Nadya Tymochenko, Toronto
On March 6, 2012, the Ontario Liberal
Government introduced legislation amending Ontario's Education Act to add provisions regarding concussions.
Concussions have received increasing
media attention due to significant issues with former hockey and football
players in Canada and the United States.
There has also been research suggesting that concussions sustained by
children can have more significant impacts than those sustained by adults. Certainly, it is known that concussions
sustained by children may have impacts on their brain health later in their
life.
Given this background, it might be
presumed that the amendments to the Education
Act would be beneficial, but as with many legal issues the answer appears
to be “it depends”.
The proposed legislation amends the Education Act to provide the Minister
with powers to establish and require school boards to comply with polices and
guidelines regarding head injuries and concussions.
The policies and guidelines can
address issues such as when a student who is suspected of having sustained a
concussion is to be removed or prevented from further physical activity. Most school boards do not currently have
staff with such expertise, but rather retain such expertise on a limited and as needed
basis for specific inter-scholastic sports.
Significant
liability issues may arise if school board staff members are mandated by
legislation to have the expertise to identify a concussion and respond. Also, school boards might find it difficult
to encourage staff to volunteer, if they must commit to additional training and
responsibilities.
The legislation also allows the Ministry of Education to issue policies and guidelines to address the return of students following a
concussion. It is likely that a doctor’s
certificate will be required before students will be permitted to re-join their
teammates and classmates in physical activities. However, many students cannot afford the
expense of such a certificate. Moreover,
such certificates may be difficult for parents to obtain, if they must take
time off work to do so.
Perhaps more significantly, the
legislation provides that the policies and guidelines may address
the
responsibilities of board employees, classes of board employees, or other
persons who are involved in intramural or inter-school athletics or any part of
the health and physical education curriculum in relation to the prevention of
head injuries, the identification of symptoms of concussions and the management
of concussions.
This provision suggests that
administrators, teachers and perhaps volunteers may be responsible for the prevention, symptom identification and management of concussions. The training required to ensure that such
responsibilities are fulfilled could be significant. Without appropriate training, liability
issues for school boards could be significant, and may be significant even with
appropriate training.
The final provision of interest is
the one that limits the personal liability of school board employees and
volunteers acting in good faith “and in
accordance with the Act, regulations and with any policies and guidelines made
under this section”.
Generally,
employees who have acted negligently in a student matter are protected from personal
liability by the school board’s insurance and as a result of the legal
principle of vicarious liability, even when they fail to follow policies and
guidelines, provided that they have acted in good faith and in the course of their employment and provided that their actions are not wilful or grossly
negligent. Does this provision change
the application of vicarious liability?
Could it impact whether or not insurance providers will cover employees?
We will be following this legislation
and the significant issues it raises that are important to educators, and we
invite you to continue to follow the progress of Bill 39 with us, as we report
on it in our Education Law Blog.
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Gillian Tuck Kutarna, Guelph
The Information and Privacy
Commissioner of Ontario ("Commissioner") recently upheld a Toronto District School Board ("Board")
decision to deny a request made under Ontario's Municipal
Freedom of Information and Protection of Privacy Act ("MFIPPA").
The Board had conducted
investigations into two human rights complaints. The first related to an allegation that a
number of employees at the complainant’s school had violated the Board’s Human
Rights Policy. The second alleged that Board
employees had discriminated against an individual because of her involvement in
the first complaint. The complainant
sought the production of interview notes and other materials arising from the Board’s
internal investigation into these complaints.
In refusing the request for notes
and records relating to the investigations, the Board relied on the
exclusionary provisions of subsection 52(3) of MFIPPA, which state that records
prepared or collected by an institution pursuant to proceedings, negotiations,
or consultations “relating to labour
relations or to the employment of a person by the institution” are exempt
from MFIPPA and therefore do not need to be disclosed.
The complainant argued that the
documents requested related to the role of the Board as “overseer of
the educational environment of the students within the district, not as
employer”. In other words, complaints made pursuant to the Human Rights Policy in general seek
to remedy systemic issues of discrimination, rather than trigger a disciplinary
response against any particular employee named in the complaint, and therefore the
exemption should not apply.
The Commissioner disagreed,
holding that the records being sought arose in connection with the actions of Board
employees and their perceived misconduct. If misconduct had been found, sanctions could potentially have ensued. Further, each employee attended the interview
process with a union representative, with whom the Board had a collective
bargaining relationship. This established
a sufficient nexus to satisfy the requirement that the records were “in
relation to” employment-related matters under MFIPPA.
