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Education Law Newsletter — March 2009 —

⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ IN THIS ISSUE ⎯ Human Rights

Human Rights Tribunal Tribunal Issues Issues Seminal Decision on Evidentiary Issues page 1 Seminal Decision on

Trustee Removed Evidentiary Issues for Conflict of Interest page 4 The Human Rights Tribunal (the “Tribunal”) issued an Interim Decision on No Psychological Damage five issues in Persaud v. Toronto District Found in Discipline Case page 6 School Board, [2008] O.H.R.T.D. No. 90 (“Persaud”). The Complainant, Andrew Courts Affirm Principles for Persaud, filed a complaint against the Disclosure of Student Records page 7 Toronto District School Board (the “Board”) alleging discrimination on the basis of race Court Refuses to Intervene arising from discipline related to alleged in School Closing page 8 plagiarism and other issues when he was a student at Road Academy (“VRA”). The parties to the complaint are Case Note page 11 the Complainant, represented by his own counsel; the Ontario Human Rights Professional Development Corner page 12 Commission (the “Commission”); and the Respondent Board. 1

Keel Cottrelle llp — Education Law Newsletter — March 2009

The five issues addressed by the Interim and analysis, and that he would be qualified Decision were: (1) objections to documents as an expert witness. However, the Tribunal by the parties; (2) the Commission’s found that Dr. Henry’s proposed evidence proposed expert evidence by Dr. Frances would not be relevant, because Dr. Henry’s Henry on race theory and analysis; (3) the evidence would be focussed largely on the Respondent Board’s proposed evidence by a experiences of Black students and anti- former Principal from VRA; (4) whether the Black racism, but the Complainant had Board’s proposed evidence by two police already testified that he did not self-identify officers would be barred by the provisions as a “Black” student, but rather as a of the Youth Criminal Justice Act (“YCJA”); “Guyanese Indian” of “brown” skin colour. and (5) the Board’s request for a sealing The Tribunal did not accept the order and a publication ban. Commission’s submissions that “the Documents experience of an individual that self- The Tribunal made a number of rulings identifies as brown is similar to that of a student who self-identifies as black” and that regarding documents to be relied on during “to make such a colour based distinction the proceeding. The Tribunal struck specific documents from the parties’ briefs based on can be characterised as Colourism, which is its earlier decision that events prior to the a key component in defining a racist dynamic” (para. 11). The Tribunal held that Complainant’s attendance at VRA were not the Commission had provided no support for relevant to the matters at issue in the these submissions, even including the proceeding. The Tribunal reserved its anticipated evidence of Dr. Henry that was decision on the issue of admissibility of the submitted to the Tribunal. In addition, the forensic report of a proposed expert witness, Tribunal noted that the Commission’s pending hearing evidence from a Chemistry submissions on this point were inconsistent teacher to be called by the Board, and also with the Commission’s own Policy and noted the Commission’s objection to the Guidelines on Racism and Racial proposed evidence. Discrimination. In response to the Commission’s objection With respect to the “necessary” prong of the to specific documents in the Board’s brief, expert evidence test, the Tribunal found that the Board agreed not to enter some of these when Dr. Henry’s evidence was stripped of documents at this stage of the proceeding so its focus on Black students, it would provide the Tribunal found it not necessary to rule information on the basic concepts and on admissibility. However, the Tribunal did dynamics of racism, which were not rule that the Board could not admit into necessary to assist the Tribunal as the trier evidence the Commission’s section 36 Case of fact. While the Tribunal declined to hear Analysis Report, its Amended Report, or the expert evidence from Dr. Henry, the Board’s responses to these Reports, although Tribunal allowed either the Commission or they could be considered if there was a Complainant to submit any relevant motion for costs later in the proceedings. materials on race analysis or racism in Expert Evidence education, other than case law, legal articles The Commission sought to introduce the or literature, for the Tribunal’s consideration expert evidence of Dr. Frances Henry. The prior to the close of their case. Tribunal found that Dr. Henry was a renowned scholar in the areas of race theory

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Keel Cottrelle llp — Education Law Newsletter — March 2009

