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Magder v. Ford, factum of respondent

Magder v. Ford, factum of respondent

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Published by Omar Ha-Redeye
Factum filed by the respondent in the conflicts of interest case against Rob Ford.
Factum filed by the respondent in the conflicts of interest case against Rob Ford.

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Published by: Omar Ha-Redeye on Dec 27, 2012
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08/11/2013

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88. Given the Appellant‘s experience on City Council, he ought to have had in place a

procedure to identify conflicts of interest. But he confirmed that his office had no protocol or

procedures whatsoever to identify or to advise him of conflicts of interest. He had never sought

legal advice on such issues:

A. No, a few times I've been involved with the Integrity Commissioner.

Q. A few. Did you ever seek advice from her about conflicts of interest?

A. No.

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Q. What steps, if any, did you ever take to find out where you could get free advice on
conflicts of interest or conflict of interest issues arising from the Municipal Conflict of
Interest Act or the member's Code of Conduct?

A. I did not.

[…]

Q. Right. You had no procedure in your office for identifying conflicts?

A. No, I don't have a lawyer on staff.

Q. And none of your staff was specifically tasked with the job of watching for conflicts
knowing what your full financial interests were?

A. No, they watch for money most importantly, it's up to myself to declare a conflict for
myself.

Cross-examination of Robert Ford, September 5, 2012, pp. 59:15-61:26; 77:20-77:31, RC, Tab 1B, 1D, p. 8-
10, 18

Cross-examination of Robert Ford, June 28, 2012, pp. 30:13-31:17, RC, Tab 2C, pp. 78-79

89. It was reckless for the Appellant not to have a policy in place to identify potential

conflicts. Instead, the Appellant claims that he relies exclusively on the City Clerk and City

Solicitor sua sponte to identify conflicts of interest for him.

Affidavit of Robert Ford, June 5, 2012 at para. 24, EB, Tab 3, p. 106

Cross-examination of Robert Ford, June 28, 2012 at p. 16:19-16:25; p. 23:12-23:22; p. 29:10-29:25, p. 32:4-
32:10, p. 136:16-136:23, RC, Tabs 2B, 2C, 2F, pp. 67, 71, 77, 80, 100(stating that ―Legal staff usually tells
you if you have a conflict or not,‖ and that it is ―up to … legal staff‖ to identify conflicts of interest).

90. Such measures are woefully deficient, for it would require the City Clerk or City Solicitor

(whose client is the City and not individual Councillors) to be intimately familiar with the

personal and business affairs of each councillor. This is an unrealistic and unbelievable

expectation. Further, and as Hackland R.S.J. noted, the Appellant himself conceded that it is not

the responsibility of the City Clerk or City Solicitor to identify conflicts for individual

Councillors:

Q. Now your lawyer put to you and you'll agree that the City Clerk and the City Solicitor
have no obligation in law to give you advice on conflicts or anything else, correct?

29

A. No, they're not obligated to.

Q. Not part of their job description?

A. I don't know what they're job description is.

Cross-examination of Robert Ford, September 5, 2012, p. 68:16-68:32, RC, Tab 1C, p. 16

Reasons for Decision at para. 55, AB&C, Tab 3, p. 29

91. This is not to say that the advice of the City Solicitor would be irrelevant to the inquiry.

Indeed, there are cases in which advice from the City Solicitor or a lawyer was a key factor in

determining whether the Councillor‘s contravention of the MCIA was a bona fide error in

judgment.

Re Edwards and Wilson, [1980] O.J. No. 3873 at para. 35 (High Crt. J., Div. Crt.), RA, Tab 28 (where a
respondent seeks a legal opinion and relies on it, this is a factor that courts will consider in determining
whether the error of judgment was made in good faith)

Sheehan v. Hart, supra at paras. 14-20 (Gen. Div.), RA, Tab 15 (where Councillor had relied on opinion
from City Solicitor)

But see Re Blake and Watts (1973), 2 O.R. (2d) 43 at 8-9 (Co. Crt), AA, Tab 8 (holding that the respondent‘s
reliance on a legal opinion that there was no conflict was not sufficient to show error in judgment)

92. However, in cases where courts have considered legal advice given by the City Solicitor

or other counsel, it was incumbent on the Councillor to seek out and obtain advice once the

Councillor himself or herself identified that he had a potential conflict of interest. The Appellant

failed to do that here. The Appellant concedes that he has no recollection of seeking legal advice

— or any advice — in relation to either the August 25, 2010 or the February 7, 2012 Council

meetings.

