Jones and Attorney-General for Ontario et al.

Indexed as: Jones v. Ontario (Attorney General)

(H.C.J.)

65 O.R. (2d) 737

[1988] O.J. No. 1613

Action No. 1290/88

ONTARIO

High Court of Justice

Reid J.

October 12, 1988.

Constitutional law -- Charter of Rights -- Freedom of expression -- Provincial legislation requiring municipal employee to resign from employment if elected to municipal council not violating freedom of expression -- Municipal Act, R.S.O. 1980, c. 302, s. 38(1) --Canadian Charter of Rights and Freedoms, s. 2(b).

Constitutional law -- Charter of Rights -- Freedom of association -- Provincial legislation requiring municipal employee to resign from employment if elected to municipal council not violating freedom of association -- Municipal Act, R.S.O. 1980, c. 302, s. 38(1) -- Canadian Charter of Rights and Freedoms, s. 2(d).

Constitutional law -- Charter of Rights -- Equality rights -- Provincial legislation requiring municipal employee to resign from employment if elected to municipal council violating equality rights -- Legislation constituting a reasonable limit in light of objective of maintaining effective democratic operation of municipal government -- Municipal Act, R.S.O. 1980, c. 302, s. 38(1) -- Canadian Charter of Rights and Freedoms, ss. 15, 1.

The applicant, a full-time fire-fighter employed by a municipal fire department who intended to run as an aldermanic candidate in the next municipal election, sought a declaration that s. 38(1) of the Municipal Act, R.S.O. 1980, c. 302, was of no force or effect against him because it violated ss. 2(b), (c), (d), 3 and 15 of the Canadian Charter of Rights and Freedoms. Section 38(1) requires a municipal employee to take a leave of absence in order to seek municipal office and, if elected, to resign from municipal employment.

Held, the application should be dismissed.

Section 2(b), (c) and (d) of the Charter did not apply. Section 3 of the Charter is confined expressly to the federal and provincial legislatures. Section 38(1) violates s. 15 of the Charter as it draws a line between those who may run in a municipal election without having to sacrifice their employment and those who may not. However, s. 38(1) can be justified as a reasonable limit under s. 1 of the Charter. The legislation seeks to achieve a collective goal of fundamental importance, i.e., the effective democratic operation of municipal government. It responds to the problem of the conflicts of interest facing a municipal employee in the role of an elected representative and the difficulties that would be created for the municipal council and, in this case, the fire department, if one person were a member of both. The legislation is rationally related to the legislature's goals, it is the least restrictive alternative open to government, and it is a rational and proportional means to achieve it. The Municipal Conflict of Interest Act, 1983, S.O. 1983, c. 8, would not provide an adequate solution to the problem. A municipal employee on municipal council who undertook to abide by the Municipal Conflict of Interest Act, 1983 would seriously impair his ability to perform the councillor's role as he would on numerous occasions be forced to abstain from voting or even participating in much of the business routinely brought before municipal council. His constituents would thus be short-changed and the normal functioning of council would be impaired through frequent abstentions.

Cases referred to

Ontario Public Service Employees Union v. A.-G. Ont. (1988), ante, p. 689; Osborne v. Canada (Treasury Board) (1988), 52 D.L.R. (4th) 241; R. v. Ertel (1987), 35 C.C.C. (3d) 398, 20 O.A.C. 257, 58 C.R. (3d) 252, 30 C.R.R. 209 [leave to appeal to S.C.C. refused 36 C.C.C. (3d) vi]; R. v. Turpin, Siddiqui and Clauzel (1987), 36 C.C.C. (3d) 289, 22 O.A.C. 261, 60 C.R. (3d) 63, 30 C.R.R. 193; Re McKinney and Board of Governors of University of Guelph (1987), 63 O.R. (2d) 1, 46 D.L.R. (4th) 193; Re Fraser and A.-G. N.S. (1986), 30 D.L.R. (4th) 340, 74 N.S.R. (2d) 91, 24 C.R.R. 193

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (c), (d), 3, 15

Constitution Act, 1982, s. 52(1)

Municipal Act, R.S.O. 1980, c. 302, s. 38 (am. 1988, c. 33, s. 14)

Municipal Conflict of Interest Act, 1983, S.O. 1983, c. 8, s. 5

APPLICATION for a declaration that s. 38(1) of the Municipal Act (Ont.) is unconstitutional because of a violation of ss. 2(b), (c) and (d), 3, and 15 of the Canadian Charter of Rights and Freedoms.