Board Witness evidence of the brother’s involvement with the police was being given in violation of The Board proposed to call as a witness the the YCJA. Because the Complainant’s former Principal of VRA, who was at the brother was 18 years old (and therefore an school in the two years preceding the adult) when testifying, the Tribunal held that matters at issue in the proceeding. The pursuant to s. 110(3) of the YCJA, he could Board sought to call this witness to testify choose to publish any information that about certain issues related to the would identify him as having been dealt Complainant, including the admitted with under the YCJA. However, because the plagiarism of a Geography assignment, as Board intended to call the two police well as interactions with his mother, and the officers to testify in response to the former Principal’s opinions about the Complainant’s brother’s evidence and Complainant and his mother that were allegations of racial discrimination, the formed as a result. The former Principal Tribunal invited Complainant’s counsel to would also give evidence about the make submissions as to whether this distribution of master keys during the years proposed evidence would be in violation of when she was Principal. The Tribunal found the YCJA. Complainant’s counsel took the none of this proposed evidence to be position that the police officers’ proposed relevant to determine the matters at issue in evidence would violate the YCJA, and that the current proceeding. As a result, the an order from a Youth Court Judge was Tribunal declined to hear evidence from the required for the Board to put this evidence former Principal. before the Tribunal. The Board took the Police Evidence position that there would be no violation of The Police evidence relates to the issue in the YCJA. the Complaint of a master key, which was The Tribunal’s analysis of the issue was found in the possession of a student on the based on: section 110(1) prohibiting Yearbook Committee in the 2004-2005 publication of a young person if it would school year. The Tribunal was required to identify him/her being dealt with under the rule on the issue of whether evidence given YCJA; 110(3) allowing a person 18 or older by the police regarding their involvement to cause information identifying him or her with the Complainant’s brother at the school being dealt with under the YCJA to be involving the master key issue would be in published; and, s. 188(1) restricting access violation of the YCJA. to a record identifying a young person dealt A master key was found in the possession of with pursuant to the YCJA. a student on the Yearbook Committee in the The Tribunal expressed doubt that the 2004-05 school year. There was no dispute proposed evidence of the police officers fell that this student obtained the key from the under the scope of the YCJA, since the Complainant’s brother. There was also no Complainant’s brother had never been dispute that, after the Complainant’s brother charged under the Act. However, without was questioned by school administrators, he making a finding on this issue, the Tribunal was also questioned by two police officers at held that, as an adult, the Complainant’s the school. brother could cause the information about During the Commission’s examination-in- his dealings with the police to be published. chief of the Complainant’s brother, counsel By testifying about these dealings and for the Complainant raised an objection that putting them in issue in the case before the Tribunal, he had caused to be published any 3

Keel Cottrelle llp — Education Law Newsletter — March 2009

relevant evidence required for the Board to Tribunal also gave the Board an opportunity respond to the allegations. The Tribunal to identify any documents submitted into also rejected the argument of Complainant’s evidence that formed part of an OSR, not the counsel that s. 110(3) of the YCJA restricts OSR of the Complainant, to enable the publication of information to just a young Tribunal to re-consider the Board’s request person’s name or identity. The Tribunal in a specific circumstance. noted that no authority was cited for that General Comments proposition. Of particular significance in this case are the Publication Ban decisions relating to expert evidence and the The Board sought a publication ban and YCJA. While the circumstances of each case order sealing the record related to any are different, this decision does provide evidence regarding academic or discipline some insight into issues of admissibility and information related to students other than the confidentiality. Complainant. The Complainant was not It should also be noted that the Tribunal will included in the Board’s request because, as a control the procedure and evidentiary issues separate party to the proceeding, he could at human rights hearings. seek such an order on his own behalf, which he chose not to do. ⎯ The Tribunal considered the Board’s request in light of s. 266 of the Education Act, Trustee Removed for which attaches statutory privilege to the information contained in a student’s Ontario Conflict of Interest Student Record (“OSR”); the privacy of “personal information” under the Municipal In Baillargeon v. Carroll, [2009] O.J. No. 502 Freedom of Information and Protection of (S.C.J.), the Court examined conflicts of interest of school board trustees contrary to section Privacy Act (“MFIPPA”); and, the 5(1)(b) and (c) of the Municipal Conflict of Tribunal’s discretionary power under s. 9 of Interest Act, R.S.O. 1990, c. M.50 (the “MCIA”). the Statutory Powers Procedure Act (“SPPA”), which allows a Tribunal to hold a The Toronto Catholic District School Board (the hearing in the absence of the public. “Board”) had been running a deficit contrary to the Education Act, R.S.O. 1990, c. E.2, and was The Tribunal dismissed the Board’s request. required to eliminate the deficit by the end of the The Tribunal noted that much of the 2008-2009 fiscal year. The staff proposed evidence that had already been submitted elementary teacher layoffs. At the time, Trustee regarding the academic achievements of Carroll’s daughter was an elementary school other students had been anonymized, as teacher employed by the Board. Given her appropriate. The Tribunal found no seniority, the proposed layoff could affect the Trustee’s daughter. In addition, the Trustee’s compelling reason to override the son had recently commenced employment with fundamental principle of holding an open the Board as an occasional teacher. hearing or to justify the issuance of a sealing order or a publication ban. The Tribunal Two legal opinions with respect to the potential noted that other measures were available to conflict of interest were sought and provided. The first opinion recommended that any trustee the Tribunal to protect students’ privacy who had family members employed by the interests, such as avoiding the use of Board as teachers and/or support staff should students’ names where practicable. refrain from participating in budget discussions However, in an abundance of caution, the that could lead to a reduction in the number of 4

