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Charter - Administrative (3). Jonker v. West Lincoln (The Township of)
In Jonker v. West Lincoln (The Township of) (Div Court, 2024) the Divisional Court considered a JR, here challenging a finding that - after "investigation by the Township’s Integrity Commissioner" - the applicant had "contravened two sections of the Township’s Code of Conduct for his actions" during the "January/February 2022 Freedom Convoy protest in Ottawa against government lockdowns and Covid-19 vaccine mandates"].
In these quotes the court considers the interaction (or rather 'non-interaction') of the presence of Charter rights to the nature and extent of administrative 'penalty', here in a municipal 'integrity commissioner' context:[6] For the reasons that follow, I would grant the motion for an extension of time, but dismiss the application on its merits. Mr. Jonker’s s. 2 Charter rights were relevant to the exercise of the Integrity’s Commissioner’s discretion, which was to make a finding on whether Mr. Jonker’s actions at the Freedom Convoy protest violated the Township’s code of conduct. The Township was bound by those findings. Any discussion of Mr. Jonker’s s. 2 Charter rights at the penalty phase would have amounted to an attempt to undermine the Integrity Commissioner’s conclusion that Mr. Jonker’s s.2 Charter rights did not excuse the misconduct at issue. In other words, Mr. Jonker’s s. 2 Charter rights were not relevant to the exercise of the Council’s discretion in dealing with penalty.
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[24] I accept Mr. Jonker’s submission that when making its decision on penalty (which was a discretionary decision), Council was required to consider all relevant Charter rights. Thus, the question becomes whether Mr. Jonker’s s. 2 Charter rights were relevant to Council’s decision on penalty.
[25] To answer this question, it is important to highlight the structure of the Act. As set out above, it is the Integrity Commissioner who is given the power to determine whether a member of Council has violated the Municipality’s code of conduct. As Mr. Jonker concedes, Council is bound by the Integrity Commissioner’s findings with respect to whether there has been misconduct. If the Integrity Commissioner has made no finding of misconduct, Council has no further role. If the Integrity Commissioner makes a finding of misconduct, Council may make a decision as to which penalty to impose. In doing so it may consider any recommendations as to penalty made by the Integrity Commissioner and may accept, reject or modify those recommendations. In Mr. Jonker’s case, Council accepted the Integrity Commissioner’s recommendations as to penalty.
[26] In his factum, Mr. Jonker submitted that Council’s decision on penalty must be set aside for two reasons:A. The Council did not attempt to apply the well-know Doré analysis and balance the limitation of Mr. Jonker’s Charter rights while considering whether to impose a penalty on Mr. Jonker; and
B. Even if Council did undertake such a balancing exercise, the Decision does not reflect a proportionate balance between Mr. Jonker’s Charter rights and the Code’s objectives. [27] According to Mr. Jonker, Council’s penalty decision “unquestionably limited Mr. Jonker’s Charter protection because it punished Mr. Jonker for his participation in a political protest.” There is no issue that the Charter rights at issue are Mr. Jonker’s s. 2 rights of freedom of expression, freedom of peaceful assembly and freedom of association.
[28] I agree that Council’s decision had the effect of punishing Mr. Jonker for his participation in a political protest. However, the reason that Council decided to punish Mr. Jonker for his participation in a political protest is that the Integrity Commissioner decided that Mr. Jonker’s participation in that protest constituted misconduct.
[29] The Integrity Commissioner made a distinction between what he called the “peaceful stage of the protest” (which was before the federal government invoked the Emergencies Act) and the stage where the “Demonstration was deemed to be unlawful” (after the government invoked the Emergencies Act). The Integrity Commissioner was clear that Mr. Jonker committed no misconduct during the peaceful stage, but that once the demonstration “was deemed unlawful” Mr, Jonker’s s. 2 Charter rights no longer protected his conduct.
[30] Mr. Jonker argued before us that the conclusion that the demonstration became “unlawful” after the Emergencies Act was invoked is unreasonable. Therefore, the conclusion that Mr. Jonker lost his s. 2 rights once that legislation was invoked is also unreasonable.
