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Education - Education Act - School Boards

. Theresa McNicol v. York Catholic District School Board

In Theresa McNicol v. York Catholic District School Board (Div Court, 2024) the Divisional Court allowed a JR from a school board sanction decision that the applicant trustee breached the Board's "Code of Conduct ['COC'], the Workplace Harassment Policy and Equity and Inclusive Education Policy", here on procedural fairness grounds where the Board did not follow the Education Act sanction procedures (Baker, legitimate expectations).

Here the court reviews the Education Act's school board COC procedures:
The Procedure Mandated by the Statute and the Board’s COC

[30] Section 218.2(1) of the Act provides that a board “may adopt a code of conduct that applies to the members of the board.” Pursuant to s. 218.2(2) the Minister may make regulations requiring a board to adopt a code of conduct. By virtue of O. Reg. 246/18 every board is required to adopt a code of conduct.

[31] Section 218.3(1) of the Act states that “[a] member of a board who has reasonable grounds to believe that a member of the board has breached the board’s code of conduct may bring the alleged breach to the attention of the board.”

[32] The Board has adopted a COC that sets out the procedure to be followed if an alleged breach is brought to the attention of the Board. That procedure can be found in the Procedure Addendum attached as Appendix “A” to the COC.

[33] Under the Procedure Addendum, if a trustee has notice of an alleged breach of the COC, the breach must be brought to the attention of the Chair within 15 days. At that point an Informal Complaints procedure is to commence such that within 15 days the Chair facilitates a meeting with the complainant and the trustee whose conduct is at issue. If the matter is not resolved at that meeting, then within 10 days the complainant must initiate the formal complaint procedure.

[34] If a formal complaint procedure is initiated, then within 5 days the Chair is to forward a copy of the complaint to the trustee who is alleged to have contravened the COC. Within 10 days after reviewing the complaint, the trustee concerned can ask the Chair if the complainant will return to the informal process. If the complainant refuses, the complaint is then sent to the entire Board.

[35] Once the complaint is sent to the entire Board, the Board decides by resolution whether to proceed to a formal inquiry. Within 5 days the Board is to provide the trustee whose conduct is at issue with a written response and is required to initiate its formal inquiry if that is what is decided.

[36] Where a formal investigation is undertaken, the COC expressly provides that the “final report shall outline the findings of fact but not contain a recommendation or opinion as to whether the Code of Conduct has been breached.”

[37] Pursuant to s. 218.3(3), once an inquiry has been conducted, the board “shall, based on the results of the inquiries, determine whether the member has breached the board’s code of conduct.” It is only once this has happened that a board may impose one or more of the sanctions provided for in this case.
. Ramsay v. Waterloo Region District School Board

In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered administrative fairness under Baker principles [here, the 'importance' of the decision], in relation to whether a school board disciplinary meeting should be held in camera:
[34] With respect to his concern with the use of in camera proceedings, Ramsay submits that a key factor in determining the scope of the content of the duty of fairness is the nature of the statutory scheme and the terms of the statute pursuant to which the body operates. In this case, s. 207 of the Act requires that meetings of the WRDSB be open to the public, subject only to specific statutory exceptions that permit the use of in camera proceedings. These are:
(a) the security of the property of the board;

(b) the disclosure of intimate, personal or financial information in respect of a member of the board or committee, an employee or prospective employee of the board or a pupil or his or her parent or guardian;

(c) the acquisition or disposal of a school site;

(d) decisions in respect of negotiations with employees of the board; or

(e) litigation affecting the board.
[35] Ramsay argues that none of these exceptions applied to the complaint against him or were otherwise engaged. Hence, the principle of openness was not followed and his right to procedural fairness was breached.

[36] The WRDSB maintains that Ramsay was afforded adequate procedural fairness throughout. As articulated by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27, considerable weight must be given to the choice of procedures made by the agency itself and its institutional constraints when assessing the requirements of procedural fairness.

