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Rob Ford’s Conflict of Interest Appeal: What Happens Next?

Rob Ford is appealing a judge's decision to remove him from office. Here is how the coming days and weeks are expected to unfold.

Rob Ford shortly after the judge's decision was announced.

So, Mayor Rob Ford has been booted out of office by a judge. It’s not an outcome many predicted, nor is it one even some of his political enemies would have wanted. He’s appealed that decision, and the results of that appeal will be announced on Friday, January 25.

Here is the timeline of what happens next.

Note: neither the City Clerk’s office nor the Elections Office would answer our questions (they passed them along to a City spokesperson, who was short on details). The following is based on our reading of the relevant legislation in consultation with municipal-law expert John Mascarin.

The Appeal

If the original decision—the one removing Ford from office—is upheld: The City of Toronto Act states that if a seat is declared vacant in a judicial proceeding, city council must also declare that seat vacant at its next meeting. City council is next scheduled to meet on February 20, so they could deal with this procedural matter then. Since that’s nearly a month away though, it is also possible that council will call a special meeting to handle this situation specifically; that meeting could take place on 24 hours’ notice.

If the original decision is overturned: Rob Ford continues serving as mayor.

Interim mayor: Council’s procedural bylaw [PDF] says that if Ford’s seat is vacated, Deputy Mayor Doug Holyday (Ward 3, Etobicoke Centre) will become Toronto’s interim mayor. He was the mayor of Etobicoke before amalgamation, so he has some relevant experience.


If Ford is Removed from Office…

Within 60 days: Once council declares Ford’s seat vacant that starts a clock—from that point, they have 60 days to decide how to permanently fill the mayor’s seat. Unlike the interim mayor, who fills in on a temporary basis, they will be filling it for the duration of this term of council, until the scheduled 2014 election. They have two possible courses of action: they can either choose to appoint a replacement, or they can choose to hold a by-election.

Appointing a replacement would require some kind of council vote. It’s not clear how, exactly, the process would work. The City, again, isn’t answering questions, but Mascarin says there are few limits on who they can choose: anyone who is 18 or older and is a resident of this city and a citizen of this country would be eligible. The appointment process must begin and be completed within this 60-day window.

If Council Opts for a By-election…

Within another 60 days: If council calls a by-election, then the Municipal Elections Act kicks in, and another clock gets triggered. The City Clerk must designate what’s called nomination day—that’s the last day to file paperwork to register as a candidate—and that must be within 60 days of council’s decision to call a by-election. Basically: if council decides to send us to the polls, candidates will have at most two months to declare if they are running for the office.

Forty-five days later: Election day. The MEA states that the election will be held exactly 45 days after nomination day. That is, if we’re headed for a by-election, it will be, at most, 60 days (for deciding to call the election) plus 60 days (until nomination day) plus 45 days (for the campaign), or a total of 165 days—five and a half months—from the day Rob Ford’s seat is declared vacant until the day we go vote.

The by-election would work just like any citywide municipal election. There would be voting stations everywhere and we’d all get to pick from a list of candidates. It will cost about $10 million (including $7 million for conducting the election, and some more money—we won’t know how much exactly ahead of time—for campaign donation rebates).


Could Rob Ford Run in a By-election or Be Reappointed?

It depends.

The conflict of interest legislation does not give judges a lot of leeway in applying penalties. Specifically, it stipulates that if someone is guilty of a violation, and they aren’t redeemed by any so-called “saving clauses” (such as making an error in judgment, or being in conflict over an insubstantial amount of money), the violator must be removed from office. Judges have no latitude on this point. They can, however, decide whether to impost a further penalty, and bar the violator from holding municipal office for up to seven years.

The judge who decided the case originally, Charles Hackland, wrote that “in view of the significant mitigating circumstance surrounding the respondent’s actions…I decline to impose any further disqualification from holding office.” In short: he was applying the prescribed penalty—removal from office—but chose not to go any further.

If the appeals court upholds this original decision, Ford will be able to run in a by-election, or would be eligible to be reappointed by council. However, the appeals court has the option of returning any decision that was open to the original judge: they can exonerate Ford, they can order him removed from office and no more, or they can say the original judge didn’t go far enough, and decide not only that Ford is removed as mayor but that he is barred from holding office for a period of time. If they exercise this last option, Ford will not be able to run in a by-election or be reappointed by council.


Are Any Further Appeals Possible?

Possibly. According to the Supreme Court of Canada Act [section 40(1)], either side in this case could try to appeal directly to the highest court. They would need to do what’s called seeking leave to appeal: that is, there is no automatic right to appeal, but they can make their case to the Supreme Court, and if the court agrees there is merit to the request they can agree to hear an appeal. If the original decision is upheld and Ford is ordered out of office, and he does pursue a Supreme Court appeal, he would also need to separately seek a stay of the decision so he could retain office while that request to appeal was considered.


Note: this post was originally published on November 26, 2012.
UPDATE, NOVEMBER 26, 7:58 PM: Updated to reflect Ford’s announcement that he will be appealing.
UPDATE, DECEMBER 4, 6:04 PM: Updated to reflect the court day for the stay application, and Judge Hackland’s amendment to his decision.
UPDATE, JANUARY 7, 5:39 PM: Updated to reflect that the appeal hearing has now taken place.
UPDATE, JANUARY 24, 1:18 PM: Updated to reflect the date on which the appeal decision will be released, and to add information about a potential Supreme Court appeal.

Comments

  • http://www.facebook.com/people/Justin-Flontek/100003898558870 Justin Flontek

    Justice has been severed!

