TOWN OF WHITBY Integrity COMMISSIONER, Guy Giorno

Citation: Mulcahy v. Leahy and Mitchell, 2021 ONMIC 38 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. 4

Process Followed. 11

Positions of the Parties. 12

Findings of Fact 16

Issues and Analysis. 17

A. Do I have jurisdiction to consider the allegations against Mayor Mitchell?. 17

B. Did Councillor Leahy contravene the Code?. 20

C. What action should be recommended to Council?. 20

Recommendation.. 23

Content 23

Appendix: Excerpts from Code. 24

The Complaint

1. Councillor Rhonda Mulcahy (Complainant), alleges that Council Chris Leahy and Mayor Don Mitchell (Respondents) have contravened the Council Code of Conduct.¹ On receiving her Complaint, October 12, I assigned it File No. 2021-06-CC. CC stands for Code of Conduct.

2. The principal allegation against Councillor Leahy, who is also the Deputy Mayor, is that he contravened the Code by making an offensive comment during the October 4 meeting of Town Council.

3. The allegations against the Mayor date back to 2019 and 2020.

4. In the case of both Respondents, the Complainant alleges a “consistent pattern” and “a history of bad behaviour.”

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

Summary

6. Councillor Leahy acknowledges that he contravened the Code. The only issue is what action I should recommend to Council in light of the acknowledged contravention. I recommend that Council reprimand him.

7. The specific allegations against Mayor Mitchell are more than six months old. The Code of Conduct states that I may not take action on a complaint unless it is submitted within six weeks of the matter becoming known to the complainant and no more than six months after the alleged violation occurring.

8. I find that the incidents referred to in the allegations against Mayor are discontinuous, and not part of the same alleged contravention as the alleged October 4 contravention, and, therefore, out of time.

9. The Complainant’s criticism that the Mayor did not respond appropriately to Councillor Leahy’s comment is timely but does not involve a contravention of the Code.

10. Consequently, I have terminated the inquiry concerning into the allegations against the Mayor, without needing to request his response. (I understand nonetheless that the Mayor has already publicly responded to certain allegations).

Background

11. During the October 4 online meeting of Town Council, Councillor Leahy and most other Council Members were participating remotely. The Mayor was present in the Council Chamber.

12. While Council was considering agenda item 7.4, Temporary Cricket Field and Future Cricket Amenities, Councillor Leahy made the comment that is the subject of this report. He spoke immediately after Councillor Newman concluded her remarks on the item and immediately before the Mayor recognized Councillor Mulcahy.

13. The following transcript⁵ presents Councillor Leahy’s comment, in context. Only the final words of Councillor Newman’s remarks and the opening words of Councillor Mulcahy’s remarks are shown:

Councillor Newman: [earlier remarks omitted] … I was delighted to meet the cricket players at Baycliffe, thanks to Councillor Shahid. I wish to thank MP Turnbull for his presence this evening and for the guidance to the Town in terms of the possibility of reaching out to apply for federal funding, and I hope and I’m sure that our staff will pursue any opportunities both at the federal and provincial level to support this sport and the creation of a permanent cricket field. Thank you.

Councillor Leahy: OK. Let’s see what Big Rhonda has to say.

Mayor Mitchell: Thank you, Councillor Newman. Councillor Mulcahy?

Councillor Mulcahy: Yes, thank you, Councillor Leahy; let’s see what I have to say. Thank you, Mayor Mitchell. I just wanted to reach out to all of the people that perhaps are listening tonight from the cricket community and congratulate them on growing a sport with such great enthusiasm over a short period of time. … [remarks continued]

14. Not all of Councillor Leahy’s words were clearly audible and his voice trailed off at the end of the sentence. Councillor Leahy does, however, acknowledge that he spoke the words, “Let’s see what Big Rhonda has to say.”⁶

15. On October 5, Councillor Leahy spoke to Councillor Mulcahy by telephone, and apologized.

16. Councillor Mulcahy was not satisfied that the apology was genuine or sufficient. She posted the following explanation on Facebook, the morning of October 6:

In a hot mic moment, a colleague’s comments exposed a nickname. It bears the question about what is being said with the mic is off?

Approximately 20 hours later when it became clear the comment was causing a stir, the private apology came in the form of “I hang around Steve (Yamada) too much” and “I am sorry I slipped, I’m usually better than that.” This is the apology now being referred to when asked if it happened. I thought it important you know.

This incident is not the first at Whitby Council. These actions are left to fester and are not resolved.

Words matter.⁷

17. (Councillor Leahy would later state that he learned through social media that his telephone apology was not accepted. Councillor Mulcahy’s position is that she informed him during their phone call. Whose recollection of the call is better is not material to the issues in this inquiry.)

18. Shortly before noon the same day, the Mayor sent the following email to all of Council:

Subject: Councillor Leahy’s comment about Councillor Mulcahy at Monday’s meeting

We are all aware now that Councillor Leahy made a personal and derogatory comment about Councillor Mulcahy during the meeting. I heard Councillor Leahy’s voice but could not make out what he said. I was not aware of a particular reaction from those in Council Chambers and no Member of Council rose on a matter of privilege – which would have been completely in order. Councillor Roy emailed me yesterday to object to that statement and to Councillor Yamada’s later comment which was clearly a reference to Councillor Shahid. I heard that comment – which was unhelpful and unnecessary – and I tried to express my frustration then that it had been made.

