IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Penticton League of Sensible Electors v.

School District 67 (Okanagan Skaha),

 

2008 BCSC 980

Date: 20080722
Docket: 79376
Registry: Kelowna

Between:

Penticton League of Sensible Electors, also known as P.L.E.A.S.E.
on their own behalf and its representatives, David Perry, K. Allan Kenyon,
Marylin Cleland Barnay, James Rheaume, Adeline Rheaume,
David Ernest Shunter, Helene Scott, Michael Brydon, Gill Holland,
Edith J. Lamb, Dorothy Hewitt, Thomas Siddon, Sandra Congram,
Dorothy Morrison, Keith Lindstrom, William Slessor, Valerie Hallford,
Brenda Kenyon and Ronald Mason

Petitioners

And

School District 67 (Okanagan Skaha)

Respondent


Before: The Honourable Mr. Justice Barrow

Reasons for Judgment

Counsel for the Petitioners:

T.J. Johnston
C. Goodrich (Articled Student)

Counsel for the Respondent:

G.J. Litherland

Date and Place of Hearing:

July 15 and 16, 2008

 

Kelowna, B.C.

[1]                The petitioners are, for the most part, a group of Penticton citizens who oppose certain aspects of the proposed redevelopment by the respondent, the Board of Education of School District No. 67 (Okanagan Skaha) (the “Board”), of the Penticton Secondary School.  They seek relief under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.  The specific relief sought in the petition is the quashing of a decision made by the Board on April 14, 2008.  At that meeting, the petitioners sought and were granted an audience to make a presentation by which they hoped to convince the Board not to demolish two of the buildings which form part of the school.  The two buildings are the auditorium and the north gym.  The Board heard the petitioners and did not agree with them.  The effect of this was that the demolition and redevelopment of the school would proceed as planned.  In point of fact, however, there was no decision made at the April 14, 2008 meeting; rather, all that occurred was that the Board heard the petitioners and that was all.

[2]                By their outline and in argument, the petitioners sought to significantly broaden their application.  They argued that the entire process followed by the Board in the course of deciding to redevelop the school was flawed.  They argued that the Board’s actions amount to a closure of the school, and if that is so, the Board is required to follow a Ministerial Order which defines the steps to be taken when a decision of that kind is contemplated.  In the alternative, they argued that the Board was required, as a matter of common law, to afford those affected by the proposed decision, a level of procedural fairness which, they assert, it did not do.

[3]                The respondent takes issue with virtually all that the petitioners argue.  It argues firstly that one of the petitioners lacks the capacity to make this application and that the others lack standing.  In the alternative, it argues that in the absence of an application to amend the petition (and there was none), the petition should be decided on the basis of that which it specifically seeks and nothing else.  In the further alternative, it argues that the decision to redevelop the school does not amount to a closure within the meaning of the Ministerial Order and as such the procedure set out in that order need not be followed.  Next, it argues that if there is a level of procedural fairness required as a matter of common law they afforded and, in fact, exceeded that procedural fairness.  Finally, it argues that the relief, assuming it is otherwise due the petitioners, ought to be refused because of the delay in bringing this action.

[4]                I have concluded that the petition must be dismissed.  In what follows, I will deal first with the factual background to this dispute and then turn to the issues of capacity and standing.  I will next deal with the issue of whether the Board’s decision amounts to a closure within the meaning of the Ministerial Order in question.  I will then deal with the issue of procedural fairness and finally with the issue of delay.

The Background

[5]                Penticton Secondary School is located on an 18-acre parcel of property in the middle of the city of Penticton.  It was founded sometime in the early part of the last century.  It initially consisted of what is known as the Ellis Building which was constructed in 1913.  In 1922, the Shatford Building was added next to the Ellis Building.  Over the next 80 years no fewer than 14, and perhaps as many as 17, building projects have been undertaken on the property.  For present purposes, only two of those are relevant - they are the auditorium and the north gym.  The auditorium is a freestanding wood-framed building constructed in 1950.  The north gym is also a freestanding building dating from 1950.  It is also of wood framed construction.  It is joined to the auditorium by yet another building which is used for music instruction.

[6]                Penticton Secondary School provides instruction to some 1,300 students from Grade 9 to Grade 12.  It is the only senior high school in Penticton.  By at least the turn of the present century, the buildings that comprise the school were in various states of disrepair, and due to their age, upgrading and maintaining them would require significant funds.

[7]                Effective at the start of the 2002/2003 school year, the Ministry of Education, from whom the Board receives its funding, changed the way in which it calculated that funding.  Prior to 2002/2003, funding was based on a value per square meter of the facilities maintained; that was changed to funding based on a value per student enrolled.  The effect of this change was to put those school districts with older facilities, which are more expensive to maintain, at a disadvantage.  That disadvantage was perhaps more acutely felt by School District No. 67 in that Penticton High constituted a significant portion of all the School District’s buildings and was expensive to maintain.  This situation would only get worse as time passed because not only would the School District be required to meet maintenance costs that would likely only increase, it would, sooner rather than later, have to undertake significant repairs to at least some of the facilities in order to keep them in a safe condition.

[8]                In order to decide what to do with the school, the Board approached the Ministry of Education about the possibility of funding for the reconstruction of the school.  The Ministry commissioned an audit of the buildings by MQN Architects.  A detailed audit of all the buildings was carried out, and the firm recommended that the entire school be replaced.  As to the north gym and auditorium, the audit revealed buildings in “moderately poor condition” and noted that but for the moderate state of the structure itself and some of the finishings, it would have been rated more poorly.  For example, it was rated at 12 out of 50 in terms of plumbing; 12 out of 70 in terms of HVAC; 3 out of 40 in terms of fire protection; and 7 out of 40 in terms of its electrical systems.  One of the reasons for the low rating in relation to HVAC is that the 730 seat auditorium has no air conditioning, nor does it have adequate washroom capacity.  In addition to the foregoing, the School District learned during a partial renovation of the auditorium that it has asbestos insulation and the light ballasts have PCB material in them.  These features do not pose a health hazard to students, but their presence means that any attempt to upgrade the building as opposed to rebuilding on the site would be more expensive.  In 2004, the City of Penticton (the “City”) commissioned an assessment of the cost of upgrading the auditorium, and the estimate they received was $3.1 million.

[9]                Given the foregoing, the Board was faced with a decision.  If it decided to simply keep the existing buildings, it would be faced with higher maintenance costs and likely expensive upgrades in the near future.  Because the funding they received depends on the number of students enrolled and does not take into account any peculiar maintenance costs, some of the funds that would otherwise be available for the education of the students would be diverted to cover these costs.

