Niagara Falls Mayor & council members reject direction from Ombudsman; maintain exorbitant $500 fee to complain about their own conduct

It should have come as no surprise to Councillor Lori Lococo that she would come up empty handed in her effort to get Niagara Falls Council to consider her Notice of Motion at their most recent meeting of April 9th, calling for easier access to oversight for all residents seeking to hold herself and her colleagues accountable to the voters who put them in office. 

On the surface, it seemed innocuous enough, asking for staff to prepare a report on Integrity Commissioner complaints from other cities in the Region, including the number of complaints, costs of the complaints and any related filing fees. However, this would not be the first time her colleagues had shown antipathy toward her efforts to have the Council look at their processes surrounding complaints to the Integrity Commissioner, especially a controversial, excessive $500 filing fee that has twice prompted Ontario’s Ombudsman to criticize the municipality. As recently as their previous meeting on March 19th, Council members justified the municipality’s practices surrounding Code of Conduct complaints.

Ontario Ombudsman Paul Dubé first wrote to Niagara Falls City Council in February 2023 indicating that his office had received complaints, especially regarding the $500 fee: “[T]here should be no fee or other barrier to make a complaint to the Integrity Commissioner…Charging a fee to complain is entirely inconsistent with the primary intent of the Integrity Commissioner scheme, which is to foster democratic legitimacy and public trust at the local level.”

Dubé has written in the past that, “The Municipal Act, 2001 requires that all municipalities appoint an Integrity Commissioner, or make the services of an Integrity Commission available, to address complaints regarding the ethical conduct of members of council and local boards. This system is premised on a willing public coming forward to assist in ensuring that transparency is maintained at the municipal level… While some municipalities have chosen to implement a complaint fee, my Office has publicly denounced this practice as it penalizes complainants for exercising their statutory rights, and may prevent legitimate complaints from being brought forward due to concerns about financial cost.”

Following these words, which were directed at Hamilton’s City Councillors in 2022, they immediately cancelled the $100 fee that had been charged to complainants. One of the municipality’s elected officials, who voted to get rid of the charge, said at the time that “it fundamentally prevents those with lower income from being able to access this accountability and transparency mechanism.”

Many other municipalities in Ontario also do not charge a fee, under the Ombudsman’s direction, to file a complaint against a council member with an integrity commissioner. 

Other than Lococo, Niagara Falls council members have decided to ignore the right of residents to easily access their primary accountability option under provincial law, when they believe a municipal elected official is violating the rules that govern their behaviour. 

Despite the clear position of the Ombudsman, who ultimately holds municipal elected officials accountable in Ontario, almost all the Niagara Falls members of council have ignored his direction and choose to keep the fee, which is far higher than the cost in other municipalities that also still charge a complaint fee. Council members have admitted the $500 cost is an intentional way to deter accountability over their own conduct. 

After having his first plea fall on deaf ears Dubé sent a second letter that was on the agenda of the March 19th, 2024 meeting, once again calling upon Council to remove “such unnecessary and heavy-handed barriers to making complaints.”

Mayor Jim Diodati acknowledged that the Ombudsman’s office had not “changed their tune” on the fees, claiming “hundreds of thousands of dollars” the City had incurred in legal costs dealing with the various Code of Conduct complaints over the years was the reason for the excessive fee.

If the intention of council members, other than Lococo, was to deter complaints and decrease legal costs, the $500 fee has not been completely successful.

A related memo on the agenda from City Clerk Bill Matson attempted to justify the $500 fee: “[E]ven since imposing the $500 fee, taxpayers have spent in excess of $75,000 for investigations conducted by the Integrity Commissioner on complaints that have been filed, none of which have shown any violations. Staff are of the belief that the costs for investigations would be substantially higher should Council decide to do away with the fee required to file a Code of Conduct complaint and that known abusers of the system would no doubt increase their submissions.”

However, when questioned by Councillor Mike Strange at the meeting on whether the $500 fee had been a deterrent, helping to reduce the cost of investigations, the City Clerk was more circumspect, indicating there had been “eight or nine” complaints when the fee had been $200, costing the City around $90,000, with only one violation. After the $500 fee had been imposed, the Clerk indicated there were “seven complaints and two additional complaints from Council”, that actually cost the City more, at approximately $135,000, but again noting that there had only been one Code of Conduct violation. He finished his reply to the Councillor by indicating that one should not “draw too many conclusions” on whether the fee reduced Code of Conduct complaints.

