labour and employment lawyers February 1 l, 2020 By Electronic Mail Ottawa City Council c/o David G. White, City Solicitor City of Ottawa (City Hall) 10 Laurier Ave. West Ottawa ON Robert Marleau, C.M. Of?ce of the Integrity Commissioner 110 Laurier Avenue West Ottawa, ON 1J1 Dear City Councillors and Integrity Commissioner: Re: Councillor Rick Chiarelli I con?rm that we are the solicitors for Councillor Rick Chiarelli, and that we have been providing advice and representation to Councillor Chiarelli since late July, 2019, in connection with various complaints and allegations that are currently being formally investigated by the Integrity Commissioner, and independent workplace investigator Audrey Lizotte. We are writing, at this time, to raise a preliminary procedural issue with respect to all of current complaints and related allegations, and to the ongoing investigative processes related to those complaints and allegations. In simple terms, it is our client?s position that, over the last four months or thereabouts, there has been an overwhelming demonstration of patent and palpable bias, by Mayor Jim Watson and other members of Ottawa City Council (?Council?), which has completely undermined our client?s legal rights, the integrity of the City?s policies and procedures, and the con?dence of most right-minded members of the public. With this letter, we are formally requesting that all current proceedings and related investigations be stayed and/or terminated, on the basis of actual bias and/or Councillor Chiarelli?s reasonable apprehension of bias. We have previously con?rmed our client?s intention to move forward with a Judicial Review Application before the Divisional Court of the Ontario Superior Court of Justice. If necessary, Councillor Chiarelli remains prepared to move forward with such formal legal action. 228 Hunt Club Rd. Suite #204 Ottawa, ON K1V1C1 613-751-4459 613-751-4471 sevignydupuis.com Before doing so, however, our client wants to exhaust any and all internal mechanisms, related to the City?s internal policies and procedures, so that it cannot be later argued that ajudicial review application was somehow premature. Council is the Ultimate Adjudicative Body Please note that we are directing this motion to both Council and the Integrity Commissioner (?the While much focus has been placed on the investigative mandate, and his related public pro?le, it is apparent that both the IC and Council play important roles, as statutory decision makers, in relation to the formal adjudication and/or determination of the complaints that have been ?led against Councillor Chiarelli. In fact, the provisions of By-law 2018-400 Code of Conduct for Members of Council (?the Code of Conduct?) clearly demonstrates that Council is the ultimate statutory decision maker in relation to the subject allegations and complaints. While the IC has certain statutory investigative powers, his statutory decision-making power extends only to reporting to Council, with an outline of his investigative ?ndings, and any recommended corrective action. The interplay between the statutory powers, and a municipal council?s statutory decision- making authority, was summarized by the Ontario Divisional Court in Di Biase v. City of Vaughan; Integrity Commissioner of the City of Vaughan, 2016 ONSC 5620 (CanLll): [18] Following an investigation, the Integrity Commissioner ?reports to the his or her opinion about whether a member of Council has contravened the applicable code of (MunicipalAct, 5. [19] In a report on conduct following an investigation the Commissioner "may disclose in the report such matters as in the Commissioner?s opinion are necessary for the purposes of the report? (Municipal Act, s.223.6 [20] Section 223.4(5) of the Municipal Act provides that if the Integrity Commissioner reports to the municipality that in his or her opinion the member has contravened the Code of Conduct, then the council of the municipality, if it accepts the report, may impose either of the following penalties: I a reprimand; or I a suspension of the remuneration paid to the member in respect of his or her services as a member of council a period of up to 90 days. [21] The municipality must make public the Integrity Commissioner?s reports (Municipal Act, 5. Again, it is submitted that this passage demonstrates that Council is the ultimate adjudicator, and ultimate statutory decision maker, in relation to the Code of Conduct complaints and allegations that have been raised against Councillor Chiarelli. Statutory Decision Makers Cannot Be Biased The common law duty of fairness has been described as follows:l ?Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. The common law duty of fairness obliges a tribunal hearing a matter to perform its functions free from bias, or reasonable apprehension of bias. In principle, the standard is objective. The question is not whether there is evidence of actual bias but whether a reasonable person would perceive bias: ?the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.? (author quotes from the Supreme Court of Canada decision in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at 394-395 Mayor Watson and Council Have Demonstrated Patent and Palpable Bias It is submitted that there has been a sustained and unsettling demonstration of bias, pre- determination, close-mindedness and/or political opportunism, by Mayor Watson and other members of Council, in relation to the Code of Conduct complaints, and related allegations, raised against Councillor Chiarelli, that would cause most reasonable persons to perceive bias, and conclude, on an objective basis, that Council cannot possibly adjudicate any of these allegations AND IT IS IMPORTANT TO REMEMBER THAT THEY REMAIN NOTHING MORE THAN UNPROVEN ALLEGATIONS AT THIS POINT without bias or prejudice. The demonstrations of patent and palpable bias, by Mayor Watson and members of Council, in relation to the complaints and related allegations raised against Councillor Chiarelli, are clearly a matter of public record across the City of Ottawa over the last four or ?ve months: Jim Watson0 @JimWAtsonOttawa Please see and my statement regarding Councillor Chiarelli. ?To say that we are disturbed to hear the latest allegations regarding Councillor Chiarelli would be a gross understatement. There are really no words to describe our disappointment. Our ?rst thoughts are for the brave women who have come forward to share their experiences. The matter is before the City's Integrity Commissioner; however, we personally hope that these women will also share their experiences with the Integrity Commissioner. so that they can be properly and independentiy investigated. Crawley, Alistair. ?Notes on Reasonable Apprehension of Bias?. Ottawa 3 Ottawa councillors call for Chiarelli to resign I . 1 I 1 ..--, i I 0 1 4, ?lawn; X. McKenney, Lelper, Menard call women's accounts 'degrading' Trevor Pritchard - CBC News Posted: Sep 26. 2019 4:15 PM ET Last Updated: September 25, 2019 CANADA Ottawa city council defers Coun. Rick Chiarelli?s request for leave BY CHRISTOPHER WAN - GLOBAL NEWS Posted September 25, 2019 8:19 pm Updated September 25. 2019 9:37 pm Ottawa 0 0' Chlarelh 5 leave request demed is?) {in} College ward councillor must attend council by end of November or his seat will be declared vacant Joangeghlanello - CBC News - Posted: Oct 23. 2019 11:01 AM El? Last Updated: October 24. 2019 Ottawa . CBC INVESTIGATES Chiarelli affair has cast 'shadow' over city, mayor says cm, 1. x? r" r. H?mlia?mm; \r Council to decide on leave request as 13th woman details new allegations loanne ?5999?? - CBC News - Posted: Oct 23. 2019 4:00 AM ET Last Updated: October 23. 2019 HOME LOCAL NEWS Ottawa City Councillorsjoin protest of Rick Chiarelli at City Hall The College ward representative made his ?rst appearance at City Hall in more than a month, as 2020 budget items were again up for debate. Dec 11, 201912247 PM By: MikeViasveld Councillors taking a stand on Chiarelli, the only way they can Quill-w- CBC Beatriz-$132019 taking a stand on Claiatefli, the only way they can it was a protest unprecedented at Ottawa city hall. It didn?t come from activists they were there in the council chamber. too but from city councillors who stood leaning over their chair backs. their laptops perched atop overturned recycling bins as they attended to Wednesday?s hefty council agenda. which included approving a multi?billion?doller budget. They stayed standing, some for hours, because their colleague. Coun. Rick Chiarelii. was at the table, too. i . . i I 303.13% . enemies hm SPORTS LIFE OBITS CLASSIFIEDS . CAREERS ?He sort of snuck in. snuck out. didn?t say anything. didn't explain exactly what he's been up to. And we're left'with this awkward and embarrassing situation that has become such a distraction almost every week around here." Watson said. ?i think you saw by the reaction that most members of council did not want to be seen near him. quite frankly. myself included.? It's not clear whether or not Chiarelli is back at work. the mayor Mid. and that's frustrating for colleagues. staff and constituents. He urged the councillor to publicly explain himself. Chiareili?s Wednesday statement said he continue to address his medical concerns while doing "as much as he can" to fulfill the expectations of his job. with an to eventually returning full- time. in the meantime. Chiarelli said his office staff will continue to serve College ward and stay in contact with him. The mayor was asked Wednesday if he was frustrated he couldn't do more to intervene in the whole situation. Watson explained that it would be "undemocratic" to give a city council the authority to dismiss an elected member. But. he added. "i think there probably should be some provision within the municipal act that would give the minister the authority to look at a Situation and see that