Town of Bridgewater Applicant v. South Shore Regional School Board Respondent Library Heading Judge: The Honourable Justice Mona M. Lynch, 2017 NSSC 73

Supreme Court of Nova Scotia Citation: Bridgewater (Town) v. South Shore Regional School Board , 2017 NSSC 73 Date: 2017-03-20 Docket: Bwt. No. 457414 Registry: Bridgewater Between: Town of Bridgewater Applicant v. South Shore Regional School Board Respondent Library Heading Judge: The Honourable Justice Mona M. Lynch Heard: March 3, 2017 in Bridgewater, Nova Scotia Written Decision: March 20, 2017 Subject: Judicial Review

Summary: The South Shore Regional School Board made a decision to move grades 10, 11 and 12 students from Bridgewater Junior Senior High School to Park View Education Centre with a target date of September 2017. The Town of Bridgewater sought a judicial review of the that decision. Issues:

(1) Did the South Shore Regional School Board breach the principles of procedural fairness, natural justice or any similar administrative law doctrine in making their decision?

(2) Was the decision made by the South Shore Regional School Board and the decision-making process used reasonable? Result: The principles of procedural fairness, natural justice or any similar administrative law doctrine were not breached. The decision and the process used to reach the decision were reasonable. The judicial review is dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. Supreme Court of Nova Scotia Citation: Bridgewater (Town) v. South Shore Regional School Board , 2017 NSSC 73 Date: 2017-03-20 Docket: Bwt.

No. 457414 Registry: Bridgewater Between: Town of Bridgewater Applicant v. South Shore Regional School Board Respondent

Judge: The Honourable Justice Mona M. Lynch Heard: March 7, 2017, in Bridgewater, Nova Scotia Counsel: J.C. Reddy, for the Applicant John C. MacPherson, for the Respondent By the Court: BACKGROUND: [ 1 ] The Town of Bridgewater (Town) filed a Notice for Judicial Review on November 10, 2016. They are seeking a review of the decision by the South Shore Regional School Board (SSRSB) to move students in grades 10, 11 and 12 from Bridgewater Junior Senior High School (BJSHS) to Park View Education Centre (PVEC) when the interior renovations at PVEC are substantively complete with the target being September 2017.

There were two motions passed by the SSRSB at their meeting of September 28, 2016. The first motion dealt with the move of the students which passed by a vote of five for and three against. The second motion set out the timing of the move, when the renovations were substantively complete, and it passed by a vote of six for and two against. [ 2 ] PVEC is more than three kilometers from BJSHS. BJSHS has two buildings, one currently for the Junior High School and one for the High School.

The SSRSB plans to continue to use both buildings but there will no longer be high school students or high school programming in either of the two buildings. [ 3 ] Prior to the motion being passed at the SSRSB meeting of September 28, 2016, there had been a review of the BJSHS family of schools and the PVEC family of schools.

On October 28, 2015, the SSRSB passed a motion to review the two families of schools. [ 4 ] In 2013, the SSRSB had approved a four-year renovation at PVEC. [ 5 ] The SSRSB followed the Nova Scotia Education and Early Childhood Development School Review Policy which was adopted by the Minister of Education in 2014 pursuant to

Section 89 of the Education Act, Stat. N.S.1995-96, c. 1. This School Review Policy is mandatory when the permanent closure of a public school is a possibility (p.1 of Policy). In keeping with the Review Policy, a School Options Committee (SOC) of 20 representatives was struck with the requisite members. Included were two members of the School Advisory Committee from each school in each family of schools and two community/business representatives. This resulted in the SOC being comprised of 15 members from the PVEC family of schools and 5 from the BJSHS family of schools.

A facilitator was appointed. [ 6 ] The mandate of the SOC was: 1. To conduct a review, with public consultation of Bridgewater and Park View Families of Schools. The review will include – catchment area, cross boundary registrations, facility utilization, operational costs, grade configuration, program options and P3 renewal recommendation. 2. To submit a Report and Recommendations to the School Board which will inform the Board’s final decision. [ 7 ] The Review Policy set out the process and the timelines for the work of the SOC.

The SOC had a minimum of 90 days and a maximum of 150 calendar days from its formation to complete the review. The SOC was required to hold at least three public meetings. The SOC held a total of 13 meetings, including three public meetings, from the date it was formed, November 26, 2015, until its final meeting on May 3, 2016. [ 8 ] The decision by the SOC to recommend moving grade 10-12 students from BJSHS to PVEC was made on March 30, 2016 with a vote of 11 for and 7 against. The report from the SOC dated May 12, 2016 contained both its recommendations and the reasons for those recommendations.

