Town of Ajax integrity commissioner, harold g. elston

Citation: Mitchell v. Ashby, 2015 ONMIC 2 Date: 2015-04-01

REPORT OF THE INTEGRITY COMMISSIONER

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision.

https://events.ajax.ca/Meetings/Detail/2015-04-09-1400-General-Government-Committee-Meeting/807921ee-0450-42ff-8a9a-a9a500aaaffd (see item 4.3)

TABLE OF CONTENTS

THE CODE.. 3

SUMMARY OF FINDINGS.. 4

THE PARTIES.. 5

THE FACTS.. 5

THE COMPLAINTS.. 6

ANALYSIS.. 10

Section 7 – Open, Transparent Government 10

Section 10 – Conflict of Interest/Pecuniary Interest 11

Section 12 – Council/Staff Working Relationships. 11

Section 14 – Improper Use of Influence. 13

Section 15 – General Conduct 14

Section 16 – Compliance, Enforcement and Penalties. 15

CONCLUSIONS AND RECOMMENDATIONS.. 16

THE CODE

[1]. On October 15, 2013, the Town of Ajax (the “Town”) passed By-Law Number 90-2013, establishing a Code of Conduct for Members of Council (the “Code”). Section 1 of the Code sets out its purpose:

The Code of Conduct for Council (hereinafter the “Code”) serves as a guide to Members of Council (the “Members”) in the individual conduct of their official duties, helping to ensure that the Members share a common basis for acceptable conduct. It also serves to protect the public interest and encourage high ethical standards among the Members. The Code represents general standards; it supplements, but does not replace Members’ roles, responsibilities, actions, and behaviours required by various statutes, by-laws and policies. The Code does not replace personal values or ethics held by individual Members.

[2]. The key principles that underlie the Code are as follows:

a. Members shall serve and be seen to serve their constituents in a conscientious and diligent manner;

b. Members shall perform their functions with integrity, accountability, and transparency, avoiding the improper use of the influence of their office, and conflicts of interest, both real and apparent;

c. Members shall perform their duties of office in a manner that promotes public confidence and will bear close public scrutiny;

d. Members shall seek to serve the public interest by upholding both the letter and the spirit of the laws and policies established by the Federal Parliament, Ontario Legislature, and Town Council.

[3]. The Code’s purpose and principles make it clear that it is meant to serve as a guide to Members of Council in the individual conduct of their official duties, as they serve their constituents and perform their functions and duties. As well, it is an instruction to Members that they serve the public interest by upholding Federal, Provincial and Municipal laws and policies.

[4]. Section 16 of the Code speaks to compliance, enforcement and penalties. Subsection (b) of section 16 repeats the reminder to Members that there are rules and penalties beyond the Code. Subsection 16(b) states:

Members are accountable to the public through the election process. Between elections, they may become disqualified and lose their seat if convicted of an offence under the Criminal Code of Canada, for failing to declare a conflict of personal interest under the Municipal Conflict of Interest Act, or for being convicted of a corrupt practice under the Municipal Elections Act.

[5]. Simply put, then, the Code is to be applied to Members in the pursuit of their duties as Members of Council. In all other walks of life they are to be governed by their own values, all the while serving the broader public interest by obeying the law.

[6]. The necessary implication of this structure is that Members’ conduct in the pursuit of their duties as Members of Council will be subject to review and sanction by Council. Conduct outside their official duties will be governed by each Member’s own personal value system, as well as the laws of Ontario and Canada. Of course, the distinction between a Member’s public and private life is often difficult to establish, and, in some instances, traits displayed in a private capacity are of such a nature that they may be deemed to impact on the Member’s public role.

[7]. The Code also imposes limits on the timeliness of complaints and the currency of the conduct complained of. Such limits are common to both the civil and criminal law and are an important consideration in the assessment of these complaints.

[8]. Regarding time limits, subsection 16(e) states:

Any individual, including members of the public, town employees, and Members who have reasonable grounds to believe that a Member has breached a provision of the Code, may proceed with a complaint. Complaints must be submitted within six weeks of the matter becoming known to the individual and no more than six months after the alleged violation occurring. No action will be taken on a complaint received beyond these deadlines.

SUMMARY OF FINDINGS

[9]. This report details my investigation and findings with respect to the complaints by Paul Mitchell about the conduct of Councillor Renrick Ashby. I have reviewed and considered all the documents and submissions associated with Mitchell’s complaints, interviewed Mr. Mitchell and Councillor Ashby, and considered further written submissions from Mitchell.

