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Municipal - Councillor - Freedom of Expression. Noel v. The Corporation of the City of Dryden
In Noel v. The Corporation of the City of Dryden (Div Ct, 2026) the Divisional Court dismissed a municipal councillour's JR, this brought against council imposing "a number of corrective measures, including a requirement that the Applicant complete workplace civility training and attend Council meetings and City functions virtually until that training was completed" and this after an "investigator concluded that the Applicant had engaged in workplace harassment and bullying directed toward the City's Chief Administrative Officer and By-Law Enforcement Officer".
The court identifies and applies the Dore-Loyola case doctrine for the review of Charter matters in an municipal administrative context, here s.2(b) freedom of expression:[21] Finally, to the extent that the Applicant relies upon the Charter, the court reviews whether the impugned decision appropriately addressed the Charter protections relied upon. If it does, the court must then review whether the decision reflects a proportionate balancing of those protections and the relevant statutory objectives in accordance with the framework described in Doré v. Barreau du Québec, 2012 SCC 12, at paras. 55-58; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, at paras. 39-41; and, most recently, Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at paras. 60, 68-73.
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Freedom of Expression
[84] With respect to our review of the decision, the City accepts that the attendance restriction engaged the Applicant's rights under s. 2(b) of the Charter. I agree. The impugned measure limited the Applicant's ability to engage in political expression in a manner that promotes the values underlying s. 2(b), including democratic discourse, truth-seeking, and individual self-fulfilment: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 976; and Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, at para. 83.
[85] Under the Doré/Loyola Framework, the court must determine whether, having regard to the relevant factual and legal constraints, the decision-maker arrived at a proportionate balancing of the Charter protections at stake and the relevant statutory objectives: Doré v. Barreau du Québec, at paras. 55-58; Loyola High School v. Quebec (Attorney General), at paras. 39-41. If so, the decision is reasonable.
[86] As discussed above, I have concluded that the impugned measures were authorized by law and arose from a sufficiently defined legal authority. It is therefore unnecessary to revisit that issue here.
[87] The statutory objectives are also clear. The City was seeking to address substantiated findings of workplace harassment, protect municipal employees, ensure compliance with its workplace-harassment obligations, and prevent recurrence of the conduct found by the investigator. These are plainly important objectives.
[88] I reject the Applicant's submission that the attendance restriction was imposed for a punitive purpose, to silence him, embarrass him, damage his reputation, or prevent him from carrying out his political functions. The training requirement and temporary restriction on in-person attendance were directed toward remediation. They were intended to encourage reflection on the conduct found to have occurred, reduce the risk of repetition, and limit direct workplace interaction while corrective measures were implemented.
Minimal Impairment and Proportionality
[89] The Applicant argues that Council failed to choose the least impairing option available to it. He points to the original Durant recommendations and submits that Council impermissibly increased the restriction on his participation by requiring virtual attendance pending completion of training.
[90] I accept that less restrictive alternatives were available. The original recommendations proposed by Ms. Durant would have imposed fewer restrictions on the Applicant's participation in Council affairs than those ultimately adopted by Council.
[91] The existence of less restrictive alternatives, however, does not conclude the analysis. As the Supreme Court explained in Trinity Western University, at para. 81, the question is whether the decision falls within a range of reasonable outcomes that proportionately balance Charter protections with the relevant statutory objectives. At the same time, where a reasonably available alternative would reduce the impact on the protected right while still sufficiently advancing the statutory objectives, a decision may fall outside that range. The inquiry is necessarily contextual.
[92] In my view, Council's decision remained within the range of reasonable outcomes. Council was entitled to conclude that temporary separation of the Applicant from in-person workplace interactions pending completion of civility training would better address the workplace concerns identified in the Durant report than the alternatives proposed by the Applicant. Unlike the circumstances in Gammie and Bracken, Council was not acting on speculation, generalized concerns, or subjective discomfort. It had before it an investigation report concluding that workplace harassment had occurred and documenting significant impacts upon the complainants. As discussed above, it was not unreasonable for Council to rely upon those findings. Council was therefore entitled to regard them as establishing a legitimate workplace concern requiring a remedial response.
[93] Moreover, the restriction imposed was limited in both scope and duration. The Applicant was not removed from office, suspended as a councillor, deprived of voting rights, prohibited from speaking at meetings, or prevented from participating in Council business. He remained able to attend meetings remotely, debate issues, vote on matters before Council, and continue to serve his constituents. What was restricted was the manner of participation, not participation itself.
[94] Nor was the restriction indefinite. It remained in force only until completion of a workplace civility training program consisting of approximately 7.5 hours of online instruction directed toward civility, self-awareness, respectful communication, and workplace interactions. Upon completion of that training, the Applicant would immediately regain the ability to attend Council meetings and City functions in person. Unlike a suspension imposed for a fixed term, the duration of the restriction rested largely within the Applicant's own control. The Applicant could continue to perform all substantive functions of elected office while the restriction remained in place and could bring it to an end at any time by completing what was, in essence, a single day of online training.
[95] As in Del Grande, at para. 45, the Applicant remained able to perform the essential functions of elected office. That consideration weighs significantly in favour of the conclusion that the limitation on the Applicant's expressive interests remained proportionate to the statutory objectives Council was seeking to advance.
[96] In these circumstances, I am unable to conclude that Council was required to adopt the less restrictive alternatives identified by the Applicant. While another decision-maker might reasonably have preferred the original Durant recommendations, the role of this court is not to determine which option best protected the Applicant's expressive interests. The question is whether the measure chosen by Council proportionately balanced those interests with the City's statutory responsibilities. In my view, it did.
[97] Accordingly, I am satisfied that the decision reflects a proportionate balancing of the Applicant's s. 2(b) interests and the City's statutory objectives. The resulting limitation on expression was reasonable. . 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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