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Education - Education Act - General. Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered duties under the Education Act, here in a successful appeal of the denial of a R21 motion to strike pleadings:[20] With respect to the records requests, many, if not all, of the records sought by the Respondent are not covered by s. 266(1) of the Education Act, which is limited to the Ontario Student Record (OSR) as set out in guidelines from the Minister. It does not include a “paper trace” of all documents related to a child’s education, or “up to date educational progress” or a child’s “planner.” In any event, on the face of the pleading, the one set of records that might be covered by s. 266(1) of the Act – attendance records - were provided to the Respondent, albeit several months after the request was made.
[21] Similarly, although the Respondent pleads a breach of the Education Act because she was not informed of her son’s suspensions, s. 308 of the Act only requires a principal to “make all reasonable efforts to inform the pupil’s parent or guardian” within 24 hours of the suspension being imposed. The pleading only asserts that the Respondent was not advised of the suspensions; it does not assert that the father, who was the de facto custodial parent, was not informed of the suspensions (the claim identifies other circumstances where the father was notified of discipline), or that the principal failed to “make all reasonable efforts” to inform the mother or the father within 24 hours. Additionally, on at least one occasion, the pleading says that the Respondent was informed of at least one suspension. . Ye v Toronto District School Board
In Ye v Toronto District School Board (Div Court, 2023) the Divisional Court considers (and denies) whether a school attendence decision regarding a specific school meets the definition of "statutory power of decision":[29] The TDSB further submits that this Court lacks jurisdiction to hear the application for judicial review because the Applicant seeks declaratory and injunctive relief, as excerpted from the Application above.
[30] Pursuant to s. 2(1)2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), where an applicant seeks declaratory or injunctive relief, such relief can only be granted in respect of the exercise or refusal to exercise a “statutory power”. A “statutory power” means a power or right conferred by or under a statute:(a) make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or refrain from doing any act or thing that, but for such requirement such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.
JPRA, s. 1. [31] A “statutory power of decision” is defined, in part, as a power or right conferred by or under a statute to make a decision prescribing the legal rights, powers, privileges, duties or liabilities of any person or party or the eligibility of any person or party to receive a benefit or licence. For s. 2(1)2 to apply, there must be a direct statutory authority to make the specific decision being challenged: Paine v. University of Toronto (1981), 1981 CanLII 1921, 34 O.R. (2d) 770; Sprague v. Ontario, 2020 ONSC 2335 (Div. Ct.), at para. 20.
[32] As noted above, the Applicant does not seek review of a particular decision, let alone a decision made pursuant to the exercise of a statutory power. Because there was no exercise of a statutory power of decision, judicial review under s. 2(1)2 is not available and the Court cannot grant the declaratory relief sought by the Applicant: Association of Professors of the University of Ottawa v. University of Ottawa, 2018 ONSC 1191, at paras. 4-6.
[33] The student interest programs and the Policy setting out the admission process are not the product of the exercise of a statutory power of decision. Under s. 171(7) of the Education Act, the TDSB has a broad mandate to “determine the number and kind of schools to be established and maintained and the attendance area for each school… in accordance with policies established by the board from guidelines issued by the Minister[.]” Under s. 169.1(1)(3) of the Education Act, the TDSB is also empowered to “develop and maintain policies and organizational structures that” promote the goals referred to in the Act and encourage pupils to pursue their educational goals. There is no provision in the Act that gives the board the authority to offer student interest programs, that requires that the board to offer such programs or that prescribes a manner in which such programs are to be offered.
[34] The Applicant relies on s. 5(1) of the JRPA, which establishes the timeline within which an application for judicial review must be brought, to argue that judicial review is available for a “matter” and not just a decision. Under s. 2(1)2, however, the relief sought by the Applicant is only available where there is an exercise of a statutory power. As discussed above, the Application does not involve a statutory power of decision and does not otherwise satisfy the definition of the exercise of a statutory power.
