L.K. v. Upper Grand District School Board, 2019 CFSRB 2

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

L.K. Appellant

-and-

Upper Grand District School Board Respondent

DECISION

Adjudicator: Andrea Himel Date: February 4, 2019 Citation: 2019 CFSRB 2 Indexed as: L.K. v Upper Grand District Board (EA 311.7)

APPEARANCES

L.K, Appellant

David Baker, Counsel, and Lisa Lepine, Student at Law

Upper Grand District School Board, Respondent

Eric DelJunco and Sarah Molyneaux, Counsel

Introduction

1This is an appeal to the Child and Family Services Review Board (the "CFSRB"), pursuant to section 311.7 of the Education Act, RSO 1990, c. E2, as amended, (the "Act") of the November 20, 2018 expulsion of GK (the "Pupil") from [The School] which is a French immersion public school operated by the Respondent (the "School Board"). The Appellant is the Pupil's mother.

2On November 20, 2018, the Pupil was expelled from [The School] for a physical assault on an education assistant ("EA"), which took place on school property on October 22, 2018. JB ("PrimaryEA1") sought medical treatment for bodily harm, which included bruises, contusions and a concussion. She has since been diagnosed with post-traumatic stress disorder ("PTSD"). PrimaryEA1 was on medical leave from October 22 to December 17, 2018, when she returned to [The School] on a part-time basis for an accommodated role outside of the classroom. The School Board has assigned the Pupil to his home school, being [ ].

3It is the School Board's position that the Pupil's needs cannot be met at [The School] at this time and that staff and students cannot be kept safe at this school. The School Board asserts that the Pupil's continuing presence in the school creates an unacceptable risk to the physical or mental well-being of others. The Appellant seeks an order quashing the expulsion and expunging the record.

4The CFSRB heard the appeal on January 8 and 9, 2019. The School Board submitted affidavit evidence and the following witnesses were cross-examined by the Appellant's counsel: LN ("Principal"); PrimaryEA1; ST (the School Board's BCBA expert "BCBA1"); ST (the Special education and resource teacher "Sert Teacher"); and, KS ("Home Instruction Teacher). BCBA Expert1 also provided oral evidence-in-chief in response to the expert's report produced by TL, the Appellant's BCBA expert ("BCBA2").

5The Appellant submitted her own affidavit and an expert's report prepared by BCBA2. Both witnesses were cross-examined by the School Board's counsel. The Pupil did not participate in the hearing.

6At the commencement of the hearing the parties agreed that the Pupil committed the infraction described in paragraph 2 above. Therefore, the issue before the CFSRB was whether, after considering the relevant mitigating and other factors the Pupil should be expelled from [The School], or whether the expulsion should be quashed and the record expunged.

7On January 17, 2019, the CFSRB released its Decision. The CFSRB confirmed the expulsion.

8These are the CFSRB's reasons for that decision. There is no winner in this case. The parties' high-stakes and blame-game approach to this dispute makes a difficult and complicated situation far worse to the detriment of the Pupil, a grade 2 student with complex needs who has been out of school since October 22, 2018.

PRELIMINARY ISSUES

9In advance of the first day of hearing the CFSRB held a number of pre-hearing teleconferences to address preliminary issues raised by the parties. During the timeframe from the first pre-hearing teleconference (December 13, 2018) and through the course of the hearing (January 8 and 9, 2019), the parties sought directions on various issues. The CFSRB heard submissions from the parties on a variety of issues, and rulings were made prior to and during the hearing.

10The CRSRB's rulings are below.

1. Request for Consolidation of the CFSRB Expulsion and the Human Rights Tribunal of Ontario (HRTO) Proceedings

11On December 13 and 14, 2018, the CFSRB conducted a pre-hearing teleconference, and heard submissions by the parties who jointly requested that the CFSRB and HRTO matters be consolidated. The Appellant's argument was that both proceedings concern substantially the same facts and issues: whether the School Board accommodated the Pupil such that he had meaningful access to education. The request was denied and brief oral reasons were provided with more detailed reasons to follow. The parties requested reconsideration of this decision, however, the School Board later withdrew its request. In any event, the CFSRB has no reconsideration mechanism, which is one of the many ways that this tribunal is different from the HRTO.

