TOWNSHIP OF MADAWASKA VALLEY INTEGRITY COMMISSIONER, GUY GIORNO
Citation: Peplinski (Re), 2018 ONMIC 12
Date: October 23, 2018
REPORT ON COMPLAINT
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 6.3)
TABLE OF CONTENTS
THE COMPLAINT. 3 SUMMARY. 3 BACKGROUND AND CHRONOLOGY. 4 FINDINGS OF FACT. 10 PROCESS FOLLOWED.. 12 ANALYSIS AND FINDINGS.. 12 A. Jurisdiction. 13 B. Discrimination based on Place of Origin. 13 C. Harassment 16 D. Section C.5(c) 17 E. Reprisal 18 RECOMMENDATION.. 20 APPENDIX.. 21 Relevant Provisions of Code of Conduct, By‑Law Number 2014‑138. 21
THE COMPLAINT
1The Complainant alleges that Councillor Ernie Peplinski (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 comments made during a committee meeting.
2This complaint has been sitting in abeyance since 2016. The proceeding was suspended in July 2016 and remained suspended following my appointment in June 2017. During the suspension I did not consider or make any determination concerning the substantive allegations in the complaint.
3On August 9, 2018, in an interim report to Council, Re Madawaska Valley (Council Member), 2018 ONMIC 10, I ended the suspension and confirmed that the proceeding would resume.
4The original Code of Conduct1 complaint simply referred to section D (Interpersonal Behaviour of Members of Council). In August 2008 the Complainant confirmed that the specific allegations were discrimination and harassment, which are covered by sections D.2 and D.3 of the Code of Conduct.
5The Complainant further alleges that by accepting personal representation from the Township’s lawyer the Respondent breached section C.5(c) of the Code of Conduct. The Complainant also alleges a reprisal – and says it is covered under Code of Conduct section B.3(ii).
6Under 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 circumstances surrounding the complaint which include information about the Complainant.2
SUMMARY
7I accept the submission of the Complainant’s representative that I should decide the complaint on the basis of the Consultant’s Report. I adopt the Consultant’s factual findings for purposes of this report.
8I am reaching my own conclusions about how to interpret and apply the Code of Conduct.
9I accept the argument of the Complainant’s representative that in this case Council decided to confer on the Integrity Commissioner jurisdiction over what happened at a committee meeting.
10I do not find a contravention of the Code of Conduct by the Respondent.
BACKGROUND AND CHRONOLOGY
11In this Code of Conduct proceeding, the Complainant was represented by a family member. The Respondent was represented by his lawyer, Mr. David Little. When I refer in this report to a position taken by a party, I include a position expressed by the party’s representative or lawyer.
12The January 12, 2016, meeting of the Recreation, Heritage and Culture Committee was attended by six committee members,3 five Township staff members, one news reporter and one member of the public. The Respondent was discussing an initiative known as “There is Art in Your Woodpile”4 and in that context made comments that the Complainant found offensive and hurtful.
13The Complainant asked the Respondent for an apology and, not receiving one, wrote a letter of complaint to the Township. Then the Township engaged an external Consultant to investigate. Subsequently the Complainant filed both a Code of Conduct complaint and a Human Rights Code application.
14Because this complaint followed a different sequence of events than other Code of Conduct complaints, I am providing a chronology:
March 2, 2015 Code of Conduct takes effect.
Jan. 12, 2016 Meeting of Recreation, Heritage and Culture Committee.
Jan. 17, 2016 Complainant writes to Respondent, alleging violation of Human Resources Policy A-04 and Human Rights Code. Letter does not mention Code of Conduct.
Jan. 20, 2016 News story on committee meeting appears in The Valley Gazette.
Feb. 16, 2016 Complaint letter filed with CAO. Letter cites Human Resources Policy A‑04, Human Rights Code and Code of Conduct.
March 10, 2016 Alleged reprisal occurs during “Public Question Period” of Finance and Administration Committee meeting.5
March 14, 2016 Margaret Michaels, Human Resources Consultant, conducts first interview.
