Divisional Court Grants Mayor Rob Ford’s Appeal: Magder v. Ford

The Ontario Superior Court of Justice-Divisional Court has allowed Mayor Rob Ford’s appeal: Magder v. Ford, 2013 ONSC 263 (Div. Ct.).

The tl;dr version: Ford didn’t have a pecuniary (financial) interest and, thus, didn’t breach the Municipal Conflict of Interest Act.

Ford had appealed the decision of Hackland R.S.J. dated November 26, 2012 which held that he contravened s. 5 of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (“MCIA”) and declared that Mr. Ford’s seat as Mayor of the City of Toronto was vacant.

The genesis of the appeal arose from a report by the Integrity Commissioner   which concluded that Mr. Ford, as a member of Council, breached three articles of the City of Toronto Code of Conduct dealing with gifts and benefits, use of city property, services and resources and improper use of influence.  The breaches involved Mr. Ford’s use of the City of Toronto logo, City staff, and his status as a councillor to solicit funds for a charitable foundation, the Rob Ford Football Foundation, which he had established to fund the purchase of football equipment for high school football teams.  The report of the Integrity Commissioner was tabled at a City Council meeting on August 25, 2010 and was approved without debate. adopting the recommendation respecting sanction (asserting that it was permitted by Article XVIII of the Code), with the added requirement that Mr. Ford provide proof of reimbursement to the Integrity Commissioner (“Decision CC 52.1”).

The Divisional Court panel, comprised of Then R.S.J., Leitch and Swinton JJ., unanimously held that Justice Hackland had erred in finding that Mr. Ford contravened the MCIA.  EssentiallyDecision CC 52.1 was a nullity because of the nature of the financial sanction it imposed, the appellant has not contravened s. 5(1) of the MCIA.  The Court writes,

[45] Did Mr. Ford have a pecuniary interest in that matter? In our view, he did not. The financial sanction had already been imposed in August 2010 by virtue of Decision CC 52.1. The issue before Council was Mr. Ford’s conduct since Decision CC 52.1 was adopted. There was no financial sanction contemplated by the January 30, 2012 report before Council at the meeting on February 7, 2012. Indeed, the report states, under “financial impact”, that it “will have no financial impact on the City of Toronto”. It is noteworthy that, in contrast, the August 2010 report stated, “This report will have no financial impact on the City of Toronto. It may have a financial impact on Councillor Rob Ford.” Therefore, the application judge erred when he found that Mr. Ford contravened s. 5(1) when he spoke at the meeting of February 7, 2012.

[46] However, the matter before Council changed when thereafter a motion was made to rescind Decision CC 52.1. From that point, Mr. Ford clearly had a pecuniary interest in the matter before Council, as he would be relieved of the reimbursement obligation if the motion passed. Therefore, the application judge correctly found that Mr. Ford had a direct pecuniary interest when he voted on that motion, and s. 5(1) of the MCIA was engaged.

[47] Nevertheless, as set out in the following section of these reasons, it is our view that Mr. Ford did not contravene s. 5(1), because the financial sanction imposed by Decision CC 52.1 was not authorized by the COTA or the Code. In other words, it was a nullity.

The Divisional Court also held that Ford’s appeal was not a collateral attack on Decision CC 52.1. noting:

[72]           Given that the imposition of the financial sanction under Decision CC 52.1 was a nullity because Council did not have the jurisdiction to impose such a penalty, Mr. Ford had no pecuniary interest in the matter on which he voted at Council on February 7, 2012 – namely, the revocation of the Decision CC 52.1.

 The Divisional Court concludes:

[95]           Nevertheless, even if the application judge did not mention every piece of evidence weighing in favour and against a finding of “error in judgment”, the appellant has not demonstrated that the application judge made any palpable and overriding error.  He heard the testimony of Mr. Ford and was in the best position to determine whether the error in judgment defence applied to the facts of this case.  He did not ignore material evidence or misapprehend the evidence, and he gave careful reasons setting out the evidence he relied on to support the result.  His findings are supported by the evidence.  Accordingly, we would not give effect to this ground of appeal.

In my view, the Magder v. Ford decision is sound. It does, however, behoove the Mayor in the future to pay closer attention to the Code of Conduct and read up on the MCIA, and listen to his advisors, including his legal counsel.  When in doubt, disclose.

Is this the end of #Fordgate?

Not yet, according to Toronto Star City Hall reporter, Robyn Doolittle, (via Eugene Meehan) on Twitter:

Twitter   supremeadvocacy  RT  robyndoolittle  Clayton ...

While I doubt that the Supreme Court of Canada will grant leave, stranger things have happened, so stay tuned…

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