TOWN OF MONO INTEGRITY COMMISSIONER, Guy Giorno

Citation: Re Nix, 2022 ONMIC 17
Date: August 9, 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://mono.civicweb.net/document/130929/ (minutes of Council Meeting 17-2022, page 5, item VII, no. 15, Resolution #7-17-2022, referencing Schedule “A” of meeting agenda: https://mono.civicweb.net/document/130092/?printPdf=true)

TABLE OF CONTENTS

The Complaint 3

Summary. 3

Background. 4

Process Followed. 7

Positions of the Parties. 9

Complainants’ Position. 9

Respondent’s Position.. 10

Findings of Fact 11

Issues and Analysis. 12

A. Is the Respondent responsible under the Code for the acts and omissions of the Town and/or Council as a whole?. 13

B. Does the Code of Conduct allow an Integrity Commissioner to apply the common law rules on prejudgment and personal interest?. 14

C. Did the Respondent contravene section 1.3 of the Code by using the influence of office for a purpose other than the exercise of official duties, namely, to further the interests of the Bruce Trail Conservancy?. 15

D. Did the Respondent contravene section 1.5 of the Code by sharing the Complainant’s letter? 16

Content 18

Appendix: Excerpts from Code of Conduct 18

The Complaint

1. Two residents (Complainants) allege that Fred Nix (Respondent) contravened the Council and Local Board Code of Conduct Bylaw (Bylaw 2019-11) in March 2021. The Respondent is currently the Deputy Mayor; at the time of the alleged contravention, he was a Councillor.

Summary

2. The Complainants’ allegations relate partly to conflict of interest, but given the passage of time it was not possible for them to apply for an inquiry into whether the Municipal Conflict of Interest Act was contravened. An application for an Integrity Commissioner inquiry into MCIA allegations must be made within six weeks after one becomes aware of the alleged contravention.¹ The Complainants are aware that this Code of Conduct inquiry is limited to issues arising under the Code.

3. The Complainants have been dealing with a number of ongoing concerns that relate, directly or indirectly, to a particular parking lot. They are aware that my jurisdiction as Integrity Commissioner is limited to the allegations under the Code of Conduct, and that my role does not extend to any other issues such as the conduct of the Town (including its staff) and the Municipal Freedom of Information and Protection of Privacy Act. Nothing in this report is to be interpreted as commentary on any issues outside my jurisdiction.

4. In the course of this inquiry, I have come to understand fully the Complainants’ concerns about the parking lot. However, the only authority I possess is to inquire and to report on whether the Respondent contravened the Council Code of Conduct. He did not.

5. As one of five Council Members, the Respondent is not individually responsible for the acts and omissions of Council as a whole.

6. Only the Courts, and not an Integrity Commissioner, can apply the common law rule that a municipal council member is disqualified by reason of bias if the council member has prejudged the matter to be decided to the extent that the member has a closed mind and is no longer capable of being persuaded. Only the Courts, and not an Integrity Commissioner, can apply the common law rule that requires municipal councillors to refrain from dealing with matters in respect of which they have a personal interest or other interest.

7. Apart from the common law rules on prejudgment and on personal interest (rules that only the Courts can uphold) and apart from the MCIA (which is not part of this inquiry), nothing prevents Council Members from applying their lived experiences, their backgrounds, and their particular priorities to their roles as Council Members.

8. Making inaccurate statements does not in itself breach the Code of Conduct.

9. The sharing of the Complainants’ letter might be an issue for the Information and Privacy Commissioner under MFIPPA, but it did not contravene the Code as it was a public document published in the agenda package of a public Council meeting.

Background

10. The Bruce Trail Conservancy is a not-for-profit corporation incorporated in 1963 as The Bruce Trail Association. Its name was changed in 2007. The Town’s Official Plan still refers to the Bruce Trail Association and several of the submissions of the parties use the former name. For consistency, I use the current legal name, Bruce Trail Conservancy, in this report.

11. Membership in the Bruce Trail Conservancy includes membership in one of its nine affiliated clubs. For many years, the Respondent has been an active member of the Bruce Trail Conservancy and its Caledon Hills Club (also known as the Caledon Hills Bruce Trail Club). In this capacity, he has volunteered to help maintain a portion of the Trail. Other than active membership, at the relevant times the Respondent held no official position in the Bruce Trail Conservancy or the Caledon Hills Bruce Trail Club.

