The father of a student (“Martin”) applied unsuccessfully for Judicial Review of a decision by the School Board that had banned him from the school premises

Administrative law – Decisions of administrative tribunals – School boards – Powers and duties – Parental rights – Judicial review – Jurisdiction – Standard of review – Reasonableness simpliciter

Martin v. Conseil des Ecoles Catholiques de Langue Francaise du Centre-Est, [2006] O.J. No. 5349, Ontario Superior Court of Justice – Divisional Court, January 16, 2006, P.F. Lalonde, B.J. Manton and A.J. Roy JJ.

Martin’s daughter, Alaine, attended at a school that was part of the Conseil des Ecoles Catholiques de Langue Francaise du Centre-Est (“School Board”). Martin had become a difficult parent whose presence and interaction at the school had surpassed acceptable conduct leading to confrontations between members of the personnel and the principal of the School. Martin was also President of the School Council in the 2004/2005 year when the ban was put into effect.

The Court noted that because of events that had transpired since the Order banning Martin from the School, the Appeal had been rendered moot. Both counsel made submissions that the Court should continue hearing the Appeal because the question of the interaction of the School Board and Martin was continuing and the conflict between the Board’s duty to remove him from a school for safety reasons and the Board’s obligation to leave access to the School to a parent who has a child attending that school, was something that would continue to arise in the future. Interpretation of the provisions of the applicable Act and regulations would guide the School Board and Martin should these difficult problems arise again in future.

In the Fall of 2003, Martin had a conflict with a teacher, because he came to pick up his daughter from school on a day when she was supposed to go with her mother, with whom Martin shared custody of the child. The teacher had to advise the police that Martin left with his daughter.

Other similar incidents occurred including Martin having a disagreement with the School principal about the traditional Christmas raffle. Ultimately, the School Board imposed a ban preventing Martin from ongoing involvement in the School council and from attending at the school. Martin was charged with trespassing as a result of the ban when he attempted to escort his daughter, who was on crutches as a result of an ankle injury at the time, into the school.

The ban was later lifted subject to certain conditions but was re-imposed in April of 2005.

The Court first considered whether it had jurisdiction to review the principal’s decision to ban Martin from the School. The Court held that it had jurisdiction to hear the application under the Judicial Review Procedure Act. The principal’s exercise of power in banning Martin from the School was held to be a statutory power of decision and therefore subject to judicial review. A “statutory power of decision” is a power or right conferred by or under a statute to make a decision deciding or prescribing legal rights, powers, privileges, immunities, duties or liability of any person or party or with the eligibility of a person to receive or continue to receive a benefit or license.

The principal also had the power to ban a parent under the Education Act and the corresponding Access to School Premises Regulations. A principal has the power to require a parent to refrain from entering school property where parents ordinarily have a prima facie right to be on school premises.

The Court then moved on to consider what standard of review should apply. The appropriate standard of review was held to be reasonableness simpliciter. In this instance, there was no privative clause or right of appeal, the principal was held to be an expert in education and school administration such that his decision would be entitled to some deference, but would also depend on whether the Court considered Martin’s right to access his daughter while at school to be a right of constitutional or quasi constitutional importance, because the Court is an expert in balancing individual and human rights.

The Court held that this was not a case raising issues of constitutional or quasi constitutional importance. The issue of accessing one’s child at school was appreciably different than a situation where the parents stood to lose custody of his or her child. The Court held that the liberty and security interests in s.7 of the Charter were not engaged.

The purpose of the legislation (the Education Act) includes protection of students and staff from harmful conduct. A decision under those sections was held to be inherently discretionary and therefore warranted a less searching standard of review.

The question was one of mixed fact and law, namely whether Martin’s presence on school grounds was detrimental to safety or the well being of a person on the premises. Some deference would therefore be warranted under this facet of the Pushpanathan test. The reasonableness simpliciter standard of review was appropriate.

The Court applied this standard of review and found that the decision to ban Martin was reasonable in the circumstances. The principal had the awareness to evaluate the impact of the situation and to act accordingly to try to preserve the ability of the school to provide quality education to its students.

The Affidavits and cross-examinations of the deponents, filed in this action, were held to be part of the record and the Court was not confined to considering the principal’s letter imposing a ban on Martin in analysing the reasonableness of the School Board’s decision.

The application for judicial review was dismissed with costs to the respondent School Board.

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