CITATION: Theresa McNicol v. York Catholic District School Board, 2024 ONSC 2919

DIVISIONAL COURT FILE NO.:: 693/23

DATE: 20240522

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Sheard JJ.

BETWEEN:

Theresa McNicol

Applicant

– and –

York Catholic District School Board

Respondent

Amy Block, for the Applicant

Melissa Eldridge and Adrian Pel, for the Respondent

HEARD at Toronto: April 23, 2024

H. Sachs J.

REASONS FOR JUDGEMENT

Overview

[1] Ms. McNicol is one of ten elected trustees who serve on the York Catholic District School Board (the “Board”). Following a dispute with other members of the Board, Ms. McNicol referred to a group of trustees as the “Italian trustees”, sent an email to the group in Italian, and expressed concern about her personal safety. An investigation of Ms. McNicol’s conduct determined that she had violated the applicable Code of Conduct, the Workplace Harassment Policy and Equity and Inclusive Education Policy.

[2] Following receipt of the investigation report, the Board voted to sanction Ms. McNicol with a censure and a bar on sitting on or attending all board meetings or committee meetings until the end of her term in office (a three-year period). After receiving submissions from legal counsel, the Board later varied its sanction to limit the bar on attending board meetings to one meeting. The other sanctions remained in place.

[3] This is a proceeding to judicially review the Board’s sanction on the grounds that it breached procedural fairness, exceeded the Board’s jurisdiction and was excessive.

[4] For the reasons that follow, I would allow the application and quash the Board’s decision on the basis that it breached procedural fairness. The Board did not follow its own procedure for dealing with Code of Conduct complaints. Ms. McNicol had a legitimate expectation that these procedures would be followed. The Board also ignored one of the statutory requirements for imposing a sanction – namely, the need to make a finding that there had been a breach of the Code of Conduct.

Factual Background

Events Giving Rise to the Complaints

[5] Ms. McNicol was first elected to the Board as the trustee for the districts of East Gwillimbury, Georgina and Newmarket in 1997. She is currently serving her eighth term, which is set to end on November 14, 2026.

[6] Tensions arose between Ms. McNicol and some of her fellow trustees. A number of Code of Conduct complaints were initiated against her. Some were withdrawn. Two were investigated by independent investigators. One investigation found that the allegations against her were unfounded; the other, after dismissing a number of complaints, found that she had failed to employ the proper procedure at a public meeting.

[7] On July 1, 2022, Ms. McNicol wrote an email to the then Board Chair expressing her concern that while the results of the investigation where she was found to have acted improperly were being reported to the Board publicly, the results of the investigation that exonerated her was not. In that email, she referred to the group of five trustees (the “Five Trustees”) who had launched a series of complaints against her as “the Italians”. She subsequently sent several communications in Italian and told a colleague that she did so because it “was the only way that my colleagues will understand”. In an email sent on July 4, 2022 (written in Italian) she expressed concerns about her safety at an upcoming Board meeting and indicated that she wanted security.

[8] The Five Trustees were of Italian heritage/ancestry and felt that Ms. McNicol’s remarks were both harassing and discriminatory. They interpreted Ms. McNicol’s remark that she was afraid and wanted security as a suggestion that because they were Italian, they had ties to organized crime.

No Complaint is Made Under the Code of Conduct

[9] On July 7, 2022, the Five Trustees raised their concerns about Ms. McNicol with the Chair of the Board. The Chair advised them of their right to make a complaint under the Board’s Code of Conduct (the “COC”), and that pursuant to the COC the complaint had to be made within 15 days.

[10] The Five Trustees declined to make a COC complaint. Instead, they wished to pursue the matter through a public inquiry.

[11] On July 22, 2022, Ms. McNicol was advised of the Five Trustees’ concerns and apologized for having caused them distress.

Request for a Public Inquiry

[12] On September 27, 2022, the Board passed a motion requesting that the Minister of Education conduct a public inquiry. Ms. McNicol raised no objection.

[13] On December 20, 2022, the Director of Education advised the Board that the Ministry would “not be providing any direct support nor conducting an investigation.” Two days later the Board sent a follow-up letter to the Ministry.

