Delorey v. Strait Regional School Board, 2012 NSSC 227

SUPREME COURT OF NOVA SCOTIA Citation: Delorey v. Strait Regional School Board,2012 NSSC 227 Date: 20120618 Docket: 390139 Registry: Port Hawkesbury Between: Denise Ruth Delorey, Jamie Dean Samson, Geraldine Ann Samson and Raylene McGhee Applicants v. Strait Regional School Board Respondent LIBRARY HEADING Judge : Patrick Murray Heard: May 22, 2012, Port Hawkesbury, Nova Scotia Subject: Civil Procedure Rule 7.28, Judicial Review, Motion for Stay

Summary: The Applicant parents made a motion to stay the decision of the Strait Regional School Board to close Rev. H.J. MacDonald school, such decision being made on March 5 th , 2012. The Applicants argued that the three part test in RJR MacDonald Tobacco had been met in that there was a serious issue to be tried, namely the Board complied with the Education Act and Regulations and whether the Board had met the legitimate expectations of the parents. There was also an allegation of lack of procedural fairness and whether the Board complied with its own screening process.

Applicants allege they would suffer irreparable harm and the balance of convenience lied with them as a decision on the judicial review would be moot without a stay. Issue: A stay should be granted pursuant to Civil Procedure Rule 7.28 and under the common law test. Also in issue was whether the Applicants were required to demonstrate a serious question to be tried or a strong prima facie case?

Result: The Court denied the stay finding that considering the factors of irreparable harm and balance of convenience, the court considered that arrangement have already begun to have the students transferred to the receiving school. The court found further that the

strong prima facie case test did not apply to the Applicants. The Court did extend the time for the Board to notify the Municipality that the property was no longer required for school purposes, until a final decision was rendered on the judicial review application, scheduled to be heard in August, 2012. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Delorey v.

Strait Regional School Board,2012 NSSC 227 Date: 20120618 Docket: 390139 Registry: Port Hawkesbury Between: Denise Ruth Delorey, Jamie Dean Samson, Geraldine Ann Samson and Raylene McGhee Applicants v. Strait Regional School Board Respondent Judge: The Honourable Justice Patrick J. Murray Heard: May 22, 2012 in Port Hawkesbury, Nova Scotia Counsel: Christopher Boyd, for the Applicants Peter McLellan, Q.C., for the Respondent By the Court :

Introduction: [1] The Applicants, Denise Ruth Delorey, Jamie Dean Samson, Geraldine Ann Samson and Raylene McGhee, seek a Stay of theDecision of the Strait Regional School Board rendered March 5, 2012 to close the Rev. H. J. MacDonald Elementary School in Heatherton, Nova Scotia. Its closure would be effective June 30th, 2012. [2] The stay which the Applicants seek is in advance of a Court Hearing set for August 16th and 17th, 2012 in Port Hawkesburyto deal with the merits of the Application for Judicial Review of the Board’s decision.

The Applicants submit the stay is necessary topreserve the integrity of the Judicial Review. If they are unsuccessful at this preliminary stage, they argue that the decision of the Courtwill be moot because it will come too late for the school to remain open, should the decision be in their favour. [3] The Applicants state further that they will suffer irreparable harm, and that the balance of convenience lies with them. Theysay they will suffer the greater inconvenience if the stay is not granted compared to the Respondent.

The Board, in the view of theApplicants, will be less inconvenienced , if the stay is granted. [4] The Applicants argue that the stay is warranted under the three (3) part test set out in RJR MacDonald Tobacco Inc. vCanada (Attorney General) (SCC), [1994] 1 SCR 311, the leading case in Canada on injunctive relief, of the type (astay) being sought by the Applicants. [5] The Respondent’s Board’s position is that while the decision reached was a difficult one, it was made after extensive andopen consultation with the public, the community, and all stakeholders, including the Study Group of which the Applicants (or some)were members.

The Board states that this is not a case where the court should exercise its discretion to grant the stay but rather exerciseits discretion to refuse the stay, and allow the court to make its final decision after a full hearing on the merits in August, 2012. [6] To allow for this the Board has filed an undertaking that the HJM school property will remain under the Board’s control until such time as a court decision is made or October 31st, 2012, whichever is earlier. The Board’s decision was voted upon by electedofficials, who were fully informed.

Thus the Board submits the decision should stand, and no stay should be granted. [7] The Board states further the Applicants have failed to show that they will suffer irreparable harm if the stay is not granted. The students have been provided for and accommodated at a receiving school. Many of the teachers will be moving to the new school,St. Andrew’s Consolidated and the bus ride, while less convenient, is not onerous at 10 kilometres. [8] Therefore the Board submits that many of the arrangements have been made for next year.

