Divisional Court File No. 560/12

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

PAUL MAGDER

Applicant (Respondent in Appeal)

-and-

ROBERT FORD

Respondent (Appellant)

FACTUM OF THE RESPONDENT, PAUL MAGDER

Date: December 24, 2012 RUBY SHILLER CHAN HASAN

Barristers 11 Prince Arthur

Toronto ON, M5R 1B2

CLAYTON C. RUBY (#11682R)

NADER R. HASAN (#54693W)

ANGELA CHAISSON (#62131J)

Tel: (416) 964-9664

Fax: (416) 964-8305

Lawyers for the Respondent, Paul

Magder

ii

TO: The Registrar

Divisional Court

Osgoode Hall

130 Queen St. West

Toronto, Ontario

M5H 2N5

AND TO: Messrs. Alan Lenczer and Andrew Parley

Lenczner Slaght Royce Smith Griffin LLP Barristers

130 Adelaide Street West

Suite 2600

Toronto, Ontario

M5H 3P5

TABLE OF CONTENTS

Page

PART I – OVERVIEW AND STATEMENT OF FACTS 1

Factual and Procedural History 1

Part II – ISSUES ON APPEAL 5

Part III – LAW AND ARGUMENT 6

I. City Council’s Orders Were Binding and Intra Vires 6

A. The Appellant’s Ultra Vires Arguments Have Nothing To Do with this Appeal 6

B. The Penalty Provisions of the Code of Conduct Are Intra Vires 6

C. Hackland R.S.J. Did Not Err in Interpreting the COTA 10

D. Whether COTA is a ―Penal Statute‖ Has No Bearing 11

II. The MCIA Applies to Code Of Conduct Matters 12

A. The Text of the MCIA Is Unequivocal 12

B. The Purposes of the MCIA Do not Support the Appellant’s Argument 12

C. The Legislature Intended COTA and MCIA to Function Harmoniously 14

D. The Appellant’s Right To Be Heard Was not Violated 16

III. The Doctrine of Collateral Attack Bars the Appellant’s Argument 17

IV. Mayor Ford’s Pecuniary Interest Was Not Remote or Insignificant 19

V. The Appellant’s Decision To Speak to and Vote at the February 7, 2012 Council

Meeting Was Not an Error in Judgment

23

A. Error in Judgment Cannot Be Based on Ignorance of the Law 24

B. The Appellant Deliberately Failed To Inform Himself About His Obligations

Under the MCIA Despite Being Bound – And Having Sworn – To Do So

24

C. The Appellant Had No Procedures for Identifying Conflicts of Interest 27

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D. The Appellant Ignored Cautions About his Conflict of Interest 20

E. Mayor Ford Had Previously Declared Conflicts Under the MCIA 31

F. The Appellant’s Contravention of the MCIA Forms Part of a Pattern of

Misconduct, Which Undermines Assertions of Bona Fides

32

G. Hackland R.S.J.’s Factual Findings Preclude an Error in Judgment Defence 33

H. The Appellant Has Not Shown Any Error in the Decision Below 35

Part IV – ORDER SOUGHT 37

SCHEDULE ―A‖ – LIST OF AUTHORITIES 38

SCHEDULE ―B‖ – STATUTES AND REGULATIONS 40

1

PART I – OVERVIEW AND STATEMENT OF FACTS

1. Elected municipal officials must govern in accordance with the rules that ensure an honest

and transparent process. The Municipal Conflict of Interest Act (the ―MCIA‖ or the ―Act‖) is a

cornerstone of democratic accountability. It prevents municipal officials who have a pecuniary

interest in a City matter from speaking to or voting on that matter. Where a councillor has

contravened the Act — and fails to establish that s/he satisfies one of the Act‘s exceptions or

defences — the consequence is removal from office. As courts have noted, the provisions of the

MCIA must be ―interpreted harshly‖ to ensure that the public maintains trust in elected officials.

Nothing less than the integrity of Government is at stake.

Baillargeon v. Carroll, [2009] O.J. No. 502 at para. 77 (S.C.J.), Appellant‘s Authorities (―AA‖), Tab 9

2. On March 9, 2012, the Respondent, Paul Magder, asked the Court to remove the

Appellant, Mayor Robert Ford, from office for his violations of the MCIA. The Application

focused on the Appellant‘s decision to both speak to and vote on a February 7, 2012 City Council

resolution that he must personally reimburse $3,150.00 that the City of Toronto Integrity

Commissioner, Ms. Janet Leiper, found he had improperly solicited for the Rob Ford Football

Foundation. Because the Appellant had a pecuniary interest in the matter, which was not

insignificant or remote, and because his participation in the February 7, 2012 matter was not done

by reason of inadvertence or good faith error in judgment, the Appellant violated the MCIA. On

November 26, 2012, the Honourable Justice Charles T. Hackland, R.S.J., granted the Application

and declared Mr. Ford‘s seat vacant. On December 5, 2012, on motion by the Appellant and with

the consent of the Respondent, this Honourable Court granted a stay of the order pending the

appeal.

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Factual and Procedural History

3. The Appellant has served on Toronto City Council for over 12 years. He was first elected

as a City Councillor in 2000 and re-elected in 2003 and 2006. He was elected Mayor in 2010. At

the start of each term he swore an oath to ―disclose any pecuniary interest, direct or indirect, in

accordance with the Municipal Conflict of Interest Act.‖ However, he testified that he never

found time to actually read the Act.

Cross-Examination of Rob Ford, 5 September 2012, Record of Proceedings, pp. 48:1 – 49:11, Respondent‘s

Compendium (―RC‖), Tab 1A, pp. 1-2

4. On August 12, 2010, the Integrity Commissioner issued a report to Toronto City Council

that concluded that Councillor Rob Ford violated the Code of Conduct for Members of Council

(the ―Code of Conduct‖) by using the City of Toronto logo, his status as a City Councillor, and

City of Toronto resources to solicit funds for a private football foundation he created in his name.

The report identified a number of instances where City lobbyists and one corporation doing

business with the City had met with Councillor Ford and had also donated to the Football

Foundation.

Affidavit of Paul Magder at paras. 9-10, March 9, 2012, Exhibit Book (―EB‖), Tab 1, pp. 3-4

5. The Integrity Commissioner recommended that the Appellant be sanctioned for his

repeated breaches of the Code of Conduct. She made no recommendation to Council respecting

most of the improper donations, but she recommended that City Council order Councillor Ford to

repay $3,150.00 in donations made by ―11 lobbyists/clients of lobbyists during the relevant time

period and one corporation engaged in business with the City of Toronto.‖

Affidavit of Paul Magder at para. 11, March 9, 2012, EB, Tab 1, p. 4

6. On August 25, 2010, City Council agreed. It adopted the Integrity Commissioner‘s report

and ordered Councillor Ford to repay the $3,150 in donations improperly obtained from lobbyists.

Affidavit of Paul Magder at para. 13, March 9, 2012, EB, Tab 1, pp. 4-5

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7. Just before that vote, then-Speaker of Council Sandra Bussin specifically alerted the

Appellant to his conflict of interest under the Act. She had no power to do more. The Appellant

chose to ignore this notice and voted on the motion even though he had a pecuniary interest in it.

Affidavit of Sandra Bussin at paras. 8-9, May 8, 2012, EB, Tab 5, pp. 377-378; Reasons for Decision at para.

55, Appellant‘s Appeal Book and Compendium (―AB&C‖), Tab 3, p. 29

8. Almost a year later, on June 30, 2011, the Integrity Commissioner published her 2010-

2011 Annual Report, which recounted that the Appellant had not repaid the donations even

though he received 5 separate reminder letters and requests to repay from the Integrity

Commissioner. He ignored each and every one.

Affidavit of Paul Magder at para. 17, March 9, 2012, EB, Tab 1, p. 5

9. Time passed and the Appellant‘s non-compliance continued. At the February 7, 2012

Council meeting, the Integrity Commissioner tabled a follow-up report recommending that

Council order the Appellant to provide proof of his compliance with its order that he repay

$3,150.00.

Affidavit of Paul Magder at para. 21, March 9, 2012, EB, Tab 1, p. 6

10. The Appellant attended the February 7, 2012 Council session. He spoke to this issue and

made an impassioned speech as to why it was unfair for him to have to pay the $3,150.00 out of

his ―own pocket‖. The Appellant began listing all of the schools and wards that had benefited

from his Foundation and then said that there was ―no sense‖ to ask him to pay back the money. It

was ―gone‖.

Affidavit of Judith Ann MacDonald at para. 7, March 9, 2012, EB, Tab 2, p. 91

11. After hearing the Appellant‘s impassioned defence, Councillor Ainslie, a member of the

now Mayor Ford‘s Executive Committee, brought a motion to rescind the August 25, 2010 order.

The Appellant voted on the motion. His side won.

Affidavit of Paul Magder at para. 24, March 9, 2012, EB, Tab 1, p. 6

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Affidavit of Robert Ford at para. 22, June 5, 2012, EB, Tab 3, p. 105

12. The Appellant admitted to speaking on and voting on the motion deliberately. On cross-

examination, he said he would ―absolutely‖ do it again. Even as he went to trial on this issue, he

has absolutely no regrets.

Affidavit of Paul Magder at para. 24, March 9, 2012, EB, Tab 1, p. 6; Reasons for Decision at para. 51,

AB&C, Tab 3, pp. 27-28

13. The Appellant claimed that the City of Toronto Solicitor and/or City of Toronto Clerk had

often alerted him to his conflicts of interests. He blamed them for not alerting him to the conflict

on February 7, 2012. Yet the Appellant admits that it is not the role of the City Solicitor to

provide such advice. He had no procedure in place for screening for conflicts of interest, nor did

he assign a staff member to this role.

Reasons for decision at para. 55, AB&C, Tab 3, p. 29

14. The Appellant failed to educate himself about this particular law (which he had sworn to

uphold). He failed to read the MCIA. He failed to attend any briefing sessions for new

councillors which educated councillors about this obligation. He failed to read the Councillor‘s

Handbook which discusses this obligation. He failed to consult the Integrity Commissioner even

though she offers free legal advice on conflict of interest matters. He failed to speak to a lawyer.

Ibid. at para. 54, AB&C, Tab 3, pp. 28-29

15. Hackland R.S.J. released his reasons for decision on November 26, 2012 and held that the

Appellant violated s. 5 of the MCIA. Hackland R.S.J. held that the Appellant could not benefit

from the exception set out under section 4(k) of the MCIA because the Appellant himself stated

that the $3,150.00 was a significant amount of money for him, and influenced him to speak to and

vote on the matter before Council.

