Tuesday, October 3, 2017

Mixology of the English Language

Integrity, what is it? Webster's describes integrity as “the quality or state of being of sound moral principle, uprightness, honesty and sincerity.” An admirable quality in any human being without a doubt. Can we expect this quality in our elected officials? If integrity is too much to look for in those we elect then what can we look for as possible standards? If these qualities are too high a standard to use as a benchmark for those in public office certain codes governing acceptable and non-acceptable conduct are then designed.

When codes are designed to govern professional ethics and conduct, or procedural equality and fairness then without a doubt we will find someone in breach of these rules, and alleged breaches need to be examined and investigated. Now ordinarily, this investigator can be the head of a particular organisation or a senior individual within a human resource division. In politics most often an outside adjudicator is appointed who is required to be completely impartial and immune to any bias. These individuals are provided with the title of Integrity Commissioner, lending an air of authority and power.

Slap together Integrity and Commissioner and you have a political watchdog. These ICs come in all shapes and sizes like the varying levels of government. At the municipal level they have their authority outlined in the Municipal Act though they are limited in any consequences they can impose on politicians found to have breached the code.

In the Niagara Region much has been discussed in relation to the benefit of an Integrity Commissioner. Regional Chair Alan Caslin cried that he had been bombarded with too many complaints against his councillors that he could not cope with it. For that reason the Regional Municipality of Niagara appointed one John Mascarin of Aird & Berlis, a Toronto law firm, as its interim-Integrity Commissioner. John Mascarin was at the time the permanent IC for the City of St. Catharines.

Controversy surrounded the appointment of John Mascarin around potential conflict of interest. Mascarin's law firm Aird & Berlis just so happened to represent Chinese developers in negotiation with the Niagara Region for a possible $1.5 billion land development. Still it was John Mascarin's shining star status that appeared to have blinded all on this minor inconvenience. After all he is a scholar in Municipal Law and teaches at Osgoode Hall! He had written chapter after chapter on municipal matters, specifically on the OMB and land development regulations, in addition to being a practicing lawyer in the field who has appeared on television and other media to comment on all manners of the subject.

It is important to note here that Integrity Commissioners have no set rules or procedures to follow. The Municipal Act only provides the description of their authority and nothing else. Plumbers, journalists, lawyers – they all have codes of professional ethics. Even politicians do; after all if the politician breaches his or her code they face off with the Integrity Commissioner. Yet the Integrity Commissioner has no codes or procedural rules at all. If there was an association for these watchdogs it probably would have as a motto, 'Come as you are, Do as you please'.

Chair Alan Caslin unloaded the heavy burden of some six or seven complaints that he could not handle upon the broad shoulders of this certified expert. This expert cleared two councillors and dismissed the complaints as smoke and mirrors, while stepping away from a third against Alan Caslin himself. The remaining three found the expert with rolled sleeves and dug in. All three were against Niagara's favourite son, Regional Councillor Andy Petrowski. On May 18th 2017 John Mascarin rode into a public meeting of Regional Council to present his report. These words uttered by John Mascarin of Aird & Berlis are of great importance; they were on record and cannot be denied.

Not long after the May 18th public meeting two mayors, Jim Diodati of Niagara Falls and Frank Campion of Welland, found themselves revealed on Facebook hurling out the Nazi salute. This thoughtful gesture was performed during a Niagara Peninsula Conservation Authority Board Meeting, of which both are board members. For two mayors to do something like this was mind boggling. Yet this incident together with Mascarin's May public appearance became the motivation for an exercise.

Each case had a clear and specific reason on its own to require an investigation. The first centred around two mayors: Jim Diodati of Niagara Falls and Frank Campion of Welland. These two public servants decided that a Nazi salute was somehow a thing of jest. Thinking it was a joke they hurled their arms out during an official meeting of the Board of the Niagara Peninsula Conservation Authority. A second request was in relation to City of St. Catharines council member David Haywood and an incident revolving around his conduct on social media.

In the case of the two mayors the reasoning was simple: as both mayors are sitting members of Regional Council, both would be under the jurisdiction of the Regional Code of Conduct. As it turned out that was an error in thinking and John Mascarin responded on July 12th 2017. It was a four page report to simply say at the end, “Based on the foregoing, the Request has not been filed in the proper forum. My jurisdiction does not extend to the NPCA, which is a separate corporate body with its own code of conduct. Accordingly, I suggest that you may seek to modify your Request and submit it to the appropriate oversight officer at the NPCA for consideration.” Modification was indeed conducted and the request forwarded onto the Chair of the NPCA, Sandy Annunziata.

Now the second investigation request had a different outcome, the exercise provided tangible results. This case revolved around Merritton Ward, City of St. Catharines Councillor David Haywood and an exchange with him on Facebook. At the May 18th Regional Council meeting John Mascarin had a great deal to say on a number of issues, one being the whole social media thing. This is a good time to note that of the three complaints John Mascarin chose to investigate, two centred on Councillor Petrowski's outings in the world of social media.

On May 18th John Mascarin stood before a public meeting of Regional Council and said a number of things. He was there in what appeared to be a role of educator or an expert, as he made a point of how he had helped dysfunctional councils. He also stood there with a price tag dangling out from the edge of his sleeve. Aside from the cost it is important to ascertain just how much does a lawyer believe in the words he utters, more so when that lawyer parades as an Integrity Commissioner. Does he fit the description of the title of Integrity as described in the opening paragraph?

John Mascarin said, “The whole purpose of social media is to impose your views, if you're tweeting onto other people.” If this is true it is a very narrow minded view of social media. Just prior to this statement Mascarin had this to say: “I looked at the word impose and thought it meant foist, inflict, press, urge all these sorts of synonyms, the fact that someone tweets something, you're distributing, you're making communication. To me that's putting it out there, that's imposing, you are sending it out in the Twittersphere, you're imposing, you're propagating your view, that's the whole purpose of social media.”

As stated the motivation behind the exercise was to test John Mascarin himself and his rhetoric used to justify his position and his actions. The investigation request brought to his attention was about a Facebook exchange with a City of St. Catharines Merritton Ward Councillor David Haywood, accompanied by four photographs. Remember according to John Mascarin the whole purpose of social media, Facebook being a big chunk of it, is “to impose, to foist, to inflict, to press, to urge.”

St. Catharines once bragged it was the Garden City, today it is full of weeds. Look at the garden city at the intersection of Glendale Ave., and Almond St., in Merritton. Weeds reach up to 4 feet and more in height, their seeds are blown into yards throughout the neighbourhood. Dogwood insanely planted obscures the intersection to a point that the crosswalk is dangerous to use and traffic entering Glendale from Almond always at a risk of collision. Mayor Walter Sendzik could not give a damn, and the Merritton Ward Councillors Haywood and Stevens nowhere to be seen. Yet try and let this happen in your own front yard and see what the city will do.”

This post did not tag anyone. The mayor's name was clear and in full, the two councillors just mentioned by last name the way it is done in general conversation, not intended to be specific or personal. A short time after the original post Councillor David Haywood came with this first comment, sounding annoyed with the post. Haywood said: “the first I have heard of this Alexander. Nowhere to be seen??? Try calling me or emailing me I can tell you I haven't heard from you so please try using the same energy to pick up the phone as you used to complain. We share the same passion for the local environment but I cannot read minds.”

Young Councillor David Haywood seemed to take a Facebook post very personally which was not aimed directly at him. Maybe the whole 'Facebook Friend' is taken to mean something more by Haywood. His first comment was ignored, there were other people who had made comments, but Haywood's little stomp was also ignored. Haywood then came back again, and said “I will have the areas looked at. We represent you Merritton residents. We are your voice. To expect us to just know things or to say for us to 'look' around doesn't help anyone. It is condescending to state it in that fashion. Counterproductive.”

Wow, Councillor David Haywood, the voice of the residents seemed a little more annoyed. Was it because he was ignored by the original poster? This time he got his response. “I thoroughly enjoy a public servant with a soft skin. First of all for several years I have spoken to the supervisors who used to come and look at this garden with no result. This 'garden' has been like this since the early days of Spring. Shame is on the public servant who is too busy shifting responsibility on a member of the public. You Councillor Haywood want examples of the actions of councillors representing Merritton. I suggest you think twice before you as a newbie open that Pandora's Box. You have city crews pass weekly I guess that is not a problem for you either. Do not start something you can't finish. If you really care than DO something about it if not do the usual and blame someone else.”

