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Municipal - Code of Conduct. Jubenville v. Chatham-Kent (Municipality) [unpled freedom of expression via JR reasonableness]
In Jubenville v. Chatham-Kent (Municipality) (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, here brought by a municipal councillour against a municipal Integrity Commissioner’s findings of "a breach of s. 10 of the Code of Conduct" and a Council decision to suspend the applicant’s salary for 90 days.
While a Charter freedom of expression issue had not been pled by the applicant, the court effectively applies it to the applicant's benefit against over-restrictive expressive limits contained in the Integrity Commissioner's Report [at paras 20-26]. This is apparently done (IMHO the ruling is thin on doctrinal justification) by a broad (though proper) interpretation of the Vavilov 'reasonableness' doctrine, here in the course of a JR challenge to s.10 ['Improper use of influence'] of the Municipal Code of Conduct:[40] I now turn to the Integrity Commissioner’s finding of a breach of s. 10 of the Code.
[41] In her analysis of s. 10, she concludes that s. 10 prohibits a councillor from continuing to advocate for a position after Council reaches a contrary decision and, further, that it is a breach for a councillor to advocate about issues outside of the purview of Council.
[42] She concludes that the principle of requiring a high standard of ethical behaviour means that, after a Council decision has been made, continued dissent, respectful or otherwise, is conduct that would bring the Council into disrepute.
[43] I find that this interpretation of the meaning of s. 10 of the Code is unreasonable.
[44] In examining these principles, it is important to remove the analysis from emotionally-charged issues, such as those that arose around the flag issue.
[45] For example, let us consider the issue in the context of an infrastructure proposal. Should Council fail to pass a measure for a large sewer project in the municipality, does that mean that a councillor is precluded from continuing to advocate for a reconsideration of that issue? Would such conduct, regardless of the nature of such advocacy, breach the overarching principle of s. 5 of the Code of upholding a “high standard of ethical behaviour” and be “conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”?
[46] I find that it is unreasonable to conclude that advocating for a reconsideration of an issue, in and of itself, would breach s. 10 of the Code.
[47] Such an interpretation is clearly an unreasonable interpretation of s. 10.
[48] I also find that the Integrity Commissioner’s interpretation that s. 10 prohibits a councillor from advocating on issues outside of the purview of Council is an unreasonable one.
[49] If, once again, one considers this principle in the context of a less emotionally-charged subject, such as increased funding for research for cancer or world peace, is it reasonable to conclude that s. 10 would preclude a councillor from advocating for more research funds from the federal or provincial governments or for world peace? I think not.
[50] The drafting of s. 10 is significant. After the general principle of “Improper use of Influence” is stated, s. 10 provides an example of improper use of influence.
[51] It describes improper use of influence as the use of influence of office to obtain a “private advantage”. It further clarifies that “private advantage” does not include a matter that is of general or broad application.
[52] Had the drafters intended to adopt an interpretation similar to that reached by the Integrity Commissioner, one would expect that the example would not have been so restricted, nor would it have indicated that a general or broad advantage (such as increased cancer research funding) was not a breach of this section.
[53] I find that the Integrity Commissioner’s interpretation of the scope and meaning of s. 10 is unreasonable.
[54] One must keep in mind that the manner in which one undertakes advocacy is distinct from the right to do so. Although a councillor has the right to undertake an activity, how he or she does it might run afoul of the Code.
[55] A councillor must conduct such advocacy consistent with the general principles of s. 5 of the Code by upholding a “high standard of ethical behaviour” and by refraining “from engaging in conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”.
[56] As articulated in Robinson, at para. 127, “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’”. Depending upon the nature of the conduct, continued dissent or advocacy of matters outside of the Counsel’s jurisdiction could possibly run afoul the Code and, in particular, s. 15, Discreditable Conduct.
[57] Having found that the Integrity Commissioner’s interpretation of s. 10 of the Code is unreasonable, it follows that her finding that the Applicant breached s. 10 must be quashed. . Jubenville v. Chatham-Kent (Municipality)
In Jubenville v. Chatham-Kent (Municipality) (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, here brought by a municipal councillour against a municipal Integrity Commissioner’s findings of "a breach of s. 10 of the Code of Conduct" and a Council decision to suspend the applicant’s salary for 90 days.
Here the court dismisses part of the application dealing with s.15 ['Discreditable Conduct'] of the Municipal Code of Conduct:[36] The Integrity Commissioner found a breach of s. 15. The heading for that section is “Discreditable Conduct”. Its purpose is clear. Members of Council must treat everyone (be they members of the public, members of council, or staff) in a civilized way. They must not bully, intimidate, or otherwise abuse anyone. Finally, the s. 15 of the Code notes that the Human Rights Code, R.S.O. 1990, c. H.19 applies in addition to other federal and provincial laws.
