The application by a group of students for an injunction pending the hearing of their application for judicial review of a decision of the respondent District School Board of Niagara (the “Board”) to close the Niagara District Secondary School (“NDSS”) was dismissed where the Court found that the delay in bringing the injunction application was too great and this was not a strong case where an injunction would be rightly granted

Administrative law – Decisions of administrative tribunals – School boards – Schools and School boards – Closures – Judicial review – Delay – Remedies – Injunctions – Test

Friends of Niagara District Secondary School v. Niagara District School Board, [2010] O.J. No. 3932, 2010 ONSC 4756, Ontario Superior Court of Justice, September 9, 2010, L.K. Ferrier J.

In June 17, 2008, the Board decided to close NDSS. The students sought to have the matter reconsidered several times over a number of months but their position was defeated soundly in Board votes.

Ultimately, their injunction application was argued a mere seven days before the decision of the Board was to take effect. All steps had been taken by the administration to carry out the Board’s wishes and the school had effectively been closed since June 30, 2010. The Court found that the delay of almost two years in bringing the application for the injunction was sufficient reason to dismiss the motion. The Court noted that it is well settled law that the doctrine of laches will defeat an equitable claim: Louie v. Lastman, [2002] O.J. No. 3522 (C.A.).

The students acknowledged that there was no issue of procedural fairness in the process undertaken by the Board. The Court agreed noting that the Board had fulfilled its responsibilities to the community to the full and the process had been scrupulously fair. The Court then went on to consider the 3-part test for an injunction in RJR MacDonald Inc. v. Canada (Attorney General) [1994] S.C.J. No. 17:

1. Serious question to be tried – the applicant must demonstrate a strong prima facie case. In this case, the Board’s decision was not a quasi judicial one but was plainly administrative. In the Court’s view, it was unlikely that the students would be able to satisfy the first branch of the test as it was unlikely that a court when faced with a “final” ruling and a resolution of the Board on an administrative decision would intervene, particularly where meticulous procedural fairness had been executed.
2. Irreparable harm – the Court found that the application for judicial review could be heard within the next two months. The school site remained intact with no plans to dispose of it and, consequently, if the students succeeded in a later application, no irreparable harm had been suffered.
3. Balance of Convenience – the Court noted that the Board had gone through a lengthy and complex arrangement with respect to the closing of the school. All arrangements had been completed and the school was effectively closed. The motion was launched after all of these arrangements were in place. In the circumstances, the Court determined that the balance of convenience favoured the Board.

After reviewing the 3-part test, the Court was of the view that the students had not met the requirements for an injunction. The motion was dismissed with costs.

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