March 16, 2016 Subject matter of alleged reprisal appears in The Valley Gazette news story.
March 18, 2016 Complainant writes to Mayor concerning alleged reprisal.
March 20, 2016 Respondent submits written response to allegations in January 17 complaint letter.
March 30, 2016 Respondent submits further written response to allegations in January 17 complaint letter.
March 31, 2016 Consultant conducts final interview.
April 11, 2016 Circumstances surrounding alleged reprisal (March 10) are raised during “Public Question Period” of Finance and Administration Committee meeting. Mayor replies that a member of the public is free to ask questions and the information discussed was not confidential.
April 25, 2016 Consultant issues report. Concludes that harassment and discrimination occurred, but reprisal did not occur.
April 26, 2016 Complainant accepts Special Event of the Year Award from the Ottawa Valley Tourism Association on behalf of Township. Award was for the event “There Is Art In Your Woodpile.”
May 13, 2016 Consultant’s Report is given to Complainant.
May 16, 2016 Council considers Consultant’s Report in closed session.
May 16 2016 Announcement in open session that Council, having reviewed the Consultant’s Report under Human Resources Policy A-04, has not determined whether breach of the Code of Conduct has occurred and therefore will appoint an Integrity Commissioner.
May 16, 2016 Staff directed to being process of appointing Integrity Commissioner.
June 6, 2016 Appointment of Mr. Jack Rosien (First Integrity Commissioner) takes effect for term ending May 31, 2017.6
June 27, 2016 First Integrity Commissioner asks CAO to schedule interviews with parties.
June 28, 2016 CAO attempts to schedule interview between Complainant and First Integrity Commissioner.
June 29, 2016 Complainant replies to Township’s lawyer (not CAO) asking why interview with First Integrity Commissioner is necessary. Argues Township should accept Consultant’s findings and simply ask Integrity Commissioner to recommend sanction based on those findings. Also argues Consultant is more qualified than an Integrity Commissioner to address the complaint.
July 4, 2016 First Integrity Commissioner informs CAO that under Municipal Act and Code of Conduct a request for investigation (Code of Conduct complaint) form must be submitted by Complainant or Council before he can commence investigation.
July 5, 2016 Complainant initiates Human Rights Code proceeding before Human Rights Tribunal of Ontario (HRTO). HRTO application served on Township and Respondent.
July 6, 2016 CAO asks Complainant to submit Code of Conduct complaint form.
July 7, 2016 Complainant replies to CAO and reiterates that Council should just act on Consultant’s Report that upheld Complainant’s position. Points out that Council already possesses power to make referral to Integrity Commissioner and Council should do so.
July 8, 2016 Township’s lawyer writes letter informing Complainant’s representative that Integrity Commissioner proceeding is being held in abeyance pending HRTO proceeding.
July 13, 2016 Complainant delivers “request for referral” (Code of Conduct complaint) to First Integrity Commissioner.7
July 15, 2016 First Integrity Commissioner informs CAO that he will suspend Code of Conduct proceeding pending HRTO proceeding.
July 18, 2016 First Integrity Commissioner suspends Code of Conduct proceeding pending outcome of HRTO proceeding. He asks CAO to notify the parties.
July 19, 2016 Township’s lawyer again writes to Complainant to confirm that the Township has deferred the Integrity Commissioner process, and mentions that First Integrity Commissioner has “has also noted a suspension of proceedings.”
July 22, 2016 Complainant writes to First Integrity Commissioner and objects that Township cannot suspend Code of Conduct proceeding; only Integrity Commissioner may do so.
July 22, 2016 First Integrity Commissioner replies that the Code of Conduct proceeding was suspended because of HRTO proceeding.
July 27, 2016 Complainant writes to First Integrity Commissioner and claims he lacks independence: makes formal objection to him acting as Integrity Commissioner on this complaint.
