CITATION: Kroetsch v. Integrity Commissioner for the City of Hamilton, 2021 ONSC 7982
DIVISIONAL COURT FILE NO.: 419/20, 504/20
DATE: 20211215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Penny, Sutherland and Favreau JJ.
BETWEEN:
Cameron Kroetsch
Applicant
– and –
The Integrity Commissioner for the City of Hamilton, Principles Integrity and City of Hamilton
Respondents
Nick P. Papageorge and Wade R. Pozimka, for the Applicant
Jill Dougherty, Lara Kinkartz and Marie-Pier Nadeau, for the Respondents
HEARD at Toronto (by videoconference): June 7, 2021
Favreau J.
Overview
[1] The applicant, Cameron Kroetsch, is the Chair of the City of Hamilton’s Lesbian, Gay, Bisexual, Transgender and Queer Advisory Committee (the “LGBTQ Advisory Committee”). After conducting an investigation, the Integrity Commissioner for the City of Hamilton issued a report, finding that the applicant contravened the applicable code of conduct by communicating confidential information to the media and others. The City’s Council received the report and decided to reprimand the applicant.
[2] The applicant seeks to judicially review the Integrity Commissioner’s report and the City’s decision to reprimand him. He argues that the Integrity Commissioner did not have jurisdiction to investigate the complaint because it is not a “local board” as defined in the Municipal Act, 2001, S.O. 2001, c.25, and because the City’s by-laws only allow the Integrity Commissioner to investigate council members. He also argues that the processes followed by the Integrity Commissioner and the City were procedurally unfair.
[3] For the reasons that follow, I would dismiss the application for judicial review.
Background Facts
The LGBTQ Advisory Committee
[4] The LGBTQ Advisory Committee is one of several advisory committees established by the City for the purpose of addressing issues of equity and inclusion faced by the City. Pursuant to the City’s Equity and Inclusion Policy, the advisory committees’ mandate is to provide advice and recommendations:
The Advisory Committees to Council provide advice and recommendations to City Councillors, management and staff in order to address the specific issues and concerns facing diverse communities. They provide advice for formulating policies, key directions and decisions intended to improve the quality of life for everyone. Council recruits and/or appoints people to these Committees who reflect the diversity of the City's communities in order to enhance public engagement in the City's business.
[5] The LGBTQ Advisory Committee’s own mission statement is “to eliminate barriers experienced by LGBTQ communities by giving voice to the perspectives of LGBTQ individuals and evaluating the City on its related efforts. The Committee does this by making recommendations to Council and staff in order that the City of Hamilton will excel in providing services to and interfacing with members of the LBGTQ communities.”
[6] The City is not required to act on any of the LGBTQ Advisory Committee’s recommendations and the Committee has no power to implement policies.
[7] The City’s By-Law No. 18-270 gives the City authority to establish advisory committees. The By-Law explicitly requires that members of advisory committees abide by a code of conduct. The code of conduct is attached as Appendix I to the By-Law and requires, amongst other matters, that members of an advisory committee “not disclose to any member of the public any confidential information acquired by virtue of their position”.
City’s referral of concerns over the applicant’s conduct to the Integrity Commissioner
[8] In February 2020, at a closed door meeting, City Council considered concerns it had regarding actions of the LGBTQ Advisory Committee and its Chair, the applicant. One of the concerns was that the applicant posted an unredacted copy of a motion considered by the Committee on his personal Twitter account. The motion included the identify and personal information of an individual. The City clerk had notified the applicant that, before the motion could be made public, the information identifying the individual should be redacted under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. The Council was also concerned about negative comments the applicant made about Council during a radio interview and a number of other matters.
[9] In late February 2020, the Council passed a resolution directing that the Commissioner investigate the applicant’s conduct. At the same time, the City passed a resolution to amend the Integrity Commissioner’s scope of work “to include authority over members of Citizen Committee members”.
[10] The City has a contract with Principles Integrity to act as its Integrity Commissioner.
[11] On March 4, 2020, City staff, acting on behalf of Council, sent a formal complaint against the applicant to the Integrity Commissioner setting out its various concerns with the applicant’s conduct.
Integrity Commissioner’s Investigation
[12] In a letter dated March 27, 2020, the Integrity Commissioner wrote to the applicant outlining the complaint. The Commissioner’s letter included the following description of the complaint:
We are in receipt of a complaint submitted to us by the City Clerk on behalf of the Council of the City of Hamilton which asserts that you have inappropriately used your position as Chair of the Committee including by improperly and publicly criticizing and/or disparaging Council decisions or processes, and that you have improperly publicly disclosed personal information about identifiable individuals contrary to the Municipal Freedom of Information and Protection of Privacy Act. The complaint asserts that your conduct in this regard may have been contrary to the Hamilton Advisory Committee/Task Force Code of Conduct.
