L.N. a minor, by his Next Friends Craig Nesty and Lisa De Freitas v Sylvia Jno. Baptiste as Principal of the St. Mary's Academy

JurisdictionDominica
JudgeJosiah-Graham, J
Judgment Date10 March 2023
Neutral CitationDM 2023 HC 10
CourtHigh Court (Dominica)
Year2023
Docket NumberClaim No. DOMHCV2022/0180
Between:
L.N. a minor, by his Next Friends Craig Nesty and Lisa De Freitas
Claimant/Respondent
and
Sylvia Jno. Baptiste As Principal of the St. Mary's Academy
Defendant/Applicant

Claim No. DOMHCV2022/0180

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CIVIL DIVISION

Appearances:

Mr. Lennox Lawrence and Mrs. Kathy Buffong-Royer for the Defendant/ Applicant;

Mr. Justin Simon, KC leading Mrs. Hazel Johnson for the Claimant/ Respondent.

Application to set aside and/or revoke order granting leave to apply for Judicial Review

Josiah-Graham, J
1

— This is an application for an order setting aside and/or revoking an order dated 24th October 2022 granting leave to the Applicant, L.N, by his next friend, Craig Nesty and Lisa de Freitas, to apply for Judicial Review.

2

To assess the Respondent's application to set aside the grant of leave, a background is set out.

BACKGROUND
3

L.N., a minor, represented by his next friends Craig Nesty and Lisa de Freitas, applied for leave to apply for Judicial Review on 30th September 2022. This application was against Sylvia Jno. Baptiste (“the Principal”) in her capacity as Principal of the St. Mary's Academy (“the Academy”) and six other Respondents being members of the Board of Management of the Academy (“the Board”). L.N. challenged their decision refusing his admission to the Academy for the academic year 2022/2023 following his results from the Grade Six National Assessment. L.N. alleges that the Academy's selection process was “unreasonable, irrational and unfair”.

4

L.N., through his parents and next friends, wrote to the Principal querying her decision not to admit him into the Academy 1 and asking her to provide reasons for his rejection. The basis for the query was that he graduated from the Pioneer Preparatory School in July 2022 with honours, his older brother attends the Academy and is an honour student, he lives in the catchment area of the Academy and the Academy is the alma mater of his father, paternal and maternal uncles.

5

The Principal replied 2 to L.N.'s parents via letter dated 21st July 2022 and informed that L.N. was amongst a large number of students in the Roseau catchment area who selected the Academy as their first choice, that the selection process employed is “fair, reasonable and objective and we try as best as possible to ensure that the students we select for every given year are a reflection of the wider Dominican demography 3. Although the Principal did not provide reasons why L.N.'s application was not successful as his parents requested, she indicated that consideration is given to a student's performance at the examination, the availability of space, whether their siblings or relatives previously attended the School, and that while the School is Catholic, it enrolls 25% of non-Catholics, and the reality is that the School “simply cannot accommodate everyone”.

6

Being aggrieved, L.N. sought redress by appealing the decision communicated from the Principal to the Education Appeals Tribunal of the Ministry of Education (“the Tribunal”), the body established by legislation to review admission decisions by the Principal pursuant to regulation 23(2) of the Statutory Regulations Order 7 of 2011 of the Education Act, Chapter 28:01 (“the Regulations”) which provides thus:

‘R. 23(2) Subject to these Regulations, a person who is aggrieved by the decision of a principal to refuse admission to a child may, in writing to the Education Appeal Tribunal, appeal against that decision and it shall be the duty of the Tribunal to dispose of the appeal within seven days of the date of the hearing”. [emphasis added]

7

The Permanent Secretary in the Ministry of Education, Mrs. Chandler Hyacinth replied 4 to this correspondence indicating that the “Appeals Tribunal is not presently constituted but the Ministry is presently working on rectifying this issue”. Because the Tribunal is not presently constituted, Mrs. Hyacinth recommended that L.N.'s parents complain to the Chief Education Officer as provided for in section 84 of the Regulations for his intervention “prior to further recourse” 5.

8

L.N.'s parents then wrote to the acting Chief Education Officer, Dr. Jeffrey Blaize as per Regulation 84. The Education Officer mounted an investigation into the complaint and communicated his findings to L.N.'s parents in writing that he is “satisfied that a fair and unbiased procedure was employed in student selection so as not to disadvantage any particular student. As a selection process, simple random selection provides each member of the identified population an equal, none zero chance of being selected”.

