CBRM Decision

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DECISION NSUARB-MB-10-052011 NSUARB 110

NOVA SCOTIA UTILITY AND REVIEW BOARD

IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT

- and-

IN THE MATTER OF AN APPLICATION by CAPE BRETON REGIONALMUNICIPALITY to confirm the number and boundaries of the polling districts and toconfirm the number of councillors at 16

BEFORE:

COUNSEL:

BOARD COUNSEL:

HEARING DATE:

Roland A. Deveau, a.c., Panel Chair

David J. Almon, LL.B., MemberMurray E. Doehler, CA, P.Eng., Member

CAPE BRETON REGIONAL MUNICIPALITYRobin Campbell, a.c.

Richard J. Melanson, LL.B.

May 30 - 31 , 2011

FILED UNDERTAKINGS: June 15, 2011

DECISION DATE:

DECISION:

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July 18, 2011

Application denied. Number of pol li ng d is tr ic ts andcouncil lors set a t 12. The matter is remitted back to theMunicipality to prepare polling district boundaries to bereviewed by the Board.


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INTRODUCTION

[1 ] The Municipal Government Act, S.N.S. 1998, c. 18 (the "Acf') requires the

council of every municipality to conduct a study and make an application to the Nova

Scotia Utility and Review Board (the "Board") to confirm or alter the number of

councillors and the boundaries of the polling districts. Section 369 states:

369 (1) In the year 1999, and in the years 2006 and every eighth year thereafter thecouncil shall conduct a study of the number and boundaries of polling districts in themunicipality, their fairness and reasonableness and the number of councillors.

(2) After the study is completed, and before the end of the year in which the study wasconducted, the council shall apply to the Board to confirm or to alter the number andboundaries of polling districts and the number of councillors.

[2] Cape Breton Regional Municipality ("CBRM" or the "Municipality") applied

to the Board on November 29, 2010 to confirm the present number of councillors and

polling districts at 16, and to confirm the boundaries of the polling districts.

[3] Following five days of hearings in 2007, the Board's decision of October

30, 2007, Re Cape Breton Regional Municipality, [2007] NSUARB 154 (Board's 2007

Decision), set the number of polling districts for CBRM at 16 (each electing onecouncillor), and established CBRM's polling district boundaries. In that proceeding, a

citizen's group calling itself "Voices of the Electorate" (V.a.T.E.) had requested a

reduction of council size to 8 polling districts and councillors.

[4] In its Decision, the Board concluded:

[151] .. , the Board has concluded that CBRM conducted a flawed process in carryingout its s tudy under s. 369 of the Act, respecting the fairness and reasonableness of thenumber of councillors and polling districts. Council, in following a deeply flawed process,has not helped the community find common ground and reach a consensus, or evenreach a point where an informed majority viewpoint is established.

[152] This finding leaves the Board in a difficult position. The Board concludes thatCBRM is a community that is divided on the style and method of governance which itdesires fo r its municipal government. Taking into account the complexities of thegovernance issues being raised by the opposing parties (as well as their potential impacton the future of CBRM), and considering the strongly entrenched positions of the

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[5]

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respective parties, the Board expects that any proper study and public consultationprocess will be somewhat lengthy.

[153] The Board determines that it would be disruptive to the electoral process if itdirected CBRM to complete a further study, file an application, and conduct a furtherhearing in the first few months of 2008. Apart from the undue confusion such a processwould cause for electors, the quality of the study and public consultation could becompromised by the relatively short timeline which is available before preparationscommence for the 2008 municipal election.

[154] It is not appropriate for this Board to impose its view on the CBRM community,when the views of the community are not fully known and have not even been properlycanvassed by its Council. There is insufficient evidence on either side, at this time, topersuade the Board as to the best size of Council for CBRM. In the circumstances, theBoard concludes that the status quo should be maintained for the 2008 municipalelection, Le., 16 councillors elected from 16 polling districts. With respect to pollingdistrict boundaries, the Board, as noted above, approves the proposed boundaries inCBRM's application.

[155] Beyond 2008, the Board finds that CBRM must undertake a proper studyregarding the fairness and reasonableness of the number of councillors and pollingdistricts, followed by appropriate public consultation.

[157] The Community must be properly consulted in an open dialogue as to thegovernance style and Council size. The process of consultation must be led by Council,not directed, curtailed or stifled by it. By leading, Council should enter the discussion withan open mind. Council may want to consider the use of independent discussion leaders.Council may want to break the review process into smaller stages, involving discussion intopics such as the role of councillor, possible governance models, and the size ofCouncil. Council may want to consider, after an appropriate period of discussion,analysis, presentation and reflection, to consult the public on their views through aplebiscite.

[159] While the Board is not inclined to order a plebiscite at this point, it reserves theability to do so, in the event it concludes that CBRM Council has not adequatelycanvassed the public's views on the issues, in an open and informed manner.

[160] The Board orders CBRM to conduct a proper study on the size of Council prior tothe 2012 municipal election. This study must be accompanied by appropriate publicconsultation as outlined in the Halifax Regional Municipality decision, at paras. 106 to111 and para. 115. The Board directs CBRM to file a new application as to the numberand boundaries of polling districts no later than December 31, 2010. That application willbe the subject of another hearing prior to the 2012 municipal election.

[Board Decision, 2007 NSUARB 154]

CBRM's present application was filed on November 29, 2010. On January

25, 2011, the Board issued a Hearing Order setting down a timeline leading to a hearing

commencing May 30, 2011. The Hearing Order allowed sufficient time for requests by

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formal intervenors to participate, the exchange of Information Requests, and the filing of

letters of comment by the public and requests to speak at the evening session.

[6] Following advertisement in the Cape Breton Post, the hearing was

conducted in Council Chambers in Sydney, Nova Scotia on May 30 and 31,2011.

[7] Richard J. Melanson, LL.B., acted as Board Counsel at the hearing.

[8] An evening session was held on May 30th. Six persons made

presentations to the Board.

[9] The Board also received six letters of comment from the public, two of

which also testified at the hearing.

II EVIDENCE PRESENTED BY CBRM

[10] Counsel for CBRM called John Heseltine, Councillor Gordon Macleod

and Councillor Clarence Prince as witnesses on behalf of CBRM.

