Stevens v. Leahy and Yamada, 2021 ONMIC 37

Citation: Stevens v. Leahy and Yamada, 2021 ONMIC 37 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)

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 remedy should be recommended to Council?. 6 Recommendation.. 7 Content 7 Appendix: Excepts from Code. 7

The Complaint

1Mr. Ron Stevens (Complainant) alleges that Councillor Chris Leahy (first Respondent) contravened the Council Code of Conduct¹ during the October 4 meeting of Town Council, and that Councillor Steve Yamada (second Respondent) contravened the Code in connection with Councillor Leahy’s comment.

2I assigned File No. 2021-05-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 Forbes v. Leahy,³ and Mulcahy v. Leahy and Mitchell.⁴

Summary

4The Complaint does not disclose any specific allegations against Councillor Yamada that would justify an inquiry, so the inquiry concerning Councillor Yamada is discontinued under section 15.1 of the Code.

5Councillor Leahy agrees that he contravened the Code of Conduct. The only issue, therefore, is what I should recommend to Council.

6Very clear judicial precedent confirms that I lack jurisdiction to recommend that Councillor Leahy be removed from the position of Deputy Mayor. Removal from the position of Deputy Mayor is not a penalty that can be imposed for contravening the Code of Conduct.

7Taking into account the submissions of Mr. Stevens and of Councillor Leahy, and for the reasons set out in at paragraphs 101 to 112 of Mulcahy v. Leahy and Mitchell, I recommend that Council issue a reprimand.

Background

8Prior to filing this Complaint, Mr. Stevens communicated with two Council Members, including the Mayor, to express his displeasure with what Mr. Stevens felt was a disgraceful comment by Councillor Leahy. Mr. Stevens felt that Councillor Leahy should be removed from the position of Deputy Mayor.

9The rotation of the office of Deputy Mayor is established by section 2.3.1 of the Procedure By-law, By-law # 7462-18. The section provides that each Regional Councillor (described as every Member, excluding the Mayor, who was elected at-large within the Town) serves one year as Deputy Mayor:

Every Member of the Council elected by general vote, with the exception of the Mayor, shall be the Deputy Mayor for one calendar year during the Council term with the Member receiving the fewest votes serving the first full calendar year of the term and the Member receiving the most votes serving for the remainder for the first year of the Council term (November 15th to December 31st) and the final year of the Council Term (January 1st to November 14th).

10In the course of his communications with the Town, Mr. Stevens was given information on how to file a Code of Conduct Complaint with the Integrity Commissioner. He did so on October 7.

11The Complainant relies on sections 4, 5, 6, and 12 of the Council Code of Conduct. These sections of the Code are reproduced in the Appendix.

12Additional background to this Complaint appears in the report in Mulcahy v. Leahy and Mitchell, at paragraphs 11 to 28.

Process Followed

13In 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).

14In 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.

15I received the Complaint form on October 7. The Complaint states that, in an open Council meeting, Councillor Leahy used language that publicly degraded and embarrassed Councillor Mulcahy. As originally filed, the Complaint did not state which sections of the Code were contravened. The original Complaint named both Councillor Leahy and Councillor Yamada, but did not allege any conduct of Councillor Yamada that contravened the Code. Finally, the original Complaint referred to news articles and an email from the Mayor as sources of information on which the Complainant relies, but did not include those documents.

16On October 11, I issued a Notice of Inquiry and sent it to all three parties. The Notice included a copy of the Complaint.

17In the Notice, I informed that parties that in order for the inquiry to move to the next step, I was asking the Complainant to provide specifics of the Complaint. In particular, I asked for: the news stories and email that were mentioned in the original Complaint; the section(s) of the Council Code of Conduct that Councillor Leahy is alleged to have contravened; details of the conduct of Councillor Yamada that is alleged to have contravened the Code; and the section(s) of the Council Code of Conduct that Councillor Yamada is alleged to have contravened.