[The Executive Advisor to the Mayor] got the wording from the livestream and shared it with me. I spoke with Councillor Leahy about it. He told me he would call Councillor Mulcahy and apologize. I spoke later with Councillor Mulcahy and she was not satisfied with the apology.

I contacted the CAO and Clerk for their guidance. l was advised that Councillor Leahy’s comment is a Code of Conduct issue and a violation of procedure being unparliamentary language. If a formal complaint is made by Councillor Mulcahy, the Clerk and CAO can advise on the next steps.

This Council has never been a united Council but we have managed – fairly well – to remain a respectful Council. We have one more year in office and the last year is always the hardest for relations between Members as the election approaches. We all – and I include myself – need to do our very best to remain professional. I have never heard a resident comment positively on Members of Council bickering and trading criticisms and insults. Apart from the reality that we all lose politically when that happens – which should be the least concern – we also fail in our responsibility as the elected leadership of Whitby. We commit at every Council meeting to always being respectful of the responsibility of public office and to making wise decisions for the betterment of our Town. Exacerbating personal and political divisions undermines that commitment.

Restoring trust is hard but we have an obligation to our community to do the best we can.

Thank you.

19. Also on October 6, Councillor Leahy spoke to Global News Durham and apologized on television, saying, “My comment crossed the line.”⁸

20. In the same interview, he stated:

I accept that what I did was wrong, and I hope that in the fullness of time Councillor Mulcahy and other Council Members that feel we can’t work together accept my apology.⁹

21. The next day, Councillor Mulcahy, Councillor Leahy, Councillor Roy, and Mayor Mitchell appeared on camera in a follow-up Global News story.¹⁰ The Mayor condemned Councillor Leahy’s language, but also mentioned division on Council, an observation by the Mayor that would subsequently be included in Councillor Mulcahy’s Complaint.

22. The Mayor’s interview remarks were edited, and a slight shift of position in his video image shows that two separate clips were combined in the one news story. The ellipsis, below, indicates where one clip ended and the other began:¹¹

Name calling, especially body-shaming name calling, is just inappropriate. We all know that. It was a major, major lapse in judgment.

This didn’t come out of nowhere. This Council has been quite divided virtually from day one. There's a back story in a lot of this.

23. Mayor Mitchell was not the only Council Member who spoke to Global News about division on Council. In the same news story, Councillor Mulcahy was quoted as saying, “What happened on Monday night was an exposure of the root of the issue about why Whitby Council is divided.”

24. The same day, Councillor Leahy emailed all Council Members as follows:

Dear Members of Council,

Words matter. So do actions.

I wanted you to know that I took the time to offer Councillor Mulcahy a full apology over the phone within 24 hours of my remarks. I want to commit to all of you that I will be providing a full unreserved public apology at our next meeting Monday the 18th of October.

Council has been working hard, day in and day out, to improve the quality of life for all residents and I want this to continue. I don’t want my remarks to distract us from the hard work of serving the community we all love.

I see that Councillor Mulcahy has not accepted my apology over the phone. I want to make sure that I am doing everything possible to remedy the situation. In this spirit, I have filed a formal code of conduct complaint with the integrity commissioner to investigate this matter. I want to make sure that all the steps that I am taking are appropriate and exceed what is required by an independent third party. I want to make certain I am held accountable for my actions.

Finally, I want to apologize to you. My comments were ill-advised, hurtful, and disrespectful of a respected colleague, and the institution we all care about.

Please accept my apology.

25. At the October 18 Committee of the Whole meeting (the first regularly scheduled opportunity since October 4 for all Council Members to meet together), Councillor Leahy was recognized on a point of order and delivered the following remarks:¹²

I would like to rise on a point of order regarding item 1.c, improper use of language at the last Council meeting.

So, words matter. So do actions.

I want to take the time to offer Regional Councillor Mulcahy a full and unreserved apology for my comments made two weeks ago at Council.

I called in the next day to apologize personally; however, my inadvertent comments were made in a public forum. Councillor Mulcahy deserves an apology in the same venue. This is our first regularly scheduled Council meeting since that day.

Council has been working hard to improve all residents’ quality of life, day in and day out, and I want this to continue. I don’t want my remarks to distract us from the hard work of serving the community we all love so much.

I want to make sure that I am doing everything possible to remedy this situation. I soon found out that no one had filed a complaint with the Integrity Commissioner, so I filed a request with the Integrity Commissioner to investigate this matter. I want to make sure that all the steps I take are appropriate and exceed what is required by an independent third party. I want to make sure I am held accountable for my actions. However, justice not only has to be done, but it also has to be seen to be done. This can only happen if an independent third party investigates it.

Finally, I want to apologize to all members of Council, Town staff and the residents of Whitby – the people that we serve every day.

My comments were ill-advised, hurtful, and disrespectful of a respected colleague and the institution we all care about.

You trust us to represent you with grace and professionalism. I am sorry if my comment fell short of the high standard you come to expect. I hope my actions to remedy the pain I caused that day with my words will lead you to forgive me.

I hope you can accept my apology.

26. Councillor Mulcahy spoke next. The following is my transcription of her remarks:¹³

So I expected an apology tonight, and I’m really grateful to receive one. I’m not one to reject a proper apology. If done correctly it goes a long ways. Thank you, Deputy Mayor Leahy.

By way of note, I received some fun emails, because the hits just keep coming. One email had nothing but the words “Big Rhonda” in them. Thanks for that. Another decided to point out that I’m in politics, and I should have expected it, and if I can’t handle it I’m not strong. So, the irony on that one: anyone who puts their name on a ballot, races through 45,000 doorbells, and wins, is definitely strong. I’m not sitting here grasping my pearls and gasping. In fact, I’m the last person in the schoolyard the bully should call names and poke sticks at. Never doubt that it is much easier to stay quiet than it is to speak up in this situation. In fact, one must wonder if the people who send emails as such aren’t the weak ones.

Accepting an apology, however, does not mean accepting in a broader sense bad behaviour in a work environment. I know that many want this to move along and be put behind us. I would love nothing more to get on with the business of the Town and pretend this moment never happened, but what’s more important is that we examine what has taken place here, or we will find – we will in fact end out right back into the same place we’re in right now. I’ve a sign that says that doing the same thing over and over again and expecting a different result is the definition of insanity, and so it’s right to say that Whitby Council is insane, and if nothing changes we will repeat this somewhere down the road.

No one can terminate a Councillor. We can step down on our own, or as Council we can decide to withhold wages, but basically we take an oath as a Councillor and follow a Code of Conduct. Should we break that Code there is very little recourse despite any ruling by the Integrity Commissioner.

I want members of Council to consider this, however. If a member of any Town committee or staff had called someone a body-shaming name, what would the actions be to that? We need to be paying attention to how we handle this. If we let this go unaddressed, then what protection are we offering our staff from abuse? What message are we sending to our organization, to our community, to our youth?

I want to send a shout-out to the men and women at the Town and those in our community who reached out to me and have tuned in tonight, I’m sure, to hear this and are expecting action tonight. I have heard from many of you over the last couple of weeks and want to try to put into words what has become very clear to me. This body-shaming comment has set off some triggers. The triggers that were set off were far-reaching. So many women, I can’t even begin to count, have reached out with their stories, and their struggles with weight, with shame, with sexual assaults, with harassment, with abuse. It’s them I’ve cried over for the last couple of weeks, not me.

No retreat can fix this. It would be preposterous to expect me to go on a retreat at this point, especially when I have been asking for help with this, in public and private, multiple times since 2017. I had identified a problem and asked for sensitivity training. I would like to hear from Councillor Shahid tonight, specifically, if she ever received any help after my text sent describing her being cornered in a parking lot being screamed at by another Councillor. On October 4th of this year the whole community finally got a whiff of what myself and other members of this Council have been identifying with the Mayor, senior staff, and the Integrity Commissioner It is simply not true what is being said to the media that there have been no concerns previously.

I sat in on the Women in STEM conference last week at the University. It was insightful. They spoke at length about leadership as a verb rather than a position: where everyone should feel valued, trusted, and authentic. The qualities of a good leader: have an inward scope of humility, curiosity, and courage, and an outward scope of accountability, ownership, and allyship. These are traits of inclusive leadership behaviour. This is what’s lacking in Whitby. This is what the last two weeks have shown me.

I’ve been blamed for my own body-shaming name-calling. It has been suggested that a divide on Council is the reason for me taking this abuse, and that I and some of my colleagues have brought this on myself. It has been said publicly. So let’s look at it. When two other members of this Council and myself decided to host human trafficking and traffic safety seminars together in 2019, it was made clear to us to stop. When we didn’t immediately, I was assaulted. During a public event, while seated at a table, I received a shoulder massage and the words to the rest of the table were, “Stay away from this one. She’s trouble.” When I later confronted you, Mr. Mayor, in a room with the CAO and the head of HR, and my two colleagues on Council, your apology was, “I’m sorry. I thought you were stronger than that.”

It seems I have a way of pulling out epic apologies. Regardless, this has never been addressed properly. It festers. I know in your own way the text you sent me last night was to attempt to soften me a little tonight. I read it carefully. In case anyone hasn’t been paying attention, I consider words very carefully. Words do matter. So, in response to your text from last night, I will offer this. It doesn’t matter who you like in mine or my husband’s family; they aren’t likely to like you back should you run into them. Despite what you may think, given your request to keep this at Council only, I have not gone all over Brooklin smearing your name. Anyone that has reached out to you with concern over this knows us both and has intuitively laid the blame where it belongs. Being sorry it has ended out this way is not sorry for your action or inaction in leading us here, and I have deep and valid reservations in you trying to do your best moving forward. I do not believe that you understand the problem. I do not believe that someone who makes sexual innuendos about a female member of staff on their knees gets it, and before you punish said staff member, you need to remember that comment was made in a room full of senior staff and that information came from a source I will not reveal.

As for it being easy to get angry in politics, you are 100% correct; it is easy to get angry and, yes, it is easy to focus that anger on the people involved, more so than on the issue, so I will acknowledge that I am angry, and I will focus on the issue as you suggest. The issue is that there is a systemic and ingrained form of abuse in the municipality of Whitby that starts at the top. This has got to end.

To those of you who I know are listening, I want you to know that I hear you, and you can come to me. I will stand by you. I will not allow this to happen to anyone in our organization, no matter who has to be called out. Even if you think I am a friend to your aggressor, make no mistake. I will act. Call me.

To my colleagues on Council, I hope to hear from you all tonight in this meeting. I am grateful to Councillors Roy, Lee, and Shahid for their support. I’m also very disappointed in Councillors Newman and Drumm. Your silence is deafening in the message it sends. Got it, loud and clear. Councillors Leahy and Yamada, I actually don’t blame you as much as you think I do. I expected as much; you never fail to deliver. Thank you.

