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Charter - Administrative (6). Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Ont CA, 2025) the Ontario Court of Appeal allowed joined appeals, here brought against investigative administrative "summons demanding the production of documents and, depending on how the summons is interpreted, responses to interrogatories (“information”) from Binance about its operations ...".
The court decides a s.8 Charter issue, here in this Securities Act [s.13 'Power of investigator or examiner'] administrative-investigative context:[83] I will begin by returning to the principles that apply in assessing the reasonableness of searches and seizures in the regulatory context. As I have explained, the decision in Hunter v. Southam Inc. outlined the principles that operate in identifying the reasonableness of a search in criminal cases. Those principles were helpfully distilled by Wilson J., in McKinlay Transport, at pp. 642-43. In simple terms they require that: (1) a warrant be obtained from an impartial adjudicator; (2) based on reasonable and probable grounds to believe that an offence has been committed; and (3) reasonable and probable ground to believe that evidence of the offence will be obtained. Of most relevance to this appeal, they also require that (4) “only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation” (or “principle four”).
[84] As I have acknowledged and explained, these criminal law principles cannot be applied in most circumstances to regulatory searches and seizures without undermining the ability of regulators to ensure compliance. Accordingly, reasonableness is determined in the regulatory context using a more flexible approach, sensitive to the needs and purposes of the regulatory model in question. In McKinlay Transport Ltd., Wilson J. therefore endorsed the “rough model of reasonableness employed in production of documents in civil cases”, where “what is reasonable ‘depends upon consideration of what is sought, from whom, for what purpose, by whom, and in what circumstances’”: McKinlay Transport Ltd., at p. 646, quoting Alberta (Human Rights Commission) v. Alberta Blue Cross Plan, 1983 ABCA 207, 1 D.L.R. (4th) 301, at p. 307.
[85] It is well established that when using this rough and ready metric that the first three Hunter v. Southam Inc. principles do not apply at all in most regulatory contexts: Thomson, at pp. 531-32, per La Forest J. Since they are not relevant to the issue before me, I will say no more about them.
[86] I also accept the Commission’s position that principle four from Hunter v. Southam Inc. cannot generally be applied directly in regulatory cases. This is also well settled by the case law: Thomson, at p. 532; Branch, at para. 50-52. A moment’s reflection explains why this is so.
[87] First, principle four requires in criminal cases that to constitute a reasonable seizure, the documents seized must be “strictly relevant to the offence under investigation” (emphasis added): McKinlay Transport, at p. 642-43. Yet, in the regulatory context, it will not ordinarily be possible to ensure effective regulation without permitting regulators to engage in general compliance inquiries, even where they do not have reasonable grounds or even reasonable suspicion that an offence has occurred: McKinlay Transport Ltd., at pp. 648-49. Given that there may be no specific offence under investigation for a legitimate inquiry to be undertaken, it would be illogical to limit the seizure of documents or information to material “relevant to the offence under investigation” as set out in Hunter v. Southam Inc.
[88] Second, principle four imposes a “strictly relevant” limitation. In circumstances where a physical search is underway to decide what, if anything, to seize, as is typically the case in the criminal context, it is possible for authorities to vet the documents before deciding what to take away. In the criminal context, using a “strictly relevant” restriction is generally workable. But where documents or information are ordered to be produced by a regulator, the regulator will not see those documents or receive that information until it arrives, and therefore will have no way of assuring relevance: McKinlay Transport Inc., at p. 650. Hence, a “strict” relevance requirement cannot sensibly be imposed. The most that can be expected is that the regulator will identify categories of documents that they have reason to believe may be relevant.