[10]. For the reasons that follow, I find that, although I believe that on some matters Councillor Ashby has contravened the Code, the allegations of behaviour where I find a breach to have occurred were not made within the timelines set out in section 16(e) and, therefore, must be dismissed. On the other hand, as I will explain, on the allegations that may have been made in time, I am unable to find a breach.

[11]. Although the Code does say that, in the event of an out-of-time complaint, no action is to be taken, I felt that an out-of-hand dismissal, while technically correct, would do a disservice to the complainant, the respondent, and the Town. It also required a level of investigation to determine when, in fact, certain events occurred and when Mr. Mitchell became aware of them. Accordingly, at the risk of challenge to the process I have adopted, I respectfully present a full review of all matters complained of.

THE PARTIES

[12]. I interviewed Councillor Ashby on February 4, 2015, at his offices at the Scarborough Civic Centre. Mr. Ashby is a Senior Planner with Community Planning Scarborough District. He was first elected as Ward 2 Councillor in Ajax in a 2008 by-election and was re-elected in the municipal elections of 2010 and 2014. Councillor Ashby was open about the difficulties he has faced, but was adamant that the business and legal troubles he faces were not in any way related to his role or duties as a Councillor.

[13]. Councillor Ashby believes that, but for his position as a Member of Council, no one would be concerned about his conduct. With respect, that is, of course, the point.

[14]. I interviewed Mr. Mitchell at the Town’s offices, on January 21, 2014. I found him to be prepared, pleasant and cooperative, although clearly frustrated by what he sees as Councillor Ashby’s improper conduct.

[15]. In the 2014 municipal election, Mr. Mitchell ran as a candidate in Ajax’s Ward 2. Although Mr. Mitchell eventually withdrew from the race for the Ward 2 seat, during the course of his campaign he told me that he was “overwhelmed” by the information he was given; information which he claims suggested that Councillor Ashby was using his position to attract all manner of support, including financial.

THE FACTS

[16]. The facts which give rise to Mr. Mitchell’s complaints may be stated as follows:

a. On June 12, 2012, Councillor Ashby, as President of Nexx Night Club & Lounge Inc. (“Nexx”) applies to the Alcohol and Gaming Commission of Ontario (the “AGCO”) for a Liquor Licence Permit for Nexx.

b. On December 31, 2012, undercover Durham Police Officers charge Nexx and Councillor Ashby with offences under the Liquour Licence Act (the “LLA”) and the Town of Ajax Entertainment Establishment By-law Number 160-2006 (the “Entertainment Establishment By-law”).

c. May 2, 2013, Councillor Ashby pleads guilty to one charge under the Entertainment Establishment By-law, is fined $2,500.00, and given one year to pay.

d. May 7, 2013, Councillor Ashby pleads guilty to three counts under the LLA, is fined $2,000.00 for each offence, and is given one year to pay.

e. Neither the Entertainment Establishment By-law fine nor the LLA fines were paid within the one-year time limit; May 2nd and May 7th, 2014, respectively.

f. On May 23, 2014, Mr. Mitchell becomes aware of Councillor Ashby’s failure to pay the fines, thus starting the clock on the complaint regarding the non-payment of fines.

g. July 4, 2014: Deadline for Mitchell complaint about non-payment.

h. The Town notes Ashby in default and demands that the Entertainment Establishment By-law fine be paid by August 31, 2014.

i. On October 13, 2014, Ashby pays $4,575.00 to Region of Durham against LLA fine.

j. Mr. Mitchell attends at Oshawa court and discovers several claims for unpaid loans against Councillor Ashby on October 16, 2014.

k. On October 17, 2014, Councillor Ashby pays outstanding $3,000.00 to Region of Durham. The LLA fine, plus surcharges and penalties are now paid in full.

l. On October 21, 2014, Mitchell makes First Complaint.

m. On December 15, 2014, Ashby pays the Town $3,150.00 and the Town is now paid in full for the Entertainment Establishment By-law fine, surcharge and penalties.

n. Mitchell makes Second Complaint on March 26, 2015.

THE COMPLAINTS

[17]. In support of his allegations, Mitchell has submitted two distinct complaints. The first complaint was made by way of a Complaint Form/Affidavit, sworn on October 21, 2014 (the “First Complaint”). The second complaint was made by way of two Complaint Forms/Affidavits, both sworn on March 26, 2015 (the “Second Complaint”) (together, the “Complaints”).