[37] The WRDSB submits that decisions of a purely administrative nature, where a board is not acting as a tribunal which must deliberate and decide upon the rights of others, minimal procedural fairness is required. Decisions related to the enforcement of the Code of Conduct with respect to members of a school board, such as this decision of the WRDSB dealing with the conduct of one of its trustees, are predominantly administrative in nature.

[38] The WRDSB argues that, assuming that procedural fairness was owed to Ramsay, the factors set out in Baker would suggest that such fairness is on the lower end of the spectrum in these circumstances. The impact of the decision on Ramsay is nominal, and the sanctions imposed on him were minimal. The decision was not quasi-judicial in nature so as to require a very high level of procedural fairness. As the WRDSB points out, the Code of Conduct is explicit in stating that no formal trial-type hearing is to be conducted in enforcing the Code of Conduct. Rather, this process was designed to be an administrative one carried out by an elected WRDSB of Trustees empowered by statute to govern its own internal affairs.

[39] The WRDSB further submits that the use of in camera proceedings for deliberations was permissible under the applicable legislation. Section 207(2) of the Education Act allows for meetings to be closed to the public when, among other exceptions, the subject matter under consideration involves litigation affecting the school board. Since the delegate who was prevented from finishing her presentation commenced an application for judicial review as well as a civil action for damages against the WRDSB and its Chair, the facts involved with the complaint about the Ramsay were involved in litigation affecting the WRDSB. Further, the heart of the decision-making took place in the public sessions, where trustees publicly voted to find a breach of the Code of Conduct and to sanction Ramsay.

[40] The reasons for the decision in Del Grande v Toronto Catholic District School Board, 2023 ONSC 349 (Div. Ct.) illustrates the degree of procedural fairness a school board owes one of its trustees when enforcing its code of conduct in the context of alleged inappropriate trustee conduct. The Court stated (at paras 50-51):
As is evident from the process provided under s. 218.3, the process for determining whether a trustee has breached a code of conduct is not akin to a criminal process. The potential sanctions under the Education Act, including censure and the inability to participate in committees, are correspondingly weak…The process under s. 218.3 leads to a determination as to whether a trustee has breached the code of conduct and an appropriate sanction, and nothing more…

Under s. 58.5(1) of the Education Act, a school board is permitted to function as a corporation and “has all the powers and shall preform all the duties that are conferred or imposed on it under this or any other Act.” That provision reflects a legislative intent that school boards not be limited in conducting their affairs to those functions that are specified in the Education Act. Moreover, the Act does not dictate to the Board how it must conduct its affairs, rather, the Board is the primary determinant of its own processes.
[41] In my view, the June 6, 2022 meeting was permitted to be held in camera as the subject matter under consideration involved litigation affecting the WRDSB that stemmed from the delegation incident and its aftermath. This formed a significant part of the subject matter under consideration at the in camera meeting. It was “the triggering event [which gave] rise to the conduct which forms the primary basis for the Complaint” as found by the Integrity Commissioner to be the case.

[42] For this same reason, the WRDSB has filed a redacted Record of Proceeding with which Ramsay takes issue. The report of the Integrity Commissioner directly acknowledges that its contents arise from the delegation event which forms the subject matter of the related court application for judicial review and the civil action for damages against the WRDSB and the Chair. Similarly, the minutes of the in camera meetings were removed from the materials filed with the Court. There is no unfairness to Ramsay that results from this approach, nor any impediment to his raising of any argument on his own application for judicial review of the WRDSB decision in his case.
. Del Grande v. Toronto Catholic District School Board

In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considered the nature of a school board under the Education Act:
[51] ... Under s. 58.5(1) of the Education Act, a school board is permitted to function as a corporation and “has all the powers and shall preform all the duties that are conferred or imposed on it under this or any other Act.” That provision reflects a legislative intent that school boards not be limited in conducting their affairs to those functions that are specified in the Education Act. Moreover, the Act does not dictate to the Board how it must conduct its affairs, rather, the Board is the primary determinant of its own processes.

