Setia v. Appleby College et al., (2013) 313 O.A.C. 264 (CA)

• Judge: Goudge, Watt and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 20, 2013
• Jurisdiction: Ontario
• Citations: (2013), 313 O.A.C. 264 (CA);2013 ONCA 753

Setia v. Appleby College (2013), 313 O.A.C. 264 (CA)

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Temp. Cite: [2013] O.A.C. TBEd. DE.015

Gautam Setia, Devinder Singh Setia and Navpreet Setia (applicants/respondents) v. Appleby College (respondent/appellant) and Upper Canada College, Ridley College, Havergal College, Bishop Strachan School, Trinity College School, and St. Andrew's College (intervenors)

(C56748; 2013 ONCA 753)

Indexed As: Setia v. Appleby College et al.

Ontario Court of Appeal

Goudge, Watt and Pepall, JJ.A.

December 13, 2013.

Summary:

A student and his parents applied for judicial review of a decision to expel the student after he admitted to smoking marijuana in a friend's dormitory room the night before the final day of his sixth and final year at Appleby College.

The Ontario Divisional Court, Chapnik, J., dissenting, in a decision reported at 299 O.A.C. 336, allowed the application and remitted the matter to the Head of School for reconsideration in light of these reasons. Appleby College appealed.

The Ontario Court of Appeal allowed the appeal.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Education - Topic 8362 ].

Courts - Topic 7503

Provincial courts - Ontario - Divisional Court - Jurisdiction - Respecting judicial review - General - [See Education - Topic 8362 ].

Education - Topic 8362

Private schools - Discipline of students - Expulsion - A student and his parents applied for judicial review of a decision to expel the student after he admitted to smoking marijuana in a friend's dormitory room the night before the final day of his sixth and final year at Appleby College - At issue was whether the court had jurisdiction to judicially review the decision to expel the student and deny him his Appleby diploma - The Ontario Divisional Court held that it had jurisdiction to hear the application - The Ontario Court of Appeal set aside the decision of the Divisional Court and dismissed the application for judicial review - The Divisional Court erred in finding that it had jurisdiction - The jurisdiction to make an order for judicial review quashing the expulsion decision did not depend on whether the decision was the exercise of a statutory power of decision - Rather, the jurisdiction provided by s. 2(1)1 of the Judicial Review Procedure Act turned on whether the expulsion decision was the kind of decision that was reached by public law and therefore a decision to which a public law remedy could be applied - This reflected the purpose of the Act, namely to provide a simplified process to obtain public law remedies in those circumstances where public law applied - The assessment of whether a particular decision was subject to public law and its remedies required a careful consideration of the relevant circumstances of the particular case informed by the experience of the case law - Even if the expulsion decision was considered a statutory power of decision because it could be said to be ultimately sourced in legislation, that did not answer the question raised in this appeal - In many cases the presence of a statute would strongly point to the availability of judicial review - However, here the other considerations outlined also had to be placed in the balance to determine whether the Divisional Court had jurisdiction under s. 2(1)1 to issue the order for judicial review quashing the expulsion decision - When that was done, the conclusion was clear that the decision was not the kind of matter reached by public law - It simply did not have a sufficient public dimension - It was not something to which public law remedies could therefore be applied - The Divisional Court did not have jurisdiction under the Act to issue the order for judicial review.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1981] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 23].

Paine v. University of Toronto (1981), 34 O.R.(2d) 770 (C.A.), refd to. [para. 26].

Bezaire et al. v. Board of Education (Roman Catholic Separate) of Windsor (1992), 57 O.A.C. 39; 9 O.R.(3d) 737 (Div. Ct.), refd to. [para. 30].

Mohr v. Vancouver, New Westminster & Fraser Valley District Council of Carpenters (1988), 32 B.C.L.R.(2d) 104 (C.A.), refd to. [para. 31].

Air Canada v. Toronto Port Authority et al. (2011), 426 N.R. 131; 2011 FCA 347, agreed with. [para. 33].

Statutes Noticed:

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, sect. 2(1)1 [para. 7].

Authors and Works Noticed:

Mullan, David J., Administrative Law (2001), pp. 1, 2 [para. 20, footnote 1]; 433, 434 [para. 19].

Mullan, David J., Administrative Law: Cases, Text and Materials (5th Ed. 2003), p. 1111 [para. 30].

Counsel:

Martin Sclisizzi, for the appellant;

Christopher J. Matthews, for the intervenors;

Ronald D. Manes and Marco P. Falco, for the respondents.

This appeal was heard on August 20, 2013, by Goudge, Watt and Pepall, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Goudge, J.A., on December 13, 2013.