Hamilton’s integrity commissioner is being taken to court by the chair of the local LGBTQ2 advisory committee.
Cameron Kroetsch has filed an application for a judicial review of the commissioner, saying that he was denied procedural fairness during an investigation that culminated in Hamilton city council issuing a formal reprimand against him.
The application asserts that the integrity commissioner “acted without jurisdiction” in investigating Kroetsch as a citizen volunteer on a local board, and also denied Kroetsch “procedural fairness and natural justice” by failing to consider his submissions in the investigation and subsequent report.
When council issued the formal reprimand during the Sept. 30 meeting, it cited a “breach of privacy” as the reason behind it.
The report from the commissioner claimed Kroetsch ignored advice from the city clerk and posted to Twitter a motion that identified a (now ex-) city employee with alleged ties to white supremacy, as well as a new appointee to the police services board.
However, Kroetsch said his tweet didn’t actually name anyone — and also pointed out that the unredacted version of the motion had been posted on the city’s website for more than a year.
Despite that, he said the judicial review won’t be looking at whether or not there was a privacy breach, but will instead look at the investigation and process as a whole.
“They’re going to be looking at the whole thing and saying to themselves, was the procedure itself fair? Was the process by which the integrity commissioner made its decision a fair process? And then it’ll look at broadly … should the integrity commissioner even be allowed to engage in these kinds of investigations against volunteers?”
During Wednesday’s city council meeting, councillors had been prepared to debate a motion from Ward 3 Coun. Nrinder Nann about potentially retracting the reprimand.
“In light of new information all of council received after our September 30th council decision to formally reprimand a citizen volunteer, I no longer feel confident a reprimand was required,” said Nann.
“It’s quite mindboggling to me that the city’s website had had a fully unredacted version of the document — with names included — of individuals online and publicly available during the investigation of a citizen volunteer, which was the basis of the reprimand.”
That motion was ultimately deferred until after the judicial review is complete, with several councillors expressing concern that taking action on the reprimand would jeopardize the review process.
Part of that concern stemmed from the fact that the city is responsible for paying for and mounting the defence of the integrity commissioner during the judicial review.
Ward 9’s Brad Clark said councillors have been placed in a “box” regarding being able to act without interfering with the judicial review.
“Surely people can see this. Surely they can see that we are being put in the middle of a quagmire — a legal quagmire — if we proceed with the reconsideration based on the current laws under the Municipal Act and our obligation to defend the integrity commissioner at the judicial review.”
While city solicitor Nicole Auty acknowledged that it would be possible to debate reconsidering the reprimand without interfering in the process, she said councillors would need to be “sensitive” regarding the comments they make.
Kroetsch said he intends to file for a second judicial review of Hamilton city council itself for its decision to issue the reprimand, as well as its decision to receive the integrity commissioner’s report.
“I’d hoped that the City of Hamilton would have taken the opportunity today to reverse those decisions it had made and take the high road,” Kroetsch said on Wednesday. “And it chose not to.”
It’s unclear how long the judicial review process will take, according to Kroetsch’s lawyer.
“Unfortunately, it is difficult to predict how long (the) court process will take to play out, but certainly months rather than weeks,” said Nick Papageorge of Ross & McBride LLP.
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