Howley v. Cape Breton University Board of Governors

Howley v. Cape Breton University Board of Governors Court Supreme Court Date 2023-02-06 Citation 2023 NSSC 34 Docket Halifax, No. 510886 Judge/Registrar/Adjudicator Smith, Ann E. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Howley v. Cape Breton University Board of Governors 2023 NSSC 34 Date: 2023 02 06 Docket: Halifax, No. 510886 Registry: Halifax Between: Calvin Howley Applicant v. Cape Breton University Board of Governors Respondent DECISION ON JUDICIAL REVIEW Judge: The Honourable Justice Ann E. Smith Heard: September 12, 2022, in Halifax, Nova Scotia Counsel: Gordon Forsyth, K.C. and George Franklin, for the Applicant Nancy F. Barteaux, K.C., for the Respondent By the Court: Introduction [1] Calvin Howley (the “Applicant”) is a member of the Cape Breton University Board of Governors (the “Board of Governors” or the “Board”). He seeks judicial review of two decisions which he says resulted in his exclusion from a portion of the October 22, 2021, Board of Governors’ meeting: a. A decision made by the Executive Committee of the Cape Breton University Board of Governors (the “Executive Committee”) on October 21, 2021,(the “Executive Committee Decision”) to refuse to amend “Prologue Agenda Item 10” to include information with respect to topics to be discussed so as to allow him to determine if he had a conflict of interest and the Executive Committee’s refusal to refer the matter of his objection to the Ethics Committee of the Board of Governors; and b. A decision made by the full Board of Governors on October 22, 2021, (the “Board of Governors’ decision”). [2] In his Notice of Judicial Review, filed with the Court on November 25, 2021, Calvin Howley provides details concerning these two decisions and how they are related to each other, as follows: The Applicant, one of four Faculty representatives of the Cape Breton University Board of Governors, requests judicial review of the decision of the Cape Breton University Board of Governors made on October 22, 2021 to exclude faculty, staff and students from part of the in camera Board Prologue portion of the Board meeting without providing any or inadequate information to justify the exclusion on the basis of any conflict of interest. The Applicant also requests judicial review of the associated decision of the Executive Committee of the Board of Governors, made on October 21, 2021, to approve the agenda for the Board Prologue over the objections of the Applicant, and to refuse to refer the matter of the Applicant’s objection to the Ethics Committee of the Board of Governors. The information the Applicant was given regarding the nature of his conflict was wholly inadequate to justify the exclusion of a statutorily-mandated representative of the Board from a Board meeting. [3] Calvin Howley seeks judicial review of these decisions on the following grounds: 1. The decision made by the Board of Governors on October 22, 2021 to exclude the Applicant, as well as the other internal Board members (faculty, staff and student members), was unreasonable. The internal Board members were not provided with sufficient information to determine if they had a legitimate conflict of interest regarding the topics to be discussed in the in camera session. The Applicant has no knowledge as to what topics the external members discussed. 2. The decision made by the Board of Governors on October 22, 2021 to exclude the Applicant infringed the Applicant’s statutory rights to sit as a member of the Board of Governors appointed pursuant to s. 6(1)(d) of the Cape Breton University Act, RSNS 1989, c. 484 (the “University Act” and s. 2.1 of the Cape Breton University Board of Governors Bylaws (the “Bylaws”). 3. The decision made by the Board of Governors on October 22, 2021 failed to provide the Applicant with procedural fairness and/or natural justice. The Board of Governors failed to follow the procedural requirement of its own by-laws, and failed to provide the Applicant with sufficient information to allow the Applicant to come to a conclusion regarding his potential conflict of interest. The decision to exclude the Applicant from the Board meeting was contrary to the University Act and the Bylaws. 4. The decision of the Executive Committee of the Board of Governors made on October 21, 2021 to refuse to alter the agenda for the October 22, 2021 Board meeting so as to include sufficient information to allow the Applicant to determine whether he had a conflict of interest was unreasonable. This decision was also made in a manner that denied the Applicant procedural fairness and/or natural justice. 5. The decision of the Executive Committee of the Board of Governors on October 21, 2021 to refuse to refer the Applicant’s objection to the Ethics Committee of the Board of Governors denied the Applicant procedural fairness and/or natural justice. [4] Calvin Howley seeks an order quashing and setting aside these decisions, as well as a declaration that the Board of Governors acted unreasonably, contrary to the University Act and the Bylaws, contrary to the principles of procedural fairness and contrary to natural justice by excluding him and failing to provide him with sufficient information to allow him to determine whether he had a conflict of interest. Mr. Howley further seeks a declaration that the Board of Governors is required to provide sufficient information to a member of the Board of Governors to allow the member to determine if they have a conflict of interest in a topic under discussion prior to excluding that member from the discussion and/or meeting. [5] The Respondent filed a Notice of Participation on December 3, 2021, within which it states that the Court should not disturb any decision, action or other matter under review. Evidence on the Motion [6] The Applicant sought to file affidavit evidence on the motion for judicial review. His proposed Affidavit was sworn on March 10, 2022. By oral decision of this Court on June 21, 2022, the Court allowed Mr. Howley to file his proposed Affidavit, with certain deletions and edits. Mr. Howley filed an amended Affidavit in compliance with the Court’s decision which was sworn on July 29, 2022. [7] The Respondent filed no Affidavit evidence, although the Court allowed the Respondent to do so, should it wish to respond to Mr. Howley’s Affidavit. [8] Mr. Howley was not cross-examined on his Affidavit. [9] Finally, the Record of the Respondent was before the Court. The Court will review the contents of the Record below. Issues [10] The Applicant and Respondent in their submissions have framed the issues before the Court very differently. With the greatest of respect to counsel, the Court has distilled what it considers to be the real issues before it, as follows: 1. What “decision” is at the heart of what Calvin Howley disputes, irrespective of how he has framed it in his Notice of Judicial Review: (a) Is it the Board’s “decision” on October 22, 2021, to exclude Mr. Howley, and other Internal Board members, from ten minutes of the Prologue (In Camera) part of the Board meeting in accordance with the procedure it adopted at its March 5, 2021 meeting, and the Executive Committee’s decision on October 21, 2021 to refuse to amend the agenda for the October 22, 2022 Board meeting in the manner proposed by Mr. Howley? (b) Is it the decision of the majority of Board members at the Board’s March 5, 2021 meeting to vote on, approve and substantially adopt recommendations made by the Board’s Ethics Committee in a report to the Board dated February 18, 2021, concerning the procedure for the Board to henceforth follow during the Prologue (In Camera) part of the Board Meeting, which procedure excludes Internal Members from the Board meeting for a ten minute period? 2. If the Court determines that what is at issue is the Board’s March 25, 2021 decision to adopt the Ethics Committee’s recommendations on Board procedure, is Mr. Howley out of time for judicially reviewing that decision i.e., by filing his Notice of Judicial review outside the twenty-five (25) day period to challenge decisions on judicial review as per Civil Procedure Rule 7.05(1)? 3. What is the standard of judicial review which applies to any applicable Board or Executive Committee decision? 4. Did the Executive Committee and/or the Board act unreasonably and/or in violation of the Act or the ByLaws: (a) In the case of the Executive Committee at its October 21, 2021, meeting, by refusing to amend the draft Board agenda to provide more detail concerning the discussion of the topics for the in-camera discussions without Internal Board members, or by refusing to refer the matter to the Ethics Committee; (b) In the case of the Board, at its October 22, 2021, meeting, by excluding Mr. Howley and other Internal Board members from the in-camera discussions with and without the President, without further information. 5. Did the Executive Committee and/or the Board breach any duty of procedural fairness or natural justice it owed to Mr. Howley in connection with any decisions made by each of them, including by: (a) Excluding Mr. Howley from that part of the in-camera Board Prologue portion of the Board of Governors’ meeting on October 22, 2021; (b) Failing to inform Mr. Howley of the reasons why he had a conflict of interest in connection with the in-camera Board Prologue portion of the October 22, 2021, Board meeting, in order to afford him the opportunity to challenge his exclusion; (c) Failing to approach Mr. Howley’s request to provide him with reasons for his exclusion with an open mind, i.e., with bias; (d) Failing to meet Mr. Howley’s reasonable expectations by giving him the opportunity to respond to why he was being excluded, based upon conflict of interest; and (e) In the case of the Executive Committee, refusing to refer its refusal to alter the agenda for the Board of Governor’s meeting to the Ethics Committee of the Board of Governors. Relevant Provisions of the University Act or (the “Act”) The University and the Board of Governors (or the “Board”) [11] Section 3(1) of the Act establishes and creates the University and creates the Board of Governors as a body corporate. [12] Section 3(3) of the Act provides that the government, conduct, management and control of the University and its property, revenues, expenditures, business and affairs is vested in the Board and the Board has various powers as set forth in subsections 3(3)(a) – (g). [13] Section 3(4) of the Act empowers the Board to make by-laws and rules for a variety of purposes: 3(4) The Board may, if and when it sees fit, make such by-laws, rules and ordinances as are not inconsistent with this Act or any other law of the Province for: (a) the management and conduct of the business of the Board; (b) the general management of the University and its related or subsidiary institutions, programs and activities; (c) the appointment of the President, who shall be the Chief Executive Officer and Academic Head of the University and the determination of the powers and authority of the President and the duties and responsibilities and other terms of employment of the President; (ca) the appointment of a Chancellor and a Vice-chancellor and the determination of the duties, responsibilities and terms of the appointment of the Chancellor and the Vice-chancellor; (d) the appointment, selection, and qualifications of employees of the Board and the regulation of salaries or wages to be paid them; (e) the management and investment of funds entrusted to it, and the expenditure of the proceeds therefrom; (f) the regulation of the Board’s own meetings and the procedure and order of business to be followed thereat; (g) the constitution and personnel of the faculty of the University and its committees, and the regular holding of meetings thereof; (h) the duties and powers of committees of the Board; (i) all such other matters as may appertain to or be deemed expedient in the best interests of the University. [Emphasis added] [14] Section 6 of the Act sets out the composition of the Board, and how Board members are appointed, with subsection 6(1)(d) providing for the appointment of members of faculty: (a) the President and a senior administrator designated by the President, ex officio; (b) twelve persons appointed by the Minister of Education, eight of whom shall be from Cape Breton Island; (c) repealed; (d) four persons appointed by the faculty of the University in the manner prescribed by the by-laws of the Board adopted pursuant to subsection (4) of Section 3; (e) four students appointed in the manner prescribed by the by-laws of the Board adopted pursuant to subsection (4) of Section 3; (f) two persons appointed by the Cape Breton Development Corporation; and (g) up to twelve persons appointed by the members first appointed pursuant to clauses (a) to (f). [Emphasis added] [15] The Act also stipulates that the Board must meet at least four times each year and provides for the process by which meetings are called, how Board members are given notice of such meetings and the quorum required to hold a meeting: 10(1) The Board shall hold at least four meetings each year at such time and place as the by-laws may provide. (2) The Secretary of the Board shall call a meeting of the Board upon the order of the Chair or upon the written request of not less than six members of the Board and, in the event that the Secretary shall for any reason fail to call such a meeting in accordance with such order or request, a meeting may be called by the Chair or such members of the Board. (3) Notice of each meeting shall be mailed to all members of the Board not later than five days before the date of the meeting, and in the case of a special meeting, shall state the purpose of the meeting. (4) Subject to such conditions as to the representative composition of a quorum as may be prescribed in the by-laws adopted pursuant to subsection (4) of Section 3, ten members shall constitute a quorum of the Board. Key Provisions of the ByLaws [16] The ByLaws before the Court on this judicial review are noted as last being updated on March 9, 2018. [17] ByLaw 2.8(1) provides for the appointment of various standing committees at the Board’s annual meeting, including the Executive Committee (2.8(a)(1)), the “Bylaws Committee” (2.8(a)(5)) and the “Ethics Committee” (2.8(a)(9)). [18] The composition and powers of the Executive Committee are set out in ByLaw 2.9 which provides as follows: (a) The Executive Committee shall consist of a maximum of twelve members and shall include the Officers of the Board (Chair, Vice-Chair, Secretary and Treasurer), the President & Vice-Chancellor, and a student member of the Board (who normally will be the President of the Students’ Union), and such additional members of the Board as shall not raise the total membership of the committee above the said twelve, said additional members to be elected by the Board at its annual meeting. (b) The Executive Committee shall have power to deal with any and all matters pertaining to the Board which may arise between meetings of the Board and shall report regularly to the Board provided that in exercising its powers the Executive Committee shall be governed by established policy and existing directives of the Board. [Emphasis added] [19] ByLaw 2.13(b) provides that the Bylaws Committee must carry on a regular review of all Bylaws and regulations of the University “in accordance with the Directions of the Board and such recommendations as may be made from time to time by Board members, the administration and others having an interest in the affairs of the University.” [20] ByLaw 2.17 deals with the Ethics Committee and the Board’s Code of Ethics and Professional Conduct for Members of the Board of Governors of the University (the “Code of Ethics”) and provides that the Ethics Committee must review the Code of Ethics at least every five years and recommend changes “as required” and: (3) consider matters related to violations of the Code of Ethics referred to it by the Board, Board Executive or any individual Board Member. [21] ByLaw 9 provides for a detailed procedure for meetings of the Board and explains what is meant by “Open Meetings”, “Confidential Matters” and “In Camera Topics” at Board meetings: 9 Procedures for Meetings 9.1 Open Meetings The regular and special meetings of the full Board shall be open to the public as spectators subject to the availability of space; the Board may adopt procedures for allocating space to potential spectators when all those desiring admission cannot be accommodated. Portions of the agenda of Board meetings may be designated “confidential” and the Board may meet in camera to deal with confidential agenda items. In general, there will be a confidential and a public agenda for each meeting. … 9.3 In Camera Topics The Board shall endeavour to hold as much of the agenda of its full Board meetings in public as is possible, consistent with the following principles. In general, the following topics shall be treated in camera: (a) Personnel matters. (b) Any discussion where it is likely that the personal circumstances (normally and generally considered private) of any individual shall be required to be discussed. (c) Labour negotiations and the planning of the general strategy thereof. (d) The receipt of formal legal advice or the directions of legal counsel in an ongoing or potential legal action. (e) Aspects of tendering processes or contractual agreements that have been specifically designated as “confidential”. (f) The planning and progress reports of a financial campaign, when requested. (g) Reports from the Tributes Committee, when requested. (h) Reports from the Nominating Committee, when requested. (i) All discussion of what agenda items shall or shall not be treated as “confidential”. (j) Discussion of the privileges of guests and spectators at a Board meeting. (k) Any agenda items when it has proved repeatedly impossible to maintain order as a public agenda item. (l) Every meeting shall include a section entitled “Questions” where members of the Board may ask questions of the Chair, the chairs of Board committees, the President & Vice-Chancellor and the Treasurer in camera. 