Jackson v. Vaughan (City) et al., (2010) 259 O.A.C. 84 (CA)

• Judge: Feldman, Cronk and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 23, 2009
• Jurisdiction: Ontario
• Citations: (2010), 259 O.A.C. 84 (CA);2010 ONCA 118

Jackson v. Vaughan (2010), 259 O.A.C. 84 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. FE.065

Linda D. Jackson (appellant) v. The Corporation of the City of Vaughan, LECG Canada Ltd., Ken Froese and Timothy Wilkin (respondents)

(C50275; 2010 ONCA 118)

Indexed As: Jackson v. Vaughan (City) et al.

Ontario Court of Appeal

Feldman, Cronk and Gillese, JJ.A.

February 12, 2010.

Summary:

Jackson was elected as the mayor of the City of Vaughan. Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances. The City declined. The residents appealed.

The Ontario Court of Justice directed the City to appoint an auditor to conduct a compliance audit. Following the audit, the auditor was to report the finding to council. The resulting audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act. The City's council approved the laying of charges against Jackson and retained a prosecutor. Jackson applied under s. 273 of the Municipal Act, and pursuant to ss. 24(1) and 52 of the Charter, to quash the authorizing bylaw and a confirming bylaw.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. 595, refused to quash the bylaws. Jackson appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1206.5

Security of the person - Right to psychological integrity (incl. dignity, reputation etc.) - Jackson was elected as the mayor of the City of Vaughan - Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances - The City appointed an auditor - The audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act - The City's council approved the laying of charges against Jackson and retained a prosecutor - Jackson applied to quash the authorizing bylaw - Jackson asserted, inter alia, that if she was convicted, she might forfeit the office to which she was elected and be deemed ineligible to be elected or appointed to any office until the next regular election had taken place - Such consequences might potentially have a serious and profound effect on her psychological integrity, thus breaching her s. 7 Charter right to security of the person - The Ontario Court of Appeal affirmed the dismissal of the application - It was "plain" that the audit/prosecution process, which was aimed at securing compliance with the rules concerning election campaign finances, was regulatory in nature rather than criminal or quasi-criminal - If Jackson was convicted, she might be fined and/or removed from office - There was no risk of incarceration - Further, the interests of the candidate were not understood in law to constitute a protected aspect of "life, liberty and security of the person" within the meaning of s. 7 - Loss of the ability to hold elected office for a term might trigger stress, anxiety and stigma, but it did not rise to the level of "serious and profound" state-imposed psychological harm necessary to engage protection under s. 7 - See paragraph 40.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Jackson was elected as the mayor of the City of Vaughan - Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances - The City appointed an auditor - The audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act - The City's council approved the laying of charges against Jackson - Jackson applied to quash the authorizing bylaw, asserting, inter alia, that the powers of an auditor under s. 81(3), which required a candidate in a municipal election to participate in a compliance audit, breached her s. 7 Charter right to be secure against self-incrimination - The Ontario Court of Appeal affirmed the rejection of the assertion - By participating in the election, Jackson voluntarily subjected herself to the Act and she had no reasonable expectation of confidentiality concerning any of the matters required to be reported and could not assert the right against self-incrimination to avoid providing information to the auditor - Further, the information was not collected at a time when the relationship between Jackson and the City was adversarial in nature - The information was statutorily compelled and provided in response to a defined regulatory requirement - That requirement was not coercive in nature as it arose after Jackson chose to participate in the election - In such circumstances, it did not appear that the principle against self-incrimination was engaged - Finally, the court did not accept the underlying premise that s. 81 gave investigative powers to the auditors and delegated to them the power to determine whether she should be prosecuted - The purpose of an audit was fact finding, not determining penal liability - Where the audit report indicated that there was an apparent contravention, prosecution was not automatic - It was the municipal council that had to determine whether to commence legal proceedings - See paragraphs 41 to 44.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - The Ontario Court of Appeal rejected an assertion that s. 81 of the Municipal Elections Act which dealt with compliance audits was impermissibly vague - A law would not be struck down for vagueness simply because reasonable people might disagree as to its application to particular facts - A lack of precision would not defeat a law which provided a degree of clarity capable of supporting intelligible debate - When the words of s. 81 were given their ordinary meaning and read grammatically, in the context of the legislation as a whole, including ss. 66 to 82.1, they delineated boundaries for actions in respect of campaign finances that were neither vague nor arbitrary - Instead, they set out the boundaries of permissible and impermissible campaign finance activities which gave fair notice and operated to limit enforcement discretion - As well, administrative law principles limited council's enforcement discretion - Ultimately, whether a candidate had contravened the Act was a determination made by a judge, thereby ensuring judicial oversight of the auditor's conclusion of an apparent contravention - In short, there was a sufficient basis within the legislation for legal debate and reasoned legal analysis, leading to a coherent judicial interpretation of s. 81 - See paragraphs 24 to 37.

