Board of Education of the South East Cornerstone School Division No. 209 of Saskatchewan Appellant (Respondent) v. Wade Oberg, 2021 SKCA 28

Court of Appeal for Saskatchewan Docket: CACV3631 Citation: South East Cornerstone School Division No. 209 v Oberg , 2021 SKCA 28 Date: 2021-02-22 Between: Board of Education of the South East Cornerstone School Division No. 209 of Saskatchewan Appellant (Respondent) And Wade Oberg Respondent (Applicant) Before: Ryan-Froslie, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Leurer In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Madam Justice Schwann On appeal from: QBG 277 of 2019, Regina Appeal heard: November 13, 2020 Counsel: Nicholas Cann, Q.C. and Katherine Melnychuk for the Appellant Amanda Quayle, Q.C. and Lauren Wihak for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] For 25 years, Wade Oberg was employed by the Board of Education of the South East Cornerstone Public School Division No. 209 of Saskatchewan [Board], first as a teacher and then as a school administrator.

His service record for 24 of those years is without stain. [ 2 ] In 2017, the Board removed Mr. Oberg from his position as principal of Weyburn Comprehensive High School [WCHS] and demoted him to teacher. The Board’s decision was subsequently quashed by a Court of Queen’s Bench judge sitting in Chambers : Oberg v South East Cornerstone Public School Division No. 209 , 2020 SKQB 96 [ Chambers Decision ] . [ 3 ] Mr.

Oberg’s demotion followed what was described by the Chambers judge as a “single incident, with some additional evidence of conflict with [a] community coach for a short period prior to the single incident” (at para 75(c)). The Chambers judge found that the process leading to Mr. Oberg’s demotion was flawed and that the Board’s decision was unreasonable. [ 4 ] The Board now appeals the Chambers Decision .

Its main argument is that the Chambers judge misunderstood the limited procedural protections afforded to demoted principals under The Education Act, 1995, SS 1995, c E-0.2 [ Act ]. [ 5 ] As I will explain, the Chambers judge did not err in her

interpretation of the Act or in any of the other ways alleged by the Board. I would therefore dismiss the Board’s appeal. II. BACKGROUND A. The demotion [ 6 ] Mr. Oberg began his teaching career in 1990. He was hired by the Board in 1992. In 1997, he was appointed as the vice- principal of WCHS. He became principal of Weyburn Junior High School in 2007. One year later, he was appointed principal of WCHS. He remained in that position until he was demoted to teacher late in 2017. [ 7 ] Mr.

Oberg’s undisputed evidence was that, except for the immediate events at issue, his “personnel file disclose[d] not a single report, letter or memo raising any concerns whatsoever about his character, integrity, or decision-making”. [ 8 ] Throughout his career, Mr. Oberg coached various school teams on a volunteer basis. In 2015, Mr. Oberg was appointed assistant coach and manager of the WCHS senior girls’ volleyball team [team]. At the time, and throughout the relevant period, his daughter was a member of the team. Mr.

Oberg’s demotion was based on a finding that he “had 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]” ( Chambers Decision at para 4 ). [ 9 ] There was conflict between Mr. Oberg and the head coach of the team. A source of that discord related to the role of Mr. Oberg’s daughter on the team. The head coach, who was a community volunteer, described herself as being “personally bullied, disrespected, humiliated and unappreciated” by Mr.

Oberg in his capacities as assistant coach, parent and principal of WCHS. Mr. Oberg acknowledged, in a resolution agreement later entered into between himself and the Saskatchewan Professional Teachers Regulatory Board [SPTRB], that he and the head coach “had differing philosophies regarding the playing time for team members as well as how communication with the players was carried out”.

[ 10 ] The conflict between Mr. Oberg and the head coach played out in several forums. One was a coaches’ meeting held on September 19, 2017, which also included the team’s other assistant coach, teacher Blake Johnson. It later came out that the head coach had secretly recorded this meeting. A transcript of what was said at the meeting featured in these proceedings. [ 11 ] Matters came to a head between Mr. Oberg and the head coach on October 20, 2017, when the team was participating in an out-of-town volleyball tournament. There is controversy as to some events and words spoken on that date.

What is not in dispute is that Mr. Oberg attempted to substitute his daughter into play during a game. The head coach intervened to stop this substitution. An altercation occurred between Mr. Oberg and the head coach. Mr. Oberg’s daughter left the gym. Mr. Oberg followed his daughter and informed the head coach that he had “had enough” and this was her last game as head coach. There were further interactions between members of the team, parents in attendance at the tournament and Mr. Oberg, at both a restaurant and at a hotel where the entourage was staying.

That evening, one of the parents reported what had occurred to a senior administrator of the school division. Events then moved quickly. [ 12 ] The next day, a Saturday, Gordon Husband, the division’s Superintendent of Schools (West Service Area), asked its Deputy Director, Keith Keating, to assist him in an investigation. On the Sunday, Mr. Husband met with Mr. Oberg at the Board office. Mr. Oberg was sent home with pay pending the outcome of the investigation. He was instructed not to communicate with anyone involved in the events. Mr.

Oberg attested that this prevented him “from mounting a defence because [he] could not speak to witnesses or obtain the evidence necessary to defend the complaints”. Mr. Husband “informed Mr. Oberg that after the Investigation was complete, [he] would

schedule a meeting with him in order to give him an opportunity to respond to the allegations against him”. [ 13 ] Over the course of the following week, Mr. Keating and Mr. Husband interviewed the head coach, Mr. Johnson, the referee of the match during which the incident took place, all team members and four parents of team members. The investigators also reviewed “11 correspondences received by the school division from parents, students, coach [ sic ] and observers”. Following the completion of these steps, on October 30, 2017, Mr. Keating and Mr. Husband interviewed Mr. Oberg. Mr.

Oberg was accompanied at that meeting by a representative of the Saskatchewan Teachers’ Federation, Kevin Schmidt. A significant issue in this appeal relates to what Mr. Oberg was told at this meeting about the allegations he was facing. [ 14 ] On November 1, 2017, Mr. Keating and Mr. Husband delivered a 13-page report to the Board [Investigation Report]. The Investigation Report concluded with the following recommendation: Recommendation: It is therefore recommended that the board of education adopt a resolution giving Mr.

Oberg notice of the board’s intention to amend his contract to exclude duties as principal of Weyburn Comprehensive School effective the 1st day of November, 2017 for the following reasons: 1. He has used his position of authority as a principal in an inappropriate manner 2. He has demonstrated significant lapses in judgment 3. He has failed to conduct himself in a manner befitting a role model for students 4. His conduct has damaged the reputation of the school division. [ 15 ] A special meeting of the Board was convened on November 1, 2017, for the purpose of considering this recommendation.

The Board was provided with a copy of the Investigation Report and a transcript of the recording of the coaches’ meeting held on September 19, 2017. At the special meeting, the Board passed a resolution adopting the recommendation contained in the Investigation Report. The Board further resolved to advise Mr. Oberg that, in accordance with s. 215(3) of the Act , it was “required to grant a request for [his] attendance at a meeting of the Board to show cause why [his] contract of employment should not be amended” to exclude the duties of principal at WCHS.

Both parties, as well as the Chambers judge, refer to the November 1, 2017, resolutions of the Board as the “First Decision”, nomenclature I will adopt in these reasons. [ 16 ] Mr. Oberg was given formal notice of the First Decision by registered letter dated November 3, 2017, but did not receive the letter until November 6, 2017. On November 7, 2017 – four days after notice of that decision had been made and a week after his meeting with the investigators – Mr. Oberg was provided with a copy of the Investigation Report and the transcript of the September 19, 2017, coaches’ meeting. [ 17 ] Mr.