Keel Cottrelle llp — Education Law Newsletter — March 2009 teaching and/or support staff positions, and s/he defence of a trustee charged with conflict of should declare a potential conflict pursuant to interest under the MCIA. the MCIA. Further clarification was then sought The Court held that the defences of inadvertence and the second opinion provided that, if the and error in judgment did not apply. budget were separated into components, the Inadvertence requires that the breach be linked Trustee could vote on the items that were not a to an oversight of fact or law. Recklessness or potential conflict of interest. turning a blind eye to the conflict is not an This advice was not taken by the Trustee. The oversight. The Trustee’s awareness of his Court found that the Trustee violated section 5 conflict of interest resulting from the legal of the MCIA when he participated in the advice communicated precluded the defence of discussion about and voted on a motion inadvertence. proposing no teacher layoffs, made following a In finding that the defence of error in judgment presentation by the union president. did not apply, the Court considered the In the same meeting, the Trustee proposed and experience of the Trustee. The Trustee had been participated in a discussion surrounding a budget a member of the Board for 5 years and had a item that would result in a portion of the deficit long record in public service. For the defence to being carried forward and no teacher layoffs apply, the Trustee must have acted in good faith resulting because of program cuts. The Court and with a complete lack of deceit or collusion. stated that it was not relevant that the Trustee That the Trustee was aware of the conflict of thought that the motion would not have affected interest and chose to participate in several his daughter who he thought would have already discussions in which a conflict was present been laid off due to declining enrolment. As militated against a finding of good faith. The well, after an amendment was proposed Court found that the Trustee chose to disregard specifying that there be no teacher layoffs, the the advice provided to him and, as such, the Trustee identified the amendment as a “friendly defence of error in judgment was not available. amendment”. The Court found that this The Court found that the conflicts of interest identification would be interpreted by fellow were serious and indefensible. Pursuant to trustees as the Trustee adopting and implicitly section 10(1)(a) of the MCIA, the Trustee’s seat supporting the amendment. was declared vacant. The Trustee sent an email to the Director of It would appear that efforts were made to Education of the Board, copied to all the educate the members of the Board regarding trustees, asking whether teachers who had their responsibility to declare a conflict of received layoff notices could be assigned to interest. This case serves as a further example long-term occasional positions. The email also of the care that must be taken by trustees when urged that retired teachers not be given these considering such issues. positions. The Court found that the Trustee took this position despite knowing that such a policy This case received considerable attention in the had the potential to benefit both his daughter and media. One of the concerns expressed by his son, and that the email could influence others parents and ratepayers was that the MCIA on a matter in which the Trustee had a conflict requires enforcement by an individual, such as a of interest. parent or ratepayer, which raises considerable concern with respect to the cost of such At another meeting, the Trustee introduced a applications to the Court. This issue has always motion to reopen the budget discussions, the existed, but the costs associated with an Trustee also introduced a motion that the Board application to the Court have increased stop hiring retired teachers for long-term significantly over time. The Government has occasional positions and only hire new teachers given no indication of changing the MCIA to for these positions. At the same meeting, the provide for a less costly alternative process. Trustee also introduced a motion that the Board adopt a policy requiring the Board to pay for the ⎯ 5

