Baker v. Ryan et al., 2019 ONMIC 4

TOWN of MONO integrity commissioner, GUY GIORNO

Citation: Baker v. Ryan et al., 2019 ONMIC 4 Date: April 4, 2019

REPORT ON INVESTIGATION

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://mono.civicweb.net/document/47222?printPdf=true (see minutes of April 9, 2019, Resolution #18-7-2019)

TABLE OF CONTENTS

THE COMPLAINT 3

SUMMARY 3

BACKGROUND 3

PROCESS 5

POSITIONS OF THE PARTIES 6

Complainant 6

Respondents 7

Complainant’s Reply 7

ISSUES RAISED IN THE INVESTIGATION 8

ANALYSIS AND FINDINGS 8

(A) Does this matter fall outside my jurisdiction because it relates to a closed meeting? 8

(B) Would it contravene the Code of Conduct for a Council Member to conceal the truth deliberately, or to mislead or to deceive the public? 8

(C) Is there any evidence that Respondents deliberately concealed the truth, or misled or deceived the public? 10

CONCLUSION 10

CONTENT 10

THE COMPLAINT

1Mr. Lewis Baker (the Complainant) alleges that all Members of the previous Council (the Respondents¹) breached the Code of Conduct for Members of Council, By-law Number 2016-08,² by moving into a closed meeting to discuss recovery of the Town’s costs in a Niagara Escarpment Hearing Office (NEHO) proceeding.

2Specifically, the Complainant alleges that the Respondents went into a closed meeting, May 8, 2018, to conceal the truth about consulting fees for the NEHO proceeding formally known as Dallan v. Ontario (Niagara Escarpment Commission),³ in order “to deceive and mislead the taxpayers of Mono.”

SUMMARY

3The jurisdiction of an Integrity Commissioner is limited to the Code of Conduct. The concerns of the Complainant do not relate to any specific rule under the Code of Conduct. This does not mean that the issue raised by the Complainant is unimportant. It simply means that the Code’s rules do not address the matter.

4The Complainant might be right to demand public accountability for the $57,335 expenditure on consulting fees. As Integrity Commissioner, I express no position on this point. It is a political question, not an issue under the Code of Conduct.

BACKGROUND

5The Town appealed the Niagara Escarpment Commission’s conditional approval of a development permit related to a property in the Niagara Escarpment Plan area.⁴ It is common knowledge in the community that the issue was whether and to what extent a human-made pond on a decommissioned gravel pit could be used for water skiing events. The owners⁵ also appealed the conditional approval.

6The owners, whose daughter is a champion water skier, had originally received a development permit permitting them to host four non-profit competitions per year for three years. As a result of the legal proceeding, the owners are able to hold only two competitions per year.

7The NEHO proceeding involved ten pre-hearing conferences and ten additional hearing days. The NEHO report⁶ was issued May 31, 2017.⁷ The Minister⁸ issued a final decision, April 30, 2018.

8The Town felt that it was largely successful on the appeal, while the owners believed that they were largely successful.⁹ According to the NEHO, the result was mixed success.¹⁰

9The Town’s costs of NEHO proceeding include net legal fees of $195,245 and net consulting fees of $57,335.¹¹ The proceeding also consumed an unquantified amount of staff time. It is not disputed that the Town invested more than a quarter-million dollars, plus the cost of staff time, on the NEHO water skiing case. Of this amount, it ultimately recovered just $2000.

10The consulting fees relate to expert professional advice in the areas of hydrogeology, engineering, noise and land-use planning. The Town originally intended to call three professional witnesses to provide expert evidence on noise, minimum distance separation, and planning. The Town did not end up calling evidence on noise or minimum distance separation and, in lieu of a consultant’s evidence, it had its CAO/Clerk testify on planning.

11The Town’s law firm was not a participant in this Code of Conduct proceeding nor was any of the consulting firms. It is not my place and it is not within my jurisdiction to review the amounts billed. I expressly refrain from comment on them.

12The Town sought an order that the owners pay a portion of the Town’s legal fees. The Town sought $86,500. In the end, the NEHO awarded the Town only $2000.¹²

13The Town did not seek to recover any portion of the $57,335 it spent on consultants.

14Town Council made the decision to recover its legal costs on May 8, 2018, following an 11-minute closed meeting. The decision to go into closed meeting, in the context of a decision not to seek recovery of consulting fees, leads, ultimately, to this Complaint.