[52] This court has previously held that school boards should be free to act as modern, democratic, dynamic legal personalities. Provided there is some statutory foundation for the process in question and no express statutory prohibition against it, they have the freedom to control their own internal processes: In the Matter of s. 10 of the Education Act, 2016 ONSC 2361, at para. 56. The Education Act vests a virtually unrestricted statutory authority to act, provided only that there be some basis for the board’s actions in a valid statute. While school boards may only exercise the powers expressly or impliedly conferred on them by statute, included in this authority are any general powers conferred by the legislation: In the Matter of s. 10 of the Education Act, at para 55.
. Del Grande v. Toronto Catholic District School Board

In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considered a judicial review of decisions under a school board's code of conduct:
[6] The TCDSB is a school board constituted as a corporate body under the Education Act. The TCDSB serves approximately 90,000 students in 196 elementary and secondary schools. The Board consists of 12 trustees, who must be Catholic and are elected to the Board during each municipal election. The Board makes decisions through resolutions at formal meetings, which are recorded in written minutes.

Codes of Conduct for Trustees Under the Education Act

[7] In 2009, after several reports calling for a review of school board governance in Ontario, the legislature enacted amendments to the Education Act to strengthen school board governance: Student Achievement and School Board Governance Act, 2009, S.O. 2009, c. 25. The following provisions were added to the Education Act and are relevant to this application: ss. 169.1, 218.1, 218.2 and 218.3.

[8] Section 169.1 imposes statutory duties on school boards to: (i) “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any… sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability”; (ii) promote the prevention of bullying; (iii) promote student achievement and well-being; and (iv) “develop and maintain policies and organizational structures that promote” these goals.

[9] Since 2018, it has been mandatory for school boards to have a code of conduct for their trustees: Education Act, s. 218.2(2)(a), O. Reg. 246/18, s. 1(1). Section 218.1 imposes certain statutory duties on school board trustees, including duties to “maintain focus on student achievement and well-being” and to comply with a school board’s code of conduct for trustees.The TCDSB Code of Conduct for Trustees

[10] The TCDSB adopted a Code of Conduct for Trustees in September 2010 (the “Code of Conduct”).[1] The Code of Conduct recognizes that Trustees “represent all citizens in the Catholic community in the City of Toronto” and that the public “is entitled to expect the highest standard from the school trustees that it elects.” Trustees are expected to “respect differences in people, their ideas, and their opinions”, and to “respect and treat others fairly, regardless of, for example, race, ancestry, place of origin, colour, ethnic origin, citizenship, religion, gender, sexual orientation, age, or disability.”

[11] The Code of Conduct requires trustees to “ensure the affairs of the board are conducted with openness, justice and compassion” and “share in the responsibility for creating a positive environment that is safe, harmonious, comfortable, inclusive and respectful.[]” The Code of Conduct further requires that “when performing their duties as trustees and in… meetings with staff, parents and other stakeholders, appropriate language and professionalism are expected[.]”

[12] The Code of Conduct sets out a range of sanctions and remedial measures, which supplement the sanctions enumerated in s. 218.3(3) of the Education Act. The Code of Conduct stipulates that a vote “on any resolutions of determination or sanctions will be made by a 2/3 majority of all Trustees on the board not including the accused Trustee.”

....

[50] As is evident from the process provided under s. 218.3, the process for determining whether a trustee has breached a code of conduct is not akin to a criminal process. The potential sanctions under the Education Act, including censure and the inability to participate in committees, are correspondingly weak. An individual facing a criminal prosecution has, for good reason, stronger, constitutionally protected participatory and procedural rights than a trustee facing a code of conduct proceeding under the Education Act. It follows that the Applicant’s use of criminal law concepts, such as a “finding of guilt,” “acquittal” and “double jeopardy” have no place in a code of conduct proceeding under s. 218.3. The process under s. 218.3 leads to a determination as to whether a trustee has breached the code of conduct and an appropriate sanction, and nothing more.
Paragraphs 13-32 are a review of the history and procedural facts of the code of conduct complaint proceedings, some grounds in school board rules and some in Education Act provisions.



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Last modified: 27-05-24
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