Maika (Re), 2018 ONMIC 11

TOWNSHIP OF MADAWASKA VALLEY integrity commissioner, GUY GIORNO

Citation: Maika (Re), 2018 ONMIC 11 Date: October 19, 2018

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://madawaskavalley.civicweb.net/document/119061 (see minutes of November 5, 2018, item 6.2)

THE COMPLAINT. 3

SUMMARY. 3

BACKGROUND.. 4

POSITIONS OF THE PARTIES.. 10

Complainant’s Position. 10

Respondent’s Position. 12

Complainant’s Position in Reply. 14

PROCESS FOLLOWED.. 16

FINDINGS OF FACT. 18

ISSUES RAISED IN THE INVESTIGATION.. 20

A. Jurisdiction. 21

B. Expansion of Grounds and Late Raising of Issues. 22

C. Truth. 23

D. Vision and Purpose. 28

E. Section B.3(ii) 28

F. Section B.3(iii) 30

G. Section C.5(c) 30

OTHER ISSUES.. 31

RECOMMENDATIONS.. 34

APPENDIX 1. 34

Relevant Provisions of Code of Conduct, By‑Law Number 2014‑138. 34

APPENDIX 2. 37

Relevant Provisions of Procedural By‑Law, By‑Law Number 2013‑12. 37

THE COMPLAINT

The Complainant alleges that Councillor Shelley Maika (the Respondent) breached the Code of Conduct for Members of Council of the Municipal Corporation of the Township of Madawaska Valley, By-law Number 2014-138, in a comment made during a committee meeting.
Specifically, the Complainant alleges that the Respondent breached five separate provisions of the Code:

“Council Team Vision”
Section A, “Purpose of the Code of Conduct”
Section B.3(iii) (conduct that prejudices the provision of a service or services to the community)
Section B.3(ii) (abuse of power)
Section C.5(c) (accepting services from an employee of the municipality)

The last two provisions of the Code were not cited in the original complaint but were added through correspondence to me. The allegations under these sections were first made August 23, 2018, and March 22, 2018, respectively. Despite the late raising of them, some two years after the initial complaint, I have addressed them in this report.
Under the Municipal Act, I must generally maintain confidentiality, but I may disclose in a report such matters as in my opinion are necessary for the purposes of the report. In my opinion it is not necessary for the purposes of this report to name the Complainant, but it is necessary to describe the Complainant’s relationship to the facts in issue, including the Complainant’s authorship of the letter to the editor.

SUMMARY

I find that Councillor Maika did not contravene the Code.
I find that the Integrity Commissioner/Code of Conduct process is not suited to policing the truth of political speech.
Further, this is a case about a comment made during the course of political debate. Any inaccuracy or exaggeration should be addressed through political debate, as opposed to the Code of Conduct.
I find no contravention of sections B.3(ii) and B.3(iii) of the Code. I find insufficient evidence to establish a breach of section C.5(c). I confirm that the “Vision” and “Purpose” sections of the Code are not provisions that can be contravened.

BACKGROUND

The Respondent was represented by legal counsel, Mr. David Little. The Complainant was self-represented.
By-law Number 2017-71 appointed me as Integrity Commissioner for the Township effective June 6, 2017. It repealed By-Law Number 2016-67, which had appointed the previous Integrity Commissioner. As of that date, I inherited several complaints, including this one, filed with the previous Integrity Commissioner.
The complaint arises from the February 9, 2016, public meeting of the Recreation, Heritage and Culture Committee. Among the topics discussed at the meeting were expenditures related to a designated heritage building known as the Barry’s Bay Railway Station.
Located at 19503 Opeongo Line, Barry’s Bay, the Railway Station was built in 1894 to serve the Ottawa, Arnprior and Parry Sound Railway Company (one of the predecessors of CN¹). Regularly scheduled passenger service was discontinued in the early 1960s, but some train traffic continued until the 1970s. The station was sold to the Village of Barry’s Bay in 1981 and, since municipal amalgamation in 2001, has been owned by the Township.
Welcome to the Barry’s Bay Railway Station: The Face of the Madawaska Valley, a staff report prepared for a November 2015 Special Council Meeting, helpfully describes the history of the building, its uses, and its contributions to the community around the time of the comment that gives rise to this complaint.²
The Respondent’s statement was reported as follows in the February 17, 2016, issue of the Valley Gazette:

“I would like to know what the cost of operating that facility is over the course of six months in the winter,” she said.

Maika explained that there are potential plans of re-insulating the railway station in the future.

“I know, as does the public, the place is full of asbestos,” she said. “So what kind of investment will we be looking at ripping apart a heritage building, which the minute those walls come down, we’ve got problems, to insulate it properly to function during the winter? Because our major tourist season is the summer and early fall.”

The Valley Gazette reports that after the Respondent’s statement, the committee chair, Councillor Bromwich, responded:

At this point, Bromwich hammered the gavel down.

“Let’s not muddy the waters any muddier than what they are now,” Bromwich said. “Let’s stick to this particular situation without clouding it with innuendoes or accusations.”

The Respondent confirms that the newspaper accurately reported her words.
Her statement was made in the context of a discussion about whether the Township should spend taxpayer dollars to reinsulate the building’s walls.
The Complainant takes issue with the following portion of Councillor Maika’s statement: “I know, as does the public, the place is full of asbestos.”
Before the complaint was transferred to me, the previous Integrity Commissioner appears to have devoted significant effort to exploring the factual basis for the Respondent’s comment on asbestos. For reasons that I explain below, I take a different view than did my predecessor on the role of the Integrity Commissioner in policing the accuracy of political speech. Nonetheless, I gave the parties extensive opportunity to address the facts and the Respondent’s factual understanding. They both did so.
The previous Commissioner asked the Respondent to provide him with the material on which she relied in making the statement. (As I explain later, I do not believe that political speech ought to be dissected in this manner. Be that as it may, the Respondent answered my predecessor, then both parties addressed the point with me, and I have taken all that information into account.) The Respondent stated that between September and December 2013 there may have been a report in the local newspaper dealing with presence of asbestos in the building. She did not provide the previous Commissioner or me with any copy.
The Respondent told the previous Commissioner that quite some time prior to the February 9, 2016, meeting she had researched overall expenditures on the Railway Station. She showed the previous Commissioner copies of the September 30, 2013, and October 31, 2013, minutes of the former Recreation, Heritage and Community Economic Development Committee.³
Two sections of the September 30, 2013, minutes (which, interestingly, refer to the station by different names) mention asbestos:

6.2. Barry’s Bay Train Station - Recreation and Community Development Coordinator

RE: Asbestos Testing

The Recreation and Community Development Coordinator explained that an asbestos test was completed at the Barry’s Bay Railway Station and that the report should be available shortly.

6.3. Barry’s Bay Railway Station - Recreation and Community Development Coordinator

RE: Report on Installation of Insulation Tender

The Recreation and Community Development Coordinator explained that there has been a concern with the existing material in the walls at the Railway Station. The cost of insulating could be quite significant because the interior walls or exterior walls and the current material may have to be removed prior to replacing with insulation. Committee suggested that they review the asbestos test results prior to proceeding to award the tender for this work.

The October 31, 2013, minutes do not mention “asbestos” at all. They do refer, in Item 6.4, to a “designated substance”:

6.4 Staff Report - Recreation and Community Development Coordinator -

October 30, 2013

RE: Designated Substance Report for Visitor’s Centre

RE: Designated Substance Survey for Visitor’s Centre

RE: Designated Substance Supplemental Report for Visitor’s Centre

The Recreation and Community Development Coordinator reviewed his report with Committee noting that the issues that are noted for designated substance is acceptable until it is disturbed. Direction was given to the Recreation and Community Development Coordinator to obtain costs for removing the exterior walls and insulating the building as well as obtaining any funding or grants available for such projects.