12The CFSRB has a statutory timeline for the commencement of an expulsion appeal. The Act and Ontario Regulation ("O.Reg.") 472/07 impose strict timelines for all steps related to an expulsion, commencing with the School Board's expulsion hearing: within 20 school days of the date of the suspension [s.311.3(8)], and the filing of an appeal by an appellant which must be within 30 days of notice of the expulsion [s. 5(1) O.Reg. 472/07]. The expulsion hearing must commence within 30 days after receiving a written notice of appeal, unless the CFSRB extends this period of time: s. 6(1) and (2) O.Reg. 472/07.

13The time limits set out in the Act, and the provisions that require the School Board to conduct expulsing hearings within 20 days of the suspension, are intended to ensure that school expulsions and appeals are dealt with expeditiously. The Pupil and his family have the right to know whether the expulsion is upheld or rescinded so that appropriate educational plans can be implemented, and to alleviate the stress and lack of certainty that arises from an outstanding expulsion. The consolidation of the two matters would have required a materially longer hearing and, as such, considerable delay. The HRTO matter is not governed by these timelines.

14The issues before the CFSRB and the HRTO are distinct. The Divisional Court recently addressed the differences between the tribunals in Windsor-Essex Catholic District School Board v. Human Rights Tribunal of Ontario, 2018 ONSC 1955, at paras. 7-8.

In his application before the Tribunal, D.B. alleges breaches of the Code surrounding the school board's actions between April 4, 2015 and September 2015. He does not limit his application to the decision to expel. D.B. alleges that the school board failed to accommodate him (both procedurally and substantively); failed in its duty to inquire and subjected him to direct and adverse effect of discrimination.

The Review Board's expulsion decision did not deal with, or make findings on these issues. It was a de novo hearing that was focused on the issue it had to decide – namely whether D.B. should be expelled and if so, from his home school or all schools. It was not focused on an examination of the school board's conduct and whether it met the requirements of the Code.

15The only issue before the CFSRB is addressed by way of answers to the following yes or no questions:

Is the Pupil's expulsion from [The School] upheld and the Pupil assigned to another school?

Is the expulsion quashed and the record expunged from the Ontario Student Record ("OSR")?

16The HRTO matter focuses on whether the School Board failed to accommodate the Pupil's disability to the point of undue hardship. The evidence and timeframe are not limited to that which is relevant to the expulsion appeal, and may extend both in time and breadth of areas of inquiry.

17At the commencement of the hearing I ordered that the relevant timeframe for the expulsion appeal was July 2018 to present. Based on the parties' submissions and the evidence that they wished to submit at the hearing, it is evident that HRTO matter is intended to address alleged discrimination from junior kindergarten onwards.

18The parties for whom relief is being sought is different. The relief sought and granted in a CFSRB expulsion appeal directly affects one person – the Pupil. The HRTO has the jurisdiction to consider and grant relief respecting individuals other than the Pupil. The Appellant is seeking relief from the HRTO on behalf of the Pupil and AK (the "Sister").

19As described above, the mandate and jurisdiction of the CFSRB in an expulsion appeal and the HRTO are different. The CFSRB is mandated to uphold or quash appeals and expunge the OSR record. The HRTO's mandate is to address discrimination. The CFSRB does not have the jurisdiction to adjudicate and provide remedies in relation to discrimination allegations.

20The Child and Youth Division ("CYD") of Tribunals Ontario addresses cases across various tribunals, including the CFSRB and HRTO. The CYD provides expertise and expedition in cases involving children and youth. However, the CYD does not ignore the differences between the tribunals or extend jurisdiction to any tribunal beyond that provided in the applicable legislation. CFSRB and HRTO cases cannot be consolidated on the basis that they each fall within the mandate of the CYD.

