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CITATION: Shirl DcLarue v. Kawartha Pine Ridge District-8chool Board, 2012 ONSC 3349
DIVISIONAL COURT FILE NO.: 214112
DATE: 2012-10-09
ONTARIO
SUPERIOR COURT OF .roS'l'ICE
DIVISIONAL COURT
Jennings, Polowm, Wilton-Siegel J.J.
BETWEEN:
SHIRL DELARUE, rvnCHAEL
SAUNDERS, CATHERlNE DIBBEN,
NANCY CHESHER, JAY AMER, PETER
ADAMS, WAYNE BONNER, ERICA
CHERNEY, JOANNE BROWN AND
BILL TEMPLEMAN OPERATING AS
PETERBOROUGH NEEDS PCVS
)
)
)
) Aaron Rubinoffand Karen Page, for the
) Applicants
)
)
)
)
)
Applicants )
-and-
)
)
) Michael Hines and Erin Miller, tor the
KA W ARTHA PINE RIDGE DISTRICT) Respondent
SCHOOL BOARD )
THE COURT:
)
)
Respondent ~
)
)
)
) HEARD: June 6. and 7, 2012
REASONS FOR DECISION
[1] In order to aCCQIDIDodate counsel. who requested ~ t our decision be produced quickly
because of the rapidly approaching beginning of the school year, We released an endorsement on
June 18, 2012 dismissing this application for reasons to be delivered. These are those reasons.
[2] On this application, the applicants seek an order in the nature of certiorari setting aside
the decision dated September 29,2011 of the Board of Trustees (the "Trustees'') of the Kawartha
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Pine Ridge School Board (the "Board") regarding the future use of Peterborough Collegiate and
Vocational School effective September 2012. The applicants allege two general grounds for
their application: (1) that the Board breached its duties of procedural faimess and natural justice;
and (2) that the decision of the Trustees was made without statutory authority.
Backgronn4
[3] Peterborough Collegiate and Vocational School ("PCVS") was founded in 1827 and is
the third oldest high, school in the province. The present building opened in 1908 and is located
in downtown Peterborough.
[4] Beginning in 2007,. the -Board embarked on a plan to monitor secondary school
eIlrolment. On December 16,2010, the Trustees approved a pupil accommodation review (the
"ARC") for foul' City of Peterborough schools, being Adam Scott Collegiate and Vocational
Institute ("Adam Scott"); Kenner Collegiate and Vocationhl Institute (,'Kenner"), Thomas A.
Stewart Secondary School ("TASSS") and PCVS. Creation of the ARC had been recommended
by the administrative staff of the Board (the in a report to the Trustees dated
December 16, 2010 (the "December 16 Administration Report").
[5] Pursuant to paragraph 171(1)7 of the Education Act; R.S.O. 1990, c. B-2 (the "Act"), a
school board may schools in accordance with policies established by the board from
guidelines issued by, the Minister':.
[6] The Ministry of Education of the Government of Ontario (the "MOE") has established a
guideline referred to as the "Pupil Accommodation Review Guideline" for the
contemplated by paragraph 171(1)7 of the Act. The applicable version of this guideline for
purposes of this application is dated June 2009 ana is herein referred to as the "MOE Guidelme".
[7] TIle Board has adopted a policy, . being Policy BA-l.2, Pupil Accommodation Review
School Closure/Consolidation (the Policy"), to address school closures as contemplated
by the MOE Guideline. . .
[8] The minutes of the December 16, 20 10 meeting of the Trustees reflect that the Trustees
identified the four schools for the ARC for consideration of possible school closure:
That, in accordance with Board Policy No. BA-l.2. Pupil Accommodation
Review: School Closure/Consoli4ation, which relates to pupil accommodation
reviews, Adam. Scott Collegiate Vocational Institute and Intennediate School,
Kenner Collegiate Vocational Institute and Intermediate School, Peterborough
Collegiate and Vocational School, and Thomas A. Stewart Secondary School, be
identified for a group review and possible closure(s).
[9] The discussion at the meeting of the Trustees indicated that the four schools had been
identified based on the reference criteria of underutilization and program viability caused by
declining enrohnent..
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[10] The ARC was cO:Q1posed of 34 members and was chaired by'Don Blair, Superintendant
on Special Assignment ("Blair"), who was appointed by and reported to the Board's Director of
Education, Rusty Hick ("Hick
ll
). Each of the four schools involved sent seven representatives.
One representative was selected by each of the business community, commllllity agencies and
City Council. .
[11] Prior to the first meeting of the ARC, its members received a package. of materials that
included the Board Policy, the December 16 Administration Report, data collection reports
containing statistical data in respect of the four schools under review, a template for a school
information profile (a "SIP") and a critical path forthe ARC. .
[12] No specific terms of reference were created tor the ARC. The Board says that this was
consistent with section 2 of the Board Policy. A covering letter concerning. the first ARC
meeting descn'bed the role of the ARC members and the mandate of the ARC as follows:
Your role is to actively and positively express the idcas of the group which you
represent while maintaining a focus on the IBoard] goal of providing educational
programs and services of the highest quality, in facilities conducive to a
stimulating learning environment and designed to xneet the needs of all pupils.
within fiscal
The mandate. of the ARC is to consider the Board Report (Attachment A) and its
five Appendices (Attachments B to F) and use that rofonnation to begin weighing
the value of each school as in the School Infonnation Proflle
(Attachment G). Additionally, parents; students and other stakeholders will be
encouraged to present their points of view to the ARC at each of the four
meetings (Appendices H and I). The ARC may also request reports from [the
Board] (e.g. Finance, Planning) to assist in its deliberations. Ultimately, it is
hoped that the recommendations will be achieved through consensus.
[13] The ARC met once at each of the identified schools on February 3, February 28, April 7
and May 12. 2011. At each meeting, members of the public attended and made presentations to
the ARC. In total. 57 presentations were made across the four meetin,.gs.
[14] At'the third meeting, held on April 7, 2011, the Administration presentedfivediffel'ent
options in written fonn for consideration by the ARC. Essentially, each of these options
involved the closure 'of one of the four schools under review. with the fifth option being a "status
quo" option. At the same nieeting, detailed presentations regarding the characteristics of each
school, and the SIPls for each school which had been completed by representatives of the four
schools aftet prcviolls ARC meetings, were made by each school principal. These presentations
also addressed orally. any changes that would be required to existing facilities at their respective
schools if the various options were implemented, as this information was not addressed in the
Administration presentation to the ARC members.
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(IS] At the last meeting on May 12, 2011, the following recommendations were approved by a
majority ofthe ARC memberS! '
1. that the fOlII," secondary schools in the City of Peterborough be consolidated
into three secondary schools.
2. that a closure of a secondary school be the last resort in order to address
programming issues.
3. that, if a school were to close and be sold, the monies from the sale would be
distributed proportionately based on enrolments among the three schools.
4. that the Board review its policies and procedures which govern the
organizational structure and proceeds [sic] of Accommodation Review
Committees.
[16] Apart from these recommendations, the ARC did not prepare an Accommodation Report
nor d.id it present its recommendations at a public meeting to receive public input prior to
appl'Ov:ing the recommendations.
[17] Five members of the ARC subsequently prepared a minority report dated May 18, 2011
(the "Minority Report") stating that the members did not believe that any recommendation could
be made to the Board at that time. The full Minority Report stated as follows:
W e ~ the undersigned, as members of the committee of the City of Peterborough
Secondary Schools Group Accommodation Review, wish to dissent from the
ARC report and the recommendatioJJs made. The ARC committee was in no way
provided. with. the proper framework nor the time to discuss the issues raised
during the meetings, despite requests from committee memben; to extend the final
meeting. Information was gathered throughout the process without any chance
for analysis. debate 0r thoughtful review. Furthennore, the conunittee was not
p:rovided with proper evidence of the values of the schools and properties under
review, nor did it receive' up to date information on the condition of the facilities,
despite repeated requests. Under these circumstances no recommendations can be
made in good conscience to the Board at this time.
[18J The recommendations of the ARC majority were reported to the Board at its meeting on
May 26,2011.
'(19] On June 23, 2011, the Administration provided the Board with a report (the ""June 23
Administration Report") setting out the following recommendations for Board consideration:
12. Board administration considers the following the most preferred COUJ:Se of
action:
12.1 The Closure of [ T A S S S ] ~ as detailed within Scenario D. effective'
September 12, 2012. '
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12.3 The re-purposing, contingent upon feasibility, of the TASSS site.to
house out Board's Education Centre, as well as be the home for a .
specialized school learning env.ironment for elementary and
secondary students.
This specialized school will be focused on intensive
science/technology and environmental science programming for
students from our jurisdiction. The school will also allow
f'Or experimenta11eaming opportunities for Grade 7 and 8 stUdents,
as well as a combined staff and student leadership centre.
i2.4 The disposal of the Board's property at 1994 Fisher Drive.
Peterborough, . Ontario. Further enhancements to existing
Peterborough secondary school facilities will be explored.
13. Alternative courses of action:
13.1 Closure of PCVS, with dispersal of students as detailed in scenario
within Section 9.
13.2 Retention of PCVS site for use in providing alternative student
programming.
14. Least preferred course of action:
14.1 Closure of Adam Scott or Kenner.
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[20] The June 23 Administration Report stated tha.t the recommendations set out in that Report
would be followed by a 60-day period that wa.s, under the Board Policy, designed to secure
further public input. The Report also stated that the Administration would provide an interim
Report at the August 25, 2011 meeting of the Trustees and would propose its final
recommendationS at the. September 29,2011 meeting of the Trustees.
[21] At the next meeting of Trustees on August 25.2011, the Trustees heard from 19 members
of the public concerning the ARC, including the applicant Michael Saunders and Andrew Pyle
who both spoke on behalf of the PCVS School Council. The Director advised the Trm>tees that
the Administration had engaged ZAS Architects Inc. ("ZAS") to assist them in assessing the
feasibility of the recommendations to the TASSS facility set out in the June 23
Administration Report. The Director indicated that a draft report was anticipated by August 31,
2011 and the final report was expected on September 16, 2011.
[22] The report from ZAS was received on September 15,2011 (the "ZAS Report") and was.
made available tQ the public. The ZAS Report estimated the cost of re-purposing the TASSS
facility as contemplated in the June 23 Administration Report would be substantial, approaching
$20 million. An accompanying press release of the Board advised that the cost of re-purposing
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the T ASSS facility would. be "at a minimum" $10 million, which cost envisaged a more modest
project In the press release, Mr. Hick was quotedas saying "in the light of these potential costs
.... Board administration can no longer support the viability of the relocation of the board office
to the [TASSS] school site". .
