Beyak et al. (Re), 2018 CanLII 140171

CITY OF DRYDEN integrity commissioner, GUY GIORNO

Citation: Beyak et al. (Re), 2018 ONMIC 8 Date: September 19, 2018

REPORT ON COMPLAINTS

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://dryden.civicweb.net/filepro/documents/70337?preview=74862 (see minutes of September 24, 2018, resolution no. 18)

TABLE OF CONTENTS

THE COMPLAINTS.. 3 SUMMARY. 3 BACKGROUND.. 3 PROCESS FOLLOWED.. 4 POSITIONS OF THE PARTIES.. 5 Complainants’ Position. 5 Respondents’ Positions. 6 ANALYSIS AND FINDINGS.. 7 A. Preliminary Issue. 7 B. Section 4.3.2. 9 C. Sections 7.2.1, 7.2.2 and 7.2.3. 10 D. Section 7.3.5. 12 FINAL OBSERVATION.. 12 CONCLUSION.. 12 RECOMMENDATION.. 13

THE COMPLAINTS

1Two Complainants allege that several Members of Council breached the following provisions of the Council Code of Conduct, City Policy MU-CO-11:

• 4.3.2 (Impartiality)
• 7.2.1, 7.2.2 and 7.2.3 (Conduct Respecting Others)
• 7.3.5 (Conduct Respecting Staff)

SUMMARY

2The actions of the Mayor and Councillors did not breach the Council Code of Conduct. The issue involves a public policy debate, not a breach of the Code. Unless the Code has been contravened there is no role for the Integrity Commissioner.

BACKGROUND

3I received two Code of Conduct complaints, on April 12 and April 18, respectively. Each complaint was submitted by a different Complainant.

4The first complaint (2018-01) alleged contraventions by Respondents Councillor Beyak, Councillor Carlucci, Councillor MacKinnon and Mayor Wilson.

5The second complaint (2018-02) alleged contraventions by Respondents Councillor Beyak, Councillor Bush, Councillor Carlucci, Councillor MacKinnon and Mayor Wilson.

6In late 2017 and early 2018, City Council had examined various models for providing fire services in the community. In part, this involved examining whether the City of Dryden would be most effectively served by a volunteer, paid, or a mixed model of firefighting services. It is not my place to evaluate this public policy issue and I take absolutely no position on it.

7The complaints both relate to Council Members’ conduct in relation to the Fire Service. In particular, both allege a pattern of behaviour that amounts to “collusion,” “bullying,” “intimidation,” and “harassment,” to list a few used by the Complainants. The Complainants also believe that Council failed to act in a transparent or democratic manner when it made changes to the provision of fire services in Dryden.

8The provision of fire services in the City of Dryden is an important matter of public policy that is beyond the scope of my investigation. The issue lies outside my jurisdiction. My only authority is to consider whether the Code was contravened.

9Typically, complaints filed by separate Complainants are handled separately. In this case, however, as the complaints raised similar issues arising from essentially the same subject matter, and involved the same Respondents (except that Councillor Bush was named in complaint 2018-02 and not 2018-01).

10I asked the Complainants whether they would consent to me investigating and reporting on the complaints at the same time. I asked this as a matter of efficiency in my investigation and economy for the City, as this would avoid unnecessary duplication of communications. Both Complainants agreed.

PROCESS FOLLOWED

11I first review a complaint to ascertain whether the allegations pertain to specific sections of the Code that are capable of being breached. For obvious reasons, I will only investigate (and invite Respondents to address) a complaint or portion of a complaint that is clear and may give rise to a breach of the Code. It is fair that a Respondent only be asked to respond to allegations that would, if upheld, amount to a contravention of the Code.

12In this case, I determined that three of the provisions cited in the complaints (1.1 Policy Statement, 2.6 Purpose, and 5.0 Principles) cannot be contravened and therefore cannot give rise to complaints. I informed the parties that I would not be investigating these matters. I explain my reasoning under the heading “A. Preliminary Issue,” below.

