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Court File No. CV-12-448487
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAULMAGDER
and
ROBERT FORD
FACTUM OF THE RESPONDENT ROBERT FORD
(MOTIONS RETURNABLE AUGUST 24, 2012 AND
APPLICATION RETURNABLE SEPTEMBER 5, 6, 7, 2012)
August 16, 2012 LENCZNERSLAGHTROYCE
TO:
SMITH GRIFFIN LLP
Barristers
Suite 2600
130 Adelaide Street West
Toronto ON M5H 3P5
Alan J. Lenczner, Q.C. (l1387E)
Tel: (416) 865-3090
Fax: (416) 865-2844
Email: alenczner@litigate.com
Andrew Parley (55635P)
Tel: (416) 865-3093
Fax: (416) 865-2873
Email: aparley@litigate.com
Lawyers for the Respondent
RUBY SHILLER CHAN LLP
Barristers
11 Prince Arthur Avenue
Toronto, ON M5R 1B2
Clayton Ruby
Nader R. Hasan
Tel: (416) 964-9664
Fax: (416) 964-8305
Lawyers for the Applicant
Applicant
Respondent
Court File No. CV-12-448487
BETWEEN:
ONTARIO
SUPERIOR COURT OF JUSTICE
PAULMAGDER
and
ROBERT FORD
FACTUM OF THE RESPONDENT
ROBERT FORD
PART I - INTRODUCTION
Applicant
Respondent
1. The relief requested by the applicant in his motions is neither relevant nor necessary for the
determination of the single issue in the Application.
2. The single issue is whether, by voting in favour of a Resolution of City Council on
February 7, 2012, the respondent contravened the Municipal Conflict of Interest Act ("MCIA").
3. The Resolution, which passed by a vote of 22-12 was to rescind a previous Resolution of
City Council of August 25,2010.
4. The single issue fundamentally involves questions of law: Do the provisions of the MCIA
apply to a Code of Conduct violation? Did City Council under its statute, the City a/Toronto Act,
2006 ("COT A"), have the authority to require the respondent to pay $3,150 to charitable donors.
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5. As a consequence of the timing of the applicant's motions and the schedule for the delivery
of Facta, the respondent hereby provides its Factum on the Application, which also serves as
context for the motions and his responses to the motions.
6. The respondent submits four responses to this Honourable Court, each of which justifies
the dismissal of the Application:
(a) the ultra vires appIication of the MCIA provisions to a breach of the Code of
Conduct. The Code of Conduct is a distinct and separate statutory regime which
provides specific penalties for any breach;
(b) the ultra vires City of Toronto Resolution requiring the respondent to pay $3,150 to
donors who had contributed to a charitable foundation;
(c) in the alternative, error of judgment; or
(d) III the further alternative, insignificant amount that does not influence the
respondent's actions.
PART II - SUMMARY OF FACTS
7. The Integrity Commissioner, who is mandated by the City a/Toronto Act to investigate
alleged Code of Conduct violations, determined the respondent had breached the provisions of the
Code in that he used his councillor letterhead to solicit funds for his charitable foundation.
8. It is important to bear in mind in determining this application that the breach was not the
solicitation of funds for charitable purposes but the use of councillor letterhead to do so.
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9. The Integrity Commissioner then recommended to City Council that it impose the penalty
on the respondent by making him personally pay the sums received by the charitable foundation
back to the donors. City Council followed this penalty recommendation. It could not do so as
s. 160(5) of the City o/Toronto Act provides the specific penalties that Council can impose for a
Code of Conduct violation. This penalty is not one authorized by the statute.
10. The MCIA does not apply to a breach of the Code of Conduct.
11. The MCIA does not, in any event, apply to a breach which does not affect the respondent's
pecuniary interest.
12. The penalty for a breach of the Code of Conduct is specifically provided in s. 160(5) of the
City o/Toronto Act.
Misapplication of the Municipal Conflict of Interest Act to the Foundational Facts
13. The provisions of the MCIA have as their objective, transparency. Unlike a legal conflict
of interest for which there is an absolute prohibition, when a matter of the City of Toronto's
commercial or business interest comes before Council, there is no prohibition against a councillor
in participating in the business or commercial opportunity. Thus, for example, a councillor may,
even in the name of a numbered company, bid on a piece of surplus land that the City is selling
provided that he/she discloses hislher interest and refrains from speaking to the matter or voting
thereon. Disclosure and transparency are paramount.