Now Merritton Ward, St. Catharines Councillor David Haywood lost his cool completely. He turned a general post on social media into something personal. That post was never made to be personal, nor was it aimed at Councillor David Haywood specifically. He decided to prod twice and when a response was provided only after his second prodding he lost his composure. Yet it is important to listen to Haywood's words in the opening, and when you do it gives an indication that he intended this to be personal from the beginning. Haywood's third comment read: “Nothing about soft skin. Just tired of you automatically taking the position as a foe to your representative in the Merritton Ward. How immature to tar the new representative based on how you feel past reps have acted. Sorry I am more rational than you and mature than you. I am not an armchair quarterback like yourself. I have emailed staff concerning this. As for starting something I cannot finish, bring it on!!! You will not scare or bully me. Looking forward to see what you can do – wonder what I will look in your cartoon.”

After posting his first comment he came back again when no response was given, why? Integrity Commissioner John Mascarin clearly expressed his interpretation of social media. He said, “the whole purpose of social media is to impose your views” and with the word impose he explained that he thought it meant to “foist, inflict, press and urge.”

An investigation request was prepared and filed against St. Catharines Councillor David Haywood. All documentation was prepared, copies of screen captures together with a signed Affidavit and handed to the City Clerk who as per the City's Complaints Process provides it to the Integrity Commissioner.

A great deal was said at the May Regional Council meeting by John Mascarin. He provided his interpretations on the whole purpose of social media. At one time he admitted that he was not very good with social media and didn't really understand it nor use it much. Mascarin was asked by Regional Councillor Burroughs how he treated complainants: “In each case I have written what I call a short ruling and I do attempt to explain why I did not proceed to a full investigation... I do communicate with the complainant um... in some cases the complainant will say I don't agree with you but I respect that you have given me some indication.”

City Clerk Bonnie Nistico-Dunk for the City of St. Catharines sent a letter via email dated August 9th 2017. She stated that “Mr. Mascarin felt that your allegations appear to contravene the following part of the Code,” then she quoted the pertinent section of the code. Nistico-Dunk then continued with, “Mr. Mascarin states that “the complaint, viewed objectively, does not set out reasonable and probable ground to support the allegation that the Councillor engaged in discredible conduct in contravention of the Code. It is my determination that the Complaint is frivolous and vexatious and that no investigation is warranted.” And yet, each of the three investigations that John Mascarin completed related to one regional councillor, two of which centred on social media. He chose to investigate a tweet by the councillor where he referred to the Mayor of Pelham David Augustyn as “plastic face.”

So a request for investigation relating to two mayors and a Nazi salute resulted in a four page response directly from John Mascarin to simply say 'no I can't'. An investigation request against City Councillor David Haywood brought a censored or selective report from City Clerk Bonnie Nistico-Dunk. So much for communicating with the complainant.

An email was sent to John Mascarin requesting clarification regarding his report and an explanation. Serious questions were asked relating to the short quote Bonnie Nistico-Dunk provided in her letter. Mascarin responded on August 14th 2017 several hours later and his response proved clearly he did not like to be asked uncomfortable questions. He may say one thing in public but what he really does appears to be very different.

Not one question was answered by John Mascarin, he simply said that he provided his report to the City Clerk as per the Complaint Protocol. He did attach a copy of his report and made one statement that was alarming, he said “I have briefly discussed this matter with the City Clerk and attach here to my complete formal response.” What did the Integrity Commissioner discuss with the City Clerk? Was the discussion prior to Mascarin providing his formal response? The City Clerk has no jurisdiction nor authority to discuss anything in relation to any complaint, all that Nistico-Dunk could do is receive the complaint and forward it on. The issue of who John Mascarin speaks with came up during the May Regional Council meeting. At the time he first admitted to speaking to people then back-tracked and claimed he had not.

Reading the report the number of questions ballooned, so many that no quarterback, armchair or not, could catch them all. City Clerk Bonnie Nistico-Dunk stated in her August 9th letter that “Mr. Mascarin felt...” yet Mascarin at no time refers to feelings in his report. Nistico-Dunk then took two sentences, combined them into one paragraph, and left out the core of Mascarin's report, why?

In his 'Assessment & Analysis' Mascarin quotes only selective words out of the complaint. Usually lawyers play this trick to intentionally misdirect meaning. Taking quotes that are limited and out of the proper context of the sentence is intentional, but what did the Integrity Commissioner intend here? Mascarin finished with this: “The complaint uses the word “attack” or variations of the term no less than six (6) times.” Was this simply a keen eye or was Mascarin acting like the Councillor's defense lawyer rather than impartial judge and jury he proclaims to be?

Paragraph two is the real gem and defense lawyer Mascarin truly shines. He says, “Admittedly, the Councillor uses a somewhat sarcastic tone in responding to the complainant...” It would seem that clear and literally black and white evidence in the original complaint was a waste of time on this IC. The Councillor did not respond, he initiated the conversation with intent. When no response was provided by the complainant to his first post then he came on again.

The very best from Mascarin is this, and no one on the courtroom drama series The Good Wife could do better: “the specific words used in the Councillor's remarks must be viewed in context to the posting made by the complainant which appear to be clearly intended to bait and prod the Councillor.” Here it is, lawyer Mascarin to Judge Mascarin, 'Your honour the councillor shot the guy but it was not the councillor's fault, he happened to be standing there'. As insane as this analogy sounds it does not come close to IC John Mascarin's.

So Mascarin claims that the original post baited and prodded poor young Councillor David Haywood. How? Haywood chose to come onto the conversation, when ignored he came again. He got a response which basically said to leave well enough alone. Councillor Haywood did not like that and said, “Just tired of you...,” and then went onto a verbal attack. As an elected member of government Haywood does not have the luxury of claiming he lost his temper, but at least in this case he had a good defense lawyer.

Just when one would think it is enough and the winning words had been spoken Mascarin continues, “I have taken into account that the facts giving rise to the Complaint occurred more than two years ago”, claiming that the complaint was filed on June 27th 2017. John Mascarin of Aird & Berlis lied! No publisher says anything like this easily in print, but IC John Mascarin lied in his final report. The original posting on Facebook was on July 12th 2015 and the complaint filed on June 20th 2017. Maybe Mascarin needs all his fingers and toes to calculate this?

Two years had not yet passed and the facts glaringly prove that Mascarin lied? Why? He said “In making my ruling I have taken into account...” It seems that the IC took into account a lie of his own making to make his decision. How much of his report is based on real facts rather than convenient interpretations?

An email was sent to John Mascarin and many questions were asked, in particular why did he lie. His response on August 17th 2017 truly shows how John Mascarin epitomizes the title 'Integrity'. This is the same individual who stood before regional council and the public throwing out his empty words. In his response he said, “My ruling speaks for itself. You may disagree with certain points or with the entire ruling but I am not prepared to respond further.”

Integrity Commissioner and lawyer John Mascarin of Aird & Berlis lied, then said that he took into account that lie in the making of his ruling. When asked to explain his lie John Mascarin said that he was “not prepared to respond further.” Maybe this is his way of taking the Fifth, even if it doesn't exist in this country.

John Mascarin has proven that the concept of Integrity Commissioners without a definitive code of conduct and set procedural guidelines are only a farce. These ICs are only tools for governments to either defame the reputation of a complainant or to attack an unpopular councillor. If one of those commissioners is caught lying and he or she simply refuses to explain themselves then what trust can be placed in them? Mascarin and his law firm Aird & Berlis pocketed public money for this, how is it possible for him to refuse to answer questions?

Still the insanity doesn't end here. Since Mascarin refused to explain anything, including his lie, some questions were sent to City Clerk Bonnie Nistico-Dunk on August 21st. It was asked of her if the report by Mascarin was provided to Council, whether Councillor Haywood was provided a copy of the Mascarin report and/or the request for investigation, and if anyone else had access to the report.

Nistico-Dunk responded the same day stating that “there is no report to go to Council on the matter.” She said “Councillor Haywood was advised of the complaint and was provided with a copy of the ruling,” and that she was not aware of anyone else who had been provided with a copy of the Mascarin ruling. On August 22nd one more question was sent. The question was simple; asking Nistico-Dunk who provided the Councillor with a copy of the ruling. On August 29th this response was received from the City Clerk: “Your original complaint was not provided to Councillor Haywood. The response was not forwarded to him from this office.”

Now the plot thickens and some confusion arises. First the City Clerk says that the Councillor “was advised of the complaint” but later that the “original complaint was not provided.” Nistico-Dunk also said that he was “provided with a copy of the ruling” and then later “the response was not forwarded to him from this office.” An email of August 30th was sent to attempt to find some clarity. The response was far from the expected.

