Appellant v. Toronto District School Board, 2014 CFSRB 28

Child and Family Services Review Board

Appellant

v.

Toronto District School Board

REASONS FOR DECISION

Date: June 9, 2014

Citation: 2014 CFSRB 28

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

INTRODUCTION

1This is an appeal under the Education Act, S.O. 2007, c.14, as amended (the Act), to the Child and Family Services Review Board (“Board”) of the November 20, 2013 expulsion of [first pupil] [second pupil] (“the pupils”) from their school. Both pupils were expelled and the Board heard the appeals jointly, as the same facts led to the expulsions of both pupils. The Appellant is the pupils’ mother.

2The Board had to decide if the pupils should be expelled and, if so, should the expulsion be from all schools or from their school only. The Board had to decide if the pupils engaged in an activity that is eligible for expulsion under the Act. If they 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 pupils engaged in an activity contrary to section 310(1)3 of the Act, that warrants their expulsion. The Appellant’s position is that the pupils should not be expelled. The Appellant questions the allegations about the activity and also raises mitigating and other factors.

4The Board heard evidence and submissions from the parties at a hearing held on April 28-30 and May 20, 2014.

5The Board determined that the pupils did commit a physical assault on another person that caused bodily harm requiring treatment by a medical practitioner, an activity for which they could be expelled. On May 30, 2014, after considering the mitigating and other relevant factors, the Board determined that the 20 day suspension was an appropriate consequence for the act and, as a result, quashed the expulsion from the pupils’ school, and expunged the records of the expulsion. These are the reasons for that decision.

BACKGROUND

6On October 17, 2013, the pupils were sixteen years of age and were grade 11 students at a secondary school within the Respondent school board, (the “School”). The pupils attended in the French Immersion Program.

7While the incident leading to the expulsion took place on October 17, 2013, issues between the pupils and the victim commenced in the weeks before. The pupils were robbed of their mother’s cell phone and of an undisclosed amount of money in the community by a group of youths. The victim of the October 17, 2013 assault, [the victim], is allegedly a friend of this group of youths. In the weeks following the robbery, the pupils allegedly asked the victim to return their mother’s cell phone numerous times and he allegedly told the pupils that he would ask his friends to do so. The victim denies having any knowledge of the robbery or of these conversations.

8On October 17, 2013 at the end of the third period, the pupil, [first pupil], was told by the victim that his friend [victim’s friend], also a student at the school, sent him a text message stating he wanted to see [the first pupil] outside after school. [The first pupil] believed the purpose was for a fight about his missing phone. The pupils believed [victim’s friend] was involved in the robbery. [The first pupil] followed the victim in the stairway outside the classroom down to the first floor and this is where the fight ensued. [The second pupil] joined the fight at some point.

9On October 17, 2013, the pupils were suspended from the School for 20 days for committing a physical assault on another person that caused bodily harm requiring treatment by a medical practitioner. The Principal investigated the incident and recommended that the pupils be expelled from all the Respondent’s schools.

10An Expulsion hearing was held on November 20, 2013 by the Respondent Board and the pupils were expelled from their school only. The pupils have attended separate schools of the Respondent Board since that date.

11The Appellant appealed the expulsion to the Board on April 8, 2014, after being provided with a copy of the expulsion letter on April 3, 2014.

ANALYSIS

12The issues for the Board are whether the pupils engaged in an activity that can lead to expulsion and, if so, whether they should be expelled. If the pupils should be expelled, the question is whether the expulsion should be from their school or all the Respondent’s schools.

13Section 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;

7.1 Bullying, if,

i. the pupil has previously been suspended for engaging in bullying, and

ii. the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person.

7.2 Any activity listed in subsection 306(1) that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor.

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.

14The Respondent alleged the pupils committed physical assault on another person that caused bodily harm requiring treatment by a medical practitioner contrary to sections 310(1)3 of the Act. The Board finds on a balance of probabilities that the pupils did commit an assault causing bodily harm that required treatment by a medical practitioner.

Events of October 17, 2013

15The victim initially testified that on the day of the events, he was in the same class as [the first pupil] when he received a text message from a friend asking him to tell [the first pupil] to meet him outside at the front of the school after school. The victim testified that when he told [the first pupil], the pupil started swearing at him and stated “If you want to punch me just do it now.” The victim testified that [the first pupil] followed him in the stairwell leading down to the first floor and continued to swear at him, telling him “I could throw you over this railing now if I wanted to.”

