Justice Charles Hackland made at least three other errors in law in ruling that Ford breached the Municipal Conflict of Interest Act, say written arguments filed in Ontario Divisional Court on behalf of the mayor by Alan Lenczner and Andrew Parley of Lenczner Slaght LLP.
“It is respectfully submitted that Hackland RSJ, from the outset, adopted the wrong approach. Rather than applying the ordinary meaning to plain language and seeking to uphold the democratic decision of the voters who elected the Mayor, by construing the MCIA ‘strictly’ and by searching for a ‘reasonable interpretation which will avoid a penalty,’ Hackland RSJ did the opposite of what the law demands,” write Ford’s lawyers.
The spectre of a court removing an elected politician from office is highlighted by Ford’s lawyers more than once in their arguments.
“The appellant was elected Mayor, by an overwhelming majority in November 2010,” they write in their factum.
Ford actually received 47 per cent of all votes cast, a plurality, not a majority.
Hackland ordered the office of mayor vacated as a result of the breach of the MCIA in his Nov. 26 ruling, although he later clarified his decision to say that Ford could run in any by-election if he is unsuccessful on appeal. The Divisional Court granted a stay of the ruling pending its decision in the appeal which is scheduled to be heard Jan. 7.
The MCIA prohibits a member of municipal council from taking part in discussions or voting on any matter in which he or she has any pecuniary interest. The court action against Ford was initiated earlier this year after he spoke to and voted on a February 2012 Toronto city council motion that overturned its previous order in August 2010 that he repay $3,150.
That money was donated to Ford’s private football foundation by lobbyists and companies that did business with the city. The vote in August 2010 adopted the recommendations of Toronto integrity commissioner Janet Leiper that the money be repaid because it violated the official Code of Conduct for councillors.
Leiper noted that Ford had ignored two previous attempts to informally resolve complaints he stop using official letterhead and city staff to solicit money for the foundation. The sanction would “reflect the importance of a Councillor not using the influence of office for personal causes,” wrote Leiper in August 2010.
Ford never complied with council’s order to repay the money. But his lawyers are arguing this order was ultra vires the powers of council under The City of Toronto Act and as a result council’s August 2010 motion and everything that flowed from it, was a “nullity.”
Under the act, council “may” impose a reprimand or a suspension of up to 90 days if there is a finding of a breach of the Code of Conduct.
Hackland stressed the act states council “may” impose these penalties and the integrity commissioner was granted the power to recommend “other actions” including reimbursement of money.
“While the member may view the other actions as penalties, they are in fact necessary remedial measures to allow the Code of Conduct to operate effectively and to address the problems arising from Code of Conduct violations,” wrote Hackland.
The Code of Conduct is merely a “policy document” write Ford’s lawyers and it was not open to council to require a reimbursement as an “authorized penalty.” As well, since Ford did not receive the donations personally, he cannot be made to repay them, they argue.
The MCIA applies to “business or commercial matters of the City of Toronto” and “was not promulgated to regulate councillor or councillor integrity,” write Lenczner and Parley.
The conflict provisions do not apply if the pecuniary interest is too remote or insignificant in nature. Even though Ford testified he would object to being ordered to repay even $5 in this case, his lawyers state Hackland improperly applied a subjective test in determining this issue.
The MCIA includes defences such as an error in judgment by a councillor, which was rejected by Hackland. In the appeal to the Divisional Court, this defence is raised again on the basis that Ford “reasonably believed” he was permitted to participate in the council vote on his conduct that did not involve a financial interest for the City.
The factum of Toronto resident Paul Magder, who initiated the court action under the MCIA, is scheduled to be filed by Dec. 24.