Court File and Parties

COURT FILE NO.: CV-22-00690907-0000

DATE: 2023-12-15

ONTARIO SUPERIOR COURT OF JUSTICE

RE: KAREN RAS, Plaintiff

-and-

CORPORATION OF THE CITY OF MISSISSAUGA and RON STARR, Defendants

BEFORE: Shin Doi J.

COUNSEL: Kathryn Marshall, for the Plaintiff Cynthia Kuehl and Marshall Dupuy, for the Defendant, Corporation of the City of Mississauga

HEARD: September 14, 2023

ENDORSEMENT

[1] The Defendant, Corporation of the City of Mississauga, brought a motion to strike the Statement of Claim to the extent it asserts a claim against the Defendant, without leave to amend. The Defendant argued that the Plaintiff, an elected Councillor, was not an employee of the Defendant, and therefore, the claims for constructive dismissal and breach of an employment contract should be struck in the Statement of Claim pursuant to Rule 21.01(1) (b) of the Rules of Civil Procedure.

[2] I agreed with the Defendant that the Plaintiff was not an employee. I struck paragraphs 1((a), (b), (c)), 54, and 62 to 68 of the Plaintiff’s Statement of Claim which were framed in employment. I did not dismiss the action against the Defendant. I granted the Plaintiff leave to amend the Statement of Claim without prejudice to the Defendant to bring a further motion to strike. I awarded costs in the amount of $18, 398.72 to the Defendant. The following are my reasons.

I. Facts

[3] The Defendant is a municipal corporation. The Plaintiff is a former Mississauga City Councillor. The Plaintiff was first elected as City Councillor on October 27, 2014 and re-elected on October 22, 2018. The Plaintiff resigned from her role on January 17, 2022, effective January 28, 2022.

[4] The Plaintiff commenced an action on November 25, 2022 against the Defendant and Mr. Ron Starr. The Plaintiff alleges that she was forced to resign involuntarily from the job that she loved after being stalked and harassed repeatedly for over two years by a fellow Mississauga City Councillor Mr. Starr.

[5] The Plaintiff alleges that she reached out to the Integrity Commissioner and the Mayor to speak about the situation, but no action was taken to address it to provide the Plaintiff with a safe and healthy work environment. The Plaintiff argues that it was only after her resignation and public outcry caused by the media coverage about the situation that any action was taken to address the Plaintiff’s complaints.

[6] The Plaintiff seeks damages against the Defendant for wrongful dismissal, and bad faith, moral and punitive damages. The Statement of Claim reads, in part,

a. $86,303 in damages for constructive dismissal, representing ten (10) months’ pay for the balance of her fixed-term employment contract (s. 1(a));

b. continuation of all benefits and other entitlements over the 10 months’ notice period, including, but not limited to, health and dental benefits, an OMERS pension plan or pay in lieu thereof in an amount to be calculated at trial or summary hearing (s. 1(b));

c. $500,000 in bad faith, moral, and punitive damages (s.1(c) and s. 68);

d. Ms. Ras resigned, involuntarily, and was constructively dismissed from her role on January 17, 2022 effective January 28, 2022 (s.54);

e. Damages for Wrongful Dismissal:

i. On January 28, 2022, Ms. Ras was constructively dismissed. It was an implied term of Ms. Ras’s employment as a Councillor with the City that it would maintain a workplace free from harassment, provide a safe and healthy work environment, and conduct an unbiased, fulsome and transparent investigation into any complaints of harassment or bullying (s.62);

ii. The City failed to do this, thus condoning an environment why Ms. Ras could no longer continue in her role nor could she continue to serve the public (s. 63);

iii. Because Ms. Ras was left with no choice but to resign, she was unable to fulfil the remainder of her four (4) year term (s.64);

iv. Ms. Ras is entitled to 10 months’ compensation in lieu of notice of the termination of her employment, including benefits that she would have received during the balance of her term on Council (s.65);

f. Bad Faith, moral and punitive damages

i. It was an implied term of Ms. Ras’ employment that she would be treated in an honest and good faith manner throughout the course of her employment (s. 66);

ii. The City violated this duty in many ways including, but not limited to, failing to take preventative action to prevent harassment or the creation of a poisoned environment, to investigate Ms. Ras’s harassment complaints when she spoke to Mayor Crombie, Ms. Gill, Mr. Mitcham and Ms. Maxwell, and to take any remedial action until after Ms. Ras’s constructive dismissal (s.67);

iii. In the circumstances, Ms. Ras claims bad faith, moral, and punitive damages against the City in the amount of $500,000 (s.68).

II. Rule 21. 01 (1) (b) Determination of an Issue Before Trial

[7] The Defendant brings the motion to strike pursuant to Rule 21.01 (1)(b) which provides,

A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).

[8] The Defendant argues that the Plaintiff failed to disclose a reasonable cause of action against the Defendant. The Defendant accordingly seeks an order striking out the Statement of Claim to the extent that it asserts a claim against the Defendant, without leave to amend. The legal test is that assuming the facts as pleaded are true, is it “plain and obvious” that the statement of claim discloses no reasonable cause of action, or stated another way, that the claim has no reasonable prospect of success. (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 17, Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCCC), [1990] 2 S.C.R. 959, as cited in Hughes v. Sunbeam Corp. (Canada) Ltd. 2002 CanLII 45051 (ON CA), 61 O.R. (3d) 433 at para 3).

III. Issue: Is a City Councillor an Employee?

[9] It is plain and obvious that the Statement of Claim discloses no reasonable cause of action as against the Defendant framed in employment and has no reasonable prospect of success in that regard. The Plaintiff’s claim asserts against the Defendant: constructive dismissal; and breach of an implied term of an alleged contract of employment. The key issue is then whether the Plaintiff was an employee of the Defendant.

