Sunday 2 December 2012

Municipal Powers: Another Look at the Ford Case

News stories about an Ontario court striking down the City of Toronto's ban on shark fin products (decision not yet available online), as well as a pending media engagement, led me to have another look at Hackland J.'s decision to remove Mayor Rob Ford from office earlier in the week.

One of the aspects of the decision that I did not cover in my earlier post was whether the city council actually had the power to require the Mayor to reimburse the $3,150 he received for his football charity.

The relevant provision of the City of Toronto Act is s. 160(5), which regulates the sanctions that the Integrity Commissioner may recommend:
City council may impose either of the following penalties on a member of council or of a local board (restricted definition) if the Commissioner reports to council that, in his or her opinion, the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days.
No mention there of reimbursement. The only mention of reimbursement is in the Code of Conduct adopted by the city council. It provides for five additional penalties which the Integrity Commissioner may levy, including "3. Repayment or reimbursement of moneys received".

But how can the city council extend the available sanctions beyond those specifically provided for? Hackland J. held that the provisions (ss. 6-8) of the City of Toronto Act allowing the council to act for the general welfare of the City allowed council to add the sanctions in the Code of Conduct.

Those general welfare provisions allow municipalities to act without showing that they have an express power to act. This is why the decision to strike down the shark fin ban is surprising.

However, they do not allow municipalities to act in contravention of express or implicit statutory restrictions. It is surely implicit in s. 160(5) that only two sanctions can be imposed and that there is no authority to increase the range of sanctions.

This is even more clear if one looks at the French version of the City of Toronto Act. In French, s. 160(5) provides that Council "peut infliger à un membre du conseil ou d’un conseil local (définition restreinte) l’une ou l’autre des sanctions suivantes" (my emphasis). Council can choose one or the other. It cannot add to the list.

I expect that this will be a live issue on appeal. Indeed, if it accepts this argument, the Divisional Court might not even get to the complex interplay between ss. 4, 5 and 10 of the Municipal Conflict of Interest Act.

H/T to my wife, who prompted me to look at the French version of the statute. Pro tip: it is worthwhile to marry someone smarter than you are!


  1. How is the validity of the penalty relevant to the MCIA analysis? There was a presumption of validity at the time Ford voted on the matter. If he wants to JR the commissioner's penalty, that's fine, but it doesn't change the fact that he voted in violation of the MCIA.

  2. A good point, which only occurred to me after hitting "publish".

    There is a difference between void and voidable decisions. I guess you are saying that, if the argument about municipal powers is right, the decision was voidable rather than void and so continued to have juridical existence and consequences for the purposes of the MCIA.

    The more formal approach would be to say that the vote was a nullity because it was simply not within the powers of council to impose the financial sanction being voted on. How can you have a pecuniary interest in a matter that council has no authority to vote on?

    The prevailing view is that one can't really choose between these two approaches in the abstract. It all depends on the language and context of the statute.

    In favour of Ford, it is hardly appropriate to expect elected representatives to be running off to Divisional Court every time there is a dispute about statutory interpretation; and removal from office is such a drastic remedy that void/voidable issue should be resolved in favour of the party threatened with removal from office.

    Against Ford, the statute is broadly drawn: it refers to any "matter" (a term undefined in the MCIA) in which one might have a direct or indirect pecuniary interest.

    I think Ford has slightly the better of the argument, but one could reasonably disagree.

  3. I think this is a much more promising line for Lenczner than the other objections re procedural fairness. The "powers" part of the judgment was a little too hand-wavy for me. And the bilingual translation is a good point. Nonetheless:

    "In favour of Ford, it is hardly appropriate to expect elected representatives to be running off to Divisional Court every time there is a dispute about statutory interpretation; and removal from office is such a drastic remedy that void/voidable issue should be resolved in favour of the party threatened with removal from office."

    It still has to be "resolved" by someone, i.e. a court, so I don't see exactly how an appeal to efficiency works here. Perhaps you mean that Ford's lawyer's pre-emptive letter will be more persuasive next time a citizen contemplates phoning Ruby?

    Another thing. The MCIA speaks of "matters". Again, one can (and you have) argue(d) that the prohibition against speaking where a member has an interest in a "matter", where said "matter is the subject of consideration" (s 5(1)), is problematic re procedural fairness. However, given the focus on the process *leading up to a decision* is it relevant whether the decision is void or voidable? If the prohibition on speaking is upheld, then one can be in conflict regardless of whether council ever holds a vote. And, surely, there is no prohibition on council holding a discussion on a topic about which it doesn't have the authority to legislate?

    The counter-argument is then there is no genuine "interest" because nothing is at stake (or perhaps there is no genuine "matter" at all). But if that were the case (and here I am again assuming that the "speaking" bit is upheld) we have the reverse situation, where you would have cause to go to run off to court, at great expense, and argue about whether or not the motion was ultra vires. That seems wrong.

  4. The underlying question with respect to void/voidable is whether a councillor (let's call him Doug...) in a similar situation would run off to Divisional Court before the discussion and vote on the motion *or* wait until afterward to seek judicial review. Now, this is really a choice between the devil and the deep blue sea. Neither option is particularly attractive.

    I don't think it is especially appropriate to go before the discussion and vote. That could gum up municipal decision-making, quite severely if councillors were cynical about it. But if one were to prefer this approach, then it makes sense to treat a resolution as voidable. The consequences of being wrong would be severe, but of course, a good faith error about the law would save a councillor under s. 10(2).

    It seems to me better in principle to allow politics to run its course and leave the law until later. Have the discussion and vote first and, if anyone wants to exercise their right to bring an application, let them; but one should not forget that a potential future application is purely hypothetical before the discussion and vote have occurred. But if one takes this approach, then the resolution must be treated as void, in order to safeguard the councillor's right to discuss and vote on the matter, and the underlying principle of democracy.

