CITATION: Sydenham District Association v. Limestone District School Board, 2014 ONSC 7199
DIVISIONAL COURT FILE NO.: 391/14
DATE: 20141212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, LEDERMAN & SWINTON JJ.
B E T W E E N:
SYDENHAM DISTRICT ASSOCIATION, ARTHUR COCKFIELD, LINDSAY DAVIDSON, CHRISTINE SYPNOWICH, DAVID GORDON and CARL BRAY
Applicants
- and -
LIMESTONE DISTRICT SCHOOL BOARD
Respondent
Paul Champ and Bijon Roy, for the Applicants
Michael Hines, for the Respondent
HEARD at Toronto: November 20 and 21, 2014
Swinton J.:
Overview
[1] The applicants seek judicial review of a June 2013 decision of the respondent Limestone District School Board (the “Board”) to close two secondary schools in central Kingston, provided that funding could be obtained from the provincial government to build a new intermediate/secondary school. The applicants argue that the decision should be set aside because the Board failed to comply with provincial government guidelines and its own policy on school closure, they were denied procedural fairness during the consultation process that occurred prior to the decision, and the decision is unintelligible and, therefore, unreasonable.
[2] For the reasons that follow, I would dismiss the application for judicial review.
Background
[3] There are currently three secondary schools operated by the Board in central Kingston: Kingston Collegiate and Vocational Institute (“KCVI”), Loyalist Collegiate and Vocational Institute (“LCVI”), and Queen Elizabeth Collegiate and Vocational Institute (“QECVI”). KCVI also houses an intermediate (Grades 7-8) French immersion school called École Module Vanier (“Vanier”), while QECVI houses an intermediate school, Calvin Park Public School (“Calvin Park”).
[4] The applicant Sydenham District Association is a not-for-profit organization of residents seeking to maintain the Sydenham neighbourhood in central Kingston. Part of the catchment area for KCVI is in this district. The five individual applicants are parents of present or former students of KCVI.
[5] Each of the central Kingston secondary schools faces a problem of declining enrolment. Given the grant-based structure of school funding in Ontario, the Board faces increasing difficulties in providing meaningful choices in the curriculum for secondary school students in central Kingston. In particular, the Board has been facing problems with presenting courses in each of the three regular program pathways in each secondary school - that is, academic/university, applied/college and workplace.
[6] As a result of declining enrolment and reduced program choices, the Board decided, in May 2011, to establish the Central Kingston Intermediate and Secondary Schools Program and Accommodation Review Committee (“PARC”) to consider the future of the five schools listed above. The PARC was established in conformity with s. 171(1)7 of the Education Act, R.S.O. 1990, c. E.2, which gives a school board the power to “determine the number and kind of schools to be established and maintained and the attendance area for each school, and close schools in accordance with policies established by the board from guidelines issued by the Minister.”
[7] The Ministry of Education (“the Ministry”) has issued a Pupil Accommodation Review Guideline (“the Guideline”). The purpose of the Guideline is to ensure that a school board’s decision to close a school is made “with the full involvement of an informed local community and it is based on a broad range of criteria regarding the learning experience for students” (Application Record, p. 847). The Guideline sets out requirements for the process to be followed before a school is closed, including the creation of an Accommodation Review Committee to advise the Board of Trustees, the provision of information to the public and mandatory consultation with the members of the community.
[8] The Board has adopted Policy 15, School Accommodation (“the Policy”), in accordance with the Guideline. In that Policy, the Board commits itself to a number of tenets, beginning with “Student curriculum and program needs will drive facilities planning.” The Policy sets out a detailed process, including the creation of a Program and Accommodation Review Committee.
[9] The PARC was composed of representatives from each of the five schools, including three parent members, the school principal, teaching and non-teaching staff, as well as two trustees, and the school superintendent. Two of the applicants in this case, Lindsay Davidson and Carl Bray, were parent representatives for KCVI. A trustee chaired the PARC, and various Board officials attended meetings.
