Divisional Court File No.: 91/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’Driscoll, Herold AND LINHARES de SOUSA JJ.
IN THE MATTER OF the Education Act, R.S.O., 1990, C. E2
AND IN THE MATTER OF the Statutory Powers Procedure Act, R.S.O., 1990, C. S22
AND IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, C. J1s.2(1)
AND IN THE MATTER OF the Upper Grand District School Board
AND IN THE MATTER OF the Arthur District High School
B E T W E E N:
LOUISE DINGMAN, MARY SCHMIDT, GERALD TOWNSEND, STEVE O’NEILL, MONICA LANDONI, MARY JO MARSHALL, NANCY THRUSTON, BONNIE ROONEY, JOYCE SCHNURR and JACK WALSH
Donald G. Kidd and Ian Roland, for the Applicants
Applicants
- and -
THE UPPER GRAND DISTRICT SCHOOL BOARD
Stephen F. Gleave and George Avraam, for the Respondent
Respondent
HEARD at Toronto: March 27, 28, 2003
1The Applicants seek judicial review of the decisions of the Respondent, the Upper Grand District School Board (School Board) made on November 28, 2000 and confirmed on February 27, 2001 to close the Arthur District High School (ADHS). The Applicants have applied for an order quashing the School Board’s decision and challenging the statutory validity, propriety and the procedural fairness of the decisions of the School Board.
2The School Board was created on January 1, 1998 as a result of the amalgamation of the former Dufferin County and Wellington County Boards of Education pursuant to the Fewer School Boards Act. S.O. 1997, c. 3. The School Board has 10 Trustees representing different areas of the amalgamated region. Five of the ten Trustees are from rural constituencies.
3In a separate decision, not under review, the School Board ordered the closing of the high school in Mount Forest. The impugned decisions of the School Board ordered the closing of ADHS and moving its student population to a new high school to be built in the Village of Mount Forest, approximately 20 kilometers north of Arthur, where it would be joined with the student population of the existing Mount Forest High School. The high school student population of the Village of Arthur would, of course, have to be bused to the new school in Mount Forest on each school day.
4The decision of whether to close ADHS or not has been an extremely intense subject of discussion in the Village of Arthur since 1998 when the possibility was first raised by the School Board. Because of the important role of the high school in the community, it is an issue that is close to the hearts and minds of the residents of the Village of Arthur and its environs. The decision of the School Board was hotly debated and politically charged. As can be seen from the Minutes of the School Board meetings that passed the resolutions to close ADHS and to confirm the decision to close ADHS, the votes taken on the question were very close indeed.
5In 1999, there were approximately 300 high school students enrolled at ADHS, which has a student capacity of 273. In the same year, the existing Mount Forest High School had a student enrollment of approximately 416. Its student capacity is 461. The student enrollment of the new Mount Forest High School will then be approximately 727. This number is less than the optimum number of students (800-1100) for any one school, as declared by the Board.
6The Applicants are all parents of children at ADHS, residents of the Village of Arthur or the surrounding area. Some of them are former students of ADHS. The Village of Arthur is a small rural/farm community of approximately 2,000 people located at the intersections of former Highway 6 and 9 in the north end of Wellington County. It has had just one high school for 111 years. The high school is a key element in the lifeblood of the community socially, culturally, recreationally and commercially.
7Counsel for the Applicants argued that the procedure and process undertaken by the School Board leading up to its decision to close ADHS did not comply with the statutory duties imposed on the School Board under ss. 8(1)26 and 171(1)7 of the Education Act, R.S.O. 1990, c. E. 2 and Ontario Regulation 444/98, 1. to 4. In 1992, the Ministry of Education created guidelines to be followed by a school board intending to close a school. In 1998, the School Board created Accommodation Review Policy 305 to deal with the new formula for the funding of Ontario schools and the Ministry guidelines for closing a school. It was the position of the Applicants that the School Board, in arriving at its decision to close ADHS, did not comply with the spirit nor the intent of the Ministry guidelines nor did it even respect its own Accommodation Review Policy 305.
