Vaughan Deputy Mayor Michael Di Biase loses bid to quash scathing ethics report, overturn pay suspension

Divisional court rejects arguments for squelching integrity commissioner's findings, reversing council's penalty

Yorkregion.com
Sept. 20, 2016
By Adam Martin-Robbins

Vaughan Deputy Mayor Michael Di Biase failed in his bid to have a court quash a scathing report by the city’s ethics czar and overturn the penalty imposed by his council colleagues.

In a ruling released Monday, a panel of three divisional court judges rejected arguments made by Di Biase’s lawyer, Morris Manning, during a judicial review hearing in May.

Manning aimed to have the court squelch the findings of a code of conduct investigation by Integrity Commissioner Suzanne Craig and reverse a 90-day pay suspension, amounting to about $21,000, imposed by council based on her findings in April 2015.

“Because I am satisfied that there is no merit in any of the applicant’s (Di Biase’s) submissions, I reject the applicant’s contention that the City of Vaughan erred in law in accepting the Integrity Commissioner’s final report,” Justice Frank Marrocco wrote on behalf of the panel in a 34-page decision.

Di Biase, a veteran councillor and former mayor, said Tuesday he’s “surprised” by the ruling, but declined to comment further until he’s spoken to Manning.

“I want to read it, I want to understand it and I haven’t had a chance to do that yet,” he said.

Craig, meanwhile, said she’s “grateful for and humbled by” the court’s decision.

“This is a clear victory for those who had the courage to believe in the process and believe that doing the right thing even at a personal cost, is an important tool for the public to hold elected officials accountable,” she wrote in an email.

During the two-day judicial review, Manning argued Di Biase was denied “procedural fairness” and was unable to adequately defend himself against the allegations made against him, including that he bullied and intimidated city staff. Manning’s argument centred, in part, on Craig’s refusal to disclose the names of 32 people she interviewed during a four-month probe, as well as the fact she didn’t hand over any of the documents given to her by some of those people.

Craig reported she protected the identities of the witnesses because many of them feared reprisals.

The court ruled under the city’s code of conduct complaint protocol, which lays out the rules the integrity commissioner must follow, she isn’t required to identify the witnesses she interviewed nor is she required to provide documents obtained from them.

“I am satisfied that the Integrity Commissioner exercised her discretion in a manner that properly balanced the applicant’s right to meaningfully respond to allegations in the complaint and the need to protect city staff who had cooperated in her investigation,” Marrocco wrote.

Craig launched an investigation 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 Lorello’s 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.

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

Craig told Lorello, as she’s required to do, it was a matter for the police to investigate.

(A police probe was launched shortly after and an OPP spokesman confirmed Tuesday the investigation is ongoing.)

Craig decided two other items in Lorello’s complaint were within her jurisdiction to investigate. Those 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 argued since Craig determined a portion of Lorello’s complaint was a criminal matter related to Maystar and the two items she investigated involved the same firm, she ought to have suspended her probe and handed the entire matter over to the police.

The judges spent a fair bit of time during the hearing dealing with that argument, but ultimately rejected it.

“This was an important decision not only for me and the City of Vaughan, but for all of the accountability officers in Ontario at the municipal level,” Craig said. “The confidentiality provisions of the Municipal Act were prescribed for a reason and with this decision, the court confirmed this very vital principle of confidentiality upon which the effectiveness of accountability offices operate.”

The city spent $134,683 on two lawyers for the hearing, one for the municipality and one for the integrity commissioner.

Di Biase said he doesn't feel obligated to reimburse the city.

“The decision was made that we would each pay our own costs and it was accepted by all the lawyers present on May 17 when the judicial review took place, so I’ll abide by that,” he said. “I have my own costs to deal with and so I’ll just abide by that.”