[11] There are presently 16 councillors elected from 16 polling districts. The

population of CBRM, according to the 2006 Census, is 105,968 and has a large

geographic size. There were minor discrepancies in several references to its

geographic size cited by CBRM in the application (ranging from 2,433 to 2,539 square

kilometers). For the purposes of this proceeding, the Board will adopt the latter amount,

since it was the figure used to prepare the polling district statistics.

[12] Table 2.1 below, compiled by Mr. Heseltine, sets out the estimated

number of eligible electors in the respective 16 polling districts, based on the polling

district boundaries used in the 2008 municipal election. CBRM proposes to retain the

same number of polling districts and the identical boundaries:

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12

34

5

67

8

910111213141516

4,7545,538

5,1375,1955,2575,1815,3925,7855,8114,9755,0664,8774,4385,2055,5195,106

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1,047167

795518

508

5

6

7083

7541012

166

Total number of electors: 83,236Number of councillors: 16Average number of electors per councillor 5,202

[Stantec June Report, Exhibit C-1, Appendix A, p. 2.3]

[13] The Corporate Services Committee of CBRM Council received a January

8, 2010, memo from the Municipal Clerk and Chief Returning Officer for CBRM on

January 11, 2010. The Committee recommended to Council that an "appropriate"Boundary Review Committee be appointed to carry out the review process in

accordance with the two phased process described by the Board in its prior decisions,

including initiatives to gather public input in accordance with the Board's directions.

[14] Following receipt of the recommendation of the Corporate Services

Committee on January 19, 2010, CBRM Council directed staff to engage a consultant to

work with the Boundary Review Committee with emphasis on gathering public input

during the phased process, and also directed that the Boundary Review Committee

consist of the Committee of the Whole (which includes all councillors).

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[15] John Heseltine is a consultant with Stantec Consulting Ltd. ("Stantec"),

who was retained by CBRM to conduct the study into the appropriate number of

councillors and polling districts and the boundaries of the districts (the "Stantec

Report"). He described the process undertaken by CBRM leading to the present

application. He was qualified to testify as an expert able to provide opinion evidence in

municipal organization, governance, community planning and demographic modelling.

[16] Mr. Heseltine conducted his consultative engagement in the two phases

contemplated by the Board and by the Committee of the Whole.

[17] The Stantec Report is actually comprised of two parts: the study of the

appropriate number of polling districts and councillors was presented to CBRM Council

in June 2010 (the "Stantec June Report"), while the study of the appropriate polling

district boundaries was presented to CBRM Council in October 2010 (the "Stantec

October Report").

[18] The Stantec June Report contains the review of the considerations to be

taken into account in determining the number of councillors, including sections 368 and

369 of the Act.

[19] In the Stantec June Report, Mr. Heseltine also reviewed municipal council

sizes and representation for all towns, rural municipalities and regional municipalities

(Le., CBRM, HRM and Queens) in Nova Scotia.

[20] His research found that CBRM's councillors each serve about three timesas many residents as the average Nova Scotian municipal unit; however, the area

covered by the individual councillors, on average, ranks 16th, which places it near the

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bottom of Nova Scotia's list of 24 regional and rural municipalities, and fairly close to the

average area for all municipal units in Nova Scotia (including towns).

[21] According to a survey by the Union of Nova Scotia Municipalities

("UNSM"), Mr. Heseltine noted that CBRM councillors receive the second highest level

of compensation among 49 responding municipal units (49 of 55) in the province, at just

over $40,000 per councillor, behind only HRM. The HRM and CBRM councils cost

among the least of any in the province in per capita terms.

[22] Mr. Heseltine also carried out a comparative analysis of large

municipalities, by population, across Canada. CBRM is in the 100 largest municipalunits in Canada. According to the 2006 Census, it ranked 47th.

[23] It is also among the top 250 ranked by land area and, as Mr. Heseltine

noted, it is one of a small group of significantly populated areas in these 250 units which

covers substantial urban and rural areas. He noted that CBRM contains "a substantial

urban core surrounded by extensive suburban and rural areas. It is the seventh largest

by area among the 100 most populous municipal units in the country". Mr. Heseltine

recognized that compact urban centres "place very different demands on their political

representatives" than do large municipalities having a mix of urban, suburban and rural

constituencies.

[24] Mr. Heseltine added:

In terms of representation per capita, CBRM also ranks fairly high. CBRM, on average,has one municipal political representative for about 6,000 residents, which ranks it 77thamong the top 100 (alternatively, its residents have the 23rd most representation).[Emphasis added]


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[25] He conducted regression analysis, which he reviewed in his testimony,

analyzing council size against both population and geographic size for Canada's 100

most populous municipal units.

[26] He concluded that there is a strong correlation between population and

council size. His regression analysis showed that, based on population, council size in

CBRM, including the Mayor, should total 12.5 members.

[27] Mr. Heseltine also conducted regression analysis with the group of 35

municipalities which he considered to be similar in nature to CBRM in terms of its mix of

urban and rural areas, and having a large geographic size. In this case, he found astrong correlation, with the analysis showing a council of 10.9 members (including the

Mayor).

[28] He found a much weaker correlation in terms of land area, with the

regression analysis showing that council size in CBRM, including the Mayor, should be

17.7 members.

[29] Stantec also arranged for a telephone survey to be conducted by a third

party firm. As the Board will canvass later in this Decision, the methodology was

explained by Mr. Heseltine to CBRM Council in advance, based on the following

approach:

Based on our proposal, a quota sample approach was adopted whereby [the polling firm]was required to collect 50 responses from each of the 16 current Council Districts. Theuse of a quota approach ensured representation from throughout the municipality as well

as guaranteeing sufficient numbers to support cross tabulation of areas.


[30] The telephone survey asked respondents their opinions on three

questions.

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[31] The first question asked CBRM residents to rate the importance that they

place on a variety of roles they would typically expect councillors to carry out. Mr.

Heseltine highlighted that the respondents placed a consistently high level of

importance on all seven characteristic roles offered in the survey:

[32]

a.b.c.d.e.f.

g.

