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Municipal - Integrity Commissioner
MORE CASES
Part 2
. Jonker v. West Lincoln (The Township of)
In Jonker v. West Lincoln (The Township of) (Div Court, 2024) the Divisional Court considered a JR, here challenging a finding that - after "investigation by the Township’s Integrity Commissioner" - the applicant had "contravened two sections of the Township’s Code of Conduct for his actions" during the "January/February 2022 Freedom Convoy protest in Ottawa against government lockdowns and Covid-19 vaccine mandates"].
Here the court illustrates the circumstances and generation of a municipal 'integrity commissioner' report regarding a municipal councillour:[1] The Applicant, Mr. Jonker, while serving as a Councillor of the Respondent, the Township of West Lincoln (the “Township”), participated in the January/February 2022 Freedom Convoy protest in Ottawa against government lockdowns and Covid-19 vaccine mandates. A complaint was made about his conduct and, upon investigation by the Township’s Integrity Commissioner, Mr. Jonker was found to have contravened two sections of the Township’s Code of Conduct for his actions during the protest.
[2] Based on that finding (which it was legally obligated to accept as binding), The Township’s Council decided to reprimand Mr. Jonker and suspended his remuneration as a Council member for 30 days. He was also required to account for, and donate to a local charity, the value of any food or fuel that he received while participating in the Freedom Convoy (the “Decision”).
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Factual Background
[7] Mr. Jonker is a truck driver who also operates a trucking company. He served as an elected Councillor for the Township from 2018 to 2022. He participated in the Freedom Convoy Protest in Ottawa in late January and early February 2022, self-identifying as a leader and a spokesperson.
[8] On February 6, 2022, the Mayor of Ottawa declared a state of emergency in Ottawa pursuant to the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. On February 14, 2022, the Federal Government invoked the Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.) and declared a public emergency. Mr. Jonker’s participation in the protest continued after the invocation of the Emergencies Act.
[9] Because of his participation, Mr. Jonker was the subject of a complaint filed under the Township’s Complaint Protocol and s. 223.4(1) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”), alleging that he had violated numerous provisions of the Township’s Code of Conduct for Members of Council and Local Board Members (the “Code”).
The Integrity Commissioner’s Report
[10] Pursuant to s. 223.3(1) of the Act [SS: Municipal Act, 2001], a municipality is authorized to appoint an Integrity Commissioner “who reports to council and who is responsible for performing in an independent manner” a number of functions assigned to it by the municipality. These functions include “the application of the code of conduct for members of council”. The Township appointed the law firm of Aird & Berlis LLP as its Integrity Commissioner.
[11] Section 223.4 of the Act sets out the powers that the Integrity Commissioner has if they conduct an inquiry into a complaint “about whether a member of council… has contravened the code of conduct applicable to the member”. The Integrity Commissioner conducted such an inquiry and issued its report at the end of that inquiry.
[12] In its Report the Integrity Commissioner identified their concern as follows:54. Our concern does not lie with the Councillor’s participation in the peaceful component of the Demonstration, but with his participation as a leader and spokesperson for the Freedom Convoy organization, particularly after the federal public emergency declaration on February 14, 2022. His participation in and support of an illegal occupation was wholly inappropriate. [13] In its Report the Integrity Commissioner mentions Mr. Jonker’s s.2 Charter rights in the following way:57. Our finding is not intended to derogate from the Councillor’s freedom of expression or right to demonstrate peacefully. The issue is that the Councillor remained a vocal representative of the Demonstration after it had been deemed to be unlawful, while at the same time continuing in his role as a member of Council. At that point, a clear conflict between the two roles emerged and the Councillor was no longer able to fulfill his duty of loyalty to the Township. The Councillor ought clearly to have known that the Demonstration was unlawful and that his participation in an illegal activity could not have promoted public confidence nor could it in any way be viewed as upholding the spirit and letter of the laws of Ontario and Canada as he is required under the Code. [14] The Report concluded that Mr. Jonker had contravened s. 4.1(g) of the Code, which required that Council Members “recognize that they are representatives of the Township and that they owe a duty of loyalty to the residents of the Township at all times.”
[15] The Report also concluded that Mr. Jonker had violated s. 7.3 of the Code by receiving food and fuel during the Freedom Convoy protest. Central to this finding was the conclusion that Mr. Jonker’s role in the Freedom Convoy “was or could be perceived to be indirectly related to his role as a member of Council”. Thus, he was required to account for any benefits he received, and he failed to respond to communications from the Commissioner about those benefits.
