Is Ford’s penalty ultra vires?
The first and arguably most important argument is that the original $3,150 that Council ordered Ford to repay was ultra vires: that is, Council didn’t have the legal authority to order Ford to repay the $3,150.
In the City of Toronto Act, section 150 (5) reads:
City council may impose either of the following penalties on a member of council or of a local board (restricted definition) if the Commissioner reports to council that, in his or her opinion, the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. 2006, c. 11, Sched. A, s. 160 (5).
Lenczner argued at court that the language of the Act should be read restrictively: that is, the Act authorizes these punishments and no others. Council didn’t have the authority to require Ford to pay back $3,150 in donations from lobbyists, says Lenczner, so Ford voting to undo council’s authority can’t breach the Municipal Conflict of Interest Act.
This argument poses two problems. The first is that Ford had 18 months between the original decision to impose the $3,150 penalty and the February 2012 vote that landed him in so much trouble. At no point during those 18 months did he seek any kind of lawsuit against the city to undo its (he now argues) illegal decision. Justice Hackland might have simply dismissed the argument by saying that since Ford didn’t seek recourse through the courts, the argument that the penalty is ultra vires is irrelevant.
Hackland took the more difficult route, which is why this may be the weakest (note: still not very weak) part of his decision. Hackland decided that Canadian jursiprudence does, in fact, empower Council to impose penalties outside of the narrow text of the Act. This has led some armchair City watchers to croon triumphantly that we all owe Rob Ford an apology because the decision is so obviously wrong. I don’t think that’s true, because we’ve seen other recent decisions where the courts have given very broad leeway to municipal powers, even in seeming defiance of the text of the law.
One recent example is the City’s victory in the so-called Billboard Tax case. The City of Toronto Act would seem, on its face, to make a billboard tax illegal for the vast majority of billboards that were constructed before the law was passed. From S. 110 (1):
A City by-law respecting advertising devices, including signs, does not apply to an advertising device that was lawfully erected or displayed on the day the by-law comes into force…
But the Ontario Court of Appeals decided that the City’s Third-Party Sign Tax was in fact legal, for reasons you can read in the decision. Importantly, while the Court of Appeals found there were a number of reasons to interpret S. 110 (1) other than how the advertising industry wanted, the decision also includes this:
I also agree with the submission that the powers conferred by the City of Toronto Act should be read in a generous fashion so as to enable the City to meet the needs of its residents and to provide them with good government. [emphasis added]
Since the Supreme Court declined to hear the Billboard Tax case, we can say that it’s settled law. It’s important to note here that’s it’s not direct precedent and Hackland doesn’t cite it. But that’s kind of my point: Hackland didn’t invent the broad, permissive powers of municipalities in his decision. They’re everywhere in municipal case law, sometimes even in cases where they seem to contradict the stated text of law.
For more sure-footed legal arguments, we can look at a case Hackland did cite: Nanaimo (City) v. Rascal Trucking, in which the Supreme Court of Canada ruled:
In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.
Considering the amount of text in the City of Toronto Act given over to accountability and offices to ensure accountability—remember, the Act was passed in the aftermath of the MFP scandal and the Bellamy Inquiry—it seems difficult to argue that the City’s power to enforce its Code of Conduct should be read as narrowly as Ford needs it to be, if he’s going to prevail. If Lenczner’s ultra vires argument succeeds, council could not even compel an apology from someone who violated the code of conduct, or even remove them from their committee chair.
The ruling also mentions Rizzo & Rizzo Shoes, where the court cited:
…a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.
Since it would seem to be an “absurdity” to argue that council can dock a member 90 days pay but not compel an apology, it’s certainly not obvious that Hackland’s decision will be overturned on this count.
