JS v. Rainbow District School Board, 2017 CFSRB 25

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JS

Appellant

• and –

RAINBOW DISTRICT SCHOOL BOARD

Respondent

REASONS FOR DECISION

Date: September 12, 2017

File Number: SS17-0013

Citation: 2017 CFSRB 25

Indexed as: JS v. Rainbow District School Board (EA 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 (the "Board”) of the June [ ], 2017 decision of the Rainbow District School Board (“the School Board”) to expel the Pupil from all schools of the School Board. The Pupil’s mother is the Appellant in this case.

2The Board heard the appeal on July 27, 28 and August 9, 2017. The Board had to decide whether the Pupil’s expulsion was appropriate and, if so, whether he should be expelled from his school alone or from all schools of the School Board.

3On August 14, 2017, the Board ordered that the expulsion order be quashed and that the record of expulsion be expunged from the Pupil’s Ontario Student record (“the OSR”). The reasons for this order are set out below.

BACKGROUND

4The Pupil is 13 years old and at the material time was in Grade 8 in a composite school of the School Board, attended by students in Grades 7 to 12.

5The incident which resulted in the School Board’s decision to expel the

Pupil from all schools of the School Board occurred on May [ ], 2017.

6The Appellant admits that the incident occurred, namely, that the Pupil had a knife, which is acknowledged to be a weapon; that he opened the knife; and that he cut the knee of another pupil. In this decision, the Board refers to the other pupil who received the cut as Pupil A.

7The Appellant alleged that this event was an aberration in terms of the Pupil’s normal behaviour; that it resulted from his reaction to bullying which had been going on for some time; and that the School Board did not adequately and appropriately consider the mitigating and other factors set out in the legislation, when it decided to expel him from all schools of the School Board.

8The Respondent School Board acknowledged that the fact that the Pupil cut Pupil A’s knee may indeed have been an accident, but stressed that the presence of the knife, an acknowledged weapon, in the Pupil’s backpack; the fact that he took it out of his backpack and opened it, was adequate proof of his intention to use it.

9The School Board immediately suspended the Pupil from May [ ], 2017, the date on which it was informed of the event, to June [ ], 2017. This is an appropriate response to the possession of a weapon, in accordance with the

Code of Conduct. The School Board alleged that it had no option but to follow the suspension with expulsion, due to the fact that it considered the Pupil to represent a danger to other pupils and determined that his presence in any school of the School Board represented an unacceptable risk to all other students.

10The Board heard from seven witnesses. These witnesses were the school’s principal and vice-principal, the Appellant, two friends of the Pupil’s family, who provided information about the Pupil’s non-school involvements, including sports and extra-curricular activities, and two individuals who had provided counselling to the Pupil. Their evidence is only cited in this decision as it is material to the decision made by the Board.

11The Board noted that none of the witnesses were actually present at the incident on the school bus, which precipitated the School Board’s decision to expel the Pupil. Neither the Pupil nor Pupil A gave evidence or made a statement to the Board. Therefore, in order to understand the details of the incident on the basis of which the Pupil was expelled, the Board had to rely on hearsay evidence gathered and interpreted by the adults who interviewed these two students, as well as other students of the School Board.

12In addition to the witness statements, the Board considered a number of written documents. These included the report that was submitted to the Discipline Committee, which made the expulsion order; the principal's handwritten notes from her interviews; the vice-principal’s handwritten notes of his student interviews; the Pupil’s report cards as well as a number of letters submitted by the Appellant, which supported the Appellant’s request to quash the School Board’s order for expulsion.

THE EVENTS OF MAY [ ], 2017

13On Monday, May [ ], 2017, the Pupil attended school as usual. At the end of the school day, he boarded his usual school bus to travel home.

14On the school bus, he chose to sit next to Pupil A, who is a 15 year old girl in Grade 10. This was not unusual in that they had sat together on the bus on other occasions and it appeared to be of no stated concern to Pupil A.

