<!--mc:cls:cover-masthead-->
Regional Municipality of Durham Integrity Commissioner, Guy Giorno
**Citation:** Durham Region (Council Member) (Re), 2018 ONMIC 2
**Date:** January 26, 2018
<!--mc:close:case-cover-->
## 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://calendar.durham.ca/meetings/Detail/2018-02-14-0930-Regional-Council-Meeting/2ae7410a-dc35-42a1-975b-a88e00bc67ed](https://calendar.durham.ca/meetings/Detail/2018-02-14-0930-Regional-Council-Meeting/2ae7410a-dc35-42a1-975b-a88e00bc67ed) (see minutes of February 14, 2018, resolution no. 17)
---
## TABLE OF CONTENTS
THE COMPLAINT. 3
SUMMARY. 3
PROCESS FOLLOWED.. 3
RECOMMENDATION.. 5
---
## THE COMPLAINT
[1] An individual (the Complainant) alleged that a Council Member (the Respondent) had contravened sections 7.1, 7.2 and 11 of the Region’s Council Code of Conduct. Many of the facts provided by the Complainant related to the Respondent’s activities as a councillor of a local municipality[^1] but the Complainant alleged that the conduct also included conduct in the Respondent’s capacity as a Regional Councillor that was contrary to the Region’s Code.
## SUMMARY
[2] After commencing an investigation and receiving representations from both parties I have decided to conclude the investigation because there are insufficient grounds to continue.
[3] The Code of Conduct and Complaint Procedure do not permit me to conclude an investigation without reporting to Council. I am recommending an amendment that would give the Integrity Commissioner increased flexibility to discontinue an investigation at any point that it becomes clear there are insufficient grounds to continue.
## PROCESS FOLLOWED
[4] In operating under the Code, I follow a process that ensures fairness to both the Complainant and the Respondent. The process is governed by the Council Code of Conduct Complaint Procedure.
[5] This fair and balanced process includes the following elements:
- The Respondent receives notice of the Complaint and is given an opportunity to respond.
- The Complainant receives the Respondent’s response and is given an opportunity to reply.
- More generally, the process is transparent in that the Respondent and Complainant get to see each other’s communications with me.
- The Respondent is made aware of the Complainant’s name. I do, however, redact personal information such as phone numbers and email addresses.
- As a further safeguard to ensure fairness, I will not help to draft a Complaint and will not help to draft a response or reply.
- Where appropriate I will, however, invite a Complainant to clarify a Complaint. When a Complaint has been clarified the Respondent is provided with the original document and all communications between the Complainant and me related to clarification.
- When a Complaint has been clarified I deem the date of final clarification to be the official date the Complaint was made.
[6] The Complaint Procedure provides that the Integrity Commissioner must review each Complaint to determine whether is related to non-compliance with the Code, whether it is frivolous, vexatious or not made in good faith, and whether there are sufficient grounds for an investigation.
- If the Complaint does not relate to non-compliance with the Code, it is deemed not to be a Complaint (Complaint Procedure, section 3.1).
- If the Integrity Commissioner is of the opinion that the Complaint is frivolous, vexatious or not made in good faith then the Integrity Commissioner shall not conduct an investigation (Complaint Procedure, section 4.1).
- If the Integrity Commissioner is of the opinion that there are no or insufficient grounds for an investigation then the Integrity Commissioner shall not conduct an investigation (Complaint Procedure, section 4.1).
[7] In each of these cases there is no investigation and no report to Council.
[8] It is often the case, however, that on a preliminary review the Integrity Commissioner is unable to form the opinion that a Complaint is frivolous, vexatious or not made in good faith or that there are no or insufficient grounds for an investigation. Often such a determination cannot be made until after an investigation has commenced and the Integrity Commissioner has heard from both parties.
[9] In this case, I gave the Respondent notice of the Complaint and an opportunity to respond, I reviewed the Respondent’s response and shared it with the Complainant, I reviewed and considered the Complainant’s reply, and I gave that reply to the Respondent. At this point in the investigation, I am of the opinion that there are insufficient grounds to continue. I am not satisfied that there is alleged conduct as a Regional Council Member that could be contrary to the Region’s Code that justifies further investigation.
[10] The Code (as opposed to the Complaint Procedure)[^2] provides broad authority to dismiss a Complaint on the basis that it constitutes an abuse of process or is frivolous or vexatious. Section 16.3 of the Code provides as follows:
> “Without limiting the generality of Section 16.1, the Integrity Commissioner may determine, on a case-by-case basis, whether to undertake an investigation or not to undertake an investigation. The Integrity Commissioner shall be entitled to summarily dismiss a complaint filed in accordance with the Complaint Procedure on the basis that it constitutes in his or her opinion, an abuse of process or is frivolous or vexatious.”
[11] I interpret the Code as providing authority to dismiss a frivolous, vexatious or abusive Complaint at any time, even partway through an investigation. On the other hand, the Code does not address the situation of insufficient grounds to investigate or to continue to investigate.
[12] The Complaint Procedure addresses the situation of insufficient grounds, but only before the investigation commences. The Complaint Procedure does not contemplate the scenario in which the Integrity Commissioner determines, partway through an investigation, that there are insufficient grounds to continue:
- It addresses what happens if the Complainant abandons or withdraws the Complaint (sections 8.1 A and 9.2).
- It addresses what happens if the parties reach a settlement (section 9.2).
- It addresses what happens if the investigation is suspended to defer to a law enforcement proceeding (section 8.1 B).
- It does not contemplate that the Integrity Commissioner may reach a point in the investigation where there are insufficient grounds to continue.
[13] The Complaint Procedure only provides for the Integrity Commissioner to conclude the investigation and to report to Council.
[14] I am, therefore, concluding the investigation and reporting to Council.
[15] The Municipal Act provides that the Commissioner may disclose in a report such matters as in the Commissioner’s opinion are necessary for the purposes of the report. The Complaint Procedure provides that I shall only disclose such information as in my opinion is required. The detail in this report is what in my opinion is required.
## RECOMMENDATION
[16] In my experience, it is not always obvious upon initial review of a Complaint that there are insufficient grounds for an investigation. Sometimes this becomes apparent only after an investigation has commenced and the Integrity Commissioner has the opportunity to consider not just the Complaint but also the Response and the Complainant’s Reply.
[17] I recommend that the Complaint Procedure be amended to confirm that the Integrity Commissioner has the discretion to discontinue an investigation at any point.
[18] Specifically, I recommend that the Complaint Procedure be amended by replacing section 4 in its entirety.
[19] Current:
> “4. Refusal to Conduct an Investigation
>
> “4.1 If upon review of a Complaint, the Integrity Commissioner is of the opinion that the Complaint is frivolous, vexatious or not made in good faith, or that there are no or insufficient grounds for an investigation, the Integrity Commissioner will not conduct an investigation and shall communicate this position in writing to the Complainant and the member identified in
minicounsel