[16] The Report concluded by providing Council with its recommendations on penalty.[Mr. Jonker] has contravened both Sections 4.1(g) and 7.1 of the Code. Based on these violations of the Code, we recommend, on the grounds of general deterrence and in order to maintain public confidence with respect to the ethical framework put in place by the Council to govern its members, that Council denounce the actions of the Councillor by way of a formal reprimand and impose a suspension of his remuneration as a member of Council equal to thirty (30) days. [17] The Commissioner also recommended that certain remedial measures be imposed on Mr. Jonker in relation to the benefits he received.
The Council’s Decision
[18] Pursuant to s. 223.4(1)(5) of the Act, “if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct”, Council “can impose either of the following penalties”, namely, “1. A reprimand. 2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council ...”
[19] On July 18, 2022, Council received the Commissioner’s Report and issued its Decision to sanction Mr. Jonker. In particular, the Council denounced his actions; issued a formal reprimand, a 30-day pay suspension and directed Mr. Jonker to account for the benefits he received and donate the value of those benefits to a community centre. . Jonker v. Township of West Lincoln
In Jonker v. Township of West Lincoln (Div Court, 2023) the Divisional Court considered a motion to add a municipality's Integrity Commissioner, here a Toronto law firm, to a JR:[5] Pursuant to 223.3(1) of the Municipal Act, 2001, SO 2001, c. 25, a municipality is authorized to appoint an “Integrity Commissioner”. The Commissioner reports to council and performs functions assigned by the municipality with respect to specific areas of responsibility, such as the application of the code of conduct for members of council.
[6] Aird & Berlis LLP is the Integrity Commissioner for the Township of West Lincoln (incorrectly identified in the proposed application as “John Mascarin, acting in his capacity as The Integrity Commissioner for the Township of West Lincoln. . Know Your City Inc. v. The Corporation of the City of Brantford
In Know Your City Inc. v. The Corporation of the City of Brantford (Div Ct, 2020) the Divisional Court considers a bias issue in the context of elected municipal officials:[44] The case law is clear that the bar is high for demonstrating bias when dealing with the decisions of elected officials performing legislative functions. City Councilors are not disqualified from participating in a vote simply because they have already expressed views, even strong views, on a matter: Pattison Outdoor Advertising LP v City of Toronto, 2016 ONSC 2419 (Div. Ct.), at paras. 43-45. In order to succeed, Know Your City will have to show that Council members had closed minds and that their minds could not be changed, as described in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 SCR 1170, at p. 1197: …there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of Council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard. . Villeneuve v. North Stormont (Township)
In Villeneuve v. North Stormont (Township) (Div Court, 2022) the Divisional Court considered administrative fairness during a town council meeting that adopted findings of the municipal Integrity Commissioner:[48] Interruptions in proceedings do not necessarily constitute a breach of procedural fairness. They may be appropriate as efforts to control a process and to ensure that speakers focus on the matter at issue: see El Sayed v. Ottawa Community Housing Corporation, 2019 ONSC 3703 (CanLII), at paras. 9-10 ; Murray v. Alatishe, 2019 ONCA 596 (CanLII), at para 16. . Villeneuve v. North Stormont (Township)
In Villeneuve v. North Stormont (Township) (Div Court, 2022) the Divisional Court, hearing a judicial review, found a sanction imposed by a municipal council to be 'unreasonable' because it exceeded the allowed sanctions under Municipal Act [s.223.4(5)] (it also wasn't recommended by the local Integrity Commissioner):[55] In the present case, the Council imposed the recommended penalty of suspending the Applicant’s remuneration for 45 days. However, it varied the corrective action recommended by the Integrity Commissioner by requiring the Applicant to only communicate with the CAO or with any member of staff through the Mayor, until the end of her term, which was approximately 14.5 months.
[56] The Applicant submits that Township Council thus imposed a sanction which was not available to it under the Municipal Act.
[57] In Dhillon, the Divisional Court quashed a resolution which required the member of Council to only communicate with members of the public using a City email address and “no other form of communication.” The Divisional Court found that this was an overly broad restriction on the Councillor’s ability to interact with the public. This action failed to balance his duties and the needs of his constituents with the remedial purposes behind Council’s resolution.
