Court File and Parties
Citation: Sloat v. Grand Erie District School Board, 2024 ONSC 3493 Court File Nos.: DC-23-248-JR and DC-24-266-JR Date: 2024-06-18 Superior Court of Justice - Ontario (Divisional Court)
Re: Carol Ann Sloat, Applicant (Moving Party) And: Grand Erie District School Board, Respondent (Responding Party)
Before: Gibson J.
Counsel: Jordan R.D. Lester, Counsel for the Applicant Mark Zega, Counsel for the Respondent
Heard: April 24, 2024
Endorsement
Overview
[1] The Applicant Carol Ann Sloat ("Trustee Sloat"), a Trustee of the Respondent Grand Erie District School Board ("GEDSB"), brings two stay motions seeking orders temporarily staying sanctions imposed against her for violating the GEDSB's Trustee Code of Conduct. The motions relate to the last two of a series of four judicial review applications commenced by the Applicant arising out of four separate findings that she violated the Trustee Code of Conduct.
[2] The Applicant is one of four trustees of the Board, representing the City of Brantford.
[3] On 15 May 2023, the Board determined that Trustee Sloat violated its Trustee Code of Conduct. On 4 December 2023 she was further found to have violated the Code of Conduct. Specifically, the Board found that she failed to maintain confidentiality of privileged information discussed in closed sessions, that she failed to fulfill her duties as set out in s.218.1 of the Education Act; and that she did not base her actions on unimpeachable conduct.
[4] The Board imposed the following sanctions: that Trustee Sloat be barred from attending (in person, virtually or by any other means) all meetings of the Board for December 2023, January and February 2024; that she be barred from attending all committee meetings from 1 April 2024 to November 2024; and that she receive a public censure.
[5] Trustee Sloat subsequently appealed the Board's decision, requesting that the Board hold the sanctions in abeyance. The request was denied and her appeal was dismissed on 18 December 2023. On 22 December 2023, Trustee Sloat filed a Notice of Application for the current proceeding, seeking an order in certiorari quashing the decision. A motion to stay the sanctions imposed in the Waldschmidt Complaint was served on 12 February 2024.
[6] On 29 May 2023, after receiving the sanctions imposed in the 15 May 2023 decision, Trustee Sloat left the trustee table and sat in the public gallery of the boardroom. She also attended the Board office on 5 June 2023 to observe a public meeting. On 15 June 2023, Trustee Elaine Thomas filed a Code of Conduct complaint against Trustee Sloat for attending the meetings. On 12 February 2024, Trustee Sloat was found to have breached the Board's Code of Conduct. The Board imposed the following sanctions: that she be barred from attending all meetings of the Board for March, April and May 2024; that she be barred from attending all committee meetings from 30 November 2024 to 31 May 2025; and that she should receive a public censure.
[7] Trustee Sloat subsequently appealed the decision. Shortly after the Board rejected her appeal, she filed a Notice of Application for the current proceeding, seeking an order in certiorari quashing the decision. She filed a motion to stay the proceedings in the Thomas Complaint on 21 March 2024.
[8] The four judicial review applications are scheduled to be heard in the October 2024 sittings of the Divisional Court.
Issue
[9] The issue in these motions is whether the Applicant has met the legal test to stay the decisions of the Board pending the Court's determination of the merits of her applications.
Law
[10] The Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311, at pages 334 and 338, has set out a three-part test for determining whether an injunction or a stay should issue:
a. A preliminary assessment must be made of the merits of the case to ensure that there is a serious issue to be tried;
b. It must be determined that the applicant would suffer irreparable harm if the injunction were refused; and
c. An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
Positions of the Parties
Applicant
[11] The position of the Applicant is that there is a very serious issue to be determined in her application, that she would suffer irreparable harm if the stay is not granted, and that the balance of convenience fall in her favour in the circumstances.
[12] She raises a variety of issues, including: that there was a reasonable apprehension of bias when the complainants were allowed to vote on the outcome of the complaint; that the decision was unreasonable; that the decision of the Board infringes her right to freedom of expression under s.2(b) of the Charter; that enforcing the sanctions during the appeal period constitutes an abuse of process; that the Board did not provide Trustee Sloat with sufficient reasons for its decision; that the Board does not have jurisdiction under the Education Act to impose the sanctions that it chose; and that the sanctions imposed are excessive in the circumstances.