Civil Rights - Topic 3189

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to remain silent and protection against self-incrimination - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3189

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to remain silent and protection against self-incrimination - Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances - The City appointed an auditor - The audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act - The City's council approved the laying of charges against Jackson - Jackson applied to quash the authorizing bylaw, asserting, inter alia, that the powers of an auditor under s. 81(3), which required a candidate in a municipal election to participate in a compliance audit, breached her s. 7 Charter right to be secure against self-incrimination - The Ontario Court of Appeal affirmed a finding that once council decided to commence legal proceedings, an adversarial relationship between her and the municipality came into being - The use of the auditor's powers respecting Jackson thereafter would violate her s. 7 rights - Consequently, once the decision to prosecute was made, the auditor's mandate was exhausted, leaving the auditor without further authority to proceed - See paragraphs 45 and 46.

Elections - Topic 5040

Corrupt and illegal practices - Excessive campaign spending - General - [See Civil Rights - Topic 1206.5 , Civil Rights - Topic 1508 , Civil Rights - Topic 3107 and second Civil Rights - Topic 3189 ].

Municipal Law - Topic 3848

Bylaws - Quashing bylaws - Grounds for judicial interference - Uncertainty or vagueness [See Civil Rights - Topic 3107 ].

Municipal Law - Topic 3851

Bylaws - Quashing bylaws - Grounds for judicial interference - Unlawful subdelegation - Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances - The City appointed an auditor - The audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act - The City's council approved the laying of charges against Jackson and retained outside counsel (Wilkin) to prosecute - Jackson asserted that the authorizing bylaw was ultra vires because Wilkin's appointment constituted a wholesale and unlawful delegation of authority - Jackson asserted that the bylaw gave Wilkin unfettered discretion to determine what charges to lay and how to handle them but the Act required that those decisions were to be made by council itself - The Ontario Court of Appeal rejected the assertions - The Act did not require council to decide what charges to lay and how to handle them - Section 81(10) gave council the power to commence a legal proceeding against a candidate for any apparent contravention of the Act relating to election campaign finances - Based on the compliance audit report, council exercised that power - There was a difference between making a decision and implementing that decision - The City could only act through its agents - Council gave effect to its decision to prosecute by retaining outside counsel - Not only was this a reasonable delegation, it was necessary as it would have been difficult, if not inappropriate, for any City employee to act as the prosecutor - The authorizing bylaw did not give Wilkin unfettered discretion - In the resolution that the bylaw ratified, council imposed conditions within which Wilkin had to act - Wilkin was given discretion respecting specified matters, but those powers did nothing more than give him the kind of prosecutorial discretion normally exercised by municipal officials who prosecuted infractions of municipal bylaws - It was possible that delegation was sufficiently circumscribed that it was permissible at common law - In any event, it was authorized by ss. 23.1 and 23.3(2) of the Municipal Act - See paragraphs 47 to 61.

Municipal Law - Topic 3851

Bylaws - Quashing bylaws - Grounds for judicial interference - Unlawful subdelegation - Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances - The City appointed an auditor - The audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act - The City's council approved the laying of charges against Jackson and retained outside counsel (Wilkin) to conduct the prosecution - Jackson applied to quash the authorizing bylaw, asserting, inter alia, that the prosecutorial powers delegated to Wilkin were quasi-judicial in nature and that s. 23.2 of the Municipal Act precluded their delegation - The Ontario Court of Appeal rejected the assertion - The concept of prosecutorial discretion being the exercise of quasi-judicial power was dependent on the person exercising the prosecutorial discretion being clothed with the constitutional powers inherent in the Attorney General's office - Wilkin did not stand clothed with the constitutional authority of the Attorney General - Accordingly, council made no delegation of quasi-judicial powers and s. 23.2 of the Municipal Act did not apply - See paragraphs 62 to 64.