Oberg exercised his right to a show cause hearing. A second special meeting of the Board was convened for this purpose on December 5, 2017. Several students and parents had written to the Board to express their views on the incident and the recommendation to demote Mr. Oberg. Copies of these letters were provided to Board members, but not to Mr. Oberg. Mr. Oberg also collected letters of support which were separately submitted on his behalf to the Board. [ 18 ] Mr. Oberg appeared before the Board at the second special meeting. He was accompanied by Mr. Schmidt. Also present at the meeting were Mr.

Keating and Carolynn Little, the Division’s Director of Education and Chief Executive Officer. Mr. Oberg and his representative were afforded an opportunity to make representations to the Board concerning the demotion recommendation. The extent of Ms. Little’s participation in the meeting became a matter of some controversy before the Chambers judge. [ 19 ] After hearing from Mr. Oberg and Mr. Schmidt, the Board moved into a closed session.

In that session, the Board passed a resolution stating that it had “considered the information provided at the show cause hearing” and that it would “uphold” its earlier motion to adopt the recommendation contained in the Investigation Report. This resolution is referred to by the parties and the Chambers judge as the “Second Decision”. The parties also refer to the First Decision and Second Decision collectively as the “Decisions”. Again, I will adopt this nomenclature in these reasons.

B. Post-demotion events [ 20 ] The Board issued a news release regarding Mr. Oberg’s demotion and later went on to release to the public the minutes from the meeting where the First Decision had been made. Mr. Oberg’s uncontested evidence is that the entire matter was the subject of media attention and public discussion. [ 21 ] A complaint was made by the Board to the SPTRB. The SPTRB investigated and issued its own 46-page investigation report dated May 1, 2018 [SPTRB Investigation Report]. Mr. Oberg settled the SPTRB complaint in 2019. The settlement agreement contained Mr.

Oberg’s admission as to certain facts and that he had committed professional misconduct as defined by s. 33 of The Registered Teachers Act , SS 2015, c R-15.1 , and the SPTRB bylaws. He also agreed to receive a reprimand, not to engage in coaching for one year and to complete a course or seminar on the topic of conflict of interest. [ 22 ] In advance of the show cause hearing, Mr. Oberg had asked the Board for copies of the complaints leading to the investigation, witness statements and the investigators’ notes produced during their interviews. Shortly after the show cause hearing, Mr.

Oberg received some, but not all, of this information. When the remainder was not provided, Mr. Oberg filed an access to information request for the remaining records with the Saskatchewan Information and Privacy Commissioner pursuant to The Local Authority Freedom of Information and Protection of Privacy Act , SS 1990-91, c L-27.1 . On July 6, 2018, the Office of the Saskatchewan Information and Privacy Commissio ner recommended that the Board release further information to Mr. Oberg. The Board agreed to disclose additional records to Mr. Oberg. Mr.

Oberg’s application to quash the Decisions followed this disclosure. C. The Chambers Decision [ 23 ] Mr. Oberg’s amended notice of application asserted that the Board had “breached his rights to procedural fairness and natural justice” during the investigation and at the show cause hearing.

It also alleged that the revocation of his duties as principal of WCHS was “grossly disproportionate to the conduct giving rise to the Incident” and “ignore[d] or [gave] inadequate weight to [his] exemplary and unblemished personnel record” and therefore was substantively unreasonable. [ 24 ] The Chambers judge concluded that “the Board owed Mr. Oberg a high degree of procedural fairness in the process it employed to come to the Decisions” (at para 29). She found that the “Board breached its duty to be procedurally fair in three fundamental ways” (at para 41). The first was the failure to provide Mr.

Oberg with “sufficient particulars of the allegations against him” during the investigation. This occasioned the second breach, namely, the failure to provide him “ with a fair opportunity, meaning a thorough and complete opportunity, to respond to those allegations during the investigation” (at para 42) . The third breach was the “Board’s failure to provide reasons for the Second Decision” (at para 50).

The Chambers judge concluded that while “it could be inferred that the Board’s reasons for its First Decision are contained in the Investigation Report” (at para 52), the Board “provided no explanation as to why it evidently rejected Mr. Oberg’s submissions in their entirety”. Because of this, the Chambers judge reasoned, “the Board cannot demonstrate that it listened to Mr. Oberg at the show cause hearing and considered his submissions before making the Second Decision, as it was required to do” (at para 62). [ 25 ] The Chambers judge also stated that “if Ms.

Little did participate in the show cause hearing and make submissions to rebut Mr. Oberg’s case, this was procedurally unfair”. However, the Chambers judge could not resolve the conflicting evidence on this point, and therefore her decision did “not turn on this issue” (at para 65). [ 26 ] Because of the breaches of procedural fairness she found to have occurred, the Chambers judge determined that the “Decisions are void ab initio or invalid from the outset” (at para 67).

The Chambers judge observed that the “unfairness in the procedure call[ed] into question whether the facts found in the investigation are accurate”. However, she concluded that, even if she were to “accept that the facts found in the Investigation Report are accurate, … the disciplinary penalty imposed by the Board was unreasonable, in light of the Board’s enabling statute, its own administrative policies, and the relevant factual and legal limitations that establish the reasonable alternative outcomes in a situation such as this” (at para 69).

As a result, she ordered the Decisions to be quashed as being unreasonable. [ 27 ] The Chambers judge recognized that, when a Court quashes a decision, the usual remedy is to remit the matter to the decision- maker for reconsideration. However, she concluded that, even accepting the facts found in the Board’s investigation, demotion was not a reasonable outcome and “[t]he Board’s statutory mandate under [ s. 215(3) of the Act ] provides no option to impose an alternative disciplinary penalty”.

As a result, the Chambers judge found that, “remitting this matter to the Board for reconsideration serves no useful purpose, as the reinstatement of Mr. Oberg’s duties as principal is inevitable” (at para 87). For this reason, the Chambers judge ordered that Mr. Oberg be reinstated to principal duties. III. ISSUES [ 28 ] The answers to the following four questions are determinative of the Board’s appeal: (

a) Did the Chambers judge err in concluding that the Board had breached its duty of procedural fairness owed to Mr. Oberg? (

b) Did the Chambers judge err in determining that the Board’s breaches of its duty of procedural fairness rendered the Decisions void ab initio ? (

c) Did the Chambers judge err in concluding that the Board’s decision to demote Mr. Oberg was unreasonable? (

d) If the Board’s process was procedurally unfair, or the demotion was unreasonable, what remedy is appropriate? IV. ANALYSIS

A. Did the Chambers judge err in concluding that the Board had breached itsduty of procedural fairness owed to Mr. Oberg? 1. Framework and standard of review [29] The first issue is whether the Chambers judge erred in concluding that the Board had breached its duty of procedural fairnessowed to Mr. Oberg. Two concessions made by the Board help frame the discussion of this issue. [30] First, the Board agreed before the Chambers judge, and in this Court, that it “owed Mr. Oberg some degree of proceduralfairness in its decision-making process” (Chambers Decision at para 23).

This admission was offered with reference to the idea that,although public law remedies are not generally available in matters dealing with the dismissal or demotion of public employees, “theremay be occasions where a public law duty of fairness will still apply” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 115, [2008] 1SCR 190 [Dunsmuir]).

One such occasion is where, as here, the “duty of fairness flows by necessary implication from a statutory powergoverning the employment relationship” (at para 116). [31] The Board’s second concession relates to the general framework to be applied when answering this first issue. The Chambersjudge looked to Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 23–27[Baker] for guidance. In Baker, L’Heureux-Dubé J. identified five non-exhaustive factors as assisting in the determination of the contentof the duty of procedural fairness owed in a particular context.

These factors were summarized by the Chambers judge as follows: [21] Five important factors assist in determining the degree of procedural fairness owed by a public body to someone affected by itsdecision. The following factors are not comprehensive, but they provide a basic framework for assessing procedural fairness: (

a) The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required; (

b) The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections arerequired when no appeal procedure is provided in the statute or when the decision will finally determine the issue; (

c) The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the more stringentthe procedural protections; (

d) The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policythe public body has in place respecting processes for decision-making; and (

e) The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose itsown procedures, or when the body has expertise in determining what procedures are appropriate. [32] Unifying this list of non-exhaustive factors “is the notion that the purpose of the participatory rights contained within the dutyof procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decisionbeing made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward theirviews and evidence fully and have them considered by the decision-maker” (Baker at para 22). [33] The Board takes no issue with the Chambers judge’s use of the Baker framework or her

summary of the principles coming fromthat case. Instead, the Board’s complaint is with respect to the Chambers judge’s application of the Baker factors in the context of thefacts before her.