27. Councillors Shahid, Roy, Drumm, and Newman also spoke.

28. The last speaker on the subject was Mayor Mitchell, who summarized the discussion in the following words:¹⁴

Thank you. I certainly fully agree that that we need healing, and we need to work together and we have an obligation to all residents.¹⁵

Thank you, everyone. That was a lot of information, and advice, and concern, and I will certainly discuss all of this with the CAO, and we will try and work back with Council and find out how we can move forward to address what are clear and obvious wounds.

Process Followed

29. In 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).

30. The ordinary process involves the exchange of submissions among the parties.

31. In this case, the usual process was truncated, for two reasons. First, Councillor Leahy acknowledges that he contravened the Code. Second, the allegations against Mayor Mitchell are subject to the six-month and six-week limitation periods in section 12.3 of the Code.

32. Because of my conclusion on the six-month/six-week issue, the inquiry did not reach the stage where Mayor Mitchell was asked to respond to the substance of Councillor Mulcahy’s allegations against him.

33. Section 12.3 of the Code of Conduct provides, in part, as follows:

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.

34. Section 12.3 allows me to review the Complaint to determine whether it was 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.” Unless I find that the Complaint was submitted within the six-week and six-month deadlines, the Code is clear: I “shall take no action on it.”

35. I received the signed Complaint on October 12.

36. On October 16, I sent all parties a Notice of Inquiry. Attached to the Notice was the Complaint.

37. The Notice informed the parties that I would submit an interim report to Council and would pause the inquiry until the report was considered.

38. Following the November 3 Special Council Meeting, I resumed consideration of the Complaint.

39. For purposes of the section 12.3 analysis (whether the Complaint is within deadlines) I followed the standard legal practice of assuming that all the allegations in the Complaint are true or capable of proof. (See paragraph 41, below.)

40. I have considered all of the correspondence from the parties. 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 social media.

Positions of the Parties

Allegations of Complainant

41. In applying the deadlines, I am assuming that all the allegations in the Complaint are true or at least capable of proof. This is the usual approach taken in legal proceedings where a preliminary issue is whether there is jurisdiction to proceed: see Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at para. 8; Heller v. Uber Technologies Inc., 2019 ONCA 1, at para. 27.

42. In this case, the preliminary issue is whether the Complaint was submitted within the six-week and six-month deadlines.

43. The Complainant alleges contraventions of sections 2, 3, 4, 5, and 6 of the Council Code of Conduct. The text of these provisions is reproduced in the Appendix.

44. Sections 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 and Mayor Mitchell.

45. Section 2.1 of the Code merely requires Council Members to comply with the Code “as well as all applicable legislation and other policies and procedures adopted or established by Council.” A stand-alone contravention of section 2.1 cannot be alleged – the allegation must pertain to another Code section or a policy.

46. The Complainant’s allegations properly fall under section 3 (Conduct at Meetings) and section 4 (Conduct Respecting Others).

47. This summary categorizes the allegations as either allegations against Councillor Leahy or allegations against Mayor Mitchell. The allegations against Mayor Mitchell are then further categorized as either allegations arising in October 2021 or prior allegations.

48. The principal allegation against Councillor Leahy is that on October 4 he stated, “Let’s hear [sic] what Big Rhonda has to say.”¹⁶

49. The Complainant states that, before telephoning her, Councillor Leahy first called another Council Member “to find out how angry I was.” According to the text of the Complaint, the following happened next:

He [Councillor Leahy] did not call me until over 20 hours later and only after social media took wind. When he did call, he apologized with caveats. “I am sorry. I am usually better than that. I slipped. I hang around Steve (Yamada) too much. I want to move forward.” He also giggled when I stated I was relieved to know the nick name I had been given. I informed him that his apology was insincere and tardy. Importantly, his comment suggested that this kind of behaviour is something he engages in more regularly and that Mr. Yamada is also engaged in belittling other Members of Council.

50. The Complainant states that during the call Councillor Leahy did not ask whether the Complainant was OK and did not talk about “how things may change moving forward.”

51. More generally, the Complainant identifies, “a toxic and misogynistic culture at Town Hall which has made it difficult to function as a Council and as individuals who were elected effectively serve our community.”

52. The Complainant states that she, Councillor Roy, and Councillor Shahid are often “targets of snide or rude comments” from Councillor Leahy.¹⁷

53. She alleges that Councillor Leahy uses “the occasional snide remark to make it clear that those who disagree with [his] positions will be isolated and discredited.” As examples she cites the discussion about naming of parks and an incident involving technical issues during a meeting.

54. According to the Complainant, the Mayor called her two hours after Councillor Leahy called her. The Mayor asked whether Councillor Leahy had called to apologize. He informed the Complainant of the process to file a Code of Conduct complaint. She states that the Mayor neither asked whether she was OK nor talked about things changing in future.

55. The Complainant does not believe that “the Mayor heard clearly what was said” on October 4, but she argues that the presiding officer of a meeting should take steps to be assured of hearing what is said, in order to maintain a professional, respectful environment and to address inappropriate behaviour at meetings.

56. The Complainant takes exception to the Mayor’s public comments about divisions among Council Members (see paragraph 23).¹⁸ Councillor Mulcahy sees reference to the Council divide as an excuse for the October 4 comment, and even a form of blaming her for what occurred. “It should not be called a division or a disagreement when one ‘side’ is clearly engaged in a pattern of intimidation and harassment,” she states.

