Court File and Parties
CITATION: Friends of Niagara District Secondary School et al. v. District School Board of Niagara, 2010 ONSC 4756
DIVISIONAL COURT FILE NO.: 278/10
DATE: 20100909
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
FRIENDS OF NIAGARA DISTRICT SECONDARY SCHOOL, KALE NOLAN JARED RIVE a minor, by his litigation guardian TERESA RIVE, BRADLEY JAMES COWAN a minor, by his litigation guardian SANDRA COWAN, and ASHLEY ELIZABETH KELLER a minor, by her litigation guardian GEORGINA KELLER
Applicants
– and –
DISTRICT SCHOOL BOARD OF NIAGARA
Respondent
Counsel:
Yehuda Levinson, Counsel for the Applicants
J. Paul R. Howard, Counsel for the Respondent
HEARD at Toronto: August 25, 2010
REASONS FOR JUDGMENT
Ferrier J.:
[1] At a meeting of the District School Board of Niagara (the “Board”) on June 17, 2008, the Board decided to close the only public secondary school in the town of Niagara-on-the-Lake, effective August 31, 2010. The school is called the Niagara District Secondary School (the “School” or “NDSS”). The applicants, all students at the school, through their litigation guardians, their parents, have applied for judicial review of the decision and bring this motion for an injunction pending the hearing of the application.
[2] This matter was argued on August 25th, 2010 and a decision was reserved. By endorsement issued August 27th, I dismissed the motion “for reasons to be delivered”. These are the reasons.
[3] I begin by acknowledging that the closing of the school will impact on virtually every aspect of the community. It will seriously affect the entire community. Closing any school is a difficult matter for all concerned. Closing the only high school compounds the drastic effect on the community.
[4] Nevertheless, obliged as I am to deal with the issues according to law, I begin with the question of delay.
Delay
[5] On this ground alone I would dismiss the motion. It is well settled law that the doctrine of laches may defeat an equitable claim: Louie v. Lastman, [2002] O.J. 3533 at paras. 11, 14, 15, 16 (Ont.C.A.).
[6] Furthermore, it is also well settled law that delay may defeat an application for Judicial Review.
[7] Here, the decision to close the school occurred in June 2008. Only two years later in June 2010 was the application launched and notice of this motion given.
[8] In the interim, the applicants sought several times over several months to have the matter reconsidered. In every attempt, their position was defeated soundly in Board votes. In the fall of 2009, the applicants sought to have the Minister of Education intervene – the minister declined. A further attempt to a new minister was made in early 2010 – to no avail.
[9] It is readily understandable that the applicants would be reluctant to commence legal proceedings especially in view of the expense or potential expense. That however is not a sufficient explanation for a 2 year delay, especially when possible legal proceedings were mentioned at a Board meeting in the fall of 2009, at which Teresa Rive was present.
[10] Finally, this matter was argued a mere 7 days before the decision of the Board was to be finally effected. Everything has been done by the administration to carry out the Board’s wishes and the school has effectively been closed since June 30, 2010. Further particulars of this are described below.
[11] Although the motion should be dismissed on this ground alone, I shall nevertheless deal with the submissions of the applicants because of the importance of the issues to the community.
Procedural Fairness
[12] The applicants acknowledge that there is no issue of procedural fairness in the process undertaken by the Board.
[13] I would go further. In considering whether to close the school the Board in this case fulfilled its responsibilities to the community to the full. The process was scrupulously fair. The applicant participated fully in the process.
[14] The question of declining enrolment in the area of Niagara-on-the-Lake had been under consideration to a greater or lesser degree since about the year 2000.
[15] Following the publication of the Ministry’s Pupil Accommodation Review Guidelines, and in compliance therewith, the Board developed and approved its policy. In dealing with the question of the future of the school, the Niagara-on-Lake Accommodation Review Committee established by the Board (the “ARC”) and the Board staff followed and adhered to the policy throughout the process. (The Board had requested a review of all Niagara-on-the-Lake schools.)
[16] From May 2007 to March 2008, there were eight public meetings of the ARC. They were well attended by the public, including various members of the applicants. The ARC posted all relevant documents on its website and invited feedback and internet interaction like a blog.