In this regard, I note that, “[w]here an appellate court considers allegations of breach of procedural fairness, the standardof review is one of correctness” (Feng v Saskatchewan (Economy), 2020 SKCA 6 at para 43, 70 Admin LR (6th) 237). [34] With these matters in focus, I turn to the Board’s arguments as to why the Chambers judge erred in her conclusions relating tothe breach of the duty of procedural fairness in the present context. 2. Breaches of duty of fairness in the investigation a.

Statutory context [35] Baker requires that a court charged with fixing the content of the duty of procedural fairness give careful consideration to the“nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (at para 24, quoting Old St. BonifaceResidents Assn. Inc. v Winnipeg (City), (SCC), [1990] 3 SCR 1170 at 1191). The Board’s self-described “main issue” isits contention that the Chambers judge misapprehended the scheme prescribed by the Act for removing principals from office.

In thisregard, the Board contrasts the procedural protections afforded to teachers who are disciplined, suspended or terminated to the morelimited procedural protections afforded to principals who are demoted. It suggests that an analysis of the overall statutory scheme“inevitably leads to [a] different conclusion on the degree and content of procedural fairness required”.

Among the Board’s specificpropositions is that, “[a]s long as the Board provides proper notice of contract amendments under s. 215 of the Act, the Board has met itsstatutory obligations and is not required to prove just cause”. [36] In demoting Mr.

Oberg, the Board was acting pursuant to the statutory authority conferred by s. 215 of the Act, which states asfollows: Change in employment status 215(1) Where a contract of employment between a board of education or the conseil scolaire and a teacher includes duties as a principal,assistant principal, vice-principal, supervisor or consultant, the board of education or the conseil scolaire may give notice of its intention toamend the contract to exclude those duties, but no amendment is to be deemed to alter the employment status of that teacher in any other

respect.

(2) Any notice given by the board of education or the conseil scolaire pursuant to subsection (1) must be given in accordance with clause 210(1)(b), (

c) or (d).

(3) A notice of intention given by the board of education or the conseil scolaire pursuant to subsection (1) must state that the principal, assistant principal, vice-principal, supervisor or consultant may apply, at any time within 10 days after receipt of the notice, to the board of education or the conseil scolaire for an opportunity to attend at a meeting of the board or the conseil scolaire to show cause why the contract of employment should not be amended.

(4) The board of education or the conseil scolaire mentioned in subsection (3) shall make provision for the attendance of the individual mentioned in subsection (3) at the next regular or special meeting where the matter is discussed. [ 37 ]

Section 215 is found within

Part V of the Act entitled “Teachers”, and the further sub-part entitled “Employment of Teachers”.

Section 209 of the Act establishes that the relationship between a board of education and a teacher is contractual in nature: General terms of employment 209

(1) The applicable provisions of this Act and of the regulations are deemed to be terms of employment under a contract of employment between a teacher and a board of education or the conseil scolaire.

(2) Any ancillary conditions of employment are to be given effect where they are incorporated in a collective bargaining agreement. [ 38 ] A principal’s responsibilities are in addition to those that exist under a teacher’s contract.

In this regard, s. 215(1) also states that the removal of such duties results in an “ amend[ment to] the contract to exclude those duties, but no amendment is to be deemed to alter the employment status of that teacher in any other respect”. [ 39 ] The statutory procedures applicable to the removal of a principal’s duties can be contrasted to those relating to the termination or suspension of a teacher.

In this regard, the Act sets out reasons for the termination or suspension of a teacher’s contract: Reasons for termination or suspension 209.01 If a teacher’s contract of employment is terminated or suspended, the employer’s reasons for the termination or suspension, as the case may be, may include: (

a) professional incompetence within the meaning of The Registered Teachers Act ; (

b) professional misconduct within the meaning of The Registered Teachers Act ; (

c) neglect of duty; or (

d) any other cause that, in the opinion of the teacher’s employer, renders the teacher unsuitable for continued teaching service in the position held by that teacher at the time of the termination or suspension. [ 40 ] The Act also prescribes specific procedures a school board must follow when terminating a teacher’s contract, for cause and other reasons. The first of these is related to notice, found in s. 210 of the Act , which provides as follows: Termination of contract by board of education 210

(1) A board of education or the conseil scolaire may: (

a) without notice, suspend or dismiss a teacher and terminate the contract of that teacher for gross misconduct, neglect of duty or refusing or neglecting to obey any lawful order of the board of education or the conseil scolaire; (

b) notwithstanding any other provision of this Act , terminate its contract of employment with the teacher by providing the teacher with a notice of termination in the prescribed form by registered mail not less than 30 days prior to the day on which the termination is effective where a teacher is employed in a teaching position that is no longer considered by the board of education or the conseil scolaire to be necessary for the teaching requirements or educational programs of the school division or the division scolaire francophone; (

c) terminate its contract of employment with a teacher, where the termination is to be effective on June 30 in any year, by sending to the teacher by registered mail, not later than May 31 in that year, a notice of termination in the prescribed form; or (

d) terminate its contract of employment with a teacher, where the termination is to be effective on a date other than June 30 in any year, by sending to the teacher by registered mail, not less than 30 days prior to the day on which the termination is effective, a notice of termination in the prescribed form.

(2) Where a teacher whose contract is terminated pursuant to clause (1)(

a) requests, in writing, written notification of the termination, the board of education or the conseil scolaire shall provide the teacher with that notice within five days of the termination.

(3) A notice of termination sent pursuant to this

section must set out the reason or reasons for the termination. [ 41 ] As can be seen from this provision, a school board may, “without notice, suspend or dismiss a teacher and terminate the contract of that teacher for gross misconduct, neglect of duty or refusing or neglecting to obey any lawful order of the board” (s. 210(1) (a)). A board of education may also terminate its contract of employment with a teacher by providing the teacher with notice of termination (s. 210(1)(b), (

c) and (d)).

[ 42 ] A teacher who receives a formal reprimand, is suspended or is terminated has access to a robust hearing procedure. In such circumstance, a teacher may require an investigation by a three-person board of reference consisting of a nominee of the teacher, a nominee of the school board and a chairperson to be nominated jointly by the first two nominees or, failing them, by the provincial minister or a judge of the Court of Queen’s Bench (s. 218).

The board of reference has the power to procure the attendance of witnesses by serving a notice that has the same effect “as a subpoena requiring the attendance of a witness and the production by the witness of documents at the trial of an action” (s. 222(2)). The board of reference “shall make provision for and keep any record of the proceedings of the investigation that it may consider necessary” (s. 223). The board of reference has broad decision-making powers, including to confirm or vary a termination, suspension or formal reprimand (s. 225).

Ultimately, the “decision of the board of reference is final and any order given pursuant to

section 225 is binding on the parties to the investigation” (s. 226). [ 43 ] The extensive statutory process that is applicable when a teacher is dismissed or disciplined stands in contrast to what the Act contemplates when a principal’s duties are removed, pursuant to s. 215 . To summarize, when a teacher’s contract includes principal duties, the school board “may give notice of its intention to amend the contract to exclude those duties” (s. 215(1)).

The notice must state the principal’s right to apply, within ten days, “for an opportunity to attend at a meeting of the board … to show cause why the contract should not be amended” ( s. 215(3) ). The Board must then “make provision for the attendance of the [principal] at the next regular or special meeting where the matter is discussed” (s. 215(4)).

