The City of Toronto’s audit committee may not be launching a lawsuit against Mayor Rob Ford for contravening municipal election rules, but Law Times has learned the city’s legal counsel has already spent nearly 200 hours dealing with the case.
According to documents obtained through freedom of information laws, the city’s legal office spent a total of 171 hours, as of the end of December, on the case brought to the committee’s attention by Toronto residents Adam Chaleff-Freudenthaler and Max Reed.
At the time Law Times received the information, the city’s legal staff had attended six court dates. “No legal bills have been prepared on this matter,” the city said, adding it had not retained outside legal counsel.
On Feb. 25, the city’s compliance audit committee decided not to proceed with charges against the mayor after an independent forensic audit report that looked into his campaign finances said it found dozens of “apparent contraventions” of the Municipal Elections Act.
The report, prepared by Froese Forensic Partners Ltd., found the mayor “exceeded the authorized [campaign expense] limit by $40,168.” Ford had a campaign expense limitation of $1.3 million.
Some of the other alleged infractions included unpaid interest in loans the mayor received from his family’s company, Doug Ford Holdings, and receiving donations from corporations.
Another one of the troubles with the audit was a finding that Ford had several pre-campaign fundraisers, one of them hosted by McCarthy Tétrault LLP. The concern was that those fundraisers could have given the mayor a jumpstart on the election campaign. There were also cash donations converted to money orders and personal legal expenses claimed as campaign-related spending, according to the report.
Ford’s counsel Tom Barlow downplayed the breaches, calling them inadvertent and minor technical infractions.
But the squabble over his campaign spending is only the latest in a series of legal fireballs the mayor has had to dodge recently. He successfully defended himself over allegations of defamation after a Toronto restaurateur took him to court over badmouthing him in a newspaper article. Brian Schiller, counsel for the restaurateur in that case, says he’s spent a “couple hundred” hours prosecuting the mayor.
The case is being appealed.
And in his most dramatic court battle, Ford came dangerously close to being removed from office when the Divisional Court found him guilty of conflict of interest.
Ford shouldn’t have spoken up ahead of a vote on whether or not he should repay $3,150 in donations for his football club he received from lobbyists, the court said.
Removal from office is the sole remedy in the Municipal Conflict of Interest Act for a mayor found in a conflict of interest.
But Ford, who promised he would do anything necessary to clear his name, took his case to the Divisional Court, which in January declared him not guilty of conflict of interest because the council vote on the issue itself was improper.
It’s true the mayor is disposed to legal troubles, says Leo Longo, a municipal lawyer with Aird & Berlis LLP. And it has to do with “the carelessness that he approaches some of his obligations with, that a candidate and a politician should follow,” he adds.
“This mayor is prone to being perceived as making gaffes,” he says. “I think this mayor is somewhat polarizing, and as a result some people are less willing to be patient and cut him some slack.”
In the mayor’s defence, the election rules he was most recently accused of breaching “are extremely complex,” says Mary Flynn-Guglietti, a municipal lawyer with McMillan LLP.
“It’s been modified a number of times over the years. So I think there was some sympathy for anybody who’s willing to deal with the legislation,” she says about the election rules.
“It’s hard enough to keep track of all the rules you have to [follow] while running a campaign and then trying to keep track of the people that are giving you money to you, who else have they given money to, and are they over their [donation] caps,” adds Flynn-Guglietti.
For Longo, who says he’s “somewhat surprised” the compliance audit committee didn’t go ahead with a legal proceeding, the trouble has to do more with the fact that the committee didn’t release a written decision outlining its reasons.
“I found the whole process to be unsatisfactory,” he says. “There is no guidance on what tipped the scale one way or the other.”
All of the mayor’s legal issues have been different in nature, says Flynn-Guglietti, which perhaps convinces people tasked with deciding his fate that he is not intentionally breaking the rules.
But intention has little to do with the way Longo sees things.
“Rules are in place for a reason and if they’re broken, consequences should follow,” he says. “Because it is the mayor of the largest city in Canada, and somebody who gets elected by more people than any [mayor] in the country, certainly highlights the importance of following the rules.”
Flynn-Guglietti says making “colourful” remarks is the mayor’s personality, something she says gets him in hot water too often.
“He’s a lightning rod,” she says. “His approach to a problem is in a very vocal way. There’s no question that you either like him or you hate him.”
In many cases, “he probably came close to the line, but he didn’t cross it,” she adds, and “that again comes back to his personality.”
As with the campaign spending lawsuit, a private citizen, Paul Magder, with lawyer Clayton Ruby on his side, spearheaded the conflict of interest matter against Ford. After the appeal court’s decision to spare Ford from losing his job, Ruby said Ford “got off on technicality,” a description Longo says he “fairly much so” agrees with.
Ford is now seeking $116,000 in costs from Magder. Ruby has said he would take the case to the Supreme Court, although there’s no word yet on seeking a leave to appeal.
It’s rare that Canadian mayors find themselves at the centre of a case before the country’s top court. But if Magder seeks leave and the Supreme Court grants it, it will not be the first time a mayor battled a conflict of interest charge at the highest level of jurisdiction.
In 1979, the Supreme Court set aside an appeal court’s decision that Gary D. Wheeler, then-mayor of Moncton, N.B., acted appropriately when the city entered contracts with companies of which he was a shareholder. Wheeler was ordered out of office.
Earlier in 1934, then-Montreal alderman Arthur Angrignon appealed his conflict of interest conviction to the Supreme Court after a lower court found he should not have recommended his three-storey property for a police substation.
Ford’s court battles are drawing attention to conflict of interest and municipal election financing laws, something that can be instructive for other politicians, says Longo.
“And of course the more you talk about these things and expose them, hopefully you’re raising everybody’s understandings about these laws,” he says.
For more, see "Ford matter hears diverging views on conflicts of interest."