John Mascarin on September 1st sent an email beginning with “I have been made aware that you have been corresponding with the Clerk regarding your recent complainant.” On August 17th the same John Mascarin ended his email when asked why he had lied in his ruling with, “I am not prepared to respond further.” Yet here he was holding City Clerk's Nistico-Dunk's hand and responding to questions asked of her! Maybe a resident of any city or town would expect that their communications with a senior city employee would have a little confidentiality. A 'Confidentiality Notice' appears at the bottom of every email from the City, including those of Nistico-Dunk's. In this case public servant Bonnie Nistico-Dunk went running to Integrity Commissioner John Mascarin to respond on her behalf!

The Municipal Act under Section 223.3(1) clearly outlines the role of any Integrity Commissioner. It states that “an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to:

a) the application of the code of conduct for members of council
b) the application of any rules, procedures and policies of the municipality governing the ethical behaviour of members of council

St. Catharines Complaints Protocol describes the Integrity Commissioner and his/her responsibilities on page 8. Nowhere in either of these two documents does it say the IC is the personal assistant of a public servant.

Mascarin says, “I understand that you are seeking clarification of certain questions that you have asked the Clerk,” and then provides four bullet replies or answers. He was asked to provide some clarification on why he lied in his report and how did he take into account making his ruling a lie of his own making. On that he refused to provide clarification.

Bullet number one from Mascarin states that “The council member was advised by the Clerk that a complaint had been filed against him and that he could make inquiries with me regarding it. The Clerk advised me that it has been the historical practice at the City for a council member to be made aware of any complaint filed against him or her.” Why didn't Nistico-Dunk say this from the beginning? Instead she played with semantics, evasion and omission. Nowhere in the Complaints Protocol does it inform the complainant that the complaint once filed is relayed to the councilor. Is it possible to believe anything Nistico-Dunk might say on this matter?

Bullets two and three are even more exiting. Number two states: “The council member introduced himself to me while I was at City Hall and asked me to verify that a complaint had been made against him.” Then number three: “The council member also asked if he could be kept apprised of the matter and I advised him that I would either be in contact to make inquiries of him or he would be notified of any disposition respecting the complaint.”

On May 18th John Mascarin was questioned by a Regional Councillor as to who he spoke with during any process of an investigation. At first Mascarin admitted to speaking with members of the public and then did an about turn and denied the fact. In this matter on August 14th Mascarin says, “I have briefly discussed the matter with the City Clerk.” On September 1st he says, “The council member introduced himself to me...”, and then “I advised him.”

Still the best was bullet number 4: “My ruling was provided to the Clerk in accordance with the Complaint Procedure and I advised her I would forward a copy of the ruling to the council member to discharge my undertaking to notify him.” Lawyer's language, don't you just love it. Words like “discharge” and “undertaking” sound almost official and correct somehow.

On August 14th, explaining why he did not provide a copy of his report to the complainant, Mascarin stated “My advisement to the City Clerk was provided in accordance with Section 4(4) of the City's Complaint Protocol in Part 3 of the Code.” From the City's Complaint Protocol page 11 heading 4, Refusal to Conduct Investigation, (4) “The Integrity Commissioner will inform the Clerk when an investigation is terminated or not advanced for reason cited above. The Clerk in turn will notify the complainant of this decision.”

Any possible procedural fairness has been destroyed by the City Clerk Bonnie Nistico-Dunk and Integrity Commissioner John Mascarin. It is impossible to understand how or why an IC would respond to a communication sent to a public servant. The Clerk is not a member of City Council nor has she got anything to do with the Code of Conduct. Mascarin refused to deal with the issue of the two mayors and their Nazi salute simply because they were part of a board with its own code. What code is Nistico-Dunk a part of?

As an Integrity Commissioner, John Mascarin made a public 'undertaking' on May 18th. He said that he always provides his reasoning on a matter and answers questions from any complainant. Mascarin was asked why he lied in his report – he refused to answer. He was asked to clarify points in his report, he refused to answer. He breached the City's Complaint Protocol by making a promise to a Councillor he had no right to.

What really happened here? It was a simple exercise questioning the stupid actions of a City Councillor on social media. This Integrity Commissioner had already set his own precedent on the issue. The result has been a mountain of unanswered questions. A City Clerk who intentionally evaded answering questions. This same Clerk carried out actions which put the 'integrity' of the complaints process in jeopardy. At the same time the IC lied in his final report and refused to clarify why he lied, making his report invalid. Taking things further, the IC admitted to breaching the City's Complaints Protocol and took on the part of a secretary to a public servant.

This notion of an Integrity Commissioner acting as a personal secretary for a City Clerk is both alarming and dangerous. Everything about an IC sits on the balance of complete and total independence and impartiality. The actions of Integrity Commissioner John Mascarin and City of St. Catharines City Clerk, Ms. Nistico-Dunk raise questions which must be answered.

This last communication from 'Integrity' Commissioner John Mascarin leaves a mountain of questions. City Clerk Bonnie Nistico-Dunk through her actions has raised issues surrounding
the Complaint Protocol in St. Catharines to a new level. Meanwhile Mayor Walter Sendzik sits on his hands and brags how his city has the best code of conduct and complaint protocol in the province.

All of this on the taxpayer's dollar, and maybe Regional Councillor Gale's comment on May 18th describes the whole process well, that it is a farce. This one has not ended yet, watch for more to come on Mayorgate.

Monday, August 21, 2017

A Voice Refusing Silence

Mayorgate's monkeys have found themselves on the couch like the forgetful husband who somehow managed to let his mind slip past the anniversary date. Although the occupation of the couch in this situation is not due to forgetfulness, it was rather a need to bring forth two articles shedding light against a tide of destruction of both equality of law and the basic rights all Canadians expect.

Silence has not been comfortable at Mayorgate and it had not occurred as a result of a loss of interest. Ill health had got in the way and the pen stopped moving, though the mind itched for the scratch again. So this look back at the year past may be later than usual but the tradition could not be forgotten or let slip into the nether realm.

May of 2016 glanced back at the year past through Battles won, battles lost, the game continues. As much as any anniversary piece remembers articles of the last year, it is also the cleansing of the plate for the coming year. First out for year 8 an article dealing with local issues, Are By-Laws Real?Not in St. Catharines. The City of St. Catharines, Ontario isn't big nor is it small, yet it is a canvas that mirrors so many of the issues which are relevant to all of us regardless of our home base. For Mayorgate the roots which bind us to reality are never forgotten, in fact the title of that article is a question which will resonate even louder soon.

Democratic society is built on a foundation of law and the law has many tiers. This foundation is held together with a belief, and expectation that all the laws of this land are equally applicable to every Canadian. When this expectation of equality is lost we not only should ask for explanation, but demand it. Journalists hold a powerful position to inform the people of what unfolds before them, and that is why for a long time they have been thought of as watchers. These individuals use the art of language, and their acumen for both investigation and interpretation of information to bring light where darkness festers.

In Canada the world of journalism and traditional media slammed the panic button. This sound managed to grab the attention of the federal government resulting with a Commission being set up under Chair MP Hedy Fry to investigate the future of traditional journalism. Media giants like Paul Godfrey of Postmedia and John Honderich of Torstar shed tears over falling revenues, newspaper closures and the evil encroachment of a changing world and the Internet.

Journalism must remain independent of government influence yet here we had multi-millionaires crying for government handouts. A three part series: Who Watches the Watchers, attempted to sift through the theories of purveyors of think tanks, media advertising campaigns, the tears of media moguls and interfering government officials. At the time of publishing part three in this series the Canadian Heritage Standing Committee was promising to release its report. After all the roundtable meetings were finished and presentations completed, nothing really changed. Trust in the media and its journalists is still at an all time low, newspaper sales still dropping and cost cutting measures rising. The Heritage Committee has now released its report; Disruption: Change and Churning in Canada's Media Landscape, and it will be interesting to peak through its pages of wisdom.

After the journey into the world of media and journalism Mayorgate swung over to the retail world. Today's economies are struggling regardless of what politician's claim. In North America a whole new class in the workforce is growing larger than any other, and that is the Part-time Employee. Part-timers are a favourite especially within the retail industry, although banking and other commercial enterprises are following suit. These workers are not covered by any benefits, making them a cheaper workforce, and are often on minimum wage. Parts 1 and 2 of Modern Society's Reboot of Indentured Servitude not only discussed the near impossible task of surviving as a part-time employee, but also at the attitudes of corporations towards their employees.