The SOC report and recommendations were presented to the SSRSB at a special meeting on May 12, 2016. [ 9 ] After receiving the recommendations from the SOC, the SSRSB heard concerns from some members of the SOC about the process and procedures followed by the SOC. Because of the expressed concerns, the SSRSB decided on May 18, 2016 to pause the School Review process and obtain an independent report to review the process undertaken by the SOC. [ 10 ] The independent report (the MacNeil report), dated July 6, 2016, was received by the SSRSB in a special meeting on July 14, 2016.

The author of the independent report was of the opinion that the process prescribed by the Review Policy and the principles of administrative fairness were adhered to by the SOC. The author did make some recommendations to the Minister of Education for improvements to the School Review Policy. [ 11 ] The SSRSB held meetings on September 14 and 21, 2016 to consider the recommendations of the SOC. The SSRSB requested additional materials from staff, presentations were heard as was correspondence from members of the public.

On September 28, 2016, the two motions which are the subject of this Judicial Review were passed. ISSUES:

[ 12 ] The Issues set out in the brief provided by the Town were: 1. Did the Respondent Board breach the principles of procedural fairness and/or natural justice and/or any similar administrative law doctrine by commencing a substantial renovation of the Park View Education Centre (PVEC) before the School Review process was complete, effectively pre-empting the outcome of the School Review? 2.

Did the Respondent Board breach the principles of administrative fairness and/or procedural fairness and/or natural justice or any similar administrative law doctrine, both in interpreting its own guiding legislation and policies, as well as through the Board’s general conduct during the course of the said school review? 3.

Did the Respondent Board breach principles of natural justice and/or any other similar administrative law doctrine in failing to properly consider and/or implement the recommendations contained in the report authored by Alphonse MacNeil entitled “Independent Review of the Bridgewater and Park View Family of Schools Review” as received by the Board on July 14, 2016 (“the MacNeil report”)? 4.

Did the Board breach the principle of procedural fairness by commenting on public record after the school review was complete that the Board was not required to utilize the aforementioned “school review” policy even though it had effectively used said policy in the course of its review, thus misleading the SOC and misrepresenting the school review process to both the SOC and the public at large? 5.

Did the Respondent Board and/or School Options Committee (“SOC”) appointed by the Board fail to properly follow the Nova Scotia Education and Early Childhood Development School Review Policy, as established pursuant to the Education Act of Nova Scotia, in conducting a school review of the Bridgewater and Park View family of schools by: a. Providing mandates and objectives to the SOC that were too extensive and unmanageable for the time allotted to the SOC and the SOC’s level of expertise and size, and b. Providing advice to its members to the effect that the members should not attend public SOC meetings?

LEGISLATION: [ 13 ] Sections 89 and 89A of the Education Act of Nova Scotia read: School review policy 89

(1) The Minister shall develop and adopt a school review policy that sets out the processes to be followed by a school board for considering or implementing a decision to permanently close a public school, which policy must include (

a) the circumstances that may lead to a review of schools for permanent closure; (

b) the establishment and composition of school review committees; (

c) the information that school boards are to provide to school review committees and to the public; (

d) the support that school boards are to provide to school review committees; (

e) the subject-matter that school boards are to include in the terms of reference of school review committees; (

f) the process that school boards and school review committees are to follow after a school review is initiated by a school board, including requirements for notices and public meetings to consult with respect to the options available to the school board; (

g) time lines that are to be followed in a school review process; and transitional plans that are to be implemented by school boards following a decision to permanently close a public school.

(2) Subject to the regulations, a school board may not permanently close a school except in accordance with the school review policy adopted by the Minister. 2014, c. 13, s. 2 . School deemed permanently closed

89A A public school is deemed to be permanently closed if (

a) all of the school buildings have been vacant for at least one school year prior to the cominginto force of this Section; (

b) the buildings are not being renovated; and (

c) no students are attending the school. 2014, c. 13, s. 2. STANDARD OF REVIEW: [14] The issues raised by the Town call for two different standards of review. For the issues alleging a breach of procedural fairnessthe standard is as set out in Jono Developments Ltd. v. North End Community Health Association, 2014 NSCA 92 at paragraphs 41 and42: [41] The reviewing judge correctly identified the principle that no standard of review analysis governs judicial review, where thecomplaint is based upon a denial of natural justice or procedural fairness. (See for example, T.G. v.