57. The Complainant states that the Mayor has not previously acted to address “a history of bad behaviour among several Members of Council.” In her words, the Mayor’s “refus[al] to correct this continuous behaviour at Council and has led us to the unfortunate name calling …” She continues:

I cannot separate out these events discretely because they are all a part on an ongoing pattern of behaviour that has poisoned the environment and Council. It has become a norm for these Members of Council to behave in this manner. While I have zero doubt that what [Councillor] Leahy has done is in contravention of our Code of Conduct, the root cause of this issue is much more deeply ingrained.

58. The prior allegations concerning the Mayor mirror several of the comments made by the Complainant at the October 18 meeting of Committee of the Whole. The Complainant alleges incidents in 2019 of bullying, intimidation, sexual harassment, physical touching,¹⁹ and obstruction of the work of Council Members. Another allegation involves November 2020 text messages. More generally the Complainant alleges that the Mayor has given her the silent treatment and communicated with her infrequently. She also states that she has unsuccessfully requested sensitivity training for Council Members since 2018.

59. The Complainant knows that these alleged incidents occurred prior to the six-month deadline, but feels that they are relevant to the Complaint. She writes:

I am well aware that many of these items are beyond the six-month period. But I am not going to allow that to happen moving forward and I feel it important that the history is documented in some way as it is all relevant to a consistent pattern.

60. The Complainant also submits that the history is necessary to rebut the suggestion that there is no record of previous concerns about abusive conduct. She wants acknowledgement that “there is history.”

61. Councillor Mulcahy expresses doubt that the situation will improve. “[A]s of yet [she has] very little reason to believe that the behaviour will change.” She also states, “I lack faith that this Council will take the matter seriously and act in accordance with the Code.”

Councillor Leahy’s Position

62. Councillor Leahy acknowledges that he contravened the Code.

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

64. Councillor 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.

65. He 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.

66. Councillor 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).

Mayor Mitchell’s Position

67. The Mayor’s position on the October 4 comment is reflected in several public statements that he has issued.

68. He states that on October 4 he heard Councillor Leahy’s voice but could not make out what was said. No Council Member rose on a point of order or privilege to draw attention to the offensive language.

69. Since becoming aware of what was said, Mayor has consistently taken the position that Councillor Leahy’s comment was inappropriate.

70. Because of the disposition of the preliminary issue (the issue of the six-month and six-week deadlines), this inquiry is not going to progress to the stage where Mayor Mitchell is asked to address the substance of the Complainant’s allegations about him. I note, however, that following the October 18 Committee of the Whole meeting the Mayor issued a public statement in respond to Councillor Mulcahy’s comments. The statement is available online.²⁰

Findings of Fact

71. Findings of fact appear in the Background section of this report, and below.

72. As I explain above, in considering the preliminary issue, I assume that the factual allegations about prior incidents are true or capable of proof. Consistent with the usual legal practice, the assumption is made without considering what the response to the factual allegations might be. In particular, the assumption is made without hearing the Mayor’s side.

73. It is undisputed that, on October 4, Councillor Leahy referred to Councillor Mulcahy as “Big Rhonda.” Specifically, he said, “Let’s see what Big Rhonda has to say.” The incident is recorded.

74. Both the Complainant and the Mayor agree that Mayor Mitchell did not hear what Councillor Leahy said. I find that, when later he learned about the comment, the Mayor made public his disapproval.

75. I find that Councillor Leahy made apologies, at least three of them public. I find that Councillor Mulcahy accepted the October 18 apology but, in accepting the apology, she did not condone the behaviour or the history, and she most clearly did not consider the matter resolved. The words of Councillor Leahy and Councillor Mulcahy are a matter of public record. The words speak for themselves.

76. Despite his use of this word in various apologies and in submissions to me, I cannot find that Councillor Leahy’s comment was “inadvertent.”

77. “Inadvertent” means accidental or unintentional. By that definition, “Big Rhonda” was not an inadvertent comment. 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.

Issues and Analysis

78. I have considered the following issues:

A. Do I have jurisdiction to consider the allegations against Mayor Mitchell?

B. Did Councillor Leahy contravene the Code?

C. What action should be recommended to Council?

A. Do I have jurisdiction to consider the allegations against Mayor Mitchell?

79. There are two aspects to this issue. First, how do the six-month and six-week deadlines apply when a continuing contravention is alleged? Second, does the Complaint actually allege a continuing contravention?

80. In my view, when a continuing contravention is alleged, the deadlines should be calculated from the most recent alleged incident giving rise to the continuing contravention. Here, however, the Complaint does not actually allege a continuing contravention; the alleged prior incidents are insufficiently connected to the October 4 incident. Consequently, the allegations against the Mayor are untimely and I have no jurisdiction to consider them.

81. Section 12.3 of the Council Code of Conduct provides, in part, as follows:

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.

82. Deadlines (also called limitation periods) are found in many laws, and serve an important legal function. They promote certainty, avoid evidentiary issues such as staleness and preservation, and encourage parties to be diligent in asserting their rights.²¹

83. While a wrong is continuing, the general legal principle is that the time to commence a proceeding has not expired. The Supreme Court of Canada has held, in many different contexts (for example, labour relations,²² municipal liability,²³ leases²⁴ and tort²⁵) that the expiry of a limitation period does not prevent commencement of a proceeding that involves a continuing wrong,²⁶ continuing nuisance,²⁷ continuing breach of contract,²⁸ or continuous unlawful conduct.²⁹ Numerous decisions of other courts and of tribunals are to the same effect.