8Counsel for the Applicants argued that, as a result of the School Board’s conduct, the Applicants were not able to participate meaningfully in the decision-making process, thereby rendering the whole procedure unfair.
9On the ground of unfairness, the thrust of the oral submissions of Counsel for the Applicants, although it did not appear in his written submissions, was that in three areas in particular, the School Board failed to produce the necessary information, reports and analyses, as it was statutorily mandated to do under the Ministry guidelines and policies as well as its own Accommodation Review Policy 305 to permit the community to meaningfully participate in the debate.
10The three areas were:
(1) Busing costs, routing and travel time. How would it effect the students in the ADHS area?
(2) Academic Program. How would the existing satisfactory academic program be affected, considering that the new combined school enrollment would still be below the declared optimum enrollment of 800 to 1,100 students?
(3) Community Survival. How would the closure of ADHS effect the community and its activities on a social, educational, recreational and cultural plain?
11It was further argued in the written materials, although not raised in oral argument, that the School Board, throughout the process preceding the final decision on November 28, 2000 and the confirmation decision on February 27, 2001, demonstrated a clear and unwavering bias and prejudgment in favour of closing ADHS, regardless of the facts and merits of keeping that high school open.
12The Respondent contests the application submitting that procedural fairness was followed by the School Board in making the decision to close ADHS. The School Board’s position is that it established a procedure in accordance with the Education Act, which permitted the community of ADHS to have meaningful participation in the School Board’s decision of whether to close the school or to keep it open. Counsel for the Respondent argued that, throughout the process, the School Board kept an open mind to all reasonable options. Accordingly, the School Board submits that it has complied with its legal requirements when it decided to close ADHS.
13In addition, the School Board has brought a motion to dismiss the Application on the ground of delay. The decision to close ADHS was made on November 28, 2000 and confirmed on February 27, 2001. The Notice of Application for Judicial Review was served on December 14, 2001. The Application was not perfected until December 11, 2002. Counsel for the Respondent argued that, if the School Board’s decision is quashed, it will have suffered harm in the loss of the money that it has already expended ($1.8 million) in the planning and building of the new school and in the loss of two years of time for planning during which it could have been directing its efforts to addressing other school accommodation issues in other communities. The Applicants never sought injunctive relief prohibiting the School Board from proceeding post February 27, 2001.
14While recognizing the significance of the School Board’s decision to close ADHS to the Applicants’ community, counsel for both parties did not contest the fact that it is not the responsibility of this Court to enter into the merits of the financial and political decisions of the School Board. The mandate of this Court on the application for judicial review was concisely and aptly stated by A.G. Campbell J. in Ross v. Avon Maitland District School Board, [2000] O.J. No 1714:
It is not within our power to second guess the financial and political decisions of elected officials who act within their legal jurisdiction. The merits of the Seaforth school closing, the rightness or the wrongness of these decisions are issues of community concern, finance and politics beyond the limited reach of this unelected court. It is not for the court to say whether the decision to close the school is right or wrong. The narrow mandate of the court is to inquire whether the school closing is authorized by law, whether there was adequate public consultation as required by law, and whether the decision is taken through a process that is procedurally fair.
15In Ross, supra, A.G. Campbell J., for the Divisional Court, agreed with the conclusion of Heeney J. (2000), 24 Admin. L.R. (3d) 112 on an interim motion that the Avon Maitland District School Board, in voting to close the only high school in Seaforth, Ontario, did not act with procedural fairness towards the Respondents and it failed to provide the necessary information as well as the time and opportunity to explore and develop reasonable alternatives.
