Premier Doug Ford continues to be the target of Integrity Commissioner complaints by opposing members of Ontario's legislators. Although there is value in having a complaint process to oversee the conduct of elected representatives, the process should not be used as a means to sensationalize perceived controversial government decisions or to make unsupported, frivolous accusations against an elected member in order to impugn their integrity. Accordingly, where a complaint is based on insufficient evidence, an Integrity Commissioner has the ability to refuse to conduct an inquiry.
In Office of the Integrity Commissioner (Re The Honourable Doug Ford and The Honourable Steve Clark), January 18, 2023, the Ontario Integrity Commissioner concluded that a complaint made by Green Party leader, Mike Schreiner, against Premier Ford and Minister of Municipal Affairs and Housing, Steve Clark, about the government's changes to the Greenbelt Plan was unworthy of an inquiry.
In the fall of 2022, the Ontario government announced that it would permit a portion of land located in the Greenbelt to be developed. This portion of land had previously been protected from development. The announcement created political controversy because the media linked this portion of land to developers who had donated money to the Progressive Conservative Party of Ontario or hired "conservative" lobbyists (or both). The media also reported that some of the properties in this portion of land had been recently bought prior to the government's announcement. This raised suspicion in those opposed to the changes that the developers and/or lobbyists had received inside information before the announcement was made on the theory that a developer would not otherwise be inclined to buy land that was protected from development.
Based on the media reports, Mr. Schreiner complained to Ontario's Integrity Commissioner that Premier Ford and Minister Clark had breached sections 2 and 3 of the Members' Integrity Act, 1994. He also contended that Premier Ford and Minister Clark had breached "parliamentary convention" even though Mr. Schreiner failed to specify what parliamentary convention was contravened.
Section 2 provides that:
A member of the Assembly shall not make a decision or participate in making a decision in the execution of his or her office if the member knows or reasonably should know that in the making of the decision there is an opportunity to further the member's private interest or improperly to further another person's private interest.
Section 3 states that:
A member of the Assembly shall not use information that is obtained in his or her capacity as a member and that is not available to the general public to further or seek to further the member's private interest or improperly to further or seek to further another person's private interest.
In general, while the Act is designed to prevent conflicts of interest, it does not include "apparent" conflicts of interest or, in other words, the perception or appearance of conflicts.
The Act also does not apply to political interests. The existence of a political interest does not fall within the definition of a "private interest" under the Act.
Here, the alleged conflict of interest was linked to donations made to the Progressive Conservative Party of Ontario. This creates a "political interest" because a donation shows that the donor supports the party. However, such a donation does not give rise to a "private interest" because the member accused of a conflict of interest does not have possession or control of the money.
The Integrity Commissioner found that Mr. Schreiner's complaint simply did not support the need for an inquiry into the alleged breach of either section 2 or 3. The evidence did not disclose that the government's changes to the Greenbelt Plan advanced the private interests of either Premier Ford or Minister Clark. As well, there was insufficient evidence that either the Premier or the Minister had used non-public information which they obtained in their capacity as elected members to advance the private interests of developers.
To conduct an inquiry under the Act, the Integrity Commissioner had to be satisfied that there were reasonable and probable grounds to believe that another member breached the Act. While the media articles raised a suspicion that the developers had advance notice of the government's changes, a suspicion did not amount to reasonable and probable grounds. As determined in R. v. Mackenzie, 2013 SCC 50 (CanLII) at paragraph 65, the requirement of reasonable and probable grounds creates a demanding standard that is more than mere suspicion.
The Integrity Commissioner found that Mr. Schreiner's complaint that Premier Ford and Minister Clark breached parliamentary convention seemed to be related to lobbying. Lobbying, however, is not prohibited by parliamentary convention and, indeed, is a well-established activity in politics. It is also a regulated activity that is governed in Ontario under the Lobbyist Registration Act, 1998.
In the result, the insufficiency of evidence doomed Mr. Schreiner's complaint.
This decision shows that before a person files a complaint with an Integrity Commissioner, sufficient evidence should be gathered to support the allegations made in the complaint. To file a complaint that lacks sufficient evidence raises potential questions about the political motives of a complainant. The Integrity Commissioner process is serious in nature and is not meant to be weaponized for pure political drama. Protecting the environment and protecting the Greenbelt has merit. However, simply because a government chooses to amend its plans and permits development within an area where no development was previously allowed does mean that an elected representative has acted in a conflict or without integrity.
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