A principal’s isolated misconduct did not justify a demotion

Administrative law – Decisions reviewed – School boards – Judicial review – Appeals – Procedural requirements and fairness – Legislative compliance – Failure to provide reasons – Standard of review – Correctness – Teachers – Professional misconduct or conduct unbecoming – Disciplinary proceedings

Oberg v. Saskatchewan Board of Education of the South East Cornerstone School Division No. 209, [2021] S.J. No. 77, 2021 SKCA 28, Saskatchewan Court of Appeal, February 22, 2021, J.A. Ryan-Froslie, L.M. Schwann and R. Leurer JJ.A.

The respondent, Mr. Oberg, was first a teacher and then later became a school administrator.  Mr. Oberg did not have any history of misconduct in his personnel file.  He was employed for 25 years by the appellant, the Board of Education of the South East Cornerstone Public School Division No. 209 of Saskatchewan (the “Board”).

In 2008, Mr. Oberg took on the role of principal at Weyburn Comprehensive High School (“WCHS”).  Throughout his career, Mr. Oberg coached various school teams on a volunteer basis.  In 2017, he was assistant coach of the WCHS senior girls’ volleyball team, and the manager.  His daughter was a member of the team during this time.

There was a conflict between Mr. Oberg and the head coach of the team.  The source of conflict was Mr. Oberg’s daughter’s role on the team.  The conflict played out in a few areas.  One was in a coaches’ meeting in September 2017.  Another was at a tournament on October 20, 2017.  At the tournament, Mr. Oberg attempted to substitute his daughter into play and the head coach intervened to stop the substitution.  Mr. Oberg then told the head coach that he had enough, and this was her last game as head coach.  One of the parents reported a concern to a senior administrator of the school and an investigation was initiated the following day.

The investigators interviewed Mr. Oberg on the first day and then told him he was not allowed to communicate with anyone involved.  The investigators then proceeded to interview several of the team members, parents, and the head coach.  The investigators then interviewed Mr. Oberg again on October 30th.

On November 1, 2017, the investigators delivered their report recommending that Mr. Oberg be demoted from his role as principal because he used his authority as principal in an inappropriate manner, demonstrated significant lapses in judgment, failed to conduct himself in a manner befitting a role model for students, and his conduct damaged the school’s reputation.  The Board adopted the recommendations and notified Mr. Oberg that he was allowed a chance to argue why he should not be demoted (the “First Decision”).

Mr. Oberg attended a meeting of the Board and provided arguments to oppose the demotion.  The Board decided to uphold its earlier motion (the “Second Decision”).

Mr. Oberg made an application for judicial review.  He argued the Board breached his rights to procedural fairness and justice during the investigation.  He also alleged the demotion was disproportionate to the conduct when considering his exemplary record.

The Chambers judge found the Board breached its duty of procedural fairness in three ways.  First, the Board failed to provide sufficient particulars of the allegations against him during the investigation.  Second, the Board failed to provide a fair opportunity to be heard during the investigation.  Third, the board failed to provide reasons for the Second Decision.  The Chambers judge held the Decisions were void ab initio and the penalty imposed was unreasonable.  The Chambers judge ordered Mr. Oberg to be reinstated.

The Court of Appeal considered four questions.

Did the Chambers judge erred in concluding the Board breached its duty of procedural fairness to Mr. Oberg?

The Court of Appeal carefully considered the factors from Baker v. Canada and concluded the Chambers judge did not err in her conclusion that the investigation was procedurally unfair.

Did the Chambers judge err in determining the Board’s breaches of its duty of procedural fairness rendered the Decisions void ab initio?

The Court of Appeal agreed with the Chambers judge because the breaches of procedural fairness affected the substantive outcome of the Decisions.

Did the Chambers judge err in concluding the Board’s decision to demote Mr. Oberg was unreasonable?

The Court of Appeal agreed with the Chambers judge’s decision that the Board’s decision to demote Mr. Oberg was unreasonable.  For example, the Court of Appeal agreed it was appropriate for the Chambers judge to consider the application of employment law principles when assessing the application of the statutory scheme.

If the Board’s process was procedurally unfair, or the demotion was unreasonable, what remedy is appropriate?

The Court of Appeal agreed it was appropriate for the Chambers judge to order reinstatement because, in this unique circumstance, no useful purpose would be served by remitting the matter to the Board.  The legislation only allowed the Board to remove Mr. Oberg’s duties as principal or retain those duties.

The Court of Appeal dismissed the Board’s appeal and ordered the Board to pay costs to Mr. Oberg.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

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