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Les diagrammes suivnnts illustrent la m^thode. 1 2 3 1 2 3 4 5 6 1.0 I.I 1.25 25 2.0 1.8 MICROCOPY RESOLUTION TEST CHART NATIONAL BUREAU OF STANDARDS STANDARD REFERENCE MATERIAL 1010a (ANSI and ISO TEST CHART No 2) LouO lA HIGH COURT OF JUSTICE :^ I :n re "the public school board of the city ')F TORONTO. AND THE CORPORATION OF THE CITY OF TOR()>s-'(). Copy of JudKment of Divisional Court delivered .'nd De- cember. 1<»01. F. E. Hodgins, for the Public Schoc. Biarci. Fullerton. K.C.. for the City Corporation. Mereuitii, C. J —Both parties have appealed a's'ainst the order of my learned brother Stre;" made on the 19th day of October-. 1001. on the application of the Pul)lii- Schiol Board ! for a peremptorx mandamus to the Corporation to levy and \ collect a sufficient sum to pay in full the eslimate of the Board I of the expenses of the schools under its charge for the year j* 1001, amountiuK in the whole to .*-);50,;it):i.tif.. the Corporation : having refused, improperly as the Board alles.es. to levy and collect more than SKil.l,-)!. for the levy and collection of which under the provis ns of sub-section I of section 71 of the Pub ic School Act i 1 Edward VII. Cap. :50) the Municipal Council of the Corporation passed its by-law on the lOth June. 1001. In the estimate (;f the School Board the expenses are classi- fied vnder forty-two separate heads, to twenty-seven of which objection was taken or various grounds, two ' them being objected to in toto an twenty-rve in part, the whole sum objected lo being t.iO.'JK?, and my learned brother Street held the objections to be well founded except as to *1S.7US..^)0. and granted the mandamus as to th:u sum. but refused to grant it as to the residue of the St)0.2]:5. and. as t have said, both _ parties appeal, each complaining of the order in so far as it it unfavorable to him. It will be convenient at this point to set ou< the items objected to and the result of my learned brother Street's judgment as to each of them: Sm8=8 8 SSSS8S8S888S8S r re- I E 359,^ ?S8S82^'g'5 ) ci « ?c — -r -r ?i 2i5 ^ I .£ -2: c i if .2 ■s^ § 88 8S o I c c o 5 ^^ = fe r|?jS§§g8|||SS382^|;s^5jg;*|pR fi — ■ ■ — 'T %f ^ ri ?i ?i *" ' "" " " ?3 D 8 re K -2 M £c 2 £ iS ? 2 ?a; C C '■/: m cj P3 31; " .t C IT J= 1; ■ 03 Is c_ i3re C >., ^ "^ wm C re Q en t/D ri r- ^ ?* E ^ ji 'r: ^ 2i o re'c o 3 c i-.^ c ^15 "' re -ji re u •o u > •C-S5 1, bf C3 o — M M 5C X C^ M -T w t^ X S: O — ' re i": t^ X r-. O ■— ^5 'C t^ CT. O M Mv' brother Street m coming to the '^""'^^"^i"" }''''.\^*'^ Srho..! Board was r,ot entitled to require the Mun apal C^'un iUo rle the full amount of the Estimate or Sa a oroceeded upon the ground that as to all.of the «42.H4l ob ^ . H tn Pvrent $s <)r,0 -Ti. the School Board was not entitled ;r :'u.re t< be^'ralsed by the Municipal CouncU because as he determined, it was intended to prov.de for pay.ng o fhe teachers in the employment of the School Board a. for alartes su^^Vwhich the Board was under no legal I'ab.Uy to nay and therefore to make provision for an increase in their salaries n the shape of a mere prospective voluntary pay- ment which they 'J.e. the School Board, might -u>^ -^^^^ L ij of fi^oir nliasure " It was, according to the view ex pr ssed bvmvtarnid brother, "as if they had asked for this Si 000 in order that they might present it to the teachers Is a bonus over and above the salaries for which the> had agreed to do the work of their position. I am with great respect, unable to agree with this view. It i in mv opinion b/ no means clear that upon the fac s and c rcumstancv . appearing in the documentary and other evidence before us the School Board ^f^er the pasMng of he resolution of the 6th March. 1901, ^^ -^;^^^J/^^^J^ ff^'; was not under a legal obligation to pay the larger salaries tor the payment of which the estimate for salaries was mtenr^-d to make provision. The material provisions of the agreement between the teachers S the School Board, by which they were re-engaged or the year loQl. rs far as they affect the question under con- Seration are stated by my .earned brother, and it is un- necessary for me to repeat them. It will suffice to point Tt that the agreement of the teachers is not simply to serve during the year in the school and at the salary set opposi e fo Ts name in the schedule, but that he will serve in that ^hool and at that salary -or at --h salary^ and in such school and division of the same as \heyj'-^- the School Board) may from time to time appoint, and that the con trac of the School Board, as Tread it, is to pay either the a?ay named in the schedule or that, whether it be higher o ewer, which the Board should from time to time fix as the salarv which the teacher was to be entitled to receive. w The object of framinK the contract in this way was. ds appears from the evidence of Mr. VVilltinson, Secretary- Treasurer of the School Board, to secure the re-engagement of the teachers so that their services might be available when the schools were opened at the bcginninK of January, after the Christmas holidays and at the tame time to leave to the inrnming Board the fixing of the salaries tor the ensuing year; instead of having thv;m 'ixed bv a board, the term of office of one half of the members of which, was on the eve of expiring. The duty of making provision for re-en ijaginn the teachers devolves on the board's Management Committee, and by its report made on the 2"th day of November. 