Chatham-Kent councilor seeks judicial review of conduct code case

A Chatham-Kent councilor reprimanded and docked pay last summer for violating council’s code of conduct is heading to court to seek judicial review of the case.

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The action follows an investigation by then-integrity commissioner Mary Ellen Bench of North Kent Coun. Rhonda Jubenville’s social media posts after council defeated her motion last April to have Chatham-Kent fly only government flags on municipal properties.

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Deciding which organizations could fly flags became a hot-button topic when council refused a flag-raising request from the group Life in Motion, the educational arm of Right to Life Kent. It also was seen by critics as a way to ban pro-LGBTQ+ Pride flags.

Jubenville violated the conduct code by engaging in behavior that used her position as a public official to bully and intimidate, Bench found in her investigation report.

On Aug. 14, council voted to reprimand her and impose the maximum three-month pay suspension.

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Jubenville’s application for judicial review seeks the “quashing and setting aside (of) the integrity commissioner’s report,” in which the councilor was found to have violated sections 10 (improper use of influence) and 15 (discreditable conduct) of the code.

The filing also takes issue with the commissioner’s application of the confidentiality provision, alleging it “violates the guiding purpose or purposes of the code,” and “entails an abuse of discretion under the rules of fairness.”

The filing also seeks a review of the pay suspension.

Michael Alexander, Jubenville’s Toronto-based lawyer, said the integrity commissioner’s report shielded the names of the complainants and withheld the factual background of the complaints.

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“That makes it very difficult to justify the decision, because you don’t have a factual foundation for the decision,” he said. “I don’t think it meets the legal test.”

As for Bench’s reasoning that confidentiality protects complainants, Alexander said most such provisions are for exceptional circumstances.

“I’ve never seen a situation where the provisions have been used to shield multiple complainants,” he said. “It’s quite extraordinary.

“We’re convinced that this is a situation that needs to be dealt with in the courts,” Alexander added. “It ultimately involves an abuse of power. . . It’s really an attempt to use the code of conduct to punish a council member for having a minority viewpoint, or an alternative viewpoint, on some issues before council.”

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Reached for comment, Bench said, “As this matter is before the court, I am not able to discuss it.”

Dave Taylor, the municipality’s director of legal services, confirmed Chatham-Kent has retained counsel in the case.

“As the matter is before the courts, it wouldn’t be appropriate for the municipality to provide any detailed comments at this point,” he said. “I can confirm that Chatham-Kent has retained a law firm to defend the investigation and findings of the integrity commissioner and the decision of council.”

The municipality is seeking a publication ban that “relates just to one specific document, being closed session minutes of a council meeting in which legal advice was provided,” Taylor said.

“Legal advice is privileged and confidential, which is why that limited publication ban is being sought.”

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Jubenville’s application was filed in Superior Court in London, the divisional court where Chatham-Kent-area cases are heard, Alexander said.

A scheduling hearing is set for Friday, with a motion hearing expected in March.

Alexander anticipates a judicial review, if granted, could take place before the fall.

Alexander, who also represents a client in Oshawa on similar issues, said many such cases are breaking new ground.

“Integrity commissioners have only been around since 2019, so there’s very little case law,” he said. “It’s really a new area of ​​practice.”

In a statement Wednesday, Jubenville said she is simply looking for truth and justice to prevail.

“I was accused of bullying, intimidating and other things through my social media posts,” she said. “However, if you look at the posts in the integrity commissioner’s report, they do not support that conclusion.

“And I can confidently say I did not bully and/or bully anyone at any time. The big problem with the report is that it does not name the people I supposedly bullied or provide facts to describe how and where this all took place.”

Jubenville added that just because her posts reflect political beliefs with which some people disagree does not mean she’s wrong or should be penalized.

“Like everyone else, I should enjoy freedom of thought, belief, opinion and expression,” she said. “. . . This is why I’ve called for a judicial review.”

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