A closer look at the court decision that let the mayor off the hook.
Shortly after the Ontario Divisional Court’s decision to overturn Rob Ford’s ouster, Clayton Ruby announced that his client intended to seek leave to appeal to the Supreme Court. I believe that Ruby is right to pursue an appeal. The Divisional Court decision raises some problematic issues.
Foremost among these is a point raised by Ruby in his press release following Friday’s decision: “Especially troubling,” he says, “is the finding that if a politician raises money from lobbyists and directs that money to his or her own personal interest, such abuse is beyond the reach of government oversight.” Ruby is referring to paragraph 70 of the decision, in which the court says that since Rob Ford never personally received any of the money donated to his football foundation, council wasn’t legally allowed to require him to reimburse those funds. While Ruby is correct to note that the court using this reasoning is troubling (as it effectively allows for influence-peddling through third-party organizations, which was exactly the reason the Integrity Commissioner ordered Ford to pay back the money in the first place), it wasn’t the court’s primary reason for finding in Ford’s favour.
The Divisional Court, unlike Justice Hackland in his decision in November, decided that the decision to make Ford reimburse his donors was in fact ultra vires—that is, beyond the authority of—the City of Toronto Act (CoTA), which is the piece of provincial legislation from which Toronto’s municipal government derives much of its legal power. That’s because CoTA lists specific penalties that can be levied against councillors, and reimbursement isn’t one. (Municipalities in Ontario have no innate powers in and of themselves; they only have the powers granted to them by provincial statute. Thanks to provincial statutes, they are allowed to create their own municipal laws, but municipal laws can’t override provincial laws, not even provincial laws saying how the municipality should be run.)
But city council’s Code of Conduct does allow council to demand reimbursement from councillors, and so there was a conflict between it and CoTA that needed to be resolved. Justice Hackland, in his decision, solved the problem by saying that the penalties outlined in the Code were “remedies” rather than penalties, and that therefore there was no conflict with CoTA.
The Divisional Court took the opposing view, noting that the Integrity Commissioner herself used the term “sanction” to describe the demand for reimbursement, and that it should therefore be considered a penalty. (Not to be overly self-congratulatory, but in my analysis of Hackland’s decision back in November, I accurately predicted that Hackland’s categorizing of the integrity commissioner’s penalties as “remedies” would provide the best basis for appeal. Point: me.)
But the Divisional Court also did something else: it overruled Hackland’s finding that the precise wording of the allowable penalties in CoTA didn’t matter so much, because CoTA specifically grants the City the ability to interpret its powers “broadly,” to govern as it considers appropriate. The Divisional Court decision doesn’t go into depth on the reasons for overturning that part of Hackland’s ruling, other than to disagree with him and cite some case law: Spraytech v. Hudson (Town), and Montréal (City) v. 2952-1366 Québec Inc.. The latter case is the more important one. In its decision on Montréal (City) v. 2952-1366 Québec Inc., the Supreme Court argued that where a specific power (like the penalties in CoTA) already exists in law, general powers within the same law should not be used to extend the scope of those specific powers.
However, in that case, the Supreme Court also quoted Spraytech (an older Supreme Court case where a pesticide company attempted and failed to have a municipal law banning pesticides struck down because the municipality did not have the authority to create such a law). In that earlier case, the court said that the purpose of broad power provisions was to “allow municipalities to respond expeditiously to new challenges facing local communities, without requiring amendment of the provincial enabling legislation.” I think there is at least an argument to be made that the existing penalties in CoTA were inefficient to address the issue at hand: specifically, Rob Ford’s improper acceptance of funds for his charity.
Is it a strong argument? Truthfully, probably not. Montréal is not so ambiguous, and the Supreme Court would, I suspect, probably find that the City can’t create new penalties for councillors, and that the sanctions present in the Code were penalties rather than remedies. But the appeal should still be heard. The Divisional Court’s reasoning with respect to Rob Ford not having personally received the money is deeply problematic and must be considered by the Supreme Court, as it will have precedential value with respect to legal handling of corrupt public officials in the future. Even if the other grounds for appeal are weak, the appeal should still be heard on that basis alone.
Christopher Bird was called to the bar in 2011. Prior to his call he was the managing editor of The Court, Osgoode Hall Law School’s jurisprudence blog. He currently practices family law at the Gene C. Colman Family Law Centre.