Raymond Colautti, for applicant.

M. David Lepofsky and Lori Sterling, for respondent, Attorney-General of Ontario.

REID J.:-- At the outset of this hearing the title of proceedings was amended to substitute the Attorney-General for The Queen.

Mr. Jones is a full-time fire-fighter in the Windsor Fire Department. He intends to run as an aldermanic candidate in the next Windsor civic election. As a property holder and resident of Windsor, he is entitled to run. The only impediment in his way is the Municipal Act, R.S.O. 1980, c. 302 (the Act), which would require him to seek leave of absence in order to run and resign from the fire department if elected. Section 38 of the Act reads:

38(1) The following are not eligible to be elected a member of a council or to hold office as a member of a council:

1. Except during a leave of absence granted under subsection (4), an employee of the municipality or of a local board thereof as defined in the Municipal Affairs Act, except an employee of a school board, and a commissioner, superintendent or overseer of any work, whose appointment is authorized under section 252.

2. A judge of any court.

3. A member of the Assembly as provided in the Legislative Assembly Act or of the Senate or House of Commons of Canada.

4. A Crown employee within the meaning of the Public Service Act who is a deputy minister or who is in a position or classification designated in the regulations made under that Act for the purposes of section 11 thereof.

5. A person who is an undischarged bankrupt or insolvent within the meaning of any bankruptcy or insolvency Act in force in Ontario.

(2) In addition to the persons that are not eligible to be elected a member of a council or to hold office as a member of a council under paragraph 1 of subsection (1), and except during a leave of absence granted under subsection (4), an employee of a metropolitan, regional or district municipality or of any area municipality within that metropolitan, regional or district municipality is not eligible to be elected a member of the council of any area municipality within that metropolitan, regional or district municipality or to be elected a member of the council of that metropolitan, regional or district municipality or to hold office as a member of any such council.

(3) For the purposes of subsection (2), a county that has been restructured to provide that it is composed of area municipalities shall be deemed to be a regional municipality.

(4) Any employee of a municipality or a local board thereof other than a school board and other than a commissioner, superintendent or overseer of any work whose appointment is authorized under section 252 who proposes to be a candidate to hold office as a member of the council of that municipality or the council of a municipality in the circumstances to which subsection (2) applies shall apply to the council of the municipality or to the local board, as the case may be, of which he is an employee for leave of absence without pay for a period,

(a) not longer than that commencing thirty days before the beginning of the period during which candidates may be nominated under the Municipal Elections Act and ending on polling day; and

(b) not shorter than that commencing on the last day of the period during which candidates may be nominated under the Municipal Elections Act and ending on polling day.

and every such application shall be granted.

(5) Where an employee of a municipality or a local board therof other than a school board and other than a commissioner, superintendent or overseer of any work whose appointment is authorized under section 252 who is a candidate for office as a member of the council of that municipality or the council of a municipality in the circumstances to which subsection (2) applies under a leave of absence granted under subsection (4) is elected he shall forthwith resign his position as such employee.

(6) Where an employee of a municipality or of a local board has been granted leave of absence under subsection (4) and was not elected, the period of leave of absence shall not be computed in determining the length of his service for any purpose, and the service before and after such period shall be deemed to be continuous for all purposes.

(7) A person is not ineligible to be elected or to hold office as a member of council only by reason of being a volunteer fire fighter as defined in the Fire Departments Act and subsections (4), (5) and (6) do not apply to a person who is a volunteer fire fighter but who is not otherwise employed by the municipality or a local board thereof.

Mr. Jones submits that s. 38(1) is "an unwarranted infringement of his freedoms of expression, assembly, and association, contrary to sections 2(b), (c) and (d) of the Charter of Rights and Freedoms"; an "unwarranted infringement of his democratic right of candidature under section 3 of the Charter, and an "unwarranted infringement of his right to equality before and under the law ... denying him the right to equal protection and equal benefit of the law as provided by section 15 of the Charter, to the extent that it (s. 38(1)) cannot pass the test outlined in section 1 of the Charter".

