Occasionally regulators have to address breaches of their Code of Conduct by a Board or Council member. Where the concerns amount to allegations of wrongdoing (as opposed to objective facts such as missing a specified number of Board meetings) an investigation and adjudication is often necessary. Guidance as to the procedures and degree of neutrality required of Board or Council members in such proceedings has been provided in Chiarelli v. Ottawa (City of), 2021 ONSC 8256, https://canlii.ca/t/jlh5f. While that case relates to a municipal council, some analogies are likely to apply to regulatory Boards or Councils.
In that case serious allegations of sexual harassment were made by three women who had applied for a job with the Councillor. The City’s Integrity Commissioner investigated the allegations, made a report finding that the allegations were substantiated and recommended the maximum sanction (270 days of forfeited pay). The Council accepted the report and imposed the recommended sanction. On judicial review, the Councillor raised a number of issues.
One was that the Commissioner demonstrated an appearance of bias. The Court held that it should not consider the issue because it was not raised at the time. The Court said:
This is no mere technicality. An allegation of bias impugns the integrity and conduct of the person against whom it is made. That person is not a party to the underlying conflict, and the allegation, by its nature, seeks to cast a neutral party into the conflict itself. That person is entitled to respond to the allegation and, where the allegation of bias is rejected, to explain why they are not biased in fact, and why their conduct does not give rise to a reasonable apprehension of bias. Usually, this is the only chance the person has to respond to serious allegations made against them. If this issue is then pursued on judicial review, it is the task of this court to review the decision on the bias issue – a task we cannot perform since the issue was not raised with the Commissioner and so he has not made a decision on the issue that we can review.
The Court, however, went on to review the concerns and found that they were not established.
The Councillor experienced a number of serious health issues. The Councillor argued that the Commissioner should not have proceeded with the investigation during the period of illness. The Court found that the Commissioner had accommodated the Councillor’s health condition throughout the process including by providing a series of deferments to the Councillor and modifying the manner in which the Councillor could respond to the investigation. The Commissioner only proceeded to finalize the report after it was clear that the Councillor had no intention of participating in the investigation.
However, the Court did find that the City Council, itself, had demonstrated an appearance of bias. The Court indicated that because of the Council’s political role, it was not governed by the same principles of neutrality as purely adjudicative bodies like courts (or, we would suggest, discipline committees). Commenting on concerns of significant public interest including the reputation of the City and reiterating the Council’s commitment against sexual harassment was permissible so long as the Councillors did not demonstrate a closed mind when it performed its adjudicative role. While regulatory Boards or Councils have a policy, rather than a political, role, a similar test would likely apply to them. In this case, the statements made by some Councillors were so strong, were accompanied by a refusal of some of them to sit at the same meeting table as the Councillor in issue, and where there was no public self-reminder by the Councillors that their adjudication required an open mind in reviewing the evidence indicated that the closed mind criteria had been met. The Court set aside the decision of the Council and substituted its own decision (which, in fact, resulted in the same outcome).
Thus, Code of Conduct proceedings for regulatory Board or Council members are not the same as discipline proceedings for practitioners. They do, however, require a minimal level of objectivity.