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?

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