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Full Niagara Compliance Audit July 14, 2011 Niag araa11s t , : , t) NIAGARA COMPLIANCE AUDIT COMMITTEE MEETING July 14, 2011, 4:30 p.m., Council Chambers INTRODUCTORY MATTERS CALL TO ORDER SELECTION OF CHAIR DISCLOSURES OF PECUNIARY INTEREST COMPLIANCE AUDIT REQUESTS a) Application for Compliance Audit Request by Stephen Badger for Candidate for Mayor, Jim Diodati b) Application for Compliance Audit Request by Nancy Tkachuk for Candidate for Mayor, Jim Diodati Attachments • Application for Compliance Audit Request by Stephen Badger • Application for Compliance Audit Request by Nancy Tkachuk • Candidate Financial Statement • Candidate Response • Case law Procedure 1. Presentation by Applicant (or agent) for request (a) 2. Presentation by Applicant (or agent) for request (b) 3. Presentation by Candidate (or agent) 4. Committee Consideration of Application and Determination Muni '—F°'m"" APPLICATION FOR ldDdlElsctlonlAci, 1996 • Reg. 7'.M. in CanseA. INynicl,91 World Pre. G 32. schedule, s- Bt 0) Mutt loSpy Form — PRESS FIRMLY COMPLIANCE JDIT 4.41, apkim TO THE tI CLERK OR UI SECRETARY OF Municipality or local board • , I I e. ` r tJ BY THE APPLICANT Name of applicant Moiling address r Apt. No. P Code L &V'L 770. t!�(atue, �� I- Stine location or description ofprnperty tray ialit1es the applicant as en elector in the municipality (or tide). • 5 d a boo cta ite55 REQUESTING COMPLIANCE AUDIT OF ELECTION CArv1PAIGN FINANCES OF Name of caldidata r. t iv . sue Cnndidatc for office of i / --- I Q • • a9 r G✓ _ -1 E Dab; of election thr tire office k 141 i 1 O 1 r t 1, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections 4a, 1996 relating to election campaign finances. The reasonable grounds are: (attach additional sheers if necessary) Se-e, CAC, e • I believe the facts and information submitted above to be true, and I hereby request a compliance audit of the candidate's election campaign finances. r P ( 7J / . — - Date ( Signature of applicant This form contains Information . collected and maintained specifically for the, purpose - of creating-a record- available to the general public and may be inspected by any person at the clerk's office at a time when ttheofflce is bpt3rl. Subsection 88 (5). ORIGINAL — to be sent to clerk or Baer a ary COPY — to be relained by applicant Mr, Steven G. Badger 6770 Hagar Avenue, Niagara Falls, ON L2G5M4 May 24 °i . 2011 Mr. Dean Iorfida City Clerk The City of Niagara Falls 4310 Queen Street, P.O. 1023 Niagara Falls, Ontario Canada 1.,2E 6X5 Dear Mr. Iorfida, The purpose of this letter is to formally request, as an elector in the City of Niagara Falls. that a compliance audit be launched into the 2010 mayoral campaign of Mr. Jim Diodati. Mr. Diodati's apparent inability to file accurate statements and his campaign's confusion regarding campaign finance laws has lead me to believe such an investigation to be necessary to ensure the credibility of the 2010 election and that of the Office of the Mayor of the City of Niagara Falls. In order to regain the confidence and faith of the 25.578 voters who cast ballots for mayor in the election, Mr. Diodati should present all relevant information pertaining to his campaign finances to ensure he and his campaign team followed all applicable laws and regulations covering such matters. The standard to which elected office holders are hcid is high for a reason, we are entrusting them to run our public institutions on our behalf, and if out of nothing but respect they should be able to demonstrate that their election was honest, fair, and legal. If. as Mr. Diodati claims, the only discrepancy was a mere "filing error ", then such an exercise will serve to protect the legitimacy of the office to which he was elected. If there is an alternative outcome, I fully expect that the City will act on behalf of the citizens of Niagara Falls to rectify the error and .enforce the fullest extent of the applicable laws to protect our democratic processes. Respectfully Submitted, • Steven G. Badger • T i World' • Reg. APPLICATION FOR Reg. T. M. In Canada, Municipal World Inc. Municipal Elections Act, 1998 Multicopy Form — PRESS FIRMLY c. 32, Schedule, s. 81 (1) COMPLIANCE AUDIT ,,, , ' . i7 -." T ' '.. L '..'1 1 : ( TO THE g CLERK OR II SECRETARY OF Municipality or local board 1 « Cj <1 (cs . F ?x (is BY THE APPLICANT - Name of applicant lk.10 blCA !I ( Ill (k k. 1 Mailing address pt. No. Postal Code 7400 (�lo ( r ) P (ce.ce- -s 3 7 State location or description of property that qualifies the applicant as an elector in the municipality (or area). 1 a C a re:C— k u.c, ( s O ► REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate r lm D1 a dc,L4-4 Candidate for office of nil a`I Date of election for the office � kx -;)c /0 ,... , , I, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attach additional sheets if necessary) r21z,cA,-. (I j n q 0rrc r r Ma t-J , ?L--/ i Z C) 11 , e - __e_ ct-t--I-ttL_ h,e_d I believe the facts and information submitted above to be true, and I hereby request a compliance audit of the candidate's election campaign finances. .:\ Ck Ill '... ( 6(L-7 ' Da / Signature of applicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is open_ Subsection AA (5)_ ORIGINAL — to be sent to clerk or secretary COPY — to be retained by applicant ADDENDUM A Compliance Audit Grounds 1 - Filing Error re: March 24, 2011 The Financial Statement — Auditor's Report filed by Jim Diodati on March 24, 2011 showed that he had overspent $72.74 during the municipal campaign last year. The overspending of $ 154.00 had been attributed to an office expense which should have been a post election accounting expense for The Stamford Group. However, from Jan. 23, 2010 (after Mr. Diodati had filed his nomination papers) the address for the Stamford Group (3 -6251 O'Neil Street, Niagara Falls, ON) was used as his contact information on his website. Therefore this is an office expense as originally reported. Therefore: a) Has the Stamford Group supplied an invoice for January 23, 2010 — August 31, 2010, for office space and phone? b) Have those invoices been included in Office Expenses? (Please see attached) Addendum A - as shown on Google Contact - Jim Diodati: Campaign for Mayor of Niagara Falls, ON 3 - 6251 O'Neil Street. Campaign Hotline: (905) 356 -6555, Niagara Falls, ON. L2J 1M6. Hours: Monday to Friday 9:OOam- 6:OOpm. Saturday 9:OOam- 2:OOpm ... www.jimdiodati.ca /contact.aspx - Cached Address The Stamford Group 3 - 6251 O'Neill St., Niagara Falls ON L2J 1M6 905 - 374 -4782 . T.M. in World' • Reg APPLICATION FOR 'Reg. M. in Canada, Municipal World inc. Municipal Elections Act, 1998 o. 32, Schedule, s. 81 (1) Multicopy Forth — PRESS FIRMLY COMPLIANCE AUDIT —%, TO THE •; CLERK OR • SECRETARY OF Municipality or local board NI I C[ c((Li2& �-rrLk BY THE APPLICANT Name of applicant /� a I) . - T 7 Ka c ) c_L Mailing addre / Apt. No. Postal Code ` / State location or description of property that qualifies the applicant as an elector in the municipality (or area). REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate i 0d c ti Candidate for office of 11/1 c114 Date of election for the office 1 C' c 1. .r ( 7-C) / (1 I, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attach additional sheets if necessary) cri -r akc,/ fri pc 0) lEct_c---L et-k(a Gti I believe the facts and information submitted above to be true, and 1 hereby request a compliance audit of the candidate's election campaign finances. Date' YSignature of applicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is open_ Subsection RR (5). ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant 2 Grounds 2 - Non - Reporting of Related Companies Per The Municipal Elections 2010 Guide Contribution Limit, page 25 states: The limit on contributions donated in money, goods or services from any individual, corporation or trade union is S750 to any one candidate, regardless of' the number of offces the candidate was nominated for during the election period. The limitation applies whether the contribution consists of one large donation or is the total ofa number of smaller contributions of money, goods; or services from the same contributor or from related companies: The following contributions are taken from Part 11 /Table 2 of the submitted Financial Statement - Auditor's Report. Canadian Niagara Hotels - Dino DiCienzo - $750.00 Music Legends Limited - Dino DiCienzo - $750.00 Pinewood Homes (Niagara) Ltd., Angie Colineri - $500.00 Cotton Inc., Mike Colineri Sr. - $750.00 Embassy Suites - Carmen Menechella - $750.00 Fallsview Plaza Hotel - Carmen Menechella - $750.00 Contribution Refunds, page 26 states: Where a candidate learns a contribution has been made or accepted in contravention of any provision of the Municipal Election Act, 1996 the candidate must return the contribution. If the contribution cannot be returned it must be paid to the clerk. Contribution refunds should be returned to the contributor or paid to the clerk, where the contribution is.. - made outside the candidate 's campaign period - from anonymous sources (except `pass the hat " collections), - from ineligible sources (e.g., individuals not residents of Ontario or from a business or organization that is not a corporation); - in excess of the $ 750 limit or the S.5;000 total limit - a cash contribution in excess of S2.5; or - from Ands not belonging to the contributor. Therefore: a) The above constitute `related companies' as per the Municipal Elections 2010Guide. b) Have these been reported by Mr. Diodati, and have these contributions been returned to the contributor? bMunicipal World* — Form 1441 • Reg. 7. M. in Canada, Municipal World lnc. APPLICATION FOR Municipal Elections Act 1998 Mutticopy Fm — PRESS FIRMLY G 32, Schedule, s. 81 (1) . r COMPLIANCE AUDIT TO THE P CLERK OR • SECRETARY OF Municipality or local board � � r BY THE APPLICANT - Name of applicant /iq a I(i 7�a i Mailing address Apt. No. Postal Code > ) 1) i 2 10C e t State location or description of property that qualifies the applicant as an elector in the municipality (or area). t\I / r': (-t.L i-ct,t is 0It) REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate ---.0 ---.0 1 al !JiddCu / Candidate for office of 1 71/ t ai., 0 K" Date of election for the office Q.. .z.,, /• I, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attach additional sheets if necessary) c CCUA l cis IQ o n 14.00 1 4 - if )c 0 -- r ( ) pe ) 1 if ) c 6 1/4 peu 9 k-i i n t,/ e (7\ -1-0 r e � &u S (1,-�L��l � I believe the facts and information submitted above to be true, and 1 hereby request a compliance audit of the candidate's election campaign finances. J Cu l e_. , , -9 0 / � �- � &-‘-' Date t Sign of applicant v This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is open. Subsection SA (5). ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant Grounds 3 - Non - Reporting of Opening Campaign Inventory The Municipal Elections 2010 Guide Campaign Inventory, page 31 paragraph 2 states: For candidates who ran in aprevious campaign, all goodsfrom the previous campaign that are brought into the current campaign must be included in the opening inventory even (/the material was not included in the closing inventory of the previous campaign According to the Financial Statement Auditor's Report, the Inventory contributed to candidates' campaign shows nil. (Schedule 3). Therefore: a) There should be a value shown here for the metal posts used for signage *Rgs T . M. in World* — 1441 cip APPLICATION FO Mt en c . 32, Sthedul Act 1996 � • Reg. T Nt in M Municipal wofid Inc. a 32, schedule, s. 81 (1) 1) Multicopy Fors — PRESS FIRMLY COMPLIANCE AUDIT TO THE 7 CLERK OR • SECRETARY OF Municipality or local board I BY THE APPLICANT Name of applicant NJ U.c (L( ' a (.1) C.. Mailing�a?r�ess Apt. No Post ode _ � LI /, L ,/,,,,,..__ z_. State location or description of property that qualifies the applicant as an elector in the municipality (or area). 0 Ai l /1 ( (., q a 1 a 1.---c-x,ds i L.-- 3 - 7 2 -/ REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate J 1 rn _ i b �C,L -� Candidate for office of i' V �� /- 1 Date of election for the office I / C C /' 20/ O 1, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attach addi ional sheets if necessary) fl 'rz)Lci,, A CIS I /� On C,I�� 03-4-/1) 9 o- ) v,Ve o a 5 0 6 0 cis ayv d /V vi 6a _ ts p , 1 , i I believe the facts and information submitted above to be true, and 1 hereby request a compliance audit of the candidate's election campaign finances. I a `._l ,/,, Date Sign. ofa.plicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is on Subsection SR (6). ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant Grounds 4 - Under - Reporting of Inventory of Campaign Goods and Materials The Municipal Elections 2010 Guide Campaign Inventory, page 31 paragraph 3, states: In valuing these campaign materials, replacement value should be used. In all instances, proper documentation should be prepared to substantiate any opening inventory value. The inventory ofreusable campaign materials remaining on hand at the end of a campaign becomes the property ofthe candidate and must be valued and reported as closing inventory on the financial disclosure. However, a candidate should not include in the closing inventory on the financial disclosure form any materials which cannot be reused, e.g, materials which contain dates speck to the current election The value o/ any remaining inventory is not be deducted from the campaign expenses. page 32 Helpful Hints, last line - rfacquired during the campaign, value at invoice price i) Large Signs The Financial Statement — Auditor's Report Schedule 4 reports the date that these were acquired as Sept. 21, 2010. However, this date must be a subsequent order for signs as signs were being used well before this date. Therefore: a) What is the original order date / quantity and is that value shown in closing inventory? Schedule 4 also reports that the Unit Value for the large signs is shown as $ 4.00 each. However, Lakefront Graphix's website states that this type of sign and quantity would be valued at $9.99 each plus a $150.00 additional charge for photo, plus applicable sales tax. Therefore: a) Has the value of these signs been under - reported? ii) Small Signs The Financial Statement — Auditor's Report Schedule 4 reports the date that these were acquired as Sept. 21, 2010. However, this date must be a subsequent order for signs as signs were being used well before this date. Therefore: a) What is the original order date / quantity and is that value shown in closing inventory? , r Schedule 4 also reports that the Unit Value of the of the small signs as $1.50. However, Lakefront Graphix's website states that this this type of sign would be valued at $ 2.74 each, plus applicable sales tax. Therefore: a) Has the value of these signs been under - reported? iii) Posts The Financial Statement — Auditor's Report shows no listing for metal posts used during this campaign. The estimated costs of metal posts is $ 4.00 each plus tax Therefore: a) Has the Candidate failed to report a legitimate campaign expense? iv) Campaign Office Fascia Signage The Financial Statement — Auditor's Report shows no listing for or cost of the campaign office fascia signage. Therefore: a) What was the cost of the campaign office fascia signage? And where has this cost been shown in the The Financial Statement — Auditor's Report? v) Other The above inconsistencies with respect to sign expenses as reported in the Inventory and End of Campaign also raises the question as to the reported amount of $11,499.59 in the Signs category of Statement C. Therefore: a) What does the amount of $11,499.59 specifically represent? b) Where are ALL the actual invoices necessary in order to verify the above amounts? Municipal - Form APPLICATION FOR Mu Elections Act, 1 • • Reg. T.M. it it Canada. Municipal c. Schedule, al World Inc. 32, Schedull (1) e, s. 81 (1) Multicopy Form - PRESS FIRMLY COMPLIANCE AUDIT 4 TO THE f CLERK OR a SECRETARY OF Municipality or local bo: BY THE APPLICANT Name of applicant Mailing address 7 A No. Postal Code. _ Z/ State location or description of property that qualifies the applicant as an elector in the municipality (or area). lq I ct q akzL ck 0 — REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate cc/Cu-4: Candidate for office of 1 O U (— Date of election for the office C s i r l C.-% 1, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attach additional sheets if necessary) GcL 5 nder expo q of 4cluevrii S•og �x �C�c�SES I believe the facts and information submitted above to be true, and 1 hereby request a compliance audit of the candidate's election campaign finances. (9 --2Oit (7./L Da ignature of applicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is open. Subsection SS (S). ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant Grounds 5 - Under - Reporting of Advertising Expenses The Financial Statement — Auditor's Report shows the amount of $27,096.00 for advertising. However, estimated costs of Mr. Diodati's campaign advertising expenses are estimated as follows: i) Billboards - $ 16,500.00, plus applicable taxes. This is based on locations /durations /common pricing and artwork. ii) Niagara Falls Review, including ads and Review website - $ 10,000.00 plus applicable taxes from date of filing to election day. iii) Niagara This Week, including wrap and ads - $ 4500.00 plus applicable taxes. iv) Snap - $ 1,500.00, plus applicable taxes. v) Magazine — REV publications — Niagara Home Decor, fall, 2010, page 59; $2,000.00 plus applicable taxes. vi) Magazine — REV publications — Sports By Today Magazine, September, 2010. page 7; $ 1,600.00 plus applicable taxes. vii) Other — Club Italia calendar ad; Radio ads; Demon Dialers 2X on election day $ 4500.00 plus applicable taxes The total amount of these estimates is $45,878.00 Therefore: a) What does the reported Advertising expense amount of 27,096.00 specifically refer to? b) Have the expenditures for advertising been under - reported? c) Have ALL invoices and itemization for "Advertising" been accounted for and submitted from January 23, 2010, onward? d) Have all contributions of goods and services been correctly reported? •Runicipal Wane- Fo Municipal APPLICATION FOR Municipal c. Elections Act 1 • Red. T.M. in Canada. M unicrpaJ Mold td Inc. 32. Schedule, (1) e, s. 81 (1) Multicopy Form - PRESS FIRMLY t COMPLIANCE AUDIT r TO THE il CLERK OR 1111 SECRETARY OF Municipality or local board BY THE APPLICANT Name of applicant J j,. aV I a a c_1) cti_ Mailing eddies Apt No. Postal Code � C1 kio r-I-h .ali )I C/C -" , -7 State location or description of property that qualifies the applicant as an elector in the municipality (or area). NI ( 0 C1(. t 1 -cuttc Ci\ o REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate AA . • . .. . Candidate for office of I,1 iL/ • 0 - • -1 .,t • f• •ff + 1, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: attach additional sheets if necessary) I`tf A.0 G1 L c -po 4, 09, 0-( 0-17-c �-- x ,2.6 s pc:c(=._f e Q. Catch d I believe the facts and information submitted above to be true, and 1 hereby request a compliance audit of the candidate's election campaign finances. A Litile Z z • r1( z . , ,/ / i i. 646_6 (,- e o ap � . Ctate S azurplicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's effiee at a time when the office in open_ Subsection RS (S). ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant Grounds 6 - Under - Reporting of Office Expenses The Financial Statement — Auditor's Report shows an amount of $ 4,341.77 with regards to office expenses. However, taking into account the costs of such items as office lease, utilities, furniture, computers, photocopiers, cell phones, partitions, stamps, paper, etc., this amount appears low. Therefore: a) Have all the invoices been reported and correctly allocated in the amount of $4,241.77? b) Have all contributions of goods and services been reported? .- CMunic. M,inCan - ada,Muni ci p APPLICATION FOR Municipal . 32 , Sc h e Act, 1 e, s. 81 96 : (1) ?eg. T.M.in Cana, Municipal World Inc. a 32 Scel (1) Multicopy Form - PRESS FIRMLY ) COMPLIANCE AUDIT G TO THE 0 CLERK OR II SECRETARY OF Municipality or local I 1 C& r BY THE APPLICANT j Name of applicant /� /� / l C h r ( 'f/ 1..� C 11 C-4 Mailing addre s � t% I v� `� /9 A PLNO. P Lfrt.A N 6 114) • 0 nc'd 1 6 tf--- S7-7/ State location or description of property that qualifies the applicant as an elector in the municipality (or area). ii( a c a tc_. /__`_ 0 AI _ , ,.. - REQUESTING. COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate -, ( I iir) 4 0/ 0 d Candidate for office of Date of for the office Yli beit c - zo i 0 I, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attach additional sheets if necessary) -, rUZ A ds -7 ,tie (..ttlic,t pc.A.4 k-iec /qc.,-- _ fp . / ei,,c,,I, c, p ls - c_l ci I believe the facts and information submitted above to be true, and 1 hereby request a compliance audit of the candidate's election campaign finances. J CA.0 .€ ZZ zz// -//6*-4-, Ci/' „...--7.-...4 Date 7 Signature of applicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is open_ Subsection 88 (S)_ ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant Grounds 7 - Breach of the Municipal Act The distribution of support request letters sent through the restricted email of the DSBN and RCDSB is in direct violation of the Municipal Elections Guide and the individual Boards' own policies. This was brought to the attention of Kim Yielding, Manager Communications and Public Relations for the DSBN. Ms. Yielding indicated that it would be handled internally. Unfortunately this form of promoting, specifically canvassing via internal email, was not offered to other candidates as it is First Class DSBN working email. The email in question was sent from Mr. Lou Vescio, Campaign Manager for Jim Diodati, who now is retiring from the DSBN. It is of worthy note that Jim Diodati's own email address was included on the batch email. Therefore: a) Mr. Diodati was fully aware of this breach of conduct b) As this service was not offered to other candidates, a value must be attributed to it. Municipal Elections 2010 Guide page 23 Goods and Services Donated and Deemed not to be Contributions " the value of free political advertising provided it is in accordance with the Broadcasting Act (Canada) and is made available to all candidates ". Municipal Elections 2010 Guide page 24 Ineligible Contributors The/ill/owing individuals and organizations may not contribute to a municipal campaign. - a federalpolilicalparty, constituency association or a registered candidate in a federal election: - - a provincial political party, constituency association or a registered candidate or leadership contestant and - a federal or provincial government, a municipality or school board (ee 0 ea) Jim Diodati For Mayor Page 1 of? r0 N • Logout Next Unread Next in Thread History Delete Reply Reply All Reply Sender Forward Print #r`h Jim Diodati For Mayor Desktop • Mailbox • Jim Diodati For Mayor From: 4 Lou Vescio Monday, October 11, 2010 8 25 PM -0400 Subject: Jim Diodati For Mayor To: Mark Cushing 4 r Paul lbey 4 Wallie Glintz ; Michael Langlois - , Jeff Undeiiiiil 4 Jeff Detlor 4 4 Heather Bove 1 $ ERICA Bove ti Elizabeth Tulloch 4. 4 Karen Leskiw - Janvary 44 4 Genny Weerdenburg Shonda Smith 44: Cheryl Mancuso 4 Marty Mancuso 1. 4 Jennifer Reid- George y David Miller Krista Miller 4 Dawn Kidd ig 4 David Kiddl 4 Susie Palumbo 4: Jesse Palumbo 4 John Dunn - Shane McConvey L 4 Giorgio Fragnito 4 Danny Vescio 4 FRANK VESCIO 4 4 Robert Dunlop t.g 4 Donna Merante Ltg 4 Stuart Ainslie 4 Paul Brockwell James Coull CiriD 4 Sean Hilliker 4' Dean Mazzone Joe McMaster { Orla Morgan rte' 4 Susan Morgan lg 4 Jessica Folino 4 4 Michael Folino 4 Vicky Scholz -; Mary Shaw nrIT 4 Michael Simon 4 4 Nicole Steenburg Debby White d Angelo Zeffiro 4: Pat Dimond 4 Monique Deleeuw t°i Y Brad Martin 4 Bonnie Brady affr Jim Stephenson x }44 4 Todd Bright 9 Susan Bright j Bronwyn Hildebrandt 1 04 4 Liz Restivo itg 4 Rick Shields c 4 Steven Apostolos t+ Art Burley 4+ 4 Raymond Chiasson t 4 Vince Cristelli d Vito DiMartino t.Q 4 Frank DiMartino 4 Sherry Findlater ■ 4 Gina Foy 4 . Jamie French q> Don Harris 4_,m Randy Koop Rose Longley 4 Andrew Longley d Domenic Marino 4 '7:1 t . Kelly Parlatoi e 4 Srecko Polich 4 Michelle Pope Anne Rocchio L.>7114 4 Patricia Rodgers 4 Anthony Sirianni 4 4 Brittany Sirianni d Carmine Sirianni Jocelyn Sirianni 4 PATRICK Sirianni 4 Irene Wasyliw Andrea Wiggins } ' Linda McQuade 1 44 4 Della Coleman 4 Debbie Barter 1+ Anita Pietrangelo jdiodati @cogeco.ca 4 jpdiodati @cogeco.ca tiD 4 jamesdiodati @hotmail.com yt David Cockburn '- r' Betsy Elmer ,• 4 Chris Reid 4- 4 Shannon Smith t 4 Joanne Thomson t»j 4 Greg Shaubel 4 Nicole Durdan Li 4 Robert Giovannone •j Danny Vescio 4;4 FRANK VESCIO '• Lou Vescio 4 Robert Sorrenti Paul Brunet Greetings, Hope you had a great Thanksgiving week -end with your family. As everyone knows, the municipal election is just two weeks away and Jim would really appreciate your support. There is still time to volunteer your time to the campaign or to have a lawn sign delivered and set up at your home. Just visit his website at www.jimdiodati.ca to register. FYI - you can vote early by visiting one of the advance polls this week ( ie. Wednesday at the McBain Community Centre: Thursday at http : / /web.dsbn.edu.on.ca/Login/FOV 1 -00021 DB7/S02E22AB6- 02E22F91 10/ 19/:20 I 0 Jim Diodati For Mayor Page 2 of 2 the Gale Centre Arena; Friday at the Chippawa Arena; and Saturday at either Niagara Square or the Optimist Club). A strong showing at the advance polls is extremely critical for the success of our campaign, so we would really appreciate if you could find some time this week to visit the polls and cast your vote. Please visit Jim's website for times and more details regarding the advance polls. It's time to move our city from good to great, and Jim Diodati is the one candidate most capable of doing so. Jim lays out his plan for the city of Niagara Falls for the next 10 years in his 5 -point platform, which can also be found on his website. Please make your vote count in this election, and a vote for Jim will help to move our city forward and not just more of the same. Let me know if you have any questions or would like to discuss any of the issues with Jim personally. Thanks in advance for your support of Jim. Lou Lou Vescio Principal Ridgeway - Crystal Beach High School DISTRICT SCHOOL BOARD OF NIAGARA 576 Ridge Road, Box 310 Ridgeway, Ontario LOS 1N0 (905) 894-3461 (905) 894-3390 Fax lou.vescio @dsbn.edu.on.ca www.rcbhs.ca Achieving Success Together http: / /web.dsbn.edu.on.ca/Login/FOV 1 -00021 DB7/S02E22AB6- 02E22F91 10: ��r2 R orld' - Form 1441 APPLICATION FOR Municipal 32, Elections Act, • 'Reg. g. T.M. T. in Canada. Municipal World Inc. G 32, Schedull e, s. 81 1 (1) (t} Multicopy Form - PRESS FIRMLY i COMPLIANCE AUDIT \ TO THE L CLERK OR I SECRETARY OF Municipality or local board r t y BY THE APPLICANT ' Name of applicant t LiCf ` ir c,h (A Mailing a dress ` , / pt. No. Postal Code State location or description of property that qualifies the applicant as an elector in the municipality (or area). Ajj(cfiCi iL J,�� citi REQUESTING COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF Name of candidate J 1 41c1 0 CC 4 Candidate for office of yo is Date of election for the office ad , raS , C.-, 1 C.) 1, the undersigned applicant, an elector who is entitled to vote in an election, have reasonable grounds for believing that the candidate has contravened a provision of the Municipal Elections Act, 1996 relating to election campaign finances. The reasonable grounds are: (attac additional sheets if necessary) l '221 1- r '*. ` C_ nd r ,4nc/ (,O { 4 0 -_,_ 3c.-_=‘ ci_.4x.c1A,a I believe the facts and information submitted above to be true, and I hereby request a compliance audit of the candidate's election campaign finances. /6 N , L t. 1 Z 35 _E I fte ,. / , 4_, ‘. ./cl_ D /te ature of applicant This form contains information collected and maintained specifically for the purpose of creating a record available to the general public and may be inspected by any person at the clerk's office at a time when the office is open. Subsection 88 (S). ORIGINAL - to be sent to clerk or secretary COPY - to be retained by applicant Grounds 8 — Under Reporting of Website set up and hosting The Financial Statement — Auditor's Report shows an amount of $1,467.78. For this amount to cover domain name, hosting and website development to the elaborate nature of the jimdiodati.ca/com is under valued. Therefore: a) Have all invoices pertaining to website set up and hosting been accounted for? b) Have all in kind contributions been correctly allocated? c) Request that Ridgepoint Solutions provide comparable costs of similar sites ra Ontario Ministry of Municipal Affairs Financial Statement — Auditor's Re port and Housing p Form 4 Municipal Elections Act, 1996 (Section 78) Instructions Ail candidates must complete Boxes A, B, C, D E and F and Schedule 1. All candidates must complete Schedules 2, 3 and 4 as appropriate. Candidates who receive contributions or incur expenses in excess of $10,000 must also attach an Auditor's Report. All surplus funds (after any refund to the candidate or his or her spouse) shall be paid immediately over to the clerk who was responsible for the conduct of the election. YYYY MM DD YYYY MM DD For the campaign period from (day candidate filed nomination) , 2010 01 21 l to 2010 12 31 E Primary filing reflecting finances to December 31 (or 45` day after voting day in a by- election) LI Supplementary filing including finances after December 31 (or 45 day after voting day in a by- election) Box A: Name of Candidate and Office Name of Candidate Last Name I First Name Middle Initial Diodati James Mailing Address Suite /Unit No. Street No. Street Name 6542 January Drive City/Town Province Postal Code Niagara Falls ON L2J 4J4 Telephone No. (incL area code) Fax No. Email Address Business Home (905) 358 -6023 (905) 358 -6023 (905) 358 -9062 jdiodati @cogeco.ca Name of office for which the candidate sought election Ward Name or No. (if any) Mayor Name of Municipality Niagara Falls Box B: Summary of Campaign Income and Expenses 1 . My spending limit (as issued by clerk) was $ 60,946.30 2. Surplus (or deficit) from previous election [$ 0.00 3. Total contributions received (from Schedule 1) $ 71,173.39 4. My total campaign expenses that were subject to the spending limit were (from Box C) - - - $ 61,019.04 5. My total campaign expenses that were not subject to the spending limit were (from Box C) - - $ 10,154.67 6. Total of all campaign expenses (from Box C) $ 71,173.71 7. Election campaign surplus /deficit from current election (from Box E) $ 0.00 8. Contributions refunded to candidate or spouse (from Box E) I $ 0.00 9. Amount paid to clerk (from Box E) $ 0.00 9503P (2010/01) ® Queen's Printer for Ontario, 2010 Disponible en frangais Page 1 of 8 Box C: Statement of Campaign Period Income and Expenses From To For Candidate YYYY MM DD I YYYY MM DD 2010 I 01 21 2010 i 12 31 James Diodati INCOME Candidate's surplus from immediately preceding election released by the clerk + $ Contributions from candidate + $ 1,378.39 Contributions from spouse of candidate + $ All other contributions + $ 69,795.32 Revenue from fund - raising functions not deemed a contribution (from Schedule 2, Part III) + Interest income + $ Other (provide full details) 1. 3. + $ Total Campaign Period Income = 1$ 71,173.71 C1 EXPENSES (Note: include the value of contributions of goods and services) Expenses Subject to Spending Limit Advertising + $ 27,096.55 Bank charges + $ 1,569.97 Brochures + $ 12,801.53 Interest on loan + $ Inventory contributed to candidate's campaign (Schedule 3) + !$ Meetings hosted + $ 1,215.22 Nomination filing fee + $ 200.00 Office expenses + $ 4,341.77 Phone and /or Internet + $ 527.79 Salaries and benefits /honoraria /professional fees + $ _— Signs + $ 11,499.59 Other (provide full details) 1. Website setup and hosting + $ 1,467.78 2. Travel reimbursement + $ 298.84 3. + $ Subtotal = $ 61,019.04 C2 Expenses Not Subject to Spending Limit Accounting and audit + $ 3,160.50 Costs of fund - raising function (from Schedule 2, Part IV) + $ Expenses related to compliance audit + $ Expenses related to controverted elections + $ Expenses related to recounts + $ Voting day party / appreciation notices + $ 6,994.17 Expenses related to candidate's disability (provide details) 1 -- + $ I 2. . + $ 3. + $ Other (provide full details) 1. +($ 2. + $ 3. + $ Subtotal = $ 10,154.67 C3 Total Campaign Period Expenses (C2) + (C3) _ $ 71,173.71 C4 Excess (Deficiency) of Income over Expenses (C1) – (C4) _ $ 9503P (2010101) Page 2 of 8 Box D: Statement of Assets and Liabilities as at December 31 , 2010 Assets Cash + $ Accounts receivable + $ Value of inventory retained (from Schedule 4) + $ 3,546.00 Other (provide full details) 1. + $ 2. + is 3. + $ Total Assets = $ 3,546.00 Liabilities and Excess (Deficiency) of income over Expenses Accounts payable + $ Borrowings, overdraft + L$ Other (provide full details) + $ 2. — — + $ — -- 3. + $ Total Liabilities _. _ $ Box E: Statement of Determination of Surplus or Deficit and Disposition of Surplus Part 1 - Determination of Surplus or Deficit Amount of excess (deficiency) of income over expenses (from Box C) + $ El Deduct: Any deficit carried forward by the candidate from immediately preceding election 1. if the offices are with respect to the same jurisdiction - $ j E2 Surplus (or deficit) for the campaign period (El) - (E2) _ I $ Deduct: Any refund of contributions to the candidate or spouse (only if there is a surplus) - $ Total Determination = $ E3 Part 11 Disposition of Surplus If line E3 shows a surplus, the amount must be paid in trust, at the time the financial statements are filed, to the municipal clerk who was responsible for the conduct of the election. Surplus paid to the municipal clerk of the municipality of Box F: Declaration I, James Diodati , a candidate in the municipality of Niagara Falls , hereby declare that to the best of my knowledge and belief that these financial statements and attached supporting schedules are true and correct. Declared before (clerk or commissioner) ,� q i n the li TY 0f / ( PAW on (yyyy /mm /dd) ,1 T / 03/ / I joi L._ } ( >4_ Signa ure of Clerk or Co missioner OA. F Signature of Candidate GI 1 0 3 //l 9 1 " % s O 9,o Date Filed in the Clerk's Office (yyyy /mm /dd °-;) 0; s °' . O, fd o '9 ,9 s /o7 ® 9503P (2010/01) Page 3 of 8 Schedule 1 — Contributions Part I - Contribution Contribution from candidate + $ 1,378.39 Contribution from spouse + $ Total from each single contributor totalling more than $100 • include all ticket revenue where ticket price exceeds $100 • include all goods and services where value exceeds $100* • do not include contributions from candidate or spouse + $ 65,605.00 1 Total from each single contributor totalling $100 or less • include all ticket revenue where ticket price is $100 or less • include all goods and services where value is $100 or less` • do not include contributions from candidate or spouse + $ 4,190.00 *Note: Goods and services must also be reported as expenses in Box C Less: Contribution returned or payable to the contributor Contribution paid or payable to the clerk — $ 1A Total Amount of Contribution = $ 71,173.39 Total contribution from anonymous sources $ 1B Amount of contributions paid or payable to the clerk (IA) + (1 B) _ $ Part II - List of Contributions from Each Single Contributor Totalling More than $100 Table 1: Monetary contributions from individuals other than candidate or spouse Name Address Amount $ I$ $ $ $ $ $ $ I$ ® Additional information is listed on separate supplementary attachment Total $ 15,275.00 9503P (2010/01) Page 4 of 8 Table 2: Monetary contributions from unions or corporations Name (Legal and Carrying on Address President or Cheque Signatory ' Amount Business As) Business Manager $ $ $ $ I $ j$ ® Additional information is listed on separate supplementary attachment Total is 48,830.00 Table 3: Contributions in goods or services (Note: must also be reported as expenses in Box C) Name Address Goods or Services J Amount 6452 Doreen Drive Niagara Joan Crawford Falls, ON L2E 51(2 marketing and promotional ideas $ 750.00 Pizza Pizza Limited 500 Kipling Avenue, Toronto, meals $ 750.00 ON M8Z 5E5 i $ ; $ ❑ Additional information is listed on separate supplementary attachment Total $ 1,500.00 Total Part 11 Contributions $ 65,605.00 9503P (2010/01) Page 5 of 8 . . Schedule 