Dartmouth councillor Gloria McCluskey instigated a “gross violation” of Richard Doucette’s “right to procedural fairness,” ruled Supreme Court Justice Gerald Moir last week. Moir was hearing an appeal of a bylaw infraction citation issued to Doucette related to his house at 92 Crichton Avenue in Dartmouth.
And there’s no question about it: McCluskey did in fact act improperly. But the case raises interesting questions about how the city goes about enforcing bylaws and what role city councillors play in the process.
Richard Doucette and his wife bought the one-storey bungalow at 92 Crichton Avenue in 2005. Beginning in 2008 the couple began a series of renovations, both interior and exterior. According to court records, between 2007 and 2014 there were seven different investigations of possible bylaw infractions at the property. One was related to an animal and was dismissed. The six others were related to the dangerous and unsightly premises bylaw.
Richard Doucette is an architect. According to the court record, he was undertaking to enlarge the house, one step at a time, doing the work himself, meaning that he held the building permit and hired the subcontractors directly. He finished a first floor renovation, then start adding a second storey, which by my assessment looks like a third storey on the rear of the property, with an extensive balcony overlooking the lake. A related project was putting new cladding on the house. All the work was duly permitted.
Defining “unsightly” is necessarily subjective. I live in Dartmouth, and have driven past Doucette’s property hundreds of times through the years, and have long thought that it seemed that Doucette’s house has always under construction. But construction necessarily means some degree of messiness, no? Still, if you’re living next door to someone completely rebuilding their house, and it’s taking up to eight years, you might have a legitimate complaint.
Here’s what we know: before 2014, bylaw officers were sent to the property four times to check for unsightly premises compliance, and each time the visit resulted either in quick compliance by Doucette, or in no action. The court record doesn’t say which bylaw compliance checks were instigated by complaints from citizens, or which were initiated by city staff.
The court record explains how McCluskey got involved:
On September 10, 2013 Councillor Gloria McCLuskey received an email from Jim Lission raising a concern about the appearance of 92 Crichton Avenue, which provided in part:
…The reason for this contact is I contacted the city regarding the unsightly property at the subject address on July 30, 2013… When you are out and about drive past 92 Crichton Avenue and take a look…
On May 2, 2014, Councillor McCluskey again receiving an email from resident Jim Lission, providing in part:
…Almost eight months have passed since our first emails and 92 Crichton Ave is no better. It is bad enough I look at it when I drive past. It is hard to believe neighbours put up with this property. Just think how our city would look if we had two of these projects on every block and each took this long to complete…
On May 3, 2014, Councillor McCluskey contacted Jim Donovan, head of municipal compliance by email, and stated in part:
Have you seen the property at 92 Crichton Ave recently. Would you like to have this in your neighbourhood or worse still next door? This is a total disgrace and has been going on for years with nothing happening to clear up the disgraceful look of it…
This last point is important: McCluskey emailed Donovan directly, on a Saturday. Her complaint wasn’t to the city’s 311 line, but rather directly to the manager of bylaw compliance. It also wasn’t an anonymous complaint; she identified herself.
I haven’t been able to contact Jim Lission or determine where he lives. As he wrote of “driving past” 92 Crichton and expressing concern for neighbours — which doesn’t seem to include himself — I assume Lission doesn’t live in the immediate neighbourhood.
Regardless, McCluskey’s email to Donovan had its intended effect.
“Within an hour and a half of the e-mail complaint being delivered to Mr. James Donovan, ” wrote Moir in his decision, “he instructed others to investigate. He wrote, ‘I need feedback on this …’.
Two days later, on Monday, May 5, a compliance officer sent the following email to Donovan:
An officer attended today and found two men on site working, they have an active permit, the property is clean, they have material to complete the siding of the structure, the material is stacked neatly. From our position they are doing what is required of them.
