2015 MBCA 116, 2015 MBCA 116

Citation: Lelond v The Park West School Division, Date: 20151209 2015 MBCA 116 Docket: AI14-30-08243 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : EDWARD LELOND ) W. S. Gange ) for the Appellant ) (Applicant) Appellant ) C. P. McNicol ) for the Respondent - and - ) ) Appeal heard: THE PARK WEST SCHOOL DIVISION ) June 3, 2015 ) ) Judgment delivered: (Respondent) Respondent ) December 9, 2015 On appeal from 2014 MBQB 157 BEARD JA I.

THE ISSUES [ 1 ] This is an appeal by the applicant, Edward Lelond, from a decision dismissing his application to quash motions R133- 10 and R149-10, passed by the Board of Trustees (the Board) of the respondent, The Park West School Division (Park West). Mr. Lelond, who is an elected trustee and member of the Board, is challenging the validity of motions passed by the Board to permit the extension of school bus routes to transport students to schools of choice outside of their attendance areas.

It is, in essence, an application for a declaration as to the legality of the motions. [ 2 ] The two grounds of appeal are: (

i) that the application judge erred in finding that Mr. Lelond did not have standing to bring the application; and (ii) that the application judge erred in failing to find that Park West acted without jurisdiction in passing Motions R133-10 and R149-10. II. THE FACTS [ 3 ] Mr. Lelond filed an application for “an order . . . for the determination of rights which depend upon the

interpretation of [Park West] Policy ‘School of Choice/Open Enrollment Administrative Procedures’ or Rule JFB-R and Policy ‘Exception to Policy’ or Rule BFF” and “an order quashing [Park West] Motion R133-10 and Motion R149-10”. The motions read as follows: Motion R133-10: I MOVE THAT we suspend policy on a without prejudice basis and provide transportation to Hamiota Schools for students from the Arrow River area as requested by parents. Motion 149-10: I MOVE THAT we suspend policy on a without prejudice basis and provide transportation to a Miniota student to and from Birtle Elementary.

[ 4 ] The Board and Park West are governed by The Public Schools Act , CCSM c P250 (the Act ).

Section 33 of the Act deals with rules of procedure and states: Rules of procedure 33(1) Subject to the provisions of this Act and the regulations, each school board shall pass by-laws establishing rules of procedure for the guidance of the school board in the conduct of its meetings. Reversal of decisions 33(2) Subject to subsection (3) [which does not apply in this case], a question once decided by a school board shall not be reversed unless (

a) written notice of a proposal to reverse the decision has been given from at least one meeting to another; and (

b) a majority of the total number of trustees for the division votes in favour of the reversal. [ 5 ] The Board adopted The Park West School Division, by-law No 01-09, Procedural By-Law No 01-09 (2 September 2009) (Procedural By-Law No. 01-09), to regulate their proceedings. The portions that are relevant to this matter are sections 4.24(

i) and 4.29 dealing with the reversal of Board decisions: Voting Method 4.24 Reversal of Decisions (

i) Subject to subsection (ii) [which does not apply in this case], a question once decided by the Board shall not be reversed unless: (

a) written notice of a proposal to reverse the decision has been given from at least one meeting to another; and (

b) a majority of the total number of trustees for the Division votes in favour of the reversal (4). Giving of Notice 4.29 Written notice may be given by a trustee from one meeting to the next for the purpose of the following: (

i) reversal of a decision previously made by the Board. (ii) introduction of a by-law. (iii) suspension of policy. [ 6 ] From time to time, the Board adopted policies, one of which was The Park West School Division, Policy BFF, Exception to Policy (1 July 2003) (Policy BFF, Exception to Policy), which states:

When members present at a duly constituted meeting of the Board deem that there are extenuating circumstances requiring re-consideration of a Board policy, and that policy is not grounded in law, regulation or negotiated agreement/contract, the Board may makean exception to the policy for the particular instance and circumstances identified provided that such is supported by a two-thirdsmajority vote of those members present. [7] The Board also adopted a policy regarding the assignment of students to schools, giving the Superintendent thediscretion to identify the attendance area for each school and to designate students within those areas to their respective schools.

It thenadopted The Park West School Division, Rule JFB-R, School of Choice/Open Enrollment Administrative Procedures (12 Aug 2003) (theSchool of Choice Procedure), stating that any variation in the assignment of students was to be done in accordance with this procedure. [8] The School of Choice Procedure also deals with the transportation of Park West students to schools outside of theirattendance area and states: (

i) a student may be eligible for transportation by Park West if the student’s school of choice is within Park West, is a designated schoolfor school bus transportation and there is no change required in the existing bus route (section 8(A)(b)); and (ii) a student attending a school outside of Park West may request transportation; existing routes will not be altered to transport a studentoutside of Park West, but a student may be transported to a transfer point to transfer to a bus from another school division if suitablearrangements can be made (section 8(A)). [9] Requests were made to Park West’s administrative staff for the transportation of six students on Park West buses toschools outside each student’s attendance area, each of which would require the extension of existing routes.

These requests werereferred to the Board and discussed at its meeting of May 19, 2010, with the indication that the Board could suspend the School ofChoice Procedure and grant the requests. Motion R133-10 appeared on the agenda and was tabled to the next meeting because thetrustees present were of the view that notice for the reversal of a Board policy had to be given from one meeting to another.

Whilemotion R149-10 was not on the May 19, 2010 agenda, the underlying request was included on the agenda and discussed at the meeting. [10] The two motions appeared on the agenda for the June 1, 2010 meeting, again with the notation that the School of ChoiceProcedure could be suspended and the requests granted. All nine trustees were present at the meeting. Five trustees voted in favour ofthe two motions, while the other four trustees either voted against them or abstained from voting.