[18]. The First Complaint attached Exhibits “A” through “O”, which comprised some 83 pages. The Second Complaint comprised some 127 pages, although many of these pages are a duplication of pages from the First Complaint.

[19]. In summary, Mr. Mitchell complains that Councillor Ashby: engaged in an illegal business; used his office to mislead officers investigating the business; failed to pay Court fines; engaged in activities for financial and personal interests, inconsistent with the impartial discharge of his civic obligations; and failed to disclose potential conflicts under the Municipal Conflict of Interest Act R.S.O. 1990, c. M.50, as amended (the “MCIA”).

[20]. Mr. Mitchell has framed his two complaints as violations of Section 7 (Open, Transparent Government), Section 9 (Confidential Information), Section 10 (Conflict of Interest/Pecuniary Interest, Section 12 (Council/Staff Working Relationships, Section 14 (Improper Use of Influence), Section 15 (General Conduct), and Section 16 (Compliance, Enforcement and Penalties) of the Code.

[21]. In his Affidavits, Mr. Mitchell details the facts upon which he relies and explains how those facts underlie his allegations that Councillor Ashby has breached several sections of the Code. Mr. Mitchell has done a thorough job of organizing his materials, so that each allegation references a specific Exhibit or Exhibits. For the purposes of this report, I have organized the major events that form the foundation of the Complaints, into three episodes. They are:

1. Councillor Ashby had a direct and leading role in the establishment and operation of Nexx Night Club & Lounge Inc. (“Nexx”), an establishment that was found to have illegally kept, offered and sold liquor. In connection with the operation of Nexx, Councillor Ashby was charged, convicted and fined in connection with three Liquor Licence Act offences and one offence under the Town of Ajax Entertainment Establishment By-law Number 160- 2006 (the “Entertainment Establishment By-law”) (the “Convictions”);

2. Councillor Ashby failed to pay the fines, within the one-year time period that the Court imposed (the “Fine Defaults”); and

3. Councillor Ashby borrowed significant sums from several individuals, failed to repay the loans under the terms, and is being sued (the “Civil Litigation”).

[22]. In the First Complaint, Mr. Mitchell organizes his submission into 12 paragraphs, each associated with a document or series of documents made an exhibit or exhibits.

EXHIBIT(S)

DESCRIPTION

GROUNDS

CODE

“A”

Durham Regional Police Media Release of Jan 18, 2013

Misled investigators; engage in illegal business; pursue financial and personal interests inconsistent with obligations; fail to disclose conflicts.

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“B”, “C”, “D”, “E”

Metroland Media articles of Jan 18, 23, May 9, 2013 and Oct 7, 2014

Confirms no liquor licenses; police “led on (chase) to find out if there was a licence; offences were serious; misled police, AGCO, Town and City of Toronto, publicly lie about non- payment of fines; engage in illegal business; financial and person interests inconsistent with obligations; fail to disclose conflicts.

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“EE”

Ontario Court “Information”, record of plea and fines

Proves default, became a “fugitive”, lied to the public, inconsistent with obligations, failed to disclose a conflict

14 a), b)

16 a), b), c), d), e)

“F”

Mitchell call log: May 23, 30, June 27, Oct 14, 2014

Non-payment confirmed; inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“G”

Durham Collections Clerk printout showing outstanding fines of

$7,575.00 as of October 9, 2014 (Mitchell note)

Public statements inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“H”

Email correspondence to Sue Molyneau, Toronto Fraud and Waste Hotline

– May to October 2014

Failed to notify Ajax of Toronto investigation; inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“I”

May 29, 2014 Complaint to Ontario Ombudsman

Request investigation of Ashby’s actions and “non- transparent” investigations by local municipalities

“J”

Sept 22, 2014 Complaint to Premier Wynne

Ashby charged with no licence; police led on (chase); offences serious; inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“L”

May 29, 2014 Complaint to Ministry of Municipal Affairs and Housing and Oct 21, 2014 response

Advised to contact local municipality

“M”

Superior Court Pleadings (various)

Ashby used his office to solicit money for Nexx; defrauded; financial or personal interests inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“N”

Superior Court Pleadings (various)

Ashby used his office to solicit money for Nexx; defrauded; endangered lives; financial or personal interests inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

“O”

