) ) CITY OF ELLIOT LAKE (INTEGRITY COMMISSIONER) Applicant – v. –, 2023 ONSC 223

CITATION : City of Elliot Lake (Integrity Commissioner) v. Patrie, 2023 ONSC 223 COURT FILE NO.: 28237-19 DATE: 2023-01-09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) CITY OF ELLIOT LAKE (INTEGRITY COMMISSIONER) Applicant – and – CHRIS PATRIE Respondent ) ) ) ) ) ) ) ) ) ) Raivo Uukkivi, for the Applicant Peter Berlingieri , for the Respondent ) ) ) HEARD: August 12 and 13, 2021 APPLICATION UNDER SECTION 8(1) OF THE MUNICIPAL CONFLICT OF INTEREST ACT , R.S.O. 1990, c. M.50 Rasaiah J. REASONS FOR JUDGMENT INTRODUCTION [ 1 ] A notice of application was issued in which the applicant seeks a finding that the respondent violated the Municipal Conflict of Interest Act , R.S.O. 1990,

Chapter M.50 , as amended, pursuant to sections 5(1) and 5(2) of that Act , and seeks his removal from office as a member of the Elliot Lake City Council, pursuant to section 9(1) of the Municipal Conflict of Interest Act . [ 2 ] The court reserved its decision, and the following are my reasons. The Legislative Framework [ 3 ] The Act that governs the issues before the court is the Municipal Conflict of Interest Act , R.S.O. 1990,

Chapter M.50 (“the Act ”). The Act was amended in 2017 with the amendments proclaimed on March 1, 2019. The effect of the amendments pertaining to the case at bar concern the penalties that can be imposed for a contravention of the Act , as set out in

section 9 . This amended

section gives the court more discretion with a range of penalties that include reprimand to removal from office and disqualification from office for a period of up to seven years. OVERVIEW [ 4 ] The Applicant is noted as the Integrity Commissioner (“IC”). [ 5 ] The respondent, Christopher Patrie, (“Patrie”), a then councillor for the City of Elliot Lake (“City”), is alleged to have participated in, and/or influenced municipal decisions in which he had a financial interest.

It is alleged that Patrie influenced public policy by actions inside and outside of council chamber, by attempting to dissuade fellow elected members from placing a 30 million dollar taxpayer-funded recreational infrastructure project (“Hub”) in the downtown core and lobbying for it to be located behind commercial real estate he had an interest in, namely a shopping plaza (“plaza”) owned by a corporation, the shares of which were owned by him and his wife at the material time.

In addition to owning the plaza, the same corporation ran a business at the plaza known as the Elliot Lake Trading Post (“Trading Post”). [ 6 ] Voluminous materials were filed on this application, including affidavits, reports, bylaws, resolutions, minutes of meetings,

maps, audio/video recordings, and other exhibits (see the records filed), transcripts from cross-examinations of the affiants, factums, and books of authorities. For clarity, I have reviewed the materials in coming to the conclusions I have, and just because I have not alluded to every piece of evidence filed, it should not be taken as me not having reviewed same as requested. [ 7 ] Several issues were raised by each party requesting the Court’s determination of same.

SUMMARY OF THE POSITION OF THE APPLICANT [ 8 ] The applicant alleges that Patrie engaged in actions inside and outside of the council chamber and at meetings that breached the Act ; that he did this to attempt to dissuade fellow elected members from placing the Hub in the downtown core of the City in favour of another location, located near the plaza.

The applicant describes the area as a “stone’s throw” away from the plaza. [ 9 ] The applicant alleges that from on or about November 2017 to April 2019, the respondent’s actions included threatening another member of limited means with the legal jeopardy of an ethics complaint if this member did not recuse himself from the vote to purchase downtown core property for the Hub; that the threat succeeded and that the vote failed as a direct result; that the influence was illicit; changed the course of infrastructure development of the entire community and the respondent used a resulting gap in public policy to push for the Hub to be located near the plaza.

The applicant alleges that Patrie lobbied the then mayor, other councillors and even members of the public.

He is also accused of pressuring City staff to prepare favourable reports for the location near the plaza even though numerous professional reports had never considered it a viable option. [ 10 ] The applicant further alleges that when Patrie learned that his actions were being investigated, he threatened one of the investigators with legal action and attempted to seize upon an administrative oversight to defund, terminate and demand a refund from the IC (to avoid accountability). [ 11 ] The applicant submits that Patrie specializes in the “non-denial denial” and is not credible.

The applicant alleges that Patrie chooses not to deny most of these allegations.

In affidavits and cross-examination, the applicant argues that Patrie obfuscates, pontificates, and evades specific questions by disputing irrelevant details, raising justifications that do not amount to legal defences, and/or refers to events out of chronological order – all in the apparent hope that the issues will be sufficiently confused so that it will seem like there is an explanation for each of his actions. [ 12 ] The applicant states that the record establishes the allegations, and that the maximum sanction ought to be ordered.

SUMMARY OF THE POSITION OF THE RESPONDENT [ 13 ] Patrie states that the application arises out of a dispute between municipal politicians relating to the acquisition of property for municipal purposes. The application was facilitated by the applicant IC, a corporate integrity commissioner, Expertise for Municipalities (“E4M”), who was not lawfully appointed by the municipal council, not trained, or experienced in the handling and disposition of applications brought under the Act .

This IC acted outside the boundaries of the enabling legislation, and made unsubstantiated findings in evidence, not supported in law, that Patrie had contravened the Act . [ 14 ] Patrie submits that there is no evidence to support the IC’s allegations that Patrie had a pecuniary interest in a matter, and/or that he was present at Council when the matter was discussed and/or that he influenced: the voting on any such questions, decisions, staff, others, or recommendations in contravention the Act . Further, he takes the position that even if the evidence establishes, he had a pecuniary interest,

section 5 of the Act does not apply because his interest was an interest in common with the electors generally. [ 15 ] Patrie asks that the application be dismissed, but if the Court finds contravention(

s) that the penalty be a reprimand. ISSUES [ 16 ] The applicant framed the issues as follows: a. 1: Did Patrie, either on his own behalf or while acting for, by, with or through another, have a pecuniary interest, either direct or indirect in any matter that was the subject of consideration by Council?

If so, b. 1A: In respect of his interactions with Councillor Cyr (“Cyr”) prior to the December 19, 2018 meeting of Council, did he attempt in any way whether before, during or after that meeting to influence the voting on such a question? c. 1B: At the council meeting of December 19, 2018, did he fail to disclose his pecuniary interest and the general nature thereof? d. 1C: At the council meeting of December 19, 2018, did he take

part in the discussion of, or vote on any question in respect of that matter? e. 1D: In respect of his interactions with Mayor Marchisella (“Mayor”), Councillor Turner (“Turner”), Councillor Mann (“Mann”), Chief Administrative Officer Gagnon (“Gagnon”), or any one of them, did he attempt in any way whether before, during or after the council meeting of March 6, 2019, during which one item on the agenda was to revisit the purchase of 151 Ontario Avenue for the Hub, attempt to influence the voting on such a question? f. 1E: At the meeting of March 6, 2019, did he fail to disclose his pecuniary interest and the general nature thereof? g. 1F: At the meeting of March 6, 2019, did he take

part in the discussion of revisiting the purchase of 151 Ontario Avenue for the Hub? h. 2: Did Patrie have a direct or indirect pecuniary interest in a matter being considered by council, and use his office in any way to attempt to influence any decision or recommendation resulting from consideration of a matter?

i. 3: Do any of the exclusions at s. 4 of the Act apply? j. 4: If the answers to any of Issues 1a - 2 are “yes” and the answer to Issue 3 is “no”, are Councillor Patrie’s retributive actions towards the Integrity Commissioner aggravating factors in the exercise of the Court’s discretion pursuant to s. 9(2) of the Act ? k. 5: If the answers to any of Issues 1a - 2 are “yes” and the answer to Issue 3 is “no”, what is the appropriate sanction for Patrie’s breaches of the Act ? [ 17 ] The respondent Patrie framed the issues as follows: a. 1(a): Was the applicant IC a properly appointed Integrity Commissioner by the City and thus, has standing to bring this Application? b. 1(b): Does the legislation retroactively empower the Integrity Commissioner to inquire into section 5(1) (

c) of the Act alleged to have occurred prior to March 1, 2019? c. 2(a): Did Patrie have a pecuniary interest in the matter of the purchase of 151 Ontario Avenue for a Community Hub, the subject considered at the Special Meeting of Council on March 6, 2019 which he is alleged to have attended? d. 2(b): If so, does s. 4 (

j) of the Act apply to exempt Patrie from the operation of ss. 5 and 5.2 of the Act ? e. 2(c): If not, did Patrie take reasonable measures to prevent the contravention or in the alternative commit the contravention through inadvertence or by a reason of an error in judgment made in good faith? f. 3: If Patrie had a pecuniary interest, did Patrie contravene ss. 5(1) (

c) and 5.2(1) of the Act ? [ 18 ] Several sub-issues were raised as will be addressed in the discussion/analysis.

