Abstentions at Vancouver City Council: Follow-up

In this blog post, I share some ad­di­tion­al de­tails about the ab­sten­tions I men­tion in my op-ed that ap­peared in the Vancouver Sun on July 21, 2021. In that piece, I ar­gued that “[s]ince an ab­sten­tion is a vote in favour, when a coun­cil­lor can­not in good con­science vote in favour of a mo­tion, they should vote in op­po­si­tion.”

I also said that “I identified 14 mo­tions heard by this coun­cil that would not have passed had the ab­sten­tions not count­ed in favour.”

This post pro­vides a slight cor­rec­tion (there were only thir­teen, not four­teen) and shows you the specific mo­tions and their effects. They span the gamut from very mi­nor word­ing changes, to sub­stan­tive amend­ments to mo­tions, giv­ing di­rec­tions to staff on a va­ri­ety of mat­ters, and waiv­ing pre­sen­ta­tions from staff.

Many of the mo­tions in which an ab­sten­tion made a difference to the vote were mo­tions to amend a high­er-lev­el mo­tion. The word­ing of the amend­ment of­ten (but not al­ways) end­ed up in the ul­ti­mate mo­tion that was car­ried.

To be clear, the ar­gu­ment in my op-ed would be un­changed even if I dis­cov­ered no mo­tions in which an ab­sten­tion tipped the scales. But it is in­ter­est­ing to see the mo­tions where ab­sten­tions made a difference to the vote. I also hope this might fa­mil­iar­ize peo­ple with the Open Data Portal and Council min­utes.

Correction

First though: the cor­rec­tion. The Open Data Portal re­port­ed that vote 4072 was a mo­tion that car­ried, de­spite hav­ing more votes in op­po­si­tion than ex­plic­it­ly in favour. My pre­vi­ous­ly analy­sis count­ed this as a mo­tion in which the ab­sten­tion made a difference to the vote.

However, the min­utes for that vote (see p. 12) clear­ly show this to be a mo­tion that lost. The ab­sten­tion did not make a difference.

I have sent an email to the Open Data Portal main­tain­ers and they are in the process of cor­rect­ing the en­try.

The thirteen motions

Here, I link to and de­scribe the thir­teen mo­tions in which an ab­sten­tion made a difference to the out­come of a vote. Again, this is just for in­ter­est and com­plete­ness.

Vote 4096 (Minutes)

This re­lat­ed to an emer­gency in­ter­im zon­ing pol­i­cy for Broadway Corridor to UBC. Vote 4096 was on a mo­tion to amend. It changed the text of the ul­ti­mate mo­tion. Instead of di­rect­ing “staff to ex­tend the Broadway Plan in­ter­im re­zon­ing pol­i­cy,” the mo­tion changed the word­ing to di­rect staff to “ex­plore the im­pli­ca­tions of ex­tend­ing” it. This word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 4112 (Minutes)

This re­lat­ed to the same emer­gency in­ter­im zon­ing pol­i­cy just dis­cussed. Vote 4112 was on an­oth­er mo­tion to amend. It added some text to the ul­ti­mate mo­tion that di­rect­ed staff to “con­sid­er Affordable Home Ownership specifically in part­ner­ships with BC Housing Affordable Home Ownership pro­gram...”. This word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 4430 (Minutes)

This re­lat­ed to the False Creek to Fraser River Blueways. Vote 4430 was on a mo­tion to amend. It changed the word­ing that asked the Park Board to vote. The word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 4433 (Minutes)

This re­lat­ed to the same False Creek to Fraser River Blueways mo­tion just dis­cussed. Vote 4433 was on a mo­tion to amend. It changed the word­ing that asked the Park Board to vote. The word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 5035 (Minutes)

This was a mo­tion at the Standing Committee of Council on Policy and Strategic Priorities. They were rec­om­mend­ing changes to the Procedure By-law. Vote 5035 was a vote on a mo­tion to set the time lim­it for “rep­re­sen­ta­tive speak­ers” to five min­utes. This lim­it made into the word­ing that would ul­ti­mate­ly car­ry and be rec­om­mend­ed to coun­cil.

Vote 5642 (Minutes)

This re­lat­ed to a mo­tion on sup­port­ing gen­der eq­ui­ty and di­ver­si­ty in Vancouver City Council. Vote 5642 was a mo­tion to amend. It changed the word­ing to “sup­port the vol­un­teer re­port­ing of” di­ver­si­ty. But this was un­done in vote 5645 be­cause it didn’t fit gra­mat­i­cal­ly or log­i­cal­ly with the rest of the mo­tion’s text.