Update of information sent to Sue Molyneau at City of Toronto

Up-dated information to add to earlier formal complaint; financial or personal interests inconsistent with obligations; fail to disclose potential conflicts;

9 a), b), c) and d) 10 a), b)

14 a), b)

16 a), b), c), d), e)

[23]. The Second Complaint is comprised of four parts: 1) a Toronto Star article dated March 16, 2014, and an Ajax News Advertiser article dated March 18, 2015 (reprint of Star article of March 16, 2014); 2) a six-page review of the Star article, with commentary and conclusions from Mr. Mitchell as to the appropriateness of Councillor Ashby’s actions; 3) a four-page submission setting out Mr. Mitchell’s interpretation of sections 7, 10, 12, 14 and 15 of the Code as they apply to Councillor Ashby’s actions; and 4) a lengthy email to the Town’s Clerk, Martin deRond, dated November 24, 2014, seeking to clarify the First Complaint, referencing the Exhibits associated with that complaint, and posing a series of questions.

ANALYSIS

Section 7 – Open, Transparent Government

[24]. I will now apply the provisions of the Code, to the behaviour that Mr. Mitchell complains of.

[25]. Section 7 of the Code is termed “Open, Transparent Government” and provides that:

a. Members will promote behaviour and actions conducive to an open and fair exchange of ideas;

b. Members will be advocates for the public process, and will ensure decisions are made in an open, transparent and democratic manner;

c. Members will promote public consultation and involvement in the decision- making process.

[26]. In his allegations of breach of section 7, Mr. Mitchell states:

Section 7 does not state that sections of the Code of Conduct applies to only one specific location in the Town of Ajax. It applies to all venues a council member choose (sic) to participate in. By not voluntarily, transparently and honestly answering the questions Councillor Ashby did not promote behaviour and actions conducive to an open and fair exchange of ideas. He did not advocate for the public process and insure (sic) decisions were made in an open and transparent and democratic manner. Clearly he chose not to be truthful and not to promote open and honest public consultation and involvement in the decision-making process. Councillor Ashby chose to “Block”, “Ignore”, “Misrepresent”, “Provide miss information” (sic), “interfere with fair exchange of ideas” and to be “Not to be transparent” …

[27]. As I understand this part of his complaint, Mr. Mitchell alleges that Councillor Ashby was not forthcoming when he, Mitchell, asked him about the charges and fines at an all candidate’s debate in the summer of 2014. I have been given conflicting versions of the exchange between Mr. Mitchell and Councillor Ashby and, although I accept that Councillor Ashby did not directly answer Mr. Mitchell’s question, I do not believe that by not answering the question, Councillor Ashby, can be said to have stifled an open and fair exchange of ideas. The other difficulty with this submissions is that, on that occasion, Councillor Ashby was not part of a decision-making process, such as a council or committee meeting, but was in a political debate. Accordingly, I do not find Councillor Ashby to have breached section 7 of the Code.

Section 10 – Conflict of Interest/Pecuniary Interest

[28]. Section 10 is the “Conflict of Interest/Pecuniary Interest rule. It provides that:

a. Members will not engage in any business transactions or have financial or other personal interests which are inconsistent with the impartial discharge of their civic obligations;

b. All Members shall be aware of their obligations under the Municipal Conflict of Interest Act and shall disclose any potential conflicts under the Act to Council in accordance with the Act.

[29]. Mr. Mitchell expresses his allegation of breach of section 10, as follows:

Councillor Ashby engaged in business transactions, financial transactions, personal interests which were inconsistent with the impartial discharge of his civic obligations Councillor Ashby did not truthfully disclosing (sic) his fines, convictions and defaults to the Town, the public and at the debate he benefitted personally and professionally with misinformation, non transparency (sic) in his re-election. By not being truthful and stating inaccurate information about excepting (sic) full responsibility he intimidated and mislead (sic) people for personal and professional gain.

[30]. Section 10 seeks to ensure that Members are impartial in their decision-making, that they disclose any direct or indirect pecuniary interest they may have in a matter, and do not participate in the discussion about, vote on, or attempt to influence the vote, on the matter. I have seen no evidence that Councillor Ashby was ever involved in discharging a “civic obligation” relating to Nexx, or in any of his loans, and although he had a clear pecuniary interest in Nexx, he did not participate in, vote on, or try to influence council on any matters related to Nexx. There is no breach of section 10.

