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OHRC submission to Ministry of Education consultation on strengthening accountability for school board trustees

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November 1, 2021

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The Honourable Stephen Lecce
Minster of Education

Dear Minister Lecce:

Re: Ministry of Education consultation on strengthening accountability for school board trustees

The Ontario Human Rights Commission (OHRC) welcomes the Ministry of Education’s on strengthening accountability for school board trustees. We are particularly interested in measures to ensure trustees are held accountable if they fail to fulfill their legal obligations under the Ontario Human Rights Code (Code).

The OHRC is concerned about reports of trustees engaging in discriminatory conduct including making homophobic, Islamophobic and racist comments. It is particularly troubling when such behaviour is exhibited by education leaders entrusted with the responsibility to ensure school systems uphold and champion human rights. The Supreme Court of Canada has recognized that school boards must foster an atmosphere of tolerance and respect and cannot rely on the personal views of some individuals to deny equal recognition for the human rights of other members of the school community.


Requiring that trustee conduct upholds and respects human rights

Trustees must be accountable to the school community, the government and the general public. Trustee codes of conduct, when drafted and used effectively, can help prevent discriminatory conduct and promote human rights accountability. The OHRC supports the Ministry of Education’s intention to identify and require, through statutory regulation, minimum standards for trustee codes of conduct, including ensuring human rights are consistently upheld across all publicly funded school boards. 

The minimum standards for codes of conduct should require school board trustees to respect, protect and promote human rights at the board and throughout the education system they govern. They should state that school boards and their trustees have a legal duty under the Code to maintain an inclusive environment, free from discrimination and harassment for trustees, student trustees, board staff, students, parents and guardians and members of the public. Boards and their trustees must take steps to prevent and respond appropriately to violations of the Code or they may be held “liable” and face monetary penalties or other orders from a tribunal or court.

To support these minimum standards and Code obligations, all board members should be required to successfully complete Ministry-approved education and training on human rights. Required training should include anti-racism, as well as content on Indigenous (First Nations, Métis and Inuit) cultural sensitivity and cultural safety that is developed and delivered by the Indigenous communities served by their board.


Strengthening the integrity of complaint and investigation processes

Currently, under the Education Act, only a trustee may bring an alleged breach of a trustee code of conduct to the attention of the board. Under the Code, anyone can bring forward an allegation of discrimination. The OHRC strongly recommends that boards be required to establish a complaint process that ensures all allegations of discrimination by a trustee, including complaints made by student trustees, board staff, students, parents and guardians and other members of the public, are brought to the board’s attention. The process should make clear that, in accordance with the Code no person shall be negatively treated for raising a complaint, providing information related to a complaint or helping to resolve a complaint. Moreover, information about the availability of a complaint process should be easily accessible and widely publicized.

School boards have a duty to take complaints alleging a breach of the Code seriously and to act upon them promptly. Human rights jurisprudence has established that a duty holder’s failure to investigate and address allegations of discrimination and harassment in a timely and effective manner can cause and/or exacerbate the harm of discrimination.

In certain circumstances, the board may need to hire an independent third party to investigate and provide recommendations for the board’s consideration.


Adequate measures and sanctions available in the event of breach

School boards have a Code duty to take action when a trustee is found to have engaged in discrimination. Since the goal of human rights legislation is preventative and remedial rather than punitive, steps must be taken to both remedy the effects of the discrimination and prevent future occurrences.

The Education Act sets out potential sanctions for a trustee’s breach of the code of conduct, including censure and barring a trustee’s participation in board meetings and committees (s.218.3(3). The OHRC submits that, in certain circumstances, other measures may be necessary and appropriate to meet the remedial and preventative goals of human rights law. For example, mandating participation in additional human rights training could serve to prevent further Code breaches. Stronger sanctions, such as removal from office where the law permits, may be necessary in the case of a very serious breach. The OHRC recommends that school boards have all of the authority necessary to remedy human rights violations.

The Education Act requires school boards to vote publicly on determinations of code of conduct breaches and the imposition of sanctions. The OHRC recommends that boards be required to publicly report aggregate data on all complaints and their outcomes, on an annual basis.

The OHRC calls on the Ontario government to undertake any legislative, regulatory and/or policy changes necessary to implement these recommendations.

Patricia DeGuire
Chief Commissioner

cc:       Patrick Case, Assistant Deputy Minister, Education Equity Secretariat, Ministry of Education
           OHRC Commissioners