Rob Ford Conflict Case Successfully Appealed

The Divisional Court of the Ontario Superior Court of Justice allowed the appeal of Toronto Mayor Rob Ford on Friday in Magder v. Ford, reversing the decision of Justice Hackland, which had ruled that Ford had violated s. 5 of the Municipal Conflict of Interest Act (MCIA). The implications of Justice Hackland’s decision is that Ford’s seat as mayor could have been vacated under the City of Toronto Act (COTA).

Ford argued that the pecuniary interest of donations to a football team was not a violation of the city’s Code of Conduct, which would have allowed for his removal. The court disagreed, and employed a purposive approach and concluded that the MCIA does apply to Code matter which come before Council.

The court rejected Ford’s argument that the pecuniary amount in question was insignificant, because he refused to pay it and the $3,150 was not an insiginificant amount even for someone of Ford’s means. They also rejected his arguments over inadvertence or error in judgment, because these types of subjective tests about the application of the law would undermine the purpose of the MCIA.

However, the court agreed that procedural fairness considerations were valid, because Ford did not have opportunity to respond to the allegations before city council. The severe penalty at stake required a strict interpretation of the threshold of how pecuniary interest is defined, as it is not defined in the Act itself. Consequently, the court concluded,

[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… 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.