CITATION: Citizens for Accountable and Responsible Education Niagara Inc. v. District School Board of Niagara, 2015 ONSC 2058

DIVISIONAL COURT FILE NO.: DC-15-105-00

DATE: 20150430

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. Wilson, Sachs, Mesbur JJ.

BETWEEN:

CITIZENS FOR ACCOUNTABLE AND RESPONSIBLE EDUCATION NIAGARA INC. (C.A.R.E.) JOSH WIWCHARYK, THOMAS ELTOFT and ROBIN RIDESIC

Applicants

– and –

DISTRICT SCHOOL BOARD OF NIAGARA

Respondent

Lionel J. Tupman, Kimberly A. Whaley, for the Applicants

J. Paul R. Howard, Jessica A. Koper for the Respondent

HEARD at Toronto: March 27, 2015

J. WILSON, J.

REASONS FOR JUDGMENT

This Application

[1] A school board’s decision to close a school due to decreased enrollment has a significant impact upon a community and its residents both present and future. These are difficult, heart wrenching decisions, provoking strong and divergent feelings and opinions amongst affected community members.

[2] The applicants, Citizens for Accountable and Responsible Education Niagara Inc. (“CARE”), represent members of the Niagara-on-the-Lake community who actively opposed the closing of Parliament Oak School (the “School”). The School is the last elementary school in Old Town in Niagara-on-the Lake. The CARE members and the individually named applicants participated vigorously and effectively in a respectful and well-organized manner to oppose the closure of the School in the public review process required under the Education Act, R.S.O. 1990, c. E. 2, when a school board is contemplating the closure of a school.

[3] The applicants seek judicial review of the decision to close the School, made by the Trustees of the District School Board of Niagara (“the Trustees”, “the Board”) on April 22, 2014 (the “Decision”).

[4] The applicants argue that the Decision was marred by procedural unfairness. Further, they allege that the Senior Staff working for the Board exhibited, from the outset of the review process, a closed mind to viable alternatives suggested by CARE and the Accommodation Review Committee (“ARC”) to keep the School open. They argue that the Senior Staff members’ attitude of a closed mind influenced the Trustees and raises the appearance of bias.

[5] The applicants first sought administrative reconsideration of the Decision by the Minister of Education in May 2014. On June 16, 2014 the Minister denied the request.

[6] The applicants seek an order in the nature of certiorari setting aside the Decision. Alternatively the applicants seek an order that the mandatory review process contemplated under the Education Act be held de novo in accordance with procedural fairness.

Legal Principles and Standard of Review

[7] The narrow scope of judicial review of a decision to close a school was recently canvassed by Justice Swinton in Sydenham District Assn. v. Limestone District School Board, 2014 ONSC 7199 (Div. Ct.) at paras. 25-26:

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.

The court’s role is a circumscribed one, as stated in Ross v. Avon Maitland District School Board, [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.

[8] The content of the duty of procedural fairness varies with the type of decision under review. I will review in more detail the principles applicable to this case when I review the applicants’ submissions.

[9] If the applicants meet the onus of proving a breach of the duty of procedural fairness, there is no applicable standard of review, and the Decision must be quashed. Similarly, if the applicants meet the onus of proving the reasonable apprehension of bias due to a closed mind there is no applicable standard of review, and the Decision must be quashed. See: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at para. 23; Newfoundland Telephone Co. Ltd. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at para. 40.

Background Facts

[10] The Education Act in section 171(1)(7) confers authority upon a school board to “determine the number and kinds of schools to be established and maintained… and close schools in accordance with the policies established by the board from guidelines issued by the Minister.”

[11] The Minister of Education requires school boards to issue guidelines respecting school closure policies in accordance with the requirements of the Education Act. The stated purpose of the guidelines is to ensure that decisions about school closures are made with the full involvement of an informed local community and are based on a wide range of criteria.

[12] The current guidelines provided by the Ministry, issued in June 2009, are called the Pupil Accommodation Review Guidelines. An individual school board’s accommodation review policy should reflect, at a minimum, the requirements of the Pupil Accommodation Review Guidelines.

[13] In this case, the Board’s accommodation review policy, the “Accommodation Review Guidelines for the Planning of School Programs & Facility Needs,” was revised May 2013 (the Policy”). The Policy stipulates the mandatory steps to be taken in the Niagara Region in a review process for any potential school closure, including:

• Each school year the Director of Education must conduct a preliminary accommodation analysis of all schools under the Board’s jurisdiction and must report to the Board regarding which schools should be placed “under review”;
• If the Board finds a school raises concerns regarding long-term viability for reasons such as low enrollment, building conditions, etc., the Board may embark on an accommodation review and community consultation process;
• The Board then establishes an Accommodation Review Committee (“ARC”). The ARC’s mandate is to receive input and prepare and study alternatives regarding that school. It prepares a School Valuation Report, in consultation with the public and the Senior Staff, and then prepares a final Accommodation Review Committee Report and Recommendations, which it forwards to Senior Staff (“the ARC Report”);
• The Senior Staff review the ARC Report and present both that report and its own report, (the “Senior Staff Report”) with proposals and recommendations, to the Director. The Director in turn presents both Reports to the Trustees for their consideration;
• The Policy requires that the Senior Staff Report “will consider the ARC recommendations within the context of program viability, economic reality and accommodation needs of all students in the Board”;
• Before a vote is taken whether to close a school, there is a mandatory 60 day period after the ARC and the Senior Staff Reports are submitted to allow public review and discussion of the two Reports as well as an opportunity for further public input to the Trustees from members of the community;
• The Trustees make their final decision, after a review of both the recommendations of the ARC and the Senior Staff Reports after considering the additional input from members of the public during the minimum 60 day process;
• Only after this process takes place can the Trustees vote on the issue of a school closure.

