Administrative law – Schools – Closures – Parental rights – Remedies – Injunctions – Interlocutory injunctions – Availability – Test – Judicial review – Compliance with legislation
Bellamy v. Edmonton Public School Board No. 7,  A.J. No. 526, Alberta Court of Queen’s Bench, May 10, 2005, Hillier J.
The Plaintiffs were parents of students currently attending three schools in Edmonton which the Defendant School Board planned to close. The Board had scheduled a meeting that was to be held in the evening on the day on which these applications were heard by the Court. Any school closures may have been determined at that meeting.
The Plaintiffs had filed a Statement of Claim alleging that the Board had failed to comply with a number of requirements for the closure of any of its schools, as set out in the Closure of Schools Regulation 238/97, including proper notice to affected parties. The Plaintiffs further alleged that unless the closures were enjoined, the Plaintiffs would suffer irreparable harm which could not be compensated in damages.
The Defendant applied for dismissal of the action under Rule 129 of the Alberta Rules of Court, on the basis that an alleged breach of a statutory duty may not form a proper cause of action. The Court relied on the Supreme Court of Canada’s decision in Canada v. Saskatchewan Wheat Pool,  1 S.C.R. 205, for the proposition that a statutory breach in Canada cannot stand alone and needs to be considered in the context of the general law of negligence. The Court held that, to the extent that the Statement of Claim may have been deficient, the Plaintiffs’ counsel had undertaken to amend the claim accordingly and it ought not be struck.
The Defendant argued that the Plaintiffs’ application for an injunction was premature and ought to wait until a decision was made to close the schools. The Court held that even without a crystallized decision to close schools, the Plaintiffs’ application remained focused on enforcing compliance before any closure motion was tabled, whether at that evening’s meeting or subsequently. In that sense, it could not properly be argued that the application was premature.
Additionally, a prohibitive injunction, by its nature, is intended to prohibit certain conduct. Since the meeting was acknowledged to be intended to deal with the issue of school closures, the risks identified by the Plaintiffs needed to be assessed. In the circumstances, consideration of interim relief was not premature.
The Defendant also argued that the Plaintiffs were obligated to await a decision by the Board and then seek judicial review. The Court held that while judicial review may well have been a favoured proceeding, with a full record for review by the Court, there was nothing in law to prevent the Plaintiffs from taking steps to preserve their opportunity to obtain a favourable decision against school closures without facing an onus to satisfy a Court that reversal on judicial review was warranted. There was also no public interest advantage which ought to override the choice which the Plaintiffs had made and to which the Board as a public body must respond.
The Court moved on to consider the tripartite test for injunctive relief as confirmed in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,  1 S.C.R. 110, and RJR MacDonald Inc. v. Canada,  1 S.C.R. 311. The Court considered first whether there was a serious issue to be tried. This was conceded by the Defendant. In the second branch of the test, the Court considered whether the applicant would suffer irreparable harm if the application were refused. The Court rejected the Defendant’s argument that the opportunity for judicial review forecloses irreparable harm, since such a procedure cannot substitute for the opportunity to present a timely, well-informed community response as meets the process set out in the Regulation. Moreover, the harm to the Plaintiffs could not be measured in damages. Finally, the Court considered the balance of convenience. The Court was satisfied that this favoured the Plaintiffs since an injunction would not prevent the Board from convening a meeting that evening, and steps also remained available for the parties to address the dispute on a timely basis before the expiry of the current school year on August 31.
In the result, the court granted the injunction sought by the Plaintiffs, whereby the Defendant Board would not table or debate a motion for closure of the schools in question without further leave of the Court.
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