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ELIAS HAZINEH v. HAZEL McCALLION SUMMARY OF A DECISION OF MR. JUSTICE JOHN R. SPROAT (released June 14, 2013)

June 17th, 2013  

What follows is video of Mississauga Mayor Hazel McCallion’s June 14, 2013 Conflict of Interest press conference and then Justice John Sproat’s “Hazineh vs McCallion” decision.

Hazel McCallion Conflict-of-interest case dismissed. Her City Hall press conference Jun 14 2013 (24:56 min)

 

The Decision released June 14, 2013

 Justice John R. Sproat’s “Hazineh vs McCallion” decision scanned from the Hazineh v McCallion – Summary of Decision_June 14, 2013 (PDF) file. We’ve done our best to ensure that our scan matches Justice Sproat’s original text. Any errors are ours and we’d appreciate being advised as well.

ELIAS HAZINEH v. HAZEL McCALLION

SUMMARY OF A DECISION OF MR. JUSTICE JOHN R. SPROAT

(released June 14, 2013)

INTRODUCTION

[1] This is an application brought by Elias Hazineh (“Mr. Hazineh”) seeking to
have Hazel McCallion (“Mayor McCallion”), the Mayor of the City of Mississauga
(“the City”), removed from office for violating the Municipal Conflict of Interest Act
(“the MCIA”).

[2] in brief, Mr. Hazineh alleges that:

(a) Mayor McCallion’s son Peter McCallion (“Peter”) incorporated and
was an owner of World Class Developments Inc. (“WCD”). WCD
agreed to purchase land for the purpose of constructing a hotel,
conference centre and condominium towers. (The completion of this
transaction was subject to WCD attracting a four star hotel and
obtaining all required planning approvals.)

(b) Mayor McCallion knew Peter had a financial interest in WCD. As
such, the MCIA deems her to have the same financial interest as
Peter for conflict purposes.

(c) Mayor McCallion cast a number of votes at Peel Regional Council
(“Regional Council”) in September-October, 2007 (“the Votes”),
related to increased development charges. As enacted, the by-law
contained provisions (“the Transitional Provisions”) by which
developers who filed a complete site plan application by October 7,

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2007; a complete building permit application by February 1, 2008;
and who obtained a building permit by May 1, 2008, continued to be
eligible to pay the lower rate.

(d) WCD was eligible to qualify under the Transitional Provisions. As
such WCD and Mayor McCallion had a financial interest in the
Votes.

(e) It was not until reading an October 11, 2011 article by municipal
lawyer Clay Connor that Mr. Hazineh learned of Mayor McCallion’s
conflict of interest at Regional Council. As required by the MCIA, he
then commenced a court application within six weeks of learning of
the conflict.

[3]   The issues are as follows:

(a) What was Peter’s interest in WCD? What did Mayor McCallion know
about Peter’s interest in WCD?

(b) Had WCD filed a complete site plan application prior to October 7,
2007, such that it was eligible to qualify under the Transitional
Provisions?

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(c) If WCD was eligible, and so had a financial interest in the
Transitional Provisions, do any of the following MCIA exemptions
apply?:

(i) Was Mayor McCallion’s deemed financial interest an interest
in common with electors generally? or

(ii) Was Mayor McCallion’s deemed financial interest remote and
insignificant such that it cannot reasonably be regarded as
likely to have influenced her?

(d) If Mayor McCallion contravened the MCIA, was the contravention
committed through inadvertence or an error in judgment such that
she should not be removed from office?


DID MAYOR MCCALLION HAVE A DEEMED FINANCIAL INTEREST IN

WCD?

[4] Section 3 of the MCIA provides that if the child of a member has a financial
interest, known to the member, the member is deemed to have the same
financial interest as the child.

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[5] The evidence is overwhelming that Peter was an owner of WCD. For
example, he caused WCD to be incorporated, arranged for a $750,000 loan to
pay a deposit and decided who would be the shareholders and officers.

[6] Mayor McCallion’s evidence was that, at the time of the Votes, she
 understood that Peter’s only interest in WCD was as a real estate agent.

