N.N. v. Rainbow District School Board, 2011 CFSRB 9

CHILD AND FAMILY SERVICES REVIEW BOARD

N.N. v. Rainbow District School Board

REASONS FOR DECISION ON MERITS

Date: March 25, 2011 Citation: 2011 CFSRB 9 Indexed as: N.N. v. Rainbow District School Board (CFSA s.311.7)

1This is an appeal to the Child and Family Services Review Board (“Board”) of the September […], 2010 expulsion of [the] (“pupil”) from all schools of the Respondent. The Appellant is the pupil’s mother.

2The Board had to decide if the pupil should be expelled and if so, should the expulsion be from all schools or from her school only. The Board had to decide if the pupil engaged in an activity that is eligible for expulsion under the Education Act (“Act”). If she did engage in such an activity, the Board would then examine the mitigating and other factors to determine whether expulsion is the appropriate consequence.

3The Respondent’s position is that the expulsion should stand because the pupil engaged in an activity contrary to a school board policy that warranted expulsion. The Appellant’s position is that the pupil should not be expelled. The Appellant questions the allegations about the activity, the process and also raises mitigating and other factors.

4The first issue for the Board was whether the policy of the Respondent provided that a pupil must be suspended for the alleged activity. If suspension for the activity is mandatory under school board policy, it brings the conduct within the realm of activities that could lead to an expulsion.

5The Board determined that school board policy did not mandate suspension for the alleged activity. Thus, the pupil did not engage in an activity eligible for expulsion under the Act. On March 21, 2011, the Board quashed the expulsion, reinstated the pupil to her school and expunged the record of the expulsion. These are the reasons for that decision.

BACKGROUND

6The pupil is fifteen years of age and was a student at [School A]. On September […], 2010, the Discipline Committee of the Respondent expelled the pupil for posting threatening and inappropriate comments on Facebook and other actions related to another student (“Student A”). The expulsion followed other interventions about similar conduct.

7Student A and the pupil apparently had ongoing conflict relating to the pupil’s boyfriend, who was Student A’s former boyfriend.

8The Appellant, appealed the expulsion on November […], 2010. The Board granted an extension of the time to appeal by way of reasons for decision dated December 17, 2010.

ANALYSIS

9The Appellant submitted that the pupil had been harassed by Student A at school and on-line, that the process was unfair and that an expulsion was not warranted. The School Board maintained that the expulsion was appropriate and was concerned about the impact of the alleged activities on the mental health of Student A.

10The first issue for the Board, which it dealt with as a “threshold” issue, is whether a policy of the Respondent mandated suspension for the alleged activity. The Board heard evidence from the Principal and submissions from the parties. The Board determined that the policy did not mandate suspension and thus the expulsion provisions of the Act did not apply. Therefore, the pupil could not be expelled.

11Section 310(1) of the Act provides that:

A Principal shall suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:

1. Possessing a weapon, including possessing a firearm;
2. Using a weapon to cause or to threaten bodily harm to another person;
3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner;
4. Committing sexual assault;
5. Trafficking in weapons or in illegal drugs;
6. Committing robbery;
7. Giving alcohol to a minor;
8. Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil and, therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil be expelled. (emphasis added)

12Subsection 311.1(1) states that:

When a pupil is suspended under section 310, the Principal shall conduct an investigation to determine whether to recommend to the board that the pupil be expelled.

13The Respondent relied on section 310(1) 8 of the Act to expel the pupil. Thus, the onus was on the Respondent to establish that it had a policy under which there was a mandatory suspension for the alleged activity. A policy which is permissive about whether or not there will be a suspension for an activity is not sufficient. This is evident because of the explicit language used in the provision: “an activity for which a principal must suspend”.

14The June […], 2010 letter from the Principal notifying the Appellant of the pupil’s suspension and pending investigation for possible expulsion provided the following reasons:

The reason for the suspension is for activities engaged in by the pupil on or off school property that cause the pupils continuing presence in the school to create an unacceptable risk to the physical and mental well-being of other persons(s) in the school. Specifically, on June […], [the pupil] posted a comment (“oh my god, that fucking bitch is gunna fucking get it, im on a edge right now, if I hear one more thing from that fucking bitch, im gunna seriously go into that school drag her by her hair to the fucking ground, knee her face, then punch her in the fucking face till she actually looks better, but it probly wont… happen, so I might just end up killing her Imfao…:)) to a Facebook wall that was viewed by many students who attend [School A].

Students brought this comment and other comments to the attention of administration on June […]. This comment was made in reference to another student and was posted after [the pupil] had been warned about such behaviour on May […] following an investigation for ongoing bullying…

15The expulsion decision of the Respondent’s Discipline Committee, dated September […], 2010 provides the following reasons for the expulsion:

[The pupil] did in fact display unacceptable behaviour and threatened the physical and mental well-being of students. We believe [the pupil] will benefit from the [Program A] and will obtain assistance to curb anger and address behavioural changes.

