2015 NBCA 58, 2015 NBCA 58

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 76-15-CA 77-15-CA HER MAJESTY THE QUEEN in Right of the Province of New Brunswick, as represented by the Minister of Education APPELLANT SA MAJESTÉ LA REINE DU CHEF DU NOUVEAU-BRUNSWICK, représentée par le MINISTRE DE L’ÉDUCATION APPELANTE - and - - et - TRACIE KENNEDY, PHILIP KENNEDY, SANDRA SPEIGHT, PAUL GORDON, CINDY RICHARDS, DWIGHT RICHARDS, JULIE MARR, JAMIE MARR, GRANT LONDON, TAMMY LONDON, TERRY MARR, MELANIE MARR, RAE MARIE PAISLEY, CINDY PETERSON, ASHLEY TAYES, AMANDA WOOD, LEE-ANN SMITH, DONALD PATERSON, DUANE TAYLOR, REBECCA TAYLOR and KEN CRAFT RESPONDENTS TRACIE KENNEDY, PHILIP KENNEDY, SANDRA SPEIGHT, PAUL GORDON, CINDY RICHARDS, DWIGHT RICHARDS, JULIE MARR, JAMIE MARR, GRANT LONDON, TAMMY LONDON, TERRY MARR, MELANIE MARR, RAE MARIE PAISLEY, CINDY PETERSON, ASHLEY TAYES, AMANDA WOOD, LEE-ANN SMITH, DONALD PATERSON, DUANE TAYLOR, REBECCA TAYLOR et KEN CRAFT INTIMÉS - and - - et - ANGLOPHONE SOUTH DISTRICT EDUCATION COUNCIL INTERVENER CONSEIL D’ÉDUCATION DE DISTRICT DU DISTRICT SCOLAIRE ANGLOPHONE SOUTH INTERVENANT Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Minister of Education v.

Kennedy et al., 2015 NBCA 58 Sa Majest é la Reine du chef du Nouveau-Brunswick, repr é sent é e par le ministre de l’Éducation c. Kennedy et autres, 2015 NBCA 58 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Richard CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Richard Appeal from decisions of the Court of Queen’s Bench: August 28, 2015 Appel de décisions de la Cour du Banc de la Reine : le 28 août 2015 History of Case: Historique de la cause :

Decisions under appeal: 2015 NBQB 170 2015 NBQB 171 Décisions frappées d’appel : 2015 NBBR 170 2015 NBBR 171 Preliminary or incidental proceedings: Order dated September 8, 2015 Procédures préliminaires ou accessoires : Ordonnance datée du 8 septembre 2015 Appeal heard and judgment rendered: September 25, 2015 Appel entendu et jugement rendu : le 25 septembre 2015 Reasons delivered: September 25, 2015 Motifs déposés : le 25 septembre 2015 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Richard Counsel at hearing: For the appellant: Christian E.

Michaud, Q.C. and Amy R. Gough Farnworth For the respondents: Kelly Lamrock, Q.C. For the intervener: André G. Richard, Q.C. and Josie H. Marks Avocats à l’audience : Pour l’appelante : Christian E. Michaud, c.r., et Amy R. Gough Farnworth Pour les intimés : Kelly Lamrock, c.r. Pour l’intervenant : André G. Richard, c.r., et Josie H. Marks THE COURT In the text that follows, the Court fleshes out its reasons for allowing the appeal from the bench, after hearing and considering submissions on behalf of the parties and the intervener.

In the result, the Court sets aside the decisions on judicial review quashing the Minister’s approval of the closure of Brown’s Flat Elementary School and Lorne Middle School. LA COUR Dans le texte qui suit, la Cour expose dans le détail les raisons pour lesquelles elle a accueilli l’appel séance tenante, après avoir entendu les observations et examiné les mémoires présentés au nom des parties et de l’intervenant.

Au final, la Cour annule les décisions rendues relativement aux requêtes en révision qui ont infirmé l’approbation par le Ministre de la fermeture des écoles Brown’s Flat Elementary School et Lorne Middle School.

The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] There are two distinct education sectors in the Province. One consists of school districts organized in the English language, the other of school districts organized in the French language. A District Education Council has been constituted for each school district. Councils are bodies corporate by virtue of s. 36.11(1) of the Education Act, S.N.B. 1997, c. E-1.12. Their members are, for the most part, elected by the community.

The typical term of office for every elected and re-elected councilor is four years. [ 2 ] District Education Councils are responsible for the operation of the schools located within the school district for which they have been established. Each Council is provided annually with a budget to discharge that responsibility. [ 3 ] As would be expected, anticipated budgetary shortfalls may prompt a District Education Council to consider the possibility of closing a school under its jurisdiction. However, closure can only be accomplished with the approval of the Minister of Education and Early Childhood Development.

Policy 409, which was adopted in both official languages in the late 1990s by the then Minister, sets out a process for a Council to follow should it wish to secure ministerial approval of a proposed school closure. [ 4 ]

Section 6.4.2 of Policy 409 states a District Education Council must consider eight criteria when studying a school’s sustainability although it may consider other factors relevant to local circumstances. The mandatory study-related criteria are low/declining enrolments, health and safety, quality of education programs and services, transportation, finances, impact on the local community, impact on other schools and economic development. Appendix “C” to the Policy purports to obligate a Council to explain to the public how these criteria were considered as part of the public consultation process . [ 5 ]

Section 6.5.4 contemplates a minimum of three public meetings in connection with a possible school closure. The first meeting’s primary purpose is to inform the concerned “school community” of the Council’s intention. The second provides an opportunity for the community to make oral or written representations regarding any Council proposal to close a school. The final meeting is held to inform the “public” of the results of the consultation, “including an account of the factors considered, as per

section 6.4 […], and resulting recommendation […] to the Minister”. [ 6 ]

Section 6.6.2 states that, upon being notified of the Council’s recommendation in favour of closure, the Minister “will review it in relation to the principles of procedural fairness, with consideration of the factors taken into account during the public consultation process”. The

section goes on to provide the Minister may approve the recommendation, or withhold approval if, in his opinion, “procedural fairness has not been applied or relevant educational options have not been considered”. As will be underscored, while the authors do not appear to have intended any meaningful difference between the English and French versions of

section 6.6.2, both suffer from some ambiguity. [ 7 ] As its name suggests, the Anglophone South District Education Council is part of the Anglophone education sector. Within the last year, it has undertaken sustainability studies for several schools, including Brown’s Flat Elementary School and Lorne Middle School. Correlatively, its staff prepared a Proposal in favour of closure for the named schools. Each document identifies the factors Policy 409 requires a Council consider when studying a school’s sustainability.

It then explains how several of those factors tend to support the proposals under consideration: school closure and student relocation. The proposals and their rationale were then put through the public consultation process contemplated by Policy 409. Once that process was exhausted, the Council held separate public meetings at which its members voted, by a majority, to recommend closure to the Minister. The councilors did so after the Chair reviewed, for their benefit and the benefit of the public in attendance, a fairly detailed

summary of the factors considered during the public consultation process. [ 8 ] The Minister approved the Council’s recommendations over the respondents’ objections because, in his opinion, procedural fairness had been respected, proper consultation and appropriate consideration of the eight mandatory factors, as required under

section 6.4, had been demonstrated and relevant educational options had been considered.

[ 9 ] In separate decisions, one for the application with respect to Brown’s Flat Elementary School and the other for the application concerning Lorne Middle School, a judge of the Court of Queen’s Bench quashed the Minister’s approval (see Kennedy v. New Brunswick (Minister of Education) , 2015 NBQB 170 , [2015] N.B.J. No. 205 (QL) , the decision in respect of Brown’s Flat Elementary School, and Craft v. New Brunswick (Minister of Education) , 2015 NBQB 171 , [2015] N.B.J. No. 206 (QL) , the decision pertaining to Lorne Middle School) .

The judge concluded that outcome was warranted in respect of both schools because the Council breached the rules of procedural fairness at the final public meeting. It would have done so by failing to deliver, in that forum, reasons that reviewed and “weighted” the eight mandatory factors in arriving at the conclusion that closure was “the optimal available option”. In the case of Brown’s Flat Elementary School, the judge was also swayed by what he perceived to be the Council’s failure to actually consider one of those factors, “economic development”.

