[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Kaplan-Myrth v. Ottawa Carlton District School Board, 2024 ONSC 4280

DIVISIONAL COURT FILE NO.: DC-24-00002849-0000

DATE: 2024-09-26

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. CORBETT, MATHESON and SHORE JJ.

BETWEEN:

Dr. Nili Kaplan-Myrth

Mark Freiman, counsel for the Applicant

Applicant

– and –

Ottawa Carlton District School Board

David P. Taylor and Sean Grassie, counsel

for the Respondent

Respondent

HEARD at Toronto: May 22, 2024

APPLICATION UNDER sections 2(1) and 6(1) of the Judicial Review Procedure Act, R.R.O. 1990, c.J.1

REASONS FOR DECISION

SHORE J.

[1] This is an application for judicial review of the Ottawa-Carlton District School Board’s (the “OCDSB" or the “Board”) decision, dated December 19, 2023, and their confirming decision, dated January 16, 2024, sanctioning the Applicant, Dr. Nili Kaplan-Myrth, for misconduct in her capacity as a school board Trustee.

[2] The Applicant seeks an order quashing the decisions of the Board. The Applicant also seeks a declaration that the decisions infringe her right to freedom of expression under s. 7 of the Canadian Charter of Rights and Freedoms.

[3] The Applicant brought a motion at the start of the hearing to permit fresh evidence.

[4] For the reasons set out below, the motion for fresh evidence is granted but the application is dismissed.

A. Background and Context

[5] The parties:

a. The OCDSB is a public-school board for the Ottawa-Carlton district. The OCDSB exercises statutory authority under the Education Act, R.S.O. 1990, c. E.2 (the “Act”). Board members may be referred to as trustees: s.1(12) of the Act.

b. The Applicant is a Trustee for OCDSB. She was first elected as a Trustee in October 2022.

[6] The roles and responsibilities of the Board of Trustees are governed by the Act.

[7] In 2009, the legislature amended the Act. The amendments included a clarification of the duties of Trustees, a requirement to adopt a Code of Conduct for Trustees, and a process to determine if a Trustee has breached the Code of Conduct, along with permissible sanctions. The following relevant provisions were added to the Act:

a. Section 218.1 imposes certain statutory duties on trustees, including the duty to “maintain focus on student achievement and well-being” and the duty to “comply with the board’s code of conduct”.

b. Section 218.2(2)(a) provides that the Minister of Education (the “Minister”) may make regulations requiring a board to adopt a code of conduct that applies to trustees.

c. Section 218.3 sets out a process for determining whether a trustee has breached a code of conduct and, if a breach is found, permitting a board to impose one or more of the following sanctions:

i. censure of the trustee;

ii. barring the trustee from attending all or part of a meeting of the board or a meeting of a committee of the board; and

iii. barring the trustee from sitting on one or more committees of the board, for the period of time specified by the board.

a. Section 218.3(11) provides that at an open meeting of the board, the board shall vote on a resolution to determine:

i. Whether the member has breached the board’s Code of Conduct;

ii. Impose a sanction;

iii. Confirm or revoke a previous determination; and/or

iv. Confirm, vary or revoke a sanction.

[8] In 2018, the Minister issued a regulation pursuant to s. 218.2(2)(a) of the Act requiring all school boards to adopt a Code of Conduct for their trustees.

[9] On May 9, 2023, the OCDSB, including the Applicant in her role as a Trustee, approved a revised Board Member Code of Conduct (the “Code of Conduct” or the “Code”), in accordance with Members of School Boards – Code of Conduct, O. Reg. 246/18, issued under s. 218.2 of the Act.

[10] On September 19, 2023, a complaint was made under s. 218 by another Trustee to the Integrity Commissioner (the “IC”) with respect to the Applicant and two other Trustees, alleging that they violated the Code of Conduct. The essence of the complaint regarding the Applicant was that she was rude, insulting, intimidating and disrespectful of both the Board and the rules put in place for decorum at Board meetings.