Section 12 – Council/Staff Working Relationships

[31]. Section 12 is called: “Council/Staff Working Relationships”. It provides that:

a. Members are elected legislators and representatives of their constituents. Staff are ultimately accountable to the Chief Administrative Officer, and are responsible for implementing the decisions of Council, and ensuring the efficient and effective operation of municipal services;

b. Members and staff will work cooperatively based on shared values of honesty, trust, mutual respect, and leadership for continuous improvement;

c. Members are encouraged to contact staff to answer questions, identify concerns or request services that are normally available to any Ajax resident;

d. Where a Member’s request for information or services is outside the employee’s realm of responsibility, approved work plan, or available resources, the employee will inform the Member and their direct supervisor and/or Department Head, for an appropriate and timely response to their request for information or services;

e. Members shall be respectful of the fact that staff are charged with making recommendations that reflect their professional expertise and corporate perspective without undue influence from any individual Member of group of Members.

[32]. Regarding section 12, Mr. Mitchell claims that:

He did not notify staff or Council or seek council (sic) from staff. He did not work cooperatively based on shared values and honesty, trust, mutual respect and show leadership for improved relationships. By not disclosing his illegal activities concerning Provincial fines and not paying Town fines until after the election he misled the Town and public by using his influence which allowed him to be re- elected. By not being truthful and stating inaccurate information about excepting (sic) full responsibility he intimidated and mislead (sic) people for personal and professional gain.

[33]. Just as the heading suggests, section 12 of the Code provides guidance as to how Members and staff are to work together. There is nothing in the evidence to suggest that Councillor Ashby had any dealings whatsoever with staff related to the Nexx matter, or the Civil Proceedings. For there to be a breach of section 12, there must first be a decision to be implemented, a question asked, or a request for service that involves staff. To suggest that by not telling staff of difficulties which they could not possibly assist with he failed to work cooperatively or honestly with them misunderstands the purpose of the section. I find no breach of section 12.

Section 14 – Improper Use of Influence

[34]. Section 14, the rule regarding “Improper Use of Influence” states:

a. No Member shall use the influence of her or his office for any purpose other than for the exercise of her or his official duties;

b. Examples of prohibited conduct include the use of one’s status as a Member to improperly influence the decision of another person to the private advantage of oneself, a family member, or associate (business or otherwise); This would include attempts to secure preferential treatment beyond activities in which Members normally engage on behalf of their constituents as part of their official duties. Also prohibited is the holding out of the prospect or promise of future advantage through a Member’s supposed influence within Council in return for present actions or inaction;

c. For the purposes of this section, “private advantage” does not include a matter:

i. That is of general application;

ii. That affects a Member or her/his family members or associate as one of a broad class of persons;

iii. That concerns the remuneration or benefits of a Member as authorized by Council.

[35]. It is Mr. Mitchell’s contention that:

Councillor Ashby used his influence as a Councillor with the courts, the Town and the public and candidates at the Ward 2 debate by not directly answering questions truthfully about his default on paying fines. By not answering truthfully and stating inaccurate information about excepting (sic) full responsibility he intimidated and mislead (sic) people for personal and professional gain … By not disclosing his illegal activities concerning Provincial fines and not paying Town fines until after the election he mislead (sic) the Town and public by using his influence which allowed him to be re-elected.

[36]. The usual concern about influence is that a Member will use the power of his or her office to extract some benefit from a person by holding out the promise of using the office to either confer some benefit, or visit some harm, on that person, in exchange for the benefit. While Councillor Ashby may have avoided answering questions about his failure to pay the fines at the candidates’ debate, and may have intimidated and misled people, that conduct, even if true, while wrong, did not come about through an improper use of his influence.

[37]. I have struggled, however, with the question of whether Councillor Ashby did use his status as a Member of Council to secure private loans from the plaintiffs in the lawsuits that Mr. Mitchell has brought to my attention. In this regard, I note that, at least one of the lenders, suggests that he was comfortable lending money to Councillor Ashby because he was a Member of Council. In the end, though, it appears just as likely that Councillor Ashby was offering an opportunity and terms that the lenders found attractive and that it was the possibility of a good return on the investment, as much as his status, that prompted the loan. In any event, some of these cases are still before the courts, with all the facts and circumstances still to be determined.

[38]. Accordingly, I conclude that there was no improper use of influence by Councillor Ashby or contravention of section 14.

