Executive Summary: Key Legal and Evidentiary Issues

• Dispute centers on whether an in-camera school board vote ever ripened into a reviewable “decision” under s. 218.3(11) of the Education Act.
• Timing and clarity of the Board’s communications about moving (or not moving) an in-camera decision into a public vote are pivotal to the costs outcome.
• The Applicant trustee’s need for timely judicial clarification before an upcoming election informs whether it was reasonable for her to commence judicial review.
• Course-of-conduct evidence, including six prior instances where in-camera votes were followed by public votes, supports the Applicant’s belief that a public decision was imminent.
• The Board’s choice to frame the preliminary objection as “prematurity” rather than “mootness,” and its late confirmation that no public vote would occur, is treated as significant litigation behaviour for costs.
• Despite technical success on the preliminary issue, the Board is ordered to pay $10,000 in costs because its conduct effectively forced the Applicant to incur unnecessary legal expense.

Background and parties
The case arises from a governance dispute within the Grand Erie District School Board involving trustee Carol Ann Sloat. Ms. Sloat, an elected trustee, brought an application for judicial review challenging an in-camera decision of the Board dated November 4, 2024, as well as a related sanction decision and a subsequent appeal decision dated November 25, 2024. These decisions concerned alleged breaches of the Board’s Code of Conduct under the Education Act and the procedures by which the Board deals with trustee conduct in closed and public sessions.

Facts leading to the application
Historically, when the Board deliberated in-camera on matters involving Ms. Sloat, those votes were subsequently brought to a public vote; in the six prior in-camera votes concerning her, the Board followed that pattern of moving to a public session. Against this backdrop, the November 4, 2024 in-camera decision was treated by Ms. Sloat as the first step in a sequence that would culminate in a public vote and, potentially, public sanctions. Because the Education Act requires that any final trustee sanction decision be made in public under s. 218.3(11), Ms. Sloat anticipated that the in-camera decision would be carried forward into an open session.
Timing was critical for the Applicant. This was an election year, with the election scheduled for May. She was concerned that if she awaited a public vote before commencing proceedings, there might not be enough time for the court to hear and determine the matter, leaving unresolved questions about her status and reputation going into the campaign period. In that context, she brought an application for judicial review challenging the Board’s handling of the Code of Conduct process and the decisions taken in-camera and on appeal.

Preliminary issue and agreement before the court
In its factum and at the outset of the hearing before the Divisional Court, the Board raised a preliminary objection: it argued that the application was premature because there was, in law, no final decision to review. The Board’s position was that the in-camera vote had never been translated into a public decision as required by s. 218.3(11) of the Education Act, and that no sanctions had been, or would be, imposed absent a public vote. In substance, the Board argued there was no operative “decision” within the meaning of the statute for the court to scrutinize.
During the hearing, the parties reached an agreement that resolved the core controversy but left the question of costs outstanding. They agreed and the Board stipulated that (a) no decision had been made under the Education Act; and (b) the matter, which had only ever existed in-camera, would not be brought into a public session. As a result, there would be no decision of the Board under s. 218.3(11). The practical effect of this agreement was to eliminate any risk that the in-camera findings would be formalized as a public Code of Conduct decision against Ms. Sloat.

Costs arguments from both sides
Although the Board had effectively succeeded on its preliminary point that there was no reviewable statutory decision, the Applicant sought her costs of the proceeding. She argued that at no time prior to oral submissions had the Board clearly communicated that it would not move the in-camera vote to a public vote. Given the Board’s past practice of doing so on six prior occasions, she had no reason to assume that this matter would be treated differently. With an election looming and unresolved findings hanging over her, she considered it necessary and reasonable to pursue judicial review to clarify her legal position in advance.
The Applicant also pointed to her early written communication to the Board’s counsel, where she insisted that the Board should determine within 14 days of the in-camera vote whether the matter would proceed to a public vote. In response, the Board’s communications were characterized as “vague and non-committal,” suggesting only that the public vote was being deferred, rather than abandoned. From the Applicant’s perspective, this left her with no assurance that the in-camera decision would not resurface later in a public form.
The Board, for its part, argued that there should be no costs order. It stressed that it had been successful on the preliminary issue because no final Education Act decision existed. It also submitted that, after other court decisions had set aside previous findings against Ms. Sloat, it had decided to follow the court’s suggestion to stop pursuing her and had no intention of moving to a public vote in any event. In its view, the application should be seen as unnecessary and the parties should bear their own costs.

Court’s reasoning on costs and outcome
Justice Shore, writing for the Divisional Court panel, concluded that the Applicant was entitled to her costs notwithstanding the Board’s technical success on the preliminary point. The court emphasized that, by the time the Board formally raised “prematurity” in its written materials, the Applicant had already incurred most of her legal expenses. Crucially, it was only during oral submissions that the Board clearly confirmed it would not proceed with a public vote, thereby extinguishing the risk of a formal adverse decision under s. 218.3(11) of the Education Act. Up to that penultimate moment, the Applicant was left without definitive assurance and reasonably felt she had no choice but to forge ahead with the application, particularly in light of the impending election and the Board’s prior pattern of publicizing in-camera decisions.
The court was critical of the Board’s litigation conduct in two respects. First, it could have advised the Applicant much earlier that no public vote would be brought, but chose instead to communicate only that the vote was being deferred. Second, if the Board had truly decided that it would not proceed with a public vote, the appropriate framing would have been to argue that the application was moot, not merely premature. The combination of late clarification and the chosen litigation strategy led the court to characterize the Board’s behaviour as warranting a costs order in the Applicant’s favour. In the end, on consent and consistent with the parties’ position at the outset of the hearing, the Divisional Court ordered: (a) there has been no decision finding that Ms. Sloat breached the Code of Conduct under the Education Act; (b) the Grand Erie District School Board shall not put its in-camera vote to a public vote and therefore there will be no decision under s. 218.3(11); and (c) the Respondent shall pay costs to the Applicant in the all-inclusive amount of $10,000. This leaves Ms. Sloat as the successful party on costs, with a clear record that no Code of Conduct breach decision exists and a quantified monetary award in her favour.