2017-05-24

School board appeal in Bridgewater case dismissed by courts

by Michael Lee

  • <p>MICHAEL LEE PHOTO</p><p>On May 15, the Nova Scotia Court of Appeal dismissed an appeal from the South Shore Regional School Board which argued that the Town of Bridgewater, or any other municipality, does not have the legal standing to challenge school board decisions, as it did when the town launched a judicial review last year.</p>

A court has dismissed an appeal brought forward by the South Shore Regional School Board that would have denied the Town of Bridgewater the legal standing to challenge board decisions.

Legal counsel representing the school board argued that granting the town, and by extension any other municipality, legal standing would create a "significant precedential footprint," raising potential issues for school boards and municipalities generally.

"There is not a case anywhere in Canada where a decision of this nature has been subject to a duty of fairness," said the board's lawyer John MacPherson.

But on May 15, a panel of three judges from the Nova Scotia Court of Appeal, including Chief Justice Michael MacDonald, Justice David P.S. Farrar and Justice Elizabeth Van den Eynden, after a brief recess following arguments from all parties, dismissed the school board's appeal as moot and declared it a "spent issue" with "no precedential value."

"They have discretion and have determined to exercise that discretion," MacPherson told LighthouseNOW from outside the courtroom.

"We did not expect that it would be dismissed [as moot] ...," said the town's legal counsel J.C. Reddy, "but we're pleased with the outcome."

The appeal stems from a judicial review launched by the Town of Bridgewater last November. The town was attempting to have a court overturn a decision made by the school board to move the Grade 10-12 students from Bridgewater Jr./Sr. High School (BHS) to Park View Education Centre (PVEC).

Nova Scotia Supreme Court Justice Mona Lynch ultimately ruled in favour of the school board in March, saying the board's decision was made in a "fair and transparent process" and was within its mandate and power to make.

What the school board had chosen to appeal was not the judicial review itself, but an earlier ruling from Lynch about whether the town had legal standing in the first place.

The board tried to dismiss the judicial review altogether by arguing this point, however, Lynch allowed the case to proceed, resulting in an application from the board in Nova Scotia Court of Appeal.

Legal counsel argued that it was within the school board's mandate to set programs, believing that the transfer of students was not a closure, or a de facto closure as some have argued, but rather a grade configuration and a re-purposing of the building itself.

Grade configurations happen all the time and boards, MacPherson said, are pressed financially.

And while the town does have broad authority in a lot of areas, MacPherson argued, "Education is not one of them."

The Nova Scotia School Board's Association also had legal counsel present to act as an intervenor on the side of the school board.

The association's legal counsel made similar arguments, saying the decision could have broader implications, including a greater use of the court system in addressing situations that could be dealt with through other avenues.

Nancy Pynch-Worthylake, executive director of the association, was present in the courtroom but declined to comment following the outcome.

Reddy argued, on behalf of the town, that there was "no live controversy" between the parties, given the the judicial review had already been decided, and therefore, the panel should not hear the case.

Even if the court had wanted to exercise its discretion, Reddy said there was already a lower court decision that the school board had effectively won and he asked for Justice Lynch's decision not to be disturbed.

"That saga is over," he said. But despite having "won the war," Reddy added that the board wanted to "scorch the earth."

He said even if the town did not have a high possibility of success, it could not be denied procedural fairness. The town also had a genuine interest as the owner of the school building and was willing to take the risk of a judicial review because it thought the review was flawed and could not find another resolution.

Reddy said it would have been difficult for the residents of a rural municipality to find the dollars to litigate two senior legal counsels from Metro Halifax and said the Municipal Government Act provides broad powers for municipalities to act in the best interests of their residents.

But even if there was precedential value, Reddy said he doubted the municipality would engage legal counsel every time a resident disagrees with a decision.

In a statement, Bridgewater Mayor David Mitchell said the court's dismissal of the appeal will not affect or impact the progress made between the board and town in working together.

He said as recently as Monday morning, members from council met with school board staff to discuss how to work cooperatively on upcoming initiatives, including the elementary school playground.

"We were confident in our position and that the outcome for the town, and in fact for all municipalities, would be a dismissal of the board's appeal. While this doesn't change the outcome for students moving from BHS to PVEC, it does give municipalities across Nova Scotia a voice when future reviews take place."

A request for comment to the school board office was not returned prior to publication.

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