Appellant v. Toronto Catholic District School Board, 2013 CFSRB 23

CHILD AND FAMILY SERVICES REVIEW BOARD

Appellant

v.

Toronto Catholic District School Board

REASONS FOR DECISION

Date: May 3, 2013

Citation: 2013 CFSRB 23

Indexed as: Appellant v. Toronto Catholic District School Board (Education Act s.311.7)

INTRODUCTION

1This is an appeal to the Child and Family Services Review Board (“Board”) of the February [ ], 2013 expulsion of S.K. (the “pupil”) from all schools of the Respondent. The Appellant is the pupil’s father.

2The Board had to decide if the pupil engaged in an activity that is eligible for expulsion under the Education Act, R.S.O. 1990, c.E.2, as amended, (“Act”). If he did engage in such an activity, the Board would then examine the mitigating and other factors to determine whether expulsion is the appropriate consequence and if so whether expulsion should be from all the Respondent’s schools or from his school only.

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.

4The Appellant’s position is that the pupil should not be expelled. The Appellant questions the finding that the pupil committed the acts in question and puts forward concerns about the lack of proper consideration of the mitigating and other factors. The Appellant also raises issues of undue delay with respect to the timing of the expulsion hearing, which took place 73 academic days after the suspension of the pupil on October [ ], 2012.

5A preliminary 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 (rather than permissive) under school board policy, then this conduct falls within the realm of activities that could lead to an expulsion.

6The 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 April 30, 2013, the Board quashed the expulsion, ordered that the pupil may return to his school and expunged the record of the expulsion. These are the reasons for that decision.

BACKGROUND

7The pupil is sixteen years of age and was a student at [ ], (the “School”). On October [ ], 2012, the pupil was suspended from the School after he verbally threatened to kill a female student. On February [ ], 2013, the pupil was expelled for engaging in serious or repeated misconduct by threatening death to another student at the School.

8The Appellant appealed the expulsion on April 2, 2013.

ANALYSIS

9The 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 oral submissions from the parties and reviewed the Respondent’s policy with respect to suspensions and expulsions. 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.

10Section 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)

11The provision of the School Board’s policy that was relied upon to expel the pupil is as follows (emphasis added):

The following infractions may result in a suspension pending possible expulsion in accordance with the Board policy:

• Possession of explosive substance;

• Serious or repeated misconduct;

• Refractory conduct; and/or

• Other – defined as any conduct injurious to the moral tone of the school or to the physical or mental well-being of others.

Mitigating Factors and Other Factors

In considering whether to suspend a pupil or whether to recommend to the Board that a pupil be expelled, a principal will take into account any mitigating factors or other factors prescribed by the regulations.

12The Board’s approach to the application of section 310(1)8 was discussed in N.N. v. Rainbow District School Board, 2011 CFSRB 9 at para. 13. The Board agrees with this approach, as follows:

The 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.”

13In the case before the Board, the Respondent conceded that the language contained in its policy was permissive not mandatory. However, the Respondent argued that, notwithstanding the language, the policy is intended to mandate suspension, and should be interpreted in that way.

14The Board adopts and relies upon the reasoning in N.N. v. Rainbow District School Board, above at paras. 27-28:

In 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.

The 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.

15The Respondent’s policy provides that incidents of serious or repeated misconduct may result in suspension. The policy does not require the principal to suspend on this ground. As such, there was no proper basis for an expulsion pursuant to s. 310(1).8 of the Act and the decision to expel was not an option available to the Respondent.

16Having reached this conclusion it was not necessary to consider any other issues in dispute on this appeal.

DECISION

17The Board makes the following orders:

1. The expulsion of the pupil from all schools of the Toronto Catholic District School Board is quashed.

2. The pupil may return to the School.

3. The record of this expulsion is and shall be expunged from all records of the Respondent and its schools.

Michele O’Connor

Michele O’Connor

Presiding Member

Andrea Himel

Andrea Himel

Board Member

Robert Lefebvre

Robert Lefebvre

Board Member