This, of course, is exactly the process followed by the Board in this case. [ 44 ] Having regard to the differences in the statutory regime applicable, on the one hand, when a principal is demoted and, on the other, when a teacher is disciplined, suspended or discharged, I have no difficulty agreeing with the Board’s submission that fairness principles did not demand that Mr. Oberg have access to the same formal hearing process available to a teacher who is disciplined, suspended or discharged.

However, that is not the purport of the Chambers Decision , nor does this idea lead to the conclusion that the Chambers judge improperly inflated the content of the duty of fairness owed to Mr. Oberg. Instead, as I will explain, the Chambers judge recognized that the Act prescribes a different, and less robust, procedure when principals are demoted.

Her analysis was focused on what aspects of procedural fairness should attach to the specific statutory regime applicable when a principal’s duties are removed. [ 45 ] A key focus of the argument before the Chambers judge was on what implications follow from the fact that the Act prescribes a two-step process when a principal is demoted – that is, an initial decision followed by a show cause hearing. In the context of this case, the First Decision was based on the facts found and recommendations contained in the Investigation Report.

Before the Chambers judge, the Board argued that “when the outcome of an investigation does not result in a decision, but instead triggers the opportunity for a hearing, the standard of fairness is reduced” ( Chambers Decision at para 31 , citing Abouhamra v Prairie North Regional Health Authority , 2016 SKQB 293 , 16 Admin LR (6th) 265). It said that, since the removal of Mr. Oberg’s duties only occurred after he was afforded an opportunity to present his case before the Board at a show cause hearing, little or no procedural fairness was owed at the investigation stage. [ 46 ] The Chambers judge did not agree.

Instead, she held that the Board “was required to conduct its investigation in good faith, employing a high degree of procedural fairness” (at para 32). She gave three reasons for this conclusion. The first was that the Board had adopted the Saskatchewan School Boards Association [SSBA] investigation manual, Investigations in Schools: Issues and Perspectives for Boards of Education (SSBA Legal Services and Strategic HR/ER, 25 February 2015) [SSBA investigation manual], thereby triggering “a legitimate expectation that it will be followed” (at para 33).

The second was that “the investigation was the only stage of the adjudication process where evidence was weighed in making the First Decision” (at para 34). The third was that the Board, as a public body, was required to “exercise its statutory powers in relation to an employee’s employment contract according to the rules of administrative law, which dictate procedural fairness and natural justice, even in circumstances where the employment contract may be terminated at pleasure” (at para 35).

I will deal with the Board’s specific objections to these reasons in order and then return to discuss the Chambers judge’s specific findings relating to the breach of the duty of procedural fairness during the investigation. b.

Reliance by the Chambers judge on the SSBA investigation manual and Board administrative policies [ 47 ] The Chambers judge held that “the Board’s own policies, namely [administrative procedures] AP 151, AP 432, and its internal [SSBA] investigation manual, suggest that a high standard of procedural fairness will be employed in coming to decisions respecting an employee’s employment contract, and during any workplace investigation that may affect that contract” (at para 27).

The Board argues that this conclusion evinces error. [ 48 ] The Board does not contend that the Chambers judge erred by relying on the SSBA investigation manual as informing Mr. Oberg’s procedural expectations. Instead, it asserts that the manual “does not provide a legitimate expectation of a high degree of procedural fairness”, and in any event “chiefly deals with the investigation process and does not address the show cause process”. [ 49 ] Although the investigators purported to follow the SSBA investigation manual, it is evident they did not.

The manual specifically stated that the “recommended practice” was that “the final report of the investigator be shared with the person being investigated before it is presented to the decision maker. The person can then be asked if he or she has anything to add that might be important or relevant to the issues”. The Chambers judge did not insist that this specific process be followed by the Board. Rather, she simply required that Mr.

Oberg be given the opportunity to provide responses to specific allegations: [48] In order to ensure that an employee is given an opportunity to be heard, it is crucial that specific findings that are relied upon to come to a conclusion are put expressly to the employee for a response. To ensure this practically, it is often necessary to re-interview the employee at the conclusion of an investigation to put the investigator’s factual conclusions to him or her to give a final opportunity to respond.

Given that the Investigation Report contained findings of fact consisting of quotations and reconstructed conversations, this was an appropriate case to re-interview Mr. Oberg after a draft of the Investigation Report was complete in order to give him a fair opportunity to respond. [ 50 ] The easiest way to provide the particulars needed by Mr. Oberg to respond in a meaningful way to the allegations against him might well have been to provide him with a draft of the Investigation Report.

However, the Chambers judge did not say that fairness demanded this, even though the SSBA investigation manual described this to be the “recommended practice” . [ 51 ] AP 151, entitled “Mediation of a Complaint or Grievance”, governs complaints “regarding the operation of the school, or the

treatment of a student”. While AP 151 does not appear to encompass the demotion of a principal, the policy includes statements that speakto the Board’s intent to follow fair processes.

In this regard, it states in background as follows: To ensure fairness and equity for all who are part of the Division, it is recognized that the Division must develop procedures for theinvestigation, adjudication and resolution of complaints and grievances, and that the process used must be careful and just. [52] AP 432, as it was at the time relevant to this matter, was entitled “Administrator Professional Growth and Evaluation” and is ofeven greater significance. It incorporated a process for professional development under a ten-step program.

It provides that it is only at thelast step, “[i]f progress is judged unsatisfactory at the conclusion of the specified time period, [that] the administrator will be advised ofthe recommendation for demotion or the recommendation for dismissal under the provisions of

Section 210 of the [Act]”. The Chambersjudge referred to this policy when explaining why the decision to demote Mr. Oberg was unreasonable: [72] Mr. Oberg’s workplace was governed by a 10-step performance management policy, AP 432. While I agree with the Board thatthis policy was aimed at performance management, rather than misconduct, it is undisputed that teachers and administrators in thisworkplace are subject to progressive discipline. Progressive discipline is founded, in part, on proportionality.

While a progressivediscipline policy does not mean that an employee can never be justly dismissed or demoted without first imposing less serious discipline,it does mean that if a severe penalty is the first penalty imposed, then the misconduct at issue must be proportionate to that penalty. [53] I agree with the Chambers judge’s analysis.

She did not err in finding that these two administrative policies bore on the duty offairness owed by the Board in the investigation and, in the case of AP 432, the reasonableness of the demotion itself, as I will discuss laterin these reasons. [54] I see no error in the Chambers judge’s use of the SSBA investigation manual or the Board’s two administrative policies toassist in her determination as to the procedural protections to which Mr. Oberg was entitled. c. The significance of the Investigation Report and the show cause hearing [55] In reaching the conclusion that fairness demanded that Mr.

Oberg be provided greater detail concerning the allegations againsthim during the investigation, the Chambers judge attached significance to the role of the investigators in finding the facts upon which theFirst Decision would be based: [34] … the investigation was the only stage of the adjudication process where evidence was weighed in making the First Decision. Thissuggests that the investigation needed to be highly procedurally fair, because the Board initially relied solely on the findings of theInvestigation Report.

While in some cases investigatory shortcomings may be remedied by a subsequent hearing, which includes anopportunity to test the evidence, such opportunity did not exist here (see, for example, Mondesir v Manitoba Association of Optometrists(1998), (MB CA), 163 DLR (4th) 703 (Man CA)). The Board did not know whether a show cause hearing wouldfollow its First Decision because the show cause hearing was not mandatory unless requested by Mr. Oberg: s. 215(3) of The EducationAct, 1995. If Mr.

Oberg chose not to require a show cause hearing, then the Board’s First Decision would be its final decision, based solelyon the Investigation Report. As a result, it was important that the investigation be highly procedurally fair in case it was the onlymechanism which ever assessed the evidence. [56] I agree with the Chambers judge on each of these points. The Investigation Report was the sole source of information beforethe Board when it made the First Decision. There was no other way for the Board to establish the facts underpinning the First Decision. Atthat point in the process, Mr.