2— Fund-Raising Function El Additional schedule for each even or acvity held isfare Iisted on separate supplementary attachmert(s) Date Descriptior, of event or activity YYYY MM DD | | ! � Admission charge (per person)* (may not exceed individual contribution Umit) $ 2A *If admission charge per person is not consistent, attach complete breakdown of all ticket sales. Number of tickets sold ---- 2B Part — TickwtRevenuw Lines: (2A) x (2B) (include in Schedule 1) =)s PartU— QtherRevwnueDeemwdACmntdbut|mn Provide full details (e.g., revenue from goods sold in excess of fair marke value) 1. _ _ _ + F�-- z. ' - - + $ u. ' ' - + $ - - - + $ 5 - -- — --'--- �� -- / ' - ' + �� 7. ' ' - + � 8. __ - ' ' ' + $ Total Part U Revenue (include in Scheriule 1) = $ PartU| — Other Revenue Not Deemed AContribution Provide full details (o.g., contributions of $10 or less; revenue from refreshment sold at cost) t ' ' ' + |$ 2. - - + $ 3. ' ' - + $ _ | 4. - - ' + $ 5. - - - + $ 6. ' - - + $ 7. - ' + $ 8. - ' + $ Total Part 111 Revenue (include in Box C) =| Part IV — Expenses Related to Fund-Raising Function Venue + ( Event advertising + Food and drink + Entertainment + $ Other (provide full details) 1. - + | $ 2. ' ' ' + $ —�--- ---- 3. _-__-- -- __ ' - - + $ 4. ' - - + $ 5. ' - - + $ 6. _ ' - - + $ 7. - - . + $ 8. ' - - + $ Total Part IV Expenses (include in Box C) = $ 9503P (2010/01) Page 6 of 8 Schedule 3 — Inventory of Campaign Goods and Materials (from Previous Campaign) Used In Candidate's Campaign Description Date Acquired Supplier Unit Value Quantity ' Total Value (yyyy/mm/dd) $ 1 $ 1 $ $ $ $ $ $ $ $ i$ I$ $ $ L --- I $ 1 d , Total Value of Inventory from Previous Campaign Used in Candidate's Campaign $ Schedule 4 — Inventory of Campaign Goods and Materials at The End of Campaign Description Date Acquired Supplier Unit Value Quantity Total Value (yyyy /mm /dd) Large signs 2010/09/21 Lakefront Graphix 1$ 4.00 a 290 $ 1,160.00 Small signs 2010/09/21 Lakefront Graphix $ 1.501 1,220 $ 1,830.00 Posts 2010/10/08 Home Depot $ 1.00 ` 556 � $ 556.00 T ------- - -- $ $ $ $ $ $ $ $ $ $ $ 1 $ Total Value of Inventory of Campaign Goods and Materials $ 3,546.00 9503P (2010/01) Page 7 of 8 Auditor's Report Municipal Elections Act, 1996 (Section 78) A candidate who has received contributions or incurred expenses in excess of $10,000 must attach an auditor's report. The report must be done in accordance with generally accepted auditing standards and must: • set out the scope of the examination • provide an opinion as to the completeness and accuracy of the financial statement and whether it is free of material misstatement Professional Designation of Auditor Chartered Accountant Municipality Date (yyyy /mm /dd) Niagara Falls 2011/03/14 Contact Person Licence No. Last Name First Name Chehowski Richard J ' 11 S 33 Address Suite /Unit No. Street No. Street Name Unit 1 6100 Thorold Stone Road City/Town Province Postal Code Niagara Falls ON L2E 6V6 Telephone No. (Incl. area code) Fax No. Email Address (905) 357 -5711 ext. 302 (905) 357 -7932 rchehowski@djb.com 9503P (2010 /01) Page 8 of 8 Part 11 • List of Contributions from Each Single Contributor Totalling More than $100 Table 1 ame Address Contact Donation Amount Amold, Jim 100 -4838 Dorchester Road Niagara Falls, ON L2E 6N9 Jim Arnold 200 Bickles Hardware PO Box 57, Station Main Niagara Falls, ON L2E 688 Victor DeCarla 750 Boyce, J. Randal PO Box 698 Niagara on the Lake, ON LOS 1J0 J Randal Boyce 200 Carlesso, John 79 Glencaim Avenue Toronto, ON M4R 1M7 A John Carlesso 500 Cascella, Natalie 3509 Aquinas Avenue Mississauga, ON L5M 7N8 Natalie Cascella 750 Cocov, Zoran 30 Eglinton Ave. W. Unit 12 Mississauga, ON L5R 3E7 Cocov, Zoran 750 Dargavel, Dr Dan 6518 January Drive Nlagara Falls, ON L2J 4J4 Dr Dan Dargavei 250 Delorenzo, Donald 14659 Niagara River Parkway, RRI Niagara -on- the -Lake, ON LOS 1J0 Donald Delorenzo 200 DelVecchio, Dr. Vitale 3526 Matthews Drive, Niagara Falls, ON L2H 2Z4 Dr. Vitale DelVecchio 200 Di Giacomo, Anthony 6467 Rockcliffe Estates Niagara Falls, ON L2J 4K7 Anthony Di Giacomo 500 DIBelionla, Tish 8444 Lundy's Lane Niagara Falls, ON L2H 1H4 Tish DiBellonla 530 Diodati, Julie 2840 Olden Ave., Niagara Falls, ON L2J 4E2 Julie Diodati 200 Diodati, Ryan & Jody 6709 Topaz Cres., Niagara Falls, ON L2J 31-42 Ryan or Jody 500 Dobbin, Dr. Stafford 4421 Queen Street Niagara Falls, ON L2E 2L2 Dr. Stafford Dobbin 500 Duffus, Peter 121 County Road 6 RR2 Lakefleld ON KOL 2H0 Peter Duffus 750 Focus Eyewear 4025 Dorchester Road Nlagara Falls, ON L2E 6N1 Shaun Fani 250 Hang -Ups 4424 Montrose Road, Niagara Falls, ON L2H 1K2 Buddy Lowe 150 Holer, John 7885 Stanley Avenue Niagara Falls, ON L2E 6X8 John Holer 500 ll Carpaccio 6840 Lundy's Lane Niagara Falls, ON L2G 1V6 Ron Herkimer 125 Jackiewicz, Dr Allan 4256 Portage Road, Suite103 Niagara Falls, ON 1.28 6A6 Dr Allan Jackiewicz 250 Maloney, Michael 9145 Ridge Road, RR$ Welland, ON L38 5N7 Michael P Maloney 150 Matovlc, Dragan 3626 Matthews Dnve Niagara Falls, ON L2H 2Z1 Dragan Matovlc 250 McDonald, Daniel J 4683 Queen St., PO Box 726, Niagara Falls, ON L2E 6V5 Daniel J. McDonald 200 Merani, Ashak 4 McClure Crescent Thorold, ON L2V 4B6 Ashak Merani 750 Muller, Henry 482 Ontario St, Ancaster, Ontario L9G 3E1 Muller, Henry 200 Nightmares Fear Factory 5631 Victoria Avenue, Niagara Falls, ON L2G 3L5 Frank LaPenna 200 Nowak, David 242 Rosedale Heights Drive Toronto, ON M4T 1E1 Davld Nowak 500 Overs, Ian Overs, Ian 221 Ellis Ave Toronto, ON M6S 2X4 Ian Overs 750 Fellow, Brian 2707 Mountaincrest Avenue Niagara Falls, ON L2J 4H8 Brian Pellow 500 PS DeLuca Investments 154 Margaret Ave Stoney Creek, ON L8G 3G8 Pat DeLuca 250 Rocca, James 3449 Cardinal Drive Nlagara Falls, ON L2H 2X3 James Rocca 200 Schram, David 4701 St. Clair Ave, Suite 301 Niagara Falls, ON L2E 3S9 Schram, David 300 Sheppard, Mrs Dianne 8111 Forest Glen Drive Niagara Falls, ON L21-I 2Y7 Dianne Sheppard 150 Taylor, Dr. Andrew 5400 Portage Road, Suite 504 Nlagara Falls, ON L2G 5X7 Dr. Andrew W. Taylor 500 Thistlewalte Yardworks 7652 Wayne Street Niagara Falls, ON L2H 1G6 Harry & Cyndi Thistlewaite 500 Vacca, Rocco 8873 Joseph Crt. Niagara Falls, ON L2H 3P1 Rocco Vacca 200 Visentin, Louis & Mary 20 -5070 Drummond Road Niagara Falls, ON L2E 6E4 Lou Visentin 200 Vuksan, Ranko 7959 Oakrldge Drive Niagara Falls, ON L2H 2W2 Ranko Vuksan 250 Walker, George F 4786 Queen St., P.O. Box 868, Niagara Falls, ON L2E 6V6 George F. Walker 5C0 Waters, Meredith, MacRae & Tchang, !.LP 4607 Huron Street, Niagara Falls, ON L2E 2H6 George 6 Waters 200 Zarafonitis, Julian 3634 Cardlnal Dnve Nlagara Falls, ON L2H 2Y1 Julian Zarafonitis 500 15,275 O O O 0 0 0 0 0 0 0 0 0 0 0 0 LA 0 0 0 0 O 0 0 0 0 0 0 0 O 0 0 0 0 a. 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'5 sx c 7 m U J U = - a _. 3 7 Q 'u • rn o ) m ca rn co 0) as 0 •C 0 P co 5 .j .o a) E E E m 0 0 0 V 2 - cn O to f0 al c0 c0 c0 = C O O 0> O O O O O 7 co C.c L L L 0 0 0 Cn 7 O 2 2 2 2 2 z 2 2 2 2 2 2 .cu .co CO z ca E 0 o_ a F a a CC CC CC X CC cC rY Ct m F- F- I- i- E- 0 o o 0 �n Ln o N. N I. 6 m w o a O t9 t . c ii ° m 0 X Z 0 of m o Z rn › u co g Z • 0 c o o z O o c'n o .a T 0 • ti a 0 m m o x O O O a- m = o O 0 0 a r u� 0 0 0 0 0 tot§ • e C y Y CO C CD N • q M. DJ13 CHARTERED ACCOUNTANTS DURWARD JONES BARKWELL & COMPANY LLP 6100 Thorold Stone Road, Unit 1, P.O. Box 873 INDEPENDENT AUDITORS' REPORT Niagara Falls, Ontario L2E 6V6 905.357.5711 866.223.8459 Fax 905.357.7932 To Dean lorfida, Clerk of the Corporation of the nfalls @djb.com www.djb.com City of Niagara Falls in the Region of Niagara: We have audited the financial statements of James Diodati Mayoral Campaign, which consists of the Statement of Assets and Liabilities as at December 31, 2010 and the Statements of Campaign Period Income and Expenses and of Determination of Surplus or Deficit and the Disposition of Surplus for the campaign period from January 21, 2010 to December 31, 2010 relating to the election held on October 25, 2010. Candidate's Responsibility for Financial Statements James Diodati, candidate, is responsible for the preparation and fair presentation of these financial statements in accordance with Canadian generally accepted accounting principles and for such internal control as the candidate determines is necessary to enable the preparation of financial statements that are free from material misstatement, whether due to fraud or error. Auditors' Responsibility Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with Canadian generally accepted auditing standards. Those standards require that we comply with ethical requirements and plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors' judgement, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to James Diodati Mayoral Campaign's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of James Diodati Mayoral Campaign's internal control. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of accounting estimates made by the candidate, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our qualified audit opinion. Basis for Qualified Opinion Due to the nature of the types of transactions inherent in an election campaign, it is impracticable through auditing procedures to determine that the accounting records include all donations of goods and services, and receipts and disbursements. Accordingly, our verification of these transactions was limited to ensuring that the financial statements reflect the amounts recorded in the accounting records of James Diodati Mayoral Campaign in accordance with the accounting procedures established by the Municipal Elections Act, 1996 and we were not able to determine whether any adjustments might be necessary to income and expenses, assets and liabilities, and surplus /deficit. As a result, these financial statements are intended solely for the Clerk of the Corporation of the City of Niagara Falls in the Region of Niagara and should not be distributed to, or relied upon by other parties. Qualified Opinion In our opinion, except for the possible effects of the matters described in the Basis for Qualified Opinion paragraph, the financial statements present fairly, in all material respects, the financial position of the James Diodati Mayoral Campaign as at December 31, 2010 and the income and expenses for the campaign period from January 21, 2010 to December 31, 2010 and the determination of surplus or deficit and the disposition of surplus in accordance Canadian generally accepted accounting principals as prescribed by the Municipal Elections Act, 1996. The Municipal Elections Act, 1996 does not require us to report, nor was it practicable for us to determine, that contributions reported include only those which may be properly retained in accordance with the provisions of the Municipal Elections Act, 1996. alle,Jaf1at crht,0 Van k God, C Itevyt. 1, 1-. P Big enough to know t Durward Jones Barkwell & Company LLP SMALL ENOUGH TO CARE Licensed Public Accountants BURLINGTA arch 1140111 EIE • GRIMSBY HAMILTON • NIAGARA FALLS • ST. CATHARINES • STONEY CREEK • WELLAND DJB CHARTERED ACCOUNTANTS DURWARD JONES BARKWELL & COMPANY LLP 6100 Thorold Stone Road, Unit 1, P.0. Box 873 Niagara Falls, Ontario L2E 6V6 905.357.5711 866.223.8459 Fax 905.357.7932 nfalls @djb.com www.djb.com Mr. Dean lorfida, Clerk March 25, 2011 Corporation of the City of Niagara Falls 4310 Queen Street P.O. Box 1023 Niagara Falls, ON L2E 6X5 Dear Mr. lorfida: Re: Financial Statement — Auditor's Report Form 4 Under Municipal Elections Act, 1996 For Mayor Candidate James Diodati Please find enclosed an amended Financial Statement — Auditor's Report Form 4 for Mayoral Candidate James Diodati for the 2010 Municipal election. Upon reviewing the original Form 4 which was previously submitted to you, we discovered that an expense paid to The Stamford Group for accounting fees in the amount of $154.81 had been incorrectly reported as office expenses, rather than accounting fees. The attached amended Form 4 reflects the correct allocation of these accounting fees. We trust you will accept this corrected Form 4 as the true filing for Mr. Diodati. We apologize for any issues or concerns the initial filing of the Form 4, and the fact that it had to be amended, may have caused. If you would like to discuss our revision, or any other matter related to this filing, please contact our office. Yours very truly, DURWARD JONES BARKWELL & COMPANY LLP did' Richard N. Chehowski, C.A. Partner Big enough to know t SMALL ENOUGH TO CARE BURLINGTON • FORT ERIE • GRIMSBY • HAMILTON • NIAGARA FALLS • ST. CATHARINES STONEY CREEK • WELLAND • r • t X'Ontario Mry of M unic p al Affairs Financial Statement - Auditor's Report Form 4 , , i -- Municipal Elections Act, 1996 (Section 78) 1 y Instructions All candidates must complete Boxes A, B, C, D, E and F and Schedule 1. All candidates must complete Schedules 2, 3 and 4 as appropriate. Candidates who receive contributions or incur expenses in excess of $10,000 must also attach an Auditor's Report. All surplus funds (after any refund to the candidate or his or her spouse) shall be paid immediately over to the clerk who was responsible for the conduct of the election. YYYY MM DD YYYY MM DD For the campaign period from (day candidate filed nomination) 2010 01 21 to 2010 12 31 Primary filing reflecting finances to December 31 (or 45 day after voting day in a by- election) ❑ Supplementary filing including finances after December 31 (or 45 day after voting day in a by- election) Box A: Name of Candidate and Office Name of Candidate Last Name First Name Middle Initial Diodati James Mailing Address Suite /Unit No. Street No. Street Name 6542 January Drive City/Town Province Postal Code Niagara Falls ON L2J 4J4 Telephone No. (incl. area code) Fax No. Email Address Business Home (905) 358 -6023 (905) 358 -6023 (905) 358 -9062 jdiodati @cogeco.ca Name of office for which the candidate sought election ; Ward Name or No. (if any) Mayor Name of Municipality Niagara Falls Box B: Summary of Campaign Income and Expenses 1. My spending limit (as issued by clerk) was $ 60,946.30 2. Surplus (or deficit) from previous election $ 0.00 3. Total contributions received (from Schedule 1) $ 71,173.71 4. My total campaign expenses that were subject to the spending limit were (from Box C) - - - $ , 60,864.23 5. My total campaign expenses that were not subject to the spending limit were (from Box C) - - $ 10,309.48 6. Total of all campaign expenses (from Box C) $ 71,173.71 7. Election campaign surplus/deficit from current election (from Box E) t $ 0.00 8. Contributions refunded to candidate or spouse (from Box E) $ 0.00 9. Amount paid to clerk (from Box E) $ 0.00 95C3P (2010/01) 0 Queen's Printer for Ontario, 2010 Disponible en frangais Page 1 of 8 Box C Statement of Campaign Period Income and Expenses From To For Candidate YYYY MM , CM YYYY , MM DO 2010 1 01 21 l 2010 1 12 ; 31 James Diodati INCOME Candidate's surplus from immediately preceding election released by the clerk + I $ — Contributions from candidate + $ 1,378.39 Contributions from spouse of candidate + $ All other contributions + $ 69,795.32 Revenue from fund - raising functions not deemed a contribution r (from Schedule 2, Part III) + s l-=-- Interest income + 1 $ Other (provide full details) 1 + $ 2. + $ 3. + $ Total Campaign Period Income = $ 71,173.71 . C1 EXPENSES (Note: include the value of contributions of goods and services) Expenses Subject to Spending Limit Advertising + 1$ 27,096.55 1 Bank charges + I $ 1,569.97 Brochures + 1$ 12,801.53 Interest on loan + $ Inventory contributed to candidate's campaign (Schedule 3) + $ Meetings hosted + $ 1,215.22 Nomination filing fee + $ 200.00 Office expenses + 1$ 4,186.96 Phone and/or Internet + $ 527.79 Salaries and benefits /honoraria /professional fees + $ I Signs + $ 11,499.59 1 Other (provide full details) _ 1 1. Website setup and hosting + 1$ 1,467.78 2. Travel reimbursement + 1$ 298.84 3. Subtotal = $ 60,864.23 C2 Expenses Not Subject to Spending Limit Accounting and audit + 1 $ 3,315.31 Costs of fund - raising function (from Schedule 2, Part IV) + $ Expenses related to compliance audit + $ _______ Expenses related to controverted elections + ' $ Expenses related to recounts + $ Voting day party / appreciation notices + $ 6,994.17 Expenses related to candidate's disability (provide details) 1. + $ 2. + $ 3. + $ Other (provide full details) -- 1. + $ 2. + !$ 3. + $ Subtotal = $ 10,309.48 C3 Total Campaign Period Expenses (C2) + (C3) _ $ 71,173.71 C4 Excess (Deficiency) of Income over Expenses (C1) – (C4) _ $ 9503P (2010/01) Page 2 of 5 Box D: Statement of Assets and Liabilities as at December 31 , 2010 Assets Cash + 1$ Accounts receivable + I $ Value of inventory retained (from Schedule 4) + I $ 3,546.00 1 Other (provide full details) 1. + I$ 2 3, + $ - Total Assets _ $ 3,546.00 Liabilities and Excess (Deficiency) of Income over Expenses L . Accounts payable + $- 0 Borrowings, overdraft + I $ -- Other (provide full details) — ----1 Li - ---- - - - - + Total Liabilities _ - IS Box E: Statement of Determination of Surplus or Deficit and Disposition of Surplus Part I - Determination of Surplus or Deficit Amount of excess (deficiency) of income over expenses (from Box C) + 1 $ El Deduct: Any deficit carried forward by the candidate from immediately preceding election - $ E2 if the offices are with respect to the same jurisdiction - Surplus (or deficit) for the campaign period (El) - (E2) _ $ - - - - -- Deduct: Any refund of contributions to the candidate or spouse (only if there is a surplus) - � $ Total Determination = $ E3 Part II - Disposition of Surplus If line E3 shows a surplus, the amount must be paid in trust, at the time the financial statements are filed, to the municipal clerk who was responsible for the conduct of the election. Surplus paid to the municipal clerk of the municipality of Box F: Declaration 1, James Diodati , a candidate in the municipality of Niagara Falls , hereby declare that to the best of my knowledge and belief that these financial statements and attached supporting schedules are true and correct. Declared before (clerk or commissioner) �1' in the e (-(``{ o /i (46 MA - 41 - 1, on (yyyy /mm /dd) 2 0 I I / 03 z.. OF I 4,1 . (:-- } . . Signature of Clerk •' omm sioner Signature of Candidate 01, J z� % 2 q +/o • Date Filed in the Clerk's Office (yyyy /mm ‘0 + ''oi 4t a� Q' e l c � Q 0 cy -*/ Ot, ,. Page 3of8 9503P (2010!01) Schedule 1 — Contributions Part I — Contribution Contribution from candidate + $ 1,378.39 Contribution from spouse + $ Total from each single contributor totalling more than $100 • include all ticket revenue where ticket price exceeds $100 • include all goods and services where value exceeds $100* • do not include contributions from candidate or spouse + L$ 65,605.00] Total from each single contributor totalling $100 or less • include all ticket revenue where ticket price is $100 or less • include all goods and services where value is $100 or less* + $ 4,190.00 • do not include contributions from candidate or spouse *Note: Goods and services must also be reported as expenses in Box C Less: Contribution returned or payable to the contributor — 1$ I 1A Contribution paid or payable to the clerk — $ Total Amount of Contribution = $ 71,173.39 Total contribution from anonymous sources ($ 0.32 1B Amount of contributions paid or payable to the clerk (1A) + (1B) _ !