The Superior Court decision in Yorke et al. v. Harris considers the time-bar in s. 8(2) of the Municipal Conflict of Interest Act. Technically, this isn’t a limitation period, but in case you’ve come here looking for one of the very few s. 8(2) decisions, this is the analysis:
[28] An application may only be made within six weeks after the applicant became aware of the alleged contravention: see s. 8(2) of the MCIA. The strict time limit in the Act is meant to protect elected officials and ensure that applications are brought on a timely basis: see Hervey v. Morris, 2013 ONSC 956, 9 M.P.L.R. (5th) 96.
[29] In this case, the application was brought more than six weeks after the impugned conduct. Mr. Lewis, corporate counsel for the Carpenters Union, provided an affidavit in support of the application. He deposed that he found out about the Resolution on January 17 or 18, 2019. However, there is no evidence of when he became aware of the fact that Councillor Harris’ wife worked for CLAC. Absent that information, there is no evidence of when he had knowledge of the alleged contravention.
[30] The applicants state that they do not need to provide evidence of what was within their knowledge regarding the alleged contravention, and that the onus is always on the respondent who is raising the limitation period issue. On the other hand, the respondent states that the six-week timeline is a condition precedent to bringing the application, and that it is up to the applicants to establish that they only had knowledge within the six-week period.
[31] The six-week period is to be calculated from when the applicants personally became aware of the alleged contravention. They must have knowledge that the councillor was present at a meeting when the matter in which he has a pecuniary interest was the subject of consideration, and that the councillor either failed to disclose his interest in the matter, took part in the discussion of, voted on any question about the matter, or attempted to influence the voting on the question: see Van Schyndel v. Harrell (1991), 1991 CanLII 7184 (ON SC), 4 O.R. (3d) 474 (Gen. Div.).
[32] The respondent has the burden of establishing a contravention of the limitation period if they seek to enforce it. The respondent must be able to demonstrate, on a balance of probabilities, that the applicant had some knowledge which led him to have a reasonable subjective belief that a breach of the MCIA has occurred: see Hervey v. Morris.
[33] In Methuku v. Barrow, 2014 ONSC 5277, 29 M.P.L.R. (5th) 143, the applicant adduced evidence that he only became aware of the potential issue engaging the question of whether or not the respondent was in a conflict when he read an article posted online. Although the court had suspicions about that evidence, it was not satisfied that the respondent had met the onus of establishing, on a balance of probabilities, that the applicant knew of the issue which would engage s. 5 of the MCIA at any earlier time than when he had testified to.
[34] I agree with and adopt on the reasoning of Perell J. in MacDonald v. Ford, 2015 ONSC 4783, 41 M.P.L.R. (5th) 175. Section 8(2) of the MCIA (s. 9(1) of the former Act) creates a temporal condition precedent to be satisfied by the applicant. It can be labelled a limitation period but is not a conventional one that affords the respondent with a technical defence. The six-week period provided for in the Act considers only the subjective knowledge of the applicant, and thus there is no basis for applying the objective discovery principles in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. This finding comports with the court’s analysis in Hervey v. Morris and Methuku v. Barrow.
[35] If the applicant had actual or constructive knowledge of the facts on which the alleged contravention of the MCIA is grounded more than six weeks before an application under the Act is issued, that application will be statute barred because it was not brought in time. An applicant should explain, in his or her application, when he or she acquired knowledge of the facts of the alleged contravention of the Act. Then the onus shifts to the respondent to prove that the applicant had actual or constructive knowledge at an earlier time, thus making the application untimely: see MacDonald v. Ford.
[36] The applicants are required to lead evidence of when they became aware of the alleged contravention. Once the applicants have satisfied that onus, the burden of establishing a contravention of the limitation period shifts to the respondent.
[37] In the case at bar, there is no evidence from the applicants as to when they acquired knowledge of the facts of the alleged contravention. Mr. Lewis (who is not an applicant) testified about when he found out about the Resolution, but did not provide evidence about when he learned of the alleged contravention. This is not evidence of when the applicants became aware of the relevant information.
[38] The applicants have not met their initial onus of demonstrating that their application is timely. They have not satisfied the temporal condition precedent of the MCIA. The application is therefore dismissed.
