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Opening comments:  More at the end.
[ section above ]  - 4 -

Fairness and the OMB

     The OMB Code of Conduct lists Fairness as being one of its main goals, in all of its repeated actions.  This fairness is not only adhered to in order to comply with the law but also to ensure that the OMB members are "avoiding situations that might undermine the public's confidence in their objectivity and impartiality."  The OMB has both a moral and legal obligation to avoid any whiff of scandal or hint of corruption in the mind of a reasonable person who views the facts or events.  The reasons why Mr. Culham should not have been the OMB judge of this matter are numerous but also are the questions that need to be asked, such as how he could ever have become the lone OMB member for this Hearing.

     The OMB Code of Conduct, Section 1, states "FAIRNESS - Principle - Members must provide services and perform statutory functions in an impartial, lawful, unbiased and just manner.  Member Responsibility *  Members have an obligation to act fairly in the conduct of adjudicative proceedings."

     Mr. Culham has a history of being unfair towards the Northmount community, the Cawthra Bush and myself.  As the Cawthra Bush is one of the Northmount community's greatest assets, harming the former is detrimental to the latter and vice versa.  The list of how Councillor Culham's actions and inactions help the City harm the Cawthra Bush is dealt with later on in this brief.  The OMB/Mr. Culham, by not taking issue with or fully investigating the CRRA & FCB Nov. 27/03 letter about the unlawful methods being used by the City as well as other documents in our submission to the OMB, was approving one of the most unfair methods imageable at erecting barriers to our participation & defeating the community efforts at being meaningfully involved in this OMB Hearing and related Planning issues.  This is contrary to the second most important section of the OMB Code of Conduct - Accessibility.

     Councillor Culham's history of prejudice and ill-will goes back to early 1994, when he had the chance to aid our community effort but instead remained silent, later to become active against us and our interests.  Councillor Culham had claimed to be a environmentalist but oddly did not call me up to offer advice or how to deal with the Mayor in order to save the Cawthra Bush.  Maybe Councillor Culham was not willing to share the title of environmental activist?

     In documents from the Peel Archives, he labels me an "extremists"[1].  As Councillor Culham was fighting a losing political battle with the Mayor,[2] it is not unreasonable to think that in the political world he could try to be useful to her and do her a favor in hopes of getting one for himself, that a politician (Mr. Culham) would help another politician (the Mayor) by defeating a community effort (ours) especially if it was not in his Ward.  He even suggested starting a group to undermine ours.

     Mr. Culham's involvement with the City's Official Plans and the Cawthra Woods Management Plan, both of which he was significantly involved in therefore making him the judge of his own past actions.  How reasonable is it to expect Ex-politician Culham to be a fair judge of his own work?  I can hardly see where OMB Member Culham can "provide services and perform statutory functions in an impartial, lawful, unbiased and just manner.", given his conduct and when he is, in effect, the judge of his own work, Ward business associates & political accomplices.

1 - Doc. 9, item A
2 - Doc. 32


 - 5 -

     How fair is it that the 3 letters (Feb. 11/04-# 2 [Faxed][1], Feb. 23/04 [Faxed & in mail][2], Mar. 15/04 [Faxed])[3] and phone call (Mar. 5/04) sent to the OMB Chair about this matter go unanswered?  I know of another member of the community who called the OMB about this issue and was met with hostility for asking questions about Mr. Culham's conduct.  Where is the OMB's fairness and honour?  The OMB has given its stamp of approval to the unjust & unlawful methods used by the City and has even aided the City agenda when it allowed OMB member Culham to judge this matter.  Further, it will be setting a precedence for other ex-politician OMB members to get involved in matters that will destroy what little remains of the public's trust.

1 - Doc. 57.1
2 - Doc. 58
3 - Doc. 60

In brief, what is Conflict of Interest?

