nan Date: 20010725 Docket: S.H. 171330 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as Potter v. Halifax Regional School Board, 2001 NSSC 106 Between: Jack Potter, Mark Piper, Chris Lavergne, David Paul, Debbie Jennex, David Michels and Brenda Shaw and Halifax Regional School Board nan HEARD BEFORE: The Honourable Justice John M. Davison PLACE HEARD: Halifax, Nova Scotia DATE HEARD: July 12, 2001 DECISION DATE: July 23, 2001 REASONS RELEASED: July 25, 2001 COUNSEL: Brian Casey and Michael Wood, Q.C. for the Applicant John C. MacPherson, Q.C. for the Respondent DAVISON, J.: [1] At meeting held on April 17, 2001 the Halifax Regional School Board (the Board) voted to close Northbrook Elementary School (Northbrook) and Notting Park Elementary School (Notting Park). [2] This is an application advanced by seven applicants for an order pursuant to Civil Procedure Rule 56 in the nature of certiorari to quash the decision of the Board to close the two schools. All seven applicants are parents of children attending Northbrook, and none of the applicants have children attending Notting Park. [3] The Board is responsible for the education of students within the geographic boundaries of the Halifax Regional Municipality and operates 144 schools from Sheet Harbour in the east to Hubbards in the west and to Middle Musquodoboit in the north. There are 14 elected members of the Board who set the policies of the Board and the Chief Executive Officer is the Superintendent of Schools, Mr. David Reid. The senior staff of the Board comprise the Executive Council, which is the strategic and policy formulation body for the Board. There are procedures whereby members of the Executive Council prepare reports which are vetted by the Executive Council prior to being forwarded, on behalf of the Superintendent, to the elected members of the Board for consideration. [4] The delivery of educational services is done on an “area” basis and there is an Assistant Superintendent responsible for each of three areas in Halifax Regional Municipality. [5] Each area is divided into “families of schools” which are grouped on the basis of the sixteen high schools for which the Board is responsible. Elementary and junior high schools which supply students to particular high school are the “feeder” schools, and they form that high school’s “family”. The family of schools relevant to this application is the Dartmouth High School “family” of schools, which includes Notting Park and Northbrook. [6] The facts of this proceeding were advanced by affidavits and at the beginning of the hearing, there was cross examination by counsel for the respondent with respect to some of these affidavits. [7] The affidavit of David Reid states there has been declining enrollment in schools in the area of the former cities of Halifax and Dartmouth and that the declining use of classroom space is costly with respect to the maintenance expense of schools. For these concerns the Board developed strategy known as “A Strategy for Facilities Renewal” which is set out in report referred to as No. 00–09-272. This report is said to have eleven elements, one of which is entitled “Building Assessment”. The Board received building assessment of the schools in the Dartmouth High School family element which partially reads: 11. Review of Schools for Possible Permanent Closure There is significant amount of space throughout the Board (sic)that is essentially vacant. The cost to maintain this space, estimated to be more than $4 million, is direct charge to the classroom. Because of this cost the Board in September 2000, undertook review of schools for the purpose of possible closure pursuant to s. 89(1) of the Education Act S.N.S. 1995-96 c. (the Act). [8] The affiant Jack Potter is the Chair of the Northbrook Advisory Council which was established pursuant to the terms of s. 20 of the Act and is father of child attending Northbrook. He states the Board, in June 1998, developed “Review of Facilities for Permanent Closure Policy” (Closure Policy) and in July 1998 developed “Review of Facilities for Permanent Closure Procedures (Closure Procedures). It was said these policies and procedures were effected pursuant to Ministerial Education Act and Regulations made under s. 145 of the Education Act. major portion of the application relates to alleged breaches of the terms of these policies and procedures. [9] One of the articles in the Closure Policy provided for review in these terms: 4.0 The School Board may approve review of individual schools or review of schools within designated area. 4.1 An area review will address the accommodation of the student population in neighboring schools within the designated area or the redistribution of the area student population into fewer buildings within the designated area. It was stated by Mr. Reid in his affidavit review of the facilities for possible permanent closure should be undertaken on an “area” or “families of schools” basis and that the Dartmouth High School family should be one of the families under review. The schools in that family had “lower occupancy rate and higher incidence of unutilized classrooms than most other families of schools.” [10] Following the review report was prepared and presented to the Board on September 5, 2000. This could be termed the Superintendent’s School Closure Report and its purpose was said to be “to request approval by the Board of the list of areas of schools for possible permanent closure.” One of the areas included was the Dartmouth High School family of schools. At meeting held on September 26, 2000 the Board approved review during the 2000-2001 school year of families of schools including the Dartmouth High School family. [11] Copies of the Closure Policy and Closure Procedures were forwarded to the Minister of Education on October 13, 2000. [12] At meeting of the Board on November 14, 1999 process to review, develop and implement policy was approved in accordance with the terms outlined in report entitled Board Report 99-11, #129 which was dated November 8, 1999 and which contained number of guiding principles for policy development including: The responsibility of staff, through the Superintendent, is to provide the Board with reasonable advice respecting the establishment of policy. Subsequent to policy decisions of the Board, it is the responsibility of staff, under the direction of the Superintendent, to develop procedures in support of the policy and to implement the Board’s decisions with faithful adherence to both the spirit and letter of the policies as they are approved [13] Staff of the Board prepared Report 00-10-278 which was entitled Reduction Targets for Schools Within Designated Areas Identified for Permanent