Ontario school boards have recently come under heightened public scrutiny regarding their spending on travel and team retreats, and concerns over trustee conduct. Before the recent amendments to the Education Act, school boards were responsible for investigating and determining trustee code of conduct breaches. While these responsibilities now fall under board-appointed integrity commissioners, recent court challenges to board decisions on trustee conduct provide important guidance on issues of fairness, reasonableness, and how to consider a trustee’s Charter rights when making these determinations.
One recent judicial review, Sloat v Grand Erie District School Board, 2024 ONSC 6209, offers a cautionary tale about the importance of protecting procedural rights and ensuring that decision-makers have a full understanding of the facts before rendering their decisions.
While Trustee Sloat was first elected in 2003, the story of this case begins in May 2023. This was when the board of trustees made the first of four separate decisions that found Trustee Sloat in breach of its code of conduct. In the four decisions, which span less than a year, the board of trustees found that Trustee Sloat breached the code of conduct in numerous ways, including by disclosing confidential information when filing a complaint to the Ontario Ombudsman and in a court filing, by having inappropriate communications with school principals, staff and parents, and by attending board meetings as a member of the public.
The cumulative sanctions from the four decisions included bans from attending board meetings for a year and serving on committees for two years. The board's complaint protocol did not allow Trustee Sloat to make verbal submissions or respond to questions during deliberations. Trustee Sloat appealed the decisions internally to the board without success.
After her failed appeals, Trustee Sloat filed an application for judicial review. She argued that she was denied procedural fairness, that the board's decisions were unreasonable, and the sanctions were excessive. Lastly, she argued that the board failed to consider her freedom of expression rights under section 2(b) of the Charter.
The court closely examined the board’s process for determining that Trustee Sloat violated its code. The board had hired a third-party investigator to review Trustee Sloat’s conduct. After the investigations were concluded, the investigator’s findings were presented to Trustee Sloat and the board of trustees using a PowerPoint presentation. The court was particularly unimpressed with the use of the PowerPoint presentations as they included selective findings from the investigation reports and omitted potentially exculpatory facts. Neither the board of trustees nor Trustee Sloat was provided with the full investigation reports despite the code requiring the reports to be provided to the board of trustees.
The court acknowledged that while the board has the right to determine its own process and to make it efficient, it must still be fair. Trustee Sloat had a legitimate expectation that investigation reports would be provided to her and the board of trustees. The court found that without the benefit of the entire investigation reports, Trustee Sloat could not confirm if the PowerPoints accurately represented the investigator’s findings. Consequently, her ability to respond to the allegations was undermined.
The court further noted that when parties cannot make submissions or ask questions during deliberations, there is a heightened duty to ensure that decision-makers have a balanced picture of the facts. Ultimately, the board’s process was procedurally unfair, and the procedural defects in its decision-making process had a domino effect on its substantive findings.
The court analyzed whether the decisions were reasonable. In the absence of a written decision or a record, the court's analysis would focus on each decision's outcome. The court revisited the hallmarks of reasonableness, including justification, transparency, and intelligibility, and whether a decision is justified in relation to the relevant factual and legal constraints. Ultimately, the board’s decisions were unreasonable because they were unintelligible, lacked justification given the facts, and did not appropriately consider Trustee Sloat’s Charter rights.
The disconnect between the facts underlying the complaints and the board’s decisions was a key reason for the court’s conclusion that the decisions lacked intelligibility and justification. For example, the board found that Trustee Sloat shared information with a parent that undermined the authority of a superintendent. This ignored the fact that the parent specifically asked about the process to follow if she was unhappy with a superintendent’s response.
In another example cited by the court, the board of trustees found that Trustee Sloat made two principals feel uncomfortable when she told them to tell their superiors about a new policy which prohibited trustees from attending school events without an invitation. The board’s decision that this comment violated the code ignored the fact the principals had known Trustee Sloat for years, and one principal shared that they felt the comment was made half in jest.
Moving on to the issue of Trustee Sloat’s Charter rights, she argued that the sanctions engaged her freedom of expression rights under s. 2(b) as she was banned from board meetings and punished for speaking to others. In her appeals to the board of trustees, she asked them to consider her section 2(b) rights by conducting a Doré analysis. The analysis considers whether the administrative decision appropriately balances an individual’s Charter rights with the objectives of the statutory regime. The court found that the board’s failure to conduct this analysis made its decisions unreasonable.
Trustee Sloat also succeeded in her argument that the sanctions imposed by the board were excessive, making them unreasonable. For example, the board banned Trustee Sloat from attending board meetings as a member of the public, and even barred her from attending meetings virtually.
The court found that the cumulative sanctions from the four decisions were punitive and had no rational connection to the conduct, which, in the court’s view, were all minor or technical breaches. This is especially important as the code of conduct required remedial and not punitive sanctions. In support of this finding, the court reviewed other cases where trustees were sanctioned for code breaches and found that the sanctions imposed on the Trustee Sloat were much harsher than in cases involving more egregious conduct.
The court quashed all four decisions because the process was unfair, and the decisions were all unreasonable.
While quashed decisions are usually sent back to the original decision maker for reconsideration, the court declined to do so for several reasons, including the sense that Trustee Sloat was dealt with unfairly and targeted by the board and that ultimately, no useful purpose would be served by remitting the decision back to the board.
This case underscores the necessity for transparency, a balanced presentation of facts, and the proper consideration of an individual's Charter rights in making decisions about trustee code of conduct violations.
The views expressed are those of the writer and do not necessarily represent the views or opinions of the Office of the Ontario Ombudsman.
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