For those interested in reading the Justice Brown judgment in full — it can be read here.
Archive for the ‘Code of Ethics’ Category
Posted by auroracitizen on July 28, 2011
Posted by auroracitizen on July 27, 2011
There has been a flurry of news articles about our wee town as a result of the decision by Judge Brown on the Phyllis Morris defamation lawsuit. In case you might have missed some, they are listed below.
If you see additional articles please add them as comments and we will add the new articles to this post. Don’t forget to check out the comments on the articles. They are also an interesting read.
Why faceless sniping deserves protection
Ivor Tossell, Aug 3, 2011, Globe & Mail
Court grapples with legalities of anonymous online postings
Michael Geist, Internet law Columnist, Sunday July 31, 2011, Toronto Star
EDITORIAL, National Post: Right balance on online free speech
Thursday Jul. 28, 2011, Page A1
Morris ruling could set precedent: lawyer
Jeremy Grimaldi, July 27, Era Banner
OPINION: Jesse Kline: No pity for spineless politicians who don’t respect free speech
Wednesday July 27, National Post
Aurora ex-mayor’s critics can remain anonymous
Gloria Er-Chua, Staff Reporter, Tuesday July 26, Toronto Star
Aurora critics can remain anonymous, judge rules
Reporter Megan O’Toole, Tuesday July 26, National Post
Who was that masked man? Court protects anonymity of Internet users
David Elder, July 26, 2011, Strikeman Elliott Blog: Canadian Technology & IP Law
Aurora Bloggers Fight Being ‘Silenced’
Reporter Megan O’Toole, Wednesday June 15, National Post
Locally, The Auroran has also covered this issue and you can look up via the ”current issue” or “past issues” link http://www.theauroran.com/
Morris motion thrown out
The Auroran, Week of July 26. Front Page and page 8,
Posted by auroracitizen on April 26, 2011
April 23, 2011
To: The Auroran & the Aurora Citizen (www.auroracitizen.ca)
Re: Conflict of Interest and Phyllis Morris v. Johnson et al.
Furthermore to my letter earlier this month, entitled “Please help me understand how litigation against three Aurora citizens was approved”, I would like to add the following information in regards to the defamation action of Phyllis Morris v. Johnson et al.
I reference the Ontario Municipal Conflict of Interest Act. (R.S.0. 1990, Chapter M.50) found at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm .
The Act helps control the actions of our elected officials who hold the public trust. Its main purpose is to prevent them from benefiting financially from a decision in which they were involved in the process. The Act generally states that if there is a matter that comes before Council that would touch on a member of Council’s direct or indirect pecuniary (of or related to money) interest then it is the duty of that member not to participate in the decision-making process for that matter and to declare this conflict of interest.
I would draw your attention to the following sections taken from the above online reference:
Duty of Member
When present at meeting at which matter considered
5. (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question. R.S.O. 1990, c. M.50, s. 5 (1).
Where member to leave closed meeting
(2) Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration. R.S.O. 1990, c. M.50, s. 5 (2).
Record of Disclosure
Disclosure to be recorded in minutes
6. (1) Every declaration of interest and the general nature thereof made under section 5 shall, where the meeting is open to the public, be recorded in the minutes of the meeting by the clerk of the municipality or secretary of the committee or local board, as the case may be. R.S.O. 1990, c. M.50, s. 6 (1).
(2) Every declaration of interest made under section 5, but not the general nature of that interest, shall, where the meeting is not open to the public, be recorded in the minutes of the next meeting that is open to the public. R.S.O. 1990, c. M.50, s. 6 (2).
As referenced by the minutes of the Aurora Town Council meeting of September 14, 2010, then Mayor Morris participated in the closed session portion of the meeting that subsequently resulted in the motion “THAT the Town Solicitor be directed to retain external legal counsel and to take any and all actions to bring resolution to this matter”. She participated in the closed meeting but did not vote on this motion as she left once coming out of closed portion of the evening. It is this motion that eventually led to the litigation against Johnson et al.
