Law Times

Law Times • June 27, 2011 FOCUS Windsor dean leaves for municipal posting Bruce Elman becomes city's new integrity commissioner BY RON STANG For Law Times WINDSOR, Ont. — Outgoing Uni- versity of Windsor Faculty of Law dean Bruce Elman is the City of Windsor's new integrity commissioner, an offi ce that has been fraught with controversy during its young life. But Elman just might be the right can- didate for the job given that a major reason for his predecessor's resignation was that he lived too far away from Windsor and felt torn between family obligations and work- ing for the city. Earl Basse, a retired RCMP inspector and now Hamilton's integrity commissioner, also criticized the city for not having appropriate protocols for the position that it created in 2007. Windsor city clerk Valerie Critchley says the city hired Elman not just because of his professional background but also because "he does live in our community and has some ties to the community." Elman, University of Windsor dean of law for 11 years and a Nova Scotia native, has long had an interest in professional eth- ics. "I taught professional responsibility and ethics when I was at the University of Al- berta and I continue to be interested in the subject and I write in that area," he says. Th is fall, Elman will also be teaching a course on fundamental freedoms at the University of Toronto, where he will be a visiting scholar at the Centre for the Legal Profession. While Elman says he doesn't want to sound "Pollyannish," he notes another reason he applied for the Windsor job was that he wanted "to give something back to the City of Windsor." Elman follows in a relatively recent tradition of law deans, professors, and lawyers receiving appointments as mu- nicipal integrity commissioners. In To- ronto, where the offi ce has been in place since 2004, the two previous commis- sioners were David Mullan and Lorne Sossin. Both of them are academics. While Toronto's offi ce adjudicates over code of conduct provisions in the City of Toronto Act, the provincial legislature amended the Municipal Act in 2006 to allow municipalities in general to adopt measures to increase accountability and transparency, including by creating offi ces of integrity commissioners. Windsor wrote its code of conduct in 2007 and created the offi ce at that time. However, one of the issues that arose between Basse and Windsor city council was the lack of protocols for him to inves- tigate complaints. Elman says that's the fi rst matter he'll address. Windsor has been using the Toronto integrity commissioner's offi ce, which has a well-defi ned set of protocols, as some- thing of a model. Th ere are currently 18 municipalities that have retained com- missioners, usually on a part-time basis. While Elman was aware of two high- profi le cases before the city's former com- missioner — including Windsor Mayor Eddie Francis' meeting on city business with former Detroit mayor Kwame Kil- patrick, who was violating a bond by be- ing in Canada without permission while facing charges in a sex and perjury scandal — he was unaware of just how much of a lightning rod the offi ce had become for numerous city hall critics and bloggers. 'We've been developing in Canada a pretty healthy respect for independent oversight agencies and individuals,' says Bruce Elman. "It's interesting," he says. "When I had my fi rst discussions with some of the city offi cials . . . they were telling me about this and I had no knowledge of it." Taking a page from his specialty in administrative ethics, Elman says having elected offi cials adhere to a code of con- duct is "fundamental to the concept of good governance." Th e commissioner's role requires investi- gation and adjudication of complaints from members of the general public. But Elman also hopes to include mediation. "Because of my background and because I spent 11 years as the chair of the University of Windsor mediation services, I'm very in- terested in the idea that we'll be able to put some mediation processes into the protocols that surround the complaints." Stephen D'Agostino, a partner at Th om- son Rogers who has a municipal law prac- tice with a strong emphasis on public inter- est matters, says the integrity commissioner provides a "middle ground" for complain- ants and elected offi cials. Previously, com- plainants had to rely on the Municipal Con- fl ict of Interest Act, which is still in eff ect. "If you're found to be in confl ict, the member of council loses their seat and that's the end of it. Th ere was no room for discussion or a grey area," he says. Th e sys- tem also resulted in high court costs. At the same time, the new codes of conduct are broader in terms of coverage than the confl ict legislation. Th e codes deal with matters such as councillors' personal behaviour and treatment of staff . "But the consequences that fl ow from it are also less severe," D'Agostino says. Penalties in Windsor include a formal reprimand and loss of up to three months of salary. Consequently, there's little jurispru- dence stemming from decisions of integ- rity commissioners. Toronto's Janet Leiper, who was appointed in 2009, hasn't had any of her decisions challenged in court. Elman thinks a reason for that is that independent offi ces like integrity com- missioners, auditors general, and om- budsmen have become well accepted by the public. Noting the respect accorded to recently retired federal auditor general Sheila Fraser, he says: "We've been de- veloping in Canada a pretty healthy re- spect for independent oversight agencies and individuals." www.lawtimesnews.com Untitled-1 1 6/22/11 11:12:14 AM ORDER # 983645-61871 $99 Softcover approx. 560 pages June 2011 978-0-7798-3645-1 AVAILABLE RISK-FREE FOR 30 DAYS Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Online: www.carswell.com Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. PRACTICAL ADVICE AND ANALYSIS TO HELP AVOID LIABILITY NEW EDITION EXECUTIVE LIABILITY AND THE LAW, 2ND EDITION DAVID BISHOP DEBENHAM, M.B.A., LL.M., D.I.F.A., C.M.A., C.F.E., C.F.I. Help your executive clients understand and manage the common law, equitable, and statutory claims that may be visited upon them in a world of evolving social responsibilities. 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The new edition includes comprehensive analysis of the following issues: • Executive Liability for Negligent Corporate Investigations • Participation and Negligent Misrepresentation • Piercing the Corporate Veil at the Executive's Request • Who is a Director? • The Statutory Oppression Remedy • Duty of Care and Good Faith to Creditors • Executive Liability for Human Rights Violations • Executive Liability for Workers' Safety • Executive Liability Under Franchise Legislation • Fraudulent Conveyances, and Assignments and Preferences • Criminal and Civil Fraud PAGE 13

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