Township of East Garafraxa INTEGRITY COMMISSIONER, Guy Giorno

Citation: Jacobs v. Gardhouse, 2021 ONMIC 1 Date: January 1, 2021

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.

http://calendar.eastgarafraxa.ca/council/Detail/2021-01-26-1400-Special-Electronic-Council-Meeting/825ea778-f7d0-4a86-889e-acbb0130996d (see Special Electronic Council Meeting Minutes, January 12, 2021, page 8 of 9)

TABLE OF CONTENTS

Complaint and Inquiry. 3

Summary. 3

Background. 3

Positions of the Parties. 6

Process Followed. 7

Findings of Fact 9

Issues and Analysis. 9

A. Does Mayor Gardhouse have a personal interest in the subject property?. 10

B. Does section 3.1 of the Code of Conduct apply to this complaint?. 10

C. Did the Mayor breach section 12.1 of the Code?. 11

Recommendation.. 13

Content 13

Complaint and Inquiry

[1]. Mr. Andrew Jacobs (Complainant) alleges that Mayor Guy Gardhouse (Respondent) contravened sections 3.1 and 12.1. of By-Law 14-2016, the Code of Conduct for Members of Council, Local Boards and Committees (the Code), in dealing with a property standards complaint of Mr. Jacobs.

[2]. The inquiry was restricted to the allegation under section 12.1 of the Code. As explained below, section 3.1 of the Code does not support a complaint these circumstances.

Summary

[3]. I find that Mayor Gardhouse did not contravene the Code of Conduct.

[4]. The Complainant’s submissions do not establish that the Mayor failed to encourage public respect for the Township and its by-laws. On the contrary, the Mayor made genuine efforts to understand the Complainant’s concerns and explain how Council considered those concerns.

5. In Canada, a fundamental principle is that law enforcement must be independent of political direction and free from political interference. Individual elected officials must not direct by-law officers to investigate specific matters. The Mayor respected this principle, and acted properly, when he declined to give personal direction to a by-law officer. His action in this regard was compliant with, not contrary to, the Code.

Background

[6]. On February 24, 2020, Mr. Jacobs asked the Township to look into his concerns about the use of a neighbouring property. The request came in the form of a letter that read as follows:¹

February 24, 2020

To Property Standards and By-law Enforcement:

To whom it may concern:

As an owner of the property at [address omitted] I have concerns with the activities at [address omitted] which is a less than 7-acre rural residential property that borders my property on the east, south, and half of the west property line.

I am concerned with the number of animals that are housed on the property. As of December 28, 2019, there were observed four mature bovine, four mature sheep, and three mature horses. I would like to know how many are allowed.

My concern is largely based on the accumulation of the manure on the property, the location of the manure storage area, and the run-off of the effluent from the manure onto my property, as the manure is located less than 12 feet from the south property line and spring is coming. Do they have a manure management plan in place?

As you can see from the dated pictures, the manure is accumulating. All pictures supplied were taken from the south property line of [address omitted].

I would appreciate if these items could be addressed.

Thank you

[7]. As Integrity Commissioner, I have no jurisdiction over property standards and by-law enforcement. How the neighbouring property is zoned or being used is not an issue in this inquiry. The neighbouring property owners are not parties to the inquiry, nor should they be. The only issue in this proceeding is whether Mayor Gardhouse contravened the Code of Conduct. Consequently, I am omitting from this report unnecessary details about the neighbouring property, its use, its zoning, and its ownership.

[8]. The Complainant’s allegations are based largely on his correspondence with the Mayor and the Township’s staff. The following is a summary of the relevant correspondence.

[9]. On May 12, Mr. Jacobs emailed the Township and asked for an update on whether the Township had addressed his February 24 concerns about the subject property.

[10]. On May 20, the CAO/Clerk-Treasurer informed Mr. Jacobs that the matter was discussed in closed session at the February 25 Council meeting. She stated that Council discussed the matter but that staff did not receive instruction on further action with respect to the subject property.

[11]. Mr. Jacobs replied on the same day, restating the questions in his February 24 letter and asking why he had not been informed that the issue had already been discussed at Council.

[12]. The CAO/Clerk-Treasurer reiterated that the matter was discussed in closed session, which is, by its very nature, closed to the public. She nevertheless offered to receive a written complaint with reasons and to place it on the agenda of the next Council meeting. She also encouraged the Complainant to direct concerns regarding manure and the number of animals to the Ministry of Agriculture, Food and Rural Affairs, commonly known as OMAFRA..