The first agenda item of a Council Meeting is the “Declarations of Pecuniary Interest”. For the September 14 meeting Councillor Collins-Mrakas had a declaration on another matter but there were no other declarations in the minutes.
I will allow the reader to formulate their own perspective, but from one side it could be interpreted that ex-Mayor Morris may have violated the Municipal Conflict of Interest Act. She may have done so by not declaring a conflict of interest and through her subsequent participation in the closed session meeting concerning the Town’s direction that lead to the litigation against Johnson et al. In this litigation she would be the sole beneficiary and not the Town. She could be seen as having a pecuniary interest and that she failed to declare a conflict of interest.
As taken from George Rust-D’Eye’s Executive Summary: “The retainer letter signed by the Mayor and the Town on October 6, 2010 leads to the conclusion that both are jointly and severally liable for paying the legal expenses incurred for the defamation action.”
Even if for argument’s sake Ms. Morris sought $0 damages, the fact that the Town was liable for expenses in her legal matters could possibly still show pecuniary interest as there could be either a reduced or no out of pocket expense for her in proceeding with this private action. It is noted that although this action started with the plaintiff as Mayor Phyllis Morris it was later changed to a plaintiff of Phyllis Morris to express that it was a personal matter and not one for the Town of Aurora. Also please note that the Town as per its March 29, 2011 council meeting minutes passed the motion to “pay the legal accounts of Aird & Berlis LLP for the services up to and including December 15, 2010 and for additional outside counsel, Paterson MacDougall for services rendered up until December 21, 2010.”
I note from Mr. Rust-D’Eye’s Executive Summary: “at the same time, Phyllis Morris appeared to have a pecuniary interest in the matter under consideration by the Council, in view of the fact that the debate involved a proposal that the Town provide or pay for legal services for her defamation action against third parties, at that time without any undertaking on her part to repay the Town, whether she was successful or not – the Town appeared to assume the entire financial risk, with the Mayor standing to obtain a personal benefit from success in the proceedings”.
For some it may be thought that her participation in the closed session meeting and the failure to declare a conflict of interest was perhaps committed through any oversight or by reason of an error in judgement. But for others they may ask whether this would be the mistake of a politician with numerous years of experience. As taken from her own website (www.phyllismorris.net) Phyllis Morris had 6 years as a Councillor, 3 years as Deputy Mayor and 4 years as the Mayor with this incident occurring at the end of her mayoral term. Sampling a review of council meeting minutes in recent years, councillors and the mayor for a variety of reasons express a conflict of interest at the start of the meeting. Ms. Morris had in the past (Town of Aurora, Council Meeting Minutes No. 08-22, Tuesday August 12, 2008) declared a conflict on a particular matter. But with this incident at the September 14th meeting she did not declare a conflict of interest nor did she do so at any subsequent meeting in regards to her attendance to the closed session meeting that started the action against Johnson et al.
I allow the reader to interpret the information to their own accord and I stand open to correction on any of the information that I have presented.
Posted by auroracitizen on February 23, 2011
At last nights Council meeting many were hoping that Councillor Gaertner would do the honourable thing and retract her comment about Mr Leach “doctoring” the minutes — yet none was forthcoming. Yet, surprising to some, she was allowed to address comments towards staff.
Comments on this blog asked why? We wondered the same thing.
If Councillor Gaertner did not retract the comment then the good name of Mr Leach is still besmirched by Councillor Gaertner.
In the absence of specific comments from Mayor Dawe and Council, one can only surmise that they hope to move on from this unfortunate turn of phase by Councillor Gaertner — possibly to focus on the things this council was elected to do.
Mayor Dawe has made the point that this behaviour is not to be tolerated.
Councillor Pirri has made the point that it contravenes the Procedural By-law.
And Councillor Gaertner has made the point that she lacks class and holds the Procedural By-law in contempt (and by default the voters of Aurora) when it does not suit her purposes.
