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Charter - Administrative (7). Gould v. Ontario College of Teachers
In Gould v. Ontario College of Teachers (Ont Div Ct, 2026) the Ontario Divisional Court allowed an appeal, this brought against "the penalty decision of the Discipline Committee of the Ontario College of Teachers" where the appellant was found "guilty of three counts of professional misconduct" and the Committee ordered the revocation of her teaching certificate for her expressive activities.
The court held that the Discipline Committee failed to "engage in a Doré [SS: Charter] analysis either in respect to liability or penalty":(a) Findings of Professional Misconduct
[27] In light of the Agreed Statement of Facts and Guilty Plea, the Discipline Committee found the Appellant guilty of professional misconduct at the conclusion of the merits hearing and gave brief oral reasons. In its written reasons included in the Impugned Decision, the Discipline Committee found as follows (Decision, para. 26):[The Appellant] acknowledged, and the Panel finds, that the Admitted Facts constitute professional misconduct under the heads of misconduct set out above. In the [Agreed Statement of Facts and Guilty Plea, the admitted facts demonstrate that the [Appellant] made numerous comments on her social media accounts that were inappropriate, unprofessional, disrespectful, and offensive and provided a forum for others to agree or post their own opinions. [28] In respect to the finding of professional misconduct under s. 1(15) of the Regulation, the Committee found as follows (Decision, para. 27, 30-33):The Panel finds that the [Appellant] failed to comply with subsection 264(1) of the Education Act, contrary to subsection 1(15) of the [Regulation]. Subsection 264(1)(c) states that teachers have a duty “to inculcate by precept and example respect for religion… and the highest regard for justice, … humanity, benevolence, … temperance and all other virtues” [emphasis in original]. Section 264(1) is commonly understood to mean that teachers must conduct themselves as positive role models for students. This duty extends to the [Appellant’s] conduct outside of school.
The Panel finds that the [Appellant] failed to uphold her obligations under section 264(1)(c) when she posted offensive images and comments on social media and also allowed others to make hateful comments in response. The [Appellant] failed to act as a good role model. The [Appellant’s] numerous comments and upwards of 2000 posts were discriminatory, rude, racist, and offensive. Some examples of this include her calling someone, “inbred Ahmed”; and referring to Islam as an “enemy ideology”; a “sick death cult” and a “shamefully backward religion.”
Additionally, the [Appellant’s] admitted misconduct did not comply with subsection 264(1)(d) of the Education Act, which requires teachers to assist in developing co-operation and co-ordination of effort among the members of the staff of the school. Both the Board and the School had public statements outlining their commitment to embracing diversity…. The [Appellant’s] posts and comments on social media expressed views that are opposed to these efforts and can be seen as undermining the School’s efforts to meet these objectives.
The Panel finds that there was ample evidence that the [Appellant’s] conduct had a detrimental impact on her relationships with her colleagues and on the school community…. Her colleagues who viewed the [Appellant’s] posts, saw them as anti-Islamic, racist, and transphobic. They were sickened by the scope and focus of her posts, and by the imagery and language used by the [Appellant]…. [H]er colleagues indicated they would have difficulty working with her going forward and were concerned that she presented a danger to the School’s student population, whose race, religion and/or sexual identity were targeted in the [Appellant’s] posts….
... As set out in the [Agreed Statement of Facts] and Guilty Plea, it is clear that the [Appellant’s] conduct had an adverse impact on her relationship with many of her colleagues and the school community. [29] In respect to the finding of professional misconduct under s. 1(18) of the Regulation, the Committee found as follows (Decision, paras. 34, 35):The terms “disgraceful, dishonourable and unprofessional” [in s. 1(18) of the Regulation] are not legislatively defined, but are understood to be disjunctive and in a decreasing level of seriousness. Disgraceful conduct is characterized as reprehensible and the most egregious. It is conduct that costs serious doubt on a member’s moral fitness and ability to uphold their duties and responsibilities as a member of the profession. Dishonourable conduct also implies an element of a moral failing but is less serious than disgraceful conduct. Conduct characterized as unprofessional does not indicate a moral failing, but rather, involves acts that display poor professional judgment. The Panel finds that the [Appellant’s] conduct meets all three terms.
The [Appellant] showed a lack of moral and professional judgment when she disseminated disrespectful and offensive comments through her social media posts…. [T]he [Appellant] clearly ignored not only the requirements imposed on teachers by statute but also the expectations regarding teachers’ use of social media that are set out by their regulatory body, the College of Teachers….