15Apparently, there was some joking and bantering going on between the two students. Pupil A reported to the vice-principal, when interviewed later, that she and the Pupil were joking. At some point, Pupil A called the Pupil by a name that he objected to and considered offensive. It is not clear whether that name was “Dumbo”, as reported by him, or “Ginger”, as reported by her. The Board did not determine which of these names were actually used by Pupil A. But the Board accepted that, whichever of these names was actually used on this occasion, the Pupil, who had faced name-calling and bullying on many previous occasions and thus was sensitive to such name-calling, reacted negatively to the term.

16Pupil A reported that the Pupil told her to “take it back”, which she refused. He then pulled out his Swiss Army knife from his backpack. While the exact details are not entirely clear from the reported statements, there is consensus that he opened the knife, which he did not deny at any time, and waved it around.

17With the open knife, the Pupil “tapped the knee” of Pupil A (these were her reported words) and she had a cut, about 1 inch long that bled. She reported, when questioned by the vice-principal, that the Pupil apologized and in the absence of a Band-Aid, attempted to staunch the blood with a piece of binder paper.

18Pupil A did not at that time or the next day report the incident either to her parents or to the school’s administration. She went to school the next day and travelled on the school bus as usual. When questioned by the vice-principal about the event, she stated that she was worried that “people” (her mother and the school) would “react in a big way”. That is apparently why she chose not to tell them about the incident.

19The Pupil also did not tell his parents about this incident. He also went to school the next day and travelled home on the school bus.

THE EVENTS OF MAY [ ] and [ ], 2017

20Two Grade 10 female students, who do not ride the school bus, came forward on the morning of May [ ] to report the incident to the vice-principal. One of the two girls apparently commented to the vice-principal that Pupil A and the Pupil “did not get along”.

21The vice-principal called Pupil A to the office to ask her about the incident. During this interview she apparently was quiet and described the event as set out above in paragraphs 16 and 17. When asked, she did not say that she did not get along with the Pupil and in fact referred to “often joking around” with him. Pupil A was apparently calm and did not want to have her mother contacted. She was worried that her mother would approach the Pupil’s family, whom she knows quite well. The principal, who joined this interview a little later, explained that they had to inform her mother. They called her mother on the telephone. This was the first that Pupil A’s mother had heard of the incident and was reported by the principal to be “shocked”.

22Subsequently, on these two days, May [ ] and [ ], the vice-principal interviewed 7 additional students who were on the bus on May [ ].

23The reports gathered by the vice-principal from the other students on the bus included comments such as: “she said ouch”, “lots of people were coming to look”, “I didn’t really see what happened”, “she seemed fine, so that is why I didn’t come forward”, “there was definitely blood”, “he had the knife out for about two minutes”.

24The Board noted that the bus driver was not interviewed about the event at any time and apparently was either not aware of the incident at all or chose not to report it to his company. The vice-principal stated that a follow up contact with the bus company had no record of the event.

25The vice-principal then decided to interview the Pupil, who arrived late to school on that day, as result of having a pre-arranged medical appointment.

26The interview began with just the vice-principal and the Pupil present. The Pupil described the events of the bus incident. He stated that he didn’t mean to cut Pupil A’s leg, but acknowledged that he did so. At this point there had been no contact or communication with the Pupil’s parents. In response to a question, the vice-principal acknowledged that the matters that he was questioning the Pupil about had a potential criminal component, but he stated that he did not think that it was necessary to question the Pupil in the presence of an appropriate adult, other than himself, i.e., a parent.

27The principal joined the vice-principal part way through the interview and together they searched the Pupil’s backpack, where they found the knife.

28Then, with the Pupil quite upset, the Pupil’s parents were contacted. His mother was unavailable and his father came to the school. The interview continued. The Pupil’s father talked about the name-calling and bullying that his son faced on a regular basis, especially since he had had a haircut during March

break. He suggested that perhaps the Pupil “lashed out”, in response to bullying. Apparently the Pupil agreed.

29During this interview, there was also some discussion about the bullying incident that the School Board explored and investigated during November 2016, when the Pupil had been called some homophobic names by another student. In his evidence, the vice-principal stated that that incident had been appropriately dealt with and had no bearing on the events on the school bus.