[11] More specifically, the incidents raised in the complaint with respect to the Applicant that concerned the IC can be summarized as follows:

a. On September 11, 2023, the Board was scheduled to hold a meeting to consider a prior complaint against the Applicant, alleging the Applicant breached the Code of Conduct. On September 8, 2023, the Applicant posted a comment on her X account regarding the upcoming meeting as follows:

[T]he OCDSB will hold a “special board meeting” in which the conservative trustees are putting me on trial (code of conduct, kangaroo court). They have call me a “racist” and disrespect[ful] for privately saying to a fellow trustee that there is a link between anti-maskers and white supremacy, and for privately saying to another trustee that the trustees who vote against masks don’t care about vulnerable populations. They aren’t allowing me to speak about it. I’m not even allowed to defend myself at the trial. But once it is public, I can and will speak. I need allies to speak out on my behalf. As in, write a letter to the Ottawa Citizen…. Please don’t let the OCDSB get away with this.

b. The Applicant further posted in advance of the meeting: “If the ban on my speaking about the upcoming kangaroo court was even constitutional before, which is in dispute, surely I can respond publicly on Monday when that information is public. This is an organized attack on me … whether OCDSB intended it or not”.

c. The meeting took place as scheduled, on September 11, 2023. Pursuant to the Act, the Applicant was not permitted to be present at the in-camera meeting. The Applicant was permitted to be present at the subsequent special Board meeting when they voted on the resolution, but she was not permitted to participate in the discussions or vote as per the rules. These rules were reemphasized at the start of the meeting by the Chair. Nonetheless, while another Trustee was speaking, the Applicant interrupted the meeting and shouted, “You have had it out for me since day one”. Later on, in that same meeting, when the same Trustee stated that the Applicant was a “white woman attacking a Black woman”, the Applicant interrupted again and said, “I object, you will not characterize me as a white woman. I am a Jewish woman who has received daily antisemitic death threats for standing up for health and safety. You have been out to get me from day one”.

d. Immediately following the September 11 meeting, the Applicant went to an area designated by Board staff for members of the media. The Applicant pointed to two individuals waiting outside the media room and shouted “Out! Out! Out!” The Applicant then blocked the doorway and demanded in a raised voice that another Trustee and all media leave the room, except for the journalists with whom the Applicant wished to speak.

e. Following the September 11 meeting, the Applicant made various statements to journalists and on social media that were critical of particular Trustees and/or the Board and its process, including:

i. It was “ironic to see [Trustee Dickson] play in a sandbox with the far right. Whatever, call me a “bully” for saying we should protect students and staff from #COVID19 in #Ottawa. […]”;

ii. The Board has a “toxic pattern of conservative trustees abusing its ‘code of conduct’ process to try to silence progressives. WHAT A BLOODY WASTE OF MONEY, TIME, AND ENERGY. THIS HAPPENS ACROSS #ONTARIO, IS GOING ON NOW AT @UCDSB. THE TOXICITY IS A PATTERN AT @OCDSB”;

iii. “IRONIC THAT CONSERVATIVES SAY DON’T FOCUS ON ‘DIVISIVE’ ISSUES”;

iv. That a fellow Trustee was “out to get” her; and

v. “The #Ottawa public school unfortunately has a toxic pattern of conservative trustees abusing its ‘code of conduct’ process to try to silence progressives. I was warned ahead of time. I’m the 2023 target. I refuse to be silent.”

f. On September 16, 2023, the Applicant reposted on X a post from her lawyer which included the following: “Blab all you like, but the Board’s attempt to punish this ‘pariah’ [the Applicant] failed. Plus the idiot who moved the failed motion to punish her is herself guilty of racism and harassing a Black child, says the Board”.

g. Finally, as explained in more detail below, a letter was sent to several individuals, alleging bad faith actions by the Board’s staff.

[12] As a result of the complaint, on October 1, 2023, the IC notified the Applicant of the complaint, provided details of the allegations, and advised that they were initiating a formal review.

[13] On October 12, 2023, the Applicant provided the IC with a 39-page detailed response, including her detailed response to facts alleged in the complaint and legal submissions by counsel.

[14] On November 22, 2023, the IC provided their draft report to the Applicant. There is nothing in the review process that required the IC to provide a copy of the draft report to the Applicant, but the IC did so at the Applicant’s request.

[15] On December 1, 2023, the Applicant provided a further 39-page response to the IC, responding to the draft report.

