For Ford Supporters and Critics Alike, Divisional Court Decision in Magder Should be Embraced
On January 25, the Divisional Court released its decision in Magder v Ford 2013 ONSC 263, the much publicized conflict of interest case surrounding Toronto’s mayor, Rob Ford. In a judgment that shocked, delighted, and disappointed all at once, the court granted Ford’s appeal, overturned the decision of Justice Hackland, and confirmed that Rob Ford will indeed be the mayor of Toronto until at least 2014.
In this post, I will attempt to trace the law and explain exactly why the Divisional Court granted Ford’s appeal. While there remains the prospect of an appeal to the Supreme Court of Canada, I will argue that, even for Ford’s staunchest political opponents, the decision of the Divisional Court should be embraced.
The Application Decision and the Issues on Appeal
“The application judge found that Mr. Ford had violated s. 5(1) of the MCIA by speaking and voting in the meeting. He concluded that s. 4(k) did not exempt the conduct, as the amount in issue was not insignificant. He also concluded that s. 10(2) did not provide a defence, as Mr. Ford had not committed a bona fide error in judgment. Rather, he had been wilfully blind as to his obligations under the MCIA. Therefore, the application judge declared Mr. Ford’s post as Mayor vacant, although he imposed no further period of disqualification.” (para 25)
While the especially keen among you may consult Mayor Ford’s appeal factum for an exhaustive treatment of all of the alleged deficiencies in Justice Hackland’s decision, for our purposes, the dispositive ground of appeal (and, in fact, the only successful one) is as follows:
“Did the application judge err in law in failing to find the City Council resolution of August 25, 2010 [Decision CC 52.1] was ultra vires and, therefore, a nullity?” (para 30).
Recall that the fatal ‘speaking to’ and ‘voting on’ that Ford did was in relation to a resolution of City Council (based on the recommendations of the Integrity Commission) that Mayor Ford reimburse 11 donors to the tune of $3,150 – the total amount they had donated to Ford’s football charity. If that resolution was ultra vires City Council, so the argument goes, then it should be declared a nullity and all subsequent proceedings linked and dependent on it (read: the conflict of interest proceedings) were also nullities.
The City of Toronto Act and City Council’s Power to Penalize
When dealing with municipalities, it is important to start from the proposition, classically articulated by Iacobucci J in R v Greenbaum  1 SCR 674, that:
“Municipalities are entirely creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute” (emphasis added, para 22).
The City of Toronto Act (COTA) is the provincial statute that sets out the general powers of the City of Toronto, its governance structure, and, importantly, a mechanism to establish a code of conduct and impose penalties if said code has been contravened by a member.
Section 160 of the COTA lays out the procedure by which the Integrity Commissioner may inquire into an alleged breach of the code of conduct (which shall be established by the City under s. 157(1)). In the case of a breach, s. 160(5) provides:
(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 (emphasis added).
Reading the provision in both French and English, the Divisional Court was satisfied that, by virtue of the language of the section, the provincial legislature intended only to grant Council one of two penalties: a “reprimand” or a suspension of pay (para 66). Despite this, Part XVIII of the Code of Conduct (here, at p. 27) allows the Integrity Commissioner to recommend that Council take one or more of the following “other actions”:
- Removal from membership of a Committee or local board;
- Removal as Chair of a Committee or local board
- Repayment or reimbursement of moneys received
- Return of property or reimbursement of its value
- A request for an apology to Council, the complainant, or both (emphasis added).
(Admittedly, unless a “reprimand” under s. 160(5) of the COTA really means these five “other actions,” I have difficulty reconciling the Court’s steadfast finding that Council may only remedy a breach of the Code of Conduct by a reprimand or suspension of pay, while also recognizing that the above “other actions” may be ordered by Council on the Integrity Commissioner’s recommendation.)
In any case, the Divisional Court took – as it should have – a literal approach to the law and was satisfied that the imposition of a punitive financial penalty against Mayor Ford was not a reprimand, was not a suspension of pay, and went beyond any of the “other actions” listed in the Code of Conduct. On this latter point, the key fact driving this finding was that the monies Ford was ordered to repay were not “received” by him. Instead, they were received by his charity, the Toronto Community Foundation. With this in mind, the Divisional Court, at para 69, held that Justice Hackland “…erred in failing to find that [the Council resolution] was ultra vires by imposing a sanction not authorized by the COTA.”
