By Richard Bell
Three residents of Musquodoboit Harbour have joined together to file a Notice for Judicial Review with the Supreme Court of Nova Scotia challenging the decision by the Nova Scotia Minister of Education and Early Childhood Development and the Nova Scotia Minister of Transportation to locate the proposed school combining Eastern Shore District High and Gaetz Brook Junior High in the East Chezzetcook Industrial Park.
The applicants are asking for the court to send the decision back to the Minister of Education and Early Child Development and to the Minister of Transportation with instructions on how to redo their work in light of the deficiencies identified by the court.
The first court hearing will take place on April 11, at which a judge will set a trial date for the judicial review and deal with whatever procedural issues may arise. If EECD should choose to begin construction before the completion of the judicial review process, the applicants “may seek an interlocutory injunction” to allow the completion of the judicial review.
In the Notice for Judicial Review, the three applicants raise a number of issues that the Cooperator reviewed in the March 2021 issue, starting with issues dealing with the Ministers breaching “procedural fairness.” The Minister of Transportation failed to provide the public with information about the site selection process or the proposed site in the Eastern Shore Industrial Park before making a recommendation to the Minister of Education, as required under EECD’s site selection rules. (See BACKGROUND--Churchill’s Elimination of Public Input to Site Selection.)
The applicants also assert that the Minister of Education “owed the Applicants a duty of procedural fairness and the Minister failed to meet this duty by failing to provide notice, an opportunity to comment, and reasons for his decision to the Applicants.” In addition, the Minister of Education announced the site decision in the absence of the Minister of Transportation informing the public about the site selection process and the choice of the final site.
Breaching the Minister of Education and Early Childhood Development’s duty of procedural fairness also comes up because the Minister failed “to disclose a potential conflict of interest between the Member of the Legislative Assembly for the Eastern Shore Riding and an owner of lands adjacent to the industrial park at East Chezzetcook, thereby giving rise to a perception of bias in the decision-making process.”
The applicants also argue that the decision by the Minister of Education and Early Childhood Development’s was “unreasonable because he had fettered himself to a single outcome in the decision-making process for the school site selection” Decision-makers are supposed to exercise independent judgement in reaching their decisions. The “fettering of discretion” happens when a decision-maker has already decided on an outcome before the decision-making process gets underway.
Because the government has released almost no information about the entire site selection process, it is impossible to know how thoroughly officials at EECD and TIR examined any alternatives to the industrial park site.
However, there is some evidence that one or both Ministries had engaged in planning for the industrial park site before the announcement on April 30, 2018 that EECD would replace Eastern Shore District High.
In their supporting affidavits, the three applicants describe the negative effects of the industrial park decision-making process on their businesses and families. Leanne Wrathall has lived in Musquodoboit Harbour for roughly 30 years. She and her husband own several properties in the area, and have two children in public school, at least one of whom might go to the consolidated school. She includes concerns about negative impact on her children of losing access to the many resources in Musquodoboit Harbour, “such as the library, the rink, walking trails, convenience stores, restaurants, ball fields, community centre, a café, and a bakery.”
Wallace Stephen owns a one-third share of Musgo Convenience, which he helped launch in 2016. In his affidavit, he notes that he chose the location in part because it was in walking distance of the high school, and that moving the high school elsewhere would cost the store 15 to 20 percent of its income. He also objected to eventually having his now young grandchildren being sent to a school without the community resources available within Musquodoboit Harbour.
Matthew Randell grew up in Chezzetcook and has lived in Musquodoboit Harbour for the last five years. He believes that moving the school to the industrial park would have a negative effect on his children because they would be cut off from the community resources already available in Musquodoboit Harbour.