LEGAL PRINCIPLES [ 19 ] The Act provides for application to a judge for a determination. [ 20 ] The Act provides that the applicant may be an elector, an Integrity Commissioner of a municipality or a person demonstrably acting in the public interest. [ 21 ] The applicant is required to prove a breach of the Act on a balance of probabilities. [ 22 ] The duty of a member of a council is set out in s. 5 of the Act . [ 23 ] Section 5(1) of the Act provides that where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member, (

a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof; (

b) shall not take

part in the discussion of , or vote on any question in respect of the matter; and (

c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question. [ 24 ] Exceptions are set out in s. 4 of the Act . The provision submitted as applicable by the respondent for consideration provides as follows: 4. Sections 5 and 5.2 do not apply to a pecuniary interest in any matter that a member may have, (

j) by reason of the member having a pecuniary interest which is an interest in common with electors generally… [ 25 ]

Section 4 (

k) of the Act provides an exception by reason only of an interest of the member which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member. [ 26 ] The standard to be met by elected officials in avoiding conflicts of interest is very high to maintain public confidence in the administration of municipal government. This is recognized in the declaration of principles in

section 1.1 of the Act , as amended, which reads as follows: 1.1 The Province of Ontario endorses the following principles in relation to the duties of members of councils and of local boards under this Act : 1. The importance of integrity, independence, and accountability in local government decision-making. 2. The importance of certainty in reconciling the public duties and pecuniary interests of members. 3. Members are expected to perform their duties of office with integrity and impartiality in a manner that will bear the closest scrutiny. 4.

There is a benefit to municipalities and local boards when members have a broad range of knowledge and continue to be active in their own communities, whether in business, in the practice of a profession, in community associations, and otherwise. [ 27 ] An objective standard is applied in assessing the issue of a conflict of interest and application of s. 5 of the Act ; it does not

deal with intention, rather the member’s actions, objectively viewed. Intention is relevant to sanction: Baillargeon v. Carroll, (Ont. S.C.), para 77 . [28] As stated in paragraph 12 in Sheehan v. Harte (1993), 15 M.P.L.R. (2d) 311, There is a very high standard on public officials to conduct official business in an unreproachable manner. Conflicts of interest areserious matters of principle in the conduct of municipal affairs.

Consequently, the requirements of the law must be observed both as tothe particular matter and also for reasons of public confidence in the administration of municipal government … I find, however, that thelegal standard is the objective standard of a reasonable person in the place and circumstance of the respondent … [29] In Re Moll and Fisher (1979), 96 D.L.R.(3) 506 (Ont.Div.Ct.), Mr.

Justice Robins wrote, with the concurrence of the fullpanel: The obvious purpose of the Act is to prohibit members of councils and local boards from engaging in the decision-making process inrespect to matters in which they have a personal economic interest. The scope of the Act is not limited by exception or proviso but appliesto all situations in which the member has, or is deemed to have, any direct or indirect pecuniary interest. There is no need to findcorruption on his part or actual loss on the part of the council or board.

So long as the member fails to honour the standard of conductprescribed by the statute, then, regardless of his good faith or the propriety of his motive, he is in contravention of the statute. And Ishould say at once, that in so far as this case is concerned there is no suggestion that the Appellants acted out of any improper motive orlack of good faith. This enactment, like all conflict of interest rules, is based on the moral principle, long imbedded in our jurisprudence, that no man canserve two masters.

It recognizes the fact that the judgment of even the most well-meaning men and women may be impaired when theirpersonal financial interests are effected. Public office is a trust conferred by public authority for public purpose. And the Act, by itsproscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest maybe in conflict with their public duty. The public’s confidence in its elected representatives demands no less. [30] In the definition

section of the Act, a. “elector” means, (

a) in respect of a municipality, or a local board thereof, other than a school board, a person entitled to vote at a municipal election inthe municipality, and … b. “interest in common with electors generally” means a pecuniary interest in common with the electors within the area of jurisdiction and, where the matter under consideration affectsonly part of the area of jurisdiction, means a pecuniary interest in common with the electors within that part. c. “meeting” includes any regular, special, committee or other meeting of a council or local board, as the case may be. d. “member” means a member of a council or of a local board. e. “spouse” means a person to whom the person is married or with whom the person is living in a conjugal relationship outsidemarriage. [31]

Section 2 of the Act provides: For the purposes of this Act, a member has an indirect pecuniary interest in any matter in which the council or local board, as the casemay be, is concerned, if, (

a) the member or his or her nominee, (

i) is a shareholder in, or a director or senior officer of, a corporation that does not offer its securities to the public, (ii) has a controlling interest in or is a director or senior officer of, a corporation that offers its securities to the public, or (iii) is a member of a body, that has a pecuniary interest in the matter; or (

b) the member is a partner of a person or is in the employment of a person or body that has a pecuniary interest in the matter. [32]

Section 3 of the Act provides: For the purposes of this Act, the pecuniary interest, direct or indirect, of a parent or the spouse or any child of the member shall, if knownto the member, be deemed to be also the pecuniary interest of the member. [33] “Pecuniary interest” is not defined in the Act. The term “pecuniary interest” has been defined in the jurisprudence as relatingto a financial, monetary, or economic interest.

It is not to be narrowly confined, however, must also not be construed so broadly that itcaptures almost any financial or economic interest needlessly disqualifying councillors from dealing with matters of importance: Ferri v.Ontario, 2015 ONCA 683, paras. 9-10. [34] As noted in paragraph 5(1) of the Act, the pecuniary interest may be direct or indirect.

[35] In Smith v. Adams, an unreported judgment of McWilliam, D.C.J. (as he then was) he wrote at p. 47 in his reasons dated June28, 1987, A pecuniary interest need not be cash, but if his overall wealth is increased and it can be related to cash, that suffices; avoiding losses canbe as influential as making gains; the magnitude of the financial interest is irrelevant in determining if such an interest exists; and,finally, the possible effect of a given manner on the member’s wealth must be looked at in addition to its certain effect. [36] In Mino v. D’Arcey (1991), (ON SC), 2 O.R. (3d) 678 (Gen.

Div.), at paragraph 17, the court comments onwhether the respondent in that case had a pecuniary interest. Carter J., asks the question at paragraph 17, “Is such interest pecuniary? InMino, it is noted at paragraph 18 that the respondent made a profit of only about $300.00, and the magnitude of the financial interest isirrelevant. [37] There is no definition of the word “lobby” in the Municipal Act or the MCIA. The word “lobby” in its ordinary and popularsense which I find applies and is not confined to non-politicians by statutory

interpretation rules means: “to solicit the support of (an influential person)”; “(of members of the public) seek to influence (the members of a legislature)” or to“attempt to persuade a politician to support or oppose changes in the law”: Canadian Oxford Dictionary, 2nd ed., K. Barber, ed.(Toronto: Oxford UP), 2005. [38] The definition of “lobby” from the City of Toronto Municipal Code is not applicable to this case.

