A Schooling on the Scope of Judicial Review

The applicant in Setia v. Appleby College, 2013 ONCA 753 was expelled from a private school for smoking pot.

The school had a Code of Conduct which provides that smoking or drug possession may result in expulsion and a Lighting of Substances policy which provides for automatic expulsion. The Code also provided, however, for procedural protections, including a right to make submissions as to the appropriate sanction. No such opportunity was given to the applicant. For this reason, the Divisional Court quashed the expulsion decision: 2012 ONSC 536.

But there was an important jurisdictional issue. The school is private. The Code and the policy are essentially contractual documents. On what basis could the school's failure to give the applicant a chance to make his case be questioned on judicial review?

The Divisional Court's answer was that the school had been established by a private act of the Ontario legislature which provided amongst other things that "the Board may confer upon the officers and persons employed in connection with its undertakings such powers of administration and discipline as it may think necessary". The school was thus exercising a "statutory power of decision" under the Judicial Review Procedure Act (the province's judicial review 'code').

The Court of Appeal doubted that there was a "statutory power of decision" (at para. 27) but found it unnecessary to resolve the question, for the Divisional Court's analysis was incomplete. Remedies "in the nature of mandamus, prohibition and certiorari" (s. 2(1)1) can only be sought in respect of (ahem) administrative law matters:

[32]       In my view the jurisdiction to make an order for judicial review quashing the expulsion decision does not depend on whether the decision is the exercise of a statutory power of decision.  Rather, the jurisdiction provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied...

Public law remedies will only issue against exercises of power that have the necessary quality of 'publicness'. A body can be private and yet exercise a public power subject to judicial review. Or, as in this case, a body can be public and yet exercise a private power that is not susceptible to judicial oversight.

Drawing on the analysis of Stratas J.A. in Air Canada v. Toronto Port Authority, 2011 FCA 347 Goudge J.A. went on to identify four reasons why the expulsion decision was a private matter and hence lacking the 'publicness' of a decision in respect of which a judicial review remedy could be granted.

First, while the statutory basis of its existence gave the school's decision a "public favour" (at para. 36) and the expulsion decision "may to some extent, be connected to Appleby’s educational role", ultimately "it is not regulated by the Education Act, but rather by the contract between parents and the school" (at para. 37).

Second, "[i]ts actions can hardly be seen as being directed, or significantly influenced, by government, or performing a service at the behest of government" (at para. 38). Third, the decision "could affect only the students who choose to attend Appleby" and was "not of broader import to members of the public" (at para. 39).

Fourth:

[40]       The final, and in some ways the most important, consideration is the extent to which the expulsion decision is shaped by private law rather than public law.  That decision is sourced in the private legislation of the Appleby Act, but only in the sense that the Act establishes the Board of Governors and gives it the discretion to confer on its Head of School the powers of discipline it thinks necessary.  However, the criteria upon which the expulsion decision is made are provided by the private law of the contract between Gautam’s parents and Appleby.  Although the Setias seek to use public law to impose procedural obligations on Appleby in making that decision, Appleby acknowledges that the Setias are protected in this regard by their contract.  The analogy with Dunsmuir, suggests that in these circumstances, the Setias’ remedy should be in private law, not in public law.

It is the last point on which I want to focus. There is much to commend the Supreme Court of Canada's position in Dunsmuir that where a relationship is regulated by contract law, administrative law remedies should generally not be available.

And yet it seems rather unfair to say to an applicant whose contractual rights have been breached (as was the case here) by a classic breach of the principles of administrative law that public remedies are absolutely not available. Would it do great violence to judicial review doctrine if courts were to inquire into the effectiveness of the contractual remedies available? Here, the mere possibility of contractual recourse was invoked to deny a remedy to the applicant for an obvious breach of procedural fairness.

This argument is, however, ruled out by Goudge J.A.'s approach here. If 'publicness' is treated as a threshold matter, then that is the end of the case; on Goudge J.A.'s approach the "public" nature of the decision is a condition precedent to the exercise of the courts' supervisory function. If the relationship is governed by private law (no matter how ineffective) then judicial review is unavailable. This approach, it must be emphasized, is based on a reading of the text of the JRPA.

(Alternatively -- and this is enough of a stretch that I feel compelled to put it in parentheses! -- the absence of 'publicness' could be treated as a reason for the reviewing court not to exercise its discretion to grant a remedy (s. 2(5) of the JRPA). It would then be entirely reasonable to look at the availability and effectiveness of contractual remedies. If these remedies were available and effective, a reviewing court would decline to exercise its discretion; but if not, a decision breaching the principles of administrative law would be quashed.)

Beyond this, the instant case is not straightforward. An expulsion decision pursuant to a Code of Conduct and based in part on conduct contrary to the general law is much closer in my view to a 'public' decision than the sort of private, commercial arrangement (like changes to, for example, the fees charged by the school) with which judicial review is not concerned. It could quite easily have come out the other way.