Municipal Law - Topic 3851

Bylaws - Quashing bylaws - Grounds for judicial interference - Unlawful subdelegation - Two residents of the City applied under ss. 81(1) and 81(2) of the Municipal Elections Act for a compliance audit of Jackson's election campaign finances - The City appointed an auditor - The audit identified numerous "apparent contraventions" of the election campaign financing rules under the Act - The City's council approved the laying of charges against Jackson and retained outside counsel (Wilkin) to conduct the prosecution - Jackson applied to quash the authorizing bylaw, asserting, inter alia, that there had been an unlawful delegation of power to Wilkin - The Ontario Court of Appeal stated that it might be that Jackson's argument was, at least in part, directed at the question of oversight in that council overstepped the boundaries of permissible delegation given the absence of a requirement that Wilkin report back - The court rejected the argument - Returning to Council for instruction was permissible but unnecessary since Wilkin had to operate within the constraints established by council's resolution - Additionally, there were two other forms of oversight - First, s. 23.1(2) of the Municipal Act listed six rules that applied to a bylaw delegating any of a municipality's powers or duties - Included in those rules was the power of a municipality to revoke the delegation at any time and without notice - Consequently, council had the power to revoke Wilkin's appointment at any time - This meant that council retained an overriding oversight power - Second, the court hearing the prosecution had the power to prevent prosecutorial abuse - Finally, council's exercise of power in deciding whether to commence legal proceedings for any apparent contraventions of the Act had to be made in accordance with the ordinary principles of administrative law and was amenable to judicial review - See paragraphs 64 to 66.

Cases Noticed:

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 19, footnote 1].

Mastroguiseppe v. Vaughan (City), 2008 ONCJ 763, refd to. [para. 28, footnote 3].

Cochrane v. Ontario (Attorney General) (2008), 242 O.A.C. 192; 92 O.R.(3d) 321 (C.A.), refd to. [para. 29, footnote 4].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1, refd to. [para. 40].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 40].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 42].

R. v. Bridge - see Bridge v. R.

Bridge v. R., [1953] 1 S.C.R. 8, refd to. [para. 54].

R. v. Joy Oil Co., [1964] 1 O.R. 119 (C.A.), refd to. [para. 56].

Adult Entertainment Association of Canada et al. v. Ottawa (City) (2007), 224 O.A.C. 267; 33 M.P.L.R.(4th) 1 (C.A.), refd to. [para. 57].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275, refd to. [para. 63, footnote 12].

Kvello et al. v. Miazga et al. (2009), 395 N.R. 115; 337 Sask. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 63, footnote 12].

Little v. Ottawa (City) et al., [2004] O.T.C. Uned. 447; 49 M.P.L.R.(3d) 115 (Sup. Ct.), refd to. [para. 65, footnote 16].

Statutes Noticed:

Municipal Act, S.O. 2001, c. 25, sect. 23.1, sect. 23.2 [para. 59, Schedule B]; sect. 23.3 [Schedule B].

Municipal Elections Act, S.O. 1996, c. 32, sect. 81 [Schedule A].

Authors and Works Noticed:

Auerback, Stephen, and Mascarin, John, The Annotated Municipal Act (2nd Ed. 1990) (2009 Looseleaf Update), vol. 1, p. MA2-135 [para. 60, footnote 10].

Counsel:

Morris Manning, Q.C., for the appellant;

Robert Rueter and Sara J. Erskine, for the respondents, LECG Canada Ltd. and Ken Froese;

Ian J. Lord and Raivo Uukkivi, for the respondents, the Corporation of the City of Vaughan and Timothy Wilkin.

This appeal was heard on September 23, 2009, by Feldman, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Gillese, J.A., on February 12, 2010.