respondent's factum 2

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Court File No. CV-12-448487 ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PAULMAGDER

and

ROBERT FORD

FACTUM OF THE RESPONDENT ROBERT FORD (MOTIONS RETURNABLE AUGUST 24, 2012 AND

APPLICATION RETURNABLE SEPTEMBER 5, 6, 7, 2012)

August 16, 2012 LENCZNERSLAGHTROYCE

TO:

SMITH GRIFFIN LLP Barristers Suite 2600 130 Adelaide Street West Toronto ON M5H 3P5

Alan J. Lenczner, Q.C. (l1387E) Tel: (416) 865-3090 Fax: (416) 865-2844 Email: [email protected] Andrew Parley (55635P) Tel: (416) 865-3093 Fax: (416) 865-2873 Email: [email protected]

Lawyers for the Respondent RUBY SHILLER CHAN LLP Barristers 11 Prince Arthur Avenue Toronto, ON M5R 1B2

Clayton Ruby Nader R. Hasan Tel: (416) 964-9664 Fax: (416) 964-8305

Lawyers for the Applicant

Applicant

Respondent

Court File No. CV-12-448487

BETWEEN:

ONTARIO SUPERIOR COURT OF JUSTICE

PAULMAGDER

and

ROBERT FORD

FACTUM OF THE RESPONDENT ROBERT FORD

PART I - INTRODUCTION

Applicant

Respondent

1. The relief requested by the applicant in his motions is neither relevant nor necessary for the

determination of the single issue in the Application.

2. The single issue is whether, by voting in favour of a Resolution of City Council on

February 7, 2012, the respondent contravened the Municipal Conflict of Interest Act ("MCIA").

3. The Resolution, which passed by a vote of 22-12 was to rescind a previous Resolution of

City Council of August 25,2010.

4. The single issue fundamentally involves questions of law: Do the provisions of the MCIA

apply to a Code of Conduct violation? Did City Council under its statute, the City a/Toronto Act,

2006 ("COT A"), have the authority to require the respondent to pay $3,150 to charitable donors.

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5. As a consequence of the timing of the applicant's motions and the schedule for the delivery

of Facta, the respondent hereby provides its Factum on the Application, which also serves as

context for the motions and his responses to the motions.

6. The respondent submits four responses to this Honourable Court, each of which justifies

the dismissal of the Application:

(a) the ultra vires appIication of the MCIA provisions to a breach of the Code of

Conduct. The Code of Conduct is a distinct and separate statutory regime which

provides specific penalties for any breach;

(b) the ultra vires City of Toronto Resolution requiring the respondent to pay $3,150 to

donors who had contributed to a charitable foundation;

(c) in the alternative, error of judgment; or

(d) III the further alternative, insignificant amount that does not influence the

respondent's actions.

PART II - SUMMARY OF FACTS

7. The Integrity Commissioner, who is mandated by the City a/Toronto Act to investigate

alleged Code of Conduct violations, determined the respondent had breached the provisions of the

Code in that he used his councillor letterhead to solicit funds for his charitable foundation.

8. It is important to bear in mind in determining this application that the breach was not the

solicitation of funds for charitable purposes but the use of councillor letterhead to do so.

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9. The Integrity Commissioner then recommended to City Council that it impose the penalty

on the respondent by making him personally pay the sums received by the charitable foundation

back to the donors. City Council followed this penalty recommendation. It could not do so as

s. 160(5) of the City o/Toronto Act provides the specific penalties that Council can impose for a

Code of Conduct violation. This penalty is not one authorized by the statute.

10. The MCIA does not apply to a breach of the Code of Conduct.

11. The MCIA does not, in any event, apply to a breach which does not affect the respondent's

pecuniary interest.

12. The penalty for a breach of the Code of Conduct is specifically provided in s. 160(5) of the

City o/Toronto Act.

Misapplication of the Municipal Conflict of Interest Act to the Foundational Facts

13. The provisions of the MCIA have as their objective, transparency. Unlike a legal conflict

of interest for which there is an absolute prohibition, when a matter of the City of Toronto's

commercial or business interest comes before Council, there is no prohibition against a councillor

in participating in the business or commercial opportunity. Thus, for example, a councillor may,

even in the name of a numbered company, bid on a piece of surplus land that the City is selling

provided that he/she discloses hislher interest and refrains from speaking to the matter or voting

thereon. Disclosure and transparency are paramount.

