MM v. Rainbow District School Board, 2018 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MM

Appellant

-and-

Rainbow District School Board

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: May 9, 2018

Citation: 2018 CFSRB 8 (EA s.311.7)

Indexed as: MM v Rainbow District School Board

WRITTEN SUBMISSIONS

MM, Appellant

Susan von Achten, Counsel

Rainbow District School Board, Respondent

Kathleen Stokes, Counsel

Introduction

1This is an Appeal filed with the Child and Family Services Review Board (CFSRB) under section 311.7 of the Education Act, RSO 1990, c.E2, as amended (the “Act”). The issue before the CFSRB is whether the appeal is out of time and, if so, whether there are reasonable grounds for extending the time to appeal.

the law

2Under section 311.3 of the Act, if a principal recommends to a school board that a student be expelled, the school board must hold a hearing and decide whether to expel the student and if the student is expelled, whether the student should be expelled from his or her school only or from all schools of the school board.

3If a school board decides to expel a student, it must provide notice of the expulsion under section 311.6 of the Act. The notice of expulsion must include the following information:

a. The reason for the expulsion.

b. A statement indicating whether the student is expelled from his or her school only or from all schools of the school board.

c. Information about the school or program for expelled students to which the student is assigned.

d. Information about the right to appeal under section 311.7, including the steps that must be taken to appeal.

4Under section 5(1) of Regulation 472/07 (the “Regulation”), written notice of an expulsion appeal must be provided within 30 days after the date in which the appellant is considered to have received notice of the expulsion in accordance with the requirements of section 311.6. Where notice of the expulsion is provided by email, it is considered received on the first school day after the date on which it was sent under section 300(3) of the Act.

5Under section 5(2) of the Regulation, the designated tribunal hearing the appeal, may extend the period of time for giving written notice of the appeal if it is satisfied that there are reasonable grounds for the extension.

6The CFSRB is the designated tribunal that hears expulsion appeals. An appeal before the CFSRB proceeds as a new or "de novo" hearing. The CFSRB hears direct evidence about the incident that led to the expulsion. It also considers mitigating and other factors set out in sections 2 and 3 of the Regulation when deciding whether to expel a student and, if the student is expelled, the kind of expulsion that should be imposed.

background

7On November 6, 2017, the Appellant was advised by the principal of his son’s school that he was conducting an investigation into whether his son had shown inappropriate photographs to a fellow student.

8By letter dated November 9, 2017, the Appellant advised the principal that his son would not be returning to the school or the School Board.

9By letter dated November 17, 2017, the Appellant was advised that the principal was recommending that his son be expelled.

10On November 28, 2017, counsel for the School Board provided disclosure of its documents for the expulsion hearing to the Appellant’s legal counsel by email. By return email of the same date, the Appellant’s counsel confirmed receipt of the documentation and advised the School Board’s counsel that she was in the process of preparing a Statement of Claim.

11The expulsion hearing for the Appellant’s son took place on December 1, 2017 before the School Board. The Appellant did not attend the expulsion hearing.

12The School Board released a written expulsion decision dated December 5, 2017 (the “Expulsion Decision”), which stated the following:

THE TRIBUNAL does hereby impose an expulsion from all schools of the Board for the following reasons:

[Student] shared, with other students of the school, images that had sexually explicit content and captions of a student. [Student] provided the identity of said student to others.

[Student’s] continued presence in the school creates an unacceptable risk to the health and safety of others.

Once [Student] has successfully completed an alternative program for expelled students, he may be re-admitted to a regular day school secondary program of the Board.

13By email on December 5, 2017, counsel for the School Board advised counsel for the Appellant that the Appellant’s son had received a full expulsion (from all schools). Counsel for the School Board asked the Appellant’s counsel whether she should communicate directly with the Appellant or the student. By return email on the same date, counsel for the Appellant asked the School Board’s counsel to provide reasons for the Expulsion Decision.

14By email on December 7, 2017, counsel for the School Board sent Appellant’s counsel the Expulsion Decision, together with a cover letter which stated the following:

Enclosed, please find the decision of the Discipline Committee, dated December 5, 2017.

Should you wish to appeal this decision, you may contact the Child and Family Services Review Board at 1-416-327-4673 or 1-888-728-8823 within 30 days of receipt of this notice.

15On February 15 and 16, 2018, counsel for the Appellant requested reasons for the Expulsion Decision by email.

16By email on February 27, 2018, counsel for the School Board re-sent the Expulsion Decision, together with the cover letter, to the Appellant’s counsel.

