QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 269 Date: 2007 07 26 Docket: Q.B.G. No. 902 of 2007 Judicial Centre: Regina BETWEEN: GREGORY METZ and TIMOTHY GENI APPLICANTS (Plaintiffs) and THE BOARD OF EDUCATION OF THE PRAIRIE VALLEY SCHOOL DIVISION NO. 208 OF SASKATCHEWAN RESPONDENT (Defendant) Counsel: Aaron A. Fox, Q.C., and Barbara C. Mysko for the applicants James R. McLellan for the respondent FIAT LAING C.J.Q.B. July 26, 2007 [1] The applicants, who are residents of Wilcox, Saskatchewan, and have children attending Wilcox School, seek an interlocutory mandatory injunction preventing and restraining the respondent Board of Education (the Board) from acting upon a resolution passed by the Board on May 7, 2007 that the Wilcox Public School be closed effective August 15, 2007. The grounds put forward for the application may be summarized as: (1) The Board provided inadequate notice of an election for the Wilcox school community council, and it is alleged the election is nullity. As result there was no council for the Board to consult with as required by The Education Act, 1995, S.S. 1995, c. E-0.2 (the Act) upon decision being made to close the school. (2) The Board failed to comply with the requirements of procedural fairness in the manner in which they proceeded to pass the resolution closing the school. THE LEGISLATIVE BACKGROUND TO SCHOOL CLOSURES [2] Section 87(1)(x) of the Act grants the power to board of education to close schools upon compliance with the requirements thereafter set out in the section. Section 87(1)(x) states: 87(1) Subject to the powers of the conseil scolaire with respect to the division scolaire francophone and minority language instruction programs, board of education may: (x) with respect to any school situated in school district: (i) close the school or discontinue one or more grades or years taught in the school where the board of education has, prior to the effective date of the closure or discontinuance of grades or years, obtained the consent of the school community council to close the school or discontinue one or more grades or years taught in the school, as the case may be; or (ii) subject to subsection (2), close the school or discontinue one or more grades or years taught in the school where the board of education has: (A) at least 10 days prior to the day on which the meeting mentioned in paragraph (B) is held, given notice of the meeting mentioned in paragraph (B) in accordance with subsection (3); (B) at least three months prior to the notification mentioned in paragraph (C), convened meeting of the person is eligible to vote in an election of the school community council for the school to advise them that the closure of the school or the discontinuance of one or more grades or years taught in the school is being considered by the board of education; (C) at least three months before the effective date of the closure of the school or discontinuance of one or more grades or years taught in the school, as the case may be, by registered mail, notified the school community council of the school that will be closed or in which the teaching of one or more grades or years will be discontinued, of: (I) the board of education’s decision to close the school; or (II) the board of education’s decision to discontinue one or more grades or years taught in the school; and (D) following the notification mentioned in paragraph (C) and prior to the effective date of the closure of the school or discontinuance of one or more grades or years taught in the school, as the case may be, consulted with the school community council of the school that will be closed or in which the teaching of one or more grades or years will be discontinued with respect to educational services for pupils who will be affected by the closure or discontinuance of one or more grades or years, as the case may be. 87(2) board of education may close school or discontinue one or more grades or years taught in school, pursuant to subclause (1)(x)(ii), only where the effective date of the closure or discontinuance occurs during the period: (a) commencing at the end of the day determined by the board of education, pursuant to section 163, as the last school day in one school year; and (b) ending on the day prior to the day determined by the board of education, pursuant to section 163, as the first school day in the school year following the school year mentioned in clause (a). (3) The board of education, with respect to notice mentioned in paragraph (1)(x)(ii)(A), shall: (a) publish the notice in at least one issue of newspaper published and circulating in the attendance area or in any city, town or village in which the school that is to be the subject of the meeting is situated; and (b) post the notice: (i) in at least five widely-separated, conspicuous locations in the school district or attendance area in which the school that is to be the subject of the meeting is situated; and (ii) in the building in which the headquarters of the school division are located. [3] Section 140.1 of the Act states that there shall be school community council established for each school. The section states: 140.1(1) Subject to subsections (2) to (4), every board of education shall establish school community council for each school in its division. [4] Section 3.5(3) of The Education Regulations, 1986, R.R.S. c. E-0.1 Reg (the Regulations) require at least four weeks’ notice to the public before public meeting is held to elect