Lawyer turned litigant takes on Toronto District School Board | Lauren Chang MacLean
Thursday, August 20, 2020 @ 11:09 AM | By Lauren Chang MacLean
|Lauren Chang MacLean|
A neighbour and I took on the Toronto District School Board (TDSB) by filing an application for judicial review, for want of procedural fairness in a cut to the French immersion program.
The cut was made outside the board’s written procedures for these kinds of changes. When brought to TDSB’s attention, it said the procedure was outdated (despite being mentioned in several recently updated documents), promptly removed all traces of it from its website and then held a closed-door meeting to formally rescind it.
Despite excellent legal representation by our neighbour Lucas Lung, we lost our challenge to the fairness of these actions (Chang MacLean v. Toronto District School Board). The court’s reasons have not yet been issued, so the reason for the loss is not yet known. Even so, I don’t regret any of it.
In late January 2020, my 5-year-old, and 13 other junior kindergarteners lost an unannounced lottery at their Toronto elementary school. These unlucky 14 will not join their classmates in their school’s senior kindergarten French immersion program this September because TDSB cut the number of French immersion intake classes from two to one. The school has had at least two senior kindergarten French immersion classes for as long as enrolment records have been kept.
When parents asked why the beloved program was cut, TDSB said it was to ensure the English stream at the school is viable. Last year, only seven children enrolled in the English program and only five were expected to enrol this September.
Initially, parents were told the cut was unrelated to space issues or budget. Before the Divisional Court, TDSB reframed the rationale as largely related to budgetary issues and a drive for efficient staffing, filling classes to the absolute allowable maximum of 32 kids per class.
The 14 children were offered spots in a French immersion program at a school in another catchment. Parents had four business days to decide whether to take the spot at the other school or have their children lose the opportunity to study in early French immersion.
Busing would be offered for one year, and before-and-after-school child care at the other school was not available. Children with spots in the after-school program at the home school would not be permitted to continue attending, even if parents arranged an escort from the bus into the daycare. A petit problème remained: if they chose the French immersion option at the other school, how would working parents collect their children from the bus (or next year, the other school) at 3:30 p.m.?
The parents turned to TDSB with these problems, suggesting access had been purposely restricted to force enrolment in the English program. They asked: are our children being dissuaded from their best chance at becoming bilingual to bolster the English program? If so, what other options have been canvassed to increase English enrolment? Scant answers were provided.
We learned there was a procedure on the TDSB’s books to address situations like this: when a school with French and English streams experiences viability problems in one of the streams, an involved consultation and notice process would ensue.
Together, daycare providers, affected parents, elected parent councils and other stakeholders would provide input and weigh options to solve the viability problem, then make recommendations to the board of trustees. Parents would get a year’s notice of program changes.
The parents asked: Why was this procedure not followed? School board representatives have admitted they effectively forgot about the procedure and told parents that the procedure was scheduled for rescission.
However, the procedure was referenced in a variety of policies, procedures and reports on the board’s website. Within weeks of the parents asking questions, the procedure was quietly rescinded in a closed meeting where no publicly available minutes were taken. Almost all evidence of the procedure’s existence was scrubbed from TDSB’s website.
This brings us to the point in the narrative where this upset parent and lawyer underwent a reluctant transformation into a litigant.
Before going that route, the parents made a lot of noise to try to get TDSB to change its decision. The community rallied and hundreds of calls, letters and e-mails were aimed at trustees, local politicians and TDSB decision makers. Naively thinking it could sway things, I participated in a smattering of media interviews.
At a community meeting with our NDP MPP Jessica Bell, our neighbour Lung, who practises at Lerners LLP, emerged and offered to represent us in a judicial review. We had contemplated this possibility and were looking for representation.
The community raised nearly $10,000 in three days as a security net against disbursements and a potential adverse costs award.
So on we went, with myself and my neighbour as co-applicants. A cohort of nine other families intervened in the application in our favour.
We argued that the school board’s creation and publication of its procedure created a duty of fairness at law, and the content of that duty was the procedure. We asked that the court find TDSB breached this duty in failing to follow its procedure.
As remedy, we requested the decision to cut the class be quashed, and with the second class reinstated, that the senior kindergarten admissions process be rerun for the 14 children. We did not seek costs.
TDSB framed the cut as a student reallocation and argued that allocation decisions were not reviewable. It argued that due process was provided when TDSB officials entertained parents’ complaints after they were made aware of the cut.
TDSB stated that the procedure was outdated and inadvertently left up on the board’s website. It said that reference to the procedure in multiple published documents was in error, and that in any event, the procedure did not apply.
It was hard to see how the procedure did not apply. Historical meeting minutes showed the genesis of the procedure was to solve viability problems stemming from low enrolment in an English program in a dual-track school. If it did not apply here, when?
TDSB stated that even if the decision was quashed, it would simply remake the same cut (without the benefit of the now-rescinded procedure), and asked that the court not exercise its discretion to order a remedy. It asked for a punishing $91,000 in costs.
Justices David Corbett, Laurence Pattillo and Freya Kristjanson of the Divisional Court heard a full day of argument via Zoom on Aug. 5, 2020. The hearing was broadcast live on YouTube to a large audience of parents and French language education advocates.
Because our requested remedy would impact the configuration of classes for September 2020, the panel undertook to provide a bottom-line decision quickly, with reasons to follow.
Just two days later, we learned we had lost.
Yes, we lost, and we don’t know why yet. Perhaps we lost in a way that we will consider a consolation win.
The parties ultimately agreed to $15,000 costs to the winner. The community felt strongly about the cause and as a result of contributions, we were able to cover both the adverse costs award and disbursements.
I must acknowledge the privilege of my complaint, as well as these circumstances. Many would-be litigants would be unable to risk costs exposure, find pro bono counsel or have the community’s backing in this manner. I am blown away and grateful to have been in the position to be able to even attempt to seek a court remedy.
The case that turned me from lawyer to litigant was about standing up for my 5-year-old daughter and the other kindergarteners in my community, to help them access their best chance at becoming bilingual.
Personally, I have learned a tremendous amount about the importance of treating adverse parties with compassion and wherever possible, forthrightness. This case has underlined a concept I was previously familiar with, but now truly understand: that the pursuit of justice can be fuelled equally by standing up for what is right, as well as a desire to force reflection and accountability within an institution that has shown callousness to those it is charged with serving.
These lessons have made me a better lawyer and advocate.
Regardless of the outcome, it was a worthy cause. And it was worth it.
Lauren Chang MacLean is a Toronto-based lawyer working in labour and employment, human rights and privacy law. The views expressed are only those of the author in her personal capacity.
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