[16] On December 12, 2023, the IC released its final report to the Board. The report included an overview with respect to the complaints regarding all three Trustees and then three separate reports and recommendations, one for each Trustee.

[17] The IC made the following relevant findings and recommendations regarding the Applicant:

a. The Applicant’s statements and her conduct at the September 11 meeting violated ss. 3.7[^1] and 3.8[^2] of the Code of Conduct;

b. The Applicant’s statements and her conduct immediately following the September 11 meeting violated ss. 3.5,[^3] 3.7, and 3.8 of the Code of Conduct;

c. The Applicant’s statements to journalists and on social media between September 8 and 16, 2023 violated ss. 3.5, 3.7, 3.8, 3.15,[^4] 3.17,[^5] and 3.18[^6] of the Code of Conduct; and

d. The Board should impose the following sanctions for the foregoing violations:

i. bar the Applicant from attending the next Board meeting; and

ii. bar the Applicant from attending committee meetings for a period of time to be determined by the Board.

[18] The Board was also provided with both sets of the written submissions from the Applicant in advance of the meeting.

[19] On December 19, 2023, the Board held a meeting, during which the findings and recommendations of the IC were debated and voted on. The IC was present for the relevant part of the meeting and responded to questions about the report and the recommendations.

[20] After approximately one hour of deliberations, the Board voted as follows:

a. 11-0 in favour of finding that “[u]pon review of the facts as documented in the Integrity Commissioner’s final report”, the Applicant had breached ss. 3.5, 3.7, 3.8, 3.15, 3.17 and 3.18 of the Code of Conduct.

b. 10-1 in favour of imposing sanctions that included suspending the Applicant for the next regular Board meeting, and from participating in all committees of which she was a member, for three months.

[21] On January 8, 2024, the Applicant appealed the decision by delivering a 15-page appeal submission to the Board.

[22] On January 16, 2024, the Board held a special meeting to debate and vote on the Applicant’s appeal. The Board rejected the Applicant’s appeal and confirmed its December 19, 2023, decision, by a vote of 11-0. The Board also confirmed the decision with respect to the sanctions, by vote of 10-0 (with one abstention).

[23] Finally, on January 24, 2024, the Applicant applied for judicial review, seeking an order quashing the two decisions of the Board.

[24] An interim stay of the decision of the Board pending the outcome of the judicial review was issued, pursuant to the order of Labrosse J., dated February 2, 2024.

B. The Motion for Fresh Evidence

[25] In respect to the motion to adduce fresh evidence, the test is set out in Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). Fresh evidence is admissible only in exceptional circumstances, namely, to provide background information to demonstrate an absence of evidence on an essential point, or to show a breach of procedural fairness that cannot be proven with reference to the record: Windrift Adventures Inc v. Chief Animal Welfare Inspector, 2023 ONSC 4501 (Div. Ct.), at para. 34 [leave to appeal to Ont. CA denied January 23, 2024], citing Keeprite.

[26] One of the incidents set out in the complaint related to an email the Applicant sent in September 2023 to all Trustees, senior Board staff, and several third parties, regarding a safety plan that Board staff had implemented for the Applicant in response to threatening messages received by the Applicant.

[27] In the email, the Applicant states that “toxicity” existed within the Board and alleges that Board staff had made inappropriate comments about her and had decided “in bad faith” to release information about her safety plan to a media outlet, Rebel News. In the report to the Board, the IC commented that this email breached the Code of Conduct, by publicly accusing staff of bad faith in releasing personal information and it was unclear if staff had acted inappropriately.

[28] It is with respect to this incident that the Applicant is seeking to introduce fresh evidence, to support her position that staff were responsible for releasing personal information to Rebel News, and that it was not just an accusation or assumption on her part.

[29] The Applicant seeks to introduce a letter from the Information and Privacy Commissioner (the “IPC”), which confirms that it found that staff released personal information about the Applicant, that is, the opinion of staff with respect to the Applicant’s conduct. The IPC decided not to pursue any further action because it was satisfied that changes and policies were subsequently put into place to prevent this from happening again in the future.