Accommodation Review of Niagara Region Schools

[14] The Board schools have faced significantly decreasing enrollment due to changing demographics. In 2007-2008, the Board undertook an accommodation review of elementary and secondary schools in the Niagara region, resulting in the closure of two elementary schools and the construction of a new elementary school, “Crossroads,” located in Virgil, Ontario.

[15] The Niagara District Secondary School, located in Old Town in Niagara-on-the-Lake, was closed as a result of the accommodation review in 2007-2008. An unsuccessful application for judicial review of the closure decision was launched.[^1]

[16] At the time of the 2007-2008 accommodation review, there were concerns expressed about the viability of the School but the Board decided to keep the School open and make efforts to increase enrollment, including introducing a French immersion program, revitalizing the school space, and expanding the catchment area of the school to increase the population eligible to attend.

[17] Despite these efforts, enrollment at the School has continued to decline. The School has a capacity for 328 students. As of September 15, 2013 there were 127 students attending the School, including those in the French immersion program.

[18] The numbers were so low that the regular allocation of teachers per the recommended student-teacher ratio would have resulted in a quadruple split class of grades 5/6/7/8. Adjustments were made to avoid this scenario, but there were two split classes for the 2013- 2014 academic year for grades 3/4/5 and 6/7/8.

[19] As part of the mandated procedures in a review process, an ARC tasked with reviewing the School and Crossroads was struck in September 2013.

[20] The Board appointed eight people to the ARC, including the principals of the School and Crossroads, a parent council representative from each of the School and Crossroads, a Niagara-on-the Lake business representative, a Niagara-on-the-Lake municipal representative, and two Board Trustees.

[21] Information and documentation was provided to the ARC by the Board, including the Terms of Reference and Guiding Principles for ARC, School Valuation Reports for the School and Crossroads, the “Smarter Schools for a Smarter Niagara Report,” five independent research studies, presentation materials from all speakers, and correspondence and questions from the community with answers from the Board. The ARC also posted all documents on the Board’s website and invited feedback from the public.

[22] Senior Board members attended the public consultation meeting on September 25, 2013 and presented two options for the ARC to consider. The first option was to build an addition to Crossroads and use portables as an interim measure to accommodate the School students. The second option was to await the transfer of the School students until after the construction of the addition was completed at Crossroads.

[23] ARC had a meeting on October 30, 2013 and considered eight possible options. The options were narrowed to two: first, a scenario where the School would remain open and would be revitalized; and second, a scenario where the School would be closed and the students transferred to Crossroads.

[24] There were five committee meetings of the ARC (September 18, October 2, October 30, November 13, 2013 and January 8, 2014). There were also four public consultation meetings (September 25, October 16, December 4, 2013 and January 22, 2014). The viability of these two options was considered in detail in these meetings.

[25] ARC held its final meeting to review its draft report on January 22, 2014. The chair of ARC confirmed that final submissions from ARC members were due within a week. Changes and amendments were incorporated by email exchange without a further formal meeting to approve the final ARC Report. The various changes were incorporated into the final ARC Report by an administrative assistant from the Board.

[26] The ARC Report recommended that the School be kept open and made recommendations to enhance enrollment and revitalize the School. The ARC Report stated that the enrollment data and information relied on by the Board was flawed. Its recommendations for revitalizing the School included:

• For September 2016, the Board should “right size” the School to accommodate 250 students (To “right size” a school is to make it smaller and more efficient by allocating an appropriate amount of resources for the size of the target population.)
• French Immersion to remain until the current Grade 5 students graduate
• Explore leasing opportunities with local organizations to utilize surplus space
• Crossroads to remain in its current location in Virgil, Ontario
• Board staff to revisit school boundaries in Niagara-on-the-Lake.

[27] The ARC Report was printed on February 10, 2014 and provided to the Board Senior Staff for consideration that day. The Senior Staff Report was released on February 11, 2014, within 24 hours of the ARC Report being submitted.

[28] The Senior Staff Report addressed the concerns about the alleged errors in the data raised in the ARC Report. It also considered the recommendation that the School be “right-sized” and concluded that enrollment would still remain at or below 100 students, even with adjustments.

[29] The Senior Staff Report recommended closing the School and consolidating the School with Crossroads for the following reasons:

• Eliminate triple split grade classes
• Provide enhanced learning conditions
• Allow for greater educational opportunities, athletics and extracurricular activities
• Eliminate 222 surplus pupil spaces
• Eliminate a 10-year renewal liability of around $658,000
• Eliminate future liability of repairing and maintaining an old building
• Save taxpayers approximately $270,000

[30] The applicants are critical of the timing of the release of the Senior Staff Report, and argue that the recommendations in the ARC Report were not considered adequately in the Senior Staff Report as required by the Board Policy.

[31] In addition to the ARC Report and its process, there were also two special meetings held, at the request of CARE members and representatives of the Board’s senior administration staff: on January 16, 2014 to review and address CARE’s data, questions and concerns and clarify the Board’s data, research and enrollment projections, as well as a further meeting on April 7, 2014.

[32] The Trustees received both the ARC Report, as well as the Senior Staff Report. The potential closing of the School was the subject of public submissions by delegates before the Trustees at three meetings. These meetings took place on February 25, 2014 (6 delegates), March 25, 2014 (6 delegates), and April 8 2014 (14 delegates).