We are also disappointed that Councillor Gaertner did not do the honourable thing, but if Council focuses on this behaviour they no longer are focusing on the key issues and are mired in personality issues. Exactly what many criticized the last Mayor and Council for — for using their position to try to silence Councillor Buck. How long would this continue if both sides stuck to their positions. How long are Council willing to allow Councillor Gaertner to hijack the Council agenda with her antics?
Hopefully by stepping back, Council has demonstrated some leadership that will rub off on Councillor Gaertner. Possibly she will also demonstrate some leadership and step back as well.
Apparently Councillor Gaertner was on better behaviour last night (according to comments) and maybe, just maybe, she has learned a little something about what is expected of her.
So maybe this is best. Although not particularly satisfying.
We can only hope and pray. Time will tell.
Posted by auroracitizen on February 16, 2011
If you watched former Councillor Alison Collins-Mrakas’ past program on The Auroran-Online, one can hardly believe the scene that was being described as having taken place at the Aurora Council meeting of February 8.
Councillor Gaertner appears to have completely forgotten why she was elected and possibly is showing the strain of trying to serve those who elected her — rather than the community she was elected to serve.
Her attack on John Leach, the Town Clerk, accusing him of doctoring the minutes and her demand that the minutes of a previous meeting be amended to correct, in fact, overturn her own spoken word, is baseless, cowardly and demeaning to Mr. Leach and in contravention of all civil procedure.
“Minutes are to provide an accurate record of what happened. The DVD is very clear that I did not ask to move the motion. I did not raise my hand to move the motion. I would have had no knowledge that I would have been assumed to be the mover of the motion. In my opinion, if the minutes stand as they are now, this record has been doctored.”
Councillor Gaertner ranted on at great and loud length, repeating herself numerous times, despite admonitions from the Mayor and conceivably others present in the chamber.
All of this about a request by the Councillor Gaertner for a recorded vote that was seconded by Councillor Buck, and which request (motion) Ms. Gaertner now says she did not make and thus demands an amendment to the minutes.
Mr. Leach has subsequently viewed the DVD of the meeting in question several times and confirms that Ms. Gaertner did IN FACT made the request which in its context was taken as a motion, was duly seconded and voted upon by members of Council.
“At the time that this matter was considered, the motion was read out by myself and Councillor Gaertner requested a recorded vote. The chair, Mayor Dawe, asked for a seconder and the seconder was Councillor Buck and in doing so I believe he recognized Councillor Gaertner as the mover. It is unfortunate that she did not indicate at the time that she wasn’t the mover because I believe the Chair, as well as myself, understood that she was. Subsequently a recorded vote was taken and the action was confirmed by Council’s confirmation bylaw.”
Of course it is interesting that none of these protestations were made the night of the alleged incident — but only after receiving input from others subsequent to the meeting. It makes one wonder if her speaking notes were again written by others.
It feels to many like there are others sitting at the Council table who were not elected to serve — but have another objective in mind. This ongoing confrontational behaviour by Councillor Gaertner (often supported by Councillor Ballard) is a disappointing facet to a Council that is otherwise trying to build good relations and work together. Ms. Collins-Mrakas also appeared to be very much puzzled by this entire episode, wondering what might have prompted it.
In light of the lack of apology forthcoming to Mr. Leach, Ms. Gaertner should have been expelled from the chamber for the balance of the meeting and docked financially. Councillor Gaertner’s refusal once again displays her total lack of respect for the rules of procedure when they don’t support her goals — which clearly is not to have a smooth running Council.
In the province of Ontario we do not have the right or the ability to demand the resignation or recall of an elected representative. If we had such a right, many believe that Wendy Gaertner would be gone from Aurora Council already.
We seem to have moved, following the election, from a dysfunctional majority of Council to a dysfunctional minority of one, or possibly one and a half.
Posted by auroracitizen on February 16, 2011
Mayor Dawe indicated last week that legal bills that have been billed to the Town for the lawsuit by ex-mayor Phyllis Morris are approaching $70,000.
