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An Act to amend The Public Schools Act

R.S.M. 1987 Supp., c. 26

An Act to amend The Public Schools Act

Definition of "resident pupil".

1

Section 1 of The Public Schools Act, being chapter P250 of the Re-enacted Statutes of Manitoba, 1987, is amended by striking out clause (c) in the definition of "resident pupil" and substituting therefor the following clause:

(c) who, by reason of being dealt with under any provision of The Child and Family Services Act or the Young Offenders Act (Canada), becomes a resident of the school division or school district, but not including a Treaty Indian child unless the child qualifies as a resident pupil under clause (a), (b) or (d), or.

Subsec. 29(1) rep. and sub.

2

Subsection 29(1) of the Act is repealed and the following subsection is substituted therefor:

First meeting.

29(1)

The first meeting of the school board of a school division or school district following the regular election of trustees shall take place within 14 days after the election on a day and at an hour to be fixed by the secretary-treasurer of the school division or school district who shall notify each trustee of the date, time and place of the meeting.

Secs. 36 to 39 rep. and. sub.

3

Sections 36, 37, 38 and 39 of the Act are repealed and the following sections are substituted therefor:

Definitions.

36(1)

In this section and in sections 36, 37, 38, 39.1, 39.2, 39.3, 39.4, 39.5, 39.6, 39.7 and 39.8,

"Crown Agency" means a Crown Agency as defined in The Legislative Assembly Act; ("organisme de la Couronne")

"dependant" means

(a) the spouse of a trustee, including a person who is not married to the trustee but whom the trustee represents as the spouse, and

(b) any child, natural or adopted, of the trustee who resides with the trustee; ("personne à charge")

"direct pecuniary interest" includes a fee, commission or other compensation paid or payable to any person for representing the interests of another person, corporation, partnership or organization in a matter; ("intérêt financier direct")

"elector" means a person entitled to vote at an election of members to a school board; ("électeur")

"ordinary resident" means

(a) in the case of a matter relating to an entire school division or school district, an ordinary resident of the school division or school district, and

(b) in the case of a matter relating to a part of a school division or school district, an ordinary resident of that part of the school division or school district; ("simple résident")

"subsidiary" means a corporation that is a subsidiary of another corporation or of another subsidiary. ("filiale")

Subsidiary corporation.

36(2)

A corporation is a subsidiary of another corporation when it is controlled by that other corporation.

Control.

36(3)

For the purposes of subsection (2), a corporation is controlled by another corporation where

(a) securities of the controlled corporation to which are attached more than 50% of the votes that may be cast to elect directors of the controlled corporation are held, other than by way of security only, by or for the benefit of the controlling corporation; and

(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the controlled corporation.

Indirect pecuniary interest.

37(1)

For the purposes of this Act, a person is presumed to have an indirect pecuniary interest in a matter where

(a) the person, or a nominee of the person,

(i) holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock, or

(ii) is a director or officer, of a corporation that has, or a subsidiary of which has, a direct pecuniary interest in the matter; or

(b) the person is

(i) a partner of or employed by, or

(ii) a guarantor or surety for, or

(iii) a creditor of, a person, corporation, partnership or organization who or which, or in the case of a corporation a subsidiary of which, has a direct pecuniary interest in the matter.

Exception for indemnity or expenses.

37(2)

For the purposes of this Act, a trustee is presumed not to have a direct or indirect pecuniary interest in any matter involving the indemnity, expenses or remuneration payable to trustees.

No pecuniary interest in certain transactions.