The minutes refer to a “Staff Report - Recreation and Community Development Coordinator,” a “Designated Substance Report for Visitor’s Centre,” a “Designated Substance Survey for Visitor’s Centre” and a “Designated Substance Supplemental Report for Visitor’s Centre.” The minutes do not, however, disclose what the three reports and the survey say.
The previous Commissioner was of the view that the Respondent should have read these reports, and I invited to the parties to comment (and they did comment) on his preliminary views that:

In conducting her initial research, the Respondent located the September 30 and October 31, [2013], minutes of the Recreation, Heritage and Community Economic Development Committee. Having read these, she ought to have come across the Designated Substance Report of the Engineering firm, the supplement, and the report of the Recreation and Community Development Coordinator on the topic of asbestos in the Railway Station. One of these, the supplemental report, stated that the plaster-on-lathe wall in the basement did not contain asbestos.

And:

…. in light of the material that the Respondent had access to but did not access … The Respondent did not exercise reasonable care and diligence in checking the information reasonably available to her before she made the statement, in the context of challenging the prudence of spending taxpayer dollars on insulating the walls of the building.

The Respondent was not elected until 2014. She acknowledged having read minutes of meetings from 2013: that is, documents that pre-dated her service on Council. Indeed, during her Council term, the Recreation Heritage and Community Economic Development Committee no longer existed. I find that it is unreasonable to presume that the Respondent, even after reading the October 31, 2013, minutes, would have located, read and internalized three reports mentioned within. I draw no conclusions from the failure to do so.
In that context, I will briefly describe the reports:
The “Designated Substance Report” is a highly technical report based on the “Designated Substance Survey” conducted by CM3 Environmental Inc. The survey was conducted to comply with Ontario Regulation 278/05: Designated Substance - Asbestos on Construction Projects and in Buildings and Repair Operations.
Sixteen samples were identified by visual inspection, collected, and sent to Texas for analysis by polarized light microscopy with dispersion staining, using United States EPA method 600/R-93/116. These consisted of: five samples of drywall filler, five samples of plaster, three samples of floor tile from washroom #1 and three samples of vinyl flooring from washroom #2. Three of the samples (VT-01-A, VT-01-B and VT-01-C) were found to contain 3% chrysotile asbestos.
At page 2, the report cautions that, “The designated substances mentioned above may be present in partial and non-accessed areas and sealed/buried spaces.”
Appendix C, Statement of Limitations further states that, “substances addressed by the investigation may exist in areas of the site not investigated or in quantities not ascertained.”
The “Supplemental Report: Designated Substance Survey” (File: DPM-1528) states: “The plaster in the basement was debris from above. In the basement you can look up, into a wall cavity and view the plaster-on-lathe wall. Some must have been disturbed at some point and fallen to the ground. The plaster does not contain asbestos.”
The staff report of the Recreation and Community Development Coordinator briefly summarized the other reports.
One week after the initial news story, the Valley Gazette published and prominently placed the Complainant’s letter to the editor that made extensive reference to these reports in order to correct the Respondent’s statement. It is useful to reproduce the letter in its entirety:⁴

Councillor Maika’s allegation that the Railway Station is “full of asbestos”

In your paper dared February 17, in your report of the proceedings of the recreation, heritage and culture committee meeting on February 9, you reported that Councillor Maika, during a heated debate about the Railway Station, asserted the following:

“I know, as does the public, the place is full of asbestos.”

You will be aware that this is a very serious matter given the well-known serious health consequences that can potentially arise from exposure to asbestos. If in any doubt, reference to the Government of Canada's website on the subject will confirm this.

Her remarks therefore caused me a good .deal of concern not only because my [family member] works at the Railway Station but because of the implications for many of your readers who frequently spend time, for one reason or another, using the facilities. In fact, I found it difficult to believe that what Councillor Maika said could be true and therefore I contacted the CAO of the Township of Madawaska Valley to clarify the position. He referred me to a recent Report by CM3 Environmental which contains the results of a thorough environmental investigation of the Railway Station. I refer you to the following extract from Mr. Nopper’s Report to Council:

“Sixteen samples were taken from the three levels of the Railway Station; Basement, Main Floor and Second Floor. Samples collected were plaster, drywall filler and vinyl sheeting flooring. The test method of Polarized Light Microscopy/Dispersion Staining were used to identity if one of the seven designated substances was identified in the product.

‘‘The result of most tests resulted in negative for the seven designated substances. Samples VT-01-A through VT-01-C, from washroom #1 were found to contain 3 per cent Chrysotile Asbestos. No other Asbestos was found in the building.”

Mr. Nopper’s report is available at: https://bit.ly/2PSPcSU

The full environmental Report can be seen at: https://bit.ly/2NMLCbn

As you will see, the contents of this Report leave no doubt that Councillor Maika’s insinuation that the Railway Station is riddled with asbestos and that this is common knowledge has no foundation in truth. Whereas the investigator found a minimal amount of asbestos (contained in some floor tiles), any suggestion that the building is “full of asbestos” is outrageous, given that such a statement might cause needless health concerns and deter people from going there.

Furthermore, the CAO has advised me that the floor tiles in question were removed as soon as possible following the Report and thus there is expert opinion available to all Councillors as well as the public that the Station is completely free of asbestos.

I hope therefore that you will at the earliest possible opportunity use the information within my letter, once you have satisfied yourself as to its accuracy, to publish the information contained above.

In contrast to the prominence of the Complainant’s letter to the editor, the asbestos comment by Councillor Maika appeared in the 61st paragraph of an 83-paragraph article, on the third page.⁵ Unlike the letter, the article included no headline or sub-headline that mentioned asbestos. The letter to the editor filled more than 19 times as much space as the passage containing Councillor Maika’s original comment.⁶
By the time she was interviewed by the previous Commissioner, the Respondent was in possession of the Designated Substance Report from 2013. However, when she made the comment at the February 9, 2016, committee meeting, she had not yet read it.
The Respondent and all other Council Members were present during a 6.5-hour Special Council Meeting, November 24, 2015, that started with a tour of the Railway Station led by the Recreation and Community Development Coordinator. While the meeting minutes do not mention asbestos, the parties agree that during this meeting the Coordinator made some reference to the 2013 reports and the removal of the floor tiles that contained asbestos.
I received, during the investigation, a large volume of submissions, evidence and information from the Complainant and the Respondent, through both written submissions and oral interviews. I have taken all the submissions, evidence and information into account.

POSITIONS OF THE PARTIES

In this section I am summarizing the positions of both parties. This section does not contain my findings. For convenience I do not start each sentence with the words, “The Complainant/Respondent says.” Nonetheless, everything in this section is a position taken by either the Complainant or the Respondent, and inclusion in this summary does not mean I am adopting it.
The parties also provided extensive input on other issues, not listed below, such as, for example, (a) whether the Railway Station was financially self-sustaining, and (b) the arguments that comprise the political dispute that was the context for the comment about asbestos. I am not summarizing the parties’ positions on issues such as the Railway Station’s finances because the issues are not relevant to whether the Code was breached. Similarly, I do not summarize the content of the underlying political dispute, except as necessary to confirm that there was an underlying political dispute.