This combined with the financialdeficit the Board will face if the school remains open, means the Board will be significantly inconvenienced, if the stay is granted. Compliance with the Collective Agreements regarding teachers and staff is a significant factor for the Board. The process takes time tounfold and is unfolding. Thus the Board argues granting the stay would be unjust, taking all matters into account. The School: [9] Rev. H. J. MacDonald school’s enrollment has been declining. Currently it has 73 students from grades primary to 6.

It has6.4 teachers and as well 4 additional staff including a librarian, teaching assistant, a janitor, and bus driver. It has a gymnasium and aplayground and other amenities of an elementary school. It has a proud history in the community of Heatherton. Enrollment is expected to decline by a further 10 students to 63, by the 2015 school year. [10] The cost of operating the school per student is a critical issue as is student enrollment relative to the capacity of the school. Toqualify for closure under the current process the school met two of six criteria.

The two criteria which the Board found applied to H.J.M.were that; (1) it was operating at less than fifty percent (50%) capacity in the terms of the building design, relative to student enrollment;and (2) the cost of operations per student was significantly higher than the average cost within “the system”.

The Applicants: [ 11 ] The Applicants have children who attend Rev. H.J.M., or were scheduled to attend the school this fall. The Applicants, Denise Delorey and Jamie Dean Sampson were appointed members of the Study Committee. In addition they were members of the School Advisory Committee as well as the informal group called, “ Save Community Schools ” . The latter group was formed in March of 2010 and is also know as “ Concerned Parents ” . The Study Committee was established to review the Impact Assessment Report (the “ IAR ” ) and provide a report.

This included many tasks, including requesting and gathering information, holding community meetings, contact with the three potential receiving schools and meeting with their advisory committees. On February 8 th , 2012 Ms. Delorey and Mr. Delorey presented the HJM Study Committee response to the IAR. Prior to that on February 1 st , the Study Committee forwarded an email to the chair asking the Board to review the response in advance and to advise if clarification was required prior to the February 8 th presentation.

The Criteria: (as contained in the Screening Report) [ 12 ] The Board maintains it was required to review the schools for closure. It is one of seven (7) school boards in the province, serving 25 schools in the four (4) counties of Antigonish and Guysborough on mainland Nova Scotia, and the Counties of Inverness and Richmond on Cape Breton Island. These are mostly rural schools with over 7,200 students, governed by an elected school board.

The chair of the school board is currently Mary Jess MacDonald. [ 13 ] The Board has an internal screening process which it adopted in support of but not in replacement of the Public School Review Process, as defined by the Regulations under the Education Act of Nova Scotia . The screening process is conducted annually to identify schools for possible closure.

The Screening Process states: “ A staff report will be prepared which identifies schools which meet two or more of the following criteria. ” [ 14 ] The six (6) criteria set out in the screening process are as follows: (i) “ The existing or future regular staffing allocation does not support the delivery of the Public School Program by qualified and competent staff (i.e., core subjects, music, physical education, Resource/Guidance, French Second Language, and/or technology education). (ii) The final staffing allocation for the school is significantly skewed relative to the remainder of the region. (iii) The facility operating cost per student per square foot is significantly higher than the system average. (iv) Circumstances in the system indicate that change in facility use will result in reduced operating costs for the Strait Regional School board. (

v) Enrollment is less than 50% of the capacity for which the building is designed resulting in significant more space than required.

(vi) The school and/or school site requires a substantial amount of major maintenance or major renovation. ” [ 15 ] Notably, the document also states that: “ Schools will not be screened which meet the following criteria: Schools which have undergone a school closure review process within the past 10 years. ” (Emphasis added) [ 16 ] At issue in this review is whether H.J.M. had “ undergone ” a school closure review process. The Applicants submit it did, beginning in late 2009 , which process was “ terminated ” in 2010.

The Respondent board submits the process was not terminated but rather “ discontinued ” , and a motion to this effect was passed by the Board. [ 17 ] At this point I simply reiterate that in the Board ’ s view, H.J.M. has met two (2) of the six (6) criteria in the “ new ” screening report of January 24, 2011, those criteria once again being: i. Elevated operating costs to the number of students in the school. ii. A low number of students relative to the capacity of the school. [ 18 ] As a result, the staff report to the Board recommended that H.J.M. be “ identified ” for review.

As required the Board prepared an Identification Report ( “ IDR ” ). This began the lengthy “ Closure Review Process ” . In this case that process took approximately 15 months from January of 2011 to March of 2012, extending even further into April and May of 2012, in terms of motions and directions regarding the closure. The School Closure Process : [ 19 ] The provincial Education Act, S.N.S.195-96, c.1 (the Act ) and the Ministerial Education Act Regulations, N.S. Reg 80/97 (the Regulations) set out the steps and the time lines required prior to closing a school.

