By Pepper Parr
April 17th, 2023
BURLINGTON, ON
This report is excerpted from a report prepared by the Integrity Commissioner and sent to City Council. Thew fill report is available on the city website. There is the potential for considerable debate at Council on Tuesday
The perception that a community’s elected representatives are operating with integrity is the glue which sustains local democracy. We live in a time when citizens are skeptical of their elected representatives at all levels. The overarching objective in appointing an integrity commissioner is to ensure the existence of robust and effective policies, procedures, and mechanisms that enhance the citizen’s perception that their Council and local boards meet established ethical standards and where they do not, there exists a review mechanism that serves the public interest.
The City of Burlington Integrity Commissioner released the following report earlier in April related to a complaint that had been made from a resident about how her application to the Committee of Adjustment (CoA) was managed.
The application was approved at the CoA by a vote of 3-2
The Municipal Act requires that municipalities adopt a code of conduct for members of local boards, and appoint an integrity commissioner responsible for overseeing the application of the code of conduct for local board members.
Integrity commissioners carry out a range of functions for municipalities (and their local boards). They assist in the development of the ethical framework, for example by suggesting content or commentary for codes of conduct. One of the most important functions is the provision of advice and guidance to members to help sort out ethical grey areas or to confirm activities that support compliance. And finally, but not principally, they investigate allegations that a person has fallen short of compliance with the municipality’s ethical framework and where appropriate they submit public reports on their findings, and make recommendations, including recommending sanctions, that council for the municipality may consider imposing in giving consideration to that report.
Our operating philosophy dictates the format of this report. The tenets of procedural fairness require us to provide reasons for our conclusions and recommendations, and we have done that.
In this regard, we have assessed the information fairly, in an independent and neutral manner, and have provided an opportunity to the respondent named in this Report to respond to the allegations in the complaint, and to review and provide comment on tour preliminary findings report.
The Complaint
On December 22, 2022 we received a complaint from an applicant to the CoA in regard to the conduct of member Leblovic at the hearing of her application for minor variance held on December 7, 2022.
The complaint asserted that member Leblovic made statements at the CoA hearing that were unfounded and false, and risked influencing the outcome of the hearing on the application. In her view, the member had engaged in malicious gossip almost derailing a long and costly minor variance process, which no member of an adjudicative tribunal should be allowed to do.
It was alleged that the member’s conduct breached the Code of Conduct for Local Boards.
Notifying the Respondent on December 29, 2022 of the complaint against him, and providing adequate disclosure of the information we possessed so that he could prepare his response
After initial resistance to the process, wherein the Respondent raised preliminary concerns questioning the complainant’s motives, asserting reputational damage, and challenging our jurisdiction and process, we extended time for, and ultimately received, the Respondent’s response to the complaint in a 13-page response.
Diane and Nickolas Leblovic with Mayor Meed Ward and her husband.
The Respondent Nicholas Leblovic is a member of the City of Burlington C/A and on the C/A for another Township where he owns another property, and has served as such for eight (8) years. He is a lawyer with over 40 years’ experience, retired from practice at a large law firm.
The Complainant is the owner of a century home in downtown Burlington which she has owned and lived in for 42 years.
This is the story of a long-time resident, now living alone, seeking to turn her detached garage into a secondary suite in the back yard of her large home, and a tribunal member trying to block her because, according to an unidentified neighbour who is friends with the member, she has been illegally renting out a basement apartment for years – a fact she vehemently denies.
The tribunal member, as a lawyer himself, has criticized our investigation as lacking jurisdiction because in his view we are presuming to review the conduct of an adjudicative body’s hearing. We agree that it is beyond the jurisdiction of an Integrity Commissioner to review the hearing process of the Committee of Adjustment.
However, it is well-established that the conduct of members of local boards, the Committee of Adjustment included, falls squarely within the jurisdiction of the municipal Integrity Commissioner to review.