Complainant’s Position

Not only was the statement untruthful but Councillor Maika must have known it to be so. There was concrete evidence that there was no asbestos at all in the building. The Railway Station is completely free of asbestos. Asbestos was detected only in the vinyl tiles in one of the washroom floors. The staff confirmed that the affected tiles were subsequently removed.
At the November 24, 2015, meeting, that is, only two months before she said the contrary was true, the Respondent heard the Recreation and Community Development Coordinator give the building a clean bill of health so far as asbestos was concerned.
From his reaction, it is clear that the meeting chair, Councillor Bromwich, was “aware of the inaccuracy of the Councillor’s statements [sic]⁷ [and] was having none of it.”
Not only did the Respondent know of the favourable environmental report before she made the comment, after her published misstatement she was reminded by the CAO of the existence of the report. She was therefore immediately in the position of being able to verify for herself by reading the report and then to do the honourable thing by correcting her misstatement.
The Respondent has shown no evidence of contrition. At no time has she made any attempt to set the record straight in order to alleviate any public concern. She has not apologized.
In reference to the specific provisions of the Code:
The Respondent’s untrue allegation about the existence of potentially toxic material in the Railway Station, coupled with the misrepresentation that this was commonly known to be the case, was an abuse of power contrary to section B.3(ii). She intended to “use her authoritative, insider status to sow seeds of concern about potential health hazards to users of the premises.” The abuse therefore demonstrably includes some element of bad faith or dishonesty.
The Respondent’s failure to retract her words after they were printed in the Valley Gazette or to apologize compounds the bad faith and dishonesty.
The Respondent’s behaviour contravened section B.3(iii) by prejudicing the provision of a service or services to the community. Specifically: “The Railway Station, in 2015, recorded in excess of 13,000 visitors. This included children attending educational programs, as well as visitors and people seeking information about the local area, etc. Because of the well-known potentially harmful effects of exposure to asbestos, anybody learning that a building was ‘full of it’ would understandably have concerns for their health. This would inevitably deter some people from spending much time in or even entering such a building and would also cause concern to former users of it, particularly those, for example, employees, who had spent considerable time in it. Cognizance must also be taken of the fact that the Respondent attempted to add greater credibility to her untrue statement by misrepresenting that it was common knowledge (‘as does the public’) that it was full of asbestos.”
By accepting representation in this proceeding from the Township’s solicitor, the Respondent breached section C.5(c).
Following the issuance of my report in Moore v. Maika, 2018 ONMIC 7, the Complainant accepts that the Vision and Purpose sections of the Code do not contain “enforceable rules” as such, but rather can be referred to, to give direction on how the specific Code provisions should be interpreted.
As to whether the Code ought to apply to a statement made at a meeting of a Council committee, the Complainant distinguishes this case from the situation in Moore v. Maika, on the following basis:

The Respondent was not a member of the committee and is not entitled to the same “protection” as Councillors who were actual members of that committee and entitled to vote at the meeting.
The Respondent made her claim knowing that it was untrue for reasons contained in the earlier submissions. This is another reason that she is not entitled to the same protection.
The Respondent’s subsequent conduct in failing to retract and to apologize does fall within the Code of Conduct as that conduct did not take place during a Council meeting.

Respondent’s Position

The Respondent’s arguments were communicated through her legal counsel, Mr. Little. They are summarized in this section.
It is irrelevant that the Respondent did not qualify her words by adding, “in my opinion.” Whenever a municipal Councillor speaks, it is assumed the Councillor is expressing an opinion.
Councillor Maika confirms that she had no proof that the building is full of asbestos. She didn’t misrepresent that she did have such evidence. She had a suspicion based on some evidence and an awareness of the possibility.
No report says the Railway Station is free of asbestos. The Designated Substance Survey tested for asbestos in sixteen locations, and found asbestos in three of them. The fact that asbestos was identified in some parts of the building (and subsequently removed) does not prove that there is no asbestos elsewhere in untested areas.
She acknowledges that at time of making her statement she had not read the Designated Substance Report.
It is unreasonable to think that before addressing the re-insulation issue at a heated public meeting the Respondent would have to undertake extensive research in the municipal files and thoroughly review a lengthy engineering report. What she did was read Council meeting minutes to understand the issues. These minutes were of meetings in 2013 that preceded her tenure as Councillor by more than one year. It is unreasonable that a Councillor would be expected to research carefully and understand engineering documents that were referred to but not attached to the minutes, especially ones that pre-dated her service.
Reading only the 2013 minutes (not the reports) confirmed her view that, generally, buildings of the age of the Railway Station do contain asbestos. She also felt that a more detailed testing could have been performed.
The September 30, 2013, minutes created an impression that the walls of the train station may contain insulation that had to be removed, and may contain asbestos. The October 31, 2013, minutes gave the impression that there were designated substances in the walls that were “acceptable” until disturbed.
The Respondent was present at the November 24, 2015, meeting when Recreation and Community Development Coordinator discussed the reports and removal of the asbestos. She states, however, that there was a significant level of distrust between her and the Coordinator. She feels that he wanted more funding for the Railway Station and did not neutrally present related issues to Council. She characterizes the November 24, 2015, meeting as a “sales job” for continued or increased funding that was devoid of meaningful financial analysis. She therefore did not trust any representations he made about the Railway Station building, including his analysis of the Designated Substance Report.
To require that every utterance of Councillors in the exercise of duties be absolutely true is imposing an unreasonable standard. Politicians do not deal with exact truths and even the Designated Substance Report deals with exact truths. To the extent that the Respondent had an honest belief, she was entitled to air it in a discussion about whether it was financially prudent to insulate the Railway Station. As long as a Councillor holds a belief, she is entitled to speak it.
Councillor Maika’s statement was rhetorical and made in a meeting about a contentious matter. She offered no proof and she did not represent that there was proof. Her statement was not meant to be taken literally and it is unlikely that anyone did so. She had a reasonable belief that what she said was true.
The phrase “as does the public” is rhetorical and essentially meaningless. She was simply referring to her belief that she represents a certain constituency and that she suspects that some of that constituency would agree with her.
The phrase “full of asbestos” is an obvious exaggeration, not meant to be taken literally. No one would consider that the building was “full of asbestos” – whatever that would mean. People often use figures of speech to make a point. For example, the Complainant speaks of a hockey arena “hemorrhaging money.” These are rhetorical devices, creating a strong impression and quite acceptable in communication, but not intended to be taken literally. No one expects these mildly hyperbolic phrases to be supported by concrete evidence.
The Complainant’s letter to the editor (February 24, 2016) was an effective response and was the only public discourse resulting from Councillor Maika’s comment.
The provision of a service or services (section B.3(iii)) is not defined in the Code. In human rights law, services are broadly defined and include health care (including mental health care), the criminal justice and the court system, government services (including social assistance), education, child welfare, insurance, shops and restaurants.
There is no evidence that the services offered by the Railway Station have in fact been prejudiced. No one but the Complainant has raised the issue in a public forum. There is no evidence that anyone avoided using the train station because of Councillor Maika’s belief, or that any employees of the Railway Station were concerned about their health because of her comment. Councillor Maika understands that traffic to the Railway Station has been unaffected by her comment. Therefore it is purely conjectural that the comment in question prejudiced the provision of any services to the public.
The Respondent took the position that the interpretations in Moore v. Maika, 2018 ONMIC 7, should be adopted and applied in this case.

Complainant’s Position in Reply

The Respondent’s actions are blameworthy because she failed to examine the specialist report that she acknowledges she was aware existed. She failed to read the report despite claiming she wanted to familiarize herself with “expenditure on the Railway Station.”
By her own admission the Respondent’s skepticism (on asbestos) was based on her own choice not to inform herself. It is reckless at best to engage in scaremongering on the basis of such ill-informed skepticism.
The Respondent has changed her position on the November 24, 2015, meeting. She never denied hearing the Recreation and Community Development Coordinator give the building a clean bill of health⁸ but the explanation that she did not trust him is new.
If she did not trust the Coordinator then she could have checked the Designated Substance Report to confirm or to refute what the Coordinator had said. She did not do so.
Further, the then-Coordinator cannot defend himself because he now lives in another province.
A public statement made that the building is “full of asbestos” is, in the light of the Designated Substance Report, which the Councillor knew existed but chose not to read, reprehensible
The building was extensively examined by specialists in the field and no contrary indications have been identified by anybody since.
On the question of whether Councillor Maika’s comment had an effect on the provision of services, the Complainant provided a statement by a former employee that included the following:⁹

Mr. Little [the Respondent’s lawyer] suggests that Councillor Maika’s comments [sic]¹⁰ had little or no effect on the provision of services by staff at the Railway Station. However, we had to reassure most parents, volunteers, artists, and workshop attendees that winter that there was no hazard from asbestos.

