CITATION: Chang Maclean v. Toronto District School Board, 2021 ONSC 6151
DIVISIONAL COURT FILE NO.: CVD-TOR-18-20JR
DATE: 20210917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, L.A. Pattillo and Kristjanson JJ.
B E T W E E N:
LAUREN CHANG MACLEAN,
Lucas E. Lung, for the Applicants
BEVERLEY BLAIR CHANG
CHARBONNEAU, minor, by her litigation
guardian Lauren Chang MacLean, JOANNE
NASH, and PAUL THOMAS STEPHEN
BRYAN PATTERSON, minor, by his
litigation guardian Joanne Nash
Applicants
- and -
TORONTO DISTRICT SCHOOL BOARD
Gerald Chan and Fredrick Schumann and
Pam Hrick, for the Respondent
Respondent
Heard by Videoconference: August 5, 2020
REASONS FOR DECISION
D.L. Corbett j.:
[1] The applicants seek judicial review of the decision of the respondent school board to reduce the number of French immersion senior kindergarten classes at Palmerston Avenue Junior Public School in September 2020.
[2] By endorsement released to the parties August 8, 2020, this court stated as follows:
[1] This application was scheduled on an expedited basis because the parties require a decision which could be implemented for the upcoming 2020-21 academic year.
[2] The court heard a full day’s oral argument from the parties on August 5, 2020. The issues are important to the parties and were presented thoroughly and with great skill by all counsel. At the conclusion of the hearing, the court advised that it would deliver its decision as soon as possible, likely with reasons to follow later.
[3] We are all of the view that the application for judicial review be dismissed with costs payable by the applicants to the respondent in the agreed amount of $15,000 inclusive.
[4] Our reasons for this decision will follow in due course.
These are the reasons for this decision.
[3] In sum, the impugned Board decision concerns reallocation of programs within the Board district and does not entitle the Applicants to judicially review the decision in this court. While the Board failed to follow a published procedure, it explained its choice of procedures, its choice of procedures was not procedurally unfair, and the underlying decision was substantively reasonable.
Issues
[4] The parties identified the following issues on this application:
a. Does the Court have jurisdiction to review this Board decision?
b. Did the Board’s decision breach a duty of procedural fairness?
c. Was the Board’s decision substantively unreasonable?
d. If the Decision was procedurally unfair and/or unreasonable, what is the appropriate remedy?
Analysis
Jurisdiction
[5] The TDSB does not dispute, for the purpose of this case, that the TDSB is a public body that has powers to affect individual rights, privileges and interests such that the court has jurisdiction under s. 2(1) of the Judicial Review Procedure Act. However, as discussed below, the decision in question is not amenable to review for procedural fairness, since it does not affect the rights, interest, or privileges of the Applicants, and the TDSB did not create a legitimate expectation that a different process would be followed.
No Breach of the Duty of Procedural Fairness
(a) The Decision Does Not Affect the Rights, Interest or Privileges of the Applicants
[6] The School has had two French immersion kindergarten classes for the past fifteen years. The Board decided to reduce this to one French immersion class for September 2020. As a result, there would be insufficient spaces in the School’s French immersion kindergarten class to accommodate all the students wishing to enrol in the class. Students not placed in the School’s French immersion kindergarten class could enrol at another school in French immersion, or could enrol at the School, but not in French immersion. The other school, Dewson, is less than three kilometres from Palmerston, in central Toronto.
[7] It is settled law in Ontario that a student has a legal right to attend a school in the section or district where they reside, but not a right to attend the school of their choice.[^1] “[A]ttendance of children at a particular school is not a legal right, benefit or license. No pupil, therefore, has ‘any vested interest’ in any single school.”[^2]
[8] The decision in question was to allocate incoming students as between French immersion programs. The cases hold consistently that no duty of fairness arises from the decision of a school board to reallocate students from one school to another.[^3] The decision is a legislative or general decision, based on policy grounds, and not generally subject to the duty of fairness except as discussed below.
[9] This is not a close call in this case. In Vanderkloet, the Court of Appeal found that reallocating students from a school to three other schools, to reduce the range of grades offered at the original school, did not give rise to a duty of fairness to affected students. In DeLarue, a decision to consolidate and relocate programs across several locations, affecting many students, did not give rise to a duty of fairness.
