RURAL MUNICIPALITY OF ARBORFIELD NO. 456, TOWN OF ARBORFIELD v. MAVIS McCREA, 2023 SKKB 178

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 178 Date: 2023 08 24 Docket: KBG-SA-00573-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: RURAL MUNICIPALITY OF ARBORFIELD NO. 456, TOWN OF ARBORFIELD and MAVIS McCREA Plaintiffs - and - BOARD OF EDUCATION OF THE NORTH EAST SCHOOL DIVISION OF SASKATCHEWAN Defendant Counsel: Timothy E. Turple for the plaintiffs Caroline J. Smith and Caroline C. Seshadri for the defendant ___________________________________________________________________________ FIAT MORRALL J.

August 24, 2023 ___________________________________________________________________________ Item Paragraph Introduction ........................................................................................................................... 1 Evidence ................................................................................................................................. 3 The Board ..................................................................................................................... 4 The Plaintiffs ................................................................................................................ 8 Procedural unfairness ....................................................................................... 10 Irreparable harm to the children ..................................................................... 23 Irreparable harm to the community ................................................................ 26 Position of the Parties ........................................................................................................ 31 The Plaintiffs .............................................................................................................. 31 The Board ................................................................................................................... 34 Issues .................................................................................................................................... 38 Analysis ............................................................................................................................... 39 Striking the Affidavits ........................................................................................................ 39 The Test for an Interim Injunction ................................................................................... 59 Strong Prima Facie Case ................................................................................................... 61 Preliminary Matters ............................................................................................................ 63 Framing Judicial Review ................................................................................................... 66 Standard of Review ............................................................................................................ 69

The Legislation ................................................................................................................... 72 Extrinsic Evidence .............................................................................................................. 75 Differences in Legislation ................................................................................................. 79 Analogous Decisions .......................................................................................................... 95 Breaches of Statutory Provisions ................................................................................... 105 Other Arguments .............................................................................................................. 117 Baker Factors .................................................................................................................... 121 Conclusion on the Likelihood of Success of Future Judicial Review ....................... 135 Meaningful Risk of Irreparable Harm ........................................................................... 149 Busing and Extracurricular Activities ........................................................................... 152 Childcare ........................................................................................................................... 162 Property Values and the Ability to Attract Business ................................................... 165 Student Patronage of Local Businesses ......................................................................... 170 Balance of Convenience .................................................................................................. 175 Costs ................................................................................................................................... 200 Introduction [ 1 ] This is an application for an interim injunction by the Rural Municipality of Arborfield No. 456 [RM of Arborfield], the Town of Arborfield [Town] and Mavis McCrea [Ms.

McCrea], collectively [Plaintiffs], to enjoin the Board of Education of the North East School Division of Saskatchewan [Board] from no longer offering Grades 7 to 12 at the Arborfield School [Decision]. Unfortunately, for various reasons, this has not been the first such application faced by the Court over many long years to stop a school in rural Saskatchewan from closing or offering fewer grades, and this will not be the last.

The interim application brought by the Plaintiffs is a short-term step before the determination of their claim seeking judicial review of the Board’s Decision so that a court-ordered permanent injunction would prevent the Board from discontinuing Grades 7 to 12, along with an order for damages arising from the discontinuance. [ 2 ] This application will not finally resolve this dispute but is important to the various stakeholders and residents of the Arborfield area as it determines where their older children will go to school in the fast-approaching fall 2023 school year.

If the injunction is not granted, the students in Grades 6 to 11 at Arborfield School in the 2022/2023 school year will attend the Carrot River school this September. If the injunction is granted, those students will attend Arborfield School. As is usually the case with these applications, the competing interests involve questions of law and the balancing of disparate legitimate concerns between the parties. Evidence [ 3 ] The Plaintiffs are relying on 27 affidavits filed by 24 individuals. The Board is relying on one affidavit, by Ms. Stacy Lair [Ms. Lair].

However, this is not a contest with the winner being the party who has filed the most affidavits. It is the content of an affidavit that matters to the Court. I will begin with the material filed by the Board, given the one lengthy affidavit will contextualize some of the dispute. Of note, the Board also filed the certified record of proceedings which I will detail to a lesser degree. While the review of the evidence will be lengthy, it is important that all interested parties are able to clearly see what evidence the Court considered in arriving at its final determination for this application.

The Board [ 4 ] I begin by generally reviewing the salient aspects of Ms. Lair’s affidavit. [ 5 ] In the affidavit of Stacy Lair affirmed July 4, 2023, she states as follows: 1. She has been the Director of the Board of Education for the North East School Division of Saskatchewan [NESD] since April 1, 2022. 2. She provides details of her personal background, including her university degrees and her work as a principal in Creighton, vice principal in Tisdale and her appointment as Superintendent of School Services for NESD in 2018. 3.

Arborfield School is within the boundary of Subdivision 2, which includes Carrot River and the areas surrounding Red Earth and Shoal Lake, as well as Arborfield. Much of the boundary extends north and northeast of the Town of Arborfield according to the division map. 4. On September 29, 2022, the Board passed a motion to review Arborfield School to determine whether the school should be closed and/or only certain grades be discontinued.

5. On October 5, 2022, her assistant posted a Notice of Intent to Review Arborfield School [Notice] on the bulletin board in the NESD office in Melfort and on the NESD website. 6. On October 6, 2022, her assistant emailed the Notice to the Town of Arborfield and requested that it be posted in the office of the Town of Arborfield and in the Arborfield Community Hall. 7. On October 6, 2022, her assistant emailed the Notice to the RM of Arborfield and requested it be posted in the RM of Arborfield office. 8.

On October 6, 2022, her assistant emailed the Notice to the RM of Connaught and requested it be posted in their office. 9. On October 6, 2022, her assistant emailed the Notice to the RM of Moose Range and requested it be posted in their office. 10. On October 6, 2022, her assistant emailed the Notice to the RM of Bjorkdale and requested it be posted in their office. 11. On October 13, 2022, the NESD ran the Notice as an advertisement in the Prince Albert Daily Herald newspaper. 12. On January 27, 2023, the Board passed a motion to consider closure or discontinuance of grades at Arborfield School. 13.

On February 1, 2023, her assistant emailed a “Notice of Electors” and a “Notice of Electors’ Meeting” [Notices] which advised that the Board had passed a motion to consider closure or discontinuance of grades at Arborfield School and that there would be a meeting on February 15, 2023, to advise the public with respect to this motion to the Town of Arborfield, the RM of Arborfield, the RM of Moose Range, the RM of Connaught, the RM of Bjorkdale and Patrick Smoke, the principal of Arborfield School. This email requested that the various entities post these Notices in their respective buildings.

These emails were posted on the NESD website on this same day. 14. On February 1, 2023, her assistant sent another email to the same above entities attaching an updated version of the Notice of Electors’ Meeting reflecting a location change. 15. On February 1, 2023, her assistant posted these Notices on the NESD bulletin board in the NESD office in Melfort. 16. On February 1, 2023, these Notices were run in the northeastNOW newspaper. 17. She attended the electors’ meeting on February 15, 2023, and indicates that more than two hundred people attended this meeting. 18.

With respect to the issue of the composition of the Arborfield School Review Committee [Review Committee], on October 5, 2022, she sent a letter to the mayor of the Town of Arborfield requesting that they have their town council appoint two members to the Review Committee. 19. On October 6, 2022, she sent letters to the reeves of the rural municipalities of Arborfield, Connaught, Moose Range and Bjorkdale requesting that they jointly provide the names of two members who will be appointed to the Review Committee.