Nova Scotia (Minister ofCommunity Services), 2012 NSCA 43, leave to appeal refused, [2012] S.C.C.A. No. 237, at ¶90). [42] Instead, a court will intervene if it finds an administrative process was unfair in light of all the circumstances. This broad question,which encompasses the existence of a duty, analysis of its content and whether it was breached in the circumstances, must be answeredcorrectly by the reviewing judge (see: T.G. v. Nova Scotia (Minister of Community Services), supra, at ¶8; Communications,Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co.

Ltd.,2010 NSCA 19, ¶28; Nova Scotia(Community Services) v. N.N.M., 2008 NSCA 69, ¶40; and Kelly v. Nova Scotia Police Commission, 2006 NSCA 27, ¶21-33. Thus, the determination to be made on the issues of procedural fairness or natural justice is whether the process was unfair in light of allthe circumstances. [15] The standard of review for the decisions is set out in Dunsmuir v. New Brunswick, 2008 SCC 9 , 2008 SCC9 atparagraph 51: [51] Having dealt with the nature of the standards of review, we now turn our attention to the method for selecting the appropriatestandard in individual cases.

As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legalissues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract astandard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. Reasonableness was also found to be the correct standard of review for school board decisions in Delorey v. Strait Regional SchoolBoard, 2012 NSSC 450 paragraphs 59 and 60.

The test to be applied is most recently set out in Nova Scotia Government and GeneralEmployees Union v. Metro Community Living Support Services Ltd., 2017 NSCA 15 at paragraph 19: … The leading case is Dunsmuir v. New Brunswick, 2008 SCC 9 where the Supreme Court of Canada invites reviewing courts toconsider reasonableness in the context of: (

a) the Board’s decision-making process and (

b) the outcome. The former must reflect“justification, transparency and intelligibility” while with the latter, the result must fall “within a range of possible, acceptableoutcomes”: … DUTY OF FAIRNESS: [16] The SSRBS asks the court to find that no duty of fairness is owed to the Town. They have provided the court with many casesfrom other provinces which stand for the principle that unless the decision made is to close a school that no duty of fairness is owed.

The Town responds on two fronts, one that the decision here is a de facto school closure and that in any event the SSRB owes a duty offairness to the citizens of the Town, whom the Town serves and represents in this proceeding. [17] It is clear that the decision in this case does not fall into the definition of school closure set out in s. 89A of the Education Act. While the high school students would move to PVEC, the building formerly occupied by the high school students will still be used as aschool.

There are no plans to close the school building. [18] The Town however submits that it is a school closure in the sense that if the decision of the SSRSB stands Bridgewater HighSchool will cease to exist. [19] I find that I do not have to decide if the decision here is a school closure or a de facto school closure after considering thedecision in Potter v. Halifax Regional School Board, 2002 NSCA 88. In Potter the School Board took the position, as they do here, thatno duty of fairness was owed.

Potter did involve the closure of a school and the Court sets out some general principles for judicialreview of School Board decisions and the duty of fairness. The Court found in Potter: • It is now well-established that as a general common law principle, there is a duty of procedural fairness lying on every publicauthority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of anindividual (paragraph 34);

• Legislative decisions which are excluded from the ambit of procedural fairness are general in nature and administrative decisions are specific (paragraph 35); • The primary function of school boards is the formulation of policies in respect to the delivery of educational services to students; school boards are subject to judicial review only in limited circumstances and generally school boards are not subject to judicial review when exercising its policy-making function in reaching a decision (paragraph 36); • The decision to close a particular school is one having an administrative and specific, rather than a legislative and general nature (paragraph 37); • Decisions closer to the “legislative and general” end of the spectrum have two characteristics: generality (the power is of “general application and when exercised will not be directed at a particular person”) and a broad policy orientation in that the decision creates norms rather than decides on their application to particular situations (paragraph 40); • When a school board decides to close a specific school or specific schools, it is applying policy and general considerations but to particular situations which are not so close to the legislative and general end of the spectrum as to foreclose entirely any duty to act fairly (paragraph 40); At paragraph 39 and 41: [39] As set out in Knight (supra) , legislative decisions are to be distinguished from acts of a more administrative and specific nature.