11)00. and adopted by the School Board, it recommended •'that all teachers now on the regular staff be re-engaged except those who are marked :i or worse in their teaching or discipline by both inspector and principal." "That all teachers who are marked :{ or fair or worse in both teaching and discipline by the inspector and principal be notified that if ther^fis not some improvement \ithin three months from the date of the notice, they will be notified that their services will be dispe ^s 1 with at the end of June, 1901." It was in pursuance of this resolution that the agreement to which I have referred was enterei' into, ind agreements in the like form had bctn entered j ito between the School Board and the teachers in the years 1H!)7. ISOS. J,si)i> and 1000. According also to the evidence of Mr. Wilkinson, he Management Committee had no power to fix the salaries to be paid to the teachers who were engaged on their recom- mendation, and did not assume to do so, the practice of the Board being, as I l.ave mentioned, to leave that to be done by the new Board. For many years it had been the policy ind practice of the Boara to make yearly increases in the salaries of the teachers whu were re-engaged; the amount of these increases was not the same in every year; and there was, no doubt, no legal obligation resting on the School Board to make them in all cases or indeed in any case. The making of these increases was also not dealt with by the outgoing Board, but by the Board of the year for which the teacher was re-engaged. On the 1st February, 1900. the Board adopted, with some amendments, the report of its Finance Committee of the 2»th of the previous January recommending a scale of salaries for it'^ teachers, including principals of schools, and for its officers and serva ;s. According to this scale pro- visions was made as to certain classes of teachers for a mini- mum and maximum salary, and for an annual increase of salary from the minimum until tl m iximum was reached; in some classes the annual 'nrrease wa to be $.)0, in other* $24, »20, and .?t2, tespect wly. iilar ii! form to for 1900, the n a few cxcep- ■ teacl rs in ixed by •rding to . .ry, 1900. wi^ made in Municipal d a< to the Although, as 1 have said, an agiLt-meni that 1'.- 1901 was made with the itacht salaries paid in 1900 were not. save periuin- tional cases, those set opposite the names the schedule to the agreeme-it. but the the Board of 1900, vvhich included the iric the scale adopted by the resolution of the i and for the payment of these salaries pinvi the estimate submitted by the Hoard t. Council for i900, without any question beint pran' ty of the course which was adopted. The increases which the teachers who ei ng; had, therefore, when they signed the agreumei some reason to expect would be made in 1901 to ; u they had received in 1900, they will not receiv> if n brother Street's order stands. In 1901 the question of salaries was again consii: the Board, and a nev scale was adopted by resolution on the 6th Marc' 1901. Acting upon the view that, as had been the pract: :-. have said, it was for the Board of 1901 to fix the sa s the teachers for that year, the salary of each teac w fixed bv the Finance Committee in preparing the es- •«! t'l- for the year 1901. and upon the adoption of these usiimatts by the Board with the appendix containing the names of th' teachers and the salaries to which tl.. y were to be respective entitled for the year, it was a<'sum' I on all hands that the salaries so fixed were those which the teachers Aire t(! he entitled to receive and the Board was to be bound to pay. It is the difference between th'! salaries named in the schedule to the ai{reemcnl and the salaries thus fixed by the Board that my learned br )ther Street has tf -ited as a bon- 4 to the teachers beyond the sums which the Hi... d was leija entitled to pay them for their services. It IS. I think, unnecessary to decide whether i' < ' lew of my learned mother as to the strict leK;-' ' ; faith- fully rendered under the- . It was not. in my opinion, in- tended thai anv such i quiry should be entered upon by the Municipal Council. Such enquiries might and probably would involve the consideration of