Docket: CACV2310 Cheryl McEwan v. Allen McEwan, 2013 SKCA 87

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 87 Date: 2013-08-21 Between: Docket: CACV2310 Cheryl McEwan and Allen McEwan Appellants - and - Ecole St. Margaret School, operated by Holy Trinity Roman Catholic School Division and Elaine Oak Respondent - and - Karen Prisciak, Q.C., Saskatchewan Human Rights Tribunal and the Saskatchewan Human Rights Commission Non-Parties Coram: Richards C.J.S., Jackson & Ottebreit JJ.A.

Counsel: Anthony Tibbs for the Appellants James McLellan for the Respondent Appeal: From: 2012 SKQB 303 Heard: January 24, 2013 Disposition: Appeal Allowed Written Reasons: August 21, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit

Jackson J.A. I. Introduction [ 1 ] This appeal concerns a human rights complaint brought on behalf of 10-year-old Hunter McEwan against his school, Ecole St. Margaret School, and the school principal. Hunter McEwan suffers from a disability that causes muscle weakness and imbalance. His complaint arises out of a newly implemented locked-door policy at the school, which made it more difficult for him to enter and leave the school building.

His parents allege that the failure to provide them with a key or other means of entry interfered with their son’s right to education, by not accommodating his disability in a suitable manner. The school principal asserted that the locked-door policy was essential for the safety of all children, and that other accommodations had been made to address Hunter’s difficulties, up to the point of undue hardship. [ 2 ] According to the procedure established by The Saskatchewan Human Rights Code, S.S. 1979, c.

S-24.1 as amended by The Saskatchewan Human Rights Code Amendment Act, 2000 , S.S. 2000, c. 26, the Chief Commissioner reviewed the McEwans’ complaint and dismissed it, finding no merit to it. The McEwans appealed to the Saskatchewan Human Rights Tribunal established under the Code . The Tribunal set aside the Commissioner’s decision and ordered that the matter proceed to an inquiry.

The school, the school division and the school’s principal, appealed to the Court of Queen’s Bench. [ 3 ] The Court of Queen’s Bench quashed the decision of the Human Rights Tribunal and restored the decision of the Chief Commissioner. The McEwans have appealed to this Court. [ 4 ] I have concluded that the decision of the Queen’s Bench should be set aside and the decision of the Tribunal should be restored. II. Background [ 5 ] On February 28, 2007, the McEwans filed a complaint under s. 27 of the Code , alleging that there are reasonable grounds to believe that Ecole St.

Margaret School of Moose Jaw, Saskatchewan, operated by Holy Trinity Roman Catholic School Division No. 22, and the principal of the school violated s. 13(1) of the Code on the basis of their son’s disability.

Subsection 13(1) of the Code provides: Right to education 13(1) Every person and every class of persons shall enjoy the right to education in any school, college, university or other institution or place of learning, vocational training or apprenticeship without discrimination on the basis of a prohibited ground other than age. [emphasis added] “Prohibited ground” includes “disability” (see s. 2(1)(m.01) of the Code ) and “disability” means “any degree of physical disability, infirmity, malformation…and, without limiting the generality of the foregoing, includes:….(

D) lack of physical co-ordination” (see s. 2(1)(d.1)(i)). [ 6 ] The McEwans describe the nature of the discrimination against their son in these terms: Our son Hunter McEwan has a disability that causes muscle weakness and imbalance which requires our parental assistance in taking him to school and assisting with getting him to class . He is attending Ecole St. Margaret School which is operated by the Holy Trinity Roman Catholic School Division No. 22.

In the past the school accommodated our son’s disability, by giving us a key to the east door that is closer to a designated handicapped parking spot and our son’s classroom. In or about October 2005, the new Principal, Elaine Oak implemented the locked door policy and took away our key . Since then, the options of accommodation to either go through the front entrance or to phone ahead of time to meet the Aide at the east door have been unsuccessful and caused hardship to our family .