Wrong answer, evidently. Another compliance officer was dispatched to the property on Thursday, May 8, and issued a notice of violation, which read:
…the dwelling is in a state of disrepair including, but not limited to the exterior cladding being deteriorated … [indecipherable word] … as in a state of disrepair such that it is unsightly in relation to neighbouring properties.
Doucette appealed the order to council’s Appeals Standing Committee, which heard the matter on July 10. The committee consisted of councillors Matt Whitman, Steve Craig, Steve Adams, Linda Mosher, Brad Johns, Bill Karsten, David Hendsbee, and, crucially, Gloria McCluskey.
That’s right: Gloria McCluskey heard an appeal of an order that came from a complaint that McCluskey herself had filed.
According to minutes of the meeting, McCluskey herself made two of the motions that collectively dismissed Doucette’s appeal and gave him 30 days to comply with the order.
Doucette then appealed to the court. Another judge dismissed his appeal.
But then Doucette learned that McCluskey had filed the original complaint. It looks like he filed a Freedom of Information request for issues related to his property, likely in May, but the bureaucracy ran so slowly that he didn’t get a response until after he had lost in court.
I’ve been by 92 Crichton Avenue twice in hopes of talking to Doucette, and have attempted to call him at two numbers I’ve been given, but to no avail, so I’m not able to give his side of the story.
Understand that city staff knew all along that McCluskey was the source of the complaint about 92 Crichton. In fact, Jim Donovan was reacting to McCluskey’s email, sending a second compliance officer to the site after the first said nothing was amiss.
And the other councillors on the Appeals Standing Committee appear to have been aware of McCluskey’s conflict. As Moir wrote:
Staff knew. Councillor McCluskey certainly knew. Perhaps other members of the appeal committee knew. Mr. Doucette did not know that the complaint had been lodged by Councillor Gloria McCluskey, who sat in judgment of her own complaint.
When Councillor McCluskey’s improper participation became known to Mr. Doucette, the municipality conceded on his judicial review proceeding. A new unsightly premises order was issued. Another appeal was made.
The municipality did not appoint new councillors to the Standing Appeal Committee. The appeal was heard on December 11, 2014 by six of the eight members who had dismissed Mr. Doucette’s appeal five months before. (Councillor McCluskey sent her regrets.)
The minutes from this second Appeals Standing Committee meeting don’t mention the conversation, but an audio recording is included in the court record, and Moir referred summarized it:
Mr. Doucette tried to say something about the way he had been treated in July. A member raised “a point of order”. The chairperson [Whitman] “asked Mr. Doucette to keep his comments focused to the current appeal case before the Standing Committee and not discuss previous appeal cases.”
The caution was for the members of the appeal committee who were going to rule on an appeal tied to the facts of the July appeal they had dismissed. There was no point of order.
Mr. Doucette had every right to refer to the impropriety of the July hearing and to challenge the December appeal committee members, who had heard and determined the July appeal, to closely examine their own consciences for bias.
It’s impossible to read this without concluding that the councillors on the committee were completely aware of McCluskey’s improper action, and made sure that no mention of it made it into the minutes.
Moir overturned the bylaw infraction issued to Doucette.
For what it’s worth, the street side of his house looks nearly finished, while the back is making progress. In my subjective opinion, the house isn’t now unsightly.
I called McCluskey and spoke with her today. I’ll try to get some of that call into this week’s podcast.
She admits that she shouldn’t have sat on the Appeals Committee hearing, but speaks with frustration about the state of Doucette’s property: “It’s been eight years!” she said.
I asked McCluskey is she has made other complaints about unsightly properties, and if she had sat in on the appeals of complaints she had called in. She said she had not.
Still, while I definitely fault McCluskey for sitting in on the Appeals hearing, isn’t raising hell with the bureaucracy exactly what citizens demand of their councillors? When your calls to 311 go unanswered, at least to your satisfaction, the next step is to call your councillor.
Is it any wonder that councillors sometimes overstep their duties?
That doesn’t excuse that behaviour, but it does explain it.