Wednesday, 20 March 2013

Ford Conflict may go to Supreme Court


In 2012, Ford courted controversy when he was caught soliciting funds from registered lobbyists for the “Rob Ford Football Foundation”. In soliciting the donations, city council determined that Ford violated the city’s code of conduct and displayed an “improper use of influence”. That November, Justice Hackland ordered Ford’s mayoral seat vacated after finding Ford breached the conflict-of-interest provisions of the Municipal Conflict of Interest Act (MCIA) when he participated in a debate and vote regarding a council order that he personally reimburse the funds he had solicited. Ford appealed to the Divisional Court.

On January 25, 2013, the Divisional Court overturned Justice Hackland’s decision and ruled that the actions of city council were ultra vires, meaning that in ordering reimbursement of the funds council was acting outside the scope of its authority. Since council did not have the authority to order this reimbursement, the Court held that Ford could not have had a conflicting interest in the vote. After the ruling, the CBC reports that a jubilant Ford vowed that he and his colleagues would “continue doing the work we were elected to do.”[1]

Only about a month following Ford’s returned to office, concerns were raised that he was not merely continuing the work he was elected to do, but was also continuing the behaviour that brought him before the courts in the first place. The Toronto Star reported that Ford was still sending out letters to registered lobbyists to solicit donations for the football foundation, with one registered lobbyist stating that he received a fundraising letter from Ford a mere three days after Ford won his appeal[2].

One city councillor is reported to have said: “It’s a very dangerous sign that the mayor still thinks he can send letters to lobbyists and ask them for money.”[3] Indeed. Not only does Ford show an apparent hubris in failing to correct his behaviour, but there is also an implicit coercion in using the power of his position to solicit funds from registered lobbyists. Ford may not think he is acting coercively, but the fact that he is mayor could make lobbyists feel they must donate if they are to be treated fairly by the city. If Ford does not see this, there are problems much larger than his hubris at play here. The nature of these problems aside, Ford has indicated that he intends to run for Mayor again in 2014[4].

It seems, however, that he may be planning too far ahead. Leave to appeal the Divisional Court decision has been requested from the Supreme Court. Clayton Ruby, a lawyer for Paul Madger, the Toronto resident responsible for bringing the conflict-of-interest case against Ford, has argued that this case raises important issues related to governance that are of vital public importance. The crux of the request for leave to appeal is that this case raises questions about the nature and parameters of the authority of municipalities to take public officials to task for violating ethical boundaries. To this extent, it is argued that the Divisional Court’s ruling, if allowed to stand, “will undermine municipalities’ efforts to confront modern challenges.”[5] 

Cognizant of the approaching 2014 elections, Madger has requested an expedited appeal and is attempting to use a per saltum provision of the Supreme Court Act[6]. “Per saltum” is a Latin phrase meaning by a leap or bound. The provision allows a party to a proceeding to effectively jump over lower courts and bring an appeal directly to the Supreme Court where either: (i) both sides agree; or (ii) only one side wishes to appeal, but the issue is one the Supreme Court deems to be of public importance[7].

Madger is asserting that this case meets the latter criterion, and so does not require Ford’s agreement in order to bring the appeal. It cannot be said whether the leave to appeal will be granted, but it’s not outside the realm of possibility. As Madger’s factum points out, “a more deferential, generous and flexible approach”[8] to questions concerning the powers of municipalities has been taken by the courts in recent times.

All Canadians, by necessity, live in a municipality or some variant thereof. The issue of public officials violating ethical rules is one that will impact on all Canadians. If the Supreme Court agrees to hear the case this matter will finally be put to rest and we will all have a better sense of the ethical parameters that must guide and constrain our public officials. Should the Supreme Court choose to hear the case, “Ford Nation” may very well be at an end.



[7] Supreme Court Act, RSC 1985, c. S-26, ss. 38-40(1).

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