The Complainant also provided reply submissions dealing with revenue neutrality, financial implications and the respective treatments of the Railway Station and the Arena. As I have explained I do not find these issues relevant to the determination about contravention of the Code.

PROCESS FOLLOWED

The process has been exceedingly fair. I have received, read and considered numerous submissions from the parties. The parties have had the opportunity to address every conceivable issue.
In operating under the Code, I follow a process that ensures fairness to both the individual bringing a complaint (Complainant) and the Council Member responding to the complaint (Respondent). The fair and balanced process I normally use is consistent with the requirements of the Code. The process includes the following elements:

The Respondent receives notice of the complaint and is given an opportunity to respond.
The Respondent is made aware of the Complainant’s name. I do, however, redact personal information such as phone numbers and email addresses.
The Complainant receives the Respondent’s response and is given an opportunity to reply.
The Respondent receives the Complainant’s reply and is also given the opportunity to reply.
After the reply stage, I often accept supplementary communications and submissions from the, but only on the condition that parties generally get to see each other’s communications with me. I do this in the interest of transparency and fairness.

The complaint-response-reply process is typical. In this case, however, the parties received many additional opportunities to address the issues.
This investigation differs from others in that I assumed responsibility for it after it was referred to the previous Integrity Commissioner. The previous Integrity Commissioner had already started to investigate the Complaint and to interview the parties, and had prepared a draft report of factual findings.
As Integrity Commissioner, I am responsible for ensuring that an investigation is both complete and fair to all parties involved. I also take economy and efficiency into account as I conduct my investigation to avoid unnecessary duplication of activities that may be costly to the Township.
In light of these responsibilities, I shared the previous Integrity Commissioner’s draft findings of fact with the two parties and invited their comments on the factual findings. Further, that I give them the opportunity to provide me with input on how the provisions of the Code apply to those facts. I proposed this in the interest of fairness to both parties and in order to be respectful of the work that had already been done.
I sent to both parties a letter containing draft findings of fact from the previous Integrity Commissioner. It also included additional questions on matters of fact and on how the Code should be interpreted and applied to the facts. The question of how the Code should be interpreted and applied is fundamental to this proceeding, because my authority is limited to alleged contraventions of the Code.
I provided a reasonable extension of time so that both parties could submit full and complete answers.
Both parties then had an opportunity for reply. I received reply material from both parties. In then received additional material in subsequent months.
After Moore v. Maika, 2018 ONMIC 7, was issued, I gave the parties an opportunity to address the interpretations of the Code that it contained.
On March 22, 2018, the Complainant alleged a breach of section C.5(c). On August 23, 2018, the Complainant alleged a breach of section B.3(ii). While I have grave concerns about the raising of allegations so late, the Code does not impose a deadline for making allegations. (It should.) I am addressing these provisions.
In addition to reviewing numerous emails, letters and submissions, I interviewed each party. I twice visited the Railway Station in person.
Throughout the process, I received numerous pieces of correspondence from the parties. I ended up reviewing and taking into account a large volume of material. This includes the official submissions of the parties, subsequent letters and emails, and the evidence I received during telephone and in-person interviews.
While not all material is specifically mentioned in this report, I have reviewed and considered it all, and taken it all into account in this report.
One reason for the scope of the inquiry relates to transfer from the previous Integrity Commissioner. My predecessor had pursued issues and asked the parties to address questions that, ultimately, are not relevant to the determination under the Code. As a matter of fairness, however, I felt compelled to let the parties address fully all of the many topics being pursued by the previous Integrity Commissioner. I then carefully considered those topics and the evidence related to them in making a determination under the Code.
The wide opportunities given to the parties to address issues have generated a very large volume of correspondence and contributed to considerable delay, but they have also ensured that the process has unquestionably been fair.
Finally, it is important to note that while I invited the parties to comment on the previous Integrity Commissioner’s draft findings of fact, all the findings of fact in this report are my own, made based on the evidence and information before me.

FINDINGS OF FACT

Many of the relevant facts are set out under the heading “Background” at the beginning of his report.
I find as a fact that at least as early as November 24, 2015, the Complainant himself was aware of the Designated Substance Report and the removal of asbestos. I accept his words that:

It is the case that what incensed me the most about her false statement about the potentially hazardous environment in the Railway Station was, as mentioned in the Referral, my knowledge that I was present at the same meeting [November 24, 2015] that she was. I vividly recall [the Recreation and Community Development Coordinator] standing outside the building and addressing his audience prior to conducting a tour of the interior and hearing him say that an environmental study of it had been recently carried out. He made specific reference to asbestos pointing out that only a minimal amount had been discovered and that it had been subsequently removed. I recall being reassured by this because [a family member] worked there.

I find as a fact there is no evidence that the Respondent’s comment negatively affected attendance at the Railway Station. According to letter from the employee who worked there, the effect was the need to reassure parents, volunteers, artists, and workshop attendees that there was no hazard from asbestos. The effect occurred “that winter” and the season was almost over when the February 17 newspaper reported the comment.¹¹
I find as a fact that the letter to the editor rebutting Councillor Maika’s comment and correcting the record was many times more prominent that the originally published comment.
I find as a fact that the Complainant’s letter to the editor was the only public reaction to the asbestos comment.
I find as a fact that the Respondent’s comment about asbestos was made in the context of a political debate over funding for the Railway Station (or, more broadly, funding for art and culture). Councillor Maika was or is a central figure in that political debate. For purposes of this report I am prepared to accept the accuracy of the facts contained in the following statement by the Complainant:

The Railway Station was in many people’s eyes the hub of Madawaska Valley. Its supporters trumpeted the fact that it had the highest attendance of any such centre in Renfrew County, showing a steady increase of visitors year over year, primarily because of the breadth of activities that were carried on there. This included, apart from tourist information and guidance, a museum, an art gallery and a centre for education both for adults and for children. The Respondent had been and continued to be, after the meeting in question, in the forefront of those opposed to taxpayer monies being used for arts and culture. [emphasis added]

I also accept, for purposes of this report, the Complainant’s claim that the Respondent showed a pattern of scrutiny of the Railway Station’s operations:

In my Referral, I make reference to the conduct arising during a “heated discussion about funding of The Railway Station.” Unfortunately this was the rule rather than the exception during this period in which the Respondent and her colleague, Councillor Peplinski, carried out a sustained micro-analysis of all aspects of The Railway Station’s activities. [emphasis added]

And:

That Special Council Meeting demonstrated that The Railway Station was actually for all intents and purposes self-sustaining (revenue-neutral), the moreso when also considering the economic development benefits to the local business community through the cultural and tourism activities it was responsible for. Notwithstanding this insight given at the Special Meeting to all members of Council, this Councillor did not change her strategy. Rather, she ramped it up subsequently, even to the point of having Committee meetings spend disproportionate time poring over previously-approved trivial expenses: e.g., the cost of milk, postage, envelopes, etc. [emphasis added]

And:

She [the Respondent] was in attendance at the [February 9, 2016] meeting, as she was wont to do at all such meetings that contained consideration of the Railway Station budget. This was because she was chief agitator and cheerleader for those members of the community, some of whom usually attended with her, who shared her position relating to funding art and culture. [emphasis added]

I find (as the above passages reveal) that the debate over funding for the Railway Station (and arts and culture) was highly charged. This debate was the context in which the 12 words on asbestos were uttered.¹²
I accept the parties’ characterization of the meeting where the comment was made. The Respondent’s counsel described it as, “a heated public meeting about whether it was a good financial investment to reinsulate the railway station.” The Complainant described the context as essentially the same.
For the reasons that follow, it is unnecessary for me to make findings on the presence of asbestos in the Railway Station, on the meaning of the engineering reports, and on the Respondent’s state of mind.