12. For some time, the Complainants have been concerned about the conduct of some users of the 7th Line Parking Lot that provides access to the Bruce Trail. The parking lot is owned by the Town and leased to the Bruce Trail Conservancy.

13. The conduct identified by the Complainants includes: people parking their vehicles not inside the parking lot but on 7thLine itself, often obstructing the access of local residents; people throwing garbage onto a nearby property; people trespassing on a nearby property, for example, to picnic; people failing to observe COVID protocols when approaching nearby residents; people consuming drugs and alcohol in the parking lot at night; people using the parking lot at night to engage in sex acts; and people who allow their dogs to defecate on a nearby property and do not remove the excrement. These are merely illustrative examples that I have chosen for purposes of this report. The Complainants have given the Town a long list of problems associated with the 7th Line parking lot.

14. At its March 9, 2021, regular meeting, Town Council considered a letter from the Complainants that set out some of their concerns. Appended to the correspondence were several supporting photographs.

15. The Respondent did not declare a pecuniary interest in the matter and did not withdraw from the discussion. Because this is not a Municipal Conflict of Interest Act inquiry, those facts are not the subject of consideration.

16. The Respondent was the first Council Member to speak to the matter. The following is my transcript of the Respondent’s remarks, based on my review of the recording:²

You all know that I’m an active member of the Bruce Trail, and I have forwarded the letter that we received and some other comments, [Town Clerk] Fred Simpson’s excellent little history, to both the local club, the Caledon Hills Bruce Trail Club, and head office, and I’ve spoken to both parties.

I have no authority, of course, to speak for the Bruce Trail – I’m just a maintenance worker – but they are concerned with this complaint about the parking lot. They did point out to me – I can’t swear this is true – but they did point out to me that the planning stages for that parking lot actually were in the wings and had started before those people bought the lot and built their house. So, their point simply being, it wasn’t as if someone had a nice house and they came along and put a parking lot in front of it; they were actually in the planning stages either before the NEC or wherever they had to appear before to get a parking lot there.

They did agree that they’ve been a bit delinquent in living up to the lease agreement they have with the Town and part of the reason for that is that we have one local chap who’s in there two or three times a year, I’m in there maybe a couple times a year, and quite honestly our experience has been we see so little garbage or litter. I mean, occasionally I’ll see an empty water bottle. The lease agreement required the Bruce Trail to go in there once a week to clean up litter. There just isn’t that much.

So we’ve discussed other ideas but again this is informal. I’m not saying that they’re going to take, do this seriously, or there’s any commitment here. We’ve thought about – I’ve discussed the solution we did to the parking lot at Island Lake Family Park where we had residents who were concerned, so we put a – what do you call it? – a bar with a lock on it, and that resident opens and closes the parking lot. We’ve just speculated, we’re wondering out loud, could we do that to the 7th Line parking lot, you know, and take the key over to the person across the road and say “Here, you’re in charge. It opens first thing in the morning and closes at night.” It’s not supposed to have overnight parking.

So, in any case, I’m in Council’s hands on this. So I’m just relaying to you some of the things I’ve done since we’ve received that letter. I’ve talked to the club and the head office. They are concerned. They obviously want to keep the parking lot there. It is designed to hold 20 cars and it’s quite important for hikers to be able to park there.

[Omitted: Suggestion by Mayor Ryan about the possibility of limiting parking to one side of the road]

I certainly could go for that. By the way, two other points: We did also consider maybe we could put – I don’t know if you’re familiar with the parking lot on Hockley Road, County Road 7, it’s owned by Ontario Parks, but the Bruce Trail put a new kiosk there. It has a map and some instructions. We thought if we did something like that on 7th Line, maybe that would eliminate those people that occasionally cross the street and knock on doors and say “where’s the Trail?” or ask some inane questions. So I’m not saying that’s a promise, but we discussed that. And the only other point that they made when they read the letter was that is if some people are crossing the street and having a picnic on the residents’ lawn, they actually physically can’t do it. There’s a big board fence there. Probably what’s happening is that some people are siting – they [local residents] mow the grass in front of the fence, but that’s Town property – I’m not saying they [Trail users] should be doing that, but they can’t physically get into those peoples’ property unless they walk down the driveway, you know. Any case –

[Omitted: Further comment by Mayor Ryan]

Well it’s been brought to the attention of Bruce Trail and I’m hoping it will result in some plans for action this summer.

