Vaughan deputy mayor won't appeal court decision upholding integrity commissioner's sanctions
Michael Di Biase wanted court to quash report that said he violated city's code of conduct

CBC.ca
Sept. 22, 2016
Andrea Janus

Deputy Vaughan Mayor Michael Di Biase will not appeal a court decision dismissing his challenge of a ruling by the city's integrity commissioner that he violated the city's code of conduct and council's subsequent decision to dock him three months' pay.

Di Biase had filed a judicial review application seeking to quash both the integrity commissioner's final report and council's decision to accept it. On April 17, 2015, Vaughan Integrity Commissioner Suzanne Craig issued her final report following a four-month investigation, saying that Di Biase violated nine clauses of the city's code of conduct, with "serious implications" for the municipality.

Craig recommended that Di Biase be docked three months' salary, the maximum penalty allowed for a code of conduct infraction under the provincial Municipal Act, after finding that he intimidated city hall staff in an attempt to help a private construction company.

On April 21, 2015 council voted to accept Craig's findings and impose the penalty, which amounted to nearly $20,000.

On Monday, three divisional court judges dismissed Di Biase's application, saying "there is no merit in any of the applicant's submissions."

On Wednesday, Di Biase said he is "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," Di Biase said in a statement provided to CBC News.

"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 added that although he feels he would be successful, "I will not be appealing the decision."

On Wednesday, Craig said she was "grateful" for the court's decision.

"It's important for the investigation I conducted, and important for the individuals who came forward who were courageous enough to risk their livelihood, risk their own personal day-to-day living, to come forward and participate in an investigation that could have meant the termination of their employment," she said in a telephone interview.

She added that the decision gives municipal integrity commissioners and accountability officers "some real solid direction in terms of what our powers and duties are."

A week before she issued her final report, Craig released interim findings concluding that Di Biase directed "abusive language" and "intimidating actions" at city staff who rebuffed his attempts to obtain confidential information from them about the bidding process for two major city construction contracts.

"I find that the respondent applied inappropriate pressure to staff with a view to exercising influence or assisting [Maystar General Contractors] with the with the business of the municipality," Craig wrote.

Maystar is a major Vaughan construction company that received more than $150 million in business from the city between 2002 and 2015, including the contract to build Vaughan's new city hall. Craig began her investigation following a complaint based on a CBC investigation from 2014 that reported personnel from Maystar appeared to be helping build Di Biase's family cottage.

The integrity commissioner's report made no findings or comments about Maystar itself. Di Biase denied that the company was involved in the cottage construction.

Before Craig issued her final report, Di Biase's lawer, Morris Manning, wrote a letter to Craig calling her investigation biased and saying she hadn't given Di Biase a fair opportunity to rebut the allegations against him because she withheld details of her evidence.

In the ruling on Di Biase's application, Justice Frank Marrocco, writing on behalf of the three-judge panel, rejected four issues raised by Di Biase's lawyer in seeking to have the report and council's decision quashed, including the claim that Di Biase did not have adequate opportunity to respond to the allegations.

Di Biase's application accused Craig and council of denying Di Biase "natural justice" and breaching "procedural fairness" by conducting and relying, respectively, on a "non-transparent investigation."

Marrocco wrote that he rejected this claim because "the applicant knew the case against him; he decided not to respond to the substance of it."

Marrocco also rejected the argument by Di Biase's lawyer that Craig had operated outside her jurisdiction because her term expired on April 5, 2015. Marrocco noted that council adopted a recommendation that Craig be reappointed for a second term, retroactive to April 5.

"I am satisfied that counsel's retroactive appointment amounted to an approval of all work done by the Integrity Commissioner during the period when her appointment had expired," Marrocco wrote.

Craig said she was prepared to accept whatever findings the court came to, but said she was confident that she had acted according to the powers of her office.

"I believe that I followed the rules set out in the Municipal Act and the bylaws of the city of Vaughan in my actions as an investigator," she said. "I felt that I had conducted myself appropriately, especially against the claims that I had not afforded [Di Biase] procedural fairness."

She was also heartened by the judges' assertion that an integrity commissioner has the authority to reformulate a complaint after it's brought forward because a complainant may have been unaware of the proper process, or an element may in the end not fall under the office's jurisdiction.

Craig opted not to investigate the allegation that Maystar was helping build Di Biase's family cottage, saying that it could be a criminal matter and was up to police to probe.

"I did my job," Craig said. "And I'm happy to know that people felt strongly enough about the process and the office and said, 'we believe in this process so now over to you.'"