Pursuant to the Better Schools and Student Outcomes Act, 2023, two new regulations impacting school boards were published on July 29, 2024:
Code of Conduct Amendments
Ontario Regulation 312/24: Members of School Boards – Code of Conduct replaces Ontario Regulation 246/18 and takes immediate effect with respect to express requirements regarding trustee behaviour, which must be included in trustee codes of conduct by August 28, 2024. School boards have existing codes of conduct for trustee members, and many are likely in substantial compliance with the expectations regarding behaviour that are set out in Regulation 312. Nevertheless, school boards should review their codes to ensure compliance. In addition, codes of conduct should be reviewed to ensure compliance with expected changes to the complaint resolution provisions, which we discuss below.
By August 28, 2024, school boards will also be required to post their trustee code of conduct on their website, with annotations identifying the dates of substantive changes, and to make previous versions available to the public. Going forward, any future changes will also need to be posted with annotations.
We note that one of the explicit requirements of the new regulation is a prohibition against allegations that are frivolous or vexatious, or made in bad faith. Additionally, no board member may engage in reprisal related to a complaint. However, these requirements are not in force until s. 24 of Schedule 2 of the Better Schools and Student Outcomes Act, 2023 is proclaimed in force. This date is yet to be determined.
Integrity Commissioners
A second and related new regulation is Ontario Regulation 306/24: Integrity Commissioners and Process for Alleged Breaches of the Code of Conduct, which is also not in force until s. 24 of Schedule 2 of the Better Schools and Student Outcomes Act, 2023 is proclaimed, on a date yet to be determined.
Once in force, this regulation will require the replacement of school boards’ current code of conduct enforcement procedures with a mandatory three-step process. First, a complaint may be resolved internally. At the second stage, if resolution is not achieved within 20 days of the responding Trustee receiving written notice of the complaint, then the matter must be referred to an Integrity Commissioner.
An Integrity Commissioner has the authority to conduct an investigation and make a decision regarding a complaint referred to them. Where an Integrity Commissioner finds that a code of conduct has been breached, they may also assign consequences from an expanded list of sanctions, which will be available pursuant to amendments to the Education Act, including barring a member from exercising the privileges of the office, and reducing the member’s honorarium by up to 25%.[1]
There is a possible third stage, as either a school board or the member whose conduct was subject to the decision regarding a complaint may file an appeal of the Integrity Commissioner’s decision with the Deputy Minister of Education (or designate), who will then appoint a panel of three individuals to hear the appeal. The decision of the panel, which is final, must be communicated within 30 business days to the parties and to the Deputy Minister.
We can expect these changes to trustee code of conduct complaints to create greater consistency among school board processes and responses to prohibited behaviour. However, Regulation 306/24 provides that “A board shall pay all fees charged by an integrity commissioner appointed under the Act.” We can therefore also expect these costs to be significant for school boards, and potentially be of interest to the public.
[1] See Regulation 311/24: Honoraria for Board Members (which amends Ontario Regulation 357/06).
