Executive Summary: Key Legal and Evidentiary Issues

• Classification of the application under s 92(1) of the Education Act as a statutory appeal rather than a judicial review.

• The Board’s legal authority to mandate an “appropriate” apology and whether that constitutes compelled, unenforceable speech.

• Absence of objectively measurable standards for compliance with the apology requirement, making the sanction legally flawed.

• Lack of specific factual findings by the Board regarding the alleged inappropriate comments used to justify disqualification.

• Whether the Board’s disqualification decision complied with progressive discipline and was proportionate to Mr. Dion’s conduct.

• Judicial finding that the disqualification was unjust, disproportionate, and excessive given the record and comparator cases.

Facts and procedural background

Mr. Moïse Dion was elected as a trustee for the Peace River School Division for the 2021–2025 term. In September 2024, the Board of Trustees passed a resolution disqualifying Mr. Dion from remaining as a trustee under section 91(a) of the Education Act, following two breaches of its Trustee Code of Conduct. Mr. Dion filed an originating application under section 92(1) seeking to be declared qualified to remain as trustee.

The first breach occurred in September 2023 when Mr. Dion sent an email to the Board Secretary-Treasurer, copying all trustees and the Superintendent. The Board concluded that the email constituted personal harassment and imposed seven sanctions on December 22, 2023, by Motion 15747. One key sanction required Mr. Dion to participate in mediation and cause for a positive report to be issued. In its January 4, 2024 letter, the Board warned that any further violations would lead to disqualification.

In June 2024, Mr. Dion participated in mediation with the Secretary-Treasurer. During the process, he was told he needed to provide written acceptance of the investigative report, support the related motions, and deliver an unequivocal apology. On August 23, 2024, Mr. Dion submitted an apology letter. On September 19, the Secretary-Treasurer rejected it, stating it lacked “sincere remorse.” The Board maintained that Mr. Dion had not “purged” the first sanctions to its satisfaction.

The second breach took place during a May 28, 2024 Board meeting, where Mr. Dion made comments directed at the Deputy Superintendent. On June 20, 2024, the Board passed Motion 15862, determining that Mr. Dion engaged in “discreditable conduct” and issued remedial actions requiring an “appropriate” written and in-person apology. Mr. Dion requested clarification of the allegations and permission to have legal counsel present. Lacking those, he declined to participate in the meeting. The meeting did not take place, and the Board subsequently declared him disqualified on September 26, 2024.

Interpretation of the Education Act and standard of review

The Court was asked to determine whether applications under section 92(1) are statutory appeals or judicial reviews. Justice Funk concluded that they are statutory appeals, citing procedural differences, the structure of the Act, and the use of “appeal” in the section heading. Consequently, appellate standards applied: correctness for legal questions and palpable and overriding error for factual or mixed questions.

Policy terms and code of conduct clauses at issue

Two versions of Board Policy 4 (Trustee Code of Conduct) governed the sanctions. The earlier version, applicable to the first incident, authorized sanctions including removal from committees and censure. The second version, applicable to the second breach, introduced “Remedial Action” provisions allowing the Board to require apologies and impose broader sanctions, including disqualification.

The June 20, 2024 motion specifically required Mr. Dion to issue an “appropriate” apology to the employee, both in writing and in person, with Vice-Chair Buchinski attending as an observer and reporting back to the Board.

Court’s analysis and findings

Justice Funk found the Board committed two main errors of law.

First, although the Board had authority to require an apology, requiring an “appropriate” apology was unlawful. The Court found the term lacked an objectively measurable standard. Mr. Dion’s apology letter, which acknowledged harm and expressed commitment to future improvement, met objective criteria for an apology. Yet the Board rejected it based solely on the recipient’s subjective dissatisfaction, demonstrating the standard was effectively one of “genuine remorse,” not “appropriateness.” As in LaGrange v Red Deer Catholic Separate School Division, 2024 ABKB 665, such subjective qualifiers are unenforceable.

Second, the Board failed to make specific findings of fact regarding the comments made during the May 28, 2024 meeting. The minutes contained no record of what was said, and affidavits filed gave inconsistent accounts. Despite this, the Board found Mr. Dion in breach and imposed the most serious penalty—disqualification. Justice Funk emphasized that without factual findings, the Board could not assess whether the disqualification was a fit and proportionate penalty.

The Court compared the case to Del Grande v Toronto Catholic District School Board, where serious offensive remarks did not lead to disqualification, and LaGrange v Red Deer Catholic Separate School Division, where disqualification followed repeated non-compliance. Justice Funk found Mr. Dion’s conduct less serious and his efforts to comply (including mediation and apology) indicative of good faith. Disqualification was thus excessive.

Outcome

Justice Funk allowed Mr. Dion’s appeal. Pursuant to section 92(4) of the Education Act, Mr. Dion was declared qualified to remain as trustee and must be reinstated for any unexpired portion of his elected term. If someone else has filled the vacancy, they must vacate the office. The Board must repay Mr. Dion any honorarium or salary withheld during his disqualification. He was also awarded costs of the appeal, with written submissions permitted if the parties cannot agree.

The exact monetary value of the repayment and costs is not quantified in the decision but is explicitly granted subject to later calculation or agreement.