Administrative law – Decisions of administrative tribunals – School boards – Schools – Suspension of students – Judicial review – Compliance with legislation – Jurisdiction of court – No reasonable cause of action
W.W. v. Lakefield College School,  O.J. No. 375, 2012 ONSC 577, Ontario Superior Court of Justice, January 27, 2012, P. Lauwers J.
The Applicants were two 17-year-old students in grade 12 at the Respondent private school (“Lakefield”). The Applicants were caught smoking marijuana and were summarily expelled. They applied for judicial review of Lakefield’s decision to expel them and sought an order reinstating them on certain conditions. Lakefield argued that the contract between the parties actually required Lakefield to expel the Applicants.
The expulsion decision was made by the “interim head of the school”. That decision was based on the content of Lakefield’s discipline policy. The introduction to the policy refers to alcohol and drug use and states that “certain offences will not be tolerated”. There is a section in the policy dealing specifically with illegal drug use, which states “the use, possession or being under the influence of illegal drugs is prohibited while on school property…” and “this offence is very serious. Violators will be expelled from the school.” The policy has been in place for many years and students have been expelled without exception. The Applicants complained about the devastating effect the expulsion would have on them.
The Court first ordered that the Applicants be identified by initials and also ordered a publication ban. These orders were made with the consent of the parties.
The Court then considered its jurisdiction to review the decision made by Lakefield. The Applicants argued that the Judicial Review Procedure Act (“JRPA”) applied to the decision. In the alternative, the Applicants argued that the Court could consider the application as one for an interlocutory injunction under the law of contract. Lakefield argued that the JRPA did not apply to its decision.
The Court considered the definitions of “statutory power” and “statutory power of decision” in the JRPA. The Court found that there was not legislative support for the Applicant’s argument that this private school was exercising a “statutory power of decision” when expelling a student.
Finally, the Court considered whether it should grant interim relief to the Applicants while the application remains to be decided on its merits. The Court applied the test from RJR-MacDonald and particularly focused on the first branch of the test from that case; namely, whether there was a serious issue to be tried.
The Court considered the Applicants’ various arguments asserting there were serious issues to be tried. For instance, the Applicants argued there was an issue as to whether their parents were given adequate notice of Lakefield’s policy on drug use. The Applicants also argued there was an issue as to whether the parents were entitled to an opportunity to be heard before the decision to expel was made. The Applicants also argued there was an issue as to whether the penalty was too harsh in the circumstances or whether the policy itself was plainly unreasonable. The Court rejected all of these arguments and concluded there was not a serious issue to be tried.
The application 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 firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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