We have reason to believe and do believe that the School Division has interfered with our son’s right to education, by not accommodating his disability in a suitable manner, contrary to

Section 13 of The Saskatchewan Human Rights Code . [Appeal Book, p. 73a, emphasis added] [ 7 ] Additional factual context is required. The main or front entrance of the Ecole St. Margaret School faces west. Kindergarten students, pre-schoolers and Grade 1 students use the north door, whereas Grades 2 to 4 students use the east door. In kindergarten and Grade l, Hunter used the north door. The principal at the time designated the disabled parking spot located close to the unlocked north door for the McEwans’ use when they delivered and picked up their son.

The McEwans had unrestricted access to this unlocked door. [ 8 ] In Grade 2, Hunter entered the school through the east door, which was approximately five meters from the Grade 2 classroom, and the principal designated the disabled parking spot closest to that door for his exclusive use. His parents set up a footwear change station, which included a chair, a mat and a change of footwear, to assist him to change into and out of his outdoor clothing and footwear.

The McEwans had unrestricted access to this unlocked door. [ 9 ] In 2005, the new principal instituted a locked door policy in the school, restricting access to it. After this policy came into effect the east door was locked for the entire school day except during particular defined times shortly before school opens and shortly after school closes. Outside of these designated access hours, children could use the east door only when teachers or supervisors were available to let them in.

The policy was instituted to protect the security of the school and the safety of its students. [ 10 ] Significantly, from the McEwans’ perspective, the policy did not apply to the west or front entrance which was left unlocked at all

times, and was not subject to screening. Any person could enter unseen through that door. [ 11 ] The McEwans complained about the locked door policy, saying that it caused their son hardship. Because of his disability, he was late from time to time, and he would find the east door, which was closest to his classroom, locked. When the door was locked, his options were limited. His parents would drive him to the front door, but then he would have to walk 150 meters to his classroom accompanied by someone to ensure he did not fall.

His outdoor clothing and footwear would have to be carried by the person accompanying him as well. [ 12 ] Following their complaint, the principal gave them a key to the east door. This key opened all the doors in the school. A misunderstanding appears to have occurred between the principal and the McEwans about the use that could be made of this key. The principal believed they wanted the key to alleviate their concern about access to their son in the event of an emergency. The McEwans believed the key was given to them to allow them easier access to and from the school. When Mrs.

McEwan was seen entering the school to pick up her son, which was contrary to the principal’s understanding of the use that could be made of the key, the principal required her to return the key. [ 13 ] The McEwans complained again to the principal and from there the Division became involved. The Division affirmed the locked- door policy and that no parent should be given a key to the school. Efforts were made to accommodate the McEwans, as follows: 1.

Hunter’s educational assistant would be at or outside the east door from 8:25 to 8:40 a.m. to meet Hunter, to assist him to enter the school, and would also deliver Hunter to his parents via the same door at the end of the school day; 2. the McEwans were permitted to phone the school, if their son was going to be late, and his assigned educational assistant would meet them at the east door and open it; 3. as a back-up, the school established a change station at the unlocked west door, and the school would buy him a change of footwear to be kept at that location, and the educational assistant would accompany him to his class, carrying his outer clothing and backpack. [ 14 ] These accommodations were not satisfactory to the McEwans who cited these continuing concerns: (

i) from time to time, when they were late, the school’s phone would ring busy or would go unanswered; (ii) using the front door, and being walked to his classroom, was humiliating to Hunter, who was trying to assert his independence; (iii) on one occasion, Hunter was sick to his stomach, which was not an infrequent occurrence, and the locked door caused a problem as he could not get himself quickly to the washroom; (iv) on another occasion, when they exited the school in inclement weather, the door locked behind them before they realized they had forgotten his backpack, creating a crisis for Hunter.

The McEwans wrote about what they described as the daily “drama” of getting Hunter into and out of the school. They said that able-bodied children were not affected in the same way by the locked-door policy. An able-bodied child who was late could simply run to the west door and quickly gain access to their class room without creating any fuss. [ 15 ] The respondents on this appeal, being the school, the principal and the Division, saw things differently. They implemented and maintained the locked-door policy to prevent unauthorized persons from entering the building.