[13] Regarding irreparable harm, Trustee Sloat submits that she has already missed the general Board meetings for December, January, February and March, as well as all committee meetings during this time. If the sanctions are not stayed, she asserts, the harm will be further exacerbated as she will not be able to participate in and/or observe important Board and committee meetings over the next several months. If the stay is not granted, she submits, then she will have been fully sanctioned, despite the fact that she disputes the findings against her. This, she asks, raises an obvious question: what is the point of seeking judicial review if the applicant is going to be punished regardless? She also says that she will suffer by being prevented from fulfilling her duties as an elected representative, and that this cannot be quantified in monetary terms.
[14] The balance of convenience weighs in her favour, Trustee Sloat submits, because while the stay will not cause any prejudice to the Board, she will be barred from performing her elected duties, and she will have been fully penalized by the time the matter is heard and decided on its merits.
Respondent
[15] The position of the Respondent GEDSB is that there is no serious issue to be tried, as the Board has fully complied with its procedural obligations under the Education Act, and that the Applicant was afforded procedural fairness; that the Applicant will not suffer irreparable harm if a stay is not granted; and that the balance of convenience favours denying the stay.
[16] The Respondent submits that it is master of its own procedure, which need not assume the trappings of a court. It cites the leading administrative law decisions of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, for the propositions that the duty of procedural fairness is eminently variable, inherently flexible and context specific, and that the factors to determine the content of the duty of procedural fairness include the nature of the decision and the process followed in making it; the nature of the statutory scheme; and the importance of the decision to the individual affected.
[17] The Respondent points to the recent decisions in Del Grande v. Toronto Catholic District School Board, 2023 ONSC 349, and Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508, as cases in which the court have given considerable deference to school boards in determining their own processes.
[18] The Respondent submits that the decisions were reasonable, the reasons were sufficient, and that the sanctions do not violate the Applicant's Charter rights. It submits that any harm to the electorate from the Applicant being barred from participating in meetings is wholly speculative.
[19] The Respondent further submits in its factum that "restricting the collective will of the elected Board as a whole is more significant than restricting the participatory rights of any one individual- particularly when the individual restriction is only for a few months."
[20] The Board notes that public censure has not, and will not, be issued in respect of the third and fourth decision pending the hearing of the applications in October.
Assessment
[21] The threshold to satisfy the criterion that there be a significant issue to be determined is a low one. It is to be determined by the court on the basis of common sense and an extremely limited review of the case on its merits.
[22] There are clearly significant issues to be tried in this matter, regarding the process followed by the Respondent, the reasonableness of its decisions, its jurisdiction, and the proportionality of the sanctions imposed. The sanctions purport to bar the Applicant from even observing the proceedings of the Board on a computer over the internet, as could any member of the public.
[23] The Del Grande and Ramsay cases do not stand for the proposition that a Board can essentially simply do whatever it wants, so as to obviate the necessity for a full hearing on the merits before a panel of the Divisional Court in this case.
[24] Irreparable harm refers to the nature of the harm suffered, rather than its magnitude, and includes situations where the harm either cannot be quantified in monetary terms or cured. The Applicant will suffer irreparable harm in being barred from meetings that she will never be able to attend: the clock cannot be rewound in this regard.
[25] The proposition advanced by the Respondent that "restricting the collective will of the elected Board as a whole is more significant than restricting the participatory rights of any one individual- particularly when the individual restriction is only for a few months" is not sustainable in this context. When an appeal will be rendered meaningless by the dismissal of a motion for a stay pending the determination of merits on the appeal, the balance of convenience weighs heavily in favour of the moving party: Ontario Council of Hospital Unions v. Clement (Ont. Div.Ct.) at para. 26. In this case, Trustee Sloat's application would be largely moot if she is successful after having served most of the sanctions.
[26] I find that the Applicant has fulfilled the requirements of demonstrating that there is a serious issue to be tried, irreparable harm if the stay is not granted, and that the balance of convenience favours her.
[27] The motions for a stay will be granted.
Order
[28] The Court Orders that:
- The sanctions that have been imposed on the Applicant Carol Ann Sloat by the Respondent Grand Erie District School Board are stayed pending a final order on the applications for judicial review.
Costs
[29] The costs of these motions are reserved to the panel of the Divisional Court hearing the applications for judicial review.
M. Gibson J.
Date: June 18, 2024