9.4 Confidentiality (a) Portions of the Board meetings held in camera shall be strictly confidential and shall not be disclosed to anyone except members of the Board and those guests who were specifically invited to attend that section of the meeting. Notwithstanding, the Board may, by a two-thirds majority vote, make portions of a confidential discussion available to the public or specified individuals at its discretion. (b) The minutes of the in-camera agenda shall be kept separate and confidential and shall be approved separately and in camera. … 9.8 In Camera “Prologue” Every meeting shall begin in camera with a session designated “Prologue” with the following agenda items: (a) approval of the minutes pertaining to the confidential (in camera) portion of the previous meeting; (b) approval of the agenda for the meeting including the partitioning of the agenda into public and confidential items (if any); (c) approval of the Secretary’s docket of oral presentations from the public; and (d) approval of any requests for the granting of specific privileges or exceptions to guests or spectators (including the news media). After a brief recess to notify guests and spectators, the public agenda shall commence – typically with approval of the minutes of the public portion of the previous meeting. … 9.10 Origin of the Agenda The Chair in consultation with the Vice-Chair and Secretary shall develop the agenda that is circulated to members with the notice of meeting including a proposed classification of public and confidential agenda items. Committee reports and notices of motion shall specify if such motions or reports or parts of such reports shall be treated confidentially. The final designation of the confidential status of any item shall be decided by the Board during the in camera “Prologue” of the meeting. 9.11 Agenda for Regular Meetings Every regular meeting shall at a minimum contain the following sections: (a) a “Prologue” (see 9.8 of this section); (b) roll-call; (c) approval of the minutes of the public section of the previous meeting; (d) an opportunity for the President & Vice-Chancellor and the Chairs of every standing and ad hoc committee of the Board to report; (e) the reception of a report from the Treasurer on the current financial status of the University; and (f) an in camera “Question” period (see 9.3(l) of this section). … 10 Conflict of Interest All members of the Board are bound by the Code of Ethics and are expected to perform their duties as board member (sic) to the best of their abilities and in the best interests of the University. [Emphasis added] [22] The Record includes the University’s Code of Ethics. The version of the Code of Ethics disclosed in the Record is noted to be “approved as a Board of Governors Policy on June 29, 2000” and “approved as a Board of Governors Bylaw on December 15, 2000”. [23] Provisions of the Code of Ethics addressing the obligations of members and “guidelines” for “situations of conflict of interest”, including “illustrations of conflicts of interest” are as follows: 4 General Duties and Obligations of Members 4.1 Members are required to carry out their functions with integrity and good faith in the best interests of the University and its mission, including a duty to faithfully attend meetings and participate in deliberations and decision making. Members shall act responsibly and fairly, with the same diligence, loyalty and prudence that a reasonable and responsible person would exercise in similar circumstances. While some Members may be appointed by specific stakeholder groups, or by the Minister, once appointed they are obliged to place the best interests of the University as an institution foremost and exclusively in their deliberations. … 5 Situations of Conflict of Interest 5.1 Members must avoid situations in which there may be a real, apparent or potential conflict between their personal interest and their duties as Members. The guidelines set out below are intended to facilitate understanding of conflict of interest situations, and to allow such situations to be resolved in the University’s best interest. A Member is considered to have an apparent conflict of interest whenever he/she, while not in a real conflict of interest situation, appears to have, in the opinion of a reasonably informed person, an interest that is likely to jeopardize the impartiality and objectiveness the member is obliged to exercise. 5.2 Without limiting the generality of the foregoing, the following may be considered as illustrations of situations of conflict of interest: (a) when any Member, whether directly or indirectly, has a personal interest in the outcome of deliberations of the Board or any of its committees (e.g., including, but not limited to, business or labour relations negotiations, etc.); (b) when any Member, directly or indirectly, has a personal interest in a contract or a proposed contract to be entered into by the University or a University-related body (e.g. including, but not limited to business or labour relations contracts from which the Member or his/her company, employer or association may benefit, etc.); (c) when any Member, directly or indirectly, obtains or is likely to obtain a personal advantage as a result of a discretionary decision made by the University or a University-related body; (d) when any Member is a member of the senior management of a corporation, institution or body, whether public or private, whose interests may be in competition with those of the University; (e) when any Member accepts gifts, gratuities or favours (including, but not limited to future reciprocal support in exchange for a partisan view or vote) from a firm or corporation engaged in or wishing to engage in transactions with the University (except in the case of customary gifts of a purely nominal value). 5.3 Disclosure of Interest Any Member of the Board, its committees or sub-committees, having a conflict of interest shall disclose this situation to the Secretary of the Board at the earliest possible occasion. This disclosure will be communicated to the President & Vice-Chancellor and to the Chair of the Board, and, as appropriate, to the Chair of any relevant committee. Where the Member does not recognize or identify such a real or apparent conflict, the matter so identified shall be referred to the Board’s Ethics Committee for resolution on a timely basis, such Committee to be comprised of there senior external appointees to the Board’s membership, including the Chair and the Vice-Chair, except where the conflict in question may involve the Chair or the Vice-Chair, in which case the Executive Committee shall nominate a senior external Member, to replace the affected party on the Ethics Committee. 5.4 Withdrawal from Deliberations Any Member of the Board or its committees having a conflict of interest – whether disclosed or determined by the Ethics Committee – with respect to an issue under discussion shall withdraw from the meeting where such discussion takes place. … 6 Compliance 6.1 Procedures If there are reasonable grounds to believe that an infringement to this Code has occurred or may occur, or in the case of alleged or actual conduct deemed to be contrary to the standards of ethics and professional conduct set out herein, any Member of the Board may request the Ethics Committee to inquire into any allegations to that effect. The Member making an allegation of non-compliance shall notify the Secretary of the Board in writing. The Secretary will forward notification to the Ethics Committee and to all parties concerned. The Ethics Committee shall hear all parties, and shall prepare a written and signed recommendation, which shall be forwarded to the Executive Committee. 6.2 Sanctions Should a Member of the Board or any of its committees or sub-committees fail to comply with the duties and obligations specified in this Code, the Executive Committee may recommend to the full Board that the Member be issued a warning or a reprimand, or be suspended as a Member for a determined period of time. Any proposed sanction or action to be taken shall be voted on by the Board by secret ballot. 7 Implementation 7.1 This Code of Ethics and Professional Conduct will take effect from the date of the meeting of the Board at which it is adopted and may be amended from time to time. Upon acceptance of appointment to the Board of Governors, its committees or sub-committees, a member will be asked to accept the Code of Ethics and Professional Conduct and so attest with his/her signature. [Emphasis added] [24] The Court notes that in his Affidavit, Mr. Howley states that the Board of Governors sits approximately five (5) times per calendar year. He also says that pursuant to the University Act, the Board is comprised of members appointed from within the university community, including faculty, staff, and students. He terms these members as “Internal Members”, and members appointed from outside of the university community. He terms such members “External Members”. The latter term, “external members” appears to be commonly used by Board members and others based upon the documents before the Court, but the term “internal members” does not. However, counsel for the Board raised no objection to the use of such term and so, to the extent it is helpful to set out Mr. Howley’s or the Board’s position on this application for judicial review, this Court may refer to this nomenclature, i.e., “Internal Members” and External Members”. Key Documents Disclosed in the Record [25] The Record discloses that on November 3, 2020, Calvin Howley, in his role as President of the Cape Breton University Faculty Association (“CBUFA”), and on behalf of the Executive of CBUFA, wrote to Robert Sampson, the Chair of the Board of Governors of the University to express concerns with respect to the Board of Governor’s protocol of having faculty, staff and student Board members leave portions of Board meetings so that the remaining Board members could have what Mr. Howley described as “one-on-one sessions with and without President Dingwall”. [26] Because this letter provided the impetus for the Board of Governor’s referral of this protocol to the University’s Ethics Committee for review, and recommendations by the Ethics Committee about the protocol to the Board, the Court will set out in full the contents of Mr. Howley’s letter to Mr. Sampson. The Court notes that the letter concludes by stating that CBUFA’s representative on the Board, Mr. Howley, “should not comply with this practice and any motion by the BOG to remove” him would “likewise be out of order”: Dear Mr. Robert Sampson, Re: Board Protocol of Faculty/Staff/Students Members Leaving Board Meetings On October 28 2020, the CBU Faculty Association (CBUFA) Executive met to discuss the Board of Governors (BOG) protocol of having faculty/staff and student Board members leave portions of meetings so that the remaining BOG members can have a one-on-one session with and without President Dingwall. The Executive discussions focused, in part, on how this protocol started, the issues or concerns surrounding this protocol and potential future steps to address our concerns regarding this practice. It is ironic that a process that started to promote better transparency of the BOG, in the opinion of CBUFA, has not only failed to achieve this goal but in its current form has resulted in less transparency. The reasons cited by members of the Board in justifying this practice have included normal corporate governance, conflict of interest, an opportunity for the President to have a discussion with the external Board members and is a normal BOG protocol. However, CBU is non-profit entity that utilizes collegial governance. This practice is not a conflict of interest issue but, in fact, violates the Board’s ethics policy. Faculty/staff and student Board members are not only being asked to voluntarily leave a meeting without adequate justification but the subject matter to be discussed in their absence is also being withheld. While these one-on-one sessions have been described as discussions, the minutes of previous Board meetings demonstrate that, during these exclusive sessions, significant Board business is being conducted with motions being moved and voted upon. Objections to this protocol have been documented throughout the past two years. Describing this as only common practice, ignores the decades of BOG history that treated faculty/staff and student members as equal Board members. The CBUFA executive is deeply troubled that faculty/staff and student representatives are being treated differently from the other Board members simply because they are employees and students of CBU. Section 4.1 of the Code of Ethics and Professional Conduct requires BOG members to act in good faith and in the best interests of the University regardless of their affiliation and yet this practice assumes that Faculty and students are not capable of doing this. In closing, the CBUFA executive has decided that its representative on the BOG should not comply with this practice and any motion by the BOG to remove our representative would likewise be out of order. [Emphasis added] [27] The following day, November 4, 2020, Mr. Robert Scott Stewart, Ph.D., the President of the Association of Nova Scotia University Teachers (“ANST”) and Ms. Brenda Austin-Smith, Ph.D., President of the Canadian Association of University Teachers (“CAUT”) wrote to Robert Sampson, Chair of the Board of Governors and David Dingwall, President of the University to express their concerns about what they say are “recent changes in the procedures at meetings of the Cape Breton University’s (CBU) Board of Governors”. The authors state that it is their understanding that the “Board is now asking faculty and student representatives to leave the room during some discussions, effectively treating them differently than other Board members”. The letter continues, in part, as follows: According to your own bylaws, the only reason a Board member ought to recuse themselves, or be recused, is due to a conflict of interest. Though the Board apparently thought the faculty and students were in conflict of interest at the last meeting of the Board of Governors, the alleged conflict was never specified. According to your Code of Ethics, there are two ways in which a Board member can be in a conflict of interest: a real conflict of interest or an apparent one. • A Member is considered to have a real conflict of interest whenever he/she holds a personal interest, whether direct or indirect, which he/she is aware of, and which is sufficient to put into question the impartiality and objectiveness the member is obliged to exercise. • A Member is considered to have an apparent conflict of interest whenever he/she, while not in a real conflict of interest situation, appears to have, in the opinion of a reasonably informed person, an interest that is likely to jeopardize the impartiality and objectiveness the member is obliged to exercised. At the last meeting, Calvin Howley, President of the Cape Breton University Faculty Association (CBUFA) did not believe himself to be in either a real or apparent conflict of interest. It is hard to see how he could identify a perceived conflict, given that he was not informed of what was to be discussed during the meeting to which he was to be excluded. How, then, could a “reasonable person”, to use the phrase in your Code, determine they were in either sort of conflict of interest as the very idea of reasonable decisions implies adequate information, which was not available at that time. When a member does not perceive themselves in a conflict of interest and does not recuse him or herself, your Code of Ethics stipulates the following: • Where the Member does not recognize or identify such a real or apparent conflict, the matter so identified shall be referred to the Board’s Ethics Committee for resolution on a timely basis, such Committee to be comprised of three senior external appointees to the Board’s membership, including the Chair and Vice-Chair, except where the conflict in question may involve the Chair or the Vice-Chair, in which case the Executive Committee shall nominate a senior external Member, to replace the affected party on the Ethics Committee. This step was not taken and hence the Board acted in contravention of its own Code of Ethics. Leaving that particular issue aside, it appears that the Board Chair has confused and/or conflated (potential) “conflicting interests” with a “conflict of interest”. The fact that faculty members or students – or anyone else on the Board for that matter – disagrees, or is feared to disagree with the Board Chair is no reason to accuse a member of a conflict of interest. [Emphasis added] [28] The Ethics Committee met to discuss the concerns raised in the letter from Mr. Howley dated November 3, 2020, on behalf of CBUFA and the joint letter from the Presidents of ANST and CAUT dated November 4, 2020. In a memorandum to the Board of Governors dated February 18, 2021, the Ethics Committee, with a “Re” line, “In-Camera Procedure”, reviewed the following: • CBU Meeting Procedure, including with reference to the University Act and provisions of the ByLaws (9.1 Open Meetings and 9.3 In Camera Topics) • Current Practice, including reference to Section 9.8 of the Bylaws • Best Practices for In-Camera Sessions, including reference to an attached brief on in-camera board meetings from “BoardWorks Consulting Inc. in Halifax”, which is noted to contain an overview of best practices for in-camera meetings, noting that such meetings: - Serve as an “early warning system” for the Board Chair and the CEO; - Should be treated as a normal part of the Board’s work; and - Typically involve a segment with the CEO and a segment without the CEO. Reference is made to the “BoardWorks brief also advises that in-camera sessions should not be used for micromanaging or dealing with issues that should be dealt with in regular Board meetings. It recommends that boards adopt a policy for in-camera sessions so the rules and purpose are clear to all involved. • Specific Issues – University Boards, including reference to the structure of university boards creating “structural conflicts” or “conflicts of commitment as a result of appointment of members from stakeholder groups” and stating that “[T]his conflict was acknowledged in a recent review of the Memorial University of Newfoundland’s governance culture and practices” and further stating that “[T]his review highlights the conflict of commitment for Board members who also hold positions as officers or officials in unions or student governing bodies. These individuals are placed in a conflict of commitment, as fiduciaries of both the university and the union or student governing body. Further reference is made to York University, with the statement that at that university “non-academic employees are not eligible to serve on the board of governors if they also serve as an officer or official of their union or employee association, with York’s policy attached. Reference is also made to the “Good Governance Policy for the Board of Governors” of the University of Guelph with a statement that that policy “explicitly acknowledges “structural conflicts” inherent in the presence of faculty, staff and student members” with provisions of that university’s policy addressing “structural conflicts” set out. A statement that “Structural conflicts” or “conflicts of commitment” can translate into real or perceived conflicts of interest when discussion topics centre on matters involving the member’s other commitments or personal interest. [29] In its February 18, 2021, Memorandum to the Board, the Ethics Committee made the following “Recommendation” to the Board including a specific recommendation that the Board revise its in-camera policy RECOMMENDATION Structural conflicts are inherent in the constituency make-up of university boards, including the CBU Board, and the Board must ensure these conflicts do not impede the obligation of Board members and the President to communicate any concerns or complaints promptly and clearly. All Board members have an obligation to prioritize the best interests of the University, regardless of their outside obligations, according to the Board’s Code of Ethics and Professional Conduct, at 4.1: While some Members may be appointed by specific stakeholder groups, or by the Minister, once appointed they are obliged to place the best interests of the University as an institution foremost and exclusively in their deliberations. Despite this obligation, there will be times when members’ other interests conflict with their duties as a governor of the University. In such cases, the member is required to withdraw from the Board discussion: 5.4 Withdrawal from Deliberations Any Members of the Board or its committees having a conflict of interest – whether disclosed or determined by the Ethics Committee – with respect to an issue under discussion shall withdraw from the meeting where such discussion takes place. The Board’s Code of Ethics and Professional Conduct also expressly requires Board members to promptly communicate any concerns: 4.8 Members are obliged to communicate promptly and clearly to the Chair of the Board and to the President & Vice-Chancellor any significant concern or complaint, and let them deal with it. Members should refer any request for information about Board activities or actions from any Member of the University or the external community to the Board Chair or the Board Secretary for response. In that regard, the Ethics Committee recognizes the value in allowing the opportunity to discuss matters that create a conflict of interest for some members, without forcing members to request an in-camera session for that purpose. This can be achieved by having regular in-camera sessions, with appropriate limitation those sessions. The Ethics Committee recommends that the Board revise its in-camera policy as follows: 1. Adopt a “best practice” of having a regular in-camera session with the entire Board, absent the President and senior management. 