Chiarelli going to court to stop investigation into alleged behaviour

Coun. Rick Chiarelli is threatening to go to court to stop the city's integrity commissioner from investigating multiple complaints against him, including asking a job applicant is she'd be willing not to wear a bra to work events.

In a letter to CBC sent late Monday afternoon, Chiarelli's laywer, Bruce Sevigny, said he has advised integrity commissioner Robert Marleau "that we will be challenging his jurisdiction" by applying for a judicial review.

Marleau would neither confirm nor deny whether he's been given a heads-up about a possible court challenge to his authority, and as of Tuesday afternoon there had been no application filed with the Ontario Superior Court.

CBC has learned that at least four women have made formal complaints to the integrity commissioner.

The threat of a judicial review to stop Marleau from continuing with his investigation is the latest development stemming from CBC's exclusive investigation into the councillor's alleged inappropriate behaviour and comments directed at both former staffers and job applicants.

So far, CBC has reported on the allegations of a dozen women who've said they witnessed or experienced inappropriate actions, including two named former employees. On Wednesday, CBC will report the allegations of a 13th complainant.

Not the right venue: Chiarelli

Chiarelli's lawyer has not responded to requests for more information about the judicial review.

However, in a personal statement released earlier this month denying all allegations, Chiarelli said he doesn't believe the integrity commissioner's office is the appropriate venue for the complaints.

Laura Osman/ CBC

In his statement, the councillor said that, according to his lawyer, the "vast majority of the allegations" raised against him would be "properly and thoroughly covered by protections and processes set out in the Ontario Human Rights Code."

That process would entitle the councillor to know the identity of his accusers and would let his lawyer "test the veracity" of the allegations through cross-examination, the councillor said in his statement.

But lawyers consulted by CBC said it's up to the women to decide where to file their complaints, and believe Chiarelli is "misinformed" about the integrity commissioner's role.

According to the code of conduct for Ottawa city councillors, all members "have a duty to treat members of the public, one another and staff with respect and without abuse, bullying or intimidation, and to ensure that their work environment is free from discrimination and harassment."

If anyone feels a councillor has violated that code, he or she can file a complaint to the integrity commissioner.

Judicial review unusual

In this case, the application for judicial review would request that a judge or panel of judges declare that the integrity commissioner is exceeding his power by investigating the complaints against Chiarelli.

But according to Ontario's Judicial Review Procedures Act, the court has the power to "set aside a decision" by a tribunal or other provincial government body if the court finds the decision erred in law, didn't have enough evidence or exceeded its authorized power.

However, this usually happens after a decision has been made, not before an investigation has occurred. In fact, it's unclear that anyone has ever suggested applying for a judicial review in advance of an investigation.

For example, the former deputy mayor of Vaughan, Michael Di Biase, filed applied for a judicial review to quash integrity commissioner's final report that found he had violated the code of conduct, and to reverse council's decision to accept the integrity commissioner's report.

The court dismissed Di Biase's application in 2016. 

In the meantime, Ottawa's integrity commissioner's investigation is expected to continue.

"Hypothetically nothing halts an investigation except a direct court order," Marleau told CBC in an email.

He would not speak to the Chiarelli matter specifically, but said judicial reviews, which are held in open court, "can take a considerable amount of time to resolve and it is not impossible that an [integrity commissioner] could proceed and report."

Council to decide on Chiarelli's leave

On Wednesday, city council will decide whether to approve Chiarelli formal leave of absence. Councillors have put off two previous requests.

On Sept. 24, Chiarelli issued a memo saying he was seeking a leave of absence for an unspecified illness. Chiarelli said he had been rushed to the emergency room on Aug. 14 and has been too ill to work since then. 

He said he was even too ill to apply formally for a leave until now, although a vacation video posted online shows he was in the Czech Republic two days after he said he'd been rushed to hospital.

Chiarelli must show up to council by the end of November or get permission to be away, otherwise his seat will be declared vacant.