Cavalluzzo Hayes Shilton McIntyre & Cornish released a legal opinion today concluding that Toronto Mayor Rob Ford did not have legal authority to cancel Transit City.  The opinion concludes that the mayor does not have independent power to bind the city, and only exercises power delegated by council or specific legislative responsibility.
Also see Pulat Yunusov’s previous post, What can the mayor of Toronto really do?

The Executive Summary of today’s opinion follows:

Throughout the period 2007 to 2010, the Toronto Transit Commission (the “TIC”) and the Toronto City Council (“City Council” or “Council”) received reports, considered, and voted on aspects of what was commonly known as Transit City. They designated four priority projects. They voted funding allocations for these projects. City Council declared Transit City its first priority with respect to transit.

On December 1, 2010, newly elected Mayor Ford, without the approval of City Council, purported to cancel Transit City. He directed that work on Transit City be stopped, and that resources be allocated to other projects as he directed. The TIC followed this direction. On or about March 31, 2011, again without the approval of City Council, Mayor Ford purported to enter into a Memorandum of Understanding (the “Mayor’s MOU”) on behalf of the City of Toronto with the Province of Ontario and Metrolinx, the province’s transportation agency.  Under the Mayor’s MOU, Mayor Ford purported to confirm the intent of the City of Toronto to end Transit City, make alternative transit plans, and reimburse Metrolinx for non recoverable sunk costs associated with the direction of City Council to implement Transit City. There are two major issues with respect to Mayor Ford’s conduct with respect to Transit City. First, he did not follow the proper procedure for obtaining City Council’s authorization to rescind Transit City and develop and approve an alternate plan. Second, he purported to enter into the Mayor’s MOU on behalf of the City of Toronto without City Council’s approval, and, more importantly, appears to have acted on the Mayor’s MOU without first obtaining the authorizations the document itself requires to be operational.

As we further discuss below, Mayor Ford did not have the authority, without the approval and direction of City Council, to:

1. Cancel Transit City;
2. Direct the TIC Chief General Manager to redirect resources away from
Transit City initiatives;
3. Direct the TIC to develop a new transit plan; and
4. Sign the Mayor’s MOU purporting to establish the intent of the City of Toronto to end Transit City and make alternative transportation plans, when Council’s intent to date as established by Council resolutions is to support Transit City.

City Council, of which Mayor Ford is a part, has the authority to do those things. It has not done so. The Mayor has not taken these initiatives for approval to City Council. Under the City a/Toronto Act, the power of the City resides in City Council. The Mayor of Toronto has very little independent authority beyond his role as head of City Council. Unless specific power is delegated to him, the Mayor does not have the authority to speak for the City independently.

Below, we discuss the history of Transit City, with particular focus on the steps taken by City Council to approve and implement the program. We then discuss the municipal legal framework with respect to the authority of the Mayor of the City of Toronto. We conclude by examining the steps taken by Mayor Ford since December 1, 2010 to determine whether he had the authority to do the acts he has purported to do.

Transit City Legal Opinion – Jan 26, 2012

What didn’t attract as much attention is that the claim also included as defendants Arthur Hamilton and his law firm, Cassels Brock & Blackwell LLP,

2. The Plaintiffclaims as against the Defendant, Arthur Hamilton (“Hamilton”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence.
3. The Plaintiff claims as against the Defendant, Cassels Brock & Blackwell LLP (“Cassels Brock”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence…

14. Hamilton is an individual and a lawyer with the Toronto office of the Cassels Brock law firm who, at all material times, was the lawyer for CPC and Harper.
IS. Cassels Brock is a limited liability partnership and law firm with offices in several major Canadian cities that, at all material times, was acting as legal counsel for CPC and Harper.

The allegations against Hamilton include a claim that he received defamatory statements from Derrick Snowdy, a private investigator who appears to have played a role in the fiasco involving Guergis’ husband, Rahim Jaffer.  The allegations then state that Hamilton conveyed this information to Prime Minister Harper and others named in the claim (or alternatively did not make these statements, as the claim indicates).