Roadblocks appeared on the path and they took some time to steer through, yet Mayorgate sprung from a belief that silent acceptance is not the answer to anything. Strength and power comes from the courage to raise one's voice against what is wrong. The monkeys of Mayorgate will never accept as truth that silence is golden, well maybe when they wish to sleep.

The coming year promises to bring some thought provoking issues to deal with, and maybe some closures. In 2014 a lawsuit had been launched against Mayorgate and its publisher. An article from January 2014, Seniors Languish in Intimidation brought anger from the Board of the Paderewski Society Home. Lawyer Rachel Slingerland for the board played all kinds of tricks, and then jumped ship. Zijad Saskin of the law firm Broderick & Partners LLP took over the steering. Now all of Zijad Saskin's stalling tactics finally fell on deaf judicial ears and the trial was set for July 31st 2017. The trial lasted five days but had not reached an end and adjourned to a possible restart date of September 11th.

So remember that silence is not golden and keep on reading, and having said that, don't be silent with any of your comments. Maybe now the monkeys can get off the couch, but then knowing what monkeys are like they are more likely to continue to fool around.

Wednesday, July 26, 2017

Oh Lord, the Old Goose and Gander Thing

In our democratic society we elect our leaders and all the various levels of government. As the general public we expect a certain amount of humility in theses individuals after all they ask to be chosen by us in service of the people. Maybe now is a good time to end the fantasy before it gets out of hand. True we do elect all the politicians on all levels of government but the humility thing, well it is simply a utopian version of politics.

Then if a utopian version of politics is out of the realm of possibilities, what then? Remember that in old England the sovereign bestowed the title of Lord Mayor to a city mayor. If that's not a fast jolt to an ego what is, especially as municipal politics is at the bottom step of the stairway to heaven.

So what if we jump over to the animal kingdom and to a proverb dating back to 1670, 'what is good for the goose is good for the gander'. It would not matter in what language this proverb is translated its meaning is never lost. Basically it is saying that what is good for one then it is good for, or equally good for another.

Sadly the breaks on reality need to screech to a halt here again. We started talking about politics and elected office so if the implication that an ancient proverb may apply then a reality check is definitely needed. If respect and honour of office do not seem to apply and the ideals of equality left to historical reference, or worse, proverbs, then what is left?

In order to provide at least the appearance of consequential responsibility for their actions our politicos had developed an array of varying Codes of Conduct. Each of these codes set out boundaries within which elected officials are expected to conduct their business of politics and ethical governance. Once one of these characters steps outside and breaks the strings that supposedly bind actions to ethics then a public enquiry is launched. The inquisitor in Ontario has the formidable title of Integrity Commissioner. Yes the title has a resonating sound of grandeur, though reality sadly can taint the whole performance.

Recent months had found the Niagara Region under the shroud of one of these inquisitors, his target predominately one regional councillor. Although John Mascarin, a lawyer from a Toronto law firm Aird & Berlis LLP, had come first to the City of St. Catharines as an Integrity Commissioner, he agreed to fill the same duties for Niagara Region till a permanent individual was chosen. Mascarin not only looked at three complaints filed against Regional Councillor Andy Petrowski, but also two other councillors. In addition to conducting these investigations his mandate included the revamping of the Code of Conduct for Members of Regional Council.

Councillor Petrowski is no virgin as far as investigations by an integrity commissioner is concerned, nor is he new to facing a political storm locally. He is loud and brash, often stands against the old boys club style of politics. At the same time his personal views are less palatable to many and he does not feel shy in expressing them which had found him in the sights of more than one integrity commissioner. Not only has he found himself facing a number of complaints regarding his conduct, the Councillor had become a target for the local newspaper The Standard, and particularly reporter Grant LaFleche.

Here comes the whole goose and the gander thing. Petrowski is a staunch supporter of US President Donald Trump and in a tweet he linked to a website run by a Brother Nathaniel. He did not check out this website and its contents or anything relating to this Brother Nathaniel, he simply saw a headline he liked and linked to it. Nathaniel Kapner, himself a Jew, operates a website titled, 'Real Jew News' and because of his personal views is labelled as anti-semitic.

Grant LaFleche who 'follows' Petrowski's twitter account took this to Harold Nash, President of B'nai Israel in St. Catharines. Nash knew nothing of this till Grant LaFleche brought it to his attention; once Nash became aware of the tweet his comments against the councillor were filled with accusations of anti-semitism demanding Petrowski be censured.

This was not enough for Grant LaFleche, after Harold Nash and B'nai Israel he sought out comment from St. Catharines Mayor Walter Sendzik. Once again, as with Nash, Mayor Sendzik knew nothing of the tweet on Councillor Petrowski's twitter account till LaFleche raised it. Sendzik's attacks labelled the Councillor as anti-semitic and called for his resignation. To complete his trifecta LaFleche contacted Regional Chair Alan Caslin, who was also unaware of the tweet.

No matter how much Councillor Petrowski would apologise or explain that he had not been aware what was the content on the website he linked to, the label of anti-semitic was stitched on. Grant LaFleche and The Standard successfully created a story where none existed. Regional Council devoted a whole session of public condemnation of Petrowski. A gang of non-politicians from the public raised their voices to speak out against the Councillor and denounce his anti-semitism, such as Jeff Burch, Executive Director of Niagara Folk Arts Multicultural Centre. Jeff Burch, once a St. Catharines Councillor and failed candidate in an attempt to become mayor, was quoted as having extreme disappointment with Petrowski's behaviour including posting “what are clearly anti-semitic remarks on his social media account.” This was a quote Maryanne Firth of The Standard published on November 25th 2016, 'Caslin raps Petrowski over latest tweet'.

To label anything a lie immediately makes some individuals jump up and down bang the drum of honesty. So may we call this a misrepresentation of the truth? Petrowski in fact, which is witnessed by direct copy reprinted by The Standard, had only made 'remarks' to Donald Trump and Obama in his tweet. He had no remarks made towards or at the Jewish community as a whole or anyone individual Jewish person living or dead. Still it was The Standard and Maryanne Firth will say that she did not say that, but only quoted Jeff Burch.

The circus went on from November 24th 2016 with the news story created by Grant LaFleche through to December 15th 2016, with a total of six articles and editorials. In addition to this barrage, Niagara this Week joined in and culminated with an editorial in December which boggled the mind on how editorials can twist the truth. Even the Canadian Jewish News published an article on the subject December 5th 2016.

Welland Mayor Frank Campion at NPCA Board meeting
Now fast forward to June 2017 and a YouTube video on a Niagara Peninsula Conservation Authority Board (NPCA) meeting, posted on Facebook by Niagara Falls Councillor Carolynn Ioannoni. In this video you can watch the Mayor of Niagara Falls and the Mayor of Welland, also both Regional Councillors, raise their hands in a Nazi salute. Both Mayor of Niagara Falls Jim Diodati and Welland Mayor Frank Campion raise their hands in what they claimed later was a joke.  The video is of a January 18th 2017 NPCA Board meeting and it is a record of the official business of the board, not a social gathering. This video came to public attention in June, both Mayors Jim Diodati and Frank Campion made public apologies with that claim, that they only did it as mocking fellow Councillor Douglas Joyner on how he raises his hand to get attention.

Niagara Falls Mayor Jim Diodati at NPCA Board meeting
Grant LaFleche and The Standard jump forward on June 12th 2017 with an article titled 'Mayors' Nazi salute to be removed from NPCA video'. LaFleche writes, “If nothing else, Diodati said the incident shows how mindful elected officials must be about what they say or do. Even if they don't intend to say something hurtful, they sometimes can do so without realizing it at the moment.” LaFleche's article finishes with a joint statement made by Mayor Jim Diodati and Mayor Frank Campion.

Mayor of West Lincoln Douglas Joyner raising his hand first at NPCA Board meeting

Unfortunately, our actions were gestures meant in light and a silly imitation of another councillor's unique handraising style. They were not meant as anti-semitic. Our actions in no way represent our genuine views and values. We have both apologized to those who felt offended. We feel strongly that we would never want our actions to be taken out of context or misinterpreted. This weekend, we reached out to members of the Jewish community to share our sentiments as well. We both say that we certainly feel this to be a learning experience and appreciate the comments of the community, but want to be clear that we don't want the intentions of our action to be misconstrued.”

Mayors Jim Diodati and Frank Campion issued their statement of apology, LaFleche tags it at the end of his article with a few words of wisdom and humility from Diodati before the apology, and that's it. Three days later LaFleche writes another article, although the focus of that is separate to the anti-semitic Nazi salute.