14. If the City of Toronto is contracting for printing services or road construction, a councillor,

or a member of his family, or his numbered company, can participate provided he declares a

conflict so that the other councillors and the public know that he is an interested party.

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15. The MCIA is concerned with business or commercial matters of the City of Toronto. That

is the objective of the MCIA and the clear purport of the exceptions in section 4. The vast majority

of the authorities decided pursuant to the MCIA illustrate this principle:

(a) Re Blake and Watts involved the remission of the City of a portion of a tax levy to

the London Board of Education;

(b) Baillargeon v. Carroll involved City Council voting on a budget matter that would

reduce teaching staff. The councillor's daughter was a teacher;

(c) Tuchenhagen v. Mondoux involved the sale by the City of a parcel of land;

(d) Re: Greene v. Borins involved four land development proposals;

(e) Campbell v. Dowdall involved an application before City Council regarding top

soil removal and re-designation andlor severance of lands;

(f) Mino v. D 'Arcey involved construction of new municipal offices;

(g) Jackson v. Wall involved the construction by the City of arterial road.

16. The MCIA applies to a situation where a City business matter is to be decided and where

the councillor has a pecuniary interest in the outcome of the vote. In the situation at bar it is not a

City business matter that is to be decided. The decision has been made by the Integrity

Commissioner and she determined that the transgression was the improper use of councillor

letterhead. Additionally, the respondent has no pecuniary interest in the determination whether or

not he properly or improperly used his official letterhead. There is no conflict between the City

and the councillor with respect to the conduct that is the violation.

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17. The Code of Conduct, on the other hand, is incorporated in the COTA, a different statute

with a different purpose. The Code of Conduct provisions have their own regime and their own

specific penalties. Section 157 of COT A regulates the personal conduct of councillors not the

business of the City.

18.

Section 157

Code of Conduct

157. (1) The City shall establish codes of conduct for members of city council and members of local boards (restricted definition). 2006, c. 11, Sched. A, s. 157 (1).

(3) A by-law cannot provide that a member who contravenes a code of conduct is guilty of an offence. 2006, c. 11, Sched. A, s. 157 (3).

An alleged violation of the Code of Conduct is determined solely by the Integrity

Commissioner. The Integrity Commissioner can then recommend that City of Toronto Council

pass a Resolution in respect of the conduct violation. There is no issue of transparency. Council

and the public know the individual being censored.

Appointment of Commissioner

158. (1) The City shall appoint an Integrity Commissioner. 2006, c. 11, Sched. A, s. 158 (1).

Reporting relationship

(2) The Commissioner reports to city council. 2006, c. 11, Sched. A, s. 158 (2).

19. There is also no issue of a matter of City business being decided.

20. In a Code of Conduct matter, the City of Toronto does not initiate the matter before

Council. It is the Integrity Commissioner, who has the jurisdiction over councillor conduct and it

is she who determines whether there has been a violation.

Section 160

Penalties

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(5) City council may impose either of the following penalties on a member of councilor of a local board (restricted definition) if the Commissioner reports to council that, in his or her .opinion, the member has contravened the code of conduct:

1. A reprimand.

2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. 2006, c. 11, Sched. A, s. 160 (5).

21. The councillor who is named and targeted by the proposed sanctioning Resolution must

have an opportunity to speak to the matter before Council determines whether to accept the

Integrity Commissioner's recommendation. Otherwise, he is denied natural justice and fairness in

that he cannot offer any explanation, or mitigating circumstances, etc. before Council censors him.

That would be the result if the MCIA applied to a Code of Conduct violation. The draconian

measure of muzzling a councillor when a sanction for his own conduct is being decided is not the

objective of the MCIA.

22. Code of Conduct violations are not within the purview of the MCIA. Code of Conduct

matters engage a separate statutory regime. The legislature did so deliberately and provided

specific penalties, which are limited to two penalties. There are no issues of transparency or of the

City of Toronto's business interests.

23. The matter of penalty is not captured by the MCIA. Conduct of the councillor which

conflicts with the City's business interest may, in appropriate circumstances, be caught by the

MCIA. A distinction between liability and penalty must be made.