When she sent these letters, she believed that the Village of Zenon Park was located in the RM of Arborfield, so no one ever requested that the Village of Zenon Park participate in this process. 20. On October 20, 2022, she received an email from Andrea Bell, the Administrator of the RM of Arborfield advising that Alois Brooner, the Deputy Reeve of the RM of Arborfield, and Kendra Lacroix, a resident of the RM of Arborfield, were the two members appointed jointly by the various rural municipalities. 21. On January 14, 2023, she posted a letter entitled “Arborfield School Review Update” to the NESD website.

It contained information regarding the background of the school review process, the steps already taken, the date of the next decision to be made on January 27, 2023, and a survey for affected families with children in the Arborfield area to be sent to the Board. This letter was also sent to Melissa Gray, who was the chair of the Review Committee. On January 16, 2023, her assistant sent this letter via text message and email to the parents and guardians with children attending Arborfield School. 22.

She appends copies of separate news articles about the school closing published online in the Humboldt Journal on January 4, 2023; the Saskatoon StarPhoenix on January 31, 2023; the Nipawin Journal on February 1, 2023; sasktoday.ca on February 1, 2023; northeastnow.com on February 2, 2023; ctvnews.ca (undated); sasktoday.ca on February 6, 2023; ctvnews.ca (undated); northeastnow.com on February 16, 2023, sasktoday.ca on February 21, 2023; the Nipawin Journal on March 15, 2023, and sasktoday.ca on March 20, 2023. 23.

With respect to the issue of the composition of the Board, she notes that the Board of the NESD is comprised of eight members, each of whom represents a subdivision within the NESD, of which Arborfield is Subdivision 2. 24. Kevin Trew [Mr. Trew] was elected to the Board as the representative of Subdivision 2 on November 9, 2020, and resigned effective June 30, 2022. 25. On October 17, 2022, a byelection was held in Subdivision 2, and Sherri Hanson was elected, and she continues to be the representative for that subdivision. 26.

With respect to the issue of the Board’s consideration of the condition of Arborfield School, on October 28, 2022, December 5, 2022 and January 23, 2023, she sent an email to members of the Review Committee containing information about the physical condition of Arborfield School. Further, in a PowerPoint at the electors’ meeting on February 15, 2023, she noted that Arborfield School had 563 service requests over the period of time between 2014 and 2022, whereas White Fox School had 607, the Carrot River Jr. Sr. High School had 558, Bjorkdale School had 426 and the Carrot River Elementary School had 358.

27. With respect to the issue of the enrollment projections, on November 25, 2022, she met with members of the Arborfield School Community Council and the Review Committee to go through the school review package. With respect to concerns over the accuracy of enrollment projections, she explained that their projections were derived from birth records. 28.

On February 15, 2023 she shared Melissa Gray’s enrollment projection document in her presentation at the electors’ meeting and took it into account when producing her enrollment projections as she made adjustments based on the NESD’s information about students who had moved or were planning to move to or from the Arborfield attendance area and, in the case of children not yet of school age, she assumed that these young children would enroll in the school their older siblings attend. 29. While the Review Committee projected 82 students for the 2023/2024 year, the NESD projected 79. 30.

In terms of the effect of an injunction on schools, students and families, she is informed by the principal at Arborfield School that the teachers who taught students in Arborfield for the 2022/2023 year who will be attending the Carrot River high school for the 2023/2024 school year have completed all year-end student support transition meetings at the high school. If Grades 7 to 12 are reintroduced to Arborfield for 2023/2024, it will be necessary to hold new year-end student support transition meetings with the teaching staff and administrators. 31.

She is advised by the principal of the Carrot River high school that on May 30, 2023, they held a “transition evening” for the transferring students. 32. Based on her experience as a teacher and in educational administration, she believes that the well-being of students is negatively affected when there is a change in plan for the students’ education. 33. Based on her enrollment projections, there would be 26 students attending Grades 7 to 12 at Arborfield School in the 2023/2024 school year, with one student in Grade 12. 34.

Therefore, with these low numbers, it would not be feasible to provide some important educational, social and extracurricular opportunities to the students. 35. Arborfield School has only been able to offer 13 of the 24 high school courses needed to graduate, with students having to take many high school courses online. 36. As well, students in Grades 7 to 12 were in triple-graded classrooms, which she believes leads to a lower quality of instruction and peer discussion than the single-grade classrooms that would occur in Carrot River. 37. There are more extracurricular sports offered at Carrot River Jr. Sr.

High School in the 2022/2023 year than at Arborfield School. 38. If Grades 7 to 12 are reintroduced to Arborfield School, the NESD will not offer busing to Carrot River Jr. Sr. High School from the Arborfield area. 39. If the injunction is granted, there would need to be a reversal of the reassignments that were made as a result of the Decision, which would be disruptive to the operations of the Carrot River Jr. Sr. High School and Arborfield School. 40.

At this late stage, if the NESD is required to hire two new teachers at Arborfield School to replace the teachers that were reassigned as a result of the Decision, they would receive few, if any, quality applicants given the late job posting and the significant curricular load. 41. If the injunction is granted, there would be complications for bus driver staffing as a bus driver would need to transition back from one union to another or they would need to reassign a bus driver to another route. 42.

In a letter dated June 26, 2023, the transportation routes and bus stop times were shared with all families of students attending Arborfield for kindergarten to Grade 6 and Carrot River for Grades 7 to 12. 43. Arborfield School, Carrot River Elementary School, and Carrot River Jr. Sr. High School have altered their bell times, and Arborfield School has adopted an alternate calendar to accommodate the new busing

schedule as a result of the Decision. Therefore, she believes, based on her experience as a teacher and in educational administration, changing bus stop times, bell times and school calendars would be disruptive to all families that attend these schools. 44. All of Arborfield School’s student and teacher resources for Grades 7 to 12 have been relocated to Carrot River Jr. Sr.

High School, and it would take significant time to reverse this process, and many of the teachers and staff that would complete this activity are not employed by the NESD for July and August. [ 6 ] As part of the requirements of the judicial review process, the Board also provided a copy of the certified record of proceedings. There were 609 documents in this record, which included images, notices, emails, court material related to this file, survey feedback, survey reviews, agendas of various meetings, PowerPoint slides and various other data related to the genesis and process of this matter.

Given the compressed amount of time to complete this decision, I will not detail every document as most of the salient documents are duplicated and referred to in the affidavits provided by both parties. [ 7 ] I believe it is fair to say that the record is a fulsome detailing of the required disclosure regarding the various procedural steps and communication between the interested parties relating to the process used to make an assessment with respect to the Board’s decision to discontinue Grades 7 to 12 at Arborfield School.

These documents will form a necessary record for the judicial review process in the future. The Plaintiffs

[ 8 ] I will detail the various affidavits filed by the Plaintiffs in support of their application and restrict my recitation of the contents to only the salient facts. However, I can indicate that I have read and considered all the various material contained in every sworn document. [ 9 ] In order to organize the affidavits filed in support of the Plaintiffs’ application, I will order them in terms of their relationship to the subject areas of procedural unfairness, irreparable harm involving the children and irreparable harm involving the community.

While some affidavits relate to multiple subject matters, I will group the affidavits in order of their primary focus. Procedural unfairness [ 10 ] The affidavit of Lisa Leblanc sworn May 24, 2023, states that she is the administrator of the Village of Zenon Park and does not remember having any communication with the NESD regarding the Arborfield School review and does not remember seeing anything posted about the closure anywhere in Zenon Park. [ 11 ] The affidavit of Marilyn Johnson sworn May 25, 2023, states as follows: 1. She is the caretaker of the Arborfield Community Hall. 2.

No one from the NESD or the Board requested her to put up any notices at the Hall. 3. She checks the bulletin board periodically to remove expired event notices, and between September 1, 2022, and April 25, 2023, she did not see or remove any notices related to Arborfield School closure. [ 12 ] The affidavit of Ryan Thompson sworn June 15, 2023, states as follows: 1. He is an employee of the water treatment plant at the Town of Arborfield. 2.