2. Following the whole-Board in-camera session, convene an in-camera session with the President and external Board members, only (a “modified in-camera session”). 3. Following this modified in-camera session, convene an in-camera session with external Board members, absent the President. 4. Any modified in-camera session should have clear parameters on topics of discussions. The Ethics Committee recommends limiting the discussion to human resources, personnel and labour issues, which present a real conflict of interest for faculty/staff and students. These are among the list of topics that must be treated in-camera, according (sic) the Board’s by-laws (Section 9.3). 5. All in-camera sessions should also have a time limit of 10 minutes, unless, in the discretion of the Chair, an issue arises that requires longer discussion. 6. It is the responsibility of the Chair to ensure discussion in any in-camera session remains on-topic and any issues that are raised outside the parameters of the session are called out of order and then raised in the presence of the Board as a whole (subject to any conflicts of interest that may exist among other members, senior management or the President). 7. Modified in-camera sessions are for information and discussion, only. No decisions will be made and no motions will be passed. 8. The Board should clarify the purpose and intent of this in-camera procedure. The Board has an interest in ensuring that members do hesitate to ask a question or raise an issue because of the presence of those who have conflicting interests. The Ethics Committee invites discussion of these recommendations by the Board as a whole. [Emphasis added] [30] On March 3 and 4, 2021, the Board Chair wrote to all members of the Board, advising that concerns with respect to the then current practice relating to the use of in-camera sessions involving “external board members only” had been referred to the Board’s Ethics Committee for review. Chair Sampson further advised: This committee [Ethics Committee], together with independent legal counsel, has met on several occasions to review the matter. Extensive research had been undertaken, both relative to our Board’s past practice as well, as the opinion of scholars on the topic of “good governance” and the practice of other universities throughout the country. What is clear, is that while the use of in-camera sessions is a procedure adopted by (sic) vast majority of boards of directors, what clearly differs amongst most is the actual process employed; there is no universal standard. The Committee feels the attached report and recommendations address the specific concerns presented. These will be formally presented for discussion and proposal and that they be adopted as a form of Board policy. I am also attaching for ease of reference, a copy of the current guidelines surrounding the Ethics Code now in place at Cape Breton University. [Emphasis added] [31] The full Board met on March 5, 2021. Minutes of the Prologue, In Camera Session of the Board dated March 5, 2021, were included in the Record. Relevant parts of the Minutes include the following: 6.2 Governance Procedures – In Camera Meetings Mr. Sampson referred to the memorandum and supporting documents circulated to Board members on March 3rd. He provided members a succinct summary of the recommended policy with regard to the in-camera session and the process followed in its development. He noted two revisions: to number four, removal of the last line “These are among the list of topics that must be treated in-camera, according to the Board’s by-laws (Section 9.3).” and to number eight of the proposed policy in that it should read, “…The Board should clarify the purpose and intent of this in-camera procedure. The Board has an interest in ensuring that members do not hesitate to ask a question or raise an issue because of the presence of those who have conflicting interests.” For the benefit of the new members he described the current practice and purpose of the In-Camera session of the Prologue meeting. He noted that during the last number of meetings there has been objection to certain members being asked to excuse themselves for the purposes of these discussions. For this reason, the Ethics Committee was engaged to review the process, the objection, if a conflict exists, and to provide a recommendation on their findings. Mr. Howley expressed disappointment that the information was not received in a timely manner and did not permit all members the opportunity to fully read, understand and obtain the mentioned material that was not included with the report. For this reason, it was moved by Mr. Howley that the item be tabled until the April meeting to provide members with adequate time to review the materials. The motion was not seconded and therefore was not considered. Dr. [name deleted by this Court] commented that the contributions of the external members is extremely important but disagrees with the process as it currently exists and that the recommended policy is flawed. He suggested that the establishment of an External Members Committee might be a better option. He also added that no voting member of the Board should be asked to remove themselves from any portion of a meeting, unless a clear and apparent conflict of interest has been identified. Mr. Howley further noted that his objections are not personal in any form and that his objections are completely factual in nature. He also objected to the report in that he believes the issue at hand is to do with governance, not ethics, and that the recommendations violate the Ethics Policy as they were developed without consultation of all parties involved; he, nor any other faculty member, was not contacted prior to the development of the report and recommendations. He also noted several other objections and concerns with regard to the cited governance comparisons at other universities, lack of inclusiveness in the process and what the report is suggesting be implemented, what inherent conflict of interest exists, that the practice will normalize a lack of transparency by having closed door meeting which excludes certain members. He also challenged the report noting this being a past practice, noting that a review of minutes will show this is one that was implemented in just the last several years. In conclusion, he strongly apposed (sic) the report and suggested that if the Board wishes to have such sessions that they be held outside the regular agenda and not take away from the regular business of the Board. Dr. [same member whose name was deleted by this Court, above] supported Mr. Howley’s suggestions that the report and its recommendations are far too broad and that his previous suggestion of having an External Members Committee could be a resolution. He also suggested that in times when a conflict has risen, members should be at least given notice of why they are being excused through some sort of informative practice. Ms. [name deleted by this Court], as a member of the Ethics Committee, responded that the Committee made no assumptions and performed an extensive review with industry experts on board governance. The resulting report and recommendations are based on their findings of best practice. She suggested that the Board should consider conducting a session to refresh and inform all members on the workings of good governance. Mr. [name deleted by this Court] offered, as a member of this board and various provincial and national boards, this practice is consistent with best governance practices and he has no issue with it. For information, he added that the practice of having external members only in a closed session predated the current President and Board Chair. [four names deleted by this Court], as external members, added that affording external members the opportunity to have a closed session is one that is appreciated and they are in support of report and recommendations. Dr. [name deleted by this Court] highlighted that the recommendations limit the discussion that can be had during the sessions which should alleviate any concerns of motions or recommendations being move. Mr. [name deleted by this Court] echoed this comment and suggested the motion on the repot (sic) and recommendation be called. President Dingwall added that he echoes Ms. [member of the Ethics Committee, name deleted by this Court] statement that the recommendations are those of best governance practice. He quoted the Board’s Code of Ethics and Professional Conduct, at 4.1: While some Members may be appointed by specific stakeholder groups, or by the Minister, once appointed they are obliged to place the best interests of the University as an institution foremost and exclusively in their deliberations” and thanked all members for subscribing to this as CBU goes forward. He added that after reading the report and recommendations he believes it to be balanced, reasonable and appropriate. With no further comments or questions, it was moved by Ms. [name deleted by this Court], seconded by Ms. [member of the Ethics Committee referred to above], to accept the report and recommendation of the Ethics Committee with the noted amendments: number four, removal of the last line “These are among the list of topics that must be treated in-camera, according to the Board’s by-laws (Section 9.3).” and to number eight of the proposed policy in that it should read, “…The Board should clarify the purpose and intent of this in-camera procedure. The Board has an interest in ensuring that members do not hesitate to ask a question or raise an issue because of the presence of those who have conflicting interests.” Motion carried. Nays: 2 … 10. Open Session 10.1 Board Discussion with President For this conversation, CBU faculty and staff exited the room for an unrecorded conversation between external Board members and the President. President Dingwall will follow-up on any item discussed as needed. 10.2 Board Discussion without President For this conversation, President Dingwall exited the room to allow external Board members an in-camera conversation. Mr. Sampson will follow-up on any item discussed as needed. 11. Adjournment The meeting was adjourned for a brief recess before moving in the Public session. Dr. Richard MacKinnon, Secretary to the Board [Emphasis in bold original to Minutes; underlining emphasis added by this Court] [32] The Record discloses that on March 26, 2021, Kyla Horne, on behalf of Richard MacKinnon, Secretary to the Board of Governors, sent Calvin Howley an email message advising as follows: Hello Calvin, Further to the Board of Governor’s meeting of March 5, 2021, I am aware of your request to have the Board’s Ethics Committee inquire into your alleged or actual conduct which was deemed to be contrary to the standards of ethics and professional conduct established by the Board. In accordance with article 6.1 of the Board’s Code of Ethics and Professional Conduct Bylaw, and associated policies, I am writing to provide notice that the Ethics Committee intends to convene a meeting the week of April 12th to hear the parties to this dispute and subsequently, develop a recommendation pursuant to clause 6.2 of the Bylaw. Once the Ethics Committee membership, for purposes of hearing this matter, is finalized I will advise of the precise time and date that the Committee intends to convene. In the interim I wish to provide you with ample notice of the intended meeting in the event you may wish to make a representation to the Ethics Committee. [Emphasis added] [33] On April 6, 2021, the acting Chair of the Ethics Committee, Ms. Denise Allen, sent Mr. Howley a letter, via email, Re: “Referral to Ethics Committee March 5, 2021, Board of Governors Meeting”. This letter provides, in part, as follows: As you know, your conduct at the Board of Governors meeting on March 5, 2021 has been referred to the Ethics Committee, pursuant to this Committee’s mandate as stated in Bylaw 2.17(b)(3), to consider matters related to violations of the Code of Ethics and Professional Conduct for Members of the Board of Governors of Cape Breton University referred to it by the Board, Board Executive or any individual Board Member. At the March 5, 2021 Board meeting, you declined to excuse yourself from the Board’s in-camera session for external members. The Board chair called for a motion regarding your conduct, and the Board passed a motion to refer your conduct to the Ethics Committee for consideration. The Ethics Committee will proceed to hear all parties to this issue and prepare a written recommendation to the Executive Committee, as provided in Section 6.1 of the Code of Ethics and Professional Conduct. The Ethics Committee intends to address this matter in a timely manner. … The Committee will be considering whether your actions constitute a failure to comply with the Code of Ethics and Professional Conduct; specifically, your refusal to comply with the Board’s adopted in-camera procedure by declining to excuse yourself from the in-camera session, wherein the parameters of discussion would be matters related to human resources, personnel and labour issues. You are invited to provide written submissions outlining your position on the issue before the Committee, and any potential sanctions, by noon on Wednesday, April 14, 2021…. You will be provided with a copy of all information submitted to the Ethics Committee in relation to this matter, including any submissions by Mr. Sampson as Board Chair, and your submissions will be provided to Mr. Sampson. You will then have until noon on Wednesday, April 21, 2021 to provide any written response. … [Emphasis added] [34] Mr. Howley provided a three and one-half page written response to the Ethics Committee which is dated April 14, 2021. Among the points made, and concerns raised, by Mr. Howley in his submission are the following: Historical Background The practice had been introduced at the start of my tenure on the BOG in 2018 or just prior to it. In 2018 during the in-camera meeting of the BOG Faculty, Staff and Students were requested to voluntarily leave so that the external board members could have what was described as a discussion or one-on-one session with the University President. The President would leave so the external board members could have a discussion and then the process was repeated with the external BOG members meeting with Faculty, Staff and Students in the absence of the President. I had raised objections at the BOG executive and general meetings on this practice as I felt it could be abused and not practical as it consumed a great deal of time. Over the next couple of BOG meetings, the time Faculty, Staff and Students were asked to wait in the hallway went from 10 minutes up to 45 minutes. In addition, the session involving Faculty, Staff and Students meeting with the external BOG members in the absence of the President had been discontinued with no explanation. Eventually the practice simply involved Faculty, Staff and Student members being asked to voluntarily leave while the external BOG members had a discussion with and without the President. During the June 2020 BOG meeting the minutes of the previous March 6, 2020 meeting revealed that recommendations from the Presidential review committee had been approved in one of these sessions with the external BOG members. See appendix B. I continued to renew my objections to the practice and noted that I would not comply with what had been described as a voluntary practice. In December of 2020 the BOG Chair had referred the issue of the practice to the Ethics Committee to prepare a report to present to the BOG. The report had been presented…and approved at the March 5, 2021 BOG meeting. See Appendix C. … The recommendations in the report limit the discussion to human resources, personnel and labour issues. However, the recommendations do not indicate if the agenda will detail the specific topics in these one-on-one session with the external BOG members or if these vague descriptors will simply be used to justify faculty, staff and student BOG members having to leave the meeting. The only valid reason for any BOG member to be required to leave a meeting would be a real conflict of interest. However, if a conflict of interest is to be declared, the BOG member must be made aware of the specific conflict of interest. To request a member of any board to excuse themselves because of a declared conflict of interest without disclosing the specific nature of the conflict is simply wrong and goes to the heart of my complaint with this practice. The referenced “structural conflicts” or “conflicts of commitment” used to justify the practice are simply invalid and contrary to the Act, see appendix D, which set the composition of the BOG. In short, the committee and the BOG members advocating these conflicts are second guessing the very act use to put Faculty, Staff and Students on the BOG. … To accept the practice as described in the report would be to allow not only myself but all Faculty, Staff and Student BOG members to be relegated as second-class members and thus is not a viable option. Thus, leaving only two options. One option would be to simply refuse to excuse myself and face expulsion from the Board. Alternatively, after consulting with the Canadian Association of Unionized Teachers (CAUT) and our legal counsel in Halifax, could note my objection at the next BOG meeting and pursue external processes that would include both a grievance under the CBU-CBUFA Collective Agreement and filing a Judicial Review. If the purpose of the Ethics committee is to promote confidence in the integrity, impartiality and transparency of the actions of the Board of Governors, and to enable members of the Board to carry out their mandate and functions in an independent and objective way, then the committee will take this document seriously and not disregard the concerns contained within it. [Emphasis added] [35] The Record discloses that on April 19, 2021, Ms. Denise Allen, Acting Chair of the Ethics Committee, wrote to Mr. Howley via email, thanked him for his written response to the Committee, advised that the Committee was scheduled to meet on April 21, 2021, and extended to Mr. Howley the opportunity to appear in person before the Ethics Committee on that date, to offer any oral remarks he wished the Ethics Committee to consider in conjunction with his written submissions. Ms. Allen advised Mr. Howley that there was no obligation for him to appear. [36] Included in the Record are Minutes of the April 22, 2021, meeting of the Executive Committee of the Board. Mr. Howley is noted to have attended this meeting. Item 8 of these Minutes records the following with respect to the Executive Committee’s review of the agenda for the meeting of the full Board the following day, April 23, 2021: 8. Review of April 23rd Prologue/Public Agendas 8.1 Prologue: No changes. 