According to their submissions, the locked-door policy is necessary for the safety of all students, including Hunter. From their perspective, they had sufficiently accommodated Hunter, and the McEwans were simply being overly demanding. [ 16 ] In short, the McEwans believed that their son’s disability could be accommodated by re-keying the lock to the east door with a unique key or keypad. The respondents believed that their obligations to the safety of all children prevented them from granting the McEwans what they desired and that the accommodations they had been given were sufficient.

It is from these skeletal, and largely uncontroverted, facts that the McEwans’ complaint emanates. [ 17 ] The McEwans filed their complaint with the Saskatchewan Human Rights Commission pursuant to s. 27(1) of the Code : Complaints 27

(1) Any person who has reasonable grounds for believing that any person has contravened a provision of this Act, or any other Act administered by the commission, in respect of a person or class of persons, may file with the commission a complaint in the form prescribed by the commission. The McEwans sought a variety of remedies, including a claim for damages. [ 18 ] The Code that was in place when the McEwans filed their complaint provides for a multi-layered level of review, beginning with the Chief Commissioner. The legislative mandate of the Chief Commissioner is established by these provisions of the Code : 27.1

(2) At any time after a complaint is filed or initiated pursuant to

section 27, the Chief Commissioner, or person designated by the Chief Commissioner, may dismiss the complaint where he or she is of the opinion that : (

a) the best interests of the person or class of persons on whose behalf the complaint was made will not be served by continuing with the complaint; (

b) the complaint is without merit ; (

c) the complaint raises no significant issue of discrimination; (

d) the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding; (

e) the complaint is made in bad faith or for improper motives or is frivolous or vexatious; (

f) there is no reasonable likelihood that an investigation will reveal evidence of a contravention of this Act; or

(

g) the complaint arises out of circumstances for which an exemption order has been made pursuant to

section 48. [emphasis added] Inquiry into a complaint 28(1) Where a complaint is filed with or initiated by the commission, the Chief Commissioner, or any person designated by the ChiefCommissioner, shall, subject to subsection 27(5) and

section 27.1, do one or more of the following: … (

c) investigate the complaint; ….

(2) The Chief Commissioner may, at any time after a complaint is filed or initiated pursuant to

section 27, request the chairperson ofthe human rights tribunal panel to appoint a human rights tribunal to conduct an inquiry respecting the complaint. [emphasis added] [19] In this case, the Commissioner caused the complaint to be investigated. A lengthy investigation report forms part of the materialsas an appendix to the Commissioner’s decision. Following his review of this report, the Commissioner did not “request the chairpersonof the human rights tribunal to appoint a human rights tribunal to conduct an inquiry respecting the complaint” under s. 28(2) of theCode. Based on his review, he was satisfied that the claim was without merit and he dismissed it pursuant to s. 27.1(2)(

b) of the Code. [20] Briefly speaking, the Chief Commissioner applied the framework from British Columbia (Public Service Employee RelationsCommission) v. British Columbia Government and Service Employees’ Union, (SCC), [1999] 3 S.C.R. 3, commonlyreferred to as the Méiorin decision, and made applicable to all claims of human rights violations by British Columbia (Superintendent ofMotor Vehicles) v. British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868. Following thisframework, the Chief Commissioner formulated and answered these questions: A.

Did Hunter have a disability within the meaning of the Code at all times relevant to this complaint and, if so, were the respondentsaware of his disability? B. If the answer to Issue A is "yes," have the complainants established a prima facie case that the respondents' implementation of alocked-door policy at Ecole St. Margaret School discriminated against Hunter, contrary to

section 13 of The Saskatchewan Human RightsCode, by failing to accommodate his disability in an appropriate manner? C. If the answer to Issue B is "yes," have the respondents met the requirements of section 39(2) of the Code by establishing that theydid accommodate Hunter’s disability in an appropriate manner, up to the point of undue hardship? Counsel agree that this line of analysis is made applicable in the education context by British Columbia (Superintendent of MotorVehicles). [21] The Chief Commissioner answered yes to the first two questions.

