CITATION: Robinson v. Pickering (City), 2025 ONSC 3233

OSHAWA DIVISIONAL COURT FILE NOs.: DC-23-1427-00JR and DC-23-1440-00JR

DATE: 2025-05-30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Lococo, and Howard JJ.

BETWEEN:

LISA ROBINSON

Applicant

– and –

THE CORPORATION OF THE CITY OF PICKERING and THE CITY OF PICKERING INTEGRITY COMMISSIONER (PRINCIPLES INTEGRITY)

Respondents

Michael Alexander, for the Applicant

Julia Wilkes and Sean Pierce, for the Respondents

HEARD at Oshawa: September 18, 2024

REASoNS FOR DECISION

howard j.

Overview

[1] The applicant, a municipal councillor who sits on city council of the respondent City of Pickering, seeks judicial review of two decisions of council in which council unanimously voted, in the first instance, to suspend the applicant’s salary for 30 days and, in the second, to suspend her salary for 60 days.

[2] Both suspensions were based on recommendations provided by the respondent integrity commissioner, who determined, following investigation of various complaints, that the applicant had violated council’s code of conduct.

[3] The applicant also seeks leave to amend her amended notice of application to advance an allegation of bias against the mayor of the respondent city.

[4] For the reasons that follow, the applications and motion are dismissed.

Factual Background and Decisions of Council

[5] The applicant, Lisa Robinson, is an elected member of the city council of the respondent municipality, having been elected on October 24, 2022.

[6] The respondent Corporation of the City of Pickering (the “City”) is an Ontario municipality incorporated pursuant to the Municipal Act, 2001[^1](the “Act”). It is governed by a city council (“Council”) composed of the mayor and six councillors who, like the applicant, are elected to serve four-year terms.

[7] Part V.1 of the Act is entitled “Accountability and Transparency.” Under that Part, s. 223.2(1) of the Act requires the City to establish “codes of conduct for members of the council of the municipality and of its local boards.” As part of the ethical framework of the City, the code of conduct represents the standard of conduct expected of all members of Council. The City’s code of conduct is contained in its Policy No. ADM 070, which was enacted in March 2012 and last modified in March 2019 (the “Code of Conduct”).

[8] Pursuant to s. 223.3(1) of the Act, the City is authorized to appoint an “Integrity Commissioner” who reports to Council and who is responsible for performing in an independent manner various functions assigned by the municipality, including, inter alia:

a. The application of the code of conduct for members of council and the code of conduct for members of local boards.

b. The application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council and of local boards.

c. Requests from members of council and of local boards for advice respecting their obligations under the code of conduct applicable to the member.

d. Requests from members of council and of local boards for advice respecting their obligations under a procedure, rule or policy of the municipality or of the local board, as the case may be, governing the ethical behaviour of members.

[9] The second-named respondent, Principles Integrity, was appointed to serve as the Integrity Commissioner for the City on November 15, 2022 (the “Commissioner”). Principles Integrity also serves as the Integrity Commissioner for a number of other Ontario municipalities.

[10] Section 223.1(1)(a) of the Act authorizes the Commissioner to receive and conduct an inquiry in respect of a request or complaint by a member of Council or a member of the public as to whether any member of Council has contravened the Code of Conduct.

[11] The City’s Code of Conduct authorizes the Commissioner to determine, on a case-by-case basis, whether to undertake an investigation of a complaint. Section 18.03 of the Code of Conduct permits the Commissioner to summarily dismiss a complaint if the Commissioner believes it constitutes an abuse of process or is frivolous or vexatious.

[12] Where the Commissioner decides to undertake a formal investigation, a copy of the complaint is given to the councillor in question and a copy of any response from the councillor is given to the complainant. The Commissioner may interview anyone whom the Commissioner deems relevant to the investigation and resolution of a complaint.

[13] Upon completing an investigation, the Commissioner issues a report to Council. The report may contain “findings” made by the Commissioner and the Commissioner’s opinion as to whether the councillor has contravened the Code of Conduct. The report may also contain the Commissioner’s recommendations as to sanction or remedy, which recommendations are not binding on Council.

[14] In this regard, s. 223.4(5) of the Municipal Act, 2001 provides that:

The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct:

1. A reprimand.

2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days.

[15] The Commissioner has a statutory duty of confidentiality with respect to investigations. Subsection 223.5(1) of the Act requires that the Commissioner “shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part.” However, s. 223.6(2) permits the Commissioner to disclose in a report to Council about whether a member has contravened the Code of Conduct “such matters as in the Commissioner’s opinion are necessary for the purposes of the report.”

The First Decision

[16] In or about the same month that the applicant was elected to Council in October 2022, she purchased a 20-feet-long steel shipping container, which she placed on the exterior side and front yard of her residential home. She used the shipping container to store decorations for a “Halloween Haunted House” event that she had hosted for 12 years, with the proceeds going to charity. Previously, the applicant stored the decorations in the basement of her home, but she explained that the volume of the decorations (mostly large animatronics) had grown over the years.

[17] In January 2023, the City’s by-law enforcement department received complaints about the shipping container being located on the applicant’s side yard. In February 2023, the applicant began the process of applying for a minor variance to allow the shipping container to remain in her yard.

[18] On May 10, 2023, the applicant’s minor variance application was heard at a virtual meeting of the City’s committee of adjustments. While City planning staff supported the variance application, three residents attended and opposed the application. A fourth resident had sent a letter, asking to remain anonymous, which was read into the record. The residents objected to having a large shipping container permitted as a permanent additional structure on the side yard of the house in a residential neighbourhood.

[19] In the result, the committee of adjustment denied the applicant’s minor variance application.

[20] The Commissioner found that “within hours,” the applicant posted on her Facebook page a post that identified the three residents who opposed her minor variance application by name, as follows:

Tonight it is with great sadness that I announce this years Robinsons Charity Halloween Haunt and corn maze will have to be cancelled. A big Thank you to [name redacted], [name redacted], and [name redacted] for your neighbourly kindness.

[21] The Commissioner found that by the next day, a screenshot of the applicant’s Facebook post (including the names of the three residents) was circulating on social media.

[22] On May 10 and 11, 2023, the Commissioner received several complaints arising out of the Facebook post. The complainants believed the applicant’s post was an inappropriate attack against individual residents who had simply participated in a public planning process to oppose her minor variance application. They complained that the applicant’s Facebook post may intimidate and discourage others from expressing views that do not align with the applicant’s for fear of being similarly singled out on social media.

[23] After conducting an investigation, the Commissioner released its report dated August 14, 2023 (the “First Report”), in which the Commissioner concluded that, in making her Facebook post, the applicant had contravened s. 05.01 of the Code of Conduct, which provides that:

Members have a duty to treat members of the public, one another, and staff, with respect and dignity and without abuse, bullying, or intimidation.

[24] The First Report went on to consider recommended remedies, and the Commissioner noted that the available sanctions ranged from a reprimand to a suspension of pay for 90 days. Ultimately, the Commissioner recommended a 30-day suspension of the applicant’s pay for her breach of the Code of Conduct.

