CITATION: Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640
DIVISIONAL COURT FILE NO.: DC-21-0000-2676-0000
DATE: 20220131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, D.L. Corbett and Gomery J.J.
BETWEEN:
ANDREA BUDARICK
Appellant
– and –
THE CORPORATION OF THE TOWNSHIPS OF BRUDENELL, LYNDOCH AND RAGLAN (integrity commissioner)
Respondent
Angela Chaisson, for the Appellant
J. Paul R. Cassan, for the Respondent
HEARD: January 18, 2022
Dambrot J.:
Reasons for Decision
[1] The appellant Andrea Budarick is a member of the Municipal Council of the Townships of Brudenell, Lyndoch and Raglan (“BLR”). In the fall of 2019, acting on a complaint from an elector, the Integrity Commissioner for the Townships (the “IC”) commenced an investigation into alleged violations of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (“MCIA” or “Act”) by the appellant. On November 3, 2020, after concluding her investigation, the IC commenced an application under s. 8(1) of the MCIA in the Superior Court of Justice for a determination of the question of whether the appellant contravened s. 5 and s. 5.2 of the MCIA, and if so, for a sanction pursuant to s. 9 of the Act.
[2] James J. heard the application. On November 22, 2021, he found that the appellant had breached s. 5(1) and s. 5.2 of the Act and ordered that her position be declared vacant for the remaining term of the current Municipal Council. However, he declined to disqualify the appellant from seeking re-election when the current term of Council is over: see The Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner) v. Andrea Emma Budarick, 2021 ONSC 7635 (“Application Decision”). This is an appeal from that decision.
[3] By direction of Ryan Bell J. on November 26, 2021, the parties were ordered to exchange their appeal materials by December 31, 2021, and this appeal was expedited for hearing in January 2022. Ryan Bell J. also granted a short interim stay of the order of James J. pending a motion for a stay pending appeal, which Her Honour subsequently heard on December 3, 2021 and dismissed, apart from an order prohibiting the respondent Townships from taking steps to fill the vacancy on Council pending determination of this appeal (2021 ONSC 8034).
Background
[4] The appellant is a first-term member of Council for BLR. She took office on December 5, 2018. The role is part-time, and the appellant also runs a catering business from her home. In addition, she is a licenced, non-practicing paralegal.
[5] On August 7, 2019, the Fire Chief for BLR advised the Council that he had declared a total fire ban in BLR, that warnings had been given to those who were not complying with the ban, and that service charges would be levied against property owners who did not comply with the fire ban.
[6] On August 16, 2019, the BLR Fire Department responded to a call regarding an open fire at Gary Budarick’s property. Mr. Budarick is one of the appellant’s adult sons. The Fire Department subsequently issued an invoice to him for a service charge of $1,666.75 as cost recovery for the Fire Department’s attendance. Mr. Budarick had previously been warned not to have an open fire during the ban.
[7] BLR policy requires that service charges levied by the Fire Department be approved by Council. On September 4, 2019, the Captain of Firehall Number 1 attended a public meeting of Council as a representative of the Fire Department for the limited purpose of obtaining approval of a group of service charges imposed by the Department, including the service charge invoiced to Mr. Budarick, and to report on Fire Department activities during the month of August 2019.
[8] The appellant was present at this meeting and disclosed at the outset that she was in conflict because one of the invoices pertained to her son. She stated, “I have, as emailed, the item August 16, 2019 at property 2499 Schutt Road, the Fire Chief’s report …. As it’s a direct conflict, it’s my son’s property and I’ll be representing him.” In an email sent by the appellant to counsel for the respondent on October 16, 2019, she explained that her intention was to address Council on behalf of her son in relation to his invoice despite her declared conflict. And in fact, when the service charges were addressed at the meeting, the appellant embarked on a wide-ranging examination of the Fire Department representative about the Department’s finances, donations, practices and procedures including its alleged mismanagement of money. This included questions about who got warnings about the fire ban and who did not, about invoices other than her son’s invoice, and about whether the Fire Department had issued unapproved invoices in the past. These matters were not on the agenda, and advance notice of them was not provided to the Chief.
[9] The application judge found that these questions “contained veiled and not so veiled criticisms of the Fire Department, including criticisms of its financial practices and handling of donations” and that they were likely designed and intended to denigrate the Department’s practices, create doubt about the service charges and to obtain information for the purpose of enhancing her son’s ability to challenge or reduce the service charges he would have to pay.
[10] Council approved Mr. Budarick’s service charge at this meeting.
[11] Mr. Budarick filed an appeal of the service charge to the Fire Safety Commission, a provincial tribunal. On October 8, 2019, the appellant sent an email to the Fire Safety Commission identifying herself as a member of the BLR Council. She disclosed her pecuniary conflict but wrote that she was looking for information about the tribunal process on behalf of her son.
[12] Also on October 8, 2019, a special meeting of the BLR Council was held, prior to which the appellant again declared a conflict. The Integrity Commissioner swore in her affidavit filed on the application that her investigation revealed that the only item on the agenda was a Notice of Case Conference from the Fire Safety Commission. Similarly, in an email sent by the appellant to counsel for the respondent, the appellant said that she was given notice of a special meeting of Council “where I was told that my son’s issue was the only item on the agenda.”
[13] The meeting lasted approximately a half an hour. The minutes of the meeting reflect that (1) Council went into closed session to discuss litigation or potential litigation, (2) the appellant seconded the motion for Council to come out of the closed session, and (3) after Council came out of the closed session, the Mayor reported that “one issue regarding litigation or potential litigation was discussed in closed session.” There is no intelligible audio recording of the meeting. The application judge found that the only matter on the agenda at that meeting was in fact related to Mr. Budarick’s service charge invoice, and that the appellant attended throughout the entirety of this meeting, including after it became a closed session.