He concluded that Hunter has a disability within the meaning ofthe Code and that the school was aware of his disability. He also concluded that the complainants established a prima facie case that theschool’s locked door policy discriminated against Hunter, contrary to s. 13 of the Code, by failing to accommodate his disability in anappropriate manner. [22] It was upon the third question that Hunter’s complaint foundered.

The Chief Commissioner held that the school had met therequirements of s. 39(2) of the Code by establishing that it did accommodate Hunter McEwan’s disability in an appropriate manner up tothe point of undue hardship. In brief compass, the Commissioner found that the school could not provide the McEwans with theirpreferred form of accommodation without compromising the safety objectives of the locked door policy and it was their duty to accept aless than perfect solution (para. 48).

Thus, the Commissioner concluded that, with regard to the locked-door policy, the school did“accommodate HM’s disability up to the point of undue hardship” (para. 48). He found “there is no reasonable likelihood that a tribunal,looking at the evidence as a whole, would find this complaint to be substantiated on a balance of probabilities” (para. 49).

TheCommissioner concluded that “this complaint does not have sufficient merit to request the appointment of a Human Rights Tribunal forthe purposes of conducting an inquiry pursuant to s. 28 of The Saskatchewan Human Rights Code” (para. 49). [23] With that, the McEwans exercised their right to apply for a review of the Chief Commissioner’s decision pursuant to s. 29.4 of theCode: 29.4(1) Not later than 30 days after receiving notice of the Chief Commissioner’s decision to dismiss a complaint pursuant to subsection

27.1(2), a complainant may, by notice in writing to the chairperson of the human rights tribunal panel, request an inquiry respecting the complaint .

(2) The complainant shall serve the Chief Commissioner and the person against whom the complaint was made with the notice requesting an inquiry.

(3) After the Chief Commissioner is served with the notice, he or she shall provide the complainant and the chairperson with a copy of the record respecting the complaint.

(4) The chairperson or a member of the human rights tribunal panel shall review the decision of the Chief Commissioner and may order an inquiry . [1]

(5) Where an inquiry is ordered pursuant to subsection (4), the person who made the determination pursuant to subsection (4) shall not participate in the inquiry.

(6) The complainant shall have carriage of the complaint in an inquiry ordered pursuant to subsection (4).

(7) Counsel for the commission may participate in the inquiry.

(8) Sections 30 to 33, other than clause 30(1)(a), apply to an inquiry ordered pursuant to subsection (4), with any necessary modification. [emphasis added] [ 24 ]

Section 13.1 of the Regulations provides further guidance about the nature of the review before a Human Rights Tribunal:

Interpretation re

section 29.4 of the Act 13.1(1) For the purposes of subsection 29.4(1) of the Code, “notice in writing” means a written notice in Form A of the Appendix that describes the complainant’s reasons for requesting an inquiry.

(2) For the purposes of subsection 29.4(3) of the Code, subsection (3) and subsection 14(2), “record” means : (

a) the complaint ; (

b) all witness statements and documents that could constitute evidence at an inquiry ; and (

c) the notice of dismissal provided to the complainant pursuant to

section 7 .

(3) For the purposes of subsection 29.4(4) of the Code, “review” means a review of the record . (See: R.R.S. c. S-24.1 Reg. 1, s. 13.1 ). [emphasis added] [ 25 ] The matter came before Karen Prisciak, Q.C., in her capacity as a “human rights tribunal.” Ms. Prisciak concluded that an inquiry should take place. [ 26 ] Ms. Prisciak began her decision by determining that the appropriate standard by which to review the Chief Commissioner’s decision is reasonableness in accordance with the analysis described in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190.