[33] Pursuant to Rule 8 of the Board’s Delegation By-laws, which govern the procedure at Board meetings, each delegate’s presentation was limited to five minutes, and no questions from the Trustees were permitted to be asked of the delegate making a presentation. If a Trustee had a question, the question could be asked and answered by the Senior Staff at the next meeting of the Trustees.

[34] This policy was instituted following the 2007-2008 accommodation review process to allow all individuals wishing to appear as a delegate at the Board meetings the opportunity to speak and to keep delegation presentations organized.

[35] The applicants challenge these limitations as a breach of the duty of fairness and their right to be heard.

The Trustees’ Decision: April 22, 2014 Meeting

[36] The matter came before the Trustees of the Board for decision on April 22, 2014. A motion to close the School effective June 30, 2015 was moved and seconded. Each Trustee expressed his or her position on the motion and provided a rationale for that position. The Trustees voted to close the School effective June 30, 2015. The motion was carried on a vote of 8-2. The Chair did not vote.

Independent Review by the Minister

[37] A representative from CARE submitted a request for review to the Minister of Education on the grounds that the process followed was inconsistent with the Board’s Policy. The Board filed responding submissions.

[38] Many of the arguments made before this Court were made to the Minister of Education. In particular, the applicants’ letter to the Minister submitted that the Board failed to follow its own Policy; that the Board sent the ARC Recommendation to print as a final draft without the final approval of the ARC members; that the Board did not present information about partnership opportunities; and that the Board did not certain provide “detailed” information required by ARC for its report.

[39] The Minister was required to consider whether to appoint a facilitator to undertake a review of the process. The Minister decided not to appoint a facilitator. The responding letter dated July 17, 2014 from the Minister addressed the points raised by the applicants and concluded that the Board’s process in this case was consistent with the Policy.

No Challenge to Reasonableness of Decision

[40] Contrary to their factum, in argument the applicants conceded that they were not challenging the reasonableness of the Decision. Therefore I will not review the respondent’s position on this issue.

[41] I note that it is not the role of this Court to evaluate the wisdom of decisions by Trustees to close a school. As this Court said in DeLarue v. Kawartha Pine Ridge District School Board, 2012 ONSC 3349 (Div. Ct.), at para. 33: “this Court does not second guess the financial and political decisions of elected officials who act within their legal jurisdiction. The merits of the decision to close [a school] is beyond the reach of this Court.”[^2]

The Arguments of the Applicants

[42] Counsel for the applicants confirmed that the factual background presented is relevant to their two arguments: first, their allegation of a breach of duty of procedural fairness, and second, their allegation that the decision to close the School gives rise to a reasonable apprehension of bias as the Trustees had a closed mind.

[43] Before canvassing the arguments raised, I will review the parameters of the duty of fairness in the context of this case.

Case law on the duty of fairness in the context of school closing

[44] The content of the duty of procedural fairness varies with the type of decision under review. There is no absolute standard.

[45] The factors to be considered when determining the content of the duty of fairness are confirmed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 187, at paras. 23-27. These include:

• 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;
• The choice of procedures made by the decision-maker.

[46] In establishing the duty of fairness, the nature of the decision informs the duties owed.

[47] The Decision of the Trustees is a policy-driven management decision made by elected officials, balancing complex, competing community interests. It is not a decision akin to a judicial decision or a quasi-judicial decision where individual rights are at stake. See: Bryden v. Hamilton-Wentworth District School Board, [2003] O.J. No. 3469 (S.C.), at para. 24.

[48] Members of the affected community have a right to procedural fairness in school closure decisions and must be given an opportunity for meaningful participation and input that is not pro forma before a decision to close a school is made. Case law confirms that this right for public participation must be jealously guarded. See: Sydenham, at paras. 51, 54, 61, 75, 78, and 83; DeLarue, at para. 69.

[49] The courts have held, repeatedly, that the consultation and the decision-making process of the school board need not be perfect so long as it is basically fair. The courts focus on the substance of the decision-making process, rather than the formalities or technicalities. See: Bryden, at paras. 25 and 30; Regier v. Windsor-Essex Roman Catholic District School Board, [2001] O.J. No. 3035 (Div. Ct.), at para. 27; Dingman v. Upper Grand District School Board, [2003] O.J. No. 1564 (Div. Ct.), at paras. 14 and 17.

[50] Justice Swinton in Sydenham canvasses three aspects of the duty of fairness, at paras. 52-54. These include: individuals’ legitimate expectations that Board policy will be respected, the courts’ deference to the choice of procedures by the decision maker, and the community’s right to make informed submissions based on adequate disclosure:

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.

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. …

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.

[51] By way of summary, the following principles emerge from the case law defining procedural fairness owed to members of the community when a school may be closed:

• Closure of a school is a policy-driven management decision made by elected officials, charged with balancing complex, competing community interests. So often, there is no right or wrong answer.[^3]
• It is not the role of this Court to second guess the financial and political decisions of elected officials acting within their legal jurisdiction. The merits of the decision to close a school are not reviewable.[^4]
• The Court’s mandate is limited to inquiring whether the school closing was authorized by law, whether there was adequate public consultation as required by law, and whether the decision has been taken through a process that is procedurally fair.[^5]
• Deference is owed to the choice of procedures made by the decision maker. In this case, deference is owed to what has been stipulated as required in the Board Policy.[^6]
• In assessing whether the duty of fairness has been met, members of the public have the legitimate expectation that there will be substantial compliance with the consultation process prescribed by the Board Policy. The Board Policy in turn respects the minimum requirements of the Education Act.[^7]
• Members of the community have the right to participate in a meaningful way in the decision making process by making submissions to the elected officials and to the senior board staff that is not pro forma before a school in their community is closed. This is a substantive right that must be jealously guarded.[^8]
• Further, members of the public have the right to reasonable disclosure and documentation to be able to meaningfully participate in the public consultation process.[^9]
• As these are policy-driven administrative decisions, substance trumps form or technicalities in assessing whether the public participation in the process was meaningful.[^10]
• In assessing the content of procedural fairness, the process need not be perfect, but must be objectively fair.[^11]