Commitment to lowering municipal taxesAbility to understand and apply CBRM policyWillingness to work on your behalf to help you to get services or assistanceVision for the future of CBRMCommitment to improving municipal facilities/servicesAbility to work with other members of CBRM CouncilAbility to improve or obtain services/facilities for your district/community/area

The second question measured the respondents' expectations of the

ability of Council to achieve the following benefits based on its relative size (Le., as a

smaller or larger council):

[33]

a.b.c.d.

Better service to citizensBetter interaction among CouncillorsMore effective municipal governmentCost savings

The results were as follows:

... Responses suggested significantly higher expectations from a smaller council than alarger one. Respondents had particularly high expectations concerning cost savingsfollowed by more effective governance. The strongest expectation from a larger councilwas for better service but even on service more felt that the prospects of a smallercouncil would be better than those of a larger one.


[34] Finally, the third question asked the respondents to indicate their preferred

council size.

[35] The most common response (254 respondents) was to retain the status

quo of 16 councillors. A significant cluster favoured a smaller council, with council sizes

of 8, 10, and 12 receiving 101, 131 and 159 positive responses, respectively. No other

specific council size received any material support.

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[36] In summary, 304 respondents (40.4%) preferred a Council equal to or

larger than the current 16 members, while 448 (59.6%) preferred a smaller Council.

[37] While the answers were given as a single number, the responses were

also compiled in the following Table 3.1 as an overlapping series of clustered groupings:

Ta b l e 3.1 Preferred N u m b e r o fCounc i l l o r s b y Range

3 - 7 24 3.2%4 - 8 119 15.8%5 - 9 126 16.8%6 - 1 0 255 33.9%7 -11 253 33.6%8 - 12 408 54.3%

~ " " ~ _ " ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ~ ' ' ' ' ' ' ' ' ' ' ' , ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' _ ' ' ' . ' ' ' ' ' ' ' . ' ' U ' ' ' ' ' ' . ' ' ' ~ o .. " " " . " , "" " " " , ~ '0"

9 - 1 3 315 41.9%1 0 - 1 4 311 41.4%11 - 15 182 24.2%12 - 16 429 57.0%13 - 17 272 36.2%

.......... ~ . , _ .. . . , . , , _ ~ ,.. , . . n . . - . . . . . " " . . . "" ' ' ' ' ' n __ _ "

14 - 18 271 36.0%15 - 1 9 265 35.2%16 .. 20 284 37.80/017 -21 30 4 .0%18 .. 22 29 3.9%

19 - 2 3 24 3.2%f-....,..-_._ , , ~ - -- _ _.-_.- --.- - - - ..-- - - ~ - - - --..- --, "'"'--. "",,,,,--20 -> 23 41 5.5%ResPQnde.nlS 752


[38] In conducting his study, Mr. Heseltine also consulted focus groups and

interviewed present councillors.

[39] Unfortunately, the two focus groups were not well attended, with only a

total of five persons participating.

[40] The findings of Mr. Heseltine's conversations with the councillors were

consistent with the opposing submissions of the councillors made in this proceeding,

whether by letter or as a witness or presenter at the Board hearing.

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Based on his review of the above analysis, Mr. Heseltine concluded:

4.2 RECOMMENDATIONResearch and consultation conducted in Phase 1 of this project, in our opinion, narrowsthe choice of sizes for CBRM Regional Council to two options: maintenance of thecurrent Council of 16 members or reduction of Council to 12 members.

Continuation with the current Council of 16 was selected by the largest number ofrespondents to the survey of any Council size choice. The consensus among currentCouncil members appears to be that Council is functioning reasonably well with 16members. Those who favoured the status quo argued that fewer Councillors wouldreduce access for citizens while unreasonably increasing the workload of Councilmembers.

On the o ther hand, more respondents chose to reduce the size of Council than tomaintain or increase its size. The average of responses to our survey concerningpreferred size was 12.9 Councillors and our statistical benchmarking presented inSection 2 generally supports a Council of about 10 members plus the Mayor. Twelve wasthe second most popular choice for Council size and the next two most frequently

selected numbers were less than rather than more than 12. Few respondents to thesurvey selected 13, 14, or 15 Councillors, and most contacts with whom we spoke in thecourse of consultations suggested that minor reductions would not be worth undertaking.Finally, twelve members was the number invariably preferred by Councillors whofavoured a reduction in Council membership as well as being the most acceptablealternative to those who favoured the status quo.

Reduction of Council to 12 members will obviously continue a progression that has beenunderway since the formation of CBRM . The most frequently cited reason for reducingthe size of Regional Councl1 was to reinforce the role of Council as a policy-making bodyand get away from so called ''pothole politics" that many Councillors referenced asdistracting and inappropriate.

The encouragement of a more regional perspective on CBRM Council is part of thematuration of the Municipality as a regional government. Some Councillors havesuggested that it is time to reinforce regional identity over local communities. Reductionin the number of Council representatives will likely necessitate the combination of areasof former towns that have so far remained distinct within the Council District structureused in CBRM. As noted previously, it will also likely require the incorporation of somesuburban lands into the two largely distinct rural districts within the municipality.

The primary challenge of reducing Council size would appear to be the impact on theworkload of Councillors. Some Councillors acknowledged in interviews that based oninteraction with their counterparts with other municipalities through UNSM and theFederation of Canadian Municipalities, they are more engaged in direct response tocitizen concerns than most. This is very likely because CBRM is a tight knit community inwhich most residents have grown up together and, despite the still large local population,generally know each other personally, which makes it difficult to pass off direct requestsfor information and assistance.

Councillors suggested that if Council size is to be reduced it would be very beneficial toeducate the public concerning the role of local government relative to the Provincial andFederal levels. This could be combined with a tighter structuring of the Council office toreceive inquiries from citizens and direct them to municipal staff, and senior governmentagencies when appropriate. Ultimately, however, it is up to Councillors to determine howthey choose to serve their constituents. A smaller Council will increase the challenge for

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those who prefer to serve directly but the clear evidence is that there are many municipalcouncil across Canada in which fewer members serve far more constituents than CBRMCouncillors presently do or will if their numberis reduced to 12.

It is, therefore, our recommendation that the size of Cape Breton Regional Council bereduced from its current membership of 16 Councillors and the Mayor to 12 Councillors

and the Mayor. [Emphasis addedJ

[Stantec June Report, Exhibit C-1, Appendix A, pp. 4.3 - 4.4J

[42] Mr. Heseltine submitted the Stantec June Report to CBRM Council on

June 15,2010, recommending a reduction of Council to 12 councillors (plus the Mayor).

