Court File and Parties

CITATION: Jubenville v. Municipality of Chatham-Kent et al., 2024 ONSC 4839

COURT FILE NO.: DC-23-00000040-0000

DATE: 2024/09/03

SUPERIOR COURT OF JUSTICE – ONTARIO – (DIVISIONAL COURT)

RE: RHONDA JUBENVILLE, Applicant

AND:

MUNICIPALITY OF CHATHAM-KENT and CHATHAM-KENT INTEGRITY COMMISSIONER (MARY ELLEN BENCH), Respondents

BEFORE: Justice I.F. Leach

COUNSEL: Michael Alexander, for the Applicant Amy Block, for the Respondents

HEARD: March 20, 2024

ENDORSEMENT

[1] Before me, within the broader context of this proceeding by the applicant seeking judicial review of decisions made by and/or on the recommendation of the respondents in relation to her conduct as a City Council Member, is a motion by the applicant seeking an order excluding specified material from the record of proceedings filed by the respondents.

Further background

[2] The material filed by the parties for my consideration, in support of their respective positions on the motion, extended to several thousand pages. I therefore note at the outset that these reasons accordingly will not attempt to address all aspects of the parties’ motion material, written submissions, and/or oral submissions in exhaustive detail.

[3] However, by way of further background:

a. The applicant is an elected member of the City Council for the Municipality of Chatham-Kent, having been elected, on October 24, 2022, to serve a four-year term in that regard.

b. The first named respondent is that corporate municipality; i.e., the Municipality of Chatham-Kent, which is a corporate body with the powers and duties conferred upon it via the Municipal Act, 2001, S.O. 2001, c.25. Those powers and duties are exercised, in part, by a City Council composed of members who, like the applicant, are elected to serve four-year terms pursuant to other provisions of the Municipal Act, 2001, supra. For present purposes, I particularly note the following in that regard:

i. Pursuant to s.223.2(1) of the Municipal Act, 2001, supra, the municipality is obliged to establish “codes of conduct” for members of the council of the municipality and its local boards.

ii. Pursuant to s.223.3(1) of the Municipal Act, 2001, supra, the municipality is authorized to appoint an “Integrity Commissioner” who reports to council, and who is responsible for performing, “in an independent manner”, functions assigned by the municipality with respect to matters that may include the following, pursuant to sub-paragraphs 223.3(1)1, 2, 3, 4 and 5 of the Municipal Act, 2001, supra:

1. the application of the code of conduct for members of council;

2. the application of any procedures, rules and policies of the municipality governing the ethical behaviour of members of council;

3. the application of sections 5, 5.1, 5.2 and 5.3 of the Municipal Conflict of Interest Act, R.S.O. 1990, c.M.50, to members of council;

4. requests from members of council for advice respecting their obligations under the code of conduct applicable to a member; and

5. requests from members of council for advice respecting their obligations under a procedure, rule or policy of the municipality governing the ethical behaviour of members.

c. The second named respondent is a practising Ontario lawyer who, at the times relevant to the matters giving rise to the underlying application herein, was appointed to serve and served as the “Integrity Commissioner” for the respondent municipality. For present purposes, I particularly note the following in that regard:

i. pursuant to s.223.4(1) of the Municipal Act, 2001, supra, an Integrity Commissioner appointed by a municipality has authority to conduct an inquiry in respect of a request made by council, a member of council or a member of the public about whether a member of council has contravened the code of conduct applicable to the member; and

ii. pursuant to s.223.4(5) of the Municipal Act, 2001, supra, if an Integrity Commissioner reports to the municipality that, in his or her opinion, a member of council has contravened a municipality’s code of conduct, the municipality may impose either of the following penalties on a member of council:

1. a reprimand; or

2. 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 up to 90 days.

d. Pursuant to its statutory obligation described above, the respondent municipality established a code of conduct which came into effect on or about August 12, 2019. In that regard, I note the following in particular:

i. section 10 of that code of conduct prohibits members of council from engaging in the “improper use of influence”; and

ii. section 15 of that code of conduct imposes a duty on council members to refrain from “discreditable conduct”, and to “treat members of the public, one another and staff in a civilized way and without abuse, bullying or intimidation, and to ensure that their work environment is free from discrimination and harassment”.

e. In April of 2023, the applicant made a motion to the respondent municipality’s council, for council’s consideration; i.e., a motion that proposed limiting the type of flags that could be flown at the municipality’s properties to the Canadian flag, the Ontario flag, and the flag of the municipality. In that regard:

i. The motion was brought by the applicant after the mayor of the municipality denied a request by the “Life in Motion” organization, (a group said to promote “pro life” or “anti-abortion” views), to fly a particular flag other than the three aforesaid flags at centres of the municipality on Mother’s Day of that year; i.e., Sunday, May 14, 2023.

ii. The applicant’s motion, if passed, effectively would have precluded the municipality from flying, at its municipal centres, flags of other groups or organizations promoting other views; e.g., the rainbow-coloured “Pride” flag, which serves as a symbol of the “LBGTQ+” community.

iii. In the result, the applicant’s motion apparently generated significant public interest and controversy, including responses by members of the public living within the respondent municipality that were characterized as “polarizing”.

iv. The applicant’s motion was unsuccessful; i.e., insofar as the motion did not pass.

f. In the period from April to June of 2023, the respondent Integrity Commissioner received numerous complaints about related social media posts and behaviour of the applicant; complaints which prompted the Integrity Commissioner, pursuant to and in accordance with the powers conferred upon her by virtue of her appointment and the provisions of the Municipal Act 2001, supra, noted above, to conduct an inquiry into whether the applicant had contravened the respondent municipality’s code of conduct applicable to its council members. In that regard:

i. Over the course of that inquiry, the Integrity Commissioner and the applicant, on numerous occasions, engaged in ongoing verbal and written communications; e.g., by way of exchanged emails and text messages. Such communications included discussion of various social media postings and re-postings by the applicant, (including the applicant’s re-posting of local media articles), related to the applicant’s motion and the controversy that ensued from the applicant’s bringing of that motion.

ii. The communications also included discussion of acceptable and unacceptable conduct by members of the municipality’s council.

iii. In the result, the applicant voluntarily removed some of her related social media postings, but declined to remove others.

g. Prior to delivering any report to the municipality outlining the results of her inquiry, her opinion as to whether the applicant had contravened the municipality’s code of conduct for its members of council, and her recommendation as to any penalty the municipality might choose to impose if the applicant was found to have contravened that code of conduct, the Integrity Commissioner provided the applicant with draft facts together with various social media postings the Integrity Commissioner contemplated relying upon in arriving at the conclusions she would set forth in her intended report. The applicant was invited to provide her comments in that regard, was afforded additional time to do so at the request of her legal counsel, and provided the Integrity Commissioner with submissions in that regard by way of a letter dated June 26, 2023.

h. On July 17, 2023, the Integrity Commissioner released her report to the municipality; i.e., a report entitled “Report Following Investigation of Complaints Respecting Social Media Posts and Conduct of Councillor Jubenville”. In that regard:

i. The report provided context for the commissioner’s decision, and included express reference to and reliance upon social media postings by the applicant, the Integrity Commissioner’s ongoing communications and discussions with the applicant, and various local media articles, including local media articles reposted by the applicant.

ii. The report indicated the Integrity Commissioner’s determination that the applicant’s conduct had contravened sections 10 and 15 of the respondent municipality’s code of conduct applicable to its members of council. Without limiting the generality of the foregoing, the Integrity Commissioner concluded that the applicant had used social media to call out and intimidate others, including a member of the public.

iii. Pursuant to an exercise of the discretion afforded to her by the Municipal Act, 2001, supra, and the respondent municipality’s code of conduct applicable to its council members, the Integrity Commissioner made efforts to ensure that certain names and facts would be kept confidential; e.g., to preserve the confidentiality of complainants, having regard to the inherent nature of the investigation alleging, inter alia, that the applicant had engaged in bullying on social media. Such efforts to preserve confidentiality included the Integrity Commissioner’s redaction of the applicant’s social media posts targeting a specific individual.

iv. The report included a recommendation that the municipality should address the applicant’s identified contraventions of the municipality’s code of conduct applicable to its council members by imposing, pursuant to s.223.4(5) of the Municipal Act, 2001, supra, a suspension of the remuneration paid to the applicant, in respect of her services as a member of council, for a period of 90 days; i.e., the maximum three-month suspension of pay penalty permitted by the legislation in relation to such matters.

i. On July 26, 2023, the report tendered by the Integrity Commissioner was posted publicly, pursuant to s.223.6(3) of the Municipal Act, 2001, supra; i.e., provisions which require the respondent municipality to ensure that reports received by the municipality from the Integrity Commissioner are made available to the public.

j. At a public meeting held on August 14, 2023, (in advance of which the respondent municipality’s council received legal advice from its Director of Legal Services, during a session closed to the public), the municipality’s council formally considered the report tendered by its Integrity Commissioner and, by a majority vote of 13 to 3, passed a resolution imposing the recommended three-month pay suspension penalty for the identified code of conduct contraventions by the applicant.

k. On September 28, 2023, the applicant commenced her application herein pursuant to sections 2 and 5 of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1, seeking judicial review and naming both the municipality and its Integrity Commissioner as respondents. In that regard:

i. The original notice of application filed by the applicant requested separate orders of certiorari to quash and set aside both:

1. the report of the Integrity Commissioner dated July 17, 2023, including the findings therein that the applicant had violated sections 10 and 15 of the municipality’s code of conduct applicable to its council members ; and

2. the decision of the respondent municipality’s council on August 14, 2023, imposing a corresponding penalty on the applicant, suspending payment of her councillor remuneration for a period of three months.

ii. The original notice of application filed by the applicant also sought substantial declaratory relief in relation to both the Integrity Commissioner’s report and the decision by the municipality’s council imposing the aforesaid three month pay suspension penalty on the applicant. In particular:

1. In relation to the Integrity Commissioner’s report, the applicant’s original notice of application sought no less than 14 separate declarations, including declarations finding:

a. that the commissioner’s application of the confidentiality provisions had violated the guiding purpose or purposes of the municipality’s relevant code of conduct, contrary to applicable rules of statutory interpretation;

b. that the commissioner’s application of the confidentiality provisions had created a reasonable apprehension of bias in various ways, including:

i. defeating the relevant code of conduct’s requirement that the commissioner have reasonable and probable grounds to conduct an investigation; and

ii. defeating the relevant code of conduct’s requirement that the commissioner reach a decision on a balance of probabilities;

c. that the commissioner’s application of the confidentiality provisions also:

i. had violated principles of fairness and the right of reply extended to the applicant by the relevant code of conduct;

ii. had violated principles of fairness and entailed an abuse of discretion; and

iii. had committed palpable and overriding errors of fact in her reasoning;

d. that the commissioner’s decision failed to embody required qualities of “transparency, intelligibility and justification”;

e. that the commissioner, in her application of the “improper use of influence” provisions of the relevant code of conduct, violated appliable rules of statutory interpretation and created a reasonable apprehension of bias;

f. that a reasonable apprehension of bias was created by the commissioner simultaneously being assigned investigative, prosecutorial and judicial or quasi-judicial functions by the relevant provisions of the Municipal Act, 2001, supra, and the relevant code of conduct;

g. that the commissioner’s application of the relevant code of conduct’s confidentiality provisions, violation of the rules of statutory interpretation, and making of unsupported statements in her decision combined to violate the applicant’s right to freedom of expression as guaranteed by s.2(b) of the Canadian Charter of Rights and Freedoms, (“the Charter”), in turn entitling the applicant to a remedy for the breach of that right pursuant to section 24 of the Charter;

h. that the commissioner’s inclusion in her report of an allegation that the applicant’s legal counsel had engaged in bullying and intimidating conduct also gave rise to a reasonable apprehension of bias; and

i. that the commissioner, contrary the relevant code of conduct and principles of fairness, also created a reasonable apprehension of bias by permitting another member of council, who was also a complainant, (i.e., insofar as that other council member had complained about the applicant’s conduct), to attend the council meeting at which the commissioner’s report was considered and to vote on imposition of a penalty on the applicant.

2. In relation to the decision made by the municipality’s council, the applicant’s original notice of application sought a further four separate declarations, including declarations finding:

a. that the municipality’s council had violated the relevant code of conduct and created a reasonable apprehension of bias by allowing another council member who was also a complainant, (i.e., insofar as that other council member had complained about the applicant’s conduct), to attend the council meeting at which the commissioner’s report had been considered;

b. that the municipality’s council had violated rules of fairness and created a reasonable apprehension by also allowing that other council member and complainant to then vote on the motion to impose a penalty on the applicant;

c. that various members of the municipality’s council had violated rules of fairness, introduced bias into the penalty phase of the proceedings, and engaged in improper “guilt by association” reasoning by equating the applicant’s actions with the putative conduct of unnamed third parties; and

d. that the municipality’s council had violated rules of fairness and created a reasonable apprehension of bias by failing to give the applicant’s legal counsel a proportionate right of reply during the meeting at which council considered the commissioner’s report and decided to impose a penalty on the applicant.

l. On November 30, 2023, the respondents served and filed a Public Record of Proceedings, (as they were obliged to do pursuant to section 10 of the Judicial Review Procedure Act, supra),[^1] which included:

i. documents that were said to have been before the Integrity Commissioner during the course of her investigation, which previously had been disclosed to the applicant and/or were otherwise public, albeit consistent with the exercise the commissioner’s exercise of discretion to preserve the confidentiality of complainants and witnesses;

ii. communications between counsel for the applicant and the Integrity Commissioner and/or the Municipal Solicitor and City Clerk in the period leading up to the meeting of council on August 14, 2023; and

iii. documents that were said to have been before the respondent municipality’s council in the period leading up to its meeting on August 14, 2023, and in making its determination to impose a penalty on the applicant.

m. On the same day, (i.e., November 30, 2023), the respondents also delivered a Private Record of Proceedings, setting forth the minutes of the session of council that also was held on August 24, 2023, in a manner closed to the public, (i.e., the “closed session”), to receive legal advice provided to counsel by the Municipal Solicitor.[^2]

n. On December 15, 2023, the applicant informally took issue with the breadth of disclosure made by the respondents in their Public Record of Proceedings; i.e., communicating an objection in that regard via counsel.

o. The applicant thereafter formally amended her notice of application herein. The particular amendments altered the pleading in a number of ways, which included the following:

i. The formal request for an order of certiorari quashing and setting aside the Integrity Commissioner’s report effectively was removed; i.e., such that the only remaining request for such an order of certiorari related to the decision made by council on August 14, 2023, to impose a penalty on the applicant based on the commissioner’s report.

ii. The numerous complaints about the manner in which the Integrity Commissioner had arrived at her decision and produced her report, previously set forth in the second paragraph of the applicant’s original notice of application as requests for declaratory relief in that regard, in support of the applicant’s original request for an order of certiorari quashing and setting aside the commissioner’s report, essentially were left intact in the applicant’s amended pleading. However, by wordsmithing altering the first paragraph of the notice, those complaints and requests for declaratory relief were recast as raising suggested flaws and failings offered in support of the applicant’s request for an order of certiorari in relation to the decision made by council to impose a penalty on the applicant; i.e., insofar as council was said to have adopted the allegedly flawed report and used it as the flawed basis for making its decision regarding imposition of a penalty on the applicant. In that regard, I note in particular that the applicant formally continues to ask for declaratory relief in relation to the same flaws and failings alleged in relation to the manner in which the Integrity Commissioner arrived at her decision and produced her report. Again, however, she now asks that the declarations sought in that regard be used as justifications for the applicant’s request for an order of certiorari quashing and setting aside the decision made by council to impose a penalty on the applicant.

iii. The requests for declaratory relief in relation to counsel’s decision to impose a penalty on the applicant, as set forth in the applicant’s original notice of application, also were left essentially intact. However, by further wordsmithing amending the content of paragraph 3 of the original notice of application and the preamble to paragraph 4 of the original notice of application, those requests for declaratory relief were recast as further reasons for granting an order of certiorari quashing and setting aside the decision of council to impose a penalty on the applicant.

iv. In short, the applicant seeks precisely the same declaratory relief in her amended notice of application, (including declarations that the Integrity Commissioner arrived at her decision and produced her report via the flaws and failings suggested by the applicant, which I outlined in detail earlier), albeit with all of those requests for declaratory relief now recast as considerations to support the applicant’s sole remaining claim for an order of certiorari; i.e., the request for an order quashing and setting aside council’s decision, (made in part by relying on the Commissioner’s allegedly flawed decision and report), to impose a penalty on the applicant. In other words, the applicant effectively now asserts that she is no longer challenging the propriety of the Integrity Commissioner’s report per se, but only insofar as the report was adopted and relied upon by the respondent municipality’s council in making its decision to impose a penalty on the applicant.

p. On January 19, 2024, the applicant then formally commenced the motion now before me, seeking an order excluding specified material from the Public Record of Proceedings filed by the respondents, prior to the requested judicial review hearing at which the record filed by the respondents will be introduced as evidence. In that regard:

i. The specifics of the material the applicant seeks to exclude from that record are particularized at length in paragraph 8 of the applicant’s notice of motion herein, which speaks for itself, and which I will not replicate here.

ii. For present purposes, I agree with the respondents that the exclusions sought by the applicant may be categorized generally as:

1. communications exchanged between the applicant and the Integrity Commissioner referred to expressly in the commissioner’s report and/or in her discussions with the applicant during the course of the commissioner’s investigation, including communications regarding the commissioner providing the applicant with draft facts and copies of social media postings, and communications addressed in the commissioner’s report;[^3]

2. news media reports, (in the form of articles and broadcasts), referenced in the Integrity Commissioner’s report, and/or in communications between the applicant and the commissioner, which the applicant had re-posted; and

3. communications with council in the period leading up to council’s consideration of the Integrity Commissioner’s report on August 14, 2023, and a media report from the same period.

[4] With the above background in mind, I turn next to a broad outline of the parties’ respective positions in relation to the applicant’s motion.

Party positions

[5] The parties conveyed their respective positions at length via the written and oral submissions of counsel, and I will not attempt to replicate those submission in their entirety here. However, by way of a broad summary, and at the risk of over-simplification:

a. The applicant characterizes her motion as one seeking to “clarify” the content of the respondents’ record prior to the requested judicial reviewing hearing in order to avoid unnecessary complications and expense, an inordinately lengthy hearing, and/or the “primary legal issues to be addressed” being “overshadowed” by “collateral issues”, through the removal of material now said to be irrelevant and extraneous to the issues to be decided. In particular:

i. It was submitted that the application’s focus is now on the decision made by the respondent municipality’s council, which adopted and relied upon the Integrity Commissioner’s report in imposing a penalty on the applicant.

ii. Even though the material the applicant seeks to exclude admittedly may have been before the Integrity Commissioner at some during the course of her investigation, and/or provides background information that assists in understanding the decision and recommendation made by the commissioner in her report, it was said that, insofar as the material may not have been expressly cited in the report or attached to the report, and may not otherwise have been placed before council before or during the meeting at which council decided to accept the report and act on the commissioner’s penalty recommendation included therein, it was not material relied upon by council in reaching its decision to vote in favour of imposing the relevant remuneration suspension penalty on the applicant.

iii. It was said that, in relation to proceedings under the Judicial Review Procedure Act, supra, a “record” is created only when an administrative body exercises a “statutory power of decision as defined by section 1 of that legislation, (i.e., a “power or right conferred by or under a statute to make a decision deciding or prescribing … the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or … the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not”), and that the Integrity Commissioner exercised no such statutory power of decision insofar as she only made a recommendation to the respondent municipality’s council, which had sole responsibility for making the ultimate decision as to whether a penalty should be imposed on the applicant and what that penalty should be. In other words, it was said that only council exercised a true statutory power of decision in the underlying circumstances, and that the “record” related to the making of that statutory power of decision correspondingly should be regarded as circumscribed by the report, (including its citations and attachments), which council adopted and relied upon in that regard.

iv. It was said that circumscribed nature of what council adopted and relied upon in that regard was supported by remarks made by the Integrity Commissioner in her report and in her oral submissions to council, which were said to have indicated that the commissioner had relied “solely” or “strictly” on the material attached to her report to arrive at her recommendation.

v. It was said that the court should reject, as unjustified or otherwise inappropriate in the circumstances, any express or implicit request by the respondents to “add” to that properly circumscribed and limited record on judicial review through suggested application of what are known in the vernacular as “the Keeprite principles”; i.e., principles outlined by our Court of Appeal in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.), discussing limited exceptions to the general rule, (adopted for various identified sound policy reasons), usually prohibiting addition of evidence to a record of underlying proceedings which are the subject of judicial review.

vi. More generally, it was said that the respondents should not be permitted, as a matter of policy and fundamental fairness, to shore up or bolster the underlying record after the fact; e.g., in an effort to justify a decision with a weak evidentiary foundation, “cure any defects” in that decision, and/or “anticipate and counter” arguments the applicant intends to make in that regard. It was emphasized that such an approach essentially usurps the fact-finding role of the administrative decision-maker whose decision is under judicial review; e.g., by essentially converting the review process to a re-hearing of the matter de novo. It also inappropriately would give “the state” a “second chance” to prove that its decision was justified, which would subvert and undermine what was said to be the fundamental premise of administrative law; i.e., that citizens are naturally free, and subject to governmental authority only when it is established in accordance with principles of fairness.

b. The respondents contend that the applicant has not discharged her burden of demonstrating that any of the documents specifically identified and targeted by the applicant’s motion should be struck from the record of proceedings filed by the respondents. Without limiting the generality of the foregoing, the respondents note, emphasize and/or submit the following:

i. Suggestions that the material the applicant seeks to exclude were not referenced in the Integrity Commissioner’s report, and/or somehow were excluded from the underlying proceedings by the commissioner limiting the scope of the record via her report and/or her comments to council, are fundamentally inaccurate as a matter of fact.

ii. The suggestion that the Integrity Commissioner did not exercise a reviewable “statutory power of decision”, thereby precluding the filing of any record of proceedings in that regard, is fundamentally incorrect; i.e., insofar as the applicant’s submission ignores the legal reality that, while the commissioner may not have been empowered to make a decision regarding the penalty (if any) to be imposed on the applicant for contraventions of the respondent municipality’s relevant code of conduct, and that decision was entrusted by statute to the municipality’s council, the commissioner was the one empowered by statute to make the decision that the applicant had contravened that code of conduct, which was a legislated prerequisite to the exercise of the decision by the respondent municipality’s council to impose a penalty in that regard on the applicant.

iii. In this case, the applicant not only formally raises and relies upon the link between the Integrity Commissioner’s decision regarding contravention of the relevant code of conduct by the applicant, (reflected in the commissioner’s report), and the decision by the municipality’s council to impose a penalty on the applicant in that regard, (as reflected in the applicant’s emphasis that council adopted and relied upon the commissioner’s reported decision in arriving at its decision to impose the recommended penalty on the applicant), but continues to expressly target and question the Integrity Commissioner’s decision and corresponding report by the declaratory relief still being sought via the applicant’s amended notice of application.

iv. The respondents are not attempting to supplement the record by adding documents that did not form part of the underlying proceedings and/or which are otherwise inadmissible. Nor are they seeking to rely on a “Keeprite exception” to the rule generally excluding addition of evidence to a record of underlying proceedings which are the subject of judicial review. They instead seek to include material that did form part of the underlying proceedings, and which properly and fairly addresses the issues formally raised (and still being raised) by the applicant in her original notice of application and amended notice of application.

Analysis

[6] In my view, the applicant’s motion to exclude the material specified in her notice of motion from the record filed by the respondents should be dismissed, for reasons that include the following:

a. Clearly, defining the appropriate record for consideration by the Divisional Court, on a judicial review application, is a matter of great importance. As emphasized by this court in Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086 (Div.Ct.), at paragraphs 7-8, failure to define that appropriate record may encourage a “proliferation of collateral issues”, and result in a judicial review proceeding that is “complicated, expensive and lengthy”, wherein the “ground is continually shifting, and the core issues may be eclipsed by the procedural issues”.[^4] However, I foresee no such dangers created by the record filed by the respondents in this case. The material included in that record by the respondents and targeted by the applicant via this motion is not voluminous, amorphous or ill-defined. The essence of the objection raised by the applicant instead focuses on a different issue; i.e., whether the material targeted by the applicant’s motion should be before this court on the judicial review hearing as a matter of underlying policy and procedural fairness.

b. I agree that characterizations of that material as something not referenced by the Integrity Commissioner in her report, or something excluded from consideration by supposed comments by the commissioner in her report or comments to council somehow limiting the underlying record, are largely exaggerated or otherwise inaccurate. Without limiting the generality of the foregoing:

i. As highlighted and explained in detail with specific references by the respondents, (in their responding motion material and counsel submissions), most of the material targeted by the applicant’s motion for exclusion actually is referenced by and/or reflected in the Integrity Commissioner’s report, and clearly formed part of her investigation which led to her decision regarding the applicant’s contravention of the municipality’s relevant code of conduct and recommendation regarding imposition of a penalty in that regard. It also was material or information disclosed to the applicant in the course of the commissioner’s investigation, and/or reflects multiple communications exchanged between the commissioner and the applicant during the course of the commissioner’s investigation, and the formation of the commissioner’s decisions and recommendation relied upon by council in making its decision regarding imposition of penalty. While the record filed by the respondents preserves the discretion exercised by the Integrity Commissioner with respect to confidentiality, in my view that was an entirely proper approach in the circumstances.

ii. I am inclined to agree with the submission of respondent counsel that suggestions of the Integrity Commissioner relying “strictly” or “solely” on materials attached to her report “and nothing else” are inaccurate and/or inappropriately take comments made by the commissioner to council out of context and attribute a significance to them that they were not intended to have. Without limiting the generality of the foregoing:

1. In her report, the commissioner expressly indicated that specific posts she mentioned are only some of those that were brought to her attention and which went into the making of her decision, although she intended to focus on certain posts with more specific comments in her report.

2. The context of the oral remarks made by the Integrity Commissioner to council, at the meeting wherein council considered the commissioner’s report and decided to impose a penalty on the applicant for contravention of the municipality’s relevant code of conduct, is important. As emphasized in the written and oral submissions of respondent counsel, and as reflected in the transcript of council proceedings included in the record of proceedings filed by the respondents, the Integrity Commissioner was attempting to clarify for members of council and the public that the focus of the commissioner’s mandate was strictly on the relevant code of conduct and whether the applicant’s social media postings had contravened that code, and that the focus of council was on the consequences to be imposed for that code’s contravention; i.e., not on the substantive issues which were the subject matter of the applicant’s motion or social media postings. The commissioner also was responding to questions relating to her decision to preserve the anonymity of the underlying complainants, in the course of which the commissioner noted that council had been provided with the posts brought to her attention. In my view, those comments, as a matter of grammar and context, cannot and should not be misconstrued as indications that the Commissioner’s focus was solely on certain specified social media postings discussed in greater detail and attachments to her report.

iii. The record does include, (as part of the material targeted for exclusion by the applicant), some news media reporting that effectively post-dates the Integrity Commissioner’s investigation and decision regarding the applicant’s contravention of the municipality’s relevant code of conduct, her recommendation to council regarding imposition of penalty, and council’s decision regarding imposition of penalty. While I think that arguably gives rise to legitimate concern in relation to material included in the record filed by the respondents that extends beyond the temporal limits of what was done in terms of what went into the investigation and the making of decision and recommendations by the commissioner, and the consideration and decision-making of council, I nevertheless think it arguably has relevance to the fairness considerations otherwise raised by the applicant in her amended notice of application, and should be left to the panel’s consideration for further reasons noted below.

c. In my view, comments made in the written and oral submissions tendered on behalf of the applicant, suggesting that the Integrity Commissioner did not exercise a reviewable “statutory power of decision”, thereby precluding the filing of any record of proceedings in that regard, are fundamentally and clearly incorrect as a matter of law. Without limiting the generality of the foregoing:

i. As noted above, a “statutory power of decision” is defined by section 1 of the Judicial Review Procedure Act, supra, as a “power or right conferred by or under a statute to make a decision deciding or prescribing … the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or … the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not”. [Emphasis added.]

ii. In my view, the provisions of the Municipal Act, 2001, supra, which I outlined earlier, make it abundantly clear that it is the Integrity Commissioner appointed by the municipality who is empowered by the legislation to investigate alleged contraventions of a municipality’s code of conduct, and make findings or determinations regarding the existence of any such contraventions, which the commissioner then reports to the municipality. There is absolutely nothing in the legislation to suggest that the municipality, through its council, is given any power or ability to second-guess, alter or reject the determinations made by the Integrity Commissioner in that regard. In particular, pursuant to s.223.4(5) of the Municipal Act, 2001, supra, the council of a municipality may decide whether or not to impose a penalty in relation to a code of conduct contravention the Integrity Commissioner has found to exist, and what that penalty should be, within the limited parameters set by the legislation. However, under the legislative scheme as I read it, it is the Integrity Commissioner who is clearly and solely entrusted with a “statutory power of decision” to make an inquiry into the duties of a councillor in relation to a municipality’s code of conduct and determine whether or not those duties have been breached.

iii. Indeed, this court has confirmed, in Assaly v. Integrity Commissioner of the Town of Hawkesbury, 2021 ONCS 1690, 2021 ONSC 1690 (Div.Ct.), that there are two separate and independent but sequentially related aspects to the legislated “Accountability and Transparency” scheme found in Part V.1 of the Municipal Act, 2001, supra, as far as municipal councillors are concerned; i.e., the first dealing with a conclusion as to facts and law in relation to a councillor’s contravention of a municipality’s code of conduct, (which is a statutory precondition to the municipality having jurisdiction to impose any penalty in that regard, and with an Integrity Commissioner’s findings of fact regarding contravention of a code of conduct binding the municipality), and the second dealing exclusively with the sanction (if any) to be imposed by the municipality in relation to any such contravention of its code of conduct.

d. I entirely agree with the respondents’ submission that the applicant, as a matter of logic and fundamental fairness, cannot continue on the one hand to seek the declaratory relief noted above, asking this court to find that there were numerous alleged faults and failings in the procedures followed and conclusions reached and reported by the Integrity Commissioner, as a suggested basis for impugning the consequential decision then made by the municipality’s council in adopting the commissioner’s report and following her recommendation regarding imposition of an appropriate penalty, while arguing on the other hand that material and information clearly bearing on such matters is irrelevant. In other words, the applicant cannot simultaneously make the manner in which the Commissioner exercised her statutory power of decision relevant to the relief she expressly seeks in her amended notice of application, and then argue via this motion that material clearly having a bearing on the Commissioner’s exercise of that statutory power of decision is irrelevant and must be excluded. In that regard:

i. As emphasized by the respondents, this court has made it clear that, where municipal councillors challenge sanctions imposed for established contraventions of a municipality’s code of conduct, the record of proceedings properly should include documents and information reviewed and considered by the Integrity Commissioner forming part of the record of investigation which led to the commissioner’s finding of a contravention; i.e., as the commissioner’s finding of such a contravention is engaged in the application for judicial review, even though the municipality and not the commissioner decides whether to impose a penalty for such a contravention and what that penalty should be.[^5]

ii. More generally, this court also has made it clear that, in cases where the evidence sought to be introduced on a judicial review application is inextricably intertwined with an issue raised on the application, the evidence should be left with the panel hearing the judicial review application, as it will be in the best position to determine what if any relevance the evidence may have to the merits of the application.[^6]

iii. In this case, as noted above, the applicant herself, in both her original notice of application and amended notice of application, expressly has made the manner in which the Integrity Commissioner arrived at and reported her decision regarding the applicant’s contravention of the municipality’s relevant code of conduct, adopted and relied upon by the respondent municipality’s council in deciding to impose a three-month remuneration suspension penalty on the applicant, relevant to the applicant’s request for an order of certiorari quashing and setting aside that decision by the respondent municipality’s council.

iv. In my view, the evidence the applicant seeks to exclude accordingly should remain in the record, so that it is available for the panel’s consideration if and as necessary. Any decision to the contrary would fundamentally and unfairly compromise the ability of the respondents to address and answer the issues the applicant herself has expressly raised in her application.

e. Perhaps it would go without saying, (as I think it implicit in the reasons already outlined), but I do not view this is a situation where the respondents are trying to add to the record of proceedings, necessitating any resort to or consideration of “the Keeprite principles”.

Conclusion

[7] For the reasons I have outlined, the applicant’s motion for an order excluding the specified materials from the respondents’ record of proceedings prior to the requested judicial review hearing is dismissed.

Costs

[8] At the time of the hearing before me, I indicated my intention to necessarily reserve my decision on the motion. In the circumstances, the parties accordingly would be unable to make cost submissions having regard to the substantive outcome of the applicant’s motion.

[9] However, I did make inquiries as to whether the parties had discussed and/or been able to reach any agreement in relation to costs; e.g., having regard to the largely binary possible outcomes of the applicant’s motion being dismissed or granted.

[10] In response, I was informed that the parties and their counsel commendably had reached an agreement in advance on cost entitlement and quantification, dependant on the substantive outcome of the applicant’s motion. In particular, I was advised that the parties had agreed that costs of the motion should be fixed in the all-inclusive amount of $7,000.00, and awarded “in the cause on the motion”; i.e., to the party or parties who were successful on the motion.

[11] As the respondents succeeded in defeating the applicant’s motion, costs of the applicant’s motion accordingly are hereby awarded to the respondents and fixed in the all-inclusive amount of $7,000.00, payable forthwith.

Justice I.F. Leach

Date: September 3, 2024

[^1]: Pursuant to section 10 of the Judicial Review Procedure Act, supra, “When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made”.

[^2]: That Private Record of Proceedings is the subject of a sealing order granted by Justice Tranquilli on February 2, 2023, in response to a request made in that regard by the respondent municipality.

[^3]: In some instances, the communications took the form of electronic messages sent by the Integrity Commissioner and/or Councillor Jubenville, such that the messages themselves, (including a photograph and/or social media posts they attached or otherwise forwarded), constitute the record of what was said or conveyed in the relevant communications. In other instances, the communications apparently were verbal, and were documented by handwritten notes made by the Integrity Commissioner, accompanied by a typed transcription in that regard.

[^4]: See also Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 (Div.Ct.), at paragraphs 45-53.

[^5]: See Fallis v. City of Orillia, 2022 ONSC 5737 (Div.Ct.), at paragraphs 16-20.

[^6]: See Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 1185 (Div.Ct.), at paragraph 18. See also Sierra Club Canada v. Ontario (Ministry of Natural Resources), supra, at paragraph 7.