Township of Adjala-Tosorontio Integrity COMMISSIONER, Guy Giorno

Citation: Hall-Chancey v. Pinto, 2022 ONMIC 15
Date: July 30, 2022

Inquiry Report

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://adjala-tosorontio.civicweb.net/document/34547/

(see minutes of August 10, 2022, RES-359-2022, item 10.1, page 3)

TABLE OF CONTENTS

The Complaint 3

Summary. 3

Background. 3

Process Followed. 8

Positions of the Parties. 9

Findings of Fact 10

Issues and Analysis. 11

A. Does the Code prohibit a Member from suing another Member?. 11

B. Does the Code prohibit a Member from threatening to sue another Member?. 12

Conclusion. 13

Content 13

The Complaint

1. During the February 9 Council Meeting, Mayor Floyd Pinto (Respondent) threatened to sue Councillor Deborah Hall-Chancey (Complainant) for defamation.

2. The Complainant alleges that the Respondent contravened section 6.2.1 n) and section 6.13.1 of the Council Code of Conduct.

Summary

3. I cannot find that threatening to sue another Member for defamation is contrary to the Code of Conduct.

4. I find that the Code of Conduct does not apply to court proceedings commenced by Council Members against other Members and does not apply to a Council Member’s threat to commence litigation against another Member.

5. I also find that an Integrity Commissioner’s jurisdiction does not extend to litigation and threatened litigation brought by Members against other Members.

6. After the Complaint was filed, the Mayor served Councillor Hall with a Notice of Libel – that is, he actually took a formal step toward suing her. Because the libel notice did not exist at the time of the Complaint, I have not considered it in this proceeding. The issue in this inquiry is the threat to sue another Council Member, not the act of actually suing another Member.

Background

7. About three hours into the February 9 Regular Meeting of Council, Councillor Hall-Chancey, seconded by Councillor Anderson, moved to suspend the Rules of Procedure to permit the addition of a new item to the agenda: Behaviour and conduct of Mayor Pinto.

8. Suspension of the Rules required a two-thirds vote. The motion was defeated on a 4-3 vote, falling short of the necessary two-thirds.

9. Based on the recording of the meeting, I have prepared the following transcript of the relevant discussion:¹

Mayor: The next item on the agenda is Notice of Motion. Does anyone have any notice of motion? Councillor Hall-Chancey.

Coun. Hall-Chancey: Yes, through Your Worship. I’d like to move that Council suspend the Rules of Procedure to add an item to the Notice of Motion.

Mayor: Add an item? Go ahead.

Coun. Hall-Chancey: It’s the behaviour and conduct of our Mayor Pinto.

Mayor: OK. Go ahead.

Coun. Hall-Chancey: And can I get a seconder to bring it onto the floor?

Mayor: Hold on, what’s the –

Coun. Anderson: Can I just ask a question?

Mayor: Go ahead, Councillor Anderson.

Coun. Anderson: Are we adding a new topic, or are we adding it to the Notice?

Coun. Hall-Chancey: We’re adding it to the Notice of Motion. It’s a new topic under 12 because there isn’t anything currently.

Coun. Bays: But is it to be discussed tonight, is that why the suspension of Rules?

Coun. Hall-Chancey: That’s correct.

Mayor: Well, if you want it added to the agenda it has to be at the start of the meeting. You can’t suspend the Rules during the meeting.

Coun. Hall-Chancey: I have clarified that with the Clerk, and maybe she can intervene.

[consultation with Clerk omitted]

Deputy Mayor: Point of clarification. Can I hear what the notice is again, please?

Coun. Hall-Chancey: The behaviour and conduct of Mayor Pinto.

Deputy Mayor: Well, isn’t behaviour and conduct, doesn’t that go under our Code of Conduct, which is dealt with by Integrity Commissioner investigations, and shall not be discussed in public setting, until it’s been vetted through the proper process?

Mayor: The Integrity Commissioner. If you have a concern you go to the Integrity Commissioner.