Oberg could speak to the Board only through the words and messages he was able to convey to theinvestigators and, then, only if and to the extent to which the investigators determined to include his responses in their report. [57] The Chambers judge also correctly pointed out that it could not be assumed that shortcomings in the process leading to the FirstDecision would be overcome by the show cause hearing.

As she observed, there was no guarantee that a hearing would take place.Moreover, in circumstances where a show cause hearing is requested, it provides an imperfect remedy for any deficiencies in theinvestigation process. Let me explain. [58] The specific purpose of the show cause hearing is to allow a party facing an adverse decision to convince the decision-makerthat its tentative decision should not be made final. In the context of the Act, a person called to show cause is compelled to displace apresumptive decision if they are to achieve an outcome in their favour.

In this case, once the First Decision was made, the onus rested onMr. Oberg to convince the Board he should not be demoted. In other words, he had to convince the Board not to do what it had alreadydecided it would do. The slate was not clean and, in my respectful view, the content of the duty of fairness at the investigation stage mustbe defined with reference to this reality. [59] It is a matter of common experience that people often find it difficult to reverse a decision they have made or to resile from aposition they have staked.

For this reason, jurors are often told not to decide a case before hearing all the evidence and to avoid discussingthe case amongst themselves before deliberations begin. As explained in R v Sidhu, 2004 BCCA 59 at para 27, 183 CCC (3d) 199,quoting from United States v Resko, 3 F3d 684 (3rd Cir 1993) at 689, once someone expresses a view to another person, “he or she islikely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion”.

Simply put,people can become wedded to positions. [60] None of this is to suggest that the Board did anything wrong when it made the First Decision. To the contrary, the Act requiresa school board considering the demotion of a principal to open a two-step process. It must first make what amounts to a preliminarydetermination.

This may then be followed by a show cause hearing at which that preliminary determination will be subject to challenge.My point is that, because the show cause hearing takes place only after the Board has presumptively decided against the principal’sinterest, the balance tilts in favour of affording a measure of procedural fairness before that first, presumptive, decision is made. d. Chambers judge’s reliance on the principles of administrative law [61] The Chambers judge’s determination at paragraph 48 that procedural fairness required that “specific findings that are relied

upon to come to a conclusion are put expressly to the employee for a response” is also supported by the substantive limitations the Actimposes on a person in Mr. Oberg’s position. In other contexts, an employee would be entitled to remedies at common law by virtue of acontract of employment. As stated in Dunsmuir, “[w]here a public employee is protected from wrongful dismissal by contract, his or herremedy should be in private law, not in public law” (at para 114). However, much of this has been displaced by the Act.

For example, ithas been held that the show cause process prescribed in s. 215 ousts the common law remedies of a principal demoted to teacher: Stensonv Board of Education of Horizon School Division No. 205, 2013 SKQB 364, 430 Sask R 270. In Patykewych v The Board of Education forthe Regina Roman Catholic Separate School Division No. 81 (1996), (SK CA), 137 Sask R 273 (CA), Lane J.A. heldthat a teacher could not pursue a common law remedy because the Legislature clearly intended dismissal and termination to be dealt withby statute and collective bargaining.

Likewise, in Lanigan v Eastern School District, 2014 PECA 3, 48 CPC (7th) 343, Mitchell J.A. heldthat Prince Edward Island’s School Act, RSPEI 1988, c S-2.1, created a comprehensive labour relations scheme for the parties. See also:Mitchell v Gilpin, 2004 SKQB 311, 250 Sask R 246.

As a result, contrary to the Board’s suggestion that s. 215 should be interpreted todetract from the procedural fairness rights a principal should enjoy when demoted, the fact that principals are deprived of other remediesmakes it important that they have a measure of meaningful protection during the statutory process. [62] Three decisions under the antecedent to the current Act support this conclusion: Collins v Board of Education of Estevan RomanCatholic Separate School Division No. 27 (1988), (SK CA), 68 Sask R 86 (CA) [Collins]; Barrett, Nicholas and Reissv Board of Education of Northern Lights School Division No. 113 (1988), (SK CA), 64 Sask R 81 (CA) [Barrett]; andKnight v Indian Head School Division No. 19, (SCC), [1990] 1 SCR 653 [Knight].

Collins, Barrett and Knight were notmentioned by the Board in its factum and it made no serious effort to grapple with them in oral argument. [63] Much like this case, Collins involved the demotion of a principal to teacher. The notice in Collins was given pursuant to whatwas then s. 211 of The Education Act, RSS 1978, c E-0.1 (Supp) [1978 Act], the antecedent to s. 215 of the current Act, quoted earlier inthese reasons.

Section 211 of the 1978 Act read as follows: 211(1) Where a contract of employment between a board of education and a teacher includes duties as a principal, assistant principal, vice-principal, supervisor or consultant, the board may give notice of its intention to amend the contract to exclude such duties, but no suchamendment shall be deemed to alter the employment status of that teacher in any other respect.

(2) Any notice given by the board of education under subsection (1) shall be given in accordance with the provisions of clause 206(b), (c)or (d).

(3) A notice of intention given by the board of education pursuant to subsection (1) shall state that the principal, assistant principal, vice-principal, supervisor or consultant, as the case may be, may, at any time within 10 days after receipt of the notice, apply to the board foran opportunity to attend at a meeting of the board to show cause why the contract of employment should not be amended, and the boardshall make provision for his attendance at its next regular or special meeting. [64] Similar to the current requirements, at the time Collins was decided, a school board seeking to remove a principal’s duties wasrequired to provide the principal with notice and with reasons for the removal.

That requirement was found in s. 206(

d) of the 1978 Act.The language in s. 210(1)(

d) of the current Act, quoted earlier, is similar to that found in the old s. 206(d). Section 215(2) of the currentAct, also quoted earlier, requires that notice of an intention to demote a principal be given in accordance with s. 210(1)(b), (

c) or (d).While s. 210(1)(

d) leaves out the requirement that the notice shall set out the reasons for the removal of duties, s. 210(3) states that a“notice of termination sent pursuant to this

section must set out the reason or reasons for the termination”. It would seem that, because therequirement to give reasons set out in s. 210(3) of the current Act applies to a change in the employment status of a teacher who is also aprincipal, Collins continues to inform the content of the duty of procedural fairness owed to a school principal under the current statutoryregime. The Board did not suggest otherwise in argument, but instead submitted that it had provided Mr. Oberg with such reasons. Withthis somewhat lengthy

preamble, it is helpful to turn to this Court’s reasoning in Collins. [65] The respondent in Collins was given notice that the school board would be amending his contract to remove his principalduties. The trial judge had held that the notice of intention to amend the principal’s contract was lacking sufficient particulars of thereasons for the demotion. As explained below, this determination was set aside on appeal. However, Sherstobitoff J.A. made clear thatprinciples of natural justice applied to proceedings under the 1978 Act. As he put it: [10] We are therefore left with s. 206(

d) which simply says that the notice shall set out the reason or reasons for termination. When s.206(

d) and s. 211 are read together, it becomes immediately apparent that the purpose of the reasons required by s. 206(

d) is to providethe recipient of the notice with sufficient information to enable him to respond to the reasons at the hearing to which he is entitled under s.211(3). These provisions coincide with the common law requirements of procedural fairness. The inclusion of these procedural provisionsin the statute does not, in our view, exclude the application of the principles of natural justice in respect of any lacunae in the statute.

Thiscourt has, in two recent judgments, [Barrett] and [Knight], found the principles of natural justice to apply to proceedings under thoseportions of the Act dealing with termination of administrative officers of school divisions. The same reasoning applies equally to thetermination of teachers and the demotion of principals and vice principals.

Sections 196 to 226 of the Act set out in some detail aprocedure designed to provide teachers with procedural fairness in matters of termination, discipline and demotion and nothing in thoseprovisions indicates any intention on the part of the legislators to exclude the common law principles of natural justice where the statute issilent. Where the statute speaks, it must of course prevail. Where it is silent the common law rules of procedural fairness apply.

