British Columbia (Minister of Education and Child Care) v. Duncan

2026 BCCA 91 British Columbia (Minister of Education and Child Care) v. Duncan COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia (Minister of Education and Child Care) v. Duncan, 2026 BCCA 91 Date: 20260306 Docket: CA51069 Between: Minister of Education and Child Care of British Columbia and Lieutenant Governor in Council for the Province of British Columbia Appellants (Respondents) And Nicole Duncan, Karin Kwan, Natalia Baillaut, Angela Carmichael, Mavis David, Derek Gagnon, Emily Mahbobi, Diane McNally and Rob Paynter Respondents (Petitioners) Restriction on publication: Pursuant to the Supreme Court of British Columbia's inherent jurisdiction, no person may publish in any document or broadcast or transmit in any manner whatsoever, whether written, spoken, or electronically, any information that would identify the content of the record before Cabinet in making Order in Council No. 40/2025 as set out on page 35 of the Affidavit #1 of Orla Twamley made July 31, 2025. Before: The Honourable Madam Justice Fenlon The Honourable Justice Dickson The Honourable Justice MacNaughton On appeal from: An order of the Supreme Court of British Columbia, dated October 15, 2025 (Duncan v. British Columbia (Minister of Education and Child Care), 2025 BCSC 2011, Victoria Docket S2510216). Counsel for the Appellants: M. Bennett E.C. Lapper, K.C. C. Bant Counsel for the Respondents: K. Smith M.V. Hergert M.R. Walwyn Place and Date of Hearing: Vancouver, British Columbia January 19, 2026 Place and Date of Judgment: Vancouver, British Columbia March 6, 2026 Written Reasons by: The Honourable Justice MacNaughton Concurred in by: The Honourable Madam Justice Fenlon The Honourable Justice Dickson Summary: The appellants, the Minister of Education and the Lieutenant Governor in Council, appeal orders requiring them to produce documents, and dismissing their application to strike a petition under the Supreme Court Civil Rules, B.C. Reg. 168/2009. The orders were made in a judicial review proceeding in which the respondents challenged two ministerial orders and a cabinet order in council, claiming that the orders were made in bad faith and for an improper purpose, and that the appellants were owed a duty of procedural fairness. Held: Appeal dismissed. The chambers judge was correct in concluding that it is not plain and obvious that the impugned decisions did not attract a duty of procedural fairness, or that the bad faith/improper purpose claims will fail. There was also no error in the chambers judge's document production orders including: additional documents that were before the Minister when the ministerial orders were made; a better description of the documents over which privilege was claimed; and extrinsic evidence to ensure the Court could fulfill its supervisory role on judicial review. Table of Contents Paragraph Range Introduction [1] - [6] Arguments on Appeal [7] - [8] The Statutory Background [9] - [13] Boards of Education Responsibilities [10] Ministerial Responsibilities [11] - [12] Cabinet Responsibilities [13] Factual Background [14] - [18] The Pleadings As They Relate To The Bad Faith And Improper Purpose Allegation [16] The Pleadings As They Relate To Procedural Fairness [17] - [18] The Applications Giving Rise to this Appeal [19] - [20] The Chambers Judge's Decision [21] - [23] The Application to Strike [24] - [62] Standard of Review [24] - [25] Should the Procedural Fairness Claims have been Struck? [26] - [41] Should the Bad Faith/Improper Purpose Allegations have been Struck? [42] - [62] The Document Production Order [63] - [80] Standard of Review [63] - [63] Discussion [64] - [80] Disposition [81] Reasons for Judgment of the Honourable Justice MacNaughton: Introduction [1] This appeal arises from two preliminary orders made in a petition for judicial review brought by the former trustees of the Board of Education of School District No. 61 (Greater Victoria) ("SD61", the "Former Trustees" and the "Board") against the Minister of Education and Child Care (the "Minister") and the Lieutenant Governor in Council for the Province of British Columbia (i.e., the British Columbia Executive Council, or "Cabinet"). In these reasons, the Minister and Cabinet will be collectively referred to as the "Province". [2] On January 30, 2025, by Order in Council No. 40/2025 (the "OIC"), Cabinet appointed an official trustee to conduct the affairs of SD61, and by operation of the School Act, R.S.B.C. 1996, c. 412 (the "Act"), relieved the Former Trustees of their duties. Cabinet's decision was made after a number of earlier steps were taken by the Minister regarding the adoption of a school safety plan in SD61. [3] The Former Trustees filed a petition for judicial review on March 31, 2025. The Province responded on May 30, 2025. On October 22, 2025, the British Columbia Civil Liberties Association was granted leave to intervene on conditions. It is not a party to this appeal. [4] On July 31, 2025, in the judicial review proceeding, the Former Trustees applied to clarify the record on judicial review and for broader document production. On