Port Authority vote 'unlawful'

Replacement of appointee called too hasty

JENNIFER LEWINGTON

From Tuesday's Globe and Mail

May 13, 2008 at 5:00 AM EDT

The Toronto Port Authority, often at odds with the city, is facing fresh controversy over the ouster of its former chairwoman.

The replacement of provincial Liberal appointee Michele McCarthy with Mark McQueen, a leading Toronto financier and a former aide in the Prime Minister's Office of Brian Mulroney, occurred with little public fanfare in March.

But it was done too hastily, according to a legal opinion prepared in response to a request by Christopher Henley, a TPA director and chairman of the port authority's corporate governance committee.

The April 7 letter, a copy of which was obtained by The Globe and Mail, concludes that Mr. McQueen's appointment "was unlawful" because the TPA needed two days notice to hold a vote to replace Ms. McCarthy, who remains a member of the authority's board.

Yesterday, responding by e-mail, Mr. McQueen confirmed that "one TPA board member sought a perspective from a law firm regarding the March, 2008 Chair election."

The board member, he added, "did not have the prior authorization of the TPA board to engage counsel or to spend money on behalf of the authority. ... I do not believe that the TPA board can consider legal work that was not duly solicited or engaged."

The letter from Davies Ward Phillips & Vineberg states the board can act at any time to remove the chairperson but must give notice to elect a replacement.

"Accordingly, the appointment of Mr. McQueen without the required notice was unlawful because it breached of the regulations and is therefore invalid," the letter reads. "In our view, the office of chairperson of the TPA is currently vacant."

Mr. McQueen said he was elected at a board meeting. Calls to Ms. McCarthy and other board members were not returned.

The reason for Ms. McCarthy's ouster remains unknown. The apparent internal divisions at the board come at a significant time for the city, locked in a long, bitter struggle with the money-losing port authority over its expanded Toronto City Centre Airport. The TPA is one of 19 port authorities created in 1998 by the federal government. Its main purpose and function is to operate the Port of Toronto, the island airport and the Outer Harbour Marina.

Under the Canada Marine Act, the city is permitted to appoint a non-politician representative to the TPA board but has declined to do so for several years.

But under amendments to the Marine Act, now awaiting second reading in the Senate, the federal government could move to fill the city vacancy.

A spokeswoman for federal Transport Minister Lawrence Cannon said the ministry "will consider filling the vacancy" when the bill is law. But, added Catherine Loubier, "first in the spirit of co-operation, he will ask the city to fill the position."

Councillor Adam Vaughan (Ward 20, Trinity-Spadina), who has sparred repeatedly with the port authority, said that "if the issue is use it or lose it in terms of a seat on the board, then it is perhaps time we appointed someone."