[89] Having said this, the fact that principle four does not generally apply to regulatory seizures does not mean that s. 8 is unconcerned about the relevance of the material demanded in the regulatory context. This is key. In Thomson, after finding that Hunter v. Southam Inc.’s principle four does not apply to production orders issued to regulate anti-competition restrictions, La Forest J. made clear in his discussion at p. 530, that a less demanding relevance requirement operates. Namely, “The material sought must be relevant to the inquiry in progress.” He explained that “[t]he question of relevancy … must be related to the nature and purpose of the power accorded”. Then, at p. 532, speaking in the context of a subpoena duces tecum demanding the production of documents, he cited two components of the American “relevance to a lawful inquiry” test to explain how relevance is to be determined. The first component is that “the subpoena must be sufficiently clear and specific to inform the subpoenaed party of precisely what documents are being demanded”, and the second is that “the subpoena must only be as broad as necessary for the purposes of the inquiry in progress.” He added that in the United States any “unduly broad subpoena will be struck down on grounds of burdensomeness”: Thomson, at p. 532. He described these requirements as “self-evidently sensible”, “common sense standards by which to measure [relevance]”: Thomson, at p. 532. It follows that La Forest J. determined that even in the regulatory context, “the material sought must be relevant to the inquiry in progress”, although not strictly relevant, and that it will not be relevant if the demands made in the subpoena are broader than needed for the purposes of that inquiry.
[90] Things would have been simpler had all the justices in Thomson either signed onto La Forest J.’s judgment or weighed in directly on whether they agreed with this approach, but they did not do so. What is clear, however, is that they all considered a relevance evaluation to be an essential component of the power to seize. Wilson J., with whom Lamer J. expressed agreement, would have applied the full fourth Hunter requirement that the documents be strictly relevant to an offence under investigation: Thomson, at p. 442, 446, 501. Although Sopinka J. found that s. 8 was not engaged, he affirmed that, altogether apart from the Charter, and despite the breadth of the language of the statutory authority to compel production in that case, that authority was limited by the requirement “that the documents be germane to the issues and not subject to privilege”: Thomson, at p. 613, quoting with approval Marceau J. in Canada (Director Of Investigation and Research) v. Can. (Restrictive Trade Practices Comm), (1985), 1985 CanLII 3143 (FCA), 18 D.L.R. (4th) 750 (Fed. C.A.), at p. 63. He continued on p. 613 of Thomson to explain: “In order to comply with this duty, the Director must disclose the purpose of the inquiry in sufficient detail to enable the persons affected and the court to determine whether the documents are relevant to the issue. Anything less would enable the Director to embark on pure a fishing expedition.” L'Heureux-Dubé J., who, unlike Sopinka J., found that s. 8 of the Charter was engaged, expressed agreement with Sopinka J. that “a judge sitting in review has significant powers which at least prevent the orders to be used in a ‘fishing expedition’”: Thomson, at p. 595. A review could not prevent a “fishing expedition” without a critical assessment of the breadth of the production order to ensure that the documents to be seized are relevant to the matter being investigated. L'Heureux-Dubé J. can be taken as agreeing with La Forest J. that s. 8 imposes a relevance requirement even in regulatory cases. In my view, the relevance requirement that La Forest J. articulated is the lowest common denominator in the Thomson decision, and therefore represents the law. Even in the regulatory context, “The material sought must be relevant to the inquiry in progress.” See Thomson, at p. 530. It will not be if the demands made in the subpoena are broader than needed for the purposes of that inquiry.
[91] In support of its position that s. 13 is not subject to a relevance limitation, the Commission relied upon the broad language of s. 13, which does not reference relevance. It also submitted that in McKinlay Transport Ltd., the Supreme Court upheld a similar provision in s. 231(3) of the Income Tax Act, R.S.C. 1952, c. 148, which like s. 13 of the Securities Act, contained no relevance limitation. In my view, the Commission misreads McKinlay Transport Ltd. That decision, in fact strongly supports the approach that La Forest J. took in Thomson. As Wilson J. noted in McKinlay Transport Ltd., prior case law, including at the Supreme Court, had used ordinary principles of statutory interpretation to read down s. 231(3) (which was every bit as broadly worded as s. 13 of the Securities Act). As a result, the authority to order production of documents and information under that provision could be used only in circumstances where, examined objectively, production was for a purpose authorized under the Income Tax Act, and the information demanded was relevant to the tax liability of the person or persons whose liability was under investigation: McKinlay Transport Ltd., at pp. 639-40. Three things are noteworthy about this. First, these are the same essential relevance considerations that La Forest J. endorsed as constitutionally required in Thomson. Second, these requirements are so self-evident as reasonable limitations on any power to demand production that they were imposed on s. 231(3), even without Charter analysis, notwithstanding the breadth of the language of s. 231(3). And third, and most importantly, s. 231(3) was upheld as constitutionally valid only after Wilson J. emphasized that it satisfied this relevance requirement. When she posed the issue before the court, Wilson J. asked whether s. 231(3), which was already “narrowed in scope as a result of the common law rules relating to statutory interpretation”, could withstand Charter scrutiny: McKinlay Transport Ltd., at p. 640.