Section 89 of the Act mandates that the Board follow the procedure set out in the Regulations . “ Review of school 89

(1) A school board may identify a public school under its jurisdiction for review;

(2) Identification of a public school for review must be in accordance with the criteria set out in the regulations;

(3) Upon identifying a public school for review, the school board shall prepare and make available to the public a report in accordance with the regulations;

(4) Before making any decision respecting a public school that is the subject of a report pursuant to subsection (3), the school board shall, in accordance with the regulations, establish a study committee to review and respond to the report;

(5) Following its receipt of a response from the study committee, the school board shall;

(

a) make public the study committee response; and (

b) hold a public meeting; in accordance with the regulations. 2007, c. 15, s. 1 ; [ 20 ] A

summary of the steps and time lines as set out in the Act and Regulations is summarized in further detail in the Applicants ’ Brief at para 7: “ (Closure Review Process): (

a) in order to identify a public school for review, the board must prepare an Identification Report ( “ IDR ” ) containing a variety of information regarding the school and the Board region as a whole and table the IDR by April 1 of the given school year (see

section 16 of the Regulations ); (

b) once a school has been identified for review, the Board must prepare an Impact Assessment Report ( “ IAR ” ) describing the anticipated impact of school closure on students, the community as a whole, and the Board. The IDR must be appended to the IAR and the IAR must be tabled by September 30 (see

section 17 of the Regulations ); (

c) once the IAR has been tabled, the Board must create a Study Committee for the school by October 7. The Study Committee is composed of various groups including parents, the principal of the school, teachers and staff at the school and other community members. The purpose of the Study committee is to prepare a written response to the IAR and submit the response to the Board no later than February 1 of the year following the year in which the Closure Review Process was initiated (see

section 18 of the Regulations ); (

d) once the Study Committee submits its response, the board must table the response at a meeting by February 28. By March 24, the Board must have a public hearing regarding the IAR and the Study Committee ’ s response. The public is given an opportunity to make representation at the hearing (see

section 19 of the Regulations ); and (

e) after the public hearing (and before March 31), the Board must make a decision regarding the outcome of the Closure Review Process at a public meeting (see

section 20 of the Regulations ). ” The Motion [ 21 ] The Applicant ’ s motion was filed on April 4 th , 2012, less than 30 days after the Board ’ s decision to close on March 5 th , 2012. It reads as follows: “ The Applicants in this proceeding move for an order for a stay of the closure of the Rev. H.J. MacDonald school, Heatherton, Nova Scotia, by the Strait Regional School Board, pending the outcome of judicial review. ” The Order Sought by the Applicants

[ 22 ] In the judicial review application, filed on the same day as the Motion (April 4 th , 2012 ), the Applicants seek the following order: “ The Applicant ’ s request an order for certiorari to quash the decisions of the Strait Regional School Board dated March 5 th , 2012 and March 6 th , 2012. ” The decision of March 6 th , 2012 pertained to the school to be closed which was West Richmond Education Centre.

The Board ’ s Decision [ 23 ] The following decision of the Board, as recorded in the Minutes the Special Board Meeting held on Monday, March 5 th , 2012 , is attached to the affidavit of Superintendent, Mr. Jack Beaton as Exhibit “ U ” : “ Upon the Strait Regional School Board: 1. Having identified Reverend H. J. MacDonald, a public school, for review for closure pursuant to the Education Act and Regulations ; 2. Having had an Identification Report prepared with respect to Reverent H. J. Macdonald School; 3.

Having had an Impact Assessment Report and having had such a report tabled at a public meeting of the Strait Regional School Board on September 27, 2011; 4. Having the School Advisory Council of Reverent H. J. MacDonald School take on the role of the Study Committee for the school and having the Study Committee conduct its first meeting on October 16, 2011; 5. Having received a written response from the Study Committee and tabling such response at a public meeting of the Strait Regional School Board held on February 1, 2012, and 6. Having conducted a public hearing with respect to Reverend H. J.

MacDonald Elementary School on February 16 2012 BE IT RESOLVED that the Strait Regional School Board permanently close Reverend H.J. MacDonald Elementary School, a public school. ” Civil Procedure Rule 7.28 [ 24 ] A motion for a stay pending judicial review is governed by Nova Scotia Civil Procedure Rule 7.28 as follows: 7.28

(1) A judge may stay a decision under judicial review or appeal and any process flowing from the decision until the determination of the judicial review or appeal.

(2) A motion for a stay must be made at the same time as the motion for directions, unless a judge orders otherwise.

(3) The motion must be made by notice of motion in accordance with Rule 23 - Chambers Motion, although it is mentioned in the notice of appeal or notice for judicial review.

(4) A judge may grant an interim stay until the hearing of a motion for a stay.