[14] Another special meeting of Council was held on October 30, 2019, prior to which the appellant declared a pecuniary interest regarding “personal matters about an identifiable individual.” The appellant seconded a motion that this meeting also go into closed session. The investigator for the Integrity Commissioner was present at this meeting and stated that a councillor who had declared a conflict must leave when the meeting goes into closed session, at which point the appellant left the meeting.
[15] At a special meeting held on November 1, 2019, Council resolved to reduce the service charge levied against Mr. Budarick by 78 percent, from $1,666.75 to $365.
[16] The non-profit corporation “Expertise for Municipalities” (“E4M”) acted as the Integrity Commissioner for BLR. Ms. Young-Lovelace, a director of E4M, was appointed to investigate and report on an alleged conflict involving the appellant. The report was delivered to Council on November 4, 2020. In her report, the Commissioner concluded that, despite the appellant’s declaration of an interest in the matter, the appellant remained at the meetings where her son’s service charge was discussed, actively took part in the discussion regarding the service charge that the Fire Department sought to recover from her son and actively influenced the decisions of Council either before, during or after the meetings dealing with her son’s pecuniary interest in the service charge.
[17] On November 6, 2020, after the release of the report, the appellant wrote to Ms. Young-Lovelace expressing her belief that Ms. Young-Lovelace should have recused herself from participating in the investigation and from authoring and submitting the final report because the appellant had, in her “capacity as councillor”, made a number of public criticisms about the need for Ms. Young-Lovelace’s investigation and the propriety of the fees she charged. This, she said, created a “very strong presumption of bias on [Ms. Young-Lovelace’s] part”. Ms. Young-Lovelace did not recuse herself or E4M from the investigation.
[18] The IC subsequently brought an application under s. 8 of the MCIA alleging that the appellant breached the pecuniary interest provisions of the MCIA by participating in the discussion about the service charges and that she attempted to influence Council to the benefit of her son.
The Legislative Scheme
[19] The history of the MCIA was comprehensively outlined in the decision of this Court in City of Elliott Lake v. Pearce, 2021 ONSC 7859, at paras. 12-18. The concern that municipal politicians not profit as a result of holding office is one of long standing. So also is the concern that members of a municipal council have no interest to bias their judgment in deciding what is for the public good. These principles were contained in the Consolidated Municipal Act, S.O. 1903, c. 19.
[20] The MCIA was first enacted as a scheme that was separate from the Municipal Act in 1972: see Municipal Conflict of Interest Act, 1972, S.O. 1972, c. 142. The Act required a member of a council present at a meeting of council to disclose a conflict of interest, as defined by the Act, in a matter being considered, and refrain from participating in the discussion of the matter. It further authorized a ratepayer who became aware of a contravention of these requirements to apply to a judge for a determination of whether there had been a contravention. If the judge determined that there had been a contravention, the judge was required to declare the seat vacant and disqualify the member from being a member of any council for up to seven years, unless the contravention was committed through inadvertence or by reason of a bona fide error in judgment.
[21] The 1972 Act brought about a significant change. It marked the beginning of a movement away from a narrow approach to conflicts based on contracts involving the municipality in which the member may have an interest, towards a broader understanding that members must disclose all direct and indirect connections that might give rise to conflict or a perception of conflict. But importantly, the Act has always taken into account the concern that “municipal government can be, and should not be, deprived of the services of good people.”: City of Elliott Lake, at para. 14, citing Ian MacF. Rogers"Conflict of Interest A Trap for Unwary Politicians", (1973), 11:3 Osgoode Hall LJ 537, at p. 538.
[22] The Act has undergone substantial amendment since 1972. It was amended most recently by the Modernizing Ontario's Municipal Legislation Act, S.O. 2017, c. 10 - Bill 68, Sched. 3, s. 8(1) (the “Modernization Act”). The Modernization Act made three important changes to the MCIA for our purposes.
[23] First, the Modernization Act added s. 1.1 to the MCIA. Section 1.1 is a statement of principles in relation to the duties of members of councils and local boards under the Act. It provides as follows:
1.1 The Province of Ontario endorses the following principles in relation to the duties of members of councils and of local boards under this Act:
The importance of integrity, independence and accountability in local government decision-making.
The importance of certainty in reconciling the public duties and pecuniary interests of members.
Members are expected to perform their duties of office with integrity and impartiality in a manner that will bear the closest scrutiny.
There is a benefit to municipalities and local boards when members have a broad range of knowledge and continue to be active in their own communities, whether in business, in the practice of a profession, in community associations, and otherwise.
[24] Second, the Modernization Act revised s. 8(1) of the MCIA to permit an Integrity Commissioner, in addition to an elector, to apply to a judge for a determination that the Act had been contravened.
[25] Third, the Modernization Act broadened the options available to a judge upon a finding that that MCIA had been breached. The judge was no longer obliged to declare the seat of the member vacant. Section 9(1) of the MCIA now provides as follows:
9 (1) If the judge determines that the member or former member contravened section 5, 5.1 or 5.2, the judge may do any or all of the following:
Reprimand the member or former member.
Suspend the remuneration paid to the member for a period of up to 90 days.
Declare the member’s seat vacant.
Disqualify the member or former member from being a member during a period of not more than seven years after the date of the order.
If the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, if the party’s identity is not readily ascertainable, to the municipality or local board, as the case may be.
The Alleged Contraventions
[26] The IC alleged that the appellant had breached s. 5 and s. 5.2 of the Act. The pertinent portions of those sections provide:
When present at meeting at which matter considered
5 (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.
Where member to leave closed meeting
(2) Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration.
Influence
5.2 (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter that is being considered by an officer or employee of the municipality or local board, or by a person or body to which the municipality or local board has delegated a power or duty, the member shall not use his or her office in any way to attempt to influence any decision or recommendation that results from consideration of the matter.