Reasons for Decision at paras. 41-44, AB&C, Tab 3, pp. 24-25

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16. Hackland R.S.J. found that the Appellant could not benefit from the inadvertence defence

because his decision to speak and vote was deliberate (by his own admission). Nor could the

Appellant rely on the error in judgement defence.

Reasons for Decision at paras. 45-59, AB&C, Tab 3, pp. 25-31

17. Hackland R.S.J. rejected the Appellant‘s jurisdictional arguments. He noted that the

MCIA‘s language and purpose was clear and unambiguous. It prohibits speaking or voting on

―any pecuniary interest direct or indirect in any matter‖ and was not limited in the ways suggested

by the Appellant. Procedural fairness considerations, Hackland R.S.J. noted, may be an impetus

for law reform, but they cannot overcome an unambiguous statutory provision nor can they

excuse the Appellant‘s vote (as opposed to his speech) on the matter at hand.

Ibid. at paras. 12-31, AB&C, Tab 3, pp. 13-20

PART II - ISSUES ON APPEAL

18. The Appellant has raised the following issues on appeal:

a. Whether the City Council Resolution of August 25, 2010 is ultra vires?

b. Whether the MCIA can apply to matters that involve the Code of Conduct?

c. Whether Hackland R.S.J. committed a palpable and overriding error in concluding

that the amount at issue, $3,150.00, was not an insignificant sum?

d. Whether Hackland R.S.J. committed a palpable and overriding error in holding that

the Appellant‘s breach of the MCIA was not a bona fide error in judgment?

19. The Appellant‘s arguments raise the following additional issues:

a. In the event that the City Council Resolution of August 25, 2010 was ultra vires,

does the doctrine of collateral attack preclude the Appellant from raising this

argument despite not having sought judicial review of the Resolution?

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PART III – LAW AND ARGUMENT

I. CITY COUNCIL’S ORDERS WERE BINDING AND INTRA VIRES

A. The Appellant’s Ultra Vires Arguments Have Nothing To Do with this Appeal

20. The Appellant asserts that City Council exceeded its authority on August 25, 2010 when it

passed a resolution requiring the Appellant to repay lobbyist donors $3,150.00 in funds

improperly solicited for his personal charity. Even if the Appellant‘s ultra vires argument is

correct, it cannot be a valid ground for appeal. The Appellant never raised the ultra vires

argument before Council on August 25, 2010. The debate and vote that are challenged in these

proceedings occurred some two years later. The Appellant spoke to a resolution that would have

compelled him to do no more than indicate whether he had complied with the earlier decision of

council. Even if the earlier decision was ultra vires, the February 7, 2012 debate was not. The

Appellant voted on an amendment that successfully rescinded the earlier, allegedly ultra vires

decision. Having that vote was certainly not ultra vires.

21. Moreover, the argument ignores the simple language of s. 5(1); it applies to ―any matter‖

that is the subject of consideration by council. While there are listed statutory exceptions to the

matters in question, this broad language is not limited by words such as ―except for debates about

earlier actions that may be ultra vires‖. Council can properly debate doing things that are ultra

vires, and vote not to do them. And the MCIA applies to those debates and those votes.

B. The Penalty Provisions of the Code of Conduct Are Intra Vires

22. As Hackland R.S.J. notes, the power to force a member of Council to reimburse funds is

enumerated in the Code of Conduct1 but not in the City of Toronto Act (―COTA‖). Thus, under

the Appellant‘s theory, it is not only the August 25, 2010 order that is ultra vires, but also the

1 Section 157(1) of the COTA requires that the City enact a Code of Conduct. Section 157(2) provides that, ―Without

limiting sections 7 and 8, those sections authorize the City to establish codes of conduct for members of city council

and of local boards (restricted definition) of the City.‖ Interestingly, the Legislature saw fit to explicitly state that

subsection 157(1) was not the only statutory authority that allowed the City to establish a Code of Conduct. It could

also be established under the more general welfare provisions of sections 7 and 8.

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penalty provisions of the Code of Conduct. According to the Appellant, the City could have

imposed the harsher measure of suspending the Appellant‘s remuneration for one quarter of the

year (which is expressly provided for under s. 160(5) of COTA), but it could not require the

Appellant to pay back the $3,150.00.

Reasons for Decision at para. 32, AB&C, Tab 3, p. 20

23. The Appellant‘s argument invokes the doctrine of expressio unius est exclusio alterius: to

express one thing is to exclude another. Judges and commentators, however, have urged caution

when invoking this maxim. As Justice Cameron noted in Dorval v. Dorval:

[T]he maxim expressio unius est exclusio alterius is only an aid to statutory

construction…

…. [W]hile it can be a valuable servant, it can be a dangerous master to follow for a

number of reasons. First, much depends on context, including the particular subject-

matter. Second, express reference to a matter may have been unnecessary and been made

only out of abundant caution. Third, the lack of express reference may have been the

product of inadvertence. Fourth, the express and the tacit, incongruous as they may be,

must still be such as to make it clear they were not intended to coexist. And, finally, the

indiscriminate application of expressio unius to the particular subject-matter may lead to

inconsistency or injustice.

Dorval v. Dorval, [2006] S.J. No. 94 at paras. 13-14 (C.A.), Respondent‘s Authorities (―RA‖), Tab 3

See also: Turgeon v. Dominion Bank, [1930] S.C.R. 67 at 70-71, RA, Tab 4 (expressio unius est exclusion

alterius ―is often a valuable servant, it is a dangerous master to follow.‖); Ruth Sullivan, Construction of

Statutes 5th

ed. (Toronto: LexisNexis Canada Inc., 2008) at pp. 251-252, RA, Tab 32

24. In the instant case, there is ample reason why application of this maxim ―is a dangerous

master to follow.‖ The language of the COTA and the Code of Conduct show that the Ontario

Legislature intended that the City should have the power to require that Council members

reimburse funds obtained in violation of the Code of Conduct.

25. The COTA confers on Council broad powers to govern its affairs and the City‘s affairs.

Section 2 states that the purpose of the Act is ―to create a framework of broad powers for the

City‖, balancing the interests of the Province and the City and recognizing that the City must be

able to do specified things in order to provide good government. One of these items is to

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―[e]nsure that the City is accountable to the public and that the process for making decisions is

transparent.‖ That purpose necessarily encompasses compelling Councillors to act ethically and

to remedy any shortcomings in their behaviour as Councillors.

COTA, supra, ss. 2, 2(4)

26. Subsection 6(1) demands a broad interpretation of the City‘s powers:

The powers of the City under this or any other Act shall be interpreted broadly so as to

confer broad authority on the City to enable the City to govern its affairs as it considers

appropriate and to enhance the City's ability to respond to municipal issues.

Ibid. at s. 6(1)

27. Further, s. 7 provides that ―[t]he City has the capacity, rights, powers and privileges of a

natural person for the purpose of exercising its authority under this or any other Act.‖ Section

8(1) confers a broad welfare power, providing that ―[t]he City may provide any service or thing

that the City considers necessary or desirable for the public.‖

Ibid. at ss. 7, 8(1)

28. The Appellant (at Appellant‘s Factum (―AF‖) para. 27) relies on older case law, such as R.

v. Greenbaum, which held that ―municipalities…can exercise only those powers which are

explicitly conferred upon them by a provincial statute.‖

R. v. Greenbaum, [1993] 1 S.C.R. 674 at para. 22, AA, Tab 1

29. The Greenbaum line of cases, however, must be read alongside the more recent line of

cases that supports an expansive approach to municipal powers. As Hackland R.S.J. observed in

his Reasons, ―the controlling jurisprudence of the Supreme Court supports a broad application of

municipal powers in order to carry out the objectives of municipalities.‖

Reasons for Decision at para. 38, AB&C, Tab 3, p. 23

30. Indeed, the Supreme Court has more recently noted that the inclusion of the broad,

―general welfare provisions‖ in municipal acts ―was intended to circumvent, to some extent, the

9

effect of the doctrine of ultra vires which puts the municipalities in the position of having to point

to an express grant of authority to justify each corporate act.‖

114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 at para. 18, RA,

Tab 5

31. Accordingly, the Court has adopted a generous approach to interpretation of those powers.

In Nanaimo (City) v. Rascal Trucking Ltd., the Supreme Court quoted with approval the following

statement by McLachlin J. (as she then was) in Shell Canada Products Ltd. v. Vancouver (City):

Recent commentary suggests an emerging consensus that courts must respect the

responsibility of elected municipal bodies to serve the people who elected them and

exercise caution to avoid substituting their views of what is best for the citizens for those

of municipal councils. Barring clear demonstration that a municipal decision was

beyond its powers, courts should not so hold. In cases where powers are not expressly

conferred but may be implied, courts must be prepared to adopt the "benevolent

construction" which this Court referred to in Greenbaum, and confer the powers by

reasonable implication. Whatever rules of construction are applied, they must not be used

to usurp the legitimate role of municipal bodies as community representatives.

Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 at para. 36 (quoting Shell Canada Products

Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 at 244), RA, Tab 6 [emphasis added]

32. In 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), the Supreme

Court, echoing the Court‘s holding in Nanaimo, held that a court‘s approach to a municipality‘s

powers should be deferential. In applying a general provision allowing a municipality to act to

secure peace, order, good government, health, and general welfare within its territory, the

Supreme Court asked whether the enacted provisions regulating the use of pesticides ―have a

reasonable connection to the municipality's permissible objectives.‖

Spraytech , supra at paras. 23 and 26, RA, Tab 6 [emphasis added]; see also Croplife Canada v. Toronto

(City), [2005] O.J. No. 1896 at paras. 17-29 (C.A.), RA, Tab 7

33. The Supreme Court‘s Spraytech test is easily satisfied in the instant case. There is a

reasonable connection between the August 25, 2010 sanction and the City‘s objectives. As noted

above, one of City of Toronto‘s enumerated purposes is to ―[e]nsure that the City is accountable

to the public and that the process for making decisions is transparent.‖ Accountability involves

10

taking measures to see that elected officials have only the City‘s interests in mind when they

speak and vote.

COTA, supra, s. 2(4); see also paras. 47-50, infra

34. Finally, the COTA contains only one express limitation on the City‘s authority to enforce

the Code of Conduct. Section 157(3) provides that ―[a] by-law cannot provide that a member who

contravenes a code of conduct is guilty of an offence.‖ The Legislature thus turned its mind to

imposing limits on the City‘s ability to enforce the Code of Conduct. If the Legislature had

intended the penalties contained in s. 160(5) to be exhaustive (as the Appellant suggests) then

there would have been no need to enact s. 157(3) to restrict the City‘s enforcement power where a

Councillor had contravened the Code of Conduct.