(5) The judge may grant any order, including an injunction, as may be necessary to effectively stay a decision. [ 25 ] I note further that Section 43(9) of the Judicature Act, R.S.N.S. 1989, c 240 allows for the granting of interlocutory relief, in the form of an injunction, as does Rule 7.28(5). In such circumstances the court has discretion to grant an order, “ in all cases in which it appears to the Supreme Court to be just or convenient, that such an order should be made and any such order may be made either unconditionally or upon terms and conditions as the Supreme Court thinks just, ” .

Grounds for Judicial Review: [ 26 ] The Applicants in their notice of Judicial Review allege that the Board: “ (

a) Failed to comply with the Education Act and the Ministerial Education Act Regulations, N.S. Reg 80/97 (the "Regulations"). (

b) Failed to meet the legitimate expectations of the Applicants with respect to procedure. (

c) Failed to follow its Screening Process for Schools to be considered (for School Review). (

d) Failed to provide procedural fairness to the Applicants. [ 27 ] The Applicants further allege that the Board acted in a manner that was unfair, arbitrary, in bad faith, and was biased in its decision to close the two schools. The Respondent ’ s Position: [ 28 ] The Respondents deny the allegations of the Applicants and state further there is no basis for the allegations that they acted in a manner that was unfair, biased, arbitrary or in bad faith. [ 29 ] On the contrary, the Board states that the process was not only lengthy, but an open and public process. The Board states it provided a massive amount of information, after much consultation with a wide

section of the community. In para. 31 of the Respondent ’ s brief the Board described the opportunities for presentation that were given as follows: 1. November 20, 2010 - Presentation by Randy Delorey and Denise Delorey to the committee of the Whole Board. 2. March 9, 2011 - Regular Board meeting. 3. October 3, 2011 - Email from Randy Delorey to the Board.

4. November 28, 2 011 - Meeting attended by the Applicants Randy and Denise Delorey and Jamie Samson with the board ’ s Director of Finance, William Cormier. 5. January 31, 2012 - Written submission by the HJM Study Committee, chaired by Denise Delorey and of which Randy Delorey and Jamie Samson were members. 6. February 8, 2012 - Special Board meeting presentation by Randy and Denise Delorey on behalf of the HJM Study Committee. 7. February 17, 2012 - Email from Denise Delorey to the chair of the Board. 8. February 16, 2012 - Public Hearing at HJM.

Both Randy and Denise Delorey attended and addressed the Board. 9. February 22, 2012 - Letter from Denise Delorey was provided to Board members. [ 30 ] In paragraphs 72 - 75 of Mr. Beaton ’ s affidavit, he submits that: “ Throughout the above process, the Board had prepared and reviewed significant amounts of documentation and received submissions from many members of the public, including the Applicants. ” [ 31 ] The Respondents therefore submit that the Applicants were aware of the school review process and had many opportunities to make submissions to the Board.

The Law - Granting a Stay [ 32 ] I turn now to consider the law on whether a stay should be granted to the Applicant. Both parties agree through their counsel that the three (3) part test in RJR MacDonald Tobacco applies, with the exception that the Respondent Board takes a different view on the standard or onus of proof in the first part of the test. Both parties agree as to the 2 nd and 3 rd parts of the well known test, which the Applicants describe as follows:

(2) Would a refusal to grant a stay cause the Applicants irreparable harm?

(3) Does the balance of convenience favour the granting of a stay? [ 33 ] Instead of the first question being, have the Applicants established an arguable issue or serious question to be tried, the Respondent submits the proper question is : Have the Applicants shown or demonstrated a strong prima facie case? [ 34 ] The Respondent in oral argument conceded that the Applicants ’ case is not frivolous or vexatious, which is the standard (lower threshold) test set out in RJR MacDonald .

This means there is a substantial (or serious) question to be tried (paragraph 56, RJR ). [ 35 ] The Applicant did not deal specifically in their brief with the question of whether the higher threshold applies. In oral argument, Mr. Boyd, the Applicants ’ counsel submitted simply, it is not the law in Nova Scotia. [ 36 ] The Applicants stated further the “ stronger ” test was not approved or “ endorsed ” by RJR MacDonald and that even if it did apply, it is limited to circumstances; 1) where it is clear the facts are not in dispute; and 2) where a mandatory injunction is sought against a public authority.

The rationale for the higher burden is that the decision of a public authority should not be interfered with,

except in the clearest of circumstances. Thus, the Respondent argues the requirement for a strong prima facie case to be established by the Applicants, exists here. [ 37 ] The Respondent board submits (at para 43 of its brief) that the high threshold should apply because: “ (

a) The factual record is largely settled. (

b) The Board is a public authority that is acting in the public interest. ” [ 38 ] The Respondent further argues that a strong prima face case is, “ one where the probability of success (in the absence of rebutting evidence) is better than 51% (but how much better I do not know) ” . ( Sheehan &Rosie Ltd. v. Northwood , 2000 O.J. 176 (S.C.J.) ) [ 39 ] While the rationale for the higher standard is understandable and makes good common sense, there are cases where the Applicants also claim to be representing the public interest, to an extent.

