The following is the full text of the legal opinion provided by Harold Elston of Barriston Law to Owen Sound City Council about the appropriateness of the process followed by the Bluewater District School Board in its Accommodation Review 2015/16 – Owen Sound Area Group of Schools , and whether Council should request a review of the accommodation review process.

His Worship Ian Boddy and Members of Council
City of Owen Sound
April 27, 2016
Dear Mayor Boddy and Members of Council:

RE: BLUEWATER DISTRICT SCHOOL BOARD ACCOMMODATION REVIEW POLICY AND PROCESS
Council has asked for my opinion on the appropriateness of the process followed by the Bluewater District School Board (the "Board" or the "BDSB") in its Accommodation Review 2015/16 – Owen Sound Area Group of Schools (the "accommodation review"), and whether it should request a review of the accommodation review process.
POLICY AND LEGISLATIVE FRAMEWORK
The Education Act (the "Act")
Subsection 8(1), paragraph 26, of the Act provides that the Minister of Education may issue guidelines with respect to school board's school closure policies.
Ministry Of Education Pupil Accommodation Review Guidelines (the "Guideline")
In March 2015, the Ministry of Education produced a new Guideline.
The Guideline provides the minimum standards the province requires school boards to follow when undertaking a pupil accommodation review. The purpose of the Guideline is to provide a framework of minimum standards for school boards to undertake pupil accommodation reviews to determine the future of a school or group of schools.
The Guideline ensures that where a decision is taken by a school board regarding the future of a school, that decision is made with the involvement of an informed local community and is based on a broad range of criteria regarding the quality of the learning experience for students.
The Guideline focuses on student well-being; academic achievement; and school board financial viability/sustainability.
It is important to note that the Guideline makes it clear that all pupil accommodation review policies must be clear in stipulating that the final decision regarding the future of a school or group of schools rests solely with the Board of Trustees.
Following the Board of Trustees' approval to undertake a pupil accommodation review, school boards must invite affected single and upper-tier municipalities to discuss and comment on the recommended option(s) in the school board's initial staff report.
The affected municipality must provide its response on the recommended option(s) in the school board's initial staff report before the final public meeting.
School boards must document their efforts to meet with the affected municipalities and provide any relevant information from this meeting as part of the final staff report to the Board of Trustees.
The school board must arrange to hold a minimum of two public meetings.
Prior to establishing a pupil accommodation review, the initial staff report to the Board of Trustees must contain one or more options to address the accommodation issue(s). Each option must have a supporting rationale.
School board staff are required to develop School Information Profiles (SIPs) as orientation documents to help the ARC and the community understand the context surrounding the decision to include the specific school(s) in a pupil accommodation review.
The SIP is expected to include data for each of the following two considerations about the school(s) under review:
Value to the student; and
Value to the school board.
BDSB POLICY BP 3101-D – ACCOMMODATION REVIEW – SCHOOL PROGRAM AND FACILITY EFFICIENCY (the "Policy")
The Policy sets out the Board's policy on school program and facility efficiency and provides a description of the system expectations, the accommodation review process, the roles and responsibilities of the accommodation review committee, and the required schedule of meetings, information and access. The Board's policy conforms to the Guideline.
Appendix A to the Policy establishes the process for a review of a school board's accommodation review process. A review may be sought if the following conditions are met.
An individual or individuals must:
1) Submit a copy of the board's accommodation review policy highlighting how the accommodation review process was not compliant with the school board's accommodation review policy.
2) Demonstrate the support of a portion of the school community through the completion of a petition signed by a number of supporters equal to at least 30% of the affected school's student headcount.
Based on the review process, the board will:
1) Accept the recommendation from board staff;
2) Reject the recommendation from board staff; or
3) Modify the recommendation from board staff.
THE PROCESS
Pre Accommodation Review
On October 8, 2014, the Board's Director of Education, Steve Blake, wrote to then Mayor Deborah Haswell, explaining that a capital planning report had been prepared to address the issue of declining student enrolment and the ensuing implications on the Board's funding. The letter emphasized that the report was received for information only and that no decisions had been made by the Trustees. The Board advised that it was awaiting newly revised student accommodation guidelines from the Ministry.