August 8, 2025, the Province applied to strike certain allegations in the petition under Rule 9-5(1)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the "Rules"). [5] The applications were heard in chambers in August 2025 and on October 15, 2025, the chambers judge issued reasons cited as: Duncan v. (British Columbia) Minister of Education and Child Care, 2025 BCSC 2011 ("RFJ"). [6] The chambers judge made two orders. The first order required the Province to produce a broad array of documents. The second order dismissed the Province's application to strike portions of the petition addressing procedural fairness and bad faith/improper purpose. It is largely the procedural fairness and bad faith allegations which underpin the document production order. Arguments on Appeal [7] The Province argues that the chambers judge erred in failing to strike the Former Trustees' allegations of procedural unfairness and bad faith/improper purpose. It also submits that the chambers judge erred in ordering production of a broad range of documents, contending that the order was in the nature of civil discovery and not appropriate in a judicial review proceeding. [8] The Former Trustees argue it is not plain and obvious that the OIC decision did not attract a duty of procedural fairness, or that the bad faith/improper purpose claims will fail. They also submit that the chambers judge did not err in her document production order. The Statutory Background [9] In British Columbia, the Act assigns responsibility for K-12 education among democratically elected "Boards of Education", the Minister, and Cabinet. Boards of Education Responsibilities [10] Under ss. 65 and 75 of the Act, Boards of Education ("boards") are responsible for the improvement of student achievement and the provision of educational programs in their school district. Among other things, they may determine local policy for the effective and efficient operation of their district's schools: s. 85 of the Act. Ministerial Responsibilities [11] The Minister retains broad authority over matters relating to education. Under s. 168.03 of the Act, the Minister may, by order, issue an administrative directive to a board if the Minister believes "it is in the public interest to do so". Where the Minister issues an administrative directive, the board may only exercise its powers under the Act, or any other statute, in accordance with the Minister's order: s. 168.03(2). [12] Under s. 171.1 of the Act, the Minister may also, by order, appoint a special advisor to any school district to, among other things, assist the board in the conduct of the district's affairs in respect of any education, financial, or community matter. When a special advisor is appointed, a board and its employees must assist them in carrying out their duties, and the special advisor must submit a report to the Minister in respect of "anything resulting from carrying out their duties": s. 171.1(2) of the Act. Cabinet Responsibilities [13] Under s. 172 of the Act, the Lieutenant Governor in Council (i.e., Cabinet) may appoint an official trustee to any school district to conduct the affairs of the district if, in Cabinet's opinion, certain circumstances exist. In this case, the relevant circumstances include: (1) there is substantial non-compliance with the Act or any orders made under it; (2) there is substantial non-performance of the board's duties; (3) there is a risk to student achievement in the district and it is in the public interest to appoint an official trustee; or (4) the board has failed to comply with an administrative directive issued by the Minister. The school district's elected trustees cease to hold office upon the appointment of an official trustee. Factual Background [14] In the underlying petition proceeding, the Former Trustees of the Board of SD61 seek judicial review of two ministerial orders and an OIC enacted by Cabinet under the Act. In these reasons the orders and the OIC will be referred to as the "Orders". The Orders are: a) Ministerial Order No. M339/24 (the "Administrative Directive") made by former Minister, the Honourable Rachna Singh, on September 17, 2024, which required the Board to develop a proactive, coordinated safety plan in collaboration with local police departments; b) Ministerial Order No. M406/24 (the "Special Advisor Order") made by the current Minister, the Honourable Lisa Beare, on December 5, 2024, which appointed a special advisor to assist the Board in developing the safety plan; and c) Order in Council No. 40/2025 (the "OIC") made by Cabinet on January 30, 2025, which appointed an official trustee to conduct the affairs of the school district and, by operation of s. 172(2) of the Act, relieved the Former Trustees of their duties. [15] The Former Trustees allege that the Orders are ultra vires the Province's authority under the Act; the Orders were made in bad faith and for an improper purpose; and the Province owed them a duty of procedural fairness in enacting the OIC and breached that duty. The Pleadings As They Relate To The Bad Faith And Improper Purpose Allegation [16] The Former Trustees assert that the Province issued the Orders