A number of Manitoba statutes contain conflict of interest provisions, including those affecting public officials. The Acts dealing with public officials generally have two types of provisions dealing with conflict. Firstly, the Act will require those to whom the Act applies to file a list of assets with a clerk or some other official before or shortly after they assume office. Secondly, there is generally a requirement to identify a conflict of interest when it arises during the course of the official's term of office. When such a conflict is identified, the legislation normally prohibits participation by that official in decision-making and requires them to absent themselves from the discussion and vote.

There are also Acts with conflict of interest provisions for persons employed or appointed by publicly funded organizations and agencies. Typically the legislation provides that the person is to withdraw from discussion and voting on an issue in respect of which they have a conflict. Sometimes the details of the nature of the conflict must be disclosed.

Finally there are Acts which deal with protection of the public interest by recognizing the special relationship of spouses. These Acts apply to a variety of fact situations from letting livestock run wild to executing a final will and testament.

All of these legislative provisions require disclosure of conflicts arising from a person's relationship with a spouse. Some extend this rule to common-law partners, although the definition of what constitutes a common-law partner varies, generally without a minimum qualifying period of living together. Some legislation arguably extends the rule to same-sex common-law partners - but only if the terms "family" and "spouse", which are undefined, are read broadly enough to include such persons. Although during an informal consultation with the Mayor of the City of Winnipeg we understood that the City had policy guidelines which extended conflicts disclosure to same-sex partners, subsequent investigation failed to secure copies of any such policies. Therefore, while some legislation requires disclosure of common-law partnerships, it appears that there are currently no provisions in Manitoba specifically requiring disclosure of conflicts arising out of same-sex common-law partnerships.

A summary of the specific provisions of the relevant legislation in Manitoba is set out below.

Acts Pertaining to Elected Public Officials

There are three Acts which pertain to elected public officials, namely, members of the legislature, city and municipal councillors, and school trustees. These Acts contain mirror provisions as to the identification and impact of conflicts of interest, and the disclosure of assets and interests.

Legislative Assembly and Executive Council Conflict of Interest Act ⁽³¹⁾

This Act regulates conflicts for members of the Legislature, including ministers. Where a conflict arises for a member or minister, or any of their dependants, the member or minister is to disclose the "general nature" of the conflict, withdraw from any meeting dealing with the issue without voting or participating in the discussion, and refrain from attempting to influence the matter. ⁽³²⁾ The clerk is to record the disclosure, the general nature of the conflict disclosed, and the withdrawal of the member from the meeting. ⁽³³⁾

In addition, every member and minister must file a statement of assets and interests with the Clerk of the Legislative Assembly within 15 days after the beginning of each session of the Legislature. The statement contains a detailed list of assets and interests of the member or minister and his dependants. ⁽³⁴⁾ Dependant is defined to include the spouse of a member, including "a person who is not married to the member or minister but whom the member or minister represents as his spouse". ⁽³⁵⁾

Municipal Council Conflict of Interest Act ⁽³⁶⁾

This Act applies to all Mayors, Reeves and elected councillors in Manitoba including the City of Winnipeg. It provides that if a matter arises during a meeting where the councillor, or any of his dependants, has a pecuniary interest or liability, then the councillor must disclose the general nature of the pecuniary interest or liability, withdraw from the meeting without voting or participating in the discussion, and refrain from attempting to influence the matter. ⁽³⁷⁾ Dependant is defined to include the spouse of a councillor, "including a person who is not married to the councillor but whom the councillor represents as his spouse". ⁽³⁸⁾ The Clerk of the meeting must record the disclosure, the general nature of the pecuniary interest or liability disclosed, and the withdrawal of the councillor from the meeting. ⁽³⁹⁾ In addition, every councillor must file with the clerk of the municipality a statement disclosing assets and interests for himself, and for his dependants, in November of each year. ⁽⁴⁰⁾

Public Schools Act ⁽⁴¹⁾

This Act governs school divisions, and the powers, duties, and conduct of school boards, schools, and teachers in Manitoba. It provides that if a matter arises during a meeting where a trustee, or any of his dependants, has a pecuniary interest or liability, then the trustee must disclose the general nature of the pecuniary interest or liability, withdraw from the meeting without voting or participating in the discussion, and refrain from attempting to influence the matter. ⁽⁴²⁾ Dependant is defined to include the spouse of a trustee, "including a person who is not married to the trustee but whom the trustee represents as his spouse". ⁽⁴³⁾ The Clerk of the meeting must record the disclosure, the general nature of the pecuniary interest or liability disclosed, and the withdrawal of the trustee from the meeting. ⁽⁴⁴⁾ In addition, every trustee must file with the secretary-treasurer of the school division or school district a statement disclosing assets and interests for himself, and for his dependants, prior to taking office and within 30 days of acquisition or disposal of an asset or interest. ⁽⁴⁵⁾

