Setia et al. v. Appleby College; Upper Canada College et al., Intervenors

[Indexed as: Setia v. Appleby College]

Ontario Reports

Court of Appeal for Ontario,

Goudge, Watt and Pepall JJ.A.

December 13, 2013

118 O.R. (3d) 481 | 2013 ONCA 753

Case Summary

Administrative law — Judicial review — Jurisdiction — Divisional Court not having jurisdiction to grant order under s. 2(1)1 of Judicial Review Procedure Act quashing expulsion decision by private school — Jurisdiction to make order under s. 2(1)1 not turning on whether expulsion decision was exercise of statutory power of decision but rather on whether decision was subject to public law and its remedies — Expulsion decision not having sufficient public dimension for application of public law remedies — Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)1.

The appellant was a private school incorporated in 1911 by a private statute. When a student was admitted to the school, his or her parents signed a contract which acknowledged that their child's continued attendance at the school was dependent upon the student's compliance with the school's code of conduct and such other rules as may be announced from time to time. The code of conduct provided that smoking on school property or possession of illegal drugs could result in expulsion, and a lighting of substances policy provided that students found smoking in the school would be expelled. On his last day in grade 12, G was discovered smoking marijuana in the school residence. He was expelled. He and his parents brought an application under s. 2(1)1 of the Judicial Review Procedure Act ("JRPA") for judicial review of the expulsion decision. The Divisional Court held that it had jurisdiction to hear the application as the expulsion decision was the exercise of a statutory power of decision under the appellant's founding statute, and that the respondents were not given an adequate opportunity to be heard before the decision was made. The decision was quashed. The appellant appealed.

Held, the appeal should be allowed.

It was doubtful whether the expulsion decision constituted the exercise of a statutory power of decision. Even if it did, the jurisdiction to make an order under s. 2(1)1 of the JRPA does not turn on whether the decision under review is the exercise of a statutory power of decision. Rather, it turns on whether the decision is the kind of decision that is reached by public law, so that a public law remedy can be applied. While the expulsion decision might to some extent be connected to the appellant's educational role, it was not regulated by the Education Act, R.S.O. 1990, c. E.2, but rather by the contract between parents and the school. Thus, neither the appellant's statutory origin nor its educational mission provided any significant public character to the decision. The appellant's actions could not be seen as being directed, or significantly influenced, by government or as performing a service at the behest of government. The expulsion decision was more private than public in nature. The criteria upon which the decision was made were provided by the private law of the contract between the appellant and parents. The decision did not have a sufficient public dimension. It was not something to which public law remedies could therefore be applied. The Divisional Court did not have jurisdiction to issue the order. [page 482]

Air Canada v. Toronto Port Authority, [2011] F.C.J. No. 1725, 2011 FCA 347, 426 N.R. 131, consd

Other cases referred to

Bezaire (Litigation Guardian of) v. Windsor Roman Catholic Separate School Board (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737, [1992] O.J. No. 1478, 94 D.L.R. (4th) 310, 57 O.A.C. 39, 8 Admin. L.R. (2d) 29, 34 A.C.W.S. (3d) 947 (Div. Ct.); Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Martineau v. Matsqui Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] S.C.J. No. 121, 106 D.L.R. (3d) 385, 30 N.R. 119, 50 C.C.C. (2d) 353, 13 C.R. (3d) 1, 15 C.R. (3d) 315, 4 W.C.B. 178; Mohr v. Vancouver, New Westminster and Fraser Valley District Council of Carpenters, 1988 3189 (BC CA), [1988] B.C.J. No. 2075, 32 B.C.L.R. (2d) 104, 33 Admin. L.R. 154, 12 A.C.W.S. (3d) 399 (C.A.); Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770, [1981] O.J. No. 3187, 131 D.L.R. (3d) 325, 12 A.C.W.S. (2d) 121 (C.A.)

Statutes referred to

An Act to Incorporate Appleby School, 1 Geo. V. c. 140, s. 11

Education Act, R.S.O. 1990, c. E.2 [as am.]

