Petrou v. Beach, 2019 ONMIC 11

TOWNSHIP OF UXBRIDGE INTEGRITY COMMISSIONER, GUY GIORNO

Citation: Petrou v. Beach, 2019 ONMIC 11
Date: September 13, 2019

REASONS FOR DECISION

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. No council decision. Because this is an inquiry under the Municipal Council of Interest Act, the Integrity Commissioner’s decision is not required to be filed with the municipal council.

TABLE OF CONTENTS

CONTEXT 3 THE APPLICATION 3 DECISION 3 BACKGROUND 4 TIMING 7 PROCESS 8 POSITIONS OF THE PARTIES 8 ISSUES 10 ANALYSIS AND FINDINGS 11 (A) Does Councillor Beach have a pecuniary interest in the Grainboys matter? 11 (B) Should I make an application to a judge? 11 (C) What about the instances when Councillor Beach has declared a pecuniary interest? 12 DECISION 12 PUBLICATION 13

CONTEXT

1Among their responsibilities, municipal Integrity Commissioners in Ontario conduct inquiries into applications alleging that council members or members of local boards have contravened the Municipal Council of Interest Act. At the end of such an inquiry, the Integrity Commissioner shall decide whether to apply to a judge under section 8 of the Municipal Conflict of Interest Act for a determination as to whether the member has contravened section 5, 5.1 or 5.2 of that Act, and shall publish reasons for the decision. Such decision is not subject to approval of the municipal council and does not take the form of a recommendation to council. There is, therefore, no municipal council resolution necessary to give effect to the decision.

THE APPLICATION

2This inquiry involves new statutory responsibilities of Integrity Commissioners that took effect March 1, 2019.

3Section 223.4.1 of the Municipal Act allows an elector or a person demonstrably acting in the public interest to apply in writing to the Integrity Commissioner for an inquiry concerning an alleged contravention of section 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act (MCIA) by a member of council or a member of a local board.

4Ceres Petrou (the Applicant) alleges that Councillor Pamela Beach (the Respondent) contravened section 5 of the MCIA by failing to declare a pecuniary interest in the zoning application made by Grainboys to the Township of Uxbridge.

5The complete Application, including the statutory declaration required by subsection 223.4.1(6) of the Municipal Act, was submitted March 14.

6Upon receiving the Application, I conducted an inquiry.¹

DECISION

7Subsection 223.4.1(15) of the Municipal Act states that, upon completion of an inquiry, the Integrity Commissioner may, if the Integrity Commissioner considers it appropriate, apply to a judge under section 8 of the MCIA for a determination whether the member has contravened section 5, 5.1 or 5.2 of that Act.

8After considering all the evidence and the submissions of the parties, I have decided that I will not apply to a judge for a determination whether Councillor Beach has contravened section 5 of the MCIA.

9Subsection 223.4.1(17) of the Municipal Act requires me to publish written reasons for my decision. These are my reasons.

BACKGROUND

10Grainboys Holdings Inc. applied to the Township for a zoning by-law amendment (Township File ZBA-2018-07) that would allow it to construct a mill (dry grain processing plant) on Regional Highway 47 east of Goodwood. Grainboys wants to move its Port Royal Mills facility from Aurora to there.

11Councillor Beach and her husband own a farm. According to her Website, “We live on a farm where we raise beef, cow-calf, horses, hay and grain crops.”

12Grainboys intends, if successful, to buy grains from local farms. According to the planning report submitted in support of its zoning application:

The proposed rural location is desirable for increasing the grower base locally and regionally for direct from field delivery and from nearby grain storage operations. The proposed location provides a new outlet for the farming communities and grain storage operations in the Township and the Region.”² [emphasis added]

Port Royal Mills anticipates that local producers will be encouraged to grow specialty grains to meet growing demand.”³

Truck traffic is expected to be approximately 10 trucks per day carrying approximately 35 tonnes (1400 bushels) of grain from farms and granaries in the Township, the Region and neighbouring municipalities.”⁴