[10]            Mr. Regehr is the secretary-treasurer of the Board.  As such he is charged with the responsibility of overseeing financial and capital planning for the School District.  In view of the state of the buildings that comprise the school and the change in the manner in which School Districts are funded, the Board determined that it either had to upgrade the school or reconstruct it entirely.  Mr. Regehr met with officials from the Ministry during 2002 to explore the options open to the Board.  As a result of those meetings, the Ministry commissioned the architecture audit noted above.  Given the recommendation of the auditors that the existing buildings be replaced, as opposed to upgraded, the Ministry announced its willingness to fund replacement on May 23, 2003.  With that announcement, the Board began planning the project.

[11]            I pause here to address one of the contentions of the petitioners.  They assert that reconstruction of the school was, in effect, preordained because of the way the Board approached the Ministry.  As I understand their position, it is that the Board had decided that it needed to reconstruct the school and then set about securing evidence to support that decision.  While I accept that some of the petitioners hold that belief honestly, there is simply no evidence to support it.  Indeed, the evidence suggests the contrary.  In the March 23, 2003 architectural audit commissioned by the Ministry, the architects note that the School District “would like to retain the …Auditorium, the Music Room, and the Gymnasium”.  In spite of that express wish, the architects recommended replacement of all the buildings.

[12]            Turning to the planning process, the first event of significance was a board meeting on June 9, 2003.  At that meeting, Mr. Regehr recommended to the Board the creation of a committee to consider the options for the school.  The options to be considered included completely rebuilding the school and renovating some or all of the existing structures.  Prior to this meeting, Mr. Regehr had been assisting in the preparation of a bulletin called “Keeping You Informed”, which was circulated to the students at Penticton High and posted on the Board’s website.  The bulletin set out that funding had been approved by the Ministry for the “renovation and/or replacement” of the school.  It pointed out that the cost of maintaining the existing buildings would be $500,000 per year higher than the cost of maintaining a new building suitable for the anticipated enrolment of the school.  It further noted that the Board was not committed to replacing all of the existing buildings, in spite of the higher maintenance costs, in part, because it recognized the heritage value of the Shatford and Ellis buildings and, in part, because it was aware that the broader community used the north gym and the auditorium for sporting and artistic purposes.  Finally, it explained the community review process the Board planned to engage in before it made any final decision.

[13]            Over the summer of 2003, the Board created a number of committees.  The most important one, for present purposes, is the Penticton Secondary School Reconstruction Committee which consisted of a Trustee, Mr. Regehr; the Director of Maintenance, Mr. Hickling; the Superintendent, Mr. Doi; the Assistant Superintendent; the school principal; a teacher representative; a student representative; a representative from the City; a member of the general public; and a representative from the parents of the students.  The committee met for the first time on October 15, 2003.  Over the next 18 months, it met numerous times and considered upwards of 20 different options for the school.  The options ranged from renovating all of the existing buildings to taking all of the buildings down and beginning anew.  Some of the options included keeping the north gym and the auditorium.  By April 5, 2004, the committee had narrowed the options to four – each of them involved taking down the north gym.  These options were announced at a press conference and were published on the Board’s website.  During the period in which the committee was considering the options, its activities were reported in the local media, as was the announcement of the final four options selected.

[14]            During the consultation process, the committee engaged a large number of members of the public as well as those more directly involved with the school, and many expressed the strong view that the Shatford and Ellis buildings be maintained.  These are both of red brick construction, typical of turn-of-the-century public buildings.  The city retained a heritage planner to investigate the heritage significance of these buildings.  He reported to the City that it was possible to build a new school that incorporated as part of it the two heritage buildings.  His report was forwarded to the Board on April 26, 2004.

[15]            On April 28, 2004, a public forum was hosted by the Board at a local school at which the designs of the four options were displayed and to which the public were invited to attend and express their views.  The public took up that opportunity and the questioned the board officials (including the Superintendent, the Secretary-Treasurer, the Director of Maintenance, the architects and some of the trustees).  In addition to the submissions made at this public forum, the Board received separate and additional submissions from teachers, students, staff and parents.  They organized these submissions, which exceed 80 in number, on a spreadsheet.  All of the options included the deconstruction of the north gym, and while that generated some comment, it was not a particularly significant issue based on the spreadsheet summary of those concerns.  The options under consideration entailed only the possibility of the auditorium being torn down.

[16]            Between April and June 2004, the Board and the City negotiated about the future of the Shatford and Ellis buildings.  Ultimately, and to their credit, they were able to agree on a plan which would see these buildings preserved.  The plan involved each institution assuming responsibility for renovating one of the buildings, which would be retained as part of the new Penticton High School.  In particular, the City agreed to be responsible for the Shatford Building and the School District assumed responsibility for the Ellis Building.  This decision had the effect of eliminating from further consideration two of the four options that the committee was considering.

[17]            During and following this process, the matter was being reported at some length in the local media.  On October 26, 2004, the committee met again and considered the remaining two options.  Based on the input it had received and its own analysis of the options, it recommended “Option C” to the Board.  Before doing that, however, it modified that option to allow for the possible retention of the auditorium.

[18]            The Board, upon receiving the committee’s recommendation, issued another edition of the news bulletin on October 27, 2004, explaining the process to date and advising that the committee had recommended Option C.  A sketch of that option was contained in the newsletter which was circulated, as earlier newsletters had been, to the students of the school and posted on the website.  The bulletin indicated that the Board would be meeting on November 8, 2004, to makes its decision.

[19]            Prior to the board meeting on November 8th, the Board held another community forum to discuss the recommended option.  Separate meetings were held for teachers, other staff members at the school, students and parents.  At the public meeting, which was attended by the senior management of the School District and the chairperson of the Board, Mr. Regehr made a PowerPoint presentation and explained why Option C was being recommended.  He specifically explained that the option had been modified to allow for the possible retention of the auditorium, provided that the City or some third party was prepared to assume responsibility for the funding of it, and that such a commitment had to be forthcoming within the next two years.  The meeting was reported on in the local newspaper.  An article dated November 3, 2004, indicated that close to 100 people attended the meeting and recounted that Option C was being recommended and explained that if the auditorium was to be retained, a funding commitment and business plan from a third party needed to be forthcoming within the next two years.

[20]            On November 8, 2004, the Board met as planned and unanimously voted to adopt Option C.  Oddly, two of the petitioners in this matter, Mr. Shunter and Mr. Lindstrom, were trustees at the time of that meeting.  They both voted in favour of the plan.

[21]            The plan as adopted involved the retention of the Ellis and Shatford buildings, the demolition of all the other buildings with the possible exception of the auditorium, the construction of a new gym with retractable seating for 800, new classrooms, a new library, and a host of other facilities.