Deputy Mayor: It’s got to go through the Integrity Commissioner. You cannot vet a complaint –

Mayor Pinto: You are defaming someone in public. That’s exactly what was done the last Council, and I am telling you I will file a defamation lawsuit against you if you say anything in public against me. I’m making this in public, I’m making this comment. You did it to the Deputy Mayor. And I will do it tomorrow morning, if you make any comment. If you want to take up the Code of Conduct you have the right to do it under the Code of Conduct through the Integrity Commissioner. You, Councillor Hall-Chancey, are going too far. If you have a complaint, you will complain tomorrow, the Integrity Commissioner will decide about it, not this Council. After the report comes from the Integrity Commissioner then we’ll decide about how it goes forward. So you can go forward, I have no problem, and I’m tired of these accusations being made out here and things being done out here. You want to go forward, go right ahead, and I’ll record this, everything that you say, and then we’ll deal with it the proper way. Go ahead. You have the floor. Go ahead. You have the floor. I’m giving you the floor. Make your comment.

Coun. Anderson: Your Worship.

Mayor: Yep.

Coun. Anderson: So if I understand correctly, the Councillor has moved a motion to add an item to the agenda – sorry, to suspend the Rule of Procedure –

Mayor: That’s right.

Coun. Anderson: – to add an item to the agenda.

Mayor: Yep.

Coun. Anderson: It requires two-thirds disposition to add it to the agenda.

Mayor: Yes.

Coun. Anderson: Or to suspend the Rules and add it to the agenda.

Mayor: Yep.

Coun. Anderson: So the Councillor has moved that. I’ll second the motion, just to see what the deal is here.

Coun. Bays: So then I guess you ask all in favour.

Mayor: Yep. So all in favour of it. And can I have a recorded vote on this please? Deputy Mayor, your speaker is off.

Deputy Mayor: I don’t agree with the process that’s being handled right now because the Mayor can’t vote on it because he’s in a conflict of interest, for one, because if he votes on it, and it’s up to me to call the vote, Ms Bays. It’s not up to you to call the vote. I’m the Deputy Mayor here.

Coun. Bays: Well, can we go ahead? It looks like we don’t have the two-thirds anyway so it’s irrelevant, right? Am I correct?

Mayor: No, the thing is, I’m not declaring a conflict of interest because it’s nothing to do with a financial matter with me, so it’s not a conflict of interest for me. I will decide after the comment is made whether I proceed against – legal action against Councillor Hall-Chancey. So I want to hear your comment and I want it recorded so I can then commence –then I’ll decide after that once I commence legal action against her.

[calling the question and voting omitted] [motion defeated]

Mayor: Councillor Hall-Chancey, I look forward to your comments. Please go ahead. The next item on the agenda –

Coun. Anderson: Your Worship. Point of personal privilege.

Mayor: Sure, go ahead.

Coun. Anderson: I am disgusted by your behaviour in that session just a moment ago. Threatening your colleagues, your colleagues, in your Township that you serve, with legal action for comments that weren’t even made yet. Nothing was even said. A threat to this Council and this Township, that you would proceed with legal action against us –

Mayor: Not against you.

Coun. Anderson: – that comments have not been made. And I am appalled by that, Your Worship, and I request that you apologize for those comments.

Mayor: Councillor Anderson, I did not say it against you. Neither did I say it against the Township. I will never sue this Township. The residents have not done anything. It’s the comments that are being made by Councillor Hall-Chancey and that’s the reason I told her that if she wants to make a comment, she has a right to go to the Integrity Commissioner. This was exactly what was done in the past –

Coun. Pita: She has the right to do what she’s doing.

Mayor: I’ve got the floor.

Coun. Pita: She has the right to do what she’s doing.

Mayor: Councillor Pita, I have the floor. I have the floor, Councillor Pita. Point of order, Councillor Pita, I have the floor. This is exactly what happened at the last Council. When they brought accusations at Council, and made accusations about a Council Member in Council Chambers and the Integrity Commissioner clearly stated that that should not have been done in camera. When you’re talking about an identifiable individual under the Municipal Act, you discuss that in camera or you go to the Integrity Commissioner. That’s the section under the Municipal Act. And I’ve never said anything about the residents. I would never do anything to the residents. I clearly said “Councillor Hall-Chancey.”

Coun. Anderson: Yes, Your Worship, and I’m sorry, but that’s a sitting Member of this Council that you would be suing, acting under the Township authority, and I’m sorry to say that you would be suing the Township. You’d sue a Councillor sitting in a meeting at this term of Council. If you don’t wish to rule on the privilege, so be it. That’s your prerogative, but I’ve asked you to apologize for your comments.