37(3)

For the purposes of this Act, a person, corporation, partnership or organization is presumed not to have a direct or indirect pecuniary interest in respect of

(a) any contract into which the person, corporation, partnership or organization enters with a school division or school district, on terms common to contracts between other persons, corporations, partnerships or organizations and the school division or school district,

(i) for the supply, provision or sale by the person, corporation, partnership or organization of a utility, service, article or merchandise to the school division or school district, or

(ii) for payment by the school division or school district, for the installation by the person, corporation, partnership or organization, of sewer or water connections or appliances, or

(iii) for the construction, by the person, corporation, partnership or organization, of any building approved by the Public Schools Finance Board and by the school division or school district; or

(b) official notices or advertisements inserted by a school division or school district, or subscriptions held by a school division or school district, at normal commercial rates, in or to a newspaper or other periodical publication of which the person, corporation, partnership or organization is the proprietor or in which the person, corporation, partnership or organization is otherwise interested; or

(c) bonds or debentures of the school division or school district held by the person, corporation, partnership or organization; or

(d) reasonable compensation received by the person, corporation, partnership or organization for providing work, goods or services to the school division or school district in an emergency.

Indirect pecuniary liability.

37(4)

For the purposes of this Act, a person is presumed to have an indirect pecuniary liability to another person or to a corporation, partnership or organization where

(a) the person, or a nominee of the person,

(i) holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock, or

(ii) is a director or officer, of a corporation which, or a subsidiary of which, has a direct pecuniary liability to the other person or to the corporation, partnership, or organization; or

(b) the person is

(i) a partner of or employed by, or

(ii) a guarantor or surety for, or

(iii) a creditor of, a person, corporation, partnership, or organization who or which, or in the case of a corporation a subsidiary of which, has a direct pecuniary liability to the other person or to the corporation, partnership, or organization.

Interest or liability must be significant.

37(5)

For the purposes of this Act and notwithstanding any other provision thereof,

(a) where the direct or indirect pecuniary interest of any person, corporation, partnership or organization in a matter does not exceed the pecuniary interest of an ordinary resident in the matter, the person, corporation, partnership or organization shall be presumed not to have a direct or indirect pecuniary interest in the matter;

(b) where the direct or indirect pecuniary liability of any person to another person or to a corporation, partnership or organization does not exceed the pecuniary liability of an ordinary resident to the same person or to the same corporation, partnership or organization, the person shall be presumed not to have a direct or indirect pecuniary liability to the other person or to the corporation, partnership or organization; and

(c) no person shall be presumed to have a direct or indirect pecuniary interest in any matter, or a direct or indirect pecuniary liability to another person or to a corporation, partnership or organization, unless the value of the pecuniary interest or liability is $500. or more.

Appointments to commissions, boards and agencies.

37(6)

For the purposes of this Act, where a trustee is appointed to serve in an official capacity as trustee on any commission, board or agency, the trustee shall be presumed not to have a direct pecuniary interest in the appointment and shall not be presumed, solely by virtue of that appointment, to have

(a) an indirect pecuniary interest in any matter in which the commission, board or agency has a direct pecuniary interest; or

(b) an indirect pecuniary liability to another person to whom or to any corporation, partnership or organization to which the commission, board or agency has a direct pecuniary liability.

Employees of public bodies.

37(7)

For the purposes of this Act, where a person who is a trustee of a school division or school district is employed by

(a) the Government of Canada or a federal Crown agency; or

(b) the Government of Manitoba or a Crown agency thereof; or

(c) another school division or school district; or

(d) a municipality;

the person shall not be presumed to have

(e) an indirect pecuniary interest in a matter in which the person's employer has a direct pecuniary interest; or

(f) an indirect pecuniary liability to another person to whom, or to a corporation, partnership or organization to which, the person's employer has a direct pecuniary liability.

Contribution to budget.

37(8)

For the purposes of this Act, a corporation or organization shall not be presumed to have a direct pecuniary interest in a matter relating to a school division or school district solely by virtue of the fact that the corporation or organization is liable to pay a portion of the budget of the school division or school district under an agreement entered into with the school board thereof.

Disclosure during meetings.

38(1)

Where, during any meeting, there arises a matter

(a) in which a trustee or any of the trustee's dependants has a direct or indirect pecuniary interest; or

(b) involving the direct or indirect pecuniary interest of any person, corporation, subsidiary of a corporation, partnership or organization to whom or to which a trustee or any of the trustee's dependants has a direct or indirect pecuniary liability;

the trustee shall

(c) disclose the general nature of the direct or indirect pecuniary interest or liability;

(d) withdraw from the meeting without voting or participating in the discussion; and

(e) refrain at all times from attempting to influence the matter.