[23] On September 26, 2011, the Administration released a new staff report (the "September
26 Adntinistrittion Report"). In this Report, the Board noted:
'On Septem.ber 16, 2011, the feasibility study on the possible move of the
Education Centre to the Thomas A. Stewart Secondary School site was received
by administration and released publicly. As a result of this study, administration
no longer deems it to be financially feasible to relocate the Education Centre.
[24 J The Report went on to give the following revised reconunendations to the Board:
1. That existing programming at Peterborough Collegiate and Vocational School
be consolidated into Adam Scott Vocational Institute, Crestwood
Secondary School, Kenner Collegiate Vocational Institute and Thomas A.
Stewart Secondary School, effective September 2012.
2. That administration consider locating alternative services and programming
including the Peterborough Centre for Individual Studies, at Peterborough
Collegiate and Vocational School as outlined in the administrative report of
June 23,2011, for decision at a later date.
3. That in accordance with Board Policy No. Pupil Accommodation
Review: School Closure/Consolidation, a transition implementation
committee be struck for the City of Peterborough secondary schools.
4. That the City of Peterborough Secondary Schools - Group Pupil
Accommodation Review report, dated September 29, 2011, be received fo1."
action and information.
[25] In this Report, the option of closure ofPCVS was more fully described as follows:
This option includes the following implementation aspects:
L The Integrated Arts program. moving to Thomas A. Stewart Secondary
School;
2. All senior students to be given the option of moving with their fellow students
to Thomas A. Stewart Secondary School for the remainder of their high
school years, and be provided transportation as per Board policy;
3. Junior students (currently in Grades 9 and 10; other than Integrated Arts
program students) being relocated to either Adam Scott Collegiate Vocational
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Institute (tbr those in the Highland Heights Public School and Queen Mary
Public School catchment areas), Kenner Collegiate Vocational Institute (for
those located in the Prince of Wales Public School catclunent' area), or
Crestwood Secondary School (tor those living in the Westmount catchment
area).
4. Students mll of course continue to be able to attend French Immersion at
Adam Scott Collcgiate V ocational Institute and the International
Baccalaureate at Kenner Collegiate Vocational Institute regardless of home
location. In addition,'all students may apply for out-ot::boimdary status on an
individual basis.
5. There are several key considern.tions identified as part of this option, including
the following:
project enrolment;
size of the site;
non-composite facility;
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distribution of students would benefit enrolment at each of the other
.schools
strong location for alternative usage
,[26] The Trustees met on September 29; 2011. They heard from 33 delegations, of which 21
supported retention of PCVS in its., current role. At 1:45 a.m. on September 30, 2011, the
Trustees voted to accept the Administration's recommendation in accordance with the following
resolution (the
That existing programming at Peterborough Collegiate and Vocational School be
consolidated into Adam Scott Collegiate Vocational Institute, Crestwood
Secondary School. Kenner Collegiate Vocational Institute; and ThOIllas' A.
Stewart Secondary School. effective September 2012.
[27] By a subsequent resolution, the Board has resolved to consolidate a numb<;,.'t of targeted
programs currently offered in a variety of different sites in the pevs building. The principal
program to be transferred to the PCVS site is the Board's Altcmative Education Program that
assists marginalized students from a variety of backgrounds who have difficulty maintaining
regular attendance in the traditional model of secondary education. PCVS Will also house the
Board's Continuing Education Program, its Literacy and Base Skills Program, its School for
Young MOII1S and its Correspondence Program.
[28] The eyidence is that PCVS currently has approximately 720 students and 80 staff. It
anticipates that the number of persons involved on a daily basis at the PCVS building after the
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consolidation of these programs in PCVS will comprise approximately 400 staff and students
who will attend on a daily basis and 200 to 250 students who will access the school irregularly.
Approximately 30 Board teachers and support staff will be regularly employed, directly, or
indirectly, in delivering'these programs.
[29] Subsequent to the Decision. the applicants submitted a request to the MOE on October
27,2011 for an administrative review of the Decision.
(30] On January 3, 2012, the MOE appointed a facilitator (the Facilitator") to conduct the
administrative review of the ARC process. The letter confirming the Facilitator's appointment
stated that it was "not a mandate of the :Minist1y or facilitator' torcvicw or change the final
decision of a school board". The applicants do not suggest that they misunderstood the limits of
the Facilitatorls authority when the request was made for an administrative review.
[31] The Facilitator's report Was released on March 23,2012 (the "Facilitator's Report"). The
Facilitator's Report analyzed eleven issues raised in respect of the ARC process. The Facilitator
concluded that the Board tollowed its own policy with two technical violations that she
considered did not have an impact on the Trustees' decision-making. The FaciUtator did,
however, state that, in her opinion, the Board 'Policy required revision "to be a more effective
tool in malting difiicult school closure decisions which meaningfully involve the community and
retlect the' spirit of the Ministry's Pupil Accommodation Review Guideline".
[32] This application was filed on April 17, 2012. An uncontradicted affidavit of Catherine
Foy the Superintendant of Education: Student Achievement (West Region) of the
B'oard, ac;l.dressed the steps that have been taken by students, teachers and the Board to
implem.ent the Decision for the 2012- 2013 year. The affiant states that a reversal of the
Decision would have substantial consequences that would be complicated and very difficult to
address in the summer months.
Applicable Standard - An Ove'fVicw
[33] As the Divisional Court stated in Ross v. Avon Maitland District School Board, [2000]
OJ. No. 5680 (Div. Ct.) ("Ross #2''), this Court does not second guess the finaricial and political
decisions of elected officials who act within their legal jurisdiction, The merits of the decision to
close, PCVS is beyond the reach of this Court. Our mandate is limited to inquiring whether there
was a school closing and, if so. whether the school closing is 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.
[34] In Bezaire (Litigation Guardian oj) v. Windsor Roman Catholic Separate School Board
(1992). 9 O.R. (3d) 737 (Div. Ct.) e'Bezaire',), the Court stated that the right of meaningful
participation by persons and groups affected by a school closure must be jealously guarded.
While the consultation and the decision-making process need not be perfect, it must be basically
fair. As noted in Ross #2, however, the applicants have a heavy burden to establish not only that
there was a procedural defect but also that any defect was so fundamental that it aflects the very.
basis of the Decision.
.,\.
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Procedural Fairness
[35] In this case, the applicants say they have been denied procedural fairness in tht': form of a
meaningful opportunity to participate in the accommodation review process for three principal
reasons:
1. the Board failed to provide adequate notice of the change in the
Administration's position and the grounds for the revised recommendati.on
and the Decision;
2. the Board failed to provide the ARC with' sufficient time, mandate or
, information; and
3. the Board's conduct irretrievably compromised the appearance offaimess.
[36] The applicants argue that alone,. or in combination, these actions constitute a breach of
the duty of fairness and natural justice that is so that it affects the validity of the
Decision.
Lack of Notice
[37] The applicants say that the June 23 Administration Report recommended thc closure of
T ASSS. It is their position that the closing of TASSS as a high school" as set out in that Report,
was not contingent upon the feasibility study. Rather, it was only the re-pl,.u:posing oftheTASSS
site that was contingent upon the 'feasibility study. The press release which was issued on
September 16, 2011, after the ZAS Report was released, made no indication that the
Administration planned to revise its JlUle 23!d recommendation calling for the closure of TASSS.
Op. September 26, 2011 at 3:00 p.m., only tltree days before the meeting of the Trustees
scheduled for September 29, 2011, the Administration released a new report to the Trustees
containing a revised recommendation which recommended the closing of PCVS rather than the
closing of TASSS. According to the applicants, PCVS supporters were blindsided by the
September 26 Administration Report. The applicants say that the last nrinute reversal of the
recommenciatiQn in the June 23 Administration Repor:t on September 26, 2011, without
explanation or warning, precluded any meaningful participation by the community. The
applicants say that they were genuinely surprised by the September 26 Administration Report.
[38] The applicants say that the Director did not reveal until after the delegations had been
heard that the reason for the change in the Administration's reco:rnrnendation in the Sc-ptember
26 Administration Report was its desire to retain the TASSS site, which'was described as a "very
valuable asset". While the recommendation in the June 23 Administration Report was based on
thc stated criteria of underutilization and program viability, the recommendation in the
September 26 Administration Report was based on the following considerations:
(1) a determination that the TASSS site was too valuable to give up;
(2) the cost of moving and constructing the Board;s administrative offices at the
TAsss site,was prohibitive; and
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(3) closing T ASSS as a secondary school was not an option.
[39] The applicants say that, while the September 26 Administration Report set out a
reconunendation to close PCVS. the rationale for that recommendation was not made until
after all public debate had ended on September 29. 2011.
[40] . The applicants say that they were deprived of the opportunity for meaningfUl
participation in the decision-making process by the timing of the reconn:nendation in the
September 26 Administration Report without disclosure of the Board' s hidden desire to keep the
TASSS site as a Board asset. They say that the Administration decision not to recommend "any
option that would involve or require the sale of the T ASSS site should have been set out in the
June 23 Administration Report. Therefore, they say they did not know the case they had to meet
until it was too late to respond in a meaningful manner.
[41] The applicants say that they and the community were foreclosed from making any sort of
compelling or relevant cOlUlter-arguments to the considerations driving the recommendation in
the September 26 Administration Report and the Board's ultimate decision. For instance, there
was no opportunity to challenge the underlying notion that the TASSS site was so valuable it
could not be as a Board asset, or to argue that the fact and cost of re-purposing TASS S as the
new home for the Board's administrative offices should not have had any role to play in the
accommodation review process.
The Failure to Provide the ARC with Sufficient Time, Mandate 0 .. Information
[ 42J The applic3Ilts say that pursuant to the MOE Guideline a decision on the future of a
school must be made with the full involvement of an informed local community. Further, the
review of a school or schools is to be led by an ARC which assumes an advisory role and which
provides recommendations' that will infonn the (mal decision made by the Trustees. Real
community consultation is a condition precedent to a valid school closure decision.