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The Ford Football Foundation

24. The Rob Ford Football Foundation (the "Football Foundation") was established on

March 31, 2008. The respondent is the sole officer and director of the Football FoUndation.

25. The goal of the Football- Foundation is to provide funding to Toronto high schools to

establish football programs within those schools through the purchase of equipment.

26. Like many other similar charitable foundations, the Football Foundation is administered by

the Toronto Community Foundation. The Toronto Community Foundation is a registered, public,

non-profit organization created for and by the people of Toronto.

27. Through their donor servIces, the Toronto Community Foundation conducts the

administration of the Football Foundation, including the receipt of aU donations, the issuance of

tax receipts and "thank you" letters to donors, and the distribution of funds to grant recipients.

28. Solicitation for donations is done by the Football Foundation rather than the Toronto

Community Foundation. Solicitations are normally made by letter. The respondent personally

pays for all of the stationary and office supplies used for these solicitations.

29. However, although the respondent is personally involved in the solicitation of donations

for the Football Foundation, he never beneficially receives any of the funds that are donated. All

of these funds are given to the Toronto Community Foundation.

30. Any high school seeking funding may ~pply by communicating directly with the

respondent. The Football Foundation does not have any administrative staff to handle these

communications. The Football Foundation is a personal charitable mission of the respondent and

he handles most of the communications directly.

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31. Grants to high schools range between $5,000 and $10,000. Since March 2008, the

following Toronto high schools have received grants from the Football Foundation:

• Westview Centennial Secondary School;

• C.W. Jeffreys Collegiate Institute;

• Eastern Commerce Collegiate Institute;

• Lester B. Pearson Collegiate Institute;

• Sir Sandford Fleming Academy, now called John Polanyi Collegiate Institute;

• Forest Hill Collegiate School;

• Satec W.A. Porter Collegiate Institute;

• Winston Churchill Collegiate Institute;

• George Harvey Collegiate Institute; and,

• Blessed Mother Teresa Catholic Secondary School.

The August 12,2010 Integrity Commissioner Report

32. When the respondent started soliciting donations to the Football Foundation, some letters

went out on City Council letterhead. This was the subject of the Report of the Integrity

Commissioner, dated August 12, 2010. This report was expressly stated to have no potential

financial impact on the City of Toronto. The purpose ofthe statement is indicate that the matter is

one of inappropriate behaviour of the councillor in using letterhead and not one that impacts the

financial interests of the City either positively or negatively.

33. This report was tabled at the meeting of City Council on August 25, 2010. There was no

debate of this issue at the time the Report of the Integrity Commissioner was tabled. Council

adopted on consent the recommendation of the Integrity Commissioner. This included a

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recommendation that the respondent personally "reimburse" the money that certain individuals

and corporations donated to the Football Foundation.

34. The respondent never beneficially received any funds donated by any of these individuals

or corporations. These funds were all paid to the Tororito Community Foundation . .

35. Since receiving the Integrity Commissioner's August 12,2010 report, the respondent has

taken steps to ensure that letters soliciting donations to the Football Foundation are always sent on

letterhead for the Football Foundation rather than on City of Toronto letterhead or the letterhead of

the Mayor's office.

36. The receipt of donations by the Toronto Community Foundation did not benefit the City of

Toronto. Likewise, council's order adopting the recommendation of the Integrity Commissioner

that the respondent personally pay $3,150 to the donors does not affect the City of Toronto and

does not financially impact the City.

Compliance with the MCIA

37. Since 2001, the respondent has declared a conflict of interest on many occasions when a

matter of City business came before Council and the respondent or a member of his family had a

pecuniary interest in that business matter:

(a) On July 24, 2001:

"Councillor Ford declared his interest in Clause No. 23 of Report No. 11 of The Administration Committee, headed 'Printing and Distribution Unit Procurement Procedures', in that he is the owner of a company that supplies decals, labels and tags."

Reference:

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The Applicant's Supplementary Record, Tab DO, page 263

Robert Ford Cross-Examination Transcript ("Ford Transcript"), pp. 41-43

(b) On July 22 to 24, 2003 :

"Councillor Ford declared his interest in Clause No.7 of Report No.7 of The Administration Committee, headed 'Delay in Award of Request for Quotation for Supply, Printing and Mailing of Tax and Water Bills and Parking Tag Notices', in that he owns a printing company."

