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Digest of the week - “Conflict-ing Emotions”

Digest of the week - “Conflict-ing Emotions”

Magder v. Ford

2013 CarswellOnt 387
Ontario Superior Court of Justice (Divisional Court)

Judgment: January 25, 2013

Proceedings: reversing Magder v. Ford (2012), 352 D.L.R. (4th) 366, 112 O.R. (3d) 401, 2012 CarswellOnt 14510, 2012 ONSC 5615 (Ont. S.C.J.)

Municipal law | Council members | Conflict of interest | Failure to disclose interest |Pecuniary interest |  What constitutes

Respondent municipal councillor, later mayor, used certain municipal resources, including letterhead, and inherent status to solicit funds for mayor's private charitable foundation — Municipality's integrity commissioner issued report concluding that fundraising activity constituted violation of Council Code of Conduct promulgated under City of Toronto Act, 2006 ("COTA") — Pursuant to s. 160(5) of COTA, council had power to impose reprimand or suspension of council remuneration for Code violations by sitting councillors — Upon receipt of commissioner's report, council passed resolution ordering mayor to personally reimburse all donations obtained by way of fundraising activity said to violate Code — Mayor declined to reimburse donations, and commissioner advised council of mayor's ongoing decision not to comply with resolution — Motion was subsequently brought before council to rescind resolution — Chair advised mayor that mayor may have been in conflict of interest, and mayor chose to participate in debate on motion and to vote on motion — Municipal resident brought application for declaration that mayor was in violation of s. 5(1) of Municipal Conflict of Interest Act ("MCIA") and for order declaring mayor's council seat vacant — Application was granted and mayor appealed — Appeal allowed — Subsection 5(1) of MCIA does apply to Code violations — However, having regard to s. 160(5) of COTA and enumerated penalties for Code violations contained therein, council lacked statutory power to order mayor to reimburse donations in first instance — Accordingly, resolution was ultra vires council and resolution was nullity — As resolution was nullity, mayor faced no validly-enacted risk to mayor's financial interests sufficient to constitute "pecuniary interest" for purposes of MCIA — Pecuniary interest was required to establish MCIA breach which could trigger council seat vacancy — Accordingly, appeal was properly allowed and application dismissed.


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