[31] There may or may not be merit to this submission. However, what is clear is that it is a submission that goes to the issue of whether Mr. Jonker’s participation in the protest constituted misconduct. To make the submission again before Council, as Mr. Jonker argues he should have been able to do, would be to question the Integrity Commissioner’s finding as to whether his actions constituted misconduct under the code.
[32] This brings me back to the structure of the Municipal Act, which is that Council is bound by the Integrity Commissioner’s findings as to misconduct. Therefore, in exercising its jurisdiction as to penalty it cannot do so in such a way that would seek to set aside the Integrity Commissioner’s findings on the question as to whether misconduct had occurred. Yet this is precisely what Mr. Jonker states the Council should have done. In effect, he is arguing that Council should have refused to punish him because his conduct was protected by s. 2 of the Charter. If this is true, his conduct cannot be considered misconduct.
[33] This is not to say that Council does not have a duty to consider Mr. Jonker’s Charter rights, if there are any rights that are relevant to its decision. However, in this case, Mr. Jonker’s s. 2 Charter rights were relevant to the Integrity Commissioner’s decision, not to Council’s decision on penalty, which is the only decision that is the subject of this application for judicial review. . Jonker v. West Lincoln (The Township of)
In Jonker v. West Lincoln (The Township of) (Div Court, 2024) the Divisional Court considered a JR, here challenging a finding that - after "investigation by the Township’s Integrity Commissioner" - the applicant had "contravened two sections of the Township’s Code of Conduct for his actions" during the "January/February 2022 Freedom Convoy protest in Ottawa against government lockdowns and Covid-19 vaccine mandates"].
Here, the court considers Charter challenges in the context of administrative discretionary decisions:[4] The basis for Mr. Jonker’s challenge to the Decision is his allegation that the Council did not consider his s. 2 rights under the Canadian Charter of Rights and Freedoms when they made the Decision. In Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, and subsequent decisions – including, most recently, Commission scolaire francophone des Territories du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 – the Supreme Court has made it clear that to survive review by a court a discretionary decision by an administrative tribunal must consider the Charter values that were relevant to the exercise of its discretion. . Sullivan v. Canada (Attorney General)
In Sullivan v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the late re-raising of Charter issues in a JR challenging a federal Social Security Tribunal (AD) EI administrative ruling:[8] In this Court, the applicant has raised the Charter in support of his claim. In the General Division, he raised Charter arguments but expressly withdrew them. Thus, his Charter arguments in this Court are a new, inadmissible issue: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. We add that all Charter arguments, whether based on rights, freedoms or values must be supported by a rich evidentiary record, not by the “unsupported hypotheses of enthusiastic counsel” or judges: see the venerable, unquestioned case of Mackay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385 at 362. We do not have that sort of evidentiary record here.
[9] Just a couple of weeks before the appeal hearing, the Supreme Court released its decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. In that decision, the Supreme Court held that decision-makers, at least in some circumstances, must take into account values resident in the Charter and that reviewing courts can consider them even where administrators have not considered them. Out of fairness to the applicant, we invited him to make submissions on whether the Tribunal should have taken into account any Charter values in this case.
[10] The applicant submits that Charter values of “freedom” and “equality”, as broad and unqualified as they are, should have been considered. He submits that the Appeal Division should have used “freedom” and “equality” to whittle down or eradicate the vaccination requirements that were enforced against him. We reject this submission.
[11] The text of the Charter and case law under it heavily qualifies “freedom” and “equality”. And everything in the Charter is subject to reasonable limits prescribed by law under section 1. As well, it must also be remembered that section 1 of the Charter, in binding words that cannot be ignored, says that the Charter protects the “rights and freedoms set out in it”, not other things such as “values”. Thus, the “values” that administrative decision-makers are to take into account cannot be broader than, undercut or do an end run around the established scope of the “rights and freedoms set out” in the Charter determined in accordance with the seminal, binding Supreme Court authority of Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426. Undercutting the applicant’s submission is the fact that there are no Charter cases recognizing a general, unqualified entitlement to “freedom” or “equality”.
