ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-512530
DATE: 20150728
BETWEEN:
JUDITH ANN MacDONALD
Applicant
– and –
ROBERT FORD and DOUGLAS FORD Jr.
Respondents
Sean Dewart and Tim Gleason for the Applicant
Jane Sirdevan for the Respondents
HEARD: July 17, 2015
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] In this Application under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, this is a preliminary motion brought by the respondents about the interpretation and the application of the provisions of the Act that govern the timeliness of an application.
[2] Section 9(1) of the Act - which is sometimes characterized as a qualification provision and sometimes as a limitation provision - restricts an elector to bringing an application “within six weeks after it comes to his or her knowledge that a member may have contravened subsection 5(1), (2) or (3) of the Act.”
[3] On September 19, 2014, the Applicant Judith Ann MacDonald, who is a resident of Toronto and an elector under the Act, issued an Application under the Municipal Conflict of Interest Act, against the Respondents Robert Ford (“Mayor Ford”), then the Mayor of Toronto, and Douglas Ford Jr. (“Councillor Ford”), his older brother, and then a sitting member of Council, (collectively “the Fords”), alleging contraventions of the Act. On December 9, 2014, Ms. MacDonald amended her Application.
[4] The contraventions alleged in the 2014 Application occurred several years ago, but Ms. MacDonald says that the facts only came to her knowledge within the six weeks prior to her Application being issued.
[5] In her Application, Ms. MacDonald alleges that the Fords contravened the Municipal Conflict of Interest Act by voting on seven matters before Toronto City Council and its committees in which their family’s business or clients of their family’s business were interested.
[6] Ms. MacDonald alleges a total of 12 breaches of the Act with respect to the following seven matters, in which the Fords’ family business or its clients allegedly had an interest: (1) a ban on the sale of bottled water in civic centres; (2) an initiative to reduce food packaging waste; (3) the adoption and implementation of health criteria for beverage vending machines in parks, forestry and recreation areas; (4) modifications to an agreement to permit Porter Airlines to operate jets at the Toronto Island Airport and to extend the airport's runway; (5) the appointment of Darius Mosun to the Toronto Parking Authority Board; (6) adjustments to the fees under the City's Industrial Waste Surcharge Agreements (“IWSA”) Program; and (7) a study for St. Clair Avenue West for amendments to the City's Official Plan and zoning by-laws.
[7] On January 29, 2015, the Fords brought a motion to strike Ms. MacDonald’s Application on a variety of grounds. In the motion now before the court, the Fords submit that the Application is untimely with respect to three matters, which together constitute eight of the alleged 12 contraventions of the Act; namely:
(1) the appointment of Darius Mosun to the Board of the Toronto Parking Authority; namely:
o The Mosun Complaint
(2) adjustments to the fees under the IWSA Program; namely:
o The Family Business IWSA Complaint
o The Apollo IWSA Complaint
o The Nestlé IWSA Complaint
o The Coca-Cola IWSA Complaint
o The Maple Leaf Foods IWSA Complaint
o The Loblaws IWSA Complaint
(3) the study for St. Clair Avenue West and related amendments to the City's Official Plan and zoning by-laws; namely:
o The St. Clair Study (Maple Leaf Foods) Complaint
[8] The Fords submit that with respect to these eight alleged contraventions of the Act, the facts of the alleged breaches occurred years before the commencement of the Application and that Ms. MacDonald knew or ought to have known about the alleged breaches more than six weeks before her commencement of her Application and, therefore, with respect to these eight alleged contraventions, her Application under the Act is statute-barred.
[9] The Fords further submit that given Ms. MacDonald’s keen interest in municipal governance and given the information in the public domain about the Fords and about the clients of their family’s business, it follows that with due diligence and by paying attention to the information that was known to her personally and to the information in the public domain, Ms. MacDonald had knowledge of the facts long before the six weeks of bringing her Application against the Fords and, therefore, her Application with respect to the eight alleged contraventions is untimely.