In the judge’s view, this failure rendered unreasonable the Minister’s conclusion that there had been both proper consultation and an appropriate consideration of all relevant factors. While these process-related flaws sufficed to compel the quashing of the ministerial approvals, the judge went on to observe that, had it been necessary for him to pass upon the question, he would have found they effectively rendered both ministerial approvals “unreasonable”. [ 10 ] After hearing the parties, and considering the public interest in pronouncing judgment expeditiously, we disposed of the appeal from the bench.

In allowing the Minister’s appeal, we made the following observations: Absent a sufficiently weighty juridical basis for intervention, in a parliamentary democracy, judges, none of whom are elected, must leave standing policy decisions taken by the elected representatives of the people. In [our] respectful view, there is no juridical basis for judicial interference with the Minister’s decision to approve, pursuant to s. 3.1 of the Education Act , S.N.B. 1997, c. E-1.12, the closure of Lorne Middle School and Brown’s Flat Elementary School.

The application judge committed reversible error in quashing the Minister’s approval decisions. We wrapped up the proceedings by indicating more fulsome reasons would follow. [ 11 ] In abridged form, my reasons for allowing the appeal are as follows. The underlying Notices of Application seek orders quashing the Minister’s decisions, not the Council’s recommendations.

Therefore, the core legal question is whether the Minister’s decisions pass muster, a question that stands to be answered bearing in mind the following: (1) no Charter right or obligation is in play; (2) there is no suggestion, let alone evidence, of “bad faith” or other reprehensible conduct on the part of the Council or the Minister; (3) some debate-limiting findings by the application judge are uncontested; and (4) as conceded by the respondents at the hearing, the Minister’s decisions are substantively reasonable. [ 12 ] In the result, these issues remain outstanding: (1) were the ministerial approval decisions authorized at law?; (2) in this regard, does Policy 409 have force of law, such that it is legally binding upon the Minister?; (3) if not, does it nonetheless give rise to “legitimate expectations” on the part of the parents of affected students with respect to the Minister’s decision-making process?; and (4) if so, do the ministerial approval decisions fulfill those expectations? [ 13 ] Regarding the issue of lawfulness, the appropriate standard of review is correctness.

The decisions under review clearly fall within the scope of the authority conferred upon the Minister by s. 3.1 of the Education Act . In this regard, Policy 409 is not “law”. No provision of the Education Act invests the Minister with the power to establish a policy that fetters his discretion to approve a school closure pursuant to s. 3.1. Thus, there is no statutory authority for the understanding that Policy 409 binds the Minister. Specifically, no provision of the Act operates to make the legal efficacy of ministerial approval conditional upon the Council’s compliance with Policy 409.

Nevertheless, were I convinced

section 6.6.2 is legally binding upon the Minister, I would have found his decisions compliant with its dictates. [ 14 ] That said, I agree

section 6.6.2 gives rise to legitimate expectations on the part of the parents of affected students, which include a ministerial commitment to seriously consider withholding approval for any school closure recommendation where: (1) the Council has not respected the rules of procedural fairness, as defined in Policy 409; and (2) all relevant factors and educational options were not discussed during the public consultation process. In my view, when it comes to procedural fairness, the reviewing court does not apply any deferential standard.

It simply determines whether the rules of procedural fairness were respected. That is not the case for the Minister’s other findings. They stand to be reviewed on application of the “reasonableness” standard. II. Context [ 15 ] In most cases, the context, both legal and factual, is critical to a proper understanding of the grounds of appeal, the issues debated on appeal and the basis for the Court’s decision. That is particularly true where, as here, issue is taken with the decision of an

administrative body on the basis of procedural unfairness. [ 16 ] The Minister submits the application judge committed reversible error by: (1) applying a correctness standard of review which, it is contended, is apparent from the judge’s substitution of his opinion for that of the Minister regarding the proper

interpretation of

section 6.5.4 of Policy 409 and the Council’s compliance with its obligations thereunder, and the judge’s failure to approach with the requisite deference the issue of the reasonableness of the Minister’s approval; (2) finding it was unreasonable for the Minister to conclude the Council had considered, in the case of Brown’s Flat Elementary School, all of the study-related factors enunciated in Policy 409; and (3) concluding the Council did not provide, at the public meeting where the councilors, by a majority, voted to recommend closure, an “account of the factors considered” as required by

section 6.5.4. Finally, the Minister advances a fallback position, which is that the judge erred at law in concluding non-compliance with

section 6.5.4 necessarily entails a breach of procedural fairness, let alone one that justifies quashing his approval. [ 17 ] The Council agrees with the Minister’s grounds of appeal. However, its submission focuses primarily on the conclusion it was under a legal obligation to provide “reasons”, as described by the judge, for its recommendations and that it failed to discharge that obligation.

The Council contends it was under no such obligation and that, in any event, adequate reasons were provided for its decisions to recommend the closure of the schools in question. [ 18 ] The respondents readily acknowledge both the Council and the Minister were not actuated by improper motives and that they acted in good faith throughout. They go further by conceding the Minister’s approval of closure was substantively reasonable for both Brown’s Flat Elementary School and Lorne Middle School.

Nonetheless, it is their contention the decisions to quash ought to be confirmed for process-related errors on the Council’s part: (1) reasons were not given by the Council at the last public meeting for its recommendation to close the schools; (2) having regard to the statutory scheme, this failure is a breach of procedural fairness, one that necessitated quashing of the Minister’s approval ; (3) t he Minister’s finding that procedural fairness was followed by the Council is unsustainable; and (4) i n the case of Brown’s Flat Elementary School, the judge’s finding that the Council did not consider the economic impact factor is supported by the record. [ 19 ] Prior to the hearing on appeal, the Court requested submissions regarding the following questions: (1) what is the statutory basis for the legal efficacy of Policy 409?; (2) if s. 6( b.2 ) of the Education Act is relied upon, explain how the “policies” to which reference is made therein can reasonably be interpreted to cover school closures; and (3) if Policy 409 lacks a statutory lifeline, what bearing does that state of affairs have on the validity of the Minister’s approval? [ 20 ] The key parts of Policy 409 are the definition of “procedural fairness”, Appendix C, as it relates to

section 6.4.2, and the following numbered provisions: Procedural fairness refers to the duty of administrative bodies to employ decision- making processes that provide real opportunity for persons whose interests and privileges may be affected to provide input.

This includes certain requirements such as providing the opportunity to affected persons to be heard and for the school district to receive and consider the information before any recommendation is forwarded to the Minister. 6.4 Determining a school’s sustainability 6.4.1 A DEC will advise the Minister in writing when it intends to study a school’s sustainability. This study can include one of several outcomes: maintaining the status quo, repairing the school or closing the school and placing students elsewhere.

Équité de la procédure désigne la responsabilité des organismes administratifs d’adopter des processus de prise de décisions qui permet[tent] un apport réel des personnes dont les intérêts et les privilèges peuvent être touchés. Ceci comprend certaines exigences incluant l’occasion aux personnes concernées de se faire entendre et de fournir aux districts scolaires la possibilité de recevoir et d’examiner l’information avant qu’une recommandation soit soumise au Ministre. 6.4 Déterminer la viabilité d’une école 6.4.1 Le CED doit informer le ministre par écrit de son intention d’étudier la viabilité d’une école.

L’étude peut inclure un résultat parmi plusieurs : maintenir le statu quo, réparer l’école, fermer l’école et placer les élèves ailleurs. 6.4.2 Le CED doit tenir compte des critères

6.4.2 A DEC must consider the following criteria when studying a school’s sustainability. This list does not preclude a DEC from considering other factors relevant to their local circumstances. 1. Low/declining enrolments : impact of declining or low enrolments on the learning environment (Is enrolment reaching a critical threshold or will it be dropping substantially over the next few years?). Enrolment trends and projections must be considered. 2.

Health and Safety : the structural integrity of buildings; indoor air quality and water quality; circumstances that present a significant health or safety threat; fire safety systems and the safety and security of school grounds and play areas. 3. Quality of Education Programs and Services : the appropriateness of facilities for curriculum delivery and student services.