13Once I have determined that allegations in a complaint pertain to specific Code provisions that are capable of being contravened, I follow a process that ensures fairness to both the individuals bringing complaints (Complainants) and the Council Members responding to the complaints (Respondents).

14The fair and balanced process I normally use is consistent with the requirements of the Code. The process includes the following elements:

• A Respondent receives notice of the complaint and is given an opportunity to respond.
• A 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 each Respondent’s Response and is given an opportunity to reply.
• A Respondent receives the Complainant’s Reply.
• The process is transparent in that each party generally is given access to the other parties’ communications with me.
• After the Reply stage, I accept supplementary communications and submissions from the parties, typically sharing them among all parties.

15Aside from the fact that I considered two complaints simultaneously, this investigation was conducted in the open and transparent manner described above.

POSITIONS OF THE PARTIES

16The following is a brief summary of the positions of the parties. The Complainants and Respondents provided detailed submissions and I have taken into account everything they communicated to me, not just what appears in the brief summary below.

17Please note that the statements contained in this summary are not my findings. They are the positions of the parties. Everything in this section is something that a party has stated. My findings are in a different section.

Complainants’ Position

18The Complainants allege a series of bad faith efforts, by Council, to discredit the volunteer Dryden Firefighter Association (DFFA) in order to support the shift to a new model of service. The following are the allegations set out in the complaints:

19Allegations in File 2018-01:

• The City staff was acting on the direction of Council even though there is no record of a vote on the matter.
• Numerous Members of Council implied the volunteer firefighters were only concerned about “booze,” which I understand to be a reference to a practice of consuming alcohol in the fire hall.
• Members of Council threatened volunteer firefighters with termination if they refused to work with replacement firefighters.
• In making the case for a new model of fire service in the city, various Members of Council attempted to paint all of the volunteer firefighters with the same brush while using disrespectful language.
• Council refused to hold a town hall meeting on the issue, despite requests by the DFFA to do so; and
• Council ultimately voted on the fire service issue on March 19without adequate or fair public discussion.

20Allegations in File 2018-02:

• The City adopted a new alcohol policy for municipal buildings, including the fire hall, but did not apply it evenly and sent police officers only to the fire hall.
• A Councillor informed the news media that the shift in the fire service model was related to the alcohol policy.
• Council Members systematically ignored, and refused to acknowledge, the concerns of the DFFA.
• Council did not disclose the costs of a shift in the fire service model, despite the Complainant’s suspicion that figures are available.

Respondents’ Positions

21The Respondents categorically deny that they were a part of a collective effort to target the volunteer firefighters. They take the position that, as members of City of Dryden Council, they have an obligation to consider how to best provide the residents of the community with municipal services, including effective and safe fire services. For a number of reasons, they assert that this is exactly what they were doing.

22With respect to policy on alcohol in municipal buildings, one Respondent notes that this is an operational issue and that the City is fully competent to create and apply these policies. Another Respondent notes that Council was approached by a group of volunteer firefighters who were asking for another suitable space where they could consume alcohol. After seeking legal advice, Members of Council declined to entertain “any idea of sanctioning alcohol use by firefighters on City property.” The same Respondent states that for decades there has been an unhealthy culture of drinking on City property. To support this position, the Respondent refers to Mothers Against Drunk Driving statistics.

23Another Respondent notes that the decision to ask the police to enforce the alcohol policy in the fire hall was an operational decision made as a safety precaution at the request of the Fire Chief. One Respondent states that, while two police officers were initially dispatched to attend, two more officers arrived as backup out of fear of the volatile situation.

24Numerous Respondents point to a pattern of aggressive, angry statements from supporters of the volunteer firefighters on social media as cause for concern. They state that this was part of the reason for conducting some of their deliberations in private, even though, according to these Respondents, they had the legal right to consider the matter in a closed meeting.

