Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Minister of Education v. Kennedy et al.,

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Larlee and Richard, JJ.A.
• Neutral Citation: 2015 NBCA 58
• Citation: (2015), 444 N.B.R.(2d) 92 (CA),2015 NBCA 58,392 DLR (4th) 187,[2015] NBJ No 251 (QL),(2015), 444 NBR(2d) 92 (CA),[2015] N.B.J. No 251 (QL),444 NBR(2d) 92,392 D.L.R. (4th) 187,444 N.B.R.(2d) 92
• Date: 25 September 2015
• Court: Court of Appeal (New Brunswick)

Kennedy v. N.B. (2015), 444 N.B.R.(2d) 92 (CA);

    444 R.N.-B.(2e) 92; 1163 A.P.R. 92

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. NO.003

Renvoi temp.: [2015] N.B.R.(2d) TBEd. NO.003

Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Minister of Education (appellant) v. Tracie Kennedy, Philip Kennedy, Sandra Speight, Paul Gordon, Cindy Richards, Dwight Richards, Julie Marr, Jamie Marr, Grant London, Tammy London, Terry Marr, Melanie Marr, Rae Marie Paisley, Cindy Peterson, Ashley Tayes, Amanda Wood, Lee-Ann Smith, Donald Paterson, Duane Taylor, Rebecca Taylor and Ken Craft (respondents) and Anglophone South District Education Council (intervener)

(76-15-CA; 77-15-CA; 2015 NBCA 58)

Indexed As: Kennedy et al. v. New Brunswick (Minister of Education)

Répertorié: Kennedy et al. v. New Brunswick (Minister of Education)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Richard, JJ.A.

September 25, 2015.

Summary:

Résumé:

In two separate applications, the applicants sought judicial review of the Minister of Education's decisions to close two schools.

The New Brunswick Court of Queen's Bench, quashed the Minister's decisions. See Kennedy v. New Brunswick (Minister of Education), [2015] N.B.J. No. 205; 2015 NBQB 170, respecting Brown's Flat Elementary School, and Craft v. New Brunswick (Minister of Education), [2015] N.B.J. No. 206; 2015 NBQB 171, regarding Lorne Middle School. The Minister appealed.

The New Brunswick Court of Appeal, in a decision reported at [2015] N.B.R.(2d) Uned. 72, allowed the appeal, with short reasons delivered from the bench. The court indicated that more fulsome reasons would follow.

The New Brunswick Court of Appeal delivered fuller reasons for judgment.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunals - Reasons for decision - Sufficiency of - The New Brunswick Court of Appeal stated that "It is not clear ... how the absence or insufficiency of reasons could justify setting aside a decision whose substantive reasonableness is conceded." - See paragraph 86.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunals - Reasons for decision - Sufficiency of - [See second Education - Topic 794 ].

Administrative Law - Topic 550

Hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of - [See first Administrative Law - Topic 549 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - Policy 409, which was adopted in the late 1990s by the then Minister of Education, set out a process for a District Education Council to follow should it wish to secure ministerial approval of a proposed school closure - Section 6.6.2 of Policy 409 provided that: "When notified of a recommended school closure, the Minister will review it in relation to the principles of procedural fairness, with consideration of the factors taken into account during the public consultation process. The Minister may approve the recommendation or withhold approval if, in the opinion of the Minister, procedural fairness has not been applied or relevant educational options have not been considered." - A single statutory provision, s. 3.1 of the Education Act, dealt with school closures - It provided that: "A District Education Council may, with the approval of the Minister, close a school established by the District Education Council under subsection 2(1) or any school for which responsibility is transferred to the District Education Council under subsection 3(2)." - The New Brunswick Court of Appeal stated that "the object and effect of Policy 409 is to provide a useful practical guide for District Education Councils wishing to secure ministerial approval of a school closure. Policy 409 is not a legally binding rigid and inflexible code, and compliance with its every dictate is not a prerequisite to the Minister's exercise of discretion pursuant to s. 3.1 of the Education Act. That said, and although the Policy does not, strictly speaking, apply to the Minister, section 6.6.2 can be reasonably understood as a ministerial representation that he or she will seriously consider withholding approval if certain conditions are not met. ... [S]ection 6.6.2 gives rise to legitimate expectations on the part of the parents of affected students that the Minister, in exercising the discretion conferred by s. 3.1 of the Education Act, will give serious consideration to withholding approval if: (1) the recommending Council did not respect the rules of procedural fairness, as defined in the Policy; and (2) all relevant factors and educational options were not considered during the public consultation process. To define those expectations as obligating the Minister to withhold approval in all cases where those circumstances avail would be tantamount to stripping him or her of the unqualified discretion conferred by s. 3.1. Legitimate expectations cannot give rise to substantive rights." - The court was open to the possibility that special circumstances might preclude or reshape these expectations - See paragraphs 77 to 80.

Constitutional Law - Topic 114

Definitions - Rule of law - The New Brunswick Court of Appeal stated that "The rule of law was never designed to bring about government by judges. As we noted in remarks incidental to the judgment rendered from the bench '[a]bsent a sufficiently weighty juridical basis for intervention, in a parliamentary democracy, judges, none of whom are elected, must leave standing policy decisions taken by the elected representatives of the people'" - See paragraph 106.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - [See Constitutional Law - Topic 114 ].

