, the legislation disqualifies a person from running for the office of City
Councillor in the following circumstances:
(i) a person who does not own or rent (either directly or through a spouse), or reside in the City;
(ii) a person who is not a Canadian citizen;
(iii) a person who is under 18 years old;
(iv) a person who is serving a sentence of imprisonment in a penal or correctional institution;
(v) a person who was convicted of the corrupt practice described in subsection 90(3) of the Municipal Elections Act, 1996
if voting day in the current election is less than 4 years after the voting day in the election in respect of the year in which
the person was convicted.
These offences relate to the giving or accepting, or promising or agreeing to give or accept consideration in connection
with the exercise or non-exercise of an elector's vote.
(vi) a person who continues to be an employee of the City or of a local board of the City;
(vii) a person who remains a judge of any court;
(viii) a person who remains a Member of Provincial Parliament, a Member of Parliament or a Senator;
(ix) a Crown employee who is a Deputy Minister or who is in a position or classification designated by regulation.
Consequently, there are no grounds by which a person would be prohibited from running for municipal office because of
being charged or convicted of a criminal offence including municipal corruption unless the conviction relates to
influencing voters within the time-frame referenced above, that person was still incarcerated or was otherwise prohibited
based on the grounds set out above.
Conclusions:
If Council were to request a person appointed to fill a Council vacancy to indicate in writing that they will not run for
election in the next election, this request would not be legally enforceable. If Council adopts a policy on when to fill future
vacancies on City Council by appointment or through a by-election, the policy would not be legally binding on City
Council, who would continue to consider these matters as they arise, but it would act as a guideline. Section 37 of the
Municipal Act and section 17 of the Municipal Elections Act, 1996 set out the grounds that could disqualify a person from
running for municipal office. These grounds do not make a person ineligible from becoming a City Councillor because of
being charged or convicted of a criminal offence including municipal corruption, other than offences related to influencing
voters.
Contact:
Mary Ellen Bench
Director, Municipal Law
Phone: 392-7245
Fax: 392-1017
________
The Administration Committee reports, for the information of Council, having also had before it a communication
(December 9, 1999) from the City Clerk, advising that the Administration Committee at its special meeting held on
December 8, 1999, had before it the following reports:
(i) (October 21, 1999) from the City Clerk, responding to a request from Council for staff to develop a policy on the
methods to fill future vacancies on City Council; and recommending that:
(1) any vacancy in the office of the Mayor or a Councillor declared by Council prior to July 31 in the year prior to an
election year be filled through the conduct of a by-election;
(2) any vacancy in the office of the Mayor or a Councillor declared by Council after July 31 in the year prior to an election
year be filled through an appointment; and
(3) the recommended procedures for filling a vacancy through an appointment, as outlined in Appendix AA@ be adopted;
(ii) (November 17, 1999) from the City Clerk, responding to a request from the Administration Committee to report on the
practices by other large Canadian cities in filling vacancies on municipal council; advising that with the exception of the
City of London and the City of Yellowknife, which have a written policy for the filling of vacancies, all other
municipalities surveyed follow the provisions of their applicable Acts; that generally, these Acts provide for all vacancies to
be filled through a by-election except when the vacancy occurs within a defined time frame before the next general election
(usually either six or twelve months); that Ontario's Municipal Act appears to be unique in giving a council total discretion
in filling a vacancy through either the conduct of a by-election or an appointment; and recommending that this report be
received for information; and
(ii) (November 17, 1999) from the City Solicitor, responding to the Committee's request for a report on issues concerning
the appointment of persons to fill a Council vacancy, also addressing the eligibility of persons to hold the office of City
Councillor who have been charged or convicted of a criminal offence, including municipal corruption; and recommending
that this report be received for information.; and
that the Administration Committee deferred consideration of the aforementioned reports until its meeting scheduled to be
held on January 11, 2000; and tabled the following motions for consideration at the aforementioned meeting of the
Committee:
Moved by Councillor Adams on behalf of Councillor Nunziata:
"That the Province of Ontario be requested to amend the Municipal Elections Act to disallow any person from seeking
Municipal office who has been convicted of a crime, arising from his/her conduct as an elected official.
Moved by Councillor Shiner (Non member of the Committee):
"That the Committee request the Province of Ontario to amend the legislation:
(i) to provide that only one member of Council represent citizens in Ward 6 North York Humber; and
(ii) to reduce the size of Toronto City Council to 56 Members plus one Mayor."
Moved by Councillor Miller:
"That the Committee recommend to Council the adoption of the report subject to amending Recommendation Nos. (1) and
(2) by deleting the words "July 31 in the year prior to an election year" and inserting in lieu thereof the words "January 1st
in an election year."
Councillor Frances Nunziata, York - Humber, appeared before the Administration Committee in connection with the
foregoing matter.
