The Applicant Town’s application for judicial review was dismissed in respect of the process followed by the Respondent School District when it relied on two specific reports and recommended closure of a school in the Applicant’s area

Administrative law – Decisions of administrative tribunals – School boards – Statutory powers – Policies – Schools – Closures – Judicial review – Compliance with legislation – Procedural requirements and fairness – Natural justice

Georgetown (Town) v. Eastern School District, [2009] P.E.I.J. No. 25, Prince Edward Island Supreme Court, May 21, 2009, W.D. Cheverie J.

In August 2008, a report was prepared about historical trends and future forecasts in respect of enrolment in P.E.I. schools with some data specific to individual schools and school boards. This report was circulated and, on January 7, 2009, the Applicant’s school board (the “Board”) had a meeting where the Superintendent presented two reports he had prepared. One report was the Permanent School Closure Report dated December 30, 2008 (the “Closure Report”) and one was the School Organization Plan dated January 7, 2009 (the “Organization Report”). Both parties agreed that the Closure Report and the Organization Report were virtually identical.

In December 2008, the Applicant was in process of compiling information for a sustainability study. After the January 7, 2009 meeting of the Board, a consultant for the Board asked the Applicant to provide some information specific to Georgetown that was relevant to the two reports. The Applicant advised the Respondent that it was in the process of a sustainability study that involved collecting some of the requested information and that the information should be available by February 2009. The Applicant filed the within application for judicial review on January 31, 2009 taking issue with the process that had been followed to that point. The application took issue with the reliance on the two reports on the basis that they did not comply with the Permanent School Closure Policy (the “Policy”). On February 10, 2009, the Board held another meeting and tabled a third report intended to supplement the Organization Report (the “Supplementary Report”).

At the hearing, the Applicant argued that the first two reports formed the basis for the recommendation to the board that it close the school and that they were so deficient that they could not be remedied by the Supplementary Report. The Applicant sought an Order of Prohibition preventing the Board from considering the two reports and the resultant recommendations respecting the school closure.

The first issue was whether the Policy was law and therefore subject to an application for judicial review. The Court applied the Oldman River test in order to determine whether the Policy was an “enactment”. The first element of the test is whether the enabling legislation is capable of supporting a power to create the Policy as subordinate legislation. The second element of the test is whether the Policy is mandatory.

The Court accepted the Board’s argument that the enabling legislation, the School Act, indicated that the Policy was not intended to have the force of law. The Court also noted that the Policy did not include penalties for non-compliance and the Policy appeared to be an internal document intended to guide the conduct of its employees including MacDonald. The Court concluded that the Policy was not an enactment and therefore not subject to the Judicial Review Act.

The second issue was, in spite of the fact that the Policy was not law, did the Board properly exercise its common law duty of procedural fairness it owed to the Applicant. In this regard, the Court first considered the factual context of the Board’s consideration of the reports. The Court made note of such facts as the incomplete nature of the first two reports. The Court also found that some of the defects in the first two reports were cured by the Supplementary Report.

The Court noted that Baker was the leading case on this issue and proceeded to decide how each of the factors outlined in that case ought to be applied to the case before the Court. The Court concluded that the factors, as applied to the current case, indicated that a lesser degree of procedural fairness was owed to the Applicant.

The nature of the decision, and the process followed in making it, were not similar to judicial decision making because the focus was on information gathering and disseminating. The nature of the statutory scheme was such that the Board’s decision was not a final one because the Lieutenant Governor in Council makes the final decision. The decision at issue was important to the Applicant and its residents but it was not only important to the Applicant because the rest of the towns had an interest in a unified approach. The Board had never had to attempt to comply with the Policy before and attempted to do so in an honest and forthright manner despite the Applicant’s concerns. The Board attempted to deal with the deficiencies when it discovered them. The Court held that the Board met its common law duty of procedural fairness.

The application for judicial review was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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