[35] The Applicant submits that the TDSB can only act if a specific provision in the Education Act allows it to take action. If the Applicant’s position were correct, and a statutory power to act were required, the TDSB would not be able to offer student interest programs. The Applicant further relies on ss. 39-41 of the Act to argue that only the principal of a school has authority to accept students to a school and seeks to have that “right” restored. This is an incorrect reading of those provisions, which do not grant principals sole authority to admit out of district students to secondary schools.
[36] This court has repeatedly held that “attendance of children at a particular school is not a legal right, benefit or licence. No pupil, therefore, has ‘any vested interest’ in any single school.”: Jackson v. Toronto Catholic School Board, 2006 CanLII 23951 (Div. Ct.), at para. 68. In Chang McLean v. Toronto District School Board, 2021 ONSC 6151 (Div. Ct.), this court found that it was settled law that a student has a legal right to attend a school in section or district where they reside but not a school of their choice. In that case, the reallocation of French immersion programs was found not to affect the rights or privileges of students. As a result, the court had no jurisdiction over the reasonableness of the decision.
[37] In respect of the By-law, under s. 58.5(1) of the Education Act, the TDSB is a corporation with all the powers that are conferred or imposed on it under the Act or any other statute. The TDSB is entitled to pass by-laws that govern the conduct of Board and committee meetings, including restrictions on the ability to reconsider past decisions. The By-law that the Applicant seeks to challenge does not affect his rights, interests, or privileges.
[38] Based on the foregoing analysis, the application is not amenable to judicial review. I find that it is plain and obvious that the Application cannot succeed. As a result, I find it unnecessary to consider the TDSB’s submissions regarding the issues of delay and justiciability. . Ye v Toronto District School Board
In Ye v Toronto District School Board (Div Court, 2023) the Divisional Court considers the private interest standing of an adult that applied for enrolment standard high school courses, as opposed to adult continuing courses:Does the Applicant Have Private Interest Standing?
[19] The issue of public and private interest standing was recently examined in detail by this Court in Kilian v. College of Physicians and Surgeons, 2022 ONSC 5931 (Div. Ct.). A party must have either private interest standing or public interest standing to bring an application for judicial review. For private interest standing, the applicant must show a direct, personal interest in the operation or application of a law: Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at p. 619. A “sense of grievance” is not sufficient, a person must have a “personal legal interest” in the outcome: Landau v. Ontario (Attorney General), 2013 ONSC 6152, at para. 16.
[20] The relevant factors in determining whether there is such an interest include: the statutory purpose, the subject matter of the proceeding, the person’s interest in the subject, and the effect that the decision might have on that interest: Canadian Elevator Industry Education Program
v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, [2016] N.S.J. No. 435, at para. 42.
[21] In my view, the Applicant does not meet the test for private interest standing. He has no personal legal interest in the Policy. The fact that the Applicant applied to attend a student interest program offered by the TDSB is not a sufficient basis to ground private interest standing to challenge the Policy. The Applicant is not entitled to attend a student interest program. He has not demonstrated that he meets the requirements of s. 49.2 of the Education Act, which provides that an adult may be entitled to take a course at a secondary school if the board does not have a course in continuing education that the adult requires to obtain their diploma or to be admitted to a post-secondary program. In any event, he could not meet those requirements. A student interest program is not a requirement to obtain an OSSD or for entry into a post-secondary program.
[22] It is worth noting that in the Application, the Applicant does not specifically challenge the TDSB’s direction that the Applicant apply to a continuing education program. He has not stated that he applied for continuing education. If the Applicant were to be granted standing, any person could challenge the Policy by virtue of having applied to a student interest program.
[23] The Applicant has even less of a direct, personal interest in the operation of the By-law that he challenges. The By-law is an internal governance mechanism for the Board. The failure of the motion to reconsider the Policy does not give the Applicant private interest standing to challenge the By-law that governed. . Monteiro v. CEO Financial Services Regulatory Authority
In Monteiro v. CEO Financial Services Regulatory Authority (Div Court, 2023) the Divisional Court considered pension claims by a long-term night-school teacher lacking credentials:[5] As set out below, the relevant statutory authorities required a person wishing to accrue Credits under the Plan to be “qualified as a teacher”. To be so qualified, the person was required to have been granted one of the following documents by the Minister of Education:. a Certificate of Qualification, qualifying a person to teach in Ontario;
. a Letter of Standing, allowing a teacher qualified in another jurisdiction to teach in Ontario; or
. a Letter of Permission (“LOP”), granting an unqualified person the right to teach in Ontario for a limited period of time when no qualified teacher was available. ....