[13]. Mr. Jacobs thanked the CAO/Clerk-Treasurer for the suggestion to contact OMAFRA, and indicated that he would do so. He also expressed scepticism about whether anybody from the Township had actually looked into his concerns.

[14]. On May 22, Mr. Jacobs wrote to inform the Mayor that details of concerns about use of the subject property had been given to the Township in February. Mr. Jacobs felt that the matter “was not handled correctly” and stated that a by-law inspector ought to have been dispatched to the property.

[15]. The Mayor replied the next day, May 23, offered an apology for the delay, and explained that the file was delayed in part due to staff transition to remote work during the COVID-19 pandemic. The Mayor noted that Council had started to meet electronically and was adapting to the new meeting format, but personally assured the Mr. Jacobs that he had the attention of the Township and that Council would be discussing the issue at a meeting in the coming week. The Mayor explained that the discussion would occur in closed session because it was a legal matter related to the property of an identifiable individual.

[16]. On May 29, Mr. Jacob received from the Township a letter that set out the staff’s interpretation of the permitted use of the subject property under the Township’s Zoning By-Law, 60-2004. The letter also informed Mr. Jacobs that Council had discussed the matter in closed session on May 26, and that Council “has again determined that there is no further action required with respect to this matter.” It concluded by encouraging Mr. Jacobs to contact OMAFRA, or the Ministry of Environment, Conservation and Parks, if he had further concerns about manure or the number of animals on the property.

[17]. That same day, Mr. Jacobs emailed the Mayor, remarking it was “interesting that [the CAO/Clerk-Treasurer] ignores the acreage requirement, yet obviously knows the size of the barn and the content of the manure’s solid matter without a site visit.”

[18]. Mr. Jacobs stated that he was disappointed with how his concerns had been handled, reiterated that his questions about the number of animals permitted on the property had not been answered, and asked for the Integrity Commissioner’s contact information.

[19]. On May 31, the Mayor replied to Mr. Jacobs, by email, attempting to address the Complainant’s questions. The email set out:

• the specific zoning of the property

• the Mayor’s understanding of the use of the property pursuant to that zoning

• an explanation of OMAFRA’s minimum distance separation formula

• the Mayor’s understanding of the number of animals permitted under the minimum distance separation formula

• contact information for OMAFRA

• the distance of the property from the regulatory limits of the Grand River Conservation Authority

• the Mayor’s observations about the manure “from the road, GPS mapping and the cemetery”

• contact information for the Integrity Commissioner

[20]. On June 1, Mr. Jacobs and the Mayor exchanged emails. (Mr. Jacobs emailed, the Mayor replied, and Mr. Jacobs emailed again.) Mr. Jacobs stated that Council and the Township staff should be more transparent about when and how they make a decision. He claimed that the manure had been moved from part of the property line. He also questioned how the Mayor could have seen, from public land or the cemetery, the portion of the property where the manure was located.

[21]. Between June 14 and June 16, Mr. Jacobs and the Mayor exchanged further emails, this time related to the Complainant’s interpretation of an acceptable use of the subject property.

[22]. On June 14, Mr. Jacobs insinuated that the Mayor had an undisclosed connection to the property: “[Y]ou and [the CAO/Clerk-Treasurer] seem to know more about the property than you should, to be advising council on how to make a decision.”

[23]. On June 15, the Respondent wrote back to Mr. Jacobs and attached the Zoning By-Law. The Mayor cited the specific applicable section of the by-law and directed the Complainant to the specific page on which that section could be found. He also gave Mr. Jacobs a rationale that included Mayor’s own personal interpretation of the by-law in relation to the use of the property. Mr. Jacob replied the next day with his reasons for disagreeing with the Mayor’s interpretation of the by-law.

[24]. On July 23, Mr. Jacobs received a letter from the Township informing him that Council had discussed the matter in closed session on July 21, and “has again concluded that the activities occurring on the subject property do not warrant further action by the Township.”

Positions of the Parties

[25]. The Complainant’s principal concern, repeated five times in his original complaint, is that a by-law officer was not sent to the property. He appears to believe that, because a by-law officer was not dispatched, the Mayor is in contravention of the Code.

