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Real lawyers (as opposed to armchair ones) weigh in on HootSuite/Robertson conflict lawsuit

February 20th, 2014 · 24 Comments

This is what people who’ve actually argued these kinds of cases in court have to say about it the whole issue of conflict.

Those interested in the various law cases referred to in this story can find them, or references to them, here, here (do a search with Control F for King) and here.

That’s because courts, all the way up to the Supreme Court of Canada, say that those elected council members have a right to have opinions, to express public support for local businesses and projects, and even to accept donations from groups they later make decisions about.

The lawsuit, filed Friday at the B.C. Supreme Court by members of a new civic political party called the Cedar Party, claims that Mr. Robertson should not have voted in a closed meeting to lease a city property to HootSuite because he had received benefits from them and was biased.

But lawyers who specialize in municipal law say the direct financial benefit appears to be very unclear and that courts have said there needs to be strong evidence of bias or benefit for the politician to establish that there’s been conflict.

“It’s a very high test,” said Daniel Bennett, a lawyer with Bull, Housser & Tupper who has acted for municipalities in various lawsuits. “Councillors are allowed to be supportive of things they think are good. The fact that [the mayor] is supportive of HootSuite – that’s a real long stretch. The fact that he’s very supportive, that’s what elected officials are supposed to do.”

Barry Williamson, a Kelowna lawyer who has represented northern B.C. cities, also said that the courts have ruled that no one expects mayors to be “empty vessels” with no opinions. And even when a city councillor votes in favour of something benefiting a campaign contributor, that’s not enough to persuade a court that a politician is biased, as a case in Nanaimo established a decade ago.

HootSuite, which had been operating out of offices near the city’s Downtown Eastside, got a lease and option to purchase a former police building near Main and 8th Avenue in the fall of 2012.

The details of the lease were only made public after Glen Chernen, the main spokesman for the Cedar Party, filed a freedom-of-information request. It appeared from what he obtained that HootSuite is leasing the building at market rates for the area, although four other offers had been turned down earlier in the year in a more open bidding process for the building.

Mr. Chernen’s suit says that the second round of the leasing process wasn’t transparent and that Mr. Robertson’s personal relationship with HootSuite founder Ryan Holmes could have biased him in approving the deal.

Specifically, the lawsuit says the mayor got several benefits from the company and expressed public support, indicating his bias. Among those benefits, the suit alleges: he held a town-hall-style public meeting through Twitter at the company’s offices during the 2011 election campaign; he received a promotional kit from them with a T-shirt; he had been to a party at HootSuite offices; and he had tweeted a supportive message about the company.

Mr. Robertson has so far dismissed the suit as bizarre.

“As mayor, I’m very proud of the strong local tech companies that are investing in Vancouver, and city hall will continue to support the new jobs they are creating in our city’s growing economy,” he said in a written statement.

The most famous case in B.C. that spelled out the limits of conflict issues was the Save Richmond Farmland Society lawsuit against Richmond, which argued that a local alderman who had expressed strong support for developing the Terra Nova lands shouldn’t have been allowed to vote. The Supreme Court of Canada said in 1990 that council members aren’t expected to be neutral like judges and noted that councillors are often elected on the basis of their strongly stated positions.

One recent case where the B.C. Court of Appeal did find evidence of a conflict was one where two Islands Trust directors voted in favour of a grant for a local environmental group when they also sat on the board of that group.

Categories: Uncategorized

  • Higgins

    Ha, ha, ha…
    “Lawsuit against Robertson will need to clear high bar to succeed”
    Gee, what a surprise.
    Who would know more about manipulating the law than… the lawyers.
    I’ve rarely seen a decision favoring the simple citizen vs the big shot crooked politician/ bureaucrat.
    They have their lying machine oiled to perfection.
    Just curious. Who’s money are Robertson & gang going to spend defending all this?
    The whole Hootsuite deal stinks to heaven, but with so many legal loopholes… phew.

  • Waltyss

    As others have recognised and this article amply confirms, this is simply a publicity stunt by the flaky Chernen that has zero chance of success.
    ( see Pete McMartin’s typically insightful comment a few days ago in the Vancouver Sun).
    Will that stop the usual Vision haters from telling us that this lawsuit is proof positive that the Mayor was in a conflict? Well, no. We are in pre-election silly season; the next 10 months will reveal many more of these silly stunts and the Vision haters will cheer each of them on.