Closure and the report was dated October 4, 2000. It identified reduction target for the Dartmouth High School and Prince Arthur families of schools of 76 classrooms. The Board approved of this reduction by passing motion to that effect at the meeting of the Board on November 14, 2001. [14] Concerns were expressed at the meeting with respect to the schedule of public meetings, and they were set for January 10, 2001 and January 24, 2001. [15] The Board considered all of the schools in the area were under review to determine if any were subject to closure and steps were taken to create School Review Committees in accordance with the Closure Policies and Closure Procedures. Closure Policy 6.1 reads: 6.1 The Board will consider all information pertaining to the possible permanent closure or consolidation of schools, including the report of the School Review Committee, staff reports, and information received at public meetings in reaching its final decision. [16] Under s. 20 of the Act there is provision for the school boards to establish school advisory council for public schools. Closure Procedure Article 3.4 reads: Where the Board has identified designated area of schools for possible permanent closure, the Superintendent will invite the School Advisory Councils from each of the schools within the designated area to appoint one (1) parent representative to the Committee, who is not an employee of the Board, to act on behalf of the School Advisory Council or will otherwise appoint members to the Committee. [17] Mr. Reid, the superintendent, wrote to the chairperson of each School Advisory Council requesting them to appoint member to the School Review Committee. The first meeting of the School Review Committee was held on October 30, 2000, and Jack Potter, one of the applicants herein, was appointed. At the meeting members of the School Review Committee were provided with an information package which included the Superintendent’s School Closure Report which stated on p. 2: The Review Committee would base their recommendations on review of all schools within the designated area. [18] The School Review Committee for the Dartmouth High School family of schools held eleven meetings when various options were considered to achieve the appropriate classroom reduction target. number of the proposals considered closure of Notting Park and Northbrook. [19] On January 10, 2001 the School Review Committee held public meeting and there were number of recommendations including the closing of Notting Park with its students to be transferred to Harbor View School and to Northbrook. As part of this recommendation, there was the suggestion to transfer students from Northbrook to two other schools. [20] second public meeting was held on January 24, 2001, and at that meeting the same recommendation as that which occurred at the January 10, 2001 meeting was advanced. [21] The recommendation was included in the final report of the School Review Committee to the Board. The report emanated from the final meeting of the School Review Committee on February 5, 2001. The report read in part as follows: Notting Park is surrounded by two elementary schools which are in better structural condition: Specifically Harbour View and Northbrook. Notting Park students are within walking distance of both of these schools. The committee has recommended that approximately 87 students be transferred from Notting Park to Harbour View, 30 students be transferred from Notting Park to Bicentennial, and the remaining 79 students be transferred from Notting Park to Northbrook. In order to create space at Northbrook the boundaries will be changed to move 33 students from Northbrook to Crichton Park. The Committee also recommends that the 32 out-of-boundary students at Northbrook return to their home schools (excluding out-of-boundary students from Notting Park). [22] On February 27, 2001 the Board received report from the staff as well as reports from the School Review Committee. It was determined that there be arranged public meetings at number of schools including Notting Park and Northbrook. [23] Before the meeting on February 27, 2001 all schools within the Dartmouth High family of schools were being considered for possible permanent closure. The Board, at this meeting, provided “short list” of schools more directly affected by the decisions of school closure, and persons associated with these schools were given additional opportunities to provide input to the Board with respect to closure. public meeting was held at Notting Park on March 27, 2001 and at Northbrook on March 29, 2001. [24] The Board held special meeting on April 17, 2001 to consider closure. Monday, April 16, 2001 was Easter Monday. At that meeting the Board voted in to ratio to close Notting Park and in to ratio to close Northbrook. [25] The issues raised by counsel for the parties are: (1) The respondent raises the issue whether the applicants have standing to seek certiorari to quash the decision of the Board to close Notting Park. (2) The applicants raise the issue the duty of fairness has been breached when member of the Board, who failed to attend relevant meetings, voted for closure of the two schools. (3) Did the Board commit breaches of procedure of such nature as to cause their decisions to be invalid? RELEVANT LEGISLATION [26] Sections of the Education Act S.N.S. 1995-96 c. to which counsel referred read as follows: Permanent closure of schools Establishment of councils 20 (1) school board shall establish school advisory council for public school where (a) eight or more parents of students attending the public school; (b) home and school association, parent-teacher association or similar organization for the public school; or (c) the principal of the public school, requests, by petition in writing to the school board, that school advisory council be established for the school. 89 (1) school board may, with the approval of the Minister, make by‑law governing the permanent closure of public school within its jurisdiction. Consistency of by‑law with regulations (2) by‑law made pursuant to subsection (1) shall be consistent with the regulations made by the Minister pursuant to this Act respecting the permanent closure of public schools. Manner of closure (3) Upon identification, in accordance with the regulations made by the Minister, of public school to be considered for permanent closing, the school board may permanently close the school within the school district in accordance with by‑law made pursuant to subsection (1) or, where there is no such by‑law, in accordance with the regulations made by the Minister pursuant to this Act respecting the permanent closure of public schools. 