[43] The applicants say that the right to be heard and to playa meaningful part in the decision-
making process is illusory uoless it includes the right to explore and develop reasonable
alternatives. the right to reasonable disclosure of infonnation and documentation necessary to
fully develop and present a position, and the right to be. granted sufficient time to do. so. The
applicants say that the Board failed to provide the ARC with adequate time, mandate, or
infonnation, and therefore, r.eal. and meaningful coromunity consultation was not .achieved. This
mnounted to a breach. of procedural fairness.
[44] The applicants set out the following concerns:
(a) A request for additional time by members of the ARC to discuss and review the
information that had"been gathered in the four public ARC meetings was denied.
(b) The Board did not provide the ARC with specific terms of reference as il;l required
by the MOE Guideline.
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(c) The Board did not provide the ARC with infonnatiofl concerning potential
partnership opportunities at the outset of the process pursuant to the tenus of the
MOE Guideline.
(d) The Administration did not provide the ARC with completed SIPs for the four
schools involved as required by the MOE Guideline.
(e) The Administration selectively responded. to the requests for' further information
made by members of the ARC arising from the data provided to them. The Board
chose not to provide the 2010 School Facilities Overview.
(f) The ARC never received any infonnation that would enable it to consider
composite school issue's, such as the demand for technical edl.ication in
Peterborough at the secondary school1cvel.
The Appearance of Fairness was Compromised
[45] The applicants say that, in the context of an issue as fundamentally important as school
closures, the right of the stakeholders to fairness is crucial and mllst be jealously guardcd. This
includes not only the obligation to comply with the' rules of natural justice and procedural
fairness, but also the obligation to do so in a manner tha.t does not compromise the appearance of
fairness.
[46] The applicants say that the Board's actions, taken separately' or as a whole, taint the
Decision with the appearance of unfalmess and ought to be set aside. These action.q include but
are nQt limited to:' ,
(a) The naITowing of the scope of the accommodation review at the June 19, 2008
meeting of Trustees, from all Peterborough County and City secondary schools to
only Peterborough City schools. The fact and rationale for this change was not
reflected in the minutes of this meeting.
(b) The Administration's purposeful withholding of the 2010 School Facilities
Overview notwithstanding a request from the ARC for samc.
(c) The threat of disciplinary action against employees of thc Board (which would
include ten members of the ARC) tor any comment that might reflect negatively
upon the policies and procedures of the Board.
(d) The improper interference and direction provided by Hick to Blair during the
ARC process. The applicants say that at the instance of Hick, Blair ruled that a
motion made at the fourth and:final meeting to recess to May 17, 2011 to continue
deliberations was "out of order".
( e) The presentation of the Me recommendations to the Trustees in a manner
inconsistent with the recommendations as voted upon by the ARC and without
any opportunity for public input. The ARC did not prepare an accommodation
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report as contemplated by the MOE Guideline, nor did it present a report at the
final ARC meeting or any other public meeting. Further, approximately onethird
of the ARC members either opposed or abstained from voting on the
recommendation. Five members, including all threc independent members,
signed the Minority Report. This information was not disclosed to the Trustees in
the June 23 Administration Report.
(t) The Administration informed the public of its revised recommendation (to close
pevs rather than T ASSS) only three days before the vote on the recommendation
in the September 26 Administration Report.
(g) The Administration revealed its rationale for the revised recommendation, which
recommendation was acted upon by the Trustees resulting in the Decision, only
after 11 :00 p.m. on September 21, 2011 after all opportunity for public"debate had
ended.
The Caselaw
[47] The Divisional Court has dealt with the issue of procedural fairness in the context of
school closures in many cases.
[48] In Bezaire, the school board decided to close nine schools on the basis of
recommendations from a consultant's report. Parents were not given an opportunity to present
their views before the final decision was and it was not until after the decision was
finalized that parents were heard by the board. Parents of two of the nine schools brought an
application fot" review. The court granted the application and the decision to close the
two schools was declared null. and void. It found a complete disregard of the consultative
process which the MOE guidelines required.
[49] The court found that the existence of the duty to act fairly arose out of the minlsterial
policy to which the board was made subject by the Education Act. The court stated the following
with respect to the MOE guidelines at pages 749 and 750: .
We agree with the respondent that the guidelines are not analogous to legislative
enactments. We cite with approval the following passage from Fisher Park
Residents Assn. Inc. v. Ottawa (Board of Education) (1986), 57 O.R. (2d) 468, 33
D.L.R. (4th) 411 (H.C.). where Eberle J., having drawn a distinction between
regulations and "guidelines
lt
or "policies". says at p. 477 O.R., p. 420 D.L.R.:
The guidelines as they existed then and as continued call fo1." a
policy on procedures. I think it is reasonable to infer therefore that
the underlying aim of the Legislaturewas to ens'Ute that the closure
decision was taken according to certain 'Procedural norms,
allowing for reasonable time for an adequate input from the
electorate. These matters were to be dealt with by ea.ch board in
accordance with its own views of what was appropriate for it and
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. its constituents. Accordingly, it appears to me that the policy
developed by an individual board is not to be regarded nor
scrutinized in the same way as a legislative enactment would be.
Although we have concll..1ded that the m:e not elevated to the realm of
legislative enactment or regulation, we 'wish to distance ourselves from the
. respondent's contention that the board is under no obligation to follow the
guidelines. It would ruIl conttary to the foregoing passage from Fisher Park, to
suggest that the board is free to simply disregard the "procedural norms"
established by the legislature by way of the. Ministry's guidelines.
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[50] The court found that the guidelines imp()sed on school boards an- obligation to engage in
real community consultation as part of the process of deciding whether to close a school. It
concluded that that obligation had not been met. The court stated the following at pages 752
754:
Unlike the decision taken by the board in Vanderkloet regarding the allocation of
students whieh was held not to attract the doctrine of fairness. the guidelines.
although they are ambiguous and lack the force of subordinate legislation,
in the applicability of the doctrine of fairness that was enunciated in Nicholson
and'rejected in the circumstances of Vanderkloet. Ambiguous though. they the
guidelines read as a whole are clearly premised on the principle that the closing of
a school is fue business of the community and .the community, one way Or
another, must be consulted. The requirements of publicity. public sessions, and
the impo'ctance of factors such as the social, cul1."l.Ira.l and recreational impact of a
closure on the community. make it clear that real community consultation is a
condition precedent to a valid decision.
When the board realized the W'gency of its financial cnSlS, it did what all
govemments or emanations thereof commonly do .- it called in an expert and
commissioned a study. When it received its consultant's report, it purported to use
that report as a replacement of the board's prior closing policy. The new policy for
school closing was immediately adopted and the staff instructed to apply the new
criteria to the 42. schools. As a result of what the staff conCluded from the exercise
of applying a points system to the various schools, the board made its decision to
close nine schools, inc1udmg St. Patrick and st. Wilfud.
Subsequently,. members of the community were given a pro fonna
opportunity to present their views and alternatives. The decision having been
previously made, these were peremptOrily rej ected. When a process of this nature
is followed, it is understandable that thQse adversely affected will feel that their
views have been completely ignored and that they have been treated unfairly. The
perception, at least, is that the expression of the community values is entertained,
for the sole . purpose of meeting the minimum technical requirements of
procedural correctness required by the courts, without any meaningful
participation in the actUal decision- making.
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The board was under the obligation to make and follow policies which c:onformed
with the guidelines for' school closure policy. It is apparent that the Ministry
guidelines contemplate, at the very least, the provision of some mechanism for
input from. interested citizens prior to any decision being taken to close a school.
Counsel for the respondent submits that even if there is a finding of procedural
unfairness, the court ought to exercise its discretion to' allow the decision of the
board to stand. We are told that administrative arrangements to implement the
board's decision have been taken and that it would not be in the public interest to
have the decision quashed. We accept that the decision was taken in the face of a
severe fmancial crisis and that in so doing the board' was acting in good faiih.
However, the right of meaningful participation by persons and groups affected by
the de.cision must be jealously guarded.
P.015/038
[51] The closure of the only high school in Seaforth Ontario was dealt with ill court on three
separate occasions. On February 22. 2000, the Avon Maitland District School Board voted to
close the high school due to financial constraints. The board had passed a policy in 1998 that
deleted the requirement f-or the ,creation of a school accommodation review committee in the
event of a school clol:>"U1"c. A Seaforth accommodation review committee was constituted at a
November 23. 1999 board meeting but only after seven schools including Seaforth had been
recommended for closure. The committee was instructed to report to the board by February 3,
2000. Repeated requests for information were denied.
,[52] The matter came before Heeney J. in Ross v. Avon Maitland District School Board,
[2000] O.J. No. 1714 (5: Ct.) ("Ross #1"), which considered a motion for an interim order
prohibiting the school closure from proceeding ,pending judicial review. Heeney J. denied the
motion despite flnding a strong prima facie, case as the applicants had' not demonstrated
irreparable harm. However, he addressed the content of the duty ,of fairness that must be
satisfied in regatd to a decision to close a school. He stated the following at paragraphs 28-29:
28 It is well established that it is not open to the court to consider whether the
decision of the Board to close SDHS. was right or wrong, wise or foolish. The
central consideration is whether the Applicants were treated fairly or unfairly in
the decision":maJcing process: Fishel" Park Residents Association Inc. et' a1 v.
Ottawa Board of Education (1983),57 O.R. C2d) 468 (Ont. H.C.J.).
29 The duty of thli:ness includes the obligation to give those persons affected
by a decision such ,as this an opportunity to be heard. Public consultation is a
condition of a valid decision to dose a school: Bezaire et al v. Windsor Roman
Catholic Separate School Board (1992), 9 O.R (3d) 737 (Div. Ct.). A mere pro
forma opportunity to present their views will not suffice. Instead there must be
flmeaningful participation in the actual decision-maldng": Bezaire (supra) at p.
753.
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[53] Heeney J. stated that the right to be heard includes the right to the reasonable disclosure
of information and documentation. In this regard he referred to Elliot v. Burin School Board
District No.7 (1998), 13 Admin. L.R. (3d) 91 (Nfld. C.A.) .. He stated at paragraph 57:
57 In my view, the right to be heard includes the right to the reasonable
disclosure of information and documentation that will enable the affected party to
fully develop and present the viewpoint that he or she wishes to be heard. I adopt
the following passage from -the Newfoundland Court of Appeal's decision in
Elliott v. Burin School Board District No.7 (1998), 13 Admin. L.R. (3d) 91 (at
106):
The content of the duty must therefore be flexible to meet the
exigencies of the case. Although, as noted in Knight, this must be a
balance beiween fairness and efficiency, what must not be
compromised in any case is the necessity that the notice,
consultation and input elements, however structured, not be
perfunctory and formalistic. They must be meaningful and
realistic. designed to ensure that there is a real opportunity for
persons affected to take reasonable steps to try to influence the
decision. While that may not necessarily require full disclosure of
all background material and every scrap of relevant paper (in the
traditional natural justice sense of knowing the full case one has to
meet). sufficient of such information and material would generally
have to be made available, at least in summary form, so that the
persons affected will have a context in which to m*e their input,
so that their representations can be directed to the real issues tmder
active consideration by the board. This might be especially the
case where it would be important for those having input to know
.how, if at all; the particular proposed closure fits into any broader
scheme that is contemplated for reorganization or rationalization of
the system generally.