Heeney J. discussed the various aspects of fairness in the context of a school closing and the devastating and traumatic effect it can have on a community:
[28] It is well established that it is not open to the court to consider whether the decision of the Board to close SDHS was right or wrong, wise or foolish. The central consideration is whether the Applicants were treated fairly or unfairly in the decision-making process: Fisher Park Residents Association Inc. et al v. Ottawa Board of Education (1983), 1986 2569 (ON SC), 57 O.R. (2d) 468 (Ont. H.C.J.).
[36] In considering whether the Applicants have demonstrated a strong prima facie case, it is necessary to ask the following question: can the closure decision be quashed simply because the Board's closure policy failed to comply with Ministry guidelines, even where the actual consultation process followed by the Board did comply? As noted earlier, the power of the Board to close schools comes from s. 171(1)(7) of the Education Act. It empowers a board to "close schools in accordance with policies established by the board from guidelines issued by the Minister". There are two distinct statutory elements to this section. The first is that closing schools is only to be done in accordance with policies established by the board. The second is that those board policies must comply with the Minister's guidelines.
[37] It is the closure policy established by the Board, and not the ad hoc procedure followed in any given case, that is of paramount importance, because it is through those policies that the statutory power to close schools is derived. The Board only has the power to close schools in accordance with the policies established by the Board. If, as I have found, those policies did not comply with Ministry guidelines, it follows that the Board lacked the statutory authority to close the school in question, and I so conclude.
[41] As will be discussed in more detail below, closing the only high school in a community has a devastating impact on that community. Because of that, the duty of fairness demanded in such a case falls at the high end of the spectrum. Fairness demands that each interested party be given an equal opportunity to participate in the decision- making process and influence the decision to be made. In this case, the Seaforth committee was not given the opportunity to influence and participate in the process that led to the decision to recommend that its school be studied for closure, an opportunity that was given to committees from other communities. By denying Seaforth the position of influence and participation that was afforded to other interested parties, the Board, in my view, breached its duty of fairness.
[49] Given the severity of the impact of the decision to close SDHS on the community of Seaforth, I am of the opinion that the duty of fairness owed by the Board included the duty to permit the Seaforth committee to explore reasonable alternatives that would generate the required savings, without being restricted to the seven schools on the Board's list. That duty was breached by the Board.
[57] In my view, the right to be heard includes the right to the reasonable disclosure of information and documentation that will enable the affected party to fully develop and present the viewpoint that he or she wishes to be heard. I adopt the following passage from the Newfoundland Court of Appeal's decision in Elliott v. Burin School Board District No. 7 (1998), 1998 18114 (NL CA), 13 Admin. L.R. (3d) 91 (at 106):
The content of the duty must therefore be flexible to meet the exigencies of the case. Although, as noted in Knight, this must be a balance between fairness and efficiency, what must not be compromised in any case is the necessity that the notice, consultation and input elements, however structured, not be perfunctory and formalistic. They must be meaningful and realistic, designed to ensure that there is a real opportunity for persons affected to take reasonable steps to try to influence the decision. While that may not necessarily require full disclosure of all background material and every scrap of relevant paper (in the traditional natural justice sense of knowing the full case one has to meet), sufficient of such information and material would generally have to be made available, at least in summary form, so that the persons affected will have a context in which to make their input, so that their representations can be directed to the real issues under active consideration by the board. This might be especially the case where it would be important for those having input to know how, if at all, the particular proposed closure fits into any broader scheme that is contemplated for reorganization or rationalization of the system generally.
[58] In my view, the material that was sought by the committee was necessary to enable them to understand how the proposed closures fit into the overall process of rationalization that was being driven by the constraints of the funding formula. It was necessary to give them the context and financial data required to fully develop and present their position to the Board, in order to give them a realistic opportunity to influence the Board's decision. In failing to provide that information, the Board breached its duty of fairness.
[61] …The right to be heard and to play a meaningful part in the decision-making process is illusory unless it includes the right to explore and develop reasonable alternatives, the right to reasonable disclosure of information and documentation necessary to fully develop and present the position that the affected party wishes to be heard, and the right to be granted sufficient time to accomplish the foregoing. The Board breached its duty of fairness in all three respects.
