HomeMy WebLinkAbout2021-04-30_Minutes_Special_Executive_CommitteeToronto and Region
Conservation
Authority
Special Meeting of the Executive Committee was held via videoconference, on Friday,
April 30, 2021, pursuant to section C.12, of the TRCA's Board of Directors Administrative
By -Law. The Chair Jennifer Innis, called the meeting to order at 12:28 p.m.
PRESENT
Jennifer Innis
Chair
Jack Heath
Vice -Chair
Ronald Chopowick
Member
Dipika Damerla
Member
Joanne Dies
Member
Jennifer Drake
Member
Xiao Han
Member
Gordon Highet
Member
Linda Jackson
Member
Maria Kelleher
Member
Anthony Perruzza
Member
ABSENT
Paula Fletcher Member
The Chair recited the Acknowledgement of Indigenous Territory.
CLOSED SESSION
RES.#B36/21 - CLOSED SESSION
Moved by: Linda Jackson
Seconded by: Jennifer Drake
THAT pursuant to subsection C.4.(2)(b) of TRCA's Board of Directors Administrative By -
Law, the Executive Committee move into the closed session to discuss item 10.1 —
Results of the Investigation of the Complaint under the Board of Directors Code of
Conduct as the subject matter consists of personal matters about an identifiable
individual, including staff of TRCA.
CARRIED
RES41337/21 - RISE AND REPORT
Moved by: Linda Jackson
Seconded by: Dipika Damerla
THAT the Executive Committee reconvene and report from closed session.
CARRIED
Section II — Items for Executive Action
RES.#B38/21 - RESULTS OF THE INVESTIGATION OF THE COMPLAINT UNDER
THE BOARD OF DIRECTORS CODE OF CONDUCT
A report on the results of an investigation of the formal complaint under
the Board of Directors Code of Conduct against Toronto and Region
Conservation Authority's (TRCA) Board of Directors Member, Regional
Councillor Kevin Ashe.
Moved by: Linda Jackson
Seconded by: Dipika Damerla
THAT confidential item 10.1 — Results of the Investigation of the Complaint under the
Board of Directors Code of Conduct be approved.
RES.#B39/21 - AMENDMENT TO THE MAIN MOTION
Moved by: Linda Jackson
Seconded by: Jack Heath
THAT the amendment to item 10.1 be approved.
THE AMENDMENT WAS:
CARRIED
THE RESULTANT MOTION READS AS FOLLOWS:
THAT this report be received;
THAT TRCA staff notify the Regional Municipality of Durham of the results of the
investigation;
AND FURTHER THAT the main motion, as amended and the closed session report
together with the report on investigation be voluntarily made public after approval at the
April 30, 2021 Special Executive Committee meeting.
CARRIED
BACKGROUND
Under subsection B16.2 of the Board of Directors Administrative By -Law, a member of the
public may submit a formal complaint against a Board Member, who has allegedly contravened
applicable by-laws, policies and legislation in the course of their duties. The Executive
Committee is responsible for responding to complaints, investigation of the complaint, and
determining the appropriate action(s) to be taken.
On February 25, 2021 TRCA's Chief Executive Officer received a formal Code of Conduct
complaint against TRCA's Board Member, Durham's Regional Councillor Kevin Ashe, alleging
contravention of section 2(d) of the Code of Conduct for Board Members.
The Complainant alleged that due to Councillor's pre-existing support of the Durham Live lands
(also known as 1802 Bayly Street in the City of Pickering) development, he was not able to
approach TRCA discussions related to the matter "with an open mind, with consideration for the
organization as a whole" (clause 2(d) of the Code of Conduct for Board members).
The Executive Committee members reviewed the complaint at the March 5, 2021 meeting and
directed TRCA staff to contract an external impartial investigator to investigate the complaint.
Furthermore, Executive Committee members raised concerns with the current Board of
Directors Administrative By -Law for investigations that involves Board Members investigating
each other on Code of Conduct complaints. Executive Committee Members voiced their
preference for a third party impartial investigator.
RATIONALE
Pursuant to the March 5 decision of the Executive Committee, TRCA reached out to several
lawyers who provide integrity commissioner services in accordance with limited tendering rules
under TRCA's Procurement policy. As TRCA has a preexisting vendor of record arrangement
for provision of legal services with Fasken, TRCA staff contracted services of Mr. Guy Giorno, a
lawyer with the law firm, to act as a third -party investigator in investigating the complaint.
During the investigation Mr. Giorno reviewed the complaint which mentioned 2(d) of the Code of
Conduct and determined that the gist of the Complainant's concerns also involved section 2(e)
and section 9 of the Code. The investigator then conducted separate interviews with the
Complainant and the Respondent (Regional Councillor Ashe). During the interviews, both
parties provided additional information and further argued their positions. Following the
interviews and upon a detailed analysis of the allegations against the Board of Directors Code of
Conduct, the investigator concluded that Regional Councillor Ashe did not contravene the Code
of Conduct for Board Members.
The complete report of investigation is available as Attachment 1 to this report.
Relationship to Building the Living City, the TRCA 2013-2022 Strategic Plan
This report supports the following strategy set forth in the TRCA 2013-2022 Strategic Plan:
Strategy 7 — Build partnerships and new business models
FINANCIAL DETAILS
Funds to cover the cost of the investigation will be allocated from the Corporate Legal account
(account code 012-30).
DETAILS OF WORK TO BE DONE
The Complainant and Regional Councillor Ashe will be notified of the outcome of the
investigation. TRCA staff will further evaluate a need to conduct a refresher training related to
Board Members' compliance with the Code.
Report prepared by: Alisa Mahrova, extension 5382, Barbara Montgomery, extension
5682
Emails: alisa.mahrova(&trca.ca; barbara.montgomerv(&trca.ca
For Information contact: Barbara Montgomery, extension 5682
Emails: barbara.montgomerv(&trca.ca
Date: April 22, 2021
Attachments: 1
Attachment 1: Report on Investigation
GUY GIORNO, INVESTIGATOR FOR EXECUTIVE COMMITTEE,
TORONTO AND REGION CONSERVATION AUTHORITY
REPORT ON INVESTIGATION
TABLE OF CONTENTS
Investigation....................................................................................................................
3
Summary.........................................................................................................................
3
Background.....................................................................................................................
3
Durham Live and the Minister's Zoning Order.............................................................
5
PermitApplications......................................................................................................
9
Respondent's Position on Durham Live.....................................................................12
ProcessFollowed..........................................................................................................14
Postions of the Parties..................................................................................................
16
Findingsof Fact.............................................................................................................17
Issuesand Analysis.......................................................................................................18
Personal Interest (Conflict of Interest).......................................................................18
Prejudgment and Previously Expressed Opinion.......................................................
19
Fiduciary Duty / Best Interests of The Authority.........................................................
20
Interests of Two Public Bodies: Not a Disqualifying Conflict......................................20
Hearing Procedure and Fairness...............................................................................21
Issue A: Is the Complaint Frivolous and Vexatious?............................................22
Issue B: Did the Respondent Fail to Approach Matters with an Open Mind,
Contrary to section 2(d)?...........................................................................................
22
Issue C: Did the Respondent Fail to Uphold His Fiduciary Duty to Act in the Best
Interests of TRCA, Contrary to section 2(e)?.............................................................23
Issue D: Did the Respondent Contravene section 9, which Supports TRCA in
Conducting Procedurally Fair Hearings?...................................................................23
Conclusion....................................................................................................................
