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
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
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
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.
1 Setia v Appleby College, 2012 ONSC 5369.
2 Setia v Appleby College, 2013 ONCA 753
3 Judicial Review Procedure Act, RSO 1990, c. J.1
4 Setia Appeal at para. 33.
5 2011 FCA 347.
6 Setia Appeal at para. 34.
7 Setia Appeal at para. 29.
8 Setia Appeal at para. 40.
9Education 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.
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.
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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