Mayor: And I’ll tell you honestly, she has the right to go to the Integrity Commissioner. I’m telling her again, please go to the Integrity Commissioner with this complaint, and I have no problem answering. I will not be apologizing. Council can take a vote on it, because I’ve made it very clear that she – if anyone wants to make an allegation against another Council Member there’s an Integrity Commissioner, there’s a process to be followed. It seems that this Council just decides, whoever they want to blame, just make comments out here, and that’s about it. I mean, it’s just getting ridiculous. So, you all want to go ahead, I’m telling you, please go ahead, there’s a process to go ahead. But I tell you one thing, the comments – you’ve all gone and twisted that this is going to go against the residents. It has nothing to do with the Township or the residents, and there are ways to award claims for defamation. So please don’t say that this is affecting the residents. This has nothing to do with the residents and would never be voted. None of you all have ever voted a case that way. We had lawyers for our last case and – Councillor Pita, don’t shake your head, unless you’ve got a legal opinion, because we got a legal opinion, OK? So, thank you very much and I said I’m not going to apologize. I’ll move on. We voted on it. I’m moving forward to the next item. The next item on the agenda is a notice of motion –

Coun. Bays: May I please speak to this item? Because she hadn’t even said what her motion – she hadn’t read her motion. You have no idea what it was, and I would just like to read from the Code of Conduct, section 6.18.5, which states that, “Council reserves the right to ‘censure’ an individual Member” –

Deputy Mayor: Point of order.

Coun. Bays: – “where the conduct is” –

Deputy Mayor: Point of order.

Coun. Bays: – “deemed to be unacceptable to Council.”

Deputy Mayor: Point of order.

Coun. Bays: And, therefore, that means –

Mayor: Hold on, Councillor.

Deputy Mayor: Point of Order.

Coun. Bays: – that speaks to Council having the right –

Mayor: OK. He’s called a point of order. Let me see what his point of order is.

Deputy Mayor: Point of order. We have finished this. We have taken the vote. We’re not discussing it anymore. Let’s move on. There’s nothing more to discuss on this. It’s done. It’s finished.

Coun. Bays: That’s your –

Deputy Mayor: And that’s exactly what you said to me just earlier.

Coun. Bays: I had – three of us had our cards up to speak when that was ended.

Deputy Mayor: It doesn’t matter. You’ve already voted. You voted and it got defeated, so you cannot discuss it anymore.

Coun. Bays: Well, the Mayor was speaking after the vote. The Mayor was speaking after the vote.

Mayor: OK –

Coun. Bays: Three of us had our cards up, OK. So there’s different rules for different Members of Council, apparently.

Mayor: – OK, I’m just going to go to the next item on the agenda. You’ll have the choice to take it how you all want it, all right? The next item on the agenda is Notice of Motion, by Bob Meadows. The recommendation is that –

Coun. Anderson: Your Worship.

Mayor: Go ahead, Councillor Anderson

Coun. Anderson: I actually have a notice of motion that I put on the floor.

Mayor: Oh, did you?

Coun. Anderson: I do now.

Mayor: Oh, go ahead.

[remainder omitted]

10. My transcript omits voting on the motion to suspend the Rules. The following remarks during voting are relevant to the allegations in the Complaint, so I am reproducing them below:

Clerk: Councillor O’Leary.

Coun. O’Leary: I’m against. We don’t need any more lawsuits.

11. The transcript ends at the point where Councillor Anderson gave notice of a motion to censure the Mayor. His motion was ultimately adopted, at the March 9 Council meeting. Mayor Pinto subsequently served libel notices on four Council Members, including Councillor Hall-Chancey and Councillor Anderson. These developments are discussed in a separate report, Pinto v. Anderson, Bays, Hall-Chancey and Pita, 2022 ONMIC 14, at paras. 10-14.

12. On February 13, Councillor Hall-Chancey filed a Code of Conduct complaint. She alleges that Mayor Pinto’s threat to sue her for defamation, and the rest of his comments reproduced above, contravened section 6.2.1 n) and section 6.13.1 of the Code.

13. I commenced an inquiry and invited both parties to address whether the Code of Conduct restricts a Member from threatening to sue another Member, and whether an Integrity Commissioner’s has jurisdiction to consider a complaint based on a threat of litigation.

14. I have taken both parties’ submissions into account.

15. Because of my conclusion on these points, it has not been necessary to consider other issues.

Process Followed

16. I issued a Notice of Inquiry that asked both parties to address the following preliminary issue:

While I understand the distinction between threatening lawsuits and filing lawsuits, I am unsure whether an Integrity Commissioner has jurisdiction over a complaint arising from litigation, whether threatened or actual.

