Jones v. Ontario (Attorney General);
Rheaume v. Ontario (Attorney General)
Jones v. Attorney General of Ontario and the City of
Windsor; Rheaume and Ontario Nurses Association v.
Attorney General of Ontario
 O.J. No. 163
7 O.R. (3d) 22
89 D.L.R. (4th) 11
54 O.A.C. 211
39 C.C.E.L. 238
9 M.P.L.R. (2d) 87
31 A.C.W.S. (3d) 560
Action Nos. 656/88 and 806/89
Court of Appeal for Ontario,
Dubin C.J.O., LacourciËre and Grange JJ.A.
January 31, 1992
Raymond G. Colautti and Gregory A. Campbell, for Ronald Jones, applicant/appellant.
Roy E. Stephenson and Robert K. Stephenson, for Elizabeth Rheaume, applicant/appellant.
M. David Lepofsky, for Attorney General of Ontario, respondent.
1 THE COURT:--These two appeals, in which the constitutional validity of s. 38 [am. 1988, c. 33, s. 14; am. 1990, c. 28, s. 101] of the Municipal Act, R.S.O. 1980, c. 302 (now R.S.O. 1990, c. M.45, s. 37) is challenged, were heard together because of the similarity of the issues.
THE JONES APPEAL
2 In this appeal, the appellant, a full time firefighter in Windsor, claimed that s. 38 of the Municipal Act, which places limitations on the ability of employees of the municipality or of a local board to serve as members of council, contravened his Charter rights and freedoms guaranteed by s. 2( b) and (d), and his democratic rights under s. 3. In addition, he claimed that the restrictions denied him the right to equal protection and equal benefit of the law guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms. The impugned section requires that a municipal employee take a leave of absence while running for municipal office and resign his or her job if elected. Reid J. concluded that ss. 2 and 3 of the Charter had no application in this case (reported (1988), 65 O.R. (2d) 737, 53 D.L.R. (4th) 273 (H.C.J.)).
3 The appellant's notice of appeal and the appellant's factum argued solely for an infringement of s. 15(1) and did not quarrel with the ruling concerning ss. 2 and 3 of the Charter. These sections were not specifically addressed in oral argument, counsel apparently relying on submissions made in the Rheaume appeal. We will therefore limit our consideration in this appeal to the argument based on s. 15; the question of violation of ss. 2 and 3 will be dealt with only in the Rheaume appeal.
4 It is sufficient to say in this appeal that we agree with Reid J. that there is no infringement of ss. 2( d) and 3. Furthermore, assuming that the restrictions placed on the candidacy of municipal employees are substantial enough to constitute an abridgement of their freedom of expression under s. 2(b ), we are satisfied that the requirements of s. 38 of the Municipal Act satisfy the test set out in R. v. Oakes,  1 S.C.R. 103, 26 D.L.R. (4th) 200, and are reasonably and demonstrably justified in a free and democratic society under s. 1 of the Charter .
5 The thrust of the appellant's argument is that s. 38 bars an entire class of persons from political activity on the grounds of their classification as "municipal employees", without consideration of the individual employee's qualifications, and that the section is therefore discriminatory and infringes s. 15 equality rights.
6 On the basis of the earlier pre-Andrews case law interpreting s. 15, Reid J. concluded that s. 38 was discriminatory, but that it represented a reasonable and justifiable limitation within s. 1 of the Charter.
7 The Supreme Court of Canada in Andrews v. Law Society of British Columbia ,  1 S.C.R. 143, 56 D.L.R. (4th) 1, rejected the similarly situated test relied on by Reid J. and interpreted s. 15 so that a violation thereof required a discriminatory distinction based on grounds relating to personal characteristics of the individual or group, and that the discrimination involve an enumerated or analogous ground. In R. v. Turpin,  1 S.C.R. 1296, 48 C.C.C. (3d) 8, the test was expanded so that individuals alleging discrimination had to bring themselves within "a discrete and insular minority", defined by shared personal characteristics, and presumably be an historically disadvantaged group in Canadian society within the contemplation of s. 15.
8 Municipal employees constitute a heterogeneous group with disparate characteristics and they are not historically disadvantaged. They do not belong to groups or classes enumerated in s. 15 or to groups which can be considered analogous to the enumerated groups. The purpose of s. 38 is clearly to promote political neutrality of the municipal public service and to prevent conflicts of interest. In our view s. 38 does not infringe the appellant's right to equality before or under the law as guaranteed by s. 15. Accordingly, there is no infringement of s. 15 to be justified under s. 1 of the Charter.
9 Accordingly, the Jones appeal is dismissed.
THE RHEAUME APPEAL
10 The appellant is a registered nurse employed by the Sudbury and District Health Unit, who sought a declaration that s. 38 of the Municipal Act is inconsistent with ss. 2(b) and (d ), 3 and 15(1) of the Charter and accordingly of no force and effect. The impugned requirement of s. 38 is that a municipal employee take a leave of absence while running for municipal office and resign his or her job if elected.
11 Unlike his colleague in the earlier Jones case, McKeown J. (whose decision is reported (1989), 70 O.R. (2d) 602, 63 D.L.R. (4th) 241) had the benefit of the Supreme Court decisions in Andrews and Turpin. Although he was of the view that a person's employment status could be analogous to an enumerated ground, he could find no violation of s. 15 as defined in Turpin. In our opinion, for the reasons given by this court in Jones, s. 38 does not infringe the appellant's right to equality before and under the law guaranteed by s. 15.
Sections 2 and 3 of the Charter
12 McKeown J. held that running for municipal office is an activity that is a form of expression within the meaning of s. 2( b) of the Charter as interpreted in Irwin Toy Ltd. v. Quebec (Attorney General) ,  1 S.C.R. 927, 58 D.L.R. (4th) 577, but that the government's purpose in enacting s. 38 was not to restrict the content of expression, but to protect the democratic process by preserving the impartiality of the public service. We agree. He also concluded that the effect of the impugned section did not restrict the appellant's freedom of expression, inasmuch as the municipal employee is entirely free to speak and campaign, and that the economic effect of the restriction is not so substantially burdensome as to result in a violation of the section. It is true that the appellant's freedom to engage in expressive activity in the form of candidacy to municipal office is subject to restrictions which do not apply to other candidates. However, in our view, assuming that the restrictions placed on the candidacy of municipal employees are substantial enough to constitute an abridgement of their freedom of expression, we are satisfied that the requirements of s. 38 of the Municipal Act satisfy the test set out in Oakes and are reasonably and demonstrably justified in a free and democratic society under s. 1 of the Charter. We agree with the reasons of McKeown J., who considered the application of s. 1 even though he had found no violation of the appellant's Charter rights.
13 As to the freedom of association protected by s. 2(d) of the Charter , the appellant has every freedom to associate with others in her campaign but she has no constitutional right to be associated with municipal council as an elected member. We agree with McKeown J. that there is no breach of s. 2( d). We also agree that s. 3 of the Charter, the right of a citizen, inter alia, to vote or to be qualified for membership in the House of Commons or in a legislative assembly, does not apply to municipal councils.
14 Accordingly, the Rheaume appeal is dismissed.
DISPOSITION OF COSTS
15 The Attorney General, quite properly in view of the important issues involved in both appeals, has not asked for costs. The City of Windsor was a party in the Jones appeal, but was not separately represented and did not file a factum. Accordingly, both the Jones and Rheaume appeals will be dismissed without costs.