[22]            Following the November 8th meeting, the committee continued to function but its membership was narrowed to the architects, the School District and the interested parties from the school, which I infer included the students, staff and parents.  On November 24, 2004, Mr. Regehr and Mr. Hickling met with senior staff at the City to discuss the possibility of the City assuming responsibility for the auditorium.  Over the next two years, the Board proceeded with its efforts to construct the new school.  Those efforts were extensive, as any project of this magnitude would be.  They included preparing budgets, working drawings, capital agreements and a litany of other matters.  A contract for the construction was let, and work was undertaken on the site in anticipation of construction commencing in September 2006.  Construction was, in fact, commenced on September 26, 2006.  That event was reported in the local paper in an article that appeared the next day.  In that article, the fact that the north gym would be demolished as part of the construction was made plain, as was the possibility of retaining the auditorium.  The plan was to use to the auditorium for classroom space during the construction of the new school.

[23]            By the fall of 2006, no proposals had been made for assuming the financial responsibility of the auditorium.  With the commencement of construction, the Board needed to make a decision regarding the auditorium.  On December 12, 2006, following a board meeting on December 11th,  the chairperson of the Board wrote to the City advising that a decision on the auditorium needed to be made and that if the City was interested in assuming responsibility for the building, they needed to so indicate by March 31, 2007.  On March 13, 2007, members of the senior staff of the school district met with the mayor of the City and other representatives to discuss the future of the auditorium.  The City requested an extension of the deadline to June 1, 2007.  The Board eventually agreed to that extension.  During this time and as the demolition of the gym became immanent, the Board continued to receive letters and other submissions from the public about the fate of both the gym and the auditorium.  On March 18, 2007, the chairperson of the Board wrote a letter to the editor of the local newspaper explaining, again, the Board’s decision and its insistence on a third party assuming responsibility for the auditorium if it was not to be demolished and reiterating that the gym was going to be demolished no matter what.

[24]            By May of 2007, a citizens group calling themselves “Save Our North Gym Committee” (“S.O.N.G.”) had formed.  They made a presentation to the Board at their regular meeting on May 14, 2007.  After listening to their submission, the chairperson of the Board explained that there was no student need for the north gym in that the new gym which was then under construction met the students’ needs.  Moreover, the group’s presentation did not include any commitment to assume the cost of the facility.  The group also made a presentation to the City in early June 2007.  On June 4, 2007, the City formally declined to assume financial responsibility for the auditorium (and the north gym, although that was not an option the Board was entertaining in any event).  Among other things, it noted that it intended to purchase another property for $1.25 million for a new performing arts center.  The cost of this land is less than even the most conservative estimates for renovating the auditorium.  The mayor wrote a letter to the editor of the local paper explaining why the City had declined to take up the Board’s offer to assume responsibility of the auditorium citing foregoing reasons among others.  This is how matters stood for the balance of 2007 while construction continued.

[25]            In the spring of 2008, another group of citizens organized under the name P.L.E.A.S.E. (Penticton League of Sensible Electors).  They sought and were granted an audience with the Board at their meeting of April 14, 2008.  In advance of the meeting they had, at the Board’s request, submitted a copy of their PowerPoint presentation.  It was a largely a duplication of the presentation that the SONG group had made a year earlier with the addition of making reference to the provincial government’s commitment to student physical education and the fact that there was a ministerial order setting out the process to be followed in the event of a school closure and that the process had not been followed.  Their presentation did not involve a funding commitment or a business plan for the auditorium but they did offer to fundraise.  The Board was not persuaded by the group’s presentation and resolved to proceed with their plan to demolish the gym and the auditorium.

[26]            With that background I will turn to the issues.

Capacity and Standing

[27]            The issue of capacity relates to the petitioner, P.L.E.A.S.E.  P.L.E.A.S.E. is not an incorporated society or company.  It is simply a group of interested citizens who have organized to advance their view of what should happen to the gym and the auditorium.  In order to have the capacity to launch or maintain an action, whether by petition or otherwise, it is necessary that a petitioner or plaintiff be a legal entity with that capacity.  An unincorporated society or group cannot sue or be sued in its own name.  If authority is needed for this elementary proposition, it can be found in, among other places, The Conduct of Civil Litigation in British Columbia, 2nd ed. at p. 38-4, and Yue Shan Society v. Chinese Workers’ Protective Association, [1944] B.C.J. No. 107 (C.A.) at para. 76.  The issue arose more recently in Canadian Reform Conservative Alliance Party Portage-Lisgar Constituency Assn. v. Harms, 2003 MBCA 112, in the context of a constitutional challenge to certain provincial legislation in Manitoba dealing with the capacity to sue or be sued.  In the course of his judgment, Scott C.J.M. wrote at para. 22:

...The fundamental principle that an unincorporated association is not a legal entity is well established.  See, for example, Society Brand Clothes Ltd. v. Amalgamated Clothing Workers of America et al., [1931] S.C.R. 321, Canada Morning News Company v. W.G.B. Thompson et al., [1930] S.C.R. 338, and Yue Shan Society v. Chinese Workers' Protective Association, [1944] 2 D.L.R. 287 (B.C.C.A.).  Such an association has no standing to sue or be sued.  See Halsbury's Laws of England, 4th ed. (reissue) (London:  Butterworths, 1998) vol. 9(1), and Residential Schools (Re) (2001), 204 D.L.R. (4th) 80, 2001 ABCA 216...

[28]            This is an accurate statement of the law in this province.  It follows that the petitioner, P.L.E.A.S.E., does not have the capacity to launch or sustain a legal action, and therefore this petition is a nullity to the extent that it rests on the participation of that group.

[29]            The issue of standing relates to the 19 individual petitioners.

[30]            Standing, in the context of an action in which a private citizen seeks to challenge the exercise by a public body of its authority, requires that the citizen has the qualities necessary to mount such a challenge.  Traditionally, the Attorney General is the official that is charged with that responsibility.  The law has, however, fashioned exceptions to that traditional rule.  The exception first found expression in Boyce v. Paddington Borough Council, [1903] 1 Ch. 109 where Buckley J. said this on the issue at p. 114:

A plaintiff can sue without joining the Attorney-General in two cases:  first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right...

[31]            This statement of the law was adopted by the Ontario Court of Appeal in Cowan v. Canadian Broadcasting Corporation, [1966] 2 O.R. 309-315, where Schroeder J.A. put it this way at p. 311:

A plaintiff, in attempting to restrain, control, or confine within proper limits, the act of a public or quasi-public body which affects the public generally, is an outsider unless he has sustained special damage or can show that he has some "special interest, private interest, or sufficient interest".  These are terms which are found in the law of nuisance but they have been introduced into cases which also involve an alleged lack of authority.  Therefore, in an action where it is alleged that a public or quasi-public body has exceeded or abused its authority in such a manner as to affect the public, whether a nuisance be involved or not, the right of the individual to bring the action will accrue as it accrues in cases of nuisance on proof that he is more particularly affected than other people.

[32]            The Supreme Court of Canada considered the question of standing in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 [Finlay], in doing so they adopted these two expressions of the rule.  They went on, however, to extend what has become known as the “public interest” exception to the general rule.  That exception, in the context of challenges based on the constitutionality of an act by an administrative body, had been established by earlier decisions of the court.  Finlay did not involve such a challenge, and the issue was whether the public interest exception should be extended to other kinds of challenges (see para. 31).  The court concluded that it did (para. 32) and held that the standing in the context of non-constitutionally based challenges was governed by the same limitations as had been established in the constitutional context.  Those limitations are three in number.  The first is justiciability, which is intended to maintain respect for the role of the courts as opposed to the other branches of government.  The second requirement is meant to address the concern about scarce judicial resources, a concern which is met when the applicants are able to establish that there is a serious issue raised in which they have a genuine interest.  A genuine interest is not, in this context, to be confused with an assessment of the motives of the applicants but rather refers to the implications of the impugned action on the applicants.  The third requirement is concerned with the need to ensure that the court has the competing views of those most affected by the impugned decision or action.  It is met by asking whether there is no other reasonable and effective manner by which the issue may be addressed by the court.

[33]            The issue raised in these proceedings is whether the petitioners meet the requirements of standing either as traditionally understood, and if not, whether they come within the public interest standing framework.  With that in mind, I turn to the circumstances of the petitioners.

[34]            Mr. Perry is a former mayor of the City of Penticton and a retired teacher.  He is the founder of S.O.N.G. and a member of P.L.E.A.S.E.  He has deposed that the loss of the gym and auditorium would be a “terrible blow to the community” because the multi-purpose room in the new school is not an adequate substitute as a venue for performing arts either for the high school or the community.  He deposes that there is no other facility in the community with similar acoustical qualities or seating capacity.  He deposes that both the gym and the auditorium are used by the school and the community outside of school hours.  As to the gym, he deposes that there is a shortage of gym space in the city for adult recreational activities.  He has been involved in coaching youth activities for 30 years and, in 2005, attempted to organize an indoor field hockey league but was unable to do so due to lack of gym space.

[35]            Dr. Siddon is also a petitioner in this proceeding.  He is a retired federal Cabinet Minister and Member of Parliament.  He is an avid supporter of the arts in Penticton and maintains the auditorium must be retained until a suitable substitute facility can be constructed.  He has long experience in attending events at the auditorium and from that experience has formed a strong emotional attachment to the facility.  He has been active in the P.L.E.A.S.E. organization since its inception in early 2008.  He does not depose that he is a user of the gym.

[36]            Dr. Congram is a physician and member of both S.O.N.G. and P.L.E.A.S.E.  She is committed to encouraging an active lifestyle and deposes that the gym and auditorium are needed in the community to advance that goal.  She has not deposed that she is a user of either facility.

[37]            Ms. Barnay is retired and a member of the Penticton community.  She is an avid supporter of the arts in that community and a member of P.L.E.A.S.E.  She has not deposed that she is a user of the gym.  Ms. Rheaume is also retired and a long‑time resident of Penticton.  She has not deposed that she is a user of the gym or the auditorium.

[38]            Mr. Mason retired in 1999 as the superintendent of maintenance for the respondent.  He is a member of P.L.E.A.S.E. and S.O.N.G.  He, too, is strongly committed to the retention of both the gym and the auditorium but has not deposed that he is a user of either facility.

[39]            Mr. Kenyon was the mayor of Penticton from 1976 to 1980.  He is a member of both S.O.N.G. and P.L.E.A.S.E.  He is concerned, as are all the petitioners, about the welfare of his community and, in that regard, wishes to see the Board retain the gym and the auditorium.  He has not deposed that he is a user of either facility however.

[40]            Ms. Morrison is a retired broadcaster and resident of Penticton.  She, too, is a member of P.L.E.A.S.E. and S.O.N.G.  She is convinced of the value of the gym and the auditorium to the community and does not wish to see them demolished, unless and until alternative facilities are in place.  She has not deposed that she is a user of either facility.

[41]            Mr. Shunter is the chairperson of P.L.E.A.S.E.  He is retired from a long career in education, which included 13 years as principal of Penticton Secondary School.  He is a former trustee of the respondent and, in that capacity, voted for the adoption of Option C as noted above.  Although he is committed to the preservation of both the gym and the auditorium, he has not deposed that he is a user of either of them.

[42]            Mr. Lindstrom is a retired teacher and member of S.O.N.G. and P.L.E.A.S.E.  He was a trustee of School District No. 67 for six years until 2005.  While he also sees great value in the preservation of the gym and auditorium, he has not deposed that he is a user of either facility.

[43]            Mr. Brydon is a professor at Simon Fraser University but lives in Penticton.  He is a member of P.L.E.A.S.E.  He has deposed that he has three school age children who are active in a variety of culture and sporting community level activities.  He has not deposed that he is a user of the gym or the auditorium, but I infer that his children may make use of the gym for some of their activities.

[44]            Ms. Campbell is a former mayor of Penticton, having served in that capacity from 1996 to 1999.  She was a councillor prior to that.  She is opposed to the demolition of the gym and the auditorium but has not deposed that she is a user of either facility.  Mr. Rheaume is a retired chartered accountant and long-time resident of Penticton.  He was for many years a school administrator in a neighbouring district.  He, too, is a member of P.L.E.A.S.E., and while he opposes the demolition of the gym and the auditorium, he has not deposed that he is a user of either.  Finally, Ms. Lamb is a retired teacher and local government official.  She is a former city councillor and director of the regional district surrounding Penticton.  She, too, is committed to saving the gym and auditorium but has not deposed that she is a user of either facility.

[45]            Several things are worthy of note in relation to the petitioners and the question of standing.  The first is that with the limited exception of Mr. Perry, who uses gyms in the city in his capacity as a coach of youth sporting activities, and Mr. Siddon, who uses the auditorium as a patron of the arts, none of the petitioners have deposed to any connection with the two buildings slated for demolition that is different than any citizen has.  The second point is that none of those connected with the high school have joined in this action.  No teacher, administrator or other staff member is among the petitioners; no student is included in their ranks; and finally none of the more than two thousand parents of students at the school have associated themselves with this petition.