$ 0.32 Part II — List of Contributions from Each Single Contributor Totalling More than $100 Table 1: Monetary contributions from individuals other than candidate or spouse Name Address Amount • I $ $ $ $ $ Additional information is listed on separate supplementary attachment Total $ 15,275.00 9503P (2010/01) Page 4 of 8 Table 2: Monetary contributions from unions or corporations Name (Legal and Carrying on Address President or Cheque Signatory Amount Business As) Business Manager $ $ i ! -- ------- - - - - -- ? $ ® Additional information is listed on separate supplementary attachment T otal I $ 48,830.00 Table 3: Contributions in goods or services (Note: must also be reported as expenses in Box C) Name [Address Goods or Services Amount 6452 Doreen Drive, Niagara marketing and promotional ideas $ 750.00 Joan Crawford Falls, ON L2E 5K2 g p Pizza Pizza Limited 500 Kipling Avenue, Toronto, meals $ 750.00 ON M8Z 5E5 $ $ ❑ Additional information is listed on separate supplementary attachment Total $ 1,500.00 Total Part 11 Contributions $ 65,605.00 9503P (2010/01) Page 5 of 8 Schedule 2 - Fund-Raising Function El Additional schedule for each event or activity held is/are listed onseparate supplementary attachment(s) Date Description of event or activity yyYy MM DD � / | Adm�s�nohar��erpe�on> (may not exceed ind��mgcon�budunhm� /� 2A *If admission charge per person is not consistent, attach complete breakdown of all ticket sales. 2B Number of§oke�mdd / / Port| - Ticket Revenue = Uned: �A)x(3B) Vn�uue|na� � 1) | | Schedule PmrtU- OtherRovenuuDeemedAContdbution Provide full detalls (e.g., revenue from goods sold in excess of fair market value) 1. ' ' - + $ --- | 2. __-___ ' ' ' + $ 3. __ - ' ' ' + $ 4. — ' - + 5. _-- �_- __- - ' ' + $ a -__ -__-_ __ - - - + }� � 7. -''+$ 8. _ ' ' ' + $ Total Part 11 Revenue (include In Schedule 1) = $ PortU| - Otbe,RwvenueNotDwwmmdACunthbutipn Provide full details (e.g., contributions af $1O orless: revenue from refreshment sold atcost) 1. — ' ' ' ° --- � — - l 2. - ' ' + $ 3. ' - ' ' 4 . '_--__ -------- - - - ' = 5. ' - - + |$ 6. __ — ' ' +$ 7. ' ' - + - -------- | O. - - - + !� = Total Part III Revenue (include (include m Bo de $ Part IV - Expenses Related to Fund-Raising Function Venue + $ -- Event advertising + $ Food and drink + � Entertainment + |$ Other (provide full details) 1. ' - + $ 2. ' ' - + $ 3. - ' + 4. - - - + $ 5. ' ' ' + $ 6. - ' + $ 7. -- ' ' ' + $ 8. '''+$ � Total Part IV Expenses (include in Box C) = $ 9503P (2010/01) Page oofo . . Schedule 3 — Inventory of Campaign Goods and Materials (from Previous Campaign) Used in Candldate's Campaign Description Date Acquired Supplier Unit Value Quantity Total Value �yyyhnm/dd) 1 ' ' | $ $ � | 1$ $ L_- $ 1 1 $ $ i$ $ $ 1 $ 1 |$ | '$ — -----� ' | $ |$ $ � � | | -_- _�__- _-___ . _____'_ __ _ __-_ Total Value of Inveritory from Previous Campaign Used in Candidate's Campaign $ Schedule 4 — Inventory of Campaign Goods and Materials at The End of Campaign Description Date Acquired Supplier Unit Value Quantity Total Value } (y�yy��m/d) | / Large signs 2010/09/21 Lakefront Graphix $ 1,160.00 Small signs 10/00/21 Lakefront Graphix $ 1.50 1,220 |$ 1,830.00 Posts | 2010/10/08 Home Depot 1.00 556 $ 556.00 $ $ ---- --- T | $ $ I $ $ l $ $ $ $ � $ $ |$ $ ! � Total Campaign Goods and Materials $ 3,546.00 9503P (2010/01) Page rofo Auditor's Report Municipal Elections Act, 1996 (Section 78) A candidate who has received contributions or incurred expenses in excess of $10,000 must attach an auditor's report. The report must be done in accordance with generally accepted auditing standards and must: • set out the scope of the examination • provide an opinion as to the completeness and accuracy of the financial statement and whether it is free of material misstatement Professional Designation of Auditor Chartered Accountant Municipality Date (yyyy /mm /dd) Niagara Falls 2011/03/14 Contact Person Licence No. Last Name First Name Chehowski Richard 1-11833 Address Suite /Unit No. Street No. I Street Name Unit 1 6100 Thorold Stone Road City/Town Province Postal Code Niagara Falls ON L2E 6V6 Telephone No. (Incl. area code) Fax No. Email Address (905) 357 -5711 ext. 302 I (905) 357 -7932 rhehowski@djb.com 9503P (2010/01) Page B of 8 Part II - List of Contributions from Each Single Contributor Totalling More than $100 Table 1 Name Address Contact Donation Amount Arnold, Jim 100 -4838 Dorchester Road Niagara Falls, ON L2E 6N9 Jim Arnold 200 Sickles Hardware PO Box 57, Station Main Niagara Fells, ON L2E 6S8 Victor DeCara 750 Boyce, J. Randal PO Box 698 Niagara on the Lake, ON LOS 1J0 J Randal Boyce 200 Carlesso, Johr 79 Glencaim Avenue Toronto, ON M4R 1M7 A John Carlesso 500 Cascella, Natalie 3509 Aquinas Avenue Mississauga, ON L5M 7N8 Natalie Cascella 750 Cocov. Zoran 30 Eglinlon Ave. W. Unit 12 Mississauga, ON L5R 3E7 Cocov, Zoran 750 Dargavel, Dr Dan 6518 January Drive Niagara Falls, ON L2J 4J4 Dr Dan Dargavel 250 Delorenzo, Donald 14659 Niagara River Parkway. RR! Niagara -on- the -Lake, CN LOS 1J0 Donald Delorenzo 200 De'Vecchio, Dr. Vitale 3526 Matthews Drive, Niagara Falls, ON L2H 2Z4 Dr. Vitale DetVecchio 200 Di Giacomo, Anthony 6467 Rockcliffe Estates Niagara Falls, ON L2J 4K7 Anthony Di Giacomo 500 DiBellonia, Tish 8444 Luray's Lane Niagara Falls, ON L2H 1 H4 Tish DiBellon''a 500 Diodati, Julie 2840 Olden Ave., Niagara Falls, ON L2J 4E2 Julie Diodati 200 Ciodati, Ryan & Jody 6709 Topaz Gres., Niagara Falls, ON L2,, 3H2 Ryan or Jody 500 Coobin, Dr. Stafford 4421 Queen Street Niagara Falls, ON L2E 2L2 Dr. Stafford Dobbin 500 Cuffus, Peter 121 County Road 6 RR2 Lakefield ON KOL 2H0 Peter Duffus 750 Focus Eyewear 4025 Dorchester Road Niagara Palls, ON ..2E 6N1 Shaun Fani 250 Fang -Ups 4424 Montrose Road, Niagara Falls, ON L2H 1 K2 Buddy Lowe 150 Holer, John 7885 Stanley Avenue Niagara Falls, ON L2E 6X8 John Holer 500 II Carpaccio 6840 '_undy's Lane Niagara Falls, ON L2G 1V6 Ron Hark mer 125 Jackiewicz, Dr Allan 4256 Portage Road, Suite103 Niagara Falls, ON L2E 6A6 Dr Allan Jackiewicz 250 Maloney Micnael 9145 Ridge Road, RR$ Welland, ON L36 5N7 Michael P Maloney 150 Matovic, Dragan 3626 Matthews Drive Niagara Falls, ON L2H 2Z1 Dragan Matovic 250 McDonald, Darnel J 4683 Queen St., PO Box 726, Niagara Falls, ON L2E 6V5 Daniel J. McDonald 200 Merani. Ashak 4 McClure Crescent Thorold, ON L2V 4B6 Ashak Merani 750 Muller, Henry 482 Ontario S. Ancaster. Ontario L9G 3E' Muller Henry 200 Nightmares Fear Factory 5631 Victoria Avenue, Niagara Falls, CN L2G 3L5 Frank LaPenna 200 Nowak, David 242 Rosedale Heights Drive Toronto, ON M4T 1E1 David Nowak 500 Cvers, Ian Overs, Ian 221 Ellis Ave Toronto, ON M6S 2X4 Ian Overs 750 Pel ow, Brian 2707 Mountaincrest Avenue Niagara Falls, ON L2J 4H8 Brian Pellow 500 PS DeLuca Investments 154 Margaret Ave Stoney Creek, ON L9G 3G8 Pat DeLuca 250 Rocca, James 3449 Cardinal Drive Niagara Fails, ON L2H 2X3 James Rocca 200 Schram, David 4701 St. Clair Ave, Suite 301 Niagara Falls, ON L2E 3S9 Schram, David 30C Sheppard, Mrs Dianne 8111 Forest Glen Drive Niagara Falls, ON L2H 2Y7 Dianre Sheppard 150 Taylor, Dr. Andrew 5400 Portage Road, Suite 504 Niagara Falls, ON L2G 5X7 Dr, Andrew W. Taylor 500 Tnistlewaite Yardworks 7652 Wayne Street Niagara Falls, ON L2H 1G6 Harry & Cyndi Thistlewaite 500 Vacca, Rocco 8873 Joseph Crt. Niagara Falls, ON L21-I 3P1 Rocco Vacca 200 Visentin, Louis & Mary 20 -5070 Drummond Road Niagara Falls, ON L2E 6E4 Lou Visentir 200 Vuksan, Ranko 7959 Oaxrdge Drve Niagara Falls, ON L2H 2W2 Ranko Vuksan 250 Walker, George F 4706 Queen St., P.O. Box 868, Niagara Falls, ON L2E 6V6 George F. Walker 500 Waters, Meredith, MacRae & Tchang, LLP 4607 Huron Street, Niagara Falls, ON L2E 2H6 George S Waters 200 Zarafonitis Julian 3634 Cardinal Drve Niagara Falls, ON L2H 2Y1 Julian Zarafonitis 500 15,275.00 o o o o 0 0 0 0 0 0 0 0 0 0 0 cr) 0 0 0 0 0 o o o 0 0 0 0 0 0 0 0 0 }, t) u) O uo O 1.0 0 to L() 0 0 V) 0 in O N I() 0 co 0 0 0 co 0 UC) u) co L() in in to 0 C N N c` ti L() N to N N N LO (V LC) e- M e- N N- N in I) fV NI. N N h N. ti N N CV C0 7 O E Q 'GI no ro C co H 03 CU C • C _ N U 7 0 0 m Q m y lb 0 — c 1 0 C -' U VJ C CI (0 y 7 0 7 O> . 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B P o o .-a 0 E CO 7 E E> > v o c a) U o 3 2 2 2 2 z Z Z Z Z Z Z Z Z Z O a d a n`- a cc cc Le cc cc cc cc cc cc co ' H 1-- H H 1 ° - 6 ° 0 0 C ' M CO 00 N @ E c N H 0 _c 0 m X z 0 @ f0 � z z r @ } f0 Z • z O CO z O c O O F- @ m i O H O 0) O iq 0 L M = O O � • N- c 0 O 2- O 0 o3? H 0 O 2 O 2 (1) b JB • , CHARTERED ACCOUNTANTS II IT: FR Ls Ltlyf,L_ - titrktif DURWARI) JONES BARKWELL INDEPENDENT AUDITORS' REPORT & COMPANY LLP 6100Thorold Stone Road, Unit 1, P.O. Box 873 Niagara Falls, Ontario L2E 6V6 To Dean Iodide, Clerk of the Corporation of the 905.357.5711 866.223.8459 Fax 905.357.7932 City of Niagara Falls in the Region of Niagara: nfalls @djb.com www.djb.com We have audited the financial statements of James Diodati Mayoral Campaign, which consists of the Statement of Assets and Liabilities as at December 31, 2010 and the Statements of Campaign Period Income and Expenses and of Determination of Surplus or Deficit and the Disposition of Surplus for the campaign period from January 21, 2010 to December 31, 2010 relating to the election held on October 25, 2010. Candidate's Responsibility for Financial Statements James Diodati, candidate, is responsible for the preparation and fair presentation of these financial statements in accordance with Canadian generally accepted accounting principles and for such internal control as the candidate determines is necessary to enable the preparation of financial statements that are free from material misstatement, whether due to fraud or error. Auditors' Responsibility Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with Canadian generally accepted auditing standards. Those standards require that we comply with ethical requirements and plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors' judgement, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to James Diodati Mayoral Campaign's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of James Diodati Mayoral Campaign's internal control. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of accounting estimates made by the candidate, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our qualified audit opinion. Basis for Qualified Opinion Due to the nature of the types of transactions inherent in an election campaign, it is impracticable through auditing procedures to determine that the accounting records include all donations of goods and services, and receipts and disbursements. Accordingly, our verification of these transactions was limited to ensuring that the financial statements reflect the amounts recorded in the accounting records of James Diodati Mayoral Campaign in accordance with the accounting procedures established by the Municipal Elections Act, 1996 and we were not able to determine whether any adjustments might be necessary to income and expenses, assets and liabilities, and surplus /deficit. As a result, these financial statements are intended solely for the Clerk of the Corporation of the City of Niagara Falls in the Region of Niagara and should not be distributed to, or relied upon by other parties. Qualified Opinion In our opinion, except for the possible effects of the matters described in the Basis for Qualified Opinion paragraph, the financial statements present fairly, in all material respects, the financial position of the James Diodati Mayoral Campaign as at December 31, 2010 and the income and expenses for the campaign period from January 21, 2010 to December 31, 2010 and the determination of surplus or deficit and the disposition of surplus in accordance Canadian generally accepted accounting principals as prescribed by the Municipal Elections Act, 1996. The Municipal Elections Act, 1996 does not require us to report, nor was it practicable for us to determine, that contributions reported include only those which may be properly retained in accordance with the provisions of the Municipal Elections Act, 1996. ) Ottp Vallkod, ohi k f Durward Jones Barkwell & Company LLP Big enough to know k Licensed Public Accountants SMALL ENOUGH TO CARE • March 14, 2011 BURLINGTON • FORT ERIE • GRIMSBY • HAMILTON NIAGARA FALLS • ST. CATHARINES STONEY CREEK WELLAND James Diodati 6542 January Drive, Niagara Falls, ON L2J 4J4 Niagara Compliance Audit Committee C/o Office of the City Clerk The City of Niagara Falls, City Hall, PO Box 1023 Niagara Falls, Ontario L2E 6X5 Dear Committee Members: Please accept this as our official response to the various Applications for Compliance Audit with respect to my Financial Statements and Auditor's Report from the 2010 Municipal Elections. Application from Mr. S. Badger. Section 81(1) of the Municipal Elections Act 1996 (the Act) states An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of this Act relating to election campaign finances may apply for a compliance audit of the candidate's election campaign finances. There are no such reasonable grounds provided within this application. We respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 1. This application addresses whether the use of the Financial Officer's office for official correspondence constitutes a contribution to the campaign. It is our contention that it does not. All campaigns must have an official address for the campaign. Regardless of whether we use the Candidate's address, the Campaign Manager's address or the Financial Officer's address, there is no contributory value. The Financial Officer's address was used to ensure that all Campaign Contributions were received and properly accounted for and that all supplier and vendor invoices were received and paid and properly accounted for. The above tasks are the responsibility of the Financial Officer and therefore use of his address does not constitute a contribution to the campaign. We respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 2. With respect to contribution limits, The Municipal Elections 2010 Guide (the Guide) states, The limitation applies whether the contribution consists of one large donation or is the total of a number of smaller contributions of money, goods or services from the same contributor or from related companies. No definition of related companies is provided. However Section 72 of the Act actually states, for the purposes of sections 66 to 82, corporations that are associated with one another under section 256 of the Income Tax Act (Canada) shall be deemed to be a single corporation. Section 69(1)(m) of the Act states that a candidate shall ensure that a contribution of money made or received in contravention of this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention; (emphasis added). It would appear that we may have accepted contributions in contravention of the Act. As recent reports in local media would indicate, we are not alone in this regard. If this be the case, it was not done with any willful or knowing intention to contravene the Act. We did not become aware of this possible contravention until this Application for Compliance Audit was received. Upon learning of this possible contravention, we acted swiftly to remedy it by returning the contributions as required by the Act (see attached). We submit to you that we are in fact in compliance with the Act as it states the contribution is to be returned "as soon as possible after the candidate becomes aware of the contravention" and we did not become aware of the possible contravention until the Application for Compliance Audit was received. We respectfully submit to you that this Application for Compliance Audit should therefore be rejected as we are in compliance with the Act. Application from Mrs. N. Tkachuk — Grounds 3. Section 76(2)(1.) states that expenses include The replacement value of goods retained by the person from any previous election and used in the current election. There was no inventory of metal posts from any previous election campaign. Therefore there is no inventory to include in the current campaign. We respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 4. This application refers to the valuation of the closing inventory. While the Guide offers Helpful Hints as to the valuation of closing inventory, the Act clearly indicates the sections that govern Election Campaign Finances are Sections 66 through 82. These sections are silent as to the valuation of closing inventory. An application for a Compliance Audit is valid when an elector believes on reasonable grounds that a candidate has contravened a provision of this Act relating to election campaign finances (emphasis added). As valuation of inventory is not covered by any provision of the Act relating to campaign finances, this Application is not a valid application. We respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 5. In this application, the applicant purports to challenge specific actual campaign expenses incurred by comparing them with estimates provided by the applicant that are based upon unsupported suppositions. In his decision in Difrancesca v.Vaughn (City), Justice H.I. Chisvin states "The obligation by (this committee) then is to determine if the elector is acting on mere conjecture or suspicion. Is this just a fishing expedition? If the elector is acting on conjecture, suspicion