    Democracy and procedural fairness are relevant here, not as free-standing arguments, but as supplying the context in which the choice between void and voidable is made. This is what counsel for Ford argued, judging from Hackland J.'s reasons.

    In passing, re 10(2): Hackland J. treated Ford's argument as being that he made a good faith error in interpreting the MCIA. This was easy to reject, given that Ford said he never read it! But what if Ford's argument is that he thought the Code of Conduct impermissibly extended the City of Toronto Act? That could qualify as a good faith error of judgment, which would save Ford even if the decision were voidable rather than void.

  5. Paul, I'm a writer and blogger in Toronto who's been following the Ford case closely. I'm not a lawyer, but you may want to take a look at the Ontario Court of Appeal's verdict on Toronto's sign tax by-law. One of the issues was a section of text in the City of Toronto Act which seemed to explicitly grandfather in existing signs (ie, make them non-taxable.)

    The Court of Appeals held the a) there was some text evidence that this interpretation was wrong, and b) notwithstanding that, municipal powers should be interpreted broadly even in the face of the section in question.

    I'd also note the ruling in Nanaimo (City) v. Rascal Trucking (cited by Hackland), where the court explicitly said that legislatures can't create "absurdities" with the law. The kind of narrow reading of the City of Toronto Act (passed, I stress, in the aftermath of a city-shaking ethics scandal) that would exclude everything bar the text of the Act would also, for example, forbid council from compelling an apology or even removing someone from their committee chair.

    Given the history of the Act (whose "accountability" sections were explicitly written to empower the Integrity Commissioner broadly), and some (admittedly amateur) reading, I think the ultra vires argument raised by Hackland is actually highly questionable.

    One other point: Ford spoke on one motion (that was withdrawn) and then voted on another (that he didn't speak on.) Hackland's decision, not unreasonably, suggests that if Ford had *only* spoken (on the withdrawn item) and not voted, we wouldn't be writing about this today. I'd go further, and suggest if he hadn't spoken but had voted, the arguments under "inadvertence or error" and "insignificance" would have substantially more weight.

    I note you've been quoted by Terence Corcoran

  6. Er, sorry, the Ultra Vires argument raised by *Lenczner.

  7. In the previous post on this case you said we need to interpret statutes using the context and purpose. Now you are simply focusing on the alleged plain meaning of two words in a 250 page act. You can't have it both ways.

    This is how we interpret statutes in Canada:

    It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, 1999 CanLII 639 (SCC), [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole.

    (Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54 at paragraph 10). Give the case, and Sullivan's textbook, a read and try again on this issue.

  8. JMcG: "I note you've been quoted by Terence Corcoran"

    @PD: My sympathies. Nobody deserves that indignity. Not as bad as being quoted by Sue-Ann Levy, but still.

  9. I'm not sure it matters if Council was ultra vires with respect to the particular sanction they chose. Under COTA, they still had the power to suspend Ford's pay for up to 90 days, which we can all agree is a direct pecuniary interest. In paragraph [15], Hackland cites case law indicating that it's settled that the mere possibility of that pecuniary interest is enough to trigger MCIA and bar a member from speaking to or voting on issues dealing with Code of Conduct violations. So even if the appeals court rules that paying back the donations was ultra vires, Ford still spoke to and voted on a Code of Conduct issue in which he had a potential conflict of interest.

  10. Thanks for the comments.

    Some of you, however, might also want to read Justice Bastarache's text on bilingual interpretation before announcing confidently "this is how we interpret statutes in Canada" :-)

  11. Bastarache's text does not have the force of the offered citation from Canada trust Co.

    The primary person who thinks that we should follow Bastarache's method of statutory interpretation is, well, Bastarache himself. The SCC continues to reiterate the cited principle, which it stole from Driedger on the construction of statutes (now under Ruth Sullivan's authorship), time and again. Most recently in Celgene. A good discussion of the principles of statutory interpretation can be found in Felipa v. MCI 2011 FCA 272 where both the majority and the dissent rely on, wait for it, the rule enunciated by the Supreme Court of Canada.

    Obviously the French text of a statute is a persuasive way of resolving ambiguity. But here it basically says the same thing as the English text. But I've read Justice Bastarache's book, and listened to his pitch for two hours in person, and I will say that he doesn't like Sullivan's rule. That's kind of too bad for him since it is the approach uniformly adopted by Canadian courts.

    And so yes, this is how we interpret statutes in Canada.

  12. Oh for heaven's sake...

    Snark: What about Daoust, "the leading case on bilingual interpretation" (Sullivan, 5th ed, p. 100)? Perhaps you think it doesn't count, because it was written by Justice Bastarache.

    Substance: the difference between the versions is small, but important. This cannot be ignored, in my opinion. From where you got the idea that I was ignoring elementary doctrine, I do not know. I was responding in the main text to the *purposive* argument presented by Justice Hackland!

  13. "The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole."

    You guys are gold. Good luck with this, it should only take about a lifetime to do this once to a single sentence. This is the Joycean scholar who's spent a career on three words of Ulysses. A laudable goal indeed, but you probably need some language about what's practical, although I'm sure in practice it's not that big a deal.

    BTW, how on earth does legal text not use a serial coma? This has to mean textual, contextual, and purposive anaylsis doesn't it? Yes, serial coma's can introduce different kinds of ambiguities, but they are - in my humble opinion - dramatically better at eliminating ambiguity in 90% of the instances they could be used. Character space can hardly be an issue in this regard, as it originally was for print publications, can it?

    Anyway, I'm probably in the wrong place now, but I couldn't help it.