These Charter sections read:

2. Everyone has the following fundamental freedoms:

. . . . .

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(d) freedom of association.

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

. . . . .

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Mr. Jones would appear well qualified as a candidate. He has an impressive record. He is an ordained Minister and Pastor of the African Methodist Episcopal Church with the charge of some 45 families. He was the first black fire officer in the Windsor department. He has risen from probationary status to his present position of "Lieutenant and qualified Captain". He is the (voluntary) public relations officer of the Windsor Professional Firefighter's Association. In 1983 he was elected as a trustee of the Windsor Board of Education. On re-election in 1986 he became vice-chairman, and in 1987 chairman. He has so co-ordinated his engagements that he has never been absent from duty at either the fire department or the board of education.

His concern is that if required to obtain leave he will lose his seniority with the fire department. Beyond that, if he must resign if elected, he will lose his income from the department and have to seek other employment for as a municipal councillor he would be remunerated on only a part-time basis. If elected, he would have to resign from the board of education and would lose his stipend from that office. He testifies that his income would be reduced to one third of its present level. These are grave concerns.

The relief he seeks is specific and confined to his case. It is for a declaration that s. 38(1) of the Act "is of no force and effect as against him by reason of section 52(1) of the Constitution Act, 1982". That section reads:

52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

There is no direct precedent for this case. Re Fraser and A.- G. N.S. (1986), 30 D.L.R. (4th) 340, 74 N.S.R. (2d) 91, 24 C.R.R. 193 (S.C.T.D.), struck down legislative restrictions on provincial civil servants engaging in partisan political activities which are not in issue. Legislation similar to s. 38 has been upheld with respect to both provincial and federal public servants: see Ontario Public Service Employees Union v. A.-G. Ont. (unreported, August 5, 1988, per Eberle J. [now reported ante, p. 689 (H.C.J.)]) and Osborne v. Canada (Treasury Board) (unreported, July 15, 1988, F.C.A. [now reported 52 D.L.R. (4th) 241]).

Sections 2 and 3

Section 3 of the Charter is confined expressly to membership in the federal and provincial legislatures. In my opinion, it has no application to this case. Nor do I think that s. 2(b), (c) and (d) apply.

Section 15

Section 15, however, requires consideration. Section 38 clearly draws a line between those who may run in a municipal election without having to sacrifice their employment and those who may not. In my opinion, that is discrimination: see R. v. Ertel (1987), 35 C.C.C. (3d) 398, 20 O.A.C. 257, 58 C.R. (3d) 252 (Ont. C.A.); R. v. Turpin, Siddiqui and Clauzel (1987), 36 C.C.C. (3d) 289, 22 O.A.C. 261, 60 C.R. (3d) 63 (Ont. C.A.), and Re McKinney and Board of Governors of University of Guelph, (Ont. C.A., December 10, 1987, unreported [now reported 63 O.R. (2d) 1, 46 D.L.R. (4th) 193]).

Section 1

Is s. 38(1) a reasonable limitation justifiable under s. 1 of the Charter? Section 1 states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The issue of political neutrality of the bureaucracy has been studied, if not to death, at least to apparent exhaustion. I was referred to numerous reports, studies and submissions. In light of those, I wonder if anything new could be found to say on the subject. They include the 1949 report of the "Committee of the Political Activities of Civil Servants" (the Masterman Report, London, England; Her Majesty's Stationery Office); the 1978 report of the "Committee on Political Activities of Civil Servants" (the Armitage Report, London, England; Her Majesty's Stationery Office); the 1986 report of the Ontario Law Reform Commission on "Political Activity, Public Comment and Disclosure by Crown Employees"; Professor Kenneth Kernaghan's paper on "Politics, Policy and Public Servants; Political Neutrality Revisited" (1976), 19 Canadian Public Administration; the report of the "Committee on Conflicts of Interest of the Ontario Legislature" of December, 1986 (the Callaghan Committee) and others. They make various recommendations. The Callaghan Committee, for example, recommended that municipal employees not be disqualified from sitting on council. That recommendation was strongly opposed by the Ontario Municipal Association. It is clear that the Ontario Legislature rejected it.

The Attorney-General's opposition to this application is grounded both in principle and in practice. The principle is our long tradition of political neutrality of the bureaucracy. The practice argument rests on the difficulty arising from conflicts of interest facing a civic employee in the role of elected representative, and on the difficulties that would be created for both the municipal council and the fire department if one person were a member of both.