The Decision of the Application Judge
[27] In his reasons, the application judge began by identifying the purpose of the Act as described in the decision of this Court in Moll v. Fisher (1979), 1979 2020 (ON SC), 23 O.R. (2d) 609: to prohibit members of Council and local boards from engaging in the decision-making process in respect to matters in which they have a personal economic interest. He then affirmed that the onus of proof was on the applicant IC on a balance of probabilities and proceeded to consider the arguments made by the appellant and the respondent. He made the following determinations.
[28] The application judge held that the appellant violated s. 5(1) of the Act through her conduct at the September 4, 2019, meeting. After disclosing her pecuniary interest in a matter that was the subject of consideration at the meeting, which the application judge identified as the service charges imposed for the breach of the fire ban which were before Council for review and approval, the appellant nonetheless proceeded to take part in the discussion of the matter. The application judge rejected the submission that Ms. Budarick was free to conduct a wide-ranging examination of Fire Department practices and policies. He found, as a fact, that these practices and policies were not included in the meeting agenda and were not the subject matter of the meeting. The questions asked and comments made by the appellant were intended to denigrate the Fire Department’s practices, to create doubt regarding service charges and to obtain information for the purpose of enhancing her son’s ability to challenge or reduce the invoice he received. As a result, the application judge further concluded that this contravention of the Act was not mere inadvertence or an error of judgment. Instead, the appellant intentionally used her position as a member of Council in an effort to obtain a financial advantage for her son.
[29] In reaching this conclusion, the application judge took the following into consideration, among several other factors:
evidence indicating that the appellant’s son intended to contest the service charge levied against him with the assistance of the appellant in an appeal to the Fire Safety Commission; and
evidence that, subsequent to the meeting, the appellant was publicly critical of the IC’s investigation and accused her of bias because the independent investigation found that the appellant had contravened the MCIA.
[30] The appellant submitted to the application judge that the application before him was “bound” by the scope of the IC’s original investigation which, she said, was limited to her conduct at Council. The IC was not permitted to raise additional issues, in particular, those related to the Fire Safety Commission or the respondent’s letter alleging bias on the part of the Integrity Commissioner. The application judge disagreed. He concluded that the court was not precluded from receiving all relevant and admissible evidence that is material to the issue of whether the appellant had contravened the MCIA. He further found that there was no reasonable basis to support the allegation of bias on the part of the IC.
[31] With respect to the special meeting of Council on October 8, 2019, the application judge concluded that the only matter on the agenda related to the appellant’s son’s invoice and that, after the appellant declared her pecuniary conflict, Council went into a closed session and the appellant remained in the meeting, thereby contravening s. 5(2) of the MCIA.
[32] In determining the appropriate sanction, the application judge acknowledged that the 2017 amendments to the MCIA had made a greater range of penalties available, and referred back to the text of s. 9(1) the MCIA reproduced earlier in his decision. He then noted that the determination of an appropriate disposition requires that all the evidence be considered and that both mitigating and aggravating factors ought to be taken into account. He then listed those factors.
[33] The application judge considered the following to be mitigating factors:
a. The amount involved is relatively modest;
b. The appellant recognized that a conflict of interest situation existed and declared that she had a deemed pecuniary interest in relation to the service charges; and,
c. The appellant cooperated with the IC’s investigation.
[34] He considered the following to be aggravating factors:
a. The appellant knew she had a conflict of interest but chose to participate in the discussion regarding Fire Department practices and the service charges;
b. Her public duties were subordinated to her desire to assist her son;
c. There was a substantial reduction in the service charge levied against Gary Budarick; and,
d. The appellant failed to seek timely advice from the IC, the only person who is authorized to provide advice under the MCIA.
[35] He further noted that while the appellant could not obtain the mitigating benefits of an inadvertent mistake or an error in judgment, their absence was not an aggravating factor.
[36] In all the circumstances, he found that the appellant’s seat on Council should be declared vacant for the remaining term of the municipal Council, but he was not prepared to disqualify her from seeking re-election when the current term ends in the fall of 2022. He rejected the alternative submission of the appellant that a reprimand would be appropriate. He was of the view that such a disposition would not adequately address the intentional and deliberate nature of the appellant’s conduct.
The Issues
[37] This appeal is brought pursuant to s. 11(1) of the MCIA, which provides that an appeal lies from any order made under s. 9 to the Divisional Court in accordance with the rules of court.
[38] The appellant argues that the application judge made the following errors:
He improperly interpreted the words “matter under consideration”[^1] in the MCIA;
He improperly interpreted the words “shall forthwith leave” in the MCIA;
He improperly considered the appellant’s email to the Fire Safety Commission;
He improperly considered allegations ultra vires the IC’s mandate;
He erred in finding that the appellant’s breach was intentional and not “an error or act of inadvertence”; and
He failed to properly balance the penalty considerations and impose a penalty lesser than removal from office, as would be consistent with jurisprudence.
The Standard of Review
[39] This being a statutory appeal from a decision of a judge, the applicable standard of review is to be determined with reference to the nature of the question in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker's authority, the standard of review is correctness. On questions of fact, the standard of review is palpable and overriding error. A palpable and overriding error is an error that can be plainly seen and that affected the result, is unreasonable or is unsupported by the evidence. On questions of mixed fact and law, the standard is palpable and overriding error, unless there is an extricable question of law, in which case, the standard of review on that extricable question is correctness.