ISSUES RAISED IN THE INVESTIGATION

I have considered the following issues:

Preliminary

(A) Does an Integrity Commissioner have jurisdiction over a statement made during a meeting of Council or a committee?

(B) Should I consider a section of the Code not mentioned in the original Complaint? Should I consider a new allegation raised months later?

Analysis and Findings

(D) Is it possible to contravene the “Vision” or “Purpose” of the Code? Do these provisions create substantive obligations that Council members must follow?

(E) Did the Respondent breach section B.3(ii) by abusing power?

(F) Did the Respondent breach section B.3(iii) by a prejudicing the provision of a service or services to the community?

(G) Did the Respondent breach section C.5(c) by accepting the services of an individual who provides services to the municipality when the individual is being paid by the municipality?

A. Jurisdiction

Does an Integrity Commissioner have jurisdiction over a statement made during a meeting of Council or a committee?

In Moore v. Maika I concluded that I probably lack jurisdiction over meeting conduct where the subject matter of the complaint falls within the boundaries of the rules and enforcement mechanisms of the Procedural By-law (see Appendix 2).
The Respondent submits that the same conclusion ought to apply in this case. The Complainant submits that this case is different, because the Respondent was not actually a member of the committee, because she made a statement knowing it to be untrue, and because her failure to retract and apologize was conduct that occurred outside the committee meeting.
While I stand by the conclusion in Moore v. Maika, I find that it does not apply here. The reason is that the subject matter of the complaint does not involve conduct contrary to the Procedural By-law.
I recommended in Moore v. Maika “That, to provide greater clarity, the Code of Conduct be amended to make clear that conduct that is contrary to the Procedural By-law should be dealt with under the Procedural By-law and not as a Code of Conduct complaint.” [emphasis added]
The principal issues here are the accuracy, honesty and truth of a comment. Those are not the subject matter of the Procedural By-law. Disorder and breaches of decorum are covered by the Procedural By-law. Insulting and indecent language is covered by the Procedural By-law. Untruths and factual inaccuracies are not.
A presiding officer is able to identify a breach of order or the use of unparliamentary language. The presiding officer cannot be expected to know whether a factual claim is correct. The present case, for example, involves facts located in an engineering report.
In this case, the committee chair did happen to intervene immediately after the comment was made:

At this point, Bromwich hammered the gavel down.

“Let’s not muddy the waters any muddier than what they are now,” Bromwich said. “Let’s stick to this particular situation without clouding it with innuendoes or accusations.”

The chair’s quick intervention does not, however, mean that issues of factual inaccuracy are covered by the Procedural By-law. My understanding is that the Procedural By-law does not clearly apply to factual accuracy. Consequently this is not a case in which my jurisdiction is ousted by the Procedural By-law.
Nonetheless, whether the Code of Conduct applies, and how it ought to apply, to questions of truth and accuracy are a separate issue. I consider that separate issue under heading C, below.

B. Expansion of Grounds and Late Raising of Issues

Should I consider a section of the Code not mentioned in the original Complaint? Should I consider a new allegation raised months later?

In Moore v. Maika, I considered an allegation under a previously unmentioned section of the Code. I noted that the new allegation was reasonably related to the content of the original complaint.
In this case, the allegation under section B.3(iii) was first raised in August 2018. It reasonably relates to the content of the complaint but was identified two years after the process commenced.
The allegation under section D.5(c) was raised in March 2018. It does not relate to the content of the complaint.
While I am considering both these sections of the Code, I recommend to Council that the Code be amended to provide finality and certainty and to be fair to the parties.
Specifically, I recommend that the amendments to the Code provide that:

(a) No complaint may be made, and no new allegation in an existing complaint may be advanced, more than three months after the facts giving rise to the complaint/allegation occurred or first came to the Complainant’s attention.

(b) No new allegation in an existing complaint may be advanced unless the Integrity Commissioner concludes that doing so would cause no prejudice to the Respondent.

C. Truth

Does the Code of Conduct empower the Integrity Commissioner to police the truth of political speech?

This case is not like other cases involving speech.
The case is not about disclosing confidential information. This case is not about comments that might hurt a person’s reputation. This case does not involve hate speech.
The case involves factual accuracy.
Councillor Maika is alleged to have made an untrue comment.
In a case like this, does the Code empower the Integrity Commissioner to police truth in political speech? I find that it does not.
By the time I inherited this complaint, the previous Integrity Commissioner had invested a great deal of time and effort based on the assumption that he had jurisdiction over truth in speech. As a matter of fairness, I allowed the parties to address fully the questions my predecessor was pursuing (as well as additional questions) and I took all their representations into account. Having taken into account all of the facts and all the submissions, I find this is not a case that should be handled under the Code.
First, I note that the parties have been debating not just one factual issue, but a dozen. The basic issue is whether the Respondent’s comment was correct or incorrect, but the parties also made submissions on:

Whether the evidence is that there is no asbestos in the building or merely that no asbestos was found.
Whether the evidence on asbestos was known to the Respondent at the time she spoke.
Whether the evidence on asbestos was available to the Respondent at the time she spoke.
Whether the Respondent should have reviewed the evidence on asbestos before she spoke.
Just how much evidence the Respondent possessed at the time she spoke.
How much evidence the Respondent should have possessed before speaking.
Whether the Respondent believed there might be asbestos.
Whether the Respondent honestly believed there might be asbestos.
Whether the Respondent’s belief was reasonable or reckless.
How much the public knew about asbestos in the building.
Whether the Respondent accurately represented how much the public knew about asbestos in the building.

Those are just the questions on the basis for the comment. The parties have also debated the meaning and understanding of the twelve words spoken by the Respondent:

Were the Respondent’s words meant literally?
Were the Respondent’s words taken literally?
Was “full of” intended as a figure of speech?
Was “full of” interpreted as a figure of speech?
Did “I know” mean the Respondent knew it, or just believed it?
Did the public think “I know” meant the Respondent knew it, or just believed it?
What was meant by “as does the public”?
What was “as does the public” interpreted to mean?

With great respect to the previous Commissioner, who began to undertake these inquiries, and to the parties, who argued the points thoroughly, I find that these are not questions suited to the Code of Conduct process. This is especially true when the answers depend on technical knowledge (such as the content of engineering reports) outside the expertise of an Integrity Commissioner.
As this case demonstrates, determination of truth or falsity is a complex endeavour that depends on how language is both meant and understood. The Supreme Court of Canada has cautioned us that what is true for one person might be false for another:

One problem lies in determining the meaning which is to be judged to be true or false. A given expression may offer many meanings, some which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is not a datum so much as an interactive process, depending on the listener as well as the speaker. Different people may draw from the same statement different meanings at different times. The guarantee of freedom of expression seeks to protect not only the meaning intended to be communicated by the publisher but also the meaning or meanings understood by the reader: Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, at p. 767, and Irwin Toy, supra, at p. 976. The result is that a statement that is true on one level or for one person may be false on another level for a different person.¹³

The Complainant’s position is that the Respondent made the statement knowing it to be contrary to the evidence. In other words, he says she lied.
The Supreme Court of Canada has stated that the analysis is not so simple.
The Court cited as examples the activist who claims “the rainforest of British Columbia is being destroyed” or a doctor who exaggerates a meningitis outbreak as “an epidemic.”¹⁴ Are these fake news? Accurate as figures of speech? Lies? Harmless exaggerations? Deliberately dramatic statements intended to compel action?
Whether an inaccuracy is a lie or an exercise of artistic licence depends on many factors. A case in point is the Complainant’s letter to the editor, which narrates a tale of concern for a family member that was dispelled once the CAO furnished the engineering reports and confirmed the removal of tiles. The inaccuracies in this narrative (the author was aware of the reports and the asbestos removal before Councillor Maika spoke) are obviously a literary device and not meant literally.
Even if we accept for a moment the Complainant’s assertion that Councillor Maika lied, it is neither obvious nor straightforward that lying contravenes the Code. The Supreme Court of Canada provides several reasons:

The first difficulty results from the premise that deliberate lies can never have value. Exaggeration – even clear falsification – may arguably serve useful social purposes linked to the values underlying freedom of expression. A person fighting cruelty against animals may knowingly cite false statistics in pursuit of his or her beliefs and with the purpose of communicating a more fundamental message, e.g., ‘cruelty to animals is increasing and must be stopped’. A doctor, in order to persuade people to be inoculated against a burgeoning epidemic, may exaggerate the number or geographical location of persons potentially infected with the virus. An artist, for artistic purposes, may make a statement that a particular society considers both an assertion of fact and a manifestly deliberate lie; consider the case of Salman Rushdie's Satanic Verses, viewed by many Muslim societies as perpetrating deliberate lies against the Prophet.