24
3
INVESTIGATION
1. This report concludes an investigation into a February 25 complaint against TRCA
Board Member Kevin Ashe.
2. Emma Cunningham (Complainant) alleges that Kevin Ashe (Respondent)
contravened the Code of Conduct of Board Members' by failing to maintain an open mind
with respect to TRCA Board consideration of the Durham Live proposal.
3. 1 was appointed as a third -party investigator pursuant to a March 5 decision of the
Executive Committee.2
SUMMARY
4. 1 find that the Respondent did not contravene the Code of Conduct.
5. While it is understandable that the Respondent's public comments, including social
media activity, raised questions about his open mindedness, his conduct at the hearing
confirms that in fact he approached the matter with an open mind and was capable of
persuasion. The legal standard set by the Supreme Court of Canada was satisfied.
6. Especially when a hearing is conducted, a Board Member should consider that
external discussion of the subject of the hearing, including social media commentary,
might compromise the apparent fairness of a hearing and create a risk of contravention
of section 9 of the Code of Conduct.
BACKGROUND
7. The Board of Directors Administrative By -Law requires that all Board Members be
"guided by and adhere to the Code of Conduct ..."3
Board of Directors Administrative By -Law (Policy No. CG -1.01-P), Appendix 1, Code of Conduct for
Board Members.
2 1 note that I am also the Integrity Commissioner for the Regional Municipality of Durham, and the Integrity
Commissioner for the City of Pickering. Mr. Ashe sits on both the Regional Council and the City Council.
However, a municipal integrity commissioner exercises functions independently, and does not take
municipal direction in discharging investigative functions.
s Board of Directors Administrative By -Law, note 1, section B-1(4). See also section B-16, which reiterates
that Board members must respect and adhere to all applicable by-laws and policies, including the Code
of Conduct, and permits the TRCA to take reasonable measures to enforce them.
0
8. The complaint specifically alleges that the Respondent contravened section 2(d)
of the Code of Conduct. After reviewing the complaint, I determined that the gist of the
Complainant's concerns also involves sections 2(e) and 9 of the Code.
9. The following are the relevant portions of section 2 of the Code of Conduct:'
It is expected that Board Memberslsl adhere to a code of conduct that:
(d) approaches all TRCAIeI issues with an open mind, with consideration for the
organization as a whole;
(e) while Board Members may have interests contrary to TRCA interests, when acting as
Board Members they shall adhere to their fiduciary duty to consider TRCA interests
and issues at hand above other interests and issues ...
10. The reference to fiduciary duty in section 2(e) of the Code of Conduct relates to
section B-1(4) of the Administrative By -Law, which states that, "Board Members owe a
fiduciary duty to TRCA and not their Member Municipalities, when acting as a Board
Member of the organization (Appendix 11)." Appendix 11 is 20 Questions Directors of
Not -For -Profit Organizations Should Ask About Fiduciary Duty, a 26 -page publication of
the Chartered Professional Accountants of Canada, authored by Jane Burke -Robertson.
11. Section 9 of the Code, titled "Apprehension of Bias," provides as follows:
As decisions makers [sic], no Board Member shall enter into discussions with any party
outside of TRCA that may result in either a real or perceived bias of their position on matters
that may come before staff and/or the Board of Directors.m
Executive Committee Members may act as a decision-making tribunal in the form of Hearing
Board on matters related to Regulations issued under the Conservation Authorities Act, and
in particular Section 28 (1) (or section 28.1 when in force). Executive Committee Members
shall not enter into discussions outside the Hearing on such matters that may result in either
a real or perceived bias of their position on the matters underthe Hearing, with the exception
of the TRCA solicitor. The Chaidel of the Executive Committee may receive a briefing from
TRCA staff on procedural matters prior to the Hearing Board convening.
' The Board of Directors Administrative By -Law, note 1, italicizes its defined terms everywhere they
appear. Because several of those terms appear both in the body of this report and in quotations from
the By -Law, for consistency and to avoid confusion, the italics have been dropped from the quotations.
However, the first time a defined term appears in a quotation, its definition will appear in an
accompanying footnote.
5 "Board Members' are defined in the Administrative By -Law as, "the individuals appointed to the
Authority's Board of Directors by the participating municipalities in TRCA's area of jurisdiction."
a "TRCA" is defined as, "The corporation of this conservation authority established under Section 5 of the
[Conservation Authorities Act)."
' "Board of Directors" is defined to mean, "the general membership, and as such is all of the Board
Members collectively appointed by participating municipalities as per the requirements of the
Conservation Authorities Act."
8 "Chair" is defined as, "the Chairperson as referenced in the [Conservation Authorities Act] as elected by
the Board of Directors."
5
Executive Committee and Board of Directors Members shall not enter into discussions on
the merits of a Planning Act application and/or an appeal to the Local Planning Appeal
Tribunal (formerly Ontario Municipal Board) that may be associated with a current or likely
permit application under the Act, that may result in either a real or perceived bias of their
position on the permit application.
Durham Live and the Minister's Zoning Order
12. The Respondent sits on Pickering City Council as Regional Councillor—Ward 1.9
From December 1, 2018, to January 28, 2021, the Respondent was Deputy Mayor.10
13. Durham Live, initiated in 2014, is a proposed development in the City of Pickering,
in the area south of Highway 401 /GO line, north of Bayly Street, west of Church Street,
and east of the CN rail tracks." Squires Beach Road runs through the lands. On the their
east side and part of their north side, the lands are adjacent to the Town of Ajax.
14. The area is environmentally sensitive. It contains three minor tributaries of Duffins
Creek, and forest and wetland that form part of a Provincially Significant Wetland, the
Lower Duffins Creek Wetland Complex. 12
15. The City of Pickering describes the proposal as follows:
Durham Live will become the premier entertainment and tourism district east of Yonge
Street, and one of Ontario's top destinations for fun and excitement.
Anchored by a resort casino and 5 -star hotel, this unique destination will also include a
boutique hotel, convention centre, amphitheatre, restaurants, cinemas, an indoor water
park, performance venues, an office tower, and film studios.
This landmark project, located at the northwest corner of Church and Bayly Streets, will
boast a dynamic mix of excitement, culture, nightlife, cuisine, and adventure that will cater
to every whim and indulgence.13
16. On May 13, 2020, Pickering City Council adopted a resolution14 directing the
Respondent, as Deputy Mayor, to ask the Minister of Municipal Affairs and Housing to
make an order under section 47 of the Planning Act (Minister's Zoning Order or
s Mr. Ashe was elected as City Councillor -Ward 1 in 2003, 2010, and 2014. He was appointed Regional
Councillor -Ward 1 on November 2, 2015, to fill the vacancy caused by the resignation of
Jennifer O'Connell upon her election as Member of Parliament for Pickering -Uxbridge. He was elected
Regional Councillor -Ward 1 in 2018.
t0 City of Pickering Policy ADM 045 provides for the Regional Councillor -Ward 1 to be appointed Deputy
Mayor for the first 16 months of the term. Resolution# 259/20, adopted March 18, 2020, effectively
extended the Respondent's appointment for the remainder of the term. The Respondent resigned as
Deputy Mayor on January 28, 2021.
11 These are the tracks to the west of Squires Beach Road.
12 City of Pickering, Information Report to Planning & Development Committee, Report 04-14
(April 7, 2014), p. 1.
i3 City of Pickering, "Durham Live," httos://www.i)ickering.ca/en/city-hall/durham-live.asi)x
t4 Resolution #293/20, as amended by Resolution #294/20 and Resolution #295/20.