... [T]he [Appellant] facilitated the widespread promulgation of offensive content by other social media users by failing to moderate the discussions on her posts. While she may have removed some posts, she did not remove all posts…. [T]he [Appellant] also admits to having removed content that she did not want in her online space, such as anti-Semitic or misogynist content, the Panel finds this selective screening is indicative of an intentionality in the [Appellant’s] actions that puts the [Appellant’s] misconduct on the highest level of seriousness, such that the Appellant’s] conduct can be properly characterized by all three terms. [30] In respect to the finding of professional misconduct under s. 1(18) of the Regulation, the Committee found as follows (Decision, para. 38):The panel finds that the [Appellant] engaged in conduct unbecoming a member, contrary to… [s. 1(19) of the Regulation] … [which] includes “off duty” conduct that undermines the reputation of the teaching profession. The [Appellant’s] misconduct in expressing her personal views in a disrespectful and offensive manner on her personal social media accounts, while openly stating that she is a teacher in the Ontario system, not only affected her work colleagues, but also undermined the public’s confidence and trust in the profession as a whole. [31] One aspect of the Discipline Committee’s liability decision required an analysis provided for in Doré v. Barreau du Québec, 2012 SCC 12, [2023] 1 SCR 395. Ms Gould pleaded guilty to misconduct under s. 1(18) of the Regulation, that is, an act or omission that is “disgraceful, dishonourable or unprofessional” (emphasis added). The Committee found that Ms Gould committed acts and omissions that were “disgraceful, dishonourable and unprofessional” (emphasis added). This was an available finding, on the record, and was not foreclosed by the terms of the Agreed Statement of Fact and Guilty Plea, but Ms Gould cannot be taken to have agreed that her conduct constituted misconduct described by all three terms in s. 1(18). On the record, and on the basis of arguments made by Ms Gould to the Discipline Committee, she regarded her misconduct as no more serious than “unprofessional”. In making findings in respect to this contested issue of liability, the Discipline Committee was obliged to conduct a Doré analysis.
[32] The Discipline Committee’s reasons in respect to this issue are brief and insufficient in the circumstances of this case:The Panel notes that by signing the [Agreed Statement of Facts] and Guilty Plea…, the Member has already admitted that her postings amounted to professional misconduct. However, through her counsel, during the hearing she appeared to resile from this agreement and instead advanced her alternate position[,] namely, that her posts promoted truth and freedom and that some of them were intended to be ironic and satirical. In several of her posts, the Member referred to her right to exercise her right to freedom of speech. The Panel considers the recent Divisional Court case Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685[5] (“Peterson”) where the court held that when an individual is a member of a regulated profession, he or she is required to abide by the rules of that profession which may impinge on that individual’s right to freedom of speech (at para. 1).
In the present case, the Member was a member of a regulated profession, which by statute required her to demonstrate the highest regard for moral virtues in her actions, including when posting her personal views on social media. Her right to freedom of speech on her social media was therefore limited by her professional obligations as a member of a regulated profession. The Panel notes that the Peterson case confirms this finding. [33] With respect, Peterson cannot be read to have obviated a context-specific Doré analysis in each case in which a member of a regulated profession is disciplined for unprofessional publication of words. The court in Peterson noted the analysis undertaken by the ICRC (at Peterson, at paras. 57-67), and further noted that the ICRC, as a screening body, is not required to undertake the sort of formal and detailed reasons one would expect from an adjudicative body after a full hearing (Peterson, at para. 62). The court in Peterson did not hold, and should not be taken to have held, that regulated professionals are subject to any and all restrictions on their freedom of speech on the basis of their regulator’s views of what professionalism may require of them.
[34] Ms Gould’s argument below, and before this court, was that some of her remarks “crossed the line” and were unprofessional, but that she was entitled to express her views in appropriate and professional language, and that much of what she published fit under the penumbra of protected speech. It is no answer to this argument that Peterson holds that regulated professionals are limited in how they may express themselves publicly by standards of professionalism. Further, professional discipline tribunals may not forego their own case-specific Doré analysis because the court upheld the analysis of the ICRC in Doré. Finally, where freedom of speech is raised – even where there has been a guilty plea – a Discipline Committee is expected to provide a proper and complete Doré analysis in respect to its findings on liability and penalty where the issue is raised in defence of a contested issue.