The member claims that we have improperly embarked on a review of the procedure at the hearing – something which can only be reviewed by appealing the decision. The focus of our investigation, and findings, is solely the ethical propriety of the member’s own conduct.
In October 2021, the homeowner retained a planning consultant firm to assist her with navigating the process for obtaining the necessary permissions to construct an accessory dwelling unit; the project required 7 minor variances, regarding which staff of the City of Burlington had no objection.
On January 13, 2022 the Complainant filed an application to the CoA for the minor variance to allow the conversion of a detached garage to a secondary dwelling unit.
On December 7, 2022 the application for minor variance was before the CoA for hearing.
The Staff Report from planning staff supported the application.
Nobody appeared in opposition to the application.
The homeowner was not present at the CoA and was represented by her planning consultant.
Although the Heritage Impact Study was not included in the Application Package before the CoA, member Leblovic produced it at the hearing in order to ask the planning consultant questions.
The member proceeded to ask questions of the homeowner’s planning consultant, focused on what he perceived as inconsistent descriptions in the Heritage Impact Study about the interior finishes in the basement of the home – in particular, what he perceived as conflicting information about the presence of a bathroom and a bedroom in the basement – revealing, in his view, the existence of a rental suite.
It should be noted that, although the complainant’s home does not include a secondary suite or basement apartment, we understand that a secondary suite would be permitted as-of-right, should she have desired one.
Member Leblovic made a statement asserting the existence of an undocumented rental unit in the basement, claiming that the neighbours all knew about it.
The member’s comments at the hearing are reflected in the Minutes as follows:
N. Leblovic did not support the application; noted for the following reasons: did not believe the Owner/Agent were being entirely truthful regarding the use of the existing home and had knowledge from other community members as well as the Heritage Impact Study that the home had been previously renovated to include a basement living space which was not reflected in the site plans presented and that non-family members had lived in the house; believed some of the information provided by the applicant was questionable; these concerns prevented the member from supporting the application as presented and believed that perhaps a deferral might be an option to allow the agent to go back and work with the Owner to provide additional information regarding the current use of the property; from a legal perspective, could not support the application.
The next member who spoke reminded members that the CoA must confine itself to consideration of the application based on the merits and the evidence before the Committee. This is reflected in the Minutes, as follows:
…the Committee must evaluate an application based on the merits of the application before the Committee; noted that the application itself became a sworn affidavit when submitted for review; there were no members of the public in opposition to the proposal nor were written comments provided as a result of the public notice; how the Owner utilizes their property was not the purview of the Committee and if there were enforcement concerns there were more appropriate City departments to handle those matters;
Subsequently, the Chair also chastised member Leblovic for his statement, noting that enforcement concerns were not the purview of the Committee; there were other City departments in place to handle enforcement issues; and that the applicant presented good planning rationale for the proposed development.
One other member of the CoA adopted the position and the rationale articulated by member Leblovic.
In the end, the CoA Decision to grant the minor variance was reached on a 3-2 split.
In the days that followed, the complainant raised her concern with the Secretary- Treasurer about the conduct of the member and the unfounded statements which very nearly resulted in a refusal of her application.
The Secretary-Treasurer advised that the Integrity Commissioner was the proper party to consider her concerns.
Member Leblovic’s statement made during the hearing regarding his belief that there was already an existing rental unit at the home, was improper for 3 reasons:
As it was based on what the neighbours apparently had told him, it amounted to nothing more than hearsay, and was not admissible as evidence;
Even if true, it was not a relevant consideration for the C/A; and
Even if relevant, the member was attempting to introduce evidence at the hearing, which was improper given his role as a member of the tribunal adjudicating the hearing.
Had legal counsel for the owner been present at the hearing, the statements by the member would likely have provoked a swift response.
The applicant’s planning consultant, who was present at the hearing, was blind- sided by the line of questioning and attempted to navigate the unexpected tangent.
