Court File and Parties

CITATION: Chiarelli v. Ottawa (City of), 2021 ONSC 8256

DIVISIONAL COURT FILE NO.: CVD-OTT-64-20JR

DATE: 20211222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Morawetz C.J.O.S.C.J., D.L. Corbett and Ryan Bell JJ.

B E T W E E N:

RICHARD CHIARELLI

Applicant

• and -

CITY OF OTTAWA and INTEGRITY COMMISSIONER FOR THE CITY OF OTTAWA

Respondents

Counsel:

D. Bruce Sevigny, for the Applicant

Ronald F. Caza and Marie-Pier Dupont, for the City of Ottawa

Julia Wilkes and Alex Fidler-Wener, for Integrity Commissioner of the City of Ottawa

Heard by ZOOM at Ottawa: May 25, 2021

REASONS FOR DECISION

The court:

[1] In the period September to November 2019, six complaints were filed against Ottawa City Councillor Richard Chiarelli with the Integrity Commissioner for the City of Ottawa (the “Commissioner”). The Commissioner investigated and then prepared one report in respect to three of the complaints, which were similar (the “Report”). The Commissioner filed the Report with Ottawa City Council on July 9, 2020. City Council considered the Report on July 15, 2020, accepted its conclusions that Councillor Chiarelli had engaged in acts of misconduct in respect to the three complaints, and imposed the maximum available penalty: suspending Councillor Chiarelli’s salary for 270 days in the aggregate. City Council also adopted a resolution calling upon Councillor Chiarelli to resign from City Council.

[2] Councillor Chiarelli applies to this court for judicial review of the proceedings below. He argues that the Commissioner lacked jurisdiction to investigate the complaints, showed bias against him, and denied the Councillor procedural fairness. He argues that City Council exhibited bias against him. He seeks various remedies, including orders quashing the findings and sanctions against him and orders prohibiting the respondents from taking further steps against him respecting the complaints.

Overview and Disposition

[3] The complaints fall squarely within the jurisdiction of the Commissioner and the Commissioner’s decision to this effect was reasonable.

[4] Councillor Chiarelli had serious health issues and it was reasonable for him to seek accommodation in the investigation process. However, the process followed by the Commissioner was fair and reasonably accommodated Councillor Chiarelli’s health issues.

[5] There is nothing to ground allegations of bias or reasonable apprehension of bias against the Commissioner, who discharged his job with patience and professionalism.

[6] On the information before the Commissioner, Councillor Chiarelli engaged in a series of acts that are serious and disgraceful departures from the standards of conduct expected of a City Councillor: overt sexist harassment that demeaned three women seeking employment in his office.

[7] Only one issue in this case gives us pause and this concerns the conduct of some members of Council while these matters were under investigation by the Commissioner. In the overall circumstances of this case, does this conduct give rise to a reasonable apprehension that City Council, or some members of Council, had predetermined the issue by the time Council came to make its decision?

[8] We find that the standard of conduct expected of City Councillors is not the same as that expected of a judge or tribunal member. When faced with reports of shocking and unacceptable behaviour by another Council member, members of Council can be expected to react. They can be expected to ask questions. They can be expected to speak for their constituents and for the City they lead.

[9] On the other hand, when City Council is called on to adjudicate, it should bring itself back to the decision at hand with an open mind on the basis of the record and the applicable principles.

[10] The role of an elected representative and civic leader and the role of an adjudicator are not incompatible. In assigning an adjudicative role to City Council, the Legislature must be taken to have done so knowing that members of Council are not independent and neutral in the way that judges are. But, having been assigned this adjudicative role by the Legislature, members of Council are required to keep an open mind and to be seen to keep an open mind.

[11] We find that the answer lies in the process required of City Council when it embarks on an adjudicative function. Where a matter has engendered significant public interest and has led some City Councillors to conduct themselves in a manner that suggests predetermination of the issue before them, and where an allegation of bias has been made against City Council and some of its members, members of Council should remind themselves formally and publicly of the nature of the task before them and their responsibility to act with an open mind as adjudicators. In this case, certain members of Council did not do this.

[12] In our view, the combined effect of the conduct of some members of City Council and the absence of a formal and public commitment by members of City Council to set aside their preconceptions to decide the matter before them with an open mind, in the overall charged context in which this all took place, must lead to a finding of a reasonable apprehension of bias on the part of City Council. For this reason, Council’s sanctions decision must be quashed.

[13] Remedy is difficult, given these findings. The remedy proposed by Councillor Chiarelli is not appropriate. These are serious complaints. The record supporting them is overwhelming. The complainants and the public deserve to have these matters decided on the merits.

[14] Sending the case back for a fresh decision by City Council would be the usual remedy in this court – but it would also be coupled with a direction that the fresh decision be made by a fresh decisionmaker – an option that is not available in this case. It is a rare case in which this court will make the decision that has been assigned to an administrative adjudicator by the Legislature. This is one of those rare cases – where the decision still must be made, and the decisionmaker chosen by the Legislature is unavailable because of a finding of bias by this court.

[15] Considering the issue of sanction afresh, we find that three factors are decisive. First, the conduct itself is very serious, it is repeated, and it reflects a pattern of extraordinary sexist conduct that is intolerable. For an elected City Councillor to engage in it is unacceptable and shocking and brings disgrace to the City he serves. Second, the Commissioner recommended the maximum penalty for each of the three findings of misconduct. The Commissioner is not the decisionmaker. But we place weight upon his recommendation, coming as it does from the person charged with guiding the government of the City of Ottawa on ethical issues. Third, Councillor Chiarelli has not taken responsibility for his conduct, apologized to the complainants, or shown any remorse for his disgraceful conduct.

[16] Therefore, for the reasons that follow, the application is dismissed against the Commissioner, the application is allowed against the City of Ottawa and the sanctions decision of City Council is quashed, and in its place we suspend Councillor Chiarelli’s salary for 270 days in the aggregate. .

Jurisdiction and Standard of Review

[17] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act.[^1]

[18] Decisions of the Commissioner and decisions of City Council are reviewed in this court on a standard of reasonableness.[^2] The parties agree that this standard applies to the Commissioner’s decisions respecting his jurisdiction to investigate complaints.[^3] Issues of procedural fairness are reviewed in this court on a correctness standard through the lens of the factors set out in Baker.[^4]

[19] We address below, separately, the test for allegations of bias and reasonable apprehension of bias against the Commissioner and against City Council.

Background

(a) The Commissioner and the City’s Code of Conduct

[20] The Commissioner is a statutory office created under Part V.1 of the Municipal Act, 2001.[^5] Municipal councils are required to establish codes of conduct for council members (s. 223.2) and are authorized to appoint integrity commissioners responsible for investigating and reporting to council on complaints that a council member has breached the Code of Conduct (s. 223.3).

[21] Ottawa City Council established a Code of Conduct pursuant to the Municipal Act, 2001, s. 223.2, which governs the conduct of members of Ottawa City Council. The Code of Conduct includes the following provisions:

GENERAL INTEGRITY

4. (1) Members of Council are committed to performing their functions with integrity, accountability and transparency.

(4) Members of Council shall at all times serve and be seen to serve the interests of their constituents and the City in a conscientious and diligent manner and shall approach decision making with an open mind.

DISCRIMINATION AND HARASSMENT

7. All members of Council have a duty to treat members of the public, one another and staff with respect 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 and, where applicable, the City’s Violence and Harassment in the Workplace Policy.

[22] A “Complaint Protocol” is attached as Schedule “A” to the Code of Conduct, which sets out the process followed by the Commissioner. Once a complaint is received, the Commissioner performs an intake or triage function to determine if the complaint raises an issue under the Code of Conduct, whether it appears to be bona fide and made in good faith, whether it is within the Commissioner’s jurisdiction, whether it is appropriately addressed under the complaints process rather than some other process, and whether there are other processes underway that should lead the Commissioner to decline to investigate the complaint or to suspend the complaint investigation pending completion of those other processes.

[23] If, after intake, the Commissioner decides to investigate the complaint, he is then to give notice of it to the person who is the subject of the complaint and to give that person ten days to provide a response to the complaint. After receiving any response provided, the Commissioner is then to investigate the complaint and to report his findings to City Council.

[24] The Complaint Protocol contemplates a timely process for investigating complaints and reporting on them to Council. The Commissioner is required to report to the complainant and the Council member “generally no later than 90 days” after the intake process has been completed and an investigation has been commenced. If the investigation process takes more than 90 days, the Commissioner is required to provide an interim report and to advise the parties of the date the report will be available: Complaint Protocol, s. 11.1. In this case, as described below, the Commissioner delivered two interim reports before delivering the Report.

[25] Where the complaint against the member of Council is sustained, in whole or in part, the Commissioner shall report to Council outlining the findings, the terms of any settlement and/or any recommended corrective action: Complaint Protocol, s. 11.2. Both the complainant and the member of Council are provided with a copy of the report and the member has the right of reply when the report is considered by City Council: Complaint Protocol, s. 11.3.

[26] City Council’s duty is to “consider and respond” to the Commissioner’s report. Where the Commissioner finds there has been a violation of the Code of Conduct, s. 223.4(5) of the Municipal Act, 2001, authorizes Council to impose a. a reprimand; and b. suspension of the remuneration paid to the member of Council in respect of his or her services as a member of Council for a period of up to 90 days.

(b) Councillor Chiarelli

[27] The applicant, Richard Chiarelli, is a long-serving member of Ottawa City Council. He was first elected to Council upon the amalgamation of local governments into the City of Ottawa in 2001, and prior to that he had served three terms as a Councillor on the Nepean City Council, including serving as the Acting Mayor of the City of Nepean for about six months

(c) Complaints Made Against Councillor Chiarelli

[28] The Commissioner received six complaints about Councillor Chiarelli. Five allege similar misconduct and the sixth relates to an unrelated traffic safety matter. Of the five related complaints, three are from persons who were interviewing for potential employment and two were from current City employees. The three interviewee complaints are the subject of the Report. The two employee complaints are addressed in a separate report (the “Second Report”). The unrelated sixth complaint had not been investigated when factums were filed for this application.