or merely proceeding on a fishing expedition, then that would not constitute reasonable grounds." Similarly, in Chapman v. Hamilton (City), Justice Culver accepted the following consideration from Justice Hill in R. v. Sanchez and Sanchez which stated "Mere suspicion, conjecture, hypotheses or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective." We suggest these challenges do indeed represent a "fishing expedition" and therefore do not constitute reasonable grounds. We respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 6. As in Grounds 5, the applicant offers a similar unsupported challenge to the actual campaign expenses incurred. Applying the standard established by Justice Chisvin in Difrancesca v.Vaughn (City), we suggest this again represents mere conjecture and speculation and does not constitute reasonable grounds. We respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 7. The applicant alleges that the use by Mr. Lou Vescio of an e- mail account that is his by way of office as Principal at Ridgeway Crystal Beach constitutes a contribution to the campaign by the District School Board of Niagara (DSBN) which is strictly prohibited by the Act. This is the only e-mail address that Mr. Vescio has or uses. It was used by him as a method of electronic communication in his capacity as Campaign Manager. As the date and time of this message clearly indicates, it was sent from his home, on Thanksgiving Day and therefore outside school hours, to known friends and acquaintances. In no way does it constitute a contribution by the DSBN nor does it represent any sort of endorsement by the DSBN. This challenge is unfounded and we respectfully submit that this Application for Compliance Audit should be rejected. Application from Mrs. N. Tkachuk — Grounds 8. In allegations similar to those in Applications - Grounds 5 and 6, the applicant speculates that the costs of setting up and maintaining the campaign website are too low. Again applying the standard established by Justice Chisvin in Difrancesca v. Vaughn (City), we suggest this again represents more speculation and conjecture. Such a "fishing expedition" does not constitute reasonable grounds. We respectfully submit that this Application for Compliance Audit should be rejected. In conclusion, we believe we have satisfactorily addressed all Applications for Compliance Audit and that we have successfully proven that they are either not within the scope of a Compliance Audit or do not constitute reasonable grounds to order a Compliance Audit. Therefore all the Applications should be rejected. We trust the Committee agrees with us and thank you for your time today. Sincerely urs, James Diodati, Candidate for the Office of Mayor, Election Campaign 2010 THE BACK OF THIS DOCUMENT CONTAINS A TD LOGO WATERMARK - DOCUMENT VOID IF MISSING The Toronto - Dominion Bank 56360205 I © Town & C'ountry' Plaza DATE 3643 Portage Road YYYYMMDD Niagara Falls, ON L2J 2K8 Transit - Serial No. r4 Pay to the + 8 Order of i t , � P - y 11) S in 0 0 1, w64/ T L';wT . w I 1 Canadian Dollars Authorized signature required for amounts ov> CAD, Re Cer-Zs fro. --j0 " 'Y'_z -t.-+� /.� � / `` Authorized Officer Number s The , Ontario mton Bank L` •� Toronto, Ontario E Canada M5K 1A2 Countersigned OUTSIDE CANADA NEGOTIABLE BY CORRESPONDENTS AT THEIR BUYING RATE FOR DEMAND DRAFTS ON CANADA II 56 36020SP 1:096L2...0041: •..380811' THE BACK OF THIS DOCUMENT CONTAINS A TD LOGO WATERMARK - DOCUMENT VOID IF MISSING The Toronto - Dominion Bank 56360206 I r l ° Town & Country Plaza DATE 3643 Portage Road YYYYMMDD Niagara Falls, ON L2J 2K8 Transit - Serial No. L , t., i , Pay to the + Order of f .. _ '.1 , I TD � 1 �, ;put IAA T ( 11,--,1 7 5 0.0 , It • Canadian Dollars Authoriz ••i signature required for amounts ov r CAD $5.000.00 i = Re L t1 1p i 'bt • Author Officer � r The Tor to -Do ten on k Number •`- ' Toronto, Ontario .r,,..411./ E Canada M5K 1A2 Countersigned / OUTSIDE CANADA NEGOTIABLE BY CORRESPONDENTS AT THEIR BUYING RATE FOR DEMAND DRAFTS ON CANADA 0' 56 3602060 1:096L21.'0041: •1.380811' THE BACK OF THIS DOCUMENT CONTAINS A TD LOGO WATERMARK - DOCUMENT VOID IF MISSING The Toronto - Dominion Bank 56360208 I �"� = Town & Country Plaza 3643 Portage Road DATE YYYYMMDD Niagara Falls, ON L.2J 2K8 Transit Serial No. Pay to the + E Order of _ $ . , , CANAD H US 7 o 5 ' 0 ! : " � . c ?. 1 * 1 � Canadian Dollars Authorized signature required for amounts ovv.CAD 55,000.00 1 - Re c' -r ti4em -7 y1 bG 4. G .":,/ The Toronto- Dommion Bank Authorized Officer — N b 45 Toronto, Ontario Canada M5K IA2 Countersigned OUTSIDE CANADA NEGOTIABLE BY CORRESPONDENTS AT THEIR BUYING RATE FOR DEMAND DRAFTS ON CANADA 0 ' 5 6 360 20130 1 :0 9 6 L 21 1.■ 3808u' • COURT FILE No.: Newmarket 07- 000486 DATE: 2008 -10 -07 Citation: Vaughan (City) v. Defrancesca et al., 2008 ONCJ 762 ONTARIO COURT OF JUSTICE (CENTRAL EAST REGION) BETWEEN: CARLO DEFRANCESCA, RICHARD LORELLO and ROBERT ZUCCARINI Appellants — AND — CITY OF VAUGHAN Respondent Before Justice H.I. Chisvin Judgment in Application pursuant to section 81(3.3) Municipal Elections Act on October 7, 2008 John Lo Faso, Fabio Soccol for the Appellants George Rust -D'Eye for the Respondent CHISVIN, J.: 111 The applicants are City of Vaughan residents who were entitled to vote in the November 2006, Municipal election. Mr. Bernie DiVona was elected a counsellor of the City of Vaughan in that election. As required by the Municipal Elections Act, Mr. DiVona filed a sworn and audited financial statement with respect to his election finances. [2[ The applicants, as allowed by the Act, reviewed the material filed by Mr. DiVona and subsequently made a request for a compliance audit. 2 131 A request was filed by the applicants with the Clerk of the City of Vaughan and as required by the Act, council considered the matter and denied the applicants' request for a compliance audit. As provided for by section 81(3.3) of the Municipal Elections Act, the applicants have appealed to this court, once again, requesting a compliance audit be ordered. The Nature of This Proceeding 141 Section 81(3.3) of the Municipal Elections Act reads: "The decision of the council or local board under subsection (3) and of a committee under subsection (3) pursuant to a delegation under subsection (3.1) may be appealed to the Ontario Court of Justice within 15 days after the decision is made and the court may make any decision the council, local board or committee could have made." 2002, c. 17, Sched. D, s. 32 (2). 151 The nature of an application under this section has been considered by the courts before. I agree with the decision of Justice Culver in Chapman v. Hamilton (City), [2005] O.J. No. 1943 (QL) (C.J.) where, after an extensive review of the law in this area, he held that the appellate court could examine the matter anew. 161 This, in my view, is consistent with the wording of section 81(3.3). The section provides for no limits on the nature of the appeal itself. For example, it does not say that this is an appeal of a question of law alone, nor of mixed law and fact. This section does not limit on its face, the appellate court to reviewing only the decision of the underlying tribunal, in this case council, in considering the reasonableness of that decision. Section 81(3.3) is broad in my view and it is clear that the responsibility of the appellate court is to examine the matter anew. 3 Test to be Applied 171 Section 81 of the Act provides that a compliance audit can be granted if the elector believes on reasonable grounds that a candidate has contravened the provisions of the Municipal Elections Act relating to finances. As put by Culver, J. at paragraph 41 of his decision, "In considering whether an application for compliance audit should be granted or rejected, Council must consider whether the elector has reasonable grounds to believe that a candidate has contravened a provision of The Act relating to campaign finances. " 181 The test then, is not if council believes there are reasonable grounds the Act has been contravened, but whether the elector had reasonable grounds to believe there had been a contravention. The obligation by council then is to determine if the elector is acting on mere conjecture or suspicion. Is this just a fishing expedition? If the elector is acting on conjecture, suspicion or merely proceeding on a fishing expedition, then that would not constitute reasonable grounds. On the other hand, reasonable grounds is not that high a burden of proof as is proof beyond a reasonable doubt. Thus it is clear that reasonable grounds to believe that the elections finance provisions of the Act have been violated is a low standard. It is not determinative of the outcome of the audit one way or another, nor is council's decision at this stage determinative. It is only a step to begin the investigative process and nothing more. It is not conclusory of any violation of the finance provisions of the Act at all. It is important to remember that this stage of the proceedings is merely to determine if an investigation should be started. It is a pre- investigatory stage. It is not a determination that the candidate has in any way actually violated the statute. Rather, what -4 council must decide is, and what this court must decide is, does the elector have reasonable grounds to believe that the candidate contravened the Act. It would then be a function of an auditor to investigate the matter. [9[ Section 81(6) requires the auditor to conduct an audit to determine if an individual has complied with the election financing provisions of the Act. If the auditor concludes that there has been a violation of the provisions of the Act, the auditor is required to submit a report setting out the apparent contraventions. [10] This would then complete the investigative aspect of the proceedings. The matter then goes back to council for consideration under the provisions of section 81 of the Act. 1111 I note as well, if the electorate is wrong, and the auditor finds no violation, then the electorate is at the risk of having to pay the costs of the auditor. There is, therefore, little or no down side to the municipality to have the matter looked into by an auditor. If there has been a violation then it should be properly investigated. If there has been no violation, then there would be no cost to the municipality as it is the electorates who must bear the cost of the audit. Are there Reasonable Grounds for the Electorate to Believe a Violation of the Campaign Finance Provisions of the Act have Occurred? [12] In the applicants' factum, seven issues are raised as being violations of the campaign finance provisions of the Act. Does any one raise a reasonable ground to believe a violation has occurred? -5 [13] The first issue of these seven issues relates to the contributions by the businesses apparently located at 71 Buttermill Avenue in Concord. Are there reasonable grounds to believe they are related companies on the face of the documents and on other readily available public information? [14] In my view, there are reasonable grounds to believe that they are associated companies. They clearly share the same address and have similar officers and directors. Additionally, the City of Vaughan website speaks of the president of one of the companies having started some of the other companies. [ 15] It appears that one of these companies is not even a valid corporation and thus may not be entitled to make a donation. [16] Given that the test is, are there reasonable grounds for the electorate to believe there has been a violation of the campaign finance provisions, on the face of it, it would be reasonable for an electorate to think there had been a violation. An investigation by an auditor looking below the surface may, indeed, determine that the appearance is incorrect. But that requires an investigation by a qualified individual. That is not the function of the council, nor the court at this stage of the proceedings. Once again, I want to make it very clear that an investigation of this nature is just that, an investigation and not a finding, or a conclusion of any actual wrong doing. Indeed, a thorough examination may show that there have been no wrong doings. That is a wholly different stage of the proceedings, however, [17] There are six other issues raised by the applicants in this factum with respect to this matter. I do not propose to review them in detail as it is not my function to determine the -6 ultimate veracity of each and every one of these matters. As I've said, it is my function, like that of council's, to determine only if there are reasonable grounds for the electorate to believe that there has been a violation of the campaigns finance provisions of the Act. In my review, given the seven issues raised, there are reasonable grounds to believe that there has been a violation of the finance provisions of the Municipal Elections Act and thus a compliance audit will be ordered. Released: October 7, 2008 Signed: "Justice H.I. Chisvin" FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Tracey Beatty, certify that this document is a true and accurate transcript of the recording of Carlo Defrancesca, Richard Lorello and Robert Zuccarini v. The City of Vaughan in the Ontario Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on October 7, 2008 taken from Recording No. 4911 -104- 429/2008, which has been certified in Form 1. Tracey Beatty, Court Reporter COURT FILE No's: 04- 6083 -97; 04- 6083 -98; 04- 6083 -99 Citation: Chapman v. Hamilton (City of), 2005 ONCJ 158 ONTARIO COURT OF JUSTICE BETWEEN: JOANNA CHAPMAN Appellant -and - CITY OF HAMILTON Respondent -and - LARRY DI IANNI Added Party Proceeding under the Municipal Elections Act, 1996, section 81 (3.3) Before Regional Senior Justice Timothy. A. Culver Heard at Hamilton, on February 7 8 11 th , 21 March 9 10 11 th , 2005 Eric K. Gillespie for the Appellant Peter A. Barkwell for the Respondent, City of Hamilton Jeff Levy and Jack Siegel for the Added Party, Larry Di Lanni - 2 Culver, Timothy A., J.: 1. This is an appeal from the decision of the Council of the City of Hamilton, sitting as the Committee of the Whole, on July 14, 2004, rejecting the Appellant's application for a Compliance Audit pursuant to s. 81 of the Municipal Elections Act, 1996 ( "The Act "). -. Thc appeal is brought pursuant to s. 81 (3.3) of The Act. 2. Thc relief sought by the Applicant, is for the decision of Council to be set aside, and for an order requiring a Compliance Audit pursuant to s. 81 of the Municipal Elections Act, 1996, of Larry Di Ianni, successful candidate for Mayor, of John Best and of Marvin Caplan, both unsuccessful candidates for aldermen, and other relief ancillary to the order for a Compliance Audit. FACTUAL BACKGROUND 3. The Appellant is an elector living in the City of Hamilton who was entitled to vote in the November 2003 Municipal election. 4. John Best, Marvin Caplan, and Larry Di Ianni stood as candidates in the November 2003 elections held in The City of Hamilton. 5. On June 23, 2004, the Appellant applied to the Clerk of the City of Hamilton, in writing, requesting Compliance Audits pursuant to s. 81 of The Act, of nine candidates in the election, among whom were the candidates that are subject of this appeal. Subsequent to commencing this proceeding, the appeal was withdrawn in relation to a number of candidates, leaving John Best, Marvin Caplan, and Larry Di Ianni, as candidates who would be subject to the order for Compliance Audit if the appeal were successful. 6. The notice of appeal and appeal books were served on all candidates who were subject to the request for Compliance Audit. John Best has not sought status before this court. Marvin Caplan sought and was granted status as an added party. He, however, withdrew his application to have added party status at the commencement of this appeal. His 3 — request was granted. Mr. Larry Di Ianni, the Mayor, sought and was granted added party status to this appeal. 7. The request for Compliance Audit, by the Appellant, alleged that there are a number of violations of the Municipal Elections Act together with a number of "probable" violations, disclosed in the candidate's financial statements and auditor's reports filed under s. 78 of The Act. 8. In the case of John Best, the Appellant alleges that Mr. Best had received $719.33 from the "Citizen Action Group ", a charitable organization under the Income Tax Act, which she alleges was ineligible to contribute to an election campaign; and $1000 from R. Denninger Ltd., a contribution over the donation limit of $750 set by The Act, although her request states "note that there is a $250 return to an unspecified contributor which may apply to this item ". 9. With regard to the candidate Marvin Caplan, the Appellant complained of $750 donations made by Renimob, Carling Building Co., and Effort Square, each of which, she alleges "cannot be traced as a corporation, but appears to be linked to Effort Trust." She further alleges that the total of any two of these donations "exceeds the allowable limit ". 10. With regard to the candidate Mr. Larry Di lanni, the Appellant alleges the following over- donations after review of the financial statement and auditor's report: Ramada Plaza Hotel, two donations totalling $1000; 456941 Ontario Ltd., three donations totalling $1100; Homelife Effect Realty Inc., three donations totalling $1250; Dival Developments Ltd., two donations totalling $1000; The Effort Trust Company, two donations totalling $900; Veneter Equipment Rental Inc., two donations totalling $900; A. DeSantis Holdings Ltd., A. DeSantis Development Ltd and A. DeSantis Real Estate Ltd, companies she alleges are related under s. 256 of the Income Tax Act, three donations totalling $1200; two donations, one from Pasquale Palletta and one from Pasquale Smith, each in the amount of $750, with the same address, which the Appellant alleges would appear to be the same person, and if so, the two donations would total 4 $1500; and three donations of $750 from each of three companies of which she alleges are all companies related to St. Lawrence Cement. 