r v. ANTHONY BATTAH, 2023 QCCA 388

Ortona c. Battah 2023 QCCA 388 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030413-231 (500-17-112352-201) DATE: March 15, 2023 BEFORE THE HONOURABLE MARK SCHRAGER, J.A. GIUSEPPE ORTONA APPLICANT – Petitioner v.

ANTHONY BATTAH, in his capacity of Ethics Commissioner for the English Montreal School Board RESPONDENT – Respondent and ENGLISH MONTREAL SCHOOL BOARD IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The Applicant seeks leave to appeal the judgment rendered on January 5, 2023 by the Superior Court, District of Montreal (the Honourable Justice Marc St-Pierre), dismissing an application for judicial review of a decision (the “Decision”) of the Respondent as Ethics Commissioner of the English Montreal School Board (“ EMSB ”).

The Respondent found the Applicant guilty of violating the Board’s code of conduct and imposed a two-week suspension. [ 2 ] The judge applied the standard of reasonableness to conclude that the Decision did not as a matter of fact infringe the Applicant’s Charter rights of freedom of speech. The judge also found that the sanction imposed was reasonable. [ 3 ] The Applicant is the vice-chairman of the EMSB. He chaired a meeting of school commissioners held on December 9, 2018. Prior to that meeting, he, together with all the commissioners, received an email from a parent complaining about the conduct of Ms.

Sylvia Lo Bianco, one of the commissioners. He informed the mother, author of the email, that he would discuss its content at the council meeting, so that there is no issue of breach of privacy or confidentiality. Indeed, the Respondent absolved the Applicant of that accusation. [ 4 ] The email was read at the meeting and discussed by the commissioners at some length and under harsh terms according to the Respondent who was furnished with a video recording of the meeting. In the Decision, the Respondent confirms that the email contained serious allegations of misconduct against Ms.

Lo Bianco susceptible to tarnish her reputation. All this was done in Ms. Lo Bianco’s absence; she was not present at the meeting nor did the Applicant attempt to obtain her side of the story before the meeting or tell her that the email would be discussed at the meeting. As such, the Respondent found a breach of the EMSB code of ethics in that the Applicant did not act in a “prudent, diligent or respectful” manner towards Ms.

Lo Bianco. [ 5 ] The Respondent conceded in the Decision that it interfered with the Applicant’s freedom of speech but stated that such interference was proportionate and reasonable. [ 6 ] In such regard, s. 175.1 of the Education Act provides as follows: [1] 175.1 The English-language school service centre’s board of directors must, by by-law, adopt a code of ethics and professional conduct for its members sitting as parent representatives or community representatives.

The code shall set out the duties and obligations of the members of the school service centre’s board of directors referred to in the first paragraph, and may prescribe standards that vary according to the categories of members or that apply only to certain categories of members. The code must, among other things,

(1) Include preventive measures, in particular rules for the disclosure of interests held by the members of the school service centre’s board of directors;

(2) Deal with the identification of situations of conflict of interest; (3) (paragraph repealed);

(4) Specify the duties and obligations of members of the school service centre’s board of directors even after they leave office;

(5) Include enforcement mechanisms, in particular the designation of the persons charged with the enforcement of the code and provide for penalties. (…) This

section must not be construed so as to restrict the freedom of speech inherent in a board member’s function . (Emphasis added) [ 7 ] In finding for the reasonableness of the Decision, the judge stated the following: [23] Aussi, il faut noter que le reproche que retient le défendeur n'est pas tellement d'avoir discuté de la problématique en séance publique mais plutôt de ne pas avoir vérifié avec la commissaire en cause la véracité des accusations à son endroit; n'oublions pas que la commissaire en cause n'était pas présente à l'assemblée – contrairement à ce qui s’est passé dans Prud’homme . [2] [ 8 ] The Applicant raises the following grounds of appeal: 1) The reviewing judge failed to address the Applicant’s argument of the ethics commissioner’s lack of jurisdiction to limit free speech; 2) The false premises underlying the reviewing judge’s reasons on the Applicant’s alternative argument; [ 9 ] Concerning ground no 1, the Applicant submits that: 9.

The Applicant raised several arguments before the Superior Court.

The Applicant’s main argument, however, was that the Ethics Commissioner’s decision to restrict his freedom of speech and the freedom of speech of his fellow commissioners amounted to an excess of jurisdiction insofar as the enabling legislation did not allow or provide school boards with the power to adopt a code of ethics restricting a commissioner’s freedom of speech nor could the Ethics commissioner interpret the said by-laws in a manner that restricts a commissioner’s freedom of speech without exceeding his jurisdiction; [ 10 ] The Respondent did not fault the commissioners or the Applicant for discussing the complaint contained in the email nor the fact that the Applicant initiated the exchange.

It was the manner that the Applicant and the commissioners went about the consideration of the complaint that was objectionable. Specifically, the Applicant initiated the discussion without seeking Ms. Lo Bianco’s side of the story and without notifying her that the email would be discussed at the meeting. Counsel states that Ms. Lo Bianco’s version was known as she held a press conference, but such fact did not evidently alter the manner in which the Applicant should have acted in either the Respondent’s or the judge’s view of the matter. [ 11 ] The ex parte nature of Ms.

Lo Bianco’s treatment by the commissioners justifies the distinction with the Supreme Court case of Prud’homme [3] as the judge mentions. That was a defamation suit brought against a municipal councillor for words spoken by him at a council meeting and critical of certain citizens there present. In this case, the judge concluded that the Respondent found that the breach of ethics was constituted by not asking for her side of the story and not giving Ms. Lo Bianco the chance to rebut or opportunity to be present at the meeting when the matter would be discussed.

Such a conclusion is a possible outcome arising from the facts of the case and confirms the judge’s conclusion as to its reasonableness. Moreover, there is not here an issue of jurisdiction as the Applicant submits because in fact, speech was not muzzled so as to constitute an infringement of a Charter right.

Section 175.1 of the Education Act has not been misinterpreted or misapplied. [4] [ 12 ] The second ground raised by the Applicant is a frontal assault on the reasonableness of the Decision and the judge’s analysis of it. The Applicant points to an incorrect finding by the judge to the effect that his attorney admitted at the hearing that the Applicant’s choice of words during the meeting was not polite or measured. Such error, if any, does not change the judge’s central reason mentioned above for finding for the reasonableness of the Decision.

The same comment can be made concerning the other arguments raised to impugn the judgment of the Superior Court. Moreover, that the judge does not answer every argument that the Applicant put to him is not per se a ground of appeal nor an element satisfying the criteria for leave in art. 30 C.C.P. [5] [ 13 ] Whatever critique the Applicant makes of the judgment, he has not convinced me that there arises from the present facts a point of principle or other issue going beyond the immediate interests of the parties that would qualify for the granting of leave under

article 30 C.C.P. FOR ALL OF THE ABOVE REASONS, THE UNDERSIGNED: [ 14 ] DISMISSES the Application for leave to appeal against a judgment of the Superior Court dismissing an application for judicial review, without legal costs given the absence of contestation. MARK SCHRAGER, J.A. Mtre Giuseppe Battista BATTISTA TURCOT ISRAEL For the Applicant Mtre Martin St-Jean FOREST ST-JEAN AVOCATS For the Impleaded party

Date of hearing: March 14, 2023