Court File and Parties

CITATION: Henry and Dey v. Toronto District School Board, 2023 ONSC 3963

DIVISIONAL COURT FILE NO.: 247/23

DATE: 20230719

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Yukimi Henry and Claudia Dey et al, Applicants

AND: Toronto District School Board, Respondent

BEFORE: D.L. Corbett, O’Brien and Leiper JJ.

COUNSEL: S. Siddiqi and S. Byers, for the Applicants

J. Saville and K. Chakraborty, for the Respondent

HEARD: July 11, 2023

Endorsement

BY THE COURT

[1] The applicants are students and their parents who applied to participate in an admissions lottery for Elementary Alternative Schools in the Toronto District School Board (TDSB). Because of an error in the lottery process, they brought an application against the TDSB, alleging a breach of procedural fairness and a violation of the students’ rights under the Charter and Human Rights Code. However, prior to the hearing date and as described further below, the applicants abandoned the application. They attended before this court therefore only to seek their costs of the application.

[2] Elementary Alternative Schools provide a small and non-traditional learning environment. Each school has a unique focus, such as an enriched academic curriculum, arts programming, or social justice programing. The applicants submitted that the TDSB’s lottery admission process for the 2023/24 school year excluded equity-deserving students (Black, racialized, disabled and 2SLGBTQIA students) from the third step of the lottery process, which meant they were excluded from 75% of available school spaces.

[3] The TDSB admitted to an error in the third stage of the admissions process. The error, which the TDSB says was caused by a problem with its digital enrollment tool, resulted in students from equity-deserving groups mistakenly being excluded from the lottery for the 75% of seats that were remaining at that point in the process.[^1]

[4] The TDSB took steps to rectify the error, but the applicants were dissatisfied with those steps, at least to the extent they were able to understand them based on the TDSB’s public communications. The applicants understood the TDSB’s rectification decision to allocate 98 spaces that had not been filled through the lottery process to equity-deserving students. The TDSB also stated it would create an additional 34 spaces. The applicants were not satisfied with the 98 spaces being offered. They understood them to be spaces that had been unfilled through the lottery process because they were in schools that no students applying to the lottery process had requested. The applicants therefore described these as “leftover” spaces in less desirable schools.

[5] Prior to the scheduled hearing, the applicants abandoned their application. They ultimately were satisfied with the TDSB’s steps to rectify the error once they understood that the TDSB was creating new spaces in desirable schools for the equity-deserving students and not offering them leftover spaces. However, they submit that the true nature of the rectification decision only became clear on careful review of TDSB’s material responding to the application and further discussion with TDSB counsel. This meant that they were required to incur significant legal costs before they received enough information to be satisfied with TDSB’s remedy. The applicants therefore attended before this court seeking their legal costs.

[6] TDSB denies the applicants are entitled to any costs and instead claims its own costs for the time spent on the abandoned application. It submits that it communicated detailed information to the applicants and other members of the public in April 2023. The communications included FAQs and a link to a web page that provided information about the admissions process and the remedy it was implementing. In its submission, given the detailed information provided, it was unreasonable for the applicants to pursue the application.

[7] In our view, the applicants are entitled to costs from the TDSB. Where a public authority takes steps that obviate the need for a court challenge because the applicants achieved the results they sought, the applicants may be entitled to their costs: Broomer v. Ontario, 2004 27253 (ON SCDC), at para. 11. While we do not express any view on the merits of the application, the TDSB’ rectification steps ultimately satisfied the applicants’ concerns. However, the TDSB did not clearly communicate its solution to the public and applicants prior to the filing of its responding material. The TDSB’s communications, FAQs and web page did not directly state the TDSB was creating new spaces. While they provided details of the total spaces that would be available to equity-deserving students and the resulting proportion of spaces they would therefore fill, the information never clarified in which schools the spaces would be made available. It was not clear that the equity-deserving students would have access to the desirable schools that were otherwise full.

[8] The TDSB also never directly contacted counsel for the applicants to ensure they understood that their remedy did not involve allocating the “leftover” seats, as the applicants had alleged in their material. The applicants were therefore reasonable in pursuing the application until the receipt and review of the TDSB’s material on the application.

[9] The applicants seek costs on a substantial indemnity basis of $31,394.19 or on a partial indemnity basis of $25,137. Their actual costs were over $35,000. In our view, costs of $20,000 all-inclusive are appropriate. This quantum takes into account that the TDSB committed an error in its process. The applicants were required to expend significant costs before the TDSB clearly communicated the important details of its rectification decision to them. The quantum also reflects the importance of the issues, which related to the rights of equity-deserving students in the context of access to important public services. Therefore, the TDSB shall pay costs to the applicants of $20,000 within 30 days.

O’Brien J.

Leiper J.

Released: July 19, 2023

[^1]: At the first stage, the TDSB prioritized First Nations, Métis and Inuit applicants, as well as siblings of students already in a school. At the second stage, students who identified as belonging to other equity-deserving groups were prioritized for 25% of the spaces.