in bad faith and for an improper purpose by: a) imposing a process through the Administrative Directive and the Special Advisor Order that had the improper and undisclosed purpose of forcing the reinstatement of a "school police liaison officer program" ("SPLO Program") in the school district "in a manner that would conceal the Minister's role in dictating that outcome"; b) basing the OIC "on the alleged failure of the Board to comply with the process noted above in a manner that comported with its improper and undisclosed purpose"; and c) other facts that may become apparent". The Pleadings As They Relate To Procedural Fairness [17] The Former Trustees assert that the Province owed them a duty of procedural fairness in enacting the OIC and breached that duty by: a) relying on a mandatory report prepared by the special advisor which they say was in itself premised on an unfair process; b) breaching the legitimate expectations of the Former Trustees as established by the Special Advisor Order; and c) failing to provide the Former Trustees with any opportunity to respond to the special advisor's report or to any other materials relied on by Cabinet in making the OIC. [18] The Former Trustees' petition seeks to have the Orders set aside and the Board reinstated "nunc pro tunc". The Applications Giving Rise to this Appeal [19] There were two applications before the chambers judge. The first involved a July 31, 2025 application by the Former Trustees for production of additional documents they submitted formed part of the record on judicial review and production of "extra-record" documents in support of their bad faith and procedural unfairness allegations. Subject to redactions, the Province had only produced materials that the Province said were "directly before" the Minister when issuing both ministerial orders (i.e., the briefing notes and attachments), and a list of the documents before Cabinet in making the OIC. The Province opposed this application. [20] The second involved an August 8, 2025 application by the Province, pursuant to R. 9-5(1)(a) of the Rules, to strike the Former Trustees' claims that: (i) the Orders were made in bad faith and for an improper purpose, and (ii) the OIC attracted a duty of procedural fairness that the Province breached. The Province said that the Former Trustees' allegations, even if taken to be true, do not establish that any of the Orders were made in bad faith, or for an improper purpose, and that the OIC did not attract a duty of procedural fairness in law. The Former Trustees opposed the application. The Chambers Judge's Decision [21] In her RFJ, the chambers judge: a) granted, in the main, the Former Trustees' production application; and b) dismissed the Province's application to strike. [22] The chambers judge ordered that, within 15 days, the Province must produce: a) the written records, including all documents, emails, text messages, and notes and memoranda before the Minister in making the [Administrative Directive] and the Special Advisor Order. She said that these records would form part of the record on judicial review: RFJ at paras. 142(b)(i) and (ii); and b) "extra-record" documents including: i. all records of communications related to the [SPLO Program] and safety concerns in the school district between the Minister (or anyone acting on the Minister's behalf) and the Victoria/Esquimalt Police Department, the Central Saanich Police Department (I note that this reference in the order should have been to the Westshore RCMP), the Oak Bay Police Department, and the Saanich Police Department from May 1, 2024 to the date of the OIC; ii. all records of communications between the Minister (or anyone acting on the Minister's behalf) and the special advisor relating to the Special Advisor Order and the [SPLO Program] in the district to the date of the OIC; iii. all records of communications between the Minister (or anyone acting on the Minister's behalf) and Safer Schools Together (an independent organization with expertise in school safety) regarding safety concerns and the [SPLO Program] in the district from May 1, 2024 to the date of the OIC; and iv. all records of communications between the district's superintendent and the Minister (or anyone acting on the Minister's behalf) relating to the [SPLO Program] in the district from May 1, 2024 to the date of the OIC. [23] The chambers judge also required the Province to identify any documents considered by the Minister in making each ministerial order that are no longer available. The Application to Strike Standard of Review [24] There is no dispute about the standard of review on an application to strike pleadings under R. 9-5(1)(a) of the Rules. [25] The test under the Rule is the same whether the proceeding is a petition or a civil claim: whether, assuming the pleaded facts are true, the petition discloses a reasonable claim or foundation for the relief sought: The Friends of Fairy Creek Society v. Canada (Attorney General), 2025 BCCA 243 at paras. 