Between September 2022 and April 25, 2023, he did not observe any notices posted in the Town of Arborfield, and he ordinarily checks the notices at the Arborfield town office almost daily. 3. He did observe the notice of the Decision posted after the meeting that occurred on April 25, 2023. 4. He is opposed to the discontinuance of Grades 7 to 12 as a loss of any amenities at Arborfield may impact his employment, which is dependent on having a population base. [ 13 ] The affidavit of Kellie McShannock sworn June 19, 2023, states as follows: 1.

She is employed at the Arborfield Co-op where the post office is located. 2. Between September 2022 and April 25, 2023, she did not observe any notices posted on the bulletin board at the post office. 3. She did see the notice that was posted at the post office of the Decision related to the Board meeting of April 25, 2023. 4. She is opposed to the discontinuance of Grades 7 to 12 as the older children purchase food at lunch at the Co-op daily, and they will lose that source of business. [ 14 ] The affidavit of Melissa Gray sworn June 20, 2023, states as follows: 1.

She is a member of the Arborfield School Community Council and was a member of the Review Committee. 2. She has two children attending Arborfield School and will have three more children commencing school in the near future. 3. She lists the various members of the Review Committee and notes there were no members from Zenon Park. 4. The Review Committee was tasked with providing estimates of the school population at Arborfield School to the Board. 5. They conducted a survey with the school parents and spent time verifying exactly who will attend for the next five years.

They anticipated that in September 2023, there would be 85 students, in September 2024 there would be 92 students and in September 2025 there would be 106 students. 6. She provided these numbers to Ms. Lair and noted a discrepancy in the numbers Ms. Lair then provided to the representatives as part of the school review process. 7. During the period of time between October 2022 and April 25, 2023, she did not see any notices with respect to the school review process posted at the Arborfield Post Office.

After the April 25, 2023, meeting and Decision, she did see the said notice posted in relation to the Decision. 8. She also had discussions with Ms. Lair regarding the facilities condition index report in relation to Arborfield School which was not provided to her, although she received a School Sustainability Study Final Report from May 2019 which identified Arborfield School’s strengths, the “preferred future” and the results of a public meeting dated February 28, 2019. 9. She indicates that her family will be deeply impacted by the school closure as busing will be inconvenient and disrupt her children’s

schedule and her ability to provide for their care. [ 15 ] The affidavit of George Schroepfer sworn June 20, 2023, states as follows:

1. He is the father of three children who are going into kindergarten or will be in the near future. 2. He has been active in organizing legal representation to oppose the discontinuance of grades at Arborfield School and did not receive any notification that the Arborfield School review process was under way by the Board. 3. On November 11, 2022, he read all the bulletins posted on the bulletin board located in the lobby of the Arborfield Community Hall and did not see any notice from the Board regarding the Arborfield School review. He can verify the same lack of notice on December 26, 2022. 4.

In January 2023, he did not see any notice by the Board regarding the Arborfield School review at the Arborfield Post Office. 5. He was informed by Lindsey Ernst that an electors’ meeting was scheduled for February 15, 2023, and attended that meeting. 6. On March 14, 2023, he phoned the NESD, went through s. 57 of The School Division Administration Regulations , RRS c E-0.2 Reg 26 [ Regulations ], with the secretary he spoke to and was told where the notices had been posted in Arborfield. 7.

He then went and took pictures of the locations where the notices were to be posted in Arborfield and verified that, in fact, no notices had been posted. He also went to Zenon Park and confirmed that no notices had been posted there either. 8. He then investigated the posting of notices for the February 15, 2023, electors’ meeting and was provided an email dated February 1, 2023, from the NESD to the various locations requesting that they post a notice regarding the electors’ meeting. 9.

He spoke at the April 25, 2023, school board meeting and advised that it was his opinion that they had not complied with the notice requirements for the meeting in the Regulations . After that date, he noted that the NESD complied with s. 57 of the Regulations and posted the required notices of the Decision at the Zenon Park Post Office and the Arborfield Post Office. 10. He notes Mr. Trew was a representative of Subdivision 2 of the NESD and produced various postings related to Mr. Trew’s background online. According to a brief biography, Mr.

Trew is a long-term resident of Carrot River and employed by the Town of Carrot River as their administrator, as well as being a very active volunteer and board member in that community. He noted Mr. Trew resigned as a board member of the NESD in June 2022, meaning there was no board trustee from Subdivision 2 when the motion to establish a school review process was passed in the fall of 2022. 11. He is the owner of an electrical company and hired an electrician from Ukraine whose wife expressed reservations to him about moving to Arborfield if there was no school for their three children to attend. 12.

He is also involved in a business manufacturing affordable housing with a partner from Dundurn, and they were considering constructing a warehouse in Arborfield but were concerned that it will prove difficult to attract employees to a town that “does not have a school”. [ 16 ] The affidavit of Chet Edwards sworn June 20, 2023, states as follows: 1. He is the mayor of the Town of Arborfield and the father to four young children. 2. During October 2022, he did not see a notice relating to the school review posted at the Town of Arborfield office. 3.

Between September 1, 2022, and April 25, 2023, he never saw a notice with respect to the school review of the electors’ meeting at any location in the Town of Arborfield, including the Town of Arborfield office. 4. As mayor, he never received any notice of the electors’ meeting, school review or any Board meeting digitally. 5. He did observe a notice posted at the post office in the Town of Arborfield with respect to the April 25, 2023, Decision. 6.

His oldest child is in Grade 1 and can presently bike to school and come home during lunch, which they will not be able to do if they are required to take a bus to Carrot River, along with the fact that the discontinuance of Grades 7 to 12 will impact their future ability to participate in after-school activities, including socializing with friends. 7. He is concerned, based on a Board resolution on January 21, 2021, which considered closing the entire Arborfield School, that the discontinuance of Grades 7 to 12 will lead to the closure of the school. 8.

He appends a letter from a local business written to the Minster of Education dated January 16, 2023, expressing concern over the possible closure of the school and believes there will be negative impacts on the Town’s ability to maintain its population and tax base. [ 17 ] The affidavit of Eric Valois sworn June 20, 2023, states as follows: 1. He is the mayor of the Village of Zenon Park. 2. He was not involved in the Review Committee and was informed by Chet Edwards that an electors’ meeting was to take place on February 15, 2023, and he attended.

He addressed the representatives of the Board, informing them that he had received no information in relation to the proposed school closure. 3. He did not see any notice posted in Zenon Park until after the vote was taken on April 25, 2023, to discontinue Grades 7 to 12. 4. As the Zenon Park school is all French, he is strongly opposed to the discontinuance of Grades 7 to 12 in Arborfield as the school is important to the viability of the Village of Zenon Park to attract residents with English-speaking children.

5. Since the English school was closed in Zenon Park in 2012, they have lost a grocery store, bar and bank in the village. 6. He is the father to two young children and the discontinuance will impact families with school-age children as it is only 11 kms from Zenon Park to Arborfield, but they will later be required to take a bus to Carrot River, which is 35 kms away, which will impact his children’s ability to be involved in after-school activities and doing homework at home. [ 18 ] The affidavit of Andrea Bell sworn June 20, 2023, states as follows: 1. She is the administrator for the RM of Arborfield. 2.

She has observed reluctance when communicating with potential ratepayers, especially younger families, moving to the area when they are informed of the school review for Arborfield School. 3. She is concerned that the Board will eventually close Arborfield School as the school in Gronlid initially discontinued Grades 9 to 12 in 2017 and then closed completely in 2022. 4. On June 9, 2021, she sent a letter to the NESD outlining concerns related to the lack of notice and communication between the NESD and the RM of Arborfield’s council related to reviewing Arborfield School for closure. 5.

