The Ontario Municipal Board will decide next month whether opponents to the Hamilton city council’s February decision to approve a revised ward boundary structure can use an argument that councillors ignored their fiduciary duty to constituents.

Hamilton tax lawyer Craig Burley is proposing to argue that city councillors engaged in bad faith by ignoring the information provided by the city’s hired consultants, Watson and Associates, on proposed ward boundary options, and instead adopted their own ward boundary structure without regard to residents’ interests.

Burley, who is representing Stoney Creek resident Mark Richardson, one of two people who launched an appeal against the decision, said the argument is that politicians breached their fiduciary duty by knowingly approving a ward boundary option they acknowledged during the debate would be appealed to the board.

“They knew (the ward boundary option approved) was inappropriate,” he said.

However, lawyer Steven Ferri, a partner in the Toronto law firm Loopstra Nixon, will be introducing a motion asking the board to remove Burley’s so-called bad faith issue from a list of items the board will hear. That one-day hearing on the motion will be discussed on Sept. 18. A location has yet to be determined.

The issue was one of several items the Ontario Municipal Board decided Aug. 3 in its pre-hearing at the Dundas Town Hall that lays the groundwork for what is expected to be a lengthy hearing starting from Oct. 19 to 27.

In February, Hamilton councillors rejected consultant's recommendations that would have added an extra ward to the current 15, or retained the current 15 wards but redraw the boundaries so ward populations would be equal across the city.

Councillors at the time argued they didn’t want to change the boundaries because the city’s rural residents would lose some of their representation at city hall. Instead, council made a few boundary changes that impacted the Mountain and Stoney Creek before approving their modified boundary structure. Representatives of the consultants stated at the time the changes made by councillors didn’t do anything to improve the lack of democratic representation with the present system.

The pre-hearing, overseen by members Bruce Krushelnicki, a veteran urban planner who spent 11 years with the City of Burlington, and Paula Boutis, a lawyer recently appointed to the board, also identified the parties and participants in the hearing.

The other party to the hearing is Rob Dobrucki of Dundas, who will be providing at least three ward boundary alternatives for the board’s consideration. Dobrucki, who is representing himself, identified his main argument is the quality of the population in the proposed ward bound structure.

Ferri, who was hired by the City of Hamilton to represent it in the hearing, objected to Dobrucki’s request to provide up to seven alternative ward boundary options during the hearing, arguing the city would have to mount a defence against all the options and would unnecessarily extend the hearing beyond the scheduled seven days. Ferri argued the issue under scrutiny is the proposed ward boundary structure passed by council in February, and not various other boundary options.

“The amount of alternatives should be curtailed,” said Ferri.

Krushelnicki allowed Dobrucki to identify three boundary options, while also requesting the city to provide any population information up to 2026 for Dobrucki’s use.

Dobrucki, Burley and Ferri have also not yet finalized a list of issues that will be discussed at the hearing. Krushelnicki encouraged them to settle on the issues prior to the Sept. 18 hearing date.

One evening has been set aside on Oct. 24 to allow the participants to provide evidence to the board. The participants will include Matt Jelly, Maureen Wilson, Peter Hutton, Don McLean and Colleen Wicken representing the neighbourhoods that surround Mohawk College, and Karen Marcoux on behalf of the Gourley Park Community Association.

Krushelnicki said a decision by the board is needed before the end of the year to accommodate any changes if needed to the city’s ward boundary structure in time for the 2018 municipal election.

Written by Kevin Werner at Hamilton Community News