Ontario Superior Court of Justice finds School Board appropriately balanced public member’s Charter right to freedom of expression with its bylaws in its decision to prevent further presentation on topics that it deemed could violate human rights legislation and its policies

Administrative law – Decisions reviewed – School boards – Powers and duties – Judicial review – Procedural requirements and fairness – Bias – Standard of review – Reasonableness – Correctness – Human rights – Charter of Rights and Freedoms

Burjoski v. Waterloo Region District School Board, [2023] O.J. No. 5341, 2023 ONSC 6506, Ontario Superior Court of Justice, November 29, 2023, E.M. Stewart, R.A. Lococo and H.J. Williams JJ.

The applicant, Ms. Carolyn Burjoski (the “Applicant”), sought judicial review of a decision of the Waterloo Region District School Board (the “WRDSB”) to uphold the Chair’s decision to stop Burjoski’s presentation to a Committee of the Whole Meeting (the “Decision”).

The Applicant had registered to speak at the WRDSB’s Committee of the Whole Meeting which members of the public were invited. The Applicant indicated in her request form that she wished to speak on the topic of transparency in the library review process and to offer recommendations in that regard. She also wanted to express her concern about a board policy which stated that teachers must not disclose a student’s transgender status to their parents. Only the Applicant’s request to address the need for transparency in the library review was approved for discussion at the Committee of the Whole Meeting.

At the meeting, the Applicant digressed from the scope of the issue that had been approved and embarked upon an outline of her views about what she perceived to be books that discuss gender identity and a critique of specific books that were available in school libraries. The Chair interrupted the Applicant and cautioned her to make sure she did not say anything that would violate human rights legislation. The Applicant then carried on commenting on the appropriateness for students of specific books about gender identity issues. The Chair again interrupted and directed the conclusion of the Applicant’s presentation because he considered that it could violate human rights legislation and WRDSB policies for delegations, as he noted that gender identity and gender expression are protected grounds under the Human Rights Code. The WRDSB took a vote on the issue and, by majority, voted to sustain the Chair’s decision to end the presentation.

The Applicant asserted the WRDSB’s Decision was unreasonable, a breach of the duty of fairness, in violation of the principles of natural justice, and unreasonably breached her Charter right to freedom of expression.

The court dismissed the application.

The court found the Decision was reasonable.

The court noted WRDSB was afforded a high degree of deference, and school boards should be free to act as modern, democratic, dynamic legal personalities, provided only that there be some statutory foundation, and no express statutory prohibition of, their conduct.

Given the Decision was reached through a democratic process by elected trustees, it was not necessary for them to give detailed reasons for the ruling.

The Applicant sought to present on topics not indicated in her written materials contrary to the bylaws. There was nothing preventing her from expressing her concerns in another forum. The Decision was ultimately about the Applicant’s choice of words, which were, in the opinion of the WRDSB, derogatory and contrary to the bylaws, the objectives of the Education Act, and potentially the Human Rights Code. The Decision achieved a reasonable balance between the Applicant’s Charter right to free expression and the objectives of the bylaws, its Equity and Inclusion Policy, and the Education Act.

The court further found there was no breach of procedural fairness. The court noted that any duty of procedural fairness owed to the Applicant was on the low end of the spectrum. The impact of the Decision on the Applicant was minimal. She was provided more than one opportunity to deliver her presentation on the topic approved in advance but failed to do so. The WRDSB followed its own procedure in coming to a resolution to end the presentation. The procedure to end the presentation was not prescribed, but any reasonable mode not expressly forbidden by law may be adopted, as here. The Chair also provided brief reasons for the Decision.

Finally, the court found that there was no reasonable or actual apprehension of bias in the Decision. The only evidence of bias were statements made by the Chair after the Decision and the Decision was made by a five-member vote. The Chair also specifically passed the chair position to the Vice-Chair to preside over the vote. In these circumstances, the court concluded that a reasonable, informed and right-minded person viewing all the facts would not believe that the WRDSB had a closed mind before making the decision because they were not amenable to persuasion under the objective test for bias.

This case was digested by Renee Gagnon, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Renee Gagnon at rgagnon@harpergrey.com.

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