it continues to be untenable and something has to be done.? "Because at the end of the day. Mr. Chiarelli's constituents suffer. They had no input. for instance. in the budget process. and there are Issues that are bubbling up in his ward.? Menard said that he and tellow councillors Catharine McKenney and Jeff Leiper have been discussing their own letter to the province to request a change to rules that currently provide little recourse for those who want to hold Chiarelli accountable. Theresa Kavanagh City Councillor Bay Ward @tm_kava nagh My statement concerning the protest at Council. madeornniohism?lul Colonic! mm lame - Wm i hmemeinummando?w 4:11 PM Dec 11, 2019 - Twittei Web App HOME LOCAL NEWS '00 the honourable thing:' Mayor Watson calls on Chiarelli to resign Speaking on Ottawa Today with Mark Sutcliffe on 1310 NEWS. Thursday morning, Mayor Jim Watson called on Chiarelli to resign. Dec 121 By:]a50n White More Than Reasonable Apprehension of Bias Clear Indications of Bias It is respectfully submitted that. at this point, Councillor Chiarelli can have no confidence in Council?s ability to objectively decide on any matter that is presently before the Council members have de?antly stood in protest of Councillor Chiarelli. Mayor Watson has openly called for Councillor Chiarelli?s resignation. Other members of Council have done the same. Councillor Kavanagh has publicly con?rmed her discomfort with the public protest by her colleagues. Mayor Watson has spoken publicly about his ?disgust?, and not wanting ?to be seen near him?. Other councillors have urged the Province to hold Councillor Chiarelli ?accountable?. To be clear. these have been the actions and statements of the ?statutory decision makers". These have been the actions and statements of the ultimate ?adj udicators?. How can these actions and statements possibly be reconciled with the ?presumption ofilmocence?? How can these actions and statements possibly be reconciled with the obligation to be fair, impartial and objective. It is submitted that there can be no such reconciliation. It is submitted that the Mayor. and members of Council. have irreparably poisoned this process with their repeated demonstrations ofbias. There are a number of other issues, separate and apart from the ?public recor of biased statements and actions, that also support the request that these matters be stayed. Refusal To Approve Medical Leave It is submitted that members of Council have clearly allowed considerations related to the IC complaints to taint their consideration of Councillor Chiarelli?s past requests for approved medical leave. It is submitted that Council has clearly used the ?medical leave? request process to try to force Councillor Chiarelli out of of?ce. It is submitted that Council has attempted to utilize this process to impose the harshest sentence imaginable on Councillor Chiarelli the involuntary loss of his elected position without affording him due process, or the opportunity to clear his good name. It is a matter of public record that Council deferred Councillor Chiarelli?s request for approved medical leave at its meeting of September 25, 2019, and ultimately refused the request at its meeting of October 23, 2020. It is absolutely unprecedented for Council to second-guess, ignore or reject a councillor?s medical notes in these circumstances. We con?rm, for the record, that Councillor Chiarelli submitted three (3) separate medical notes from his family physician, in support of his request for approved leave (notes dated September 24, October 8 October 22). As early as September Councillor Chiarelli?s physician con?rmed an August 14th trip to the Emergency Room, the prescribing of medication, and the referral to a cardiology specialist. It is also unprecedented for Council to not approve this type of leave request, when supported by uncontradicted medical evidence. In fact, two other similar requests were approved by Councll, for Councillor Diane Deans and Councillor Keith Egli, without hesitation, objection or scrutiny, on September 25, 2019, the very same day that Councillor Chiarelli?s similar request was deferred. It is submitted that Council?s unjusti?able and unreasonable approach to Councillor Chiarelli?s request for approved medical leave, and Council?s ultimate refusal to grant that request on October 23, 2019, also give rise to a reasonable apprehension of bias. The fact that Councillor Chiarelli ultimately required open-heart, multiple by-pass surgery on December 13, 2019 is ?proof positive? of the completely unjusti?able actions of Council, in refusing approved leave to their clearly sick colleague. Concurrent Investigative Process We would also con?rm that workplace investigator, Audrey Lizotte, has been formally engaged by the City, on a concurrent basis, to investigate allegations of improper conduct raised against Councillor Chiarelli. Our client was advised of this investigation on August 16, 