difficult question, of law and fact in orc'er to reach a conclusion, and if, as it is not unreasonable to assume might happen, it were wrongly con- cluded that with regard t.. all the teachers and employees^ or as to particular ones, the contracts were n..t binding, and the Municipal Council had, therefore refused to provide lor payment of the salaries, the result would necessarily hv e-ther that the School Board would be under a legal obligation with- out the means of discharging it. or be forced to applv or ;. mandamus to compel the Viinidpal Council to provid. na It had estimated to be necessary, with the possibilit, that a final decision might not be reached as to its rights until after the year for which the estimate is made had expired. It would seem to m •, therefore, a much more reasonable construction to give V he w\ct to hold, as I think we should hold that all that th Municipal Council has a right to ask is that which the Legislature has termed an "estimate shall >.hew that that the School Board has estimated the amounts required to meet the expenses of the scho.ns for the current year and tlje purposes for which the sums are required, in such a wav as to indicate that they are purposes for which the School' Beard ha'- the right to expend the money of the ratepayers, and that a hen that has been done the dutv is imposed upon the Municipal Council of raising by taxation (except in the special cases for which provision is made ny sec. 74). the sums required according to the estimate to meet the expenses of the schools for the current year. 8 A school board, like the corporation, is a corporate body, and the members of which it is composed are, like the mem- bers- of the council, elected by the ratepayers, though the electing body is different, and are answerable to their con- stituents for the manner in which they execute the important trusts which have been reposed in them. Upon the school board is imposed the duty of Making provision for the public school education of the children, and to it is given the right to determine, subject to no statutory limitation such as is by the Municipal Act imposed upon municipal councils as to the amount which may be raised by taxation within the vear, the amount proper to oe expended for school purposes" and within the scope of their powers. The discretion exercised by the School Board as to these matters the Municipal Council has no authority to question still less has it any right to substitute for the' judgment of the School Board, acting within the scope of its powers, its own judgment, even though it may be apparent that the School Board has not exercised -its discretion wisely, for the action it has tak n and for an unwise discretion it may have exercised, the members of the School Board are answerable, not to the Municipal Council, but to their constituents. I venture to think that the object of the Legislature in providing as it has done for the raising of the money required for public school purposes was simply to avoid the expense and inconvenience to the ratepayers of a double system for the imposition and collection of the fates, one by the muni- cipal councils of municipal rates, and the other by the school board of public school rates, and in confirmation of this view I may point out that by the Public Schools Act, 1.88.5, (48 Vict ch. 49, sec. 40, sub-sec. .{) the same system was applied to rural school sections, the trustees of which before then had the option of levying and collecting their own rate or of re- quiring the municipal council to collect it. What I have indicated as my opinion has of course no application where bad faith on the part of the school board is shewn, such as an attempt under cover of a general esti- mate to provide for an illegal expenditure, and I have no 9 doubt that in a case of that kind the Court would not permit the extraordinary remedy of a mandamus to be used to com- pel the levying of a rate to provide money which it was proved was intended to be used for such a purpose. There is still another ground upon which I think the posi- tion taken by the Corporation is untenable. Assuming than an action brought by a school teacher against the School Board to recover salary on the basis of the scale fixed by the resolution of the 6th March, 1901, to which the provisions of sub-sec. 1 of sec. 81 were pleaded as a defence, must fail because the agreement sought to be en- forced was not in writing signed by the parties to it and under the seal of the corporation, it by no means follows that, at all events in the ciicumstances of such a case as this, a school board would not be justified in not setting up such a defence and in paying the teacher the salary which it had deliberately resolved to pay him and had by resolution fixed as the remuneration he was to receive and on the faith of receiving which