CITATION: Del Grande v. Toronto Catholic District School Board, 2023 ONSC 349
DIVISIONAL COURT FILE NO.: 139/21
DATE: 20230113
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R. Smith, Stewart and Nishikawa JJ.
B E T W E E N:
Michael Del Grande
Applicant
- and –
Toronto Catholic District School Board
Respondent
Charles Lugosi, for the Applicant
Christine Muir and Adrian Pel, for the Respondent
David Tortell and Waleed Malik, for the Intervener, the Attorney General of Ontario
HEARD: in Toronto by videoconference on October 19, 2022
REASONS FOR DECISION
Nishikawa J.
Overview
[1] The Applicant, Michael Del Grande, a Trustee of the Toronto Catholic District School Board (“TCDSB”), seeks judicial review of four decisions of the Board of Trustees (the “Board”) finding that he breached the code of conduct for trustees, imposing certain sanctions on him and confirming those decisions.
[2] The Applicant was found to have breached the code of conduct for trustees when he made certain comments, as further detailed in these reasons, during a Board meeting to discuss an amendment to the TCDSB’s code of conduct to include gender identity, gender expression, family status, and marital status as additional protected grounds.
[3] The Applicant’s main argument is that the Board lacked authority and was precluded from reconsidering an initial decision, which had failed to obtain the two-thirds majority required for a finding that he breached the code of conduct. The Applicant submits that the initial decision ought to be reinstated. The Applicant further submits that because his comments were constitutionally protected, the subsequent decisions contravene Charter values and principles of fairness.
[4] For the reasons set out below, the application is dismissed.
Background
The Parties
[5] The Applicant has been an elected Trustee of the TCDSB since 2014. The Applicant originally served as a trustee from 1994 to 2003, and as Chair in 2000. From 2003 to 2014, the Applicant served as an elected councillor of the City of Toronto.
[6] The TCDSB is a school board constituted as a corporate body under the Education Act. The TCDSB serves approximately 90,000 students in 196 elementary and secondary schools. The Board consists of 12 trustees, who must be Catholic and are elected to the Board during each municipal election. The Board makes decisions through resolutions at formal meetings, which are recorded in written minutes.
Codes of Conduct for Trustees Under the Education Act
[7] In 2009, after several reports calling for a review of school board governance in Ontario, the legislature enacted amendments to the Education Act to strengthen school board governance: Student Achievement and School Board Governance Act, 2009, S.O. 2009, c. 25. The following provisions were added to the Education Act and are relevant to this application: ss. 169.1, 218.1, 218.2 and 218.3.
[8] Section 169.1 imposes statutory duties on school boards to: (i) “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any… sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability”; (ii) promote the prevention of bullying; (iii) promote student achievement and well-being; and (iv) “develop and maintain policies and organizational structures that promote” these goals.
[9] Since 2018, it has been mandatory for school boards to have a code of conduct for their trustees: Education Act, s. 218.2(2)(a), O. Reg. 246/18, s. 1(1). Section 218.1 imposes certain statutory duties on school board trustees, including duties to “maintain focus on student achievement and well-being” and to comply with a school board’s code of conduct for trustees.
The TCDSB Code of Conduct for Trustees
[10] The TCDSB adopted a Code of Conduct for Trustees in September 2010 (the “Code of Conduct”).[^1] The Code of Conduct recognizes that Trustees “represent all citizens in the Catholic community in the City of Toronto” and that the public “is entitled to expect the highest standard from the school trustees that it elects.” Trustees are expected to “respect differences in people, their ideas, and their opinions”, and to “respect and treat others fairly, regardless of, for example, race, ancestry, place of origin, colour, ethnic origin, citizenship, religion, gender, sexual orientation, age, or disability.”
[11] The Code of Conduct requires trustees to “ensure the affairs of the board are conducted with openness, justice and compassion” and “share in the responsibility for creating a positive environment that is safe, harmonious, comfortable, inclusive and respectful.[]” The Code of Conduct further requires that “when performing their duties as trustees and in… meetings with staff, parents and other stakeholders, appropriate language and professionalism are expected[.]”
[12] The Code of Conduct sets out a range of sanctions and remedial measures, which supplement the sanctions enumerated in s. 218.3(3) of the Education Act. The Code of Conduct stipulates that a vote “on any resolutions of determination or sanctions will be made by a 2/3 majority of all Trustees on the board not including the accused Trustee.”
The Applicant’s Comments
[13] On August 29, 2019, the Minister of Education issued Policy/Program Memorandum 128 (“Memorandum 128”) which communicated that the Minister had revised the provincial code of conduct, an instrument with which all school board codes of conduct must conform. Among other changes, the Memorandum specifies gender identity, gender expression, family status, and marital status (the “Additional Grounds”) as enumerated grounds that “all members of the school community” must respect and not discriminate based upon.
[14] In response to the Memorandum, the TCDSB Trustees considered whether to add gender identity, gender expression, family status and marital status as enumerated grounds under the TCDSB Code of Conduct. On October 30, 2019, the Board’s Catholic Education and Living Our Catholic Values Subcommittee voted 4-1 against a proposal to add the Additional Grounds to the TCDSB Code of Conduct. The Applicant voted with the majority.