[12] It is worth adding that under Commission scolaire, Charter values cannot be used to invalidate legislative provisions that administrative decision-makers must follow, such as, in this case, section 30 of the Employment Insurance Act. Only unjustified violations of rights and freedoms can strike down legislation. Here, as we have said, the Social Security Tribunal was reasonable in holding that the applicant was precluded under that section and related court jurisprudence from questioning the appropriateness of the termination of his employment. . Ramsay v. Waterloo Region District School Board
In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered a JR by a school board trustee against "the Waterloo Region District School Board (the “WRDSB”) ... which found that he had breached its Code of Conduct for Trustees (“Code of Conduct”) and imposed sanctions upon him as a result".
In these quotes, the court considers the Charter s.2(b) 'freedom of expression' and the Dore-Loyola Charter s.1 balancing doctrine, here in the context of it's JR 'reasonableness' analysis:[53] .... Ramsay argues that the decision was unreasonable because the WRDSB failed to balance his Charter right to free expression against other relevant considerations, as required by the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, insofar as the decision held Ramsay in breach of the Code of Conduct for comments made by him in meetings and online.
[54] The WRDSB argues that the reasons provided were sufficient. The Supreme Court has held that there is no duty to give formal reasons in a context where the decision was made by elected representatives pursuant to a democratic process. It submits that a school board’s reasoning may be deduced from the debate, deliberations and the statements of policy (see: Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5). The Act does not require the provision of reasons in writing for a decision. The only statutory requirement it imposes is to provide written notice of the result and applicable sanctions. This was done.
[55] The context within which the decision was made was an administrative one, where the WRDSB was enforcing its Code of Conduct as part of the discretion granted to it by statute to manage its own affairs. The trustees had ample opportunity to review and consider the factual findings contained in the Integrity Commissioner’s report, as well as the submissions made by Ramsay. They were well positioned to balance statutory and policy objectives in coming to a decision. The notice of the decision references the findings of the Integrity Commissioner’s report which implicitly accepts the findings of fact made by the Integrity Commissioner.
[56] The WRDSB argues that the decision reflects an appropriate balancing between the statutory objectives under the Education Act and the Charter values at play. Given the context within which the decision was made, specific reference to the Doré framework was not required.
[57] Pursuant to the Act, the WRDSB is permitted to adopt its own Code of Conduct that applies to its board members, and to carry out procedures to enforce its Code. Trustees are required to comply with the Code of Conduct. The Code of Conduct outlines expectations of trustees with respect to their behaviour to maintain the integrity and dignity of their office, civil behaviour, compliance with legislation and upholding of decisions of the board.
[58] In making its decision, the WRDSB properly considered its own governing Bylaws, its Code of Conduct and the statutory objectives of the Act, as well as Ramsay’s Charter rights. In particular, the WRDSB was alive to Ramsay’s right to free expression pursuant to the Charter which had been addressed at length by the Integrity Commissioner in his report as well as in Ramsay’s own comprehensive submissions. In reaching its decision with respect to finding that Ramsay breached the Code of Conduct, and by imposing fairly minimal sanctions, the WRDSB effectively attempted to achieve a reasonable balance between Ramsay’s Charter rights and the WRDSB’s responsibilities of both the WRDSB and Ramsay under its Code of Conduct, its Bylaws and the requirements of the Act. . Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment
In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment (SCC, 2023) the Supreme Court of Canada considered 'minority language educational rights' under Charter s.23. In these quotes the court reviews the Dore/Loyola administrative Charter s.1 balancing:A. Doré Framework
[60] In Doré, this Court, per Abella J., established an approach for reviewing discretionary administrative decisions that limit Charter protections. Abella J. found that reviewing courts must show deference to decisions of this nature (para. 54). In this regard, the parties agree that the standard of review applicable in reviewing the Minister’s decisions is reasonableness. I see no reason to depart from this standard of review in this case (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16‑17).
[61] Under the Doré approach, a reviewing court must begin by determining whether the administrative decision at issue “engages the Charter by limiting Charter protections — both rights and values” (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 58; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 39; see also G. Régimbald, Canadian Administrative Law (3rd ed. 2021), at p. 99).
