Ward 14 Councillor Terry Whitehead has not attended a City Council meeting since December 16, 2020, a period exceeding 90 days as of this writing.
City Council has not granted him leave by resolution.
Section 259(c) of the Ontario Municipal Act states: “The office of a member of council of a municipality becomes vacant if the member is absent from the meetings of council for three successive months without being authorized to do so by a resolution of council.”
The question of whether his seat remains occupied depends on how one interprets “three successive months”, a phrase that has generated three distinct legal interpretations across more than 140 years of municipal governance.
Based on applicable case law and recent legal opinions, the answer is likely no, his seat is not yet vacant. But the margin is narrow, and the law remains unsettled.
What Does “Three Successive Months” Mean?
Three possible interpretations have emerged in court cases and legal memoranda:
- 89 to 92 days from the last attended council meeting;
- 89 to 92 days from the date of the first missed council meeting; and
- Three “full” calendar months from the first day of a new month following the last attended council meeting.
1880 Court Ruling
In the 1880 case Mearns v. The Corporation of the Town of Petrolia, the Court of Chancery of Ontario ruled on the question of seat vacancy under the predecessor laws to today’s Municipal Act.
Councillor Mearns attended an April 5th meeting and missed the May 31 meeting. At a July 7th meeting, the rest of Petrolia’s Council declared his seat vacant. [The 1880 ruling hints at much animousity between the councillors]
The court ruled:
“They did not attend that of the 31st of May; but there was no intermediate meeting that they ought to have attended but did not attend. It would be absurd to say that they absented themselves from meetings when there were no meetings at which to be present.”
The Court of Chancery determined that the three months should be calculated from May 31st, the date of the first missed meeting.
2017’s Gammie Case
In 2017, Ontario’s Superior Court declined to issue a binding interpretation of Section 259(1)(c), but the case provided instructive guidance.
Town of South Bruce Peninsula Councillor Craig Gammie was prohibited from attending Council meetings due to bail conditions after he was charged with assault against the Deputy Mayor.
As the three-month deadline approached, Gammie applied to the Superior Court for a variation of his bail conditions. He requested permission to attend a council meeting, be recorded as present for roll call, and immediately leave, thereby avoiding automatic removal from office.
The judge granted permission for Gammie to attend a meeting solely for roll call on a date before any of the three interpretations’ deadlines would trigger. (Gammie had to arrange a police escort at his own expense.)
Recent Legal Opinion in Kincardine
A councillor in Kincardine nearly reached the three-month absence threshold in 2021.
During their March 8, 2021 meeting, Kincardine Council – sitting as Committee of the Whole – discussed how to grant leave for one of their colleagues who was seriously ill.
In a legal opinion written for Kincardine Municipal Council, lawyer Steven J. O’Melia of Miller Thomson LLP addresses the ambiguity:
“The question of what constitutes ‘three successive months’ has been considered by courts and can be open to interpretation. One argument would be that the period runs for three months from the date of the first-missed council meeting (i.e. the same numbered date in the calendar month which is three months after the month of meeting missed). A second interpretation is that ‘three successive months’ means whole months, and that an attendance at any meeting in a particular month means that the first month to form part of the calculation does not start until the next month in the calendar.”
O’Melia’s opinion continues:
“If this issue was to be considered by a court, the judge would likely lean towards an outcome that would preserve a councillor’s seat. That is, if there were dual interpretations that could be given, the interpretation that would be more protective of a councillor’s seat would likely be given preference. The reason for this is that councillors are democratically elected by a majority vote of their constituents, and a court would not want to find that a seat had been vacated unless the facts fell clearly and inarguably within the wording of the Act.”
Whitehead’s Absence Exceeds 90 Days
This analysis returns to Hamilton, where no leave has been granted and Councillor Whitehead has been absent from Council for more than 90 days.
The Municipal Act provision intends to ensure municipal councillors attend meetings or have obtained leave if they cannot attend. The attendance requirement is minimal; councils recognize that even logging in for roll call satisfies the requirement.
Whitehead has not logged into any Council meetings since December 16, 2020.
He logged into one sub-committee in January 2021. However, sub-committees and committees are not the same as a council meeting under the Municipal Act. Only full council meetings satisfy the attendance requirement.
The next Hamilton City Council meeting is scheduled for March 31st. Council could have granted leave at that time if Whitehead did not attend.
As O’Melia’s opinion noted, the Superior Court will not remove a councillor “unless the facts fell clearly and inarguably within the wording of the Act.”