This would include availability of facilities and diversity of educational programs and increased educational opportunities as a result of a closure, enrollment per grade or multi- level class and pupil-teacher ratio at affected schools, as well as the ability to meet the needs of all students, including students with exceptionalities. 4. Transportation : time spent in transit and cost of travel. 5. Finances : the operating costs including staffing and utilities, the physical condition of buildings, considering short and long-term capital costs and modifications required to school(

s) to accommodate transferred students. 6. Impact on the local community : parental involvement and feasibility of continued parental involvement (particularly for elementary pupils), community support, the school’s relationship with the community, the effects on culture and language, consideration of whether the school is the sole school in the community, especially at the elementary level. ci-dessous en étudiant la viabilité d’une école. La liste de critères n’empêche pas le CED d’examiner d’autres facteurs se rapportant à la situation locale. 1.

Baisse des inscriptions ou faible nombre d’inscriptions : impact sur le milieu d’apprentissage. (Le nombre d’inscriptions a- t-il atteint un seuil critique, ou diminuera-t-il de façon importante au cours des prochaines années?) Les tendances et les prévisions en ce qui concerne les inscriptions doivent être prises en compte. 2. Sante et sécurité : l’intégrité structurale du bâtiment; la qualité de l’air intérieur et de l’eau; les situations présentant une menace importante pour la santé ou la sécurité; les systèmes de sécurité-incendie, la sécurité des terrains et des aires de jeux de l’école. 3.

Qualité des programmes et des services éducatifs : pertinence des établissements pour la prestation du programme d’études et les services aux élèves. Cela inclut les installations disponibles, la diversité des programmes éducatifs et l’augmentation des possibilités d’apprentissage advenant la fermeture d’une école, l’inscription par niveau ou de classe multi - niveaux et le ratio enseignant-élèves dans les écoles concernées, ainsi que l’aptitude à répondre aux besoins de tous les élèves, y compris les élèves ayant des besoins particuliers. 4.

Transport scolaire : le temps passé dans des moyens de transport et le coût du transport. 5. Finances : les frais d’exploitation, y compris la dotation en personnel et les services d’utilité publique, l’état des bâtiments, les coûts d’immobilisation à court et à long terme et les modifications nécessaires à l’école ou aux écoles pour accueillir les élèves transférés. 6.

Impact sur la localité : la participation des parents et la faisabilité de la participation continue des parents, surtout à l’école primaire, le soutien de la collectivité, le lien qui unit l’école à la localité et les conséquences sur la culture et la langue et la question de savoir si l’école est la seule dans la collectivité, surtout au niveau primaire. 7. Impact sur d’autres écoles : impact sur les écoles d’où arrivent les élèves et sur les écoles qui les reçoivent.

7. Impact on other schools : impact on feeder schools and receiving schools. 8. Economic development : consideration of planned and future economic development projects in the community or surrounding area. APPENDIX C

Section 6.4.2 – the DEC must demonstrate how the required criteria have been considered (Low/declining enrolments, health and safety, quality of education programs and services, transportation, finances, impact on local community, impact on other schools and economic development), and Provide this information to the public as part of the consultation process. 6.5 Public consultation on a school’s sustainability 6.5.1 A study of a school’s sustainability shall normally be completed within a twelve month period.

Public consultation should not occur over the summer months. 6.5.2 The DEC must ensure that affected persons are informed through public notice (e.g. an ad in the local newspaper, a note sent home to parents of students attending the school in question, PSSC meetings, DEC meetings) of the DEC’s intention to study a school’s sustainability. The notice will include the timeframe for consultation and contact information to obtain details of the process to be followed, as set out in DEC policy. 6.5.3 The DEC will ensure that affected 8.

Développement économique : considération des projets de développement économique prévus et à venir dans la localité OU dans la région environnante.

ANNEXE C

Le paragraphe 6.4.2 stipule que le CED doit montrer comment l’étude tient compte des critères établis (Baisse des inscriptions ou faible nombre d’inscriptions; santé et sécurité; qualité des programmes et des services éducatifs; transport scolaire; finances; incidence sur la localité; incidence sur les autres écoles; développement économique).

Le CED doit communiquer cette information à la population dans le cadre d’un processus de consultation publique. 6.5 Consultation publique sur la viabilité d’une école 6.5.1 L’étude de la viabilité d’une école devrait normalement être effectuée et complétée à l’intérieur d’une période de douze mois.

La consultation publique ne devrait pas avoir lieu pendant les mois d’été. 6.5.2 Le CED doit s’assurer que les personnes concerné[e]s sont informé[e]s au moyen d’un avis public (p. ex. : annonce dans le journal local, note aux parents des élèves qui fréquentent l’école, réunions du CPAE et réunions du CED) de l’intention du CED d’étudier la viabilité d’une école.

L’avis précisera les dates des réunions publiques et les coordonnées des personnes pouvant fournir des renseignements sur la marche à suivre prévue dans la politique sur les CED. 6.5.3 Le CED doit s’assurer que les personnes concerné[e]s : • ont reçu les renseignements se rapportant à la proposition; • disposent d’assez de temps pour examiner les renseignements reçus; • ont la possibilité de présenter un exposé au CED (pour exprimer leur point de vue verbalement ou par écrit) et suffisamment de temps pour le faire et qu’ils bénéficient d’une

persons: • are provided with information relevant to the proposal; • have adequate time to consider the information provided; and, • have adequate time and opportunity to make a presentation to the DEC (i.e. let their views be known either in writing or orally) and are heard impartially at an open DEC meeting. 6.5.4 There will be a minimum of three public DEC meetings on the possible closure - one meeting to inform the school community of the DEC’s intention and the steps to be followed, a second meeting to provide the opportunity to make a presentation (in writing or orally) and a final meeting to provide the public with the results of the consultation, including an account of the factors considered, as per

section 6.4 of this policy, and resulting recommendation being submitted to the Minister. 6.6 Ministerial approval of a school closure 6.6.1 A DEC will inform the Minister in writing of a recommendation to close a school, following the public consultation process. 6.6.2 When notified of a recommended school closure, the Minister will review it in relation to the principles of procedural fairness, with consideration of the factors taken into account during the public consultation process.

The Minister may approve the recommendation or withhold approval if, in the opinion of the Minister, procedural fairness has not been applied or relevant educational options have not been considered. 6.6.3 The Minister shall normally respond to a recommendation to close a school within a period of time no less than 30 days and not exceeding 60 days. 6.6.4 When the Minister has approved a school closure, the DEC shall inform parents of the relocation of students.

Sufficient notice écoute impartiale aux réunions publiques du CED. 6.5.4 Le CED doit tenir au moins trois réunions publiques sur la fermeture possible de l’école - la première réunion vise à informer la communauté scolaire de l’intention du CED et des étapes à suivre; la deuxième donne la possibilité d’effectuer une présentation (écrite ou orale); la dernière sert à communiquer à la population les résultats du processus de consultation et les recommandations soumises au ministre, conformément au point 6.4 de cette politique, de même qu’un aperçu des prochaines étapes à suivre dans le processus. 6.6 Approbation ministérielle d’une fermeture d’école 6.6.1 Le CED informera le Ministre par écrit de sa recommandation de fermer une école, suivant le processus de consultation publique. 6.6.2 Lorsqu’il reçoit une recommandation visant la fermeture d’une école, le Ministre doit l’examiner en fonction des principes de l’équité de la procédure, en considérant les facteurs pris en compte pendant le processus de consultation publique.

Le Ministre peut approuver la recommandation, ou il peut la rejeter si, à son avis, les principes de l’équité de la procédure n’ont pas été respectés ou si les options éducatives pertinentes n’ont pas été considérées. 6.6.3 Le Ministre doit normalement donner sa réponse à une recommandation de fermeture d’école entre le 30 e et 60 e jour suivant la réception de celle-ci. 6.6.4 Après que le Ministre a approuvé la fermeture d’une école, le CED doit aviser les parents des transferts des élèves.

Un préavis suffisant doit être fourni pour permettre aux élèves transférés et à leur famille de participer pleinement aux activités et aux programmes offerts dans la nouvelle école. 6.6.5 Lorsqu’une école est fermée de façon permanente, le numéro unique à quatre chiffres assigné par la Direction de la gestion et de l’analyse des données ministérielles de la Division des politiques et de la planification du ministère de l’Éducation n’est pas réutilisé pour une autre école.

must be provided to permit relocated students and their families to participate fully in the programs and activities offered in the new school. 6.6.5 When a school is permanently closed, the unique, four-digit school number assigned by the Corporate Data Management and Analysis Branch of the Policy and Planning Division at the Department of Education is not used again for another school. 6.6.6 When a school [which] has been approved for closure by the Minister is unoccupied and is no longer needed by the school district, it shall be deemed surplus by motion of the DEC.