[13] The Commissioner’s letter also included a copy of all documents received from the City. The Commissioner advised the applicant they were in the initial stages of investigating the complaint, and invited the applicant to provide his position, including through a meeting via videoconference.
[14] Soon after the Commissioner sent this letter to the applicant, the applicant’s lawyer raised an issue about the Commissioner’s jurisdiction to investigate the complaint. He did so on two grounds. First, he took the position that the LGBTQ Advisory Committee is not a “local board” under section 223.3(1) of the Municipal Act, 2001, which sets out the power of a municipal integrity commissioner to investigate misconduct. He also argued that the City’s own by-laws only provided for the Commissioner to investigate the conduct of Council members, and not the conduct of members of an advisory committee. The applicant also provided a written response to questions posed by the Commissioner in the letter of March 27, 2020.
[15] In an email dated June 8, 2020, the Commissioner responded to the issue of jurisdiction as follows:
As the City’s appointed integrity commissioner we have full authority to make inquiries with respect to code conduct and conflict of interest matters related to Members of Council and members of the City’s local boards. The LGBTQ Advisory Committee is a local board of the City o Hamilton. Our jurisdiction is not a matter of delegated authority – the role is established by the Municipal Act and the City has not limited our jurisdiction in any way.
As background we are attaching the City’s report authorizing our appointment, which was adopted by Council at its meeting of February 26 and 27, 2020. We also received specific authorization from Council with respect to its complaint respecting Mr. Kroetch.
[16] Following this exchange, the Commissioner interviewed the applicant on June 10, 2020.
[17] On June 25, 2020, the applicant’s counsel wrote the Commissioner inquiring about the next steps in the process. The Commissioner responded that they were still conducting interviews and nothing further was required from the applicant at that time. The Commissioner also stated that “if we find that a recommendation report to Council is required, we will be providing a draft findings report to you and your client for a response prior to finalizing any resulting recommendation report.”
[18] On August 14, 2020, the Commissioner provided a draft report to the applicant, requesting that he provide comments by August 28, 2020. The draft report included two proposed findings of misconduct, but did not include the Commissioner’s recommendations flowing from these findings. The first finding related to the statements the applicant made during a radio interview and the second finding related to the posting of the full unredacted LGBTQ Advisory Committee motion on the applicant’s Twitter account.
[19] In an email dated, August 31, 2020, the applicant, through his counsel, provided a detailed response to the Commissioner’s draft report. In his submissions, the applicant stated that the draft report narrowed the allegations against him and this was the first opportunity he had to respond to the specific issues identified by the Commissioner. In addition, he asked that the Commissioner acknowledge and respond to his submissions before providing the report to Council. He also asked that his submissions be provided to Council with the Commissioner’s finalized report.
[20] The Commissioner completed a final report on September 24, 2020. The final report is very similar to the original draft the Commissioner sent to the applicant.
[21] In the final report, the Commissioner described the jurisdiction to conduct the investigation on the basis that the LGBTQ Advisory Committee “is a local board to which the code of conduct and oversight by the integrity commissioner apply”.
[22] The report also described the complaint against the applicant as misusing his position by improperly and publicly criticizing Council and improperly publicly disclosing personal information about identifiable individuals. The report then distilled these two areas of concern to three separate incidents, including the radio interview and the posting of the motion on Twitter. The Commissioner went on to find that the applicant breached the code of conduct in both these incidents.
[23] The Commissioner then recommended that Council reprimand the applicant, and that the applicant be encouraged to resign or that Council remove him from his position as Chair of the LGBTQ Advisory Committee.
City Council’s decision
[24] The Integrity Commissioner’s report was placed on the agenda for a Council meeting on September 30, 2020. The agenda also included 23 pieces of correspondence from members of the public commenting on the Commissioners’ report.
[25] At the meeting, Council passed a resolution to receive the report. Council members had a lengthy debate about whether to accept the Integrity Commissioner’s recommendations. Ultimately, Council passed a resolution to reprimand the applicant “as it relates to the breach of privacy under the Municipal Freedom of Information and Protection of Privacy Act”. The Council did not accept the Integrity Commissioner’s recommendation that it reprimand the applicant in relation to the interview nor did it accept the recommendation that the applicant be removed from his position.