There is a further section in The Public Schools Act dealing with conflicts which is unique to that Act. A person entitled to vote for the members of a regional committee in a Francophone School Division includes "a spouse of an entitled person who is either legally married to the entitled person or, if not legally married, has cohabited with the entitled person for a period of at least 12 months immediately before the election". ⁽⁴⁶⁾

Acts Pertaining to Persons Employed by or Appointed by Publicly Funded Agencies

There are three Acts which pertain to Persons employed or appointed by publicly funded agencies which contain mirror provisions as to conflicts of interest, namely, for board members of the Communities Economic Development Fund, the Development Corporation, and the Manitoba Public Insurance Corporation.

Communities Economic Development Fund Act ⁽⁴⁷⁾

The purpose of this Act is to create a fund to encourage economic development in Northern Manitoba, in the Manitoba fishing industry, and for aboriginal people living outside of Winnipeg. The fund is managed by a Board of directors. A director cannot vote or be present at a meeting to discuss any business "in which he or she has a significant beneficial interest through ownership of capital stock by himself or herself or members of his or her family". ⁽⁴⁸⁾ Family is not defined. Once the matter arises the member is supposed to "disclose any facts" that create the conflict and then withdraw. ⁽⁴⁹⁾

Development Corporation Act ⁽⁵⁰⁾

This Act creates a corporation which, amongst other things, provides financial assistance, including loans, to industrial enterprises and community development corporations. A director of the corporation cannot vote or be present at a meeting to discuss any business "in which he or she has a significant beneficial interest through ownership of capital stock by himself or herself or members of his or her family". ⁽⁵¹⁾ Family is not defined. Once the matter arises the member is supposed to "disclose any facts" that create the conflict and then withdraw. ⁽⁵²⁾

Manitoba Public Insurance Corporation Act ⁽⁵³⁾

This Act establishes the "no fault" system of motor vehicle accident insurance in Manitoba. It establishes a Board of directors who must absent themselves from a meeting of the board and not vote upon any matter in which they have "a significant beneficial interest through ownership of capital stock by himself or members of his family" ⁽⁵⁴⁾. Family is not defined. Once the matter arises the member is supposed to "disclose any facts" that create the conflict and then withdraw. ⁽⁵⁵⁾

There are four other Acts pertaining to conflicts in publicly funded agencies which each have their own unique conflicts rules.

Agricultural Producers' Organization Funding Act ⁽⁵⁶⁾

The purpose of this Act is to facilitate the funding of organizations that represent producers of agricultural products in Manitoba. The Act establishes an agency which determines which organizations will get this funding. A member of the agency is prevented from participating in a decision about whether an organization will receive funding if the member or his dependant has within the past six months been a member of the executive or an employee of the organization under discussion. A dependant includes a person who is residing with the member and "who is not married to the member but whom the member represents as his or her spouse". ⁽⁵⁷⁾ There is no responsibility to report the details of the conflict.

Credit Unions and Caisses Populaires Act ⁽⁵⁸⁾

This Act regulates the incorporation, powers, operating standards, membership and governance of credit unions. It provides that if a director or officer of a credit union is a party to a material contract with the credit union, or has a material interest in a contract or proposed contract between a person and the credit union, then they are deemed to have a conflict of interest. A conflict also arises when it is their spouse who has the material interest. ⁽⁵⁹⁾ Spouse is not defined. When the director or officer is in a conflict of interest, they must disclose the nature and extent of the conflict in writing to the credit union, request to have it entered in the minutes of meeting of directors, and then not participate in any vote concerning it. ⁽⁶⁰⁾

Family Farm Protection Act ⁽⁶¹⁾

The purpose of this Act is to promote and preserve the Manitoba agricultural community and particularly the tradition of locally owned and managed family farms. It establishes The Manitoba Farm Mediation Board. Board members are disqualified from hearing or participating in decision-making by the board in any matter in which the member "is related by blood or marriage to any of the parties to the matter before the board". ⁽⁶²⁾ Common-law couples are therefore not included. There is no requirement to report the details of the conflict.