[54] Heeney J. noted that, in that case, the coriunittee was given little more than tvvo months to
organize themselves, do all the necessary analysis. obtain input from the public and report to the
board, with the holiday season intervening. Its requests for.an extension were ignored. Heeney J.
concluded at paragraph 61 as follows:
61 My conclusions on points 3, 4 and 5 can be summarized as follows. The
right to be' heard and to play a Itl.eaningful part in the decision-making process is
illusory unless it includes the right to explore and develop reasonable alternatives,
the right to reasonable disclosure of infonnation and documenta.tion necessary to
fully develop and present the position that the affected party wishes to be heard,
and the right to be granted sufficient time to accomplish the foregoing. The Board
breached its duty of faimessin all three respects.
[55] The matter next camc before the Divisional Court in Ross #2; supra. where the decision
to close the school was quashed. The court.referred to the statement in Bezaire, supra, that the
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right of meaningful participation by persons and groups affected. by the decision must be
jealously guarded. However, the court also stated that the, consultation and decision making
process need not be perfect so long as it was basically fair. The court stated that applicants have
a heavy burden to establish not only that there was some procedural defect but also that the
defect was so fundamental that it affects the very basis of a decision. The court concluded that
the board breached its duty of fairness and quoted with approval para. 61 of Ross #1 set out
above.
[56] Finally, in Huron East (Municipality) v. Avon Maitland District School Board, [2002]
0.1. No. 2697 (Div. Ct.), the Divisional Court again dealt with the closure of the high school in
Seaforth. On February 27, 2002, the board decided to close the Seaforth High School effective
September 1
j
2002. The applicants complained that the board unlawfully conducted an in
camera meeting where they likely discussed matters which materially advanced the decision to
close the high school, that the decision. had been predetermined, that the board's closure policy
did not conform to MOE guidelines, that the board denied important information to a trustee
opposed to the closing and that the board made a switch from its decision to renovate
the school and use it for younger students.
[57] Thc court held that neither severally norjointly did the applicants' concerns discharge the
heavy burden on them to show there was a procedural error so fundamental tha:t it the
very basis of the board's decision so as to it unfair. It held that while the in camera
meeting might have violated the Education Act, there was nothing in the minutes or otherwise
showing that the board, discussed anything of material relevance that was not already in the
public domain. With respect to the issue of whether the trustee was able to obtain .
the court noted that it appeared that he was demanding information on such a detailed scale that
his requests would have overwhelmed the capability of the board staff. The court stated that the
applicants had not demonstrated that they were prejudiced in presenting their position to the
boar.d by the trustee not receiving the infonnation he requested. '.
[58] Finally, with respect to the concern that the board school closing policy did not conform
to Ministry guidelines, the court noted that guidelines are just guidelines end do not mandate a
specific detailed procedure. The court stated that the failure to follow exactly the guidelines does
not affect the validity of the process followed where there has been a good faith effort made to
air the issues involved publicly and adequately.
[59J In Kerr 'Y. Lambton Kent District School Board (unreported decision of the Divisional
Court, June 15, 2000, Court file No. 324/2000), the applicants sought judicial review of a
decision oftha school board to close the W.T. Laing Elementary School in Wa11aceburg Ontario.
The Court set out the standard of review at paragraph 20:
20 The Board's decision to close a school is not adjudicative, but
administrative in nature, and as such should not be lightly interfered with by the
courts. We are all of the opinion that this court should not, interfere with the
School Board's decision unless it has acted unfairly in some material way, or
failed to ensure the applicants' right to procedural fairness and thcir right to be
heard. The applicants therefore have the burden of demonstrating some
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procedural defect in the Board's process so fundamental that is affects the very
basis of the Board's decision. .
P.018/038
[60] It was the position of the applicants that, instead of closing W.T. Laing, two smaller
elementary schools in Wallaceburg should have been closed. They complained that by failing to
respond to their request for a detailed analysis of potential cost-savings in each of the four
Wallaceburg schools, the board denied them the opportunity to make the altemat'ive case fOT
closure of the two smallest schools and denied them a reasonable opportunity to influence the
ultimate decision of the board.
[61] The court held that the applicants did put the case tor the closure of the two smaller
schools squarely before the board by way of written submissions and oral presentations. It
further found that in practical tenns the applicants had available to them a very considerable
quantity of infonnation respecting each of the four schools, including enrolment information,
maintenance costs ,and forecasts, utilities c o s t s ~ the numbers of teachers and salary infonnation.
The court stated at paragraph 26:
26 Although the content of the duty of faimess must be flexible and must
incorporate reasonable disclosure, it oUght not to be so broadly interpreted in
circumstances such as these to include production of every scrap of paper. In our
opinion, the Board's process allowed meaningful and realistic public input and a
real opportunity for the applicants to influence the Board's decision. Elliott v.
Burin School Board (1998) 13 Admin. L.R. 91 per Green J.A. at 106 (Nfld. C.A.).
[62] Morris v. Lambton Kent District' School Board is another unreported decision of the
Divisional Court (June 30, 2000, Court file No. 365/2000). This case involved the depision of
the board to close the East 1:arobton Secondary School. The applicants complained that the
community was misled by not being informed, in.a timely manner, ofllie central concern of the
board with respect to the inability of 'the school to deliver the requisite diversity of desirable
programs because of declining enrollment. The applicants claimed that, as this was a significant
reason for closing the school, they were therefore was not able to participate in a meaningful and
fair way in the consUltative process.
[63] The court held that while the issue of programming wa!3 not specifIcally flagged in the
report. on the material before. the court, the issue of the delivery of the requisite diversity of
desirable programmes by the school was apparent from the fall of 1998. Thc court stated at
paragraph 6:
\Vhile the authorities. mandate that the consultative process be meaningfully
realistic and fair, that process need not be perfect. On the basis of all the material
that has been placed before us, the heavy burden which counsel concedes rests on
the applicant, has not been met.
[64] Regier v. Windsor-Essex Roman Catholic District School Board (2001), 149 O.A.C. 113
(Div. Ct.), alSo. spoke to the issue of"petfection". In January 2001, the board appointed a School
Consolidation Committee that recommended the .closure of eight schools. Public hearings took
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place through to April 2001 and the board decided to close a number of schools in May 2001.
The applicants submitted that the procedures used to implement the closure decisions lacked
fairness. The court stated the following at paragraphs 22-27':
22 There have been exhaustive communications by the Board which in their
. totality are very complete. The issues to be addressed have been identified. There
was ample time and opportunity tor meaningful participation. It i ~ not our task to
detenniue that the process was perfect. Our task is to ascertain if the applicants
have shown a lack of procedural fairness.
23 Assuming that the Ministry guidelines require certain reports, assuming
also that the guidelines have other requirements, we fmd the many steps taken
involving communications and participation substantially and reasonably comply
with all guideline requirements and also with the Board!s closure policy. We
conclude the process used the guidelines and the policy of the Board and that no
new criteria were used.
24 We agree with the respondent's sununary that much ihtbrination was
available to each school before the voting on May 1, 2001. That summary is as
follows:
Before the various stakeholder meetings held before the Board in
April 2000, each school had in its possession! the September 2000
School Retention Profile, the November 28th and December 12th
Reports, the Administrative Recommendation of January 16,2001,
the Committee Report of March 20, 2001, Administrative
responses and newspapcr articles.
It is to be observed that 139 days elapsed between the December
12 identification of the 12 schools for consideration and the final
decision on May 1, 2001.
25 It is difficult to know what morc the Board could have done to ensure
procedural fairness.
26 To go beyond what it did would have amounted to engaging in an e n d l e ~ s
discussion with those. who disagreed with it and lead to the ultimate paralysis of
the decision m.alcing process.
27 Procedural fairness should be assessed not only with regard to ideal
standards, but also with regard to the reality of the special role of the elected
school Board and the. practical and exigent circumstances under which it operated.
[65] In Vecchiarelli (Litigation Guardian of) v. Toronto Catholic District School Board, 162
O.A.C. 128 the school board's decision to close ten schoots was quashed by the Divisional Court
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and the matter was remitted back to the board for furtb.er consideration. The case concerned the
"appearance" of fairness.
[66] The board met on December 13; 2001 to vote on the issue of school closures. During the
debates, the members of the public became quite vocal. during the evening, recesses were
called and many of the trustees and staff left the boardroom and went to a room away from
public. Further, during the evening the board moved from voting on a motion to close ten
schools, to a motion to deal with each school separately (having the result that eight would ,
remain open and two would close) to a motion to reconsider (having the result that all ten would
close). .'.
[67J The court concluded that the process followed by the board in the period preceding the
events of December 13, 2001 roet the criteria of procedural fairness and natural justice.
However, it held that observers of the events of December 13 could reasonably conclude that
some arrangement had been made while the trustees and staff were out of public view, and that
the heart of the decision-making had not taken place at a public meeting as required by the
Education Act. 1be Court held that the appearance of fairness was compromised, stating that it
is of fundamental importance that justice should not only be done, but manifestly be seen
to be done.
[68] A number of principles emerge from the foregoing case law. First, Ontario school boards
are not obliged to close schools in strict compliance with the MOE Guideline. Second, in
assessing compliance with the duty of fairness, it is the substance of what was done that is
crucial rather than the An applicant must more than that there were
procedural irregularities. Real and substantial prejudice must be show:u. Further, in assessing
the significance of procedural objections, regard must be had to the entire history
cirl;untstances of the case. In addition, the consultation and decision-making process need not be
perfect so long as it is basically fair. The applicant must show that the defcct(s) relied upon was
so fundamental that it affects the v.ery basis of the decision.
