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Municipal - Code of Conduct. Guerard v. The Corporation of the Municipality of Mississippi Mills
In Guerard v. The Corporation of the Municipality of Mississippi Mills (Div Ct, 2026) the Divisional Court dismissed a township councillor's JR, this brought against "both the [SS: Integrity] Commissioner’s findings and the penalty imposed by the Municipality", these under the municipality’s Code of Conduct regarding non-compliance with the municipality's COVID vaccination policy.
Here the court considered the penalty of a 90 day suspension:5.3.2 Was the penalty reasonable?
[66] I turn then to the applicant’s argument that the penalty recommended by the Commissioner and imposed by Council was unreasonable. At the outset, I note that decisions respecting penalty represent “an exercise of discretion that must be accorded a high degree of deference” in this court: Budarick v. Integrity Commissioner of Brudenell, Lyndoch and Raglan Townships, 2022 ONSC 640, at para. 40.
[67] The applicant submits that the penalty imposed in this case “went far beyond what was necessary.” She submits that the maximum penalty should be reserved for “the most egregious infractions, such as cases of sexual misconduct.” Further, she says that the Commissioner failed to provide satisfactory reasons for his recommendation of the maximum penalty given that it rested on his conclusion – as the applicant puts in her factum – that she “failed to cooperate with the investigation, which he took to be a sign of a lack of remorse.” In this respect, the applicant says that she did not fail to cooperate, she merely did not disclose her vaccination status. She notes that the Commissioner could have issued a summons to have her submit to an interview, but he never did. In any case, so the applicant argues, it is unreasonable to conclude that a failure to cooperate and a lack of remorse could justify the maximum penalty, especially when the refusal to answer the Commissioner’s question was expressive conduct.
[68] The Commissioner’s reasoning for recommending the maximum penalty was as follows:The Integrity Commissioner recommends that Council suspend the Member’s remuneration for a period of 90 days. The Councillor has shown no respect for the policy and direction of Council and has failed to cooperate with the Integrity Commissioner in this investigation. While the Member’s actions during the investigation were conducted through counsel, the reasons for refusing to cooperate were found to have no basis in law and therefore do not justify the Member’s refusal to answer the question as to her vaccination status.
In the absence of remorse or any indication that the Member acknowledges her actions were improper, the Integrity Commissioner is left with no alternative but to recommend the maximum penalty available in the circumstances. [69] Contrary to the submission of the applicant, the Commissioner did not rest his conclusion solely on a lack of cooperation. It rested on his dual findings that she had failed to show any respect for the policy and the direction of Council (because “her actions were improper”) and that she had failed to co-operate.
[70] In addition, the Commissioner did not find that the failure to co-operate was “a sign of a lack of remorse”, he simply found that there was no evidence of remorse. Nor was there any indication that the applicant recognised that she had engaged in improper conduct. It bears remembering that the Commissioner’s report was provided to Council in advance of the meeting at which it was to be discussed and where the applicant had a right to be heard. Therefore, it was at that time still possible that the applicant could attend the August 9, 2022, meeting, acknowledge her misconduct and apologize, and thereby express remorse. If she had, that might properly have moved Council to consider her expression of remorse as a mitigating factor that had the effect of necessitating a more lenient penalty than the one proposed by the Commissioner.
[71] Instead, the applicant filed written submissions on August 9, 2022 that alleged a reasonable apprehension of bias against the Commissioner, urged that she had conducted herself in a way that showed “good will” and “ensured the safety of everyone,” and argued that she did not deserve the maximum penalty because her misconduct was “not in the same universe” as sexual misconduct.[6]
[72] The applicant’s written submissions show that she and her then counsel certainly understood that her misconduct was about much more than a failure to cooperate with the Commissioner. Instead, her misconduct included her failure to be vaccinated in the context of a worldwide health emergency and her attendance at two Council meetings where she was not vaccinated and thereby put in danger the health of her fellow councillors, staff of the Municipality, and members of the public. She recognized as much when, through her counsel, she submitted to Council that her penalty should be no more than a reprimand because she had “removed herself from contact with members of council, staff and the public during [council] meetings.” This was said to have “showed good will on her behalf and ensured the safety of everyone.”
[73] Notably, the applicant repeats almost none of these submissions on this review. In any case, her argument that she took steps that “ensured the safety of everyone” is difficult to credit when she attended Council meetings in person, apparently unvaccinated, and left only when asked to do so.
