Toronto Mayor, Rob Ford kept his job this month as a result of
the Divisional Court's reversal of a decision which had found
him in breach of the Municipal Conflict of Interest
In Magder v. Ford, the Divisional Court held that even
though Mayor Ford had voted on a matter which involved a personal
pecuniary interest, the vote did not matter since the underlying
by-law which gave rise to the pecuniary interest was a nullity.
Rather than being a decision based on a technicality as argued by
Mr. Magder's lawyers, the decision of the Divisional Court was
based on a sound legal finding.
The by-law at issue was passed by Toronto's City Council in
August 2010 in response to a report from the City's Integrity
Commissioner which had determined that then Councillor Rob Ford had
improperly used his position and public resources to solicit
donations to a charitible football foundation administered at an
arm's length to Mr. Ford. Although Mr. Ford did not receive any
money personally, the City's Integrity Commissioner recommended
that City Council require him to pay back over $3,000 in donations.
This recommendation was made under the City's Code of Conduct
for Members of Council which permitted a sanction requiring a
member to pay money he or she received as a result of a breach of
the Code. This recommendation was confirmed by a resolution of City
As correctly determined by the Divisional Court, the
recommendation and subsequent resolution were flawed. Since Mr.
Ford never received the money, there was no jurisdiction in the
City of Toronto to order him to pay back any money for his breach
of the Code. The resolution passed by City Council was ultra
The doctrine of ultra vires protects against the misuse
of power by a municipal government. Unlike provincial and federal
governments, municipal governments are creatures of statute. They
derive their authority by statute and therefore do not have the
status of natural persons or the Crown. Accordingly, municipalities
must act within their strict powers when enacting resolutions or
While municipal law recognizes a great deal of flexibility in
the jurisdiction possessed by city governments, the Divisional
Court rightly recognized that such authority cannot be used in a
This is logical. Otherwise elected politicians could easily
abuse their power and pass by-laws which blatantly support
"friends" of the majority of council, and correspondingly
This is essentially what the Divisional Court found when it
stated that the by-law requiring Mr. Ford to pay back money he had
not received was punitive.
With respect to the remainder of the decision, the Divisional
Court also accurately analyzed the interpretation to be given to
various sections of the Municipal Conflict of Interest
Act. However, missing from the analysis was any discussion
about the substantive rights of voters who would be disenfranchised
by the removal of Mayor Ford from office.
At the time of writing, lawyers for Mr. Magder have indicated
that they will be seeking leave to appeal the ruling of the
Divisional Court to the Supreme Court of Canada. This may present
some difficulties, however, since the Municipal Conflict of
Interest Act clearly contemplates that the decision of the
Divisional Court is final. This too makes sense since otherwise we
will have endless court proceedings in matters that are best left
to the electorate.
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