Court File and Parties

CITATION: Sloat v. Grand Erie District School Board, 2024 ONSC 6209

DIVISIONAL COURT FILE NO.: 204/23, 241/23, 248/23 and 266/24

DATE: 20241115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Trimble, Mew JJ.

BETWEEN:

CAROL ANN SLOAT

Applicant

– and –

GRAND ERIE DISTRICT SCHOOL BOARD

Respondent

Jordan Lester, for the Applicant

Mark Zega and Carol Neilson, for the Respondent

HEARD at Hamilton by video conference: October 29, 2024

Backhouse J.

Reasons for Decision

Overview

[1] The applicant, a trustee of the respondent, seeks judicial review of four decisions that determined that she breached the respondent’s Trustee Code of Conduct (“the Code”). The applicant argues that the decisions and various sanctions imposed ought to be quashed because the respondent breached their duty of procedural fairness and because the decisions are not reasonable. The applicant seeks a declaration that her s. 2(b) Charter rights were infringed in three of the four decisions.

[2] For the reasons set out below, the decisions are quashed.

Background

[3] Grand Erie District School Board (“the respondent” or “the Board”) is a district school board pursuant to Part II.2 of Ontario’s Education Act.[^1] The Board oversees all public schools within Norfolk County, Haldimand County, and Brant County. The Board is based out of the City of Brantford. Pursuant to its obligations under the Education Act, the Board has adopted the Code which is reproduced below in Appendix A hereto.

[4] The applicant has served as an elected trustee of the Board since 2003, including terms as the Chair of the Board in 2010, 2011, 2015 and 2016. She currently serves on the Finance Committee, the Joint Advisory Committee, and the Student Discipline Committee. She also served for two years as the vice-president of the Ontario Public School Board Association.

The Board’s First Decision: May 15, 2023 (File No. 23/204)

[5] On May 15, 2023 the Board determined that the applicant violated the Code based on complaints filed in relation to three separate complaints. All three complaints were filed by the Vice-Chair, Brian Doyle.

[6] The first Code complaint was made on July 5, 2022. Mr. Doyle alleged that the applicant discussed with Ontario’s Ombudsman confidential information from an in-camera session of the Board. Mr. Doyle’s complaint was based on the applicant filing a written complaint with Ontario’s Ombudsman alleging that the Board violated s.207 (2) of the Education Act in having discussions regarding new governance by-laws and policies in-camera; the applicant believed these discussions should have occurred in public. The applicant’s written complaint filed with the Ombudsman on June 6, 2022, read as follows:

At the Board meeting of May 30, 2022, of the Grand Erie District School Board, the Board passed new governance bylaw and policies https://www.granderie.ca/board/about/bylaws-policies-proceduresprotocols/

bylaws

None of this information was ever shared in a public way.

All discussions and decision were made in camera

The only thing done in public was the ratification of the in camera votes

Contrary to 207 (2) of the Education Act

[7] The applicant was not alleged to have disclosed confidential documents or the content of the in camera discussion, only that the Board ratified new governance bylaws and policies in public when the discussions and decision regarding new governance by-laws and policies were done in a setting closed to the public.

[8] In the second complaint the complainant alleged that on June 27, 2022, the applicant attended at a school and engaged in impermissible communication with a school principal.

[9] The findings of the investigator were that the applicant attended by invitation at a meeting at a school for a presentation regarding expansion of daycare facilities. The applicant and two principals were all leaving the meeting at the same time. The applicant had known the two principals for many years. The first principal and the applicant exchanged pleasantries as they were leaving the meeting. The applicant said that the second principal remarked to her that he expected he would see her in the school in the coming year. The second principal did not specifically recall but acknowledged he may have said something to this effect, as the applicant was known for being visible in schools. The applicant then said that “trustees were no longer permitted to attend schools without an invitation” and that they “should communicate that” or “tell your superiors that”. The applicant said that she was explaining the new policy to the second principal and doing so was consistent with the Code. The Superintendent of Business believed that the applicant’s comment had put the first principal in a difficult position.

[10] Neither principal felt that the applicant had done or said anything to put them in a difficult position. The Board found that the applicant breached s.1.4 (e) of the Code.

[11] The third Code complaint arose out of the applicant’s communications with a parent.

[12] A parent emailed three trustees including the applicant, the Chair and the Superintendent of Education about a concern regarding staffing changes by the principal at the parent’s child’s school. The applicant responded to the parent by email in which she recognized that the Chair had already responded, and indicated that the parent could reach out again if she had any further concerns. The parent responded to the applicant stating that she had already received a response from the Superintendent of Education, and asking the applicant what she could do if she was unhappy with that response. The applicant responded to that email by indicating that if the parent was unhappy with the Superintendent's response, she could contact the Director and thereafter if she was still unhappy, make a deputation to the Board under Policy #2 Deputations.

[13] The applicant indicated that she believed her communication was in accordance with Public Concerns Policy #1, which she noted provides that a trustee’s role included guiding parents through the process for raising concerns.

[14] The parent then posted the contents of her email exchange with the applicant to a Facebook group. There were other postings on the group page which were racist, and comments were made about the applicant’s response suggesting that it might indicate that “they want people to go above” [the superintendent]. The applicant was not a member of the Facebook group, she was not aware of the existence of this group or its racist posts at the time she sent the email, and she did not authorize her email being shared in the group.

[15] The Superintendent indicated that it was clear that the applicant was not part of the Facebook group and the parent and not the applicant posted her email to Facebook. The Superintendent felt, however, that by providing information to the parent, the applicant was undermining her authority as a superintendent. Vice-Chair Doyle indicated that the impression he got was that the applicant was a member of the Facebook group and was encouraging the parents’ making racist comments to escalate the matter to the Director of Education or to bring a delegation to the Board. He also took issue with the applicant not informing the trustees at the in camera meeting on June 13, 2022 that she participated in a discussion with parents making racist comments about the principal and teachers.

[16] The applicant stated that she could not have spoken up about the Facebook group or the racist posts on June 1, 2022, because she had no knowledge of either of them at that time, and only learned about them along with the rest of the Board on June 15, 2022.

[17] The Vice Chair indicated that there was not an issue with the applicant advising parents about the procedure for raising concerns, but she should not be encouraging groups making racist statements to bring a deputation to the Board of Trustees.

[18] The various investigation reports were not provided either to the applicant (although they were requested) or to the Trustees voting on the complaints. Instead, the reports were summarized by an unknown person (not the investigator). The Board’s legal counsel delivered a PowerPoint presentation to the Board, summarizing the findings of the investigator retained by the Board to investigate complaints. The applicant was present during the Board’s deliberations but was not allowed to participate or answer questions as set out in 4.4 (f) of the Code.

[19] Following the Board’s direction during the in-camera meeting on May 15, 2023, the applicant received the following letter from the Board’s counsel dated May 16, 2023 by way of a decision:

I am providing you with written confirmation that the Board determined that you acted in violation of its Code of Conduct and the Board approved the sanctions listed below. Briefly, on May 15, 2023, the Board in-camera addressed the Code of Conduct Complaint filed by the Vice-Chair against you concerning three incidents. You were present during the Board’s in-camera deliberations concerning each of the three separate incidents. The Board decided and confirmed in-camera the following resolution: “Trustees have identified that Trustee Sloat breached section 1.4 b), 1.3 a), 1.4 e), 1.2 a), 1.4 a) of the Code of Conduct for Incident #1. Trustees have identified that Trustee Sloat breached section 1.4 e) of the Code of Conduct for Incident #2. Trustees have identified that Trustee Sloat breached section 1.4 b), 1.3 a), 1.4 e), 1.2 a), 1.4 a) of the Code of Conduct for Incident #3.