     Conflict of Interest is being Bias for gain.  Any kind (or even the appearance) of personal gain or special interest regarding the matter being judged is a matter of great concern to Canadian legal standards.  The involvement of past political associates, who currently control Mr. Culham's political legacy is noteworthy.  The public could reasonably suspect some kind of gain by the OMB member by way of a hidden political favor (being made or returned) or that he has some other special personal interest, which is very possible given the circumstances surrounding this OMB matter.  As the evidence for Bias is very strong, it is logical to seek the reasons for the Bias.

     The OMB or the Board must respect its own rules and the greater body of Canadian law to preserve the faith of Canadians in their own government and legal system.  It is a common thread throughout Canadian common law, administrative law, natural justice and law in general, that there be an automatic disqualification for any Judges who have any Conflict of Interest with one of the parties or is otherwise so closely connected with a party that they can reasonably be said to be judge in their own cause.  "The fundamental principle is that a man may not be a judge in his own cause."

     The OMB has set out its standard regarding Conflict of Interest in its Code of Conduct, which is worded slightly differently from what is commonly noted in the legal judgements for Canadian courts/quasi-judicial functions that also govern the OMB.  The OMB Code of Conduct uses the words - "a financial interest" or "gifts", need to be involved "or may be perceived to be".  The standard I am writing to is mostly to the one mentioned in the cases noted, but also how many people express it to me and appears to be noted in the OMB's Code of Conduct.  The interruption that "gifts" or benefit(s) that "may be perceived" as having the appearance of a Conflict if Interest, can reasonably bring Conflict of Interest into this matter, as it involves items that have a dollar value and that the OMB member could reasonable want or have a special personal interest in.  The usual standard for a quasi-judicial tribunal and courts are addressed in this brief (performed to the best of my ability) to demonstrate the seriousness of this matter.


- 6 -

     Politicians often see their legacy as more important then direct financial gain and it could be considered a personal gift to their ego and memory.  The standard of a gift with a personal or special interest can easily apply in this case.  The "Culham Trail", a gift to Mr. Culham's political legacy, comes first to mind.  Then there are the hundreds of trees he planted and other projects he takes to heart in seeing as his political legacy in Mississauga.  The "Culham Trail" is still under construction, so changes to it could occur.  I am sure OMB member Culham would not like to see any of his political legacy fall into disrepair, renamed, unfinished/built, removed, etc, all of which the Mayor has significant control over, who many have noted, has no love for Mr. Culham and is vengeful.[1]  Because of Mr. Culham's long history in Mississauga it is reasonable to assume there could be many other ways the long term Mayor Hazel McCallion could apply pressure to Ex-Councillor Culham's legacy of his other special interests.  The OMB Code of Conduct does talk about the OMB member not having any kind of "financial interest" in the matter before adjudication.  This is not something I have had time to fully research.

     When the Issue of Conflict of interest was first presented to Mr. Culham in an OMB Hearing, he responded by threatening me with police action rather then properly dealing with the issue as the OMB Code of Conduct requires, a move more typical of a City of Mississauga Councillor.  I did not pursue the matter fully at that time due to his threats against me.

1 - Doc. 32, item C

In brief, what is Bias?

     Bias is a lack of neutrality or impartiality (real, perceived or the reasonable apprehension of it) on the part of a decision-maker regarding an issue to be decided, such that "considerations extraneous to the evidence or the applicable law, policy or argument made in the case" can affect the decisions made.  It may even be the likelihood of an unconscious Bias or favouritism due to dealing with those before an OMB Hearing (or otherwise involved) that have a current or past relationship, (personal or business) with the OMB member judging the matter.  One example of Bias the OMB uses that is particularly germane is "There may be an apprehension of bias when a Member demonstrates possession of and reliance on information that has been gained through prior involvement with one party to a dispute regarding the dispute."  Ex-Councillor Culham sat on Mississauga City Council, in general, and specifically, during his years on the Urban Forest Management Advisory Committee.[1]  Because Conflict of Interest is one of the foundations of Bias and proving a direct financial gain in a Conflict of Interest case can be very hard (more so for members of the public) Bias has a very broad interpretation to help prevent Conflicts of Interest.  Bias is grounds for removal of a judge or overturning a decision.