[14] On April 3, 2022, the Minister of Education responded, declining to conduct a public inquiry. The Minister noted that there was a clear process in place to address concerns specific to the conduct of an elected trustee and recommended engaging with the Board’s Human Rights and Equity Advisor.

The Board Retains an Investigator

[15] On March 7, 2023, the Board obtained a legal opinion that the COC did not incorporate the Human Rights Code, since the relationship between trustees was not related to employment or any of the other activities covered by the Code. The legal opinion noted that the conduct at issue was covered by the requirement in the COC to treat others fairly and with dignity and respect.

[16] On April 25, 2023, the Board approved a motion to hire a legal professional to investigate the complaints against Ms. McNicol expressed by the Five Trustees. Ms. McNicol seconded this motion. By this time, four of the Five Trustees had resigned from the Board.

The Investigator’s Report

[17] On August 14, 2023, the Investigator delivered a report in which she found the following:

(a) “There was no valid or justifiable reason for Trustee McNicol to describe her colleagues by their ethnicity or ancestry and it was done in a deliberate manner.”

(b) Ms. McNicol’s emails and public posts in Italian were done deliberately “to annoy, taunt and/or mock her colleagues.”

(c) Ms. McNicol did not intend her safety concerns to suggest that the Five Trustees had links to organized crime, but it was reasonable for the Five Trustees to believe that this was the intent and that the remarks could be interpreted that way by others. She also found that Ms. McNicol’s expressed fear about attending the upcoming Board meeting was genuine.

(d) The Five Trustees genuinely experienced Ms. McNicol’s conduct and comments as offensive, harassing and discriminatory.

COC Complaint

[18] On September 2, 2023, one of the Five Trustees made a COC complaint. One week after receipt of the complaint, the Chair of the Board forwarded it to the Board to be considered at the September 26, 2023, Board meeting. Ms. McNicol immediately raised a concern with the Chair that the complaint was over one year out of time.

[19] Prior to the Board meeting Ms. McNicol offered another apology to her colleagues and explained that she wished to work with the Board and that she had been interested in resolving matters informally. She asked that her apology be read to the Board. The Chair declined.

September 26, 2023, Board meeting

[20] At the Board meeting four of the Five Trustees called for Ms. McNicol’s resignation. They also urged the Board to prohibit Ms. McNicol from attending all Board and committee meetings “with no limits.”

[21] The Board made no inquiries and no finding as to whether Ms. McNicol had breached the COC. The Board proceeded directly to sanction Ms. McNicol. A motion was tabled to impose the following sanctions:

a) That Ms. McNicol be censured.

b) Effective October 1, 2023, and ending on November 14, 2026 (the end of Ms. McNicol’s term of office), Ms. McNicol be barred from attending all Board meetings and all committee meetings.

c) During the same period, Ms. McNicol be barred from attending or sitting on any committees.

[22] The motion for sanctions was passed by a 5:4 vote.

Reconsideration

[23] Sections 218.3 (6) – (9) of the Education Act, R.S.O. 1990, c.E.2 (“the Act”) provide that if the Board determines that a trustee breached the COC, the Board must give the trustee written notice of the determination and sanctions and an opportunity to provide written submissions. The Board must consider the submissions, and confirm, vary or revoke its determination.

[24] Following notice of the sanctions, Ms. McNicol retained counsel. Through her counsel she provided detailed written submissions to the Board in which her counsel pointed out all the ways in which the Board had failed to follow the procedures governing COC complaints and argued that the Board had imposed a sanction that it had no jurisdiction to impose.

[25] On November 7, 2023, the Board met (Ms. McNicol did not attend the meeting). On November 10, 2023, the Chair of the Board wrote Ms. McNicol to advise her of the following:

a) That he was writing to notify her that “the Board had met on November 7, 2023, in relation to the September 26, 2023, Complaint against her, and confirmed its determination that you breached the Policy 118: Trustee Code of Conduct.”

b) That at its meeting on November 7, 2023, the Board passed a resolution in which it purported to uphold a previous determination that Ms. McNicol had breached Policy 118, Trustee Code of Conduct.

c) That at the same meeting the sanctions imposed for her breach had been varied as follows:

(i) That Trustee McNicol be censured.

