Province to consider changes to conflict of interest law

Sharp criticism in the wake of cases involving Rob Ford and Hazel McCallion prompts Ontario to review the Municipal Conflict of Interest Act.

Thestar.com
Nov. 6, 2014
By San Grewal

Following elections dominated by scandals in cities such as Brampton, Toronto and London, the province’s conflict of interest law could finally get its first significant update in almost 40 years.

The provincial government has confirmed that it is looking at changing the law.

Last year, a Divisional Court judge overturned a lower court ruling that would have turfed Toronto Mayor Rob Ford from office under the Municipal Conflict of Interest Act, after Ford took part in a vote on whether he should have to pay back $3,150 in donations he improperly solicited for his football charity.

In 2013, a judge also dismissed conflict charges under the Act against Mississauga Mayor Hazel McCallion, after she voted on a decision that could have saved her son’s development company as much as $11 million in development charges.

In both cases, the law was heavily criticized: In Ford’s case for being too black or white, because the only punishment under the MCIA for knowingly breaking the law is removal from office, regardless of how minor the conflict. And in McCallion’s case, because the law demands that a private citizen must bear the burden of bringing a case before the courts, which can cost hundreds of thousands of dollars.

It also came under strong scrutiny in 2011, when Justice Douglas Cunningham released his report on a judicial inquiry into McCallion’s behind-the-scenes lobbying for a failed $1.6-billion development by her son’s company. He cleared her largely because of the narrow scope of the Act, but called for sweeping changes to laws that govern municipal politicians, including the MCIA. His recommendations were ignored at the time.

“The Ministry is reviewing the Municipal Conflict of Interest Act, and is considering Justice Cunningham’s recommendations,” said Mark Cripps, a spokesperson for the Ministry of Municipal Affairs and Housing.

The news will come as a welcome surprise to many who work in the field of municipal governance.

“There seems to be a huge gaping hole in the MCIA,” lawyer John Mascarin, who specializes in municipal government conflicts, said Thursday, shortly before the ministry told the Star about its review of the Act. Mascarin said the Act is often presented in cases as a “complete code”.

“Justice Cunningham found the complete opposite. It’s not a complete code.” Mascarin used McCallion’s case as an example.

The existing Act, Cunningham pointed out, can let a politician off the hook even if she is in a clear conflict in her behaviour outside city hall, as long as she declares a conflict when council deals with the issue.

Cunningham found McCallion broke “common law principles” for her aggressive backroom lobbying on behalf of her son’s company, but because he had to follow the letter of the Act, she was cleared because she declared a conflict when the development came before city council.

Ontario Ombudsman Andre Marin called the lack of action till now sad. He said Cunningham’s work was “collecting dust” instead of being acted on.

Marin is awaiting the passage of Bill 8, which would give him new powers to deal with complaints against municipal politicians.

The ministry’s announcement comes after several cities across Ontario have been rocked by scandals involving elected officials.

“Now would be the perfect time (to adopt Cunningham’s recommendations), especially having seen what’s happened with a lot of these councils over the last four years,” Mascarin said.