he had, it might be, continued to serve. In my opinion, the board would be justified in refusing to set up the technical defence which the statute, on the assump- tion I have mentioned, has armed it with, and in paying the salary claimed, and in my view no Court ought to or would at the instance of a ratepayer, if the board had determined to take that course, restrain it from taking it, and it follpws, if this be the correct view, that the municipfal council would not be justified in refusing to provide the money to enable the school board to pay the salary fixed by its resolution. If, as was the opinion of my learned brother, it was still open to the School Board to put itself under a legal obliga- tion to pay the salaries according to the scale of remunera- tion which it had adopted by the resolution of the 6th March, 1901, I do not understand upon what principal, having, as its estimates shewed, determined to pay according to that scale, the Board should have been denied the right to require the Municipal Council to levy a rate sufficient to enable it to carry out its intention, even if the entering into of a -JJ IL ' i 10 formal contract with the teacher were necessary to justify Oie payment being made, for it is not to be assumed that the «chool Board would not before expending the money of the Ratepayers, enter into the formal .contract which upon that hypothesis must be entered into. By my learned brother's order the Corporation has been required to provide the salaries, amounting to $9,100. of sixteen teachers, whose salaries were fixed in precisely the same way as the increases which are in question were pro- vided for. the only agreement with these teachers being that thev were to receive such salaries as the Board might from time to time appoint. I am. with respect, unable to see why. if it was proper to give effect to the resolution and estimate as to the one, effect should not have been given to them as to the other. Upon the whole, for the reasons I have given. I am of opinion that it was the duty of the Municipal Council to levy and collect the full sum which' is shown by the estimate of the School Board to be required for the payment of salaries for the vear 1901. and that my learned brother s order should be varied by substituting for the sum $8.929.2.5 the sum of $42,841. The next item to be considered is number t2, "ordinary vearly repairs and alterations to school property under the Act based on expenditure of the past ten years. S2o,000. Of this-sum «20.000 only was provided for by the Mumcipal Council', and my learned brother Street has held that no proper estimate was made of the expenses under this head, and that the Municipal Council for that reason would have been justified in refusing to levy and collect any part of ,t, and therefore cannot be compelled to raise the .ScOOO in dispute. It follows from what, in dealing with the item of salaries, I have stated to be my opinion, that this estimate (subject to an observation which 1 shall afterwards mane as to it w*s a sufficient estimate to cast upon the Municipal Council the duty of levying and collecting the whole $25,000, and I should be of the s^me opinion even if, as was contended, the estimate ought to show the basis upon which il was made. 11 The School Board has under its charge upwards of forty- five school houses, of various ages and descriptions, &nd it has been its practice in the past to defer until the summer holidays the "making of necessary repairs to them. The necessity for some of the repairs which it might then be found to be required might not be known or indeed have arisen at the time when the estimate for the year is required to be submitted. The Finance Committee of the Board had con- sidered the question of what sum would probably be needed during the year, more than nine months of which had yet to run, and the Board had considered and adopted the esti- mate which the Committee had made. The Committee and the Board had the experience of many past years to guide tfiem in making their estimate as to the probable require- ments of the >»ear, and the estimate which they submitted was based, as it shewed on its face, on the experience of the latter ten of those years, and beyond all this they procured and furnished to the Municipal Council, when called on by its Board of Control to give further information, a detailed statement of repairs which it had been determined should be made, shewing the nature of the repairs to be made on each building which was to be repaired, and covering thirty-eight printed pages, and yet because the probable costs of these repairs was not given separately, it was contended by the learned counsel for the Corporation that an estimate such as as che Act required had not been submitted. Had the word "alterations" not been used in the estimate under consideration, I