Conflict of interest cases rarely result in punishment for politicians

YorkRegion.com
Nov. 20, 2014
By Simon Martin

The buzz term in Ontario municipal politics in recent years has been conflict of interest.

Toronto’s Rob Ford, Hazel McCallion of Mississauga, Aurora’s Phyllis Morris and Dave Barrow of Richmond are just a few of the mayors who have been dragged into court. These four were exonerated, but not without several critiques levelled at the Municipal Conflict of Interest Act.

These issues are not new. Before conflict of interest cases were the soup du jour, East Gwillimbury went through a very similar case in 1998: Jafine v. Mortson. In the end, the late Jim Mortson was found by the courts to have made an honest error in judgment and was not sanctioned.

What conflicts of interest might you have that could prevent you from representing the town at the region? This was a question posed to East Gwillimbury mayoral candidates Cathy Morton and Virginia Hackson at the all-candidates meeting hosted by Mount Albert Village Association last month.

On the surface, it looked liked an inquiry pointed directly at Hackson.

The region’s biggest project in East Gwillimbury is on 2nd Concession - the road on which Hackson lives.

“There’s no secret I live on 2nd Concession. I have lived there for 33 years,” Hackson said at the time. Approvals for various parts of the project went through before Hackson became the regional representative for the town in 2010.

What many East Gwillimbury residents may not know is the question also reminded candidates of allegations of conflict of interest that arose 16 years ago. That case involved then-mayor Mortson, who died earlier this year, but is referred to in conflict of interest cases to this day.

Mortson owned a farm close to the proposed Hwy. 404 extension and he participated in two votes that supported the route of the highway extension, which had a possibility of boosting the value of his property, without declaring a conflict of interest.

That didn’t sit right with Maxine Jafine, now Maxine Widmeyer and one of a couple of residents who regularly attend council.

“I just think when people do wrong things they should be brought to task,” Widmeyer said.

She went to court and won... sort of.

In the case, Judge Robert MacKinnon ruled that Mortson had an interest that was immediate, particular and distinct from the public interest. While Mortson was deemed to have pecuniary interest, MacKinnon said in his ruling, “I am of the view that Mayor Mortson’s conduct was unwise and mistaken, but, nevertheless, undertaken in good faith and an entirely understandable error in judgment.”

No sanctions were administered and Jafine had to pay her legal fees.

“Twenty thousand dollars is not chump change,” she said

MacKinnon’s ruling highlights a problem that has continually come up in conflict of interest cases, lawyer Gavin Tighe, who represented Jafine, said. Under the Municipal Act, if a council member is found guilty, he or she is booted from office.

“The remedy is so extreme, judges are reluctant to dole it out. There should be more discretion,” he said.

If there is anyone who is an authority on conflict of interest cases, it’s Tighe, who has quite famously represented Ford in recent years. The lawyer for Gardiner Roberts LLP said the average person isn’t going to spend their hard earned money on a case. The people who generally bring conflict of interest cases forward are wealthy, have wealthy backers or are special interest groups. It’s quite a heavy burden for a resident to bear.

“It’s all or nothing,” he said.

Tighe remembers the Jafine v. Mortson case well. The case showed pecuniary interest covers more than just money and has been raised as an example in several cases since then, he said. There wasn’t much debate for Tighe: Mortson had a conflict as some of his land was to be expropriated by the province.

Tighe isn’t the only one who has pointed out flaws in the Municipal Conflict of Interest Act (MCIA). Toronto lawyer John Mascarin of Aird & Berlis said it would help if judges had a greater range of penalties.

“Judges bend over backwards not to remove people from office,” he said.

The province is looking into changing the act, Mascarin said. He noted Justice Douglas Cunningham’s 2011 report on former Mississauga Mayor Hazel McCallion’s lobbying efforts for her son’s company. In his decision, Cunningham cleared McCallion, but called for several changes to the MCIA.

Up until this month, the province hasn’t mentioned anything about updating the almost 40-year-old law.

In a story that appeared in the Toronto Star Nov. 6, a spokesperson for the Ministry of Municipal Affairs and Housing, said the province was looking into changing the act and incorporating some of Cunningham’s recommendations.

The sooner the better, Mascarin said. With conflict of interest cases cropping up in municipalities all over the GTA, the law is in need of some tweaking.

“The costs are huge especially when the other side defends. It’s a huge onus (on the plaintiff),” Mascarin said. Legal fees can go north of $100,000 in high profile cases, he added.

Widmeyer certainly understands the burden the elector has in the current system. She still doesn’t agree it was right for her to pay her own legal bill. The ruling in the case against Mortson was unfortunate, says Widmeyer, because politicians can use an error of judgment defence to avoid penalty.

“There is no recourse when someone does something wrong,” she said.

Although Widmeyer keeps a keen eye on council proceedings, she has no plans to ever bring another charge under the MCIA - it’s just too hard to win.