The DEC shall contact the Department to arrange a mutually agreeable date for the transfer of responsibility for the asset. 6.6.6 Lorsqu’une école dont la fermeture a été recommandée par le Ministre est vacante et que le district scolaire n’en a plus besoin, elle doit être jugée excédentaire sur une motion du CED.

Le CED doit communiquer avec le ministère afin d’établir une date convenable à tous pour le transfert de la responsabilité du bien immobilier. [ 21 ] Cuts to the Council’s budget for the 2015-2016 school year compelled a review of its operations to identify areas where reductions in operating costs could be achieved and to determine whether capital costs could be avoided. Clearly, atrophied funding from the Department was the catalyst for the Council’s initiation of the process envisaged by Policy 409 as the prelude to a closure recommendation.

(1) Lorne Middle School [ 22 ] Students attended Lorne Middle School for grades 6-8. The school was built in 1958, and was expanded and renovated in the 1980s following a fire. [ 23 ] Since 1997, enrolment has declined by 75%. At the time of the Council’s sustainability study, the school had 50 students enrolled, which was 21% of its 235-student capacity. [ 24 ] The decision to close Lorne Middle School followed a six-month process under Policy 409 beginning in October 2014. (

a) Decision to Study School Sustainability [ 25 ] At a District Education Council meeting on October 8, 2014, the following motion was passed: Council direct the Superintendent to inform Minister Rousselle that we intend to study School Sustainability for Lorne School in the Saint John North end. This will allow us under the department’s Policy 409 – Multi Year School Infrastructure Planning – to begin the public consultation process to gather community and stakeholder input to the recommendation. In a letter dated October 17, 2014, the Superintendent advised the Minister the Council intended to conduct a school sustainability study for Lorne Middle School.

[ 26 ] On October 25, 2014, and November 1, 2014, a notice entitled “School Sustainability Reviews and

Schedule of Public Consultations” was published in the Telegraph Journal providing the following information: The Anglophone South District Education Council (DEC) will host a series of Public Consultations as per Provincial Policy 409 Multi- Year School Infrastructure Planning to study the sustainability of five schools: St. Patrick’s School, Seawood School, Havelock School, Lorne Middle School and Pennfield Elementary School. Under policy 409, the DEC will be holding two public information sessions at each school subject to the review.

We will be holding initial meetings at each of the five schools to deliver the proposal to the public. The initial meetings are to allow the DEC and staff to explain the process involved in a Policy 409 review, present the proposal and be available to answer questions about the process. A second meeting at each school will be scheduled at a later date to allow the public an opportunity to ask questions about the proposal, voice their concerns and provide feedback to the review. The first series of meetings are scheduled as follows: Wednesday, Nov 5 St.

Patrick’s School 7pm (at Havelock School) Monday, Nov 10 Seawood School 7pm Monday, Nov 17 Havelock School 7pm Tuesday, Nov 18 Lorne Middle School 7pm Monday, Nov 24 Pennfield Elementary School 7pm Everyone is welcome to attend, and encouraged to do so. Throughout this process, written feedback can be submitted via email to: asds.schoolreview@gnb.ca or you may send a letter to the attention of Robert Fowler, Chair, District Education Council, 490 Woodward Avenue, Saint John, NB E2K 5N3.

I should note for the sake of completeness that the record does not feature, as it does for Brown’s Flat Elementary School, a letter from the District Superintendent to the parents of affected students reprising the information relayed by the notice published in the Telegraph Journal . However, in my view, nothing turns on this difference. (

b) First Public Meeting [ 27 ] The first meeting took place on November 18, 2014, and was attended by some 80 persons, including school community members, current and former students, politicians, and media representatives. The Chair explained the process involved in a Policy 409 review and answered questions on the subject. A PowerPoint presentation entitled “Proposal for School Closure and Consolidation – Lorne School” reproduced the key provisions of Policy 409, including

section 6.4.2, which specifies the eight factors the Council “must consider […] when studying a school’s sustainability”. It went on to describe the proposal recommended by Council staff, the closure of Lorne Middle School and the relocation of the students to another facility, preferably Princess Elizabeth School, and to articulate the case for that proposal by reference to several of the factors mentioned above:

Determining a School’s Sustainability 6.4.2 A DEC must consider the following criteria when studying a school’s sustainability. This list does not preclude a DEC from considering other factors relevant to their local circumstances. ➢ 1. Low/declining enrolments: ➢ 2. Health and Safety: ➢ 3. Quality of Education Programs and Services: ➢ 4. Transportation: ➢ 5. Finances: ➢ 6. Impact on the local community: ➢ 7. Impact on other schools: ➢ 8. Economic development: Policy 409 –

Section 6.5 Public Consultation on School’s Sustainability 6.5.3 The DEC will ensure that affected persons: ➢ are provided with information relevant to the proposal; ➢ have adequate time to consider the information provided; and ➢ have adequate time and opportunity to make a presentation to the DEC (i.e. let their views be known either in writing or orally) and are heard impartially at an open DEC meeting. Policy 409 –

Section 6.5 Public Consultation on School’s Sustainability 6.5.4 There will be a minimum of three public DEC meetings on the possible closure – one meeting to inform the school community of the DEC’s intention and the steps to be followed, a second meeting to provide the opportunity to make a presentation (in writing or orally) and a final meeting to provide the public with the results of the consultation, including an account of the factors considered, as per

section 6.4 of this policy, and resulting recommendation being submitted to the Minister. Policy 409 –

Section 6.6 Ministerial Approval of a School Closure ➢ 6.6.1 A DEC will inform the Minister in writing of a recommendation to close a school, following the public consultation process. ➢ 6.6.3 The Minister shall normally respond to a recommendation to close a school within a period of time no less than 30 days and not exceeding 60 days. Lorne [Middle] – Background

➢ 6-8 Middle school built in 1958 ➢ School was rebuilt and additional space added after a fire in 1985 ➢ Enrolment declined by 75% since 1997 ➢ 50 students enrolled as of Sept. 2014 ➢ Max capacity for Lorne is 235 students ➢ Lorne is currently running at 21% of capacity (lowest in the district) ➢ Lorne has a single gym ➢ Lorne is handicapped accessible ➢ A community centre run by the City of SJ is attached to Lorne ➢ Lorne does not have a playfield, however they can access fields owned by the City of SJ (Shamrock or field by St.

Peter’s Church) ➢ Lorne has minimal green space but has an asphalt play area ➢ Parking around the school is limited Lorne Staffing STAFFING: Description FTE’s (Full Time Equivalents) ➢ Teacher FTE’s 4.70* ➢ Clerical Staff .86 ➢ Custodial 2.00 ➢ EA’s/School Intervention Worker 4.00 ➢ Community School Coordinator .50 (shared with PES) * (including admin., additional teacher added by EECD Sept. 2014) Lorne Middle Capital Improvement Projects Completed Project Cost ➢ Roof replacement (2000) $66,525 ➢ Heating and ventilation upgrade (2006) 7,125 Total $73,650 Lorne Middle Capital Improvement Projects Required Project Cost ➢ Site improvement – courtyard expansion

and repaving $ 60,000 ➢ Building envelope – exterior walls repointing & repairs 300,000 ➢ Building envelope – exterior window replacement 275,000 ➢ Building envelope – roof replacement 200,000 ➢ Water supply and sewer – piping upgrade 20,000 ➢ Heating & ventilation – upgrade and controls added 40,000 Total $895,000 Lorne Middle Annual Operating Costs 2013/2014 ➢ Light & power $35,175 ➢ Heating fuel 27,312 ➢ Minor repairs 5,395 ➢ Sewage & water 13,402 ➢ Garbage removal 4,287 Total $85,571 Scenario 1: Close Lorne and move students to Millidgeville North ➢ 3-8 English, 3-5 EFI [Early French Immersion] built in 1967 ➢ Millidgeville North – 4.20 kms from Lorne ➢ Minimal excess capacity due to Office of the Superintendent, Saint John Education Centre, Early Childhood Staff and Sistema using school space ➢ Therefore, due to lack of space and distance from Lorne, Millidgeville North would not be recommended as a possible scenario Scenario 2: Close Lorne and move students to Centennial Elementary ➢ Centennial Elementary is 1.03 kms from Lorne