Ibid. at s. 157(3)

C. Hackland R.S.J. Did Not Err In Interpreting the COTA

35. The Appellant argues (at AF para. 30) that Hackland R.S.J. erred in relying on the COTA‘s

general welfare provisions because a general welfare provision does not apply where a specific

provision in the statute deals with the power at issue.2 The Appellant thus argues that since s.

160(5) of the COTA addresses the question of penalty for violations of the Code of Conduct, then

the general welfare provisions are inapplicable.

36. The Appellant‘s cases, however, do not stand for the proposition that the Appellant

advances. At most, they stand for the idea that the general welfare powers must not be construed

in a manner that is inconsistent with or undermines the specific power. There is no such

contradiction in the instant case. Section 160(5) provides examples of punishments that may be

imposed. It does not purport to limit what additional sanctions may be imposed. Moreover, the

sanction at issue here — an order to reimburse money — is a less severe sanction than the most

2 The Appellant did not raise this argument in the Court below.

11

severe sanction contemplated by s. 160(5) (suspension of salary) and a more severe sanction than

the least severe sanction provided for in s. 160(5) (reprimand). It falls neatly within the two

bookends set by the statute. Thus, the Appellant cannot even argue that an order to reimburse is

inconsistent with the spirit of s. 160(5).

37. The foregoing interpretation of the COTA‘s general welfare powers is further reinforced

by the text of the COTA itself. Section 12 of the COTA provides:

(1) If the City has the power to pass a by-law under section 7 or 8 and also under a

specific provision of this or any other Act, the power conferred by section 7 or 8 is subject

to any procedural requirements, including conditions, approvals and appeals, that apply to

the power and any limits on the power contained in the specific provision.

Interpretation

(1.1) For the purpose of subsection (1) and, unless the context otherwise requires, the

fact that a specific provision is silent on whether or not the City has a particular power

shall not be interpreted as a limit on the power contained in the specific provision.

Ibid. at s. 12 [emphasis added]

D. Whether COTA is a ―Penal Statute‖ Has No Bearing

38. The Appellant further argues that because the COTA is a penal statute, it must be

interpreted narrowly. (AF, para. 26.) However, the notion that penal statutes must be interpreted

narrowly takes on a subsidiary role in the modern approach to statutory interpretation. Under this

approach, the Supreme Court has repeatedly instructed, ―Today there is only one principle or

approach, namely, the words of an Act are to be read in their entire context and in their

grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act,

and the intention of Parliament.‖

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3 at para. 21, RA, Tab 8

39. Further, the common law idea that penal statutes must necessarily be construed narrowly

is at odds with s. 64(1) of the Ontario Legislation Act, which provides that ―An Act shall be

12

interpreted as being remedial and shall be given such fair, large and liberal interpretation as best

ensures the attainment of its objects.‖

Legislation Act, S.O. 2006, ch. 21 Schedule F, s. 64(1)

40. In R. v. Hasselwander (in interpreting s. 12 of the Federal Interpretation Act, which is

analogous to s. 64 of the Ontario Legislation Act), the majority of the Supreme Court held:

The rule of strict construction of penal statutes appears to conflict with s. 12 of the

Interpretation Act, R.S.C., 1985, c. I-21. That section provides that… ―Every enactment is

deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects.‖

The apparent conflict between a strict construction of a penal statute and the remedial

interpretation required by s. 12 of the Interpretation Act was resolved by according the

rule of strict construction of penal statutes a subsidiary role.

[…]

[E]ven with penal statutes, the real intention of the legislature must be sought, and the

meaning compatible with its goals applied.

R. v. Hasselwander, [1993] 2 S.C.R. 398 at 411-412, 413, RA, Tab 9

See also Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at para. 28, RA, Tab 10

41. Hasselwander was cited with approval by the Ontario Court of Appeal in Ruffolo v.

Jackson, which rejected the appellant‘s argument that the MCIA ought to be interpreted in favour

of the member where there is ambiguity. The Court instead sought the Legislature‘s real intention

in construing the Act‘s appeal provisions.

Ruffolo v. Jackson, [2010] O.J. No. 2840 at paras. 9, 12-13 (C.A.), RA, Tab 31

II. THE MCIA APPLIES TO CODE OF CONDUCT MATTERS

42. The Appellant argues that the MCIA is inapplicable because the Appellant‘s underlying

violations involve the contravention of the Code of Conduct, and because they do not implicate

the narrow financial interests of the City of Toronto (AF, paras. 32-50). He suggests that the

MCIA and Code of Conduct are mutually exclusive, and that in cases where the Code of Conduct

applies, the MCIA does not.

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43. This argument lacks any authority in the case law, the statutes or the legislative history.

First, the text of the MCIA does not support the Appellant‘s argument. Second, the purposes of

the MCIA do not support the Appellant‘s argument. Third, the Code of Conduct, which was

promulgated pursuant to the COTA, and the MCIA do not exist as distinct silos. They are

complementary pieces of legislation with common purposes, and must be read together.

A. The Text of the MCIA Is Unequivocal

44. Section 5 of the MCIA applies where a member ―has any pecuniary interest, direct or

indirect, in any matter and is present at a meeting of the council or local board at which the

matter is the subject of consideration….‖ As Hackland R.S.J. noted in the Court below, s. 4 of

the MCIA enumerates eleven different situations where the MCIA does not apply. There is no

justification for reading in additional exceptions that have no basis in the text of the statute.3

MCIA, supra, s. 5 [emphasis added]

Reasons for Decision at para. 25, AB&C, Tab 3, p. 18 (―In my opinion, the court should be reluctant to

create another exception when, to date, the Legislature has chose not to do so.‖)

See also Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601 at para. 10, RA, Tab 13 (―When the

words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in

the interpretive process.‖)

B. The Purposes of the MCIA Do Not Support the Appellant’s Argument

45. In discussing the purpose of the MCIA, courts frequently quote the following passage from

the Divisional Court‘s decision in Re Moll and Fisher:

The obvious purpose of the Act is to prohibit members of councils and local boards from

engaging in the decision-making process in respect to matters in which they have a

personal economic interest. The scope of the Act is not limited by exception or proviso but

applies to all situations in which the member has, or is deemed to have, any direct or

indirect pecuniary interest. There is no need to find corruption on his part or actual loss on

the part of the council or board. So long as the member fails to honour the standard of

conduct prescribed by the statute, then, regardless of his good faith or the propriety of his

motive, he is in contravention of the statute....

3 The Appellant chose not to bring a Charter challenge to the Court below or to this Honourable Court.

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This enactment, like all conflict-of-interest rules, is based on the moral principle, long

embodied in our jurisprudence, that no man can serve two masters. It recognizes the fact

that the judgment of even the most well-meaning men and women may be impaired when

their personal financial interests are affected. Public office is a trust conferred by public

authority for public purpose. And the Act, by its broad proscription, enjoins holders of

public offices within its ambit from any participation in matters in which their economic

self-interest may be in conflict with their public duty. The public's confidence in its

elected representatives demands no less.

Re Moll and Fisher (1979), 23 O.R. (2d) 609 at 4 (Div. Ct.), RA, Tab 11; see also Tuchenhagen v. Mondoux,

[2011] O.J. No. 4801 at para. 27 (Div. Ct.) (quoting and adopting Re Moll and Fisher), AA, Tab 11;

Mangano v. Moscoe, [1991] O.J. No. 1257 at para. 4 (S.C.J.) (per Farley J.) (same), AA, Tab 4; Jaffary v.

Greaves, [2008] O.J. No. 2300 at para. 34 (S.C.J.) (same), RA, Tab 12

46. This Honourable Court, sitting as a court of appeal in Tuchenagen v. Mondoux, further

elaborated on the purposes of the MCIA:

The MCIA is important legislation. It seeks to uphold a fundamental premise of our

governmental regime. Those who are elected and, as a result, take part in the decision-

making processes of government, should act, and be seen to act, in the public interest. This

is not about acting dishonestly or for personal gain; it concerns transparency and the

certainty that decisions are made by people who will not be influenced by any personal

pecuniary interest in the matter at hand. It invokes the issue of whether we can be

confident in the actions and decisions of those we elect to govern. The suggestion of a

conflict runs to the core of the process of governmental decision-making. It challenges the

integrity of the process.4

Tuchenhagen v. Mondoux, supra at para. 25 (Div. Ct.), AA, Tab 11 [emphasis added]

47. During the debate on the 1983 amendments to the MCIA, then-Minister of Municipal

Affairs and Housing, Claude Bennett, emphasized this purpose of the MCIA:

The revised [MCIA] retains the same basic purposes and procedures of the existing act,

and provides a code of conduct governing the entire field relating to conflicts of interest

as they may arise in relation to members of municipal council and local boards in the

province.

[…] The failure of a member of council or of a local board to disclose a pecuniary interest

in any matter under consideration at the meeting of a council or a local board will render

the member liable to having his seat declared vacant….

Ontario, Legislative Assembly, Official Report of Debates (Hansard) (1 February 1983) at page 7101 (per

Hon. Claude Bennett) [emphasis added], RA, Tab 33

4 The Appellant acknowledges that transparency is an objective of the MCIA, but does not accept the italicized

passage. (See AF, paras. 35, 43-46.)

15

C. The Legislature Intended COTA and MCIA to Function Harmoniously

48. The Code of Conduct and the MCIA do not exist as distinct silos. They are

complementary pieces of legislation with common purposes, and must be read together.

See Ruth Sullivan, Construction of Statutes, 5th

edition supra at p. 412, RA, Tab 32

49. Both the Code of Conduct and the MCIA apply to all conflicts of interest — both where

the City has a financial interest and where it does not. The integrity of the City‘s decision-making

is equal in importance to its financial interests; the two are intimately connected with each other.

50. Part VIII of the Code of Conduct prohibits the use of the Councillor‘s office to benefit

―oneself, or one‘s parents, children or spouse, staff members, friends or associates, business or

otherwise.‖ Further, Part IX of the Code of Conduct is entitled ―Business Relations‖. It clearly

contemplates the two Acts being read together:

No member shall act as a paid agent before an agency, board or commission of the City,

the Council, and its committees, except in compliance with the terms of the Municipal

Conflict of Interest Act.