Reference: The Applicant's Supplementary Record, Tab CC, page 254

Ford Transcript, pp. 44-45

(c) On November 30, December 1 and 2,2004:

"Councillor Ford declared his interest in Administration Committee Report 9, Clause 5, headed 'Service Improvement Review for Printing and Reproduction Services', in that his family owns a printing company."

Reference: The Applicant's Supplementary Record, Tab BB, page 241


(d) On February 21-28, March 1,2005:

"Councillor Ford declared his interest in Policy and Finance Committee Report 3, Clause 1, headed 'City of Toronto 2005 Budget Advisory Committee Recommended Capital Budget and 2006-2014 Capital Plan', as it applies to the City Clerk's Office, as his family owns a printing company."

Reference: The Applicant's Supplementary Record, Tab AA, page 230

F5>rd Transcript, pp. 46-48

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(e)

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On July 19,2005:

"Councillor Ford declared his interest in Etobicoke York Community Council Report 5, Clause 16, headed 'Proposed 'No Parking Anytime' Prohibition on Greensboro Drive (Ward 2 - Etobicoke North)', in that his family owns property on Greensboro Drive."

Reference: The Applicant's Supplementary Record, Tab Y, page 217


(f) On July 19,20,21,26,2005:

"Councillor Ford declared an interest in Etobicoke York Community Council Report 5, Clause 16a, headed 'Proposed 'No Parking Anytime' Prohibition on Greensboro Drive (Ward 2 - Etobicoke North)', in that his family owns property on Greensboro Drive."

Reference: The Applicant's Supplementary Record, Tab Z, page 223


(g) On September 26,2006:

"Councillor Ford declared is interest in the following matters, in that his family owns a printing company:

- Administration Committee Report 5, Clause 7, headed 'Procurement of an Order Picker (Fork Lift) and Budget Adjustments relating to the Printing Equipment Replacement Plan of the City Clerk's Office, Records and Information Management'; and

- Motion J(57), moved by Deputy Mayor Bussin, seconded by Councillor Li Preti, respecting a limit on Municipal Election campaign expenses."

Reference: The Applicant's Supplementary Record, Tab X, page 207


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(h) On November 19 and 20,2007:

"City Council on November 19 and 20, 2007, adopted the following motions: 1. City Council direct the Chief Building OfficiallExecutive Director to: a. investigate the specific sign location, as provided by Mr. Rami Tabello and Mr. Jonathan Goldsbie (in communications LS8.5.1 and LSS.5.3) ana report back to the Licensing and Standards Committee in four months;

Declared Interest (City Council)

Councillor Ford - in that his family owns a business at 28 Greensboro Drive, which is in the vicinity of one of the referenced sign locations."

Reference: The Applicant's Supplementary Record, Tab W, pp. 201-202


(i) On March 8, 2011:

"Declared Interests (City Council)" The following member(s) declared an interest:

Mayor Rob Ford - Speaker Nunziata advised City Council that Mayor Ford wishes to declare an interest in this matter and absent himself from the chamber."

Reference: The Applicant's Supplementary Record, Tab V, page 199


38. Indeed, at the very meeting on February 6 and 7, 2012, which is the subject matter of the

application, the respondent declared his interest and refrained from voting on a matter involving

the Lambton Golf Club because his mother is a member.

MS. CHAISSON: That's correct.

MR. LENCZNER: So the golf course is assessment review thing, and it says that:

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" ... The following members declared an interest: Mayor Rob Ford and his family are members of the private golf course, Council/or Doug Ford, Deputy Mayor Doug Holydayand Council/or James Pasternak ... "

And all give the same reason, they're members of the golf club, the private golf club.

BY MR. RUBY:

262. Q. What was the finanCial interest in this ~one?

A. Again, I couldn't answer that question, but I know the legal staff advised all the council/ors and the mayor that if someone was a member or any family members ... or, "If anyone from your family is a member of the golf course, you should declare a conflict, " and my mom is a member at Lambton.

Reference: Ford Transcript, pp. 62-63

The Subject Matter of the Application

39. On February 7,2012, the matter on the printed agenda before Council was to require the

respondent to provide proof that he, personally, had paid the fine of $3,150 by reimbursing the

money to the donors, most of whom had written that they did not want or require the money. The

respondent spoke to the matter at this time explaining the Football Foundation and the benefits it

provided.

