Municipal Conflict of Interest: MADGER v. FORD: SUMMARY OF APPEAL DECISION
By Kevin Latimer, Q.C. and Mark Mills, Articled Clerk, Cox & Palmer
In an earlier article, published in the November–December, 2012 UNSM E-news Bulletin, we reviewed the decision of the Ontario Superior Court of Justice in Magder v. Ford, 2012 ONSC 5616, dealing with an application for an order declaring the Toronto City Council position of Mayor Rob Ford vacant for breaches of the Municipal Conflict of Interest Act (MCIA). The court granted the application, however the decision was appealed. The appeal decision, released on January 25, 2013, overturned the initial ruling, allowing Ford to maintain his seat on council. The reasons for the decision are summarized below:
A detailed summary of the factual background and the arguments in the initial hearing can be found by clicking here.
APPEAL DECISION The appeal panel of the Ontario Superior Court of Justice considered a number of grounds of appeal. It ultimately found that the original reimbursement resolution passed by Council was outside the scope of Council's authority and was therefore a nullity.
The appeal panel interpreted the Code of Conduct as offering only two possible sanctions for breaches – a reprimand, or a suspension in remuneration. A section of the Code of Conduct which allows for "other actions", upon which council relied when it imposed the reimbursement order, was interpreted as permitting limited non-punitive remedial measures, such as apologies.
The appeal panel took the view that the order requiring Ford to repay funds that he hadn't received personally was punitive in nature and therefore outside the remedies contemplated under the Code of Conduct. The order was deemed an inappropriate attempt by council to expand its powers beyond those authorized by the Code.
The appeal panel then went on to find that because the resolution was a nullity, Ford had no pecuniary interest when he voted on it, and was therefore not in breach of the MCIA.
Click here for the full text of the decision.
Clayton Ruby, council for the Applicant, Mr. Magder, has indicated that he will be seeking leave to appeal the case to the Supreme Court of Canada.
Kevin Latimer, Q.C. of Cox & Palmer, legal counsel to UNSM, practices in the areas of municipal and employment law and utility regulation. Mark Mills is an articled clerk with Cox & Palmer.