16The victim testified that [the first pupil] was then met by his brother, [second pupil], and another friend at the bottom of the stairs and that one of the twins pushed him from behind and the other one came in front of him and punched him. The victim stated he then fell down and was punched and kicked by both pupils. The victim described the fight more as a “jumping” as he states he did not swing a punch. The victim testified he did not see a doctor that day despite the school and EMS recommending it. The victim stated he felt fine and felt there was nothing wrong with him. The victim stated he went out that night to meet his friend [victim’s friend]. He did not seek medical care until the next day after having attended at school and provided his statement to the vice-principal who again asked him to go see a doctor. The victim testified that he had a black eye, bruises, bumps on the back of his head, redness and was swollen and in pain.

17The Respondent called a number of witnesses to the events to testify. The first was [witness 1]. She testified she was in the stairwell behind the victim when she saw two boys (the pupils) open the doors from the first floor and come to the victim yelling at him. This contradicts the victim’s version of the events. She then stated that those boys were the two pupils who then went up a few steps toward the victim and were “in his face”. She stated the pupils grabbed the victim by his shirt and pulled him down the stairs.

18She testified the victim was then on the floor with a large circle of people around him and he was trying to get back up when the pupils started hitting and kicking him. She stated the victim stopped trying to get up and covered his head. She stated that the victim’s friend [victim’s other friend] came and tried to help the victim but [ ], one of the pupils’ friends, took him in a head lock.

19She then heard someone behind her yell “teachers are coming” and the fight broke off. She testified she saw the pupils exit the school through the side door.

20She testified she saw the victim later, after the school lockdown was over, and his face was swollen and red. She also saw the victim the next day and stated his face was bruised but not as red as the day before.

21The Board also heard the testimony of [victim’s other friend], the victim’s friend, who stated he saw the victim go down the stairs and talking to the pupils. He indicated he was in the stairwell going from the third to the second floor and the victim was in front of him going from the secondto the first floor. He stated that suddenly, the victim was punched. At that time, [victim’s other friend] went down to push the pupils off his friend. He stated he pushed one then the other and was punched by both pupils. He stated he was then stopped by one of the pupils’ friends, [ ], who held him back. He stated that, by then, the victim was on the ground with one pupil punching him on the side of the head and one pupil kicking his legs.

22[The victim’s other friend] testified that the whole fight lasted about two minutes with the victim on the ground for about 30 to 40 seconds. He testified he saw the victim take some swings at the pupils. This also contradicts the victim’s testimony and is consistent with [the first pupil’s] testimony that he was hurt during the fight when he was punched in the nose.

23He also heard someone yell the hall monitors were coming and the fight broke off at that point. He testified he handed a cell phone back to one of the pupils who had dropped it during the fight “out of respect”. He then saw the pupils run outside through the side door. He picked up his watch and wallet and was taken to the office by a hall monitor where he wrote his statement during the school lockdown. That is where he saw the victim next.

24Neither of these two witnesses had heard rumours about a fight nor had they heard about the pupils having a cell phone and money stolen from them a few weeks prior to the events.

25The Board then heard from [ ], the school principal. She testified she was in the office when she heard over the radio there was an incident in the back hallway. She indicated the vice principal, [ ], was already in the area and she asked him to investigate. She then heard on the radio a hall monitor indicate that a student required medical attention and 911 was called. When the vice principal returned to the office, a number of student witnesses were there indicating that the pupils and [pupils’ friend] had attacked the victim. She sent the hall monitor to find the pupils and their friend [ ]. [The first pupil] and [pupils’ friend] were found in class and brought to the office but [the second pupil] was not found.

26At that point, the principal and two vice principals discussed the safety situation of the school and a lockdown was instituted at 3:05, as a soccer game was to start shortly with a visiting team arriving at the school. The principal stated she was concerned for the safety in the school if further attacks were to take place after school. The three were also concerned as two youths that did not attend the school were seen leaving the school by the vice-principal before returning to the office. The lockdown was lifted at 3:40.

27The principal was asked what her understanding of the events was. She stated that the victim had been jumped in the stairwell by the pupils and [pupils’ friend] and as a result he had sustained injuries but she did not see the victim that day. She stated the next day the victim’s face was quite swollen and he had bruises around his eyes and was holding his shoulder and neck. She indicated she issued a 20 days suspension to the pupils and initiated the investigation. A few days later, she met with the pupils and the appellant at another school. She stated the pupils both refused to write a statement. She stated [the second pupil] denied being there and [the first pupil] avoided stating he was involved and refused to answer questions. When asked if the pupils mentioned the theft of their mother’s cell phone, the principal indicated that they did not mention it to her and that she was not aware of any report made about a stolen cell phone.

