Township of Adjala-Tosorontio INTEGRITY COMMISSIONER, Guy Giorno
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.. 5
POSITIONS OF THE PARTIES.. 5
Applicant’s Position.. 5
Respondent’s Position.. 6
Additional 6
ISSUES.. 6
ANALYSIS AND FINDINGS.. 7
Did the Respondent have a pecuniary interest in the matter?. 7
Did the Respondent comply with the MCIA?. 7
Should I make an application to a judge?. 8
Decision.. 9
Publication.. 9
CONTEXT
- 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
This inquiry involves new statutory responsibilities of Integrity Commissioners that took effect March 1, 2019.
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.
Mr. David Anderson (the Applicant) alleges that Deputy Mayor Bob Meadows (the Respondent) contravened sections 5, 5.1 and 5.2 of the MCIA by failing to declare a pecuniary interest in open session and failing to file a written statement in relation to a matter considered during a July 10, 2019, closed session of Council.
The Application was submitted August 21.
Upon receiving the completed Application,1 I conducted an inquiry.
DECISION
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.
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 Deputy Mayor Meadows has contravened sections 5, 5.1 and 5.2 of the MCIA.
Subsection 223.4.1(17) of the Municipal Act requires me to publish written reasons for my decision. These are my reasons.
BACKGROUND
The public agenda for the July 10 Council meeting included, under the heading “Closed Session,” the following item: “Municipal Legal Counsel - Section 239(2)(b) and Section 239(2)(f) of the Municipal Act with respect to a Workplace Investigation.”
The staff recommendation was that Council adopt the following motion:
“That the Council of the Township of Adjala - Tosorontio convene in closed session in accordance with Section 239 (2)(b) of the Municipal Act, 2001 as amended to consider personal matters about an identifiable individual, including municipal or local board employees; and Section 239 (2)(f) of the Municipal Act, 2001 as amended to consider advice that is subject to solicitor-client privilege, including communication necessary for that purpose.”
Deputy Mayor Meadows moved the motion to go into closed session. The motion carried.
The Deputy Mayor entered closed session with the rest of Council and then exited a few minutes later.
Mr. Anderson, the Applicant, was present in the public gallery and witnessed the events. He surmised, correctly, that Deputy Mayor Meadows had left the closed session because of a conflict of interest.
When the closed session began, Deputy Mayor Meadows did not know anything about the subject, other than what was stated on the agenda. The Council had not received a written report on the item. The agenda indicated that the matter involved a workplace investigation and that advice subject to solicitor-client privilege, or necessary communication, would be considered.
When Council began to hear the oral report inside closed session, the specific workplace investigation was disclosed. At that point, Deputy Mayor Meadows felt that he might have a conflict. In particular, the Deputy Mayor felt that he might potentially be called as a witness by a party to the workplace investigation.
Deputy Mayor Meadows made a specific declaration inside the closed session, indicating the nature of the conflict, and then left the meeting without discussing the matter, voting on it, or attempting to influence the outcome.
The Deputy Mayor did not, however, file a written statement under section 5.1 of the MCIA.
Further, minutes of subsequent public meetings do not make reference to a July 10 declaration in closed session.
The Applicant submits that the Respondent contravened the MCIA by failing to declare the interest in public and failing to file the required written statement.
PROCESS
- The 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
- In 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
Applicant’s Position
The Applicant relies on the wording of the MCIA.
Section 5.1 requires that a written statement of the interest and its general nature be filed with the Clerk during the meeting or as soon as possible after the meeting.
Subsection 6(2) provides that when a declaration is made in closed session, the declaration (but not its general nature) shall be recorded in the minutes of the next meeting that is open to the public.
Mr. Anderson submits that the Deputy Mayor is an experienced Council Member and is aware of the requirements of the Act.
While a declaration was made in closed session, Mr. Anderson says the Deputy Mayor should have followed through with a written statement and public minuting under the MCIA.
Respondent’s Position
The Deputy Mayor’s position is that he complied with the MCIA by making a declaration in closed session and then exiting the meeting.
He says he declared a conflict “just to be on the safe side.”
Deputy Mayor Meadows agrees that he did not provide a written statement, and explains that he did not want to disclose an aspect of what occurred during the closed meeting. He says he was concerned about potentially contravening the Municipal Act if he did so.
He notes that the declaration he made inside the closed session clearly described the nature of the conflict.
Additional
- The parties also exchanged submissions on how it was that Mr. Anderson knew Deputy Mayor Meadows declared a conflict in closed session. I do not consider those submissions to be relevant to the issue before me.