As a result, the Board resolves that: The Board bar Trustee Sloat from attending 3 Board meetings including in-camera meetings for May, June and September and bar Trustee Sloat from sitting on all committees effective May 16 to the end of September 2023 and that she only receive public materials. Trustee Sloat you will be provided a written notice of this decision and if you are going to appeal, we remain in-camera and the trustees can consider your appeal it will take place on May 29, 2023 at 5:30 p.m.

[20] This was the first time any trustee of the Board had been found to have breached the Code or was sanctioned by being barred from meetings. The applicant appealed this decision pursuant to Article 4.7 (d) of the Code. On June 21, 2023 the Board dismissed her appeal after her submissions were delivered to the Board. The applicant did not receive an explanation for the Board’s decision to reject her appeal.

The Second Decision: October 16, 2023 (File No. 23/241)

[21] The second complaint alleged that the applicant breached the Code by (i) refusing to sit in a designated area during the Board’s in-camera session; (ii) making inappropriate comments to an administrative assistant; and (iii) taking a picture of the administrative assistant without consent.

[22] On June 26, 2023 the applicant attended a Board caucus session to which she was invited. When the caucus session ended, the applicant left the boardroom and the Board proceeded with a closed session meeting. The applicant headed to the kitchen to wait for the public meeting to begin. The executive assistant (Ms. Kipp) instructed the applicant to wait in the foyer at some high-top tables. The applicant was not aware of a rule to wait in the foyer and believed it was permitted to wait in the kitchen which was where people who wished to attend a public meeting had historically waited. The applicant informed Ms. Kipp that she could not sit at the high tables in the foyer because of her physical limitations due to a knee replacement. Ms. Kipp replied stating that the applicant was to sit in the foyer.

[23] The applicant then went to the foyer and called her husband, voicing concern about the way she had been treated. The Board Manager of Communications, standing out of the applicant’s view, apparently listened to the applicant’s private conversation, a fact that was not known to the applicant at the time of the call. The applicant noticed Ms. Kipp sitting in a chair next to the boardroom doors when she finished her call. Out of frustration, the applicant took a photo of Ms. Kipp sitting in that position. She deleted the photo later that evening.

[24] An investigation ensued, and the investigator made certain findings.

[25] Again, the investigation report was not provided either to the applicant or the Board. Instead, the report was summarized by someone (not the investigator). The Board’s legal counsel delivered a PowerPoint presentation to the Board, summarizing the findings of the investigator retained by the Board to investigate complaints. As provided for in 4.4 (f) of the Code, the applicant was present during the Board’s deliberations but was not allowed to participate or answer questions.

[26] The applicant was interviewed during the investigation and conveyed some information to the investigator which she believed to be exculpatory which did not make it into the PowerPoint presentation along with other potentially exculpatory information and therefore was not before the Board when it made its decision. For example, the Board was not told that:

a) Ms. Kipp confirmed that the applicant had told her that she had physical limitations and could not sit at a high table;

b) for the past 22 years, people had waited in the kitchen for access to public board meeting without objection;

c) the applicant’s comment that Ms. Kipp was babysitting her and it was a waste of time and money was made in a private telephone call to the applicant’s husband which was overheard by someone from the Board.

[27] The applicant received the following written decision dated October 16, 2023 from the Board:

Following the Board’s direction during the in-camera meeting on October 16, 2023, I am providing you with written confirmation that the Board has determined that you violated its Code of Conduct and the Board has approved the sanctions listed below.

Briefly, on October 16, 2023, the Board in-camera addressed the Code of Conduct Complaint filed against you for matters raised by an employee. You were present during the Board’s in-camera deliberations concerning each of the allegations. The Investigator’s findings including her summary conclusions were reviewed in your presence.

The Investigator’s findings were summarized by her in the Report as follows:

ξ Trustee Sloat did initially refuse to sit in the designated waiting area during the in camera

session of the Board meeting on June 26, 2023.

ξ Trustee Sloat’s tone with Ms. Kipp was not polite or respectful, but agitated and frustrated.

ξ􀀃 Trustee Sloat made a comment to Ms. Kipp to the effect that she would be informing her lawyer about the interaction with Ms. Kipp on June 26, 2023.

ξ􀀃 Trustee Sloat commented to Ms. Kipp to the effect of: “…this is what you are here for, to babysit me?” and made a second comment to the effect that having Ms. Kipp there to “babysit” her was a “waste” of time and/or money.

ξ􀀃 Trustee Sloat commented to the effect of: “…they have an EA sitting outside the doors to watch me.”

ξ􀀃 Trustee Sloat took a picture of Ms. Kipp without Ms. Kipp’s explicit consent.

The Board confirmed in-camera the following breaches:

“Trustees have identified that Trustee Sloat breached section 1.2 b) of the Code of Conduct. Trustees have identified that Trustee Sloat breached section 1.4 e) of the Code of Conduct.

As a result, the Board resolved that:

The Board bar Trustee Sloat from attending Board meetings including In-Camera meetings and Special Board meetings for October and November and bar Trustee Sloat from attending and sitting in all committees effective October 16 to the end of March 31, 2024 and that she only receives public materials.

For further clarity attending means Trustee Sloat not attend in person, virtually, or by any other means.

The In-Camera resolution was confirmed in public session and therefore the sanctions have been put into effect on October 16, 2023.

[28] The applicant subsequently appealed the decision through the Board’s internal procedures. In this appeal the applicant raised that the PowerPoint presentation had left out important information that the trustees ought to consider. The applicant sought an adjournment of the appeal to provide the Board an opportunity to take steps to identify what breaches apply to which allegations against her. The Board denied this request and dismissed the applicant’s appeal on November 6, 2023.

[29] The applicant received nothing by way of reasons on the appeal.

The Third Decision: December 4, 2023 (File No. 23/248)

[30] On July 14, 2023, the applicant served on the Board and filed with the Court a judicial review application seeking to quash the May 15, 2023 decision (the First Decision) and a motion for an interim stay of the sanctions. In support of the application, the applicant swore an affidavit as well as an affidavit in support of a motion to stay the sanctions.

[31] On July 17, 2023, counsel for the Board wrote to counsel for the applicant advising, among other things, that that the Board intended to being a motion to “strike those parts of Trustee Sloat’s Affidavit which disclose in-camera records” and raised obtaining a sealing order to the Court file.

[32] The Board did not move for a sealing order or bring a motion to strike parts of the applicant’s affidavit. Instead, it moved on August 8, 2023 to dismiss the applicant’s judicial review application for abuse of process on account of the disclosed records which motion was subsequently dismissed. On August 10, 2023, Trustee Waldschmidt filed a Code complaint against the applicant, alleging that she was reported to have shared confidential and in-camera information in an affidavit that was shared to Board staff via email in relation to a judicial review. One day later at a case conference before Justice Sheard, the court file was ordered sealed on consent of the parties. Nevertheless, the Board proceeded with the complaint.