2019, but he was only provided with meaningful particulars of the allegations on January 21, 2020 -- while he was convalescing from his open-heart surgery. It is now apparent that there is considerable duplication and overlap beween Ms. Lizotte?s investigative mandate and the investigative mandate. It is submitted that this is entirely vexatious and inappropriate, and that it is indicative of a concerted attempt, by Council or certain members of Council, to overwhelm and/or ?out-resource? Councillor Chiarelli at a time when he is ?ghting for his life. Refusal To Reimburse Legal Fees It seems apparent that Council, or certain members of Council, have also actively interfered with Councillor Chiarelli?s attempts to claim legitimate reimbursement of legal expenses related to the IC investigation. The Code of Conduct speci?cally provides that Councillor Chiarelli is entitled to charge legal fees, related to the ongoing IC investigation, to his of?ce budget: 2. If necessary, after reviewing the submitted materials. the Integrity Commissioner may speak to anyone. access and examine any other documents or electronic materials and may enter any City work location relevant to the complaint for the purpose of investigation and potential resolution. a. The Member who is the subject of the investigation may consult with a lawyer and charge this to their of?ce budget. If the complaint is determined to have merit, the integrity Commissioner may require the Member to reimburse these expenses to the City. If the subject of the Investigation of a citizen member of the Transit Commission, the costs may be expensed to the Council administration budget through the Clerk's office. We con?rm that Councillor Chiarelli submitted a request for legal expense reimbursement sixteen {16) weeks ago, on October 22, 2019. To date, the City has completely failed and/or refused to process that request. On November 21, 2019, City Solicitor, David White, sent the following letter in respect of the request for reimbursement. 10 (Ottawa Innovative Client Sen/imm Services novetours pouri'a clientele W621 . 2019 Mr. Sevigny. The City Clerk's Office Is in receipt of a request for payment of a Statement of Account dated October 22. 2019. rendered by your firm in relation to 'EmpioymentAdvice", in the amount oi? $1 1 593.80. The request Is that the payment be attributed to the Constituency Services Budget for Councillor Chiarelli. In accordance with the City of Ottawa?s Council Expense Policy. the Constituency Services Budget is made available to Members of Council in order to provide them with the funds necessaiyto carry out their statutory duties as elected officials. It is not available In respect of matters that are personal to councillors. In their private capacities. That said. In accordance with the Complaint Protocol adopted by City Council as part of the Code of Conduct forMemOers or Councl?f, a Member who is the subject of an investigation bythe Integrity Commissioner'may consult with a lawyer and charge this to their office budgetfl have attached copies of the Poilcy. as well as the Code ofCona?uci. for ease of reference. In order to help me determine whether this provision might apply to all or part of the legal expenses submitted. can you please confirm - on a confidential basis that your client is the subject of an investigation under the City's Code ofConduct forMembers of Counciimd. if so. the date on which he received notice of same? Thank YOU. In advance. foryour assistance. DAVID C. MITE City Solicitor Avocat Legal ServicesI Servicesjurldiques Innovative Client Services Dem Services novateurs pour la clientele i' two! 011m We a Crux-n .hmuc EMIkau mm. B'rm Scum um?. i HO Lama Mm Wm rm ;0um {.10 am: Law 021 gmnomum3z19 :11 mt! 3212121932- 3 'Puciolz)569~1383 6120.180 24Nm210? Newman T?hwpixwf 133561383 3 1 .. E-M Dvuaimeomn It is very dif?cult to accept this letter as anything more than a further act of obstruction, that raises serious questions about the direction that City staff is receiving, in relation to the IC investigation involving Councillor Chiarelli. To be clear, it is respectfully beyond belief that the City Solicitor would require con?rmation, in late November, 2019, that Councillor Chiarelli was the subject of an investigation under the City?s Code of Conduct. In addition to having been the source of widespread press coverage since early September, it is a matter of record that the City Solicitor had been formally advising Council on matters related to the IC investigation at least a month earlier. 