30At the end of this interview, the principal informed the Pupil and his father that the Pupil will be suspended for 20 days and stated that this will likely be followed by an expulsion. The Pupil left school with his father.

31In the afternoon of the same day, the principal met with Pupil A and her mother. In her evidence, the principal referred to this meeting as being a “traumatic experience” and that they (Pupil A and her mother) appeared to be “distraught”. The Board noted that the letter submitted by the parents of Pupil A urging that the Pupil not be expelled counters this description of the mother’s reaction.

32The vice-principal briefed the principal on the interviews held on that day and agreed to provide his handwritten notes to the principal. It was agreed that the students who had been on the bus and who had not yet been interviewed, would be interviewed by the vice-principal on the following day.

33The day’s events concluded with the principal contacting the School Board superintendent to inform him of her decision to suspend the Pupil for 20 days and to recommend expulsion from all schools of the School Board. In accordance with School Board policy, she also contacted the police.

34As expected, a police officer visited the Pupil and his family that evening. While the Board did not hear from this officer, the Appellant reported that the officer commented that the Pupil had clearly made a “very bad choice” and that the event was “serious”.

35No charges were laid.

36The Appellant stated in her evidence that, as directed by the police, the Pupil has been and will continue to report to the police every three weeks for a three months’ period. He has also participated in counselling and some other programming, both at Restart (the School Board’s program for expelled students which he attended after his expulsion was confirmed by the Discipline Committee) and elsewhere, focused on behavioural management issues, controlling one’s reactions to events and developing and applying strategies to address difficult and challenging circumstances.

37On the same evening the Appellant received a letter from the principal to state that the Pupil has been suspended for 20 days from May [ ] to June [ ]. In this letter, the principal stated that the suspension cannot be appealed until such time that she concludes her investigation as to whether the Pupil should be expelled.

38Notifying the police initiated an additional process, called the Violent Threat Risk Assessment Notification (VTRA). While this process is not part of the School Board’s discipline and safe schools process, as mandated by the Education Act, it is apparently directly related to the expulsion process. Once the VTRA process is initiated, a notification is placed in the student’s Ontario Student Record (OSR), where it is expected to be retained for five years. Since it is not part of the expulsion process, it is not clear whether the Board’s decision in expunging the record of expulsion from the Pupil’s OSR, will also remove the VTRA Notification.

39The VTRA process requires parental consent, which the Appellant agreed to provide by telephone and subsequently in writing. Consent was given by the Appellant, the Pupil and the Pupil’s father, as requested.

40On the same evening, the Appellant sent an email to the principal and vice-principal. In this statement she set out the Pupil’s version of the May [ ] events, which he dictated to her. The Pupil stated that at some point during the bus journey Pupil A grabbed the knife, but then, laughing, gave it back to him. While there was no suggestion that this eliminated or excused the matter of the Pupil having a knife, it raised an issue that the school could have explored, i.e., did both the Pupil and Pupil A handle the knife? There was no such exploration carried out. The principal commented that while she did not “disbelieve” this information, she preferred the other statements that she heard through the vice- principal from the other students. Therefore, she saw no reason to investigate this particular point by re-interviewing the Pupil, Pupil A or any of the other students on the bus.

THE EVENTS BETWEEN MAY [ ], 2017, THE DATE OF THE SUSPENSION LETTER TO JUNE [ ], 2017, WHEN THE DISCIPLINE COMMITTEE OF THE SCHOOL BOARD MADE ITS DECISION

41On May [ ], 2017, the principal met with the superintendent and the vice- principal to discuss the previous days’ interviews and whether there were any mitigating factors to consider.

42The principal stated in her evidence that all three of them agreed that expulsion from all schools of the School Board was the only right decision.

43The first VTRA meeting was held at 8:30 a.m. on May [ ], 2017. The Pupil’s parents were not invited to attend. As part of this meeting, the Pupil’s locker was searched and his drawings were removed for consideration. On the

same day, the principal informed the Pupil’s father that it was recommended that the Pupil be taken to a crisis center for an assessment, due to the content of the artwork.