This arisesby necessary implication from the provisions of ss. 196 to 226. [66] Justice Sherstobitoff ultimately held that the “three closely typed pages of details of evidence containing dates, times andnames of persons in respect of incidents and occurrences upon which the [school board] relied” met these requirements (at para 16).However, he was equally emphatic that procedural fairness required this level of particularization and disclosure, and that in other contextsmore might be required: [18] In finding that the notice under s. 206(

d) was sufficient to meet the requirements of the statute, we do not mean to say that therespondent in this case was not entitled to the particulars which he obtained on September 8th. Indeed, we agree that those details ofevidence were necessary in order to enable him to respond to them. However, we draw a distinction between two requirements ofprocedural fairness in this case. The first is the requirement of s. 206(d) – a notice of intention to demote with reasons for that decision.

This requirement was fulfilled by the notice setting out the grounds . The second is disclosure of the evidence which is relied upon by the decision-maker. In simple cases, this may be disclosed in the notice. However, there may be many cases, as here, where the evidence is too voluminous or complex to incorporate into the initiating document. Such evidence must, however, be disclosed upon request . In this case, the moment that the respondent made known that he considered the reasons given in the notice to be not adequate, the appellant disclosed the details, and at the same time offered to postpone the hearing.

That, in our view, met the requirements of procedural fairness. (Emphasis added) [ 67 ] One important point I take from Collins is that the statutory procedures prescribed in the 1978 Act , and now in the current Act , do not displace, but instead should generally be understood as being in harmony with, the rules of natural justice, except to the extent that the latter are specifically displaced.

This conclusion would apply regardless of whether the requirement for reasons pursuant to s. 210(3) is applicable by virtue of s. 215(2). [ 68 ] In Barrett , the secretary treasurer of a school board was dismissed from his position. Justice Sherstobitoff held that the employee was entitled “to procedural fair play: reasons for the dismissal and a hearing” (at para 30), pursuant to s. 113 of the 1978 Act . [ 69 ] In Knight , a school board terminated a director of education on three months’ notice. A Court of Queen’s Bench judge had found that the school board was within its rights to do so.

This Court allowed the employee’s appeal. While the Supreme Court of Canada agreed with the Queen’s Bench judge, both it and this Court recognized that the statutory regime should be interpreted in a fashion consistent with the principles of procedural fairness. The majority of the Supreme Court also emphasized that clear statutory language is required to restrict a general right to procedural fairness (at 677–678): Having come to the conclusion that there exists a general right to procedural fairness, the statutory framework must be examined in order to see if it modifies this right ( Wiseman v.

Borneman , [1969] 3 All E.R. 275 at p. 277 , per Lord Reid). However, as was pointed out by Dickson J. in Kane v. Board of Governors of the University of British Columbia , supra , at p. 1113: “To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument”. Thus, the provisions of the Education Act must be quite clear to lead us to the conclusion that the respondent’s general right to procedural fairness has been restricted . (Emphasis added) [ 70 ] I would make one last point concerning Knight.

In Dunsmuir , the Supreme Court restricted the scope of the duty of fairness in many employment contexts. Justices Bastarache and Lebel found that “[t]he principles expressed in Knight in relation to the general duty of fairness owed by public authorities when making decisions that affect the rights, privileges or interests of individuals are valid and important” (at para 114), but, to the extent that Knight ignored the important effect of a contract of employment, it should not be followed.

However, Bastarache and Lebel JJ. went on to recognize that there remained situations where a public law duty of fairness will still apply. As I have noted, the Board concedes that this case involved one such situation. [ 71 ] Together, Barrett, Collins and Knight answer the Board’s argument that the grant of an express right to a show cause hearing means “that the Legislature did not intend for a board to hear submissions from a teacher prior to forming the intention referred to in subsection 215(1) of the Act ”. As the Chambers judge found, Mr.

Oberg 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. e. The Board’s case law [ 72 ] The Board relies on Kuny v College of Registered Nurses of Manitoba , 2017 MBCA 111 , [2018] 3 WWR 101 [ Kuny ] , and Ouellette v Saint-André , 2013 NBCA 21 , 402 NBR (2d) 228 [ Ouellette ], as supporting its submission that Mr. Oberg should have no, or few, procedural rights in connection with the investigation.

However, both decisions are distinguishable. [ 73 ] Kuny involved an appeal by a registered nurse from a finding of professional misconduct made by his professional regulator’s discipline committee. Among Mr. Kuny’s complaints was that the lack of disclosure provided by the regulator during the investigation was a breach of procedural fairness. The Manitoba Court of Appeal was satisfied that it was enough for him to have received the “substance, but not necessarily all of the details of the allegations so that he could meaningfully respond to the allegations” (at para 49).

Justice Steel expanded on this statement later in her judgment: [68] An analysis of the statute and the entire context of the facts of this case indicates that there is a reduced duty of fairness that applies to an investigatory body as opposed to a disciplinary body. The duty of fairness at the investigation stage requires the disclosure of the substance of the allegations such that the member will be able to respond to the allegations in a meaningful way.

Disclosure of evidence and all of the details are not required at this stage, and the manner by which the disclosure of the substance of the allegations is made (whether orally or in writing) falls within the discretion of the investigatory body. In this case, [the investigator] acted as an arm of the [investigation committee] and will be subject to the same duty of fairness as the [investigation committee] itself. [ 74 ] It is important to understand the context in which this statement was made.

In Kuny , the investigators could “direct that the matter be referred to the Discipline Committee [for a hearing on the merits], direct no further action, or accept the member’s submission to other sanctions or rehabilitative steps” (at para 40). Therefore, they were “simply investigating the complaint, not adjudicating it” (at para 45).

Even in this context, the responding party was entitled to meaningful disclosure: [49] Consequently, an application of the Baker factors leads to the conclusion that in this case, Kuny was entitled to disclosure of the substance, but not necessarily all of the details of the allegations so that he could meaningfully respond to the allegations.

Furthermore, how the [investigation committee] and [the investigator] decided to disclose the substance of the allegations to Kuny (orally) should be afforded deference, as long as Kuny was actually made aware of the substance of the allegations to be able to respond in a meaningful way. [ 75 ] In the present case, the duties of the investigators and the results of the investigation stand in contrast to those in Kuny . As I have explained, in the matter at hand, the investigators were tasked with finding the facts upon which the First Decision was based.

[76] Ouellette also does not assist the Board’s position. In that case, a chief administrator of a municipality was terminated based ona statutorily mandated vote of the municipality’s council. The New Brunswick Court of Appeal determined that the duty of proceduralfairness applied, but it was attenuated to ensure that it would “not unduly hamper the effectiveness of Council’s responsibilities toward itscitizens in this and other matters” (at para 24). Justice Bell went on to state the following: [24] … The procedural fairness required in this case must, in my view, be minimal, yet reasonable and efficient.

Those minimalfeatures consist of an opportunity to know the concerns about one’s performance that could lead to termination, and an opportunity toexplain them or demonstrate why they have no merit. Obviously, an appropriate opportunity should be afforded to the office holder tomake the necessary enquiries and prepare a response.

Whether that response is in writing or in person, would no doubt be a matter to bedetermined by the Council. [77] I return to the fundamental principle that “the duty of fairness is flexible and variable, and depends on an appreciation of thecontext of the particular statute and the rights affected” (Baker at para 22).

In Kuny, Justice Steel found the disciplined nurse to be entitledto disclosure of “the substance, but not necessarily all of the details of the allegations so that he could meaningfully respond to theallegations” (at para 49), even though the investigator’s power was limited to referring or recommending charges. She recognized that if“the investigatory body simply has the ability to investigate and report, but not to refer or recommend charges, then the duty of fairnessmay be even more reduced” (at para 22).