  • Waltyss

    And true to form, Higgins appears. Hootsuite gave the Mayor a t-shirt. Oh, the corruption of it! T-shirts No; but according to the NPA, chocolates, Yes. Or are they corrupt, too?
    You are right, however, Higgins, the law does not cater to the simple(ton) citizen. Thank God!

  • And what happens if you get the gift chocolate on your gift t-shirt? Silly season has official begun although I’m not sure if it ever ended.

  • gman

    “Vision haters”…no bias in that comment eh folks.I think a better description would be “Vancouver lovers”

  • Both lawyers you have quoted are tops. They generally act for municipalities. They are correct in saying, alas, that there are all sorts of presumptions in favour of the government. Therefore, Chernan’s case may be a long shot.

    The law is made up of cases that were once long shots. The common law is not static. Judicial opinions may reflect changing social concerns and values. The 2013 Schlenker v. Torgrimson case they cited ,which reversed a decision of the Supreme Court, reflects such a change in favour of taxpayers. Another such case (not relating to a conflict of interest) upheld the unusual principle that a councilor who lies to the media during an election, can be removed from office. In that case the Councilor sent out a campaign email. The contents were true but he falsely denied being the author. (Todd v Coleridge).

    We lawyers regularly lose cases we should have won, and win cases we should have lost so in the end we can claim justice is done. I have not read the evidence in Chernan’s case. I doubt that anyone else as either, but it is a little early to count him out.

    Finally, I would note that one does not have to be a lawyer to make a moral judgement about what was done and whether it represents the best or the worst of what we should expect of politicians.

  • Kenji

    Mayor campaigns on platform that includes strategy to woo digital business to downtown.

    +

    Woos digital business to downtown

    =

    Citizens in shock, file lawsuits?

  • Jeff Leigh

    Kenji

    That was pretty much my reaction too.

  • spartikus

    Politics 101: Heads, you lose. Tails, we win.

  • waltyss

    Kenji, you captured it perfectly.
    While Jonathan Baker who is a lawyer but a very partisan NPA one says that based on the law “Chernan’s case may be a long shot”. Really?? Jonathan, take off your NPA blinkers and say what you know: this lawsuit has no merit whatsoever and will disappear at the very latest next November.
    Kenji has captured perfectly what has happened in this case. So, tell us, is the NPA position that if you campaign for something and then support it when you get into office, you are biased and must recuse yourself from any vote or be thrown out of office.
    In your last paragraph, you pretty well concede that this lawsuit is devoid of merit. However, you then try to insert a “moral” element. So again, is it your position that if you run in support of something and then support it when elected, that you morally corrupt and should resign? I will wait for your answer with bated breath.
    And while we on the subject of moral corruption, you are associated with a political party (unless this week you have switched back to NPA lite) that is the vanity project of one very rich developer. Would it be morally corrupt if you nor any other NPA councillor did not recuse themselves from any vote on anything with which that developer is associated. Just asking?

  • teririch

    @Waltyss: #10:

    You are actually going to play the developer card?

    Really?

    Wow.

  • teririch

    Sorry further to my #11 –

    Because there was absolutely nothing wrong with the ‘moral’ optics of this either :

    Vancouver Province Feb 11, 2014:

    Reconsidering a plan to send a Vision councillor to the Sochi Olympics with funds provided by real estate moguls, Vancouver city council voted Wednesday to let taxpayers foot the bill.

    In a unanimous vote, council green-lighted a “modest” budget for Coun. Tim Stevenson’s trip to Sochi as deputy mayor, and his plans to lobby the IOC on gay rights.

    Last Wednesday, in a high profile news conference, Stevenson, Mayor Gregor Robertson and real-estate marketer Bob Rennie announced a $100,000 trip-plan to send Stevenson, who is gay, and two others to Russia on behalf of the city.

    The plan, Stevenson said last week, was to avoid taxpayer expense through donations from Rennie and developer Peter Wall. Stevenson said he called Rennie directly, and both Rennie (who is popularly known as Vancouver’s ‘Condo King’) and Wall pledged $25,000 each towards trip fees, with the rest expected to be raised privately as well.

    Following the announcement, The Province reported that SFU political expert Patrick Smith saw the trip as a potential conflict of interest concern, if Stevenson later voted on development proposals involving his private benefactors. Also, The Province reported, Rennie’s company has earned $7.8-million as the chosen marketer of Vancouver’s troubled Olympic Village project.

