Item - 2024.EA6.3

The Compliance Audit Committee:

Has decided not to commence legal proceedings against Janet Swim.

1. As a preliminary matter, the Compliance Audit Committee considered the request and approved the request to redact personal information of the contributor Janet Swim contained in the contributor’s written submission.

2. The Committee has a strong interest in ensuring that hearings are open to the public. However, the principle of open hearings must be balanced with the competing interest of protecting privacy and security of any person. In this matter, removal of the information in the final paragraph of the contributor’s submissions protects the contributor’s personal information and causes no prejudice to the public.

3. In accordance with section 9 of the Statutory Powers Procedure Act the Committee has determined that the final paragraph of the contributor’s written submission be redacted from any hearing document and kept confidential.

4. The Compliance Audit Committee met on February 28, 2024, to hear Item EA6.3 – Janet Swim - A Contributor in the 2022 Municipal Election who appears to have Contravened Contribution Limits under Section 88.9 of the Municipal Elections Act, 1996.

5. 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.

6. Section 88.9(1) of the Municipal Elections Act, 1996 states that the maximum total contribution that a contributor may make to a candidate for the office of Councillor in the City of Toronto is $1,200.

7. The report dated February 13, 2024, from the City Clerk identified Janet Swim as a contributor that appeared to have exceeded the $1,200 contribution limit to the election campaign of Amber Morley. The report (February 13, 2024) from the City Clerk identified Janet Swim to have contributed $1,236.15.

8. The auditor, BDO Canada LLP, explained their report, attached as Attachment 1 to the report (February 13, 2024) from the City Clerk, setting out the audit process and the findings with respect to Janet Swim.

9. The contributor, Janet Swim, appeared in-person and provided information to the Committee. The contributor explained that the alleged overage that caused the contravention of the contribution limit was due to an external electronic processing fee on the candidate's donation website. 

10. For the reasons stated below, the Compliance Audit Committee has decided not to commence a legal proceeding against contributor Janet Swim for the contravention of Section 88.9 of the Municipal Elections Act, 1996.

11. There was a contravention of the contribution limit because the contributor made a contribution of $1,236.15 which exceeded the applicable limit of $1,200 due to a processing fee and appears to have been made inadvertently due to an external electronic processing fee that was included in the total contribution. The contributor, from their submission, appears to be remorseful.

12. The Committee is also aware of the absurdity or "de minimus" principle recognized by the Court (for example: Ontario v. Canadian Pacific Ltd., [1995] 2 SCR 1031). In short, it is the view of the Committee that the legislature did not intend to attach penal consequences to extremely minor breaches, done inadvertently, and that doing so would be inflexibly severe.

13. 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 Janet Swim - A contributor in the 2022 Municipal Election 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 EA6.3 - Janet Swim - A contributor in the 2022 Municipal Election 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.

This report transmits the external auditor's report for consideration. The external auditor completed its review of initial and supplementary financial statements filed for the 2022 municipal election and identified Janet Swim as a contributor who appears 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 for an apparent contravention. The Committee must also provide brief written reasons for its decision.

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 2022 municipal election 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.