All official meetings included.

38(2)

In subsection (1), "meeting" includes

(a) a school board meeting; and

(b) a meeting of any committee or subcommittee of a school board or any subcommittee of a committee on which the trustee sits.

Absence from meeting.

38(3)

Where a trustee fails to comply with subsection (1) at any meeting by reason of the absence of the trustee from the meeting, the trustee shall

(a) disclose the general nature of the trustee's direct or indirect pecuniary interest or liability at the next meeting of the same body before which the matter arose; and

(b) refrain at all times from attempting to influence the matter.

Record of compliance.

38(4)

Where a trustee complies with subsection (1), the clerk of the meeting shall record

(a) the disclosure;

(b) the general nature of the direct or indirect pecuniary interest or liability disclosed; and

(c) the withdrawal of the trustee from the meeting;

and the clerk of the meeting shall subsequently file with the secretary-treasurer

(d) the information recorded under clauses (a), (b) and (c); and

(e) a notation indicating whether the meeting in question was open to the public or closed to the public, or was a meeting the minutes of which are not open to the public.

Central record of disclosures.

39(1)

The secretary-treasurer of every school division or school district shall keep a central record for purposes of recording information in accordance with subsections (2) and (3).

Information disclosed at open meeting.

39(2)

Where the meeting referred to in subsection 38(1) was open to the public, the secretary-treasurer shall record

(a) the disclosure;

(b) the general nature of the direct or indirect pecuniary interest or liability disclosed; and

(c) the withdrawal of the trustee from the meeting;

in the central record.

Information disclosed at closed meeting.

39(3)

Where the meeting referred to in subsection 38(1) was closed to the public or was a meeting the minutes of which are not open to the public, the secretary-treasurer of the school division or school district shall record

(a) the disclosure; and

(b) the withdrawal of the trustee from the meeting;

in the central record.

Central record open to public.

39(4)

The secretary-treasurer of every school division or school district shall make the central record referred to in this section available for inspection by any person, without charge, during normal business hours.

Reduced quorum.

39.1(1)

Where by reason of withdrawals from a meeting under subsection 38(1), the number of trustees remaining at the meeting is not sufficient to constitute a quorum, then, notwithstanding the provisions of any Act of the Legislature or any rule of procedure or by-law of the school division or school district, the number of trustees remaining, if not fewer than two, are deemed to constitute a quorum for purposes of discussing and voting on any matter referred to in that subsection.

Application to minister.

39.1(2)

Where in the circumstances referred to in subsection (1) there would be fewer than two trustees remaining at a meeting of a school board, the school board shall apply to the minister who shall refer the matter to The Board of Reference.

Order of Board of Reference.

39.1(3)

Upon hearing an application brought in respect of a matter under subsection (2), The Board of Reference may order that

(a) subsection (1) does not apply to the school board in respect of the matter; and

(b) the school board may discuss and vote on the matter in the same manner as though none of the trustees or their dependants had any direct or indirect pecuniary interest or liability in or in relation to the matter;

subject only to such conditions and directions as The Board of Reference may prescribe.

Referral to school board of school district.

39.1(4)

Where in the circumstances referred to in subsection (1) there would be fewer than two trustees remaining at a meeting of a committee or subcommittee, the committee or subcommittee shall refer the matter to the school board, and the school board shall discuss and vote on the matter in place of the committee or subcommittee.

Voidability of transaction or procedure.

39.2

The failure of any trustee of a school board to comply with subsection 38(1) does not of itself invalidate

(a) any contract or other pecuniary transaction; or

(b) any procedure undertaken by the school board with respect to a contract or other pecuniary transaction;

to which the failure relates, but the transaction or procedure is voidable at the instance of the school board before the expiration of two years from the date of the decision authorizing the transaction, except as against any person, corporation, partnership or organization who or which acted in good faith and without actual notice of the failure.

Statement of assets and interests.

