In Del Grande v. Toronto Catholic District School Board,[1] the Divisional Court (the “Court”) recently dismissed an application for Judicial Review brought by a TCDSB Trustee (the “Applicant”). The Board of Trustee decision under review related to the enforcement of the Trustee Code of Conduct, and the authority of the Board of Trustees (the “Board”) to reconsider its previous decision on whether or not there had been a breach. The Court recognized that, subject to the Education Act and its regulations, Boards of Trustees are the primary determinants of their own process. The Board therefore had the authority to include a reconsideration provision in its by-law, and to apply that provision to a decision regarding a Trustee Code of Conduct breach.
Background
During a Board public debate of a motion to amend the TCDSB Code of Conduct to include gender identity, gender expression, family status and marital status as enumerated grounds, the Applicant made derogatory comments, including that the Board should also add numerous fetishistic behaviours, including pedophilia, gerontophilia, bestiality and vampirism, among others. The Applicant’s comments were ultimately ruled out of order, as his proposed amendments would have contravened the Human Rights Code, the Education Act, the PPM and, in some cases, the Criminal Code.
The Board of Trustees also considered whether in making such comments the Applicant breached the Trustee Code of Conduct. An initial vote did not obtain the requisite two-third majority. However, following a special meeting which included public delegations, the Board voted to reconsider its previous resolution. The subsequent vote found that the Applicant had breached the Code of Conduct, and sanctions were imposed.
The Applicant was unsuccessful in trying to appeal the Board’s decision and the imposition of sanctions. He thereafter brought an application for Judicial Review, challenging the Board’s right to reconsider its original decision that he had not breached the Code of Conduct.
Divisional Court ruling
In determining that reconsideration was permissible, the Court considered the TCDSB by-law, which specifically included a reconsideration provision, and the Education Act which does not prohibit a Board from reconsidering a previous decision. The Court found that the Act permits a Board of Trustees to function as the governing body of a corporation, and are the primary determinants of their own governance procedures.
The Court highlighted that the Board is responsible for enhancing student well-being and maintaining public confidence, which is best served by ensuring good governance and adherence to the Code of Conduct. As the Board had the authority to reconsider the issue, which was reasonably exercised, the reconsideration was not an abuse of process.
The Court also found that the Board had authority to impose sanctions on the Applicant and that the Applicant failed to show that they were manifestly excessive. The Applicant was unsuccessful in arguing that he was denied procedural fairness. The Board complied with the Education Act and its by-law, and the Applicant was given a full opportunity to present his arguments to the Board.
Implications
Boards of Trustees may develop their own processes for making determinations regarding an alleged breach of their Code of Conduct, provided that the process is procedurally fair and does not contravene the Education Act.
If you have any questions regarding your board’s by-laws or any of the issues discussed above, please feel free to reach out to a member of Miller Thomson’s Education Law group.
[1] 2023 ONSC 349.