Council is looking for ways to avoid forcing taxpayers to pay for these expenses in what is seen by many as an abuse of power and inappropriate use of tax payers funds.
After a lengthy closed session last Tuesday, Aurora has retained lawyer George Rust-D’Eye as legal counsel to determine the town’s responsibility for the legal bills associated with former mayor Phyllis Morris’ $6-million legal action against 3 private citizens.
Mr. Rust-D’Eye has been charged with examining the Sept. 14 council decision that led to the lawsuit and determining if the contract entered into with the law firm Aird and Berlis was valid.
“Quite frankly, the majority of council feels that this never should have happened in the first place,” Mr. Dawe said. “The town never should have been involved and, therefore, shouldn’t be paying for (the former mayor’s lawsuit).”
Of particular interest will be the impact the fact that Phyllis Morris participated in a discussion that lead a clear financial benefit which would appear to have put her in a clear conflict of interest according to the rules governing this type of behaviour.
The hope is Mr. Rust-D’Eye’s findings will result in the town not having to pay any of the former mayors legal bills. Mayor Dawe indicated that any legal costs connected to getting this legal opinion should be a small fraction of the potential savings.
Only Councillor Wendy Gaertner voted against this week’s motion.
Posted by auroracitizen on February 6, 2011
A mean-spirited, petty and wholly political act has been reversed.
Led by Councillors Nigel Kean and Phyllis Morris and supported by Councillors Gaertner, Vrancic and Wallace, Council created a street out of a parking lot in what appeared to many as nothing more than political revenge against a man who had served the community of Aurora for many years.
Five members of our current Council have righted that wrong.
John West served our community for many years and political opponents would agree that he did so with honesty and integrity. John voted based on his convictions at all times; always believing he was acting in the best interests of his community.
When John disagreed with fellow Municipal Councillors and Regional Councillors — he always did so based on the issues. The debate was passionate, informed and never personal.
He was always willing to share his experience and expertise.
Community leaders like John West set an example of leadership and integrity which other politicians emulated. They argued the issues — often having different viewpoints — but somehow remaining colleagues. They always understood they acted not for themselves, but for the community. That was the type of leadership John West was honoured for.
He was respected by friend and foe alike. That’s why Aurora Council initially bestowed the honour.
It was an honour that he was humbled by.
It is good to see this despicable act reversed. Frankly, the type of leader that makes the decision to strip an honour from someone based on political spite doesn’t deserve to be a leader. It appears Aurora voters agreed last October.
Congratulations to Mayor Dawe and Councillors Abel, Thompson, Humpfryes, Buck and Pirri for listening — and doing the honourable thing.
Posted by auroracitizen on February 5, 2011
Aurora Council have agreed to revisit the controversial Code of Conduct put in place last term. It was agreed at the same meeting where the removal of the complaint against Councillor Buck was finally removed — long past due.
However, one last attempt was made by Councillor Ballard to have it remain on the town website. He wanted to be clear there was no legal downside to removing the complaint.
Possibly, he should have considered the legal downside of having a complaint up months after it had been dealt with by 2 separate “Integrity Commissioners”. Based on the position of last Council, the complaint could have remained indefinitely unless Council decided to remove it.
Finally after Councillor Ballard was assured by the Town Solicitor that there were no legal ramifications it was passed unanimously.
Council now needs to decide whether they need a “made in Aurora” Code of conduct or whether their behaviour can be governed by their Oath of Office and guidelines under the Municipal Act. Time will tell what they decide.
What do you think?
- Does Aurora need a Code of Conduct?
- Did the previous Code have a positive or negative effect on Council behaviour?
- Did the Code actually address the behaviour that so many voters in Aurora found offensive?
- Will this Council become embroiled in the sort of personality clashes that derailed last Council’s term that prompted them to implement a Code in the first place as a hammer against certain Councillors?
- What sorts of behaviour should be covered if a Code is put in place?