Having not attended at the home of her client, the planning consultant was at a loss to explain what member Leblovic perceived as inconsistencies in the Heritage Impact Study.
Nevertheless, when the member produced it unexpectedly at the CoA hearing, the planning consultant simply advised that she was unaware of the existing interior improvements of the owner’s basement, but that to the best of her knowledge the owner lived alone in the home.
During our investigation, the member provided the following explanation around the unfolding of events at the CoA as follows:
Also… provided was a draft Heritage Impact Assessment dated May 22, 2022, prepared by Robinson Heritage Consulting relating to the house and garage on the Property. …
In reviewing this documentation, I noted a major inconsistency relating to the basement of the house. The Heritage Impact Assessment at pages 28 to 32 had a brief description of each room in the House and contains the following statement at page 32:
“The basement is finished and is large and bright with laundry, bath, bedroom and family room with walkout to the rear yard.”
However, the Site Plan of the basement area of the house (at page 92 of the Staff Report) showed existing space labelled as laundry room, mechanical room, unexcavated and existing basement with no existing space identified as a bath, bedroom or family room.
At the hearing, the Complainant was represented by XX. In my questioning of XX I asked her to reconcile this inconsistency.
…[the planning consultant was unable to explain the inconsistency, in that she had not attended the property to observe the basement layout, and she understood that her client lived alone in the home.]
When it was the time for Committee members to reach a decision on the application, I made comments to the following effect:
• I did not accept the testimony of [the planning consultant] as being credible on the issue of the additional dwelling unit in the basement as it was inconsistent with both the clear wording of the Heritage Impact Study as well as the prior information that I had obtained from my friends noted in the fourth paragraph of this letter.
• The potential existence of an additional dwelling unit in the basement of the house was in my mind extremely material to the application as it raised the prospect of their being three not two separate dwelling units in the house and garage. This in turn would
increase the potential number of people who could live in the house and renovated garage.
• This would result in potential for material compatibility and nuisance issues with the neighbourhood, which was entirely comprised of single-family dwellings, the likelihood of overcrowding of the limited on-site parking space and the possibility for future use of the house as a rental or short-term rental facility.
When the planning consultant would not agree with the member’s suggestion that there was a rental unit in the basement, he stated that he was ‘questioning the integrity of the application and the integrity of the planners’.
The planning consultant was shocked, upset and taken aback. All the while, her supervising partner was watching the virtual meeting electronically.
Planners are subject to a Professional Code of Practice and Standards of Practice; ethics and integrity are cornerstones of their professional reputation.
Questioning the integrity of a professional planner goes to the core of their professional reputation. The member, in openly questioning the planning consultant’s integrity during the hearing, was impugning her professional ethics.
From an evidentiary perspective, it is apparent that the finished basement contains no kitchen, which would be crucial in determining whether a basement rental apartment existed – were that a relevant consideration before the C/A. This underscores the problem of introducing hearsay conclusions in the course of a hearing held for other purposes, and which was supported by ample professional evidence tendered by both the applicant and City staff.
Irrelevant Considerations
Even if the information had been introduced by an objector to the application, it is well-established that non-compliance with existing regulatory requirements is not a relevant consideration on an application for minor variance at the C/A.
Alleged illegal or non-compliant use of property can only be pursued through enforcement action because:
withholding a minor variance because of alleged zoning violations constitutes an error of law; and enforcement action provides the property owner with due process and ensures a full and fair opportunity to defend against unfounded allegations.
Though not the case here, existing non-compliance – with zoning or building requirements – is often the motivation for making minor variance applications to the C/A.
Concerns about existing non-compliance are simply irrelevant to the CoA’s considerations.
Similarly, speculation about the possibility that the minor variance may open the door to a future illegal use is equally irrelevant.
As noted above, the Chair and at least one other member of the CoA were at pains to correct member Leblovic as to the irrelevance of the alleged existence of a second dwelling unit.