[7] Having regard to the following:

(a) that Mayor McCallion had a close relationship with Peter and a long-
standing interest in the development of a hotel and conference
centre;

(b) that in January 2007 she witnessed documents signed by Peter and
Couprie which indicated clearly that Peter was an owner of WCD;
and

(c) that, within one month after the Votes, she was engaged in the
internal affairs of WCD to the extent that documents to do with the
shareholdings of Cook and DeCicco in WCD were faxed to her home
and DeCicco solicited her advice and assistance to resolve issues
he had with Cook.

 

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I find as a fact that, as of the Votes, Mayor McCallion was aware that Peter was
an owner of WCD. Section 3 of the MCIA, therefore, deems Mayor McCallion to
have the same financial interest as Peter.

COULD WCD QUALIFY UNDER THE TRANSITIONAL PROVISIONS?

[8] To qualify under the Transitional Provisions “an application for site plan
approval that is complete” had to have been filed by October 7, 2007.

[9] WCD had only filed a Master Site Plan which is conceptual in nature and
identifies the location of buildings, access points and the general attributes of the
site.

[10] A City by-law required that a site plan application shall not be processed
until the application fee was paid. In the case of WCD the application fee for the
entire project was initially estimated to be $500,000. WCD paid only 10 per cent
of this amount on the filing of the Master Site Plan.

[11] The Master Site Plan application left blank parts of the form intended to
 list the “general requirements” of the plan and the “building elevations”.

[12] I, therefore, conclude that the Master Site Plan application was not a “site
plan application that is complete” within the meaning of the Transitional
Provisions. WCD could not, therefore, qualify under the Transitional Provisions.


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As such, WCD had no financial interest in the development charges by-law
adopted by the Region. On that basis alone Mr. Hazineh’s application must be
dismissed.

WAS MAYOR MCCALLION’S DEEMED FINANCIAL INTEREST AN INTEREST
IN COMMON WITH ELECTORS GENERALLY?

[13] Section 4(j) of the MCIA provides an exception to the conflict of interest
prohibition if the financial interest of the member is one “which is an interest in
common with electors generally”.

[14] WCD stood to save several million dollars in development charges if even
phase one of its proposed development qualified under the Transitional
Provisions.

[15] Under s. 4(j) of the MCIA, it is necessary to first identify the financial
 interest of the member. In this case, the deemed financial interest of Mayor
McCallion was that of an owner of WCD. Depending on the wording of the
transitional by-law WCD could save a substantial amount of money. The proper
question then is whether this financial interest, namely money riding on the
wording of the transitional by-law, is an interest “in common with electors
generally”. To ask the question is to answer it. it is obviously not an interest in


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common. Peter and WCD had a financial interest, and Mayor McCallion had a
deemed financial interest, quite different from electors generally.

WAS MAYOR MCCALLlON’S DEEMED FINANCIAL INTEREST REMOTE AND
INSIGNIFICANT?

[16] Section 4(j) of the MCIA provides an exception if the interest of the
member is so remote or insignificant that it cannot reasonably be regarded as
likely to affect the member.

[17] The parties agree that l should apply the objective test formulated by
Mackenzie J. in Whiteley v. Schnurr, [1999] O.J. No. 2575(Gen. Div.) as follows:

10. […] Would a reasonable elector, being apprised of all the
circumstances, be more likely than not to regard the interest of the
councillor as likely to influence that councillor’s action and decision
on the question? ln answering the question set out in such test,
such elector might consider whether there was any present or
prospective financial benefit or detriment, financial or othen/vise that
could result depending on the manner in which the member
disposed of the subject matter before him or her.

[18] The reasonable elector would focus on the plans and preparedness of
WCD as of the Votes, and its financial ability at that time to implement its plans.

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[19] The parties agreed that, applying the test from Whitely, a reasonable
elector apprised of all the circumstances would take into account that as of the
Votes:

(a) the intention of WCD was to not apply for a building permit until the
spring of 2008, which would not meet the second requirement of the
Transitional Provisions.

(b) the Master Site Plan was not sufficiently detailed to allow building
permits to issue.

(c) WCD did not have in place a hotel chain or a major financial
investor.

(d) WCD itself lacked the resources to pay the site plan application fee
and proceed to the building permit stage.

[20] A reasonable elector would also consider that Mayor McCallion had
demonstrated greater concern for the public interest than Peter‘s interest by
suggesting to OMERS, the owner of the land, that the agreement of purchase
and sale require that the hotel be built first. This provision caused, or contributed
to causing, the project to not proceed.

