I would like to thank Nick Davies for his professional maturity and responsibility, in ringing the alarm bell on council's appalling actions towards Alluradirect.com this past week. Davies' concern is well-placed. It shows he is thinking with the clarity and objectivity of a good legal mind, and trying to protect the reputation and liability of Whistler in the process. We are fortunate to have him on council. Without his input, it appears that the rest of council would have continued to act like a pack of wild dogs on the hunt, oblivious or indifferent to its legal responsibilities to act in an unbiased and fair manner. Davies is the only one who is looking at the bigger picture, in terms of the legal implications of council's conduct in this "show cause" hearing.
Of course, if there was a legal challenge of council's decision relating to Alluradirect.com, it would not hold up to legal scrutiny. You don't have to be a lawyer to figure that one out. So why is council going through this charade?
Davies was correct in saying that the sanctions approved and imposed by council, on the recommendation of Bill Barratt, would not comply with the law as required by the Canadian Charter of Rights and Freedoms. Council's decision would not even pass muster under provincial legislation and related court decision precedents, dealing with the laws governing proper conduct of quasi-judicial bodies, eg. municipal governments, boards, tribunals, etc. There is always a high risk that when non-legally trained people, eg. elected representatives or employees, "sit in judgement" of others, and impose sanctions that have a serious impact on the person or company concerned, serious abuse of the defendant's civil and legal rights could occur. If it could be shown that the process was flawed, the decision of council could be easily overturned, especially based on last week's council decision on Alluradirect.com. In that scenario, Whistler could be accountable and liable in law, to compensate the party who suffered the injustice. This could result in massive financial losses to Whistler, the amount depending on the circumstances. It could also result in a massive loss of Whistler's reputation. Considering that this "show cause" hearing was the first for Whistler, it was not a positive or encouraging example of how Whistler is dealing with its moral and legal responsibilities to the community, and those who support the community.
In last week's hearing, it was the case of the horse before the cart, as Whistler failed to follow common sense by getting a written legal opinion in advance. This legal opinion should be requested by council, and received and reviewed by council. Davies should have input on the content of the questions to be asked of Whistler's legal counsel, as a civil servant would not ask the right questions, the tough questions, or enough questions. The taxpayers' elected council has the mandate to make responsible decisions and be accountable for them. It is irresponsible to delegate that quasi-judicial review and decision-making to an employee of city hall.
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