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Judicial Review - Non-Statutory Powers

. Gillies v Bluewater District School Board

In Gillies v Bluewater District School Board (Div Court, 2023) the Divisional Court considered whether 'reasons for decision' were required at all when a school board declined to allow an oral presentation by anti-transexual advocates (here, emails were sent citing the school board human rights and Charter duties to be inclusive):

[25] Bluewater District School Board is a public school board enacted under section 58.1 of the Education Act. Section 169.1 of that Act creates a duty on every such school board to “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any … sex, sexual orientation, gender identity, gender expression …”, and to develop and maintain policies to promote that goal. The Board also passed its own “Human Rights Policy”, stating its commitment to meeting its human rights obligations under the Charter and the Ontario Human Rights Code, and creating an environment free from discrimination.

[26] In determining whether the Board’s reasons were sufficient, it is appropriate to ask whether reasons were required at all in this situation. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Wagner C.J.C. said the following, at para. 77:

It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 (S.C.C.) , at p. 682; Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817(S.C.C.) , at paras. 22-23; Moreau-Bérubé, at paras. 74-75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des Témoins de Jéhovah de St-Jérôme-Lafontaine c. Lafontaine (Municipalité), 2004 SCC 48, [2004] 2 S.C.R. 650 (S.C.C.), at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.

[27] As already noted, Emery J. ruled that the decision in question was not the exercise of a statutory power of decision, but was instead an administrative decision made outside the by-laws. It was made by the Executive Committee and conveyed to the applicant by Ms. Sims.

[28] Section 6 of the bylaws provide for the appearance of delegations before the Board, such as the one the applicant proposed to make. The delegation is required to make a formal request, and provide specified information. A maximum of 20 minutes is provided for delegations, with each delegation to be allotted a maximum of 10 minutes. Significantly, a delegation has no right to make a presentation nor does the Board have an obligation to approve any particular application. Furthermore, the by-laws contain no requirement to provide written reasons for scheduling or refusing to schedule any delegation.

[29] There is no indication that an adverse decision would have a significant impact on the applicant. It is also noteworthy that the applicant had previously been afforded the opportunity to make the same presentation one year earlier, and did so. This greatly diminishes the importance of the issue to the applicant, since her wish to be publicly heard on this issue had already been satisfied. In view of that, coupled with the fact that the applicant had no participatory rights, this is a situation in which, in my view, no reasons were required to be given.

[30] Ultimately nothing turns on this conclusion since reasons were, in fact, delivered to the applicant. However, the extent of those reasons and the depth of detail that those reasons must contain in order to be “sufficient” is, in my view, coloured by the fact that reasons were not required in the first place.

[31] At para. 84 of Vavilov, Wagner C.J.C. described the approach that a court must take with respect to reasons that are delivered:

As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.

[32] In determining whether the decision was reasonable, the court asks itself whether the decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov, para. 85.

[33] In paying “respectful attention” to the Board’s reasons, there is no difficulty in understanding the reasoning process that led to the decision that was made. It is clear that to permit the applicant’s proposed presentation to be publicly aired at a Board meeting would run contrary to the laws, by-laws and policies regarding inclusiveness that bind it, and that permission was being denied for that reason.

[34] To understand the rationale for the Board’s decision, it is only necessary to imagine a trans student in attendance in the audience at the Board meeting where the applicant was making the presentation, and hearing it publicly declared that they do not, in fact, exist, but are instead the construct of a “harmful transgender ideology”. How could that meeting possibly be described as being part of a “positive school climate that is inclusive and accepting of all pupils, including pupils of any … sex, sexual orientation, gender identity, [or] gender expression…”?

[35] Suppose a delegation proposed to make a presentation advocating that BIPOC (Black, Indigenous, People of Colour) be taught in classrooms segregated from those where white students are taught. How many words of explanation would need to be expended in order to make it clear that such a presentation is repugnant and racist, and is being rejected on those grounds? The fact situation before this court is no less easily and clearly understood, and the reasons for denying such a presentation are equally self-evident. Nothing beyond what the Board did say is necessary in order to convey the rational chain of analysis that led to the conclusion the Board arrived at, one that is justified in relation to the facts and the legislation, by-laws and policies that constrain the Board.

[36] I conclude that the Board’s reasons are sufficient, and entirely reasonable.