40. Before the advertised motion could be reached, Councillor Ainslie moved that the

August 25, 2010 Resolution be rescinded. The respondent did not speak to this matter but did vote

in its favour.

41. The issue in this application is whether, in voting to rescind the August 25, 2010

Resolution imposing a fine for Code of Conduct violation, the respondent breached the MCIA

provIsIOns.

42. It is respectfully submitted that the Code of Conduct and its provisions are focussed on

Councillor conduct. It is a separate and distinct piece oflegislation from the MCIA. The Code of

Conduct is not aimed at City of Toronto business. The Code of Conduct provisions mandate two

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specific penalties. It is respectfully submitted that, as a matter of statutory interpretation and

application, one cannot apply the sanctions of the MCIA to a breach of the Code of Conduct.

43. It is important to note that on both occasions, in August 2010 and again in February 2012,

the Integrity Commissioner specifically noted that her recommendation had no financial impact on

the City of Toronto. That sentence is intentionally added to indicate that City business is not

affected.

44. There is also no issue of transparency. It is clear that the subject matter of the discussion

and decision to be made is with respect to the respondent.

45. As a result, the application of the MCIA on February 7,2012 to the rescission of an earlier

Resolution (August 2010), which had imposed a fine on the respondent, is misconceived and ultra

vires the Act.

The Council of the City of Toronto had no Statutory Authority to Levy a Fine or Require Repayment by the Respondent

46. The City of Toronto, its Council and Councillors are a statutory body and derive their

authority only from the City of Toronto Act, 2006 ("COTA"). Collectively, they are limited in their

powers to the grant of authority specified in the COrA.

Reference: Immeubles Port Louis Ltee. v. Lafontaine (Village), [1991] 1 S.C.R. 326 at para. 42

Rawana v. Sarnia (City) (1996), 30 O.R. (3d) 85

Aboutown Transportation Ltd. v. London (City) (1992), 9 O.R. (3d) 143

47. Section 160(5) of the COTA authorizes Council to either reprimand a Councillor or to

suspend hislher pay.

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48. Neither in August 2010, nor on February 7 did Council act within its statutory authority.

On August 28, 2010, Council passed a Resolution, without vote, to require the respondent to

personally repay the donors $3,150. The Resolution was ultra vires Council, as it did not have the

authority to make such a Resolution. It was neither a reprimand nor a suspension.

49. On February 7, 2012, Council voted in favour of rescinding its earlier August 28, 2010

ultra vires Resolution. Rescinding an ultra vires Resolution is not a matter which engages the

MCIA.

50. Thus, although City Council on August 25,2012 was within its right to impose a penalty on

the respondent for his Code violation, it could only do so by sanctioning him in accordance with

the penalties legislated in s. 160(5). Council acted beyond its authority. An ultra vires Resolution

is a nullity.

Alternative Submissions if the MCIA Applies to the Events of February 7, 2012

51. In the alternative, the respondent should receive the benefit ofs. 10(2) of the MCIA on the

basis of error of judgment, inadvertence or insignificant amount.

Section 10

Saving by reason of inadvertence or error

(2) Where the judge detennines that a member or a fonner member while he or she was a member has contravened subsection 5 (1), (2) or (3), if the judge finds that the contravention was committed through inadvertence or by reason of an error in judgment, the member is not subject to having his or her seat declared vacant and the member or fonner member is not subject to being disqualified as a member, as provided by subsection (1). R.S.O. 1990, c. M.50, s. 10 (2).

52. The respondent has amply demonstrated, as detailed in paragraphs 30(a) to (i) and

paragraph 31 supra that, when it comes to the City's business or commercial matters which might

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affect his or his family's pecuniary interests, he declares a conflict, refrains from speaking to the

matter and does not vote.

53. Indeed, the respondent has stated that his understanding is that the MCIA is triggered when

there is a matter that is of benefit to the City in that the City can gain or lose a benefit by the passing

of a Resolution with respect to the matter:

(a) When the respondent started soliciting donations for the Football Foundation, some

letters were sent out on City Council letterhead. This was the subject of the Report

of the Integrity Commissioner, dated August 12, 2010. This report was stated to

have no potential financial impact on the City of Toronto. Indeed, on February 7,

2012, the Integrity Commissioner in making her recommendation that the

respondent provide proof of payment stated that the matter had no potential

financial impact on the City of Toronto;

(b)

(c)

68. Q. That's interesting, but the question I asked was whether, as a result of

reading that, you understood and you knew that under the MCIA, you must declare

a pecuniary interest direct or indirect, and you must not vote on or to speak to the

matter in which you have a pecuniary interest, whether on your own behalf or

through or with another entity . Yes?

