[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Villeneuve v. North Stormont (Township), 2022 ONSC 6551
DIVISIONAL COURT FILE NO.: DC-21-2664
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, J.A. Ramsay and Leiper JJ.
BETWEEN:
ROXANNE VILLENEUVE
Applicant
– and –
THE CORPORATION OF THE TOWNSHIP OF NORTH STORMONT and THE INTEGRITY COMMISSIONER FOR THE TOWNSHIP OF NORTH STORMONT
Respondents
Ronald F. Caza and Geneviėve Therrien, for the Applicant
Frank Cesario and Danika Winkel, for the Respondent Township of North Stormont
Tina Lie and Catherine Fan, for the Respondent Integrity Commissioner
HEARD by videoconference at Ottawa: November 18, 2022
LEIPER J.
PART I INTRODUCTION
[1] The Applicant was an elected Councillor for the Township of North Stormont at the time of the events in issue. On July 8, 2021, the Integrity Commissioner for the Township of North Stormont (the “Integrity Commissioner”) filed a report to Township Council (the “Report”) in response to a complaint of the Chief Administrative Officer (“CAO”) concluding that the Applicant had breached the Code of Conduct for Members of Council (the “Code”).
[2] On August 10, 2021, Township Council adopted the Report. It suspended the Applicant’s remuneration for 45 days and prohibited the Applicant from communicating by email with the CAO and staff of the Township for 14.5 months, that is, until the end of the term of Council, except through the Mayor.
[3] The Applicant seeks judicial review of the Integrity Commissioner’s findings and recommendations to the Council. She also seeks judicial review of Council’s decision on sanction, arguing that she was denied procedural fairness and the sanction was unreasonable.
[4] The Township Council submits that the process was fair, and that Township Council imposed a reasonable sanction and corrective action which was responsive to the misconduct. The Integrity Commissioner submits that he had jurisdiction to conduct the inquiry under the Municipal Act, 2001, S.O. 2001, c. 25 and in accordance with the municipality’s Code of Conduct. The Integrity Commissioner submits that his findings of two breaches of the Code of Conduct were reasonable.
[5] I conclude for the reasons that follow, that the decision of the Integrity Commissioner was a reasonable one. I would grant the application as against the Township, as the sanction concerning email communications by the Applicant was unreasonable.
PART II BACKGROUND FACTS
[6] On November 9, 2020, the CAO for the Township filed a complaint with the Integrity Commissioner that the Applicant had breached the Code of Conduct by (i) engaging in recurring disrespectful behaviour towards the CAO; (ii) publicising confidential information about the CAO’s salary; and (iii) voting in a conflict of interest.
[7] The Integrity Commissioner investigated the complaint. The Applicant was given an opportunity to respond to the complaint. She provided a response.
[8] On July 8, 2021, the Integrity Commissioner reported to Council that the Applicant had breached the Code of Conduct by using abusive language and tone toward the CAO, on two occasions. The first was during an email exchange with the CAO in September 2020 in which she sought information about the resignation of a senior member of Township staff, and the second occurred during her questions of the CAO about certain expenditures at a Township Council meeting on June 9, 2020.
[9] Subsection 223.4(5) of the Municipal Act sets out the role of the municipal council after receipt of a report of the Integrity Commissioner:
The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct:
A reprimand.
Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days.
[10] On August 10, 2021, Township Council voted to accept the Integrity Commissioner’s findings of breaches of the Code. It accepted the recommended sanction of a suspension of remuneration for 45 days. However, Council modified the recommendation of the Integrity Commissioner to require her to send emails to the CAO through the Mayor for nine months. Township Council required that the Applicant not be permitted to email the CAO or staff directly for 14.5 months and required her email communications to be delivered via the Mayor.
PART III ISSUES ON THE APPLICATION
[11] The issues on the application are:
a. Did the Integrity Commissioner reasonably conclude that the CAO had standing to file a complaint?
b. Were the Integrity Commissioner’s findings of breaches of the Code reasonable?
c. Did Council demonstrate a reasonable apprehension of bias, and/or a “closed mind”?
d. Did Council fail to provide the Applicant with procedural fairness?
e. Was the corrective action imposed by Council, unreasonable or ultra vires its powers under the Municipal Act?
PART IV STANDARD OF REVIEW
[12] The standard of review for the findings of the Integrity Commissioner is one of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; [2019] 4 S.C.R. 654 at paras. 11, 16, 143; DiBiase v. Vaughan (City), 2016 ONSC 5620, at para. 23; Kroetsch v. Integrity Commissioner for the City of Hamilton, 2021 ONSC 7982, at para. 30; Chiarelli v. Ottawa (City of), 2021 ONSC 8256, at para. 18.
[13] Issues of procedural fairness are not subject to a reasonableness standard but are measured against several factors and the context in which the decision is made: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817.
PART V – ANALYSIS OF THE ISSUES
Did the Integrity Commissioner reasonably conclude that the CAO had standing to file a complaint?
[14] The Applicant objected to the standing of the CAO to file a complaint under the Code of Conduct. Her letter of response to the Integrity Commissioner submitted that s. 223.4(1) of the Municipal Act, 2001, grants jurisdiction to a municipal Integrity Commissioner to inquire because of a request “made by council, a member of council or a member of the public about whether a member of council or of a local board has contravened the code of conduct applicable to the member.”
[15] The Integrity Commissioner determined that the CAO had standing to bring a complaint and communicated that finding to the complainant. In his letter of January 19, 2021 the Integrity Commissioner pointed out that the Code of Conduct’s complaint process permits “Members of council, employees or members of the public” with reasonable grounds to believe that a member of council has contravened the Code to submit their complaint by filing it with the Clerk: Code of Conduct, Complaint Process, Schedule A to By-Law 15-2019 at page 10.
[16] The Applicant argues that the Municipal Act expressly excludes employees from being potential complainants to a municipal Integrity Commissioner and that the Integrity Commissioner’s acceptance of jurisdiction over a complaint from an employee was unreasonable. The essence of this argument is that the legislature, in providing three possible categories of complainant: council, a member of council or a member of the public, was clearly excluding municipal employees as possible complainants for breaches of a municipal Code of Conduct.
[17] I disagree. The Integrity Commissioner’s interpretation of s. 223.4(1) is reasonable. A plain reading of the Municipal Act, and the provisions relevant to conduct, permit all members of the public to seek an inquiry from a municipal Integrity Commissioner. In its ordinary, grammatical sense, the phrase “members of the public” includes the employees of a municipality. That provision does not exclude employees of a municipality.
[18] Part V.1 of the Municipal Act, is entitled “Accountability and Transparency.” This Part requires that municipalities establish codes of conduct for members of council and their local boards. Further, every municipality is required to either appoint an independent integrity commissioner to inquire into the “application of the code of conduct for members of council” and provide “educational information to members of council […] about the municipality’s code of conduct”, or to arrange for those responsibilities to be carried out by the integrity commissioner for another municipality.
[19] Section 1 of O. Reg. 55/18, which prescribes the contents of a municipality’s code of conduct, specifically states that a code of conduct is required to include (among other provisions): “[r]espectful conduct, including conduct toward officers and employees of the municipality or the local board, as the case may be.”
[20] The framework for integrity thus anticipates the education of municipal councillors, and enforcement of minimum standards, by way of municipal Codes of Conduct, which are administered by an Integrity Commissioner. Respectful treatment of staff is a legislative expectation for inclusion in this accountability framework. It would run counter to the legislative policy of holding elected members of council accountable for their actions to prevent municipal employees, as an affected group, from accessing the complaint resolution and enforcement mechanisms created in every Ontario municipality, to encourage the maintenance of those standards.
[21] The Township Code of Conduct Complaint Process did not present any impediment to a staff complaint: It lists those who may complain and includes members of staff of the municipality.
[22] The Integrity Commission reasonably concluded that the CAO had standing under the Municipal Act to make a complaint to him.
Were the Integrity Commissioner’s findings reasonable?
[23] The Applicant submits that the Integrity Commissioner unreasonably concluded that she breached the Code of Conduct on two occasions in 2020. She argues that part of her role as a member of Township Council is to ask questions and state her views, and that Codes of Conduct should not be employed to respond to “hurt feelings” on the part of staff. She submits that the two incidents complained of did not amount to disrespectful conduct or “harassment” of the CAO.
[24] As required by O. Reg. 55/18 to the Municipal Act, the Township of North Stormont passed a Code of Conduct which includes expectations for members of Township Council to treat employees with respect.
[25] The relevant provisions in the Code of Conduct read:
INTERPERSONAL BEHAVIOUR
- Relationship with Staff
Members of Council shall be respectful of the fact that staff work for the Township and make recommendations based on their professional and technical expertise as well as from a corporate perspective. Staff serve Council as a whole and no Member of Council may direct staff absent of a resolution of Council. Council approves policy and the Chief Administrative Officer directs staff to ensure the direction of Council is achieved.
Members of Council shall respect the role of staff to provide advice based on political neutrality and objectivity and shall not impose any undue influence on staff.
Many staff members are bound through professional associations to a code of ethics in the delivery of their services, and Council Members shall respect that staff provide their reports, observations and recommendations objectively and in the best interests of the Township. Members of Council shall not:
i) Maliciously or falsely injure the professional or ethical reputation of staff;
ii) Compel staff to engage in partisan political activities or be subjected to threats of discrimination for refusing to engage in such activities; and
iii) Use their authority or influence for the purpose of intimidating, threatening, coercing, commanding, or influencing any staff member with the intent of interfering with staff duties.
[26] In the Report, the Integrity Commissioner found that the Applicant breached the Interpersonal Behaviour provisions on two occasions:
a. On June 9, 2020, at a council meeting, using “intemperate language” to express her dissatisfaction with the CAO over financial disclosure; and
b. Sending emails to the CAO in September 2020, in which she wrote that it was “irresponsible and completely unacceptable” and “completely irresponsible and unacceptable” that Council had not been made aware of the Township’s Fire Prevention Officer’s resignation.
[27] The Integrity Commissioner concluded that the content of the September 2020 emails amounted to the Applicant insisting on receiving information about a staff matter that the CAO was not obliged to provide. The tone and content of the emails was abusive, and the Applicant should not have used the word “irresponsible” to characterize the CAO’s conduct in the matter. He noted that this reflected a continuation of a pattern of conduct that had led to a sanction imposed after an earlier investigation.
[28] In relation to the June 9, 2020 portion of the complaint, the transcript of the meeting shows that the relevant exchange began with the Applicant expressing concern about the failure to deliver quarterly financial statements and asking the CAO about the additional costs of public consultations on the Township’s strategic plan. The CAO answered the Applicant’s question by noting that the Applicant had requested a third public meeting, which added to the cost. The Applicant responded:
COUNCILLOR VILLENEUVE: Okay, I know you’re pointing it at me, Craig, but the fact of the matter is Council is supposed to pass a motion if there’s any change said with any numbers or figures or any financial approval. There was no motion that was put forward for – at a cost of $12,000. That’s the point I’m making. Whether I requested an extra meeting or not is irrelevant. It’s the fact of the motion that was put forward.
[29] The Applicant moved to another line item after this exchange. The Mayor suggested that the Applicant put additional questions into an email for follow up. The Applicant responded to this:
COUNCILLOR VILLENEUVE: Well, again, Mr. Mayor, this is not being open and accountable to the rate payers, to the residents. Like, I just don’t understand the secrecy behind all this. It just doesn’t make any sense to me. Very frustrating, Mr. Mayor, very frustrating.
MR. CALDER: Through the Chair, Councillor Villeneuve, this was not done on purpose. The Director of Finance had a family emergency that just occurred late in the afternoon. She would – she was attending – the Director of Finance had every intention of participating, councillor, so there’s no – there’s no ability or suggestion that we’re trying to hide anything.
[30] In the Report, the Integrity Commissioner concluded that the June 9, 2020 exchange about financial disclosure during the Council meeting was “intemperate” and that no member of Council should publicly berate staff.
[31] The Integrity Commissioner concluded the Report with a finding that the communications in June and September 2020 were inappropriate and “harassing” in nature. The Integrity Commissioner found that the Applicant’s remarks breached the Code of Conduct.
[32] The Applicant submits that the Integrity Commissioner did not specify which of the sections of the Code within the Interpersonal Behaviour sections, she violated. Given the role of reasons in justifying a decision, she submits that the Report falls short of explaining the basis for the decision and as such it is an unreasonable decision.
[33] The Applicant also submits that s. 1 of the Interpersonal Behaviour part clearly does not apply because this was not a Human Rights Code complaint. The conduct complained of by the CAO could not possibly, reasonably amount to “harassment.” Further, the Integrity Commissioner did not explain how the Applicant’s conduct violated s. 4: in her submission, using the word “irresponsible” does not reasonably amount to a violation of s. 4 which prohibits members from using “their authority or influence for the purpose of intimidating, threatening, coercing, commanding, or influencing any staff member with the intent of interfering with staff duties.”
[34] I disagree. The email exchange of September 2020 could reasonably be seen to be attacking the professionalism of the CAO by characterizing his conduct as “irresponsible.” Given that the CAO does not report to individual members of Council, nor is the CAO employed by individual members of Council (which is made clear in the Interpersonal Relations part of the Code of Conduct), there was no obligation on the CAO to report to the Applicant as to the employment status of the Fire Prevention Officer. The Code of Conduct requires that Members respect the roles of staff, and not intimidate, threaten, coerce, command, or influence any staff with the intent of interfering with staff duties. The provisions for respectful interpersonal behaviour in this Part of the Code reference the Human Rights Code, but go farther in their expectations for Members of Council.
[35] It was reasonable for the Integrity Commissioner to characterize this exchange as “not appropriate” and “abusive.” Further, it was reasonable for the Integrity Commissioner to conclude that “the context and the tone of the communications illustrates evidence of an intent to force the CAO to provide disclosure to Council that was deemed by the Member to be appropriate.” The Integrity Commissioner provided an explanation and adverted to the part of the Code under which he based the finding in relation to the email exchange.
[36] Similarly, the exchange at the Township Council meeting of June 9, 2020 involved the Applicant questioning a cost overrun, and when the immediate answer to her question of whether it had been the subject of a prior report was not available, she characterized the staff actions as not being transparent and accountable, and characterized the issue as one of “secrecy.”
[37] The Integrity Commissioner found that the Applicant had publicly berated staff when this was not her role as an individual member of Township Council. The Integrity Commissioner found that these were not appropriate comments.
[38] This finding was reasonable. This Part of the Code of Conduct serves as a reminder to publicly elected officials that municipal employees “serve Council as a whole and no Member of Council may direct staff absent of a resolution of Council. Council approves policy and the Chief Administrative Officer directs staff to ensure the direction of Council is achieved.” The relative power imbalance between staff, who do not have a voice at Council, and elected Members, who do, mean that their respective roles and responsibilities must be acknowledged and respected. The Integrity Commissioner’s finding was responsive to that expectation contained in the Township Code of Conduct.
[39] The Integrity Commissioner’s finding that there was a breach of the Code was reasonable. The Applicant also argued that the recommendations respecting sanction should be overturned on the basis they were unreasonable. In my view, the recommendations are not the exercise of a statutory power of decision, and they are not subject to judicial review. It is the Council’s role to determine sanctions or remedial measures. Their decision is subject to judicial review.
Did Council demonstrate a reasonable apprehension of bias, and/or a “closed mind”?
[40] The Applicant submits that members of Council demonstrated a reasonable apprehension of bias because they were not “open to persuasion” and approached the task of imposing sanctions against her with closed minds. She submits that the publication of a draft resolution adopting the recommendations of the Integrity Commissioner was evidence that Township Council had made up its mind before she was able to speak to the question of the recommended sanction and action.
[41] In addition, the Applicant submits that the interruptions of other members during her statement, the comment from the Mayor that she should “wrap this up as quickly as possible” near the end of her statement, and the fact that harsher sanctions were discussed before she had an opportunity to make her full statement were additional evidence of a reasonable apprehension of bias on the part of Council.
[42] The Township submits that it is common for draft Resolutions to be published in advance of meetings to guide debate and focus the issues. This was not published solely in the case of the Report. Further, the Report was a public document, and the recommendations were part of the Council agenda.
[43] There is no dispute that the test for bias is an objective one: “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?” See Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 20.
[44] I agree that the publication of a draft resolution, during ordinary business of the Township, which is subject to change, is not evidence of bias on the part of the Township Council. Objectively, knowing the context and practice of the Township, a realistic, practical and informed person would not conclude that this amounts to a closed mind, or that this necessarily meant the resolution would be adopted in that format. As it happens, the draft resolution was not adopted in this case, although not in the manner sought by the Applicant.
[45] The questions put to the Integrity Commissioner about varying the recommendations took place before the Applicant’s statement and the vote. This alerted her to the possibility that some members were considering varying the recommended measures by the Integrity Commissioner. The nature of those questions and their timing do not, in my view, amount to a reasonable apprehension of bias in these circumstances.
[46] The Applicant spoke to the Report and to sanction before Township Council made its decision. Her right to do so is an exception to the usual rule that members of Council are not permitted to speak to or influence a vote in a matter in which they have a pecuniary interest. Section 5(2.1) of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, s. 5(2.1)(1) permitted the Applicant to make submissions on and/or attempt to influence the voting “in respect of the matter”, that is the Report and the recommendation to Council that they suspend her remuneration and impose the recommended corrective action.
[47] The interruptions during the Applicant’s statement were made to clarify the substance of the statement: the Applicant went beyond speaking to sanction and raised anew some of her objections to the Integrity Commissioner’s finding of jurisdiction and the breach of the Code. The Mayor responded to those requests for clarification and allowed the Applicant to finish.
[48] Interruptions in proceedings do not necessarily constitute a breach of procedural fairness. They may be appropriate as efforts to control a process and to ensure that speakers focus on the matter at issue: see El Sayed v. Ottawa Community Housing Corporation,2019 ONSC 3703, at paras. 9-10 ; Murray v. Alatishe,2019 ONCA 596, at para 16.
[49] I am satisfied that the Applicant was afforded a reasonable opportunity to address Council, and to object to the proposed response to the findings of breach, including pointing out an outcome from another municipality in the Region which had not imposed sanctions of this nature in a comparable instance.
[50] I note that given the importance of the matter to the Applicant, it would have been preferable for the Mayor to have refrained from asking the Applicant to “wrap this up as quickly as possible.” The process can be controlled in several ways, including ensuring that a member of Council has completed their submissions while ensuring there is not undue repetition or submissions that were not “in respect of the matter.” Language such as “we have your point, is there anything further?” or “can you relate your statement to the appropriateness of the sanctions recommended?” would assist in guiding a member facing sanctions from their colleagues on council.
Was the corrective action imposed by Council, unreasonable or ultra vires its powers under the Municipal Act?
[51] Where an integrity commissioner reports to a municipality that a member of council has contravened the code of conduct, s. 223.4(5) of the Municipal Act provides that the municipality may impose one of two penalties:
A reprimand, or
Suspension of the remuneration paid to the member in respect of his or her services as a member of council …for a period of up to 90 days.
[52] In addition to these penalties, a municipal council may require remedial actions in addition to these penalties, to respond to the conduct underlying the complaint and provide redress for a complaint: see Dhillon v. The Corporation of the City of Brampton, 2021 ONSC 4165 at para. 67; Magder v. Ford, 2013 ONSC 263 (Div. Ct) at para. 52.
[53] Here, based on a prior breach of the Code by the Applicant for “disrespectful and confrontational” conduct toward the CAO, the Integrity Commissioner recommended that Council impose a greater sanction than had been previously imposed. The Integrity Commissioner recommended that the Applicant receive a 45-day suspension of her remuneration and a nine-month prohibition on the Applicant communicating directly with the CAO by email. The Integrity Commissioner recommended to Council that the Applicant be permitted to communicate with the CAO only by email through the Mayor and explained that this would serve to act as a “buffer.” She would also be able to communicate directly with the CAO during Council meetings on the condition that those communications remain respectful.
[54] The prior sanction adopted by Council on January 14, 2020 was a 30-day suspension of her remuneration and a six month limitation, with certain exceptions, on the Applicant’s ability to communicate with staff and members of Council by email. That sanction was never the subject of judicial review.
[55] In the present case, the Council imposed the recommended penalty of suspending the Applicant’s remuneration for 45 days. However, it varied the corrective action recommended by the Integrity Commissioner by requiring the Applicant to only communicate with the CAO or with any member of staff through the Mayor, until the end of her term, which was approximately 14.5 months.
[56] The Applicant submits that Township Council thus imposed a sanction which was not available to it under the Municipal Act.
[57] In Dhillon, the Divisional Court quashed a resolution which required the member of Council to only communicate with members of the public using a City email address and “no other form of communication.” The Divisional Court found that this was an overly broad restriction on the Councillor’s ability to interact with the public. This action failed to balance his duties and the needs of his constituents with the remedial purposes behind Council’s resolution.
[58] In Altmann v. The Corporation of the Town of Whitchurch-Stouffville, 2018 ONSC 5306, Sutherland J. quashed a by-law which required the Mayor to communicate with staff solely by email, that he return his keys and access card to the municipal offices, and that he not be given access to municipal facilities, except the Town Hall during business hours to attend at the front desk for the duration of the council’s term. Sutherland, J. found that these were not “remedial actions” but sanctions, imposed in response to the failure of the Mayor to apologize as Council had required after a prior finding of contravention of the Code of Conduct. They were not “other actions” aimed at remedying his failure to apologize or to mend his relationship with staff. Instead, they were intended to punish the Mayor, and thus, they were sanctions not provided for under the Municipal Act.
[59] I conclude that the intention of the remedial action proposed by the Integrity Commissioner was a response to the problem of disrespectful email communications to the CAO. It was a reasonable limit, for a proportionally longer period than a similar restriction imposed earlier for similar conduct. It did not prevent the Applicant from carrying out her role but placed a buffer between her emails and the CAO, via the Mayor. As this Court noted in Dhillon at para. 87: a recommended corrective action must be “permitted in law and [be] designed to ensure that the inappropriate behaviour or activity does not continue.” I find that this can fairly describe the remedial action proposed by the Integrity Commissioner here to Township Council.
[60] However, the Township Council opted to vary the recommendation for the remedial action proposed by the Integrity Commissioner, and in doing so, I find that it acted unreasonably. Township Council imposed restrictions on the Applicant’s ability to email any member of staff, although the problematic email related to one exchange, and only with the CAO. It was thus overbroad, and not connected to the conduct under consideration by Township Council on this occasion. In making it broader than necessary, and in adding an additional 5.5 months in duration to the email limitation, this made the impact significantly longer than that recommended, or the similar restrictions imposed in January of 2020.
[61] I agree with the Applicant’s submission: “While a request that all written communications with the CAO be done through a third party could be construed as responding to the behaviour that was found to have breached the Code of Conduct (supposed inappropriate written communication with the CAO), the same cannot be said of a communication blackout with all members of the Township’s staff.”
[62] Accordingly, the Council’s decision to impose the email communication restriction was unreasonable and punitive, and it should be set aside.
PART VI – CONCLUSION AND COSTS
[63] The application for judicial review is granted in part, in that the Township of North Stormont Resolution 232-2021 paragraphs 1 and 2 as amended by 233-2021 are quashed.
[64] The parties agreed that the unsuccessful party would pay $10,000 in costs to the successful party. The Applicant is responsible to pay costs in the amount of $10,000 to the Integrity Commissioner. As the Applicant and the Township had mixed success, as between them there will be no order as to costs.
Leiper J.
I agree. ___________________________
Swinton J.
J.A. RAMSAY J. (dissenting in part)
[65] I would have quashed resolution 2021-232 (as amended by 2021-233) in its entirety and quashed the Integrity Commissioner’s findings. (The parties agreed that in that event the Applicant would have been awarded $10,000 costs from each of the other two respondents.)
[66] I do not think that any of the conduct found to have taken place by the Integrity Commissioner could have amounted to a failure to “treat every other person with dignity, understanding and respect for the right to an environment that is safe and free from harassment” or use of authority or influence “for the purpose of intimidating, threatening, coercing, commanding, or influencing any staff member with the intent of interfering with staff duties.” In my view the findings of the Commissioner were unreasonable in that they are untenable in light of the factual constraints that bore on them. In other words, they cannot be not justified on the facts found by the Commissioner. See Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, paragraph 48.
[67] In the June 2020 council meeting, the Applicant asked how an expense was paid that was not authorized by council. When the CAO deflected by making the irrelevant point that the Applicant had asked for an additional consultation, she persisted. These were legitimate questions. The remark about secrecy was made when no answer was given to a legitimate question about finances. When it was explained that the staff member who had the relevant knowledge was absent from the meeting because of a family emergency, the Applicant desisted. The Applicant also asked about the delay in providing financial statements, which was another legitimate topic of inquiry. There was nothing abusive about this.
[68] In the September 2020 email chain the applicant complained that the CAO had not notified council of the letter of resignation that had been given by the fire prevention officer. She wrote that the omission to notify council was unacceptable and irresponsible. She said it was insulting and embarrassing to hear about the resignation on the streets of the township. Nothing in her comments was directive. I accept that the CAO was correct that he was not obliged to notify council in the circumstances, but to characterize the Applicant’s comments as abusive or disrespectful is to apply an impossibly sensitive standard.
[69] Elected councillors should not be inhibited in the exercise of their function by the potential for an integrity investigation based on criticism in council meetings of the acts of staff or undue sensitivity to the feelings of the chief administrative officer. Councillors owe a duty to the electors to concern themselves with the due administration of the municipality.
J.A. Ramsay J.
Released: November 24, 2022
CITATION: Villeneuve v. North Stormont (Township), 2022 ONSC 6551
DIVISIONAL COURT FILE NO.: DC-21-2664
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, J.A. Ramsay and Leiper JJ.
BETWEEN:
ROXANNE VILLENEUVE
Applicant
– and –
THE CORPORATION OF THE TOWNSHIP OF NORTH STORMONT and THE INTEGRITY COMMISSIONER FOR THE TOWNSHIP OF NORTH STORMONT
Respondents
REASONS FOR DECISION
Leiper J. (Swinton J. concurring);
J.A. Ramsay J. (dissenting in part)
Released: November 24, 2022