Keep her out.

It is not that difficult an issue. Trustee McNicol was effectively expelled from “caucus”, not from office! It is a parliamentary principle applicable to all elected office holders that the electorate “gives” them the office to hold “at [their] pleasure”. 

Office holders operate within a construct that abides by a defined procedure for decision-making, which respects legislative (statutory) authority and that weighs the concepts of fairness and balance.

In September of 2023, the YCDSB, following receipt and publication of a Report by a third-party investigator, JMJ, on Board website for consideration by trustees, determined that Mc Nicol was “guilty of discrimination” towards her colleagues. The manifestation suggested “hatred” based on ethnic grounds – their Italian origin.

Some trustees – the majority – voted for measures that amounted to expulsion from caucus (they no longer wanted to work with her) but not from office.

This happens, periodically, in parliamentary systems when the leader of a party or the caucus of a party loses confidence in a constituent member. John Nunziata MP was one of the more prominent such examples when he was expelled from the Liberal caucus in 1996 for challenging the leadership on the GST issue. He stayed in elected office into the next election.

Before justices Backhouse, Sachs and Sheard, on April 23^rd, Mc Nicol asked the Divisional Court to re-instate her. Through her lawyer, she claimed that the YCDSB had not followed procedures, had been grossly unfair in the application of sanctions, and, had exceeded its statutory authority.

The justices, in particular Justice Sachs, drilled down on matters of Law (statutory and administrative – procedure). It seemed to this observer they were testing whether either party had “circumvented” or ignored remedies potentially available via complaints filed through Trustee Code of Conduct issues.

Lawyers for the YCDSB would have none of it. They addressed the each of the protestations by Mc Nicol to demonstrate that Board had conducted itself openly, in full transparency, and with a view to protecting the reputation of two entities not immediately represented, as co-respondents, at the hearing: the Italian community of parents, teachers and students whose preponderant numbers ensure the fiscal survival of the Board, and, the authority of the magisterium, whose support constitutes a license for operations.

Interestingly, Mc Nicol’s legal counsel focused on the perceived transgression of her rights as per the Human Rights Code (HRC). The Denominational Rights (DR) exercised under the Constitution, the Charter and the Education Act trump the HRC. Many insist that the code of conduct demanded by observance to principles and values under DR compels a conduct whose standards are relatively more severe than those under HRC.

The YCDSB’s lawyer underscored the matter that respect for the Italian Canadian subjects of the Board could only be properly defended and repaired with an “open airing” of the issues that had led to the confrontation(s), investigations and application of sanctions – expulsion from caucus.

She emphasized that Mc Nicol had never even offered an apology in an effort to make amends. Worse, her lawyer(s) had never contested the veracity of the findings of the investigator, JMJ.

Even when the Board offered the olive branch of permitting her to attend general Board meetings, her reaction was to seek Judicial Review of the sanctions applying decision.

From our perspective, nurtured by close to four years of in person and virtual attendance at Board and Committee meetings, on this issue at least, the five initially harassed and vilified (‘members of organized crime’) trustees –  Cantisano, Giuliani, Iafrate, Marchese and Mazzotta – deserve a vote of thanks for “hanging in”, as does former Chair Alexander.

In an environment where protests have turned into expressions of hatred for other elements of our society, the Tribunal of the Divisional Court should have no trouble in accepting the arguments put forward by the YCDSB’s lawyer.

I suspect anything less would re-reinforce the stereotypical images evoked by Mc Nicol and make the Court complicit.