25The Respondents also state that their opinions on this matter of important public policy were well-formed and that their votes on this issue were in the best interest of the community. While they believe that a different model for the provision of fire services may be in the best interest of the community, they are grateful for the work of the volunteer firefighters. To that end, one Respondent also points out that many of the volunteer firefighters did, in fact, return to work.

26Several Respondents observe that, while the Complainants are disappointed by the Council’s decision on fire services, it was a decision on which Council has voted.

ANALYSIS AND FINDINGS

27I have considered the following issues:

A. Preliminary Issue: Is it possible to contravene the “Policy Statement,” “Purpose” or “Principles” of the Code? Do these provisions create substantive obligations that Council Members must follow?

B. Did the Respondents breach section 4.3.2 by granting any special consideration, treatment or advantage in matters related to their position on Council to any citizen beyond which is available to any other citizen?

C. Did the Respondents breach section 7.2.1, 7.2.2 or 7.2.3 by using indecent, abusive or insulting words towards each other, the public or staff, or otherwise communicate in a manner that is discriminatory to any individual?

D. Did the Respondents breach section 7.3.5 by using authority, intimidation, threats or coercion to influence any member of the staff??

A. Preliminary Issue

Is it possible to contravene the “Policy Statement,” “Purpose” or “Principles” of the Code? Do these provisions create substantive obligations that Council Members must follow?

28No.

29As their names indicate, the “Policy Statement” (section 1.0), Purpose (section 2.0) and “Principles” (section 5.0)¹ of the Code do not contain rules. They are statements of policy and principles, but not rules.

30The Code was enacted by by-law. Ordinary principles of statutory interpretation apply.

31As a general matter, a statement of principle does not create an obligation. It merely states the principle(s) that may be used to interpret obligations created elsewhere in the law.²

32As explained in Sullivan on the Construction of Statutes, 6th ed.:

“Purpose statements may reveal the purpose of legislation either by describing the goals to be achieved or by setting out the governing principles, norms or policies. … However, like definitions and application provisions, purpose statements do not apply directly to facts but rather give direction on how the substantive provisions of the legislation – that do apply to facts – are to be interpreted.”³ [emphasis added]

33I find that the Code’s “Policy Statement,” “Purpose” and “Principles” provide interpretive direction only, and they do not create rules or obligations on Council Members that can be the subject of a complaint. The Policy Statement, the Purpose and the Principles do not contain enforceable rules.

34Another reason that I am not prepared to treat the Policy Statement, Purpose and Principles as binding rules is that they are too general and unspecific to be treated as clear, enforceable obligations. Council Members are subject to penalties if they contravene the rules in the Code; it necessarily follows that the rules must be clear, certain and unambiguous. Council Members must be able to understand clearly the conduct that is required. In this respect I refer to the observations of Integrity Commissioner Swayze in [Hayes v. Miles], City of Brampton Report L05 IN (May 12, 2015):

“In my experience members of councils in Ontario are busy people serving their community and want certainty in the interpretation of the many rules that apply to them. A code, by definition, is a set of rules of behaviour and should not be interpreted by each councillor according to subjective values. The rules need to be clear and where possible, capable of only one meaning.” [emphasis added]

35While I do not agree that being busy is relevant to interpretation of the Code, I accept and adopt Integrity Commissioner Swayze’s comments about the need for clarity, certainty and lack of ambiguity in the rules.

36I find that the Policy Statement, Purpose, and Principles of the Code cannot be contravened and cannot give rise to a complaint.

37For this reason, I told the Complainants that I would not consider the allegations under sections 1.0, 2.0, and 5.0 of the Code, and told the Respondents that it was unnecessary for them to address those sections.

B. Section 4.3.2

Did the Respondents breach section 4.3.2 by granting any special consideration, treatment or advantage in matters related to their position on Council to any citizen beyond which is available to any other citizen?

38No.

39Dissatisfaction with a policy decision does not support a complaint of differential treatment.