[10] In the case at bar, unlike in Vanderkloet and DeLarue, the Applicants are not being forced to change schools. They were given a choice: enrol at Dewson in a French immersion program or stay at Palmerston in a regular class. On the authority of Vanderkloet and DeLarue, and consistent authority cited in those decisions, the decision to reallocate a French immersion class to Dewson from Palmerston, does not affect the “rights, interests or privileges” of the applicants.
(b) No Additional Procedural Protections Required
[11] It follows from my conclusion that the “rights, interests or privileges” of the applicants are not affected by the impugned decision of the Board that there is no duty of procedural fairness that arises in respect to the decision. However, a legislative or general decision that would ordinarily not give rise to a duty of procedural fairness may attract some procedural protections by the doctrine of legitimate expectations if the body has bound itself by an action that creates a legitimate expectation that a particular process will be followed in making the decision.
[12] The applicants argue that there was a Board policy in place, PR577, which required that certain procedural steps be taken before the Board took the impugned decision. The applicants argue that they “had a legitimate expectation that any significant change to the French Immersion program at Palmerston would be made in accordance with the process set out in PR577. The applicants had a reasonable expectation that TDSB would comply with its own procedures.”
[13] I do not agree. As explained in the Board’s evidence, the Board policy that applied to the impugned decision was P068. That Policy was followed. P068 required that notice be given in advance of implementation of “class contraction decisions” where practicable. It did not require advance notice or any consultation process before the decision was taken.
[14] The applicants argue, with some force, that PR577, on its face, entitled them to the process set out in that Policy and to at least one year’s notice of the impugned decision. The Board responds that PR577 was “outdated” and had been “superseded” by subsequent policies and was “in the process of being rescinded”.
[15] The Board should, of course, keep its policies and procedures up to date. But mistakes will happen. It is apparent when reading possible applicable policies (P068, P598 and P577) that there was a conflict within them. The Board explained to the applicants why P068 and P598 were the applicable policies and the Board followed those policies.
[16] The record is clear that the Board proceeded throughout on the basis of P068 and P598, which were publicly available and stated to be the applicable policies. Given the more recent published policies applicable to the decision, the Board’s failure to keep its published policies up to date did not create a legitimate expectation that the notice requirements of PR577 would apply to supersede the more recently enacted policies.
[17] The Board is entitled to deference in its choice of procedures, and its decision that the applicable policies were P068 and P598 is entitled to substantial deference in this court. The impugned decision was made to deploy overall Board resources efficiently and to promote the viability of the English stream program at Palmerston. The Board was entitled to decide that continued references to P577 in its published policies was an error, was “outdated” and “superseded”, and to proceed on the basis of P068 and P598.
[18] The Board placed its decision on appropriate procedures in the following context, which I accept:
Placing applicants into schools is a complex process that must be completed quickly. Each year, the TDSB receives between 3,500 and 5,000 applications. It must place those applicants at its 71 French Immersion schools. It takes into account proximity, balance between English and French Immersion tracks, and staffing efficiency. It must process applications, make offers, receive responses, and determine final placements. It must do all this between when the application period ends (in 2019, on December 6) and when staff allocations are due under the TDSB’s collective agreement (in late February or early March).[^4]
Given this context – which is the usual context in which allocation decisions are made – it would not be feasible to follow P577 and give affected persons one year’s notice.
[19] Finally, I do not accept that the failure to give one year’s notice has worked its own unfairness on the applicants. The applicants were given notice of the impugned decision shortly after it was taken, early in 2020. Although the applicants had to decide on the offer of a French immersion placement at Dewson quickly, they had roughly eight months to sort out arrangements for transportation and daycare. There is no evidence that an additional four months’ notice would have facilitated those tasks. No other prejudice is established on the record by the failure to give a year’s notice rather than the notice that was actually given in this case.
The Decision Was Substantively Reasonable
[20] The substantive reasonableness of the decision is not within this court’s jurisdiction in view of my conclusion that this matter is not judicially reviewable. However, the merits of the decision would have weighed in my consideration of remedy if I had concluded that the Board acted unfairly in not following P577. In my view, the impugned decision is reasonable, and I would not have set it aside even if I had concluded that there had been procedural unfairness.