    Last Thursday — pressed on whether the plan was appropriate or might make city decisions involving Rennie and Wall difficult — Robertson ridiculed media questions.

    “There is no conflict of interest here, and I think that is just trying to stir up trouble here,” Robertson said. “As to the sponsorship side, I think it is ridiculous to presume or predict this has any bearing on city business. That is ridiculous.”

    But this week, council approved an amended motion put forward by Green Coun. Adriane Carr which would approve a “modest” budget for Stevenson’s trip, and allot the private money raised by Stevenson to his two non-council trip companions……

    And so on….

  • teririch
  • waltyss

    teririch @11, as usual, you miss the point.
    terrace @12, Stevenson was wrong to accept or plan to accept sponsorship for the trip from Rennie. The Mayor’s reaction was wrong. Unlike you, however, when shown to be wrong, they reversed their decision.
    teririch @13 I agree with the Integrity BC ED completely. The City was wrong and without excuse not to release the figures on the HootSuite lease. The COV’s secretiveness raises suspicions. However that is not to say that anything in Chernen’s allegations if proven would constitute a conflict of interest.
    I also agree that “The courts should not become a strategic arm of a political campaign”. That is clearly what Chernen is doing.

  • F.H.Leghorn

    Not surprising that waltroll feels that “the courts should not become a strategic arm of a political campaign”. As usual he’s out to lunch. The courts have always been the forum in which our rights and freedoms have been guaranteed, often when under attack by governments (with nothing but the public interest in mind).
    One not need not look very far to find elected politicians who are eager to strip you of your rights for one reason or another. In that event you have a choice: appear before a public hearing and complain; or hire a lawyer and sue the bastards. Even someone as self-absorbed as waltroll must be aware of dozens, perhaps hundreds of examples.
    One notable example is the civil rights struggle in our remarkable neighbour to the south. State legislatures across the country kept enacting laws which discriminated on the basis of race, or gender, or religion. It was left to the courts to enforce the terms of the Constitution since the politicans were the source of the problem. The Civil Rights Act of 1968 (and Voting Rights Act of 1964) basically wrote into law a series of legal victories gained over the preceding decade. Probably Lyndon B. Johnson’s finest hour.
    The abolition of slavery (in the British Empire, at any rate) is another notable example.

  • spartikus

    You are absolutely right to remind us of the checks and balances between legislature, executive and judiciary that some many constitutions of free countries attempt to achieve.

    I’m just not sure that accepting a tote bag from Hootsuite is on the same scale as ensuring African-Americans have equal rights under the law.

  • Glaring gap in my historical knowledge, but were the civil rights gains achieved in America in the 60s and 70s precipitated by political candidates running for office?

    There is it seems to me, a big difference between a candidate bringing a lawsuit against an incumbent, and one arm of gov’t taking another to court, and/or NGOs and individuals fighting for their own rights/equality. Not sure the comparison Mr Leghorn presents actually holds if the central point of the statement ‘arm of a political campaign’ isn’t paralleled in the civil rights cases mentioned.

  • Paul Tolnai

    The question that needs to be asked when an action is taken to court is not, has this ever been successful before, but SHOULD this action be successful this time.

    I’ll also agree that the likelihood of the action succeeding is VERY low.

    However, one must question the wisdom of the Vision Vancouver run city hall in keeping so many details of this deal secret. It shouldn’t have taken years to release the contract. And Vision shouldn’t STILL be stone-walling any attempt to verify that the parties are living up to their contractual obligations.

    Way to go Gregor. Way to be the most open and honest government the city has ever seen.

    Did anyone really believe that?

  • Mira

    Just an accolade.
    Mr Mayor is stepping into the same shoes he’s wearing while he is vacationing on Cortes island. He seems to like to live on the waterfront but he doesn’t like having any or too many) neighbors and/ or traffic associated with it.
    He likes to advocate for clean/ quiet environment and most of his time he allocates on urging others (Tides/ Vancouver city) to pay for his nice cozy personal space.
    What else is new?

  • skippy

    @Tolani #18
    That is precisely the point. Vision arrogance and disregard for transparency has lead to multiple law suits. Here, the point may well be not the merits of what is in the pleadings but rather the response from Government, the openness of Gov’t in the process and what is uncovered in the discovery process. In the Hadden Park matter, a weak case at best, Vision essentially conceded and avoided full scrutiny of its decision making process. As this matter proceeds, Vision will be dragged into what was promised; transparency.