[52] The onus rests with the applicants to prove on a balance of probabilities that procedural fairness has not been respected.[^12] In understanding this onus, two principles emerge:

• This is a heavy onus on any applicants, not lightly dispelled given the nature of the decision being considered. It is not a decision akin to a judicial decision or a quasi-judicial decision where individual rights are at stake.[^13]
• A decision should not be quashed unless real and substantial prejudice has been shown by the way in which matters have been conducted or for some other substantial reason.[^14]

Argument 1: Breach of Duty of Fairness

[53] The applicants raise the following arguments as to the breach of the duty of procedural fairness:

(1) Inadequate documentary disclosure

(2) Failure to include all of the final submissions in the ARC Report

(3) The Senior Staff Report was released 24 hours after the ARC Report without adequately considering the recommendations in the ARC Report as required by the Board Policy

(4) There were errors in the Senior Staff Report that were not adequately considered by the Trustees

(5) The public submissions before the Trustees were inadequate as each delegate was limited to an oral presentation of five minutes, and Trustees were not permitted to ask questions

(6) There were private meetings between the Senior Staff of the Board and the Trustees that filtered and diminished the impact of the delegates’ submissions.

1. Failure to Provide Documentary Disclosure

[54] The applicants argue that ARC was not provided with all relevant documents requested from the Board, which they needed for the ARC Report.

[55] Three categories of documents requested were not provided including the “Facilities Partnership Opportunities Lists” from 2009, 2010, 2012 and 2013, the AutoCad drawings prepared for the Board, and the Board’s “Comprehensive Strategic Multi-Year Plan.”

[56] As confirmed in the case law, ARC is entitled to reasonable documentary disclosure to be able to participate in the consultation process in a meaningful way.

[57] The applicants argued the following:

• That ARC was unable to provide precise financial submissions as to the potential contribution of facilities partners who could lease space at the School, such as guides, cadets, etc. as ARC was not provided with this historic information.
• ARC or CARE participants had an architect that was prepared to review the proposed architectural plans for the School. ARC was not given these plans as these were the property of the architect that drew the plans.
• The document provided by the Board entitled “Comprehensive Strategic Multi-Year Plan” fell short of what is required, as this four page document was far from comprehensive and was not up to date.

[58] There is no evidence that the ARC followed up in any vigorous manner about these requested documents.

[59] It is clear from the minutes of the ARC meetings that partnership opportunities were canvassed, and it is also clear that the Trustees were aware of the facilities partnership issue. A problem was raised that the Board wanted facilities partners that would sign a lease, presumably to ensure income flow, but that these efforts were unsuccessful. This concern is outlined in the Senior Staff Report at pg. 15.

[60] The Board’s position with respect to the request for the AutoCad drawings was that they were the property of the architect that drew them and could not be disclosed. ARC did not follow up on this request.

[61] The document called the “Comprehensive Strategic Multi-Year Plan” is admittedly brief and is more like a public relations document with a collage of colour photos of smiling faces rather than a comprehensive strategic plan that is current. It appears that the Board has not complied with section 169.1(1) of the Education Act requiring a current multi-year strategic plan and also the creation of a five-year plan.

[62] This apparent defect was brought to the attention of the Minister, and was not found to be problematic. The requirement of a Comprehensive Strategic Multi-Year Plan is a collateral issue to the one before this Court as there was no evidence before us as to how the Board’s failure to comply with the requirement to produce such a plan impacted on the Applicants’ opportunity to participate in the consultation process in a meaningful way.

[63] As the ARC did not follow up in any vigorous way with their requests for additional documents, the reasonable inference is that these documents were not reasonably necessary for ARC to perform its functions. For these reasons, I conclude that there is no merit to this argument.

2. Failure to include final submissions in the ARC report

[64] In the finalization of the ARC’s Report, members were supposed to submit final comments to the secretary of the ARC who was to finalize the report and send it to the senior administration.

[65] The secretary providing assistance to ARC was an employee of the Board. She sent the ARC Report to print before incorporating a comment by one ARC member, who had submitted by email on February 6, 2014 a suggestion that the ARC Report include information that the School was eligible for rural funding to top up the School’s operating budget.

[66] The rural funding issue was not addressed in the final ARC Report.

[67] There may have been an omission in the final ARC Report as to the suggestion of one member. However, it is clear from the discussion and presentations made to the Trustees that the rural top up funding had been brought to their attention, and that the Trustees were well aware of this additional available funding for the School when they made the Decision.

[68] There is no merit to this submission.

3. Failure by Senior Staff to Consider the ARC Report

[69] This is the most serious allegation raised by the applicants relevant to the duty of fairness. The timing of the release of the Senior Staff Report raises questions in terms of transparency and was unfortunate in light of the community dynamics.

[70] It is the position of the applicants that the ARC Report was not considered in the preparation of the Senior Staff Report prepared for the Trustees as required by the Board Policy Guidelines.