39.3(1)

Prior to taking the oath or affirmation of office, every trustee of a school division or school district shall file with the secretary-treasurer of the school division or school district a statement disclosing assets and interests in accordance with subsection (4).

Notification of failure to comply.

39.3(2)

Where a trustee fails to comply with subsection (1), the secretary-treasurer shall forthwith notify the trustee in writing of the failure, and the trustee shall, within 30 days after receiving the notification, file the statement referred to in subsection (1).

Further statement after acquisition or disposal.

39.3(3)

Where after the filing of a statement under subsection (1) or (2) a trustee or any dependant of a trustee acquires or disposes of any asset or interest of a kind mentioned in subsection (4), the trustee shall within 30 days of the acquisition or disposal file with the secretarytreasurer a further statement disclosing the acquisition or disposal.

Assets and interests that must be disclosed.

39.3(4)

Subject to subsection (5), a trustee of the school board of a school division or school district filing a statement under subsection (1), (2) or (3) shall in the statement disclose

(a) all land in the school division or school district in or in respect of which the trustee or any of the trustee's dependants has any estate or interest, including any leasehold estate and any mortgage, licence or interest under a sale or option agreement, but excluding principal residence property;

(b) where the trustee or any of the trustee's dependants holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock of a corporation, all estates and interests in or in respect of land in the school division or school district held by that corporation or by a subsidiary of that corporation;

(c) the name of every corporation, and every subsidiary of every corporation, in which the trustee or any of the trustee's dependants holds a beneficial interest in 5% or more of the value of the issued capital stock, or holds a share warrant or purchase option in respect of 5% or more of the value of the issued capital stock;

(d) the name of every person, corporation, subsidiary of a corporation, partnership or organization that remunerates the trustee or any of the trustee's dependants for services performed as an officer, director, manager, proprietor, partner or employee;

(e) bonds and debentures held by the trustee or any of the trustee's dependants, excluding bonds issued by the Government of Canada, by the government of any province of Canada, or by any municipality in Canada, and also excluding Treasury Bills;

(f) holdings of the trustee or any of the trustee's dependants in investment funds, mutual funds, investment trust or similar securities, excluding Retirement Savings Plans, Home Ownership Savings Plans, accounts and term deposits held in banks, credit unions or other financial institutions, pension plans and insurance policies;

(g) any interest in property in the school division or school district to which the trustee or any of the trustee's dependants is entitled in expectancy under any trust, and any interest in property in the school division or school district over which the trustee or any of the trustee's dependants has a general power of appointment as executor of a will, administrator of an estate or trustee under a deed of trust;

(h) the nature, and the identity of the donor, of every gift given to the trustee or any of the trustee's dependants at any time after the coming into force of this section, excluding

(i) gifts from a family member,

(ii) gifts disclosed in any previous statement filed under subsection (1), and

(iii) gifts received before the trustee was first elected to the school board; and

(i) the general nature of any contract or other pecuniary transaction entered into at any time after the coming into force of this section between the school division or school district and

(i) the trustee or any of the trustee's dependants, or

(ii) any corporation referred to in clause (c), or

(iii) any partnership in which the trustee or any of the trustee's dependants is a partner, but excluding

(iv) any such contract or other pecuniary transaction entered into before the trustee was first elected to the school board,

(v) any such contract or other pecuniary transaction disclosed in any previous statement filed under this section, and

(vi) any transaction in which the trustee or any of the trustee's dependants is presumed under section 37 not to have a direct or indirect pecuniary interest.

General exemptions.

39.3(5)

For the purposes of this section, no trustee of a school board is required

(a) to disclose any gift worth less than $250., unless the total value of all the gifts from the donor to the trustee and the trustee's dependants during the preceding year exceeded $250.; or

(b) to disclose any other asset or interest worth less than $500.; or

(c) to estimate the value of any asset or interest disclosed; or

(d) to disclose any asset or interest acquired by a dependant of the trustee

(i) prior to January 1, 1984, in the case of a trustee elected before January 1, 1987, and (ii) in the case of a dependant of any other person subsequently elected to the school board, more than two years before the person was elected to the school board for the first time after the coming into force of this section.

