Adjala-Tosorontio mayor cleared of pecuniary interest accusation

AWARE News Network

The following is the text of an Integrity Commissioner report:

TOWNSHIP OF ADJALA-TOSORONTIO INTEGRITY COMMISSIONER, GUY GIORNO

Citation: Anderson v. Pinto, 2020 ONMIC 11
Date: September 28, 2020

REASONS FOR DECISION

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council’s consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision.

No council decision. Because this is an inquiry under the Municipal Council of Interest Act, the Integrity Commissioner’s decision is not required to be filed with the municipal council.

CONTEXT

1. Among their responsibilities, municipal Integrity Commissioners in Ontario conduct inquiries into applications alleging that council members or members of local boards have contravened the Municipal Council of Interest Act. At the end of such an inquiry, the Integrity Commissioner shall decide whether to apply to a judge under section 8 of the Municipal Conflict of Interest Act for a determination as to whether the member has contravened section 5, 5.1 or 5.2 of that Act, and shall publish reasons for the decision. Such decision is not subject to approval of the municipal council and does not take the form of a recommendation to council. There is, therefore, no municipal council resolution necessary to give effect to the decision.

THE APPLICATION

2. Section 223.4.1 of the Municipal Act allows an elector or a person demonstrably acting in the public interest to apply in writing to the Integrity Commissioner for an inquiry concerning an alleged contravention of section 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act (MCIA) by a member of council or a member of a local board.

3. David Anderson (the Applicant) alleges that Mayor Floyd Pinto (the Respondent) contravened sections 5, 5.1 and 5.2 of the MCIA by failing to declare a pecuniary interest in relation to a matter, and failing to withdraw from participation in discussion and from voting on the matter, at the November 13, 2019, Council meeting.

4. The Application was made December 3, 2019. I assigned it File No. MCIA-2019-04.

DECISION

5. Subsection 223.4.1 (15) of the Municipal Act states that, upon completion of an inquiry, the Integrity Commissioner may, if the Integrity Commissioner considers it appropriate, apply to a judge under section 8 of the MCIA for a determination whether the member has contravened section 5, 5.1 or 5.2 of that Act.

6. After considering all the evidence and the submissions of the parties, I have decided that I will not apply to a judge for a determination whether Mayor Floyd Pinto has contravened section 5, 5.1 or 5.2 of the MCIA.

7. Subsection 223.4.1 (17) of the Municipal Act requires me to publish written reasons for my decision. These are my reasons.

PROCEDURAL ISSUE

8. The Municipal Act assigns several functions to Integrity Commissioners. One function is to inquire, as I am now doing, into an allegation that the MCIA has been contravened.

9. Another function is to provide advice about a Council Member’s obligations under the MCIA, upon the written request of that Council Member.

10. The Legislature appears to have contemplated that an Integrity Commissioner might give MCIA advice to a Council Member and then later receive an Application that the Member contravened the MCIA in relation to the same facts. That is precisely what happened here.

11. Mayor Pinto asked me for advice, and I informed him that he did not possess a pecuniary interest in the matter. Subsequently, the Applicant, not knowing about my advice to the Mayor, made this Application.

12. While the Legislature contemplated this type of situation, the Municipal Act addresses it incompletely.

13. Clause 223.5 (2.3) (c) of the Municipal Act provides that in these written reasons I may disclose the advice I gave to Mayor Pinto. Prior to this point, however, the Municipal Act required strict confidentiality, and prevented me from sharing the advice with the Applicant. An Integrity Commissioner is forbidden from telling an Applicant, at the outset of the process, that the Respondent has already received Integrity Commissioner advice. Only at the end of the inquiry is an Integrity Commissioner free to disclose the advice that could have obviated the entire proceeding.

14. The other circumstances in which an Integrity Commissioner may release the written advice that has been provided to a Member are: the Member’s written consent,[1] the Member’s release of only part of the advice,[2] a public meeting as part of the inquiry into an MCIA allegation,[3] and an application to a judge under the MCIA.[4] None applied in this case.

15. The Mayor did, in his Response to the Application, disclose the advice I had given him. The law did prevented me from doing this, but it allows him.

