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Municipal - Councillor - Freedom of Expression. 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.
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