I have found the following passage from S.A. De Smith's text, Judicial Review of Administrative Action , [3 rd ed.], 1973 London: Stevens at p. 60 on the distinction between administrative and legislative acts helpful for my analysis: The distinction between legislative and administrative acts is usually expressed as being a distinction between the general and the particular.

A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. [41] In determining that a decision to close a particular school or schools is an administrative decision rather than a legislative one exempt from the application of the duty of procedural fairness, I agree with and adopt the reasoning in Elliott (supra) .

In that decision involving a school closure, Green J.A. (as he then was) for the Newfoundland Court of Appeal quoted the passage from De Smith, Judicial Review of Administrative Action set out above in ¶ 20 of his decision.

At ¶ 19 and 21 he wrote: 19 The closer a decision comes to being plenary in nature, both in terms of its general impact on the totality of persons affected by it and in terms of the application of policy considerations that transcend the individual interests of thos epersons, the closer it approaches a legislative act that should not attract a general duty of procedural fairness or at the very least, the greater will be the necessity for flexibility in the formulation of the duty as it affects the particular decision in issue. . . . 21. . . notwithstanding the generalized impact of the decision on parents and others and the necessity for the board to consider broad policy questions, there is a qualitative difference between the impact on parents of children in the closed school and those other parents who live in the district.

Furthermore once a question becomes refined to whether a particular school should be closed, such a decision is not, in De Smith’s words, “the creation and promulgation of a general rule of conduct without reference to particular cases” but, rather "the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice." As the decision in Newfoundland Telephone indicates, different standards of fairness may apply at different stages of a decision-making process.

Once the process begins to approach a situation where a decision may be made affecting a particular case it moves away from the truly legislative, towards a situation where it is appropriate to accord the persons particularly affected with at least a modicum of procedural protection. (Emphasis in original). [ 20 ] While the SSRSB classifies the decision as a grade configuration, it is more than that. There is an impact on the rights of parents, children and residents of the Town that is significant. The decision is in relation to a particular school, it is not a general policy.

The policy and general considerations are being applied to a particular school. The decision is not so close to the legislative and general

end of the spectrum as to foreclose entirely any duty to act fairly. The decision is not just a policy-making function of the SSRSB. As the Court of Appeal found in Potter , determination of the nature of the decision is the first factor to consider when deciding whether a duty of procedural fairness is owed (paragraph 42): [42] Determination of the nature of the decision made is the first of the factors to be considered in deciding whether a duty of procedural fairness is owed in any particular circumstance according to Knight (supra) at ¶ 24: The existence of a general duty to act fairly will depend on the consideration of three factors: (

i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual's rights. This Court has stated in Cardinal v. Director of Kent Institution, supra, that whenever those three elements are to be found, there is a general duty to act fairly on a public decision-making body ... The nature of the decision satisfies the first factor in Knight. [ 21 ] In relation to the second factor in the Knight decision, the SSRSB, followed the School Review Policy as set out in the Education Act.

The School Review Policy itself provides in its objectives: POLICY OBJECTIVES The review of schools in Nova Scotia is an important process, providing information and the opportunity for school communities to participate in school boards’ decision-making processes regarding the future of education delivery.

The school review process will ensure that • the future of a local school is part of a plan for the broader school region and parents and communities are able to contribute to the solutions for the region; … • the principles of administrative fairness are maintained; [Emphasis Added] … The objectives in the Review Policy provide for the community to participate and requires the School Board to ensure that principles of administrative fairness are maintained.

While the Town is not the parent of an affected student, the school is in the Town, the Town owns the two buildings which now hold the BJSHS and the Town represents the community and the people they serve. The second element of Knight is satisfied. [ 22 ] With regard to the third element of Knight , the SSRSB argues that since the decision was not made to close the school that a duty of fairness was not owed. The School Review Policy must be used when the closure of a school is a possibility and the SSRSB has agreed that the closure of BJSHS was a possibility in this case.

The SOC was to look at facilities as part of their mandate. Even if the SOC had not recommended a school closure, it was open to the SSRSB to vote to close the BJSHS. The procedure to be followed and the fairness of that procedure is not retroactively changed by the decision made in the end.

The process when considering closing a school requires, as the School Review Policy provides, “the principles of administrative fairness are maintained”. [ 23 ] The decision and process used to determine whether to possibly close a school has an affect on the privileges and interests of the students, parents and citizens in a community, here the Town. Paragraphs 49-51 of Potter read: [49] The closure of a school has been found to affect “privileges or interests”.

