Vaughan’s deputy mayor to take on ethics czar in court
Victory for Di Biase could render integrity watchdogs toothless, says lawyer.

thestar.com
May 16, 2016
By Noor Javed

This week, Vaughan’s ethics commissioner will find herself in a place she likely never expected when she signed up seven years ago for the job to bring integrity back to the city north of Toronto.

Suzanne Craig’s efforts, it appears, have landed her in court.

Craig is being summoned to Osgoode Hall on Tuesday to defend a legal challenge over a scathing report she rendered last year that found Vaughan’s deputy mayor had created a “culture of fear” among city staff and interfered in the city’s procurement process.

Veteran councillor Michael Di Biase requested a judicial review of Craig’s decision and will ask a panel of three judges during the two-day hearing to quash Craig’s findings and in the process, overturn a council decision to dock him 90 days pay - the harshest penalty allowed council under the Municipal Act.

A judicial review is a court proceeding in which a judge reviews the lawfulness of a decision made by a public body. And Di Biase, who has been a politician in Vaughan for three decades, is arguing the city “erred” by adopting Craig’s report and the entire process “lacked procedural fairness.”

“The commissioner denied the applicant natural justice by failing to provide the information necessary for him to be able to make a full answer and defence to the allegations brought against him,” according to his statement of claim.

Di Biase, who is also facing an OPP probe for “allegations of criminal wrongdoing,” did not respond to a request for comment.

Craig’s code-of-conduct investigation involved six months of research and confidential interviews with more than 30 city staff, who told her that Di Biase was “intimidating,” used “abusive language” and created a toxic work environment.

This is not the first time a decision of a municipal integrity commissioner has come under scrutiny in the GTA.

In 2014, Toronto Councillor Giorgio Mammoliti threatened Janet Leiper with a judicial review of her report that found he violated the city’s code of conduct for accepting at least $80,000 in cash as a gift from a fundraising dinner. The issue was later dropped. And in 2015, former Brampton mayor Susan Fennell filed one against the city and the integrity commissioner for docking her pay for spending violations, but later agreed to have it dismissed.

Accountability officers say they will be watching the proceedings closely and expect that regardless of the decision, the outcome will write new law and bring much-needed clarity to the vague legislation governing integrity commissioners.

“The court could say, ‘we understand the legislation calls for secrecy’. . . but they also could say the legislation infringes on a defendant’s rights,” said lawyer John Mascarin, who is the integrity commissioner in three municipalities. He added that some of the problems with the current legislation include that it “lacks teeth,” doesn’t guarantee officers immunity against legal proceedings and allows for commissioners to be terminated by the councils they are criticizing.

According to Di Biase’s statement of claim, he was unable to see specific allegations against him by the staff, who spoke to Craig on the condition of anonymity; also, she had access to his emails.

Craig’s statement of defence says the Municipal Act allows for secrecy to be maintained. “The legislature has accordingly enacted a blanket confidentiality provision that attaches to any information that she receives in the course of her investigation,” she wrote. “The Integrity Commissioner is barred from disclosing information that could identify a person concerned.”

Thus, there is a concern that a decision in favour of Di Biase could fundamentally change the way integrity commissioners do their job, said Mascarin.

“The reason why the secrecy provision is there, is that a lot of complainants wouldn’t come forward unless that statute is there,” he said. “It could completely render moot the functions of integrity commissioners if nobody is coming forward with complaints,” he said.

Craig says such an outcome is further complicated by the fact that municipalities now fall under the jurisdiction of the provincial ombudsman, who says “our office does not replace any local integrity commissioner. However, we can review decisions of those bodies to determine if the appropriate policies and procedures were followed.”

So far the ombudsman have received 10 complaints about municipal officers and auditors.

Craig says regardless of hearing’s outcome, the province, currently reviewing the Municipal Act, needs to weigh in and bring clarity for accountability officers in order to for the role to be effective.

“The question is: what does the province want?” she said. “In essence, their answer has not been to strengthen the role of accountability officers at the local officer, but rather to increase the oversight role of the ombudsman over municipalities,” she said.