[40] The standard of review on appeal in relation to the imposition of a penalty has been stated variously. It has been described both as a question of mixed fact and law attracting a standard of review of palpable and overriding error, and as an exercise of discretion that must be accorded a high degree of deference by appellate courts. Regardless of the characterization, it has been said repeatedly that on an appeal from a penalty decision, this Court will only interfere where the penalty decision reflects an error in law, an error in principle or if the penalty is clearly unfit, alternatively expressed as “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases: see e.g., Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at. para. 18; City of Elliott Lake, at paras. 29-30; Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088 (Div. Ct.), at para. 27; and Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193 (Div. Ct.), at para. 23.
ANALYSIS
[41] I will consider next the six errors said by the appellant to have been made by the application judge.[^2]
Did the Application Judge Incorrectly Identify the Matter Subject to Consideration at the September 4, 2019, Meeting of Council?
[42] As I have explained, s. 5(1) of the MCIA provides that where a member has a pecuniary interest in any matter and is present at a meeting of the council at which the matter is the subject of consideration, the member must disclose the interest and must not take part in the discussion of or vote on any question “in respect of the matter” in which the member has a pecuniary interest.
[43] In this case, the Captain of Firehall Number 1 attended the September 4, 2019 meeting of Council as a representative of the Fire Department for the limited purpose of obtaining approval of a group of service charges imposed by the Department, including the service charge invoiced to Mr. Budarick, and to report on Fire Department activities during the month of August 2019. An examination of the Fire Department’s practices and policies was not on the agenda, and the Captain did not attend the meeting to answer questions about those issues. The appellant, who was present at the meeting, did not ask any questions or make any comments specifically about her son’s invoice. However, she did embark on a wide-ranging examination of the Captain about the Department’s finances, donations, practices and procedures including its alleged mismanagement of money. This included questions about who got warnings about the fire ban and who did not, about invoices other than her son’s invoice, and about whether the Fire Department had issued unapproved invoices in the past.
[44] The application judge found that these questions “contained veiled and not so veiled criticisms of the Fire Department, including criticisms of its financial practices and handling of donations” and that they were likely designed and intended to denigrate the Department’s practices, create doubt about the service charges and to obtain information for the purpose of enhancing her son’s ability to challenge or reduce the amount of the invoice he received: Application Decision, at paras. 22, 69. This, he concluded, amounted to a violation of s. 5(1) of the Act.
[45] The appellant argues that in reaching this conclusion, the application judge incorrectly interpreted the term “the matter [that is] is the subject of consideration” in s. 5(1) of the MCIA and that this amounted to an error of law. I do not agree.
[46] First, in my view, what the appellant is alleging can be neither a misinterpretation of the statute nor an error of law. The meaning of the term “matter” is perfectly clear; it means a matter in which a member has a pecuniary interest.
[47] Plainly, the matter that was the subject of consideration at the meeting was not limited to discussing the single invoice issued to Mr. Budarick. It extended to matters that had a real connection to the appellant as a result of her interest in her son’s invoice. That was made clear in this court’s decision in Moll v. Fisher. There, the spouses of two Toronto Board of Education trustees were elementary school teachers in the employ of the Board. The two trustees participated in the consideration of a tentative collective agreement with secondary school teachers. The Court concluded that there was ample evidence to demonstrate a real connection between the elementary and secondary school teachers’ contracts, creating an indirect conflict of interest: see Moll, at p. 512-513.
[48] Furthermore, it seems to me that what the appellant is alleging is not properly characterized as a misinterpretation of s. 5(1) of the MCIA but rather as an error in the application of the law to the circumstances of the case. The extent of what can be considered to be the matter under consideration, as I have endeavoured to show, depends on the context and the evidence. Section 5(2) prohibits a conflicted member from taking part in the discussion of any question in respect of the matter that gives rise to the conflict. Whether or not words spoken by the member that do not directly address the member’s precise pecuniary interest in the matter nonetheless amount to taking part in a discussion of any question in respect of that matter is a question of mixed fact and law for the application judge in light of all of the circumstances.
[49] In this case, the application judge made no extricable error of law and no palpable and overriding error of mixed fact and law in concluding that the matter that was the subject of consideration extended to all the invoices under consideration at the September 4, 2019, meeting, and to the questions the appellant asked of the Fire Captain when the invoices were being considered at that meeting. The basis for his decision was transparent, reasonable and supported by the evidence. Indeed, in my view, it was inevitable.
[50] The appellant argues that, should the application judge’s approach to this issue stand, it will frustrate the principles and purpose of the MCIA. She contends that it will greatly reduce the extent to which elected officials can be involved in their communities and the willingness of those involved in the community to run for elected office, and will introduce significant uncertainty to conflicted councillors and prevent them from representing their constituents on matters unrelated to but perhaps tangential to their conflict. This is nothing more than an in terrorem argument. The only message this decision sends is that when a member has a pecuniary interest in a matter under discussion in a council, the member should refrain from entering the fray, even in respect of issues that may seem tangential. The simple reality of s. 5 is that, on undoubtedly rare occasions, conflicted councillors will have to leave it to others to represent what they consider to be the interests of their constituents. This should come as no surprise to anyone seeking political office and imposes no onerous burden.
[51] I would not give effect to this ground of appeal.
Did the Application Judge Incorrectly Interpret the Words “Shall Forthwith Leave”?
[52] Section 5(2) of the MCIA provides that when a member has a pecuniary interest in any matter and is present at a meeting of the council that is not open to the public at which the matter is the subject of consideration, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration.
[53] In this case, on October 8, 2019, a special meeting of the BLR Council was held that went into a closed session. The uncontested evidence was, and the application judge found that, as the appellant knew full well, the only item on the agenda was her son’s litigation respecting his service charge invoice. The meeting lasted approximately a half an hour. As I have explained, the minutes of the meeting make clear that the single issue discussed in the closed session was the appellant’s son’s proposed litigation concerning his invoice. The application judge found as a fact that the appellant attended throughout the entirety of this meeting, including after it became a closed session.
