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Municipal - Jurisdiction by Necessary Implication. Noel v. The Corporation of the City of Dryden [harassment by councillour]
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".
Here the court considers where to locate the municipality's jurisdiction for these attendence restrictions, and finds it in a doctrine of 'jurisdiction by necessary implication' [para 31-33]:C. Council’s Authority to Impose the Attendance Restriction
[22] The Applicant submits that the City lacked jurisdiction to require him to attend Council meetings virtually pending completion of training.
[23] He argues that the impugned measure arose from an investigation conducted under HR‑RESP‑01, the City's Workplace Harassment Policy and Procedure. The Policy states at s. 2.1 that its purposes include promoting human rights, diversity, tolerance and workplace harmony and ensuring compliance with the Human Rights Code, R.S.O. 1990, c. H.19. The Applicant submits that the Policy does not state that it was enacted to implement the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). Accordingly, he argues that the City cannot justify restrictions on an elected councillor by reference to workplace-safety obligations that are not expressly identified in the Policy.
[24] That submission is not without force. If one focuses solely on the statement of objectives in s. 2.1, the Human Rights Code features more prominently than the OHSA. However, the Policy must be read as a whole. It contains many of the features ordinarily associated with workplace-harassment regimes, including provisions respecting complaints, investigations, findings, confidentiality, corrective action, and complaints involving members of Council. The Policy also expressly applies to "Council in their dealings with employees". The complaints made in this case invoked workplace-harassment concerns arising from councillor-employee interactions, and Council considered its workplace safety obligations in determining an appropriate response.
[25] The Applicant correctly observes that the Policy does not expressly authorize Council to prohibit an elected councillor from attending Council meetings in person. While the Policy repeatedly refers to "corrective action" and "measures to correct the situation", it does not define those terms. Nor does it expressly authorize Council to suspend attendance, exclude a councillor from Council chambers, restrict access to municipal facilities, or condition attendance upon completion of training.
[26] The issue is therefore whether the City possessed authority to impose such measures notwithstanding the absence of express language in the Policy.
Source of Statutory Authority
[27] The Applicant relies heavily upon Bracken v. Fort Erie (Town), 2017 ONCA 668 (Bracken), at paras. 65-73 to support his assertion that the issue has already been determined by an appellate court. In that case, the municipality issued a trespass notice that effectively excluded a member of the public from municipal property and sought to justify the measure by reference to workplace-safety concerns and municipal policies. The discussion relevant to the present Application arose in the context of the Court's analysis of whether the impugned restriction was "prescribed by law" for purposes of the Charter. In that context, the Court of Appeal held that a municipality cannot simply identify a statutory objective, workplace-safety concern, or municipal policy and assume that those considerations themselves supply the requisite legal authority. Rather, the municipality must identify the actual source of the power being exercised. Ultimately, the Court concluded that the authority for the trespass notice arose from the municipality's common-law powers as an occupier.
[28] I accept the principle articulated in Bracken. Although the discussion occurred in the course of the Court's Charter analysis, the underlying principle is equally applicable here. Before considering whether the City exercised its authority reasonably, the court must first be satisfied that a lawful source of authority exists.
[29] However, Bracken does not assist the Applicant to the extent he suggests.
[30] Unlike the municipality in Bracken, the City of Dryden does not rely solely upon workplace-safety concerns, the OHSA, or the Policy itself. Rather, it relies upon a broader statutory framework consisting of ss. 8, 10(2), and 270(1)2.1 of the Municipal Act, 2001, together with its obligations under s. 32.0.6 of the OHSA. Section 10(2) of the Municipal Act, 2001, grants municipalities authority respecting the health, safety and well-being of persons. Section 270(1)2.1 requires municipalities to adopt and maintain policies respecting the relationship between members of council and municipal employees. Section 32.0.6 of the OHSA requires employers to develop and maintain workplace-harassment programs, including procedures for reporting and investigating workplace-harassment complaints. Pursuant to those obligations, the City enacted the Policy. Further, s. 8(1) of the Municipal Act, 2001 directs that municipal powers are to be interpreted broadly so as to enable municipalities to govern their affairs as they consider appropriate and to enhance their ability to respond to municipal issues.
[31] This understanding of municipal authority is consistent with the Supreme Court's repeated direction that municipalities possess not only powers expressly conferred by statute but also powers arising by necessary implication from statutory grants of authority. While those powers remain delegated powers that must be exercised consistently with the purposes for which they were conferred, municipal legislation is to be interpreted broadly and purposively in a manner that enables municipalities to carry out their statutory responsibilities: Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231, at pp. 244-45; Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, at paras. 17-18; 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, at paras. 18-20; and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, at paras. 19, 24-25.