41-43; Trenchard v. Westsea Construction Ltd., 2024 BCCA 273 at para. 31. It must be plain and obvious that the claim has no reasonable prospect of success: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 64. This is a pure question of law reviewable on a correctness standard: Kamoto Holdings Ltd. v. Central Kootenay (Regional District), 2022 BCCA 282 at para. 37; Situmorang v. Google, LLC, 2024 BCCA 9 at para. 50. Should the Procedural Fairness Claims have been Struck? [26] The question before this Court is whether the chambers judge erred in concluding that it was not plain and obvious that the procedural fairness claims had no reasonable prospect of success. [27] As I understand it, and as argued before this Court, the procedural fairness claim relates exclusively to the OIC. [28] The Province submits that the legal character of the OIC in issue in this petition is legislative and, as a result, it does not attract a duty of procedural fairness and should be struck. [29] Courts should resolve legal disputes promptly where possible, including resolving questions of law by striking claims that have no reasonable chance of success: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at paras. 18-19 and Canada (Attorney General) v. Frazier, 2022 BCCA 379 at paras. 19-21. [30] In deciding not to strike the procedural fairness claims made by the Former Trustees, the chambers judge concluded that the issue required a full hearing on the merits. The chambers judge made no error in this respect. [31] In my view, it is not plain and obvious that the OIC is legislative in nature and, as a result, does not attract a duty of procedural fairness. [32] In Ironclad Developments Inc. v. West Kelowna (City), 2025 BCCA 191 [Ironclad], the Court set out the features, which when considered cumulatively, point to a determination that a decision is "legislative" in nature and thus not subject to a requirement that it be made fairly: a) the decision is general in nature; b) the decision is based on broad considerations of public policy; c) mechanisms of political accountability exist in respect of the decision; and d) adversely affected interests are numerous, diverse, or diffuse. [33] The Court explained that there is no "bright-line test" for what amounts to "legislative decision making", and that none of the following features taken individually, is necessarily determinative: Ironclad at para. 25. [34] I agree with the chambers judge that an application of the Ironclad features to this case does not definitively lead to the conclusion that the OIC is legislative in nature and therefore that the claim should be struck. [35] First, it is at least arguable that the OIC is partially specific in nature; it was a decision particularly focused on the nine Former Trustees, in addition to having broader repercussions. [36] Second, I agree that the OIC engages broad social and policy issues that, by their very nature, require Cabinet to consider the broader public interest. However, I see it as at least arguable that the OIC was based on an issue specific to a particular school community. I note that the Minister did not decide that all school districts should have a SPLO Program. [37] Third, although individual Cabinet members are subject to ultimate political accountability in our democratic system of government, I accept the Former Trustees' submission that it is at least arguable that Cabinet occupies a unique position in terms of direct accountability for its decisions. [38] Finally, I agree that the decision to enact the OIC affected numerous and diverse interests. [39] Weighing these features holistically, and applying the Ironclad framework, in my view, it is not plain and obvious that the OIC decision was legislative in nature. [40] Moreover, as the chambers judge pointed out, there are authorities supporting and undercutting both parties' positions, making it not plain and obvious that there is no procedural duty owed in this context (see, e.g., Surrey Memorial Hospital Society v. British Columbia (Attorney General), 1982 CanLII 305 (B.C.S.C.); Health Sciences Association of British Columbia v. British Columbia (Attorney General), 1986 CanLII 964 (B.C.S.C.); Pelletier v. Canada (Attorney General) (F.C.A.), 2007 FCA 6; Potter v. Halifax Regional School Board, 2002 NSCA 88; Esquega v. Canada (Attorney General) (F.C.), 2007 FC 878; Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518 at paras. 119-120). As such, I agree with the Former Trustees that, based on these authorities, the outcome of this issue is not plain and obvious, and it warrants a full hearing on its merits with the benefit of a full record and argument. [41] In my view, the chambers judge did not err in declining to strike the procedural fairness allegations under R. 9-5(1)(a). Should the Bad Faith/Improper Purpose Allegations have been Struck? [42] Under the legal basis for the petition, the Former Trustees allege: a) The Minister acted in bad faith and for an improper purpose by "imposing a process" through the Administrative Directive and the Special Advisor Order that had the "improper and undisclosed purpose of forcing the reinstatement of the [school police liaison officer program]" in the school district "in a manner that would conceal that Minister's role in dictating that outcome". b) Cabinet