Court File and Parties
Divisional Court File No.: 653/22
Superior Court of Justice – Ontario Divisional Court
Re: Mao Ye, Applicant And: Toronto District School Board, Respondent
Before: Nishikawa J.
Counsel: Mao Ye, in person Jennifer Saville, for the Respondent
Heard at Toronto: April 14, 2023 (by videoconference)
Endorsement
Overview
1The Applicant, Mao Ye, is an adult over the age of 21 who submitted an application for admission to two secondary school programs offered by the Respondent, Toronto District School Board (“TDSB”). The Applicant was not admitted to the programs and was referred to the TDSB’s continuing education office.
2The Applicant brought an application for judicial review relating to his application to the TDSB. As further detailed below, the decision or action being challenged remains unclear.
3The TDSB brings a motion to quash the application for judicial review on the grounds of standing, delay, jurisdiction, and justiciability.
4For the reasons that follow, the motion is granted. The application for judicial review is dismissed.
Background
5The TDSB is an English-language school board operating in the City of Toronto. The TDSB offers approximately 40 specialized programs at the secondary school level providing specific curriculum focus such as Arts, Athletics, Math, Science and Technology, among others.
6The Applicant is an adult over the age of 21 who resides in the City of Markham in the Regional Municipality of York.
7On May 25, 2022, after years of consultation and review, the TDSB passed Policy P100 Student Interest Programs (the “Policy”). The Policy sets out, among other things, the following: a standard, centralized application process for student interest programs; a random selection process when demand exceeds available space; and a certain allocation of spaces available in a student interest program to students self-identifying as one of the currently and historically underserved and under-represented communities in the programs, with the goal of attaining a student population that better reflects the broader demographic. The Policy also gives admission priority to students who are residents of the City of Toronto.
8On October 26, 2022, a motion to reconsider the Board’s decision to pass the Policy was defeated.
9The Applicant participated in public consultations during the TDSB’s secondary program review. The Applicant also filed an application with the Human Rights Tribunal of Ontario, which was dismissed.
10During the application period for student interest programs for the 2023/24 school year, the TDSB received approximately 5,930 applications for approximately 2,417 spots in 40 student interest programs.
11On November 17, 2022, the TDSB received the Applicant’s application to attend Grade 9 in the Talented Offerings for Programs in the Sciences (“TOPS”) program at Marc Garneau Collegiate Institute or the Arts program at Claude Watson at Earl Haig Secondary School. In his application, the Applicant identified his current grade as “12”.
12On December 8, 2022, the Applicant was directed, pursuant to s. 6.5 of TDSB Operational Procedure PR518 regarding Admission Eligibility Requirements, to apply for continuing education credits or adult education schools. Section 6.5 states that students are eligible to attend school until the year in which they turn 21 years of age, after which they may be directed to continuing education credits or adult education schools. It is not known whether the Applicant applied for continuing education.
13The Applicant filed a notice of application for judicial review on November 28, 2022. At a case management conference, the Applicant was directed to amend the notice of application for judicial review to state the decision of which review was sought, the grounds for review and the relief sought. The Applicant was also advised that a document filed with the notice of application entitled “Description of the Decisions” was not a proper pleading and would not form part of the notice of application for judicial review. The Description of Decisions details the Applicant’s objections to the Policy and the Board’s By-law regarding reconsideration. The document also attaches screen shots and redacted email correspondence with the TDSB.
14On January 13, 2023, the Applicant filed an Amended Notice of Application for Judicial Review (the “Application”). The Applicant included an “Amended Description of Decisions” dated January 13, 2023. In the Application, the Applicant seeks the following relief:
(1) For an admission to any Ontario secondary school or program, specifically to any one at the Toronto District School Board (the “TDSB”) in this Judicial Review Application,
(a) Declare or affirm any Ontario prospective or present secondary student’ statutory right to attend the school or program for secondary education, for any of the valid purposes and subject to only the specific conditions, as enumerated in the Ontario Education Act;
(b) Prohibit all extraneous considerations or restrictions, including but not limited to residence, race, gender, the number of schools or programs a student is allowed to apply for, etc., except the conditions or restrictions explicitly provisioned in the Education Act. This includes but is not limited to,
(i) Prohibition of 50% reservation of the TOPS or MaCS program’s seats for the local area; and
(ii) Invalidation of any school board policies that enforce any extraneous considerations or restrictions, including but not limited to removal of the cap for the number of schools or programs a student may apply for;
(c) Restore the school principal’s statutory power at the school level to make the (initial) admission decision;
(d) Allow the school principal at their discretion to open and conduct an additional application and admission process until July 31, 2023 for School Year 2023-2024, subject to only “accommodation” restrictions as decided by the school, and without the interference or intervention from the school board; and
(e) The Ministry of Education shall instruct all Ontario school boards to follow the above remedies;
- For the TDSB Bylaws,
(a) Prohibit any provision that directly or indirectly restricts or limits a Board of Trustees’ full power to reconsider or make decisions from the starting of its term; and
(b) Order that any key revision in the Bylaws must be fully and well informed to all the Trustees of the Board before voting.
