Candle Lake councillor turns to freedom of information request to access village accounts

Ongoing, years-long feud between councillors has involved information and privacy commissioner, provincial ombudsman

A Candle Lake councillor is celebrating a decision by the province’s Information and Privacy Commissioner that marks the latest salvo in an ongoing dispute between members of the village council.

In a decision by commissioner Ron Kruzeniski, dated July 30 and obtained by the Herald, a request made by Coun. Ron Cherkewich was deemed a valid request for information, despite the village’s insistence that Cherkewich use a prescribed form and provide more specific information about his request.

The commissioner, in a decision dated July 30, ruled that the village’s response indicating that the request might not be allowed under confidentiality rules indicates that the municipality does understand the request and doesn’t need more information. He also found that the request, while not on the required form, has all the information the form asks for and thus should be considered a valid request.

He recommended that the village clarifies its freedom of information policy, set up a policy for what information is provided to village councillors and that it respond to Cherkewich’s request within 30 days.

Reached by email, the village declined to comment.

 “I’m sorry but the Resort Village of Candle Lake cannot make a comment on a specific report that it hasn’t been published online as of yet or made public so I will contact the Office of the Privacy Commissioner to advise them of this breach,” Mayor Borden Wasyluk said in an email.

“Our only comments would be that once we receive any request under LAFOIP (Local Authority Freedom of Information and Protection of Privacy Act) that we process all requests in accordance with The Local Authority Freedom of Information and Protection of Privacy Act rules which govern an applicants (sic) Right of Access to documents. Therefore, all documents that are responsive to the request would be provided subject to any applicable exemption.”

The request was for all documents surrounding a payment to a lawyer, including a cheque for $7,276.99, a council resolution authorizing the engagement, the invoice and any retainer agreement connected with the payment.

He also asked for an audio recording of the May 10, 2019 council meeting.

The village said it didn’t have to provide a copy of the account as the payment hadn’t been made.

Cherkewich further asked for correspondence between staff and councillors about the payment or the account.

He alleges that he confirmed with the law office that the payment in question had been deposited on April 22, 2019.

He says the payment in question was to reimburse the legal fees of the mayor and two councillors for a judicial review Cherkewich brought forward.

That judicial review came out of a previous decision council made to suspend Cherkewich and remove him for alleged breaches of the Code of Ethics.

Several ethical complaints have been made by councillors against each other over the past few years. Dozens of complaints have been forwarded to the provincial ombudsman’s office. That office found that in most cases, the village did not undertake the proper procedure before deciding to uphold or dismiss a complaint. The office also told the village that it shouldn’t be used to mediate disputes between parties.

“The ombudsman’s role is to encourage municipalities and council members to carry out their duties fairly and reasonably in accordance with legislation,” the ombudsman’s report said. “We are not to be used to referee in-fighting or mudslinging among political rivals, or to take over a council’s responsibilities when it either decides it cannot or, for whatever reason, it will not carry out its duties.”

Cherkewich won the judicial review and was reinstated to council. A decision is pending in a third judicial review regarding what Cherkewich says is a concerted effort to keep him from viewing public documents he needs to see as part of his elected role as councillor.

In that second judicial review, according to Cherkewich, the resort village lawyer told the other councillors implicated that they would have to get their own legal counsel, as the lawyer couldn’t act on their behalf and on behalf of the village.

Chekewich, who is a lawyer specializing in municipal affairs himself, alleged that the three other members of council received a bill for about $7,200 issued to all three of them.

“Unbeknownst to anyone on the council the account was paid in April the same day it was received, using a (village) cheque,” Cherkewich alleged while speaking to the Herald last week.

That cheque, he said, was never approved by council, and the payment itself didn’t come before councillors until Cherkewich says he forced the issue in May when it came up as part of accounts payable.

“I phoned the (law) office and they said the bill was paid April 22. We shouldn’t be paying this account and we shouldn’t be paying it twice.”

Despite it being issued last year, Cherkewich says he’s never seen the cheque itself.

He believes, like many cheques, it would have been signed by two parties, including the mayor himself.

That would mean the mayor would have paid his own legal fees with a village cheque without a council resolution authorizing it.

Cherkewich’s allegations haven’t been tested by any judicial or quasi-judicial body.

Cherkewich compares the actions to those of the RM of Sherwood No. 159.

In that case from the mid-2010s, several councillors who were being questioned as part of a municipal inspection inquiry were advised they needed their own counsel, as the RM’s lawyer couldn’t represent them.

They got a lawyer, but then drafted a bylaw providing reimbursement for their own legal expenses.

A group of ratepayers challenged that bylaw in court. They won.

It was ruled that the councillors could not be reimbursed for these legal fees, as they were outside what was allowed under the Municipalities Act.

In Cherkewich’s opinion, this situation, though it was a judicial review of a decision and not a municipal inspection, is no different.

Cherkewich says that if his allegations prove to be founded, Mayor Wasyluk will be barred from running for office for several years because he signed a cheque to pay his personal legal bill out of ratepayer money.

But Cherkewich says to prove it, he needs the paper trail. He insists he’s being stonewalled by other members of the five-person village council. And has to instead rely on filing a freedom of information request.

“This access to information thing was trying to get to the core of that. They wouldn’t give me the document,” he said, adding that he believes the mayor has something to hide.