acted in bad faith and for an improper purpose by "basing the [OIC] on the alleged failure of the Board to comply with the process noted above in a manner that comported with its improper and undisclosed purpose". [43] The Province submits that the Petition pleads no material facts to support a claim in bad faith. Alternatively, if bad faith is appropriately pleaded, they submit that it is plain and obvious that the allegations cannot be legally sustained because the Province acted for a purpose falling within their delegated powers, and because the Former Trustees cannot meet the high standard for establishing bad faith. The Province says the chambers judge erred in her interpretation of the applicable jurisprudence on the issue. [44] The Former Trustees submit that the chambers judge did not err in drawing inferences from the pleadings. They also argue that the framework for bad faith in the administrative law context is broad, flexible, and somewhat unsettled, supporting the conclusion that it is not plain and obvious that the bad faith/improper purpose claim has no reasonable prospect of success. [45] In my view, the chambers judge did not err in concluding that it is not plain and obvious that the claim has no reasonable prospect of success. [46] I disagree with the Province's submission that the pleadings were insufficient. To survive a motion to strike under R. 9-5(1)(a), a petition must disclose a reasonable claim or foundation, assuming the pleaded facts to be true: The Friends of Fairy Creek at para. 41. At this stage, whether evidence substantiates the pleaded facts is irrelevant: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 23. The facts must be taken to be true, and inferences drawn from those facts may be viewed as "speculative" so long as the facts pleaded are not "manifestly incapable of being proven": Situmorang at para. 56, citing FORCOMP Forestry Consulting Ltd. v. British Columbia, 2021 BCCA 465 at para. 36. The same test applies regardless of the type of pleading: Trenchard at para. 31. [47] In this case, after summarizing the pleaded chronology of the events in question (RFJ at paras. 20-69), the chambers judge pointed out the inferences that the respondents drew from the chronology, specifically pertaining to their conduct-based bad faith claims (RFJ at para. 111), ultimately concluding that, if taken to be true, the pleadings support a claim of bad faith known to law (RFJ at para. 112). I see no error in her conclusion in that regard. [48] Further, I agree with the Former Trustees that the chambers judge did not err in concluding that it is not plain and obvious that the bad faith/improper purpose claim will fail, taking the pleadings at their highest. [49] As the chambers judge pointed out, this Court's decision in Macmillan Bloedel Ltd. v. Galiano Island Trust Committee, 1995 CanLII 4585 (B.C.C.A.) outlines that bad faith in the administrative context may include dishonesty, fraud, bias, conflict of interest, discrimination, abuse of power, corruption, oppression, unfairness, and conduct that is unreasonable: Macmillan at para. 153. It may also include the exercise of power that is beyond the scope or the ambit of the powers delegated by the legislature: Macmillan at para. 154. [50] The Province argues that there are two established categories of bad faith: (1) the "intent" branch (acts committed deliberately with intent to harm); and (2) the "conduct" branch (conduct that is "markedly inconsistent" with the relevant legislative context). The Province submits that the bad faith claim fails on both branches. The Former Trustees submit that authorities, in the administrative context, do not establish such rigid categories. [51] At this stage of these proceedings, and without commenting on the scope and categories of such claims, it is not plain and obvious that the bad faith/improper purpose claim has no reasonable prospect of success. I repeat the chambers judge's articulation of the pleading on this issue: [102] the Minister's motivation was to have the Board make the decision and be seen to make the decision and there are two primary reasons that motivation amounts to bad faith. First, the Minister's conduct in issuing the Safety Plan Order and Special Advisory Order was dishonest, and it forced the Board to engage in a convoluted, stressful, and time-consuming effort to adhere to orders to draft a safety plan and then follow a process and draft a new plan over the holidays, with no real possibility of satisfying the terms of either order. Second, the Minister's determination to have the Board approve the SPLO Program was an attempt to force a democratically elected body to exercise their discretion in a manner that the Board believed was ill-advised policy and could actually cause some students harm. [52] I see no error in the chambers judge's reasons. [53] To the extent that the decision in Auer v. Auer, 2024 SCC 36 articulates the standard for bad faith in the jurisdictional sense as described in Macmillan, determining the strength of the bad faith claim involves opining on the merits of the vires aspect of the Petition, which the Province did not