14. If the City of Toronto is contracting for printing services or road construction, a councillor,
or a member of his family, or his numbered company, can participate provided he declares a
conflict so that the other councillors and the public know that he is an interested party.
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15. The MCIA is concerned with business or commercial matters of the City of Toronto. That
is the objective of the MCIA and the clear purport of the exceptions in section 4. The vast majority
of the authorities decided pursuant to the MCIA illustrate this principle:
(a) Re Blake and Watts involved the remission of the City of a portion of a tax levy to
the London Board of Education;
(b) Baillargeon v. Carroll involved City Council voting on a budget matter that would
reduce teaching staff. The councillor's daughter was a teacher;
(c) Tuchenhagen v. Mondoux involved the sale by the City of a parcel of land;
(d) Re: Greene v. Borins involved four land development proposals;
(e) Campbell v. Dowdall involved an application before City Council regarding top
soil removal and re-designation andlor severance of lands;
(f) Mino v. D 'Arcey involved construction of new municipal offices;
(g) Jackson v. Wall involved the construction by the City of arterial road.
16. The MCIA applies to a situation where a City business matter is to be decided and where
the councillor has a pecuniary interest in the outcome of the vote. In the situation at bar it is not a
City business matter that is to be decided. The decision has been made by the Integrity
Commissioner and she determined that the transgression was the improper use of councillor
letterhead. Additionally, the respondent has no pecuniary interest in the determination whether or
not he properly or improperly used his official letterhead. There is no conflict between the City
and the councillor with respect to the conduct that is the violation.
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17. The Code of Conduct, on the other hand, is incorporated in the COTA, a different statute
with a different purpose. The Code of Conduct provisions have their own regime and their own
specific penalties. Section 157 of COT A regulates the personal conduct of councillors not the
business of the City.
18.
Section 157
Code of Conduct
157. (1) The City shall establish codes of conduct for members of city
council and members of local boards (restricted definition). 2006, c. 11,
Sched. A, s. 157 (1).
(3) A by-law cannot provide that a member who contravenes a
code of conduct is guilty of an offence. 2006, c. 11, Sched. A, s. 157 (3).
An alleged violation of the Code of Conduct is determined solely by the Integrity
Commissioner. The Integrity Commissioner can then recommend that City of Toronto Council
pass a Resolution in respect of the conduct violation. There is no issue of transparency. Council
and the public know the individual being censored.
Appointment of Commissioner
158. (1) The City shall appoint an Integrity Commissioner. 2006, c.
11, Sched. A, s. 158 (1).
Reporting relationship
(2) The Commissioner reports to city council. 2006, c. 11, Sched.
A, s. 158 (2).
19. There is also no issue of a matter of City business being decided.
20. In a Code of Conduct matter, the City of Toronto does not initiate the matter before
Council. It is the Integrity Commissioner, who has the jurisdiction over councillor conduct and it
is she who determines whether there has been a violation.
Section 160
Penalties
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(5) City council may impose either of the following penalties on a
member of councilor of a local board (restricted definition) if the
Commissioner reports to council that, in his or her .opinion, the member
has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in
respect of his or her services as a member of council or of the local
board, as the case may be, for a period of up to 90 days. 2006, c.
11, Sched. A, s. 160 (5).
21. The councillor who is named and targeted by the proposed sanctioning Resolution must
have an opportunity to speak to the matter before Council determines whether to accept the
Integrity Commissioner's recommendation. Otherwise, he is denied natural justice and fairness in
that he cannot offer any explanation, or mitigating circumstances, etc. before Council censors him.
That would be the result if the MCIA applied to a Code of Conduct violation. The draconian
measure of muzzling a councillor when a sanction for his own conduct is being decided is not the
objective of the MCIA.
22. Code of Conduct violations are not within the purview of the MCIA. Code of Conduct
matters engage a separate statutory regime. The legislature did so deliberately and provided
specific penalties, which are limited to two penalties. There are no issues of transparency or of the
City of Toronto's business interests.
23. The matter of penalty is not captured by the MCIA. Conduct of the councillor which
conflicts with the City's business interest may, in appropriate circumstances, be caught by the
MCIA. A distinction between liability and penalty must be made.
