HomeMy WebLinkAbout7.1 Opinion re Trustee Code of Conduct Complaint
Meghan A. Cowan
Direct: 416.865.4722
E-mail: mcowan@airdberlis.com
PRIVILEGED AND CONFIDENTIAL
June 27, 2023
Our File No.: 309545
Board Chair Evans and Members of the Board of Trustees
Ottawa-Carleton District School Board
133 Greenbank Road
Ottawa, ON
K2H 6L3
Dear Board Members:
Re: Opinion re Code of Conduct Complaint Report Findings in the Matter of Code
of Conduct Complaint by Trustee Dickson against Trustee Kaplan-Myrth
We have been requested to provide a legal opinion to the Ottawa-Carleton District School Board
(the “Board”) with respect to the Formal Review Report – Findings dated May 29, 2023 and
prepared by Michael L. Maynard of ADR Chambers Inc. relating to the complaint filed by Zone 8
Trustee Donna Dickson against Zone 9 Trustee Nili Kaplan-Myrth (the “Findings Report”). In
particular, we have been asked to provide an opinion on whether or not the determinations in the
Findings Report disclose a contravention of the Board Member Code of Conduct, Policy
P.073.GOV (the “Code of Conduct”) and, if so, to recommend a proportional range of sanctions.
Qualifications and Expertise
Aird & Berlis LLP has been appointed as Integrity Commissioner for some 75 public sector entities,
primarily municipalities, throughout all of Ontario. In this role, we act as an impartial, expert and
independent officer to carry out the statutory functions set out in the Municipal Act, 2001 including
the application and enforcement of municipal codes of conduct in relation to members of councils
and local boards.
We currently serve as the Interim Integrity Commissioner of the Toronto Catholic District School
Board where we have dealt with a number of complaints and have provide advice to members as
to their obligations under the Trustee Code of Conduct and other related policies. We were the
first Integrity Commissioner appointed for the York Region District School Board and we have also
acted as Integrity Commissioner for other school boards with respect to investigation and
enforcement matters. We have also assisted a number of school boards with respect to their ethical
policies and codes of conduct and are generally familiar with the Education Act.
We have conducted numerous investigations as Integrity Commissioner and as a workplace
investigator and submit that we are knowledgeable and well-versed in the obligations of procedural
fairness required when discharging investigations into code of conduct complaints and in
reviewing, assessing and providing recommendations on penalties and sanctions in the context
ethical, ethics and accountability matters.
June 27, 2023 Privileged & Confidential
Page 2
Materials Reviewed
In preparing this opinion, we have reviewed the following materials:
• the Complaint (as defined below);
• the Findings Report;
• the Code of Conduct;
• the text messages exchanged between Trustee Dickson and Trustee Kaplan-Myrth; and
• the letter dated February 19, 2023 written by Trustee Kaplan-Myrth to Trustee Dickson and
circulated to all members of the Board.
Code of Conduct – Specific Directives
The following sections of the Code of Conduct are relevant to this opinion as they relate to Steps
of Formal Review and Sanctions:
4.26 The Final Report of the investigators shall outline the findings of facts, but
not contain a recommendation or opinion as to whether the Code of
Conduct has been breached. This will be determined by the Board of
Trustees as a whole.
…
4.36 If the Board determines that there has been no breach of the Code of
Conduct or that a contravention occurred, although the trustee took all
reasonable measures to prevent it, or that a contravention occurred that
was trivial, or committed through inadvertence, or an error of judgment
made in good faith, no sanction shall be imposed.
4.37 If the Board determines that a Board member has breached the Code of
Conduct, the Board may impose one or more of the following sanctions:
a) censure of the Board member;
b) barring the Board member from attending all or part of a meeting of
the Board or a meeting of a committee of the Board; or
c) barring the Board member from sitting on one or more committees of
the Board, for the period of time specified by the Board, not to exceed
six months.
4.38 The Board shall not impose a sanction that is more onerous than the
above but may impose one that is less onerous such as a warning. The
Board has no power to declare the trustee’s seat vacant.
June 27, 2023 Privileged & Confidential
Page 3
Issue
We have been asked to provide a legal opinion as to whether the Findings Report discloses a
contravention of the Code of Conduct and, if so, to recommend a reasonable and proportional
range of sanctions.
For the reasons that follow, it is our opinion that the conduct in question constitutes a breach of
Sections 3.17 and 3.18 of the Code of Conduct. However, it is also our opinion that the
contravention does not merit a sanction in view of Section 4.36 of the Code of Conduct, which
provides, in part, that no sanction shall be imposed in relation to an error of judgment made in good
faith.
Analysis
(a) Investigation
ADR Chambers Inc. (the “Investigator”) was requested by the Board to conduct a formal review
of a complaint made under the Code of Conduct in or around February 13, 2023 (the “Complaint”).
