CHILD AND FAMILY SERVICES REVIEW BOARD
G.P. v. Toronto District School Board
REASONS FOR DECISION ON MERITS
Date: March 31, 2008
Citation: 2008 CFSRB 23
Indexed as: G.P. v. Toronto District School Board (EA s. 309)
INTRODUCTION
1This is an appeal of a decision of the Toronto District School Board (“TDSB”) to expel A.P., date of birth September […], 1992, pursuant to section 309 of the Education Act R.S.O. 1990, c. E.2 (the “Act”).
2The Applicant, G.P., is the father of the student and was self-represented during the appeal hearing. The position of the Applicant is that his son A.P. did not have a knife and did not threaten bodily harm to either of the two students involved in the incident as alleged. G.P. believes that the TDSB did not have authority to impose an expulsion because the alleged incident did not occur on school property. The Applicant seeks to have the decision of the TDSB overturned and to have the expulsion expunged from the Ontario School Record of A.P..
3The position of the Respondent is that A.P. used a knife to threaten bodily harm to two students from B.M.S. (“B.M.S.”). The TDSB believes that it had the authority to expel A. under section 309(1) of the Act because there is a connection between the alleged incident and B.M.S., which makes the incident school related. The TDSB is seeking to have the expulsion of A.P. upheld.
4The TDSB’s statutory authority to expel a student comes from section 309(1) of the Act which states:
309(1) It is mandatory that a pupil be expelled if the pupil commits any of the following infractions while he or she is at school or is engaged in a school-related activity:
Possessing a weapon, including possessing a firearm.
Using a weapon to cause or to threaten bodily harm to another person.
…..
Engaging in another activity, that under a policy of the board, is one for which expulsion is mandatory.
5In an appeal of the TDSB’s decision to expel A.P., the Child and Family Services Review Board (“Board”) must determine the following:
a. did the alleged incident occur while A. was at school or while engaged in a school related activity; and if so,
b. was the alleged incident an infraction for which an expulsion is mandatory.
BACKGROUND
6A.P. and his friend, S.X., were walking home together from B.M.S. after school on October […], 2005. Two other B.M.S. students, D.M. and D.G., were also walking along the same route at that time. This route involved walking from school, along B.L., then traveling west along C. Avenue, crossing B. Avenue and continuing west along E. Avenue.
7] While walking home, the two groups of students were engaged in a verbal exchange, sometimes referred to as trash talk. While on E. Avenue, just west of E2. Avenue, D.M. and D.G. allege that A. threatened them with a knife.
8As a result of this allegation, A. was expelled by the TDSB. G.P. is appealing the decision of the TDSB to expel A..
ANALYSIS
9The matter proceeded by way of a hearing de novo. The Applicant called oral evidence from his son A.P., his wife D.P., M.K., a woman who D.M. and D.G. sought assistance from, and students S.X. and T.G.. The Respondent called I.R., a construction worker, students D.M., D.G., C.Y. and B.S., and the principal of B.M.S., K.G..
10The Board must first determine if the alleged incident occurred while A. was at school or while engaged in a school related activity.
11The evidence establishes that the incident occurred while the youth were walking home from school. The evidence confirms that the incident occurred west of B.L., which was approximately half a mile away from, and not in sight of the school.
12G.P. submits that given that the incident did not occur on school property, nor were any of the youth engaged in a school related activity, the TDSB should not have expelled A..
13The TDSB takes the position that the incident created a sufficient nexus or connection to the school and as such the Board had the authority to expel A.. The TDSB in its submission to the Board acknowledges that the incident “did not happen strictly at school or during a school-related activity”, however, it takes the position that the incident was related to the school. The TDSB submits that the seriousness of the incident and the nature of its impact on the school were important factors that were taken into consideration when coming to the decision to expel A.. The TDSB argues that a nexus between the incident and the school was created because the incident involved students from the school, occurred on a route used by many B.M.S. students and had a negative impact on the student body. The TDSB states that because of this nexus and its role in making decisions affecting students attending B.M.S., it could expel A..
14The legislation states in plain language that in order for a school board to expel, the incident must have occurred while the student is “at school or is engaged in a school-related activity”. It is clear that the incident did not occur while A. was at school. There was no evidence to support the proposition that walking home from school was engaging in a school-related activity, which the Board defines as a curricular, co-curricular or extra-curricular activity that is sponsored or organized by a school. The only evidence before the Board is that the incident occurred approximately half a mile from B.M.S.. Therefore, the Board finds that the incident did not occur in a location that allowed the TDSB to expel A..
15The Board disagrees with the analysis put forward by the TDSB to the effect that it could impose an expulsion because there was a sufficient connection between the incident and the school. The legislation requires that the student must be involved in a school-related activity when the incident occurred, not that the incident be school-related. No caselaw was submitted to support the TDSB’s position that it could expel a student if the incident is school related and had an impact on the climate of the school.
16Support for the Board’s finding can be found when examining the amendments to the Act, which came into force on February 8, 2008. The amended Act allows the TDSB to expel students not only for activities which occurred at school or during a school related activity, but also in other circumstances where engaging in the activity will have an impact on the school climate. Had the legislature intended the interpretation advanced by the TDSB, it would have used the clear language of the amended Act.
17The Board accepts the TDSB’s argument that a principal must be able to deal with incidents that she believes affect the safety of the student body. The principal is given this authority under section 265(1) of the Act whereby a student can be excluded from a classroom or the school where the student’s presence is detrimental to the physical and mental well-being of other students. Section 265(1)(m) reads as follows:
It is the duty of a principal of a school, in addition to the principal’s duty as a teacher,
(m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.
18The Board finds that there were other options available to the principal, under the Act, if she believed A.’s presence in the school was detrimental to the well-being of other students.
19In light of the foregoing, the Board finds on the facts of this case that A.P. was not involved in an incident that occurred on school property or while engaged in a school related activity. As such, the Board need not address the issue of whether the incident was an infraction for which A. should be expelled.
DECISION
20The Board finds that the TDSB should not have expelled A.P. because the alleged incident for which he was expelled did not occur while he was at school or was engaged in a school related activity, as is required by section 309(1) of the Act.
21The Board therefore orders that the expulsion of A.P., be overturned and that any record of this expulsion in his Ontario Student Record be expunged.
Wendell White Presiding Member
Denyse Diaz Panel Member
Ruth Ann Schedlich Panel Member
Dated in Toronto, Ontario this 31^st^ day of March, 2008.