[26]. Mr. Jacobs also appears to be frustrated by Council’s closed session discussions about the matter, and by the Township’s initial delay in communicating with him.

[27]. Although he never makes a specific, written allegation, Mr. Jacobs clearly implies − on numerous occasions, both in his correspondence to the Mayor and Township, and in his submissions in this inquiry − that the Mayor may have an undisclosed personal interest in the property. The initial complaint asks “why so much time has been spent on this issue” and questions the underlying motives of the Mayor and Township staff.

[28]. Mr. Jacobs also asserts (and has submitted extensive material and argument to support the position) that the number of animals per hectare exceeds what is permitted and that the use of the property does not conform to the Zoning By-Law. He maintains that a by-law officer should be dispatched to investigate.

[29]. The Mayor’s position is that he took the Complainant’s concerns seriously and took appropriate action, consistent with Township policy and applicable laws.

[30]. The Mayor notes that he is only one member of Council, and may not give direction to the Township staff. Only Council as a whole may direct the staff. The Mayor observes that his personal view or position on any matter may or may not differ from that of Council, but that his personal view is irrelevant.

[31]. The Mayor reiterates that Township policy is to deal in closed session with complaints that may have legal ramifications for identifiable individuals. This limits the Mayor’s ability to discuss the specifics of Council deliberations with members of the public, including with Mr. Jacobs.

[32]. The Mayor also makes submissions concerning the zoning of the subject property, his interpretation of the by-law, and the roles and responsibilities for other authorities, including OMAFRA and the Grand River Conservation Authority. He provides an explanation of how he arrived at his interpretation of the Zoning By-Law, an interpretation with which Mr. Jacobs disagrees.

[33]. The Mayor states that he has no personal interest in the subject property, beyond the interest sparked by the correspondence of Mr. Jacobs. The Mayor notes that, for personal reasons, he visits the neighbouring cemetery, and has viewed the subject property on a consistent basis throughout 2020. He acknowledges that these views did reveal the entirety of use of the property, but states that they nevertheless provided information.

[34]. The Mayor stresses that, in order to address the Complainant’s concerns seriously, the Township staff placed the issue on the agendas of two additional Council meetings (three meetings in total). Each time, Council as a whole discussed the matter in closed session and no resulting direction was provided to the staff.

Process Followed

[35]. In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint and the Council Member responding to the Complaint. This process is based on the Code of Conduct Complaint Protocol that was adopted by Council.

[36]. An individual is able, by filing a code of conduct complaint, to trigger an inquiry that is then conducted at municipal expense. In most municipalities, including East Garafraxa, the entire complaint-inquiry process is completed at no cost to the individual complainant.

[37]. I am mindful of the fact that the financial impact of code of conduct complaints and integrity commissioner investigations falls entirely on the municipal tax base. Integrity commissioners and codes of conduct have been mandated by the Province without any corresponding provincial funding.

[38]. In this context, I conduct a full and fair process that at the same time is efficient and reasonable taking into account the circumstances of each case.

39. The complaint was received September 8. It required clarification, so I arranged a telephone call with Mr. Jacobs. We spoke September 15.

[40]. During the phone call, Mr. Jacobs expressed the belief that an undisclosed interest of the Mayor, in the subject property, was responsible for what was happening (not happening) to address his concerns.

[41]. The same day, Mr. Jacobs emailed my office a zip folder containing numerous emails related to the property standards issue. These required time to review.

[42]. The date on which this additional material was received, that is, the date of clarification, September 15, is the official complaint date.

[43]. On September 25, I issued a Notice of Inquiry. The Notice stated that the inquiry would consider the allegation that Mayor Gardhouse had contravened section 12.1 of the Code. It explained that I would not inquire into the allegation under section 3.1, and that I lacked jurisdiction over the portion of the complaint related to the CAO/Clerk-Treasurer.

[44]. The Notice of Inquiry also stated, in bold: “Processing times and inquiry timing are delayed during the COVID-19 pandemic. Accommodation will be made for parties unable to meet deadlines. In turn, I ask the parties to be patient with each other and with the process during this extraordinary situation.”

[45]. Mayor Gardhouse responded, October 5. Given COVID-19 delays, the Response was not shared with Mr. Jacobs until November 5. He replied immediately, November 6.

