Fennell seeks damages from city
Former mayor’s legal action demands $450,000 in compensation, claims she was wrongly punished
Former Brampton mayor Susan Fennell is seeking $450,000 in damages from the city and wants to quash the punishment of 90 days loss of pay handed down by council for spending violations. She’s also fighting a council resolution to claw back $144,150 spent on limousine rides.
In a seldom used legal move, Fennell filed an application for a judicial review, which names the City of Brampton and its integrity commissioner, Robert Swayze, as respondents.
nlike a traditional court case, a judicial review involves a panel of three judges in Divisional Court hearing presentations before ruling.
Fennell’s application focuses on two things: Council’s decision to dock her pay after Swayze found she broke the city’s code of conduct and council’s decision to get back the money spent on limousines.
Municipal law expert John Mascarin said because Swayze’s role and powers as integrity commissioner are defined by the Ontario Municipal Act, a review is the correct avenue to ensure the act is followed. Mascarin said he’s unsure if a judicial review is appropriate for Fennell’s challenge of the limo use, because that was the decision made independently by councillors.
A judicial review expert said Fennell will not be able to pursue the $450,000 for damages because judicial reviews handled by the Divisional Court do not deal with such awards.
“She can obtain that remedy in the Superior Court,” said lawyer Michael Sims.
The document obtained from the court Tuesday by the Star outlines what Fennell is seeking.
In the application, her lawyer, David Shiller, states: “There was no basis for passing a resolution deeming the applicant personally financially responsible for driving services in the amount of $144,150.25 as that expenditure had been approved by council . . .”
Regarding the 90 days loss of pay, the maximum penalty under the Municipal Act, which council ordered after Swayze ruled Fennell had knowingly violated rules about travel spending, Shiller states: “The Integrity Commissioner Robert Swayze erred in fact and in law in determining that the applicant’s use of flight passes for travel on city business violated any provision of the Brampton council code of conduct.”
When reached Wednesday, Swayze said he had no comment. Shiller did not respond. Fennell could not be reached.
On Nov. 12, 2014, Swayze addressed council at the meeting when Fennell’s punishments were handed down and said he stood by his report.
Shiller argued before council and for a dispute resolution after a forensic audit of council spending that Fennell did not violate the city’s rules. Those rules stated that tickets had to be booked at the “regular economy airfare rate.” Shiller has argued that because flight passes (packages of one-way tickets with the same cost for all eligible destinations) Fennell purchased were in Air Canada’s economy category, they were allowed.
Aforensic audit of council spending by Deloitte Canada found the Latitude passes Fennell purchased were not the lowest priced in the economy category, offered free upgrades to business class and worked out to more than twice the cost of regular economy tickets for the travel she booked.
In his September finding that Fennell had violated the Code of Conduct, Swayze stated that she had “knowingly” broken rules by buying passes that allowed free upgrades to business class, that she could not provide any documentation for the approval from staff that she said she had received and that she admitted sitting in business class seats while flying on the Latitude passes.
Council passed its resolution to hold back $144,150 from Fennell’s remuneration after the Deloitte foren- sic audit stated she could not provide documentation to prove that private limousine transactions for that amount were for city business. The resolution passed by council states that Fennell will get the amount back if she provides proper documentation to show that the transactions were for city business.
The city has filed a notice of appearance with the courts indicating it will participate in any hearing. Staff said they could not comment on the case as it’s now before the courts. No date has been set for a hearing.
Along with the $450,000 in damages, Fennell is also seeking costs for the application.