When (and How) Can You Restrict Access to Staff by Elected Representatives?     

By
James Yardley
Barrister & Solicitor
jgy@murdymcallister.com
April 9, 2009

        Cautionary advice about imposing limits on the manner and extent by which elected representatives can interact with staff is found in the recent case Barnett v. Cariboo Regional District 2009 BCSC 471.   The Regional District Board resolved at a closed meeting that Mr. Barnett, who was a member of the Board, not communicate with staff except in written form via the Chief Administrative Officer.  Mr. Barnett was present at the meeting.  The Board had available to it at the meeting a report that was prepared by the CAO at the request of the Chair concerning apparent difficulties staff had when dealing with Mr. Barnett.  However, Mr. Barnett was not permitted to take a copy of the report with him from the meeting.

        Mr. Barnett challenged the legality of the resolution.  Mr. Justice McKinnon held that the Board had the jurisdiction to govern matters related to the conduct of its members, including interactions with staff, and that the resolution was not invalidated by breaches of the Board’s procedure bylaw.  However, he held that the process by which the resolution was introduced and passed failed to meet procedural fairness requirements owed to Mr. Barnett.  These included the failure to give Mr. Barnett any notice in advance that the resolution would be considered, or to put the concerns in specific enough terms for him to permit “a reasoned and structured response”.  The Court held that refusing to provide specifics about complaints in order to protect staff from harassment did not trump Mr. Barnett’s right to a fair hearing.  The Court also granted Mr. Barnett “special costs” (essentially, full recovery of his legal fees) on the basis that the lack of a fair hearing deserved “chastisement”.               

        The decision in the Barnett case highlights the importance of being aware of the wide range of circumstances to which common law rules of procedural fairness may apply, and of then applying those rules.