➢ Centennial has excess capacity ➢ Capital investment would be required to upgrade classrooms and bathrooms to middle school specs ➢ Centennial does not have a playfield but nearby City owned ball field is often used ➢ Bus zone for Centennial would have to be expanded to include Lorne middle students ➢ Small number of middle school students would make it difficult to offer full school program at Centennial ➢ Therefore, Centennial would not be recommended as an option Scenario 3: Close Lorne and move students to Princess Elizabeth K-8 ➢ Princess Elizabeth is 1.55 kms from Lorne ➢ Princess Elizabeth has excess capacity ➢ No major capital investment would be required except handicapped accessibility ($240,000), on list for summer 2015 completion ➢ Significant improvements made to PES ➢ Princess Elizabeth has a playfield ➢ Princess Elizabeth bus zone already includes Lorne area due to LFI so no changes required ➢ All middle schools in one school provides more opportunities (i.e. full middle school programs, sports, clubs, etc.) for all students Princess Elizabeth School – Background ➢ K-8 and 6-8 LFI school built in 1949 ➢ Enrolment declined by 20% since 1997 ➢ Current enrolment, Sept. 2014 is 415 ➢ Max capacity for Princess Elizabeth is 550 students ➢ Has a playfield and two outdoor classrooms ➢ Has two playgrounds plus new green space with basketball court and outdoor bleachers ➢ Double gym with a stage ➢ Sufficient parking in front and overflow space in back ➢ Major capital investment in the school over the last 15 yrs. ➢ School will be handicapped accessible summer 2015 Princess Elizabeth School ➢ The following slide lists many of the programs offered at Princess Elizabeth School.

This is intended to provide families information about Princess Elizabeth School. The District recognizes that many programs and activities are offered by

the staff and partners at Lorne Middle School as well. Princess Elizabeth School School Activities and Support Programs ➢ Clubs – International, Drama, Photography, Guitar, Tech, Chess, Band, Babysitting Course, Peer Helpers ➢ Sports – full noon intramural programs, Fit Club, Badminton Club, teams for both boys & girls ➢ Middle School outdoor green space – field, track and basketball court ➢ Healthy snacks – in morning and through the day ➢ Lunch program for students without ➢ Partnerships – NBCC free transportation to after school programs – C.E.

Nick Nicolle Community Centre, Builders Club & Kiwanis ➢ Big Brother/Big Sister mentoring ➢ Go Girls Club & Gurls Work ➢ Hanging with the Guys Club ➢ School raised funds to sponsor students (extra-curricular activities) ➢ Receive donations of coats, mitts, scarves, etc.

Princess Elizabeth School Staffing STAFFING: Description FTE’s ➢ Teacher FTE’s 30.70* ➢ Clerical Staff 1.50 ➢ Custodial 3.50 ➢ EA’s 9.00 ➢ School Intervention Worker 1.00 ➢ Community School Coordinator .50 (shared with Lorne) Total 46.20 * (including admin., resource, guidance, etc.) Princess Elizabeth School Capital Improvement Projects Completed Project Cost ➢ Roof replacement (2013, 14) $129,571

➢ Electrical service entrance upgrade (2000) 75,413 ➢ Fire integrity (2000) 45,698 ➢ Heating and ventilation – boiler and exhaust (2000) 42,766 ➢ Building envelope – ext. windows & doors (2009, 10, 11) 348,901 ➢ Water & sewer – washroom upgrade (2009, 10, 12) 178,413 ➢ Building envelope – access (2013) 2,730 ➢ Building envelope – masonry repairs/ repointing (2014) 139,748 Total $963,240 Repurpose of Lorne School: ➢ School District would be willing to sit with community partners to discuss possibilities ➢ For example, had discussions with Horizon Health about Community Health Centre ➢ If Lorne is no longer a school, it would then fall under the responsibility of the Dept. of Transportation and Infrastructure Thank You for Attending! ➢ Next meeting – Jan. 8, 2015 ➢ This presentation will be posted to ASD-S website at: http://web1.nbed.nb.ca/sites/ASD-S/ Written feedback can be submitted: ➢ via email to asds.schoolreview@gnb.ca ➢ Or send a letter to the attention of: Robert Fowler, Chair District Education Council 490 Woodward Avenue Saint John, NB E2K 5N3 [ 28 ] On November 29, 2014, and January 3, 2015, a notice was published in the Telegraph Journal indicating the time and location of the second meeting.

[ 29 ] In addition, by letter dated December 17, 2014, the Council’s Chair provided the parents of affected students with the following information: This letter is a follow-up to reminders from your Principal, Greg Norton, about a meeting on Thursday, January 8th at Lorne Middle School at 7 p.m. As you are aware, the District Education Council is hosting a series of public meetings for parents regarding the sustainability of your school.

We are following Policy 409 of the Department of Education and Early Childhood Development, http://www.gnb.ca/0000/pol/e/409A.pdf which states that we must have three public meetings to discuss any school closure. The first meeting for Lorne Middle School was held at the school on November 18, 2014. At that meeting I outlined the process Council must follow with Policy 409, and District staff talked about the options for Lorne Middle School.

The power point used that evening can be found on the Anglophone South website at www.asd-s.nbed.nb.ca The main page has a news item entitled “School Sustainability Reviews & Public Consultations”. Click “Read More” and it is the “Proposal for School Closure and Consolidation – Lorne School.” If you do not have access to our website, please let the school know and we can provide a copy for you. Our second meeting is Thursday, January 8, 2015 at Lorne Middle School at 7:00 p.m. This meeting is an opportunity to make a presentation to the DEC or to provide feedback.

If you wish to present, please contact our Recording Secretary, Clare Murphy at 658- 5325 or clare.murphy@gnb.ca prior to 4:00 pm, Wednesday, January 7 th . We will ensure everyone has time to speak to us. You are also welcome to write to me at the above address or you can send any comments to the following email: asds.schoolreview@gnb.ca (

c) Second Public Meeting [ 30 ] The second meeting, which was equally well attended, took place on January 8, 2015. It provided an opportunity for questions about the proposal and its rationale as well as presentations in favour of other educational options. [ 31 ] Five scheduled speakers addressed the group to express opinions about the proposed closure of the school.

The respondent Ken Craft, the Chair of the Lorne Middle School Parent School Support Committee, made a submission that retraced the history of concerns over the sustainability of Lorne Middle School: In 2008, our oldest son began grade six at Lorne Middle School. This was the same year that the District decided to launch a Policy 409 review of Lorne. The plan was to close both Lorne and Hazen-White and bus these students to a newly created English language middle school at Millidgeville North.

Much of the impetus for this move came from a group of parents in Millidgeville who no longer wanted their children studying in the Old North End. I was contacted by them in my capacity as Chair of the Centennial Parent School Support Committee. They wanted me to support closing Lorne Middle School. They received a shock when I informed them that I would be actively opposing the proposal. The process unfolded in an almost inevitable fashion.

The District Education Council gave precedence to the wishes of parents from an affluent neighbourhood at the expense of parents in priority neighbourhoods, and voted to close Lorne and Hazen White- St. Francis and send the middle students to Millidgeville North. The proposal was sent on to the Education Minister, Kelly Lamrock, who rejected the proposal because he recognized that Lorne Middle School was integral to the revitalization of the Old North End. What was true in 2008-9 remains true in 2015. However, the story didn’t end there. The Millidgeville parents proved to be a powerful lobby.

At the stroke of a pen, the Superintendent redrew the school boundaries creating a new English language middle school at Millidgeville North and shrinking Lorne Middle school’s population by over two thirds. Now, the current District Education Council proposes to close Lorne because it has too few students, a situation that was created by a previous Superintendent with the acquiescence of her DEC in opposition to the Minister’s wishes. If the current Superintendent and DEC want to show leadership, they can with a stroke of a pen redraw the school catchment zone to its previous boundaries.

This would be the best usage of one of the best school infrastructures in the District. This brings us to the present. Our youngest son is in grade seven at Lorne experiencing an incredible education and vibrant extra- curricular experience. Despite having a small staff, Lorne students have an experience that rivals that of school many times its size. Pound for pound Lorne Middle School punches well above its weight. And I am not just referring to the fact that the students have had the chance to experience Golden Gloves Boxing this year. So what should be done with Lorne Middle School?

