Stouffville council, legal experts, weigh in on judge's decision to overturn Mayor Justin Altmann's sanctions

Altmann's lawyer threatens legal action against integrity commissioner

Yorkregion.com
September 26, 2018
Simon Martin

Whitchurch-Stouffville Mayor Justin Altmann is back in his office at town hall.

He can go to the town park and set foot in the new library. He can speak to town staff.

The mayor had been prohibited from doing all of these things after council passed a bylaw March 6 upon recommendation from the town integrity commissioner Suzanne Craig.

Ontario Superior Court Judge Phillip Sutherland ruled on Sept. 7 that portions of that bylaw exceeded council’s authority.

“There is nothing in the (Municipal Act) or the code that authorizes council to impose the sanctions,” Sutherland wrote in his decision. “I cannot reconcile the submission of the Town that the offending terms are 'other actions' that Council have the authority to impose. The offending terms I see nothing but a sanction or penalty against (Altmann).”

Legal experts said the town did not have much of a case in imposing the sanctions.

High-profile lawyer Alan Lenczner was also able to win a case against an integrity commissioner sanction in Toronto, against former mayor Rob Ford, that exceeded the office’s authority.

He said this case was a lot more clear.

“There was no question that the bylaw was beyond the power of the municipal act,” he said. “This is so far outside, it’s not even close. I don’t think the town had much of a leg to stand on.” 

Trevor Farrow, associate dean of Osgoode Hall Law School, said the court got it right in this case. The town overstepped from the options that were available under the statutory guidelines, he said.
Altmann’s lawyer Mauro Marchioni said the process could have been completely avoided.

Before Altmann brought the matter before the courts, Marchioni said they told the town they could not implement the three portions of the bylaw that were struck down.

“Let’s just pull back these three things. No was the answer,” Marchioni said. “It’s not that the town was not made aware of this. The municipal act is clear.”

The reason there are very few integrity commissioner rulings in the courts is because the act is very clear. Stick with what it says and you will be fine, Marchioni said.

Craig, the town’s former integrity commissioner, refused to comment on the judge’s ruling.

Marchioni said he has put Craig on notice that he is going after her for negligence in having advised the town they have the authority to pass certain sanctions.

Marchioni said the legal process involving the integrity commissioner is a complicated one because the town gives the integrity commissioner full indemnity.     

Members of council who had passed the offending bylaw March 6 in a 5-1 vote, with Ward 6 Coun. Rob Hargrave the only one who voted against it, were quick to accept the judge’s ruling.

“We looked at the best legal advice we could get,” Ward 4 Coun. Rick Upton said. “We took her recommendations and we accepted those recommendations.”

Ward 5 Coun. Iain Lovatt said he fully accepts the judge’s ruling and noted that the integrity commissioner findings of harassment were not contested.

“We did what we felt was in the best interests of staff,” he said. “There is an obligation we have to protect staff.” 

Ward 3 Coun. Hugo Kroon said the actions were taken to protect town staff.

“We made a decision. It was a bit of a risky one. We believed we were right. The judge thought otherwise.”

Last September, Craig found Altmann had violated three sections of the town's code of conduct, relating to harassment, discreditable conduct and conduct respecting staff in relation to a mind map on his bathroom wall.

Craig received a complaint about Altmann’s refusal to apologize after her initial integrity recommendations were enacted by council. Altmann’s refusal to make an apology in the 90 days allotted caused Craig to recommend further sanctions. Craig told council Altmann had exhibited contempt for the town’s code of conduct.

Although Lenczner found fault with the integrity commissioner recommendations in this case, he said overall they are a good thing for municipalities to have in place. You have to have an ability for municipal employees to voice their concerns, he said.

“This (decision) is a very good precedent. Every integrity commissioner should read this carefully,” he said. “Ultimately it’s council’s responsibility.”

With integrity commissioners and code of conducts mandated in every municipality in Ontario by March of next year, Farrow said Sutherland’s ruling will be very helpful for town’s drafting their code of conducts in the future.

“Administrative guidelines drafted in a vacuum sometimes leave little room for flexibility,” he said.

In the future, towns may consider more creative problem solving efforts in their codes like mediation. Not to say rules don’t matter but sometimes there needs to be more than a one-size-fits-all solution, he added.

Ward 1 Coun. Ken Ferdinands said he accepts the judge’s ruling but is happy to have the integrity commissioner process in place. “I do believe the system works in the manner it should. It’s all very new to us. I certainly don’t want to see a repeat of what we encountered,” he said.

Modernizing Ontario’s Municipal Legislation Act, also known as Bill 68, was passed by the previous Liberal government in 2017, and requires all municipalities establish codes of conduct for municipal council members and certain local boards by March 1, 2019, as well as give the public and councillors access to the services of an integrity commissioner.

During the bill’s third reading in the legislature, then Municipal Affairs and Housing Minister Bill Mauro said changes to the act would do a number of things to strengthen Ontario communities right across the province.

“They would improve access to justice for both the public and municipal councillors by allowing integrity commissioners to investigate conflict-of-interest issues if a complaint was brought to them,” he said to the Speaker of the House. “They ensure municipalities have a code of conduct for members of municipal councils and certain local boards.”

York University professor Dennis Pilon doubts forcing all of Ontario’s 444 municipalities to have an integrity commissioner and council code of conduct will have the desired effect policy makers envisioned.

“These kinds of approaches don’t always work,” he said. “Often there is an underlying political problem that is at the root of the (conduct) issue. There has to be a political will for these (systemic) changes to work.”

The most prominent issue is council members have final say on what goes into the code of conduct and any recommendations made by the integrity commissioner, he added.

For example, if there isn’t a consensus on a point some councillors believe should be in the code of conduct, it won’t be included and the code of conduct can be changed upon council’s desire.

“There was an integrity commissioner in British Columbia who was too good at his job and was digging up all kinds of information and the council pulled funding for his office,” Pilon said. “It’s not an ideal model.”