Administrative law – Teachers – Employment contracts – Appeal process – Ministerial powers – Jurisdiction – Judicial review – Procedural requirements and fairness – Statutory powers – Standard of review – Correctness – Remedies – Mandamus
Coulthard v. Alberta (Minister of Learning),  A.J. No. 1586, Alberta Court of Queen’s Bench, December 2, 2004, Moreau J.
The two Appellants had been employed as a substitute teacher and a teacher under a probationary employment contract. The substitute teacher’s application to the Teacher Roster for the 2004-2005 school year had been declined. The probationary teacher’s employment had ended when his contract was not renewed for the 2003-2004 school year. Both teachers had appealed the decisions in question by forwarding to the Minister of Learning a Notice of Appeal. In both cases, the Minister declined to appoint a Board of Reference to hear the appeal.
The Minister had decided that substitute teachers had no legislated right of appeal to the Board, and also that a probationary teacher had no right to appeal a non-renewal of his contract. The Applicants sought an order in the nature of certiorari quashing the Minister’s decision, as well as an order in the nature of mandamus directing the Minister to refer their respective appeals to the Board of Reference for hearing.
Section 131 of the School Act, R.S.A. 2000, c. S-3 provides for the appointment of a Board of Reference that would hear appeals. The Board or teacher may appeal a matter by sending to the Ministry a Notice of Appeal in accordance with the technical requirements set out in section 133. Section 134 sets out the procedures to be followed when a Notice of Appeal is received by the Minister, while section 136 contains the due process protections applicable to the Board.
The court considered what would be the applicable standard of review in this case by referring to the four factors in the pragmatic and functional approach. The court found that the appropriate standard of review for the Minister’s decision was correctness, based on the following factors:
(a) the Minister’s refusal to refer a teacher’s appeal to the Board is not subject to a privative clause;
(b) the Minister was not in the position of having special expertise on the issue of how section 134(1) of the Act was to be interpreted, relative to the Board or to the court;
(c) the appeal provisions of the Act engage and establish fundamental rights of recourse, representing the “cornerstone” of the teachers’ tenure system; and
(d) the resolution of the issue involves the interpretation of a statutory provision and can thus be characterized as a question of law.
The court ultimately found that section 134(1) of the Act did not permit the Minister to refuse to refer an appeal to the Board. First, the rights of teachers to challenge issues arising from their employment are already restricted to their collective agreement and the appeal provisions of the School Act, with the courts exercising only a supervisory role. Accordingly, section 134(1) should be interpreted in a manner that will promote the integrity of the appeal process. Second, the Board was well equipped to address jurisdictional issues on account of its ability to consider relevant extrinsic evidence, while the Minister was not. Third, the Act equipped the Board with appropriate powers to control its processes and address frivolous appeals. Finally, the purposes and language of the Act did not provide the Minister with a “gatekeeper” function.
In the result, the court found that the Minister had acted outside his jurisdiction in refusing to refer the Notices of Appeal of each of the Applicants to the Board. The decision was quashed and an order was made in the nature of mandamus requiring the Minister to refer the Notices of Appeal to the Board.
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