(ii) That Trustee McNicol be barred from attending all of the next meeting of the Board of Trustees, scheduled to take place November 28, 2023.

(iii) “Effective November 7, 2023, and ending with her term of office on November 26, 2023, Trustee McNicol be barred from attending or sitting on all Committees of the Board during that period.”

[26] The Board has also taken the position that Ms. McNicol is prohibited from attending all in camera meetings of the Board and meetings of the committee of the whole of the Board until the end of her term.

[27] As confirmed in the letter from the Chair, the major variation in the sanction was the change in the prohibition against Ms. McNicol’s attendance at Board meetings. The previous sanction had barred Ms. McNicol from attending all Board meetings until the end of her term. In their written submissions Ms. McNicol’s counsel argued that the wording of s 218.3(3) of the Act only allowed a sanction that barred a trustee from attending one Board meeting. In his letter to Ms. McNicol, the Chair confirmed that the Board decided to vary that portion of the sanction “to be in accordance with section 218.3(3) of the Education Act.”

Issues Raised and Standard of Review

[28] This application raises the following issues:

Was the decision under review arrived at through a process that was procedurally unfair? When it comes to questions of procedural fairness, a process is either fair or it is not. No standard of review analysis is required.
Does the sanction imposed exceed the jurisdiction of the Board? This is a question that involves issues of statutory interpretation. The applicable standard of review is reasonableness.
Was the sanction imposed unreasonable?

Analysis

Was the decision under review arrived at through a process that was procedurally unfair?

The Doctrine of Legitimate Expectations

[29] The leading authority on issues involving procedural fairness is the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. At paras. 23 to 28 of that decision the following factors are identified as being relevant to identifying “what is required by the common law duty of procedural fairness in a given set of circumstances”.

(i) The first important consideration is “the nature of the decision being made and the process followed in making it…The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determination that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.”(Baker, para. 23).

(ii) The second factor is the “nature of statutory scheme”. To apply this factor, it is necessary to assess the role of the decision maker within the statutory scheme. “Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.” (Baker, para. 24).

(iii) A third factor is the importance of the decision to the individual affected. The more important the impact of the decision on the affected individual, “the more stringent the procedural protections that will be mandated.” (Baker, para. 25).

(iv) The fourth factor is the one that is central to this case – “the legitimate expectations of the person challenging the decision.” As explained in Baker at para. 26:

“As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness…This doctrine, as applied in Canada, is based on the principle that the ‘circumstances’ affecting procedural fairness take into account the…regular practices of administrative decisionmakers, and that it will generally be unfair for them to act in contravention of representations as to procedure…”(cites omitted).

(v) An analysis of what the duty of fairness requires “should also take into account the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures…” (Baker, para. 27).

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.

The Procedures Provided for Were Not Followed

[38] In this case, the Five Trustees brough their concerns about Ms. McNicol’s conduct to the attention of the Chair. When they were asked whether they wished to pursue a COC complaint they indicated they did not wish to do so.

[39] The first time there was a suggestion that a COC complaint was being pursued was fourteen months later, after receipt of the Investigator’s Report.

[40] At no time during the process was any real attempt made to informally resolve the difficulties. The COC is explicit about the fact that preserving collegiality is an important consideration in the Code.

[41] Contrary to the provisions of the COC, the Investigator’s Report contained an opinion that the COC had been breached. At the September 26, 2023, Board meeting where the Investigator’s Report was considered, contrary to the requirements of the Act, the Board of Trustees simply accepted as a fact that Ms. McNicol had breached the COC and did not make its own determination that she had done so. It proceeded directly to impose a sanction.

[42] When the Board met again on November 7, 2023, it purported to confirm a finding of a breach that it had never made.

Did Ms. McNicol Have a Legitimate Expectation that the Procedures Provided for in the Statute and the COC Would be Followed?

[43] Once a body formally adopts a procedure it is legitimate for a member to expect that that procedure will be followed. In this case it was not. Two key components of that procedure were ignored. The first was that COC complaints, if they are brought, are to be brought expeditiously, i.e., within 15 days of the conduct at issue. Second, there is to be an opportunity for informal resolution to promote collegiality.