17. Council asked the Director of Public Works to consider the Complainants’ concerns and a possible solution and to report back. The minutes record Council’s discussion and disposition as follows:

7th Line Bruce Trail Parking Lot

Councillor Nix reported that he spoke with staff of the Bruce Trail Conservancy (BTC) and members of the Caledon Hills Trail Club and both are concerned with the complaint and are taking it seriously. Trail volunteers will ensure that garbage is checked more often. A kiosk, similar to the one at Hockley Valley Nature Reserve was also suggested as a solution to provide additional information to hikers on their responsibilities and actions when utilizing the parking facility. Council discussed whether to create a no parking zone in the vicinity of the parking lot and asked the Director of Public Works to investigate and report back.

18. Following March 2022 correspondence with me (described under the Process Followed heading of this report), in April, the Complainants formally complained that the Respondent had contravened sections 1.2 and 1.3 of the Code of Conduct.

19. In June, the Complainants supplemented their Complaint with an allegation that the Respondent contravened the Municipal Freedom of Information and Privacy Act by communicating with the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club within the Complainants’ permission. I have considered this additional allegation under section 1.5 of the Code.

Process Followed

20. Some municipalities set deadlines for bringing Code of Conduct complaints. The Town of Mono has not done so. Consequently, I conducted an inquiry even though the Complaint was submitted a year after the Council meeting that gave rise to it.

21. In operating under the Code, I follow a process that ensures fairness to both the individuals bringing a Complaint (the Complainants) and the Council Member responding to the Complaint (the Respondent). This fair and balanced process is based on the Integrity Commissioner Advice & Inquiries Procedure, Policy # ADMN-2020-001, that was adopted by Council. It begins with me issuing a Notice of Inquiry that sets out the issues in the inquiry. The Complaint, including any complaint materials, is attached to the Notice. The Respondent is given the opportunity to respond, and then the Complainants receive the opportunity to reply to the Response. The Respondent is made aware of the Complainants’ names. I do, however, redact personal information such as personal phone numbers and email addresses. I may accept supplementary communications and submissions from the parties, generally on the condition that each party gets to see the other’s communications with me. I do this in the interest of transparency and fairness.

22. The Complainants emailed me on March 8, 2022, to express their concern that the Respondent had been in a conflict of interest on March 9, 2021. They followed up by submitting a formal Code of Conduct complaint form, March 14, that confirmed their conflict of interest complaint.

23. On March 17, I emailed the Complainants, explaining that I could not conduct a Code of Conduct inquiry into whether the Respondent had breached the Municipal Conflict of Interest Act. In section 223.4.1 of the Municipal Act, the Legislature has clearly and very deliberately established a separate process for Integrity Commissioner inquiries into alleged contraventions of the MCIA. Consequently, MCIA allegations cannot be considered in a Code of Conduct inquiry.³

24. The Complainants and I exchanged further emails, March 18, March 22, and April 1.

25. On April 21, the Complainants submitted two complaint forms, one alleging a breach of section 1.2 of the Code of Conduct and the other alleging a breach of section 1.3. Because they relied on the same facts and were based on the same materials, I exercised my discretion to treat them as one Complaint.

26. After considering the allegations in the Complaint, I determined that I would conduct an inquiry into whether section 1.3 was contravened. In particular, I decided to inquire into whether, contrary to section 1.3 of the Code of Conduct, the Respondent used the influence of office for a purpose other than the exercise of official duties, namely, to further the interests of the Bruce Trail Conservancy.

27. I exercised my Municipal Act discretion not to include section 1.2 in the inquiry. Section 1.2 is the purpose section of the Code. A purpose section does not create stand-alone, enforceable obligations; consequently, the purpose section cannot be contravened. A purpose section can, however, be used to interpret other provisions of the Code.⁴

28. I issued a Notice of Inquiry to the parties. The Notice included the Complaint material, set out the issues in the inquiry, and identified the allegation that I would not consider.