In support of these submissions Mr. Lepofsky relies on three affidavits, on all of which there has been cross-examination. The first is that of Geroge Manios, a policy advisor in the local government organization branch of the Ministry of Municipal Affairs of Ontario, filed "to advise the court about the policy reasons for the disqualifications of municipal employees from service on municipal council under s. 38 of the Act". His affidavit sets out the history of s. 38(1) of the Act from the 1970 report of the "Committee on Municipal Elections", which recommended that municipal employees should be disqualified from serving on municipal councils. He summarizes his evidence in the following terms:

(a) The statutory requirement that municipal employees take a leave of absence when campaigning for membership on municipal council and resign their municipal employment if elected serves several public policy objectives which are of great importance in a free and democratic society.

(b) These requirements promote the goals of having a politically neutral public service.

(d) These requirements help ensure that all electoral wards have fair and equal democratic representation during council deliberations.

(e) These requirements promote the functioning of the municipal council as the public's watchdog on the operations of the municipal government.

(f) These requirements promote the effective operation of the municipal public service.

(g) The problems which would be posed if municipal employees were able to concurrently serve on council would be compounded if more than one employee were elected to council at the same time.

(h) Section 38(1) of the Municipal Act uses the most appropriate means for promoting the foregoing important policy objectives. [p. 153-154, vol 1, supplementary record]

The second affidavit is that of T.W. Lynd, City Clerk of Windsor. It sets out Mr. Lynd's conclusions based on his review of the agendas for the meetings of the Windsor City Council for 1987, all of which he attended. He states that "of the total business dealt with by matters of budget, labour relations, personnel matters, fire department business and other Council business on which the fire department would submit reports or have some interest, totals 29 percent". He gives the following breakdown for that figure:

(a) 24% municipal budget (including operational and capital budget and excluding questions of revenue acquisition such as tax, debentures, etc.)

(b) 3% labour relations and personnel matters (including collective bargaining questions, all forms of employment policy and practices and all other personnel matters)

(d) 1% all other matters coming before Council in which the fire department may have an interest or may have input (including equipment tenders for the fire department and all matters on which the fire department has made comment or submissions for Council).

He goes on to say:

The foregoing figures are conservative estimates. I am satisfied that my review of the Council's business has been sufficiently detailed to ensure the reliability of these figures.

Based on my work with Council over the past 10 years, it is my evidence that the foregoing figures are fairly representative of the breakdown of the annual business and proceedings of the Windsor City Council in recent years.

Mr. Manios agrees with Mr. Lynd. In para. 28 of his affidavit, he states:

Taken together, these areas of actual and perceived conflicts of interest comprise a substantial portion of the important business of the municipal council. In this regard, I have read the affidavit of Mr. Thomas Lynd, filed in this proceeding. A municipal councillor/employee is thus in a different position, from the perspective of municipal elections policy, than is a private businessman or businesswoman who sits on council and who may only be required to disqualify themselves from a small number of council votes.

The third affidavit is that of Alan L. Dupuis. He is Chief of the Fire Advisory Service Section of the Office of the Ontario Fire Marshal, a branch of the Ontario Ministry of the Solicitor-General. His purpose is "to advise [the court] about the implications which would arise if a fire fighter, employed by a municipal fire department, were permitted to serve on municipal council while still employed by the fire department, whether actively or on a leave of absence". He summarizes his evidence as follows:

(a) From the perspective of the effective operations of a fire department, it is appropriate to require a fire fighter take a leave of absence while campaigning for municipal council and to require them to resign from the department if elected. Several serious problems can eventuate if an arrangement existed whereby a fire fighter were concurrently a member of the council of the same municipality.

(b) Fire departments are organized on a military model. This arrangement whereby a fire fighter was concurrently a member of the municipal council could create problems for the proper administration of orders and discipline by superior officers.

(c) Dismissed fire fighters have a statutory right to a hearing before council if subjected to disciplinary dismissals. This arrangement would impair the council's ability to objectively review a disciplinary dismissal of the employee/ councillor.

(d) This arrangement could interfere with the decisionmaking of the employee's superior officers regarding promotions and work assignments.