[71] The ARC Report was sent to the printers on February 10, 2014 and the Senior Staff Report was released within 24 hours on February 11, 2014. The Senior Staff Report specifically referred to only two paragraphs of the ARC Report. The Senior Staff Report entirely dismisses the ARC Report recommendations.

[72] The Board Policy confirms that the Senior Staff Report must review and analyze the ARC Report and incorporate both the senior staff recommendations as well as considering the ARC recommendations:[^15]

Role of the Senior Staff as Part of the ARC Recommendation Process

The final Accommodation Review Committee Report and Recommendations is to be submitted to the Senior Staff. The Senior Staff shall review and analyze the document and present both the ARC Report and the Senior Staff’s Report with its proposals and recommendations to the Director and subsequently the Director or designate will present the reports to the Board of Trustees. The Senior Staff will consider the ARC recommendations within the context of program viability, economic reality and accommodation needs of all students in the Board. The Senior Staff may or may not agree with some or all of the ARC recommendations.

[Emphasis added]

[73] The senior administrator acknowledged that he began to draft the Senior Staff Report six weeks to two months before receipt of ARC Report.

[74] It must be remembered that the Senior Staff were well aware of the ARC’s position, as staff members attended the public meetings. In light of this shared knowledge, the Senior Staff member was able to begin drafting the Senior Staff Report without receipt of the ARC Report in advance of its release date as the issues were clear.

[75] The Senior Staff Report does refer to two crucial recommendations in the ARC Report. As well, there is reference in the Senior Staff Report at other places to the position of ARC.

[76] The applicants argue that it appears by the timing of the release of the Senior Staff Report the recommendations in the ARC Report were essentially ignored, the ARC process was window dressing and that the Decision was a fait accompli.

[77] In assessing the impact of the timing of the release of the Senior Staff Report, it must be remembered that elected Board Trustees make the decision about closure of a school, not the Senior Staff. Both the ARC Report and the Senior Staff Report were presented to the Trustees and were considered by them.

[78] The Board Policy confirms that the Board of Trustees makes the decision for a school closure after receipt of the ARC Report and the Senior Staff Report. The Board can approve none, some or all of the recommendations presented to it by the ARC or the Senior Staff.

[79] The Trustees are not permitted to vote on a school closure issue until 60 days have passed after the two Reports are released, and only after members of the affected community have had the opportunity to review the Reports and make submissions to the Trustees.

[80] After the release of the two Reports, and during this 60-day period, it is clear from the extensive materials before this Court that the applicants engaged in a well-organized, well-researched campaign to support the ARC Report, and to challenge the factual findings and conclusions contained in the Senior Staff Report.

[81] A total of 26 delegates made oral submissions to the Trustees. The content of these submissions is summarized in the record before the Court. As well, CARE sent written materials to the individual Trustees. Some of the Trustees met individually or corresponded with members of CARE.

[82] CARE’s contribution to providing input to the Trustees is an example of democracy at work. There is no doubt from the record before us that the Trustees were fully informed as to the two competing positions contained in the Senior Staff Report and in the ARC Report. Further, there is no doubt that the Trustees were provided with all of the facts both orally and in writing contesting the Senior Staff Report and supporting the ARC Report.

[83] For these reasons, notwithstanding the timing of the release of the Senior Staff Report, the duty of fairness for members of the public to participate in a meaningful way was respected, when assessed in the context of the uncontested objective facts.

4. Errors in the Staff Report

[84] The applicants argue that the Senior Staff Report relies on factual assumptions that are false and misleading, and that the applicants had no opportunity to make effective and meaningful submissions on the erroneous factual information. The false assumptions include:

• The population of Old Town Niagara-on-the-Lake consisted of retirement age residents, not young families;
• Real estate prices at approximately $575,000 per home were prohibitively expensive for young families;
• Enrollment at the School would continue to decline in the future;
• Substantial structural changes at the School were required to bring it into compliance with provincial legislation;
• Students at the School would receive an inferior education;
• Construction of an addition at Crossroads was a more economic option.

[85] A review of the minutes of the three public meetings before the Trustees held after the two Reports had been submitted make it clear that the alleged factual errors in the Senior Staff Report were fully canvassed by the delegates who made submissions before the Trustees.

[86] For instance, at the February 25, 2014 meeting, one delegate “highlighted discrepancies in the ARC and Senior Staff Reports and recommendations and noted factors which have contributed to the declining and projected enrolment at Parliament Oak Public School” (at p. 10). Another delegate spoke in support of “right-sizing” the school (at p. 11). A third delegate highlighted “five sources to evaluate growth in Niagara-on-the-Lake, including new developments for single-family detached homes.” This same delegate suggested there are areas in Old Town in the more affordable price range (at p. 11). A fourth delegate spoke about the discrepancies in the Board’s 2010 projected enrolments for the three schools in Niagara-on-the-Lake, and was asked by a Trustee to explain how enrollments at Parliament Oak could be increased (at pg. 12). A fifth delegate pointed out that the Board’s methodology for its 2013-2014 enrolment projections “did not produce the right answer due to apportionment/retention rates not being indicative of the future” (at p. 12). A Trustee inquired why, if Parliament Oak is valued in the community, so many parents would choose to bus their students to a different school (at p. 12).

[87] At the March 25, 2014 board meeting, a number of delegates spoke about the importance of the School in the Niagara-on-the-Lake community and heritage (at p. 10). Other delegates spoke in reference to questions that had been raised at the previous meeting.

[88] At the April 8, 2014 board meeting, 14 delegates made submissions, covering such topics as the importance of the school to its students and the community, the anticipated number of students in each grade from JK-8 after the removal of French Immersion, and concerns about overcrowding at Crossroads. Trustees asked delegates to provide their projected future enrollment for the Glendale area.