The proposal supports agriculture by providing grain producers and grain storage operations a new outlet which can accommodate direct from field delivery and deliveries from granaries.”⁵

The proposed use supports agriculture and directly relates to farms growing grain in the Township, the Region and abutting municipalities and benefits from being in close proximity to farm operations and granaries.⁶ [emphasis added]

13Through 2018 and January 2019, when the Grainboys zoning by-law amendment was considered by Council or committee, the Respondent did not declare a pecuniary interest and did not recuse herself from participation on decision making or voting on the Grainboys matter. Meetings during which she participated in consideration of the Grainboys matter (or correspondence, reports or other business related to Grainboys) and did not declare an interest included the Council meetings of June 4, June 18, June 25, September 10, October 1 and December 10, 2018, and January 7, January 14 and January 21, 2019.

14A letter to the editor in the January 31, 2019, issue of The Uxbridge Cosmos suggested that under the MCIA Councillor Beach might, in fact, have a pecuniary interest in the Grainboys application.

15The Municipal Act provides that a council member may ask the Integrity Commissioner for advice on MCIA compliance. Both the request for advice and the response must be in writing. Councillor Beach wrote seeking advice on February 3, and then provided clarification for which I asked. I provided written advice 29 hours later.⁷

16A Council Member is free to share written advice from an Integrity Commissioner. Councillor Beach made public her request for advice and my response.

17An Integrity Commissioner, on the other hand, generally must keep the advice confidential and may only disclose it in certain circumstances. In these written reasons the Act permits me to disclose such information as in my opinion is necessary. Disclosure of the advice that I provided to Councillor Beach is necessary.

18My advice to the Respondent was as follows:

… while I am responding today to your request for guidance, March 1 will be the effective date of the new Municipal Conflict of Interest Act provision that permits a judge to take into account the fact that you sought guidance from the Integrity Commissioner.

I am basing this guidance on the information you provided as well as relevant court precedents.

Assuming that you have no business relationship with Grainboys and no current intention to enter into a business relationship with Grainboys, I believe that you do not have a pecuniary interest (either direct or indirect) in the application to amend the Zoning By-law to permit a dry grain processing plant.

These facts form the basis for my conclusion:

1. You grow grain primarily for use on your own farm, to feed the animals.

2. You do not routinely sell excess grain to a broker. Some years you sell only to local farmers and some years you do not sell grain at all.

3. The presence of the grain processing plant will not affect the price you obtain for excess grain or your opportunity to sell it.

If any of facts 1, 2 or 3 do not apply then you should not rely on this guidance and instead should provide the new facts to me and seek amended guidance.

The Act only applies to a pecuniary interest, whether direct or indirect, that is real and present. The Act does not apply to a pecuniary interest that is speculative or remote.

In my view, you have no pecuniary interest in the Grainboys application or, if you do have an interest, it is at most speculative and remote.

[original emphasis]

19The Grainboys application was considered by Council or a committee on February 4, February 11, February 25, March 4 and March 11. The first meeting occurred before my written advice was received; the Respondent declared a pecuniary interest and did not participate.

20Despite by then having received my written advice, on February 11, February 25, March 4 and March 11, the Respondent also declared a pecuniary interest and did not participate in voting or decision making on the Grainboys matter.

21On March 14, the Applicant submitted the application for this inquiry. The Applicant takes the position that, as a local grain grower, the Respondent has a pecuniary interest in the Grainboys application.

22The Applicant alleges contraventions of the MCIA based on failure to declare interests starting June 4, 2018. The Applicant also notes that the declarations that were made, starting February 4, 2019, are qualified by words such as “voluntary” or “perceived conflict”; the Applicant suggests that these declarations might be insufficient under the MCIA.

TIMING

23The Act requires that an MCIA application to the Integrity Commissioner be made within six weeks after the Applicant became aware of the alleged contravention.⁸

24The occasions when the Respondent failed to declare a pecuniary interest all occurred more than six weeks prior to the date of the application.

