The application by a group of parents with children attending at Wilcox School for an interlocutory mandatory injuction preventing and restraining the Board of Education (the “Board”) from acting upon a resolution to close the Wilcox Public School was dismissed where the Court found that the Applicants had not established a strong prima facie case

27. October 2007 0

Administrative law – Decisions of administrative tribunals – School boards – Schools – Closures – Parental rights – Judicial review – Procedural requirements and fairness – Remedies – Injunctions

Metz v. Saskatchewan Board of Education of the Prairie Valley School Division No. 208, [2007] S.J. No. 454, Saskatchewan Court of Queen’s Bench, July 26, 2007, R.D. Laing C.J.Q.B.

On May 7, 2007, the Board passed a resolution that the Wilcox Public School be closed effective August 15, 2007. A group of parents sought an interlocutory mandatory injunction preventing the Board from closing the school on grounds which included the failure of the Board to provide adequate notice of an election for the Wilcox School Community Council and a failure by the Board to comply with the requirements of procedural fairness in the manner in which it proceeded to pass a resolution closing the school.

The Board had been created effective January 1, 2006 as a result of a process established by the Government of Saskatchewan to restructure school divisions. Through the process, 79 School Divisions became 28 School Divisions. In 2006, the Board prepared a document entitled “Viable Schools Policy”. This Policy indicated the need to maintain viable schools and classrooms which may require, from time to time, the consideration of discontinuing one or more grades offered in schools or closing schools. On November 16, 2006, the Board served notice it was placing 11 schools, including Wilcox Public School, under review. In response, Wilcox’s residents organized a Committee to argue against the possible closure of its school and a public consultation meeting was organized for January 23, 2007. Following the meeting, numerous written submissions were submitted in favour of keeping Wilcox School open. In March of 2007, a petition was circulated to keep the school open and a demonstration was held at the legislative building in Regina to protest school closures. On May 7, 2007, the Board met and thereafter, in a public meeting, passed a motion to close the Wilcox Public School effective August 15, 2007.

In reviewing the application for a mandatory interlocutory injunction, the Court noted that there were three criteria which must be assessed:

1. the merits of the case;

2. whether or not irreparable harm to the Applicant will occur if the injunction is not issued; and

3. whether the issuance of an injunction would create greater harm to the Respondent.

The Applicant submitted that the proper test to be applied with respect to the first criteria, the merits of the case, only required that there be a “serious question to be tried, relying upon RJR-Macdonald Inc. v. Canada (Attorney-General) (1994), 111 D.L.R. (4th) 385 (S.C.C.).

The Court noted that the Supreme Court of Canada in RJR-Macdonald set out three qualifications to the general proposition that the low threshold of a “serious question to be tried” was all that was necessary at this stage of the test. The first is where the interlocutory motion would in effect amount to a final determination of the action. The second is when the question of constitutionality presents itself as simply a question of law alone. The third qualification was not endorsed by the Court but was acknowledged for situations where the factual record is largely settled prior to the application being made. In such circumstances, it had been held in prior cases that the Plaintiffs must established a “strong prima facie case” to succeed.

The Court noted that in Saskatchewan, the Court of Queen’s Bench had stated in a number of cases that where a mandatory injunction is being sought against a public authority, the Plaintiffs must establish on the material filed that they have a strong prima facie case on the merits of the claim, citing Vide: Young v. Board of Education of Hudson Bay School Division No. 52 2001 SKQB 376. The Court noted that the rational for requiring the higher standard when seeking an injunction against a 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. In such cases, the facts are usually not much in dispute.

In this case, the Court found that the facts were not in dispute and that the appropriate standard to apply to the merits of the Applicant’s case was a standard of strong prima facie case.

The first issue argued by the Applicant’s was a deficiency in the notice requirement as the notice for the election for the School Community Council was two days short of the 28 days required. In this respect, the Court noted that a finding of nullity does not necessarily follow when there is a breach of the statutory formality, particulary where there was no prejudice caused by the non-compliance with the formality. In this case, there was no evidence or suggestion that a different school council would have been elected if the extra two days’ notice had been provided. At the time of the election, no one complained about the lack of notice.

The second issue argued by the Applicants was a lack of procedural fairness. The Court reviewed the five factors set out by Justice L’Heureux-Dubé in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 which set out what is required by the common law duty of procedural fairness, as follows:

1. the nature of the decision and the decision-making process employed;

2. the nature of the statutory scheme;

3. the importance of the decision to the individual affected;

4. the legitimate expectations of the party challenging the decision; and

5. the nature of the deference accorded to the body..

In reviewing the five factors identified by L’Heureux-Dubé J., the Court held that they did not mandate an overly stringent application of the rules of procedural fairness in this matter.

The Court concluded that the Applicants failed to meet the standard of a strong prima facie case and the application was dismissed.

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