ISSUES
I have considered the following issues:
Did the Respondent have a pecuniary interest in the matter?
Did the Respondent comply with the MCIA?
Should I make an application to a judge?
ANALYSIS AND FINDINGS
1. Did the Respondent have a pecuniary interest in the matter?
The Deputy Mayor’s connection to the workplace investigation was not financial.
The Divisional Court has defined pecuniary interest as follows: “Generally, it is a financial interest, an interest related to or involving money.”2
Consequently, I find that Deputy Mayor Meadows had no pecuniary interest in the matter discussed in closed session.
He may have had a non-pecuniary interest, but a non-pecuniary interest is not a matter covered by the MCIA.3 Instead, is it subject to common law.
The common law concept of bias includes some principles that could apply to non-pecuniary interests of Council Members: namely, the prejudgement (closed-mind) rule and the personal-interest rule. The prejudgement (closed-mind) rule is not relevant to the present case. The personal interest rule might possibly apply.
The personal-interest rule requires that municipal councillors refrain from dealing with matters in respect of which they have a personal interest or other interest.4 A disqualifying personal interest (personal interest that that leads to bias or the reasonable perception of bias) may also result from a councillor’s association with a party or the councillor’s personal hostility to a party.5
The personal-interest rule might be the principle that the Deputy Mayor had in mind when he declared a conflict. If he did so on that basis, then he was acting pursuant to a common law principle, and not because he was obliged by the MCIA.
2. Did the Respondent comply with the MCIA?
The Applicant is correct about how the MCIA operates.
Section 5.1 requires that a Member file with the Clerk a written statement of the interest and its general nature. Filing is to occur at the meeting or as soon as possible afterwards. Section 5.1 applies to declarations of interest made at closed meetings. There are no exceptions.
When a declaration of interest is made in closed session, subsection 6(2) provides that the fact of the declaration but not the general nature of the interest shall be recorded in the minutes of the next open meeting. By excluding disclosure of the general nature of the interest, the Legislature has protected the confidentiality of closed meeting deliberations.
It should be noted that individual Council Members are not responsible for minuting declarations pursuant to section 6 of the MCIA.
It is clear that all the steps in the MCIA were not followed.
In my opinion, however, the MCIA did not apply.
Section 5.1 applies when the Member “discloses an interest under section 5.” Subsection 6(2) applies to a “declaration of interest made under section 5.” [emphasis added in both cases]
What constitutes a disclosure or declaration under section 5? It can only be one that relates to a pecuniary interest. The language of subsection 5(1) makes this clear.
In this case, Deputy Mayor Meadows did not have a pecuniary interest. He was, therefore, not declaring under the MCIA. He was instead acting pursuant to the common law concept of bias, in particular, the personal-interest rule.
Because no pecuniary interest was involved, it cannot be said that the Deputy Mayor failed to comply with the MCIA. The more correct observation is that the MCIA did not apply.
3. Should I make an application to a judge?
Whether to make an application to a judge is a decision that the Municipal Act leaves to the Integrity Commissioner, based on what the Integrity Commissioner feels is appropriate.
If I commenced a Court application then I would bear the onus of proving that Deputy Mayor Meadow breached the MCIA.6 I have no evidence of a breach.
In my view, the Respondent’s disclosure was not subject to the MCIA. I will not commence a Court application in which I argue the opposite.
I also note the costs of a Court application would be borne by the Township.
I do not consider it appropriate for me to apply to a judge for a determination as to whether Deputy Mayor Bob Meadows has contravened the MCIA.
Decision
- I will not apply to a judge under sections 5, 5.1 and 5.2 of the MCIA for a determination as to whether Deputy Mayor Bob Meadows contravened the MCIA during and following the July 10, 2019, closed session of Council.
Publication
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 2.
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
February 18, 2020
Footnotes
- I assigned the Application file number MCIA-2019-01.
- Tuchenhagen v. Mondoux, 2011 ONSC 5398 (Div.Ct.), at para. 31.
- Wilson (Re), 2017 ONMIC 13, at para. 7.
- Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 S.C.R. 1170 at 1196. See also: Hon. J. Douglas Cunningham, “Ruling on Conflict of Interest” (July 8, 2010), pp. 6-9, Appendix J, Report of the Mississauga Judicial Inquiry: Updating the Ethical Infrastructure (2011), at 377-380.
- Hutterian Brethren Church of Starland v. Starland (Municipal District), 1993 ABCA 76, at para. 36, citing Griffith & Street’s Principles of Administrative Law, 4th ed. (1967), at 156-157.
- Gammie v.Turner, 2013 ONSC 4563, at para. 25.