29. On June 1, the Respondent asked for clarification of the Complaint. The Respondent subsequently determined that clarification was unnecessary for him to respond, and submitted a Response on June 2.

30. The Complainants replied to the Response, June 6. Also on June 6, the Complainants clarified that their Complaint included improper sharing of their personal information with the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club without the Complainants’ permission. I have considered this additional allegation under section 1.5 of the Code.

31. Following the clarification, the Respondent had nothing to add.

32. I interviewed the Respondent and one of the Complainants. I interviewed Town personnel. I reviewed documents, Council minutes and agenda, and a recording of the March 9, 2021, Council meeting. I examined photographic evidence, maps, and Google Street View images. I examined all the submissions of the parties.

33. I determined that it was not necessary to interview representatives of the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club. I have no reason to believe that these organizations possess evidence relevant to the Code of Conduct.

34. The parties had full and fair opportunities to provide evidence and to state their positions on the issues in this inquiry. While this report summarizes the evidence and the argument, and does not mention everything I considered, the report is based on all the documents, all the interviews, and all the submissions of the parties.

35. In this report, when quoting from documents, I follow my usual practice of correcting immaterial grammatical and spelling errors and editing capitalization and punctuation for consistency.

Positions of the Parties

Complainants’ Position

36. The Complainants submit that the Respondent placed the interests of the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club, of which he is a member, ahead of conscientious and diligent service to constituents. In particular, they believe that the Respondent had “put the interest of the Bruce Trail [Conservancy] before that of two residents of Mono, us, who have written to Council with serious concerns. He has an obligation to serve us first before the Bruce Trail [Conservancy].”

37. They also state that the Respondent “seems to value the Town’s relationship with the BTC [Bruce Trail Conservancy] more than our concerns as residents.”

38. The Complainants allege further that the Respondent used the influence of office “to put his personal needs and beliefs ahead of those of residents.” As evidence, they point to the accumulation of garbage in the parking lot, which they argue is a violation of the terms of the Bruce Trail Conservancy’s lease:

Mr. Nix stated that there is no garbage problem in the lot, though he stated he only visits it a couple times a year, versus us who see it 365 days a year. We have a huge amount of photos proving the garbage issue. Mr. Nix stated that the Bruce Trail [Conservancy] is in violation of its lease with the Town of Mono, as the garage in the lot is supposed to be picked up weekly. He stated that the [Conservancy] does not have the resources to do it, and there is no need to have it done. Mr Nix and all of Council have an obligation to enforce leases it negotiates with other parties on behalf of the residents. Mr. Nix has chosen to allow the Bruce Trail [Conservancy] to violate its lease agreement based solely on his statements and his visit to the lot a couple times a year, contrary to the physical evidence.

39. The Complainants observe that their concerns about the 7th Line parking lot were addressed differently than residents’ concerns about parking near Mono Cliffs Provincial Park. They state that the Town responded to the latter concerns (which they say were “similar [to the Complainants’ concerns] … though of a lesser magnitude” and even involved the OPP.

40. The Complainants further complain that the Respondent discredited the content of their letter, which they maintain was factual. They state that the Respondent should have ascertained the actual facts before speaking publicly. They claim that the Respondent instead made numerous inaccurate statements.

41. For example, the Complainants observe that the house across the road from the parking lot was built in 1975, a quarter-century before the Town sought Niagara Escarpment Commission approval to build the parking lot. In other words, the house pre-dates the parking lot. The Complainants submit that the Respondent should have verified the facts using Town records before claiming that the parking lot pre-dates the house.

42. The Complainants also submit that the Respondent’s words wrongly and unfairly implied that the residence across the road from the parking lot is not a “nice house.”

43. The Complainants later made the following submission which I have also considered as part of their Complaint:

In the video recording of the Council meeting held on 2021.03.09, Mr. Nix stated that he sent our letter with comments added by Fred Simpson (Clerk for the Town of Mono) to two Bruce Trail associations [i.e., the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club]. He did this without our permission, which we believe violates the Ontario Municipal Freedom of Information and Protection of Privacy Act. We wrote and spoke to Clerk Fred Simpson and requested copies of the correspondence sent to these two Bruce Trail associations by Mr. Nix. We were advised that there is no record of these correspondence being sent in the Town files. We have never heard from the town and/or the Bruce Trail [Conservancy] regarding our concerns so we can not accept that either took our concerns seriously.