Vote 5790 (Minutes)

This re­lat­ed to a mo­tion about COVID-19 pan­dem­ic im­pacts. Vote 5790 was a mo­tion to amend. It added di­rec­tion to staff to “con­sid­er specific pay park­ing ex­emp­tions for es­sen­tial and health care work­ers...”. This word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 5904 (Minutes)

This re­lat­ed to a mo­tion fol­low­ing a pre­sen­ta­tion from staff on COVID-19 pan­dem­ic im­pacts. Vote 5904 was a mo­tion to amend. It added di­rec­tion to staff to “de­vel­op a de­ci­sion mak­ing frame­work for pri­or­i­tiz­ing op­er­at­ing bud­get re­duc­tions...”. This word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 6068 (Minutes)

Vote 6068 was on a re­fer­ral mo­tion. It re­ferred the mo­tion en­ti­tled “Short Term Landlords—Long Term Protections for Renters and Hotels” (which was about AirBNB-type ac­co­mo­da­tions) to staff.

Vote 6520 (Minutes)

This re­lat­ed to sched­ul­ing. Vote 6520 was a mo­tion to amend. It added word­ing to di­rect staff to not sched­ule pub­lic hear­ings in 2021 ear­li­er than 6pm, Mondays through Thursday and that pub­lic hear­ings should be even­ly dis­trib­uted month to month. This word­ing made it into the ul­ti­mate mo­tion that car­ried.

Vote 6852 (Minutes)

This re­lat­ed to a staff pre­sen­ta­tion about a re­zon­ing. Vote 6852 was on a mo­tion to waive the staff pre­sen­ta­tion. It car­ried, but was im­me­di­ate­ly re­con­sid­ered in vote 6854 and lost that time, the ab­stain­ers from vote 6852 hav­ing switched their votes to votes in op­po­si­tion. The staff pre­sen­ta­tion was heard.

Vote 6883 (Minutes)

This re­lat­ed to a re­zon­ing ap­pli­ca­tion. Vote 6883 was on a mo­tion to amend an amend­ment. It changed the amend­ment to try to add word­ing to re­quest a le­gal opin­ion about the lan­guage used in some zon­ing guide­lines. Vote 6883 car­ried and thus suc­cess­ful­ly amend­ed the amend­ment. But the amend­ment it­self lost and so this word­ing did not end up into the ul­ti­mate mo­tion that car­ried.

Vote 7435 (Minutes)

This re­lat­ed to elec­tric kick-scoot­ers. Vote 7435 was on a mo­tion to amend. It added some word­ing to ex­clude the ap­pli­ca­tion of a part of a by-law. This amend­ment car­ried, but was im­me­di­ate­ly re­con­sid­ered and then ruled out of or­der be­cause it was too sim­i­lar to some­thing pro­posed with­in the pre­vi­ous 365 days. So, the word­ing as­so­ci­at­ed with vote 7435 did not end up in the ul­ti­mate mo­tion that car­ried.

History and context of the abstention rule [di­rect link]

I’m also in­ter­est­ed in un­der­stand­ing the his­to­ry and con­text of the ab­sten­tion rule. As best as I can tell, it was added to the Municipal Act in 1957 and to the Vancouver Charter in 1993. Variants of the rule have also been part of Vancouver’s Procedure By-law since 1887.While I don’t promise that what follows shows the absolute earliest uses of this rule, I want to share the earliest appearances that I have been able to find of this rule in the Municipal Act (generally does not apply to Vancouver) and Vancouver Charter (applies only in Vancouver), as well as in Vancouver’s own Procedure By-laws. The Municipal Act evolved into today’s Local Government Act and the Community Charter.

The ear­li­est provin­cial leg­is­la­tion in which I have been able to lo­cate this rule is Section 164 of the 1957 Municipal Act.Municipal Act, SBC 1957, c 42. I have tried to rule out the possibility that it was around before 1957. I looked at the text of the 1948 Municipal Clauses Act. It was a revision/consolidation of many of the clauses applying to the workings of municipalities. It contained a clause that is much the same as the eventual 164(1) in the 1957 Act but did not contain anything like 164(2). I then examined all amendments to the Municipal Clauses Act between 1948 and 1957 and could not find that the abstention rule was introduced prior to 1957. I have not done the work necessary to be sure that the abstention rule was not part of some other Act that I just haven’t thought to look in.