On May 1, 2015, the Board wrote to Ruth Coursey, then City Manager, inviting Ms. Coursey, or a delegate, to attend the Board's Annual Community Planning and Partnership Meeting, being held on June 15, 2015. The purpose of the meeting was described as being to "discuss potential facility partnership opportunities with the community and to exchange ideas/needs with community partners". On May 29, 2015, the City responded, explaining that staff were not able to attend.
The Accommodation Review Process
As noted above, pursuant to the Guideline, the Board is required to invite (through written notice) affected lower and upper- tier municipalities to a meeting to discuss and comment on the recommended option(s) from the ISR. The affected lower and upper-tier municipalities must provide their feedback on the recommended option(s), before the final public meeting.
The accommodation review process was commenced through a recommendation to the Board's Committee of the Whole in the Board's Initial Staff Report, dated October 6, 2015 (the "ISR"). The ISR presented the accommodation pressures that exist in the Owen Sound Area Group of Schools and recommended that the Board commence an accommodation review.
In summary, the ISR noted some 6,936 surplus spaces for an overall utilization rate of 70%. Future enrolment is projected to decline over the next 15 years to 67%. The ISR states that Board revenue is directly tied to student enrollment and that, as enrolment declines, so does funding from the Ministry of Education. Accordingly, the Board is looking to improve operational efficiencies by the consolidation or closing of under-utilized schools. I have seen nothing that challenges these assumptions and, for the purposes of this opinion, I have assumed that there was sufficient justification for the Board to undertake an accommodation review.
On October 13, 2015, Council adopted Resolution No. R-151013-022, 1) requesting that the Board delay its plans to begin an accommodation review, until appropriate community consultation was held, and 2) requesting a meeting with the Director of Education, Board Chair and Owen Sound Trustee at their earliest convenience to discuss the situation. The next day, the City sent the resolution to the Board.
Mayor Boddy wrote to the Honourable Liz Sandals, Minister of Education, on October 15, 2015, remarking on the lack of consultation, and asking the Minister to intervene to ensure that meaningful consultation be held prior to the start of the accommodation review process.
On October 21, 2015, the Board wrote to the City Clerk's Office advising that at the Regular Meeting of the Board held on October 20, 2015, the Trustees approved the following recommendation:
That Bluewater District School Board commence an accommodation review on the Owen Sound Area Group of Schools (Alexandra Community School, Hillcrest Elementary School, Keppel-Sarawak Elementary School, Owen Sound Collegiate and Vocational Institute, Sydenham Community School, and West Hill Secondary School) in accordance with BP3101-D.
The October 21st letter was identified as notice under the Policy that the Board had initiated an accommodation review on the above schools. The letter invited the City to attend a meeting on November 18, 2015. The purpose of the meeting was described as being to review and discuss the option recommended in the ISR, and reminded the City that lower and upper-tier municipalities must provide their response on the recommended option before the final public meeting of the accommodation review process is held.
On October 22nd, the Mayor's Executive Assistant called the Board (with a confirming email), following up on the City's letter of October 14th, enclosing the resolution asking for a meeting.
On October 23, 2015, the City received a letter dated October 22, 2015, from the Board's Steve Blake. The letter states that it was being sent in response to Mayor Boddy's October 14th letter, advising of the Board's invitation to the November 18th meeting. Mr. Blake then invites Mayor Boddy to contact the Board "if there are items beyond the accommodation review that you would like to discuss".
On November 13, 2015, Minister Sandals wrote to Mayor Boddy, responding to his concerns and hoping to provide "clarification". The letter references the revised Community Planning and Partnership Guideline, and notes the May 1, 2015 notice of the June 15, 2015 public meeting. Minister Sandals emphasizes that school boards have the right and responsibility to determine whether to undertake an accommodation review, and that under the Guideline, school boards offer municipalities the additional opportunity to comment during the accommodation review.
