The author spoke at last night’s community meeting in Markdale about education in rural Ontario. She shares here the full text of the prepared comments she did not have sufficient time to deliver.
My name is Elizabeth Marshall and I am not a lawyer and do not give legal advice but I am a Legal Researcher for Green and Associates Law Offices and have had my research used by other law firms. I have published many reports and articles respecting various pieces of Legislation, having had these articles printed in the Landowner Magazine and the Toronto Sun. I am the Director of Research for Ontario Landowners Association and do legislative research for MPs, MPPs, and Municipal Officials. I am an author with a book in its second edition. In May of 2012 I was elected to the Board of Directors of the Canadian Justice Review Board and, in 2014, I was appointed to the Steering Committee of the International Property Rights Association.
My interest involving the school closures is mainly in the requirements of the School Board Trustees and their obligations to those who have elected them.
In a short 44 page document I have come to the conclusion that government may be misleading these Trustees into executing functions which could be considered a breach of the trust granted to Trustees, by the electorate. This has directed me to ask 7 questions and to seek out the answers to these questions. I will be speaking to 6 of the 7 questions due to time restraints.
Question 1. Have the School Board Trustees read: the Education Act, the Assessment Act, the Development Charges Act, the Municipal Act, and the Planning Act ? If not, is this a violation of their duties as a Trustee?
In the government document "Making a Difference for Kids Running for Election as a School Board Trustee Guide for Candidates," dated October 27, 2014, it states:
"Willingness to learn
A newly-elected school trustee has a fairly steep learning curve, and must be willing to spend time becoming familiar with existing board policies and relevant legislation."
Therefore, it would seem that the Trustees, if they have not read the aforementioned Acts, etc., they have not fulfilled their fiduciary duties nor do they understand what a Trustee is to know and understand as required.
Question 2. Do the Trustees know and understand what a "trustee" is and what their obligations are? Do the Trustees know and understand what "fiduciary duty" is?
One must first define the term "fiduciary duty" to understand what a School Board Trustee is. From Black's Law Dictionary -
A FIDUCIARY DUTY is a duty of utmost good faith, trust, confidence, and candor owed by a fiduciary (trustee) ... to the beneficiary ...; a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person.
In 2002 it was stated in the Superior Court of Ontario:
"[107] A fiduciary is one who stands in a position of trust to another individual. ... Where one party has placed trust and confidence in another and the other has accepted expressly or by operation of law, a fiduciary is established. The party bound by the relationship, the fiduciary, is called the trustee and the party reposing the trust and confidence is called the beneficiary. ...:
This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the fiduciary breaches this fiduciary duty it will be liable . . . in the same way and to the same extent as if such a trust were in effect."
And from Black's Law Dictionary a TRUSTEE – Is one who stands in a fiduciary or confidential relation to another; esp., one who, ... owes a fiduciary duty to that beneficiary.
It has been found that the Guides, for the Trustees, have not fully explained what a "trustee" is, or what the Trustees' true "fiduciary duties" are.
In "Ontario Education Services Corporation - Professional Development Program for School Board Trustees Modules: 1 Effective Governance through Ethical Leadership" the statements regarding fiduciary duty of the Trustees are in conflict with the purpose of the Act, as it states:
"1 ...: The Board's Fiduciary Role
The elected board of trustees has the responsibility to competently protect the interests, image and credibility of the school board, to ensure its financial viability, ...."
This guide is stating that the first fiduciary duty it to protect the interests, image and credibility of the School Board when in the Act the primary fiduciary duty is to the students, as it is the students and the tax-payers, who are the beneficiaries.
The purpose of the Act states:
PURPOSE
Strong public education system
0.1 Partners in education sector
(3) All partners in the education sector, including the Minister, the Ministry and the boards, have a role to play in enhancing student achievement and well-being, closing gaps in student achievement and maintaining confidence in the province's publicly funded education systems. 2009, c. 25, s. 1.
The province, cannot create a law that creates a violation of the law. The fiduciary duty of the Trustees are to the residents and students and is to protect the students' and tax-payers' well-being, in a reasonably fiscal capacity.
Question 3. When a School Board decides to move students and/or close schools are they in violation of their fiduciary duty? And are they libel to action if they are violating their fiduciary duties?
As quoted above – from the Superior Court of Ontario.
"[107] ... If, however, the fiduciary breaches this fiduciary duty it will be liable . . . in the same way and to the same extent as if such a trust were in effect."
Therefore, it would seem, if a School Board does not fulfill it's fiduciary duty to the students and residents it can, like any trustee, be held accountable in the courts.
