Bias and decision-making: Chiarellli v. Ottawa (City), Explained

Bias and decision-making: Chiarellli v. Ottawa (City), Explained

James McCarthy
Posted April 21, 2022 Category: News & Updates

In the recent case Chiarelli v. Ottawa (City of), the Divisional Court quashed a decision by Ottawa City Council to suspend Councillor Chiarelli’s pay for 270 days total following an Integrity Commissioner report. The Court found that Council had shown bias in its decision making. Instead, the Court imposed its own penalty – 90 days without pay per complaint, for a total of 270.

Many who read about the case were confused: if the Court was going to come to the same conclusion, then why quash City Council’s decision in the first place? In this blog, we will take a look at exactly this question.

The Case

In 2019 six integrity commissioner complaints were filed against Ottawa city councillor Richard Chiarelli. Three of those complaints were from applicants for positions with the councillor’s office, who complained of sexual harassment and discrimination in the interview process, and were dealt with in this case. The Integrity Commissioner investigated; councillor Chiarelli declined to participate, citing bias and health issues. The Integrity Commissioner found the complaints to be substantiated, and City council accepted the recommendation that the councillor’s pay be suspended 90 days per complaint, for a total of 270 days.

The Arguments and the Decision

Councillor Chiarelli made numerous arguments relating to bias and jurisdiction. The only argument that the Court accepted related to bias by City Council. Many City Councillors had taken public positions in support of the complainants – this was insufficient to show bias, because City Council is inherently political. However, the Court found that Councillors did show bias when they refused to sit at a meeting Councillor Chiarelli attended, and when they called for his resignation. The Court quashed City Council’s decision on this basis.

What’s the point?

It’s helpful to view the process for code of conduct complaints in two parts:

  1. The Integrity Commissioner had to investigate the complaints and prepare a report, including recommending a penalty, if appropriate;
  2. City Council had to consider the recommended penalty and decide whether to impose it.

The Court did not agree with any of Councillor Chiarelli’s challenges to the report; it found the report was within the Integrity Commissioner’s jurisdiction, was not unreasonable, and that the Integrity Commissioner did not show bias.

Once the report was tabled, City Council had to decide whether to accept the recommended penalty. This was where the court found bias – it found that Council members had not done enough to ensure that they were making the decision with open minds and without prior judgement. Therefore, Council’s decision had to be quashed.

Even if City Council’s decision was quashed, someone still needed to decide whether to accept the recommended penalty. In this case, the Court found that it was the appropriate body to make this decision, and based on the evidence before it, chose an acceptable penalty.

So why bother quashing the decision just to reach the same conclusion? In fact, it’s not terribly unusual for a Court on appeal or judicial review to rule that the reasoning was wrong but still reach the same outcome. This is because, just like above, the Court will treat different components of the decision as distinct questions.

But beyond that, this approach also makes sense when we consider that a Court’s decision is not just useful in that particular case: they help shape policy and processes going forward, as well. The Chiarelli case provided important clarity on the difference between a City Council’s political roles and its adjudicative functions, and the need for councillors to distinguish between the two. The Court couldn’t avoid addressing the flaws in Council’s process simply because it agreed with the final decision; however, the flaws in City Council’s process don’t prevent another decision maker from acting reasonably – in this case, the Court – from coming to the same conclusion. 

James McCarthy
Posted April 21, 2022 Category: News & Updates

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