[29] This application is brought solely in respect to the Report. It is not brought in respect to the Second Report. It is not brought in respect to the sixth unrelated complaint. In Councillor Chiarelli’s Notice of Application and his factum, he challenged the conduct of the Commissioner in respect to all six complaints. In Confirmation Forms filed prior to the first scheduled hearing date[^6] for this application, Councillor Chiarelli confirmed that this application concerns only the Report and not the Second Report or the uninvestigated unrelated complaint. Counsel for Mr. Chiarelli confirmed this point again at the start of oral argument.

(d) The Three Interviewee Complaints

[30] Between September 6 and October 8, 2019, the Commissioner received three similar complaints from three different interviewees, alleging that Councillor Chiarelli violated ss. 4 and 7 of the Code of Conduct during their job interviews:

Complaint 1: During a job interview, Councillor Chiarelli asked the complainant what she would be willing to wear on the job, including whether she would go “bra-less” and if she was comfortable showing her arms and legs. The Councillor showed her inappropriate photographs on his phone of former staff and explained how attractive women are important to gather information and attract volunteers by getting men to hit on them.

Complaint 2: During a job interview, the Councillor discussed recruiting volunteers (specifically young men) at nightclubs, indicating that recruitment works best if the individual is not wearing a bra, and asked if the complainant would be willing to go to nightclubs not wearing a bra to recruit young men.

Complaint 3: During a job interview, Councillor Chiarelli made inappropriate comments about the complainant’s body and asked her inappropriate questions including whether she would consider stripping (because of her dance experience) and whether she had participated in “World Orgasm Day”.

[31] The Commissioner reviewed and concluded in respect to each complaint that:

a. the complaint was not frivolous or vexatious;

b. there were sufficient grounds to warrant investigating; and

c. the complaint was within his jurisdiction.

[32] The Commissioner provided Notices of Inquiry and copies of the complaints to Councillor Chiarelli and requested the Councillor’s written response to each within ten days, all in accordance with the Complaint Protocol.

[33] By letter from counsel dated September 24, 2019, Councillor Chiarelli objected to the Commissioner’s jurisdiction. The Commissioner considered and rejected the Councillor’s objection by letter dated October 3, 2019.

(e) Councillor Chiarelli Did Not Participate in the Commissioner’s Investigation

[34] Councillor Chiarelli underwent heart surgery on December 13, 2019, and experienced substantial health challenges thereafter.

[35] From December 13, 2019 to May 14, 2020, the Commissioner extended deadlines for Councillor Chiarelli to respond to the complaints, asked Councillor Chiarelli to confirm that he would participate in an interview in connection with the complaints once he was well enough to do so, and sought information as to when Councillor Chiarelli’s health would permit him to participate in the investigation.

[36] Councillor Chiarelli was represented throughout by counsel. Councillor Chiarelli declined to participate in an interview, did not state whether he would participate in an interview when his health permitted, and did not respond to the Commissioner’s request that he confirm that he would participate in the investigation when his health permitted him to do so.

[37] On June 25, 2020, the Commissioner provided a draft report to Councillor Chiarelli and invited comments from him. Councillor Chiarelli provided no comments.

[38] For a period of roughly nine months, the Commissioner sought responses and participation from Councillor Chiarelli. Aside from a bald denial issued as a public statement on October 3, 2019, the Councillor provided no substantive response and would not confirm that he would ever provide a response.

(f) The Commissioner’s Final Report

[39] In the Report, the Commissioner provided the chronology of the complaints and the investigation, as well as the communications between the Commissioner and Councillor Chiarelli’s counsel. The Commissioner set out his conclusion, based on the correspondence, that Councillor Chiarelli had no intention of participating in the investigation. The Commissioner also set out his decision to use Councillor Chiarelli’s public denial as his evidence in the investigation.

[40] The Commissioner found the complainants’ evidence to be credible and concluded that the public denial published by Councillor Chiarelli was “simply not credible.”

[41] The Commissioner concluded, on a balance of probabilities, that the conduct of Councillor Chiarelli in interviewing and seeking to recruit the three complainants for employment did not serve the interest of his constituents. Nor, in interviewing and seeking to recruit the three complainants, was Councillor Chiarelli acting in a conscientious and diligent manner. The Commissioner found that in the interviews of complainants 1 and 2, Councillor Chiarelli told them that he was planning to objectify the complainants by using their sexuality to recruit male volunteers to assist in his re-election efforts. Finding that

[n]one of this serves the public good. None of this meets the definition of the word ‘integrity[,]’

the Commissioner found that the allegations were made out and that Councillor Chiarelli had breached ss. 4.1 and 4.4 of the Code of Conduct in respect of each of the three complainants. The Commissioner also found that Councillor Chiarelli had breached s. 7 of the Code of Conduct. The Commissioner found, on a balance of probabilities, that Councillor Chiarelli made comments to and asked questions of the complainants that were sexual in nature or focused on women’s bodies.

[42] The Report then sets out the Commissioner’s recommendations with respect to sanctions and other corrective actions. The Commissioner considered the following principles with respect to sanctions for violation of the Code of Conduct:

a. sanctions are normally progressive in their severity;

b. sanctions depend on the experience of the Councillor;

c. how flagrant was the behaviour; and

d. whether there is any acknowledgement of wrongdoing, remorse or regret.

The Commissioner concluded that “because the Councillor is the longest serving elected public office holder on Council and that this offensive and disreputable behaviour has been going on for a very long time”, the most severe of sanctions was warranted.

[43] The Commissioner therefore recommended that City Council receive the Report, including the finding that Councillor Chiarelli had contravened ss. 4 and 7 of the Code of Conduct, and consecutively impose a suspension of Councillor Chiarelli’s remuneration for 90 days in respect of each of the complaints.

(g) Decision of City Council

[44] The Report was placed on the agenda for the meeting of City Council on July 15, 2020. The Commissioner attended that meeting and responded to questions posed to him by Councillors about the Report and his recommendations.

[45] The Report noted that, pursuant to s. 5(2.1) of the Municipal Conflict of Interest Act,[^7] Councillor Chiarelli would have the opportunity to respond to the Report by participating in the debate when City Council considered the Commissioner’s recommendations. Councillor Chiarelli was present but did not address City Council on July 15, 2020.

[46] The motion to receive the Report and to impose consecutive 90-day suspensions of the remuneration paid to Councillor Chiarelli in respect of his service as a member of Council for each of the three complaints, for a total of 270 days, was passed by Council unanimously. Council voted that the suspension of remuneration would commence on August 14, 2020.

Analysis

[47] Our analysis is organized in six parts:

I. Claims Against the Commissioner (paras. 48 to 121);

II. Claims Against City Council (paras. 122 to 152);

III. Remedy (paras. 153 to 157);

IV. Appropriate Sanction (paras. 158 to 168);

V. Costs (para. 169); and

VI. Order (paras. 170 to 172).

I. Claims Against the Commissioner

[48] In his Notice of Application, Councillor Chiarelli raises the following issues as against the Commissioner:

A Declaration that the Integrity Commissioner has demonstrated a predisposition and/or predetermination reflecting a reasonable apprehension of bias, and/or a "closed mind", that gives rise to a breach of natural justice, in relation to one or more of the… complaints;

An Order quashing the decision of the Integrity Commissioner dated February 12, 2020, which improperly concluded that Ottawa City Council and/or specific members of Ottawa City Council had not demonstrated bias against the Applicant;

A Declaration that the… Complaints fall outside the investigative jurisdiction of the Integrity Commissioner, as they involve human rights and/or workplace harassment issues that are covered by other legislation or fall under another policy;

An Order quashing the decision of the Integrity Commissioner dated October 3, 2019, which improperly concluded that the… Complaints fall under the investigative jurisdiction of the Integrity Commissioner; and

A Declaration that the Applicant has been denied natural justice and procedural fairness in the manner in which the… Complaints have been investigated.[^8]

[49] These allegations may be summarized into the following issues:

a. Should this court quash the Commissioner’s decision dated October 3, 2019 that he had jurisdiction to investigate the complaints?

b. Should this court quash the Commissioner’s decision dated February 12, 2020 failing to find that Ottawa City Council or certain members of Council are biased against Councillor Chiarelli?

c. Was the Commissioner biased or did he act in a manner giving rise to a reasonable apprehension of bias in connection with his investigation and the Report?

d. Was Councillor Chiarelli denied natural justice and procedural fairness in the manner in which the complaints were investigated?

[50] We note that Councillor Chiarelli has not argued that the findings and conclusions of the Commissioner are unreasonable.

Issue #1 – Jurisdiction of the Commissioner to Investigate the Complaints

[51] Councillor Chiarelli argues that the complaints are in the exclusive jurisdiction of the Human Rights Tribunal of Ontario and also fall under the City of Ottawa’s Violence and Harassment in the Workplace Policy (the “Workplace Policy”), and, for these reasons, that the Commissioner lacked jurisdiction to investigate the complaints.

[52] These issues were raised with the Commissioner by letter from Councillor Chiarelli’s counsel dated September 24, 2019:

The Commissioner is required to determine under s. 5 of the Complaint Protocol whether complaints are “covered by other legislation or fall under another policy”.

It is obvious that the complaints are covered by the Ontario Human Rights Code and the Workplace Policy.

As a consequence, the Commissioner lacks jurisdiction over the complaints.

The letter concludes by arguing that “an important procedural step was either skipped or overlooked and not appropriately considered or undertaken” being this analysis of the Commissioner’s jurisdiction.

[53] The Commissioner considered Councillor Chiarelli’s jurisdictional objection. He noted that s. 5(e) of the Complaint Protocol applies where proceedings have been taken under another complaint regime. No proceedings had been initiated or pursued before the Ontario Human Rights Tribunal, and therefore s. 5(e) did not arise. In respect to the Workplace Policy, that Policy itself, on its face, requires that any complaint against a City Councillor made under that Policy be forwarded to the Commissioner, an express statement in the Workplace Policy conferring jurisdiction on the Commissioner.

[54] Councillor Chiarelli argues before us that the Commissioner’s decision fails to address his jurisdictional objection that where a complaint raises an issue that may be addressed before the Ontario Human Rights Tribunal, the Commissioner lacks jurisdiction.