1995‑96, c. 1, s. 89. Certain by‑law making powers 67 With the approval of the Minister, school board may make by‑laws for the conduct and operation of public school and the exercise of the powers of the school board. 1995‑96, c. 1, s. 67. Regulations by Minister 145 (1) The Minister may make regulations nan (m) prescribing the manner in which school board is to identify public schools to be considered for permanent closing; (n) governing the permanent closing of public school by school board where the school board does not have by‑law governing such closing; [27] The relevant regulations made under s. 145 read as follows: 15 (1) Every school board shall prepare and adhere to written statement of the policies and procedures to be used by the school board and its staff in identifying schools that will be considered for permanent closing, and shall file the written statement with the Minister. (2) The procedures established pursuant to subsection (1) shall provide for consideration of (a) enrollment patterns and projections; (b) general population patterns and projections; (c) any information available to the school board regarding future developments in the community that would influence the need to consider the closing of school; and (d) the effects that closing school would have on the educational and social opportunities available to the students in that school and in other schools operated by the school board. 16 (1) With respect to the permanent closing of schools, every school board shall either follow the procedures described in Sections 17 to 23 or prepare and adhere to written statement of policies and procedures that provides for (a) public notification of the board's intention to consider closing school; (b) public participation in the process of reaching decision on permanent closing of school; (c) public access to all information that the school board uses to make its decision on the permanent closing of school and to the report described in clause (f); (d) consideration of all foreseeable educational and financial consequences and the effects on the community of the permanent closing of the school; (e) sufficient time for the actions required under clauses (a) to (d) to be satisfactorily completed; and (f) report that (i) shall be presented to the school board no later than December 31 in the calendar year in which school has been permanently closed, (ii) shall be provided by the principal or principals responsible for the school or schools to which the students from the permanently closed school have been transferred, and (iii) describes the educational and social progress of the transferred students and their adjustment to their new school or schools. (2) Any statement of policies and procedures prepared by school board pursuant to sub section (1) shall be filed with the Minister and shall at least meet the requirements described in Sections 17 to 23 with respect to provision of information to the public, participation by the public in decisions on school closings, the time allowed for public participation and study, and consideration of factors related to the closing of school. 17 (1) When school board determines through the procedures established pursuant to Section 15 that one or more schools should be considered for permanent closing, public notification of its intention to consider closing school shall be published in newspaper having general circulation in the area served by the school no later than October 31 in the year immediately preceding the calendar year in which the school may be closed, and the advertisement conveying the public notice shall also give notice of the time, location, and purpose of public meeting at which representatives of the community served by the school will be elected to the study committee pursuant to subsection (4). (2) school board shall establish study committee to be comprised as outlined in subsection (3) or (4). (3) school board that wishes to establish separate study committee for each school being considered for closing may, if (a) school advisory council has been established for the school being considered for closing; and (b) the school advisory council agrees to be appointed as part of the study committee, establish study committee for such purpose comprised of the following members: (i) the school advisory council; (ii) school board representatives, other than the teachers and support staff of the school proposed to be closed, the total number of members appointed pursuant to this clause to be no greater than the total number of members of the school advisory council; (iii) chair chosen in the manner set out in subsection (7) (4) Where school board wishes to establish separate study committee for each school being considered for closing, but the conditions in clauses (3)(a) or (b) are not met, or the school board wishes to establish study committee with responsibility for the study of two or more school closings, the school board may establish study committee for such purposes with the following members: (a) representatives of the communities served by the schools being considered for closing, elected pursuant to subsection (5), with at least one representative of the area served by each of the schools and total of not fewer than three community representatives, whatever the number of schools being considered; (b) one representative of the students enrolled in each school that is being considered for closing, if the school teaches any or all of grades to 12; (c) persons appointed by the school board, who may be members of the school board or of its professional staff and any other persons the school board wishes to appoint, with the total number of members appointed pursuant to this clause being no greater than the total number of representatives appointed pursuant to clauses (a) and (b); and (d) chair chosen in the manner set out in subsection (7). (5) The community representatives of each school being considered for closing, described in clause (4)(a), shall be elected by residents of the areas served by that school at public meeting announced through the advertisement described in subsection (1) and chaired by the principal of the school or another person, as determined by the school board. 