Council Code of Conduct, Appendix B: The Complaint Process

Any individual who has identified or witnessed behaviour or activity by a Member that appears to be in contravention of the Code or sections 5, 5.1 and 5.2 of the Municipal Conflict of Interest Act may address their concerns through one of the following processes outlined below. Complaints regarding the Code may be addressed through either the informal or formal complaint process, while complaints regarding the Municipal Conflict of Interest Act may only be dealt with through the formal complaint process.

A. Informal complaint process 

1. Individuals (including Members, employees, members of the public or local boards) who identify or witness behaviour or activity by a Member that appears to be in contravention of the Code may address the prohibited behaviour or activity themselves as follows:
   1. Advise the Member that the behaviour or activity appears to contravene the Code.
   2. Encourage the Member to stop the prohibited behaviour or activity and to avoid future occurrences of the prohibited behaviour or activity;
   3. If the Member stops the prohibited behaviour or activity, the process may terminate at this step. If not, the complainant should continue the process below.
   4. Document the incidents including dates, times, locations, other persons present, and any other relevant information. Request that the Integrity Commissioner assist in the informal discussion of the complaint with the Member to resolve the issue. If applicable, confirm to the Member whether their response is satisfactory or, if applicable, advise the Member that the response is not satisfactory; and
   5. At the earliest possible juncture, the Member, whose behaviour is the subject of the complaint, will be advised of an inquiry to the Integrity Commissioner under the informal complaint process, as will any complainant.
   6. Pursue the matter in accordance with the formal complaint process outlined starting in section 2 below, or in accordance with any other applicable judicial or quasi-judicial process or complaint procedure.
2. Individuals are encouraged to pursue this informal complaint process as a means of stopping and remedying a behaviour or activity that they believe violates the Code. The informal complaint procedure will not apply to complaints against Members in respect of section 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act.
3. With the consent of both the complainant and the Member, the Integrity Commissioner may participate in any informal process. The parties involved are encouraged to take advantage of the Integrity Commissioner’s potential role as a mediator/conciliator of issues relating to a complaint. However, it is not a precondition or a prerequisite that a complainant pursue the informal complaint process prior to pursuing the formal complaint process set out in section 2 below.
4. The Integrity Commissioner will assess the suitability of the informal complaint process for settlement or resolution on an ongoing basis and may at any time decline to continue participation in the process. The complainant or the Member can decline to participate in the informal complaint process at any time. The informal complaint process is informal as such the Integrity Commissioner will not perform an official investigation nor provide a public report, even if the parties agree to involve the Integrity Commissioner.

B. Initiation of formal complaint process 

1. All formal complaints must be made using town’s complaint form/affidavit as made available on the town’s website and shall be dated and signed by an identifiable individual. Anonymous complaints, complaints made by organizations, complaints using aliases or complaints made on behalf of another person will not be accepted.
2. The complaint must include an explanation as to why the issue raised may be a contravention of the Code and any evidence in support of the allegation must be included with the complaint form/affidavit.
3. The complainant is encouraged to identify witnesses in support of the allegation but may provide the names of witnesses confidentially to the Integrity Commissioner.
4. The complaint form/affidavit must include the name of the Member alleged to have breached the Code, the section of the Code allegedly contravened, the date, time and location of the alleged contravention and any other information as required on the complaint form/affidavit;
5. The complaint shall be filed with the Integrity Commissioner requesting that the Integrity Commissioner determine whether a Member has contravened the Code.
6. Council as a whole may also file a complaint against any of its Members of an alleged contravention of the Code by passing a resolution requesting the Integrity Commissioner to undertake an inquiry.
7. Complaints regarding the Code will not be accepted later than six months after the action alleged in the complaint.