[25] At its meeting on September 25, 2023, Council received the First Report. Council members had an opportunity to ask the Integrity Commissioner questions, following which a motion was put to adopt the First Report and impose the recommended sanction. In the ensuing debate, Council addressed the applicant’s contention that the Commissioner was in a conflict of interest because the City paid the Commissioner for its services. While the applicant did not vote on the resolution, she did participate in the questioning of the Commissioner and in the discussion amongst Council members.

[26] Council then unanimously voted to adopt the First Report and the Commissioner’s recommended sanction that the applicant’s pay be suspended for 30 days. Council’s resolution was confirmed in by-law no. 8047/23, which was passed the same day, September 25, 2023 (the “First Decision”).

[27] On November 8, 2023, the applicant sought judicial review of Council’s First Decision and the underlying First Report.

The Second Decision

[28] Within a matter of days following the applicant’s making of the Facebook post that became the subject of the First Decision, she attended a meeting of the Durham District School Board in Whitby on May 15, 2023.

[29] The May 15th meeting was held a few weeks before Pride month was set to begin in June 2023. In Pickering, expected Pride month activities included a Pride parade, the raising of Pride flags, and a “drag queen story time event” scheduled at the Pickering Public Library for June 3, 2023.[^2] A large crowd attended the school board meeting because it was anticipated that questions would be raised in the public session relating to the flying of Pride flags at school board buildings.

[30] The Commissioner found that there was a large and occasionally unruly crowd at the school board meeting, and the chair found it necessary to recess the meeting more than once, ultimately resorting to clearing the gallery in order to enable the board meeting to continue without interruption. It was the first time in memory that the school board had to recess a meeting and clear the public gallery. The applicant was seated with these individuals.

[31] Once outside, the applicant used a megaphone to address the crowd assembled on the steps of the school board office. The councillor told the crowd that she intended to bring three motions at the upcoming City Council meeting, and she proceeded to describe the three motions. The councillor urged the crowd to attend the Council meeting and to lobby their local politicians to support her motions.

[32] The applicant’s three motions were fairly described in para. 41 of the respondents’ factum in the following terms:

Adult Live Performances Motion: The first motion sought to protect children from “adult live performances” by prohibiting them from being authorized anywhere children are present. The motion defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience and in whole or in part, depicts or simulates nudity, lewd exposure of prosthetic or imitation genitals or breasts.” The applicant’s motion states that “both drag shows and pride parades are adult live performances” and defines pride parades as “an outdoor event celebrating lesbian, gay, bisexual, transgender and queer (LGBTQ).”

The Flag Raising Motion: The second motion sought to ban the raising of any non-government flags in public spaces on the basis of the “Duty of State Neutrality.” It would have exempted the Poppy flag and the Veterans flag from this ban.[^3]

The Changerooms Motion: The third motion alleged that the universal changeroom at the Chestnut Hill Recreation Complex “gives an opportunity to predators to be alone with vulnerable children.” Contrary to the applicant’s description in her factum, this motion would have required the City to permit nonmembers of the Complex to use gender-specific changerooms that had previously been reserved for members.

[33] From May 19 to 23, 2023, the Commissioner received various complaints from three of the applicant’s six fellow councillors on City Council, a school board trustee, and other members of the community, who alleged that the applicant’s conduct and behaviour deliberately and intentionally invited a protest at Council chambers and promoted homophobia and transphobia in pursuit of an agenda that is inconsistent with human rights legislation and the Code of Conduct. The complainants alleged that the applicant knew that her three motions were perceived by her Council colleagues as being homophobic and that none of her colleagues was prepared to second any of her motions.

[34] The Commissioner proceeded to investigate the complaints, and over the course of the investigation it was alleged that the applicant had engaged in reprisals by filing counter-complaints against two of the councillors who had filed complaints against her.

[35] The Commissioner released its report dated October 13, 2023 (the “Second Report”), in which the Commissioner found that the applicant’s conduct on May 15, 2023, outside the school board meeting promoted homophobic and transphobic attitudes, failed to recognize the diversity of her community, and failed to respect the dignity of individuals. The Commissioner concluded that the applicant had contravened both s. 05.01 of the Code of Conduct (which was the same provision found to have been breached in the First Report) and s. 17.01 of the Code of Conduct, which provides that:

No Member shall seek any reprisal or threaten any reprisal, against a complainant or any other person for providing relevant information to the Integrity Commissioner in the course of an inquiry pursuant to a complaint.

[36] The Commissioner also addressed the question of sanction in the Second Report and concluded that “a significant sanction is warranted.” The Commissioner recommended that the remuneration paid to the applicant should be suspended for a period of 60 days (four pay-periods).

[37] At its meeting of October 23, 2023, Council received the Second Report. Again, Council members had an opportunity to ask questions of the Commissioner and a debate ensued on a motion to impose the recommended sanction. There was discussion amongst the councillors about, inter alia, the need to take responsibility and work collaboratively to set an example for respectful and responsible governance. Due to a lack of decorum during the discussion, the Council meeting had to be recessed so that the public gallery could be cleared.

[38] Once the meeting resumed, Council unanimously passed a resolution to adopt the Second Report and the Commissioner’s recommended sanction that the applicant’s pay be suspended for 60 days. Council’s resolution was confirmed in by-law no. 8051/23, which was passed that same day (the “Second Decision”).

[39] On December 6, 2023, the applicant sought judicial review of Council’s Second Decision and the underlying Second Report.

[40] Both of the two applications for judicial review were commenced late, that is, beyond the 30-day period required by s. 5(1) of the Judicial Review Procedure Act.[^4] The applicant subsequently brought motions (a) seeking leave pursuant to s. 5(2) of the JRPA to extend the time to commence the applications, (b) to have the two judicial review applications joined and heard together, and (c) for leave to make various amendments to her notices of application.

[41] The respondents did not oppose the applicant’s request for leave to extend the time to commence the applications, and they consented to the motions for leave to amend and to have the applications heard together. By order dated April 3, 2024, Charney J. granted the relief sought by the applicant on her motions.

[42] Subsequently, counsel for the applicant advised that the applicant wished to make further amendments to her applications, and a draft amended amended notice of application for judicial review was provided to the respondents by email correspondence dated May 3, 2024.

[43] The respondents consented to some of the new proposed amendments, but they opposed others. In particular, the respondents oppose a series of amendments relating to a new claim that the Second Decision should be set side because, the applicant alleges, the mayor of the City displayed bias towards the applicant during the Council meeting of October 23, 2023.

[44] At a case conference held on July 3, 2024, Charney J. ordered that the applicant’s motion for leave to further amend her notices of application was to be argued before the full panel hearing the applications for judicial review.

Issues

[45] The issues to be determined by this court are:

a. Does the Commissioner perform an investigative or adjudicative function?

b. Should the First Decision of Council be set aside?

c. Should the Second Decision of Council be set aside?

d. Should the applicant’s motion for leave to amend to raise new allegations of bias against the mayor be allowed?

Standard of Review

[46] The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov instructs that in determining the applicable standard of review, one begins with the presumption that the standard of reasonableness applies.[^5] The presumption can be rebutted in two types of situations: where the legislature has indicated a different standard is to apply[^6] or where the correctness standard is required by the rule of law.[^7] Neither applies in this case.

[47] The parties here agree that the applicable standard of review is reasonableness, consistent with various Divisional Court decisions on point in the context of decisions of a municipal council based on recommendations from an integrity commissioner.[^8]

[48] The Supreme Court’s decision in Vavilov holds that reasonableness “remains a robust form of review” – but operates within a context of overall judicial restraint.[^9] Reasonableness review “finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.”^10 This “foundational”[^11] principle requires that “courts intervene in administrative matters only where it is truly necessary to do so.”[^12]

[49] Under Vavilov, the reasonableness standard assesses whether there is justification, transparency, and intelligibility within the decision-making process in relation to the factual and legal constraints that bear on the decision and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.[^13]

[50] A reviewing court cannot interfere with a decision simply because it would have decided the matter differently or because an alternative interpretation was open to the tribunal. The role of the reviewing court is to refrain from deciding the issue itself and, instead, to review, that is, to “consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable.”[^14]

[51] As such, reasonableness review is not “a line-by-line treasure hunt for error.”[^15] “[M]inor missteps” are not a proper basis to find that an administrative tribunal’s decision is unreasonable.[^16] The tribunal’s reasons “must not be assessed against a standard of perfection” and need “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred.”[^17] Rather, a tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.”[^18]

Analysis

Does the Integrity Commissioner perform an investigative or adjudicative function?

[52] At the outset of his argument before us, counsel for the applicant submitted that the “decisive issue” before the court on these applications is whether the Commissioner performs an investigative or adjudicative function.

[53] Indeed, counsel highlighted some important consequences depending on how this critical issue is determined. For example, if the Commissioner is held to be an investigator, then Mr. Alexander conceded that the applicant’s allegations of bias are “no longer in play” because of the higher threshold for establishing bias applicable to an investigator, as will be discussed below.

[54] While the respondents essentially take the position that the Commissioner is an investigator, the applicant maintains that the Commissioner is exercising an adjudicative function.

[55] Counsel for the applicant submits that there is an “ongoing dispute within the Divisional Court” on this point. He posits a divide in the jurisprudence of this court between, on the one hand, decisions like Assaly v. Integrity Commissioner for the Town of Hawkesbury[^19] and Jubenville v. Municipality of Chatham-Kent,[^20] which, he submits, support the applicant’s contention that the Commissioner performs an adjudicative role, and, on the other hand, decisions like Chiarelli v. City of Ottawa and Villeneuve v. Township of North Stormont, which indicate that the Commissioner serves an investigative function.

[56] Respectfully, I perceive no great “dispute” in the jurisprudence, at least not as pronounced as counsel suggests. Further, I fail to see how the court’s decisions in Assaly and Jubenville are of much assistance to the applicant, especially since neither of them actually address the investigator v. adjudicator issue.

[57] Moreover, I would note at the outset that the decisions in Assaly and Jubenville were interim decisions on motions brought within the context of a judicial review application and, as such, were decided by a single judge of the Divisional Court.[^21] They were not decisions of a full panel addressing the application for judicial review on its merits.

[58] I shall review each decision in turn.

[59] In Assaly, decided in March 2021 by Beaudoin J. sitting as a single judge of the Divisional Court, the mayor of the Town of Hawkesbury sought an interim order to stay any decision being made by municipal council that could entail penalties for the applicant mayor. The town’s integrity commissioner received complaints about the mayor in November 2020. The commissioner disclosed those complaints to the mayor on December 16, 2020, and asked for an opportunity to examine the mayor about the merits of the complainants. The mayor responded that she was leaving town for the Christmas holidays on December 18, 2020, but would make herself available for questioning after she returned on January 10, 2021. There was an exchange of emails between the mayor and commissioner, who wished to question the mayor before December 24, 2020, because he was anxious to finish his inquiry before his term ended on December 31, 2020.

[60] In the end, the integrity commissioner proceeded to complete his investigation without interviewing the mayor, relying on her written response. On December 31, 2020, the commissioner submitted his investigation report, in which he concluded that two of the three complaints that the mayor had violated the town’s code of conduct had merit and, further, that the mayor had been in a conflict of interest in the handling of the two complaints against her.

[61] The mayor took exception to the investigation report being completed without the commissioner having examined her. The commissioner’s report was presented on January 19, 2021, at an in camera session of the committee of the whole of the town. Ultimately, the matter was put over to the regular meeting of the town on March 8, 2021.

[62] The mayor commenced an application for judicial review on February 1, 2021, and then moved for an interim order staying the town’s consideration of the report at its public meeting on Monday, March 8, 2021. The motion for the interim stay was argued before Beaudoin J. on Friday, March 5, 2021.

[63] For reasons released on Monday, March 8, 2021, Beaudoin J. dismissed the application for the stay. Noting that the test for an interim stay under s. 4 of the JRPA is essentially the same as the test for an interlocutory injunction,[^22] the motion judge went on to consider the familiar three-part test for an interlocutory injunction laid down by the Supreme Court of Canada in R.J.R. – MacDonald Inc. v. Canada (Attorney General),[^23] the court ultimately concluded that the mayor had not satisfied the court that she will suffer irreparable harm if the report were made public during the March 8th meeting,[^24] noting that this “conclusion as to irreparable harm puts an end to the application for a stay.”[^25]

[64] However, in the course of his consideration of whether the underlying application for judicial review presented a serious question, so as to satisfy the first prong of the R.J.R. – MacDonald test, the motion judge stated that he was convinced that the integrity commissioner’s decision in his final report that the mayor had contravened the town’s code of conduct “is a decision that can be reviewed under the Act, because it involves a statutory power of decision” under s. 1 of the JPRA.[^26] The motion judge noted that the commissioner’s decision in his report “makes findings of fact binding both [the integrity commissioner] and [the mayor] in relation to the Code of Conduct.”[^27]

[65] The motion judge also concluded that the mayor’s allegations of procedural unfairness against the commissioner also constituted a serious question for the purpose of the judicial review.[^28] Thus, the motion judge concluded that the first branch of the R.J.R. – MacDonald test was satisfied because the underlying judicial review presented a serious question. However, as I have said, in the result, the motion judge went on to dismiss the request for the interim stay because it failed on the second branch of irreparable harm and also on the third branch considering the balance of convenience.[^29]

[66] In dismissing the application for an interim stay, the comments of the motion judge as to whether the integrity commissioner makes a statutory power of decision for the purpose of s. 1 of the JPRA are, strictly speaking, obiter.

[67] Further, the motion judge’s comments do not really assist the applicant here because I do not understand the respondents to take the position that this court on judicial review of Council’s decisions may not have regard for the Commissioner’s reports. In my view, it is common ground that given that Council reached its decisions based on the Commissioner’s reports, the reports in question provide the reasons for Council’s decisions to impose the penalties in question. On this point, the applicant’s reliance on this court’s decision in Fallis v. City of Orillia is both sound and uncontested, where the Divisional Court said:

The Integrity Commissioner’s recommendation was essentially adopted by Council, … As a result, the Integrity Commissioner’s recommendation and City Council’s decision to accept the recommendation is treated as the decision under review, and the Recommendation Report as providing the reasons for the decision.[^30]

[68] Moreover, I note that counsel for the applicant appears to distance himself from the observations made by the motion judge in Assaly about the integrity commissioner making a statutory power of decision, as reflected in the applicant’s factum here, as follows:

Further, since Council reached its decision based on the Commissioner’s Reports, they provide the reasons for Council’s decisions to impose penalties; thus, the Reports are also reviewable as well, even though they do not meet the definition of a statutory power of decision.[^31] [Emphasis added.]

[69] In any event, given especially the exigent circumstances surrounding the hearing in Assaly, with the matter being argued before the motion judge on Friday, and the motion judge releasing his reasons on the following Monday, being the same Monday as the scheduled public meeting sought to be enjoined, the reality is that the motion judge in Assaly was not asked to consider the larger issue of whether the integrity commissioner performs an investigative or adjudicative function. That issue simply was not put before the court in Assaly. As a result, the motion judge’s decision on the interim stay application in Assaly is of no assistance to the applicant here.

[70] In contrast to Assaly, the question of the different nature of the roles played by an integrity commissioner and municipal council was considered by this court in Chiarelli, which was a decision of the full panel of the Divisional Court, released per curiam in December 2021.

[71] In Chiarelli, six complaints had been made against a municipal councillor, which the integrity commissioner of the City of Ottawa investigated. In the ensuing judicial review application, the councillor argued, inter alia, that the commissioner lacked jurisdiction to investigate the complaints, showed bias against him, and denied him procedural fairness.

[72] In considering the statutory scheme under the Municipal Act, 2001, the full panel of the Divisional Court expressly recognized that it is city council that performs the adjudicative function in code of conduct disputes, as reflected in the following pronouncements of the court:

a. “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.”[^32]

b. “But, having been assigned this adjudicative role by the Legislature, …”^33

c. “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.”[^34]

d. “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.”[^35]

e. “The Municipal Act, 2001 does not require a City Council to swear, affirm or otherwise indicate that they will discharge their adjudicative function …”[^36]

[73] In contrast, the court expressly rejected the suggestion that an integrity commissioner performs an adjudicative function or is the de facto decision-maker. The court expressly held that the role of the integrity commissioner is investigative, not adjudicative, as follows:

a. “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).”[^37] [Emphasis added.]

b. “After receiving any response provided, the Commissioner is then to investigate the complaint and to report his findings to City Council.”[^38]

c. “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.”[^39]

d. “The Commissioner’s role is investigative, not adjudicative.”[^40]

[74] In the subsequent Villeneuve case, a decision of the full panel of the Divisional Court released in November 2022, the court cited the Chiarelli decision on the issue of the standard of review, but the Villeneuve court did not squarely address the adjudicative versus investigative issue (apart from making passing reference to the integrity commissioner’s “investigation.”)[^41]

[75] That said, the majority reasons of the court did comment on the role of municipal council, in a manner that implicitly rejects the conclusion of the motion judge in Assaly, as follows:

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.[^42]

[76] Finally, in Jubenville, decided in September 2024 by Leach J. sitting as a single judge of the Divisional Court, the applicant city councillor brought a motion for an order excluding certain materials from the “record of proceedings”[^43] that had been filed by the respondent municipality in advance of the hearing of the judicial review application.

[77] It is difficult to determine the specifics of the impugned material that the applicant sought to exclude from the municipality’s record of proceedings; while the material was apparently “particularized at length” in the applicant’s notice of motion, those particulars were not replicated in the motion judge’s decision.[^44]

[78] That said, the motion judge categorized the impugned materials as including (a) communications exchanged between the applicant and the integrity commissioner, 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, (b) news media reports referenced in the commissioner’s report and/or in communications between the applicant and the commissioner, and (c) communications with council in the period leading up to council’s consideration of the commissioner’s report on August 14, 2023, and a media report from the same period.

[79] In dismissing the applicant’s motion to exclude the impugned material from the respondent municipality’s record of proceedings, the motion judge recognized that defining the appropriate record for consideration by the Divisional Court on a judicial review application “is a matter of great importance.”[^45] However, the motion court saw no dangers created by the record filed by the respondent, in that, the impugned material targeted by the applicant “is not voluminous, amorphous or ill-defined.”^46

[80] Nonetheless, the motion judge then went on to address the applicant’s argument[^47] that the impugned material had to be removed from the record of proceedings because, it was said, the record of proceeding is created only when an administrative body exercises a “statutory power of decision” as defined in s. 1 of the JPRA, and the integrity commissioner exercises no such statutory power of decision.

[81] Relying in part on Assaly, the motion court in Jubenville rejected the applicant’s argument in the following terms:

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.[^48]

[82] As I read the decision in Jubenville, the motion judge’s views as to who exercises the statutory power of decision constitute only one of several reasons given by the motion judge for dismissing the motion to expunge the impugned material from the record. In that sense, it is not clear to me that his observations on this specific point are “necessary” to the result. As I read the motion judge’s analysis, he would have come to the same conclusion and dismissed the motion even leaving aside that point.

[83] Jubenville was argued and decided more than two years after Chiarelli was released. However, in fairness, there is no indication that the motion judge in Jubenville was referred to the Chiarelli decision.

[84] While Jubenville does not employ the language of the adjudicative versus investigative dichotomy, to the extent that Jubenville can be read as finding that the municipal council does not exercise an adjudicative function, respectfully, I disagree with that holding and prefer the reasoning of the full courts in Chiarelli, Villeneuve, and Fallis.

[85] In my view, when one considers the statutory scheme under the Municipal Act, 2001 involving a municipal council and an integrity commissioner, it is useful to return to the language of the statute in s. 223.4(5) of the Act, which, again, provides:

The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct:

1. A reprimand.

2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. [Emphasis added.]

[86] I note that s. 223.4(5) does not say that the municipality may impose a remedy if the integrity commissioner reports to council that the commissioner “found” or “determined” or “decided” that a member has contravened the code of conduct. On its face, the legislation itself contemplates that what the integrity commissioner is reporting to council is not a decision but, rather, is an “opinion.”

[87] Further, in my view, the language of “opinion” in the statute impliedly suggests that the municipality is not bound to accept that opinion.

[88] As such, it follows that I disagree with the obiter comments of the motion judges in Assaly and Jubenville that an integrity commissioner acting under the Municipal Act, 2001 exercises a statutory power of decision for the purposes of s. 1 of the JRPA. To the extent that s. 1 of the JRPA is defined to mean “a power or right conferred by or under a statute to make a decision” (emphasis added), what is clear from the statute, and specifically s. 223.4(5) of the Act, is that the legislation confers on the integrity commissioner the power to offer an opinion, not make a decision.

[89] Moreover, to the extent that s. 223.4(5) of the Act provides that the municipality “may” (or may not – the legislation is permissive, not prescriptive) impose a penalty where the integrity commissioner reports that, “in his or her opinion,” a member of council has contravened the code of conduct, it would be entirely open for a municipal council to receive a report from its integrity commissioner, in which the commissioner opines that a member contravened the code of conduct, but then to decide that no penalty or sanction should be imposed. To emphasize, the penalty-imposing power of municipal council under s. 223.4(5) is entirely permissive and discretionary. There is no legislative requirement that municipal council must impose a sanction – any sanction – where the integrity commissioner reports that, “in his or her opinion,” a councillor has contravened the code of conduct.

[90] In such circumstances, or at least in some such circumstances, the express decision of municipal council not to impose any sanction where the commission reports that, in its opinion, a councillor has contravened the code may well signal that council disagrees with the opinion of the commissioner that there has been a breach of the code of conduct at all. The ability of municipal council to decline to impose a penalty underscores the legal and practical reality that it is the municipal council that holds the de facto decision-making power over the complaint process. In the end, the municipal council is the real adjudicative decision-maker. [^49]

Should the First Decision of Council be set aside?

[91] Following its investigation, the Commissioner undertook a comprehensive analysis, as set out in its First Report, and concluded that the applicant had breached s. 05.01 of the Code of Conduct in making her Facebook post of May 10, 2023. As reflected in the First Decision, Council accepted the Commissioner’s opinion and imposed the penalty that the applicant’s pay should be suspended for 30 days.

[92] The burden is on the party challenging the decision to show that it is unreasonable.[^50]

[93] The Code of Conduct is a governance document. Counsel for the applicant is correct in saying that while s. 223.2(1) of the Act requires that each Ontario municipality must have a code of conduct, the Municipal Act, 2001 does not mandate the specific contents of a municipality’s code of conduct. In the instant case, the City’s Code of Conduct is contained in a policy of Council. It was enacted by Council in March 2012 and last modified in March 2019. That is, it was debated and approved by the City councillors themselves. The Code of Conduct reflects, if you will, a social compact amongst the members of Council. It reflects the standards of behaviour and ethical conduct that the councillors have set for themselves and that which they expect each of their colleague members to uphold.

[94] In this case, the Commissioner rejected the applicant’s explanation that she intended her Facebook post as a genuine message of gratitude to the three residents who opposed her minor variance application. Rather, the Commissioner found that the Facebook post was a sarcastic message, unfairly blaming the named residents who opposed the applicant’s minor variance application for causing the cancellation of the applicant’s Halloween event.

[95] In my view, Council’s decision to accept the Commissioner’s analysis was entirely reasonable. Indeed, I regard the applicant’s claim that she intended to convey a genuinely sincere message of gratitude to the three named residents whom she outed in her Facebook post to be entirely specious. There is clearly no merit to that claim, and Council reasonably (and, in my view, correctly) rejected the applicant’s spurious claim.

[96] Second, the Commissioner found that, even though the applicant posted the message on her personal Facebook account, she was aware that she was speaking to a broader audience than just family and friends because the Commissioner found that by the next day, a screenshot of the applicant’s Facebook post (including the names of the three residents) was circulating on social media. Moreover, the Commissioner noted that a previous post to the councillor’s personal Facebook account had been circulated widely enough that it became the subject of public criticism. Council’s acceptance of the Commissioner’s opinions in this regard was supported by the evidence before the Commissioner and was reasonable.

[97] Ultimately, the Commissioner concluded that the applicant’s Facebook post was “irresponsible” because it constituted a “bully tactic” that could be seen as inviting others to blame, and attack on social media, the residents who opposed the applicant’s minor variance for the cancellation of the applicant’s annual Halloween event. In fact, one complainant had requested anonymity specifically because that particular complainant was apprehensive about expressing public opposition to the councillor’s minor variance application. Further, one of the concerns raised by the complaints was that others would be afraid to express views that did not align with the applicant’s views for fear of being singled out with attacks on social media.

[98] In my view, Council’s acceptance of the Commissioner’s analysis and their opinion as to these concerns was entirely reasonable. The applicant has not demonstrated that the Commissioner failed to engage in a justifiable, transparent and intelligible analysis or that the Commissioner’s opinion as to outcome was unreasonable.

[99] The applicant complains that in the course of the Commissioner’s interpretation of “bullying” and “intimidation” in s. 05.01 of the Code of Conduct, the Commissioner relied on the Oxford’s Learner’s Dictionary – i.e., a children’s dictionary – whereas the applicant had relied on Black’s Law Dictionary. To my mind, this criticism smacks of a “form over substance” objection. It was not unreasonable for the Commissioner to prefer a simple, plain-language explanation – “the use of strength or power to frighten or hurt weaker people” – which, in my view, fairly captures the gravamen of bullying.

[100] Further, there is no basis to conclude that the Commissioner was biased, as the applicant subsequently alleged. An allegation of bias must be raised before the person who is alleged to be biased; it cannot be raised for the first time on judicial review.[^51] Indeed, in Chiarelli, the Divisional Court held that:

An allegation of bias is to be made, at first instance, to the person who is alleged to be biased. 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.[^52]

[101] As such, given that the applicant failed to raise any concerns regarding the alleged bias of the Commissioner in respect of the First Report and the surrounding circumstances before the Commissioner, that failure is fatal to the applicant pursuing the issue before us.

[102] In all of the circumstances, I find that the applicant has failed to establish that the First Decision, as based on the reasoning set out in the First Report, was unreasonable.

Should the Second Decision of Council be set aside?

Reasonableness

[103] In the course of its 21-page Second Report, the Commissioner set out an analysis of the conduct of the applicant on May 15, 2023, involving her three motions, and the impact of that conduct, and ultimately concluded that the applicant’s conduct promoted attitudes that are homophobic and transphobic. The Commissioner found that the applicant breached s. 05.01 of the Code of Conduct. The Commissioner also found that the applicant breached the prohibition against reprisals set out in s. 17.01 of the Code of Conduct by lodging counter-complaints against two of the councillors who had complained about the applicant’s behaviour. As reflected in the Second Decision, Council accepted the Commissioner’s Second Report and imposed the recommended sanction that the applicant’s pay should be suspended for 60 days.

[104] At the outset of its analysis, the Commissioner reviewed some of the relevant provisions of the Code of Conduct, including s. 02.02, which provides that the Code of Conduct operates along with, and as a supplement to, existing legislation governing the conduct of members of Council, including the Human Rights Code.[^53]

[105] The Commissioner undertook an analysis of the content, context, and import of each of the applicant’s three motions. In respect of the “Flag Raising Motion,” the Second Report noted that the existing Flag Raising procedure of the City had been in place since 2005 and establishes eligibility for requests that the City will consider. The Report noted that for almost three decades, Pride flags “have been a regular feature on municipal flag poles in Ontario during June, which is Pride Month.”[^54] The Commissioner observed that:

Raising the Pride Flag has become emblematic of acceptance of sexual/identity diversity in the community and a symbol that those citizens who have often experienced marginalization should enjoy the fullest inclusion within their community, in every aspect of their lives.[^55]

[106] The Commissioner addressed the applicant’s argument concerning the “duty of state neutrality” and rejected it on its merits, concluding that the applicant’s proffered argument “is a disingenuous attempt to cloak the elimination of the Pride Flag.”[^56] The Commissioner opined that: “[t]argeting a change in City policy to take away from the LGBTQ+ community the opportunity to call attention to their lived experience as a marginalized group through a municipal flag raising contravenes the spirit of the Ontario Human Rights Code.”

[107] In respect of the “Adult Live Performances Motion,” which, the Commissioner found, would have the effect, if passed, of outlawing the drag queen story time events at the City’s public libraries, the Commissioner examined the applicant’s misconception of the story time events as a form of adult entertainment, which, the applicant (mistakenly) believed, “includes a lot of gyrating and shaking.”[^57] The Commissioner also noted that the applicant ultimately conceded that, in fact, she had never attended any of the drag queen story time events. The Second Report explains that the drag queen story time events typically feature readings from children’s books that focus on inclusivity and diversity.

[108] The Commissioner concluded that the evident purpose underlying the motion, i.e., “protecting” children from engaging with drag queens, “is, in our view, unwarranted and appears to promote a view that children need protection from drag queens. It supports the narrative, currently circulating in some quarters, that drag queen story time events are ‘grooming’ young people.”

[109] In respect of the “Changerooms Motion,” the Commissioner observed that the practical effect of the motion, if passed, would be to permit non-members’ children to use the members-only male and female changerooms at the Chestnut Hill Recreation Complex. The Commissioner noted that the preamble of the applicant’s motion raises the spectre of male predators preying upon unaccompanied children (“And whereas, the co-ed universal changeroom gives an opportunity for predators to be alone with vulnerable children”). However, the Commissioner found that, in fact, “no issue involving an unaccompanied minor being followed into the universal changeroom or being made to feel uncomfortable has ever been brought to the attention of staff.”[^58]

[110] The Commissioner went on to observe that:

Announcing her motion by suggesting that change is necessary because of predatory adults preying on children in the recreation complex was inappropriate. It sidestepped appropriate channels – addressing concerns first with the relevant department head – and it publicly raised unfounded alarms.

Announcing the motion as one of the trilogy of changes which the Councillor was spearheading, appeared to target all three motions, by association, at the LGBTQ+ community. …

Announced in this way the Councillor’s conduct fueled fear, reflecting and promoting attitudes which are both homophobic and transphobic.[^59]

[111] As a result, the Commissioner found “the Councillor’s conduct in promoting the motions on the steps of the [school board] office to constitute homophobic and transphobic behaviour,”[^60] “The Councillor, on May 15, 2023, with a megaphone in hand and on the steps of a public institution of learning, engaged in conduct that was inappropriate for a public official holding office.”[^61] The Commissioner concluded that: “[s]peaking only to a particular perspective, fueling unfounded fears and seeking to affect the rights of minority and marginalized groups – in this case, LGBTQ+, particularly trans persons, is conduct which should not be condoned and should attract appropriate consequences.”

[112] As such, the Commissioner found that the applicant’s conduct was in breach of her obligation under s. 05.01 of the Code of Conduct “to treat members of the public, one another, and staff with respect and dignity and without abuse, bullying, or intimidation.”

[113] The applicant submits that Council acted unreasonably in accepting the Commissioner’s Second Report.

[114] I disagree. The Commissioner engaged in a transparent and intelligible analysis to arrive at a reasonable interpretation of s. 05.01 of the Code of Conduct. I agree with the submission of Mr. Pierce for the respondents that, to paraphrase, the essence of discrimination is failing to treat individuals with respect and dignity, and such conduct contravenes s. 05.01 of the Code of Conduct.

[115] In my view, as reflected in their comprehensive Second Report, the Commissioner, based on their experience with governance issues, arrived at an interpretation of s. 05.01 that fits within the purpose and scheme of the Code of Conduct and the Act and which they explained in a manner that is transparent, intelligible, and justified. Even if it can be argued that it is not the only interpretation of the provision, it is a possible, acceptable outcome that is defensible in respect of the facts as found by the Commissioner and the applicable law.

[116] In all of the circumstances, I find that the applicant has failed to establish that Council’s Second Decision, which was based on the analysis set out in the Second Report, was unreasonable.

[117] I would address two other points raised by the applicant, involving bias and freedom of expression.

Bias

[118] Unlike the failure of the applicant to raise her allegations of bias with the Commissioner in the first instance in the context of the First Report, the applicant did raise with the Commissioner her concerns that the Commissioner displayed bias against the applicant in the course of the second investigation.

[119] It is common ground that, as was held in Chiarelli in the context of the integrity commissioner, the test for showing bias on the part of someone performing an investigative function is even higher than it is for someone performing an adjudicative function; the question is whether the Commissioner exhibited a “closed mind” such that they predetermined the issue.[^62]

[120] The Commissioner addressed the applicant’s concerns at some length in paras. 13-27 of the Second Report. The Commissioner quoted at length from the Chiarelli decision, considered the applicant’s claim, but ultimately dismissed the claim, concluding that they were able to maintain an independent and impartial perspective.

[121] That conclusion is borne out by a review of the Second Report as a whole. Throughout the analysis, the Commissioner maintained an open mind by considering the position and perspectives of the applicant, noting the various arguments that were made by the applicant, and addressing those arguments in an impartial manner. In many instances, the Commissioner came to a different opinion than the applicant or did not sustain the applicant’s argument (e.g., the applicant’s “duty of state neutrality argument”).[^63] On the other hand, the Commissioner agreed with the applicant that her conduct on the steps of the school board office did not amount to hate speech.[^64] Viewed as a whole, it cannot be said that the Commissioner demonstrated a closed mind.

[122] In any event, as referenced above, counsel for the applicant conceded at the outset of his submissions that if this court determines that the Commissioner functions in an investigative capacity, as I have found, then the applicant’s allegations of bias are “no longer in play” because the applicant cannot satisfy the higher test of demonstrating that the Commissioner had a closed mind.

Freedom of Expression

[123] The applicant argues that the Second Decision constitutes “an unlawful attack on the Councillor for expressing minority or dissenting opinions on matters of public importance.”[^65] The Second Report records that the applicant was aware that her three motions were perceived by her colleagues on Council as being homophobic. The applicant took the position with the Commissioner that “every person’s right to be heard and have issues debated … should not be silenced, attacked or reported because it does not fit other Members of Council’s narrative.”[^66]

[124] The Supreme Court of Canada has repeatedly held that administrative decisions may limit an individual’s rights under the Canadian Charter of Rights and Freedoms[^67] where the limit is proportional to the statutory objective that the administrative agency is required to fulfill.[^68] “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”[^69]

[125] In the instant case, there is no doubt that the Second Decision engaged with the applicant’s argument about her right to freedom of expression. The Commissioner expressly acknowledged the importance of this right.[^70]

[126] The Commissioner engaged in an appropriate balancing exercise. As reflected in the Second Report, the Commissioner expressly acknowledged that “[e]lected municipal officials are leading players in local democracy. They are democratically chosen to look after the community’s interests.”[^71] The Commissioner recognized the importance of elected officials exercising free speech, noting that a councillor’s “freedom of expression is a crucial instrument for achieving effective participation and good municipal government.”[^72] The Commissioner explained that elected municipal councillors function as “conduits for the voices of their constituents: they interpret and convey their grievances respecting municipal government.”[^73]

[127] On the other hand, the Commissioner properly recognized that freedom of expression is not an absolute, unfettered right: “it is limited by reasonable restrictions, including by requirements to protect the rights and freedoms of other persons.”[^74] Moreover, while acknowledging the important role that elected representatives play as “conduits for the voices of their constituents,” the Commissioner was sensitive to the need not to countenance unlimited and possibly harmful expression by allowing an elected official to justify their position as “merely reflecting the views of her constituents.”[^75] The Commissioner reasoned that it would be “completely unacceptable for a Councillor to publicly make statements in support of spousal abuse, antisemitism or slavery, regardless of whether these were the ardently-held views of one’s constituents.”^76

[128] Mindful of the need to balance the applicant’s rights with the rights of other individuals, the Commissioner also recognized that an elected official’s conduct that seeks to fuel “unfounded fears” and impair “the rights of minority and marginalized groups – in this case LGBTQ+”[^77] has the potential to “have a corrosive effect on democracy, allowing the loudest voices to drown out the marginalized and vulnerable in the community.”[^78]

[129] In my view, faced with what the Commissioner found to be conduct by the applicant “reflecting and promoting intolerance, homophobia and transphobia,”[^79] the Commissioner’s finding of a breach of the Code of Conduct and the recommended sanction represents a reasonable, balanced, and proportionate limit on the applicant’s right to freedom of expression given the Commissioner’s statutory mandate to enforce the City’s Code of Conduct in the public interest. In this regard, the Commissioner provided a proportionate response, recommending the sanction of a 60-day suspension of pay that,

while less than the maximum sanction available (90 days), also recognized that the applicant had already been found to have been in breach of s. 05.01 on a previous occasion.

[130] Thus, I agree with the submissions of respondents’ counsel that, given the circumstances of the case, the applicant has failed to demonstrate that Council’s acceptance of the Commissioner’s Second Report constitutes an unreasonable and disproportionate balance between the applicant’s Charter interests in freedom of expression and Council’s statutory mandate to enforce the Code of Conduct.

Should the applicant’s motion for leave to amend to raise new allegations of bias against the mayor be allowed?

[131] The applicant states that on May 22, 2024, she filed a notice of motion for leave to further amend the notice of application.[^80] The applicant seeks to add the mayor of the City as a party respondent in the second judicial review application in respect of the Second Decision. The applicant seeks to advance allegations of bias against the mayor for alleged conduct and statements said to have been made by the mayor during the Council meeting in October 2023 when the Second Decision was made.[^81]

[132] I would deny leave to further amend the notice of application. I agree with the respondents that, as was reiterated in Chiarelli,[^82] a claim of bias cannot be made for the first time on judicial review; it must be raised before the original decisionmaker. The applicant failed to raise the allegation of the mayor’s alleged bias before City Council, which would have given the mayor an opportunity to consider whether to recuse himself, and if he did not recuse himself, to provide reasons explaining his decision, which would then be available to this court on judicial review. This is fatal to any claim of bias by the applicant against the mayor.

[133] Further, I am satisfied that permitting the amendment at this stage would cause procedural unfairness. First, I am not satisfied that the applicant has provided a compelling explanation for the delay in bringing the motion for leave to further amend. The applicant herself was in attendance at the meeting in question in October 2023. We were advised that a video recording of the meeting was made and uploaded to YouTube essentially the day after the meeting.[^83]

[134] Second, I accept that allowing the amendment at this point would cause the respondents to suffer non-compensable prejudice.

[135] Again, the respondents took no position on the applicant’s motions for leave to commence her applications after the expiry of the 30-day period under s. 5(1) of the JRPA. Had the applicant advised of her intention to make allegations against the mayor prior to seeking leave to commence the applications, the respondents may well have taken a different position on the applicant’s motions for leave to extend. The test on the motion for leave to extend time is higher than for leave to amend. Granting leave to amend now, given the applicant’s delay in seeking the new amendments until after the respondents had already agreed to not oppose the applicant’s motions for leave to extend would result in prejudice to the respondents and procedural unfairness.

Costs

[136] The respondents were the successful parties on the applications and motion to amend. There is no reason to depart from the presumptive rule that costs should follow the event.

[137] We have reviewed the bill of costs that respondents’ counsel provided at the end of the hearing, as well as the bill of costs that was subsequently uploaded to Case Center by counsel for the applicant. The respondents seek costs in the partial indemnity amount of $51,678.43. The applicant seeks costs in the amount of $52,504.32 on a “partial indemnity”[^84] basis, plus disbursements of $2,366.36, for a total of $54,870.68. These amounts exceed the cost awards typically awarded in Divisional Court for a half-day hearing.

[138] That said, I appreciate the complexity of the proceedings here. The respondents faced two judicial review applications and seven interim motions. There were repeated efforts to amend and further amend the notices of application. There were at least two case management conferences. And I would note that at the case conference on July 3, 2024, in recognition of the complexity of the proceedings, Charney J. granted leave to each party to file a 50-page factum.

[139] In my view, in the circumstances here, an award of $30,000, all inclusive, represents a fair, reasonable, and proportionate amount.

Conclusion

[140] For all of these reasons, both applications are dismissed as is the motion to amend the notice of application to raise allegations of bias against the mayor.

[141] In the result, there shall be an order that the applicant shall pay the respondent Corporation of the City of Pickering its costs fixed in the all-inclusive amount of $30,000.

[142] For greater certainty, there are no costs payable by or in favour of the respondent integrity commissioner.

Howard J.

I agree _______________________________

Sachs J.

I agree _______________________________

Lococo J.

Released: May 30, 2025

CITATION: Robinson v. Pickering (City), 2025 ONSC 3233

OSHAWA DIVISIONAL COURT FILE NOs.: DC-23-1427-00JR and DC-23-1440-00JR

DATE: 20250530

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Lococo, and Howard JJ.

BETWEEN:

LISA ROBINSON

Applicant

– and –

THE CORPORATION OF THE CITY OF PICKERING and THE CITY OF PICKERING INTEGRITY COMMISSIONER (PRINCIPLES INTEGRITY)

Respondents

REASONS FOR DECISION

HOWARD J.

Released: May 30, 2025

[^1]: Municipal Act, 2001, S.O. 2001, c. 25.

[^2]: In its report dated October 13, 2023, the Commissioner explained, at paras. 66-67, the background to “drag queen story time” events as follows: “Drag queen story time consists of a person, dressed up as a woman (often with very fancy clothing and overdone makeup), reading to children at a library. It is qualitatively not any different from other entertainers who dress up for the entertainment of children – clowns, fairy princesses and animation characters in costume. The significant difference being, perhaps, that drag queens are generally men dressed as women. It should be noted that entertainers have often included men dressed for parts as women – Shakespeare, Kabuki Theatre, Mrs. Doubtfire, and Tootsie being but a handful of examples.”

[^3]: Interestingly, a similar motion to municipal council was in issue in Jubenville v. Municipality of Chatham-Kent, 2024 ONSC 4839, 52 M.P.L.R. (6th) 171 (Div. Ct.) [Jubenville], a case relied upon by the applicant here, in respect of which Leach J. observed at para. 3(e)(ii) that: “[t]he 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.”

[^4]: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 5(1) [JRPA]: “Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).”

[^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], at paras. 16 and 23. See also Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, 476 D.L.R. (4th) 342 [Enercare], at para. 42.

[^6]: Vavilov, at paras. 17 and 34-35.

[^7]: “This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”: Vavilov, at para. 17. See also paras. 32, 53-64, and 69; and Enercare, at para. 42.

[^8]: See Chiarelli v. Ottawa (City of), 2021 ONSC 8256, 27 M.P.L.R. (6th) 1 (Div. Ct.) [Chiarelli], at para. 18; and Villeneuve v. North Stormont (Township), 2022 ONSC 6551, 164 O.R. (3d) 417 (Div. Ct.) [Villeneuve], at para. 12.

[^9]: Vavilov, at para. 13.

[^11]: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421 [Turkiewicz], at para. 92.

[^12]: Vavilov, at para. 13.

[^13]: Ibid., at para. 86, quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47-49; and paras. 99-100.

[^14]: Ibid., at para. 83. See also para. 75 and 145, and Turkiewicz, at para. 56.

[^15]: Ibid., at para. 102, quoting Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54, citing N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses], at para. 14.

[^16]: Ibid., at para. 100.

[^17]: Ibid., at para. 91, citing Newfoundland Nurses, at para. 16.

[^18]: Ibid., at para. 102, quoting Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.

[^19]: Assaly v. Integrity Commissioner for the Town of Hawkesbury, 2021 ONCS 1690, 2021 ONSC 1690, 20 M.P.L.R. (6th) 275 (Div. Ct., Beaudoin J.) [Assaly].

[^20]: See footnote 3.

[^21]: See Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(3).

[^22]: Assaly, at para. 42.

[^23]: R.J.R. – MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 [R.J.R. – MacDonald].

[^24]: Assaly, at para. 73.

[^25]: Ibid., at para. 74.

[^26]: Ibid., at para. 48.

[^27]: Ibid., at para. 49.

[^28]: Ibid., at para. 51.

[^29]: Ibid., at paras. 82-86.

[^30]: Fallis v. City of Orillia, 2022 ONSC 5737, 35 M.P.L.R. (6th) 62 (Div. Ct.) [Fallis], at para. 26.

[^31]: Factum of the Applicant, dated July 15, 2024, at para. 45.

[^32]: Chiarelli, at para. 10

[^34]: Ibid., at para. 147.

[^35]: Ibid., at para. 151.

[^36]: Ibid., at para. 152.

[^37]: Ibid., at para. 20.

[^38]: Ibid., at para. 23.

[^39]: Ibid., at para. 15.

[^40]: Ibid., at para. 74.

[^41]: See Villeneuve, at paras. 7, 27, and 69.

[^42]: Ibid., at para. 39.

[^43]: See JRPA, s. 10.

[^44]: Jubenville, at para. 3(p)(i).

[^45]: Ibid., at para. 6(a).

[^47]: The applicant in Jubenville was represented by Mr. Alexander, counsel for the applicant on the matter before us.

[^48]: Jubenville, at para. 6(c)(ii).

[^49]: As such, this conclusion that the municipal council is, in the end, the effective decision-maker is not contra-indicated by, for example, s. 18.04 of the City’s Code of Conduct here, which provides that “all determinations of the Integrity Commissioner under the Code of Conduct shall be made in his or her own absolute discretion and shall be final and binding.” Among other reasons, first, this provision in the City’s Code of Conduct is found within a policy of the City – it is not codified in statute and, thus, does not constitute a “statutory power of decision.” Any decision-making power thought to be given by s. 18.04 of the City’s Code of Conduct is given by a policy of the City, not a statute of the Legislature. Further, irrespective of whether the Commissioner may determine that a member of Council may have contravened the Code of Conduct, that “final and binding determination” of the Commissioner still does not statutorily require the municipal council under the legislation to impose a penalty or sanction in respect of that opined breach.

[^50]: Vavilov, at para. 100.

[^51]: Chiarelli, at para. 69. See also Speck v. OLRB, 2021 ONSC 3176, 2021 C.L.L.C. 220-046 (Div. Ct.), at para. 44; and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 23.

[^52]: Ibid., at para. 77.

[^53]: Human Rights Code, R.S.O. 1990, c. H.19.

[^54]: Second Report, at para. 47, Record of Proceedings, Tab 5.

[^55]: Ibid., at para. 48.

[^56]: Ibid., at para. 58.

[^57]: Ibid., at para. 68.

[^58]: Ibid., at para. 103.

[^59]: Ibid., at paras. 108-111.

[^60]: Ibid., at para. 113.

[^61]: Ibid., at para. 122.

[^62]: Chiarelli, at para. 76.

[^63]: See Second Report, at paras. 53-61.

[^64]: Ibid., at paras. 125-126.

[^65]: Factum of the Applicant, at para. 91.

[^66]: Second Report, at para. 114.

[^67]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^68]: See Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré], at paras. 55-58; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at paras. 3-4 and 40-42; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at paras. 57-59 and 79-82; and Commission scolaire francophone des Territoires du Nord-Ouest c. Territoires du Nord-Ouest (Éducation, Culture et Formation), 2023 SCC 31, 487 D.L.R. (4th) 631, at paras. 60-72.

[^69]: Doré, at para. 58.

[^70]: Second Report, at para. 114.

[^71]: Ibid., at para. 115.

[^72]: Ibid., at para. 117.

[^73]: Ibid., at para. 118.

[^74]: Ibid., at para. 115.

[^75]: Ibid., at para. 119.

[^77]: Ibid., at para. 123.

[^78]: Ibid., at para. 124.

[^79]: Ibid., at para. 120.

[^80]: Factum of the Applicant, at para. 102. The respondents state in para. 120 of their Factum that no motion record has been delivered. It appears that no such motion record has been uploaded to Case Center.

[^81]: In para. 104 of the applicant’s Factum, the applicant says the Council meeting took place on October 30, 2023. However, in para. 43 of the applicant’s Factum, she says that the meeting of Council where it unanimously voted in favour of the 60-day suspension (the Second Decision) took place on October 23, 2023.

[^82]: Chiarelli, at paras. 69 and 77, quoted above at para. 101.

[^83]: See Factum of the Respondents, at para. 120.

[^84]: The applicant’s “partial indemnity” amount is 80 percent of the actual amount of $65,630.40. The Ontario Court of Appeal has observed that “partial indemnity costs are ordinarily calculated using an hourly billing rate that is around 60 percent of counsel’s actual rate”: Shannon v. Hrabovsky, 2024 ONCA 188, 93 E.T.R. (4th) 373, at para. 6. Recovery of 80 percent of actual costs is akin to a substantial indemnity claim.