Opening Statement



Friday, 29 November 2013

OECTA 's Brock Decision: More Legal Considerations!



Is OECTA PE being disingenuous?

We have another guest blog, a Part 2 if you will, to a former opinion on the legal issues surrounding OECTA Hamilton President Richard Brock's dismissal by the Provincial Discipline Panel [See Here] and the Provincial Executive's response to date [See Here]. Again, considering the fear of speaking openly that's resulted by the example set in silencing Mr. Brock, the writers anonymity will be respected. I would however, ask them to please send me a tag, or nom de plum to add for easier reference.

Procedural Fairness
Members and others have expended a lot of energy questioning the many procedural irregularities surrounding the empanelling of the Discipline Board and believe that a court would overturn the verdict against Richard Brock on this point alone. OECTA's legal counsel, however, told Provincial that these procedural irregularities are not fatal to their case.  How is this possible?

It turns out that courts in the past have ruled that, where associations are concerned, a procedural irregularity can be safely ignored if the outcome would still be the same and there are no compelling reasons for a court to intervene. Compelling reasons include: a result that does not reflect the wishes of the majority; a result that is fundamentally unfair; a result that violates the principles of natural justice; a result that shows bad faith, etc.
The Brock hearing was fundamentally unfair and violated the principles of procedural fairness.  Members have already pointed out the hearing's various deficiencies: accusations not supported by the facts, lack of competence on the part of the hearing panel, real and apparent bias of the people involved in hearing the case, sitting in judgement on their own case, refusing a full defence, and more. Brock's case, to succeed in court, would have to be argued on the totality of the deficiencies of the hearing and not rely on any one part least of all on the irregularity surrounding the empanelling of the Discipline Board.
The members of the Provincial Executive have to be aware of the glaring deficiencies in procedural fairness in the disciplinary process and it is appalling that they have not yet addressed this issue.  Indeed, President Ryan's reply to some members' request to stay the verdict was disingenuous. He replied that no by-law in the Handbook authorizes the P.E. to set aside a verdict.  And this is true. However, it is also true and, he knows or should know, that the P.E. are the Board of Directors and so can make, amend and rescind any by-laws between AGMs.  Part III - Corporations Without Share Capital - By-law 129.(1) states that: "The directors of a corporation may pass by-laws not contrary to this Act or to letters patent or supplementary letters patent to regulate, ...... (j) the conduct in all other particulars of the affairs of the corporation."  Under this authority, the P.E. should have already rescinded the entire section dealing with discipline of members and appointed a task force to create a disciplinary process consistent with the principles of natural justice.  They might find the Principles of Natural Justice helpful in this endeavour. link: https://uwaterloo.ca/faculty-association/policies-agreements/principles-natural-justice.  And, given that Richard Brock was convicted under a disciplinary process so lacking in fundamental fairness, it is outrageous for the P.E. to tell him to take his case to a court rather than setting aside the verdict as a product of a deeply flawed procedure.   

Removal of Directors
The Corporation Act provides that by-laws can be made to remove any director of an association which is a Part III corporation.  Part II 67.(1) applies to Part III corporations and states that "by-laws may provide that the shareholders [of Part II corporations but members of Part III corporations] may, by a resolution passed by at least two-thirds of the votes cast at a general meeting of which notice specifying the intention to pass such resolution has been given, remove any director before the expiration of his or her term of office, and may, by a majority of the votes cast at that meeting, elect any person in his or her stead for the remainder of the term."  This means that any and all executives of the P.E. can be dismissed by members at any time and without cause should such by-laws be enacted.  It also follows that no director [executive member of the P.E.] can be removed except under Part II 67.(1).

Does this provision in the Corporation Act apply to unit executives who are effectively directors of the unit?  In this regard, it is telling that the notice of Richard Brock's dismissal did not include his removal as Past President.  The Past President is a member of the Executive Committee [Board of Directors] because he has previously been President.  This is an unelected position and so electors cannot remove him.  From this it follows that Richard Brock remains the Past President and, in this capacity, can carry out the duties assigned to that office.  Given that unit executives are the elected directors of their unit, it follows that members of a unit may remove any of their elected executives without cause at any time provided that by-laws are enacted to this effect and the provisions of the Corporation Act are adhered to.  This now raises the question as to whether the P.E. can remove any elected unit executive.  Perhaps this question has been dealt with by a court and, if so, there is an answer of which I am unaware. My understanding is that where a director has been elected by a certain class of members, then only those members can vote to remove that director.  This implies that Richard Brock can only be removed from his position by the members who voted him in.  The same is true for all elected directors and elected executive members. 
If anyone knows of provisions or rulings contrary to the argument above, I would be interested in reading about them.

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