July 29, 2016 Township’s lawyer replies to July 27 correspondence to First Integrity Commissioner: “… we regard your written statement to the IC to be potentially defamatory, and reserve all rights in this regard.” Lawyer also states “decision to hold the IC’s proceedings in abeyance stands …”
Aug. 2, 2016 Complainant asks whether Township’s lawyer now also represents First Integrity Commissioner.
Aug. 16, 2016 Respondent and Township seek deferral of HRTO proceeding pending outcome of Integrity Commissioner process. Complainant opposes deferral
April 6, 2017 Township notifies First Integrity Commissioner that his term will not be renewed.
April 25, 2017 Complainant tells HRTO it should not grant deferral; among reasons is that Complainant’s Code of Conduct complaint (request) had been withdrawn “because of perceived lack of independence” of Integrity Commissioner.
May 17, 2017 HRTO denies request for deferral and notes that Complainant’s Code of Conduct complaint has been withdrawn.
June 6, 2017 Appointment of Second Integrity Commissioner takes effect.
July 14, 2017 Complainant informs Second Integrity Commissioner that Complainant is content to have Second Integrity Commissioner investigate complaint as seen fit.
July 24, 2017 Complainant informs Second Integrity Commissioner that Code of Conduct proceeding should not move forward at this time.
July 27, 2017 Second Integrity Commissioner confirms Code of Conduct proceeding remains suspended.
Sept. 19, 2017 Complainant, Respondent and Township settle HRTO proceeding. Terms of settlement include apology, payment of legal expenses, and confidentiality. Settlement releases “respondent”8 from any applications and claims including Integrity Commissioner application.
Sept. 20, 2017 Complainant informs Second Integrity Commissioner that the HRTO proceeding is settled, a public apology is one settlement term, and the other terms are confidential. Writes, “you are invited to proceed as you see fit.”
Oct. 23, 2017 Township’s lawyer sends copy of HRTO settlement to Second Integrity Commissioner. States that the settlement serves to discontinue any Code of Conduct complaint and to bar any future Code of Conduct complaint based on the events.
Nov. 24, 2017 Complainant disagrees that effect of HRTO settlement is to discontinue Code of Conduct complaint.
Dec. 21, 2017 Second Integrity Commissioner is informed by Complainant of formal allegation to HRTO that Township breached HRTO settlement by providing copy to Second Integrity Commissioner.
March 11, 2018 Complainant explains that to extent the Code of Conduct complaint “had been ‘withdrawn,’ it had only been withdrawn from [First Integrity Commissioner].” In the alternative, Complainant argues that Complainant had no right to withdraw complaint unilaterally without Integrity Commissioner approval.
July 2, 2018 Complainant informs Second Integrity Commissioner of intention to give HRTO the notes, prepared by Complainant, of Complainant’s November 2017 interview with Integrity Commissioner.
July 6, 2018 By email, Second Integrity Commissioner take issue with aspects of accuracy and completeness of Complainant’s notes. Also states that disclosure of notes is likely to interfere with his handling of Code of Conduct complaint.
July 27, 2018 Complainant tells Second Integrity Commissioner that HRTO has been given the interview notes and Integrity Commissioner’s July 6 email.
August 1, 2018 Complainant confirms position that Code of Conduct proceeding should not be suspended.
August 9, 2018 Absent agreement of parties that Code of Conduct proceeding should remain suspended, Second Integrity Commissioner resumes it.
August 14, 2018 Second Integrity Commissioner invites parties to comment on certain issues related to interpretation of Code and Integrity Commissioner’s jurisdiction in this case.
August 23, 2018 Complainant for first time particularizes the specific Code of Conduct provisions alleged to have been breached. Also argues that the Consultant’s Report should be binding on the Integrity Commissioner.
August 27, 2018 Respondent submits that complaint should be dismissed without further investigation.
October 23, 2018 Second Integrity Commissioner issues report to Council.