84. I am aware of two cases in which Integrity Commissioners have considered limitation periods. In Re Di Biase, Integrity Commissioner Suzanne Craig held that the allegation of a continuing pattern of sexual harassment allowed her to consider alleged incidents that occurred outside Vaughan’s six-month limitation period.³⁰ Councillor Di Biase unsuccessfully challenged many of Integrity Commissioner Craig’s findings in Divisional Court, but it appears that he did not challenge her finding on the limitation period.³¹

85. In Pomponi v. Eddy, Integrity Commissioner Melinda Munro held that the County of Brant Code of Conduct did not encompass the concept of a continuing breach.³² (Brant County has six-week and six-month limitation periods that are similar to Whitby’s.) Integrity Commissioner Munro did not mention any of the extensive court jurisprudence on limitation periods in the context of continuing contraventions and continuing wrongs.

86. In my view, section 12.3 of the Town of Whitby Council Code of Conduct should be interpreted in a manner consistent with the judicial precedents (paragraph 83) and Re Di Biase. The words “matter” and “alleged violation” in section 12.3 should be interpreted to encompass alleged continuing contraventions of the Code. As long as the contravention continues, the six-month and six-week deadlines float. The six-month and six-week limitation periods start to run after the last alleged incident of an alleged series.

87. The Complainant believes that the various alleged incidents, including the October 4 comment and its aftermath, are part of one “consistent pattern” of harassment. Harassment is a contravention of the Code and, consequently, a consistent pattern of harassment would be a continuing contravention of the Code.

88. For purposes of the analysis, I assume that all the factual allegations in the Complaint are true or capable of proof. Having made that assumption, I cannot conclude that the Complaint alleges a single, continuing wrong.

89. In Ontario human rights jurisprudence, a pattern consists of incidents of a similar nature or character.³³ I adopt that test and apply it here.

90. The alleged 2019 and 2020 incidents differ from the October 4 incident and aftermath. The incidents relate to different people and very different activities. They are not of a similar nature or character. The prior incidents involve things the Mayor is alleged to have said and done. The October 4 incident involved Councillor Leahy’s words; the Mayor’s alleged connection was enabling, fostering, and failing to prevent, the behaviour. Even assuming – as I must, for purposes of the analysis – that the Mayor’s actions in 2019 and 2020 created a climate in which Councillor Leahy felt he could or should use insulting language on October 4, 2021, there is no pattern, and no single, continuous contravention.

91. Further, when a continuing contravention is alleged, the gaps between alleged elements of the contravention must not exceed the limitation period.³⁴ Under the Code, that period is six months. Even assuming that the allegations in the Complaint are true or capable of proof, the prior incidents are separated from October 4, 2021, by a gap of more than six months. They cannot, therefore, be considered to form part of the same alleged continuing contravention.

92. For these reasons, I lack jurisdiction to consider the prior allegations against the Mayor and, according to section 12.3 of the Code, must take no action on them.

93. Apart from the prior allegations, there are no other allegations against Mayor Mitchell to consider. While Councillor Mulcahy also takes issue with the Mayor’s response in the aftermath of the October 4 incident (in particular, his linking of the incident to the divisions on Council), those concerns do not amount to a contravention of the Code. Further, there is agreement among the parties that the Mayor could not actually make out the words when the comment was made.

94. For the above reasons, the inquiry concerning the Mayor is discontinued under section 15.1 of the Code. While I am not required to report to Council following discontinuance, I may do so, and, in this case, I believe it is appropriate for me to explain my reasons.

B. Did Councillor Leahy contravene the Code?

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

96. Council 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.

C. What action should be recommended to Council?

97. According to section 15.6 of the Code, this report shall outline my findings, “and any recommended action including but not limited to the imposition of penalties.”

98. Following a finding that a Council Member has contravened the Code, subsection 223.4(5) of the Municipal Act provides that Council may impose as a penalty either a reprimand or a suspension of remuneration for up to 90 days.

99. Section 15.6 contemplates that other “action” – apart from a penalty of a reprimand or a suspension of remuneration – might be recommended to Council. Such action could entail a remedial measure to carry out the objectives of a Code. Such action cannot, however, involve a penalty or sanction or be used for a punitive purpose.³⁵

100. An Integrity Commissioner merely recommends action. Only Council possesses the authority to decide what action, including the imposition of a penalty, to take.

101. The incident was widely reported. Both Council and the public are familiar with the details and with the factors that are relevant to consideration of a penalty: Councillor Leahy publicly apologized: not immediately, but within two days.³⁶ He makes no excuses. The comment was hurtful, nasty, mocking, and mean. It was degrading. It shamed someone based on physical characteristics – conduct that can be associated with adverse impacts on physical and mental health.³⁷

102. Councillor Leahy’s apologies are subject to the Apology Act. According to this Act, an apology cannot be taken into account in determining fault or liability. In other words, his apologies are not relevant to whether Councillor Leahy contravened the Code.³⁸ On the other hand, the apologies can be considered in recommending an appropriate penalty.

103. Councillor Mulcahy has pointed out that the harm caused by the comment was felt within the community. In her words:

This body-shaming comment has set off some triggers. The triggers that were set off were far-reaching. So many women, I can’t even begin to count, have reached out with their stories, and their struggles with weight, with shame, with sexual assaults, with harassment, with abuse. It’s them I’ve cried over for the last couple of weeks, not me.

104. The Municipal Act contains no criteria for the imposition of penalties. Various professional and regulatory bodies rely on an established, accepted list of the purposes of the penalties imposed for contraventions of conduct codes. These purposes 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.³⁹ In my view, the same four purposes should be the basis of penalties for contraventions of municipal codes of conduct.