Analysis
[26] The applicant does not challenge the reasonableness of the Integrity Commissioner and City Council’s finding that he breached the code of conduct and that he should be subject to a reprimand. Rather, the applicant challenges the decisions on grounds of jurisdiction and procedural fairness. Specifically, the applicant raises the three following issues:
a. The Integrity Commissioner did not have jurisdiction to conduct the investigation;
b. The Integrity Commissioner did not accord the applicant procedural fairness; and
c. Council did not accord the applicant procedural fairness.
[27] For the reasons that follow, I find that the Integrity Commissioner had the authority to conduct the investigation, and the processes followed by the Commissioner and the Council were procedurally fair.
Issue 1 - The Integrity Commissioner had jurisdiction to conduct the investigation
[28] The applicant argues that that the Integrity Commissioner did not have jurisdiction over the complaint for two reasons. First, the applicant argues that, while the Municipal Act, 2001 gives the Integrity Commissioner the power to investigate the conduct of “local boards”, the LGBTQ Advisory Committee is not a local board. Second, the applicant argues that the City by-law authorizing the Integrity Commissioner to conduct an investigation restricts the Integrity Commissioner’s jurisdiction to investigations of Council members.
[29] I address both arguments separately below. However, first, I address the standard of review applicable to these issues.
Standard of review
[30] The parties agree that the applicable standard of review is reasonableness.
[31] Indeed, as held by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the scope of a decision maker’s authority is generally a matter of statutory interpretation and therefore not what had previously been described as an issue of “true jurisdiction” to be reviewed on a standard of correctness. In Vavilov, at para. 68, the Supreme Court held that the reasonableness of the decision maker’s interpretation of his or her authority will depend on whether the grant of authority is phrased in restrictive or broad terms:
Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker — perhaps limiting it one. Conversely, where the legislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect.
[32] In addition, at para. 119, the Court held that administrative decision makers are not required or expected to engage in a formalistic exercise of statutory interpretation. However, as stated at para. 120, “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision.”
[33] In this case, given the nature of the decision making process, the reasons on the issue of the Integrity Commissioner’s authority to investigate a complaint against the LGBTQ Advisory Committee are scant. The Integrity Commissioner addressed the issue in a couple of paragraphs addressed to the applicant’s counsel and in one line in the report, and Council did not explicitly address the issue at all. As held in Vavilov, at para. 137, in such circumstances, the court should look at the record as a whole to assess the reasonableness of the decision.
The Integrity Commissioner has authority under the Municipal Act, 2001
[34] As reviewed above, the Integrity Commissioner and the City take the position that the Commissioner had the authority to investigate the complaint made against the applicant on the basis that the LGBTQ Advisory Committee is a “local board” as defined in the Municipal Act, 2001. In my view, this conclusion is reasonable.
[35] Part V.1 of the Municipal Act, 2001 addresses the role of Integrity Commissioners in municipalities in Ontario. This part is titled “Accountability and Transparency” and was amended in 2017 to require all municipalities to establish codes of conduct and appoint an integrity commissioner.
[36] Section 223.2 of the Municipal Act, 2001 requires municipalities to establish a code of conduct that applies to council members and members of “local boards”.
[37] Section 223.3 requires all municipalities to appoint an integrity commissioner. One of the integrity commissioner’s functions is to report to council on the “application of the code of conduct for members of council and the code of conduct for members of local boards”.
[38] Section 1 of the Municipal Act, 2001 defines “local board” as follows:
“local board” means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority
[39] This definition of “local board” applies throughout the statute. In addition, section 223.1 of the Act excludes a number of specifically listed entities from the definition of “local board” for the purpose of Part V.1 of the Act. The exclusions include children’s aid societies, local health boards and police services boards.
[40] The Integrity Commissioner and the City take the position that the LGBTQ Advisory Committee is a “local board” as defined in the Municipal Act, 2001. They argue that the Municipal Act, 2001 was amended in 2017 for the purpose of increasing public accountability. The definition of “local board” should be interpreted expansively and generously for the purpose of achieving this goal.
[41] The applicant argues that the definition of “local board” should be interpreted in a manner consistent with the listed examples in the definition. They argue that the interpretative principle of ejusdem generis precludes interpreting the definition of “local board” to include advisory committees such as the LGBTQ Advisory Committee because the other listed entities have decision making powers and are not just advisory. The applicant also argues that, if the LGBTQ Advisory Committee and other advisory committees are treated as a “local board”, this may put a chill on people volunteering for these committees because they will feel constrained in their ability to speak out.
