By Dave Flaherty/The Oshawa Express
A conflict of interest complaint against Oshawa’s mayor will not be moving forward, rules the city’s integrity commissioner.
The complaint was made because Mayor Dan Carter voted on Welcoming Streets, a program meant to improve relationships between homeless individuals and downtown owners.
Jeff Davis, a resident well known for questioning the transparency at city hall, made the complaint.
According to Davis, Carter should have declared a conflict of interest instead of debating and voting on the development of the Welcoming Streets Program, a partnership between the city, Downtown Oshawa BIA, and Carea Community Health Centre, which began on a pilot basis in October.
Specifically, in his complaint, Davis was of the opinion Carter shouldn’t have participated as he owns a business in the BIA catchment area, and his wife Paula is employed by Carea.
According to the report released by Integrity Commissioner Guy Giorno, Davis argued Carter had previously declared a pecuniary interest in matters relating to the BIA and Carea.
Also, he believes Carter’s wife has a pecuniary interest, which by extension, becomes one for the mayor as well.
According to submissions made to Giorno, Davis also pointed out Carter has referred to the Welcoming Streets program as a “personal priority” that relates to causes the mayor “personally champions.”
According to Giorno, legal counsel for the mayor acknowledged Carter possesses a “deemed pecuniary interest” due to his wife’s employment with Carea.
However, the mayor’s legal team argued, as per clause 4(k) of the Municipal Conflict of Interest Act of Ontario (MCIA), this interest is so “remote” that any “reasonable elector” aware of “all the circumstances,” wouldn’t regard it as having influenced his decision-making on the matter.
According to Giorno’s ruling, Carter’s lawyers provided the following reasons, among others, for why the situation falls under the exception clause:
– Though his wife is employed by Carea, she is not directly involved with the Welcoming Streets program.
– The program has no impact on his wife’s salary or benefits, and there is no evidence the $50,000 city council provided is meant to support Carea’s financial viability.
– Carea has no discretion over the use of the funding, which was specifically meant to hire an outreach worker for the Welcoming Streets program.
Carter’s legal counsel also argued the mayor “acted in good faith and for no other interest other than that of the community he was elected to serve.”
They also pointed out Carter had previously declared a pecuniary interest on eight previous occasions regarding issues of funding or waiving fees for Carea.
In the end, Giorno ruled he didn’t feel it was appropriate for him to make an application to a judge on whether Carter contravened the MCIA.
In the ruling, Giorno stated it is possible, though not certain to him, that Carter’s pecuniary interest fell under the Act’s exception clause.
However, he referred to a recent case in the Ontario Court of Appeal, Ferri v. Ontario, that declared several subjective factors must be considered in whether a pecuniary interest is so significant b its nature “cannot reasonably be regarded as likely to influence” the actions of a councillor.
The factors include the length of a councillor’s “faithful” service, whether the councillor was acting in “bad faith or good faith” and is motivated by a potential benefit, and whether the matter in question is of “major public interest.”
Lastly, Giorno said when a pecuniary interest is of a councillor’s relative, it must be considered whether the councillor is representing their constituents and not the relative.
“It is not my place, as a municipal integrity commissioner, to ignore the interpretation of the Ontario Court of Appeal that public-mindedness and unselfish motives may be sufficient to obviate a conflict of interest,” Giorno wrote in his ruling. “The mayor has stated that he acted in good faith, motivated solely by the public interest, on a matter of importance to his constituents. On the basis of Ferri v. Ontario, his deemed, indirect pecuniary interest is of a remote and insignificant nature as described in clause 4(k). The interest did not need to be declared, and Mayor Carter did not need to withdraw from debate, voting, or influencing others.”
As previously reported by The Oshawa Express, Davis had publicly questioned Carter’s voting on the matter during the council meeting it was approved.
At that meeting, Carter defended his involvement, stating he wasn’t going to declare a conflict of interest because “people are dying in our streets.”
Carter said he had recently witnessed a young woman overdose on opioids near a municipal parking lot.
“If that was my granddaughter, I’d hope the mayor who witnesses that never forgot what he saw, and does everything he can to stop it,” he said. “If you want to throw me out of my seat because of that, you go ahead and do that.”
Speaking with The Express, Carter reiterated his belief that as head of council, it is important he was involved in the decision-making process, specifically because Welcoming Streets involves the opioid crisis which has hugely impacted Oshawa and its downtown.
Davis said he was “disappointed” with the ruling, especially when considering both sides agreed a conflict did exist.
He said he still believes the conflict was sufficient enough for Carter to declare it, and is considering the appeal process of Giorno’s decision.
“I am of the opinion that conflict of interest is an extension of the accountability and transparency of municipal government, which continues to be lacking in the City of Oshawa,” Davis said in an email to The Express. “At some point, the cycle has to change, but to date it would appear, justice is only served to those who can afford it.”