40The Complainant in 2018-01 referred to the section 4.3.2 (Impartiality), which states:

“4.3.2 Impartiality:

“Every Council Member must perform his/her duties in an impartial manner.

“Without restricting the scope of this rule, the following shall be considered breaches of the Code of Conduct:

“(a) No Member of Council shall grant any special consideration, treatment or advantage in matters related to his/her position on Council to any citizen beyond that which is available to any other citizen.”

41Both Complainants feel that Council did not treat citizens in an even-handed manner, especially with respect to what they allege is the uneven application of the City’s alcohol policy.

42Whether people are permitted to consume alcohol on City property is a policy decision for Council to make. It is not an issue that falls under the Integrity Commissioner’s jurisdiction.

43I understand that the Complainants feel the policy has not been consistently applied, but that alone does not give rise to an issue under section 4.3.2. The section says, “No Member of Council shall grant any special consideration, treatment or advantage in matters related to his/her position on Council …” [emphasis added]

44A breach occurs when a Council Member grants special consideration in matters related to the Council Member’s positon. There is no suggestion that any Council Member has granted others the right to consume alcohol on City property. It does not seem that drinking alcohol on municipal property is related to the Council Member’s position on Council. Even if enforcement of the alcohol policy is inconsistent, the situation does not involve a breach of section 4.3.2 by Council Members.

C. Sections 7.2.1, 7.2.2 and 7.2.3

Did the Respondents breach section 7.2.1, 7.2.2 or 7.2.3 by using indecent, abusive or insulting words towards each other, the public or staff, or otherwise communicate in a manner that is discriminatory to any individual?

45No.

46The situation does not amount to abuse, bullying, intimidation, discrimination or harassment under section 7.2.1.

47The language used by the Respondents did not rise to the level of indecent, abusive, or insulting words or expressions under section 7.2.2.

48This is not a case of discrimination under section 7.2.3.

49The following is the full text of section 7.2 in the Code of Conduct:

“7.2 Conduct Respecting Others:

“7.2.1 - Council Members shall treat each other, the public and staff appropriately to ensure the work and volunteer environment is free of abuse, bullying, intimidation, discrimination and harassment; and shall act in accordance with the City of Dryden Policy HR-HS-69: Harassment/Bully Free in the Workplace.

“7.2.2 - Council Members shall not use indecent, abusive, or insulting words or expressions towards each other, the public or staff; and shall act in accordance with the City of Dryden Policy HR-HS 70: Violence Free in the Workplace.

“7.2.3 - Council Members shall not speak or otherwise communicate in a manner that is discriminatory to any individual; or that is discriminatory in regard to any individual based on that person’s race, ancestry, ethnic origin, colour, place of origin, creed, citizenship, gender, sexual orientation, same-sex partnership status, age, record of offences, marital or family status, or disability.”

50For several months there was public disagreement about a significant policy decision. The Respondents were active participants in that debate, but debating such issues does not contravene the Code. Disagreement over policy is not a breach of section 7.2.1, 7.2.2 or 7.2.3.

51Section 7.2.1 refers to abuse, bullying, intimidation and harassment. (It also refers to discrimination, which will be addressed when I consider section 7.2.3.)

52The Respondents’ words that are the subject of the complaint include:

• The firefighters should be “embarrassed of themselves” for refusing to work with the Fire Chief.
• Some firefighters were “bullies” and were “holding the city hostage.”
• The dispute was all about “booze.”

53The Code does not define “abuse.” When words are involved, one author defines abuse as “Words that attack or injure, that cause one to believe the false, or that speak falsely of one. Verbal abuse constitutes psychological violence.”⁴

54No standard definition of abuse is found in court decisions or in human rights jurisprudence, but the human rights cases reveal a consistent approach: incidents found to constitute verbal abuse almost always included one or more of the following factors: insults based on a prohibited ground of discrimination, foul language (including foul insults), and yelling (including yelling of insults).⁵ The human rights cases are consistent with the observation of Patricia Evans that, “Verbal abuse is hostile aggression.”⁶

55I do not find that the (alleged) comments of the Respondents constituted “abuse” as that term has been used in Canadian jurisprudence.