She attached a letter dated March 14, 2022, to the Minister of Education which outlines their concerns with the review process and the impact closing the school would have on the viability of both the Town of Arborfield and the RM of Arborfield. 6. On October 5, 2022, the RM of Arborfield received a letter from the NESD regarding the formation of a school committee. She says she noticed that the letter was not addressed to anyone from Zenon Park. 7. On February 1, 2023, she received an email from the NESD to post a notice regarding the February 15, 2023, meeting of the electors on the RM’s notice board.

She avers that she posted the notices on the bulletin board in the RM office in Arborfield. 8. She did not receive any other requests to post notices for any other meetings until receiving an email on April 27, 2023, requesting the RM of Arborfield to post a notice of the Decision. This was the first email that she noticed was also addressed to Zenon Park. [ 19 ] The affidavit of Lisa Hamelin sworn June 20, 2023, states as follows: 1. She is the administrator for the Town of Arborfield. 2.

She is concerned that the discontinuance of Grades 7 to 12 at Arborfield School will lead to the eventual closure of the entire school based on the January 21, 2021, minutes of the Board relating to a potential plan for a new kindergarten to Grade 12 school to replace the school in Arborfield, as well as the ones in Carrot River, and consider the potential closure of Arborfield School through a school review process. 3. She notes that other communities that have experienced a school closure have very few new homes and many properties have fallen into a state of disrepair. 4.

On October 6, 2022, she received an email requesting the town post a notice relating to an intent to review the school and she posted a notice at the town office but not at the community hall. 5. On February 1, 2023, she received an email to post a notice on the bulletin board of the electors’ meeting for February 15, 2023, and she posted that notice at the town office. 6.

On April 27, 2023, she was away when she received an email to post a notice of the Decision, but upon her return, she observed that a notice had been posted at the town office. [ 20 ] The affidavit of Lisa Leblanc sworn July 13, 2023, states that, in reply to the affidavit of Ms. Lair, the Village of Zenon Park is an independent entity, being an urban municipality bordering the RM. [ 21 ] The affidavit of Lindsey Ernst sworn July 13, 2023, states as follows: 1.

She appends a copy of the Prince Albert Daily Herald distribution map from 2023 which does not include Arborfield as Arborfield is 55 kms southeast of Nipawin and 52 kms northeast of Tisdale, which are the locations closest to Arborfield that are within the Prince Albert Daily Herald distribution zone 2. The only newspaper available at the Arborfield Co-op on July 5, 2023, was the Melfort Journal . 3. She notes that the office of the RM of Connaught is in Tisdale, the office of the RM of Bjorkdale is in Bjorkdale and the office of the RM of Moose Range is located in Carrot River.

These offices are not located within the Arborfield school district. [ 22 ] The affidavit of Melissa Gray sworn July 13, 2023, states as follows: 1. The following statements are in reply to the affidavit of Ms. Lair. 2. She states that the information regarding enrollments at Arborfield School provided by the Review Committee was accurate and they made all the required adjustments based on information about students who were planning to move to or from the Arborfield attendance area. 3. She disputes the accuracy of the NESD enrollment projections.

4. She notes that two children who attended Arborfield School were able to graduate early in 2023 due to their high academic performance. Irreparable harm to the children [ 23 ] The affidavits of Tanis Lussier, Shauna Bitzer, Bonnie Bitzer, Craig Gray, Chelsea Edwards, Melissa Bitzer, Hayley Kapeller, Evan LeBras and Carissa Carpentier were fill-in-the-blanks affidavits that all stated the following information: 1. Their place of residence, whether in the Town of Arborfield, the RM of Arborfield or the RM of Bjorkdale. 2.

The names of their child or children and which grade they may or will attend at Arborfield School in September of 2023. 3. Their identical opposition to busing their child or children to Carrot River which they note is 24 km from Arborfield and 35 km from Zenon Park. 4. The particular school activity their child or children were involved in after school in Arborfield, which they identically declare partly negatively impacts their child or children’s school experience in removing them from their home community. [ 24 ] The affidavit of Mavis McCrea sworn June 20, 2023, states as follows: 1.

She has a child that was to be attending Arborfield School in September 2023. 2. She is opposed to the discontinuance of Grades 7 to 12 at Arborfield School and having their child bused to Carrot River. 3. She notes his school experience is negatively impacted by removing him as they engage in numerous community and school activities. 4.

She also notes that Arborfield School had several various sports teams. [ 25 ] The affidavit of Melissa Bitzer sworn July 13, 2023, states that her children were automatically enrolled in the Carrot River high school for the 2023/2024 school year despite her not having taken steps to enroll them at that location as her preference would be to have them continue at Arborfield School. Irreparable harm to the community [ 26 ] The affidavit of Donald Underhill sworn June 15, 2023, states as follows: 1. He is the reeve of the RM of Arborfield. 2.

Within the boundaries of the RM of Arborfield, there are rural homes further than 40 kms from the Town of Carrot River. 3. He is concerned that the discontinuance of Grades 7 to 12 at Arborfield School will negatively impact the RM of Arborfield’s ability to attract and maintain businesses. 4. They remit an average of $198,000 of property taxes to the NESD each year. [ 27 ] The affidavit of Kendra Lacroix sworn June 15, 2023, states as follows: 1.

She is employed at the hair salon across from the Arborfield Community Hall and looks out the window daily at that hall and appended a picture of the hall to her affidavit. 2. Between September 2022 and April 25, 2023, she did not see any notices posted to the exterior of that hall. 3. She did observe a notice posted of the Decision of April 25, 2023. 4. She did not see any other notices from the NESD posted in Arborfield or anywhere else regarding the school review. 5.

She is opposed to the discontinuance of Grades 7 to 12 as she has two children in Grade 1 who walk to her place of business after school when she does not have childcare available. One source of childcare was high school students, who will now no longer be available. 6. The older children at Arborfield walk to her salon after school for hair appointments and will no longer be able to attend if they go to school in Carrot River. 7.

She is opposed to the loss of amenities at Arborfield as her job is dependant on having a population base. [ 28 ] The affidavit of Yuriy Danyliuk sworn June 19, 2023, states as follows: 1. He is a real estate agent in Nipawin and is familiar with the communities of Arborfield and Zenon Park. 2.

He provides an opinion, after providing an expert certificate pursuant to Rule 5-37 of The Queen’s Bench Rules , that the closure or discontinuance of Arborfield School will negatively affect the housing market in Arborfield in terms of pricing as well as marketability and the level of interest of potential buyers. [ 29 ] I note that the affidavit of Alan Haggart sworn June 20, 2023, remains on the court file as no one has yet removed it despite both parties indicating in their chambers appearance memos of July 14, 2023, that the affidavit was being withdrawn

from consideration by the Court. Given those assertions on the court record, I will not consider Alan Haggart’s affidavit for this application. [ 30 ] As generally required by the case law, all three of the Plaintiffs have provided an undertaking to pay any damages that may be incurred by the Board should the injunction be granted and it is later shown that the Board sustained damages as a result of the injunction that the Plaintiffs ought to pay.

Position of the Parties The Plaintiffs [ 31 ] The Plaintiffs assert that they have a strong prima facie case given the Board’s failure to follow the notice provisions prescribed in ss. 55 , 57 , 61 and 63 of the Regulations with respect to the Notice of Intention to Review Arborfield School, Notice of Electors’ Meeting and the Notice to Electors. Further, the Board failed to properly establish a school review committee in accordance with s. 59(2) (

c) of the Regulations . They argue the lack of compliance with these imperative procedural requirements are a condition precedent to the Board’s ability to close Arborfield School and constitute a material breach of fairness which invalidate the Board’s decision to close the school. They argue that the prior school closure decisions from this Court are not binding precedent as a result of the changes to the notice requirement legislation in the interim.