15Despite having been advised by the Court that the Description of Decisions was not a proper pleading and did not form part of the Notice of Application, the Applicant also filed an Amended Description of Decisions. Although the Applicant filed an affidavit on the TDSB’s motion to quash, he did not include the Amended Description of Decisions or attached documents as exhibits to his affidavit. Nonetheless, for the purposes of this motion, the TDSB does not object to this Court taking the Amended Description of Decisions into consideration to shed light on the nature of the application for judicial review.
16Despite multiple case management conferences and directions, the basis for the application for judicial review remains opaque. While the Applicant maintains that he does not challenge the Policy, in the Application and Amended Description of Decisions, he objects to admission process because it considers “extraneous considerations” of race, gender, and local area residency, which he states are not authorized under the Education Act, R.S.O. 1990, E.2. While the Applicant attempts to distinguish the admission process from the Policy, the admission process is guided by the Policy. The Applicant also challenges s. 5.15.25 of the TDSB’s By-laws, which state that a previous decision of the board cannot be reconsidered for at least 12 months after the decision was made, unless a two-thirds majority votes in favour of reconsideration.
Issues
17The issues raised by the TDSB’s motion to quash are as follows:
(a) Does the Applicant have private interest standing to bring the application for judicial review?
(b) Should the Applicant be granted public interest standing to bring the application for judicial review?
(c) Does this Court have jurisdiction to hear the application?
(d) Should the application be dismissed for delay?
(e) Are the issues raised by the application justiciable?
Analysis
The Test on a Motion to Quash
18The test on a motion to quash an application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the application cannot succeed: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383 (Div. Ct.), at para. 27. This standard applies to issues of standing, jurisdiction, justiciability or other defects on the face of the Application: Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778 (Div. Ct.), at para. 8.
Does the Applicant Have Private Interest Standing?
19The issue of public and private interest standing was recently examined in detail by this Court in Kilian v. College of Physicians and Surgeons, 2022 ONSC 5931 (Div. Ct.). A party must have either private interest standing or public interest standing to bring an application for judicial review. For private interest standing, the applicant must show a direct, personal interest in the operation or application of a law: Finlay v. Canada (Minister of Finance), 1986 6 (SCC), [1986] 2 S.C.R. 607, at p. 619. A “sense of grievance” is not sufficient, a person must have a “personal legal interest” in the outcome: Landau v. Ontario (Attorney General), 2013 ONSC 6152, at para. 16.
20The relevant factors in determining whether there is such an interest include: the statutory purpose, the subject matter of the proceeding, the person’s interest in the subject, and the effect that the decision might have on that interest: Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, [2016] N.S.J. No. 435, at para. 42.
21In my view, the Applicant does not meet the test for private interest standing. He has no personal legal interest in the Policy. The fact that the Applicant applied to attend a student interest program offered by the TDSB is not a sufficient basis to ground private interest standing to challenge the Policy. The Applicant is not entitled to attend a student interest program. He has not demonstrated that he meets the requirements of s. 49.2 of the Education Act, which provides that an adult may be entitled to take a course at a secondary school if the board does not have a course in continuing education that the adult requires to obtain their diploma or to be admitted to a post-secondary program. In any event, he could not meet those requirements. A student interest program is not a requirement to obtain an OSSD or for entry into a post-secondary program.
22It is worth noting that in the Application, the Applicant does not specifically challenge the TDSB’s direction that the Applicant apply to a continuing education program. He has not stated that he applied for continuing education. If the Applicant were to be granted standing, any person could challenge the Policy by virtue of having applied to a student interest program.
23The Applicant has even less of a direct, personal interest in the operation of the By-law that he challenges. The By-law is an internal governance mechanism for the Board. The failure of the motion to reconsider the Policy does not give the Applicant private interest standing to challenge the By-law that governed.
Should the Applicant be Granted Public Interest Standing?
24At the hearing, the Applicant advised that he was not seeking public interest standing. In any event, in the circumstances of this case, I would not grant the Applicant public interest standing.
25In determining whether to grant public interest standing, the court considers the following factors:
(i) Whether there is a serious justiciable issue;
(ii) Whether the party bringing the proceeding has a real stake or a genuine interest in the outcome; and
(iii) Whether the proceeding is a reasonable and effective means to bring the issue before the courts.
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 54, [2012] 2 S.C.R. 524, at para. 2.
26The Applicant does not satisfy any of the three elements of the test for public interest standing. As detailed further below, the Applicant has failed to raise a serious justiciable issue. The Applicant makes vague challenges to the Policy and By-law simply because he objects to them. The Applicant lacks a real stake or genuine interest in the outcome. Moreover, the application for judicial review is not a reasonable and effective means of bringing the issue before the courts.