Judicial Review Procedure Act, R.S.O. 1990, c. J.1 [as am.], ss. 1 [as am.], 2(1)1, 2(1)2

Authorities referred to

Mullan, David J., Administrative Law (Toronto: Irwin Law, 2001)

Mullan, David J., Administrative Law: Cases, Text and Materials, 5th ed. (Toronto: Edmond Montgomery, 2003)

APPEAL from the judgment of the Divisional Court (Aston, Lax (concurring) and Chapnik JJ. (dissenting)), [2012] O.J. No. 5270, 2012 ONSC 5369 (Div. Ct.) granting an application for judicial review.

Martin Sclisizzi, for appellant.

Christopher J. Matthews, for intervenors.

Ronald D. Manes and Marco P. Falco, for respondents.

The judgment of the court was delivered by

GOUDGE J.A.: —

Introduction

[1] The appellant, Appleby College ("Appleby"), is a private school in Oakville, Ontario. On June 15, 2010, through the decision of Dr. Michael Peirce, the head of school, it expelled one of the respondents, Gautam Setia ("Gautam"). The issue in this appeal is whether the Divisional Court was correct in finding that it had jurisdiction under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA") [page 483] to grant an order for judicial review quashing that decision.

[2] For the reasons that follow, I conclude that the Divisional Court erred in finding that it had jurisdiction to make the order it did. I would therefore allow the appeal and dismiss the respondents' application for judicial review.

The Facts

[3] Appleby is a private co-educational school for students from grades seven to 12. It was incorporated in 1911 by a Special Act of the Ontario legislature. Section 11 of An Act to Incorporate Appleby School, 1 Geo. V. c. 140 ("Appleby Act") provides the following:

11. The powers of the corporation shall be exercised by the Board which may make and pass by-laws, resolutions, rules and regulations, not contrary to law or to the provisions of this Act, with respect to the conduct and management in all respects of the purposes and affairs of the Corporation and the exercise of the powers hereby conferred, including among all other matters the calling of meetings of the Board, the quorum, and the procedure in all things at such meetings, the appointment, functions, duties and removal of all officers, agents and services and their remuneration, the management and administration of its Colleges and Schools and of all matters and things connected therewith; and the Board may confer upon the officers and persons employed in connection with its undertakings such powers of administration and discipline as it may think necessary.

(Emphasis added)

[4] Public education in Ontario is governed by the Education Act, R.S.O. 1990, c. E.2. As a private school, Appleby receives no public funding pursuant to this Act. Nor is it governed by the provisions of the Act concerning behaviour, discipline and safety. The Education Act does, however, require Appleby to provide a secular education to students and to meet the disclosure and inspection requirements enforced by the Minister of Education.

[5] When a student is admitted to Appleby, his or her parents sign a contract with the school which acknowledges that their child's continued attendance at Appleby is dependent upon the student's compliance with Appleby's code of conduct and such other rules as may be announced from time to time. The code of conduct clearly provides that smoking on school property, or possessing illegal drugs, may result in expulsion. Appleby also has a lighting of substances policy which provides that students found smoking in the college will be expelled.

[6] Gautam began as a student at Appleby in grade seven. On his admission, his parents, the respondents Devinder Singh Setia and Navpreet Setia, signed the contract with Appleby in the terms I have described. On his last day in grade 12, Gautam was discovered with a friend in the school residence where they [page 484] had apparently been smoking marijuana. Gautam admitted doing so. He was expelled the next day by Dr. Peirce, the head of school, who informed Gautam's parents that he would require Gautam to withdraw from the school immediately. Both sides have treated Dr. Peirce's decision as an expulsion.

The Application for Judicial Review

[7] Gautam and his parents brought an application for judicial review of the decision to expel him. The Setias sought an order quashing the decision. The application was brought under s. 2(1)1 of the JRPA. That section reads as follows:

2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[8] A "statutory power" is defined in s. 1 of the JRPA. It includes a right conferred by statute to exercise a "statutory power of decision", which in turn is defined in this way:

"statutory power of decision" means a power of right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[9] The Divisional Court faced two issues on the return of the application.