[42] I am satisfied that the Integrity Commissioner’s interpretation of local board is reasonable because it is supported by the language of the definition and the general statutory scheme.
[43] While municipalities are creatures of statute and they may not exercise any powers besides those prescribed by statute, it is clear that the courts have recognized that the powers given to municipalities under the Municipal Act, 2001 should be interpreted broadly and purposively to allow municipalities to achieve their goals: Fourth Generation Realty Corp. v. Ottawa (City), 2005 16568 (On. CA), para. 31.
[44] This principle is reinforced by section 8(1) of the Municipal Act, 2001, which provides that the “powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues”.
[45] In this case, the definition of “local board” is expansive on its face. After listing several specific entities, the definition refers to “…any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities…” [emphasis added]. On a plain reading, this broad definition would include a committee such as the LGBTQ Advisory Committee. The City established the Advisory Committee utilizing its powers under the Municipal Act, 2001 for the purpose of obtaining advice on issues of equity and inclusion. This goal relates to the City’s ability to meet its obligations to all members of the community thereby relating to the City’s affairs and purposes.
[46] As indicated above, the applicant relies on the interpretive principle of ejusdem generis to argue that the definition of a “local board” does not include advisory committees such as the LGBTQ Advisory Committee. As described in Ontario Ombudsman v. Hamilton (City), 2018 ONCA 502, at para. 9, this interpretive principle provides that “[w]here a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items”. In that case, the Court of Appeal considered whether the City’s Audit Committee and Standards Committee were local boards under the Municipal Act, 2001, and thereby subject to oversight by the Ombudsman under the Part V.1 of the Act. In that context, the Court held that, standing alone, the “general language” at the end of the definition of “local board” would support the expansive approach proposed by the Ombudsman. However, that language could not be read in isolation; it had to be read in the context of the specific entities identified as a “local board” in the definition. At para. 10, the Court identified the commonality between the listed entities as being “integral to the day-to-day operation of the business of municipalities”. The Court held that the Audit Committee and Standards Committee did not provide the same kinds of services because they were independent investigative and/or adjudicative bodies.
[47] In my view, the Court of Appeal’s decision in Ontario Ombudsman does not assist the applicant. The LGBTQ Advisory Committee is not an independent investigative or adjudicative body. It therefore does not operate separately from the City. On the contrary, as reviewed above, its function is to provide advice on matters that are integral to the day-to-day operations of the City.
[48] The applicant relies on the decisions in Westfall v. Eedy, (1991) 1991 7284 (ON SC), 6 O.R. (3d) 422 (Ont. Ct. (Gen. Div.)) and Mangano v. Moscoe, (1991) 1991 7344 (ON SC), 4 O.R. (3d) 469 (Ont. Ct. (Gen. Div.)) to argue that the distinction between a decision making body and an advisory body should lead to a finding that the LGBTQ Advisory Committee is not part of the same class of entities as those listed prior to the general language in the definition of “local board”. Both those cases dealt with similar definitions of “local board”. In Westfall, the court held that a municipal Local Architectural Conservation Authority Committee was not a local board because it did not have decision making powers. In Mangano, the court held that the Vending Sub-Committee of a municipal Transportation Committee was not a local board because it was not a “autonomous decision-making or action-taking” entity. The applicant submits that the same applies here; the LGBTQ Advisory Committee has no decision making powers and therefore it is not a local board.
[49] I do not accept this argument. Westfall and Mangano were not decided under the Municipal Act, 2001, which, pursuant to section 8, is to be read expansively and purposefully to achieve its purposes, and which now includes Part V.1 that emphasizes the need for transparency and accountability. In addition, in Ontario Ombudsman, which was decided long after Westfall and Mangano and in the context of the Municipal Act, 2001, the Court of Appeal emphasized that the commonality between the listed entities is not their independent decision making powers but, rather, that they are “integral to the day-to-day operation of the business of municipalities”. In this case, the LGBTQ Advisory Committee is not an ad hoc informal committee. It was established by the City’s By-Law 18-270, which prescribes the Committee’s governance structure, reporting structure, budget allocation and other matters related to the functions and operation of the Committee. In addition, the By-Law requires members of the Committee to abide by a code of conduct. In this sense, the Committee has a measure of independence, but it is integral to the day-to-day business of the City.