18 (1) study committee shall hold its first meeting no later than November 30 immediately preceding the calendar year in which the proposed school closings would occur. (2) study committee shall examine and report to the school board on all matters the study committee considers relevant to the possible closing of the schools, including (a) the effects the school closings would have on the educational progress of students, school board finances, the transportation, maintenance and facility requirements of the school board, the social development of the students in both the schools which may be closed and the receiving schools, student co‑curricular activities, student government finances, lunchroom facilities, and traffic at the schools to which students may be transferred; and (b) the educational and financial consequences for the school district of keeping the school or schools open. (3) Prior to preparing its report, study committee shall invite the public to submit written comments on the possible closings and shall also conduct at least one public meeting at which comments can be presented orally by any person, pursuant to procedures established by the study committee. (4) Notice of the invitation for comments and the holding of the public meeting pursuant to subsection (3) shall be given through an advertisement which appears in newspaper having general circulation in the areas served by the schools being considered for closing, and shall be published at least three times, with the first notice appearing at least three weeks before the date of the public meeting. (5) study committee shall submit its report and recommendations to the school board no later than February 15 of the calendar year in which the proposed school closings would occur. (6) The source of all statistics or other information in the report of the study committee shall be clearly identified. 19 Upon receipt of the report of study committee, school board shall ensure public access to the report by providing copies for examination at school board offices or other locations convenient for the public and by providing reasonable number of copies that can be obtained by residents of the school district either without charge or at price no greater than the cost of printing the report. 20 (1) Following the public release of study committee report pursuant to Section 19, school board shall invite residents of the school district to submit written comments on the report and shall also conduct public meeting on the report at which comments may be presented orally to the school board by any person, pursuant to procedures established by the school board. (2) Notice of the invitation for comments and the holding of the public meeting pursuant to subsection (1) shall be given through an advertisement which appears in newspaper having general circulation in the areas served by the schools being considered for closing and shall be published at least three times, with the first notice appearing at least three weeks before the date of the public meeting. 21 (1) school board shall make its final decisions regarding any permanent closings of schools no later than April 15 immediately preceding the school year in which the permanent closings will take place. [28] Counsel also referred to and relied upon certain delegated legislation in the form of the policy and the procedure developed by the Board in June 1998 and July 1998. There were amendments to these documents in October 2000. [29] The respondent has raised an issue of standing with respect to the application to quash the decision of the Board to close Notting Park. [30] In Finlay v. Canada (Minister of Finance), 1986 CanLII (SCC), [1986] S.C.R. 607 the Supreme Court, on the facts before it, found the party did not have sufficiently direct personal interest in the issue before the court to bring him within the general requirement for standing to sue on an injunction to challenge the exercise of statutory power. On the evidence before me make the same finding in this case. It might be inferred from the documents the enrollment of students in Northbrook would increase, but there is no evidence of the extent of any adverse effect on the students in view of the existing vacancies at Northbrook. [31] would add that the applicant in the Finlay case obtained standing for different reason the judicial discretion to find he had public interest standing. There is no basis in this proceeding to exercise such discretion. [32] In the Finlay case LeDain J. set out the concerns about expanding the public interest standing of an individual in proceeding. He said at p. 631: ... The traditional judicial concerns about the expansion of public interest standing may be summarized as follows: the concern about the allocation of scarce judicial resources and the need to screen out the mere busybody; the concern that in the determination of issues the courts should have the benefit of the contending points of view of those most directly affected by them; and the concern about the proper role of the courts and their constitutional relationship to the other branches of government. [33] The seven applicants have children at Northbrook and no parent of child attending Notting Park is an applicant to this proceeding. It is the position of the Board that none of the applicants are directly affected by the closure of Notting Park. [34] Mr. Casey for the applicants says that the test for standing is whether person is especially affected by the complaint of closure and is different from member of the general public. [35] Mr. Casey refers to report of the Review Committee which is exhibit two of the affidavit of Jack Potter. The report is dated December 12, 2000 and includes document entitled “Distribution Scenario Examined by the Committee”. This document speaks of closing Notting Park and states in part: Northbrook P-6 actual enrollment 206, enrollment guideline 243 Send 32 out-to-boundary students back to their home schools Transfer 33 students from Northbrook to Crichton Park Transfer in 79 students from Notting Park New total for Northbrook 220 This transfer of students, say the applicants, renders them directly affected by the closure of Notting Park. [36] The issue of standing is dealt with at length in Brown and Evans Judicial Review of Administrative Action in Canada where at pp. 4-16 it is stated: At common law person will have standing to seek remedy in proceedings for judicial review if he or she is an “aggrieved person,” an “affected person,” or someone who is “exceptionally prejudiced” by the impugned administrative action. The requirements of any of these expressions of the common law test are twofold: first, an identification of the interest and, second, an assessment of its remoteness. [37] The authors go on to set out various other requirements for success in an application for standing some of which are, in my view, relevant to the issue before me. [38] There is the requirement of “a serious issue”. At p. 4-43 it is stated: Because of the limits to judicial and other public resources, where private rights are not at stake, courts have required that the issue in dispute not only be justiciable, but also be “serious.” This concept has