56Nor do I find that the language constitutes bullying.

57Intimidation means frightening or overawing someone, especially to make that person do what one wants.⁷ The evidence does not support a finding of intimidation.

58Typically harassment involves a course of conduct or a pattern. Unless the incident is severe,⁸ a single incident does not amount to a course of conduct and therefore is not harassment.⁹ I not find that the comments made by the Respondents constitute harassment within the meaning of the Code.

59I find no breach of section 7.2.1.

60Section 7.2.2 refers to indecent, abusive, or insulting words or expressions. The words in question were not indecent. For the reasons above, they were not abusive. While there was a spirted disagreement about a matter of policy, the Respondents’ language was not insulting within the meaning of the phrase, “indecent, abusive, or insulting words or expressions …” I find no breach of section 7.2.2.

61Finally, section 7.2.3 does not apply because this is not a case involving discrimination or alleged discrimination under any of the grounds in the Human Rights Code.

D. Section 7.3.5

Did the Respondents breach section 7.3.5 by using authority, intimidation, threats or coercion to influence any member of the staff?

62No.

63Section 7.3.5 talks about using improper means in an attempt to influence someone on the staff:

“7.3 Conduct Respecting Staff:

“7.3.5 Council Members shall not use authority, intimidation, threats or coercion to influence any member of staff.”

64I am prepared to assume that volunteer firefighters should be considered part of the staff under section 7.3.5, but I find no indication of an attempt to influence the volunteer firefighters.

65There was a significant difference of opinion about a policy decision, and the Respondents and the volunteer firefighters were on different sides of the issue. Section 7.3.5 would apply only if the Respondents were trying to influence the volunteer firefighters, which was not the case.

FINAL OBSERVATION

66Government decision-making often affects different members of the public differently. According to the Supreme Court of Canada, “public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens.”¹⁰ An adverse effect, even a known adverse effect, in and of itself, does not constitute a wrong under Canadian law; a wrong is committed when a public official acts in bad faith or dishonestly or deliberately contrary to the obligations of her office.¹¹ There is no evidence of that occurring here.

CONCLUSION

67In Files 2018-01 and 2018-02, I find no contraventions of the Code.

RECOMMENDATION

68I recommend that this report be received.

Respectfully submitted,

Guy Giorno Integrity Commissioner City of Dryden September 19, 2018

Footnotes

1. 1The full title of section 5.0 of the Code is, “Principles upon which this Code of Conduct is Based.”
2. 2Greater Vancouver Regional District v. British Columbia (Attorney General), 309 BCAC 124, 2011 BCCA 345, at para. 45: “Section 3(c) purports only to state a principle … It is plain and obvious that s. 3(c) creates no legally enforceable obligation …”
3. 3Sullivan, R., Sullivan on the Construction of Statutes, 6th ed. (2014), at 454, §14.39.
4. 4Patricia Evans, The Verbally Abusive Relationship: How to Recognize It and How to Respond, 3rd ed. (Avon, MA: Adams Media, 2010), at 77.
5. 5Tahmourpour v. Royal Canadian Mounted Police, 2008 CHRT 10; Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14; MacLeod v. Lambton (County), 2014 HRTO 1330; Bushek v. NRS Quay Pacific Management and another, 1997 BCHRT 5; Jack v. Nichol, 1999 BCHRT 33; Fiallos v. PWD-Division of Instore Focus Inc., 2017 HRTO 469.
6. 6Patricia Evans, note 4, at 24.
7. 7Oxford Living Dictionaries.
8. 8B.C. v. London Police Services Board, 2011 HRTO 1644, at paras. 46-48.
9. 9Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39, at para. 73.
10. 10Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, at para. 28.
11. 11Ibid.