Thus, the motions were passed by amajority of the total number of trustees but not by a two-thirds’ majority. [11] There was no objection raised by any trustee regarding the giving of notice or with the procedure that was followed. Further, no one raised Policy BFF, Exception to Policy. [12] Mr. Lelond’s position was that, by the motions, the Board was granting an exception to the School of Choice Procedureand that the granting of an exception was governed by Policy BFF, Exception to Policy requiring a two-thirds’ majority vote of thetrustees present, or six out of nine, to pass.

As only five trustees supported the motions, he was of the view that the motions did not passand should not have been declared carried. [13] Park West took the position that the Board was not granting an exception to the School of Choice Procedure by passingthe motions. It was of the view that the Board had the authority to reverse its decision regarding transportation and, as well, to suspendthe School of Choice Procedure in that regard.

It argued that, notice of the motions having been given from one meeting to the next inaccordance with the Act and Procedural By-Law No. 01-09, all that was required to carry those motions was a majority of the totalnumber of trustees, being five out of nine. As five trustees supported each motion, it was of the view that the motions were carried. III. THE FIRST GROUND OF APPEAL - STANDING The Application Judge’s Decision [14] The application judge found that Mr. Lelond did not have standing to bring the application.

He noted that both partiesrelied upon the decision by Slatter J in Alberta Liquor Store Association et al v Gaming and Liquor Commission (Alta) et al, 2006ABQB 904, 406 AR 104, as setting out the criteria for determining standing, stating (at paras 22-23): In Alberta Liquor, Slatter J. concluded that it is within the sole discretion of the court whether or not to grant public-intereststanding to an applicant.

Continuing, he observed that the overall criterion that needs to be met is that the person seeking standing must be “aggrieved.” [15] The application judge reviewed the criteria that he found Slatter J had identified for determining whether a party wasaggrieved, reviewed the arguments by the parties and, finally, noted that Mr. Lelond relied upon the decision in Minister of Justice ofCanada et al v Borowski, (SCC), [1981] 2 SCR 575, in support of his position that he had standing.

He found thatBorowski involved a challenge to the validity of legislation and that it was inapplicable because there was no such challenge in this case. He concluded (at para 29): On the facts before me, I find that Lelond has failed to satisfy me that he is an aggrieved person in that he fails to fall within thecriteria indentified by Slatter J. in Alberta Liquor. On that basis, I would deny him standing in this application. As a result, the court hasno jurisdiction to deal with any of the remaining issues presented.

The Positions of the Parties [16] Mr. Lelond is not arguing on this appeal that he is aggrieved and has private interest standing to bring his application. Hisposition is that he is entitled to standing as a ratepayer, resident and school trustee to challenge a decision of a municipal corporation,which includes a school board. For that proposition, he is relying on MacIlreith v Hart (1908), (SCC), 39 SCR 657,which dealt with a challenge to a municipal expenditure by a ratepayer. It must be noted that this case was not raised in argument beforethe application judge. [17] Further, Mr.

Lelond is not arguing that there is any direct expenditure at issue here. Rather, he argues that, in this case,the expenditure that brings his application within MacIlreith is the incidental cost that will be incurred by increasing the distance that theschool buses will have to travel and the time spent to accommodate the requests made by the parents. This cost has not been quantified. [18] In the alternative, Mr. Lelond argues that he has public interest standing pursuant to the criteria set out in Borowski andFinlay v Canada (Minister of Finance), (SCC), [1986] 2 SCR 607.

He states that the application judge erred in holdingthat his application did not meet the criteria set out therein. [19] Park West is not arguing that this Court should not consider MacIlreith because it was raised for the first time on appeal. Rather, it argues that the law on standing has evolved since the release of MacIlreith in 1908.

Its position is that the issue of standing isnow to be determined by the application of the principles set out in a line of cases from the Supreme Court of Canada that includesFinlay. [20] Park West also questions whether jurisprudence that applies to give standing to challenge the actions of a municipalcorporation would apply to a claim against a school board. [21] In

summary, Park West argues that not every person is entitled as of right to challenge administrative actions. Its positionis that standing can be established by showing either private interest standing or public interest standing as set out in the Finlay line ofcases. It takes the position that Mr. Lelond is not able to meet the criteria for standing on either basis and, as a result, he cannot establishthat he has any standing to bring this application. Standard of Review [22] Because the issue of standing pursuant to MacIlreith was not argued before the application judge, he made no decision inthat regard.

Therefore, the principles of standard of review do not apply to this issue. [23] The issue of standing pursuant to the Borowski-Finlay line of cases was determined by the application judge, and thatdecision is to be reviewed on the basis of the applicable standard of review.

The nature of the decision on standing was explained byLaskin J for the majority in Thorson v Attorney General of Canada et al, (SCC), [1975] 1 SCR 138 (at p 161): In my opinion, standing of a federal taxpayer seeking to challenge the constitutionality of federal legislation is a matter particularlyappropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process. [24] This was adopted by Le Dain J as being applicable to the factual circumstances in Finlay (see para 32). (See also Canada(Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 35, [2012] 2 SCR 524.) [25] While the determination of standing is, ultimately, a discretionary decision, the decision can also involve questions oflaw, fact and mixed fact and law.

Questions of law are reviewed on the standard of correctness, while questions of fact and mixed factand law are determined on the standard of palpable and overriding error.