25The case law suggests a very low bar: not six weeks from when the facts occurred but six weeks from when the Applicant personally became aware of the alleged contravention. This is a subjective condition based on the timing of the Applicant’s personal knowledge⁹ including constructive knowledge.¹⁰ The six-week period starts not when the Applicant knows that the Respondent may have a conflict of interest in a matter, but when the Applicant knows that the Respondent was present at a particular meeting at which a matter of pecuniary interest was considered, and failed to declare the interest or took part in the discussion, voted, or tried to influence the outcome.¹¹ The timing is calculated based not on what the Applicant could have known, but on when the Applicant did know.¹² Once the Applicant believes that the MCIA has been contravened, the six-week clock starts running, even if the Applicant later acquires additional facts to support the belief.¹³

26As required by the Act,¹⁴ the Applicant submitted a statutory declaration that the Applicant became aware of the Respondent’s alleged contravention not more than six weeks before March 14. According to the Applicant, the awareness occurred January 31, when the Applicant read the letter to the editor of The Uxbridge Cosmos.

27I accept that the Applicant has satisfied the timing condition and I have conducted the inquiry on that basis.

PROCESS

28The Municipal Act does not direct the procedure that an Integrity Commissioner must follow in handling MCIA applications. I have chosen to follow a process that ensures fairness to both the individual making the application (Applicant) and the Council Member alleged to have contravened the MCIA (Respondent). This fair and balanced process includes the following elements:

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

29In making my decision, I have taken into account all the submissions of the parties and all of the evidence obtained during the inquiry.

POSITIONS OF THE PARTIES

30The Applicant submits that the Respondent has a pecuniary interest in the Grainboys application because her family farm grows grain (grain growing is one of the five farm activities listed on Councillor Beach’s website) and Grainboys plans to buy grain, including speciality grains, from local farmers.

31In the Applicant’s words:

[Grainboys] is also proposing to encourage local farmers to grow specialty grains. Specialty grains present a new business opportunity in the township and may generate higher profits compared to grains such as corn, wheat and barley that are typically grown in the township. Councillor Beach’s family stands to benefit if the proposed plant is approved and her family grows and sells grains to it.

Even [though] the Beach family has no current or planned business relationship with [Grainboys] the family’s expertise and capacity to grow grain sets it apart from the vast majority of residents of the Township of Uxbridge …

32The Applicant believes that Councillor Beach contravened the MCIA when she failed to declare a pecuniary interest in the Grainboys matter at every meeting from June 4, 2018, to January 21, 2019, that Grainboys was considered.

33The Applicant believes that Councillor Beach further contravened the MCIA each time she participated in discussion and voting on the Grainboys matter.

34The Respondent states that the farm raises beef cattle, cow-calf and horses, and grows hay, oats, and “rye usually.” She states that the family does not grow organic grains.

35According to her, the grain is used to feed the livestock because the beef is marketed as grass-fed beef and not corn-fed. She says, “The straw from the grain is used for bedding our cattle and horses, which is very important for the animals.”

36The Respondent explains that the farm harvests more than 200 acres of hay. In any given year, grain is grown on 20 to 40 acres.

37Last year (2018), the farm grew 25 acres of grain and all of it was used for feed and bedding. No grain was sold.

38When there is extra grain it is, according to the Respondent, typically sold to a local (Uxbridge) grain broker.¹⁵ She states that the broker usually must clean the grain to make it saleable. The broker might blend the grain with other grain before selling to other farmers or elsewhere; the Respondent does not know and is not told where the grain goes. The broker typically pays for the grain within two to three days after it is cleaned.

39Instead of selling to the local broker, the Respondent says that sometimes extra grain is sold to other farmers who are running short. Similarly, excess straw may be sold to other farmers who are in need.

40Sometimes there is no excess grain to sell. In 2018, as noted, the Respondent’s farm did not sell any grain.

41The Respondent’s position is that because the grain on her family farm is used primarily as feed for the cattle and horses, and as bedding, she does not have a pecuniary interest in the Grainboys application.