0
MZO).15 The resolution asked, "given the economic stimulus of this project that Minister
Clark be requested to expedite this Order."16 The vote included the Respondent, and was
unanimous.17
17. On May 25, the Respondent sent a letter to the Minister, requesting an MZO
pursuant to Council's unanimous direction. The letter included a description of the subject
lands. It also attached a proposed, draft text of the MZO.
18. The letter read, in part, as follows:
The subject property is approximately 226.4 acres in size, and is located south of Highway
401, north of Bayly Street, west of Church Street and extends west of Squires Beach Road.
The subject property is the site of Durham Live, a critically important development in the
City which represents the City's (and Region's) present single most important economic
development driver. It is because of the utmost importance of Durham Live to the City that
we make this request of you.
The first phase of construction of Durham Live is currently underway, with its anchor tenant,
Pickering Casino Resort, substantially complete and ready to open its doors once COVID-
19 conditions permit. Durham Live is poised to be one of the region's largest employers
(10,000 or more jobs) and certainly its primary tourist destination. At a time when the
Pickering Nuclear Generating Station is winding down its operations, and General Motors
has ceased vehicle production in Oshawa, Durham Region desperately needs something
of this size and scale to drive its economic recovery. Durham Live can be that driver.
Durham Live seeks to raise the City's profile as the pre-eminent municipality in Durham. A
key part of the overall Durham Live development is the introduction of a range of hospitality
and entertainment uses to complement the casino, including film studios. An application for
the film studios (phase 1), is currently under review with City staff. This film studio will have
some of the largest single sound stages in North America and is slated to open in the latter
half of 2021.
Durham Live is, however, much more than just the casino and film studio and the owners
are anxious to maintain momentum. In fact, Durham Live is ideally positioned to be shovel
ready for the economic recovery kick-start which the City, Region and Province must now
plan for. The success of Durham Live depends on the inclusion of synergistic and
complementary uses to the Casino Resort. The ability of Durham Live to fulfill its planned
function as a major tourism hub depends on its ability to provide certainty to prospective
tenants that they can build and open with as little delay as possible.
With its large available vacant parcels so close to Highway 401, Durham Live is ideally
positioned to attract a specific very large employment user interested in the portion of the
site west of Squires Beach Road. This is an approximately 70 to 85 -acre site that the user
would develop for an approximately 850,000 to 4 million square foot distribution centre and
production facility ("Project Lonestar").
t5 The term "Minister's Zoning Order' does not actually appear in the Planning Act, but is found in several
regulations, including 0. Reg. 543/06 through 0. Reg. 547/06. It is commonly used by the Ministry,
municipalities, and stakeholders.
5 The Respondent provided considerable background outlining the rationale behind Pickering's request
for the MZO for the Durham Live site. I have considered the background information, but not included it
in this report. It is not necessary for this investigation to assess the merits of the City's request. It is
sufficient for me to find that requesting an MZO was a valid, lawfully -available planning tool that Pickering
City Council had the right to pursue.
t7 Mayor David Ryan was absent, so the unanimous vote was 6-0 in favour.
7
Project Lonestar alone will bring significant economic benefits to the City of Pickering and
Durham Region. The investment in the land, buildings, infrastructure, equipment and
training alone is estimated to exceed C$100 million. Development charges in the range of
$20 to 80 million are anticipated, along with new property tax assessment in the range of
$5 to 20 million annually.
Durham Live is precisely the type of project which supports both the Provincial Policy
Statement (2020) and a Place to Grow: The Growth Plan for the Greater Golden Horseshoe
(2019). In order to bring the remainder of Durham Live online much faster and be shovel
ready very soon, the City of Pickering is requesting that you exercise your authority and
enact a MZO in accordance with the draft attached. The City is very pleased that the
Honourable Peter Bethlenfalvy, MPP and President of the Treasury Board supports this
request.
Yours truly
Kevin Ashe
Deputy Mayor & Regional Councillor, Ward 1
19. On September 30, Durham Regional Council adopted a resolution that effectively
supported the request for an MZO, on the condition that the owner of the lands make
certain commitments, including a commitment to build affordable housing .18 The
Respondent was present and voted in favour.
20. On October 23, 2020, the TRCA Board of Directors adopted a resolution opposing
commercial development on a portion of the lands covered by the request for an MZO.
The resolution read, in part:
THAT in recognition of our role as a watershed management and regulatory agency, and
stewards of lands within our jurisdiction, the Board of Directors indicate that they do not
support development within wetlands, particularly, Provincially Significant Wetlands;
THAT the Toronto and Region Conservation Authority (TRCA) acknowledge the subject
lands west of Squires Beach Road contain natural and hydrological features, including a
currently designated provincially significant wetland and significant wildlife habitat and that
those lands warrant protection ...19
21. The operative portion of the resolution authorized the CEO of TRCA to execute a
Memorandum of Agreement (with the landowner) to review a proposal for ecosystem
compensation to facilitate development of the Durham Live lands containing the
Provincially Significant Wetland, in the event the wetland is reclassified by the Ministry
of Natural Resources and Forestry. The Living Cities Policies of TRCA provide that:
It is the policy of TRCA ... c) To recommend that when development or infrastructure cannot
fully protect a natural feature or any other component of the Natural System, compensation
for lost ecosystem services be provided.20
t8 Regional Council, Minutes (September 30, 2020), Motion 277 as amended by Motion 279, pp. 26-28.
t9 RES.#A164/20, as amended by RES.#A165/20.
20 TRCA, The Living Cities Policies, pp. 88-89, policy 7.4.2.1.
0
22. Compensation would include making up the loss by replicating the same
ecosystem structure and associated level of ecosystem functions, and the land base, of
the natural areas proposed to be lost?'
23. It was the Ministry of Municipal Affairs and Housing that asked TRCA to enter into
an agreement with the landowner to consider an ecosystem compensation proposal
should the development be approved.
24. The Respondent moved the original October 23 motion, voted for the amendment,
and voted for the motion as amended. The vote was unanimous.
25. One week later, on October 30, the Minister made the MZO.22
26. The MZO confirmed the zoning of the subject lands, consisting of a Mixed Use
Major Tourist and Entertainment Zone, a Warehousing and Logistics Zone, a Mixed
Employment Zone, and a Natural Heritage and Open Space Zone.
27. The MZO did not recognize the Provincially Significant Wetlands west of Squires
Beach Road, and none of the Natural Heritage and Open Space Zone is west of Squires
Beach Road. The subject lands west of Squires Beach Road fall entirely in the
Warehousing and Logistics Zone.
28. Recently, the Minister of Municipal Affairs and Housing invited Pickering to request
an amendment that would remove from the MZO the lands west of Squires Beach Road, 24
and the City of Pickering has formally made this request 25 Nonetheless, the lands west
of Squires Beach Road were covered by the MZO at all times relevant to this report.
(Further, the MZO has not yet been amended.)
29. The only uses permitted in the Natural Heritage and Open Space Zone are the
protection, maintenance, enhancement and restoration of ecosystem forms and
functions, and drainage, flood control and erosion control .26 As noted, however, all of the
Natural Heritage and Open Space Zone is to the east of Squires Beach Road.
21 TRCA, Guideline for Determining Ecosystem Compensation (After the decision to compensate has been
made) (June 2018), pp. 10-15.