seek to strike. [54] The Province submits that this Court can decide the vires aspect of the bad faith claim without deciding whether the actual orders were made ultra vires. I disagree. To determine whether the Minister acted in a way that was inconsistent with her role under the Act, the Court would have to determine whether the Minister acted ultra vires in making the Orders in the first place. [55] In any case, I do not read Auer to suggest that all bad faith claims must be grounded in a finding of a markedly inconsistent decision with the legislative authority. Auer involved the question of whether the challenger to legislation was required to establish that subordinate legislation was "irrelevant", "extraneous", or "completely unrelated" to a statutory purpose before it could be found to be ultra vires. The Court held that underlying political, economic, social, or partisan considerations are irrelevant in assessing the vires of subordinate legislation: Auer at para. 56. On an application to strike, it was open to the chambers judge to conclude that Auer does not necessarily require administrative bad faith claims to allege "markedly inconsistent" conduct, nor does it establish the relevance of the political, economic, social or partisan considerations at the root of the Petition in this case. [56] The Province submits that, contrary to the chambers judge's conclusion, Macmillan does not stand for the proposition that any decision made for an unstated or ulterior purpose, or a decision that is found to be ultra vires, is necessarily made in bad faith. The Province says, per Macmillan, a political entity may act with an unstated purpose, as long as that purpose is within the powers delegated to that entity, and in this case, the Ministers' alleged "improper" purpose falls within the ambit of the Act by virtue of s. 168.03(b), which gives the Minister broad discretion to issue an administrative direction and constrain the Board's powers. [57] First, I do not read the chambers judge's decision to go so far as to say that any ultra vires decision necessarily establishes a claim for bad faith. To the contrary, she specifically stated that, in light of Auer, the law was unsettled on the point of the relevance of a decision-maker's motivations for the vires review: RFJ at para. 107. The lack of clarity in the jurisprudence alone precludes a conclusion that it is plain and obvious that the bad faith/improper purpose claim has no reasonable prospect of success for the purposes of an application under R. 9-5(1)(a). [58] Second, even though s. 168.3(b) provides broad discretion to the Minister, that cannot determinatively extinguish the bad faith/improper purpose claim to the extent that it has "no reasonable prospect of success". Moreover, the submission that the Minister's alleged improper purpose falls within the powers delegated to her by the Act once again engages the vires question, which the Province does not seek to strike. [59] Finally, the Province relies on Dargatz Mink Ranch Ltd. v. British Columbia (Ministry of Agriculture and Food), 2025 BCCA 272. In Dargatz, the Court clarified two categories for the tort of misfeasance of public office: Category A involves conduct that is specifically intended to injure a person or class of persons; and Category B involves a public officer who acts with knowledge that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. The Court held that, with respect to Category B, it is necessary that the conduct in enacting the subordinate legislation falls within the scope of the statutory mandate, and if it does not, it constitutes an improper purpose. [60] The Province says that Dargatz is instructive because the allegation in that case was that an order in council had been made for an improper and disguised purpose, which is the same allegation the Former Trustees make here. They point out that the Court in Dargatz determined the claim solely on the question of whether the alleged conduct was ultra vires. [61] I do not see Dargatz as supporting the Province's position. The Court's assessment in Dargatz necessarily included a vires review because the alleged misfeasance tort fell within Category B: Dargatz at paras. 19, 43. Per Auer, the Court accepted that, if the order in council fell within a reasonable interpretation of the scope of the enabling legislation, the underlying political, social and public opinion reasons are irrelevant to classifying the conduct under Category B: Dargatz at para. 42. This does not more generally advance the argument that the claim for bad faith--a seemingly broader claim than what was alleged in Dargatz--has no reasonable prospect of success. As stated, the vires question is not determinative of the issue in the present case. [62] I agree with the chambers judge that it is not plain and obvious that the bad faith/improper purpose claim as pleaded has no reasonable prospect of success. The Document Production Order Standard of Review [63] An order requiring document production in a judicial review is discretionary and subject to deference on appeal. Such an order will only be set aside where the chambers judge erred in