It is a code intended togovern various lobbyist groups (consultant lobbyists, in-house lobbyists, and voluntary unpaid lobbyists, all of which are defined in theCode referred to) and to put into place a code of conduct to ensure integrity and honesty of these groups with organizations, includingpublic office holders. DISCUSSION/ANALYSIS [39] A councillor must and must be seen to act in the public interest. Transparency is promoted to ensure public confidence indecisions being made for the community. The test is objective.

Intention is not a consideration in the application of s.5 of the Act.Neither is the value of the alleged interest.

Even a low monetary valued interest can engage a contravention of the Act. [40] What may be subjectively in Patrie’s mind, namely making decisions for the public good is not a relevant consideration at thestage of determining contravention of the Act. [41] What would an objective observer understand and believe in the place and circumstances of Patrie on the facts of this case? [42] I find the onus is met and that an objective observer would understand and believe in the place and circumstances of Patrie onthe facts of this case that he had a pecuniary interest in the matter of the location of the Hub.

History for Relocation and Expansion: The Hub [43] The record reflects that since 2006, the Council had been considering the issue and namely, an appropriate site for therelocation and expansion of its existing aging municipal sports and recreational facilities. Different proposals have been considered. Atthe material time, the matter was the Hub proposal location. [44] Studies and reports were prepared for council, among them, three by Colliers dated December 2016, April 2017, and July2017 ("Colliers Reports").

Elliot Lake [45] I considered that the City is 714 square km in area (279.2 square miles). [46] There are two commercial areas in the developed part of Elliot Lake, one near Highway 108 and one further north closer toCity Hall. [47] The Colliers report of April of 2017, filed, described the population in 2016 as 10,741 residents with a median age of 57 andmedian income of $25,288. [48] Patrie states that Elliot Lake has been trying to revive its economy since the 1990s and formulating plans for long termeconomic health. [49] Patrie suggests that Elliot Lake is unique in features, position and size and ought to be considered in whether the Hub wouldprovide a particular advantage to him.

Patrie however has submitted that the economy of the city was diversified after the mines closed toa retirement community and tourist destination. [50] As such, the City by Patrie’s own evidence is to view the City as a retirement community and tourist destination in thecircumstances. One of the goals of the Hub was to attract more tourists/Hub attendees to the area. Council [51] The council has 7 elected members including the Mayor. The majority of the council members have full-time employmentand are not full-time council members.

Patrie was one of six (6) elected council members elected on a council of 7 members, includingthe Mayor.

Patrie’s Interests and Position within Council at the Time [ 52 ] Patrie grew up and has lived and worked in Elliot Lake for over 45 years. [ 53 ] Patrie owns 50 percent of the shares of the corporation called Klover Building Inc. (“Klover”). Patrie’s spouse owns the other 50 percent of the shares of Klover. Klover at the material time owned the real property and buildings of the plaza which was operating as the Elliot Lake Trading Post Plaza (“trading post”). It is located at 14 Oakland Blvd. Klover is the landlord of and leases various areas of the plaza to various businesses.

Klover runs a business known as the Elliot Lake Trading Post (“Trading Post”) in the plaza. Patrie and his spouse are also the officers and directors of Klover. [ 54 ] The business of the Trading Post includes the sale of hunting and fishing licenses and equipment including guns and ammunition. In addition, it includes the sale of tackle, bait, clothing for hunting and fishing, souvenirs, and gift ware.

Patrie describes the Trading Post as a thriving retail destination for outdoor enthusiasts that attracts residents and non-residents, including seasonal cottagers. [ 55 ] It is not disputed that Patrie was a councillor during the relevant time frame. Patrie was first elected to council in 2006 for a four-year term. He was re-elected in 2010 for a further four-year term. He was not re-elected in 2014, however, on November 13, 2017, he was appointed to council to fill a vacancy created by a resignation of a member and he completed the term of that councillor to 2018. He was re-elected in 2018 for a four-year term.

History of Sites Considered [ 56 ] In addition to 151 Ontario Avenue (ultimately purchased by the City), another property was being considered during the process of consideration of locations for the Hub, namely a municipally-owned site located on Highway 108 South, north of Esten Drive (“Esten”). [ 57 ] Colliers was commissioned to conduct a business case study to assist in deciding on a location for the Hub (report of December 2016). [ 58 ] A second study (report of April of 2017) was commissioned to expand the considerations to four different sites.

In the end, 151 Ontario Avenue was being presented as the most commercially viable option, with Esten as a municipally-owned alternative. [ 59 ] Esten would later cease to be an option and Council commissioned a third report from Colliers (report July of 2017) to compare 151 Ontario Avenue with the Centennial Arena property (“Centennial Arena”) and the existing Civic Centre property. The report presented the Civic Centre as unfeasible. [ 60 ] The City at the time owned a property directly north of the plaza and proceeding northward along Ski Hill Road.

Patrie agrees that the Ski Hill Road property was not considered a site for consideration in the Colliers Reports. [ 61 ] The record reflects that the Ski Hill Road property had been considered in the past, approximately a decade or more before the events in issue, for a different proposed project known as “Destination Elliot Lake”. The Destination Elliot Lake proposal included much more than recreational facilities.

It also included condominium developments and four-season tourist attractions. [ 62 ] The Ski Hill is located on Ski Hill Road and is half of a km east of the intersection of Oakland Blvd and Ski Hill Road. The plaza is located at 14 Oakland Blvd. [ 63 ] Around October of 2017, before Patrie was appointed to the vacancy he filled for the 2014-2018 term, Council was considering and/or discussing the purchase of 151 Ontario Avenue.

Hub Project [ 64 ] As stated, for some time, the City was planning the construction of a multipurpose sports complex to replace and augment aging recreational infrastructure. [ 65 ] The Hub project itself was proposed to be a multi-use building that included a hockey arena, gymnasium, multi-purpose rooms, aquatic centre and other facilities. It was ultimately proposed to be a 30 to 40 million dollar project expecting to bring 16,000 people annually to its location.

The precise location for the Hub in its form as described above had been a matter before council starting on or about 2016. [ 66 ] The City had experienced a tragedy with the collapse of the Algo Centre Mall on or about June 23, 2012.

As a result, that vacant site, namely 151 Ontario Avenue, which was in the City’s downtown core, which was owned privately, was one of the potential sites being considered by council for the Hub. [ 67 ] The idea of a recreational complex itself in general for Elliot Lake was certainly not new, but it is clear that the Hub project was distinct from the defunct Destination Elliot Lake Project . General Comment Regarding the Allegations [ 68 ] The acts complained of regarding participation in meetings and voting occur over a time frame.

The acts complained of pertaining to lobbying and influencing are layered on top of the time frame regarding the participation in meetings and voting acts complained of. The Appointment of the Integrity Commissioner [ 69 ] In 2017, the Council pursuant to bylaw 17-44 appointed Robert Swayze as integrity commissioner and entered a contract with

Mr. Swayze. [70] Patrie submits that the Applicant IC, Expertise for Municipalities (“E4M”) was not a properly appointed integritycommissioner by council bylaw and had no contract for services with the City of Elliot Lake when it undertook its work, and thereafter abylaw was inappropriately retroactively passed in September 2019.

Patrie raises issue with E4M’s standing, the appointment of E4Mretroactively, the validity of the bylaw that retroactively appointed E4M, the process undertaken/application of the Act and thequalifications of the Integrity Commissioner (“IC”). [71] I reject the arguments of Patrie. [72] The record clearly reflects that Council was on or about February of 2019 contemplating changes to IC services and workingon a protocol. In my view, it should not be ignored n the analysis that the clear expressions of Council at the time included that thecontemplated model would include the appointment of E4M specifically.

There does not seem to be any recorded disagreement on therecord provided to me at that time when that was raised. Council took steps to approve and adopt a two-IC model at the very least on orabout that time, again which included the discussion of appointing E4M and Cunningham Swan. [73] The record reflects that along the way it was noted that procedural irregularities existed with respect toappointment/contracting of the services of E4M and Cunningham Sawn. Ultimately Council attempted to resolve the irregularities, first,by the passing of a resolution by which Cunningham Swan was approved, and Mr.