    To some fellow bloggers here. Cyberbullying, in my mind is a serious matter. Given most of us are anonymous, we do not know each other nor the mental health issues others may or may not have. Let keep it civil. A sharp wit is a product of a sharp mind…..some of the above comments .. well they speak for themselves.

  • Bill Lee

    “Meanwhile, back in town…”

    Charlie Smith editor of The Georgia Straight opines:
    Here’s why council can turn over former police station to a U.S. landlord without public input
    by Charlie Smith on Feb 20, 2014 at 6:35 pm http://www.straight.com/news/592066/heres-why-council-can-turn-over-former-police-station-us-landlord-without-public-input

    When the City of Vancouver takes the relatively minor step of adding a speed hump on a neighbourhood street, there’s a public process.

    In the past before speed humps have been approved, reports have gone to council.

    People have had an opportunity to speak the politicians on the matter. And the media could be present when a vote is held.

    The same is true of any $500 grant to an arts organization.

    But if the City of Vancouver wants to turn over a prized asset—such as the former Vancouver police station at Main and Hastings street—there’s a possibility that it can occur entirely in secret.

    That’s because under Section 165.2 of the Vancouver Charter, a part of a council meeting “may or must be be closed” to the public if it concerns “the acquisition, disposition or expropriation of land or improvements, if the Council considers that disclosure could reasonably be expected to harm the interests of the city”.

    Secrecy shrouds future of former cop shop

    Earlier this week, I wrote an article [ City of Vancouver rejects proposed social innovation hub at former police station site by Charlie Smith on Feb 19, 2014 at 11:00 am [ 1100 words ] IN PRINT this week and ONLINE straight.com/news/589246/city-vancouver-rejects-proposed-social-innovation-hub-former-police-station-site] suggesting that the City of Vancouver may be poised to strike a deal with a California-based landlord. It would enable the Redwood, Calif. company NestGSV to lease the former police station to { other ] high-tech companies.

    Nobody from the city or the Vancouver Economic Commission would comment on the future of the nearly 100,000-square-foot former cop shop.

    Former Vancouver East MLA Bob Williams described it this way

    MORE [ 600 words]

  • Ned

    IMHO
    It’s a nice fat conflict of interest.
    This is not about a few Tshirts and a bopx of chocolates.
    It’s about prime real estate deals gifted out to friends & political contributors. Just because is still on the apparent legal side (why ?) it doesn’t mean it does not need a second look. There is no smoke without fire.

  • Bill Lee

    HootSuite payments finally revealed by city hall

    Social media company paid $692,145.80 for rent, parking and property taxes in 2013
    by Bob Mackin / Vancouver Courier, February 28, 2014 02:58 PM
    http://www.vancourier.com/hootsuite-payments-finally-revealed-by-city-hall-1.871596

    [ PHOTO After three months of free rent, Hoostuite’s contract called for payments of $47,149.50 per month ($17 per square foot) for the first year, plus $4,615 per month for 71 parking stalls (at $65 each). Photo: Dan Toulgoet ]

    HootSuite received more from the City of Vancouver last year to renovate the city-owned building it occupies than it paid to use the building.

    Figures released by city hall show the social media company paid $692,145.80 for rent, parking and property taxes in 2013, the first of a five-year lease at 5 East Eighth Ave.

    On April 10, 2013, city hall paid $698,922 to HootSuite under the tenant improvement allowance clause of the lease contract, which was approved by city council behind closed doors on June 27, 2012.

    Various city hall departments also paid HootSuite $42,438.92 for use of the HootSuite Enterprise Package, subscriptions, and Twitter account management.

    City hall’s Freedom of Information office had refused to disclose monthly payments to and from HootSuite on five separate requests filed since last September. That changed when the Office of the Information and Privacy Commissioner for B.C. intervened in February.

    The city now shows it paid $39,458.68 for the HootSuite Enterprise Package from January to November, $423.63 in Library monthly charges and $804.10 for IT monthly charges. The mayor’s office spent $1,667.34 and councillors $85.17 on HootSuite subscriptions.

    The purchases from HootSuite fell under the $75,000 threshold for an open, public tendering process. Documents released by city hall, however, show that bureaucrats did not follow policy to research the prices of competing products.

    After three months of free rent, the Jan. 21-released contract called for payments of $47,149.50 per month ($17 per square foot) for the first year, plus $4,615 per month for 71 parking stalls (at $65 each). By year five, HootSuite is supposed to pay $61,017 per month in rent.