21Even if I had been persuaded by the merits of consolidation, the parties would have had to provide evidence that consolidation is permitted by the Consolidated Hearings Act. In the absence of express authority matters delegated to specific tribunals cannot be consolidated.

II. The School Board's Adjournment Requests For Lack of Urgency

22During the December pre-hearing teleconferences I advised the parties that the hearing must commence by January 10, 2019, since the Notice of Appeal was filed with the CFSRB on December 10, 2018. Counsel for the Appellant advised that for the period of time from January 7 to mid-February, his only available dates were January 8 and 9, 2019, due to previously scheduled hearings and other matters.

23On December 14, 2018, the parties agreed that they were available for the matter to proceed on January 8 and 9, 2019. I scheduled the hearing and set deadlines for the delivery of disclosure and affidavits. The School Board subsequently made several requests to extend the time to file evidence and/or for an adjournment. These requests were addressed during the pre-hearing teleconferences and the hearing itself.

24The School Board made its first request to extend the period of time for the commencement the hearing, pursuant to s.6(2), during the December 13/14 Pre-hearing. Counsel argued that the appeal was not urgent, and was effectively moot. He submitted that the Appellant did not intend to allow the Pupil to re-enrol at [The School] absent further accommodation by the School Board, which was an issue that would be addressed by the HRTO. The School Board reiterated the lack of urgency given that the HRTO matter was set to proceed on January 18, 2019. The School Board objected to the January 2, 2019 deadline for the delivery of all affidavits on the basis of hardship given that the School Board's winter break was scheduled to take place from December 20, 2019 to January 7, 2019, inclusive. Counsel argued that the deadlines could have an impact on the availability of certain witnesses due to the collective agreements and Employment Standards Act.

25The Appellant's counsel objected to any delay arguing that the Pupil would return to [The School] once the appropriate accommodations were put in place, which the School Board may agree to do following the expulsion decision. The Appellant's counsel also submitted that the HRTO matter had been delayed as the School Board had persuaded the HRTO to provide an extension of time to file materials on the premise that it needed to prepare for and conduct this hearing.

26I declined to grant the adjournment on the grounds of lack of urgency as the Appellant had the right to an expeditious hearing and decision in this matter.

27Moreover, if the expulsion had been quashed the Pupil would have had the right to return to his school and to have the record expunged after the hearing, even if the Appellant was unprepared to confirm prior to the hearing that he would be re-enrolled.

28I accept the Appellant's submission, made in the December pre-hearing teleconferences and repeated in her written submissions that, although the CFSRB cannot order any change in accommodation were it to quash the expulsion, this does not mean that the accommodation dialogue between the parties ceases. The Respondent is still required to accommodate the Pupil's needs. The existence of accommodation options (as per the Appellant's testimony), meant that the Pupil could potentially return to [The School] if the expulsion was quashed.

29Further, I determined that the matter should proceed in the interests of fairness, given that the School Board did not dispute that it had obtained an extension of time in the HRTO matter on the basis that this hearing was proceeding. It would be unjust to permit an adjournment of the CFSRB matter, since the HRTO matter was delayed on the assumption that the CFSRB matter was going ahead as scheduled.

30While I recognize that the timing of the hearing created challenges for the School Board (and for the Appellant), I note that the School Board was able to serve and file eight of its twelve proposed affidavits by January 2, 2019 (with the remainder provided on January 4, 2019).

III. The Witness List

31The Pre-hearing report issued on December 18, 2018, contained a provision that a further Case Management Conference Call would take place on January 4, 2019 to address the relevance and need for each of the parties' intended witnesses, time limits for cross-examinations and closing arguments, and any other matter that may arise. The Pre-hearing report also clarified that I would determine at the hearing whether any particular witness would be heard based upon relevance and the other usual considerations. The admissibility of evidence at the hearing is always dependant on considerations such as relevance and undue repetition.

32These provisions were intended to ensure that the hearing would meet the needs of proportionality, fairness, justice and efficiency. As set out above, the matter was scheduled for a two-day hearing, such that it was imperative to constrain the evidence to avoid irrelevant and/or unnecessary testimony.