should have been prepared to hold that as submitted it was sufficient, but it may be that the use of that word made it uncertain whether provision was not being made for additions to school houses, and therefore for a class of expenditure as to which the Council had, under sub-sec. 1 of sec. 7G, the right to refuse to raise the sum re- quired. It is unnecessary, however, to consider this point further, because, by the detailed statement to which I have referred, shewing as it did that repairs only were intended, all difficulty on that score was removed. It is difficult to see what more satisfactory basis could have been adopted for this estimate, when one considers the 12 circumstances under and the pi ^ses for which the est ate was made, and especially the tact to which I have referred that it was extremely difficult, if iiot practically impossible, to determine in advance with any degree of exactness, what the requirements of the year would be. The basis on which ihe estimate was made was besides one, the materials for verifying which were ii; the pot,session of the Municipal Council, all the accounts, books, and vouchers of ih» School Board having been in the previous years (since 1885) audited and reported on by the municipality's own auditor, sec. G.5, sub-sec. 1 1. I am of opinion, therefore, that it was the duty of the Municipal Council to levy and collect the whole $2.5,000, and that my learned brother's order should be varied by adding the 15,000 in dispute to the sums directed by it to be levied and collected. The next item to be dealt with is number 13, "dais and railing in board rooms and counters, partitions, screens, etc., in office, ste appendix E, $6,000." Appendix E gives the fu.^her particulars as to this item, that "it is to carry out plans approved by the City Council of last year, for which they included the item in a money by-law." The School Board has rented from the Corporation a part of the new municipal building for use as a board room and for offices, for which its pays a rental of $1,800 per annum, and it is to provide for the furnishing and fitting up of it for these uses that it is proposed to expend the sum of $6,000. Having gard to the fact, which is not in dispute, that plans and an estimate of the cost of what is proposed to be done were approved by the Municipal Council of 1900, and that a by-law was in that year provisionally passed and sub- mitted to the vote of the electors for borrowing $6,000 to defray that cost. i( 's not, I think, open to the Corporation to complain that the estimate as to thii item of proposed expenditure is not a sufficient estimate, .vithin the meaning of th^ Aci, if indeed it would otherwise nave been open to that objection. 13 N( • IS the estimate open to objection as being for pur- poses coming within the provisions of sub-sec. I of sec 70 for It clea ly does not provide for expenditure of the class with which that sub-section deals. The ground upon which my earned brother refus.d to direct this sum to be raised appears to have been that there is no direct authority in the School Act for the expenditure of money in furnishing board rooms. '!.i' '/".' ^^/^ in. terms no such authority is conferred by sec. 05 of the School Act. but that I venture to think with all respecc is not s-fficient to justify the conclusion that a school board ua.. no authority to make su:h an expenditure. « The enumeration of powers of trustees which sec. (io con- tains u plainly not intended to be ex.^austive. The section as Its heading shows deals, primarily at all events, with duties of trustees." No direct authority is given by the section to pay its secretary and treasurer, its officers and servants. Miough the duty is imposed and the power con- ferred to .oinb them. So with regard to the important duties ri with in sub-sections .;, 4. an^ .5. no direct authority .s given to expend the money required for per- forming these duties, and none was, in these cases, necessary because, taken in connection with the provisions of sub-sec 9 the requiiite authority is to be implied, for only b • im- plying it can the duties imposed be performed. H„tl" I'^u r^""^'- ^'^''''^- "•' *" '"^-^^'^- ^' 't is made the duty of the trustees to fix the place of meetings of the boa.d here is to be implied. I think, the power to make p-ovision or securing a place of meeting and to make such expendi- tures as may be necessary for that purpose. There would, in the case of a public school board such as that of the City of Toronto, be no difficultv in imnlving a power to rent premises for thi. purpose, while in the case of a rural school section it is possible that no such implied power might be held to exist. mpiiea ^ - ■ ."fUIJ. I 14 r/rn^iv^o-^roid ^n urban .untci^a^^^^^^^^ ^^^ - poration. and is invested -^^^^ '.J^a^ ar neceL'ry'for sessed by corporations «« f^'^^ ^7. f^Hbothe Interpreta- carrying out the purposes of the Act, s,e ^iso tion Act. R. S.O. ch. I. sec. 8 (25). ment are to be performed. u m.v he t, it the scale of inaKnificence upon which this r'""„r:i.r;haTo,'':K e "uS in ^ich .he board surrounding, but that QusBtion ts not lor Council or for tlie Court to deal with. Assumits «ood taith on the part „. the S, ' ol Bj^'^^ <-■; i„ .cod faith i- »-„2»t'r,'':a'll'ed"'uCn .0 »ive%"ason Jor Council nor to 'Jf C°url ,s it ca po ^^^ ji^„,„„„„>. •ptrXrhe'u.ls.ar^r'e'Ta: vested in it and stil, U. to 'ustiry or delend the action which ,t has taken. There i, in my opinion, therelore, no ground upon which tbelai^'n o. the Vlu-nicipal Counc. i" ™ruj™ to ra - .f._, sum ol 8C.000 can be sustained. ""' 'f .^ ™7„'"'„so to the rf "wSi: Z ;hT:fd^r>dtrertrbc .vied and col. ""The small Hen. o, ."O.^f-'VaTbren SaUolSTor certificates, should not. ]. ^["f' ™,'' i.^n for holding that may be justified. 15 II appears to have been taken for granted that the $50 deduction was in respect of medals, though what ground there is for that assumption I have not been able to discover. It would seem that the medals and certificates are in the nature of prizes for the pupils, or in lieu of prizes. Authority is given by the Act to provide prize books, and it was under the idea, perhaps a -nistaken one, that this authority was a justification for giving :nedals and certificates, that the practice of giving that kind of reward of merit has been adopted. Hov ever that may be, I do not see why such recognitions of the standing and merit of pupils may not. under the general powers of schools boards, be provided at the exrense of the ratepayers. If, as appears to have been conceded, it was lawful to provide certificates printed or gra en on paper, 1 do not see why so moderate an expendi- ture as is provided for testifying on the more f aduring sub- stance of a medal to the standing or merit of a pupil may not be justified. There remain, in orde- to dispose of the appeal of the School Hoard, to be considered the items intended to provide for liabilities incurred in 1900, the payment of which was deliberately held over until the present year. My learned brother Street decided that these payments do not form part of the expenses of the schools under the charge of the Board for the current year, and should not therefore have been in- cluded in the estimate, and with that view I agree. The Act makes no e.o„,^r{,ndia.c..a^ by those learned Judges there 'SJ.*^-ted in "^u J ^^ iiiiiiiil lTnX«'r.Sr30T£^ «%r;"L-i:.^l».n^o .be ellec. „r;Sba le.,la.,.,n --^J-'- •'Ir^rn. ,u?s! school trustees had the "f ' °' °f'l'"^j j^, public .chool ,i„„ the a."o„n. wltKh was o be '- ^J^.,^''^^,,,, „„„, rporSe"dtraut\™iLrto co,,ect and hand ove, that LL 17 \ „, while the latter authorities were under an absolute trustees." See also Re Board l Education of Napanee and Town of Napanee n«Hl). ill Gr. at p. H»ft. And it may well be that expressions of opinion as to the And It may *^ ' . ^^^ view that there was determining what those requisites are. ----"i^^aJu-L^^r^^i^rsr rnt:oran':st.ma;rs!ch:s. accordtn. to these expressions of opinion, the statute makes provision for. I have dealt with the case on the assumption that the ■ nc of the statute of 1<.)01 are those apphcable, and Provisions ot the siaiuie vj" , r ij c n ISOTch 2!t'2 new Act became operative. The result is that, in my opinion, the appeal of the School 18 MacMahon. J: -During the arKumeiit 1 entertained the opinioii thai the increase in the salaries of the teachers, after the formal contracts entered in December, lOOO. by them with the School Board, was. as expressed by Mr. Justice Street, in the nature of a bonus over and abov- the sahnies for which they had aKreed to do the work of their position, but, having regard to the provisions of the contract, it is clear that the salary is not absolutely fixed by the amount placed in the schedule opposite the contra* tin teacher's name, but is to be at that salary 'Or at such salary and in such school and division of the same as the School Board may from lime to time appoint." so that what may be called a provisional contract was entered into by the teacher, and the incoming School Board couid increase or reduce the salary mentioned in the schedule according lo the school or division in which such leachfT was pi. >d. When one speaks oi an "estimate" for work to be per- formed, that usually includes a somewhat detailed descrip- tion of the work and materials lo be employed in its con- struction and the cost thereof. But, as pointed out in the judgment of his Lordship the Chief Justice, where estimates are furnished by the School Board, that particularity is not required. I agree with the disposition of the appeal and cross-appeal made in the judgment of the Chief Justice. I.ount. J.:— I agree. /J 1 mm '^