[10] The mandate of the PARC was to make recommendations to the Board on program and accommodation options for the schools under review. The PARC was told, at its first meeting on November 1, 2011, that its recommendations needed to address the following criteria (Application Record, p. 98):
The enhancement, where possible, of the program and learning opportunities for students;
The reduction of the building maintenance and operating expenses and the need for major capital improvements; and
The optimization of excess student capacity at the schools within the review.
[11] Ruth Bailey was hired to work as the Accommodation Review Facilitator for the PARC. She describes the PARC process in detail in an affidavit prepared for this application for judicial review. The PARC commenced its deliberations with consideration of School Information Profiles (“SIPs”) prepared by Board staff for each affected school as a requirement of the Guideline and the Policy. The SIPs contain four sections: value to the student, value to the school board, value to the community and value to the local economy.
[12] The PARC held 14 working meetings over the period November 1, 2011 to June 21, 2012. In the first few meetings, the members considered and refined the SIPs, which were then presented for discussion at two meetings where members of the public could provide input. The PARC also developed a list of criteria and a weighting system and applied these to the many options before them. A further two meetings with public participation were held to discuss options.
[13] The PARC process culminated in the creation of a report authored by a majority of the members that was submitted in July 2012. A Minority Report was authored by six of the eleven representatives from KCVI and Vanier, including two of the present applicants.
[14] The Majority Report recommended three options. Its first, preferred option, was that “the Board explore a three school option that provides for effective programming”. Their second and third options were given no particular priority. The second option was to have the Board pursue funding for the construction of a new secondary school, while maintaining one of the three existing schools. The third option was to convert QECVI into a composite high school, retain LCVI as a composite school and close KCVI. The term “composite” is used to describe a school that provides a reasonable provision of courses in each of the regular program pathways described earlier (Affidavit of Director of Education Brenda Hunter, para. 30).
[15] The Minority Report was delivered because of concern that there was block voting by representatives of the other schools and because of alleged process errors and disregard of public input. This report expressed support for a three school option. It advocated a “viable, made-in-Kingston solution that is financially sustainable” achieved by “creating an innovative, 3-school hub in central Kingston.”
[16] The Majority and Minority Reports were put before the Board’s School Enrolment/School Capacity Committee (“SE/SCC”), a standing Committee of the Whole Board, on September 5, 2012. That committee held a further 19 meetings to consider the issues in the central Kingston accommodation review. All the meetings were held in public.
[17] In the course of the SE/SCC process, that committee was presented with a report from Senior Staff dated November 22, 2012, which responded to both the PARC Report and the Minority Report and made recommendations. This report explained in detail why Staff could not recommend the first option of the PARC, the three school option, given the programming needs of students. Instead, Staff recommended the closure and consolidation of KCVI and QECVI, conditional upon funding from the Ministry to build a new mid-size composite secondary school. This corresponded to the second option recommended by the PARC. In the view of Staff (Application Record, p. 948):
A two-school option that creates academically heterogeneous student populations of sufficient size to enable the provision of all program pathways is, in the considered opinion of Senior Staff, the optimal model for student achievement and well-being, as well as for the financial sustainability of the Board.
[18] The Staff report was available on the Board’s website, and it was presented to the SE/SCC at a meeting open to the public. The SE/SCC also held a meeting on January 15, 2013, at which members of the public were invited to comment on the Staff report. All five of the individual applicants to this application for judicial review made presentations to the SE/SCC.
[19] Senior Staff then prepared a follow-up report dated March 19, 2013 that summarized the public input and commented on the issues and options raised at the January meeting. Again, Staff recommended against the three school option, purely on programming grounds and setting aside the financial issues (Application Record, p. 1055). This report was made public, and the SE/SCC held a further12 meetings between March 19 and June 17, 2013.
[20] At the SE/SCC meeting on June 17, 2013, the trustees voted 5-4 to accept 14 resolutions. The first resolution stated:
That the Limestone District School Board apply for funding from the Ministry of Education for the building of a new secondary school in Central Kingston to be built on the QECVI site, or another site to be determined; that QECVI and KCVI be closed as secondary schools; and that students and programming be consolidated between the new school and LCVI.