Respondent’s Position

44. The Respondent is open about his active membership in the Bruce Trail Conservancy. (Indeed, his biography on the Town website mentions this fact.) He states that typically, when any matter that involves the Bruce Trail comes before Council, he informs Council Members and the public that he is a member.

45. In the words of the Respondent:

Does my being a member of the Bruce Trail influence my decisions before Council? Yes, I am sure it does on occasion. However, I would point out that furthering the interest of the Bruce Trail is (a) in the interests of the majority of Mono residents, and (b) is in accord with Section 18 of the Town’s Official Plan.

I want to be careful on the last point I just made. The fact that the Bruce Trail is mentioned in the Town’s OP and the fact that the Town has published the “Optimum Route” of the trail in its OP does not mean of and by itself that the Town endorses the Bruce Trail or does anything necessarily to further the interests of the Bruce Trail Conservancy. But it certainly means that the Town recognizes the Bruce Trail and has formalized this relationship by putting the trail in its Official Plan.

46. The Respondent notes that the Town enjoys an excellent relationship with the Bruce Trail Conservancy. As one example, he points to a recent (May 10) Council resolution that authorizes the Director of Public Works “to liaise directly with the Caledon Hills Bruce Trail Club to ensure Bruce Tail access points on Town land are adequately maintained.”

47. The Respondent is careful to point out that he is not a board member (director) of either the Caledon Hills Bruce Trail Club or the Bruce Trail Conservancy. He is only a member. He describes his role as follows:

… being “an active member” of the Bruce Trail means that I work as a land steward. I (along with my wife) am a trail captain, and I do general maintenance work on the Trail. … I am just a Bruce Trail volunteer – I have no influence on the decisions made and I am not in a position most of the time to even know what issues are being discussed or considered by the powers that be. The point is that I cannot “use the influence of my office” to further the interests of the Bruce Trail as I do not sit on any Bruce Trail decision-making bodies.

48. According to the Respondent, after the Complainants’ March 2021 letter was circulated to Council, the only action he took was to contact the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club, and to ask the Bruce Trail Conservancy to do something about it. In his words, “I used the ‘influence of my office’ to do exactly what I should have done – inform the BTC that we had a complaint and to ask the BTC to do something about it.”

49. The Respondent points out that, at the March 9, 2021, meeting, he introduced no motion related to the Complainants’ correspondence, and there was no motion on the floor. The only action taken was a request by the Mayor, on behalf of Council, asking the Director of Public Works to investigate.

Findings of Fact

50. Findings of fact appear in the Background section of this report, and below. Findings of fact are based on the standard of the balance of probabilities.

51. I find that the residence across the road from the 7th Line parking lot was constructed in 1975, decades before the parking lot existed.

52. I find that the Complainants have been consistent in communicating to Town officials their concerns about the 7th Line parking lot.

53. The Complainants’ March 1, 2021, letter was addressed to “Town of Mono.” The letter’s fifth line read, “Attention: Mayor Laura Ryan.” The salutation was, “Dear Mayor Ryan.

54. The letter was copied to the local MPP, the Honourable Sylvia Jones.

55. The two-page letter detailed a number of concerns that the Complainants said the Bruce Trail Conservancy had failed to address. The letter took the position that the Bruce Trail Conservancy was in breach of several Niagara Escarpment Plan provisions governing the development of Bruce Trail Access Points.

56. The letter ended by asking the Town of Mono, as property owner, to work with the Complainants “to solve and mitigate the issues.” The stated reason for turning to the Town was that, “the Bruce Trail [Conservancy] has failed to deal with the issues.”

57. In their letter, the Complainants requested six specific resolutions. One of the six resolutions explicitly required action by the Bruce Trail Conservancy. I find that implementation of at least two of the other requested resolutions would also have required the Conservancy’s cooperation.

58. A mayor, individually, lacks authority to make decisions on behalf of a municipality. Such authority belongs to the municipal council: Municipal Act, subsection 5 (1). Consequently, I find that it was reasonable for the Mayor and Clerk to treat the Complainants’ letter as correspondence to be shared with all of Council.