22 O. Reg. 607/20, Zoning Order - City of Pickering, Regional Municipality of Durham.
24 Hon. Steve Clark, letter to Mayor Dave Ryan (March 12, 2021): "Given this new development, I am
writing to ask if the City of Pickering would like me to consider amending the MZO to exclude the portion
of lands that would allow for the construction of the distribution centre ... As you know, every MZO made
on non -provincial land has been at the request of the local municipality, and if the City of Pickering no
longer wishes to have the MZO in place for the distribution centre, I will issue the mandatory public
notice to consult on amending the MZO which is a pre -condition to an amendment."
25 Resolution # 540/21 (March 22, 2021).
21 O. Reg. 607/20, subs. 6(2).
0
30. In the Warehousing and Logistics Zone, the permitted uses are: accessory uses,
buildings and structures; business support services; film studios; laboratories;
manufacturing plants; medical offices; offices; software development and processing
establishments; vehicle service facilities; and warehouses and distribution facilities.27
31. Permitted uses in the Mixed Use Major Tourist and Entertainment Zone are the
following: accessory uses, buildings and structures; apartment dwellings; art galleries;
banquet facilities; bake shops; botanical gardens; business support services; cafes;
cinemas; convenience stores; commercial fitness or recreation centres; commercial
schools; community centres; community gardens; curling rinks, tennis courts, bowling
alleys, or similar recreational facilities; day care centres; dry -cleaner's distribution centres;
financial institutions; home-based businesses; museums; nightclubs; parking lots; parking
garages; personal service establishments; places of amusement; private clubs;
restaurants; retail stores and accessory retail sales; service and repair shops; spas;
supermarkets; travel agencies; travel information centres; vehicle rental establishments;
and the uses described in subsection 5(1) of City of Pickering Zoning By-law 7404/15.28
32. Finally, permitted uses in the Mixed Employment Zone include any use permitted
in the Mixed Use Major Tourist and Entertainment Zone or the Warehousing and Logistics
Zone.3o
33. Each zone except the Natural Heritage and Open Space Zone is subject to zoning
requirements.31
Permit Applications
34. Six days after the MZO was made, the Minister of Finance introduced Bill 229, the
Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020. Schedule 6
of that Act amended the Conservation Authorities Act. On December 4, Schedule 6 itself
was amended by the Standing Committee on Finance and Economic Affairs. 32 One
committee amendment, discussed in more detail below, made it mandatory for
conservation authorities to grant permissions to developments authorized by MZOs. The
Bill, as amended, received Third Reading and Royal Assent, December 8.33
27 Ibid., subs. 4(2).
28 Ibid., subs. 3(3).
so Ibid., subs. 5(2).
8' Ibid., subss. 3(4), 4(3), 5(3).
32 The amendments were introduced, debated, and adopted all on the same day, December 4. By this
point, the committee had already conducted public hearings. There was no opportunity for public
comment on the amendments. They were adopted on a Friday, the amended Bill was reported to the
House the following Monday, and Third Reading and Royal Assent occurred Tuesday.
33 S.O. 2020, c. 36.
10
35. Most of the amendments were to come into force on proclamation,34 but one of the
changes contained in the December 4 committee amendments, the enactment of new
section 28.0.1 of the Conservation Authorities Act, came into effect on December 8.35
36. Section 28.0.1 requires a conservation authority to grant permission for a
development project that has been authorized by an MZO and is not located in the
Greenbelt Area .36
37. A conservation authority may attach conditions to the permission, including
conditions to mitigate effects on control of flooding, erosion, dynamic beaches or pollution
or the conservation of land, and any conditions or circumstances created by the
development project that, in the event of a natural hazard, might jeopardize health or
safety, or result in property damage or destruction.37 However, the authority shall not
refuse to grant permission.38
38. Because of the timing of its introduction, adoption as a committee amendment,
and passage as part of the amended Bill, section 28.0.1 was not the subject of comment
by conservation authorities, other stakeholders, and members of the public before it was
enacted. TRCA had opposed Schedule 6 of Bill 229, but its position was taken before
Conservation Authorities Act section 28.0.1 was added to the Bill. On November 13, the
Board of Directors had adopted a resolution that read, in part, as follows:
... the proposed amendments will diminish TRCA's ability to serve its municipal partners
and other watershed stakeholders in the protection from natural hazards and conserving
natural resources, primarily in the areas of planning, permitting and enforcement;
THEREFORE, LET IT BE RESOLVED THAT TRCA's Board of Directors request that the
Government of Ontario remove proposed amendments to the Conservation Authorities Act
and Planning Act in Bill 229 relating to planning, permitting and enforcement ...39
39. The Respondent was present for most of the November 13 Special Meeting, but
he left at 12:01 p.m. and was absent during debate and voting on the motion 40
40. In late December 2020, Pickering Developments (Squires) Inc. applied to the
TRCA for permission to interfere with a wetland to conduct borehole investigations on the
Provincially Significant Wetland located at 1802 Bayly Street, on part of the lands covered
by the MZO. The application was considered by the Executive Committee, February 5,
34 Several of these provisions were proclaimed in force February 2, 2021.
35 Ibid., Schad. 6, c. 36, subs. 29(2). Two additional provisions of Schedule 6 came into force on Royal
Assent, but these affected Acts other than the Conservation Authorities Act.
36 Conservation Authorities Act, subss. 28.0.1(1), (3).
37 Ibid., subs. 28.0.1(5).
38 Ibid., subs. 28.0.1(4).
39 RES.#A176/20 as amended by RES.#A177/20.
40 The only items on the agenda were an information presentation on Bill 229, and adoption of a resolution
setting out TRCA's position. The meeting lasted until 12:43 p.m.
11
pursuant to O. Reg. 166/06, which provides that the Executive Committee may exercise
TRCA's authority to grant permission to change or to interfere with a wetland.41
41. Section 28.0.1 of the Conservation Authorities Act obliged TRCA to grant
permission, but the Executive Committee restated TRCA's "opposition to development
within wetlands, particularly, Provincially Significant Wetlands," and, with the consent of
the applicant, attached seven conditions 42
42. The Respondent is not a member of the Executive Committee and did not take
part in its February 5 decision. On February 26, the Executive Committee decision was
not reported to the Board of Directors for action, but for information, and was "received .1,43
The Respondent was present and voted for the motion to receive44
43. Meanwhile, on or about February 16, Pickering Developments (Squires) Inc. had
applied for permission to site grade, temporarily or permanently to place, dump or remove
any material, originating on the site or elsewhere, and to interfere with a wetland to
remove a Provincially Significant Wetland located at 1802 Bayly Street.
44. On March 4, the Minister of Natural Resources and Forestry made a regulation,
O. Reg. 159/21, requiring TRCA to grant the permission by March 12 — eight days away.
45. As noted, under the new provision of the Conservation Authorities Act, TRCA was
required to grant permission, but it could attach conditions. TRCA staff proposed, in
addition to TRCA's standard 13 conditions, another 20 special conditions 45 The applicant
agreed to all 13 standard conditions, but wanted nine of the proposed special conditions
deleted, three modified, and three clarified .46
46. Subsection 28.0.1(7) of that Act provides that, before attaching conditions, an
authority shall give the applicant an opportunity to be heard by the authority. On March 12,
the TRCA Board of Directors held a hearing under subsection 28.0.1(7).
41 O. Reg. 166/06, Toronto and Region Conservation Authority. Regulation of Development, Interference
with Wetlands and Alterations to Shorelines and Watercourses, subs. 6(3).