[33] During the investigation, the applicant made it clear that she did not disclose anything confidential, in-camera or otherwise, to anyone except her legal counsel and that it was her legal counsel who prepared and submitted the necessary legal documentation to advance her judicial review application.

[34] The PowerPoint Findings which were put before the Board in regard to the Third Decision quoted selectively from the decision of Justice MacNeil who heard the Board’s motion to dismiss the applicant’s judicial review for abuse of process. The Findings provided to the Board stated:

Trustee Sloat conceded that she disclosed confidential Board information to her lawyers, who in turn prepared a package to be filed with the court, which she reviewed and signed off on prior to their delivery in the support of her judicial review application and related proceedings. These concessions must be considered in light of Justice MacNeil’s findings, including:

• That Trustee Sloat included “extensive references to confidential and privileged matters discussed by the Board in camera”

• That Trustee Sloat’s “application and motion materials do contain extensive references to confidential and privileged matters discussed by the Board in camera, and materials provided to and reviewed by the Board in camera”; and

• that “this information was not available to the public before the applicant’s disclosure in these court proceedings.”

We further note that Justice MacNeil concluded that “absent agreement or without leave of the court” a party should not attach confidential documents to a pleading or an affidavit and file it in open court “as was done in this case.” When considered together, we conclude on a balance of probabilities that Trustee Sloat did disclose (through her legal counsel) confidential, in camera information in the course of a publicly accessible legal proceeding.

With the foregoing in mind, we conclude that the allegation is substantiated: Trustee Sloat disclosed through her counsel confidential in camera information in the course of her application for judicial review and related proceedings.

[35] In the Findings that went to the Board, the Board was not informed that its motion to dismiss the applicant’s judicial review application for abuse of process was dismissed. The Board was not told that Justice MacNeil concluded that “the filing was done in the course of a legal proceeding and this was not a situation where the applicant had simply gone public with confidential and privileged Board information on her own outside the legal arena.” The Board was not informed of Justice MacNeil’s comment that “the applicant’s interest in getting out the truth through the application may outweigh the Board’s privacy interest.” Nor was the Board informed of the court’s statement that “the remedy is for steps to be taken to either purge the record or to obtain a sealing order of the confidential and private information” which is what ultimately occurred.

[36] On December 4, 2023 the applicant was found to have breached ss.1.3 (a), 1.4 (b) and 1.4 (e) of the Code. The applicant, received the following letter from the Board’s lawyer by way of decision:

Following the Board’s direction during the in-camera meeting on December 4, 2023, I am providing you with written confirmation that the Board has determined that you violated its Code of Conduct and the Board has approved the sanctions listed below.

Briefly, on December 4, 2023, the Board in-camera addressed the Code of Conduct Complaint filed against you for matters raised by Trustee Waldschmidt. You were present during the Board’s in-camera deliberations concerning each of the allegations. The Investigator’s findings, including her summary conclusions, were reviewed in your presence.

The Investigator’s findings were summarized in the conclusion in her Report as follows:

“With the foregoing in mind, we conclude that the allegation is substantiated: Trustee Sloat disclosed through her counsel confidential in-camera information in the course of her application for judicial review and related proceedings.”

The Board unanimously confirmed in-camera the following breaches:

Trustees have identified that Trustee Sloat breached section 1.3 a) of the Code of Conduct.

Trustees have identified that Trustee Sloat breached section 1.4 b) of the Code of Conduct.

Trustees have identified that Trustee Sloat breached section 1.4 e) of the Code of Conduct.

As a result, the Board resolved:

THAT the Board bar Trustee Sloat from attending all meetings of the Board including In-Camera meetings, Special Board meetings, the Annual meeting and Caucus meetings for December 2023, January, and February 2024, and furthermore bar Trustee Sloat from attending and sitting in all committees effective April 1 to the end of November 30, 2024, inclusive of July and August, and that she receives a public censure and only receives public materials. For further clarity attending means Trustee Sloat not attend in person, virtually, or by any other means.”

The in-camera resolution was confirmed in public session and therefore the sanctions have been put into effect on December 4, 2023. The contents of the censure, if any, will not be determined until after the appeal process is exhausted.

The Board will maintain confidence by remaining in private session and that the Trustees were available to consider an appeal in-camera on December 18, 2023.

[37] The applicant subsequently appealed this December 4 decision through the Board’s internal procedures. On December 18, 2023, the Board considered the matter and confirmed the determination that she breached the Code and that the sanctions be upheld.

[38] The applicant received nothing by way of reasons on the appeal.

The Fourth Decision: February 12, 2024 (File No. 24/266)

[39] On June 15, 2023, Trustee Thomas filed a complaint against the applicant for her attendance in the public gallery during the three Board meetings of May 23, 2023, June 5, 2023 and June 12, 2023 after being barred from attending. The complaint also alleged that the applicant was “within listening range” of the boardroom during the June 5, 2023 in camera meeting and that the applicant was “very disrespectful” during the June 12, 2023 meeting. Although the complaint was in relation to events which preceded the incidents which were the subject of the Second and Third Decisions, the Board did not make a decision until February 12, 2024 (the Fourth Decision).

[40] After the complaint was filed, an investigation ensued. The interview process that formed part of the investigation continued into January of 2024. The investigator found:

• Trustee Sloat was publicly sanctioned on May 29, 2023 and thereafter remained in the boardroom, not at the Trustee table but with members of the public in the gallery;

• Trustee Sloat was in the hallway within a short distance to the boardroom doors and within listening range while the Board met in-camera on June 5, 2023;

• Trustee Sloat attended the finance committee meeting on June 12, 2023 during which she sighed and engaged in demonstrative behaviour. Trustee Sloat did not deny the allegation that she sighed and was demonstrative, stating “if no one asked any questions I probably made a sigh of ‘we’re all just passing stuff…not doing our jobs”.

[41] On February 12, 2024,\ the Board met to review the findings of the investigation and to vote on whether the Code had been breached by the applicant. The trustees were given a PowerPoint presentation which purported to summarize the investigation report. The applicant argues that the PowerPoint presentation did not include key information that she had provided to the investigator, much of which she believes to be exculpatory.

[42] Ultimately, the Board determined that the applicant violated two provisions of the Code through each of these three separate incidents; specifically, she did not treat other trustees with respect and in a cordial and professional manner, and she did not uphold the implementation of the Board’s decision. The Board barred the applicant from attending Board meetings for March 2024 – May 2024 and from attending and sitting on all committees effective November 30, 2024 to May 31, 2025, and in addition, the applicant was to receive a public censure.

[43] The applicant appealed this decision through the Board’s internal procedures. In her appeal submissions, the applicant raised that the limitation period under s. 4.2 of the Code had expired, that the decision reached by the Board was nonsensical, that the PowerPoint presentation left out exculpatory information, that her s. 2(b) Charter rights had been violated, and that the sanctions imposed were excessive and without jurisdiction. The Board considered the grounds for appeal advanced by the applicant and determined that she breached the Code and that the sanctions should be upheld.

[44] The applicant received nothing by way of reasons on the appeal.