15I note the parties’ shifting positions on (a) the need for a Code of Conduct proceeding and (b) whether the Code of Conduct proceeding or the HRTO proceeding should be suspended pending the outcome of the other.
16The typical municipal code of conduct (or code of conduct procedure) permits or requires an Integrity Commissioner to defer to another ongoing legal proceeding, or to defer to legislation or policy more suited to the subject matter of the complaint. The Township’s Code currently lacks a provision like that. I will subsequently propose one.
17In Re Madawaska Valley (Council Member), 2018 ONMIC 10, I explained why an HRTO settlement cannot remove an Integrity Commissioner’s jurisdiction over a Code of Conduct complaint. At the same time, it is relevant and important for an Integrity Commissioner to know when the parties have reached agreement on particular issues. I do not understand why the Complainant objected to me being shown the text of the HRTO settlement. If an objective is to avoid duplication and repetition, not to mention to avoid waste of public funds, then it is relevant for an Integrity Commissioner to know that an issue underlying a Code of Conduct complaint has been resolved.
FINDINGS OF FACT
18As the chronology shows, the Complainant originally was skeptical of the need for an Integrity Commissioner process. In the Complainant’s view, the Consultant had reviewed the evidence and delivered a report, and the Township should simply have acted on it. The July 13, 2016, Code of Conduct complaint (request) itself explains:
“Given the clear findings of the independent investigator … I replied [to the CAO] by questioning why it was necessary to refer the matter to a commissioner, other than, perhaps, to seek a recommendation as to sanctions.”9
19When the suspension was lifted and this proceeding resumed a few weeks ago, the Complainant’s representative took virtually the same position:
“The Commissioner is referred to Margaret Michaels’ Report which is attached to the original complaint to Mr. Rosien. The Complainant respectfully suggests that as the Michaels Report findings should have been binding on the Township, similarly they should be binding on its Integrity Commissioner.”
20On this point, I substantially agree with the Complainant’s representative.
21Not because I am bound to do so, but because it is reasonable, sensible, and, most important, fair to both parties,10 I have decided to rely on the factual findings in the Consultant’s Report without further investigation.
22It would be imprudent and impractical to duplicate the evidence gathering and fact finding of the Consultant. The Consultant conducted interviews while memories were fresh. The Consultant collected the facts. In the words of the Complainant, “She is very experienced in this field.”
23I therefore accept the factual findings in the Consultant’s Report and adopt them as my own for purposes of this report.
24According to the Consultant’s Report, the Respondent was questioning the quality, value and/or relevance of events to the local population. He seized upon an event called “There is Art in Your Woodpile” and complained that not enough community input was obtained. In this context he questioned whether the Complainant and another staff member could truly understand the needs of the community:
“Just one question. How does your committee decide what is important to the culture of this area? Who do you speak to? Do you have open houses? Do you ... because you are not from here [Other Staff Member], and I don’t think [Complainant], you are from this area. You know and I’m saying look around the room, you know and ... I look around and I look at the programs being offered and I see nothing ... this community here does nothing for the Irish people; there is no Irish music promoted. All around the commun ... all around the Valley it is happening. It is not happening here. You know. We have a very strong group in Wilno. Looked after by Dave Shulist who initiated it and the people are carrying on. It is very important. What is your group doing about that particular aspect of our community? Nothing, that I can see. You know. We’ve got wood piles.”11
25The Consultant’s Report indicates that Respondent made other comments on the same theme of community input and community relevance. For example:
“One of the things that I’ve received a lot of calls on and certainly I have asked questions over the last couple of months and it is related to the Art in the Woodpile. And I don’t know if this is culture – culture and economic development. And I wonder if anybody can explain exactly whose culture is this? Where is this related to? I come from a mixed heritage of Polish, Kashubian, Irish-English. Other than work with wood piles ... I’m not so sure what this represents.”
And:
“What are we achieving? Is there anybody sitting in Toronto saying ‘God, I can’t wait until that wood piling starts next year and we’re gonna come up to Barry’s Bay.’ Okay?”