[21] The other 13 resolutions dealt with actions to be taken if funding could not be obtained for a new school. For example, the second resolution provided for the continued operation of KCVI (with Vanier) and LCVI (with Calvin Park) and the repurposing of QECVI as an Education Centre.
[22] At the regular meeting of the Board of Trustees on June 19, 2013, the 14 resolutions were combined into one resolution and adopted unanimously.
[23] On October 31, 2013, the Board submitted a proposal to the Ministry to obtain capital funding for a new intermediate/secondary school. The application was approved on March 24, 2014. The Board has since selected an architect and is in the planning stage for the new school, although the site has not yet been finalized. In the meantime, all of the affected schools continue to operate.
The Issues
[24] The applicants have raised a number of issues, which I shall discuss under three headings:
Did the Board act without statutory authority because it failed to provide a deadline for closing the schools and it failed to provide a decision on École Module Vanier?
Did the Board deny the applicants procedural fairness by failing to disclose relevant information and by conducting a perfunctory process?
Was the Board’s decision unreasonable because it was unintelligible?
The Role of the Court in Reviewing a School Closure Decision
[25] It is well-established that a court has a limited role when asked to judicially review the decision of a school board to close a school. Given that the decision involves policy and financial considerations, it is not the role of the court to determine the wisdom of the decision. Rather, it is the role of the elected trustees to weigh the competing considerations.
[26] The court’s role is a circumscribed one, as stated in Ross v. Avon Maitland District School Board, 2000 22817 (ON SC), [2000] O.J. No. 5680 (Div. Ct.) (“Ross II”) at para. 2:
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.
Issue 1: Did the Board act without statutory authority because it failed to provide a deadline for closing the schools and it failed to provide a decision on École Module Vanier?
The complaint
[27] The applicants argue that the Board’s decision fails to accord with the requirements of the Ministry Guideline and the Board’s own Policy, as no deadline was set for the closing of the schools. The Guideline states that “[i]f the Board of Trustees votes to close a school or schools, the board must outline clear timelines when the school(s) will close.” Section 3.4 of the Board Policy provides that “[i]f the Board’s decision is consolidation, closure or program relocation, the change(s) will normally occur for the next school year unless specifically noted by the Board.”
[28] The applicants also argue that the decision of the Board of Trustees was incomplete because it failed to deal with the fate of Vanier.
The effect of non-compliance with the guidelines and policy
[29] The predominant view on the effect of the guideline and policies made pursuant to them was expressed by Eberle J. in Fisher Park Residents Assn. Inc. v. Ottawa Board of Education (1986), 1986 2569 (ON SC), 57 O.R. (2d) 468 (S.C.) at para. 29. He emphasized that the guidelines and policies are not legislation or regulations, but rather are tools designed to ensure a fair procedure before a decision is taken to close a school. Consequently, the judicial concern should be the substance of what has been done by the school board, rather than technicalities. He stated (at para. 48):
We are dealing here not with a body affecting anyone’s legal rights but a body carrying out an administrative or management function. In my view, the decision of such a body should not be quashed unless real and substantial prejudices have been shown by the way in which matters have been conducted or for some other substantial reason.
[30] The Divisional Court adopted Eberle J.’s view that the guidelines are not analogous to legislative enactments or regulations in Bezaire v. Windsor Roman Catholic Separate School Board (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737 at para. 45. The Court observed that the policies for school closing should “substantially conform with the guidelines” (at para. 46).
[31] More recently, the Divisional Court stated in DeLarue v. Kawartha Pine Ridge District School Board, 2012 ONSC 3349 that a school board must “substantially conform” with a policy adopted for school closure (at paras. 68 and 128).
[32] The applicants rely on a passage in Ross v. Avon Maitland District School Board, [2000] O.J. No. 1714 (S.C.J.) (“Ross 1”) for the proposition that there must be compliance with the Guideline, or the Board will lack the authority to make the closure decision. In the course of determining a motion for an interlocutory injunction, Heeney J. stated (at para. 37):
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 do not comply with Ministry guidelines, it follows that the Board lacked statutory authority to close the school in question, and I so conclude.
[33] I note that the Divisional Court, on hearing the application for judicial review on the merits in Ross II, explicitly stated that it need not decide whether the school board lacked statutory authority to close the school because the board’s formal policy did not comply with the Guideline. The board’s decision was quashed by the Divisional Court because the board had acted in a procedurally unfair manner (Ross II at para. 8).
[34] In sum, the predominant view in the Ontario case law requires substantial compliance with the guidelines and policies by school boards seeking to close schools. Thus, the question for this Court is whether the failure to specify a date for closing the schools or to deal with Vanier constitutes a substantial non-compliance with the Guideline and Policy. In my view, there has been substantial compliance with both.
The failure to set a time for closing
[35] The resolution of the Board of Trustees did not specify a date for the closing of the schools. However, in the circumstances, that is fully understandable. The preferred option was to obtain funding from the Ministry to build a new school to replace KCVI and QECVI. There was no way to know, at the time of the resolution, if and when an application for funding might be successful. Hence, it was impossible to say precisely when the schools would be closed.
[36] This is not like the more typical case, where a school is to be closed and its students transferred to another school. In such a situation, it is reasonable to expect the school board to provide a timeline for those affected. Understandably, the Policy provides that “the change(s) will normally occur for the next school year unless specifically noted by the Board” (emphasis added). However, in the present circumstances, the date of closure is contingent on a number of factors: first, obtaining funding from the province, followed by design and construction stages.
[37] The applicants have identified no prejudice from the lack of a precise target date for closing. Indeed, there is information publicly available to them about timelines. The Staff report of March 19, 2013, which was provided to the trustees and made available to the public, discussed transition issues. With respect to the Staff’s preferred option of seeking funding for a new school, it was recommended that the implementation of any transition occur no earlier than September 2015. The Staff estimated that the new school would be completed by September 2016 at the earliest and 2017 at the latest.
[38] In my view, the applicants have demonstrated, at most, a technical irregularity with the Board’s Policy. However, that does not undermine the legality of the decision made by the Board, as there was substantial compliance with the Guideline and Policy in coming to the decision.
École Module Vanier
[39] With the filing of this application for judicial review, the Board realized that there had been an oversight in the June 19, 2013 resolution because of the failure to deal with the future of Vanier. While the resolution dealt with the future of LCVI, KCVI, QECVI and Calvin Park in the event of obtaining funding for a new school, no mention was made of Vanier.
[40] However, the failure to deal with Vanier is not fatal to the decision of the Board. The applicants, in their notice of application, effectively sought a ruling on a decision that had yet to be made. That decision has now been made.
[41] After this application was commenced, the SE/SCC gave notice, in August 2014, of its intention to deal with the status of Vanier at a meeting of the Board of Trustees to be held November 12, 2014. The minutes of the SE/SCC meeting referred to the lack of mention of Vanier as an oversight that needed to be corrected.
[42] During the oral hearing of this application and at the request of the Court, draft minutes of the November 12, 2014 of the Board of Trustees were handed up. They show that a resolution has been passed that deals with the relocation of Vanier to the new school.
[43] Given that a decision has now been made with respect to Vanier, there is no basis for this Court to interfere with the Board’s decision on the ground that it is incomplete.
Issue 2: Did the Board deny the applicants procedural fairness by failing to disclose relevant information?
The complaint
[44] The applicants allege a number of procedural deficiencies with respect to the information provided during the PARC process and in the subsequent process involving the trustees. Of greatest importance is the failure to provide Dr. Davidson, one of the KCVI parent representatives on the PARC, with the results of a survey known as “Tell Them From Me” (“TTFM”) when she requested them in April 2012. As well, the TTFM data were not placed before the Board of Trustees prior to their decision.
[45] In addition, the applicants complain of other deficiencies that they say cumulatively contribute to a denial of procedural fairness, including late circulation of agenda packages during the PARC process, late provision of partnership information, unexplained and changing financial information, public criticism by the Director of Education of a report authored by one of the individual applicants, the failure to correct inaccuracies in the record provided to the trustees and perfunctory public consultation.