[58] In Altmann v. The Corporation of the Town of Whitchurch-Stouffville, 2018 ONSC 5306 (CanLII), Sutherland J. quashed a by-law which required the Mayor to communicate with staff solely by email, that he return his keys and access card to the municipal offices, and that he not be given access to municipal facilities, except the Town Hall during business hours to attend at the front desk for the duration of the council’s term. Sutherland, J. found that these were not “remedial actions” but sanctions, imposed in response to the failure of the Mayor to apologize as Council had required after a prior finding of contravention of the Code of Conduct. They were not “other actions” aimed at remedying his failure to apologize or to mend his relationship with staff. Instead, they were intended to punish the Mayor, and thus, they were sanctions not provided for under the Municipal Act.
[59] I conclude that the intention of the remedial action proposed by the Integrity Commissioner was a response to the problem of disrespectful email communications to the CAO. It was a reasonable limit, for a proportionally longer period than a similar restriction imposed earlier for similar conduct. It did not prevent the Applicant from carrying out her role but placed a buffer between her emails and the CAO, via the Mayor. As this Court noted in Dhillon at para. 87: a recommended corrective action must be “permitted in law and [be] designed to ensure that the inappropriate behaviour or activity does not continue.” I find that this can fairly describe the remedial action proposed by the Integrity Commissioner here to Township Council.
[60] However, the Township Council opted to vary the recommendation for the remedial action proposed by the Integrity Commissioner, and in doing so, I find that it acted unreasonably. Township Council imposed restrictions on the Applicant’s ability to email any member of staff, although the problematic email related to one exchange, and only with the CAO. It was thus overbroad, and not connected to the conduct under consideration by Township Council on this occasion. In making it broader than necessary, and in adding an additional 5.5 months in duration to the email limitation, this made the impact significantly longer than that recommended, or the similar restrictions imposed in January of 2020.
[61] I agree with the Applicant’s submission: “While a request that all written communications with the CAO be done through a third party could be construed as responding to the behaviour that was found to have breached the Code of Conduct (supposed inappropriate written communication with the CAO), the same cannot be said of a communication blackout with all members of the Township’s staff.” . Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner)
In Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner) (Div Ct, 2022) the Divisional Court reviewed basics of the Municipal Conflict of Interest Act:The Legislative Scheme
[19] The history of the MCIA was comprehensively outlined in the decision of this Court in City of Elliott Lake v. Pearce, 2021 ONSC 7859, at paras. 12-18. The concern that municipal politicians not profit as a result of holding office is one of long standing. So also is the concern that members of a municipal council have no interest to bias their judgment in deciding what is for the public good. These principles were contained in the Consolidated Municipal Act, S.O. 1903, c. 19.
[20] The MCIA was first enacted as a scheme that was separate from the Municipal Act in 1972: see Municipal Conflict of Interest Act, 1972, S.O. 1972, c. 142. The Act required a member of a council present at a meeting of council to disclose a conflict of interest, as defined by the Act, in a matter being considered, and refrain from participating in the discussion of the matter. It further authorized a ratepayer who became aware of a contravention of these requirements to apply to a judge for a determination of whether there had been a contravention. If the judge determined that there had been a contravention, the judge was required to declare the seat vacant and disqualify the member from being a member of any council for up to seven years, unless the contravention was committed through inadvertence or by reason of a bona fide error in judgment.
[21] The 1972 Act brought about a significant change. It marked the beginning of a movement away from a narrow approach to conflicts based on contracts involving the municipality in which the member may have an interest, towards a broader understanding that members must disclose all direct and indirect connections that might give rise to conflict or a perception of conflict. But importantly, the Act has always taken into account the concern that “municipal government can be, and should not be, deprived of the services of good people.”: City of Elliott Lake, at para. 14, citing Ian MacF. Rogers, "Conflict of Interest A Trap for Unwary Politicians", (1973), 11:3 Osgoode Hall LJ 537, at p. 538.
[22] The Act has undergone substantial amendment since 1972. It was amended most recently by the Modernizing Ontario's Municipal Legislation Act, S.O. 2017, c. 10 - Bill 68, Sched. 3, s. 8(1) (the “Modernization Act”). The Modernization Act made three important changes to the MCIA for our purposes.