Let us know your thoughts.
Posted by auroracitizen on January 25, 2011
Seen as a possible bid to leave before being asked to leave, David Tsubouchi has resigned his post as Aurora Integrity Commissioner effective Feb 20.
The writing was on the wall given that 1 of Mayor Dawe’s election issues was the Code of Practice by the former Council and the role of the Integrity Commissioner in that situation. The report to deal with this issue on the agenda for Tues Jan 25 will be joined by the resignation letter from Mr Tsubouchi.
You may recall that the first Integrity Commissioner was terminated the day after his first ad only ruling declined to address the complaint against Councillor Buck because it was seen as political. Council was only slightly more successful with Tsubouchi. He recommended a reprimand on 1 of 2 complaints filed by Councillor Evelina MacEachern.
Era Banner reported that Tsubouchi commented;
“You’ve got a new mayor and council and they have their own direction and ideas with respect to this,” he said. “It actually dovetails with some of the things that I have going on right now. So it sort of works out well for me.”
In spite of the fact that Tsubouchi ruled only on the Buck complaint by other members of Council, he has been paid a monthly retainer the entire period of his contract.
During the election campaign, the code of conduct and integrity commissioner position was criticized by all four mayoral contenders.
Posted by auroracitizen on December 21, 2010
An Open Letter to Councillor Wendy Gaertner.
After witnessing first hand your display at the Aurora Council meeting on Tuesday Dec 14 2010, I had to write. You have demonstrated to me a lack of respect to Aurorans, to Aurora Council, and to the oath you swore. You’re alone in this behaviour, and you present yourself in a less than professional manner.
At this meeting I saw that you handed a letter, prepared in advance, to a representative of The Auroran. I can only conclude from this action that it was your pre-meditated intent to be disruptive and drive a wedge. This type of behaviour serves no good to the town, nor to the people you swore to professionally and respectfully represent. In my opinion, you weren’t being truthful to Aurorans when you campaigned on the promise of serving the people of the community.
Our new council is going to make some process and procedural mistakes as they find their way. Growing pains are understandable and are bound to occur with a new council, however these will quickly fade as council develops their political acumen and we all move forward. I’m certain every reasonable person in town can accept this. What I believe is important to most Aurorans, is that our new council is making every effort to restore good, civil, accountable government to Aurora. Why you remain stuck in the past and focused on the negative, frankly escapes me.
You are opposed to, and showed no interest in taking part in the off-site meeting. What could possibly be your objection to taking part in learning sessions and a key team-building exercise? Teamwork was something sorrowfully lacking on Aurora Council for the last 4 years. Surely you cannot believe that;
- You already know all there is to know about municipal politics?
- Teamwork adds no value to a functioning council?
- You have nothing to learn about your new teammates?
An off-site meeting gives all those who attend the chance to get to know each other better, share ideas, share best practices, grow a deeper understanding and appreciation of your co-councillors, and to learn what issues are important to them. Like a sports team on a road trip, getting away as a group creates a bond that just doesn’t occur when everyone stays in town, and heads for the door as soon as the structured meeting ends. It was encouraging to see that most of the other councillors saw the obvious benefit in attending.
The recent election results showed that the majority of Aurorans want true change. We’re tired of the infighting. We don’t want a fractured council anymore. Why aren’t you listening? Have you no interest in being part of something better?
In my opinion, I believe you may be getting bad advice.
Who stands to benefit by having you act this way? I can tell you that it’s not the taxpayers of Aurora, so who then, are you truly representing? I can’t imagine that anyone could maintain this level of bitterness and vindictiveness without having it create a lasting negative affect on their outlook, their judgment, or their health, for that matter.
Councillor Gaertner, I believe you have no intention of honouring your oath or commitment to the taxpayers of Aurora. And as such, I respectfully ask you to resign your post as councillor. It appears to me that you no longer have the attitude, energy, direction, and focus required to carry out your sworn duties in a positive, fair, and respectful manner.