[35] In my view, failing to conduct a Doré analysis in respect to the contested liability issues and in respect to penalty is a fatal error of law in this case. The matter must be sent back for a fresh hearing. . Tan v. Canada (Citizenship and Immigration)
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
The court considers a 'fresh law' issue, here in a Charter JR context - and, in the course of that, canvasses administrative tribunal Charter jurisdiction over 'questions of law' [paras 42-43]:A. Did the Federal Court err in concluding that it did not have jurisdiction to examine Ms. Tan’s constitutional challenges?
[32] The Federal Court made two preliminary findings regarding Ms. Tan’s constitutional arguments:The constitutional validity of sections 10 and 10.1 of the Citizenship Act was not raised before the Delegate; and
It would be inappropriate for the Federal Court to consider Ms. Tan’s constitutional arguments for the first time on judicial review. [33] I agree with the Federal Court that Ms. Tan did not put the constitutional validity of sections 10 and 10.1 of the Citizenship Act before the Delegate. Although Ms. Tan referred to the Bill of Rights and the Charter in support of her submissions to the Delegate, she did not request a declaration that the two provisions are constitutionally invalid. As the Federal Court stated, Ms. Tan’s 2015 written representations, in which she did raise a constitutional issue, were made in the course of her application for judicial review of a decision made under the citizenship revocation regime of the 2015 Citizenship Act, which regime was declared invalid in Hassouna. The 2015 submissions do not challenge the constitutionality of sections 10 and 10.1 of the current Citizenship Act. The Federal Court correctly concluded that Ms. Tan raised the constitutional issues at the heart of this appeal for the first time on judicial review.
[34] I do not, however, agree with the Federal Court’s second preliminary finding.
[35] Citing the Supreme Court’s decision in Alberta Teachers, the Federal Court found that a reviewing court will not in most cases exercise its discretion to consider a new issue in favour of an applicant on judicial review where the applicant did not argue the issue before the administrative decision maker. The Federal Court was not persuaded by the Respondent’s argument that the Court could address Ms. Tan’s constitutional arguments because the Delegate did not have jurisdiction to do so.
[36] It is well settled that a reviewing court has discretion "“not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so”" and, generally, will not exercise its discretion "“where the issue could have been but was not raised before the tribunal”": Alberta Teachers at paras. 22-23. A party cannot bypass an administrative process by applying for relief in a court of law where the particular decision maker has the jurisdiction to address the issue, including a constitutional issue: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paras. 38-40 (Okwuobi); Zoghbi v. Air Canada, 2024 FCA 123 at para. 30 (Zoghbi), leave to appeal to SCC refused, 41471 (April 17, 2025); Erasmo v. Canada (Attorney General), 2015 FCA 129 at paras. 33, 38 (Erasmo).
[37] Conversely, if an administrative decision maker does not have the power or jurisdiction to decide constitutional questions, the general rule prohibiting a reviewing court from considering those questions at first instance is subject to an exception and the constitutional issue or issues may be raised before the reviewing court: Zoghbi at para. 30; Erasmo at paras. 33-38. The contrary result is untenable. If the administrative decision maker had no jurisdiction to consider a constitutional issue and it is not appropriate to raise the issue for the first time on judicial review, an applicant has no recourse and the legislation in question is not subject to efficient, independent oversight.
[38] In Zoghbi, this Court stated:[30] […] Where the issue is one of constitutional law and the administrative decision-maker has the jurisdiction to deal with it, the administrative decision-maker, as the merits-decider, is the forum to raise it. In those circumstances, an applicant on judicial review cannot bypass the power of a tribunal to decide an issue, and proceed directly to the reviewing court: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 28-55.
[Emphasis added.] [39] To similar effect, this Court has previously stated that "“a direct challenge in Court to the constitutionality of legislation is possible as long as the challenge is not ‘circumventing the administrative process’ or tantamount to a collateral attack on an administrator’s power to decide the issue…”": Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245 at paras. 46-47, citing Okwuobi at para. 54; see also Benito v. Immigration Consultants of Canada Regulatory Council, 2019 FC 1628 at paras. 55-56. This Court has also stated that the objection to first raising constitutional issues before a reviewing court, "“would not lie if the [administrative tribunal] did not have the jurisdiction to decide the constitutional issues”": Toussaint v. Canada (Attorney General), 2011 FCA 213 at para. 49, leave to appeal to SCC refused, 34446 (April 5, 2012), citing Okwuobi at paras. 28-34 and 38, and Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54 (Martin).