[37] The Integrity Commissioner identified numerous communications and social media posts made by the Applicant that she determined contravened this section as they were abusive, bullying, and intimidating.
[38] The Integrity Commissioner balanced her right to maintain secrecy with the fact that her Report would be public. She did so in a reasonable way. It was reasonable to withhold the identity of the complainants. The issue before her was the content of the posts and not who complained about them. The withholding of the complaints’ identities does not equate to a lack of evidence to support her findings: see Robinson, at paras. 97-98.
[39] In the context of the emotionally-charged environment that arose before and after the motion that the Applicant brought to Council, the Integrity Commissioner’s decision that the Applicant breached s. 15 of the Code was a reasonable one. It was a decision that, based upon the evidence before her, fell within the reasonable array of outcomes available to the Integrity Commissioner. . Jubenville v. Chatham-Kent (Municipality)
In Jubenville v. Chatham-Kent (Municipality) (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, here brought by a municipal councillour against a municipal Integrity Commissioner’s findings of "a breach of s. 10 of the Code of Conduct" ['Improper use of influence'] and a Council decision to suspend the applicant’s salary for 90 days:[4] I conclude for the following reasons that the Integrity Commissioner’s finding of a breach of s. 10 of the Code of Conduct was unreasonable. The Integrity Commissioner had found a breach of two sections of the Code of Conduct. As one of those findings was unreasonable, the Report is quashed and remitted back to the Integrity Commissioner to reconsider her recommendation as to penalty.
[5] As the Council Decision was based upon the Report, it is quashed. Council shall reconsider this matter when it receives an amended Report.
....
[9] In the Report, the Integrity Commissioner found that the Applicant had breached two sections of the Code of Conduct: s. 10 of the Code, by using the influence of her office for a purpose other than the exercise of her official duties; and s. 15 of the Code, by failing to treat members of the public, other councillors, and staff in a civilized manner without abuse, bullying, and intimidation. The Integrity Commissioner recommended a 90-day suspension.
....
IV. THE OFFICE OF THE INTEGRITY COMMISSIONER AND CODE OF CONDUCT
[13] The existence of a code of conduct for a municipality and the position of Integrity Commissioner is mandated by s. 223.2 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”). The Act requires every municipality in Ontario to establish a code of conduct for its members of Council. Section 223.3 of the Act authorizes the municipality to appoint an Integrity Commissioner who is responsible for “performing in an independent manner the functions assigned by the municipality”, including investigating complaints of alleged breaches of the code of conduct and reporting the results of those investigations to municipal councils.
[14] Council adopted its Code of Conduct for Members of Council (“Code”) on August 12, 2019. The Code identifies principles of general application that guide the interpretation of more specific rules and obligations. Those general principles include in s. 5 of the Code the statement that members shall uphold a “high standard of ethical behaviour” and “shall refrain from engaging in conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”.
[15] The two sections of the Code for which the Applicant was found to be in breach are as follows:10. Improper use of influence:
No member of Council shall use the influence of his or her office for any purpose other than the exercise of her or his official duties.
Examples of prohibited conduct are the use of a member's position as a member of Council or local board or committee to improperly influence the decision of another person to the private advantage of the member, or the member’s parents, children or spouse, friends or associates, business or otherwise. This would include attempts to secure preferential treatment beyond activities in which members normally engage on behalf of their constituents as part of their official duties. Also prohibited is the holding out of the prospect or promise of future advantage through a member supposed influence within Council in return for present actions or inaction.
For the purposes of this provision, “private advantage” does not include a matter that is of general or broad application or that concerns the remuneration or benefits of a member.
15. Discreditable Conduct:
All members of Council have a duty to treat members of the public, one another, and staff in a civilized way and without abuse, bullying or intimidation, and to ensure that their work environment is free from discrimination and harassment. The Ontario Human Rights Code applies, in addition to other federal and provincial laws. [16] To assist the Integrity Commissioner in her investigation, she is given significant power to access information and documents: s. 223.4(2) of the Act.
[17] These investigatory powers are coupled with a strict duty of confidentiality. Section 223.5(1) provides as follows:The Commissioner and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part. [18] Somewhat offsetting this duty of confidentiality is s. 223.6(2) of the Act, which grants to the Integrity Commissioner the discretion to disclose in her report to Council “such matters as in the Commissioner’s opinion are necessary for the purposes of the report”.
[19] As s. 223.6(3) of the Act mandates that the municipality make public the Integrity Commissioner’s report, the Code recognizes that the Integrity Commissioner has the discretion to withhold names and identifying information of complaints where it is in the interest of a just and fair result to do so: see s. 19(c)(v) of the Code.
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