Item - 2024.EA12.5

The Compliance Audit Committee: 
  
Has decided not to commence legal proceedings against Geoff Smith and Geoffrey Smith. 
 
1. The Compliance Audit Committee (the “Committee”) met on October 7, 2024, to hear Item EA12.5 – Geoff Smith and Geoffrey Smith – 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 Geoff Smith and Geoffrey Smith (the “Contributor(s)”) as a contributor that appeared to have exceeded the $5,000 contribution limit to the election campaigns of Brad Bradford, Mark Saunders, and Ana Bailao (the “Candidate(s)”). Specifically, the report (September 10, 2024) from the City Clerk identified one contribution of $2,500, one contribution of $1,500, and one contribution of $2,059.99 from individuals with similar names – Geoff Smith and Geoffrey Smith – and with the same address. Accordingly, it appeared that a contributor or contributors had made a donation of $6,059.99 to the election campaign of the Candidates. 
  
5. The auditor, BDO Canada LLP, explained in 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 Geoff Smith and Geoffrey Smith. 
  
6. Neither the Contributor(s) nor the Candidate(s) attended. No written submissions were provided. The failure of the Contributor(s) to provide information to the Committee and the nature of the alleged breach raises concerns. The participation of the Contributor(s) or Candidate(s) in this proceeding would have been very helpful to the process and would have assisted in ensuring transparency and openness in understanding the circumstances of the apparent contravention. Indeed, the Contributor(s) could have provided answers to questions raised by the Committee.   
  
7. For the reasons stated below, the Compliance Audit Committee has decided not to commence a legal proceeding against contributor(s) Geoff Smith and Geoffrey Smith for the contravention of Section 88.9 of the Municipal Elections Act, 1996. 
  
8. The Committee is of the view that there is a lack of information to support that the individuals – Geoff Smith and Geoffrey Smith – are the same person. Therefore, there is insufficient evidence to support that there was a contravention of the contribution limit of $5,000 per candidate. 
 
9. 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.    
 
10. 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.  
 
11. Consequently, the Committee has determined it is not in the public interest to commence a proceeding against the Contributor(s). 

Peter Hearn, BDO Canada LLP gave a presentation on Geoff Smith and Geoffrey Smith - 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 EA12.5 - Geoff Smith and Geoffrey Smith - 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 Geoff Smith and Geoffrey Smith 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.