[17] There were also three public consultation meetings, in October 2007, and February 2008. In addition there were five public consultation and information sessions in November 2007.
[18] Public delegations were made to the Board at its regular meetings of April 8, 2008, April 22, 2008, May 13, 2008, and its special Board meetings on May 26, 2008, and June 17, 2008.
[19] The ARC delivered its Report on March 28, 2008. As required by Board policy, it went to the Board Administration for review, analysis and a report from Administration to the Board. This latter report was submitted April 8, 2008. Under the policy, no action could be taken for 60 days, to enable public consideration and comment on the Administration Report.
[20] The ARC report did not recommend closing the school. Far from it. It made 15 broad-ranging recommendations all designed to improve what I will call the “education system” in Niagara-on-the-Lake, including constructing a new high school on the site of the school, as well as a new elementary school. It made significant recommendations concerning improving staffing and programming, as well as other significant recommendations. Full details are in the materials filed.
[21] The Board Administration report prescribed 3 options to the Board. The first recommended that 5 neighborhood elementary schools be consolidated into three and that renovations be made to the secondary school here in question.
[22] The second option was similar, but included moving grades 7 and 8 students to the Niagara District Secondary School.
[23] The third option recommended the same elementary school consolidation, and the closing of NDSS.
[24] The Board Administration recommended the third option.
[25] Against this background, the matter came on for debate and resolution at the Board meeting of June 17, 2008.
The Decision of the Board on June 17, 2008
[26] The Board did not adopt any of the specific courses of action recommended by ARC or the Administration Report.
[27] The following resolution was passed on a vote of 6 to 5:
That Niagara District Secondary School remain open for the upcoming school year of 2008-2009. If the school’s average daily enrolment does not reach 350 students as indicated by the October 31, 2009, Ministry Report, then Niagara District Secondary School will close for instructional purposes effective August 31, 2010.
[28] Before the passing of this resolution, 3 previous motions had been put, all dealing with the question of what should be done about keeping open or closing the school. All had various differing detail. All were defeated.
[29] During the debate of the resolution above noted, one Trustee raised a point of order, arguing that the motion on the floor was, in effect a motion to reconsider earlier motions which dealt with closing the school and which were defeated.
[30] As such, per the Board’s by-laws, there was required a two-thirds majority vote in favour of reconsideration before the motion could be put.
[31] The Board Chair ruled against that position, holding that the motion was valid and could be voted upon. It is this very position, that the motion did not need a two-thirds majority vote, which is at the heart of the application for Judicial Review.
[32] It is important to note that, although the bylaws specifically allow for an appeal of the ruling of the Chair, to be voted upon immediately without debate, no such appeal was taken from the ruling.
[33] Through to October 2009, there were several motions to have the Board reconsider its June 17, 2008 resolution. All motions to reconsider were defeated.
Additional Facts
[34] NDSS is, in effect, already “closed”. All students have been accommodated at a school of their individual choice, from a group of four schools, plus two more for students residing in a certain subdivision of the town. All NDSS students have made their selection and are enrolled.
[35] Many students have expressed their pleasure with their new sites.
[36] If all the students of NDSS were required to return to NDSS, it very well might impact students enrolled at the other six schools (some classes that have been created there might have to be cancelled.)
[37] Ten bus transportation routes have been modified to incorporate busing the NDSS students. This has been a “logistical nightmare”. It took three months to set it up. All bus routes would have to be redone if NDSS were to be ordered to be kept open.
[38] To dismantle this busing system will obviously impact third parties, including the consortium which co-ordinates the bus transportation both for DSBN and the Niagara District Catholic School Board.
[39] All former NDSS administrative and professional staff have been reassigned to other positions for September 2010, including teachers and educational assistants; administrative staff, secretaries and caretakers have all been placed. This had to be done with due regard for the various collective agreements which the Board must honour. In addition, because of bumping rights, staff elsewhere have been reassigned, with the domino effect in some cases. The whole process would have to be redone if the school is ordered to stay open.
[40] Renovations are underway at some schools to accommodate the former NDSS students.
[41] All inventory of equipment has been reallocated, including furniture, specific departmental equipment, teacher equipment and instructional equipment. The teachers have moved all of their own personal instructional items.