11. The Appellant further alleges 17 other instances of donations in excess of $750 made by entities that she alleges were either associated corporations under the income Tax Act, or companies that could not be traced as validly incorporated entities. She listed a donation from the Hamilton International Airport, Ltd., in the amount of $750, which she alleges was owned by the City of Hamilton and leased to Tradeport international. She also lists 14 donations from law firms, for which no individual contributor was identified, and an "in kind donation for rent, further raising the question of whether the cost of the rental space had been properly reported, and if the in kind donations exceed the allowable limit." 12. On Wednesday July 14, 2004, the Appellant attended the Committee of the Whole meeting of Hamilton City Council and was permitted to speak for five minutes. 13. The Committee of the Whole considered the Applicant's request for Compliance Audits, and voted to reject the request for audits. If anything can be taken from the "transcript" of the discussion of the Committee of the Whole, filed with consent of the parties, it's that councillors were reluctant to exercise their jurisdiction, to consider the request for Compliance Audit on its merits, because they did not want to be seen as "standing in judgement" of their colleagues. 14. The Applicant served and filed this appeal from the decision of Council. Subsequent to the filing of the appeal, Mayor Di Lanni commissioned a review of his corporate donations by Taylor Leibow LLP, "accountants and advisors ". Three hundred and thirty -four letters were sent, and 212 responses were received. In their report dated September 14, 2004, contained in the Evidence of the Added Party Brief, and filed on consent, they found "there were 24 corporations or groups of associated corporations that had exceeded the $750 limit and the total of the excess contributions was $10,950," and further, "there were a total of two individual contributors that had exceeded the $750 limit and the total of the excess contribution was $500." The list of contributors that was reviewed, involved all contributions made to the election campaign up to July 5 31, 2004. Without putting too fine a point on it, this "investigation" confirmed that many of the "violations ", alleged in the June 23 letter of complaint written by the Appellant were accurate. RELEVANT STATUTORY AND REGULATORY PROVISIONS 15. The obligation ofa candidate to file financial statements is contained in s. 78 of The Act, which provides in part: (1). On or before 5 p.m. on the filing date, a candidate shall file with the clerk with whom the nomination was filed a financial statement and auditors report, each in the prescribed form, reflecting the candidate's election campaign finances, (a) in the case of a regular election, as of December 31 in the year of the election; and (b) in the case of a by- election, as of the 45 day after voting day. 1996, c.32, Sched., s. 78 (1); 2000, c. 5, s.35(1); 2002, c. 17, Sched. D, s.29 (1) 16. Form 5, which is the form referred to in s. 78, contains, inter alia, a summary of campaign income and expenses, a statement of assets and liabilities, as at the date referred to in the form, a statement of determination of surplus or deficit and disposition of surplus, a statement of campaign period income and expenses, Schedule 1, listing contributions, Schedule 2, listing fundraising functions, and other schedules not germane to this analysis. 17. The auditor's report contains a declaration, which provides as follows: "i (candidate), a candidate in the Municipality of Hamilton, hereby declare that to the best of my knowledge and belief that these financial statements and attached supporting Schedules are true and correct." The declaration must be sworn by the candidate before the clerk or a commissioner. The report also contains an audit report, signed by a chartered accountant, which states, in paragraph 1, as follows: "These financial statements are the responsibility of (candidate), candidate. Our responsibility is to express an opinion of these financial statements based on my audit ", b — and further, "The Municipal Elections Act, 1996, does not require me to report, nor is it practical for me to determine, that contributions reported include only those which may be properly retained in accordance with the provisions with the Municipal Elections Act, 1996." 18. The statutory provisions of The Act, relevant to the making and receiving of contributions, as it relates to the issues in this appeal are as follows: 69. (1) A candidate shall ensure that ... (f) records are kept of, (i) the receipts issued for every contribution, (ii) the value of every contribution, (iii) whether a contribution is in the form of money, goods or services, and (iv) the contributor's name and address (I) proper direction is given to the persons who are authorized to incur expenses and accept or solicit contributions on behalf of the candidate (m) a contribution of money made or received in contravention of this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention; (n) a contribution not returned to the contributor under clause (m) is paid to the clerk with whom the candidate's nomination was filed 70. (1) A contribution shall not be made to or accepted by or on behalf of a person unless he or she is a candidate. 1996, c. 32, Sched., s. 70 (1). Who may contribute: (3) Only the following may make contributions: 1. An individual who is normally resident in Ontario. 2. A corporation that carries on business in Ontario. 3. A trade union that holds bargaining rights for employees in Ontario. (7) A contribution may be accepted only from a person or entity that is entitled to make a contribution. 1996, c. 32, Sched., s. 70 (7) 7 71. (1) A contributor shall not make contributions exceeding a total of $750 to any one candidate in an election. 1996, c. 32, Sched., s. 71 (1). 72. For the purposes of sections 66 to 82, corporations that are associated with one another under section 256 of the Income Tax Act (Canada) shall be deemed to be a single corporation. 1996, c. 32, Sched., s. 72. 74. (I) A contributor shall not make a contribution of money that does not belong to the contibutor. 1996, c. 32, Sched., s. 74 (2) 19. The obligation on the candidate to report accurately under s. 78 is imposed by the following section: 92. (5) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in paragraph 1 of subsection 80 (2), if he or she, (a) files a document under scction 78 that is incorrect or otherwise does not comply with that section. 20. The elector's rights and the obligations of Council, are contained in the following section: • 81. (1) An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of the Act relating to election campaign finances may apply for a compliance audit of the candidate's election campaign finances. 1996, c. 32, Sched., s. 81 (1). Requirements (2) The application shall be made to the clerk of the municipality or the secretary of the local board for which the candidate was nominated for office, within 90 days after the later of the filing date, the candidate's last supplementary filing date, if any, or the end of the candidate's extension for filing granted under subsection 80 (6), if any; it shall be in writing and shall set out the reasons for the elector's belief. 1996, c. 32 Sched., s. 81 (3). Decision (3) Within 30 days after receiving the application, the council or local board, as the case may be, shall consider the application and decide whether it should be granted or rejected. 1996, c. 32, Sched., s. 81 (3). Appointment of auditor -8— (4) If it is decided to grant the application under subsection (3), the appropriate council or local board shall, by resolution, appoint an auditor to conduct a compliance audit of the candidate's election campaign finances. 2002, c. 17, Sched. D, s. 32 (3). 21. This Court obtains its statutory jurisdiction over this appeal in s. 81 (3.3) which provides as follows: 81 ...(3.3) The decision of the council or local board under subsection (3) and of a committee under subsection (3) pursuant to a delegation under subsection (3.1) may be appealed to the Ontario Court of Justice within 15 days after the decision is made and the court may make any decision the council, local board or committee could have made. 2002, c. 17, Sched. D, s. 32 (2). NATURE OF THE APPEAL — STANDARD OF REVIEW 22. Counsel referred the Court to a number of cases regarding the Standard of Review I should apply, as a judge sitting on appeal of the decision of Council. It's of some interest to note that all counsel before me changed their position on this standard, some quite drastically, during the course of argument. I will now summarize the different approaches that I was urged to take, by reference to the cases referred to me. THE DICKASON TEST 23. Also referred to the University of Alberta v. Alberta (Human Rights Commission), Olive Patricia Dickason v. Governors of University of Alberta and Alberta Human Rights Commission, [ 1992] 2 S.C.R. 1103, a decision of the Supreme Court of Canada. This was an appeal by an employee from the judgement of the Alberta Court of Appeal reversing a judgement of the Court of Queen's Bench which upheld a complaint filed by Dr. Dickason under the Individual Rights Protection Act, and the decision of a board of inquiry which ruled in her favour on the complaint. 24. The pertinent legislation under the Individual's Rights Protection Act stated as follows: 9 33. (1) A party to a proceeding before a board of inquiry may appeal an order of the board to the Court of Queen's Bench by originating notice filed with the clerk of the Court of the judicial district in which the inquiry was held .... (6) The court may confirm, reverse or vary the order of the board and may make any order that the board can make under section 31. 25. It was submitted to me that although these appeal provisions are literally different than section 81 (3.3) of The Act, in substance they are identical. 26. In discussing the Standard of Review, Cory, J. wrote the following: 31. The principle of deference to findings of fact made at first instance has been to a large extent adopted in reviewing the decisions of administrative tribunals, although the standard of review of decisions made by administrative bodies will always be governed by their empowering legislation. Where the legislature has enacted a privative clause restricting review it has been held by this court that appellate courts must defer to a tribunal's finding of fact: see National Corn Growers Assn v Canada (Import Tribunal), [1990] 2 S.C.R 1324, 45 Admin. L.R. 161, 114 N.R. 81, 74 D.L.R. (4` 449, W. W. Lester (1978) Ltd. V U.A., Local 740, [1990] 3 S.C.R. 644, 48 Admin. L.R. 1, 76 D.L.R. (4 389, 91 C.L.L.0 14, 002, (sub nom. Planet Development Corp. v. U.A., Local 740) 123 N. R. 241, 88 Nfld. & P.E.I.R 15, 274 A.P.R. 15, and Gendron v. Supply & Services Union of the P.S.A.C., Local 50057, [1990] 1 S.C.R. 1298, [1990] 4 W.W.R 385, 44 Admin. L.R. 149, 109 N.R. 321, 66 Man. R, (2d) 81, 90 C.L.L.C. 14,020. 32. In Bell Canada v Canada (Radio- Television & Telecommunications Commission), [1989] 1 S.C.R. 1722, 38 Admin. L.R. 1, 60 D.L.R. (4`") 682, 97 N.R. 15 at p. 1746 [S.C.R.], this court further recognized that curial deference must be given to findings made within the field of specialized knowledge of an administrative decision- maker. 33. However, the situation is different where there is neither specialized skill and knowledge exercised by an administrative decision -maker not a statutory restriction imposed upon the court's review of those decisions. Here the I.R.P.A. has clearly indicated that a very broad standard of review would be appropriate to decisions rendered by a board of inquiry under the Act. Section 33 (2) provides that a party may appeal a decision of the board on questions of fact or mixed fact and law with the leave of a judge of the Court of Queen's Bench. In the case at bar, Murray J. granted leave for an appeal on the facts. On a plain reading of the I.R.P.A., it is clear that the legislature specifically intended that appellate courts should examine the evidence anew and, if deemed appropriate, make their own findings of fact. Under this Act, no particular deference is owed by the Court of Appeal to the findings of initial trier of fact. This court possesses the same statutory jurisdiction as the Court of' Appeal. 10 34. In support of this position I would note that the provision for appeal in the I.R.P.A. is similar to that in the Ontario Human Rights Code (formerly R.S.O. 1970, c. 318), which this court considered in Etobicoke, supra. The statutory basis for an appeal from the Ontario Board of Inquiry is found in s. 42(3) of the Human Rights Code, R.S.O. 1990, c. H. 19. It provides for an appeal on any question of law or fact and states that the court may substitute its opinion for the board. In Etobicoke, McIntyre, J. held that this section (then s 14d(4)) granted an appellate court broader powers to review findings of the trier of fact than exist at common law. The wording of s. 42 (3) of the Ontario Code is more explicit than that found in s. 33(2) of the I.R.P.A. However, the import of the two sections must be the same, as the right to an appeal on questions of fact would be meaningless if the appellate court were not empowered to substitute its own opinion for that of the board. Nor is this a situation in which the administrative decision -maker possesses a specialized expertise which would merit curial deference. It can be seen that the I.R.P.A. grants the Court of Appeal and thus this court the jurisdiction to make findings of fact based on a review of the evidence on the record, without deferring to the conclusions drawn by the Board of Inquiry. THE NANAIMO TEST 27. Counsel referred to Nanaimo (City) v. Rascal Trucking Ltd. (2000) 1 S.C. R. 342. This was an appeal from the Court of Appeal for British Columbia. The decision under appeal was a resolution from the City Council of Nanaimo, passing a resolution declaring a pile of soil a nuisance pursuant to section 936 of The Municipal Act, and ordering the company and its lessor to remove it. Justice Majors considering, "upon what standard must the Appellant's decision be reviewed ?" found that the test on issues of jurisdiction and questions of law was one of correctness. When considering the tests, he wrote the following: 30. A consideration of the nature of municipal government and the extent of municipal expertise further militates against a deferential standard on the question of jurisdiction. Furthermore, these factors reflect the institutional realities that make municipalities (page 356) creatures distinct and unique from administrative bodies. 31. First, in contrast to administrative tribunals, that usually adjucate matters pertaining to a specialized and confined area, municipalities exercise a rather plenary set of legislative and executive powers, a role that closely mimics that of the provincial government from which they derive their existence.... 32. Second, municipalities are political bodies. Whereas tribunal members should be and are generally, appointed because they possess an expertise within the scope — 11 of the agency's authority, municipal councillors are elected to further a political platform. Neither experience nor proficiency in municipal law and municipal planning, while desirable, is required to be elected a councillor. Given the relatively broad range of issues that a municipality must address, it is unlikely that most councillors will develop such a special expertise even over an extended time. Finally, as opposed to administrative tribunals, council decisions are more often by- products of the local political milieu than a considered attempt to follow legal or institutional precedent. To a large extent council decisions are necessarily motivated by political considerations and not by an entirely impartial application of expertise. (Emphasis mine) 33. The fact that councillors are accountable at the ballot box, is a consideration in determining the standard of review for intra vires decisions but does not give municipal councillors any particular advantage in deciding jurisdictional questions in the adjudicative context. As a result, the courts may review those jurisdictional decisions on a standard of correctness. 37. I find these comments equally persuasive in the scrutiny of municipal resolutions. The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness. THE SOUTHAM TEST 28. The Supreme Court of Canada dealt with this issue again in Canada (Director of Investgations & Research) v. Southam Inc. [ 1997] 1 S.C.R. 748. This appeal related to a decision of the Competition Tribunal relating to the acquisition of a community newspaper. 29. Iacobucci, J., in writing for the Court, stated inter alia as follows: F. The Standard: 54. In my view, considering all of the factors I have canvassed, what is dictated is a standard more deferential than correctness but less deferential than "not patently unreasonable" ... Because the expertise of the Tribunal, which is the most important consideration, suggests deference, a posture more deferential than exacting is warranted. 55. I wish to emphasize that the need to find a middle ground in cases like this one is almost a necessary consequence of our standard -of- review jurisprudence. 12 Because appeal lies by statutory right from the Tribunal's decisions on questions of mixed law and fact, the reviewing court need not confine itself to the search for errors that are patently unreasonable. The standard of patent unreasonableness is principally a jurisdictional test and, as I have said, the statutory right of appeal puts the jurisdictional question to rest ... But on the other hand, appeal from a decision of an expert tribunal is not exactly like appeal from a decision of a trial court. Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For the reasons alone, review of the decision of a tribunal should often be on a standard more deferential than corrcctness. Accordingly, a third standard is needed. 56. I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination... 57. The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable... ANALYSIS OF STANDARD 30. I find the "Dickason Test" to be the appropriate approach to the Standard of Review when considering counsel's position in this case. 31. There is no privative clause in The Act, nor do I find is there specialized skill and knowledge exercised by Council, precursors to the requirement that deference be shown to Council's decisions under The Act set out in Dickason. 