76 Councillor Polhill admitted that, armed with information that the Mayor might be at Billy T’s, he contacted Councillors Henderson, Orser, and Van Meerbergen and passed that information along. Councillor White is the only one of the group who was not involved in any of the admitted pre-arranged meetings with council colleagues, but she did know Councillors Van Meerbergen and Polhill would be having lunch at Billy T’s that morning, because Councillor Polhill had told her. Although she said she was not officially invited to meet at Billy T’s, she nonetheless arrived and was present at the same time as the other councillors.
77 Moreover, Councillor Polhill’s phone records show that just before 6 p.m. the night before the gathering, he made two phone calls to Mayor Fontana, and one each to Councillors Van Meerbergen, Henderson, Orser and White, in a span of 13 minutes. The next morning, Councillor Polhill also made three calls in quick succession to Councillors Van Meerbergen, White, and Mayor Fontana around the time he arrived in the back lot of Billy T’s.
78 Evidence suggests that two of the seven councillors joined the backroom gathering via the back door, and there is also evidence that Councillor White was overheard asking how to access the back room without going through the restaurant, before remarking, “Oh forget it, I’m just going to go back there.” In addition, bystander witnesses recalled that the doors to the back room were shut most of the time.
79 The Mayor’s explanation was that once five or six council members had shown up at Billy T’s, “someone” suggested that they move to the back room. Evidence shows the Mayor made a two-minute call to Billy T’s at 9:02 a.m. on Saturday, February 23, to reserve a table. He denies specifically reserving the backroom, but his version of events appears contradicted by other witnesses. One was aware by 10:30 a.m. that the back room had been reserved for a noon meeting. Councillor Orser also advised us that when he arrived at 11 a.m., staff told him the Mayor would be sitting in the back room. In addition, one manager at Billy T’s testified that the Mayor asked to go into the back room when he arrived at 11:40 a.m., while another said the Mayor was initially alone in the back room, “sitting at a table by himself.”
80 A Billy T’s manager was also quoted on local radio as saying the Mayor “called in the morning, to see if they can use, I have a little banquet room in the back. Which it’s not the first time. Joe’s a good patron here of Billy T’s.” He later informed our investigators that he was misquoted and that he had been referring to a previous reservation a month earlier.
81 Between Mayor Fontana and Councillor Polhill, all of those involved in the backroom gathering had been notified that there would be some form of get-together involving council members at Billy T’s. In addition, the significant phone activity the night before and the morning of the gathering, in conjunction with admitted backdoor entries and exits, are all individual threads of evidence that, when interpreted as a whole, come together to support this conclusion.
82 I am unable to accept Councillor Polhill’s explanation that three successive calls made among different councillors at the time he arrived at Billy T’s were unrelated to the gathering and instead were calls about parking, car repairs, or the result of accidental “butt” dialing. A scenario that is more likely, and supported by the evidence, is that Councillor Polhill had foreknowledge that the other councillors would be at Billy T’s and wanted to confirm attendance, announce his arrival, and/or have someone let him in through the locked back door.
83 I am also unable to accept the testimony surrounding the details of the reservation. The manager’s assertion that he was misquoted by media about the reservation does not ring true, lacks credibility, and defies common sense when considered amidst the other evidence available. Furthermore, inconsistent witness accounts by the Mayor and others in conjunction with all the phone records lead me to conclude that it is more likely than not that a reservation was specifically made for the back room at Billy T’s in preparation for the gathering on February 23, 2013.
84 The seven participants claim the gathering was not planned or intended to be a council or committee meeting directed at furthering city business. They maintain that coming together was a coincidence and the lunch was purely social. The available evidence, however, indicates that this innocent explanation also defies common sense and lacks credibility – especially given that upon arrival at Billy T’s, all seven chose to congregate behind a closed door in the back room. This was a literal backroom, backdoor, closed-door meeting of seven council members.
85 The explanations provided by the council members are permeated with implausibility and lack credibility. It is both disappointing and deeply concerning that although they were in public at Billy T’s, they made deliberate and calculated attempts (individually and in concert) to conceal their behaviour from the public.
86 I accept that participants at the lunch discussed a variety of personal and business topics, and their testimony that there was no express agenda or notice typical of a council meeting. However, overlapping and corroborated evidence of the topics discussed (the Trillium Foundation grant, McCormick property, Highway 401 interchanges, zero percent tax increase, etc.) demonstrates the existence of an informal agenda. Clearly, some past and future council and committee issues were discussed. And according to the Mayor and two witnesses, the Mayor found it necessary to remind the group not to talk about the budget or city business, as it was a social gathering.
87 The timing of Councillor White’s meeting with the Chair of the London Multicultural Community Association immediately after the Billy T’s gathering raises concerns. There were various accounts, including her own, confirming she discussed the Trillium Foundation funding issue at Billy T’s. There was also the Mayor’s call to Councillor White after Billy T’s about her meeting with the LMCA Chair, which was followed by attempts by Councillor White a few days later to secure funding for the LMCA from council.
88 I therefore conclude, considering all the evidence, that discussions did occur on February 23, 2013 at a closed lunch meeting at Billy T’s in relation to the Trillium Fund grant and a request for additional city funding by the LMCA. In doing so, I find members of the Investment and Economic Prosperity Committee (IEPC) purposefully gathered and engaged in conduct that – at minimum – laid the groundwork for council members to exercise their power and authority in contravention of the open meeting requirements of the Municipal Act, 2001.
89 To conduct business, the IEPC must have a quorum of four members present. On February 23, 2013 at Billy T’s, there were five. Three – Mayor Fontana and Councillors Orser and Swan – recall discussion involving Councillor White about the Trillium Fund grant, multiculturalism and/or the Chair of the LMCA. Once a quorum of the committee was present, and a topic of committee business discussed, the gathering was caught by the open meeting requirements of the Municipal Act. There was an exchange of information that – at minimum – laid the groundwork for IEPC members to exercise their power and authority in making decisions.
90 A determination of whether a meeting has occurred does not require polling of attendees to assess whether they were paying attention while business was transacted. It is also not necessary to determine that councillors who meet in improper closed sessions actually exercise their power and authority at some later date. In this case, however, there is evidence that links the Trillium Foundation grant issue with actions actually taken by those at the Billy T’s gathering. This is precisely the sort of mischief the open meeting requirements of the Municipal Act seek to prevent.
91 The Trillium Foundation grant and the quest to have the city match those funds for the LMCA was an issue that was obviously on Councillor White’s agenda. I believe that she raised this topic at the lunch with members of the committee who could ultimately influence how this matter was addressed in future meetings.
92 It is quite understandable, then, that this backroom meeting generated strong public concern and 60 complaints to my Office – a record for a single closed meeting complaint. The evidence as a whole is both clear and disturbing. To recap, it includes: