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Charter - Administrative (6). 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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