Complaint About Changes To Greenbelt Plan Against Premier Ford Not Worthy Of Inquiry – Constitutional & Administrative Law

Premier Doug Ford continues to be the target of Integrity
Commissioner complaints by opposing members of Ontario’s
legislators. Although there is value in having a complaint process
to oversee the conduct of elected representatives, the process
should not be used as a means to sensationalize perceived
controversial government decisions or to make unsupported,
frivolous accusations against an elected member in order to impugn
their integrity. Accordingly, where a complaint is based on
insufficient evidence, an Integrity Commissioner has the ability to
refuse to conduct an inquiry.

In Office of the Integrity Commissioner (Re The
Honourable Doug Ford and The Honourable Steve Clark),
January 18, 2023, the Ontario Integrity Commissioner concluded that
a complaint made by Green Party leader, Mike Schreiner, against
Premier Ford and Minister of Municipal Affairs and Housing, Steve
Clark, about the government’s changes to the Greenbelt Plan was
unworthy of an inquiry.

In the fall of 2022, the Ontario government announced that it
would permit a portion of land located in the Greenbelt to be
developed. This portion of land had previously been protected from
development. The announcement created political controversy because
the media linked this portion of land to developers who had donated
money to the Progressive Conservative Party of Ontario or hired
“conservative” lobbyists (or both). The media also
reported that some of the properties in this portion of land had
been recently bought prior to the government’s announcement.
This raised suspicion in those opposed to the changes that the
developers and/or lobbyists had received inside information before
the announcement was made on the theory that a developer would not
otherwise be inclined to buy land that was protected from
development.

Based on the media reports, Mr. Schreiner complained to
Ontario’s Integrity Commissioner that Premier Ford and Minister
Clark had breached sections 2 and 3 of the Members’ Integrity Act, 1994.
He also contended that Premier Ford and Minister Clark had breached
“parliamentary convention” even though Mr. Schreiner
failed to specify what parliamentary convention was
contravened.

Section 2 provides that:

A member of the Assembly shall not
make a decision or participate in making a decision in the
execution of his or her office if the member knows or reasonably
should know that in the making of the decision there is an
opportunity to further the member’s private interest or
improperly to further another person’s private interest.

Section 3 states that:

A member of the Assembly shall not
use information that is obtained in his or her capacity as a member
and that is not available to the general public to further or seek
to further the member’s private interest or improperly to
further or seek to further another person’s private
interest.

In general, while the Act is designed to prevent conflicts of
interest, it does not include “apparent” conflicts of
interest or, in other words, the perception or appearance of
conflicts.

The Act also does not apply to political
interests. The existence of a political interest does not fall
within the definition of a “private interest” under the
Act.

Here, the alleged conflict of interest was linked to donations
made to the Progressive Conservative Party of Ontario. This creates
a “political interest” because a donation shows that the
donor supports the party. However, such a donation does not give
rise to a “private interest” because the member accused
of a conflict of interest does not have possession or control of
the money.

The Integrity Commissioner found that Mr. Schreiner’s
complaint simply did not support the need for an inquiry into the
alleged breach of either
section 2 or
3. The evidence did not disclose that the government’s
changes to the Greenbelt Plan advanced the private interests of
either Premier Ford or Minister Clark. As well, there was
insufficient evidence that either the Premier or the Minister had
used non-public information which they obtained in their capacity
as elected members to advance the private interests of
developers.

To conduct an inquiry under the Act, the Integrity Commissioner had to be
satisfied that there were reasonable and probable grounds to
believe that another member breached the Act. While the media
articles raised a suspicion that the developers had advance notice
of the government’s changes, a suspicion did not amount to
reasonable and probable grounds. As determined in R. v. Mackenzie, 2013 SCC 50
(CanLII) at
paragraph 65, the requirement of reasonable and probable
grounds creates a demanding standard that is more than mere
suspicion.

The Integrity Commissioner found that Mr. Schreiner’s
complaint that Premier Ford and Minister Clark breached
parliamentary convention seemed to be related to lobbying.
Lobbying, however, is not prohibited by parliamentary convention
and, indeed, is a well-established activity in politics. It is also
a regulated activity that is governed in Ontario under the Lobbyist Registration Act,
1998.

In the result, the insufficiency of evidence doomed Mr.
Schreiner’s complaint.

This decision shows that before a person files a complaint with
an Integrity Commissioner, sufficient evidence should be gathered
to support the allegations made in the complaint. To file a
complaint that lacks sufficient evidence raises potential questions
about the political motives of a complainant. The Integrity
Commissioner process is serious in nature and is not meant to be
weaponized for pure political drama. Protecting the environment and
protecting the Greenbelt has merit. However, simply because a
government chooses to amend its plans and permits development
within an area where no development was previously allowed does
mean that an elected representative has acted in a conflict or
without integrity.

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