So here it is the old goose and gander thing stripped bare wanting explanation. It's important to understand this old proverb is not some joke, it is the foundation of democracy. Nothing is more vital in a true democracy than equality. It should not matter what one's economic situation is, nor should gender, race or religion be a consideration when application of our laws or our governing procedures be applied. Then if Petrowski is the goose, what about the gander here?

This is where the proverb and all that we supposedly as Canadians value falls dramatically apart. Serious questions demand to be answered by Grant LaFleche and The Standard, after all the world of journalism claims to bring all the truth without bias. Still it's not the ethics of a journalist and his newspaper alone that should explain themselves.

A Nazi salute is quite possibly the most detested physical act in today's society. Throw a birdie finger today and even an 80 year old grandma will be likely to throw one right back at you, especially if you are on the road. Not with a Nazi salute, and to have two mayors, professional politicians paid with public money claim it was a joke, that it was done in jest during an official board meeting, is simply unacceptable. It is important to note that the video was of the January 18th 2017 meeting and was only made public June 12th; Diodati and Campion only apologised in June and only when publicly caught.

When Petrowski pressed the button on his infamous tweet, Clark Kent of The Standard's newsroom, LaFleche, grabbed his cape and plucked it out of the air. He held it tight and flew to Harold Nash, President of B'nai Israel of St. Catharines. Clark – sorry, Grant - then made a stop at the door of Walter Sendzik, Mayor of St. Catharines and even knocked on the door of the Regional Chair, Alan Caslin. Yet with the two gander, Diodati and Campion, the caped crusader of Niagara's journalism for some reason sought out no real comment other than from Perry Schlanger, a member of the public. Mr. Schlanger is a regular cast member in City Council's gallery of extras. During The Standard's frenzy on the Petrowski tweet it was reported that Perry Schlanger, along with Haley Bateman and Jeff Burch, made pleas as 'concerned citizens' for action to be taken against the Councillor. A Nazi hand salute brought this response form Schlanger as quoted by LaFleche: “I am willing to accept their mea culpa.” Maybe the question to Mr. Schlanger should be this, does he see a tweet with no reference to an individual Jew or the Jewish community worse than the hand salute during official business by two mayors, who only apologise five months later, when caught? This is the Austin Powers moment with the finger on chin and the “hmm.”

Harold Nash, President B'nai Israel St. Catharines, after being woken up by LaFleche went into attack mode demanding censure of the Councillor after his tweet. Harold made no comment in relation to the hand salute, so an email was sent to him providing an opportunity to stand against all forms of anti-semitism. Harold Nash has refused to respond, he has made no comment on the hand salute, not even an attempted eloquent “mea culpa.” Now with Nash's silence questions begin to buzz and they are not pleasant. 

It is not only Nash of B'nai Isreal who raises question through silence.  Judy Haiven wrote a long letter of opinion which The Standard published June 27th 2017. The letter by Judy Haiven, titled, 'Many Jews support BDS Movement' and was written on behalf of the steering committee of the Independent Jewish Voices of Canada, (IJVCanada.org).

Haiven's letter is in support of the BDS (Boycott, Divestment and Sanctions) Movement. The first paragraph provides a brief description of what Independent Jewish Voices Canada is about, then paragraph two slams into this, “We, too, condemn St. Catharines regional counc. Andy Petrowski clearly anti-semitic... tweets. We agree with Synagogue B'Nai Israel and the multicultural councils calls for regional council to censure him.”

Judy Haiven writing from Halifax apparently is fully knowledgeable of local Niagara politics. Paragraph three of Haiven's letter states, “At IJV Canada we know a great deal about anti-Semitism” and later, “IJV abhors anti-Semitism.” So since Haiven makes one think that she is aware of the situation in Niagara it is difficult to understand why she and the Independent Jewish Voices Canada remained silent about the Nazi hand salute. After all IJV knows so much about anti-semitism and abhors it so. An opportunity was provided for both Judy Haiven and the Independent Jewish Voices of Canada to comment. No response has come from either of the two emails sent.

Can it be fair to ask what prompted Judy Haiven to make the attack on Councillor Petrowski in a letter where 98% of its content was to support the BDS Movement? Why has the IJV Canada and Haiven stayed silent on the Nazi hand salute by Diodati and Campion? Why has Harold Nash and B'nai Israel St. Catharines stayed silent? Asking such questions of Jeff Burch and his Niagara Folk Arts Multicultural Centre would be a waste of time.

Amongst all the silenced Jewish voices the plot thickens and questions scream out for answers. Is it possible that the abhorrence of anti-semitism has taken a back seat to politics? After all even the Canadian Jewish News (CJN) who wrote a whole expose on the innocuous tweet has stayed silent on a Nazi hand salute.

It has been said that the Nazi hand salute is most likely the most detestable physical action in modern society. There are no possible excuses which take away the connotation of anti-semitism and an absolute disrespect for millions of victims of the Holocaust. In February of 2011, a Canadian tourist standing outside the German parliament raised his hand in a Nazi salute whilst his girlfriend photographed him, was immediately arrested, memory card taken from the camera, and was lucky not to be jailed.

In May 2016 a Scottish man was arrested after posting a video on YouTube of his girlfriend's pet dog, a Pug, doing the Nazi salute with its paw. In March 2013 a Greek footballer was banned for life from playing for his national team – he even claimed he did not know or understand the meaning of the gesture. A British businessman found himself arrested at the Cologne airport for his raised hand in 2008.

B'nai Brith Canada, Friends of Simon Wiesenthal Centre, and Centre for Israel and Jewish Affairs have remained silent on this incident with Diodati and Campion. Why? Seeking clarification, an email was sent to NPCA Chair Sandy Annunziata. Sandy Annunziata did not respond but on his behalf Mayorgate received an email from Michael Reles, Communciations Specialist at the NPCA. Michael Reles said in his response, “The section of the video was removed at the request of our partners in the Jewish community.” Wait a moment, how can any individual or group have the power to force the editing or doctoring of any government records? The same Michael Reles refused to respond when asked who specifically were the “partners in the Jewish community.” Why the secrecy? What has Michael Reles or Sandy Annunziata got to hide?

Well then, which of the big three Jewish organisations is the 'silent' partner with the NPCA and Chair Sandy Annunziata, or is it all of the above? Regional Chair Alan Caslin said after the overwhelming vote by Regional Council to condemn the BDS Movement that it “was based on information provided by those organisations.” Alan Caslin was referring to B'nai Brith Canada, Friends of Simon Wiesenthal Centre, and Centre for Israel and Jewish Affairs as “those organisations.” The Motion brought before Regional Council, which garnished both publicity and accusations against MPP Cindy Forster and the NDP, was by NPCA Chair Sandy Annunziata. Can it be that the big three made a silent deal with NPCA Chair Sandy Annunziata so as to not drop nasty publicity on his board? Now watch for the anti-semitic label to be stitched onto Mayorgate.

On May 18th 2017, during the titillating presentation of his findings by Integrity Commissioner John Mascarin, St. Catharines Mayor Walter Sendzik wanted to know what had happened to a Motion from December 8th 2016. Minutes from the meeting reveal that a Motion was moved by Councillor Augustyn and seconded by Sendzik. This Motion requested council to deny Councillor Petrowski from serving on Committees, Subcommittees, Agency Boards and Commission meetings until he aplogises in writing at a Council meeting for his tweet that was found to be offensive by the community. Finally this Motion was referred to the Integrity Commissioner and yet in May of 2017, John Mascarin had said that he had not seen it. An email was sent to the Regional Clerk asking for some clarification on this issue. It took several days but a response came from the Deputy Regional Clerk, Natasha Devos, to her reply she attached a copy of a letter dated June 20th 2017 from former interim Integrity Commissioner John Mascarin. Mr. Mascarin states, “My view on the aforementioned minute item may now be moot given the decision made by Regional Council on June 8, 2017.”

Mayor Sendzik had made a great deal of noise about the tweet from the time that LaFleche contacted him. Seeking some understanding Mayor Sendzik was asked whether the Nazi salute was less serious an act compared to a tweet. Sendzik's first response opened with, “I will say there is a big difference between what Councillor Petrowski has repeatedly done to offend many people in our community and what occurred at a meeting of the NPCA.” He ignored the question asked and attacked the Councillor on past actions. Sendzik also defended the two mayors on the grounds that they were only mocking another fellow councillor and had done so many times. He said that both had apologised “for offenses that were mistaken as a Nazi salute.”