[62] Here is where the essence of the parties’ disagreement lies: the appellants submit that the impugned decisions engage the values underlying s. 23 of the Charter, whereas the respondent takes the opposite view. The respondent maintains that the protections afforded by s. 23 are not engaged because the appellant parents are not rights holders under this provision; as non‑rights holders, they are unable to show that the right guaranteed by s. 23 was infringed by the Minister’s decisions. In other words, the respondent argues that the Doré framework applies only in cases where an administrative decision directly infringes a right (R.F., at para. 57). According to the respondent, Charter values serve only to interpret the scope of the rights that reflect them (Loyola, at paras. 4 and 36).
[63] I note that it is not in dispute that no infringement of s. 23 can be established with respect to the appellant parents, as non‑rights holders. The CSFTNO does, of course, represent the interests of rights holders and plays a fundamental role in managing and controlling minority language schools and in expressing their special needs (Conseil scolaire francophone de la Colombie‑Britannique, at para. 86; Arsenault‑Cameron, at para. 44; Mahe, at pp. 373‑80). However, it is not necessary to determine whether the CSFTNO, as a representative of rights holders, might itself enjoy the benefit of the s. 23 rights for the purposes of this case.
[64] Indeed, it has consistently been held that the Doré framework applies not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights (Doré, at paras. 35 et seq.; Loyola, at para. 4; Trinity Western University, at para. 57).
[65] This is the case because administrative decision makers have an obligation to consider the values relevant to the exercise of their discretion, in addition to respecting Charter rights. There can be no doubt about this, because “[t]he Constitution — both written and unwritten — dictates the limits of all state action” (Vavilov, at para. 56). As L’Heureux‑Dubé J. clearly stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, a discretionary decision, to be reasonable, must be made in accordance with the “fundamental values of Canadian society” as reflected in the Charter (para. 56). Relying on this statement, Abella J. held in Doré that discretionary decisions must “always” take Charter values into consideration (para. 35 (emphasis in original)).
[66] An administrative decision maker must consider the relevant values embodied in the Charter, which act as constraints on the exercise of the powers delegated to the decision maker. I refer in this regard to the considerations identified by this Court in Vavilov: “. . . a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision . . .” (para. 105). In practice, it will often be evident that a value must be considered, whether because of the nature of the governing statutory scheme (at para. 108), because the parties raised the value before the administrative decision maker (at paras. 127‑28), or because of the link between the value and the matter under consideration (P. Daly, “The Doré Duty: Fundamental Rights in Public Administration” (2023), 101 Can. Bar Rev. 297, at p. 309). For example, it is obvious that the development of policies and the making of decisions that are likely to have an impact on a minority language educational environment require consideration of the values underlying s. 23 of the Charter (p. 309). A decision cannot be unreasonable because the decision maker failed to consider a Charter value that was not relevant for the purposes of its decision. However, if the decision maker takes a relevant value into account in its decision while opting to prioritize another objective, it must be concluded that the decision engages the Charter.
[67] Once the reviewing court has determined that the impugned administrative decision infringes Charter rights or limits the values underlying them, the court must, under the approach laid down in Doré, determine whether the decision is reasonable through an analysis of its proportionality. This involves assessing whether the exercise of discretion reflects a “proportionate balancing” of Charter rights and the values underlying them, on the one hand, with the statutory objectives in respect of which the discretion was granted, on the other (para. 57; Loyola, at paras. 37 and 39; Trinity Western University, at para. 58).
[68] The focus of judicial review is “on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” (Vavilov, at para. 83). As is the case for any other decision, the context constrains “what will be reasonable for an administrative decision maker to decide” when it exercises its discretion in a manner that limits Charter protections (para. 89; Loyola, at para. 41; Trinity Western University, at para. 81). To be reasonable, a decision must reflect the fact that the decision maker considered the Charter values that were relevant to the exercise of its discretion (E. Fox‑Decent and A. Pless, “The Charter and Administrative Law: Substantive Review”, in C. M. Flood and P. Daly, eds., Administrative Law in Context (4th ed. 2022), 399, at p. 410). The decision must also show that the decision maker “meaningfully” (Vavilov, at para. 128) addressed the Charter protections to “reflect” the impact that its decision may have on the concerned group or individual (para. 133).