Code of Conduct, attached to Supplementary Affidavit of Paul Magder, May 8, 2012, EB, Tab 4J, pp. 196-

205

51. Meanwhile, the MCIA applies where a member ―has any pecuniary interest, direct or

indirect, in any matter and is present at a meeting of the council or local board at which the

matter is the subject of consideration…‖. It admits no exceptions either by words or context. The

Supreme Court has said that when the words of a statute are clear, they play a dominant role in

the interpretation. Like the Code of Conduct, the MCIA does not distinguish between situations in

which the City has a financial interest and those where it does not.

MCIA, supra, s. 5(1)

See also Canada Trustco Mortgage Co. v. Canada, supra at para. 10, RA, Tab 13

52. The Code of Conduct and the MCIA are complementary but not redundant. As Hackland

R.S.J. noted, this complementary role is reflected in the language of the Code of Conduct:

16

This Code of Conduct operates along with and as a supplement to the existing statutes

governing the conduct of members. The following provincial legislation governs the

conduct of members of Council:

the City of Toronto Act, 2006, and Chapter 27, Council Procedures, of the

Municipal Code (the Council Procedures By-law) passed under section 189 of that

Act;

the Municipal Conflict of Interest Act;

the Municipal Elections Act, 1996; and

the Municipal Freedom of Information and Protection of Privacy Act.

Code of Conduct for Members of Council, City of Toronto, p. 3, attached to the Supplementary Affidavit of

Paul Magder, May 8, 2012, EB, Tab 4J, pp. 196-205 at p. 199 [emphasis added]

Reasons for Decision at para. 28, AB&C, Tab 3, 19

53. These two pieces of legislation are not redundant because they serve different purposes.

Whereas the Code of Conduct empowers the Council to enforce its ethical rules against its

members, the MCIA empowers citizens to enforce ethical rules against Council members by

bringing a private application under section 9 of the MCIA. To accept the Appellant‘s argument

that only the Code of Conduct applies in this case is to say that the citizenry has no way of

holding municipal officials accountable where they breach ethical rules in non-business matters.

Ibid. at s. 9(1)

See also David Mullan, Memo from the Integrity Commissioner, September 21, 2006, at p. 10, online:

http://www.toronto.ca/integrity/pdf/bellamy-recs-council-rep-sept21-06.pdf, RA, Tab 34 (―While the current

Code of Conduct makes reference to conflict of interest, it is the Municipal Conflict of Interest Act that sets

the standards and establishes the mechanism for complaints of conflict of interest on the part of members of

municipal councils across the province.‖)

54. That the MCIA retains primacy in conflict-of-interest matters is further reinforced by s. 15

of the MCIA, which provides: ―In the event of conflict between any provision of this Act and any

provision of any general or special Act, the provision of this Act prevails‖. Section 15 makes it

clear that the Legislature never intended the MCIA to take a backseat to any statute when conflicts

of interest of municipal officials were concerned.

MCIA, supra, s. 15

17

55. At paragraph 37 of his factum, the Appellant lists seven MCIA cases that involved matters

relating to the municipality‘s financial interests. But as Hackland R.S.J. observed, none of these

cases stand for the proposition that the MCIA applies only to business or commercial cases.

Reasons for Decision at para. 27, AB&C, Tab 3, p. 10

See, e.g., Audziss v. Santa, [2002] O.J. No. 1981 at paras. 3-8 (S.C.J.) (MCIA applied to councillors who

were alleged to have breached the rules set out in the Municipal Elections Act), RA, Tab 14; Sheehan v. Hart,

[1993] O.J. No. 1726 at paras. 1-21 (Gen. Div.) (same), RA, Tab 15

56. Finally, the Appellant‘s own behaviour suggests that, when he wants to, he understands

that the MCIA is not limited to cases involving the City‘s financial interests. On May 11 and 12,

2010, City Council considered a report by the Integrity Commissioner, recommending a

reprimand, that the Appellant had violated the Code of Conduct by disclosing confidential

Council matters on the radio. When the matter came before Council, the Appellant declared his

conflict of interest, absented himself from the chamber and neither spoke to nor voted on

Council‘s decision to receive the Integrity Commissioner‘s Report and to impose the reprimand.

Supplementary Affidavit of Paul Magder at paras. 21-23, May 8, 2012, EB, Tab 4, pp. 112-113

D. The Appellant’s Right To Be Heard Was Not Violated

57. The Appellant suggests that his procedural fairness rights would have been violated had he

been barred from participating in the February 7, 2012 Council meeting. However, the Appellant

had at least two opportunities to be heard. During her investigation, the Integrity Commissioner

gave the Appellant ―an opportunity to respond…in writing‖ to the complaint. Subsequently, she

met with the Appellant and his assistant to discuss the allegations prior to issuing the August 12,

2010 report. And thereafter, he ignored 5 separate letters from the Integrity Commissioner. The

Appellant conceded these meetings and correspondence on cross-examination.

Integrity Commissioner, Report on Violation of Code of Conduct, attached to the Affidavit of Paul Magder,

March 9, 2012, EB, Tab 1A, pp. 8-37; Cross-Examination of Rob Ford, 5 September 2012, Record of

Proceedings, pp. 95:31 – 109:7, RC, Tab 1E, pp. 23-37

18

58. The Appellant also could have challenged the Integrity Commissioner‘s report or

Council‘s subsequent August 25, 2010 order by bringing an application for judicial review. He

chose not to do so. Given the Appellant‘s failure to respond when given numerous opportunities,

his belated assertions of procedural fairness ring hollow. In any event, even the most robust

interpretation of audi alteram partem does not include the right to vote on a decision of a

government body as to whether one should be disciplined.

59. The Appellant‘s reliance on the opinions of Professor Mullan and Justice Cunningham (at

AF, paras. 48-50) underscore the futility of his arguments. Professor Mullan and Justice

Cunningham have suggested that the MCIA be amended to permit councillors to speak to matters

for which the councillor is being sanctioned under the Code of Conduct. The fact that these

experts have suggested amendments underscores that the Appellant‘s argument is based on law as

he wishes it to be, not as it is. Unless the Appellant is suggesting that this Court engage in law

reform and rewrite the MCIA, the Appellant‘s arguments belong in Queen‘s Park — not in this

Honourable Court. As Hackland R.S.J. respectfully noted, ―I would regard these considerations

as requiring study and possibly law reform, but they cannot provide a basis for restricting clear

statutory decisions.‖

Reasons for Decision at para. 24, AB&C, Tab 3, pp. 17-18

III. THE DOCTRINE OF COLLATERAL ATTACK BARS THE APPELLANT’S ARGUMENT

60. The Appellant‘s argument that the initial sanction to repay the $3,150.00 was ultra vires

depends upon a finding that the City of Toronto and the Integrity Commissioner have acted

illegally. The Appellant made no challenge to the August 12, 2010 report or the August 25, 2010

decision, which was his right. The accusation of illegal behaviour is today made, years later, in a

separate proceeding. Neither the City nor the Integrity Commissioner, however, were made a

19

party to the Application. They are not able to defend themselves. It is exactly this sort of

situation that the doctrine of collateral attack is designed to prevent.

61. The doctrine of collateral attack bars back door jurisdictional challenges. In Wilson v. The

Queen, Justice McIntyre explained that it was ―well settled‖ that:

[A]n order may not be attacked collaterally and a collateral attack may be described as an

attack made in proceedings other than those whose specific object is the reversal,

variation, or nullification of the order or judgment. Where appeals have been exhausted

and other means of direct attack upon a judgment or order, such as proceedings by

prerogative writs or proceedings for judicial review, have been unavailing, the only

recourse open to one who seeks to set aside a court order is an action for review in the

High Court where grounds for such a proceeding exist. Without attempting a complete list,

such grounds would include fraud or the discovery of new evidence.

Wilson v. The Queen, [1983] 2 S.C.R. 594 at 599, RA, Tab 16; see also Garland v. Consumers’ Gas Co.,

[2004] 1 S.C.R. 629 at para. 71, RA, Tab 17

62. While the doctrine of collateral attack is most frequently invoked in relation to court

orders and judgments, it also applies to administrative orders. Indeed, the courts have frequently

invoked the doctrine of collateral attack where a party sought to challenge the validity of a City

order in subsequent enforcement proceedings.

R. v. Hoy, [2008] O.J. No. 982 at paras. 7-9 (O.C.J.), RA, Tab 18; R. v. Beattie, [2007] O.J. No. 4377 at

paras. 6-13 (O.C.J.), RA, Tab 19; R. v. Jardine, [2006] N.B.J. No. 288 at para. 31 (Q.B.), RA, Tab 20

See R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 at para. 60, RA, Tab 21

63. The doctrine of collateral attack applies here. City Council ordered the Appellant to repay

the $3,150.00. The Appellant could have sought a judicial review of Council‘s decision. Indeed,

there are examples of applicants challenging resolutions or by-laws adopted by Council on

grounds that the by-law or resolution was ultra vires.

See David Mullan, Memo from the Integrity Commissioner, September 21, 2006, at p. 9, online:

http://www.toronto.ca/integrity/pdf/bellamy-recs-council-rep-sept21-06.pdf, RA, Tab 34 (―Now that the role

of the Integrity Commissioner and the Council in dealing with the Integrity Commissioner‘s reports has been

given a statutory basis in the City of Toronto Act, 2006, it is my sense that the process would, in appropriate

instances, give rise to a right to make an application for judicial review under the Judicial Review Procedure

Act.‖)

See, e.g., Holyday v. Toronto (City), [2010] O.J. No. 3083 (Div. Ct.), AA, Tab 7; SOS - Save Our St. Clair

Inc. v. Toronto (City), [2005] O.J. No. 4307 at para. 4 (S.C.J.), RA, Tab 22; Canadian Institute of Public

20

Real Estate Companies v. Toronto, [1979] 2 S.C.R. 2, RA, Tab 23 (application for judicial review of City by-

law)

64. The Appellant knew — or ought to have known — that he could bring an application for

judicial review of the Integrity Commissioner‘s August 12, 2010 report or Council‘s August 25,

2010 order.5 In a previous report concerning an unrelated violation of the Code of Conduct by the

Appellant, the report explained that ―[a] Member of Council may apply for judicial review of

Council‘s decision to adopt the finding of the Integrity Commissioner and the imposition of a

sanction.‖ The Appellant testified that he recalled reading this report, although he could not recall

reading those words.

Auditor General and Integrity Commissioner, ―Councillor Using Personal Funds for and Failing to Report

Office Expenses – Sanctions,‖ December 3, 2007, attached to Supplementary Affidavit of Paul Magder, May

8, 2012, EB, Tab 4G, pp. 171-175; Cross-Examination of Rob Ford, 5 September 2012, Record of

Proceedings, pp. 150:27-153:22, RC, Tab 1F, pp.38-41

65. The Appellant chose to ignore the order. Only now, in independent proceedings under the

MCIA does he impugn its validity. This is precisely what the doctrine of collateral attack was

intended to prevent.

