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Municipal - Integrity Commissioner (2). 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 illustrates some Code of Conduct provisions (and implementations) of the Municipal Act, 2001:[7] Part V.1 of the Act is entitled “Accountability and Transparency.” Under that Part, s. 223.2(1) of the Act requires the City to establish “codes of conduct for members of the council of the municipality and of its local boards.” As part of the ethical framework of the City, the code of conduct represents the standard of conduct expected of all members of Council. The City’s code of conduct is contained in its Policy No. ADM 070, which was enacted in March 2012 and last modified in March 2019 (the “Code of Conduct”).
[8] Pursuant to s. 223.3(1) of the Act, the City is authorized to appoint an “Integrity Commissioner” who reports to Council and who is responsible for performing in an independent manner various functions assigned by the municipality, including, inter alia:a. The application of the code of conduct for members of council and the code of conduct for members of local boards.
b. The application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council and of local boards.
c. Requests from members of council and of local boards for advice respecting their obligations under the code of conduct applicable to the member.
d. Requests from members of council and of local boards for advice respecting their obligations under a procedure, rule or policy of the municipality or of the local board, as the case may be, governing the ethical behaviour of members. [9] The second-named respondent, Principles Integrity, was appointed to serve as the Integrity Commissioner for the City on November 15, 2022 (the “Commissioner”). Principles Integrity also serves as the Integrity Commissioner for a number of other Ontario municipalities.
[10] Section 223.1(1)(a) of the Act authorizes the Commissioner to receive and conduct an inquiry in respect of a request or complaint by a member of Council or a member of the public as to whether any member of Council has contravened the Code of Conduct.
[11] The City’s Code of Conduct authorizes the Commissioner to determine, on a case-by-case basis, whether to undertake an investigation of a complaint. Section 18.03 of the Code of Conduct permits the Commissioner to summarily dismiss a complaint if the Commissioner believes it constitutes an abuse of process or is frivolous or vexatious.
[12] Where the Commissioner decides to undertake a formal investigation, a copy of the complaint is given to the councillor in question and a copy of any response from the councillor is given to the complainant. The Commissioner may interview anyone whom the Commissioner deems relevant to the investigation and resolution of a complaint.
[13] Upon completing an investigation, the Commissioner issues a report to Council. The report may contain “findings” made by the Commissioner and the Commissioner’s opinion as to whether the councillor has contravened the Code of Conduct. The report may also contain the Commissioner’s recommendations as to sanction or remedy, which recommendations are not binding on Council.
[14] In this regard, s. 223.4(5) of the Municipal Act, 2001 provides that:The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. [15] The Commissioner has a statutory duty of confidentiality with respect to investigations. Subsection 223.5(1) of the Act requires that 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.” However, s. 223.6(2) permits the Commissioner to disclose in a report to Council about whether a member has contravened the Code of Conduct “such matters as in the Commissioner’s opinion are necessary for the purposes of the report.”
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[93] The Code of Conduct is a governance document. Counsel for the applicant is correct in saying that while s. 223.2(1) of the Act requires that each Ontario municipality must have a code of conduct, the Municipal Act, 2001 does not mandate the specific contents of a municipality’s code of conduct. In the instant case, the City’s Code of Conduct is contained in a policy of Council. It was enacted by Council in March 2012 and last modified in March 2019. That is, it was debated and approved by the City councillors themselves. The Code of Conduct reflects, if you will, a social compact amongst the members of Council. It reflects the standards of behaviour and ethical conduct that the councillors have set for themselves and that which they expect each of their colleague members to uphold. . 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"].
In these quotes the court considers the interaction (or rather 'non-interaction') of the presence of Charter rights to the nature and extent of administrative 'penalty', here in a municipal 'integrity commissioner' context:[6] For the reasons that follow, I would grant the motion for an extension of time, but dismiss the application on its merits. Mr. Jonker’s s. 2 Charter rights were relevant to the exercise of the Integrity’s Commissioner’s discretion, which was to make a finding on whether Mr. Jonker’s actions at the Freedom Convoy protest violated the Township’s code of conduct. The Township was bound by those findings. Any discussion of Mr. Jonker’s s. 2 Charter rights at the penalty phase would have amounted to an attempt to undermine the Integrity Commissioner’s conclusion that Mr. Jonker’s s.2 Charter rights did not excuse the misconduct at issue. In other words, Mr. Jonker’s s. 2 Charter rights were not relevant to the exercise of the Council’s discretion in dealing with penalty.