[45] In a series of Case Conferences, Sheard, J. has since ordered that the entire court files in DC-23-204-JR and DC-23-241-JR be sealed and that the applicant “not produce or rely on any documents that are not already public” in any of the JR applications or motions, except with leave of the court.

[46] The sanctions in the first two JR applications have now been fully served. The Board consented to defer the public censures of the applicant that are the subject of the third (JR 248) and fourth (JR 266) judicial reviews. With respect to the remaining sanctions in the Third Decision (JR 248) and the Fourth Decision (JR266), Gibson, J. issued a stay by decision dated June 18, 2024, finding at paragraph 28 that the balance of convenience weighed in the applicant’s favour as her judicial review applications would be “largely moot if she is successful after having served most of the sanctions.”

Issues

[47] The following issues arise:

1. Did the Board breach its duty of procedural fairness owed to the applicant?

2. Are the Board’s decisions reasonable?

3. Do the decisions and the sanctions that followed infringe the applicant’s Charter rights as protected by s. 2(b)?

4. What is the appropriate remedy?

Court’s Jurisdiction

[48] This court has jurisdiction pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Standard of Review

[49] Regarding breaches of procedural fairness, this Court must determine whether the requisite level of procedural fairness was granted by applying the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.

[50] There is no dispute that the substance of the Board’s decisions and the Charter arguments should be reviewed on a standard of reasonableness.

Analysis

The Applicant Did Not Receive Procedural Fairness

[51] The applicant submits that the failure to provide her and the Board with the various investigation reports amounts to a denial of procedural fairness. She submits that the PowerPoint presentations made to the Board did not include key information the applicant had provided to the investigator, much of which she believes to be exculpatory.

[52] The Code provides that “the report shall be delivered to the Board” (s.4.4(b)). The respondent submits that this allows for verbal presentation and in addition the Code provides more specific direction that the trustees “shall consider only the findings in the final report when voting on the decision and sanction. No Trustee shall undertake their own investigation of the matter (4.4(c))”. The respondent submits that providing only the findings of the reports ensured that only the findings were considered and no trustee undertook an individual investigation.

[53] The Board has the right to determine its own process and make it an efficient process. However, it must be a fair process. The respondent submitted that the Board made a choice to receive the slides in the PowerPoint presentations rather than receive the full investigation reports, the procedure provided for under the Code. The record does not support this. There is nothing in the record to show that the Board made a choice to deviate from the Code. It was simply a case of the PowerPoint Presentations being all that was provided to the applicant and the decision-makers in each of the four Decisions.

[54] In Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508 at para. 37, a decision dealing with the conduct of a school trustee was found to be predominantly administrative in nature. Fairness was determined to be on the lower end of the spectrum considering the Baker factor of the impact of the decision on the school trustee which was found to be nominal, and the sanctions imposed on him minimal. (Ramsay, at para.38). Mr. Ramsay was suspended from attending one Board meeting. Here, the sanctions cumulatively have the effect of essentially removing an elected official from office for over a year and preventing her from attending committee meetings for over two years or even from getting information on behalf of her constituents by way of attending public meetings as a citizen.

[55] It is not a reasonable interpretation of s. 4.4 (c) of the Code to withhold the full investigation report from the decision-makers as required by s.4.4 (b). It effectively turns the Board into a rubber stamp of whoever prepares the PowerPoint presentation, being the only thing that the person charged with the complaint and the decision-makers are allowed to see. Section 218 of the Education Act gives the responsibility of determining whether a member has breached the Code to the Board.

[56] In the PowerPoint slides, portions of the evidence the applicant provided in the investigation were excluded. For example, the PowerPoint slides do not reference that the applicant told the investigator that she never tried to listen and did not hear what was said when she was waiting outside the in camera Board meeting on June 5, 2023. The slides merely state that she was “within listening range”. Further the slides do not reference the fact that she bumped her arthritic finger during the June 12, 2023 meeting and had an overreaction or that a witness who was sitting 3 or 4 feet away from the applicant could not recall if the applicant was present and did not hear any sighs or anyone looking over at the applicant in an unusual way.

[57] It was impossible for the applicant to know, apart from what she told the investigator, if the PowerPoint slides accurately reflected the content of the investigator’s report.

[58] The applicant had a legitimate expectation that the investigation report in which she participated would be available to her. This goes to her ability to answer the case against her. The applicant also had a legitimate expectation that the investigation report would be provided to the decision-makers in accordance with the Code. The concern that trustees not undertake their own investigation does not justify omitting potentially exculpatory information from the full investigation report and from those who are tasked with making the decision. The respondent’s argument in its factum that “the applicant had a full opportunity to provide any information to the trustees in her internal appeals” ignores that in the internal appeals, the applicant’s hands were tied by not having the investigation reports and by there being no reasons or even an explanation for which allegations related to the breaches the applicant was found to have contravened.

[59] Nor is it fair for the PowerPoint presentation to the Board which led to the Third Decision to cherry-pick from comments made in a judicial decision and include only those comments which would likely be seen to be judicial support of the complaint and exclude the judicial comments in the same decision that could be seen to support the opposite conclusion:

• that the filing was done in the course of a legal proceeding and this was not a situation where the applicant had simply gone public with confidential and privileged Board information on her own outside the legal arena;

• that the applicant’s interest in getting out the truth through the application may outweigh the Board’s privacy interest; and

• that the remedy is for steps to be taken to either purge the record or to obtain a sealing order of the confidential and private information.

[60] The Board was also not informed that shortly after the confidential documents were sent out, the applicant consented to a sealing order.

[61] In a situation where a party is not allowed to participate, make submissions, or answer questions during deliberations, there is a heightened responsibility to ensure that a fair and balanced picture is presented to the decision-makers. In this regard, the applicant was not afforded the requisite procedural fairness.

[62] None of the investigation reports in the four Decisions were provided either to the applicant or the Board members. Potentially exculpatory information was withheld from the Board. On that basis alone the Decisions are procedurally unfair and must be quashed.

Other Procedural Fairness Arguments raised by the Applicant

[63] The applicant has raised other arguments in support of the Decisions being procedurally unfair. Because of my conclusion above, I shall deal with them succinctly.

[64] The applicant submits that the correct interpretation of s. 4.2 (b) of the Code is that each complaint expires after six months from the time each contravention is alleged to have occurred. As the investigations continued after six months, she argues they are out of time.

[65] S. 4.2 (b) provides:

The complaint must be submitted no later than six (6) weeks after the breach becomes known to the Trustee reporting the breach. Notwithstanding the foregoing, in no circumstances shall an inquiry into a breach of the Code be undertaken after the expiration of the six (6) months from the time the contravention is alleged to have occurred.

[66] I do not agree with the applicant’s submission that the complaints are out of time. All the complaints were submitted within six weeks after their breach became known and investigations were undertaken but not completed within six months. The Oxford Advanced Learner’s Dictionary states that to “undertake something” is to “make yourself responsible for something and start doing it”. Clearly the intention is that inquiries should not commence after the expiration of six months but need not be completed within six months.

[67] I find no merit to the argument that there is a reasonable apprehension of bias by virtue of the complainants not recusing themselves from participation in the proceedings culminating in the Decisions. There is no suggestion that the complainants had any personal interest in the matters. Simply by being the trustee who filed the complaint does not raise a reasonable apprehension of bias in these circumstances.