And:
“[Respondent]: When something is suggested, [Other Staff Member], you should be listening. I’ve told you things about the music fund, the Ontario fund, many things and you’ve done nothing with it. This is money where you don’t have to match dollars. Okay. There is an unwillingness to listen to some of the local people, okay? Do some things for the area here. Not bringing your ideas and trying to make it work.
“[Other Staff Member]: Mr. Chair ... I agree that need to try harder to bring in more grant funding .... I do work for the people ...”
26The Respondent’s explanation, as reproduced in the Consultant’s Report, stresses the importance of community engagement in order to understand community needs:
“The lack of attention to this local culture can only be happening because of their limited knowledge of the area and hesitancy to engage those people with long roots and traditions in the Township.”
PROCESS FOLLOWED
27Both parties have had full opportunity to address the Code of Conduct issues raised by this complaint. I have received numerous submissions from them, particularly from the Complainant. I have taken into account all their representations and all of the evidence.
28In particular, both parties have had full opportunity to address whether discrimination occurred, whether harassment occurred, and whether there was a reprisal. Further, the Complainant has made extensive representations about the representation of the Respondent, for a period of time, by the Township’s lawyer.
ANALYSIS AND FINDINGS
29My reliance on the Consultant’s Report is limited to the facts. The analysis, interpretations and conclusions are necessarily my own.
30While I greatly respect her skill in collecting evidence, I give no weight to the Consultant’s interpretation of the Code of Conduct or other law. The Consultant is not an expert in codes of conduct or statutory interpretation.12 The legal analysis and legal interpretation in a Code of Conduct report – which includes applying the law13 to the facts – belong to the Integrity Commissioner alone.
31In interpreting the Code of Conduct and applying it to the facts, 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?
Alleged Contraventions
(B) Did the Respondent discriminate against the Complainant based on place of origin, contrary to section D.2 of the Code of Conduct?
(C) Did the Respondent harass the Complainant, contrary to section D.3?
(D) 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?
(E) Did the Respondent engage in a reprisal against the Complainant, and in so doing the breach section B.3(ii)?
A. Jurisdiction
Does an Integrity Commissioner have jurisdiction over a statement made during a meeting of Council or a committee?
32In Moore v. Maika, 2018 ONMIC 7, 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.
33The Respondent submits that the same conclusion ought to apply in this case. The Complainant’s representative argues that this case is different, because here the Council decided to refer the matter to the Integrity Commissioner. The Complainant’s representative cites a City of Toronto precedent that says jurisdiction will result from a Council resolution asking the Integrity Commissioner to become involved.14
34I accept the argument of the Complainant’s representative. I stand by the conclusion in Moore v. Maika, but I find that it does not apply here. The reason is that the Council expressly decided, May 16, 2016, to give the Integrity Commissioner jurisdiction.
B. Discrimination based on Place of Origin
Did the Respondent discriminate against the Complainant based on place of origin, contrary to section D.2 of the Code of Conduct?
35No.
36Accepting the factual findings in the Consultant’s Report, I have carefully reviewed the facts and applied both the Code of Conduct and established legal principles.
37Section D.2 reads as follows:
“In accordance with the Human Rights Code, members of council shall not discriminate against anyone on the basis of their race, ancestry, place of origin, colour, ethnic origin, citizenship, religious affiliation or faith, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status, or disability. ‘Age’, ‘disability’, ‘family status’, ‘record of offences’, ‘same sex partnership status’, shall be defined in Human Rights Code.”
38Did the Respondent discriminate against the Complainant based on place of origin?
39The human rights jurisprudence is clear about what “place of origin” means and what it does not mean.