Question 4. Are the School Boards actually looking to close the schools or is there confusion as to what entity is to make the decision? Is it the decision of the Accommodation Review Committees (ARCs) or the Ministry?
On the Accommodation Review Committee and the Pupil Accommodation Review Guidelines web-site, it states that "The Ministry of Education cannot overrule or change these decisions."
According to "Ministry of Education – Pupil Accommodation Review Guideline, March 2015" it is the School Boards who are to make the final decision as to whether a school is closed and/or students relocated. This is in Part IV (4) "School Board Accommodation Review Policies."
In regards to the ARCs, there seems to be confusion as to what their duties and powers are. It states in part VII (7) the Role of the ACRs. The ARC is merely a "conduit for the transfer of information" between staff, the community and the Board and it is not the decision maker for relocation of students and/or school closures.
Therefore the final decision is that of the Trustees – not the ARCs or the Ministry.
The Staff's role is expressed in part XI (11) of the Guidelines, and it states that once the accommodation review process is finished the staff will submit a final report to the Board; make this report available to the public and that the staff may amend their initial report.
It is curious that the staff is allowed to amend their initial staff report, because the entire review process has been initiated on the initial staff reports. This is found in section VI (6) of the Guideline.
If the initial staff reports have errors or failed recommendations shouldn't those errors be made known to the Trustees? Considering the School Board Trustees are making their decisions based on information relayed to them through the ARCs and the staff, should all of the information be (i) supported, and (ii) not amended? Also shouldn't the Trustees have a number of open meetings to obtain their own feed-back from the residents? As stated in Guidelines the staff will provide the Trustees with a final report. The Trustees have the discretion to approve the recommendation(s) of the final staff report as presented, modify the recommendation(s) of the final staff report, or to approve a different outcome.
There is nothing in this guide which states that the School Board Trustees must close schools or relocate students. If the Trustees are fulfilling their fiduciary duties, they must take the statements of the residents and the students as the first line and not subscribe to amended statements of staff or the ARCs.
Question 5. If, under sections 8 and/or 66 of the Education Act, the Ministry cannot close a school that has more than 8 to 10 students, how does a School Board, determine that it has more authority than the province, considering it is a creature of legislation?
Like Municipalities, the Province cannot grant the School Boards more power than it has itself, therefore the School Boards are restricted by the legislation and the School Boards fiduciary duties to the students and residents/tax-payers. In 2010 it was stated in the Ontario Superior Court:
"[51] It is settled law that the Municipality is a creature of statute; it has no greater powers than those conferred upon it by the province which created it."
Therefore a School Board cannot have more authority than the province or a Ministry of the province.
Question 6. If a parent must ensure that a child between the ages of 6 – 18 must attend school and the School Boards are closing the schools, is this not placing those parents in violation of the Education Act?
Sections 21 / and 30 (1) / of the Act bring in compulsory attendance and charges, including fines, if the parent or guardian does not ensure that the child attends school as required in the Act.
The province, nor a Board of Trustees, can create a law or situation which, because of it's own actions, creates a violation – "So the same thing, at the same time, would be both lawful and unlawful, which is impossible." Therefore with the relocation of students and/or the closing of schools the School Boards are intentionally forcing parents and guardians to violate the Education Act, causing, it would seem, a violation of the Act and the Trustees duty.
It would also seem the School Boards must keep the accommodation at the existing school available to resident children so that the School Boards are not violating their duties as expressed in the purpose of the Act.
In conclusion – it is stated in the purpose of the Act that the School Board Trustees, the Ministry and all of those involved under the Act are to enhance student achievement and well-being. So what does the term "well-being" mean? "Well-being" is defined as:
WELL-BEING – A good or satisfactory condition of existence; a state characterized by health, happiness, and prosperity;...
According to Martin Cohn, of the Toronto Star (May 15, 2017) he states that "School closings can be brutal. Students suffer and parents grieve." And yet the purpose of the Act is to ensure the well-being of the students.
To suffer is to experience or sustain physical or emotional pain, distress, or injury, and a grievance is an injury, injustice, or wrong that gives grounds for a complaint .
Based on the information above, when a School Board decides to relocate students and/or close schools it would seem they in violation of their fiduciary duty to the students, parents, staff and taxpayers. And are they libel to action under the Education Act if they are violating their fiduciary duties?
If they are acting in good faith – it would seem "NO," but if they are in violation of the Education Act and/or the trust extended or entrusted to them, upon their election to the position of trustee, – it would seem "YES."
