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Respondent's Factum 2

Respondent's Factum 2

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Published by Torontoist

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Published by: Torontoist on Aug 30, 2012
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12/09/2013

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·2.1.1.1
.
,
Court File No. CV-12-448487
ONTARIO
SUPERIOR COURT
OF
JUSTICE
BETWEEN:
PAULMAGDER
andROBERT FORD
FACTUM
OF THE
RESPONDENTROBERTFORD(MOTIONS
RETURNABLE
AUGUST
24, 2012 AND
APPLICATION
RETURNABLE
SEPTEMBER
5, 6, 7, 2012)August 16, 2012
LENCZNERSLAGHTROYCE
TO:
SMITH
GRIFFIN
LLP
BarristersSuite 2600130 Adelaide Street WestToronto ON M5H
3P5
Alan
J.
Lenczner, Q.C. (l1387E)
Tel: (416) 865-3090Fax: (416) 865-2844
Email:
alenczner@litigate.com
Andrew Parley (55635P)
Tel: (416) 865-3093Fax: (416) 865-2873
Email:
aparley@litigate.com
Lawyers for the RespondentRUBY
SHILLER
CHAN
LLP
Barristers
11
Prince Arthur AvenueToronto, ON M5R 1B2Clayton RubyNader R. HasanTel: (416) 964-9664Fax: (416) 964-8305Lawyers for the ApplicantApplicantRespondent
 
Court File No. CV-12-448487
BETWEEN:
ONTARIO
SUPERIOR COURT OF JUSTICE
PAULMAGDERandROBERT FORD
FACTUM OF THE RESPONDENT
ROBERT FORD
PART I -INTRODUCTION
ApplicantRespondent
1.
The relief requested by the applicant in his motions is neither relevant nor necessary for thedetermination
of
the single issue in the Application.
2.
The single issue is whether, by voting in favour
of
a Resolution
of
City Council onFebruary
7,
2012, the respondent contravened the
Municipal Conflict
of
nterest
Act
("MCIA").
3.
The Resolution, which passed by a vote
of
22-12 was to rescind a previous Resolution
of
City Council
of
August 25,2010.
4.
The single issue fundamentally involves questions
of
law:
Do
the provisions
of
the
MCIA
apply to a Code
of
Conduct violation? Did City Council under its statute, the
City a/Toronto Act,2006 ("COTA"),
have the authority to require the respondent to pay $3,150
to
charitable donors.
 
2
5.
As a consequence
of
the timing
of
he applicant's motions and the schedule for the delivery
of
Facta, the respondent hereby provides its Factum on the Application, which also serves
as
context for the motions and his responses to the motions.
6.
The respondent submits four responses to this Honourable Court, each
of
which justifiesthe dismissal
of
the Application:(a) the
ultra vires
appIication
of
the
MCIA
provisions to a breach
of
the Code
of
Conduct. The Code
of
Conduct is a distinct and separate statutory regime whichprovides specific penalties for any breach;(b) the
ultra vires
City
of
Toronto Resolution requiring the respondent to pay $3,150 todonors who had contributed to a charitable foundation;(c) in the alternative, error
of
judgment; or(d)
III
the further alternative, insignificant amount that does not influence therespondent's actions.
PART II -SUMMARY OF FACTS
7.
The Integrity Commissioner, who
is
mandated by the
City
a/Toronto
Act
to investigatealleged Code
of
Conduct violations, determined the respondent had breached the provisions
of
theCode in that he used his councillor letterhead to solicit funds for his charitable foundation.
8.
It
is
important to bear in mind in determining this application that the breach was not thesolicitation
of
funds for charitable purposes but the use
of
councillor letterhead to
do
so.

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