[69] However the right of meaningful participation by patents and persons in the community
affected by a school closure must be jealously guarded A mere pro forma opportunity to present .
their views will not suffice. Meaningful participation in the decision-making process includes
the right to explore and develop reasonablc alternatives, the right to reasonable disclosure of
information and documentation necessary to fully develop and present the position that the
affected party wishes to be heard, and the right to be granted suflicient time to accomplish the
above.
Determinations on the Issue of Procedural Fairness
1. Lack of Adequate Notice
[701 As set out above. the applicants submit that they were blindsided by the recommendation
in the September 26 Administration Report and that they were deprived of the opportunity for
meaningful participation in the decision-making process without disclosure of the Board' 5
hidden desire to keep TASSS as a Board asset For the reasons set out below. on a review of the
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totality of the' evidence, we find that the applicants were not blindsided by the September 26
Administration Report. There was no hidden ' agenda here that TASSS was too valuable an asset
to give up. The value of TASSS as an educational asset, a composite school "Vith 29 acres beside
the river, was well known to alL In the circumstances of this case the applicants had to have
been aware that the:ir school was at risk of closure from December 2010 through to September
29, 2011, a risk whi.ch in fact increased over time, unless a feasible option could be identified,
that permitted retention of the TASSS site. '
[71] The process began: with the December 16, 2010 meeting of the Trustees, where the
creation of the ARC waS raised and discussed. Hick spoke to the reality of declining enrolment
and to its impact on the Board's ability to provide high quality educational programs. Four
schools were identified for a group school accommodation review and possible closure(s)
including PCvs. We are satisfied, that, from the outset of the ARC,. the members of the ARC,
and the community at large, understood that the sole i.ssue before the ARC. was whether to
consolidate the educational programs then offered in tour, schools into three schools and, if so,
which school would cease to offer its existing programs.
[72] The majority of the ARC members recommended the consolidation of the four secop.dary
schools into three, with the closure of a school as a last resort. The June 23 Administration
Report, while it referred to the closure of T ASSS as part of the most preferred course of action,
sct out the closure of PCVS as an alternative course of action. The closure of Adam Scott and
Kenner was indicated as the least preferred course of action. PCVS's jeopardy had in fact
increased., from being one of four schools identified for possible closure to one of two schools
identified for possible closure. '
[73] It is the position of the applicants that the Administration was recommending the closure
of TASSS, irrespective of whether it was feasible to re-purpose the school. According to the
applicants, it was evident on the face of the recommendation that the closure ofTASSS was not
contingent on the feasibility of the move of the Board's Education Centre to the TASSS site. We
do not read the June 23 Administrative Report in such a limited manner.
[74] Paragraph 12 of this Report refers to the "following and most preferred course of action"
(in the singular). The recommendations at 12.1-12.4 are part of a package." These are not four
independent recoIIlmendations. Further, paragraph 12 must be read in the context of the
document as a whole. Paragraph 17 states as follows:
A re-purposing for the Thomas A. Stewart Secondary School site is based on the
following key considerations:
ability to the asset ,with the most valuable and
unique physical attributes for student use
the retention of the property would p:rovide capacity for ,futu:re
enrolment growth if realized
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the property would be retained to provide unique learning
opportunities for Board elementary students from across the
jurisdiction. as well as new and emerging community
partnerships
allows the Board to retain a school site while downsizing
capacity (with relocation and sale of existing Education Centre}
The vision for a re-purposed Thomas A. Stewart Secondary School site includes,
but Dot is limited to, the following:
extensive student use, both elementary and secondary. of
internal and .cxternal building assets, including auditorium,
technology facilities, athletic fields, greenhouse,
and others.
development of specialized student programming within the
science curriculum, maximizing use of the cxternal geography
of the school site (island/water access) to focus on
environmental science.
new and expanded community use partnerships of the building
facility, including gymnasiums, auditorium and athletic fields.
with exploration of enhancement to the athletic fields for
expanded joint use agreements.
emergent partnerships with Fleming College and Trent
University to facilitate model of the Future" in
connection with respective Early Childhood Education and
Teacher Education program.
relocation of Education Centre to school sites provides for
designated facility for staff professional development activities.
. relocation of Education Centre provides central staff increased
opportunity for more direct connection with students and
stakeholders.
opportunity for enrichmentlimmersive science or technology
programming activities for students froID across the Board.
P.022/038
[75] It is the uncontradicted evidence of Hick that there was no reason or need for the Board
to move its Education Centre to T ASSS: The only circumstances in which that move would
have been justifiable were the of a feasible re-purposing of TASSS.
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[76] The applicants point to the :minutes of the meeting of Trustees on June 23; 2011, where
Hick gave his report with respect to the ARC and the Administration recommendation to the
Trustees. At page 22 of the minutes at point 1, the closure of T ASSS is referenced.. However
point 1 is set out with points 1-4 as part of the preferred course of action. Moreover, this portion
of the minutes cannot be read in isolation. Earlier in the minutes at page 16 it is stated:
Director Hick confj,nned that each and every school is valucd by students, staff,
alumni, parents, and their community, with each school community having
passionate feelings and wanting to keep their school alive. It was stressed that
administration is obligated to provide trustees with the best information in order
to make sound decisions and not to be influenced by emotions, or pressure from
any sector or any school community.
The Director stated that administration is presenting for Board consideration, the
best option in difficult circumstances, as well as additional options. The concept
being presented endeavours to provide a positive solution that. will retain a
tremendous asset in Thomas A. Stewart Secondary School and continue to make
that asset available for stude.nt and community use.
Director Hick stated that P. Mangold, Superintendent of Student Achievement,
will speak to the details of the report.
[77] In" addition, the rationale for the preferred course of action to close TASSS (quoted
above) is set out at pages 23 and 24 of the, minutes. In our view. the Administration
recommendation to close T ASSS was contingent on the feasibility of its re-purposing.
[7S] As mentioned. the June 23 Adnllnistration Report stated that the, recommendations set out
in that Report would be followed by a 60-day period that was, under the Board Policy, designed
to secure further public input. This time period allowed the public the opportunity to change the
views of the Administration and to provide input into the decision of the Trustees.
[79] The accommodation process is a dynamic onc. It did not stop with the recor.nmendatio.ns
of the Administration. Moreover, the recommendations of the Administration were simply that
The decision-makers were the' Trostees and they were not bound by thesc recommendations.
The applicants had the opportunity from June 23, 2011 to put forward their case that PCVS
should not close. The evidence reveals that they did indeed do so.
[SO] The evidence reveals as well that the Trustees did not simply accept the recommendation
ofthe Administration. Much discussion ensued at the meeting of the Trustees on June 23, 201l.
One Trustee asked why the resale value of TASSS was being given consideration when the
Administration was speaking of re-purposing the school. Staff responded that the market value
assessment was included in case the Trustees agreed to close T ASSS but did not agree to
re-purposing the site. A Trustee asked i'f consideration had been given to developing
partnersbips if the PCVS site were to close. Most tellingly, one Trustee stated that in comparing
the two schools (TASSS and PCVS). "it is difficult to comprehend the recoxmnendation that is
being brought forth'. The Trustee asked if the Hiawatha First Nation had been consulted as this
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recommendation (to close TASSS) affects their students. The minutes reveal that the Trustees
were raising issues and consicienng different options.
[81] Hick spoke to the re-purposing ofTASSS at this meeting. He said that the driving factor
for the recommendation to move the Education Centre to T ASSS is that it would protect and
ensure that the asset is' there, for students for current and future use. He stated that the TASSS
property and the facilities are an "outstanding jewel". Later, in the minutes it is stated at page
27:
Some trustees spoke to the TASSS site as having everything that is important to
educating students. It was stated that the property makes it a wonderful site for
the location of a special science program .and an Integrated Arts Program
[82] On the totality of the evidence, the applicants had to have been aware, or should have
been aware, that, the Administration recommendation to close T ASSS was contingent on its re
ft
purposing, that TASSS was seen as an "outstanding jewel" that the AdminilSttation and the
Trustees did not want to lose, and that, accord:ingly, PCVS was still in jeopardy of being closed.
In short, retention, of the TASSS site as an educational asset was a clearly expressed
consideration of significance to the Administmtion. However, it would appear that, at this stage,
the Administration did not anticipate that re-purposing of the T ASSS site would not be
economically feasible. Accordingly, all the parties proceeded on the optimistic scenario that, by
re-purposing the T ASSS site, it would be possible to maintain the existing programs at PCVS
and to retain the TASSS site for future education purposes.
[83] The next meeting of was held on August 25, 2011. Two individuals, Michael
Saunders and Andrew Pyle, who spoke on behalf of the PCVS School Council, made a fulsome
presentation and provided a written submission in support of keeping PCVS open. Thcy noted
PCVS's enrollment sta.tistics and that it had the lowest yearly maintenance costs, the lowest
projected capital costs, the lowest busing costs, and the sm?J.lest potential resale value due to the
property size. They stated that the closure of T ASSS would have the greatest impact on reduc:ing
the total number of empty on-the-ground spaces iIi the Board's secondary schools. A downtown
business owner spoke in s:J.1.pport of as did several others including the School Council
a student and a parent of a student. They all spoke to the attributes of the school
and why PCVS should remain open. A number of other individuals also spoke in support of
TASSS.
[84] During the actual business portion of the meeting Hick gave an update report on the
ARC.' He made comments, set out at paragraph 2S of the minutes, that clearly in,dicate that the
closure of TASSS was premised on its re-purposing. At page 27 of the minutes he noted that if
PCVS were closed, Adam Scott and Kenner would become the closer school for many students
to attend. The following is stated at page 27 of the minutes:
Chairperson D. Lloyd stated that. the administration has presented trustees with a
proposal and other options. and that a secondary school needs to close. Trustees
will need to make a choice on September 29 but what happens to that school does
not need to be detenni.ned on September 29.
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A trustee spoke to being uncertain about choosing between TASSS, a jewel of a
site, and PCVS, a school located downtown with its own culture and Integrated .
Arts program.
P.025/038
[85] From the minutes of both meetings of the Trustees, it appears that among the Trustees
there was some opposition to fe-purposing TASSS. there was support for the view that TASSS
was the "jewel" of the Board's assets, and there was some support for the closing ofPCVS. The
supporters ofpCVS had to understand their school was injeopardy.