As part of the Respondent ’ s Book of Authorities at Tab 19, the Minister of Education (in Hansard), stated that the amendments to the Education Act , “ Will further improve and clarify the school review process. ” Specifically the Honourable Minister stated: “ Everyone, I think, will agree that the decision to review a school for possible closure is always a difficult one, not only for school boards, but for parents, students and staff served by or working in that school.

That is why it ’ s important that we make the decision- making process as clear, as open and as accountable to the public as we can. ” (emphasis added) [ 40 ] Being accountable to the public in large measure supports the imposition of a higher threshold as does complying with the new Regulations implemented to improve and promote accountability. [ 41 ] The Board here was required to complete a review of its schools for closure. However, while the facts are largely settled, some are not. An example is whether the earlier review process was “ terminated ” or “ discontinued ” .

Depending on that finding (which may be a mixed question of law and fact), the result for either party could be “ fatal ” . [ 42 ] Another consideration is the degree to which strict compliance is required under the new Regulations , which have never before been considered. The requirement for public accountability may suggest that the Regulations be closely adhered to. The Applicants argue that the sorts of breaches committed by the Board were precisely those which the amendments to the Act and Regulations were meant to prevent.

Being new legislation, what the expectations of the Applicants were is an issue, as is whether they were legitimate, and if so whether they were breached . (Para.45 of Applicants ’ Brief referring to sources of data, and the methodologies used to prepare the IDR ’ s and the IAR ’ s). [ 43 ] In citing R.J.R. MacDonald , the Applicants emphasized the following passages from para. 78 in terms of the test for granting a stay: “ Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits.

Unless the case on the merits is frivolous or vexatious or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test. ” [ 44 ] The Respondent states there is no prima facie case to support any of the grounds for review in the Notice of Judicial Review. [ 45 ] The Respondent further submitted that the strong prima facie case test was recently applied to CPR 7.28 in North End Community Health Association v Halifax Regional Municipality 2012 NSSC 92 .

While it was considered, the test was not applied.

In paras. 20 and 21 the court in North End compared the facts to those in Metz v.Saskatchewan , 2007 SQKB as follows: “ 20. This decision involved an application for an interim injunction to restrain the School Board from closing a school and reallocating students. The Court concluded that there was a presumption that the public interest was represented by the Board, and on that basis, a higher standard should be applied to an assessment of the merits of the application.

In my view, the decision to sell surplus property to a developer is much different than one involving the operation and management of public schools. The applicants here might argue that they are representing the public interest in attempting to require HRM to abide by their own policies. A public authority is not necessarily the sole representative of the broader public interest. 21.

In my view, the threshold burden on the applicants is simply to establish that there is a serious question to be tried on the judicial review application. ” [ 46 ] In North End , Justice Wood noted in considering the decision in Metz v Saskatchewan , above, that the case before him was distinguishable in that it was not one involving the operation and management of public schools and therefore was “ much different ” .

This would seem to bolster the Respondent ’ s argument that a high burden should apply, as both Metz and the case before me involve school closures. [ 47 ] It is worth noting that in Northwood , the Court found that a public authority is not necessarily the sole representative of the broader public interest.

Further, the Court questioned (at para. 18) whether the exception (of a strong prima facie case) exists at all, even in cases where the record is largely settled: “ This suggests that the Supreme court was not satisfied that such exception exits...Although the facts may not be in dispute, the legal issues certainly are.

I do not think this is an appropriate case to require the Applicants to establish a strong prima facie case, even if such an exception exits. ” [ 48 ] Similarly, I do not think this is an appropriate case to require the Applicant to establish a strong prima facie case, notwithstanding that is it a school closure. [ 49 ] In terms of merits, a key consideration , as Justice Oland stated in Potter v Halifax Regional School Board , 2002 NSCA 88 is whether the Applicants were given “ a meaningful opportunity to present their case fully and fairly ” .

As well, at issue is whether the procedures followed complied with the Regulations , whether the provisions were directory or mandatory, and/or whether any breaches resulted in “ substantial prejudice ” , as indicated in Potter . [ 50 ] Lord Diplock in American Cyanamid Co. v Ethicon Ltd., [1975] A.C. 396 (H.L.) , cautions that a preliminary attempt to predict the outcome is “ fraught with danger ” , and ought not to be undertaken. A prima facie case is generally one worthy of a trial.

