The Rob Ford ‘Conflict’ Case: Why It Will Be Dismissed

by Daniel Gogek*

When Justice Hackland renders his decision in the now-famous Toronto Mayor Rob Ford ‘conflict’ case, which could be any day now, he is virtually certain to find that the case, contrary to the widely reported views, actually wasn’t a conflict case at all.

Justice Hackland will no doubt explain this in clear detail, and it will be a welcome day, since the public has so far seen little more than misleading and muddled confusion on the matter.

The judgment will almost certainly make this key finding: there was no ‘conflict of interest,’ and therefore the Municipal Conflict of Interest Act simply didn’t apply.

How is can this be so? Let’s review the basic facts. In August 2010, Toronto City Council passed a motion without debate that imposed a financial penalty of $3,150 against Mr. Ford for allegedly breaching the Toronto Code of Conduct that governs Councillors, a Code adopted in 2006. According to one report on the meeting, several Councillors organized the motion to go through without debate as they did not want to give Mr. Ford an opportunity to speak.

This year, on February 7, City Council dealt with the matter again, namely a motion to reverse the August 2010 decision and cancel the penalty. This time, Mr. Ford was given the opportunity to defend his view that the penalty was inappropriate. The Council voted 22-12 to cancel the penalty, and Mr. Ford voted with the majority.

As everyone knows, it was Mr. Ford’s speaking to the matter (and then voting) that was the basis of the claim that he breached the Municipal Conflict of Interest Act (MCI Act). Rather than portraying his speaking as an interest in defending himself, the case characterized Mr. Ford as having a ‘conflict’ of interest, and that since he spoke and voted he allegedly violated the MCI Act.

Needless to say, the case attracted tremendous press coverage, mostly because the MCI Act gives a judge the power to remove a councillor from office, and the prospect that a judge could remove Toronto’s Mayor from office generated headlines everywhere.

So let’s ask the legal question at the heart of this case: are there in fact clear rules on how Councillors are allowed to speak and vote when a Code of Conduct matter comes before Council?

The short answer is yes, but they come from our longstanding rules of procedural fairness, not the MCI Act. Those who sought to humiliate Mr. Ford by asserting he did not understand the Conflict of Interest Act would now do well to read the findings of Justice Cunningham in his October 2011 Report of the Mississauga Judicial Inquiry.  Justice Cunningham, an experienced Ontario judge, gave us clear guidance on all these rules over a year ago.

In his Report, Justice Cunningham made it clear that

“a member of a municipal council should have the opportunity to respond at council to a damning report or to a recommendation that a penalty be imposed under a municipal code of conduct. [See page 173.]

Indeed, he set out an entire section called “procedural fairness,” and outlined how procedural fairness must be applied when enforcing municipal codes of conduct. As we all know, this means that when government officials (such as Toronto’s city councillors) are given the power to accuse a person of a breach under a public code and impose a penalty, they may do so only by following the basic rules of procedural fairness or ‘natural justice.’

The rules are simple. There are just two. The first is the opportunity to be heard (the rule known in latin as ‘audi alteram partem’). Justice Cunningham stressed no less than three times how this rule is so fundamental here. Indeed, he said that these municipal Codes of Conduct (he focused on Mississauga’s Code, which is virtually identical to Toronto’s) should be amended to “recognize explicitly the need to hear from a member” before a penalty can be imposed (page 179). Toronto’s Code of Conduct currently says nothing.

For those who might suggest the MCI Act is clear, Justice Cunningham describes in several passages how the current Act is unclear and needs amending. He says it should be written in simpler language, and, for example, should have a preamble to clarify its scope. And in Recommendation 14 he said it needs to be changed to say explicitly that “nothing in the Act prevents a member of council from making submissions … regarding the imposition of a penalty under a municipal code of conduct” (pages 173 and 178). In other words, Justice Cunningham again clarified the key point: it would be absurd to apply the MCI Act because if you did you’d violate a councillor’s basic right to be heard.

So did Mr. Ford have a right to speak on February 7? Yes, unequivocally, based on the rules of procedural fairness. He also had the same right at the August 2010 meeting, and since he was not then given an opportunity to speak, Mr. Ford’s right to procedural fairness was arguably violated at that meeting.

What about the issue of Mr. Ford’s voting on February 7? This is exactly what the second of the two basic rules of procedural fairness deals with. It says that no one can be a judge in his or her own case (the latin rule known as ‘nemo iudex in causa sua’). This means that, yes, the rules should provide that the accused councillor is not entitled to vote in his own penalty matter. Again, this is why Justice Cunningham stresses that the rules in these Codes need to be cleaned up.

At the end of the day, the real question is what should be done once the judgment comes down. Those who accepted the widely reported view that Mr. Ford had a ‘conflict’ will no doubt be surprised when they get the news that a councillor speaking to his own penalty matter under Toronto’s Code of Conduct was and is not only not a conflict, it’s actually a councillor’s right. Once that news sets in, it should be clear it’s time to get busy implementing Justice Cunningham’s many recommendations and clean up all these rules.