42The Respondent says that she has now been declaring a perceived pecuniary interest, “because of ongoing stress from phone calls and conversations from residents that were not accepting the [Integrity] Commissioner’s findings of no conflict.”

43She explains, “I removed myself from any further discussions and voting on the Grainboys file stating perceived conflict due to the actions of the residents.”

44The Applicant has not provided any alternative or contradictory facts that would challenge the Respondent’s explanation of how the farm operates and what happens to the grain.

45The Applicant does take exception to the Respondent’s claim (which the Applicant says has been repeated in public meetings) that the stress of “bullying” has caused the Respondent to withdraw from voting on and discussing the Grainboys matter.

46The Applicant notes that asking for a conflict of interest inquiry is a legal right and does not constitute bullying.

47The Applicant also says that the language being used by the Respondent to declare her pecuniary interest (“voluntary,” “perceived”) does not satisfy the MCIA.

ISSUES

48I have considered the following issues:

(A) Does Councillor Beach have a pecuniary interest in the Grainboys matter?

(B) Should I make an application to a judge?

(C) What about the instances when Councillor Beach has declared a pecuniary interest?

ANALYSIS AND FINDINGS

(A) Does Councillor Beach have a pecuniary interest in the Grainboys matter?

49The case law is clear that a pecuniary interest must be real and present, and not speculative or remote. Words the Courts have used to characterize an MCIA pecuniary interest include actual,¹⁶ definable¹⁷ and real.¹⁸

50A pecuniary interest does not arise from speculation based on hypothetical circumstances.¹⁹ The pecuniary interest must exist at the time the matter is considered by Council or committee.²⁰ Possible and potential future happenings do not amount to a pecuniary interest.²¹

51The prospect that the Respondent’s farm might one day grow the speciality grain sought by Grainboys is hypothetical and speculative; the prospect of selling grain to Grainboys is also hypothetical and remote.

52The Applicant states that, “Councillor Beach’s family stands to benefit if the proposed plant is approved and her family grows and sells grains to it.” The argument is based on what might be in future, not what is now: If the family starts to grow the type of speciality grains sought by Grainboys. If the family sells to Grainboys. “What ifs” do not give rise to a real and present pecuniary interest.

53The Respondent does not have a pecuniary interest in the Grainboys rezoning application. In my view, therefore, she did not contravene the MCIA on the nine occasions when she failed to declare pecuniary interest and instead participated in and voted on the Grainboys matter.

(B) Should I make an application to a judge?

54The Municipal Act leaves this decision to the Integrity Commissioner, based on what the Integrity Commissioner feels is appropriate.

55Having given the Respondent written advice that she does not possess a pecuniary interest in Grainboys, and having concluded that the Respondent did not contravene the MCIA, it would make no sense for me to commence a Court application in which I argue the opposite.

56If I commenced a Court application then I would bear the onus of proving that Councillor Beach breached the MCIA.²² I do not have evidence that would prove a breach.

57I do not consider it appropriate for me to apply to a judge for a determination as to whether Councillor Beach has contravened section 5 of the MCIA.

(C) What about the instances when Councillor Beach has declared a pecuniary interest?

58As I have explained, the Applicant also takes issue with the Respondent's recent (as of February) decision to declare a pecuniary interest and to refrain from discussing or voting on the Grainboys matter.

59Even though the Applicant feels strongly that Councillor Beach does have a pecuniary interest, the Applicant argues that it is inappropriate for Councillor Beach to declare a pecuniary interest without actually believing she has one.

60The Applicant suggests that referring to a “perceived” pecuniary interest and saying the declaration is “voluntary” (in other words, not actually required by the statute) do not meet the requirements of the MCIA.

61It is important to understand the limits of my role as Integrity Commissioner in relation to alleged MCIA contraventions. All I can do is to decide whether to bring an application, to a judge, about whether Councillor Beach has contravened the MCIA. I cannot require Councillor Beach to stop using words like “perceived” or “voluntary” or to stop saying she is under “stress” when she declares a pecuniary interest. I cannot require a Council Member to declare a pecuniary interest or not to declare.