41 Executive Committee Meeting #9/20 (February 5, 2021) RES.#B111/20 as amended by RES.#112/20.
43 Board of Directors Meeting (February 26, 2021), RES.#A36/21.
44 The Respondent was under the impression that he and the Board of Directors had voted on a
substantive motion to adopt an Executive Committee recommendation to grant permission on
conditions. However, the February 26 minutes indicate that the Executive Committee had already
exercised authority under O. Reg. 166/06, and the Board of Directors was merely receiving the
Executive Committee decision: "Moved by: Linda Jackson, Seconded by: Gino Rosati THAT item 13.4.1
— Application for Permits Pursuant to s.28.0.1 of the Conservation Authorities Act (Minister's Zoning
Orders) — Pickering Developments (Squires) Inc. be received. CARRIED."
41 TRCA Staff Report — Hearing under section 28.0.1(7) of the Conservation Authorities Act
(March 12, 2021 hearing), pp. 1050-1054.
as Ira T. Kagan, letter to TRCA (March 10, 2021).
12
47. At the end of the hearing, the Board of Directors voted "under duress" to grant the
permission, with conditions, Following the Board's in camera decision, TRCA issued a
public statement that read, in part, as follows:
Unequivocally, TRCA's Board of Directors and staff, using a science -based approach to
decision making and TRCA's Living City Policies, would have declined permission of this
permit had the Province not intervened. TRCA's Board of Directors continues to raise
substantial concerns with the Provincial directive, which appears to directly conflict with
TRCA's mandate to further the conservation, development, and management of natural
resources in watersheds within our jurisdiction, and its regulatory role regarding flooding
and interference with wetlands.47
48. The Respondent was present at the March 12 hearing, participated and voted.
Respondent's Position on Durham Live
49. As Complainant notes, the Respondent has made several previous, positive,
public comments about Durham Live.
50. At least since 2018, the Respondent has been active on social media, explaining
the merits of the Durham Live proposal (and often distinguishing it from alternatives in
Ajax). Examples of Tweets include:
Kevin Ashe @kevinashe1 • May 22, 2018
Exciting day at Pickering city hall as Great Canadian Gaming and Durham Live review
building plans at Site Plan Committee. Let's start digging
Kevin Ashe @kevinashe1 • Sep 14, 2018
while site work has started ... the actual building permit application for Durham Live Casino
was submitted today ... thousands of new jobs and millions in revenue @JohnMuttonl8
@CityofPickering @NurseNicoletta @TownOfAjax @PBethlenfalvy @progrght
@nancyhenry_ @SteveApost
51. Several of the Respondent's posts have directly or indirectly addressed Town of
Ajax opposition to Durham Live. For example:
Kevin Ashe @kevinashe1 • Jun 12, 2018
Breaking news.... Town of Ajax appeal of OMB decision on Durham Live. Dismissed.
Durham Live full steam ahead ... let's start building
Kevin Ashe @kevinashe1 • Jul 9, 2018
City of Pickering and Durham Live awarded $60,000 plus in cost from Town of Ajax for
Division Court loss #wastingtaxpayersmoney
47 TRCA, "Results of Today's Hearing to Grant Permission for Development at 1802 Bayly Street"
(March 12, 2021).
13
52. Sometimes he engaged directly with the Mayor of Ajax:
Shaun Collier #StayHomeAjax @mayor collier • Nov 30, 2020
Just in: Judicial review application filed to stop massive warehouse on Provincial Significant
Wetland in Pickering. #SaveTheDuffinsCreekWetland
Kevin Ashe @kevinashe1
Replying to @mayor collier
How did the last judicial review go about Durham Live?
4:05 PM • Nov 30, 2020 • Twitter for iPad
53. The letter requesting the MZO, signed by the Respondent, described the benefits
of the project as follows:
Durham Live is poised to be one of the region's largest employers (10,000 or more jobs)
and certainly its primary tourist destination. At a time when the Pickering Nuclear
Generating Station is winding down its operations, and General Motors has ceased vehicle
production in Oshawa, Durham Region desperately needs something of this size and scale
to drive its economic recovery. Durham Live can be that driver. Durham Live seeks to raise
the City's profile as the pre-eminent municipality in Durham....
Durham Live is, however, much more than just the casino and film studio and the owners
are anxious to maintain momentum. In fact, Durham Live is ideally positioned to be shovel
ready for the economic recovery kick-start which the City, Region and Province must now
plan for....
54. The day the MZO was made, the Respondent issued a supportive Tweet:
Kevin Ashe @kevinashe1 •Oct 30, 2020
Fantastic news. Durham Live MZO issued to realize full potential of Durham Live.
Thousands of jobs. Thank you @PBethlenfalvy @RodPhillips01 @fordnation
55. Shortly afterward, the Respondent spoke about the MZO to Global News:
The City of Pickering stands by its decision to order the MZO. Ashe says with the pandemic
delaying the opening of the casino, jobs are top of mind. And these projects will provide
3,000 of them.
"From our perspective, it's not really a choice between protecting the environment and
securing much-needed investment. I think both can happen," says Ashe.
"We'll be working hard with our partners to achieve that."48
56. The Complainant also drew attention to the Respondent's public support for
Bill 229, the omnibus budget bill that amended the Conservation Authorities Act.
Examples are the following exchanges with the Mayor of Ajax:
48 Frazer Snowdon, Global News, "Minister's zoning order could impact large swath of provincially
significant wetlands" (November 3, 2020).
14
Shaun Collier #StayHomeAjax @mayor collier • Nov 14, 2020
Please reach out to the following Ministers @JYakabuskiMPP @SteveClarkPC
@RodPhillips01 @JeffYurekMPP and ask them to remove Schedule 6 from Budget Bill 229.
This section of the Bill gives the power to the province to declassify this significant wetland.
Kevin Ashe @kevinashe1
Replying to @mayor collier @DrStevenMurphy and 4 others
The Province SHOULD have the power
5:04 PM • Nov 14, 2020 • Twitter for Phone
Shaun Collier #StayHomeAjax @mayor collier • Dec 6, 2020
Letter from Conservative Chair of TRCA's Board of Directors Jennifer Innis. "If you are not
worried, you are not paying attention..... I appeal to everyone reading this letter to contact
the Premier and your local MPP immediately to ask them to remove Schedule 6 from
Bill 229."
Kevin Ashe @kevinashe1
Replying to @mayor collier
I have reached out to my MPP tonight and indicted my support of the Budget Bill
7:46 PM • Dec 6, 2020 • Twitter for iPad
57. The November 14 Tweet was made before, and the December 6 Tweet was made
after, the committee amended the Bill to include the new section 28.0.1 of the
Conservation Authorities Act.
58. The Respondent's public position on Bill 229 was consistent with his voting at City
Council and Reginal Council meetings. On November 25, Durham Regional Council voted
24-5 to recommend to the Province that Schedule 6 be "removed" from Bill 229. The
Respondent voted against the motion 49 On December 14 (after the Bill had received
Royal Assent), Pickering City Council voted 4-2 to table a motion calling for the repeal of
Schedule 6 (which by now included section 28.0.1 of the Conservation Authorities Act).
