CITY OF Peterborough INTEGRITY COMMISSIONER, Guy Giorno

Citation: Ayotte v. Akapo et al., 2022 ONMIC 8 Date: March 30, 2022

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://pub-peterborough.escribemeetings.com/FileStream.ashx?DocumentId=32063 (see minutes of April 25, 2022, page 4, Report CLSCLK22-013)

TABLE OF CONTENTS

Complaint 3

Summary. 3

Background. 4

Process Followed. 6

Positions of the Parties. 8

Complainant’s Position. 8

Respondents’ Positions. 10

Findings of Fact 10

Issues and Analysis. 10

A. Does the Integrity Commissioner have jurisdiction to investigate whether a Council resolution was lawfully passed?. 11

B. Can the statements of principle in section 5 form the basis of a complaint?. 13

C. Do sections 8 and 9 of the Code allow me to enforce the Procedure By-law?. 14

D. Do the allegations in the Complaint disclose abuse, bullying, intimidation, discrimination, or harassment, contrary to section 10?. 14

Conclusion. 14

Content 14

Appendix 1: Excerpts from Procedure By-law.. 15

Appendix 2: Excerpts from Council Code of Conduct 17

Complaint

1. The Complainant, Mr. Paul Ayotte, alleges that the following Respondents contravened sections 5, 8, 9, and 10 of By-Law Number 19-028, the City of Peterborough Council Code of Conduct: Councillor Kemi Akapo, Councillor Gary Baldwin, Councillor Keith Riel, Mayor Diane Therrien, Councillor Stephen Wright, and Councillor Kim Zippel.

2. Section 32 of By-law 2019-028 requires me to “report to Council respecting each complaint given to the Integrity Commissioner.” No exception is made for complaints that are not investigated.

3. The report contains my reasons for exercising my discretion not to conduct an inquiry into the Complaint.

Summary

4. Mr. Ayotte alleges that the manner in which two portfolio Chairs and one standing committee Chair were removed and replaced in January was unlawful.

5. He brought a Complaint to the Integrity Commissioner under the Council Code of Conduct.

6. I have determined that, even if every fact that Mr. Ayotte alleges is capable of proof, there was no breach of the Code of Conduct and this is not a matter within the Integrity Commissioner’s jurisdiction.

7. The Complaint is essentially a challenge to the lawfulness of the January appointments decision, made by a majority of Council and then confirmed by a confirming by-law. An Integrity Commissioner has no jurisdiction to overturn a Council decision, or to find that Council’s decision was unlawful.

8. If a Council decision is illegal, then section 273 of the Municipal Act provides that a remedy should be sought in the Superior Court of Justice. The judicial process, and not an Integrity Commissioner inquiry, is the place to allege that a municipal council acted unlawfully.

9. It is true that the Code of Conduct says Members must copy with the Procedure By-law, but that does not give the Integrity Commissioner jurisdiction to enforce the Procedure By-law. Responsibility for applying the Procedure By-law belongs to the presiding officer who is chairing a meeting.

10. Moving, seconding, or voting on a motion is not a contravention of the Code of Conduct. An Integrity Commissioner has no jurisdiction over how someone votes.

11. Complaints, inquiries, and penalties arising from how people vote at meetings would be undemocratic and contrary to the Municipal Act.

12. Unfortunately, the Complainant was informed by the Office of the Ombudsman of Ontario that this matter falls within the jurisdiction of a municipal Integrity Commissioner. The information provided to the Complainant was regrettable and wrong. The boundaries of an Integrity Commissioner’s jurisdiction are fixed by the Municipal Act, not by the Ombudsman.

Background

13. On December 6, General Committee considered Report COU21-003 (Council Appointments to Committees and Boards). The Report, submitted by the Mayor, recommended approval of a series of appointments for a term ending November 15, 2022.

14. In the Background section of her report, the Mayor explained the appointments as follows:

The tradition in the City is for the Mayor to recommend the appointment of Members of Council to various committees and local boards, as well as liaisons to various municipal service areas (portfolios) of the Corporation. The recommendations in this report reflect the recommendations of the Mayor for 2021-2022 appointments. These appointments end on November 15, 2022, or as recommended by the Mayor.