    The tenant improvement allowance was set at $20 per square foot for the 33,282-square-foot former Vancouver Police building. HootSuite’s contract includes two five-year lease extensions and an option to purchase the building for $9.3 million that expires on Dec. 31, 2015. The latest assessment shows the property is worth $10.191 million.

    If it exercised the purchase clause, HootSuite would have to repay a portion of the tenant improvement allowance.

    Cedar Party leader Glen Chernen launched a B.C. Supreme Court petition on Feb. 14 aimed at disqualifying Mayor Gregor Robertson from office for not declaring his HootSuite conflict of interest under the Vancouver Charter. Chernen claimed HootSuite got the city building lease without tender because it helped Robertson and his Vision Vancouver party win the 2011 election.

    Robertson’s defence statement has yet to be filed, but he did call the allegations “bizarre” and claimed city hall was helping HootSuite for economic development reasons.

    “This contract with HootSuite for their services is just another piece of proof that some of our elected officials think it is all right to give their friends and supporters special access and privileges to our city without any questions or consequences,” Chernen said.

    Neither the office of the mayor nor HootSuite responded for comment on Friday morning.

    bob@bobmackin.ca | twitter.com/bobmackin

  • Bill Lee

    HootSuite payments finally revealed by city hall

    Social media company paid $692,145.80 for rent, parking and property taxes in 2013
    by Bob Mackin / Vancouver Courier, February 28, 2014 02:58 PM
    http://www.vancourier.com/hootsuite-payments-finally-revealed-by-city-hall-1.871596

    [ PHOTO After three months of free rent, Hoostuite’s contract called for payments of $47,149.50 per month ($17 per square foot) for the first year, plus $4,615 per month for 71 parking stalls (at $65 each). Photo: Dan Toulgoet ]

    HootSuite received more from the City of Vancouver last year to renovate the city-owned building it occupies than it paid to use the building.

    Figures released by city hall show the social media company paid $692,145.80 for rent, parking and property taxes in 2013, the first of a five-year lease at 5 East Eighth Ave.

    On April 10, 2013, city hall paid $698,922 to HootSuite under the tenant improvement allowance clause of the lease contract, which was approved by city council behind closed doors on June 27, 2012.

    Various city hall departments also paid HootSuite $42,438.92 for use of the HootSuite Enterprise Package, subscriptions, and Twitter account management.

    City hall’s Freedom of Information office had refused to disclose monthly payments to and from HootSuite on five separate requests filed since last September. That changed when the Office of the Information and Privacy Commissioner for B.C. intervened in February.

    The city now shows it paid $39,458.68 for the HootSuite Enterprise Package from January to November, $423.63 in Library monthly charges and $804.10 for IT monthly charges. The mayor’s office spent $1,667.34 and councillors $85.17 on HootSuite subscriptions.

    The purchases from HootSuite fell under the $75,000 threshold for an open, public tendering process. Documents released by city hall, however, show that bureaucrats did not follow policy to research the prices of competing products.

    After three months of free rent, the Jan. 21-released contract called for payments of $47,149.50 per month ($17 per square foot) for the first year, plus $4,615 per month for 71 parking stalls (at $65 each). By year five, HootSuite is supposed to pay $61,017 per month in rent.

    The tenant improvement allowance was set at $20 per square foot for the 33,282-square-foot former Vancouver Police building. HootSuite’s contract includes two five-year lease extensions and an option to purchase the building for $9.3 million that expires on Dec. 31, 2015. The latest assessment shows the property is worth $10.191 million.

    If it exercised the purchase clause, HootSuite would have to repay a portion of the tenant improvement allowance.

    Cedar Party leader Glen Chernen launched a B.C. Supreme Court petition on Feb. 14 aimed at disqualifying Mayor Gregor Robertson from office for not declaring his HootSuite conflict of interest under the Vancouver Charter. Chernen claimed HootSuite got the city building lease without tender because it helped Robertson and his Vision Vancouver party win the 2011 election.

    Robertson’s defence statement has yet to be filed, but he did call the allegations “bizarre” and claimed city hall was helping HootSuite for economic development reasons.

    “This contract with HootSuite for their services is just another piece of proof that some of our elected officials think it is all right to give their friends and supporters special access and privileges to our city without any questions or consequences,” Chernen said.

    Neither the office of the mayor nor HootSuite responded for comment on Friday morning.