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: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".
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.
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!