     The OMB Code of Conduct states, "section 13.  BIAS AND APPREHENSION OF BIAS Member Responsibility *  Members should not only be unbiased, but also appear to be so.  A reasonable apprehension of bias by an observer can be as detrimental to the hearing as actual bias."  The OMB Code of Conduct also goes into detail about other items significantly tied to Bias, such as; (1) Fairness; (4) Quality and Consistency; (5) Transparency; (8) Courtesy; (9) Good Conduct and (11) Impartiality.  All of these can be viewed as relating to Bias, as violating them could easily be seen as a sign of partiality, such as in this case and how OMB member Culham conducted the Hearing. Cedric Barclay once said, "silence is an arbitrator’s mother tongue".  Mr. Culham may have been silent regarding sources of possible Conflict of Interest and/or Bias (before his written decision) but he certainly was not when it came to his verbal harassment of the public.

1 - Doc. 8.1


- 7 -

     Councillor Culham's history of Bias and prejudice goes back to 1994 and it needs to be noted that before the Cawthra Bush, I was not involved in politics (except for voting which I always did) and had no prior contact or involvement with Mississauga's elected officials.  No prejudices, no hidden agendas or other political interests, just a life long Mississaugan trying to do the right thing for his community, the environment we all depend on for our health and up-hold our Democratic right to be fully & meaningfully involved in local government decision making.  Things went the way they did, as that was what Mississauga's politicians wanted to happen.

     A memo found in the Peel Archives[1] really is the smoking gun about how City politicians frame those who lead public opposition to City plans.  In it, Councillor Culham says the City should begin a file or a "security program" aimed at me and later use it to inform the public & media.  Politicians giving direction to City staff to centre out a person and start reporting about that targeted person, only encourages them to file false reports, to be confrontational and in general be bullies.  By some this would be seen as a job advancement opportunity, a way to profit by serving their political employers' desires.  A traditional political method of creating a crisis, has been used.  You can then blame it on the person who can't afford a lawyer to fight back or to buy justice in Canadian courts, destroy their hard work and good reputation with slanderous accusations which a media friendly to local politicians will broadcast it widely and often; thus discrediting a community leader and removing a political obstacle to the wishes of City hall.  The facts support this, I was even pushed from behind on to a lady (who is a senior) by City security and of course the report made it all sound so reasonable.  Physical assaults are part of the escalating harassment by City staff.

     This memo says it should be done in secret "put the issue on a committee agenda without any documentation".  Keep it hidden till they can spring the trap.  Have yet to see City records about an equal effort to work with the FCB & CRRA to resolve any differences between the City and the community & work together for the common goal of saving the Cawthra Bush.  So much easier and cost effective to label a person or group for the purpose of denying them reasonable access to services from the local government.  What the City did to those who tried to form a union is another example.

     The City's Freedom of Information (FOI) Coordinator has made many efforts to make sure I do not get proper access to the security files about me, her methods include making false and unbelievable statements.  In the past, to keep the Mayor's promise that I would not get City records, the FOI Coordinator has made such unbelievable statements to justify withholding City records that the Canadian Environmental Law Association has noted, after reviewing City statements "We submit that this claim, on the part of the City, lacks credibility".

     Mr. Culham goes on to state "try to organize a citizen group as an alternative to Mr. Barber's ... "Friends of the Cawthra Bush"".  In other words create a group friendly to City wishes to undermine an existing community group that opposes City wishes.  The OMB put this man, with his history of underhanded political actions and harassment against our community, as the judge in this matter.  How fair and reasonable is that?

 There is also, the matter of Mr. Culham's finger prints being all over the City's Official Plans and the Cawthra Woods Management Plan, both of which he has been significantly involved in.  How reasonable is it to expect Ex-politician Culham to be a fair and unbiased judge of his own political legacy?  Is he not in a clear position of Conflict of Interest and/or Bias?

1 - Doc. 66


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