[69] This means that when the decision maker gives precedence to the legislature’s intention over Charter protections in order to achieve the statutory objectives, it must do so in a manner that is “proportionate to the resulting limitation on the Charter right” (Trinity Western University, at para. 82). A decision that has a “disproportionate impact” on Charter protections can in no way show that the decision maker meaningfully considered these protections or that its reasoning reflects the significant impact that the decision may have (para. 80). Such a decision is therefore unreasonable.
[70] In the context of discretionary decisions that engage Charter protections, the standard of reasonableness must allow for a “robust . . . analysis” (Loyola, at para. 3 (emphasis in original)) that works the same “justificatory muscles” as the test set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 (Doré, at para. 5; Loyola, at para. 40; Trinity Western University, at paras. 79‑82). The approach must take into account the role of the courts as guardians of the Constitution and must reflect the particular importance of justification in decisions that engage Charter protections (Vavilov, at para. 133). When a decision engages Charter values, “reasonableness and proportionality become synonymous” (Trinity Western University, at para. 80).
[71] As a general rule, a reviewing court must not, in assessing the reasonableness of a decision, reweigh the factors underlying the decision or conduct a de novo analysis of the issues raised. If the decision maker took into account all the considerations that were relevant in the context, the reviewing court must uphold its decision (Vavilov, at para. 83; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 38; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72, at para. 16; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 42; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 39; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 64; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 91; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 40).
[72] On the other hand, the Doré approach requires reviewing courts to inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted by the decision maker (Fox‑Decent and Pless, at pp. 406‑7). In making this assessment, the reviewing court must “consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives”, while asking “whether the decision falls within a range of reasonable outcomes” (Trinity Western University, at para. 81). In cases where the reviewing court finds that “there was an option or avenue reasonably open to the decision‑maker that would reduce the impact on the protected right while still permitting him or her to sufficiently further the relevant . . . objectives”, the administrative decision will be unreasonable (para. 81 (emphasis in original)). This is a necessary consequence of the robust analysis required by Doré.
[73] It follows from the foregoing that, under the Doré approach, a reviewing court must first determine whether the discretionary decision limits Charter protections. If this is the case, the reviewing court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. If not, the decision is unreasonable.
[74] While no infringement of the right guaranteed by s. 23 of the Charter can be established with respect to the appellant parents in this case, the Doré framework is still applicable in reviewing the Minister’s decisions if the relevant values underlying this right were limited by those decisions. I therefore turn now to the preliminary question of whether the Minister’s decisions engage the protections afforded by s. 23.
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[92] The balancing exercise called for by Doré requires an administrative decision maker to “giv[e] effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (Loyola, at para. 39). .... . Carolyn Burjoski v. Waterloo Region District School Board
In Carolyn Burjoski v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers a JR against a school board decision to stop a "presentation to a Committee of the Whole Meeting", partly on Charter s.2(b) expression grounds:23. Burjoski submits that the WRDSB’s decision was unreasonable because the WRDSB failed to consider her Charter right to freedom of expression and failed to engage in a “robust balancing exercise”. She also claims that the WRDSB did not have the authority to find that Burjoski engaged in improper conduct, and the WRDSB did not have the authority to find that she breached the Human Rights Code.
24. Burjoski argues that the contents of her delegation were protected under s. 2(b) of the Charter and submits that the decision of the WRDSB required a robust explanation as a prerequisite. The decision cannot be fair or reasonable if the WRDSB did not engage in the balancing exercise as set out in the prevailing legal authorities (see: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395).
25. Burjoski submits that the WRDSB does not have the authority to end a presentation, or censor a presenter, that it deems or perceives to be a violation of the Human Rights Code. She submits that the only option available to the WRDSB, pursuant to the Education Act, is the removal of the presenter from a meeting. She argues that the Education Act does not provide the WRDSB with the authority to curtail speech on the basis that such speech is misconduct. She submits that the improper conduct contemplated by the Act must be something that interferes with the WRDSB’s ability to conduct a proper meeting and carry out its functions. She submits that, as such meetings are supposed to be open to the public, the decision to stop her delegation was unreasonable.
