With what could be the final act of Rob Ford's conflict of interest drama set to play out in a courtroom next month, his lawyer has formally submitted the argument that he hopes will convince a panel of three judges to allow the mayor to stay in office.
In a 26-page factum (below) filed with the divisional court on Wednesday, attorney Alan Lenczner presents a case that is largely unchanged from the argument already rejected by Justice Charles Hackland, who in a stunning judgment last month ordered Ford ousted for violating the Municipal Conflict of Interest Act.
Lenczner must convince the court that Hackland erred by finding that Ford violated the act when the mayor voted at a February council meeting to exempt himself from having to reimburse lobbyists from whom he improperly solicited donations to his football charity.
The factum makes four separate arguments. The first is that under the City of Toronto Act council never had the authority to order Ford to pay back the lobbyists. As such, the council resolution ordering him to return the funds was a "nullity," and Ford should face no consequences for voting against it.
Secondly, Lenczner maintains that because Ford's initial transgression (soliciting the donations) fell under the jurisdiction of the City of Toronto Act, it can't trigger penalties under the Municipal Conflict of Interest Act, a separate piece of legislation.
The factum also reiterates that the amount of money involved, $3,150, was too small to influence Ford's conduct, and finally, that his decision to vote on the council resolution was an "error of judgment" because the mayor was unaware that it could be against the law.
In the factum's conclusion, Lenczner writes that the four submissions prove Hackland made "errors of law" that must result in the reversal of his judgment.
By interpreting the conflict of interest law broadly instead of seeking to uphold the "democratic decision of the voters who elected the Mayor... Hackland did the opposite of what the law demands," the document states.
But one conflict of interest expert is surprised that Lenczner continues to pursue the argument that council had no authority to compel Ford to pay back the money.
"I gotta say, I think he's completely out to lunch," said John Mascarin of the Toronto law firm Aird & Berlis LLP.
Mascarin has not yet read the factum but did review Ford's earlier defence documents and is familiar with the facts of the case. He believes Lenczner may be correct that council lacked the authority to bring forward the reimbursement motion, but by the letter of the law that isn't relevant.
"It just doesn't matter whether it was [lawfully] in front of council," he said. "The fact of the matter was, it was in front of council, Ford had a pecuniary interest, and therefore he just couldn't speak to it and couldn't vote on it."
Mascarin says that by taking the argument to the appeal hearing, Ford's lawyer will be asking the panel of judges to read meaning into the conflict law that isn't there.
"Maybe he feels he can convert the divisional court, but they're not supposed to write the law, they're just supposed to interpret and apply it," Mascarin said.
Speaking on background, another municipal law expert agreed that the nullity argument will be difficult to prove. Because Ford never challenged council's authority at the municipal level when the repayment issue first arose in 2010, it makes it much harder to do so at court at this late date in the proceedings, he said.
"I suspect that's an argument that the court is going to have a hard time with, if I could put it that way," the lawyer said.
Ford's appeal will be heard in divisional court on January 7. A final decision is expected weeks after that.