two aspects to it as well. First, the judicial review proceeding must have some prospect of succeeding on the merits, requirement that is normally readily met, and it must not be premature. Second, the issue must also be “serious” in the sense that it must be of some public importance. There is also the requirement of “no other route” and there appears at p. 4-44: This requirement relates to the unavailability of effective alternative remedies and to lack of other potential applicants who could qualify under the general rule rather than pursuant to the public interest exception. ... The second aspect attempts to contain judicial power to its proper domain, namely the adjudication of the legal rights of disputing parties. Furthermore, since public interest litigants often ask courts to rule on question in the abstract, deferring any adjudication until there is someone who has been adversely affected tends to ensure that the issue is determined in the context of specific facts. Accordingly, public interest standing will not normally be granted if it is realistic to expect that the issue in dispute will be determined in another forum or in different proceeding, at the instance of person who would have standing. where there was no practical possibility that the issue of legality would be raised in other proceedings, public interest standing has been granted. (Emphasis added.) [39] With respect to this requirement, the parents of the children attending Notting Park would be what is described as “better plaintiffs” with reasonable prospect they could emerge. There was no evidence why those persons have not joined in this application. They are certainly directly affected by closure of Notting Park and, in the absence of good reason, do not consider it appropriate to proceed in what is less effective way to bring this issue before the court. [40] In these circumstances I am of the view that there has not been established the applicants have been directly affected by the closure of Notting Park. They say the recommendation from the School Review Committee, that 79 students would be transferred from Notting Park to Northbrook, permits it to be said the applicants are aggrieved persons. It seems to me an assessment that the applicants are “persons aggrieved” is remote when there is nothing before me but the evidence of only recommendation that closure of Notting Park would induce the introduction of more students into school which is in the family of schools which according to the report setting out “A Strategy for Facilities Renewal” have “a significant amount of space ... that is essentially vacant.” It could be inferred Northbrook meets this description when the respondent seeks to close it. [41] agree with Mr. MacPherson’s submission that to grant standing to the applicants in relation to the closure of Notting Park could elicit submissions other schools were effected and elicit possible “chain reaction” with the parents of children in other schools advancing claims they were affected and that they have “special interest” in the closure of Notting Park which would be result adverse to efficient use of judicial resources. [42] For all of these reasons it is my view the applicants should not have standing and an order should issue dismissing the application for an order in the nature of certiorari to quash the decision to close Notting Park. THE ABSENCE OF BOARD MEMBER FROM HEARING [43] Counsel for the applicants advances, as his primary submission, the significance of Board member (I will refer to this person in these reasons as “the Board member”) missing several meetings and then voting on April 17, 2000 in favour of the closure of Northbrook and Notting Park. As stated, the vote for closure of Northbrook was seven for closure and six against closure. The Board member’s vote was telling in that it determined the school was to be closed. [44] It is counsel’s submission that the failure of the Board member to disqualify himself during the vote invalidates the result of the vote. This circumstance by itself, it is argued, is sufficient for an order to be issued quashing the decision of the Board as it relates to both Northbrook and Notting Park. In view of my finding on standing there is no need to deal with the argument with respect to Notting Park. [45] In March 2000 the Board held seven hearings at different schools with respect to closure of schools. These meetings generally lasted two and half to three hours. Parents made submissions orally on the issue and the meetings were tape recorded. The transcript of the hearings contains 691 pages. The Board member did not attend any of these meetings. [46] After the last meeting, which was held at Northbrook, the Board held debate of the Committee of the Whole Board on April 10, 2000. There was no transcript of that debate. One could infer from the close vote at the meeting on April 17, 2001 that this debate would be informative. The Board member did not attend. [47] An affidavit of the Board member was filed, and he was not cross examined with respect to that which was said in the affidavit. [48] The Board member worked with the Engineering and Maintenance Department of the Halifax City School Board for over 24 years. He is long standing member of school boards. He states he attended the meeting of the Board on September 26, 2000 and refers to Report No. 00-09-272 which is entitled Strategy for Facilities Renewal dated April 26, 2000 and Report No. 00-09-266 Report to the Board on Schools for Possible Permanent Closure. He states in his affidavit that “as is my custom, had read and reviewed those reports prior to the Board Meeting of September 26, 2000" and says he was “aware of the activities” of the School Review Committee. He was present at meeting of the Committee of the Whole on February 13, 2001 and mentions reviewing reports and having input from staff. He was present at Board Meeting on February 27, 2001. [49] The Board member was on holidays between March 21, 2001 and April 11, 2001 and missed meetings during this time including the one on March 27, 2001 at Notting Park and on November 29, 2001 at Northbrook. He was given transcripts of the discussions during these meetings which he “reviewed” prior to the April 17, 2001 meeting. He specifically said he “reviewed” these transcripts which would consist of substantial number of pages. He did not say he “read and reviewed” the transcripts which was the term used when he referred in his affidavit to reports prior to the meeting of September 26, 2000 or “review and consider” as he stated he did with report of the School Review Committee in February 2000. [50] am unable to determine what the affiant did when he said he “reviewed” the