[15] On November 7, 2019, at a public meeting of the Student Achievement and Well Being, Catholic Education and Human Resources Committee, the Trustees considered a motion to direct the Governance and Policy Committee to approve the addition of gender identity, gender expression, family status and marital status as enumerated grounds under the TCDSB Code of Conduct. Two days before the meeting, the Archdiocese of Toronto had advised the Board that it accepted the addition of the Additional Grounds to the TCDSB Code of Conduct.
[16] At the meeting, several delegations made submissions regarding the motion to add the Additional Grounds to the TCDSB Code of Conduct. A former student trustee of the Board who identifies as a member of the LGBTQ+ community spoke about his personal experience at a Board-operated high school, including the suicide of a friend who did not feel accepted because he was gay.
[17] During the debate, the Applicant proposed an amendment to the motion. The Applicant moved to add to the Additional Grounds numerous fetishistic behaviours including pedophilia, gerontophilia, bestiality and vampirism, among others. The Applicant spoke at length describing more than 20 types of such behaviours, some of which are offences under the Criminal Code. The Applicant characterized his proposal as showing the “slippery slope” of adding the Additional Grounds.
[18] The Director of Education for the TCDSB, Rory McGuckin, advised the Board that the Applicant’s remarks could result in a contravention of the Education Act or policy guidelines and that some of the terms were contrary to the Criminal Code. The Chair, Garry Tanuan, then ruled the Applicant’s proposed amendment out of order on the basis that it would be contrary to the Human Rights Code, the Education Act, the Memorandum and, in some cases, the Criminal Code.
[19] As the meeting continued, the Applicant continued to inquire about opinions provided by the Catholic Archdiocese on the matter. The Board ultimately voted to direct the Governance and Policy Committee to approve the addition of the Additional Grounds into the TCDSB Code of Conduct.
The Investigation
[20] After the meeting, the TCDSB received over a dozen formal complaints about the Applicant’s comments. The Ontario Catholic School Trustees’ Association repudiated the Applicant’s remarks.
[21] On February 24, 2020, the Board sought an independent review of the matter. At the Applicant’s request, the initial investigator was replaced by an investigator with knowledge of Catholic teachings. The investigator reviewed the written complaints, interviewed the Applicant and three complainants, reviewed documents provided by the parties, and reviewed relevant portions of a recording of the meeting.
[22] On May 29, 2020, the investigator issued her report which found that the Applicant had violated the Trustees’ Code of Conduct by creating an “unwelcoming and harmful environment for certain members of the Catholic school board community.” The investigator found that while debating the motion was within the Applicant’s role, he “crossed the line” through the “inflammatory language” of his proposed amendment and the “flippant (to use his own word) manner in which he addressed concerns about that language[.]”
The First Decision
[23] On August 20, 2020, at held a regularly scheduled meeting, the full Board of Trustees considered, among other things, the Applicant’s Code of Conduct matter. At the start of the meeting, the Applicant requested that it be recorded and argued that the agenda item relating to the Code of Conduct proceeding was unlawful and abusive. The Chair ruled that the item was in order. The Applicant appealed and the Board voted to uphold the ruling. The Applicant alleges that the Chair did not allow the Applicant’s counsel to respond to submissions made by the Board’s external counsel and that the Applicant’s counsel’s Zoom connection was terminated and not restored.
[24] During an in camera session, the Trustees considered the investigation report and discussed whether the Applicant had violated the Code of Conduct. The Applicant recused himself from the discussion and vote. The Trustees then returned to the public session and voted on a resolution finding that the Applicant was in breach of the Code of Conduct. The Board voted 7-4 in favour of the resolution (the “First Decision”). This was one vote short of the two-thirds majority required under the Board’s By-law 175 (the “By-law”) to find that a Trustee has breached the Code of Conduct.
[25] On September 8, 2020, the Board’s legal counsel advised an investigator for the Ontario College of Teachers that the Board determined that the Applicant did not breach the “Code of Conduct.
Reconsideration and Subsequent Decisions
[26] The First Decision was followed by a strong negative response from the community. The Board decided to convene a special meeting on November 11, 2020 to debate whether it should reconsider the First Decision, pursuant to Article 10.11 of the By-law (the “Reconsideration Provision.”) Counsel for the TCDSB and counsel for the Applicant attended. The Applicant had sent a 46-page legal submission to the Trustees in advance of the meeting. During an in camera session, his counsel was invited to respond to questions. In the public part of the session several delegations made submissions. The meeting lasted for over eight hours.
[27] At 12:30 a.m. on November 12, 2020, the Board voted 8-1 in favour of a motion to use the Reconsideration Provision to reconsider the First Decision (the “Reconsideration Decision”).
[28] The Board then voted 8-1 in favour of finding that the Applicant, by his comments and proposed amendment at the November 7, 2019 Board meeting, had engaged in misconduct and breached the Code of Conduct by making comments that were offensive and inappropriate (the “Merits Decision”).