That said, questions that appear to be errors of mixed fact andlaw must be examined to determine whether the error involves an extricable principle of law, in which event the error is reviewed on thestandard of correctness. (See, for example, Towers Ltd v Quinton’s Cleaners Ltd et al, 2009 MBCA 81 at paras 22-23, 245 ManR (2d)70; and Law Society of Manitoba v Mackinnon, 2014 MBCA 28 at para 30, 303 ManR (2d) 223.) [26] Finally, the ultimate decision as to whether to grant standing in a particular case is a discretionary decision and, as such, isreviewed according to a highly-deferential standard.

This was explained in Towers as follows (at para 28): . . . Assuming there have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role indiscretionary matters, barring a decision so “clearly wrong” as to yield a truly unjust result. (See also Penner v Niagara (Regional Police Services Board), 2013 SCC 19 at para 27, [2013] 2 SCR 125.) Analysis [27] Standing is part of the larger subject of entitlement to seek judicial relief.

The issues related to standing were succinctlyexplained by Laskin CJC in Borowski (at p 578): I start with the proposition that, as a general rule, it is not open to a person, simply because he is a citizen and a taxpayer or is either

the one or the other, to invoke the jurisdiction of a competent court to obtain a ruling on the

interpretation or application of legislation, oron its validity, when that person is not either directly affected by the legislation or is not threatened by sanctions for an alleged violationof the legislation. Mere distaste has never been a ground upon which to seek the assistance of a court.

Unless the legislation itselfprovides for a challenge to its meaning or application or validity by any citizen or taxpayer, the prevailing policy is that a challengermust show some special interest in the operation of the legislation beyond the general interest that is common to all members of therelevant society. (See also Downtown Eastside at paras 1-2.) [28] Laskin CJ noted two exceptions to the general rule, one being that set out in MacIlreith regarding “a municipal taxpayeraction to restrain an allegedly illegal municipal expenditure” (at p 579) and the other being the public interest exception set out inThorson (at pp 580-81).

While Laskin CJC was in the minority, these principles are not in dispute. (See also Finlay at paras 18-19 andDowntown Eastside at paras 1-2, 22.) [29] This general rule explains the basis of standing granted to an applicant, whom Slatter J described as “aggrieved” person inAlberta Liquor. He recognized that standing could also be granted on the alternative basis of public interest, but he described that as“rare” (at para 14), and he did not discuss the principles related thereto. (

a) The MacIlreith Exception [30] In MacIlreith, the municipal council (the council) used municipal funds to reimburse the mayor for some travel expenses. A ratepayer of the municipality alleged that the reimbursement was beyond the powers of the council and brought an action to have thefunds repaid. The Supreme Court of Canada agreed that the payment was ultra vires and stated that the issue was whether a residentratepayer had standing to challenge the legality of the payment where the Attorney General and the municipal authorities refused to takelegal proceedings.

The Court unanimously agreed that the ratepayer had independent standing, although the justices did so on differentbases. [31] Two justices, Davies and Duff JJ, determined that ratepayers could maintain such an action where the interference withthe public right (the ultra vires payment of municipal funds) caused them to suffer special damage peculiar to themselves, which gavethem a special interest. The special damage sustained by the ratepayers was the increased municipal tax rates that they would have topay by reason of the misappropriation.

Two other justices, Maclennan J and Fitzpatrick CJ, held that ratepayers could bring such anaction on the basis that the municipal corporation is a trustee for all of its inhabitants and that the inhabitants have the right to compel themunicipal corporation to do its duty properly.

The fifth justice, Idington J, agreed with the majority of the Court of Appeal, which foundthat the ratepayer had standing on both the trust and special interest bases. [32] Two issues arise regarding the applicability of MacIlreith: first, whether MacIlreith, decided in 1908, is still good law, orwhether it has been overtaken by Finlay; and, second, if MacIlreith is still good law, whether it applies to the facts of this case to giveMr. Lelond standing to bring this proceeding. (

i) Is MacIlreith Still Applicable? [33] Prior to Thorson, MacIlreith was considered in two decisions from the Supreme Court of Canada, being Robertson v Cityof Montreal (1915), (SCC), 52 SCR 30; Smith v Attorney General of Ontario, (SCC), [1924] SCR 331,and several appellate court decisions.

The Supreme Court of Canada and most of the appellate courts held that, absent a finding that theindividual was either specifically affected or exceptionally prejudiced, standing was confined to proceedings by ratepayers fordeclarations that past municipal expenditures were ultra vires or to restrain proposed illegal municipal expenditures. These cases alsoindicate that the mere possibility that a policy decision of a municipal council might lead to an overall increase in the municipal rates wasinsufficient to give the ratepayer standing pursuant to MacIlreith.

What seems to be key is that an expenditure has taken place or isinevitably about to take place. (See Davis v Winnipeg (1914), 24 ManR (2d) 478 (KB); Eddy v Millmine (1920), (ONCA), 52 DLR 312 (Ont SC (AD)); Cluff v Cameron (1922), 22 OWN 245 (SC (HCT)), aff’d without comment on this issue, (1922), 23OWN 89 (Div Ct (AD)); Hooper v City of North Vancouver (1922), (BC CA), 65 DLR 286 (BC CA); SMT (Eastern)Ltd et al v Saint John, (NB CA), [1947] 1 DLR 842 (NB SC (AD)); The Queen v Fredericton, (NBCA), [1956] 2 DLR (2d) 551 (NB SC(AD)); Cowan v CBC, (ON CA), [1966] 2 OR 309 (CA), leave to appeal to SCCrefused, [1966] SCR vii; and Barber v Calvert et al (1971), (MB CA), 17 DLR (3d) 695 (Man CA).) [34] See also Thomas A.

Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell,1986) (at p 56): . . . The tendency, until Thorson, was to view the MacIlreith principle as an isolated one, confined strictly, as Duff J. had proposedin Smith, to the area of ratepayers’ actions with respect to ultra vires expenditures or dispositions of property. [35] The Thorson-Finlay line of cases from the Supreme Court of Canada addresses the question of when, absent a finding ofprivate interest standing, a party has standing to challenge the legality of legislation or governmental administrative action.

In addition toThorson and Finlay, this line of cases includes Nova Scotia Board of Censors v McNeil, (SCC), [1976] 2 SCR 265,Borowski and Downtown Eastside. [36] In Thorson, the plaintiff had commenced an action on behalf of himself and all taxpayers for a declaration that the federalgovernment had no authority to enact the Official Languages Act, RSC 1985, c 31 (4th Supp), and no authority to appropriate money tofund its operation.

The lower courts and the dissenting judges in the Supreme Court of Canada applied Smith, maintaining that anindividual had no standing to challenge the constitutionality of an enactment unless he or she was specifically affected or exceptionally

prejudiced, which was not the case with the plaintiff. [ 37 ] Laskin J, for the majority, differentiated Smith on the basis that it involved a regulatory statute, which meant that it was possible for a citizen charged with contravening the statute to impugn its constitutionality, whereas no citizen could ever be charged under the Official Languages Act , and the statute would not otherwise be impugned unless action was taken by the Attorney General.

MacIlreith was considered inapplicable because it related to the ratepayer impugning the expenditure of public funds as being illegal, rather than impugning the constitutionality of the legislation that authorized the appropriation of the funds. [ 38 ] Laskin J went on to find that there were two legal bases for the MacIlreith exception (at p 157): . . .

It is quite clear that obeisance to the special damage requirement was purely formal, and that at least equally important was the fact that ultra vires expenditures were involved which the municipal council was unwilling to reclaim. [ 39 ] The second basis for the exception is not found in the words of the MacIlreith decision. Instead, Laskin J provided a new explanation (at p 158): . . . [I]n MacIlreith v.

Hart , there was a public right involved which had no punitive aspects for any particular ratepayer or class of ratepayers, and it would beget wonder that, in such a case, there should be no judicial means of recovering or controlling an illegal expenditure of public money. [ 40 ] He then asked himself whether the traditional MacIlreith exception that arose from municipal ratepayers’ special damages was also applicable to provincial taxpayers to challenge the constitutionality of legislation involving expenditure of public money where there was no other means of challenge.

He found, as had the minority (see pp 140-43), that there was a difference between an illegal expenditure by a municipality or other public corporation and that by a provincial or the federal government.

He reviewed briefly the evolution of taxpayer class action regarding an allegedly unconstitutional state expenditure in the United States and concluded without any further explanation (at p 161): In my opinion, standing of a federal taxpayer seeking to challenge the constitutionality of federal legislation is a matter particularly appropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process. [ 41 ] While he found that the traditional MacIlreith exception did not apply to a provincial or federal taxpayer, nothing in Thorson appeared to cast doubt on the applicability of MacIlreith to cases involving ultra vires expenditures directly made by a municipal council.

In fact, the majority’s focus on MacIlreith as a case involving illegal expenditures is to be noted.

Laskin J stated that “[c]ase law in Ontario has sanctioned such actions for a long time” (at p 154). [ 42 ] As stated by Cromwell in Locus Standi , “Doubts that may have existed about the authority of MacIlreith were, or ought to have been, completely dispelled in Thorson ” (at p 56). [ 43 ] Thus, it is clear that, while Laskin J adopted a new exception regarding standing to challenge the constitutionality of legislation, he did not question the continued applicability of the traditional MacIlreith exception regarding a municipal ratepayer challenge to allegedly ultra vires municipal expenditures. [ 44 ] The decisions in McNeil and Downtown Eastside further delineate the manner in which a court can exercise its discretion to grant standing in cases dealing with the constitutional validity of legislation.

In those cases, the Court accepts the principle, set out in Thorson , that, where a citizen has no direct interest, standing to impugn the constitutionality of legislation is a matter for judicial discretion and there is minimal comment and no conclusive finding regarding the continued validity of MacIlreith . [ 45 ] This lack of discussion is not surprising, as these cases were constitutional cases and the majority in Thorson , as well as the dissenting judges in Borowski , explained that a taxpayer’s challenge to a municipal expenditure is fundamentally different from a taxpayer’s constitutional challenge to federal legislation, thereby requiring a different approach.

Laskin CJC explained that difference in his dissenting reasons in Borowski as follows (at pp 579-80): There are exceptions to the general rule and to the policy. One of the earliest recognized has been a municipal taxpayer action to restrain an allegedly illegal municipal expenditure: see MacIlreith v. Hart . An explanation of this exception is that it involved a public right to see that municipal expenditures were lawfully made, being expenditures which were limited by considerations that do not apply to a province or to Canada.

No municipal taxpayer could raise a lis in the ordinary sense or court a penalty or other sanction in respect of an allegedly illegal municipal expenditure and, hence, unless a taxpayer action was permitted the illegality would go unchallenged and unchallengeable.