transcripts of the two meetings in March 2001. He did not say he read them. Counsel for the respondent takes the position there was burden on the applicants to cross examine the Board member on the affidavit if they had concern as to the meaning of the word. With respect, it would seem to me that when there were important meetings missed by the Board member and where oral hearings were considered important by the legislators and the Board, the onus should rest with the respondent to show the Board member had appropriate first hand knowledge of the evidence and submissions of the applicants. This is particularly true when the decision to close Northbrook did not occur until February 27, 2001. [51] In Regina v. Committee on Works of Halifax City Council, Ex Parte Johnston (1962), 1962 CanLII 488 (NS CA), 34 D.L.R. (2d) 45 where the applicant was the owner of real property said to be in state of disrepair to the extent it was not suitable for human habitation, the Commissioner of Works for the City of Halifax reported to the Committee on Works that the dwelling be demolished. The Committee held five succeeding hearings and authorized destruction and the applicant applied for writ of certiorari which was granted. The complaint was that at the final hearing eight councillors voted, but only four of them were present for all of the previous hearings. [52] All five of the judges sitting en banco voted in favour of an order for certiorari. Chief Justice Ilsley stated at p. 47: ... am satisfied that the action of the Committee in considering whether they should make an order for the removal or destruction of the building and in deciding that question was one in which it was the duty of the Committee to act judicially and is reviewable by this court in certiorari proceedings. “The power of obtaining writ of certiorari is not limited to judicial acts or orders in strict sense, that is to say, acts or orders of Court of law sitting in judicial capacity. It extends to the acts and orders of competent authority which has power to impose liability or to give decision which determines the rights or property of the affected parties” ... [53] There was no reference to duty of fairness, recent term which, like the notion of the rule of natural justice, has been enhanced by s. of the Charter of Rights and Freedoms particularly as they relate to fair hearings. Brown and Evans in Judicial Review of Administrative Action in Canada, at p. 7-1 states: Administrative action is subject to judicial review on the ground of procedural impropriety. In particular, many public decision-makers are under legal duty to afford to interested persons fair opportunity to participate in the decision-making process before any action is taken that is detrimental to their interests. These participatory rights may be found under different legal labels. At common law, the notions of “the rules of natural justice” and, more recently, “the duty of fairness,” are frequently used to denote the several rules and principles that provide those participatory rights. As well, of course, statutes may require an opportunity for “hearing” or impose duty to “consult” before particular statutory power is exercised. And at the constitutional level, the principles of fundamental justice referred to in section of the Canadian Charter of Rights and Freedoms include the procedural protection of fair hearing before governmental body exercises power to deprive person of “the right to life, liberty and security of the person.” The right to fair opportunity to participate arises in number of diverse decision-making contexts. For example, the duty of fairness applies to decision-making powers in such different contexts as: school board’s dismissal of person holding public office at the pleasure of the employer; ... (Emphasis added) [54] Justice Bissett, in the Johnston case, said at p. 67: am therefore of the opinion that ground of the applicant's submission is well taken and there was denial of natural justice in that four members of the Committee voted for demolition who had not heard all the material facts and arguments which had been advanced for and against such course and this left the Committee with an equality of votes on each side of qualified members, and the circulation of the minutes did not give those members of the Committee who had been absent from some of the important meetings the necessary first‑hand knowledge of all the evidence and the conduct of the proceedings to allow them to consider and discuss that evidence with the others in the way they should have been able to do. See Verchere, J., in Hughes v. Seafarers' International Union, 1961 CanLII 390 (BC SC), 31 D.L.R. (2d) 441. Justice MacDonald stated at p. 57: In my view there is an alternative ground for holding that the resolution and order herein should be set aside. That ground is that where one or more members of an adjudicatory body (such as City Council) has failed to attend meetings at which important aspects of matter involved in the adjudication have been presented or discussed, he thereupon becomes disqualified from participating in the final deliberations of that body or in the decision of that body upon that matter; and that if he does so participate therein, the decision of that body is vitiated thereby and must be set aside. [55] In Mehr v. Law Society of Upper Canada, 1955 CanLII (SCC), [1955] S.C.R. 344 there was an application for an order to restore the name of solicitor to the roll after he was disbarred. There was reference to the words of Cartwright, J., at pp. 294-295: The other matter to which wish to refer is as follows. At the hearing before the Discipline Committee on Sept. 18, six members were present. At the hearing on Oct. the same six members and two additional members were present. At the hearing on Nov. 19 the eight members who had been present on Oct. were present and one additional member was present. There is nothing to indicate that all nine of these members did not take part in deciding as to the report which the Committee should make to Convocation. While it is not necessary to express any final opinion as to whether such course would render the report invalid am much impressed by the reasoning of Lord Hanworth and Romer J. in Rex v. Huntingdon Confirming Authority [1929] K.B. 698.]