The law relating to the duty of procedural fairness
[46] One of the primary objectives of the duty of procedural fairness is to permit individuals to participate meaningfully in a decision that affects their rights and interests. However, given the range of administrative decisions to which the duty can apply, the content of the duty of procedural fairness varies with the particular context.
[47] In Baker v. Canada (Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court of Canada set out a number of factors to be considered in determining the content of the duty: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme; the importance of the decision to the individual(s) affected; the legitimate expectations of the person challenging the decision; and the choice of procedures made by the decision-maker (at paras. 23-27). As L’Heureux-Dubé J. stated in that case (at para. 22):
I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
[48] The applicants’ main objection to the Board’s process was the failure to provide relevant information, which they say is a denial of procedural fairness. In order to determine the extent of the Board’s disclosure obligation, it is necessary to consider the Baker factors.
[49] As mentioned earlier in these reasons, a school closing decision is policy-driven. It requires the school board to consider competing concerns with respect to educational objectives, finances, and community needs and concerns. Significantly, the decision is not akin to a judicial or quasi-judicial process, where procedures will more closely resemble a trial process.
[50] The statutory scheme requires an Ontario school board to make a closure decision in accordance with a policy established in accordance with the Ministry Guideline. The Guideline and the Policy are aimed at ensuring effective public consultation before the Board makes a school closure decision. One aspect of that consultation is the creation of an accommodation review committee to provide advice to the Board. In the present case, the Policy contemplates that the PARC will be given an information package prior to its first meeting that will include School Information Profiles (SIPS) and background information regarding the schools under review. The Policy states in section 2.7 that “Board staff will respond to reasonable requests for additional information from the PARC.”
[51] The decision to close a school has been recognized as a very important one, given the significance of schools to the students, their families and the local communities affected by a school closure. Accordingly, the case law on school closure has emphasized that the right to procedural fairness must be jealously guarded - that is, the affected parties must be given an opportunity for meaningful consultation before a decision is made.
[52] With respect to legitimate expectations, affected individuals have the right to expect substantial compliance with the consultation process prescribed by the Policy of the Board.
[53] Finally, a court, in determining the content of the duty of fairness accords some deference to the choice of procedures adopted by the decision-maker. I will return to this factor later.
[54] Given the nature of the decision and its importance to those affected, the duty of fairness required the Board to provide information sufficient to allow meaningful participation in the consultation process. In the PARC process, it had an obligation to respond to “reasonable requests” for information from the committee, as set out in the Policy. Throughout the process, it had an obligation to provide sufficient information that the public could participate meaningfully in the consultation process. As Epstein J. stated in Fratia v. Toronto Catholic District School Board (2001), 149 O.A.C. 159 (Div. Ct.) at para. 55:
The right to be heard includes the rights to reasonable disclosure of information and documentation that will enable the affected party to develop and present the viewpoint he or she wishes to be heard.
[55] In the present application, the onus is on the applicants to show that there was a denial of procedural fairness, given the level of disclosure by the Board. In my view, they have failed to meet that onus.
The TTFM data
[56] The applicants argue that the failure to provide the TTFM data, first to Dr. Davidson as a member of the PARC and then to the Board of Trustees prior to its decision, was a denial of procedural fairness. Given the relevance of the content, they submit that the decision of the Board must be overturned.
[57] The TTFM data were acquired on a confidential basis from students through a voluntary survey. Students and their parents were assured that the results would be shown only to the administration of a particular school to assist in improving the climate in the school. The survey asked questions about many topics, including career paths and participation in extracurricular activities, but also about personal issues including first use of alcohol and drugs, mental health issues, and sexual practices.
[58] In part because of the assurance of confidentiality, Board Staff refused to provide Dr. Davidson with the TTFM data for KCVI, LCVI and QECVI when she requested the information in April 2012. As well, Staff explained that the data were not meant to produce benchmarks or measure performance, but were meant to be a tool for individual school improvement planning.
[59] Subsequently, Dr. Davidson filed a request for the information under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. When the Board still refused to produce the data, she appealed to the Information and Privacy Commissioner. In November 2013, the Commissioner ordered that the data be disclosed (Order No. 2983). Ultimately, Ms. Bailey, the facilitator for the PARC, sent the survey data to Dr. Davidson, all the other members of the PARC and the trustees in January, 2014.