Swayze terminated. There was an understanding atthat time that E4M was going to complete any ongoing investigations, that E4M had been retained by a letter of engagement and wouldbe discontinued in that fashion. Thereafter, a bylaw was enacted on September 23, 2019, Bylaw 19-49, to appoint E4M retroactive toFebruary 11, 2019 and to terminate their services effective June 10, 2019. Patrie and two other councillors voted against same. [74] Bylaw 19-49 refers to it being made pursuant to s.223.1 of the Municipal Act, 2001, S.O. 2002, c. 25, which came into forceMarch 1, 2019.

The bylaw appoints E4M retroactively to February 11, 2019, assigns E4M the functions the functions set out by thisAct, and ratifies any agreements/contracts with E4M. [75] I agree that it is within the power of the Council to pass bylaws to appoint integrity commissioners and they may do so:Municipal Act, s. 223.1. The authority exists at common law to pass bylaws retroactively.

I agree that the case, Burlington (City) v.Burlington Airpark Inc., 2017 ONCA 420 does not alter same or require a statute to permit same and is distinguishable asargued by the Applicant. [76] The concept of appointment of integrity commissioners is certainly not new and Patrie’s own evidence refers to the history ofappointment of same by the Council prior to changes to the Municipal Act, namely, Mr.

Swayze. [77] There is nothing that prohibits appointments of integrity commissioners both before and certainly not after March 1, 2019. [78] At the time the bylaw was passed, s. 233.1 of the Municipal Act was in effect. [79] I agree that this argument presents as a technical argument being made by Patrie and further, that it is not being made in theproper forum. [80] Further, I agree that there is no requirement for a written services agreement for the appointment to be lawful and binding:Municipal Act, s. 223.1; s. 9 and s. 223.3(5). Municipalities have the rights of a natural person.

A natural person may enter into oralcontracts. [81] I considered that past actions can be confirmed through bylaws: Jackson v Vaughn (City) (2009), 59 MPLR 4th 55, paras. 190-191. The bylaw confirmed the retainer of E4M for the time frame that covered all their services including the investigation that led to thewithin application. I don’t characterize the actions of Council as intending to apply the Municipal Act retroactively. [82] Bylaw 19-49 has not been invalidated. Retroactively passed bylaws are effective until such time as they are invalidated.

Thebylaw explicitly sets out its application is retroactive. [83] The time for challenging the bylaw has expired: s. 273(5) of the Municipal Act. [84] An application to quash a bylaw must include the municipality as a party, which highlights Patrie’s argument as a collateralattack. [85] In Madger v. Ford, 2013 ONSC 3806 (Div. Ct.) on which Patrie relies, the situation was such where there was noauthorization or other process to deal with invalidity of the decision in question. That was not the case here with respect to the bylawenacted by council and/or the exercise of power by the IC.

Patrie has objected to this bylaw since it was made September 23, 2019 andIC actions since the complaint came to his attention. He voted against the bylaw. He took no action on the validity of the bylaw. He tookno action regarding actions of the IC, despite evidence of having a conversation with E4M’s contact, Ms. Lovelace. He had legalcounsel at the time who he was consulting.

These are distinguishing facts. [86] This is not an application to invalidate a bylaw, or judicially review actions of the IC, and not the forum for this court todecide same. [87] Further, I considered case authority that in my view emphasizes that when the subject legislated upon is clearly withinmunicipal authority (in this case, they had the power to appoint an integrity commissioner both before and after March 1, 2019) and theobjection is merely to the mode in which the particular power has been exercised, and that defect can be remedied by further or differentaction, a by-law should not be quashed unless it is clear that the method adopted cannot be supported in any view of the matter; when amistake had been made in perfect good faith and with an honest purpose of obeying the law, although unintentionally deviating from itsstrict formal observance, where the objection was wholly technical and nothing had occurred to create a suspicion of unfair dealing, and

there was no reason whatever to believe that the result of the whole proceedings had been effected: Re Butterworth and City of Ottawa,(1918) (Ont. C.A.) 45 DLR relying on Re Huson and Township of South Norwich (1982), 19 A.R. 343 page 350, 351. [88] While I can agree that it appears that matters before this Council were dealt with clumsily, again, this bylaw has not beeninvalidated, and does cover a period during which the IC can be appointed pursuant to the named

section which covers the complaint thatresulted in this application, which was formally made after March 1, 2019, namely March 29, 2019, during which the IC was performingin accordance with the Municipal Act named

section in effect.

The Court should not interfere and defeat the general aim and object oflegislation because of an immaterial error when it is not the legislative intention that non-compliance with the particular provision of thestatute should render proceedings abortive: Re Butterworth relying on Rex v McDevitt (1917), (ON SC), 39 O.L.R. 138.140. [89] Even if there had been an appropriate application to quash the bylaw, and/or the bylaw is capable of being quashed, theapplicant states that s. 8 of the Act permits not only an IC to make the within application as set out herein but provides standing to aperson demonstrably acting in the public interest.

There is no definition regarding who this category includes. I noted that this

section ismuch broader than the previous section. It makes common sense that as an IC, it was the task of E4M to conduct an independentinvestigation having regard for the public interest as mandated by the Act and could arguably on a factual basis fall within such acategory. However, the integrity commissioner has its own specific category enunciated in the Act and are paid for their services. Thatbeing said, I have rejected the argument of Patrie as to standing for reasons stated, and this is not an issue therefore that I have to decide.

The Steps of the IC [90] The complaint was first vetted by Peggy Lovelace (“Lovelace”) who was with E4M, the IC. [91] Mayor Marchisella (“the Mayor”) filed the complaint. He completed the document himself and gave it to the clerk to give toE4M. As part of the investigation into the complaint he was interviewed by Mr. Sean Sparling and Mr. Mike Kenopic. The interviewwas in person. There was only one interview.

He was elected mayor in 2014, and this was his second term as mayor at the relevant time.Three members of council had resigned throughout the 2014 to 2018 term, and as such, he was directed to contact the individual who wasnext on the voter’s list to determine interest in filling the position. With respect to one of the resignations, Patrie was next on the list. Hewent to Patrie’s store to speak to him in person about filling the vacancy. He was interested and as a result he was brought on to fill thevacancy.

The Mayor has known Patrie for several years. [92] Complaints that can be subject to an application are ones that are made within six weeks of the Applicant becoming aware ofthe alleged contravention: s. 8(2) of the Act. It can be more than six weeks after if there was an application to an IC for inquiry, the ICconducted an inquiry and completed the inquiry within the time frame permitted by the Act (namely within 180 days). The applicationmay be made within six weeks from completion. The complaint was made March 29, 2019, investigated thereafter, and reported on byfinal report dated September 16, 2019.

The application was filed October 16, 2019, by the IC which was within six weeks of the finalreport/completion of the inquiry by the IC. [93] Lovelace contacted and hired Investigative Solutions Networking (“ISN”), a branch run by Sean Sparling (“Sparling”), aformer deputy chief of police for the Sault Ste. Marie Police Services, who had experience investigating serious crimes. Sparlingdescribed it as being close to an independent contractor relationship. He had previously done some investigations for E4M, three or fourby that point.

All the investigations Sparling had done for E4M have been municipal type investigations. [94] ISN is a large investigative company comprised mostly of retired major crime investigators. Sparling opened an ISN office inSault Ste. Marie in August of 2019. It operates separately from E4M. [95] Lovelace was Sparling’s direct contact for E4M. He held the case management role and had several investigators working forhim. [96] I do not find that the investigator lacked skills and training to investigate the complaint.

In addition to his said previousemployment, Sparling has a municipal manager level three certificate, the highest level, attained through training at the FBI InternationalAcademy, and through his education and experience with the Sault Ste. Marie Police Service. The accreditation is related to municipalmanagement governance. Sparling has a master’s degree in policing and security, a large component of which was governmentgovernance and leadership in the public sector.

