On the second day of the judicial review for the two Greater Victoria School Board trustees who were censured and suspended for bullying and harassment, lawyers argued whether the board has the authority to suspend elected officials, and whether the suspension was a reasonable penalty.
School District 61 trustees Diane McNally and Rob Paynter were suspended and censured in February over comments the pair had made online, which an independent investigator, Marcia McNeil, found amounted to harassment and bullying.
McNally and Paynter filed a petition with the B.C. Supreme Court to reverse the suspension.
McNally’s lawyer Eric Pedersen presented on the second day of the hearing, arguing that under the School Act the board does not have the authority to suspend or remove trustees from their positions.
Under the School Act, Pedersen argued, a trustee may be removed following a conviction for an indictable offence, an offence of a conflict of interest, or if the Supreme Court finds an offence committed renders the trustee unsuitable to perform the duties of a trustee.
The removal in these situations may be ordered by the B.C. Supreme Court. The lieutenant general also has the authority to remove an entire board.
Pedersen argued that the act specifically outlines who can issue suspensions or removals and under what circumstances they can issue them, and a board is not granted the powers under the act.
Rodney Sieg, the lawyer representing the school board, argued that trustees are considered employees of the district, and the School Act gives the board authority to remove an employee of the district.
Sieg argued it was under this provision of the School Act that the board approved the removal of the two trustees.
During the arguments, Justice Briana Hardwick noted the question of whether school boards have the authority to remove trustees has not been heard in court prior to this, so there is no case law to refer to.
In the event that the judge finds the board does have the authority to remove trustees, Pedersen argued that the suspension was too harsh of a punishment given the allegations.
Pedersen said powers given to the board which may be more appropriate would be to create standards of conduct, draft a policy statement and take steps to prevent or minimize bullying and harassment incidents.
Sieg argued the actions of McNally and Paynter indicate the pair had no intention to stop their behaviour going forward, and that they felt entitled to continue the behaviour.
He quoted a submission that McNally filed in the bullying and harassment process, where she said “I was elected to a political position, and politics can be rough.”
Sieg also argued Paynter made several comments indicating he felt he was entitled to make public comments about employees of the district.
Paynter’s lawyer presented on the first day of the judicial review.
Sieg is expected to finish his arguments on the third and final day of the hearing on May 6.
Laura Brougham