In this case, where the practical impact of the investigation goes significantly beyond any of this,it is important that greater procedural fairness be observed. f. Importance of the Decisions [78] The Board also argues that the Chambers judge misapprehended the impact of the Decisions on Mr. Oberg. This is the thirdfactor referred to in Baker. [79] I have already discussed the importance of the First Decision to Mr. Oberg.

At this point, I will discuss the importance of thefinal, overall, Decision to demote him. [80] As Baker recognizes, “[t]he more important the decision is to the lives of those affected and the greater its impact on thatperson or those persons, the more stringent the procedural protections that will be mandated” (at para 25).

Justice L’Heureux-Dubéadopted the statements made by Dickson J. (as he then was) that a “high standard of justice is required when the right to continue in one’sprofession or employment is at stake” and that a “disciplinary suspension can have grave and permanent consequences upon a professionalcareer” (Kane v Board of Governors of the University of British Columbia, (SCC), [1980] 1 SCR 1105 at 1113 [Kane]).Here, the Chambers judge, at paragraph 22, similarly referred to these passages from Kane. She later observed that “the Board’s Decisionssubstantially affected Mr.

Oberg’s employment” and therefore it “goes without saying that the Decisions had a significant impact on hislife. Such impact necessitates a high standard of justice and fairness: Kane at 1113” (at para 28). [81] The Board contends that the Chambers judge “erred in inflating Mr. Oberg’s administrative position as principal to beingequally significant as his more foundational role as teacher”.

The Board supports its submission with reference to the later observationsmade by the Chambers judge that, in “the circumstances of this case, demotion is as serious a penalty as dismissal” and demotion“represents a significant variation to the employee’s contract of employment” (Chambers Decision at para 77). A consideration of thisargument invites a brief examination of the roles and responsibilities of school principals in general and of the impact of the demotion onMr. Oberg personally. [82] As I have noted, a school principal’s duties are added or removed by amending their teaching contract (s. 215(1)).

They aredifferent and more significant than those of a teacher. Principals are “responsible for the general organization, administration andsupervision of the school, its program and professional staff and for administrative functions that pertain to liaison between the school andthe board of education” (s. 175(1)). Section 175(2) contains a lengthy list of specific obligations falling on a principal. These includeresponsibilities that pertain to the organization of the program of instruction (s. 175(2)(a)), the organization and professional developmentof professional staff (ss. 175(2)(

b) and (f)), the supervision of non-teaching staff (ss. 175(2)(

c) and (d)), the “general supervision over thewell-being and good order of pupils” (s. 175(2)(e)) and cooperation with universities in programs for the education and training of teachers(s. 175(2)(g)). [83] Because of all of this, principals are paid more than teachers. Mr. Oberg suffered a salary loss of approximately $40,000 perannum when he was demoted. Principals also enjoy greater benefits than do teachers, such as increased pension entitlements. Principalsoften have training beyond that which is required to be a teacher. In this regard, Mr.

Oberg obtained a Masters in Education in EducationalAdministration, a credential directly relevant to his pursuit of an administrative position. [84] According to Mr. Oberg, the demotion caused him to suffer adverse health effects and damaged his reputation in the mid-sizecommunity in which he taught for years and continues to live. None of this evidence was challenged by the Board. [85] Finally, it is helpful to recall that Mr.

Oberg had been in an administrative position, as principal or vice-principal, since 1997.While, after his demotion, he continued as a Board employee, in a very real sense he was fired from the type of position he had occupiedfor the last 20 of his 27 years as an education professional. [86] For all these reasons, I do not hesitate to conclude that Mr. Oberg’s demotion had “grave and permanent consequences upon[his] professional career” (Kane at 1113). In these overall circumstances, the Chambers judge’s conclusion that Mr.

Oberg’s “demotion isas serious a penalty as dismissal” (at para 77), may have been a slight overstatement, but was not materially off the mark. The impact ofthe demotion was manifest and significant. This impact was appropriately considered by the Chambers judge as attracting the need forsignificant procedural protections. g. The SPTRB settlement [87] The Board attaches significance to the fact that Mr. Oberg admitted professional wrongdoing in his settlement of the SPTRB

complaint. It argues that the “essential facts he admitted to in May 2019 are substantially the same as those found by the Board in December 2017”. From this, it seeks to draw two conclusions. The first is that Mr. Oberg could not have been prejudiced by the lack of notice and disclosure in the investigation. The second is that the “outcome and findings of the SPTRB proceedings support the Board’s decision that Mr. Oberg’s conduct fell below the standard expected of a principal and role model for students”. I cannot agree on either point. [ 88 ] The SPTRB proceedings all occurred well after Mr.

Oberg’s demotion was made final. Those proceedings could do nothing to cure the deficiencies in the notice and disclosure leading up to either the First or Second Decision. [ 89 ] Substantively, as well, the admissions contained in the SPTRB resolution agreement were much more limited than the “facts” found by the Board’s investigators. There were additional, contested particulars and allegations before the investigators and the Board, but not made known to Mr. Oberg, that went beyond the facts admitted in the SPTRB proceedings.

Conversely, the SPTRB Investigation Report contained information not found in the Board’s Investigation Report. The SPTRB Investigation Report was both more detailed and a more nuanced presentation of events, and generally more supportive of Mr. Oberg’s positions. [ 90 ] Finally, given the absence of reasons by the Board, it cannot be said that the outcome and findings of the SPTRB proceedings support the Board’s own decision. [ 91 ] Based on all of this, I agree with Mr.

Oberg’s submission that the “only relevance of the SPTRB proceedings to this appeal is that the decision of the SPTRB provides insight as to a proportionate and reasonable response to the Incident”. h. The Chambers judge’s specific finding [ 92 ] It is useful to return to the specific breaches of the duty of procedural fairness found by the Chambers judge in relation to the investigation. [ 93 ] The Chambers judge accepted that the investigators had “put specific allegations to Mr.

Oberg respecting his meeting with the community coach on September 19, 2017”, which she described as “appropriate and procedurally fair”. The Chambers judge nonetheless held that in other respects the particulars provided to him were insufficient. She introduced her discussion leading to this conclusion by stating that “specifics needed to be provided for each and every allegation that [the] investigators ultimately relied upon to support their conclusions” (at para 44). [ 94 ] The Board argues that the Chambers judge imposed an unrealistic and unforgiving standard of disclosure.

I do not interpret the Chambers Decision in this way. Instead, when read in context, I interpret the Chambers judge to have found that fairness required that Mr. Oberg be afforded the opportunity to reply to any material act, omission or incident the investigators might rely upon to support their conclusions. This is the substance of her statement that Mr.

Oberg was entitled to “a fair opportunity, meaning a thorough and complete opportunity, to respond to those allegations during the investigation” (at para 42), and that “specifics needed to be provided for each and every allegation that [the] investigators ultimately relied upon to support their conclusion” (at para 44). [ 95 ] The Chambers judge illustrated what she meant by these statements, and the deficit which existed in the opportunity Mr. Oberg was given to respond, by giving examples: [45] For example, the Investigation Report provides a

summary of findings. I have reviewed these findings and have identified several key incidents where findings of fact were made and the investigators came to a determination of misconduct based on those facts, but the facts relied upon were not expressly put to Mr. Oberg. For example, the investigators found that Mr. Oberg spoke aggressively to the community coach in public, saying: “... you just don’t get it”; “This is your last game, enjoy it”, and “Enjoy this game it will be your last one”. They also found that Mr.

Oberg was “visibly angry and upset” at a volleyball tournament, had yelled at the community coach, and that she felt “bullied” by him. The investigators found that Mr. Oberg told the coach that she would be dismissed if his daughter was not played for the entire match. They also found that Mr. Oberg told a parent: “You better watch yourself”. There are other examples throughout the Investigation Report, but I need not identify every one. Finally, investigators provided quotations from a conversation between Mr. Oberg, students and parents on October 20, 2017, stating that the conversation was a “general

summary of the meeting compiled through interview sources.” However, there is no evidence that these findings or the “summary” of the meeting, were put directly to Mr. Oberg for his response. [ 96 ] The Chambers judge also found that, for some allegations, Mr. Oberg was afforded no chance to reply. In this regard she noted as follows: [47] Significantly, the investigators concluded that Mr. Oberg had engaged in bullying or harassment, contrary to the Board’s policies. Mr. Oberg asserts that it was never put to him that he had harassed or bullied a student or other person in his role as principal.