This interpretation is consistent
with previous decisions of the Commissioner in which subsection 52(3) has been the basis to exempt materials collected in the context of job
competitions, an employee dismissal, a grievance, a disciplinary proceeding,
and a "voluntary exit program". In contrast, an organizational or operational review and civil litigation in
which an institution was alleged to have been liable for the actions of its
employee were not found to be closely connected enough to “employment related
matters” to meet the subsection 52(3) test for an exemption.
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Eric Davis, Kitchener-Waterloo
The Waterloo Region’s exploration of light rail
transit provides an excellent case study and example of some of the challenges
that exist with Ontario's current Municipal
Conflict of Interest Act ("Act").
On June 15, 2011, the Council for the Regional
Municipality of Waterloo voted 9-2 to build an $818-million light rail
transit system, the largest public works project ever undertaken by the Region. When it is finally built in approximately
2017, it will run 19 kilometres between Conestoga Mall in Waterloo and Fairview
Park Mall in Kitchener.
The ultimate decision to construct a light rail
transit system was only arrived at after years of debate. All levels of regional government – both
upper-tier and lower-tier municipalities – voted on the project in some
capacity.
It was during these debates that several regional councillors as well as councillors for the Cities of Kitchener and Waterloo
declared conflicts of interest. In
total, four out of sixteen regional councillors declared conflicts,
five out of ten City of Kitchener councillors declared conflicts and
five out of eight City of Waterloo councillors declared conflicts. In other words, more than 40% of the relevant councillors declared conflicts and were unable to vote on this important issue.
The councillors’ reasons for declaring conflicts
ranged from owning property near the proposed rail line to being an employee of
one of the local universities which might benefit from the creation of a light
rail transit system what would be accessible on or near campus.
The large number of councillors declaring that they
had a conflict of interest highlights a problem with the present legislation:
it is not entirely clear when a councillor or school trustee has a conflict of
interest and there is no independent, third party to proactively adjudicate
whether or not a conflict exists.
Legislative Context
According to the Act, there are two types of
conflicts: (1) a direct pecuniary interest; and, (2) an indirect pecuniary
interest. The term “pecuniary” is not
defined in the Act, though the term generally means “consisting of or
pertaining to money”. As well, the terms
“direct” and “indirect” are not defined.
A direct pecuniary interest arises
where a councillor or school trustee stands to gain or lose a monetary or
financial interest as a result of voting on a particular question.
With respect to an indirect
pecuniary interest, section 2 of the Act states that a councillor or school
trustee has an indirect pecuniary interest if they, or their nominee:
- are a shareholder in, or a director or senior officer
of, a corporation that does not offer its securities to the public that has a
pecuniary interest in a matter;
- have a controlling interest in, or are a director or
senior officer of, a corporation that offers its securities to the public that
has a pecuniary interest in a matter;
- are a member of a body that has a pecuniary interest
in a matter; or,
- are a partner of a person or is in the employment of a
person or body that has a pecuniary interest in the matter.
Therefore, if a councillor or school trustee’s
employer has a pecuniary interest in a matter, that councillor or school
trustee would have an indirect pecuniary interest and should declare a conflict
of interest pursuant to section 2 of the Act.
Section 3 of the Act further expands potential
conflicts. It states that a pecuniary
interest, direct or indirect, of a parent, spouse or child of the councillor or
school trustee shall, if known to the councillor or school trustee, be deemed
to be also the pecuniary interest of that councillor or school trustee.
There
are several exceptions under the Act.
Section 4 states that the Act does not apply to a pecuniary
interest in any matter that a councillor or school trustee may have:
- as a user of
any public utility service supplied by the municipality or a local board;
- by reason of
having an interest in farm lands that are exempted from taxation for certain
expenditures under the Assessment Act;
- by reason of
having a pecuniary interest which is an interest in common with electors
generally; or,
- by reason
only of an interest which is so remote or insignificant in its nature that it
cannot reasonably be regarded as likely to influence the councillor or school
trustee.
[Please note: this is not the entire list of
exceptions under s. 4 of the Act.]
It is not entirely clear, however,
as to when these exceptions would apply, as each situation is very fact
specific.
For example, “interest in common
with electors generally” is defined by the Act to mean “a pecuniary interest in
common with the electors within the area of jurisdiction and, where the matter
under consideration affects only part of the area of jurisdiction, means a
pecuniary interest in common with the electors within that part”. Would light rail transit fall under that
definition? Granted, it will not affect
the entire Region, but as its proposed route is 19 kilometres long, it would
affect a fair portion. Did some of the
councillors who declared conflicts merely have an “interest in common with
electors generally”?