Keel Cottrelle llp — Education Law Newsletter — March 2009

With respect to Ethan, the court noted that, No Psychological while there was reference made to the fact Damage Found in that he was upset that he could no longer attend the school, the decision to remove Discipline Case him was unilaterally made by his parents. The plaintiffs claimed that the school had In Moore v. Hatch House Montessori been negligent in the discharge of its duties. School, [2008] O.J. No. 3654 (S.C.J.), the The Court recognized that the school and Court examined the standard of care teacher owed a duty of care to the students required of a teacher when dealing with a under their care. The teacher had not, student who is creating a potentially however, breached the standard of care, as dangerous situation. she did not create a risk of harm. The Court The plaintiffs’ 3½ year old son, William, found the actions of the teacher to have been was tripping other children and putting fair, reasoned and appropriate. In response wooden blocks in his socks. His teacher to William’s conduct that day, the teacher attempted to take him to see the principal. had conducted herself according to the rights The principal was busy and William was left of the other students in his classroom as well in the adjacent toddler room with as the care and personal safety of William. instructions that he be taken to see the With regard to damages suffered by the principal as soon as the opportunity arose. plaintiff, the Court reiterated that for a William was returned to his classroom psychological disturbance of the plaintiff to within 5 minutes. The plaintiffs alleged that be compensable by the defendant the William was told by the teacher that if he disturbance must rise above the ordinary was going to behave like a baby he would be annoyances, anxieties and fears routinely treated like one and that sometimes a little experienced by people in society. Personal bit of damage does a lot of good. The injury deserving of compensation is serious teacher denied these allegations. The trauma or injury. Minor and transient upsets plaintiffs withdrew William from the school are not personal injury and, therefore, do not and, when the principal resisted getting attract damages. The Court found no involved, also withdrew their other son, evidence of psychological damages Ethan. amounting to personal injury to the children The Court found that there was no evidence or the parents. that William had suffered any emotional In addition, the damage must be reasonably trauma or upset about being placed in the foreseeable in order for the defendant to be toddler room as there was no evidence that responsible for the plaintiff’s injury. The he had felt humiliated or belittled, that he plaintiffs had failed to show that it was considered his placement in the toddler reasonably foreseeable that a child of room a punishment or embarrassing, or William’s age or Ethan’s age, of ordinary suffered a resultant lowering of self-esteem. fortitude, would have suffered personal Specifically, William had not made mention injury. The plaintiffs had only led evidence of the events, of feelings of humiliation, of their reaction as parents. embarrassment or lower self-esteem, or of a desire to leave the school or of any concern This case highlights the response of Courts of any sort. to minor and/or trivial complaints. Unfortunately, in some cases, such

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Keel Cottrelle llp — Education Law Newsletter — March 2009 precedents do not assist in preventing records were relevant and material to the action, needless litigation. and therefore, no privilege applied. (The Court does not consider the merits of the claim, but ⎯ only whether the records may be relevant). School records were similarly sought in the Courts Affirm criminal proceedings of R. v. Browne. The accused applicant, charged with one count of Principles for sexual assault and one count of touching a child for a sexual purpose, sought production of Disclosure of Student records in the possession of the Children’s Aid Society of Toronto and the Toronto District Records School Board pursuant to section 278.1 (definition of a “record”) of the Criminal Code. Requests for the production of school records in The accused requested the school records in civil, administrative and criminal proceedings order to obtain evidence about the student’s have recently been considered by the courts in behaviour. The accused argued that the records three cases: Lee v. Toronto District School were relevant because the student suffered from Board, [2008] O.J. No. 1759; R. v. Browne, Attention Deficit/Hyperactivity Disorder and [2008] O.J. No. 4932; and K.F. v. Peel Oppositional Defiance Disorder and had (Regional Municipality) Police Services Board, fabricated the allegations against the accused. [2008] O.J. No. 3178. The accused wanted the school’s records to assist in establishing that the student was a In Lee v. Toronto District School Board the “story teller”. plaintiff student brought a motion for production of school and police records relating to the The Court found that there was no evidence that defendant, a student. The plaintiff alleged that the records sought had any direct relevance to the school and police records were relevant to the question of whether the accused committed the action for assault that occurred on a the acts alleged against him. As a result, the schoolyard, as the records would prove that the Court dismissed the application. Board, principal, teachers and the defendant’s In K.F. v. Peel (Regional Municipality) Police guardian knew of the student’s history of violent Services Board, K.F. and the Ontario Human behaviour and failed to properly supervise the Rights Commission sought an order for student. The defendant’s counsel opposed disclosure pursuant to Section 115 (police production of all of the school’s records on the records) of the Youth Criminal Justice Act ground that they were statutorily privileged (YCJA) of all police records regarding a forced records pursuant to section 266 (pupil records) entry and theft that occurred in a school of the Education Act, and all of the police cafeteria. The incident resulted in a school records on the ground that the police had no suspension of the student, an arrest by the police right to obtain a statement from the defendant, while at school, and the application of because they were not investigating an offence. extrajudicial measures by the police. As a result The Court found that the case law supported the of the incident, K.F. initiated a human rights production of educational records, where complaint alleging racial discrimination. relevant for the purpose of litigation. The applicants sought an order authorizing the With respect to the police records, the Court disclosure of all police records. Counsel for the applied the common law rule that evidence in Peel Police submitted that although they wished civil cases is admissible regardless of how it was to disclose the records, Section 119(4) (persons obtained, unless obtained in breach of the having access to records) of the YCJA prohibited Charter of Rights and Freedoms. Allowing the them from disclosing the police records they motion, and ordering production of the school retained. They argued that section 119(4) only and police records, the Court held that the permitted disclosure of a record kept in respect 7