[29] The Board proceeded to debate the appropriate sanctions to apply to the Applicant. After a couple of amendments, the Board voted 8-1 to sanction the Applicant, under s. 10(a) of Policy T.04 (Trustees Code of Conduct) and s. 218.3 of the Education Act (the “Sanctions Decision”), as follows:
(1) That the Board censure Trustee Del Grande for behavior which was disrespectful to the LGBTQ community as a whole, as well as the TCDSB community;
(2) That the Board request that Trustee Del Grande present a public apology;
(3) That Trustee Del Grande be barred from sitting on a number of committees of the Board for a three-month period;
(4) That the Board refrain from appointing Trustee Del Grande to any representative position or role on behalf of the Board for a period of three months; and
(5) That Trustee Del Grande immediately undertake and complete within a month an Equity Training program, to be recommended by the Board’s Human Rights and Equity Advisor.
The Decisions Are Confirmed
[30] On December 3, 2020, the Applicant sought to appeal the Merits and Sanction Decisions and delivered a 440-page affidavit and 36-page legal submission. The Board’s external legal counsel provided a summary to the Director of Education on December 11, 2020. On December 14, 2020, the Applicant then delivered a purported “reply” submission (the “Reply”). The Respondent takes the position that the Reply is not a proper reply but that it simply rehashes arguments made in the Applicant’s initial submission.
[31] On December 16, 2020, as required under s. 218.3(6) of the Education Act, a special meeting of the Board was held to confirm, vary or revoke the determination that the Applicant had breached the Code of Conduct. In a private session, the Board considered a report and a legal opinion from the Board’s external counsel which concluded that the determination that the Applicant breached the Code of Conduct was legally sound. The Board considered the Applicant’s initial submission but did not consider the Reply. In a public session, the Board confirmed the prior determination by a vote of 8-1 (the “Confirmation Decision”). On December 17, 2020, the Chair of the Board sent the Applicant a letter confirming the Merits and Sanctions Decisions.
[32] The Applicant seeks to quash the Reconsideration Decision, the Merits Decision, the Sanctions Decision and the Confirmation Decision (collectively, the “Decisions”) and to have the First Decision reinstated.
Issues
[33] This application for judicial review raises the following issues:
(a) What is the applicable standard of review?
(b) Was the Reconsideration Decision reasonable?
(c) Were the Merits, Sanctions and Confirmation Decisions reasonable?
(d) Was the Applicant denied procedural fairness because of the Board’s failure to consider his Reply?
Analysis
Standard of Review
[34] The Applicant submits that the standard of correctness applies to the Decisions because the application raises issues of the Board’s jurisdiction to reconsider the First Decision, as well as the application of the principles of res judicata, issue estoppel, abuse of process and functus officio. He submits that those issues are of central importance to the legal system as a whole.
[35] I disagree. Pursuant to Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16-17, the presumptive standard of review is reasonableness. The issues raised in this application do not displace that presumption. First, the issue of whether the Board had authority to reconsider the First Decision did not require that the Board resolve an issue of conflicting jurisdiction between two administrative decision-makers. The issue was simply whether the Board had authority under the Education Act and its By-law, to reconsider its decision. To the extent that this issue can be characterized as a jurisdictional question, it is one that the Supreme Court of Canada clarified in Vavilov would attract a reasonableness review: Vavilov, at paras. 65-68.
[36] Second, the application raises no issue of central importance to the legal system as a whole or pertaining to the rule of law. In this case, the Board applied the well-established principles of res judicata, issue estoppel, abuse of process and functus officio within a particular factual context and in light of the Reconsideration Provision. The Board was not required to articulate a general doctrine or resolve a complex legal issue of broader application. See: Vavilov, at paras. 60-62; Victoria University (Board of Regents) v. GE Canada Real, 2016 ONCA 646, at paras. 88-93. As a result, the standard of reasonableness applies.
[37] A reasonable 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”: Vavilov, at para. 85. The reasonableness standard requires that a reviewing court defer to such a decision.
[38] The parties agreed that no standard of review analysis is required on matters of procedural fairness, which are determined with reference to the non-exhaustive list of considerations set out in Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 23. More recently, the Supreme Court of Canada has clarified in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 DLR (4th) 328, at para. 30, that the standard of review applicable to matters of procedural fairness is correctness.
Was the Reconsideration Decision Reasonable?
Was the Board’s Application of the Reconsideration Provision Reasonable?
[39] The Applicant submits that the Decisions must be quashed because any reconsideration must be authorized by statute and the Education Act contains no such authority. The Applicant submits that the Reconsideration Provision, Article 10.11 of the By-law, is inferior to the statutory scheme set out in s. 218.3 of the Education Act and is not intended for use in Code of Conduct proceedings. The Applicant’s position is that the Board was not entitled to use the Reconsideration provision to hold a fresh vote to get the result that it was seeking, a process that he characterizes as “reverse engineering.” In support of his position, the Applicant relies on the following paragraph from Vavilov, at para. 121:
The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior – albeit plausible – merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.
[40] The Respondent submits that the Reconsideration Decision was reasonable. The Education Act gives the Board broad authority to control and determine its own processes. Because the Education Act does not prohibit reconsideration, the Board was entitled to use the Reconsideration Provision to reconsider the First Decision. The Respondent relies on the following contextual factors to support its position: (i) the board was interpreting its home statute and its own codes of procedure and conduct; (ii) the legislative scheme favours deference to the Board; (iii) the Trustees have a unique perspective on the Applicant’s comments; and (iv) the Trustees are elected representatives and the Board is democratically accountable to the community.
The Reconsideration Provision
[41] Article 10.11of the By-law reads as follows:
10.11 Reconsideration by the Board of Trustees
Any matter which has been decided upon by the Board of Trustees, for a period of three months thereafter, may be reconsidered by the Board of Trustees only on an affirmative vote of two-thirds of all Trustees of the Board of Trustees entitled to vote, thereafter only on an affirmative vote of a majority of all Trustees of the Board of Trustees entitled to vote thereon. Thereafter a matter may be reconsidered only on a vote of a majority of all Trustees of the Board of Trustees entitled to vote thereon.
[42] The Applicant accepts that under s. 169.1(d) of the Education Act, the Board had authority to enact the By-law and consequently Article 10.11. He submits, however, that the Board was not entitled to circumvent or read-in new procedure to s. 218.3 of the Act. The Applicant further submits that the Reconsideration Provision is only intended to be used on appeal when a Trustee has been found “guilty” of misconduct and not when a Trustee has been “acquitted.”
Section 218.3 of the Education Act
[43] The procedure for enforcing a school board’s code of conduct for trustees is set out in s. 218.3 of the Education Act. In brief, where a potential breach of a code of conduct has come to the board’s attention, the board is required to make inquiries and determine whether the code of conduct has been breached (s. 218.3(2)); to take certain actions if the board determines that a trustee has breached the code of conduct (s. 218.3(3)); and to give the trustee notice and provide an opportunity to make written submissions regarding the finding of misconduct or sanction (s. 218.3(6)). The board is required to make a determination as to whether misconduct has occurred, the sanctions to be imposed, and the confirmation/revocation of the decisions by resolution at a public meeting of the board (s. 218.3(11)).
[44] Subsection 218.3(3) specifies the sanctions that may be imposed in the event of a breach of the code of conduct. The sanctions include censure of the member and barring the member from attending meetings and/or sitting on committees of the board for a specified period of time.
[45] A trustee’s opportunity to make submissions takes place after a finding of breach and the imposition of a sanction under s. 218.3(6), which states as follows:
(6) If a board determines that a member has breached the board’s code of conduct under subsection (2),
(a) the board shall give the member written notice of the determination and of any sanction imposed by the board;
(b) the notice shall inform the member that he or she may make written submissions to the board in respect of the determination or sanction by a date specified in the notice that is at least 14 days after the notice is received by the member; and
(c) the board shall consider any submissions made by the member in accordance with clause (b) and shall confirm or revoke the determination within 14 days after the submissions are received.
Findings
[46] The modern principle of statutory interpretation requires that the words of an Act be interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature: Rizzo & Rizzo Shoes, 1998 837 (SCC), [1998] 1 S.C.R. 27.
[47] In my view, the Board’s application of the Reconsideration Provision to reconsider the Applicant’s Code of Conduct matter was reasonable because it is supported by the text, context and purpose of the Education Act. I reject the Applicant’s submission that because the Board was not entitled to reconsider the First Decision, the Reconsideration Decision was “illegal.”
[48] Beginning with the text of the provision, nothing in the language of s. 218.3, or the Education Act, precludes reconsideration of a code of conduct matter by a board. There is no provision in the Act stating that a determination under s. 218.3(6) is final. Section 218.3 prescribes a process for determining whether a trustee has breached a code of conduct. As noted above, under s. 218.3(6), the trustee does not have an express right to make submissions before a finding of a breach is made. The trustee has an opportunity to make written submissions before the meeting at which the determination will be confirmed, revoked or varied. Moreover, s. 218.3 does not require that a board provide a trustee with a full hearing or participatory rights; it provides only for written submissions. Subsection 218.3(14) reinforces this by specifically stating that the Statutory Powers Procedures Act does not apply.
[49] Similarly, the Reconsideration Provision itself contains no limits as to the subject matter to which it applies. In fact, the wording of the provision is broad, and states that “[a]ny matter which has been decided upon by the Board of Trustees… may be reconsidered by the Board of Trustees…[.]” The Reconsideration Provision does not exclude its application to Code of Conduct matters. There is no basis on which to read-in such a limit where none exists. The provision stipulates that a two-thirds majority vote is required to reconsider a decision of the Board within three months but that after that, a simple majority is sufficient. This requirement is logical to ensure that policy matters are not constantly revisited once they have been decided. The fact that the Reconsideration Provision has not previously been used in relation to a Code of Conduct matter does not mean that it cannot be.
[50] As is evident from the process provided under s. 218.3, the process for determining whether a trustee has breached a code of conduct is not akin to a criminal process. The potential sanctions under the Education Act, including censure and the inability to participate in committees, are correspondingly weak. An individual facing a criminal prosecution has, for good reason, stronger, constitutionally protected participatory and procedural rights than a trustee facing a code of conduct proceeding under the Education Act. It follows that the Applicant’s use of criminal law concepts, such as a “finding of guilt,” “acquittal” and “double jeopardy” have no place in a code of conduct proceeding under s. 218.3. The process under s. 218.3 leads to a determination as to whether a trustee has breached the code of conduct and an appropriate sanction, and nothing more.