Improper for Tribunal Member to introduce own evidence
It is important that members appointed to adjudicative bodies understand the nature of their role.
Misunderstanding their jurisdiction or the need for procedural fairness may cause a tribunal to exceed its jurisdiction or otherwise err in law in arriving at a decision, leading to unnecessary and time-consuming appeals to the Land Appeals Tribunal or the courts.
In the complainant’s application hearing, despite attempts by another member and by the Chair to correctly guide the CoA away from irrelevant and erroneous considerations, the member’s strong and authoritative assertions influenced another member to take into consideration irrelevant and possibly erroneous statements, improperly introduced.
Even if the member had personal knowledge of the existence of a second dwelling unit in the home (which he admits he does not have), tribunal members – like judges – must make their decisions based on the application of the law to the facts presented at the hearing or trial.
A tribunal member cannot introduce their own evidence, or supplement the evidence before them with anecdotal information drawn from their own sources.4
The bald unchallenged assertion made by the member abrogated the procedural fairness of the CoA hearing and risked tainting the decision, as underscored by the narrow margin on the vote, which might have resulted in an unnecessary, time- consuming and costly appeal for both the applicant and the City.
We find that the conduct of the member on this occasion undermined public confidence in the adjudicative body.
It is important that misunderstandings – about jurisdiction, procedural fairness and appreciating what are the relevant considerations – be corrected, especially since an erroneous or misguided approach by a single member may influence the thinking of other members. Ultimately, these may lead to undermining the public’s confidence in the process.
Members of adjudicative local boards are not expected to possess legal expertise, and indeed, the Chair and staff play an important role in guiding the committee to staying focused on relevant considerations and ensure procedural fairness.
There are also opportunities for municipalities to ensure that their local boards, including adjudicative committees, receive training from the Integrity Commissioner, the Ontario Association of Committees of Adjustment, and from staff.
Impugning reputation of planning consultant
When the planning consultant would not agree with the member that there was a basement rental unit in the home, the member stated that he was ‘questioning the integrity of the application and the integrity of the planners’.
The member thereby cast doubt on the information properly before the CoA and cast a shadow over the planning consultant’s honesty and integrity.
Although there is no specific provision under the City of Burlington’s Local Board Code of Conduct which addresses impugning the professional ethics and integrity of others – whether members of the local board, staff or others – it should be recognized as inappropriate and contrary to a standard which requires Members to act with honesty and integrity, serving in a diligent manner, and performing their duties in a manner which promotes public confidence.
Challenging the truthfulness of a professional, without a rationale basis, is tantamount to calling them a liar.
Burlington Council’s own Code of Good Governance states the following which, although in regard to social media (Rule 13), nevertheless provides good guidance:
We will ensure that commenters are respectful, and do not impugn the motives, integrity, or competence of our Council colleagues, other members of the public, or staff.
We find that the conduct of the member in impugning the integrity of the planning consultant was inappropriate, and constituted behaviour which did not promote public confidence.
When the complainant raised her concern with the Secretary-Treasurer in the days that followed, it was explained to her that there was nothing the staff or the City could do and her only recourse was a complaint to the Integrity Commissioner.
The member has expressed to us his concern that the complainant’s inquiries to the Secretary-Treasurer’s office have damaged his reputation.
While a member may regard any complaint about his conduct as concerning, and the scrutiny of a member’s conduct may bring unwanted attention to short-comings, persons feeling aggrieved by a member’s conduct should not be deterred from legitimate complaint by the fear of an accusation of ‘damaging the reputation’ of a respondent.
Certainly there was nothing inappropriate for the complainant to speak with the Secretary-Treasurer; the complainant pursued the only recourse available.
Member’s Response to Complaint and Findings
Rather than acknowledge room for improvement on his part, the member has dug in, justifying his actions and attacking the investigator, engaging in ad hominem attacks on the Integrity Commissioner alleging bias, incompetence, arrogance, negligence, lack of diligence, legal errors, ignorance of the law and practice, and a lack of jurisdiction and procedural fairness.