[40] In Goodman, a brief decision issued from the bench, this Court found that the appellant’s constitutional arguments regarding a 2013 amendment to section 25 of the IRPA should not have been considered by the Federal Court because they had not been raised before the administrative decision maker. It is not at all evident from the Court’s reasons that the jurisdiction of the decision maker was argued in the appeal and the decision in Goodman does not address whether the original decision maker was empowered to consider constitutional arguments. As a result, I do not read Goodman as stating that a reviewing court should not entertain a new constitutional issue on judicial review even where the administrative decision maker did not have jurisdiction to consider the issue.
[41] The question is then whether the Delegate was competent to hear Ms. Tan’s constitutional arguments. In other words, could the arguments have been addressed by the Delegate?
[42] Administrative tribunals with the power to decide questions of law by virtue of their enabling statute have presumptive jurisdiction to determine issues of constitutional law, including the constitutional validity of a provision of their enabling statutes: Martin at para. 34; York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at para. 87, citing R. v. Conway, 2010 SCC 22 at para. 22. Presumptive jurisdiction to consider constitutional questions can only be rebutted "“by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations”": Martin at para. 42.
[43] The grant of jurisdiction to consider questions of law can be explicit or implicit: Martin at paras. 35-41, 48; Zoghbi at para. 43. Explicit authority is set out in the terms of the tribunal’s statutory grant of authority. The existence of implied jurisdiction requires consideration of the governing statute as a whole: Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at para. 49 (Covarrubias). In Martin, the Supreme Court stated:[48] … Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. […] If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. [44] Under section 10 the Citizenship Act, the Minister (typically a delegate of the Minister) is empowered to revoke a person’s citizenship if satisfied on a balance of probabilities that the person has obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances. The section does not contain an express grant of jurisdiction to consider questions of law and, considering the citizenship revocation provisions of the Citizenship Act as a whole and the Minister’s statutory mandate, I cannot discern an implied grant of jurisdiction.
[45] Subsection 10(1) limits the Minister’s power to determining whether a person obtained their citizenship by false representation or fraud and, if so, whether the person’s personal circumstances warrant special relief. In my view, the Minister’s task is factual. Although the Minister makes a final determination of revocation in some cases, they are not required to decide questions of law in fulfilling their role. Rather, the Minister applies substantive rules to a set of facts.
[46] In terms of the Minister’s relationship with other actors in the statutory framework of revocation, a person faced with the revocation of their citizenship can forego the opportunity to have the revocation determined by the Minister, in which case the determination is made by the Federal Court (subsection 10(4.1) and section 10.1 of the Citizenship Act), thereby providing an alternate adjudicative avenue for consideration of constitutional issues. I would add that neither the Minister nor their delegate in a given case may have legal training. Practically, they may not have the capacity or expertise to assess and determine questions of law, including Charter questions: see, e.g. Covarrubias at paras. 51-56, and the Court’s consideration of the same questions in relation to an officer entrusted with the determination of a pre-removal risk assessment under the IRPA, a role that is similar to that of a delegate under section 10 of the Citizenship Act.
[47] I find that the Delegate was not empowered to adjudicate constitutional or Charter issues and that Ms. Tan cannot be said to be circumventing the administrative process by raising such issues before the reviewing court. It follows that Ms. Tan was not prohibited from making her constitutional arguments and requesting a declaration of invalidity for the first time before the Federal Court.
[48] Despite reaching the opposite conclusion, the Federal Court nonetheless considered the constitutional issues raised by Ms. Tan. This Court has the benefit of the Federal Court’s analysis and the parties’ extensive written and oral submissions regarding those issues and I find that it is appropriate and fair to consider Ms. Tan’s constitutional arguments on appeal.
[49] A note of caution. By far the better practice for an applicant is to raise all issues, including constitutional issues, before the administrative decision maker who can then determine if they have jurisdiction to address those issues. If the applicant fails to do so and the decision maker had the necessary jurisdiction, the applicant risks the reviewing court’s refusal to exercise its discretion to act as a decision maker of first instance. . Robinson v. The Corporation of the City of Pickering [inadequate grounding of Charter argument in admin context]
In Robinson v. The Corporation of the City of Pickering (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a sanction imposed by Pickering’s City Council for breaches of the City’s Code of Conduct". These breaches related to applicant statements that the Integrity Commissioner found to be false, misrepresentative of the City's policy, and "which exposed the City to a potential breach of the Municipal Freedom of Information and Protection of Privacy Act".