59. The Complainants’ letter, with their names and contact information removed, was published as part of the agenda package for the March 9, 2021, Council meeting. The agenda package was provided to Council Members and made public via online posting prior to the meeting. I find that, from the moment of publication, the Complainants’ letter entered the public domain.

60. The Respondent acknowledges that he communicated with the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club about the letter. He does not recall sharing the letter with either. While I find that it is probable he may have done so, this finding is academic given that the letter was in the public domain.

61. I find that, in participating in the Council discussion, the Respondent relied on his experience as a Conservancy and Club member and as a Bruce Trail volunteer. I also find that the Respondent relied on communications he had with the Conservancy and the Club, and that those communications were facilitated by his membership in the Conservancy and the Club.

Issues and Analysis

62. For the reasons that I have explained, this inquiry did not consider the Municipal Conflict of Interest Act. According to the MCIA, if a Council Member is a member of a body that has a pecuniary interest in a matter before Council, then the Council Member must declare an indirect pecuniary interest in the matter and must withdraw from participation in decision making and voting.

63. I have considered the following issues:

A. Is the Respondent responsible under the Code for the acts and omissions of the Town and/or Council as a whole?

B. Does the Code of Conduct allow an Integrity Commissioner to apply the common law rules on prejudgment and personal interest?

C. Did the Respondent contravene section 1.3 of the Code by using the influence of office for a purpose other than the exercise of official duties, namely, to further the interests of the Bruce Trail Conservancy?

D. Did the Respondent contravene section 1.5 of the Code by sharing the Complainant’s letter?

A. Is the Respondent responsible under the Code for the acts and omissions of the Town and/or Council as a whole?

64. No.

65. Several of the Complainants’ concerns are with the Town as owner of the parking lot. For example, the Complainants say that the Conservancy is in default of its obligations and they want the Town, as property owner, to do something.

66. The Respondent is just one member of Council among five. As a individual, he has no authority. It is Council as a whole, acting collectively, that decides for the Town.

67. The fact that the Respondent is a member of the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club does not give him additional responsibility for Council decisions.

68. A person who takes issue with a decision (whether by act or omission) of the municipality, acting through Council, may not bring a Code of Conduct complaint against an individual Council Member, even if the individual Member is alleged to have been responsible for the collective decision: Foster v. Chapman, 2020 ONMIC 17, at paras. 97-100.

69. Those of the Complainants’ issues that are with the Town and/or Council do not support a finding that the Respondent individually contravened the Code.

B. Does the Code of Conduct allow an Integrity Commissioner to apply the common law rules on prejudgment and personal interest?

70. No.

71. This was not an MCIA inquiry. The MCIA imposes a clear restriction on a Council Member who is a member of a body that has a pecuniary interest in a matter that comes before Council. (I should add that, because this was not an MCIA matter it was not necessary for me to find whether the Conservancy or the Caledon Hills Bruce Trail Club had a pecuniary interest, in other words, a financial interest, in the Complainants’ correspondence or in the March 9, 2021, Council discussion. This report contains no such finding.)

72. The MCIA, focused on pecuniary interest, is not, however, the only restriction on councillors’ participation in decision making. The common law rules on bias are expansive enough to cover the non-pecuniary interests of members. These include the prejudgement (closed-mind) rule and the personal-interest rule.

73. According to the prejudgement (closed-mind) rule, a municipal council member is disqualified by reason of bias if the council member has prejudged the matter to be decided to the extent that he or she has a closed mind and is no longer capable of being persuaded.⁵

74. The personal-interest rule requires that municipal councillors refrain from dealing with matters in respect of which they have a personal interest or other interest.⁶ A disqualifying personal interest (personal interest that that leads to bias or the reasonable perception of bias) may also result from a councillor’s association with a party or the councillor’s personal hostility to a party.⁷

75. It is clear that these common law rules exist and are enforced by the Courts. It is far from clear that an Integrity Commissioner has jurisdiction to apply them: Re Wilson, 2017 ONMIC 13, at paras. 113-124.