28The vice principal testified that on October 17, 2013, he received a report from the community during the lunch break that there was a fight behind the school on the walkway leading to the neighbourhood shopping mall. He testified that he walked on the path and saw students coming back from the mall but found no sign of a fight. He met with a mall security guard who told him he would be on alert to any sign of trouble. The vice principal returned to the school and around 1:50 pm, between periods 3 and 4, the office was notified that there was a disruption in the back hall. When he arrived there, he saw no evidence of a fight but was told by the gym teacher the names of some witnesses. He was then asked by the principal over the radio to go to the front of the school where he saw the victim with a hall monitor who told him the victim was beaten. The vice principal testified he could see welts on the victim’s face and he told him to go inside the school. On his way back to the office, the vice principal saw two youths who are not students at the school walking out of the school. He questioned them about the nature of their business at the school and they refused to come inside and provide identification. He told them they were trespassing and they walked away.

29Upon his return to the office, he talked to some of the student witnesses who told him the pupils and [their friend] were involved in the fight. He asked the hall monitor to go find the three students and bring them to the office. [The first pupil] and [their friend] were located but not [the second pupil]. Shortly after, a group of students told the guidance counsellor that there were rumours of a group of rival students coming to the school with weapons. The vice principal testified that given the events that had transpired and the fact that a lot of the situation was unknown, coupled with his having seen unknown youths at the school and dismissal being scheduled to take place shortly, the decision was made to call a lockdown at the school to better control the dismissal. In accordance with School Board protocol, the police were called. After the school was secured, the lockdown was called off with no further problems.

30The vice principal testified that he saw the victim that day and described the injuries as inflammation and welts on the face, around the eyes. He described the victim as “very upset”. As he wanted to ensure the victim did not suffer serious trauma, the EMS was called and came during the lockdown. The victim was not taken to hospital as he refused to go. The EMS determined that he did not suffer a concussion.

31The vice principal spoke to the victim the next day when he came to school. He described the victim as “very vague”, trying to avoid implicating others but that he stated he was attacked by the pupils and their friend.

32The pupils’ guidance counsellor also testified. She stated she saw the victim the day of the incident and she described his injuries as “a couple of scratches on the face”. She added his cheek might have been swollen. She mentioned she saw the victim again the next morning at school and saw he had a couple of scratches around the eyes. When asked if the victim had a black eye, she answered that he did not, or that if he did, she could not remember it. The remainder of her testimony was not helpful, as she could not remember much information.

33The pupils both testified and described a somewhat different version of the events. [The first pupil] stated that he felt he was suspended for nothing as the fight of October 17 was self-defence, as the victim had told him to go outside to fight [the victim’s friend] to get his phone. He stated the victim came to him in class and told him he received a text from [the victim’s friend] telling him to go outside at the end of school and he could fight for his phone. [The first pupil] stated the victim told him there were 7 or 8 guys outside waiting for him. [The first pupil] stated the victim followed him out of class and into the stairwell. He told the victim he would not go outside and the victim “tried to put his hands on me and pull me” and said “come get your phone, come outside”. [The first pupil] stated this is when the fight started. He said that nobody saw how it started because “it was only me and him in the stairwell”.

34[The first pupil] testified that after the victim put his hands on him, he pushed the victim back who then punched him in the shoulder and he then punched the victim in the face and they started exchanging punches and then one of the victim’s friends arrived and tried to jump in. At that point, one of [the pupil’s friends] saw him, got his brother [the second pupil] and joined the fight. They then heard someone call out that teachers were coming and the fight broke off. [The first pupil] estimated the fight lasted 3 to 4 minutes in total. [The first pupil] stated the fight was already almost over when his brother arrived and he just fought with the victim’s friend briefly. [The first pupil] adamantly denied kicking the victim or the victim laying on the ground in a fetal position. He stated the victim is bigger than him, why would he do that?

35[The first pupil] stated after the fight, they all went outside briefly in the back of the school and then he went to his gym class and his brother came there as well. He was later taken to the office with his friend [ ] by a hall monitor who did not know his brother was in gym class as it was not his regular class. He went to the office where he stayed during the lockdown and was then taken home by his mother. [The first pupil] stated that while he was at the office, he heard the school secretaries talk about the school going in lockdown because some kids from another school were in the school banging on lockers. [The first pupil] also stated he was later told by some friends there were some kids from another school waiting outside the school.