This is often an issue that school
trustees with children attending one of the school board’s schools must
consider when the school board is deciding whether or not to offer programming
or services for some students that, if absent, would otherwise create an
expense for the school trustee.
Case Law
In Re Ennismore (Township), the municipality had
undertaken water and sewer needs studies in a certain area. Subsequently, the Township brought an
application under the Act to determine whether or not a member of council with
a commercial establishment in the study area could participate in the decision
to build a water supply system within that area of the municipality. The fact that the council member had a
commercial establishment in the study area did not make his pecuniary interest
different in kind from the other affected electors. Therefore, the Court ruled that the member
was not prohibited from participating in and voting upon any questions
concerning servicing within the study area.
Whitley v. Schnurr addresses the issue of when a councillor
or school trustee’s interest is so “remote or insignificant in its nature that it
cannot reasonably be regarded as likely to influence the member” In that case, the municipal council was
dealing with an application by a local university for an Official Plan
Amendment (“OPA”). The councillor in question was
one of 5,000 employees of the university.
If approved, the OPA would benefit the university’s heritage trust
fund. Although the councillor conceded
that, as an employee, he had an indirect pecuniary interest in the university’s
application, he was successful in arguing that his vote on the university’s
application for an OPA would not reasonably have been regarded as being
influenced by his status as an employee.
His interest was held to be remote and insignificant.
Penalties
If a judge determines that a
councillor or school trustee has contravened the Act, the judge, according to subsection 10(1) of the Act:
- shall declare the seat vacant; and,
- may disqualify him/her from office for seven years thereafter; and,
- may, where the contravention has resulted in
personal financial gain, require the individual to make restitution to the
party suffering the loss, or, where such party is not readily ascertainable, to
the municipality.
Therefore, if a
councillor or school trustee fails to declare a conflict, beyond the public
humiliation of being found to have contravened the Act, they could lose their
seat and be disqualified from seeking elected office for the next seven years. This penalty is considered
sufficiently significant that many councillors and school trustees would rather
declare a conflict than potentially be challenged for violating the Act.
Conflicts
in Practice
Currently, if a
municipal councillor or school trustee believes he or she might have a conflict in
relation to a particular matter, they must retain a lawyer (usually at their
cost) and seek a legal opinion as to whether or not they have a conflict. The
municipality and school board will not provide a legal opinion to individual
councillors or school trusteesbecause they represent the council or school
board as a whole.
Unless there is an
obvious conflict of interest (or lack thereof), any legal opinion received by a
councillor or school trustee is likely to contain caveats and equivocations, as
nothing is ever certain. The risk of not
declaring a conflict and being found to have violated the Act is so great that
it will always be easier to declare a conflict.
Moreover, if a councillor or school trustee does not declare a conflict
of interest and is challenged, even if they are ultimately found to have not
violated the Act, they will still likely have legal costs and the humiliation
of being accused of a conflict of interest.
Without an ability
to proactively determine whether or not one has a conflict, very few
councillors or school trustees would ever be willing to take the risk. The result is that councillors and school
trustees fail to participate in significant decisions being made by their
councils and school boards.
Potential
Solution
Several municipal
councils in Ontario have called upon the provincial government to create a
municipal conflict of interest commissioner who would consider potential
conflicts and render a binding and final decision on them.
Unlike federal or Ontario politicians, municipal
councillors and school trustees do not have an officer they can approach to
rule on potential conflict cases. They only know for sure if they have a
conflict when someone challenges them in Court.
As discussed above, that forces councillors and school trustees to
declare conflicts even in cases where any actual conflict is questionable. If there was a commissioner who could decide these matters in advance, then once the commissioner made a determination, there would be no question as to whether or not a councillor or
school trustee had a conflict and no need for anyone to challenge the councillor
or school trustee in Court. It would
provide a degree of certainty for municipal councillors and school trustees,
which is presently absent. Such a
process would also, hopefully, allow more councillors and school trustees to participate in debates and decisions.
Conclusion
In many situations, it is not entirely clear whether or not a councillor or school trustee has a conflict of interest, as each situation is
very fact specific. The only way to
pro-actively address that situation is to create a municipal conflict of
interest commissioner, as discussed above.
Otherwise, councillors and school trustees will typically choose to
declare a conflict, for fear of being challenged if they do not, even if their
potential conflict is questionable.
Where possible, councillors and school trustees should be permitted to
debate the issues and represent their constituents, not sit on the sidelines.
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