8.2 Public: No changes. [37] The Minutes of the Prologue to the Board of Governors April 23, 2021, Meeting (In-Camera) which took place via MS Teams is included in the Record. Item 6 of these Minutes records concerns raised by Mr. Howley with respect to the “new governance procedures” and the response of Board Chair, Mr. Sampson, as follows: 6. Business Arising from the Previous ‘In Camera’ Minutes Mr. Howley referred to the new governance procedures and the matter being forwarded to the Ethics Committee. He advised that he has sought legal counsel and was advised that his best course of action was to simply note an objection to the agenda item (10 Open Session) because the guidelines do not list a specific list of conflicts that would inform an individual of what the conflict might be and if they were indeed in conflict. He was further advised to comply with the practice, to note his objection for the record, and to inform the Board Chair that he will consult with CBUFA to recommend a grievance be filed or to apply for a judicial review. Mr. Sampson, for the purposes of the minutes, noted that the policy adopted during the March meeting does include a defined list of topics to be discussed during the Open Session and that the matter was forwarded to the Ethics Committee. The Ethics Committee, during the April 22nd meeting of the Executive Committee, respectfully requested more time to review the matter and will be prepared to provide a report during the June meeting. … 10. Open Session 10.1 Board Discussion with President 10.2 Board Discussion without President For the purposes of these agenda items, faculty and staff exited the room and the discussions were unrecorded. The Board Chair, for the purposes of the minutes, reiterated Mr. Howley’s objection to this practice and that he will follow-up on any item discussed as needed. [Emphasis added] [38] The Record also includes a letter dated May 18, 2021, addressed to Mr. Howley from Denise Allen, Acting Chair of the Ethics Committee which states that the Ethics Committee had learned that an email from Chair Sampson to Board Secretary, Mr. MacKinnon, sent on March 30, 2021, providing “formal notice of the issue referred to the Ethics Committee, was not forwarded to you”. Ms. Allen extended to Mr. Howley “sincere apologies” that this email had not been sent to him and asked that he advise by the end of the day on May 21, 2021, whether he wished to make any further response or submission to the Ethics Committee after reviewing this email. Ms. Allen duplicated the content of the March 30, 2021, email from Chair Sampson to the Ethics Committee in her letter to Mr. Howley. This email from Chair Sampson included the following statements: The recommendations brought forwarded (sic) [from the Ethics Committee] were debated and by motion, were accepted with one minor change. I believe there were two Bd members who voted against and no one abstained. Immediately after and at the end of the Prologue session, again as per past practice together with the newly accepted procedures to be employed during such in camera-sessions, those same Bd members (employees, students, etc.) were asked to leave. The Faculty member (CBUFA) again refused to leave. My recollection is that the member asked to be sanctioned before he would leave. A motion was moved, seconded and passed by those in attendance requesting that the Board members (sic) conduct be submitted for review and possible sanction. Immediately upon this motion being passed the Bd member excused himself and the in-camera session proceeded. [Emphasis added] [39] Mr. Howley provided the Ethics Committee with a further response, in light of Ms. Allen’s May 18 letter to him, as he had been given the opportunity to do. The Record includes his May 20, 2021, to Kyla Horne, copied to Ms. Allen, Board Chair Sampson and others. Included in Mr. Howley’s submission is the following: The BOG Chair recalls that I refused to leave and requested sanctions before leaving. This is not accurate. After the BOG passed the motion to adopt the practice recommended by the ethics committee I notified the Chair of my intent not to comply with it and to minimize the awkwardness of the situation made note that issues associated with Board member conduct should be referred to the ethics committee. It was not my decision to pass a motion as the other faculty, staff and student members were absent and such a motion would be a violation of the just approved practice. The correspondence further states that everyone knew of this motion referring my conduct to the ethics committee. The accuracy of this statement is in question as faculty, staff and student members were not present when it was moved, seconded, discussed, and passed. Furthermore, it is nonsensical that any board member would request sanctions be imposed on them. It should also be noted that I had volunteered to excuse myself from the remaining board meeting. [Emphasis added] [40] The Record includes a letter dated June 11, 2021, from the Ethics Committee to the Executive Committee of the Board in which it recommended that Mr. Howley be issued a written warning that “refusing to abide by the Board’s modified in-camera procedure would be considered a violation of the Code of Ethics and Professional Conduct of Members of the Board of Governors of Cape Breton University”. The Ethics Committee also recommended that the Board “ensure the complete procedure as adopted on March 5, 2021, is followed at all future Board meetings”. In its letter to the Executive Committee the Ethics Committee noted that Mr. Howley had presented “very thorough and respectful arguments to the Ethics Committee” and that it considered Mr. Howley’s correspondence and legal argument carefully in reaching its decision. The Ethics Committee made the following findings: Findings The Ethics Committee finds that, had Mr. Howley continued to refuse to excuse himself from the March 5, 2021 Board meeting, his conduct would have infringed the Code of Ethics by refusing to acknowledge a conflict of interest and failing to carry out the functions of a Board member with integrity and good faith, acting responsibly. At its March 5, 2021 meeting, the Board convened two modified in-camera sessions: one with the President and external Board members, and one with external Board members, only. The stated topics of discussion were human resources, personnel and labour issues. Mr. Howley refused to acknowledge a conflict of interest with the topics of these sessions. Mr. Howley is a CBUFA member employed by CBU. Union members employed by CBU, by virtue of their position, have a personal interest, directly or indirectly, in the topics delineated for the modified in-camera sessions. It is for this same reason that employees who deal with these issues on behalf of CBU are exempt from union membership – access to and participation in human resources, personnel and labour relations issues would place such employees in a conflict of interest with union membership. The requirement in Section 4.1 of the Code of Ethics that Board members appointed from stakeholder groups (such as CBUFA) must place the best interests of the University foremost and exclusively in their deliberations does not excuse those members from the conflict of interest provisions. Section 10 of the Bylaws provides that the (sic) all Board members are bound by the Code of Ethics. As such, pursuant to Section 5.4 of the Code of Ethics, Mr. Howley had a duty to withdraw himself from these discussions. 5.4 Withdrawal from Deliberations Any Member of the Board or its committees having a conflict of interest – whether disclosed or determined by the Ethics Committee – with respect to an issue under discussion shall withdraw from the meeting where such discussion takes place. Ultimately, Mr. Howley did excuse himself from these sessions; however, the Ethics Committee finds that failure to do so in the future would infringe Section 5.4 of the Code of Ethics. The Board’s in-camera procedure adopted at the March 5, 2021 meeting was duly adopted by a majority of the Board members present at the meeting. Those members constituted a quorum as required y Section 9.12 of the Bylaws, and voting took place in accordance with Section 9.14 of the Bylaws. Board members have a duty to abide by decisions of the Board, even though they may not agree with the majority. Refusal to abide by majority decisions creates instability and disruption on the Board and disrespects the Board’s decision-making process. The Ethics Committee finds that such behaviour would infringe the duties of a Board member as set out in Section 4.1 of the Code of Ethics, to carry out the functions of a Board member with integrity and good faith, acting responsibly. Once again, the Ethics Committee notes that Mr. Howley stated his objection to the Board’s decision, but did not refuse to abide by this decision, as he ultimately excused himself from the modified in-camera sessions. [Emphasis added] [41] On June 11, 2021, the same date as the report of the Ethics Committee wherein it recommended that Mr. Howley be issued a written warning that “refusing to abide by the Board’s modified in-camera procedure would be considered a violation of the Code of Ethics and Professional Conduct or Members of the Board of Governors of Cape Breton University”, Mr. Howley sent a letter to Board Chair Sampson. That letter is referred to by Board Chair Sampson in the Minutes of the June 24, 2021, Executive Committee of the Board. The Record discloses those Minutes, showing Mr. Howley in attendance. The Minutes provide, in part, as follows: 6. New Business 6.1 Report of the Ethics Committee Referring to letter circulated with the meeting material, Ms. Allen provided members with an overview of the undertakings and the meetings of the Ethics Committee since the April board cycle. She recommended approval by the Executive Committee to advancement the recommendations contained within the letter to the full Board. With no comments or questions, it was moved by Ms. Allen, seconded by Mr.[name deleted by this Court], to advance the letter and recommendations to the Board for their consideration. Motion carried. Abstentions: 1 7. Correspondence Mr. Sampson read a letter received from Mr. Howley dated June 11, 2021 addressed to himself and Dr. MacKinnon. The letter requested a detailed list of items to be discussed under agenda item ten of the Prologue session and that board members only be asked to leave the room should a conflict of interest exists. (sic). Mr. Sampson suggested that because these sessions are not planned with an itemized agenda, that the ask of the letter is not obtainable. He acknowledged the frustration that Mr. Howley has with the process but reiterated that the practice and purpose of the session was confirmed during the March 5, 2021 meeting, and that the motion approved was to alleviate concerns that no motions would be passed in this session. It was agreed that this piece of correspondence will be forwarded to Board members as an information item. 8. Review of June 25th Prologue/Public Agendas 8.1 Prologue: It was moved by Mr. [name deleted by this Court], seconded by Dr. [name deleted by this Court] to approve the prologue agenda as presented. Mr. Howley suggested that session ten does not accurately reflect the motion as passed during the March 5, 2021 meeting in that what is going to be discussed should be identified in order for those being asked to leave the room, for any reason, are aware of any potential conflict of interest. He further suggested that the practice should be referred to the Ethics Committee for further review. Motion carried. Nay: 1 [Emphasis added] [42] The Record contains the Minutes of the Prologue (In Camera) Session to the June 25, 2021, Board Meeting. Mr. Howley is recorded as being present. [43] The Report of the Ethics Committee which recommended that Mr. Howley be issued a written warning that refusal to abide by the Board’s modified in-camera procedure would be considered a violation of the Code of Ethics and Professional Conduct for Board Members was tabled before the Board. A motion to accept the recommendations of the Ethics Committee was moved, seconded, and voted upon via secret ballot. The motion was carried with 23 yeas, 2 nays and 3 abstentions. [44] Mr. Howley’s June 11, 2021, letter addressed to Chair Sampson and Dr. MacKinnon was also put before the Board as an information item. [45] The Minutes record that Mr. Howley thanked the Ethics Committee for their work on the matter and “to alleviate any awkwardness on the subject, noted there was no animus on his part”. [46] The Minutes also record: He [Mr. Howley] did however, want to focus on the second recommendation, in that any member having to recuse themselves from any part of a meeting, that agenda item should list the items of discussion and as a matter of protocol, it was moved by Mr. Howley, seconded by Ms.[name deleted by this Court], that the Ethics Committee review the current practices to ensure the approved procedures are being followed and that agenda items for the session are included. Motion defeated with only two votes in favor. [Bolding emphasis that of Secretary of the Board; underlining emphasis that of this Court] [47] The Record discloses that a Notice of Meeting of the Executive Committee of the Board and the full Board was circulated on October 15, 2021. [48] The Record also discloses that by letter dated October 18, 2021, Mr. Howley wrote to Chair Sampson and Board Secretary Richard MacKinnon, Re: “Board Protocol of Faculty/Staff/Student Members Leaving Board Meetings”. [49] In this letter October 18, 2021, Mr. Howley states, in part, as follows: I write in advance of the Board meeting on October 22, 2021. The practice of the Board has been to exclude myself and others from attendance in Agenda Item #10, “Board discussion with President, and Board discussion without President”. On the assumption that the same will happen on October 22, I write to request beforehand that I be provided with detailed reasons for my expected exclusion from the Agenda #10 meetings on October 22. I request a list of the topics and motions to be discussed and reasons why I, as a Board member and Faculty Representative, or in my personal capacity should not be permitted to attend the meeting. I have a statutory right and obligation to participate in Board business, unless prevented by a conflict of interest. If the Board is going to allege I have a conflict of interest in the matters or motions to be discussed on October 22, please provide me with the details of these topics and motions in a timely manner to permit me to either accept that I am conflicted, or exercise my right to challenge the existence of a conflict of interest by seeking a ruling from the Board’s Ethics Committee under Art. 5.3 of the Code of Ethics and Professional Conduct prior to the meeting. It is not a “conflict of interest” to have “conflicting views” on matters in discussions. Of course, Board discussions must be polite and respectful, but conflicting views on issues are to be expected from time to time. For example, if a Board member, internal or external, at a Board meeting wishes to seek faculty’s views on certain issues, I would like to assist him or her. If a Board member wishes to criticize faculty’s position or actions on certain matters, I welcome the airing of those concerns, and will politely try to explain faculty’s position. If the discussion is in the context of a motion that directly affects faculty, I will withdraw from the discussion and the vote. If no motion is on the table, however, and it is simply an exchange of ideas or information, I want to be part of that discussion. That is why I am a member of the Board. As it is now, I have no idea why I am being excluded from these Agenda #10 discussions. I have no idea what information and views are being exchanged, and how that information may have influenced or will influence the external members’ votes on present and subsequent motions. I am getting “half of the story”. I appreciate that the Board’s agenda and topics vary from session-to-session. Each session must be treated on its own merits. For that reason, I am asking in advance of specifically the October 22 session, if the Board intends to exclude me from the Agenda #10 meetings on October 22, what are the topics or motions to be discussed, and why I cannot participate in the discussion of those topics or motions. Please identify what, if any, conflicts of interest are present for me such that I should be excluded from the Board’s discussion. [Emphasis added] [50] The Record contains a response dated October 21, 2021, from Chair Sampson and Board Secretary MacKinnon to Mr. Howley’s October 18, 2021, letter to them. This letter confirms, with thanks, Chair Sampson’s and Secretary MacKinnon receipt of Mr. Howley’s October 18, 2021, letter and states: In response to the matter set forth in your email, I wish to confirm that we will be following the agenda as presented. Specifically, as to your concerns for agenda item 10 (Open Session), I further confirm that we will be following the Board approved recommendations, recently presented by the Ethics Committee during the meeting of March 3, 2021. For your convenience I am attaching a copy of that report. As you will recall, the Ethics Committee considered the in-camera practice and presented information to the Board, which then voted to adopt the stated practice. Further to the Board’s chosen process, the topics of discussion for this session are limited to human resources, personnel and labour issues, and no motions will be tabled. [Emphasis added] [51] The Record contains the Minutes of the Executive Committee meetings of October 21, 2021, and the Board meeting of October 22, 2021. These are the meetings wherein Mr. Howley says “decisions” were made that he now challenges before this Court on judicial review. [52] The relevant part of the Minutes of the October 21, 2021, Executive Committee meeting, attended by Mr. Howley, and included in the Record, record as follows: 6. Correspondence The Chair referred to an email he received from Mr. Howley with regard to his objection to the exclusion of members from Board discussions, of any type, without further information on the topics to be discussed and the reply he sent. For clarification, Mr. Howley noted this letter was an almost duplicate of the letter sent in June but was sent again because the June meeting was move (sic) to an online format. Mr. Howley requested that should specifics for agenda item ten not be provided and the agenda presented, that the correspondence be forwarded to the Ethics Committee for action and that he be advised in writing of what, if anything, will occur. 