In September 2023, Ottawa-Carleton District School Board (OCDSB) trustee Dr. Nili Kaplan-Myrth was the subject of a complaint to the board’s integrity commissioner alleging that she violated the board’s code of conduct. The essence of the complaint was that she was “rude, insulting, intimidating and disrespectful of both the board and the rules put in place for decorum at board meetings.”
In particular, the complaint pointed to a heated board meeting earlier that month regarding a previous complaint against Kaplan-Myrth, after which she made what was described by the court as “comments to journalists and on social media that were critical of particular Trustees and/or the Board and its process,” such as allegedly characterizing a fellow trustee as being part of the “far right” and saying online that the board “unfortunately has a toxic pattern of conservative trustees abusing its ‘code of conduct’ process to try to silence progressives.”
Kaplan-Myrth, who was first elected to the board in 2022, is a family doctor who has been an advocate for public health measures in response to the COVID-19 pandemic, which she said has led to “daily antisemitic death threats.”
The board later declared that Kaplan-Myrth violated its code of conduct and suspended her from the next regular board meeting and from board committees for three months, and later rejected her appeal of the sanctions. She then went to court to seek an order quashing the decisions of the board, as well as a declaration that the decisions infringed her Charter right to freedom of expression.
Now a three-judge panel of the Ontario Superior Court’s Divisional Court has rejected her application for judicial review. The court held that the Education Act does limit freedom of expression in that it requires all school board members to comply with a code of conduct. But the court ruled that the board’s decisions “represent a reasonable and proportionate balancing of [Kaplan-Myrth]’s expressive rights” with the Act’s objectives in developing a code.
“[Kaplan-Myrth] has not shown a basis for this court to intervene,” the panel wrote. “The Board has a statutory obligation to enforce a minimum standard of conduct expected of its Trustees and is presumed to have expertise in enforcing that standard. It was entirely consistent with the Education Act for the Board to enforce its Code of Conduct against the Applicant.”
The process that Kaplan-Myrth went through was not structurally unfair to her, the court wrote.
“The Applicant had the opportunity, in her written submissions to the Board, to raise any issues with the Board about the [Integrity Commissioner’s] report and the Applicant has not shown that the Board’s deliberations were wrongly focused on another complaint,” the court wrote. “Further, the basic facts underlying the complaint were not in dispute, nor was the context of the Board decisions.”
The three-judge panel that decided the case consisted of Justices Sharon Shore, David Corbett and Wendy Matheson (Kaplan-Myrth v. Ottawa Carlton District School Board, 2024 ONSC 4280).
David Taylor of Conway Litigation, who represented the board, said the ruling is an important decision about good governance standards.
“It is the third decision from the Divisional Court in recent years that finds that the Charter right to free expression in the context of school board trustees is shaped by the good governance standards set out in the applicable school board's code of conduct, and as required under Ontario's Education Act,” he said.
Taylor also said the decision “stands for the principle, more broadly, that in the good governance context, there is a legitimate interest in ensuring that those who take on the collective responsibility of governance communicate their messages in ways that are consistent with the standards of civility.”
Counsel for Kaplan-Myrth did not reply to requests for comment.
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