[23] First, the Modernization Act added s. 1.1 to the MCIA. Section 1.1 is a statement of principles in relation to the duties of members of councils and local boards under the Act. It provides as follows:1.1 The Province of Ontario endorses the following principles in relation to the duties of members of councils and of local boards under this Act:
1. The importance of integrity, independence and accountability in local government decision-making.
2. The importance of certainty in reconciling the public duties and pecuniary interests of members.
3. Members are expected to perform their duties of office with integrity and impartiality in a manner that will bear the closest scrutiny.
4. There is a benefit to municipalities and local boards when members have a broad range of knowledge and continue to be active in their own communities, whether in business, in the practice of a profession, in community associations, and otherwise. [24] Second, the Modernization Act revised s. 8(1) of the MCIA to permit an Integrity Commissioner, in addition to an elector, to apply to a judge for a determination that the Act had been contravened.
[25] Third, the Modernization Act broadened the options available to a judge upon a finding that that MCIA had been breached. The judge was no longer obliged to declare the seat of the member vacant. Section 9(1) of the MCIA now provides as follows:9 (1) If the judge determines that the member or former member contravened section 5, 5.1 or 5.2, the judge may do any or all of the following:
1. Reprimand the member or former member.
2. Suspend the remuneration paid to the member for a period of up to 90 days.
3. Declare the member’s seat vacant.
4. Disqualify the member or former member from being a member during a period of not more than seven years after the date of the order.
5. If the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, if the party’s identity is not readily ascertainable, to the municipality or local board, as the case may be. . City of Elliott Lake v. Pearce
In City of Elliott Lake v. Pearce (Div Ct, 2021) the Divisional Court reviewed the law governing municipal integrity commissioners and it's history:
[2] The Municipal Act[2] authorizes municipalities in Ontario to appoint an Integrity Commissioner. The individuals appointed to this position are directed, by the legislation, to report to the council of the municipality but to carry out the responsibilities of the position in “an independent manner”.[3] Among the responsibilities of an Integrity Commissioner is the application of sections 5, 5.1 and 5.2 of the Municipal Conflict of Interest Act.[4] These sections explain the duty of members of council or local boards so as to avoid any conflict of interest. This responsibility extends to allowing for an application to be brought, by an Integrity Commissioner, to a judge to determine whether a member of council has contravened the sections noted.
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Legislative History
[12] To understand the basis for the position being taken, some history is helpful. It sets the context.
[13] The concern that municipal politicians not profit as a result of holding office is one of long standing. The following quotation comes from a decision rendered by the Supreme Court of Ontario in 1911:It is of the utmost importance that members of a municipal council should have no interest to bias their judgment in deciding what is for the public good and they should strive to keep themselves absolutely free from the possibility of any imputation in this respect.[8] [14] In Ontario, the first Municipal Conflict of Interest Act, separate from the Municipal Act, was enacted in 1972.[9] It represented a change in approach. The pre-existing provision of the Municipal Act provided for disqualification only in specific circumstances. It lacked any general or guiding principle. It was penal in nature and strictly interpreted. The new law centred on disclosure, rather than the specification of detailed disqualifying clauses. I note the policy on which this new approach was founded. It was, in part, to respond to the fact that under the old regime, failing to disclose an interest, not involving a contract as the source of a conflict, did not bring about forfeiture of office. At the same time the Act took account of the concern that “municipal government can be, and should not be, deprived of the services of good people.”[10]
[15] The 1972 Act was draconian in its impact. Under that legislation, to avoid any conflict of interest, the principal obligation of a member of council was to disclose any direct or indirect conflict of interest he or she had, as defined by the legislation, and to refrain from taking part in any discussion or vote with respect to the matter at hand. Failure to disclose would, upon application by an elector and the subsequent order by a judge, result in removal of the member of council and the seat declared vacant. The only exceptions were if the breach was through inadvertence or a bona fide error in judgment.