7. Review of October 22nd Board Prologue/Public Meeting Agendas 7.1 Prologue – No changes. 7.2 Public – No changes [Emphasis added] [53] The Agenda for the Board Meeting of October 22, 2021, under item #10, “Open Session” recorded “10.1 Board Discussion with President” and “10.2 Board Discussion without President”. [54] The Minutes of the October 22, 2021, Prologue (In Camera) Session of the Board meeting were included in the Record. Relevant parts of these Minutes record as follows: 9. Correspondence Mr. Sampson reported that a letter was received from Mr. Howley addressed to the Board Chair and Secretary with regard to the in-camera sessions held during the Prologue sessions. He provided a brief overview of the previous communications, actions taken to date and the content of the letter being that Mr. Howley believes members being asked to excuse themselves ought to be provided with specific items which will be discussed during these sessions. Mr. Sampson responded that the topics discussed will be limited to those outlined in the report of the Ethics Committee dated February 28, 2021 which was accepted by the Board during the March 2021 meeting. 10. Open Session 1.1 Board Discussion without President For this conversation, the President and CBU staff exited the room for an unrecorded conversation absent the President and Senior Management. Mr. Sampson will follow up on any item discussed as needed. 10.2 Board Discussion with President For this conversation, faculty and students exited the meeting, but with no questions or comments for the President the Prologue session will adjourn. [Emphasis added] The Affidavit of Calvin Howley [55] As noted previously in this decision, the Court permitted Mr. Howley to file an Affidavit for reasons stated in the Court’s oral decision dated June 21, 2022. In part, the Court allowed this Affidavit to be filed because certain of Mr. Howley’s stated grounds of judicial review allege that the Executive Committee’s “decision” on October 21, 2021, and the Board’s “decision” on October 22, 2021, each were made in circumstances which “denied the Applicant procedural fairness and/or natural justice”. Such matters would not necessarily be evident in the Record, because the Record did not include a transcript of a recording of either meeting. [56] With respect to the October 21, 2021, meeting of the Executive Committee, Mr. Howley states in his Affidavit: 7. At the October 21, 2021 Executive Committee, the Chair raised my October 18, 2021 letter. The Chair noted that the letter appeared to be a carbon copy of a letter dated June 11, 2021 that I had sent to the Board. The Chair remarked that he did not know if this was a combination of me not understanding or simply refusing to accept the practice of excluding Internal Members from portions of the Prologue. I explained that the October 18 letter was identical to the June 11 letter, but, because the June board meeting had been switched to an online format, the practice of excluding Internal Members was not followed and the June 11 letter was irrelevant. 8. The Chair indicated that he was not going to debate the issue of the exclusion of Internal Members again. I repeated my objection to being excluded from a portion of the upcoming Board of Governors meeting without being informed what conflict of interest might justify my exclusion. 9. I requested that the agenda for the October 22, 2021 Board of Governors meeting be modified to list the items that required the exclusion of the Internal Members, or if it was not modified, that the matter, and my October 18 letter, be referred to the Ethics Committee. I explained that Internal Members cannot assess if they have a conflict of interest requiring their exclusion if they do not know what matters will be discussed. I requested that if the matter was not going to be referred to the Ethics Committee that this denial be put in writing. The Chair stated that as I am a faculty member, any topic involving human resources or labour relations is a conflict requiring my exclusion. 10. The Chair stated that the Board of Governors, the Ethics Committee, and I had spent much time on the topic. He emphatically stated that if I was expecting a different result in raising the matter that it was not going to happen. He said he was losing patience with the repeated request. 11. Despite my request that the agenda be modified, the Executive Committee did not take a vote on the issue and no changes were made. Similarly, the Executive Committee took no vote, or other action, to refer the matter to the Ethics Committee. Rather, the Executive Committee simply continued on with the business of the meeting without finally addressing either issue. The draft agenda for the October 22, 2021 Board of Governors meeting was approved without modification. [57] With respect to the Board of Governor’s Meeting October 22, 2021, Mr. Howley states in his Affidavit as follows: 12. At the October 22, 2021 Board of Governors meeting, the Board of Governors followed the agenda for the Prologue that had been approved by the Executive Committee the day before. When the Board of Governors reached Item 10, the Chair asked the President of the University if he wished to meet with the external Board members. The President did not wish to do so. The entire Board of Governors then had a discussion without the President of the University present, following which the Internal Members were asked to leave by the Board Chair. There was no specific agenda item cited to justify my exclusion. Neither the Chair, nor other members of the Board, gave me information what would permit me to determine if I had a conflict of interest other than the fact that the items to be discussed would be limited to those outlined in the February 28, 2021 Ethics Committee Report. The Internal Members were asked to return to the Board meeting after approximately ten (10) or fifteen (15) minutes and the meeting continued. … The Position of the Parties The Applicant Mr. Howley [58] Mr. Howley frames his grounds for judicial review as unreasonable decisions, made in a procedurally unfair manner by each of the Executive Committee (on October 21, 2021) and the Board (on October 22, 2021). He also says that these decisions were made in contravention of the University Act and ByLaws. [59] Mr. Howley wants this Court to quash and set aside these decisions. He also seeks a declaration that on a go-forward basis, the Board be required to provide “sufficient information to a member of the Board of Governors to allow the member to determine if they have a conflict of interest in a topic under discussion prior to excluding that member from the discussion and/or meeting”. The Respondent Board of Governors [60] The Board says that what Mr. Howley really seeks in this judicial review, is to challenge the reasonableness of the Board’s chosen procedure, as recommended by the Ethics Committee, and as duly adopted by the Board at its March 5, 2021, meeting. The Board says that Mr. Howley is out of time, on judicial review, to challenge as unreasonable, either the procedure itself or the Board’s decision to adopt that procedure. [61] Further, the Board says it met any duty of procedural fairness owed to Mr. Howley in relation to the Executive Committee and Board meetings in October, 2021. It requests that the motion for judicial review be dismissed, with costs to the Board. Law and Analysis Issue 1: What “decision” is at the heart of what Mr. Howley disputes, irrespective of how he has framed it in his Notice of Judicial Review? (a) Is it the Board’s “decision” on October 22, 2021, to exclude Mr. Howley, and other Internal Board members, from ten minutes of the Prologue (In Camera) part of the Board meeting in accordance with the procedure it adopted at its March 5, 2021, meeting, and the Executive Committee’s decision on October 21, 2021, to refuse to amend the agenda for the October 22, 2021, Board meeting in the manner proposed by Mr. Howley? or (b) Is it the decision of the majority of Board members at the Board’s March 5, 2021, meeting to vote on, approve and substantially adopt recommendations made by the Board’s Ethics Committee in a report to the Board dated February 8, 2021, concerning the procedure for the Board to henceforth follow during the Prologue (In Camera) part of the Board Meeting, which procedure excludes Internal Members from the Board meeting for a ten minute period? [62] Mr. Howley says that the Board made an unreasonable decision at its October 22, 2021, Board meeting to exclude him, as an Internal Member of the Board, from that part of the Prologue (In-Camera) part of the Board meeting where the remainder of Board members meet with the President and without the President in the absence of Internal Members of the Board. Specifically, Mr. Howley says that Internal Board members such as himself were not provided with sufficient information to determine if they had a legitimate conflict of interest regarding the topics to be discussed in the in-camera session. [63] Mr. Howley says that the decision to exclude him, as an Internal Board Member from that part of the Board meeting infringed his statutory right to sit as a member of the Board pursuant to s. 6(10(d) of the Act and s.21 of the Bylaws. [64] As is evident from this Court’s review of the Record, Mr. Howley took issue with the Board’s practice of excluding Internal Board members from parts of the Prologue to the public meeting of the Board, well before the October 22, 2021, Board meeting. By letter dated November 3, 2020, in his role as President of CBUFA, and on behalf of the Executive of CBUFA, Mr. Howley wrote to the Chair of the Board to express concerns with respect to the Board’s “protocol of having faculty, staff and student Board members leave portions of Board meetings so that the remaining BOG members can have a one-on-one session with and without President Dingwall”. The Presidents of ANSUT and CAUT sent a joint letter dated November 4, 2020, to Robert Sampson, Chair of the Board expressing similar concerns. [65] These matters were passed along to the Ethics Committee which met to discuss these concerns and as stated in that Committee’s February 18, 2021, report, to “seek information on best practices”. The Committee was in receipt of both Mr. Howley’s November 3, 2020, letter and the joint letter from ANSUT and CAUT. The Committee was alive to Mr. Howley’s concerns about the practice of excluding Internal Board members, in the manner described, and specifically, Mr. Howley’s concern that he was not being given enough information as to why he was in a position of conflict of interest to require his absence in order for him to determine whether he actually had a conflict of interest. [66] The Ethics Committee engaged BoardWorks Consulting Inc. to assist it with addressing these concerns and “best-practices for in-camera sessions” of board meetings. BoardWorks prepared a brief within which it advised the Ethics Committee that “in-camera sessions should not be used for micromanaging or dealing with issues that should be dealt with in regular Board meetings”. BoardWorks recommended that “boards adopt a policy for in-camera sessions so the rules and purpose are clear to all involved”. [67] In its February 18, 2021, report, the Ethics Committee states that BoardWorks also identified specific issues for University Boards. The Ethics Committee states in its report that: The structure of university boards can create “structural conflicts’ or “conflicts of commitment”, as a result of appointment of members from stakeholder groups. This conflict was acknowledged in a recent review of the Memorial University of Newfoundland’s governance culture and practice. This review highlights the conflict of commitment for Board members who also hold positions as officers or officials in unions or student governing bodies. These individuals are placed in a conflict of commitment, as fiduciaries of both the university and the union or student governing body. [referencing “Review of Governance Culture and Practices: Memorial University, at pp. 16 – 18] … At the University of Guelph, the “Good Governance Policy for the Board of Governors” explicitly acknowledges “structural conflicts” inherent in the presence of faculty, staff and student members, as follows: 11.3 Structural Conflicts 11.3.1 The presence of students, staff and faculty Members creates obvious and automatic conflicts. The presence of a structural conflict need not be declared as part of the regular proceedings of the Board, provided that the Board is aware of the conflict. 11.3.2. A structural conflict should not prevent participation in most aspects of the Board’s work unless such participation would affect or case doubt on the independence, integrity or impartiality of the Member, Board or University. “Structural conflicts” or “conflicts of commitment” can translate into real or perceived conflicts of interest when discussion topics centre on matters involving the member’s other commitments or personal interest. [Emphasis added] [68] It is clear from the report of the Ethics Committee that it concluded that “structural conflicts” inherently arise in the constituency make-up of university boards, including the University Board. It is equally clear that the Ethics Committee determined that certain “topics” of discussion, by definition, created conflicts of interest for faculty/staff and students. The Committee identified these “topics” of discussion as being “human resources, personnel and labour issues”, with these topics presenting “a real conflict of interest for faculty/staff and students”. [69] The recommendation of the Ethics Committee was that the Board revise its in-camera policy to, inter alia, convene an in-camera session with the President and external Board members only, and limit topics for discussion at that session to “human resources, personnel and labour issues, which present a real conflict of interest for faculty/staff and students.” [70] This Court does not accept that the Ethics Committee meant to qualify its recommendation that the exclusion of Internal Board members for the discussion of these topics occurs only when such topics “present a real conflict of interest for faculty/staff and students”. Such an interpretation was suggested during oral argument by counsel for Mr. Howley. Reading the report of the Ethics Committee as a whole, it is clear that the Committee concluded that Internal Members had “structural conflicts” or “conflicts of commitment” by definition when these topics were discussed. [71] The Ethics Committee addressed Mr. Howley’s concern that decisions or motions should not be made during parts of the Board meeting where Internal Members are excluded. The Ethics Committee also responded to Mr. Howley’s concern that these “one-on-one” meetings had become lengthy: All in-camera sessions should also have a time limit of 10 minutes, unless, in the discretion of the Chair, an issues arises that requires longer discussion. Modified in-camera sessions [i.e., where Internal Members are excluded] are for information and discussion, only. No decisions will be made and no motions will be passed. [72] The Ethics Committee in its report made these recommendations to the Board for its review. [73] The Court notes that in his cover letter to Board members attaching the February 18, 2021 report of the Ethics Committee, Board Chair Sampson states that the Ethics Committee had undertaken “Extensive research … both relative to our Board’s past practice as well as the opinion of scholars on the topic of “good governance” and the practice of other universities throughout the country. What is clear, is the use of in-camera sessions is a procedure adopted by vast majority of boards of directors, what clearly differs amongst most is the actual process employed; there is no universal standard”. [74] At the Board’s March 5, 2021 Board meeting, the first Board meeting following the receipt of the February 18, 2021 report of the Ethics Committee, the recommendations contained therein were tabled for discussion and review. The Minutes of that Board meeting record that Mr. Howley expressed disappointment about his late receipt of the report. It appears that the Ethics Committee’s report had only been circulated a day or two before the March 5, 2021, Board meeting, and that all of the material it mentioned was not included with it, according to Mr. Howley. Mr. Howley moved that the matter not be tabled until the April Board meeting. However, there was no seconder to Mr. Howley’s motion and therefore it was not considered. [75] This Court’s review of the Record of the March 5, 2021 Board meeting shows that Mr. Howley had the opportunity to express his objections to the report and recommendations of the Ethics Committee, including that Internal Board members “be at least given notice of why they are being excluded through some sort of informative process”. Those portions of the Minutes of the March 5, 2021 Board meeting were reviewed when this Court was reviewing key parts of the Record, but are re-produced here: Mr. Howley further noted that his objections are not personal in any form and that his objections are completely factual in nature. He also objected to the report in that he believes the issue at hand is to do with governance, not ethics, and that the recommendations violate the Ethics Policy as they were developed without consultation of all parties involved; he, nor any other faculty member, was not contacted prior to the development of the report and recommendations. He also noted several other objections and concerns with regard to the cited governance comparisons at other universities, lack of inclusiveness in the process and what the report is suggesting be implemented, what inherent conflict of interest exists, that the practice will normalize a lack of transparency by having closed door meeting which excludes certain members. He also challenged the report noting this being a past practice, noting that a review of minutes will show this is one that was implemented in just the last several years. In conclusion, he strongly apposed (sic) the report and suggested that if the Board wishes to have such sessions that they be held outside the regular agenda and not take away from the regular business of the Board. … Dr. [same member whose name was deleted by this Court, above] supported Mr. Howley’s suggestions that the report and its recommendations are far too broad and that his previous suggestion of having an External Members Committee could be a resolution. He also suggested that in times when a conflict has risen, members should be at least given notice of why they are being excused through some sort of informative practice. [Emphasis added] [76] The motion before the Board was to accept the Ethics Committee’s report and recommendations, with certain amendments, i.e., the deletion of the reference to “These are among the list of topics that must be treated in-camera, according to the Board’s by-laws (Section 9.3)” and to correct what was obviously an inadvertent error in the report of the Ethics Committee that “The Board has an interest in ensuring that members do hesitate to ask a question for raise an issue because of the presence of those who have conflicting interest” to read “… in ensuring that members do not hesitate to ask a question ...”