15The Complainant believes that the $57,335 spending on consultants should be subject to public scrutiny. He asks rhetorically whether the consulting fees were for work performed, whether the work was properly done, whether fees were over charged, whether the consultants’ work was required for evidentiary purposes, and whether the need for evidence was miscalculated. I observe, once again, that these are not questions an Integrity Commissioner can answer. I note, again, that neither the law firm nor any consulting firm participated in this Integrity Commissioner proceeding and therefore none was in a position to address the Complainant’s comments.

16According to the Complainant, the decision to go into closed meeting prevented an airing of these questions. The Complainant alleges that this decision amounted to deception. In his words:¹³

“The motion on May 3, 2018 in-camera regarding the legal fees masked the deception to which members of Council were complicit – the issue of the consultant fees would therefore never be subject to public scrutiny.

“The truth was concealed to deceive and mislead the taxpayers of Mono. Council members’ participation was inappropriate. There is no public record that the subject consultant fees were ever considered and debated by Council. The $57,377.00 [sic] and the issue have disappeared!

“Council members must be held accountable and in-camera is not to be employed as a rug under which dirty municipal deeds can be swept.

“A reproof of Council members is not only necessary but mandatory. Members of Council must act with integrity at all times – i.e., free of concealing the truth in order to purposely mislead.”

17The Complainant concludes: “A complete public disclosure of the agenda and the final minutes of the May 8/18 in-camera meeting is imperative.”

PROCESS

18In operating under the Code, I follow a process that ensures fairness to both the individual bringing a complaint (Complainant) and the Council Members responding to the complaint (Respondents). The fair and balanced process I normally use is consistent with the requirements of the Code. The process includes the following elements:

• The Respondents receive notice of the Complaint and are given an opportunity to respond.

• The Respondents are made aware of the Complainant’s name. I do, however, redact personal information such as phone numbers and email addresses.

• The Complainant receives the Respondents’ Responses and is given an opportunity to reply.

• After the reply stage, I often accept supplementary communications and submissions from the parties, but only on the condition that parties generally get to see each other’s communications with me. I do this in the interest of transparency and fairness.

19When the Complainant first contacted me, I was of the initial impression that his concern was more properly raised with the closed meeting investigator appointed under section 239.2 of the Municipal Act. I gave him contact information for the closed meeting investigator (which is an organization, not an individual).

20I was not privy to communications between him and the closed meeting investigator. What I do know is that, after contacting the closed meeting investigator, Mr. Baker decided to formulate his concern as an alleged contravention of the Code of Conduct. He delivered the Complaint to me in person, January 8.

21I took time to review the Complaint and to determine whether to open an investigation file. After careful consideration, I decided to commence an investigation.

22Meanwhile, on February 14, the Town staff reported to Council recommending that the Code of Conduct be updated to conform to the Modernizing Ontario’s Municipal Legislation Act, 2017. Acting on this recommendation, Council repealed By-law Number 2016-08, the old Code of Conduct, and replaced it with By-law Number 2019‑11, the new Code of Conduct.

23Having considered the matter, I concluded that By-law Number 2016-08, not By-law Number 2019-11, applies to the handling of this Complaint. By-law Number 2016-08 was in effect May 8, 2018, the date of the incident that gives rise to the Complaint.

24I shared the Complaint with the five Respondents. I received their Responses between March 12 and March 18. The Responses were shared with the Complainant.

25The Complainant replied March 29.

26After receiving the Complaint, the Responses and the Reply, I have determined that there is no disagreement about the background facts and it is not necessary to take further investigative steps. I am, therefore, proceeding directly to report to Council.

27In preparing this report, I have taken into account all the submissions of the parties and all the accompanying materials.

POSITIONS OF THE PARTIES

Complainant

28As I have explained, the Complainant alleges that the Respondents were acting deceptively by going into a closed meeting with the result that the $57,335 of spending on consultants was not subject to public scrutiny.

29The Complaint material includes an excerpt from the rules for NEHO proceedings indicating that consultants’ fees are included among “eligible expenses that may be recovered through [an award of] costs.” I understand Mr. Baker’s argument to be that recovery of the consulting fees was not pursued so the Town would avoid NEHO scrutiny of whether those expenses were unnecessarily incurred.

