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Bias - Municipal. Racco v. Corporation of the City of Vaughan [recusal of councillor]
In Racco v. Corporation of the City of Vaughan (Ont Div Ct, 2026) the Ontario Divisional Court dismissed two municipal councillor-brought JR applications, these against "findings of the Integrity Commissioner (IC) and the sanctions imposed by Council".
The court considered a 'bias' issue, here where the complainant was another municipal councillor and that councillor did not recuse themselves from Council votes regarding the complaints and the IC recommendations:Did Council demonstrate a reasonable apprehension of bias in its decision?
[38] The question of whether Council’s decisions exhibited a reasonable apprehension of bias because the complainant did not recuse herself is more difficult. However, ultimately, I have concluded there was no reasonable apprehension of bias.
[39] To understand the decision-making role of Council members, it is important to consider the nature of Council and the particular statutory context. Council members are elected to represent their constituents. The decisions they make are voted on in transparent, open sessions. There is no statutory requirement for a Council member to recuse themselves from voting on any matter, except where they have a pecuniary interest: Municipal Conflict of Interest Act, R.S.O. 1990, c. M. 50, s. 5.
[40] There can be no doubt that a Council member would need to recuse him or herself where it was established there was a reasonable apprehension of bias. But the test for bias in this context is stringent. In Old St. Boniface Residents Assn Inc. v. Winnipeg (City), 1990 CanLII 31, [1990] 3 SCR 1170, the question was whether a city councillor who had been personally involved in the planning of a proposed development and had appeared as an advocate for it was disqualified from voting on the related zoning by-law. The court found he was not. Although he had advocated for the development, he did not have a personal interest in it. At p. 1197, the court found the test to be whether a member of council is “capable of being persuaded.”
[41] I have considered the possibility that the current situation is different because it did not involve a council member expressing views on a policy issue. On that question, it is helpful to look to Chiarelli, where the council member was sanctioned by city council for sexual harassment against three women seeking employment in his office. Although the council members themselves were not the complainants, some council members made strong statements in favour of the complainants before the vote. For example, some councillors issued public statements supporting the women and commending them for coming forward. Two council members publicly stated they believed the women’s allegations to be true.
[42] This court concluded that the public statements did not reflect a closed mind on the part of the council members. The court was more troubled by some council members’ actions in refusing to sit with Councillor Chiarelli at Council table and calling on him to resign. Because the penalty council could impose was limited to suspension of remuneration for up to 90 days, resignation was not a publicly available penalty. Demands to resign therefore gave the appearance of pre-judgment on the issue of sanction.
[43] Considering the guidance from Chiarelli, I would not find Council exhibited a reasonable apprehension of bias in this case. To start, Mr. Racco did not raise the allegation of bias before Council and give the complainant a chance to respond or for Council to rule on it. As set out above, this is fatal in most cases. The complainant had no opportunity to express the degree to which she had an open mind on sanction.
[44] I am also not satisfied the nature of the complainant’s interest was sufficient, to be of the type that disqualified her, without needing an inquiry into whether she had an open mind, for two reasons: First, it is anticipated by the wording of s. 223.4(1) of the Act that Council members, or Council as a whole, may make complaints to the IC. If Council as a whole complained to the IC, it could not be expected that all Council members would recuse themselves from a resulting vote. It is therefore possible under the legislation to be both complainant and voting member of Council.
[45] Second, although the complainant lodged complaints about Mr. Racco’s conduct, the role of Council is not to make factual determinations or reach conclusions about conduct. It is only the IC’s report that reaches those types of determinations. Pursuant to s. 223.4(5) of the Act, the role of Council is only to determine whether to impose penalties on a member of Council if the IC reports to the Council that the member has contravened the Code of Conduct. Although she filed the complaints, the complainant did not express an opinion in her complaint on sanction. She could have been of the view that the sanctions recommended by the IC were too lenient or too stringent. However, she did not say anything in the Council meeting at all. There are therefore no comments that reflect any predetermined view on sanction
[46] I also note that, having not made any comments during the Council meeting, the complainant did not try to influence the vote of any other Council member. In all of these circumstances, I am not persuaded Council’s decision exhibited a reasonable apprehension of bias.
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