[46]            As to standing in the conventional sense, the issue is whether the Board’s decision to demolish the gym and the auditorium affects any of the petitioners’ private rights or special interests.  The answer to that question must be no.  While the Board makes its facilities available for the community to use when they are not being used for the Board’s primary interest, namely, the education of its students, it cannot be said that the petitioners have a private or special right to use those facilities.  Further, with the two exceptions just noted, none of the petitioners have deposed that they use them at all.  As to the two exceptions, that is, Mr. Perry and Mr. Siddon, their use is no different than that which any other member of the public enjoys.  It has not been shown that they are particularly or peculiarly affected by the decision under consideration.  I am not persuaded that any of the petitioners individually or all of them collectively have demonstrated that they are entitled to standing in the traditional sense.

[47]            As to the issue of public interest standing, my conclusion is the same.  Assuming the requirement of justiciability is met, I am not persuaded that the petitioners have met the other two aspects of the test, namely, that they have a particular interest or serious interest in the decision and that there is no other reasonable and effective manner by which the issue might be brought before the court.  As to the former consideration, I simply repeat that which I have already said about the petitioners’ circumstances in relation to standing more traditionally understood.  In coming to this conclusion, I am not to be taken as suggesting that the petitioners are otherwise than in earnest, clearly they are; what they are not is affected by the decision in a way that meets the second requirement of public interest standing.  As to the latter consideration, I observe that there is a group, in fact a rather substantial group, whose interests are more directly affected than those of the petitioners.  The group consists of the entire school community:  the teachers, the students, the staff and the parents.  Any one of that group would be entitled to seek review of the decision and none of them have.  There is no evidence as to why they have not joined in this proceeding.  I am left to infer that they support the Board’s decision, although I do not rest my decision on that inference.

[48]            The Nova Scotia Supreme Court considered the question of standing in a similar context in Potter v. Halifax Regional School Board, [2001] N.S.J. No. 294 [Potter].  In that case, the Board decided to close two elementary schools.  The petitioners were parents of students at one of the schools.  Davison J. concluded at paras. 39 and 40 that they did not have standing to challenge the closing of the school in which their children were not students.  He came to that conclusion on the basis that the applicants did not meet the second and third requirement for public interest standing set out in Finlay.  As to the third requirement, he observed that the parents of students in the other school would have standing and were more directly affected by the closure of that school than the applicants.  He came to this conclusion notwithstanding that the children of the applicants would be affected to the extent that the closure of the other school would result in an increase in the student population of the applicants’ children’s school.  Potter was appealed to the Nova Scotia Court of Appeal, and the chambers judge’s decision was overturned as it related to the school in which the applicants had children attending.  The Court of Appeal declined to deal with the standing issue because by that point it was moot, the other school having been irretrievably closed.

[49]            It follows from the foregoing that the petition must fail on the basis that the applicants do not have standing.  In the event I am wrong in my conclusion on that issue, I will deal with the merits of the matter.

Does the Board’s Decision Amount to a Closure?

[50]            Section 73(1) of the School Act, R.S.B.C. 1996, c. 412, provides that:

(1)        A board may

(a)        subject to the orders of the minister, open, close or reopen a school permanently or for a specified period of time, and

(b)        temporarily close a school building if the health or safety of the students is endangered.

[51]            Section 168(2)(p) provides that:

(2)        The minister may make orders for the purpose of carrying out any of the minister's powers, duties or functions under this Act and, without restriction, may make orders

...

(p)        respecting the opening and closing of schools under section 73(1)(a)...

[52]            On October 24, 2002, the Minister of Education issued an order under this section called the School Opening and Closure Order (320/02).  The order was amended effective September 18, 2007, but the amendments are not germane to the issue at hand.  The order provides in its material parts as follows:

2.         (1)        In this Ministerial Order, closing a school permanently means the closing, for a period exceeding 12 months, of a school building used for purposes of providing an educational program to students.

(2)        Despite subsection (1), the closing of a school for the purposes of effecting repairs, renovations or additions to a school building shall not be deemed to be a permanent closure of the school if the Board intends to reopen the building upon completion of the repairs, renovations or additions.

[53]            Section 3 of the order provides that school boards must develop and implement a policy that includes a public consultation process when considering “permanent school closures”.  Further, if a board decides to permanently close a school, it may do so only by bylaw.  The Board of School District No. 67 developed such a policy in response to this order.  The policy was adopted on September 8, 2003, and it provides for a reasonably elaborate public consultation process.

[54]            One further statutory provision needs to be considered before turning to an analysis of the issue.  The relevant portions of the term “school” as defined in s. 1 of the School Act to are:

(a)        a body of students that is organized as a unit for educational purposes under the supervision of a principal, vice principal or director of instruction,

(b)        the teachers and other staff members associated with the unit, and

(c)        the facilities associated with the unit...

[55]            The difficulty with this order is that it speaks of closing a school and closing a school building as if the two are synonymous.  Section 73 of the Act speaks of the Board “permanently closing” a “school”.  It does not make reference to the closing of a school building.

[56]            The petitioners contend that the closing of the auditorium and the north gym amount to closing school buildings notwithstanding the fact that they are being replaced.  They argue that as a result that the policy mandated by the order is engaged and that it was not followed.  The Board argues that the intention of the order and the Act is to address the closing of an entire school, that is, the closing of the school as defined by the Act, including closing the building or buildings housing the school and transferring the teaching and other staff and the students elsewhere.  The Board took this position from the outset.  It has not complied with the public consultation process mandated when it is considering closing a school because of that view.  It decided to engage in the public consultation process that it did not because it felt it was obliged to but rather because it recognized that the decisions it was contemplating would have broad implications for the school and the larger community, and it wanted to take those considerations into account in its decision making process.

[57]            No issue would arise in this regard if s. 2 of the order simply ended after the second time the word “school” appears.  It is not clear to me why the Minister saw fit to add the words “building used for purposes of providing an educational program to students” or what the words add to the order.  The definition of “school” in the Act seems to me to render this last phrase redundant.  That aside, I am not persuaded that the petitioners position is sustainable for two reasons.

[58]            The first is that, in two respects, it would lead to an absurdity.  When an ambiguity arises in relation to an Act, or in this case a ministerial order, and on one possible meaning the result accords with common sense and the other gives rise to an absurdity, the former is to be adopted (see generally Dreidger On the Construction of Statutes, 3rd ed., at pp. 84-85).  If the petitioners’ position is correct then, any time a school added a portable classroom to accommodate a temporary spike in enrolment which then subsided, rendering the portable unnecessary, and the Board decided to remove it, the policy would be engaged and an expensive and time consuming process would be required to discernible benefit to anyone.  Further, if the order means that only the closing of a school building is necessary to engage the process contemplated by the order, then a board would be able to transfer all the teachers and other staff and the students but leave the building itself open and the consultation process would not be engaged, and yet this is precisely the kind of situation in which the process is needed.