33At the pre-hearing on January 4, 2019, the Appellant confirmed that she had filed an affidavit and that she intended to file an expert's report in order to proffer TL ("BCBA2") as an expert witness. The School Board advised that they had twelve witnesses with relevant and necessary evidence.

34The Appellant took the position that only the Principal (whose evidence includes the hearsay evidence of other witnesses) and BCBA1 were necessary and relevant witnesses for the School Board. After a discussion with both parties about the number of proposed witnesses the School Board agreed to provide a prioritized list of witnesses by January 5, 2019.

35On review of the affidavits of the twelve proposed witnesses and the School Board's letter dated January 5, 2019, which provided a prioritized list of witnesses and a brief précis of why their evidence was relevant and necessary to the fair adjudication of this appeal, I directed that the following witnesses participate in the hearing: the Principal; the PrimaryEA1 (who sustained the injuries that lead to the expulsion); BCBA1, the BCBA who worked with the pupil and who the School Board proffered as their BCBA expert; The Sert Teacher, the Pupil's special education teacher; and, the Home Instruction Teacher who worked with the Pupil in November and December 2018.

36I refused to permit the School Board to call the following witnesses: The Vice Principal; the second primary education assistant; a third education assistant; the school's administrative assistant; the School Board's Superintendent of Program; the office coordinator; and the School Board's Superintendent of Education who is responsible for [The School].

37I did not accept the School Board's position that all of the evidence is relevant and necessary to have complete and accurate evidence relating to all the issues in the appeal. While it may be true that each of the twelve witnesses could shed light from a different perspective on various factual issues, and that each perspective is a piece of a larger whole and fit together, the extensive evidence provided by the Principal, BCBA1, PrimaryEA1, the Sert Teacher and the Home Instruction teacher provides sufficient evidence to address the expulsion as well as the mitigating and other factors. If the School Board had been permitted to rely on all twelve of its witnesses the hearing could have extended unnecessarily for days or weeks.

38As set out in the School Board's letter dated January 4, 2019, the evidence provided by the witnesses listed below would be as follows:

• The Principal – the suspension, the expulsion, unacceptable on-going risk and further harm to staff and students; evidence that she had been assaulted by the Pupil and how this affected her personally; evidence of verbal aggression by the Appellant in the Pupil's presence, and how this affected her, her staff and the school environment; Harm done to the school environment by the Pupil and the unacceptable risk he poses to the school community; the school's efforts to accommodate the Pupil's needs; and, efforts made to keep the Pupil as school and keep others safe;
• BCBA1 – the Board's efforts to accommodate the Pupil's needs and why these efforts did not succeed despite the best efforts of all Board staff; oral and written evidence in response to BCBA2's expert report;
• PrimaryEA1 – her efforts to work with the Pupil and support him day to day; evidence regarding being physically and verbally assaulted innumerable times over a period of weeks culminating in the assaults on October 22; seeing others being similarly assaulted; the severe harm she suffered to her physical and emotional health; harm to the school environment from the Pupil's verbal and physical aggression and the unacceptable risk he poses to the school community;
• The Home Instruction teacher – the Pupil's dysregulation at home; and,
• The Sert teacher – an overview at the school level of the efforts made to accommodate the Pupil's needs and why these efforts did not succeed in keeping the Pupil and others safe; harm to the school environment from the Pupil's verbal and physical aggression and the unacceptable risk the Pupil poses to the school community.

39The Principal submitted extensive evidence including a 111 paragraph affidavit along with thousands of pages of exhibits, which included the following:

a. The Principal's records – notes, emails, reports and other records; the Appellant's Facebook posts from 2016 to present; b. Correspondence between the School Board and family counsel, November 2018 to present; c. Complaints from other families about the Pupil's behaviours; Violent Incident Reports; d. The November 16, 2018 Expulsion Report and Appendices A – J; e. The November 20, 2018 Expulsion Decision; and, f. The Records of DD, the Pupil's grade 2 teacher who was on medical leave and unable to participate in the hearing.

