On May 1st, 2023, the Divisional Court released its decision in Gillies v Bluewater District School Board, 2023 ONSC 1625, a case that considered the Bluewater District School Board’s decision to prohibit a public delegation due to offensive content contained in the proposed presentation. It’s a timely topic, as contentious meetings of school boards, municipal councils, and other local boards continue to make the news in Canada and abroad. The case shines a helpful light on when and how public administrative bodies like school boards can place limits on public delegations due to concerns about content. 

Facts of the Case

In April, 2019, Ann Gillies wrote to the Bluewater District School Board asking to speak on the topic of Pride Flags at its May 21st meeting. Gillies later provided a copy of her intended presentation; excerpts reproduced in the Court’s decision largely centre around her views on the Trans community.  Board staff responded denied the request to speak, on the basis of Board policies, but did offer to circulate the presentation to trustees. When pressed as to its reasons for denying the request, the Board advised that its decision was based on its human rights policy, mission statement, and priority statement. 

Summary of the Decision

Gillies sought judicial review of the Board’s decision on two bases: first, whether the Board had provided sufficient reasons for its decision, and second, whether the Board had failed to balance the infringement of her right to freedom of expression against the Board’s objective and policies.

With regards to sufficiency of the Board’s reasons, the Court first found that, in this situation, written reasons were not required. Factors leading to this conclusion included that Ms. Gillies had no right to make a delegation, that the Board’s by-laws did not include a right to reasons, and the lack of adverse impact on Ms. Gillies as a result of the decision. Nonetheless, the Board had, in fact, provided reasons, citing various policies, by-laws, and statutes. It found that there was “no difficulty in understanding the reasoning process that led to the decision that was made”.

Concerning Charter rights, the Board acknowledged that the decision not to allow her delegation infringed Ms. Gillies’ right to expression. However, it argued, and the Court agreed, that it had properly balanced that right against the policies and laws it felt weighed against allowing the delegation. This requirement to weigh competing interests is known as the Doré/Loyla test, after the two Supreme Court decisions it comes from, and applies any time a decision maker infringes on free expression. Notably, the Court found that providing Ms. Gillies the option to circulate her intended presentation to trustees was a factor in this balancing exercise, and minimized the impact on Charter rights.

Takeaways

Broadly speaking, the takeaways from Gillies are the same as those we addressed last year when discussing Guelph and Area Right to Life: municipalities and public boards can step in to prohibit content seen as inappropriate on bases like discrimination, but they must follow the correct steps in doing so. 

In the context of whether to allow a speaker or delegation at a public meeting, the key takeaway is understanding that a refusal will likely infringe that person or group’s freedom of expression. Both Gillies and Guelph make it clear, however, that such an infringement might still be permitted, as long as the appropriate weighing exercise is conducted. What Gillies adds to that analysis is that offering individuals alternative ways to present their message to the municipality or board can minimize the infringement on freedom of expression, and play a role in the Doré/Loyola analysis. 

A word of caution, however, when it comes to whether to provide written reasons for such a decision. Although the Court in Gillies  did find written reasons were not required, that decision is context-specific, and depends on a number of factors. Municipal decision makers in particular should avoid presuming that written reasons will not be required in any particular circumstances. Well-written and well-crafted reasons are likely to be the safest route in most cases. 

As always, it is best to consult a lawyer on topics such as Charter rights or the sufficiency of reasons provided in a decision making context.