What are we going to hear from Rob Ford's lawyer, Alan Lenczner, during the mayor's appeal of his ouster?
(Note: I want to be very clear that I am not a legal expert. Nothing that follows should be taken as advice from someone who has legal training. I’m only an amateur who has studied this stuff closely for most of a year now. I could be wrong.)
So, early next month, Mayor Rob Ford’s conflict of interest case goes to the Divisional Court, where a panel of three judges will decide whether to uphold Justice Charles Hackland’s decision, or overturn it.
Ford’s lawyer, Alan Lenczner, presented four arguments in court during Ford’s stay hearing on Wednesday that he will present to Divisional Court, none of them new to the case. I’m going to dwell on that for a second: Lenczner will not be introducing any new arguments on appeal, which means that there will be no constitutional arguments introduced. This was unlikely anyway, but it closes the door on any appeals to the Ontario Court of Appeals or the Supreme Court of Canada. (The text of the Municipal Conflict of Interest Act gives Ford only one bite at the appeal apple, as it were.) Anyone who suspected that Rob Ford intends to respond to a negative legal outcome by dragging appeals out until the end of his term can breathe easy, because this now seems impossible.
Here’s an analysis of the arguments in his defense, and the likelihood that the Divisional Court will buy them.
Is Ford’s penalty ultra vires?
The first and arguably most important argument is that the original $3,150 that Council ordered Ford to repay was ultra vires: that is, Council didn’t have the legal authority to order Ford to repay the $3,150.
In the City of Toronto Act, section 150 (5) reads:
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. 2006, c. 11, Sched. A, s. 160 (5).
Lenczner argued at court that the language of the Act should be read restrictively: that is, the Act authorizes these punishments and no others. Council didn’t have the authority to require Ford to pay back $3,150 in donations from lobbyists, says Lenczner, so Ford voting to undo council’s authority can’t breach the Municipal Conflict of Interest Act.
This argument poses two problems. The first is that Ford had 18 months between the original decision to impose the $3,150 penalty and the February 2012 vote that landed him in so much trouble. At no point during those 18 months did he seek any kind of lawsuit against the city to undo its (he now argues) illegal decision. Justice Hackland might have simply dismissed the argument by saying that since Ford didn’t seek recourse through the courts, the argument that the penalty is ultra vires is irrelevant.
Hackland took the more difficult route, which is why this may be the weakest (note: still not very weak) part of his decision. Hackland decided that Canadian jursiprudence does, in fact, empower Council to impose penalties outside of the narrow text of the Act. This has led some armchair City watchers to croon triumphantly that we all owe Rob Ford an apology because the decision is so obviously wrong. I don’t think that’s true, because we’ve seen other recent decisions where the courts have given very broad leeway to municipal powers, even in seeming defiance of the text of the law.
One recent example is the City’s victory in the so-called Billboard Tax case. The City of Toronto Act would seem, on its face, to make a billboard tax illegal for the vast majority of billboards that were constructed before the law was passed. From S. 110 (1):
A City by-law respecting advertising devices, including signs, does not apply to an advertising device that was lawfully erected or displayed on the day the by-law comes into force…
But the Ontario Court of Appeals decided that the City’s Third-Party Sign Tax was in fact legal, for reasons you can read in the decision. Importantly, while the Court of Appeals found there were a number of reasons to interpret S. 110 (1) other than how the advertising industry wanted, the decision also includes this:
I also agree with the submission that the powers conferred by the City of Toronto Act should be read in a generous fashion so as to enable the City to meet the needs of its residents and to provide them with good government. [emphasis added]
Since the Supreme Court declined to hear the Billboard Tax case, we can say that it’s settled law. It’s important to note here that’s it’s not direct precedent and Hackland doesn’t cite it. But that’s kind of my point: Hackland didn’t invent the broad, permissive powers of municipalities in his decision. They’re everywhere in municipal case law, sometimes even in cases where they seem to contradict the stated text of law.
For more sure-footed legal arguments, we can look at a case Hackland did cite: Nanaimo (City) v. Rascal Trucking, in which the Supreme Court of Canada ruled:
In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.
Considering the amount of text in the City of Toronto Act given over to accountability and offices to ensure accountability—remember, the Act was passed in the aftermath of the MFP scandal and the Bellamy Inquiry—it seems difficult to argue that the City’s power to enforce its Code of Conduct should be read as narrowly as Ford needs it to be, if he’s going to prevail. If Lenczner’s ultra vires argument succeeds, council could not even compel an apology from someone who violated the code of conduct, or even remove them from their committee chair.