First-term Councillor Mona Patel, who was not on Council when the filing fees were imposed, defended them by using the example of fees to file a small claims matter. She argued without the $500 filing fee for Code of Conduct complaints, the City would get “ten complaints after every meeting”.  

The filing fee for a small claims court matter is only $108 and while the court does have a separate fee for frequent claimants, it too is well below the $500 Code of Conduct complaint fee, at $228.

At the March 19th meeting, Councillor Lococo indicated her desire to bring forward a motion to get staff to do “some research and get some statistics” from other municipalities. She was advised by the Mayor that procedurally her matter would have to wait until the next meeting on April 9th.

Accountability and transparency provisions were first added to the Municipal Act in 2006, in wake of a judicial inquiry into allegations of bribery and conflicts of interest resulting from the City of Toronto computer leasing scandal. On March 1, 2019 it became mandatory for all Ontario municipalities to appoint an integrity commissioner and develop a Code of Conduct to govern the behaviour of Council and local board members. 

The reports that come from an integrity commissioner are the result of an inquiry or investigation conducted after a request made by a councillor or member of the public about whether a member of council or of a local board has contravened the Code of Conduct.

Niagara Falls City Council first adopted a Code of Conduct for its members in 2017 but had a number of integrity complaint investigations and workplace harassment claims involving councillors going back to 2015. Different investigators were involved but since April 2019, Niagara Falls has used the services of ADR Chambers, a conflict resolution firm that provides integrity commissioner services to more than 40 municipalities, with Edward T. McDermott, the Integrity Commissioner of Record for the municipality.

Between 2015 and September 2020, the municipality incurred nearly $300,000 in legal fees related to eleven (11) investigations. Interestingly, the Council report at the time, from the City’s Director of Human Resources Trent Dark shows that only three of the complaints came from residents, with the majority of complaints filed by either a councillor or a member of the Senior Staff.  

A report on the same September 2020 agenda, by then City Solicitor Ed Lustig, responds to a number of questions that had previously been raised by Councillors, one of which was whether a fee could be charged:

“[S]hould Council determine that it wishes to amend its Code of Conduct to include a fee for filing a complaint against a Member of Council under its Code of Conduct, it will need to provide direction on how much it wants to charge and whether the fee is to be refundable if the complaint is successful.”

The Solicitor’s report also excerpts an email from Bill Matson, City Clerk, regarding fees:

“[I] reached out to the Niagara Area Clerks to see which municipalities charge a fee to file a Code of Conduct complaint," he detailed at the time:

• St. Catharines: $36.90
• Ft. Erie: $100.00, refundable if the complaint is found valid
• Hamilton:$100.00, refundable if the complaint is found valid (was eliminated after the report)
• Grimsby: $200.00, refundable if the complaint is found valid

At the September 2020 meeting, Council approved the implementation of a $200 fee that would be refundable if the complaint was found to be valid. Former councillor Carolynn Ioannoni and Lococo voted against the motion.

In June 2021, staff brought forward some updates to the City’s Code of Conduct and a related report in response to a motion from Council, from the previous November, to “come back with an update with a further review of the Code of Conduct including how it compares to other municipalities.” 

The report, once again written by the Director of Human Resources, deals primarily with whether the City should institute a gift registry, which would detail any gifts received by Council members over a certain monetary value. The report notes that in the Niagara Region, only St. Catharines and Niagara-on-the-Lake had such registries and that disclosure requirements of municipalities surveyed ranged from “$200 to $500 and above”.

Council rejected the gift registry, but revisited the fee associated with Code of Conduct complaints. City councillor at the time Chris Dabrowski raised the possibility of an increase to the filing fee, a position echoed by others, including then-city councillor Vince Kerrio, who argued that the City was “getting complaints left and right”, many of which were politically motivated and that it was the the taxpayers that were bearing costs of as much as $20,000 for a complaint to be investigated. Kerrio also described the complaints in binary terms, where if the complainant “won”, if it was proven that the councillor was in violation of the Code of Conduct, half the fee would be reimbursed, but if the complainant “lost”, with no violation determined by the Integrity Commissioner, they would not be entitled to any reimbursement. 

The Solicitor reminded the Council that such a fee should be strictly an administrative fee and not be a barrier to access. The Council voted to increase the fee to $500, with “50 percent of the fee be refundable if found to be valid. In the event that the Integrity Commissioner determines that a complaint is frivolous, vexatious or contains insufficient grounds to support an investigation under the Code of Conduct, the complainant shall forfeit the fee of $500.” The fee did not apply to complaints initiated by councillors. Once again, Councillors Ioannoni and Lococo voted against the motion.