Education - Topic 52

General and definitions - School - Defined - The New Brunswick Court of Appeal discussed the meanings of "school" and "public education" as found in the Education Act, S.N.B. 1997, c. E-1.12 - The court stated that "The Act defines a 'school' as 'a structured learning environment through which public education is provided to a pupil'. Expectedly, it defines 'public education' as something entirely different: '"public education" means those educational programs and educational services, extending from kindergarten to graduation from high school, provided by the Minister under this Act to persons who are of school age [.]' In ordinary parlance, 'schools' and 'public education', while closely related, are distinct concepts. It is therefore not surprising that the Education Act treats 'schools' and 'public education' as such, the latter being provided through the former ." - See paragraphs 70 to 72.

Education - Topic 53

General and definitions - Public education - Defined - [See Education - Topic 52 ].

Education - Topic 794

Education authorities - School commissions or boards - Closing or restructuring of schools - Procedure - [See Administrative Law - Topic 2267 ].

Education - Topic 794

Education authorities - School commissions or boards - Closing or restructuring of schools - Procedure - Policy 409, which was adopted in the late 1990s by the then Minister of Education, set out a process for a District Education Council to follow should it wish to secure ministerial approval of a proposed school closure - Section 6.4.2 of Policy 409 stated that a Council had to consider eight criteria when studying a school's sustainability although it might consider other factors relevant to local circumstances - An application judge quashed the Minister of Education's approval respecting two school closures on the basis that the Council breached the rules of procedural fairness at the final public meeting by failing to deliver, in that forum, reasons that reviewed and "weighted" the eight mandatory factors in arriving at the conclusion that closure was "the optimal available option" - In the case of one school, the judge was also swayed by what he perceived to be the Council's failure to actually consider one of those factors, "economic development" - In the judge's view, this failure rendered unreasonable the Minister's conclusion that there had been both proper consultation and an appropriate consideration of all relevant factors - The Minister appealed - The New Brunswick Court of Appeal allowed the appeal - The court stated, inter alia, that "Significantly for our present purposes, 'procedural fairness', as defined in both English and French, informs the public consultation process; it does not command the post-consultation delivery of reasons for decision by the District Education Council. Obviously, the application judge overlooked this critical feature of Policy 409 when he interpreted section 6.5.4 as requiring the delivery of reasons that 'weighted' individually the pertinent factors. ... [T]he authors of Policy 409 did not intend to preclude all school closures, which is what would likely happen if a District Education Council were required to provide reasons that reviewed and 'weighted' each mandatory factor. Councils make decisions through votes by councilors. It is difficult to imagine how they could settle on a common position regarding the individual weighting of the eight mandatory factors identified in Policy 409." - Further, "One must always remember the Council is not a judicial or quasi-judicial tribunal and its recommendations are non-adjudicative decisions driven by policy and budgetary considerations. Viewing the matter realistically, the Council did everything that could be reasonably expected of it." - See paragraphs 1 to 9 and 83 to 105.

Education - Topic 1107

Education authorities - Ministers of education - Judicial review of decisions - An application judge quashed the Minister of Education's approval respecting two school closures - The Minister appealed - The New Brunswick Court of Appeal stated that "The Minister approved closure after finding the rules of procedural fairness had been applied, all relevant factors had been considered and all educational options had been examined. The application judge accepted reasonableness as the governing standard of review for those findings. I agree, with one exception: the Minister's finding on the issue of procedural fairness is not owed deference." - See paragraph 82.

Education - Topic 1112

Education authorities - Ministers of education - Powers - Closing of schools - [See Administrative Law - Topic 2267 ].

Words and Phrases

Public education - The New Brunswick Court of Appeal discussed the meaning of this phrase as found in the Education Act, S.N.B. 1997, c. E-1.12 - See paragraphs 70 to 72.

Words and Phrases

School - The New Brunswick Court of Appeal discussed the meaning of this word as found in the Education Act, S.N.B. 1997, c. E-1.12 - See paragraphs 71 and 72.

Cases Noticed:

Georgetown (Town) v. Eastern School District of Prince Edward Island et al. (2009), 286 Nfld. & P.E.I.R. 8; 883 A.P.R. 8; 2009 PESC 14, refd to. [para. 66].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 69].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development) (1980), 42 N.R. 312 (F.C.A.), affd. [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 74].

Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al. (1994), 164 N.R. 342 (F.C.A.), refd to. [para. 75].

Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al., [1998] 2 F.C. 548; 221 N.R. 372; 155 D.L.R.(4th) 572; 1997 CarswellNat 2509 (F.C.A.), refd to. [para. 76].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 81].

Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd. - see/voir Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141.

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 2010 NSCA 19, agreed with [para. 81].

Mr. Shredding Waste Management Ltd. v. New Brunswick (Minister of Environment and Local Government) (2003), 264 N.B.R.(2d) 323; 691 A.P.R. 323; 2003 NBQB 243, affd. (2004), 274 N.B.R.(2d) 340; 718 A.P.R. 340; 2004 NBCA 69, refd to. [para. 83].

Saint-Quentin (Town) v. New Brunswick (2015), 440 N.B.R.(2d) 205; 1148 A.P.R. 205; 2015 NBQB 169, refd to. [para. 84].

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 86].

Statutes Noticed:

Education Act, S.N.B. 1997, c. E-1.12, sect. 3.1 [para. 67]; sect. 6(b.2) [para. 70].

Counsel:

Avocats:

Christian E. Michaud, Q.C., and Amy R. Gough Farnworth, for the appellant;

Kelly Lamrock, Q.C., for the respondents;

André G. Richard, Q.C., and Josie H. Marks, for the intervener.

This appeal was heard by Drapeau, C.J.N.B., Larlee and Richard, JJ.A., of the New Brunswick Court of Appeal, on September 25, 2015, when Drapeau, C.J.N.B., delivered oral reasons for judgment from the bench for the court. Drapeau, C.J.N.B., subsequently delivered the following more fulsome reasons for judgment for the court in both official languages.