I would like to thank Mr. Adams for the opportunity to bring to his attention a section of the Toronto Port Authority Letters Patent that he may not be familiar with.  The code of conduct covered under The Letters Patent, Schedule E, Code of Conduct states:

1.2 Principles. This Code shall be interpreted in accordance with the following general principles:

(c) public confidence and trust in the integrity and impartiality of the Authority may be as equally compromised by the appearance of a conflict as by the existence of an actual conflict.

Curious as to whether or not the ethics commissioner took the Letters Patent into account in her findings, I wrote her office.

Mary Dawson

Conflict of Interest and

Ethics Commissioner

Dear Commissioner Dawson,

Would you please be so kind as to clear up a matter with regard to the process followed as described in The Watson Report in determining that Mr. Watson, as a member of the Board of Directors of the Toronto Port Authority (TPA) had no conflict of interest in voting on the matter of a new ferry?

The report cites that various sections of The Conflict of Interest Act were considered in taking on the case, examining the evidence and determining its outcome.  In addition, the report mentions the Letters Patent that established the Toronto Port Authority and the two Letters Patent amendments.  Indeed, the report also refers to the Board’s Code of Conduct.  I assume this is the code of conduct covered under The Letters Patent Schedule E Code of Conduct which reads in part:

1.2 Principles. This Code shall be interpreted in accordance with the following general principles:

(a) every director and officer shall discharge their official duties  and arrange their private affairs in such a manner as to  preserve and promote public confidence and trust in the integrity and impartiality of the Authority;

(b) the obligations of a director or officer described in subsection 1.2(a) may not always be discharged merely by acting in accordance with the technical requirements of the Act, the Regulations, the Letters Patent, the by-laws and the policies and resolutions of the Board; and

(c) public confidence and trust in the integrity and impartiality of the Authority may be as equally compromised by the appearance of a conflict as by the existence of an actual conflict.

Judging by some of the findings and testimony in The Watson Report, it appears, that under 1.2 Principles (c) public confidence and trust in the integrity and impartiality of the Authority may be as equally compromised by the appearance of a conflict as by the existence of an actual conflict, the actions of Mr. Watson seem to have created the appearance of a conflict of interest, thus by definition of the TPA’s principles, a conflict of interest.

My question is about the scope of the undertaking of the investigation.  Does the scope not include all of the TPA’s Letters Patent?  If it does, does it not include the principles behind the TPA’s Code of Conduct as well?

I look forward to your considered response.

Respectfully yours,

Bob Kotyk

Toronto

The Commissioner’s office responded.

Dear Mr. Kotyk,

Thank you for raising your questions with our Office. The Conflict of Interest and Ethics Commissioner is mandated to administer the Conflict of Interest Act. Under section 45, the Commissioner may conduct an examination if she has reason to believe the Act has been contravened.

The Watson Report outlined the Commissioner’s conclusions following an examination under section 45 of the Act to determine whether or not Mr. Watson contravened subsection 6(1) or section 21 of the Act. While the TPA’s Letters Patent were reviewed in order to better understand the context in which the board operated, she does not have the mandate to determine whether Mr. Watson contravened the board’s own Code of Conduct.

Eppo Maertens
Gestionnaire, Rapports et enquêtes / Manager, Investigations and reports
Commissariat aux conflits d'intérêts et à l'éthique /
Office of the Conflict of Interest and Ethics Commissioner

In other words, Ms Dawson’s examination of Mr. Watson’s conflict of interest charge was limited.  It did not include the port authority’s own code of conduct. 

This raises an interesting question.  If the ethics commissioner can’t decide if TPA board members are in conflict with their own code of conduct, then who can?

The TPA’s former lawyers said that Mr. Watson was in a conflict of interest over the vote on the second ferry.  However, the law firm was dismissed so it appears their opinion did not go anywhere.

Presumably, Transport Minister Baird has the final word.  However, it is not in Mr. Baird’s interest to determine if Mr. Watson was in a conflict of interest.  Mr. Baird appointed Mr. Watson and the two new December board members who made sure the vote on the second ferry went through even without Mr. Watson’s vote. 

Mr. Watson calls Mr. Deluce his friend and pal, lives on the same street in Rosedale as Mr. Deluce, belongs to the same golf club as Mr. Deluce, is neighbour to Mr. Deluce in Florida and has sat on two corporate boards with Mr. Deluce.

Perhaps Mr. Adams can answer two questions.

Given Mr. Watson’s relationship to Mr. Deluce was “public confidence and trust in the integrity and impartiality of the Authority equally compromised by the appearance of a conflict as by the existence of an actual conflict when Mr. Watson voted in favour of a motion that would benefit his friend’s business? 

When Mr. Adams’ actions break the TPA’s code of conduct yet meet the approval of Mr. Baird, who does he expect will call him on the breach?