Chairs of Standing Committees of Council are expected to oversee the meetings of the Standing Committee in accordance with the applicable legislation and the Procedure By-law.

Chairs of Portfolios act as a liaison with the Commissioner of the Portfolio, thereby developing more knowledge of the policy issues. The Chair, having the enhanced knowledge of the Portfolio, can then act as the Portfolio Liaison during Committee, Council or Community Meetings.

15. The specific appointments recommended by the Mayor included: appointments of two chairs and two vice-chairs of standing committees; appointments of two deputy mayors; appointments of 18 portfolio chairs, one portfolio co-chair and two portfolio vice-chairs; 28 appointments to 13 advisory committees; 28 appointments to 13 corporations and legislatively mandated committees, boards and authorities; and 18 appointments to 11 liaison committees. In total, 101 appointments were recommended. (I have not counted the appointments of all Council Members to sit on both Finance Committee and General Committee.)

16. Eight of these 101 specific appointments were as follows: Dean Pappas as Finance Committee Chair, Keith Riel as Finance Committee Vice-Chair, Dean Pappas as Chair of Finance,¹ Andrew Beamer as Chair of Fire Services, Kim Zippel as Vice-Chair of Fire Services, Lesley Parnell as Chair of Planning, Diane Therrien as Vice-Chair of Planning, and Lesley Parnell as member of the Planning Advisor Committee.²

17. A motion to approve the appointment recommendations of Report COU21-003 was moved by Councillor Zippel and carried on an 11-0 vote.³

18. At the December 13 Council meeting, a motion to approve the appointment recommendations was moved by Councillor Pappas, seconded by Councillor Clarke, and carried.⁴ No recorded vote was requested.

19. The following month, Mayor Therrien presented Report COU22-001 (Council Appointments to Committees and Boards) to General Committee. Her report recommended five appointments (not counting the appointment of all Council Members to Finance Committee): Keith Riel as Finance Committee Chair, Gary Baldwin as Finance Committee Vice-Chair, Kim Zippel as Chair of Fire Services, Diane Therrien as Chair of Planning, and Diane Therrien as member of the Planning Advisory Committee.

20. January’s five recommended appointments were different than the December appointments to these positions (described in paragraph 16). The January recommendations did not mention a Vice-Chair of Fire Services or a Vice-Chair of Planning (though, in each case, the December Vice-Chair appointee was the January Chair appointee). The portfolio of Chair of Finance (to which Dean Pappas was appointed in December) was not explicitly mentioned in the January recommendations.

21. The Background section of Report COU22-001 was almost identical to the Background section of Report COU21-002. The sole difference was the sentence: “The recommendations in this report reflect the recommendations of the Mayor for 2022 appointments.” In the December report, the same sentence referred to “2021-2022 appointments.”

22. Report COU22-001 was considered by General Committee on January 17. The motion of Mayor Therrien to approve the appointments recommended in her report was carried on a 6-5 vote. The six Respondents to this Complaint voted in favour of the motion. The remaining Council Members voted against.⁵

23. During the January 31 Council meeting, a motion to approve the appointment recommendations was moved by Councillor Akapo, seconded by Councillor Zippel, and carried on the same 6-5 vote.⁶

24. At the end of its January 31 meeting, on a 10-1 vote, Council enacted By-law Number 22-006, Being a by-law to confirm the proceedings of the Council at its regular meeting held on January 31, 2022.

25. Councillor Beamer is General Committee Chair and he presided over the December 6 and January 17 meetings. He voted for the December recommendations and against the January recommendations. The Complaint does not name Councillor Beamer as a Respondent.

Process Followed

26. Under the Municipal Act, an Integrity Commissioner has discretion to determine whether or not to conduct an inquiry.

27. Mr. Ayotte first emailed me about the situation on February 15. He did not mention the Code of Conduct. He did not identify a Respondent. He did not submit a complaint form or any of the complaint form’s required content. At the time, I received his communication for information.