Prior to the Patrie investigation, he had not undertaken any Municipal Conflict of InterestAct investigations, however, he had been involved in municipal corruption investigations related to elections. He has done severalmunicipal investigations. At the time he was also involved in doing some Occupational Health and Safety Act investigations for the City. [97] The record of the steps reflected in the evidence do not reflect that the IC stepped outside of the boundaries of his role, whichwas to investigate and provide the results of the investigation regarding the complaint.

The report indicates that Sparling conductedinterviews regarding all complaints of several people and obtained various documents/information to attempt to corroborate allinformation received during the course of the investigation. [98] In fact, ISN/Sparling presented report that was 942 pages, four volumes. It includes hours of transcripts of interviews andsome video footage. [99] Before Sparling was retained by E4M, he and Lovelace spoke about his background. There were also meetings.

Hisunderstanding was the E4M retained independents for the larger more complex investigations and that they have 50 to 70 municipalitiesin their contract. As such, they stayed on the consultant side and outsourced for many of the investigations. [100] Sparling had another investigator assisting him with the within investigation, namely Mike Kenopic. [101] Sparling was not told how to do the investigation and there is no suggestion on the record that same was required. Further, hedid from time to time consult Lovelace on the intricacies of the Act, while he and Mr. Kenopic conducted all the investigations.

[ 102 ] Lovelace was kept apprised as to the status of the investigation but was not involved in the investigation or the findings. [ 103 ] Sparling had discussions with either Lovelace or Mr. Paul Cassan for the purpose of retaining Jason Naccarato because Sparling had conflicting positions from interviewed parties on the whether the value of the plaza property would increase, and he felt an expert was required. He was not an expert on such. Mr.

Cassan was counsel for E4M at the time. [ 104 ] Patrie has not established a foundation that would draw a conclusion that the IC was confused as a result of dealing with multiple complaints at the time or that he neglected his training or experience during the investigation. [ 105 ] Sparling completed the investigative report and provided it to E4M who was viewed as ISN’s client. The initial report was a draft to determine if E4M wished anything else from ISN before finalizing the report. Nothing however changed in the final report regarding the findings. The findings remained the same.

The report, the substance of it, reflects his investigation findings.

Lovelace as the consultant along with counsel were involved in preparing the report, namely with respect to the format, and legalese. [ 106 ] There is nothing to indicate that Sparling and/or any other investigator was unduly influenced by anyone or did not act independently on these facts. [ 107 ] Further, I do not find that the report is flawed or replete with errors, and even if it can be said to contain some errors, those errors Patrie refers to do not rise to the level of discounting the report to having no weight and/or meaningfully affecting its credibility and/or reliability given the other evidence filed in the record, a significant portion of which is confirmatory of the facts alleged in the report.

As one example, Patrie at his cross-examination of Sparling seemed to take issue with Sparling’s wording that Patrie voted on the purchase of the property. There was more than one motion dealing with same.

Patrie in fact voted at the December 2018 meeting on the matter concerning the purchase of 151 Ontario Avenue, and participated in the open session at the March 2019 meeting which dealt with the same matter, namely the purchase of 151 Ontario Avenue. [ 108 ] It is clear that Sparling attempted to go beyond simply accepting witness statements and looked for corroboration. [ 109 ] I agree that the fact that the retroactive bylaw terminated E4M as an IC does not mean that they were not permitted to complete work that they had already been retained to do.

I agree that it would have made no sense to go back and retroactively confirm their appointment if that was intended to be the

interpretation. E4M was the IC for the relevant time frame. [ 110 ] There was no legal authority presented that provides the E4M cannot bring the within application because certain provisions of the Act came into force a few weeks after it was appointed or because they made inquiries into past events.

If the complaint is made on time, the IC can investigate: Municipal Act, s. 223.4.1. [ 111 ] By nature, investigation of complaints involves assessing past actions leading to the complaints. [ 112 ] The appointment of an IC is not a new concept and the role and the Act provisions/prohibitions have existed for some time to address complaints to which the Act refers. What is new is the category of applicants. [ 113 ] Further, s. 8(6) of the Act specifically permits applications regarding contraventions within six years of the anniversary date of the alleged contraventions.

I find that the issue of category of applicants is being conflated by Patrie’s argument with what is permitted be subject to application. [ 114 ] There is nothing meaningful on the record establishing that the IC’s actions failed to comply with the new provisions of the Act which is what they would have been required to do as and when laws change. Sparling followed a prepared integrity commissioner protocol. Sparling read the Act , read some cases on CanLII, received the E4M training index and trained his entire team on conducting E4M investigations.

He also consulted Lovelace with respect to intricacies of the Act . He had discretion on how to conduct the investigation and who to interview. Sparling interviewed many people and all of the key people. He did not rely solely on witnesses that were being suggested by either the Mayor and/or E4M. He did not rely solely on witness statements of fact. [ 115 ] Patrie was given a written notice that he was the subject of a complaint prior to being interviewed. He was interviewed regarding the complaints he was making as complainant and as respondent to the complaint made against him.

He was interviewed regarding conflict of interest and regarding code of conduct. Patrie had made his own complaint involving the 151 Ontario Avenue purchase. The questions Sparling was asking were clear and Patrie presented as voluntarily responding to the questions asked and on cross-examination indicated that everything he told Sparling was true.

There is no indication of pressure or trickery or oppressive conditions during the interview which was recorded in its entirety. [ 116 ] In addition, any complaints as to the fairness of the investigation are not the subject of the within application either nor the forum for same. [ 117 ] As to Sparling’s findings. Unsubstantiated or not, as to contravention of the Act , those are issues for the Court to decide. The Court has received more than Sparling’s findings in evidence and has considered all the evidence.

Issuance of the Application [ 118 ] The application before this court was filed October 16, 2019, well after authority was established by the Act , for same to be brought by an Integrity Commissioner. The timing of when the IC was appointed and for what duration does not affect this fact. Pecuniary Interest [ 119 ] A pecuniary interest is a financial interest, an interest related to or involving money. [ 120 ] The evidence establishes that Patrie and his spouse own interests in Klover and Klover’s assets includes the plaza and the

Trading Post. I am satisfied that the plaza is in very close proximity to Ski Hill Road/Oakland Blvd area property, the municipally- owned property that Patrie is alleged to have had a preference for and was lobbying for in this case for the Hub. Photographs and maps of the area were filed and marked to denote the locations of the properties in question in this case. [ 121 ] Mr.

Jason Naccarato (“Naccarato”) is the CEO of Northstar Consulting (“Northstar”) and was retained to provide an asset valuation report to the Integrity Commissioner to assist in determining what if any pecuniary interest, direct or indirect, would arise for Patrie if the Hub was located in the Ski Hill Road/Oakland Blvd area on the municipally-owned property there. He was retained by Sparling. [ 122 ] Sparling indicated that Naccarato was involved to provide an unbiased assessment as to what positive impact if any the location of the Hub would have if placed near the plaza.

Even without the Northstar report prepared by Naccarato, Sparling stated that he would still have reported Patrie as having violated the Act . The Northstar report provided a higher level of confidence of his assessment. [ 123 ] Naccarato’s report amounts to opine that Patrie would have a money-related connection.

The plaza and Trading Post would be in a zone of convenience if the Hub was placed there. [ 124 ] Naccarato’s report was the only expert report received by the Court. [ 125 ] Naccarato has a mechanical engineering degree, a master’s degree in business administration, and a project manager professional designation.

He has also held considerable real estate holdings for several decades and held employment in the automotive sector. [ 126 ] The asset valuation report, dated September 4, 2019, was his first time providing a report of this nature to a municipality, but he had prepared many such reports prior for business developers, which included writing applications for provincial and federal government funding applications, part of which included business forecasting, meaning, the value of and return on the investment. [ 127 ] Naccarato was provided with copies of two of the Colliers Reports, background information about the file, and the address of the plaza.

He reviewed the Colliers Reports for background information that he required to do his report. He then did his own research into the market, the businesses, the plaza itself, and the stakeholders that would have an impact on the report. He could not confirm whether he received the third Colliers Report of July of 2017 but agreed it was not referenced in his report. The mention of the two reports was to indicate the source of the information being referenced. The scope of his work identified reviewing two Colliers Reports.