[86] The community certainly understood the jeopardy PCVS faced once the ZAS Report was
released, An article written in the Peterborough Examiner just after the Administration's
September 16, 2011 press release noted that the ZAS Report and the consequent decision of the
Administration not to re-purpose TASSS was a "game changer" and that both TASSS and PCVS
were on the block" .. Notably, the article also stated that the recommendation to close
TASSS came with a caveat - the plan to house the Board's administrative offices there and to
use it for eleme:ntary and high school students to study specialized courses in science, technology
and the environment.
[87] . From the 4atethey received the ARC Report to the conclusion of their meeting on
September 29,2011, the Trustees received a total of seventy delegations.from members of the
public regarding the issues in this case. TIllrty-two ofthesc were made by PCVS supporters and
twenty-one of those thirty-two were made at the September 29, 2011 mecting of the Trustees.
The supporters of PCVS had more than sufficient opportunity to put their case before the
Trustees with respect to this matter.
[88] The applicants claim to have been blindsided, in that they coUld not have reasonably
inferred from the Administration's various representations that the TASSS site was too valuable
to ever give up and that the recommendation to close T ASSS was contingent on the costs of
Ie-purposing it. The evidence set out above cannot support such claim. The discussions among
Trustees in public meetings, coupled with the entire course of events, demonstrate that PCVS
was always at risk of closure in order to preserve the TASSS site and that the PCVS community
always knew it. The opportunity for advocacy was always there and ww; acted upon. Further,
the supporters.of PCVS knew what they needed to know in order to advocate effectively. \\!hile
it is unfortunate that the ZAS Report was received only on September 16,2011, the supporters of
PCVS still had an adequate opportunity to respond to the changing situation and make its case.
The PCVS community was able to have full and meaningful input and participation in the
process and had a real opportunity to influence the decision taken by the Trustees. We note that,
on this Application, the applicants have not provided any evidence' that challenges the
conclusions in the ZAS Report or that proposes another viable alternative that pe:mlits retention
ofllie TASSS site together with the continuation ofpCVS. Procedural fairness does not require
the Trustees to engage in endless discussion with those who disagree with it.
2. . The Failure to Provide the ARC with Sufficient Time. Mandate or Infonnation
[89] The applicants have raised a number ofconceros about the ARC process in and of itself
but, in the. end the ARC process was not the source of any prejudice to thc applicants. The
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ARC did not recommend the closure of PCVS. In fact, it did not recoml,l1end the closure of any
particular school. It simply recommended that the four secondary schools in the City of
Peterborough be consolidated into three secondary schools. The rationality of this
recommendation has never been challenged by the applicants. However, for completeness we
tum to the concerns so raised.
[90] The applicants argued that the ARC was denied reasonable time to complete its work.
The period of time from the December 16 Administration Report indentitYing four schools for
possible closure and the May 12, 2011 meeting of the ARC was approximately 150 days. The
tim.e period from the first ARC meeting until.its last meeting was 100 days. School-based
members of the ARC met in working groups before and throughout the ARC process. Four full
meetings were held, at the last of which 'members had three hours to make a decision. While
mindful that the five members of the ARC who signed the Minority Report asked fQr additional
time., the Board Policy provided for a maximum of four meetings. The ARC could not extend its
own mandate. Hick quite rightly advised Blair oftrus fact and the motion was ruled out of order. '
There is no evidence' that any members of the ARC contacted Trustees about the need for a
Trustee resolution to extend the ARC.
[91] Moreover, the applicants do not assert how the lack of additional time prejudiced them in
the end result. No school was recommended for closure. There is no assertion that additional
time could have led to a different set of recommendations.
[92] In fact, there is evidence to the contrary in the affidavits of Hick, Lori Quinlan
("Quinlan") and Lauren Dall:i.n (''Dallin'') (both members of the ARC). Both Quinlan and DaHin
stated that, at the fInal meeting, a few community representatives requested additional time in the
form of another meeting. While the scheduling of another full meeting of the ARC was not
permitted by the Board Policy; the chair suggested that the ARC recess until. the following
afternoon in order to permit additional time. The ARC members declined this option.
[93] Both Quinlan and Dallin stated the ARC had sufficient time for its deliberations. Both
felt comfortable that the ARC members had ample opportunity to review the material presented,
hear from the public delegations, consult with o n ~ another and exchange their views. DaHin
stated that, although there were a number of public delegations presented during that last
meeting, there was no longer any real contribution of new ideas.
[94] Moreover, both stated that an additional meeting of the ARC would not have made a
difference in terms of the final decision of the ARC. It was noted that while the ARC
recommended th.at the foUI secondary schools be consolidated into three secondary schools. it
did not identify which school should be closed. Both felt that this was .due to the public nature of
the decision-making process.
[95]' Hick 'stated that by the time it reached its decision, the ARC had heard delegations from
57 members of the public, 28 of whom supported the retention of PCVS in it$ present torm.
According to Hick, the delegations from the public were repetitive, the same points were being
made again and again. No viable suggestions had been made or w e ~ e under discussion as an
alternative to closing one of thc four schools. Hick noted that the meetings were held in public
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and the atmosphere was often highly charged and emotional. He stated that, absent a secret
ballot (which is not permitted in the Board Policy), the ARC did not have the political will to
identify a specific school for closure. The Facilitator echoed a similar view in her report at page
19:
. There is also little to suggest that an additional public meeting in a "fishbowl"
context with further delegations would have achieved the desired outcome of
mote fruitful discussion among ARC members.
[96] Finally, it is to be noted that when PCVS was recommended for closure on June23, 2011
(albeit as an alternate course of action) its supporters still had over three months to try and
influence the decision of the Trustees. Critically, the applicants' position is that it was the failure
of the June 23 AdnrinistJ:ation Report to state more clearly that retention of the TASSS site, and
therefore continuation of PCVS, was contingent on re-p'q!posing of the T ASSS site that
constituted the denial of procedural fairness, rather than any outcome of the ARC process ..
[97] The applicants complain that the Board did not provide the ARC with specific terms of
reference as is required by MOE Guideline. However the case law is clear that when closing a
school, a school board o.eed not precisely follow these guidelines. Thc MOE Guideline is not to
be scrutinized in the same way as a legislative enac1ment would be.. It is thc substance of what is
done that is crucial, rather than the teclmicalities. The issue is whether the process is
procedurally fair.
[98] Although no teuns of reference specific to the ARC were created, the Board Policy set
out terms of reference applicable to all ARCs. The covering letter concerning the fIrst ARC
meeting described the role of the ARC members and mandate of the ARC (set out above in these
Reasons). As mentioned, prior to the first meeting of the ARC, its members received a package
of materials that included the Board Policy on ARCs and the December 16 Administration
Report which led to the creation of the ARC and set out the ibur schools identified for the group
school accommodation review and possible closure. It was apparent that the ARC was to
explore possible outcomes that would reduce the number of schools in Peterborough with excess
capacity.
[99] Andrew Pyle was the only mem.ber of the ARC who ptovided evidence on behalf of the
applicants. He stated in his affidavit that he found the ARC's mandate confusing. However he
admitted on cross-examination that he did not attend the first meeting of the ARC. The two
ARC members who gave evidence on behalf of the Board stated that they had no difficulty
J.mderstanding the ARC's mandate from the materials provided by the Board. They also stated
that the discussions at the first meeting of the ARC were helpful in understanding the
[100] In summary, while there were no specific terms of reference for the ARC, its mandate
was sufficiently clear. Again, the applicants have. pointed to no particular prejudice in this
.
[101] The applicants have also raised a concem that the ARC was not provided with
information concerning potential partnership opportunities or the lack thereof at the outset of the
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process as required by the MOE Guideline. It was the uncontradicted evidence of Hick that there
was a lack of partnership opportunities. While this was' not identified to the ARC at the
beginning of the process, it was brought to the attention of the ARC during the course of its
deHberatjons. There is no evidence before the Court of the availability of any such partnerships
that would alleviate the programming problems caused by the existing distribution of the student
population across the four schools. Again, this is a breach of torm over substance causing no
prejudice.
,[102] The applicants further complain that the ARC was not provided with adequate
infonnation so that they could fully develop and prcs!'!nt the viewpoint that they wished to be
heard. The applicants complain that the ARC was not given a copy of the MOE Guideline, a
2010 School Facilities Overview or any infonnation that would enable the ARC to consider
composite school issues such as the dem.and for technical education in Peterborough at the
secondary school level. Further, instead of providing completed SIPs to the' ARC as required by
the MOE Guideline, only a generic document was given to each school at the outset of the
process.
[103] As set out above, prior to the frrst meeting of the ARC, its members received a package
of materials that -included the December 16 Administration Report and data collection reports in
respect of each of the four schools. These data collection reports included information relating to
student enrollinent, facilities, transportation, staffing, corinnunity use, barrier free
access, financial data and comparative data. Additional infonnation was provided during the
ARC process at the request of its members. For example; there was a reque'st that the market
value 'of each school be provided. This took some time as there was a Significant cost associated
with providing appraisals and a tendering process had to be utilized by the Board. The full list of
infonnation provided to the ARC is set out in the Facilitator's Report.
[104] The Administration did not provide fully completed SIPs. It was of the view that the data
collection reports contained the objective empirical information about each school which would
be used by ARC members, within their school based working groups, to populate the data fields
called for by the SIPs. The completion of the 'SIPs by each school occurred aftet the first two
regular meetings of the ARC, thus no meeting time was lost. Further. the respondent states that
rouch of the information called for by the SIP was subjective and domestic. It waS the position
of the respondent that this inibnnation was therefore best provided by the .school-based ARC
members both to ensure accuracy and to avoid that the Administration was describing
one or m9re of the schools unfairly. While this process departed from the MOE Guideline, there
is no evidence that the manner and timing of the preparation of the SIPs prejudiced the ARC
decision..;making process.
[105) The SIPs were available for the April 7, 2011 ARC meeting. According to Quinlan's
evidence, the SIPs were utilized and were a significant topic of discussion during the ARC's la!>i
two meetings. According to her UDcontradicted evidence, ARC members were welcome to ask
for clarification as to any information provided in the SIPs, but no such questions were asked.
[106] The applicants have, also raised as a concern that the ARC was not given any information
that would enable it to consider composite school issues. However, there is no indication in the
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materials before the Court that a request for such information was ever made by any member of
the ARC. The SIP created by the PCVS'representatives identified the school's weakness in this
area. Further; the applicants have not pointed to any infonnation regarding composite school
issues that demonstrates that the ARC made a mistake in recommending that the programming of
four schools be consolidated into three, nOT any evidence of prejudice arising from the absence of
such information.
