This is a brief blog post, I’m not going to dive too much into the background or the controversy that is the basis of the original report.
Ontario’s Divisional Court has quashed a portion of a July 2023 report by Chatham-Kent Integrity Commissioner Mary Allen Bench, ruling that part of her findings of misconduct against Councillor Rhonda Jubenville were unreasonable in law.
Bench’s 47-page report can be read here.
The Court ruled IC Bench’s interpretation of “improper use of influence” was unreasonable in law.
IC Bench determined that Section 10 of Chatham-Kent’s Code of Conduct prohibiting “improper use of influence” prohibits council members from continuing to advocate a position once there is a council decision made on a matter.
The Court removed the emotion from the decision and focused upon the legality of this broad prohibition. Writing for the three-judge panel is Justice David L. Edwards:
[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.
The Court upheld the Integrity Commissioner’s findings of fact regarding Section 15 of Chatham-Kent’s Code of Conduct.
Section 15 deals with “discreditable conduct” and the Court agreed that Bench’s findings that Jubenville’s social media commentary regarding the 2SLGBTQIA+ community caused harm in the community were reasonable.
The Underlying Issue: Flag Protocols and the Pride Flag
Chatham-Kent’s mayor ignored a request from Right to Life Kent to raise a flag. The Mayor’s Office simply never responded to the request.
Shortly thereafter, Jubenville brought a motion that Chatham-Kent only display the Canadian, Ontario, and Chatham-Kent flags on municipal property. It was defeated 5-12. A follow-up motion for the municipality to develop a flag-raising policy passed 14-3.
During this time period, IC Bench wrote that “matters posted on Councillor Jubenville’s social media concerning flag raising and referencing a local drag show and comments about pedophilia and pedophiles at drag shows made by Councillor Jubenville were discussed.”
Jubenville’s social media included posts opposing Drag Queen Story Time programming in elementary schools, and the flying of the Canadian flag and Pride flag on the same pole, writing that federal government protocol requires one flag per pole.
Bench’s report states the federal government protocol cited by Jubenville only applies to federal government buildings.
Bench determined that Jubenville’s commentary and posts were targeted against the 2SLGBTQIA+ community, they were causing harm, and this violated the Code of Conduct.
Furthermore, Bench ruled that Jubenville “has abused, bullied and intimidated members of Council and the individual complainants” because she posted to social media about the IC investigation in a manner that caused her supporters to engage in conduct against the council and complainants.
Bench recommended the maximum penalty available be applied against Jubenville.
In August 2023, the Council voted 13-3 to suspend Jubenville’s remuneration for 90 days.
IC Process and Confidentiality Upheld
The Court upheld the standard practice of Ontario’s municipal integrity commissioners to not identify complainants and witnesses unless necessary.
Many councillors found to have committed misconduct under the Municipal Act have attempted to argue that natural justice requires they be provided with the opportunity to be aware of all materials and information known to Integrity Commissioners.
Each time this has been argued in Court, the argument has been unsuccessful.
Council Will Need to Vote on Reconsidered Penalty
Here’s where things get interesting.
Bench has been ordered by the Divisional Court to reconsider the penalty recommendation due to the quashing of the Section 10 violations.
The Court upheld the Section 15 violations, which are the serious offences at issue.
Bench’s updated penalty recommendation will have to be voted upon by the Council.
The Council must be seen to be reconsidering its original 90-day penalty decision. It need not change it; however, it needs to act with a potential second Divisional Court appeal in mind.
Codes of Conduct Must Be Reasonable
Ontario’s municipalities need to take heed that while councils may bind themselves to a code of conduct which limits some expressive activities by council members, provisions regarding “respect” for council decisions should limit themselves to actions which interfere with the implementation of said decisions.
Production Details
v. 1.0.0
Published: August 2, 2025
Last updated: August 2, 2025
Author: Joey Coleman
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v. 1.0.0 original version