C. Initiation of formal complaint process - Municipal Conflict of Interest Act

1. An elector, as defined in section 1 of the Municipal Conflict of Interest Act or a person demonstrably acting in the public interest (collectively, "complainant") may file a request that the Integrity Commissioner carry out an inquiry concerning an alleged contravention of sections 5, 5.1 or 5.2 of that statute by a Member in accordance with the following requirements:
   1. all requests (also referred to as "complaints") shall be in writing on the prescribed form as made available on the town’s website, dated and signed by an identifiable individual; anonymous complaints, complaints made by organizations or complaints using aliases will not be accepted;
   2. the request shall include a statutory declaration attesting to the fact that:
      1.  the complainant became aware of the contravention not more than six weeks before the date of the complaint, or
      2. that the complainant became aware of the alleged contravention during the period of time described in paragraph 1 of subsection 223.4.1 (5) of the Municipal Act, 2001;
   3. Council may also pass a resolution directing the Mayor, or an alternate representative if the Mayor is the subject of the allegation, to request that the Integrity Commissioner undertake an inquiry respecting an alleged contravention of sections 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act by a Member and provide a full and complete record of evidence to the Integrity Commissioner who, while under no obligation whatsoever to, may seek additional information to supplement or complete the evidentiary record to substantiate or support the allegations set out in the complaint or request.

D. Filing of formal complaints and classification

1. The complaint may be filed directly with the Integrity Commissioner electronically using the appropriate form as available on town’s website.
2. Complaints may not be filed with an employee and employees will not assist in the preparation or submission of complaints to the Integrity Commissioner.
3. The Integrity Commissioner shall initially classify the complaint to determine if the matter is, on its face, a complaint with respect to non-compliance with the Code and not covered by other legislation or other Council by-laws, policies or procedures, or whether it is a request under sections 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act.

E. Refusal to conduct investigation

1. The Integrity Commissioner has discretion as to whether to carry out an investigation. If the Integrity Commissioner is satisfied, and after considering the information contained in the complaint, that a complaint:
   1.  is frivolous or vexatious;
   2. is not made in good faith;
   3. constitutes an abuse of process;
   4. discloses no grounds or insufficient grounds of an investigation; or
   5. does not warrant a full investigation,

The Integrity Commissioner shall not be required to conduct an investigation and may summarily dismiss the complaint. Where this becomes apparent during the course of an investigation, the Integrity Commissioner shall terminate the inquiry and provide notice to the complainant and, if necessary, to the Member. In exceptional circumstances, the integrity commissioner may report to Council on the dismissal.
 

F. Opportunities for resolution

1. Following receipt and review of a formal complaint or at any time during the investigation where the Integrity Commissioner, in their discretion, believes that an opportunity to resolve the matter may be successfully pursued without a formal investigation, and both the complainant and the Member agree, efforts may be pursued to achieve an informal resolution.