[74] I accept the applicant’s submission that she was entitled to make legal arguments in the context of the investigation into her conduct, even if (as the Commissioner concluded) those arguments were legally and/or factually baseless. However, as I have already said, the Commissioner’s reference to a lack of remorse or insight on the part of the applicant was merely a reference to the absence of evidence of a mitigating factor respecting penalty. The basis for his conclusion that the maximum penalty was appropriate was that the applicant’s non-compliance with the policy showed that she had no respect for it or for Council, and that her failure to answer his question respecting her vaccination status – her failure to cooperate – undermined the efficacy of the policy. In my view, these conclusions were supportable on the evidence and betray no improper reasoning.
[75] Last, I reject the applicant’s submission that the maximum penalty was inappropriate on its face in this case. A 90-day suspension is not reserved for cases of sexual misconduct and has been imposed in a variety of circumstances. To cite just one example, this court recently upheld a 90-day suspension in a case involving objectionable public statements: Robinson v. Pickering, 2026 ONSC 451. Here, where (by her own acknowledgement) the applicant engaged in conduct which might have been dangerous to the health of others, where the applicant was reasonably found to have no respect for either the policy or Council and to have failed to cooperate with the investigation, and where there was no evidence of mitigating circumstances, it cannot be said that the penalty recommended by the Commissioner and adopted by Council was unreasonable. . Guerard v. The Corporation of the Municipality of Mississippi Mills
In Guerard v. The Corporation of the Municipality of Mississippi Mills (Div Ct, 2026) the Divisional Court dismissed a township councillor's JR, this brought against "both the [SS: Integrity] Commissioner’s findings and the penalty imposed by the Municipality", these under the municipality’s Code of Conduct regarding non-compliance with the municipality's COVID vaccination policy.
Here the court illustrates a common COVID vaccination v Charter rights balancing:[56] Set against the applicant’s rights were the objectives of the Code of Conduct and the vaccination policy. The Commissioner quoted extensively from the Code of Conduct and referred to the importance of both compliance with that code and the Municipality’s ability to apply the vaccination policy. There is no gainsaying the importance to the public of elected officials complying with high standards of conduct,[5] and it is still a fresh memory that vaccination mandates – including the vaccination policy adopted in this case – were adopted amid a global health emergency that resulted in the deaths of millions. The policy’s opening paragraphs reflect the importance of those measures during that emergency (emphasis added):The Municipality of Mississippi Mills is committed to workplace safety and to protecting our Councillors, employees, volunteers, contractors, students, and our clients from the hazards of COVID-19. This policy is a temporary measure to reduce the risks of the hazards of COVID-19 and may be amended as new public health directives and/or provincial or federal government legislation, regulations and/or orders are formalized. Any such directives, legislation, regulations, or orders shall take precedence until such time as this policy is amended, from time to time.
The Municipality requires all Councillors, employees, volunteers, contractors and students completing placements to be fully vaccinated against the hazard of COVID-19 to support the health and safety of our workplaces and our community.
[…]
The purpose of this policy is to mandate that all employees, volunteers, contractors and students completing placements must be fully vaccinated. The Municipality believes that vaccines create a safe working environment by reducing the likelihood of introducing the virus, and, if infected, creating illness from the transmission of the virus. [57] I note that the policy’s expression of confidence in the efficacy of vaccines against the COVID-19 virus is supported by the fact that judges may take judicial notice of that efficacy: J.N. v. C.G., 2023 ONCA 77, at para. 20.
[58] In my view, bearing in mind the Commissioner’s references to the relevant Charter values, his effort to impair the applicant’s rights as minimally as possible, and his references to the importance of respect for the Code of Conduct and the necessity of being able to apply the vaccination policy, the Commissioner engaged in the exercise of proportionate balancing of the relevant Charter values against the objectives of the Code of Conduct and the vaccination policy. That exercise was reasonable. I would therefore dismiss this ground of review. . 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. . Jubenville v. Chatham-Kent (Municipality)
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.
Here the court dismisses part of the application dealing with s.15 ['Discreditable Conduct'] of the Municipal Code of Conduct:[36] The Integrity Commissioner found a breach of s. 15. The heading for that section is “Discreditable Conduct”. Its purpose is clear. Members of Council must treat everyone (be they members of the public, members of council, or staff) in a civilized way. They must not bully, intimidate, or otherwise abuse anyone. Finally, the s. 15 of the Code notes that the Human Rights Code, R.S.O. 1990, c. H.19 applies in addition to other federal and provincial laws.
