The Court of Appeal has unanimously ruled that a private school's
decision to expel a student is not subject to judicial review.
In September, 2012, the Divisional Court quashed
Appleby College's decision to expel a student on his last day
of high school for smoking pot in his residence. A quick refresher
on the facts of the case can be found in a post I wrote last November.
In a nutshell, Mr. Setia was caught smoking pot in his residence
at Appleby College (a prestigious Ontario private high school) on
the day before his final exam of high school. The school expelled
him and while Mr. Setia was able to obtain his Ontario Secondary
School Diploma, his expulsion meant he would be unable to receive
the more prestigious diploma from Appleby.
Mr. Setia applied to the courts to have the decision to expel
him reviewed by a judge. Although Appleby College is a private
school it was created in 1911 by a Special Act of the Ontario
Legislature. Setia argued that this allowed him recourse to a
Judge. The Divisional Court agreed and quashed the school's
decision to expel him.
I noted in my post that most interesting to me was the fact that
the Divisional Court had jurisdiction to hear the application. As
it turns out, the Court of Appeal has decided that the Divisional
Court had no jurisdiction to hear the application and has
overturned the decision on that basis alone.
Appleby, with the support of six other private schools that were
granted intervenor status, argued that the decision to expel Setia
was not an exercise of a statutory power. The school also argued
that in order to engage the remedy of judicial review the decision
in question must come within the scope of public law. The Court of
Appeal agreed with both arguments.
The Court of Appeal found that the statute simply authorized the
Board of Appleby to confer on its officers and employees "such
powers...of discipline as it may think necessary" and that
"the expulsion decision arguably effects the will of the Board
more than the will of the legislature."
More importantly, the Court of Appeal held that even if the
decision to expel was an exercise of a statutory power, the
expulsion decision is the kind of decision that is not reached by
public law and therefore no public law remedy can be applied. The
Court of Appeal canvassed a number of factors in making this
(a) the nature of the decision-maker (Appleby) and its
(b) the decision-maker's relationship to other parts of
(c) the character of the matter for which review is sought;
(d) the extent to which the decision is shaped by private law
rather than public law.
It would not surprise me if Setia attempted to obtain leave to
the Supreme Court, and given the ramifications that this decision
could have on public law and judicial review (not to mention the
impact on teens smoking pot in their dorm rooms Province-wide), it
would not surprise me if the Supreme Court decided to hear the
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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