[30] The proposed evidence clarifies that the staff was responsible for and acted inappropriately in releasing the Applicant’s personal information. This is new evidence that was not available or obtainable at the hearing below. The proposed evidence is not controversial (that is, it does not require re-opening the fact-finding process or responding evidence from the respondents), and it adds some weight to the Applicant’s explanation about why she was as upset as she was about the events giving rise to her impugned conduct.

[31] However, the fresh evidence does not affect the outcome of this application. The conduct of concern was how the Applicant raised the issue, not that she raised it or whether it was true or not. Page 178 of the IC’s report states:

[t]he manner in which she conveyed her concerns to staff was accusatory, and this is problematic. Trustee Kaplan-Myrth could have contacted the Director of Education or the Executive Officer to ask if they were aware of what was disclosed to the media and by whom; however, it was inappropriate for her to send out a memorandum broadly in which she accused staff of unlawfully disclosing her information to media outlets.

[32] As was the case for much of the case against the Applicant, the issue was not the substance of the views she wished to address, but the manner in which she did so: as a Trustee she was required to observe standards of civility while advancing her views and concerns. Even though the fresh evidence does add support to the Applicant’s explanation as to why she was as upset as she was, and so should be admitted to provide a complete record of the background events, it would not lead to a different disposition of the ethics complaint: standards of civility apply whether a Trustee is reasonably upset or not, and the Applicant’s failure to ever acknowledge that her conduct “crossed the line” – even in light of her reasonably being upset – was the basis of the findings and sanctions against her.

C. The Issues for Judicial Review

[33] The application for judicial review raises the following issues:

a. What is the standard of review?

b. Was the decision reasonable?

c. Was the Applicant denied procedural fairness?

d. Was the decision on the sanctions reasonable?

a) Standard of Review

[34] The parties agree that the applicable standard of review is reasonableness: Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16-17.

[35] The standard of review for questions of procedural fairness is “fairness” or “correctness” (see Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 and Zarei v. Afsharian 2023 ONSC 5317, para. 2). Findings of fact are reviewed on a standard of reasonableness, and this principle applies to factual findings related to procedural fairness issues. However, the requirements of procedural fairness, in light of the facts, as found, are assessed on a “correctness” or “fairness” standard (see Blackstone Paving v. Barrie (City of), 2024 ONSC 4556, at para. 4 ).

[36] With respect to decisions imposing sanctions, the court must defer to the Board unless the Applicant establishes an error in principle or that the sanctions are clearly unfit Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.

b) Was the decision reasonable?

[37] The standard of reasonableness is founded on an attitude of deference to the administrative decision maker. Reasonableness is distinguished from correctness because a court conducting a reasonableness review must focus on the decision that was actually made by the administrative decision maker and the justification for it, and not on the conclusion the court would have reached if it had made the decision. As the Supreme Court explained in Vavilov, at para. 13:

Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.

[38] The Applicant submits that pursuant to the court’s decision in Vavilov, there are two grounds under which the decision of the OCDSB is unreasonable:

1. The decision is untenable in light of the relevant legal constraints; and

2. Failure of rationality internal to the reasoning process.

i. Legal Constraints

[39] The Applicant does not dispute that she made the statements on social media and at and after the Board meeting, as set out above. However, the Applicant submits that she has a constitutional right to criticize the Board and that this right cannot be restricted by the Code of Conduct.

[40] The Applicant submits that the statements that formed part of the complaint to the IC and for which she was being sanctioned, were protected by her freedom of expression rights under s.7 of the Charter and the Board was not justified in using the Code of Conduct to limit those rights. I disagree. Freedom of expression is a fundamental right, but not without limits.

[41] Judicial review of administrative decisions that engage the Charter are governed by the two-part approach set out by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and recently restated as follows:

a. A reviewing court must first determine whether the decision limits Charter protections.

b. If so, the court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them and the government’s interests in a given case. If not, the decision is unreasonable: see Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para. 73.

[42] There is no dispute between the parties with respect to the first part of the test. The parties agree that the decision of the Board, and the sanctions for the Applicant’s statements that the Board determined were contrary to the Code, limited the Applicant’s freedom of expression under s. 2(b) of the Charter.

[43] The Act limits freedom of expression, in that it requires all school board members to maintain focus on its objective and comply with the board’s code of conduct.

