What happens when things change, Part 2

October 12, 2011


On September 13, I considered the question – what happens when things change?

I wrote: “In 1967, Guelph, Wellington and Dufferin freely entered into an agreement to amalgamate the Guelph Public Health Unit with that of the Wellington-Dufferin Health Unit. A newly-constituted Board of Health was established to provide the governance for the delivery of public health programs in the three municipalities.

There are risks with any partnership. What if it doesn’t work out despite best intentions or because circumstances simply change? The decision makers clearly contemplated these questions and provided an “escape” clause which enshrined the right of any of the three municipal partners to withdraw from the agreement with proper notice. Guelph has recently declared its interest in invoking this clause. The Board of Health and Province have expressed their opposition, more or less. It remains to be seen whether the politicians almost 45 years ago were wrong in believing they had protected the rights of future Councils or whether the right to end the agreement has subsequently been revoked by the Province”.

This was in the hands of a judge to determine and he has concluded that changes to provincial legislation in 1997 and 2001 removed the right of any of the three municipalities to withdraw from the agreement:

[76] The Municipal Act, 2001, and the HPPA (Health Protection and Promotion Act) have a combined effect of shifting the locus of decision-making regarding public health from local municipalities to the semi-autonomous boards of health. The significance of this shift should not be overlooked.

The right of the Board of Health to place debt on the City of Guelph was also in the hands of a judge to determine and he has concluded they can:

[105]…I find that the City does not possess the power either to withdraw unilaterally from the Board or to veto the Board’s decision, even when they have the effect of imposing significant financial obligation on the City.

So now we know, the governance model is broken. We can either roll over, and live in comfortable subordination, or step up with assertive maturity to bring about the necessary change that will strengthen our local democracy.

The judge had a lot more to say – about the Board and the Province. For instance:

[109] The City has submitted that the Board must justify its expenditures to the Councils of the obligated municipalities. I agree that the Board must be transparent in providing the necessary information to the municipalities to enable them to assess the reasonableness of the expenses and, if necessary, to challenge the Board’s decision in the courts.

Council will need to consider whether to pursue this option particularly in light of the fact that their space needs have grown from 17,500 to 60,000 square feet in a short span of time.

So what does the judge mean that the “significance of this shift should not be overlooked” in section [76]. The judge goes on to note:

[77] The shift from decision-making by directly elected representatives on city councils to boards made up of their delegates, especially, as in the present case, where the delegates of two municipalities can out-number those of another, has the potential of diminishing the public’s engagement in self-government and undermining the quality of public decision-making.

[78] Municipalities are local democracies. City councillors are elected by the people, and the court should exercise caution before substituting its views for those of democratically elected representatives. The courts have recognized the increasingly important role played by local governments, and apply a liberal interpretation of their powers and authority.

[79]The guidelines which the Ministry of Health and Long Term Care have issued for boards of health to follow wisely provide for consultation and collaboration as a means of preventing the disempowerment of municipal constituents. The effectiveness of this safeguard depends on the quality of ministerial supervision and the remedy of judicial review.

What is the remedy for the City in the event of Board non-compliance with these guidelines? The judge notes in section [85] of his ruling that the legislation provides an assessment process and requires the Minister to appoint an assessor. Absolutely, the City will continue to pursue the appointment of an assessor with the support of this ruling.

As I noted on September 13: “Not in the hands of the judge to determine is what governance structure can best deliver public health programs in Guelph, Wellington and Dufferin. One of the partners in this story (Guelph) is not happy – not convinced that the current governance structure is working for its community. That should be a concern not just to Guelph but the Medical Officer of Health, the Board of Health, Dufferin, Wellington and the Province. Why isn’t it?

In his conclusion, the judge notes that “the City’s loss of confidence in the process has caused it to seek to assert its own autonomy…”. Yep.

Read the judge’s decision here.

About Karen Farbridge

An unwavering change maker seeking a just, democratic and sustainable world.

View all posts by Karen Farbridge

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