Elsewhere, Eddie Clark – a S.J.D. Candidate at the University of Toronto Faculty of Law – explained with expert clarity the legal consequences of a finding that Council imposed a penalty that was ultra vires its authority. He wrote:
However, once a decision is found to be invalid, it typically has retrospective effect – i.e. the law acts as if that unlawful decision had never been made (this is what the Court meant when it said that Council’s repayment order was a “nullity”). This is obviously artificial, because subsequent decisions have often been made relying on the invalid original decision, but it is how the law ensures that invalid actions don’t ‘infect’ subsequent decisions. The goal is to restore everyone to the position they were in before the invalid decision was made.
The court does have the discretion to limit the degree to which the decision is invalidated (for example, if third parties have acted in reliance on the impugned decision, the decision may be held to be valid for that purpose). This is part of the general remedial discretion that courts always have in judicial review. However, there don’t appear to be any affected third parties or other unusual circumstances in this case, so the Court’s discretion was not exercised. The end result is that the Council’s repayment order is, and must be treated as if it always had been, invalid (emphasis added).
The Divisional Court did not disturb any of Justice Hackland’s other findings, which leads one to conclude that if the facts played out exactly the same way, but the $3,150 was deposited in Ford’s bank account rather than the charity’s, Toronto would currently be on the hunt for a replacement mayor.
Divisional Court Decision is a Good Thing for Toronto
Putting the law to the side for a moment, from a political standpoint there are good reasons to embrace (if not celebrate) the decision of the Divisional Court in Mayor Ford’s saga. Without a doubt, Mayor Ford is one of Canada’s most polarizing political figures, and yes, for some, each day he spends in office is one too many, but if ridding City Hall of Mayor Ford is the goal, that goal is best realized through the ballot box and not through the courts.
Adam Goldenberg, a former speechwriter to Michael Ignatieff and a J.D. Candidate at Yale Law School penned an op-ed in the Ottawa Citizen following the application decision and drew an interesting parallel between the Ford decision and the famous “King-Byng” Affair of 1926. There, he wrote:
Canadian history offers a cautionary tale. In 1926, with his minority government facing defeat in the House of Commons, Prime Minister Mackenzie King asked the Governor General, Lord Byng, to dissolve Parliament and call an election. Byng refused, and instead invited the Conservative leader, Arthur Meighen, to form a new government. Meighen obliged, took office, lost the confidence of the House, and then lost his own seat in the ensuing election. King campaigned in defence of democracy and against what he portrayed as undemocratic interference by an unelected official. He won a majority. (Emphasis added).
Goldenberg goes on to temper his analogy, but his conclusion is simple: “[W]hen unelected powers-that-be face off against men with mandates, the politicians often win.” This is entirely consistent with my (admittedly unscientific) opinion canvassing of those removed from the law and removed from politics following the application decision. There is something unnerving, something not right for those countless voters of the ‘centre’ about an appointed judge removing an officeholder who received more votes than any other sitting politician in the country.
There is also a pragmatic reason to embrace the Divisional Court’s decision. The Toronto Star reported a City estimate that a by–election to replace Mayor Ford would cost taxpayers up to $9 million (assuming, of course, that Council wouldn’t have appointed a successor—a move that very few councillors supported). To put that figure into perspective, one of Ford’s hallmark cost cutting measures since taking office, the privatization of garbage collection services, will save the City somewhere between $8 million and $11.9 million in the first year.
As has been widely reported, Ford’s conflict of interest problems may not yet be finished. The applicant’s lawyer, Clayton Ruby, has indicated that his client will seek leave to appeal the Divisional Court’s ruling to the Supreme Court of Canada. In order for leave to be granted, the top court must be satisfied that “any question involved … is, by reason if its public importance … one that ought to be decided by the Supreme Court” (Supreme Court Act, s. 40(1)). That said, Paul Daly, a Professor of Law at the University of Montreal, has reservations about the likelihood of the Supreme Court granting leave. I tend to agree with Professor Daly and, for the legal and political reasons addressed here, hope that the Divisional Court’s ruling is the end of the road in this aspect of Mayor Ford’s legal troubles.