[51] The statutory scheme provides further support for the Board’s interpretation of the Reconsideration Provision and s. 218.3. Under s. 58.5(1) of the Education Act, a school board is permitted to function as a corporation and “has all the powers and shall preform all the duties that are conferred or imposed on it under this or any other Act.” That provision reflects a legislative intent that school boards not be limited in conducting their affairs to those functions that are specified in the Education Act. Moreover, the Act does not dictate to the Board how it must conduct its affairs, rather, the Board is the primary determinant of its own processes.
[52] This court has previously held that school boards should be free to act as modern, democratic, dynamic legal personalities. Provided there is some statutory foundation for the process in question and no express statutory prohibition against it, they have the freedom to control their own internal processes: In the Matter of s. 10 of the Education Act, 2016 ONSC 2361, at para. 56. The Education Act vests a virtually unrestricted statutory authority to act, provided only that there be some basis for the board’s actions in a valid statute. While school boards may only exercise the powers expressly or impliedly conferred on them by statute, included in this authority are any general powers conferred by the legislation: In the Matter of s. 10 of the Education Act, at para 55.
[53] In addition, while the Education Act requires that a board enact a code of conduct, it does not prescribe the standards or content. This demonstrates that the legislature intended for conduct issues to fall within the Board’s authority, which enables the Board to act in a flexible and dynamic manner, responsive to the community it serves.
[54] The purpose of the Education Act is to foster a strong public education system, which is the foundation of a “prosperous, caring and civil society.” Education Act, s. 0.1(1). Subsection 0.1(2) further states that the “purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to their society.” The Board, as a “partner[] in the education sector” has “a role to play in enhancing student achievement and well-being, closing gaps in student achievement and maintaining confidence in the province’s publicly funded education systems.” Education Act, s. 0.1(3).
[55] The focus of the Education Act is thus the public education system and the well-being and achievement of the students who participate in it, with the goal of ensuring they develop into caring, contributing citizens. It is the Board, and therefore its Trustees, who are in service to these objectives and not the public education system that serves a trustee’s objectives. This is made clear by the responsibilities of the Board under s. 169.1(1) of the Education Act, which includes, among others, promoting student achievement and well-being; the prevention of bullying; and “a positive school climate that is inclusive and accepting of all pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability[.]” The responsibilities under s. 169.1(1) of the Act are reinforced under s. 218.1, which requires that board members carry out their responsibilities in a manner that assists the board in fulfilling its duties, including under s. 169.1 of the Act, to maintain focus on student achievement and well-being, and to comply with the board’s code of conduct.
[56] The Board’s role in enhancing student well-being and maintaining public confidence under s. 0.1(3) of the Act is best served by ensuring good governance and adherence to the Code of Conduct. The preamble to the Code of Conduct recognizes that TCDSB Trustees have been entrusted with the education of all students in the community they serve and that the public is “entitled to expect the highest standard from the school trustees that it elects.” The Board should be responsive to the community and students it serves. In view of the legislative objectives, the Board and Trustees’ duties and the need for public confidence in the public education system, it was reasonable for the Board to apply the Reconsideration Provision to the Applicant’s Code of Conduct matter and to consider whether it might have got it wrong the first time.
[57] The Applicant’s submission, that the Board could apply the Reconsideration Provision to a finding of a breach but not a finding of no breach of the Code of Conduct has no basis in the statutory language of s. 218.3 or the Reconsideration Provision.
[58] Moreover, the Applicant’s submission that once a motion fails to obtain the requisite two-thirds majority to find a Code of Conduct breach, it can only be challenged by an application for judicial review, is impractical and cumbersome. Such a process would make it more difficult to ensure compliance with the Code of Conduct and would be contrary to the objectives of the legislation.
[59] Further, I would note that if the Education Act provided, as the Applicant suggests, a complete procedural code for Code of Conduct matters, the Board would not have had the authority to require a two-thirds majority to find a breach of the Code of Conduct under the By-law. The requirement of a two-thirds majority is also an aspect of the Board’s ability to govern its own processes. Had a simple majority been sufficient, the First Decision would have resulted in a determination that the Applicant breached the Code of Conduct.
[60] Accordingly, the Board’s application of the Reconsideration Provision to reconsider the First Decision was reasonable in view of the text, context and purpose of s. 218.3 of the Education Act and was not an exercise in reverse-engineering to obtain the desired result.
Was the Reconsideration Decision Reasonable in Light of the Doctrines of Res Judicata, Issue Estoppel, Abuse of Process and Functus Officio?
[61] The Applicant further submits that it was improper and contrary to the principles of res judicata, issue estoppel, abuse of process, functus officio and double jeopardy for the Board to reconsider the First Decision, which was, in his words, an “acquittal.”
[62] The Respondent submits that the principles of res judicata, issue estoppel, abuse of process, functus officio and double jeopardy have no application because the Board had authority to reconsider the First Decision. The Respondent further submits that even if those principles applied, the Board’s decision to reconsider was a reasonable exercise of its discretion.
