Council pays for ignoring legal advice – told not to pay candidates bills

Tuesday, May 18, 2010

“Ultimately, the control over all this lies with voters at the ballot box on Oct. 25. Those who don’t like council spending taxpayers’ money on such extra-curricular activities have a simple solution: Toss the bums out, and elect councillors who are more cautious with the public purse.”

Decision to pay campaign legal bills challenged

Peter Kuitenbrouwer,  National Post

It is a fair bet that Anna Kinastowski, solicitor of the City of Toronto, would have preferred to not spend all day Monday sitting mute on a green leather bench in the back of Courtroom Three, on the second floor of Osgoode Hall, listening to debate in Douglas Holyday v. City of Toronto, Sandra Bussin, Adrian Heaps and Giorgio Mammoliti.

Ms. Kinastowski tried to avoid this day. On three occasions, she warned city council not to pay legal bills for costs that councillors racked up as candidates.

“Should council choose to reimburse the councillor,” Ms. Kinastowski warned in a report to council in September 2008, “its actions could be subject to a legal challenge on the basis of lack of jurisdiction, and would be vulnerable. If a court found the reimbursement to be illegal, it could order reimbursement of the grant.”

The city pays Ms. Kinastowski big bucks to write stuff like this. But council ignored her advice. Instead, council voted four times to pay legal bills of councillors, including $82,478 to pick up legal fees and ancilliary costs for a compliance audit of election expenses by Councillor Adrian Heaps (Scarborough Southwest), $65,680 to pay Mr. Heaps’ costs in a defamation suit (he has not accepted that money), $92,276 to Councillor Giorgio Mammoliti (York West) to defend himself against claims, and $18,335 to Councillor Sandra Bussin (Beaches-East York) to sue a citizen for defamation.

Councillor Holyday (Etobicoke Centre) voted against these awards. Then he went further, hiring lawyer George Rust-D’Eye, author of the Ontario Municipal Law Owners Manual, 2010, to sue the City of Toronto in Divisional Court, seeking an order that council broke the law.

“I disagree with many decisions made by council, but it’s seldom that I can get an authoritative second opinion,” Mr. Holyday said yesterday, when the panel of three black-robed, red-sashed judges– Mr. Justice David McCombs, Madame Justice Katherine Swinton and Mr. Justice Herman Wilton-Siegel — took a break from the proceedings. “Council can’t just declare themselves God and do whatever they please. They are governed by laws just like everyone else.”

And so the city racks up more costs defending council’s actions. Given that council ignored the city’s legal advice, the city had to hire outside counsel to defend this suit: Alan Lenczner, one of the top legal eagles on Bay Street. Mr. Lenczner told me yesterday he charges the city “a discounted rate,” but this still adds up. Meanwhile, lawyer Peter Greene appeared on behalf of Mr. Mammoliti and conceded that his client may, down the road, ask council to pay this bill as well.

Mr. Lenczner made some fairly sweeping claims: He said “Toronto is the fifth-or sixth-largest government in North America.” Hard to believe; are we bigger than, say, the state of Texas?

Mr. Lenczner also said council has to defend councillors “if you want people of modest means to run for public office,” noting that city councillors “get paid $90,000 before tax.” (In fact, remuneration and benefits per councillor in 2009 totalled $120,781.)

“This is a laudable, permissable city objective,” he said of council’s payouts.

Mr. Justice McCombs hinted agreement: “There is a whole legal library proving that courts should steer clear of politics.”

But Mr. Rust-D’Eye countered, “I submit that there is no statutory authority here. If [councillors] are going to be compensated, there must be some statute somewhere.”

Ultimately, the control over all this lies with voters at the ballot box on Oct. 25. Those who don’t like council spending taxpayers’ money on such extra-curricular activities have a simple solution: Toss the bums out, and elect councillors who are more cautious with the public purse.

The court reserved judgement.

pkuitenbrouwer@nationalpost.com

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