The ab­sten­tion rule was not added to the Vancouver Charter then. The rule has lived on in var­i­ous places in the Municipal Act (and now in the Local Government Act and Community Charter) since 1957. But its first ap­pear­ance in the Vancouver Charter seems to be in 1993, through the Local Elections Reform Act.Local Elections Reform Act, SBC 1993, c 54, s 62. The Act was large­ly fo­cused on up­dat­ing pro­ce­dures for mu­nic­i­pal elec­tions, but it also hap­pened to make some gen­er­al amend­ments to the Vancouver Charter. One of those amend­ments was the in­tro­duc­tion of the ab­sten­tion rule.

When this bill went through the leg­is­la­ture, the dis­cus­sion cen­tered on the elec­toral as­pects of the bill. The bill’s spon­sor, Robin Blencoe, said that the bill was a prod­uct of “ma­jor con­sul­ta­tion with lo­cal gov­ern­ment and con­cerned cit­i­zens.”

In com­mit­tee, when dis­cussing the sec­tion of the bill (sec­tion 62) that in­tro­duced the ab­sten­tion rule, mem­bers were fo­cused on oth­er as­pects of that sec­tion (e.g. quo­rum, abil­i­ty to in­crease coun­cil size, the ward sys­tem) and did not men­tion any­thing about the ab­sten­tion rule. Reading be­tween the lines of that dis­cus­sion, and giv­en that the rule would repli­cate what was al­ready part of Vancouver’s Procedure By-laws at the time, it seems Vancouver was con­sult­ed close­ly on the con­tent of the amend­ments.

I con­sid­ered the pos­si­bil­i­ty that the Vancouver Charter in­cor­po­rat­ed by ref­er­ence the rule from the Municipal Act. But the Vancouver Charter has been very se­lec­tive about which por­tions of the Municipal Act it in­cor­po­rates by ref­er­ence and as far as I can tell, did not in­cor­po­rate the ab­sten­tion rule by ref­er­ence.See Vancouver Charter, SBC 1953, c 55, s 578 (as consolidated for convenience in 1979). It listed several specific sections of the Municipal Act that applied to Vancouver and said those and only those sections of the Municipal Act applied to Vancouver. The abstention rule was not one of those sections.

However, long be­fore provin­cial leg­is­la­tion dic­tat­ed the ab­sten­tion rule for Vancouver in 1993, Vancouver had es­tab­lished its own ab­sten­tion rule as part of its Procedure By-laws. The very first Procedure By-law, passed in 1887, said:

Every mem­ber who should be present in the Council Chamber when a ques­tion is put shall vote there­on, un­less the Council shall ex­cuse him, or un­less he be per­son­al­ly in­ter­est­ed in the ques­tion, pro­vid­ed such in­ter­est is re­solv­able into a per­son­al pe­cu­niary profit or such as is pe­cu­liar to that mem­ber, and not in com­mon with the in­ter­ests of the cit­i­zens at-large, and in such case he shall not vote.City of Vancouver, by-law no 32, Procedure By-law (5 December 1887), s 16.

The Procedure By-law passed in 1905 says rough­ly the same thing. The rule was that “[e]very mem­ber present at a Council meet­ing when a ques­tion is put shall vote there­on un­less the Council shall ex­cuse him or un­less he is pro­hib­it­ed by law from vot­ing on such ques­tion.”City of Vancouver, by-law no 516, Procedure By-law (2 October 1905), s 16. The by-law did not say what would hap­pen if a coun­cil­lor in­sist­ed in not vot­ing. This did not change un­til 1912, when a new Procedure By-law was passed. It said “if any mem­ber per­sists in re­fus­ing to vote for oth­er than the rea­sons here­in­be­fore stat­ed, he shall be record­ed as vot­ing in the neg­a­tive on the ques­tion be­fore Council.”City of Vancouver, by-law no 960, Procedure By-law (21 October 1912), s 16. I want to know what councillor’s obstinance forced them to clarify this rule!

This was the ab­sten­tion rule un­til 1973, when Council re­placed “neg­a­tive” with “affirmative.”City of Vancouver, by-law no 4705, A By-law to amend By-law No. 3792, be­ing the Procedure By-law (19 June 1973), s 5(b).