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[21] in my opinion, a reasonable elector, apprised of all of the circumstances
as of the Votes, would not regard the deemed financial interest of Mayor
McCallion as likely to have influenced her vote. As of the Votes, the chance that
WCD would qualify under the Transitional Provisions was miniscule. A
reasonable elector would have concluded there was no likelihood that Mayor
McCallion’s deemed financial interest would influence her vote.

WAS ANY CONTRAVENTION DUE TO INADVERTENCE OR BY REASON OF
AN ERROR IN JUDGMENT?

[22] The MCIA, s. 10(2) provides that if a contravention was committed
through inadvertence or by reason of an error in judgment the member is not
subject to having his or her seat vacated.

[23] If, contrary to my conclusion, Mayor McCallion contravened the MCIA,
her participation in the Votes cannot be characterized as an error in judgement or
inadvertence.

[24] Mayor McCallion participated in the Votes intentionally having formed the
opinion that a vote on development charges cannot give rise to a conflict of
interest. Mayor McCallion went so far as to testify that she would not have
declared a conflict of interest even if she understood that WCD could save $11
million as a result of the Transitional Provisions. This understanding of her legal

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obligations is contrary to common sense. Mayor McCallion was not able to refer
to any municipal law educational seminar or publication prior to the Votes that
supported this interpretation.

[25] Further, Mayor McCallion was wilfully blind to the status of the WCD
development. For all she knew the Transitional Provisions could have saved
WCD millions of dollars on the initial phase of the project. Wilful blindness
precludes reliance upon the defence of error in judgment or inadvertence.

DID MR. HAZINEH COMMENCE THE APPLICATION IN TIME?

[26] Section 9 of the MCIA provides that an elector has six weeks to
commence a court application after it comes to the elector’s knowledge that a
member may have contravened the MCIA.

[27] Mr. Hazineh stated in his affidavit filed in support of his application that he
first learned of Mayor McCallion’s 2007 conflict of interest, related to a
development charge by-law at Regional Council, from an October 11, 2011
article. When cross-examined out of court, however, he stated that he had
probably read a July 17, 2010 article in the National Post which reported the
same allegations.

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[28] Mr. Hazineh testified in court and was directed to this discrepancy. He
testified that on reflection he was in error in stating he had read the National Post
article in 2010. He explained that he did not read the National Post on principle
because of its editorial stance on the Middle East.

[29] lf it was true that Mr. Hazineh never read the National Post it is only
logical he would have stated that when first asked about the National Post article
at his cross-examination. l conclude Mr. Hazineh’s evidence that he never read
the National Post on principle was an after the fact rationalization to explain the
discrepancy in his evidence. l find it more probable that Mr. Hazineh’s evidence
when cross-examined on his affidavit was true than his evidence in court. By the
time he testified in court, he appreciated that his earlier evidence might doom his
application to failure. As such, I find as a fact that Mr. Hazineh read the National
Post article in July 2010.

[30] The National Post article contained essentially the same information as
the October 11, 2011 article. As such, the fact that Mayor McCallion may have
contravened the MCIA came to Mr. Hazineh’s knowledge in July 2010. He
commenced this application long after the six week period prescribed by s. 9 of
the MCIA. Mr. Hazineh’s application must, therefore, also be dismissed on this
ground.

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CONCLUSION

[31] The application is, therefore dismissed.

Hazel McCallion's Councillors, Pat Mullin, Ron Starr, Katie Mahoney and Jim Tovey react to the Mayor's lawyer declaring, "Mayor McCallion won this case and she won it big time."Hazel McCallion’s Councillors, Pat Mullin, Ron Starr, Katie Mahoney and Jim Tovey react to the Mayor’s lawyer
declaring, “Mayor McCallion won this case and she won it big time.”

ADDITIONAL RESOURCES

Justice Sproat’s Decision


MISSISSAUGAWATCH court notes

Hazel McCallion Conflict of Interest Press Conference. The Press: Rick Drennan, San Grewal, Louise Rosella

Hazel McCallion Conflict of Interest Press Conference. The Press: Rick Drennan, San Grewal, Louise Rosella

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