36[The second pupil] provided a very similar version of the events. He testified that a friend of his came to get him because his brother was in a fight. He came to the stairwell by the door, coming from the first floor which confirms in part the version of [witness 1]. He explained that after the fight, both pupils and their friend [ ] left the school through the back doors but his brother then said “let’s get back to school, we did nothing wrong”. So they went back in and went to the gym and played basketball until his brother and [pupils’ friend] were taken to the office. When asked how come he was not taken, he explained that he was not supposed to be in gym class at that period but there was a supply teacher that day so he could be there as the teacher did not know the students’ names. He added they were all in time for the gym class which tends to confirm the fight only lasted a few minutes between periods 3 and 4. [The second pupil] denied hitting the victim at all, stating he only hit the victim’s friend who was hitting his brother.

37[The second pupil] also mentioned that the victim had told him in the hallway before first period that day that his friends would bring the phone back after school but they would have to fight for it and if they lost, they would not get the phone back. [The second pupil] stated he did not want to do it because he knew there would be a lot of guys there to fight them. When asked why he did not report this to the principal or vice principal he answered that if they told the guys would come another day. He also stated he could not report them because they do not go to the school and he does not know their names. He was asked why he did not report the victim if he was involved in the robbery. He answered that if he did, the victim’s friends would come and beat him up. This is why they kept asking the victim to tell his friends to bring back the phone. He added that a lot of people that day were telling him there were guys looking for him and his brother outside of school. During third period, he received a lot of text messages stating “watch out, lots of people looking for you guys.” As a result, the brothers had a plan to leave school that day through the back door.

38The Board also heard from another student, [student 2], that there had been an exchange during the lunch hour between [the first pupil] and his friend and a group of grade 10 students, some of them from the school, in the back of the school. [Student 2] testified that he was a few feet away from the group when he saw the grade 10 group “in their face” and yelling at [the first pupil] “if nothing happens we will beat you up”.

39The Board also heard from [third period teacher], the teacher of the class where the victim and [the first pupil] were in third period. She stated that at the end of the period the students were lined up to leave class when she saw the victim tell [the first pupil] he should go outside at the end of the day. She stated [the first pupil] then said “You think you can talk to me, this kid thinks he can talk to me, if you want to punch me, punch me right here” while jutting out his chin. She said the victim repeated that [the first pupil] should go outside after school. When asked if she heard the victim tell [the first pupil] there were 7 or 8 guys waiting outside she answered that she did not, she would have reacted if it was more serious.

40The Board finally heard from a last student [student 3] who stated she is a friend of the pupils and they never told her they had a cell phone stolen from them.

41The Board found that some of the Respondent’s witnesses lacked credibility based on inconsistencies between their versions of the events of October 17, 2014. However, taking into consideration all the versions of the events, there was enough evidence for the Board to find, on a balance of probability, that the pupils committed physical assault on another person that caused bodily harm requiring treatment by a medical practitioner contrary to section 310(1)3 of the Act.

42The appellant also raised the issue that the vice principal was acting in a discriminatory manner against her sons. She proposes that as a result, the relationship between the vice principal and her sons was not good and she suggests that this fact influenced the School’s decision with regards to their investigation of the events, the suspension and the recommendations on expulsion. The Board found no evidence to substantiate this allegation.

Expulsion: mitigating and other factors

43Given the Board found that the pupils committed physical assault on another person that caused bodily harm requiring treatment by a medical practitioner, an expellable activity under the Act, the Board must then determine if the pupils should be expelled and, if so, from their School only or from all the Respondent’s schools.

44In order to make that determination, the Board must consider the mitigating factors listed at section 2 and then the other factors listed at section 3 of O.Reg. 427/07 Behaviour, Discipline and Safety of Pupils:

2. For the purposes of subsection 306(2), 306(4), 310(3), 311.1(4) and clauses 311.3(7)(b) and 311.4(2)(b) of the Act, the following mitigating factors shall be taken into account.

3. The pupil does not have the ability to control his or her behaviour.

4. The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour.

5. The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.

6. For the purposes of subsection 306(2), 306(4), 310(3), 311.1(4) and clauses 311.3(7)(b) and 311.4(2)(b) of the Act, the following other factors shall be taken into account if they would mitigate the seriousness of the activity for which the pupil may be or is being suspended or expelled:

7. The pupil’s history.

8. Whether a progressive discipline approach has been used with the pupil.

9. Whether the activity for which the pupil may be or is being suspended or expelled was related to any harassment on the pupil because of his or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.

10. How the suspension or expulsion would affect the pupil’s ongoing education.

11. The age of the pupil.

12. In the case of a pupil for whom an individual education plan has been developed,

i. whether the behaviour was a manifestation of a disability identified in the pupil’s individual education plan, ii. whether appropriate individualized accommodation has been provided, and iii. whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct.