[32] Read together, these authorities establish that a municipality must identify a statutory source of authority, but that once such authority is identified, powers reasonably incidental to the effective exercise of that authority may arise by necessary implication.
[33] The City was therefore not merely authorized to receive workplace-harassment complaints. It was required to investigate such complaints, determine whether they were substantiated, and take corrective action where appropriate.
[34] The Applicant argues that while the Policy may apply to members of Council, its remedial provisions do not. In effect, he submits that the Policy authorizes the City to investigate complaints against councillors and make findings regarding their conduct, but does not authorize the City to take any meaningful corrective action in response to a substantiated complaint. I do not accept that interpretation.
[35] The Policy expressly applies to Council in its dealings with employees (s. 3.1). It establishes a process for receiving complaints, conducting investigations, making findings, issuing recommendations, and considering corrective action. It also contemplates a specific role for Council in reviewing, approving, changing, or rejecting an investigator’s recommendations (s. 14.3(f)). If the Applicant’s interpretation were accepted, the City could investigate a workplace-harassment complaint against a councillor and determine that it was substantiated, yet possess no practical ability to implement any corrective measure in response. Such an interpretation would substantially undermine the Policy. Read together with the broader statutory framework governing workplace harassment and councillor-employee relations, some authority to implement remedial measures in response to substantiated complaints necessarily follows. The question therefore becomes whether the impugned measures were sufficiently connected to those statutory responsibilities that they may properly be regarded as falling within the scope of the authority conferred by that framework.
Remedial Authority
[36] In addressing that question, I find the reasoning in Dhillon v. The Corporation of the City of Brampton, 2021 ONSC 4165 (Div. Ct.), at paras. 92-95 to be instructive. Although Dhillon arose in the municipal Code of Conduct context, the Divisional Court recognized that municipalities may adopt remedial measures responsive to misconduct even where the precise measure employed is not expressly enumerated in legislation, provided the measure is directed toward addressing the misconduct and preventing its recurrence rather than imposing punishment.
[37] That reasoning must, however, be applied with some care. As the Court explained in Magder v. Ford, 2013 ONSC 263, at paras. 66-69, broad grants of municipal authority cannot be used to circumvent specific legislative limits on municipal sanctions. Where the Legislature has prescribed the penalties that may be imposed, a municipality cannot invoke general powers elsewhere in the statutory scheme to enlarge those penalties. At the same time, Magder recognizes that genuinely remedial measures may remain available even where they are not expressly enumerated, provided they are directed toward addressing the consequences of the misconduct rather than punishing the offender.
[38] No comparable legislative limitation exists here. Neither the Municipal Act, 2001, the OHSA, nor the Policy prescribes an exhaustive code of corrective measures available to Council in responding to a substantiated workplace-harassment complaint involving a member of Council. Unlike the statutory scheme considered in Magder, there is no legislative provision setting out a closed list of permissible sanctions. The issue is therefore not whether the impugned measures appear on an approved statutory list. Rather, the issue is whether they were corrective measures reasonably connected to the City's statutory responsibilities and were remedial rather than punitive in nature. In my view, they were.
[39] The requirement that the Applicant complete workplace civility training before resuming ordinary in-person attendance was reasonably capable of being characterized as corrective action directed toward addressing the conduct found to have occurred and reducing the risk of repetition. Similarly, the temporary requirement that he attend Council meetings virtually pending completion of that training was directed toward limiting direct workplace interaction while those corrective measures were being implemented.
[40] Importantly, the Applicant was not removed from office, suspended as a councillor, deprived of voting rights, or prevented from participating in Council deliberations. He remained entitled to attend meetings remotely, to speak, to debate, and to vote. The measures altered the manner of participation on a temporary basis, but did not prevent him from continuing to perform the core functions of elected office.
[41] The same consideration was significant in Del Grande, at para. 45. There, the Court of Appeal upheld restrictions imposed upon an elected trustee, noting that they did not impair his ability to perform the essential functions of office. The Applicant's position is analogous. Although the impugned measures altered the manner in which he participated, they did not prevent him from performing the core functions of a municipal councillor.
[42] Accordingly, I conclude that the training requirement and temporary virtual-attendance requirement were corrective measures authorized under the Policy, sufficiently connected to the City's statutory responsibilities respecting workplace harassment and councillor-employee relations that they arose by necessary implication from that statutory framework and therefore fell within the City's jurisdiction.
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