44Although the Pupil’s parents felt that the reaction to the Pupil’s drawings was unnecessarily strong, since he had always drawn some macabre pictures, they did initiate and followed up on accessing counselling for the Pupil with two different community agencies.

45Also on May [ ], 2017 the principal sent a letter to the parents of the Pupil to state that, as a result of her investigation following the Pupil’s suspension, she is recommending to the School Board that the Pupil be expelled.

46This letter was followed on May [ ], 2017 by a letter from the superintendent to confirm that the Discipline Committee of the School Board will have pre-hearing on May [ ], 2017 followed by the formal hearing on June [ ],

2017 where a determination will be made regarding this recommendation.

47On May [ ], the Appellant requested a copy of the Pupil’s OSR from the school and a copy of the minutes of the VTRA meeting held the previous day.

48Eventually, the Appellant was provided with a copy of the Pupil’s OSR on

May [ ], 2017. This was after the pre-expulsion hearing meeting.

49As part of the materials that the Appellant received for the pre-hearing meeting, she noted that at the first VTRA meeting on May [ ], 2017, there was a reference to an action item suggesting a discussion of “possible IP for math and non-verbal LD with Student Success for Grade 9”. She queried this statement by email to the principal.

50In her response to the Appellant’s email, the principal did not elaborate on this matter. She did, however, query the background information related to the Behaviour Safety Plans that are contained in the Pupil’s OSR and the references to the counselling that the Pupil had received during 2013, as part of the Plan.

51On May [ ], 2017, the VTRA met again. Following this meeting, the principal, on May [ ], 2017, the day after the Discipline Committee’s pre-hearing, interviewed a number of students regarding the allegations of bullying that had been made on May [ ], 2017.

52The Board noted that on May [ ], 2017, counsel for the Appellant contacted the School Board, in writing, to express concern that the package of information provided to the Appellant contained no reference to or information about the allegations of bullying or even name-calling, which had been raised with the vice-principal and principal at the May [ ], 2017 meeting by the Pupil and his father and subsequently by the Appellant.

53There was no response to this communication and the same package of information, without any references to the allegations of bullying or any other potentially mitigating factors, was considered by the Discipline Committee at its meeting on June [ ], 2017.

54The principal stated in her evidence that she did not include this information in the materials presented to the Discipline Committee on June [ ],

2017, because, in spite of accepting that name-calling precipitated the events on the school bus on May [ ], 2017, in her opinion, and based on what she knew, there had been no “bullying”. She stated that, in her opinion, name-calling is not the same as bullying and in this instance it was definitely not bullying.

55On June [ ], 2017, the Discipline Committee of the School Board confirmed the recommendation to expel the Pupil from all schools of the School

Board. The parents of the Pupil were notified in writing of the School Board’s decision on June [ ], 2017. They submitted their appeal to the Board on June 19,

RELEVANT LEGISLATION

56The issues for the Board to consider are whether the Pupil engaged in an activity that can lead to expulsion and, if so, whether he should be expelled. If the Pupil should be expelled, the question is whether the expulsion should be from his own school only or from all the Respondent’s schools. In order to make this determination, the Board must rely on the relevant sections of the Act and the related Regulation.

57Section 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.

58Under Ontario Regulation 472/07, section 2, the following mitigating factors shall be taken into account:

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

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

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

59Under the same Regulation section 3, 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:

1. The pupil’s history.

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

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

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

5. The age of the pupil.

6. 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.

60Section 2 of the Criminal Code includes a definition of weapon. The Board accepts that both parties agreed that the Swiss Army knife in the Pupil’s possession and used during the May [ ] bus incident is a weapon.

61Nevertheless, in order for the Board to consider the applicability and relevance of section 310(1)(2), of the Act, i.e., was the alleged weapon used to cause or threaten bodily harm, the Board should also ask the following questions:

• Did the Pupil in fact use the object to cause death or injury or to threaten or intimidate any person?