IV. MAYOR FORD’S PECUNIARY INTEREST WAS NOT REMOTE OR INSIGNIFICANT

66. The Appellant argues that Hackland R.S.J. ought to have applied s. 4(k) of the MCIA,

which provides that s. 5 does not apply where the pecuniary interest ―is so remote or insignificant

that it cannot reasonably be regarded as likely to influence the member.‖ The question for the

Court, as the Divisional Court stated in Tuchenhagan v. Mondoux, is as follows: ―does the matter

to be voted upon have a potential to affect the pecuniary interest of the municipal councillor?‖

MCIA, supra, s. 4(k)

Tuchenhagan v. Mondoux, supra at para. 32 (Div. Ct.), AA, Tab 11

5 Not only did the Appellant have a right to seek judicial review of Council‘s order, if successful, he would have had

the right to apply to Council for reimbursement of his legal costs up to $20,000.00. See Code of Conduct Complaint

Protocol for Members of Council, s. 11(3), online at 7-8: http://www.toronto.ca/integrity/pdf/complaint-protocol.pdf,

RC, Tab 3, p. 104. The Appellant, however, was not aware of this fact either.

21

67. Far from asserting that $3,150.00 was too insignificant or remote an interest, the Appellant

acknowledged in his speech to City Council the significance of compelling him to reimburse such

a sum out of his ―own pocket‖. The $3,150.00 certainly mattered to him.

Cross-examination of Robert Ford, June 28, 2012 at pp. 80:21-82:24,; pp. 101:14-102:4, , RC, Tabs 2D, 2E,

pp. 21-22, 23-24

68. Hackland R.S.J. considered whether the s. 4(k) exception applied, but ultimately

determined that it did not. He held:

While s. 4(k) appears to provide for an objective standard of reasonableness, I am

respectfully of the view that the [Appellant] has taken himself outside of the potential

application of the exemption by asserting in his remarks to City Council that personal

repayment of $3,150.00 is precisely the issue that he objects to….

Reasons for Judgment at para. 54, AB&C, Tab 3, pp. 28-29

69. The Appellant takes issue with this holding. The Appellant asserts that Hackland RSJ

―makes no mention whether the amount of money is, or was, objectively viewed, to be regarded

as likely to influence the appellant in voting…‖ (AF, para. 53).

70. This is a curious statement. Hackland R.S.J. acknowledged that in some cases the issue

will have to be determined objectively, but that the Appellant‘s own statements had made

successful resort to this exemption impossible. It was unnecessary for the Court to determine

whether the sum of $3,150.00 could reasonably be viewed as likely to influence the Appellant

because the Appellant himself conceded that it did: the reason he spoke to the matter was because

he so strongly objected to paying the $3,150.00. Since it did influence him, it necessarily follows

that it could reasonably be regarded as doing so.

71. Even if the Appellant had not conceded that the $3,150.00 affected his decision to speak to

and vote on the matter, he could not have passed the objective test. The sum is simply far from

insignificant. And the Appellant in his evidence nowhere suggests that it was.

22

72. In Mino v. D’Arcey, a case on which the Appellant relies (AF, para. 52, 56), the

respondent member of Council was the owner of a company that made a $300 profit as a result of

a contract that it entered into with the City. The respondent argued that $300 was too

insignificant an amount to result in a contravention of the Act. The Court, however, held that

―while $300 might well be an insignificant amount to the respondent,‖ the standard was an

―objective one,‖ and that ―certain ratepayers of Howick Township might not consider that amount

in any way insignificant….‖

Mino v. D’Arcey, [1991] O.J. No. 411 at para. 29 (Gen Div.), AA, Tab 14

73. As in Mino v. D’Arcey, the sum at issue — $3,150.00 — cannot be described as an

―insignificant‖ sum. It takes a long time and a good deal of hard work for an ordinary Canadian

to save up $3,150.00. Indeed, the average weekly wage for an Ontarian is $896.61. The average

property tax for a $400,000 house in Toronto is $2,400.00.

CBC News, ―Ontario lags in weekly earnings‖ (May 31, 2012), online:

http://www.cbc.ca/news/canada/toronto/story/2012/05/31/weekly-earnings-march.html, RA, Tab 35

City of Toronto, Budget Committee Presentation at p. 7, online:

http://www.toronto.ca/budget2011/pdf/presentation_2011cva_taxbc.pdf, RA, Tab 36

74. And while the Appellant suggests that if Hackland R.S.J. had applied the objective test,

the result would have been different, the Appellant has failed to cite a single case or refer to any

evidence that supports his position. The Appellant argued, and repeats in his factum, that he

never received the money and obtained no benefit from it. That is untrue. He improperly

solicited money for his private charity (that bears his name and that he uses in his campaign).

That is his benefit. And by speaking to and voting on the matter the Appellant further benefited

by saving $3,150.00 he would otherwise have to re-pay 6

6 The Appellant has belatedly raised an additional issue, which was not argued in the Court below, in a letter of

December 17, 2012. The Appellant has suggested that the MCIA does not apply by virtue of s. 4(i), which provides

that ―s. 5 does not apply to a pecuniary interest … in respect to an allowance for attendance at meetings or any other

allowance, honorarium, remuneration, salary or benefit to which the member may be entitled by reason of being a

23

V. THE APPELLANT’S DECISION TO SPEAK TO AND VOTE AT THE FEBRUARY 7, 2012

COUNCIL MEETING WAS NOT AN ERROR IN JUDGMENT

75. The onus of proving that a contravention of s. 5 of the MCIA was due to an error in

judgment lies with the Appellant.

Kizell v. Bristol, [1993] O.J. No. 3368 at paras. 5-6 (Gen. Div.), RA, Tab 24 (―… there must be before me a

preponderance of evidence that the disqualification arose from an error in judgment. The burden of such

evidence is on the respondent asserting such circumstances.‖)

76. In order to establish the defence of error in judgment, it is necessary that the Appellant

―have proceeded with ‗good faith‘ as to that error of judgment.‖ He must have been ―honest,

forthright and open, acting in complete good faith.‖

Tuchenagen v. Mondoux, supra at para. 65 (Div. Crt) AA, Tab 11; see also Re Jackson and Wall (1978), 21

O.R. (2d) 147 at 8 (Co. Ct.), AA, Tab 15; Campbell v. Dowdall, [1992] O.J. No. 1841 at 10 (Gen. Div.), AA,

Tab 13

77. As the Court noted in Moll and Fisher:

There is no need to find corruption on his part or actual loss on the part of the council or

board. So long as the member fails to honour the standard of conduct prescribed by the

statute, then, regardless of his good faith or the propriety of his motive, he is in

contravention of the statute.

Re Moll and Fisher et al, supra at 4 (Div. Crt), RA, Tab 11

78. Hackland R.S.J. rejected the Appellant‘s error in judgment defence. He held that the

Appellant‘s contravention of the MCIA was the result of ―ignorance of the law and a lack of

diligence in securing professional advice, amounting to willful blindness.‖

Reasons for Decision at para. 58, AB&C, Tab 3, pp. 30-31

79. The Appellant has not shown — and indeed cannot show — that Hackland R.S.J. made a

palpable and overriding error in rejecting the Appellant‘s error in judgment defence. To the

contrary, there was an abundance of evidence that the Appellant‘s contravention of the MCIA was

wanton, reckless and completely lacking bona fides.

member…..‖ The Appellant has not provided any authorities to suggest how this provision — which clearly is

intended to ensure that councillors could discuss and set their salary and their office expenses — could apply to the

instant case.

24

A. Error in Judgment Cannot Be Based on Ignorance of the Law

80. Hackland R.S.J.‘s conclusion that ignorance of the law based on lack of due diligence and

wilful blindness cannot amount to a bona fide error in judgment is consistent with the well-

established rule at common law that ignorance of the law by a person who commits an offence is

not an excuse for committing that offence.

Reasons for Decision at para. 58, AB&C, Tab 3, pp. 30-31

See Lévis (City) v. Tétrault; Lévis (City) v. 2629-4470 Québec inc., [2006] 1 S.C.R. 420 at para. 22, RA, Tab

25

81. Indeed, all of the MCIA cases in which the courts have accepted the defence of error in

judgment involved either a mistake of fact or a mistake in applying the law to the facts. The

Appellant‘s error-in-judgment defence — that he believed that the MCIA applied only to cases

where the City had a financial interest — is based solely on mistake of law. If the Appellant‘s

argument is accepted, it would represent the first time that the error of judgment defence based on

pure mistake of law was accepted.

See, e.g., Jafine v. Mortson, [1999] O.J. No. 971at paras. 14-16, 32 (Gen. Div.), RA, Tab 26 (court found an

error in judgment because the respondent was able to articulate a good faith error of fact — supported by

expert evidence — as to why there was no pecuniary interest)

Meister v. Brunsch, [1993] S.J. No. 147at 5-8 (Q.B.), RA, Tab 27 (error in judgment found because the court

accepted the respondent‘s explanation of error in fact, i.e., that he genuinely believed that his matter had been

dealt with before he returned to the Council meeting)

Campbell v. Dowdall, supra at 4, 9 (Gen. Div.), AA, Tab 13 (error in judgment found because of error in

fact, i.e., ―it was debatable whether the disposition of the matter one way or another produced any financial

advantage to the owner….‖)

B. The Appellant Deliberately Failed To Inform Himself About his Obligations

Under the MCIA Despite Being Bound — and Having Sworn — To Do So

82. The availability of the defence of error in judgment will depend, in part, on the

Appellant‘s experience and past conduct. ―The experience of a member of council or local board

…. is a proper consideration for the court when determining the availability of good faith error in

judgment.‖

Baillargeon v. Carroll, supra at para. 87 (S.C.J.), AA, Tab 9

25

See also Tuchenhagan v. Mondoux, supra at para. 63 (Div. Ct.) AA, Tab 11 (the councillor ―had been a

member of the City Council for almost twelve years. He should have been aware of the need to avoid placing

himself in a position of conflict.‖)

83. The Appellant is an experienced member of City Council. He has been Mayor since 2010.

He was first elected to City Council in 2000 and re-elected in 2003, 2006 and 2010.