A. lfthe City is benefiting from it, yes;

83. Q. And that was your only understanding?

A. From what I understand of the Municipal Conflict of Interest Act, yes,

ifit benefits the City.

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54. On February 7, 2012, the anticipated agenda item was whether the respondent had to

provide proof of payment. That was an administrative matter that did not require him to make a

payment. He believed he had a right to speak to the matter. Had he done so, he w~)Uld not have

contravened the MCIA as the item was purely administrative.

55. But the matter never arose; there was a new, unanticipated debate recommending that

Councillors should be able to solicit funds for charitable organizations. After some confusion, a

floor motion was presented to rescind Council's August 25,2010 Resolution that the respondent

pay $3,150 to donors to the Ford Football Foundation. The respondent says he was confused. He

did not believe he was in a conflict of interest. He should be believed for three cogent reasons:

(a) his past conduct shows that he declared a conflict repeatedly whenever there was a

City business matter that could possibly impact him or his family;

(b) on the very same day, he declared a conflict with respect to the City resolution re:

the Lambton Golf Cllib because his mother was a member - see paragraph 38

hereof; and

( c) he had a longstanding belief that the MCIA was only triggered if the City had to

gain or lose a benefit from the matter to be decided.

56. Although there was no obligation to do so, the respondent also anticipated that City Staff,

be it the Clerk or City Legal Staff, would remind him that he should abstain from speaking and

voting. They had many times in the past:

BYMR. RUBY:

124. Q. In your affidavit, as you have already told me, the indication you give is that the city clerk and/or staff will also normally advise or remind a member of council of a potential conflict of

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interest, if staff believes that member may be in a conflict of interest in the past on a similar issue. That's your affidavit.

MR. LENCZNER: This is paragraph 24 you're referring to him?

125. MR. RUBY: It is.

MR. LENCZNER: Okay, yes.

THE DEPONENT: Or at a committee meeting, yes.

BYMR. RUBY:

126. Q. Okay. So that's normally done. Is it always done?

A. I don't think it is always done. It all depends if the clerk is aware of it.

163. Q. My question is you agree with me that the obligation is placed here on the member. You understood that?

A. It's up to you to inform or ask questions of the city clerk or legal ...

164. Q. And no obligation is put on anybody else but the member by this legislation, correct?

A. Sometimes you're in a conflict, sometimes you're not. You may think you are, and sometimes you're not. So it's more about... to get legal advice.

165. Q. And the obligation, whatever it may be, is placed on the member of council, not anybody else, correct?

A. It's up to you to ask the questions or find out.

Reference: Ford Transcript, pp. 28-29 and 36-37

57. Given the unanticipated change from the written agenda, the respondent's belief as to what

was encompassed by the MC/A, the bona fide intentions of the respondent from past declarations

of conflict of interest and indeed one declaration of conflict of interest on February 7, 2012 itself,

at best, the respondent's actions were an error of judgment.

58. Section 4(k) of the MCIA provides:

Where s. 5 does not apply

4. Section 5 does not apply to a pecuniary interest in any matter that a member may have,

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(k) by reason only of an interest of the mem ber which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member. R.S.O. 1990, c. M.50, s. 4; 2002, c. 17, Sched. F, Table; 2006, c. 32, Sched. C, s. 33 (1).

59. The amount of money· involved, $3,150, when considered against the $167,770 salary of

the Mayor is insignificant. It is also inconsequential when weighed against the consequences of

the Act. No objectively reasonable person could conclude that the respondent, a City Councillor

for ten years and Mayor for two years would jeopardize his position for $3,150 particularly when

on the same day he declared a conflict of interest because of his mother's membership in the

Lambton Golf Course.

Responses to Motions

60. The applicant seeks a trial. Matters of this nature, including allegations under the Me/A,

are routinely dealt with by application. This matter involves a single issue and no facts that are in

dispute. The arguments will centrally involve submissions regarding the law. No trial is required.