[68] The applicant argues that enforcing the sanctions after she advised of her intention to appeal internally amounts to an abuse of process. The internal appeals were heard within a relatively short time period. It was not alleged that the Board would suffer any harm if the sanctions were not enforced until after the internal appeal was heard. It raises the question of why even have an internal appeal process if the sanctions are going to be enforced in any event. While this does not rise to the level of an abuse of process, it does add to the general impression that the applicant was being unfairly dealt with and unfairly targeted.

[69] The applicant argues that under s. 218.3(3) of the Education Act there is no jurisdiction to bar a member from attending more than one Board meeting. The sanctions imposed in the Decisions barred the applicant from attending more than one meeting.

[70] s. 218.3(3) of the Education Act identifies the sanctions for a breach of a Code:

218.3 (3) If the board determines under subsection (2) that the member has breached the board’s Code of conduct, the board may impose one or more of the following sanctions:

1. Censure of the member.

2. Barring the member from attending all or part of a meeting of the board or a meeting of a committee of the board.

3. Barring the member from sitting on one or more committees of the board, for the period of time specified by the board. (Emphasis added)

[71] I agree with the respondent that such an interpretation is unduly technical and unreasonable. A number of complaints were joined and were the subject of individual Decisions (eg. in the case of the First Decision, there were 3 separate complaints brought and heard together). It would make no sense to find that the sanction that could be imposed would depend upon if the complaints were heard singly in separate proceedings or joined and heard together.

The Board’s Decisions Are Not Reasonable

[72] In each of the Four Decisions, the only reasons the applicant was provided with gave the applicant notice of the sections of the Code she was found to have breached and the sanctions imposed. The applicant submits that there is no way to know which allegations led to the result. The applicant submits that the failure to provide sufficient reasons results in a breach of the duty of procedural fairness and makes the Decisions unreasonable.

[73] The court in Ramsay, supra in the case of a school trustee accepted that the school board’s reasons which provided the applicant with written notice of the result and the sanctions imposed were sufficient and there is no duty to give formal reasons.[^2] 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 Education 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.

[74] In a situation where no reasons have been provided, and the record does not shed light on the basis for the decision, however, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. Without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape.[^3]

[75] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency, and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.[^4]

[76] A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point.[^5]

[77] In other words, the reasonableness review is concerned both with the reasonableness of the substantive outcome of the decision, and with the process of articulating that outcome.[^6]

[78] In determining whether the decision was reasonable, the court asks itself whether the decision "is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker".[^7]

[79] These matters started with a benign complaint to the Ombudsman over whether a Board meeting to discuss new governance bylaws and policies was required to be open to the public and cascaded into a morass of further complaints and sanctions against the applicant, all for relatively minor infractions if, indeed, they were infractions. While the first two Decisions are now moot, their sanctions having been served, the facts relevant to the Third and Fourth Decisions are intertwined with the First and Second decisions. The reasonability of all of the decisions therefore merits some analysis.

Lack of Intelligibility

[80] The First Decision involved three incidents in regard to which the Board found that the applicant committed 11 violations of the Code (the respondent submits that it was 14 violations). In the first incident (the complaint to the Ombudsman) there were no findings that the applicant disclosed any confidential documents or information. There was nothing in the applicant’s email to the Ombudsman with which to reproach the applicant. While the respondent argues that it was reasonable for the Board to find that the applicant disclosed at least the subject matter of the in-camera discussions, this had already been publicly disclosed when the Board ratified the in-camera decision to pass new governance bylaws and policies at a public Board meeting.

[81] The finding that by making a complaint to the Ombudsman about a violation of the Education Act the applicant undermined the implementation of a Board decision and thereby breached five sections of the Code lacks justification and intelligibility and is therefore unreasonable. In essence this complaint and resulting Decision amount to a reprisal against the applicant for being a whistleblower.

[82] With respect to the second incident, neither principal to whom the applicant commented “tell your superiors” [about trustees no longer being allowed to attend schools uninvited] was made to feel uncomfortable by the comment. The applicant had known the principals for years. The comment occurred during what one of the principals described as “an exchange of pleasantries”. One principal felt that the comment was made half in jest.

[83] The respondent argues that this incident was nothing less than soliciting complaints against the Board about its policies. This ignores the factual matrix of the longstanding relationship between the applicant and the two principals, that the applicant’s comment was made in the context of one of the principals saying that he expected he would see the applicant in the coming year and with neither of the principals perceiving the applicant’s comment in the way the respondent alleged. Neither principal on whose behalf offence was taken had any issue with the applicant’s comment. Rather than this being a matter of soliciting complaints against the Board, this has more of the hallmarks of a vexatious complaint against the applicant. The finding in these circumstances that the applicant breached s.1.4 e) of the Code (fiduciary duty to act with a view to the best interests of the Board) is unintelligible and unreasonable.

[84] The third incident involved the applicant responding to a parent’s email about the process for raising concerns and was also minor. There is nothing in the Code which prohibits a trustee from communicating with a parent to provide information and an elected official is expected to liaise with parents. The applicant was not a member of the Facebook group to which her email was subsequently posted. There was no factual basis for finding that the applicant was aware of the existence of this group or its racist posts at the time she sent the email or at the time the matter was raised at an in camera Board meeting on June 13, 2022, or that she had authorized her email being shared in the group.

[85] The respondent submits that the applicant told a parent concerned with a teacher reassignment how to escalate an issue beyond the superintendent before even allowing the superintendent to respond. This ignores that the parent who was seeking advice from the applicant on the process to follow if she was dissatisfied with the superintendent’s response advised the applicant in an email that the superintendent had already responded.

[86] The applicant was found to have breached five sections of the Code in regard to this incident. This finding is not justified in relation to the relevant factual and legal constraints that bear on the decision.

The Second, Third and Fourth Decisions

[87] The three subsequent complaints against the applicant all related to the sanctions imposed in the First Decision. The complaints were all minor in nature. When the sanctions of barring the applicant from 3 board meetings was imposed on May 29, 2023, the applicant was not told that these sanctions included her from being barred from attending meetings as a member of the public.

[88] Section 207(1) of the Education Act states:

Subject to subsections (2) and (2.1), the meetings of a board and the meetings of

a committee of the board, including a committee of the whole board, shall be open

to the public, and no person shall be excluded from a meeting that is open to the

public except for improper conduct.

[89] The applicant was not asked to leave the boardroom when she attended the public meetings, yet she was subsequently found, unreasonably, to have breached the Code for attending. With respect to the June 12, 2023 meeting, it is not clear if the applicant is being sanctioned for attending the meeting in the public gallery or engaging in demonstrative behaviour or both.

[90] With respect to the third Decision sanctioning her for disclosing through her counsel confidential, in camera information in the course of her application for judicial review and related proceedings, the applicant deposed that she relied upon her counsel for what was required to be included in a judicial review application. The disclosure of confidential information could have immediately been remedied if the Board had proceeded with its stated intention to obtain a sealing order. This suggests that the Board’s real concern was not about the confidentiality of the documents that were disclosed but about punishing the applicant. Instead of moving for a sealing order, the Board relied upon the disclosure as support for its motion to dismiss the applicant’s judicial review application for abuse of process and brought a further Code complaint against the applicant. The applicant, through her counsel, consented to a sealing order at a case conference. The Code complaint was nevertheless pursued which led to further sanctions against her.

