Forbes v. Leahy, 2021 ONMIC 36

TOWN OF WHITBY INTEGRITY COMMISSIONER, Guy Giorno

Citation: Forbes v. Leahy, 2021 ONMIC 36 Date: December 15, 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.

https://whitby.civicweb.net/Portal/MeetingInformation.aspx?Org=Cal&Id=2449 (see Resolution # 01-21 at pages 3-4 of January 10, 2022, Special Council Minutes)

TABLE OF CONTENTS

The Complaint 3 Summary. 3 Background. 3 Process Followed. 3 Position of the Parties. 5 Findings of Fact 6 Issues and Analysis. 6 A. Did Councillor Leahy contravene the Code?. 6 B. What action should be recommended to Council?. 6 Recommendation.. 7 Content 7 Appendix: Excerpts from Code. 7

The Complaint

1Mr. Patrick Forbes (Complainant) alleges that Councillor Chris Leahy (Respondent) contravened the Council Code of Conduct¹ during the October 4 meeting of Town Council.

2I assigned File No. 2021-04-CC to the Complaint. CC stands for Code of Conduct.

3This report is being released simultaneously with three other reports related to the same incident: Re Leahy,² Stevens v. Leahy and Yamada,³ and Mulcahy v. Leahy and Mitchell.⁴

Summary

4Councillor Leahy agrees that he contravened the Code of Conduct. The only issue, therefore, is what I should recommend to Council.

5For the reasons set out in Mulcahy v. Leahy and Mitchell, at paragraphs 101 to 112, I recommend that Council issue a reprimand.

Background

6The background to this Complaint appears in the report in Mulcahy v. Leahy and Mitchell, at paragraphs 11 to 28.

7The Complainant alleges that the Respondent contravened section 3 and section 4 of the Council Code of Conduct.

8Sections 3 and 4 of the Code are reproduced in the Appendix.

Process Followed

9In 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.

10In this case, the usual process has been truncated because Councillor Leahy acknowledges that he contravened the Code. It is, therefore, unnecessary to hear from both sides on whether a contravention occurred.

11I received the Complaint form, by email, on October 7. In the section of the form reserved for the particulars of the Complaint, the only words were, “Let’s see what Big Rhonda has to say.” The second page of the form – intended for “Additional Information” – was left blank.

12The Complaint is very brief, but the allegation is clear and understandable: namely, that “Let’s see what Big Rhonda has to say” contravenes sections 3 and 4 of the Code. The Complaint satisfies the necessary criteria: it alleges a specific contravention of the Code and contains sufficient information for Councillor Leahy to respond.

13On October 11, I issued a Notice of Inquiry and sent it to both parties. The Notice included a copy of the Complaint.

14In the Notice, I invited both parties to address three preliminary issues: First, should I inquire into alleged conduct that appears to be covered by the Rules of Procedure, could have been the subject of a point of order raised during the meeting, and could have been dealt with by the presiding officer (the Mayor) during the meeting?⁵ Second, should an Integrity Commissioner inquire into alleged harassment, abuse, or bullying when the complaint is brought by someone who was not the object of the alleged conduct?⁶ Third, does a single incident constitute harassment, abuse, or bullying?⁷

15The Complainant addressed the preliminary issues on October 12.

16The Respondent made submissions on October 22.

17Because the Respondent accepted that he had contravened the Code, I determined that the preliminary issues were moot. I proceeded to consider the appropriate recommendation to make to Council.

18In coming to the conclusions in this report, I have considered the submissions of both parties, as well as the perspective of Councillor Mulcahy and the impact on her. In addition, I have examined the documentary evidence provided, and the recordings of the October 4 (Regular Council) and October 18 (Committee of the Whole) meetings. I have also reviewed statements made in news media stories and on social media.

Position of the Parties

Complainant’s Position

19The Complaint simply alleges that the comment “Let’s see what Big Rhonda has to say” contravened sections 3 and 4 of the Code.

20In subsequent submissions, the Complainant describes Councillor Leahy’s words as misogynistic. He states that he personally witnessed Councillor Leahy making the comment during the October 4 Council meeting.

21The Complainant suggests that the Mayor should be investigated for failing to act when the comment was made. I did not interpret this comment as a formal complaint against the Mayor; in any event, the issue of the Mayor’s handling of the comment is addressed in a companion report, Mulcahy v. Leahy and Mitchell, at paragraph 93.

22The Complainant also notes that Councillor Mulcahy stated that the comment was (in the Complainant’s words), “just the latest in a series of public and private comments made by the Deputy Mayor.” This matter is considered in Mulcahy v. Leahy and Mitchell.

Respondent’s Position

23Councillor Leahy acknowledges that he contravened the Code.