In Pytka (supra) where no statutory duty was established in the governing legislation, Saunders, J. (as he then was), after noting that a parent’s decision where to reside is often dependent upon access to a particular school, determined at ¶ 43 that the ability to attend a particular school is an interest or privilege which would be adversely affected by a board’s decision to close. The comments in Ross v. Avon Maitland District School Board, [2000] O.J. No. 1714 (Sup. Ct.

Just.) at ¶ 44 on the impact of the closure of the only high school in a community are also illustrative of interests that may be affected. [50] The education, development, and safety of their children are of critical importance to parents. Parents know with bone-deep certainty that the schools their child attends will shape him or her in many ways. Many chose their child’s schools with care and make major decisions

around those choices. A school’s programs, its facilities and their condition, its teachers and other staff, its class sizes, its distancefrom home, and its sense of community are but some of the factors that will influence a child’s learning and personal development, andoften even the day to day routine of that child’s family. The closure of a school means reassignment of its students to another or otherschools which will likely be disruptive in many ways and require adjustment. When such circumstances are considered, it cannot bedoubted that parents have an interest which is seriously affected by a decision by the Board to close the school their child is attending. [51] In

summary, all three elements in Knight (supra) have been established. It is my opinion then that when the Board makes adecision to close a specific school, it is not exercising a policy or legislative function which exempts it from any obligation of proceduralfairness to the parents of the children attending that school. Rather, such a decision being one of an administrative nature and having animportant impact, the Board is under a common law duty to act fairly when making such a decision.

In this regard, I would echo thecomments of Saunders, J. in Pytka (supra) at ¶ 44: Of all its functions, a decision to close a school must surely be one of the most significant with which the Board is entrusted.Given that responsibility and the consequences to all constituents, (whether the school is closed or not,) the Board's dutyof fairness will include an obligation to provide procedural fairness to all parties whose interests and privileges are affected. [Emphasis Added] All the privileges and interests outlined above are affected by the decision of the SSRSB to move the high school students from BJSHSto PVEC.

Decisions to live close to a school where your child will be attending are affected as the child will no longer be attending thatschool but a school more than three kilometers away. Decisions as to programs, facilities and their condition are affected. Teachers andother staff will be different. Class sizes and distance from home are affected, as is the sense of community. All of these affect students,parents and the citizens of the Town. The Town has an interest in the decision of the SSRSB. [24] I am satisfied that all of the elements in Knight have been established.

The SSRSB was under a common law duty to act fairlywhen they made the decision under consideration here. They are also required by the Education Act to follow the School Review Policywhich requires that the “principles of administrative fairness are maintained”. [25] Finding that the SSRSB owed a duty of fairness to the Town does not determine the extent of the duty. As in Potter (paragraph52), Jono (paragraph 91), - it is not a fixed standard and it does not have the rigidity required in a court.

At paragraph 75 of Potter thedegree of procedural fairness is discussed: [75] It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislatorintended the duty to observe procedural fairness to apply: see The Attorney General of Canada v. Inuit Tapirisat of Canada (supra) at p.755. As indicated earlier, the concept of procedural fairness varies with the context of the particular statute and the rights affected: Knight (supra) at ¶ 46.

Statutory procedural directives can be considered with other factors relevant to determining the content of a dutyof fairness. In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; [1999] S.C.J.No. 39, the Supreme Court of Canada set out a non-exhaustive listing of the criteria to be considered in determining what is theappropriate duty of fairness in a given set of circumstances. These include: (

a) the nature of the decision being made and the process followed making it; (

b) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (

c) the importance of the decision to the individual or individuals affected; (

d) the legitimate expectations of the person challenging the decision; and (

e) the choices of procedure made by the agency itself. [26] Here, the SSRSB followed the School Review Policy which was approved by the Minister of Education and required by theEducation Act when school closure was a possibility. The importance of the decision to the people of the Town is outlined above. TheTown expected the SSRSB to follow the policy prescribed in the legislation and that is the procedure followed for the most part. [27] The School Review Policy provides for public meetings, public representation on the SOC, procedures for reaching decisions andtimelines. It provides that the principles of administrative fairness be maintained. Having created a School Review Policy which

provides for procedural fairness it is reasonable to expect that it would be followed. The School Review Policy provides to the Townand its citizens a meaningful opportunity to present their case fully and fairly (Potter paragraph 81). The duty of fairness owed is as setout in the School Review Policy.