Res Judicata and Issue Estoppel
[63] In my view, the Board’s conclusion that it was not precluded from reconsidering the First Decision by the principles of res judicata or issue estoppel was reasonable. As discussed above, the Reconsideration Provision authorizes the Board to reconsider its decisions, including in relation to Code of Conduct matters. Where such reconsideration is authorized, “[t]here is no finality to a tribunal’s decision for the purpose of issue estoppel”: D.J. Lange, The Doctrine of Res Judicata in Canada, 5th Ed., Ch. 2.6.
[64] Moreover, the Board’s decision not to apply the doctrine of issue estoppel is an exercise of discretion to achieve fairness in the circumstances: Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, 293 O.A.C. 248 at para. 81. As a result, the Board’s decision not to apply the doctrine or res judicata is entitled to deference.
Abuse of Process
[65] The Applicant submits that it was an abuse of process for the Board to reconsider the First Decision and that the Board was “corrupted by political influences” to substitute its initial decision with a finding that he breached the Code of Conduct.
[66] Like the issue of res judicata, given that the Reconsideration Provision authorized the Board to reconsider the First Decision, its finding that reconsideration was not an abuse of process was reasonable. Contrary to the Applicant’s submission, it was not improper for the Board to reconsider.
[67] Moreover, in my view, the nature of the decision-maker and process are relevant to this issue. Given the nature of the Board as a body of democratically elected Trustees responsible to their constituencies, teachers, students and staff, the Board is different from a court or an adjudicative tribunal. When the Board considers a Code of Conduct matter, it is acting in a more adjudicative role than it does when ordinarily considering matters of policy. However, pursuant to s. 218.3, such a decision is nonetheless made at a public meeting by resolution of the Board and not at an adversarial hearing with processes akin to courts or adjudicative tribunals. As a result, it is not unreasonable for the Board to be responsive to the community as opposed to entirely insulated from it.
[68] The evidence is that there was a public outcry in response to the First Decision. As a responsive body, the Board called a special meeting to address the issue. At that meeting, over the course of eight hours, numerous delegations including former students spoke to the impact of the First Decision on them. The Applicant’s counsel made both written and oral submissions. The Board took all of those submissions into consideration when it deliberated on the motion to reconsider the First Decision. The Board did not simply bend to public pressure and reverse the First Decision upon receiving a negative response.
[69] As a result, the Board’s decision that it was not an abuse of process to reconsider the First Decision was a reasonable one.
Functus Officio
[70] The general common law rule is that a decision-maker is functus officio when they make a final decision in respect of the matter before it”: Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, at p. 861. In Chandler, the Supreme Court held that:
As a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within [certain] exceptions….”
[71] The Supreme Court went on to say that the principle should not operate strictly in the administrative law context “where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation”: Chandler, at p. 862. See also: Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2014 ONSC 2552, at para. 6.
[72] Where the administrative decision-maker has authority to reconsider, it would not be functus officio: Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252, at paras. 62, 67-68. In that case, the Court of Appeal found that the express statutory authority to reconsider unsubstantiated complaints implied that there was no authority to reconsider substantiated complaints.
[73] Moreover, in Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission (2002), O.R. (3d) 245 (Div. Ct.) at paras. 26-27, this court found that the Building Materials Evaluation Commission had an implied legislative authority to reconsider decisions where public health and safety issues warranted. In doing so, the court cited the following paragraph from David Mullan:
[T]he prohibition on reconsiderations or rehearings was in the past explained as functus officio, res judicata, or estoppel by record. However, the rule applicable to administrative authorities is much more flexible than the doctrine of functus officio in regular court proceedings. Rather, it is more a general operating principle or rebuttable presumption. Finality in administrative proceedings is in general desirable but that may have to give way to other indicators either in statutory language, the nature of the process, or derived from the considerations of justice.
[74] In this case, the doctrine of functus officio did not apply to preclude reconsideration because the Reconsideration Provision provided the Board with the authority to reconsider. Based on the analysis above regarding the Reconsideration Provision, s. 218.3 and the duties of the Board under the Education Act, it was reasonable for the Board to find that it was not prohibited by the doctrine of functus officio from reconsidering the First Decision.
[75] Accordingly, for all the foregoing reasons, the Reconsideration Decision was reasonable.
Were the Decisions Reasonable?
The Parties’ Positions
[76] The Applicant’s main argument regarding the Merits, Sanctions and Confirmation Decisions is that they are “illegal” because the Board had no authority to reconsider the First Decision. The Applicant further submits that the Decisions “run afoul of Charter values, including the values underlying ss. 2(a), 2(b), 7, 11(a), 11(d), 11(h), 12 and 26 of the Charter.”[^2] The Applicant submits that the Board contravened the Charter by, among other things, punishing him for exercising his freedom of conscience, religion, thought, belief, opinion and expression and by imposing a mandatory penalty to “re-educate him to conform to politically correct speech that will not offend the sensitivities of those in opposition to Catholic teachings.”
[77] The Applicant takes the position that his comments constituted “rhetorical hyperbole” which does not violate the Code of Conduct. The Applicant relies on American case law to argue that such statements are constitutionally protected. The Applicant further submits that the purpose for which he used the statements was to fulfil his obligation as a Catholic Trustee to uphold and defend the s. 93 constitutional rights of his constituents.