It is strange that Policy 409 addresses school sustainability studies. There has been no attempt on the part of the District to examine scenarios that would make Lorne Middle School more sustainable. Instead they

examined three options that would include closing Lorne Middle School. They examined and rejected proposals to send the students to Millidgeville North or Centennial School. The proposal they are making is to close Lorne Middle School and ship the students to Princess Elizabeth School, an older school that several years ago was on the DEC’s wishlist to be torn down and replaced. As well, middle school education is best delivered in an exclusive middle school environment (6-8). Other grade configurations, lead to a less than ideal middle school experience.

The DEC and Superintendent need to show some leadership in sustaining one of the best school infrastructures in the District. This can be accomplished by redrawing the school boundaries to their pre September 2009 limits. This would more than triple Lorne’s population and place it in the optimum level for middle school education. This would also allow children from a priority neighbourhood to study close to home. If the DEC is unwilling to take this step, I would suggest that they suspend their policy 409 review of Lorne for one year.

During this time, the DEC should lead a consultation to create a coordinated plan for middle school education in the district. As well, Lorne would remain staffed at the 2014-5 level. The current and proposed middle school configurations are not serving the best interests of students in priority neighbourhoods. We need some leadership. It is easy to propose closing a small school in a priority neighbourhood. We saw quite clearly in 2008-9 that money talks. It’s Lorne this year and Hazen-White next year. Public education is not about giving in to the wishes of the rich.

Instead it is about providing a high quality education for all of the citizens of New Brunswick. I urge the members of the District Education Council to do the right thing, and keep Lorne Middle School open. Following this, the floor was opened for further comments, during which time eight non-scheduled speakers were heard, and spoke to a number of specific concerns. [ 32 ] Subsequently, Council staff prepared a document entitled “Summary of Policy 409 Consultations Lorne Middle School November 2014 – January 2015”.

It sets out the gist of the comments, questions and submissions put to the Council in the course of the second public meeting regarding each of the eight criteria prescribed by

section 6.4. (

d) Third Public Meeting [ 33 ] A third meeting took place on March 19, 2015. After reviewing the

Summary of Policy 409 Consultations for Lorne Middle School, the Chair invited comments from the councillors. Those comments are summarized in point form in the minutes of the meeting: - This is a big decision for the neighbourhood; goes back to the 2008 re-drawing of the boundaries which negatively affected Lorne; teachers/principal do a great job – this is not a reflection on them; there are advantages to attending a larger school – both schools would benefit. - Concern over the Community School Coordinator – would it be .5 Lorne and .5 PES? - It is a choice between programs, people and facilities.

It is important to keep as many programs as possible. - Students will move from Lorne to Princess Elizabeth – give them a choice to come to Millidgeville if they want. Student transfers should be clearly explained to parents if they want to go to another school. Waive the condition that they supply their own transportation and if the class fills, they move out (flexibility on these if possible). Mr. Fowler [Chair] advised that this could be difficult, as there would not be an FTE to create another class for these students. Mrs.

Watson [District Superintendent] advised that transportation could be looked at, but no guarantees. - Students will adapt – it is the adults who fear this change. Not in agreement with this closure – need to make the right decision for the community. It is a good facility and we should keep it. Something better can be done. - There is a greater plan to be looked at. This is premature. - This is a sad thing to do for the school and for Saint John. There are very passionate people in favour of keeping the school open. That area is not expanding.

We are not doing a service to the kids keeping such a small group in a large facility. - We need to be realistic. What is best for Anglophone South School District students? With the money that we have to run this District – people, programs, facilities – this is the lesser of three evils. It is the best decision based on experience for our students. Students are more important than buildings.

- We need to be strategic. Who else can make the best plan – not always do it the way it has been done. [ 34 ] A motion was then passed by a majority directing the Superintendent to inform the Minister of the Council’s recommendation to close Lorne Middle School, effective June 30, 2015. (

e) Recommendation and Supporting Documentation [ 35 ] In a letter dated March 20, 2015 jointly signed by the Chair and the District Superintendent, the Minister was notified of the Council’s recommendation to close Lorne Middle School, effective June 30, 2015. The authors advised the Minister the recommendation was a difficult decision that followed “a careful review of all information received during public consultation sessions and provided by District staff”. The letter was accompanied by a binder that included, inter alia :

(1) The PowerPoint presentation detailing the proposal for closure and student relocation; (2) the written submissions delivered by or on behalf of the parents of affected students at the second public meeting; (3) correspondence to parents; (4) meeting notes for each public session; and (5) the

Summary of Policy 409 Consultations. [ 36 ] In a letter dated March 23, 2015, the District Superintendent informed the parents of the following: As you are aware, the District Education Council (DEC) of Anglophone South School District has been following the Provincial Policy 409 – Multi-year School Infrastructure Planning to review the sustainability of Lorne Middle School. The first public meeting was held at the school on November 18, 2014 where our DEC Chair, Rob Fowler, outlined the process Council must follow with Policy 409 and District staff talked about the plan for Lorne Middle School.

The second public meeting was held on January 8, 2015 and members of the public had an opportunity to make a presentation to DEC and provide their feedback on the proposed changes. Following this meeting, all information gathered during the public consultation sessions and from District staff was carefully reviewed by DEC. During the most recent DEC meeting held on March 19, 2015, Council voted to recommend to the Minister of Education and Early Childhood Development the closure of Lorne Middle School effective June 30, 2015 .

In line with Policy 409, this recommendation must now be sent to the Minister of Education and Early Childhood Development for his review and approval. By policy, the Minister has a minimum of 30 days and no more than 60 days to respond. I will write to you again upon word from the Minister. With this decision, the sustainability study of Lorne Middle School is now complete. Should the Minister approve the recommendation of the DEC, we will work diligently to provide a smooth and welcoming transition for your children as they prepare for and begin attending a new school.

I wish to thank you for your interest in this study and your continued commitment to your child’s education. [Emphasis added.] I note, for the sake of thoroughness, that the record does not include such a letter for Brown’s Flat Elementary School. Once again, in my view, nothing turns on this difference in the records. (

f) Departmental Review [ 37 ] The Department of Education conducted a “policy/compliance” review of the materials provided in connection with the District Education Council recommendation. The Department concluded:

Further to the technical review as well as the policy review, it is recommended that the Minister support the following District Education Council recommendations: That the Council direct the Superintendent to inform Minister Rousselle that we recommend the closure of Lorne Middle School, effective June 30, 2015. […] […] Although the Chair of the PPSC raised issues of procedural fairness in the media and in a letter to the Minister in regards to not discussing options other than a school closure and some criteria not being properly analyzed, the District Education Council did the proper analysis and followed the steps and requirements of the policy. (

g) Minister’s Approval [ 38 ] In a July 15, 2015 affidavit filed in opposition to the application in the Court of Queen’s Bench, the Executive Director of the Policy and Planning Division of the Department of Education and Early Childhood Development asserts the following: 23.

I am advised by the Minister, and do verily believe, that in and around March 20, 2015 he was provided with a copy of the letter from the Applicable DEC dated March 20, 2015, and the enclosed package of material relating to the sustainability study of Lorne Middle School (Exhibit “J”) to review in relation to the Applicable DEC’s recommendation for the closure of Lorne Middle School. 24.

I am advised by the Minister, and do verily believe, that, immediately upon receiving the letter from the Applicable DEC dated March 20, 2015, and the enclosed package of materials relating to the sustainability study of Lorne Middle School, the Minister carefully reviewed each and every item in Exhibit “J”. 25. Attached and marked as Exhibit “K” is a copy of the letter dated April 8, 2015 to the Minister from the Applicant, Ken Craft, wherein Mr.

Craft raised a number of alleged issues regarding procedural fairness and public policy that he felt should be considered in the Minister’s review of the Applicable DEC’s recommendation. 26. Attached and marked as Exhibit “L” is a copy of the letter dated April 22, 2015 to Mr. Craft from the Minister wherein the Minister stated the following: In accordance with Policy 409 Multi-year School Infrastructure Planning, I will review the DEC’s recommendation in relation to the principles of procedural fairness, with consideration of the factors taken into account during the public consultation process.

I may approve the recommendation or withhold approval if, in my opinion, procedural fairness has not been applied or relevant education options have not been considered. 27. Attached and marked as Exhibit “M” is a copy of an email dated April 22, 2015 to the Minister from Dr. Lee Chalmers. I am advised by the Minister, and do verily believe, that he reviewed the email and the attached document from Dr. Chalmers prior to rendering his decision in relation to the Applicable DEC’s recommendation to close Lorne Middle School. 28.