40These witnesses had considerable contact with the Pupil in a variety of capacities, they have distinct roles with the School Board and they were able to provide a breadth of information that was relevant and necessary. The witnesses I declined to accept would have provided more examples of the same types of evidence that was provided by the five witnesses. For that reason I also declined to accept the business records that were attached as exhibits to the declined witnesses' affidavits.

IV. The Appellant's Expert Report and Motion to Produce

41Prior to the filing of the present appeal, the parties engaged in communications about the possibility of retaining an assessor. On November 19, 2018, the School Board requested further medical information from the Appellant and stated that it was willing to discuss an appropriate medical assessment at its expense. On November 30, 2018, the Appellant requested that BCBA2 be retained to conduct an assessment at the School Board's expense. While written communications about an assessment continued, the parties never agreed to jointly retain BCBA2, or any BCBA, psychologist or psychiatrist.

42During the pre-hearings that took place on December 13 and 14, 2018, I addressed the timing of any expert opinions and directed that they be filed by January 2, 2019.

43On December 19, 2018, the Appellant filed a motion requesting an order that the School Board produce the names, contact information and availability of eight of its personnel. The Appellant requested, in the alternative, that she be permitted to file the proposed expert report "after the [Respondent] has produced the requested information or at the hearing on the merits, whichever comes first."

44In Pre-hearing reports issued by my colleague on December 19 and 24, 2018, the Appellant's reasons for the relief sought were summarized, as follows. The Appellant stated that she needed this information so that BCBA2, who was conducting an assessment of the Pupil's needs and services to prepare an expert report, could interview eight of the School Board's personnel who plan, provide and oversee the Pupil's accommodations.

45The School Board was directed to file responding material by no later than December 24, 2018. Its position was summarized in the December 24, 2018 pre-hearing report, as follows. The Appellant has the contact information for most of the individuals listed and had not made attempts to contact them. The school was closed and would remain closed until January 7, 2019. The requested order would be inappropriate for several reasons, including: (1) The motion is essentially a request that the Respondent assist in preparing an expert report to be used in the Application and other litigation between the parties; and (2) The motion attempts to circumvent or speed up the timelines for the production and disclosure set out in December 18, 2018 Pre-hearing report.

46On December 24, 2018, Appellant filed further submissions requesting that her expert witness be permitted to cross-examine the eight individuals in the hearing.

47My colleague directed that a decision would be made before or during the pre-hearing teleconference scheduled for January 4, 2019.

48During the January 4, 2018 Pre-hearing the parties addressed these issues and I held that the Appellant's request for an extension of time to file an expert's report is allowed, with the report to be filed on Monday January 7, 2019 by 4:00 p.m. I denied the request to compel the cooperation of the School Board's employees or for the provision of contact information for the reasons submitted by the School Board.

49I also directed that I would receive brief oral submissions at the hearing from both parties in order to determine: (1) whether the author of the report is qualified as an expert; and, if qualified as expert (2) the areas of expertise; (3) whether the report is relevant and necessary; and, if the report is relevant and necessary, the scope of the opinion evidence.

50The School Board advised on January 7, 2019, that it would be seeking an adjournment if I ruled that BCBA2's evidence would be heard in order to have a reasonable opportunity to review the report and instruct counsel how to respond. In the alternative, if the adjournment request was denied, the School Board would be seeking the opportunity to have BCBA1 provide oral testimony in response to BCBA2's report. On January 8, 2019, I advised that the issue as to whether BCBA2 would be permitted to provide expert testimony would be addressed when she attended at the hearing on January 9, 2019.

51I allowed the School Board's request to have the opportunity to elicit oral evidence in chief from BCBA1. In response to my direction the School Board again asked for an adjournment and again argued there is no urgency in this matter. Counsel also argued that it would be unfair to deny BCBA1 more time to prepare her testimony in response to the report.