Here the court addresses bare (in terms of evidence and jurisprudence) municipal administrative submissions that the applicant's Charter s.2(b) ['freedom of expression'] and s.15 ['discrimination'] has been breached:[18] With respect to s. 2(b), the applicant states the sanction penalizes her for communicating with her constituents and exposing municipal issues. She claims Council’s response was not a proportionate limit under s. 1 of the Charter. Under s. 15, she says she had been uniquely targeted and stripped of pay when she is a single mother and faces disproportionate financial hardship.
[19] The applicant did not raise either of these issues before the Integrity Commissioner despite being invited to provide submissions twice. She also knew from the previous application for judicial review cited above of the City’s position she was required to raise Charter issues before the Integrity Commissioner. In her factum before this court, her s. 15 claim totaled four lines and her s. 2(b) claim amounted to six lines.
[20] While an administrative decision-maker in some circumstances may have an obligation to identify impacted Charter rights, even where they are not raised before it, a Charter analysis cannot be completed where the claim is unknown and there is no relevant record before the decision-maker. In this case, the applicant neither raised nor provided any evidence that would have made a claim under s. 15 of the Charter relevant. This allegation is dismissed.
[21] With respect to s. 2(b), the applicant’s summary claim in this court does not merit remitting the matter to the Integrity Commissioner. The applicant’s analysis suggests she had an absolute right to express herself and does not admit of any weighing of Charter values with statutory objectives. Although the Integrity Commissioner did not directly address s. 2(b) rights, because they were not raised, the implication of the report was that the applicant’s speech was not of the type that lies at the heart of the values underlying freedom of expression. This is because the applicant was not engaging in genuine political debate. Instead, as found by the Integrity Commissioner, the applicant’s statements were in two cases “categorically false” and in one case “deliberately misrepresented” Council’s policy. The applicant’s conduct was “intentional” and had the goal of “discrediting and disparaging City staff, and casting doubt on and undermining the public’s trust in the City as a whole.”
[22] Considering these findings, it is implicit in the specific circumstances of this case that the City’s goal of ensuring City staff are treated with dignity and of ensuring and promoting public trust in the City, as required by the Code of Conduct, outweighed any limit on the applicant’s freedom of expression. . Lavoie v. Canada (Attorney General)
In Lavoie v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this against "a decision by the Federal Public Sector Labour Relations and Employment Board ... . In its decision, the Board concluded that it did not have jurisdiction over the applicants’ grievances referred to adjudication under paragraph 209(1)(b) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the Act). Under that legislative provision, the grievances must relate to "“[…] a disciplinary action resulting in termination, demotion, suspension or financial penalty”"."
Here the court considered whether the Board properly assessed the applicant's Charter argument:[7] A considerable portion of the applicants’ oral submissions at the hearing focused on the alleged failure of the Board to give meaningful consideration to the protections afforded by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter], particularly the right to security of the person guaranteed by section 7, and the impact of the Policy thereon.
[8] I am not persuaded that the Board erred in this regard. On the contrary, the Board meaningfully considered the applicants’ submissions on the Charter and thoroughly addressed the issues raised, however it ultimately concluded that the applicants were unable to demonstrate that the effect of the decision to place them on unpaid leave for failing to comply with the Policy was disproportionate to the administrative justification provided by the employer. . Robinson v. Pickering (City)
In Robinson v. Pickering (City) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against "two decisions of council in which council unanimously voted, in the first instance, to suspend the applicant’s salary for 30 days and, in the second, to suspend her salary for 60 days", these "based on recommendations provided by the respondent integrity commissioner, who determined, following investigation of various complaints, that the applicant had violated council’s code of conduct".