She found the decision of the Chief Commissioner unreasonable because “he does not enumerate the evidence he considered in finding the Respondents discharged their onus of proving undue hardship on a balance of probabilities” (para. 47). In the result, she directed that the matter proceed to an inquiry pursuant to s. 29.4(4) of the Code (para. 48). [ 27 ] The School, the Division and the principal then applied to the Court of Queen’s Bench by way of Notice of Motion requesting the following:

1. An order pursuant to Part Fifty-Two of The Queen's Bench Rules of Court of Saskatchewan, quashing the order of the Respondent, Karen Prisciak, Q.C., Saskatchewan Human Rights Tribunal dated March 27, 2012 pursuant to

Section 29.4(4) of The Saskatchewan Human Rights Code directing an inquiry into the complaint of the Respondents, Cheryl McEwan and Allen McEwan. 2. An appeal of the same order pursuant to subsection 32(1) of The Saskatchewan Human Rights Code . [emphasis added] [ 28 ]

Section 32 of the Code provides as follows: Appeals 32

(1) Any party to a proceeding before a human rights tribunal may appeal on a question of law from the decision or order of the human rights tribunal to a judge of the Court of Queen’s Bench by serving a notice of motion, in accordance with The Queen’s Bench Rules , within 30 days after the decision or order of the tribunal, on: (

a) the human rights tribunal; (

b) the commission; and (

c) the other parties in the proceeding before the human rights tribunal… …

(2) Where a notice of motion is served on the human rights tribunal, it shall immediately file, in the office of the local registrar of the Court of Queen’s Bench, the record of the proceedings before it in which the decision or order appealed from was made.

(2.1) The record mentioned in subsection (2) and a transcript of the oral evidence taken before the tribunal, if it is not part of the record of the tribunal, constitutes the record in the appeal. …

(4) Where an appeal is taken under this section, the judge shall determine any question of law relating to the appeal and may affirm or reverse the decision or order of the human rights tribunal or remit the matter back to the human rights tribunal for amendment of its decision or order . [emphasis added] [ 29 ] The matter came before the Court of Queen’s Bench in Chambers ( 2012 SKQB 303 , 402 Sask. R. 64). The Chambers judge did not indicate the standard of review that he applied to the review of Ms. Prisciak’s review of the Chief Commissioner’s decision or state the question of law that he considered.

He treated the matter as an application for judicial review of Ms. Prisciak’s decision only. In that regard, he found that Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 was dispositive of the appeal. [ 30 ] In Newfoundland , Abella J., for the Court, outlined the standard against which tribunal reasons are to be assessed.

Briefly speaking, she held that “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes the Dunsmuir criteria are met” (para. 16 ). Applying that standard, the Chambers judge concluded as follows: [20] I disagree with the conclusion of Ms. Prisciak. I am satisfied that Judge Arnot clearly outlined sufficient reasons. He referred to the fact that there were incidents of vagrants entering the school and the area in which the school was located could be problematic.

It was important for the staff to control who entered the school. If a key or a code number was in the possession of a non-staff member, no matter how responsible that person might be, it would necessarily diminish the safety of the school. Safety can constitute undue hardship and clearly it was in this case . [21] Upon my reading of the whole judgment by Judge Arnot I am satisfied that he met the standard required of administrative tribunals as set forth by the Supreme Court of Canada . I therefore quash the decision of Ms.

Prisciak ordering an inquiry. [ 31 ] With that decision, the McEwans appealed to this Court pursuant to s. 32(5) of the Code which reads as follows: 32

(5) The decision of the Court of Queen’s Bench may be appealed to the Court of Appeal. III. Analysis [ 32 ] At the outset, some comment should be made about counsel’s decision to launch an appeal and to apply for judicial review.

Subsection 32(1) of the Code provides for an “appeal” on a question of law from the decision or order of the human rights tribunal to ajudge of the Court of Queen’s Bench. It does not contemplate an application for judicial review. While nothing turns on the matter inthe within appeal because counsel coupled the judicial review application with an appeal, it would appear that the preferable practicewould be to file an appeal only. [33] Subsection 32(5) provides for an appeal to this Court from the Court of Queen’s Bench.