The Respondent moved and voted in favour of the tabling motion.50
PROCESS FOLLOWED
59. Section 16 (Enforcement of By-law and Policies) of the Administrative By -Law
establishes a Formal Complaint Procedure covering complaints about adherence to
applicable bylaws and policies including the Code of Conduct. The Formal Complaint
Procedure provides for investigations but does not prescribe how they are to be
conducted. I opted to follow roughly the same fair and balanced process that I employ
during municipal integrity commissioner investigations, namely:
49 Regional Council, Minutes (November 25, 2020), Motion 341 as amended by Motion 342, pp. 6-9. The
Respondent voted against the amendment (which carried) and then voted against the motion as
amended.
51 City of Pickering, Council Meeting Minutes (December 14, 2020), Item 12.1, Resolution # 489/20.
15
• The Respondent is given an opportunity to respond, and then the Complainant
is given the opportunity to reply.
• Each party sees the other's submission.
• The investigation involves interviews of parties and any witnesses with
potentially relevant information, and reviews of documents.
The parties are interviewed separately. A party may be represented by legal
counsel but is not entitled to participate in the interview of anyone else.
• The process is conducted in confidence and I ask both parties to maintain its
confidentiality.
1 was assisted by a lawyer who works with me.
60. Upon review of the complaint, which mentioned 2(d) of the Code of Conduct,
I determined that the gist of the Complainant's concerns also involved section 2(e) and
section 9 of the Code.
61. 1 gave the Respondent notice of the complaint. In inviting him to respond, I asked
him to address section 2(d), section 2(e), and section 9 of the Code. I also wrote to the
Complainant, informing her that sections 2(d), 2(e) and 9 would be considered.
62. 1 shared the Response with the Complainant. She decided to hold her Reply,
pending our interview.
63. 1 conducted separate interviews of the Complainant and the Respondent. During
the interviews the parties provided information and further argued their positions.
64. The day following her interview, the Complainant sent me a brief Reply that
included additional material for me to consider.
65. 1 did invite each party to provide me with a list of individuals who might possess
relevant information. Unsurprisingly, given the clear-cut nature of the issues, neither
found it necessary to suggest witnesses to me. I spoke to other individuals only to confirm
background information about decision making.
66. After reviewing the submissions of the parties, conducting interviews, reviewing
documents, meeting recordings, and decision records, and then considering the relevant
legal authorities, I determined that I had enough information before me to conclude the
investigation and report to the Executive Committee.
67. The complaint was made February 25. This was prior to the Board of Directors
vote on February 26 to receive the Executive Committee's February 5 decision on
borehole permitting and conditions. This also was prior to the Board's March 12 hearing
and decision on the owner's second application. While the complaint pre -dated the Board
16
of Directors votes, both parties made submissions on, and wanted this investigation to
resolve, whether the Respondent was entitled to participate on those subsequent
occasions.
68. In summary, the process was procedurally fair. Each party had full opportunity to
make submissions on the issues in this report and to comment on the other party's
submissions.
POSTIONS OF THE PARTIES
69. The Complainant argues that the Respondent failed to approach matters before
the TRCA Board with an open mind.
70. In her initial complaint, she notes that the Respondent was one of the members of
Pickering Council that "advocated the hardest for the MZO" related to the subject
property. She concludes that he therefore "could not possibly have approached the TRCA
debate an open mind" since his "mind was made up in favour of the development, in
opposition to the TRCA's declared support for the wetlands."
71. As evidence of this, she pointed to the fact that the Respondent: voted with
Pickering Council in favour of requesting the MZO; actually wrote the letter to the Minister
of Municipal Affairs and Housing formally requesting the MZO; indicated that he
personally spoke to the local MPP in favour of the MZO; and was otherwise on record
making public statements in support of the development.
72. The Complainant also appeared as a delegation before Pickering City Council at
its March 22 meeting. In her presentation to Council, she stated that while she
understands that "MZOs have their place in planning," they should be used with "extreme
caution" because they serve to bypass proper planning processes.
73. The Respondent argues that the complaint is frivolous and vexatious. The
Complainant disagrees.
74. The Respondent is familiar with recusals, such as those, for example, made
following disclosures of pecuniary interest under the Municipal Conflict of Interest Act. He
never felt that his participation in TRCA Board of Directors consideration of these matters
warranted his recusal.
75. He acknowledges having always been an advocate for the development of the
subject lands and, in particular, for the Durham Live proposal, but submits that he
nevertheless maintained an open mind in respect of all matters before the TRCA Board.
76. The Respondent notes that section 28.0.1 of the Conservation Authorities Act left
TRCA with a narrow role. It was required to grant permission, but it could attach
17
conditions. Consequently, he argues that his prior statements were not relevant to his
participation in a TRCA decision on which it had no choice.
77. The Respondent also submits there is a distinction between the MZO (which he
characterizes as a zoning and planning tool) and the TRCA decisions that that would
follow. Expressed simply: zoning only controls what may be built on land; permitting and
conditions determine what will be built. He submitted that he could simultaneously support
Pickering's request for the MZO and the actual MZO, as it affected planning, but
nevertheless remain open to persuasion with respect to his responsibilities on the TRCA
Board of Directors.
78. The Respondent maintains that his advocacy for the MZO had no impact on his
conduct as a TRCA Board Member.
79. According to the Respondent, proof that he kept an open mind and did not prejudge
the matter is that, on March 12, he voted with the rest of the Board to attach conditions —
including staff -recommended special conditions that the applicant opposed — to the
granting of permission.
80. The Complainant disagrees with the Respondent on these points. She submits
that, regardless of the outcome of TRCA decision-making, the Respondent should not
have participating in considering the application. She submits that the distinction between
zoning and permitting (and conditions attached to permitting) is artificial, since at all
stages the fundamental issue has been whether there should be development on a
Provincially Significant Wetland.
FINDINGS OF FACT
81. Findings of fact appear in the Background section of this report, and below.
82. The Respondent is on the public record, supporting the making of the MZO for the
subject lands. He acknowledged as much in his submissions to me.
83. The Respondent also publicly supported the passage into law of Schedule 6 of
Bill 229, the Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020,
including, by implication, once it was added to the Bill, section 28.0.1 of the Conservation
Authorities Act.
84. As noted above, Respondent takes the position that zoning is substantively
different then permitting, and that his support for an MZO did not prejudge a decision by
a conservation authority about the conditions attached to granting permission. The
Complainant disagrees. I consider this question in the next section.
IN
ISSUES AND ANALYSIS
85. Before applying sections 2(d), 2(e), and 9 of the Code of Conduct to the
Respondent's participation, I will briefly summarize the law on conflict of interest, bias,
fiduciary duty, and hearings. In my view, sections 2(d), 2(e), and 9 of the Code are meant
to reiterate the legal obligations of Board Members, and they should be interpreted in a
manner consistent with the law.
86. The common law treats differently a Member who has a personal interest in a
matter before the Board, and one who has previously expressed views on a matter before
the Board. The issue in the former case is conflict of interest; the issue in the latter is
prejudgment: they are not the same.51 The law governs both situations, but the legal tests
are different.
Personal Interest (Conflict of Interest)
87. When a Member has a personal interest in a matter, for example, because of a
relationship with the applicant, the appropriate test is reasonable perception (or
reasonable apprehension). "Would a reasonably well-informed person consider that the
interest might have an influence on the exercise of the official's public duty?""
88. If a reasonable observer would conclude that the Member's interest might
influence the Member's participation in TRCA decision-making on a matter, then the
Member should withdraw.