[37] The Integrity Commissioner identified numerous communications and social media posts made by the Applicant that she determined contravened this section as they were abusive, bullying, and intimidating.
[38] The Integrity Commissioner balanced her right to maintain secrecy with the fact that her Report would be public. She did so in a reasonable way. It was reasonable to withhold the identity of the complainants. The issue before her was the content of the posts and not who complained about them. The withholding of the complaints’ identities does not equate to a lack of evidence to support her findings: see Robinson, at paras. 97-98.
[39] In the context of the emotionally-charged environment that arose before and after the motion that the Applicant brought to Council, the Integrity Commissioner’s decision that the Applicant breached s. 15 of the Code was a reasonable one. It was a decision that, based upon the evidence before her, fell within the reasonable array of outcomes available to the Integrity Commissioner. . Jubenville v. Chatham-Kent (Municipality)
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" ['Improper use of influence'] and a Council decision to suspend the applicant’s salary for 90 days:[4] I conclude for the following reasons that the Integrity Commissioner’s finding of a breach of s. 10 of the Code of Conduct was unreasonable. The Integrity Commissioner had found a breach of two sections of the Code of Conduct. As one of those findings was unreasonable, the Report is quashed and remitted back to the Integrity Commissioner to reconsider her recommendation as to penalty.
[5] As the Council Decision was based upon the Report, it is quashed. Council shall reconsider this matter when it receives an amended Report.
....
[9] In the Report, the Integrity Commissioner found that the Applicant had breached two sections of the Code of Conduct: s. 10 of the Code, by using the influence of her office for a purpose other than the exercise of her official duties; and s. 15 of the Code, by failing to treat members of the public, other councillors, and staff in a civilized manner without abuse, bullying, and intimidation. The Integrity Commissioner recommended a 90-day suspension.
....
IV. THE OFFICE OF THE INTEGRITY COMMISSIONER AND CODE OF CONDUCT
[13] The existence of a code of conduct for a municipality and the position of Integrity Commissioner is mandated by s. 223.2 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”). The Act requires every municipality in Ontario to establish a code of conduct for its members of Council. Section 223.3 of the Act authorizes the municipality to appoint an Integrity Commissioner who is responsible for “performing in an independent manner the functions assigned by the municipality”, including investigating complaints of alleged breaches of the code of conduct and reporting the results of those investigations to municipal councils.
[14] Council adopted its Code of Conduct for Members of Council (“Code”) on August 12, 2019. The Code identifies principles of general application that guide the interpretation of more specific rules and obligations. Those general principles include in s. 5 of the Code the statement that members shall uphold a “high standard of ethical behaviour” and “shall refrain from engaging in conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”.
[15] The two sections of the Code for which the Applicant was found to be in breach are as follows:10. Improper use of influence:
No member of Council shall use the influence of his or her office for any purpose other than the exercise of her or his official duties.
Examples of prohibited conduct are the use of a member's position as a member of Council or local board or committee to improperly influence the decision of another person to the private advantage of the member, or the member’s parents, children or spouse, friends or associates, business or otherwise. This would include attempts to secure preferential treatment beyond activities in which members normally engage on behalf of their constituents as part of their official duties. Also prohibited is the holding out of the prospect or promise of future advantage through a member supposed influence within Council in return for present actions or inaction.
For the purposes of this provision, “private advantage” does not include a matter that is of general or broad application or that concerns the remuneration or benefits of a member.
15. Discreditable Conduct:
All members of Council have a duty to treat members of the public, one another, and staff in a civilized way and without abuse, bullying or intimidation, and to ensure that their work environment is free from discrimination and harassment. The Ontario Human Rights Code applies, in addition to other federal and provincial laws. [16] To assist the Integrity Commissioner in her investigation, she is given significant power to access information and documents: s. 223.4(2) of the Act.
[17] These investigatory powers are coupled with a strict duty of confidentiality. Section 223.5(1) provides as follows:The Commissioner and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part. [18] Somewhat offsetting this duty of confidentiality is s. 223.6(2) of the Act, which grants to the Integrity Commissioner the discretion to disclose in her report to Council “such matters as in the Commissioner’s opinion are necessary for the purposes of the report”.
[19] As s. 223.6(3) of the Act mandates that the municipality make public the Integrity Commissioner’s report, the Code recognizes that the Integrity Commissioner has the discretion to withhold names and identifying information of complaints where it is in the interest of a just and fair result to do so: see s. 19(c)(v) of the Code.
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