18On October 12, the Complainant sent links to the news stories on which he relies, copies of email exchanges with the Mayor, a Councillor, and the Clerk, and a short statement indicating that he relies on sections 4, 5, 6, and 12 of the Code. The email exchange with the Mayor related to the position of Deputy Mayor. (The Mayor explained to the Complainant that the position was filled in rotation as provided in the Procedure By-law.) The email exchange with the Clerk related to the Procedure By-law as well as the process for requesting an Integrity Commissioner inquiry. The email exchange with the Councillor involved expressions of concern about Councillor Leahy’s words.

19Other than links to news stories, some of which mentioned Councillor Yamada, the Complainant has not made any allegations about Councillor Yamada. In the absence of specific allegations (indeed, the absence of any allegations) against Councillor Yamada, there is nothing to justify an inquiry into his conduct. The inquiry concerning Councillor Yamada is discontinued under section 15.1 of the Code.

20In relation to Councillor Leahy, since both parties agree he contravened the Code, I have proceeded to consider the appropriate recommendation to make to Council.

21In 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

22The Complainant relies on sections 4, 5, 6, and 12 of the Council Code of Conduct.

23Sections 5 and 6 of the Code apply to relations between Council Members and staff members, not relations among Council Members. For this reason, those sections are not relevant to the Complaint against Councillor Leahy (or, for that matter, the Complaint against Councillor Yamada).

24Section 12 covers compliance with the Code and the filing of Complaints. It is relevant to how this inquiry is conducted and what this report finds and recommends, but it is not a section that a Council Member can be found to have contravened.

25The Complainant’s concern falls under and section 4 (Conduct Respecting Others).

26While the Complaint form contains minimal information, the accompanying materials (in particularly, the emails) clearly set out the Complainant’s position.

27The Complainant feels that Councillor Leahy’s comment was shameful and disgraceful. He believes that Council must send a strong message that the behaviour was unacceptable. He also feels that Councillor Leahy should be removed from the position of Deputy Mayor. He says people elect Council Members to represent them and people do not want Councillor Leahy speaking for them in the position of Deputy Mayor.

28According to the Complainant, something must be done about Councillor Leahy’s comment. Disciplinary action is warranted. Failure to discipline means that the conduct is condoned and will happen again.

Respondent’s Position

29Councillor Leahy acknowledges that he contravened the Code.

30He explains that the comment was inadvertent as he thought he was on mute. He states, however, that the comment was inappropriate.

31Councillor 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.

32He 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.

33Councillor 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

34I rely on the findings of fact in the report Mulcahy v. Leahy and Mitchell, and I apply them here.

Issues and Analysis

35I have considered the following issues:

A. Did Councillor Leahy contravene the Code? B. Can I recommend removal from the office of Deputy Mayor? C. What action should be recommended to Council?

A. Did Councillor Leahy contravene the Code?

36This issue is not in dispute. Councillor Leahy acknowledges that he contravened section 4.1 of the Code of Conduct.

37Council 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.

38I 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.

39No. As Integrity Commissioner, I do not have authority to recommend that Councillor Leahy be removed as Deputy Mayor. I also do not have authority to recommend that the Procedure By-law be amended to achieve the same result.

40According to subsection 223.4(5) the Municipal Act, if a Council Member contravenes the Code of Conduct, two penalties are available: a reprimand, and a suspension of compensation of up to 90 days.

41According to the Divisional Court in Magder v. Ford,⁵ Altmann v. Whitchurch-Stouffville (Town),⁶ and Dhillon v. Brampton (City),⁷ those are the only two penalties available to address a breach of the Code of Conduct. A Council can take non-punitive and remedial action, such as requesting an apology or asking someone to return Town property being used improperly, but if the objective is to penalize, then the only options are a reprimand and a suspension of pay.

42The Divisional Court has also stressed that a measure cannot be justified as remedial when it is actually used for a punitive purpose. For example, if the purpose of a measure is to send a message denouncing the contravention that occurred, or to deter future contravention, then the measure is punitive and (unless it is a reprimand or a suspension of up to 90 days’ compensation) it lies outside of a Council’s authority.⁸

43If taking an action lies outside of Council’s authority, then recommending that action would lie outside an Integrity Commissioner’s jurisdiction. For this reason, I am not permitted to recommend that the Procedure By-law be amended in order to penalize Councillor Leahy by removing him from the office of Deputy Mayor.

