I've been told that it's impolite to say "I told you so," so I won't say that exactly. But given today's divisional court decision overturning Toronto Mayor Rob Ford's removal from office I will at least say this: "The lawyer I quoted told you so." Back in November, I shared my misgivings about about the lower court's decision to turf Ford. As I wrote at the time, it was ultimately an email message from a concerned Ontario lawyer who had no involvement in the Ford case (and who was no particular fan of Ford himself) that got me most exercised. This lawyer (who wished to remain anonymous) thought that lower court Judge Hackland's big mistake was in concluding that he had no choice but to interpret the City of Toronto Act (COTA) incredibly broadly -- so broadly in fact that it could be read to empower council to be able to force Mayor Ford to pay out over $3,000 for a code of conduct violation, even though the act specifically and explicitly spells out only two possible sanctions in such situations: Council can reprimand the member, or Council can suspend the member's pay. Note requiring the member to pony up his own cash is not one of those two options. As my lawyer acquaintance put it, Judge Hackland's "finding that a provision should be implied and deemed to be included in the City of Toronto Act allowing for the creation of a liability in that manner no doubt goes further, by a country mile, than any judicial decision has ever gone in deeming provisions based on a 'broad interpretation' of legislation."
Well, it turns out the divisional court panel agreed. It granted Ford's appeal because it found that requiring Ford to dig into his own pocket to repay $3,150 in donations made to his charitable football foundation was imposing a penalty beyond those specifically set out by COTA. Judge Hackland's broad interpretation of COTA and deference to municipal powers to allow for this kind of sanction? Not called for, said the Superior Court. It quoted the Supreme Court of Canada, which has said of interpreting municipal regulatory powers: "[W]hen specific powers have been provided for, the general power should not be used to extend the clear scope of the specific provisions." In other words, if Toronto has said the options in these situations are a reprimand or a suspension of pay, a judge has no business allowing other penalties.
Wait a minute, you might be thinking. What about Toronto's Code of Conduct? Doesn't it allow the Integrity Commissioner to recommend "Other Actions" to council as remedial measures, including the "Repayment or reimbursement of moneys received"? Yes, it does. So, isn't that what Council was doing with Mayor Ford, you might ask? No, it wasn't. And that's not just me talking. It's the Superior Court. The decision explains that for one thing, requiring Ford to pay $3,150 was, in this case, clearly meant to be a sanction or punishment, not a remedial measure. The court points out that the Integrity Commissioner herself characterized the payment as a sanction in her report. It goes on to note that "[h]er language in support of that sanction is the language of deterrence and denunciation." And for another thing, the court explains, even if it were a remedial action, requiring Ford to produce $3,150 would still go beyond what's permitted in the "Other Actions" section of the legislation since Ford never personally received any of the money donated to the football foundation. "All funds were received by an arm's length entity, the Toronto Community Foundation," the decision reminds us.
I would encourage all those who might be disappointed or distressed out about Ford's win in court today to read the Superior Court's logical and clear decision. And to do this from as neutral a posture as can be mustered. Do you think Rob Ford is unfit to lead Toronto? Then begin a campaign for a better candidate for 2014. But don't try to use the legal system to undo what you feel was a poor decision on the part of Toronto's voters. Why is Rob Ford still in office? Because Council did not have the authority to impose the penalty on him that it did, so he did not violate the law by voting on the measure. Whatever you might think of Mayor Ford, that is the reasonable legal conclusion and it deserves our deference.
Toronto Rob Ford, right, gestures to Councillor Paul Ainslee in the council chamber as councillors look to pass motions to limit his powers in Toronto on Monday, Nov. 18, 2013. Blasting what he called a "coup d'etat," Ford said voters should be able to pass judgment on him, not his fellow councillors.
Toronto Mayor Rob Ford (centre) dances with participants ahead of the Toronto Caribbean Carnival in Toronto on Saturday July 30, 2011.
Toronto City Mayor Rob Ford, left, celebrates after defeating wrestler Hulk Hogan in an arm-wrestling match to promote Fan Expo in Toronto on Friday, Aug. 23, 2013 .
Twenty-two month-old Micah MacMilan reacts as he is picked up by Toronto Mayor Rob Ford while Ford was signing bobblehead dolls in his likeness at City Hall in Toronto on Tuesday November 12, 2013.