The Plaintiffs also point to the evidence of George Schroepfer which stated that the lack of notice prejudiced his ability to organize opposition to the discontinuance including obtaining legal counsel. [ 32 ] With respect to the issue of meaningful risk of irreparable harm should an injunction not be granted, the Plaintiffs submit that they have filed substantive evidence demonstrating that the discontinuance of Grade 7 to 12 at Arborfield School will negatively impact business, reduce property values, slow population growth, disrupt the connection of the affected children and their families to their home community and will discourage families from residing in Arborfield and area causing irreparable harm which cannot be compensated for in damages.

In this regard, they point to the evidence proffered by Mavis McCrea, Eric Valois, Yuriy Danyluik and others as providing significant concerns establishing irreparable harm. [ 33 ] In weighing the risk of irreparable harm to each party dependant on their success, the Plaintiffs state that the Board can not use the fact that they have made concrete plans involving changing bus routes, moving teachers and assimilating students to the Carrot River school to tip the scale of irreparable harm in favour of the Board.

The Plaintiffs use the analogy of the decision in Mantyka v Dueck , 2012 SKCA 109 , 399 Sask R 303 , to suggest the Board cannot relocate the children and then argue that moving them back to Arborfield compromises their “new normal”. Therefore, they rely on their prior assertions of irreparable harm along with their strong prima facie case to suggest that the balance favours an interim injunction.

The Board [ 34 ] The Board argues that the Plaintiffs’ claim does not meet the required standard of a strong prima facie case despite the Board not complying with some of the statutory notice provisions for a number of reasons. Firstly, they believe that the Plaintiffs are owed a relatively low level of procedural fairness as the Board was making a policy decision in discontinuing grades as no one’s livelihood or reputation was at stake.

Secondly, they submit that the notice provisions are directory rather than mandatory and point to the analyses of analogous school closing decisions in Saskatchewan as authority for this proposition.

Thirdly, in submitting that the notice provisions were directory, they point to the lack of any evidence that the Plaintiffs were prejudiced by the breach of the statutory notice requirements as the evidence demonstrates that the Arborfield community was very much aware of the school review process and actively participated. [ 35 ] Further, they argue that the failure to include Zenon Park in the appointment process for the Review Committee resulted in no prejudice to the process as there was no evidence anyone from Zenon Park wanted to be on the Review Committee or that the submissions made would have been any different or made any difference.

As well, the presence of Mr.

Kevin Trew on the Board did not create a conflict of interest nor did his resignation create any procedural unfairness according to law. [ 36 ] In relation to the presence of irreparable harm and the balance of convenience aspects of the Mosaic test ( Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc. , 2011 SKCA 120 , 341 DLR (4th) 407 [ Mosaic ] ), the Board notes that, at this stage, the Court is only to consider what harm may be suffered in the period before a final decision is made on the merits of the case if an interlocutory injunction is granted, and if it is not.

They submit that the Plaintiffs would not suffer any irreparable harm as a result of a longer bus ride to Carrot River as this busing time does not meet the legal definition of irreparable harm and there is no cogent evidence of irreparable harm during the affected time period in relation to the student’s extracurricular activities or the necessary childcare arrangements.

As well, any harm to residential property values or the ability to attract and retain businesses could be compensated by monetary damages. [ 37 ] On the other side of the coin, the Board argues that there would be extensive irreparable harm if the injunction is granted, as the few Arborfield secondary level students would have an impaired educational experience in Arborfield due to triple graded classrooms, lack of in-person classes, social opportunities and fewer opportunities to participate in extracurricular sports should they remain.

As well, there have been significant efforts in expending resources transitioning the new students to the Carrot River Jr. Sr. High School and a reversal would negatively impact the students. Therefore, on the whole of the evidence, the balance of convenience favours the Board. Issues [ 38 ] Based on the above case law and the position of the parties, and recognizing that the last three questions I will outline are not a series of hurdles to overcome, I would frame the central issues as follows: 1. Should any part of the affidavit of Stacy Lair be struck and for what reason? 2.

What are the legal requirements necessary for the Plaintiffs to obtain an interim injunction?

3. Have the Plaintiffs demonstrated that there is a strong prima facie case as a result of their claim? 4. Have the Plaintiffs demonstrated a meaningful risk of irreparable harm should an injunction not be granted? 5. In weighing the risk of irreparable harm the Plaintiffs are likely to suffer before trial if the injunction is not granted and they succeed at trial against the risk of the irreparable harm the Board is likely to suffer if the injunction is granted and they succeed at trial, to whom does the balance of convenience favour?

Analysis Striking the Affidavits [ 39 ] Prior to beginning the hearing in this matter, the Court ruled on the Plaintiffs’ application to strike portions of Ms. Lair’s affidavit. There were six portions of her affidavit the Plaintiffs wished to be stricken pursuant to Rule 13-30 The Queen’s Bench Rules , and I ordered that half of one portion be struck.

I note that the endorsement of my reasons for doing so in the court file may not fully reflect my decision, so I am now providing a more fulsome rendition of my rational for ruling as I did. [ 40 ] The Plaintiffs had requested that paragraphs 47, 48, 52, 56, 63 and 67 be stricken from the record given they were unsworn extracts from a document, unqualified opinion, argument and speculation. [ 41 ] In paragraph 47 of Ms. Lair’s affidavit, she appended a report written by Sari Carson, the principal of Carrot River Jr. Sr.

High School, about what occurred during a transition evening at her high school for the students that are to transfer from Arborfield School to Carrot River. This is alleged to be a document that offends Rule 13-30(4). [ 42 ] Firstly, it is important to note that, pursuant to Rules 13-30(2) and 13-30(3), in interlocutory applications the Court may admit evidence on information and belief so long as the source of the information is disclosed. This is an interlocutory application. The document in question was provided to Ms. Lair directly.

I find that the document is appended not for the admission of the truth of the report’s contents about the positive reactions of the students, but as part of the narrative to explain the ongoing work going into the school transition process that is otherwise detailed in Ms. Lair’s affidavit and to contextualize her opinion in paragraph 48. I will not be considering any evidence related to the unnamed students’ positive reactions. [ 43 ] Secondly, I note that Rule 13-30(4) states as follows: 13-30

(4) The costs of every affidavit that unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing the affidavit. [ 44 ] I find it does not state that all extracts from documents are inadmissible but that unnecessary extracted documents which clutter the file as a result of duplication may be met with an award of costs against the offending party (see Cowessess First Nation No. 73 v Phillips Legal Professional Corporation , 2018 SKQB 156 at para 18 , aff’d 2020 SKCA 16 ). Given that this document is necessary to explain Ms.

Lair’s opinion in the next paragraph, I find that the paragraph is appropriately drafted within Ms. Lair’s affidavit. [ 45 ] In paragraph 48, Ms.

Lair opines that based on her “experience as a teacher and in educational administration, the wellbeing of students is negatively affected when adults … communicate a decision or plan for students’ education to students and then overturn that decision or plan.” The Plaintiffs submit that this offends Rule 13-30 as she is not qualified as an expert and has not complied with Rule 5-37. [ 46 ] However, the Court of Appeal in the decision of Wynward Insurance Group v Smith Building and Development Ltd. , 2023 SKCA 57 , recently stated the following to clarify the law in Saskatchewan as it pertains to the subject of “participant experts”: [24] The trial judge in Westerhof [2015 ONCA 206 , 384 DLR (4th) 343 ] had ruled that certain medical witnesses, who had treated or assessed Mr.

Westerhof, would not be entitled to proffer opinion evidence about their diagnosis or prognosis because the plaintiff had not complied with Rule 53.03(1). As a result, those witnesses were precluded from giving their evidence in its entirety. The Ontario Superior Court of Justice upheld the trial judge’s ruling – Westerhof v Gee (Estate) , 2013 ONSC 2093 , 24 CCLI (5th) 226 [ ONSC Westerhof ] – but, on further appeal, the Ontario Court of Appeal took a different view, holding that not all opinion evidence fell within the ambit of Rule 53.03.