Cross-examination of Robert Ford, June 28, 2012, p. 3:4-3:25; p. 8:8 – 8:13, RC, Tab 2A, pp. 57, 62

84. Each time the Appellant was elected, he signed the Declaration of Office. The Declaration

includes an ―oath of office‖ that he will ―disclose any pecuniary interest direct or indirect in

accordance with the MCIA.‖ Despite that solemn oath, the Appellant did not bother to find out

what these words meant:

Q. And do you remember these words from section 4 of the declaration, "I will disclose

any pecuniary interest direct or indirect in accordance with the MCIA", which is the

Municipal Conflict of Interest Act, yes?

A. Yes.

Q. And you swore that?

A. Yes.

Q. Did you mean those words when you swore them?

A. Yes.

Q. What steps if any to find out what the Municipal Conflict of Interest Act required of

you?

A. None.

Q. None, that's your answer?

A. Yes.

Cross-examination of Robert Ford, September 5, 2012, pp. 48:10-50:21, RC, Tab 1A, pp. 1-3

Cross-examination of Robert Ford, June 28, 2012, pp. 3:16 – 3:17; p. 8:8 – 8:13; pp. 16:19-18:25, RC, Tabs

2A -2B, pp. 57, 62, 67-69

85. By his own admission, the Appellant failed to read the MCIA, which he swore to uphold

each time he took office. The first time he read s. 5 of the Act was during his in court cross-

26

examination on September 5, 2012. He drew a peculiar distinction between reading the Act and

having the Act read to him by Respondent‘s counsel:

A. I've never read that before.

Q. You had to have read that before, that's the Municipal Conflict of Interest Act.

A. I've never read this before.

Q. I read it to you last day in cross-examinations in June.

A. You've read it to me but I‘ve never read it.

Cross-examination of Robert Ford, September 5, 2012, pp. 55:12-58:21; pp. 60:29-61:26, RC, Tab 1B, pp. 9-

10

86. The Appellant also neglected to read the City Council Handbook, which is given to all

Councillors each time they are elected, and explains the MCIA‘s requirements in easy-to-

understand lay language. The Appellant testified that he did not receive (or did not remember

receiving) a copy of the 2006-2010 City Council Handbook (he cannot say which is true); he did

not receive (or did not remember receiving) a copy of the 2010-2014 City Council Handbook (he

cannot say which is true); he never attended a City Council training session for new Councillors

because he believed that he did not need the training:

Q. The city distributes to councillors and the mayor when they are elected something

called The Handbook, is that correct?

A. I don't remember getting one, if you say we do, but I don't remember ever getting a

handbook.

Q. Okay. You have no memory of getting it, studying it or reading it?

A. No.

Q. I'm also going to suggest to you that when you were first elected to City Council you

had to attend an orientation for new councillors, do you remember that?

A. You don't have to attend it and no, I did not attend it.

Q. So the city offered you an orientation meeting to explain your new role as City

Councillor?

27

A. Umm-hmm.

Q. Yes?

A. Yeah there's orientations for new councillors, not all the councillors attend.

Q. And you didn't attend?

A. No, I did not.

Q. Do some councillors attend even when they're re-elected and not new councillors?

A. Some councillors have experience already and get re-elected so there's no need to

attend, some councillors like myself is the son of an MPP knows how the Provincial

government works and knows how City Hall works and knows how the Federal

government works, so I didn't think I needed to attend.

Cross-examination of Robert Ford, September 5, 2012, pp. 49:10-50:21, RC, Tab 1A, pp. 2-3

See contra Jaffary v. Greaves, supra at paras. 42-45 (S.C.J.), RA, Tab 12 (where the Court found error in

judgment because the councillor, despite violating the Act, had familiarized himself with the MCIA and the

guidebook provided to new members of council, which showed honesty and good faith)

87. As Hackland R.S.J. bluntly observed:

[The Appellant] has served on City Council for 12 years, the last two as Mayor. Yet, he

acknowledged, that prior to this proceeding he had never read or familiarized himself with

the MCIA. Moreover, the [Appellant] admitted that he never sought out legal advice as to

his entitlement to speak or vote on the Code of Conduct issues before Council on February

7, 2012…He stated that he did not see the need to attend the briefing sessions offered by

the MCIA to newly elected councillors, or to read the councillor‘s handbook which

addressed conflicts of interest.

Reasons for Decision at para. 55, AB&C, Tab 3, p. 29

C. The Appellant Had No Procedures for Identifying Conflicts of Interest

88. Given the Appellant‘s experience on City Council, he ought to have had in place a

procedure to identify conflicts of interest. But he confirmed that his office had no protocol or

procedures whatsoever to identify or to advise him of conflicts of interest. He had never sought

legal advice on such issues:

A. No, a few times I've been involved with the Integrity Commissioner.

Q. A few. Did you ever seek advice from her about conflicts of interest?

A. No.

28

Q. What steps, if any, did you ever take to find out where you could get free advice on

conflicts of interest or conflict of interest issues arising from the Municipal Conflict of

Interest Act or the member's Code of Conduct?

A. I did not.

[…]

Q. Right. You had no procedure in your office for identifying conflicts?

A. No, I don't have a lawyer on staff.

Q. And none of your staff was specifically tasked with the job of watching for conflicts

knowing what your full financial interests were?

A. No, they watch for money most importantly, it's up to myself to declare a conflict for

myself.

Cross-examination of Robert Ford, September 5, 2012, pp. 59:15-61:26; 77:20-77:31, RC, Tab 1B, 1D, p. 8-

10, 18

Cross-examination of Robert Ford, June 28, 2012, pp. 30:13-31:17, RC, Tab 2C, pp. 78-79

89. It was reckless for the Appellant not to have a policy in place to identify potential

conflicts. Instead, the Appellant claims that he relies exclusively on the City Clerk and City

Solicitor sua sponte to identify conflicts of interest for him.

Affidavit of Robert Ford, June 5, 2012 at para. 24, EB, Tab 3, p. 106

Cross-examination of Robert Ford, June 28, 2012 at p. 16:19-16:25; p. 23:12-23:22; p. 29:10-29:25, p. 32:4-

32:10, p. 136:16-136:23, RC, Tabs 2B, 2C, 2F, pp. 67, 71, 77, 80, 100(stating that ―Legal staff usually tells

you if you have a conflict or not,‖ and that it is ―up to … legal staff‖ to identify conflicts of interest).

90. Such measures are woefully deficient, for it would require the City Clerk or City Solicitor

(whose client is the City and not individual Councillors) to be intimately familiar with the

personal and business affairs of each councillor. This is an unrealistic and unbelievable

expectation. Further, and as Hackland R.S.J. noted, the Appellant himself conceded that it is not

the responsibility of the City Clerk or City Solicitor to identify conflicts for individual

Councillors:

Q. Now your lawyer put to you and you'll agree that the City Clerk and the City Solicitor

have no obligation in law to give you advice on conflicts or anything else, correct?

29

A. No, they're not obligated to.

Q. Not part of their job description?

A. I don't know what they're job description is.

Cross-examination of Robert Ford, September 5, 2012, p. 68:16-68:32, RC, Tab 1C, p. 16

Reasons for Decision at para. 55, AB&C, Tab 3, p. 29

91. This is not to say that the advice of the City Solicitor would be irrelevant to the inquiry.

Indeed, there are cases in which advice from the City Solicitor or a lawyer was a key factor in

determining whether the Councillor‘s contravention of the MCIA was a bona fide error in

judgment.

Re Edwards and Wilson, [1980] O.J. No. 3873 at para. 35 (High Crt. J., Div. Crt.), RA, Tab 28 (where a

respondent seeks a legal opinion and relies on it, this is a factor that courts will consider in determining

whether the error of judgment was made in good faith)

Sheehan v. Hart, supra at paras. 14-20 (Gen. Div.), RA, Tab 15 (where Councillor had relied on opinion

from City Solicitor)

But see Re Blake and Watts (1973), 2 O.R. (2d) 43 at 8-9 (Co. Crt), AA, Tab 8 (holding that the respondent‘s

reliance on a legal opinion that there was no conflict was not sufficient to show error in judgment)

92. However, in cases where courts have considered legal advice given by the City Solicitor

or other counsel, it was incumbent on the Councillor to seek out and obtain advice once the

Councillor himself or herself identified that he had a potential conflict of interest. The Appellant

failed to do that here. The Appellant concedes that he has no recollection of seeking legal advice

— or any advice — in relation to either the August 25, 2010 or the February 7, 2012 Council

meetings.

Cross-examination of Robert Ford, June 28, 2012 at pp. 32:20-34:17; p. 35:10-35:23; p. 36:24-38:20, p.

88:17-88:23, RC, Tabs 2C, 2D, pp. 80-84, 88

93. In Begin v. McInnis, Justice Hogg held that a failure to seek a legal opinion may amount to

willful blindness and therefore would not constitute a bona fide error in judgment. Having found

a contravention of the Act, Justice Hogg rejected the respondent‘s defences and held:

I find that the explanation given in and of itself as to bona fides is so untenable that I reject

it. At the very least, the respondent in not seeking legal advice was deliberately and

30

wilfully blind. It would be difficult to conceive of a solicitor who, having learned of the

facts, would not have advised the respondent that he was in a conflict of interest.

Begin v. McInnis, [1991] O.J. No. 499 at 4 (Gen. Div.), RA, Tab 29

D. The Appellant Ignored Cautions About His Conflict of Interest

94. Prior to February 7, 2012, the Appellant had previously deliberately disregarded the Act.

During an August 25, 2010 meeting, Council considered the Integrity Commissioner‘s finding

that the Appellant had violated the Code of Conduct, and ordered him to reimburse the $3,150.00

in donations he improperly solicited for his Football Foundation. At that meeting, then-Speaker

Sandra Bussin warned the Appellant that he had a conflict of interest in the matter. In her

affidavit, Ms. Bussin states:

Because the matter involved Councillor Ford‘s conduct and made him personally liable

for $3,150.00, it was my opinion that Councillor Ford had a direct and personal interest in

Item CC52.1 which amounted to a conflict of interest that prohibited him from speaking

on or voting on the motion.

As a Councillor bound by the City‘s Code of Conduct, it was Councillor Ford‘s

responsibility to declare that he had a conflict of interest because of his pecuniary interest

in the motion. Nevertheless, as Speaker, when I realized that Councillor Ford intended to

vote on the motion, I alerted him directly to his conflict of interest. I said to him in a clear

voice:

―Councillor Ford. This matter deals with an issue regarding your conduct. Do you intend

to declare a conflict? You are voting? Okay.‖

I have attached a transcript of the exchange to this affidavit as Exhibit ―A‖.

I alerted Councillor Ford to his conflict of interest in the hope and expectation that he

would declare his conflict and not vote on the motion. Having ignored my warning, there

was nothing more that I could do.