First, I am not sure that a municipality has authority to restrain someone from suing for defamation. In other words, I am unsure that a code of conduct can prohibit one councillor from suing another councillor. If a code of conduct cannot prohibit someone from commencing a lawsuit, can a code of conduct prohibit someone from threatening to commence a lawsuit? I invite the parties to address this question.

Second, an action for defamation would be brought before the Superior Court of Justice. Such a lawsuit would be subject to the judicial process. Does an Integrity Commissioner have jurisdiction to consider whether a defamation lawsuit (real or threatened) has merit? If an Integrity Commissioner does not have jurisdiction to inquire into whether a defamation lawsuit has merit, then what issue arising under this complaint am I permitted to consider? I invite the parties to address these questions.

I will pause further steps in the inquiry until both parties have an opportunity to address this preliminary issue.

17. I received and carefully reviewed submissions from both parties. I have also examined the recording of the February 9 meeting and considered relevant case law.

Positions of the Parties

Complainant’s Position

18. The Complainant alleges that the Mayor’s February 9 comments were contrary to section 6.2.1 n) of the Code:

6.2.1 Members shall in exercising and discharging their Official Duties:

n) not bully, threaten, coerce, or otherwise harass, or intimidate staff, the public, or public agencies

19. The Complainant further alleges that the Mayor contravened section 6.13.1, which reads as follows:

6.13.1 Members shall conduct themselves with decorum at Council and Committee Meetings in accordance with the provisions of the Township Procedural By-law, or other policies or by-laws governing conduct at proceedings. Members are to demonstrate courtesy and respect for delegations, fellow Members and staff and shall not distract from the business of the Council during presentations and/or when other Members have the floor.

20. The Complainant submits that the Mayor’s comments, including the threat to sue, were intimidating, unacceptable (especially coming from a Head of Council) and bullying. She says that the Mayor’s accompanying hand and facial gestures compounded the intimidation and bullying.

21. Her position is that the Mayor was attempting to silence a different viewpoint – even though he did not actually know what Councillor Hall-Chancey was going to say. She points out that the only words she had spoken were, “The behaviour and conduct of Mayor Pinto.” In this context, she submits that the Mayor’s remarks were unprovoked and uncalled for.

22. She also submits that the prospect of retribution (through litigation) will cause her, other Council Members, and staff members, to be fearful of speaking up at future meetings.

23. Councillor Hall-Chancey observes that by silencing her through the threat of litigation, the Mayor has prevented her from representing her constituents.

24. The Complainant also argues that the Mayor’s threat of litigation affected the outcome of the vote. As noted at paragraph 10, Councillor O’Leary, in voting against the motion, explained, “We don’t need any more lawsuits.”

Respondent’s Position

25. The Mayor observes that no section of the Code of Conduct restricts a Member from commencing legal action against another Member. He argues that such a restriction, if it did exist, would infringe Members’ right to access the judicial process. According to the Mayor, “Every person has a right to due judicial process under law.” I take this to mean that everyone has the right to access the courts and to seek judicial remedies according to law.

26. He also observes that no section of the Code of Conduct prevents a Member from giving notice of the intention to commence legal action against another Member. The Mayor argues that stating the intention to initiate litigation is not a threat.

27. The Mayor also submits that once a libel notice is issued or litigation is commenced, an Integrity Commissioner does not have jurisdiction to decide whether the litigation has merit. Decisions about a defamation action belong exclusively to the courts.

28. According to the Respondent:

Any investigation commenced by the integrity commissioner would interfere with the plaintiff’s rights to due judicial process. We live in a democratic society governed by rule of law and a strong judicial system. Councillor Deborah Hall-Chancey will have a fair opportunity to provide all her evidence before the courts to justify each of her allegations that she made at the March 2022 Council meeting and each of the sections of the code of conduct that she accused me of violating and voted in favour of censuring me.

Findings of Fact

29. Findings of fact appear in the Background section of this report. As the meeting was recorded, it was unnecessary for me to rely on people’s recollections of what occurred.

30. I decline to make a finding that the Mayor’s comments altered the outcome of the vote on Councillor Hall-Chancey’s February 9 motion.

31. I am aware that Councillor O’Leary said, as he voted against the motion, “We don’t need any more lawsuits.” Nonetheless, I believe that it would be inappropriate and presumptuous for me as Integrity Commissioner – or for anyone other than the Council speaking collectively by resolution – to dictate what Council would have decided if factors had been different.

