Private (School) Decision Not Reviewable 

publication 

April 2014

Litigation Bulletin
Adam D.H. Chisholm, Gideon Ng, Student-at-Law
After a student of a private school was expelled for his conduct on the last day of grade 12, the student and his parents sought judicial review of the decision.

The expulsion was overturned by the majority of the Divisional Court.1 The court found that the expulsion decision was reviewable by the court. It also held that there was a denial of natural justice because the student and family were not given adequate opportunity to be heard.

The school, Appleby College, appealed the Divisional Court's decision to the Ontario Court of Appeal, on the basis that the court did not have jurisdiction to review its decision. The Court of Appeal agreed with the school and the decision of the school was thereby restored.2

The Court of Appeal's analysis focused first on whether the school's decision was a "statutory power of decision". It was on this basis that the Divisional Court had held that the school's conduct was reviewable under Ontario's legislation governing judicial reviews.3 The Court of Appeal looked at whether the school's decision was conferred "by or under a statute". It held that the Divisional Court's order was one to quash – the prerogative writ of certiorari – which did not depend on whether the school's decision was a "statutory power of decision". However, in many ways the court treated this issue as obiter. The Divisional Court's report card was graded on a different issue altogether.

The Court of Appeal held that a decision must be coloured with a public element to be subject to public law remedies.4 It adopted into Ontario, at an appellate level, Stratas J.A.'s reasoning in the Federal Court of Appeal in Air Canada v. Toronto Port Authority.5 The Court of Appeal listed a variety of factors which could be considered in determining whether a decision is public.6 Such factors, when applied to the student's expulsion, meant that the remedy sought should be in private law and not public law.

The focus of the Court of Appeal's reasoning was that public remedies are not available for matters which are not sufficiently public.

Three points are worthy of note (by pen and paper?). First, the Court of Appeal expressly drew a line between relief granted under sections 2(1)1 and 2(1)2 of the JRPA.7 The Court did not address whether the same public/private distinctions would be drawn for an application brought under JRPA section 2(1)2.

Second, the Court of Appeal did not preclude relief being available under contract law. After speaking of how public law remedies were not available, the court said that "[the school] acknowledges that the [student and his family] are protected in this regard by their contract".8 It is unknown what, if any, disciplinary procedural steps are laid out in the contract between the school and its students.

Last, this decision creates an interesting practical effect. It may be that private school administrative decisions are not subject to review while certain public school decisions are. The Court of Appeal emphasized that Appleby College, as a private school, is not governed by the provisions concerning behaviour, discipline and safety under Ontario's legislation governing public education.9 At least one decision has evaluated the reasonableness of public school expulsion in the context of these provisions in the past.10 It remains to be seen whether the courts would advise "public school" students that they too could not have "public law" remedies.

by Adam D.H. Chisholm and Gideon Ng, Student-at-Law

1 Setia v Appleby College, 2012 ONSC 5369.

Setia v Appleby College, 2013 ONCA 753 [Setia Appeal].

Judicial Review Procedure Act, RSO 1990, c. J.1 [JRPA].

Setia Appeal at para. 33.

5 2011 FCA 347.

Setia Appeal at para. 34.

Setia Appeal at para. 29.

Setia Appeal at para. 40.

9 Education Act, RSO 1990 c. E.2; Setia Appeal at para. 4.

10 See e.g. discussion of the role of the Child and Family Services Review Board and judicial review of its decisions in Kawartha Pine Ridge District School Board v Grant, 2010 ONSC 1205.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014