Councillor Ford did not seem surprised when I told him that he had a conflict of interest.

Instead, he just nodded to me, indicating that he understood what I had said but that he

was voting on the item. He then proceeded to do so.

Affidavit of Sandra Bussin at paras. 7-10, May 8, 2012, EB, Tab 5, pp. 377-378

31

95. The Appellant conceded this interaction under cross-examination. He claimed that he was

justified in ignoring the Speaker because of the possibility that she was motivated by political

considerations:

…another councillor coming up, sometimes it‘s political. Sometimes they don‘t want you

to vote against it, so they‘ll make up a story or do whatever, and say, ―you have got a

conflict or…‖

There is a lot of politics that get played down there. So no, I wouldn‘t listen to another

councillor to tell me if I have a conflict or not.

Cross-examination of Robert Ford, June 28, 2012 at p. 86:19-87:14,RC, Tab 2D, pp. 94-95; Cross-

examination of Robert Ford, September 5, 2012, p. 109:19-109:29, Tab 1E, p. 37

96. Hackland R.S.J. found that the Appellant ―was well aware that he may have been in a

conflict situation because Speaker Bussin had specifically warned him he was in a conflict when

he voted on a motion concerning these same issues … when the matter came before Council on

August 25, 2010.‖

Reasons for Decision at para. 55, AB&C, Tab 3, p. 29

97. At best, this is wilful blindness; at worst, it is outright intransigence. Either way, it is not

an error in judgment.

E. Mayor Ford Had Previously Declared Conflicts Under the MCIA

98. The Appellant had previously declared conflicts of interest relating to other issues and

abstained from speaking to and voting on those matters. The record in these proceedings shows

nine specific instances in which the Appellant declared a conflict of interest with respect to a

matter being debated in Council or with respect to a report.

Supplementary Affidavit of Paul Magder at paras. 37-38, May 8, 2012, EB, Tab 4, pp.116-117

99. When this record is considered against the backdrop of the Appellant‘s August 25, 2010

vote, a clear picture emerges: the Appellant had a history on other issues of complying with the

Act and a history on this particular issue of flouting the Act.

32

F. The Appellant’s Contravention of the MCIA Forms Part of a Pattern of

Misconduct, Which Undermines Assertions of Bona Fides

100. In Re Jackson and Wall, despite the respondent‘s compelling argument for the defence of

―error in judgement‖, Justice Costello found it determinative that the Councillor‘s course of

action was a continuing one.

Re Jackson and Wall, supra at page 8 (Co. Ct.), AA, Tab 15 (―I find it impossible to call the deliberate and

continued promotion over several months of The George Street extension by the respondent to the benefit of

Blair Road and the detriment of neighbouring street to be an error in judgment.‖)

101. Similarly, in this case, the Appellant‘s assertion of a bona fide error in judgment is

unavailing because his conduct forms part of a pattern of behaviour in which the Appellant had

repeatedly ignored the findings of the Integrity Commissioner adverse to him, and ignored the

decisions of City Council applying the Code of Conduct concerning this $3,150.00. He was

simply not going to yield.

102. The Appellant ignored Council‘s August 25, 2010 order requiring him to reimburse the

lobbyists. Between August 31, 2010 and October 4, 2010, the Integrity Commissioner sent five

requests to the Appellant asking for confirmation that City Council‘s Order had been carried out.

The Appellant ignored each and every one of those letters.

Affidavit of Paul Magder at para. 15, March 9, 2012, EB, Tab 1

103. The only reason that the February 7, 2012 matter came before Council was because the

Appellant had — for more than 17 months — completely ignored and refused to comply with

Council‘s previous August 25, 2010 order. This pattern of intransigence runs contrary to the

concept of bona fides.

104. The Appellant‘s intransigence towards the Code of Conduct was not limited to Council‘s

order to reimburse the $3,150.00. The Respondent‘s supplementary affidavit describes numerous

examples of the Appellant‘s flagrant disregard for the Code of Conduct and this Integrity

33

Commissioner. His conduct in this case ought to be considered in light of this previous

behaviour.

Supplementary Affidavit of Paul Magder at paras. 4-35, May 8, 2012, EB, Tab 4, pp. 109-115

105. In Calgary Roman Catholic Separate School District No. 1 v. O'Malley, the Alberta Court

of Queen‘s Bench considered a school board trustee‘s history of violating applicable rules of

conduct in the course of declaring his seat vacant for contraventions of conflict of interest

legislation:

The prudent and safe course for Mr. O'Malley would have been to abstain from discussing

or voting on a motion aimed solely at him and which could affect him monetarily. Mr.

O'Malley likely was driven by … stubbornness, a foolhardy conviction that the rules

would not be enforced against him, a righteous belief that his cause was worth the risk or

that the resulting publicity would be useful to him. None of these factors excuses Mr.

O'Malley from the consequences of his actions.

Calgary Roman Catholic Separate School District No. 1 v. O'Malley, [2007] A.J. No. 1065 at paras. 87, 89,

114, and 146-147 (Q.B.), RA, Tab 30.

106. Similar to the school trustee in the O’Malley case, the Appellant‘s history of violating the

Code of Conduct as well as his complete failure to make himself aware of his responsibilities as a

member of Council (despite his long tenure on Council) demonstrate an attitude that the rules do

not apply to him.

G. Hackland R.S.J.’s Factual Findings Preclude an Error in Judgment Defence

107. The Appellant asserted in the Court below (for the first time) that he believed that the

MCIA applied only where the City had a financial interest. The Appellant argues that this honest

but mistaken belief is the reason he spoke to and voted at the February 7, 2012 Council meeting.

It is unbelievable that someone who has never read the MCIA, read about the MCIA or sought

legal advice about it could arrive at such a nuanced position. The Respondent has argued that the

Appellant‘s explanation is incredible and that his decision to speak to and vote on February 7,

34

2012 was the result of a stubborn sense of entitlement and disregard for the ethical rules meant to

ensure that private interests do not affect City decisions.

108. The Appellant ignored the MCIA not because he believed that he was lawfully exempted

from its requirements, but because he felt that the MCIA, the Integrity Commissioner and Council

had created an unfair obligation and that this unfairness was particularly harsh because he was

trying to do good for high school football players:

I think that the thing that bothers me is that I had to pay it back personally. It‘s not

personal money. I don‘t benefit from this. I don‘t make a dime on this. I actually lose

money doing this. It costs me a lot to stuff the envelopes, pay for stamps, print the

letterhead. The money goes directly to the Toronto Community Foundation.

So when she said I had to pay it out of my own pocket, I don‘t see why I have to pay it out

of my own pocket.

…Why should I have to pay it back out of my own pocket when I don‘t benefit from it

whatsoever?

Cross-examination of Robert Ford, June 28, 2012, pp. 80:21-82:24,, RC, Tab 2D, pp. 88-90

109. Hackland R.S.J.‘s factual findings support the Respondent‘s arguments:

It is apparent that the [Appellant] was and remains focused on the nature of his football

foundation and the good work that it does. He stated in evidence that this was his own

―personal issue‖ that did not involve the financial interests of the City. He, therefore, felt

that he was entitled to ―clear the air‖ as he said, by speaking against the Integrity

Commissioner‘s report, or at least her recommendation that he personally reimburse the

funds he had solicited from donors. The Integrity Commissioner‘s report, itself, details a

confrontational relationship with the [Appellant] and a stubborn reluctance on the

respondent‘s part to accept that his activities concerning his football foundation are

properly subject to the Code of Conduct. It would appear that the [Appellant’s] actions

at the February 7, 2012 Council Meeting, in speaking and voting on resolutions

concerning the Integrity Commissioner’s factual findings in her report and her

recommended sanction, was one last protest against the Integrity Commissioner’s

position that he profoundly disagreed with.

Reasons for Decision at para. 56, AB&C, Tab 3, pp. 29-30 [emphasis added]

110. The Appellant has not shown — nor even attempted to try to show — that this factual

finding is incorrect. If it is correct, then the defence of error in judgment is effectively off the

table.

35

H. The Appellant Has Not Shown Any Error in the Decision Below

111. The Appellant argues on appeal that Hackland R.S.J. erred in rejecting the error-in-

judgment defence. He does not, however, explain how Hackland R.S.J. erred other than to simply

re-assert that the Appellant‘s purported explanation for why he erred — he thought the MCIA

applied only to cases where the City had a financial interest — was a reasonable error and made

in good faith (AF, paras. 58-64). He provides no explanation for the numerous factors, described

above, that militated in favour of a finding of recklessness, willful blindness and ignorance of the

law.

112. Moreover, the Appellant‘s purported understanding of the MCIA is flatly contradicted by

the Appellant‘s own words and conduct. At the May 12, 2010 meeting of Council, the Appellant

declared a conflict of interest in a report presented to the Integrity Commissioner ―Report on

Violation of Code of Conduct by Councillor Ford.‖ The Appellant declared a conflict of interest

in that Report:

Ford: I have to declare a conflict in this. I wanted to let you know that. I haven‘t spoke to

it but I have to declare a conflict so I have to excuse myself.

Speaker: And your conflict is what? What is the nature of your conflict?

Ford: My conflict is the Report‘s about Councillor Ford and I cannot vote in favour or

against, it‘s a conflict of interest so I have to remove myself from the Chamber. Thank

you.

Supplementary Affidavit of Paul Magder, May 8, 2012 at para. 23, EB, Tab 4, p. 113

113. In the Appellant‘s own words, the subject matter was Rob Ford and he therefore could not

speak to the matter or vote on it. This is a correct understanding of the Act. The City had no

financial interest in the report. On cross-examination, the Appellant initially stated that the City

Solicitor told him he had a conflict of interest. When confronted, he resiled from that position

and testified that he could not be sure. He testified that he believed he had been told to do so by

the City Solicitor, but he suddenly could not remember:

36

Q. All right. So you declared a conflict but again I just can't see how the city has a

financial interest in whether or not you are the subject of a reprimand.

A. Because I was told by, I was told by Anna Kinastowski that - to declare, and I

remember this distinctly, that she had said you've got an interest in this.

[…]

Q. Are you able to tell me anything about why there is a financial interest in the city to

this?

A. I declared it because she told me to declare a conflict and that's why I did that.

Q. And did you at that point when she declared, gave you that advice and you declared the

conflict did it cause you to stop and think, gee, she's told me I'm in conflict but obviously

there's no city financial interest maybe I'm wrong in the way I've been approaching this all

these years?