Consistent with past decisions of thisCourt, the decision of the Queen’s Bench is reviewed on the standard of correctness. The overarching issue that this Court must decide iswhether the Chambers judge erred when he set aside the decision of the Human Rights Tribunal on the basis that the Commissioner’sdecision meets the test for reasonableness and in doing so restoring the Chief Commissioner’s decision. [34] The Chambers judge correctly concluded that the Commissioner’s reasons more than adequately meet the standard set byNewfoundland and Labrador Nurses’ Union, supra.

However, in my respectful view, this case is not about whether the Commissioner’sreasons were sufficient to permit review. At no point in the Tribunal’s reasons did she question the transparency or the intelligibility ofthe Commissioner’s reasons. At this point, it is useful to quote extensively from the Tribunal’s reasons: 39. The Chief Commissioner acknowledged the Complainants’ perspective that the accommodation was inconvenient. He alsorecognized the importance of school policies to ensure the safety of the school and that the duty to accommodate is based on need, notconvenience.

He stated the Respondents had a duty to accommodate the Complainants but not to provide them with the most convenientform of accommodation or the accommodation they requested. He noted the Respondents attempted to minimize the Complainants’inconvenience with numerous strategies, but did not provide the Complainants with a key or keypad access in order to maximize thesecurity of the students and the school. The Chief Commissioner stated that the form of accommodation requested by the Complainantwas not possible in the circumstances.

He did not enumerate why and did not refer to evidence that would support the suggestion that theaccommodation requested by the Complainants would create undue hardship to the Respondents. 40. While the Chief Commissioner acknowledged the Complainants’ allegation that the accommodation provided by the Respondentsadversely affected their son’s dignity, independence and freedom, he found the Complainants failed to establish these allegations based,in part, on the Respondents’ observations of their son’s behaviour.

The Chief Commissioner concluded that even if the accommodationwas found at a hearing to have a negative effect, a tribunal would not find the type of accommodation sought by the Complainants to befeasible. Again, no reference was made to the evidence supporting this conclusion. 41. The Complainants alleged the accommodation increased the safety risk to their son. The Chief Commissioner rejected thisconcern on the basis that many of the Complaints’ scenarios were hypothetical and response times in an emergency situation would notbe decreased by the accommodation they requested.

No analysis of undue hardship was provided in this context. . . . 45. I have reviewed the extensive material on this file. The majority of the documents speak to numerous meetings between theComplainants and the Respondents and their differences on the accommodation issue. None of the information discloses the financialcost of accommodating the Complainants in the manner they requested. 46. The Respondents’ position was that overall safety of the school prevented the accommodation requested by the Complainants. The Chief Commissioner correctly noted that in Central Alberta Dairy Pool v.

Alberta (Human Rights Commission), (SCC), [1990] S.C.J. No. 80, the Supreme Court listed “safety” as a factor to be considered in an assessment of undue hardship. TheCourt stated that “where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. There is no question that the safety of the school and students was a factor in this case.

The Chief Commissioner said “safety is animportant indication of undue hardship and providing the Complainants with the accommodation they requested would have underminedthe locked-door policy needed to protect the safety of the school’s staff members and students”, including the Complainants’ son. However, the Chief Commissioner does not identify how providing a key or key pad access to the east door would have been detrimentalto the safety of the school or the students. There is no evaluation of the magnitude of the safety risk and how it impacts his assessmentof the high standard of undue hardship. 47.

Although the Chief Commissioner identifies safety as a factor, he does not enumerate the evidence he considered in finding theRespondents discharged their onus of proving undue hardship on a balance of probabilities. While he applied the correct test, heprovided no basis upon which I can determine if his decision was reasonable. It may be.

However, since I am unable to assess theevidence he considered, I conclude that this case must proceed to an inquiry. [emphasis added] [35] From my review of these reasons, the Tribunal looked for evidence to support the Commissioner’s conclusion that the school’ssafety would be compromised by providing a key or key-pad to the McEwans and found “no evidence”. Given this state of affairs, theChambers judge, in my respectful view, erred by setting aside the Tribunal’s decision on the basis that he did.