• Did the Pupil intend to use the object to cause death or injury or to threaten or intimidate any person?

See R. v. D.A.C., 2007 ABPC 171

ANALYSIS

Did the Pupil possess a weapon?

62Since the Appellant admitted that the Pupil was in possession of and utilized a weapon, namely the Swiss Army knife, the Board accepts section

310(1)(1) of the Act has been satisfied.

63The Board accepts that, as a result, the principal had no option but to suspend the Pupil for the maximum 20 days for the possession of a weapon.

Did the Pupil intend to harm or threaten Pupil A?

64The Appellant argued that the circumstances demonstrated that the Pupil did not intend to harm or threaten Pupil A, because the cut on her knee was accidental.

65The Respondent argued that, while the cut was perhaps accidental, taking out the knife and saying that he wanted her to stop (the name-calling), fully satisfied the “intention” requirement of the Act.

66The Board accepts that the Pupil did not intend to harm Pupil A, on the basis that both parties agreed that the cut was accidental and minor. Neither party suggested that the Pupil set out to deliberately cut Pupil A. However, the Board also accepts the School Board's argument that taking out the knife and

opening it, while telling her to “take it back” can be construed as an intention to threaten.

Did the Pupil’s action have a negative impact on the school climate?

67In order to consider whether the Pupil’s actions have a direct and negative impact on the school climate, it is incumbent upon the School Board and now on the Board to consider the components of a positive school climate. The Ontario Government’s approach to safe schools describes a positive school climate as one where “everyone, including parents, students, staff and community members, feel welcome and respected”. A key component of this is to consider whether, as a result of a particular set of actions of an individual, others, including students and staff, are made to feel afraid and threatened.

68The Board does not accept that the facts of this case satisfy the requirement that this incident negatively impacted the school climate of the Pupil’s school to such an extent, that expulsion was the only appropriate recourse. There was no evidence presented by the Respondent School Board, other than the statements of the principal and vice-principal, which were not supported by their written documentation, that the student body or school staff felt threatened by the Pupil and his continuing presence at the school.

69In this, the Board relies primarily on the handwritten notes of the vice- principal of her interview with Pupil A and with the other students. Neither Pupil A nor the other students who were aware of the presence of the knife on the bus indicated that they felt threatened or at risk. The fact that the bus driver on the bus was not even aware of the event further supports that, while serious, this was not an incident which resulted in a whole group of students being particularly upset or afraid.

70The letters provided in support of the Pupil stated that the writers did not believe that the Pupil had any intention to hurt Pupil A or other students. While the Board accepts that the number of letters only represent a small percentage of the student population of the school attended by the Pupil and Pupil A, the Respondent School Board did not present any evidence to support the allegation that the school population, as a whole, felt “at risk” or that the Pupil’s presence represented an unacceptable safety risk to all or even some other students.

71The Board particularly relied for this assertion on the letter written by the parents of Pupil A to the School Board on May [ ], 2017. In this letter Pupil A’s parents expressed concern about the planned expulsion and stated that it was their “hope that The Pupil is not expelled and can continue his studies at the same school with the proper support.” Although the Board notes the Respondent’s assertion that the two families know one another and live in a relatively small community, it believes that, if the Pupil’s continued presence at the school had represented a real concern to any parents, that would likely have been the parents of Pupil A. They did not express any such concern nor did they simply remain silent on the matter. They actively opposed the anticipated expulsion in their letter to the School Board. At no time was there any evidence before the Board that Pupil A is afraid of the Pupil. This letter strongly countered the principal’s assertion that the parents of Pupil A were “distraught” or “traumatized”, as a result of the event.

Mitigating factors

72The legislation requires that before recommending expulsion, the principal must consider the mitigating factors contained in Regulation 472/07 section 2.

73The Board heard no suggestion from any witnesses that the Pupil does not have the ability to control his behaviour.

74The Board noted that the Pupil’s OSR contains a Behaviour Safety Plan, which was developed in 2013/14 and continued to be maintained during the

2014/15 school year. The Behaviour Safety Plan was not linked to an Individual Education Plan at that time or at any time since then. He received counselling arranged by his parents from a community agency in 2013. The Board heard the evidence of his counsellor who stated that the Pupil had been able to develop and apply strategies to overcome the anger issues that he had had in the past.