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[24] I accept Mr. Jonker’s submission that when making its decision on penalty (which was a discretionary decision), Council was required to consider all relevant Charter rights. Thus, the question becomes whether Mr. Jonker’s s. 2 Charter rights were relevant to Council’s decision on penalty.
[25] To answer this question, it is important to highlight the structure of the Act. As set out above, it is the Integrity Commissioner who is given the power to determine whether a member of Council has violated the Municipality’s code of conduct. As Mr. Jonker concedes, Council is bound by the Integrity Commissioner’s findings with respect to whether there has been misconduct. If the Integrity Commissioner has made no finding of misconduct, Council has no further role. If the Integrity Commissioner makes a finding of misconduct, Council may make a decision as to which penalty to impose. In doing so it may consider any recommendations as to penalty made by the Integrity Commissioner and may accept, reject or modify those recommendations. In Mr. Jonker’s case, Council accepted the Integrity Commissioner’s recommendations as to penalty.
[26] In his factum, Mr. Jonker submitted that Council’s decision on penalty must be set aside for two reasons:A. The Council did not attempt to apply the well-know Doré analysis and balance the limitation of Mr. Jonker’s Charter rights while considering whether to impose a penalty on Mr. Jonker; and
B. Even if Council did undertake such a balancing exercise, the Decision does not reflect a proportionate balance between Mr. Jonker’s Charter rights and the Code’s objectives. [27] According to Mr. Jonker, Council’s penalty decision “unquestionably limited Mr. Jonker’s Charter protection because it punished Mr. Jonker for his participation in a political protest.” There is no issue that the Charter rights at issue are Mr. Jonker’s s. 2 rights of freedom of expression, freedom of peaceful assembly and freedom of association.
[28] I agree that Council’s decision had the effect of punishing Mr. Jonker for his participation in a political protest. However, the reason that Council decided to punish Mr. Jonker for his participation in a political protest is that the Integrity Commissioner decided that Mr. Jonker’s participation in that protest constituted misconduct.
[29] The Integrity Commissioner made a distinction between what he called the “peaceful stage of the protest” (which was before the federal government invoked the Emergencies Act) and the stage where the “Demonstration was deemed to be unlawful” (after the government invoked the Emergencies Act). The Integrity Commissioner was clear that Mr. Jonker committed no misconduct during the peaceful stage, but that once the demonstration “was deemed unlawful” Mr, Jonker’s s. 2 Charter rights no longer protected his conduct.
[30] Mr. Jonker argued before us that the conclusion that the demonstration became “unlawful” after the Emergencies Act was invoked is unreasonable. Therefore, the conclusion that Mr. Jonker lost his s. 2 rights once that legislation was invoked is also unreasonable.
[31] There may or may not be merit to this submission. However, what is clear is that it is a submission that goes to the issue of whether Mr. Jonker’s participation in the protest constituted misconduct. To make the submission again before Council, as Mr. Jonker argues he should have been able to do, would be to question the Integrity Commissioner’s finding as to whether his actions constituted misconduct under the code.
[32] This brings me back to the structure of the Municipal Act, which is that Council is bound by the Integrity Commissioner’s findings as to misconduct. Therefore, in exercising its jurisdiction as to penalty it cannot do so in such a way that would seek to set aside the Integrity Commissioner’s findings on the question as to whether misconduct had occurred. Yet this is precisely what Mr. Jonker states the Council should have done. In effect, he is arguing that Council should have refused to punish him because his conduct was protected by s. 2 of the Charter. If this is true, his conduct cannot be considered misconduct.
[33] This is not to say that Council does not have a duty to consider Mr. Jonker’s Charter rights, if there are any rights that are relevant to its decision. However, in this case, Mr. Jonker’s s. 2 Charter rights were relevant to the Integrity Commissioner’s decision, not to Council’s decision on penalty, which is the only decision that is the subject of this application for judicial review.
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