Three representatives from the City attended the November 18, 2015, accommodation review meeting (Wayne Ritchie, Councillor Thomas and Councillor Greig). Mr. Ritchie reported to Council on this attendance on December 3, 2015.
On December 2, 2015, Randy Scherzer, the County's Director of Planning and Development, wrote to the Board (Steve Blake), thanking Mr. Blake for the opportunity to meet and discuss the ISR on November 16th (Meaford Schools) and 18th (Owen Sound schools), and providing the Board with written comments on the review. (Mr. Scherzer notes that he was providing the County's comments on the understanding that written comments needed to be submitted prior to those public meetings.)
Mr. Scherzer indicates that it was not clear that the earlier Community Planning and Partnership meeting was also an opportunity to provide preliminary comments on potential school closures and consolidations, as these were not known until the release of the ISR. He notes that, had the Board's plans been known in June, a more focused discussion could have occurred prior to the ISR. He states that the County believes that the accommodation review process has primarily been influenced by financial pressures and building conditions, and discusses other aspects that need to be considered as part of the accommodation review process, including a review of the expected social and community impacts on the subject schools. In conclusion, Mr. Scherzer recommends that the process provide sufficient time to address these outstanding matters, prior to a final decision being made.
It seems that even Mr. Scherzer's fulsome submission had little or no impact on the accommodation review process.
On December 3, 2015, the First Public Meeting was held. Mr. Ritchie attending event on behalf of the City.
My review suggests that this was the final attendance or submission on behalf of a municipal government. The process continued, as follows:
 January 7, 2016, ARC Working Committee Meeting
 January 25, 2016, ARC Working Committee Meeting
 February 11, 2016, Final Public Meeting
 March 1, 2016, Preliminary Final Staff Report submitted to BDSB Committee of the Whole
 March 23, 2016, Special Meeting of the BDSB Board
 April 12, 2016, Final Staff Report submitted to BDSB Committee of the Whole
 April 19, 2016, Trustees approve recommendations from Final Staff Report
ANALYSIS
A review of the accommodation review process must assert how the accommodation review process failed to comply with the Board's accommodation review policy. I have reviewed the policy and the process in great detail and, although there are many flaws in it, I am unable to say that the process did not comply with the Board's policy to the extent that a review should be sought. If a review were to be initiated, it is my opinion that it would not be successful.
In particular:
1) The process seems to have correctly applied the qualifying criteria in determining which schools may be recommended for an accommodation review;
2) The ISR complies with the policy, contains the required information, and contains options to address the accommodation issue(s);
3) Within five (5) days of the Board of Trustees' approval to undertake an accommodation review, a written invitation to attend a meeting to discuss and comment on the recommended option(s) from the ISR was sent to the City (November 18, 2015);
4) All other notice requirements appear to have been met;
5) The Accommodation Review Committee was properly constituted and was given the appropriate mandate;
6) The requisite number of public meetings were held (December 3, 2016 and February 11, 2016); and
7) Provisions were made for public information and access, and written submissions and presentations.
It is clear from the record that the City did indeed have concerns about the Board's plans to commence an accommodation review. Those concerns were pursued competently and diligently with the Board and the Minister of Education in advance of or shortly after the start of the accommodation review process. Unfortunately, the requests for a delay of the process were ignored.
Although City representatives did attend the November 18, 2015, initial meeting, and the first public meeting on December 3, 2015, and Council adopted a resolution on April 18, 2016, again asking for a postponement of the decision to consolidate and close schools, this participation did not impact the pace or result of the process.
The Education Act clearly establishes the authority for the administration of schools, including their consolidation and closing, in the Minister of Education and the local school board. The Minister has properly prepared guidelines, under the authority of section 8(1) 26, and the letter of those guidelines has been followed, if not their spirit. Accordingly, as much as the City may disagree with the Board's decision, in my respectful submission, there are not sufficient grounds for a review of the accommodation review process, and I would not recommend that one be initiated.
I appreciate that this has been a difficult matter for council, and I trust that this analysis and advice will be of some assistance.
Yours very truly,
Per: Harold Elston
Barriston Law