[50] The applicant also argues that treating the LGBTQ Advisory Committee as a local board will put a chill on volunteers because it will place limits on their perceived ability to speak freely. However, this argument is not supported by the accountability measures in place for members of the Committee. The applicant agreed to be bound by the code of conduct applicable to the City’s citizens’ committees. The applicant does not challenge the City’s authority to impose a code of conduct on Committee members. The applicant does not challenge the City’s ability to investigate allegations of misconduct. Rather, he takes issue with the Integrity Commissioner’s authority to conduct the investigation, suggesting that an employee of the City could conduct the investigation. The identity of the person or body who can conduct the investigation is irrelevant to whether members of the committee may feel constrained in their ability to speak freely. More importantly, relying on the Integrity Commissioner to conduct the investigation creates some distance between the City and the entity investigating the complaint.
[51] In this case, the system worked as it should. The Integrity Commissioner received and investigated the complaint. The Commissioner made findings of misconduct against the applicant and made recommendations to City Council about how to deal with those findings. Council debated the issues, and accepted one aspect of the Commissioner’s recommendation but rejected the balance of the recommendations. It is hard to see how or whether a different outcome would have been achieved if a City employee had conducted the investigation. In such circumstances, one might expect that the applicant would have complained that the investigation was not independent.
[52] In my view, it was reasonable for the Integrity Commissioner and the City to conclude that the Commissioner has the authority to conduct an investigation into allegations that the applicant breached the code of conduct. The definition of “local board” is broad enough to support this conclusion and allowing the Integrity Commissioner to conduct such investigations fits with the purpose of Part V.1 of the Municipal Act, 2001.
[53] As an alternative to the argument that the LGBTQ Advisory Committee is a local board, the City argues that it has authority to request that the Integrity Commissioner investigate allegations of misconduct against the applicant as part of its general powers to manage its affairs. While not necessary given my finding that the LGBTQ Advisory Committee is a local board, I accept this argument. As indicated above, the applicant does not dispute that the City can impose a code of conduct on the Committee’s members. The corollary to this concession is that the City is entitled to investigate any alleged breach of the code of conduct. Sections 9 and 10 of the Municipal Act, 2001 give the City general powers to manage its affairs. Section 9 provides that a “municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act”, and section 10(1) gives the City the power to “provide any service or thing that the municipality considers necessary or desirable for the public”. Nothing would preclude the City, in managing its affairs, from requesting the Integrity Commissioner to investigate the complaint against the applicant.
[54] Accordingly, I find that it was reasonable for both the Integrity Commissioner and the City to conclude that the Commissioner had the authority to investigate the allegations of misconduct made against the applicant.
The Integrity Commissioner’s authority is not constrained by By-Law 16-288
[55] The applicant argues that, even if the LGBTQ Advisory Committee is a local board, in this case the Integrity Commissioner did not have authority to investigate his conduct because the City’s by-law appointing the Integrity Commissioner only allows the Commissioner to investigate allegations of misconduct by Council members. I do not accept this argument.
[56] The stated purpose of By-Law 16-288 is to “Establish and Govern the Office of Integrity Commissioner and Provide for the Resolution of Allegations of Contravention of the code of conduct by Members of Council”. Section 8 of the By-Law states that the Integrity Commissioner’s role “is to help ensure that Members Council [sic] perform their functions in accordance with the code of conduct, and other applicable procedures, rule and policies governing ethical behaviour”.
[57] In my view, the specific references in the By-Law to the Integrity Commissioner’s authority to investigate Council Members do not preclude the Integrity Commissioner from also investigating the conduct of local board members, including members of the LGBTQ Advisory Committee.
[58] First, as reviewed above, section 223.3(1) the Municipal Act, 2001 authorizes a municipality to appoint an integrity commissioner for the purpose of reporting to a municipality’s council on the conduct of council members and local board members. Therefore, the City’s authority to appoint the Integrity Commissioner to investigate the applicant’s conduct derives directly from the Municipal Act, 2001.
[59] Second, in this case as reviewed above, at the time City Council decided to investigate the applicant’s conduct, it also passed a resolution amending the Integrity Commissioner’s scope of work to include investigating the conduct of citizen’s committees. Therefore, regardless of the wording in By-Law 16-288, City Council explicitly gave the Integrity Commissioner authority to conduct the investigation. The wording of By-Law 16-288 is not restrictive. It does not say that the Integrity Commissioner can only investigate the conduct of Council members. Therefore, there was nothing precluding City Council in February 2020 from amending the scope of work to include an investigation into the applicant’s conduct.