76. There is support for the proposition that, in interpreting a Code of Conduct, an Integrity Commissioner may apply common law principles – but application of the common law is confined to the scope of the statutory mandate.⁸

77. Nothing in the Municipal Act or the Town’s Code of Conduct provides that an Integrity Commissioner may enforce the common law rules on bias as if they were part of the Code. No rule in the Code deals with prejudgement of decisions (closed mind) or personal-interest bias. Despite the common law principles, I have no authority under the Code to deal with these matters.⁹

78. What this means is that, as Integrity Commissioner, I lack jurisdiction to consider whether the Respondent’s membership in the Conservancy and the Club trigger either the common law’s prejudgement (closed-mind) rule or the common law’s personal-interest bias rule. Only the Courts can make such determinations.

79. Because an Integrity Commissioner cannot make those findings, this report must not be interpreted as any sort of comment on whether the Respondent had a closed mind on issues pertaining to the Conservancy and the Club or whether the Respondent possessed a non-pecuniary personal interest giving rise to bias.

C. Did the Respondent contravene section 1.3 of the Code by using the influence of office for a purpose other than the exercise of official duties, namely, to further the interests of the Bruce Trail Conservancy?

80. No.

81. I understand that Complainants’ concern. They wrote a letter to the Town, seeking assistance from the Town because, in the Complainants’ view, the Bruce Trail Conservancy had failed to address their concerns. Then, at the Council meeting where the Complainant’s correspondence was discussed, a Council Member (the Respondent), who happens to be a member of the Bruce Trail Conservancy, articulated the position of the Conservancy. During the course of those remarks, the Council Member alternated between referring to the Conservancy in the third person (“they”) and using the first person (“we”) in an ambiguous manner that created reasonable doubt whether “we” meant the Town or the Conservancy.

82. Given the optics, I understand the Complainants’ concern.

83. Nevertheless, the issue here is not optics, but whether the language of the Code of Conduct was breached. (As already explained, the MCIA and the common law are not being considered.) The relevant provision of the Code is the final sentence of section 1.3, which reads: “No member shall use the influence of office for any purpose other than the exercise of their official duties.”

84. As I have found at paragraph 61, in participating in the Council discussion, the Respondent relied on his experience as a Conservancy member and Club member and as a Bruce Trail volunteer. He also relied on communications he had with the Conservancy and the Club, communications that were facilitated by his membership in those bodies. The fact that the Respondent relied on his experience, his communications, and his membership, does not, however, mean that the Respondent had stepped outside his official role as a Council Member. On the contrary, he was relying on his Bruce Trail involvement in order to inform his role as a Council Member.

85. Apart from the common law rules on prejudgment and on personal interest (rules that only the Courts can uphold) and apart from the MCIA (which is not part of this inquiry), nothing prevents Council Members from applying their lived experiences, their backgrounds, and their particular priorities to their roles as Council Members. As was observed in Re Wilson, 2017 ONMIC 13, at para. 89, “it is reasonable and appropriate for Council Members to rely on their knowledge and experience in arriving at positions.”

86. I have also considered the allegations that the Respondent made inaccurate statements, such as the comment that the parking lot pre-dated the house across the road. I understand the Complainants’ submission that it is desirable for Council Members to confirm facts before speaking. Failure to do so does not, however, contravene the Code. The Code of Conduct does not give the Integrity Commissioner jurisdiction to police the truth of political speech: Re Maika, 2018 ONMIC 11, at paras. 123-144.

D. Did the Respondent contravene section 1.5 of the Code by sharing the Complainant’s letter?

87. The Respondent acknowledges discussing the letter with the Bruce Trail Conservancy and the Caledon Hills Bruce Trail Club. I find it probable that he shared the letter for the purposes of discussion, but that finding is academic for the reasons below.

88. Assuming that the Respondent did share the letter, in doing so he did not contravene section 1.5 of the Code.

89. The letter was a public document published as part of the public agenda of an open and public Council meeting. Section 1.5 refers to “information, documentation or deliberation received, reviewed or taken in closed session of Council and its committees” [emphasis added]. The letter was not a closed session item.

90. Section 1.5 also applies to “any confidential information acquired by virtue of … office” and “information that is confidential.” Material published as part of the public agenda package does not meet either description.

91. Section 1.5 states further that: “Particular care should be exercised in ensuring confidentiality of the following types of information: … Information defined as ‘personal information’ under the Municipal Freedom of Information and Protection of Privacy Act.” I note that personal information of the Complainants was removed before their letter was published in the agenda package.

92. I short, I do not believe that a Council Member contravenes the confidentiality provision of the Code of Conduct by sharing information published in the public agenda package of an open meeting.