16In Bezaire v. Windsor Roman Catholic Separate School Board (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737, an application for judicial review was allowed where the Windsor Roman Catholic Separate School Board, in closing a school, failed to follow its policies in conformity with the Ministry guidelines. The School Board in question was found to have completely disregarded “the consultative process which the board espoused and the Ministry of Education required”. At page 752 the Court indicated:
Ambiguous though they are, the guidelines read as a whole are clearly premised on the principle that the closing of a school is the business of the community and the community, one way or another, must be consulted. The requirements of publicity, public sessions, and the importance of factors such as the social, cultural and recreational impact of a closure on the community, make it clear that real community consultation is a condition precedent to a valid decision.
p.753:
Subsequently, members of the affected community were given a pro forma opportunity to present their views and alternatives. The decision having been previously made, these were peremptorily rejected. When a process of this nature is followed, it is understandable that those adversely affected will feel that their views have been completely ignored and that they have been treated unfairly. The perception, at least, is that the expression of the community values is entertained for the sole purpose of meeting the minimum technical requirements of procedural correctness required by the courts, without any meaningful participation in the actual decision- making.
The board was under the obligation to make and follow policies which conformed with the guidelines for school closure policy. It is apparent that the Ministry guidelines contemplate, at the very least, the provision of some mechanism for input from interested citizens prior to any decision being taken to close a school.
17In Fisher Park Residents v. Ottawa Board of Education (1986), 1986 2569 (ON SC), 57 O.R. (2d) 468 at 477, Eberle J. faced the task of judging a School Board’s conduct in its decision to close a school in the context of the School Board’s adopted policies in response to guidelines issued by the Ministry of Education. Eberle J. stated:
I think it is reasonable to infer therefore that the underlying aim of the Legislature was to ensure that the closure decision was taken according to certain procedural norms, allowing for reasonable time for an adequate input from the electorate. These matters were to be dealt with by each board in accordance with its own views of what was appropriate for it and its constituents. Accordingly, it appears to me that the policy developed by an individual board is not to be regarded nor scrutinized in the same way as a legislative enactment would be. In my view, the amendments envision a board's policy as a means of obtaining a fair procedure for the closing of schools. Thus, the substance of what is done is crucial rather than the technicalities. It must always be borne in mind that we are dealing with an administrative or management function and not with a judicial function, nor quasi-judicial function.
p. 477:
The merits or otherwise of the closure of Fisher Park School are not open for my consideration. It is solely the Board of Education which is given that obligation.
p. 478:
It seems to me that the real question that ought properly to be put is whether or not the plaintiffs were given reasonable and adequate time to deal with the proposed closure and to make their views known with respect to the proposal.
18On the facts before him, Eberle J. could not find any unfairness or prejudice to the plaintiffs arising from the procedure adopted by the School Board even in the face of any shortcomings in the Board’s policy in relation to the Ministry’s guidelines.
19In Fratia v. Toronto Catholic District School Board, [2001] O.J. No. 3197, despite legal deficiencies found to exist in the composition of the School Accommodation Review Area Committee (SARAC), the process followed was still found to be fair. Epstein J. stated at p. 7:
For these reasons I find that the deficiency in the composition of the SARAC is not fatal to the decisions under review. First, against the background of the Board's efforts to ensure that the membership requirements were met and in light of the wording of the legislation, the lack of conformity with the Policy did not deprive the SARAC of its authority. Secondly, in the circumstances and in view of the membership of the SARAC and the input received and considered from all quarters, the applicants were not, by reason of this discrepancy, deprived of an opportunity to participate meaningfully in the decisions under review.
