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Compliance audit laws inadequate, argue lawyers for mayor, councillor

Lawyers for Mayor Rob Ford and former North York councillor Peter LiPreti Thursday launched an all-out attack on the provincial elections law that allows residents to request compliance audits of municipal candidates, dismissing the rules as inadequate and accusing Toronto city council's three-person compliance audit committee of lacking the necessary legal expertise to order such reviews.

The arguments, made before Ontario appeal court justice Richard Schneider in the ornate former council chamber at Old City Hall, were meant to buttress motions from the mayor and Mr. LiPreti asking for an entirely new hearing on the question of whether a forensic auditor should review their election finances.

A decision is expected in mid February.

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"[The compliance audit]committee did a lousy job," said Melvyn Solmon, lawyer for Mr. LiPreti, adding that the provisions in the Municipal Elections Act are "a mess." At the end of the hearing, however, Thomas Barlow, Mr. Ford's lawyer, appeared to back away from those remarks. "I think they made the wrong decision."

Adam Chaleff-Freudenthaler, a Toronto resident who applied for both compliance audits, said Mr. Solmon and Mr. Barlow should apologize to the three members of the committee, who have years of experience with Ontario Municipal Board cases, corporate law and elections administration. "If these guys aren't experts in their field, I don't know who is."

The six-hour hearing represented the latest instalment in what has become a long-running and increasingly expensive legal drama for the mayor. In the wake of an investigation by The Globe and Mail last spring, Mr. Chaleff-Freudenthaler and Max Reed submitted a request for a compliance audit, alleging, among other things, that Mr. Ford's campaign had accepted a loan from a family holding company in contravention of both provincial election laws and City of Toronto policy.

While the mayor has always insisted that his campaign abided by all the relevant rules, Mr. Ford's lawyers have fought the compliance audit order ever since. They spent Thursday asking Judge Schneider to set aside that May, 2011, decision so the appeal court could preside over an entirely new hearing, complete with additional evidence and witnesses.

In court, teams of lawyers for both sides, as well as three city solicitors, batted around dense legal arguments about whether the compliance audit committee had rushed to judgment, and how the appeal should proceed, if it had.

Mr. Barlow, a veteran municipal law expert, argued that the committee ordered a forensic audit months before Mr. Ford had formally closed his campaign's books, and pointed out that supplementary financial filings would answer the questions raised by the original audit request.

But Robert Centa, who represents Mr. Chaleff-Freudenthaler and Mr. Reed, cited Supreme Court rulings and other statutes to argue against a new hearing, telling Judge Schneider that such "de novo" trials are only warranted when the legislation explicitly says so.

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"The [Municipal Elections Act]has created a committee to discharge this important function," added Mr. Centa, who served as associate counsel to the inquiry into the Toronto computer leasing scandal a decade ago. "The City of Toronto to its credit sought out and appointed highly regarded experts who have agreed to serve."

Lawyers for the two politicians spent much of the day casting doubt on whether the compliance audit provisions in the elections act provide enough clarity for appeals courts to properly adjudicate disputes such as this one. But in a scrum with reporters after the hearing, Mr. Barlow demurred when asked if provincial legislators need to rewrite the law, which was updated only two years ago.

While Thursday's proceedings mainly dealt with legal issues, politics did creep into the hearing, as Mr. Barlow drew the court's attention to the cost to taxpayers of a full audit of the mayor's election finances. "This is a very important case," he said during the rebuttal period. "The consequences are significant."

Special to The Globe and Mail

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