[92] Apropos of this last point, when Wilson J. explained why she was upholding s. 231(3) as against the Charter challenge she said, at p. 648, that the Minister “must be given broad powers in supervising this regulatory scheme to audit taxpayers’ returns and inspect all records which may be relevant to the preparation of these [tax] returns” (emphasis added). In explaining why s. 231(3) was “the least intrusive means by which effective monitoring of compliance with the Income Tax Act can be effected”, she added, “[i]t simply calls for the production of records which may be relevant to the filing of an income tax return” (emphasis added): McKinlay Transport Ltd., at pp. 649-50. It is evident that when she spoke of documents that “may be relevant”, Wilson J. was not endorsing a fishing expedition to examine all documents the taxpayer controls in the hope of uncovering something that could happen to prove relevant. She was no doubt proceeding on the understanding that the legislation required the production only of those documents for which there is a basis to believe may be relevant to the preparation of the tax returns under investigation.
[93] I am therefore persuaded that the s. 8 challenge to s. 231(3) of the Income Tax Act in McKinlay Transport Ltd. failed only because, as interpreted, that provision already limited production to documents that may have been relevant to the compliance investigation based on the same considerations that La Forest J. expressed as constitutional requirements in Thomson.
[94] I have reviewed the authority the Commission relies upon to the contrary. It does not support its position that the power to demand production under s. 13 is not limited by a relevance requirement. British Columbia (Securities Commission) v. Stallwood, (1995), 1995 CanLII 1515 (BC SC), 7 B.C.L.R. (3d) 339 (B.C. Sup. Ct.), did not involve a production order but instead involved challenges to subpoenas compelling witnesses to testify in an investigation ordered by the securities regulator. The Court did not reject a relevance inquiry when it rejected the petitioners’ submissions that the regulator in that case had an obligation to minimize or restrict the investigation it was undertaking. It noted instead that the effect of the “Investigating Order setting out the scope of the investigation” was to define “what is relevant”: Smallwood, at para. 32. In effect, in the context of a subpoena or order to testify, it is sufficient that the regulator identify what is being investigated, and to give direction on the scope of the compelled testimony. But as La Forest J. made clear in Thomson, at p. 532, when it comes to the production of documents, there are two components to a necessary relevance inquiry. The first component is that “the subpoena must be sufficiently clear and specific to inform the subpoenaed party of precisely what documents are being demanded” and the second component is that “the subpoena must only be as broad as is necessary for the purposes of the inquiry in progress.” This case, of course, involves a challenge to the breadth of a production order made by way of a Summons that makes wholesale demands for documents, whether there is any reason to believe they may be necessary for the purpose of the inquiry in progress or not. The Smallwood case is not instructive.
[95] The decision in North America Frac Stand. Inc. (Re), 2020 ABASC 40, does not reject a relevance inquiry, either. There the Alberta Securities Commission upheld what commission staff admitted was a broad demand for production only after the regulated party did not comply with an earlier demand to provide relevant business emails, making the demand for broader production appropriate: at para. 63. I need not express my views on this decision. The instant point is that it does not support the proposition advanced by the Commission.
[96] In my view, the relevance requirement described by La Forest J. in Thomson is constitutionally required for most regulatory seizures, as a matter of principle. This is because the authority to demand production of documents, even in a regulatory setting, represents an imposing exercise of state authority, regardless of how low the reasonable expectation of privacy may be. Moreover, the power to demand production is conferred for a purpose. Speaking of the equivalent power to summons documents in British Columbia securities legislation in Branch, Sopinka and Iacobacci JJ. commented that, “the predominant purpose of the inquiry is to obtain the relevant evidence for the purpose of the instant proceedings”: para. 35. It only stands to reason that to be reasonable, a seizure must be related to the purpose for which the power of compulsion was created, and that if there is no realistic foundation for believing the target documents will be relevant to that inquiry, the seizure is not needed to facilitate a proper inquiry and is improper.
