Item - 2024.EA6.5

The Compliance Audit Committee:

Has decided not to commence a legal proceeding against Sol Orwell.

1. The Compliance Audit Committee met on February 28, 2024, to hear Item EA6.5 – Sol Orwell - 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(4) of the Municipal Elections Act, 1996 states that the maximum total contribution that a contributor may make to multiple candidates for the office of Councillor in the City of Toronto is $5,000.

4. The report dated February 13, 2024, from the City Clerk identified Sol Orwell as a contributor that appeared to have exceeded the $5,000 contribution limit to the election campaigns of Alejandra Bravo, Norm Di Pasquale, Ausma Malik, Chris Moise, Amber Morley, Evan Sambasivam, Dianne Saxe, Sheena Sharp. The report from the City Clerk identified Sol Orwell to have contributed $7,239.32.

5. The auditor, BDO Canada LLP, explained their February 12, 2024 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 Sol Orwell.  

6. The contributor attended the meeting online via the web portal and provided written information to the Committee. The contributor explained that the over contributions that caused the contravention of the contribution limit was due to human error. He explained that his assistant recorded the contributions and did not notice the warning about the contribution limits displayed on the Candidates’ websites.

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

8. There was an apparent contravention of the contribution limit because the contributor made contributions of $7,239.32 which exceeded the applicable limit of $5,000 per s.88.9(4) of the Municipal Elections Act, 1996.

9. The explanation provided by the contributor demonstrates carelessness. Indeed, the contributor acknowledges that these circumstances were not acceptable and the contributor accepted responsibility for failing to comply with the legislation. 

10. After considering the entirety of the circumstances, the Committee has discretion to determine whether to commence a proceeding even in circumstances where there are reasonable grounds that a breach has occurred. This has been recognized by the courts in Lancaster v. Compliance Audit Committee et al., 2012 ONSC 5629. In that case, after consideration of the evidence provided, the Committee concluded that there were breaches of the Act but exercised discretion not to proceed.

11. The basis of the contribution limits contained in the Municipal Elections Act, 1996 is to ensure fairness and a level playing field between candidates and participants in the electoral process. Consequently, breaches of this nature cannot be taken lightly, and the apparent contravention exceeds any concept of a breach that would be considered "de minimus". Nonetheless, the Committee has considered the explanation provided by the contributor and carefully weighed the factors that would determine whether or not commencing a proceeding would be in the public interest. Based on the evidence provided, it is not in the public interest to commence a proceeding against the contributor.

12. In the Committee's view, the responsibility rests with the contributor to monitor the contribution limits. The contributor was provided with information on the Candidates’ websites outlining the contribution limits. The Contributor has ultimate responsibility over their employees and agents and in the future should endeavor to supervise and monitor these actions in serious matters such as elections.

Peter Hearn, BDO Canada LLP gave a presentation on Sol Orwell - 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 EA6.5 - Sol Orwell - 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 Sol Orwell 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.