[54] The appellant argues that the application judge incorrectly interpreted the words “shall forthwith leave the meeting or the part of the meeting during which the matter [in which the member has a pecuniary interest] is under consideration” in s. 5(2) to mean that the appellant was not allowed to attend a closed meeting at all. In fact, the application judge did not address the issue raised by the appellant. He simply stated that “Council went into a closed session and the [appellant] remained in the meeting, contrary to the requirements of the MCIA.” But even if he had given the section the interpretation suggested by the appellant, it would be of no moment. The application judge found as a fact that the only item on the agenda was the appellant’s son’s litigation respecting his service charge invoice, and that the appellant attended throughout the entirety of this meeting.
[55] Moreover, the application judge made no palpable and overriding error in concluding that the appellant violated s. 5(2) of the Act on October 8, 2019. The basis for his conclusion was transparent, reasonable and supported by the evidence.
[56] I would not give effect to this ground of appeal.
Did the Application Judge Err in Considering the Appellant’s Email to the Fire Safety Commission?
[57] As I have noted, on October 8, 2019, after the appellant’s son filed an appeal of the service charge to the Fire Safety Commission, the appellant sent an email to the Commission identifying herself as a member of the BLR Council. She disclosed her conflict but wrote that she was looking for information about the tribunal process on behalf of her son.
[58] The email was an exhibit to the affidavit of Ms. Young-Lovelace, which was listed in the Notice of Application to the Superior Court as a document to be used at the hearing of the application and was filed in support of the application. The sending of the email was identified in the affidavit as one of the grounds for the IC’s determination that the appellant had contravened the Act.
[59] The appellant argues that this letter was irrelevant, since s. 5.2(1) only prohibits a member of a municipal council with a pecuniary interest in a matter from attempting to influence a decision of an officer or employee of the municipality or its delegate that is considering the matter. The Fire Safety Commission is not a delegate of the municipality.
[60] This argument misconceives the use that the application judge made of this evidence. He did not determine that the appellant violated s. 5(2) by writing to the Fire Safety Commission, and so could not have used the email in this manner. Instead, the application judge found that the email was relevant and admissible evidence that was material to the issue of whether the appellant had contravened the MCIA. More specifically, he used the email as evidence that the appellant’s cross-examination of the Captain of Firehall Number 1 at the September 4, 2019, Council meeting was undertaken in part for the purpose of enhancing her son’s ability to challenge or reduce the amount of his invoice, and that the respondent's contravention of the MCIA was intentional, in an effort to obtain a financial advantage for her son, and not mere inadvertence or an error in judgment.
[61] The application judge made no error of law in the use he made of the appellant’s email.
[62] I would not give effect to this ground of appeal.
Did the Application Judge Err in Considering Allegations that were Ultra Vires the IC’s Mandate?
[63] The appellant argues that the application judge was prohibited by the provisions of the MCIA from considering matters raised by the IC in the application to the Superior Court that occurred more than six weeks before the application and that were not part of the ratepayer complaint investigated by the IC. As a result, the application judge erred in law in considering the appellant’s email to the Fire Safety Commission that I just discussed for this additional reason, and also erred in law in considering a letter to the IC in which the appellant alleged that the IC was biased. This letter is contained in the affidavit of Michelle Mantifel, who was, at the time, the Clerk for the Corporation of the Township of Brudenell, Lyndoch and Raglan. The affidavit is dated November 16, 2020 and was filed on the application by the IC. It is discussed in detail by the appellant in her affidavit, which was sworn on April 6, 2021.
[64] The application was commenced on November 3, 2020. The email to the Fire Safety Commission was sent on October 8, 2019. The letter to the IC was dated November 6, 2020 – three days after the application was commenced.
[65] As I have already noted, in the appellant’s letter to Ms. Young-Lovelace, she expressed her belief that Ms. Young-Lovelace should have recused herself from participating in the investigation and in authoring and submitting the final report because the appellant had, in her “capacity as councillor”, made a number of public criticisms about the need for Ms. Young-Lovelace’s investigation and the propriety of the fees she charged. This, she said, created a “very strong presumption of bias on [Ms. Young-Lovelace’s] part”.
[66] The appellant’s argument runs as follows. Section 8(1) of the Act permits an elector, an IC or a person demonstrably acting in the public interest to apply to a judge for a determination that a member has contravened s. 5, 5.1 or 5.2 of the Act. Section 8(2) provides that such an application may only be made within six weeks after the applicant became aware of the alleged contravention. However, ss. 8(3) and 8(4) create exceptions to s. 8(2). Of relevance here, s. 8(4) permits an IC to make an application more than six weeks after the IC became aware of the alleged contravention if the application relates to an inquiry conducted by the IC under s. 223.4.1 of the Municipal Act, 2001, S.O. 2001, c. 25. This is such an application.
[67] As I understand the appellant’s argument, she says that the email could not be considered by the application judge because it was sent more than six weeks before the application was made and was not part of the ratepayer’s complaint, and the letter could not be considered because it was sent after the application was made and was not contained in the complaint.
[68] The appellant raised this issue before the application judge. She submitted that the court action was “bound by the scope of the Integrity Commissioner’s original investigation, which. . . was limited to [her] conduct at Council. . . The Applicant is not permitted to raise additional issues, for example, those related to the Fire Safety Commission or the Respondent's letter alleging bias on the part of the Integrity Commissioner.”: Application Decision, at para. 72.
[69] The application judge summarily dismissed this argument, and understandably so. He said that Court was not limited “from receiving all relevant and admissible evidence that is material to the issue of whether the MCIA was contravened.”: Application Decision, at para. 75.