[55] The Commissioner has jurisdiction to investigate a claim that a City Councillor has violated the Code of Conduct.[^9] Subsection 1(2) of the Code of Conduct provides that various legislation governs the conduct of members of Council, including the Ontario Human Rights Code and by-laws and policies of Council (ss. 1(2)(g) and (i)). Applicable portions of s. 4 of the Code of Conduct provide as follows:

(1) Members of Council are committed to performing their functions with integrity, accountability and transparency.

(2) Members of Council are responsible for complying with all applicable legislation, by-laws and policies pertaining to their position as an elected official.

(4) Members of Council shall at all times serve and be seen to serve the interests of their constituents and the City in a conscientious and diligent manner and shall approach decision-making with an open mind.

Section 7 of the Code of Conduct – set out at para. 22 above – prohibits discrimination and harassment expressly. Paragraph 15(1) of the Code of Conduct provides that “Members of Council are expected to adhere to the provisions of the Code of Conduct” and then addresses sanctions that Council may impose where it receives a report from the Commissioner that, in his or her opinion, a member of Council has violated the Code of Conduct.

[56] On its face, the Code of Conduct requires members of Council to comply the Human Rights Code and the Workplace Policy and authorizes the Commissioner to investigate and report to Council allegations that a member of Council has breached these requirements.

[57] The Complaint Protocol, which is Appendix “A” to the Code of Conduct, requires the Commissioner to undertake an “initial classification” of a complaint, pursuant to s. 4:

The complaint shall be filed with the City Clerk and Solicitor who shall forward the matter to the Integrity Commissioner for initial classification to determine if the matter is, on its face, a complaint with respect to non-compliance with the Code of Conduct and not covered by other legislation or other Council policies as described in Section 5.

In addition, the Commissioner may decline to investigate or may terminate an investigation, pursuant to s. 7 of the Complaint Protocol:

If the Integrity Commissioner is of the opinion that the referral of a matter to him or her is frivolous, vexatious or not made in good faith, or that there are no grounds or insufficient grounds for an investigation, the Integrity Commissioner shall not investigate and, where this becomes apparent in the course of an investigation, shall terminate the investigation.

[58] It is these provisions that Councillor Chiarelli argues were not followed by the Commissioner at the outset. The Commissioner determined that the complaints were “with respect to non-compliance with the Code of Conduct” but, it is argued, the Commissioner did not determine whether the complaints were “covered by other legislation or other Council policies”. In denying this objection, the Commissioner found as follows:

a. the complaints are, on their face, with respect to non-compliance with the Code of Conduct.

b. Section 5 of the Complaint Protocol does not deprive the Integrity Commissioner of jurisdiction to investigate and report upon the complaints.

[59] Councillor Chiarelli does not challenge the first aspect of the Commissioner’s jurisdiction. The complaints fall squarely within ss. 4.1, 4.4 and 7 of the Code of Conduct. Rather, Councillor Chiarelli argues that the second aspect of the Commissioner’s jurisdictional decision is unreasonable on the basis of s. 5 of the Complaint Protocol, material portions of which state as follows:

If the complaint… is not, on its face, a complaint with respect to non-compliance with the Code of Conduct or the complaint is covered by other legislation or complaint procedure under another Council policy, the Integrity Commissioner shall advise the complainant in writing as follows:

OTHER POLICY APPLIES

(c) If the complaint seems to fall under another policy, the complainant shall be advised to pursue the matter under such policy.

LACK OF JURISDICTION

(d) If the complaint is, for any reason, not within the jurisdiction of the Integrity Commissioner, the complainant shall be so advised and provided with any additional reasons and referrals as the Integrity Commissioner considers appropriate.

MATTER ALREADY PENDING

(e) If the complaint is in relation to a matter which is subject to an outstanding complaint under another process such as a court proceeding related to the Municipal Conflict of Interest Act, a Human Rights complaint or similar process, the Integrity Commissioner may, in his/her sole discretion and in accordance with legislation, suspend any investigation pending the result of the other process.

[60] “Another policy” in s. 5(c) of the Complaint Protocol means another policy of the City of Ottawa. Councillor Chiarelli argues that the Workplace Policy, which prohibits harassment in the workplace, applies to the complaints and thus that the complaints should have been pursued under that policy rather than by way of a complaint to the Commissioner.

[61] The subject-matter of the complaints is sexual harassment. Those allegations could give rise to complaints to the Ontario Human Rights Tribunal under the Ontario Human Rights Code. Councillor Chiarelli argues that these complaints should have been pursued before the Tribunal and the Commissioner had no jurisdiction to deal with them.

[62] In oral argument, counsel did not pursue before us the first argument respecting the Workplace Policy. This is understandable. The Workplace Policy, by its own terms, provides that complaints under that Policy made against a City Councillor are to be referred to the Commissioner by the City Solicitor. Second, s. 5(c) of the Complaint Protocol does not provide that the Commissioner lacks jurisdiction to investigate a complaint properly arising against a Councillor because it may also give rise to another process for redress. As is clear from the language of s. 5(e), complaints may be pursued under both the Code of Conduct and “under another process”. Where this happens, the Commissioner may “in his/her sole discretion… suspend any investigation pending the result of the other process.”

[63] Subsection 5(e) of the Complaint Protocol is also a complete answer to Councillor Chiarelli’s argument that the Commissioner had no jurisdiction over the complaints because they could have been the subject-matter of complaints under the Human Rights Code. Subsection 5(e) contemplates that the Commissioner could have exercised discretion to suspend his investigation into the complaints pending completion of “an outstanding process” before the Ontario Human Rights Tribunal. There was no outstanding process before the Tribunal and thus no basis upon which the Commissioner could have exercised his discretion to suspend the investigation.

[64] We see no merit to Councillor Chiarelli’s jurisdictional argument. On a plain reading of the Code of Conduct and the Complaint Protocol, the complaints fall within the Commissioner’s jurisdiction, and there was no “outstanding complaint under another process” that would have justified the Commissioner suspending investigation into the complaints.

Issue #2 – Jurisdiction of the Commissioner to Rule on Allegations of Bias Against City Council and Members of City Council

[65] On February 11, 2020, counsel for Councillor Chiarelli wrote to the Commissioner and to Ottawa City Council, taking the position that these matters could not proceed because City Council was biased against Councillor Chiarelli. In the 13-page letter setting out the bias allegations, Councillor Chiarelli did not raise a single allegation that the Commissioner, himself, was biased or had done anything to give rise to a reasonable apprehension of bias. The allegations in the letter are all directed at City Council or members of Council.

[66] On February 12, 2020, the Commissioner responded, stating that he did not have jurisdiction to rule on an allegation of bias against City Council.

[67] In his Notice of Application and in his factum, Councillor Chiarelli argued that the Commissioner unreasonably concluded that City Council was not biased against him. That is not what the Commissioner decided. The Commissioner was clear in his response: “[t]he issues raised in your letter are outside my jurisdiction…. [Y]our request to me to stand down in this inquiry is declined.”

[68] We consider this issue to be a question of “true” jurisdiction, reviewable in this court on a correctness standard. It concerns the demarcation of roles and responsibilities between City Council and the Commissioner, and in particular, the position of the Commissioner in respect to City Council’s role to consider and respond to a report from the Commissioner. In simple terms, the Commissioner reports to and is responsible to City Council. City Council is not responsible to and is not subject to having its decisions reviewed by the Commissioner.

[69] An allegation of bias is to be made, at first instance, to the body alleged to be biased or to have shown a reasonable apprehension of bias.[^10] Applied to this case, allegations of bias or reasonable apprehension of bias against City Council had to be made to City Council, not to the Commissioner. The Commissioner was correct in finding that he had no jurisdiction to rule on an allegation of bias, or reasonable apprehension of bias, made against City Council.

Issue #3 – Allegations of Bias and Reasonable Apprehension of Bias Against the Commissioner

[70] Councillor Chiarelli alleges bias or a reasonable apprehension of bias against the Commissioner on the following bases:

a. “[T]hroughout the investigative process, [the Commissioner] displayed an allegiance to Council, and a clear disposition against Councillor Chiarelli.” (factum, para. 44)

b. The Commissioner failed to conduct a fundamental step in the investigative process: to determine on a preliminary basis whether another policy or piece of legislation covered the complaints. (factum, para. 44)

c. The Commissioner “refused to accept objective medical evidence” respecting Councillor Chiarelli’s health condition and “continued to relentlessly push for Councillor Chiarelli’s participation in the investigation.” (factum, para. 45, paras. 46 – 51)

d. The Commissioner recommended “the harshest penalty possible”, a pay suspension valued at about $79,000. (para. 52)

e. The Commissioner stated in his report that there was “no exculpatory evidence” other than Councillor Chiarelli’s written statement of October 3, 2019, when there were text messages from a former employee which were available to the Commissioner, which offered to provide evidence in favour of Councillor Chiarelli.

[71] Particular a is a conclusion rather than a particular. We return to it at the end of our analysis. Particular b is without merit. The Commissioner did assess his jurisdiction, both at the outset and in response to Councillor Chiarelli’s jurisdictional objection. His conclusion that he had jurisdiction was reasonable. It cannot be a basis on which to find a reasonable apprehension of bias. Particular d concerns a substantive recommendation made by the Commissioner. We find that this recommendation was reasonable. Making a reasonable recommendation cannot be a basis on which to find a reasonable apprehension of bias. We address the other two particulars alleged against the Commissioner [c and e] in detail below.

[72] During oral argument, counsel for Councillor Chiarelli advanced another theory of bias against the Commissioner. He argued that the Commissioner was “tainted” by the “obvious bias” of City Council. He argued that members of Council, including the Mayor, were so clear and so vocal that they thought the complaints were valid that the Commissioner would have “understood which way the wind was blowing” and been influenced in his investigation and conclusions.

[73] We do not accept this argument. The structure for establishing a position of “Integrity Commissioner” has been designed by the Province to create that office as independent. The Legislature has designed the structure, and no inference can be drawn that, due to that structure, the independence and neutrality of the Commissioner is “tainted” because the Mayor or members of Council may have indicated their views.

(a) The Legal Test for Bias and Reasonable Apprehension of Bias

[74] The Commissioner’s role is investigative, not adjudicative. Councillor Chiarelli accepts this characterization (Councillor Chiarelli’s Factum, paras. 8, 10 and 60).

[75] The test to show bias or a reasonable apprehension of bias on the part of an adjudicator is a high one:

“Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.[^11]

There is a “strong presumption” of impartiality; “[t]he threshold for a successful allegation of apprehended bias is high”.[^12]

[76] The test for showing bias or a reasonable apprehension of bias on the part of someone performing an investigative or administrative function is even higher than it is for someone performing an adjudicative function:

The standard of conduct which is applicable to those performing an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigate function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.[^13]

The question is whether the Commissioner exhibited a “closed mind” such that he “predetermined the issue”.[^14]

(b) The Process for Alleging Bias

(i) Making the Allegation

[77] An allegation of bias is to be made, at first instance, to the person who is alleged to be biased.[^15] Councillor Chiarelli raised the issue of bias on the part of Council, as is discussed below. He did not raise an issue with alleged bias on the part of the Commissioner prior to commencing these proceedings. This failure is fatal to his pursuing this issue before us.

[78] This is no mere technicality. An allegation of bias impugns the integrity and conduct of the person against whom it is made. That person is not a party to the underlying conflict, and the allegation, by its nature, seeks to cast a neutral party into the conflict itself. That person is entitled to respond to the allegation and, where the allegation of bias is rejected, to explain why they are not biased in fact, and why their conduct does not give rise to a reasonable apprehension of bias. Usually, this is the only chance the person has to respond to serious allegations made against them. If this issue is then pursued on judicial review, it is the task of this court to review the decision on the bias issue – a task we cannot perform since the issue was not raised with the Commissioner and so he has not made a decision on the issue that we can review.

[79] There are exceptions to this principle, none of which apply here. Where it is argued that many discrete points, taken cumulatively, give rise to an apprehension of bias, it may not be necessary to raise each and every one with the decisionmaker as they arise. Where a point does not arise until the decision is rendered, while the preferable practice is to raise the issue after-the-fact with the decisionmaker, it is not always necessary to do so.[^16] But generally, the allegation of bias must be raised with the person alleged to be biased before this court will permit a party to raise it with this court.

[80] This point is all the more notable in this case in light of the letter sent on Councillor Chiarelli’s behalf on February 11, 2020, providing detailed allegations of bias against City Council and various members of Council. Although the letter was addressed to the Commissioner, and he was asked to terminate his investigation, no allegations of bias were made in it against the Commissioner.

[81] This would be a sufficient basis to dispose of this issue. However, we also now consider the allegations of bias against the Commissioner on their merits and conclude that there is no basis for them.

(ii) Impact on the Ongoing Process

[82] Where an allegation of bias is made, that issue should be addressed within the process in which it is raised. Where the person against whom it is raised declines to recuse himself, the process then continues. Using this case to explain this point, it was open for Councillor Chiarelli to make this allegation to the Commissioner. Had he done this, then it would have been for the Commissioner to decide the point. If the Commissioner decided there was no bias or reasonable apprehension of bias, then the process before the Commissioner would continue. It is not open to someone in the Councillor’s position to decide, for himself, that the Commissioner is biased, and for that reason refuse to participate in the process.

[83] In some exceptional circumstances, where an allegation of bias is rejected, the person who has made the allegation may bring an application for judicial review in this court. Usually this court will not entertain that application while the process is underway, for the same reason this court does not generally entertain challenges to any interlocutory rulings made during an administrative process: such challenges are “premature” and generally may not be raised except as an element of a challenge brought to the final result of the administrative process.[^17] However, where a challenge to an interlocutory ruling falls within the category of “exceptional circumstances”, this court may entertain the challenge.[^18]

[84] It is clear from the record that the Councillor has not followed this principle and continued to resist it right up to and during oral argument. Counsel argued that a reason for the Councillor’s failure to cooperate in the investigation was the Councillor’s opinion that Council and the Commissioner were biased against him. That is not a valid excuse for not participating.

(c) Allegation that the Commissioner “refused to accept objective medical evidence” respecting Councillor Chiarelli’s health condition and “continued to relentlessly push for Councillor Chiarelli’s participation in the investigation.” (factum, para. 45, paras. 46 – 51)

[85] Councillor Chiarelli raises his health issues as an aspect of alleged bias on the part of the Commissioner.

[86] During oral argument, counsel acknowledged the seriousness and importance of the allegations against Councillor Chiarelli, which he described as potentially “career-ending” and “legacy-destroying”. We accept that characterization from the perspective of Councillor Chiarelli. From the perspective of the complainants, the alleged conduct, if true, profoundly affronted their dignity, as job interviewees, as women, as human beings. From the perspective of the City of Ottawa, the complaints were also very serious: alleged conduct by a City Councillor falling so far outside the range of acceptable behaviour as to bring disgrace on the City and its municipal government.

[87] On the information before us, Councillor Chiarelli’s health challenges were also very serious and doubtless – at times – debilitating. The Commissioner had less information about the Councillor’s health situation than do we, but on the limited information provided to him by Councillor Chiarelli, the Commissioner knew that the Councillor was seriously ill.

[88] The Commissioner was required to balance his duty to proceed with the investigation without delay with Councillor Chiarelli’s need for accommodation in the investigation process because of his health issues. This balance was informed by the seriousness of the complaints for all involved, and the desirability that the complaints be addressed promptly, on the merits.

[89] It is in this context that we consider the allegation that the Commissioner’s conduct towards Councillor Chiarelli evinced bias or gives rise to a reasonable apprehension of bias. We start by reviewing the information placed before us respecting Councillor Chiarelli’s medical condition. We then summarize the medical information provided by Councillor Chiarelli to the Commissioner on this issue. As will be clear, the Commissioner was provided with less information than has been put before this court. On the issue of bias, the Commissioner’s conduct is seen in the context of the information provided to him. As will be clear, the Commissioner did not “refuse to accept medical evidence”. The Commissioner did not “push” for the Councillor’s participation in the investigation. He did ask the Councillor to state clearly and unequivocally whether he would participate in the process once he was well enough to do so.

(i) Councillor Chiarelli’s Evidence to this Court Concerning his Medical Challenges

[90] In the Spring of 2019, Councillor Chiarelli experienced high blood pressure, high blood sugar and “general malaise”. He takes the position that, because of these conditions, he became unable to fulfil his duties as a Councillor as of August 14, 2019.

[91] On September 25, 2019, after he had been given notice of the First Complaint, and after he had challenged the Commissioner’s jurisdiction, Councillor Chiarelli formally requested Council to approve a medical leave of absence. A note from his treating physician stated that Councillor Chiarelli had been diagnosed with “multiple comorbidities” and that he had been at a hospital Emergency Room on August 14, 2019 for medical treatment. Council deferred this request and asked for further medical information.[^19]

[92] Councillor Chiarelli submitted two additional medical notes, on October 8 and October 22, 2019, supporting his request for a medical leave of absence. Councillor Chiarelli had a “sudden syncopal attack” on October 12, 2019 and had been taken to hospital by ambulance. “[C]ardiac evaluation was instituted and evaluations were ongoing.” His doctor recommended a medical leave of absence to December 1, 2019, when the Councillor would be re-assessed.

[93] On November 29, 2019, Councillor Chiarelli was advised by his cardiologist that he required open-heart surgery. He was placed on an emergency waiting list and on December 13, 2019 he underwent multiple bypass surgery. The operation succeeded, but the Councillor developed a serious post-operative infection and was readmitted to hospital from January 8, 2020 to January 24, 2020.

[94] On March 26, 2020, Councillor Chiarelli’s cardiac surgeon recommended that he remain off work until June 29, 2020.

[95] On April 14, 2020, Councillor Chiarelli was taken to the hospital Emergency Room due to resurgence of infection and fears he had suffered a stroke.

[96] On March 4, 2020, Councillor Chiarelli had consulted a neurologist who, in turn, had referred Councillor Chiarelli to clinical neuropsychologist Dr Catherine Gow for evaluation, which took place in June and July 2020. Dr Gow diagnosed the Councillor as suffering from Major Neurocognitive Disorder (Vascular) resulting in significant cognitive decline. The evaluation found that the Councillor’s domains of memory, new learning, and recall are moderately to severely impaired, as is his ability to retrieve information from his long-term memory. In her report, Dr Gow stated:

[Councillor Chiarelli] has markedly reduced ability to provide an account of events, the likes of which may be required in swearing a detailed affidavit, and/or being able to recall this information at a later date on the basis of neuropsychological findings.

Dr Gow went on to state:

A significant disadvantage in responding in a real-time fashion, learning and recalling requisite information, self-monitoring his recall for accuracy, reasoning, problem-solving, and making decisions with respect to the conflictual and legal proceedings he currently faces.

[97] Dr Gow’s report raises issues of Councillor Chiarelli’s ability to participate in the investigation and obviously would seem to raise issues with Councillor Chiarelli’s ability to continue to serve as a City Councillor. None of this information was before the Commissioner or City Council at the time the Report was provided to Council and Council made its decision. No motion has been brought before us to adduce this as “fresh evidence” and no argument has been made before us that Councillor Chiarelli was and continues to be cognitively impaired to such a degree that he was unable to participate in the investigation.

(ii) Information Provided to the Commissioner About Councillor Chiarelli’s Health Issues

[98] The Complaint Protocol provides that a Councillor is entitled to notice of a complaint and ten days in which to provide a response to it. The Commissioner is obliged to give the Councillor an opportunity to address the allegations, not only in the formal response to the complaint to be provided within ten days, but also within any investigation that the Commissioner undertakes. Where a Councillor refuses to participate in an investigation, the Commissioner has the power to issue a summons to compel the Councillor to provide evidence to the Commissioner.

[99] The Commissioner is bound by the Ontario Human Rights Code, and specifically, is required to accommodate physical or mental disability to the point of undue hardship. It is for the person requesting accommodation to identify the need for accommodation in sufficient detail and particularity that the Commissioner is able to provide appropriate accommodation.

[100] In this court, then, the question is not what accommodations Councillor Chiarelli required in the investigation process, based on the information he has provided to this court about his medical issues. Rather, it is whether the Commissioner reasonably accommodated the Councillor’s disability, to the point of undue hardship, based on the information provided to the Commissioner by Councillor Chiarelli. A review of the communications made to the Commissioner is necessary to undertake this analysis.

[101] The following chronology sets out the dealings between the Commissioner and Councillor Chiarelli and includes all material medical information provided to the Commissioner:

September 6 – October 8, 2019: the three complaints are received by the Commissioner.

September 19, 2019: Commissioner gives notice of the First Complaint to Councillor Chiarelli, giving him ten days to respond.

September 24, 2019: Councillor Chiarelli disputes the Commissioner’s jurisdiction over the First Complaint and asks the Commissioner to reconsider his decision to investigate.

October 3, 2019: Commissioner decides that he has jurisdiction and confirms his decision to investigate the First Complaint. The Commissioner extends the time for Councillor Chiarelli to respond to October 10, 2019.

October 3, 2019: Councillor Chiarelli releases a public statement denying allegations of sexual harassment which had been reported in the media.

October 10, 2019: Commissioner gives notice of the Second Complaint to Councillor Chiarelli, giving him ten days to respond.

October 10, 2019: Councillor Chiarelli advises that he will commence an application for judicial review of the Commissioner’s decision to investigate, and states:

Councillor Chiarelli will not be responding substantively to any complaint that has been filed with your office to date, or any similar and/or related complaint that might be filed, until a judicial decision on this extremely important jurisdictional issue has been rendered by the Ontario Divisional Court.

October 18, 2019: Commissioner responds to the letter from Councillor Chiarelli’s lawyer, taking the position that any application for judicial review would be premature, that the Commissioner will proceed with his investigation, and inviting Councillor Chiarelli to participate. If Councillor Chiarelli decides not to participate, then the Commissioner will complete his investigation and report to City Council without a response from Councillor Chiarelli. The Commissioner asks that Councillor Chiarelli confirm his willingness to participate in the investigation by October 29, 2019.

October 29, 2019: Commissioner gives notice of the Third Complaint to Councillor Chiarelli, giving him ten days to respond.

December 10, 2019: Commissioner’s investigator requests an interview with Councillor Chiarelli and asks the Councillor to provide available dates by December 13, 2019

December 13, 2019: Councillor Chiarelli’s counsel advises the Commissioner that the Councillor had, that day, been admitted to hospital for heart surgery and was not in a position to “consider the request” for an interview.

December 23, 2019: Commissioner seeks an update on the Councillor’s health status and requests answers to two questions: (i) whether it remains the Councillor’s intention not to participate in the Commissioner’s process (as expressed on October 10, 2019); and (ii) if the Councillor is going to participate, when he may be available for an interview, given his health status.

January 6, 2020: Commissioner follows up on his inquiry of December 23, 2019, to which he had not received a response.

January 7, 2020: Councillor Chiarelli’s counsel responds, declining to state whether the Councillor will participate. Rather, he writes that the Councillor “remains prepared to consider the request that he attend for interview once his recovery… has progressed to a stable and acceptable level.” Counsel advises that typical recovery time is 6-12 weeks. In response, the Commissioner confirms that he will follow up again in six weeks.

January 9 and 13, 2020: Commissioner provides Councillor Chiarelli with updates on the status of the Second Complaint and the Third Complaint and extends the Commissioner’s anticipated reporting date to City Council: “subject to your client’s medical recovery, I anticipate making a report available in Q1 2020.”

February 11, 2020: Councillor Chiarelli writes a letter to City Council and the Commissioner alleging bias on the part of Council and asking the Commissioner to stay the investigation.

February 12, 2020: Commissioner writes to Councillor Chiarelli advising that his allegations of bias against City Council were outside the jurisdiction of the Commissioner to decide. The Commissioner reiterates his two previous requests: “I confirm my interest in interviewing the Councillor and seeking confirmation on his willingness to participate or not.”

February 17, 2020: Counsel advises that Councillor Chiarelli was readmitted to hospital from January 8-24 and is scheduled for reassessment on March 24, 2020. The letter repeats the Councillor’s refusal to state his intention to participate in the investigation once he has recovered sufficiently to do so.

February 20, 2020: Commissioner writes to acknowledge that a firm date for an interview cannot be set, given the Councillor’s health status, and asks for confirmation “if your client will participate in the investigation.”

February 27, 2020: Councillor Chiarelli provides the Commissioner with two medical notes stating that the Councillor expects to return to work by March 25, 2020. The Councillor again declines to confirm whether he will agree to be interviewed once he is well enough to participate.

February 28, 2020: Not having received confirmation that the Councillor will participate voluntarily, the Commissioner decides to issue a summons to the Councillor. The Commissioner asks counsel to accept service of the summons on behalf of his client. Counsel does not respond.

March 4, 2020: Commissioner issues a summons to the Councillor for an interview on April 6, 2020. Not having had a response to the request to accept service of the summons, a process server seeks to serve the summons on the Councillor personally at his home. Councillor Chiarelli refuses to open the door to accept delivery of the envelope. The summons is left at Councillor Chiarelli’s front door and is emailed to his counsel later the same day. As a result of the rapid development of COVID-19 precautions, the Commissioner defers the summons attendance and eventually decides to conduct the interview by teleconference.

April 14, 2020: Commissioner advises that the summons is rescheduled for May 6, 2020, by teleconference.

April 17, 2020: Counsel advises that the Councillor had another medical emergency on April 14, 2020. He encloses another medical note stating that the Councillor’s revised return-to-work date is June 29, 2020. The note is dated March 26, 2020. Counsel also takes the position that Councillor Chiarelli was not served properly with the summons.

April 24, 2020: Commissioner advises Councillor Chiarelli’s lawyer that, rather than compel Councillor Chiarelli’s unwilling participation, he will cancel the summons and cancel the May 6th interview. The Commissioner confirms the Councillor’s consistent refusal to state his willingness to participate and states that he will rely on the Councillor’s October 3, 2019 public statement as his response to the complaints.

May 12, 2020: Councillor Chiarelli’s lawyer writes to the Commissioner and advises that Councillor Chiarelli has previously confirmed his willingness to participate in the investigation. On the record, as described above, this statement is not true.[^20]

May 14, 2020: Commissioner writes to Councillor Chiarelli’s lawyer setting out the history of communications in which the Councillor has never confirmed his willingness to participate, and then states as follows:

If it is in fact your client’s intention to participate in the investigation, I require a firm and unequivocal commitment [that] Councillor Chiarelli will participate in the investigation as soon as he is medically cleared to do so.

I formally request you confirm, in writing by 5 pm May 15, 2020, that Councillor Chiarelli will participate in the investigation when he is medically cleared to do so. In addition, I would like your commitment to provide any updates on your client’s medical recovery that change the June 29th date identified on the most recent medical certificate. (all emphasis in original)

June 25, 2020: Since neither Councillor Chiarelli nor his lawyer responds to the Commissioner’s letter of May 14, 2020, the Commissioner sends a copy of his draft report to counsel for Mr Chiarelli and asks for comments by July 3, 2020.

July 6, 2020: Counsel writes to the Commissioner stating the Councillor’s intention to bring this application for judicial review. No other comments are made respecting the draft report.

July 9, 2020: Commissioner files the Report with City Council and provides a copy to Councillor Chiarelli’s counsel.

July 15, 2020: Commissioner presents the Report to City Council and recommends that Council (i) receive the Report including the findings that Councillor Chiarelli contravened sections 4 and 7 of the Code of Conduct; and (ii) impose sanctions of three consecutive 90-day suspensions of remuneration, one for each of the complaints. City Council votes to impose the sanctions recommended by the Commissioner.

[102] As seen in this summary, the following medical information was provided to the Commissioner by Councillor Chiarelli:

a. December 13, 2019: Councillor Chiarelli’s counsel advises the Commissioner that the Councillor had, that day, been admitted to hospital for heart surgery and was not in a position to “consider the request” for an interview.

b. January 7, 2020: Councillor Chiarelli’s counsel advises that typical recovery time is 6-12 weeks. In response, the Commissioner confirms that he will follow up again in six weeks.

c. February 17, 2020: Councillor Chiarelli’s counsel advises that the Councillor was readmitted to hospital from January 8-24 and was scheduled for reassessment on March 24, 2020.

d. February 27, 2020: Councillor Chiarelli provides the Commissioner with two medical notes stating that the Councillor expects to return to work by March 25, 2020.

e. April 17, 2020: Councillor Chiarelli’s lawyer advises that the Councillor had another medical emergency on April 14, 2020. He encloses another medical note stating that the Councillor’s revised return-to-work date is June 29, 2020. The note is dated March 26, 2020.

[103] During oral argument, counsel argued that the Councillor’s health issues had been raised with City Council prior to his heart surgery and were widely reported in the media. He argued that it was notoriously understood that the Councillor was gravely ill and that this knowledge ought to be imputed to the Commissioner throughout.

[104] We do not accept this submission. The Councillor never provided information to the Commissioner that he was unable to participate in the investigation, aside from the message on December 13, 2019 that the Commissioner was undergoing heart surgery that very day. Aside from that one instance, the information provided by the Councillor was framed around his “recovery time” and when he could “return to work”. The Councillor could well have been in a situation where he was advised not to return to the rigours of day-to-day work as a City Councillor, but that he would have been able to make decisions about his involvement in the investigation and to participate in an interview – either in-person or by some other means. None of the medical information provided by Councillor Chiarelli, except the information on December 13, 2019, provides a basis to explain his inability to commit to participate in the investigation or to be interviewed.

[105] In addition, Councillor Chiarelli returned to some of his duties as a City Councillor, including attending some City Council meetings. He attended and participated in the regular Council meeting on February 26, 2020 and special Council meetings on March 26 and April 8, 2020. He had resumed some regular constituency duties, he had been active on social media, he had given media interviews, and he released a personal video message on March 22, 2020. Counsel argued that these events do not reflect the Councillor’s ability to participate in the investigation. Councillor Chiarelli had to attend Council meetings or be removed from his office, because City Council had not see fit to grant him a medical leave of absence. We do not accept this argument. The Councillor was conducting himself on the basis that he was able to do some of his work.

[106] We accept that the Councillor had significant health challenges from at least as early as the end of November to the City Council meeting at which the Report was received and Council decided on sanctions. However, we do not accept that the Councillor was unable to participate in the investigation or to provide substantive responses to the complaints. More materially, we find that the Councillor did not provide information to the Commissioner establishing that he was unable to participate in the investigation.