It’s difficult to see how this function, operating in the capacity as a lawyer, could not attach some form of privilege.  Absolute privilege may be available to some of the other defendants (see New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)) and the defence of qualified privilege may attach to statements made by others. Lewis N. Klar stated in the Ottawa Law Review ((1991) 23 Ottawa Law Review 177-26),

The right of politicians to communicate information to the public has been protected by the defence of qualified privilege in recent defamation cases. In Parlett v. Robinson³⁹³, and Loos v. Robbins³⁹⁴, Courts of Appeal have upheld the right of a Member of Parliament in the former case, and a Cabinet Minister in the latter, to make statements to the public through the media, which although defamatory were made in furtherance of their public duties. These decisions demonstrate a greater latitude to the types of statements which will be protected, particularly with regard to the breadth of their publication, than had been the case in earlier Canadian law³⁹⁵.

In Leverman v. Campbell Sharp³⁹⁶, Lambert J.A. held that the defence of qualified privilege will be defeated if the defendant publishes a statement which is not his honest belief. Although carelessness in forming the belief will not defeat the defence, carelessness in publishing it, so that the statement does not represent one’s views, will.

In order to overcome qualified privilege there must be an element of malice, as explained in Hill v. Church of Scientology of Toronto,

144     The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.

145     Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323-24, and Netupsky v. Craig, [1973] S.C.R. 55, at pp. 61-62.

146     Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation in Canada, supra, at pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166-67. As Loreburn E. stated at pp. 320-21 in Adam v. Ward, supra:

• . . . the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

147     In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. For example, in Douglas v. Tucker, [1952] 1 S.C.R. 275, the defendant, during an election campaign, stated that the plaintiff, who was the officer of an investment company, had charged a farmer and his wife an exorbitant rate of interest causing them to lose their property. The plaintiff maintained that the allegation was without foundation. In response, the defendant asserted that the plaintiff was facing a charge of fraud which had been adjourned until after the election. This Court held that the defendant had an interest in responding to the plaintiff’s denial, thereby giving rise to an occasion of qualified privilege. However, it ruled that the occasion was exceeded because the defendant’s comments went beyond what was “germane and reasonably appropriate” (p. 286).

The other claims against Hamilton are also worth highlighting because it involves his firm,

45. On April 8 and 9, 2010, and all material times, Hamilton and Cassels Brock owed a fiduciary duty and duty of good faith to the Plaintiff, and were obligated to act with regard to the Plaintiffs interests and keep and protect the Plaintiffs confidences as a result of the relationship that existed as between the Plaintiff, Hamilton and Cassels Brock, including as a result of the legal advice that had been provided by Hamilton and Cassels Brock to the Plaintiff on or about April 7, 2010 at a time when the Plaintiff was vulnerable and dependent upon Hamilton and Cassels Brock and relying upon their professional advice.

If Cassels was indeed representing both Guergis and Harper/CPC at the same time, and was providing advice to Harper/CPC that was detrimental to Guergis, it is difficult to see how there could not be a conflict of interest,

48. In addition, Hamilton and Cassels Brock failed to avoid a conflict of interest whereby the interests of their other client(s) were promoted at the expense of the Plaintiffs interests, resulting in breaches of their fiduciary duties and duties of good faith owed to the Plaintiff.

Of course the nature of the advice, and whether they attempted to remove themselves from the record, are other factors that may come into play, especially since Harper made a statement soon after,

72. Also on or about April 9, 2010, Harper made the following public statement: Last night, my office became aware of serious allegations regarding the conduct of the Honourable Helena Guergis. These allegations relate to the conduct of Ms. Guergis and do not involve any other minister, MP, senator or federal government employee. I’ve referred the allegations to the Conflict ofInterest and Ethics Commissioner and to the RCMP. Under the circumstances, I will not comment on them further.

At the very least the lawsuit will finally provide information about the inner workings of Harper’s Conservative Party, which has been the target of general accusations of unilateralism and squashing any dissent. The lawsuit may eventually demonstrate that not unlike the Liberal Party before them, infighting is an unfortunate reality of Canadian political parties once established in power. While this revelation might be refreshing to those who mistakenly believed it to be a problem plaguing Liberal dynamics, it may be less than inspiring to a generation who has been largely apathetic and removed entirely from public political discourse.

The Statement of Claim is below.