30The Complainant says he asked both the Mayor and the CAO why the Town did not seek a cost award related to the $57,335 spending on consultants and both replied that they could not discuss the matter because it was discussed during the May 8 closed meeting.

Respondents

31The Respondents maintain that they complied with the Code of Conduct.

32Ken McGhee, former Deputy Mayor, submits that, because the Complaint relates to the propriety of going into a closed meeting, the matter lies within the jurisdiction of the closed meeting investigator.¹⁴

33Mayor Laura Ryan, Councillor Ralph Manktelow and Councillor Sharon Martin state that Council went into closed meeting to hear legal advice related to the NEHO proceeding, and that information received during that closed meeting was and remains confidential.

34Mayor Ryan and Councillor Fred Nix submit that the decision to go into closed meeting complied with section 239 of the Municipal Act.

35Councillor Manktelow and Councillor Nix note that the Code of Conduct, section 1.5, requires Council Members to respect the confidentiality of certain information, including “matters relating to the legal affairs of the Town.”

Complainant’s Reply

36The Complainant submits that the Respondents’ general denials do not address “the real purpose for the in camera issue: who is really being protected and why?”

37He states that matters considered in closed meeting are only confidential if the subject matter and circumstances are appropriate for closed-meeting consideration.

38The Complainant disagrees that the consulting fees were “matters relating to the legal affairs of the Town” under section 1.5 of the Code of Conduct, as the fees were not the subject of a legal issue being contested.

39He says the CAO and Mayor told him that the consulting fees were on the agenda of the closed meeting, but he notes that neither the motion to go into closed meeting nor the resolution adopted following the closed meeting mentioned consulting fees. He feels it was “intentionally deceitful” not to disclose, on the public record, that consulting fees were considered during the closed meeting.

40He repeated that, despite having engaged and paid for their services, the Town did not introduce the consultants’ evidence during the NEHO proceeding.

41On the jurisdictional issue of whether the matter should be handled by the closed meeting investigator: The Complainant says he dealt for two weeks with a member of the organization appointed as the Town’s closed meeting investigator and says he was referred back to the Integrity Commissioner.

ISSUES RAISED IN THE INVESTIGATION

42I have considered the following issues:

(A) Does this matter fall outside my jurisdiction because it relates to a closed meeting?

(B) Would it contravene the Code of Conduct for a Council Member to conceal the truth deliberately, or to mislead or to deceive the public?

(C) Is there any evidence that the Respondents deliberately concealed the truth, or misled or deceived the public?

ANALYSIS AND FINDINGS

(A) Does this matter fall outside my jurisdiction because it relates to a closed meeting?

43Not entirely. To the extent that the Complaint alleges a contravention of the Code of Conduct, it falls within my jurisdiction. Otherwise, I lack jurisdiction.

44Section 239 of the Municipal Act requires that, except as provided in that section, all meetings shall be open to the public. I have no jurisdiction to consider whether Council complied or failed to comply with section 239. A complaint alleging non-compliance with section 239 of the Municipal Act lies within the jurisdiction of the closed meeting investigator appointed under section 239.2.

45Mr. Baker has, however, formulated his complaint to allege a contravention of the Code of Conduct, not a contravention of section 239. While I do not have authority to consider an allegation pertaining to compliance with section 239, I do have jurisdiction to consider an alleged breach of the Code of Conduct. In this case, the allegation is that the Respondents breached the Code by concealing the truth in order to deceive and to mislead the public. To that extent, and only to that extent, I find that the Complaint falls within an Integrity Commissioner’s jurisdiction.

(B) Would it contravene the Code of Conduct for a Council Member to conceal the truth deliberately, or to mislead or to deceive the public?

46No.

47At this point in the report, it is useful for me to note the limits of an Integrity Commissioner’s role. I am confined to determining whether the Code of Conduct was breached.

48It is not for me to judge whether a quarter-million dollars (not including staff time) was an appropriate amount to invest in a legal proceeding over whether two, as opposed to four, water ski tournaments may be held annually on the site of a decommissioned gravel pit. That is a political question. It is not an issue under the Code of Conduct.

49It is not my role to determine whether the legal fees and consulting fees reflect value for money. I expressly decline to make any comment on the subject. The issue lies entirely outside the Code of Conduct. Further, as I have pointed out twice already, the law firm and the consulting firms are not part of this proceeding and they have had no opportunity to address the matter.