28. Council may wonder why I would accept a communication for information instead of trying to covert it into an official complaint. Under the Municipal Act, an Integrity Commissioner should not go fishing for complaints. Subsection 223.4(1) of the Act is clear: someone must request an inquiry.

29. Further, an Integrity Commissioner who actively solicits a complaint compromises the ability to conduct a fair and objective inquiry. In an inquiry, an Integrity Commissioner must be objective and neutral. The requirement of neutrality means that I must not encourage someone to bring a complaint and I must not discourage someone from bringing a complaint. If a complaint is made, then I will process it fairly. In the meantime, the most that I can do is to explain the process and let potential complainants make their own decisions.

30. I also note that the cost of Integrity Commissioner inquiries is borne by municipal ratepayers. (The Province has mandated Codes of Conduct and Integrity Commissioners but provides no additional funding.) Most municipalities pay for Integrity Commissioner services on an as-needed basis. An Integrity Commissioner should process the complaints that are submitted, and not foment complaints to generate additional business.

31. On March 28, Mr. Ayotte informed me that his communication is to be treated as a complaint. He identified Councillor Akapo, Councillor Baldwin, Councillor Riel, Mayor Therrien, Councillor Wright, and Councillor Zippel as the six Respondents.⁷ He cited the following provisions of the Code of Conduct: paragraphs 5 b), 5 c), 5 d), and 5 e), and sections 8, 9, and 10.⁸

32. Mr. Ayotte did not submit a complaint form, but by March 28 he had provided all the content the complaint form requires. I therefore determined that I would process his Complaint, and assigned it file number 2022-02-CC. CC stands for Code of Conduct. The Complaint date is deemed to be March 28.

33. Upon receiving a Complaint, I review it to determine whether to conduct an inquiry under section 223.4 of the Municipal Act, and if so, into which allegations. The determination is based on whether the particulars of each allegation, if substantiated, would be sufficient to support a contravention of a provision of the Code.

34. If I proceed, then I issue a Notice of Inquiry to the Complainant and the Respondent(s). If I decide not to inquire, then I issue a Notice of Determination not to Conduct Inquiry, and send it to the parties. In Peterborough, the Code of Conduct requires that I report to Council on every complaint that is received, whether or not an inquiry is conducted.

35. In making this determination, I have assumed that all the allegations in the Complaint are true or capable of proof. This is the usual approach taken in a legal proceeding 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.

36. This report is the Notice of my determination that I will not conduct an inquiry, including the reasons for my determination. It is being provided to the parties and to Council.

37. In light of my determination, it is not necessary for me to invite the Respondents to address the Complaint.

Positions of the Parties

Complainant’s Position

38. The Complainant’s position is that it was not possible to make the January appointments without a two-thirds vote to rescind, reconsider, repeal, or amend the December decision.

39. He cites the Procedure By-law, By-law Number 21-104, as amended. Relevant provisions of the Procedure By-law are reproduced in Appendix 1.

40. The Complainant’s position is that the same Council cannot appoint three Chairs in December for a term to November 15, 2022, and then in January appoint three more Chairs to the same positions, to a term to November 15, 2022, “without either rescinding, reconsidering, repealing, or amending a motion previously adopted.” He states that a motion to rescind, reconsider, repeal, or amend would have required a two-thirds vote.

41. The Complainant alleges: “Because these motions require a 2/3 vote and the Mayor knew she would not get those votes to accomplish her vindictive action, they slipped it through by not following the rules.”

42. He points out the subsection 238(2) of the Municipal Act mandates the adoption of a by-law governing procedure. According to the Complainant, the content should include: putting questions; notices of motion, and matters which may be introduced orally without written notice and without leave; motions and amendments; powers of reconsideration; and appointments to boards and commissions.

43. The Complainant states that the purpose of subsection 238(2) and the Procedure By-law is, “so that we as taxpayers have a reasonable expectation as to how the business of the municipality shall be conducted.”