Guergis v Novak et al Statement of Claim

1. Congress enjoys a Constitutional authority to provide social services.

2. SCOTUS has upheld broad federal powers under the Constitution.

3. Far from outlawing gay marriage, Constitutional Amendments actually protect it.

4. The 14th Amendment forbids severe immigration laws that racially profile

5. The 16th Amendment gives Congress the authority to collect income taxes from any source.

6. Republican-backed voting restrictions circumvent the 24thAmendment.

7. The Constitution does not grant any authority to ban abortion.

8. The Constitution allows the federal government “to regulate commerce…among the several states,” which is the Constitutional key that may allow health reform to persevere.

For details see Addicting Info.

Full text below:
AGHR Speech May24

If this view is correct, then the real issue is political. It would be up to the Federal Government to negotiate with the provinces to ensure that regulation becomes unified and not multiplied. This would be difficult, to say the least. Arguably, with Ontario on-side the Feds could go “go it alone” and let the other provinces face the screams of protest from their local investment communities. Meanwhile, the possibility of the London Exchange buy-out adds yet another complicating factor to the politics. This might not be a “Canadian” industry for long.
My prediction: Regardless of the outcome of the reference to the SCC, this issue is far from settled.

Kenney—with some help from Prime Minister Harper and Public Safety Minister Vic Toews—used the arrival of two boatloads of Tamil asylum seekers in an attempt to prod public opinion toward the idea that “bogus” refugee claimants were overrunning Canada.

Pretending to punish smugglers—who were largely phantoms out of reach of Canadian authority—he put forward Bill C-49, which resolutely set out policies that would punish the refugees themselves.

C-49 was a profoundly flawed piece of work that proposed building special prisons for refugees who had the good luck to escape to Canada from foreign murder and mayhem but the bad luck to have been caught using the help of a smuggler. Further punishments included the withholding of family reunions as well as healthcare and other services.

It was a strategy that promised to sweep up more votes from ordinary Canadians who could be sold the idea that they needed to be protected from a flood of illegal arrivals. It was pure theatre, with the two ministers and even the prime minister turning up at the two rusting hulks, the Ocean Lady and the Sun Sea, to promote their bill, the extremely wordy Preventing Human Smugglers from Abusing Canada’s Immigration System Act.

See Slate on whether the U.S. can now spend this money any way they want.

By Nate Anderson

Need to get around a Chinese government firewall? Burning to smuggle your samizdat writings past Iranian Internet censorship? Hoping to blog with impunity in Burma? Uncle Sam wants to help. The US government has a $30 million pot of money to spend on “Internet freedom” programs around the world, and it’s not afraid to make a few enemies.
Secretary of State Hillary Clinton last year gave a major speech on Internet freedom and the new “Information Curtain” of censorship that has fallen in some parts of the world. In that speech, she said that State would support development of tools that can bypass Internet censorship. She also outlined a program in which State would fund mobile phone apps that allow people to rate government ministries on responsiveness and efficiency and that can ferret out corruption through crowdsourcing. The hardware is already in the wild, she said; all what’s needed is some money to make it worth developers’ time.
This year, State has $30 million for such projects, and it’s asking interested parties to apply for the cash. Top on its list of wants: “counter-censorship technology” that can bypass firewalls and filters. Such tools may be general (like Tor) or can be specific to individual governments. China and Iran can probably look forward to some US-funded encryption and circumvention tools coming their way in the near future.
The grants will focus on “East Asia, including China and Burma; the Near East, including Iran; Southeast Asia; the South Caucasus; Eurasia, including Russia; Central Asia; Latin America, including Cuba and Venezuela; and Africa.” North America and Western Europe get a pass.
In addition to circumvention tools, State wants to fund secure mobile communications tech that can make mobile phone usage safer. The government will also help nonprofits and digital activists build communication platforms, and it wants to establish “virtual open Internet centers” that exist outside of closed countries and provide a spot to post and archive censored content.
If you’re part of a nonprofit or a university (and are not an affiliate of a “designated terrorist organization”), you have a month to submit an online statement of interest.

——————Source——————

http://arstechnica.com/tech-policy/news/2011/01/uncle-sam-has-30m-to-bypass-chinese-iranian-net-filters.ars

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Interesting comment by a reader:
“govt, doesnt give anything away to anyone (except themselves and their filthy bosses).

it smells like a trick to start the censorship and as usual in the name of democracy.
I had heard many years ago that they are planning to introduce the Internet 2 and shut this one down.

in any case the problem in USA and the West is Not the censorship the problem is Monopoly on info!
the rest of the world gets its info from this monopolized source!”

click here for the video