Continuing disclosure.

39.3(6)

Where a trustee or any of the trustee's dependants receives as a gift any of the assets or interests referred to in clauses 4(a) to 4(g), the trustee shall, notwithstanding that the gift has already been disclosed in a statement filed under this section, continue to disclose the asset or interest in every statement filed thereunder until the trustee or dependant disposes of the asset or interest.

Statements not available to public.

39.3(7)

Subject to subsections (8) and (9), the secretary-treasurer of a school division or school district shall not

(a) make any statement filed under this section available for inspection by any person; or

(b) reveal the contents of any statement filed under this section to any person.

Exception for trustees.

39.3(8)

Subsection (7) does not apply to a trustee who wishes to inspect, or to be informed of the contents of, any statement filed by the trustee under this section.

Limited disclosure.

39.3(9)

Where any person

(a) provides details of a possible violation of this Act by a trustee of a school board; and

(b) indicates a specific asset or interest in respect of which the possible violation may have occurred;

the secretary-treasurer of the school division or school district shall examine the statements filed by the trustee under this section and shall in writing inform the person whether or not the statements disclose the specific asset or interest.

Insider information.

39.4(1)

No trustee shall use, for personal gain or the gain of any other person, information that is not available to the public and that the trustee acquires in the performance of the trustee's official powers, duties and functions.

Compensation for services.

39.4(2)

No trustee of a school board shall receive or agree to receive any compensation, directly or indirectly, for services rendered or to be rendered by the trustee

(a) to any person, corporation, partnership or organization in relation to any by-law, resolution, contract, proceeding or other matter before the school board or any committee or subcommittee thereof, before any subcommittee of a committee or before any commission, board or agency on which the trustee serves in an official capacity as trustee; or

(b) in order to influence or attempt to influence any other trustee.

Use of influence.

39.4(3)

No trustee of a school division or school district shall directly or indirectly communicate with another trustee or with an officer or employee of the school division or school district for the purpose of influencing the school division or school district to enter into any contract or other transaction, or to confer any benefit, in which the trustee or any of the trustee's dependants has a direct or indirect pecuniary interest.

Right to appear.

39.5(1)

Notwithstanding anything in this Act but subject to subsection (3), a trustee has the same right as any other resident of the school division or school district to appear before a meeting of the school board thereof for the purpose of representing the trustee's personal interests in any matter within the jurisdiction of the school board.

"Meeting" defined.

39.5(2)

In subsection (1), "meeting" includes

(a) a school board meeting;

(b) a meeting of any committee or subcommittee of a school board or any subcommittee of a committee; and

(c) a meeting of any commission, board or agency that has jurisdiction in the matter.

No right to vote.

39.5(3)

Where a trustee sits on any body that is considering a matter referred to in subsection (1), the trustee shall not vote on the matter.

Disqualification for violation.

39.6(1)

A trustee who violates any provision of this Act is disqualified from holding office and the trustee's seat on the school board becomes vacant as of the time of the declarations made under section 39.7.

Disqualification for failure to file statement.

39.6(2)

The failure by a trustee to file a statement under subsection 39.3(1) is not a violation within the meaning of subsection (1) of this section, unless the trustee further fails to file the statement under subsection 39.3(2).

Effect on other business.

39.6(3)

Subject to section 39.2, no decision or transaction, and no procedure undertaken by a school division or school district with respect to a decision or transaction, is void or voidable by reason of the violation of a provision of this Act by a trustee.

Application by secretary-treasurer to Q. B.

39.7(1)

Where it is alleged that a trustee has violated a provision of this Act, the school board of which the trustee is a member may direct the secretary-treasurer of the school board's school division or school district to apply by originating notice to a judge of the Court of Queen's Bench for a declaration that the trustee has violated a provision of this Act.

Application by elector to Q.B.

39.7(2)

Where it is alleged that a trustee has violated a provision of this Act, and if there is no previous application outstanding or determined on the same facts, an elector may apply ex parte to a judge of the Court of Queen's Bench for authorization to apply for a declaration that the trustee has violated a provision of this Act.

