Court File and Parties
CITATION: Budarick v. The Corporation of the Township of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2021 ONSC 8034
DIVISIONAL COURT FILE NO.: DC-21-2676
DATE: 2021/12/06
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Andrea Emma Budarick, Respondent (Appellant)
AND
The Corporation of the Township of Brudenell, Lyndoch and Raglan (Integrity Commissioner), Applicant (Respondent in appeal)
BEFORE: Justice R. Ryan Bell
COUNSEL: Angela Chaisson for the Appellant
Raivo Uukkivi and Jennifer Evola for the Integrity Commissioner, Respondent in appeal
Tim Harmar for the Township of Brudenell, Lyndoch and Raglan
HEARD: December 3, 2021
ENDORSEMENT
Overview
[1] The moving party, Ms. Budarick, is a member of Council for the Township of Brudenell, Lyndoch and Raglan. Ms. Budarick seeks a stay pending her appeal of the judgment of James J. dated November 22, 2021. The application judge found that Ms. Budarick had violated the conflict of interest provisions of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (the “MCIA”) and ordered that Ms. Budarick’s position on Council be declared vacant for the remaining term of Council, effective Sunday, November 28, 2021. The declaration of a vacancy triggers the process under s. 263(5) of the Municipal Act, 2001, S.O. 2001, c. 25: within 60 days after the day a declaration of vacancy is made, the municipality shall appoint a person to fill the vacancy or pass a by-law requiring a by-election be held to fill the vacancy.
[2] Ms. Budarick and the Integrity Commissioner for the Township[^1] attended on an urgent case conference before me on November 26, 2021. On that date, I ordered that there be an interim stay of the judgment pending the hearing of this motion and that the Township be given notice of the proceedings as a potentially affected party.
[3] The appeal is scheduled to be heard on an expedited basis on January 18, 2022.
[4] The three-part test for obtaining a stay of a judgment pending appeal is (i) is there a serious question to be determined on the appeal, (ii) will the moving party suffer irreparable harm if the stay is not granted, and (iii) does the balance of convenience favour granting the stay: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at p. 334; Yaiguaje v. Chevron Corporation, 2014 ONCA 40, at para. 3.
[5] In applying the three-part test, the court is mindful that “[t]hese three criteria are not watertight compartments. The strength of one may compensate for the weakness of another” and generally, “the court must decide whether the interests of justice call for stay”: 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, at para. 20, citing Circuit World Corporation v. Lesperance (1997), 1997 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677; BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16.
Serious question to be determined on the appeal
[6] The threshold to establish a serious question on the appeal is low. The motion judge must make a preliminary assessment of the merits of the case but only to the extent of determining that the issue on appeal is neither frivolous nor vexatious: RJR-Macdonald, at p. 337; 2257573 Ontario, at para. 22.
[7] In her notice of appeal filed November 24, 2021, Ms. Budarick alleges that the application judge erred both in his conclusion that she breached the MCIA and in ordering that she be removed from office. Ms. Budarick lists six errors: (i) that the application judge erred in his interpretation of the “matter under consideration” resulting in an incorrect finding that the MCIA precludes Ms. Budarick from asking questions about issues in the Fire Department, other than the matter in respect of which she had a conflict; (ii) that the application judge erred in his interpretation of the phrase “shall forthwith leave” in s. 5(2) of the MCIA as meaning that Ms. Budarick was not allowed to attend the closed session of Council at all; (iii) that the application judge erred in considering irrelevant evidence, that being Ms. Budarick’s letter to the office of the Fire Safety Commission; (iv) that the application judge erred in “enlarging” the scope of the Integrity Commissioner’s ability to bring an application on matters not covered in an underlying complaint; (v) that the application judge erred in finding that the breach, if committed, was intentional and not an error or an act of inadvertence; and (vi) that the application judge erred in his application of the penalty provisions of the MCIA.
[8] The Integrity Commissioner contends that because “[t]he appeal relies on misstatements and attacks factual findings without identifying a palpable and overriding error” there is no serious issue to be determined on the appeal. On the issue of penalty, the Integrity Commissioner submits that Ms. Budarick has not identified an error of law or principle in the exercise of discretion in the application judge’s consideration of the penalty imposed: City of Elliott Lake v. Pearce, 2021 ONSC 7859, at para. 48.
[9] The threshold at this stage is a low one and does not engage a detailed review of the merits: Magder v. Ford, 2012 ONSC 6929, at para. 3. It would be inappropriate for me, at this stage, to analyze the legal issues in any detail. Ms. Budarick’s appeal raises issues relating to the interpretation and application of the MCIA, including the application of the penalty provisions. I conclude that the appeal is neither frivolous nor vexatious. I therefore proceed to consider the second and third branches of the test for a stay pending appeal.
Irreparable harm
[10] Ms. Budarick asserts that the following irreparable harm will result if a stay pending appeal is not granted. First, if Ms. Budarick’s position on Council is declared vacant, within 60 days, the Township is required to appoint a person to fill the vacancy or initiate the process for the holding of a by-election. Under either scenario, constituents would be denied the right to their elected representative. Second, for whatever period the vacancy is allowed to persist, Council will be required to operate at a reduced capacity. Third, if the judgment is not stayed and the vacancy is filled, but thereafter the appeal is allowed and Ms. Budarick is restored to her position, significant uncertainty and ambiguity would result. Council could end up with two councillors for the same Council seat.
[11] I do not accept the submission that the process contemplated under the Municipal Act for filling a vacancy gives rise to irreparable harm. The removal of a member of council is contemplated in s. 259(1) of the Muncipal Act. It follows that until the vacancy is filled, there will be one less member of council.