[10] The first issue was whether it had jurisdiction to make the order sought. Appleby argued that the Divisional Court did not have jurisdiction to judicially review the decision, although it acknowledged that the rules of fairness governed student discipline matters as a matter of contract between Appleby and the Setias. However, the Divisional Court was unanimously of the view that the decision to expel Gautam concerned "administration and discipline" as referred to in s. 11 of the Appleby Act and was therefore a statutory power of decision for the purposes of the JRPA. It said simply that this rendered the decision subject [page 485] to judicial review under that Act. Paragraph 18 of its reasons says this:

Decisions by Appleby's officers concerning "administration and discipline" constitute an exercise of a statutory power. They are subject to judicial review under s. 2(1) of the Judicial Review Procedure Act.

[11] The second issue was whether the process used by Appleby to reach its decision breached its duty of procedural fairness to the Setias and denied them natural justice. By majority, the Divisional Court found that Appleby came to its decision without giving the Setias an adequate opportunity to be heard and consequently ordered that the decision must be quashed. The dissenting judge found no violation of procedural fairness or natural justice and would have dismissed the application for judicial review on its merits.

The Position of the Parties on Appeal

[12] With leave, Appleby appeals to this court. It contests only the Divisional Court's conclusion that it had jurisdiction to issue the order to quash the expulsion decision. If Appleby is unsuccessful in challenging the court's jurisdiction, it does not take issue with the ultimate order granted by the Divisional Court.

[13] Appleby argues that the decision to expel Gautam does not constitute the exercise of a statutory power of decision for the purposes of the JRPA. Moreover, it says that to engage the remedies provided by judicial review, the decision in question must come within the scope of public law and that this requires a broader analysis than whether the decision can be sourced in a statute.

[14] Appleby is supported in its decision by six private schools that were collectively granted intervenor status in this court.

[15] The Setias respond that the Divisional Court was correct to find that it had jurisdiction under the JRPA. They say that the Divisional Court had jurisdiction to issue an order in the nature of certiorari because in all the circumstances Appleby is a quasi-public institution, and the decision to expel Gautam has a public law dimension sufficient for jurisdiction under the JRPA. In addition, they argue that, in any event, the decision was made in the exercise of a statutory power of decision, which is sufficient for jurisdiction under the JRPA.

Analysis

[16] The sole issue in this appeal is whether the Divisional Court was correct in finding that it had the jurisdiction under [page 486] the JRPA to make an order for judicial review quashing the decision to expel Gautam.

[17] The Divisional Court reasoned that Gautam's expulsion constituted the exercise of a statutory power of decision, as defined in s. 1 of the JRPA. It was therefore subject to judicial review under s. 2(1)1 of that Act.

[18] Given that the Divisional Court focused its analysis on the text of the statute, it is useful to begin the assessment of its decision by putting it in the context of the history and purpose of the JRPA. The JRPA was enacted in 1971 in response to the Ontario Royal Commission Inquiry into Civil Rights in Ontario, led by the Honourable James C. McRuer. The commission found that the procedures in Ontario for seeking the various prerogative remedies for relief from administrative action were far too technical and complex. Simplification was required.

[19] The JRPA was the legislative response. In David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001), Professor Mullan aptly described its purpose, at pp. 433-34:

The basis of the Ontario Act was simple. It introduced a single application for judicial review that consolidated all the former public law remedies available in the province with the exception of habeas corpus and quo warranto. On the coming into force of the Act, a challenge to allegedly unlawful administrative action could be commenced by this application for judicial review, and the court could take jurisdiction provided the grounds on which the review application was based and the relief that was sought came within the range of what was previously available by way of relief in the nature of certiorari, prohibition, and mandamus as well as an action for a declaration or an injunction.

(Footnotes omitted)

[20] The prerogative remedies brought together by the JRPA (mandamus, prohibition and certiorari) constitute the mechanisms that have been used by the courts to ensure that public decision-makers observe the principles and rules of public or administrative law by which they must function. While the notion of public law defies full and precise definition, the courts use the prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature.¹

[21] In this sense, public law is to be contrasted with private law, which deals with private persons and bodies and their property and relationships. The challenge is to describe the respective domains of these two branches of law, and thus to determine [page 487] whether public or private law principles and remedies govern in a particular case.

[22] In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, the Supreme Court of Canada addressed the domains of private and public law in the context of a public employee who holds the status of a public office holder but who also has a contract of employment protecting against wrongful dismissal. The court said that the remedy for that individual is in private law not in public law. That is, relationships that are in essence private in nature are redressed through private law not public law.