[70] The appellant’s argument conflates an alleged contravention of the MCIA with the evidence that may be adduced to establish the contravention. Sections 8(2) and 8(4) of the MCIA place constraints on the contraventions of the MCIA that can be considered on an application. They do not speak to, far less constrain, the evidential content of the application nor do they in any way preclude the court from considering all relevant evidence.
[71] Here the applicant did not allege, and the application judge did not determine that the appellant contravened the MCIA by sending her email to the Fire Safety Commission or her letter to the IC in which she alleged that the IC was biased. The IC relied on these two pieces of evidence to assist in establishing that the appellant contravened the MCIA at the September 4, 2019 and October 8, 2019 meetings of Council, and the application judge made use of them for no other purpose.
[72] Specifically, as I have already explained, the application judge used the email as evidence that the appellant’s cross-examination of the Captain of Firehall Number 1 at the September 4, 2019 Council meeting was undertaken in part for the purpose of enhancing her son’s ability to challenge or reduce the amount of his invoice, and that the respondent's contravention of the MCIA was intentional, in an effort to obtain a financial advantage for her son, and not mere inadvertence or an error in judgment.
[73] As for the letter to the IC, the application judge made very little use of it. He listed it as one of the many factors that led him to conclude that the questions the appellant asked at the September 4, 2019 meeting were asked for the purpose of enhancing her son's ability to challenge or reduce the invoice he received. He also made reference to it in responding to the appellant’s argument that she properly raised an apprehension of bias in relation to the IC. He said that, on the basis of the evidentiary record before him, there was no reasonable basis to support the appellant’s allegations of bias against the IC. Using the letter in this way was appropriate and not prohibited by the provisions of the MCIA.
[74] I would not give effect to this ground of appeal.
Did the Application Judge Err in Finding that the Breach of the MCIA was Intentional and not an Error or Act of Inadvertence?
[75] The appellant argues that the application judge erred in law in finding that the breach of the MCIA was intentional and not an error or an act of inadvertence because:
He failed to consider the appellant’s direct evidence about her state of mind contained in her own affidavit; and
He failed to consider the circumstantial evidence that contradicted his conclusion and relied only on circumstantial evidence that supported his conclusion.
[76] I find no error in the trial judge’s determination that the breach of the MCIA was intentional.
[77] I begin with the direct evidence of the appellant’s state of mind in her affidavit. The appellant claimed, with respect to the meeting of September 4, 2019, that she raised questions about the Fire Department practices and policies pursuant to her obligations to her constituents as their counsellor, and not to benefit her son. The application judge considered the appellant’s claim but rejected it. He stated, at para. 68 of his reasons, “I do not accept the contention that the Respondent had a duty to pursue these issues at this particular meeting of Council due to questions raised by her constituents.” He gave cogent and detailed reasons grounded in the evidence for reaching this conclusion. He went on to say, at para. 69, “I find it is more likely than not that the Respondent's questions and comments were designed and intended to denigrate the Fire Department's practices, to create doubt regarding service charges and to obtain information for the purpose of enhancing her son's ability to challenge or reduce the invoice he received.” He gave cogent and detailed reasons for reaching this conclusion as well. The suggestion that he failed to consider the appellant’s direct evidence on this issue is without merit.
[78] I turn next to the circumstantial evidence that is said to contradict the trial judge’s conclusion. The appellant points to the fact that she disclosed her conflict and to her evidence that she consulted numerous sources. There is much to be said for the respondent’s position that this evidence supports, rather than detracts from the application judge’s conclusion that the appellant’s contravention was not mere inadvertence or an error of judgment. Instead, it demonstrates that the appellant was alive to her conflict yet acted to influence Council notwithstanding same. In addition, the evidence that the appellant consulted numerous sources can carry no weight. She did not disclose what she asked these sources, nor what advice they gave.
[79] However, even if this evidence is capable of undermining the application judge’s conclusion, there can be no doubt that he was fully aware of it. And as the appellant concedes, there was also circumstantial evidence supporting the trial judge’s conclusion. He was entitled to draw reasonable inferences from the totality of the evidence and made no error of law or palpable and overriding error of fact in drawing the inference that the breach of the MCIA was intentional.
[80] I would not give effect to this ground of appeal.
Did the Application Judge Make a Reviewable Error in Imposing Penalty?
[81] As I have said, however the standard of review of the imposition of penalty is described, the decision under review must be accorded a high degree of deference. This Court will only interfere where the penalty decision reflects an error in law, an error in principle or if the penalty is clearly unfit, alternatively expressed as “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases.
[82] In this case, the application judge determined that the appropriate sanction was to declare the appellant’s position as a member of the BLR Council vacant for the remaining term of this municipal Council, effective Sunday, November 28, 2021. The appellant submits that in reaching this determination, the application judge incorrectly applied legal principles, and the sanction is “clearly wrong” and amounts to an injustice.
[83] More specifically, she says that the application judge failed to properly engage with the legislative amendments, specifically:
the new purpose provision at s. 1.1, and
the new penalty provisions at s. 9(1).
[84] In addition, she says the application judge:
failed to consider the emerging jurisprudence applying the new penalty provisions, and
considered only reprimand and removal but not lesser intermediary penalties, such as a short suspension or financial penalty.
[85] I will consider each of these arguments in turn, except that I will deal with grounds two and four together.
Did the Application Judge Fail to Properly Engage with the Addition of s. 1.1 to the MCIA?
[86] As I have noted, in 2017, the Modernization Act added s. 1.1 to the MCIA. Section 1.1 is a statement of principles in relation to the duties of members of councils and local boards under the Act, specifically,
The importance of integrity, independence and accountability in local government decision-making.
The importance of certainty in reconciling the public duties and pecuniary interests of members.
Members are expected to perform their duties of office with integrity and impartiality in a manner that will bear the closest scrutiny.