[44] The question before this court is whether the decision reflects a proportionate balancing of the various interests and rights as required under Doré. If not, the decision is unreasonable.

[45] The IC report deals with the Applicant’s Doré arguments directly and in considerable detail, including the following:

a) At page 32 of the report, the IC specifically states, “I have set out the relevant Charter values and weighed them against the objectives of the Education Act and Code in deciding whether to recommend that the Board find a Code violation.”

b) At page 179 of the report it states,”[The Applicant], as each Trustee, has a right to share her opinion and participate on social media, she has a right to call out and denounce racism, antisemitism and all forms of discrimination, oppression and hate. However, disparaging the Code and the Code process is not appropriate criticism. The Code rules prohibiting actions that denigrate, intimidate and undermine approved policies of the Board are important in a free and democratic society to justify some limitation on Charter rights …. While elected municipal officials are free to vigorously debate and discuss matters of public interest, they must act reasonably and satisfy themselves as to the truth of any allegations.”

c) Finally, there are four pages of the report specifically dedicated to the issue of freedom of expression as a Charter-protected right and the limits imposed by the Code of Conduct.

[46] The Applicant made the same Charter arguments in her extensive written submissions to the IC, which submissions were also before the Board for consideration, as well as in her submissions for the appeal before the Board.

[47] The Board held the required public meeting, at which the findings and recommendations of the IC were debated. After about one hour of deliberation, the Board voted. As set out above, the Board decided that the Applicant breached certain sections of the Code of Conduct. The Board concluded that the Applicant should be barred from attending one Board meeting and from sitting on certain committees for three months. The Board held a second public meeting to debate and vote on the Applicant’s appeal and confirmed its prior decision.

[48] The Code of Conduct’s stated purpose is to “establish a standard of conduct and a mechanism for managing inappropriate conduct” for trustees in discharging their duties. The Code of Conduct does not restrict trustees from expressing views but limits the manner in how they express those views. It requires civility and respect in expressing those opinions.

[49] The Applicant was sanctioned for how she spoke out; by targeting the Board and her fellow Trustees, including on social media, in a manner that “fueled continuing public confusion over the credibility of management of the Board and resulted in the discrediting and compromising of the integrity of the Board”.

[50] As in Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508, the Board was clearly alive to the Applicant’s right to free expression, “which had been addressed at length by the Integrity Commissioner” as well as in the Applicant’s own comprehensive submissions: at para. 58.

[51] In Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, deference was afforded to the College in interpreting and applying its own Code of Conduct:

The ICRC’s concerns related to the public interest in members of the College avoiding the use of demeaning or degrading language. In Trinity Western, at para. 38, the Supreme Court observed that a regulator’s interpretation of the public interest, based on its expertise, is owed deference. Similarly, in Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769, at para. 147, this Court gave “significant deference” to the expertise of a disciplinary committee to assess whether a member's conduct was relevant to their suitability to practice, as the members of the committee, which included members of the profession, were “well-situated to assess the harm to the profession, the public, and to the reputation of the profession” by the member's conduct. The ICRC is made up of a majority of professional members. Deference should also be afforded its assessment of the risk of harm to the public and the profession in this case: para. 45

[52] The OCDSB reviewed its own Code and expressed concern that the Applicant’s statements and behaviour may be inconsistent with its professional standards and could undermine public trust. The decision of the Board is to be given deference in these circumstances.

[53] As this Court recognized in Del Grande, the Board has a statutory obligation to enforce a minimum standard of conduct expected of its Trustees and is presumed to have expertise in enforcing that standard. It was entirely consistent with the Education Act for the Board to enforce its Code of Conduct against the Applicant. In its report, the IC stated as follows:

[The Applicant], as each Trustee, has a right to share her opinion and participate on social media, she has a right to call out and denounce racism, antisemitism and all forms of discrimination, oppression and hate. However, disparaging the Code [of Conduct] and the Code process is not appropriate criticism. The Code rules prohibiting actions that denigrate, intimidate and undermine approved policies of the board are important in a free and democratic society to justify some limitation on Charter Rights … While elected municipal officials are free to vigorously debate and discuss matters of public interest, they must act reasonably and satisfy themselves as to the truth of any allegations.

