



COURT OF APPEAL FOR ONTARIO

CITATION: Ferri v. Ontario (Attorney General), 2015 ONCA 683

DATE: 20151008

DOCKET: C60766

Cronk, Tulloch and Hourigan JJ.A.

BETWEEN

Mario Ferri

Applicant (Appellant)

and

Her Majesty the Queen, as represented by the
    Ministry of the

Attorney General

Respondent (Respondent)

Paul J. Pape and Andrea M. Bolieiro, for the appellant

Tom Schreiter, for the respondent

Heard: September 25, 2015

On appeal from the order of Justice Robert E. Charney of
    the Superior Court of Justice, dated June 23, 2015.

Hourigan J.A.:

[1]

Mario Ferri appeals the order dismissing his application under r. 14.05(3)
    of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194,

for a declaration that he does not have
    a pecuniary interest within the meaning of the
Municipal Conflict of
    Interest Act
, R.S.O. 1990, c. M.50 (the 
MCIA
) in relation to an
    appeal currently before the Ontario Municipal Board (the OMB) commenced by
    Antonio Di Benedetto (the Di Benedetto Appeal) and related matters.

[2]

At the conclusion of oral argument, this court allowed the appeal, for
    reasons to follow. These are those reasons.

A.

Background in Brief

[3]

The facts giving rise to the application are simply stated. The
    appellant is a local and regional councillor for the City of Vaughan. His son,
    Steven Ferri, is an associate with the law firm Loopstra Nixon LLP, practising
    in the areas of municipal, development, and land use planning law. Following
    the adoption of the Vaughan Official Plan 2010 (the Plan) by Vaughan City Council,
    Loopstra Nixon was retained by Antonio Di Benedetto to appeal an aspect of the
    Plan to the OMB. Steven Ferri works directly on the Di Benedetto Appeal, under
    the supervision of a partner of Loopstra Nixon.

[4]

Pursuant to s. 3 of the
MCIA
, the pecuniary interest of any
    parent, spouse, or child of a councillor, if known to the councillor, is deemed
    to be the pecuniary interest of the councillor. Under s. 5 of the
MCIA
,
    where a councillor has a pecuniary interest, direct or indirect, in any matter
    that is under consideration at a meeting, that member shall declare his
    interest, and is prohibited from, among other things, discussing or voting in
    respect of the matter or attempting to influence the vote. However, pursuant to
    s. 4(k) of the
MCIA
, where the pecuniary interest of the councillor is
    so remote or insignificant in its nature that it cannot reasonably be regarded
    as likely to influence the councillor, s. 5 does not apply.

[5]

Given that the pecuniary interest of his son is deemed to be also his
    pecuniary interest, the appellant adopted, out of an abundance of caution, the
    practice of disclosing and declaring an interest under s. 5 of the
MCIA
with respect to any matter in which he knew that Loopstra Nixon was retained.
    However, given the importance of the matters related to the Plan, the appellant
    brought an application to determine whether he could participate in council
    proceedings with respect to the Di Benedetto Appeal without breaching the
MCIA
.

B.

Application Judges Decision

[6]

The application judge dismissed the application, holding that Steven
    Ferri had a pecuniary interest in the Di Benedetto Appeal, that Steven Ferris
    pecuniary interest was neither remote nor insignificant, and that a reasonable
    elector would likely conclude that the appellants deemed interest was not so
    remote or insignificant in its nature that it cannot reasonably be regarded as
    likely to influence the member.

C.

Issues

[7]

On appeal, the appellant argues that the application judge erred in
    dismissing his application by: (i) applying an overly broad definition of the
    term pecuniary interest under the
MCIA
; (ii) conflating the
    analyses required under ss. 3 and 4(k) of the
MCIA
; and, (iii) disregarding
    factors relevant to the analysis required under s. 4(k) of the
MCIA
.

[8]

For the following reasons, I would allow the appeal.

D.

Discussion

[9]

Turning first to the appellants argument that the application judge
    erred by applying an overly broad definition of pecuniary interest under the
MCIA
,
    I note that pecuniary interest is not a defined term in the
MCIA
. The
    case law establishes that a pecuniary interest under the
MCIA
is
    restricted to a financial, monetary, or economic interest: see
Mondoux v.
    Tuchenhagen
, 2011 ONSC 5398, 107 O.R. (3d) 675 (Div. Ct.), at para. 31;
Magder
    v. Ford
, 2013 ONSC 263, 113 O.R. (3d) 241 (Div. Ct.), at para. 6, leave to
    appeal to S.C.C. refused, 326 O.A.C. 400 (note).