(e) This arrangement could produce problems for the collective bargaining process between the council and the fire fighters' union.

(f) This arrangement could place the fire chief in a difficult position in his dealings with council, particularly in the context of his advice-giving function.

(g) This arrangement would be inconsistent with the requirement that fire fighters, like other municipal public servants, be and be seen to be politically neutral.

(h) This arrangement would pose additional problems for fire prevention officers who are responsible for enforcing fire prevention laws in a fair and even-handed manner.

Mr. Jones seeks to meet those objections. In a further affidavit filed, he swears that:

2. In the event that I am elected as a Councillor representing the Corporation of the City of Windsor, I will undertake to do the following, effective the day I commence my office as Councillor:

i) I agree not to assist nor interfere in any manner, in the collective bargaining process between the Corporation of the City of Windsor and the City of Windsor Fire Department, with whom I am and will remain employed;

ii) I agree to withold applying for any promotions further than that of District Chief, which position remains in the collective bargaining unit;

iii) I agree to abide by the provisions of the Municipal Conflict of Interest Act, 1983, S.O. 1983, Chapter 8, as amended;

iv) I agree to withold from attempting to influence my fellow Councillors in relation to any aspects of policy-making related to the City of Windsor Fire Department.

3. I agree to the above referenced undertakings and will continue to abide by them during such time or times as I remain an elected Councillor on the City Council for the Corporation of the City of Windsor.

The Municipal Conflict of Interest Act, 1983, S.O. 1983, c. 8, (the Conflict Act) referred to is an Ontario statute that applies to municipal councillors. It is enforced through private civil action. Section 5 provides:

5(1) Where a member, either on his own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, he,

(a) shall, prior to any consideration of the matter at the meeting, disclose his interest and the general nature thereof;

(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and

(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.

(2) Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration.

(3) Where the interest of a member has not been disclosed as required by subsection (1) by reason of his absence from the meeting referred to therein, the member shall disclose his interest and otherwise comply with subsection (1) at the first meeting of the council or local board, as the case may be, attended by him after the meeting referred to in subsection (1).

Notwithstanding Mr. Colautti's capable and vigorous attack on it, I am impressed with the evidence on which the Attorney-General relies. It seems to me to be rational and balanced. While the deponents are entitled to be regarded as expert in their respective fields in light of their training and experience, it seems to me that they say nothing more than one would expect most intelligent and informed observers to say. They identify and confront the crux of the problem, created, as Mr. Manios says, by the "same person attempting to fill the role of employer and employee at the same time".

Numerous conflicts of interest are bound to arise. While Mr. Jones undertakes to abide by the Conflict Act, that is no more than the law requires. By obeying it, he would seriously impair his ability to perform his councillor's role. It seems inevitable that he would on numerous occasions be forced to abstain from voting, or even participating, in much of the business routinely brought before a municipal council. That would be short-changing his constituents. That could well be less than satisfactory to them but would also, no doubt, be unsatisfactory to someone as obviously conscientious as Mr. Jones.

Beyond that, the Conflict Act, like any other statute, is open to interpretation. Others may hold different views from Mr. Jones of its application. The more conscientious he is in seeing to avoid conflict, or even the appearance of it, the less able he would be to perform his council duties. Should he, however, insist in participating in a matter when another councillor, or even any other person, thinks he should not, he runs the risk of embarrassment at the least and disqualification at the most. While that is a risk faced by all councillors, his exposure to it would be abnormal, and a deterrent to the performance of his councillor's function. It seems inevitable that he would be in a bind.

If the discussion is widened to include the prospect of other municipal employees being elected as councillors, the impairment of the normal functioning of council through frequent abstentions is exacerbated. While the prospect is hypothetical, a council with a majority of civil employees could be virtually disabled.

The Conflict Act would not, therefore, be a cure. Some other means of limitation is required. On the evidence before me, I am satisfied that s. 38(1) seeks to achieve a collective goal of fundamental importance which is pressing and substantial, i.e., the effective democratic operation of municipal government; it is rationally related to that goal; it is the least restrictive alternative open to government, and it is a rational and proportionate means to achieve it. I am satisfied that s. 38(1) is a reasonable and justified limitation within s. 1 of the Charter.

The application is dismissed. The Attorney-General does not seek costs.

Application dismissed.