Executive Summary: Key Legal and Evidentiary Issues

• Cynthia Guerard, a municipal councillor, was found by the Integrity Commissioner to have violated the Municipality of Mississippi Mills' Code of Conduct by failing to comply with its COVID-19 vaccination policy.
• Council accepted the Commissioner's findings and imposed the maximum penalty — a 90-day suspension of the applicant's remuneration.
• Central to the application was whether the Integrity Commissioner and Council adequately considered and balanced the applicant's right to free expression under s. 2(b) of the Charter against the statutory objectives of the Code of Conduct and the vaccination policy.
• Raised for the first time on judicial review, the applicant's freedom of expression argument — specifically her right to say nothing — had not been put before the Commissioner or Council during the investigation.
• The court found that the values underlying ss. 7 and 8 of the Charter, which the Commissioner did address, were sufficiently similar to those underlying s. 2(b), such that the relevant Charter values had been proportionately balanced.
• Penalty was upheld as reasonable given the applicant's non-compliance, failure to cooperate with the investigation, and absence of any mitigating circumstances or remorse.

Facts of the case

Cynthia Guerard served as a township councillor of the Municipality of Mississippi Mills for a four-year term ending October 24, 2022. On November 2, 2021, Council enacted a COVID-19 vaccination policy requiring all councillors, employees, volunteers, contractors, and students completing placements to be fully vaccinated. The policy further required proof of full vaccination to be provided to the Chief Administrative Officer (CAO) by no later than November 30, 2021. Ms. Guerard was the lone dissenting vote when the policy was approved by a vote of 6-1. She prepared a statement — read on her behalf by the clerk due to a poor internet connection — objecting broadly to the policy on Charter grounds, though she did not specify which Charter rights she was invoking.

Six months later, at the Council meeting of May 3, 2022, the mayor noted for the record that Ms. Guerard, who was present in Council chambers, was in violation of the policy. Ms. Guerard did not dispute this. A motion she brought to refer outstanding questions about the policy to the CAO received no seconder and was defeated. A proposed amendment to make vaccination merely recommended — rather than required — for councillors was also defeated by a vote of 4 to 3. At a subsequent meeting on May 17, 2022, the mayor ordered Ms. Guerard to apologize for being in violation of the policy; she refused and was then ordered to leave the Council chamber, which she did.

Policy terms at issue

The vaccination policy opened by affirming the Municipality's commitment to workplace safety and described itself as a temporary measure to reduce the risks of COVID-19. It expressly required all councillors, employees, volunteers, contractors, and students completing placements to be fully vaccinated. The policy also required the CAO to collect proof of vaccination from those covered, including councillors, and included a vaccination status form for non-employees — a category that includes councillors — to complete. One ambiguity in the policy was that it did not unambiguously require councillors to provide proof of vaccination in the same terms as employees. The Integrity Commissioner addressed this by concluding that the policy would be rendered unworkable if councillors were not required to disclose their vaccination status, and that this could not have been Council's intention.

Court's reasoning and analysis

A complaint was referred to the Municipality's Integrity Commissioner, Mr. Tony Fleming, who investigated the matter and sought submissions from Ms. Guerard through her then counsel, William Hunter. Ms. Guerard's submissions argued, among other things, that she was not required to submit proof of vaccination as she was not an employee, that the policy had become null and void when the province rescinded its mandatory vaccination requirements on March 1, 2022, and that the Personal Health Information Protection Act, 2004 (PHIPA) entitled her to refuse to disclose her vaccination status. When asked directly whether she was vaccinated when she attended Council meetings on May 3 and 17, 2022, she declined to answer. The Commissioner drew an adverse inference from her refusal, concluding she was likely unvaccinated, and found that she had violated s. 11(c) of the Code of Conduct (requiring compliance with all municipal policies) and s. 30(a) (prohibiting circumvention of policies).

On judicial review, Ms. Guerard raised for the first time the argument that the decision infringed her right to free expression under s. 2(b) of the Charter — specifically, her right to say nothing. The Divisional Court applied a correctness standard to determine whether Charter rights were engaged and considered, and a reasonableness standard to assess the proportionality of the balancing exercise undertaken.

The court found that, although the Commissioner did not explicitly address s. 2(b), the Charter values he did consider — autonomy, privacy, and the right to silence under ss. 7 and 8 — were sufficiently similar to, and largely indistinguishable from, the values underlying the right to free expression as it arose in this case. Citing the concept of "overlapping Charter protections" from Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, the court concluded that the Commissioner had effectively addressed the core of the applicant's complaint. The court further held that the Commissioner had engaged in a proportionate balancing exercise: he took the least intrusive steps available, declined to require proof of vaccination or issue a summons, and weighed the limited intrusion on the applicant's privacy against the public health importance of the vaccination policy and the need for compliance with the Code of Conduct.

On the question of penalty, the court held that the Commissioner's recommendation of the maximum 90-day suspension was reasonable. It rejected the applicant's submission that this penalty was reserved exclusively for cases of sexual misconduct, noting that a 90-day suspension had been upheld in other contexts, including a case involving objectionable public statements (Robinson v. Pickering, 2026 ONSC 451). The court found that the Commissioner's dual findings — that the applicant had shown no respect for the policy or the direction of Council, and that she had failed to cooperate with the investigation — were supportable on the evidence, and that the absence of any mitigating circumstances or remorse left no basis to interfere with the penalty.

Ruling and overall outcome

The Divisional Court, per Smith J. (with Nakatsuru J. and O'Brien J. concurring), dismissed the application on all grounds. The respondents — the Municipality of Mississippi Mills and its Integrity Commissioner — were the successful parties. The court rejected the applicant's claim to public interest litigant status and applied the ordinary rule that costs follow the event. While the respondents sought partial indemnity costs of $75,000, the court found that amount excessive and instead ordered the applicant to pay costs to the respondents in the amount of $7,500.00, all inclusive, within 30 days.