All of this expression arguably has intrinsic value in fostering political participation and individual self-fulfilment. To accept the proposition that deliberate lies can never fall under s. 2 (b) would be to exclude statements such as the examples above from the possibility of constitutional protection. I cannot accept that such was the intention of the framers of the Constitution.¹⁵

While the Court was referring specifically to the Charter of Rights the broader implications are relevant to a Code of Conduct. The Supreme Court’s examples should be sufficient to illustrate why policing the truth of political speech ought to lie outside the scope of Integrity Commissioners and Codes of Conduct.
As I have found, the asbestos comment was part of political speech during a political debate on the issue of funding the Railway Station. As the passage below indicates, even the Complainant recognizes the comment as political speech. The Complainant’s concern is not an inaccuracy per se but an inaccuracy intended to advance Councillor Maika’s political agenda. I note that, after making this point, the Complainant pivots to present his own side of the political debate:

I take exception when elected officials utter inaccurate and misleading statements or figures to support their own particular agendas. This is especially so when a huge money-losing facility that enables a relatively small number of residents to use an ice rink is exempted from the same kind of micro-analysis.

When an issue arises in the context of political debate, political debate offers its own remedies to address inaccurate or misleading comments. Two examples were the remedies employed here. Councillor Bromwich responded through political debate when he immediately addressed Councillor Maika’s comment.¹⁶ The Complainant responded through political debate by writing a letter to the editor that ultimately was many times more prominent than the original comment.
In my view, utilizing the tools of political debate to respond to inaccuracies and exaggerations in political debate is far more appropriate than having Integrity Commissioners police the truth of political speech.
Further, I am reluctant, as an Integrity Commissioner, to impose preconditions on what a Council Member must do before engaging in political speech. The previous Integrity Commissioner raised an issue of whether Councillor Maika exercised due diligence before she spoke up. As a matter of fairness I gave the parties full opportunity to address this issue and I did not curtail or limit their submissions. Having considered the representations and the information before me, I find it is inappropriate and, frankly, dangerous to rule that only suitably informed politicians have earned the right to speak on a matter.
In defamation cases, which this is not, good faith and prior checking (to ensure allegations are accurate) are elements of a defence. It is inappropriate, however, to convert prior checking (an element of a defamation defence) into a precondition that must be satisfied before a Council Member may engage in political speech. The Respondent’s legal counsel submits that it is unrealistic for a Councillor to conduct research before every utterance at a meeting. While I agree with this practical observation, in my view the issue is more fundamental. An Integrity Commissioner has no business determining whether a Council Member has satisfactorily prepared and so earned the right to exercise political speech.¹⁷
Other Integrity Commissioners have held that they have no jurisdiction over political speech as long as it complies with the Code. As former Brampton Integrity Commissioner Donald Cameron noted in 2012:

I cannot and will not be a referee of free speech in a political arena provided it stays within the bounds of s. 2.1 [now Rules Nos. 14 and 15] of the Code.¹⁸

Subsequently, Mr. Randy Pepper, the delegate of Integrity Commissioner Cameron, expanded on the same principle in Investigation Report No. BIC-33-1112:¹⁹

Freedom of expression is a fundamental right in Canada so the Code must be interpreted in a manner consistent with this fundamental right. Based on the law set out below, I cannot find that the Code should be interpreted to appoint the Integrity Commissioner as a speech referee in the political arena.

As the Supreme Court of Canada noted in Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139:

Freedom of expression, like freedom of religion, serves to anchor the very essence of our democratic political and societal structure. As expressed by Jackson J., in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), at p. 642, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein”. Robert J. Sharpe explains the futility of basing this axiom merely upon some yearning for ultimate truth, in “Commercial Expression and the Charter” (1987), 37U.T.L.J. 229, at p. 236:

The essence of the market-place of ideas argument is that control and regulation of expression is intolerable because we can trust no government to know the truth. Those who purport to legislate the truth invariably turn out to be tyrants. The market-place of ideas argument prescribes an open process precisely because we cannot agree on what is the truth.

Hence the justification for the widest freedom of political speech stems not only from some abstract search for truth, but also from the tangible goal of preserving democracy.

In view of the above law, I find that the Integrity Commissioner has a very limited role in relation to the “freewheeling debate on matters of public interest” which is not engaged by Councillor Palleschi’s reported comments. I have therefore concluded that the allegations of the BSO/Mr. Todd against Councillor Palleschi do not require further investigation and the complaint should be dismissed.

I agree with Integrity Commissioner Cameron’s and Delegate Pepper’s statements concerning the role of the Integrity Commissioner in relation to political speech and adopt them for purposes of this complaint.

D. Vision and Purpose

Is it possible to contravene the “Vision” or “Purpose” of the Code? Do these provisions create substantive obligations that Council members must follow?

No.
I adopt the findings in Moore v. Maika and apply them here.
I find that the Vision and Purpose of the Code cannot be contravened and cannot give rise to a complaint. They provide interpretive direction only.

E. Section B.3(ii)

Did the Respondent breach section B.3(ii) by abusing power?

No.
The relevant provision of the Code reads as follows:

B. Standards of Conduct:

Members of Council shall refrain from behaviour that could constitute an act or [sic] disorder or misbehaviour. Specially [sic], Council officials shall refrain from conduct that:

(ii) Is an abuse of power or otherwise amounts to discrimination, intimidation, harassment, verbal abuse, or the adverse treatment of others.

As I found in Moore v. Maika, “abuse of power” is a legal term with a specific meaning. It involves intentionally injuring a member of the public through deliberate and unlawful conduct in the exercise of public functions.²⁰ It occurs when a public official engages in deliberate and unlawful conduct in her capacity as a public officer while knowing that the conduct is both unlawful and likely to cause harm.²¹
Abuse of power entails more than merely exceeding the limits of a statute and more than making a decision that has an adverse impact on someone. The abuse must include some element of bad faith or dishonesty.²²
The Complainant argues that the Respondent exhibited bad faith and dishonesty. Even if that were true, abuse of power is predicated on the exercise of a power (that is, an official duty or function). I do not find that Councillor Maika exercised a power. She made a 12-word statement, just as anyone could have spoken, and received a small amount of press coverage, just as anyone could have done (as evidenced by the Complainant’s generation of a rebuttal that filled 19.5 times as much space in the newspaper).
The Complainant argues that the connection to the Respondent’s official role was the use of “her authoritative, insider status to sow seeds of concern about potential health hazards to users of the premises.” I find no evidence that her comment was, or was perceived as, the exercise of perceived “insider” status or credibility.
I also adopt my early comments about the suitability of the Integrity Commissioner / Code of Conduct process for the policing of truth in political speech. I find no contravention of section B.3(ii)

F. Section B.3(iii)

Did the Respondent breach section B.3(iii) by a prejudicing the provision of a service or services to the community?

