Special Meeting Of Council Report
By John Swartz
Thursday evening’s special meeting of council happened according to plan, sort of. 40 people attended the meeting (as opposed to 96 at the first meeting in April on the subject of Strong Mayor Powers), but that could have been because the meeting was livestreamed (the first wasn’t).
The main feature of the meeting was a presentation by John Mascarin of Aird and Berlis LLP. He has worked extensively with municipal matters and serves as integrity commissioner for several communities. He walked council trough each point of the legislation and gave his opinions of the effectiveness and pitfalls inherent in what turns out to be a hastily, poorly written change to the Municipal Act.
“Before I hand it over to you, I ask for a quick favour. In your presentation to Springwater (Township) recently, when describing AMO’s approach to strong mayor, you said it was Lacksadaisical (sic) and, your words, Nansy-Pansy. I request you not use such homophobic slurs in your presentation tonight,” said Mayor Don McIsaac.
That perked everyone’s attention and Mascarin appeared taken aback.
“Thank you very much for the opportunity to appear here. I didn’t realize that any of those references of the terrible comportment of AMO with the Strong Mayor Powers was at anyway homophobic. I disclaim that was any kind of intent on my part,”
To be clear, the term Nansy-Pansy is defined by a few online dictionaries (notably none of the standard dictionaries showed up with a definition) as – effeminate, wimpy, and weak.
As George Carlin said, “context matters,” and one’s internalized definition does not always line up with modern usage. In this case Mascarin used it (from the Springwater video) to mean as the second and third definitions above, while the mayor took it to mean the first (which might be more an indication of age because, from experience, usage by the first definition is mostly heard from older people).
This is why understanding the meanings of words and phrases to use in public demands looking things up before they are used. Had Mascarin said Namby-Pamby, there likely would not be an issue because that term does mean weak, or silly, with no definitions found it refers to homosexuals, which is more in keeping with Mascarin’s other opinions of various responses to the legislation.
When everyone caught their breath Mascarin started the presentation and outlined the history of former legislation governing how municipalities conduct affairs, the rollout since 2022 when the new legislation was passed, and the source of the concept
The new powers affect 49.2% of Ontario municipalities. He recounted history of how the concept came to be going back to when Rob Ford was Mayor of Toronto and pulling a quote from the book, Ford Nation, by Rob and Doug Ford:
“If I ever get to the provincial level of politics, municipal affairs is the first thing I would want to change. I think mayors across the province deserve stronger powers. One person in charge, with veto power.”
Of course, that stemmed from Toronto council often outvoting the Fords. So the idea was born out of frustration by the Fords not getting their way. And, as mentioned here before, the idea was borrowed from American politics, of which Doug was familiar, having lived in Chicago while running the family business.
Mascarin stated the postulated purpose of creating the strong mayor concept in Ontario was to advance the province’s zeal to create more housing, fast, anywhere, and without regarding to local zoning.
Mascarin said there are four parts of legislation and regulation that need to be taken together to completely understand how the concept works from a legal and practical viewpoint.
“In order to understand the Strong Mayor Powers, you have to read part 6.1 together with the two regulations that go with it,” Mascarin said.
He said it hinges on stated provincial priorities and the powers are to be used to further those priorities.
“The prescribed priorities of this provincial government are, housing… and the construction and maintenance of infrastructure related to housing. The question I get asked is, if there’s a different provincial government, could there be different priorities? Absolutely.”
So they way the legislation is written does not prevent changing the purpose of the legislation, which could be used, or misused in coming years. Mascarin told who the number of municipalities given the power was expanded three times – with different reasoning each time, and as in Orillia’s case, had no foundation in housing creation.
The powers gained by mayors extend to three main provisions: administrative (ability to hire/fire senior level staff; provincial priorities (action on housing); and budget (now responsibility of mayors, not staff/council).
A good part of the presentation from this point on picked apart the deficiencies of the legislation along with the obligations of mayors and councils. Mascarin stated with the first provision of the legislation.
“The first group powers are the administrative powers. Let me get this out of the way, the intent of the entire Strong Mayor Powers is put in place to break the logjam, to give mayors greater power to get housing built. Let me be very clear, the first category of powers do not expressly or explicitly relate to Strong Mayor Powers. You won’t see in the first batch a direct reference to building homes.”
“The mayor cannot give direction unless it is somehow related to part 6.1. However when I tell you what the powers are, they are quite broad,”
How this sits with the first action taken by Mayor McIsaac, revoking the appointment of Trevor Lee by council as the city’s new chief administrative officer and instead appointing Amanpreet Singh Sidhu, who was deputy chief administrative officer/general manager of corporate services, as CAO, and appears to conflict with what Mascarin just said because no justification was given for the change, let alone linked to housing. Mascarin said the mayor can do so the way the legislation is written without stating cause, but it still appears to conflict with the stated purpose of the act.
Mascarin cleared up one aspect related to veto powers. Mayors can only veto by-laws related to housing (or any provincial priority). This raises a point that needs clarification, council appointed Lee as CAO by by-law. There was no reason given for rescinding the appointment. The new legislation does not allow mayors to veto old by-laws, only recently passed (within days) by council by-laws, and they have to state reasons why and presumably tie it to housing and the legislation, and not simply a by-law is being vetoed.
