DECISION 2016 NSUARB 150 M07196 NOVA SCOTIA UTILITY AND REVIEW BOARD IN THE MATTER OF THE EDUCATION ACT. - and -
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1 DECISION 2016 NSUARB 150 M07196 NOVA SCOTIA UTILITY AND REVIEW BOARD IN THE MATTER OF THE EDUCATION ACT - and - IN THE MATTER OF AN APPLICATION by the ANNAPOLIS VALLEY REGIONAL SCHOOL BOARD for the approval of the number and boundaries of the electoral districts BEFORE: Roland A. Deveau, Q.C., Vice Chair Kulvinder S. Dhillon, P.Eng, Member APPLICANT: ANNAPOLIS VALLEY REGIONAL SCHOOL BOARD Lavinia Parrish Zwicker, Chair HEARING DATE: July 19 and August 9, 2016 FINAL SUBMISSIONS: August 11,2016 DECISION DATE: August 17, 2016 DECISION: Application approved.
2 INTRODUCTION [1] The Annapolis Valley Regional School Board ( Applicant or School Board ) applied to the Nova Scotia Utility and Review Board ( Board or UARB ) on June 22, 2016, to confirm the number of electoral districts and elected school board members at 13. On August 2, 2016, it amended its application to reduce the electoral districts from 13 to 10. In addition to the members elected from each electoral district, there is also one African Nova Scotian school board member elected at large and one First Nation s representative appointed by the Minister. The latter two members are not under consideration in this Application. The Applicant requests that the Application be implemented in time to take effect for the school board elections to be held in conjunction with the municipal elections slated for October [2] The Education Act, S.N.S , c.1 ( Act ) requires every school board to make an application to the Board every eight years to confirm or change the number and boundaries of the electoral districts in the school district or school region. Section 43 states: 43 Subject to clause 18(1 )(d), in the year 1999 and every eighth year thereafter, every school board shall apply to the Utility and Review Board to confirm or change the number and boundaries of the electoral districts in the school district or school region. [3] The Notice of Hearing was advertised in various publications as follows: Aurora Monday, July 4, 2016 Annapolis Valley Register Wednesday, July 6, 2016 Valley Journal-Advertiser Wednesday, July 6, 2016 Valley Harvester Thursday, July 7, 2016 [4] The Notice invited the public to advise the Board of their objections in advance of the hearing. The Board did not receive any letters of support or objection. There was one preliminary request to speak by the Municipality of the County of Kings
3 -3- ( Kings County ), but ultimately Kings County did not appear on either of the two hearing dates. [5] The initial hearing was held on July 19, 2016, by telephone conference call, at the offices of the Board and the School Board office in Berwick, Nova Scotia. The Applicant was represented by Lavinia Parrish Zwicker, School Board Chair, and Margo Tait, School Board Superintendent, as well as other school board members and staff. No members of the public were present. Due to the reasons noted below, the hearing was adjourned and continued on August 9, [6] The School Board s region comprises Annapolis County, Kings County and the Municipality of the District of West Hants, including all Towns within these municipal boundaries. [7] Recently, upon applications by individual municipal units, the Board issued decisions which impacted the current application. The UARB, in its Decision dated June 10, 2015 [2015 NSUARB 154], dissolved the former Town of Hantsport to be combined with West Hants. In another UARB Decision regarding Kings County, dated July 11,2016 [2016 NSUARB 124], the Board ordered a reduction in the number of polling districts and councillors from 11 to 9. The Board also approved the proposed boundaries of the new nine polling districts. The Kings County application had also been delayed by the Hantsport matter. [8] Further, the UARB s Decision, dated April 13, 2016 [2016 NSUARB 44] respecting West Hants municipal polling districts was appealed by the Municipality to the Nova Scotia Court of Appeal. The Court dismissed the appeal, and confirmed the UARB s Decision, in a judgment dated July 13, 2016 [2016 NSCA 57],
4 -4- [9] The Board s Decision on Kings County and the Court of Appeal judgment on West Hants were issued after the School Board filed its original application with the Board. For the above reasons, the UARB provided an opportunity to the School Board to revise its Application, if it wished. The UARB, accordingly, adjourned the first hearing. [10] After considering the Board s Decision for Kings County and the Court s judgment on West Hants, the School Board filed a revised application on August 2, 2016, including a report from its consultant. The School Board filed a supplemental revised application on August 4, 2016, to add the former Town of Bridgetown to School Board District #2. This supplemental revised application ( Application ) is the Application discussed in this Decision, unless noted otherwise. [11] The school board applications typically follow the Board s latest decisions confirming or altering the municipal polling district boundaries of its constituent towns and municipalities. In fact, the Act specifically provides that in setting the number and boundaries of a school board s electoral districts, the Board and the Applicant must have regard to the existing boundaries of municipal polling districts or town wards within its region. This, among other reasons, provides for the more efficient conduct of school board elections and greatly reduces costs. 2.0 EVIDENCE [12] Table 1 below shows the School Board s current 13 electoral districts, which are based on the student enrolment and the most recent elector statistics (2012) for the affected towns and municipalities within the Applicant s boundaries:
5 -5- Electoral District Number of Students Number of Electors Amount or Percentage Variance # % 1 1,041 6, ,363 (1,587) (27) ,133 (811) (14) 4 1,342 6, ,239 1, ,621 6, ,738 6, ,836 8,715 2, ,371 (2,573) (43) ,381 1, ,075 4,453 (1,491) (25) ,178 (766) (13) 13 1,112 4,841 (1,103) (19) Total number of electors: 77,266 Average number of electors per electoral district: 5,944 [13] The original application filed June 22, 2016, proposed to confirm the current 13 electoral districts and their boundaries. [14] However, the Application filed on August 4,2016, proposes a reduction from 13 to 10 electoral districts, with details as noted in Table 3 below (including the revised filing of August 11, 2016): Electoral District Number of Students Number of Electors Amount or Percentage Variance # % 1 1,030 8, ,263 8, ,577 8, ,825 (1,709) (23.1) 5 1,887 8, ,958 7, ,127 (407) (5.9) 8 1,393 7,433 (101) (1.9) 9 1,341 7, ,379 6,944 (590) (8.3) Total number of electors: 75,742 Average number of electors per electoral district: 7,574
6 -6- [15] The hearing reconvened on August 9, 2016, and was held by telephone conference at the offices of the Board and the School Board offices in Berwick, Nova Scotia. The Applicant was represented by Lavinia Parrish Zwicker, School Board Chair, Roberta Kubik, the new Superintendent of the School Board, and Margo Tait, the former Superintendent. Other School Board members and staff were also present on the call. No members of the public were present. [16] In its Application, the Applicant described the process to develop the latest proposed number of electoral districts and the boundaries. [17] The Application included the report prepared by Richard G. Ramsay Management Consultants Inc., which explained the process used for public consultation and input. The consultant considered three options: the status quo (i.e., 13 electoral districts), and changing the number of electoral districts to 15 or 10. Mr. Ramsay provided reasons why the option with 10 districts is the most suitable and is recommended. The School Board accepted his recommendation and filed its Application for 10 electoral districts. [18] During the hearing, the UARB noted that the proposed average number of electors per school board district, as noted in the Application, was 7,534. This value is incorrect and should be 7,574. The Applicant agreed to update the tables in its Application and consultant s report with the correct value of 7,574. The corrected tables were provided to the UARB on August 11, The UARB considers this change is not material to the overall Application.
7 -7- [19] The Applicant indicated that notice of the reconvened hearing was posted to the School Board web site and also advertised in the Aurora, Journal-Advertiser, Valley Register and Valley Harvester. 3.0 FINDINGS [20] Section 44 of the Act sets out the Board s powers and the matters which it must consider in determining the number and boundaries of electoral districts: 44 (1) In determining the number and boundaries of electoral districts, the Utility and Review Board shall make such decision as in its opinion is just, and is not restricted to the proposal advanced by a school board in its application. (2) The Utility and Review Board may reject an application and require a school board to re-apply within such time as the Utility and Review Board directs, and may give such directions for the re-application as the circumstances of the case dictate. (3) In determining the number and boundaries of electoral districts, the Utility and Review Board shall give consideration to (a) (b) (c) subject to subsection 13(6), ensuring as nearly as practical equal numbers of electors in each electoral district; population density; distribution of the school-age population; (d) the principal language of instruction of the school board and language of instruction of the school population in areas of the district; and (e) any other relevant matter that in the opinion of the Utility and Review Board affects the necessity, expediency or justice of the order sought. (4) The Utility and Review Board shall, in setting the numbers and boundaries of electoral districts, have regard to the existing boundaries of polling districts and wards. Note that s. 13(6) referred to above only applies to the Conseil scolaire acadien provincial. [21] A review of past municipal polling district and school board electoral district decisions shows that the primary consideration in such reviews has been voter equality. In emphasizing the need to achieve relative parity of voting power, the Board has been influenced by recent court cases and provincial legislation, including the decision of the Supreme Court of Canada in Re Electoral Boundaries Commission Act (1991), 81 D.L.R.
8 -8- (4th) 16 [also referred to as the Carter decision], which dealt with provincial electoral boundaries created by statute in the Province of Saskatchewan. [22] The Board has previously determined that a target variance of ±10% from the average number of electors per district is the appropriate guideline to use in reviewing relative parity of voting power for municipal polling districts and school board electoral districts. Section 44(3)(a) of the Act directs the Board to give consideration to "ensuring as nearly as practical equal numbers of electors in each electoral district". [23] While the Board will permit variances up to ±25%, the outer limits of this range should only apply in exceptional cases, where the affected municipality or school board provides detailed written reasons showing that population density, community of interest, geographic size, or other factors, clearly justify the necessity of an increased variance within a district. The larger the proposed variance, the greater the burden on an applicant to justify the higher variance from the average number of electors. In most cases, however, the Board expects municipalities and school boards to meet a target variance of the number of electors in each district which is within a ±10% range of the average. [24] One of the Applicant s districts has a variance of %. In his report, Mr. Ramsay provided the following justification to support this variance: This scenario achieves significant voter parity in nine of the 10 proposed districts. Only one district is outside the 10% variance, District 4 [-23.1%]. The data in Kings County does not lend itself to another option that would achieve voter parity. The Town of Berwick could be allocated to another district, but would only shift the voter parity issue to another district. The fact of Kings County numbers being so precise and reducing from 11 districts to nine, hampers any other combination of districts that would achieve voter parity. This scenario will result in a reduction of three elected school board members, one from each of the three counties contained within AVRSB. It does, meet the criteria established by NSURB as it relates to voter parity, contiguous boundaries, and uses the current approved districts approved by NSURB in the three counties. [Exhibit A-4, p. 5]
9 -9- [25] The Board recognizes that there are several differences between an electoral district for the election of a school board member and a polling district in a municipality for the election of a municipal councillor. The Education Act requires that every school board have between eight and eighteen members, while the Municipal Government Act does not specify any minimum or maximum number of councillors. In most instances, a school board member represents more voters than does a municipal councillor in the same general area. Further, the duties of councillors have become fulltime for many, while school board members often carry out their school board duties in addition to other full-time employment. [26] Nevertheless, while reasonable departures from the ±10% guideline may be justified in a few instances, the Board is of the opinion that, for the most part, the other factors enumerated in s. 44(3) can be adequately recognized and accommodated within the guideline. However, given the large size of some electoral districts across the province, and the relatively larger electorate represented by school board members in comparison to municipal councillors, the Board may sometimes be more lenient in applying the ±10% guideline as it relates to school boards. [27] As stated above, the Board is of the opinion that the primary consideration in setting the boundaries of the electoral districts should be relative equality of voting population, subject to an appropriate variation to recognize differences in population density, community of interest considerations and geography. While parity of voting is of primary importance, the Supreme Court of Canada in Carter has said it is not the only factor to be taken into account in ensuring representation....
10 -10- [28] The Board notes that it did not receive any public opposition to the Application. [29] The Board has considered the Application and information provided by the Applicant. The Board accepts the School Board s submission that the proposed 10 electoral districts and their boundaries are reasonable, and the Application is approved. One member will be elected from each electoral district. [30] The Board commends the School Board for retaining an outside consultant to do the public consultation and providing a recommendation. The Board also recognizes the School Board s efforts to accommodate the municipal boundary review schedule and other municipal applications which impacted the School Board s process. [31] An Order will issue accordingly. DATED at Halifax, Nova Scotia, this 17th day of August, Roland A. Deveau fv1 Kulvinder S. Dhillon Document;
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