32. I find the Standard of Review in Dickason, although different in language, is functionally indistinguishable from the standard articulated in s. 81 (3.3) of The Act. 33. I acknowledge that municipal bodies are treated differently than Tribunals in the case law. The "Nanaimo Test" states clearly that "Council decisions are more often by- products of the local political milieu than a considered attempt to follow legal or 13 institutional precedent. To a large extent Council decisions are necessarily motivated by political considerations and not by an entirely impartial application of expertise." (32) 34. This same thread is found in the "Southam Test", which states, " Because the expertise of the Tribunal, which is the most important consideration, suggest deference, a posture more deferential than exacting is warranted." 35. The Southam and Nanaimo Tests cause me to ask two questions: firstly, is the test to be applied by Council in the making of its "decision" pursuant to s. 81(3) of The Act manifestly political, and secondly, does City Council have any particular expertise in applying The Act? 36. The answer to the first question, I find is clearly "No ". I find that the issue to be determined, namely whether or not the elector has reasonable grounds to believe that a candidate has contravened a provision of The Act relating to campaign finances, is a question of mixed fact and law. Political considerations, in their highest sense, the creation of public policy as the political will of the citizens of the City, or in the lowest sense, political opportunism fed by ambition, have no place to play in such an analysis. The order for Compliance Audit is not dispositive. It may be that political considerations are appropriate when considering the laying of charges, should the audit determine misfeasance, but not at this stage. 37. I would answer the second question "No" as well. There is nothing to indicate that Council would have any expertise in interpreting The Act, which has taken numerous days of submissions by counsel on this appeal. In addition, 1 note that Council in its debate, did not consider the merits of the application as it relates to the provisions of The Act, but, applied a political consideration, namely the unwillingness to judge their peers, and therefore dismissed the application with the desire to have the court make the ultimate decision. This debate, I find, amounts to a failure or refusal to meaningfully exercise jurisdiction, although none of the parties submitted I should take this position in my deliberations. THE ACT AS A COMPLETE CODE 14 38. The parties all have submitted to me that The Act, particularly s. 81, is a complete code of procedure for any elector who alleges campaign finance wrongdoing by candidates and elected officials. In support of this position, I have been referred to R v. Hall [2003] O.J. No. 3163, a decision of Trafford J. At paragraph 21 of the decision he writes: [para2 l ]. Given the Legislative intention, that is, to ensure the legitimacy of attacks on elected officials and, I infer, other candidates, by electors, it is my view that s. 81 of the Act is, in its purpose and effect, a provision to screen allegations by electors of election campaign finance wrongdoing by candidates and elected officials, especially where the allegations are determined by an auditor and /or a council to be frivolous, vexatious, or otherwise devoid of merit. I accept that conclusion without reservation. 39. Having found that s. 81 represents a "complete code" I address a position taken by counsel for Mr. Di Ianni. Counsel urged me to find that the ordering of an audit is an exceptional remedy under The Act. Accepting as I do the propositions in R. v Hall, T conclude that if the elector is found to have had reasonable grounds to believe that a candidate had contravened a provision of the Act relating to campaign finances, an audit is the only remedy available. Although the order for an audit is not despositive of any ultimate issue, failure to order an audit is a complete bar to any further proceedings for any breach alleged by an elector relating to election campaign finances. It is unequivocally a condition precedent. OBLIGATIONS OF A CANDIDATE 40. The Appellant argues that a candidate who accepts contributions from individual contributors in excess of $750 is in violation of The Act. The Act makes it clear in s. 71(1) that a contributor cannot make any contributions in excess of a total of $750. There is no corresponding statement with that level of clarity as it relates to the obligation of a candidate not to accept such donations. The Appellant argues that s. 69 (1m) which refers to "a contribution of money made or received in contravention of this Act" creates an obligation on the candidate not to accept donations in total worth more than $750 from any one contributor. With respect, I disagree. If Parliament wished to 15 create an obligation not to accept contributions of more than $750 it had the clear opportunity to do so. It would not, in my view, be appropriate to torture the wording of s. 69 (1m) to create an obligation which is not clearly present. S. 69 (1m) only requires a candidate to return to the contributor any contribution exceeding a total of $750, or any other contribution received in contravention of The Act as soon as possible. THE EXISTENCE OF REASONABLE GROUNDS The Standard 41. In considering whether an application for compliance audit should be granted or rejected, Council must consider whether the elector has reasonable grounds to believe that a candidate has contravened a provision of The Act relating to campaign finances. In dealing with the definition of "reasonable grounds ", albeit in different circumstances, in R. v. Sanchez and Sanchez 93 C.C.C. (3d) 357, Justice Hill, at page 10 stated the following: Section 487(1) of the Criminal Code requires reasonable grounds as the standard of persuasion to support issuance of a search warrant. Judicially interpreted, the standard is one of credibly based probability ... Mere suspicion, conjecture, hypotheses or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognised that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case ... The appropriate standard of reasonable or credibly based probability envisions a practical, non - technical and common sense probability as to the existence of the facts and inferences asserted. 42. 1 find no reason not to apply that standard to the test in this case. THE OBLIGATIONS TO RETURN CONTRIBUTIONS "AS SOON AS POSSIBLE" 43. It is clear that s. 69 (lm) creates an obligation on the candidate to return a contribution made in contravention of The Act "as soon as possible" after the candidate becomes aware of the contravention. In my view, "as soon as possible" has a different meaning 16 than "immediately" or "forthwith ". In my view the term must be viewed in relation to the thing that is required to be done, and may vary from circumstance to circumstance. In this case, what is required to be done after learning of the over - contribution, is that instructions must be given to a person with signing authority over the candidate's accounts, and a cheque must be sent to the contributor. In my view, that suggests a relatively simple process, not involving much delay. ANALYSIS OF THE JUNE 23 APPLICATION CANDIDATE JOHN BEST 44. With regard to candidate John Best, the Complainant raises two issues; firstly, the over contribution by R. Denninger Ltd., although she states "note there is a $250 return to an unspecified contributor which may apply to this item" and secondly, a contribution by Citizen Action Group, a charitable organization under the Income Tax Act which is ineligible to contribute. An examination of the Form 5 statement discloses only one donor having contributed more than $750, and a refund in amount of $250. There is no way to determine if the two are connected. This leaves reasonable grounds to believe that the candidate did not refund an excess donation as soon as possible. The later filing of a letter submitted by Mr. Best on this issue only reinforces this conclusion. In addition, the Appellant complained of a donation made to Mr. Best by a charitable organization, a clear violation of The Act. Had I applied the test, in either Nanaimo, or Southam, I would have found it patently unreasonable for the City Council, Committee of the Whole, to refuse an application for Compliance Audit on these facts. 45. Under s. 70(3) of The Act, there are reasonable grounds to believe that the candidate John Best has contravened a provision of The Act relating to election campaign finances. Accordingly, with regard to the candidate John Best, the appeal is allowed, and the matter is remitted to the Council of the City of Hamilton, Committee of the Whole, to appoint an auditor to conduct a Compliance Audit of the candidate John Best's campaign finances for the 2003 Municipal Election. CANDIDATE MARVIN CAPLAN 17 46. In her letter June 23, the Appellant complains of donations to Mr. Marvin Caplan from three contributors, namely Renimob, Carling Building Co., and Effort Square. She asserts that none of these could be traced as a corporation but appear to be linked to Effort Trust. Although the allegation of a relationship with Effort Trust is underdeveloped, none of these contributors appear to be lawful contributors pursuant to s. 70(3) of The Act, and accordingly there are reasonable and probable grounds to believe that the candidate Marvin Caplan has contravened a provision of The Act relating to election campaign finances. A letter dated February 20, 2005 was filed on this appeal relating to the campaign contribution of the Carling Co. Tenancy. I have no way of ascertaining if this is the same contributor as Carling Building Co, but in any event, this would have no impact given that an unincorporated group still could not contribute under s. 70 of the Act. Had I applied the test, in either Nanaimo, or Southam, I would have found it patently unreasonable for the City Council Committee of the Whole to refuse an application for Compliance Audit on these facts. 47. Under s. 70(3) of the Act, there are reasonable grounds to believe that the candidate Marvin Caplan has contravened a provision of The Act relating to election campaign finances. Accordingly, with regard to the candidate Marvin Caplan, the appeal is allowed, and the matter is remitted to the Council of the City of Hamilton, Committee of the Whole, to appoint an auditor to conduct a Compliance Audit of the candidate Marvin Caplan's campaign finances for the 2003 Municipal Election. CANDIDATE LARRY DIIANNI 48. With regard to candidate Larry Di Ianni, the Appellant identified in her letter six instances where the candidate received over - contributions from corporate donors. The issue for me is whether or not the candidate has complied with his obligation under s. 69(I m) of The Act, to return the contribution to the contributor as soon as possible after the candidate becomes aware of the contravention. The candidate's filing in Form 5 was sworn on March 31, 2004. The period covered by the filing ended December 31, 2003. All of the over - contributions were easily identifiable in the filing. The candidate swore a declaration confirming that the Schedules, which reveal this over - contribution, were — 18 true and correct. The candidate had a statutory obligation pursuant to s. 69 to ensure the accuracy of the record. The elector, I find, had reasonable and probable grounds to believe, that the candidate was aware of the over - contributions and had not returned the funds as soon as possible, a contravention of The Act. Had I applied the test, in either Nanaimo, or Southam, I would have found it patently unreasonable for the City Council Committee of the Whole to refuse an application for Compliance Audit on these facts. 49. I find that the elector had reasonable and probable grounds to believe that the candidate Larry Di lanni had contravened a provision of The Act relating to election campaign finances. Accordingly, with regard to the candidate Larry Di Lanni, the appeal is allowed, and the matter is remitted to the Council of the City of Hamilton, Committee of thc Whole, to appoint an auditor to conduct a Compliance Audit of the candidate Larry Di Ianni's campaign finances for the 2003 Municipal Election. 50. In addition to these alleged breaches of The Act, the application by the Appellant discloses a number of allegations that would have prompted me to make the same finding. These arc: 1. Contributors who are not individuals, who are clearly not corporations, and are not otherwise allowed to contribute by virtue of s. 70 (3) of The Act. 2. Donations identified as coming from the same source, exceeding the allowable limit (Voortman). 3. Fourteen law firms that made donations, rather than as individuals, in contravention of The Act. 51. I would not extend the obligations of the candidate as far as the Applicant has urged me, requiring candidates to do corporate searches of the "non- individual" contributors or on the candidate to make inquiries of every corporate donor as to whether or not it is an associated corporation to another donor under the Income Tax Act, unless there is some compelling reason, for example a similar corporate name, to do so. 52. Counsel for Mr. Larry Di Ianni urged me to accept that thc Taylor Leibow investigation is evidence of the candidate's good faith, and is also indicative of the adequacy of the 19 candidate's reporting. Counsel submitted that I should apply the result of the report to the "reasonableness" of ordering what they view to be an "extraordinary" remedy, namely a Compliance Audit. 53. I note that Taylor Leibow sent 334 letters and received 212 responses, a response rate of only 63 %. I also note that the Taylor Leibow investigation disclosed that the Appellant was accurate in the majority of the issues she raised, even on the limited information available to her, in her request for Compliance Audit. 54. Counsel for the Appellant submits that I should not allow this appeal to be turned into an audit, a proposition with which I agree. Both the Taylor Leibow audit, and most importantly, the Appellant's request for a Compliance Audit, discloses a pattern in the receiving, recording and handling of election contributions to this campaign, that may have resulted in a failure to comply with the provisions of the Municipal Elections Act. It is thc duty of this court to consider the grounds for thc request for Compliance Audit, not to become the auditor. It should not be taken from these reasons, however, that I have made a finding of malfeasance against any of the candidates whose election campaign finances are the subject of this order. CONCLUSION The Appeal is allowed. A Compliance Audit is ordered pursuant to section 81 of The Act with regard to the campaign finances for the 2003 Municipal Election of John Best, Marvin Caplan and Larry Di Lanni. The matter is remitted to the Council of the City of Hamilton to appoint an auditor, who will conduct an audit as required by section 81(6) of The Act, and will report to those parties as required by section 81(7) of The Act. Counsel may address the issue of costs, if they see fit, in court, by appointment. 20 Released: May 13, 2005 Signed: "Justice Timothy A. Culver" Report to/Rapport au : Council Conseil 22 Jun 2011 / le 22 juin 2011 Submitted by /Soumis par : Douglas Wallace, Meetings Investigator/ Enqueteur pour les reunions Contact Person /Personne resource: Douglas Wallace, Meetings Investigator / Enqueteur pour les reunions (613) 789 -2166, doug.wallace @rogers.com City Wide /a 1'echelle de la Ville RefN °:ACS2011 -CMR- LEG -0017 SUBJECT: REPORT OF THE MEETINGS INVESTIGATOR REGARDING THE FIRST MEETING OF THE ELECTION COMPLIANCE AUDIT COMMITTEE HELD ON APRIL 18, 2011 OBJET : RAPPORT DE L'ENQUETEUR SUR LA PREMIERE REUNION DU COMITE DE VERIFICATION DE LA CONFORMITE POUR LES ELECTIONS, TENUE LE 18 AVRIL 2011 REPORT RECOMMENDATION(S) That Council receive the attached report and approve the recommendations included therein. RECOMMANDATION(S) DU RAPPORT Que le Conseil prenne connaissance du rapport ci -joint et approuve les recommandations qu'il contient. BACKGROUND On November 28, 2007, City Council approved the establishment of a Meetings Investigator position to investigate complaints regarding the propriety of closed meetings held by City Council, a local board, or a committee of either. The Meetings Investigator, Mr. Douglas Wallace, was retained by the City on January 14, 2008 and his appointment was reconfirmed as part of the 2010 -2014 Governance Review. As part of his mandate, Mr. Wallace acknowledges receipt of requests for an investigation, conducts the investigation and reports his findings and any recommendations to an open meeting of Council. DISCUSSION In accordance with his mandate, and upon receipt of a request for investigation, the Meetings Investigator conducted an investigation of the closed meeting held by the Election Compliance Audit Committee on April 18, 2011. The Election Compliance Audit Committee was established by City Council on July 14, 2010 as prescribed by Section 81.1 of the Municipal Elections Act, 1996. The Committee is responsible for reviewing and making decisions on applications for compliance audits related to the 2010 Municipal Election. Under the Municipal Elections Act, 1996, any eligible elector who believes on reasonable grounds that a candidate has contravened election campaign finance rules has the right to request a compliance audit of the candidate's election campaign finances. The City Clerk and Solicitor has reviewed the report of the Meetings Investigator and concurs with his findings and recommendations. Staff can advise that the Chair and Vice -Chair of the Election Compliance Audit Committee were provided with additional training on April 27, 2011 and further training for all Committee members will be arranged. Upon Council approval, the City Clerk and Solicitor will prepare a revised Rules of Procedure for the Election Compliance Audit Committee, incorporating the recommendations of the Meetings Investigator. RURAL IMPLICATIONS There