Corporation of the United Counties of Northumberland and Durham v. Board of Public School Trustees Union School Sections 16 and 18 Townships of Murray and Brighton, [1941] SCR 204

Supreme Court of Canada

Corporation of the United Counties of Northumberland and Durham v. Board of Public School Trustees Union School Sections 16 and 18 Townships of Murray and Brighton, [1941] S.C.R. 204

Date: 1941-02-04

The Corporation of the United Counties of Northumberland and Durham (Defendant) Appellant;

and

The Board of Public School Trustees Union School Sections 16 and 18 Townships of Murray and Brighton (Northumberland County) (Plaintiff) Respondent.

1940: November 21, 22; 1941: February 4.

Present: Duff C.J. and Davis, Kerwin, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Schools—School board providing transportation of county pupils to and from continuation school—Liability of county in respect of cost of such transportation—“Cost of education”—Continuation Schools Act, Public Schools Act, High Schools Act, R.S.O., 1937, c. 359, c. 357, c. 360.

The respondent Board of Public School Trustees had established and maintained a Grade B Continuation School in its Union School Sections, which were in the County of Northumberland, Ontario. Respondent had provided in the year 1937 transportation by motor buses to and from said continuation school for pupils residing outside said school sections though in the County of Northumberland (called “county pupils”), and sought to hold liable the appellant, the Corporation of the United Counties of Northumberland and Durham, in respect of the cost of such transportation, as being part of the cost of educating such county pupils.

Held (Davis J. dissenting): Respondent Board was entitled to recover from appellant corporation payment in respect of said costs of transportation. (Judgment of the Court of Appeal for Ontario, [1940] 2 D.L.R. 28, affirmed.)

The Continuation Schools Act, R.S.O., 1937, c. 359, particularly ss. 3 (2), 5, 8(1), 15; The Public Schools Act, R.S.O., 1937, c. 357, particularly ss. 94, 95, 86, 87, 89 (p); The High Schools Act, R.S.O., 1937, c. 360 (particularly, per Davis J., s. 24 (h), as amended in 1938, c. 35, s. 17), considered.

Doubt expressed (per the Chief Justice and Kerwin and Taschereau JJ.) as to the right of the parties to have determined by action the above question of liability, in view of s. 36 (4) of The High Schools Act (as to determination by the Judge of the County Court), and as to the discretion under s. 15 (b) of the Ontario Judicature Act to make a mere declaratory judgment in this action; but in view of certain proceedings before action and the course of proceedings in the action, the appeal to this Court was (but without in any way creating a precedent) dealt with on the merits. (In the view of the merits taken by Davis J., dissenting, it became unnecessary to

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consider whether said s. 36 (4) of The High Schools Act precluded the Supreme Court of Ontario from entertaining an action for the declaration made by that Court.)

APPEAL by the defendant from the judgment of the Court of Appeal for Ontario[1] which reversed the judgment of Greene J.

The plaintiff, the Board of Public School Trustees of Union School Sections 16 and 18, Townships of Murray and Brighton, in Northumberland County, Ontario, had established and maintained a Grade B Continuation School within its Union School Sections. In the year 1937 the plaintiff Board provided transportation to and from its said continuation school for pupils residing in the County of Northumberland but not within said union school sections, who, being so resident, were “county pupils” as defined in s. 1 (b) of The Continuation Schools Act, R.S.O., 1937, c. 359. In this action the plaintiff sought a declaration that the cost of transporting county pupils to and from the said school was part of the cost of educating such county pupils, and to recover from the defendant, the Corporation of the United Counties of Northumberland and Durham, payment in respect of the cost of such transportation for the year 1937.

Greene J. dismissed the action with costs. His judgment was reversed by the Court of Appeal for Ontario (Harrison J.A. dissenting)¹ which by its formal judgment declared

that the cost of transportation of county pupils to and from the Continuation Grade B School maintained by the plaintiff is part of the cost of education of such county pupils to be paid by the defendant to the plaintiff and charged, levied and collected in the manner provided in sections 35, 36, 37 and 38 of The High Schools Act, being ch. 360, R.S.O., 1937.

and directed that there be no order as to costs of the action or of the appeal.