61. The applicant's other motions require leave of the Court because they are beyond the time

limits set out in the Rules and because they represent the exception, rather than the norm. A

motions judge has a discretion that he is free to exercise with respect to all these matters. There is

case law on both sides of the issue, but each case is specific to its own facts and the issues involved.

62. The applicant wishes to file an affidavit of a former councillor, Howard Moscoe. Mr.

Moscoe.makes the following points in his proposed affidavit:

(a) "Neither the City Clerk nor the any other City staff normally give legal advice to

Councillors regarding conflicts of interest" at para. 4; and

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(b) "Mr. Ford does not have any effective procedures in place to guard against conflicts

of interest." At questions 1~4 and 135 of the transcript of Mr. Ford's

cross-examination; he admits he has no procedures in place to identify potential

conflicts of interest.

63. To file Mr. Moscoe's affidavit, the applicant requires leave of the Court as it is given after

the cross-examin~tions and late in the process.

64. Moreover, Mr. Moscoe's affidavit is unnecessary. As to the assertion that the respondent

does not have any procedures in place to identify potential conflicts of interest, the respondent

. . admitted that:

134. Q. What procedure do you have in place to let the city clerk know when you might have a conflict, if any?

A. We don't have anything in place, and I don't think ...

BYMR. RUBY:

135. Q. What protocol do you have with regard to your own staff to see that you are alerted to cases of potential conflict of interest?

A. I don't believe we have an actual protocol in our office.

Reference: Ford Transcript, pp. 30 and 31

65. As to whether the City Clerk or legal staff gives advice to councillors on occasion, the

respondent does not allege or claim that the Clerk or legal staff have any obligation to give legal

advice. The respondent has indicated that they have reminded him of conflicts in the past or given

him direction when he has asked for it. Please see questions and answers at paragraph 56 supra:

66. The applicant seeks to have the respondent cross-examined viva voce at the hearing. It

claims that "credibility" is in issue.

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67. Credibility is not in issue. The respondent has been categorical that his understanding of

the MCIA is triggered whenever the City of Toronto introduces a matter for Resolution that can

provide it with a benefit or cost it a benefit. Please see questions and answers at para. 53 supra.

68. The respondent has acted in accordance with his understanding on more than nme

occasions in the past, including on the very day in question.

69. His understanding is either right or wrong. If wrong, it is submitted that it is an error of

judgment. It is not a question of credibility. Certainly not one that cannot be determined from the

transcript of his cross-examination and that s,ubjects him to a second cross-examination.

70. The questions refused at the cross-examination do not advance the legal issues to be

determined. They are irrelevant and designed to embarrass.

Q. Would you agree with me that you tell lies from time to time, especially when you're caught acting wrongly?

The applicant seeks to ask the respondent whether he lied about being drunk at the hockey game

and later had to apologise. Whether he lied to a reporter about a marijuana charge in Florida.

71. The other questions refused relate to hypothetical situations which did not arise, e.g. "If

council chose to order that you lose your salary for 90 days, that would have a financial impact on

you?" First, council never made that "order". Second, it is rhetorical. It is obvious that if pay is

withheld, it impacts a recipient financially.

72. The applicant wishes to examine the City of Toronto Solicitor and the Clerk. The purpose

of such examination is to elicit the answers that there is no obligation on either to advise

councillors that they have a conflict of interest. That is conceded. The respondent does not take

the position that any error in judgment on February 7,2012 in voting to rescind the City of Toronto

22

Resolution of August 25,2010 resulted from the City Solicitor or the Clerk failing to advise him

that he had a conflict of interest.

73. The respondent says that, in the past either a City lawyer or the Clerk would remind him of

a conflict that he had and that he would and did refrain from voting. The respondent does not rely

on the receipt of advice as a legal matter. He only points out that his error of judgment was not so

apparent as to raise a concern with others at the council meeting. On this occaSIOn,

February 7,2012, he says:

"24. There were City of Toronto staff members present throughout the council meeting as well as the City Clerk. Normally, when an issue of procedure or conduct arises during the course of a council meeting, either the City Clerk or staff will provide comment and information so that the situation is clarified. The City Clerk and/or staffwill also normally advise or remind a member of council of a potential conflict of interest if staff believes that the member may be in a conflict of interest or where the member has declared a conflict of interest in the past on a similar issue.