[107] The ARC was not given a copy of the Board's 2010 School Facilities Overview. In the
Affidavit -of Shirl Delarue C"Delarue ") at paragraph 80, it is suggested that TASSS was incurring
excessive maintenance costs as identified in the 2010 School Facilities Overview and that this
document 'WaS never presented to the ARC. ,I-lick responded to this issue in his affidavit at
paragraph 83. He stated that the excessive costs identified m that document regarding TASSS
were calculated on a "pel." pupil;; baSis and, therefore, was not an indictment of the condition of
the building. All of the schools under review were in satisfactory condition. The concerns
related to the number of students (and student grants) associated with the facility. In fact, this is
simply an example of the underutilization of Board facilities which motivated the ARC process.
[108J The case law referred to above provides that the right to be heard includes the right to
reasonable disclosure of information that will enable the affected party to develop and present
the viewpoint he or she wishes to be heard. However. this does not require full disclosure of
every scrap of relevant paper. On the evidence before'the Court. the applicants had reasonable
and sufficient disclosure to meaningfully participate in the process and to present their point of
view. It is also significant that none of issues raiscd by the applicants relate directly to the
ceutral issue as it evolved commencing with the June 23 Administration Report.
3. The A"QpeaJ:ance of Fairness was Compromised
[109] The applicants have raised a number of Board actions described above in paragraph [46]
in support of their position that the appearance of fa.irness waS compromised in this case. The
concerns set out in sub-paragraphs [46] (b), (d) (f) and (g) have been dealt with already in these
Reasons and will not be repeated. The remaining issues ate addressed in tins SCCtiOIL
(110] The applicants raise as a concern the fact that, at the June 19,2008 meeting of Trustees,
the scope of the accommodation review was narrowed from Peterborough County and City
secondary schools to only City schools. It is stated that the fact and rationale for
this change was reflected in the minutes of this meeting. A member of the community not
present at the meeting would have no notice or understanding of the altered scope.
[111] It is difficult to understand how an: action which took place almost three yeats before the
ARC would have the effect of tainting the appearance of fairness. This action took place in the
context of an anticipated ARC which did not materialize at that time. Further. while the
discussion with re::."Pcct to this issue was not reflected in the minutes of the meeting on June 19, .
2008. which was conducted in public. a transcript of that meeting indicates that the
Administration clarified that it intended a review limited to the PeteTix)tough City schools and
that 'the Administration Report inaccurately reflected the hltention of the Administration. No
exception was ever taken to this until after the Trustees' decision on September 29, 2011.
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[112] The applicants also pointed to the threat of disciplinary action made against 'employees of
the Board (which would include ten members of the ARC) for any comment which might reflect
negatively upon the policies and procedures of the Board. In a response to a question from a
member of the ARC as to the role of school staff in the accommodation review process, Blair, as
chainnan of the ARC, sent an e-mail dated February 24, 2011 which stated that "when
expressing opinions they should be fair and positive. Any comment made by' an employee that
reflects negatively upon the policies and procedures of the Board may be dealt with in a
disciplinary manner.
1
' .
[113] The context in which this e-mail was sent should bc noted. According to Hick the
precipitating event was a comment made at an ARC meeting by an elementary school teacher
(whose husband, also a teacher, was employed at TASSS) to the effect that the ARC "should not
be concerned with the viability of fast food establishments or pool halls". Hick considered this .
remark to be aimed at, and disrespectful to, the downtown students (principally PCVS) and the
downtown comnu.mity.
[114] However, Hick was of the vrew that the last line of Blair's e-mail set out above was
inappr:opriate. To that end he authored a letter to be sent from him and various union
representatives to all Board employees, irrespective of worksitc, inviting them. to share their
opinions on the issues, provided they were expressed respectfully.
[115] The comment of Blair was unfortunate but it was appropriately dealt with by Hick. The
applicants put forward no evidence from any employee that they were intimidated by this e-mail
from bringing forward their views. Quinlan stated in her affidavit that she did not feel threatened
by this message in any way. She also stated that she was never cautioned by any member of the
Board for speaking.her :mind, that she was very vocal in expressing her views, and that she was
comfortable in doing so+
[116] Finally, the applicants complain that the ARC recommendations were presented to the
Trustees in a m.anner inconsistent with the reconunendations as voted on by the ARC and
without any opportunity for public input+ There is no doubt that the Minority Report was not
included in the Administration report presented. to the Trustees at their meeting on May 26, 2011,
nor were the results of the vote provided. However, Hick stated in his affidavit that the Minority
Report was e-mailed to the Trustees on May 18, 2011 + Further, in addition to the three Trustees
who were on the ARC and a t t e n d ~ d all of its meetings. several other Trustees were in attendance
at the final ARC meeting of May 12, 2011. The Trustees were well aware of the difficulties
encountered by the ARC in attempting to reach a consensus. Moreover, one of the signators to
the Minority Report presented the Report at the May 26, 2011 meeting of the Trustees. While
there was no opportunity for public input prior to the ARC recommendations being presented to
the Trustees, the public had ample opportunity to address the results of the ARC process at the
May 26, June 23, Augv.st 25 and September 29, 2011 meetings of the Trm.'tees.
Conclusion Regarding the Issue of PTocedural Fairness
[117] In summary, for the reasons set out above, this Court finds that the respondent did not
breach its duties of procedural fairness and natural justice. While there may have been some
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technical procedural defects, nonc was so fundamental as to affect the very basis of the decision.
The applicants were afforded the opportunity for meaningful participation in the aCtual decision-
making'process. Perfection is not the standard. While not perfect the process was fair.
Was PCVS Closed?
[118 J The case law has established that the duty of fairness is not engaged if a scboolis not
closed. It js the position of the Board that the Decision does not result in a closure of PCVS and
that PCVS will remain open as a vibrant diploma-granting SChool, attended by a substantial
number of students; teachers and staff.
[1191 While this Court has reviewed the principles with respect to procedural fairness in thc
context of a school closing and has determin.ed that procedural fairness was accorded in the ARC
process and the.' decision-making of the Trustees, if it were necessary to address this issue we
would also conclude that PCVS has not in fact closed on thc evidence in the record.
[120] A number of principles can bc gleaned from the case law that addresses the issues
rtllevant to whether a school closurc has occurred in any given circumstance:
1. While there is a right for a student to attcrid'a school, a student does not have a
right to attend any particular school, but only to attend a school within the
appropriate district. (See for example Crawford v. Ottawa (City) Board of
Education; [1971] 2 O.R. 179 (C.A.); Fisher Park Residents Assn. Inc. v.
Ottawa Bd Of Education (1986), 57 O.R. (2d) 468 (Ont. S.C.) ("Fisher
Parle}.)
2. There is no statutory limitation on the power of a school board to reallocate
students within its school district, and no obligation on the board to establish
and maintain a body of public schools in like manner. A board can make
adjustments to the school population as contingencies arise with a view to
providing overall high quality education in the school district, and a better
utilization of its facilities. The reallocation of stud((1lts in this manner does not
constitute a school closing. (See Vanderkloet v. Leeds and Grenville (United
Counties) Board of Education (1985),51 O.R. (2d) 577 (C.A.) at paragraph
19 ("Vanderkloefj.)
3. No duty offaimcss is applicable to decisions respecting the allocation of
students from one school to another (see Vanderkloet, supra; Stockley v.
Avalon East School Board (2000), 192 Nfld. and P.E.I.R. 150 (,'Stockley");
, Lundale v. Vigfusson. 2003 MBQB 278, ("'Lundale"); Fisher Park, supra.)
4. To have a school, there must be pupils, teachers and other'staff, and a
building. If you remove anyone of those elements in substance, a school
ceases to exist. (See Dolyny v. Fort Francis Rainy Rivet Board of Education,
[1995] 0.1. No. 2752 (Gen. Div.).)
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5. The fact that all of the students of a particular school are being transferred to
anothcr school OT that an entire program is being transferred to another school,
does not necessarily mean that a school is closed. (See Stockley, supra;
Lundale, supra.)
P.032/038
[121] PCVS currently has approximately 720 students and 80 staff. Approximately 304
students are enrolled in its Integrated Arts Program ("lAP"). The lAP draws students from the
entire region served by the Board. The lAP is to be transferred to TASSS. The remaining PCVS
students will transfer to T AS SS, .Adam Scott or Kenner.
[122] However PCVS will remain as a fully functioning school. It is not being closed but,
rather re-purposed. As mentioned above, PCVS' will become the home fOI: the Board's
Alternative Education Program in Peterborough. At any given time some 300 students are
involved with this program. PCVS will also house the Board's Continuing Education Program,
the Board's Literacy and Basic Skills Program., its School for Young Moms and its
, Correspondence Program. The anticipated number of persons involved on a daily basis in
delivering' or receiving the ongoing programs to be provided at PCVS, effective Septem.ber 2012.
is expected to be in the neighbourhood of 400 staff and studeuts on a continuous intake basis, as
well as 200 to 250 students who will access the school irregularly. Approximately 30 Board
, teachers and support starf will be regularly employed, directly or indirectly, in providing these
programs. There is no doubt that PCVS will continue to opel.'ate as a school.
[1231 While the Board instituted an ARC process. and while we are mindful that during the
course of that process the Board used the term "closurc" with respect to PCVS at various times.
the use of this terminology does not determ.ille the issue. The outcome of the ARC proceSS was
unclear until the decisions of the Trustees. The, end result is that PCVS will not close 'but will .
instead be re-purposed as an educational facility. In fact and in law this is not a school closure.
The duty of fairness therefore does not apply to the Decision of the Board.
Decision Wi.thout Statutory Authoritv
[124] The applicants also submit that the Board aCted beyond its authority under paragraph
171(1)7 of the Act and, accordingly, the Decision was ultra vires and must be quashed by this
Court. The standard of review with respect to this issue is correctness.
[125] The applicants make two arguments. First, they say the Board failed to act in accordance
with. its own Board Policy in two respects; (l) no informa.tion meeting was held to present the
ARC recommendations or report to the public; and (2) the issues, concerns and factors that
contributed to the "impasse" among the members of the ARC. including the existence of the
Minonty Report, were not disclo15ed to the Trustees. The Facilitator's Report addressed the first
issue but did not specifically address the second.