ANAYLSIS OF THE ISSUES: Issue One: Whether the SSRSB breached the principles of procedural fairness and/or natural justice and/or any similaradministrative law doctrine by commencing a substantial renovation of PVEC before the school review was complete, effectivelypre-empting the outcome of the school review? [28] The purpose of a judicial review is to ensure the legality, the reasonableness and the fairness of the administrative process and itsoutcomes (Dunsmuir paragraph 28.) [29] In considering all of the issues raised by the Town, it must be remembered who the decision maker was.

The SOC merely madea recommendation for the SSRB to consider, they were not the decision maker. [30] This issue raises a reasonable apprehension of bias. [31] The SSRSB decided in 2013 to undergo renovations at PVEC. At the time the decision was made the possibility that studentsfrom BJSHS would move to PVEC was stated. Both PVEC and BJSHS were experiencing declining enrollment, although the declinewas projected to be greater at PVEC than BJSHS.

The recommendation from the SSRSB to review the BJSHS and PVEC families ofschools mentioned the possibility of the movement of students to PVEC from BJSHS for the School Review to consider. Members ofthe SOC felt that they were being rushed into making a decision. The SSRB, when reviewing the recommendations from the SOC inSeptember 2016, discussed whether the decision to move the students was made at the time the renovations for PVEC were decided. The test for a reasonable apprehension of bias is set out in R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484 at paragraph 111: The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasonsin Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394: [T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the questionand obtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically andpractically – and having thought the matter through -- conclude. . . .” This test has been adopted and applied for the past two decades.

It contains a two-fold objective element: the person consideringthe alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. SeeBertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge ofall the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised alsoof the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14.

See alsoStark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person shouldalso be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness andacknowledgement of the prevalence of racism or gender bias in a particular community. The onus is on the Town to show bias (Wewaykum Indian Band v. Canada, 2003 SCC 45 at paragraph 73). In Old St. BonifaceResidents Assn. Inc. v.

Winnipeg (City) (SCC), [1990] 3 SCR 1170 at p. 1197 the test is stated as requiring the membersto be “capable of being persuaded” and that the party alleging bias must establish a prejudgment of the matter “to the extent that anyrepresentations at variance with the view…would be futile”. In Newfoundland Telephone Co. v.

Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 SCR 623, p. 642 and 644 the test is referred to as the“closed mind” test. [32] The concerns raised by the Town about the 2013 renovation request for PVEC do not rise to the level of establishing that themembers of the SSRSB had a closed mind, that representations at variance with the move would be futile, or that a reasonable, fair-minded person, informed person would conclude that the decision was not made fairly. The SOC considered different scenarios onewhich came about as the result of a public meeting.

The SSRSB considered the recommendations of the SOC but they also asked formaterial from staff, heard presentations and reviewed correspondence from the public. The SSRSB had a responsibility to ensure propermanagement of the school buildings and had to plan for the declining enrollment numbers. The SSRSB decision to move the highschool students from BJSHS was not made with a closed mind to the options. There was no reasonable apprehension of bias.

Issue 2: Did the Respondent Board breach the principles of administrative fairness and/or procedural fairness and/or naturaljustice or any similar administrative law doctrine, both in interpreting its own guiding legislation and policies, as well as throughthe Board’s general conduct during the course of the said school review?

[33] This issue raises the question as to whether the SSRSB followed the School Review Policy. The concerns are the pause put in place by the SSRSB when they were made aware of procedural fairness concerns by members of the SOC and failure to comply with the timelines in the School Review Policy in making their final decision. [34] Clearly there is no provision in the School Review Policy for a pause as was put in place by the SSRSB. It is also clear that they did not make their decision within 30 days of the SOC’s Report and Recommendation as required by Directive P (v.) of the School Review Policy.

However, that is the not the end of the consideration. [35] The SSRSB submits that they did not need to follow the School Review Policy because their final decision was not to close a school. The Town’s position is that it is a de facto school closure. The School Review Policy is to be followed when closure is a possibility which the SSRSB acknowledges was the case here. Until the final decision of the SSRSB is made it is not known whether there will be a closure of a school.

To not require the procedural fairness offered by the School Review Policy based on the final decision is not an acceptable approach to review procedural fairness. It has already been determined that procedural fairness was owed to the Town and the extent of that fairness is as set out in the School Review Policy. [36] In Potter at paragraphs 116 to 121 and 131 , the court reviews whether breaches of procedural provisions will have invalidating consequences. The first task is to determine whether a procedural provision is mandatory or directory. If mandatory, compliance is necessary.