In the provincial and federal field, the issue of an illegal, or perhaps unconstitutional, expenditure would not likely arise per se but, in the main, only (as is alleged in this case) in connection with the operation of challenged legislation; the challenge to the expenditure would thus depend on the outcome of the challenge to the legislation. [ 46 ] That said, Laskin CJC appears to suggest that it might be possible for a federal taxpayer to challenge the legality of federal expenditures pursuant to MacIlreith in situations where there was no constitutional challenge to the underlying legislation that authorized the expenditures.

This would be the issue in the later case of Finlay .

[ 47 ] Finlay involved a non-constitutional challenge to an administrative action, being federal payments made to the Province of Manitoba under the Canada Assistance Plan (the Plan).

The allegation was that the federal payments should not have been made to Manitoba because the payments by the province to the recipients did not conform to the Plan. [ 48 ] After determining that the plaintiff did not have a sufficient personal interest to have personal interest standing, the question became whether the plaintiff should be awarded standing either by applying the Thorson-McNeil- Borowski approach or by applying MacIlreith . [ 49 ] Writing for the Court, Le Dain J acknowledged that, in Thorson , Laskin J viewed the exception to the general rule represented by MacIlreith as a different exception from that in Thorson .

Without making any comment as to the continued validity of the municipal taxpayer exception in MacIlreith in light of Thorson , Le Dain J proceeded to find that the principle in the Thorson -McNeil- Borowski line of cases should be extended to apply in Finlay , and the issue of standing was determined on that basis.

Although the issue of the continued validity of the MacIlreith exception was squarely before the Court in Finlay , it did not overrule that decision. [ 50 ] While there are some appellate court decisions following Thorson that have referred to MacIlreith , few have discussed it in any detail, with the exception of the decision of the Alberta Court of Appeal in Remmers et al v Lipinski et al , 2001 ABCA 188 , 293 AR 156, leave to appeal to SCC dismissed, [2001] SCCA No 502 (QL).

In that case, the municipality lost money as a result of illegal investments made by the municipal treasurer, and a group of ratepayers sued to recover the loss. A central issue was whether the ratepayers had standing to sue. Hunt JA, for the Court, considered the applicability of both the MacIlreith and Thorson exceptions to determine the question of standing, and ultimately determined that the plaintiffs had standing under both exceptions.

There was no discussion of whether MacIlreith had been subsumed by Thorson such that it had ceased to be applicable. [ 51 ] Essentially, then, it appears that the Supreme Court of Canada and the courts of appeal have continued to recognize the traditional exception in MacIlreith , being that a municipal ratepayer has standing to challenge the legality of a municipal expenditure or proposed expenditure. The Supreme Court of Canada has, however, shied away from extending that traditional exception to other situations, including non-constitutional challenges to the legality of federal expenditures.

While the Court has applied the traditional MacIlreith exception narrowly, it has never suggested that it should be overturned. [ 52 ] Thus, I would conclude that, while old, the traditional MacIlreith exception is still good law, albeit to be applied narrowly. (ii) Does MacIlreith Grant Standing in This Case? [ 53 ] In this case, Mr. Lelond has not challenged the legality of an expenditure by the Board. He has challenged the decision to extend bus routes to transport Park West students to schools of choice outside of their attendance areas.

While there may be a cost incidental to the decision under review, that was not the essence of the challenge and there was no evidence that there would be an added cost incurred by Park West. It is possible, for example, that there could be another source of funding to cover this expense. [ 54 ] Further and more importantly, Mr. Lelond’s challenge is not that Park West made or proposed to make an ultra vires expenditure; there is no doubt that Park West had the authority both to grant the extension of the transportation services and to incur related expenditures.

Rather, he is challenging the procedure by which it approved the extension. This does not fall within the very limited type of case for which standing has been granted pursuant to MacIlreith . [ 55 ] There is another issue that arises when applying MacIlreith in this case. MacIlreith and the cases in which it has been applied have been cases challenging an expenditure by a municipality. In this case, the challenge is to an action by a school board, which raises the question of whether the principles in MacIlreith should be extended in this manner. Given that I have found that Mr.

Lelond does not qualify for standing under MacIlreith for other reasons, I do not need to determine this issue. (

b) The Application of Alberta Liquor [ 56 ] As noted earlier, the application judge stated that, in Alberta Liquor , Slatter J held that the overall criterion for public interest standing was that the person be “aggrieved”. In fact, Slatter J did not hold that to be the law. He stated that the test for standing was said to be whether the applicant was “aggrieved” by the administrative decision, but that, if the applicant was not able to establish that it was aggrieved, it may be able to challenge the administrative action in the public interest.

Thus, he found that standing as an aggrieved person was an alternative to public interest standing (see para 7). [ 57 ] The application judge erred in law in his

interpretation and application of Alberta Liquor by failing to appreciate that there are two separate bases upon which to grant standing and in concluding that the overall criterion for public interest standing was that of being aggrieved. (

c) The Finlay Exception (

i) Is the Finlay Exception Applicable? [ 58 ] The application judge rejected Mr. Lelond’s argument that he had standing based on the principles in Borowski and found that it did not apply to this case because this was not a case dealing with the validity of legislation. [ 59 ] The short answer to the issue of the applicability of Borowski is found in Finlay . As noted above, Finlay involved a non- constitutional challenge to an administrative action.

Le Dain J described the issue as follows (at para 14): [The issue of standing involves] a consideration of whether the approach to public interest standing reflected in [ Thorson , McNeil and Borowski ], in which there was a challenge to the constitutionality or operative effect of legislation, applies to a non-constitutional challenge to the statutory authority for administrative action.