[54] The decisions represent a reasonable and proportionate balancing of the Applicant’s expressive rights with the Act’s objectives. Applying Doré, the Applicant has not shown a basis for this court to intervene.

ii) Rationality of Decisions

[55] To be reasonable, a decision must be based on reasoning that is both rational and logical: Vavilov at 102. There must also be a rational chain of analysis from the evidence to the outcome: Vavilov, at paras. 103-104.

[56] The Applicant submits that the decision lacks rationality in that:

a. The report contains circular reasoning and unfounded generalizations (internal logic); and

b. The report misunderstood the nature of the relationship between the Trustee and the Board.

Internal Logic

[57] The Applicant submits that the report lacks internal logic. The Applicant is asking the court to embark on a line-by-line analysis for errors in the lengthy IC report contrary to Vavilov, at para. 102:

Reasonableness review is not a “line-by-line treasure hunt for error”. However, a reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. [Citations omitted.]

[58] The burden is on the party challenging the decision to show that it is unreasonable. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision”: Vavilov, at para. 100.

[59] The Applicant included a marked-up copy of the report, in which she conducts a line-by-line analysis of the IC report. Again, it is not the IC report that is subject to this judicial review.

[60] The Applicant has not met her burden of showing that any of the shortcomings are more than superficial and peripheral to the decision.

[61] This Court stated in Peterson, at paragraph 74, that reasons “must not be assessed against a standard of perfection”, they need not include all arguments, nor should we expect or require administrative decision-makers to “deploy the same array of legal techniques that might be expected of a lawyer or judge”: Vavilov, paras. 91-92.

[62] The issue of sufficiency of reasons was addressed in Ramsay, starting at paragraph 54, as follows:

54 The WRDSB argues that the reasons provided were sufficient. 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 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.

55 The context within which the decision was made was an administrative one, where the WRDSB was enforcing its Code of Conduct as part of the discretion granted to it by statute to manage its own affairs. The trustees had ample opportunity to review and consider the factual findings contained in the Integrity Commissioner's report, as well as the submissions made by Ramsay. They were well positioned to balance statutory and policy objectives in coming to a decision. The notice of the decision references the findings of the Integrity Commissioner's report which implicitly accepts the findings of fact made by the Integrity Commissioner.

[63] The same facts are present in this case. As set out above, the Board had the IC report, as well as the Applicant’s lengthy submissions in advance of the meetings. On December 19, 2023, the Board held a meeting in which the findings and recommendations were debated and voted on. On January 16, 2023, a special meeting was held during which the Applicant’s appeal was debated and voted on.

[64] At paragraph 84 of Vavilov the SCC emphasizes that “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that "[r]easonableness is a single standard that takes its colour from the context”.

[65] At paragraph 94, the Court carried on to state that:

The reviewing court must also read the decision maker's reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker's work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker's reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.

[66] Considering the context in which the decisions were made and the content of the IC report and the Applicant’s submissions, I find that the decision is reasonable, and the reasons are adequate.

Nature of Relationship between the Trustee and the Board

[67] The Applicant submits that a trustee’s fiduciary obligation is to the electors and to the children of the district and there is no obligation on a trustee to abstain from criticism of the Board or its processes. I would not accept this argument.

[68] As a Trustee, the Applicant has a statutory obligation to comply with the Code of conduct. Section 218.1 of the Act requires all Board members to comply with the Board’s Code of Conduct.

[69] In Ramsay, this court concluded that it was reasonable for the respondent board in that case to sanction the applicant trustee for criticizing the board and its processes, including on the trustee’s personal social media accounts. In so holding, this court found that the board’s code of conduct was designed to maintain “the integrity and dignity of [the Applicant’s] office, civil behaviour, compliance with legislation and upholding of decisions of the board.”

[70] Likewise, in Del Grande v. Toronto Catholic District School Board, 2023 ONSC 349, 13 Admin. L.R. (7th) 133, this court concluded it was reasonable for the respondent board to sanction the applicant trustee for making inflammatory remarks during a board meeting. Like the Applicant, the trustee in that case argued that he had made the impugned comments “to fulfil his fiduciary duty as a Trustee” to his “electors”. The court expressly rejected this argument.