In reaching that conclusion, the Court of Appeal categorized experts into three broad types – litigation experts, participant experts and non-party experts – providing the following broad

definitions for each of them: (

a) a litigation expert is said to be a person who is “engaged by or on behalf of a party to provide evidence in relation to a proceeding” (Rule 4.1.01(1) of the Rules of Civil Procedure ); (

b) a participant expert refers to a person who forms “opinions based on their participation in the underlying events … rather than because they were engaged by a party to the litigation to form an opinion” ( Westerhof at para 6); and (

c) a non-party expert, is someone who is “retained by a non-party to the litigation … who form opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation” (at para 6). [25] As it pertains to the category of participant experts, the Ontario Court of Appeal went on to carve out the scope of, and boundaries for, what constitutes this sort of expert: [60] Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where -- the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

-- the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events. [61] Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts.

Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth.

I have therefore referred to such witnesses as “participant experts”. (Emphasis added) [ 47 ] From this extract, I find that it means that a party may proffer evidence from a participant expert without the necessity of complying with the notice requirements so long as the proposed expert meets the narrow scope of the definition and does not stray in their proffered opinion beyond those limits. [ 48 ] Next, in applying the test from the decision in White Burgess Langille Inman v Abbot and Haliburton Co. , 2015 SCC 23 , [2015] 2 SCR 182 , I find Ms.

Lair’s evidence to be relevant and necessary without running contrary to an exclusionary rule. Her qualifications demonstrate that she has the education, training and experience in educational administration to be properly qualified to provide this opinion as a result of her participation in the Arborfield School review. On the second “gatekeeping” aspect of the test, I am satisfied that the potential helpfulness of Ms.

Lair’s evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [ 49 ] Given the opinion proffered directly relates to her experience and participation in the factual matrix of this application, I find her opinion is admissible. It is also properly contextualized by the preceding paragraph and extract in her affidavit. Of course, I will make assessments with respect to weight after review of all of the evidence proffered in this application. [ 50 ] For the same reasons, I find that Ms.

Lair’s opinions in relation to the difficulties in triple-graded classrooms in paragraph 52 of her affidavit, and her opinion in paragraph 67 regarding the difficulties in changing bus stop times, bell times and school calendars for families are also admissible despite the objections of the Plaintiffs. [ 51 ] In the first part of paragraph 56 of Ms.

Lair’s affidavit, she opines that she has noticed “some families” who would prefer to move their children from a smaller school to a larger school for better educational and social opportunities could not do so because the NESD does not offer busing to the larger school and the families were not able to provide alternate transportation. [ 52 ] I struck this part of the paragraph as speculative and lacking a proper foundation.

Given there was no identification of these “families” in any other part of the material, I find that it is difficult to discern the factual foundation for the source of this statement and therefore it contravenes Rule 13-30(3) of The Queen’s Bench Rules . [ 53 ] However, in the second part of paragraph 56, Ms.

Lair states that if Grades 7 to 12 are reintroduced to Arborfield School, then the NESD will not offer busing to the Carrot River high school and there may be some families who would prefer to attend Carrot River but are required to send their children to Arborfield School. [ 54 ] I admitted this portion of the affidavit as the fact that NESD will not bus to Carrot River is a statement of fact within her knowledge.

While there is an element of speculation to the latter part of the statement, I find that it is within her experience and participation in the events described to state that it is possible that families may not appreciate the lack of busing to Carrot River. Given that not a lot of weight attaches to this statement, I do not find it objectionable.

The difference in admissibility between this averment and her statement about the intention of “some families” is as a result of the former statement’s direct attribution that some unknown members of the Arborfield School community have positive feelings towards the discontinuance of certain grades while the latter statement was more general in nature.

I find that the prejudice outweighs the probative value in the former statement but that, given the lack of any real prejudice in the latter statement, it is admissible given it has some probative value. [ 55 ] With respect to the alleged impugned portion of paragraph 63 of Ms.

Lair’s affidavit, she states that if Grades 7 to 12 are reintroduced, a bus driver would have to transfer from one union to another, or the NESD would have to attempt to reassign the bus driver to another route with their new union or find a bus driver in the old union to drive students to Arborfield School. [ 56 ] I admitted this portion of the affidavit as it related to some information she had been provided by the NESD’s Superintendent of Human Resources relating to bus drivers having to transfer unions to drive the bus to Carrot River as opposed to Arborfield that was noted in the first sentence of that paragraph.

I found that Ms. Lair’s subsequent statement was a logical extension of the information she received and is therefore admissible. [ 57 ] I trust these reasons will amplify the record noted in the endorsements on file. [ 58 ] With the admissible evidence determined, I will now examine the general requirements of the legal test for an interim injunction. The Test for an Interim Injunction [ 59 ] The Court in the recent decision of Naber v Naber , 2023 SKKB 100 , reviewed the legal requirements necessary for an interlocutory injunction.

The Court stated as follows: [29] The test to be utilized on applications for interlocutory injunctions is discussed by the Saskatchewan Court of Appeal in Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc , 2011 SKCA 120 at para 113 , 341 DLR (4th) 407 [ Mosaic ] : [113] In the interest of clarity, it may be useful to recapitulate the basic points which have been developed in the course of these reasons and to summarize the approach a judge should typically take when deciding whether to grant interlocutory injunctive relief. This can be done as follows:

(

a) The judge should normally begin with a preliminary consideration of the strength of the plaintiff’s case. The general rule in thisregard is that the plaintiff must demonstrate a serious issue to be tried, i.e. the plaintiff must have a claim which is not frivolous orvexatious. If the plaintiff raises a serious issue to be tried, it is necessary for the judge to turn to the matters of irreparable harm andbalance of convenience. (

b) Irreparable harm is best seen as an aspect of the balance of convenience. The general rule here is that the plaintiff must establish atleast a meaningful doubt as to whether the loss he or she might suffer before trial if an injunction is not granted can be compensated for,or adequately compensated for, in damages. Put another way, the plaintiff must demonstrate a meaningful risk of irreparable harm. If thisis done, the analysis turns to the balance of convenience proper. (

c) The assessment of the balance of convenience is usually the core of the analysis. In this regard, the relative strength of theplaintiff’s case, the relative likelihood of irreparable harm, and the likely amount and nature of such harm will typically all be relevantconsiderations. Depending on the particulars of the case, strength in relation to one of these matters might compensate for weakness inanother.

Centrally, the judge must weigh the risk of the irreparable harm the plaintiff is likely to suffer before trial if the injunction is notgranted, and he or she succeeds at trial, against the risk of the irreparable harm the defendant is likely to suffer if the injunction is grantedand he or she prevails at trial. That said, the balance of convenience analysis is compendious. It can accommodate a range of equitableand other considerations. (

d) The judge’s ultimate focus in considering whether to grant interlocutory injunctive relief must be on the overall equities and justiceof the situation at hand. [30] The Mosaic test has been adopted in subsequent decisions of this court. As noted by Danyliuk J. in Elite Property ManagementLtd. v Cain, 2020 SKQB 265 at para 21 [Elite]: [21] … PCS [Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120, 341 DLR(4th) 407] established a fresh perspective on the classic test to be used on injunction applications in this province.