[46]. Both parties provided a large volume of correspondence and documents, which I reviewed. Mr. Jacobs furnished all of his correspondence with the Township and with the Mayor regarding the subject property. The Mayor also provided his correspondence with Mr. Jacobs. Some of the material provided by Mr. Jacobs and the Mayor overlaps.

[47]. It became clear that I was able to complete the inquiry based on the parties’ submissions and the extensive documentary evidence.

[48]. The inquiry process was evenly balanced and procedurally fair. Each party had at least two opportunities to provide written submissions.

[49]. This Report does not refer to every letter, email, and document, but I have reviewed and taken into account all the documentary evidence. I have also carefully considered all the submissions of the parties.

Findings of Fact

[50]. Findings of fact are based on the civil standard of the balance of probabilities.

[51]. Most of the relevant findings of fact are set out in the Background section, above. The remainder appear below.

[52]. I find as a fact that there is no basis for the innuendo of Mr. Jacobs that Mayor Gardhouse has a personal interest in the subject property.

[53]. I find as a fact that Council considered the concerns of Mr. Jacobs during closed session on three separate occasions in 2020: February 25, May 26, and July 21.

[54]. I find as a fact that Mr. Jacobs wants a by-law officer to investigate what he believes to be an ongoing contravention of the Township’s Zoning By-Law.

[55]. I find as a fact that Mr. Jacobs sent the Township, including the Mayor, numerous emails outlining his concerns and demanding status updates, only to disagree with and to dispute the answers he then received.

Issues and Analysis

[56]. As I have explained, it is not for me to interpret the Zoning By-Law or to determine whether the use of the subject property complies. That is not the role of the Integrity Commissioner.

[57]. I have considered the following issues:

A. Does Mayor Gardhouse have a personal interest in the subject property?

B. Does section 3.1 of the Code of Conduct apply to this complaint?

C. Did the Mayor contravene section 12.1 of the Code of Conduct?

A. Does Mayor Gardhouse have a personal interest in the subject property?

[58]. He has none whatsoever.

[59]. I have launched this inquiry, at the municipality’s expense, because Mr. Jacobs raises serious concerns about decision making in the Township.

[60]. Specifically, his complaint suggests that “underlying motives” and “misinformation” are behind decisions not to address the property standards issue as Mr. Jacobs would like. He makes an innuendo that the Mayor has an undisclosed interest in the subject property. By telephone, he confirmed his meaning.

[61]. Mr. Jacobs provides absolutely no basis for implying that the Mayor has an undisclosed interest. The only basis seems to be his frustration at perceived inaction on the property standards issue, which leads Mr. Jacobs to suspect the influence of ulterior motives and misinformation.

[62]. Having launched the inquiry because of the very serious suggestion made by Mr. Jacobs, I must state clearly that I see no evidence that the Mayor has any interest in the subject property. I accept the Mayor’s statement that his only interest in the property is the interest triggered by the correspondence from Mr. Jacobs.

B. Does section 3.1 of the Code of Conduct apply to this complaint?

[63]. No.

[64]. The Complaint suggests that the alleged inaction on the property standards issue violates section 3.1 of the Code, which states, in part, that, “All members shall serve their constituents in a conscientious and diligent manner.”

[65]. The sentence I have quoted is a statement of principle, and not the basis for a Code complaint. Consequently, in the Notice of Inquiry, I informed both parties that I would not inquire into the allegation that the Mayor breached section 3.1 of the Code.

[66]. The Code is part of a by-law. Ordinary principles of statutory interpretation apply.

[67]. Statements of principle do not create obligations, though they may be used to interpret obligations created elsewhere in the law. I find that the statement of principle in section 3.1 provides interpretive direction only, and it does not create rules or obligations on Council Members that can be the subject of a complaint: Re Durham Region (Council Member), 2018 ONMIC 3, at paras 30-37; Re Partner, 2018 ONMIC 16, at paras. 30-33.

[68]. While that should be sufficient to dispose of the section 3.1 issue, I note that the Complainant’s submissions do not explain how the Mayor has failed to serve constituents in a conscientious and diligent manner, or how the Mayor has used the influence of office for an improper purpose. Mr. Jacobs expresses general dissatisfaction with the way the Township has handled his concerns, but this dissatisfaction appears largely to be based on the fact that he does not agree with the staff’s interpretation of the relevant by-law.