[10]

This
    court has held that, given the purpose of the
MCIA
, what constitutes
    a pecuniary interest sufficient to trigger the provisions of the
MCIA
is not to be narrowly confined:
Orangeville (Town) v. Dufferin (County)
,
    2010 ONCA 83, 266 O.A.C. 207, at para. 22. The competing policy imperative is
    that pecuniary interest must not be construed so broadly that it captures
    almost any financial or economic interest such that it risks needlessly
    disqualifying municipal councillors, and others captured under the ambit of the
MCIA
, from participating in local matters of importance to their
    constituents. Section 4(k) of the
MCIA

operates to respond to
    this concern and ameliorate the potentially harsh effects of a broad definition
    of pecuniary interest by ensuring that pecuniary interests that are truly
    remote or insignificant are not caught under s. 5.

[11]

The
    application judge found as a fact that Steven Ferris salary, bonus and
    ongoing employment do not depend on the outcome of the Di Benedetto appeal or
    any decision by the City or the Regional council with respect to these matters.
    However, the application judge nonetheless held that Steven Ferris pecuniary
    interest was neither remote nor insignificant on the basis that it ignores
    reality to suggest that success goes unrewarded in the legal profession. The
    appellant submits that this finding was entirely speculative.

[12]

In
    the present case it is unnecessary to determine whether the appellant has a
    pecuniary interest in the Di Benedetto Appeal because the appellant conceded on
    the application that Steven Ferri has an indirect pecuniary interest in the
    outcome of the Di Benedetto Appeal. An indirect interest is defined in s. 2 of
    the
MCIA
and includes a matter in which the councillor is 
a partner of a person or is in the
    employment of a person or body that has a pecuniary interest in the matter
.

[13]

Having
    made this concession on the application, the appellant cannot resile from it on
    this appeal. Although the application judge did not explicitly rely on the
    concession in reaching his conclusion that Steven Ferri has a pecuniary
    interest, his analysis was conducted in the context of the concession. In any
    event, for the reasons discussed below, I am of the view that any pecuniary
    interest is so remote or insignificant that it falls within the exception in s.
    4(k) and that, consequently, the appellant is not required to comply with the requirements
    of s. 5.

[14]

The
    appellants next submission is that the application judge conflated the
    analyses required under ss. 3 and 4(k). Specifically, the appellant argues that
    the application judge improperly imported into his s. 4(k) analysis his
    conclusions from his s. 3 analysis. I agree.

[15]

The
    application judge stated that, [i]f the interest of the child is proximate and
    significant, then, unless there is some reason to conclude otherwise, so too is
    the deemed interest of the member. The application judge erred in reaching
    this conclusion. The analysis of whether a councillors pecuniary interest is
    too remote or insignificant to be reasonably regarded as likely to influence
    that councillor cannot be premised on the notion that, unless proven otherwise,
    the councillor is fixed with the same level of proximity and significance as
    his child. The s. 4(k) analysis must commence afresh and focus on the proximity
    and significance of the councillors pecuniary interest in the context of all
    the circumstances. In my view, the application judge erred in his approach to
    s. 4(k) by reading in a rebuttable presumption.

[16]

The
    application judge compounded this error in his consideration of the factors
    relevant to the analysis required under s. 4(k) of the
MCIA
. The test
    to be applied under s. 4(k) is well established, and asks [w]ould a
    reasonable elector, being apprised of all the circumstances, be more likely
    than not to regard the interest of the councillor as likely to influence that councillors
    action and decision on the question?:
Whiteley v. Schnurr
(1999), 4
    M.P.L.R. (3d) 309 (Ont. S.C.), at p. 313;
Lastman v. Ontario
(2000),
    47 O.R. (3d) 177 (S.C.), at para. 14;
Tolnai v. Downey
(2003), 40
    M.P.L.R. (3d) 243 (Ont. S.C.), at p. 252;
Bowers v. Delegarde
(2005),
    5 M.P.L.R. (4th) 157 (Ont. S.C.), at p. 180;
Lorello v. Meffe
, 2010
    ONSC 1976, 99 M.P.L.R. (4th) 107, at para. 80;
Amaral v. Kennedy
, 2012
    ONSC 1334, 96 M.P.L.R. (4th) 49 (Div. Ct.), at para. 17;
Hazineh v.
    McCallion
, 2013 ONSC 2164, 11 M.P.L.R. (5th) 18, at para. 99;
Craig v.
    Ontario (Attorney General)
, 2013 ONSC 5349, 15 M.P.L.R. (5th) 23, at para.
    34;
Aurora (Town) v. Ontario
, 2013 ONSC 6020, 17 M.P.L.R. (5th) 188,
    at para. 38.

