Speaker's Corner: Courts should be able to review private school expulsions

Last month in Moore v. British Columbia (Education), the Supreme Court of Canada said that all children are entitled to an education “because a healthy democracy and economy require their educated contribution.” The case involved a student with dyslexia whom the top court determined had been discriminated against by a school board in British Columbia. The court’s endorsement was reminiscent of the U.S. Supreme Court’s decision more than a half-century ago in Brown v. Board of Education, a case in which it said “education is perhaps the most important function” of governments and “the very foundation of good citizenship.”

But surely this remains true for all children, regardless of abilities, personal characteristics or origins. It should also include those in private schools.

However, that point seems to be missing from the Ontario Superior Court of Justice’s recent decision in W.W. v. Lakefield College School. In that case, it ruled that a private school’s decision to expel two students was immune from judicial review.

Lakefield has a zero-tolerance policy regarding illicit drug use on campus. Its policy is that students caught using or possessing illegal drugs on school property “will be expelled from the school.” There’s no progressive discipline for such infractions, nor room for discretion on the part of school administrators to modify or temper the punishment.

Last year, two Grade 12 students at Lakefield, both 17, were caught smoking marijuana in their residence and expelled. There was no hearing before the school’s board of directors, nor did the students’ families participate in any way at the board’s meeting that took place by conference call. The students went to court to seek an order reinstating them, but their application for judicial review was dismissed. The Ontario Superior Court of Justice said it has no jurisdiction to judicially review the expulsion decision since Lakefield is a private school and wasn’t exercising a “statutory power of decision.”

The court recognized that these expulsions had a drastic impact on the students, who both have learning disabilities and who “benefited greatly from Lakefield’s renowned services in the areas of their exceptionalities.”

In Ontario, the authority to commence an application for judicial review is governed by s. 2(1) of the Judicial Review Procedure Act. It makes judicial review available in respect of a “statutory power of decision” but also in respect of any “proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.”

Courts often forget about the availability of judicial review under paragraph 1 of s. 2(1) of the Judicial Review Procedure Act. Indeed, the court in Lakefield gave no consideration to paragraph 1 at all, nor did it quote from or even refer to s. 2(1) of the act.

Lakefield’s expulsion decision should have been subject to judicial review because the students were essentially seeking an order in the nature of certiorari under paragraph 1 of s. 2(1) of the act.

Over the years, the remedy of certiorari has been used to challenge the expulsion of members from clubs, trade unions, and other bodies not generally considered to be public. The court here should have considered whether, in the modern context, private schools exercising expulsion powers are akin to administrative decision-makers whose decisions can have a drastic impact on individual lives.

Remembering the ringing words of Brown v. Board of Education, we must recognize that the state has, through legislation, delegated the centrally important government function of education to both public and private schools. Decisions of such bodies that interfere with a student’s right to education and are made without procedural fairness shouldn’t be beyond the reach of the courts.

J. Paul R. Howard is managing partner at Shibley Righton LLP in Windsor, Ont. His litigation practice covers education, administrative, human rights, employment, and labour law matters. He can be reached at [email protected].

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