Parents of Brown's Flat and Lorne schools lose court fight

Parents whose children attended Brown's Flat Elementary and Lorne Middle schools have lost their court fight to reopen the two schools.

The New Brunswick Court of Appeal ruled Friday afternoon that a lower-court judge went too far in quashing the education minister's approval of the closures.

Earlier this year, Education Minister Serge Rousselle okayed the decision by the Anglophone South District Education Council to close the schools.

In late August, Court of Queen's Bench Justice Darrell Stephenson quashed Rousselle's approval, saying the DEC consultation process had been flawed.

This really is an issue that is brewing about democracy itself and the accountability of government.- Phil Kennedy

But the Court of Appeal called Stephenson's ruling an error.

Without a compelling legal reason, "judges must leave standing policy decisions taken by elected representatives," Chief Justice Ernest Drapeau ruled Friday afternoon.

The two other justices who heard the case, Margaret Larlee and Marc Richard, agreed.

Drapeau said the court will issue a longer, detailed written ruling in the weeks to come.

Justices were skeptical

There were indications during the two-and-a-half hour hearing Friday morning that the justices were skeptical of the parents' arguments.

Richard asked at one point whether three unelected judges with no connection to the two communities should be overruling a decision by locally elected members of the district education council.

Even so, Phil Kennedy, whose ten-year-old son attended Brown's Flat Elementary, said the ruling was a blow to democracy itself.

"People have to be really mindful that this really is an issue that is brewing about democracy itself and the accountability of government, and we really have to keep an open eye on what's going on here," he said.

He did not rule out the parents appealing to the Supreme Court of Canada, even though they don't have the money to keep fighting.

"Can we afford not to take this further and explore this to its end?" he asked.

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Under new criteria established earlier this year, DECs around New Brunswick will study whether to close a total of 28 schools in the coming year.

In a written statement,Serge Rousselle said the decision was in the public interest but, "I recognize that it's not what some communities wanted to hear."

He said district education councils know "that sound infrastructure planning, which takes into account many different factors, is critical to providing the best possible education for our children and youth."

Stephenson ruled Aug. 31 that the DEC hadn't followed the provincial policy on school closures, policy 409, because it didn't provide the parents with reasons for its decision.

The policy requires the DEC to provide "an account" of its consultations. Stephenson interpreted that to mean it had to provide reasons, an interpretation the province disputed.

The province also argued that only the minister has the legal power to decide whether the DEC had followed the policy. A judge can't "step into" that role, according to Christian Michaud, the province's lawyer.

Justices Drapeau and Richard repeatedly grilled the parents' lawyer, Kelly Lamrock, on his argument that the DEC was legally required to provide reasons.

Richard called it a "practical impossibility" to expect 12 DEC members to provide reasons for their votes, given each of them might have their own reasons for how they voted.

He also pointed out that municipal councils vote on zoning decisions, for example, without providing written reasons.

And, he asked Lamrock, a former Liberal MLA and education minister, "when you voted in the Legislature, did you give reasons for your vote?"

Lamrock responded that "the court has to have something" to look at if the decision is going to be subject to judicial review.

"It is reasonable that the school is closed," Lamrock said. "It is not reasonable that no one knows why."

That apparently failed to persuade the judges, who had already read what Drapeau called the "humongous" volume of documents filed by both sides in the case.

Appeal to Supreme Court only recourse

The decision means the Brown's Flat and Lorne schools will stay closed unless there is another appeal to the Supreme Court of Canada.

Lamrock told reporters he'll wait until he can read the written reasons for today's decision before discussing with the parents whether to go that route.

He said parents with children at other schools facing closure may also want to join the legal case.