[17]

That
    test requires a court to consider
all
the circumstances:
Amaral
,
    at paras. 38-44;
Craig
, at para. 35. The application judge accepted
    that the same factors relevant to the Divisional Courts analysis in
Amaral
were present in the appellants case. In
Amaral
, at para. 41, these
    relevant factors included the lack of bad faith of the trustee, the number of
    years of faithful service of the trustee, the trustees long career of public
    service, and evidence that the trustee was there for her constituents and not
    for her sons.

[18]

However,
    in his reasons, the application judge expressly questioned whether the motive
    of a councillor, identified as relevant to the application of the reasonable
    elector test by the Divisional Court in
Amaral
, was appropriate to be
    considered in the analysis. The application judge stated that in this regard
Amaral
was inconsistent with the earlier Divisional Court decision of
Moll v.
    Fisher
(1979), 23 O.R. (2d) 609, where the court held that a councillors
    motive was not a relevant consideration.

[19]

There
    is no inconsistency between
Amaral
and
Moll
. In
Moll
the court was considering an earlier version of the
MCIA
that provided
    that the remoteness or insignificance of a pecuniary interest was a mitigating
    factor in determining the penal consequences of a breach of the statute.
    Therefore, under that version of the
MCIA
the court concluded that
    motive was not relevant to determining if a pecuniary interest was present. In
    contrast, under the current version of the legislation, good faith and motive
    are relevant to the question of whether a pecuniary interest is likely to
    influence the councillor, which lies at the heart of the analysis of whether a
    pecuniary interest is remote or insignificant under s. 4(k).

[20]

The
    application judge erred in concluding that
Amaral
and
Moll
are inconsistent. While the application judge indicated that he nonetheless took
    the factors identified in
Amaral
into account in his application of
    the s. 4(k) test, his lack of analysis of these and other relevant factors in
    his reasons precludes meaningful appellate review.

[21]

In
    these circumstances, it falls to this court to conduct the required analysis
    under s. 4(k). In my view, applying the relevant test, it is necessary to consider
    all the following circumstances that were established in the evidence:

·

The appellant has many years of faithful service to the
    municipality;

·

The appellant was acting in good faith and his motivation to
    participate in the issues related to the Plan are not motivated by a potential
    pecuniary benefit;

·

The appellant has been extremely vigilant and conscientious in
    declaring conflicts of interest under the
MCIA
, including sixteen
    times when Loopstra Nixon was retained on a matter, even if his son was not on
    the file;

·

The matters related to the Plan are of major public interest to
    his constituents;

·

The appellant receives no benefit from his sons compensation;
    and,

·

Steven Ferris compensation and employment do not depend on the
    outcome of the Di Benedetto Appeal or any decision of council respecting these
    matters.

[22]

In
    my view, a reasonable elector apprised of all these circumstances would not
    conclude that the appellants deemed interest in the Di Benedetto Appeal would
    be likely to influence his participation in debate or voting on the matter
    before council.

E.

Disposition

[23]

I
    would allow the appeal, set aside the order of the application judge, and grant
    the appellant an order declaring that his deemed pecuniary interest in the Di
    Benedetto Appeal and related matters is sufficiently remote or insignificant in
    its nature that it cannot reasonably be regarded as likely to influence the Appellant.
    I note that this decision applies only to the Di Benedetto Appeal and related
    matters and does not affect the right of any person under the
MCIA
to
    raise other potential conflicts of interest related to other matters, including
    other matters where Loopstra Nixon or Steven Ferri are retained.

[24]

Since
    this matter was unopposed, the respondent taking no position and filing no
    materials, the issue of the costs of this appeal does not arise.

Released: October 8, 2015 CWH                C.W.
    Hourigan J.A.

I
    agree E.A. Cronk J.A.

I
    agree M. Tulloch J.A.