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The Ford Football Foundation
24. The Rob Ford Football Foundation (the "Football Foundation") was established on
March 31, 2008. The respondent is the sole officer and director of the Football FoUndation.
25. The goal of the Football- Foundation is to provide funding to Toronto high schools to
establish football programs within those schools through the purchase of equipment.
26. Like many other similar charitable foundations, the Football Foundation is administered by
the Toronto Community Foundation. The Toronto Community Foundation is a registered, public,
non-profit organization created for and by the people of Toronto.
27. Through their donor servIces, the Toronto Community Foundation conducts the
administration of the Football Foundation, including the receipt of aU donations, the issuance of
tax receipts and "thank you" letters to donors, and the distribution of funds to grant recipients.
28. Solicitation for donations is done by the Football Foundation rather than the Toronto
Community Foundation. Solicitations are normally made by letter. The respondent personally
pays for all of the stationary and office supplies used for these solicitations.
29. However, although the respondent is personally involved in the solicitation of donations
for the Football Foundation, he never beneficially receives any of the funds that are donated. All
of these funds are given to the Toronto Community Foundation.
30. Any high school seeking funding may ~ p p l y by communicating directly with the
respondent. The Football Foundation does not have any administrative staff to handle these
communications. The Football Foundation is a personal charitable mission of the respondent and
he handles most of the communications directly.
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31. Grants to high schools range between $5,000 and $10,000. Since March 2008, the
following Toronto high schools have received grants from the Football Foundation:
Westview Centennial Secondary School;
C.W. Jeffreys Collegiate Institute;
Eastern Commerce Collegiate Institute;
Lester B. Pearson Collegiate Institute;
Sir Sandford Fleming Academy, now called John Polanyi Collegiate Institute;
Forest Hill Collegiate School;
Satec W.A. Porter Collegiate Institute;
Winston Churchill Collegiate Institute;
George Harvey Collegiate Institute; and,
Blessed Mother Teresa Catholic Secondary School.
The August 12,2010 Integrity Commissioner Report
32. When the respondent started soliciting donations to the Football Foundation, some letters
went out on City Council letterhead. This was the subject of the Report of the Integrity
Commissioner, dated August 12, 2010. This report was expressly stated to have no potential
financial impact on the City of Toronto. The purpose ofthe statement is indicate that the matter is
one of inappropriate behaviour of the councillor in using letterhead and not one that impacts the
financial interests of the City either positively or negatively.
33. This report was tabled at the meeting of City Council on August 25, 2010. There was no
debate of this issue at the time the Report of the Integrity Commissioner was tabled. Council
adopted on consent the recommendation of the Integrity Commissioner. This included a
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recommendation that the respondent personally "reimburse" the money that certain individuals
and corporations donated to the Football Foundation.
34. The respondent never beneficially received any funds donated by any of these individuals
or corporations. These funds were all paid to the Tororito Community Foundation . .
35. Since receiving the Integrity Commissioner's August 12,2010 report, the respondent has
taken steps to ensure that letters soliciting donations to the Football Foundation are always sent on
letterhead for the Football Foundation rather than on City of Toronto letterhead or the letterhead of
the Mayor's office.
36. The receipt of donations by the Toronto Community Foundation did not benefit the City of
Toronto. Likewise, council's order adopting the recommendation of the Integrity Commissioner
that the respondent personally pay $3,150 to the donors does not affect the City of Toronto and
does not financially impact the City.
Compliance with the MCIA
37. Since 2001, the respondent has declared a conflict of interest on many occasions when a
matter of City business came before Council and the respondent or a member of his family had a
pecuniary interest in that business matter:
(a) On July 24, 2001:
"Councillor Ford declared his interest in Clause No. 23 of Report No. 11
of The Administration Committee, headed ' Printing and Distribution Unit
Procurement Procedures' , in that he is the owner of a company that
supplies decals, labels and tags."
Reference:
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The Applicant's Supplementary Record, Tab DO, page 263
Robert Ford Cross-Examination Transcript ("Ford
Transcript"), pp. 41-43
(b) On July 22 to 24, 2003:
"Councillor Ford declared his interest in Clause No.7 of Report No.7 of
The Administration Committee, headed 'Delay in Award of Request for
Quotation for Supply, Printing and Mailing of Tax and Water Bills and
Parking Tag Notices', in that he owns a printing company."