17By email on February 27, 2018, counsel for the Appellant took the position that she still did not have reasons for the Expulsion Decision because the reasons provided were completely deficient so as to render them of no value.

issue

18The Appellant seeks an extension of time to file the Appeal on the following bases:

a. the School Board failed to provide reasons for the Expulsion Decision;

b. the Appeal has merit; and

c. the School Board has engaged in misconduct.

analysis

19Section 5(2) of the Regulation permits the CFSRB to extend the time to appeal if there are reasonable grounds for doing so. The Regulation does not identify the factors to be considered when determining whether reasonable grounds exist.

20In the civil context, the “overarching principle on a motion to extend the time to file a notice of appeal is whether the ‘justice of the case’ requires that an extension of time be given”. The courts take into account all relevant factors, including:

a. whether the moving party formed a bona fide intention to appeal within the relevant time period;

b. the length of, and explanation for, the delay in filing;

c. any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

d. the merits of the proposed appeal.

See Laski v. Laski, 2016 ONCA 337, at paragraph 26

Intention to Appeal

21The Act sets out the specific requirements for the expulsion notice. The notice of expulsion must set out the reason for the expulsion, the type of expulsion imposed, information about the school or program to which the student is assigned, and the right to appeal to the CFSRB. In E.P. v. Peel District School Board, 2009 CFSRB 55 at paragraph 28, the CFSRB held the expulsion notice must include the 30-day time period for filing the appeal.

22The Student was expelled by decision dated December 5, 2017. Written notice of the expulsion was provided to the Appellant’s counsel on December 7, 2017. It was deemed to have been received the following day under section 300(3) of the Act. The Expulsion Decision, together with its covering letter, complied with the requirements of the Act. The Appellant was advised of the reason for his son’s expulsion, his right to appeal to the CFSRB and the 30 day time period to appeal. The Appellant’s son was not assigned to an alternative program presumably because he had withdrawn from the School Board.

23The 30 day time limit expired on January 8, 2018. There is nothing in the materials that indicates the appellant formed an intention to appeal by this date.

Length of, and explanation, for the delay

24The Appellant delayed filing his Appeal for two and one-half months. The only explanation for the delay is the assertion that the School Board’s reasons were deficient. The Appellant submits that without proper reasons, he could not properly appeal the Expulsion Decision.

25It is difficult to understand this explanation for the delay. The Appeal before the CFSRB is a new hearing. The CFSRB decides whether the Student committed the infraction which led to his expulsion and, based on its assessment of mitigating and other factors, whether the Student should be expelled. The CSFRB does not sit in review of the School Board’s actions, including its disciplinary proceeding. As such, the adequacy of the School Board’s reasons was irrelevant to the Appeal before the CFSRB. In other words, there was no reason to delay filing the Appeal because of the reasons of the School Board.

Prejudice

26The issue of prejudice must be determined having regard to the statutory timelines for expulsions under the Act.

27The Act and the Regulation require that school board expulsion decisions and appeals before the CFSRB be decided expeditiously. A school board cannot expel a student if more than 20 school days have expired since the student was suspended, unless the parties agree. An appeal of an expulsion decision must be made within 30 days of a school board’s expulsion decision. Once an appeal has been filed, the CFSRB must hold a hearing within 30 days and its decision on the appeal must be released in 10 days.

28The School Board was required to proceed expeditiously with its expulsion hearing in order to ensure certainty and stability in the school following the incident which led to the Student’s expulsion. The delay in filing the Appeal undermines the School Board’s efforts in this regard. The delay also impacts other students who would be required to testify about the incident that led to the expulsion. The CFSRB requires direct evidence about the incident. This often requires other students to testify in the hearing before it. While the need to proceed expeditiously is significant for the expelled student, it is also important to other students who may be witnesses at the hearing before the CFSRB.

29The School Board is prejudiced as a result of the Appellant’s delay in filing the Appeal.

Merits of the Appeal

30Because the Appeal is a hearing de novo, I am prepared to assume that it has merit.

Justice of the Case

31Justice of this case does not warrant an extension of time to file the Appeal. Expulsion Appeals must proceed expeditiously, not only for the Student who was expelled, but for the school community and other students who will likely be part of the hearing before the CFSRB. A two and one-half month delay in the context of legislation that requires the CFSRB to complete the hearing and render a decision in 40 days is significant.

32There is no explanation for the delay. While the Appellant disagreed with the sufficiency of the School Board’s reasons, those reasons were completely irrelevant to the Appeal.

33For these reasons, I find the Appellant has not provided reasonable grounds to extend the time to appeal. The Appeal is out of time and will not be heard by the CFSRB.

order

34The Appeal is dismissed.

confidentiality order

35Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any CFSRB 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 CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.