Ability to control own behaviour

45The Board did not hear evidence to suggest the pupils did not have the ability to control their behaviour. However, during [the first pupil’s] testimony, the Board witnessed behaviour suggesting that [the first pupil] struggles with self-control and with authority. The vice principal described [the first pupil’s] issue as more one of poor decision making than ability to control his behaviour. He described [the first pupil] as impulsive, disrespectful and angry. He stated [the second pupil] was very similar and added that both pupils are very intelligent but choose to engage in inappropriate behaviours.

Ability to understand foreseeable consequence

46The Board heard no evidence to suggest the pupils did not have the ability to understand the foreseeable consequences of their behaviour.

Continued presence in the school causing unacceptable risk

47The Board found that the pupils’ continuing presence in the school did not create an unacceptable risk to the safety of any person. The evidence accepted by the Board showed that the pupils committed the assault in the context of a belief they were facing a threat to their safety. While the Board found that the nature and proportionality of the pupils’ response to the imminent threat of force from the victim’s friend was not reasonable in the circumstances, it was reasonable for [the first pupil] to believe he was about to be assaulted by the victim’s friends outside of the school.

48The evidence heard by the Board did not show any other incident where the pupils were involved in violent activities.

Other factors that mitigate the seriousness of the activity

49The Board then turned its mind to whether any of the other factors applied to mitigate the seriousness of the activity for which the pupils were suspended and then, expelled. Specifically, the other factors the Board found relevant in this case are as follows.

The pupils’ history

50In the background of the incident that occurred on October 17, 2013 is the pupils’ account of the robbery that was committed on them in the prior weeks. This robbery was described as having occurred off school property by a group of youths, some of whom were believed to be students at the school. The victim was clearly identified by the pupils as being friends with these youths, while he did not participate in the robbery itself. The victim denied being involved or knowing anything about the cell phone robbery. The Board does not accept this. In the weeks following the robbery, the pupils asked the victim to intercede with his friends to return the cell phone. According to the pupils, the victim kept telling them that he would have the phone returned to them and never denied knowing the individuals involved. The fact that it is the victim who received a text message to tell [the first pupil] to go outside after school creates a connection between the victim and the pupils’ version of the events. These exchanges culminated on the day of the incident where [the first pupil] was told by the victim that he could have his phone that day but he would have to fight for it.

51The Board finds that the pupils’ version is credible and it is corroborated in part by the testimony of [student 2], one of the Respondent’s witnesses, who testified he heard an exchange between some students and [the first pupil] at lunch time before the events of the fight. Other students also were talking about a fight outside the school and hearing rumours about outsiders coming with weapons. This evidence comes from the vice principal.

52In the context of these events, the Board finds it was reasonable for [the first pupil] to believe he faced being beaten up by a group of youths if he went outside as requested by the victim. [The first pupil] indicated he felt threatened by the victim’s comments in the classroom and the stairwell and the Board finds this both believable and reasonable. Even though the Board found that the way in which [the first pupil] responded to the threat was not reasonably proportionate to the threat itself, it is nonetheless enough to mitigate the actions of [the first pupil] and of [the second pupil] as a result.

Whether a progressive discipline approach has been used with the pupils

53The Board found the Respondent did not use progressive discipline methods during the previous incidents resulting in suspensions. The Board found that this fact mitigated the seriousness of the event as the pupils were not provided with an appropriate educational component which could have improved their response to the current events. While the Board recognizes that the Respondent offered some services to the pupils, such as a referral to a social worker, the Board finds that it was not sufficient and that the previous suspensions showed a pattern of disproportionate number of days of suspension given the nature of the “offences” which almost exclusively related to issues of disrespect for authority figures at school and range as high as 7 days.

CONCLUSION

54The Board therefore found, on a balance of probabilities, that the whole of the evidence presented by the Respondent did not meet its burden of proof and, taken in conjunction with the mitigating and other factors as stated above, was not sufficient to result in the expulsion of the pupils.

DECISION

[55]​ On May 30, 2014, the Board released the following decision:

1. The expulsion of the pupils, [ ] and [ ], from their school of the Toronto District School Board is quashed.

2. The pupils may return to any school of the Toronto District School Board.

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

CONFIDENTIALITY ORDER

56Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.​

SUZANNE GILBERT ​​​​​​​______________________ ​​ Suzanne Gilbert ​​​​ Presiding Member

​​​​​​ NATHALIE FORTIER ​​​​​​​​​​​​​​​​​​​​______________________ ​​​​​​ Nathalie Fortier ​​​​​​​ Board Member