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Mar 18, 2013

So Much for the Finality Clause!

By Donald B. Johnston

When Justice Charles Hackland released his judgment in Magder v. Ford on November 26, 2012, declaring the seat of Mayor Rob Ford to be vacant for contravention of Ontario’s Municipal Conflict of Interest Act (“MCIA”), it set off a maelstrom of controversy. Rob Ford vowed to appeal all the way to the Supreme Court of Canada. Many saw this as simply bravado on the part of Ford that would not go very far given the existence of s. 11(2) of the MCIA which expressly provides that “[t]he Divisional Court may give any judgment that ought to have been pronounced, in which case its decision is final.”

In fact, the Ontario Court of Appeal has pronounced several times that “final” in s. 11(2) actually does mean final. In Mondoux v. Tuchenhagen the Ontario Court of Appeal wrote,

We are bound by the decisions of this court that ‘final’ in s. 11(2) means final, and that no appeal lies to this court from the Divisional Court under s. 11 of the Municipal Conflict of Interest Act. Indeed, we agree with that position. The legislature has chosen in s. 11(2) to permit a member only an appeal to the Divisional Court, but no further. Therefore, regardless of the possible merits of the appeal itself, we are prevented from hearing it by the legislation itself.

However, an interesting article in the Law Times (January 7, 2013) posited that the Divisional Court was not necessarily the end of the line for appeals in municipal conflict of interest matters in view of ss. 38 and 40 of the Supreme Court Act. These sections provide for the ability to essentially leapfrog over the highest appellate court of a province and proceed directly to the Supreme Court. Several hurdles must be crossed and leave to appeal must be applied for and obtained, but it is theoretically possible for an appeal to be taken to the Supreme Court from the Ontario Divisional Court under the MCIA notwithstanding the “finality” clause.

It is likely? In the more than 40 years that the Ontario legislation has been in place, no case under the MCIA has been appealed to and heard by the Supreme Court (although two municipal conflict of interest cases from other jurisdictions have ended up in the Supreme Court).

On January 25, 2013, the Ontario Divisional Court overturned Justice Hackland’s ruling - Ford could remain in office. Now the shoe is on the other foot. Paul Magder, the elector who brought the initial proceedings against Ford, indicated through his legal counsel’s press release that the Divisional Court ruling contained errors of law and that leave to appeal to the Supreme Court would be sought. The possibility now exists that the next municipal elections will occur before the Magder v. Ford saga is finally concluded.

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