[59]            Second, in my view, the purpose of the order and the policy that it requires a boards to develop is to ensure there is appropriate public consultation when a school is closed permanently with the result that students are no longer taught at the location where they would have otherwise received instruction.  The permanent closing of a school, in this sense, can have a significant impact on students and their families.  Those consequences were eloquently expressed by Oland J.A. in Potter v. Halifax Regional School Board, [2002] N.S.J. No. 297 (C.A.), at para. 50 as follows:

The education, development, and safety of their children are of critical importance to parents.  Parents know with bone-deep certainty that the schools their child attends will shape him or her in many ways.  Many chose their child's schools with care and make major decisions around those choices.  A school's programs, its facilities and their condition, its teachers and other staff, its class sizes, its distance from home, and its sense of community are but some of the factors that will influence a child's learning and personal development, and often even the day to day routine of that child's family.  The closure of a school means reassignment of its students to another or other schools which will likely be disruptive in many ways and require adjustment.  When such circumstances are considered, it cannot be doubted that parents have an interest which is seriously affected by a decision by the Board to close the school their child is attending.

[60]            When a school is redeveloped, as is contemplated by the Board in the matter at hand, none of these concerns arise.  To the contrary, most parents would welcome the construction of a new schoolhouse when the existing one is at or beyond its useful life.  This is likely one of the reasons why none of the parents or staff members of Penticton Secondary School have joined in this application.  I pause here to note that in the foregoing passage of Oland J.A. has provided a succinct and suitable definition of “school closure” to which consideration might usefully be given.

[61]            Further, the Act defines a school as consisting of three features:  students, teachers and facilities.  All are necessary to constitute a school.  If any of them are permanently removed, what remains is not a school.  The order requires boards to develop a policy that includes public consultation when “permanent school closures” are being considered.  In the matter at hand, there will be no period, never mind a period that exceeds 12 months, when all three constituent elements of a school will not be present at the Penticton Secondary School site.

[62]            In the result, I am not satisfied that the Ministerial Order was engaged in relation to the Board’s decision to redevelop the school, and therefore the Board was not required to follow the process which applies when a school is being closed.

Procedural Fairness at Common Law

[63]            The petitioners advance an alternative argument in relation to the Board’s decision making process.  They argue that, as a matter of common law, the Board is required to afford the public a measure of procedural fairness.  This, they argue, the Board did not do.  In particular, they point to the fact that the petitioners were permitted, or invited, to address the Board at a meeting of April 14, 2008.  Having invited them, the petitioners argue, the Board was required to listen to them with an open mind, something they assert the Board did not do.  In support of that conclusion, they point to the fact that at the meeting some Board members responded to their submissions by reading from prepared texts.  In fact, one trustee who was not at the meeting sent in his response which was, I gather, read into the record.

[64]            The Board makes several points in response to factual basis of this argument.  First, it notes that the petitioners were not invited to the meeting in the sense that the Board initiated their attendance.  Rather, the petitioners sought an audience and the Board acceded to their request.  They were there, in effect, at their own invitation.  Further, the Board notes that the petitioners’ presentation, or most of it, was provided to the Board in advance of the meeting, and the trustees had an opportunity to review and consider it.  They did that and fashioned their response to it largely on that basis.  At the meeting, the presentation was largely tracts of the materials that had been provided in advance and thus the response was truly responsive, although it may not have appeared so to those in attendance.

[65]            As to the legal issue raised, the Board argues that no duty of procedural fairness was owed to the petitioners, but if it was, the Board complied with that obligation.

[66]            The content of the common law duty of fairness, when it exists, varies with the context in which it arises.

[67]            I will assume for purposes of this issue that the Board owed a duty of procedural fairness to the petitioners in relation to its decision to demolish the gym and the auditorium.  I recognize that the Board takes a different view on this issue but because of the conclusion I have come to, and will explain in what follows, I have simply assumed that such a duty exists.

[68]            The fact that a duty of fairness as a matter of common law exists does not determine the content of that duty.  As L’Heureux-Dubé J. put it in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 21 “[t]he existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances”.  Rather, the content of the duty is determined by reference to the context in which the decision in issue was made.  The factors to be considered in that regard are the nature of the decision and the process followed by the decision maker; the nature of the statutory scheme pursuant to which it was made and within which the decision maker operates; the importance of the decision to those affected by it; the legitimate expectations of those challenging the decision; and, in what is something of a duplication of the first matter, the procedural choices made by the decision maker.  The purpose underlying all of these factors is, as L’Heureux-Dubé observed at para. 22:

...to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[69]            As to the first factor, the more the decision in issue resembles a judicial decision, the greater the duty of fairness.  Nothing about the decision at issue in the matter at hand resembles a judicial decision.  To the contrary, it is perhaps best characterized as an operational decision made by a body with a legislative obligation to serve the students that it exists to serve.  The second factor involves a consideration of the statutory scheme.  Boards of Education are elected bodies operating under comprehensive legislation which includes not only the Act but the Ministerial Orders issued under it.  I note that following the decision of November 2004, the Board has been exposed to the electorate on two occasions.  The Board consists of seven trustees.  Four of them were re-elected twice following the November 2004 decision.  Two of the trustees who assumed office with the 2005 election were re-elected in 2007.  The seventh member of the Board was Ms. Jamieson.  She was re-elected in 2005 but died during her term.

[70]            As to the importance of the decision to those affected by it, I note simply that none of those most significantly affected, that is, the students and staff, are among the petitioners’ number.  The petitioners are concerned citizens, who for obviously genuine and deeply held reasons, oppose the Board’s decision.  The honesty of their belief and the strength with which they hold it, however, does not by itself affect the degree to which the decision in issue affects them.  They are not particularly affected by the decision in the sense the notion is understood in this context.

[71]            Based on the foregoing, I consider that the duty of fairness owed, assuming it arises in this case, was minimal.  It extended to keeping the process as open as possible, to keeping the public generally informed, and listening to any concerns raised within the confines of the Board’s own processes.

[72]            The issue is whether the Board, in proceeding as it did, afforded this level of procedural fairness to the petitioners.