members of school community council. Regulation 3.5(3), (4) and (5) state as follows: (3) returning officer shall provide at least four weeks’ notice to the public before public meeting is held to elect members of school community council. (4) The notice shall state: (a) the purpose of the meeting; (b) the attendance area or the geographic area for the school community council; (c) where any policies or procedures developed by the board of education respecting the election of the school community council can be reviewed; and (d) the date, time and location of the meeting. (5) The notice shall be advertised or posted in such way that it would be reasonably expected to reach the parents or guardians of pupils for that school and community members. THE POSITION OF THE PARTIES [5] The applicants do not take issue with the formalities for the meetings required by s. 87(1)(x), supra. They do take issue with the election which took place on January 18, 2006 to elect members to the school community council. The notice for election of new school community council was posted on December 22, 2006 for an election to take place on January 18, 2007. It is agreed that by reason of s. 3.5(3) of the Regulations, supra, and the operation of s. 24(3) of The Interpretation Act, 1995, S.S. 1995, c. I-11.2 which states that when the words “at least” are used, time should be calculated with the first and last days being excluded, the notice period for the election was only 26 days as opposed to the 28 days represented by four weeks’ notice. It is the applicants’ position that the election which took place on January 18 is nullity because of the short notice, and therefore there was no legal school community council for the Board to consult with once the decision was made to close the Wilcox School; ergo the Board has not, and cannot, meet the statutory requirements for school closure this year because the Act states school may only be closed in the months of July and August. [6] The applicants also submit the Board failed to comply with the common law duty of fairness in passing its resolution for school closure. They allege the breach of the duty arises by reason of: (1) The Board failed to provide the applicants with complete and accurate information relating to the Board’s decision to close the school. This allegation relates to the fact the Board held in camera meetings and did not disclose what it discussed in the meetings. The evidence is the Board does not keep minutes of in camera meetings. (2) The Board ignored, or did not directly respond to all of the submissions made by the persons in opposition to the school closure. (3) The Board refused to publicly disclose the reasons for the decision to close Wilcox School, or alternatively, disclosed either inadequate or inaccurate reasons. [7] The position of the respondent Board is that the short notice for election of the school community council is irrelevant to the issue of whether or not the closure resolution was properly enacted, and in any event deny that the short notice renders the election of the school community council nullity. The Board also takes issue with the allegation of lack of procedural fairness. Without conceding that the Act requires procedural fairness over and above the requirements set out in the Act, its position is that the Board presented plenty of opportunity to receive feedback from the community, and that it met the test of procedural fairness for the type of process the Act required the Board to undertake. BACKGROUND FACTS [8] The respondent, The Board of Education of the Prairie Valley School Division No. 208 of Saskatchewan, was created effective January 1, 2006 as result of process established by the Government of Saskatchewan to restructure school divisions. Through the process, 79 school divisions became 28 school divisions. The respondent School Division was created by combining seven complete school divisions and one partial school division into one. In 2006 the school division had 46 schools within its boundaries. [9] In 2006 the respondent Board of Education prepared document entitled “viable schools policy”. The policy in its introduction states the need to maintain viable schools and classrooms within the context of the entire school division, and goes on to say in order to ensure quality education for its students the Board of Education may, from time to time, have to consider discontinuing one or more grades offered in school or closing schools. The introduction to the policy concludes: Therefore, the Board of Education of the Prairie Valley School Division will adhere to the following guidelines of operation with regard to determining the possible Review Status of school. These guidelines will provide process and procedure so that school review can be clearly predicted and people will have some assurance as to how and when decision process might be initiated. The balance of the policy sets out the criteria to be considered. The viable schools policy was adopted by the Board at its meeting on November 16, 2006, and was thereafter posted on its website. [10] Also on November 16, 2006, the Board served notice it was placing 11 schools under review, including the Wilcox School. The Board passed the following motion on this date: That, due to the projected low student enrolment, budgetary constraints and the capacity to meet program needs within existing financial constraints, this Board consider the discontinuance of one or more grades