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*Mr. Gogek is member of the bars of Ontario, New York and Quebec, and is based in Toronto, Canada

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Comments

  1. Is there not an argument, however, that a mayor who was a councillor for ten years and who had the benefit of clear legal advice from the city solicitor should know enough not to be a judge in his own case? Anyone who thought that the rules that apply to everyone else might just apply to him would have figured it out. But not our Rob…

  2. While the argument isn’t a bad one, it was not made by Ford’s legal team. Regardless, the argument would only apply to his speech to council and not the vote.

  3. David Collier-Brown

    I could well expect the conflict part of the case to be dismissed, but not the case in its entirety, which I though from the title was being argued (;-))

    –dave (pilpul, anyone?) c-b

  4. Yes, but here it’s more likely to be recognized as casuistry (in the pejorative sense).

  5. And the definitions portion of the MCI Act defines a municipal confglict of interest as a confict with the voters. They was no question of municipal spending on the motion. It was not a municipal conflict in any way.

  6. Mr. Gogek is wrong when he said that Rob Ford was not then given an opportunity to speak at the August 2010 meeting. He had every opportunity to speak. All he had to do was hold the motion (which he frequently does), speak, and then release his hold, so that no vote is taken.

    It’s not his speaking that the issue. It’s that he voted.

  7. “Those who accepted the widely reported view that Mr. Ford had a ‘conflict’ will no doubt be surprised when they get the news…”

    Um, nope, I’m not surprised. But I’ll bet you sure are, Mr. Gogek!

  8. Despite Justice Hackland’s ruling, I agree there are some serious flaws in the legislation. The procedural fairness issue will play a central role in the appeal currently being advanced.

    The question in my mind then is whether the judge should have ignored the statute based on the lack of procedural fairness, or adhered to it despite these flaws. This is certainly not a case of judicial activism. In fact, it’s quite the opposite.

    Another interesting legal point to examine is whether Ford receives a stay, and if not if it leads to a by-election, how that affects his ability to run.

    The contradictory views held on the above points by municipal law experts, the city solicitor, a former AG, and other legal commentators provides some insight into how convoluted our legal system is (I provided mine on Newstalk1010 yesterday). When it deals with public figures we should certainly expect more transparency.

    Even worse, the decision was released to the media by print at the courthouse. After a court staff member took the time to photocopy pages for the long line which had accrued. Apparently digital releases of high-profile decisions is too complicated for our courts.

    We can do better than this.

  9. “The question in my mind then is whether the judge should have ignored the statute based on the lack of procedural fairness…”

    On what legal basis can a judge “ignore the statute based on the lack of procedural fairness”? You would think that you would need some sort of constitutional principle to do so. I suppose you could make a charter argument out of it but I think it would be a pretty weak one since being mayor hardly qualifies as a ‘right’.

  10. KC, there are ss. 7 and 11 rights could theoretically be engaged here.

    Although it’s not a Charter right to be a mayor, the mayor is entitled to Charter protections through a government-administered tribunal.

    Although Daneshvar v. National Dental Examining Board of Canada dealt with the lack of reasons in procedural fairness, the importance of decisions which affect one’s career were highlighted,

    13 In our view, the Supreme Court has made it clear that administrative decision-makers are not insulated from a requirement to give reasons where the issue is of important significance for the individual.

    15 …The test is the degree of importance to this person in these circumstances.

    Justice Hackland states at para. 23 that no Charter issues were raised by the parties. I am not sure why that is. He also states in the same paragraph,

    Furthermore, there is no authority for implying a right to be heard in the face of a statutory provision (such as s. 5(1) of the MCIA), which specifically denies such a right

    This actually sounds like the perfect test case for the Court of Appeal to weigh in on, if it gets that far.

  11. but surely there would not even have been a complaint if the Mayor had not voted – and the Charter does not give him the right to be the judge in his own cause, or even one of the jurors.

    In any event, he might have had a representative plead his case to the decision-maker rather than speak from the inside. It’s not a right to free speech that’s at issue here, it’s a case of ensuring that both sides are heard by a decision maker. That does not have to be from the mouth of a party when that party is also a member of the decision-making body.

    What about the free speech of corporate directors who have to declare conflicts and leave the meeting when their interests are debated? The Act that makes that happen is a state action. Is the mayor’s right to speak freely about his football charity more important? I would say not – because it’s not free speech, it’s audi alteram partem that is at issue here.

    It’s ironic that this rule-of-law case is being brought by Paul Magder, I presume the same one who used to keep his fur store open Sundays contrary to the laws of the day, and I don’t know that he paid the fines accruing for his civil disobedience. ‘Comply with the law while you press to have it changed’ was not his style.

  12. It’s a different Paul Magder. They don’t even look the same.

  13. No, it’s not the same Paul Magder.

  14. OK, thanks for the clarification. Christie Blatchford’s story is pretty good on this one.

  15. “KC, there are ss. 7 and 11 rights could theoretically be engaged here.”
    Please explain how that would be.

  16. Ignorance of the law is no excuse. Wilful ignorance is even less. Even for a Mayor of Toronto. Ms. Blatchford knows that. It’s unlikely she forgot to mention it. Her article is less for that, too.

    At least some of those 383,501 people didn’t vote for somebody who sometimes acts as if laws that he does not like do not apply to him.

    There’s at least one word for the trait that Mr. Ford tripped over – hubris.

  17. Here is the Blatchford article I think people are referring to. It draws heavily on an anonymous lawyer who contacted her with extensive writings on the subject – which itself is quite interesting.