[ 60 ] He gave his answer (at para 32): In my view an affirmative answer should be given to this question. The recognized standing of the Attorney General to assert a purely public interest in the limits of statutory authority by an action of his own motion or on the relation of another person is a recognition of the public interest in the maintenance of respect for such limits.

For the reasons indicated in Thorson , I do not think that his refusal to act in such a case should bar a court from the recognition, as a matter of discretion in accordance with the criteria affirmed in Borowski , of public interest standing in a private individual to institute proceedings. [ 61 ] Thus, it is clear that the Borowski criteria for public interest standing are not limited to an application to determine the validity of legislation but extend to applications to determine the validity of administrative actions where the validity of the underlying legislation is not at issue. [ 62 ] The question of the applicability of the Borowski criteria for public interest standing is a question of law, and the application judge’s decision in this regard is reviewed on the standard of correctness.

His failure to apply the Borowski criteria for public interest standing was an error of law, with the result that his finding on standing is owed no deference. (ii) Does Mr. Lelond Have Standing Under Finlay?

(1) Standing Under Finlay—The Legal Principles [ 63 ] As noted above, the criteria for public interest standing in Borowski have been refined by the Supreme Court of Canada since that decision was released, first in Finlay and, most recently, in Downtown Eastside . The following is a

summary of the important principles of public interest standing from Downtown Eastside : - Central to the development of public interest standing is the principle of legality​—that state action should conform to the Constitution and statutory authority and that there must be practical and effective ways to challenge the legality of state action (see para 31). - At the root of the law of public interest standing is the need to strike a balance between ensuring access to the courts and preserving judicial resources (see paras 22-23). - The three purposes of limiting public interest standing are: properly allocating scarce judicial resources and screening out the mere busybody; ensuring that courts have the benefit of contending points of view of those most directly affected; and preserving the proper role of the courts and their constitutional relationship to the other branches of government (see para 25). - The decision to grant or refuse public interest standing, relating as it does to the effectiveness of process, involves the careful exercise of judicial discretion through the weighing of three factors or criteria (see paras 2, 35, 37), those being: (

i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a real stake or a genuine interest in the outcome; and (iii) whether, in all of the circumstances, the proposed suit is a reasonable and effective means to bring the case to court. - The three factors should not be treated as hard and fast requirements or independent tests; rather, they should be taken into account and weighed cumulatively, in light of the purposes of the law of public interest standing, and applied in a flexible and generous manner (see paras 2, 20). [ 64 ] The first factor, being that of a serious justiciable issue, relates to the concern about the proper role of the courts and their constitutional relationship to the other branches of government and, as well, the seriousness of the issue relative to the concern about allocation of scarce judicial resources.

As Cromwell J noted (at paras 41-42): This factor also reflects the concern about overburdening the courts with the “unnecessary proliferation of marginal or redundant suits” and the need to screen out the mere busybody . . . [T]hese concerns can be overplayed and must be assessed practically in light of the particular circumstances rather than abstractly and hypothetically. Other possible means of guarding against these dangers should also be considered.

To constitute a “serious issue”, the question raised must be a “substantial constitutional issue” ( McNeil , at p. 268) or an “important one” ( Borowski , at p. 589). The claim must be “far from frivolous” ( Finlay , p. 633), although courts should not examine the merits of the case in other than a preliminary manner. [ 65 ] The second factor relates to the nature of the plaintiff’s interest in the matter. Cromwell J explained this as (at para 43): . . . [T]his factor is concerned with whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise. . . .

In examining the plaintiff’s reputation, continuing interest, and link with the claim, the Court thus assessed its “engagement”, so as to ensure an economical use of scarce judicial resources . . .

[66] The third factor asks whether the proceeding is a reasonable and effective means of bringing the issue before the court. Cromwell J recognized that this factor had, at times in the past, been applied strictly (see, for example, Borowski at p 598), but found thatit should now be weighed as one of the three factors to be considered (see paras 44-48).

He explained this factor as requiring (at para44): consideration of whether the proposed suit is, in all of the circumstances, and in light of a number of considerations I will address shortly,a reasonable and effective means to bring the challenge to court. [67] The considerations to which Cromwell J refers are those of the purpose of the limits on public interest standing (see para49), the need for a flexible approach (see paras 50-51) and determining whether the proposed action will serve the purpose of upholdingthe principle of legality—that is, ensuring lawful action by government actors.

(2) Standing Under Finlay—Application to This Case (

i) Serious Justiciable Issue [68] The Supreme Court of Canada has not clearly defined justiciability; however, some concept of it can be gleaned from thecomments of that Court. Reference is often made to public rights, to the legality or illegality of a law or of governmental action takenpursuant to a law, and to determining the limits of statutory authority.

Another phrase often used is whether the issue has a “sufficientlegal component” to warrant the intervention of the judicial branch. [69] The case of Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), (SCC),[1989] 2 SCR 49, dealt with the issue of the Auditor General’s access to financial records and Cabinet documents. In a unanimousdecision, Dickson CJC stated that, before dealing with the substantive issues, the question of justiciability had to be addressed.

He setout the issue as, “are the claims which the Auditor General seeks to invoke legally enforceable?” (at p 55). [70] These comments indicate that the concept of justiciability embraces the idea that any question raised by a would-belitigant must have “a sufficient legal component to warrant a decision by a court” (see Reference Re Canada Assistance Plan (BC), (SCC), [1991] 2 SCR 525 at 546).

The issue raised should not be purely political, but should relate to a right recognized bylaw, and should have the practical effect of settling the legal issues in contention and assisting in resolving the controversy. [71] The jurisprudence also requires that the action raise a serious issue.