Reference: The Applicant's Supplementary Record, Tab CC, page 254
Ford Transcript, pp. 44-45
(c) On November 30, December 1 and 2,2004:
"Councillor Ford declared his interest in Administration Committee
Report 9, Clause 5, headed 'Service Improvement Review for Printing and
Reproduction Services', in that his family owns a printing company."
Reference: The Applicant's Supplementary Record, Tab BB, page 241
Ford Transcript, pp. 45-46
(d) On February 21-28, March 1,2005:
"Councillor Ford declared his interest in Policy and Finance Committee
Report 3, Clause 1, headed 'City of Toronto 2005 Budget Advisory
Committee Recommended Capital Budget and 2006-2014 Capital Plan',
as it applies to the City Clerk's Office, as his family owns a printing
company."
Reference: The Applicant's Supplementary Record, Tab AA, page 230
F5>rd Transcript, pp. 46-48
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(e)
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On July 19,2005:
"Councillor Ford declared his interest in Etobicoke York Community
Council Report 5, Clause 16, headed 'Proposed 'No Parking Anytime'
Prohibition on Greensboro Drive (Ward 2 - Etobicoke North)', in that his
family owns property on Greensboro Drive."
Reference: The Applicant's Supplementary Record, Tab Y, page 217
Ford Transcript, pp. 49-51
(f) On July 19,20,21,26,2005:
"Councillor Ford declared an interest in Etobicoke York Community
Council Report 5, Clause 16a, headed 'Proposed 'No Parking Anytime'
Prohibition on Greensboro Drive (Ward 2 - Etobicoke North)', in that his
family owns property on Greensboro Drive."
Reference: The Applicant's Supplementary Record, Tab Z, page 223
Ford Transcript, pp. 51-52
(g) On September 26,2006:
"Councillor Ford declared is interest in the following matters, in that his
family owns a printing company:
- Administration Committee Report 5, Clause 7, headed 'Procurement of
an Order Picker (Fork Lift) and Budget Adjustments relating to the
Printing Equipment Replacement Plan of the City Clerk's Office, Records
and Information Management'; and
- Motion J(57), moved by Deputy Mayor Bussin, seconded by Councillor
Li Preti, respecting a limit on Municipal Election campaign expenses."
Reference: The Applicant's Supplementary Record, Tab X, page 207
Ford Transcript, pp. 53-55
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(h) On November 19 and 20,2007:
"City Council on November 19 and 20, 2007, adopted the following
motions:
1. City Council direct the Chief Building OfficiallExecutive Director to:
a. investigate the specific sign location, as provided by Mr. Rami Tabello
and Mr. Jonathan Goldsbie (in communications LS8.5.1 and LSS.5.3) ana
report back to the Licensing and Standards Committee in four months;
Declared Interest (City Council)
Councillor Ford - in that his family owns a business at 28 Greensboro
Drive, which is in the vicinity of one of the referenced sign locations."
Reference: The Applicant's Supplementary Record, Tab W, pp. 201-202
Ford Transcript, pp. 59-60
(i) On March 8, 2011:
"Declared Interests (City Council)"
The following member(s) declared an interest:
Mayor Rob Ford - Speaker Nunziata advised City Council that Mayor
Ford wishes to declare an interest in this matter and absent himself from
the chamber."
Reference: The Applicant's Supplementary Record, Tab V, page 199
Ford Transcript, pp. 55-57
38. Indeed, at the very meeting on February 6 and 7, 2012, which is the subject matter of the
application, the respondent declared his interest and refrained from voting on a matter involving
the Lambton Golf Club because his mother is a member.
MS. CHAISSON: That's correct.
MR. LENCZNER: So the golf course is assessment review thing, and it says that:
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" ... The following members declared an interest: Mayor Rob Ford and his
family are members of the private golf course, Council/or Doug Ford, Deputy
Mayor Doug Holydayand Council/or James Pasternak ... "
And all give the same reason, they're members of the golf club, the private golf club.
BY MR. RUBY:
262. Q. What was the finanCial interest in this ~ o n e ?
A. Again, I couldn't answer that question, but I know the legal staff advised all the
council/ors and the mayor that if someone was a member or any family members ... or, "If
anyone from your family is a member of the golf course, you should declare a conflict, " and
my mom is a member at Lambton.