are no rural implications associated with this report. CONSULTATION As part of his investigation, the Meetings Investigator conducted interviews with the City Clerk and Solicitor, the Deputy City Clerk and all members of the Election Compliance Audit Committee. COMMENTS BY THE WARD COUNCILLOR(S) N/A LEGAL IMPLICATIONS There are no legal implications associated with this report. RISK MANAGEMENT IMPLICATIONS There are no risk management implications associated with this report. FINANCIAL IMPLICATIONS There are no financial implications associated with this report. TECHNOLOGICAL IMPLICATIONS There are no technological implications associated with this report. CITY STRATEGIC PLAN N/A SUPPORTING DOCUMENTATION Document 1: Report of the Meetings Investigator regarding the First Meeting of the Election Compliance Audit Committee held on April 18, 2011. DISPOSITION Upon Council approval, staff in the City Clerk and Solicitor Department will prepare a revised Rules of Procedure for the Election Compliance Audit Committee, incorporating the recommen- dations of the Meetings Investigator. DOCUMENT 1 Report of the Meeting Investigator regarding the First Meeting of the Election Compliance Audit Committee, held on April 18, 2011. BACKGROUND Council appointed a Meeting Investigator as required by the Municipal Act on November 28, 2007 and extended his appointment for the 2010 -2014 Term of Council on December 8, 2010. The Meeting Investigator is independent of Council and reports his findings directly to Council. His function is to investigate in a confidential manner, any complaint that the municipality or a local board of the municipality has failed to comply with the open meeting provisions of the Municipal Act or its own procedure by -law. THE COMPLAINT On April 26, 2011, the Meeting Investigator received a complaint indicating that the newly formed Election Compliance Audit Committee ( "the Committee ") had gone into closed session at its first meeting on April 18` immediately following a request by counsel retained by the Candidate in the recent municipal election for an adjournment of the hearing. The Complainant indicated that he believed the Committee based its decision to grant a two week adjournment on irrelevant and improper considerations. In particular, the Complainant alleged that the Committee's decision to grant a two week adjournment was motivated by a desire to save embarrassment to a named candidate in the approaching federal election. THE MEETING INVESTIGATOR'S JURISDICTION As a preliminary matter the Meeting Investigator looked at the legislation and Council proceedings establishing the Committee to determine whether the Committee falls under the Meeting Investigator's jurisdiction. The jurisdiction of the Meeting Investigator is limited to a review of the procedure followed by municipal councils and "local boards ". A review of the Municipal Elections Act, 1996 and Council proceedings of May 10 and July 14, 2010 indicates that, while called a committee, the Election Compliance Audit Committee does not meet the definition of a "committee" in section 238 of the Act. It does, however, fall within the exceptionally wide definition of a "local board" found in section 1 of the Act. This definition is as follows: "local board" means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority. As section 239(1) applies to meetings of all local boards as defined above, its procedure falls squarely under the jurisdiction of the Meeting Investigator. THE INVESTIGATION In the conduct of his investigation, the Meetings Investigator reviewed the Committee's Agenda for its first meeting on April 18, 2011 and the Report to the Committee from the City Clerk and Solicitor dated April 8, 2011 which included the Request for a Compliance Audit and an Extract from the Municipal Elections Act. The Meeting Investigator also listened to the taped recording of the open session of thc meeting and read the record of the in camera session. Interviews were then conducted with thc City Clerk and Solicitor, the Deputy City Clerk and all members of the Committee. The Complainant declined the Investigator's invitation to elaborate further on his written Request for investigation. RULES GOVERNING THE COMMITTEE'S PROCEDURE The procedure of the Committee is governed by the procedure set out in section 239 of the Municipal Act and the Rules of Procedure adopted by the Committee at its first meeting. 1. The Procedure set out in section 239 of the Municipal Act 239 MEETINGS OPEN TO THE PUBLIC — Except as provided in this section, all meetings shall be open to the public. EXCEPTIONS (2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is, (a) the security of the property of the municipality or local hoard; (h) personal matters about an identifiable individual, including municipal or local hoard employees; (c) a proposed or pending acquisition or disposition of land by the municipality or local hoard; (d) labour relations or employee negotiations; (e) litigation or potential litigation, including rnatters before administrative tribunals, affecting the municipality or local hoard; (1) advice that is subject to solicitor - client privilege, including communications necessary fhr that purpose; (g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25„c. 239 (2). OTHER CRITERIA (3) A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, hoard, commission or other body is the head of an institution for the purposes of that Act. 2001, c. 25„c. 239 (3). EDUCATIONAL OR TRAINING SESSIONS (3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied: 1. The meeting is held for the purpose of educating or training the members. 2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision - making of the council, local hoard or committee. 2006, c. 32, Sched. A, s. 103 (1). The Act also contains the following procedural requirement to be followed when deciding to move in camera. RESOLUTION (4) Before holding a meeting or part of a meeting that is to he closed to the public, a municipality or local hoard or committee of either of them shall state by resolution, (a) the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting; or (h) in the case of a meeting under subsection (3.1), the fact of the holding of the closed meeting, the general nature of its subject- matter and that it is to he closed under that subsection. 2001, c. 25, s. 239 (4); 2006, c. 32, Sched. A, s. 103 (2). 2. The Rules of Procedure Adopted by the Committee Both the Municipal Elections Act and section 238 of the Municipal Act require the Committee to have its own "administrative practices and procedures" in the words of the Municipal Elections Act or "procedure by -law" in the words of the Municipal Act. The Rules of Procedure adopted by the Committee meet this requirement. Section 6 of the Rules of Procedure adopted by the Committee expressly incorporates the open meeting provisions of the Municipal Act in the following words: 6. MEETINGS (6) Meetings of the Committee shall, subject to the exceptions found in the Municipal Act, 2001, be open to the public. As many of the exceptions to the open meeting rule set out in section 239 (1) of the Municipal Act are unlikely to apply to matters coming before the Committee, the drafters of the Committee's Rules of Procedure took the prudent step of attempting to simplify these requirements when it drafted section 17. PART III DELIBERATIONS AND RENDERING A DECISION 17. DELIBERATIONS (I) Deliberations shall be open to the public except as follows: a) At any time where the Committee wishes to receive legal advice from Committee Counsel that is subject to solicitor- client privilege. b) At any time where the Committee, faced with personal matters about an identifiable individual, is of the opinion that such personal matters may he disclosed at the meeting hut where the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the general principle that the meeting he open to the public. (2) A motion to close a meeting or part of a meeting to members of the public shall state: a) The fact of the holding of the closed meetings; and h) The general nature of the matter to be considered at the closed meeting by reference to the specific issue to he considered at the closed meeting. In the Meeting Investigator's opinion the resulting wording adequately sets out the only exceptions in the Municipal Act which would likely arise before the Committee. The wording also goes a step further, and incorporates almost all of those provisions going beyond the Act's minimum requirements which Council has approved in its own Procedure By -law. The one apparent omission is Council's procedure for rising and reporting set out in subsection (13) (7) of the Procedure By -law. The Investigator has considered, and rejects, the suggestion that the Committee's procedure is also governed by the provisions of the Statutory Powers and Procedure Act' and the City's Procedure By -law 1 The Meeting Investigator concurs with the opinion expressed by one member of the Committee that the Committee was not exercising a "statutory power of decision" when deciding whether to grant or reject an application for an audit, as no legal right of any person or party was before the Committee for final decision. Nor was it required by law to hold a hearing. At this stage of the proceedings at any rate, it was performing an investigatory or administrative role rather than a judicial one. Any doubt in this regard is removed by section 3(2) of the Act which states that the Act does not apply to proceedings of "onc or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to THE PROCEDURE FOLLOWED BY THE COMMITTEE Immediately following a slide presentation by the City Clerk and Solicitor outlining the duties and procedure to be followed by the Committee, the Committee convened its first meeting. The first two items on the agenda were the appointment of a Chair and Vice -Chair and the adoption of the Rules of Procedure. The next item was the substantive matter of the application by an elector for an audit of the campaign expenses of a successful candidate in the November municipal election. The candidate was not present but was represented by counsel who requested an adjournment (or more accurately, a deferral) of the item due to a lack of opportunity for counsel to prepare for the hearing. The Chair first announced that the Committee would retire for five minutes to consider the matter. When someone indicated that a motion to resolve in camera would be in order, the Chair asked a member to make the motion. With the assistance of staff from the Clerk's office, member Assclin then moved: That the Election Compliance Audit Committee resolve in camera pursuant to Rule 7 (a) Solicitor - Client privilege and (b) personal matters concerning an identifiable individual to consider matters relating to the consideration of matters in relation to the Application by [the named Applicant) and the request to defer this item. One member questioned the need to resolve in camera to discuss an adjournment but his well - intentioned question went unanswered and the motion was immediately put to a vote. The motion then carried with one dissent. While in closed session the Committee received some advice from its independent counsel. The recollection of various members differs, but the advice may have consisted of a simple explanation of what the Rules of Natural Justice are, or may have gone further and indicated what effect these Rules had on the application for adjournment which was before them. The closed session concluded with a discussion of members' agendas and dates when all members would next be available for another meeting. There is no indication that in discussing the request whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make ". Section I of the By -law provides that "the proceedings of Council and the Committees thereof. _shall be governed by the provisions of the Municipal Act and the rules and regulations contained in this By- law ". Although this committee was created BY Council, it is not a committee OF Council, and the provisions of this by -law therefore do not govern the proceedings of this committee unless specifically incorporated in the Committee's own Rules of Procedure. for an adjournment, the Committee gave any consideration to the effect the Committee's decision might have on the Candidate, or anyone not a party to the proceedings before them. When the Committee resumed in open session there was no report by the Chair of what had transpired in closed session. Rather, the Chair immediately advised that the Committee was ready to make its decision or had made its decision, (it is not clear which), and asked the Applicant and counsel for the Candidate if they wished to make any further submissions. When no further submissions were forthcoming, a member moved the meeting be adjourned to May 3 at 4 o'clock in the afternoon. This Motion carried unanimously. COMMENTS ON THE COMMITTEE'S PROCESURE A. The Motion to go in camera The provision in the Municipal Act that a motion be passed prior to going in camera requires that the motion state the general nature of the subject matter to be discussed. The Rules of Procedure adopted by the Committee go slightly further in requiring (like Council's Procedure By -law) that the motion reveal not only "the general nature" of the matter to be considered but also the "specific issue" to be considered. The motion passed by the Committee stated the general nature of the matter to be considered (the receipt of legal advice), but failed to state the "issue" (the question on which advice was being sought). In this respect, the procedure followed was faulty. It may also have contributed to the present Complainant's suspicion that the Committee took improper factors into consideration in reaching its decision behind closed doors B. The subject matter discussed Both the Municipal Act and the Rules of Procedure adopted by the Committee allow a body such as this Committee to receive advice from its solicitor in camera. This exception to the open meeting rule exists for good and historical reasons. The drafters of the Act knew that occasionally the public interest in keeping legal advice confidential outweighs the interest the public has in observing its council and boards in action. It accordingly provided that a local body could (not must) consider these matters in camera. The right to go in camera to consider these matters should not be exercised in every case a local body wishes to obtain the advice of its legal counsel. Rather, it should only be resorted to after the local body has balanced the public interest which needs to be protected with the interest everyone has in observing the conduct of public business by their representatives. Engaging in this balancing process will, as the City Clerk and Solicitor explained to the Committee prior to the commencement of the hearing, seldom result in a finding that recourse to in camera proceedings is justified. The nature of the balancing act that must be done when exercising the discretionary right to go in camera has been discussed in previous reports by this Investigator. Although the process was not expressly incorporated in the Rules adopted by the Committee, the Meeting Investigator understands that the City Solicitor did notc in his presentation that he very rarely found it necessary to give his legal advice to Council in camera. There is no evidence that the Committee went through any balancing process in this case. If it had, thc Committee surely would have concluded that there was nothing to prevent receiving the legal advice it required in open session. C. Rising and Reporting The presentation by thc City Clerk and Solicitor contained two provisions relating to Rising and Reporting: • "When the in camera session is completed, the Committee moves a motion to `Rise and Report'. • When in open session, the Chair provides a brief verbal summary of what the Committee addressed in the closed session and voted on as appropriate." These provisions reflect previous recommendations by this Investigator and the procedure currently followed by Council. Unfortunately, the provisions were not incorporated in the Rules of Procedure adopted by the Committee and, possibly for this reason, the procedure was not followed by the Committee. Once again, compliance with these provisions may well have provided sufficient assurance to the Complainant in this case that the Committee had not engaged in any improper conduct while behind closed doors. CONCLUSIONS I. In the absence of some suggestion as to how the receipt of legal advice in open session could be considered contrary to the public interest in this case, the Committee erred in its decision to go in camera. 2. The failure of the Committee to state the specific matter with respect to which legal advice was being sought, was both contrary to the Committee's own Rules and a likely source of suspicion that the Committee was going to do more than it did. 3. The failure of the Committee to "Rise and Report" in the manner followed by City Council may well have given rise to concerns that the Committee acted improperly behind closed doors. 4. There is no evidence of improper conduct by the Committee while in closed session. . RECOMMENDATIONS The newly created Election Compliance Audit Committee has an important role to play in en- hancing public confidence and respect for the election process in Ontario municipalities. This public confidence in the election process must begin with confidence that the Committee itself is properly and openly conducting its business. Appearances may not be everything. But they are important if faith is to be maintained in the system. With this in mind, the Meeting Investigator recommends the following actions: 1. The Committee's Rules of Procedure be revised to provide that the Committee may go in camera to receive legal advice from Committee counsel when the public interest outweighs the desirability of adhering to the general principle that the meeting be open to the public. 2. That a requirement for rising and reporting be incorporated in the Committee's Rules of Procedure. 3. That the Committee receive further guidance on the principles of open meetings. All of which is respectfully submitted, this 20` day of May, 2011. Douglas R. Wallace Meeting Investigator