Keel Cottrelle llp — Education Law Newsletter — March 2009 of extrajudicial measures to an enumerated list Facts and Arguments of persons, which did not include the subject of the records, K.F. As a result of Saskatchewan’s mandatory restructuring of the public education system, Finding this interpretation counterintuitive, the the Board was established on January 1, Court stated: “To turn the concern for privacy, 2006 as a result of the amalgamation of four which was used as a shield for the young person, existing school divisions and part of two into a sword to be used against him in a way that limits the effectiveness of various other school divisions (the concept and protections that are provided to other citizens of implications of amalgamation are certainly this province makes no sense to me.” (para. 15). well-known in Ontario). The Board The Court, pursuant to Section 124 (access to administers approximately 41 schools in its records by young person) of the YCJA, ordered boundaries, including the Milden School. In that access to the police records be granted to the Fall of 2006, the Board held a public K.F., his counsel, and to all other persons consultation process regarding issues related required to have access to ensure a fair to the viability of schools in the Board’s resolution of the human rights complaint. The jurisdiction. Following this process, in April Court also ordered any reference that might 2007, the Board adopted a policy entitled the identify K.F. or other students to be edited from “School Viability Review” and resolved to the police records prior to being released. carry out an annual review of all schools in These cases highlight the importance of accordance with the policy. In October relevance when determining whether or not 2007, the Board passed a motion to receive, documents might be admissible in a hearing. as information, the School Viability Review ⎯ for the Milden School. During the 2007-08 school year, the Milden Court Refuses to School had 39 students enrolled; enrolment was expected to drop to 36 students for the Intervene in School 2008-09 school year. Low enrolment triggered the Board’s review of the Milden Closing School. In July 2008, parents of children who On December 18, 2007, the Board passed a attended the Milden Central School (the motion to consider the Milden School for “Milden School”) during the 2007-08 school closure and to hold an electors’ meeting on year applied for an interlocutory injunction January 15, 2008 at 7 p.m. to inform the to prevent the Board of Education of the Sun electors of the Board’s intention to consider West School Division No. 207 of the viability of the Milden School. Saskatchewan (the “Board”) from acting on However, due to a terrible blizzard on a Board resolution, passed on May 6, 2008, January 15, 2008, the Board cancelled the to close the Milden School. In August 2008 meeting and rescheduled it for February 6, the Saskatchewan Court of Queen’s Bench 2008. There was no dispute about the denied the application for an interlocutory blizzard or any allegation that the Board had injunction, which meant that the Board cancelled the meeting inappropriately. could close the Milden School prior to the The Board advertised the rescheduled 2008-2009 school year (Hanna v. Sun West meeting by placing an ad in the local School Division No. 207, [2008] S.J. newspaper and displaying posters in the No. 480 (Sask. Q.B.)). school’s attendance area. There was some dispute about the exact location and number 8