105. Having regard to these purposes, I believe that this case does not warrant a suspension of pay. A financial penalty is not required for specific or general deterrence, it is unnecessary given the compliance history of the individual Council Member, and it is not required to maintain public confidence. Further, to my knowledge, there is no precedent for suspending a Council Member’s pay for an incident of this nature.

106. I have considered the option of a reprimand in light of the same purposes. In this particular case, I do not believe that a reprimand is needed to advance the goals of specific deterrence and rehabilitation. On the other hand, a formal reprimand might further the purposes of general deterrence and public confidence. I am mindful of Councillor Mulcahy’s statement that news coverage of Councillor Leahy’s body-shaming comment triggered many people’s memories of painful experiences with weight, shame, sexual assault, harassment, and abuse. Failure of Town Council to denounce this well-publicized act of body-shaming could diminish public confidence in the municipal institution.

107. I have considered the four purposes in light of all the circumstances, including Councillor Leahy’s apologies. A reprimand is often considered unnecessary when a Council Member accepts responsibility for the contravention and makes a full, unconditional apology. This is most notably the approach taken in City of Toronto, where successive Integrity Commissioners have recommended reprimands because apologies were absent.⁴⁰ At least one other municipal Integrity Commissioner has recommended a reprimand on top of a councillor’s voluntary apology.⁴¹

108. I have also examined the courts’ treatments of reprimands in the context of apologies. In Magder v. Ford, the Divisional Court clearly viewed a reprimand as more severe than an apology; the former is a penalty and the latter is not.⁴² In a very recent municipal conflict of interest case, Justice Gareau seems to have viewed a councillor’s apology (albeit one made after the MCIA court proceeding was launched) as a mitigating factor, but he nonetheless ordered a reprimand.⁴³ An application for judicial review of that decision was dismissed two weeks ago.⁴⁴ Other court cases (some involving discipline and others professional conduct) reflect a variety of approaches: sometimes the absence of an apology is an aggravating factor leading to reprimand; sometimes the presence of an apology is a mitigating factor that contributes to avoiding a reprimand; sometimes a reprimand is ordered despite an apology.

109. Having reviewed the jurisprudence in the context of municipal codes of conduct and this particular case, I would summarize as follows: The presence of an apology is a mitigating factor. Refusal or unwillingness to apologize may be an aggravating factor. Nonetheless, an apology, alone, is not a dispositive factor.

110. I have already noted that the claim of an “inadvertent comment” was factually incorrect; the public transmission was inadvertent, but the comment was not. Councillor Leahy has, however, made other apologies without claiming inadvertence.

111. In general, apologies for contraventions, particularly apologies for conduct that hurts people, are good and ought to be encouraged. At the same time, an apology does not always satisfy other relevant purposes: in particular, public confidence and general deterrence.

112. In considering and applying the purpose of maintaining public confidence, I believe it is appropriate to ask the same questions posed by Councillor Mulcahy on October 18:

If a member of any Town committee or staff had called someone a body-shaming name, what would the actions be to that? We need to be paying attention to how we handle this. If we let this go unaddressed, then what protection are we offering our staff from abuse? What message are we sending to our organization, to our community, to our youth?

113. Taking all relevant considerations into account, I believe that Town Council should reprimand the body-shaming that occurred on October 4.

Recommendation

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

Content

115. 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

Town of Whitby

December 15, 2021

Appendix: Excerpts from Code

2 Responsibilities

2.1 Every Member of Council shall observe and comply with every provision of this Code of Conduct, as well as all applicable legislation and other policies and procedures adopted or established by Council.

2.2 The roles of Council, the Head of Council and Municipal Administration are outlined in Section 224, 225, and 227 of the Municipal Act, 2001, as amended, or as established by the Council of the Town of Whitby from time to time.

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.

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.