No.
The relevant provision states that: “Council officials shall refrain from conduct that … (iii) Prejudices the provision of a service or services to the community.”
Assuming for purposes of this report that the functions provided at the Railway Station were “services to the community,” I find no evidence that the provision of them was prejudiced by the Respondent’s conduct.
The submissions about prejudice are theoretical and speculative. The exception is the employee’s letter, which details the need to reassure people, that winter, about the lack of an asbestos hazard. I find that this is not evidence of prejudice, among several reasons because the Complainant’s many letters demonstrate the ease of communicating that the asbestos has been removed.
Further, section B.3(ii) deals with prejudice to the provision of services. I find no evidence of any effects that hampered the providers or the providing of services at the Railway Station.
I also adopt my early comments about the suitability of the Integrity Commissioner / Code of Conduct process for the policing of truth in political speech. I find no contravention of section B.3(iii)

G. Section C.5(c)

Did the Respondent breach section C.5(c) by accepting the services of an individual who provides services to the municipality when the individual is being paid by the municipality?

Section C.5 provides, in part, as follows:

Without limiting the generality of the foregoing, members of council shall not: … c) solicit, demand or accept the services of any corporation, employee, or individual providing services to the municipality at a time in which said person or corporation is being paid by the municipality

The Complainant argues that this section was breached when the Respondent accepted representation in this complaint (during the tenure of my predecessor) from a member of the law firm that represents the Township.
I share the Complainant’s concern about the prospect that this might have occurred, including a communication from a Township lawyer to my predecessor that appears to be on behalf of the Respondent. This has not recurred since my appointment and it has not affected the determination of this complaint.
At the same time, at this point there is insufficient evidence to establish a breach of section C.5(c). Prior to my appointment there was, it seemed, a lack of awareness of the importance of the Integrity Commissioner’s independence and the municipality’s neutrality. In that context it is not immediately clear whether those involved understood that legal services were being provided to the Respondent personally as opposed to being provided to the municipality.
The Complainant has the right to submit a new complaint on this issue should additional relevant information be acquired.

OTHER ISSUES

The parties have also addressed a host of additional issues, not directly related to whether Councillor Maika’s comment contravened the Code. I have considered all these issues and all of the parties’ submissions on them.
These issues include but are not limited to:

The independence and perceived independence from the Township of the previous Integrity Commissioner, having regard to factors such as:

o The Township’s then-CAO²³ acting as intermediary in communications between the Integrity Commissioner and each of the parties.²⁴

o Control exercised by the Township’s then-CAO over the previous Commissioner’s access to the parties, including over interviews with the parties.

o The Township’s role in determining and communicating a temporary suspension (labelled a “medical abeyance”) for health reasons related to one of the parties.

The role of the Township’s solicitor in proceedings before the previous Commissioner, including the following:

o Attempting, in the context of a proceeding before another tribunal to which this Complainant was not party, to negotiate a settlement of this complaint.²⁵

o Writing to the previous Integrity Commissioner in the capacity of representative of the Respondent.

o Sending correspondence to the previous Commissioner urging him “to review the bona fides” of this complaint and one other, on the ground that this complaint and one other were “frivolous, vexatious and politically motivated.”

The fact that the Township, through its solicitor, sent the Complainant a notice forbidding him from communicating directly with the Township staff.
The medical abeyance, including the grounds, timing, duration, legitimacy and sufficiency of disclosure to the Complainant.
Whether the previous Integrity Commissioner should have recused himself because of a reasonable apprehension of bias or lack of independence.

The Complainant also argued that the circumstances surrounding the medical abeyance disclosed a breach of the Code of Conduct by the Respondent, in that she failed to act honestly and in a way that enhances public confidence in local government.
A great deal of attention has been paid to these issues. The issues appear to be reasonable. They were raised genuinely and in good faith. I have been considering them fairly.
Nonetheless, I am proceeding to issue a report solely on the substance of the complaint, without rendering an opinion on the other issues. In doing so, I note the following:
First, whatever reasonable concerns may once have existed about my predecessor’s perceived independence from the Township, I have operated completely independently of the Township and of the parties.
Second, any early confusion, on the part of all actors, about the role of the Integrity Commissioner and the essential independence of the office should by now have been dispelled, including by my interim report Re Madawaska Valley (Council Member), 2018 ONMIC 10.
Third, in my opinion, some of the early confusion over reporting and procedure may have arisen because the current Code of Conduct says nothing about how Integrity Commissioner investigations should be commenced, conducted and reported. The Code amendments that I will subsequently propose should prevent similar confusion from arising in future.
Fourth, I have been open, certain and clear in explaining the fair and independent process that must be followed, and that I have consistently followed. I will continue to do so.
Fifth, I am following a different process than did my predecessor. I am communicating directly with the parties. I am reporting directly to Council. I am adhering strictly to the Municipal Act requirement of independence.
Sixth, as applied to the substance of this complaint and my handling of it, I have placed absolutely no weight on communications from the Township’s solicitor to the previous Commissioner.
Seventh, the “medical abeyance” did not continue after I was appointed Integrity Commissioner. Issues such as the legitimacy of the suspension and the sufficiency of disclosure to the Complainant are moot. Further, there are no grounds to consider whether the Respondent’s involvement in the medical abeyance constituted a breach of the Code.
Eighth, regardless of any concerns relating to the previous Commissioner’s process, since my appointment the parties have been given – and both have utilized – repeated opportunities to comment fully and completely and to address every conceivable issue related to this case. Each party has been treated scrupulously fairly. There is no suggestion to the contrary.
Ninth, the issue of whether the previous Commissioner should have recused himself became moot when I replaced him.
Tenth, none of the procedural issues involving the previous Integrity Commissioner is relevant to, or has affected, the determination of the substance of the complaint. Going forward, I will address these other issues to the extent required.
There is, therefore, no reason to let other issues to delay the issuance of this report on the substance of the complaint about Councillor Maika’s words. Having been completed, this report will be delivered as soon as possible after the polls close next Monday.

RECOMMENDATIONS

I recommend as follows:
That the Code of Conduct be amended to provide that:

(b) No new allegation in an existing complaint may be advanced unless the Integrity Commissioner concludes that doing so would cause no prejudice to the Respondent.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Township of Madawaska Valley

October 19, 2018

APPENDIX 1

Relevant Provisions of Code of Conduct, By‑Law Number 2014‑138

COUNCIL TEAM VISION:

The Township of Madawaska Valley serves the community through the provision of effective, responsible and visionary leadership.

The Council shall:

focus on achieving a common vision and goals for the municipality;
make sound, effective and timely decisions based upon objective data and open debate of issues;
develop and maintain a climate where integrity, mutual support, trust and professionalism are valued;
utilize the diverse knowledge, expertise and talents of all council members to optimal advantage;
conduct its activities in an orderly, professional and businesslike manner;
benefit from strong and effective leadership from the Mayor and individual council members;
value congeniality, teamwork and a sense of humour;
enjoy the benefits of effective communication and open sharing of information among its members;
balance effective and diverse values, aspirations and competing interests within the community; and
work effectively in partnership with a capable executive and staff to provide excellent service to residents and ratepayers.

A. PURPOSE OF THE CODE OF CONDUCT:

The Code of Conduct sets minimum standards for the behaviour of Council members when carrying out their functions on behalf of the municipality. It has been developed to assist council members to:

Understand the standards of conduct that are expected of them and the law that applies in relation to these standards;
Fulfil their duty to act honestly and exercise reasonable care and diligence;
Act in a way that enhances public confidence in local government; and
Identify and resolve situations which might involve a conflict of interest or a potential misuse of position and authority.