No longer is there amechanical application of the traditional three-part test, as if it was a series of hurdles to overcome. The true focus of whether to grant aninjunction must be on the overall equities and justice in the case. [60] However, given that this interim injunction involves a public authority that represents the public interest, ahigher threshold applies on the first branch of the Mosaic test whereby those seeking an injunction must demonstrate a “strong primafacie case” not just a “serious issue to be tried”. The Court provided the following helpful

summary in Embee Diamond TechnologiesInc. v Prince Albert (City), 2017 SKQB 128, 62 MPLR (5th) 89 (aff’d on other grounds by the Court of Appeal, 2018 SKCA 44) asfollows: [38] As well, this branch of the test may be heightened when a mandatory injunction is sought against a public authority, as set out byChief Justice Laing (as he then was) in Metz v Prairie Valley School Division No. 208, 2007 SKQB 269 at para 22, 300 Sask R 161: 22 In Saskatchewan, this Court has stated in a number of cases where a mandatory injunction is being sought against a public authorityplaintiffs must establish on the material filed that they have a strong prima facie case on the merits of the claim raised (Vide: Young v.Board of Education of Hudson Bay School Division No. 52, 2001 SKQB 376, 210 Sask.R. 145 (Q.B.), per Smith J. (as she then was) atpara. 5, and Wellington No. 97 (Rural Municipality) v.

Ligtermoet, 2002 SKQB 474, [2003] 3 W.W.R. 339, 228 Sask.R. 135 (Q.B.), atpara. 11, reversed on other grounds at 2003 SKCA 48, 232 Sask.R. 207 (C.A.)). The rationale for requiring the higher standard whenseeking an injunction against a public authority is that the public authority represents the public interest, and should not be temporarilyprevented from acting unless there is real merit to the claim being advanced. Usually in such cases the facts are not much in dispute.

Inthose cases which present complicated factual or legal issues which do not lend themselves to a preliminary assessment, a lower standardof “serious question to be tried” may be appropriate. [39] That there is a difference between serious question to be tried and strong prima facie case cannot be disputed. Cases have held tothis distinction, and in a meaningful way. See the lengthy discussion of Justice Foley in St. Brieux (Town) v Three Lakes No. 400 (RuralMunicipality), 2010 SKQB 73, 354 Sask R 187.

In paras. 26 and 27 of that decision he cites Potash Corporation of Saskatchewan MiningLimited v Todd, Heinrich and Energy and Chemical Workers Union, Local 922 [(1987), (SK CA), 53 Sask R 165 atpara 136] as per Justice Cameron: [136] There can be no doubt the two tests differ, and more than just a little. The strong prima facie case test imposes upon a plaintiff theburden of establishing a strong probability that he will succeed should the case go to trial.

So the relative strengths of the parties’ casesmust be considered by the Chambers Judge before whom the application comes; and he must be satisfied, to the extent required by thestandard, that: (

i) the plaintiff has a right; and (ii) the defendant is infringing it. At one time it was thought that the standard in relation tothose two things differed, that while the plaintiff had to make out a prima facie case in relation to his right, he had only to show anarguable case in respect of the infringement of that right. This approach was rejected, however, in Hubbard v.

Vesper, [1972] 1 All E.R.1023 (C.A.), and rightly so, in my respectful opinion. [Emphasis added by Justice Cameron.] [40] The phrase “strong prima facie case” has been held to mean: a strong probability of success should the case go to trial, or successat trial is more probable than not, or a strong and clear case with a high degree of assurance that an injunction would be rightly granted,or that there is real merit to the claim being advanced.

Strong Prima Facie Case [61] The first legal test in this matter involves an assessment of the strength of the Plaintiffs’ claim to determinewhether they have a strong prima facie case. This is a higher bar than simply ensuring that the claim is not frivolous or vexatious as itwould have been had the test been simply determining whether there was “a serious issue to be tried”. At the very least, I must firstdetermine whether it is more likely than not that the Plaintiffs will succeed in their final application for judicial review.

The greater I findthe likelihood of success for the Plaintiffs in their case, the more likely it is that the scales will tip in their favour when the Court assessesthe overall balance of convenience between the parties and determines the appropriate remedy having regard to the equities and justice

of the situation. [62] At this stage, I will analyze the Plaintiffs’ claim as if I was making a final determination on the matter. Ofcourse, my determination will not bind the Court conducting the judicial review and final analysis of the claim given my ruling is simplyan interim analysis based on the evidence presently filed.

Preliminary Matters [63] Before delving into a review of the legislation and the contextual factors a court must consider as a result, I notetwo preliminary issues which must be addressed in all judicial review applications. [64] Firstly, in perusing the evidence pursuant akin to an examination under Rule 3-56(3), I find that there is no issueof undue delay present in the Plaintiffs’ claim given the Board’s decision occurred on April 25, 2023, and the claim was issued May 24,2023, which was less than a month later.

While this action was not commenced by originating application as contemplated by TheQueen’s Bench Rules, the principle with respect to delay remains the same. [65] Secondly, the nature and factual matrix of this application clearly establishes that there is no adequate alternativeremedy that would be available for the Plaintiffs to consider other than judicial review as is contemplated pursuant to this application. Ifind that the only way that is available for the Plaintiffs to obtain their requested redress is pursuant to a judicial review application.

Framing Judicial Review [66] Having dealt with those preliminary matters, it is useful to frame this judicial review application so as tounderstand the nature of the remedy that will be requested by the Plaintiffs. In Risseeuw v Saskatchewan College of Psychologists, 2019SKCA 9, 437 DLR (4th) 681, the Court stated: [53] I find it helpful to step back and assess Ms. Risseeuw’s position in light of the applicable common law principles. To begin with,an application for judicial review is a request to invoke the court’s supervisory jurisdiction over the exercise of power by a public officialor tribunal.

There is no right per se to prerogative relief even if a party has standing and all of the necessary criteria have been met. Thisprinciple is explained in Brown and Evans [Donald J.M. Brown and The Hon. John M. Evans, Judicial Review of Administrative Actionin Canada, loose-leaf (Rel 2018-3, October 2018) vol 2 (Toronto: Thomson Reuters, 2013)] in this way (at 3-3): All of the discretionary bars are grounded in the notion that, even though a public body may have acted unlawfully, the public interestdoes not always require judicial intervention.

That is, other factors can override the general public interest that governmentaldecision-making accord with appropriate legal norms. [54] Moreover, the court has an overriding discretion to refuse prerogative relief. This reflects the fact that, unlike private law,judicial review is not exclusively directed to the vindication of individual rights (Brown and Evans at 3-1 and 3-2).

In this case, Ms.Risseeuw sought prerogative relief in the nature of certiorari to quash the College’s decision and mandamus to compel the College toapprove her application for full-practicing membership. [67] The Supreme Court of Canada made comments to the same effect in Strickland v Canada (Attorney General),2015 SCC 37, [2015] 2 SCR 713, as follows: [37] Judicial review by way of the old prerogative writs has always been understood to be discretionary.

This means that even if theapplicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see, e.g.,D.J. Mullan, “The Discretionary Nature of Judicial Review”, in R.J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010),420, at p. 421; Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, at p. 575; D.P. Jones and A.S. de Villars,Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100.

Declarations of right, whether soughtin judicial review proceedings or in actions, are similarly a discretionary remedy: “... the broadest judicial discretion may be exercised indetermining whether a case is one in which declaratory relief ought to be awarded” (Dickson C.J. in Canada (Auditor General) v.Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49, at p. 90, citing S.A. de Smith, JudicialReview of Administrative Action (4th ed. 1980), at p. 513). [68] With that broad discretionary framework established as an overarching principle in the judicial review process, Inow turn to the determination of the standard of review.

Standard of Review [69] Given that the Plaintiffs are clearly alleging procedural deficiencies in the notice requirements and within theBoard and committee composition our Court of Appeal in Chenjelani v Institute of Chartered Professional Accountants of Saskatchewan,2022 SKCA 66, has, in the following excerpt, outlined that the applicable standard of review is correctness for such deficiencies: [42] The framework for determining the content and scope of procedural fairness owed to any given individual in an administrativecontext was settled by the Supreme Court in Baker [ (SCC), [1999] 2 SCR 817].