[78] The Respondent’s position is that the Merits, Sanctions and Confirmation Decisions were reasonable in that pursuant to the applicable Doré/Loyola[^3] analysis, they reflect an appropriate balancing between the statutory objectives of the Board under the Education Act and the Charter values at play.
Findings
[79] In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada clarified the approach to be used when administrative decision-maker applies Charter values in the exercise of statutory discretion. The decision-maker must balance the Charter values with the statutory objectives, first by identifying the statutory objectives and then asking how the Charter values at stake will best be protected in view of the statutory objectives. The question for this court on judicial review is whether, when assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balance of the Charter protections at play. If the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.
[80] In my view, the Applicant, who did not address the applicable analysis under Doré/Loyola, has failed to demonstrate that the Board did not properly balance the Charter values at issue with its statutory objectives.
[81] As noted above, the Board has a statutory obligation to promote student well-being and a positive and inclusive school climate. The Board also has an obligation to enforce a minimum standard of conduct expected of its Trustees. All Trustees have an obligation to comply with the Code of Conduct and to assist the Board in fulfilling its duties. Sanctioning the Applicant for making disrespectful comments was not contrary to the Education Act, but consistent with the Act’s statutory objectives.
[82] Before making the Decisions, the Board had ample opportunity to consider the findings of the investigation report, the submissions from delegations who attended the meeting, and the Applicant’s lengthy written submissions as well as his counsel’s oral submissions. The Applicant’s submissions detailed his rationale for proposing the amendment and the legal arguments against reconsidering the First Decision. Those submissions included the Charter grounds upon which the Applicant relies. The Board was thus alert to the need to balance the statutory objectives, including its own obligations, against the Applicant’s Charter-protected interests.
[83] The investigation report was also alert to the Charter values at stake. The investigator accepted the Applicant’s submission that he was using rhetorical hyperbole to advance an argument. She found, however, that the Applicant’s inflammatory language crossed the line because it was disrespectful, not inclusive and lacking in compassion. The investigator specifically noted that the Applicant made his remarks knowing that members of the LGBTQ+ community were present at the meeting and that others who were not present would be able to access his remarks. In that context, the investigator found that by his remarks, the Applicant suggested that including criminal activity such as cannibalism and rape in the TCDSB Code of Conduct was somehow similar to including the Additional Grounds. In choosing the words that he did, the Applicant created an unwelcoming and harmful environment for certain members of the Catholic school board community. The investigator found that there was ample room for the Applicant to hold and act on his religious beliefs without using language that was distressing and demeaning to others, including students and the community he was entrusted with serving.
[84] The Applicant submits that he made the comments in order to fulfil his fiduciary duty as a Trustee of the TCDSB to ensure that the constitutionally protected denominational rights of Catholic electors are not infringed. However, the Applicant’s submissions disregard that the Decisions do not sanction him for holding certain religious beliefs or for debating the issue of extending the protected grounds under the TCDSB Code of Conduct. Rather, the Applicant was sanctioned for using extreme and derogatory rhetoric that fell below the standard of conduct required of a Trustee. In his factum, the Applicant characterizes the grounds that he proposed as “rare, deviant, illegal, immoral, repulsive, unusual behaviours[.]” The Applicant’s remarks did not reflect any sincerely held religious beliefs, as demonstrated by his own admission that he was using a rhetorical device, absurdity to try to demonstrate, in his view, absurdity. The Decisions thus did not interfere with the Applicant’s ability to hold or manifest a religious belief or to act in accordance with, practice or believe in a more than trivial manner. See: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 SCR 386.
[85] The Merits Decision reflects an appropriate balance between the statutory objectives and the Charter values at stake. The Applicant made his comments in his capacity as a Trustee, in a public meeting that included at least one delegate from the LGBTQ+ community who expressed vulnerability and alienation in the Catholic school system. The Applicant had a duty to “represent all the citizens in the Catholic community” in Toronto and to create a “positive environment that is safe, harmonious, comfortable, inclusive and respectful.” The Board’s determination that the Applicant breached the Code of Conduct by engaging in extreme, disrespectful and demeaning language was reasonable.
[86] Moreover, the Trustees who voted in favour of the Decisions are also Catholic trustees who are well-acquainted with their obligations, including to ensure that the mission of Catholic education is fulfilled. The Board is presumed to have expertise as to its processes and standards of behaviour: Dupont v. Port Coquitlam (City), 2021 BCSC 728, at para. 42 (regarding a city council). The Decisions are entitled to deference.
[87] I further note that the Applicant’s reliance on the concurring reasons of Kerans J.A. in Achtem v. Law Society of Alberta, 1981 ABCA 145, is misplaced. In that case, a majority of the Alberta Court of Appeal held that a provision authorizing the disbarment of a lawyer convicted of an offence, after a previous discipline proceeding, did not run afoul of the principle of double jeopardy.
[88] In respect of the Sanctions Decision in particular, this court has held that to overturn a penalty imposed by a regulatory tribunal, “it must be shown that the tribunal made an error in principle or that the penalty was clearly unfit, which is to say that it manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases.” Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.