from up to and including the complete closure of Wilcox School with an effective date not earlier than July 2, 2007. [11] From the outset the community of Wilcox was concerned about the possible closure of its school. Following the School Board resolution to place 11 schools under review, Wilcox residents organized “continuing quality education committee”. Mr. Metz in his affidavit stated the purpose of the committee was to lobby the Board to consider alternatives to closing the school. At the time of its formation, the committee had 11 regular members. [12] On January 18, 2007 meeting took place at Wilcox Public School for the purpose of electing school community council. The estimate is that 80 persons were in attendance at the meeting. Nine community members were acclaimed as members of the school community council. No issue was taken with respect to the 26-day notice as opposed to the statutory 28-day notice prior to this application. [13] In press release dated January 3, 2007 and in newspaper notice to electors of the same date, electors at all 11 of the schools under review status were invited to public consultation meeting, each on different date. The notice stated the public meeting for Wilcox School would take place on January 23, 2007. [14] At the meeting on January 23, 2007, approximately 150 persons were in attendance. The meeting lasted for five hours from 7:00 p.m. to midnight. At this meeting, the superintendent of human resources for the Board read certain information and provided PowerPoint presentation which addressed the criteria set out in the viable schools policy, and facts and statistics relevant to Wilcox School, and to the Prairie School Division as whole. It was disclosed by the Board that if the school was closed students from Wilcox would attend Milestone School which is approximately 22 kilometres from Wilcox, and as most of the students of Wilcox School resided in Wilcox the bus ride would be approximately 25 minutes each way each day. The continuing quality education committee presented six-page paper of professional quality which under 10 different headings outlined why the Wilcox School should remain open. There were many verbal presentations and questions asked in the course of the meeting. The thrust of many of the presentations, including the written presentation by the Wilcox quality education committee was that the enrolment at the school which numbered approximately 57 children in 2006 had been static for number of years, disagreed with the Board on the disadvantages of multigrading which involves one teacher teaching more than one grade, and took issue with certain projections offered by the Board as to future enrolments and costs of operating Wilcox school in the future. [15] Following the meeting of January 23, 2007, numerous written submissions were submitted in favour of keeping Wilcox School open which are estimated to be in excess of two hundred. The Board and its personnel received telephone calls. At Board meeting on March 3, 2007, the continuing quality education committee made further presentation to the Board. [16] In March 2007 petition was circulated to keep the Wilcox School open. In excess of 300 signatures appear on the petition. On March 27, 2007 demonstration was held at the Legislative Building in the City of Regina to protest school closures in rural Saskatchewan. Wilcox residents were represented at this event. [17] On May 7, 2007, the Board met in camera for period of time, and thereafter in public meeting passed motion to close the Wilcox Public School effective August 15, 2007, and passed similar motions to close the other 10 schools that had been subject to review. In the affidavit material filed, the director of education indicated the Board in its private meeting took into account all the representations that had been made at the Board meetings, the written submissions it had received from the continuing quality education for Wilcox Public School Committee, as well as the material that the Board had generated, including the viable schools policy, the materials presented to the community members at the January 23 meeting, as well as certain research materials generated by Board personnel. [18] The Board evidence indicates that the 3.5 teacher positions assigned to Wilcox public school during the past school year have been reassigned to other schools in the division. THE CRITERIA FOR THE ISSUANCE OF MANDATORY INTERLOCUTORY INJUNCTION [19] The three criteria which must be assessed when considering whether or not mandatory injunction should issue, are the merits of the case, whether or not irreparable harm to the applicant will occur if the injunction is not issued, and even if it will, whether the issuance of an injunction would create greater harm to the respondent. [20] The applicants submit that with respect to the first criteria, being the merits of the case, all that is required is that there be serious question to be tried. In this respect they rely on RJR-Macdonald Inc. v. Canada (Attorney-General) (1994), 1994 CanLII 117 (SCC), 111 D.L.R. (4th) 385 (S.C.C.) where the court stated at page 402: What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfy this test. The threshold is low one. However it is worth noting that the Supreme Court of Canada in this case noted three qualifications to the foregoing general proposition. The first is when the result of the interlocutory motion would in effect amount to final determination of the action. The second is when the question of constitutionality (this was Charter case) presents itself as simply question of law alone. The third possible qualification the court did not endorse, but acknowledged at page 404 as follows: The suggestion has been made in the private law context that third exception to the American Cyanamid “serious question to be tried” standard should be recognized in cases where the factual record is largely settled prior to the application being made. Thus, in Dialadex Communications Inc. v. Crammond (1987), 1987 CanLII 4419 (ON SC), 34 D.L.R. (4th) 392 at p. 396, 14 C.P.R. (3d) 145 at p. 149, 57 O.R. (2d) 746 (H.C.J.), it was held that: Where the facts are not substantially in dispute, the plaintiffs must be able to establish strong prima facie case and must show that they will suffer irreparable harm if the injunction is not granted. If there are facts in dispute, lesser standard must be met. In that case, the plaintiffs must show that their case is not frivolous one and there is substantial question to be tried, and that, on the balance of convenience, an injunction should be granted. To the extent that this exception exists at all, is should not be applied in Charter cases. Even if the facts upon which the Charter breach is alleged are not in dispute, all of the evidence upon which the s. issue must be decided may not be before the motions court. [21] As noted by Robert J. Sharpe in his text, Injunctions and Specific Performance (looseleaf edition), at paras. 2.250 and 2.260: The difficulty of assessing the strength of case varies widely according to the circumstances. In virtually all cases, the court should exercise caution in the weight it attaches to its preliminary assessment, but this is to say no more than that the risk to the defendant must be carefully weighed. Where the chance of accurate prediction is higher, as for example, where the result turns on the construction of statute or the legal consequence of admitted facts, the court hearing the preliminary application is in very good position to predict the result. Moreover, procedural differences in Canada, notably the more frequent resort to the right to cross-examine on affidavits, will often place Canadian judge on firmer ground, even when dealing with conflicting evidence. [22] In Saskatchewan, this Court has stated in number of cases where mandatory injunction is being sought against public authority plaintiffs must establish on the material filed that they have strong prima facie case on the merits of the claim raised (Vide: Young v. Board of Education of Hudson Bay School Division No. 52, 2001 SKQB 376 (CanLII), 210 Sask. R. 145 (Q.B.), per Smith J. (as she then was) at para. 5, and Wellington No. 97 (Rural Municipality) v. Ligtermoet, 2002 SKQB 474 (CanLII), [2003] W.W.R. 339, 228 Sask. R. 135 (Q.B.), at para. 11, reversed on other grounds at 2003 SKCA 48 (CanLII), 232 Sask. R. 207 (C.A.)). The rationale for requiring the higher standard when seeking an injunction against public authority is that the public authority represents the public interest, and should not be temporarily prevented from acting unless there is real merit to the claim being advanced. Usually in such cases the facts are not much in dispute. In those cases which present complicated factual or legal issues which do not lend themselves to preliminary assessment, lower standard of “serious question to be tried” may be appropriate. [23] On the facts in this matter there is not much dispute on the facts. The question with respect to each of the grounds advanced by the applicants is whether on the facts the law would be likely to provide remedy. This is something the court is in position to analyse. The injunction is sought against public authority. conclude the appropriate standard to apply to the merits of the applicants’ case is the standard of strong prima facie case. (1) The Notice Argument [24] With respect to the applicants’ submission on the fact that the notice for election of the school community council was two days short of the 28 days required, a number of considerations arise. The applicants’ position is that because Regulation 3.5(3) utilizes the word “shall”, the 28-day notice requirement is mandatory, and therefore the election is nullity. However, with respect, finding of nullity does not necessarily follow when there is breach of statutory formality. As noted in the text, by Pierre-André Côté, The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Les Éditions Yvon Blais, 1991), at page 203: The presumption that provision is imperative, deduced from use of the word “shall”, is of prima facie nature and can be set aside. Secondly, the mere fact that provision is imperative rather than directory does not necessarily entail nullity for non-compliance; such sanction is applied only where its respect is compulsory or under pain of being declared void. “Shall” by itself is insufficient to suggest the legislator intended nullity as consequence of non-respect. The Quebec Interpretation Act (s. 51) and its federal counterpart (s. 28) “... clearly distinguish between that which is permissive and that which is not, but they do not decree the nullity of that which has not been done (according to the law)”. (emphasis added) and at page 204: In the absence of express provisions, several elements may indicate whether the legislator intended nullity as the consequence of an error in form. On this question “it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.” Three factors appear to influence the courts: the prejudice caused by non-compliance with formalities, the potential consequences of court finding of nullity, and the subject matter of the legislation. None of the foregoing three factors suggest finding of nullity would be appropriate with respect to the election that took place for school council members on January 18, 2007. [25] On the facts in this matter, the Act does not state non-compliance with formalities will result in nullity. There was no prejudice caused by the non-compliance with the 28-day notice period before the election of members to the school community council. The 26-day notice resulted in an attendance of approximately 80 persons, and in the end result nine persons were acclaimed. There is no evidence or suggestion a different school council would have been elected if the extra two days notice had been provided. There is no suggestion the existing school community council is incapable of fulfilling its role under the statute. No one complained at the time about lack of notice, and the fact the matter is raised at this time amounts to collateral attack on that election. [26] In this case the potential consequences of court finding of nullity militate against such finding. The relevance of the school community council in the closure of school arises after the decision to close the school has been made. To nullify all of the process and consultation that went into the school closure on this collateral ground would have serious consequences of causing at least one-year postponement in the efficiencies or improvements in student education which motivated the decision, and result in loss of time, energy, and money expended in the process. [27] In this case the subject matter of the legislation is to ensure that no school closure will take place without appropriate consultation. The Board acts on behalf of the whole of the respondent school division, and the decision taken is made bearing in mind the interests of the whole school division. In this case the consultation required by the Act (subject to the argument on procedural fairness) was complied with. [28] further factor is that the breach of notice in the regulations which is admitted does not automatically lead to the issuance of mandatory injunction. This point was made forcefully by Gerwing J.A. in Dysart School District v. Cupar School Division No. 28 (1996), 1996 CanLII 5042 (SK CA), 148 Sask. R. 41 (C.A.), at para. 9, where she stated: To assume, as this analysis does, that statutory breach automatically gives rise to an injunction is to dilute the safeguards surrounding the grant of such an extraordinary remedy by superior court. (See for example: Bean on Injunctions (2nd Ed.) p. and, with respect to mandatory injunctions p. 16 et seq.) Similarly the United States Supreme Court after an extremely useful and detailed historical analysis of the equitable history of the remedy of injunction concludes that it is never merely matter of course. And notes: “The grant of jurisdiction to insure compliance with statute hardly suggests an absolute duty to do so under any and all circumstances, and federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of the law.” [Weinberger v. Romero-Barcelo, 102 S.Ct. 1798 (1982) at 5,6] The respondent suggested that every breach did indeed automatically require an injunction and cited in support Costello and Dickhoff v. Calgary (City), 1983 CanLII 137 (SCC), [1983] S.C.R. 14. While that case does require on its circumstances strict compliance with expropriation laws it is important to note that the court held at p. 22 [S.C.R.]: “The courts do not always insist on rigid adherence to statutory requirements. ... “Thus, the courts have hesitated to impose high standard on municipal councils in the matter of exactitude of procedure and have been slow to interfere when their enactments are clearly within the ambit of their authority and the objection is only as to the procedure followed. This does not mean to say that in every case non-compliance with statutory formality will be overlooked. Where it is provided that power is to be exercised in certain manner or after prescribed condition has been complied with, it becomes necessary to determine whether any of these limitations on the grant of authority may be disregarded without entailing nullification of an act done otherwise than in the prescribed manner. If, in order to carry out the essential purpose of the legislature, strict compliance with the statutory provisions appears to be condition precedent to the exercise of the power, nonobservance thereof is fatal to the validity of the bylaw. On the other hand, where the community will suffer if the act is rendered nugatory and the essential purpose of the enactment will not be furthered by insistence upon an exact compliance, deviation therefrom may be excused.” The foregoing remarks were made by Gerwing J.A. in case in which permanent mandatory injunction had been granted because statutory notice in s. 92 of the then Education Act was one day late. [29] With respect to the foregoing ground, a preliminary review of the facts and law do not suggest a strong prima facie case. (2) Procedural Fairness [30] With respect to the allegation of lack of procedural fairness Arbour J. in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] S.C.R. 249 at para. 75 stated: The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority [authorities omitted] The nature and extent of this duty, in turn, “is eminently variable and its content is to be decided in the specific context of each case” (as per L’Heureux-Dubé J. in Baker, supra, at para. 21). At para. 22 of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817, L’Heureux-Dubé J. stated: Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in given set of circumstances. emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [31] Justice L’Heureux-Dubé went on in the Baker decision to outline at paras. 23-28 the several factors that have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in any given matter. She identified five factors while noting the list was not exhaustive. They are: (a) the nature of the decision and the decision-making process employed; (b) the nature of the statutory scheme; (c) the importance of the decision to the individual affected; (d) the legitimate expectations of the party challenging the decision, and (e) the nature of the deference accorded to the body. [32] Counsel for the respondent suggested that perhaps the applicants did not have the status to invoke the rules of procedural fairness because he contended it was more of an individual right than group right, and secondly they were not persons directly affected by the Board’s decision; only their children were. This position is not accepted. Children do not have the legal capacity to act independently in legal matters and the consultation required by the act is with the electors qualified to vote for school community councils, which is statutory recognition the applicants are an interested party. This application is brought by two individuals who identified their interest, which is an interest recognized by the Act, and is not collateral one. The rule of procedural fairness applies to the decision-making process of the Board in this matter, and this Court has previously held this to be the case. Vide: Young v. Hudson Bay, supra, at para. 19. [33] However review of the five factors identified by L’Heureux-Dubé J., supra, do not favour an overly stringent application of the procedural fairness rules in this matter. [34] Factor is the nature of the decision. As noted per L’Heureux-Dubé J. at para. 23 of the Baker decision, supra, the closer the administrative process is to the judicial process the more the governing principle should be imported into the realm of administrative decision-making. The procedure set out in the Act for the closure of schools is not akin to judicial process, but rather is policy process the Act entrusts to the Board who have the whole school division to take into account in arriving at decision on whether to close school. [35] Factor is the nature of the statutory scheme. The Act specifies the consultative approach that is required of Boards. In this matter the evidence is the Board honoured the process and publicized widely the criteria it would take into account, and received back both orally and in writing from the electors of Wilcox their points of view on the criteria. There is no suggestion in the material the applicants were denied in any respect the right to make their views known. The evidence is the Board considered all of such views in arriving at its decision. [36] The third factor is the importance of the decision to the individual affected. While the Board’s decision in this matter is no doubt important to the applicants, their lives will not be affected to the degree of person whose livelihood or reputation is at stake. [37] The fourth factor is the legitimate expectations of the person challenging the decision. L’Heureux-Dubé J. at para. 26 of the Baker decision, supra, points out that legitimate expectation is part of the doctrine of fairness, and does not create substantive rights. In this case the applicants were advised by the Act itself, and by the Board, of the procedure to be followed as the Board proceeded to consider school closures for Wilcox and other schools. There is no evidence the applicants had any legitimate expectation for any different procedure. There is no evidence that the Board made any representations with respect to procedure that were not observed by it, or that the Board went back on any substantive promises it made with respect to the procedure it would adopt. The applicants allege the Board did not answer certain questions raised at the public meeting which it said it would answer on its website. The applicants do not identify what questions were not answered. The evidence of the respondent in the affidavit of Jan Chell is that answers to all of the questions raised during meetings in the communities affected by the school review process which were capable of being answered were posted on the Board’s website. The applicants take issue with the fact the Board held in camera meetings to arrive at its decision, but there is no evidence it ever held out that it would decide in any other manner. The applicants are concerned that the Board did not disclose what transpired in its in camera meetings, but again the evidence is that no minutes are kept of such meetings. The applicants say they expected there would be individual reasoning offered by the Board for each school closure which was not forthcoming. However, it is difficult to conclude that the applicants do not know the reason why their school was closed. The viable schools policy set out the criteria for school closures or grade closures, and the concerned quality education committee for Wilcox responded in writing with respect to these criteria. The resolution passed at the Board’s November 16, 2006 meeting identified why the schools were under review. The applicants are rightly disappointed that their views did not prevail, but it is difficult to conclude they do not know the reason why their school was closed. [38] The fifth factor is the nature of the deference accorded to the body. As L’Heureux-Dubé J. in the Baker decision, supra, noted at para. 27: Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] S.C.R. 282, per Gonthier J. The applicants are disappointed that the procedures adopted by the Board did not allow for individual response to every point raised by those persons in opposition to the closure of the school. McLachlin J. as she then was in Re Hardy and Minister of Education (1985), 1985 CanLII 250 (BC SC), 22 D.L.R. (4th) 394 at page 400 quoted with approval Lord Pearson in Pearlberg v. Varty (Inspector of Taxes),[1972] W.L.R. 534 (H.L.) at page 547, wherein he stated: Fairness, however, does not necessarily require plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed. Taking into account the mandate of the Board under the Act with respect to school closures, the consultation process adopted by the Board, and the manner in which it conducted the consultation meetings does not lead to the conclusion the procedure was unfair. DECISION [39] Both with respect to the statutory breach of the 28-day notice period for the meeting to elect school community council members, and the ground of lack of procedural fairness, I am not able to say the applicants have the better argument with respect to either ground. I conclude the applicants have failed to meet the standard of a strong prima facie case. [40] With respect to the criteria of irreparable harm, the harm alleged by the applicants is largely qualitative and subjective one. The applicants are concerned that their children will suffer reduction in the quality of their life by reason of having to spend approximately 40-50 minutes day on the bus, as opposed to walking back and forth to school, and they will not be able to come home for lunch. They allege there will be less opportunity for their children to enjoy extracurricular activities both in Wilcox because the school will be closed, and at Milestone because they will have to be available to take the bus ride home. These concerns have to be looked at in the context that busing is fact of life in rural Saskatchewan. The evidence is that Wilcox has produced many quality students and persons of accomplishment, but so has the rest of rural Saskatchewan. Concerns that change in school or busing will cause stress or psychological damage to the children is speculative at this point. There is no reason to believe that the special relationship between the residents of the Town of Wilcox and Notre Dame College which is referred to in the affidavits will be adversely affected. There is no obvious reason why it should be. am not able to conclude the applicants or their children will suffer irreparable harm if mandatory interlocutory injunction is not issued. [41] The application is dismissed. In the circumstances there will be no order as to costs.
FIAT: The applicants are residents of Wilcox and have children attending the Wilcox school. They seek an interlocutory mandatory injunction preventing the respondent Board of Education from acting upon a resolution that the Wilcox school be closed. HELD: Both with respect to the statutory breach of the 28-day notice period for the meeting to elect school community council members, and the ground of lack of procedural fairness, the Court concluded the applicants failed to meet the standard of a strong prima facie case. 1) A review of the facts and the law suggest that the applicant's submission on the fact that the notice for election of the school community council was 2 days short of the 28 days required by The Education Act does not meet the test of a strong prima facie case. The Act does not state that non-compliance with formalities will result in a nullity. There was no prejudice caused by the non-compliance with the 28-day notice period before the election of members to the school community council. There is no evidence or suggestion that a different school council would have been elected if the extra 2 days notice had been provided. No one complained at the time and the fact the matter is raised now amounts to a collateral attack on that election. The potential consequences of a Court finding of a nullity militate against such a finding. The relevance of the school community council in the closure of a school arises after the decision to close the school has been made. To nullify all of the process and consultation that went into the school closure on this collateral ground would have serious consequences of causing at least one year delay in the efficiencies or improvements in student education which motivated the decision, and result in a loss of time, energy and money expended in the process. 2) Taking into account the mandate of the Board under the Act with respect to school closures, the consultation process adopted by the Board, and the manner in which it conducted the consultation meetings does not lead to the conclusion the procedure was unfair. A review of the five factors identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) does not favour an overly stringent application of the procedural fairness rules in this matter.