C. What action should be recommended to Council?

44As I explain in Mulcahy v. Leahy and Mitchell, at paragraph 104, the purposes of penalties for contraventions of municipal codes of conduct are specific deterrence (to promote the individual’s compliance), general deterrence (sending a message to promote everyone’s compliance), rehabilitation (based on factors specific to the individual), and maintaining public confidence.

45The submissions made by Mr. Stevens, the Complainant, echo these purposes. He argues that, without a strong penalty, the conduct will be condoned and happen again; this is an argument based on general deterrence. His argument about the feelings of the people who elect Council Members to represent them is based on the importance of maintaining public confidence in the Town and its institutions.

46I have considered the comments of Mr. Stevens and of Councillor Leahy. My reasoning is set out in more detail in Mulcahy v. Leahy and Mitchell, at paragraphs 101 to 112.

47I conclude that Town Council should reprimand the body-shaming that occurred on October 4.

Recommendation

48Councillor Leahy’s body-shaming comment was, by his own acknowledgement, contrary to the Code of Conduct. I recommend that Council issue a reprimand.

Content

49Subsection 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

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.

5 Conduct Respecting Staff

5.1 Under the direction of the CAO and Senior Management Team, and in accordance with the decisions of Council, Employees are required to serve the municipal corporation as a whole.

5.2 Further to the Council-Staff Relations Policy, every Member shall be respectful of the role of Employees to provide advice based on political neutrality and objectivity and without undue influence from any Member. Accordingly, no Member shall injure or impugn the professional or ethical reputation of any Employee. Every Member shall show respect for Employees and for their professional capacities and responsibilities.

5.3 No Member shall compel any Employee to engage in partisan political activities, or subject any Employee to threat or discrimination for refusing to engage in such activity.

5.4 No Member shall use or attempt to further his or her authority or influence by intimidating, threatening, coercing, commanding or influencing improperly any Employee or interfering with that person’s duties, including the duty to disclose improper activity.

6 Council / Staff Working Relationships

6.1 Members are elected officials and representatives of their constituents. Employees are ultimately accountable to the Chief Administrative Officer and are responsible for implementing the decisions of Council, and ensuring the efficient and effective operation of municipal services.

6.2 Members and Employees will work cooperatively based on shared values of honesty, trust, mutual respect, and leadership for continuous improvement based on the Council-Staff Relations Policy.

12 Compliance

12.1 All Members shall be aware of and comply with this Code.

12.2 Members are accountable to the public through the election process. Members may become disqualified from holding Office through contravention or non-compliance with various laws, including the Municipal Act, 2001, Municipal Conflict of Interest Act and Municipal Elections Act, 1996. In addition to any other consequence imposed by law, Members found to have breached this Code may be subject to discipline or corrective action including those permitted by the Municipal Act, 2001.

12.3 Any individual, including members of the public, Town employees and Members who have reasonable grounds to believe that a Member has breached a provision of the Code may proceed with a Complaint. Complaints must be submitted within six (6) weeks of the matter becoming known to the individual and no more than six (6) months after the alleged violation occurring. The Integrity Commissioner shall be responsible for ensuring compliance with these deadlines, and shall take no action on a complaint received beyond these deadlines.

12.4 A Complainant does not have to pursue the informal complaint process set out in the following section prior to pursuing the formal complaint process.

Footnotes

By-law # 7245-17, as amended.
Processed as Integrity Commissioner File No. 2021-03-CC. Reported as 2021 ONMIC 33.
Processed as Integrity Commissioner File No. 2021-04-CC. Reported as 2021 ONMIC 36.
Processed as Integrity Commissioner File No. 2021-06-CC. Reported as 2021 ONMIC 38.
2013 ONSC 263, at paras. 66-70.
ONSC 5306, at paras. 45-46.
2021 ONSC 4165.
Magder v. Ford, note 5, at para. 68.