Keel Cottrelle llp — Education Law Newsletter — March 2009 of posters. The plaintiffs alleged that the place on June 19, 2008. One plaintiff (a posters appeared approximately one week parent) indicated that she only found out prior to the meeting of February 6, 2008. about the meeting the night before and could not attend. Approximately 60 people attended the rescheduled meeting on February 6, 2008. On July 3, 2008, a letter was sent to the According to the Director of Education, the Board on behalf of the Community Council purpose of the meeting was to inform the and a number of concerned parents electors that the Board was considering requesting that the Board not proceed with closure of the Milden School, or the closure of the Milden School. The letter discontinuing one or more grades. On stated that “the notice requirements have not March 12, 2008, the Board held another been met in respect of the proposed closure meeting with electors to hear from interested of Milden Central School” (para. 15). On parties on these issues. Approximately 65 July 8, 2008, the Board’s solicitor requested people attended and the Board received nine particulars of this allegation. The solicitor submissions. The Board informed electors for the plaintiffs responded on July 9, 2008. that it would receive submissions until May The matter could not be resolved and the 2, 2008. plaintiffs filed a statement of claim on July 15, 2008. The notice of motion requesting On May 6, 2008, the Board met and passed an interlocutory mandatory injunction to a motion to close the Milden School prevent the Board from closing the Milden effective August 6, 2008. The Chair of the School was filed with a first return date of Milden School Community Council was July 31, 2008. The matter was argued present at this Board meeting. After the before the Court on July 31, 2008. motion, the Director arranged a time with the Chair for the Director to meet with the The plaintiffs alleged that the Board did not Community Council and parents regarding a act in good faith throughout the consultation transition plan for the 2008-09 school year. process and decision to close the Milden The Chair sent a registered letter, dated May School. In support of this allegation, the 6, 2008, to inform the Community Council plaintiffs allege that the Board changed the of the Board’s decision. time of the Board meeting on December 18, 2007 from 1 p.m. to 9 a.m. without The Director made numerous attempts to informing parents. In response, the Board schedule dates for consultations with the indicated that at the November 2007 Board Community Council for transition planning. meeting, the Board decided to hold all of its The Community Council and parents met on meetings at 9 a.m. in future, rather than at 1 June 9, 2008 to discuss transportation and p.m. However, the Court found that the possible attendance areas for students, but Board did not inform the Community did not invite the Board to participate in this Council of this change. meeting. On June 10, 2008, the Chair notified the Board of the schools that the The plaintiffs also alleged that teachers and Community Council was requesting for staff of the Milden School were chastised students of the Milden School to attend the for commenting on the school closure issue following year; as a result, the Board and were told not to say anything in prepared bus routes for students to attend opposition to the Board’s intention to close three alternate schools. the school. The Board denied that teachers were reprimanded for participating in the A consultation meeting between the Board consultation process. Rather, teachers were and the Community Council finally took 9

Keel Cottrelle llp — Education Law Newsletter — March 2009

informed of the Saskatchewan Teachers’ should not be temporarily prevented from Federation’s policy that governs their acting unless there is real merit to the claim members’ participation in such processes. being advanced.” (para. 22). Specifically, teachers were advised to The plaintiffs argued that the Board respect the role and responsibility of the breached three of the notice requirements of Board in carrying out statutory section 87 of The Education Act, 1995, S.S. requirements. 1995, C.E-0.2, am., (“The Education Act”), Finally, the plaintiffs filed a number of as well as the consultation requirements affidavits outlining individual students’ under the Board’s own policy when it needs and how students would be impacted passed the resolution on May 6, 2007 to by the closure of the Milden School. close the Milden School. Criteria for Mandatory Interlocutory In response, although the Board conceded Injunctions that it was not in full compliance with the “at least” three month notice provisions, the The Court outlined the test for granting a Board argued that a “slight mistake” should mandatory interlocutory injunction: not result in the granting of a mandatory “It is well established that the plaintiffs must interlocutory injunction. The Board also satisfy three requirements before a court relied on the Saskatchewan Court of will exercise its discretion to grant a Appeal’s decision in Board of Education of mandatory interlocutory injunction Dysart School Division et al. v. Board of restraining the Board from proceeding with Education of Cupar School Division No. 28 the closure of the Milden School, until the (1997), 148 Sask.R. 41; [1996] S.J. No. 524 within action is resolved. The plaintiffs must (Sask. C.A.) (“Dysart”), where the Board firstly establish that they have a strong breached a statutory notice requirement by prima facie case. Secondly, the plaintiffs sending notice of the closure of a school one must satisfy the court that, in the event the day late. The Court of Appeal held: injunction is not granted, the plaintiffs will “To assume, as this analysis does, that a suffer irreparable harm. Thirdly, the statutory breach automatically gives rise to plaintiffs will ask a court to consider the an injunction is to dilute the safeguards balance of convenience as between the surrounding the grant of such an parties and persuade the court that the extraordinary remedy by a superior court” balance favours the plaintiffs. . . . it is (para. 31). widely recognized that irreparable harm and balance of convenience factors are In the present case, the Court found that the closely related” (para. 22). Board did not post the required number of posters for notifying electors of the meeting. Because the injunction was being sought The Court also found that the Board was two against a public authority and the facts of the days short of providing the minimum three matter were not in dispute, the Court held months’ notice required by The Education that the appropriate standard to apply to the Act for advising electors that closure of a plaintiffs’ case was the standard of a “strong school was being considered. The Board prima facie case” (para. 22): was also two days short of providing the “ ... The rationale for requiring the higher required three months’ notice of the school standard when seeking an injunction against closure. Finally, with respect to the Board’s a public authority is that the public policy, the Court found that the Board was a authority represents the public interest, and 10

