Delegation of authority

Jackson v. Vaughan (City), 2010 ONCA 118, just released, deals with a number of issues. One of them is delegation of authority.

Linda D. Jackson was elected mayor of Vaughan. As a candidate in a municipal election, she was required to file financial statements relating to her campaign finances. A compliance audit of her election campaign finances revealed apparent contraventions of the Municipal Elections Act. After receiving the compliance audit report, the Council of the City of Vaughan passed a by-law authorizing the commencement of legal proceedings against the appellant. The Council appointed a prosecutor to conduct legal proceedings and gave the prosecutor discretion in how to proceed in the prosecution. Jack claimed that appointment amounted to an improper delegation of authority.

The Court disagreed and set out the test dealing with delegation as follows:

[50] There is a difference between making a decision (to commence a legal proceeding) and implementing that decision (deciding what charges to lay and how to handle them). As I have said, it was Council who had the power to decide whether a legal proceeding would be commenced against the appellant and it was Council who exercised that power. However, as a corporate body, the municipality can only act through its agents. Having made the decision to prosecute, it was necessary to give effect to that decision. Council did so by retaining outside counsel. In the circumstances, not only was it reasonable to delegate the prosecution to a person with the appropriate expertise and qualifications, it was necessary as it would have been difficult, if not inappropriate, for any City employee to act as the prosecutor in the proceedings. The difficulties inherent in the situation are reflected in one of the recitals to the Resolution, which says “Whereas it is important for all concerned to avoid any perception of bias as legal proceedings move forward”.