44. It is implicit, he argues, that Council will follow the prescribed procedure; in this case that did not occur.

45. He notes: “Parliamentary Procedure is intended to ensure the rule of the majority while protecting the rights of the minority and absent members.”

46. He also cites Robert’s Rules of Order (the authority identified in section 32 of the Procedure By-law), Revised 11th Edition, at page 111: “Unless an adopted main motion specifies a time for termination of its effect it continues in force until it is rescinded.”

47. Following the December appointments, he states, the reasonable expectation of the taxpayers was that certain Chairs would be in place through to November 15, 2022.

48. The Complainant notes that the January motions did not reference replacement of the existing Chairs, so the original Chairs’ appointments are still valid. Consequently, the December appointments were not properly rescinded, or repealed, and there are now two Finance Committee Chairs, two Chairs of Fire Services, and two Chairs of Planning.

49. The Complainant describes what happened as a “miscarriage.” He states that the integrity of the three Council Members removed as Chairs has been called into question.

50. The assessment of the Complainant is as follows:

We have a situation that is very strange, the motive behind which questionable, the execution of which defies procedure and allowing it to continue would set a precedent for slippery politics in future.

The motion was proposed in this manner to bypass the procedure bylaw because the Mayor knew that by following procedure she would not get the required 2/3 vote to reconsider, rescind, or amend something previously adopted by this council per the City of Peterborough Procedure Bylaw #21-04 Section 25.2 Motions to Amend or Rescind a Resolution.

The procedure for previous notice in the City of Peterborough Procedure Bylaw #21-04 section 25.3 the Procedure Bylaw was not followed to legitimize a majority vote.

There is no way an elected person, especially the Mayor, should be allowed to manipulate procedures to satisfy their vindictive ends.

This sets a very disturbing precedent if allowed to stand.

51. On the issue of whether the Complaint lies within the Integrity Commissioner’s jurisdiction, he explains: “I have contacted Catherine Healy-Varley at the Ombudsman’s office … and was told this was not something they would look into and was advised to contact the Integrity Commissioner.”

52. The Complainant cites paragraphs 5 b), 5 c), 5 d), and 5 e), and sections 8, 9, and 10 of the Code. The relevant Code provisions are reproduced in Appendix 2.

53. The Code describes paragraphs 5 b), 5 c), 5 d), and 5 e) as “statements of principle.” The principles that the Complainant cites pertain to performing functions with integrity, avoiding improper use of the influence of office, avoiding conflicts of interest, performing duties and arranging private affairs in a manner that promotes public confidence and that will bear close public scrutiny, “act[ing] upon the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible,” and upholding both the letter and spirit of federal and provincial laws and of the City’s by-laws and policies.

54. Section 8 requires that a Council Member comply with the Code of Conduct and “all other policies and procedures adopted or established by Council affecting the Member.”

55. Section 9 provides that at Council and Committee meetings each Member must act in accordance with the Procedure By-law and other applicable laws.

56. Section 10 prohibits abuse, bullying, intimidation, and harassment.

Respondents’ Positions

57. Given my disposition of the complaint, I have not asked the Respondents to respond.

Findings of Fact

58. As explained at paragraph 32, I have assumed that all the allegations in the Complaint are true or capable of proof.

59. This means I have assumed, for the purposes of this determination, that the Complainant would be able to prove that the Mayor acted vindictively in recommending the new appointments, able to prove that the Mayor was aware it was impossible to secure two-thirds support for the January recommendations, and able to prove that the Respondents knowingly did not follow the Procedure By-law.

Issues and Analysis

60. I have considered the following issues:

A. Does the Integrity Commissioner have jurisdiction to investigate whether a Council resolution was lawfully passed?

B. Can the statements of principle in section 5 form the basis of a complaint?

C. Do sections 8 and 9 of the Code allow me to enforce the Procedure By-law?

D. Do the allegations in the Complaint disclose abuse, bullying, intimidation, discrimination, or harassment, contrary to section 10?