25. No such issue was raised during the course of the February 7, 2012 council meeting and at no point did anyone raise any concern about my presence during the debate of this vote or my participation in the vote."

Reference: Affidavit of Robert Ford sworn June 5, 2012, p. 6

74. It is respectfully submitted that this Application ought to proceed as scheduled on its

present record. Each party has sufficient facts and law, as detailed in their Facta, to make all the

relevant and necessary arguments to the Court.

75. It is respectfully submitted that the Application and motions be dismissed with costs.

ALL OF WHICH IS RESPECTFULLY SUBlVUTTE

A Alan J. Lenczner, Q.c.

~!i:ft

r i .

r I

23

LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP

Barristers Suite 2600 130 Adelaide Street West Toronto ON M5H 3P5

Alan J. Lenczner, Q.C. (1 1387E) Tel: (416) 865-3090 Fax: (416) 865-2844 Email: [email protected] Andrew Parley (55635P) Tel: (416) 865-3093 Fax: (416) 865-2873 Email: [email protected]

Lawyers for the Respondent

.-,

-,

r

SCHEDULE "A"

LIST OF AUTHORITIES

Immeubles Port Louis Ltee. v. Lafontaine (Village), [1991] 1 S.C.R. 326 at para. 42

Rawana v. Sarnia (City) (1996), 30 O.R. (3d) 85

Aboutown Transportation Ltd. v. London (City) (1992), 9 O.R. (3d) 143

r-

SCHEDULE "B"

PART 2 - TEXT OF STATUTES, REGULATIONS & BY - LAWS

CITY OF TORONTO ACT, 2006, S.O. 2006, C. 11, Sched~le. A

-Section 157 --

Code of Conduct

Section 157 (1) The City shall establish codes of conduct for members of city council and members of local boards (restricted definition). 2006, c. 11, Sched. A, s. 157 (1). Same

(3) A by-law cannot provide that a member who contravenes a code of conduct is guilty of an offence. 2006, c. 11, Sched. A, s. 157 (3).

Section 158

Appointment of Commissioner

Section 158 (1) The City shall appoint an Integrity Commissioner. 2006, c. 11, Sched. A, s. 158(1).

Reporting relationship

(2) The Commissioner reports to city council. 2006, c. 11, Sched. A, s. 158 (2). (1)

Section 160

Penalties

Section 160 (5) City council may impose either of the following penalties on a member of councilor of a local board (restricted definition) if the Commissioner reports to council that, in his or her opinion, the member has contravened the code of conduct:

1. A reprimand.

2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. 2006, c. 11, Sched. A, s. 160 (5).

2

MUNICIPAL CONFLICT OF INTEREST ACT, R.S.O. 1990, CHAPTER M.50

Section 4

Where s. 5 does not ~pply

4. Section 5 doe-s riot apply to a pecuniary interest in any matter that it member may have,

(k) by reason only of an interest of the member which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member. R.S.O. 1990, c. M.50, s. 4; 2002, c. 17, Sched. F, Table; 2006, c. 32, Sched. C, s. 33 (1).

T Section 10

Saving by reason of inadvertence or error

(2) Where the judge determines that a member or a former member while he or she was a member has contravened subsection 5 (1), (2) or (3), if the judge finds that the contravention was committed through inadvertence or by reason of an error in judgment, the member is not subject to having his or her seat declared vacant and the member or former member is not subject to being disqualified as a member, as provided by subsection (1). R.S.O. 1990, c. M.50, s. 10 (2).

PAULMAGDER Applicant

--'-~ ---......

,-____ l-.., ~,

-and- ROBERT FORD Respondent

Court File No. CV-12-448487

ONTARIO SUPERIOR COURT OF JUSTICE

PROCEEDING COMMENCED AT TORONTO

FACTUM OF THE RESPONDENT

LENCZNERSLAGHTROYCE SMITH GRIFFIN LLP

Barristers Suite 2600 13 0 Adelaide Street West Toronto ON M5H 3P5

Alan J. Lenczner, Q.C. (11387E) Tel: (416) 865-3090 Fax: (416) 865-2844 Email: [email protected]

Andrew Parley (55635P) Tel: (416) 865-3093 Fax (416) 865-2873 Email: [email protected]

Lawyers for the Respondent

respondent's factum 2

Documents