[89] I reiterate that it is not the role of this Court to consider the merits of the Decision. The role of this Court is to determine whether the applicants have met the onus of proving that principles of procedural fairness were not respected.

[90] I conclude that there is no merit to the argument that members of the public did not have an opportunity to respond and make submissions to challenge alleged errors contained in the Senior Staff Report.

5. Time limits imposed

[91] When the delegates made submissions to the Trustees, the applicants argue that the delegates were severely limited by the five-minute cap on each presentation stipulated by Rule 8 of the Board’s Delegation By-laws. Members of Senior Staff, in responding to questions from the Trustees, were not subject to this five-minute cap.

[92] The applicants argue that the time limit placed upon members of the public breaches the applicants’ rights to be heard and their legitimate expectations that they would have an opportunity to present their case.

[93] I note that the five minute/no question rule applies to submissions made by all delegates at any Board meeting, and is not a special limit placed on submissions from delegates in relation to a potential school closure.

[94] It is clear from the materials that CARE members were well-organized and coordinated their efforts. Although each delegate making a submission was limited to a five-minute presentation without the right of Trustees to ask questions, there was no limit on the number of presentations. Delegates organized themselves in an effective manner. In this small community there were 26 delegates making presentations to support the ARC Report and recommendations in the three public meetings.

[95] As well, the delegates had the right to file written materials, and many of the delegates pursued this course of action at the public meetings. Trustees were also presented with packages of written material sent to them personally. Some of the Trustees agreed to meet with CARE members outside the public meetings, whereas others did not.

[96] From the materials it is clear that the applicants collectively effectively informed the Trustees as to their position. The inability for delegates to answer questions posed by Trustees will be considered in the next issue.

[97] There is no evidence that the five-minute limit to an individual delegate’s representation undermined the public’s right to be heard.

6. Private meetings between Senior Staff and Trustees to explain delegates’ submissions

[98] Regarding the meeting in private allegation, the respondent submits that the evidentiary record for this contention is weak. The only evidence appears to be from one of the CARE members in an affidavit where she confirms having been told by various people that Board members met with Trustees after Board meetings to help them digest the delegates’ presentations and to answer their questions and concerns.

[99] It was clear that the Senior Staff took a contrary view on the closure issue from the ARC Report and members of the public from the beginning of the process.

[100] The applicants argue that having the Senior Staff answer the Trustees’ questions arising from the delegates’ presentations was a breach of procedural fairness. This intervention colored, recast and influenced the Trustees’ perceptions of the delegates’ submissions.

[101] The respondent argues that Senior Staff explaining information to Trustees must be distinguished from Senior Staff meeting in private with Trustees to make the ultimate decision as in Vecchiarelli v. Toronto Catholic District School Board, [2002] O.J. No. 2458 (Div. Ct.).

[102] This is an important distinction. The staff meeting with the Trustees to explain information may be acceptable, depending on the facts. However, the second scenario of private meetings to make the ultimate decision is clearly unacceptable.

[103] To ensure transparency, minutes were kept of the meetings between Senior Staff and the Trustees. The questions asked by Trustees and answered by Senior Staff were confirmed in the next public meeting on the record in the minutes of the public meetings before delegations made their presentations. The minutes of each meeting begins with a section “Business Arising from the Minutes – Response to Trustee Questions from (with the date of the previous meeting).”

[104] The precaution of keeping a record of the questions asked and answered and placing any discussions on the public record cured any potential procedural defect or perception of potential improper influence. For these reasons I find that there is no merit to this argument.

Conclusions on the Arguments on the Breach of Duty of Fairness

[105] For these reasons, I conclude that the applicants have failed to prove a denial procedural fairness considering the various allegations made both individually and cumulatively. This ground of the judicial review application is therefore dismissed.

Argument 2: Reasonable Apprehension of Bias

The case law and test of bias as a closed mind

[106] According to the Supreme Court in Newfoundland Telephone at para. 22, “an unbiased appearance is, in itself, an essential component of procedural fairness.”

[107] When determining whether there is a reasonable apprehension of bias, all the individual instances indicating bias must be taken together and considered cumulatively and objectively. See: Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 230.

[108] The respondent argued, and the applicant conceded in argument, that the applicable test for bias in this case is the “closed mind test.”

[109] This concession requires clarification to understand the relationship between the test of the reasonable apprehension of bias and the closed mind test when considering cases of school closings.

[110] In Old Saint Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, at para. 57, Sopinka J. for the majority confirmed that the test for reasonable apprehension of bias in the context of a policy decision, such as a potential school closure, was the closed mind test:

The party alleging a disqualifying bias must establish here is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which had been adopted, would be futile. Statements by the individual member of council, while they may very well give rise to an appearance of bias, will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.

[111] The Supreme Court further addressed the relationship between a reasonable apprehension of bias and a closed mind question in Newfoundland Telephone. The Court confirmed that there is a spectrum of what may constitute a reasonable apprehension of bias depending upon context, taking into account the role of the decision-maker and the decision at issue. A policy decision made by elected board members is at one end of the spectrum engaging the more permissive application of the reasonable apprehension of bias, that being the closed mind test, compared to adjudicative functions of a judge or an administrative tribunal in a hearing engaging the more stringent test of a reasonable apprehension of bias. Cory. J. confirmed this spectrum of what constitutes bias at para. 27:

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

[Emphasis added]

[112] In Sturgeon Falls (Town) v. Ontario, [1997] O.J. No. 3344 (Ont. Gen. Div.) at para. 38, the court considered the Supreme Court’s decisions in Old Saint Boniface and Newfoundland Telephone. Justice Valin determined that the reasonable apprehension of bias test for policy decisions engaged a “closed mind test.” A decision-maker with a closed mind is one that is not capable of persuasion. This test is described in the following manner:

The appearance of bias will only result if it is clear that the decision maker has a completely closed mind. A decision maker is not disqualified by reason of bias unless he/she has prejudged the matter to the extent of being no longer capable of persuasion.