Special leave to appeal to the Supreme Court of Canada (defendant undertaking not to ask for costs of such appeal against the plaintiff) was granted by the Court of Appeal for Ontario.

D.L. McCarthy K.C. for the appellant.

W.N. Tilley K.C. and John Callahan K.C. for the respondent.

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The judgment of the Chief Justice and Kerwin and Taschereau JJ. was delivered by

KERWIN J.—The appellant, the Corporation of the United Counties of Northumberland and Durham, in the Province of Ontario, was sued by the respondent, the Board of Public School Trustees, Union School Sections 16 and 18, Townships of Murray and Brighton. The action was dismissed by the trial judge but the Court of Appeal for Ontario, granting the relief sought by the respondent, declared

that the cost of transportation of county pupils to and from the Continuation Grade B School maintained by the plaintiff is part of the cost of education of such county pupils to be paid by the defendant to the plaintiff and charged, levied and collected in the manner provided in sections 35, 36, 37 and 38 of The High Schools Act, being ch. 360, R.S.O., 1937.

By special leave of the Court of Appeal, the Corporation of the United Counties now appeals.

The Townships of Murray and Brighton are situate in Northumberland, one of the United Counties. The respondent board was constituted under the provisions of The Public Schools Act and its powers in connection with the public school maintained by it may now be found in The Public Schools Act, R.S.O., 1937, chapter 357, and amendments. Under The Continuation Schools Acts in force from time to time, provision was made for the establishment of continuation schools. Pursuant to what is now subsection 1 of section 3 of The Continuation Schools Act, R.S.O., 1937, chapter 359, the respondent board established a Grade B Continuation School in its Union School Section and by subsection 2 of section 3, in respect of the maintenance of that school, it has all the powers conferred on it as a public school board. Maintenance is defined in The Continuation Schools Act but, in my opinion, has no bearing on the issue in dispute.

By section 5 of The Continuation Schools Act, no fees are payable by or in respect of a pupil attending the respondent’s continuation school who is,—

(a) a pupil who resides or whose parent or guardian resides, or is assessed for an amount equal to the average assessment of the ratepayers in the municipality or school section by the board of which the school is established;

(b) a pupil whose cost of education is payable under the provisions of section 8 either as a county pupil or otherwise.

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“County pupils” is defined in the Act and there is no doubt that such pupils attended the respondent’s continuation school, that is, pupils outside the limits of those parts of the townships of Murray and Brighton included in Union School Sections 16 and 18 but still within Northumberland, one of the United Counties. The cost of education of those county pupils at the respondent’s continuation school is, by virtue of subsection 1 of section 8 of The Continuation Schools Act, to be paid by the appellant to the respondent and charged, levied and collected in the manner provided in certain enumerated sections of The High Schools Act. There is no dispute as to the manner of working out this cost, based upon the total number of days’ attendance of county pupils as compared with the total number of days’ attendance of all pupils. What is in issue is whether an item of $1,176, representing the amount paid by the respondent board for transporting county pupils to and from its continuation school, was properly included in the total cost of education of all the pupils of the school.

Section 15 of The Continuation Schools Act provides:—

Such of the provisions of The Public Schools Act in the case of a continuation school under the jurisdiction of a public school board as are applicable and are not inconsistent with this Act, shall be read as part of this Act.

Sections 94 and 95 of The Public Schools Act read as follows:—

94. The board may provide for the transportation of pupils to and from a school maintained by it or which is used jointly by it and another board or other boards, and any payment made or any liability heretofore made or incurred for such purpose under agreement or otherwise is hereby validated and confirmed and declared to have been legally made or incurred.

95. (1) The board of a section or municipality may provide for the transportation of pupils residing in the section or municipality, as the case may be, to and from a continuation, high or vocational school situate elsewhere which such pupils have the right by law to attend, and for the purpose may co-operate with any other board.

(2) The cost of providing transportation under section 94 or this section shall be an expense to be included in the estimates for the current year.

