By Trevor Busch
Despite the potential for legal challenge, the Town of Taber is pushing forward with a residency requirement for senior management.
At their April 10 regular meeting, town council voted 6-1 to instruct administration to proceed with developing a policy with regard to senior management living within the town of Taber, and/or within a certain response time for attending emergency situations. Coun. Laura Ross-Giroux opposed the motion.
In early 2017, town council had directed administration to look into developing a residency policy for management, and administration sought legal advice on the potential implications of such a policy. In a legal brief prepared for the town by Megan Van Huizen of Brownlee LLP, various legal risks to the development of a broadly-applied hiring policy for management were detailed.
Applicable statutory provisions cited in the brief included Sec. 7 of the Charter of Rights and Freedoms, designed to protect the liberty of individuals from being infringed on by government actions or actors: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
It was also noted that it “has long been accepted that the Charter applies to municipalities’ actions and policies.”
“Unfortunately, they’ve (Brownlee LLP) indicated to us that is not something they’re comfortable doing, is a policy in that regard, because of the Charter of Rights and Freedoms,” said CAO Cory Armfelt. “So really presenting the facts to council, we can continue to work on this in-house to create our own policy, council could let this rest for a while, or we could find another legal team that could assist us in that regard.”
In the analysis of the Charter implications such a hiring policy could entail, Brownlee LLP cited the 1997 Supreme Court of Canada decision in the case of Godbout v. Longueil, in which an employee was required to sign a declaration stating they would live in a city for the duration of their employment, in accordance with the city’s residency resolution.
According to Brownlee LLP’s brief, all nine judges found the requirement violated the Quebec Charter, while three considered the impact of the Charter (national). Of those three, La Forest J. found that a residency requirement attached to employment infringed on an individual’s liberty rights.
La Forest J.’s arguments did acknowledge that a residency requirement could be justified for positions of essential public importance that require proximity, such as police officers, firefighters, or ambulance personnel, but dismissed arguments regarding a desire for community familiarity for employees, or the economic benefit to the community of requiring employees to reside in the municipality, as an invalid justification for violating an employee’s constitutional rights.
“I know unfortunately it’s a reality that you can live where you want,” said Mayor Henk DeVlieger. “We get a lot of comments about why do so many people live in other communities. That’s a question we get quite often from citizens. Obviously we encourage people that work for the Town of Taber that they also put their heart and soul in the Town of Taber and would like to live here, and participate in community events, coaching, there’s a lot to it.”
The positions provided to Brownlee LLP for consideration were the director of planning and economic development, director of recreation, director of engineering and public works, director of finance, and the fire chief. In written follow up to the original legal brief, Brownlee LLP remained unequivocal that a residency requirement will likely be subject to Charter scrutiny.
“Given that the issue of residency has not been expressly considered in a Charter context since the decision in Godbout, the law remains uncertain,” said Van Huizen in her written brief.
“Accordingly, it is advisable to consider whether the job can be performed effectively if the employee lives outside town boundaries. It is our view that the skills required and the responsibilities of the town’s director positions do not hinge on the employee residing within town limits. Arguably, residency within the town would enhance and inform their abilities to perform their duties. However, an employee may gain this knowledge in other ways. Frankly, I doubt anyone in the town would argue that you need to live within the town boundaries in order to effectively participate in town activities or to have a strong understanding of the town community.”
Keying in on a statement in the brief which suggested most legal precedent with regard to employee residency requirements has been inside the union-employer relationship rather than focused on management positions, Coun. Joe Strojwas interpreted this as a window of opportunity.
“It really hasn’t been dealt with from what I gather in this context in management situations, it’s more dealt with Charter cases, union-CUPE related. I think we can still proceed down this road in setting up this for 13 managers. I don’t believe that we should let this die off because Brownlee doesn’t have an interest in taking it. I know there’s other lawyers, local lawyers that would be happy to work with us in the context of developing this. It’s something that I believe we should further expand upon.”
Information on 11 different municipalities was compiled by administration, and only one, the City of Brooks, has implemented an official residency policy for management employees, and it was noted that the policy “has never been officially enforced” and acts as more of a guideline.
“I would agree with carrying on with this, and seeing what else is possible, and if it means we elect another legal firm as a result, then so be it,” said Coun. Andrew Prokop.
Coun. Jack Brewin agreed.
