FACTS: G was a municipal councillor of the Corporation of the Municipality of Mississippi Mills for a four-year term ending October 24, 2022. In November 2021, the Municipal Council enacted a COVID-19 vaccination policy requiring all councillors, employees, volunteers, contractors and students to be fully vaccinated. G was the sole dissenting vote and, through her prepared statement, broadly invoked Charter rights and “constitutional freedoms” without specifying which rights she was relying on.
By May 2022, G was still in violation of the policy. At a May 3, 2022 Council meeting, a motion to make vaccination merely recommended for councillors (rather than required) was defeated. On May 17, 2022, G was ordered to apologize for being in violation of the policy, refused to do so, and was ordered to leave the Council chamber.
A complaint was referred to the Municipality’s Integrity Commissioner. During the investigation, the Commissioner asked G to confirm whether she had been vaccinated when she attended Council meetings in person. Through counsel, the applicant refused to answer, citing privacy protections under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. Freedom of expression under s. 2(b) was never raised before the Commissioner.
The Integrity Commissioner drew an adverse inference from G’s refusal to confirm her vaccination status, found that she had violated the Code of Conduct, and recommended the maximum penalty of a 90-day suspension of remuneration. Council accepted the Commissioner’s conclusions and recommendation. More than a year after filing her original application for judicial review (which had been framed around ss. 7 and 8), G amended her application to allege for the first time that the relevant Charter right was s. 2(b) freedom of expression.
DECISION: Application dismissed (per Smith J., Nakatsuru and O’Brien JJ. concurring)
The parties agreed on the applicable standards of review. Correctness review applies to whether the Charter rights were engaged, the scope of their protection, and the appropriate framework for analysis, pursuant to York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22. Reasonableness review applies to all other aspects of the decision, including whether the balancing of Charter values against the relevant statutory objectives was proportionate, pursuant to the Doré framework.
Although the Integrity Commissioner never expressly referenced s. 2(b), he was not required to identify the applicable Charter right by name. It was sufficient that he understood “the relevant values which underpin that right and the link between the value[s] and the matter under consideration”: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories, 2023 SCC 31, at para. 66. The Court concluded that this case involved overlapping Charter protections. The values underlying ss. 7 and 8 (individual autonomy, personal privacy, and the right to silence) were sufficiently similar to—and largely indistinguishable from—the values underpinning G’s s. 2(b) right to “say nothing” as she framed it in court. Following Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, the Court found that the Commissioner’s consideration of the ss. 7 and 8 values meant that the s. 2(b) values had been effectively considered, even though the issue was never put to him.
The Commissioner’s balancing of the relevant Charter values against the statutory objectives was proportionate and reasonable. He took the least intrusive steps available to him—asking only for an oral confirmation of vaccination status rather than demanding documentary proof or summonsing the applicant to an interview—and weighed this limited intrusion against the public health importance of the vaccination policy and the general importance of elected officials complying with the Code of Conduct. That the Commissioner’s reasons did not expressly address freedom of expression did not render the balancing unreasonable, given that the argument was never placed before him.
The 90-day suspension was reasonable. Penalty decisions attract a high degree of deference. The Commissioner’s recommendation rested on dual findings: that G showed no respect for the vaccination policy or Council, and that she failed to cooperate with the investigation. His reference to a lack of remorse was simply an observation that there was no evidence of a mitigating factor, not an impermissible basis for the maximum penalty. The maximum penalty is not reserved for cases of sexual misconduct, and has been upheld in other contexts. G attended Council meetings in person while apparently unvaccinated during a global health emergency, thereby potentially endangering her fellow councillors, staff, and members of the public.
G was not a public interest litigant; the proceedings related primarily to her personal interest in overturning findings made against her personally. Partial indemnity costs of $7,500 (all inclusive) were awarded to the respondents.
COMMENTARY: This decision is a useful illustration of how the Doré/Loyola framework operates in practice following the Supreme Court’s clarification of the standards of review in York Region District School Board. Three aspects are noteworthy.
First, the Court’s application of the “overlapping Charter protections” principle from Trinity Western University is significant. The decision confirms that an administrative decision-maker need not identify the precise Charter right engaged to satisfy the correctness standard—provided that the values underlying the relevant right were in fact considered. This is a practical and context-sensitive approach: here, the Commissioner was never asked to consider s. 2(b) at all, and the Court declined to fault him for failing to expressly address a right that G herself did not invoke until well after the administrative proceedings concluded. Decision-makers operating in employment and regulatory contexts, where Charter arguments may be raised in a variety of formulations by different counsel, will find some comfort in this approach.
Second, the decision provides a helpful illustration of how Vavilov’s principle of “responsive reasons” interacts with the Doré framework. The Court held that a decision-maker’s reasons should not be assessed against a standard of perfection, and that the reviewing court must account for the submissions actually placed before the decision-maker. Where a Charter argument is raised for the first time on judicial review, the failure of the decision-maker’s reasons to address that argument expressly will not, on its own, render the decision unreasonable. This is a sensible constraint on the scope of judicial review, and one that prevents parties from strategically reframing their cases on judicial review in ways that create artificial unreasonableness.
Third, the decision has implications for municipal integrity commissioners and the councillors who appear before them. The Court confirmed that elected officials who participate in regulated activity—municipal governance—have diminished expectations of privacy in the context of that activity. It also confirmed that those who run for municipal office assume the obligation to comply with the relevant municipality’s code of conduct. Integrity commissioners conducting investigations involving potential Charter dimensions would be well-advised to carefully consider whether any Charter rights or values are engaged on the facts, even if the parties do not expressly invoke them. While the Court’s adoption of the “overlapping protections” principle mitigated the consequences of the Commissioner’s silence on s. 2(b) in this case, there is no guarantee that a different set of facts would yield the same result—particularly where the values underlying the unaddressed right cannot readily be characterized as indistinguishable from those that were considered.
Finally, and more broadly, this decision sits comfortably alongside York Region District School Board and Commission scolaire as part of the emerging body of post-Vavilov jurisprudence clarifying the relationship between Charter rights and administrative decision-making. Read together, these decisions confirm: (i) correctness review applies to whether a Charter right is engaged, the scope of its protection, and the appropriate framework for analysis; (ii) reasonableness review applies to the proportionate balancing of Charter values and statutory objectives under Doré; and (iii) decision-makers need not expressly name the applicable Charter right provided they have genuinely engaged with the underlying values. What remains to be worked out—and what none of these decisions fully resolves—is how to draw the line between cases where overlapping values are “largely indistinguishable” (as here) and cases where they are not, and where the failure to expressly consider a specific Charter right will prove fatal to the decision under review.