26. Burjoski also argues that the WRDSB did not provide adequate reasons to indicate how Burjoski breached the Human Rights Code, and therefore the decision was unreasonable.
27. I agree with the submission of the WRDSB that the decision was not unreasonable. The WRDSB has codified certain operational matters in its Bylaws that include procedures for delegations, for its committees and committee members, for public meetings, and for WRDSB meetings. The Bylaws identify duties of the Chair to maintain order in WRDSB meetings and, in particular, to preserve order and decorum and decide upon all questions of order, subject to an appeal to the WRDSB. The Bylaws also set out procedures for delegations to make submissions at meetings which include the requirement to make written submissions ahead of time that provide a summary of the points being presented.
28. The WRDSB has multiple policies that commit to providing working and learning environments free of discrimination and harassment as well as ensuring that individuals are treated with respect and dignity. The WRDSB policy on Equity and Inclusion identifies the WRDSB’s mandate to “identify and remove systemic and attitudinal barriers and biases to learning and employment opportunities that have a discriminatory effect on any individual” as well as the WRDSB’s duty “provide a safe, inclusive environment free from inequity, discrimination and harassment….” including by incorporating “the principles of equity and inclusive education into all aspects of its operations…” The Policy further acknowledges that all “partners in education” “have a critical role to play in leading the identification and removal of bias [and] discrimination.” The Policy commits to “the principle that every person within the school community is entitled to a respectful, positive school climate… free from all forms of discrimination and harassment.”
29. In the context of decisions made by elected decision-makers like the WRDSB, a high degree of deference must be given. The WRDSB trustees are accountable to their community and are well-versed in the goals of the education system and the boundaries of proper debate at meetings. School boards should be free to act as modern, democratic, dynamic legal personalities, provided only that there be some statutory foundation for, and no express statutory prohibition of, their conduct (see: Radio CHUM 1050 Ltd. v. Toronto (City) Board of Education, 1964 CanLII 164 (ON CA), [1964] 2 O.R. 207 (C.A.)).
30. The WRDSB made no finding that Burjoski breached the Human Rights Code. The Chair merely referenced that statute and expressed concerns that Burjoski’s comments were becoming problematic. It was reasonable for him to do so.
31. There is no duty to give formal reasons in a context where the decision was made by elected representatives pursuant to a democratic process. A school board’s reasoning may be deduced from the debate, deliberations and the statements of policy that give rise to the decision in question (see: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293). Accordingly, given that the decision was reached through a democratic process by elected trustees, it was not necessary for the WRDSB to give detailed formal reasons for the decision. In any event, the Chair made known to Burjoski the reasons for his ruling. In my view, the explanation when taken in context was adequate.
32. The written materials Burjoski submitted expressed her concerns about the WRDSB being transparent in how the “library cull” was to be conducted. Her written materials did not indicate she intended to address the WRDSB about specific books within the WRDSB collection. Burjoski was permitted to continue with her presentation after receiving a warning that she refused to abide. There is nothing preventing Burjoski from voicing her opinion on these library books in another forum. The decision was ultimately about Burjoski’s choice of words, which were, in the opinion of the WRDSB, derogatory and contrary to its Bylaws, the objectives of the Education Act, and potentially the Human Rights Code, as gender identity and expression are both explicitly listed as protected grounds under both the Education Act and the Human Rights Code.
33. In making its decision, the WRDSB sought to achieve, and did achieve, a reasonable balance between Burjoski’s Charter right to free expression and the objectives of its Bylaws, its Equity and Inclusion Policy, the Education Act. It prioritized the maintenance of a safe and inclusive school environment for its community members and was in accordance with the requirements of reasonableness as set out in Vavilov.
34. Accordingly, I consider the decision of the WRDSB to be reasonable and would not give effect to this ground of review.
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