“I do believe that people that are in charge of emergency services need to respond quickly, as well as our CAO. Essential services should be required to live in town. And if all of the residents of Taber feel this should be a requirement, we should try to pursue it further. Future hires, perhaps we can look at a policy. You don’t want to turn someone away because they’re not going to, but I would certainly personally give preference to someone that was willing to live in the town.”
Not all councillors were on board with the idea, however, and Coun. Laura Ross-Giroux expressed serious concerns.
“I’m going to buck the trend. I don’t wish to pursue this further. I think we’ve spent enough money on legal advice already. We’re going to run into the Charter of Rights and Freedoms every time we try to do this.”
Coun. Randy Sparks objected to any suggestion of an open cheque book for legal advice with regard to crafting a policy.
“I think the only problem with all this is it’s going to come back to the Charter. And if someone doesn’t like it, they will challenge this and who knows what will happen. It seems to be such new ground that there’s not a lot of rules and regulations regarding this. There’s really only one case that they’re going back to. If council believes they want to go down this road, they need to pursue it, but I don’t believe there should be an open bank account in pursuing this.”
DeVlieger suggested any policy was unlikely to be challenged, and advocated moving forward despite potential violations of an employee’s Charter rights.
“How often would it be challenged? You can make a policy and then just wait and see, especially if we tailored one ourselves — just wait and see if someone wanted to challenge it.”
Speaking as a manager, Armfelt pointed out a strict residency policy could prove to limit the pool of professionals that might consider a Town of Taber position if they were unwilling to relocate.
“It will restrict talent. If somebody is choosing to live in Foremost, or Grassy Lake, or outside of that radius, then compelling them to move might be challenging if that’s where they grew up and live. To me, from my position as the CAO, I want all-stars, and I don’t really care where they live. I want high-performing people that come to work every day and that I don’t have to babysit. I certainly can see the political side of it.”
Ross-Giroux voiced strong reservations along these same lines, suggesting the policy would be ultimately self-defeating for the town.
“I think by developing that kind of policy, if we were to choose candidates by their place of residence, we might be opening up a can of worms. I would hate to see us passing on a higher-qualified candidate and choose one of lesser competence because of where they live. So if we develop this policy and say we’re only going to choose our employees if they live in the town of Taber, but we’ll make this exception for better candidate, then that defeats the formation of the policy. This is a really good policy until we have a really good candidate, and then we’re going to disregard policy. You can’t have it both ways.”
This concern was immediately disputed by Strojwas, who suggested candidates that don’t want to relocate to the community simply won’t apply for available positions.
“When you fill the position, you highlight in there as one of the conditions of employment, that they must move and be a resident of Taber. Therefore, you’re not going to run into that situation, because if you’re applying for a job and one of the conditions is that you must move to this community, you’re not going to apply for it. So consequently that thought process doesn’t cut it, because you won’t have to make that decision because if they don’t qualify — these are the conditions of employment — they don’t meet the criteria, so on you go.”
Firing back, Ross-Giroux pointed out the flaw in Strojwas’ argument, namely that if talented individuals might not apply for the position based on residency this could lead to the town missing out on better potential candidates.
“But then who are we missing out on then?”
Strojwas was disdainful of Ross-Giroux’s argument.
“Good question. Let’s just throw a kite in the air and see where it ends, you don’t know.”
In a final exchange in chambers, Coun. Rick Popadynetz suggested it was questionable that a manager could effectively do their job without residing in the community.
“In the private sector, you see a lot of people having to move and reside in different areas to work. It’s your job, you’re a manager of the community, you should live and work in that community. How do you manage a community that you’re not a part of? It’s your job to be in the community.”
This statement appeared to ruffle the feathers of Armfelt, who talked about his own record as the former planning director.
“I certainly think I had a successful year last year, and wasn’t a member of the community living here. Am I invested in the community? Absolutely. Did it show in my performance last year? I think so.”
Van Huizen, in her conclusions in Brownlee LLP’s legal brief, recommended against implementing a blanket residency policy for town management.
“The optics of non-residents advocating for development, tourism and job retention in the town may not be desirable, however the requirement of residency will not pass scrutiny on optics alone. Strong knowledge of the town and community could be a job requirement without imposing geographic limitations which may not withstand Charter scrutiny. If the town wishes to implement a residency policy we recommend it contemplate specific response times rather than geographical boundaries… Further, we would advise against implementing a general blanket policy, but instead suggest including the rationale for the residency requirement within each particular job description itself.”