The councillors involved “have every reason in the world to suppress this,” Cherkewich said, also accusing the village administrator with complicity.

(Cherkewich also has a history of disputes with the administrator — an Occupational Health and Safety investigation found that his previous actions towards her rose to the level of harassment)

“I’m a councillor,” he said.

“How silly is it to say that a councillor whose under a statutory duty to ensure the financial integrity of a village can’t look and validate the accounts payable. That’s what my job is, to make sure if there’s an invoice there that it’s a legitimate invoice.”

He said he knows what the answer to all of his questions are, but that he wants proof.

“They keep me from getting to the bottom of things. They’ve tried suspending me. They suspended me three times and wouldn’t give me any documents. (Justices) wrapped their fingers. It’s been a real turbulent situation.”

Despite previous allegations that he only has an axe to grind, Cherkewich denied taking any of these actions for personal reasons or for his own gain.

“I have no personal interest in any of the questions I’m asking,” he said.

“I’m duty-bound to look after the ratepayers and took an oath of office to the ratepayers to make sure they weren’t abused financially. That’s why I’ve gone through this long paper trail.”

Four of the village’s five councillors, including both Wasyluk and Cherkewich, are up for re-election this fall.

The village has since sent a lengthy response to this story, published separately, responding to Cherkewich’s allegations.

The history

The suspensions came out of charges of ethics violations issued against Cherkewich alleging that he violated confidentiality by revealing personal information and in-camera details to people who weren’t privy to that information. He has also been accused of accessing private documents to advance his wife’s appeal to the Saskatchewan Municipal Board.

The municipality, though, doesn’t have the means to remove an elected councillor. Only the province can do that.

In the 2019 ombudsman report, the onus on reviewing and trying those allegations was placed on the village. Due process — such as investigating the allegations, finding information about them, giving Cherkewich notice of the intent to discipline him and giving him a chance to respond, was not followed, the ombudsman said.

In that report, the ombudsman said that several of the ethical complaints hadn’t been appropriately addressed, and suggested that council work to resolve the issues themselves, involving an independent third party if necessary.

That third party might be necessary, and a resolution has since passed to have outstanding ethics complaints resolved this way.

Two of the many ethics complaints are the result of allegations made by Cherkewich that the mayor and administrator have been involved in secret deals with Coun. Patricia Matkowski. Ethics complaints against Mayor Wasyluk and against Cherkewich himself came out of those allegations.

Matkowski has provided janitorial services for the village for at least ten years. She was elected to council while still providing these services, and her contract expired.

The contract was renewed without it going out to public tender. The mayor authorized this as he, and at least one other councillor believed the contract had a valid renewal clause in it.

However, Cherkewich believed the contract violated the village’s purchasing policy. He sent a strongly-worded email to his fellow councillors attacking the decision and the administrator’s role in it, as the administrator and Matkowski have known each other for a long time, and at one point. The administrator also subcontracted to Matkowski before taking on her current position prior to Matkowski’s election.

After not getting an answer to his satisfaction, Cherkewich sent an email to the village’s ratepayers.

That email, implicating the mayor, deputy mayor, administrator and Matkowski, was written in a way the Ombudsman said “alienated” Cherkewich from council. The next day, a majority voted that Cherkewich be suspended.

The 2019 ombudsman’s report recommended that the contract should have gone out to public tender, and recommended that ethics complaints made against and by Cherkewich and Mayor Wasyluk be properly investigated.

That’s one of only seven ethics complaints the ombudsman reviewed. Those seven were a selection of 27 received from the village in just three years.

“It was clear to us that these complaints were largely the result of dysfunctional relationships between council member and between once council member and Candle Lake’s administration,” the ombudsman’s office wrote.

Appropriate procedures were not followed in any of the seven allegations reviewed by the ombudsman’s office.

The other complaint referenced allegations of harassment levelled at Cherkewich. A 2018 report completed following an Occupational Health and Safety complaint concluded that Cherkewich’s behaviour “rose to the level of harassment” on five occasions. The report made no recommendations and didn’t specify whether the harassment was actionable.

That finding was quoted in the ombudsman’s report. In that same report, the ombudsman said council has not made any decisions at a public council meeting regarding that report.

That report wasn’t received and filed by council, Cherkewich said. Instead, the village hired its lawyer to look into those same allegations detailed by the report. After two years, the lawyer who investigated — including interviewing staff — recommended closing the file with no case for harassment.

Council received and filed that report in May 2020.

Cherkewich said a ruling by Chief Justice Popescul found ombudsman’s reports rely on untested evidence. Evidence before a court, however, such as that at a judicial review, is weighed and tested in a way the ombudsman’s report isn’t.

In the judicial review decision, Justice Acton wrote that the court found “no evidence before it that (Cherkewich), in conducting himself in his duties as a member of council, did not have clean hands or that his actions disqualify him from making an application for judicial review.”

Cherkewich said that code of ethics complaints and allegations of breach of privacy against him have all been dismissed either by the Information and Privacy Commissioner or by the courts. Complaints issued against Wasyluk and two other councillors , he said, have been left outstanding.

— This story has been updated to reflect further information received from both Cherkewich and the Resort Village of Candle Lake since originally publishing.