[97] I also note that the power of the investigator to issue a summons under s. 13 of the Securities Act is the same power that is vested in the Superior Court of Justice by r. 53.04 of the Rules of Civil Procedure “for the trial of civil actions”. Rule 53.04(1) empowers witnesses who are compelled to the trial of civil actions to produce “documents or other things in [their] possession, control, or power relating to the matters in question”. A document that is not relevant to the proceeding does not relate to the matters in question. A subpoena can be quashed if it demands the production of documents that the party issuing the subpoena cannot show to be relevant: Ramos v. Ontario (Independent Police Review, Director), 2012 ONSC 7347 (Div. Ct.), at para. 18. This not only underscores the fundamental nature of the relevance requirement but also illustrates that a summons demanding information that the Commission has no basis to believe may be relevant is not authorized by law and would contravene s. 8.
[98] I hearken back to Wilson’ J.s conclusion that what is reasonable “depends upon consideration of what is sought, from whom, for what purpose, by whom, and in what circumstances”: McKinlay Transport Ltd., at p. 646. I cannot conceive that it would be reasonable for the Commission to demand an overbroad array of documents to enable it to conduct a fishing expedition of the entire business in a speculative search for documents where there is no reasoned basis for believing that they may be relevant to the inquiry that is being undertaken.
....
(3) Was the discretion to issue the Summons exercised reasonably?
[114] Binance argues that Doré governs since the investigator’s statutory discretion to issue the Summons implicated its s. 8 Charter rights. It submits that pursuant to Doré the investigator was therefore required to consider proportionality and to balance the relevant Charter values before issuing the Summons. It argues that since the Commission failed to show that the investigator undertook to complete the required balancing of Binance’s privacy interests as against the Commission’s investigatory objectives the issuance of the Summons must be found to be unreasonable. The Commission argues, to the contrary, that Doré does not apply because Binance has not established that the seizure required by the Summons constituted an unreasonable seizure, and even it if did, the decision to issue the Summons was proportionate.
[115] I agree with the Commission that the Doré test does not apply in the first place, but not for the reasons given by the Commission. The Commission misconceives the Doré test. Doré does not require a finding that a Charter right is infringed before it applies. As Côté J. explained in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 65, “it has consistently been held that the Doré framework applies not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights” (emphasis in original). Since Binance had a reasonable expectation of privacy, the issuance of the Summons to seize those documents clearly implicated Binance’s Charter rights.
[116] I nonetheless agree with the Commission’s bottom line argument that the Doré test does not apply. In my view, the issues before us are not governed by the Doré test but by the legal standards established under s. 8 of the Charter, which provide a dedicated methodology for assessing the constitutional validity of searches and seizures. This s. 8 jurisprudence already balances competing interests and addresses the proportionality issue through its assessment of the intensity of the reasonable expectation of privacy and its relevance inquiry. I do not understand Doré to have overtaken this body of law by substituting a looser deferential examination of the proportionality of the balance that has been achieved between the Charter implications of the discretionary decision to exercise the power of search and seizure and the competing administrative interests. In my view, any state agent who authorizes or exercises a search or seizure is bound to comply correctly with the requirements of s. 8 of the Charter, even when exercising a statutory discretion. It would not be fitting to hold that even though the s. 8 requirements have not been met, it was reasonable for the party authorizing the seizure to strike the balance they did. The Doré standards add nothing to the instant case and can only confuse the law if applied in this context.
[117] My views in this regard are assisted by the majority decision in York Region. This case involved the judicial review of a grievance arbitration decision that raised s. 8 issues. The majority did not resort to the Doré test in reviewing that decision. It applied a correctness standard based on the requirements of s. 8 of the Charter. Since the arbitrator erred in law in concluding that Charter rights did not apply to a search of a teacher’s computer conducted by a public-school principal, and the decision of a school superintendent to seize a document, the decision was set aside.