Attached and marked as Exhibit “N” is a copy of: • the Briefing Note; • the Ministerial Compliance Review; and • package of news articles related to the sustainability study of Lorne Middle School.

29. As part of the departmental due diligence and advice to the Minister, the above-noted documents (Exhibit “N”) were prepared and gathered by staff members of the Department to track the criteria and processes to assess whether the elements set out in the Applicable Policy 409 had been followed. 30.

I am advised by the Minister, and do verily believe, that prior to making his decision in relation to the Applicable DEC’s recommendation for the closure of Lorne Middle School, the Minister once again carefully examined each and every item in the package of materials relating to the sustainability study of Lorne Middle School (Exhibit “J”), in addition to the Briefing Note, the Ministerial Compliance Review and the package of news articles related to the sustainability study of Lorne Middle School (Exhibit “N”). [ 39 ] By letter dated April 24, 2015, the Minister advised the Council’s Chair and the Superintendent he was approving the recommendation to close Lorne Middle School, effective June 30, 2015 for the following reasons: I am writing in response to the District Education Council’s recommendation to close Lorne Middle School.

Upon careful review of the Information provided in support of the recommendation, I am satisfied that procedural fairness has been respected. Proper consultation and appropriate consideration of the eight criteria, as required in

section 6.4.4 of Policy 409 Multi-year School Infrastructure Planning , was demonstrated as well as relevant education options were weighed. As such, I am approving the recommendation to close Lorne Middle School. I would like to extend my sincere appreciation to the DEC as well as staff at the school and school district for their work on this file. [Emphasis added.]

(2) Brown’s Flat Elementary School [ 40 ] Brown’s Flat Elementary School housed students from kindergarten to grade 5. Since 1999, enrolment has declined by 52%. During the Council’s sustainability study, 43 students were enrolled, being 36% of Brown’s Flat Elementary School’s 121-student capacity. [ 41 ] The decision to close the school followed a four-month public consultation process that began in February 2015. (

a) Decision to Study School Sustainability [ 42 ] At a District Education Council meeting on February 11, 2015, the following motion was approved with respect to Brown’s Flat Elementary School and Norton Elementary School: Council direct the Superintendent to inform Minister Rousselle that we intend to study School Sustainability for Brown’s Flat Elementary School and Norton Elementary School. This will allow us under the department’s Policy 409 – Multi Year School Infrastructure Planning – to begin the public consultation process to gather community and stakeholder input to the recommendation.

I pause to note the Council eventually recommended against the closure of Norton Elementary School. [ 43 ] By letter dated February 12, 2015, the Council advised the Minister of its intention to conduct a school sustainability study for Brown’s Flat Elementary School. By letter bearing the same date, the District Superintendent provided the following advice to the parents of affected students: On February 11, 2015 the Anglophone South School District Education Council (DEC) voted in favour of engaging in a sustainability

study under the process outlined in the Department of Education and Early Childhood Development Provincial Policy 409: Multi-year Infrastructure Planning. The sustainability study follows a process that includes three public meetings. The first public meeting will be held on March 12, 2015 at 7:00 pm at the Brown’s Flat School. This meeting will be for a presentation of facts about Brown’s Flat School and information on the proposal the DEC is considering.

The second public meeting will occur in early April, 2015 and will allow for interested individuals, stakeholders and parties to present information to be considered in the decision-making process. This meeting will start at 7:00 p.m. and also be held at Brown’s Flat School. A registration process for this meeting will be shared following the first meeting. The third public meeting will occur on Wednesday, April 29 at a special meeting of the District Education Council in the Saint John Office.

If the DEC recommendation is to close Brown’s Flat School, the Minister of Education and Early Childhood Development must approve the decision. Policy 409 can be found by going to the Government of New Brunswick website ( www.gnb.ca ) and choosing the Department of Education and Early Childhood Development site under “Departments”. Under the title, “Information”, you can choose “Policies”, and this will bring you to a selection of policies, including Policy 409. The direct link to the Policy is http://www.gnb.ca/0000/policies.asp .

This information is in the media so we wanted to provide this letter to explain the process and timeline. More information will be available at the meetings. [ 44 ] On February 24, 2015, and March 7, 2015, a notice was published in the Telegraph Journal indicating the date, time and location of the first public meeting. (

b) First Public Meeting [ 45 ] The first meeting was held on March 12, 2015. Its stated purpose was to provide an opportunity for the Council to set out pertinent facts about Brown’s Flat Elementary School and to make a presentation regarding the proposal it was considering.

During that meeting, the Chair explained the process dictated by Policy 409 and Council staff used a PowerPoint presentation: (1) to outline the proposal under consideration, the closure of Brown’s Flat Elementary School and the relocation of the students to Westfield Elementary School; and (2) to articulate its rationale by reference to several of the factors prescribed by Policy 409.

The presentation, which is entitled “School Sustainability Study – Brown’s Flat Elementary”, was made to an audience of over 200 people, including community members, current and former students, politicians and media representatives. Significantly, the presentation reproduces the key provisions of Policy 409, including

section 6.4.2, which states the Council “must consider” the eight factors mentioned above when studying a school’s sustainability: Brown’s Flat – Background ➢ K-5 Elementary school built in 1987 ➢ Max capacity for Brown’s Flat is 121 students ➢ 43 students enrolled as of Sept. 2014 ➢ Brown’s Flat is at 36% of capacity as of Sept. 2014 ➢ Enrolment has declined by 52% since 1999 (47 students) ➢ Brown’s Flat does not have Early French Immersion (EFI) ➢ For EFI, students go to Westfield Elementary ➢ Brown’s Flat students proceed to River Valley Middle then Saint John area for High School

➢ Brown’s Flat has a multi-purpose type gym ➢ Brown’s Flat has a new playground and sufficient green space ➢ Brown’s Flat has sufficient parking ➢ Brown’s Flat is wheelchair accessible Brown’s Flat Staffing STAFFING: Description FTE’s (Full Time Equivalents) ➢ Teacher FTE’s 4.60* ➢ Clerical Staff 1.00 ➢ Custodial .80 ➢ Educational Assistants 3.00 Total 9.40 *includes Principal Brown’s Flat – Capital Improvement Projects Completed Project Cost ➢ Heating & Ventilation (2006) $ 6,875 ➢ Roof replacement (2003) 40,458 Total $47,333 Brown’s Flat – Capital Improvement Projects Required Project Cost ➢ Site improvement – asphalt and drainage $100,000 Brown’s Flat Elementary – Annual Operating Cost 2013/14: Light, power and heat $ 21,485 Minor repairs 3,807 Snow plowing 3,420

Garbage removal 1,607 Sub-total $ 30,319 School Instructional Budget 9,652 School Salaries & Benefits 618,000 Total Yearly Operating Costs $657,971 Proposal: Close Brown’s Flat Elementary ➢ Students could be moved to Westfield Elementary ➢ Westfield Elem. is 18 kms away from Brown’s Flat Elem. ➢ Westfield is K-5 Elementary built in 1951 ➢ Max capacity for Westfield is 508 students ➢ 284 students enrolled as of Sept. 2014 ➢ Westfield has Early French Immersion (EFI) ➢ Westfield is wheelchair accessible main level ➢ Westfield has full sized gym ➢ Westfield has two modern playgrounds in good condition with rubberized ground cover under some equipment ➢ Westfield has sufficient green space around the school including outside learning area and sufficient parking Brown’s Flat – Examples of School Activities and Support Programs ➢ Student Teams – announcements, weather report, playground pals, assemblies, reading buddies and clubs. ➢ Family Services preschool group meets on Wednesdays offering educational and social programming for preschool children and their parents ➢ Breakfast for Learning ➢ Principal’s Pat on the Back, Numeracy Nights, We Love Our Community Night, Thank You Assemblies ➢ Friday Family Fun Night Sock-Hops, Pancake Breakfasts Westfield Elementary – Examples of School Activities and Support Programs ➢ Intramurals school activities grades 3-5 (sports at lunch) ➢ Family movie night (last Friday of every month) ➢ Home and School – hot lunch program ➢ Active PSSC ➢ Community school rentals – basketball and Tae Kwon Do ➢ PALS School ➢ Marigolds ➢ After school program 2:10 – 6:00 pm