[126] Second, the applicants say that the Board Policy fails to comply with the MOE Guideline
in three respects: (1) the Board Policy does not provide for proper terms of reference or
mandate; (2) the Board Policy did not contemplate informing the ARC at the beginning of the
process regarding partnership opportunities; and (3) the Board Policy, does not comply with the
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MOE Guideline with respect to the preparation and use of SIPs by the ARC. Each of these
matters was addressed in the Facilitator's Report.
[127] The Court does not agree that there was noncompliance with the Board Policy for the
following reasons. .
[128] Paragraph 171 (1)7 provides for a school closure "in accordance with policies established .
by the board from guidelines issued by the Minister". For this pmpose, thcre must be subStantial
compliance with the "policies established by the board" - in this case, the Board Policy -
considered as a whole. On the evidence, this standard was met. The applicants have identified
only two matters that they say were not complied with. Neither of these is material in the
context of the Decision of the Trustees and neither prejudiced.the applicants' ability to put their
case before the Trustees.
[1291 As discussed above; there was ample disclosure within the COIIlIllunlty of the ARC
recommendations. There was also a full opportunity at the meetings of the Trustees on May 26,
June 23, August 25 and September 29,2011 to comment on the ARC recommendations as well
as subsequent developments. We agree with the Facilitator's conclusion th,at the absence of an
information meeting to present the ARC recommendations or report to the public was a
"technical violation" of the Board Policy that did not have an impact on the information provided
to the Trustees for consideration in their decision-making.
(130] In addition, it is not correct to suggest that the ARC reached an "hnpasse" given that the
Minority Report represented the vicws of only 5 ot'the 34 members of .the ARC. In any event,
one of the ARC members who signed the Minority Report presented it to the Trustees at the
Board meeting on May 26, 2011.
[131] Similarly, the Court does not agree that the alleged failure of the Board Policy to comply
with the MOE Guideline invalidated the Decision. Paragraph 171(1)7 of the Act requires that
the Board Policy be established "from. guidelines issued by the Minister". While this requires
substantial compliance with tile MOE Guideline, it docs not automatically invalidate a school
board decision if a board policy does not track the MOE Guideline in all respects. 'To the extent
that there are differences. even deficiencies. in a school board policy. the issue becomes whether
those differences and/or deficiencies were material and, if so, whether they were addressed in
some manner in the decision-making process of the Trustees. As noted above in the Huron East
decision, what is important is whether there has been a good faith effort to air the issues involved
puhlically and adequately. In the present circumstances, the Court is satisfied that each of the
three matters identified by the applicants were addressed in the ARC process.
[132] The ARC members were fully informed as to the mandate, or terms of reference, of the
ARC based on the materials they received before the fIrst meeting of the ARC. This ma.tter has
been addressed above. .
[133] The evidence indicates that the extent of partnership possibilities was commwricatcd to
the ARC members in the eourse 0 f their deliberations with sufficient time to consider the issue in
reaching their reconunendations, even if the Administration failed to. provide this communication
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at the beginning of the process as contemplated by the MOE Guideline. This matter has also
been addressed above. The fact is, as the Facilitator noted, thai there are no meaningful
partnership opportunities that have been identified by the Administration or by the applicants
that should have been taken into consideration by the Trustees.
[134] With respect to the SIPs, as discussed above, it is clear that the ARC members ultimately
received the benefit of the pro tIles of each of the four schools involved in sufficient time to take
that information into consideration in making their recommendations. The principal impact of
the defective procedure, i.e., the failure of the Administration to complete the SIPs prior to
commencement of the ARC process was to render the ARC meetings less efficient. It cannot be
said, however, that the ARC members did not have the information contemplated in the SIPs in
some fonn by the end of the thlrd meeting of the ARC at which the SIPs were fmalized. The
MOE Guideline contemplates that the ARC meetings will discuss, consult on, modify and
finalize the SIPs", implying that the ARC members were expected to spend some time finalizing
the SIPs in the course of their deliberations, Which OCCUl,Ted. In the circumstances, we are not
persuaded that the process adopted in respect of the SIPs substantially departed from the MOE
Guideline to the point where it materially affected the decision-making process of the ARC or
the Trustees.
[135]- Based on the foregoing, the Court rejects the applicantls' submission that the Decision
was ultra vires and must be set aside on the grounds that the Board failed to act in accordance
with the Board Policy or on the grol.U1ds that the Board PoHcy tails to comply with the MOE
Guideline.
Ded:don Based on an Irrelevant ConsideratioD.
[136] The applicants further submit that the "subjectively prohibitive" cost ofre-purposing the
TASSS site for the Board's administrative offices was not a relevant consideration under the Act.
They say the Board's authority to close schools is limited by paragraph 171(1)7 of the Act.
which provides that school closures can only be. undertaken in accordance with the MOE
Guideline. . The applicants rely on the language in the MOE. Guideline. that explicitly requires
that any decision be based on the "quality of the learning experience for students". The standard
of review with respect to this issue is correctness.
[137] The applicants say this consideration went to the heart of the Decision.. On this basis,
they submit that the Decision must be set aside as. exceeding the scope of the discretion imparted
to the Board, as an administrative decision-maker, under the Act: see Prince George. (City) v.
Payne, [1978] 1 S.C.R: 458 at paras. 9-11; and Bareham v. London (City) Board of Education
(1984),46 O.R. (2d) 795 (C.A.) at para. 22.
(138] The Board says the effective stewardshlp of resources which is required of the Board by
paragraph 169.1(1)(b) of the Act compelled the Administration to change its recommendation. It
points to the fact that it is constrained by the funding model dictated by the Government of
Ontario and that it carmot ron a deficit by virtUe of the provisions of section 231 of the Act. It
says, therefore, it would be irresponsible to incur costs in excess of the value of its current
Education Centre building in re-purposing the TASSS facility to accommodate the Education
14:37 DIV COURT
416 327 5549 P.035/038
Page: 34
Centre. The Board says that the proper response of critics of the Decision lies through the
electoral process 'not in the courts. '
[139] We do not agree with the applicants that the Decision is invalid because the Trustees
exceeded the scope of their discretion under, the Act in taking into account the cost of
purposing the TASSS site to accommodate the Board's 'administrative offices as part of the
larger question of deciding between the options before the Board.
[l40J Th,e applicants' argwnent mischaracterizes the significance of this consideration in the
context of the Decision. Ultimately, the Trustees detennined that the value of the TASSS site as
an educational asset justified retention of that site even though that required consolidation of the
educational programs currently offered by PCVS intq other schools. The Trustees reached this
decision after. the Administration conel uded that another option - which would have maintained
the T ASSS site for futme purposes and maintained the existing programming at PCVS - was not
economically feasible. It was in this context the exploration of a '"win":win" solution that all
parties hoped was feasible -that the economic feasibility ofre-purposing the TASSS site became
a relevant consideration.
[141] The applicants do not challenge the validity of the Administration's based on
the ZAS Report, that such r,e-purposing would have entailed substantial costs to the Board. Nor
do they challenge the Administration's assessment that these costs would not be fully offset by
the sale of the existing Board office building. They also do not propose any other funding
mechanism that would have allowed the Trustees to implement the recommendation in the June
23 Administration Report.
[142J In this context, it was reasonable for the Trustees to decide that the option of retention of
existing programming at PCVS coupled with the consolidation of the programs at TASSS into
other schools and the re-purposing of the TASSS she was not feasible. The fact that the
economic feasibility of re..;purposing the TASSS site was a significant' component of that
conclusion does not render the Decision in.valid as being beyond the scope of the Trustee's
discretion under the Act. Even without the provisions of paragraph 169.1(1)(b) of the Act, the
Trustees were reql.1ired to act in a fiscally prudent manner in their decision-making. Paragraph
169.1 (1)(b) imposes a specific duty of stewardship" that is no less significant a duty
than any of the other duties of the Board set out in section 169.1 of the Act. The Board was not
only entitled but was also obligated to have regard to this duty in reaching any decision
authorized under paragraph 170(1) 7 of the Act. Moreover, the Decision of the was
based on a detennination' that the TASSS site was a significant educational, rather than
economic, asset. As such, the Decision was also based on the learning experience for present
and future students within the Board's territory.
Additional Issue - Delay
[143] In view of the conclusions reached' above, it is not strictly necessary to deal with the issue
of delay raised by the Board. That said, we make the following comments which may be of use
in the future. The delay of over six months in launching the judicial review application was
OCT-09-2012 14:37 DIV COURT
416 327 5549 P.036/038
Page: 35
excessive, given the tight time lines required to implement the Decision before the opening of the
2012-2013 school year.
[144] It is difficult to accept the applicants' explanation that it wished to know the result of the
Facilitator's administrative review of the ARC process that the applicants had -requested, which
could bave no binding effect, before considering their next step.
[145] The evidence in the affidavitof Foy was unchiillenged. She gave a clear description of
the serious difficulties that would result, and the extensive disruption in the lives of students and
staff that would be occasioned, by an order of certiorari at this late stage. Under these
circumstances, the delay in bringing this application would have been fatal if it had been
necessary to consider this issue.
Conclusion
[146] Based on the foregoing, the application is dismissed in its entirety.
[147] If the parties are illlable to agree on costs, they shall have 14 days from the date of these
Reasons to provide a costs outline and to make written submissions not exceeding three pages in
length. .
Polowin J.
Wilton-Siegel J.
Released: October' ,2012
OCT-09-2012 14:38 DIV COURT 416 327 5549 P.037/038
CITATION: Shirl DeLarue Y. Kawartha Pine Ridge District School Board, 2012 ONSC 3349
. DIVISIONAL COURT FILE NO.: 214/12
DATE: 2012-10-09
Released: October 9,2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHlRL DELARUE, MICHAEL SAUNDERS,
CATHERlNE nffiBEN. NANCY CHESHER, JAY
AMER, PETER ADAMS, WAYNE BONNER, ERICA
CHERNEY, JOANNE BROWN AND BILL
TElVlPLEMAN OPERATING AS PETERBORUGH
NEEDS PCVSeterborough Needs PCVS
Applicants
-and-
KAWARTHA PINE RIDGE DISTRICT SCHOOL
BOARD
Respondent
REASONS FOR DECISION
The Court
OqT-09-2012 14:38
DIV COURT
416 327 5549 P.038/038
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IF COST SUBMISSIONS ARE INDICATED .
UNLESS OTHERWISE DIRECTED
KINDLY FILE FOUR HARD
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COPIES OF COST SUBMISSIONS
TOGETHER WITH AN AFFIDAVIT OF SERVICE
WITH THE COURT OFFICE AT
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