52The Appellant objected to the adjournment request for the reasons set out previously, and I denied the request. Notwithstanding the tight timelines, when BCBA1 testified later that day she provided a document she had prepared entitled, BCBA1 Response to BCBA2 report, which was marked as an exhibit.

53On January 9, 2019, BCBA2 was cross-examined on her experience and expertise. She is a registered speech-language pathologist and has a Masters in Speech-Language Pathology and a Masters in Education. BCBA2 has been a BCBA since 2010, and has been accepted as an expert in BCBA in a HRTO hearing. BCBA2 is clinical director of one of the largest interdisciplinary private centers in Canada, she is an adjunct professor and an author. BCBA2 has served on a number of government task forces, professional organizations and non-profit organizations.

54The School Board raised concerns about BCBA2's lack of impartiality and bias due to her involvement with the Ontario Autism Association including statements on social media that teachers and school principals can be reported for professional and ethical violations. BCBA2 also posted that reporting teachers and school principals is a mechanism that is not being used enough to drive changes that are needed in the education system. The School Board raised concerns about BCBA2's role as an advocate within the autism community and her position as clinical director of MH given that the company recently nominated, and BCBA2 presented, an award to another parent of an autistic child for her tireless work to further Applied Behaviour Analysis ("ABA") knowledge in the local school systems and to have quality ABA services available within the education system.

55The School Board argued that BCBA2 should not be accepted as expert, and that her report should be inadmissible. The School Board directed me to the test set out White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 at paras. 49 and 54 ("White Burgess"). For oral reasons given I accepted BCBA2 as an expert on BCBA having found that, "the potential helpfulness of the evidence is not outweighed by the risks of the dangers materializing that are associated with expert evidence" (White Burgess, at para. 54). I also articulated that I would accept the report on the basis of fairness. The School Board produced five professional witnesses, including a participant expert (BCBA1), and the Appellant, who is a lay person, should be afforded the opportunity to provide expert testimony to support her case.

56I ruled that the School Board's concerns were more properly addressed by arguments about weight rather than admissibility. Upon review of the evidence and the expert report, I find that it is useful to provide a generalized opinion about students who display highly dysregulated and aggressive behaviour with respect to their ability to control their actions, their ability to understand their actions and accommodations within the classroom. I also find that the expert report serves a useful purpose to delineate where the Appellant and the School Board agree and disagree on these issues, and a framework for the School Board to explain why they believe that the BCBA2's proposed accommodations are not appropriate. As such I found that the expert report is relevant and necessary.

57However, I attribute little weight to BCBA2's opinions respecting the Pupil, in terms of his ability to control or understand the foreseeable consequences of his behaviour, whether he poses an unacceptable risk to the safety of any person, or whether the accommodations that the School Board could and/or should provide would mitigate this risk. BCBA2's opinions with respect the Pupil are not reliable or credible and they exhibit bias and a lack of impartiality. That conclusion is based on the concerns articulated by the School Board above, and the following considerations:

• BCBA2 never observed the Pupil at school. Her information respecting the Pupil's behaviour at school was limited to the selected portions of the School Board's affidavits (and the entirety of BCBA1's affidavit) that the Appellant determined was relevant. BCBA2 did not question nor did she know the breadth of evidence that was provided or was missing;
• BCBA2's interactions with the Pupil were limited to: (1) observing two video-taped sessions with the Pupil's in-home BCBA ("Private BCBA") from December 21 and 24, 2018; and, (2) a thirty minute meeting with the Pupil and his father on January 7, 2019, the day that the expert report was issued;
• BCBA2 declined to interview the parents as she believes that the Pupil's dysregulated behaviour at home or in the community (including being excluded from the YMCA for hitting other children at summer camp in 2018) is irrelevant;
• BCBA2 refused to agree that the Appellant's heated verbal interactions with various School Board staff (at times in the Pupil's presence) was relevant in any way;
• BCBA2 opined that the Pupil does not need a psychiatric assessment, which she concluded without requesting any medical history. She concluded that the Pupil was not taking any medication from the absence of any such details in the Individual Education Plan ("IEP") and the Pupil's August 2017 Psychological Assessment and Addendum. BCBA2 admitted that she had not observed the Pupil or assessed him, and she was not sure if he suffered from any other mental disorders.
• BCBA2 testified that she does not share the opinion that French is an aggravating factor. She testified that during their brief interview the Pupil identified some subjects, but not French, as subjects he did not like. Since the Pupil struggles in English as well as in French, she concluded that his behaviour was not attributable to French language instruction. BCBA2 gave this opinion notwithstanding her acknowledgement that: (a) the Pupil is well behind his peers in language assessment; (2) his level of English is quite weak; (3) the Psychological Assessment is clear that the Pupil is exhibiting deficient language skills which affects phonetics, reading and spelling; (4) the Pupil advised her that the following activities are hard for him: typing, reading, spelling and printing lots of information; (5) in her opinion the Pupil needs a more in-depth educational assessment (for speech and language) and then should return to the psychologist for an assessment to look at learning disabilities; and, (6) BCBA2 had reviewed the evidence of several School Board staff who reported that the Pupil "hates French", and that they believe French is a trigger.
• BCBA2 testified that she could speculate about the possible causes of dysregulation, however, she could not say what caused the behaviour dysregulation. Nor could BCBA2 opine whether it was the School Board's failure to accommodate that caused the dysregulation.

V. Scope of the Hearing

58At the commencement of the hearing I heard submissions from the parties on a variety of matter and I made rulings respecting the scope of the hearing.

59The parties agreed with that the Pupil's IEP identifies his exceptionality as "Austism: Communication", and they agreed with the general sequence of events:

• JK/SK: There were concerns about the Pupil's behaviour in JK/SK, and the parents provided the school board with a Psychological Assessment dated August 2017. The Pupil was diagnosed with Autism Spectrum Disorder ("ASD").
• Grade 1: As described in the Principal's Expulsion report, the Pupil displayed serious behavioural issues but staff were able to manage the risk and keep the Pupil, other students and themselves safe with support.
• Summer 2018: The Appellant observed more signs of aggression when the Pupil was frustrated including hitting, which she reported to the Principal in August.
• Grade 2: The first week of school went well. Commencing the second week of school, the Pupil experienced increased dysregulation and behavioural issues which were ongoing, and of increasing severity, until his suspension on October 22, 2018.

60Since the Pupil successfully completed grade 1, and the School Board was able to manage his behavioural issues, I directed that the timeframe for evidence in this hearing would be from July 2018 to present. I also directed that the accommodations that were made or not made by the School Board in grade 2, could be compared to those that were made or not made in grade 1. This evidence could be used to support or refute arguments relating to accommodation to the extent that they were relevant to the expulsion and the mitigating or other factors.

61I ruled that the "accommodation evidence" produced by the parties relevant only with respect to two areas:

• Mitigation Factors - O. Reg. 472/07 s. 2(3): whether the Pupil's continuing presence in the school does not create an unacceptable risk to the safety of any person given the accommodations that the School Board could and/or should make; and,
• Other Factors - O. Reg. 472/07 s. 3(6) (ii): whether the accommodations that were made or not made by the School Board led to the behaviour that led to the incident.

62I also addressed an issue raised by the Appellant, being that evidence exclusively in regard to the Sister should not form part of the evidence or the hearing. The Appellant took the position that such evidence is neither probative nor relevant to the expulsion appeal and does provide any insight into his behaviour. I directed that I would not consider any evidence relating to the Sister for the reasons articulated by the Appellant.

63The final issue that I addressed at the preliminary stage was the relevance of the Appellant's interactions with School Board staff. I ruled that this hearing was not an inquiry into the Appellant's conduct and, as such, her interactions were only relevant as follows:

• On a go-forward basis, whether the Appellant's interactions with the School Board and her refusal to cooperate with the School Board's attempts to accommodate impede their ability to accommodate the Pupil resulting in an unacceptable risk to the safety of a person; and,
• Whether the Appellant's conduct from July 2018 onwards prevented the School Board from being able to appropriately accommodate the Pupil.