89. The common law obligation is not inconsistent with, but is broader than, the
Municipal Conflict of Interest Act obligation to disclose certain types of pecuniary interest
(e.g., self, spouse, parent, child, employer, etc.) and to withdraw from decision making,
attempting to influence others, and voting.53
90. For example, if a Member is the personal friend of an applicant, then the Municipal
Conflict of Interest Act might not apply, but the common law rule could still be relevant; it
requires withdrawal if a reasonably well-informed person would consider that the personal
friendship might influence the Member's participation.
51 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170, at 1196: "1 would
distinguish between a case of partiality by reason of pre -judgment on the one hand and by reason of
personal interest on the other.... [The latter] is commonly referred to as a conflict of interest." See also:
Fortin v. Sudbury, 2020 ONSC 5300 (CanL11), at para. 139.
12 Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), note 51, at 1198.
51 Municipal Conflict of Interest Act, ss. 2, 3, 5, 52
19
Prejudgment and Previously Expressed Opinion
91. In the case of a previously expressed opinion, as opposed to a personal interest,
the Supreme Court of Canada has made clear that the reasonable perception standard
does not apply 54
92. Instead, the standard is that of an open mind. Despite any previous statements
made about a matter, a Member who remains capable of persuasion may participate in
the decision making:
The party alleging disqualifying bias must establish that there is a prejudgment of the matter,
in fact, to the extent that any representations at variance with the view, which has been
adopted, would be futile. Statements by individual members of Council while they may very
well give rise to an appearance of bias will not satisfy the test unless the court concludes
that they are the expression of a final opinion on the matter, which cannot be dislodged. In
this regard it is important to keep in mind that support in favour of a measure before a
committee and a vote in favour will not constitute disqualifying bias in the absence of some
indication that the position taken is incapable of change. The contrary conclusion would
result in the disqualification of a majority of Council in respect of all matters that are decided
at public meetings at which objectors are entitled to be heard. ss
93. The party that alleges a Member should be disqualified bears the onus of proving
that the Member has prejudged the matter to the extent of having a closed mind.56
94. As I have noted, when the question is prejudgment bias, the perception test (what
a reasonable observer would perceive) is not applicable.' The test is whether a Member
has a closed mind, in fact. 58 On this point, the Member's actual conduct at the meeting,
including the Member's voting, is relevant:
The councillors in question may have had an opinion, even a strong opinion on the matter,
but their conduct at the meeting where the resolution was actually passed shows that they
were willing to listen to contrary points of view and to amend their positions as a result of
those contrary opinions. This is the opposite of what is meant by a closed mind.59
[emphasis added]
54 Old St Boniface Residents Assn., note 51, at 1198.
ss Old St Boniface Residents Assn., note 51, at 1197.
ss Belleville Sign Rentals Inc. et al. v. The Corporation of the City of Belleville, 2019 ONSC 6579 (CanLll),
at para. 49.
57 While the decision in Citizens for Accountable and Responsible Education Niagara Inc. v. District School
Board of Niagara, 2015 ONSC 2058 (CanLll), at para. 114, suggests that the closed -mind test is
assessed on a reasonable -person standard, this is assertion is expressly contrary to the reasons of the
Supreme Court of Canada majority in Save Richmond Farmland Society v. Richmond (Township),
note 58, below, and Old St Boniface Residents Assn., note 51, at 1198: "It was error, therefore, for the
learned judge to apply the reasonable apprehension of bias test."
58 Save Richmond Farmland Society v. Richmond (Township), [1990] 3 SCR 1213, at 1124: "Southin and
Toy JJ.A. opined that a reasonable person would conclude that he had a closed mind. As explained in
Old St. Boniface, the relevant test is whether the Councillor had a closed mind, in fact."
59 Know Your City Inc. v. The Corporation of the City of Brantford, 2021 ONSC 154 (CanL11), at para. 43.
20
Fiduciary Duty/ Best Interests of The Authority
95. Each board member of a public body has a fiduciary duty to make decisions in the
best interest of the public body. This is true of a municipal councillor in relation to the
municipal corporation, and true of a conservation authority member (commonly referred
to as a board member, or director) in relation to the conservation authority.
96. In a pre -Confederation case involving the Mayor of Toronto, the Court explained
that the interests of the corporation must be the sole basis of decision-making:
But the City of Toronto had entrusted the management of this, as of all other matters, to the
common council; and every member of the common council, in discharge of that trust, was
bound to determine those questions with a single eve to the interests of the corporation.60
[emphasis added]
97. This principle has been reaffirmed and applied in modern times.61
98. A member who participates in the decision making of a public body must act in the
interests of the public body, even if the member belongs to another public body. The
clearest expression of the principle is found in a 2010 Ontario Court of Appeal decision
involving councillors who belonged to both an upper -tier municipality and a lower -tier
municipality (a common occurrence):
In reaching this conclusion I should not be taken to suggest that in discharging theirfunction
as ex officio members of Dufferin Council, the Orangeville representatives do not owe a
duty to act in the interests of Dufferin County. They do. However, they cannot be said to
violate their duty to Dufferin County simply because they also represent the interests of
Orangeville.62
99. The same principle applies to board members of a conservation authority. They
owe a duty to act in the interests of the conservation authority. (However, they cannot be
said to violate their duty to the conservation authority simply because they also represent
the interests of a municipality.) See section B-1(4) of the Administrative By -Law: "Board
Members owe a fiduciary duty to TRCA and not their Member Municipalities, when acting
as a Board Member of the organization."
Interests of Two Public Bodies: Not a Disqualifying Conflict
100. The 2010 Ontario Court of Appeal decision deals with another important principle:
The municipal councillor who is nominated by, appointed by, or represents the
municipality, on another body, is not disqualified, merely because decision making by one
could affect the interests of the other. In that case, Town of Orangeville representatives
60 Toronto v. Bowes (1854), 4 Gr. 489, at 508, per Blake C., aff'd (1856), 6 Gr. 1, affd C.R. [3] A.C. 10,
11 Moo. P.C. 463, 14 E. R. 770.
61 Alberta v. Hawrelak (1965), 53 DLR(2d)353 (Alta. C.A.), at 357, aff'd (1966), 53 DLR (2d) 673 (S.C.C.);
see also R. v. Gentile (1993), 81 CCC (3d) 541, 1993 CanLl1 14685 (Ont. Ct. Prov. Div.), at CCC 550,
12 Orangeville (Town) v. Dufferin (County), 2010 ONCA 83 (CanLII), at para. 27.
21
on County Council were permitted to vote on a County decision of significant pecuniary
interest to Orangeville.63
101. Similar decisions were made in the cases of two councillors appointed to represent
their municipality on the board of a non-profit corporation substantially funded by the
municipality,64 and three councillors appointed by the municipality to the board of health,
who then voted on a matter affecting the board of health.66
102. A key factor in all these decisions was that the councillors were all representing
public interests, not private interests.
103. A municipal councillor appointed as a board member of a conservation authority is
not disqualified by conflict of interest, and may participate in decision making, when the
conservation authority considers a matter in which the councillor's municipality has an
interest.
Hearing Procedure and Fairness
104. Section 28 and section 28.0.1 of the Conservation Authorities Act provide, in
particular circumstances, for hearings, such as the one held on March 12. The hearing
and subsequent decision must meet the common law requirement of procedural
fairness. Aspects of procedural fairness include, for example, hearing from a party (or
allowing an opportunity to be heard) before making the decision, and ensuring that the
people who make the decision are the ones who heard the case. In addition, a provincial
statute called the Statutory Powers Procedure Act sets out particular procedural
requirements.
