Court sides with watchdog in battle against Vaughan deputy mayor

An Ontario court has refused to overturn an integrity commissioner's finding that a Vaughan councillor intimidated city staff.

Thestar.com
Sept. 21, 2016
By Noor Javed

An Ontario court has dismissed a legal challenge launched by Vaughan’s deputy mayor in an attempt to quash an integrity commissioner’s report that found he created a “culture of fear” among city staff and interfered in the city’s procurement process.

Veteran Councillor Michael Di Biase asked for a judicial review of Suzanne Craig’s 2015 findings, arguing that her investigation “lacked procedural fairness” and that the city “erred” in accepting her decision.

During a two-day hearing in May, Di Biase’s lawyer Morris Manning argued that the panel of three judges should quash Craig’s findings and overturn a council decision which docked him 90 days pay - the harshest penalty allowed council under the Municipal Act.

The divisional court decision, released this week, dismissed Di Biase’s complaints - and in doing so, threw its support behind the role of accountability officers in the province and further clarified the tools at their disposal to hold publically elected officials accountable.

“Because I am satisfied that there is no merit in any of the applicant's submissions, I reject the applicant’s contention that the City of Vaughan erred in law in accepting the Integrity Commissioner's Final Report,” wrote Justice Frank Marrocco on behalf of the panel of judges.

Craig’s code-of-conduct investigation into Di Biase, who has been a politician for over three decades, involved months of research and confidential interviews with more than 30 city staff. Some of them told her that Di Biase was “intimidating” and used “abusive language” when they opposed his interference in the city’s tendering process and efforts to secure municipal projects for a local contracting company.

Di Biase argued he was denied natural justice because he was unable to see specific allegations against him by staff, who spoke to Craig on the condition of anonymity, and because she had access to his emails.

The court disagreed.

“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,” the decision reads.

The court said that his emails were hosted on the city’s computer systems and were not personal in nature.

“As a result, there is no reason to view them as anything other than “property belonging to the Municipality,” the decision says.

In a statement, Craig said the courts clarified and confirmed the importance of confidentiality during in the investigation process.

“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,” said Craig. “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,” she said.

“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.”

Di Biase said he was “quite disappointed not only in the result but also in the reasoning used by the court to reach their decision.”

“I am disappointed that the court did not see the injustice in how my case was handled by the Integrity Commissioner,” said Di Biase in a statement.

“I did nothing wrong and had I been given a proper opportunity and all the necessary information to understand the full case against me, my innocence would have been demonstrated,” he said, adding that he would not be appealing the decision.

According to the court decision, the parties are not seeking costs.

Even so City of Vaughan taxpayers will be left footing the bill for the legal proceeding launched by Di Biase.

According to the city, “the total legal costs for both the city’s and the Integrity Commissioner’s counsel are $134,683.”

Di Biase’s legal fees were not covered by the city.

The court’s decision comes as Di Biase also faces an OPP probe for “allegations of criminal wrongdoing,” according to provincial police, who confirmed Wednesday the investigation is ongoing. Di Biase denies any wrongdoing in the case.