With respect to the Colliers Report of July of 2017 and 255 Highway 108 not being a recommended site, Naccarato indicated that three prospective sites had been identified to him and his analysis was based on same. I find it matters not if Naccarato had the third report, as the request was to determine what if any pecuniary interest may arise for Patrie if the Hub was placed near the plaza. [ 128 ] Naccarato did not consult stakeholders or citizens of Elliot Lake in preparing his report. However, Naccarato was familiar with Elliot Lake. As such, the criticism of Patrie of same, is not meaningful in fact.

Further, there is no evidence that any of the other stakeholders would offer any further meaningful consideration over the ones made by Naccarato in his analysis. Nacarrato’s report speaks directly to the zone of convenience and what is there, in analyzing pecuniary interest. The analysis I do not find to be flawed as such. [ 129 ] Naccarato has opined that increased revenue would be generated by a multipurpose community hub if it was located near the plaza.

Part of same would be caused by tourism, people coming into the City, which would be an important factor for retail-based tenants. [ 130 ] Naccarato agreed that the plaza is situated on Highway 108 coming into Elliot Lake and agreed that people coming into Elliot Lake would pass same depending on how they entered the area, however, his report refers to proximities and the proximity of the final destination to the plaza itself.

In other words, yes, tourists could come in that way, namely Highway 108, and cars would have to drive past it, but once in Elliot Lake and including residents, it would depend on where they are located. This makes sense to me. [ 131 ] Tourism would increase the economics no matter the location of the hub, the economy as a whole, that is accepted, and accepted by all it seems. Naccarato reiterated that he agreed that a multipurpose community hub would benefit the entire community, no matter where it is located.

The rising tide in people would raise the economy, but in respect of the proximity of the site, there would be greater impact to the plaza if prospective site near the plaza in his report was chosen versus the other sites. [ 132 ] Naccarato did not agree that expressing that 151 Ontario Avenue was the superior choice for the Hub as being outside of the scope of his report and he believed that giving the recommendation was part of the scope.

Giving his recommendation as to which site would add the most value to the stakeholders is part of the report (value and return on investment). [ 133 ] He agreed that all three sites he considered were within a 1.5 km radius. However, he indicated that a “zone of convenience” is normally 200m, an area in which one has the ability to effectively leverage destination customers. Naccarato opined that the Ski Hill Road/Oakland Boulevard location was within the zone of convenience for the plaza.

In analyzing zone of convenience, it is also a factor to consider the actual convenience, not just the metres, including the logistics and any barriers to get to the site. [ 134 ] On his analysis regarding existing tenants’ benefits, Naccarato did not speak to Patrie. He was provided with information that the plaza was a multi-unit commercial space with multiple tenants, some general information as to what was there, and then he researched the specifics. Naccarato was not aware of the details regarding the leases in place at the plaza at the time of preparing his report.

That being said, I find that Patrie’s long term leases do not diminish what the objective elector views nor was it necessary for Naccarato to get into details of leases. [ 135 ] First, the information regarding long term leases is not public. Next, leases can and may be terminated.

Next, the focus on this facet of the argument ignores the other potential pecuniary interests identified by Naccarato, which is not limited to simple increased revenue arising from Klover’s leases, such as the potential increase in the value of the real property itself that it owns, and the increased traffic in the area for retail sales for the Trading Post, a retail business Klover operates. Patrie has not provided or referred to expert

evidence to the contrary, only his evidence of what he or other unqualified persons think. [ 136 ] It was suggested to Naccarato that “building two” in his report ought not to have been considered as it was not owned by Klover and the scope of his work was to determine the potential benefit to the plaza. He did not perform a title search of the properties.

He indicated that he could not answer that without having other questions answered for him but was clear to state that even if it was excluded, it would not mean no additional value would accrue to the Klover-owned properties putting the Hub in close proximity to the plaza. It would not impact the effectiveness to earn revenue based on the plaza and its location. His analysis concerns the property’s ability to earn revenue and that would not change if “building two” was excluded.

I accept this. [ 137 ] Further, Naccarato indicated that titles of properties are dynamic as they are transferrable and the report is to the plaza (not ownership) and the land it is on and its ability to earn revenue, the assessment of the plaza with its surroundings economically and enablers that are around. This also makes sense to me. [ 138 ] Patrie states that the Trading Post does not sell hockey or other sport related or confectionary items, that those are sold elsewhere in the downtown core and claims there is no room for expansion of other merchandise at the Trading Post.

I do not accept this bald statement and it ignores that some of the existing merchandise would coincide with merchandise visitors to the Hub may seek. In addition, on cross-examination, Patrie did admit the Trading Post might sell and/or consider selling pool related items, such as pool noodles. The point being, the possible expansion of merchandise to coincide with the intended Hub facilities. [ 139 ] Sparling expressed that Patrie’s views that the Trading Post did not cater merchandise to clientele that would attend the Hub was a simplistic view of benefits to the location behind the plaza.

After reviewing the evidence, I agree and did not interpret this to be a suggestion/comment outside of the scope of his work and/or that he was attempting to opine on the issues that Naccarato was retained to provide. [ 140 ] The Mayor was familiar with the Collier Reports. He agreed that they spoke about what the Hub would create in the sense of increased traffic and tourism for the benefit of the entire community, eco and sports tourism.

An intention of the project would be to attract people from the surrounding area and beyond. [ 141 ] The Mayor felt the hub would be an economic driver for sports tourism, to house large sports tournaments, and provide services all under one roof, which would increase traffic. The idea was to put all sports complexes (they had three separate small ones at the time) all under one roof, meaning hockey, figure staking, basketball, curling, and the ability of hosting conferences, like trade shows.

There was the potential for a new hotel as a separate project also to enable housing larger and more tournaments. [ 142 ] The Mayor agreed that no matter where the hub was placed in the City that it would benefit the community. The Mayor was asked about Patrie’s personal benefit that he would stand to gain from the location he was supporting, and he stated he was of the opinion that if you see more traffic in a busier renewed area, you would be able to increase your rent for the plaza, and property values would increase. Patrie also had a vacant property in the area.

He disagreed that Patrie used the vacant property as a snow dump and he had observed a trailer to be stored there by Patrie to run a children’s Christmas store to buy their parents presents where everything was five or ten dollars, and that it was leased out for election campaigns and various other office spaces. The Mayor’s schooling was in business and economics, but as with my comments concerning Patrie, he was not an expert commercial property valuator.

His evidence however was helpful to provide more information regarding Patrie’s interests and background on the intended goals of the Hub. [ 143 ] Naccarato indicated that the Trading Post would benefit because it sold snacks, drinks and souvenirs and it was all the Trading Post’s inventory that was relevant for his analysis. The Northern Ontario tourism sector is diverse and includes people interested in fishing and hunting, who may wish to take advantage of that if visiting the Hub. I accept this. [ 144 ] Further, the proposed project is not limited to just a gym and swimming pool.

It would involve an arena and ice rink which it is not unreasonable to conclude could draw more arena/ice rink related sports/events to the community, along with players, spectators and/or parents and/or coaches etc. [ 145 ] Naccarato agreed that those coming in may have to drive by the plaza even if it was located at 151 Ontario Avenue, but again, Patrie’s criticism ignores the “zone of convenience”. It also ignores bus travel and presumes solely domestic vehicle travel. It ignores foot travel in a zone of convenience.

These types of travel are reasonable considerations in analyzing the interest. [ 146 ] Naccarato did not agree that construction would cause an economic loss and stated it would create an economic aid, including the creation of construction jobs, more people in the area. The construction would take time and these workers would be potential customers as well that would positively affect the income approach. One would have more customers with construction on the site as opposed to on vacant land.

Naccarato did not agree that customers would be dissuaded from attending the restaurant if construction was going on near the plaza. That position is also not unreasonable and/or disproved by other expert evidence. [ 147 ] Naccarato was quite clear in stating that there are several income opportunities to the plaza that building near it brings. The income generation opportunities are vast to the existing tenant mix in respect of each of them.