It is extremely hard to mistake a physical gesture with the arm stretched straight out from the body, the hand flat and pointing out as anything but a Nazi salute. Individuals do not do this kind of gesture to hail a cab, or waive to a friend or seek attention of any kind, at least not the kind they would want. A second email was sent to Mayor Sendzik and his response confirmed the need to examine another consequence of the actions by Diodati and Campion.

In his second response Mayor Sendzik said, “Its actions like these displayed at the board that lead to bullying and harassment if left unchecked in today's society.” Whether it's the Ministry of Labour, the Human Rights Code, the Charter of Rights and Freedoms or any municipality, none permit or condone bullying or harassment. The law stamps down on a bully regardless if he is in cyberspace or on the ground. Mayor Sendzik confirmed in his first email that Mayor Diodati and Mayor Campion had been mocking a fellow Councillor, a co-worker, for a long time. Yet no one found reason to mention this. The Standard and Grant LaFleche said nothing, and since Mayor Walter Sendzik had known about this and clearly found it distasteful, why did he remain silent? It was only through an email exchange with Mayorgate that he made this clear. As far as Diodati and Campion are concerned they made no apologies on this issue even when caught.

So not only has the Nazi hand salute found itself waived on through with no consequence, evidence of workplace harassment has simply been ignored. To add further to this impressive list of transgressions is the openly admitted fact by NPCA Chair Annunziata that government records, in the form of the video had been edited. Michael Reles of the NPCA claims in his email that the video is not an official government record, that the only official record of the board meeting are the Minutes. Webster's describes official as, “by, from or with the proper authority, authorized or authoritative.” Examining the seventeen pages of the 58th Annual General Meeting Minutes there is no mention of any kind of hand raising. The video is made by the NPCA for the NPCA with their authority and only with their authority. Now 'silent' partners have been able to wield outside pressure to doctor that government record. How is this possible? A better question is what happens when there is an investigation or inquiry and the evidence had been intentionally altered and destroyed?

Grant LaFleche wrote a second article titled 'NPCA on slippery slope by editing video, says Brock prof', June 15th 2017. Brock University Political Science Professor David Siegel was also contacted by Mayorgate for comment on something other than a slippery slope. Professor David Siegel said that he was “...not a lawyer, so [he doesn't] have any expertise about the rules of evidence.  However, it seems logical that the best evidence would be a complete unedited recording of an event.  Any deviation from that would raise questions about what was edited out and why was it edited?”  

Chair Annunziata had erased the section of video which proved the Nazi salute, it was an official government record, so now what happens in an investigation or inquiry? Was this because he made a silent deal with the Jewish organisations or did Annunziata have his own reasons? Doctoring records is wrong no matter who you are, as former Premier McGuinty found out clearly. For the NPCA and its Chair Annunziata, the 'what if' is in fact a reality - an investigation request had been filed with the Region. John Mascarin, interim Integrity Commissioner, had responded to the investigation request stating that it was out of his jurisdiction because the NPCA is a separate corporate body with its own Code of Conduct. He had advised the investigation request be filed with the NPCA, which it will be, and it will be an interesting exercise considering Chair Annunziata's actions to date.

In the end the goose paid a very heavy price. Those regular cast members in the extras gallery of councils, the social warriors: Jeff Burch, Haley Bateman, Perry Schlanger, had faded behind the curtain of duplicity it appears. Grant LaFleche proved the case on the issue of faux news, and The Standard is after all the standard. Councillor Petrowski still faces jabs; on July 7th 2017, The Standard published the article 'Regional council can't agree on code of conduct' by Bill Sawchuk, who writes: “The social media activity of St. Catharines Coun. Andy Petrowski over an anti-semitic video the councillor posted on Twitter in December, Petrowski – who removed the tweet in question – denied he intended any attack on the Jewish Community.”

Bill Sawchuk is the Standard's journalist who in May sat through the court hearing of a Motion by Petrowski and Fred Bracken totally ignorant of court procedures. Bill tweeted, took notes and reported the he said/she said version, and Bill missed a great deal. He missed the fact that the lawyer for the Region intentionally kept information from the judge. He missed the question of intentional and willful obstruction of justice. He also missed how a judge makes a ruling towards one party to an action but then ignores the other party's identical breach. Bill Sawchuk also has not made a sound on the Nazi hand salute and that is a curiosity. Even an old proverb seems to have faltered in Niagara.

Friday, June 30, 2017

Opportunity Lost

If one was to take a stroll down the corridors of power what questions would beg to be answered? Then, depending on which house one enters, whether it be where authority wields armies or international economies, or the budget decor of local municipal politics, do those questions lose or gain volume and prominence. Integrity and equality have been lost in their translation form the pages of documents which supposedly guarantee our dignity and freedom, regardless of which house you choose to tour.

So what do we do to overcome the shortcomings of reality, when a desire for power seduces individuals away from the lofty ideals of integrity, honesty, etc. We institute various governing bodies and authorities with powers to investigate and adjudicate on complaints received. One such individual comes in the guise of an Integrity Commissioner. That title alone resonates with virtue and fairness, does it not? In fact by 2018 the Provincial Government lead by Premier Wynne will mandate that all municipalities hire an Integrity Commissioner.

This Integrity Commissioner has the power to investigate any and all complaints raised against local government and those we elect to represent us at the most basic level. The powers and authority of the Integrity Commissioner have been set out in the Municipal Act under Part V – Accountability and Transparency, subsection 223.3. In this subsection all the powers and authorities are fully described as to what the commissioner can do. Yet the Municipal Act falls drastically short on one important issue, and the recent Modernising Ontario's Municipal Legislation, Bill 68 with its amendments does nothing at all to remedy the situation.

The issue in question is procedure, there are no common set of procedural boundaries. It is difficult to comprehend how all the lawyers and experts who sat to thrash out the Municipal Act with its typical government language forgot to set into subsection 223.3 any rules for an investigation by an integrity commissioner.

Our criminal system of justice works within a framework of rules and boundaries. Our judicial system, whether criminal or civil, with its Rules of Civil Procedure, operate within clear boundaries. Yet the integrity commissioner, who is the investigator, judge and jury, has no clear procedural rules. Each one of these commissioners can conduct themselves as they see fit.

Since there are no rules set out in the Municipal Act and no 'How To' handbook for integrity commissioners then only expectations exist. First, naturally, would be that the individual chosen will understand law, the Municipal Act and codes of conduct. Second and equally important is that the chosen commissioner will be completely impartial. He or she cannot have any business ties or associations to the municipality nor any political associations locally. There can be no questions raised as to the motivation of the chosen commissioner.

All this being said the Regional Municipality of Niagara found itself and its Chair, Alan Caslin unable to cope with the number of complaints against regional councillors. Previously the Regional Council had voted against the cost of an integrity commissioner and believed that its Chair could handle any investigations. Now with its Chair Caslin faltering with the volume of complaints and 2018 looming in the distance, an interim integrity commissioner was chosen.

John Mascarin, lawyer and partner in Aird & Berlis LLP, was chosen. Mr. Mascarin was called to the bar in 1989, certified by the Law Society of Upper Canada as a specialist in Municipal Law, and teaches at Osgoode Hall. Criteria number one appears to be comfortably satisfied. In addition to his credentials John Mascarin had also conducted an investigation in the City of St. Catharines and most likely had a good recommendation from the Mayor of St. Catharines, Walter Sendzik.

So although his credentials appear nice enough, he carried with him baggage that should have disqualified him as the integrity commissioner of choice for Niagara, at least logic would definitely suggest that. John Mascarin's law firm of which he is a partner, Aird & Berlis LLP, represents the Chinese developers who are planning a large residential and commercial development in Niagara Falls.

Niagara Falls is, at this stage, the 'it' place in the Niagara Region for development. The obvious reasons are its visibility with its Falls, entertainment values such as the Casino, and its proximity to the US border, all of which had not been lost on the Chinese. Developer Ted Zhou, President of Evertrust Development is throwing up a condo complex worth some $100 million. The other planned project called Paradise is somewhat more ambitious. Here the estimate is $1.5 billion, and GR (Can) Investment Co. Ltd. from Hong Kong has CEO Zhiying Chang promising residential, commercial and even a wetland thrown in.

It is easy to understand why the Niagara Region and its government would be hungry for both. John Mascarin as a partner in Aird & Berlis LLP would be privy to all kinds of information in the negotiations on behalf his of clients, the developers, and the Regional Municipality of Niagara. Regardless of whether Mascarin's law firm represents $100 million or $1.5 billion how can he sit in judgment of any government member in the Niagara Region?