75The Pupil’s Grade 8 report card from February 2017 does not contain any reference to a current Behaviour Safety Plan, although it suggests that the Pupil “Needs Improvement” in the area of self-regulation.

75Clearly the matter of the earlier Behaviour Safety Plan and its potential relevance were raised at the VTRA meeting, since the principal asked the Appellant on May [ ], 2017, the day on which the pre-hearing meeting was held, to clarify the matter.

76The Board heard from the Appellant and from two counsellors who had worked with the Pupil in 2013 and again in 2017, that they did not believe that there were any concerns about the Pupil’s current ability to control his behaviour.

77Therefore, the Board accepts that the Pupil is indeed able to control his behaviour.

78The second mitigating factor that must be considered is a pupil’s ability to understand the foreseeable consequences of his behaviour.

79The Board heard evidence from both the Appellant and the Respondent that the Pupil is a “bright child, who has no cognitive issues”. Therefore, the Respondent School Board stated that the Board cannot consider or rely on an argument that the Pupil does not have the capacity to understand the consequences of using a weapon in the way that he did.

80The Appellant asked the Board to consider the Pupil’s age, the fact that he had been bullied in the past and that he was really upset when an older student went beyond joking, as he saw it, and engaged in the type of name-calling that had been so hurtful to him in the past and in particular during the previous few weeks.

81The Board considered these arguments. On the balance of probabilities, it accepts the Appellant’s argument that, a bright child who has no cognitive deficits, but who is only 13 years of age, who has been bullied in the past and is suddenly faced by unexpected name-calling which he interprets as a continuation of the bullying that he had been struggling to deal with, may not fully foresee or adequately consider the actual serious potential consequences of pulling out a knife.

82The third mitigating factor is whether the continued presence of a pupil in the school creates an unacceptable risk. As stated above, the Board is not convinced by the arguments of the Respondent that the Pupil’s continued presence in this school and, further, in any school of the School Board, represents an unacceptable risk to the system, which can only be controlled or overcome by expelling him from all the schools. There was no evidence before the Board that either other students or teachers of the Pupil’s school or other schools were afraid of the Pupil’s continued presence.

83The Board noted that the principal’s report to the Discipline Committee of the School Board contains no information about considering and discussing any mitigating factors.

84When questioned, the principal reported that although she considered mitigating factors, she rejected considering them on the following grounds:

• The Pupil wanted Pupil A to stop calling him names that he did not like;

• He “consciously” had a knife in his bag and he knew this all along;

• He meant to hit her with his knife to make her stop;

• He may not have meant to cut her, but he did so and drew blood;

• Two students reported the incident, and said that they were concerned, although Pupil A did not report it or state that she was concerned;

• Pupil A’s mother was very concerned;

• She heard from other students that the Pupil had the knife with him on a regular basis.

85Therefore, the Board notes that the decision to expel the Pupil from all schools of the School Board was made by the Discipline Committee without having any knowledge of or information about any actual or potential mitigating factors.

Other factors

86Regulation 472/07 states in section 3 that additional factors shall be taken into account if they mitigate the seriousness of the activity for which the pupil is expelled.

87Regarding the Pupil’s history, the Board heard evidence from the Appellant, from other witnesses who know him and/or have been involved with him outside of school activities, as well as the principal and vice-principal.

88Although the Board does not generally consider character evidence, it notes the many positive statements that were presented about the Pupil’s athletic and community involvements and general demeanour.

89Clearly, there are no concerns about the Pupil’s academic history.

90The principal gave evidence that the earlier Behaviour Safety Plans indicated that the Pupil has had conflict in the past with other students and therefore, in her opinion, he would benefit from attending the School Board’s Restart program. In fact, in her opinion, he clearly needs the non-academic

components of the Restart program. However, she did not include in her report to the Discipline Committee the information about the Behaviour Safety Plan and whether that should be considered as a factor in determining the outcome of the expulsion hearing.