[44] The Board takes the position that Ms. McNicol consented to the procedures that were followed in this case and cannot now be heard to complain that they were not followed. First, she did not object when the Board passed a resolution requesting that the Minister conduct a public inquiry. Second, she seconded the motion to appoint an investigator to look into the complaints.

[45] The difficulty with this is that Ms. McNicol took these steps after the Five Trustees had indicated that they did not wish to pursue a COC complaint and after the time expired for bringing such a complaint had expired. According to her, her agenda was to seek to find a way to resolve the issues that had arisen between her and the Five Trustees. This desire on her part is borne out by her request to the Chair of the Board (which was denied) after the Investigator’s Report was received and the Chair called a meeting of the Board to consider the Report. Ms. McNicol asked that her apology be read to the Board and that she be given the opportunity to resolve matters informally.

[46] When the motion to appoint an investigator was passed there was no suggestion that it was being passed to investigate a COC complaint. Rather, the expressed purpose was to respond to the suggestion from the Ministry that “the Board engage a legal professional external to the YCDSB [the Board] to investigate to ensure that Ontario School Boards comply with Human Rights obligations.”

[47] If the Board was going to take the position that hiring an outside investigator to investigate Ms. McNicol’s conduct could result in a COC complaint being laid well past the time when the conduct occurred, this should have been made clear to her before she was asked to decide whether she supported or opposed the Board’s actions.

[48] The Board also argued that the time delay in laying the complaint can be explained by the fact that the Five Trustees did not know that there had been a violation of the COC until they received the Investigator’s Report.

[49] The problem with this submission is that the Board’s COC is explicit about the fact that the investigator is not the one to decide if a COC violation has occurred. Therefore, to rely on the determination by the investigator that a trustee did something they were not supposed to do, in order to justify ignoring the procedures in place for dealing with COC complaints, would undermine an important premise of the COC and the statute. It also ignores the fact that the Five Trustees made a deliberate choice not to pursue a COC complaint within the expected time period. There is no suggestion that they did so because they did not know whether Ms. McNicol’s conduct constituted a violation of the COC. Finally, in March of 2023, well before the release of the Investigator’s Report, the Board received a legal opinion that made it clear that Ms. McNicol’s conduct could constitute a breach of the COC.

The Duty of Fairness Was Violated

[50] As Baker makes clear at para. 26: “If a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.”

[51] In this case, one of the procedural requirements that was ignored was a statutory precondition to the imposition of a sanction – the need for the Board to make a finding that the COC had been breached. This raises an issue as to whether the Board had the jurisdiction to do what it did.

[52] While the allegations underlying Ms. McNicol’s conduct were serious, the rights at stake were also serious, both to Ms. McNicol and to her electorate. Limiting her ability to participate in the Board’s deliberations directly affected her ability to effectively represent her constituents.

[53] If the duty of fairness is breached a decision must be set aside.

Should the matter be referred back to the Board for reconsideration?

[54] One of the major procedural problems in this case is that the complaint giving rise to the sanctions at issue was significantly out of time. This defect will only be exacerbated if the matter is referred back to the Board for reconsideration.

[55] While this finding is sufficient to conclude that the matter should not be referred back to the Board for reconsideration, it is also relevant to note that Ms. McNicol has been subject to the sanction imposed for a period of over 7 months. This court was presented with several cases where school boards had addressed concerns regarding discriminatory or harassing conduct. As the dissenting trustees commented when voting on the sanctions at issue, a sanction that restricts a trustee’s ability to participate in the business of the Board in the range of six months (not three years) is very much within the range of sanctions imposed for the type of conduct that Ms. McNicol engaged in. Thus, while it is not necessary to address the issue of whether the sanctions imposed were without jurisdiction or manifestly excessive, it is fair to note that Ms. McNicol has been punished for her conduct in a manner consistent with other trustees who have engaged in similar (and in some cases worse) conduct.

Conclusion

[56] For these reasons the application for judicial review is allowed and the decision of the Board is set aside. Pursuant to the agreement of the parties, as the successful party, Ms. McNicol is entitled to her costs of this application, fixed in the amount of $7500.00, all inclusive.

Sachs J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Sheard J.

Released: May 22, 2024