20In Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 1997 16241 (ON CA), 36 O.R. (3d) 41 (Ont. Div. Ct.), the Divisional Court examined the conduct of the Health Services Restructuring Commission in arriving at its decision to order the closure of a non-denominational hospital and the restructuring of a denominational hospital operated by the Roman Catholic Church. In describing the Court’s role in the decision, A.G. Campbell J. stated, for the Court, at p. 44:
Hospitals are vital community institutions. They attract strong loyalties and the prospect of hospital closure engages strong feelings within the community. These deeply held views and convictions are reflected in the evidence in this case.
The complex process of restructuring the health care system is difficult not only for the Health Services Restructuring Commission but also for each community affected by its work.
The court's role is very limited in these cases. The court has no power to inquire into the rights and wrongs of hospital restructuring laws or policies, the wisdom or folly of decisions to close particular hospitals, or decisions to direct particular hospital governance structures. It is not for the court to agree or disagree with the decision of the Commission. The law provides no right of appeal from the Commission to the court. The court has no power to review the merits of the Commission's decisions. The only role of the court is to decide whether the Commission acted according to law in arriving at its decision.
21The Divisional Court in Pembroke, supra, went on to find that the Restructuring Commission did act according to law in arriving at its decision. At p. 48, A.G. Campbell J. stated:
It is clear that the Civic knew in more than general terms what it had to meet in relation to denominational governance and that it focused explicitly and directly on the very issues it raises now in this court. It addressed on a number of occasions the very things it now raises in this court, particularly the compatibility of the Roman Catholic governance of the General with the appropriate provision of all the health services needed by the community.
Civic had a full opportunity to address the real issues at stake. There was no mystery. Civic knew about and addressed the very issues of Roman Catholic governance that it now addresses in this court. There were no new grounds. Civic was not kept in the dark about the essential issues. It knew, more than generally, what it had to meet. It was given every opportunity, and it exercised every opportunity, to meet what it had to meet.
22The parties to this application have presented substantial material documenting and detailing the discussions, reports, delegations and events leading up to the final decision of the School Board on November 28, 2000 to close ADHS. An examination of the material indicates that the possibility of closing of ADHS and the reasons why have been in the public domain for discussion along with other alternatives since the fall of 1998. Based on the evidence presented and the oral submissions of counsel, we have examined the conduct of the School Board in the process and procedure that it undertook in arriving at its final decision. We have examined its conduct in the records of its public meeting as well as the records and meeting of its Operations/Accommodation Planning Committee. In addition to this, there was the work and meetings of the North Wellington/Centre Wellington Secondary Accommodation Review Subcommittee, specifically created by the School Board to assist it in the development of a long range plan for the region of the location of ADHS in order to start the public consultation process outlined in the School Board’s Policy 305.
23The work of the Accommodation Review Subcommittee took place from January to April 2000 involving a number of meetings both with the public and school councils in the targeted areas. It is clear from the documents of the Accommodation Review Subcommittee that a number of the Applicants were actively involved in its work and in presenting material to the Subcommittee for consideration. The Applicants actively participated in delegations making presentations for the School Board’s consideration.
24We have examined the numerous reports and material that became part of the public consultation process. We have also examined the information contained in those reports relating to programs, finances, enrolment, population, facilities and transportation. Included in this is the 46 page written submission entitled The Arthur Community and School’s Committee Vision for the Centre/North Wellington’s Educational Facilities, provided to the School Board by the Arthur Community and Arthur High School Council arguing against closure of the ADHS. The Arthur DHS School Council also submitted 41 questions to the School Board for answers. Based on the material filed, the School Board provided answers to all 41 questions. An examination of all of this material appears to indicate that the troubling concerns relating to busing, academic programs and the effect on the community of the school closing, the very concerns that were raised in the oral arguments of Counsel for the Applicant, were addressed and brought to the attention of the School Board and the public.
25The material also indicates that in May 2000, additional scenarios were added to the list of alternatives for the School Board’s consideration. In September 2000, a new scenario, the “lighthouse” model, which depended on keeping ADHS open with the use of technology-based delivery methods, was also approved by the Board for consideration as an alternative.
