Douglas W. Judson
Has the Town of Fort Frances Been Illegally Paying for the Mayor’s Lawyers? An Investigation
Municipal records reveal significant unauthorized expenditures and provision of legal representation
A freedom of information request has revealed that the administration of the Town of Fort Frances has been unlawfully paying the Mayor’s bills – spending almost $40,000 on lawyers to defend the Mayor personally – without authorization from council to do so.
The request, submitted under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) on June 29, 2022, sought the total amount paid by the municipality to legal counsel representing Mayor June Caul, the municipal accounting ledger entries for such transactions, and a copy of the resolution or by-law authorizing the use of taxpayer funds for the Mayor’s legal expenses.
In a response letter dated July 29, 2022, the municipal clerk provided copies of records confirming that the municipality spent $38,324.56 to retain Wishart Law Firm LLP, based in Sault Ste. Marie, to represent the Mayor.
In answer to the portion of the request seeking the source of the administration's legal authority for these expenditures, the clerk wrote, “no responsive records were located”. The clerk marked the freedom of information response as "confidential", despite the fact that it was, by definition, producing public records.
Municipality's lawyers represented Mayor in integrity commissioner inquiry
While it is known that Wishart represented the Mayor in at least one court proceeding, the full scope of their retainer is unspecified. For instance, in reply to follow up inquiries in August and September 2022, Chief Administrative Officer Faisal Anwar was unclear as to whether and to what extent the administration provided the Mayor with the services of the municipality’s lawyers to defend her most recent integrity commissioner complaint. (To be clear, no member of council was the complainant in that inquiry.)
The report resulting from that complaint was received by council during a meeting on August 18, 2022, in which Integrity Commissioner Paul Heayn substantiated numerous breaches of the Code of Conduct, the municipality’s procedural by-law, and the Municipal Conflict of Interest Act. Council adopted a resolution calling for the Mayor to apologize to municipal staff and contractors impacted by her actions. To-date, council has received no indication that any such apology has been made.
The Mayor’s use of the Town’s lawyers came to light during the August 18 meeting, when Mr. Heayn informed council that the Mayor was represented in his inquiry by Wishart. No such services or indemnities for the Mayor were ever authorized by council.
Code of Conduct inquiries only allow for expense reimbursement
While a member of council who is under investigation by the integrity commissioner may choose to have legal counsel, there is no municipal policy or by-law entitling the member to taxpayer-funded lawyers at the outset of the process. Moreover, the fact of an inquiry process is itself confidential until the commissioner releases his report to council, so there is no means of requesting taxpayer-funded representation without violating the rules under the Code of Conduct or the Municipal Act, 2001.
The Code of Conduct only contemplates expense reimbursement at the end of the process – and only if the member is exonerated. It does not authorize the direct payment of expenses from the public purse. As for whether the member breached the Code of Conduct, courts have stated on numerous occasions that municipal integrity commissioners are only investigators who can make recommendations to council. Council then decides whether or not to endorse the commissioner’s report. The court has confirmed that it is only council’s decision that can bind the member.
Questions of conflict of interest raised
But setting aside whether or not the municipality lawfully paid the Mayor's legal fees in a matter before the integrity commissioner, there remains a question as to conflict of interest. The Municipal Act, 2001 requires that the integrity commissioner exercise his functions independent of the municipal administration or council. Lawyers who act for the municipality or who have advised council or administration would presumptively be in a legal conflict and unable to assist a party who is the subject of an inquiry by the commissioner. At a basic level, the use of the municipal solicitor by a member of council in an integrity commissioner inquiry would appear to compromise the integrity, independence, and procedural fairness of the inquiry.
It is unclear, in this case, how Wishart has been able to advise the administration, council, and the integrity commissioner (including on code of conduct matters) and then represent a party in an inquiry by the integrity commissioner in which council is the decision-making authority. It is also noted that Wishart’s logo appears on the front of the Fort Frances Code of Conduct, suggesting that they were retained to write this by-law at some point in time. At no time has council waived these conflicts nor authorized any member of staff to waive conflicts on its behalf.
What did $38K pay for?
While the CAO claims that no funds were spent on the Mayor's representation in the integrity commissioner inquiry, the answers provided have been vague. Most obviously, it is entirely unclear how $38,000 in legal expenses was charged to the municipality unless the Mayor was given the benefit of taxpayer-funded legal counsel in proceedings before the integrity commissioner.
For instance, the court application I commenced against her in fall 2021 resolved without a hearing. The only material prepared by Wishart lawyers in that proceeding was a seven-page, double-spaced affidavit. While that retainer was also made without legal authority, there is no way her representation should have cost anywhere near that much money on its own.
Unfair treatment of council members by administration
Since December 2021, the Mayor has been found by the integrity commissioner and by her own public admissions to have breached over two dozen sections of the Code of Conduct, the staff-council relations policy, the procedural by-law, the workplace harassment policy, the Municipal Conflict of Interest Act, and the Municipal Act, 2001. It now appears she has had municipally-facilitated legal representation for these proceedings. In contrast, no other member has been found to have committed any such violations and council has refused to provide expense reimbursement to any other member – including those who have successfully defended a complaint, contrary to its own Code of Conduct by-law.
Despite numerous follow-ups since August 22, 2022, the CAO has declined to provide any further information about his authorization to pay these expenses, the nature of the fees paid, or the basis for the Town’s lawyers to represent the Mayor in an integrity commissioner inquiry.
If the administration directed the municipality's lawyers to assist the Mayor in any proceeding without council authorization, doing so was likely a breach of the Town's council-staff relations policy, which requires that administration treat all members of council equally. The CAO has not authorized legal representation to any other member who has been subject to a complaint.
Transparency is a growing concern at the Town of Fort Frances. The fact that a I, as a member of council, have had to use my own lawyer and pay fees out of pocket under MFIPPA to request answers to basic questions from the administration should be alarming to members of the public, who elect us to hold the municipal government accountable. These revelations should also trouble the incoming council as they begin the work of the staff's so-called "governance review".
 The commissioner confirmed publicly on August 18, 2022 that this complaint was not brought by anyone on council nor did the commissioner speak to any councillors about this complaint as part of his investigation. In fact, none of the integrity commissioner's reports about the Mayor have ever named a member of council or staff as the complainant.
 In fact, at the time this inquiry by Mr. Heayn was commenced, the municipality did not have an indemnification by-law in place, though the indemnification by-law that is now in place does not apply to integrity commissioner matters. The provision for expense reimbursement is contained in the Code of Conduct by-law.
 In any event, the requirement of the commissioner's independence, as set out in the Municipal Act, 2001, would suggest that waiver is not possible in this circumstance.