Village of Anmore v. Piamonte Date:, 2014 BCPC 349

Citation: Village of Anmore v. Piamonte Date: 20141113 2014 BCPC 0349 File No: C15016 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LAURIE DARCUS, CHIEF ELECTION OFFICER FOR THE VILLAGE OF ANMORE CLAIMANT AND: MARIO PIAMONTE DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOSSA Counsel for the Claimant: A. Price Counsel for the Defendant: L. Barron

Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 17, 2014 Date of Judgment: November 13, 2014 [ 1 ] THE COURT: This is an application brought under s. 73.2 of the Local Government Act , R.S.B.C. 1996, c. 323 ("the Act ") by the Chief Election Officer for the Village of Anmore challenging the nomination of Mario Piamonte as a candidate in the 2014 municipal election. [ 2 ] The applicant seeks an order: 1. Either declaring that Mario Piamonte is no longer a candidate; or 2.

Confirming that Mario Piamonte is a candidate. [ 3 ] The applicant relies on the affidavit of Laurie Darcus, Chief Election Officer of Anmore. [ 4 ] The defendant, Mario Piamonte, opposes the application and seeks an order confirming that he is a candidate. [ 5 ]

Section 73.2 of the Act provides very stringent time limits for the period commencing when the court must hear the challenge to determine the matter and issue the applicable order. [ 6 ] I heard the matter on October 17, 2014 and made an order confirming that Mario Piamonte is a candidate. I said that I would provide reasons at a later date. Background [ 7 ] Mario Piamonte is a volunteer firefighter with the Sasamat Volunteer Fire Department and receives monetary compensation for his position on an on-call basis.

The Fire Department is established by and operates under the authority of the Greater Vancouver Regional District ("GVRD"), Sasamat Volunteer Fire Department Administration and Regulations, By-law No. 1204/2014 through a board of seven trustees appointed by three members of the Village of Anmore, three members of the Village of Belcarra, and one member of the GVRD. [ 8 ] The Greater Vancouver Regional District provides funding for the capital and operating expenses of the Fire Department. [ 9 ] Mario Piamonte did not provide written notice to the Fire Department that he was consenting to the nomination as required by s. 67(4) of the Local Government Act , R.S.B.C. 1996, c. 275 . [ 10 ] As of October 14, 2014, Mario Piamonte had not taken a leave of absence from his position with the Fire Department from the first day of the nomination period, which began on September 30, 2014 as required by s. 67(5) of the Local Government Act . [ 11 ] Mario Piamonte was elected to the Municipal Council in Anmore in the November 2008 election for a period of three years.

The issue of his being a volunteer firefighter was never raised. [ 12 ] In November 2011, the defendant ran for mayor and lost. [ 13 ] The Chief Election Officer at the time Karen N.

Cobb, provided a letter dated October 7th, 2011 stating that firefighters from the Sasamat Volunteer Fire Department were not considered employees of Metro Vancouver and are therefore eligible to seek election as a member of Council on the basis that the Sasamat Volunteer Fire Department is a society that is separate from the Village of Anmore. [ 14 ] The defendant believed that the law for the current election was the same as in November 2011 and did not take a leave of absence from the Fire Department before submitting his nomination papers.

The statute and regulation regarding volunteer firefighters is unchanged from November 2011. [ 15 ] The present Chief Election Officer has determined that the defendant did not qualify for an exemption under the regulation and was challenging his eligibility. [ 16 ] As soon as the defendant was aware that there was an issue with his eligibility, he sought a leave of absence from the Fire Department. His nomination was filed on October 10th, 2014.

He was served on October 14th, 2014 and filed his leave of absence on October 15th, 2014, five days after his nomination was filed. [ 17 ] The defendant submits that had he known of the change in the Chief Election Officer's position he would have taken a leave of absence before submitting his nomination papers. Issues [ 18 ] The issues before me are: 1. Is the defendant an employee as a member of the Fire Department for the purpose of s. 67 of the Local Government Act , and 2.

Is it open to the Court to find an inadvertent technical breach of procedural irregularity where the defendant was five days late in giving notice in writing to the Sasamat Volunteer Fire Department of his intention to consent to nomination, pursuant to s. 67(4) of the

Local Government Act, and in taking a leave of absence from his volunteer firefighter position, pursuant to s. 67(5) of the LocalGovernment Act. Analysis [19] The applicant submits that members of the Fire Department are employees of the GVRD, and submits the defendant did notsatisfy the requirements of ss. 67(4) and 67(5) of the Act. Further, the applicant submits that his failure to do so does not appear to be atechnical breach. [20] The defendant submits that he should be eligible to run in this election without taking a leave of absence similar to theinterpretation taken in November 2011.

In the alternative, he submits that since he has taken a leave of absence, the Court should findhim eligible to run on the basis that there was an officially induced error which led him to act in the manner that he did, namely, that hewas not aware that the present Electoral Officer would interpret the law differently. [21] Further, he submits that equitable estoppel prevents the challenge to his nomination and he relies on the information provided tohim in October 2011 by the Chief Electoral Officer at the time. [22] Lastly, he submits that the Court should find that his failure to take a leave of absence before he filed his nomination paperswas a technical breach and that he did so as soon as he became aware of the challenge to his eligibility. [23] The Fire Department is established by the GVRD and operates under the authority of the GVRD Sasamat Volunteer FireDepartment Administration and Regulations By-law No. 1204.

