November 26th, 2012
At 10:00 AM this morning, Justice Hackland’s released his reasons for decision in Magder v Ford, the much anticipated application to have Mayor Ford removed from officer pursuant to the Municipal Conflict of Interest Act. The application was brought by a municipal voter, Paul Magder, who was represented by the prominent Toronto lawyer Clayton Ruby.
The story begins back in 2010, when then-Councillor Ford used the City of Toronto letterhead, his status as a City Councillor, and City of Toronto resources to solicit $3,150 for the Rob Ford Foundation — his personal charity designed to help fund high school football programs. As this was a clear breach of the Code of Conduct for Members of Council (specifically, Articles IV, VI and VIII), the Integrity Commissioner recommended that Ford reimburse the donors personally. The Integrity Commissioner’s report and recommendations were initially approved by City Council without debate.
Fast forward to February 5, 2012, when, after more than a year of non-compliance, Councillor Ainslie tabled a motion to rescind Council’s 2010 decision and absolve now-Mayor Ford of any liability with respect to the $3,150. Mayor Ford spoke to and voted on Councillor Ainslie’s motion.
s. 5(1) of the Municipal Conflict of Interest Act reads as follows:
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.
Justice Hackland found that Mayor Ford’s participation in the February 5 debate and his voting on the matter constituted a breach of the Act. In terms of remedies, the Act is designed in a way that leaves the application judge no discretion on the initial penalty a conflicted member of Council is to face. Section 10(1) of the Act states:
Subject to subsection (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), the judge,
(a) shall, in the case of a member, declare the seat of the member vacant
Finally, Justice Hackland entertained a number of defences advanced by Ford but ultimately remained unconvinced. With respect to the proposition that Ford’s action were the product of inadvertence, Justice Hackland found:
“Inadvertence involves oversight, inattention or carelessness. On the contrary, the respondent’s participation was a deliberate choice. He testified in this proceeding that he appreciated that the resolution before Council impacted him financially because it required him to repay funds he believed he did not owe. He received the Council agenda a week prior to the meeting, considered the matter, planned his comments, which were designed to “clear the air,” and came to the meeting with the intention of speaking” (at para 51).
Justice Hackland was even less receptive to the claim that Mayor Ford’s actions resulted from an “error in judgment”:
“The case law confirms that an error in judgment, in order to come within the saving provision in s. 10(2) of the [Act], must have occurred honestly and in good faith… outright ignorance of the law will not suffice, nor will wilful blindness as to one’s obligations.
… it is difficult to accept an error in judgment defence based essentially on a stubborn sense of entitlement” (at paras 53, 58).
The judge did have the power to ban Ford from running for a seat on Council for up to seven years but declined to impose “any further disqualification from holding office beyond the current term” (at para 60).
To be clear: Mayor Ford was not removed from office because he used City letterhead to raise funds for his charity; rather, Ford was removed from office because he debated and voted on a matter that would determine whether he would personally have to reimburse donors to the tune of $3,150.
More to come.[filed: List of cases]