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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON March 13, 2002

Revisiting the Brome Lake Commission of Inquiry


Few Town of Brome Lake residents are likely to forget the much despised $450,000 "brutality" tax that was levied against their properties back in the summer of 1998. Aside from being a tax that could have been avoided, it led to the creation of a highly unusual commission of inquiry that even today raises more questions than answers.

The unexpected Supreme Court Ruling

It all began shortly after the Supreme Court ordered the Town of Brome Lake in 1998 to pay David Allen Gauthier the sum of $700,000. The award, which included exemplary damages and 18 years of interest, was the final chapter to the viscous beating he had endured at the hands of two police officers in 1982. By holding the TBL liable, the Supreme Court delivered a stern warning to each and every municipality employing police officers: either exercise sufficient control over the conduct of your police or pay the consequences.

To say that the residents of Brome Lake were surprised by the Supreme Court ruling is an understatement. Both the Superior Court and Quebec court of Appeal had concluded, first in 1992 and then in 1995, that David Allen Gauthier had waited too long to sue In reversing the lower court, the Supreme Court ruled that Gauthier's severe post-traumatic stress had the effect of suspending the six-month legal prescription. Faced with an order from the highest court in the land and with little time to spare, on Aug. 3, 1998 the town council voted, 4 to 1, in favor of the one-time property tax, with the difference to be paid out of service cuts.

Residents in for another surprise

Not only were many of the residents furious because of the tax, they were about to learn that "lack of sufficient control" went beyond police control. They'd been hearing allegations that their town had been insured against the events that gave rise to Gauthier's lawsuit. But there was more. They learned through their local newspapers that several seemingly well- informed citizens were demanding to know why the I988 municipal administration had never referred his lawsuit to the town's insurers.

It is important to note that with all such policies, every insured is obliged to give proper notice and allow the insurer to assume the responsibility for the defense and/or settlement. Of course, by the time the Supreme Court ruled in Gauthier's favor, it was far too late - ten years had already elapsed since the writ had been served and at no time had the insurance company ever participated in the court case.

Councilors demand access to Town file

In the wake of the protests and allegations, several councilors decided to review the facts surrounding Gauthier's lawsuit. However, to do so they required access to the town file together with a legal opinion on whether the omission in submitting the insurance claim opened the door to an action in damages against any person for negligence. When the town clerk turned down a councilor's request for a series of documents, which included the legal opinion, the councilor responded with a petition in virtue of the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information.

Town clerk turns down

Councilor's petition

The line of communication went from bad to worse when on April 17, 1999 the town clerk ruled that the access to information act did not allow her to divulge a copy of the legal opinion. The decision ignited further protests while provoking increased media attention. The implications were numerous. Duly elected councilors appeared to be assigned third party status vis a vis the very municipality they were representing. Moreover, it looked as if they were being prevented from obtaining access to a document that they required in the exercise of their municipal duties. If the client were the town, couldn't the council renounce to the attorney -client privilege? Why all the fuss...

Meanwhile one councilor wondered out loud what all the fuss was about considering that the much talked- about legal opinion had previously been read to the councilors and apparently concluded that there was no available recourse. The statement only raised more questions. If it were true that the contents of the opinion were divulged in such a manner -how could it have been labeled a confidential document? As for those who had insisted on receiving a copy, they stood their ground claiming that it was their right to study the town's file in depth and that included the legal opinion.

Council responds with inquiry mandate

If for some observers the conflict had all the appearances of a chess match, the frustrated councilors were still far from a checkmate. Rather than appeal the decision to the Access to information Commission, the town council invoked article 69 of the Cities and Towns Act which allows for the creation of a special committee when " questions of fact arise before the council ...in which the interests of the municipality require do be investigated..." Consequently, on May 3,1999 a motion was passed, by a vote of 4 to 1, calling for the formation of a committee made up of three councilors, whose role would be to inquire into the Gauthier affair. Their 4-paragraph mandate provided that the committee members were to be given access to the Town's entire file regarding the lawsuit, including any and all legal opinions. The key paragraph of their mandate instructed them to submit a written report to the council, which would include recommendations as to possible "claims against anyone who would have caused prejudice to the property owners due to negligence, omissions or other causes".

In practical terms this meant that they would have to determine within only 30 days if the town's insurers were ever duly notified of Gauthier's lawsuit and, if not, why not and finally whether the town, in this respect, had any legal recourse against anyone who had failed in his or her duties.

Insurance coverage was never an issue

If there were any doubt that the insurance policy covered the events that gave rise to the lawsuit it was never expressed in the inquiry mandate. There was never any question of having to determine whether the insurance policy protected the town against the conduct of its two rogue police officers.

Mayor attempts to veto inquiry

To everyone's astonishment, on May 13, just 10 days after the mandate resolution had passed, the TBL inquiry faced a life threatening challenge. The mayor, who by law was also a member ex officio of their committee, called for a special meeting and tried to veto the inquiry resolution. However, when it was pointed out by one of the many incensed residents that he had failed to respect the proper notification delays, the veto motion was withdrawn and the committee was given the go ahead. Next week: Part 11: Not like any commission of inquiry