91The principal described that the Pupil, along with some other students, had been suspended for four days just over a month before the knife incident. That suspension was for “the inappropriate use of technology”, namely the sending of inappropriate pictures to other students via social media. The principal stressed that this demonstrated the Pupil’s propensity for making bad choices.

92The principal also cited this earlier suspension as an example of a progressive discipline approach that had been applied.

93Regarding the other factors that this section of the Regulation sets out, the Board accepts that the Pupil has not been identified as having an exceptionality nor has he had an IEP. Although the Board notes the alleged reference to a non- verbal learning disability, there is no evidence that there has been an assessment which would lead to such an exceptionality identification.

94The Board notes that the principal dismissed the suggestion that the Pupil’s age was a mitigating factor or that the expulsion would affect the Pupil’s ongoing education. She stated that the Restart program would be most appropriate for his education for the coming semester (or perhaps longer), in spite of the fact that the Restart program does not include any physical education opportunities, offer access to any sports and does not offer French as an academic subject. According to the Appellant, these omissions would significantly impact the Pupil’s ongoing education. Further, the principal stated that the Appellant’s concerns about the Restart program, including the cited program component issues, the fact that most of the students attending are much

older than the Pupil as well as the distance from the Pupil’s home are not valid concerns about the Pupil’s ongoing education.

95The Board also notes the Appellant’s argument that the Pupil is only 13 years old, which makes him one of the youngest students in Grade 8. The principal dismissed this as a mitigating consideration.

96The listing of “other factors” in this section of the Regulation also focuses on harassment or bullying. A great deal of the evidence from both parties focussed on whether the name-calling that had been reported by the Pupil in explaining the events of May [ ] is a form of harassment or bullying.

97The Board heard evidence from both parties that the Pupil had reported bullying, including the use of homophobic slurs against him that he faced during the previous November. His parents reported this to the school and the school responded by investigating the allegations. The Board heard from both the principal and the vice-principal that this had been effectively dealt with.

98In spite of this earlier incident, the principal dismissed the allegation that bullying was a mitigating factor or a factor that she should have explored and considered in relation to the May [ ] incident. She stated that, as far as she knew, the alleged bullying had not previously been reported to the Pupil’s parents and teachers prior to his being questioned about the use of the knife.

99She stated that she did not believe that the Pupil’s claim of being called offensive names, such as “Dumbo”, was true. Further, she questioned whether, even if true, name-calling of the kind that the Pupil reported amounted to harassment or bullying. She stated that, in her opinion, name-calling only becomes bullying if it is both persistent and is made “with the intent to harm”. For these reasons, her report to the Discipline Committee did not make any reference to any of these allegations.

100The Board notes that after the May 26 VTRA meeting, the principal interviewed a number of students about the allegations of bullying. She asked a number of students whether “they had ever treated the Pupil badly?” In her description of these interviews she described that none of the students questioned admitted anything other than some joking comments which many students engaged in, including the Pupil himself. She gave evidence describing what she discovered about the Pupil’s involvement in such incidents, including the use of the term “Jew” and the drawing of a swastika on a student’s desk.

101The principal stated that, while she accepted that name-calling might indeed have been the factor that precipitated the incident on the bus, she did not accept that such name-calling could or should be considered as bullying and therefore a mitigating factor.

Progressive discipline

102Progressive discipline is defined by the Ministry of Education

Policy/Program Memorandum No. 145 as follows:

Progressive discipline is a whole-school approach that utilizes a continuum of prevention programs, interventions, supports, and consequences to address inappropriate student behaviour and to build upon strategies that promote and foster positive behaviours. When inappropriate behaviour occurs, disciplinary measures should be applied within a framework that shifts the focus from one that is solely punitive to one that is both corrective and supportive. Schools should utilize a range of interventions and supports and consequences that are developmentally appropriate and include learning opportunities for reinforcing positive behaviour while helping students make good choices.