The GVRD Regulation provides that the defendant as a firefighter isprotected from liability under the GVRD Indemnification Authorization By-law No 983/2002 and is a municipal public officer under s.287 of the Local Government Act. [24] The GVRD Regulation provides for a board of trustees to carry out administrative duties for the Fire Department. The Trusteesare made up of appointees from Anmore, Belcarra, and the GVRD, but control ultimately lies with the GVRD. The GVRD pays the FireDepartment's budget both for the capital and operating expenses of the Fire Department. [25] In Baziuk v.

Shelley, 2012 BCSC 295 the Court held that a volunteer firefighter was an employee of the Municipality whichhad by regulation created the Fire Department. As such, the employee was disqualified to hold office. [26] In that case, the Municipality took the position that the firefighter was not an employee but the Court disagreed. Further, theCourt found that volunteer firefighters that receive monetary compensation on an on-call basis are employees and are not protected underthe Volunteer Eligibility for Office Regulation, B.C. Reg. 165/2011. [27] The Court found that even though Mr.

Shelley was said to have provided volunteer services, he received monetarycompensation from the Municipality and as a result, he could not find himself within the exception as set out in the Regulation. Hisrequest after the fact that his remuneration be directed to a charity cannot repair the fact that he was disqualified from holding office. [28] In Baziuk v. Shelley, supra, there was no board of trustees to provide administrative duties whereas in this case the GVRDRegulation provides for trustees to carry out administrative duties. [29] In this case, applying the decision in Baziuk v.

Shelley, supra, I find that the defendant is an employee for the purposes of s. 67of the Local Government Act and find that the defendant does not fall within the exemption provided for under the Volunteer Eligibilityfor Office Regulation since it requires that the volunteer not receive monetary compensation from a municipality or regional district. [30] The Sasamat Volunteer Fire Department's website states that it obtains its funding and support services from the GVRD as setout in the affidavit of Laurie Darcus. [31] With respect to the doctrine of officially induced error, I find that doctrine is only applicable as a defence within a criminal orregulatory context and not as a defence to a limitation argument or in a civil case. [32] I do not think it can be said that the Local Government Act is regulatory legislation based on the

definitions given in R. v.Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 at para. 25. Estoppel cannot be raised if the effect is to estopa public body from the performance of their statutory duty or from unfettered exercise of its statutory discretion. Estoppel cannot beraised to release a person from an obligation to obey a statute imposing a positive duty. The duty of each party is to obey the law. Thedoctrine of estoppel cannot interfere with the proper carrying out of the provisions of Parliament. [33] In Long & Miller v.

Jackson David Compton, et al., 3rd November 2011, North Vancouver, 11-22666 (B.C.P.C.), Baird EllanP.C.J. found that a technical breach of procedure irregularity did not invalidate a nomination. She stated at para. 14:

(1) That respect for the electoral process demands that technical issues not defeat a qualified candidate nominated by competentnominators; and

(2) Even in a case where there was an established breach of election provisions in the Local Government Act, the Court held that it wasnot so egregious as to warrant a declaration of invalidity. [34] In that case, the technical breaches were in the nature of incorrectly completing nomination forms which are different from thebreach in the instant case. However, the decision in Long & Miller, supra, does not necessarily preclude the finding of other types oftechnical breaches. [35] In Cultus Lake Park Board v. Childs, 31st October 2008, Chilliwack C6621, Provincial Court, the Deputy Chief Elections

Officer for the Cultus Lake Park Board asked the Court to determine whether the respondent was qualified to be nominated for Commissioner of the Cultus Lake Park Board. [ 36 ] In that case, the respondent was a member of the Park Board's Volunteer Fire Department when he filed his nomination papers and at the time of filing he had not notified the Park Board that he intended to consent to nomination and had not requested a leave of absence from his position as a volunteer fire fighter as required by the Local Government Act . [ 37 ] Chief Judge Crabtree stated that there was no evidence before him that this matter or question of whether Mr.

Childs was or was not an employee of the Park Board was raised or discussed or that he did receive advice that was erroneous.

On the evidence before him, it had not been established that there was an error induced by the actions of the officer or that the officer acted in bad faith. [ 38 ] I find that the Childs , supra , decision can be distinguished from the case at bar in that in this case the defendant received prior advice from the Chief Elections Officer for the Village of Anmore that volunteer fire fighters for the Sasamat Volunteer Fire Department are not considered employees of Metro Vancouver and therefore are eligible to seek election as a member of Council. [ 39 ] In this case, the defendant was five days late in filing for his leave of absence.

He did so as soon as he was served with the challenge of his nomination. He had relied on erroneous advice from the prior Chief Election Officer of the Village of Anmore. [ 40 ] Applying the reasoning in Long & Miller , supra , I find that the inadvertent technical breach or procedural irregularity did not invalidate the defendant's candidacy. Accordingly, I find that Mario Piamonte is a candidate in the 2014 municipal election. (ORAL REASONS FOR JUDGMENT CONCLUDED)