[107] The allegations against Councillor Chiarelli were serious. The Commissioner was obliged to pursue his investigation and to report to Council in a timely manner. On the basis of the information that was provided to him by Councillor Chiarelli, he accommodated the Councillor’s medical circumstances as follows:

a. When told of the Councillor’s surgery on December 13, 2019, the Commissioner said that he would follow up later.

b. When the Commissioner received no response to his follow-up inquiry on December 23, 2019, he followed up again on January 6, 2020.

c. When told by Councillor Chiarelli’s solicitor on January 7, 2020 that the “usual recovery time” for the operation is 6 – 12 weeks, he said he would follow up again in 6 weeks.

d. The Commissioner did not pursue an interview again until February 12, 2020, the day after counsel for the Councillor wrote to the Commissioner and City Council raising an allegation of bias against City Council. When counsel responded to the Commissioner on February 17th describing the Councillor’s hospitalization in January and date for reassessment of March 25, 2020, the Commissioner acknowledged that a date for an interview could not be set but asked the Councillor to confirm his intention to participate in an interview.

e. The Commissioner issued a summons, for a date after Councillor Chiarelli’s scheduled reassessment on March 25, 2020.

f. On April 14th the Commissioner rescheduled the return of the summons to May 6th, by teleconference. When the Councillor’s lawyer responded on April 17th, saying the Councillor had had another medical emergency and now had a revised “return to work date” of June 29th, the Commissioner revoked the summons, confirmed the Councillor’s longstanding refusal to state whether he will be interviewed when he is well enough, and stated that he would rely on the Councillor’s October 3, 2019 public statement as the Councillor’s response to the complaints.

g. On June 25, 2020, the Commissioner forwarded a draft report to Councillor Chiarelli and invited comment.

[108] We are satisfied that the Commissioner responded appropriately to the information he was given respecting Councillor Chiarelli’s health circumstances. We conclude that the Councillor was accommodated in the investigation process, and that he was able to participate in it by mid-February and that any periods thereafter during which he was incapacitated from participating were transitory. We find that Councillor Chiarelli decided not to participate because he considered the process tainted by bias and he questioned the Commissioner’s jurisdiction, and not because he was unable to do so for health reasons.

[109] We are also satisfied that the Commissioner reasonably concluded that Councillor Chiarelli had decided not to participate in the investigation process for reasons other than his health circumstances, and reasonably proceeded on the basis of the Councillor’s public statement of October 3, 2019, being the only substantive response from the Councillor to the complaints.

[110] In light of these findings, it follows that the Commissioner’s accommodation of the Councillor’s health issues was reasonable and does not reflect bias or provide a basis for finding a reasonable apprehension of bias against the Commissioner.

(d) Allegation that the Commissioner stated in his report that there was “no exculpatory evidence” other than Councillor Chiarelli’s written statement of October 3, 2019, when there were text messages from a former employee which were available to the Commissioner, which offered to provide evidence in favour of Councillor Chiarelli.

[111] We note that this is the sole substantive criticism made by Councillor Chiarelli of the Report. It is raised, not in support of an argument that the Report is unreasonable, but to support an allegation of bias or reasonable apprehension of bias on the part of the Commissioner. We assess this argument both substantively and in terms of the allegation of bias and conclude that it raises no concerns about the reasonableness of the Report and is not evidence supporting an allegation of bias or reasonable apprehension of bias.

[112] First, we have found that the Councillor was given notice of the complaints, an opportunity to respond to those complaints at the start of the investigation, and an opportunity to be heard in the investigation. Aside from the blanket denial in the Councillor’s public statement of October 3, 2019, he chose not to respond to the complaints or to avail himself of the opportunity to be heard during the investigation. He was provided with a draft of the Report and given an opportunity to comment upon it, and he did not raise the point with the Commissioner that he now raises with us. As stated above, this court generally will not consider issues that were not raised in the proceedings below. It is not open to a party to opt out of the proceedings below and then raise his issues for the first time with this court. For this reason, we would reject this argument, both as it relates to the substantive reasonableness of the Report and as it is argued to support an allegation of bias or reasonable apprehension of bias on the part of the Commissioner. Further, the record simply does not support the Councillor’s substantive criticism in any event.

[113] The Councillor received text messages from Victoria Laaber in July 2019, in which Ms Laaber stated that a friend of a friend asked her to come forward with allegations similar to those made by the complainants. Councillor Chiarelli argues that the Commissioner had these text messages, interviewed Ms Laaber, and that his failure to refer to these points in his Report reveals his closed mind.

[114] We reject this argument for three reasons. First, ss. 223.5 and 223.6 of the Municipal Act, 2001 preclude the Commissioner from disclosing evidence he considers unnecessary for the Report. The Commissioner cannot now confirm whether Ms Laaber was interviewed, if she was, the evidence that she provided, or whether the Commissioner received the referenced text message during his investigation, as alleged by the Councillor. No inference can be drawn that the Commissioner did not investigate this point, given the statutory scheme.

[115] Second, there is no basis to believe that the evidence of Ms Laaber would have been exculpatory. Ms Laaber made several public comments reported in the press and found on the internet in which she said that she had approached the Commissioner to share her experiences of being abused by Councillor Chiarelli. On the record before this court, the text message described by Councillor Chiarelli suggests that Ms Laaber was being encouraged to come forward as a victim of his abuse.

[116] Finally, the Commissioner did investigate and report upon the allegation that the complaints against the Councillor arose from ulterior motives. The Commissioner concluded on this point:

Having reviewed the testimony and the evidence, I have concluded that there is no credible basis for such a conspiracy theory. There is no evidence of an organized political movement. The three complainants did not know each other and there is no evidence of any collusion. The stated reasons in their testimony for coming forward are that the complainants feel a sense of victimization and responsibility to prevent this from happening to other women. All three complainants are believable.

[117] We find that Councillor Chiarelli has not established that the Commissioner failed to consider exculpatory evidence or to explore whether there were ulterior motives for the complaints.

(e) Conclusion on the Bias Allegation Against the Commissioner

[118] We characterized Councillor Chiarelli’s first alleged particular of bias as a conclusion: “[T]hroughout the investigative process, [the Commissioner] displayed an allegiance to Council, and a clear disposition against Councillor Chiarelli.” We firmly reject this conclusion. No part of the record establishes that the Commissioner “displayed an allegiance to Council” or a “clear disposition against Councillor Chiarelli.” Rather, we find that the Commissioner showed professionalism, courtesy, patience and restraint in his dealings with Councillor Chiarelli and his counsel.

[119] The Commissioner followed the Complaint Protocol. He repeatedly accommodated Councillor Chiarelli’s health condition to give the Councillor an opportunity to be heard during the investigation. He continued this accommodation until he concluded, reasonably, that the Councillor would not participate willingly in the investigation. In taking the approach that he did, the Commissioner balanced his duty to investigate and report on the complaints in a timely manner with the need to accommodate Councillor Chiarelli’s health condition. We see no basis, whatsoever, for the allegation that the Commissioner proceeded with a closed mind, that his investigation was predetermined, or that the Commissioner discharged his duties in a manner that could give rise to a reasonable apprehension of bias.

Issue #4 – Allegations that Councillor Chiarelli Was Denied Procedural Fairness and Natural Justice

[120] In the Notice of Application, paras. (q) and (r), Councillor Chiarelli alleged the following particulars of his allegation that he was denied procedural fairness and natural justice in the complaint investigation process:

(q) Councillor Chiarelli was denied proper particulars of the allegations that purportedly form the subject matter of the complaints and has been severely prejudiced in his ability to respond to the complaints and/or test the veracity of the allegations.

(r) The Integrity Commissioner has purportedly refused to hold the complainants to the confidentiality requirements associated with the investigative process, while at the same time consistently insisting that Councillor Chiarelli abide by the same.

[121] These allegations were not pursued before us in written or oral argument. The Record does not support either of them. We address them to be clear that we have considered the allegations, even though they were not expressly argued before us. We would also add that, for the reasons given above on the issue of bias, we also conclude that the Commissioner’s accommodation of Councillor Chiarelli’s health issues was procedurally fair.

II. Claim Against City Council

[122] Councillor Chiarelli alleges that City Council, or some members of Council, including the Mayor, were biased or showed a reasonable apprehension of bias against him. He relies upon comments and conduct of members of Council which he says show that they had already made up their minds that he had committed misconduct, and in respect to sanction.

(a) Comments Made by and Conduct of City Councillors Prior to the Completion of the Commissioner’s Investigation

[123] In September 2019, shortly after the allegations against Councillor Chiarelli were made public, Mayor Watson and one Councillor issued a public statement in support of the women who had come forward with their allegations. Another Councillor agreed with their statement and reposted it to her Twitter account.

[124] Three other Councillors also issued a joint statement in which they commended the complainants for coming forward and called on Councillor Chiarelli to “resign and immediately apologize” if the allegations were true. Two Councillors publicly stated that they believed the allegations against Councillor Chiarelli were true.

[125] On October 19, 2019, Mayor Watson is reported to have said to the media: “As more allegations come forward, it becomes more disgusting and very upsetting as to what was going on in his office, for what appears to be many, many months if not years.”

[126] As noted above, on October 23, 2019, City Council deferred the Councillor’s request for a leave of absence due to a medical issue. On November 6, 2019, that request was denied.

[127] At the Council meeting on November 6, 2019, one Councillor refused to sit at the Council table while Councillor Chiarelli was present. Following the Council budget meeting, the Mayor stated that Councillor Chiarelli’s presence at the meeting made Council “extremely uncomfortable” and that most members of Council, including himself, did not want to be seen near him. Another Councillor stated on his Twitter account: “I support city staff who are protesting the return of Councillor Chiarelli. They want a safe and secure workplace.”

[128] Three weeks later, on November 27, 2019, Mayor Watson publicly stated: “My hope is that Mr. Chiarelli makes a decision. Either he decides he’s going to come back to work, which he’s been paid for the last several months, or he decides to resign.”

[129] Approximately two weeks later, the Mayor told the media that Council was no longer willing to work with Councillor Chiarelli and that the Councillors who had been assisting with his ward duties while Councillor Chiarelli was dealing with medical challenges no longer wanted to be associated with his office. Shortly thereafter, Mayor Watson again called for Councillor Chiarelli’s resignation: “Do the honourable thing and step down, and move on with your life… This is a situation that’s not going to go away until he goes away.”

[130] During the Council meeting of December 11, 2019, all members of Council but three – the Mayor and two Councillors – refused to sit at the Council table while Councillor Chiarelli was present. The same Councillor who had also refused to sit at the Council table on November 6, 2019 posted a photo on her Twitter account with the following quote: “Stand up for what is right, regardless of who is committing the wrong.” Mayor Watson later stated that he was standing “in spirit” with the rest of Council. One of the two Councillors who remained seated on December 11 subsequently issued a statement in which she noted that it was extremely important for Council to refrain from acting in a manner that could jeopardize the investigatory and adjudicative process by giving the impression that they had prejudged the outcome.

(b) City Council Receives Two Interim Reports from the Commissioner

[131] On February 12, 2020, City Council received the Commissioner’s first interim report. Under the Complaint Protocol, the Commissioner is required to provide an interim report where the investigation process takes more than 90 days. The first interim report was discussed briefly during the Council meeting on February 12. The merits of the complaints were not discussed.

[132] On May 27, 2020, City Council received the Commissioner’s second interim report. The second interim report was discussed briefly during the Council meeting that day. Again, there were no discussions as to the merit of the complaints.

(c) City Council Receives the Commissioner’s Report and Imposes Sanctions

[133] On July 15, 2020, City Council received the Commissioner’s Report. During that meeting, there was a lengthy discussion with the Commissioner with respect to his Report. Several Councillors took the opportunity to speak and to ask questions of the Commissioner. One Councillor commented that it was important that the process had in fact been fair and open, and that Councillor Chiarelli had been given ample opportunity to respond to the allegations against him.

[134] Councillor Chiarelli had the opportunity under s. 5(2.1) of the Municipal Conflict of Interest Act and s.11(3) of the Code of Conduct to respond to the Report; however, although he was present, he chose not to address Council.

[135] Following the discussion and debate, City Council voted to accept the sanction recommendations made by the Commissioner. The motion passed unanimously. Then Council passed a resolution calling upon Councillor Chiarelli to resign. That resolution is not challenged before us, but we do note that it reflects the calls made much earlier for resignation, reinforcing the sense of predetermination.

(d) Analysis

[136] Councillor Chiarelli submits that the comments made by and conduct of members of Council, including Mayor Watson, during the course of the Commissioner’s investigation, display their evident bias against him.

[137] In addition to the comments and what Councillor Chiarelli terms “acts of protest” by members of Council, the Councillor relies on the denial of his request for a leave of absence, the City’s decision to engage a professional to investigate allegations of improper conduct against him, and the City’s refusal to reimburse the applicant for his legal expenses.

(i) The Request for a Leave of Absence

[138] On September 25, 2019, Council considered the Councillor’s motion to authorize a leave of absence for him. The Councillor had provided notice, with medical documentation of his inability to attend at Committee and Council until at least October 9, 2019, due to a medical issue. Paragraph 259(1)(c) of the Municipal Act, 2001 provides that the office of a member of a city council becomes vacant if the member is absent from the meetings of Council for three successive months without being authorized to be absent by a resolution of Council. Section 83(14) of the City of Ottawa Procedure By-law is to the same effect regarding a member of a committee.

[139] Council deferred the motion to its next meeting on October 9, 2019 and, a second time, to October 23, 2019 to allow Councillor Chiarelli more time to provide additional information. On October 23, the motion to authorize the leave of absence was not adopted by Council.

[140] There is no obligation on Council to approve a leave of absence request; Council may approve or reject the request at its discretion. It is also important to note the advice received by Council from the City solicitor: that Council’s decision was not about giving Councillor Chiarelli permission to be absent on sick leave – which Councillor Chiarelli could do without Council’s direction. Rather, Council’s decision was limited to authorizing a leave of absence to prevent Councillor Chiarelli’s seat from being vacated following three months of absence.

[141] It is important to note when this decision was made. It was after the complaints had been made against Councillor Chiarelli. It was after he had issued a bald public denial of wrongdoing. But it was before Councillor Chiarelli had heart surgery on December 13, 2019.

[142] The Councillor did not make a further request for a leave of absence, after his surgery, when clearly his health circumstances had changed for the worse. Had he made such a request, he would have had to satisfy Council of his health circumstances and prognosis, which doubtless would have required him to disclose more about his medical circumstances than the absence notes he provided to the Commissioner. We have no evidence as to why the Councillor did not make a further request after his medical situation had obviously worsened.

[143] Councillor Chiarelli has not sought judicial review of Council’s decision on October 23, 2019 to refuse the leave of absence. Thus, the reasonableness of the decision is not before us. Councillor Chiarelli’s subsequent serious health issues cannot be used in hindsight to cast aspersions on Council’s decision of October 23rd. A lawful discretionary decision by City Council, which has not been challenged in this court, cannot be a basis for imputing bias to Council.

(ii) The Concurrent Investigation and the Refusal to Reimburse Legal Expenses

[144] There is simply no merit to Councillor Chiarelli’s suggestion that the City’s engagement of a professional to investigate the allegations against him, in addition to the Commissioner’s investigation, was “part of a coordinated and concerted effort to overwhelm and/or ‘out-resource’ Councillor Chiarelli.” There is no evidence that Councillor Chiarelli wished to take steps to defend himself that he could not afford to take.

[145] As for the decision relating to Councillor Chiarelli’s reimbursement for his legal fees in connection with the Commissioner’s investigation, that decision was made by City staff at the office of the City Clerk, not by Council. A decision made entirely by City staff cannot support an allegation that Council displayed bias toward the Councillor. No argument has been made that the Commissioner was unable to participate in the investigation because of the City’s decision respecting his legal costs. Finally, we note that funding legal costs by the City was subject to a proviso that the Councillor could be required to repay those costs if he was found to have committed misconduct. The decision not to reimburse legal fees has not been appealed or brought for review in this court. In all the circumstances it cannot be a basis for imputing bias to Council.

(iii) The Comments and Conduct of Council

[146] It is useful to reiterate here the dual role that members of City Council, including the Mayor, are required to fulfill. As elected representatives, Councillors are expected to express and act on their views on a wide variety of issues. They are political actors: they have been elected by the voters to represent particular points of view and they are expected to speak for their constituents.[^21]

[147] Members of Council also have an adjudicative role. Councillors were acting in their role as adjudicators when they decided to impose the sanctions recommended by the Commissioner. While Council’s discretion as to the appropriate sanction is limited by the Municipal Act, 2001, its function remains adjudicative. And though members of Council are not restrained from their political role, and may speak for their constituents, even in respect to a matter in respect to which they will perform an adjudicative role, that does not mean that there are no limits that apply. As Sopinka J. wrote in Old St. Boniface Residents Assn. v. Winnipeg (City):

In my opinion, the test that is consistent with the functions of a municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor is one which requires that the objectors or supporters be heard by members of Council who are capable of being persuaded…. The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged….[^22]

[148] In his written submissions, counsel for the Councillor argued that Council performs an adjudicative function in determining whether a fellow Councillor breached the Code of Conduct and then, if necessary, imposing a penalty. This is incorrect. Under the statutory scheme, it is the Commissioner who, following an investigation, determines if the complaint is sustained. Where the complaint is sustained, in whole or in part, the Commissioner is required to report to Council with his findings and any recommended corrective action. Council’s duty is to “consider and respond to the report.”[^23]. In this case, City Council voted to receive the Report and to impose the sanctions recommended by the Commissioner.

[149] The public statements by Councillors about their belief in the complainants’ stories and the Councillor’s comment supporting City staff in wanting a safe and secure workplace do not support a conclusion that Council had closed its mind and predetermined the outcome. These statements were made to reassure their constituents and victims who come forward, and to reassure City staff of Council’s commitment to a safe and secure work environment. Comments at the outset that some Councillors “believed the complainants” could be seen predeterminations, but we are not satisfied that they reflect a closed mind, especially given the nature of the allegations and the position of the complainants.

[150] We see the refusal of the majority of Council (supported by the Mayor “in spirit”) to sit at the Council table with Councillor Chiarelli and the calls for him to resign in a different light. One of the Councillors who remained seated on December 11, 2019 recognized that Council’s conduct could give the impression that Council had prejudged the outcome. Given that the penalties that Council may impose are limited to a reprimand or a suspension of remuneration for a period of up to 90 days, demands that Councillor Chiarelli resign – a penalty not even available to Council – before the Commissioner had completed his investigation, give the appearance of prejudgment on the issue of sanction. When it is recalled that the issue of sanction was the point of decision for Council – not the veracity of the complainants (which was in the domain of the Commissioner), evidence of predetermination of sanction impugns the adjudication that Council was obliged to perform

[151] As political actors, Councillors are expected to express their views and preconceptions, particularly on a matter such as this that has engendered significant public interest. When, however, the matter comes before them in their capacity as decisionmakers, it is important that the Councillors remind themselves of their responsibility to adjudicate fairly and with an open mind on the matter before them. With the one exception, members of Council did not do so. In our view, the combined effect of the statements by Councillors demanding Councillor Chiarelli’s resignation, their refusal to sit with him at the Council table, and the absence of their commitment to set aside their preconceptions and to decide the issue of sanctions based on the Commissioner’s Report and findings, the applicable principles, and their consideration of these matters (including anything Councillor Chiarelli might say to Council), is to taint Council’s decision on penalty.

[152] The Municipal Act, 2001 does not require a City Council to swear, affirm or otherwise indicate that they will discharge their adjudicative function with an open mind, on the basis of the record before them and the applicable principles. Such a formality may not be necessary where no allegation of bias has been made respecting City Council or a member of Council. However, in this case an allegation of bias was made by Councillor Chiarelli, by way of his counsel’s letter to City Council on February 11, 2020. That letter was never answered by or on behalf of Council. In this circumstance, given the nature of the conduct engaged in by some members of Council, we conclude that an objective person, viewing the matter dispassionately, with a full appreciation of the circumstances, would doubt whether members of Council were approaching their task with an open mind. That concern would be assuaged, in respect to some Councillors, by the proceedings before Council on July 15, 2020. However, in our view, the failure of all members of Council to address the allegation of bias and the conduct suggesting predetermination of the issue of sanction, given all that was said and done, taints the result. We find there is a reasonable apprehension of bias.

