Application of the Municipal Conflict of Interest Act to Local Politicians
Local Ontario politicians are subject to a variety of regulations. These include (but are not limited to) the Municipal Act, 2001, SO 2001, c 25 , the Municipal Conflict of Interest Act, RSO 1990, c M.50, municipal Codes of Conduct along with other local bylaws (as set forth by section 223.3(1) of the Act).
Pursuant to the Municipal Act, municipalities are required to have Codes of Conduct. Compliance with those Codes are policed by an ‘Integrity Commissioner’, who is typically a lawyer, appointed by the municipality to investigate complaints that a local politician has acted in contravention. Upon concluding that there has been a breach, the Integrity Commissioner may recommend that the municipality impose either of the following penalties:
- A reprimand
- Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days.
To impose either penalty, a majority vote of Council Members must occur.
Additionally, the Integrity Commissioner may apply to a Judge under section 8 of the Municipal Conflict of Interest Act, RSO 1990, c M.50 for a finding that a local politician failed to disclose a pecuniary interest, and seek one or more of the following penalties:
- Reprimand the member or former member.
- Suspend the remuneration paid to the member for a period of up to 90 days.
- Declare the member’s seat vacant.
- Disqualify the member or former member from being a member during a period of not more than seven years after the date of the order.
- If the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, if the party’s identity is not readily ascertainable, to the municipality or local board, as the case may be.
In addition, as the scheme is enforced through the civil system (and is essentially akin to a regulatory offence), if successful, the Integrity Commissioner is entitled to recover the costs of the proceeding, though amounts awarded can be modest, even where breach has been found. See Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640 (CanLII), and City of Elliott Lake v. Pearce, 2021 ONSC 7859 (CanLII). Likewise, where a Member successfully defends, they can likely recover a majority of their costs both in the proceeding and as against the municipality’s insurance coverage (for elected officials, though for reimbursement a finding of no contravention may be necessary, though specific policy language may differ).
Moreover, certain provisions of the Municipal Conflict of Interest Act, RSO 1990, c M.50 may be vulnerable to constitutional challenge (for instance, section 223.7 has been used to preclude the Applicant Commissioner/investigator from testifying, in abrogation of a party’s common law rights to confront accusers).
Of course, like many laws, the above can be misused for partisan political purposes, and the conflict provisions have for decades been described as ‘traps for the unwary’[1]. Keeping this in mind, the penalty should be ‘proportionate to the act’ such that municipal government is not ‘deprived of the services of good people.’
If an Integrity Commissioner has brought an Application against you, call today to speak with our Toronto and Hamilton lawyers at 1-647-495-8995 to determine whether we may be able to assist..