Fall 2007 education law column

Q:        Has the Supreme Court of Canada considered any issues recently that may affect boards of education in BC?

A:        There are two recent decisions that boards of education may find interesting to review and consider. The first ruling discusses when and whether in camera meetings (meetings which are closed to the public) should be held in the context of a municipal council meeting. The second Court ruling was in relation to Alberta legislation which disqualifies any public school or private school teacher employed by a school board in the Province from holding office as a Trustee in the Province. This issue of the Leader will consider the closed meeting decision. The next issue will review the trustee disqualification decision.

In Ontario there is legislation which specifies that all municipal meeting shall be open to the public with the exception of certain specified subjects which are expressly outlined in the Ontario Municipal Act. This legislation was developed in response to what was perceived by different Ontario commissions as a “problem” with the over-use of closed meetings by municipal councils.

In response to this situation, and as noted in one report: “In the hope of…fostering democratic values, and responding to the public’s demand for more accountable municipal government, these reports recommend compulsory open meetings of municipal councils and committees, subject to narrow exceptions.” In following these recommendations and enacting clearly defined open meeting requirements the Ontario government signalled that its intent was to “increase public confidence in the integrity of local government, by ensuring the open and transparent exercise of municipal power.”

In BC, there is also a requirement in the School Act for boards of education to hold open meetings, except where it would not be in the public interest to do so. Exceptions are not specified by the legislation and instead this decision is left to boards of education to determine, generally as a matter of policy. Typically such things as personnel matters, legal issues, collective agreement negotiations, etc. are the kinds of issues considered by boards of education in closed meetings from which the public is excluded.

In the Ontario case, a municipal council considered a proposed bylaw at a closed meeting which concerned a controversial development freeze in a particular area of the city. Immediately after considering the proposed bylaw, the council moved into public session and during an eight minute period introduced, gave three readings, and passed the bylaw, together with 31 other bylaws, without public debate or discussion.

The bylaw was challenged for violating the open meeting statutory requirements and ultimately the case was heard by the Supreme Court of Canada. At the end of June this year, the Court struck down the bylaw on the basis that the process used by the council violated the open meetings provisions of the Ontario municipal legislation.

In criticizing the conduct of the municipal council in excluding the public from its initial deliberations, the Court noted that the “City’s conduct in closing the…meetings in question was neither inadvertent nor trivial.” In fact, according to the Court, the “council meeting…was conducted in a manner that is rather reminiscent of the problems reported more than 20 years ago that led to the passing of the statutory open meeting requirement.” The Court noted that an eight minute public meeting in which 32 bylaws were considered and passed without debate or discussion was hardly consistent with the letter or spirit of the open meeting legislation.  

Although this case concerns a municipal council, it suggests an important lesson for boards of education regarding the importance of ensuring members of the public are only excluded from board meetings in appropriate circumstances. For more details on the case you can access the Supreme Court’s decision in the Corporation of London v. RJS Holdings Inc. at http://www.scc-csc.gc.ca/ . Just follow the links to “Cases.”