The ab­sten­tion rule re­mained part of the Procedure By-laws un­til 2002. By 2002, the ab­sten­tion rule in the Procedure By-law had been made re­dun­dant be­cause it was pre­scribed by provin­cial leg­is­la­tion. So, it was not re­newed as part of the 2002 Procedure By-law.City of Vancouver, by-law no 8554, Procedure By-law (8 October 2002).

For a com­par­a­tive look across the bor­der, Washington pub­lish­es a Mayor & Councilmember Handbook.Association of Washington Cities and Muncipal Research & Services Center of Washington, Mayor & Councilmember Handbook (Olympia, 2019). In Washington, state law does not spec­i­fy how each mu­nic­i­pal­i­ty must treat ab­sten­tions. It is open to each mu­nic­i­pal­i­ty in Washington to de­cide how to treat ab­sten­tions. The hand­book gives ex­am­ple text for a rule that mu­nic­i­pal­i­ties can use to treat ab­sten­tions as affirmative votes. It also pro­vides one pos­si­ble justification for such a rule: “If a city does not have a rule, ab­sten­tions by one or more coun­cilmem­bers may make it im­pos­si­ble for final ac­tion to be tak­en on a mat­ter, par­tic­u­lar­ly where a ma­jor­i­ty vote of the full coun­cil is need­ed.”Ibid at 43.

In Alberta, the rule is that “[a] coun­cil­lor at­tend­ing a coun­cil meet­ing must vote on a mat­ter put to a vote at the meet­ing un­less the coun­cil­lor is re­quired or per­mit­ted to ab­stain from vot­ing un­der this or any oth­er en­act­ment.”Municipal Government Act, RSA 2000, c M-26, s 183. A coun­cil­lor in Alberta is re­quired to ab­stain when they have a conflict of in­ter­estIbid, s 172. British Columbia makes a different distinction in terminology and does not lump abstentions together with declarations of conflict. or when they are ab­sent for the en­tire pub­lic hear­ing on a mat­ter.Ibid, s 184. A coun­cil­lor is per­mit­ted to ab­stain if they were ab­sent from a por­tion of a pub­lic hear­ing on a mat­ter.Ibid, s 184. If a coun­cil­lor does not vote on a mat­ter when they are nei­ther re­quired nor per­mit­ted to ab­stain, that disqualifies the coun­cil­lor from coun­cil al­to­geth­er.See ibid, s 174(f): “A councillor is disqualified from council if... the councillor does not vote on a matter at a council meeting at which the councillor is present, unless the councillor is required or is permitted to abstain from voting under this or any other enactment. That’s much harsh­er than the rule in BC. In BC, ab­sten­tions are deemed affirmative votes. In AB, ab­stain­ing when you are re­quired to vote gets you kicked off coun­cil!

In Saskatchewan, if a coun­cil­lor who is not re­quired to ab­stain ab­stains, their vote is deemed a neg­a­tive vote. In Manitoba, I can­not find any rule gov­ern­ing this sce­nario in provin­cial leg­is­la­tion or the Winnipeg Procedure By-law. In Ontario, non-votes are deemed neg­a­tive votes. In Quebec, every coun­cil­lor is “bound to vote, un­der penal­ty of a fine of $10.” In Nova Scotia, fail­ure or re­fusal to vote is deemed a neg­a­tive vote. In Prince Edward Island, fail­ure or re­fusal to vote is deemed a vote in favour. In New Brunswick, there is no provin­cial leg­isla­tive di­rec­tion, but Fredericton and St. John Procedure By-laws both deem non-votes to be affirmative votes. In Newfoundland and Labrador, ab­sten­tions are pro­hib­it­ed un­less per­mit­ted by ma­jor­i­ty vote of the oth­er coun­cil­lors.

Almost uni­ver­sal­ly, in mu­nic­i­pal coun­cils in Canada, it is not pos­si­ble to avoid cast­ing a vote in one di­rec­tion or the oth­er (oth­er than when in a conflict of in­ter­est).

In sum­ma­ry, this rule has been pre­scribed by provin­cial leg­is­la­tion for at least twen­ty-eight years in Vancouver and six­ty-four years in British Columbia. And as a Procedure By-law, it has ex­ist­ed in var­i­ous forms since Vancouver’s first Procedure By-law in 1887 (first, mere­ly man­dat­ing that each coun­cil­lor vote; then, deem­ing non-votes to be neg­a­tive votes; then, deem­ing non-votes to be affirmative votes).