Two Greater Victoria School District trustees who were suspended following complaints of bullying and harassment have filed petitions with the B.C. Supreme Court.
Diane McNally and Rob Paynter each filed separate petitions with the court.
CHEK News obtained a copy of Paynter’s petition through BC Court Services Online. A copy of McNally’s had not yet been uploaded to the database at the time of publishing.
In the petition, Paynter, represented by Nicholas Vaartnou of Farris LLP, argues that the school board does not have the authority to suspend an elected trustee.
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The School Act outlines several instances where a trustee may be removed from office, including if they fail to make an oath or affirmation of office, continuously absent from board meetings, commit an election offence, maintain status as a school district employee, are convicted for an indictable offence, or vote in matters where they are found to have a pecuniary interest.
However, Vaartnou argues the act does not explicitly state that a school board may remove a trustee from office, and case law indicates a school board only possesses powers explicitly outlined in its governing statute.
If the case law is to be followed, Vaartnou says that would mean the school board is not allowed to remove a trustee since it is not explicitly stated in the School Act that is a power the board has.
In the petition, there are many cases where local or regional governments have been allowed by courts to censure elected officials, and Vaartnou notes Paynter does not dispute the board’s ability to censure him only the ability to suspend him from his position.
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“In conclusion, a substantive review of the School Act and the Resolution makes clear that the Board is attempting to sanction a trustee in a manner outside of its authority,” the petition says. “While there is absence of jurisprudence regarding a school board’s authority to govern its own processes, case law from analogous circumstances establish that a representative body does not have the implied authority to suspend or remove a member of its body where that power is expressly set out in governing legislation or regulations.”
In the event that the Supreme Court finds the board has the authority to suspend Paynter, Vaartnou argues the decision is unreasonable.
The petition says the chair of the board in a letter said the suspension was due to a “continued refusal” to comply with his duties and having a “general history” of misconduct. Paynter says he only received one warning about his behaviour, and never received graduated discipline, so the choice to go straight to suspension is unreasonable.
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“[T]o the extent that the Board has a suspension power, the suspension of an elected official should be an extraordinary remedy which should only be implemented as a measure of last resort,” the petition says. “In this case however, the Board decided to suspend a trustee who had no record of disciplinary conduct prior to the events leading the the Resolution and who has acknowledged and taken responsibility for his actions.”
In an open letter addressing the suspensions, Ryan Painter, chair of the school board said the decision to suspend the two were consistent with the board’s obligations under the Workers Compensation Act and Freedom of Information and Protection of Privacy Act.
Painter says the obligations include taking all steps necessary to create a workplace free of bullying and harassment, the board not publicly humiliate employees, and the board acts as a whole.
The letter says McNally had previously been censured by the board on March 2, 2020 for disclosing a confidential report, and that a public apology was made to the superintendent who resigned due in part of comments made by Paynter and McNally.
Laura Brougham