. The motion passed with two (2) “nays”. [77] The business of the Board continued after this motion, in accordance with the Board’s decision to adopt the Ethics Committee’s report and recommendations (with the exception of what is noted above). Board Minute 10.1 under “Open Session”, records, “For this conversation, CBU Faculty and staff exited the room for an unrecorded conversation between external Board members and the President”. Mr. Howley, as an Internal Board Member was not present during that conversation. [78] The Board passed a motion at the March 5, 2021 Board meeting that given Mr. Howley’s notification to the Board Chair of his intent not to comply with the procedure adopted at that meeting whereby Internal Board members be excluded from discussions between External Board members and the President, and discussions with External members without the President, the matter be referred to the Ethics Committee. The Ethics Committee considered the matter, after fully hearing from Mr. Howley and eventually issued a report in June, 2021, with the recommendation that the Board issue a written warning to Mr. Howley that refusing to abide by the Board’s adopted March 5, 2021 procedure, which they termed a “modified in-camera procedure”, i.e., the Prologue portion of the Board meeting which excluded Internal Board members, would be considered a violation of the Code of Ethics. [79] Mr. Howley also asked the Ethics Committee to inquire into his alleged or actual conduct at the March 5, 2021 Board meeting which was alleged to contravene the Code of Ethics. Mr. Howley was advised on March 26, 2021, that it would convene a meeting during the week of April 12 to hear from the parties, including him, in order to develop a recommendation pursuant to ByLaw 6.2. [80] However, before the Ethics Committee completed its investigation of whether Mr. Howley had violated the Code of Ethics during the March 5, 2021 Board meeting, the Board convened its April 23, 2021, meeting. At that Board meeting, Mr. Howley again raised concerns about the agenda providing topics for Agenda Item 10 for the Board discussions, with and without the President, but failing to provide further information in order for him, as an Internal Board member, to determine whether he had an actual conflict of interest. The Minutes of the April 23, 2021 Board meeting record, in that regard: 6. Business Arising from the Previous ‘In Camera’ Minutes Mr. Howley referred to the new governance procedures and the matter being forwarded to the Ethics Committee. He advised that he has sought legal counsel and was advised that his best course of action was to simply note an objection to the agenda item (10 Open Session) because the guidelines do not list a specific list of conflicts that would inform an individual of what the conflict might be and if they were indeed in conflict. He was further advised to comply with the practice, to note his objection for the record, and to inform the Board Chair that he will consult with CBUFA to recommend a grievance be filed or to apply for a judicial review. Mr. Sampson, for the purposes of the minutes, noted that the policy adopted during the March meeting does include a defined list of topics to be discussed during the Open Session and that the matter was forwarded to the Ethics Committee. The Ethics Committee, during the April 22nd meeting of the Executive Committee, respectfully requested more time to review the matter and will be prepared to provide a report during the June meeting. [Emphasis added] [81] Mr. Howley did not apply for judicial review of any decision or procedure followed by the Board at its April 23, 2021 meeting. [82] As reviewed earlier in this Court’s decision, on June 11, 2021, the Ethics Committee recommended that Mr. Howley be issued a written warning as a result of what occurred at the March 5, 2021 Board meeting vis a vis the “modified in-camera sessions”, i.e., one with the President and external Board members only, and one with external Board members only, without the President, with Internal Board members excused. The Ethics Committee in its June 11, 2021 report to the Executive found that: Mr. Howley refused to acknowledge a conflict of interest with the topics of these sessions. Mr. Howley is a CBUFA member employed by CBU. Union members employed by CBU, by virtue of their position, have a personal interest, directly or indirectly, in the topics delineated for the modified in-camera sessions. It is for this same reason that employees who deal with these issues on behalf of CBU are exempt from union membership – access to and participation in human resources, personnel and labour relations issues would place such employees in a conflict of interest with union membership. [Emphasis added] [83] The Ethics Committee also referred to Section 5.4 of the Code of Ethics, stating that “Mr. Howley had a duty to withdraw himself from these discussions”. The Ethics Committee noted that Mr. Howley had stated his objection to the Board’s decision, but did not refuse to abide by this decision, “as he ultimately excused himself from the modified in-camera sessions”. [84] On June 11, 2021, the same date as the report of the Ethics Committee referred to above, Mr. Howley wrote to Chair Sampson requesting that a detailed list of items to be discussed under agenda item ten (10) of the Prologue session for the June 25, 2021 Board meeting be provided and stating that board members only be asked to leave the room should a conflict of interest exist. Mr. Sampson decided to put Mr. Howley’s letter of June 11 before the Board as an informational item at its upcoming June 25 meeting. [85] When the Executive Committee met on June 24, 2021, and reviewed the agenda for the meeting of the Board scheduled to take place the following day, Mr. Howley’s June 11 letter was before it. The Minutes of that meeting provide that Mr. Howley suggested that item 10 of the draft agenda did not accurately reflect the motion passed during the March 5, 2021 meeting. His view was that what would be discussed should be identified in order for those being asked to leave the room be made aware of any potential conflict of interest. The Minutes of the Executive Committee also record that Mr. Howley suggested that “the practice should be referred to the Ethics Committee for further review”. [86] By the June 24, 2021 meeting of the Executive Committee, the Ethics Committee had made its June 11, 2021 report with the finding that pursuant to Section 5.4 of the Code of Ethics, “Withdrawal from Deliberations”, Mr. Howley had a duty to withdraw himself from Board discussions on the topics of human resources, personnel and labour issues. [87] When the Board met virtually (via MS Teams) the following day, on June 25, 2021, it considered the recommendation of the Ethics Committee, as stated in its June 11 report, that Mr. Howley be issued a written warning. The Board, by secret ballot, voted to accept that recommendation. Mr. Howley then, according to the Minutes, stated that “any member having to recuse themselves from any part of a meeting, that agenda item should list the items of discussion”. The Minutes provide that Mr. Howley, “as a matter of protocol” moved, with a seconder, that “the Ethics Committee review the current practices to ensure the approved procedures are being followed and that agenda items are included”. The Minutes provide that this motion was defeated with only two votes in favor”. [88] The Minutes of the Board’s June 25, 2021 meeting record agenda item 10.1 “Board Discussion with President”. However, in his Affidavit, Mr. Howley states “the June Board meeting had been switched to an online format” and that the “practice of excluding Internal Members was not followed”. [89] The next meeting of the Board was scheduled for October 22, 2021. This was to be a in-person meeting. A meeting of the Executive Committee of the Board, also an in-person meeting, was scheduled for October 21, 2021. A notice of that meeting was dated October 15, 2021. [90] As noted in this Court’s review of the Record, by letter to Chair Sampson dated October 18, 2021, Mr. Howley again raised his objection to the practice of excluding himself and other Internal Board members from Agenda Item #10, “Board discussion with President, and Board discussion without President”. Mr. Howley again requested that he be provided with “the details of these topics and motions in a timely manner to permit me to either accept that I am conflicted, or exercise my right to challenge the existence of a conflict of interest by seeking a ruling from the Ethics Committee”. Of course, Mr. Howley’s reference to “motions” was inaccurate, since he well knew that the Board had determined that there would be no motions during these discussion sessions. [91] Mr. Howley’s letter reads as follows: I write in advance of the Board meeting on October 22, 2021. The practice of the Board has been to exclude myself and others from attendance in Agenda Item #10, “Board discussion with President, and Board discussion without President”. On the assumption that the same will happen on October 22, I write to request beforehand that I be provided with detailed reasons for my expected exclusion from the Agenda #10 meetings on October 22. I request a list of the topics and motions to be discussed and reasons why I, as a Board member and Faculty Representative, or in my personal capacity should not be permitted to attend the meeting. I have a statutory right and obligation to participate in Board business, unless prevented by a conflict of interest. If the Board is going to allege I have a conflict of interest in the matters or motions to be discussed on October 22, please provide me with the details of these topics and motions in a timely manner to permit me to either accept that I am conflicted, or exercise my right to challenge the existence of a conflict of interest by seeking a ruling from the Board’s Ethics Committee under Art. 5.3 of the Code of Ethics and Professional Conduct prior to the meeting. It is not a “conflict of interest” to have “conflicting views” on matters in discussions. Of course, Board discussions must be polite and respectful, but conflicting views on issues are to be expected from time to time. For example, if a Board member, internal or external, at a Board meeting wishes to seek faculty’s views on certain issues, I would like to assist him or her. If a Board member wishes to criticize faculty’s position or actions on certain matters, I welcome the airing of those concerns, and will politely try to explain faculty’s position. If the discussion is in the context of a motion that directly affects faculty, I will withdraw from the discussion and the vote. If no motion is on the table, however, and it is simply an exchange of ideas or information, I want to be part of that discussion. That is why I am a member of the Board. As it is now, I have no idea why I am being excluded from these Agenda #10 discussions. I have no idea what information and views are being exchanged, and how that information may have influenced or will influence the external members’ votes on present and subsequent motions. I am getting “half of the story”. I appreciate that the Board’s agenda and topics vary from session-to-session. Each session must be treated on its own merits. For that reason, I am asking in advance of specifically the October 22 session, if the Board intends to exclude me from the Agenda #10 meetings on October 22, what are the topics or motions to be discussed, and why I cannot participate in the discussion of those topics or motions. Please identify what, if any, conflicts of interest are present for me such that I should be excluded from the Board’s discussion. [Emphasis added] [92] Board Chair Sampson responded to this letter, confirming to Mr. Howley that the Board would be following the “Board approved recommendations, recently presented by the Ethics Committee during the meeting of March 3, 2021”. The Court notes that the reference to March 3 appears to have been an error, since the Board met on March 5, not March 3. Chair Sampson reminded Mr. Howley that “the Ethics Committee considered the in-camera practice and presented information to the Board, which then voted to adopt the stated practice”. Mr. Sampson concluded this October 21, 2021, letter to Mr. Howley by stating, “Further to the Board’s chosen process, the topics for this session are limited to human resources, personnel and labour issues, and no motions will be tabled”. [93] The Executive Committee of the Board met, as scheduled on October 21, 2021, in advance of the meeting of the Board the following day. The Minutes of this meeting reflect that Mr. Howley advised that his October 21, 2021 letter (sent via email to Chair Sampson) “was almost a duplicate of the letter sent in June but was sent again because the June meeting was move (sic) to an online format”. The Minutes of the October 21, 2021 Executive Committee meeting also record that “Mr. Howley requested that should specifics for agenda item ten not be provided and the agenda proceed as presented, that the correspondence be forwarded to the Ethics Committee for action and he be advised in writing of what, if anything, will occur” [underlining by this Court]. The agenda was presented to the Board, with “item 10” noted as “Open Session”, “10.1 Board Discussion with President” and “10.2 Board Discussion without President”. [94] The Board meeting proceeded, as scheduled on October 22, 2021. The Minutes record that Chair Sampson reported that a letter was received from Mr. Howley addressed to the Board Chair and Secretary… “with regard to the in-camera sessions held during the Prologue sessions. He provided a brief overview of the previous communications, actions taken to date and the content of the letter being that Mr. Howley believes members being asked to excuse themselves ought to be provided with specific items which will be discussed during these sessions. Mr. Sampson responded that the topics discussed will be limited to those outlined in the report of the Ethics Committee dated February 28, 2021 which was accepted by the Board during the March 2021 meeting.” [95] This Court notes that the Report of the Ethics Committee to the Board was actually dated February 18, 2021, and not February 28, 2021, as recorded in the above-noted Minute. However, nothing relevant to this judicial review turns on that error. [96] The Minutes of the October 22, 2021 Board meeting record that agenda item 10.1 “Board Discussion without President” went ahead, and that “For this conversation the President and CBU staff exit[ed] the room for an unrecorded conversation absent the President and Senior Management”. However, the Minute for Agenda Item 10.2 “Board Discussion with President” records that “For this conversation, faculty and students exited the meeting, but with no questions or comments for the President the Prologue session will adjourn”. [97] Mr. Howley filed his Notice of Judicial Review on November 25, 2021. He seeks judicial review of what he describes as the Executive Committee’s October 21, 2022 decision to “refuse to amend “Prologue Agenda Item 10 to include information with respect to topics to be discussed so as to allow him to determine if he had a conflict of interest and the Executive Committee’s refusal to refer the matter of his objection to the Ethics Committee of the Board” and the decision of the full Board on October 22, 2021, to “exclude the Applicant, as well as the other internal Board members (faculty, staff and student members)”. He says that that “decision” was unreasonable. He says that the “Internal Board members were not provided with sufficient information to determine if they had a legitimate conflict of interest regarding the topics to be discussed in the in-camera session. The Applicant has no knowledge as to what topics the external members discussed”. [98] This Court finds that when the Board excluded Internal Members from Agenda Item 10.1, “Board Discussion without President” and Item 10.2 “Board Discussion with President”, it was following the procedure it had voted on and adopted at its March 5, 2021 Board meeting. The decision it made was to follow that process, as it had at its meetings on March 5, 2021 (following the vote approving the process), its meeting on April 23, 2021 and its meeting on June 11, 2021 (although it appears that because the June meeting was via MS TEAMS, the practice of excluding External Board members for discussion Item 10 did not arise). [99] It is clear that Mr. Howley was not satisfied with the Ethics Committee’s recommendation that topics for discussion only, and not details about those topics, be the trigger for the exclusion of Internal Members of the Board. However, that is the approach that the Ethics Committee recommended after a fulsome review of Mr. Howley’s concerns, those of CAUT and those of ANSUT and its consideration of the recommendations made to it about university board governance by BoardWorks. The procedure recommended by the Ethics Committee was recommended