24He explains that the comment was inadvertent as he thought he was on mute. He states, however, that the comment was inappropriate.

25Councillor Leahy states that he apologized several times: over the phone within 24 hours, in a televised Global News interview, in writing to all Council Members, and in-person at the October 18 meeting.

26He points out that October 18 was the first opportunity for him to apologize on the record and in the same forum in which the offensive comment was made. He also notes that Councillor Mulcahy said she accepted the October 18 apology.

27Councillor Leahy has taken the following additional steps: He completed a LinkedIn course on diversity and inclusion, and he accepted the CAO’s invitation to take Town-provided sensitivity training (available to all Members) and executive coaching, counselling, and conflict resolution services from Dr. J.P. Gedeon (also available to all Members).

Findings of Fact

28I rely on the findings of fact in the report Mulcahy v. Leahy and Mitchell, and I apply them here.

Issues and Analysis

A. Did Councillor Leahy contravene the Code?

29This issue is not in dispute. Councillor Leahy acknowledges that he contravened section 4.1 of the Code of Conduct.

30Council Leahy “accept[s] that what [he] did was wrong.” He describes his comment as “ill-advised, hurtful, and disrespectful of a respected colleague.” He recognizes that his words caused pain.

31I explain in Mulcahy v. Leahy and Mitchell that I disagree with the description “inadvertent comment.” “Inadvertent” means accidental or unintentional. This comment was not inadvertent. According to his own account, the inadvertence was Councillor Leahy’s failure to ensure his line was muted when he spoke. He meant to speak the insulting words; he did not mean for them to be broadcast or recorded. The distinction is important. This was not an inadvertent comment. It was an intentional comment, inadvertently broadcast.

B. What action should be recommended to Council?

32The reasons for my recommendation are set out in Mulcahy v. Leahy and Mitchell, 2021 ONMIC 38, at paragraphs 101 to 112. I conclude that Town Council should reprimand the body-shaming that occurred on October 4.

Recommendation

33Councillor Leahy’s body-shaming comment was, by his own acknowledgement, contrary to the Code of Conduct. I recommend that Council issue a reprimand.

Content

34Subsection 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 Whitby December 15, 2021

Appendix: Excerpts from Code

3 Conduct at Meetings

3.1 Every Member shall conduct himself or herself properly and in a civil manner at Council, Committee and other meetings and in accordance with the provisions of the Town’s Procedure By-Law, this Code and other applicable policies or laws.

4 Conduct Respecting Others

4.1 Every Member of Council has the duty and responsibility to treat members of the public, one another and staff appropriately and without abuse, bullying or intimidation, and to ensure that the municipal work environment is free from discrimination and harassment.

4.2 The Ontario Human Rights Code and the Occupational Health and Safety Act recognize the right to freedom from harassment. Under the Ontario Human Rights Code and the Town’s Respect in the Workplace Policy, all persons are to be treated with dignity and respect in the workplace in an environment free of abuse, discrimination and of personal and/or sexual harassment.

4.3 Harassment, whether it occurs inside or outside the workplace but is related to the work environment or activities of elected office, is considered to be harassment and is inappropriate behaviour for the purpose of this Code of Conduct.

4.4 Any complaints of abuse, bullying, intimidation or harassment will be investigated in accordance with the procedures set out in the Town’s Respect in the Workplace Policy and may be subject to an investigation under this Code.

Footnotes

1. 1By-law # 7245-17, as amended.
2. 2Processed as Integrity Commissioner File No. 2021-03-CC. Reported as 2021 ONMIC 33.
3. 3Processed as Integrity Commissioner File No. 2021-05-CC. Reported as 2021 ONMIC 37.
4. 4Processed as Integrity Commissioner File No. 2021-06-CC. Reported as 2021 ONMIC 38.
5. 5Some inquiry reports outline reasons why Integrity Commissioners should avoid inquiring into meeting conduct that falls squarely within the scope of a procedure by-law: for example, Gerrits and Little v. Currie, 2021 ONMIC 9, at paras. 35-49, and Dhillon v. Moore, 2018 ONMIC 15, paras. 73-83.
6. 6This question was considered in Chan v. Therrien, 2021 ONMIC 6, at paras. 91-96, and Miller v. Bath-Hadden, 2020 ONMIC 12, at paras. 65-70.
7. 7The Complaint is based on a single statement, “Let’s see what Big Rhonda has to say.” The Human Rights Code, subs. 10(1), defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” [emphasis added] The definition of workplace harassment in the Occupational Health and Safety Act, subs. 1(1), is essentially the same. The words “a course of” are usually considered to mean a pattern of behaviour, though a single, severe incident could constitute harassment. See the Supreme Court of Canada decision in Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39, at para. 73: “It is certainly difficult to see a course of conduct in a single incident.”