There is a benefit to municipalities and local boards when members have a broad range of knowledge and continue to be active in their own communities, whether in business, in the practice of a profession, in community associations, and otherwise.
[87] In his reasons, at para. 58, the application judge stated, “The MCIA imposes a high standard of integrity, transparency and accountability upon 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.”
[88] Based on this statement, the appellant argues that the application judge failed to recognize the existence of the fourth principle in s. 1.1, the benefit to municipalities when members have a broad range of knowledge and continue to be active in their communities, and as a result failed to balance it against the imposition of a high standard of integrity when determining the appropriate sanction.
[89] There are several problems with this argument. First, the passage in the application judge’s reasons focussed on by the appellant is not found in the part of his reasons where he considers the appropriate sanction. Rather, it is found in the first paragraph of his analysis of the question whether the appellant contravened the provisions of the MCIA. At that stage, his task was to determine whether the applicant had violated the specific expression of the high standard of integrity imposed on members of council by the Act. Nothing in his statement suggests to me that the application judge was not alert to the four principles in s. 1.1 when he determined the appropriate sanction for the breach. Judges are presumed to know the law.
[90] Second, the appellant notes that the passage she quotes is immediately followed by a statement of the “obvious purpose of the Act”, found in the judgment of this Court in Moll, to prohibit members of Council and local boards from engaging in the decision-making process in respect to matters in which they have a personal economic interest. She argues that Moll involved a previous iteration of the MCIA which did not have the benefit of the new purpose provision, and that the application judge framed his decision around a purpose that has subsequently been refined and rearticulated. The 1972 MCIA, she says, “is far removed from the current MCIA under which this appeal is brought.”
[91] I do not accept this reasoning. While the Act has been amended since Moll, its fundamental purpose has not changed. It is still to prohibit members of Council and local boards from engaging in the decision-making process in respect to matters in which they have a personal economic interest. Section 1.1 is not a purpose provision; it is a statement of principles in relation to the duties of members of councils and local boards.
[92] In particular, in my view the fourth principle in s. 1.1 is intended to make clear that the fact that members of council remain active in in business or in the practice of a profession is a positive thing and should not be looked at with suspicion. But it is not intended to suggest that we should close our eyes to circumstances in which members fail to perform their duties with integrity as a result of their outside interests. Principle three reminds members that they are expected to perform their duties of office in a manner that will bear the closest scrutiny.
[93] Moreover, the four principles in s. 1.1 are not new or revolutionary ideas. In fact, the fourth principle was recognized and applied by the courts long before it was enacted in s. 1.1, and even before Moll. As was noted in City of Elliott Lake v. Pearce, at para. 14 and read together with footnote 10, the 1972 Act took account of the concern that “municipal government can be, and should not be, deprived of the services of good people.” These words were spoken by the Hon. Dalton Bales Q.C., then Attorney-General, in introducing the 1972 legislation in the Legislature. What was accomplished by the 2017 amendments was not the creation of a new principle, but rather a clear statement of them, and an expansion of the power of an application judge to give judicious effect to them by broadening the options available to the judge upon a finding of a contravention of the Act. The application judge was well aware of this change in the Act. He stated, at paras. 84 and 85 of his reasons,
Under an earlier version of the MCIA, the only available sanctions were a Court order declaring the member's position vacant with the additional possibility of disqualification for up to seven years, unless the Court was satisfied that the contravention was due to inadvertence or an error in judgment.
Now the sanctions include a greater range of possibilities as outlined in paras. 12 and 13 above.
[94] It was not incumbent on the application judge to recite the fourth principle in s. 1.1 in his reasons.
[95] I would not give effect to this ground of appeal.
Did the Application Judge Fail to Properly Engage with the New Penalty Provisions in s. 9(1) of the MCIA?
Did the Application Judge Consider only Reprimand and Removal but not Lesser Intermediary Penalties?
[96] As I have just noted, the application judge was well aware of the amendments to the Act, and specifically adverted to the new penalty provisions in s. 9(1). Despite this, the appellant submits that the application judge somehow failed to engage with the newly available spectrum of penalties. Although he specifically declined to order a reprimand as requested by the appellant, and specifically declined to disqualify the appellant from seeking re-election when the current term of Council is over, the appellant says that he failed to engage with s. 9(1) because he did not specifically mention the possibility of suspending the remuneration paid to the member for a period of up to 90 days or disqualifying the member from being a member during a period of time shorter than the remainder of her term.
[97] It is hard to fault the judge for limiting his analysis of the appropriate sanctions to the options actually proposed to him by the parties. But in any event, it is apparent that he was aware of all the available sanctions but considered the options of suspending remuneration for up to 90 days or disqualifying her for a short period of time to be inappropriate.[^3] Judges are not required to explicitly draw attention to every available penalty in their reasons.
[98] In addition, I am of the view that the reasons the application judge gave for declaring the member’s seat vacant and rejecting a reprimand were more than adequate. After listing the mitigating and aggravating factors in relation to both the appellant herself and her contravention of the Act, and noting that the contravention was neither an inadvertent mistake nor an error in judgment, he stated, at para. 90, “In all the circumstances, I find that the position of the respondent ought to be declared vacant for the remaining term of this municipal Council, effective Sunday, November 28, 2021.” After explaining his reasons for refusing to disqualify the appellant from seeking re-election, he then adverted to the appellant’s suggestion that a reprimand would be appropriate. He stated, at para. 93, “I am of the view that such a disposition would not adequately address the intentional and deliberate nature of the respondent's conduct.” In other words, he viewed the nature and circumstances of the breach to be too serious to be sanctioned by a reprimand or other disposition short of declaring her seat vacant.
