On December 13, 2013, the Ontario Court of Appeal released its decision in Setia v. Appleby College.1 The Court unanimously held that the decision of an Oakville private school to expel one of its students was not subject to judicial review.
Appleby College (“Appleby”) is a co-educational private school in Oakville, Ontario for students from grades seven to twelve. Gautam Setia was a grade twelve student at Appleby when he was found smoking marijuana in the school residence on the night before his final exam. Gautam admitted to smoking marijuana and was expelled the following day by Appleby’s Head of School. Gautam was prohibited from attending graduation ceremonies and was also denied his Appleby College Diploma. He was, however, granted his Ontario Secondary School Diploma which permitted him to apply to university.
Unlike many private schools in Ontario which are incorporated under the Ontario Corporations Act.2 In 1911 Appleby was incorporated by a Special Act of the Ontario legislature (the “Appleby Act”). The Appleby Act granted Appleby’s Board of Directors the power to “confer upon the officers and persons employed in connection with its undertakings such powers of administration and discipline as it may think necessary”.3
When a student is admitted to Appleby, his/her parents sign a contract acknowledging that their child’s continued attendance at Appleby is dependent on the student’s compliance with the Appleby’s Code of Conduct. The Code of Conduct and Appleby’s school policies expressly prohibit smoking on school property and provide that expulsion may be the consequence of such actions.
Application for Judicial Review - Divisional Court
Following Gautam’s expulsion, Gautam and his parents brought an application for judicial review of the expulsion decision. The application was brought under s. 2(1)1 of the Judicial Review Procedure Act 4 (“JRPA”) for an order quashing the expulsion as an exercise of a statutory power of decision conferred by statute.
The Divisional Court was of the view that the expulsion decision was a matter concerning administration and discipline as referred to in the Appleby Act. As a result, the decision was an exercise of a statutory power for the purposes of theJRPA and therefore subject to judicial review. The majority of the Divisional Court also found that Appleby made its decision without providing Gautam and his parents an adequate opportunity to be heard and, as a result, breached its duty of fairness. Based on these findings, the Divisional Court quashed the expulsion decision and referred the matter back to Appleby to determine the appropriate course of action. Appleby appealed.
At the Court of Appeal, Appleby contested the Divisional Court’s jurisdiction to quash the expulsion decision, arguing that the decision does not constitute an exercise of a statutory power of decision for the purposes of the JRPA. Furthermore, in order to engage the remedies afforded by judicial review, Appleby argued that the decision must come within the scope of public law, which requires a broader analysis than merely whether the decision can be sourced in legislation.
First, the Court of Appeal noted that the Divisional Court’s decision turned entirely on the conclusion that the expulsion decision was the exercise of a statutory power of decision. However, the Court of Appeal stated that although it is doubtful that the expulsion decision even qualifies as the exercise of a statutory power of decision, it is not enough that the impugned decision be sourced in a statute. The decision must be made in the exercise of a “statutory power of decision”.5 The Appleby Act authorized the Board of Directors to confer discipline powers as necessary. However, it was the Board and not the legislature that decided the power to expel was necessary. Therefore, the expulsion decision, arguably, effected the will of the Board more than the will of the legislature.6
Second, and more importantly, the Court noted that 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 of the JRPAturns on whether the decision is of the kind that is reached by public law and therefore a decision to which a public law remedy can apply.7
Whether a particular decision is subject to public law and its remedies requires a careful consideration of the circumstances of the particular case.8 On the facts of the Setia case, the Court noted that four factors are particularly relevant.
First, the Court considered the nature and responsibilities of Appleby. Appleby’s incorporating statute, the Appleby Act, is a private statute not part of general law and therefore does not have a broad public effect. Appleby’s expulsion decision, though one of discipline and perhaps connected to Appleby’s educational role, was not regulated by the Education Act,9but rather was governed by the contract between the parents and the school. Thus, neither Appleby’s statutory origin nor its educational mandate provided any significant public character to the expulsion decision.10
Secondly, Appleby has little interaction with other parts of government or statutory schemes. Other than a modest relationship with the Ministry of Education, Appleby can hardly be seen as being directed or significantly influenced by the government.11
Third, the expulsion decision concerned an individual student. The decision was not of a character with broad societal impact. As a result, the decision was more private than public in nature.
Lastly, in considering the extent to which the expulsion decision was shaped by private law rather than public law, the Court noted that although the decision was sourced in the Appleby Act, the criteria on which the decision was made was provided by the contract between Gautam’s parents and Appleby. As a result, the Court held that the remedy sought by Gautam and his parents should be in private law.
What This Decision Means For Ontario Private Schools
The ruling at the Ontario Court of Appeal upholds Gautam Setia’s 2010 expulsion from Appleby and concluded that the enforcement of Appleby’s rule against smoking is “not of broader import to members of the public”. The Court ruled that the decision taken by Appleby was one of discipline of a student. The Court stated that while that decision may to some extent be connected to Appleby’s educational role, it is not regulated by the Education Act, but rather by the contract between the parents and the school.
The Setia decision sets a welcome precedent for all Ontario private schools enacted by statute. Disciplinary decisions, such as expulsions, will not be subjected to judicial review, but rather will be governed by the terms of the contract between the school and parents. As a corollary, private schools may be well served to ensure that enrollment contracts are well drafted and disciplinary decisions are carefully considered within the terms of the contract.