11 CBC Thirteen women have now told CBC about inappropriate behaviour and comments by Chiarelli in his of?ce and during job interviews. Chiarelli has denied all allegations. Before the vote. city solicitor David White warned councillors not to take the allegations against Chiarelli into amount when making their decision about the councillors leave. But that didn't stop Mayor Jim Watson from speaking his mind after the council meeting. "There?s a lot of important issues we're dealing with and Coun. Chiarelli's ward does not have a voice. We're trying our best to do so through two members of council ?lling in, but asyou saw today,thene?s precious little support for Coun. Chiarelli," Watson said Wednesday. In any event, a prompt response was sent to Mr. White: sewgny labour and employment lawyers Novembu?zs.20l9 i saw, Electronic Mail David a. White City Solicitor City ofOttawu (City mm no Lauder Ave. West Ottawa ON mp :11 Dear Mr. White: Re: Councillor Rick Chiral-d9 Thank you 20l9,relatzdto Councilloraaiarclii?smqucsl that this l'um?v mutt dated October 22. 2M9 be paid out ol? our client?s Constituency Services Budget. I con?rm Chlemlli is the subject ohm invenlption under the City's Code nl'Cunduct for Mcmbeni of Council. Chime!" was lint noti?ed by the City Clerk's ut?l'tee on August l6. 20I9 that he was the ethics: of some type of formal investigation. Our client was advised. at that time. that the Juris?cticnlformn issue was still being sorted out. By letter dated August 20. 2019. we requested Ml mniculm: from Tyler Cox, imludins the details of any City policy than had been triggered by the complaint and/ot- investigation On September 12. 20I9. the CBC reported that fomzal complaint had been tiled agninn Councillor China!" on July 2. 2019. This ?rm was first retained by Cmuieillor Clilaelli on July 22. 20l9. All uftho advice that we have investigation under the City's Code of Conduct {or of Council. Your: very mil 0.311100ch 1 an: ammonium mum mum lC?l sum-7614450 I sis-7:14:11 .1 Having regard to the clear wording of the Code of Conduct, the City?s obvious and detailed knowledge of the existence of the IC investigation against Councillor Chiarelli, and the clear and express con?rmation from counsel, that the expenses were legitimately and properly incurred, 12 there can be no justification for the fact that the City continues to withhold this requested reimbursement. Of course, our client?s concerns over this issue were only heightened by the recent disclosure that the IC has not faced any similar difficulties or challenges in obtaining appropriate financial resources to pursue his investigation against Councillor hiarelli: . ARV-5 SPORTS I LIFE OBITS WIEDS CARI 1' Hit! :1 CORONAVIRUS DEFENCE WATCH OBSERVER SENATORS E: Ari by (Boogie, Repodmisad ?3:11" -. boss billed for sleuthing as integrity commish looks into Rick Chiarelli allegations A firm retained by Ottawa's integrity commissioner billed more than Si 16000 for investigative services. as the city looks into allegations against Court. Rick Chiarelli. it is our client?s recollection that past 1C investigations have cost no more than $20,000.00. It seems apparent to Councillor Chiarelli that Mayor Watson and other members of Council have pre?detcrmined their preferred outcome for this lC investigation. It seems apparent to Councillor Chiarelli that Council. and/or agents of Council. have provided virtually limitless resources to the 1C, to use at his discretion in the pursuit of his investigation. while at the same time deliberately withholding funds that are properly reimbursed to Councillor Chiarelli. Council has refused to approve a medical leave that was medically justified. Council has refused to reimburse legal expenses that are legitimately and properly reimbursed under the specific provisions ofthe Code ofConduct. Council has permitted the initiation and/or continuation ofa second. formal and duplicative, investigative process against Councillor Chiarelli. involving many of the same allegations, in a fashion that would reasonably be expected to cause additional expense and inconvenience for Councillor Chiarelli. at a time when he continues to recover from life? threatening heart surgery. It is submitted that these actions reliect further bias, and/or that they give rise to a reasonable apprehension of bias. 13 Formal Request for Stay and/or Termination of Investigative Proceedings Councillor Chiarelli hereby formally requests that the and/or Council formally declare that the investigative processes that have been put in motion against our client have been irreparably damaged by the aforementioned actions of the Mayor and/or other members of Council, and that Councillor Chiarelli has been subjected to bias and/or a reasonable apprehension of bias in his attempt to respond to the allegations that have been raised against him. Councillor Chiarelli also requests that these investigative processes be stayed and/or terminated for the same stated reasons. Should the IC and/or Council decline to grant this requested relief, we ask that full and detailed reasons be provided in writing, making speci?c reference to the points raised in this correspondence, and to the various statements and actions of Council, so that there is a full and proper record for any future judicial review proceedings. Yours very truly,