[73]            I note, firstly, that the Board meetings at which the issue of the redevelopment of the school was considered were all open to the public.  The minutes of the meetings are posted on the Board’s website which is accessible by anyone who cares to visit the site.  Early in the process, in fact, in August 2003, the Board struck a committee, the Penticton Secondary School Reconstruction Committee, whose membership I have already noted.  The committee was charged initially with reviewing a wide range of options for the school.  It did that and narrowed the realistically available options to four.  On April 23, 2004, it held a public forum.  The forum was publicized on the Board’s website and otherwise.  The notice of the forum included the design drawings of the four options under consideration.  The public attended and asked questions of the officials and voiced a variety of opinions about the project.  Those opinions were tabulated and considered by the committee.  Some who attended wrote to the editors of the local newspapers and those letters were published.  Some wrote directly to the Board, and their letters were considered at subsequent Board meetings.  The committee decided that Option C was the best option and made that recommendation to the Board.  Before making its decision, the Board held a number of meetings with those affected by the decision, and one of those was a community consultation which was held on November 1, 2002.  It, too, was widely publicized and that publicity resulted in about 100 members of the public attending.  Members of the local media also attended.  The details of the option were explained by the officials of the school district.  Those in attendance were given an opportunity to comment on the option, and about 16 of them took up that opportunity.  Their comments were recorded by Mr. Regehr.  The meeting was reported on in the local paper two days later.  Following this meeting, the Board made its decision on November 8, 2004.

[74]            Evidence that community concerns were listened to by the Board is perhaps most clearly illustrated by two facts.  When concerns were raised about the two buildings that the public was most interested in retaining, the Shatford and Ellis buildings, the Board made efforts to include them in its plan.  They were successful in that regard and eventually entered into an agreement with the City which saw them preserved.  The second most serious concern gleaned from the consultation process was the desire to retain the auditorium.  The Board listened and modified Option C to include the possibility that it might also be part of the eventual redevelopment.  It decided that the auditorium would be retained, or might be retained, if a third party came forward with a viable business plan which would allow that to happen.  That plan had to include assuming financial responsibility for the building.  It allowed a long window of opportunity for that to happen, a window that eventually extended some two and a half years.  The City was the most likely third party to assume that responsibility.  It was the Board who initiated most of the discussion with the City, and it was the Board who reminded the City as the deadline approached that it was approaching and that they needed to make a decision.  When the City requested an extension, the Board agreed.  All of this took place against a backdrop of significant media publicity which reported on the process as it took place.  In addition, the Board kept the school informed, that is, the students, teachers and parents through regular news bulletins.

[75]            After the decision was made to proceed with Option C, the Board continued to meet.  The S.O.N.G. group formed in early 2007 had sought and was granted an audience with the Board at its meeting of May 14, 2007.  This was some two and a half years after the decision to adopt a plan which did not include retention of the gym had been made.  Nevertheless, the Board granted the group an opportunity to be heard.  The Board was not persuaded by the group’s presentation.  That does not mean it did not listen.  It did listen.  In fact, Mr. Little the chairperson of the Board took the trouble to write to Mr. Mason on July 3, 2007.  In that letter, he explained why the Board was proceeding as it was.  The primary focus of the S.O.N.G. group’s presentation was the need for gym space for the community.  The Board reviewed gym usage throughout its facilities and prepared a chart showing that usage.  Mr. Little sent that chart to Mr. Mason in his letter.

[76]            In early 2008, the P.L.E.A.S.E. group was formed.  It, too, sought an audience with the Board.  This was over three years after the decision to proceed with Option C had been made and about nine months after the two-and-a-half-year window of opportunity for those interested in assuming responsibility for the auditorium had closed.  Given the factors that influence the content of the common law duty of fairness, and given the point at which this group sought an audience, I would not conclude that the duty required the Board to grant an audience to this group when it came forward.  The Board, however, elected to do so.  It asked for the group’s presentation in advance of the meeting and that was provided.  It tracked many of the submissions that the S.O.N.G. group had made the year before.  The Board heard the submissions and responded to them.  The submissions did not include any concrete proposal for financing the retention of either building.  The Board, as it had made it plain on many occasions in the previous years, was simply not interested in entertaining a proposal without such a commitment, and it was not persuaded to alter its chosen course of action.  The members of the group have deposed that the Board’s response to their submission was scripted, and from this, they have concluded that the Board prejudged the matter.  One of the petitioners went so far as to describe the process as a charade.  I do not agree with that characterization, and while I can understand the general reaction, I do not entirely agree with it either.  The Board’s response was made, in part, and perhaps to a large extent, based on its review of the presentation which was provided in advance.  Nothing that was added to the oral presentation changed the Board’s position.  That which was added, and is pointed to by the petitioners in support of their position, was reference to the problem of obesity among young people and the results of a petition the group had commissioned and which showed that the vast majority of those that chose to respond favoured retention of the auditorium.  Although the petition is described as a “Public Opinion Poll”, it is really nothing of the sort.  It simply asked those who chose to sign it to indicate whether they favoured the retention of the gym and the auditorium.  It said nothing about whether they wished to retain it if it meant their taxes would increase or if they were otherwise responsible to pay for the retention.  While the effort was no doubt well intended, its results are really of little value to the real decision that the group hoped to influence, namely, the financial responsibility for the building.  I am not persuaded that the Board did not listen, even assuming it was obliged to.

The Discretion to Refuse the Relief Sought

[77]            This application is governed by the Judicial Review Procedure Act.  Section 8(1) of that Act continues the discretion that the court had to refuse to grant relief which existed prior to February 1, 1977.  Delay was a basis upon which to refuse prerogative writ relief prior to February 1, 1977.  The analysis to be undertaken in determining whether to exercise this discretion was explained in Turnagain Holdings Ltd. v. British Columbia (Environmental Appeal Board), [2002] B.C.J. No. 2391 (C.A.).  There the court adopted the approach applied by McLachlin J.A. (as she then was) in Carpenter v. Vancouver (City) Police Board (1986), 9 B.C.L.R. (2d) 99 (C.A.).  That approach was described by Rowles J.A. in Turnagain at para. 18 as follows:

...The first step is to determine whether the petitioner's delay is unreasonable.  A funding [sic] of unreasonable delay permits the court to refuse a remedy under the Judicial Review Procedure Act.  At this step, the inquiry focuses on the petitioner's conduct and the reasons for the delay.  At the second step, the judge must consider whether the delay resulted in substantial prejudice to the respondent, consider the prejudice to the petitioner if the relief is not granted, the conduct of the respondent, and all other relevant factors.

[78]            Although the petition seeks a review of a decision made on April 14, 2008, as I have already pointed out, no decision was made that day.  The petitioners really seek a review of the Board’s decision not to retain the north gym and the auditorium in its planned reconstruction of the school.  The decision to do that was made categorically in relation to the north gym on November 8, 2004.  It was made tentatively in relation to the auditorium on the same day.  As will be recalled, the plan approved by the Board at that meeting was not to include the auditorium in the reconstruction, unless a third party came forward with a sensible plan to assume the financial cost of retaining that building.  That window closed on November 7, 2006.  The Board, however, extended the deadline to June 1, 2007, at least in relation to the City as a possible entity to assume responsibility for the auditorium.  I will assume for purposes of this issue that the extension applied to all potential third parties who may have assumed responsibility for the building.