[23] In Martineau v. Matsqui Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] S.C.J. No. 121, Dickson J. (as he then was), concurring, described the scope of public law in the context of the public law remedy of certiorari. The order granted by the Divisional Court pursuant to s. 2(1)1 of the JRPA was just this sort of order. It quashed the decision to expel Gautam. That is, it granted relief that prior to the JRPA would have been an order in the nature of certiorari. Dickson J. described when an order of this kind is available, at pp. 622-23 S.C.R., and again, at p. 628 S.C.R., of Martineau:

In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.

Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.

[24] The question in this appeal is whether the Divisional Court had jurisdiction under the JRPA to judicially review the expulsion decision. In other words, does public law reach this decision so that the public law remedy in the nature of certiorari available under the JRPA can be applied to it?

[25] The Divisional Court's answer turned entirely on its conclusion that the expulsion decision constituted the exercise of a statutory power of decision. This made the decision, in its view, subject to the order for judicial review under the JRPA sought by the Setias.

[26] In my view, it is doubtful that the expulsion decision qualifies as the exercise of a statutory power of decision. The JRPA definition requires that the power to make the decision be conferred "by or under a statute". The legislation must authorize the decision-maker to make the decision in question. It is this [page 488] effecting of the will of the legislature by the decision-maker that gives a sufficient public character to this decision to warrant judicial review. In Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770, [1981] O.J. No. 3187 (C.A.), this court put the point this way, at p. 772 O.R.:

[I]t is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a "statutory power of decision"; and I think that must be a specific power or right to make the very decision in issue.

[27] Here the Appleby Act simply authorized the board of Appleby to confer on its officers and employees "such powers . . . of discipline as it may think necessary". It was the board not the legislature that decided the power to expel was necessary, and that the head of school should exercise that power. It is at least arguable that the nexus between the Appleby Act and the expulsion decision is not specific enough to make the latter a statutory power of decision. The expulsion decision arguably effects the will of the board more than the will of the legislature.

[28] However, assuming that the expulsion decision constitutes the exercise of a statutory power of decision, the more important question is whether this necessarily means that it can be reviewed by public law and hence reached by the public law remedy imposed by the Divisional Court.

[29] It must be underlined that the remedy quashing the expulsion decision was made pursuant to s. 2(1)1, not s. 2(1)2 of the JRPA: it was a remedy that prior to the JRPA would have been an order in the nature of certiorari. There is nothing in the JRPA that expressly suggests that the jurisdiction to make an order under s. 2(1)1 is determined by whether the decision under review is the exercise of a statutory power of decision.

[30] As Professor Mullan has said in Administrative Law: Cases, Text and Materials, 5th ed. (Toronto: Edmond Montgomery, 2003), at p. 1111, while early judicial interpretations of the JRPA linked the availability of relief in the nature of the prerogative writs under s. 2(1)1 to the requirement of a statutory power of decision under s. 2(1) 2, that approach was not sustainable, and has since been clearly rejected by cases like Bezaire (Litigation Guardian of) v. Windsor Roman Catholic Separate School Board (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737, [1992] O.J. No. 1478 (Div. Ct.). The public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.

[31] The same is true in British Columbia, which has legislation in most respects identical to the JRPA. In Mohr v. Vancouver, New Westminster and Fraser Valley District Council of Carpenters, 1988 3189 (BC CA), [1988] B.C.J. No. 2075, 32 B.C.L.R. (2d) 104 (C.A.), [page 489] the British Columbia Court of Appeal made clear that an order for judicial review quashing a decision was not dependent upon that decision being a statutory power of decision.

[32] In my view, the jurisdiction to make an order for judicial review quashing the expulsion decision does not depend on whether the decision is the exercise of a statutory power of decision. Rather, the jurisdiction provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied. This reflects the purpose of the JRPA, namely, to provide a simplified process to obtain public law remedies in those circumstances where public law applies.