Typically the threshold is a low one, as noted. [ 51 ] In Potter , supra, Oland J. noted also that with respect to the duty of fairness, of which a breach is alleged here, as one of the grounds for judicial review: “ It is necessary that the legislation be examined in some detail. ” [ 52 ] In Metz , the Court stated there must be “ real merit to the claim being advanced ” , before a public authority is “ prevented from acting ” .

As stated the Board concedes the Applicants ’ claim is neither frivolous or vexatious, meaning there a serious issue to be tried. “ Real merit ” may be different from a serious question to be tried, in terms of the burden. Certainly it is a question of degree. Arguably determining whether a strong prima facie case exists may require a preliminary attempt at determining the outcome. I have not been provided with a Nova Scotia case where the higher burden of strong prima facie has been applied. [ 53 ] A more in depth analysis is necessary to determine whether there has been any breach of the duty of fairness.

I therefore heed the caution not to attempt to “ predict the outcome ” .

[ 54 ] My approach will therefore be to treat the first part of the test in R.J.R. MacDonald as being met by the Applicants.

In this regard I have considered the oral submission made by the Respondents that the matter will turn, for my consideration, on the second and third parts of the tests. [ 55 ] This being a discretionary remedy it may be necessary for me to return to the strength of the Appellant ’ s case, if a clear conclusion cannot be reached following an analysis of the 2 nd and 3 rd part of the test, irreparable harm and balance of convenience. (Sharpe, Injunctions and Specific Performance, Canada Law Book, January 2012) 2.

Irreparable Harm [ 56 ] In their brief (at paragraph 49), the Applicants state succinctly, the irreparable harm they will suffer if their motion for stay is refused: “ The irreparable harm that will be suffered by the applicants if their motion for stay is denied is simple and star: HJM is currently scheduled to be closed before June 30, 2012. It is unlikely that the judicial review will be heard by that time.

If HJM is closed prior to the judicial review then the entire basis of the applicant ’ s case is rendered moot. ” [ 57 ] The basis for this argument is that if HJM is closed, the Board will lose control of the property, and it will revert back to the Municipality of the County of Antigonish, under s. 92 of the Education Act . That

section reads as follows: “ 92(1) Buildings owned by municipalities and used for school purposes are under the exclusive control and management of school boards and school boards are responsible for providing adequate maintenance and repairs and shall insure the buildings in amounts agreed upon by the municipalities and the school boards.

(2) The school boards shall notify the municipalities when land and buildings owned by the municipalities are no longer required for the purposes of the school boards. 1995-96, c.1, s. 92 " [ 58 ] The evidence of irreparable harm which the Applicants provide is further contained in para. 63 of the affidavit of Denise Delorey: “ As of the swearing of this affidavit, I note that the potential exists for HJM to close prior to July 1, 2012.

I am concerned that if our motion for stay is not granted then an ultimate judicial review will be moot as it will be within the Board ’ s power to reassign teachers and staff, remove necessary furniture and appliances, and basically make it impossible to resume classes in the autumn. ” [ 59 ] As to the reassignment of teachers, the evidence is that reassignment has already begun, with many of the teachers being transferred to the receiving school, thereby “ following ” , the students at HJM. (Para. 84 of Beaton affidavit) [ 60 ] Mr.

Beaton ’ s affidavit affirms that under the collective agreement, when an entire school is closed, “ staff ” must be transferred with their students (Article 29.2). The evidence further confirms that the process of transferring students has already begun, with orientation for primary students at the receiving school having been completed. (Beaton affidavit at para. 87) [ 61 ] This is not to suggest there is no harm to the school and surrounding community by a closure.

Justice Oland in Potter, supra, summarized, I think the feeling of most parents, recognizing that a school (I add, particularly a small school in a rural community) is a vital part of everyday life, when she said at para. 50: “ The education, development, and safety of their children are of critical importance to parents. Parents know with bone-deep certainty that the school their child attends will shape him or her in many ways. Many chose their child ’ s schools with care and make major decisions around those choices.

A school ’ s programs, its facilities and their condition, its teachers and other staff, its class sizes, its distance from home, and its sense of community are but some of the factors that will influence a child ’ s learning and personal development, and often even the day to day routine of that child ’ s family. The closure of a school means reassignment of its students to another or other schools which will likely be disruptive in many ways and require adjustment.

When such circumstances are considered, it cannot be doubted that parents have an interest which is seriously affected by a decision by the Board to close the school their child is attending. ”

[62] The granting of an interlocutory stay is discretionary under s. 43(9) of Judicature Act of Nova Scotia and those discretionarypowers must be based on sound legal principles in deciding what is “just and convenient”. [63] Following this reasoning, I find the comments of the court in Noreco Inc v Lazyworks Computer Inc. 1994 NSJ No. 408, tobe consistently a guiding force, where at para. 27 Saunders J. stated, in regard to the tests of irreparable harm and balance ofconvenience: “The checklist of factors which the courts have developed, the relative strength of the case, irreparable harm and balance of convenienceshould not be employed as a series of independent hurdles.