40The purpose of the protection is to ensure “that people from particular places are not unjustly disadvantaged.”15 Discrimination based on place is that which engages considerations of stereotyping, social or historical disadvantage, or presumed characteristics.16
41Place of origin refers to an inherent characteristic that a person acquires or carries with him or her from birth – a matter over which an individual usually has no choice.17
42According to the evidence collected in the Consultant’s Report, the Respondent was referring to “this community,” “the area here,” “the Valley” or “the Township.” The narrow local focus stands in contrast to case law in which place of origin encompasses place of birth, country of birth and the fact of being born in a particular group of countries.18
43The jurisprudence stresses that “place of origin” and place of residence are different. Place of residence is not a prohibited ground of discrimination.19 “Place of origin” does not mean the place where one resides20 or used to reside.
44Place of origin does not mean province of residence.21 Most significantly for purposes of this case:
Place of origin does not mean the length of time someone has been living here.22
Place of origin does not mean the place from which an individual last came.23
45Based on the meaning of “place of origin” in Canadian law, the evidence gathered by the Consultant simply does not support a conclusion of discrimination based on place of origin contrary to section D.2 of the Code of Conduct.
46The Consultant’s Report quotes the Respondent as mentioning where the Complainant wasn’t from (“I don’t think you are from this area”) but contains no finding of fact about where the Complainant actually was from, that anyone knew where the Complainant was from, or that the Respondent was addressing the place the Complainant was from. It is therefore impossible to conclude that the situation engaged considerations of stereotyping, social or historical disadvantage, or presumed characteristics of the Complainant, as described in Giggey.24 To use the language of Fletcher Challenge Canada Ltd., the situation did not involve an inherent characteristic that the Complainant carries from birth – a matter over which the Complainant has no choice.25
47The Consultant’s Report summarizes the Respondent’s commentary as that “the Complainant and [another individual] were out of touch with the constituency by virtue of not being from ‘around here.’” Being out of touch is within one’s control. Being out of touch is not a presumed or inherent characteristic, a social or historical disadvantage, or a matter over which the Complainant has no choice. Saying that someone is out of touch is not discrimination.
48Instead, the evidence in the Consultant’s Report indicates that the Respondent was talking about knowledge of the local community and listening to local people:
“How does your committee decide what is important to the culture of this area? Who do you speak to? Do you have open houses? Do you ... because you are not from here [Other Staff Member], and I don’t think [Complainant], you are from this area.”
“When something is suggested, [Other Staff Member], you should be listening.”
“There is an unwillingness to listen to some of the local people, okay? Do some things for the area here. Not bringing your ideas and trying to make it work.”
49Telling two individuals that, because they are not from the local area, they should listen to the local community and speak with members of the local community, was a reasonable call for community engagement. It did not constitute discrimination on the basis of “place of origin,” as that term is used in Canadian law.
50I am aware that the Consultant thought the facts constituted discrimination based on place of origin. That was a legal conclusion, not a factual finding, and was unsupported by the case law. I give it no weight.
C. Harassment
Did the Respondent harass the Complainant, contrary to section D.3?
51No.
52Section D.3 of the Code of Conduct defines harassment as “engaging in a course of vexations comment or conduct that is known, or ought to be known, to be unwelcome.”
53I observed in Moore v. Maika that, as the definition indicates, typically harassment involves a course of conduct or a pattern. Unless the incident is severe,26 a single incident does not amount to a course of conduct and therefore is not harassment.27
54The evidence contained in the Consultant’s Report does not amount to harassment.
55In addition to the factual findings about what happened, the Consultant’s Report contains editorial opinion about “behaviours in the political arena,” about the difference between objective and subjective commentary on municipal government programs, about the role of Council Members, and about how to interpret the Code of Conduct. While I rely on the Consultant’s factual findings, I am disregarding the opinions. They are extraneous.
56The facts collected in the Consultant’s Report do not disclose a contravention of section D.3 of the Code of Conduct.
D. 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?
57I addressed the same question in Re Maika, 2018 ONMIC 11.
58Section C.5 of the Code of Conduct 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”
59The Complainant’s representative argues that this section was breached when the Respondent accepted legal representation from a member of the law firm that represents the Township.
