Oro-Medonte Township’s integrity commissioner has been a busy fellow lately.
At this week's council meeting, John Ewart appeared via Zoom and presented the results of three investigations — two regarding alleged code of conduct violations and one regarding an alleged violation of the Municipal Conflict of Interest Act (MCIA).
In one case, Ewart concluded that a member of council did breach the township’s code of conduct. The member of council received a reprimand, had his pay suspended for 90 days and he received a copy of the integrity commissioner's report to review.
In the two other cases, Ewart found no contraventions had been committed.
The first investigation Ewart presented was against a member of council who, it was alleged, contravened the MCIA “by being present in the council chamber when a delegation regarding short-term rentals (STRs) was received by municipal council.”
The complaint was based on the fact that the member of council, having previously declared a conflict of interest regarding the subject of STRs, remained in the council chambers during an Aug. 14, 2024 meeting to hear two deputations about STRs.
It was alleged that the member of council, being the operator of an STR, contravened the provisions of the MCIA by being present during the delegations. In doing so, it was alleged that the member of council breached the MCIA as they had a pecuniary interest in the subject matter of short-term rentals.
“The receipt of a deputation made to municipal council could not be considered as advancing the business of the municipality and therefore not capable of resulting in a pecuniary interest to the member,” Ewart said.
According to Ewart’s report, “the purpose of the MCIA is to prevent members from influencing the consideration of a matter which they have a direct or indirect pecuniary or financial interest.”
Ewart said he considered two issues when coming to his conclusion:
- Did the councillor contravene the MCIA?
- Should an application be made to the courts pursuant to the MCIA?
Ewart concluded the answer to both issues was no.
“Having conducted my inquiry, I am persuaded that no breach of the Municipal Conflict of Interest Act has occurred due to the member of council having been present during the deputations regarding short-term rentals by members of the public on Aug. 14, 2024,” Ewart wrote.
“Furthermore, it is my finding that the member did not breach the provisions of the MCIA by voting to receive the deputations," he added. "Neither of these acts would serve to constitute a contravention of the MCIA and the consequences of such a contravention as provided for by section 9 of the act.
“Accordingly, it is my decision that no further steps will be taken as it relates to this matter."
The other case was against a member of council who posted to the Moonstone Community Facebook group on Feb. 9, 2024.
According to the report, the member of council “responded to and engaged in a conversation with a resident which began over the issue of a tree-cutting bylaw.”
The complainant alleged the member of council violated 28 sections of the municipal code of conduct.
“Despite citing 28 sections of the code of conduct, the complainant has referred to five examples stemming from postings of Feb. 9, 2024, which were put forward to support the allegation that the member breached the code of conduct, but without specific reference to the code of conduct,” Ewart wrote.
“Rather, the complainant has referenced the postings of the member of council as being false or inaccurate as well a conduct which failed to promote the public trust and were intended to bully, intimidate and harass a resident," he added.
Ewart’s report noted the posts were directed at, or in response to, posts made by another individual, not the complainant, and that the individual who was the subject of the posts made by the member of council has not complained about the posts nor have they contacted the integrity commissioner's office, despite requests to the complainant to provide contact information for the individual.
“Having not heard from the resident and not being able to contact the resident, my inquiry can only address the issue of whether the postings, which were set out over 61 pages as provided by the complainant and discussed with both the complainant and the member, constitute a contravention of the Municipal Code of Conduct,” Ewart wrote.
Ewart said there were three issues in this case:
- Did the member, through his postings to a community Facebook page, make statements that were false, misleading and contrary to the municipal code of conduct?
- Did the member contravene the municipal code of conduct by failing to treat a member(s) of the public with dignity, understanding and respect by his posts to the Moonstone Community Facebook social platform?
- Did the postings by the member to a community Facebook platform constitute a form of abuse, bullying or intimidation contrary to the municipal code of conduct, section 9.1?
On the first issue, according to Ewart’s report, the courts have stated that as an elected representative of the public, a municipal councillor is entitled to adopt a leadership role on an issue.
“As part of the political process a council member has every right to form views, to hold views, to express views, and, while in office, and to give effect to those views through a medium such as social media,” Ewart said.
Secondly, he noted, it is a principle in Canadian law that the “person who asserts must prove.”
“In the case at hand, the onus does not lie on the member of council to prove that his comments were accurate,” Ewart said. “On the contrary, the member can only be found to have contravened the code of conduct if it is established that his comments were inaccurate, untrue or misleading.
“This has not been established,” he added.
Lastly, he noted, the municipal code of conduct does not apply to opinions held by members of council.
“Expression of political opinion lies outside an integrity commissioner’s purview,” Ewart said.
On the second issue, Ewart concluded the member’s comments were within the bounds of an online conversation among people who disagree.
“In the context of social media, it is a relevant fact in this inquiry that the parties involved were voluntary participants in the online conversations,” Ewart said. “In this regard, it is expected that if you make a post, you should anticipate a reaction. If you criticize someone online you must expect a response.
“Such is the nature of social media,” he added.
Ewart found the member of council’s comments were within the bounds of an online conversation among people who disagree.
On the third issue, Ewart concluded the councillor’s posts to the community Facebook page did not constitute a form of abuse, bullying or intimidation.
He arrived at this conclusion based on the comments of Justice L’Heureux-Dube in the case of Committee for the Commonwealth of Canada v. Canada, which Ewart said are applicable to this case.
In that case, L’Heureux-Dube said nobody was required to follow the mayor who was involved.
“People are not confronted with her opinions; they choose to access them,” he wrote. “Canadian courts have underscored the difference between messages that people can void and messages that confront a captive audience. Only people who choose to access the mayor’s posts will see them.
“One cannot be bullied or intimidated by a message that one need never view in the first place, and that one is free to ignore,” he added.
“Accordingly,” Ewart wrote, “it is my finding that the member by posting to a local community Facebook did not engage in conduct that was bullying, abusive, intimidating or harassing to the resident.”
He concluded the member of council did not contravene the municipal code of conduct.