Cross-examination of Robert Ford, June 28, 2012 at pp. 32:20-34:17; p. 35:10-35:23; p. 36:24-38:20, p.
88:17-88:23, RC, Tabs 2C, 2D, pp. 80-84, 88

93. In Begin v. McInnis, Justice Hogg held that a failure to seek a legal opinion may amount to

willful blindness and therefore would not constitute a bona fide error in judgment. Having found

a contravention of the Act, Justice Hogg rejected the respondent‘s defences and held:

I find that the explanation given in and of itself as to bona fides is so untenable that I reject
it. At the very least, the respondent in not seeking legal advice was deliberately and

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wilfully blind. It would be difficult to conceive of a solicitor who, having learned of the
facts, would not have advised the respondent that he was in a conflict of interest.

Begin v. McInnis, [1991] O.J. No. 499 at 4 (Gen. Div.), RA, Tab 29

D. The Appellant Ignored Cautions About His Conflict of Interest

94. Prior to February 7, 2012, the Appellant had previously deliberately disregarded the Act.

During an August 25, 2010 meeting, Council considered the Integrity Commissioner‘s finding

that the Appellant had violated the Code of Conduct, and ordered him to reimburse the $3,150.00

in donations he improperly solicited for his Football Foundation. At that meeting, then-Speaker

Sandra Bussin warned the Appellant that he had a conflict of interest in the matter. In her

affidavit, Ms. Bussin states:

Because the matter involved Councillor Ford‘s conduct and made him personally liable
for $3,150.00, it was my opinion that Councillor Ford had a direct and personal interest in
Item CC52.1 which amounted to a conflict of interest that prohibited him from speaking
on or voting on the motion.

As a Councillor bound by the City‘s Code of Conduct, it was Councillor Ford‘s
responsibility to declare that he had a conflict of interest because of his pecuniary interest
in the motion. Nevertheless, as Speaker, when I realized that Councillor Ford intended to
vote on the motion, I alerted him directly to his conflict of interest. I said to him in a clear
voice:

―Councillor Ford. This matter deals with an issue regarding your conduct. Do you intend
to declare a conflict? You are voting? Okay.‖

I have attached a transcript of the exchange to this affidavit as Exhibit ―A‖.

I alerted Councillor Ford to his conflict of interest in the hope and expectation that he
would declare his conflict and not vote on the motion. Having ignored my warning, there
was nothing more that I could do.

Councillor Ford did not seem surprised when I told him that he had a conflict of interest.
Instead, he just nodded to me, indicating that he understood what I had said but that he
was voting on the item. He then proceeded to do so.

Affidavit of Sandra Bussin at paras. 7-10, May 8, 2012, EB, Tab 5, pp. 377-378

31

95. The Appellant conceded this interaction under cross-examination. He claimed that he was

justified in ignoring the Speaker because of the possibility that she was motivated by political

considerations:

…another councillor coming up, sometimes it‘s political. Sometimes they don‘t want you
to vote against it, so they‘ll make up a story or do whatever, and say, ―you have got a
conflict or…‖

There is a lot of politics that get played down there. So no, I wouldn‘t listen to another

councillor to tell me if I have a conflict or not.

Cross-examination of Robert Ford, June 28, 2012 at p. 86:19-87:14,RC, Tab 2D, pp. 94-95; Cross-
examination of Robert Ford, September 5, 2012, p. 109:19-109:29, Tab 1E, p. 37

96. Hackland R.S.J. found that the Appellant ―was well aware that he may have been in a

conflict situation because Speaker Bussin had specifically warned him he was in a conflict when

he voted on a motion concerning these same issues … when the matter came before Council on

August 25, 2010.‖

Reasons for Decision at para. 55, AB&C, Tab 3, p. 29

97. At best, this is wilful blindness; at worst, it is outright intransigence. Either way, it is not

an error in judgment.

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