Municipalities should be aware of their ability to control their own process and implement a variety of appropriate procedural and other remedial measures when a councillor engages in improper conduct. A recent resolution passed by the Council in Wawa is a good example of the type of discipline a council can impose in order to control councillor behaviour.
Based on the recitals contained in the resolution, it appears a councillor and her husband brought a complaint against the CAO, who in turn brought a harassment complaint against both of them. The investigator found that the councillor and her husband, “did in fact harass [the] CAO in an effort to obtain a personal benefit to avoid paying municipal taxes or avoid enforcement of their municipal tax arrears.”
Council found that the councillor’s behavior was in breach of her oath as a councillor and against the best interests of the municipality and imposed a series of measures to address her behavior, including:
- only being permitted to communicate with staff through a single e-mail address;
- being prohibited from entering the municipal building except to pick up mail, attend meetings or with the express approval of council;
- being removed from all committees; and
- not being eligible to be appointed deputy mayor.
The full text of the resolution is found at the end of this article.
The law on municipal council’s authority to sanction its members is generally based on the broad powers granted to municipalities in the Municipal Act, 2001, S.O. 2001, c. 25, and has been interpreted by the Divisional Court in the Magder v. Ford case.
Section 9 of the Municipal Act, 2001 provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority, while section 11 allows a municipality to pass by-laws respecting the governance structure of the municipality and the accountability and transparency of the municipality and its operations. Also, section 8 emphasizes that the powers of a municipality “shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.”
The Courts have held that, read together, these provisions permit a municipality to implement a range of proportionate and remedial measures to address the conduct of its councillors. Such is true, even if the improper conduct does not constitute a technical breach of the municipality’s Code of Conduct, if any has been imposed under the Act. The Courts have also mentioned that the remedial measures imposed must be logically connected to the permissible objectives of the municipality in imposing the disciplinary measure.
However, while a municipal council is granted broad authority, the Municipal Act, 2001 does impose some restrictions through section 223.4(5). Such restrictions were discussed by the Divisional Court in the Rob Ford conflict of interest case, Magder v. Ford, 2013 ONSC 263.
In Ford, the Integrity Commissioner found in a report that Mr. Ford, a member of council, breached three articles of the City’s Code of Conduct dealing with gifts and benefits, use of city property, services and resources, and improper use of influence. The breaches occurred because of Mr. Ford’s use of the City of Toronto logo, City staff, and his status as councillor to solicit funds for a charitable foundation, the Rob Ford Football Foundation, which he had established to fund the purchase of football equipment for high school football teams. As a result of her findings, the Integrity Commissioner recommended that Mr. Ford repay the donations received. It became clear that Mr. Ford had never personally received any of the donor funds, which had always been paid to the Toronto Community Foundation.
The report was eventually tabled and approved by council without debate and Mr. Ford was thereby required to make the recommended repayment. On a motion to reconsider which was defeated, Mr. Ford voted. A few months later, the Integrity Commissioner issued a report on compliance, and a motion was made before council to rescind its prior decision. Mr. Ford voted in favour of this motion, which was eventually passed, resulting in Mr. Ford no longer being required to repay any money to donors.
As a result of these events, a court application was initiated, which alleged that Mr. Ford breached the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 by voting on the motion to rescind. The applications judge ruled against Mr. Ford, holding that he breached the Act when he voted as the motion was clearly one in which he had a pecuniary interest as defined in the legislation. On appeal, however, the Divisional Court overturned this decision, finding that the remedial measures imposed by council requiring Mr. Ford to repay were clearly ultra vires, rendering the decision a nullity and therefore Mr. Ford had no legally enforceable pecuniary interest when he voted on the motion to rescind.
Important for our discussion is the assessment as to why the measures imposed by council were determined to be ultra vires its jurisdiction. The Court held that despite council’s broad powers, municipalities are still entirely creatures of provincial statute and accordingly, they can exercise only the powers which are conferred upon them by such statutes. The Court also emphasized the well-established principle that when specific powers have been provided for in a piece of legislation, a general power cannot be used to extend the clear scope of the specific provisions.
Applying such concepts, the Court found that the disciplinary measure imposed by council requiring Ford to repay the money received by donors constituted a penalty or sanction as it was being used for a punitive purpose. The Court stated that section 160(5) of the City of Toronto Act (223.4(5) of the Municipal Act, 2001) clearly limited the imposition of penalties or sanctions, as distinguished from other remedial measures, to
- A reprimand, or
- Suspension of 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.
The Court concluded that because the penalty or sanction requiring Mr. Ford to repay did not fall within one of the two penalties or sanctions that council had the power to impose, the decision was ultra vires the powers of council.
It should also be noted that section 223.4(5) of the Municipal Act, 2001 limits the imposition of penalties or sanctions to situations in which a Code of Conduct is in place and an investigation by an Integrity Commissioner has been completed in which it has been concluded that there has been a breach of the Code. Without these two preconditions, no penalty and sanction of any kind may be imposed.
Therefore, when implementing measures to deal with improper conduct, council should turn its mind to the purpose of the measure and whether or not it would be classified as a penalty or sanction. If it is such, council should ensure that the sanction falls within the two permitted penalties outlined in section 223.4(5).
With regards to other remedial measures, council has a broad discretion to tailor the remedy to the particular situation, but must take care to ensure the remedy is reasonable and justified. The Divisional Court specifically stated that “other remedial measures” are available to council to carry out the objectives of a code of conduct. Examples endorsed by the Court included an apology and requiring a return of improperly appropriated municipal property. So long as the remedial measure is not a “penalty” a council can pass resolutions to control the behavior of its members. The recent example from Wawa shows the extent to which councils might go to express displeasure over one of its members’ behavior.