III. Remedy

[153] We dismiss the claims against the Commissioner. We allow the claim of reasonable apprehension of bias against City Council and we quash the sanction imposed by Council.

[154] Having regard to our conclusions, the remedy proposed by Councillor Chiarelli – that the issue of sanction not be referred back to Council and that Council be prohibited from taking further steps – is inappropriate. The Commissioner’s findings of serious misconduct are clearly established. Setting aside City Council’s decision on sanction and ordering prohibition would negate the Commissioner’s findings of misconduct, would be unfair to the complainants, and would be contrary to the public interest in having these matters determined on the merits.

[155] In determining the appropriate remedy, we are mindful that the Legislature has entrusted the decision on sanction to City Council and not to the court. At the same time, however, the question of remedy must also be guided by concerns for the proper administration of justice and the need to ensure access to justice.[^24]

[156] The Supreme Court of Canada has recognized that there are “limited scenarios” in which remitting the matter would stymie the effective resolution of matters in a manner that the Legislature could not have intended.[^25] In our view, this case falls within the category of “limited scenarios” in which remitting the matter back to the decisionmaker for determination would not be appropriate.

[157] Where a decision is set aside based on a reasonable apprehension of bias, ordinarily this court remits the issue back to a new decisionmaker. However, in this case there is no other decisionmaker available. In our view, the strong views expressed by some members of Council as to how the matter should turn out before they had received the Report, and their failure to take steps to bring themselves back to their adjudicative role before determining sanction, preclude remitting the matter back to City Council. Doing so would not undo the objective observer’s reasonable apprehension that Council had already made up its mind, would risk bringing the administration of justice into disrepute, and would be unfair to Councillor Chiarelli. We therefore decline to remit the issue of penalty to City Council. Instead, we will determine the appropriate sanction.

IV. The Appropriate Sanction

[158] While declining to remit a matter to the decisionmaker may be appropriate where it becomes evident to the reviewing court that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose, we wish to underscore that our decision not to remit the matter of sanction to City Council does not rest on this basis. It would be inevitable that Council would receive the Report, accept its findings and impose a sanction. The sanction itself would not be “inevitable”.[^26]

[159] The Commissioner found that the conduct of Councillor Chiarelli in interviewing and seeking to recruit the three complainants did not serve the interest of his constituents and that Councillor Chiarelli was not acting in a conscientious and diligent manner. The Commissioner found that in the interviews of two of the complainants, Councillor Chiarelli was planning to objectify them by using their sexuality for the purpose of recruiting male volunteers and assisting in his re-election efforts. Based on these findings, the Integrity Commissioner found that Councillor Chiarelli breached ss. 4.1 and 4.4 of the Code of Conduct in respect of each of the three complainants.

[160] The Commissioner also found that Councillor Chiarelli breached s. 7 of the Code of Conduct based on the finding that Councillor Chiarelli made comments to and asked questions of the complainants that were sexual in nature or focused on women’s bodies.

[161] The Commissioner based his recommendation that City Council consecutively impose the most serious sanction available in respect of each complaint – suspension of a Councillor’s remuneration for 90 days – on his conclusion that “the Councillor is the longest serving elected public office holder on Council and that this offensive and disreputable behaviour has been going on for a very long time.”

[162] For us, the nature of Councillor Chiarelli’s behaviour and his failure to participate in the process or to acknowledge his behaviour are dispositive of the issue of penalty. There is no question that Councillor Chiarelli’s conduct, as found by the Commissioner, was serious, offensive, and disgraceful, as well as a clear violation of the Code of Conduct. He engaged in a pattern of sexist harassment that demeaned the complainants who were seeking employment in his office; with respect to two of the complainants, the Commissioner found that Councillor Chiarelli planned to objectify them and use their sexuality to assist in his re-election efforts. As we note above, Councillor Chiarelli has not challenged the reasonableness of the Commissioner’s findings in this application.

[163] At no time, did Councillor Chiarelli acknowledge any wrongdoing or express remorse or regret for his offensive conduct. He refused to participate in the process with the Commissioner and he declined to address Council or to respond to the Report. His conduct brought disgrace upon the City he was elected to serve, and his response was to refuse to respond.

[164] We acknowledge Councillor Chiarelli’s long service in municipal politics. We acknowledge the serious health challenges he has faced. These factors do not persuade us that reduction in the sanction is warranted: we accept the characterization of it by the Commissioner.

[165] For these reasons, in relation to each of the three complaints, we would impose a suspension of Councillor Chiarelli’s remuneration as a member of Council for 90 days, with the sanctions to be imposed consecutively, an aggregate suspension of 270 days.

[166] We appreciate that this conclusion could leave some puzzled. If Council got it right, why would we set aside its decision and then re-impose it ourselves? The answer lies in the important principle that justice must not just be done, but also be seen to be done.

[167] We have found that there is a reasonable apprehension of bias on the part of Council. It would not be fair to let Council’s decision stand as a result. We would send the issue of sanction back for a fresh determination if we could, but there is no one for us to send it to. We cannot leave the conduct of Councillor Chiarelli unsanctioned, for obvious reasons. So, the task falls to us to decide.

[168] We could impose a different sanction: a substantial sanction short of the maximum could also be reasonable. But we will not impose a lesser sanction just so it is different from the one Council imposed: our task is to impose the appropriate sanction, whatever we find that to be. And in this case, we find that the maximum sanction is the appropriate sanction.

V. Costs

[169] The Commissioner is entitled to his costs. Although Councillor Chiarelli has succeeded against the City, his victory is a Pyrrhic one. His basic position – that his serious misconduct should go unnamed and unsanctioned – has not prevailed. We conclude that success as between the City and Councillor Chiarelli has been divided, but that Councillor Chiarelli was justified bringing the application because of the bias issue, even though he did not prevail on the underlying merits of the complaints or the issue of sanction. We would award him half of his partial indemnity costs as against the City of Ottawa, which we fix at $20,000, inclusive.

VI. Order

[170] The application as against the Commissioner is dismissed, with costs payable by Councillor Chiarelli to the Commissioner fixed on a partial indemnity basis at $40,000, inclusive, payable within thirty days.

[171] The application as against the City of Ottawa is granted and the sanction decision of City Council is quashed, with costs payable by the City of Ottawa to Councillor Chiarelli fixed at 50% of partial indemnity costs, in the amount of $20,000, inclusive, payable within ten days of the date on which Councillor Chiarelli pays the $40,000 in costs he owes to the Commissioner.

[172] We impose a sanction on Councillor Chiarelli of suspension of salary for 270 days in the aggregate. We understand that the suspension period has already run.

”Morawetz C.J.O.S.C.J.”

“D.L. Corbett J.”

“Ryan Bell J.”

Released: December 22, 2021

[^1]: Judicial Review Procedure Act, RSO 1990, c. J.1, ss. 2(1) and 6(1). [^2]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [^3]: Applicant’s Factum, para. 60; Commissioner’s Factum, para. 66. In respect to the standard of review of jurisdictional issues, see Vavilov, paras. 63-68; Di Biase v. Vaughan (City of), 2016 ONSC 5620 (Div. Ct.), paras. 115-117. [^4]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817; Mission Institution v. Khela, 2014 SCC 24, para. 79; Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, para. 43. See also London (City of) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 OAC 120 (CA). [^5]: Municipal Act, 2001, SO 2001, c.25 (the “Municipal Act, 2001”). [^6]: The hearing in this application was scheduled to be heard on January 13, 2021 but was adjourned on consent for mediation before Hackland J., after which it was rescheduled for May 25, 2021. [^7]: Municipal Conflict of Interest Act, RSO 1990, c.M.50. [^8]: Notice of Application, para. 1(a) to 1(f). [^9]: Municipal Act, SO 2011, c.25, s.223.3(1)1 [^10]: Speck v. Ontario Labour Relations Board, 2021 ONSC 3176 (Div. Ct.), para. 44, applying Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] SCR 654, para. 23. [^11]: Kivisto v. Law Society of Ontario, 2021 ONSC 6394 (Div. Ct.), para. 5, quoting R. v. Musselman (2004), 25 (CR) (6th) 295 (Ont. SCJ), para. 20; see Musselman, paras. 15-23 for a summary of applicable principles and see also: Committee for Justice and Liberty v. National Energy Board (1976), 1976 2 (SCC), 68 DLR (3d) 716 (SCC) and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 SCR 259. [^12]: R. v. Musselman (2004), 25 (CR) (6th) 295 (Ont. SCJ), para. 19; R. v. R.D.S. (1997), 1997 324 (SCC), 118 CCC 353 (SCC); R. v. Curragh Inc. (1997), 1997 381 (SCC), 113 CCC (3d) 481 (SCC). [^13]: Bell Canada v. Communication, Energy and Paperworkers Union of Canada (1997), 1997 4851 (FC), 127 FTR 44. [^14]: Sloan v. Canada (A.G.), 2016 FC 1003, paras. 46-49. See also: Di Biase v. City of Vaughan, 2016 ONSC 5620 (Div. Ct.), citing Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 SCR 282, para. 20. [^15]: Speck v. Ontario Labour Relations Board, 2021 ONSC 3176 (Div. Ct.), para. 44, applying Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] SCR 654, para. 23. [^16]: See, for example, Kivisto v. Law Society of Ontario, 2021 ONSC 6394 (Div. Ct.). [^17]: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61; Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 OR (3d) 798 (Div. Ct.). [^18]: Awada v. Allstate Insurance Company, 2021 ONSC 8108 (Div. Ct.). [^19]: Councillor Chiarelli notes that “similar requests” from two other Councillors were approved on September 25, 2019, and that, in his experience, no prior request from a Councillor for a medical leave of absence had ever been deferred or denied by Council. No contrary evidence was provided by the respondents. [^20]: This point is developed in greater detail below. [^21]: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 31 (SCC), [1990] 3 S.C.R. 1170, at 1197. [^22]: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 31 (SCC), [1990] 3 S.C.R. 1170 at 1197. [^23]: Code of Conduct, s. 15. [^24]: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, para. 140. [^25]: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, para. 142, citing D’Errico v. Canada (Attorney General), 2014 FCA 95, paras. 18-19. [^26]: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, para. 142.