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few days short of the requirement to receive dismissed. Costs were not argued and no submissions. order was made. The Court relied on the Court of Appeal’s The case emphasizes the importance of the reasoning in Dysart and found that, despite requirements necessary to convince a Court the Board’s breaches, the plaintiffs were not to intervene. Similar principles have been prejudiced by them. Specifically, the Court applied in other cases in other Provinces, noted that attendance at the February 6, including Ontario. 2008 meeting was excellent; that there had ⎯ been proper notice for the original January meeting, which was cancelled due to weather; that there was no evidence that Case Note anyone who wished to make a submission to the Board did not do so as a result of the Sagharian v. Ontario (Minister of shortened time limit; and that steps were Education), [2008] S.C.C.A., no. 350 taken to ensure that adequate arrangements (SCC). were in place for students to attend alternate The plaintiffs in this case, who wish to schools. The Court noted that there was no proceed as a class action with respect to evidence that the two days short notice claims relating to autism, had several affected parents in planning for closure of paragraphs of their Statement of Claim the school or for the change of schools in struck, but leave to amend was provided. September. As a result, the Court held that the plaintiffs failed to establish a strong Rather than amending their claim, the prima facie case and a mandatory plaintiffs appealed the lower court decision interlocutory injunction was not appropriate to the Ontario Court of Appeal, which in the circumstances. upheld the lower court’s decision and struck The Court also dismissed the plaintiffs’ further paragraphs, with leave to amend (see claim that there was a lack of procedural “Recent Developments in Autism fairness in the way the Board conducted this Litigation”, Education Law Newsletter, Fall, matter. The Court agreed that the Board 2008). Again, rather than amending their owed the plaintiffs a duty of procedural claim, the plaintiffs sought leave to appeal fairness, but found no breach of the duty the Court of Appeal’s decision to the owed. Supreme Court of , which denied leave. In the event that the Court was wrong in its conclusion that the plaintiffs did not have a Based on an article in the Toronto Sun, strong prima facie case, the Court also found which appeared on March 19, 2009, it is unknown whether or not the plaintiffs will that the plaintiffs failed to meet the amend their claim and seek certification as a requirements under the irreparable harm and class action. balance of convenience prongs of the test for granting a mandatory interlocutory ⎯ injunction. The plaintiffs’ application for a mandatory interlocutory injunction to compel the Board to continue the operation of the Milden School pending the outcome of trial was

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36 Toronto St. Suite 920 Toronto, Ontario M5C 2C5 Phone: 416-367-2900 Fax: 416-367-2791 Keel Cottrelle LLP Education Law Newsletter The information provided in this Newsletter is not intended to be professional advice, and should not be relied on by any reader in this context. For advice on any specific matter, you should contact legal counsel, or contact Bob Keel or Nadya Tymochenko at Keel Robert Keel - Executive Editor Cottrelle LLP. Nadya Tymochenko—Managing Editor

Contributors — The articles in this Newsletter were prepared by Kate Keel Cottrelle LLP disclaims all responsibility for all Waters, Kimberley Ishmael and Emily Peddle, who consequences of any person acting on or refraining from acting in reliance on information contained herein. are associated with KEEL COTTRELLE LLP.

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