  • http://twitter.com/bambu85 bambu85
  • Anonymous

    Justin..you mean “served” appropriately based on the lack of respect for taxpayers!

  • Anonymous

    Rob Ford could do what Mohamed Morsi did in Egypt and declare himself that his decisions are supreme, irrevocable and immune against appeal before any court of law in our land. Which Rob tried to do already, but failed.

    • Anonymous

      [referring to an important council vote he lost] “Technically speaking that whole meeting was irrelevant”

  • Pirate Pete

    Has anyone asked yet who is paying for Ford’s defence, and who will pay for the appeal? It is quite possibly our taxpayer money.

  • Pirate Pete

    Has anyone asked yet who is paying for Ford’s defence, and who will pay for the appeal? It is quite possibly our taxpayer money.

  • Anonymous

    Not sure where the confusion is as far as Ford running in a by-election? A term of office is 4 years. Therefore he can’t run for 2 years. Seriously, no confusion, it appears that Ford Nation and their supporters are trying their best to muddy the clear directions of a Judge. Ford has already suggested the judgement by the Judge was political, which is quite disturbing in and of itself.

    • Anonymous

      The confusion stems from the fact that the judge’s wording seems to indicate that he was trying to impose the minimum possible penalty. (“In view of the significant mitigating circumstances…I decline to impose any further disqualification from holding office beyond the current term.” The judge’s only discretion is whether to bar Ford from running, in addition to removing him from the office now. The context of that sentence makes it seem like he was actively trying not to impose further penalties beyond the removal. At his press conference, Clayton Ruby—lawyer for the opponent—said he wasn’t sure which scenario would apply, i.e. even he didn’t come out with a definitive statement that Ford was precluded from running in the by-election.)

      • Chester Pape

        I’m sure I read in one of the relevant Acts a black letter specification that a person declared vacant from an office was prohibited from holding that office again during it’s regular term. No room for judicial discretion, but darn it, now I can’t find it again.

      • VincentClement

        The keywords are “further disqualification”. Judge Hackland found Ford violated the MCIA and disqualified Ford from holding office. He then states he will not impose any “further disqualification” beyond the current term. Unless the appeal overturns this decisions, Ford has to wait two years.

    • Chris

      Of course they’re claiming it’s political – it’s their knee-jerk reaction to everything. rather than simply acknowledge that he made a mistake, here he is, once again, doubling down that he did the right thing, despite being told over and over and over and over again that it was conflict. This entire process was utterly avoidable – it was his own stubborn bull-headedness that brought this about. At any stage of these proceedings he could have made this go away with a simple acknowledgement and a cheque for an amount that is little more than pocket change to him. But instead, Ford the bull-headed ass, can’t acknowledge a mistake and instead all but dared the plaintiffs to take him to court and for judge to rule against him. Ford is without a doubt the worst thing that ever happened to this city.
      Parents take note: This is what results when your children never learn that their actions have consequences and when you never tell them “no!”

    • Anonymous

      I’m definitely not a member of Ford Nation, but I did read ambiguity into the statement in paragraph 60 of the decision: “[...] I decline to impose any further disqualification from holding office beyond the current term.” Is the “current term” over once his seat is vacated, or is the “current term” over at the end of another two years, assuming that he would’ve been mayor for the full term of office? I believe this is the crux of the question.

      • Anonymous

        “[...] I decline to impose any further disqualification from holding office beyond the current term.” Terms of office are 4 years. The current term of office is 4 years. Terms of office are 4 years. The current term of office is 4 years. There is no ambiguity.

      • Not A Chump

        Read the MEA, section 6 is clear, a term is 4 yrs, from dec 1 following the election.
        http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_96m32_e.htm#BK6

    • Anonymous

      Ford can’t imagine a world in which he’s capable of doing something wrong, so the only other option is a political conspiracy.

  • http://twitter.com/bambu85 bambu85
  • Anonymous

    This gets curiouser by the hour: Daniel Dale reports mammo has just resigned from Ford’s executive, so he ‘can work with all of council’…

    • Anonymous

      A rat abandoning a sinking ship.

  • Hodor

    IT’S A REGULAR GAME OF THRONES.

  • Anonymous

    It’s not about Ford anymore, it’s about our great city. He’s so selfish and arrogant he’s going to appeal. He has that right, and it can go forward if he actually has something to appeal with. He has nothing. No appeal is going to happen. Second as far as a by-election. He is ineligible as the current term has another 2 years. So the buffoon is out until at least 2014. He’ll soon realize he’s screwed and do a “for the best interests of the city” speech and give up his stupidity and try to save face with this type of false proclamation. He’s out. Ding Dong…

  • http://twitter.com/Hohummm Ho Hum

    If he loses this appeal what is stopping him from making another appeal?

    • Anonymous

      From the Municipal Conflict of Interest Act: “The Divisional Court may give any judgment that ought to have been pronounced, in which case its decision is final, or the Divisional Court may grant a new trial for the purpose of taking evidence or additional evidence and may remit the case to the trial judge or another judge and,
      subject to any directions of the Divisional Court, the case shall be proceeded with as if there had been no appeal.”

      In short: the appeals court’s decision is final, unless they order an entirely new trial. But no further appeals of the original decision are possible.

  • http://www.facebook.com/mark.holliwell Mark Holliwell

    when he gets booted, he could learn about the great lakes

  • Anonymous

    I am afraid that this current City Council will make a big mistake – as usual. Just look at the crumbling Gardiner and the crappy TTC – results of a badly run City. Rob Ford could be Mayor for another 6 yrs!