93. I also note that this published letter related directly to the Bruce Trail Conservancy and requested several resolutions that would have required action by the Conservancy. In this context, sharing with the Conservancy and its affiliated Club was not contrary to the Code.

94. My conclusion is limited by my jurisdiction as Integrity Commissioner, which is to interpret and apply the Code of Conduct. Integrity Commissioners have no jurisdiction under the Municipal Freedom of Information and Protection of Privacy Act.

95. The Information and Privacy Commissioner, who is an officer of the Legislature, interprets and applies MFIPPA. Nothing in this report should be interpreted as touching on the IPC’s functions. If they believe that the Town breached MFIPPA, then the Complainants are free to pursue such remedies as may be available from the IPC.

Content

96. 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 Mono

August 9, 2022

Appendix: Excerpts from Code of Conduct

Preamble

1.2 A written Code of Conduct helps to ensure that the members of Council and Local Boards share a common basis for acceptable conduct. These standards are designed to provide a reference guide and a supplement to the legislative parameters within which the members must operate. These standards should serve to enhance public confidence that the Town’s elected representatives operate from a base of integrity, justice and courtesy.

General

1.3 The Town of Mono Council Code of Conduct is a general standard that augments the provincial laws and municipal by-laws that govern conduct. It is not intended to replace personal ethics. All members shall serve their constituents in a conscientious and diligent manner. No member shall use the influence of office for any purpose other than the exercise of their official duties.

Confidentiality

1.5 All information, documentation or deliberation received, reviewed or taken in closed session of Council and its committees are confidential, except as otherwise directed by Council.

Members shall not disclose or release by any means to any member of the public either in verbal or written form any confidential information acquired by virtue of their office, except when required by law to do so.

Members shall not permit any persons other than those who are entitled thereto to have access to information that is confidential.

Particular care should be exercised in ensuring confidentiality of the following types of information:

• Labour negotiations

• Information about suppliers provided for evaluation which might be useful to other suppliers

• Matters relating to the legal affairs of the Town

• Sources of complaints where the identity of the complainant given in confidence

• Items under negotiation

• Information defined as “personal information” under the Municipal Freedom of Information and Protection of Privacy Act

This list is provided for example and is not inclusive. Requests for information should be referred to the Office of the Clerk to be addressed as a formal request under the Municipal Freedom of Information and Protection of Privacy Act.

Footnotes

1. 1Municipal Act, subsection 223.4.1 (4).
2. 2The Complainants provided their own transcript, which was extremely helpful. My transcript is similar but not identical. The differences between the two are not material to my conclusions.
3. 3I am aware that some Integrity Commissioners consider section 223.4.1 of the Municipal Act to be merely an optional process to address MCIA issues. See, for example, Staff v. Swartman (October 5, 2021), a report of Township of Wollaston Integrity Commissioner Robert Swayze. The analysis in that report is unpersuasive and misapprehends the intention of the Legislature in enacting section 223.4.1. If Code of Conduct inquiries could encompass MCIA allegations, then anyone could circumvent the six-week deadline to allege an MCIA breach simply by filing a Code of Conduct complaint. That obviously is not what the Legislature has intended. I choose to adhere to the legislation and decline to adopt Mr. Swayze’s approach.
4. 4Re Beyak et al., 2018 ONMIC 8, at paras. 28-37.
5. 5Save Richmond Farmland Society v. Richmond (Township), 1990 CanLII 1132 (SCC), [1990] 3 S.C.R. 1213 at 1124; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 S.C.R. 1170 at 1196-1197.
6. 6Old St. Boniface Residents Assn. Inc., note 11, at 1196. See also: Hon. J. Douglas Cunningham, “Ruling on Conflict of Interest” (July 8, 2010), pp. 6-9, Appendix J, Report of the Mississauga Judicial Inquiry: Updating the Ethical Infrastructure (2011), at 377-380.
7. 7Hutterian Brethren Church of Starland v. Starland (Municipal District), 1993 ABCA 76, at para. 36, citing Griffith & Street’s Principles of Administrative Law, 4th ed. (1967), at 156-157.
8. 8Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at 629, para. 45, and at 632, para 54.
9. 9Re Wilson, 2017 ONMIC 13.