It is based on the ability to earn revenue for the plaza, and it has multiple ways to earn. [ 148 ] Again, Patrie did not file an expert report by someone qualified to contradict or to provide critique of the findings of Naccarato.

Patrie has not filed evidence to the contrary, only his evidence of what he thinks and refers to evidence of what other unqualified individuals think. [ 149 ] Patrie did not challenge the expertise of Naccarato, only the alleged weaknesses, analysis/process, and conclusions in the report, and again, did so without a qualified expert. [ 150 ] Patrie did file the final report of 2009 for the Destination Elliot Lake proposal. In it, it is clarified that the focus was the base of the area to integrate with the Ski Hill itself, the Ski Hill as a co-location.

The report, a report Patrie sought out, clearly articulates site development challenges with the location included but not limited to terrain and environmental concerns. In addition, it reports that the

area is not serviced with water, sewer or gas which would represent costs. In fact, the location received a zero rating meaning, prohibitive and/or significantly high cost to develop. The report findings certainly do not align, in my view, with Patrie’s position that 151 Ontario Avenue would cost the taxpayers more and/or waste tax dollars for the Hub development, which he referred to as his reason for not supporting the purchase.

While the capital cost of 151 Ontario Avenue was assessed to be high, it was determined to be assessed as beneficial for long term goals, and it certainly was not assessed as cost prohibitive. While I appreciate funding is always an issue (whether one is going to receive same or not) that must be kept in mind with spending tax dollars, that would always be the case on the matter of the Hub, and Patrie certainly was not presenting then as though funding would never become available to support his position. He pointed out that the government often preferred a shovel ready site with funding applications.

Patrie and Cyr both brought this up at Council. [ 151 ] The City would have to spend according to the Destination Elliot Lake Report, that Patrie filed, a significant prohibitive amount of money before the Ski Hill Road area property would ever be shovel-ready, with no water, sewer or gas service and potential environmental concerns that would have to be remediated, not to mention blasting.

The query that came to my mind was… would considering development of that site to shovel-ready status not put the City in a precarious position economically, if this was Patrie’s concern and/or belief of government preconditions for funding? As such, this position just did not make sense to me. Patrie at an open Council meeting after the IC’s report was made public admitted that he was lobbying for this location but that anything he stated was for the benefit of the community as a whole.

Interactions with Councillor Cyr prior to the December 19, 2018 Council Meeting Background re November 15, 2017 [ 152 ] The events of November 15, 2017 are important to understand when the issue of pecuniary interest arose for Patrie. [ 153 ] The “City Hub Committee” met November 15, 2017, prior to the November 27, 2017 Council meeting. At this committee meeting, the committee decided that the Skill Hill Road/Oakland Blvd property would be submitted as potential sites for the Hub at this upcoming Council meeting. [ 154 ] The Mayor had been the chair of the Hub Committee.

The discussion included needing a location for the government funding application as they could not apply for funding with no location. Realizing the process would take a few years, they knew they had the opportunity to change locations in the future. They just needed a location for the application to get it started. He confirmed that there were some potential environmental concerns regarding the Centennial Arena property known at the time, and that the Committee decided to suggest looking at the feasibility of the Ski Hill area. [ 155 ] Patrie participated in this committee meeting.

He physically attended the meeting. He did not recuse himself or leave the room. He participated by going, remaining present for the entire meeting, and by his own admission at the very least agreeing with Councillor Finamore at that meeting that the Hub should go on the Ski Hill Road property. [ 156 ] In my view, “agreeing” does amount to supporting the idea openly at this meeting. I find Patrie’s affidavit to present as seeking to diminish his involvement at this meeting.

Whether it was a diminished role, nonetheless it was still involvement. [ 157 ] It matters not that he did not bring up the topic and the further point is that this begins the renewed consideration of the Ski Hill Road property. Patrie at the very least was aware this suggestion would be raised before the November 27, 2017, Council meeting and that this committee’s report was going to be brought forward at the meeting.

Background re November 27, 2017 Council Meeting [ 158 ] At this meeting, it is true that the evidence supports that the Centennial Arena property was put forward as the proposed site for the Hub by Patrie, but I agree proper characterization of same based on the record is that this was ultimately decided for the purpose of making a funding application. Locating the Hub at the Centennial Arena property was not viewed as set as the chosen site for the proposed Hub and the vote in favour of this site was to attempt to secure funding for a Hub.

It is obvious by the language used by the participants including Patrie and the Mayor, which included a statement “there is an opportunity to change sites” after the fact, and other comments to the effect that “they needed a site to put in the application”. The Centennial Arena property was presented as the “place holder”.

The evidence overwhelmingly indicates that the time for the application for funding was running out and a site had to be selected for purposes of submitting the application for funding before the deadline and that it was understood that the location could be changed and reconsideration later.. [ 159 ] The Mayor stated that both he and Patrie voted in favour of that site. They were at the deadline for putting in the application and needed to select a site for the application. There was a timeline by which an application had to be filed with the Liberal government. Time had run out.

They needed to place a location on the application. It was considered that if circumstances changed in the future that other properties could be considered and changed with further paperwork. [ 160 ] The Centennial Arena site ultimately was not targeted despite the approved funding application. Other sites were considered before this council meeting and continued to be after. [ 161 ] I do not accept Patrie’s evidence that he believed that the selection of Centennial Arena property for the application was the final conclusively-decided location.

The position is contrary to the actions he took thereafter and the discussions he had post November 27, 2017, including but not limited to his admission that he asked CAO Gagnon for a copy of the Destination Elliot Lake 2009 report. It would make no sense to do so, if a final decision had been made that the Hub would be located at the Centennial Arena site.

There would have been no reason to have the other conversations he had with the various other individuals about alternative locations, some of which he admits to, that I will address later in this decision. [ 162 ] Moreover, again, regardless of Patrie’s views, it is clear that at this stage, that the Ski Hill Road property was not off the table as Centennial Arena was selected as a “place holder”.

December 19, 2018 Council Meeting [ 163 ] At this time, and at this meeting, 151 Ontario Avenue was still a location being contemplated by Council as a potential site for the Hub. [ 164 ] At the December 19 th , 2018 meeting, there was a motion to purchase 151 Ontario Avenue. The issue was put to a vote. A tie vote resulted which translated to the motion being defeated. The Mayor believed there was a tie vote because Councillor Cyr did not participate. The Mayor voted in favour. Patrie voted against the motion. At this time, the Mayor had no concerns regarding Patrie’s participation in the meeting.

I take no issue with this, as the Mayor’s concerns developed in February of 2019 following a conversation he had with Patrie during which he states Patrie raised the idea of placing the Hub behind/near the plaza. [ 165 ] Patrie unquestionably voted at the December 19, 2018 Council meeting against the purchase of 151 Ontario Street. Unquestionably, the intended purpose of the purchase was to locate the Hub on this said property. [ 166 ] Patrie in his affidavit presents as still believing at this time that the selection of Centennial Arena was conclusive. This belief just did not make sense to me.

Clearly there was a motion that was upcoming on the topic, and he knew that. He even by admission went to see Councillor Cyr prior to the meeting where the topic was discussed regarding his knowledge of the upcoming motion, albeit he states only because he had just participated in a conflict of interest seminar.

It is just very difficult for reasons already stated to believe that he truly believed this about the Centennial Arena site or could in such circumstances given these facts. [ 167 ] In fact, Patrie appeared to want to remain married to his statement that the purpose of placing Centennial Arena in the funding application was because it was selected as the final site when he himself used the words “for application purposes” during the meeting. To explain why he used these words, he stated… “You’re trying to convince four people to vote with you. It’s politics.

In order to get what you want, you have to convince people to do what you want them to do. You’re only one vote”. The implication is that he did not mean what he said when he used those words which is an issue for credibility. [ 168 ] Patrie prior to this meeting is said to have heavily implied to Councillor Cyr who was a “yes” vote for the purchase of 151 Ontario Street that Cyr had a conflict of interest because he was involved in a class action lawsuit against the former owner of the site.