[60] The TTFM survey data cover some 164 pages in the Application Record. The applicants argue that the document is relevant and could have provided quantitative data to inform the content of the SIPS for each of the schools under review. Indeed, the Director of Education conceded there was some relevant data in the document.
[61] The key question for this Court is not whether the TTFM data were arguably relevant, the question one might ask in a disclosure motion in a civil proceeding. Rather, the question in this application is whether the failure to disclose the data undermined the right to participate in the consultation process. That requires the Court to consider the issues in the process, the content of the document, the pertinence of that document to the task of the PARC and the Board of Trustees, and the prejudice caused by failing to disclose the document.
[62] In my view, the failure to disclose the TTFM data to Dr. Davidson did not, in any way, undermine the fairness of the PARC process and, as a consequence, did not affect the fairness of the overall consultation process.
[63] I start with a consideration of the purpose of the PARC process and the overall consultation process. Throughout, the underlying concern was how best to present adequate student programs for all central Kingston secondary students, preferably in a composite school setting, in a period of declining enrolment, with the consequent financial pressure from the per pupil grant system.
[64] The applicants argue that this information may have assisted in creating the SIPs for the schools. While that may be true, the SIPs were not the main focus of the PARC process. They were a tool to familiarize the committee members and the public with the schools prior to a consideration of options with respect to programming and possible closures. The SIPs were initially created by Board Staff, as required by the Policy, to inform the participants. While the PARC members could modify them, I am not satisfied that lack of the TTFM data seriously impaired the ability of members of the PARC or the public to provide input to the SIPS on the value of the individual schools.
[65] Moreover, the failure to disclose this data did not deny the PARC members of information that was required for the PARC to fulfill its mandate. I say this for a number reasons. First, there is nothing in the record before the Court that suggests members of the PARC other than Dr. Davidson felt the need for the TTFM data. Indeed, the minutes of the PARC indicate that when the members were selecting the criteria they felt were important to guide them, they expressly rejected TTFM outcomes as a criterion (PARC Minutes, March 27, 2013, Application Record, p.171). In contrast, criteria such as classes available for all ability levels/pathways at all schools, maintain all programs and mixed socio-economic status rated high (Record, pp. 174). Second, the school principals on the PARC were cognizant of the TTFM data for their schools and could provide input on relevant issues such as extracurricular activity or student performance. Third, the data are of questionable reliability and assistance in any event, given the variable response level in the three schools (and especially the lower rates of response at LCVI and QECVI), as described in Ms. Hunter’s affidavit. Fourth, and most importantly, the TTFM data were only marginally relevant to the task of the PARC, which was to make recommendations on student programming, as identified in their mandate. The Majority made a number of recommendations to the Board, and their preferred option, like the Minority, was a three school model. I fail to see how the TTFM data would have affected the outcome of the process.
[66] In sum, the failure to disclose the TTFM data to Dr. Davidson was not a denial of procedural fairness. The applicants have failed to identify any real prejudice to the efficacy of the PARC phase of the consultation process.
[67] Similarly, the lack of the TTFM data did not affect the fairness of the ongoing consultation process that took place before the Board of Trustees made its decision in June 2013. A question was put to Board Staff at a meeting of the SE/SCC as to why the TTFM data had not been included in the PARC process or the Senior Staff report. In a detailed reply, Staff stated, in part (Minutes of the SE/SCC Meeting, December 11, 2012):
The purpose of the accommodation review is to address the programming needs of our students and the accommodation issues of a school or group of schools. The TTFM data does not illuminate any factors connected to these two issues and are therefore not included in the Senior Staff Report.
[68] Apparently, the trustees were satisfied with this explanation, as they did not ask for further information from the TTFM survey. Again, as with the PARC stage of the process, the task for the Board of Trustees was to determine the best way to deliver programming for students of the central Kingston schools in a period of declining enrollment. In coming to its conclusion as to the appropriate course of action, the Board had a wealth of information and input from interested members of the public. It had the PARC Report, including the Minority Report, the material that had been before the PARC, and the Staff Reports, among other information. The applicants have not demonstrated that the failure to disclose the TTFM data deprived interested members of the public of an opportunity to engage in meaningful participation through the consultation process.