Subsection 1 of section 95 may be disregarded; it permits a public school board to provide for the transportation of pupils residing in its section to and from a continuation school situate elsewhere and is therefore not applicable to

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the respondent, which maintains a continuation school. Under section 94, however, the board of a public school section “may provide for the transportation of pupils to and from a school maintained by it or which is used jointly by it and another board or other boards.” I agree with the Chief Justice of Ontario that there is nothing in The Public Schools Act, or elsewhere, which prohibits a public school board carrying on some of its functions or duties beyond the territorial limits of the section it serves. In addition to the examples given by him, the reference in section 94 to a school used jointly by a board with others would indicate that the transportation therein referred to would in that case necessarily extend beyond such limits. Again, as the Chief Justice points out, a public school board, under section 86 of The Public Schools Act, must in certain circumstances admit to its public school non-resident pupils. It is true that under section 87 special provision is made for the cost of transportation where there is no school in a rural school section but that might well be because of questions that would otherwise arise as to what expenditures the board of a rural section which maintained no school could incur.

Section 94 is applicable to the respondent board and is not inconsistent with The Continuation Schools Act. With reference to its continuation school, the respondent may exercise the same powers as it has with respect to its public school, and by virtue of another applicable and not inconsistent provision (subsection 2 of section 95) the total cost of transportation thus properly incurred is “an expense to be included in the estimates for the current year.” These are the estimates referred to in section 89 (p) of The Public Schools Act which must show “any revenues estimated to be derived by the board during the current year from all sources.” The item in question having been properly included in the total cost of education of all the pupils attending the school, it follows that under subsection 1 of section 8 of The Continuation Schools Act it represents part of the cost of education of county pupils to be paid by the appellant and charged, levied and collected in the manner indicated.

I share the doubt expressed by the judges in the Court of Appeal as to the right of the parties to have determined by action the question of liability in view of the provisions

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of subsection 4 of section 36 of The High Schools Act, and also the doubt that the Court had a discretion under clause (b) of section 15 of the Ontario Judicature Act to make a mere declaratory judgment in this action. But, as pointed out by the Chief Justice of Ontario:—

No objection was taken, either in the statement of defence or at the trial or on the argument in this Court to proceeding by way of action. It further appears that the County Judge, before action, had been asked to determine the dispute, but he thought he had no jurisdiction to do so, and this view seems to have been acquiesced in at the time by the respondent’s solicitor. Without deciding one way or the other as to the jurisdiction of the county judge, it may be well, in view of the costs incurred and the very full and careful arguments that have been made, that this Court should make a declaration of the rights of the parties.

The appellant sought and was given leave to appeal from the decision of the Court of Appeal, and before us no question was raised by either party as to the right of the Ontario Courts or of this Court, to pronounce upon the matter.

It is under these circumstances and without in any way creating a precedent that this Court has undertaken the responsibility of deciding whether the Court of Appeal’s order was correct or not. We are of opinion that it was right. The appeal should be dismissed but without costs.

DAVIS J. (dissenting)—This appeal involves the interpretation of what I venture to call mutatis mutandis legislation—legislation by reference is, I think, the common and perhaps the more accurate expression—and presents, as such legislation usually does, vexatious and quite unnecessary difficulties. If a legislature does not see fit to express itself in clear and simple language but prefers to adopt the objectionable course of making so much of another statute as is “applicable” and “not inconsistent with” a particular statute to be “part of” the particular statute, the applicability and the consistency ought to be very plain.

The respondent is the Board of Trustees of a continuation school having a definite area within, but covering a portion only of, the United Counties of Northumberland and Durham in the Province of Ontario. It provided transportation by motor buses for pupils who resided outside the school section but within the boundaries of the United

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Counties and now seeks to include the cost of such transportation as one of the items of the cost of the school, a portion of which cost is chargeable against the United Counties. The United Counties, appellants, refused to accept this position. They say that, whether the continuation school had power or not to transport pupils from outside the school section to and from the school, there is no statutory authority to impose the cost, or any part of the cost, upon the counties either as part of the cost of education or as part of the cost of maintenance of the school.

In the case of high schools the legislation in this connection is explicit. By sec. 24 (h) of The High Schools Act (R.S.O., 1937, ch. 360, as amended in 1938 by 2 George VI, ch. 35, sec. 17), it shall be the duty of every board of high school trustees and it shall have power

to provide, where the board deems it expedient, for the transportation of resident pupils, and with the approval of the Minister, of county pupils, attending high school * * * and to pay for such transportation out of any funds available for the maintenance of the high school.