. At page 714 Lord Hanworth said:‑‑ One more point must deal with, and that is the question of the justices who had not sat when evidence was taken on April 25, but who appeared at the meeting of May 16. We think that the confirming authority ought to be composed in the same way on both occasions: that new justices who have not heard the evidence given ought not to attend. It is quite possible that all the justices who heard the case and the evidence on April 25 may not be able to attend on any further hearing, but however that may be, those justices who did hear the case must not be joined by other justices who had not heard the case for the purpose of reaching decision, on this question of confirmation. And at page 717 Romer J. who agreed with Lord Hanworth added:‑‑ Further, would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25. There was division of opinion. The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown. [56] Mr. MacPherson, for the respondent, argues the Board was not an adjudicative body and does not make quasi judicial decisions such as that done in the Johnston case. He submits that cases note that school boards are managers of the education system and involved in policy functions when they make decisions to close schools. [57] Such characterization has become less important especially since Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners, 1978 CanLII 24 (SCC), [1979] S.C.R. 311. [58] In Principles of Administrative Law (Third edition) by Jones deVillars, there is stated at p. 81: ... For long time, the principles of natural justice were thought to be applicable only to the exercise of judicial (or quasi-judicial) power, and not to the enactment of delegated legislation or to the exercise of merely administrative action. Similarly, the availability of prerogative remedies of certiorari and prohibition was long restricted to correct procedural errors involved in the exercise of judicial (or quasi-judicial) powers, but not legislative or merely administrative ones. So the functional characterization of delegated powers has been extremely important in Administrative Law. In recent years, the necessity to characterize the nature of delegated functions has become considerably less important. In particular, the development of the general duty to be fair whether comprised within the principles of natural justice, or in addition to them has removed the distinction between judicial (or quasi-judicial) functions and merely administrative ones for the purpose of applying rules of fair procedure, as well as for determining the availability of certiorari and prohibition. This is welcome advance ... Again at p. 85: The phrase “quasi-judicial” refers to discretionary powers which are essentially judicial in nature, but which are exercised by officials other than judges in their courtrooms. Historically, quasi-judicial powers have been subject to procedures which more or less resemble the formal ones used in litigation. As one moves further away from the judicial paradigm, it becomes difficult to determine when the discretionary power can more properly be described as “merely administrative” or “ministerial”. Nevertheless, the distinction was formerly very important, because the procedural principles of natural justice were thought not to apply to the exercise of “merely administrative” discretionary powers. In recent years, however, the development of the “duty to be fair” when exercising merely administrative powers has largely obliterated the importance of the distinction between them and quasi-judicial powers. (emphasis added) [59] The authors discuss the development of the duty to be fair in administrative matters with references to cases such as McCarthy v. Calgary Roman Catholic Separate School District No. (1979), 1979 ABCA 301 (CanLII), 145 D.L.R. (3d) 765, where the Alberta Court of Appeal referring to the Nicholson case recognized this right of citizen to fairness in administrative procedure and that certiorari could establish that right. Several cases establish the right which was described by Justice LeDain in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] S.C.R. 643, as: This court has affirmed that there is, as general common law principle, duty of procedural fairness lying on every public authority making an administrative decision which is not of legislative nature and which affects the rights, privileges or interests of an individual. [60] The authors conclude at p. 215: Instead of characterizing functions as judicial or executive, the courts must now concentrate squarely on the real question which has always been before them: Was the procedure used in this case fair in all the circumstances? The circumstances which determine whether the procedure was fair include: (i) the nature of the decision; (ii) the relationship existing between that body and the individual; (iii) the effect of that decision on the individual’s rights. [61] The Board and the legislature recognized the need and the appropriateness of having input from the public on any decision for closure of schools. Examination of regulations advanced by the Minister and the Closure Policy and Closure Procedures determined by the Board set out detailed requirements to protect the rights of the public to be informed and to be able to discuss and advance submissions on the merits and demerits of closure. [62] Reviewing the regulations set out in these reasons it is noted as follows: (1) Regulation 16(1) requires public notification of board’s intention to close, together with public participation in the process and public access to information. There is requirement that there be timely process involving the public; (2) Regulation 17 (1) requires public notification of the intention to close by advertisement in newspaper; (3) Regulation 18 sets out procedures for the study committee and 18 (3) requires, before report, an invitation to the public to submit written comments and to permit oral presentation at public meeting; (4) Section 19 ensures public access to any report of the subcommittee; (5) Section 20 calls for another public meeting, after report, with the invitation to the public to submit oral presentations. [63] It is clear that great care was effected to involve the public which includes parents in every step of the process. It is also clear the public meetings were considered an important feature, and with matters in this proceeding, there were several meetings where the public had the opportunity to address the issues. [64] By reason of his absence from significant meetings, the Board member did not have the advantage of being exposed to the oral submissions and comments of those assembled at the meetings. It is not known the extent to which he read or studied the transcripts of some of those meetings, but even the written word is no substitute for oral submissions, and this difference is recognized in the terms of Regulation 18 (3) and 20 1). [65] The importance of oral hearings was recognized in some cases by Lord Denning, in Patt v. Greyhound Racing Association Limited, [1969] Q.B. 125, with respect to “matters affecting reputation