In that decision, L’Heureux-Dubé J.outlined a list of non-exhaustive factors relevant to determining the content of the duty of fairness, as follows: (a) “[T]he nature of the decision being made and the process followed in making it” (at para 23); (b) “[T]he nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (at para 24, quoting Old St.Boniface Residents Assn. Inc. v Winnipeg (City), (SCC), [1990] 3 SCR 1170); (c) “[T]he importance of the decision to the individual or individuals affected” (at para 25);

(d) “[T]he legitimate expectations of the person challenging the decision” (at para 26); and (e) “[T]he choices of procedure made by the agency itself” (at para 27). [43] In addressing the legitimate expectations factor, L’Heureux-Dubé J. indicated that: [26] ... As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to theindividual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed,this procedure will be required by the duty of fairness: Qi v.

Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R.(2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v.

Canada(Minister of Employment and Immigration), (FCA), [1989] 3 F.C. 16 (C.A.). ... (Emphasis added [by Court of Appeal]) [70] The decision in Akpan v The University of Saskatchewan Council, 2021 SKCA 129 [Akpan], provides somefurther considerations in clarifying the Baker factors (Baker v Canada (Minister of Citizenship and Immigration, (SCC), [1999] 2 SCR 817 [Baker]) in the context of determining how to interpret various statutory preconditions as follows: [21] Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86 at paras 26-29, [2020] 4 WWR 212 [Mercredi]; and Fengv Saskatchewan (Economy), 2020 SKCA 6 (Sask.

C.A.) at paras 43-46, 70 Admin LR (6th) 237 [Feng], also discuss this standard. Bothalso emphasize that in deciding what is fair in the circumstances, “[t]he ultimate issue is always whether the process accords with theunderlying values reflected by the duty of fairness” (Mercredi at para 29; Feng at para 45). Further, Kupsar [2020 SKCA 142], Feng andMercredi all affirm that determining the content of the duty calls for a contextual analysis.

As the Court said in Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65 at para 77, 441 DLR (4th) 1 [Vavilov], “the duty of procedural fairness inadministrative law is ‘eminently variable’, inherently flexible and context-specific”. In Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817 at paras 21-28, the Supreme Court listed five non-exhaustive factors thatinform the content of the duty. In Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 122, [2017] 12 WWR 779 [Vo],Ottenbreit J.A. summarized those factors as follows: ...(

i) the nature of the decision being made and the process by which it is made; (ii) the nature of the statutory scheme and the role of theparticular decision within it; (iii) the importance of the decision to those affected; (iv) the legitimate expectations of the personchallenging the decision; and (

v) the choices of procedure made by the agency itself. [22] Here, there was a failure to comply with a prescribed procedural rule. However, such a failure – even if the rule is prescribed bystatute – is not always fatal: Potter v Halifax Regional School Board, 2002 NSCA 88 at paras 116-121, leave to appeal to SCC refused[2003] 1 SCR xv; Oates v Royal Newfoundland Constabulary Public Complaints Commissioner, 2003 NLCA 40, 231 DLR (4th) 648;Canadian Tire Corporation Ltd. v Regina (City) Board of Revision, 2001 SKQB 496, 212 Sask R 142; Robertson v Edmonton (City), (AB KB), [1990] 4 WWR 232 at 242-245.

The decision as to the effect of non-compliance has often been made bydistinguishing provisions that are mandatory from provisions that are directory. In M & D Farm Ltd. v Manitoba Agricultural CreditCorp., (SCC), [1999] 2 SCR 961, Binnie J. explained this distinction: [44] The distinction is well established between legislative provisions that are mandatory (in the sense that non-compliance results ininvalidity) and directory (where non-compliance may in certain circumstances be relieved against): Reference re Manitoba LanguageRights, (SCC), [1985] 1 S.C.R. 721, at p. 737.

In determining whether a statutory directive is mandatory or directory,this Court must be guided by the object of the statute and the effects of ruling one way or the other: British Columbia (Attorney General)v. Canada (Attorney General);

An Act respecting the Vancouver Island Railway (Re), (SCC), [1994] 2 S.C.R. 41 atpp. 123-24. Indeed, these are the most important considerations: Blueberry River Indian Band v. Canada (Department of Indian Affairsand Northern Development), (SCC), [1995] 4 S.C.R. 344, per McLachlin J., at para. 42. [23] See, to the same effect, Merchant v Law Society of Saskatchewan, 2014 SKCA 56 at paras 110-112, [2014] 6 WWR 643;Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 63, 431 NR 286; and United Food and Commercial Workers, Local1400 v Affinity Credit Union, 2019 SKQB 236 at paras 13-20, 310 LAC (4th) 49.

Sara Blake, Administrative Law in Canada, 6th ed(Toronto: LexisNexis, 2017) at 10, offers the following helpful comments on this issue: ¶2.16 Some prescribed procedures must be followed strictly while others are flexible. Which procedural rules are mandatory? A rulemay be prescribed as something that “shall” be done or “may” be done.

Interpretation Acts state that “may” is to be construed aspermissive while “shall” must be construed as imperative.

However, the courts sometimes construe “shall” or “must” as being notmandatory and some doubt the usefulness of the traditional distinction between rules that are mandatory, which must be followed, andthose which are directory and may be waived. ¶2.17 The procedural choices in a specific case should reflect the statutory purposes of the proceeding and of the proceduralrequirement and should ensure that each party has a fair opportunity to be heard consistent with the significance of the effect of thedecision on that party.

If non-compliance with a procedural rule is likely to cause prejudice to a party's right to be heard and if importantinterests of the party are at stake, compliance with the rule may be mandatory. Prejudice must be proven with evidence as it cannot beassumed simply from proof of non-compliance with the rule. Conversely, the public interest and statutory purposes should not bedefeated by overly strict adherence to procedural rules.

Common sense should be applied. (Footnotes omitted) [71] With the standard of review established and the framework for determining the content and scope of proceduralfairness owed determined, I will now outline the legislative framework that is the subject of the dispute between the parties. The Legislation

[ 72 ] The Regulations under The Education Act, 1995 , SS 1995, c E-0.2 [ Act ], that are in issue are as follows: School review 55

(1) Notwithstanding

section 54, the board of education may close any school situated in a school district or discontinue one or more grades taught in the school if: (

a) on or before October 15 of the year before the year in which the potential closure of the school or discontinuance of grades taught in the school is to come into effect, the board of education: (

i) passes a motion to review the school; (ii) adopts the criteria for the review in accordance with this Division, any policies that may be established by the minister, and any policies that may be established by the board of education; and (iii) notifies the public of its intention to review the school and of the review criteria adopted pursuant to subclause (ii); (

b) on or before November 1 of the year before the year in which the potential closure of the school or discontinuance of grades taught in the school is to come into effect, the board of education establishes a school review committee in accordance with

section 59; and (

c) in accordance with this Division, the board of education completes a review of the school and passes a motion to close the school or to discontinue one or more grades taught in the school, as the case may be.

(2) Any policy established by a board of education respecting the carrying out of a school review pursuant to this section: (

a) must not be inconsistent with this Division or any policies that may be established by the minister; and (

b) must be posted on the website of the board of education.

(3) Any amendment made to a policy mentioned in subsection (2) must be posted on the website of the board of education within 30 days after the date on which the amendment is made, together with notice of the amendment. Terms and conditions 56

(1) In this section, “nearest school” means the closest school to the school under review that: (

a) is operated by the same board of education as the school under review; and (

b) has the capacity to accommodate the pupils attending the school under review.

(2) A board of education may only carry out a review of a school pursuant to

section 55 if: (

a) for pupils in kindergarten to Grade 8 who are enrolled in the school: (

i) the nearest school is not more than 40 kilometres from the school under review, based on the shortest route by regularly maintained roads; (ii) at least 90% of those pupils live within 75 minutes of the nearest school if travelling by motor vehicle under normal driving conditions; and (iii) the bo

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