Opinions and Current Issues Blog

Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com

Why this Lawyer Thinks the #Fordcourt Got it Wrong

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.  

 

Advertisements

3 comments on “Why this Lawyer Thinks the #Fordcourt Got it Wrong

  1. Harry Cho
    January 26, 2013

    Regardless of my politics (I certainly did not vote for Ford), I think the Divisional Court got it right. The “grundnorm” in administrative law is jurisdiction. Where a statutory body exceeds its jurisdiction, any decision that flows is void “ab initio”. City Council acted beyond its jurisdiction by ordering His Worship to repay the $3150. The MCIA, however, does not give City Council that power.

    I don’t read the decision as excusing Mayor Ford’s actions. Rather, the Court correctly focuses its attention on City Council’s failure to act within its legislated jurisdiction. The outcome sucks for Torontonians, but the decision complies with arguably the most important principle in administrative law.

    I predicted this outcome about four weeks ago. Lencnzer’s a heckuva lawyer.

    • Harry Cho
      January 26, 2013

      Here’s what the Court said about City Council’s decision: “the application judge erred in failing to find that Decision CC 52.1 was ultra vires by imposing a sanction not authorized by the COTA.” [At paragraph 69.]

      • sabaahmad
        January 26, 2013

        Not sure I disagree with your analysis. Just think the lack of jurisdiction for the original fine does not erase the conflict for Ford. Impropriety matters – and the court ruled Ford did not have a pecuniary interest and therefore did not act improperly. But conflict rules are also about the appearance of impropriety. He and everyone else thought he voted on a matter in which he had an interest. The fact that the debt was voidable doesn’t change that. He voted on a matter where his personal stake could reasonably be seen to influence his decision. That’s a conflict.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on January 25, 2013 by in Uncategorized.

Twitter Updates

%d bloggers like this: