CITATION: Jubenville v. Chatham-Kent (Municipality), 2025 ONSC 3598
DIVISIONAL COURT FILE NO.: 040/23 (London)
DATE: 2025-07-28
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Edwards, D.L. and Shore JJ.
BETWEEN:
RHONDA JUBENVILLE Applicant
– and –
MUNICIPALITY OF CHATHAM-KENT and CHATHAM-KENT INTEGRITY COMMISSIONER (MARY ALLEN BENCH) Respondents
COUNSEL:
Michael Alexander, for the Applicant
Amy Block, for the Respondent
HEARD at Toronto: May 28, 2025
REASONS FOR DECISION
The Honourable Justice D.L. Edwards
I. INTRODUCTION
[1] The Applicant was an elected Councillor for the Municipality of Chatham-Kent (the “Municipality”) at the time of the events in issue. In response to several complaints that the Integrity Commissioner had investigated, she filed a report dated July 17, 2023 (the “Report”) with the Municipality’s Council. She found that the Applicant had violated two sections of the Municipality’s Code of Conduct.
[2] On August 14, 2023, the Municipal Council adopted the Report and suspended the Applicant’s salary for 90 days (the “Council Decision”).
[3] The Applicant seeks judicial review of the Integrity Commissioner’s findings and the Council Decision.
[4] I conclude for the following reasons that the Integrity Commissioner’s finding of a breach of s. 10 of the Code of Conduct was unreasonable. The Integrity Commissioner had found a breach of two sections of the Code of Conduct. As one of those findings was unreasonable, the Report is quashed and remitted back to the Integrity Commissioner to reconsider her recommendation as to penalty.
[5] As the Council Decision was based upon the Report, it is quashed. Council shall reconsider this matter when it receives an amended Report.
II. BACKGROUND FACTS
[6] In the spring of 2023, a controversy over flag-raising on municipal property arose when the Municipality failed to respond to a request from a pro-life, anti-abortion advocacy group to fly its flag at municipally owned sites. In response, the Applicant brought a motion before Council to permit only government flags to be raised on municipal property.
[7] In the period leading up to the debate of the motion at Council and continuing after the motion was defeated, various social media posts made by the Applicant were reported to the Municipality’s Integrity Commissioner.
[8] The Integrity Commissioner investigated and, on July 17, 2023, submitted her Report to Council.
[9] In the Report, the Integrity Commissioner found that the Applicant had breached two sections of the Code of Conduct: s. 10 of the Code, by using the influence of her office for a purpose other than the exercise of her official duties; and s. 15 of the Code, by failing to treat members of the public, other councillors, and staff in a civilized manner without abuse, bullying, and intimidation. The Integrity Commissioner recommended a 90-day suspension.
[10] During its meeting on August 14, 2023, Council considered the Report and ultimately voted in favour of the recommended penalty.
[11] By means of a Notice of Application for Judicial Review, the Applicant now seeks an order to quash and set aside the Report and the Council Decision.
III. COURT’S JURISDICTION
[12] The Divisional Court has jurisdiction to hear this appeal pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
IV. THE OFFICE OF THE INTEGRITY COMMISSIONER AND CODE OF CONDUCT
[13] The existence of a code of conduct for a municipality and the position of Integrity Commissioner is mandated by s. 223.2 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”). The Act requires every municipality in Ontario to establish a code of conduct for its members of Council. Section 223.3 of the Act authorizes the municipality to appoint an Integrity Commissioner who is responsible for “performing in an independent manner the functions assigned by the municipality”, including investigating complaints of alleged breaches of the code of conduct and reporting the results of those investigations to municipal councils.
[14] Council adopted its Code of Conduct for Members of Council (“Code”) on August 12, 2019. The Code identifies principles of general application that guide the interpretation of more specific rules and obligations. Those general principles include in s. 5 of the Code the statement that members shall uphold a “high standard of ethical behaviour” and “shall refrain from engaging in conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”.
[15] The two sections of the Code for which the Applicant was found to be in breach are as follows:
10. Improper use of influence:
No member of Council shall use the influence of his or her office for any purpose other than the exercise of her or his official duties.
Examples of prohibited conduct are the use of a member's position as a member of Council or local board or committee to improperly influence the decision of another person to the private advantage of the member, or the member’s parents, children or spouse, friends or associates, business or otherwise. This would include attempts to secure preferential treatment beyond activities in which members normally engage on behalf of their constituents as part of their official duties. Also prohibited is the holding out of the prospect or promise of future advantage through a member supposed influence within Council in return for present actions or inaction.
For the purposes of this provision, “private advantage” does not include a matter that is of general or broad application or that concerns the remuneration or benefits of a member.
15. Discreditable Conduct:
All members of Council have a duty 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. The Human Rights Code applies, in addition to other federal and provincial laws.
[16] To assist the Integrity Commissioner in her investigation, she is given significant power to access information and documents: s. 223.4(2) of the Act.
[17] These investigatory powers are coupled with a strict duty of confidentiality. Section 223.5(1) provides as follows:
The Commissioner and every person acting under the instructions of 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.
[18] Somewhat offsetting this duty of confidentiality is s. 223.6(2) of the Act, which grants to the Integrity Commissioner the discretion to disclose in her report to Council “such matters as in the Commissioner’s opinion are necessary for the purposes of the report”.
[19] As s. 223.6(3) of the Act mandates that the municipality make public the Integrity Commissioner’s report, the Code recognizes that the Integrity Commissioner has the discretion to withhold names and identifying information of complaints where it is in the interest of a just and fair result to do so: see s. 19(c)(v) of the Code.
V. THE INTEGRITY COMMISSIONER’S REPORT
[20] The Integrity Commissioner submitted her Report to Council on July 17, 2023 and found that the Applicant had breached ss. 10 and 15 of the Code.
[21] In her analysis of the s. 10 breach, she concluded that after Council makes a decision, it is a breach of that section for a member of council to continue to advocate for the losing proposition.
[22] In her Report, the Integrity Commissioner references advice that she gave to the Applicant on January 9, 2023, which is as follows:
I confirm my advice to you that it is not a breach of the Code of Conduct to post a photo of Council vote or to comment on what is happening in Council. I confirm my advice to you that any comments posted with a screenshot of the vote must be considered carefully and could in fact breach the Code of Conduct. Once Council has made a decision, all members of council are expected to support it. It is possible to say you did not vote in the majority, but anything beyond that, such as explaining a different position than what council adopted, is quite likely to breach the code of conduct.
[23] She repeats this concept in the Conclusion section of her Report:
Council's role is to set the policy direction and vision for the Municipality of Chatham-Kent, and when a member of council does not agree with that direction, that member is expected to accept it. Each member of council was duly elected to be one member of a decision-making body, Council, and while it is expected that individual members of council will have different views on matters that come before council, and will have different community ties that may influence their decisions at council, it is only acting together that council makes decisions.
[24] The Integrity Commissioner also concluded that it is a breach of s. 10 of the Code for members of Council to advocate on matters outside of the purview of Council.
[25] She rejects the interpretation that s. 10 is limited to prohibiting council members from using their public positions to seek private advantages for themselves or others. She finds this interpretation to be too narrow:
I read this section more broadly, reading the Code as a whole document and relying on section 5 and the general principles previously cited, I interpreted using the influence of office to include using the position as a public official improperly to voice comments about community matters, including comments made about school board matters, other councillors, and also about social issues in the community. The role of a public official is not a mantle to be put on during a council meeting and otherwise set aside when engaged in the community. It is a mantle of public duty that is worn in everything a member of council does, including what a member chooses to post on social media.
[26] With respect to her finding of a breach of s. 15 of the Code, the Integrity Commissioner examines various social media posts. She finds that in the context of the highly emotionally-charged issue and the Applicant’s large social media following, the posts that she made breached s. 15 of the Code as she abused, bullied, and intimidated members of Council and the individual complainants.
VI. ISSUES ON THIS APPLICATION
a. Would a reasonable person apprehend that the Commissioner was biased?
b. Did the Integrity Commissioner reasonably conclude that the Applicant breached two sections of the Code?
c. Was Council’s decision as to penalty reasonable?
VII. STANDARD OF REVIEW
[27] The standard of review for findings of the Integrity Commissioner is one of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 11, 16 and 143; DiBiase v. Vaughan (City), 2016 ONSC 5620, 55 M.P.L.R. (5th) 173 (Div. Ct.), at para. 23; Kroetsch v. Integrity Commissioner for the City of Hamilton, 2021 ONSC 7982, 26 M.P.L.R. (6th) 265 (Div. Ct.), at para. 30; and Robinson v. Pickering (City), 2025 ONSC 3233 (Div. Ct.), at para. 47.
[28] Although the Integrity Commissioner’s findings of fact and findings of breach of the Code are subject to judicial review on a standard of reasonableness, the Integrity Commissioner’s recommendations as to penalty are not subject to judicial review as they are not an exercise of a statutory power of decision: see Villeneuve v. North Stormont (Township), 2022 ONSC 6551, 164 O.R. (3d) 417 (Div. Ct.), at para. 39; Robinson, at para. 90.
[29] The Council’s decision as to penalty is subject to judicial review on a standard of reasonableness: Villeneuve, at para. 39.
VIII. Analysis
A. Would a reasonable person apprehend that the Integrity Commissioner was biased?
[30] The Applicant asserts that the Integrity Commissioner exhibited bias because, in her view, the Integrity Commissioner made findings of fact not supported by the evidence.
[31] The law is clear that, as the Integrity Commissioner’s role is investigative and not adjudicative, the test for showing bias or a reasonable apprehension of bias is whether she exhibited a closed mind such that she predetermined the issue. As stated in Chiarelli v. Ottawa (City), 2021 ONSC 8256, 27 M.P.L.R. (6th) 1 (Div. Ct.), at para. 76 (citing Bell Canada v. Communication, Energy and Paperworkers Union of Canada (1997), 127 F.T.R. 44, at para. 30):
The standard of conduct which is applicable to those performing an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigative function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.
[32] I find that there is no evidence that the Integrity Commissioner had predetermined the issue or had a closed mind. She describes the results of her investigation and then provides findings based upon those results.
B. Did the Integrity Commissioner reasonably conclude that the Applicant breached two sections of the Code?
[33] The Applicant submits that the Integrity Commissioner unreasonably concluded that she had breached ss. 10 and 15 of the Code, whereas the Respondent asserts that her analysis was reasonable and satisfied the Vavilov test.
[34] In undertaking our analysis, we must bear in mind that our role is to review the decision and refrain from deciding the issue ourselves. We must determine whether the decision as a whole was transparent, intelligible, and justified. In other words, did the decision fall within the reasonable array of outcomes available to the Integrity Commissioner? See Vavilov, at paras. 15, and 86.
[35] As the Integrity Commissioner found a breach of two different provisions of the Code, I will analyze separately her reasons and findings for each breach.
[36] The Integrity Commissioner found a breach of s. 15. The heading for that section is “Discreditable Conduct”. Its purpose is clear. Members of Council must treat everyone (be they members of the public, members of council, or staff) in a civilized way. They must not bully, intimidate, or otherwise abuse anyone. Finally, the s. 15 of the Code notes that the Human Rights Code, R.S.O. 1990, c. H.19 applies in addition to other federal and provincial laws.
[37] The Integrity Commissioner identified numerous communications and social media posts made by the Applicant that she determined contravened this section as they were abusive, bullying, and intimidating.
[38] The Integrity Commissioner balanced her right to maintain secrecy with the fact that her Report would be public. She did so in a reasonable way. It was reasonable to withhold the identity of the complainants. The issue before her was the content of the posts and not who complained about them. The withholding of the complaints’ identities does not equate to a lack of evidence to support her findings: see Robinson, at paras. 97-98.
[39] In the context of the emotionally-charged environment that arose before and after the motion that the Applicant brought to Council, the Integrity Commissioner’s decision that the Applicant breached s. 15 of the Code was a reasonable one. It was a decision that, based upon the evidence before her, fell within the reasonable array of outcomes available to the Integrity Commissioner.
[40] I now turn to the Integrity Commissioner’s finding of a breach of s. 10 of the Code.
[41] In her analysis of s. 10, she concludes that s. 10 prohibits a councillor from continuing to advocate for a position after Council reaches a contrary decision and, further, that it is a breach for a councillor to advocate about issues outside of the purview of Council.
[42] She concludes that the principle of requiring a high standard of ethical behaviour means that, after a Council decision has been made, continued dissent, respectful or otherwise, is conduct that would bring the Council into disrepute.
[43] I find that this interpretation of the meaning of s. 10 of the Code is unreasonable.
[44] In examining these principles, it is important to remove the analysis from emotionally-charged issues, such as those that arose around the flag issue.
[45] For example, let us consider the issue in the context of an infrastructure proposal. Should Council fail to pass a measure for a large sewer project in the municipality, does that mean that a councillor is precluded from continuing to advocate for a reconsideration of that issue? Would such conduct, regardless of the nature of such advocacy, breach the overarching principle of s. 5 of the Code of upholding a “high standard of ethical behaviour” and be “conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”?
[46] I find that it is unreasonable to conclude that advocating for a reconsideration of an issue, in and of itself, would breach s. 10 of the Code.
[47] Such an interpretation is clearly an unreasonable interpretation of s. 10.
[48] I also find that the Integrity Commissioner’s interpretation that s. 10 prohibits a councillor from advocating on issues outside of the purview of Council is an unreasonable one.
[49] If, once again, one considers this principle in the context of a less emotionally-charged subject, such as increased funding for research for cancer or world peace, is it reasonable to conclude that s. 10 would preclude a councillor from advocating for more research funds from the federal or provincial governments or for world peace? I think not.
[50] The drafting of s. 10 is significant. After the general principle of “Improper use of Influence” is stated, s. 10 provides an example of improper use of influence.
[51] It describes improper use of influence as the use of influence of office to obtain a “private advantage”. It further clarifies that “private advantage” does not include a matter that is of general or broad application.
[52] Had the drafters intended to adopt an interpretation similar to that reached by the Integrity Commissioner, one would expect that the example would not have been so restricted, nor would it have indicated that a general or broad advantage (such as increased cancer research funding) was not a breach of this section.
[53] I find that the Integrity Commissioner’s interpretation of the scope and meaning of s. 10 is unreasonable.
[54] One must keep in mind that the manner in which one undertakes advocacy is distinct from the right to do so. Although a councillor has the right to undertake an activity, how he or she does it might run afoul of the Code.
[55] A councillor must conduct such advocacy consistent with the general principles of s. 5 of the Code by upholding a “high standard of ethical behaviour” and by refraining “from engaging in conduct that would bring the Municipality or Council into disrepute or compromise the integrity of the Municipality or Council”.
[56] As articulated in Robinson, at para. 127, “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’”. Depending upon the nature of the conduct, continued dissent or advocacy of matters outside of the Counsel’s jurisdiction could possibly run afoul the Code and, in particular, s. 15, Discreditable Conduct.
[57] Having found that the Integrity Commissioner’s interpretation of s. 10 of the Code is unreasonable, it follows that her finding that the Applicant breached s. 10 must be quashed.
[58] As one of her two findings of breach of the Code has been quashed, the Report of the Integrity Commissioner is quashed and returned to her for reconsideration of her recommendation as to penalty.
C. Was Council’s decision as to penalty reasonable?
[59] As the Council Decision was based upon a Report containing an unreasonable finding, the Council Decision is hereby quashed.
[60] Council shall reconsider the issue after the Integrity Commissioner files with it an amended Report.
IX. CONCLUSION AND COSTS
[61] The judicial review of the Integrity Commissioner’s Report is granted. Although the finding that the Applicant breached s. 15 of the Code was reasonable, the finding that the Applicant breached s. 10 of the Code was unreasonable.
[62] The Report is quashed and returned to the Integrity Commissioner for reconsideration of the recommendation of penalty.
[63] As the Council Decision was based upon a Report containing an unreasonable finding, the Council Decision is hereby quashed.
[64] The Applicant has been predominantly successful on this judicial review and is entitled to a costs award. The Applicant had requested the sum of $20,000. I find that is a reasonable amount in the circumstances and order that the Respondent pay to the Applicant the sum of $20,000, fixed inclusive of HST.
D.L. Edwards J.
Date: July 28, 2025
CITATION: Jubenville v. Chatham-Kent (Municipality), 2025 ONSC 3598
DIVISIONAL COURT FILE NO.: 040/23 (London)
DATE: 2025-07-28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Edwards, D.L. and Shore
BETWEEN:
RHONDA JUBENVILLE Applicant
-and-
MUNICIPALITY OF CHATHAM-KENT and CHATHAM-KENT INTEGRITY COMMISSIONER (MARY ALLEN BENCH) Respondents
REASONS FOR DECISION
THE HONOURABLE JUSTICE D.L. EDWARDS
Released: July 28, 2025