The ruling also mentions Rizzo & Rizzo Shoes, where the court cited:
…a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.
Since it would seem to be an “absurdity” to argue that council can dock a member 90 days pay but not compel an apology, it’s certainly not obvious that Hackland’s decision will be overturned on this count.
Is the Municipal Conflict of Interest Act incompatible with the City of Toronto’s Code of Conduct?
This was the second argument Lenczner provided at court on Wednesday, and it’s arguably the weakest of the pro-Ford arguments. Lenczner argued on Ford’s behalf that the MCIA was designed to handle matters like land-use planning, and not a Code of Conduct violation. The problem for Rob Ford is that the Municipal Conflict of Interest Act is engaged, as Hackland put it (quoting the act):
Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration.
Hackland responds to Lenczner’s arguments pretty simply:
…the MCIA means what it clearly says and that there is no interpretive basis for excluding the operation of s. 5(1) from municipal Code of Conduct matters.
Which isn’t to say that he’s comfortable with the law. He notes that it may very well need reform for reasons that have been discussed to death—namely, the nuclear-level penalty. But with little ambiguity in the text—and with little reason (since he dismisses the ultra vires argument) to believe Code of Conduct matters should be excluded, the MCIA and the Code of Conduct clearly work together, not separately.
Was the amount of money insignificant? Was this an error in judgment?
I’ve dealt with these arguments in my previous post, so I won’t repeat myself here, but I will note that Lenczner made an argument on Wednesday that, if repeated before the panel of Divisional Court judges, would seem to be strange. (At least, strange to me.)
According to Lenczner (and elaborating on an argument he made at trial), Ford spoke and voted on his penalty because it was a matter of principle. On Wednesday, Lenczner told the judge “Mayor Ford would’ve made the same speech whether $5 was involved or $500…For him it was a matter of principle.”
This would seem to undermine the plain reading of the “inadvertence or error of judgment” defence. (Ford’s “error of judgment” defence actually amounts to more of a “Ford never read the law and had his own definition” defence.) And while it buttresses the idea that the amount of money was insignificant, it undermines the argument that it wasn’t swaying Rob Ford’s judgement.
In short, in the context of Hackland’s ruling, this argument sounds like kind of an own-goal. I’d also note that what Lenczner described as a matter of principle, Hackland described as:
…a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the Integrity Commissioner and the Code of Conduct.
But of course the reason we have appellate courts is because sometimes lower courts get it wrong (though Hackland does not have a reputation for such). And Divisional Court may feel slightly more free to read down certain terms in a way that could benefit Ford. And they might find a more narrow reading of “insignificance” to be the correct one. And the law has some legitimately unsettling parts!
I expect that Rob Ford will lose on appeal, though I will happily concede his chances (so far) seem to be better than they were in front of Hackland, without actually being terribly good—though we’ll have a bit of a better idea after we see it in court.
Postscript: No, Wednesday’s stay wasn’t a victory.
Contra some very stupid writing today, Rob Ford was never likely to be denied a stay. Further, you can’t argue that it’s a victory for Ford without it also being a victory for his critics, since they agreed on the need for a stay.
The Supreme Court’s rules for issuing a stay of a decision are the same as those governing injunctions. Those rules are set out in the 1994 RJR-MacDonald Inc. v. Canada decision. The test for whether a stay will be granted is pretty simple, and Ford easily clears all three tests:
One: Is there a serious question to be tried? This is the easiest hurdle. In the words of the Supreme Court:
Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.
Ford’s appeal isn’t frivolous or vexatious. He’s obviously entitled to an appeal, even in a case (like this one) where I think the original decision was clear and hard to argue.
Two: The applicant has to demonstrate irreparable harm if the decision isn’t stayed. Here, Ford clearly has a strong case: if the decision wasn’t stayed, city council is required to declare his seat vacant and start the procedure for choosing his successor. Council can’t offer to un-vacate his seat after it has done so, so the irreparable harm argument is pretty clear.
Three: Finally, the applicant has to demonstrate that the balance of public interest is met by an injunction. This too is a pretty clear argument to make: if Hackland’s decision wasn’t stayed, but the Divisional Court overturned it, then Toronto could have started the proceedings to vacate Rob Ford’s seat just in time for the Divisional Court to call off the election. It’s better for the city to wait until the appeal is exhausted.
While there are some arguments you could make against any one of these points, Clayton Ruby did not argue any of them in court because Clayton Ruby does not oppose a stay. To argue that this was a substantial legal victory for Ford (instead of a non-event) you have to be either willfully dishonest or willfully stupid.