Council passed a motion by a vote of 10 to 7 to retain the status quo of 16 councillors

and to proceed with the second phase of setting the boundaries based on a council size

of 16.

[43] Mr. Heseltine then conducted a study into the reasonableness and

fairness of the boundaries of the 16 polling districts. He made various suggestions for

changes to the boundaries, which he presented as options in his Stantec October

Report reviewed by CBRM Council on October 19, 2010. Again, Council did not adopt

his recommendations and ultimately decided to maintain the present boundaries.

[44] On November 29, 2010, CBRM filed its application with the Board on the

basis of 16 polling districts, each electing one councillor within the present boundaries.

[45] The Board also notes that Mr. Heseltine was retained earlier by CBRM to

conduct two studies of CBRM's demographics, which show a substantial out-migration

of young people leaving the Municipality, except for Eskasoni.

[46] An Integrated Sustainability Plan prepared by Mr. Heseltine, approved byCBRM Council in March 2010, forecasts a decline in CBRM's population of 21.2% over

the next 20 years. The number of children is forecast to decline by a third to 10.4% of

the population, while the number of seniors will double to 35.6% of the population.

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[47] Councillors Gordon Macleod and Clarence Prince were also called by

CBRM to testify in support of the application. Both councillors expressed concerns with

the impact of a reduced council size upon their ability, and that of other councillors, to

fulfill their role on behalf of constituents. In their testimony, they covered many of the

points made in their letters of comment filed with the Board (and described in greater

detail later in this Decision).

[48] They testified that a smaller council would greatly increase the workload of

councillors and threaten their accessibility by their constituents.

III EVIDENCE PRESENTED BY THE BOARD CONSULTANT

[49] Board Counsel retained Dr. Robert J. Williams to provide evidence in this

matter. He was qualified to testify as an expert able to provide opinion evidence on

municipal electoral systems and principles related to the establishment of municipal

boundaries.

[50] Dr. Williams prepared a Report in relation to CBRM's Boundary Review

Application (the "Williams Report"). His report started with a summary of past Board

Decisions, the work of the Nova Scotia Electoral Boundaries Commission, and the

following quote from Madame Justice Mclachlin (as she then was):

... Representation comprehends the idea of having a voice in the deliberations ofgovernment as well as the idea of the right to bring one's grievances and concerns to theattention of one's government representative; as noted in Dixon v. B. C. (A. G.), [1989] 4W.W.R. 393, at p. 413, elected representatives function in two roles - legislative andwhat has been termed the "ombudsman role". (p. 32)

[Excerpt from the "Carter" Decision, Exhibit C-4, p.12]

[51] He then reviewed the pre-filed evidence of CBRM, the process followed by

Mr. Heseltine and the resulting Stantec Reports. In essence, CBRM Council wanted a

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"hands-off' approach to the review, and engaged a consultant to do most of the public

consultation and analysis.

[52] In his review, Dr. Williams had various comments and questions, some of

which are quoted below:

... Nowhere in the public record is there is an examination of "various roles" of aMunicipal Councillor, a feature of an appropriate public consultation process that theBoard alluded to on several occasions as a desirable component of a council size review.

The blog entry for April 19, 2010 addresses the minimum size of councillors in NovaScotia, data on the population represented by municipal officials in Nova Scotia andinformation on the remuneration to councillors and the "cost" of municipal councils inNova Scotia. This information does not address "council structure" in a way that canunderpin the expected evaluation of "appropriate council governance structures . . . .

Providing a "statistical benchmark" without considering criteria beyond population andarea that contributed to the size of the council in the first place undermines theinterpretations that may be drawn from it.

Of note in Option 2 in the Phase Two report is the idea of drawing polling districtboundaries so that urban, suburban, and rural areas are captured within each district.Proponents of the idea were said to foresee that such a design would offer "thepotential to change the dynamic of Council" - presumably by placing a price on whatmight be considered excessive parochialism. The marriage of this approach with theconcept of "community of interest" in CBRM in the light of the "principle of the

representation of community" quoted in section B.2.b.i (above) and the Board'sarticulation of its understanding of "community of interest'" is not explained . . . .

If getting away from "pothole politics" by Regional Council were thought necessary,where would such "distracting and inappropriate" matters actually be addressed infuture? How does this belief that Regional Council should rise above "pothole politics"square with the view of other observers that Regional Councillors in Cape Breton are"more engaged in direct response to citizen concerns than most"?

[53]

[Exhibit C-4, pp. 22-24]

He elaborated on what he thought a study on governance should include:

... the key points of information or of intelligence gathering is, in fact, the elected councilto ask them, What works? What doesn't work? What's your workload like? What are thechallenges that you, as a representative face? ...

[Transcript, p. 180]

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[54] One of the points raised by CBRM in support of the status quo was the

lack of public interest. Dr. Williams, when asked about the lack of public participation

stated:

A. It is not a topic that get people very excited ...

Q. Do you think it would be safe to conclude that that's because there's little interestin changing the council?

A. No, I would not. I would say there's very little interest in the mechanics of politicalrepresentation. That's the part that I'm getting at. It's not something that peoplegive very much thought to.


[55] Council decided to maintain the status quo after reviewing the Stantec

June Report. Dr. Williams commented in his Report that it was impossible to ascertain

a rationale for Council's decision, at least a collective rationale, as opposed to the views

of the individual councillors expressed in Council's debate on the issue.

[56] In an attempt to determine a recommendation for the right size of Council,

Dr. Williams started by stating:

One of the few academic studies of the size of municipal councils begins by citing JamesMadison, writing in The Federalist, Number 54, in 1788: "no political problem is lesssusceptible to a precise solution than that which relates to the number convenient for arepresentative legislature ... " (Muzzio and Tompkins, 1989, page 83). More than twohundred and twenty years later, the problem is no closer to a "precise solution,"

In answer to the question "what is the right size for a municipal council?" the simpleanswer appears to be "it depends."

