A decision of the Minister of Education removing the authority from a School Board members for unprofessional conduct was highly discretionary and fact-based. Such a decision was to be reviewed on a standard of reasonableness. As long as it fell within the possible range of reasonable outcomes, the decision should not be overturned on judicial review.

26. August 2008 0

Administrative law – Decisions of administrative tribunals – Ministerial orders – School boards – Powers and duties – Code of ethics – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter – Human rights – Charter of Rights and Freedoms

Nova Scotia v. Nova Scotia (Minister of Education), [2008] N.S.J. No. 285, 2008 NSCA 62, Nova Scotia Court of Appeal, July 3, 2008, M. MacDonald C.J.N.S., J.W.S. Saunders J.A., J.E. Fichaud J.A.

As a result of highly publicized open hostility between certain members of the Halifax Regional School Board, the Minister of Education prepared a directive for the Board setting out the standard of professional conduct for the members and requiring them to reaffirm their Code of Ethics. The Minister also made clear to the members that their authority would be removed if they failed to comply.

A few months after the directive was adopted, a fellow Board member made inappropriate comments about the Board and another member issued two motions to investigate other members’ conduct for possible impropriety. The tension culminated into a serious verbal altercation between the members in the Board lounge.

The Minister responded by stripping all members of the Board of their authority and assigning a new one-person replacement Board.

Seven members of the Board applied to have the Minister’s decision quashed. The Supreme Court of Nova Scotia dismissed their application. The members appealed this decision to the Nova Scotia Court of Appeal. That appeal was dismissed.

The first issue before the Court of Appeal was whether the Minister failed to afford the Board members the required level of procedural fairness by not holding a hearing before their removal.

The Minister made an administrative decision that significantly affected the members’ interests. Therefore, she owed them a duty to proceed fairly. However, the Minister’s decision was more administrative than judicial, highly fact driven and discretionary. Although the decision affected the lives of the Board members, they had ample notice that further misconduct would cause the Minister to exercise the removal power. Accordingly, the Board had no legitimate expectation that any other procedure would be involved.

In the circumstances, the Minister acted fairly and was not required to afford the Board members a hearing before removing their authority.

The members’ submission that innocent Board members should not have been punished was rejected. The true purpose of the Minister’s decision was to preserve public confidence in the Board, not punish members.

The second issue before the Court of Appeal was whether the Minister’s decision should be overturned.

While there was no privative clause insulating the Minister’s decision, the Minister’s purpose was to balance the interests of a number of groups, and she brought a level of expertise to the issue. Further, her decision was fact-based and highly discretionary. These factors suggested that the Minister’s decision should be reviewed on a standard of reasonableness, as opposed to correctness.

By express statutory language the Board was accountable to the Minister. The Minister was required to establish performance standards with which the Board had to comply. The Board failed to comply with these standards, despite having been given a fair warning. The Court of Appeal expressly rejected the members’ argument that the standards applied only while the members were carrying out their statutory duties, i.e., during Board meetings.

The Minister’s decision was not unreasonable in the circumstances, but fell well within a range of reasonable outcomes.

The Charter had no application because the Code of Ethics was not ambiguous and required compliance by members “at all times”. Therefore, the Code could not be interpreted, in light of the freedom of speech rights enshrined in the Charter, to permit members to make various comments without fear of sanction outside the context of Board meetings.

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