[79]            The delay in relation to the north gym is, therefore, approaching four years.  The delay in relation to the auditorium is just over a year.  Whether a delay is unreasonable is a matter to be determined by reference to the context of the decision at issue.  In this case, the decision was made as part of a large construction project for the entire school site.  That construction began in September 2006.  The space now occupied by the gym and auditorium is needed for parking and a safe area for loading and unloading school buses.  As part of the construction project, the remainder of the space is slated for sports courts and green space.  Because the Board was prepared to consider proposals that would allow for the retention of the auditorium until June of 2007, I infer that its plans were flexible enough to accommodate that possibility until at least then.  The fact that the auditorium has not yet been torn down does not mean the Board’s plans continue to have that flexibility.  The building has been retained primarily because it has been used for classroom space during the construction period.  It is no longer needed for that purpose, or at least will not be once the 2008/2009 school year begins.  In fact, the Board has already advertised for bids on the demolition.  The gym has never been part of the Board’s plans.

[80]            I turn now to the petitioners’ explanation for the delay.  In relation to the north gym, at least Mr. Shunter and Mr. Lindstrom knew that the gym was going to be demolished in November 2004.  They were trustees and voted in favour of that course of action.  Mr. Perry was the mayor of the City of Penticton until the November 2005 election.  In his affidavit, he has deposed that he intended to raise the retention of the gym as an issue in his campaign for a second term as mayor.  He was unsuccessful in his bid for re-election.  He has deposed that he knew in November 2005 that the gym was slated for demolition as part of the Board’s plans.  He has not offered any explanation as to why he waited until June 2008 to bring this proceeding in relation to the gym, other than that he was confident that the City and the Board would reach a shared use and maintenance agreement.

[81]            Dr. Siddon has deposed that he understood that the Board resolved to proceed with plans for the redevelopment of the school in November 2004.  He has deposed that in May 2007 S.O.N.G. made a presentation to the Board to save the gym and that it was turned down.  He knew at least by then that the gym was going to be torn down if the Board had its way.  In December 2007, he attended a concert at that auditorium which reinforced his view as to the value of the auditorium.  It was this pivotal experience that led him, and others, to form P.L.E.A.S.E.  He and the others in P.L.E.A.S.E. began to lobby the Board and the City in an effort to stave off demolition.  They were unsuccessful, and when that became apparent following the Board meeting in April 2008, they presumably began to prepare for this application.

[82]            Dr. Congram’s affidavit simply sets out the efforts of by the interest groups.  She quite frankly deposes that she “never thought that the School District would decide to demolish” the buildings.  She has deposed that she “expected the City would come forward with a viable plan to use” the buildings.

[83]            Ms. Barnay, Ms. Rheaume, Mr. Kenyon, Ms. Morrison, Mr. Brydon, nor Ms. Campbell offers any specific explanation for why they waited until the eleventh hour to bring this application.

[84]            That said, from the affidavit material, it is apparent that there were two reasons for not making this application until now.  The first is that there was, at least on the part of some, confusion about the Board’s plans, confusion borne of the phased nature of the project.  Second, while all realized that the buildings were slated for demolition, they all hoped, as Dr. Congram frankly acknowledged, that the City would step in and assume responsibility for the buildings.

[85]            With respect to the gym, I am of the view that it ought to have been apparent to any reasonable person that a decision to demolish it was made in November 2004.  That decision was not contingent on anything; it was a final decision which the Board intended to proceed with unless forced not to.

[86]            As to the auditorium, the situation is different.  It was not until June 2007 that the deadline set by the Board for proposals from third parties expired.  It is not unreasonable for those who opposed the decision to exhaust all other courses of action before bringing a proceeding such as this.  They organized and explored those other options with some dispatch.  It was not until they were turned down in their last ditched effort in April 2008 that the matter became ripe for an application of this kind.  I am not persuaded that the delay in relation to that aspect of the petition that relates to the auditorium is unreasonable, and thus it is unnecessary to consider the second aspect of the test as it relates to that building.

[87]            It is, however, necessary to consider the second aspect of the test in relation to the gym because I consider the delay has been unreasonable.  The second step involves an assessment of whether the delay has resulted in substantial prejudice to the respondent and a consideration of the prejudice to the petitioner if the relief is not granted, together with an examination of the conduct of the respondent, and all other relevant factors.  The prejudice to the Board is significant.  They have built another gym.  When it opens in September, the Board will have no use for the old gym, but they will have a use for the space that it occupies.  As to the prejudice to the petitioners, to the extent it exists, it pales into insignificance when pitted against the prejudice to the Board.  There is nothing in the conduct of the Board, nor are there any other factors that counsel pointed to in argument that are relevant to this analysis.  In the result, I would, had the matter fallen to be resolved on the basis of whether the relief should, as a matter of judicial discretion, be granted, have declined to grant it in relation to the gym.

[88]            I would not have come to a similar conclusion with respect to the auditorium.

Conclusion

[89]            In summary, I find that the petitioners do not have standing to bring this application.  That finding is sufficient to dispose of the matter.  Because I recognize the importance of this issue to the petitioners, I have dealt with the substantive arguments they have advanced.  I have concluded that, even if they had standing, the merits of the matter require that it be dismissed and it is.

[90]            The role of the court in matters of this kind was well described by Campbell J. on behalf of the Ontario Divisional Court in Ross v. Avon Maitland District School Board, [2000] O. J. No. 5680. That case involved a school closure, but the observations are apt to the matter at hand.  There at para. 2 he said:

It is not within our power to second guess the financial and political decisions of elected officials who act within their legal jurisdiction.  The merits of the Seaforth school closing, the rightness or the wrongness of these decisions are issues of community concern, finance and politics beyond the limited reach of this unelected court.  It is not for the court to say whether the decision to close the school is right or wrong.  The narrow mandate of the court is to inquire whether the school closing is authorized by law, whether there was adequate public consultation as required by law, and whether the decision is taken through a process that is procedurally fair.

[91]            There is no doubt that the Board had the authority to proceed as it did.  To the extent that it was required as a matter of common law to consult with the community, a proposition that is not free from doubt, it did that and did that in a manner that was procedurally fair.  It may not have been perfect, but that is not what the law requires.  Accordingly, the petition must be dismissed.

[92]            If the parties are unable to agree on the question of costs, the issue will be decided in accordance with the following procedure.  The respondent will have until August 31, 2008, to prepare and deliver its written submissions to the petitioners.  The petitioners will have until September 30, 2008, to respond in writing.  Both submissions are to be filed with the court by October 15, 2008, and I will thereafter render my decision.

“G.M. Barrow, J.”
The Honourable Mr. Justice Barrow