103It is clear to the Board that the discipline imposed on the Pupil in this instance by both the school, through the actions of its principal, and the School Board’s Discipline Committee was not progressive: it was primarily punitive.

104The Board noted that the principal stated in her evidence that the Pupil had had “progressive discipline” measures applied to his behaviour the previous spring when he was only suspended for four days. She stated that in her opinion “progressive discipline was not appropriate in this instance” because of the seriousness of the situation and therefore, she did not even consider it.

105Her comments on May [ ], about the “black and white” nature of the situation, i.e., that she immediately referenced the expulsion of the Pupil as the expected outcome, even before all students had been interviewed or factors had been considered, confirm that progressive discipline was not applied. The Board noted that the principal clarified the cited reference to “black and white” by stating that what she had meant was that suspension was compulsory, given the facts of this incident.

CONCLUSION

106In determining whether a student should be expelled, the Board is required to consider the facts and circumstances of the event that precipitated the School Board’s decision to expel the Pupil from all its schools, as well as the mitigating and other factors related to the incident and the Pupil’s circumstances. After considering all these factors, the Board found that expulsion from all schools of the School Board is not appropriate for the following reasons.

107Firstly, while the Board accepts the seriousness of the Pupil carrying and utilizing a weapon on the school bus, which should and did result in a mandatory

20+ day suspension, the Board is not convinced that the Pupil’s intentions to harm or threaten harm to Pupil A were clearly established in accordance with section 310(1)(2) of the Act.

108Secondly, the Board is not convinced that the Pupil, given his age and his previous non-violent behaviour, actually foresaw the potential and actual consequences of carrying and utilizing a weapon.

109Thirdly, the Board does not accept the allegation that the Pupil’s presence creates an unacceptable risk to all the students of the school in question let alone all students of all the schools operated by the School Board.

110Fourthly, the School Board, in making its decision to expel, was not made aware of the name-calling and bullying that occurred prior to the school bus incident, but not reported as an actual or even potential mitigating factor. The Board finds that name-calling of this nature is a form of harassment that cannot be considered anything other than bullying. While there is no doubt that certain forms of name-calling are part of the adolescent culture, it does not mean that it is appropriate or acceptable and therefore should not be considered as bullying. The Board accepts that it was bullying that led to the incident on the bus and therefore, it should have been at least considered as a mitigating factor.

111Fifthly, progressive discipline was not considered and applied by the school. The discipline imposed was solely punitive.

112In conclusion, the Board finds, on a balance of probabilities, that the evidence presented by the Respondent School Board, taken in conjunction with the mitigating and other factors addressed above that were apparently not fully considered, did not meet the burden of proof to result in the expulsion decision.

DECISION

113On August 14, 2017, the Board released the following decision:

1. The School Board's decision to expel the Pupil from all schools of the

School Board is quashed.

2. The Pupil may be enrolled for Grade 9 in any school of the School

Board, as determined by his parents.

3. The record of the expulsion is to be expunged from the Pupil’s Ontario Student record (OSR) and all other related documents, held by the School Board, shall be accordingly amended.

MOTION SUBMITTED BY THE APPELLANT

114Following closing submissions, in an unusual step, counsel for the Appellant introduced a motion asking the Board to order costs against the Respondent. In this motion counsel relied on the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA). The SPPA, which applies to all administrative tribunals in the province of Ontario, including the Board, and allows a tribunal to order costs against a party, where the tribunal determines that that party has been “unreasonable, frivolous or vexatious” or it has acted “in bad faith” (Section

17.1.)

115However, in order to consider the ordering of costs in accordance with this legislation, the tribunal in question has to have made rules under section 17.1.(4) of the SPPA regarding the ordering of costs. This Board has no such rule in place.

116As a result and because the Board has no mandate to order costs, the

Appellant’s motion was dismissed.

CONFIDENTIALITY ORDER

117Pursuant 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, except with an order of the Court or the Board, as appropriate.

Judy Finlay

Judy Finlay

Presiding Member

Jay Sengupta

Jay Sengupta

Vice Chair

Eva Nichols

Eva Nichols

Board Member