[Exhibit C-4, p. 25]

[57] He commented upon the weight that should be given to the analysis of

council sizes in other jurisdictions:

.. , the numbers of, let's say, the size of councils, in and of itself, is not driven by any kindof formula that I can find out. It's an artifact o f a whole lot o f things that are not .. , thatcan't be controlled, that are completely unpredictable, and are sometimes driven byfactors that are not really relevant at all. ...


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[58]

[59]

[60]

[61 ]

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Dr. Williams reviewed the experience with amalgamations stating:

One of the hallmarks of amalgamated municipalities is a sharp reduction in thenumber of elected officials in the new unit; one of the less noticeable characteristics is thetendency to tolerate patterns of representation - at least at the outset - that accommodatethe pre-amalgamation units in some way. In other words, many newly-amalgamatedmunicipal councils are frequently larger than councils in municipalities of similarpopulation or area that have not been spliced together from existing municipalities sincethere is an implicit sympathy (if not political prudence) for providing recognition to thoseabout-to-be-defunct municipalities. Basically, the size of the council is often pegged at anumber that is the result of its "birth process."


However, he then stated that such amalgamations must change:

... many amalgamated municipalities, for political and other reasons, keep some of thoselines in place because it makes it a little more palatable to start with. But at some stage, itstrikes me that if, indeed, the regional municipality as an entity is here for the long term,

then you would have to begin to move away from that. But it's not going to happenquickly ...

... Look, at some point, you've got to move away from that and try to recognize that thosedistinctions don't ... this may be [perjorative] but they don't matter any more when itcomes to delivering municipal services or recognizing where the community is . . . .

[Transcript, pp. 208-211]

The Nova Scotia amalgamations were described as follows:

Both Nova Scotia regional municipalities also include a core urban area (with high

population density) as well as communities that are non-urban, ranging from mediumdensity suburban to sparsely populated rural hinterlands ...

Historically in Canada, there has been a predisposition to over-represent non-urbanelectors in provincial legislatures and the federal parliament (as well as somemunicipalities); .. ,

Basically, then, the size of a council may also be influenced by the geo-social complexityof the municipality.


Dr. Williams commented on CBRM Council's default to the status quo:

The status quo is the default "solution."

However, endorsing the status quo is an option, as much as would be a decision to electcouncils of 12, 16, 20, 24 or any other number. The status quo therefore also requires arationale. As Sir Winston Churchill is said to have observed: "If you simply take up theattitude of defending [the status quo] there will be no hope of improvement." The Boardhas been left with representations based on argument rather than evidence, on opinionrather than information.


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[62]

[63]

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He further elaborated:

... You need to be sure and explain to the Board, to the community, and other membersof council, apparently, why, in fact, the status quo is a good option. What does itaccomplish that some other number doesn't?


In determining a size of council Dr. Williams considered three elements:

the capacity of the council to provide effective political management, effective

representation, and accountability. As he explained:

. .. There may be others, but from those three, I would look at, is the system ... is thepolitical system one in which the municipality can get the job done? Do council meetingsallow them to address all of the matters that come to them without the burnout or withoutthe long, long meetings, whatever it might be? Can they get their work done with the

number theive got and is that still possible by some other number?[Transcript, p. 216]

[64]

[65]

For the first element, he elaborated as follows:

Research in social psychology hypothesizes that size is a significant factor in influencingthe "quality" of decision-making since, in general, there is a trade-off between efficiency(more likely in smaller bodies) and full availability of alternatives (more likely in largerones).

An application in support of a regional council of a specific size should articulate thegovernance style the council itself wishes to practice and should provide consistent or

conclusive research evidencein

supportof

the appropriatenessof

that modelto

themunicipality and to a council of a certain size. ... How much material must council/orsreview and understand before participating in council decision-making? How muchcasework is directed to council/ors? [Emphasis added]


He further went on to state:

But even on the political level, how do you organize the officials you've elected todeliver good governance to make sure that there is a reasonable debate, a reasonablelevel of knowledge, meetings that don't drag on all day long, whatever your goals are.Again, that's part of the perspective that the municipality needs to decide how they wantto run themselves . . . .


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[66]

[67]

[68]

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Regarding effective representation he stated:

councillors representing rural areas still face additional challenges that need to beaddressed in an application in a way that acknowledges a commitment to "effectiverepresentation" for all residents.


He further elaborated:

But I would think that there are a lot of the things that he and his ... some of hiscolleagues have to deal with that probably could be handled by officials, by staff, in somefashion and maybe a more efficient or dedicated team of people who could take thosequestions and work with them without having the councillor to have to do all the phonecalls and all the door knocking. Again, it's looking for other ways.


He also observed that a municipality could somewhat address any "rural

challenges" as follows:

... I f that is a priority for the municipality to ensure that rural representation is a very highpriority and that it be within polling districts that are manageable, then you start with thatand you work around the rest. ...


[69] Accountability raises an issue of efficiency and depends on how other

groups are received by, and react with, council:

... if elected officials are expendable in the search for efficiency or if more elected officialsare desirable to meet some other broader goal, how would a council of a certain sizeaffect the quality of municipal democracy?

... An application that demonstrates how community, business and neighbourhoodgroups (and others) are successfully and systematically accommodated in the conduct ofmunicipal business would enhance the case for a council of a specific size.


[70] After considering all the factors, including the conclusions of the Stantec

June Report, Dr. Williams concurs that a council size of 12 would be appropriate forCBRM. As he stated:

And as you will see, I basically concluded that a 12-member council could still do thosethings in this particular community ...


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IV PRESENTATIONS - EVENING SESSION AND LETTERS OF COMMENT

Evening Session

[71] There were six speakers in the evening session, four of whom serve on

the present CBRM Council. All six spoke of the need for a reduced council size.

[72] Ken Jardine noted that one of the problems is that there is not an

adequate job description for the Mayor and councillors. He believes that this lack of a

job description is a contributing factor to the problem of defining council size and

boundaries. He also stated that how a councillor fulfills the role is an individual

decision, but it should start from a common ground. He understands that there are two

different roles for council: the Board of Directors model, and the Ombudsman model.

He concluded that regardless of what model is desired, the residents of CBRM I through

the results of numerous polls, surveys and studies, have indicated, on average, they

want a council size of 12.

[73] Arnold Mombourquette, a past councillor and, at one time, Deputy Mayor

for CBRM until his retirement in 2004, also supports a council size of 12, plus a Mayor.