[42] Concerning the NDSS school site, the Board has no current plans to dispose of it, rather it is looking at ways to use it for other Board purposes.
Enrolment
[43] Enrolment has been declining at NDSS for several years. (From 525 students in 2001 to 322 in 2007.) Enrolment at October 31, 2009 was 260 students, far short of the required minimum target of 350 in the resolution of the Board.
[44] I now turn to the 3-part test in RJR MacDonald Inc. v. Canada (Attorney General), [1994] S.C.J. No. 17 at 14, para. 41.
Serious questions to be tried
[45] In cases where the relief requested is mandatory in nature, as here, the applicant must demonstrate a strong prima facie case or “a strong and clear case with a high degree of assurance that an injunction would be rightly granted”: Ross v. Avon Maitland District School Board, [2000] O.J. No. 1714.
[46] Here, the Board’s decision was not a quasi judicial one. It was plainly administrative – a management decision. It was made procedurally in accordance with the Board’s by-laws.
[47] The Chair ruled that the motion was not a reconsideration of the earlier motion. The applicants argue that it was a reconsideration, needing a two-thirds vote. But no appeal was made to the ruling. It is not for this Court to perform the function of the Chair as if there had been an appeal of his order. The applicants argue, in effect, that the motion, being one to reconsider, was “void ab initio” and should be so declared. I disagree. The record shows that the Board was grappling for a solution to the problem it faced. The ultimate result was a compromise in what had been a continuing debate until it was ended by the resolution.
[48] In my view, the applicants have not satisfied the first branch of the test. A Divisional Court Panel, faced with a “final” ruling and a resolution of the Board, on an administrative decision, where meticulous procedural fairness has been executed, is most unlikely to intervene. This is especially so because the standard of review is reasonableness. There is a privative provision – the ruling is “final”. The decision is an administrative one by Board members who are publicly elected to make the very tough decisions they had to make. The Board has expertise and knowledge in dealing with such difficult decisions in its region and in balancing all the factors and needs of the community.
[49] Even if the Standard of Review were correctness, and even if the applicants only had to establish “a serious issue to be tried”, I would hold that the applicants have not made out this branch of the test.
Irreparable Harm
[50] The application could be heard within the next two months, approximately. The school site remains intact with no plans to dispose of it.
[51] If the application is successful, steps can be taken for the return of students to NDSS.
[52] Thus, I do not see irreparable harm to the applicants if the motion is denied.
Balance of Convenience
[53] Relying on its resolution and repeated failed attempts to have the issue revisited, and with knowledge that the 350 enrolment threshold had not been met, the Board began the lengthy and complex arrangements above described. They have been completed and the school is “closed”.
[54] The motion was launched after most if not all these arrangements were in place.
[55] To me, it is rather obvious that the balance of convenience favours the Board.
[56] The ARC report contains a recital that states:
The District School Board of Niagara has contributed to a declining enrolment cycle at Niagara District Secondary School through:
a. Lack of facility improvement and upkeep;
b. Persistent threat of closure since 1991;
c. Accommodating over 40% of local public secondary school students outside of Niagara-on-the-Lake.
[57] The applicants argue that the Board failed to consider its own role in the problems facing NDSS – i.e. that it was a significant cause of lower enrolment. Thus, the decision of the Board was unreasonable. Further, the Board failed to consider all the factors revealed in the various reports and advanced by the applicants. That too, say the applicants produced an unreasonable decision.
[58] Thus, there is a strong prima facie case (or the less onerous “serious issue to be tried”), say the applicants.
[59] I disagree. The record makes it clear that the Board had all of the Reports, the Board members were well aware of the factors to consider and the position being advanced by the applicants. The contribution of the Board to the declining enrolment was raised in the debates by those propounding the point.
[60] I do not see this position as satisfying the “serious issue to be tried”. To repeat, the decision was an administrative one taken in an atmosphere of complete procedural fairness by officials elected to do exactly what they did – make a difficult decision.
[61] Accordingly, as indicated above, I dismissed the Motion, for these reasons.
[62] If the parties are unable to agree on costs, I will receive brief written submissions, by the respondent within 20 days, and by the applicant within a further 15 days.
Ferrier J.
Released: September 9, 2010