B. STANDARDS OF CONDUCT:

Members of Council shall at all times seek to advance the common good of the community that they serve.
Members of Council shall truly, faithfully and impartially exercise the office to which they have been elected or appointed, to the best of their knowledge and ability.
Members of Council shall refrain from behaviour that could constitute an act or disorder or misbehaviour. Specially, Council officials shall refrain from conduct that:

(i) Contravenes Federal or Provincial statutes or legislation, the Municipal Act, Municipal by-laws, associated regulations, and the Municipality’s Code of Conduct.

(ii) Is an abuse of power or otherwise amounts to discrimination, intimidation, harassment, verbal abuse, or the adverse treatment of others.

(iii) Prejudices the provision of a service or services to the community.

C. CONDUCT TO BE OBSERVED:

Engaging in Incompatible Activity:

Members of council shall not engage in any activity, financial or otherwise, which is incompatible with the ethical discharge of their official duties in the public interest.

Without limiting the generality of the foregoing, members of council shall not:

a) use any influence of office for any purpose other than official duties;

b) act as an agent before council or any committee, board or commission of council;

c) solicit, demand or accept the services of any corporation, employee, or individual providing services to the municipality at a time in which said person or corporation is being paid by the municipality;

d) use any information gained in the execution of office that is not available to the general public for any purpose other than for official duties;

e) place themselves in a position of obligation to any person or organization which might benefit from special consideration or may seek preferential treatment;

f) give preferential treatment to any person or organization in which a member or members of council have a financial interest;

g) influence any administrative or council decision or decision-making process involving or affecting any person or organization in which a member or members of council have a financial interest; and

h) use corporate materials, equipment, facilities or employees for personal gain or for any private purpose.

APPENDIX 2

Relevant Provisions of Procedural By‑Law, By‑Law Number 2013‑12

Duties of the Presiding Officer:

THAT it shall be the duly of the Mayor or other presiding officer:

To restrain the Members within the rules of order when engaged in debate.
To enforce on all occasions the observance of order and decorum among the Members.
To call by name any Member persisting in breach of the rules of order of the Council or Board/Committee, thereby ordering the Member to leave the Meeting.
To expel from a Meeting anyone who engages in improper conduct.
To inform the Council or Board/Committee, when necessary or when referred to the purpose, on a point of order or usage.
To order any individual or group in attendance at the Meeting to cease and desist any behaviour which disrupts the order and decorum of the Meeting and to order the individual or group to leave the Meeting where such behavior persists.
To adjourn the Meeting without question in the case of any disorder arising at the Meeting.
Conduct of Members of Council or Board and Committees:

THAT no member shall:

Use indecent, offensive or insulting words, profanity or unparliamentary language in or against the Council or against any Member, staff, guest or individual;
Disturb another or the Council, staff, Member, guest or individual by any disorderly conduct disconcerting to the speaker or assembly;
Resist the rules contained in the Procedural By-Law of Council or disobey the decision of the Presiding Officer or of Council or the Board/Committee on questions of order or practice or upon the interpretation of the rules of Council;
Be permitted to retake their seat after being ordered to leave a Meeting, having committed a breach of any rule of the Council and without making an apology to Council and having the consent of Council or the Board/Committee expressed by a majority vote of the other Members present, determined without debate;

Footnotes

On June 6, 1899 (S.C. 1899, c. 81), it amalgamated with Canada Atlantic Railway Company which became controlled by The Grand Trunk Railway Co. in 1905, and then was amalgamated with it by Act of Parliament in 1914 (S.C. 1914, c. 89). Following bankruptcy, Grand Trunk became part of the Canadian National Railways in 1923. In 1960, the Crown corporation became known as Canadian National/Canadien National.
Online, https://www.mvcultureandheritage.ca/RS-documents/MVT-CultTourismTrain.pdf
The Respondent, who was not yet on Council at the time, did not attend either meeting.
For ease of reading I have replaced the URLs in the original letter with shortened ones.
The February 17, 2016, article started on the front page and then continued on page 2 and page 3. The Respondent’s asbestos comment was printed on page 3.
The passage filled eight column lines; the asbestos sentence itself, only two. The February 24, 2016, letter to the editor, including a prominent, bold, double headline, took up 154 column lines.
As issue is one comment.
“Clean bill of health” is the Complainant’s description, not the Respondent’s or the Coordinator’s.
Most of the former employee’s letter dealt with financial issues surrounding the Railway Station and the surrounding political dispute, and offered characterizations of the Respondent’s motives. The Respondent’s lawyer argued that the letter should not be considered. I have chosen to consider the letter as evidence related to impact on services.
At issue is just one comment.
The employee’s letter was written more than 19 months later, on October 1, 2017. I find that if the effect had continued beyond winter 2016 then the letter surely would have said so.
In accepting for purposes of this report the Complainant’s statements about Councillor Maika’s scrutiny of Railway Station operations, I express no opinion on the underlying political debate. As I have indicated, the merits of the debate are not relevant to the Code of Conduct determination. Nonetheless, to the extent that the excerpts reflect the Complainant’s side of the political debate, I will note that the Respondent also presented and defended her side of the issue. For example: “Ms Maika believes that the divisions among ratepayers are significant, and in many ways crystallized over issues concerning the railway station that houses the Visitor’s Centre. Longstanding residents of the area, many of whom are poor, support some, but certainly not all of the activities that run out of that facility. They didn’t think that spending money to winterize it was prudent. Residents in the Municipality struggled with a 32% municipal tax increase during the previous council, almost all of whom were voted out in the election in the fall of 2014 … There is no question that the railway station has been a flashpoint for divisions within the taxpayers, largely on the basis of socioeconomic status and the length of time in the community.”
R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731 at 756.
Ibid., at 772.
Ibid., at 754-5.
“Let’s not muddy the waters any muddier than what they are now. Let’s stick to this particular situation without clouding it with innuendoes or accusations.”
A corollary is that a Council Member should not be required, as part of an Integrity Commissioner’s investigation, to explain or to justify the extent of factual preparation prior to the exercise of political speech.
City of Brampton, Report No. BIC-030-192 (December 4, 2012), Integrity Commissioner Donald Cameron, at p. 3.
City of Brampton, Report No. BIC-32-1112 (December 18, 2012), Randy Pepper, Delegate of the Integrity Commissioner, at pp. 2-3.
Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69 at para. 30.
Ibid., at para. 23.
David Stratas, “Damages as a remedy against administrative authorities: an area needing clarification” (2009), at 10.
For clarity, I stress that this was not the current CAO but was the predecessor of the predecessor (not counting interims) of the current CAO.
The then-CAO emailed, October 14, 2016, “all correspondence is to flow through me and not to go to Mr. Rosien unless requested.” Later that day he emailed, “All complaints and related information are to flow through my office for the record as the Clerk of the Corporation.”
The Complainant was representing another individual in another proceeding, before another tribunal. On June 12, 2017, the Township’s solicitor wrote to the Complainant, in part, as follows: “We will also pay an additional amount of $1500 payable as wages, less statutory deductions, in order that the settlement include ALL outstanding matters involving the Township and a release of all claims, including but not limited to … any Integrity Commissioner complaint filed by you or [the other individual] to date.”

Maika (Re), 2018 ONMIC 11

Case Summary

TABLE OF CONTENTS

THE COMPLAINT

SUMMARY

BACKGROUND

POSITIONS OF THE PARTIES

Complainant’s Position

Respondent’s Position

Complainant’s Position in Reply

PROCESS FOLLOWED

FINDINGS OF FACT

ISSUES RAISED IN THE INVESTIGATION

A. Jurisdiction

B. Expansion of Grounds and Late Raising of Issues

C. Truth

D. Vision and Purpose

E. Section B.3(ii)

F. Section B.3(iii)

G. Section C.5(c)

OTHER ISSUES

RECOMMENDATIONS

APPENDIX 1

APPENDIX 2

Footnotes