Decision of Justice van Rensburg – April 29 2013 (500kb PDF)
AUDITED RETURNS BEING CHALLENGED
There have been many questions surrounding the September 19, 2011 by-election, Councillor Ward 5, not the least of which involves a series of audit requests made on several candidates’ returns. I was, and continue to be, one of those candidates whose audited returns are being challenged. I would like to clarify what has taken place.
As is required, I submitted complete financial records including photocopied cheques, invoices, bank statements and a list of donors and amounts, to be audited by a reputable Chartered Accountant as is required of anyone who spends more than $10,000 in a municipal election campaign.
AUDITED STATEMENTS: UNDER LIMIT AND ON TIME
The accountant reviewed every document, matched the figures to the requirements of the Municipal Elections Act and completed the required forms to be submitted to the Clerk’s office. My forms were under the spending limit and submitted on time.
The form completed by the CA and submitted to the Clerk clusters spending into categories. It also records and values materials carried over from previous municipal elections and materials remaining at the end of the campaign.
PROCESS FOLLOWED RE RENTING CAMPAIGN OFFICE
The section of my return that continues to be questioned involves the valuation placed on the rental of a temporary campaign office in a plaza on the corner of Mavis and Bristol Road.
When I called the owner to inquire about a vacant storefront in that plaza July of 2011, I was told Subway Sandwiches had just leased it for ten years and it was only temporarily vacant. The unit was to be renovated by the landlord and ready by November 1, 2011. The election date of September 19th allowed enough time after, for the lease hold improvements but the owner would have to get permission from the franchisee to allow temporary occupancy for a political campaign. Permission took about a week to obtain.
RENT, INSURANCE AND UTILITIES: $1726.35
As a short term tenant without a lease, I was not covered under the plaza’s liability insurance. The building owner required that I obtain my own insurance policy, which I did at a cost of $756.00. This amount was recorded on my financial return as an office expense.
Another requirement of the landlord’s was we would have to clean up the considerable debris left by the previous tenants ourselves, which we did using volunteers, over several days.
All this delayed the full operation of the office. In fact the scheduled opening took place in a cleared spot in the front of the office and on the sidewalk outside.
I provided a payment for quarterly equal billing gas which amounted to $220.35 to cover the utilities used during the weeks we used the premises I also provided the landlord with a $750 In Kind receipt for rent despite his suggesting I accept the space for the agreed cleanup, insurance and utility payments. The total recorded value for the office space on my financial return was $1726.35 – well in excess of any amount I’d paid for any other federal or municipal campaign in the past.
Campaign offices are by their nature exceedingly temporary, often catching landlords between tenants. Most landlords charge minimal rent and are happy for the hustle and bustle of campaign workers who spend money in restaurants and other stores in the vicinity.
The agreement with the building owner was finalized well before the budget for the rest of the campaign was laid out and knowing what impact the office would have on my spending limit.
ELECTION FINANCES REVIEW COMMITTEE ESTABLISHED
Under the revised MEA, a new process was instigated whereby financial returns can be viewed online and members of the public can challenge them before a committee of citizens appointed by Council. These citizens apply and are interviewed by the Clerk and other City staff, to discern their financial expertise and knowledge of the elections act. Prior to these amendments, citizens would present their concerns directly to Council, allowing the possibility of political bias. 2010 was the first election under the new Citizen Committee process.
FINANCIAL RETURNS QUESTIONED
Greg Vezina, who was entirely unknown to me and neither worked on my campaign nor had any knowledge of its financing, requested an audit of my returns – focusing particularly on the amount of rent I’d paid. A hearing date was set and I attended with the full binder of bank statements, cancelled cheques, invoices etc that I’d presented to the Chartered Accountant to be audited. I did not hire a lawyer because I assumed Mr. Vezina’s questions could be cleared up easily by letting him, and the committee, view my detailed documents. I also expected he would understand the financial details, once explained, as he had some experience with municipal campaign issues from working on the Crombie campaign:
Mr. Vezina seemed to believe I’d rented an office in 2010 for more than $3000 because the “Office Expenses” category on the short accounting form provided to the Clerk actually included all office expenses such as stamps, envelopes, letterhead etc. In fact, in 2010 I did not rent a campaign office. I used my home and garage for the campaign, and therefore did not spend anything on office rent. I believed this misunderstanding could be easily cleared up in the Committee hearing.