This sometimes happens in Integrity Commissioner investigations – the respondent takes a legalistic or adversarial approach. Care should be taken to recognize that an Integrity Commissioner’s goal in investigating a complaint is aimed at upholding the expectations set by Council for its appointees.
It cannot be the case that members of adjudicative local boards are at liberty to engage in inappropriate, unfair or otherwise improper conduct with impunity.
While ultimately, removal of the member by Council is a possible remedy, any member might rightly demand the procedural fairness of an investigation before being removed. This is the function which the Integrity Commissioner provides.
The member has asserted that there can be no finding he contravened the principles of the Code of Conduct, because in his opinion the guiding principles are unenforceable.
We believe that the better approach is to embrace the Code of Conduct as a policy statement adopted by council, and to understand that the underlying guiding principles, as well as the specific stipulations in each provision, are indeed capable of articulating enforceable standards and expectations unless specifically excluded.
Especially where the goal is public confidence, and where Guiding Principles underly and support the standard of conduct expected, it cannot be the case that a violation of the Guiding Principles is incapable of forming the basis of a finding that the member has failed to meet the standard expected.
This view would be completely inconsistent with the purpose and objectives of providing a framework to ensure members conduct themselves with the highest standards of integrity in a manner that withstands public scrutiny.
Conduct or behaviour which contravenes and undermines the Guiding Principles should not be ignored or condoned, simply because there is not a specific provision of the Code which prohibits it.
Afterall, there are any number of matters not articulated in provisions of a Code – for example one would not find specific provisions prohibiting lying while carrying out their public role, yet no one would argue that this could not sustain a complaint under the Code.
Nicholas Leblovic was Chair of a Waterfront Advisory Committee that was sunset by the city in 2012.
We find that the conduct of the member on the occasion in question – engaging in hearsay on matters irrelevant to the Committee of Adjustment’s proper considerations, and purporting to introduce evidence in the course of a hearing – undermined public confidence in the adjudicative body, in breach of the Guiding Principles of the Code of Conduct applicable to him.
We also find that impugning the integrity of the planning consultant, which was tantamount to calling her a liar, was inappropriate and a breach of the Guiding Principles.
An Integrity Commissioner may recommend that sanctions be imposed, including a reprimand, or a suspension of pay for up to 90-days.
Members of the Committee of Adjustment receive a nominal per diem, however, we are of the view that a sanction which included suspension of a per diem would be of little consequence.
The complainant sought the member’s removal from the Committee of Adjustment, and that he not be appointed to serve on any other City committee.
There is no doubt the member has the ability to offer legal expertise to the Committee of Adjustment, however his defensiveness to criticism and refusal to acknowledge room for improvement, does not lend itself to course correction.
Despite this, it must be recognized that a similar situation is unlikely to be repeated, and if it were, we are optimistic that the member would be more circumspect in his conduct .
As a member of the Committee of Adjustment, member Leblovic holds a privileged position. He should embrace the opportunity to serve in that capacity with courtesy, and a modicum of humility.
We would also hope that the member would publicly concede second thoughts for his conduct.
We believe that the complaint investigation may be sufficient to remind him to refrain from contributing gossip (or giving credence to it) during the adjudication of hearings, and to treat those who appear before the board – whether staff or others – with professionalism and respect.
As such, in contrast to the complainant’s position, we are not recommending his removal as an appointed member to the CoA.
Rather, as is commonly the case for municipal local boards, we recommend that all members of local boards for the City of Burlington be required to participate in training to be conducted by the Integrity Commissioner, to ensure an understanding of expectations for their role set by the Code of Conduct and the MCIA.
Accordingly, it is recommended:
That Council direct staff to make arrangements for the conduct of training to be conducted by the Integrity Commissioner on the ethical framework applicable to local board members.
By Staff
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