Regional Chair Alan Caslin had said that the process of selecting a permanent integrity commissioner was a lengthy one. For that reason John Mascarin was chosen as interim integrity commissioner so as to expedite the leftover investigations. Yet when a complaint was filed against Chair Alan Caslin, John Mascarin excused himself on the point of conflict. A substitute commissioner, Harold Elston, was found rather quickly enough who presented his report and clearance of Alan Caslin at the same time as Mascarin's departure. Now here is the nagging and alarming question: if Mascarin found himself in conflict to investigate Chair Alan Caslin how is it that no conflict arose in investigating any other member of Niagara's government? Who is to say that as Chair, Caslin would have greater knowledge or impact on negotiations than the rest of Niagara's council? In a democracy, and we still are a democracy one would think, the whole of government votes on approvals for any development, not the Chair alone.

The investigation against Caslin related to a communication he had with Premier Wynne regarding the development by Aird & Berlis LLP's Chinese clients. John Mascarin could not allow even a plausible question which would hint at conflict, yet how can the same point not apply to any other regional councillor?

Another question begs attention, and questions here pop up like skin blemishes after the Clearasil dries up. If a complaint was lodged against the Mayor of Niagara Falls Jim Diodati, would Mascarin as Niagara's Integrity Commissioner excuse himself again for conflict? Yet Diodati is only a Councillor on Regional Council, equal standing to all regional councillors. He may be the Mayor of Niagara Falls but here he is just one of the boys and girls. Will John Mascarin invoke a selective conflict of interest? Is that what the Municipal Act would permit?

How is this possible to continue? John Mascarin clearly has conflict issues and all of Niagara's Regional Government members seem to simply choose silence. Maybe a bigger question should be aimed at the brilliant journalists here in Niagara. Bill Sawchuk of The Standard and Paul Forsyth of Niagara this Week drop a sentence at least once in their articles mentioning Mascarin's conflict issue, but as journalists do not find reason to ask any further questions.

The whole issue of integrity commissioners extends even further than this conflict question. What is the real value of their investigations beyond the dollars and cents they rake in from taxpayers pockets? Bill 68 brings forth some amendments to the Municipal Act, claiming to modernise it to some degree. Yet it still won't deal with the most crucial part, that integrity commissioners have no set rules to how their investigations are conducted. Their powers are explained in subsection 223.3 of the Act, but no procedural outline is laid out. In the end it is up to each commissioner to interpret his or own methodology. Is that then what can be considered procedural fairness?

Then picture this: a police officer views a security video which shows a break-in. The thief is clearly identified as not wearing a mask, only gloves. This police officer arrests the culprit, drags him to a judge, does not question him. In front of the judge the prosecutor recommends a penalty and brings forward the record of the culprit. As a result the judge passes sentence. Remember the integrity commissioner is the investigator, prosecutor and judge; talk about inflated power. This scenario has not ended, the police officer, prosecutor and judge discover the culprit has an identical twin. Remember the security video only exposed the face and no prints because of the gloves. In the criminal justice system there are procedures and although a fun scenario this would not happen. Questions would be asked and information gathered before any sentence is handed down.

The whole system of integrity commissioners and their investigations is not simply flawed, it is in fact a fraud at this point. It truly is a cash grab for the selected few and a game of smoke and mirrors. Here in Niagara John Mascarin had arrived with no procedural guidelines and only his own interpretations in his briefcase. The law firm, Aird & Berlis, which he is a partner of, is acting on behalf Chinese clients involved in multi-million dollar developments in the Niagara Region, yet neither Regional Chair Alan Caslin nor St. Catharines Mayor Walter Sendzik saw anything amiss with that.

Regional Councillor Andy Petrowski had three pending complaints against him. Mascarin conducted his investigation of Councillor Petrowski, the accused, without speaking to him. He spoke with the accusers and claimed he had enough factual evidence to make his decisions and draft his reports. After making his decisions, as a throw-away line he offered the accused an opportunity to comment. What was the point of such benevolence? The decisions were made; can Mascarin with a straight face say he would change his mind?

Mascarin also conducted investigations of two other Regional Councillors, but did he speak to both the accuser and the accused? Regional Councillors Heit and Edgar were contacted by email regarding this issue. Both Councillors responded, Councillor Heit stated, “Since he didn't find any wrong doing. The only contact I had was after his report was complete,” and Councillor Edgar said “I learned about the complaint after he had dispensed with it and before the results were made public.” In both these cases Mascarin saw no basis in the individual complaints and could reason that there was no constructive purpose to speak to Councillor Heit or Councillor Edgar. Petrowski's three complaints were seen to be legitimate enough for investigation yet Mascarin saw no reason to speak to the Councillor prior to drafting his report.

Integrity Commissioners are needed and codes of conduct for our elected members of government are definitely required. At the same time a definitive set of rules must be put in place under which each investigation can proceed to ensure each and everyone accused of misconduct is treated equally and fairly. Otherwise our tax dollars go into the pockets of commissioners like John Mascarin who leave more unanswered questions than any draft or report filed.

At this time it would be prudent to make reference to Di Biase v. Vaughan (City), Divisional Court File #309/15JR 2016. This action revolved around questions of administrative law, natural justice, duty of fairness, procedural fairness and more, all centered on an integrity commissioner's investigation and report accepted by Vaughan's City Council. Deputy Mayor Di Biase objected to the investigation and final decision. One major point that comes through the decision by the Justices' of the Divisional Court is heading (vi) The choice of procedure. Quoting paragraph 131, “Indeed, the members of the City of Vaughan Council are the persons investigated by the Integrity Commissioner. The Councillors have codified the procedure or protocol for investigations of complaints about themselves in a bylaw entitled Complaint Protocol for Council Code of Conduct.”

How much of the taxpayer dollars had been spent on revamping the Code of Conduct by Integrity Commissioner John Mascarin? Value for dollars does not exist here not for council members, the only value visible is in the revenue column of Aird & Berlis LLP. Councillors need to know how an investigation is conducted, within what procedural boundaries and not simply open to the whims of interpretation. Otherwise any councillor is open to a political machine ready to demonstrate its power, and influence.

Welland Courthouse - Welland, Ontario

Regional Councillor Petrowski, preparing for the inevitable fallout of Mascarin's 'investigations', believed that his freedoms and rights guaranteed under the Charter of Rights had been diminished by the Code of Conduct for Members of Council. He filed an application challenging the code of conduct on constitutional grounds and had filed for a Motion to be heard requesting an injunction to be placed on the release of the Mascarin reports.

It is irrelevant what any opinion there was as to the motivation behind the actions of the Councillor. As a Canadian citizen he had made a request to be heard before the court of this great land. Doing so, as any Canadian should, he had an expectation of absolute equality before the law.

Filing a Motion requesting an injunction requires some rudimentary understanding of civil procedures, unfortunately Councillor Petrowski had little, if any. As a co-applicant he had chosen a local Niagara activist Fred Bracken. Frankly there was no understanding why Fred Bracken was attached to the Motion or application challenging the Regional Code of Conduct.

Fred Bracken is a local voice who has challenged Regional Government, the Niagara Regional Police Service and others. He had successfully fought against a false arrest and maybe that was the reasoning behind his attachment to the application and the motion. Bracken had never been on any municipal council nor had he been employed by a municipal government.

The Motion hearing was set for May 10th 2017 and it was to be heard by Justice David L. Edwards at the Welland Courthouse. Both Councillor Andy Petrowski and Fred Bracken were self-represented. The Regional Municipality of Niagara was represented by a Toronto lawyer Sachin Persaud from Boghosian & Allen LLP.

Councillor Petrowski and Fred Bracken had chosen the Regional Municipality of Niagara, Integrity Commissioner John Mascarin and some twenty-four individual Regional Councillors, as respondents to their Motion. It is difficult to understand why the individual councillors were named as respondents, equally at question why some of the regional councillors had been left off the list.

In all civil legal action The Rules of Civil Procedure govern every step from the opening Notice of Motion, advising intended motion to be filed through to the final stages in court. This meant the Councillor and Bracken had to serve each individual chosen respondent with the full set of documents. The service has to be in person to each respondent, ten days prior to the hearing date, and an Affidavit of Service has to be filed at the Courthouse. All of this is simple: the clerk at the court's office would have to review each Affidavit of Service before accepting them into record.

