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Toronto District School Board sign is shown in front of a high school in Toronto on Jan. 30, 2018. The Toronto District School Board is challenging a provincial regulation that prevents it from collecting millions of dollars in development charges.Frank Gunn/The Canadian Press

The Toronto District School Board is challenging a provincial regulation that prevents it from collecting millions of dollars in development charges to buy land for new schools where the student population is growing.

The public school board filed an application in the Ontario Superior Court of Justice this week for a judicial review, arguing that the regulation is "unfair" and that it be declared "constitutionally inoperative."

The regulation dictates that boards with excess school space are not eligible to collect Educational Development Charges (EDCs), the money that developers pay into the school system when they build new sites. The Toronto Catholic District School Board, meanwhile, can collect these levies because, according to the Education Ministry, it has no excess school space.

Many of the province's school boards have been struggling for years with declining enrolment, and 45 out of 72 of them are operating partly empty schools. Yet, within several of those boards, there have been pockets of growth driven by residential development, and education officials say they can't collect badly needed dollars from developers to help build new schools. Boards are left to rely on the province to approve capital projects.

The TDSB said in its filing that the board is obligated under the Education Act to provide "adequate accommodation" to all students who have a right to attend its schools. "But the TDSB is not able to adequately plan for and address the accommodation pressures occasioned by that growth," it stated.

"The law says one thing and the regulation, in our opinion, contradicts the law. We don't think that's appropriate," TDSB chair Robin Pilkey said in an interview on Tuesday.

A spokesman for Education Minister Indira Naidoo-Harris did not directly address the TDSB's judicial-review application and said in an e-mail statement that the government has made investments to school infrastructure. Richard Francella said school boards, including the TDSB, can submit business cases to the Ministry of Education for land acquisition through a specific program and "we have not received a request from TDSB for land purchase or site acquisition recently."

The Ontario government has been critical of the TDSB's reluctance to close schools operating below capacity or to sell off unused green space.

The TDSB has more than 34,000 surplus spaces at the elementary level, and more than 21,000 at the secondary level.

But the board said that existing surplus school capacity is often not in growth areas. The worry is that children will have to be bused to school outside their neighbourhoods.

Ms. Pilkey said the TDSB has been looking at other ways to address growth, including school boundary changes. She said that being able to access EDCs would be helpful.

"The reality is that where we have space is not where the growth is. The fact that we have capacity in Scarborough doesn't help us at Eglinton and Yonge," she said.

Eglinton Junior Public School, located at Eglinton Avenue East and Mount Pleasant Road, has 574 children even though its capacity is 507. By 2022, its student population is projected to climb to 696.

Shelley Laskin, the area's school trustee, said smaller resource rooms are being used as classrooms to accommodate students. There is no space to add portables or for an addition, she said. Ms. Laskin said if the board was allowed to collect EDCs, it would have purchased a strip mall just south of the school last year and expanded the building.

"The amount of capacity that's going to be coming to the area in the next 15 to 20 years, there will not be enough public school space for these kids," Ms. Laskin said. "We need the province to partner with us to plan for that. We know the planning numbers; we have to prepare for that."

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