G. Investigation

1. Except where the Integrity Commissioner has a full factual record and believes, in their sole discretion, that no additional information is required, or where otherwise required by the Public Inquiries Act, 2009, or where the Integrity Commissioner has not otherwise terminated the inquiry, the Integrity Commissioner may proceed as follows:
   1. provide the Member with an outline of the complaint with careful thoroughness of detail to allow the Member to understand the complaint against them, but the Integrity Commissioner shall not have any obligation to disclose:
      1. the identity of the complainant; or
      2. the identity of any witnesses set out in the complaint or persons that are questioned/interviewed by the Integrity Commissioner, unless it is essential for the Member to adequately respond to the complaint, the determination of which shall be made in the Integrity Commissioner's sole and absolute discretion.
   2. request that the Member provide a written response to the allegations in the complaint to the Integrity Commissioner within 10 business days;
   3. provide a copy of the Member's response to the complainant with a request that any written reply be provided by the complainant to the Integrity Commissioner within 10 business days; and
   4. extend the timelines set out above if the Integrity Commissioner deems it necessary to do so in their sole and absolute discretion.
2. If necessary, after reviewing the submitted materials, the Integrity Commissioner may contact and speak to or correspond with any other persons, access and examine any other documents or electronic materials, including any materials on the town’s computers and servers, and may enter any town work location relevant to the complaint for the purpose of investigation and potential resolution.
3. The Integrity Commissioner may, but is under no obligation, to provide the Member with a draft of the proposed draft report on the complaint.
4. The Integrity Commissioner shall not issue a report finding a violation of the Code on the part of any Member unless the Member has had an opportunity, either in person or in writing, to comment to the Integrity Commissioner on any of the preliminary or proposed finding(s).
5. The Integrity Commissioner may, but is under no obligation, to advise either the Member or the complainant of any proposed sanction or recommendation the Integrity Commissioner may include in a report to Council.
6. The Integrity Commissioner may make interim reports to Council where necessary and as required to address any instances of interference, obstruction, intimidation, delay, reprisal or retaliation by the Member or by any other person encountered during the formal complaint investigation.
7. The Integrity Commissioner is entitled to make such additional inquiries and provide such additional reports to Council where necessary and as required to address any instances of non-compliance with any decision of Council including the failure to comply with any penalties or corrective measure or actions imposed by Council.
8. The Integrity Commissioner shall retain all records related to the complaint and investigation but may provide copies of certain records, in confidence, to the Town Clerk. The Clerk is required to ensure that any such records are securely and confidentially retained in accordance with the town’s Corporate Records Management Program.

H. No complaint prior to municipal election

1. Notwithstanding any other provision of this complaint process, no complaint may be filed with the Integrity Commissioner and no report shall be made by the Integrity Commissioner to Council during the period starting on nomination day for a regular municipal election year ending on the voting day in a regular election. The referred days are determined in accordance with the Municipal Elections Act, 1996.
2. If the Integrity Commissioner has received a complaint and has commenced an inquiry but has not completed the inquiry before nomination day in a regular municipal election year, the Integrity Commissioner shall terminate the inquiry on nomination day but may commence an inquiry in respect to the same complaint if within six weeks after the voting day in a regular municipal election the individual who made the request makes a further written request to the Integrity Commissioner in accordance with subsection 223.4(8) of the Municipal Act, 2001.

I. Advice provided to Member by Integrity Commissioner

1. A Member is entitled to rely on any written advice given to them by the Integrity Commissioner respecting the Code in any subsequent consideration of the conduct of the Member regarding the same matter, provided that the Member fully disclosed, in writing, all relevant facts known to them and acted in accordance with the written advice provided by the Integrity Commissioner.
2. If the Integrity Commissioner applies to a judge under section 8 of the Municipal Conflict of Interest Act for a determination as to whether the Member contravened sections 5, 5.1 or 5.2 of that statute, the Member is entitled to advise the judge of any written advice given by the Integrity Commissioner, provided that the Member fully disclosed in writing all relevant facts known to them and acted in accordance with the written advice provided by the Integrity Commissioner.
3. A Member under investigation by the Integrity Commissioner shall not request advice from the Integrity Commissioner as to the Member's rights under the Code, the Municipal Conflict of Interest Act, or generally at law with respect to any matter that the Integrity Commissioner is investigating or reviewing with respect to the Member. Further, the Member is not entitled to rely upon any statement(s) made by the Integrity Commissioner during any investigation or review that may impact the Member's rights under the Code, the Municipal Conflict of Interest Act or generally at law.

J. Authority to abridge or extend

1. Notwithstanding any requirement, obligation or timeline set out in the Code or this complaint Process, the Integrity Commissioner shall retain the right to abridge or extend any provision therein in the public’s interest.