Toronto Mayor Rob Ford holds up a replica Grey Cup as he attends the Toronto Argonauts and Hamilton Tiger-Cats CFL Eastern Conference final football game in Toronto on Sunday, Nov. 17, 2013.
Toronto Mayor Rob Ford laughs with fans as he attends the Toronto Argonauts and Hamilton Tiger-Cats CFL Eastern Conference final football game in Toronto on Sunday, Nov. 17, 2013. Ford showed up at Sunday's Canadian Football League playoff game, despite a request by the league's commissioner that he stay away.
Canadian recording artist Drake, left, and Toronto Mayor Rob Ford laugh at a news conference announcing that Toronto will host the 2016 NBA All-Star game, in Toronto, Monday, Sept. 30, 2013.
Toronto Mayor Rob Ford displays a milk moustache as he takes part in voting with city council members in Toronto on Thursday, Nov. 14, 2013.
Toronto Mayor Rob Ford watches from the sidelines near the Argos bench during a CFL football game between the Toronto Argonauts and Calgary Stampeders in Calgary on Saturday, August 18, 2012.
Toronto Mayor Rob Ford poses for photographs inside a giant shark mouth while attending the grand opening of the Ripley's Aquarium of Canada in Toronto on Wednesday, Oct. 16, 2013. After two years of construction, delays and (Canadian) $130 million in costs, Ripley's Aquarium of Canada opened to the public Wednesday.
City of Toronto Mayor Rob Ford poses for a photo opportunity with other dignitaries in a shark's jaws at the opening of Ripley's Aquarium of Canada in Toronto on Wednesday, October 16, 2013.
Toronto Mayor Rob Ford is hoisted into the air by his Don Bosco Eagles team after winning the Metro Bowl quarter-final at Birchmount Park in Toronto, Thursday Nov. 15, 2012. A civil trial hearing in which the mayor is accused of libel against a restaurant owner went on without him.
Toronto Mayor Rob Ford (center) smiles as he officially opens the refurbished Sunnydale rink with Toronto Maple Leafs' coach Ron Wilson (right) and other dignitaries who were on hand as well as the Toronto Maple Leafs who practiced on the outdoor rink in Toronto on Wednesday, January 4, 2012.
Toronto Mayor Rob Ford grabs the Grey Cup by the handles during a parade celebrating the Toronto Argonauts victory in the Grey Cup final in Toronto on Tuesday November 27, 2012 .
<a href="http://www.huffingtonpost.ca/2012/08/31/rob-ford-butter-sculpture-ex-cne_n_1846616.html" target="_hplink">Toronto Mayor Rob Ford comes face to face with a butter sculpture of himself at the Canadian National Exhibition</a>.
As part of an exhibition at the CNE, Toronto-based artist Olenka Kleban has made a <a href="http://www.huffingtonpost.ca/2012/08/24/butter-rob-ford-sculpture_n_1828527.html" target="_hplink">butter sculpture of Toronto's mayor</a>.
Toronto Mayor Rob Ford hoists the Grey Cup on stage with Toronto Argonauts players while celebrating the team's Grey Cup victory in downtown Toronto on Tuesday, Nov.27, 2012.
Toronto Mayor Rob Ford stands at the door to his office as he waits for an elevator in Toronto on Thursday November 14, 2013.
Mayor Rob Ford speaks at city council in Toronto on Wednesday, Nov. 13, 2013.
Nov. 13 2013. Toronto mayor Rob Ford during the afternoon session as councillors continued to debate a motion asking mayor Rob Ford to apologize to Torontonians for misleading therm about his use of crack cocaine.
Toronto Mayor Rob Ford speaks to his Don Bosco Eagles team during the Metro Bowl quarter-final at Birchmount Park in Toronto, Thursday, Nov. 15, 2012.
In this Tuesday, Nov. 12, 2013 file photo, Toronto Mayor Rob Ford holds a bobblehead doll depicting him at Toronto City Hall. An electoral map of the 2010 mayoral election shows that Ford's voter base resides mainly in a more conservative constituency than the downtown electorate.