[91] To find that the applicant breached three sections of the Code for relying upon her counsel for what was required to be included in a judicial review application and which disclosure could be immediately cured with a sealing order is unintelligible and unreasonable.

Decision unreasonable because the Board failed to consider the applicant’s s.2(b) Charter rights under the Code

[92] The applicant makes the following Charter arguments:

a) The school board is a branch of government and thus subject to the Charter.[^8]

b) The Decisions engage her rights under s. 2 (b) of the Charter, namely her freedom of expression.

c) Filing a complaint with the Ombudsman, her interactions with the principals, advising a parent of a pupil about Board procedures and her right to attend public meetings without punishment all engage the applicant’s s.2 (b) rights.

d) Courts in Canada have long held that the right of members of the public to attend public meetings of government bodies is protected by s. 2 (b).[^9]

e) In her appeal submissions (in JR 266) the applicant specifically raised the fact that the Decision infringed her s. 2 (b) Charter rights and requested written reasons demonstrating the considerations made by the Board in its proportionality balancing exercise if the Board was going to reject this ground of appeal.

f) In addition to the Charter breach relating to her sanctions for attending public meetings, Charter rights are further infringed by the nature of the sanctions imposed—as a taxpayer and member of the public the applicant ought to have the right to attend meetings. Attending open Board and committee meetings as a member of the public is an expressive right that is being unjustifiably limited by the sanctions imposed against her. Any action which prevents her from doing so is contrary to her Charter rights and such limits cannot be justified.

[93] The respondent submits:

a) Having failed to raise the Charter argument in her appeals before the Board in JR 204 and JR 248, the applicant impliedly waived any objection to those decisions based on the alleged infringement of her Charter rights.

b) The applicant’s argument directly engages the constitutional validity of the Education Act and ought to have been the subject of a Notice of Constitutional Question.

c) In the alternative, deference is warranted when a reviewing court is determining whether a decision reflects a proportional balance between Charter protections and statutory objectives. In the context of elected officials, a high degree of deference must be given. Balanced against the objectives of the Code and the Education Act, any limitation on the applicant’s Charter rights by the Decisions was proportionate.

[94] The applicant is not impugning the constitutionality of the Education Act. No Notice of Constitutional Question is required.

[95] It is clear from Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 that the Board was required to consider the applicant’s Charter rights and to conduct a proportionate balancing of those rights with the Board’s obligations under the Code. The applicant’s s. 2 (b) Charter rights were engaged in JR 266 by the fact that she was penalized for attending public meetings and by being sanctioned not to attend public meetings in person, virtually or by any other means.

[96] The applicant in her internal appeal in JR 266 specifically asked the Board to consider her s. 2 (b) rights and to perform the balancing exercise under Doré.[^10] The Board declined to do so. There is no balancing decision of the Board to defer to. As a result, the Decision is unreasonable.

[97] Had the Board done the proportionate balancing, it would have had to address what statutory objectives other than to be punitive were met by barring the applicant, an elected official, from sitting in the public gallery at a public meeting as a member of the public or attending virtually so that she could continue to serve her constituents by keeping up to date.

Penalty Does not fit the Conduct

[98] The applicant, an elected trustee of twenty years’ service with no prior instances of Code violations, was barred by the sanctions in the four Decisions from attending Board meetings from May 16, 2023 to May 2024 and from attending committee meetings for over two years. This was in relation to what were, at most, minor or technical breaches. This was a very harsh consequence and had a significant impact on her.

[99] There is no rational connection between the applicant’s conduct and the sanctions imposed. The sanctions are excessive and punitive. Section 4.7 (a) of the Code states that the sanctions imposed are supposed to “correct unacceptable behaviour or conduct.” This suggests that sanctions are to be remedial and not punitive.

[100] The sanctions in other arguably more egregious school trustee cases were not more than a single general board meeting, if that.

[101] In the case of Trustee Michael Del Grande it was found that the trustee breached the board’s Trustee Code of Conduct when he made comments at a public meeting that likened LGBTQ issues to bestiality, pedophilia, and cannibalism. In crafting its sanctions, Trustee Del Grande was not barred from a single general board meeting.[^11]

[102] In the case of Trustee Mike Ramsay, the Waterloo Region District School Board found that Trustee Ramsay breached the Trustee Code of Conduct when he made various comments, social media posts and public positions denigrating a Board decision to stop a delegation over library materials. As a sanction, Trustee Ramsay was barred from one general board meeting.[^12]

[103] In the case of Trustee Theresa McNicol, the York Catholic District School Board found that Trustee McNicol breached the Trustee Code of Conduct when she made disparaging comments about “Italian trustees”. Initially, she was barred from attending all board meetings until the end of her term. This sanction was reduced to barring her from one meeting after the board received a legal opinion that s. 218.3(3) of the Education Act only allowed a sanction that barred a trustee from attending one Board meeting.[^13]

What is the appropriate remedy?

[104] Normally, having found that the decisions should be quashed, they would be sent back to the Board for reconsideration in accordance with the reasons of the reviewing court.

[105] Declining to remit a matter to the decision maker may be appropriate where remitting the case would serve no useful purpose. In this case, the sanctions have already been served in the First and Second Decisions and are moot. The factual matrix of all four of the Decision are intertwined.

[106] I have found that the transgressions, if any, were minor, and the sanctions imposed in their totality to be unreasonable. There is a sense that the applicant was unfairly dealt with and targeted. These matters have obviously taken an inordinate amount of time and expense and have no doubt diverted the Board’s attention from its primary responsibility of promoting student achievement and well-being. Given the delay and cost involved, no useful purpose would be served, and it is not an efficient use of public resources to send these matters back to the Board to be started over again. The sanctions that have already been served would be sufficient penalty for the entirety of the alleged contraventions.

Conclusion

[107] In the result, I exercise my discretion to quash the Decisions.

Sealing Order

[108] With respect to the consensual sealing order over much of the record before the court, the principle of audi alteram partem applies to the applicant’s right to present her case on the issues to be decided: Canadian Union of Postal Workers v. Canadian Post Corporation, 2019 ONSC 5240 (Div Ct.) at para.15. The applicant has the right to put before this court all relevant evidence to the issues she raises in her applications.

[109] The respondent has released minutes from in camera board meetings at public board meetings publicly announcing its decisions that the applicant was found to have breached the Code and announcing the sanctions it imposed. The respondent did not explain how it would be prejudiced, its operations impeded, or any individual’s privacy jeopardized if this court’s decision refers to the sealed portion of the record. The applicant’s right to procedural fairness requires that the reasons of this court do so and outweighs any privacy interest of the Board.

Costs

[110] As the successful party, the applicant is entitled to costs in the agreed upon amount of $10,000 all inclusive for the four applications.

Backhouse J.

I agree _______________________________

Trimble J.

I agree _______________________________

Mew J.

Released: November 15, 2024

Appendix A

Trustee Code of Conduct

[4] The Trustee Code of Conduct is reproduced below:

Policy Statement

The purpose policy is to establish and promote ethical, respectful, and appropriate conduct of the Trustees.