principle, gave insufficient weight to all circumstances, clearly and demonstrably misconceived the evidence, or made an order resulting in a clear injustice: Chestacow v. British Columbia (Workers' Compensation Appeal Tribunal), 2023 BCCA 389 at para. 23. Discussion [64] The Province argues that the chambers judge erred in: a) defining the record as capturing every record before the Minister over an undefined time period. The Province says the question to be asked is not whether additional documents were in the possession of the Minister, but rather whether additional documents were put before the Minister when the decision was taken; b) ordering the Province to produce a list of the materials directly before Cabinet in enacting the OIC, because the Province already provided a list of such documents and asserted public interest immunity over the content of the record before Cabinet; and c) not identifying any evidentiary basis for an objectively reasonable concern that the Former Trustees' allegations justified the "extra-record" documents order. [65] The Province argues that, in ordering broad document production, the chambers judge did not exercise her discretion in a manner consistent with the purposes of judicial review, given that judicial review is supposed to be an efficient and summary means of holding the executive to account. [66] The Former Trustees submit the chambers judge properly interpreted the scope of the record, that the Cabinet documents ought to be disclosed with sufficient detail to permit the Former Trustees to assess the privilege claim, and that the chambers judge did not err in finding "some basis" in the evidence to support the production of extra-record documents. [67] In my view, the Province has not established an error warranting interference from this Court. [68] First, the Province's characterization of the production order as capturing "every record before the Minister over an undefined time period" is not accurate. The wording of the relevant order is as follows (RFJ at para. 142(i)): to the extent that they have not already been produced, the written records, including all documents, emails, text messages, and notes and memoranda before the Minister in making the Safety Plan Order and the Special Advisor Order, which will form part of the record. If documents considered by the Minister are no longer available, they are to be identified. [69] This is not an atemporal order. It is also not an order that requires the production of all documents that were in the Ministers' mere possession. A fair reading of the order requires the production of only those records which were directly considered, or "before the Minister", in issuing the Orders: RFJ at para. 130. This is consistent with Mizrachi v. Canada (Attorney General), 2025 FC 1308, in which the Federal Court held that the question is whether the additional documents were put before the Minister "when the decision was taken": at paras. 26 and 44. [70] The Province's second argument suffers from the same problem. The chambers judge ordered the production of (RFJ at para. 142(ii)): a list of documents that defines the record of the OIC, with any claims of privilege or immunity identified. The list should provide sufficient detail to allow identification of individual documents. This list of documents will be subject to the sealing order already in place in this proceeding. [71] The chambers judge did not order the production of a list of documents that was already produced, nor did she order the production of privileged information. The production order asks for a sufficiently detailed list with meaningful descriptions of the items on the list so that the basis of the privilege claims could be fairly assessed by the Former Trustees: RFJ at para. 135. Privileged documents will remain privileged. Applying the standard of review, I see no basis upon which to interfere with the chambers judge's order. [72] Third, the Province has not established that the chambers judge had no basis in fact upon which to make the extra-record production order. Citing Braaten v. Kelowna (City), 2022 BCSC 2105 at paras. 41, 43, the chambers judge concluded that the motivations for making the Safety Plan Order and the Special Advisor Order and for enacting the OIC may be relevant to Former Trustee's allegations of bad faith, and specifically their allegations that: a) the Minister acted in bad faith in issuing the Safety Plan Order and the Special Advisor Order; b) the orders are the vehicles through which the Minister sought to dictate the implementation of a SPLO Program; and c) the Safety Plan Order, the Special Advisor Order, and the OIC were ultra vires the jurisdiction of the Minister and Cabinet. (RFJ at paras. 