The Complaint was made by Trustee Dickson (the “Complainant”) regarding the conduct of
Trustee Kaplan-Myrth (the “Respondent”) with respect to various communications made by
Trustee Kaplan-Myrth in and around late November 2022 regarding her proposed motion before
the Board to implement a temporary masking mandate. The Complaint alleged that the
Respondent’s conduct contravened Sections 3.17 and 3.18 of the Code of Conduct in the following
way:
a) by insinuating that a vote against the Respondent’s proposed mask mandate was a vote in
support of “white supremacists”; and
b) by making comments about other Board members who were voting against the mask
mandate.
We understand that a confidential memorandum was presented to the Board on February 23, 2023
which advised that Sections 3.15, 3.17 and 3.19 of the Code of Conduct were alleged to have been
breached by the Respondent’s conduct and that efforts were underway to retain the services of the
Investigator.
The relevant sections of the Code of Conduct are set out below:
3.15 Board members shall not engage in conduct that would discredit or
compromise the integrity of the Board during the meetings of the Board
or at any other time.
…
3.17 When expressing individual views, Board members shall respect the
differing points of view of other Board members, staff, students and the
public.
3.18 Board members shall, at all times, act with decorum and shall be
respectful of other Board members, staff, students and the public.
June 27, 2023 Privileged & Confidential
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3.19 All Board members shall endeavour to work with other Board members
and staff of the Board in a spirit of respect, openness, courtesy and
cooperation.
In undertaking its investigation and preparing the Findings Report, the Investigator was retained
by virtue of Sections 4.22 and 4.23 of the Code of Conduct. In accordance with Section 4.26 of
the Code of Conduct, the Investigator’s Findings Report is limited to findings of fact. Accordingly,
the Findings Report does not offer any conclusions or recommendations on its findings.
By the express wording of Section 4.26, whether there has been a breach of the Code of Conduct
“will be determined by the Board of Trustees as a whole.”
(b) Report Findings
The Findings Report provides a detailed overview of the parties and the background in which the
comments which gave rise to the Complaint were made. We will not reproduce this, but note that
the relevant sections are contained at page 7 of the Findings Report.
Likewise, the Findings Report provides a detailed overview of the evidentiary record reviewed by
the Investigator. The evidence consisted primarily of text messages exchanged between the
Complainant and Respondent, and is set out at pages 8-13 of the Findings Report.
Finally, the Findings Report provides a detailed summary of the Investigator’s interviews with the
Complainant, the Respondent and two witnesses, and sets out the legal arguments presented by
the Respondent’s legal counsel. Notably, the Investigator concluded:
“I found both Parties credible. Both were forthright in expressing their views and
presented reasonable explanations for their actions and interpretations.
The Complainant appears genuinely upset by the words communicated by the
Respondent…The Respondent acknowledged her words, and referred to her
February 19th letter in which she made certain admissions, provided explanations,
and apologized and expressed regret for her actions. It appears that she was not
fully aware of the extent of the offence her words caused until she was presented
with the written Complaint on February 17th.”
The Findings Report concludes by setting out the following factual findings:
1. The Respondent sent a series of text messages to the Complainant soliciting
her support for a temporary mask mandate at the Board;
2. The Complainant indicated some support for the policy as of November 12,
2022, but later changed her mind;
3. The Respondent then engaged in attempts to persuade the Complainant to
return to her previous supportive position;
4. While doing so, the Respondent made several comments about the political
and moral convictions of several of their colleagues; and,
June 27, 2023 Privileged & Confidential
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5. The Respondent eventually asked the Complainant to “abstain” rather than
“vote with White supremacists,” to which the Complainant took offence, for
reasons elaborated herein.
With respect to Item Number 4 above, and comments made by the Respondent to the Complainant
concerning other Trustees, the Findings Report provides as follows:
“The specific words the Respondent used are established by the evidence, and
the parties have clear differences in how they interpret their intent and affect. I
note that the Respondent has since attempted to clarify her intent and apologized
for making these comments.”
With respect to Item Number 5 set out above, and the Respondent’s comment to “abstain” rather
than “vote with White supremacists,” the Findings Report notes as follows:
“These words that the Respondent used are not debatable - they are a matter of
evidence. However, I find it unlikely that this interpretation [i.e. the Complainant’s
interpretation of the comment to be a racist remark] reflects the Respondent’s
intent, and she more likely made the remark to suggest that certain White
supremacists would (in her view) welcome the result of a defeated mask mandate
resolution. This notion was clearly communicated poorly, and the Respondent
has since attempted to clarify her intent and expressed regret for making this
remark and for the harm it caused the Complainant.”
Finally, in closing, the Findings Report also notes that the Complainant demanded a public apology
to herself and the other Trustees named in the text messages to resolve the Complaint. While not
a factual finding, the Investigator writes:
“As an independent third party, I found the remorseful words in the Respondent’s
letter, published to all Trustees, to be sincere. My own opinion is it was an earnest
attempt by the Respondent to explain where she thought she went wrong,
coupled with words of apology and conciliatory messages respecting ongoing
and future relationships…”.