Since he erred in thatregard, this Court must now take up the issues before him and consider first, whether the Tribunal applied the correct standard of reviewand second, whether the Tribunal erred by setting aside the Commissioner’s decision on the basis of no evidence. [36] With respect to the applicable standard of review, several issues could be considered.

I recognize that the appellate structurecreated by the Code raises the possibility that the applicable standard of review is correctness (see: Halifax (Regional Municipality) v.Anglican Diocesan Centre Corp., 2010 NSCA 38, 290 N.S.R. (2d) 361 and Creelman v. Truro (Town Council), 2010 NSCA 27, 290N.S.R. (2d) 158). I also note, however, the force of the arguments in favour of a standard of review on the basis of reasonableness (see: Majore v. Ipsco Saskatchewan Ltd., [2005 CarswellSask 79 (Sask. Human Rights Trib.)], January 18, 2005; Tsang v. Saskatchewan(Department of Learning), 2008 CarswellSask 321; Newton v.

Criminal Trial Lawyer’s Assn., 2010 ABCA 399, [2011] 4 W.W.R. 232 and Pelech v. Alberta (Law Enforcement Review Board), 2010 ABCA 400, 328 D.L.R. (4th) 156). [37] In this case, however, I find it is not necessary to decide whether the applicable standard of review is correctness or

reasonableness. This is so because this appeal can be resolved by answering this question: did the Tribunal err when it found that the Commissioner’s decision did not meet the test for reasonableness on the basis of “no evidence?” Whether the standard of review is correctness or reasonableness, an essential finding made without evidence must result in the tribunal’s decision being set aside. (See: Donald J.M. Brown, Civil Appeals , looseleaf, vol. 2, (Toronto: Canvasback Publishing, 2013) at topic 13:2210.) [ 38 ] In Donnelly v.

Bighorn (Municipal District No. 8) , 2010 ABCA 68 , 474 A.R. 318, the Court makes a clear pronouncement that a decision made without evidence will be found to be unreasonable. Donnelly concerns a land use prohibition issued by the municipality, which had been upheld by the Subdivision and Development Appeal Board.

On an application for judicial review, the Court of Appeal stated: [22] The second question relates to whether the SDAB could uphold the prohibition on using the Accessory Building for accommodation when there was no evidence to suggest the appellant was not complying with the relevant guidelines and Codes. This question raises issues of jurisdiction and general law that favour a correctness standard.

Even so, a decision that is made without any evidence to support it breaches any standard. [emphasis added] The Court further affirms this point by concluding: [46] …The SDAB erred in law, therefore, by upholding a Stop Order issued without the necessary evidence to support it. Along with being incorrect, the SDAB’s decision on this point was unreasonable . [emphasis added] [ 39 ] Similarly, in Fincaryk v. British Columbia (Workers’ Compensation Appeal Tribunal) , 2012 BCSC 341 , the Court found that the Workers’ Compensation Appeal Tribunal speculated as to the meanings of words in a contractual document.

The Court found that, “[s]peculation is by its very nature not based on evidence and so a decision based solely on speculation is patently unreasonable” (at para. 55). It is also worth noting that several courts have viewed a decision based on no evidence to be a breach of procedural fairness. (See Donald J.M.

Brown, Judicial Review of Administrative Action in Canada , vol. 3, looseleaf (Toronto: Canvasback Publishing, 2013) at topic 14:3410.) [ 40 ] In the case at hand, the Commissioner stated that the “respondents could not provide the complainants with their preferred form of accommodation without compromising the safety objectives of the locked-door policy” (para. 48). The only evidence to support this statement comes from the case report as follows: 30. Ms. Wagner-Owens stated the locked school door policy was instituted because occasionally strangers entered the building looking for bathrooms .