60I find, as in Re Maika, that at this point there is not enough evidence to establish a breach of section C.5(c). The early stages of the handling of this complaint, prior to my appointment, suggest that there might have been insufficient 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.
61The Complainant has the right to submit a new complaint on this issue should additional relevant information be acquired.
E. Reprisal
Did the Respondent engage in a reprisal against the Complainant, and in so doing the breach section B.3(ii)?
62No.
63During a Council committee meeting, a relative of the Respondent questioned an employee expense. The questioning led to a newspaper story. The expense happened to be that of the Complainant. The Complainant alleges that the Respondent orchestrated the events as a reprisal for her letter of complaint.
64The Code of Conduct does not presently address reprisals against individuals who exercise their rights to complain to the Integrity Commissioner. When it is amended, this provision should be added.
65In any event, in this case, the alleged reprisal occurred several months before the Code of Conduct complaint was submitted.
66The Complainant’s representative argues that even though the Code of Conduct lacks specific language on reprisals, the situation is covered by section B.3(ii):
“B. Standards of Conduct:
“3. 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.”
67Section B.3(ii) consists of six separate elements, and each must be considered:
Was there abuse of power?
Was there discrimination?
Was there intimidation?
Was there harassment?
Was there verbal abuse?
Was there adverse treatment of others?
Abuse of power
68As I found in Re Maika, 2018 ONMIC 11, and Moore v. Maika, 2018 ONMIC 7, “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.28 It occurs when a public official engages in deliberate and unlawful conduct in his or her capacity as a public officer while knowing that the conduct is both unlawful and likely to cause harm.29
69The case law indicates that abuse of power involves unlawful conduct. Even if the Respondent was responsible for what occurred, there is no evidence that a law was breached. As the Mayor explained at a subsequent meeting, the incident did not involve the use of confidential information. I have carefully reviewed the factual findings in the Consultant’s Report related to the alleged reprisal. They do not permit the conclusion that there was an abuse of power contrary to section B.3(ii).
Discrimination
70The alleged reprisal did not amount to discrimination. See under heading B starting at [paragraph 38].
Intimidation
71Intimidation means frightening or overawing someone, especially to make that person do what one wants.30 I have carefully considered the evidence related to the alleged reprisal including all the factual findings of the Consultant’s Report. They do not support a finding of intimidation.
Harassment
72Having reviewed the factual findings related to the alleged reprisal, I find there was no harassment. See [paragraphs 51 to 56], under heading C.
Verbal abuse
73I addressed verbal abuse in Moore v. Maika, 2018 ONMIC 7. The alleged reprisal involves questions, asked at a committee, about expenses. I do not find that the facts constitute “verbal abuse” as that term has been used in Canadian jurisprudence.
Adverse treatment
74I considered adverse treatment in Moore v, Maika. Again, I note that the alleged reprisal involves questions, based on publicly available information, that were asked during a committee meeting. Having considered all of the evidence related to the alleged reprisal I cannot find that there was adverse treatment.
75The circumstances surrounding the alleged reprisal do not show a breach of section B.3(ii) of the Code of Conduct.
RECOMMENDATION
76I recommend as follows:
That the Code of Conduct be amended to address reprisals against individuals who exercise their rights to complain to the Integrity Commissioner.
That the Code of Conduct be amended to permit or require the Integrity Commissioner to defer to another ongoing legal proceeding, or to defer to legislation or policy more suited to the subject matter of the complaint.
Respectfully submitted,
Guy Giorno
Integrity Commissioner
Township of Madawaska Valley
October 23, 2018
APPENDIX
Relevant Provisions of Code of Conduct, By‑Law Number 2014‑138
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.
D. INTERPERSONAL BEHAVIOUR OF MEMBERS OF COUNCIL:
- Treat every person with Dignity, Understanding and Respect:
Members of council shall abide by the provisions of the Human Rights Code and, in doing so, shall treat every person, including other members of council, corporate employees, individuals providing services on a contract for service basis, student on placements, and the public with dignity, understanding and respect for the right to equality, and the right to an environment that is safe and free from harassment and discrimination.