Cromwell J in Downtown Eastside cited withapproval the following statement by Cory J from Canadian Council of Churches v Canada (Minister of Employment and Immigration), (SCC), [1992] 1 SCR 236 at 252 (at para 26): . . . “It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessaryproliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in theknowledge that their cause is all important.” This factor is not concerned with the convenience or workload of judges, but with theeffective operation of the court system as a whole. (See also Finlay at para 34.) [72] In this case, the essence of Mr.

Lelond’s complaint is that the Board did not apply the correct policy, being Policy BFF,Exception to Policy, when determining whether the motions had carried or were defeated.

That is, that it made a procedural error. [73] In Tweed et al v Assiniboine South School Division No 3 (1982), (MB CA), 18 ManR (2d) 403 (CA),the plaintiffs applied for an injunction to restrain the school board from implementing a resolution to change a high school into a juniorhigh school on the basis that the school board failed to follow a procedure under which policy matters were to be decided by first andsecond reading at successive meetings.

On appeal, Freedman CJM, in a unanimous decision, questioned the authority of the documentsetting out the rules of procedure, stating (at para 12): My first comment is that proof of the authority of this document as a binding instrument is entirely lacking. Is it a by-law? Is it adocument enacted pursuant to a by-law? I do not know, and the material before us does not tell us. But even if the document doespossess more authority than is presently apparent, what is the effect of non-compliance with it?

In my view non-compliance wouldresult in an irregularity and no more. . . . [74] The Act only mentions the requirement that school boards pass policy with respect to the appropriate use of technology,school food and nutrition, respect for human diversity, anaphylaxis and public use of school facilities. (See sections 41(1), 47.3 and47.4.) The Act is otherwise silent about a school board passing policy. [75] The power to pass procedural policies is contained in subsection 33(1) of the Act (see para 4 herein).

If this is thesubsection pursuant to which Policy BFF, Exception to Policy was passed, then the provision clearly indicates that these policies, or“rules of procedure,” are for the guidance of the school board in the conduct of its meetings. It is difficult to see how a rule or procedurefor the guidance of the school board would give a school board member a legal right to enforce that rule or policy. [76] Although there is statutory authority which indicates that a school board decision can be reversed by a majority of allschool trustees (section 33(2)(

b) of the Act), I have found no statutory authority which indicates that an “exception” to a school boardpolicy can be made if two-thirds of the school board members agree. In this case, Policy BFF, Exception to Policy simply does not

appear to have any basis in statute. Without a statutory basis or other legal basis, Mr. Lelond has no legal right to require that it be followed. In the absence of an allegation that a legal right has been violated, the law suggests that there is no justiciable issue involved. [ 77 ] In my view, given the lack of a legal right to have Policy BFF, Exception to Policy followed, the issue raised by Mr. Lelond is non-justiciable. [ 78 ] Further, as noted above, the concept of justiciability also encompasses the seriousness of the issue being raised.

Stated another way, it asks whether the action is a marginal or frivolous suit brought for the particular case of the applicant, who believes that his case is important. [ 79 ] The question of whether an issue is of sufficient seriousness to justify the expenditure of judicial resources is part of the larger discussion of access to justice. As Karakatsanis J, in a unanimous decision, recently stated in Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 (at paras 1 , 25): Ensuring access to justice is the greatest challenge to the rule of law in Canada today. . . .

Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. . . . [ 80 ] While Karakatsanis J was dealing with a motion for

summary judgment within a proceeding that was properly before the court, access to justice is a much wider issue that encompasses the problems that stem from long delays in having a matter heard and determined. For example, access to justice and the problems caused by delays in accessing the system are seen as important issues related to vexatious litigants and vexatious litigation.

In its report entitled Vexatious Litigants: Final Report (April 2006), online: <www.lawreform.ns.ca/Downloads/VL_Final_Report.pdf>, the Law Reform Commission of Nova Scotia stated (at pp 2-3): Access to justice issues are often in the news. . . . We also read about delays in the civil justice system. . . . Vexatious litigants can strain court resources. They can waste the time of judges and administrative staff and prevent other, legitimate claims from being dealt with. They can also force other people to incur otherwise unnecessary legal bills.

Even if a claim seems without merit, the person against whom it is made must still file a defence, or risk losing the case by default. . . . [ 81 ] In Remarks to the Council of the Canadian Bar Association at the Canadian Legal Conference (11 August 2007), online: <www.cba.org/cba/calgary2007/pdf/chiefjustice_remarkscouncil.pdf >, the Right Hon Beverley McLachlin, PC, CJC stated (at p 5): Delay plagues both the civil and criminal justice systems. . . . In both criminal and civil cases, witnesses are less likely to be reliable, as memories fade over time, diminishing the quality of justice.

On the civil side, people need prompt resolution of issues so they can move on with their lives or businesses. They cannot wait years for their cases to be heard. . . . We need to come to grips with these problems, to enable the justice system to provide accessible, efficient and timely resolution of legal issues for the public it serves. [ 82 ] Concerns about access to justice in civil and family claims led to the formation of the Action Committee on Access to Justice in Civil and Family Matters, chaired by The Honourable Thomas A. Cromwell.

In its report entitled Access to Civil & Family Justice: A Roadmap for Change (October 2013), online: < flsc.ca/wp- content/uploads/2014/10/ACCESSActionCommFinalReport2013.pdf >, the Action Committee on Access to Justice in Civil and Family Matters stated (at p 1): There is a serious access to justice problem in Canada. The civil and family justice system is too complex, too slow and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve.