He was not in attendance earlier in the day, but speculated on the arguments used to

support the status quo of 16 councillors, plus a Mayor. It is his belief that Council voted

for the status quo for, what he called, "job security". In support of this, he quoted

Councillor MacDonald who had stated at a community hall meeting on January 11,

2011, " ... it is very hard to vote on a topic that might take your job away, and I don't

blame any councillor for voting against that. .. ". He stated that not enough evidence has

been led to properly support the request for a status quo of 16.

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[74] Councillor Raymond Paruch stated his belief that a reduced council would

improve the "calibre of debate, resulting in a more effective decision-making process".

In looking at his career since he was first elected, he has noted that the role of

councillor has been changing to more of a policy driven decision maker. This, to him, is

evidence that a smaller council body is logical. He supports the Stantec June Report

and its conclusions and the methods used in reaching its conclusions. As evidence of

the support for his conclusion, he quoted some of the comments from CBRM residents

about the process, most of which were favourable.

[75] Councillor Kim Desveaux stated three reasons why she did not believe 16was the appropriate number for CBRM council. They are:

The workload anticipated under 12 councillors is manageable;

The current boundary set up faiis to reflect true community interests and

enforce the regional philosophy; and

CBRM needs a regional approach to tackle the huge problems it is facing.

[76] In determining the manageability of the workload, she commented

favourably on the new structure of council and on the number of internal and external

committees, which, if council was reduced, would not represent a large increase in

workload for anyone councillor. In response to the need to be available and answer

constituent calls, her analysis indicates it is not a significant daily burden and quoted

Mayor Morgan's testimony of 2006 when he stated: "Even if the council were to bemade significantly larger, all councillors will assume sufficient duties to be busy."

[77] On the issue of boundaries, Councillor Desveaux discussed her own

situation as to where she lives, who she represents, where her children go to school,

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where the recreational and social centres are located, and where shopping is done, all

of which are spread across three different polling districts, and within five kilometers of

each other. Her belief is that an increase in polling district size will still encompass

similar communities of interest and will probably lead to better representation. This will

also help enforce the regional approach which is required at council. She also stated

her support for the process and the results achieved by the consultant who was hired by

the Municipality.

[78] Councillor Derek Mombourquette, who reviewed the prior process in 2007

and the Board's resulting Decision, found it difficult to understand how council is asking

everyone to change in difficult times, but is not willing to adapt to the changes itself. He

supports the conclusions of both the consultant hired by CBRM and the Board's

consultant, who both recommended a council size of 12. After reviewing these reports

he has difficulty understanding why anyone could defend the status quo. He supports

the reduced size of council based on the parameters of review, but believes CBRM has

not yet answered the question of governance. He thinks that some of the councillors

still believe in the mindset of "pre-amalgamation" and that various models of

representation need to be discussed and examined. He also added that two of the

elements he had run his election campaign upon was to look at the structure of CBRM

and to consider an independent review of the size of council.

[79] Mayor John Morgan stated thatin his

three election campaigns there aretwo consistent principles upon which he has run: the need for a smaller council and that

the decision on size should be made by the Board with guidance from the broad

population base. Mayor Morgan reviewed the process followed by the consultants for

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both CBRM and the Board, stating that they followed the direction in the Board's 2007

Decision. He further stated that the case for 12 councillors was more easily defendable,

as now there is a set figure rather than a range, as was presented in the last hearing on

council size. He understands that some doubt may have been raised as to the

accuracy of the gauge of public opinion on the size of 12 councillors. In his view, public

support is clear for a smaller council. The Mayor suggested that if the Board has any

doubt, it could order a plebiscite on the matter.

Lettersof

Comment

[80] The Notice of Hearing also invited members of the public to advise the

Board of their written comments in advance of the hearing. Six individuals, all of whom

are councillors, responded including: Brian lahey, le e MacNeil, Clarence Prince,

Darren Bruckschwaiger, Gordon Macleod and Mae Rowe.

[81] In addition to submitting letters of comment, Councillors Gordon Macleod

and Clarence Prince gave evidence at the hearing.

[82] Brian Lahey is the Councillor for District No. 1 which he described as

incorporating "43% of a rural geographical area," including areas such as Grand Mira

North, louisbourg, Marion Bridge and Main-a-Dieu. It is his belief that people in the

rural areas of CBRM have concerns that they will lose their council representation, if the

Board chooses to downsize. It is his hope that the Board will maintain the status quo.[83] le e MacNeil is the Councillor for District No.3, which includes Glace Bay.

She noted that municipal councillors not only deal with municipal matters but "we

constantly deal with Provincial and Federal issues, because we are the closest body

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available to the residents." It was her opinion that "changing this municipal council in

lesser numbers would be detrimental to the people of this region."

[84] Clarence Prince is the Councillor for District No. 15, which encompasses

all of the former Town of Sydney Mines. He has served as an elected municipal

representative for the better part of two decades. He was critical of the Stantec June

Report which he said, "only made a weak attempt in determining the size of Council."

While he conceded that 16 members of Council can be "trying at times," councillors can

"aptly represent the diverse communities and residents we serve." It is his belief that a

smaller council will be very busy and less attentive to the needs of the residents.

Echoing the comments of some of his colleagues, Councillor Prince likened the role of a

municipal councilor to "something of a clearing house for nearly all concerns related to

public infrastructure and services." He noted that a decrease in the number of

councillors would result in "an excessive workload and would reduce citizen access."

[85] Darren Bruckschwaiger is Deputy Mayor and the Councillor for District No.

5 which includes River Ryan, portions of Glace Bay, as well as the communities of

Dominion, Lingan, Scotchtown and Gardiner Mines. He is in favour of retaining the

status quo of 16 councillors. In his view, reducing the size of council will reduce access

for the citizens, while unreasonably increasing the workload of council members.

[86] Gordon Macleod is the Councillor for District No. 14, representing the

North Sydney area and part of the former adjoining county area. He is in favour of

maintaining the status quo of 16 councillors.

[87] Councillor Macleod submits that reducing council size will "reduce access

for citizens while unreasonably increasing the workload of Council members". He states

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that constituents need help from councillors, such as "assisting seniors and low income

earners with affordable housing". He added that councillors are expected to assist in

matters related to provincial or federal issues because councillors are more accessible

than MLAs and MPs.