[99] The appellant says that the application judge treating the penalty section of the MCIA as “the old ‘on/off’ switch: removal or not.” That is far from a fair description of his reasons. He provided a cogent and transparent explanation for his decision. He made no error of law, and his determination must be accorded a high degree of deference, subject to a consideration of the remaining ground of appeal.
[100] I would not give effect to these two grounds of appeal.
Did the Application Judge Fail to Consider the Emerging Jurisprudence Applying the New Penalty Provisions Proposed to Him?
[101] The appellant submits that similar cases must result in similar sanctions, and that the application judge failed to impose a penalty that is consistent with jurisprudence. This, she says, is an error in principle. The jurisprudence she speaks of is a single decision – the decision in City of Elliott Lake v. Pearce.
[102] In my view, the appellant misconceives the law. In the criminal law, s. 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. That principle, with necessary changes to the language, applies equally to civil penalties. But it remains the case that a penalty decision must be accorded a high degree of deference, and in respect of the category of error alleged in this ground of appeal, the Court will only interfere where the penalty decision is demonstrably unfit, clearly or manifestly excessive, or represents a “substantial and marked departure” from penalties in similar cases.
[103] In explaining my position, I begin with the obvious. One single earlier sentencing decision is not a body of law and cannot be invoked to activate s. 718.2(b) or its civil equivalent. Judge B is simply not required to accept as binding the sentencing decision of Judge A. But in any event, this case differs substantially from City of Elliott Lake v. Pearce.
[104] In City of Elliott Lake v. Pearce, the application judge found that:
- Pearce did not act in his own or his family’s monetary self-interest,
- Pearce’s split loyalties were between two entities that had, as their mandate, the best interest of Elliot Lake,
- While he made an error, Pearce, acted for the benefit of the community and not his own, and
- Councillor Pearce apologized for his conduct.
[105] Here, the application judge found that the appellant :
- acted intentionally,
- knew she had conflict of interest but chose to participate in the discussion regarding Fire Department practices and service charges,
- subordinated her public duties to her desire to achieve a financial benefit for her son, and
- did not apologize and maintained that she did not contravene the MCIA.
[106] The decision in City of Elliott Lake v. Pearce did not involve a similar contravention of the MCIA committed by a similar member in similar circumstances to this case. It in no way compels the imposition of a similar penalty here.
[107] I would not give effect to this ground of appeal.
Conclusion with Respect to the Sanction Imposed in this Case
[108] In addition to the grounds of appeal that I have addressed, the appellant also argues that the application judge overlooked certain other mitigating factors, such as that the appellant was a first-time councillor in a part-time position, and that she was juggling her responsibilities with her obligations to her family and her own business. Although the application judge did list not these considerations as mitigating factors, he noted them in his reasons, and there is no basis to imagine that he did not bear them in mind when he imposed penalty.
[109] Before leaving this discussion, I want to address the argument that ultimately underlies the appeal against the sanction imposed in this case. The appellant is really complaining that the penalty is disproportionate to her breaches of the Act, and clearly excessive. After all, she is a new member of Council, and the invoice in question was for a mere $1,666.75 that was reduced to $365. She says that it is a bottom end of the spectrum of breaches and should not attract so severe a penalty.
[110] The problem with this argument is that the application judge did not view this as a bottom end of the spectrum breach, and neither do we. I say this because, far from involving a simple error in judgment, the appellant, knowing that she had a conflict of interest, proceeded to intentionally use her position as a member of Council in an effort to obtain a financial advantage for her son. Moreover, she has never apologized, accepted that she did anything wrong or demonstrated that she has learned from this experience. While I acknowledge, as the application judge recognized, there are also mitigating circumstances here, that does not make the penalty disproportionate to the breach or clearly excessive.
[111] Two final points. One of the mitigating circumstances recognized by the application judge in this case is the fact that the amount involved in the breach is relatively modest. But not too much should be made of this. It must be remembered that this breach took place in a small, rural community. The reduction of the invoice from $1,666.75 to $365 is of far greater significance than it would be in a larger community. Second, it should not be forgotten that the appellant’s impugned actions included a broad attack on the Fire Department and its management. This attack is coloured by the conflict of interest and creates the appearance that the appellant considered it acceptable to mount such attacks (subsequently mirrored in her attack on the IC) in her efforts to help her son.
[112] In my view, there is no basis for this court to interfere with the penalty imposed by the application judge. While the penalty was not lenient, it reflects no error in law, no error in principle and is not clearly unfit.
DISPOSITION
[113] The appeal is dismissed.
COSTS
[114] Having regard to the cost outlines submitted by the parties and their submissions, we are of the view that costs should be awarded to the respondent in the amount of $10,000, all inclusive.
Dambrot J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
Gomery J.
Released: January 31, 2022
CITATION: Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640
DIVISIONAL COURT FILE NO.: DC-21-0000-2676-0000
DATE: 20220131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, D.L. Corbett and Gomery J.J.
BETWEEN:
ANDREA BUDARICK
Applicant
– and –
THE CORPORATIONS OF THE TOWNSHIPS OF BRUDENELL, LYNDOCH AND RAGLAN (integrity commissioner
Respondent
REASONS FOR DECISION
Dambrot J.
Released: January 31, 2022
[^1]: Section 5(1) of the MCIA actually speaks of a matter being “the subject of consideration”.
[^2]: I have reworded some of the alleged errors raised by the appellant in the headings that follow to more clearly identify the issue under consideration. In addition, where the appellant has framed issues to argue that the application judge “improperly” did something, we have reviewed the allegations, not on the basis of “propriety”, but on the basis of the correct standard of review in this court.
[^3]: It is at least arguable, having regard to the history of the Act, that disqualification for up to seven years is intended to follow removal from office and not substitute for it. A suspension of a member for a period time less than the remainder of the member’s term would leave the member’s constituents unrepresented during the suspension. But that issue need not be addressed here.