- Not to Discriminate:
In accordance with the Human Rights Code, members of council shall not discriminate against anyone on the basis of their race, ancestry, place of origin, colour, ethnic origin, citizenship, religious affiliation or faith, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status, or disability. “Age”, “disability”, “family status”, “record of offences”, “same sex partnership status”, shall be defined in Human Rights Code.
- Not to engage in Harassment or Bullying (Psychological Harassment):
In accordance with the Human Rights Code, harassment shall mean engaging in a course of vexations comment or conduct that is known, or ought to be known, to be unwelcome. Bullying is the ongoing health or career-endangering mistreatment of an employee, by one or more of their peers or supervisors. Unlikely to involve physical violence, it usually takes the form of psychological abuse. Often, verbal and strategic insults are intended to prevent targets from being successful in their job.
The exercise of performance management tools with respect to corporate employees for legitimate purposes by council is not harassment or bullying.
Footnotes
- Ordinarily I shorten Code of Conduct to “Code” but in this report I am using the longer title to avoid possible confusion with the Human Rights Code (Ontario).
- More generally, I have carefully considered all the information obtained in the course of this investigation, and I am only including in the report such matters as are necessary for its purposes.
- Four Council Members and two Volunteer Members.
- The Consultant’s Report calls the event “Art in the Woodpile” and the Complainant calls it “There is Art in Your Woodpile.” For consistency I use the Complainant’s wording.
- Officially this was recorded as the March 1 meeting of the committee. It began March 1, was recessed and resumed March 3, and then recessed and resumed March 10.
- Appointment by-law enacted June 20, 2016, with retroactive effect.
- The Complainant took the position throughout that the Complainant was not required to initiate the Code of Conduct process by filing a complaint (request for referral) because Council’s May 16, 2016, decision already placed the matter before the Integrity Commissioner. The Complainant filed the July 13, 2016, complaint without prejudice to this position.
- In the HRTO proceeding the “respondents” were both the Township and the Code of Conduct Respondent. It is unclear to whom the word “respondent,” in this section of the settlement agreement, refers.
- Standard practice in these reports is to edit direct quotations to correct spelling, grammar and names,, and to achieve uniformity in punctuation and capitalization.
- Both parties had full opportunity to participate, and did participate, in the Consultant’s investigation.
- As transcribed in the Consultant’s Report.
- Codes of conduct are by-laws, and rules of statutory interpretation apply.
- Including the Code of Conduct.
- City of Toronto, Report on Complaint (April 6, 2005), Integrity Commissioner David Mullan, at 4.
- Giggey v. York Region District School Board, 2009 HRTO 2236 at para. 7.
- Giggey, note 15, at para. 7.
- Fletcher Challenge Canada Ltd. v. British Columbia (Council of Human Rights) (1992), 1992 CanLII 1119 (BC SC), 97 DLR (4th) 550
- Bitonti et al. v. The College of Physicians and Surgeons of BC et al., 1999 BCHRT 63, at para. 148.
- Dobbin v. Canada (Department of Fisheries and Oceans), [2005] FC 1020
- Rosen v. Corporation of the Town of Blue Mountains, 2012 ONSC 4215, at para. 68; Bishop obo Resident Hunters Association of B.C. v. B.C. (Ministry of Environment) (No. 2), 2009 BCHRT 72, at paras. 25-27
- Amalgamated Transit Union (Local 583) v Calgary (City), 2008 CanLII 88079 (AB GAA), at para. 27.
- Waffle v. Lieutenant Governor in Council for B.C., 1996 CanLII 541 (BC SC)
- Ibid.
- Note 15.
- Note 17.
- B.C. v. London Police Services Board, 2011 HRTO 1644, at paras. 46-48.
- Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39, at para. 73.
- Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69 at para. 30.
- Ibid., at para. 23.
- Oxford Living Dictionaries.