Mental Health Act ⁽⁶³⁾

This Act deals with determining mental competence and assisting those who are determined incompetent. It establishes a review board to hear applications. A person's spouse may not sit as a member of the review board. ⁽⁶⁴⁾ Also, a spouse must consent to the appointment of a committee. ⁽⁶⁵⁾ Spouse is defined to include a person who "although not married to the patient, cohabited with the patient as his or her spouse for at least six months immediately before the patient's admission to the facility". ⁽⁶⁶⁾

Acts Which Protect the Public Interest

Animal Liability Act ⁽⁶⁷⁾

This Act deals with animal control and permits an action against the owner of livestock that has been permitted to run at large. The owner of the livestock can raise the defense that the livestock was at large due to an act or default of a person other than the owner himself, an employee of the owner, or "the spouse or child of the owner, who is not estranged from him or her". ⁽⁶⁸⁾ A common-law partner is not included.

Civil Service Act ⁽⁶⁹⁾

This Act deals with the selection, classification and pay of government employees. In selecting personnel, where more than one candidate is qualified for the position, preference is to be given to a war veteran or the surviving spouse of a war veteran. ⁽⁷⁰⁾ A common-law partner is not included.

Consumer Protection Act ⁽⁷¹⁾

This Act governs the purchase and sale of goods. A common-law partner is not included in its provisions. A notice specifying that goods purchased on a time sale agreement are about to be repossessed, can be delivered personally to the buyer or to his spouse. ⁽⁷²⁾ Individuals attempting to collect on a debt or repossess goods cannot:

• make harassing phone or personal calls to the debtor, his spouse or his family;
• except with leave of the court, remove any goods claimed unless the debtor, his spouse, his agent, or an adult having possession and use of the goods with the consent of the debtor is present at the time and is aware of the removal;
• give false information which may be detrimental to a debtor or his spouse; or
• make harassing phone or personal calls to determine the whereabouts of a debtor, his spouse or his family. ⁽⁷³⁾

Cooperatives Act ⁽⁷⁴⁾

This Act deals with the incorporation, powers, and governance of cooperatives in Manitoba. Board members are not permitted to participate in decisions in which they have a conflict, which is based upon whether they are an associate. Common-law partners are excluded from the definition of "associates". ⁽⁷⁵⁾ While spouses are included in the definition, the term is not defined.

Corporations Act ⁽⁷⁶⁾

This Act defines a number of circumstances where a person cannot deal with an "affiliate" without being in a conflict. A person is affiliated with a corporation where the person is an officer, employee, significant shareholder, significant borrower, an officer or employee of a significant borrower, and so on of the corporation, or the spouse of any of these people. ⁽⁷⁷⁾ Common-law partners are not included.

Department of Health Act ⁽⁷⁸⁾

This Act provides that when the government pays medical and other expenses for a person, they can seek recovery from the person's husband or wife. ⁽⁷⁹⁾ They can also file a lien against the property of a person if these services were rendered to the person or to his or her spouse. ⁽⁸⁰⁾ Common-law partners are not included.

Elderly and Infirm Person's Housing Act ⁽⁸¹⁾

In this Act there are certain rights to housing given to elderly persons which are income tested. In determining income the Act looks at the total income of the person and their cohabiting spouse. ⁽⁸²⁾ Common-law partners are not included.

Elections Act ⁽⁸³⁾

In determining residence this Act deems a person to be living at the same place as their spouse unless they have taken up and continued at a home or some other place with the intention of living there for an indefinite period, separate and apart from their spouse. ⁽⁸⁴⁾ Common-law partners are not included in these provisions.

Employment and Income Assistance Act ⁽⁸⁵⁾

There are certain means tested benefits under this Act where family income is often considered. Common-law partnerships are included but apply only to a man and a woman. ⁽⁸⁶⁾

Power of Attorneys Act ⁽⁸⁷⁾

This Act deals with the execution and effect of powers of attorney. If a donor cannot read or write, someone other that their spouse can sign for them ⁽⁸⁸⁾. In all cases, the spouse of the donor cannot witness his or her signature ⁽⁸⁹⁾. This is so that they do not exert undue influence on the donor. Spouse is defined to include "a person who is publicly represented by the donor or attorney as his or her spouse" ⁽⁹⁰⁾.