[71] As in this case, the Board in Del Grande did not sanction the Trustee for his views, but for the manner in which he expressed those views – by using “rhetoric that fell below the standard of conduct required of a Trustee”: at para. 84.

[72] For these reasons, I dismiss the Applicant’s claim that the IC or the Board misunderstood the relationship between the Trustee and the Board including the application of the Code of Conduct to the Trustee.

c) Did the Board afford the Applicant procedural fairness in reaching the decision?

[73] The Applicant submits that:

a. the procedure and process were structurally unfair and lacked in natural justice, by denying the Applicant the right to defend herself before the Board or her constituents. She submits that the procedure is intrinsically unfair because she was “entirely prevented from defending herself or enlisting any support for herself and that she would not even be allowed to make representations to the Board”;

b. the IC reformulated the complaint for the purpose of the report so as to change its focus, introducing new allegations not evident in the original complaint;

c. there was material in the report that was prejudicial with no probative value and matters raised by the Applicant that were not mentioned.

i) Was the process structurally unfair?

[74] While the Act requires that a board enact a code of conduct, it does not prescribe the standards or content. The legislature intended for conduct issues to fall within a board’s authority, which enables a board to act in a flexible and dynamic manner, responsive to the community it serves: Del Grande, at para. 53.

[75] As articulated by the Supreme Court of Canada in Baker, at para. 23, the nature of the decision and the process followed in making the decision are factors to be considered when determining what is required to meet the duty of procedural fairness in a particular case. However, as set out at para. 27 of Baker, considerable weight must be given to the choice of procedures made by the agency itself and its institutional constraints when assessing the requirements of procedural fairness, particularly when the statute leaves the decision-maker the ability to choose its own procedures, as is the case here.

[76] The Code of Conduct outlines the Board’s choice of procedure for considering an alleged breach:

c. A trustee who believes that another trustee has breached the Code of Conduct may file a complaint in writing with an independent third-party reviewer, the “Integrity Commissioner”.

d. If the complaint cannot be resolved informally, the Integrity Commissioner conducts a formal review and issues a final report which must:

i. outline the facts found;

ii. make a recommendation as to whether there has been a breach; and

iii. make a recommendation regarding a sanction, if required.

e. As part of this process, the respondent trustee is entitled to meet in private with the Integrity Commissioner and to provide written submissions in response to the complaint.

f. After receiving the Integrity Commissioner’s report, the Board meets to deliberate and vote on whether to accept the recommendations on breach and sanctions. A two-thirds majority is required to approve each recommendation. The respondent trustee may be present during the Board’s deliberations, but they may not participate or vote.

g. If the Board finds a breach, the trustee may appeal to the Board, who must either confirm or revoke the determination within 14 days, again by a two-thirds majority vote.

h. A trustee who is alleged to have breached the Code shall not, in any way, after the final report is completed, influence the vote on the decision of breach or sanction, except to appeal after the decisions have been made.

[77] The Applicant herself voted to approve this process in May 2023.

[78] The decision in Del Grande addressed the degree of procedural fairness a school board owes one of its trustees when enforcing its code of conduct in the context of alleged inappropriate trustee conduct. The court states, at paras. 50-51:

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…. 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.

…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.

[79] Before making the decisions, the Board had ample opportunity to consider the Applicant’s lengthy written submissions to the Board, as well as the submissions in support of her appeal to the Board. The Applicant was not denied the opportunity to defend herself.

[80] With respect to the impact of the decisions on the Applicant, it is modest. The decisions reflect on the Applicant’s reputation as a Trustee, and she therefore has an interest in participating in the complaint process. However, when balanced against the other Baker factors, the individual impacts do not warrant a higher level of procedural fairness than what is provided for in the Code of Conduct.

[81] I do not find that the process was structurally unfair.

ii) Reformulated Complaint

[82] The Applicant submits that the complaint was reformulated by the IC, and she was not given an opportunity to respond.