Again, from my review of the record, there is no evidence to support that this allegation was put directly to Mr. Oberg – as it needed to be. [ 97 ] Further, because the particulars given were general in nature, Mr. Oberg was unable to appreciate the subtleties of some of the allegations or to provide information to address the character or seriousness of the alleged misconduct. Simply put, what appears black in one light becomes grey in another. The generality with which the investigators approached their interview of Mr.

Oberg deprived him of the opportunity to present his case to them before they completed their report. This insight is the context for the statement made by the Chambers judge that, given that the Investigation Report “contained findings of fact consisting of quotations and reconstructed conversations, this was an appropriate case to re-interview Mr.

Oberg after a draft of the Investigation Report was complete in order to give him a fair opportunity to respond” (at para 48). [ 98 ] The Board argues that it will impede the good and efficient administration of school boards if investigators in situations like this are compelled to conduct another interview and put specifics of proposed factual findings to an employee in Mr. Oberg’s situation. However, when asked in oral argument what practical impediments would have arisen if Mr.

Oberg had been provided with better particulars of the allegations against him, or even a draft of the Investigation Report before it was finalized, the only response given was that it might have caused some delay. I am unconvinced by this reply in a context where a professional career is at stake.

[99] The Chambers Decision also does not, as the Board suggests, hamstring a school board when making decisions related to itsadministrative needs or seriously impact the “effectiveness of its responsibilities to ensure good governance of public schools inSaskatchewan”. Specifically, the Chambers judge did not hold, nor do I intend in these reasons to suggest, that a school board can onlyremove a principal’s responsibilities for cause. The Chambers judge specifically recognized that the Act “contemplates that Mr.

Oberg’scontract could be amended to remove his principal duties with notice”, but that “just cause is required to remove those duties withoutnotice” (at para 77). This conclusion is well-supported by the Act. Section 215(2) directs that “[a]ny notice given by the board ofeducation or the conseil scolaire pursuant to subsection (1) must be given in accordance with clause 210(1)(b), (

c) or (d)”. Sections 210(1)(b), (

c) and (

d) import specific notice requirements, which afford the Board with significant discretion when dealing with redundancies,reorganizations and so on. In contrast, s. 210(1)(

a) deals with the immediate suspension or dismissal of a teacher for cause. [100] Because of s. 215, whenever a principal’s duties are removed, the principal must be afforded an opportunity to appear before theBoard to show cause why this should not occur. However, when this is done for administrative reasons, such as for a reorganization, theshow cause hearing would be limited to an inquiry into such reasons. Even in that context, however, the show cause process is notnecessarily without meaning or purpose.

It may be that a principal whose duties are removed for administrative reasons will have nothingto say to the Board. However, the contrary may also be true. The Board may find that its final decision is informed by the principal’srepresentations.

As explained by Laskin C.J. in Nicholson v Haldimand-Norfolk Regional Police Commissioners, (SCC),[1979] 1 SCR 311 at 328 [Nicholson], the decision-maker itself “would wish to be certain that it had not made a mistake in some fact orcircumstance which it deemed relevant to its determination”. [101] The focus of Laskin C.J.’s statement was on the interests of the decision-maker in receiving complete information before adecision is made. There is also a broader public interest at stake, relating to the purpose for the statutory discretion itself.

In Knight,L’Heureux-Dubé J. observed that “fairness dictates that the administrative body making the decision be cognizant of all relevantcircumstances surrounding the employment and its termination” (at 674, citing to Nicholson at 328).

Later, she spoke of the “wider publicpolicy argument militating in favour of the imposition of a duty to act fairly on administrative bodies making decisions similar to the oneimpugned in the case at bar” and the interest the public has “in the proper use of delegated power by administrative bodies” (at 675). [102] Ultimately, the Board’s argument that the efficient administration of schools will be frustrated by a procedurally fair investigationand show cause hearing is premised on the Board being required to choose between an unfair process and one that is efficient. The choicethe Board presents is a false one.

Good or efficient administration is not served by following unsound processes that do not allow forconflicting voices to be heard. Rather, the contrary is a more likely result if unfair processes are adopted. i. Conclusion respecting breaches of the duty of procedural fairness in the investigation [103] In

summary, the Board submits that the Chambers judge “failed to consider” that the opportunity Mr. Oberg would have had toparticipate in a show cause hearing meant that he was entitled to a minimal level of procedural fairness during the investigation leading tothe First Decision and principles of fairness did “not require the same processes as a formal hearing”. However, the aspects of proceduralfairness the Chambers judge imported into the Board’s investigative process were no more than were necessary to afford Mr.

Oberg witha meaningful opportunity to know the case he had to meet and to present his case to those responsible for laying the facts before the Boardwhen making the First Decision. The Chambers judge did not err in her conclusion that the investigation was not procedurally fair. [104] The Chambers judge also did not, in any way, equate the process of a show cause hearing with that afforded to teachers under theboard of reference procedure.

To the contrary, she recognized a limited, yet important, set of procedural safeguards that fit comfortablywithin the much more limited show cause procedure contemplated by s. 215 of the Act. 3. Failure to provide adequate reasons for the Second Decision [105] The Board gave no reasons for either the First or Second Decision. Initially, Mr. Oberg challenged both Decisions on this basis.Mr. Oberg conceded to the Chambers judge that “it could be inferred that the Board’s reasons for its First Decision are contained in theInvestigation Report” (at para 52).

The Chambers judge agreed that it was “clear that the Board adopted the four central conclusions ofthe Investigation Report and relied on its findings of fact”. Therefore, she concluded that, because Mr. Oberg was given a copy of theInvestigation Report, “which provided him with sufficient reasons to prepare a meaningful response”, the “duty of procedural fairness wasmet at this step” (at para 56). However, the Chambers judge found that “the Board’s failure to provide reasons for the Second Decision …breached the duty of procedural fairness it owed to Mr.

Oberg” (at para 50). [106] It is now past question that, as noted in Baker, “in certain circumstances, the duty of procedural fairness will require the provisionof a written explanation for a decision”.

Justice L’Heureux-Dubé continued this line of thinking by noting that the “strong argumentsdemonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for theindividual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required” (at para 43). [107] Casavant v Professional Ethics Committee of the Saskatchewan Teachers’ Federation, 2005 SKCA 52, [2005] 6 WWR 31, andEuston Capital Corp. v Saskatchewan Financial Services Commission, 2008 SKCA 22, 307 Sask R 100, are decisions that link the needfor reasons to the ability to conduct meaningful appellate review.

Moreover, broader interests underlie the need for reasons in many cases.These interests include the legitimization of decisions to the parties and the public generally, the promotion of better decisions andshielding against the arbitrary exercise of power. All of this was well-explained in Canada (Minister of Citizenship and Immigration) vVavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov]: [79] Notwithstanding the important differences between the administrative context and the judicial context, reasons generally servemany of the same purposes in the former as in the latter: R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15 and 22-23.Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered anddemonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception ofarbitrariness in the exercise of public power: [Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004SCC 48, [2004] 2 SCR 650], at paras. 12-13.

As L’Heureux-Dubé J. noted in Baker, “[t]hose affected may be more likely to feel they weretreated fairly and appropriately if reasons are given”: para. 39, citing S.A. de Smith, J. Jowell and Lord Woolf, Judicial Review of

Administrative Action (5th ed. 1995), at pp. 459-60. And as Jocelyn Stacey and the Hon. Alice Woolley persuasively write, “public decisions gain their democratic and legal authority through a process of public justification” which includes reasons “that justify [the] decisions [of public decision makers] in light o

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