[89] In a pre-Doré case, Kempling v. College of Teachers (British Columbia), 2005 BCCA 327, 255 DLR (4th) 169, the British Columbia Court of Appeal upheld the suspension of a teacher who, while off-duty, published a newspaper article and several letters to the editor associating homosexuality with “immorality, abnormality, perversion and promiscuity[.]” The Court of Appeal, conducting a s. 1 analysis, found that the suspension infringed on the teacher’s Charter rights but that the “deleterious effects of the infringement are, nonetheless, relatively limited when compared to the salutary effects, namely, restoring the integrity of the school system and removing any obstacles preventing access for students to a tolerant school environment”:Kempling., at para. 82.
[90] In my view, the Applicant has not met the high burden of establishing that the sanctions determined by the Board were manifestly excessive. The majority of the sanctions are provided for in s. 218.3(3) of the Education Act. The remainder are authorized by Article 10 of the Code of Conduct, which provides for a progressive approach to sanctions including “personal contact, clarification, redirection, request for an apology, reprimand, censure and or other sanctions as per board motion[.]”
[91] The Merits Decision, Sanctions Decision and Confirmation Decision reflect an appropriate balancing of the statutory objectives under the Education Act and the Charter values at issue. Accordingly, the Decisions are reasonable.
Was the Applicant Denied Procedural Fairness?
[92] The Applicant submits that he was denied procedural fairness because the Board did not accept or consider the December 14, 2020 Reply delivered by his counsel before making the Confirmation Decision. The Applicant submits that pursuant to s. 218.3(6)(c) of the Education Act and Article 2.10.6.3 of the By-Law, the Board was required to consider the Reply.
[93] Section 218.3(6)(c) of the Education Act states that “the board shall consider any submissions made by the member in accordance with clause (b) and shall confirm or revoke the determination within 14 days after the submissions are received.” Under s. 218.3(6)(b), the notice must “inform the member that he or she may make written submissions to the board in respect of the determination or sanction by a date specified in the notice…[.]” As a result, the Board was only required to consider written submissions submitted by the date specified in the notice. It was not required to consider submissions made after that date.
[94] In addition, Article 2.10.6.3 of the By-law requires that, if the Board determines that a member has breached the Code of Conduct, the Board consider “any submissions made by the member in accordance with Article 2.10.6.2…” That provision allows the member to make written submissions within a period of at least 14 days after they receive notice.
[95] Neither the Act nor the By-law provide for reply submissions. In addition, the timelines under s. 218.3(6) do not contemplate an extended exchange of material. The Board was required under s. 218.3(6)(c) to confirm or revoke the determination within 14 days after it received the Applicant’s written submission on December 3, 2020.
[96] At the December 16, 2020 meeting of the Board, the Applicant did not object to his Code of Conduct matter proceeding. In fact, he voted to approve the agenda for the meeting and did not object to the motion regarding the Code of Conduct matter being put forward, even though he knew that the Reply was not before the Trustees. Had the Applicant believed that he would be prejudiced by the Board’s inability to consider his Reply, he could have objected to the matter proceeding or brought a motion to postpone the matter to a future meeting. That he did not do so indicates that he was content for the motion to proceed.
[97] In any event, the Applicant raised no new substantive points in the Reply. The Reply repeated arguments made in his earlier written submissions, including res judicata, double jeopardy, abuse of process, the application of the Charter to school boards, and the lack of statutory authority to reconsider the First Decision. The Reply quoted excerpts from Vavilov to support an argument that a correctness standard of review would apply to the issue of whether the decision was res judicata. The applicable standard of review was unlikely to have an impact on the Board’s consideration of the motion.
[98] The Applicant was given a full opportunity to present his arguments to the Board. He was represented by counsel and filed a 440-page affidavit and 30-page legal submission. The Board’s failure to consider his Reply did not result in a denial of procedural fairness to him.
Conclusion
[99] Accordingly, the application for judicial review is dismissed.
[100] Given the outcome, I need not address the Applicant’s request for full indemnity costs. As the successful party, the Respondent would normally be entitled to costs. However, no cost outlines were uploaded to CaseLines or forwarded to the panel despite the parties having been given ten days after the hearing to do so. As a result, there will be no costs of the application.
“Nishikawa J.”
I agree: “R. Smith J.”
I agree: “Stewart J.”
Released: January 13, 2023
CITATION: Del Grande v. Toronto Catholic District School Board, 2022 ONSC 349
DIVISIONAL COURT FILE NO.: 139/21
DATE: 20221213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Smith, Stewart and Nishikawa JJ.
B E T W E E N:
Michael Del Grande
Applicant
- and -
Toronto Catholic District School Board
Respondent
REASONS FOR DECISION
Nishikawa J.
Released: January 13, 2022
[^1]: The Code of Conduct was amended in April 2012 and February 2016.
[^2]: For the reasons given above, the Code of Conduct proceeding was not a criminal proceeding and ss. 7, 11(a), 11(d), 11(g) and 12 have no application.
[^3]: Loyola High School v. Quebec (Attorney General), 2015 SCC 12.