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. 2021-04-CC. Reported as 2021 ONMIC 36.
4. 4Processed as Integrity Commissioner File No. 2021-05-CC. Reported as 2021 ONMIC 37.
5. 5The transcript was prepared by me based on my review of the recording of the meeting. The recording is available online, http://video.isilive.ca/whitby/Regular%20Council%20-%202021-10-04.mp4.html, and the relevant comment appears at approximately the 54:43 time mark.
6. 6At one point Councillor Leahy states that the words were, “Let’s hear [sic] what Big Rhonda has to say.” The Complaint also quotes the Deputy Mayor as saying, “Let’s hear …” Actually, my finding is that the word on the recording was “see,” not “hear,” but the difference between the two words is not material to this inquiry.
7. 7In quoting from documents in an inquiry report, my practice is to edit punctuation and capitalization for consistency and to correct immaterial typographical and textual errors.
8. 8Retrieved from Global News, https://globalnews.ca/news/8249094/whitby-deputy-mayor-hot-mic-council/
9. 9Ibid.
10. 10Retrieved from Global News, https://globalnews.ca/video/8252624/whitby-councillor-speaks-out-after-inappropriate-comment-in-meeting
11. 11My transcription, based on a review of the news story.
12. 12This is my transcript based on a recording posted online, http://video.isilive.ca/whitby/Committee%20of%20the%20Whole%20-%202021-10-18.mp4.html, starting at roughly the 0:38 time mark.
13. 13Again, this is my transcript, starting at roughly 2:46 of the recording.
14. 14My transcription of the Mayor’s comments starts at roughly 15:10, and then resumes at roughly 26:00.
15. 15The Mayor’s comments were divided in two parts. He began his concluding comments at approximately the 15:10 mark of the recording, and then paused to allow Councillors Roy, Drumm, and Newman to speak before him. The Mayor resumed at roughly 26:00. The ellipsis in the quotation indicates the separation between his two interventions.
16. 16As explained in footnote 6, I find that the word used was “see” not “hear,” but nothing turns on the difference between these two verbs.
17. 17The Complainant attributes the “snide or rude comments” to another Council Member as well, but that other Council Member is not a Respondent to this Complaint.
18. 18A more detailed exposition of the Mayor’s views on a divided Council appeared in a news story entitled, “Whitby’s mayor pushes back on allegations of infighting, deep divisions on council” (October 12, 2021), online, https://www.durhamradionews.com/archives/145866 That story, however, did not appear until the evening of October 12; the Complaint has already been submitted, that morning.
19. 19The Complaint does not use the word “assault,” but that term was used six days later, at the Committee of the Whole meeting. How the incident was precisely described does not affect my conclusion about the six-month deadline.
20. 20Open letter of Mayor Don Mitchell (October 19, 2021), online, https://pbs.twimg.com/media/FCFLUq1WUAU1MiL?format=png&name=large
21. 21M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 at 29-30.
22. 22Upper Lakes Shipping Ltd. v. Sheehan et al., 1979 CanLII 203 (SCC), [1979] 1 SCR 902, at 909.
23. 23Roberts v. City of Portage La Prairie, 1971 CanLII 128 (SCC), [1971] SCR 481, at 492.
24. 24Wotherspoon v. Canadian Pacific Ltd., 1987 CanLII 2807 (SCC), [1987] 1 SCR 952, at 995.
25. 25Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 SCR 477, at para. 68.
26. 26Upper Lakes Shipping Ltd., note 20.
27. 27Roberts v. City of Portage La Prairie, note 21.
28. 28Wotherspoon v. Canadian Pacific Ltd., note 22.
29. 29Pro‑Sys Consultants Ltd. v. Microsoft Corporation, note 23.
30. 302017 ONMIC 22.
31. 31Di Biase v. Vaughan (City), 2016 ONSC 5620 (Div. Ct.).
32. 322017 ONMIC 11.
33. 33Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (Ont. Div. Ct.), at para. 45, citing Manitoba v. Manitoba (Human Rights Commission), 1983 CanLII 2967 (Man. C.A.), at para. 19.
34. 34Chintaman v. Toronto District School Board, 2009 HRTO 1225, at para. 11; Pakarian v. Chen, 2010 HRTO 457, at para. 25.
35. 35Magder v. Ford, 2013 ONSC 263, at paras. 66-70; Altmann v. Whitchurch-Stouffville (Town), 2018 ONSC 5306, at paras. 45-46.
36. 36A meaningful apology is unequivocal and unconditional. The Councillor’s televised apology met that standard. In my view, his telephone call with the Complainant did not.
37. 37Sutin, A. R., Stephan, Y., & Terracciano, A. (2015). Weight Discrimination and Risk of Mortality. Psychological Science, 26(11), 1803–1811.
38. 38It is Councillor Leahy’s statement that he contravened the Code, and not the fact of his apologies, that can be, and is, taken into account in assessing whether a contravention occurred.
39. 39Law Society of Upper Canada v. Strug, 2008 ONLSHP 88, at paras. 3-8; Law Society of Ontario v. Woogh, 2018 ONLSTH 107, at para. 5; Ontario (College of Physicians and Surgeons of Ontario) v. Yaghini, 2017 ONCPSD 29, at 6; Ontario (College of Physicians and Surgeons of Ontario) v. Seltzer, 2009 CanLII 92553 (ON CPSD), at 4; Ontario College of Teachers v. Black, 2009 ONOCT 8, at 6; Ontario (College of Massage Therapists of Ontario) v. Amiri-Pour, 2019 ONCMTO 28, at 6; Ontario College of Social Workers and Social Service Workers v. Yu, 2020 ONCSWSSW 11, at para. 5; Ontario College of Social Workers and Social Service Workers v. Scally, 2021 ONCSWSSW 9, at para. 21; Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v. Yatwah, 2018 ONCTCMPAO 27, at paras. 11-12; Former Student of the Institute of Chartered Accountants of Ontario v. Institute of Chartered Accountants of Ontario, 2005 CanLII 24926 (Ont. Div. Ct.), at paras. 22-24
40. 40Li Preti v. Augimeri, 2007 ONMIC 2, Integrity Commissioner Mullan, at 5; Re Ford (Supplementary), 2012 ONMIC 9, Integrity Commissioner Leiper, at 5; Re Ford, 2012 ONMIC 4, Integrity Commissioner Leiper, at 7; Byford v. Matlow, 2018 ONMIC 5, Integrity Commissioner Jepson, at 13.
41. 41Re Carella, 2018 ONMIC 26, Integrity Commissioner Craig, at 4. Contrast this report with the recommendation of the same Integrity Commissioner described in Altmann v. Whitchurch-Stouffville (Town), 2018 ONSC 5306, at para. 15.
42. 42Magder v. Ford, note 33, at para. 67.
43. 43Elliott Lake (Town), v. Pearce, 2021 ONSC 1851, at paras. 38-39, online, https://www.elliotlake.ca/en/city-hall/resources/Documents/Justice-Gareau-Decision-on-Councillor-Pearce-Conflict-of-Interest-Case---March-2021.pdf
44. 44Elliott Lake (City) v. Pearce, 2021 ONSC 7859.