16The Principal who recommended the expulsion to the Respondent school board testified that she relied on clause 3 (m) of the Respondent’s Suspension Policy and clause 3(j) of the Respondent’s Expulsion policy. The Board will deal with the Suspension Policy, followed by the Expulsion policy.

17Part 3 of the Suspension Policy has a heading: “Activities Leading to Possible Suspension”. The policy goes on to state:

Suspension shall be considered when a principal’s investigation of an incident, which should include consultation with the pupil’s parent/guardian and pupil or the adult pupil, determines that the pupil has committed one or more infractions outlined below on school property, during a school-related activity or event and/or in circumstances where the infraction has an impact on school climate. (emphasis added)

A student may be suspended for a minimum of one (1) school day and a maximum of twenty (20) school days. The infractions include:

(m) Any act considered by the principal to be injurious to the physical or mental well-being of members of the school community.

18The Suspension Policy then sets out mitigating and other factors and states that the principal must consider these factors before recommending a suspension. The Suspension Policy then states:

In circumstances where one or more of the factors above mitigate the decision to apply a suspension as a form of discipline for the pupil, the principal may consider whether alternative discipline and/or other intervention is appropriate in the circumstances.

19The Principal’s evidence was that she considered the wording “shall be considered” as synonymous with “shall suspend”. She testified that she believed that she had to suspend the pupil and that her only discretion was in terms of the duration of the suspension.

20On a plain reading, the Suspension Policy does not provide for mandatory suspensions relating to the activity referenced in paragraph 3 (m). The heading of the applicable section of the Suspension Policy clearly indicates that suspensions as “possible” suspensions will not always occur. The section requires the Principal to consider suspension but not to suspend in every case. The Principal has the discretion as to whether or not to recommend a suspension. Further, prior to recommending suspension, the Principal must consider the mitigating and other factors to see if another form of discipline or intervention could be used. Thus, the policy even provides guidance in terms of the exercise of discretion if considering suspension. While the Principal does have discretion as to the duration of a suspension, this is clearly not the only form of discretion available to the Principal and only applies where the decision to suspend has been made.

21The Suspension Policy of the Respondent does not provide a basis upon which a pupil can be investigated for expulsion or expelled under s. 310(1)8 of the Act.

22Similarly, the Expulsion Policy of the Respondent does not provide for mandatory suspensions, as required by s. 310 (1)8 of the Act.

23The Expulsion Policy refers to the items listed in section 310 (1) 1-7 of the Act. These would require mandatory suspensions by operation of the Act but this is not noted in the policy. The Expulsion Policy then adds additional “infractions” including that relied on by the Respondent:

3 (j) Activities engaged in by the pupil on or off school property that cause the pupil’s continuing presence in the school to create an unacceptable risk to the physical or mental well-being of other person(s) in the school or Board.

24The Principal testified that she relied on this policy as well as the Suspension Policy. The language used in the letter notifying the Appellant of the suspension and in the decision of the Respondent’s Discipline Committee is more consistent with the language in the Expulsion Policy than the Suspension Policy. These documents reference the physical and mental well-being of others. The Expulsion Policy does not cross-reference the Suspension Policy. Regardless of which policy or policies were in fact relied upon, no mandatory suspension provisions exist.

25Nowhere does the Expulsion Policy reference mandatory suspension for the infractions. The Expulsion Policy has a section entitled “7. Suspension Pending Recommendation for Expulsion.” That section does not set out any parameters for if and when a suspension is to occur. However, it does state:

Where a principal has determined that it is appropriate to impose a suspension pending recommendation for expulsion, the principal will follow these procedural steps.

26This section leaves the option open to the principal of determining that it is not appropriate to impose a suspension pending recommendation for an expulsion. This would encompass the infraction relied on in this case. This section does not merely set out the procedure for suspensions as suggested by counsel for the Respondent. Rather, it sets out the procedure to be used where the principal has decided that it is appropriate to suspend. Thus, based on a plain reading of the school board policy, the Respondent’s Expulsion Policy does not mandate suspensions pending expulsion for the alleged activity.

27In order to come within the ambit of section 310(1) 8 of the Act, the language of a school board’s policy would need to be explicit. The Board is unable to read mandatory suspension language into school board policy. The legislation is quite clear. It provides specific parameters under which activities are eligible for expulsion. Where a school board fails to address the issue or where, as here, leaves suspension to the discretion of the Principal, expulsion is not an option.

28The Board is bound by the statutory provisions. It was up to the Respondent to establish that it had a policy compliant with the legislation. The Respondent does not have the requisite policy. There is no statutory authority to expel the pupil under section 310(1) 8 of the Education Act. Based on this finding, the Board did not proceed to hear evidence on the alleged activities or mitigating and other factors.

DECISION

29The Board made the following orders on March 21, 2011:

1. The expulsion of [the pupil] from all schools of the Rainbow District School Board is quashed.
2. [The pupil] is reinstated to her school, [School A].
3. The record of this expulsion is and shall be expunged from all records of the Respondent and its schools.

Sheena Scott Presiding Member

John Spekkens Board Member

Mary Wong Board Member