The two Toronto residents pressing for a review of Rob Ford's 2010 election expenses upped the political stakes Friday when they said in a statement that the mayor may be asked to testify under oath during a court date set for mid-April that will determine whether a forensic audit of the campaign's books should proceed.
But in a 59-page motion, filed with the Ontario Court of Justice, lawyers for Max Reed and Adam Chaleff-Freudenthaler focused on the mayor's bid to persuade an appeal court to nullify a May, 2011, compliance audit committee decision and order what would effectively be a new trial to review the legality of the campaign's spending. Their motion comes in response to a 13-page submission filed by Mr. Ford's lawyers before Christmas, and sets the stage for a preliminary appeal court session later this month.
In their original request, which was based on a Globe and Mail investigation, Mr. Reed and Mr. Chaleff-Freudenthaler alleged that the Ford campaign relied on early financing provided by a family holding company instead of seeking a loan from a Canadian bank, as required under the Municipal Elections Act.
Mr. Ford has consistently stated that his campaign abided by all relevant laws and procedures. While he has said in the past that he would welcome an audit of his campaign's books, he has turned to the courts to fight the compliance audit order. His office will not comment on the court proceedings.
Violations of the act can result in a range of penalties, from fines to removal from office.
In his pleadings, Tom Barlow, Mr. Ford's lawyer, told the appeal court that it should order a new hearing and review fresh evidence that, he said, was not available when council's compliance audit committee made its ruling last spring.
But Robert Centa, who is representing the two residents, argued that while the Municipal Elections Act allows for appeals of compliance audit committee decisions, it didn't envision the upper level courts holding new trials. As his submission points out, there are numerous Canadian cases in which appellate judges have batted aside such requests, but none in which an Ontario court agreed to hold an entirely new hearing in a compliance audit case.
The submission by Mr. Ford's lawyer didn't cite any compliance audit appeals that resulted in a new hearing.
Mr. Centa will also argue that the court should reject Mr. Barlow's request to admit new evidence. "The court can't determine whether the evidence is relevant because Mr. Ford has not provided any proposed fresh evidence to the court."
Mr. Barlow, however, noted that the campaign's books were not formally closed last May, when the compliance audit committee ordered the forensic review, and that additional documentation was included in a set of supplementary audited financial statements submitted to the city's elections office last fall.
Even as the legal machinations proceed, the compliance audit committee last November selected a forensic auditor to do all reviews arising for the 2010 elections. Froese Forensic Partners, a 14-person firm, is led by veteran accountant and fraud investigator Ken Froese, who has conducted compliance audits of mayoral candidates in Vaughan and Hamilton.