Reference: Ford Transcript, pp. 62-63
The Subject Matter of the Application
39. On February 7,2012, the matter on the printed agenda before Council was to require the
respondent to provide proof that he, personally, had paid the fine of $3,150 by reimbursing the
money to the donors, most of whom had written that they did not want or require the money. The
respondent spoke to the matter at this time explaining the Football Foundation and the benefits it
provided.
40. Before the advertised motion could be reached, Councillor Ainslie moved that the
August 25, 2010 Resolution be rescinded. The respondent did not speak to this matter but did vote
in its favour.
41. The issue in this application is whether, in voting to rescind the August 25, 2010
Resolution imposing a fine for Code of Conduct violation, the respondent breached the MCIA
provIsIOns.
42. It is respectfully submitted that the Code of Conduct and its provisions are focussed on
Councillor conduct. It is a separate and distinct piece oflegislation from the MCIA. The Code of
Conduct is not aimed at City of Toronto business. The Code of Conduct provisions mandate two
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specific penalties. It is respectfully submitted that, as a matter of statutory interpretation and
application, one cannot apply the sanctions of the MCIA to a breach of the Code of Conduct.
43. It is important to note that on both occasions, in August 2010 and again in February 2012,
the Integrity Commissioner specifically noted that her recommendation had no financial impact on
the City of Toronto. That sentence is intentionally added to indicate that City business is not
affected.
44. There is also no issue of transparency. It is clear that the subject matter of the discussion
and decision to be made is with respect to the respondent.
45. As a result, the application of the MCIA on February 7,2012 to the rescission of an earlier
Resolution (August 2010), which had imposed a fine on the respondent, is misconceived and ultra
vires the Act.
The Council of the City of Toronto had no Statutory Authority to Levy a Fine or Require
Repayment by the Respondent
46. The City of Toronto, its Council and Councillors are a statutory body and derive their
authority only from the City of Toronto Act, 2006 ("COTA"). Collectively, they are limited in their
powers to the grant of authority specified in the COrA.
Reference: Immeubles Port Louis Ltee. v. Lafontaine (Village), [1991] 1
S.C.R. 326 at para. 42
Rawana v. Sarnia (City) (1996), 30 O.R. (3d) 85
Aboutown Transportation Ltd. v. London (City) (1992), 9 O.R.
(3d) 143
47. Section 160(5) of the COTA authorizes Council to either reprimand a Councillor or to
suspend hislher pay.
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48. Neither in August 2010, nor on February 7 did Council act within its statutory authority.
On August 28, 2010, Council passed a Resolution, without vote, to require the respondent to
personally repay the donors $3,150. The Resolution was ultra vires Council, as it did not have the
authority to make such a Resolution. It was neither a reprimand nor a suspension.
49. On February 7, 2012, Council voted in favour of rescinding its earlier August 28, 2010
ultra vires Resolution. Rescinding an ultra vires Resolution is not a matter which engages the
MCIA.
50. Thus, although City Council on August 25,2012 was within its right to impose a penalty on
the respondent for his Code violation, it could only do so by sanctioning him in accordance with
the penalties legislated in s. 160(5). Council acted beyond its authority. An ultra vires Resolution
is a nullity.
Alternative Submissions if the MCIA Applies to the Events of February 7, 2012
51. In the alternative, the respondent should receive the benefit ofs. 10(2) of the MCIA on the
basis of error of judgment, inadvertence or insignificant amount.
Section 10
Saving by reason of inadvertence or error
(2) Where the judge detennines that a member or a fonner
member while he or she was a member has contravened subsection 5 (1),
(2) or (3), if the judge finds that the contravention was committed through
inadvertence or by reason of an error in judgment, the member is not
subject to having his or her seat declared vacant and the member or fonner
member is not subject to being disqualified as a member, as provided by
subsection (1). R.S.O. 1990, c. M.50, s. 10 (2).
52. The respondent has amply demonstrated, as detailed in paragraphs 30(a) to (i) and
paragraph 31 supra that, when it comes to the City's business or commercial matters which might
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affect his or his family's pecuniary interests, he declares a conflict, refrains from speaking to the
matter and does not vote.
