TDSB's Policy-Making Is Illegal

TDSB's Lack of Powers (ultra vires) to Conduct the Secondary Program Review or Make the Policy Changes

Summary / TLDR

  1. "For public bodies, …, everything which is not allowed is forbidden."
  2. The TDSB is not explicitly allowed to conduct the Secondary Program Review or make any policy changes in concern, which thus are clearly and unequivocally illegal.

Disclaimer

  1. (Copied from previous posts) This post is to provide the information, and the citations might not be properly given. All the credits are attributed to the original sources. It is written to the best of the contributors' knowledge and memory, which might not be fully accurate.
  2. (From the main contributor) This post is written based on an email sent to the Ontario Ministry of Education, Toronto Office.

Credit

The main contributor for this post is Max Kant. Thanks a lot for their generosity.

Note

This is one of a series of accompanying explanatory posts for the FREEDOM Declaration of Ontario and the FREEDOM of Ontario's Heads-up Message to Ontario Citizens and Residents, as listed in the latter's Appendix.

 

 

There is a significant difference between rights of an individual and powers of a public authority in a democratic modern society: Theoretically, and mostly in practice too, an individual may do anything that is not forbidden by laws or similar kinds, in addition to the rights conferred by laws or similar kinds, while anything a public authority may do must be explicitly authorized by laws or similar kinds, all of which are fundamentally mandated by "citizens" (who are in general and broad sense).

 

This is a legal maxim called "(for an individual) everything which is not forbidden is allowed" principle, and the opposite one is "for public bodies, and notably government, everything which is not allowed is forbidden." (Web accessed: 2022-05-05)

 

The latter applies to the Toronto District School Board (TDSB) too: It must obtain a mandate for anything it may do.

 

The powers (authority, or jurisdiction) of an Ontario school board are provisioned in two sections of the Ontario Education Act:

  1. Section 171 (web accessed: 2022-05-05), Powers of boards;
  2. Section 8 (web accessed: 2022-05-05), Powers of Minister [of Education], where the Minister of Education may issue policies and/or guidelines in specific areas such as school closings, etc.

 

The TDSB's Secondary Program Review (web accessed: 2022-05-05), which has been ongoing since early/mid 2019 and involves board-wide secondary program review and changes, obviously does not fall into the school board's any powers authorized in Section 171. In my previous communication with an officer in the Ontario Ministry of Education, I was directed to the Ministry's Pupil Accommodation Review Guideline (web accessed: 2022-05-05) issued under Section 8, which apparently does not apply either: the Guideline is mainly about a school board's physical assets review and change, specifically a school consolidation and/or closure, where a program change, such as the program relocation, if applicable, is limited only to the specific school(s) involved in a Pupil Accommodation Review.

 

The TDSB's Specialized Schools and Programs Policy, which was out of the Secondary Program Review, has been recently (likely on or around 2022-04-27) rebranded into the Student Interest Programs Policy (web accessed: 2022-05-05, a PDF copy dated 2022-04-27 may be found here; hereinafter called the "Policy report"), which was approved by the TDSB Trustees on 2022-05-25. There are a few notable policy changes in the Policy report:

  1. Centralized specialized programs are being established;
  2. The number of the specialized programs and/or schools a student may apply for is to be capped at one (1);
  3. The admission criteria for (centralized) specialized programs (and schools) are to be "interest"-based, and in particular, the admissions are to be essentially racially manipulated (typically termed as "racial quota" or "racial balance/balancing") every year in the name of examining "students' demographic data within centralized programs and schools," based on which, "there may be adjustments made to the priority groups and the number of priority seats set aside each year." (Page 7 of the Policy report)

 

Again, none of these policy makings is within the TDSB's powers/authority/jurisdiction authorized by either Section 171 (Section 171, specifically Subsection 171 (1) 7 does authorize a school board to "determine ... kind of schools to be established and maintained...," but not "kind of programs ...") or Section 8. Historically in Ontario, setting a (specialized) program and its admission criteria is exclusively done at a school level, not at a school board level.

 

Unless the Ministry/Minister of Education has offered any policy(-ies), guideline(s), memo(s), and/or framework(s) for the TDSB to conduct the Secondary Program Review or make the policy changes as mentioned above, which is highly unlikely, the TDSB has acted beyond its powers (ultra vires) to do any of the following:

  1. To conduct the Secondary Program Review that involves board-wide secondary program review and changes;
  2. To establish centralized specialized programs;
  3. To cap the number of the (specialized) programs and/or schools a student may apply for;
  4. To set or change admission criteria for any (specialized) program or school;
  5. To racially manipulate the overall or separate numbers of students admitted into (specialized) programs and/or schools.

 

Ontario and Canadian case law has repeatedly confirmed such powers must be "clearly and unequivocally" given by legislation, and the TDSB "clearly and unequivocally" has no such authorization by any legislation, and thus its conducting the Secondary Program Review and making the enumerated policy changes are "clearly and unequivocally" illegal.

 

Comments

  1. Anyone who has a legal background may advise if the information in the post leads to a practical legal suit path?

    ReplyDelete
    Replies
    1. In theory yes, and in reality, probably the chance would be slim

      Delete
    2. The chance is probably not slim, and yet it would be definitely a challenging task. That said, it might be a good timing to seek injunction before the new policies take effect.

      Delete

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