50The Complainant feels there should be public accountability for the spending on consulting fees. However, no section of the Code of Conduct requires this public accountability. My determination that public accountability lies outside the Code of Conduct is not a statement that public accountability is unimportant. It just isn’t addressed by the Code of Conduct.

51Even if someone had deliberately concealed the truth, or misled or deceived the public, the Code of Conduct does not address the situation. The Code is silent on these matters.

52The Code of Conduct is a by-law. Principles of statutory interpretation apply. I am required to interpret the by-law as it was enacted. I cannot add new provisions, even to deal with principles as important as honesty and truth. In other words, I lack jurisdiction to find that deceiving or misleading contravenes the Code, because the Code contains no such rule in the first place.

53Council Members are subject to penalties if they contravene the rules in the Code of Conduct. As a matter of fairness, they cannot be found in contravention of a rule that is not written down, clearly and unambiguously, in the Code. Council Members must be able to understand plainly the conduct that is required. In this respect I refer to the observations of Integrity Commissioner Swayze in Hayes v. Miles (May 12, 2015), City of Brampton Report L05 IN, at page 4:

“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]

54While I do not agree that being busy is relevant to interpretation of the Code, I accept and adopt Integrity Commissioner Swayze’s position that a Council Member can only be found in breach of a rule if it is clearly stated in the Code.

55Mono’s Code of Conduct contains no rule that addresses deliberate concealment of the truth, or misleading or deceiving the public. It is Council’s place to decide what belongs in the Code of Conduct. I cannot impose such a rule on my own.

(C) Is there any evidence that Respondents deliberately concealed the truth, or misled or deceived the public?

56No.

57The Complainant argues strongly for accountability and transparency.

58It is true that, as a result of the closed meeting, there was no public discussion of the $57,335 spent on consulting fees.

59It does not necessarily follow, however, that there was a deliberate effort to mislead and deceive the public.

60A general principle of Canadian law is that the person who asserts a point must prove it. The Complainant has not established a deliberate concealment of the truth or deliberate misleading or deception.

61The Complainant might be right to demand public accountability for the $57,335 expenditure on consulting fees. As Integrity Commissioner, I express no position on this point. It is a political question, not an issue under the Code of Conduct.

CONCLUSION

62I find that the Respondents did not contravene the Code of Conduct.

CONTENT

63Subsection 223.6(2) of the Municipal Act states that I may disclose in this report such matters as in my opinion are necessary for the purposes of the report. All the content of this report is, in my opinion, necessary.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Town of Mono

April 4, 2019

Footnotes

1. 1The five Respondents are Mayor Laura Ryan, Councillor Ralph Manktelow, Councillor Sharon Martin, Councillor Fred Nix and the former Deputy Mayor, Mr. Ken McGhee.
2. 2The old Code was repealed by By-Law Number 2019-11 and replaced with a new Code of Conduct. Since the old Code was in effect at all relevant times, I have conducted this proceeding under the old Code.
3. 3NEHO Case No. 16-011. Related Case Nos. 16-012, 16-013, 16-014, 16-015, 16-016, 16-020, 16‑021, 16-024, 16-027.
4. 4Niagara Escarpment Commission File No. D/L/2014-2015/308.
5. 5Technically, there was a single applicant, 2222699 Ontario Inc., a company belonging to Dr. Cliff Singer. It was, however, commonly understood that for all practical purposes the property belonged to and was used by Dr. Singer and Mrs. Singer. In this report, I use the plural noun “owners” to refer to both the Singers and the numbered company.
6. 6I call it the “NEHO report” for convenience. Technically it was the report of Hearing Officers Karen Kraft Sloan and Robert V. Wright. Throughout this document, “NEHO” refers to the Hearing Officers.
7. 72018 CanLII 40481 (ON ERT)
8. 8Minister of Natural Resources and Forestry.
9. 9See NEHO decision on costs: Dallan v. Ontario (Niagara Escarpment Commission), 2018 CanLII 123941 (ON ERT), at para. 52.
10. 10Ibid., at para. 126.
11. 11Municipalities receive rebates on the HST they pay. These figures are the net amounts after accounting for rebate.
12. 122018 CanLII 123941 (ON ERT), at para. 158.
13. 13In quoting from documents, my practice in an investigation report is to correct obvious spelling errors without drawing attention to the correction unless the correction is material. This report also edits punctuation and capitalization for consistency.
14. 14Municipal Act, sections 239.1, 239.2.