Law Times

Page 6 December 3, 2012 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Hackland and the rule of law I f there's one thing we all value, it's the rule of law. That's why Superior Court Justice Charles Hackland's nowfamous ruling in Toronto Mayor Rob Ford's conflict of interest case was so refreshing. While there was an assumption among many that Hackland wouldn't go as far as tossing Ford from office, the judge bravely underscored the notion that the law applies equally to everyone when he rejected Ford's defence as one "based essentially on a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the integrity commissioner and the code of conduct." It was gratifying to see a judge call out Ford, who comes from a rich Etobicoke family and seems to believe that rules he doesn't agree with don't apply to him, for his stubborn stance that helping kids through his football foundation justifies almost any action no matter how wrong it may be. In parsing the law on conflicts of interest, Hackland rightly noted Ford's essential breach of the rules was a minor and technical one given the small amount of money he was on the hook for paying for improperly soliciting donations to his football foundation. But as Hackland pointed out, Ford should have known better. Toronto council's former speaker had earlier warned Ford about a conflict in relation to the integrity commissioner's findings and Ford himself had previously declined to vote on matters after citing a conflict of interest. Moreover, Hackland noted Ford had neglected to seek advice on the issue that has gotten him into so much trouble. As a result, Hackland found Ford had failed to show his contraventions of the Municipal Conflict of Interest Act were the result of a goodfaith error in judgment. "Outright ignorance of the law will not suffice, nor will wilful blindness as to one's obligations," he wrote. It was a balanced ruling that demonstrated the judge was free from political concerns or interference. Hackland correctly noted, for example, that there may be some merit in considering reform of the act, particularly given Ford's defence that he should have been able to defend himself from the integrity commissioner's findings against him without being in violation of the law. But while that raises important concerns about procedural fairness, Hackland clearly applied the law as it currently is and held Ford to account for breaking it. That's as it should be. Hackland's remedy was obviously drastic. While some people may not like it, that's what the law requires even when the respondent is a wealthy and powerful politician. It's refreshing to see judges like Hackland state that so eloquently and in an even-handed manner. — Glenn Kauth Courts should be able to review private school expulsions BY J. PAUL R. HOWARD L ast month in Moore v. British Columbia (Education), the Supreme Court of Canada said that all children are entitled to an education "because a healthy democracy and economy require their educated contribution." The case involved a student with dyslexia whom the top court determined had been discriminated against by a school board in British Columbia. The court's endorsement was reminiscent of the U.S. Supreme Court's decision more than a half-century ago in Brown v. Board of Education, a case in which it said "education is perhaps the most important function" of governments and "the very foundation of good citizenship." But surely this remains true for all children, regardless of abilities, personal characteristics or origins. It should also include those in private schools. However, that point seems to be missing from the Ontario Superior Court of Justice's recent decision in W.W. v. Lakefield College School. In that case, it ruled that a private school's decision to expel two students was immune from judicial review. Lakefield has a zero-tolerance policy regarding illicit drug use on campus. Its policy is that students caught using or possessing illegal drugs on school property "will be expelled from the school." There's no progressive discipline for such infractions, nor room for discretion on Law Times review under paragraph 1 of s. 2(1) of the Judicial Review Procedure Act. Indeed, the court in Lakefield gave no consideration to paragraph 1 at all, nor did it quote from or even refer to s. 2(1) of the act. Lakefield's expulsion decision should have been subject to judicial review because the students were essentially seeking an order in the nature of certiorari under paragraph 1 of s. 2(1) of the act. Over the years, the remedy of certiorari has been used to challenge the expulsion of members from clubs, trade unions, and other bodies not generally considered to be public. The court here should have considered whether, in the modern context, private schools exercising expulsion powers are akin to administrative decision-makers whose decisions can have a drastic impact on individual lives. Remembering the ringing words of Brown v. Board of Education, we must recognize that the state has, through legislation, delegated the centrally important government function of education to both public and private schools. Decisions of such bodies that interfere with a student's right to education and are made without procedural fairness shouldn't be beyond the reach of the courts. LT u SPEAKER'S CORNER For Law Times the part of school administrators to modify or temper the punishment. Last year, two Grade 12 students at Lakefield, both 17, were caught smoking marijuana in their residence and expelled. There was no hearing before the school's board of directors, nor did the students' families participate in any way at the board's meeting that took place by conference call. The students went to court to seek an order reinstating them, but their application for judicial review was dismissed. The Ontario Superior Court of Justice said it has no jurisdiction to judicially review the expulsion decision since Lakefield is a private school and wasn't exercising a "statutory power of decision." The court recognized that these expulsions had a drastic impact on the students, who both have learning disabilities and who "benefited greatly from Lakefield's renowned services in the areas of their exceptionalities." In Ontario, the authority to commence an application for judicial review is governed by s. 2(1) of the Judicial Review Procedure Act. It makes judicial review available in respect of a "statutory power of decision" but also in respect of any "proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari." Courts often forget about the availability of judicial Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Copy Editor . . . . . . . . . . . . . . . . . . . . . . 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Howard is managing partner at Shibley Righton LLP in Windsor, Ont. His litigation practice covers education, administrative, human rights, employment, and labour law matters. He can be reached at paul.howard@ shibleyrighton.com. Law Times is printed on newsprint containing 25-30 per cent postconsumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. 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