Toronto Mayor Rob Ford (left) and city councillor Michelle Berardinetti (right) smile on stage during a performance of the Nutcracker in Toronto on Saturday, December 10, 2011. (THE CANADIAN PRESS/Pawel Dwulit)
Toronto Mayor Rob Ford jumps on stage dressed as a Cannon Doll during a performance of the Nutcracker in Toronto on Saturday, December 10, 2011. (THE CANADIAN PRESS/Pawel Dwulit)
Toronto Mayor Rob Ford acts on stage dressed as a Cannon Doll during a performance of the Nutcracker in Toronto on Saturday, December 10, 2011. (THE CANADIAN PRESS/Pawel Dwulit)
City of Toronto Mayor Rob Ford addresses the media outside office in Toronto on Thursday, Nov. 7, 2013, after the release of a video. A new video surfaced showing Ford in a rage, using threatening words including "kill" and "murder."
Toronto Mayor Rob Ford emerges from his office holding slices of a birthday cake to offer to members of the media at city hall in Toronto on Tuesday May 28, 2013.
Toronto Mayor Rob Ford arrives at City Hall in Toronto amid allegations of crack cocaine use on Friday May 17, 2013, in Toronto. Published reports say a video appears to show Ford smoking crack cocaine. Ford called the allegations ridiculous.
Toronto City Mayor Rob Ford watches players from Don Bosco Eagles, the High School team he coaches, warm up before they compete against the Huron Heights Warriors in the Metro Cup in Toronto on Tuesday November 27, 2012 Those whose antics threaten to besmirch the party name normally don't get a second chance with Canada's federal Conservatives. Not so, it would seem, for Toronto Mayor Rob Ford.
Toronto Mayor Rob Ford carries the Pan American games flag in Omnilife Stadium during the closing ceremonies of the 2011 Pan American Games in Guadalajara, Mexico on Sunday, Oct. 30, 2011. Toronto will host the games in 2015.
Toronto City Mayor Rob Ford reacts after Don Bosco Eagles, the High School team he coaches, lost 28-14 to Huron Heights Warriors in the Metro Cup in Toronto on Tuesday November 27, 2012.
Toronto Mayor Rob Ford talks to a staff member at city hall in Toronto on Wednesday November 6, 2013.THE CANADIAN PRESS/Chris Young
Toronto Mayor Rob Ford addresses reporters at City Hall in Toronto on Tuesday November 27, 2012.
Toronto Mayor Rob Ford briefly takes the stage to greet the crowd as part of the New Years Eve celebrations at Nathan Phillips Square in Toronto on Monday, December 31, 2012.
Toronto Mayor Rob Ford sits on the back of Chicago's First Lady as he takes in an architectural boat tour on the Chicago River Wednesday, Sept. 19, 2012. Ford was visiting the city on a Toronto-Chicago Business Mission.
<a href="http://www.huffingtonpost.ca/2012/11/21/rob-ford-fall-gif-video_n_2170653.html">Rob Ford was at an event to promote the Grey Cup when he fell while hamming it up for the press. A GIF of the fall went viral on the Internet</a>.
Chicago Mayor Rahm Emanuel, left, makes a light hearted comment as Toronto Mayor Rob Ford laughs during the signing of a new "sister cities" declaration Wednesday, Sept. 19, 2012, in Chicago.
Toronto Mayor-elect Rob Ford, centre, raises his arms with his wife Renata, right, and mother Diane, left, as he speaks to supporters in Toronto on Monday, October 25, 2010.
Toronto Mayor Rob Ford, top right, waves to photographers during a boat tour with members of the Toronto-Chicago Business Mission on the Chicago River waterfront Wednesday, Sept. 19, 2012, in Chicago.
<a href="http://www.huffingtonpost.ca/2012/08/22/dave-chappelle-rob-ford_n_1822240.html?utm_hp_ref=canada-politics" target="_hplink">Comedian Dave Chappelle met briefly with Toronto Mayor Rob Ford</a> on Wednesday, Aug. 22, 2012
<a href="http://www.huffingtonpost.ca/2012/08/14/rob-ford-reading-driving-car-gardiner_n_1776183.html" target="_hplink">Rob Ford is seen reading while driving</a> in this photo from Twitter.
<a href="http://www.huffingtonpost.ca/2012/07/30/rob-ford-will-ferrell-zach-galifianakis-sketch_n_1719420.html" target="_hplink">Rob Ford meets with comedic actors Will Ferrell and Zach Galifianakis</a>.
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