[83] In her response to the draft report, the Applicant specifically expressed concern that the report reformulated the complaint and the Applicant’s initial response was focused on the original complaint, not the reformulated complaint. The IC addressed this concern at page 23, saying that the reformulated complaint:

did not introduce any new allegations for which the Respondents did not receive notice when first advised of the Complaints. The reformulated complaint was a way to take all of the allegations and organize the analysis in such a way that as the fact-finder, I could present the fact-finding Global Report to the Board in a way that they could consider the vast amount of information and pivot to the Findings Reports for each individual Respondent…. simply a re-stating of the already stated allegations.

[84] The Respondent notes that the IC report is not reasons for decision of the Board, and that, even if it was, this is really a complaint about the drafting choices made in that report. I find that the reformulated complaint does not give rise to any issues of procedural fairness. The Applicant had the opportunity to review and respond to the IC report and has not shown how any reformulation created a procedural unfairness.

iii) Choice of Material included in IC Report

[85] The Applicant submits that the process was unfair because the report included prejudicial material with no probative value and omitted matters raised by the Applicant. The Applicant has provided a few examples in support of this ground and describes the most egregious as the reference to certain events that gave rise to another complaint that was not before the IC in this report.

[86] The IC acknowledged in the report that not all of the information was strictly relevant to the analysis but that:

i. some information was required for context;

j. some was in response to comments by the Applicant; and

k. some was removed from the final draft of the report.

[87] The IC report was very lengthy and included extensive references to the Applicant’s responses to the complaints. I do not find that the reference to the few events raised by the Applicant on this application give rise to a procedural unfairness. The submissions on this ground are more in the nature of the line by line search for error that is precluded under Vavilov. The Applicant had the opportunity, in her written submissions to the Board, to raise any issues with the Board about the IC report and the Applicant has not shown that the Board’s deliberations were wrongly focused on another complaint. Further, the basic facts underlying the complaint were not in dispute, nor was the context of the Board decisions, and . I conclude that there is no denial of procedural fairness in the choice of material in the IC report.

d) Sanctions

[88] The Applicant submits that the sanctions imposed by the Board are excessive and disproportionate but provides very little reason for her position.

[89] As set out above, with respect to decisions imposing sanctions, the court must defer to the Board unless the Applicant establishes an error in principle or that the sanctions are clearly unfit, that is, the Applicant must show that it “manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases”: see Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77; Del Grande, at para. 88.

[90] The sanctions provided for by the Board are provided for under s. 218.3(3) of the Act and are similar to sanctions given in other cases. There was no censure or apology required. The sanctions were not excessive or disproportionate.

[91] The Applicant has failed to meet her burden in establishing that that in the sanctions meted out by the Board, there was an error in principle or that the sanctions were clearly unfit.

D. Conclusion

[92] The application for judicial review is dismissed.

E. Costs

[93] The OCDSB has been successful in responding to this application. The parties agreed to costs of $7,500 to the successful party.

F. Order

[94] The application is dismissed.

[95] The Applicant shall pay costs to the respondent in the sum of $7,500, inclusive of disbursements and HST.

“Shore, J.”

“D.L. Corbett, J”

“Matheson, J.”

Released: September 26, 2024

[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Kaplan-Myrth v. Ottawa Carlton District School Board, 2024 ONSC 4280

DIVISIONAL COURT FILE NO.: DC-24-00002849-0000

DATE: 20240926

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Dr. Nili Kaplan-Myrth

Applicant

– and –

Ottawa Carlton District School Board

Respondent

REASONS FOR DECISION

Released: September 26, 2024

[^1]: Section 3.7 requires trustees to “uphold the dignity of the office and conduct themselves in a professional manner, especially when representing the Board, attending Board events or while on Board property.”

[^2]: Section 3.8 requires trustees to “ensure that their comments are issue-based and not personal, demeaning or disparaging with regard to Board staff or fellow [trustees].”

[^3]: Section 3.5 requires trustees to “discharge their duties loyally, faithfully, impartially and in a manner that will inspire public confidence in the abilities and integrity of the Board.”

[^4]: Section 3.15 prohibits trustees from engaging in conduct that would “discredit or compromise the integrity of the Board during meetings of the Board or at any other time.”

[^5]: Section 3.17 requires trustees to “treat members of the public, one another, students and staff members respectfully and without abuse, bullying or intimidation,” including “via social media”.

[^6]: Section 3.18 requires trustees to comply with similar “behavioral expectations” referenced in other Board policies.