Was John Tory's relationship inappropriate? Yes. Against the rules? Not really

From columnists to call-in radio shows, almost everyone seems to have an opinion about the now-former Toronto mayor's stunning resignation.

Some have argued that John Tory abused his position of power when he engaged in an intimate relationship with a much younger staffer. Others take the former mayor at his word that it was a consensual relationship, wondering why it's a big deal.

Ontario Premier Doug Ford urged Tory to hang in there, while Deputy Prime Minister Chrystia Freeland told the Toronto Star that Tory's departure was "necessary."

Necessary? Perhaps politically. Required? Absolutely not.

That's because there are actually no rules in Toronto — or any Ontario municipality — about politicians developing intimate relationships with their staff members.

• John Tory officially resigns as mayor after admitting to extramarital affair
• John Tory called his affair with a staffer a 'judgment' error. It also sparked debate over power and consent

Sure, there's the municipal conflict of interest act, but it speaks only to conflicts related to financial matters, like a mayor building a town recreation centre near his own store. 

The rules overseeing council members' general behaviour are set out in codes of conduct, and those codes say absolutely nothing about sleeping with people in your office. 

Putting aside all other aspects of the former Toronto mayor's relationship – the age difference, his marital status, and in particular the complex question of consent — Tory was this woman's boss. He had the authority to hire and fire her, to give her a bonus or promotion.  In virtually no office context is this arrangement appropriate.

But inappropriate and against the rules are two different things. 

Most codes include a vague general statement that council members avoid improper use of influence and getting into conflicts of interest. 

Ottawa made a stab at more explicit rules last fall, when the outgoing council moved a motion to have its integrity commissioner require elected officials to disclose their personal relationships with staff members – including those of other councillors.

Commissioner Karen Shepherd responded with a polite "no thanks." In a report last December, she wrote she had "outstanding concerns related to the mandatory, proactive disclosure," but did not elaborate.

'Can't go on forever'

Office relationships are hardly new, and not automatically bad, according to Ottawa's former integrity commissioner Robert Marleau. Of course, he adds, where there's a wide power imbalance, it can be difficult to determine if a staffer felt any pressure to enter the relationship.

"But even a totally consensual relationship in an office context can't go on forever," Marleau told CBC, while declining to speak specifically about Tory's situation.

Someone in the relationship needs to get a new job, and it's almost always the junior person who ends up leaving. At the very least, says Marleau, the senior person needs to publicly disclose the relationship, which in politics, likely won't be tolerated by the public.

Disclosure raises other issues. When does an office relationship that requires some sort of action actually begin? At the initial inkling of feelings? First kiss? After a month of dating? What about a short fling that's over almost as soon as it starts?

"I'm not sure you can write rules for every situation, every possible relationship," says Marleau. "Human beings find a way around it."

Even for city staff, the rules on inappropriate relationships are generally limited to not being allowed to supervise family members. And the definition of "family" in most municipal rule books comes from the conflict of interest act, which refers only to spouses, children, and parents. 

But there are moves to expand that definition. 

Judge Frank Marrocco, who oversaw an inquiry in Collingwood, Ont., into a pair of questionable public contracts, wants the concept of family to be extended to a much bigger circle, one that would include siblings and cousins.

Still, that definition still doesn't include personal relationships, and Marrocco's decision only applies to situations where city decisions benefit council members' families.

More complaints coming in

Suzanne Craig, who's been the integrity commissioner for the City of Vaughan since 2009, says commissioners are seeing more and more complaints that relate to behaviours of political officials, especially regarding workplace harassment.

Like Marleau, she declined to address Tory's specific situation, but said codes of conduct are beginning to include examples in addition to broad principles.

"These are the types of things that you shouldn't be doing, and these are the types of relationships that you shouldn't be doing," she said. "There's more that has to be done because there's a lot that flies under the radar."

For example, Ottawa's 2019 employee code of conduct, includes the usual rule about not supervising family members.

But it goes farther: "What is important is making sure that we do not use our positions as city employees to give preferential treatment, whether it is to ourselves, our families or our friends."

The addition of the term "friends" is uncommon and could go some way to capturing many of the inappropriate favours council members do for close associates.

Few consequences

But even if councils adopted more specific language, there'd still need to be a way to enforce it.

As it stands, contraventions of codes of conduct are investigated by an integrity commissioner after they get a formal complaint. If they find a council member has violated the code, they can formally reprimand them and — with council approval — dock them 90 days of pay.

Many have felt these consequences to be woefully inadequate, in particular in cases where elected officials — in Ottawa, Brampton, Barrie and elsewhere — were found to have sexually harassed female staffers or members of the public, and yet clung to their council seats.

A private member's bill that's been tabled three times by Liberal MPP Stephen Blais aims to change the law to allow any municipally elected official who has behaved egregiously be removed from office, at the discretion of a Superior Court judge.

But that provision is for the worst-case offenders. From the little we know of the dynamics of the relationship, Tory's conflict probably wouldn't meet the bar.

Perhaps he would have been sanctioned or fined under the tougher provision. The person in the relationship would likely have had to get another job. 

And Tory may have felt compelled to quit — but he wouldn't have been forced to.

That doesn't mean we shouldn't have more specific rules about inappropriate relationships, if simply to make it crystal clear to officials and the public what's expected from our folks in office.

What it would change is another question entirely.