Complaints about late disclosure in the PARC process
[69] Two of the considerations in determining the content of the duty of fairness are the legitimate expectations of the parties affected by the decision and the choice of procedures of the decision-maker. While the applicants complain of the late delivery of the agenda packages to the PARC, the timing should not have been a surprise to them. At the first meeting of the PARC, Ms. Bailey outlined the expected method of operation. She told them that agenda materials would usually be prepared the afternoon prior to the meeting, although at times, this might not be feasible. Similar information had been provided in an email sent prior to the first PARC meeting (Email October 29, 2011, Respondent’s Record, p. 592).
[70] Out of 18 PARC meetings, Dr. Davidson expressed concerns only with respect to four. The Board has given an explanation as to what happened on these occasions: either there was a short time frame between PARC meetings or between the date of a request for information and a meeting, as well as the high volume of requests for information that often took time to fulfill. Apart from Dr. Davidson’s request for TTFM data, all requests for information were fulfilled, according to Ms. Bailey’s affidavit.
[71] The applicants have identified no prejudice because of the timing of the delivery of materials. PARC members were not confined to discussing information at the first meeting that information appeared on the agenda, and members could ask to revisit agenda items and materials. Indeed in her first email of October 29, 2011, Ms. Bailey had informed members that questions about material could be asked at the meeting at which they were presented or emailed to her or raised at the next working committee meeting. Moreover, Ms. Bailey states that Dr. Davidson never expressed any dissatisfaction with the delivery of agenda materials or any concerns about understanding their content when delivered.
[72] The applicants also argue that they were given partnership information late in the PARC process. PARC members were advised of the efforts of the Director of Education to find such opportunities as the PARC proceeded, and, again, there is no evidence of prejudice arising from the timing of this disclosure. Partnership was discussed in the PARC Majority report. Moreover, the evidence shows that the partnership opportunities would not alleviate the programming problems associated with the operation of three secondary schools.
[73] The applicants also complain that there was unexplained and changing financial information during the PARC and about the inadequate information about international students. However, the members were given the opportunity to ask questions and seek clarification. In any event, the main focus of the review process was the programming challenges, not financial considerations.
[74] In the circumstances, there has been no breach of the duty of fairness because of the timing of delivery or the content of information provided. The PARC met over an eight month period in which members held 14 working meetings and four public meetings. PARC members were able to carry out their responsibilities on the basis of the information given, and they and members of the public were able to meaningfully participate in the advisory process contemplated by the Policy.
The treatment of the submissions of Arthur Cockfield
[75] Arthur Cockfield, a law professor, is a member of the public who participated in a number of public meetings. He provided a financial analysis to the PARC on June 11, 2012 that turned out to be based on draft information, although this was unknown to him. The PARC and the public were provided with accurate information at the same meeting. Mr. Cockfield was able to address the PARC again at a later meeting, and he also spoke at the public meeting of the SE/SCC. I see no denial of fairness here. Mr. Cockfield had an opportunity to provide input. The fact that his opinion was not accepted does not mean that he was denied a fair opportunity to participate.
[76] Moreover, the complaint that the Director of Education spoke with a journalist to explain why the Board did not accept Mr. Cockfield’s analysis does not engage the duty of procedural fairness.
Failure to correct inaccuracies in the record
[77] The applicants complain about some inaccuracies in documents that Ms. Bailey agreed to correct during the PARC process and then failed to do so. For example, there was a concern about the accuracy of the PARC minutes that might lead to a misapprehension about the presence of some technology classes at KCVI and the fact of declining enrolment at LCVI.
[78] If there was a possible misunderstanding about these or other issues, subsequent documents before the Board of Trustees and available during the SE/SCC process would have dispelled any misunderstanding. Moreover, the applicants have failed to identify any prejudice to their ability to participate in the decision-making process because of these inaccuracies.
Was the public consultation perfunctory and pro forma?