(c) Contravention of the Code of Conduct
For the reasons set out above, it is our opinion that the Respondent’s comments concerning other
Board members and comments to the Complainant contravened Sections 3.17 and 3.18 of the
Code of Conduct which requires that Board members “…shall respect the differing points of view
of other Board members” and shall be “respectful of other Board members.” The comments
contained in the text messages sent by the Respondent, while attempting to be persuasive
advocacy, were written in such a way that, on their face, do not appear to be respectful of her fellow
Board members.
We do not find that the Respondent’s conduct rose to a level that would discredit or compromise
the integrity of the Board as set out in Section 3.15 of the Code of Conduct. Likewise, we do not
find that the comments breached Section 3.19 of the Code of Conduct, when they are viewed and
considered in their entire context.
June 27, 2023 Privileged & Confidential
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(d) Recommendations
Section 4.37 of the Code of Conduct sets out the sanctions the Board may impose on a member
where the Board determines that a breach of the Code of Conduct has occurred. They consist of
the following: (a) censure of the Board member; (b) barring the Board member from attending all
or part of a meeting of the Board or of a committee of the Board; or (c) barring the Board member
from sitting on one or more committees of the Board, for a period of time not to exceed more than
six (6) months. Section 4.37 expressly provides that the Board may impose “one or more” of the
aforementioned sanctions.
Section 4.38 of the Code of Conduct provides that the Board shall not impose a sanction that is
more onerous than the three specifically sanctions listed in Section 4.37, but that the Board may
impose a lesser sanction, such as a warning.
Having carefully reviewed the Findings Report and the Respondent’s letter to the Complainant
dated February 19, 2023, it is our opinion that the conduct in question constitutes a breach of the
Code of Conduct. However, it is also our opinion that the contravention does not merit a sanction
in view of Section 4.36 of the Code of Conduct, which provides, in part, that no sanction shall be
imposed in relation to an error of judgment made in good faith.
The reasons for our determination are as follows:
1. The Respondent made sincere efforts to apologize and explain her actions after the
Complainant’s concerns were fully brought to her attention as of February 17, 2023 by
virtue of her detailed and lengthy letter to the Complainant of February 19, 2023. In her
correspondence, the Respondent sincerely apologized for her conduct and explained her
intent in making the comments. We note the following:
a. The Respondent’s apology and expressions of regret were not coerced and she
acknowledged she could have handled the situation differently.
b. The Respondent’s letter dated February 19, 2023 provided a detailed explanation for
her conduct in championing the mask mandate motion, given her training and
qualification as a doctor and the impact of COVID-19 she had witnessed on
vulnerable members of the population.
c. The Investigator found that the Respondent’s remark concerning “White
supremacists” was more likely made to suggest that certain persons would welcome
the result of a defeated mask mandate resolution. While noting that the Respondent’s
comments were poorly communicated, the Respondent has since attempted to clarify
her intent and has expressed regret for making this remark and for the harm it caused
the Complainant.
2. The Complaint sought a public apology from the Respondent, despite the fact that the
comments at issue in the Complaint were never publicly made or distributed, given the
private nature of the text messages between the two Trustees. As the Investigator writes
in the Findings Report:
June 27, 2023 Privileged & Confidential
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“It is plainly unfortunate that this matter came to this point. It seems there
could have been ample opportunity to attempt an earlier informal resolution,
but circumstances of miscommunication and misunderstanding conspired
against that.”
In light of these factors, it is our opinion that the conduct in question, while in contravention of the
Code of Conduct, does not merit the imposition of a sanction. The Respondent’s comments were
not made in bad faith, and were issued in an error of judgment. The Respondent’s letter of February
19, 2023 clearly sets out her regret for her actions and attempts to foster conciliatory relations with
the Complainant as well as with her fellow Board members.
Should the Board be of the view that a sanction is merited, we would recommend a penalty at the
lower end of the spectrum to be imposed as a preventive measure, such as a warning or caution
to the Respondent to pause and exercise some restraint before advocating for a position or arguing
a point when sending a text or electronical communication where emphasis, tone and context may
not be transmitted as intended.
Conclusions
For the reasons set out above, it is our opinion that the Respondent’s text communications
contravened Sections 3.17 and 3.18 of the Code of Conduct. However, the Respondent made
sincere efforts to apologize and explain her actions after the Complainant’s concerns were fully
brought to her attention as of February 17, 2023. As the Respondent’s correspondence of February
19, 2023 sets out, her communications were made in a good faith attempt to persuade a fellow
Board member to consider supporting her mask mandate motion, given her experience as a doctor
and her observations of the impact on COVID-19 on vulnerable segments of the population. We
also note that the Respondent’s communications were also sent early in her term, shortly after
being elected to office.
In light of these factors, it is our opinion that the conduct in question does not merit sanction by
virtue of the express language of Section 4.36 which specifically provides that no sanction shall be
imposed where a Board member committed an error of judgment made in good faith.
We would be pleased to answer any questions arising from the foregoing opinion.
Yours truly,
AIRD & BERLIS LLP
Meghan A. Cowan
MAC/JM
53463131.2