[21] The effect of the decision was to locate an additional French Immersion class at Dewson and to reduce the number of French Immersion classes at Palmerston from two to one. If the Board had decided that the class would be at Palmerston, rather than Dewson, then a different group of families would have been faced with the prospect of enrolling their children at a school within their district other than the school closest to them, with potential complications arranging transportation and daycare for their children.
[22] The two schools are about 2.5 kilometres apart, a driving distance of 6-8 minutes, depending on traffic. Obviously, this is not walking distance for parents with children of kindergarten age, but the distance is a trivial redirection in the context of allocating school placements efficiently. As noted by the Board in its factum, many families in Toronto must arrange much longer commutes for their children in order to enrol them in a French Immersion program.
[23] The applicants raised heightened difficulty arranging suitable daycare for their children at Dewson. The parties agree that this is not an issue that the Board is required to take into account in making its decisions. Arranging suitable daycare is the responsibility of parents, not the Board. Daycare difficulties are not a basis on which the applicants are entitled to insist that a second French immersion class remain at Palmerston.
[24] Standing back from the decision, it is clearly reasonable. The alternatives were that a different group of families (those sending their children to Dewson) would be faced with greater challenges to access French Immersion programs, or that the Board would be faced with staffing and running two classes of French Immersion where it could otherwise have run only one class – an additional expense for the Board.
Remedy
[25] There is no substantive unfairness in the decision. The failure to give a year’s notice is not shown to give rise to prejudice. The other two options available to the Board – relocating the Dewson class to Palmerston – or running two classes and failing to optimize use of Board resources – would impose negative consequences on other stakeholders in the system. If I had concluded that there had been procedural unfairness, then I would have made a declaration to this effect, but I would have declined to grant the requested remedy of quashing the impugned decision.
Disposition
[26] For these reasons the application was dismissed, with costs from the applicants to the respondent in the agreed amount of $15,000, inclusive.
[27] The court regrets the delay providing these reasons to the parties. As the parties understand, the court expedited this case to arrange a timely hearing and decision prior to the start of the 2020-21 school year, all amid the challenges of the COVID-19 pandemic and the court’s summer schedule, when judicial resources are scarce. Resources have been stressed throughout the pandemic, with immediate and pressing matters receiving the court’s highest priority. Providing reasons for a decision already taken, from which no appeal is pending in the Court of appeal, has been accorded lower priority than other demands on the court’s resources during this difficult time.
D.L. Corbett J.
I agree: _______________________________
L.A. Pattillo J.
I agree: _______________________________
Kristjanson J.
Released: September 17, 2021
CITATION: Chang Maclean v. Toronto District School Board, 2021 ONSC 6151
DIVISIONAL COURT FILE NO.: CVD-TOR-18-20JR
DATE: 20210917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, L.A. Pattillo and Kristjanson JJ.
BETWEEN:
Lauren Chang MacLean, Beverley Blair Chang Charbonneau, minor, by her litigation guardian Lauren Chang MacLean, Joanne Nash, and Paul Thomas Stephen Bryan Patterson, minor, by his litigation guardian Joanne Nash
Applicant
- and –
Toronto District School Board
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: September 17, 2021
[^1]: Education Act, RSO 1990, c. E.2, s.32(1); Bonnah (Litigation Guardian of) v. Ottawa-Carlton District School Board, 2002 CarswellOnt 1212, para. 14 (Ont. SCJ), appeal dismissed as moot: (2003), 2003 19087 (ON CA), 64 OR (3d) 454 (CA).
[^2]: Jackson v. Toronto Catholic School Board, 2006 23951, para. 68 (Div. Ct.). See also Titcher (Guardian of) v. Toronto District School Board, 2002 21546, paras. 41-42 and the cases cited therein (Ont. SCJ).
[^3]: Vanderkloet v. Leeds & Grenville (United Counties) Board of Education, (1985), 1985 1976 (ON CA), 51 OR (2d) 577, paras. 19, 27-8, 30 (CA), leave to appeal refused 54 OR (2d) 352n (SCC); DeLarue v. Kawartha Pine Ridge District School Board, 2012 ONSC 3349, para. 120; Stockley v. Avalon East School Board, 2000 CarswellNfld 224, paras. 39-40 (Nfld SC).
[^4]: Board’s Factum, para. 3.