105. TRCA has adopted Hearing Guidelines, which are intended to ensure that hearings
are procedurally fair and comply with the Statutory Powers Procedure Act.66
106. In my view, Code of Conduct section 9 ("Apprehension of Bias') is intended to
apply more broadly than the name suggests. The content of section 9 clearly
contemplates the Hearing Guidelines, procedural fairness, and the Statutory Powers
Procedure Act. For example, the prohibition of discussion of a matter outside the hearing
promotes many aspects of fairness, including: basing the decision on what occurs in the
hearing; not deciding until the hearing is held; ensuring parties receive notice of the issues
and a chance to address them; not conducting the hearing in the absence of a party.
63 Orangeville v. Dufferin, note 62, passim.
s4 Aurora (Town) v. Her Majesty the Queen in Right of Ontario, 2013 ONSC 6020 (CanLl I).
ss Blyth v. Northumberland (County) (Gen. Div.), 1990 CanLll 6752 (ON SC).
ss Hearing Guidelines (October 2005, Amended 2018), Board of Directors Administrative By -Law,
Appendix 5, Attachment 1.
22
107. Section 9 codifies the responsibility of each individual Member to act in a manner
that allows TRCA to conduct procedurally fair hearings. It should be interpreted in that
manner.
Issue A: Is the Complaint Frivolous and Vexatious?
108. No. The manner in which the Respondent expressed his support for Durham Live,
such as "Let's start building" and "Let's start digging," gave rise to a concern that cannot
be described as frivolous. I should add that the length and detail of this investigation report
indicate that the complaint raised issues that were not frivolous.
109. Vexatiousness, meanwhile, is a concept that can only be assessed in the full
context, including prior dealings involving the parties. There is no evidence before me
that would allow me to find the complaint is vexatious.
Issue B: Did the Respondent Fail to Approach Matters with an Open Mind,
Contrary to Section 2(d)?
110. At the end of the day, the way he voted demonstrated that the Respondent did not
have a closed mind. He voted for conditions that the applicant opposed.
111. On this point, according to the Supreme Court of Canada, perception is not the
standard. The standard is met because, in fact, his mind was not closed.
112. That being said, I do find that the Complainant's perception was understandable.
The Respondent's consistent championing of Durham Live caused the Complainant to
doubt that he approached TRCA decision making with an open mind.
113. 1 also find that the distinction between zoning (the MZO) and granting permission
(the TRCA decision) is not necessarily determinative of compliance with the Code when
the subject is the same development on the same lands. The Respondent correctly
observes that Planning Act zoning governs what type of development is permitted and
where, while TRCA was deciding what conditions, if any, would be imposed on a
permission it was compelled to grant. However, the Complainant accurately points out
that the "what" and the "where" were the same in both instances: both the MZO and the
applications to TRCA dealt with the same development on a Provincially Significant
Wetland. (This is the case even though the Respondent voted with the rest of the TRCA
Board, October 23, to oppose development within wetlands). Further, claiming the MZO
merely determined what may be a permissible use of the lands, not what actually gets
built, seems inconsistent with the Respondent's response to the MZO: "Fantastic news.
Durham Live MZO issued to realize full potential of Durham Live. Thousands of jobs."
114. On the other hand, I find that the Respondent's support of Bill 229 was not relevant
to his participation in TRCA decision making and not evidence of a closed mind.
Schedule 6 of the Bill affected the powers and responsibilities of conservation authorities,
23
but it did not pertain to any particular matter that would come before TRCA. (Also, until a
few days before Royal Assent, it did not include the provision compelling a conservation
authority to grant permission for a development authorized by an MZO.) To articulate an
opinion on whether a proposed, provincial law of general application should be enacted,
is not to prejudge what one might decide if the law is enacted.
115. As noted, on October 23, the Respondent voted in favour of a TRCA Board
resolution stating, in part, "the Board of Directors indicate that they do not support
development within wetlands, particularly, Provincially Significant Wetlands."
116. On March 12, the Respondent further demonstrated his open mindedness by
voting to attached special conditions that the owner opposed. Regardless of the
perception created by his public statements, he was open minded in fact. This is what the
common law and the Code of Conduct required of him.
Issue C: Did the Respondent Fail to Uphold His Fiduciary Duty to Act in the Best
Interests of TRCA, Contrary to Section 2(e)?
117. There was no failure to act in the best interests of TRCA.
118. In voting with the majority of the Board to adopt staffs recommendation of special
conditions to attach to the permission, there is no evidence that the Respondent was
acting other than in the best interests of TRCA.
119. It is true that the Respondent is also a member of Pickering City Council and
Durham Regional Council, but there is no evidence that those roles caused him not to act
in TRCA's best interests.
120. On Schedule 6 of Bill 229, the Respondent espoused views opposite to TRCA's
official position. His expression of opinion on provincial legislation of general application,
either before or after its passage, did not interfere with his fiduciary duty to TRCA. The
fact that TRCA held its own opinion of what the provincial law should have been does not
mean that expression of a contrary opinion was against TRCA's interests.
Issue D: Did the Respondent Contravene Section 9, which Supports TRCA in
Conducting Procedurally Fair Hearings?
121. No.
122. As previously explained, I believe section 9 of the Code of Conduct is meant to be
interpreted as consistent with common law and statutory rules of procedural fairness, and
with the Hearing Guidelines.
123. Nothing the Respondent did compromised procedural fairness or placed it at risk.
24
124. The Respondent did not have a personal interest in the hearing, either directly or
indirectly as a result of belonging to City Council or Regional Council. The City of
Pickering and Durham Region were not parties to the March 12 hearing, so their interests
were not directly affected. Even if Pickering's and Durham's interests were affected by
the hearing, Orangeville v. Dufferin and other cases make clear that the Respondent was
not disqualified on that basis, whether at common law, under the Municipal Conflict of
Interest Act, or under section 9 of the Code.
125. Further, there is no indication that the Respondent discussed the conditions of
granting permission with the applicant, or anyone, prior to the hearing, or outside the
hearing, before the making of the decision.
126. Section 9 of the Code of Conduct prohibits outside -of -the -hearing discussion for
many good reasons, some of which are mentioned at paragraph 106, above. None of
these reasons was engaged by this particular case. Despite any impression of
prejudgement that may have been created by the Respondent's public comments, he was
open-minded in fact. On the question of prejudgement, actual open-mindedness, not
perception, is determinative.
127. Despite the fact that there was no contravention of section 9 in this instance, the
fact remains that section 9 exists to ensure that individual Members do their part to uphold
TRCA's compliance with the Hearing Guidelines, procedural fairness, and the Statutory
Powers Procedure Act. Discussing the subject of a hearing outside of the hearing,
including but not limited to making social media comments, certainly might compromise
the apparent fairness of a hearing and expose a Member to the risk of contravention of
section 9 of the Code of Conduct.
CONCLUSION
128. 1 find that Kevin Ashe did not contravene the Code of Conduct for Board Members.
129. TRCA might consider refresher training related to Board Members' compliance
with the Code, particularly compliance with section 9 (and procedural fairness generally)
if the Board of Directors is likely to conduct more hearings in future.
Respectfully submitted,
Guy Giorno
Investigator
April 21, 2021
ADJOURNMENT
ON MOTION by Anthony Perruzza, the meeting was adjourned at 12:41 p.m., on Friday, April
30, 2021.
Jennifer Innis
Chair
/am
John MacKenzie
Secretary -Treasurer