Wednesday, September 5, 2012

Stranger than Fiction: Will Ford Escape?

Today, Toronto Mayor Rob Ford is fighting in a hearing to keep his job, over a $3150 issue.

What Happened?

Mayor Ford runs a football charity.  A worthy cause, no question.  However, there was some issue as to donations, in the amount of $3150, by lobbyists.  City Council's Code of Conduct has strict regulations regarding fundraising (to prevent the possibility or perception of influence-peddling), and the allegation was that Ford had raised those funds in breach of those regulations.  So, in 2010, Council ordered Ford to personally repay the donors of that money.

This past February, the matter came up again, because Ford still hadn't repaid the money.  However, Ford delivered a speech defending his charity, and then participated in a successful vote to reverse the previous order.

What's the Problem?

Let's be clear:  This case is not about the propriety of Ford's fundraising.  The issue here is that a Provincial law, the Municipal Conflict of Interest Act (the "MCIA") prohibits municipal office-holders from participating in discussions or votes in which they have a financial interest.

For a breach, unless it's inadvertent or an "error in judgment", there's a mandatory penalty of removal from office.

So the allegation here is that Ford, by participating in the discussion and then the vote on whether or not he should have to repay the money, violated the MCIA, and therefore should be removed from office.

What is his Defence?

Ford has a prominent lawyer, Alan Lenczner, defending him.  Lenczner has crafted a clever defence, which is being billed in the media as a "four-pronged" defence.  The four prongs are that the MCIA does not cover breaches of the Code of Conduct; that Council didn't have the power to order Ford to pay back the money; that the sum was too insignificant to amount to a real conflict of interest; or that it was an "error in judgment".

Prong One:  The MCIA doesn't apply

The first prong doesn't seem to attack the core of what this case is about - that's the February vote, not the allegedly improper fundraising and failure to repay the money.

Prong Two:  No power to order repayment

The second prong, however, is more interesting.  Whether or not Council had the power to order repayment of the money, to my mind, is somewhat moot:  Council did so order.  This order would be subject to an application for judicial review, if Council was exceeding its jurisdiction, and there was no such judicial review.  However, there`s a related corollary, that Council had no ability to enforce the order.  That there was no mechanism by which Ford could be compelled to pay the money.

And therefore, if Ford`s pocketbook was already safe from the clutches of Council, he obviously didn't have a pecuniary interest in the vote.

There are, however, two problems with this argument.  Firstly, it's overly technical and hypothetical - it seems difficult to explain Ford's participation in the discussion and vote if he actually believed that Council had no teeth to enforce the order.  It seems that this is an invention by a lawyer after the fact, to go in and say, "Well, yeah, it looked like he was voting in his own interest, and he may even have believed he was voting in his own interest, but he really wasn't."

If Ford had been shot down, and Council regularly repeated it's order for him to repay the monies, would he eventually have paid it?  Maybe - not doing so may have cost too much political capital.  So even if Council didn't have the power to compel payment, it is not so clear that Ford's bank account isn't up $3150 because of that vote.

Perhaps more importantly, it isn't so clear that the Council lacks the teeth to enforce such a measure.  It is arguable whether or not that order falls within Council's mandate under the Code of Conduct itself, and the City of Toronto Act does not authorize an order to reimburse third parties in such a situation...but it does provide other enforcement mechanisms, including a suspension of pay for up to 90 days.  Part of the motion Ford voted on was that Council would take no further action on the matter.  So maybe Council can't force him to pay $3150 to a third party, but they're more than entitled to take $43,200 out of his pay.  Looks like teeth to me.

Prong Three:  The Sum is Too Small

This looks, at a glance, like a really tenuous argument, but it may not be.  There's actually an exception in the MCIA for an interest "which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member".

For example, when Mel Lastman was mayor, and Council was criticizing and taking on the police "True Blue" campaign, and True Blue retained Goodmans, a law firm of which Dale Lastman (Mel's son) was a partner, the Court - on an unchallenged application which Mel initiated proactively - concluded that the interest was too remote or insignificant to be regarded as likely to influence him.

To Rob Ford, three grand isn't a lot of money.  This is true.  He makes over $170,000 per year, and is quite wealthy to begin with.