Introduction

Grand Erie District School Board Trustees are elected community leaders who realize the future welfare of our communities, of the Province, and of Canada, depends in the largest measure on the quality of education we provide in public schools to meet the needs of every learner.

Grand Erie District School Board Trustees also recognize that they should deliberate in many voices and govern in one. We uphold the Board's vision and mission as articulated in the Multi­ ear Strategic Plan.

Trustee(s)' where it appears, shall be deemed to include elected and appointed Trustees and Student Trustees where applicable. It is recognized that the roles and responsibilities of all Trustees are set out in the Education Act and Regulations.

1. Code of Conduct

1.1 Integrity

a) Trustees shall ensure that students are considered first as the basis for decision­ making.

b) Trustees shall render all decisions based on available facts and their independent judgement and shall refuse to surrender that judgement to individuals or special interest groups.

c) All Trustees of the Board shall accept that authority rests with the Board of Trustees, and that a Trustee has no individual authority other than that delegated by the Board.

1.2 Respect

a) Trustees shall express their individual opinions on issues under consideration by the Board. When expressing individual views, Trustees shall respect the differing points of view of colleagues, staff, students, and the public.

b) Trustees shall treat other Trustees and staff of the Grand Erie District School Board with respect and in a cordial and professional manner, in writing and in action.

1.3 Confidentiality

a) Trustees shall maintain confidentiality of privileged information discussed in closed sessions. Such information includes, but is not limited to:

• The security of the property of the school board;

• Intimate, personal, or financial information about an identifiable individual or an identifiable group;

• The acquisition, disposal, or development of a school site;

• Negotiations with employees of the school board;

• All legal issues affecting the school board.

1.4 Responsibility

a) Once the Board has voted, Trustees are bound by the majority decision. Trustees shall uphold the implementation of such decision after it has passed. Any Trustee who undermines the implementation of any school board decision risks having their seat vacated.

b) Trustees shall fulfill all duties as set out in Section 218.1 of the Education Act.

c) Trustees shall refuse, directly or indirectly, hospitality, financial or other forms of gifts other than those of a nominal value.

d) Trustees shall carefully review all Board packages in preparation for discussion at all scheduled meetings of the Board.

e) Trustees shall base their actions on unimpeachable conduct, acting at all times with utmost good faith in accordance with their fiduciary duty to act with a view to the best interests of Grand Erie District School Board.

f) Trustees shall ensure that their comments are issue-based and not personal, demeaning or disparaging with regard to school board staff, fellow Board members and/or the broader community.

g) Trustees shall endeavor to participate in Trustee development opportunities to enhance their ability to fulfill their obligations.

h) The Chair of the Board is the spokesperson to the public on behalf of the Board, unless otherwise determined by the Board. No other Trustee shall speak on behalf of the Board unless expressly authorized by the Chair of the Board or Board of Trustees to do so. When individual Trustees express their opinions in public, they must make it clear that they are not speaking on behalf of the Board.

1.5 Relationships

a) Trustees shall speak as the voice of their entire community at the Board table, including people who do not have children in the school system.

b) Trustees shall work with other Trustees in a spirit of respect, openness, courtesy, cooperation, and proper decorum, despite differences of opinion that may arise during debate.

c) Trustees shall refrain from exerting any pressure on any Grand Erie District School Board staff that might result in any infringement, favored or unequal application of rules, regulations, policies or procedures, in respect of the management of the Grand Erie District School Board's assets, opportunities, human resources, or financial transactions.

d) Trustees shall not intervene personally or express a position that might limit Grand Erie District School Board Management.

e) Trustees are not permitted to attend any School or facility within the Grand Erie District School Board without the prior approval of the Director of Education or direction of the Board. This does not apply to the Grand Erie District School Board's Education Centre.

f) Trustees are not permitted to communicate with Senior Board staff, without the prior approval of the Director of Education or direction of the Board. Senior Board staff includes Supervisory Officers, Principals, Vice-Principals and Managers.

g) The Director of Education's approval in e) and f) will not be unreasonably withheld.

Sections e) and f) above do not apply to communications between Trustees and Senior Board staff that are congratulatory, expression of condolence, school events, matters covered by the Governance Policy l Public Concerns, forwarding a parent/caregiver/community member email, or work involving Board committees. For further clarity, nothing in subsections e) and f) shall impede a trustee from fulfilling the duties set out Section 278.7 of the Education Act, where such duties include attending a Board school and/or communication with Senior Board staff

2. Code of Conduct Complaints by Members of the Board

2.1 Informal Resolution Process

A Trustee, who has reasonable grounds to believe that another Trustee of the Board has breached the Code of Conduct may bring the breach to the attention of the Chair of the Board informally. If the issue involves one (7) Trustee, the Board Chair may counsel that Trustee individually and decide whether the formal resolution process needs to be commenced. If the issue involves more than one (7) Trustee, then the Chair of the Board may counsel only those Trustees involved and decide whether the formal procedure needs to be commenced. Notwithstanding the above, a complainant Trustee may elect to proceed to the formal resolution stage.

2.2 Formal Resolution Process

a) If the information resolution process does not resolve the matter, the Trustee may forward to the Chair of the Board, a written, signed complaint setting out the following:

i. The name of the Trustee who is aIleged to have breached the Code;

ii. The alleged breach or breaches of the Code;

iii. Information as to when the breach came to their attention;

iv. The grounds for the belief that a breach of the Code has occurred;

v. The names and contact information of any witnesses to the breach or any other persons who may have relevant information regarding the alleged breach.

a) The complaint must be submitted no later than six (6) weeks after the breach becomes known to the Trustee reporting the breach. Notwithstanding the foregoing, in no circumstance shall an inquiry into a breach of the Code be undertaken after the expiration of six (6) months from the time the contravention is alleged to have occurred.

b) The Chair of the Board shall provide to all Trustees of the Board a confidential copy of the complaint within ten (10) days of receiving it.

2.3 Assessment and Investigation

a) All written complaints will be directed to a third party, who will make an initial assessment whether the complaint is frivolous, vexatious or more appropriately refer it to another venue for resolution.

b) The preliminary assessment will be provided to the Chair or Vice Chair as the case may be, in writing and, if warranted, an investigation will be conducted by a third party or legal counsel, in accordance with the principles of fairness, due process and natural justice.

c) If the third party or legal counsel deems an investigation is not warranted, the trustee, who filed the complaint, will be so notified.

d) All documentation of any kind generated by an investigation, or any other action taken under this policy is confidential, and such documentation will be securely retained by the third party or legal counsel who investigates the complaint.

2.4 The Decision

a) The report of the third party shall outline the finding of facts but no opinion as to whether the Code of Conduct has been breached. This will be determined by the Board of Trustees as a whole with the advice of legal counsel if necessary.

b) The report shall be delivered to the Board of Trustees, and a decision by the Board of Trustees as to whether the Code of Conduct has been breached and the sanction, if any, for the breach shall be made as soon as practical after receipt of the report by the Board.

c) Trustees shall consider only the findings in the final report when voting on the decision and sanction. No Trustee shall undertake their own investigation of the matter.

d) The determination of a breach of the Code of Conduct and the imposition of a sanction must be done by resolution of the Board at a meeting of the Board, and the vote on the resolution shall be open to the public. The resolutions shall be recorded in the minutes of the meeting.

e) If the breach involves matters that need to be discussed in camera.

f) as per 207(2)(a) to (e) of the Education Act. then the meeting shall be in camera.

g) The Trustee who was alleged to have breached the Code of Conduct may be present during the deliberations but shall not participate, answer questions, or vote.