Cyr states that he was intimidated by Patrie into recusing himself. [ 169 ] Sparling states that Cyr said that everyone knew what the vote count would be in advance of the meeting and that it would carry by a margin of one, but that Patrie insisted to Cyr that he had a conflict of interest and that Cyr felt bullied and intimidated by Patrie.

Patrie implied he would file a complaint if he did not declare a conflict. [ 170 ] Patrie’s evidence presented as contradictory in that he in his own affidavit denied the actions detailed in paragraphs 14 to 21 of the Sparling affidavit but then on cross-examination admitted that he believed Cyr had a conflict of interest, that he recommended that Cyr go and get legal advice, that he stated that he told Cyr he should go see the integrity commissioner for a ruling prior to him attending the meeting because of the said lawsuit, and that Cyr had direct and indirect pecuniary conflict of interest because he, his wife, and his daughter were all named in the lawsuit. [ 171 ] In his affidavit in paragraph 33 Patrie acknowledges that he knew Cyr was a party to a class action suit relating to 151 Ontario Avenue.

It was a class action suit related to the former mall and the vendor was the owner of the mall at the time the event occurred that gave rise to the class action suit. He states that he also knew that Cyr was the owner of CC Bistro next to 151 Ontario Avenue at about that time. Patrie admits he spoke about the proposed purchase with his fellow councillors but denies taking the actions set out in paragraphs 14 to 21 of the Sparling affidavit under the heading Patrie manipulates vote attendance.

Patrie states that any duty to disclose a conflict of interest was that of Cyr who could have sought independent legal advice from the IC or otherwise before acting. Patrie states he opposed the purchase because: 1. The decision November 27, 2017 was to select Centennial; 2. Staff was directed to proceed to seek funding for Centennial in early 2018 and; 3.

As a business man he was aware of the City’s precarious economic position and it was not prudent to purchase using reserve funds. [ 172 ] Sparling expressed that Patrie presented in the interview with him as never introducing the conflict of interest conversation with Cyr. It was presented by him that Cyr just “all of a sudden” decided he was in a conflict of interest. [ 173 ] Councillor Cyr in fact declared a conflict of interest. As a result, the vote was split three-three, a tie vote translating to a loss, meaning a decisive vote resulted.

Without Patrie’s vote, the vote would have been in favour of the purchase, and the purchase of 151 Ontario Avenue would have been made then. [ 174 ] From 2014 to 2018, Councillor Luc Cyr, was an elected councillor, his first term. He was re-elected for the four-year term commencing 2018. He has known Patrie for 20 years. He was familiar with the Colliers Reports. [ 175 ] He remembered some meetings. He was present for the November 27, 2017 council meeting. Resolution 524/17 was passed at this meeting to approve the Centennial Arena site as the primary location for the hub. He was opposed to that.

He was in favour of the Hub, just not the Centennial Arena site. Centennial Arena had been partially remediated. Years prior, at the front of that property, there was a gas station there. The property was never fully remediated. As a result, a full review of the land was required to ensure no further contamination, a full environmental assessment. The site in his view was not a shovel-ready site. To his knowledge, he agreed that if a site is not truly shovel-ready, it may impede obtaining funding.

In addition, there was a residential area in behind, which was a negative for using this site. [ 176 ] Councillor Cyr states that Patrie was adamant that the Hub be constructed on the property next to his business, which he had heard from other people. In addition, Patrie had spoken against 151 Ontario Avenue on many occasions in a group setting and he was part of the group. [ 177 ] Councillor Cyr states that Patrie’s statement that he had no conversations with Council members about the Hub after December of 2018 is not true, that he has been in every single discussion of the Hub.

[ 178 ] Councillor Cyr states that Patrie never told him in his own words that he intended to place the Hub next to his property, no private conversation, but that Patrie has spoken about the Hub on multiple occasions, namely every meeting they have had on the Hub on the agenda, and during individual conversations that were had amongst councillors sometimes standing around talking. [ 179 ] Cyr believed that there was an unknown group of people/councillors trying to oppose the City taking control of 151 Ontario Avenue at all costs, despite that the people of the City were in favour of it according to the polls.

Cyr was always in favour of purchasing it. He felt the community could not heal from the mall collapse until something was done with that property. The economy had been depressed since the collapse. He felt the property was a way to get the City growing again.

He was on the site during the collapse. [ 180 ] He agreed that at the November 27, 2017 meeting that it was possible the Hub committee brought forward the idea of the ski hill site as a location for the Hub. [ 181 ] He remembered vaguely Patrie suggesting that Centennial Arena be named as the location for the Hub at a meeting. [ 182 ] For the December 2018 meeting he was not present for the agenda item, namely, to offer to purchase 151 Ontario Avenue. He had declared a conflict.

He left council chambers. [ 183 ] Cyr stated that prior to the December 19, 2018 council meeting, Patrie stopped into his work at No Frills, either the day of or day before, he could not recall the exact date. However, he does remember that it was prior to the meeting. No other councillors had come to see him at his work before, and if they were there it was because they were shopping.

Patrie told him that he was in a conflict with respect to the agenda item of purchasing 151 Ontario Avenue because Cyr was involved in a class action lawsuit related to the property – all mall employees had been placed in the suit after the mall collapse. At first it shook Cyr up a little bit because he had never thought of it in that context. His spouse had worked at the mall and was named also in the suit. So out of caution, he reached out to the IC to verify, which then was Mr. Swayze. [ 184 ] He stated that he was told that he was not in a conflict but out of an abundance of caution, he could declare it. Mr.

Swayze left it up to Cyr to decide. He appreciated that ultimately it was his decision to decide to participate or not. He decided not to participate in the vote because he felt that the opinion he received was not clear, to err on the side of caution. He decided to play the safe card and declare a conflict. There was insufficient time for him to look into it further. It was a difficult decision to declare the conflict because he knew it would mean that a tie would result, and the motion would not pass. He felt bullied and intimidated by Patrie.

Patrie made it quite clear that he was going to be challenged on it, that a report would be filed against him if he did not declare a conflict. Patrie more or less said this to him, meaning he did not remember the exact words, but Patrie informed him that the rules were changing in March, the IC rules, and that there would be a complaint against him. He said other things along the line as follows… “if you want to be a councillor for years to come…you are a good councillor, I would hate to see your reputation be affected”. Patrie made him feel very uncomfortable.

Patrie never indicated that he himself would file a complaint but was letting Cyr know there would be consequences if he participated which to him was

an act of bullying and intimidation. [ 185 ] Cyr agreed that the location of the Hub was an ongoing discussion for many years and that it was possible that Patrie a few times but not every time expressed the view that municipally-owned property be used as the location for the Hub. [ 186 ] He agreed that Patrie expressed a concern over spending taxpayer dollars on the purchase of lands to eventually put a Hub. [ 187 ] Cyr’s evidence does not conflict meaningfully with the IC report at all in my view. [ 188 ] I accept Cyr’s evidence and that Patrie’s actions are properly characterized as interfering with the vote concerning 151 Ontario Avenue, whether it was ultimately up to Cyr to whether to declare a conflict.

His concerns were valid. I accept that he felt bullied by Patrie in the circumstances he described. It was no secret that Cyr was favouring the purchase. [ 189 ] If 151 Ontario Avenue was eliminated from the picture, the door remains open for other locations, and therefore the matter of 151 Ontario Avenue in such circumstances does have the potential to affect the pecuniary interests of Patrie who was at the time a proponent of an area from which he stood to gain. [ 190 ] The defeated motion changed the course of the progress on the Hub until such time as the issue was revisited in March of 2019.

Conversations with CAO Gagnon (“Gagnon”) [ 191 ] Sparling reports that Gagnon recalls Patrie attending his office sometime between December 18, 2018 and March 2019 being agitated about the prospect of the Hub being located at 151 Ontario Avenue; asking Patrie where he would prefer it; Patrie answering “where you wanted to put it ten years ago” referring to the site near the plaza [ 192 ] Gagnon recalled Patrie’s participation at the Hub Committee meeting in Nove

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