They should be seen in the nature of evidence relevant to the central issue ofassessing the relative risks of harm to the parties from granting or withholding interlocutory relief.” [64] Arriving at a just and equitable decision in the case before me requires me to consider whether “justice will come too late forthe Applicants if their application for a stay is refused”.

I rely here on the statement of Davison J. who was cited by Bateman J.A. inCooperator’s Insurance Co. v Vern Paul Insurance Agencies [1994] NSJ No. 42 as follows at para. 5 : “Beyond the threshold test, the Court must consider the balance of convenience to the parties. Commonly the applicant must establishthat it will suffer irreparable harm, not compensable by an award of damages, failing the granting of an injunction. To paraphraseDavison, J., in Uniglobe Travel (Atlantic) Inc. v.

Fundy Travel Limited et al (1991), (NS SC), 113 N.S.R. (2d) 340(N.S.S.C.T.D.) at p.341, the key question, on the balance of convenience, is whether the plaintiff has demonstrated that failing thegranting of an interlocutory injunction, the remedy at trial would come to late to do justice.” [65] In Potter v Halifax Regional School Board, 2002 NSCA 105, it was held that children having to attend a different school didnot constitute irreparable harm.

At para. 10 of the decision Roscoe J.A. stated as follows: “Although the Applicants have met the threshold of raising an arguable issue, I am not persuaded that the applicants will suffer anyirreparable harm by having their children attend a different school in September. The Board has undertaken not to dispose of theNorthbrook School until after the matter is finally determined in the Supreme Court of Canada. The Superintendent has sworn that ifthe parents are successful in having the Supreme Court reverse the decision, of this court, that the Board will be in a position to reopenNorthbrook.

Since the school has already closed, and the teachers and staff have been reassigned, the balance of convenience definitelyfavours the Board. Furthermore, I am not satisfied that there are exceptional circumstances that would make it fit and just that the staybe granted in this case.” [66] In Christianson v Chinook School Division No. 211, 2008 SKQB 267, it was found that the board had met the statutoryrequirements. Further the court held that as long the procedure was followed, and the decision was made in good faith, the school couldbe closed.

Both low and declining enrollment were considered plus numerous other factors. The court found there had been extensivecommunity consultation and made a finding that the Board had demonstrated fairness and open mindedness throughout the process. Indiscussing irreparable harm and balance of convenience, the court held that the students would be bused, “a short eight miles away”. Inthe present case the students will be bused ten kilometres or six miles. [67] In Young v. Hudson’s Bay School Division, No.52, 2001 SKQB 376, the court considered the impact of school downsizingon the community.

The students were to be bused 25 miles although there was conflicting evidence. The legal issue was failure todisclose a final budget report and provide the Plaintiff’s with an opportunity to respond, and therefore an alleged breach of the duty offairness. The court held that the test of strong a prima facie case had not been met. Further the court found that it was not a case whereif the Plaintiff’s were successful, the relief would come too late to avoid serious harm, as success would require the school to be restoredto a K to 12 facility.

The court further held it was impossible to determine on the evidence before it, whether the students would beaffected by the quality of education, and whether they would suffer harm in that regard. The court found from the board’s point of view,that the remedy sought was drastic, as teachers had been redeployed and everything had been put in place at the receiving school toreceive the students. The court held the Plaintiff failed to show irreparable harm and the balance of convenience clearly favoured theDefendant school board. Balance of Convenience:

[68] Weighing and considering balance of convenience and irreparable harm, and blending the two together, I note that theApplicants (in respect of the balance of convenience test), resubmit the argument that without a stay, any success on a judicial reviewwill be moot. In other words, the Applicants position is that the relief will come too late to do justice if a stay is not granted. [69] It is uncertain whether the 2012-2013 school year at HJM can be “saved”, with or without a stay, and perhaps even if theApplicants are successful on the Judicial Review. The wheels are already in motion for the closure.

The Board appears to be keeping anopen mind, in terms of the court process. From their evidence, including their recent motion and undertaking, I infer that any closurewould be temporary, if the Board were ordered to re-open Rev. H.J.M., by an Order of this Court. [70] At this point I am unable to say with any assurance that certiorari would be granted, as such a decision is not appropriate untilthe matter is fully heard. As directed by law, I should refrain from an in depth analysis and factual findings.

I am aware more scrutiny isrequired where the final outcome will be dictated or determined in effect by this interim finding. I am not persuaded that this is the casehere. [71] In Friends of Niagara District Secondary School v Niagara District School Board [2010] O.J. No. 3932, the court took intoaccount that the judicial review could be heard in two months, similar to the present case. Also it found that the “school site” or schoolproperty, “ would remain intact, with no plans to dispose of it.” [72] This is also similar to the case before me.

