Decision on Di Biase’s legal challenge reserved by judging panel

Yorkregion.com
May 18, 2016
By Adam Martin-Robbins

Was Vaughan Deputy Mayor Michael Di Biase denied “procedural fairness” when the city’s ethics watchdog refused to provide him with the names of witnesses who made allegations against him during an investigation last year into a code of conduct complaint?

That’s one of the key questions a panel of three judges will grapple with in determining whether to quash a scathing report (that found Di Biase breached the city’s ethics code) by Vaughan Integrity Commissioner Suzanne Craig and overturn a 90-day pay suspension council imposed on the deputy mayor.

Di Biase and Craig were both in a Toronto courtroom Tuesday and Wednesday as their lawyers, along with an external lawyer representing the city, presented arguments to the panel comprised of Associate Chief Justice Frank Marrocco, Justice Michael Varpio and Justice Carolyn Horkins.

One of the main arguments made by Morris Manning, lawyer for the veteran councillor and former mayor, centred on Craig’s refusal to disclose the names of 32 people she interviewed as part of her four-month long probe and that she didn’t hand over any of the documents given to her by a handful of those people.

Manning argued Di Biase was denied “procedural fairness” and unable to fully and adequately defend himself against the allegations, which included that Di Biase bullied and intimidated staff.

“The issue concerns the right of a person alleged to have breached the code of conduct to defend himself as opposed to the right of confidentiality,” Manning said.

Freya Kristjanson, the lawyer representing Craig, argued the “statutory scheme” Ontario integrity commissioners operate under is an administrative hearing process with relatively minor penalties; the harshest being the three-month pay suspension Di Biase received, which amounted to about $21,000.

Kristjanson argued since it isn’t a judicial tribunal with stiff penalties, such as loss of employment, the rules governing integrity commissioners afford them discretion to decide whether or not to disclose the identity of witnesses, unless they’re named in the complaint form, and how much information to provide the council member being investigated.

In this case, Craig reported she chose not to identify specific individuals because many of them feared reprisals.

“He got what he was entitled to, the gist of the allegations,” Kristjanson said.

In fact, she argued the integrity commissioner “met and exceeded her statutory disclosure obligations.”
Rob Centa, an external lawyer representing the city, doubled down on that argument.

He said the accountability provisions in the Municipal Act, which sets out the framework integrity commissioners operate under, were designed to create a system that is speedy and accessible to the general public.

The intention of those provisions, he noted, is to be able to hold council members accountable for their behaviour while they’re in office.

Given councillors serve four-year terms, the system has less stringent disclosure requirements than a typical court or tribunal process, in part, to allow for a swift process, he argued.

He also noted the provincial government created a more robust system to deal with conflict of interest matters involving councillors, which has stricter rules around disclosure since the penalty can be removal from office.

Centa argued that shows the province intended a less rigorous process, with less stringent disclosure requirements, for integrity commissioner investigations.

Craig’s investigation began in December 2014 following a complaint by Richard Lorello, a city hall watcher and Di Biase’s longtime political rival.

The court heard Craig analyzed his complaint and determined it consisted of four separate items.

She chose not to investigate one item because it related to a matter beyond the six-month time limit set out in the Municipal Act.

She determined another item was beyond her jurisdiction because it was a criminal matter. She told Lorello it should be taken to the police, as she’s required to do.

That matter was an allegation Maystar General Contractors, a Vaughan-based construction firm, did work on Di Biase’s family cottage in exchange for the veteran politician using his influence to advance the company’s business interests with the municipality, court heard.

Craig decided two other items in the complaint were within her jurisdiction.

Those items involved allegations Di Biase interfered in various tendering processes, in contravention of Vaughan’s procurement rules, for projects Maystar bid on as well as allegations he exerted inappropriate pressure on staff in order to secure business for Maystar.

Craig didn’t investigate Maystar and there’s nothing in her reports to indicate the company did anything wrong.

Manning contended since the portion of the complaint Craig determined was a criminal matter related to Maystar and the two items she investigated involved the same firm, she ought to have handed the entire matter over to the police and waited for an investigation to be completed.

The judges spent a fair bit of time on Tuesday dealing with that argument.

“This is a little worrisome,” Justice Horkins said to Kristjanson, at one point. “I’m more concerned about it on a level of fairness. Speaking for myself, it’s an issue that bothers me.”

Kristjanson responded, in part, that it isn’t “normally” the case that administrative proceedings are halted by a police investigation.

She also noted integrity commissioners cannot investigate matters that date back more than six months. So, if Craig had passed the entire matter over to the police and the investigation went into a “black hole” she may never get a chance to investigate the portion of the complaint that falls within her jurisdiction.

The judges said Wednesday they will be reserving a decision on Di Biase’s application until a later date.

All the parties have agreed they will not be seeking to be reimbursed costs as part of the court’s ruling.

Di Biase, accompanied by his wife Eliana, sat in the front row during both days.

He was sporting a charcoal grey, pinstripe suit and appeared stoic, often staring straight ahead, but occasionally glancing at Kristjanson and Centa as they attempted to rebut Manning’s arguments.

Di Biase declined to comment after the hearing, referring all questions to Manning.

“How am I feeling? Hopeful the court will agree with the position (I’ve) taken.That’s all I can say,” Manning said

For her part, Craig said, speaking generally, given the legislation governing integrity commissioners is still in its infancy "the meaning and the full breadth of those provisions” is still being “grappled with.”

“But I think it’s clear that there was an intention on the part of the province to provide an opportunity for members of the public to have access and swift investigation of matters of ethics of their elected officials," she added.