A. Does the Integrity Commissioner have jurisdiction to investigate whether a Council resolution was lawfully passed?

61. No.

62. While this Complaint comes before me in the form of allegations that six Council Members contravened the Council Code of Conduct, in substance the Complaint is not really about individual Council Members or about the Code of Conduct. The gist of the Complainant’s concern is that the Council majority acted (in his view) unlawfully, contrary to the Procedure By-law, and contrary to proper parliamentary procedure.

63. The Complaint does not merely ask me to find that six individuals contravened the Code. It is asking me to find that Council’s January 31 appointments were unlawful – a result that would mean not just overturning the appointment resolution, but also overturning By-law Number 22-006.

64. Nothing in the Municipal Act permits an Integrity Commissioner to second-guess the decision-making process of Council, let alone to determine that a Council resolution or by-law is invalid.

65. Section 273 of the Act makes clear that the challenge of a Council decision must be made before the Court, not before an Integrity Commissioner:

Application to quash by-law

273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.

Definition

(2) In this section,

“by-law” includes an order or resolution.

66. A long line of Integrity Commissioner reports takes the position that Integrity Commissioners should not interfere in procedural matters arising in Council and in committee. For example, in the City of Toronto, Integrity Commissioners have consistently taken the position that they do not have jurisdiction over what occurs during Council and committee meetings. Professor David Mullan, the first municipal Integrity Commissioner ever appointed in Canada, noted that the Municipal Act requires that each municipality pass a procedure by-law and that the procedure by-law provides a clear mechanism for enforcing order and conduct rules during meetings. Integrity Commissioner Mullan concluded:

In general, the Integrity Commissioner does not have authority under the Code of Conduct to review complaints about the behaviour of Councillors at Council and Committee meetings. The behaviour of Councillors at Council, while regulated by the Code of Conduct, is the responsibility of Council (acting primarily through the Mayor or his deputy). Absent a resolution of Council requesting the Integrity Commissioner to become involved, this self-policing is part of the statutory rights and privileges of Council.⁹

67. Subsequently, Toronto’s Interim Integrity Commissioner Lorne Sossin¹⁰ (now Justice Sossin), Integrity Commissioner Janet Leiper¹¹ (now Justice Leiper), and Integrity Commissioner Valerie Jepson¹² all declined to exercise jurisdiction over Council Members’ conduct during meetings. As Integrity Commission Jepson explained:

The strong policy principle behind this approach is that the Integrity Commissioner ought not to interfere with the conduct and management of any particular meeting. This makes good sense. The Speaker, or any Chair of a meeting, requires a certain degree of autonomy to ensure that a meeting is conducted in accordance with the procedural bylaw and as specifically stated therein, to oversee order and behaviour of members (s. 27‑43(C)). … There would be little gained by a subsequent referral to the Integrity Commissioner to review the actions.¹³

68. The Toronto line of cases has been followed in many other municipalities, where it has been held that an Integrity Commissioner lacks jurisdiction to enforce procedural by-laws, unless a Council, in the clearest of language, confers that authority: Miller v, Bath-Hadden, 2020 ONMIC 12, at para. 61; Dhillon v. Moore, 2018 ONMIC 15, at paras. 73-82; Moore v. Maika, 2018 ONMIC 7, at paras. 64-73; Re Kett (No. 2), 2017 ONMIC 14, at para. 18.

69. An example of express Council authorization is Young v. Burton, 2011 ONMIC 1. In that case, Oakville Council had actually adopted a motion telling its Integrity Officer to investigate a purely procedural matter (namely, whether Council meetings had been properly cancelled according to the rules).¹⁴

70. Even though a Council Code of Conduct may include reference to the Procedure By-law, the assumption is that the presiding officer of a meeting, not the Integrity Commissioner, has authority to enforce the Procedure By-law: Harding v. Neal, 2021 ONMIC 5, at paras. 76-79.

71. The same applies in committee. “An Integrity Commissioner should not assume procedural powers that belong to committee chairs”: Stewart v. Meadows, 2021 ONMIC 17, at para. 68.