The court considers Charter s.2(b) freedom of expression issues, here in an administrative context:[124] The Supreme Court of Canada has repeatedly held that administrative decisions may limit an individual’s rights under the Canadian Charter of Rights and Freedoms[67] where the limit is proportional to the statutory objective that the administrative agency is required to fulfill.[68] “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”[69]
[125] In the instant case, there is no doubt that the Second Decision engaged with the applicant’s argument about her right to freedom of expression. The Commissioner expressly acknowledged the importance of this right.[70]
[126] The Commissioner engaged in an appropriate balancing exercise. As reflected in the Second Report, the Commissioner expressly acknowledged that “[e]lected municipal officials are leading players in local democracy. They are democratically chosen to look after the community’s interests.”[71] The Commissioner recognized the importance of elected officials exercising free speech, noting that a councillor’s “freedom of expression is a crucial instrument for achieving effective participation and good municipal government.”[72] The Commissioner explained that elected municipal councillors function as “conduits for the voices of their constituents: they interpret and convey their grievances respecting municipal government.”[73]
[127] On the other hand, the Commissioner properly recognized that freedom of expression is not an absolute, unfettered right: “it is limited by reasonable restrictions, including by requirements to protect the rights and freedoms of other persons.”[74] Moreover, while acknowledging the important role that elected representatives play as “conduits for the voices of their constituents,” the Commissioner was sensitive to the need not to countenance unlimited and possibly harmful expression by allowing an elected official to justify their position as “merely reflecting the views of her constituents.”[75] The Commissioner reasoned that it would be “completely unacceptable for a Councillor to publicly make statements in support of spousal abuse, antisemitism or slavery, regardless of whether these were the ardently-held views of one’s constituents.”[76]
[128] Mindful of the need to balance the applicant’s rights with the rights of other individuals, the Commissioner also recognized that an elected official’s conduct that seeks to fuel “unfounded fears” and impair “the rights of minority and marginalized groups – in this case LGBTQ+”[77] has the potential to “have a corrosive effect on democracy, allowing the loudest voices to drown out the marginalized and vulnerable in the community.”[78]
[129] In my view, faced with what the Commissioner found to be conduct by the applicant “reflecting and promoting intolerance, homophobia and transphobia,”[79] the Commissioner’s finding of a breach of the Code of Conduct and the recommended sanction represents a reasonable, balanced, and proportionate limit on the applicant’s right to freedom of expression given the Commissioner’s statutory mandate to enforce the City’s Code of Conduct in the public interest. In this regard, the Commissioner provided a proportionate response, recommending the sanction of a 60-day suspension of pay that, while less than the maximum sanction available (90 days), also recognized that the applicant had already been found to have been in breach of s. 05.01 on a previous occasion.
[130] Thus, I agree with the submissions of respondents’ counsel that, given the circumstances of the case, the applicant has failed to demonstrate that Council’s acceptance of the Commissioner’s Second Report constitutes an unreasonable and disproportionate balance between the applicant’s Charter interests in freedom of expression and Council’s statutory mandate to enforce the Code of Conduct. . A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)
In A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here against an order that dismissed an HRTO claim involving an autistic child alleging age and disability discrimination.
Here the court cites the case of York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) as approval for the to-me obvious validity of the Charter being heard by tribunals, if pled and relevant:[24] The Supreme Court of Canada wrote recently about the need for administrative tribunals to address Charter issues that arise for adjudication in cases before them. In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (CanLII) the Court held:[89] The principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. Tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction (i.e., where the essential factual character of the matter falls within the tribunal’s specialized statutory jurisdiction). In exercising their statutory discretion, tribunals must comply with the Charter (Conway, at paras. 20-21 and 78-81).
[90] This is, in part, an access to justice issue. There are practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available (Conway, at para. 79). Charter rights can be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants do not need to have separate recourse to the courts for their Charter rights to be vindicated (Conway, at para. 103).
[91] Where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision. Administrative tribunals are empowered — and, for the effective administration of justice, called upon — to conduct an analysis consistent with the Charter where a claimant’s constitutional rights apply (Conway, at paras. 78-81; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 52). It was therefore incumbent on the arbitrator to proactively address the s. 8 issue that manifested itself on the facts of the grievance. It is insufficient to revert to a separate “well developed arbitral common law” privacy right framework, or to another framework, as the arbitrator did in this instance (A.F., at para. 13). As I have explained, the Charter and relevant s. 8 jurisprudence were legal constraints that applied to the arbitrator’s decision (Vavilov, at para. 101). In other words, the arbitrator was required to decide the grievance consistent with the requirements of s. 8. This would properly entail drawing on both the relevant body of arbitral decisions and the s. 8 jurisprudence.
[92] The arbitrator approached her task differently. She conducted an analysis by reference to management rights versus the privacy interests of employees. However, arbitrators cannot disregard the Charter’s requirements where it applies by applying another analytical framework, even by consent. [Emphasis added.] [25] Unfortunately, the presiding member who heard A.H.’s claim declined to decide the issue of whether s. 10 of the Code violates s. 15 of the Charter. In my view, this path to a decision was not open to her. Accordingly, the decision must be remitted to the tribunal to consider the issue on the facts and applicable law.
[26] With A.H. failing in the claim for discrimination based on disability, A.H.’s claim for discrimination based on age remained for consideration. The claim was pleaded. It was joined by the respondent. Evidence was adduced by all parties on the issue. The parties made legal argument on the issue. The issue of whether s. 10 of the Code violates the Charter was justiciable, ripe for consideration, and necessary to justly decide A.H.’s lawful claims.
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