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SCHOOLS - Staff - Principals - Natural justice - Procedural fairness  

Friday, April 23, 2021 @ 6:14 AM  


Appeal by the School Board from a decision of a chambers judge quashing the Board’s decision to demote the respondent from principal to teacher. The respondent was also the assistant coach and manager of his daughter’s volleyball team. His demotion was based on a finding that he placed himself in a conflict of interest and used his position as principal to advance his own interests as they related to his daughter playing on the team during a single incident. At a special meeting, the Board passed a resolution to adopt the recommendation contained in the Investigation Report to remove the respondent from his position as principal. The respondent exercised his right to a show cause hearing. A second meeting was held. Copies of letters from students and parents on the incident and the recommendation to demote the respondent were provided to Board members, but not to the respondent. The Board decided to uphold its earlier motion to adopt the recommendation contained in the Investigation Report. The chambers judge concluded the Board owed a high degree of procedural fairness and breached its duty of fairness by failing to provide the respondent with sufficient particulars of the allegations against him during the investigation, to provide him with a thorough and complete opportunity to respond to those allegations during the investigation and to provide reasons for the decision to uphold its first decision to accept the recommendation to demote. The chambers judge held that the Board’s decision to amend the respondent’s employment contract to remove his principal duties was unreasonable. The Board argued the chambers judge misunderstood the limited procedural protections afforded to demoted principals under the Education Act.

HELD: Appeal dismissed. The chambers judge did not err in concluding that the Board had adopted the Saskatchewan School Boards Association investigation manual, thereby triggering a legitimate expectation that it would be followed. The Board’s own administrative procedures and its internal investigation manual suggested that a high standard of procedural fairness would be employed in coming to decisions respecting an employee’s employment contract and during any workplace investigation that might affect that contract. The chambers judge did not err in finding that these two administrative policies bore on the duty of fairness owed by the Board in the investigation and the reasonableness of the demotion itself. The respondent was entitled to have notice of the allegations against him and to provide his response to those allegations to the investigators before they made their report to the Board. His demotion had grave and permanent consequences upon his professional career. This impact was appropriately considered by the chambers judge as attracting the need for significant procedural protections. The Board breached the duty of procedural fairness when it failed to provide reasons for the decision after the show cause hearing. At the show cause hearing, the respondent offered evidence and made lengthy submissions to show that the Investigation Report was factually inaccurate and the decision to demote him should not be made final. Because none of this information was before the investigators, and the Board gave no reasons for its decision to accept the recommendation, the respondent was left to guess why his evidence and submissions were irrelevant to, or not accepted by, the Board when making the show cause decision. The consequences of the breaches of procedural fairness affected the substantive outcome of both Board decisions. It was appropriate for the chambers judge to look to common law employment principles for the purpose of assessing the reasonableness of the Board’s actions when it purported to alter the terms of the respondent’s employment contract for cause-related reasons. Considering there was no pattern of inappropriate behaviour or evidence of a failure to correct inappropriate behaviour, the decision to demote the respondent was substantively unreasonable.

Oberg v. Saskatchewan Board of Education of the South East Cornerstone School Division No. 209, [2021] S.J. No. 77, Saskatchewan Court of Appeal, J.A. Ryan-Froslie, L.M. Schwann and R. Leurer JJ.A., February 22, 2021. Digest No. TLD-April192021012