Di Biase's bid for judicial review could be heard in the spring
Vaughan Deputy Mayor seeking to quash integrity commissioner's report, overturn council penalty

YorkRegion.com
Dec. 12, 2015
Adam Martin-Robbins  

Vaughan Deputy Mayor Michael Di Biase’s bid to quash a scathing report by the city’s ethics czar and overturn the penalty imposed by his council colleagues could be before the courts next spring.

Morris Manning, Di Biase’s lawyer, filed a factum with the Divisional Court Monday outlining reasons for seeking a judicial review of City Integrity Commissioner Suzanne Craig’s findings in April that Di Biase breached the code of conduct for councillors and of council’s unanimous decision to dock his pay for 90 days, the harshest penalty available under the Municipal Act.

Di Biase couldn’t be reached for comment, but Manning said he’s confident that there’s a solid case for quashing the integrity commissioner’s report and overturning the pay suspension.

“I wouldn’t be bringing it before the court (otherwise),” he said.

Craig, meanwhile, is optimistic her findings and the penalty imposed by council will be upheld.

“I believe what we witnessed in April was the accountability and transparency section of the Municipal Act in action,” she said. “I believe that individuals were courageous in coming forward. I believe that the council of the City of Vaughan was courageous in receiving my recommendations. And I have the utmost faith in the judicial system to ensure that the intent and the spirit of the Amendment to the Municipal Act (which created accountability and transparency measures such as the code of conduct) will be effectively played out in the outcome of this judicial review.”

Craig said, based on how similar matters have been dealt with in the past, it will likely be before the courts in the spring. 

Many of the arguments laid out in the factum are similar to those Manning made to city council back in April when Craig tabled findings of a probe that concluded the veteran politician had interfered in the city’s tendering process to secure projects for a local contracting company and intimidated staff who pushed back.

In the factum, Manning alleges Di Biase was not given “a real opportunity” respond to the integrity commissioner’s findings.

The factum states that Di Biase was denied a request to know the identity of the people who made accusations against him and was not provided with their statements or documents they provided to the integrity commissioner during her probe.   

During her investigation, Craig spoke to more than 30 staff members who expressed concern about Di Biase’s conduct. Their names were kept secret, for fear of reprisals, she noted in her report.

 “The failure to provide proper disclosure tainted the investigation by the (Integrity) Commissioner and the matter before Council from the outset,” the factum states. “It denied the Applicant (Di Biase) his right to a fair process. The failure to comply with the obligation of procedural fairness is sufficient to set aside the decision of Council and the Report and Recommendations of the (Integrity) Commissioner.”

The factum also argues that because Craig’s appointment as integrity commissioner ended April 5, five days before her initial findings were posted online for the public and nine days before they were formally presented to councillors, her actions following that date “were taken in her personal capacity and not as Commissioner.”

And, Manning argues, council’s decision to re-appoint her on April 13 and make that appointment retroactive to April 5 was illegitimate.

“The legislative authority granting to the City the power to appoint an Integrity Commissioner nowhere gives the City the power to retroactively appoint a Commissioner, let alone take steps to attempt to grant retroactive approval for any acts done at a time when the Commissioner’s appointment had ended,” the factum states.

As well, the factum states, that the integrity commissioner’s investigation, in part, relied on email that was allegedly illegally obtained.

Back in April, Craig released the findings of a four-month investigation triggered by a complaint from Richard Lorello, a city hall watcher and Di Biase’s long-time political rival.

In her report, Craig found that Di Biase, a long-time regional councillor and former mayor, used intimidation and abusive language to pressure city staff who opposed his efforts to secure municipal projects for Maystar General Contractors, the firm that built Vaughan city hall.

Craig didn’t investigate Maystar and there’s nothing in her reports to indicate the company did anything wrong.

A short time later, York Regional Police launched a probe into city contracts signed during Di Biase’s 24 years in office, including his time in the mayor’s chair from 2002 to 2006 and, more recently, while a local and regional councillor.

That investigation was handed over to the OPP to avoid a potential conflict as Di Biase sits at regional council, which oversees York Police.

An OPP spokesperson has confirmed that the investigation is ongoing, but declined to comment further.