Most public interest boards of directors have a Code of Conduct designed to facilitate the effectiveness of the board, protect staff from inappropriate conduct, and preserve the reputation of the organization. One such Code of Conduct was tested at the Ottawa Carlton District School Board in Kaplan-Myrth v. Ottawa Carlton District School Board, 2024 ONSC 4280 (CanLII).
A complaint was made that an elected Trustee “was rude, insulting, intimidating and disrespectful” to the board, other board members, and staff members. In public statements including her personal social media account, she called the board a “kangaroo court”, said that other Trustees had “been out to get me from day one”, called a fellow Trustee an “idiot”, failed to follow meeting protocols, and alleged bad faith by staff, among other things. After an investigation by the organization’s Integrity Commissioner, the board found that she had breached several provisions of the Code of Conduct. The board suspended the Trustee for the next regular board meeting and from attending committee meetings for three months.
The Court upheld the finding and order. While the outcome infringed the Trustee’s right to freedom of expression, the reasons given for doing so reflected a proportionate balancing of the various interests.
The Court also rejected the Trustee’s argument that her “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.” Citing another case, the Court said:
… 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.”
What was objectionable was not so much the strongly held views of the Trustee, but the manner in which she expressed those views.
The Court also found that there was no procedural unfairness in the process the board followed. Even though the applicable provisions did not permit the Trustee to make oral presentations before the board rendered their final decision, she had ample opportunity to present her position throughout the process.
It really is all in how you say it.