Section 15 – General Conduct

[39]. The Code provisions on “General Conduct” are found in section 15.

a. As a representative of the Town, every Member has the duty and responsibility to treat members of the public, one another, and staff appropriately and without abuse, bullying, or intimidation, and to ensure that the municipal work environment is free from discrimination and harassment;

b. A Member shall not use indecent, abusive, or insulting words or expressions toward any other Member, any member of staff, or any member of the public. A Member shall not speak in a manner that is discriminatory to any individual based on that person’s race, ancestry, place of origin, creed, gender, sexual orientation, age, colour, marital status, or disability;

c. During Council and Standing Committee meetings, Members shall conduct themselves with decorum and in accordance with the Town’s Procedural By- law.

[40]. Mr. Mitchell alleges that:

Councillor Ashby did not treat members of the public, Council, candidates and staff appropriately and with respect throughout the entire Nexx Lounge Club investigation, Court proceedings during the debate to date. By not being truthful and stating inaccurate information about excepting (sic) full responsibility he intimidated and mislead (sic) people for personal and professional gain. By not disclosing his illegal activities concerning Provincial fines and not paying Town fines until after the election he mislead (sic) the Town and public by intimidating and using his influence which allowed him to be re-elected.

[41]. Few would argue that the selling of liquor to the public without a licence, the operation of an Entertainment Establishment without a permit, the failure to pay fines within the time limits imposed by a court of law, and the failure to repay loans borrowed from constituents, can be considered as an “appropriate” treatment of members of the public. I find that, on the facts and leaving aside the timeliness of the Complaints, with respect to the Convictions and the Fine Defaults, Councillor Ashby has breached section 15 of the Code – General Conduct.

[42]. I would like to separately address the claim that Councillor Ashby’s conduct in the Civil Litigation should be considered a breach of the Code.

[43]. In support of his claims about the harm that Councillor Ashby has inflicted on others, Mr. Mitchell included the pleadings from several actions commenced against Councillor Ashby for unpaid debts. Mr. Mitchell has made regular visits to the Oshawa Small Claims Court in pursuit of details about Councillor Ashby’s failed financial relationships. I have reviewed these claims and see that, while they are indeed reflective of unpaid loans to Councillor Ashby, there is no suggestion in the pleadings that the loans were extended upon a promise of favour from Councillor Ashby in his capacity as a member of council. I also note that some of the claims appear to be resolved, others are being defended by Councillor Ashby, and I have been presented with no Decisions or Orders made by the Court.

[44]. I am also mindful of the implied separation that the Code makes between the public and the private, and its emphasis on the continuing application of a Member’s personal values and, of course, the laws of the Town, the Province and Canada. Indeed, Councillor Ashby’s behaviour has resulted in a fairly rigorous application of many such laws. Moreover, given the wide media attention to the Civil Litigation, Councillor Ashby will, I would think, be called to answer for these failed business and financial relations, at the polls.

[45]. Accordingly, I do not find that Councillor Ashby’s conduct in the affairs subject to the Civil Litigation constitutes a breach of section 15.

Section 16 – Compliance, Enforcement and Penalties

[46]. As we know, complaints must be submitted within six weeks of the matter becoming known to the individual and no more than six months after the alleged violation occurring. Mr. Mitchell’s First Complaint was made on October 21, 2014, while the Second Complaint was made on March 26, 2015. By simple operation of the calendar, Mr. Mitchell’s complaints with respect to the charges laid against Councillor Ashby in his capacity as President of Nexx, his convictions, and his failure to pay the fines were all known to Mr. Mitchell more than six weeks before submitting the First Complaint. Accordingly, I have no choice but to dismiss the Complaints related to those matters.

CONCLUSIONS AND RECOMMENDATIONS

[47]. For the reasons outlined above, I find that the part of the Complaints regarding the Convictions and the Fine Defaults, must be dismissed, as having been made outside the six-week window following Mr. Mitchell’s discovery of those particular transgressions.

[48]. If I am wrong in this conclusion, I do find that Councillor Ashby was in breach of the General Conduct provisions of the Code for operating an illegal business, conviction of Town and Provincial offences, and for failing to pay the fines within the time ordered by the Court.

[49]. The circumstances leading up to the Civil Litigation are a private matter, beyond the scope of the Code and my jurisdiction.

[50]. In the result, it is my recommendation to Council that, there being no contravention of the Code properly before me, no penalty be imposed on Councillor Ashby.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 1st day of April, 2015.

Harold G. Elston