RICHARD LAUTENS/TORONTO STAR Toronto Mayor Rob Ford, seen outside the Osgoode Hall courthouse on Jan 7, is fighting for his political life as he tries to persuade a Divisional Court panel to overturn the decision that forced him from office over a violation of provincial conflict-of-interest law.
Mayor Rob Ford was portrayed in court Monday as both a stubborn lawbreaker who “knows nothing” and an honest and principled do-gooder whose mistake was understandable, if it was a mistake at all.
Whether Ford keeps or loses his job could depend on how charitably a three-judge Divisional Court appeals panel views the council vote over which another judge kicked him out of office in November. His fate could also rest on whether the judges believe the council debate should have occurred in the first place.
The senior judge on the panel, Regional Senior Justice Edward Then, promised a “prompt” decision. A Ford loss would make Deputy Mayor Doug Holyday the interim mayor and force council to call a $ 7-million-plus byelection or vote on an appointed replacement.
Though Monday’s hearing was most colourful when Then and the dueling lawyers parsed Ford’s words and behaviour, they spent the bulk of their time discussing the drier, but possibly pivotal, issue of municipal jurisdiction. Specifically: Did council have the right to order Ford to reimburse lobbyists and a corporation from whom he had improperly accepted donations to his football foundation?
The judge who presided over the original case, Superior Court Justice Charles Hackland, ruled that Ford violated the Municipal Conflict of Interest Act with his February 2012 vote to excuse himself from a 2010 council order to pay back $ 3,150 to the 11 lobbyists and one company. Ford also gave an impassioned speech before the vote.
The law forbids politicians from speaking and voting on “any matter” in which they have a financial interest. But Ford’s lawyer, Alan Lenczner, told the panel Monday that Ford’s speech and vote were null and void because the 2010 order was illegal.
The provincial City of Toronto Act, Lenczner noted, lists only two possible penalties for code of conduct violations: a reprimand or a suspension of pay. There is no mention of reimbursement.
“Penalty A: Reprimand. Penalty B: Suspension. And nothing else,” Lenczner said.
Ford was sued by resident Paul Magder, who was steered to the case by a left-leaning activist Adam Chaleff-Freudenthaler. Magder’s lawyers, Clayton Ruby and Nader Hasan, argued that the courts have granted municipalities broad authority to effectively govern their affairs — through such tools as a Code of Conduct with a robust range of possible sanctions for integrity violations.
“The modern approach presumes that municipal bylaws are validly enacted, absent clear demonstration that the bylaw was beyond the municipality’s powers,” Hasan said. With only a reprimand or a suspension of pay as legal penalties, he said, council is left to choose between “a slap on the wrist or a sledgehammer.”
Hasan added that Hackland’s ruling should be upheld even if the order is now ruled invalid, because it was presumed to be valid at the time of Ford’s vote. If Ford thought the order invalid, Ruby said, he should have exercised his right to seek a judicial review — rather than make a “collateral attack” in a separate conflict of interest case two years later.
For Ford to win the appeal, the panel must decide that Hackland made a significant error in his application of the law. Ford, who testified before Hackland, did not have an opportunity to speak in court on Monday, and he refused to answer questions on the case afterward during a brief media scrum outside the courthouse.
Two of the judges, Justice Lynne Leitch and Justice Katherine Swinton, were quiet save for brief questions. Justice Then, however, made several comments — some of which sounded critical of Ford, some of which sounded favourable.
Then suggested that Ford was far more cooperative with the city’s integrity commissioner than Ruby argued. But when Lenczner attempted to discuss why Ford had never attended a councillor orientation where conflict of interest law would have been explained to him, Then retorted that Ford had also never read the official council handbook.
The panel could let Ford off the hook if the judges find Hackland was wrong to reject his contention that he had made a good-faith “error in judgment.” Hackland was forceful on this point, writing that Ford’s actions were “characterized by ignorance of the law and a lack of diligence in securing professional advice.”
But at the end of the hearing, he told Lenczner that he was not convinced Hackland had erred in his dismissal of the error-in-judgment defence.
“There has to be a palpable and overriding error, and I’m not sure it’s been identified,” Then said.
Lenczner concluded with a sharp attack on Hackland’s ruling, saying the judge had shown “not one whit of regard” for Ford. Earlier, he called Ford an “honest man” who tried to hide nothing about the contested vote.