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.