Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
Today, the Ontario Divisional Court ruled that Mayor Rob Ford never broke section 5(1) of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (“MCIA”), because he never had a “pecuniary interest” in the outcome of the motion to rescind Decision CC 52.1 (the decision requiring him to pay $3,150).
Mayor Ford believed he had a pecuniary interest in the vote. Everyone believed he had a financial stake in the outcome of the motion. However, by declaring the original fine against Mayor Ford void, the Divisional Court purports to cleanse the wrong committed by Ford when he voted to let himself off the hook for paying $3,150.
Decision CC 52.1 was made by city council, requiring the Mayor to “reimburse” donors for funds paid to Mayor Ford’s football charity. The Integrity Commissioner found the donations were solicited by improper use of Mr. Ford’s office. Mr. Ford never personally received any money from donors, but his football charity did.
The Divisional Court decided that the City had no authority to order Mayor Ford to repay the money. The relevant provision of the City of Toronto Act does not permit punitive sanctions — only remedial ones. The City’s Code of Conduct permits Council to order members to reimburse moneys received, but since Ford never personally received any money, this was not a payment pursuant to the Code. In the absence of authorization under the Code, the Court considered council’s general power to penalize members. Finding it lacked that power, it held the original requirement for Ford to reimburse donors $3,150 never existed.
The Divisional Court’s Decision Tortures the Meaning of “Pecuniary Interest”
S. 5(1) of the MCIA is the section that requires recusal when a member has a pecuniary interest in a matter. It does not go further by explicitly requiring recusal when a member “very likely has” a pecuniary interest or when he or she “appears to have” a pecuniary interest. It does require recusal when a member has an “indirect” pecuniary interest, but nowhere in the MCIA is “pecuniary interest” defined.
So did Mr. Ford have a pecuniary interest in the vote to let him off the hook, or didn’t he?
We find meaning of “pecuniary interest” in s. 4 of the MCIA, where there is a list of items that are excepted from the definition of “pecuniary interest”. S.4(k) provides recusal is not required when the interest:
. . . is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member. R.S.O. 1990, c. M.50, s. 4; 2002, c. 17, Sched. F, Table; 2006, c. 32, Sched. C, s. 33 (1).
Clearly, by creating this exception, the drafters of the MCIA intended for members to recuse themselves whenever an interest could reasonably be regarded as likely to influence a member.
The Divisional Court ruled that Mayor Ford was willfully blind to his obligations under the MCIA and the amount of the fine was not insignificant. Implicitly, Mayor Ford’s interest could influence his position and the exception in s 4(k) would not apply to lift the recusal requirement.
On the date of the vote, the prospect the fine would one day be declared a nullity was remote. Mayor Ford thought he fully participated in a vote to forgive him a $3,150 payment.
The Divisional Court’s subsequent declaration that the fine was a nullity does not change Mr. Ford’s state of mind, or appearances at council on February 7, 2012.
If we traveled back in time, no one could predict that the fine was unauthorized. The possibility that Decision CC 52.1 was void would have appeared very slim indeed. At the time, it was at most, voidable. At the time of the vote, Mr. Ford’s debt was real, due, and owing.
Using a purposive approach to understanding the MCIA, Mayor Ford should have recused himself before voting. It should not be possible for a Court to reach back in time and undo wrongs by declaring his debt a fiction.