27As a result, the Applicant would not meet the test for public interest standing.
Does This Court Have Jurisdiction to Hear the Application for Judicial Review?
28Based on my finding that the Applicant lacks private interest standing, and that he would be unable to satisfy the test for public interest standing, the application for judicial review must be dismissed.
29The TDSB further submits that this Court lacks jurisdiction to hear the application for judicial review because the Applicant seeks declaratory and injunctive relief, as excerpted from the Application above.
30Pursuant to s. 2(1)2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), where an applicant seeks declaratory or injunctive relief, such relief can only be granted in respect of the exercise or refusal to exercise a “statutory power”. A “statutory power” means a power or right conferred by or under a statute:
(a) make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or refrain from doing any act or thing that, but for such requirement such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.
JPRA, s. 1.
31A “statutory power of decision” is defined, in part, as a power or right conferred by or under a statute to make a decision prescribing the legal rights, powers, privileges, duties or liabilities of any person or party or the eligibility of any person or party to receive a benefit or licence. For s. 2(1)2 to apply, there must be a direct statutory authority to make the specific decision being challenged: Paine v. University of Toronto (1981), 1981 1921, 34 O.R. (2d) 770; Sprague v. Ontario, 2020 ONSC 2335 (Div. Ct.), at para. 20.
32As noted above, the Applicant does not seek review of a particular decision, let alone a decision made pursuant to the exercise of a statutory power. Because there was no exercise of a statutory power of decision, judicial review under s. 2(1)2 is not available and the Court cannot grant the declaratory relief sought by the Applicant: Association of Professors of the University of Ottawa v. University of Ottawa, 2018 ONSC 1191, at paras. 4-6.
33The student interest programs and the Policy setting out the admission process are not the product of the exercise of a statutory power of decision. Under s. 171(7) of the Education Act, the TDSB has a broad mandate to “determine the number and kind of schools to be established and maintained and the attendance area for each school… in accordance with policies established by the board from guidelines issued by the Minister[.]” Under s. 169.1(1)(3) of the Education Act, the TDSB is also empowered to “develop and maintain policies and organizational structures that” promote the goals referred to in the Act and encourage pupils to pursue their educational goals. There is no provision in the Act that gives the board the authority to offer student interest programs, that requires that the board to offer such programs or that prescribes a manner in which such programs are to be offered.
34The Applicant relies on s. 5(1) of the JRPA, which establishes the timeline within which an application for judicial review must be brought, to argue that judicial review is available for a “matter” and not just a decision. Under s. 2(1)2, however, the relief sought by the Applicant is only available where there is an exercise of a statutory power. As discussed above, the Application does not involve a statutory power of decision and does not otherwise satisfy the definition of the exercise of a statutory power.
35The Applicant submits that the TDSB can only act if a specific provision in the Education Act allows it to take action. If the Applicant’s position were correct, and a statutory power to act were required, the TDSB would not be able to offer student interest programs. The Applicant further relies on ss. 39-41 of the Act to argue that only the principal of a school has authority to accept students to a school and seeks to have that “right” restored. This is an incorrect reading of those provisions, which do not grant principals sole authority to admit out of district students to secondary schools.
36This court has repeatedly held that “attendance of children at a particular school is not a legal right, benefit or licence. No pupil, therefore, has ‘any vested interest’ in any single school.”: Jackson v. Toronto Catholic School Board, 2006 23951 (Div. Ct.), at para. 68. In Chang McLean v. Toronto District School Board, 2021 ONSC 6151 (Div. Ct.), this court found that it was settled law that a student has a legal right to attend a school in section or district where they reside but not a school of their choice. In that case, the reallocation of French immersion programs was found not to affect the rights or privileges of students. As a result, the court had no jurisdiction over the reasonableness of the decision.
37In respect of the By-law, under s. 58.5(1) of the Education Act, the TDSB is a corporation with all the powers that are conferred or imposed on it under the Act or any other statute. The TDSB is entitled to pass by-laws that govern the conduct of Board and committee meetings, including restrictions on the ability to reconsider past decisions. The By-law that the Applicant seeks to challenge does not affect his rights, interests, or privileges.
38Based on the foregoing analysis, the application is not amenable to judicial review. I find that it is plain and obvious that the Application cannot succeed. As a result, I find it unnecessary to consider the TDSB’s submissions regarding the issues of delay and justiciability.
Conclusion
39Accordingly, the application for judicial review is quashed.
40The TDSB seeks its costs of the motion and application in the amount of $12,798, all-inclusive. The Applicant sought an equivalent amount in the event that he was successful but left the amount to the court’s discretion. As the successful party, the TDSB is entitled to costs. I find the amount somewhat high, given the issues, but acknowledge that multiple appearances were required. I fix costs of the application and motion at $8,000, all-inclusive, which I find to be fair and reasonable in the circumstances, payable by the Applicant to the Respondent.
“Nishikawa J.”
Released: May 15, 2023