[113] The court in Tracey v. Avalon East School Board (1998), 164 Nfld. & P.E.I.R. 181 (NL SCTD) again applied the closed mind test to a policy decision to close a school. This test is described at para. 23:

… my conclusion is that the opportunity for parents to influence the outcome of a school closure decision requires that their input be given to a board which has not already reached a final determination of the question. In the circumstances, the reasonable apprehension of bias standard is neither appropriate nor necessary. The board is entrusted with making management decisions - a management decision to close a school can only be taken following parental input. The board, as manager, must not have prejudged the issue to the point where parental input is meaningless and a mere formalistic ritual. The ability to persuade and influence requires a mind willing to consider carefully such persuasion and influence. The board’s mind must be open and not closed.

[Emphasis added]

[114] Wherever it falls on the spectrum, the test for bias is objective. In this case, the question that must be answered is whether a reasonable, informed and right-minded person viewing all of the facts would believe that the Trustees had a closed mind before the Decision to close the School because they were not amenable to persuasion.

A review of the allegations of a closed mind

[115] The applicants raise two issues relevant to bias. First they argue that the Trustees are not independent and that they “bended to the will” of the Senior Staff at the Board. Second, they argue that comments made by four of the Trustees confirm a closed mind.

[116] In the first argument, the applicants assert that the institutional structure of the Board and the history with the previous school closing create a reasonable apprehension of bias. The applicants allege that the Director and Senior Staff exert pressure on Trustees to support their recommendations. The applicants argue that the closed mind of the Senior Staff influenced the Trustees. In the past four years, Trustees have always voted in support of senior administration recommendations. In essence, the applicants allege that the Trustees are not independent from the Senior Staff.

[117] Second, the applicants argue that the comments made by four of the eleven Trustees to members of the community prior to the vote leave the public with the impression of closed mind. These comments include:

• One Trustee said “the job of the Trustees is to hire good senior staff. Our senior staff are very smart and good at what they do. Why would we pay them the big bucks if we were not going to support their recommendations? That would make no sense.”
• Another Trustee confirmed that he liked the Senior Staff and feels badly that their numbers were being questioned.
• Another Trustee made a comment that the CARE submissions were tainted and the town planner got “caught with his hands in the cookie jar” on the issue of projected demographics of the Greater Niagara region.
• Another Trustee made a negative personal comment about a person very involved in the CARE efforts, stating that this person was an unfortunate choice of leader as he was not well liked.
• Another Trustee commented that power lies with the Board and that the Trustees are like “rubber stamps” approving the recommendations by Staff.
• Another Trustee asked whether the attempt to keep the School open was “as much about the education of our kids and them achieving success as it is about heritage and landmarks?”

[118] To assess the question of a closed mind, the record must be considered objectively as a whole. The applicants argue that the uncontested facts considered cumulatively illustrate a closed mind.

[119] The applicants argue that the comments made by the Trustees in question led community members to believe that the Board’s decision to close the school was a fait accompli as the Trustees would simply follow the recommendations of the Senior Staff. Community members therefore believed that there was never any chance the School would be kept open regardless of the outcome of the accommodation review process, or the views of the community.

[120] These comments are unfortunate, and considered on their own at first blush may appear to raise valid concerns about potential bias and a closed mind. However, these comments must be placed in the context of a review of the entire record. In particular it is important to consider the work of the ARC, and what occurred at the three meeting of the Trustees with the public after the ARC Report and Senior Staff Reports were presented. In assessing the question of a closed mind there must be a review of the objective facts.

[121] In reviewing the objective facts, first, it is clear from the record that the ARC members took their task seriously and worked independently and diligently. ARC considered two options, one to keep the School open, and one to close the School. The ARC members assessed the facts and the options. The ARC reached its conclusions in a transparent manner after considerable deliberation and recommended that the School be kept open. The members of the community respected and supported the ARC process.

[122] In assessing the question of a closed mind, the context of these comments by the Trustees needs to be considered.

[123] In Newfoundland Telephone, Cory J. confirms at para 29 that a board member expressing strong views before a decision is made does not necessarily indicate bias and that the court must take a flexible approach when considering what constitutes bias:

Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. This does not of course mean that there are no limits to the conduct of board members. It is simply a confirmation of the principle that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered.

[Emphasis added]

[124] I adopt these comments by Cory J. Expressing strong views before a policy decision is made does not necessarily indicate bias and that the court must take a flexible approach when considering the issue. The standard of what constitutes bias varies with the role and function of the Board being considered. Flexibility includes considering the context in which comments are made.

[125] It is obvious that the Decision was difficult for the Trustees and the community. No matter what decision was made, some members of the community would be disappointed.

[126] The applicants and CARE members sent written materials to the Trustees and sought private meetings with them. Some Trustees accepted the invitation and others declined. The unfortunate comments made by the four Trustees occurred in the context of these private meetings or discussions, not in a public forum. The CARE members were engaged in a well-organized campaign to educate and influence the Trustees before the vote to take place on April 22, 2014. In this context, the Trustees, as elected officials, are entitled to voice their opinions contrary to the position of CARE.