72. I am aware of one case, Re Craig, 2017 ONMIC 1, in which an Integrity Commissioner purported to interpret and apply a City’s Procedural By-law – purported to determine, of all things, whether the Mayor was an ex-officio member of a committee. The report cites no jurisprudence and undertakes no jurisdictional analysis. It is not a reliable authority on the scope of an Integrity Commissioner’s jurisdiction, and I decline to follow it.

73. The following are the actions of the individual Respondents that, according to the Complaint, allegedly violated the Code: One Respondent (Therrien) moved a motion in committee. One Respondent (Akapo) moved a motion at Council and another Respondent (Zippel) seconded it. All six Respondents voted for the motions in General Committee and at the Council meeting. Moving, seconding, or voting on a motion is not a contravention of the Code of Conduct. An Integrity Commissioner has no jurisdiction over how someone votes.

74. Subsection 223.4(5) of the Municipal Act permits penalties (including suspension of pay) if Council Members contravene the Code of Conduct. If how a Council Member votes could constitute a contravention of a Code of Conduct, then how a Council Member votes could result in a reprimand or monetary penalty. Penalizing elected officials because of how they vote would be undemocratic and contrary to the Municipal Act.

75. I am aware that the Office of the Ombudsman of Ontario informed the Complainant that this matter falls within the jurisdiction of a municipal Integrity Commissioner. This was unfortunate. The information provided by the Ombudsman to the Complainant was regrettable and wrong. The boundaries of an Integrity Commissioner’s jurisdiction are fixed by the Municipal Act, not by the Ombudsman.

B. Can the statements of principle in section 5 form the basis of a complaint?

76. No.

77. Statements of principle are important aids to interpreting the other sections of the Code, but they cannot, on their own, give rise to allegations of breach (in any event, not allegations that would lead to an inquiry): Anderson, D. v. Pinto (No. 2), 2021 ONMIC 34, at para. 35; Newman v. Brown, 2021 ONMIC 11, at paras. 55-59; Jacobs v Gardhouse, 2021 ONMIC 1, at paras. 65-67; Singh v. Sprovieri, 2018 ONMIC 20, at paras. 68-77; Re Partner, 2018 ONMIC 16, at paras. 30-33; Re Beyak et al., 2018 ONMIC 8, at paras. 28-36; Re Durham Region (Council Member), 2018 ONMIC 3, at paras 30-37; Re Kett (No. 2), 2017 ONMIC 14, at paras. 150-157; Re Wilson, 2017 ONMIC 13, at paras. 118-123; Re Ford, 2013 ONMIC 12.

C. Do sections 8 and 9 of the Code allow me to enforce the Procedure By-law?

78. No.

79. For the reasons outlined in paragraphs 66 to 70, above, even though the Code of Conduct says Council Members must comply with the Procedure By-law, this does not mean that the Integrity Commissioner has jurisdiction to enforce the Procedure By-law. The responsibility to enforce the Procedure By-law rests with the presiding officer who is chairing each meeting.

D. Do the allegations in the Complaint disclose abuse, bullying, intimidation, discrimination, or harassment, contrary to section 10?

80. No.

81. The allegations in the Complaint do not disclose abuse, bullying, intimidation, discrimination, harassment, or any other conduct contrary to section 10 of the Code.

Conclusion

82. For these reasons, I have exercised my discretion not to conduct an inquiry.

Content

83. 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

City of Peterborough

March 30, 2022

ADDENDUM: APRIL 1, 2022

84. After receiving a copy of this report, the Complainant, as is his right, emailed to express disagreement with the conclusion. The Complainant argued that the result is not consistent with paragraphs 1 and 2 of subsection 223.3(1) of the Municipal Act.

223.3(1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to any or all of the following:

1. The application of the code of conduct for members of council and the code of conduct for members of local boards.

2. The application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council and of local boards.

[emphasis added]

85. In making my determination, I have assumed that the Complainant’s principal allegation – that the Respondents knowingly failed to comply with the Procedure By-law for an unethical purpose – is capable of proof. I have taken this into account. It does not change the fact that I must stay in my lane. An Integrity Commissioner lacks jurisdiction to determine whether a Council resolution was lawful. The allegation that non-compliance with the Procedure By-law was unethically motivated does not create jurisdiction where I have none.