One other amendment made to the Code of Conduct at the time, was stating that complaints could only be initiated by a “resident of the City of Niagara Falls.” This wording differed from more generic language seen in other municipal codes that describes a complainant as a “member of the public”—language that also appears in the Municipal Act.  

The following year, the residency requirement precluded the City’s Integrity Commissioner from considering a complaint from St. Catharines resident, Sabrina Hill, who alleged longtime Council member Wayne Thomson called her a “sick dog” during a phone call where she pressed him on his support for Marineland.

Ontario Ombudsman Paul Dube noted the residency requirement in his February 2023 letter to Council. He also found fault with the broad interpretation the City was giving to “frivolous and vexatious” in determining whether to refund half the filing fees.

“[T]he City’s Code also conflates complaints that are judged to lack sufficient information with those that are determined to be vexatious or frivolous.”

The Ombudsman was also critical of the Integrity Commissioner for dismissing a complaint (in part) for insufficient information without reaching out to the individual to clarify or obtain additional information. 

“[C]omplaints that contain insufficient information to support an investigation may still merit further review by the Integrity Commissioner. Members of the public making a complaint may not be familiar with how to frame a complaint or the kind of information required to support an allegation. These complaints should not be placed in the same category as frivolous or vexatious complaints, and should not necessarily be dismissed immediately.”

A few months after the Ombudsman’s Letter, the City Clerk prepared a report with some amendments to the Code of Conduct.  Council approved provisions that allowed the Integrity Commissioner to reach out to complainants to clarify or ask for additional information, to investigate local boards and to offer mediation methods, as a way to avoid full investigations. Council rejected a change in wording suggested by staff that a complaint could be filed by “any identifiable person acting in the public interest”, deciding to keep the residency requirement criticized by the Ombudsman.  The Council also reiterated its position supporting the $500 filing fee.

While the staff reminded Council of the Ombudsman’s recommendation of no fee, the report compared the filing fee to fees charged under the Municipal Elections Act and the Municipal Freedom of Information & Personal Privacy Act, failing to note that those fees are set by the Province and not unilaterally determined by the municipality.  The Clerk’s report also described the rationale for the fee, not as a method to cover administrative costs or to weed out frivolous and vexatious claims, but as a result of “a series of unfounded complaints that were investigated and paid for by the municipality.” 

The Ombudsman noted the “unfounded complaints” rationale for the fee in his second letter to Niagara Falls, which also disclosed another questionable practice in how complaints are being processed in Niagara Falls. 

One complainant, after raising concerns regarding more than one issue and member of council, was told that they would have to pay the $500 fee for each separate issue raised. Dube pointed out that the City has not adopted any guidelines or policies to guide this determination, or communicated to the public that a single complaint might be split.  He also opined that the City should “clarify internally how the fee is administered”.

On the fee itself, the City’s current solicitor, Nidhi Punyarthi noted the Council had the statutory authority to charge a fee that would “go toward costs” of City staff; however, City Clerk Matson admitted that there was not a “tremendous amount of staff time” involved and other than the occasional back and forth he might have with the Integrity Commissioner, staff would be merely receiving and forwarding the complaints on. Nonetheless, he, once again, justified the fee by using the Municipal Elections Act example, arguing that without the $200 filing fee for Mayor, the municipality would be inundated with people registering to run for Head of Council “just to see their name on the ballot”.

Councillor Lococo, introducing her motion on April 9th, reasoned that like other important decisions of Council “we should do some research and strongly consider the Ombudsman’s recommendations.” She repeated the argument that the fee was a barrier and while she had no issue with an administration fee, it should accurately reflect staff’s costs. 

When Mayor Diodati asked for a seconder to Councillor Lococo’s motion, he was met with silence and announced that the motion had failed. Lococo, still pleading her case, argued that she was not asking Council to make or change any decisions but to merely get a report from staff. She argued that the more information Council members had, the more informed their decision-making would be.

Her last comment prompted Councillor Victor Pietrangelo to announce “we have had this before.” 

“A report?” Councillor Lococo asked.

“Yes.”

“This term?”

The Mayor clarified that it would have been during the previous Council term. He declared that the matter had been well reported and debated by the Council.   

When Councillor Lococo said she did not recall any such report, at least not one that showed any other municipalities charging as much as Niagara Falls, Diodati pushed back. He claimed that a previous Council report noted that NIagara-on-the-Lake had a “$500 or $600 fee” to file a Code of Conduct complaint.

