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JUDICIAL REVIEW AND STATUTORY APPEAL - Practice and procedure - Orders

Monday, May 08, 2017 @ 7:53 AM  

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Appeal by the Minister of Education and Early Childhood Development and cross-appeal by the Francophone South School District Council from an order converting a judicial review application into an ordinary action. The respondents, Henrie and Arsenault, applied for judicial review of a Ministerial decision giving effect to a school closure recommendation by the District Council. The respondents sought to quash the Ministerial decision with ancillary relief compelling the re-opening and continued operation of the school. A proposed amendment to the application objected to the constitutional validity of closure-related provisions of the Education Act. The application judge converted the matter into an ordinary action without exploration of the merits. The Minister appealed on the basis the judge erred in making the conversion order. In the event of the Minister's appeal succeeding, the District Council cross-appealed on the basis the judicial review should be undertaken by the Court of Appeal rather than referred for adjudication.

HELD: Appeal allowed and cross-appeal dismissed. The application judge's conversion order was erroneous and without jurisdiction. The core remedy sought in the original notice of application was the quashing of the Minister's decision approving the school closure. Under Rule 69.01, such remedy could only be obtained by way of an application for judicial review. The other remedies were contingent upon success of the application to quash the Minister's decision. The conversion order could not be sustained. The present case was not a case where it was appropriate for the Court of Appeal to dispose of the application for judicial review without the benefit of a decision by the Court of Queen’s Bench on the merits.

New Brunswick (Minister of Education and Early Childhood Development) v. Henrie, [2017] N.B.J. No. 86, New Brunswick Court of Appeal, J.E. Drapeau C.J.N.B. and J.C.M. Richard and K.A. Quigg JJ.A., April 27, 2017. TLD-May82017003