2.5 Obstruction

Anyone who intentionally interferes with or obstructs any investigation undertaken under this section will be subject to appropriate discipline and/or other available legal sanctions.

2.6 Reprisal

Any person who commits or attempts to commit any act of reprisal, as defined at Subsection 5.2 b) below, will be subject to appropriate discipline and/or available legal sanctions, and a report to the Board shall occur on such reprisal.

2.7 Sanctions

a) Sanctions will follow the philosophy of progressive discipline with consequences of increasingly serious steps being imposed in order to correct unacceptable behavior or conduct.

b) If the Board determines that the Trustee has breached the Trustee Code of Conduct, the Board may impose one or more of the following sanctions:

i. Public Censure of the Trustee;

ii. Barring the Trustee from attending all or part of a committee meeting or Board meeting;

iii. Barring the member from sitting on one or more committees of the Board, for the period of time specified by the Board.

c) A Trustee who is barred from attending all or part of a meeting of the Board is not entitled to receive any materials that relate to that meeting or that part of the meeting and that are not available to members of the public.

d) The Board will give the Trustee written notice of the determination and sanction imposed by the Board which will inform the Trustee that they may appeal the decision within 74 days.

e) The Board will consider any appeal and shall confirm or revoke the decision within 74 days after receiving the appeal.

3. Reporting of Wrongdoing by Individuals not on the Board of Trustees

4. 3.1 General

a) The Trustees, individually and as members of the Grand Erie District School Board, are committed to ensuring that actions and operations are performed, with transparency to the extent permitted by law, accountability, honesty, and integrity.

b) To that end, this section of the Trustee Code of Conduct imposes a duty on every Board Trustee, employee, independent contractor, agent, and volunteer to Report, in confidence, any reasonable knowledge or suspicion of wrongdoing of any Trustee as defined herein. If warranted, the alleged wrongdoing will be investigated, and appropriate action will be taken on the report of the investigation.

c) This section also encourages members of the public to report any knowledge or suspicion of wrongdoing.

d) This section establishes that any person or legal entity reporting any wrongdoing reasonably and in good faith, ("Reporting Party"), shall not be subject to any reprisal as defined herein.

e) For greater clarity, the role and relationships between the Board and the Reporting Party shall not, in any way, be adversely affected by any Report made pursuant to this section reasonably and in good faith.

5.2 Definitions of Wrongdoing and Reprisal

a) "Wrongdoing" is defined as any action or inaction, past, present, or intended, by a Trustee which is contrary or prohibited by any Federal or Provincial Legislation, or Regulations enacted thereunder, Common Law, or Municipal Bylaw.

Wrongdoing also includes but is not limited to:

i) Professional Misconduct as defined by relevant Professional Organizations;

ii) Intentional breach of Board Policies, Practices and Procedures;

iii) Instructing, counselling, or extorting anyone to commit an act of wrongdoing;

iv) Statutory or Common Law Conflicts of Interest;

v) Mismanagement or maladministration of Board operations;

vi) Dishonest or unethical behaviour; and

vii) Sexual misconduct of any nature or description.

b) "Reprisal" is defined as any action, inaction, or threat of any such action or inaction against a Reporting Party by reason of a Report made under this section, including but not limited to:

i) Employment status;

ii) Working conditions;

iii) Legal relationship with the Board;

iv) Discipline; and

v) Threats, intimidation or bullying.

5.4 The Report of Wrongdoing

a) Unless as otherwise provided herein, reports of reasonable knowledge or reasonable suspicion of wrongdoing by a Trustee will be made promptly to the

Chair of the Board. The Chair of the Board may designate an independent third party to receive such Report(s).

b) In the event the Chair of the Board is the subject of the complaint, the Vice-Chair will assume all of the responsibilities in this section previously delegated to the Chair of the Board.5.4

5.5 Content and Anonymous Report of Wrongdoing

a) The Report will be sent in writing or in electronic form to the Chair of the Board.

b) The Report should contain the details of the alleged wrongdoing including specifics with regard to dates, times and potential witnesses to the wrongdoing. The Chair of the Board may decide not to proceed with an anonymous Report of Wrongdoing.

c) All reports will be directed to a third party, who will make an initial assessment regarding whether the stated wrongdoing satisfies the definition of wrongdoing and is not vexatious, frivolous or more appropriately directed to another venue for resolution, such as legal counsel, police, or another statutory authority.

d) The preliminary assessment will be provided to the Chair of the Board in writing, and if warranted, an investigation will be conducted by the third party or legal counsel, in accordance with the principles of fairness, due process and natural justice.

e) If the third party or legal counsel deems an investigation is not warranted, the complainant will be so notified.

f) The Report and the identity of the Reporting Party will not be disclosed unless required by law.

g) All documentation of any kind generated by an investigation, or any other action taken under this Policy, is confidential, unless disclosure is required by law, and such documentation will be securely retained by the independent third party who investigates the Report.

5.6 Receipt of Investigative Report

a) Upon receipt of the Report of the investigation, the Board of Trustees will determine, on the advice of legal counsel, whether any other legal authorities should be notified, to what extent the reporting party can be informed of the results of the investigation, and whether any other action under this section or otherwise should be taken.

b) Where the Board of Trustees has determined a wrongdoing has occurred, the Board

c) shall decide available legal sanctions including those within section 4.7 of this Code.

5.7 Report to Board

The Chair of the Board will report to the Board of Trustees annually on any investigation(s) of Reports of Wrongdoing.

CITATION: Sloat v. Grand Erie District School Board, 2024 ONSC 6209

DIVISIONAL COURT FILE NO.: 204/23, 241/23, 248/23 and 266/24

DATE: 20241115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Trimble, Mew JJ.

BETWEEN:

CAROL ANN SLOAT

Applicant

– and –

GRAD ERIE DISTRICT SCHOOL BOARD

Respondent

REASONS FOR DECISION

Released: November 15, 2024

[^1]: R.S.O 1990, c. E.2

[^2]: Ramsay, supra, at para.54.

[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov (“Vavilov”), 2019 SCC 65 at para.138.

[^4]: Vavilov at para.99.

[^5]: Vavilov at para.103.

[^6]: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 at para. 52..

[^7]: Vavilov at para.85.

[^8]: Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710 at para.121.

[^9]: Langenfeld v. TPSB, 2018 ONSC 3447 at paras.51,52, overturned at 2019 ONCA for other reasons.

[^10]: Doré v. Barreau du Québec, 2012 SCC 12, [2012], 1 S.C.R. 38.

[^11]: Del Grande v. Toronto Catholic District School Board, 2023 ONSC 349 at para. 29, aff’d 2024 ONCA 769

[^12]: Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508 at para. 25.

[^13]: McNicol v. York Catholic District School Board, 2024 ONSC 2919 (Div.Crt.) at para. 27.