Outrageously, the legislation also prevents lawsuits, but Mascarin said there is other legislation that negates some aspects of the prohibition. Mascarin said, no part of the legislation has been tested in court yet, though there is a case from Peterborough in the courts now. Regardless, of whether vetoing relating to the CAO position can be challenged, it is likely this legislation will be tested somewhere and cost taxpayers for legal fees.
By-laws and resolutions relating to housing can still be challenged at the Ontario Land Tribunal.
Most troubling for many, on council, and citizens, is the abandonment of the concept of majority rules. If a mayor brings a by-law to council related to housing, councillors must vote on it and can pass with only more than one third of council in favour (in Orillia one third equals three councillors along with the mayor’s vote).
Interestingly, Strong Mayor Powers only apply to mayors who are elected. If for any reason anyone is acting in place of the mayor the powers do not transfer. If the position is vacant, council can no longer appoint someone to finish a term and must hold a by-election.
Council Question Highlights
Council then had an opportunity to ask questions. One was how does the legislation affect the City’s working groups in regard to a mayor’s power to appoint committee chairs; the legislation only refers to committees. Mascarin said working groups didn’t seem to fit the legislation.
Any direction by a mayor to staff has to be in writing, do all directions, verbal, need to be backed up in writing? Mascarin said there is no direction regarding if all directions, regardless of how routine, mundane or innocuous need to be in writing. He said the legislation says all direction, and it is unclear where lines are drawn on communication between a mayor and staff.
Hindsight is 20/20 and it would appear the broadness of the legislation puts mayors in a CYA situation, forcing them to put everything in writing since it is difficult to tell what communication between a mayor and staff could be challenged.
A question was raised relating to how Orillia came to gain the power as stated because of the ice storm emergency, which has little to do with the stated provincial priority in the act. Mascarin said the circumstance was surprising because there is no relationship to housing and the province does have an emergency act – which already gives extra powers to mayor when an emergency is declared. There is also nothing in the act about temporary powers as was originally granted to Orillia.
Could the question of whether a municipality has Strong Mayor Powers or not be put to referendum was also asked. Mascarin said a referendum cannot override legislation, so it would only be an indication of what a community thinks, but not be binding.
Another question about the limits of veto power was raised and Mascarin said it is limited. The legislation only allows a mayor to veto if a decision can be shown to relate to housing, or regarding the budget. Council can override a mayor’s veto, but it needs a two thirds majority. Council has no remedy regarding decisions about administration.
Things went off the rails a bit when it got to Mayor McIsaac’s turn.
“What if a City is tasked with replacing a key executive? What if few, if any, of the councillors had hired anyone before? The normal hiring process would include developing a job description, gathering resumes, interviewing candidates, checking references and testing candidates who would be the best fit for the City? Then you would naturally sit down together and evaluate who has the best credentials, experience, education, accomplishments, that sort of thing; who has the best presentation, those are the things you can measure. Then you can look at things you cannot measure; EQ, interpersonal skills, ability to deal with ambiguity, how people react under pressure, whether they are agile. You can then rank candidates and decide who will best serve the taxpayer.”
“But what if, and again this is purely hypothetical, the process was not followed? Or, another way, wilfully trampled on? What if councillors reject the ranking system as they are biased against a more qualified candidate? What if there is racial animus introduce by one council…”
At this point the audience which had been reacting to what they were hearing, interrupted the mayor.
“…order please… that slow the process so badly that it cannot be removed from the process and the City would be guaranteed a trip to the Human Rights Tribunal…”
The audience interrupted again. Then councillor Janet-Lynne Durnford called a point of order.
“Mayor McIsaac, I think it’s evident to all of us and the gallery, you are making allegations here.” Durnford said.
The mayor denied the point of order and then Councillor Jay Fallis asked, “Do we get to vote on that?”
The mayor continued, “Should the mayor protect the City and the taxpayer from substantial plans before a human rights tribunal, and risk a loss of reputation, or should they do nothing?” the mayor asked.
Mascarin did not address the hypothetical directly but said the mayor had fiduciary obligation to act in the best interest of the municipality.
The mayor tired to end the presentation portion of the meeting, but councillor David Campbell interrupted with, “Could I ask a hypothetical question?” which was rebuffed.
The audience wasn’t buying what just happened, but the meeting moved on to the public forum. That set the mood for when the audience heard speakers whose opinion they agreed with (Strong Mayor Powers aren’t need and come with problems) by clapping. After a few of those rounds of applause, the mayor cautioned there were to be no outbursts and he would clear the room if they continued.
A dozen people spoke during the forum; two participants were online, who agreed with the new powers, and a couple from the audience also supported the new power, but the rest spoke against the powers.
When the second in line finished his comments, councillor Campbell announced that the livestream had failed. A recess was called for staff to get the meeting back online and continued.
The public comments can be watched here
The full presentation and questions raised by council can be viewed here.
(Photos by Swartz – SUNonline/Orillia; Images Supplied) Main: The audience at Thursday evening’s Orillia council Strong Mayor Powers special meeting.