16. After receiving the Mayor’s Response, the Applicant nonetheless wanted the inquiry to continue.

BACKGROUND

17. The background to this case is set out in the report Re Adjala-Tosorontio (Council Member), 2019 ONMIC 16 (CanLII).

18. The Mayor was the Respondent in a Code of Conduct inquiry about an alleged breach of the confidentiality of a closed session of Council. In particular, the Mayor was alleged to have shared confidential information with the news media. To investigate the complaint, I needed to know whether the content of a news story accurately reflected what occurred during closed session.

19. On November 13, Council considered my interim report (2019 ONMIC 16 (CanLII)) and it considered a motion on whether I would have access to the information necessary for me to do my job. The Mayor voted on that motion.

20. Prior to the meeting, the Mayor asked me whether he could participate in consideration of my interim report. I advised, in writing: “Under the Municipal Conflict of Interest Act you do not need to declare a pecuniary interest in my interim report. The report makes no findings or recommendations of a contravention. At this stage it is all procedural.”

21. I continued: “The issue of declaring under the MCIA only arises when there is a recommendation to suspend someone’s pay. In that situation, the Council Member can remain in the meeting and even speak to the matter; what the Council member cannot do is vote.”

22. The Applicant takes the position that the Respondent has a pecuniary interest in the November 13 discussion and vote because if ultimately I were to find a Code of Conduct contravention, then I might recommend a suspension of pay and Council might adopt such a recommendation.
PROCESS

23. The statutory deadline for an Integrity Commissioner to complete an MCIA inquiry is ordinarily 180 days.

24. However, Ontario Regulation 73/20, made as a result of the COVID-19 emergency, had the effect of suspending the deadline, and stopping the clock, as of March 16, 2020.

25. Ontario Regulation 73/20 was revoked, and the clock restarted, on September 14, 2020.

26. This determination is made within the statutory time limits.

27. In making my decision, I have taken into account all the submissions of the parties and all of the evidence obtained during the inquiry.

ANALYSIS AND FINDINGS

28. When the Mayor asked in writing for my advice, I knew that my interim report would be considered by Council. I did not know that Council would consider the motion it did (effectively a vote on whether I would receive access to the information I feel I need to do my job).

29. As I understand, the fact that my advice to the Mayor was given before it was known what motion would be debated and put to a voted, is why the Applicant does not feel my advice is determinative and wanted to proceed to a final determination in this inquiry.

30. Knowing now what was moved and debated at the November 13 Council meeting, I am still of view that the Mayor did not possess a pecuniary interest (that is, a financial interest) in the decision in which he participated and voted.

31. As I noted in Anderson, D. v. Bays, 2020 ONMIC 10 (CanLII), at paragraph 20, the jurisprudence makes clear that a pecuniary interest is actual,[5] definable[6] and real,[7] not speculative or remote.

32. A pecuniary interest does not arise from speculation based on hypothetical circumstances.[8] The pecuniary interest must exist at the time the matter is considered by Council or committee.[9] Possible and potential future happenings do not amount to a pecuniary interest.[10]

33. Based on these tests, the Mayor did not have a pecuniary interest in my interim report, 2019 ONMIC 16 (CanLII), even though he was the Council Member who was the subject of that inquiry.

34. The Mayor possessed a non-pecuniary interest in the interim report involving his case, but non-pecuniary interests are not covered by the MCIA.[11]

35. There is no reason for me to apply to a judge for a determination as to whether Mayor Floyd Pinto has contravened the MCIA.

CONCLUSION

36. I will not apply to a judge under sections 5, 5.1 and 5.2 of the MCIA for a determination as to whether Mayor Floyd Pinto contravened the MCIA at the November 13, 2019, meeting of Council.

PUBLICATION

37. The Municipal Act requires that after deciding whether or not to apply to a judge, the Integrity Commissioner shall publish written reasons for the decision. This decision will be published by providing it to the Township to make public, and by posting on the free, online CanLII database as decision 2020 ONMIC 11.

38. Subsection 223.5 (2.3) of the Municipal Act states that I may disclose in these written reasons such information as in my opinion is necessary. All the content of these reasons is, in my opinion, necessary.

Guy Giorno

Integrity Commissioner

Township of Adjala-Tosorontio
September 28, 2020