The Board has said clearly, the October 31, 2012 deadline to notify the municipality,could be extended if necessary. By this the only logical inference is that the Board acknowledges the students could return to the school,if the Application is successful. [73] Some additional and relevant factors are that the Board will suffer a deficit of approximately $260,000 for the 2012 - 2013school year if the school remains open. While there is some disagreement on numbers, this evidence is largely uncontradicted by theApplicants. This figure takes into account the recent additional funding grant for small rural schools.

The Applicant’s position on thispoint is that this amount represents only a small percentage of the Board’s overall budget (3%) and as such, the effect would be minimal. I disagree. One of the benefits of transfer to a larger school is the availability of more programs. Those may curtailed by the Board, ifforced to reduce spending. The deficit being faced by the Board is substantial. It is a significant consideration, and one which I findfavours the Board in terms of the balance of convenience.

Decision: [74] In Noreco, supra, Justice Saunders described the appropriate question as follows at paragraph 27: “No matter what test is applied the ultimate question remains the same, is it just or convenient that I exercise my judicial discretion bygranting the temporary but drastic remedy of interlocutory injunctive relief.” [75] In Gateway Realty v Arton Holdings Limitied, , 1990 Vol (NS CA), 96, NSR (2d) 82, Matthews J.A.stated: “Generally speaking ...there is no firm or fixed rule but rather the tendency is for the court to apply a test which is likely to produce a justresult.” [76] This is what I am obligated to do in this case, to produce a just result. [77] I am not convinced the granting of a stay in this circumstance will make any measurable difference between now and the timeof the Judicial Review hearing in August, 2012.

A stay is not a reversal of the Board’s decision. It may send a message that the decision

could be set aside, but that is already known to the Board. [ 78 ] The Board has undertaken: “ not to give notice to the Municipality of the County of Antigonish (the “ Municipality ” ) that the land and building for the Reverend H.J. MacDonald School ( “ HJM ” ) are no longer required for the purposes of the Respondent until the earlier of: (

i) The date that a judge determines the Applicants ’ application for judicial review; or (ii) October 31, 2012. ” [ 79 ] While the Board ’ s authority for the undertaking has been questioned by the Applicant, I believe the Board can be taken at its word. That decision was arrived at by a resolution duly passed at a Board meeting on May 16 th , 2012. As previously stated now is not the time to decide difficult questions of law. [ 80 ] On it ’ s face s. 82 of the Education Act leaves it to the Board to decide “ when ” the school property is no longer needed for school purposes.

Its Superintendent, Mary Jess MacDonald has signed the written undertaking which is attached to the sworn affidavit of the Board ’ s Superintendent, Mr. John A. (Jack) Beaton. I note this undertaking states further that the Board “ will reasonably maintain and pay for the costs of maintaining the school in its present condition ” . [ 81 ] It may be said that the practical utility of a school opening again, once it is closed is, unlikely.

The Applicant ably argues that this undertaking is not as detailed and strong as that given in Potter (the second decision), where it was sworn to under oath that the school would be re-opened. I do note the Board in its brief stated, “ The school can be re-opened ” . [ 82 ] In terms of irreparable harm, such a decision, in my view does not make the final decision moot. Beyond the students being bused, the alleged harm is qualitative in nature. The quality of their education may be different, but it will not necessarily be less.

At least that has not been established to this point. [ 83 ] A stay at this time , would do little more than to disrupt the process for the students, the Board and the parents. A stay would only create confusion. The court must have regard to the student ’ s best interests, until a final decision is made. As difficult as that may be to accept, I find the balance of convenience favours the Board, having regard to the process to date and all concerned at this time.

Things must and should be allowed to take their normal course, pending a final outcome on judicial review in August of 2012. [ 84 ] It is insufficient to show that irreparable harm “ may arguably result ” . The burden is on the party seeking the stay to show that irreparable harm “ will result ” . I have considered the interrelated factors of irreparable harm and balance of convenience. In doing so I have come to the conclusion that the balance of convenience favours the Board.

In the result therefore, the stay should not issue. [ 85 ] That said, I earlier indicated that I had authority under the Judicature Act to made an order upon such terms and conditions as the Court thinks just, in respect of this matter. In regard to when a decision will be forthcoming following the hearing in August, the Board has undertaken to not provide notice to the Municipality (of whether the property is required for school board purposes) until the earlier of the court ’ s decision or October 31, 2012.

I am exercising my discretion and authority to extend the date of October 31, 2012 if necessary . [ 86 ] Therefore, I hereby direct, as part of the Order denying the stay, that notification shall not be given by the Board to the Municipality until such time as the Court decision on the judicial review Application is rendered.

[ 87 ] Order accordingly. J.