[12] In my view, the concern raised by Ms. Budarick that Council for the Township could end up with two councillors for the same seat can be addressed by an order prohibiting the Township from taking steps to fill the vacancy in Ms. Budarick’s position on Council pending the determination of her appeal. By Council’s resolution dated December 1, 2021, Council agrees to be bound by such an order.
[13] Counsel for Ms. Budarick submitted that an order prohibiting the Township from taking steps to fill the vacancy was “without precedent” and would be “unnecessarily complicated.” Counsel for Ms. Budarick also submitted that I have no jurisdiction to make such an order.
[14] With respect, I disagree. In my view, the jurisdiction to make an order prohibiting the filling of a vacancy can be found in the broad language of s. 259(1)(f) of the Municipal Act. Section 259(1)(f) provides that the office of a member of council becomes vacant if the member has their office declared vacant in any judicial proceeding. The declaration of vacancy would be subject to the terms of the order made by the court. In addition, the court may also make an order prohibiting the filling of a vacancy pending the determination of an appeal pursuant to the court’s inherent jurisdiction in order to do justice between the parties.
[15] Far from being “unnecessarily complicated”, an order prohibiting the Township from filling Ms. Budarick’s vacancy pending the determination of her appeal presents itself as a practical means of addressing and, effectively eliminating, the irreparable harm Ms. Budarick claims she will suffer if the stay is not granted. Council has agreed to be bound by an order of this nature and the appeal will be heard in less than 60 days.
[16] The irreparable harm factor does not favour Ms. Budarick.
Balance of convenience
[17] The third branch of the test concerns the balance of convenience as between the parties, including which of the parties will suffer the greater harm from the stay being granted or refused: RJR-MacDonald, at p. 342.
[18] Ms. Budarick submits that in considering the balance of convenience as between the parties, I should consider that the allegations made against her fall on the “less severe” end of the spectrum. She also submits that a short stay until the appeal can be heard in mid-January and then determined, would not cause harm to the public interest. In support of her position that there would be no harm to the public interest caused by a brief stay, Ms. Budarick emphasizes that the allegations before the application judge are from September and October 2019 and that the Integrity Commissioner did not release her report until over a year later, in November 2020.
[19] In considering the balance of convenience, I have placed no weight on the length of time the Integrity Commissioner took to release her report. Serious allegations were made against Ms. Budarick relating to a serious public issue. As the application judge observed, the MCIA imposes a high standard of integrity, transparency and accountability on members of municipal councils and local boards. “The public has the right to expect that elected officials will be diligent in discharging the duties of their office while eschewing private or personal economic benefits”: The Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner) v. Andrea Emma Budarick, 2021 ONSC 7635, at para. 58.
[20] The application judge found that Ms. Budarick “intentionally used her position as a member of Council in an effort to obtain a financial advantage for her son. The manner in which [Ms. Budarick] conducted herself is precisely the mischief that the MCIA is aimed at preventing.”
[21] The application judge determined that the position of Ms. Budarick on Council ought to be declared vacant for the remaining term of Council, effective November 28, 2021. The application judge was not, however, prepared to disqualify Ms. Budarick from seeking re-election. The next municipal elections are scheduled to take place in October 2022. The Integrity Commissioner submits that a stay of any length of time would effectively shorten the penalty imposed by the application judge.
[22] I conclude that in the circumstances of this case – which include a judicial determination that Ms. Budarick intentionally used her position in an effort to obtain a financial advantage for a family member and Council’s agreement to be bound by an order prohibiting the Township from taking steps to fill the vacancy – the balance of convenience favours not granting a stay. The duties of a municipal councillor include representing the public, considering the well-being and interests of the Township, ensuring the accountability and transparency of the Township’s operations and maintaining the financial integrity of the Township. The public has a right to expect that their elected councillors will discharge these duties with integrity, transparency, and accountability.
[23] The public’s interest in ensuring that their elected officials comply with the Municipal Act and the MCIA outweighs any inconvenience to Ms. Budarick as a result of her removal from office. The interests can be balanced by an order prohibiting the Township from taking steps under the Municipal Act to fill the vacancy pending the determination of Ms. Budarick’s appeal.
Conclusion
[24] Ms. Budarick has not shown that it is in the interests of justice to grant a stay of the judgment of the application judge. Her motion for a stay pending her appeal is dismissed. I order that the Township is prohibited from taking steps under the Municipal Act to fill the vacancy in Ms. Budarick’s position on Council pending the determination of her appeal in this court.
[25] If the parties are unable to agree on costs of the motion, they may make written submissions, not to exceed three pages in length, excluding attachments. Submissions are to be provided within 10 days from the date of this endorsement.
Ryan Bell J.
Madam Justice R. Ryan Bell
Date: December 6, 2021
CITATION: Budarick v. The Corporation of the Township of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2021 ONSC 8034
DIVISIONAL COURT FILE NO.: DC-21-2676
DATE: 2021/12/06
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Andrea Emma Budarick, Respondent (Appellant)
AND
The Corporation of the Township of Brudenell, Lyndoch and Raglan (Integrity Commissioner), Applicant (Respondent in appeal)
BEFORE: Justice R. Ryan Bell
COUNSEL: Angela Chaisson for the Appellant
Raivo Uukkivi and Jennifer Evola for the Integrity Commissioner, Respondent in appeal
Tim Harmar for the Township of Brudenell, Lyndoch and Raglan
ENDORSEMENT
RYAN BELL J.
Released: December 6, 2021
[^1]: Notwithstanding any irregularities in the title of proceedings, there is no dispute that the parties to the appeal are Ms. Budarick and the Integrity Commissioner.