[88] Finally, he suggested that the Stantec Reports were flawed, in that the

public consultation was done by telephone survey (which he believed should not be

used to make such decisions) and, despite CBRM Council's decision to take a "hands-

off' approach to this exercise, Mr. Heseltine interviewed councillors individually.

[89] Mae Rowe is the Councillor for District No. 13, a large area including East

Bay, Ben Eoin, Big Pond, Pipers Cove, Boisdale, Frenchvale and Barachois. She

stated that 16 councillors, representing a population of approximately 100,000 across

numerous communities spanning 2,400 square kilometers, "seems reasonable to me."

She noted that there "is a real challenge to be able to attend all of the important

meetings and functions given the travel time involved." She further noted that

eliminating a few councillors would "not generate tangible savings," based on past

experience. She added that "our first priority needs to be stabilizing our region," which

cannot be done if Council is downsized.

V ANALYSIS AND FINDINGS

[90] Section 368(4) of theAc t

sets out the criteria for the Board to consider asfollows:

368(4) In determining the number and boundaries of polling districts the Board shallconsider number of electors, relative parity of voting power, population density,community of interest and geographic size.

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[91] In its previous decisions, the Board has provided specific guidance to

municipalities with respect to such applications:

VIII GUIDANCE FOR FUTURE APPLICATIONS

[106] The Board feels that it would be useful to provide some guidance to HRM andother municipalities with respect to future applications pursuant to ss. 368 and 369 of theAct. ..

A. Number of Councillors and Polling Districts

[107] It is the Board's view that the logical starting point under the Act is for Council todetermine the desired number of councillors. Questions related to the distribution ofpolling districts should be addressed in a second stage.

[108] Determining the size of Council involves the consideration of the desired style ofCouncil, the governance structure of Council, and a determination of an effective andefficient number of councillors.

[109] The style of government is a question which should not be decided by Council

until adequate public consultation has occurred respecting the expectation ofconstituents.

[110] However, the size of Council and its governance structure is a matter to bedetermined by Council in an informed debate after further consultation. On this issue itwould be helpful to consult senior staff and perhaps experts in the field.

[111] Once the total number of councillors and polling districts is determined, the taskbecomes one of distributing the polling districts to satisfy the objectives listed in s. 368(4)of the Act.

[Board Decision, 2004 NSUARB 11]

[92] In his memo dated January 8, 2010, the Municipal Clerk identified the

above two-phased approach to CBRM Council in launching the district boundary review

process.

[93] Section 368(4) of the Ac t sets out a number of factors for the Board to

consider in determining the number and boundaries of polling districts, including, but not

limited to, the number of electors and geographic size. The total number of electors is a

consideration clearly related to the number of electors in each polling district.

[94] The Stantec June Report contained a comparison of CBRM with other

large urban centres across Canada, both in terms of population and geographic size

(the latter comparison took into account the urban/rural nature of CBRM in selecting

appropriate comparators).

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[95] The Board finds it is appropriate to take into account what other

jurisdictions with large populations consider to be reasonable for their council size.

Moreover, the Board also finds it appropriate to consider other municipalities having a

large geographic size with urban and rural component parts. Nevertheless, the Board

places less weight on the latter factor because of the subjective nature of selecting

comparable municipalities, as noted by Mr. Heseltine, and what may be unique features

existing in those other municipalities.

[96] Nevertheless, the Board considers comparisons to other Nova Scotian

municipalities to be of little benefit, because of the vast difference in CBRM's populationwith that of the other municipalities in the province.

[97] Mr. Heseltine carried out a comparative analysis of large municipalities

across Canada. According to the 2006 Census, CBRM ranked 47th among Canada's

100 most populous municipal units. He concluded that there is a strong correlation

between population and council size. Based on population, council size in CBRM,

including the Mayor, would be 12.5 members. With respect to a group of 35

municipalities which he considered to be similar in nature to CBRM in terms of its mix of

urban and rural areas, and having a large geographic size, he also found a strong

correlation with the analysis suggesting a council of 10.9 members (including the

Mayor).

[98] Based on its review of the comparisons with other large urban

municipalities across Canada, the Board concludes that this is a factor which may

warrant a reduction of council size.

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[99] The issue of public opinion about council size was also raised at the

hearing.

[100] Councillors Macleod and Prince believed that the public consultation

process carried out by Stantec was flawed, in that it relied on a telephone survey and

interviews with the councillors, as well as poorly attended focus groups. Councillor

Macleod suggested that no reduction in council size should occur until a "proper

consultation" was cond ucted.

[101] Dr. Williams also expressed some concerns about the consultation

process.[102] Mr. Heseltine testified that the consultation process was reviewed with

CBRM Council in advance of the commencement of the engagement. In her

presentation in the evening session, Councillor Desveaux stated that the consultation

process was, in fact, reviewed with CBRM Council in advance. Further, no evidence

was presented by CBRM to challenge the statistical accuracy of the telephone survey

results.

[103] The public consultation process is to be determined by the affected

municipality in any given case. The Board's 2007 Decision did not direct any particular

mode of public consultation, merely that it be carried out in a reasonable and

appropriate way. Different municipalities will undertake different consultative processes

depending on their individual circumstances. While improvements or changes can

always be done to these consultative processes, such as defining the role of a

councillor and governance models, the Board is satisfied that the process was

reasonable and appropriate in this instance.

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[104] Further, the Board accepts the evidence of Mr. Heseltine and Councillor

Desveaux that the consultation process was reviewed with CBRM Council in advance

and was approved by it. The Board also accepts the evidence respecting the telephone

survey results.

[105] The Board finds that it is appropriate to consider public opinion in

determining the size of council. Ultimately, the public will pay for the governance model

adopted by CBRM, receiving the service levels and accessibility consistent with the

council size. In the end, it is their council. The Board considers that public opinion

(when properly determined) is a factor which should carry significant weight in

determining council size.

[106] In the present matter, the Board is satisfied that the polling results show

that a strong majority of CBRM residents desire a reduced council size. The survey

showed that 59.6% of respondents preferred a smaller council, while only 40.41

preferred a council equal to or larger than the current council of 16. Further, the polling

results indicated a preference to eliminate several councillors, not just one or two.

