Court of Appeal Says Private School’s Decision to Expel Pot Smoking Student Not Subject to Judicial Review

The Court of Appeal has unanimously ruled that a private school’s decision to expel a student is not subject to judicial review.

In September, 2012, the Divisional Court quashed Appleby College’s decision to expel a student on his last day of high school for smoking pot in his residence. A quick refresher on the facts of the case can be found in a post I wrote last November.

In a nutshell, Mr. Setia was caught smoking pot in his residence at Appleby College (a prestigious Ontario private high school) on the day before his final exam of high school. The school expelled him and while Mr. Setia was able to obtain his Ontario Secondary School Diploma, his expulsion meant he would be unable to receive the more prestigious diploma from Appleby.

Mr. Setia applied to the courts to have the decision to expel him reviewed by a judge. Although Appleby College is a private school it was created in 1911 by a Special Act of the Ontario Legislature. Setia argued that this allowed him recourse to a Judge. The Divisional Court agreed and quashed the school’s decision to expel him.

I noted in my post that most interesting to me was the fact that the Divisional Court had jurisdiction to hear the application. As it turns out, the Court of Appeal has decided that the Divisional Court had no jurisdiction to hear the application and has overturned the decision on that basis alone.

Appleby, with the support of six other private schools that were granted intervenor status, argued that the decision to expel Setia was not an exercise of a statutory power. The school also argued that in order to engage the remedy of judicial review the decision in question must come within the scope of public law. The Court of Appeal agreed with both arguments.

The Court of Appeal found that the statute simply authorized the Board of Appleby to confer on its officers and employees “such powers… of discipline as it may think necessary” and that “the expulsion decision arguably effects the will of the Board more than the will of the legislature.”

More importantly, the Court of Appeal held that even if the decision to expel was an exercise of a statutory power, the expulsion decision is the kind of decision that is not reached by public law and therefore no public law remedy can be applied. The Court of Appeal canvassed a number of factors in making this determination including:

(a) the nature of the decision-maker (Appleby) and its responsibilities;

(b) the decision-maker’s relationship to other parts of government;

(c) the character of the matter for which review is sought; and

(d) the extent to which the decision is shaped by private law rather than public law.

It would not surprise me if Setia attempted to obtain leave to the Supreme Court, and given the ramifications that this decision could have on public law and judicial review (not to mention the impact on teens smoking pot in their dorm rooms Province-wide), it would not surprise me if the Supreme Court decided to hear the appeal.

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