86. Independence and jurisdiction are different concepts. An Integrity Commissioner must perform in an independent manner the functions within the Integrity Commissioner’s jurisdiction. Independence is not licence to exercise functions outside the scope of the authority conferred by by-law and the Municipal Act. Integrity Commissioners must stay in their lane.

Appendix 1: Excerpts from Procedure By-law

2.16 Motion

“Motion” means a proposal by a Member to adopt, amend or otherwise deal with a matter at a Meeting.

2.17 Motion to Reconsider

“Motion to Reconsider” means a Motion to return to subject matter already disposed of at that Meeting.

2.18 Motion to Rescind

“Motion to Rescind” means to repeal or revoke a Resolution passed at a previous meeting by the same or previous Council

2.30 Two-Thirds Vote

“Two-thirds vote” means an affirmative vote of at least two-thirds of the Members present and voting

3. Waiving Rules

3.1 Two-thirds vote

The rules and regulations contained in this by-law shall be observed in all proceedings of the Council, and, with necessary modifications, of its Standing and Advisory Committees, unless suspended by a Two-Thirds vote in any case, for which provision is not made herein

5.2 Motions

It shall be the duty of the Chair to receive and submit to a vote, in the proper manner, all Motions which do not contravene the Rules of Procedure of the Council and to announce the results.

5.3 Motions - Declined

It shall be the duty of the Chair to decline to put to a vote Motions that infringe upon the Rules of Procedure.

16.2 Motion

A Majority Vote is required to pass a Motion except as otherwise provided in this by-law or by Statute

20. Suspension of Rules

20.1 Requires Two-Thirds Vote

A Motion to suspend the Rules of Procedure shall not be debatable or amendable and shall require a Two-Thirds Vote. A Motion to Suspend the Rules of Procedure shall be undertaken with due consideration and shall not be abused by Members.

20.2 Motion to Rescind - non-applicable

A Motion to Rescind a Resolution shall not be applied to a Motion to suspend the Rules of Procedure.

24. Motion to Reconsider

24.1 Reconsider Motion from Same Meeting

A Motion to Reconsider:

a) Is debatable,

b) Cannot be amended,

c) Must be made by a Member of Council who was on the prevailing side of the vote for the matter proposed to be reconsidered,

d) Requires a Majority Vote,

e) Cannot interrupt pending business,

f) If voted on and lost, cannot be revisited.

25. Motion to Amend or Rescind a Resolution

25.1 Motions forwarded to Council from Standing Committees are not Motions to Amend or Rescind a Resolution.

25.2 A Motion to amend or rescind a Resolution without notice at a previous Council meeting requires a Two-Thirds Vote.

25.3 A Motion to amend or rescind a Resolution, introduced by way of a Notice of Motion at a Council Meeting, advising the Motion will be dealt with at a future Council Meeting, requires a Majority Vote.

25.5 If a Motion to Amend or Rescind a Resolution is decided in the affirmative:

a) reconsideration of the Resolution shall become the next order of business, unless the Motion specifies the Resolution will be dealt with at a future date.

b) The reconsideration renders the Resolution, either whole or in part, to not have occurred.

29. Standing Committees

29.1 Composition

Standing Committees shall be comprised of all the Members of Council.

29.2 Appointment

The Chairs of the Standing Committees shall be appointed by Council, on the recommendation of the Mayor.

31. Rules of Procedure - Committee

31.1 Observed

The Rules of Procedure and the conduct of Members shall be observed in Meetings of the Standing Committees and Advisory Committees, with necessary modifications, and except as provided in this by-law.

31.5 Reconsideration

At the request of any Member of the Committee present, any item already considered at that Meeting may be re-opened upon a Two-Thirds Vote.

