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Education - Education Act - School Boards. 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.”
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[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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