[118] I would therefore dismiss this ground of appeal. . 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. . Priest v. Canada (Attorney General) [practical notice of constitutional question]
In Priest v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from an unsuccessful JR of an denied (second) CRA administrative decision. This second CRA decision resulted from an earlier successful JR which remitted the matter back down to the CRA a second time.
Here the court considered the appellant's argument that the CRA disregarded a Charter s.15 argument where there was "no explicit reference to the Charter" in the admin proceeding (which I call an issue of 'practical notice'):[19] Finally, Mr. Priest challenges the absence of any analysis by the Manager of his arguments under section 15 of the Charter. This contention must fail. As stated above, the fact that there is no explicit reference to the Charter in the Second IF Decision does not necessarily render the decision unreasonable. Here, the Manager clearly and meaningfully grappled with the essence of Mr. Priest’s adverse impact discrimination claim. Again, reasons for decision in the administrative law context are not irreversibly problematic simply because they do "“not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred”" (Vavilov at para. 91).
[20] Further, reviewing courts must read reasons for decision in the administrative law context "“in light of the history and context of the proceedings in which they were rendered”" (Vavilov at para. 94). In the present case, as noted in Priest 2022, Mr. Priest did not raise the Charter when he made his request for individual feedback (Priest 2022 at para. 35; Appeal Book at p. 1457).
[21] Be that as it may, it is implicit in the Second IF Decision that the Manager was alert and sensitive to Charter values, when he reconsidered Mr. Priest’s request for individual feedback. In order to establish a claim under section 15 of the Charter, a claimant must, inter alia, demonstrate that the impugned law or state action imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage (R. v. Sharma, 2022 SCC 39 at para. 28 (Sharma)). However, that impact must be "“disproportionate”" to engage section 15 (Sharma at para. 40; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 159, leave to appeal to SCC refused [2025] S.C.C.A. No. 41628).
[22] Again, the Manager inquired as to whether the Education Requirement had the adverse effect of excluding candidates to the CO-3 staffing process based on their age. In so doing, he implicitly inquired on whether that requirement had a disproportionate impact on Mr. Priest and the other members of his age group. The Manager concluded that the Education Requirement had no adverse effect or impact on Mr. Priest and people of his age group. As stated, this finding was within his reach based on the record before him. Therefore, any formalistic Charter analysis would have ended there. . Cardoso v. LECA [practice constitutional notice]
In Cardoso v. LECA (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR where the IPC adjudicator failed to adequately consider it's administrative Charter s.2(b) Dore/Loyola jurisdiction, here where - while no Notice of Constitutional Question was served - case law had held that the Charter played a role in the FIPPA s.23 'public interest' exemption, which was raised:[3] Although other issues were raised on this application for judicial review, the applicants’ main focus is the alleged failure of the IPC Adjudicator to engage with the Canadian Charter of Rights and Freedoms, specifically the s. 2(b) guarantee of freedom of expression, including freedom of the press. The failure to address the Charter is the basis upon which I would grant this application, for the reasons set out below.
....
[10] Within his [SS: IPC] submissions about s. 23 and the public interest, Mr. Cardoso cited and quoted from Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 37, as follows:[T]here is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. ... [11] The Criminal Lawyers’ Association case also arose from an access request under FIPPA that included an issue about s. 23.
[12] It is apparent from Mr. Cardoso’s submissions that he was not seeking any of the relief that would require the service of a notice of constitutional question either under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, or under the parallel rule at the IPC. He was submitting that the Charter was relevant to the public interest analysis in s. 23 of FIPPA.
[13] Mr. Cardoso, then unrepresented, did not mention what is sometimes referred to as a Doré/Loyola balancing analysis. The Doré/Loyola cases address the required approach to a Charter review of an administrative decision, by asking whether the decision reflects a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.
[14] In summary, the IPC Decision concluded as follows:....
(vi) On the Charter, the [SS: IPC] reasons for decision said as follows, at para. 76:The appellant [Mr. Cardoso] also appears to raise a constitutional argument, albeit in passing (not having taken the steps required to raise constitutional questions), submitting that “the disclosure of documents that would serve the public interest is such an important concept that it was even recognized by the Supreme Court of Canada as a potential Charter right”.
