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NOTL's last elementary school to close: Divisional Court

An Ontario Divisional Court has upheld a school board decision to close Niagara-on-the-Lake’s last elementary school in a ruling that acknowledges how difficult and heart wrenching such closures can be for communities, says education lawyer Sheila MacKinnon, a partner with Shibley Righton LLP.

Citizens for Accountable and Responsible Education Niagara Inc. v. District School Board of Niagara, 2015 ONSC 2058 (CanLII) saw a group of parents challenge the District School Board of Niagara decision to close Parliament Oak School (POS) due to decreased enrollment.

The school board was represented by Shibley Righton lawyers Paul Howard and Jessica Koper.

In April 2014, the school board voted to close the school after efforts to increase enrollment were unsuccessful.

“As of Sept. 15, 2013, there were 127 students attending POS, which has a capacity of 328. POS was operating at a 39 per cent utilization rate,” says MacKinnon.

A group of parents subsequently sought judicial review of the board's decision both on a procedural and substantive basis, with the applicants alleging the decision-making process was procedurally unfair, and that the decision to close the school was not reasonable. The latter argument was dropped at the hearing of the application, notes MacKinnon.

“A school board’s decision to close a school due to decreased enrollment has a significant impact upon a community and its residents both present and future,” Justice Janet Wilson writes in the decision. “These are difficult, heart wrenching decisions, provoking strong and divergent feelings and opinions amongst affected community members.”

At the same time, writes Wilson, “... it is not the role of this court to evaluate the wisdom of decisions by trustees to close a school.”

The decision, says MacKinnon, “underlines the importance of school boards to keep a detailed record of meetings and the rules, steps and processes followed during an entire accommodation review in order to maintain transparency.”

It also “reaffirms that the courts will not lightly intervene in decisions made by trustees to close a school,” she adds.

The contention raised in the case is not a new phenomenon, says MacKinnon, as issues around vacant spots in schools often spur serious and heated debates.

About a month before the ruling was released, the Ministry of Education released revised guidelines — called the Pupil Accommodation Review Guideline — to help school boards with the process of making decisions over empty space in schools.

The Guideline serves as a province-wide standard for school boards, and must be consulted, along with the Community Planning and Partnerships Guideline, before any new reviews of the ussage of school space are announced, says a government release.

“Student accommodation decisions such as closing schools, consolidating schools and building new schools are among the most important responsibilities of locally elected school board trustees,” says the release. “The Ministry of Education cannot overrule or change these decisions.”

School boards will usually undertake a pupil accommodation review process — led by an Accommodation Review Committee — when it is contemplating closing a school, says the release.

While MacKinnon believes the court made the right decision in the Niagara case, she says it’s understandable that heartfelt attachments to schools exist.

“It can be quite emotional for parents,” says MacKinnon, who has been brought in as a consultant on similar cases in the past. “It’s interesting because at the end of the day, it’s just bricks and mortar, but for everyone involved it’s history and memories being taken away.”

But she says it’s also important to remember that these decisions are made with the best interests of students, staff and other stakeholders in mind.

“Having a large number of vacant spots does not lead to good programming for students,” says MacKinnon. “If there are not many students, particularly with high schools, you can’t offer all the extracurricular activities and you can’t offer the variety in courses you might be able to offer at a bigger high school.”

POS is slated to close at the end of this month, says MacKinnon, with students scheduled to attend a newer school about 7 km away in September.

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