[16] The Municipal Conflict of Interest Act was revised in 1983.[11] Conflicts, as defined in the 1972 Act, had continued to centre on those caused by involvement (direct or indirect) with contracts to which the municipality was a party or which could be affected by a decision of the council but a catchall had been added (“or, in any other matter in which the council or local board is concerned”).[12] The 1983 Act had no specific reference to contracts and moved to a more general understanding of how to recognize a conflict (“where the member…has any pecuniary interest…in any matter and is present at a meeting of the council….at which the matter is the subject of consideration”.)[13]The 1983 Act was uncompromising when a conflict of interest was present. An “elector,” within six weeks of learning of a potential conflict, could apply to the court for a determination as to whether the Municipal Conflict of Interest Act had been contravened.[14] If there was such a breach the judge had no option. The court was compelled to declare the seat of the member vacant and, in addition, could disqualify the member from returning, as a member, for up to seven years and, where the conflict had resulted in financial gain, could require the member to make restitution.[15] The only exception, as it had been in the 1972 Act, was in circumstances where the contravention was through inadvertence or by reason of a bona fide error in judgment.[16]
[17] The authority of the judge upon a finding of a contravention of the Municipal Conflict of Interest Act remained unchanged until 2017 with the enactment of the Modernizing Ontario’s Municipal Legislation Act[17]. Schedule 3 of that statute amended the Municipal Conflict of Interest Act. It introduced s. 1.1 which provides an overarching and general statement of principle describing the duties of members of council:1.1 The Province of Ontario endorses the following principles in relation to the duties of members of councils and of local boards under this Act:
1. The importance of integrity, independence and accountability in local government decision-making.
2. The importance of certainty in reconciling the public duties and pecuniary interests of members.
3. Members are expected to perform their duties of office with integrity and impartiality in a manner that will bear the closest scrutiny.
4. There is a benefit to municipalities and local boards when members have a broad range of knowledge and continue to be active in their own communities, whether in business, in the practice of a profession, in community associations, and otherwise. [18] It added to those who could apply to a judge for a determination that the Act had been contravened. It was no longer only “an elector” but also “an Integrity Commissioner” and “a person demonstrably acting in the public interest” who were authorized to make such an application.[18] Most importantly, the judge was given flexibility in the options available upon a finding that the Municipal Conflict of Interest Act had been breached. The judge was no longer obliged to declare the seat of the member vacant. There were options:9 (1) If the judge determines that the member or former member contravened section 5, 5.1 or 5.2, the judge may do any or all of the following:
1. Reprimand the member or former member.
2. Suspend the remuneration paid to the member for a period of up to 90 days.
3. Declare the member’s seat vacant.
4. Disqualify the member or former member from being a member during a period of not more than seven years after the date of the order.
5. If the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, if the party’s identity is not readily ascertainable, to the municipality or local board, as the case may be.[19] [19] The Legislature went further. It provided guidance as to some of the factors that could be considered, by the judge, in exercising her or his discretion in the presence of a breach of the Act:(2) In exercising his or her discretion under subsection (1) the judge may consider, among other matters, whether the member or former member,
(a) took reasonable measures to prevent the contravention;
(b) disclosed the pecuniary interest and all relevant facts known to him or her to an Integrity Commissioner in a request for advice from the Commissioner under the Municipal Act, 2001 or the City of Toronto Act, 2006 and acted in accordance with the advice, if any, provided to the member by the Commissioner; or
(c) committed the contravention through inadvertence or by reason of an error in judgment made in good faith.[20]
[Emphasis added] [20] Over time the legislation has evolved. It has moved from a narrow set of specified restrictions, generally associated with contracts involving the municipality and in which the member may have an interest, to a broad understanding that all matters where there is a connection to both the municipality and the member can be the catalyst for a conflict of interest. The last set of changes broadens the participation in the court proceedings that determine if the Act has been contravened. The legislation has moved beyond relying on individual electors who may have a personal interest, to include the Integrity Commissioner, a public official, with a mandate to ensure compliance with the Municipal Conflict of Interest Act in the general interest of the public and to include others who, without the legislative mandate, nonetheless, are concerned in the public interest. With respect to the recourse available to the judge upon determining that a member with a conflict of interest has failed to comply with the duty the Act imposes, the legislation has broadened from an obligation to declare the member’s seat vacant to a range of escalating options which the judge is to apply in her or his discretion.
[21] To my mind this is all consistent with the intent expressed at the time the 1972 Act was brought forward and the principles now found in s. 1.1. The concern was not just to demand, through strict measures, that members act with integrity and impartiality, but also not to go so far as to discourage good and competent people from taking on public responsibilities, both of which are directed to the idea that local government should be open, competent and transparent. There is a balance to be struck.
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