C. Did the Mayor breach section 12.1 of the Code?

[69]. Mr. Jacobs alleges that the Mayor contravened section 12.1 of the Code. That section and the heading above it read as follows:

12. Encouragement and Respect for Township

12.1 Members shall encourage public respect for the Township and its by-laws.

[70]. A Code of Conduct creates binding rules for Council Members. Council Members are subject to penalties if they contravene the rules in the Code; it necessarily follows that the rules must be clear, certain and unambiguous. Council Members must be able to understand clearly the conduct that is required. In this respect I refer to the observations of Integrity Commissioner Swayze in [Hayes v. Miles] City of Brampton Report L05 IN (May 12, 2015):

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]

[71]. While I do not agree that being busy is relevant to interpretation of the Code, I accept and adopt Integrity Commissioner Swayze’s comments about the need for clarity, certainty and lack of ambiguity in the rules.

[72]. Section 12.1 is general and vague. Fortunately, it is unnecessary to decide how section 12.1 might apply in all cases. It is only necessary to determine whether the Mayor breached section 12.1 in this case.

[73]. Mr. Jacobs believes that a by-law officer should have been dispatched to investigate the subject property.

[74]. I am satisfied that this was not the Mayor’s responsibility. Indeed, it would have been inappropriate for the Mayor personally to intervene in by-law enforcement.

[75]. In Canada, a fundamental legal principle is that the independence of law enforcement must be free from political inference. The legal principles are summarized in Greatrix v Williams, 2018 ONMIC 6, and Re Partner, 2018 ONMIC 16.

[76]. Section 15 of the Police Services Act provides that a municipal council may appoint persons to enforce the by-laws of the municipality, and that municipal law enforcement officers are peace officers for the purpose of enforcing municipal by-laws.² While in the discharge of their duties, they are provincial offences officers.³

[77]. The jobs of law enforcement officers involve discretion. While law enforcement officers have a duty to enforce the law, they also have a duty to exercise their discretion, including the discretion to write or not to write a ticket, or to pursue or not to continue an investigation.⁴ Police discretion (or, in this case, the discretion of municipal by-law officers) is not absolute,⁵ but nonetheless is an essential element of the justice system.⁶

[78]. The independence of law enforcement officers underpins the rule of law.⁷ Independence means that a law enforcement officer cannot be subject to political direction in relation to an investigation.⁸

[79]. Mr. Jacobs wants a by-law officer to investigate the use of the subject property, and he faults the Mayor (among others) for not making that happen. I disagree that the Mayor is personally responsible for the perceived inaction.

[80]. First, as I have explained, individual elected officials must not direct by-law officers to investigate specific matters. The Mayor respected this principle, and acted properly, when he declined to give personal direction to a by-law officer. His action in this regard was compliant with, not contrary to, the Code.

[81]. Second, as the Mayor has explained, only Council as a whole, and not any individual Council Member, may give direction to the Township staff.

[82]. For these reasons, I find no contravention of section 12.1.

[83]. The Complainant’s concern that Council and the Township staff should be more transparent about how and when and Council makes decisions lies outside my jurisdiction as Integrity Commissioner, except as specifically relates to the Mayor’s conduct. The record demonstrates that Mayor has been diligent and prompt in responding directly to Mr. Jacobs. The fact that Mr. Jacobs does not agree with the Mayor’s responses does not amount to a breach of the Code.

[84]. The Council decisions to consider the matter in closed session are not within my jurisdiction as Integrity Commissioner and do not put the Mayor in breach of section 12.1 or any other section of the Code. (Section 10 of the Township’s Procedural By-Law, and subsection 239(2) of the Municipal Act, provide for such decisions.)

Recommendation

[85]. As Mayor Gardhouse did not contravene the Code, I make no recommendation.

Content

[86]. Subsection 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

Township of East Garafraxa

January 1, 2021

Footnotes

1. 1In quoting from documents in a report, my practice is always to edit punctuation and capitalization for consistency and to correct immaterial typographical and textual errors.
2. 2Police Services Act, R.S.O. 1990, c. P.15, s.15.
3. 3Provincial Offences Act, R.S.O. 1990, c. P.33, subs. 1(1), definition “provincial offences officers,” clause (d).
4. 4R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 at para. 37.
5. 5Ibid., at para. 38.
6. 6Ibid., at paras. 51, 86.
7. 7R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 29.
8. 8Ibid., at para. 33