Letters of Permission
[15] The term, “teacher” was defined under the relevant version of the Education Act[4] as a member of the Ontario College of Teachers. To become a member, the College must have certified the person as qualified to teach in Ontario's publicly funded schools.
[16] Under s. 8(1)(j) of the Education Act, the Minister of Education was entitled to grant a LOP to a school board, authorizing it “to employ as a teacher a person not qualified as such if the Minister is satisfied that no teacher is available, but a letter of permission shall be effective only for the period, not exceeding one year, that the Ministry may specify therein”.
[17] Regulations under the Education Act[5] also allowed school boards to hire unqualified persons to teach for up to ten days in an emergency. Those provisions are not relevant to this court’s consideration.
[18] The requirements for granting an LOP were very strict. As set out in O. Reg. 269 under the Education Act, at para. 49:a. a school board was required to provide the Ministry of Education with proof that it has “advertised at least three times, stating the salary, in a daily newspaper having provincial circulation in Ontario a position for which a teacher is required under the regulations”.
b. When the job position was for a term commencing on the first day of school in September and continuing until at least December 31, at least one such advertisement must have appeared after August 1 of that year.
c. If the position was for the second school term, commencing January 1, it must have appeared at least once after October 31 of the previous year.
d. Further, seven days must have passed since the date of the final advertisement, with no qualified teacher having applied for the position or no teacher who has applied for the position having accepted it.
e. That LOP was valid for a period of no more than one school year. . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court characterizes the nature and purpose of the Education Act:[53] In addition, while the Education Act requires that a board enact a code of conduct, it does not prescribe the standards or content. This demonstrates that the legislature intended for conduct issues to fall within the Board’s authority, which enables the Board to act in a flexible and dynamic manner, responsive to the community it serves.
[54] The purpose of the Education Act is to foster a strong public education system, which is the foundation of a “prosperous, caring and civil society.” Education Act, s. 0.1(1). Subsection 0.1(2) further states that the “purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to their society.” The Board, as a “partner[] in the education sector” has “a role to play in enhancing student achievement and well-being, closing gaps in student achievement and maintaining confidence in the province’s publicly funded education systems.” Education Act, s. 0.1(3).
[55] The focus of the Education Act is thus the public education system and the well-being and achievement of the students who participate in it, with the goal of ensuring they develop into caring, contributing citizens. It is the Board, and therefore its Trustees, who are in service to these objectives and not the public education system that serves a trustee’s objectives. This is made clear by the responsibilities of the Board under s. 169.1(1) of the Education Act, which includes, among others, promoting student achievement and well-being; the prevention of bullying; and “a positive school climate that is inclusive and accepting of all pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability[.]” The responsibilities under s. 169.1(1) of the Act are reinforced under s. 218.1, which requires that board members carry out their responsibilities in a manner that assists the board in fulfilling its duties, including under s. 169.1 of the Act, to maintain focus on student achievement and well-being, and to comply with the board’s code of conduct.
[56] The Board’s role in enhancing student well-being and maintaining public confidence under s. 0.1(3) of the Act is best served by ensuring good governance and adherence to the Code of Conduct. The preamble to the Code of Conduct recognizes that TCDSB Trustees have been entrusted with the education of all students in the community they serve and that the public is “entitled to expect the highest standard from the school trustees that it elects.” The Board should be responsive to the community and students it serves. In view of the legislative objectives, the Board and Trustees’ duties and the need for public confidence in the public education system, it was reasonable for the Board to apply the Reconsideration Provision to the Applicant’s Code of Conduct matter and to consider whether it might have got it wrong the first time.
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