A. No.

Q. It didn't cause you one little quip of twinge?

A. No.

Q. You just didn't think?

A. I think.

[…]

Q. Is it fair to say that you really don't remember whether it was [the City Solicitor] or

somebody else or no one at all that told you?

A. No, I think, again, I don't remember exactly but I'm pretty sure that she or the clerk or

maybe it wasn't legal there was a clerk that told me to declare a conflict.

Q. Pretty sure means you just don't know, correct?

A. I don't know, I'm not quite sure.

Cross-examination of Robert Ford, September 5, 2012, pp. 203:11-214:30, RC, Tab 1G, pp. 42-53; Cross-

examination of Robert Ford, June 28, 2012, p. 136:16- 137:16, RC, Tab 2F, pp. 100-101

114. In any event, the Appellant‘s May 12, 2010 declaration, born either of advice from

someone or Mayor Ford‘s own belief, reflected the correct interpretation of the MCIA. Despite

having a correct understanding of the MCIA (at one time), he spoke and voted at the February 7,

2012 Council debate. It did not occur to Mayor Ford that his (new) belief that conflicts of interest

37

are limited to the City‘s financial interests might be incorrect and that his former belief was

correct. At a minimum, this conduct is reckless.

Cross-examination of Robert Ford, September 5, 2012, pp. 203:11-214:30, RC, Tab 1G, pp. 42-53

115. As Hackland R.S.J. observed:

In view of the [the Appellant‘s] leadership role in ensuring integrity in municipal

government, it is difficult to accept an error in judgment defence based essentially on a

stubborn sense of entitlement (concerning his football foundation) and a dismissive and

confrontational attitude to the Integrity Commissioner and the Code of Conduct. In my

opinion, the [Appellant‘s] actions were characterized by ignorance of the law and a lack of

diligence in securing professional advice, amounting to willful blindness. As such, I find

his actions are incompatible with an error in judgment.

Reasons for Decision at paras. 45-59, AB&C, Tab 3, pp. 25-31

PART IV – ORDER SOUGHT

116. The Respondent respectfully requests that the appeal be dismissed with costs.

December 24, 2012 ALL OF WHICH IS RESPECTFULLY SUBMITTED

____________________________________________

Clayton Ruby / Nader R. Hasan / Angela Chaisson

38

SCHEDULE ―A‖ – LIST OF AUTHORITIES

Authority

114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2

S.C.R. 241

Amaral v. Kennedy, [2012] O.J. No. 3766 (Div. Crt)

Audziss v. Santa, [2002] O.J. No. 1981 (S.C.J.)

Baillargeon v. Carroll, [2009] O.J. No. 502 (S.C.J.)

Begin v. McInnis, [1991] O.J. No. 499 (Gen. Div.)

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559

Calgary Roman Catholic Separate School District No. 1 v. O'Malley, [2007] A.J. No.

1065 (Q.B.)

Campbell v. Dowdall, [1992] O.J. No. 1841 (Gen. Div.)

Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601

Canadian Institute of Public Real Estate Companies v. Toronto, [1979] 2 S.C.R. 2

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3

Croplife Canada v. Toronto (City), [2005] O.J. No. 1896 (C.A.)

Dorval v. Dorval, [2006] S.J. No. 94 (C.A.)

Garland v. Consumers’ Gas Co., [2004] 1 S.C.R. 629

Holyday v. Toronto (City), [2010] O.J. No. 3083 (Div. Ct.)

Housen v. Nikolaisen, [2002] 2 S.C.R. 235

Jaffary v. Greaves, [2008] O.J. No. 2300 (S.C.J.)

Jafine v. Mortson, [1999] O.J. No. 971 (Gen. Div.)

Kizell v. Bristol, [1993] O.J. No. 3368 (Gen. Div.)

Lévis (City) v. Tétrault; Lévis (City) v. 2629-4470 Québec inc., [2006] 1 S.C.R. 420

Mangano v. Moscoe, [1991] O.J. No. 1257 (S.C.J.)

Meister v. Brunsch, [1993] S.J. No. 147 (Q.B.)

Mino v. D’Arcey, [1991] O.J. No. 411 (Gen Div.)

Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342

R. v. Beattie, [2007] O.J. No. 4377 (O.C.J.)

R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706

39

R. v. Greenbaum, [1993] 1 S.C.R. 674

R. v. Hasselwander, [1993] 2 S.C.R. 398

R. v. Hoy, [2008] O.J. No. 982 (O.C.J.)

R. v. Jardine, [2006] N.B.J. No. 288 (Q.B.)

Re Blake and Watts et al (1973), 2 O.R. (2d) 43 (Co. Crt)

Re Edwards and Wilson, [1980] O.J. No. 3873 (High Crt. J., Div. Crt.)

Re Jackson and Wall (1978), 21 O.R. (2d) 147 (Co. Ct.)

Re Moll and Fisher (1979), 23 O.R. (2d) 609 (Div. Ct.)

Ruffolo v. Jackson, [2010] O.J. No. 2840 (C.A.)

Sheehan v. Hart, [1993] O.J. No. 1726 (Gen. Div.)

SOS - Save Our St. Clair Inc. v. Toronto (City), [2005] O.J. No. 4307 (S.C.J.)

Tuchenhagen v. Mondoux, [2011] O.J. No. 4801 (Div. Crt.)

Turgeon v. Dominion Bank, [1930] S.C.R. 67

Wilson v. The Queen, [1983] 2 S.C.R. 594

Commentary

CBC News, ―Ontario lags in weekly earnings‖ (May 31, 2012)

City of Toronto, Budget Committee Presentation, online:

http://www.toronto.ca/budget2011/pdf/presentation_2011cva_taxbc.pdf

David Mullan, Memo from the Integrity Commissioner, September 21, 2006

Ontario, Legislative Assembly, Official Report of Debates (Hansard) (1 February

1983)

Ruth Sullivan, Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc.,

2008)

40

SCHEDULE ―B‖ – STATUTES AND REGULATIONS

City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

2. The purpose of this Act is to create a framework of broad powers for the City which

balances the interests of the Province and the City and which recognizes that the City must

be able to do the following things in order to provide good government:

1. Determine what is in the public interest for the City.

2. Respond to the needs of the City.

3. Determine the appropriate structure for governing the City.

4. Ensure that the City is accountable to the public and that the process for making

decisions is transparent.

5. Determine the appropriate mechanisms for delivering municipal services in the City.

6. Determine the appropriate levels of municipal spending and municipal taxation for the

City.

7. Use fiscal tools to support the activities of the City.

6. (1) The powers of the City under this or any other Act shall be interpreted broadly so as to

confer broad authority on the City to enable the City to govern its affairs as it considers

appropriate and to enhance the City‘s ability to respond to municipal issues.

7. The City has the capacity, rights, powers and privileges of a natural person for the purpose

of exercising its authority under this or any other Act.

8. (1) The City may provide any service or thing that the City considers necessary or desirable for

the public.

12. (1) If the City has the power to pass a by-law under section 7 or 8 and also under a specific

provision of this or any other Act, the power conferred by section 7 or 8 is subject to any

procedural requirements, including conditions, approvals and appeals, that apply to the

power and any limits on the power contained in the specific provision.

(1.1) For the purpose of subsection (1) and, unless the context otherwise requires, the fact

that a specific provision is silent on whether or not the City has a particular power shall

not be interpreted as a limit on the power contained in the specific provision.

157(1) The City shall establish codes of conduct for members of city council and members of

local boards (restricted definition).

41

(2) Without limiting sections 7 and 8, those sections authorize the City to establish codes

of conduct for members of city council and of local boards (restricted definition) of the

City.

(3) A by-law cannot provide that a member who contravenes a code of conduct is guilty

of an offence.

160(5) City council may impose either of the following penalties on a member of council or 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.

Legislation Act, S.O. 2006, ch.21, Schedule F

64. (1) An Act shall be interpreted as being remedial and shall be given such fair, large and

liberal interpretation as best ensures the attainment of its objects.

Municipal Act, 2001, S.O., Ch. 25

223.3 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to

appoint an Integrity Commissioner who reports to council and who is responsible for

performing in an independent manner the functions assigned by the municipality with

respect to,

(a) the application of the code of conduct for members of council and the code of conduct

for members of local boards or of either of them;

(b) the application of any procedures, rules and policies of the municipality and local

boards governing the ethical behaviour of members of council and of local boards or of

either of them; or

(c) both of clauses (a) and (b).

223.4 (5) The municipality may impose either of the following penalties on a member of council

or of a local board if the Commissioner reports to the municipality 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.

Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50

4. Section 5 does not apply to a pecuniary interest in any matter that a member may have,

42

(i) in respect of an allowance for attendance at meetings, or any other allowance,

honorarium, remuneration, salary or benefit to which the member may be entitled by

reason of being a member or as a member of a volunteer fire brigade, as the case may be;

(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.

5. (1) Where a member, either on his or her own behalf or while acting for, by, with or through

another, has any pecuniary interest, direct or indirect, in any matter and is present at a

meeting of the council or local board at which the matter is the subject of consideration,

the member,

(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and

the general nature thereof;

(b) shall not take part in the discussion of, or vote on any question in respect of the matter;

and

(c) shall not attempt in any way whether before, during or after the meeting to influence

the voting on any such question.

10. (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).

43

Divisional Court File No. 560/12

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RESPONDENT’S CERTIFICATE RESPECTING EVIDENCE

B E T W E E N:

PAUL MAGDER

Applicant (Respondent in Appeal)

-and-

ROBERT FORD

Respondent (Appellant)

RESPONDENT’S CERTIFICATE

The respondent confirms the appellant‘s certificate. The respondent estimates that 3.5 hours will

be required for oral argument.

DATED AT Toronto, Ontario this 24th

day of December.

______________________________

RUBY SHILLER CHAN HASAN Barristers

11 Prince Arthur

Toronto ON, M5R 1B2

CLAYTON C. RUBY (#11682R)

NADER R. HASAN (#54693W)

ANGELA CHAISSON (#62131J)

Tel: (416) 964-9664

44

Fax: (416) 964-8305

1

PAUL MAGDER

Applicant (Respondent in Appeal)

and

Div. Court File No.: 560/12

ROBERT FORD

Respondent (Appellant)

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FACTUM OF THE RESPONDENT

RUBY SHILLER CHAN HASAN

Barristers

11 Prince Arthur Ave.

Toronto, ON M5R 1B2

Clayton C. Ruby (LSUC #11682R)

Nader R. Hasan (LSUC #54693W)

Angela Chaisson (LSUC #62131J)

T: 416.964.9664

F: 416.964.8305

Lawyers for the Respondent