Item - 2024.EA11.5

The Compliance Audit Committee: 
  
Has decided not to commence legal proceedings against David Green and David Y Green. 
 
1. The Compliance Audit Committee met on September 25, 2024, to hear Item EA11.5 – David Green and David Y Green - A contributor in the 2023 By-Election for Mayor who appears to have Contravened Contribution Limits under Section 88.9 of the Municipal Elections Act, 1996. 
  
2. Section 88.34(2) of the Municipal Elections Act, 1996 requires the City Clerk to prepare a report identifying each contributor to a candidate for office on a council who appears to have contravened any of the contribution limits under Section 88.9. 
  
3. Section 88.9(4) of the Municipal Elections Act, 1996 states that the maximum total contribution that a contributor may make to multiple candidates for office on the same council or local board is $5,000. 
  
4. The report dated September 10, 2024, from the City Clerk identified David Green and David Y Green (the “Contributor”) as a contributor that appeared to have exceeded the $5,000 contribution limit to the election campaign of Ana Bailao, Josh Matlow, and Olivia Chow. Specifically, the report (September 10, 2024) from the City Clerk identified three contributions of $2,500, from individuals with similar names - David Green and David Y Green – and with the same address. Accordingly, it appeared that a contributor had made a donation of $7,500 to the election campaign of Ana Bailao, Josh Matlow, and Olivia Chow. 
  
5. The auditor, BDO Canada LLP, explained their report, attached as Attachment 1 to the report (September 10, 2024) from the City Clerk, setting out the audit process and the findings with respect to David Green and David Y Green. 
  
6. The contributor, David Green and David Y Green, did not appear in person. The agent, Jeffrey Kroeker, appeared for the Contributor and provided oral submission to the Committee. It has been confirmed that David Green and David Y Green are the same individual. Mr. Green’s agent explained that the alleged overage that caused the contravention of the contribution limit was due to the Contributor being unaware of the aggregate contribution limit of $5,000.  
 
7. For the reasons stated below, the Compliance Audit Committee has decided not to commence a legal proceeding against single contributor David Green (and David Y Green) for the contravention of Section 88.9 of the Municipal Elections Act, 1996. 
  
8. The Committee is not bound to commence proceedings in the face of a breach or contravention of the Municipal Elections Act, 1996. The Committee is entitled to consider all of the circumstances to determine whether legal proceedings should be commenced. This has been recognized by the courts in Lancaster v. Compliance Audit Committee et al., 2012 ONSC 5629.    
 
9. In accordance with s. 88.22(1)(r)(ii) of the Municipal Elections Act, 1996, it is the candidate’s obligation to ensure that each contributor is informed of the total maximum of $5,000. In the Committee's view, the responsibility rests with the candidate(s) to fully understand their legal obligations with respect to the receipt of contributions and contribution limits. When a candidate chooses to seek office, they accept that they must understand and comply with the rules including campaign finance rules. A candidate should seek professional or legal advice in order to ensure that they meet their obligations in the Municipal Elections Act, 1996.  
 
10. Consequently, the Committee has determined it is not in the public interest to commence a proceeding against the Contributor. 

Peter Hearn, BDO Canada LLP gave a presentation on David Green and David Y Green - A Contributor in the 2023 By-Election for Mayor Who Appears to Have Contravened Contribution Limits under Section 88.9 of the Municipal Elections Act, 1996.

The Compliance Audit Committee recessed its public session to meet in closed session to deliberate in private on Item EA11.5 - David Green and David Y Green - A Contributor in the 2023 By-Election for Mayor Who Appears to Have Contravened Contribution Limits under Section 88.9 of the Municipal Elections Act, 1996 and to receive advice that is subject to solicitor-client privilege.

The Municipal Elections Act, 1996 requires the City Clerk to review all contributions reported in financial statements submitted by candidates and registered third party advertisers in the 2023 by-election for mayor and to prepare a separate report for each contributor who appears to have exceeded any of the contribution limits.

The City Clerk retained an external auditor, BDO Canada LLP, through a competitive procurement process, to review all candidates and registered third party advertisers' financial statements and to report on each apparent over-contribution.

This report transmits a report from the external auditor to the Compliance Audit Committee for consideration. The external auditor completed its review of initial and supplementary financial statements filed for the 2023 by-election for mayor and identified David Green and David Y Green as having a similar name at the same address. If they are the same contributor, they appear to have exceeded the contribution limits in the Municipal Elections Act, 1996.

Within 30 days of receiving this report, the Compliance Audit Committee is required to decide whether to: (1) commence legal proceedings against the contributor for an apparent contravention; or (2) not to commence legal proceedings against the contributor. The Committee must also provide brief written reasons for its decision.