[127] In assessing the question of bias, the objective facts must be carefully reviewed. For the following reasons, I conclude that a review of the objective facts confirm that the Trustees were listening, and struggling with a difficult decision after they had received the two Reports and before the vote was held.

[128] After the ARC Report was submitted, a review of the minutes of the three public meetings confirms that the Trustees were alive to the issues raised by ARC and the applicants. The minutes illustrate that the Trustees were listening. They were seeking information from Board Staff and asking questions of the delegates to assist in making their decision:

• One example of the Trustees’ objective consideration of the issues is their direction to Board planning staff to reconsider their enrollment projections in light of the concern expressed by CARE and the ARC report that “using the last three years retention rate at the School was unrealistic.” The Trustees asked that the calculations be redone using the six year rate suggested by ARC. Responding to CARE’s concerns and at the direction of the Trustees, Board planning staff then considered alternative scenarios, which did not demonstrate any significant difference in the enrollment projections.
• Further evidence of the Trustees’ objective consideration of the issues is found when reviewing the questions they asked at the public consultation meetings prior to the vote. For instance the following questions were asked by the Trustees of various delegates:
  • How large urban and rural schools impact students;
  • What the predicted average price of a detached family home will be in Niagara-on-the-Lake in the next five to ten years, and what the current cost is for a new build in Niagara-on-the-Lake;
  • How can enrollment at the School be increased from the Catholic Board projections referenced in their presentations;
  • Whether CARE has conducted research in Old Town to determine how the Town believes the School is valued in the community;
  • How removing French Immersion from the School will address the School’s declining enrollment;
  • What was the number of Kindergarten-aged children from Niagara-on-the-Lake who have gone to the Catholic Board rather than the Public Board in the last four years;
  • What data did CARE have as to anticipated number of students in each grade from JK-8;
  • One Trustee requested clarification regarding Professor Leithwood’s research on optimal school size;
  • One Trustee reiterated that this was an opportunity for Delegations to present information.

[129] The difficult role of the Trustees is confirmed in an email sent by one of the Trustees to a member of CARE on the date of the final meeting when the Decision was made. He confirms that he awaits answers to questions before deciding his vote, and congratulates the public for their input:

I sincerely thank NOTL, CARE, and you for all the time and effort that you have put into this ARC!

It is a difficult decision that trustees will make tonight. I am never sure where that vote will be cast until it is cast and feel that each of my colleagues have labored over what to do.

Conclusions on a Closed Mind

[130] The comments noted by the applicants in the record must be considered in context. They were made in private meetings with CARE members who were trying to educate and influence the Trustee before the vote was taken.

[131] More importantly, the objective evidence confirms that the Trustees did not approach their task with a closed mind. They asked questions and followed up on the concerns raised in the ARC Report and the submissions of the 26 delegates. Considering the Trustees as a group and the evidence as a whole, there is no merit to the argument that their minds were made up before the review process began, or that they were the puppets of the Senior Staff.

[132] At the April 22, 2014 meeting, each Trustee expressed his or her views. Two of eleven Trustees voted to keep the School open.

[133] The test for a closed mind is objective. In this case, the question that must be answered is would a reasonable, informed and right-minded person viewing all of the facts believe that the Trustees had a closed mind? A review of the objective evidence and the uncontested facts viewed cumulatively confirms that the applicants have not met this onus.

Costs

[134] The parties filed written submissions as to costs. We are of the view that this is public interest litigation and there should be no order as to costs. The applicants and their counsel were appropriate and thoughtful in their submissions. This was not a frivolous application and although unsuccessful, was properly brought before the court.

___________________________ J. Wilson J.

Sachs J.

Mesbur J.

Released: , 2015

CITATION: Citizens for Accountable and Responsible Education Niagara Inc. v. District School Board of Niagara, 2015 ONSC 2058

DIVISIONAL COURT FILE NO.: DC-15-105-00

DATE: 20150430

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. WILSON, SACHS, MESBUR JJ.

BETWEEN:

BETWEEN:

CITIZENS FOR ACCOUNTABLE AND RESPONSIBLE EDUCATION NIAGARA INC. (C.A.R.E.) JOSH WIWCHARYK, THOMAS ELTOFT and ROBIN RIDESIC

Applicants

– and –

DISTRICT SCHOOL BOARD OF NIAGARA

Respondent

REASONS FOR JUDGMENT

J. WILSON J.

Released: , 2015

[^1]: Friends of Niagara District Secondary School v. Niagara District School Board, 2010 ONSC 4756 (Div. Ct.).

[^2]: See also Sydenham, at para. 25.

[^3]: Bryden, at para. 24.

[^4]: DeLarue, at paras. 33-34.

[^5]: DeLarue, at para. 33.

[^6]: Sydenham, at para. 53.

[^7]: Sydenham, at para. 52.

[^8]: Sydenham, at paras. 51, 54, 61, 75, 78, and 83.

[^9]: Sydenham, at para. 54.

[^10]: Bryden, at para. 30.

[^11]: Bryden, at para. 25.

[^12]: Ross v. Avon Maitland District School Board, [2000] O.J. No. 5680 (Div. Ct.), at para. 3.

[^13]: Bryden, at para. 24.

[^14]: Bézaire (Litigation Guardian of) v. Windsor Roman Catholic Separate School Board (1992), 9 O.R. (3d) 737 (Div. Ct.), at para. 49.

[^15]: Exhibit E to the affidavit of Cam Hathaway, Tab 1E of the Respondent Application Record.