If directory the irregularity may not affect the validity and prejudice and the extent of that prejudice must be considered (paragraph 117).

Whether a procedural provision is mandatory or directory is not determined solely by the use of “shall” or “may” at set out in Potter at paragraph 119 : [119] Sara Blake in Administrative Law in Canada , [3 rd ed.] 2001, Butterworths, says this on the issue of whether a procedural provision is mandatory or directory at p. 10: The issue is not determined solely by the type of enactment prescribing the rule, whether it be statute enacted by the legislature or mere directive issued by the tribunal.

A tribunal is sometimes required to comply with its non- statutory procedural rules, especially where parties have acted in reliance on procedure described by them. Conversely, it may be excused for failing to comply with statutory and regulatory rules of procedure if no party is prejudiced by noncompliance. ... ... This issue requires a common sense approach to the circumstances of each case. Procedures essential to a fair hearing are mandatory, while less essential procedures may be overlooked if no unfairness would result.

Thus, if non-compliance with a procedural rule is likely to cause prejudice to a party’s right to be heard, compliance with the rule may be andatory. Conversely, if non-compliance does not cause any prejudice, then the rule may be only directory. Some prescribed rules may be thought to be more important than others.

Rules that require every party to be notified of the case to be met and given an opportunity to respond are of high importance because failure to comply may completely deprive a party of the right to be heard. [37] In the present case, the directive in the School Review Policy used the word “must” in relation to the timeline for the SSRSB to make its final decision. The reason that the timeline was missed was that the SSRSB was trying to ensure that process used by the SOC was procedurally fair. They asked for an independent review and received the MacNeil report.

When they received that report, in the middle of the summer, they put off the decision to the first meeting of the SSRSB in September. In September, they did not rush the decision, they sought further information, heard presentations and considered correspondence from the public. It would be a perversion to suggest that their efforts to make sure the process was fair meant that the decision was invalid. [38] There is no penalty provided in the School Review Policy for failure to follow the timelines. The failure to comply with the 30 day timeline was not a substantial deviation from the procedure.

It was done for good and valid reasons. It was the fairest and most responsible course of proceeding. The timeline to make a final decision is directory and does not invalidate the decision. There is no evidence of prejudice to the Town from the failure to comply with the timeline, or to pause to receive and independent review of the process to ensure procedural fairness. Neither the pause nor the failure to follow the 30 day timeline made the process unfair.

Issue 3: Did the Respondent Board breach principles of natural justice and/or any other similar administrative law doctrine in failing to properly consider and/or implement the recommendations contained in the report authored by Alphonse MacNeil entitled “Independent Review of the Bridgewater and Park View Family of Schools Review” as received by the Board on July 14, 2016 (“the MacNeil report”)? [39] The MacNeil report recommended changes be made to the School Review Policy. The SSRSB did not make the School Review Policy and do not have the power to change it.

Any recommendations to change the policy would be directed to the Minister of Education. The SSRSB cannot be faulted for failing to implement or consider the recommendations. Members of the SOC raised concerns about the fairness of the process used by the SOC and the SSRB asked for an independent review of the process. Once they received the independent report which stated that the process was fair, they continued with the process to make their decision.

Issue 4: Did the Board breach the principle of procedural fairness by commenting on public record after the school review was complete that the Board was not required to utilize the aforementioned “school review” policy even though it had effectively

used said policy in the course of its review, thus misleading the SOC and misrepresenting the school review process to both the SOC and the public at large? [40] Once the SOC had finished their work and the timelines were not adhered to for a final decision by the SSRSB, the Superintendent of Schools told the members of the SSRSB that the School Review Policy was being used as a guideline. There is no breach of procedural fairness and no prejudice to the Town from this understanding or misunderstanding. The SOC had finished their work and could not be misled. The SOC was not the decision maker. The SSRSB was.

There is no evidence that the public or citizens of the Town suffered prejudice or relied to their detriment on the statement of the Superintendent. Issue 5: Did the Respondent Board and/or School Options Committee (“SOC”) appointed by the Board fail to properly follow the Nova Scotia Education and early Childhood Development School Review Policy, as established pursuant to the Education Act of Nova Scotia, in conducting a school review of the Bridgewater and Park View family of schools by: a.