K. Investigation report

1. The Integrity Commissioner shall report to the complainant and the Member no later than 90 days after the official receipt of any complaint (as determined by the Integrity Commissioner) under the Code. If the investigation process is anticipated to take or takes more than 90 days, the Integrity Commissioner shall provide an interim report to Council and must advise the parties of the approximate date that the report will be available. The Integrity Commissioner may also, at their discretion, advise any witnesses or other persons of the approximate date the report will be available.
2. Where the complaint is sustained in whole or in part, the Integrity Commissioner shall report to Council outlining their findings, the terms of any settlement and/or any recommended remedial or corrective measure or action.
3. The Integrity Commissioner may provide a copy of the report to the complainant and the Member whose conduct has been investigated in advance of the public release of the report, in strict confidence until the report is publicly released. The Member shall have the right to speak to the report if it is considered at a meeting of Council (refer to section 13 below).
4. Where the complaint is not sustained, the Integrity Commissioner shall, at their discretion, report to Council on the result of the investigation or any findings. Alternatively, such information, as they deem necessary, may be included in a report or as part of an annual or other periodic report by the Integrity Commissioner.
5. The Integrity Commissioner shall complete the investigation under the Municipal Conflict of Interest Act no later than 180 days after the official receipt of any complaint validly made.

L. Findings

the Integrity Commissioner may so state in the report and may make appropriate recommendations pursuant to the Municipal Act, 2001, including but not limited to a recommendation of no penalty.

1. If the Integrity Commissioner determines that:
   1. there has been no contravention of the Code or sections 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act, or
   2. a contravention occurred but:
      1. the Member took all reasonable measures to prevent it;
      2. the Member sought and followed the advice of the Integrity Commissioner and provided all relevant facts known to them; 
      3. it was trivial;
      4. it was committed through inadvertence; or
      5. it resulted from an error in judgement made in good faith;
2. If the Integrity Commissioner considers it appropriate, once they have concluded the investigation, they may apply to a judge under section 8 of the Municipal Conflict of Interest Act for a determination as to whether the Member has contravened section 5, 5.1 or 5.2 of that statute. If the Integrity Commissioner does not proceed with an application to the judge, they shall so advise the complainant.
3. If the Integrity Commissioner finds that the complaint is sustained in whole or in part, the Integrity Commissioner may make recommendations as set out in section 12 of the Code.

M. Report to Council

1. When the Integrity Commissioner submits to Council a Code of Conduct Complaint Investigation Report, it shall be placed on the agenda for the next regular meeting of Council, or a special meeting that is scheduled prior to the next regular meeting for the exclusive purpose of considering the investigation report.

N. Duty of Council:

1. Upon submission of a Code of Conduct Complaint Investigation Report, Council shall:
   1. receive the Report;
   2. may accept, vary or reject the Integrity Commissioner recommendation on sanctions, if any;
   3. may ask the Integrity Commissioner questions of clarification on her process. Questions seeking clarification go to the Integrity Commissioner. The Member subject of the complaint is not investigated at Council.
   4. may not ask questions of the Member who has been investigated. The Integrity Commissioner is the third-party investigator and fact finder and the only person who may question the Member in the course of the investigation process.
2. Council may make a decision on the report at the meeting at which it is presented or postpone a decision on the report for no more than two regular meeting cycles.

O. Public disclosure

1. The Integrity Commissioner and every person acting under their jurisdiction shall preserve confidentiality where appropriate and where it does not interfere with the course of any investigation, except as required by law and as required by this complaint process.
2. The Integrity Commissioner shall retail all records related to the complaint and investigation, although copies may be provided to the Town Clerk, subject to the duty of confidentiality under subsection 223.5 of the Municipal Act, 2001.
3. The identity of the Member who is the subject of the complaint shall not be treated as confidential information in the Integrity Commissioner's report to Council. The identity of the complainant and any other person, including witnesses, may be disclosed if deemed appropriate and necessary by the Integrity Commissioner and/or if consented by the complainant.
4. All reports from the Integrity Commissioner to Council shall be made available to the public by the Town Clerk.

P. Delegation by Integrity Commissioner

1. The Integrity Commissioner may delegate in writing to any person, other than a Member, any of the Integrity Commissioner's powers and duties under Part V.1 of the Municipal Act, 2001.