32. Robert’s Rules of Order

In all unprovided cases in the proceedings of the any Meeting, resort shall be had to the Robert’s Rules of Order (11th edition) as a rule for guidance on the question, and in such cases, the decision of the Chair shall be final.

Appendix 2: Excerpts from Council Code of Conduct

Principles upon which this Code of Conduct is Based

4. Improving the quality of municipal administration and governance can best be achieved by encouraging high standards of conduct on the part of all municipal officials. In particular, the public is entitled to expect the highest standards of conduct from the Members whom they elect to local government. In turn, adherence to these standards will protect and maintain the City’s reputation and integrity.

5. Key statements of principle that underlie this Code of Conduct are as follows:

a) Members must serve and be seen to serve their constituents in a conscientious and diligent manner;

b) Members must be committed to performing their functions with integrity, avoiding the improper use of the influence of their office, and conflicts of interest;

c) Members are expected to perform their duties in office and arrange their private affairs in a manner that promotes public confidence and that will bear close public scrutiny;

d) Members must recognize and act upon the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible; and

e) Members must seek to serve the public interest by upholding both the letter and spirit of the laws of Parliament and the Ontario Legislature, as well as the laws and policies adopted by the Council.

Adherence to Council Policies and Procedures

8. Each Member must observe and comply with every provision of this Code of Conduct as well as with all other policies and procedures adopted or established by Council affecting the Member. This Code of Conduct prevails to the extent of any inconsistency between this Code of Conduct and any of the aforementioned policies or procedures.

Conduct at Meetings

9. Each Member must conduct herself or himself properly and in a civil manner at Council, Committee and other meetings, and in accordance with the provisions of the City’s Procedure By-law, this Code of Conduct, and other applicable law.

Conduct Respecting Others

10. Each Member has the duty and responsibility to treat members of the public, each other Member and staff appropriately and without abuse, bullying or intimidation, and to ensure that the City’s work environment is free from discrimination and Harassment. Without limitation, a Member must not:

a) use indecent, abusive or insulting words or expressions toward any other Member, any member of staff or any member of the public;

b) speak in a manner that is discriminatory to any individual, based on that person's race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability; or

c) engage in any Harassment of any other Member, any member of staff or any member of the public.

Footnotes

1. 1Chair of Finance was Councillor Pappas’s portfolio appointment, and Chair of the Finance Committee was his committee appointment.
2. 2Chair of Planning was Councillor Parnell’s portfolio appointment, and member of the Planning Advisory Committee was an appointment to a legislatively mandated committee.
3. 3General Committee Minutes (December 6, 2021), pp. 7-13.
4. 4City Council Minutes (December 13, 2021), pp. 14-19.
5. 5General Committee Minutes (January 17, 2022), pp. 2-3.
6. 6City Council Minutes (January 31, 2022), p. 5.
7. 7I am listing the Respondents alphabetically. Should the sequence matter, I note that the Complainant listed the Respondents in the order Therrien, Riel, Baldwin, Akapo, Zippel, and Wright.
8. 8Specifically, the Complainant wrote, “I guess under the Code of Conduct you could start with section 5 paragraphs b, c, d, and e along with sections 8, 9, and 10.”
9. 9City of Toronto, Report on Complaint (April 6, 2005), Integrity Commissioner David Mullan, at 4.
10. 10City of Toronto, Integrity Commissioner Annual Report-2009 (July 29, 2009), Interim Integrity Commissioner Lorne Sossin, at 12.
11. 11City of Toronto, Integrity Commissioner Annual Report-2010 (June 28, 2010), Integrity Commissioner Janet Leiper, at 4.
12. 12City of Toronto, Report from the Integrity Commissioner on Violation of Code of Conduct: then-Mayor Rob Ford (September 22, 2015), Integrity Commissioner Valerie Jepson, at 10.
13. 13Ibid. Note that in Toronto a Speaker chairs meetings of Council.
14. 14Town of Oakville, Council Minutes, Fifteenth Meeting – Regular Session (May 16, 2011), Agenda Item 1.