9

In addition, Dr. Blaize referred L.N.'s parents to their right to an appeal of the decision to the Tribunal as provided for in section 23(2) of the Regulations and urged that they consider “the second-choice school option for student placement as provided for in the placement option form supplied by the Ministry of Education”.

10

Not surprisingly, L.N.'s parents were also dissatisfied with Dr. Blaize's conclusion and sought some avenue of redress. They brought this action for Judicial Review against the Principal, and the Board. Leave was granted ex parte on 24 th October 2022.

11

In an affidavit in response which was not before the Court when the application for leave was granted, the Principal swore that L.N.'s application was misdirected and misconceived in that the decision to refuse the application for admission was in fact her decision as Principal of the Academy and was not taken by the Management Board. This affidavit was filed after the decision for leave was determined. The Principal also deposed in her affidavit the leave granted to apply for Judicial Review would be a detriment to the good administration of the School and also result in floodgates for future applications since the L.N. was not the only student who passed the Grade 6 National Assessment whose application had to be refused for want of space, or whose application has been refused in the past. 6

12

Following this affidavit response by the Principal, but after the grant of leave, L.N. commenced his claim for judicial review on 7 th November 2022 against the Principal only.

13

On 18 th November 2022, the Principal filed the instant application. The Principal makes the same contentions as contained in her letter in response dated 21 st July 2022. She also asserted that the decision to refuse the application for admission was hers only and that the reason for the refusal of L.N.'s application was the unavailability of space and that L.N was so informed. She contended that her decision was lawful, as the Principal of the secondary school she can refuse admission because of the unavailability of space.

14

On 2 nd December 2022, L.N. responded with an Affidavit in Opposition to the Application to set aside the leave order. L.N. repeated and relied on the contents of the affidavits in support of the application for leave to support his opposition to the Principal's application to set aside the leave granted for Judicial Review.

15

On 9 th December 2022, the Principal filed an application to dismiss the substantive application. The applications to dismiss the substantive application and to set aside or revoke the grant of leave for Judicial Review was heard on the 19 th December 2022.

16

I have refused the Principal's application to set aside the grant of leave. The reasons for this decision are set forth below.

THE PRINCIPAL'S SUBMISSIONS
17

Learned Counsel for the Principal contended that the principal of the Academy, is not the proper party to this action on the ground that the principal of on assisted private school is not a public body or authority against whom Judicial Review can be sought or obtained and accordingly, the grant of leave ought to be revoked or set aside. Counsel submitted that it is a well settled principle of law that judicial review is a remedy against public bodies or authorities, such bodies being responsible for performance or undertakings compatible with the duty of a public body or authority 7.

18

Counsel relied on the case of Public Service Association v. Public Service Commission et al SLUHCVAP2010/0013 [7] where it is stated that “Judicial Review proceedings are proceedings in public law essentially to ensure that a public body complies with the law”. 8

Heavy reliance was also placed on sections 23(2), 84, 160 and Part X on Appeals (sections 148 to 156) of the Education Act, Chapter 28:01
19

Counsel also submitted that L.N.'s complaint to the Chief Education Officer and his subsequent investigation and report regarding his findings invoked the jurisdiction of the Ministry of Education as the body responsible for the selection process at schools and accordingly, the application for judicial review is brought against the wrong party.

20

Counsel further contended that L.N.'s parents were referred by the Chief Education Officer of their right to an appeal of his decision to the same Appeals Tribunal as provided for in section 23(2) of the Regulations. Counsel therefore submitted that L.N. should appeal the decision of the Chief Education Officer to the Tribunal, that being an available remedy, following the steps already taken by L.N. This Tribunal, however, is not constituted. Counsel's response to this fact is that as the Minister of Education has not yet responded to the application for an appeal neither has there been a refusal to carry out the appeal and as such the remedy remains available to them. Moreover, Counsel also contends that should the Minister refuse to constitute the Tribunal, only then would an appropriate remedy be to instead seek an order of mandamus compelling the minister to constitute the Tribunal.

21

Counsel did not address L.N.'s concerns about the Academy's selection process.

L.N.'S SUBMISSIONS
22

L.N.'s Learned King's Counsel urged...

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