53. Indeed, the respondent has stated that his understanding is that the MCIA is triggered when
there is a matter that is of benefit to the City in that the City can gain or lose a benefit by the passing
of a Resolution with respect to the matter:
(a) When the respondent started soliciting donations for the Football Foundation, some
letters were sent out on City Council letterhead. This was the subject of the Report
of the Integrity Commissioner, dated August 12, 2010. This report was stated to
have no potential financial impact on the City of Toronto. Indeed, on February 7,
2012, the Integrity Commissioner in making her recommendation that the
respondent provide proof of payment stated that the matter had no potential
financial impact on the City of Toronto;
(b)
(c)
68. Q. That's interesting, but the question I asked was whether, as a result of
reading that, you understood and you knew that under the MCIA, you must declare
a pecuniary interest direct or indirect, and you must not vote on or to speak to the
matter in which you have a pecuniary interest, whether on your own behalf or
through or with another entity . Yes?
A. lfthe City is benefiting from it, yes;
83. Q. And that was your only understanding?
A. From what I understand of the Municipal Conflict of Interest Act, yes,
ifit benefits the City.
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54. On February 7, 2012, the anticipated agenda item was whether the respondent had to
provide proof of payment. That was an administrative matter that did not require him to make a
payment. He believed he had a right to speak to the matter. Had he done so, he w ~ ) U l d not have
contravened the MCIA as the item was purely administrative.
55. But the matter never arose; there was a new, unanticipated debate recommending that
Councillors should be able to solicit funds for charitable organizations. After some confusion, a
floor motion was presented to rescind Council's August 25,2010 Resolution that the respondent
pay $3,150 to donors to the Ford Football Foundation. The respondent says he was confused. He
did not believe he was in a conflict of interest. He should be believed for three cogent reasons:
(a) his past conduct shows that he declared a conflict repeatedly whenever there was a
City business matter that could possibly impact him or his family;
(b) on the very same day, he declared a conflict with respect to the City resolution re:
the Lambton Golf Cllib because his mother was a member - see paragraph 38
hereof; and
( c) he had a longstanding belief that the MCIA was only triggered if the City had to
gain or lose a benefit from the matter to be decided.
56. Although there was no obligation to do so, the respondent also anticipated that City Staff,
be it the Clerk or City Legal Staff, would remind him that he should abstain from speaking and
voting. They had many times in the past:
BYMR. RUBY:
124. Q. In your affidavit, as you have already told me, the indication you give is that the city
clerk and/or staff will also normally advise or remind a member of council of a potential conflict of
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interest, if staff believes that member may be in a conflict of interest in the past on a similar issue.
That's your affidavit.
MR. LENCZNER: This is paragraph 24 you're referring to him?
125. MR. RUBY: It is.
MR. LENCZNER: Okay, yes.
THE DEPONENT: Or at a committee meeting, yes.
BYMR. RUBY:
126. Q. Okay. So that's normally done. Is it always done?
A. I don't think it is always done. It all depends if the clerk is aware of it.
163. Q. My question is you agree with me that the obligation is placed here on the member.
You understood that?
A. It's up to you to inform or ask questions of the city clerk or legal ...
164. Q. And no obligation is put on anybody else but the member by this legislation, correct?
A. Sometimes you're in a conflict, sometimes you're not. You may think you are, and
sometimes you're not. So it's more about... to get legal advice.
165. Q. And the obligation, whatever it may be, is placed on the member of council, not
anybody else, correct?
A. It's up to you to ask the questions or find out.
Reference: Ford Transcript, pp. 28-29 and 36-37
57. Given the unanticipated change from the written agenda, the respondent's belief as to what
was encompassed by the MC/A, the bona fide intentions of the respondent from past declarations
of conflict of interest and indeed one declaration of conflict of interest on February 7, 2012 itself,
at best, the respondent's actions were an error of judgment.
58. Section 4(k) of the MCIA provides:
Where s. 5 does not apply
4. Section 5 does not apply to a pecuniary interest in any matter that a
member may have,
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(k) by reason only of an interest of the mem ber which 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).
59. The amount of money involved, $3,150, when considered against the $167,770 salary of
the Mayor is insignificant. It is also inconsequential when weighed against the consequences of
the Act. No objectively reasonable person could conclude that the respondent, a City Councillor
for ten years and Mayor for two years would jeopardize his position for $3,150 particularly when
on the same day he declared a conflict of interest because of his mother's membership in the
Lambton Golf Course.
Responses to Motions
60. The applicant seeks a trial. Matters of this nature, including allegations under the Me/A,
are routinely dealt with by application. This matter involves a single issue and no facts that are in
dispute. The arguments will centrally involve submissions regarding the law. No trial is required.