[10] The Plaintiff was a City Councillor. An elected City Councillor has a unique role. It is a principle of municipal law that City Councillors are not employees of a municipal corporation. The Defendant cites St. Elizabeth Home Society v. Hamilton (City), 2005 CanLII 46411 (ONSC) at para 264,

It is an equally long-standing principle of municipal law that an elected member of a municipal council is not an agent or employee of the municipal corporation in any legal sense. Elected members of council are not employed by or in any way under the control of the local authority while in office (see Ian MacFee Rogers, The Law of Canadian Municipal Corporations, loose-leaf, 2nd ed. (Toronto: Thomson Carswell, 2003) vol. 1 at §32.3). Individual council members have no authority to act for the corporation except in conjunction with other members of council constituting a quorum at a legally constituted meeting; with the exception of the mayor or other chief executive officer of the corporation, they are mere legislative officers without executive or ministerial duties (Davies v. Sovereign Bank (1906), 12 O.L.R. 557 (H.C.J.)).

[11] The Defendant further relies on Di Muccio v. Newmarket 2016 HRTO 406 in which the Ontario Human Rights Tribunal held that City Councillors were not employees of the municipality, and therefore, could not access the protections granted to employees under Ontario’s Human Rights Code.

[12] Moreover, the Defendant submits that the role of municipal council and the status as elected Councillor is governed by statute. The Defendant relies on the Municipal Act, 2001, s. 258, which specifically states that employees of a municipality are not eligible to hold office as a member of council:

258 (1) The following are not eligible to be elected as a member of a council or to hold office as a member of a council:

1. Except in accordance with section 30 of the Municipal Elections Act, 1996,

i. an employee of the municipality.

[13] Section 30(1) of the Municipal Elections Act, 1996 requires an employee of a municipality to take an unpaid leave of absence in order to be eligible for and to be elected as a member of the council. Section 30(4) stipulates that if the employee is elected to office, they shall be deemed to have resigned from the employment of the municipality immediately before making the declaration of office. The Municipal Act, 2001 further refers to a member of council as separate and distinct from an employee of the municipality (ss. 45(1), 274(1)). I agree with the Defendant that the legislation is clear that in order to be eligible for election as a City Councillor, one can not be an employee of the municipality.

[14] The Plaintiff argues that the definition of “public office holder” in Municipal Act, 2001, s. 223.1 includes an employee of the municipality and employee of a local board of the municipality. The Plaintiff has cited only part of the definition. The definition of public office holder lists “a member of the municipal council…” I agree with the Defendant that the Plaintiff conflates the municipality and council which are distinct from each other.

[15] The Plaintiff also argues that the Defendant’s Corporate Policy & Procedure includes a Respectful Workplace refers to elected councillors as employees. I disagree with the Plaintiff’s interpretation. The definition of Employee in the policy is qualified. The definition states, “To simplify the language in this policy, the term “Employee” encompasses all union and non-union employees, as well as elected officials, citizen members of committees and volunteers acting on behalf of the City of Mississauga”. It is clear on a plain reading of the definition that elected officials are included under the term “Employee” to simplify the language and not to confer employment status.

[16] The Plaintiff cites an excerpt from a Fact Sheet dated April 2016 from the Office of the Information and Privacy Commissioner of Ontario in support of the argument that a City Councillor may be an employee. That Fact Sheet describes when and how Councillor’s records are subject to the Municipal Freedom of Information and Protection of Privacy Act. The Fact Sheet when read in full is contrary to the Plaintiff’s position. The Fact Sheet states, “The courts have found that elected members of a municipal council are not agents or employees of the municipal corporation in all circumstances.” The Information and Privacy Commissioner distinguishes the role of a mayor who is an officer of a municipality as Chief Executive Officer.

[17] The Plaintiff further argues that the factual matrix indicates that the Plaintiff is an employee of the Defendant. In my view, the Plaintiff’s understanding of the factual matrix is incorrect. The Defendant did not have the “power of selecting, controlling, and dismissing” the Plaintiff which is indicative of an employment relationship (Linklater v. Fort Albany First Nations 2004 CanLII 10975 (ONSC) at para 10; Hokanson v. Sheet Metal Workers International Assn, Local 280 (1985 CanLII 690 (BCSC); and B.M. v. Edward Cory Mumford et al., 2000 BCSC 1787). The Plaintiff is elected by the electorate, not selected or hired by the Defendant. When there is a vacancy, it is Council that votes on the appointment of a City Councillor. Remuneration including suspension of remuneration is decided by Council pursuant by-laws passed by Council under the Municipal Act, 2001. The Defendant only administers Council’s decision including administering payment. The Defendant has no authority to control, discipline, or dismiss a City Councillor.

[18] The Plaintiff submits that she was a dependent contractor entitled to reasonable notice or pay in lieu thereof. However, as the Defendant has noted, the Plaintiff does not plead that she was a dependent contractor in her claim.

IV. Conclusion

[19] In conclusion, given that the Plaintiff had a unique role as an elected City Councillor, there is a statutory framework which excludes employees from being elected as a City Councillor, and the factual matrix does not indicate an employment relationship, it is plain and obvious that the Plaintiff was not an employee of the Defendant. Therefore, the Plaintiff’s claim, which is framed in employment, discloses no reasonable cause of action as against the Defendant and also has no reasonable prospect of success in that regard. Therefore, I strike certain paragraphs in the Statement of Claim, as noted above. I do not, though, dismiss the action as against the Defendant. The Plaintiff may amend the Statement of Claim. I award costs in favour of the Defendant on a partial indemnity basis fixed at $18, 398.72.

Shin Doi J.

Date: December 15, 2023