26The material further indicates that in October and November 2000, after the preceding process, the Operations/Accommodation Planning Committee passed a motion of intent to close ADHS and build the new combined school in Mount Forest. The School Board then confirmed this decision on November 28, 2000. After the election of six new Trustees in December 2000, the School Board, by way of motion, was asked to reconsider its decision to close ADHS. Further reports were presented and delegations were heard. The Applicants participated in this. The motion to reconsider was defeated on February 27, 2001 and the Board proceeded to act on its decision.
27After examining the chronology of events, the records of the meetings of the Operations/Accommodation Planning Committee and North Wellington/Centre Wellington Secondary Accommodation Review Subcommittee and their composition, the Minutes of the School Board meetings and public meetings, the documents presented and received as part of the public debate, the opportunities for and the substance of the various delegations heard by the School Board, the Minutes of the November 28, 2000 School Board meeting and the Minutes of the February 27, 2001 School Board meeting, we are satisfied that the process and procedure followed by the School Board in arriving at its decision to close ADHS was not unfair. The conduct of the School Board on the facts of this case does not come anywhere near the kind of conduct, such as secret meetings, (see Aitken v. Lambton Kent District School Board, [2002] O.J. No. 3026) or the total lack of public consultation, (see Bezaire v. Windsor Roman Catholic Separate School Board, supra) or decision-making outside of the public view, (see Vecchiarelli v. Toronto Catholic District School Board, [2002] O.J. No. 2458), that convinced the Court in those cases to grant the relief sought. Nor are we convinced on the evidence that the School Board approached the public consultation process leading up to its decision with a demonstrated bias or “closed mind” so as to render futile the representations in favour of keeping ADHS open. It considered a number of alternatives throughout the process. As the Divisional Court pointed out in Ross v. Avon Maitland District School Board, supra:
[para3] As this Court said about school closing in Bezaire v. Windsor, (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737, the right of meaningful participation by persons and groups affected by the decision must be jealously guarded. The consultation and the decision making process need not be perfect so long are they are basically fair. The applicants have a heavy burden to establish not only that there was some procedural defect but also that any defect was so fundamental that it affects the very basis of the decision.
28On all of the evidence, we are not satisfied that the Applicants have met the onus on them in this Application.
29With respect to the issue of delay raised by the Respondent, it appears from the material presented by the Respondent that the financial consequences to the School Board, if the November 28, 2000 and February 27, 2001 decisions to close ADHS were to be quashed, would indeed be substantial and serious. However, in view of our decision on the merits of this case, it is unnecessary to decide the issue of delay.
30The parties have agreed that, in view of the pubic interest nature of this litigation, there should be no order as to costs.
_____________________________
Linhares de Sousa J.
__________________________________
O’Driscoll J.
__________________________________
Herold J.
Released:
COURT FILE NO.: 01-BN-11268
Divisional Court File No.: 91/03
DATE: 20030425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, HEROLD AND LINHARES DE SOUSA JJ.
IN THE MATTER OF the Education Act, R.S.O., 1990, C. E2
AND IN THE MATTER OF the Statutory Powers Procedure Act, R.S.O., 1990, C. S22
AND IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, C. J1s.2(1)
AND IN THE MATTER OF the Upper Grand District School Board
AND IN THE MATTER OF the Arthur District High School
B E T W E E N:
LOUISE DINGMAN, MARY SCHMIDT, GERALD TOWNSEND, STEVE O’NEILL, MONICA LANDONI, MARY JO MARSHALL, NANCY THRUSTON, BONNIE ROONEY, JOYCE SCHNURR and JACK WALSH
Applicants
- and –
THE UPPER GRAND DISTRICT SCHOOL BOARD
Respondents
REASONS FOR JUDGMENT
LINHARES de SOUSA J.
Released: April 25, 2003