62I have already explained my decision not to go to Court on the nine meetings where Councillor Beach failed to declare an interest. The only remaining question is whether I should go to Court in the recent meetings where Councillor Beach did declare a pecuniary interest, on the ground (alleged by the Applicant) that Councillor Beach declared insincerely and using unsatisfactory words. Even if the Applicant is correct about how declarations of pecuniary interest should be worded, I will not apply to the Superior Court on that issue alone. My decision is that I will not spend Uxbridge's money on a Court application over the allegation that a declaration of pecuniary interest was made using imperfect wording.

DECISION

63I will not apply to a judge under section 8 of the MCIA for a determination as to whether Councillor Beach contravened the MCIA when she failed to declare a pecuniary interest in Grainboys and participated in decision making and voting on June 4, June 18, June 25, September 10, October 1 and December 10, 2018, and January 7, January 14 and January 21, 2019.

64I will not apply to a judge for a determination as to whether Councillor Beach contravened the MCIA based on the manner in which she declared a pecuniary interest on February 4, February 11, February 25, March 4 and March 11, 2019.

PUBLICATION

65The Municipal Act requires that after deciding whether or not to apply to a judge, the Integrity Commissioner shall publish written reasons for the decision. This decision will be published by providing it to the Township to make public and by posting on the free, online database as decision 2019 ONMIC 11.

66Subsection 223.5(2.3) of the Municipal Act states that I may disclose in these written reasons such information as in my opinion is necessary. All the content of these reasons is, in my opinion, necessary.

Guy Giorno
Integrity Commissioner
Township of Uxbridge
September 13, 2019

Footnotes

1. 1Upon receipt, the Application was numbered as File MCIA-2019-01 (Township of Uxbridge).
2. 2Zelinka Priamo Ltd., Planning Justification Report (April 2018), p. 3.
3. 3Ibid.
4. 4Planning Justification Report, p. 7.
5. 5Planning Justification Report, p. 10.
6. 6Planning Justification Report, p. 17.
7. 7Technically, the new Municipal Act provisions on written requests for advice from an Integrity Commissioner, and written replies, did not take effect until March 1.
8. 8Municipal Act, subs 223.4.1(4).
9. 9MacDonald v. Ford, 2015 ONSC 4783, at para. 81; Kamstra v. Caldarelli (No. 2), 1971 CanLII 675 (ON HCJ), [1972] 1 O.R. 200 (H.C.J.) at 205; Re Smith and Adam (1987), 1987 CanLII 4232 (ON HCJ), 58 O.R.(2d) 579 (H.C.J.) at para. 12.
10. 10MacDonald v. Ford, at para 92.
11. 11Van Schyndel v. Harrell (1991), 1991 CanLII 7184 (ON CTGD), 4 O.R. (3d) 474 (Gen. Div.) at 476.
12. 12MacDonald v. Ford, at para 158.
13. 13Hervey v. Morris, 2013 ONSC 956, at para. 60-61.
14. 14Municipal Act, sub. 223.4.1(6).
15. 15In these reasons it is unnecessary for me to name the broker.
16. 16Bowers v. Delegarde, 2005 CanLII 4439 (Ont. S.C.), at para. 78; Darnley v.Thompson, 2016 ONSC 7466, at para 59; Rivett v. Braid, 2018 ONSC 352, at para. 51.
17. 17Lorello v. Meffe, 2010 ONSC 1976, at para. 59; Darnley v. Thompson, at para. 59.
18. 18Methuku v. Barrow, 2014 ONSC 5277, at paras. 43, 48; Lorello v. Meffe, at para. 59; Darnley v. Thompson, at para. 59.
19. 19Gammie v.Turner, 2013 ONSC 4563, at para. 57; Darnley v. Thompson, at para. 63.
20. 20Darnley v. Thompson, at para. 59.
21. 21Bowers v. Delegarde, at paras. 76, 78; Rivett v. Braid, at para. 51.
22. 22Gammie v.Turner, at para. 25.```