Township of Adjala-Tosorontio INTEGRITY COMMISSIONER, Guy Giorno

Citation: Anderson v. Bays, 2020 ONMIC 10
Date: September 28, 2020

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
PROCESS.. 4
ANALYSIS AND FINDINGS.. 4
CONCLUSION.. 5
PUBLICATION.. 5

CONTEXT

1. Among 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

2. Section 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.

3. David Anderson (the Applicant) alleges that Councillor Annette Bays (the Respondent) contravened sections 5, 5.1, and 5.2 of the MCIA by failing to declare a pecuniary interest in relation to a matter, and failing to withdraw from participation in discussion and from voting on the matter, during the October 2019 and November 2019 Council meetings.

4. The Application was made November 29, 2019. I assigned it File No. MCIA-2019-03.

DECISION

5. Subsection 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.

6. After 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 Annette Bays has contravened section 5, 5.1, or 5.2 of the MCIA.

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

BACKGROUND

8. The Respondent, Councillor Annette Bays, resides on a particular section of Concession Road 5.

9. Over a series of meetings, the Respondent gave notice of motion, moved and voted on a motion, and then voted to approve a by-law, to reduce to 60 km/h the speed limit on the section of Concession Road 5 where she resides. The final vote (to approve the by-law reducing the speed limit) occurred November 13, 2019.

10. The Respondent did not declare a pecuniary interest in the matter of lowering the speed limit on the section of Concession Road 5 where she resides. She did not refrain from decision making and voting.

11. The motion and by-law were specific to two or three sections of road,¹ including the particular section where the Respondent lives.

12. The Applicant takes the position that the Respondent has a pecuniary interest in the speed limit on the section of road where her residence is located. He cites an impact on property values and municipal service levels. He also refers to potential effects on property taxes, insurance rates, and other interests that one could classify as economic.

PROCESS

13. The statutory deadline for an Integrity Commissioner to complete an MCIA inquiry is ordinarily 180 days.

14. However, Ontario Regulation 73/20, made as a result of the COVID-19 emergency, had the effect of suspending the deadline, and stopping the clock, as of March 16, 2020.

15. Ontario Regulation 73/20 was revoked, and the clock started again, on September 14, 2020.

16. This determination is made within the statutory time limits.

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

ANALYSIS AND FINDINGS

18. A pecuniary interest is a financial interest.

19. I do not find that the Respondent has a pecuniary interest in the speed limit on the road outside her residence.

20. The jurisprudence is clear. 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,² definable³ and real.⁴

21. A pecuniary interest does not arise from speculation based on hypothetical circumstances.⁵ The pecuniary interest must exist at the time the matter is considered by Council or committee.⁶ Possible and potential future happenings do not amount to a pecuniary interest.⁷

22. I understand the points that the Applicant makes about possible economic effects of a change to the speed limit, but in my view these are precisely the sort of potential, speculative and hypothetical outcomes that do not give rise to a real and present pecuniary interest in the matter.

23. Councillor Bays might possess a non-pecuniary interest in the speed limit outside her residence, but a non-pecuniary interest is not a matter covered by the MCIA.⁸

24. There is no reason for me to apply to a judge for a determination as to whether Councillor Annette Bays has contravened the MCIA.

CONCLUSION

25. I will not apply to a judge under sections 5, 5.1, and 5.2 of the MCIA for a determination as to whether Councillor Annette Bays contravened the MCIA during the October and November 2019 meetings of Council.

PUBLICATION

26. The 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 2020 ONMIC 10.

27. Subsection 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 Adjala-Tosorontio
September 28, 2020

Footnotes

1. 1The notice of motion mentioned three sections of road. The motion as adopted, and the by-law, pertained to just two sections of road, including the section where the Respondent resides.
2. 2Bowers 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.
3. 3Lorello v. Meffe, 2010 ONSC 1976, at para. 59; Darnley v. Thompson, at para. 59.
4. 4Methuku v. Barrow, 2014 ONSC 5277, at paras. 43, 48; Lorello v. Meffe, at para. 59; Darnley v. Thompson, at para. 59.
5. 5Gammie v.Turner, 2013 ONSC 4563, at para. 57; Darnley v. Thompson, at para. 63.
6. 6Darnley v. Thompson, at para. 59.
7. 7Bowers v. Delegarde, at paras. 76, 78; Rivett v. Braid, at para. 51.
8. 8Wilson (Re), 2017 ONMIC 13, at para. 7.