It has been confirmed through the Clerk's Office at the Robert S.K. Welch Courthouse in St. Catharines that the Rules cannot change. A motion filed before the court must have each respondent served in person and an Affidavit of Service separately prepared for each respondent. This is not the Bulk Barn section of the courthouse, nor are the Rules ever accommodating towards anyone. In addition to proper service Form 37B Confirmation of Motion must be prepared by the moving party. This document estimates the time each side will need to present their motions before the judge and it also releases all the material related to the matter to the judge. None of these steps can be avoided, nor are they negotiable. How was it possible to have this Motion pass the Clerk's Office is very difficult to explain.

However it was possible, this Motion found itself slide past the Welland Court's Clerk's Office and be listed for hearing. Hearing this Motion was Justice David L. Edwards, at the Welland Courthouse on May 10th. Justice Edwards had been called to the Bar in 1977 and after spending time with Lancaster, Brooks & Welch LLP he was chosen to replace Madam Justice B. Wein in 2012. He had held positions on the Ontario Civilian Police Commission, the Board of Trustees of Brock University from 1994 to 2005, and is deeply connected to arguably the most important annual event in Niagara, the Rankin Cancer Run. Justice Edwards is rooted in the social fabric of the Niagara area.

The Niagara Region hired a Toronto lawyer Sachin Persaud, a seasoned lawyer called to the Bar in 2006, joining Boghosian & Allen LLP in 2014. Niagara's Regional Solicitor H. Sterling Wood, himself a lawyer with more than a quarter of a century of legal experience, was nowhere to be seen on May 10th.

Standing before Justice David L. Edwards were Regional Councillor Andy Petrowski and Fred Bracken, they were self-represented. The opening half hour of the hearing set the tone for what was to be the finale. Justice Edwards questioned Fred Bracken's position as a co-moving party to the Motion. After all the purpose of this Motion was to request an injunction so as to stop the public release of three integrity commissioner reports prepared by John Mascarin against Councillor Petrowski.

Justice Edwards questioned the validity of Bracken's position as he was not a Regional Councillor nor had he ever been. It was impossible to understand how the Regional Code of Conduct for Members of Council could affect in any way a member of the public. Bracken tried to argue repeatedly that he may at some point in the future wish to run for council and the code of conduct would have relevance then. When that failed Bracken tried to argue a position as a public litigant. That failed equally and Fred Bracken was dismissed from the Motion Hearing. He was told by the judge to remain in court for the final cost allocation but Fred Bracken left the courthouse, leaving his pal Councillor Petrowski on his own.

All civil action through the Superior Court of Justice is governed by the Rules of Civil Procedure. This is the bible, it is the baker's recipe book and no improvisation is permitted not even an ounce, otherwise it all falls flat. As publisher of this website there is first-hand knowledge and experience with the Rules. Councillor Petrowski was completely ignorant of the Rules and their absolute and crucial relevance to each step he had to take to reach the courtroom where he stood.

First in any civil action, this being a motion hearing, is the service of the Motion Record by the moving party. Councillor Petrowski and Fred Bracken were the moving party and they had named the Regional Municipality of Niagara, Integrity Commissioner John Mascarin, and twenty-four Regional Councillors individually as respondents. This meant that each and every one of these respondents had to be served individually and in person. For each of these respondents an Affidavit of Service had to be prepared outlining the individual served and where service had been completed. Each of these Affidavits of Service have to be certified and witnessed at the clerk's office, in this case at the Welland Courthouse. Petrowski would had to have filed twenty-six individual Affidavits of Service with the court's clerk and examination of the court file #11599/17 at the Welland Courthouse shows only two affidavits by Petrowski: one for Integrity Commissioner John Mascarin and another which made no sense with Councillor names, and the Region of Niagara.

Here is an alarming question, how was it possible for Councillor Petrowski to file his material without the proper Affidavits of Service? A lengthy conversation with a clerk from the St. Catharines courthouse confirmed what was already known. No material will be accepted to be filed without proof of service. In Canada regardless of which province, our justice system is expected, and guaranteed to be fully open and transparent. We do not permit any action before the court, any court, on an ambush basis.

Proper service of all material is critical and unequivocal in all actions before the Civil Court, as is another document Form 37B, Confirmation of Motion. This is not a requirement in Small Claims Court but it is required in Civil Court. Confirmation of Motion is prepared by the moving party and it has two functions. First, it provides an estimation of time to be taken presenting their motion and responding motion. Second, it opens the material to the presiding judge as all the material for his or her consideration must be listed. Although the moving party is required to file Form 37B, it is only done so after consultation with the lawyer for the respondents. Sachin Persaud was fully aware of this requirement even though Councillor Petrowski obviously was not, yet Sachin Persaud remained silent. In fact it was not brought to light by the presiding judge, Justice David L. Edwards.

It is difficult to understand how this action could possibly proceed in court and yet the most disturbing legal questions result from the actual hearing. After the first thirty minutes when Fred Bracken was dismissed from the motion, Councillor Petrowski was left to face what was to come on his own. His lack of understanding of the basic procedures opened the door for atrocities to be committed against our justice system, but only for the day.

Sachin Persaud of Boghosian & Allen LLP in his Factum of the Respondent, The Corporation of the Regional Municipality of Niagara stated on page 18 in bold print, “Issue #4: The application materials were not served pursuant to the rules and the applicants had sufficient time to do so.” Persaud was correct to raise this issue, Councillor Petrowski had not properly served all the respondents. As already stated each respondent had to be served in person and a separate affidavit filed.

Justice Edwards brought this issue forward and after listening to Petrowski's explanation and Persaud's response had only one choice open to him. Justice Edwards dismissed the action against all the twenty-four individually listed Regional Councillors. Rules of Civil Procedure, Rule 38.06(1) state, “the notice of application shall be served on all parties.” Further at 38.06 (2) it states, “Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served the judge may, a) dismiss the application or dismiss it only against who was not served; b) adjourn the application and direct that the notice application be served on the person; c) direct that any judgment made on the application be served on the person”

Half of Petrowski's Motion now had been dismissed and the rest of the hearing proceeded in much the same manner. At the end Justice David L. Edwards ruled against the Motion by Councillor Petrowski. It was the final stage now with the cost allocation. One of the listed costs by the Toronto lawyer, Sachin Persaud, confused the Councillor and he requested clarification. Persaud stood to explain it was the cost of service of material.

At this stage, our judicial system, our guarantee of equality before the law, everything that we value in our democratic society was burned to the ground. Councillor Petrowski stated that he had not been served any material by Sachin Persaud. Persaud admitted that his process server had attempted to serve the Councillor at 8:00 p.m. on May 8th 2017 but was not successful. He referred to his Affidavit of Service which had recorded this to be true, he also said that he had successfully served Fred Bracken. Justice David L. Edwards rummaged through the material and found the affidavit by Persaud but made no comment.

Back to the Rules of Civil Procedure, which Sachin Persaud had referred to in his Factum on page 18. Now it is 38.07 Notice of Appearance (1) “A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance. (2) a respondent who has not delivered a notice of appearance is not entitled to: a) receive notice of any step in the application; b) receive any further document in the application; c) file material, examine a witness or cross-examine on an affidavit on the application; d) be heard at the hearing of the application”

Justice David L. Edwards had earlier dismissed half of the Councillor's Motion on the grounds of the Rules section 38.06. He took time to publicly chastise the Councillor in open court on the process within the judicial system. Now Justice Edwards was made aware that the lawyer representing the Region of Niagara, Sachin Persaud of Boghasian & Allen LLP had withheld information that he had not complied with the Rules, subsection 38.07. Yet Justice Edwards ignored this fact and simply proceeded with costs.

How could Justice Edwards ignore this? Sachin Persaud, an experienced lawyer intentionally withheld from the court information relevant to the matter being heard. He even argued against the applicant on the identical issue before the judge. Can this be considered as intentional obstruction by lawyer Sachin Persaud? Is Justice David L. Edwards equally culpable?

Journalists who sat through the hearing, Bill Sawchuk of The Standard and Melinda Cheevers of Niagara this Week simply parroted the 'he-said-she-said' version. None of these journalists understood anything of court procedures and did not comment on this.

All Regional Councillors had been given an opportunity to comment, not one has responded. Chair Alan Caslin was asked to comment, he has stayed silent. Lawyer Sachin Persaud was given an opportunity to comment and it's not surprising that silence is his response at this time.

How was this possible in Canada? How can our system of justice, which claims to support the ideals of equality and transparency permit this? Is it possible that a judge was more concerned with his own words of wisdom in his ruling, over the very rules that govern every action before him? So many questions scream for attention for an answer. How was this Motion able to proceed with so many breaches of the Rules of Civil Procedure? A more alarming question is why did it?