COMMITTEE VOTES UNANIMOUSLY TO DENY AUDIT
The Committee accepted my explanations and voted unanimously not to proceed with a Comprehensive Audit of my 2011 returns. These audits, when ordered, are time consuming, invasive and can potentially cost the City and taxpayers well in excess of $100,000.
VEZINA APPEALS COMMITTEE DECISION
Mr. Vezina, decided to appeal the committee’s decision to provincial court within the 15 days allowed and a hearing date was set.
Council, for reasons unknown to me, decided not to send one of the staff lawyers who had attended the hearing and listened to the questions and answers provided on Mr. Vezina’s concerns. Instead, the City hired an outside lawyer to defend the Committee’s decision, at considerable expense.
Further complicating the task for the lawyer retained on short notice by the City, the committee hearing was not recorded and there was no transcript of the proceeding. There is, however, an unofficial recording that can be viewed on YouTube – click the video below to view, or click here to view on YouTube.
I was advised by the City that I did not require my own lawyer but decided it would be prudent to be professionally represented.
The appeal was heard at the Ontario Court of Justice by Justice Duncan who expressed frustration that the lawyer representing the City’s Committee could not answer questions with respect to what took place at the Committee Hearing. Mr. Vezina represented himself and was allowed considerable leeway in again making a false comparison between my supposed 2010 rent in excess of $3000 and a $750 figure for 2011 which did not include insurance or utilities.
JUSTICE DUNCAN ALLOWS THE APPEAL and ORDERS an AUDIT
Justice Duncan allowed the appeal and ordered a comprehensive audit of my financial returns on what he termed “bargain basement” rent of $750. Justice Duncan stated in his decision that he made no judgment on whether I had in fact breached the Act.
During the hearing it was speculated that an audit would cost approximately $50,000. We have learned a similar audit ordered on a councillor in 2001 was actually $81,000. It is estimated it will be well over $120,000 in 2012.
APPEALING JUSTICE DUNCAN’S DECISION
I have appealed Justice Duncan’s decision to the Ontario Superior Court of Justice. This appeal is scheduled to be heard in March. The notice of appeal is attached (Click here for PDF).
VEZINA FILES A PRIVATE COMPLAINT BEFORE A JUSTICE OF THE PEACE
Several days after receiving Justice Duncan’s decision, Mr. Vezina also filed a private complaint before a Justice of the Peace at Burnhamthorpe Court, thereby instigating a parallel procedure on the same essential charges. Again representing himself, and behind closed doors, Mr. Vezina presented his version of the facts to the JP. I did not have an opportunity to hear his statements nor address them in any way. The JP issued a summons for November which was delivered to my home by an officer sent by Peel Regional Police.
A Crown Attorney was assigned to this case. My lawyer prepared a defense, including obtaining the attached evaluation from Charles Benton (CLICK HERE FOR PDF), an Ontario Certified Appraiser from a very reputable firm.
CHARGES WITHDRAWN BY CROWN
We attended court November 20th at which time the Crown, who had reviewed the materials from both sides, took carriage of the case and indicated to the JP presiding that the crown was withdrawing the charges due to the fact that the matter was proceeding under the audit provisions of the Act. The charges were withdrawn and fortunately that decision is not subject to appeal.
ONE MORE STEP TO GO
I remain confident in the justice system and expect to be successful on the appeal of Justice Duncan’s decision to order an audit, in March 2013. There is no new information to be gained from conducting an audit as there are no allegations that I failed to report expenses. The issue is whether the rent reported reflects the intent of the Municipal Elections Act Section 66 (3)(a)”Contributions: Value of goods and services: if the contributor is in the business of supplying these goods and services, the lowest amount the contributor charges the general public in the same market area for similar goods and services at or about the same time.”
The Municipal Elections Act, Section 81(15) further cautions: “Recovery of Costs: if the report indicates that there was no apparent contravention and the committee finds there were no reasonable grounds for the application, the Council or local board is entitled to recover the auditor’s costs from the applicant.”
A GRUELLING, EXPENSIVE PROCESS
The process to date has been gruelling and expensive. My ultimate success will have cost me tens of thousands of dollars. It has also cost the City over $20,000 for outside legal representation. It has cost the taxpayers of Ontario tens of thousands in court time. It has cost Mr. Vezina nothing except his time, of which he seems to have a great deal.
I look forward to the March hearing and will update this website with the results of the appeal.
I have run in two major Liberal nomination races, four federal campaigns and six municipal campaigns. I have relied on an extremely reputable CA to audit those campaigns. I have always taken my responsibilities under the Act very seriously and used great care to ensure my financial returns were complete and accurate.