Item - 2024.EA6.4

The Compliance Audit Committee:

Has decided not to commence legal proceedings against Simon Tran.

1. The Compliance Audit Committee met on February 28, 2024, to hear Item EA6.4 – Simon Tran - A Contributor in the 2022 Municipal Election 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(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.

4. The report dated February 13, 2024, from the City Clerk identified Simon Tran 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 Simon Tran to have contributed $1,236.46.

5. 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 Simon Tran.

6. The contributor did not appear but did provide written comments. However, Matthew Cook appeared and spoke to the matter. The contributor in their written submission explained that the alleged overage that caused the contravention of the contribution limit was due to an external electronic processing fee that the contributor chose to pay.

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

8. There was a contravention of the contribution limit because the individual made a contribution of $1,236.46 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.

9. 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.

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 Simon Tran - 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 EA6.4 - Simon Tran - 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 Simon Tran 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.