The Divisional Court of Ontario permitted an application for judicial review by a student who had been expelled by the headmaster of a private school for smoking marijuana. The Court of Appeal held that such a decision was not within the jurisdiction of the court to review for two reasons: one, the nexus between the school’s enabling Act and the expulsion decision was not specific enough to make the decision an exercise of statutory power; and two, even if there was a nexus, the decision could not be reviewed by public law or subject to a public law remedy because the decision maker was a private school created by private statute, and its disciplinary decisions are regulated by contracts between the school and the students’ parents.

Administrative law – Decisions of administrative tribunals – School boards – Powers and duties – Statutory provisions – Schools – Students – Code of conduct – Expulsion of students – Judicial review – Jurisdiction – Compliance with legislation

Setia v. Appleby College, [2013] O.J. No. 5736, 2013 ONCA 753, Ontario Court of Appeal, December 13, 2013, S.T. Goudge, D. Watt and S.E. Pepall JJ.A.

A student was caught, and admitted to, smoking marijuana in a campus dorm. The school’s Code of Conduct provided that smoking on school property, or possessing illegal drugs, may result in expulsion. The school also had a separate policy that provided that students found smoking would be expelled. The student’s parents had signed a form acknowledging that their son’s attendance at the school was dependent upon compliance with the Code and other rules. The Head of the School expelled the student without prior notice to the parents. The student and his parents applied for judicial review of that decision and the Divisional Court allowed the application since, in its view, the school was created by provincial legislation and  thus a decision by its officer concerning administration and discipline was an exercise of statutory power and subject to review.  It said the school failed to follow its own policy when it did not provide the parents with an opportunity to make submissions with respect to the appropriate sanction for the student considering that the Code did not demand expulsion like the other policy did.

The school appealed the Divisional Court’s decision on the basis that it lacked jurisdiction because the Head of the School’s decision to expel the student did not constitute an exercise of statutory power for the purposes of the Judicial Review Procedure Act. The Court of Appeal allowed the appeal and held that it was doubtful that the Head of the School’s decision constituted an exercise of statutory power. The nexus between the enabling Act of the school and the expulsion decision was not specific enough to make the latter a statutory power decision. Even if the expulsion constituted an exercise of statutory power, it was not a decision that could be reviewed by public law, or to which a public law remedy could be applied, because the decision maker was a private school created by private statute and its decision concerning the discipline of a student was regulated by a contract between it and the student’s parents.

This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review  her biography at http://www.harpergrey.com.

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