Affidavit and security for application.

39.7(3)

An elector who files an ex parte application under subsection (2) shall

(a) file an affidavit showing details of the alleged violation; and

(b) pay into court the amount of $300. as security for the application.

Summary dismissal or authorizing of application.

39.7(4)

Upon hearing an ex parte application made under subsection (2), the judge may

(a) dismiss the application and order forfeiture of all or part of the security referred to in clause (3)(b); or

(b) authorize the applicant to apply to another judge of the Court of Queen's Bench for a declaration that the trustee has violated a provision of this Act.

Disposition after hearing.

39.7(5)

Upon hearing an application made under this section for a declaration that a trustee has violated a provision of this Act and such evidence as may be adduced, the judge may

(a) declare that the trustee has violated a provision of this Act; or

(b) refuse to make the declaration;

and may make the declaration or refuse to make the declaration, with or without costs.

Penalty for violation.

39.7(6)

Where a judge declares under subsection (5) that a trustee has violated a provision of this Act, the judge

(a) shall declare the seat of the trustee vacant; and

(b) may, where the trustee has realized pecuniary gain in any transaction to which the violation relates, order the trustee to make restitution to any person, including the school division or school district, affected by the pecuniary gain.

Unknowing or inadvertent breach.

39.7(7)

Notwithstanding anything in this Act, where a judge finds that a trustee violated a provision of this Act unknowingly or through inadvertence, the trustee is not disqualified from holding office and the judge shall not declare the seat of the trustee vacant in consequence of the violation.

Election not to preclude application.

39.7(8)

An application for a declaration that a trustee has violated a provision of this Act may be brought under this section notwithstanding that the trustee against whom the declaration is sought has resigned or did not seek re-election or was not re-nominated or was re-elected or defeated subsequent to the alleged violation of this Act.

Application for restitution.

39.7(9)

Notwithstanding anything in this Act, where any person, whether the person is or was a trustee or not, has realized pecuniary gain in any transaction to which a violation of this Act relates, any person affected by the pecuniary gain, including any school division or school district, may apply to a court of competent jurisdiction for an order of restitution against the person who has realized the pecuniary gain.

Limitation period for declaration.

39.7(10)

No application for a declaration that a trustee has violated a provision of this Act shall be brought under this section more than six years after the date of the alleged violation.

Limitation period for order of restitution.

39.7(11)

No application for an order of restitution under this section shall be brought more than six years after the date of the transaction that resulted in the alleged pecuniary gain.

No other proceedings.

39.7(12)

Proceedings to declare the seat of a trustee vacant, or for an order of restitution, in consequence of a violation of this Act, shall be had and taken only under the provisions of this Act and not by way of application for a writ of quo warranto or by a proceeding under any other Act of the Legislature or otherwise.

Declaration that seat vacant.

39.8

A school board of a school division or school district shall declare a seat vacant and, subject to section 26, order an election to fill that seat when the trustee elected to that seat

(a) is deceased; or

(b) has submitted a resignation in writing to the secretary-treasurer of the school division or school district; or

(c) has failed to attend three consecutive regular meetings of the school board without authorization of the school board by resolution recorded in the minutes; or

(d) has been disqualified from holding office under this Act; or

(e) ceases to be a resident of the school division or school district.

Subsec. 43(1) am.

4

Subsection 43(1) of the Act is amended by striking out the words "one mile" where they appear therein and substituting therefor the figures and word "1.6 kilometers".

Subsec. 43(3) am.

5

Subsection 43(3) of the Act is amended by striking out the figures and word "1/2 mile" where they appear therein and substituting therefor the figure and word ".8 kilometers".

Subsec. 43(6) am.

6

Subsection 43(6) of the Act is amended by striking out the figures and word "1/2 mile" where they appear therein and substituting therefor the figure and word ".8 kilometers".

Subsec. 79(2) am.

7

Subsection 79(2) of the Act is amended by striking out the words " for pilot courses" where they appear in clause (e) thereof.