A review of Niagara Falls Council agendas did not reveal any such all-encompassing report. As previously noted, the Solicitor’s 2020 report contained an email excerpt identifying the fees of four other municipalities and the report of the Director of Human Resources noted that Niagara-on-the-Lake had a gift registry. Nonetheless, the Mayor promised Councillor Lococo that she would receive the previous report.   

A review of the Niagara-on-the-Lake website, fees by-law and Council minutes indicate that the municipality has never charged for the filing of a Code of Conduct complaint. A January 2023 report from the Town of Pelham that looked at filing fees throughout Niagara confirms this, though it notes that the municipality was “considering a possible fee”, which has not been implemented, to date.

As for other Niagara municipalities, the Region, Welland, Lincoln, Thorold, Port Colborne and West Lincoln do not charge to file a Code of Conduct complaint. The fee in St. Catharines appears to be strictly related to the City’s administration cost to process and send off a complaint to their Integrity Commissioner, coming in at $40.75. Fort Erie charges $100, while Grimsby charges $200.

The only Niagara municipality that comes close to the $500 fee Niagara Falls charges is Wainfleet, which will charge $500 for a “frequent complainant”, though normally the fee is $100 and the full amount will be refunded if the complaint is judged to be valid. Similarly, Pelham has a graduated fee structure, with it being free to first-time complainants, $100 for a second complaint and $300 if the individual has filed three or more complaints.

What about the other information Councillor Lococo was seeking? Can such information be gathered through a review of municipal websites?  

The Pointer looked at publicly available data for the Niagara Region and the three largest lower area municipalities (St. Catharines, Niagara Falls and Welland) only.     

Councillor Lococo had promoted the idea of the City posting all Integrity Commissioner decisions and annual reports on the website. All four of the Niagara municipalities reviewed have a web page related to Code of Conduct complaints and the Integrity Commissioner, often under an Accountability and Transparency heading on their website. The sites include copies of the municipality’s respective Codes of Conduct, any application blank and filing procedures. 

The Municipal Act indicates that “the municipality shall ensure that reports received from the Commissioner by the municipality are made available to the public”, however, how that availability is made is not explicit.  Welland and St. Catharines have all previous written decisions from their Integrity Commissioner compiled on their respective pages. To find the written decisions for the Niagara Region and Niagara Falls, one would have to look up the particular meeting or standing committee agenda that such decisions were disclosed at.

The Municipal Act also refers to the Integrity Commissioner providing a “periodic report” to the municipality. Although there is no standardization as to what should go in such reports, in most cases the Integrity Commissioner provides an annual update of activities, though such updates are based on the anniversary of the Commissioner’s hiring and are not related to a calendar year making it difficult to compare municipalities.   

Also, the reports may differ based on the style of the Commissioner.

For example, in the most recent annual report to the Region, from ADR Chambers’ Michael Maynard, he provides a chart listing a summary of billings incurred during the reporting period, while his colleague Edward T. McDermott provides Niagara Falls with a bottom line total.  Similarly, while the Integrity Commissioner may identify the number of files they worked on during the reporting period, McDermott’s annual reports merely indicate that he “undertook a number of matters within my jurisdiction and mandate”. None of the municipalities have these annual reports posted on their Accountability and Transparency pages.

One thing is certain, Niagara Falls has incurred much more expenses than the other three municipalities for Code of Conduct complaints. Edward T. McDermott’s annual reports to Niagara Falls Council outline the following billings:

April 9, 2019 - April 8, 2020 reporting period = $25,462.50* 

April 9, 2020 - April 8, 2021 reporting period = $79,437.51

April 9, 2021 - April 8, 2022 reporting period = $97,595.00

April 9, 2022 - April 8, 2023 reporting period = $60,790.00

*The City also incurred $55,104 from Aird & Berlis for an investigation billed in July 2019. All figures do not include HST.

In comparison, the Niagara Region only incurred $20,642.28 in billings during their most recent reporting period (August 17, 2022 to August 16, 2023), despite having a Council of 32 members, compared to 9 in Niagara Falls. St. Catharines staff reported to their Council that the municipality had Integrity Commissioner expenses of approximately $13,000 in 2022 and $17,000 in 2023.  

It is hard to say if there is enough information on the municipal websites for Councillor Lococo to make another argument to her Council colleagues. As of this writing, she had not received the report promised to her but even if such a report exists, she would likely be met with the same response she received from Mayor Jim Diodati at the last Council meeting:

“We don’t care what other municipalities do.”

Email: [email protected]

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