Ontario’s Municipal Conflict
of Interest Act sets out a statutory
accountability framework for
when participation in local government decision-making is
appropriate. The statute provides
that if a member of a municipal
council or a local board (
including a school board) has a financial
interest in a matter being considered by the council or board,
the member must declare the
interest and must also abstain
from participating, voting and
attempting to influence the voting on any question.
The Act establishes the
requirement as a personal obligation of the member. Contravention carries with it significant
consequences, including an
automatic removal from office
and a potential for disqualification from holding public office
for up to seven years. Given the
serious ramifications to a member, s. 11 of the statute provides
an as-of-right appeal from any
order made where a judge at first
instance determines there has
been a contravention.
Last fall, the Ontario Divisional Court considered an
appeal from a decision where a
member of the council of the
City of Thunder Bay was found
to have contravened the
Municipal Conflict of Interest Act.
The court panel was divided
two-to-one in determining that
it could review the appeal “as
JOHN
MASCARIN
The majority of the
Divisional Court
applied a standard
that conferred no
deference to the court
at first instance.
“
John Mascarin,
Aird & Berlis LLP
we would have as judges in the
first instance.” Some four
months later, a differently constituted panel of the Divisional
Court took an alternate view
and decided that it was not
entitled to hear the matter
afresh on an appeal.
The issue was well framed by
the dissenting judge in Tuchen-
hagen v. Mondoux (2011), 88
M.P.L.R. (4th) 234 (Ont. Div. Ct.):
“Is the Divisional Court
hearing an appeal from a dec-
laration that a city councillor
was in contravention of the
provisions of the MCIA a hear-
ing de novo, as some of the
cases indicate, or an appeal, in
which the usual guidelines from
Housen v. Nikolaisen, [2002] 2
S.C.R. 235 apply?”
The majority of the Divisional
Court applied a standard that
conferred no deference to the
court at first instance. In her dis-
sent, Justice Jane Wilson noted
that “[t]he case law on this issue
is inconsistent.”
Subsection 11( 2) of the
Municipal Conflict of Interest
Act provides an admittedly
broad discretion to the Div-
isional Court to review a judi-
cial decision:
“The Divisional Court may
give any judgment that ought to
have been pronounced, in
which case its decision is final,
or the Divisional Court may
grant a new trial for the pur-
pose of taking evidence or addi-
tional evidence and may remit
the case to the trial judge or
another judge and, subject to
any directions of the Divisional
Court, the case shall be pro-
ceeded with as if there had been
no appeal.”
Earlier this year, the Div-
isional Court again considered
an appeal pursuant to s. 11 in
Amaral v. Kennedy, 2012 ONSC
1334, in a case involving a mem-
ber of the Toronto Catholic Dis-
trict School Board. This time, it
was unanimously decided that
the Divisional Court was not
entitled to hear an application
anew under the Act. The court
preferred the dissenting reasons
in Tuchenhagen and applied the
standard of review test articu-
lated by the Supreme Court of
Canada in Housen to determine
the level of deference required
of an appellate court on an
appeal of a decision under the
Municipal Conflict of Interest
Act. Justice David Aston
observed that the “success of the
appeal rests on the submission
that this court should substitute
its own answers for those of the
trial judge.”
While the language of s. 11( 2)
seemed to imply that the Div-
isional Court could hear a case
de novo on appeal, both the
majority in Tuchenhagen and the
full panel in Amaral recognized
that the wording is similar to
s. 134(1) of the Courts of Justice
Act. Both panels accepted that
the courts have traditionally
been reticent to hear appeals on
a de novo basis and have usually
applied the criteria for the stan-
dard of review developed in
Housen. The majority in Tuchen-
hagen, however, believed that a
hearing de novo was justified
given that importance and
uniqueness of the Municipal
Conflict of Interest Act.
John Mascarin is a partner
with Aird & Berlis LLP in
Toronto. He is a certified specialist (Municipal Law: Local
Government & Land Use Planning and Development) and an
adjunct professor at Osgoode
Hall Law School.
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Act imposes variety of obligations on municipalities
Water
Continued From Page 14
report and, ultimately, a drinking
water source protection plan for
its region. The fundamental goal,
as set out in the s. 1 of the CWA is
“to protect existing and future
sources of drinking water.”
A source protection plan,
among other things, is intended to
establish a list of activities that are
either prohibited or regulated (i.e.
not permitted without a risk man-
agement plan) and a list of land
uses that are restricted in certain
areas. All of these lists will have
impacts on land use planning.
At the time of writing, most of
the SPAs in Ontario have completed their terms of reference
and assessment reports and are
formulating and consulting on
their draft source protection
plans. These are required to be
posted online and interested parties, including municipalities and
members of the public, have an
opportunity to comment.
The CWA provides for comments received in writing as well
as resolutions of municipal councils to be forwarded to the minis-
Because the boundaries
of municipalities and
conservation authorities
often do not coincide,
any given municipality
may have a number of
source protection plans
in effect within its
boundaries.
“
David Germain,
Thomson Rogers
ter of the environment, along
with each SPA’s proposed source
protection plan when that plan is
put forward for ministerial
approval. While there are provi-
sions in the CWA for the appoint-
ment of a hearing officer to deal
with proposed plans, the decision
of whether to do so lies entirely
with the minister. Furthermore,
any hearing officer appointed
only has the power to make rec-
ommendations. Final discretion
to approve, amend or require a
resubmission of a source protec-
tion plan lies with the minister.
David Germain practises land use
planning, municipal and environmental law with Thomson Rogers.
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