Providing mandates and objectives to the SOC that were too extensive and unmanageable for the time allotted to the SOC and the SOC’s level of expertise and size, and b. Providing advice to its members to the effect that the members should not attend public SOC meetings? [41] These issues are reviewed under the standard of reasonableness. Deference is owed to the SSRSB in making a decision which is within their power and expertise to make. The Minister of Education has given the power to School Boards to make decisions on whether to close schools. The court cannot substitute a decision that it prefers.

The determination for the court is as stated above in Nova Scotia Government and General Employees Union v. Metro Community Living Support Services Ltd. , at paragraph 19 -- the decision-making process must reflect “justification, transparency and intelligibility and the outcome must fall within a range of possible, acceptable outcomes. [42] The Town has concerns regarding the mandates and objectives of the SOC, the timelines given the SOC, the level of expertise of the SOC and the size of the SOC.

The size of the SOC, the timelines for the SOC and the makeup of the SOC are mandated by the School Review Policy. [43] The rationale for reviewing both families of schools together is in page 181 of the Record. It was based on geographic closeness; the BJSHS family being completely surrounded by the PVEC family of schools; students in and just outside of the Town attending schools in both families; and it was logical to explore various solutions to the issues of catchment areas, cross boundary registration, etc. for both at the same time.

The decision to review both schools at the same time was reasonable. [44] The Town has also raised the concern that the decision was rushed because there was a school board election in October and the SSRSB wanted to make the decision before the election. That is not unreasonable given the fact that the review process had been underway for almost a year and the members of the SSRSB in September 2016 were very familiar with the process and the material.

To put off the decision to be decided by the new members of the SSRSB would not have been reasonable as those new members would have had to become familiar with everything that was within the knowledge of the members of the SSRSB who made the decision. [45] The process and mandate of the SOC is not relevant to this review. The SOC did not make the decision under review. The SSRSB was made aware of the concerns raised by members of the SOC about their mandate, size, timelines, etc. The SSRSB had the option of accepting, rejecting or modifying the recommendation made by the SOC.

They took the SOC recommendations into consideration when making their decision but the decision was made by the SSRSB not the SOC. [46] There were concerns raised at the meetings of the SSRSB about the process followed by the SOC, the timeline to reach a decision, whether the renovations had made the decision a forgone conclusion, etc. In the end the members of the SSRSB voted and the motions under review were passed. [47] The members of the SSRSB not attending the public meetings of the SOC does not make the ultimate decision of the SSRSB unreasonable.

Some SSRSB members did attend at least one of the public meetings of the SOC. Others did not attend. There was a concern raised that the SSRSB members should not be seen as interfering in the process of the SOC. There is nothing in the School Review Policy about the attendance of school board members at the public meetings. [48] The decision made by the SSRSB was made at a public meeting after a thorough consideration of many factors, including the recommendations of the SOC. The process was transparent in that each step along the way and minutes of meetings were posted on the SSRSB website.

The public meetings were advertised. The SSRSB met with the mayor and considered correspondence from the Town. The decision was made by a majority vote. There was justification, transparency and intelligibility in the decision-making process and the decision made falls within the range of possible acceptable outcomes. CONCLUSION: [49] A lack of trust arose among members of the public, members of the SOC and members of the SSRSB. That lack of trust will take time to heal. A decision to discontinue having a high school at BJSHS is a decision that brings out high emotions in those affected by the decision.

It is a decision that affects people on a very personal level.

[50] The court is required to show restraint in interfering with elected decision making bodies. The Minister of Education has placed the power to make the decision on whether or not to close schools with the School Boards. The court cannot substitute its decision for that of the School Board ( Potter paragraph 136 ). [51] During the process leading up to the decision by the SSRSB, citizens of the Town and representatives of the Town had opportunities to voice their concerns and present their case to the SSRSB.

These were not perfunctory and formalistic opportunities but real opportunities for those affected to try to influence the decision ( Potter paragraph 53 ). The SSRSB heard the concerns and made their decision. [52] The SSRSB did not breach the duty of fairness owed to the Town or the citizens of the town.

The SSRSB made a decision that was within their mandate and power to make, they made it in a fair and transparent process and it was within the range of possible acceptable outcomes. [53] If counsel are seeking to be heard on costs, the party seeking costs will contact the prothonotary to arrange a one hour hearing on the costs and file a brief on costs two weeks prior to the hearing. The respondent on the costs issue will file a brief on costs one week prior to the hearing. Mona M. Lynch, J