Footnote to paragraph: “The appellant cites Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 SCR 815.”
[Emphasis added.] ....
Charter Issues
[19] The applicants submit that the Adjudicator erred in failing to consider Charter rights and values, focusing on the s. 2(b) guarantee of freedom of expression and freedom of the press. The applicants submit that the Adjudicator should have both considered the Charter under s. 23 of FIPPA and engaged in a Doré/Loyola balancing of the LECA decision. Neither was done.
[20] The applicants rely on York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, at para. 91. The Supreme Court held that where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision.
[21] The applicants further rely on the Criminal Lawyers’ Association case, which Mr. Cardoso quoted in his submissions to the IPC as set out above.
[22] LECA acknowledges that the Adjudicator did not expressly reference the Charter (other than to say it was not properly raised). However, LECA submits that the Adjudicator’s discussion of the public interest under s. 23 implicitly considered and balanced freedom of expression. The IPC similarly submits that a Doré/Loyola balancing is embedded into FIPPA because its structure requires considering the public’s right to access as well as privacy interests. In short, the respondents do not dispute the relevance of the Charter but submit that it was implicitly addressed in the IPC Decision.
[23] I am not prepared to imply that the Charter was properly considered in this case. In my view, the single paragraph in the reasons for decision that mentions the Charter is inconsistent with an implication that the Adjudicator considered the Charter at all. The applicants submit that the adjudicator wrongly focused on the lack of a notice of constitutional question. I agree. As a result of that error, the Charter was ignored.
[24] I therefore conclude that the Adjudicator erred in failing to properly consider the Charter. Some of the reasons for decision may well overlap with what may be said in the consideration of freedom of expression and the public interest under s. 23, or a Doré/Loyola analysis, but that is insufficient.
[25] Given the stark nature of this error, even if the standard of review was reasonableness, this error alone would render the IPC Decision unreasonable.
[26] In the circumstances, the appeal to the IPC should be done anew. Given that the issues have developed somewhat since the original submissions to the IPC, the parties should have the opportunity for new or supplementary written submissions to the new adjudicator. In that regard, the issues would benefit from submissions on the Charter under s. 23 in particular, and the role of the Doré/Loyola analysis in this case, as well as any other submissions the parties choose to advance about this or the other issues on the appeal. . Robinson v. Pickering (City)
In Robinson v. Pickering (City) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against "two decisions of council in which council unanimously voted, in the first instance, to suspend the applicant’s salary for 30 days and, in the second, to suspend her salary for 60 days", these "based on recommendations provided by the respondent integrity commissioner, who determined, following investigation of various complaints, that the applicant had violated council’s code of conduct".
The court considers Charter s.2(b) freedom of expression issues, here in an administrative context:[124] The Supreme Court of Canada has repeatedly held that administrative decisions may limit an individual’s rights under the Canadian Charter of Rights and Freedoms[67] where the limit is proportional to the statutory objective that the administrative agency is required to fulfill.[68] “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”[69]
[125] In the instant case, there is no doubt that the Second Decision engaged with the applicant’s argument about her right to freedom of expression. The Commissioner expressly acknowledged the importance of this right.[70]
[126] The Commissioner engaged in an appropriate balancing exercise. As reflected in the Second Report, the Commissioner expressly acknowledged that “[e]lected municipal officials are leading players in local democracy. They are democratically chosen to look after the community’s interests.”[71] The Commissioner recognized the importance of elected officials exercising free speech, noting that a councillor’s “freedom of expression is a crucial instrument for achieving effective participation and good municipal government.”[72] The Commissioner explained that elected municipal councillors function as “conduits for the voices of their constituents: they interpret and convey their grievances respecting municipal government.”[73]
[127] On the other hand, the Commissioner properly recognized that 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.”[74] Moreover, while acknowledging the important role that elected representatives play as “conduits for the voices of their constituents,” the Commissioner was sensitive to the need not to countenance unlimited and possibly harmful expression by allowing an elected official to justify their position as “merely reflecting the views of her constituents.”[75] The Commissioner reasoned that it would be “completely unacceptable for a Councillor to publicly make statements in support of spousal abuse, antisemitism or slavery, regardless of whether these were the ardently-held views of one’s constituents.”[76]