[33] The assessment of whether a particular decision is subject to public law and its remedies requires a careful consideration of the relevant circumstances of the particular case informed by the experience of the case law. I agree with the approach of Stratas J.A. in Air Canada v. Toronto Port Authority, [2011] F.C.J. No. 1725, 2011 FCA 347. He said this, at para. 60:

There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether or not any one factor or a combination of particular factors tips the balance and makes a matter "public" depends on the facts of the case and the overall impression registered upon the Court.

[34] In his very helpful reasons, Stratas J.A., at para. 60, described a number of relevant factors disclosed by the case law:

-- the character of the matter for which review is sought;

-- the nature of the decision-maker and its responsibilities;

-- the extent to which a decision is founded in and shaped by law as opposed to private discretion;

-- the body's relationship to other statutory schemes or other parts of government;

-- the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;

-- the suitability of public law remedies;

-- the existence of a compulsory power;

-- an "exceptional" category of cases where the conduct has attained a serious public dimension. [page 490]

[35] Four are particularly germane in this case.

[36] The first factor is the nature of the decision-maker and its responsibilities. Here Appleby is the effective decision-maker. It was created by statute, clearly an important consideration that often points strongly towards permitting judicial review. The public flavour this provides is however significantly diminished in this case, because the Appleby Act is a private statute not part of the general law, and hence not a law with wide public effect.

[37] Appleby's mission is to engage in educating young people, an important public function which no doubt gives its educational activities a public character, certainly to the extent that Appleby is regulated by the Education Act in doing so. While there may be a public dimension to certain aspects of Appleby's conduct which are subject to judicial review, this does not mean that every action taken by Appleby is subject to judicial review. Many of its decisions will concern only private matters with limited connection to Appleby's educational role under the Education Act. The decision taken by Appleby here is one of discipline of a student. While that decision may, to some extent, be connected to Appleby's educational role, it is not regulated by the Education Act, but rather by the contract between parents and the school. Thus, neither Appleby's statutory origin nor its educational mission provide any significant public character to the expulsion decision.

[38] The second consideration is the decision-maker's relationship to other parts of government or other statutory schemes. While important in some cases, that is of no moment here. Appleby is a private school whose only interaction with government is its modest relationship to the Ministry of Education. Its actions can hardly be seen as being directed, or significantly influenced, by government, or performing a service at the behest of government. This makes it less likely that its discipline decisions are seen as a public matter.

[39] The third relevant consideration here is the character of the matter for which review is sought. That matter is the expulsion decision concerning an individual student at Appleby, a private school. It is the kind of decision that could affect only the students who choose to attend Appleby. It is not of broader import to members of the public. In my view, that tends to make the decision more private than public in nature.

[40] The final, and in some ways the most important, consideration is the extent to which the expulsion decision is shaped by private law rather than public law. That decision is sourced in the private legislation of the Appleby Act, but only in the sense that the Act establishes the board of governors and gives it the [page 491] discretion to confer on its head of school the powers of discipline it thinks necessary. However, the criteria upon which the expulsion decision is made are provided by the private law of the contract between Gautam's parents and Appleby. Although the Setias seek to use public law to impose procedural obligations on Appleby in making that decision, Appleby acknowledges that the Setias are protected in this regard by their contract. The analogy with Dunsmuir suggests that in these circumstances, the Setias' remedy should be in private law, not in public law.

[41] In summary, even if the expulsion decision is considered a statutory power of decision because it can be said to be ultimately sourced in legislation, that does not answer the question raised in this appeal. I recognize that in many cases the presence of a statute will strongly point to the availability of judicial review. However, here the other considerations I have outlined must also be placed in the balance to determine whether the Divisional Court had jurisdiction under s. 2(1)1 of the JRPA to issue the order for judicial review quashing the expulsion decision. When that is done, I think the conclusion is clear that the decision is not the kind of matter reached by public law. It simply does not have a sufficient public dimension. It is not something to which public law remedies can therefore be applied. The Divisional Court did not have jurisdiction under the JRPA to issue the order for judicial review.

[42] The appeal must be allowed. The appellant and the respondents can make written submissions for costs on the appeal and in the Divisional Court. They must be no more than eight pages, and are to be filed within three weeks of the release of these reasons. The intervenor does not seek costs and is excluded from any further costs order.

Appeal allowed.

Notes

1 See the discussion in Administrative Law, pp. 1-2.

End of Document