[107] The Board is sensitive to the concerns expressed by Councillors Macleod

and Prince (and other councillors) about the issue of accessibility and workload. The

Board has previously recognized the role of councillors in its decisions. The Board is

mindful that this role includes both a policy making role and an ombudsman role for

constituents.

[108] The Board also recognizes Dr. Williams' cautionary remarks about placing

too much reliance on comparisons of council sizes in other jurisdictions, stating that

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council sizes in other municipalities may be related to factors unique to those

municipalities and their provinces.

[109] Nevertheless, these comparisons in the Stantec June Report were not the

only factors considered by Mr. Heseltine. He also reviewed the other considerations,

including public opinion in favour of a smaller council size, as well as interviews with

individual councillors concerning potential impacts upon their role. Mr. Heseltine

recognized the possible effect on workload and accessibility:

The primary challenge of reducing Council size would appear to be the impact on theworkload of Councillors. Some Councillors acknowledged in interviews that based oninteraction with their counterparts with other municipalities through UNSM and theFederation of Canadian Municipalities, they are more engaged in direct response tocitizen concerns than most. This is very likely because CBRM is a tight knit community inwhich most residents have grown up together and, despite the still large local population,generally know each other personally, which makes it difficult to pass off direct requestsfor information and assistance.

Councillors suggested that if Council size is to be reduced it would be very beneficial toeducate the public concerning the role of local government relative to the Provincial andFederal levels. This could be combined with a tighter structuring of the Council office toreceive inquiries from citizens and direct them to municipal staff, and senior governmentagencies when appropriate. Ultimately, however, it is up to Councillors to determine howthey choose to serve their constituents. A smaller Council will increase the challenge forthose who prefer to serve directly but the clear evidence is that there are many municipal

council across Canada in which fewer members serve far more constituents than CBRMCouncillors presently do or will if their number is reduced to 12.


[110] The Board is satisfied that the Stantec June Report took a balanced view

of various factors and did not place undue weight on comparisons with other

jurisdictions or upon public opinion.

[111] In the Board1s 2007 Decision, the Board reserved the ability to order a

plebiscite in the event it eventually concluded that CBRM Council had not adequately

canvassed the public1s views on these issues: see para. 159 of the 2007 Decision. The

holding of a plebiscite was described as one of several ways to consult the public.

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[112] CBRM Council engaged Stantec to conduct a study, which included the

telephone survey described above. In these circumstances, the Board considers that a

plebiscite is not necessary and that the public has been appropriately consulted. As

noted above, the polling results show that a majority of respondents want a smaller

council size.

[113] From the evidence, it appears some may believe that cost savings will

result from a smaller council. The Board considers that potential cost savings are not a

material factor in assessing the request to reduce the size of CBRM's council. The

Board is mindful that any reduction in council size may, indeed, increase administrative

or support costs for the remaining councillors and negate some of the savings

occasioned by the reduction in council size.

[114] The Stantec June Report, in its conclusion, recommended that CBRM

Council be reduced from 16 councillors to 12 councillors (plus the Mayor). Mr.

Heseltine's analysis considered all of the above factors. CBRM Council did not accept

this recommendation, choosing to maintain the status quo of 16 councillors. In the view

of the Board, there is no collective rationale or explanation in the application as to why

the Stantec recommendation was not accepted by CBRM Council, given that it is based

on the results of an appropriate public consultation.

[115] Moreover, Dr. Williams, in his Report, concluded that a council of 12

members could satisfactorily fulfill the tasks of CBRM Council, including carrying out the

essential governmental functions, providing a constructive range of political

perspectives to debate issues and providing effective representation in the 12 polling

districts.

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[116] The presenters at the evening session also strongly favoured a smaller

council. The councillors and members of the public who spoke in the evening provided

compelling reasons why CBRM would be better served by a smaller council. Councillor

Desveaux noted that CBRM needs a "regional approach" to address the important

challenges facing the Municipality. Councillor Paruch, who was opposed to downsizing

in 2007, now supports a reduction in council size. He said a smaller council "would

improve the calibre of debate, resulting in a more effective decision-making process".

Ken Jardine, a member of the public, urged the Board to implement what a majority of

CBRM residents want, i.e., a smaller council size.

[117] Taking into account all of the evidence, the Board concludes that 12

councillors and polling districts (plus the Mayor) is an appropriate council size for

CBRM.

[118] As a result of the Board's finding that CBRM Council shall have 12 polling

districts, the second phase of this proceeding must address the reasonableness and

fairness of the boundaries of the respective districts. The Board now refers that issue

back to CBRM to determine the appropriate polling district boundaries and return to the

Board for the second phase of this proceeding. The Board reserves the jurisdiction to

consider the boundaries and will schedule a future hearing respecting that issue.

[119] The Board considers it appropriate to provide guidance to CBRM on one

point related to determining the boundaries.

[120] In establishing polling district boundaries, the factors to be considered

remain those outlined in s. 368(4) of the Act. One of the factors listed is relative parity

of voting power. In Re Halifax Regional Municipality, [2004] NSUARB 11, the Board

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outlined appropriate standards for relative parity of voting power, determining that the

target variance for relative parity should be 10%, provided community of interest

issues are generally satisfied. These standards have been applied by municipalities

across the province since 2004.

[121] The Board is mindful that CBRM Council, staff, or consultants will now

face the challenge of drawing polling district boundaries that meet the standards

outlined by the Board. As noted in the hearing, CBRM has a large geographic size

containing urban and rural components. In conducting this exercise, CBRM should note

that, in exceptional cases, the Board has allowed variances up to and over 25%,

where large geographic areas and communities of interest justify the departure from the

standard which normally applies. The Board considers that such higher variances may

apply in a few of the polling districts to be drawn in this proceeding, such as large

sparsely populated rural areas. It should be noted that the more the variance exceeds

100/0 the greater and more detailed the justification the Board will expect.

VI CONCLUSION

[122] The Board sets the number of councillors and polling districts at 12 (plus

the Mayor). The boundaries will be reviewed at a later hearing after they have been

prepared by CBRM.

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[123] An Order will issue accordingly.

DATED at Halifax, Nova Scotia, this 18 th day of July, 2011.

Roland A. Deveau

Documents

CBRM Decision