to the Board and Mr. Howley, and any other Board member, had a chance to raise concerns about the recommended practice at the March 5, 2021 Board meeting. Mr. Howley expressed his concerns. The Board voted and accepted to adopt and implement a procedure by which External Board members only would meet in-camera, with and without the President, for discussion purposes only. [100] It appears to the Court that what grounds Mr. Howley’s objections is that he does not think that the Ethics Committee got it right when it came to its recommendation that the general topics of discussion, “human resources, labour relations and personnel matters” in and of themselves mean that as a representative of CBUFA he has a conflict of interest. However, the Ethics Committee made the recommendation which it did, and that recommendation was substantially adopted by the Board at its March 5, 2021 meeting. [101] This Court is not judicially reviewing the Board’s decision to adopt the Ethics Committee’s June 11, 2021 report and recommendation. The Court is not judicially reviewing the Board’s March 5, 2021 decision to adopt the Ethics Committee’s report and recommendation. The only decisions which Mr. Howley asks this Court to review is that part of the Board’s October 22, 2022 decision by which it followed the procedure to exclude Internal Members from Board discussion (for ten minute periods) with and without the President and the Executive Committee’s decision to not amend agenda item 10 to provide details about the topics to be discussed in the absence of Internal Members. [102] The Court notes here that the Applicant’s framing of the Board’s action on October 22, 2021 in following the procedure it adopted on March 5, 2021 as a “decision” does not change the true nature of the Board’s action, which was to follow its own procedure. The same applies with respect to the “decision” of the Executive Committee on October 21, 2021, which was to review the Board agenda in accordance with the procedure adopted by the Board on March 5, 2021. [103] The Court notes that ByLaw 2.9(b) provides that the Executive Committee, in exercising its power to deal with “any and all matters pertaining to the Board which may arise between meetings of the Board”, “shall be governed by established policy and existing directives of the Board”. When the Executive Committee acted as it did at its October 21, 2021 meeting, it was following the Board policy or directive, duly adopted at the Board’s March 5, 2021, that Internal Members had a conflict of interest with Board agenda item 10 by topic. [104] The Court finds that the Board’s October 22, 2021 decision was to follow a procedure it had adopted at its March 5, 2021 meeting. As will be discussed further below, it was entirely reasonable for the Board to do so. Issue 2: If the Court determines that what is at issue is the Board’s March 25, 2021 decision to adopt the Ethics Committee’s recommendations on Board procedure, is Mr. Howley out of time for judicially reviewing that decision i.e., by filing his Notice of Judicial Review outside the twenty-five (25) day period to challenge decisions on judicial review as per Civil Procedure Rule 7.05(1)? [105] Mr. Howley is out-of-time to judicially review the Board’s March 5, 2021, decision to adopt the report and recommendations of the Ethics Committee, as set forth in its February 18, 2021 report, not having filed his Notice of Judicial Review until November 25, 2021, i.e., outside the twenty-five (25) day period for seeking judicial review. Mr. Howley is also out-of-time to have this Court judicially review the recommendations of the Ethics Committee as set forth in its February 18, 2021, report. Issue 3: What is the standard of judicial review which applies to any applicable Board or Executive Committee decision? [106] The standard of review of administrative decisions is presumptively reasonableness, as determined by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). That presumption can only be rebutted where legislative intent indicates that another standard is to be applied, or if the rule of law requires that the correctness standard be applied. [107] The legislature will have indicated that it intended a standard other than reasonableness where (a) the legislature includes specific language on what standard courts should apply (Vavilov, para. 33) or (b) where the legislature has provided a statutory appeal mechanism from an administrative decision to a Court (Vavilov, para. 37). [108] There is no language in the University Act suggesting that anything other than the reasonableness standard applies, and there is no mechanism in the Act to appeal a decision of the Board of Governors or the Executive Committee to the Court. [109] The rule of law requires a correctness standard where constitutional questions are involved (Vavilov, para. 55), where there are general legal questions of importance to the legal system as a whole (Vavilov, para. 60), and where there are questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, para. 64). None of these exceptions apply on this judicial review. [110] The Court finds that the applicable standard of review of Board or Executive Committee decisions is that of “reasonableness”. Issue 4: Did the Executive Committee and/or the Board act unreasonably and/or in violation of the Act or the ByLaws: (a) In the case of the Executive Committee at its October 21, 2021 meeting, by refusing to amend the draft agenda to provide more detail concerning the discussion of the topics for the in-camera discussions without Internal Board members, or by refusing to refer the matter the matter to the Ethics Committee; (b) In the case of the Board, at its October 22, 2021 meeting, by excluding Mr. Howley and other Internal Board members from the in-camera discussions with and without the President, without further information. [111] The University Act establishes the University and its Board as a self-governing body with independence and autonomy. Section 4(f) of the Act stipulates that the Board may make by-laws and rules for the regulation of its own meetings and the procedure and order of business to be followed at meetings, provided these are not inconsistent with the Act or any law of the Province. [112] Mr. Howley argues that the Board made an unreasonable decision at its October 22, 2021 meeting when it excluded him and other Internal Board members from the in-camera discussions with and without the President, including by not providing him with sufficient information to determine whether he had a conflict of interest. [113] This Court finds that the Board made an entirely reasonable decision at its October 22, 2021 meeting to exclude Mr. Howley and other Internal Board members from the in-camera discussion session with and without the President. When it did so, the Board was following its duly voted upon and adopted procedure for such discussion sessions. [114] The Court notes that although not before it for judicial review, the Ethics Committee’s February 18, 2021 report recommended a particular practice for the exclusion of Internal Board members by topic from these in-camera discussions. The topics it considered, in and of themselves, or by definition, which created conflicts of interest for Internal Board Members, were human resources, personnel and labour issues. The Executive Committee had before it for consideration Mr. Howley’s view that topics alone did not afford him sufficient information to know if he had a conflict or not. He wanted more information about what would be discussed and not just the general topic of discussion. The Ethics Committee clearly did not accept Mr. Howley’s position. Nor did the majority of the Board Members when they voted on and accepted the recommendations of the Ethics Committee in this regard. Mr. Howley reiterates his position in his Affidavit filed on this judicial review, when he states in paragraph 12 what occurred at the October 22, 2021 Board meeting: When the Board of Governors reached Item 10, the Chair asked the President of the University if he wished to meet with the external Board members. The President did not wish to do so. The entire Board of Governors then had a discussion without the President of the University present, following which the Internal Members were asked to leave by the Board Chair. There was no specific agenda item cited to justify my exclusion. Neither the Chair, nor other members of the Board, gave me information that would permit me to determine if I had a conflict of interest other than the fact that the items to be discussed would be limited to those outlined in the February 28, 2021 Ethics Committee Report. [Emphasis added] [115] In fact, the Ethics Committee had determined that the topics of human resources, and personnel and labour issues, by definition, created a conflict of interest for Internal Members. Mr. Howley’s fellow Board members had, by a significant majority, accepted the same. Mr. Howley apparently could not accept that his preferred way of identifying whether or not he had a conflict of interest, was the practice chosen by his fellow Board members. That does not make that practice wrong, in violation of the Act or the University By-Laws or anything of the kind. [116] It is not for this Court to impose its views on the Ethics Committee, or the Board for that matter, in terms of what is a “best practice” around in-camera sessions involving topics such as human resources and labour and personnel issues. The Ethics Committee, after review and the input of a consultant, BoardWorks, recommended the procedure which was substantially adopted by the Board. The Ethics Committee clearly determined that these topics, without further information, “present real conflict of interest for faculty/staff and students” when “discussion topics centre on matters involving the member’s other commitments or personal interest”. There may have been other ways in which the Executive Committee could have framed its recommendations, including the manner proposed by Mr. Howley, but there is nothing unreasonable in the Ethics Committee recommending, and the Board voting on, and adopting the practice that it did. [117] However, this Court can only say so many times that the reasonableness of the Ethics Committee’s recommendation is not before the Court for review. Mr. Howley did not request a judicial review of this recommendation; nor did he request review of the Board’s subsequent acceptance of the recommendation at its meeting on March 5, 2021, or the Board’s acting on that recommendation at its March 5 and April 23, 2021 Board meetings. [118] The Board did not violate the Act or its ByLaws when it excluded Mr. Howley from the in-camera discussion part of the Board meeting at issue. The Board was expressly empowered by the Act to make by-laws and rules for the regulation of its own meetings and the procedure at such meetings. The Board By-Laws specifically provide that portions of the agenda of Board meetings may be designated “confidential” and the Board may meet in camera to deal with confidential agenda items. Mr. Howley’s exclusion from the portions of the October 22, 2021 Board meeting followed a procedure duly adopted by the Board at its March 5, 2021 meeting. [119] The fact that the Act provides for the composition of the Board to include four persons appointed by the faculty (such as Mr. Howley) does not mean that such an appointed member cannot have a conflict of interest in any given topic of discussion. That is what took place here. The Board considered that the topics for discussion of human resources, personnel and labour issues created, in and of themselves, or by definition, a conflict of interest for Mr. Howley as an Internal Board member and duly passed a procedure for the exclusion of Internal Members from those topic. For that reason, Mr. Howley was excluded from these discussions. Further, the Code of Ethics provides that, “any Member of the Board … having a conflict of interest – whether disclosed or determined by the Ethics Committee – with respect to an issue under discussion shall withdraw from the meeting where such discussion takes place”. Mr. Howley was issued a written warning by the Board on June 24, 2021, that his failure to abide by the Board’s procedure, i.e., the “modified in-camera procedure” would be considered a violation of the Code of Ethics. [120] Nor did the Executive Committee violate the Act or the By-Laws on October 21, 2021, as alleged by Mr. Howley, by refusing to alter the agenda for the October 22, 2021, in the manner he wanted. Mr. Howley states in his Affidavit, with respect to the Executive Committee’s review of the agenda for the October 22, 2021 Board meeting: The Chair indicated that he was not going to debate the issue of the exclusion of Internal Members again. I repeated my objection to being excluded from a portion of the upcoming Board of Governors meeting without being informed what conflict of interest might justify my exclusion. I requested that the agenda for the October 22, 2021 Board of Governors meeting be modified to list the items that required the exclusion of the Internal Members, or if it was not modified, that the matter, and my October 18 letter, be referred to the Ethics Committee. I explained that Internal Members cannot assess if they have a conflict of interest requiring their exclusion if they do not know what matters will be discussed. I requested that if the matter was not going to be referred to the Ethics Committee that this denial be put in writing. The Chair stated that as I am a faculty member, any topic involving human resources or labour relations is a conflict requiring my exclusion. The Chair stated that the Board of Governors, the Ethics Committee, and I had spent much time on the topic. He emphatically stated that if I was expecting a different result in raising the matter that it was not going to happen. He said he was losing patience with the repeated request. Despite my request that the agenda be modified, the Executive Committee did not take a vote on the issue and no changes were made. Similarly, the Executive Committee took no vote, or other action, to refer the matter to the Ethics Committee. Rather, the Executive Committee simply continued on with the business of the meeting without addressing either issue. The draft agenda for the October 22, 2021 Board of Governors meeting was approved without modification. [121] In all of the circumstances, it was not unreasonable for the Executive Committee to refuse to alter the agenda for the Board’s October 22, 2021 meeting to provide for further information about the topics to be discussed in the absence of Internal Members. As noted earlier in this decision, the power of the Executive Committee was constrained by ByLaw 9.2 which provides that the Executive Committee “shall be governed by established policy and existing directives of the Board”. Nor was it unreasonable for the Executive Committee to refuse to refer Mr. Howley’s objections in this regard to the Ethics Committee. [122] The Ethics Committee had already warned Mr. Howley that failure on his part to exclude himself from the discussions of the topics it determined, by definition, created a conflict of interest on his part, and on the part of other Internal Board members, would constitute a breach of the Code of Ethics. The Board had adopted the recommendation of the Ethics Committees that these topics alone – human resources, personnel and labour issues – created a conflict of interest for Mr. Howley. It was entirely reasonable for the Executive Committee to act as it did, without voting on the matter or taking further action. Issue 5: Did the Executive Committee and/or the Board breach any duty of procedural fairness or natural justice it owed to Mr. Howley in connection with any decisions made by each of them, including by: (a) Excluding Mr. Howley from that part of the in-camera Board Prologue portion of the Board of Governors’ meeting on October 22, 2021; (b) Failing to inform Mr. Howley of the reasons why he had a conflict of interest in connection with the in-camera Board Prologue portion of the October 22, 2021 Board meeting, in order to afford him the opportunity to challenge his exclusion; (c) Failing to approach Mr. Howley’s request to be provide him with reasons for his exclusion with an open mind, i.e., with bias; (d) Failing to meet Mr. Howley’s reasonable expectations by giving him the opportunity to respond to why he was being excluded, based upon conflict of interest; and (e) In the case of the Executive Committee, refusing to refer its refusal to alter the agenda for the Board of Governor’s meeting to the Ethics Committee of the Board of Governors. [123] With respect to the duty of procedural fairness, this Court notes the comments of Fichaud J.A. in C.E.P., Local 141 v. Bowater Mersey Paper Co., 2010 NSCA 19 NSCA, that although the reviewing judge does not conduct a standard of review analysis for procedural fairness, the judge must still determine the content of the duty of fairness and then determine whether that duty was breached: [32] Though the reviewing judge does not conduct “standard of review” analysis for procedural fairness, the judge must still determine the content of the duty of fairness. That duty does not just replicate the courtroom model. The duty’s content is context specific and depends on various factors, including the tribunal’s delegated room to manoeuvre that is contemplated by its governing statute, the nature of the tribunal’s decision and the decision’s importance to the parties: Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, at ¶ 21-31; Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2003] 2 S.C.R. 624, at ¶ 31-32; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at ¶ 79; Moreau-Bérubé, ¶ 74-75; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, ¶ 21-28; Kelly, ¶ 21-33; Creager, ¶ 25, 100-107; Nova Scotia v. N.N.M., ¶ 40-98 and authorities there cited. [124] The Supreme Court of Canada in Vavilov further clarified the content of the duty of procedural fairness, confirming that it is context-specific, with reference to that Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.): [94] Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances [citations omitted]. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself [citations omitted]. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal [citations omitted]. [125] The first Baker factor is “the nature of the decision being made and the process followed in making it”. In Baker, the Supreme Court of Canada discussed this factor, noting that (para. 23): In Knight [citation omitted], it was held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. [126] The procedure adopted by the Board at its October 22, 2021 Board meeting, i.e., to exclude Internal Members from the discussions of the topics which had been identified by the Ethics Committee as creating a conflict of interest for those Internal Members, was a process voted on, and approved by the Board at its March 5, 2021 meeting. What ensued at that meeting in terms of the exclusion of Internal Board members was the Board following its own process. Following that process did not engage or resemble in any fashion judicial or quasi-judicial decision-making. [127] This Court rejects the Applicant’s argument that the action involved an action on the part of the Board which was administrative in nature and accordingly weighs in the middle of the spectrum of the duty of procedural fairness. [128] As noted above, the Act under which the Board operates gives the Board significant autonomy and independence in the governance of its affairs. An adjudicative process for the review and adoption of policies and procedures of the Board is not contemplated by the Act or the University ByLaws. [129] To characterize the “dispute” between Mr. Howley at its highest, it was a dispute over process – a process which the Board had settled at its March 5, 2021, meeting. This dispute falls at the very lowest end of the spectrum of procedural fairness or natural justice owed to Mr. Howley in the circumstances. [130] The second Baker factor is the nature of the statutory scheme. The Board is a creature of statute. The University By-Laws are grounded in the Act. However, as previously noted in this decision, the Legislature afforded the Board broad powers to act independently and with autonomy in the management and conduct of Board activities. The Board owed Mr. Howley a duty of fairness. However, that duty of fairness was constrained by the Board’s own legislative powers to regulate its own meetings and the procedure to be followed at such meetings (s. 3(4)(f)) of the Act. Again, this factor falls at the low end of the duty of fairness – the process the Board followed was its own process. Mr. Howley simply did not agree with it. [131] The third Baker factor is the importance of the decision to the individual affected. The Applicant argues here that he was owed a high degree of procedural fairness and states: The Board’s decision to exclude Mr. Howley was troubling enough to warrant the intervention of external organizations. The Association of Nova Scotia University Teachers and the Canadian Association of University Teachers felt compelled to submit a joint statement expressing their disappointment and concern regarding the Board’s decision to exclude unionized faculty representative from meetings directly to the Board. [132] This “intervention” was in the form of the letter sent to the Board by NSUTA and CAUT dated November 4, 2020. Much had transpired procedurally and substantively since those letters were received by the Board Chair. The Board asked the Ethics Committee to look into the matter, and it did so fully. The Ethics Committee retained BoardWorks to help it navigate a review of corporate and university board best practice relating to the issue of in-camera meetings. The Ethics Committee made recommendations to the Board about the process for in-camera meetings. The Board voted on those recommendations and accepted them. Further, Mr. Howley and been specifically warned by the Ethics Committee that his failure to exclude himself from those parts of the in-camera Board meetings on the topics of “human resources, personnel and labour issues” would constitute a breach of the Code of Ethics. [133] Clearly the issue was important to Mr. Howley, but his interest must be put into context. The importance of the issue to Mr. Howley arises in the context of the Board following a point of order related to process, not the reasonableness of the decision to implement that process or the reasonableness of the process itself. Further, this process was not directly solely at Mr. Howley. It was a process which affected all Internal Board members who the Ethics Committee had determined would have a conflict with these topics. Further, it was a process that the other Board members had voted to follow. Once again, any duty of procedural fairness owed to Mr. Howley in this regard falls at the low end of the spectrum. [134] The fourth Baker factor is the legitimate expectations of the person challenging the decision. Under this factor Mr. Howley argues that he had a legitimate expectation that he would be given sufficient information to determine if he had a conflict of interest at the October 22, 2021 Board meeting. Yet, this argument is undermined by Mr. Howley’s own statement to the Board Chair contained in his October 18, 2021, letter: The Practice of the Board has been to exclude myself and others from attendance in Agenda Item #10, “Board discussion with President, and Board discussion without President”. On the assumption that the same will happen again on October 22, I write to request beforehand that I be provided with detailed reasons for my expected exclusion from the Agenda #10 meetings on October 22. [Emphasis added] [135] Mr. Howley had no legitimate expectation that the Board would not follow the same process that it had at its March 5 and April 23 meetings, i.e., the exclusion of Internal Board members from the topics of discussion determined by the Ethics Committee to create a conflict of interest for him and other Internal Board members. With respect to the June 11 meeting, it appears that since this meeting proceeded virtually and no discussion took place in the absence of Internal Members, although the agenda of the meeting contemplated that it would. [136] In fact, Mr. Howley had every expectation that if he did not exclude himself from these discussion sessions, the Ethics Committee would consider that he had contravened the Code of Ethics. He was specifically so warned, in writing, by the Board at its June 25, 2021 meeting when the Board adopted the recommendation of the Ethics Committee that he be so warned. [137] It is important to note that Mr. Howley submitted a written submission before the meeting of the Ethics Committee reviewing his conduct at the March 5, 2021 Board meeting. He appeared before that Committee and made in-person submissions. He was able to respond to written submissions made by Board Chair Sampson to the Ethics Committee. As noted earlier in this decision, the Ethics Committee, through inadvertence had not initially provided Mr. Howley with Chair Sampson’s submissions. But when it realized that it had not done so, it corrected this error, and sent him Chair Sampson’s submissions, with an opportunity to respond to same. Mr. Howley did so. [138] Mr. Howley obviously did not agree with the procedure that the Board had adopted on March 5, 2021, and he persistently raised his objection to the process thereafter. However, neither his persistence nor his disagreement with the procedure creates an expectation on his part that the Board would, all of a sudden, decide not to follow that duly voted upon procedure at the October 22, 2021 Board meeting. [139] Until such time, if ever, that the Board votes on a new procedure which changes the current procedure of excluding Internal Board members from discussion of the topics which the Board found creates conflicts of interest for Internal Board members, Mr. Howley does not have, in this Court’s view, any legitimate “Baker” interest that the Board at future meetings will depart from its duly adopted process. [140] The final Baker factor is the choice of procedure made by the Board. In Baker, Justice L’Heureaux-Dube stated (para. 27): Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packing Ltd., [1990] 1 S.C.R. 282, per Gonthier J. [141] The Act gives the Board the power to choose its own procedures. The Board determined that Internal Board members should be excluded for the in-camera discussions (with and without the President) at the end of the Prologue session. The Board is entitled to follow the procedure it adopted for these in-camera discussions. The Board considered Mr. Howley’s views and objections and he had an opportunity to raise those concerns at the March 5, 2021 Board meeting. The duty of procedural fairness owed to Mr. Howley under the final Baker factor, once again, is at the low end of the spectrum. [142] Taking into account all relevant Baker factors, this Court finds that Mr. Howley, as a Board Member, was owed a duty of fairness, but in the context at issue, i.e., the decisions of the Executive Committee on October 21, 2021, and the process the Board followed on October 22, 2021, all militate towards rudimentary procedural rights. Mr. Howley was entitled to be afforded the opportunity to voice his concerns at the October 21, 2021 Board meeting. Going back to the March 5, 2021 meeting when the process was voted on and adopted, Mr. Howley was given the opportunity to express his concerns about the process at that meeting. Mr. Howley was able to vote on the tabled recommendation, as was every other Board member. There is no suggestion that the voting process was flawed or invalid in any way. [143] Mr. Howley’s letters to Board Chair Sampson of June 11, 2021, objecting again to not being provided with information about the topics for discussion during the ten-minute sessions when he would be excluded, was before the Board at its June 11, 2021. Mr. Howley’s October 21, 2021, letter (largely the same as his June 11, 2021, letter, but resubmitted again, according to Mr. Howley, because the June 11, 2021 meeting was virtual) was before the Executive Committee of the Board at its October 21, 2021, meeting. Again at that meeting, Mr. Howley asked that his letter be forwarded to the Ethics Committee “for action”. [144] This Court finds that it was reasonable for the Executive Committee to not forward this letter to the Ethics Committee “for action”. Nor did the Executive Committee violate any duty of procedural fairness it owed to Mr. Howley in refusing to do so. The Ethics Committee had already fully reviewed the very same concerns that Mr. Howley expressed in his November 3, 2020 letter when it produced its recommendations on procedure in its June 11, 2021 report. Indeed, the recommendation of the Ethics Committee to the Board (which it accepted by secret ballot) was that Mr. Howley receive a written warning that his failure to follow this process would be a breach of the Code of Ethics for Board Members. [145] The Court does not find that Mr. Howley committed an abuse of process by largely duplicating the contents of his June 11 letter in his October 21 letter. The Court accepts his reasoning, although does not fully understand it, that the duplication of the letter in October related to the June Board meeting proceeding virtually. [146] Mr. Howley has a right to sit as a Board Member in light of his position as President of CBUFA. However, that right does not mean that the Board lacks the authority granted to it by the Act to exclude Mr. Howley, as an Internal Board member, from portions of Board meetings, in accordance with its own rules on procedure. The Board did not breach Mr. Howley’s “statutory rights to sit as a member of the Board”, as alleged in his grounds of judicial review, when the Board excluded Internal Members, including him, following a procedure it validly endorsed, in accordance with its own statutory powers. [147] Nor did the Board approach Mr. Howley’s request that he be provided further information, beyond the “topics” for discussion, at the in-camera sessions without Internal Members with a “closed mind” or bias. The Court reiterates that on October 22, 2021, the Board was following its own procedure. Indeed, Mr. Howley’s behaviour (in terms of his comments) at the March 5 2021 Board meeting was itself referred to the Ethics Committee and the Board, on the recommendation of the Ethics Committee, after it had fully heard from Mr. Howley, issued a written warning to him that his failure to abide by the Board’s procedure to exclude Internal Board members would be considered a breach of the Code of Ethics. [148] The Court notes that the Ethics Committee is required to review the University’s Code of Ethics every five years and recommend changes to the Board as it sees fit. ByLaw 2.13(b) provides that the ByLaw Committee must carry out a review of the ByLaws at the request of Board members, or others having an interest in the affairs of the University. Board rules and procedures are not indelibly set in stone, as seems to have been argued by Mr. Howley’s counsel. They provide what they provide at certain points in time. [149] Mr. Howley does not agree with the Board policy to exclude Internal Members from very small parts of the Prologue of the Board meeting. However, in the view of this Court he has raised nothing on this judicial review relative to decisions made or processes followed by the Board or the Executive Committee on October 21 and 22, 2021, which warrant judicial intervention. [150] Before leaving the issue of procedural fairness, the Court wishes to comment upon jurisprudence submitted by counsel for Mr. Howley on the issue and content of the duty of procedural fairness. None of this case law is directly relevant to the facts and circumstances before this Court on judicial review. [151] The first case, Neville v. Holland College (1995), 137 Nfld. & P.E.I. R. 91, 1995 CarswellPEI 51 (“Neville”), concerned the appeal of a student who was expelled from his studies after being accused of cheating on his final exam. The Prince Edward Island Supreme Court found that the student applicant had been dismissed without having had the opportunity to appear before the board of governors on appeal. The Court noted that a high standard of justice must be met to make a decision that so negatively impacts a person’s career. [152] Counsel for Mr. Howley also refers to the decision of the Nova Scotia Supreme Court in Hill v. University College of Cape Breton, 1991 CarswellNS 397. In Hill, the University President was dismissed after reasons for his dismissal were placed before the Board in his absence and voted on without him having an opportunity to respond. [153] Hill is clearly a completely different decision on its facts than those before this Court on judicial review. Mr. Howley well knew the reasons for his exclusion, and that of other Internal Board members, at the October 22, 2021, Board meeting. He simply did not agree that the Board was following the process that he thought it should follow. Further, in Hill, the Board was sitting more as an adjudicative body to the extent that it was making a decision about Mr. Hill’s employment, which would obviously attract a far greater degree of procedural fairness than the facts before this Court – a Board following its own processes. [154] The Applicant’s counsel also refers to Forestell v. University of New Brunswick (1988), 89 N.B.R. (2d) 1, saying in his written submissions that, “Mr. Howley’s circumstances are similar to those of Ms. Forestell”. The Applicant’s counsel says, in essence, that Forestell stands for the proposition that a board cannot permanently expel one of its members without justifying the expulsion and giving that member an opportunity to respond to the justification. On its face, that proposition seems unassailable. However, the circumstances before this Court involving Mr. Howley do not remotely resemble the situation in Forestell. [155] The Baker analysis is highly contextual. [156] The case law shows that processes which determine issues affecting someone’s livelihood or the ability to pursue a profession generally attract a high level of procedural fairness: see Baker at para. 25; and Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113 where Dickson J., as he then was, stated: …a high standard of justice is required when the right to continue in one's profession or employment is at stake.... A disciplinary suspension can have grave and permanent consequences upon a professional career. [157] This Court sitting on judicial review of procedural decisions of the Board and Executive Committee is not determining issues affecting Mr. Howley’s livelihood. Clearly the content of the duty of procedural fairness owed in cases such as Kane is much higher than the content of the duty of procedural fairness owed to Mr. Howley on the facts before this Court. [158] The Applicant’s counsel also refers to the decision of an arbitrator in University of Quebec in Outaouais, 2019 CanLII 17553. In that case, the arbitrator considered grievances relating to the employer’s interpretation of a section of the University of Quebec Act (citation omitted) which provided (English translation on CanLII) that “The member of the board of directors of a constituent university referred to in paragraph….and who is also a member of its staff, must leave any meeting during the deliberations and voting on any question concerning negotiations relating to the collective agreement or the collective employment contract in lieu which governs it or which governs other members of the staff of the constituent university”. There was a similar provision in the Code of Ethics for the board of directors of the university. [159] The facts before the arbitrator were that two professors had been excluded from discussions which took place at board of directors’ meetings on the basis of “conflict of interest”. The arbitrator appears to have concluded that the provisions of the University Act and Code of Ethics did not apply on the evidence before him. He went on to consider what he called the “notion of personal and distinct interest” which the employer argued had been the reason why the two professors had been asked to leave the meeting. [160] The arbitrator determined that one of the grievers, who apparently was a faculty representative on the board of directors from the department of social sciences, did not have a personal interest in the matter of the hiring criteria for professors in the department of accounting sciences. Apparently there had been a resolution or resolutions passed during this professor’s exclusion, since part of the relief she initially sought, but later withdrew in part, was a declaration that those resolutions be “cancelled”. The second grieving professor was also excluded from part of a board meeting during discussions of the renewal of a fellow professor’s term as dean of research. The arbitrator notes that “there was a clear history of interpersonal difficulties between” the griever and the other professor. On that basis, the arbitrator denied the grievance. [161] The factual underpinnings of these grievances is very different than those before this Court on judicial review. The decisions of the arbitrator are distinguishable on that basis alone. Conclusion [162] Mr. Howley’s motion for judicial review of the Executive Committee’s decision of October 21, 2021, and the Board’s decision of October 22, 2021, are dismissed, with costs to the Respondent Board. The decisions made by the Executive Committee and the Board were reasonable and Mr. Howley was afforded the required extent of procedural fairness and natural justice which these decisions attracted. [163] If the parties cannot agree on costs, the Court will receive written submissions from the parties within thirty (30) calendar days of this decision. Smith, J.