This statutory provision introduced in 1926 (ch. 67, sec. 6) only referred to resident pupils until the amendment in 1938 expressly extended the duty and power of high school trustees to county pupils, provided that in their case the board obtained the approval of the Minister of Education.

The Continuation Schools Act, R.S.O., 1937, ch. 359, says nothing whatever about the transportation of pupils to and from a continuation school—nothing about transportation of pupils who reside within the school section or of pupils who reside outside the school section. But the school board relies upon sec. 15 of the statute, which reads as follows:

15. Such of the provisions of The Public Schools Act in the case of a continuation school under the jurisdiction of a public school board as are applicable and are not inconsistent with this Act, shall be read as part of this Act.

That section was added as sec. 14 by an amendment to the statute passed in 1932 by sec. 16 of ch. 42 of the Statutes of that year. In the same amending statute, by sec. 13 thereof, the following section (now sec. 95 of the present Act) was added to The Public Schools Act:

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92a. (1) The board of a section or municipality may provide for the transportation of pupils residing in the section or municipality, as the case may be, to and from a continuation, high or vocational school situate elsewhere which such pupils have the right by law to attend, and for the purpose may co-operate with any other board.

(2) The cost of providing transportation under section 92 or this section shall be an expense to be included in the estimates for the current year.

That provision plainly deals with transportation of pupils “residing in” a school section or municipality to and from a continuation, high or vocational school “situate elsewhere.” Even if this provision be read as part of The Continuation Schools Act, I cannot see that it confers any duty or power upon a continuation school board to transport to and from their school, at the expense or partial expense of the county, pupils who do not reside in the school section but reside elsewhere within the larger area of the county. I cannot see any occasion for twisting and turning a section of one statute in an attempt to make it applicable to another.

Section 94 of The Public Schools Act (it was sec. 92 at the date of the 1932 amendment above referred to) was also invoked as applicable and not inconsistent with The Continuation Schools Act. That section, which has been in The Public Schools Act since 1925, reads as follows:

94. The board may provide for the transportation of pupils to and from a school maintained by it or which is used jointly by it and another board or other boards, and any payment made or any liability heretofore made or incurred for such purpose under agreement or otherwise is hereby validated and confirmed and declared to have been legally made or incurred.

That section is dealing with public school pupils attending a public school. It is contended that you unreasonably confine sec. 94 when you take it away from the context of sec. 86 which provides for the admission to the school of any non-resident pupil if the inspector reports in writing to the parent and to the secretary of the board affected that the accommodation is sufficient for the admission of such pupil and that the school is more accessible for him than the school in the section or urban municipality in which the pupil resides. But sec. 86 is known to have a very limited application for exceptional cases in public school attendance. Here again I do not think

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that sec. 94 is applicable to continuation schools to the extent of justifying a continuation school board charging against the county the expense of transporting pupils from all over the county to its particular school. At any rate, I am not prepared to grope my way through the numerous sections of The Public Schools Act in an attempt to justify the creation of the liability sought to be imposed by a local continuation school section against the whole county on the basis of legislation by reference. If legislation is desirable to accomplish what is sought, it can be easily and simply formulated and enacted by the legislature.

In this view of the matter, it becomes unnecessary to consider whether or not the provision of sec. 36 (4) of The High Schools Act, R.S.O., 1937, ch. 360, that where the council of a county and the board of a high school attended by county pupils from such county are unable to agree upon the sum to be paid for the cost of education of county pupils, the matter shall be referred to the judge of the county court for such county “who shall determine such sum,” precludes the Supreme Court of Ontario from entertaining an action for such a declaration as was made by the Court of Appeal in this case.

The appeal, in my opinion, should be allowed, the judgment below set aside and the judgment at the trial restored. As the appellant, as a condition of obtaining leave to appeal, undertook not to ask for costs against the respondent of the appeal to this Court, there should be no costs of the appeal. But I should give the appellant its costs in the courts below.

HUDSON J.—I agree that this appeal should be dismissed without costs.

Appeal dismissed without costs.

Solicitor for the appellant: Frederick Desmond Boggs.

Solicitors for the respondent: John Callahan & Co.