[60] Accordingly, I do not accept the applicant’s argument that the By-Law precluded the Integrity Commissioner from investigating his conduct.
Issue 2 -The process followed by the Integrity Commissioner was fair
[61] The applicant argues that the process followed by the Integrity Commissioner was procedurally unfair because he was not given an opportunity to properly respond to the allegations against him. I do not agree.
Standard of review
[62] There is no standard of review on matters of procedural fairness. As held in Vavilov, courts are to determine procedural fairness on the basis of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-22.
[63] In Di Biase v. City of Vaughan, 2016 ONSC 5620 (Div. Ct), this court considered the duty of procedural fairness in the context of an Integrity Commissioner's investigation and report under the Municipal Act, 2001. Di Biase determined that integrity commissioners have relatively low obligations of procedural fairness. The Integrity Commissioner's process is investigatory and the Commissioner may only make recommendations
The process followed by the Integrity Commissioner was fair
[64] I reject the applicant’s arguments that the process followed by the Integrity Commissioner was unfair. The Commissioner gave the applicant notice of the complaint against him, including the documents submitted by City staff. The Commissioner gave the applicant an opportunity to respond to the complaint both in writing and during a verbal interview. Once the Commissioner completed the investigation, the applicant was given a copy of the draft report and an opportunity to comment on the report. The applicant provided extensive comments on the draft report before the Commissioner finalized and submitted the report to Council. On its face, this was a fair process.
[65] The applicant argues that the Integrity Commissioner’s process was unfair because he was led to believe that the Commissioner was initiating an informal resolution process and not a formal investigation. The Commissioner’s initial letter of March 27, 2020 does not support this contention. While the letter sets out the general process the Integrity Commissioner intended to follow as including attempting to resolve the complaint without a formal investigation, the Commissioner made no commitment or representations that they would notify the applicant if they determined that it was not possible to resolve the matter informally. In any event, this was the initial letter in the process. As reviewed above, the Commissioner gave the applicant an opportunity to comment on the draft report before it was finalized, at which point it was clear that the Commissioner had conducted a formal investigation.
[66] The applicant also argues that the Integrity Commissioner’s process was unfair because he only found out about the real nature of the complaints against him at the time the Commissioner sent the draft report. This is not supported by the documents the Commissioner sent to the applicant with the letter of March 27, 2020. The letter included the City staff’s complaint, which included several supporting documents. While the Commissioner may have reframed the characterization of the events that led to the complaint, the basis for the complaint was not unknown or hidden from the applicant. More importantly, again, the applicant had a full opportunity to respond to the draft report before it was finalized.
[67] Finally, the applicant complains that the final report does not sufficiently consider his submissions and that he was not given an opportunity to address the proposed penalties in the final report. While the final report is very similar to the draft report, it does refer to the applicant’s submissions. Notably, the applicant does not dispute the facts on which the Commissioner’s findings are founded. With respect to the recommended penalties, the Commissioner does not have the authority to impose any penalties; this is left up to Council. As reviewed below, it was open to the applicant to comment on the proposed penalty.
[68] In my view, the process followed by the Integraty Commissioner was procedurally fair.
Issue 3 -- The process followed by Council was fair
[69] The applicant argues that the process followed by Council was procedurally unfair because Council did not give him an opportunity to make submissions.
[70] There was nothing preventing the applicant from making submissions to Council. The agenda for the meeting was public and circulated beforehand. In fact, numerous people made written submissions to Council in advance of the meeting. The applicant could also have made submissions.
[71] The record shows that Council thoroughly debated the report, considering the comments received from the public. Ultimately, Council accepted some aspects of the Commissioner’s recommendations and rejected others.
[72] The process followed by Council was procedurally fair. The applicant could have participated in the process if he had chosen to do so.
Conclusion
[73] For the reasons above, the application for judicial review is dismissed.
[74] As the successful parties, the respondents are entitled to costs of $15,000 all inclusive, payable within 30 days.
Favreau J.
I agree _______________________________
Penny J.
I agree _______________________________
Sutherland J.
Released: December 15, 2021
CITATION: Kroetsch v. Integrity Commissioner for the City of Hamilton, 2021 ONSC 7982
DIVISIONAL COURT FILE NO.: 419/20, 504/20
DATE: 20211215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Penny, Sutherland and Favreau JJ.
BETWEEN:
Cameron Kroetsch
Applicant
– and –
The Integrity Commissioner for the City of Hamilton, Principles Integrity and City of Hamilton
Respondents
REASONS FOR decision
Favreau J.
Released: December 15, 2021