Comparison of Programs – Brown’s Flat & Westfield Elementary ➢ Brown’s Flat: ➢ Intramurals 2-5 (recess & lunch) ➢ Student led clubs – 5 weeks sessions ➢ Positive learning activities ➢ Wits program ➢ Playground pals ➢ Bucket filling ➢ Caught living the code ➢ Be statements ➢ Hot lunch ➢ Active Home & School ➢ Family fun night ➢ Choir, Ukulele Club, Artist in Residence ➢ Westfield Elementary: ➢ Intramurals 2-5 (recess & lunch) ➢ Friday school activities & clubs (Nov. to Feb.) ➢ Positive learning activities ➢ Wits program ➢ Peer helper ➢ Bucket filling ➢ Kindness club ➢ Be statements ➢ Hot lunch ➢ Active Home & School ➢ Family movie night ➢ Musical/talent show Transportation ➢ 96% of Brown’s Flat students go on a bus ➢ Busses from Westfield/Grand Bay area are already in place to serve Brown’s Flat or Middle School or EFI ➢ Avg. increase in travel distance to Westfield is 18 kms ➢ Avg. increase in time spent on bus is 24 min. ➢ Total trip time for majority of students will be mid-20’s to mid-30’s ➢ Max time spent on the bus will around 45 minutes ➢ all routes will be evaluated to find efficiencies and reduce travel times where possible Re-purpose of Brown’s Flat School: ➢ School District would be willing to sit with community partners to discuss possibilities ➢ If Brown’s Flat is no longer a school, it would then fall under the responsibility of the Dept. of Transportation and Infrastructure (DTI) Thank You for Attending! ➢ Next meeting – scheduled for April 7 th ➢ This presentation will be posted to ASD-S website at http://web1.nbed.nb.ca/sites/ASD-S/ Written feedback can be submitted:

➢ via email to asds:schoolreview@gnb.ca ➢ Or send a letter to the attention of: Robert Fowler, Chair District Education Council 490 Woodward Avenue Saint John, NB E2K 5N3 As promised at the meeting, the PowerPoint presentation was posted on the Council’s website. [ 46 ] In a March 23, 2015 letter to the parents of affected students, the Council’s Chair provided the following information: This letter is a follow-up to reminders from your Principal, Megan Donovan, about a meeting on Tuesday, April 7, 2015 at Brown’s Flat Elementary School at 7 pm.

As you are aware, the District Education Council is hosting a series of public hearings for parents regarding the sustainability of your school. We are following Policy 409 of the Department of Education and Early Childhood Development, http://www.gnb.ca/0000/pol/e/409A.pdf which states that we must have three public meetings to discuss any school closure. The first meeting for Brown’s Flat Elementary was held at the school on March 12, 2015. At that meeting I outlined the process Council must follow with Policy 409, and District staff talked about the options for Brown’s Flat Elementary .

The power point used that evening can be found on the Anglophone South website at www.asd-s.nbed.nb.ca the main page has a news item entitled “School Sustainability Reviews & Public Consultations”. Click “Read More” and it is the “School Sustainability Study – Brown’s Flat Elementary”. If you do not have access to our website, please let the school know and we can provide a copy for you. Our second meeting will be held on Tuesday, April 7, 2015 at Brown’s Flat Elementary at 7:00 p.m. This meeting will be an opportunity to make a presentation to the DEC or to provide feedback.

If you wish to present, please contact our Recording Secretary, Clare Murphy at 658-5325 or clare.murphy@gnb.ca prior to 4:00 pm, Thursday, April 2 nd . We will ensure everyone has time to speak to us.

You are also welcome to write to me at the above address or you can send any comments to the following email: asds.schoolreview@gnb.ca The third and final meeting will be a District Education Council session scheduled for Wednesday, April 29 th at 7:00 pm at the Saint John Education Centre, 490 Woodward Avenue when a final decision will be made on the sustainability of Brown’s Flat Elementary School. [Emphasis added.] [ 47 ] On March 25, 2015, and again on April 1, 2015, a notice was published in the Telegraph Journal indicating the date, time and location of the second meeting. (

c) Second Public Meeting [ 48 ] The second meeting took place on April 7, 2015. The meeting’s stated purpose was to provide an opportunity to make presentations to the Council or to provide feedback. During this meeting, numerous presenters expressed views on the sustainability and community value of Brown’s Flat Elementary School. Among the more thoughtful submissions made, the one by the Parent School Support Committee stands out, if only because it provides input in relation to each of the eight criteria enumerated in

section 6.4 of Policy 409. The Committee concluded its analysis with the following

summary, conclusions and recommendations: Policy 409 – 8 Criteria

The Parent School Support Committee has addressed all 8 criteria 1. Low/declining enrolments: we have shown that our enrolment is actually increasing over the next 5 years 2. Health and Safety: this is one of the newer buildings in the district and has no health/safety concerns 3. Quality of Education Programs and Services: the children have access to numerous services and the children are engaged and happy at Browns Flat 4. Transportation: 2 hours a day for some students is unreasonable 5. Finances: the operating costs of $30k – is this enough to warrant closing a school? 6.

Impact on the local community: devastating 7. Impact on other schools: larger classes sizes, increased costs 8. Economic development: direct impact due to lack of opportunity for younger families Conclusions and Recommendations The Parent School Support Committee found many faults with the DEC presentation • DEC only presented on 5 criteria areas per Policy 409. Why? Were the other 3 not worthy of your time and consideration? • As per Policy 409 a sustainability study shall normally be concluded over a 12 month period.

We were given 7.5 weeks, from the notification on the radio to our presentation tonight • While the DEC did not criticize our programs they did feel our lack of Early French Immersion was an inadequate component to our school but that is hardly a reason for a radical step like closure • Concerning enrolment, the DEC is trying to establish that we are in a period of decline but the data they presented shows the opposite • The only true savings the DEC has put forward will be the cost of operations $30,319. They want to close a healthy school for $30,000.

All other costs will be deferred costs • Overall the DEC report was poorly written and does not stand up as a coherent document. Was this document produced simply as an exercise to fulfill some legal obligation dictated by Policy 409? • We feel their report shows a lack of respect for the people to whom it was presented [ 49 ] Following the second meeting, District staff prepared a document entitled “Summary of Policy 409 Consultations”. The document sets out the comments and questions raised in the course of the second public meeting regarding each of the eight criteria specified in

section 6.4. (

d) Third Public Meeting

[ 50 ] At the final meeting held on April 29, 2015, the Council dealt with its staff’s recommendation, as expressed and explained in the document entitled “School Sustainability Study – Brown’s Flat Elementary”.

The Chair began by reviewing the “Summary of Policy 409 Consultations”, which, as mentioned, records the comments and questions put to the Council by various presenters in respect of the eight factors prescribed under Policy 409. [ 51 ] Councillors then engaged in the following discussion before voting on a motion to direct the District Superintendent to inform the Minister of the Council’s recommendation that Brown’s Flat Elementary School be closed, effective June 30, 2015: - transportation - it is unfair to have students travel that distance; we have a problem with a shortage of casual bus drivers and students are loaded on another bus (causing overcrowding) or must wait for another bus.

Brown’s Flat is a great school. - this is an extremely difficult process for all - but education matters. We are in a situation of declining enrolment. It is especially difficult for rural schools. We have looked at everything and thought very hard about it all. We must support the staff recommendation to close the school. - the education of a child - is not just book learning - but developing the child as a ‘citizen’. All things aside, the road the students must travel is a problem. - very pleased with both communities and the work they have done for their schools and would like to commend them for it.

There being no further comments, Mr. Fowler asked for a vote by show of hands on the motion. Motion carried. Mr. Boudreau, Mr. Ross, Mr. Campbell and Mr. Spires voted against the motion. Mr. Fowler advised that the Minister must now review the Council’s recommendation and make a final decision. (

e) Recommendation and Supporting Documentation [ 52 ] By letter dated April 30, 2015, the Chair and the Superintendent notified the Minister of the Council’s recommendation to close Brown’s Flat Elementary School, effective June 30, 2015. The authors advised the Minister the recommendation followed “ a careful review of all information received during public consultation sessions and provided by District staff ” (emphasis added). [ 53 ] The letter was accompanied by a binder that included, inter alia :

(1) The District Staff’s PowerPoint presentation entitled “School Sustainability Study – Brown’s Flat Elementary”; (2) the written submissions made by or on behalf of the parents of affected students at the second public meeting; (3) the correspondence to the parents; (4) meeting notes for each public se

[…]