[ 83 ] These are but examples of the many recent reports, articles and cases that are raising concerns about unreasonable delays in the justice system and their effect on the public’s access to justice in the courts and, inevitably, on the reputation of the administration of justice in Canada. [ 84 ] Permitting the litigation of marginal civil cases contributes to access to justice problems by cluttering up court schedules, causing delays in the scheduling of other matters and, generally, taking up court time that could be better spent on more meritorious matters. That said, there is always a balancing.

We must also ensure that the process of adjudication of justice is fair and just and that matters are not too easily dismissed as frivolous or marginal, which would be another form of denial of access to justice. These are all considerations that contribute to the determination of justiciability and whether an issue is of sufficient seriousness to justify the expenditure of judicial resources to come to a resolution.

As is often the case, the ultimate outcome of the balancing of these considerations will be determined by the facts of the individual case. [ 85 ] The complaint in this matter is that Park West did not follow the procedural policy for granting an exception to the School of Choice Procedure. The very marginal value of this issue is demonstrated by the following: - Mr. Lelond argues that the motions each grant an exception to the School of Choice Procedure rather than being a suspension or reversal of it.

I see no meaningful distinction between suspending the School of Choice Procedure to accommodate these families, granting an exception to the School of Choice Procedure to accommodate these families or reversing the decision of Park West regarding the transportation of students in this instance to accommodate these families. Each of these terms, none of which is defined in the Act , Procedural By-Law No. 01-09 or the policies at issue, could apply to this situation, and no basis has been given to prefer one over the other.

At best, they may be alternative procedures. - While Policy BFF, Exception to Policy was not followed, Park West did follow the provisions in the Act for reversing a decision by giving notice from one meeting to the next and complying with the statutory voting requirements.

Thus, Park West did comply with the law as set out in the statute. - The giving of notice as required under the Act provides a level of fairness that is not present in Policy BFF, Exception to Policy, as members absent when a matter arises will get notice and will have an opportunity to address the matter before a vote – something absent from Policy BFF, Exception to Policy. Thus, the procedure that was followed was not unfair and Mr. Lelond was not disadvantaged. - The School of Choice Procedure at issue is no longer in effect – it has been replaced by a different policy.

Only one of the original families still receives transportation services pursuant to the old policy, having been grandfathered when it was changed. Thus, if the decision stands, it is not a precedent for future requests. The cost to Park West, if there is any cost, is marginal and limited to the cost of transporting these children. Thus, any decision will not have any future effect beyond this family. [ 86 ] I fail to see how this issue is of sufficient seriousness, in the circumstances of this case, to justify the expenditure of judicial resources to come to a resolution.

For this reason as well, I would find that it does not meet the requirements for justiciability. (ii) The Nature of the Applicant’s Interest [ 87 ] Cromwell J explained this factor in Downtown Eastside as follows (at para 43): . . . In my view, this factor is concerned with whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise. [ 88 ] This interest encompasses a person or group of people with a genuine interest in the issues being advanced, as demonstrated in Borowski and Canadian Council of Churches .

As was stated in Borowski (at p 598): I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. In my opinion, the respondent has met this test and should be permitted to proceed with his action. [ 89 ] Mr.

Lelond argues that he has a genuine interest in the issues that he is advancing because he is a school trustee for those parents whose children are affected by the change in bus routes and for the ratepayers who must pay more in school taxes for the additional services. I would agree with Mr. Lelond that this is a sufficient interest to meet this criterion. (iii) Reasonable and Effective Means to Bring the Issue Before the Court [ 90 ] In Downtown Eastside , Cromwell J explained this factor as follows (at para 50):

. . . [C]ourts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality. . . . [W]hether a means of proceeding is reasonable, whether it is effective and whether it will serve to reinforce the principle of legality are matters of degree and must be considered in light of realistic alternatives in all of the circumstances. [ 91 ] Cromwell J provides a helpful list of examples of the types of matters that may be useful in assessing this factor (see para 51).

While I am not going to repeat the list, upon reviewing it and taking a flexible approach to the application of this factor, I would find that this is a reasonable and effective means to bring this issue to the court. The underlying issue is not legally or factually complex, such that significant resources would be required to effectively litigate it. It has little public interest beyond those immediately involved. Those most immediately affected, being the families who received the services, are not going to complain, given that they received what they requested.

The relatively small amount of money that is potentially involved makes it unlikely that there is a better party who would be willing to take on the matter. Finally, there is no evidence that this issue would or could have any significant impact beyond those immediately involved. Thus, I find that Mr. Lelond’s application is a reasonable and effective means to bring the issue before the court. (iv) Conclusion [ 92 ] Weighing these three factors in a purposive, flexible and generous manner, I would find that the fact that the issue is not justiciable outweighs the other two factors and I would deny Mr.

Lelond public interest standing to proceed with his application. While I have found that the issue does not meet the criteria of raising a justiciable legal issue, it would also be of such limited effect or utility that permitting it to proceed would not promote the economical use of scarce judicial resources. IV. THE SECOND GROUND OF APPEAL – THE JURISDICTIONAL FINDING [ 93 ] Having decided that Mr. Lelond has no standing to proceed with his application, it is not necessary to consider the second ground of appeal. V.

DECISION [ 94 ] For the reasons set out herein, I would uphold the application judge’s finding that Mr. Lelond has no standing to proceed with his application, albeit for different reasons. As a result, I would dismiss his appeal with costs to Park West. JA I agree: JA I agree: JA