61. The applicant's other motions require leave of the Court because they are beyond the time
limits set out in the Rules and because they represent the exception, rather than the norm. A
motions judge has a discretion that he is free to exercise with respect to all these matters. There is
case law on both sides of the issue, but each case is specific to its own facts and the issues involved.
62. The applicant wishes to file an affidavit of a former councillor, Howard Moscoe. Mr.
Moscoe.makes the following points in his proposed affidavit:
(a) "Neither the City Clerk nor the any other City staff normally give legal advice to
Councillors regarding conflicts of interest" at para. 4; and
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(b) "Mr. Ford does not have any effective procedures in place to guard against conflicts
of interest." At questions and 135 of the transcript of Mr. Ford's
cross-examination; he admits he has no procedures in place to identify potential
conflicts of interest.
63. To file Mr. Moscoe's affidavit, the applicant requires leave of the Court as it is given after
the and late in the process.
64. Moreover, Mr. Moscoe's affidavit is unnecessary. As to the assertion that the respondent
does not have any procedures in place to identify potential conflicts of interest, the respondent
. .
admitted that:
134. Q. What procedure do you have in place to let the city clerk know when you might have
a conflict, if any?
A. We don't have anything in place, and I don't think ...
BYMR. RUBY:
135. Q. What protocol do you have with regard to your own staff to see that you are alerted to
cases of potential conflict of interest?
A. I don't believe we have an actual protocol in our office.
Reference: Ford Transcript, pp. 30 and 31
65. As to whether the City Clerk or legal staff gives advice to councillors on occasion, the
respondent does not allege or claim that the Clerk or legal staff have any obligation to give legal
advice. The respondent has indicated that they have reminded him of conflicts in the past or given
him direction when he has asked for it. Please see questions and answers at paragraph 56 supra:
66. The applicant seeks to have the respondent cross-examined viva voce at the hearing. It
claims that "credibility" is in issue.
21
67. Credibility is not in issue. The respondent has been categorical that his understanding of
the MCIA is triggered whenever the City of Toronto introduces a matter for Resolution that can
provide it with a benefit or cost it a benefit. Please see questions and answers at para. 53 supra.
68. The respondent has acted in accordance with his understanding on more than nme
occasions in the past, including on the very day in question.
69. His understanding is either right or wrong. If wrong, it is submitted that it is an error of
judgment. It is not a question of credibility. Certainly not one that cannot be determined from the
transcript of his cross-examination and that s,ubjects him to a second cross-examination.
70. The questions refused at the cross-examination do not advance the legal issues to be
determined. They are irrelevant and designed to embarrass.
Q. Would you agree with me that you tell lies from time to time, especially when you're caught
acting wrongly?
The applicant seeks to ask the respondent whether he lied about being drunk at the hockey game
and later had to apologise. Whether he lied to a reporter about a marijuana charge in Florida.
71. The other questions refused relate to hypothetical situations which did not arise, e.g. "If
council chose to order that you lose your salary for 90 days, that would have a financial impact on
you?" First, council never made that "order". Second, it is rhetorical. It is obvious that if pay is
withheld, it impacts a recipient financially.
72. The applicant wishes to examine the City of Toronto Solicitor and the Clerk. The purpose
of such examination is to elicit the answers that there is no obligation on either to advise
councillors that they have a conflict of interest. That is conceded. The respondent does not take
the position that any error in judgment on February 7,2012 in voting to rescind the City of Toronto
22
Resolution of August 25,2010 resulted from the City Solicitor or the Clerk failing to advise him
that he had a conflict of interest.
73. The respondent says that, in the past either a City lawyer or the Clerk would remind him of
a conflict that he had and that he would and did refrain from voting. The respondent does not rely
on the receipt of advice as a legal matter. He only points out that his error of judgment was not so
apparent as to raise a concern with others at the council meeting. On this occaSIOn,
February 7,2012, he says:
"24. There were City of Toronto staff members present throughout the
council meeting as well as the City Clerk. Normally, when an issue of
procedure or conduct arises during the course of a council meeting, either
the City Clerk or staff will provide comment and information so that the
situation is clarified. The City Clerk and/or staffwill also normally advise
or remind a member of council of a potential conflict of interest if staff
believes that the member may be in a conflict of interest or where the
member has declared a conflict of interest in the past on a similar issue.