[79] The Board had an obligation under the Guideline and Policy to engage in meaningful consultation with members of the public before deciding to close any of the affected schools. The applicants argue that the process was pro forma, giving as an example the fact that the Chair of the Board of Trustees gave prepared remarks at the end of the public meeting on January 15, 2013.
[80] Based on the entire history of the decision-making process, from the formation of the PARC through to the decision in June 2013, it is evident that the process was far from perfunctory. There were 14 working meetings of the PARC that were open to the public and four meetings for public input. There were 19 meetings of the SE/SCC, including one meeting for public participation. Key documentation like the Staff reports was available on the Board’s website.
[81] This is far from the cases where a school closing decision has been successfully challenged on the grounds of a lack of procedural fairness. In Aitken v. Lambton Kent District School Board (2002), 163 O.A.C. 148 (Div. Ct.), the trustees held a secret meeting, contrary to a provision of the Education Act, at which they decided to close a school. Similarly, in Vecchiarelli v. Toronto Catholic District School Board (2002), 162 O.A.C. 128 (Div. Ct.), the board had held a secret meeting, leading the Court to conclude that “the heart of the decision-making had therefore not taken place at a public meeting as required by the Education Act” (at para. 10).
[82] In two other cases, there was a serious departure from the Ministry Guidelines. In Ross II, for example, the board had failed to appoint an accommodation review committee prior to the recommendation to close a school in Seaforth and had also given the affected community inadequate time and information to challenge the decision to close the school. In Bezaire, above, the school board voted to close a number of schools on the basis of a consultant’s report and without notice to the public or input from those affected. A report from a parents’/residents’ committee was presented to the board during a brief meeting, after which the decision of the board was affirmed. The Divisional Court determined that there had been no serious effort to comply with the obligation imposed by the Guidelines to obtain public input before the decision was taken (at paras. 60-65). Indeed, the Court stated, “There was a complete disregard of the consultative process which the board espoused and the Ministry of Education required” (at para. 65).
[83] In contrast, the Limestone Board met its obligation to provide a meaningful opportunity for affected members of the community to participate in the school closing decisions through the PARC process, the numerous SE/SCC meetings, and the careful consideration of the input from the PARC and presentations at public meetings found in the Staff Reports.
Issue No. 3: Was the Board’s decision unreasonable because it was unintelligible?
[84] The applicants argue that the various parts of the resolution adopted by the Board of Trustees are contradictory and unintelligible. They cite Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 as authority that an administrative decision must be intelligible, transparent, and justified in order to be reasonable (at para. 47).
[85] In my view, the Board’s preferred course of action is clearly set out in the resolution: to obtain provincial funding, build a new school and close KCVI and QECVI. This Court need not decide whether there is a lack of clarity in the Board’s resolution with respect to the course of action if provincial funding were not obtained for the new school. Any lack of clarity in the rest of the resolution is of no importance because the promise of funding has been received. Courts do not generally deal with moot questions, absent exceptional circumstances, and there are no exceptional circumstances here.
Conclusion
[86] This application for judicial review is really about the decision of the Board to close KCVI. The Board reached its decision after a lengthy and open public process in which the members of the community, including all of the applicants, were given ample opportunity to participate and make their views known. The Board acted in accordance with the Guideline and its Policy and met its obligation of procedural fairness. Accordingly, the application for judicial review is dismissed.
[87] If the parties cannot agree on costs, they may make brief written submissions through the Divisional Court office within 30 days of the release of this decision.
Swinton J.
Spence J.
Lederman J.
Released: December 12, 2014
CITATION: Sydenham District Association v. Limestone District School Board, 2014 ONSC 7199
DIVISIONAL COURT FILE NO.: 391/14
DATE: 20141212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, LEDERMAN & swinton jj.
B E T W E E N:
SYDENHAM DISTRICT ASSOCIATION, ARTHUR COCKFIELD, LINDSAY DAVIDSON, CHRISTINE SYPNOWICH, DAVID GORDON and CARL BRAY
Applicants
- and -
LIMESTONE DISTRICT SCHOOL BOARD
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: December 12, 2014