[128] Mindful of the need to balance the applicant’s rights with the rights of other individuals, the Commissioner also recognized that an elected official’s conduct that seeks to fuel “unfounded fears” and impair “the rights of minority and marginalized groups – in this case LGBTQ+”[77] has the potential to “have a corrosive effect on democracy, allowing the loudest voices to drown out the marginalized and vulnerable in the community.”[78]
[129] In my view, faced with what the Commissioner found to be conduct by the applicant “reflecting and promoting intolerance, homophobia and transphobia,”[79] the Commissioner’s finding of a breach of the Code of Conduct and the recommended sanction represents a reasonable, balanced, and proportionate limit on the applicant’s right to freedom of expression given the Commissioner’s statutory mandate to enforce the City’s Code of Conduct in the public interest. In this regard, the Commissioner provided a proportionate response, recommending the sanction of a 60-day suspension of pay that, while less than the maximum sanction available (90 days), also recognized that the applicant had already been found to have been in breach of s. 05.01 on a previous occasion.
[130] Thus, I agree with the submissions of respondents’ counsel that, given the circumstances of the case, the applicant has failed to demonstrate that Council’s acceptance of the Commissioner’s Second Report constitutes an unreasonable and disproportionate balance between the applicant’s Charter interests in freedom of expression and Council’s statutory mandate to enforce the Code of Conduct. . A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)
In A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here against an order that dismissed an HRTO claim involving an autistic child alleging age and disability discrimination.
Here the court cites the case of York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) as approval for the to-me obvious validity of the Charter being heard by tribunals, if pled and relevant:[24] The Supreme Court of Canada wrote recently about the need for administrative tribunals to address Charter issues that arise for adjudication in cases before them. In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (CanLII) the Court held:[89] The principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. Tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction (i.e., where the essential factual character of the matter falls within the tribunal’s specialized statutory jurisdiction). In exercising their statutory discretion, tribunals must comply with the Charter (Conway, at paras. 20-21 and 78-81).
[90] This is, in part, an access to justice issue. There are practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available (Conway, at para. 79). Charter rights can be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants do not need to have separate recourse to the courts for their Charter rights to be vindicated (Conway, at para. 103).
[91] Where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision. Administrative tribunals are empowered — and, for the effective administration of justice, called upon — to conduct an analysis consistent with the Charter where a claimant’s constitutional rights apply (Conway, at paras. 78-81; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 52). It was therefore incumbent on the arbitrator to proactively address the s. 8 issue that manifested itself on the facts of the grievance. It is insufficient to revert to a separate “well developed arbitral common law” privacy right framework, or to another framework, as the arbitrator did in this instance (A.F., at para. 13). As I have explained, the Charter and relevant s. 8 jurisprudence were legal constraints that applied to the arbitrator’s decision (Vavilov, at para. 101). In other words, the arbitrator was required to decide the grievance consistent with the requirements of s. 8. This would properly entail drawing on both the relevant body of arbitral decisions and the s. 8 jurisprudence.
[92] The arbitrator approached her task differently. She conducted an analysis by reference to management rights versus the privacy interests of employees. However, arbitrators cannot disregard the Charter’s requirements where it applies by applying another analytical framework, even by consent. [Emphasis added.] [25] Unfortunately, the presiding member who heard A.H.’s claim declined to decide the issue of whether s. 10 of the Code violates s. 15 of the Charter. In my view, this path to a decision was not open to her. Accordingly, the decision must be remitted to the tribunal to consider the issue on the facts and applicable law.
[26] With A.H. failing in the claim for discrimination based on disability, A.H.’s claim for discrimination based on age remained for consideration. The claim was pleaded. It was joined by the respondent. Evidence was adduced by all parties on the issue. The parties made legal argument on the issue. The issue of whether s. 10 of the Code violates the Charter was justiciable, ripe for consideration, and necessary to justly decide A.H.’s lawful claims.
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