Those people were not authorized to be in the school and should not have access . She understood that Mrs. McEwan asked Principal Oak what she should do if there is an emergency and the school door is locked and they are stuck outside in the winter. To alleviate her fear she understood Principal Oak gave Mrs. McEwan a key to the school. Staff later told Ms. Oak that Mrs. McEwan entered the school through the east door without calling ahead. Ms. Wagner-Owens said Mrs. McEwan used the key to let herself in. Consequently, in March 2006 she instructed Principal Oak to retrieve the key from Mrs.

McEwan because non-school personnel were not authorized to have a key. As far as Ms. Wagner-Owens is aware, Mrs. McEwan never used the school key for emergencies because none came up. 31. She said the reason for the school locked door policy is because it is situated in an area of town where occasionally strangers entered the building looking for bathrooms. They are not authorized to enter the school and for the safety of the children locking the doors was a security measure.

To give the complainants or any other parent a key to the school constitutes an undue hardship for the respondent from a school security perspective . … 38. Celeste York , appointed Director of Education effective July 2, 2009, said she could not respond to the Disclosure Report because she was new to the position and the incident occurred prior to her tenure. … Nevertheless, provision of a key to Mrs. McEwan would not be recommended nor condoned by the respondent. The key Mrs. McEwan provided gave access to the entire school.

Under limited circumstance non-school personnel have access to a key to an elementary school: when a portion of the school can be “locked off” to prevent access to unauthorized spaces like classrooms and offices, where the gymnasium and change rooms have a separate community entrance (and often security code allowing access only to the designated community organization )… 39. Ms. York also stated the safety and security of all children is of paramount importance to school staff and Principals must act with due diligence .

Unlocked entrances have been accessed by vagrants, parents in custody battles and persons involved in criminal activity in a number of schools at various times . Ecole St. Margaret School had a number of incidents of vagrants entering the school. Discovery of an unknown and unkempt person in the boy’s washroom provided Principal Oak with sufficient reason to institute the school’s locked door protocol . The protocol allowed staff to control entry to the building and the circumstances under which such entry is permitted . [emphasis added] [ 41 ] The McEwans responded to this evidence with the following: 37.

The Complainants responded … with these three points:

• Complainants questioned the efficacy of the school’s locked door policy because the front (west) door was not only always unlocked, but unsupervised . Signs on the other doors of the school directed visitors to the front door where anybody could freely walk into the school unbeknownst to school officials as the office is out of sight of the front door. There was no security at this public entrance. There was a safety hazard of the east door locking behind Mrs. McEwan and her son on exit at the end of the day after the Educational Assistant departed.

If their son were to fall and/or injure himself, re-entry to the school was very problematic. • The complainants note the Superintendent of Student Services, Wagner-Owens, states the locked door policy was put in place to keep strangers out. They said messages on all the locked doors direct visitors to the unlocked, unsupervised front door of the school where there are washroom and classrooms immediately inside …. • The complainants said they understood the key to the school was offered to Mrs.

McEwan and accepted thankfully as a solution to the new locked door school policy, in response to their concerns for their son's access. They feel the unlocked and unsupervised front door presented a real security risk not, Mrs.

McEwan's access to the east door . [emphasis added] [ 42 ] The issue for the Commissioner was not whether the locked door policy met the safety concerns associated with vagrants and the criminal elements, but whether providing access to the McEwans by means of a special key, with access to the east door only, or by means of a keypad, with a limited code, compromised the locked door policy so as to create an undue hardship. With respect to the latter point, the Tribunal is correct. There is simply no evidence of this.

Further, the school did not argue that providing a key or key pad would be too expensive ( i.e. , create an undue hardship by imposing burdensome costs) and nor is there any evidence of the nature of such costs in any event. Therefore, the Tribunal did not err when she set aside the Commissioner’s decision on the basis of unreasonableness. IV. Conclusion [ 43 ] The appeal is allowed with costs in this Court and the Court of Queen’s Bench to the McEwans in the usual way. The Tribunal’s decision is restored.

DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of August, A.D. 2013. ___ “Jackson J.A.” ________________ Jackson J.A. ___ “Richards C.J.S.” ______________ Richards C.J.S. ___ “Ottenbreit J.A.” ______________ Ottenbreit J.A.