138-139). [73] She therefore ordered the production of: a) all records of communications related to the SPLO Program and safety concerns in School District 61 between the Minister (or anyone acting on the Minister's behalf) and the Victoria/Esquimalt Police Department, the Central Saanich Police Department (which, as stated above, should have been the Westshore RCMP), the Oak Bay Police Department, and the Saanich Police Department from May 1, 2024 to the date of the OIC; b) all records of communications between the Minister (or anyone acting on the Minister's behalf) and Special Advisor, Dr. Kevin Godden, relating to the Special Advisor Order and the SPLO Program in School District 61 to the date of the OIC; c) all records of communications between the Minister (or anyone acting on the Minister's behalf) and Safer Schools Together regarding safety concerns and the SPLO Program in School District 61 from May 1, 2024 to the date of the OIC; and d) all records of communications between Superintendent Deb Whitten and the Minister (or anyone acting on the Minister's behalf) relating to the SPLO Program in School District 61 from May 1, 2024 to the date of the OIC. [74] The chambers judge was clearly alive to the Chestacow requirement for an evidentiary basis supporting a request for production of extra-record documents. Although I agree with the Province that the chambers judge did not make an explicit connection between each aspect of the various communications ordered and the particular aspects of the Former Trustee's allegations, this was not required of her. The chamber's judge's reasons, read holistically and together with the Petition and the record before her, make these connections apparent. [75] First, the chambers judge set out her understanding of the chronology of the events that occurred prior to the filing of the Petition. The chronology is comprehensive and clearly based in the record: at paras. 19-66. The chambers judge stated that her review of the events would form the basis of her determination of the issues: at para. 19. [76] The chambers judge subsequently held that the motivations for making the Orders and for enacting the OIC were relevant to the bad faith allegations and accordingly established the need for the extra-record documents to be produced. Again, this conclusion is grounded in the record. SD-61 overlaps with the listed police departments, and both the Safer Schools Together organization and the Superintendent were involved in the processes leading to the Orders. In particular, the record grounds the claim that the Board had no contact with the Safer Schools Together Review (Affidavit #1 of Nicole Duncan at paras. 47, 55), as well as the claim that the Special Advisor Order functioned to indirectly force an SPLO Program on the Board via the involvement of the Superintendent (Affidavit #1 of Nicole Duncan at paras. 26, 30, 40, 47, 49, 51, 54-58, 60, 67, 72, 75-76, 83, 94). I am satisfied that the affidavits filed in support of the application provided part of the evidentiary basis on which the chambers judge made the order for extra-record production. [77] In addition: the timing imposed on the Board, over the holiday season and during which extensive consultation was required; the Special Advisor Report criticizing the Board's governance generally; and the public pressure put on the Minister by the various Victoria police departments, all supplement an evidentiary basis for the order. [78] I see no reviewable error in the chambers judge's conclusion the Former Trustees met the standard of having "some basis" in the evidence. [79] Finally, while I appreciate the concern that broad production orders will not generally be wholly consistent with the purpose of judicial review, the scope of required production in each case will turn on the particular grounds of review, and the scope of production necessary to ensure that the court can properly discharge its supervisory role. As this Court observed in Chestacow: [27] The court does have the power, in limited circumstances, to admit evidence to augment or supplement the record where the admission of such evidence is necessary to ensure that the court can properly discharge its supervisory role. For example, if it is alleged that a tribunal is biased or acted for an improper purpose, resort to extrinsic evidence may be necessary because the relevant evidence will often not be in the record before the tribunal: Mink Breeders at para. 77, citing Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at para. 99. The reviewing court must be able to fully consider the question of whether proceedings before a tribunal met standards of procedural fairness, and therefore extrinsic evidence casting light on the procedures before a tribunal may be admissible: Air Canada at para. 37. The question of whether evidence beyond the record will be admitted on judicial review will, in every case, be guided by the question of whether the admission of the evidence is consistent with the court's supervisory role: Air Canada at para. 39. [80] In this case, the chambers judge found some basis in the evidence to support the allegations of bad faith and improper purpose and concluded that extrinsic evidence was required to ensure the court could fulfill its supervisory role. In light of the deferential standard of review, I see no basis for interfering with the chambers judge's orders in that regard. Disposition [81] I would dismiss the appeal. "The Honourable Justice MacNaughton" I AGREE: "The Honourable Madam Justice Fenlon" I AGREE: "The Honourable Justice Dickson"