Still, the interest is not at all remote, and not really all that small.  The vote itself was specifically on whether or not to continue to go after Ford for the money, and even though we aren't talking about a fortune, it's simply untenable to argue that the fact that it is his own pocketbook "cannot reasonably be regarded as likely to influence" him.

It's a week's wages for him, and given how significantly elections are affected by relatively modest differences in taxation, I'd say it's a pretty sure bet that most people are influenced by what happens to a week's wages.  And if you put a lot of weight on Ford's independent wealth, then the conclusion is that, if you're rich, you can vote to put more money in your pocket.  Which seems odd.

Prong Four:  It was an Error in Judgment

This is trickier, because the phrase "error in judgment" is one so utterly defined by judicial interpretation.  This isn't a defence, but if this succeeds then he isn't subject to automatic removal from office.  Still, the Courts have recognized that pretty much every offence - even the most serious crime - can be said to involve an error in judgment, but the meaning of the phrase per the MCIA is somewhat narrower.

You seldom if ever see a case where an 'error in judgment' is found where 'inadvertence' is not also found.

The central difficulty with this argument, however, is one which Clayton Ruby pointed out effectively:  That Rob Ford is unrepentant, not sorry that he participated in the vote, and still doesn't regard the matter as a conflict of interest.

Indeed, Rob Ford has been quoted as saying on the stand that "there's no interest in the city.  This is just my personal issue.  This does not benefit the city in any way.  So this is, to me, not a conflict of interest."

He doesn't see how matters related to compliance with Council's Code of Conduct are of any benefit to the City.  That is somewhat disturbing in its own right, but it cements one conclusion:  He voted on it, and he voted the way he did, in his official capacity as an office holder, because and only because of his personal interest in the matter.  This seems to undermine all his other arguments - i.e. that he had no personal interest, and that his personal interest was so small that it couldn't have influenced him.

If he came back and said "I wasn't thinking about it in those terms at the time, but I can see now why it might be seen as inappropriate", that might justify a finding of "error in judgment" (and wouldn't interfere with his ex post facto defence that the Council has no teeth, either).  But this...?


Considering the nature of the facts, removal from office seems like an overly harsh response.  In advocacy courses, law students are often taught that the way to win is by making the judge want your side to win, and then presenting viable legal arguments of how to get there.  Lenczner's arguments may arguably be viable, and I wouldn't be surprised if they succeed, because there's fundamentally a solid point:  Should the elected mayor of a major city be removed from office by the Courts because of a tenuous issue regarding a modest amount of money?

Still, I think that, by arguing that the vote had nothing to do with the city's interests, and only to do with his interests, and by still failing to see what's wrong with casting a vote as mayor in favour of his own personal interests, Ford may be undermining that fundamentally solid point.  We have a legal right to expect our public office holders not to vote to advance their own personal interests, and when a public office holder doesn't see what's wrong with doing just that, that would seem to illustrate the very purposes of the MCIA's automatic removal from office.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.


  1. Except that by arguing for himself, the mayor made certain that everyone was aware of the situation. In a sense he did declare his interest very clearly, just as the spirit of the act would want, in a different situation where the act would apply because of "a pecuniary interest WITH the electors." Here there is no such interest with the electors.
    I would argue too that such an interest, where is exists, must be a clear one, not something people have to work very hard to wrap their minds around.

  2. Thanks for the comment. However, while we usually use the language of "declaring" a conflict, the MCIA is not satisfied merely by disclosure. In addition to disclosure of the interest, it also requires the member in conflict to "not take part in the discussion of, or vote on any question in respect of the matter" and to "not attempt in any way whether before, during or after the meeting to influence the voting on any such question." (Also, where a meeting on the matter is closed to the public, the member must absent himself.)

    And the MCIA doesn't address the interests of the electorate. It doesn't require that the member's interest be shown to be *in conflict* with the public interest. It is rather presumed that, if a matter is being discussed and/or voted on by Council, there must be some public interest at stake.

    In other words, the question isn't whether or not the public had an interest in the outcome of the vote (though it did); the question is whether or not Ford had an interest in the outcome of the vote. And that is not particularly difficult to wrap one's head around.