Issues and Analysis

32. I have considered the following issues:

A. Does the Code prohibit a Member from suing another Member?

B. Does the Code prohibit a Member from threatening to sue another Member?

A. Does the Code prohibit a Member from suing another Member?

33. No.

34. Councillors are protected by qualified privilege but not absolute privilege.² As the difference between “qualified” and “absolute” suggests, Council Members enjoy significant protection but not total protection for what they say at meetings. The practical result is that – in limited circumstances – Council Members may be sued for their comments during meetings of Council.

35. The right to bring a lawsuit is an ancient common law right that can only be restricted or removed by legislation.³ As observed by one Ontario judge, albeit in a non-municipal context, “If the legislation was intended to limit the right to sue it would have clearly so stated.”⁴ There is no indication that Part V.1 of the Municipal Act was intended to remove the right of Council Members to sue for defamation, and no indication in Part V.1 that municipal Codes of Conduct may restrict the right to sue.

36. Councillor Hall-Chancey, writing in the Complaint, and Councillors Anderson and Bays, speaking at the February 9 meeting, articulated why litigation, or even the threat of litigation, could have a deleterious, chilling effect on the proper functioning of a municipal Council. Regardless of the merits of their arguments, I agree with Mayor Pinto’s submission that the Code of Conduct cannot, and does not, take away his right to seek redress in the Courts for a perceived wrong.

37. Ultimately, the Court will decide whether a plaintiff was defamed by a defendant. If a lawsuit succeeds, if it fails, or if the Court determines there was no basis to commence an action in the first place, then the Court has the discretion to adopt appropriate remedies, including cost sanctions against an unsuccessful party.

38. This is the business of the Courts, not of an Integrity Commissioner. An Integrity Commissioner is in no position to comment on whether a defamation action has merit or whether it should have been commenced. These questions lie outside an Integrity Commissioner’s jurisdiction.

39. In this case, however, I have not considered the libel notice that was eventually served. I have only assessed the Mayor’s threat to sue Councillor Hall-Chancey.

B. Does the Code prohibit a Member from threatening to sue another Member?

40. No.

41. For the same reasons that suing someone for defamation is not contrary to the Code, stating an intention to sue someone for defamation is not contrary to the Code.

42. Just as the Code places no restriction on the commencement of litigation, it also contains no provision that prevents a Member from talking about potential legislation.

43. I understand the logic of the Complainant’s position that threating a lawsuit is a form of intimidation and bullying.

44. If, however, a lawsuit turns out to have merit – if the lawsuit ultimately succeeds – then talking about the lawsuit prior to filing cannot have been improper. As I have already explained, an Integrity Commissioner is in no position to evaluate a lawsuit’s merit, and an Integrity Commissioner should not comment on whether a lawsuit will succeed. For the same reason, an Integrity Commissioner should not evaluate or comment on a threat to litigate.

45. The finding in Re Murphy (No. 2), 2018 ONMIC 14, is distinguishable and does not apply in this situation. That case involved a reprisal against someone who had made a Code of Conduct complaint. Anti-reprisal language in a Code might encompass threats of litigation. That is not the case here.

Conclusion

46. I find that commencing a defamation action is not contrary to the Code. The Legislature would need to use clear language to remove the right to file a lawsuit, and would need to use clear language to permit municipalities, in their codes of conduct, to restrict the filing of lawsuits.

47. For the same reasons, I find that communicating the intention to file a lawsuit against another Member is not contrary to the Code.

48. The conclusion of this report should not be interpreted as an endorsement of threatening to sue a fellow Council Member. The conclusion is not meant to detract from the concerns that have been raised concerning the harmful effect of threatening to sue a colleague. Threatening to sue may not be contrary to the Code, but this does not mean the practice should be encouraged.

Content

49. 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 Adjala-Tosorontio

July 30, 2022

Footnotes

1. 1The discussion starts around the 3:16:20 mark of the recording. The SoundCloud recording is available online: shorturl.at/kNQ38
2. 2Prud’homme v. Prud’homme, 2002 SCC 85, at para. 49; Gutowski v. Clayton, 2014 ONCA 921, at paras. 5-28.
3. 3Ottawa Valley Power Company et al. v. The Hydro-electric Power Commission et al., 1937 CanLII 99 (ON CA), [1937] O.R. 265.
4. 4Lehman v. Davis, 1993 CanLII 5497 (ON SC).