Municipal Act ⁽⁹¹⁾

This Act deals with the formation, dissolution, powers, administration, and governance of Municipalities. In the section on tax and debt collection, "a spouse or dependant family member" residing with the auctioneer, a member of council or the chief administrative officer cannot buy property offered for sale at a tax auction because they are considered to be in a conflict of interest ⁽⁹²⁾. Neither "spouse" nor "dependant family member" is defined.

Wills Act ⁽⁹³⁾

This legislation protects the public interest by ensuring that there is not undue influence upon a testator when they are deciding how to dispose of their estate.

This Act provides that if a person is a witness to a will that their spouse is benefiting under, then any provision in the will for that person's spouse is void. ⁽⁹⁴⁾ The same thing applies when a person signs a will for someone else which contains a benefit for the person's own spouse. That provision is void as well. ⁽⁹⁵⁾

Footnotes

31. The Legislative Assembly and Executive Council Conflict of Interest Act,R.S.M. 1987, c. L112.
32. Ibid, sections 4(1), 7 and 8.
33. Ibid, section 5.
34. Ibid, sections 11 and 12.
35. Ibid, section 1.
36. The Municipal Council Conflict of Interest Act, R.S.M. 1987, c. M255.
37. Ibid, section 5(1).
38. Ibid, section 1.
39. Ibid, section 6(1).
40. Ibid, sections 9 and 10.
41. The Public Schools Act, R.S.M. 1987, c. P250.
42. Ibid, section 38(1).
43. Ibid, section 36(1).
44. Ibid, section 38(4).
45. Ibid, section 39.3.
46. Ibid, section 21,36(1).
47. The Communities Economic Development Fund Act, R.S.M. 1987, c. C15.
48. Ibid, section 15(5).
49. Ibid, section 15(7).
50. The Development Corporation Act, R.S.M. 1987, c. D60.
51. Ibid, section 14(6).
52. Ibid, section 14(8).
53. The Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P215.
54. Ibid, section 2(10).
55. Ibid, section 2(12)).
56. The Agricultural Producers' Organization Funding Act, S.M. 1989-90, c. 17 - Cap. A18.
57. Ibid, section 10(1).
58. The Credit Unions and Caisses Populaires Act, S.M. 1986-87, c. 5 - Cap. C301.
59. Ibid, section 91(2).
60. Ibid, section 91(6).
61. The Family Farm Protection Act, S.M. 1986-87, C. 6 - Cap. F15.
62. Ibid, section 3(13).
63. The Mental Health Act, S.M. 1998, c. 36- chap. M110.
64. Ibid, section 49().
65. Ibid, section 72(1)(c).
66. Ibid, section 1.
67. The Animal Liability Act, S.M. 1998, c. 8 - Cap A95.
68. Ibid, section 2(3).
69. The Civil Service Act, R.S.M. 1987, c. C110.
70. Ibid, section 14(2)(d).
71. The Consumer Protection Act, R.S.M. 1987, c. C200.
72. Ibid, section 50(1).
73. Ibid, section 98.
74. The Cooperatives Act, S.M. 1998, c. 52 - Cap. C223.
75. Ibid, section 2(5).
76. The Corporations Act, R.S.M. 1987, C. C225.
77. Ibid, section 342.1(5).
78. The Department of Health Act, R.S.M. 1987, c. H20.
79. Ibid, section 7(1).
80. Ibid, section 7(3).
81. The Elderly and Inform Persons' Housing Act, R.S.M. 1987, c. E20.
82. Ibid, sections 1 and 2.
83. The Elections Act, R.S.M. 1987, c. E30.
84. Ibid, section 35(1), rule 5.
85. The Employment and Income Assistance Act, R.S.M. 1987, c. S160 - Cap. E98.
86. Ibid, section 5(5).
87. The Powers of Attorney Act, S.M. 1996, c. 62 - Cap. P97.
88. Ibid, section 10(2).
89. Ibid, section 11(2).
90. Ibid, section 1.
91. The Municipal Act, S.M. 1996, c. 58 - chap. M225.
92. Ibid, section 373.
93. The Wills Act, R.S.M. 1988, c. W150.
94. Ibid, section 12. There is a saving provision if it can be proven that neither the witness nor his or her spouse exercised any improper or undue influence upon the testator.
95. Ibid, section 13. There is the same saving provision as in section 12.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Conflict of Interest Law in Manitoba
IV) Conflicts of Interest and Protection of the Public Interest	IV b) Submissions and Consultations
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report