Friday, April 12, 2013

Paul Magder Applies for Leave to Appeal to the Supreme Court of Canada

I've been following the Magder v. Ford case with some interest.  I looked at the issues of the case at the time of the initial hearing in September, explained Justice Hackland's decision on the Application in November, canvassed the issues in the Municipal Conflict of Interest Act that do need legislative intervention, and commented on the Divisional Court overturning Justice Hackland's decision.

Last month, Magder filed his application for leave to appeal to the Supreme Court.  And this is where things get interesting.

The SCC's staff has acknowledged receipt of an 'incomplete' application, apparently because of the absence of a formal Court of Appeal order.  Not only is there no formal Court of Appeal order, though - there was no Court of Appeal hearing.  Court staff are very competent, but they usually have rigid procedures set up for processing large volumes of materials, and so when a lawyer wants to do something out of the ordinary - even if it's technically proper - it can feel like we're trying to fit a square peg in a round hole, from an administrative point of view.

The Brief Summary

Rob Ford violated the City's Code of Conduct, and was ordered in 2010 to personally repay $3150 to donors collected improperly by his football charity.  He never paid, and the matter came back on for Council discussions in February 2012.  Rob Ford delivered a passionate speech explaining why he shouldn't have to personally repay the money, and proceeded to vote in favour of a successful motion to rescind the previous order and take no further action on the matter.

In March of last year, Paul Magder - represented by Clayton Ruby - filed an Application under the MCIA to have Ford removed from office for voting in favour of his own pecuniary interests.  Ford - represented by Alan Lenczner - defended on several grounds, which I explained in detail in my previous entries.  Hackland didn't accept the defences, and ordered Ford removed from office.  Ford appealed to the Divisional Court, and obtained a stay of Hackland's order, on consent.

The Divisional Court concluded that Council didn't have the right to order Ford to personally reimburse donors, and therefore his pecuniary interests weren't engaged by the vote, and accordingly there was no violation of the MCIA.  It's a technical decision, and a little confusing because they found that he actually did have a pecuniary interest when voting on the motion, but the financial sanction was a nullity.

More recently, the Divisional Court denied Ford's claim for over $115,000 in legal costs.  (It was a partial indemnity claim in the first would expect that his actual legal fees were over $150,000.)  Because most of his arguments failed, the matter raised novel issues of public importance, and - importantly - the successful argument turned on the invalidity of a Council Order which had never been challenged prior to the bringing of the Application, Magder doesn't have to pay Ford's costs.

What Next?

The matter's just about moot.  It's been over a year since the Application was brought, and it's actually fairly incredible that we're already through an Application and Appeal.  In the legal system, that's fast.  But it will be some time before we know if the Supreme Court will hear it, several more months before a hearing, and probably more months beyond that before we get a decision.  If the Supreme Court overturns the Divisional Court's ruling, we'll be lucky if we aren't already into the 2014 election campaign.

But it's interesting nonetheless.  What's catching my attention now is the jurisdictional issue.  The Court of Appeal has consistently held that the MCIA does not give it jurisdiction to hear appeals from the Divisional Court, because the Divisional Court decision is "final".  I am 100% confident that there is a possible appeal to somebody from the Divisional Court, whether it's to the Court of Appeal or to the SCC.  (As a simple constitutional matter, the legislature cannot foreclose appellate review to the Supreme Court.)  I initially thought that the Court of Appeal might be wrong about its own jurisdiction, but I've been convinced that, whether or not an appeal to the Court of Appeal is possible, an appeal directly to the Supreme Court is probably the appropriate course.  s.38 of the Supreme Court Act gives the Court jurisdiction to hear appeals "per saltum" - by jumping.

Whether or not the Supreme Court will agree to hear the case is an entirely different question.

I've seen plenty of different opinions on that prospect.  Some think that the Supreme Court won't want to touch it with a ten-foot pole, because of the political aspects, or because of the 'finality' of the Divisional Court decision.  I don't really agree with that; in the last several years, I've found the present Supreme Court to be relatively fearless.  Paul Daly, a law professor in Montreal, argues that, because the Divisional Court's decision is on such a narrow technicality, it lacks the 'public importance' to make it suitable for Supreme Court consideration.  By contrast, Eugene Meehan, a leading expert on Supreme Court law, takes a broader view of the issues, thinking that the odds of them hearing it "approach 50/50".

If the Supreme Court agrees to hear it, there will be plenty of interesting issues to consider:  What is the impact of the 'finality' provision in the MCIA?  What is the appropriate appellate route?  (The Supreme Court would definitely address those, if it heard the appeal, to prevent every conflict of interest case leading to a per saltum appeal.)  And then, beyond that, the meat of the Application itself.

If the Supreme Court doesn't agree to hear it, don't expect much fanfare:  They never release reasons for refusing to hear an appeal.


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.

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