25. No such issue was raised during the course of the February 7,
2012 council meeting and at no point did anyone raise any concern about
my presence during the debate of this vote or my participation in the vote."
Reference: Affidavit of Robert Ford sworn June 5, 2012, p. 6
74. It is respectfully submitted that this Application ought to proceed as scheduled on its
present record. Each party has sufficient facts and law, as detailed in their Facta, to make all the
relevant and necessary arguments to the Court.
75. It is respectfully submitted that the Application and motions be dismissed with costs.
ALL OF WHICH IS RESPECTFULLY SUBlVUTTE
A Alan J. Lenczner, Q.c.
~ ! i : f t
r
i .
r
I
23
LENCZNER SLAGHT ROYCE
SMITH GRIFFIN LLP
Barristers
Suite 2600
130 Adelaide Street West
Toronto ON M5H 3P5
Alan J. Lenczner, Q.C. (1 1387E)
Tel: (416) 865-3090
Fax: (416) 865-2844
Email: alenczner@litigate.com
Andrew Parley (55635P)
Tel: (416) 865-3093
Fax: (416) 865-2873
Email: aparley@litigate.com
Lawyers for the Respondent
.-
,
-,
r
SCHEDULE "A"
LIST OF AUTHORITIES
Immeubles Port Louis Ltee. v. Lafontaine (Village), [1991] 1 S.C.R. 326 at para. 42
Rawana v. Sarnia (City) (1996), 30 O.R. (3d) 85
Aboutown Transportation Ltd. v. London (City) (1992), 9 O.R. (3d) 143
r-
SCHEDULE "B"
PART 2 - TEXT OF STATUTES, REGULATIONS & BY - LAWS
CITY OF TORONTO ACT, 2006, S.O. 2006, C. 11, A
-Section 157 --
Code of Conduct
Section 157 (1) The City shall establish codes of conduct for members of city council and
members of local boards (restricted definition). 2006, c. 11, Sched. A, s. 157 (1).
Same
(3) A by-law cannot provide that a member who contravenes a code of conduct is
guilty of an offence. 2006, c. 11, Sched. A, s. 157 (3).
Section 158
Appointment of Commissioner
Section 158 (1) The City shall appoint an Integrity Commissioner. 2006, c. 11, Sched. A, s.
158(1).
Reporting relationship
(2) The Commissioner reports to city council. 2006, c. 11, Sched. A, s. 158 (2). (1)
Section 160
Penalties
Section 160 (5) City council may impose either of the following penalties on a member of
councilor of a local board (restricted definition) if the Commissioner reports to council that, in his
or her opinion, the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her services
as a member of council or of the local board, as the case may be, for a period of up to 90 days.
2006, c. 11, Sched. A, s. 160 (5).
2
MUNICIPAL CONFLICT OF INTEREST ACT, R.S.O. 1990, CHAPTER M.50
Section 4
Where s. 5 does not ~ p p l y
4. Section 5 doe-s riot apply to a pecuniary interest in any matter that it member may have,
(k) by reason only of an interest of the member which 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).
T Section 10
Saving by reason of inadvertence or error
(2) Where the judge determines that a member or a former member while he or she was a
member has contravened subsection 5 (1), (2) or (3), if the judge finds that the contravention was
committed through inadvertence or by reason of an error in judgment, the member is not subject to
having his or her seat declared vacant and the member or former member is not subject to being
disqualified as a member, as provided by subsection (1). R.S.O. 1990, c. M.50, s. 10 (2).
PAULMAGDER
Applicant
- - ' - ~
---......
,-____ l-..,
~ ,
-and- ROBERT FORD
Respondent
Court File No. CV-12-448487
ONTARIO
SUPERIOR COURT OF JUSTICE
PROCEEDING COMMENCED AT TORONTO
FACTUM OF THE RESPONDENT
LENCZNERSLAGHTROYCE
SMITH GRIFFIN LLP
Barristers
Suite 2600
13 0 Adelaide Street West
Toronto ON M5H 3P5
Alan J. Lenczner, Q.C. (11387E)
Tel: (416) 865-3090
Fax: (416) 865-2844
Email: alenczner@litigate.com
Andrew Parley (55635P)
Tel: (416) 865-3093
Fax (416) 865-2873
Email: aparley@litigate.com
Lawyers for the Respondent