or livelihood or serious import ... fairness demands an oral hearing.” [66] The question of whether an oral hearing was required under the Canadian Bill of Rights and under the Charter of Rights and Freedoms was examined by the Supreme Court of Canada in Singh v. Canada (Minister of Employment Immigration, 1985 CanLII 65 (SCC), [1985] S.C.R. 177. Justice Beetz quoted Inuit Tapirisat of Canada v. Canada (Attorney General), 1980 CanLII 21 (SCC), [1980] S.C.R. 735 at 747: ... The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject‑matter that is being dealt with, and so forth. Justice Wilson pointed out written submissions will not be satisfactory when there is serious issue of credibility. [67] The circumstances of this case involve legislation emphasizing public access to information and public hearings involving what is stipulated as written submissions and oral presentation. We have issues of credibility. Persons in the position of the applicants may have genuine concerns about the decisions of the Board with respect to their influence on the education of their children and the desire to maintain community standards. On the other hand, persons in the position of the applicants may only be involved in the decisions of the Board because those decisions affect their personal convenience, or their involvement may be based on emotional considerations irrelevant to the problems facing the Board. How does Board member determine these motives short of listening to the public’s representations? [68] Furthermore, in the light of the terms of the regulations, what did the Board member do to adequately inform himself of the concerns of the public? [69] Finally it is important to note the Board member’s vote on April 17, 2001 carried the motion to close Northbrook. He should not have voted. [70] By permitting the Board member to vote, the Board breached its general duty to act fairly. The application to quash the decision to close Northbrook is allowed. BREACH OF REGULATIONS [71] The applicants submit that the Board breached regulations enacted pursuant to the terms of the Act. The respondent takes issue with most of the allegations of breach. It is said the applicants are advancing “technical breaches”. [72] Initially, in his oral submissions, counsel for the applicant states that there not only was breach of the common law duty of fairness, but the court need not concern itself with such breach and the applicants do not have the burden of showing that breach in view of the “serious breaches” of the terms of the regulations, and the court is being asked to “enforce the law of Nova Scotia in the form of regulations”. Counsel for the applicant took the position that the court should invalidate the decision of the Board if it did not comply fully with the regulations. [73] The respondent says the issue is whether the applicants have been treated fairly. If there were breaches of regulations, clearance policy or clearance procedure, there was substantial compliance with the process. It is said there was evidence of ample disclosure of information to the applicants and substantial opportunity for submission by the applicants on the matters in issue. [74] In view of my findings on the issue of standing and the breach of the duty of fairness in the vote of the Board member, there is no need to consider the merits of the submissions on this issue, but to avoid misunderstanding, believe it appropriate to advance some general comments. [75] Reference was made to Blore et al. v. Board of Education of Halifax District (1991), 1991 CanLII 4323 (NS SC), 105 N.S.R. (2d) 414, and refer to the words of Justice Nunn of the Supreme Court of Nova Scotia at p. 419: Counsel for the applicants raised issues of inadequacy of notice and opportunity to be heard, failure to disclose some facts, and the delegation of decision making. In my view, each is without merit. While undoubtedly there are cases which have discussed or decided on issues such as these, one has to consider the whole context of administrative functioning and judicial review. It is not the function or intention of the courts to put administrative functioning into straight jacket. Administrative bodies must be as free to function as they possibly can within, of course, the bounds of statutory provisions applicable to them, and within the bounds of any duty of fairness that might exist. Nunn J. also states: It is not perfect world and perhaps it never will be but administrative boards such as the Board here must be permitted to manage the affairs assigned to them with as little intrusion of the courts as possible and only where necessary to protect or assure other rights which must be considered. agree with these comments. [76] similar approach was expressed by Justice Woolridge in Wall v. Corner Brook/Deer Lake/St. Barbe School District No. 3, [1998] N.J. No. 224 (Nfld. Supreme Court) when he stated at para. 73: The governance of the Education system by the school boards is intended to be unimpeded except where there is requirement for compliance with express requirements of the statute. [77] The Board has duty to act fairly, and that is the issue in this proceeding. The court should not be asked, as the applicants ask, to police the Board to determine if they breached regulation, closure policy or closure procedure. Such breaches would be relevant in this proceeding only if they impaired the duty of the Board to act in fair manner. [78] As have determined, there was breach of the duty of fairness when the Board member voted on April 17, 2001 and as have determined, the applicants are not of good standing on the issue involving the closure of Notting Park. There is no need to decide on the argument there was breach of the duty of fairness because of breaches of the regulations. [79] An order will issue in the nature of certiorari quashing the decision of the Board to close Northbrook. seek written submissions on the question of costs.
The applicants applied for an order in the nature of certiorari to quash the decision of the school board to close two schools. The applicants were parents of children who attended one of the two closed schools., application allowed in part; certiorari granted in respect of the decision to close the school which the applicants' children attended; the applicants had no standing to challenge the closure of the second school as they were not directly affected by its closure. The School Board breached its general duty to act fairly in allowing a Board member to vote when he had not attended the public meetings on the issue. The Board did not meet the onus on it to show that the member had appropriate firsthand knowledge of the evidence and submission of the applicants.