[10] For the reasons that follow, I dismiss the Fords’ preliminary motion.
[11] As a matter of interpretation and application of s. 9 of the Municipal Conflict of Interest Act, it is my opinion that an application under the Act will be statute-barred based on untimeliness, if the applicant had actual or constructive knowledge of the facts on which the alleged contravention of the Act is grounded more than six weeks before the application is issued. It is further my opinion that an applicant should explain in his or her application (as was done in the case at bar), when he or she acquired knowledge of the facts of the alleged contravention of the Act, and then the onus is on the respondent to prove that the applicant had actual or constructive knowledge at an earlier time thus making the application untimely.
[12] In the case at bar, Ms. MacDonald met the onus of showing that her Application was timely, and, the Fords failed to prove that the Application was untimely, and therefore, the Fords’ preliminary motion should be dismissed.
B. FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties and the Witnesses
[13] Ms. MacDonald, who has a background in journalism, is an elector within the meaning of the Municipal Conflict of Interest Act. She lives in Toronto and has been keenly attentive to the political affairs of the City, most particularly during the term of Mayor Ford. During the Fords’ terms in public office, she has attended numerous council meetings, committee meetings, and meetings of City Boards.
[14] On May 26, 2014, Ms. MacDonald brought a complaint to the City’s Integrity Commissioner about alleged influence peddling; i.e., conduct that contravenes Section VIII (Improper Use of Influence) of the City’s Code of Conduct for Members of Council. The complaint alleges that Mayor Ford and Councillor Ford had improperly lobbied City Officials for a property tax accommodation for Apollo Health and Beauty Care, a customer of their family’s business. This integrity complaint is presently being investigated and remains outstanding.
[15] On September 19, 2014, Ms. MacDonald commenced the Application under the Municipal Conflicts of Interest Act that is now before the court. On December 9, 2014, she amended her Application.
[16] Ms. MacDonald’s allegations of contraventions by the Fords are serious and, if proven, the penalties for contravention include removal from office and a bar from returning to elected office for up to seven years.
[17] In support of her Application, Ms. MacDonald affirmed affidavits dated September 18, 2014, December 9, 2014, and March 26, 2015. Ms. MacDonald has not yet been cross-examined on her affidavits.
[18] Mayor Ford is the former Mayor of Toronto, and he was and is a sitting member of City Council. Councillor Ford was a member of City Council between 2010 and 2014 until his defeat as a candidate for mayor in the 2014 election.
[19] The Ford family owns Deco Labels & Tags Ltd., Deco Adhesive Products (1985) Ltd., and Doug Ford Holdings Inc. Mayor Ford and Councillor Ford are Directors of Doug Ford Holdings Inc. (formerly Deco Adhesive Products Ltd.) and Deco Adhesive Products (1985) Ltd. Deco Labels & Tags Ltd. is a wholly-owned subsidiary of Doug Ford Holdings Inc., of which Councillor Ford is a Director.
[20] In resisting the Application, the Fords rely on an affidavit sworn by Stephen Thiele. In his affidavit, Mr. Thiele, who is a lawyer at the firm representing the Fords in this Application, argues that Ms. MacDonald ought to have known of the Fords' alleged contraventions of the Act more than six weeks before bringing or amending the Application. Mr. Thiele was cross-examined on his affidavit. Apart from the argument contained in his affidavit and in the transcript of his cross-examination, Mr. Thiele has no personal information to dispute the uncontested evidence of Ms. MacDonald about when she came to have knowledge of the facts of the alleged contraventions of the Act.
[...continues verbatim through paragraphs 21–162 exactly as in the source...]
Perell, J.
Released: July 28, 2015
COURT FILE NO.: CV-14-512530
DATE: 20150728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUDITH ANN MacDONALD
Applicant
– and –
ROBERT FORD and DOUGLAS FORD Jr.
Respondents
REASONS FOR DECISION
PERELL J.
Released: July 28, 2015