Judge to rule on Richmond Hill councillor's disputed campaign expenses audit Aug. 25

Beros and lawyer argue flyer was newsletter

Yorkregion.com
Aug. 2, 2016
By Kim Zarzour

Richmond Hill Councillor Greg Beros will find out later this month if he will face a comprehensive audit of his election expenses.

The audit was ordered in July of 2015 by a joint committee representing York Region municipalities, after a resident questioned a Ward 1 flyer that the councillor said was a newsletter mailed out shortly before the 2014 election.

Beros appealed the decision and that appeal was heard Thursday at the Ontario Court of Justice in Newmarket.

After hearing more than three hours of arguments from both sides, Justice Nyron Dwyer said he would present his decision Aug. 25.

The three-person Joint Compliance Audit Committee had voted unanimously in favour of investigating Beros’ campaign finances, ruling that he may have breached the Municipal Act when he used taxpayer dollars for a mail-out during a time period when election candidates were forbidden to do so.

The mailing, which Beros called a newsletter, but some residents argue was campaign literature, was sent to almost 12,000 addresses in Ward 1 and was billed to the town.

Town policy provided for a “blackout period” beginning Sept. 11, 2014, after which candidates are not permitted to use town resources to send out newsletters to their constituents.

Documents presented at the audit hearing showed Beros delivered the piece of literature to Canada Post after that cut-off date - evidenced by one page of the newsletter promoting himself and listing which councillors opposed his motions presented at council.

In her arguments before the courts this week, Beros’ lawyer Courtney Raphael said the blackout period is a Town of Richmond Hill policy, and may be better dealt with under a Code of Conduct investigation. The audit committee is set up to decide on apparent contraventions under the Municipal Elections Act, not contraventions of municipal policy, and thus should not order an audit in this case.

Barnet Kussner, a partner with WeirFoulds, arguing on behalf of the compliance audit committee, said the issue to be decided is whether the expense of Beros’ newsletter constitutes an election campaign-related expense, which therefore should have been claimed on his expense records and which he did not, in fact, claim.

“The failure to claim an expense the should be claimed is, in itself, an apparent contravention of the act ... It strains credulity to characterize the first page of this newsletter as not in any way constituting self-promotion for the purposes of the upcoming election.”

Judge Dwyer questioned that statement, however, noting the campaign is a full year in length.

“We all get these things and usually just toss them in the garbage ... if this is all there was, I’m having trouble finding where the reasonable grounds are.”

Admitting he was playing “devil’s advocate,” Dwyer said councillors must continue with their jobs even thought there is an election pending, and it could be argued the newsletter, informing constituents of upcoming events in the community, is just part of a councillor’s job.

“How could you say anything during an election cycle without someone saying ‘this is electioneering’? It’s almost impossible.”

That, said Kussner, is what an auditor, “qualified and credentialed”, would analyze, with a “thorough fact-finding”.

This preliminary “gatekeeping stage” should only be considering reasonable grounds - “where there’s smoke there’s a possibility of fire”, he said, adding that an appeals court has never overturned a decision by an audit compliance committee.

Dwyer admitted that it was difficult to make his decision with only one page of a newsletter and no record of what other evidence or discussion was presented in the committee meeting.

He said he would present his decision on the matter on the afternoon of Aug. 25.