64After the preliminary issues were addressed the matter proceeded as planned. The Appellant requested that closing submissions be provided in writing, and the School Board consented to same. On January 17, 2019, after I considered the parties' affidavits and exhibits, the oral evidence, the closing submissions and the requirements set out in the Act and O.Reg. 472/07, the CFSRB issued an Order confirming the Pupil's expulsion from [The School].

DECISION ON THE MERITS

The Law

65Section 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 or cannabis 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 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.

66Section 2 of O.Reg. 472/07 states that the following mitigating factors must be taken into account:

• The pupil does not have the ability to control his or her behaviour.
• The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour.
• The pupil's continuing presence in the school does not create an unacceptable risk to the safety of any person.

67Section 3 of O.Reg. 472/07reads as follows:

For the purposes of subsections 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:

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.

The Facts

68[The School] is a French Immersion school that has approximately 620 students including more than 95 who are identified with special needs and approximately 40 who have formal diagnoses such as learning disability-communication, ASD, Attention Deficit Hyperactivity Disorder ("ADHD"), and Down Syndrome. The Principal believes that there are 7 students with an ASD diagnosis including the Pupil and the Sister.

69[The School] has approximately 50 staff, including a SERT teacher, and 3.5 full-time EAs (to meet the needs of 12 students). The Principal works regularly with one of the three School Board BCBAs and the School Board's ABA facilitators.

70The Pupil is 7 years old and was in grade 2 at the time of the expulsion. A Special Education Services Identification, Placement and Review Committee ("IPRC") meeting was held on November 3, 2017. The Pupil was identified as: Communication-Autism. He was placed in a regular class with resource assistance and the reason for placement was that the Pupil would benefit from accommodations related to his identification of ASD. On October 30, 2018, the Appellant requested a further IPRC, but that has not taken place to date.

71The IPRC identified the Pupil's strengths, which include: communicating needs, thoughts and ideas; processing speed (when external stimuli is limited) and a desire to help others. The Pupil's identified needs are: Self-regulation and Sensory Processing; Safety of Self; Conflict Resolution and Aggression Management; Social Skills; Expressive and Receptive Language; Phonological Awareness and Processing; Fine Motor Skills and Dexterity; and Transitions.

72The Pupil has had several IEPs commencing with December 9, 2016 (senior kindergarten), and including revisions that were made on January 13, 2017, October 15, 2018 and October 25, 2018.

73The School Board developed and implemented a Behavioural-Mental Health Plan and a Safety Plan in March 2016, which were revised in September 2017. Changes were made to the Safety Plan in September and October 2018, and the Behaviour Management Plan in October 2018.

74BCBA1 began working with the Pupil in October 2017. Her six recommendations including a reward system were implemented and effective in supporting the Pupil in grade 1.

75On August 28, 2018, the Principal met with the Appellant, the Pupil and the Sister to discuss their needs. The Plan for the Pupil included the use of a visual schedule, a visual timer and a token board, as well as EA support (shared with a student in the portable next door).

76The School Board intended to assign two primary EA's (morning and afternoon) to promote the Pupil's independence, to decrease possessiveness and frustration with one Primary EA, to prevent EA burnout and to ensure consistency if one of the EAs was unavailable. The Appellant voiced concerns about the move away from one primary EA, which had been effective in grade 1.

77From September 2018 and until the suspension there were two Primary EAs, however, approximately 7 additional EAs were brought in at various times (as substitute EAs due to illnesses, injuries and a refusal to work with the Pupil).

78The Pupil had a successful first week of school.

79At the Appellant's request, on September 10, 2018 the Principal met with the Appellant, the Sert teacher and the Pupil's Private BCBA, who provides the Pupil with three hours of ABA treatment/tutoring per week. The parties discussed the implementation of a "self and match" reward system to replace the "token" system that was in place in grade 1. The Sert teacher testified that she supported this decision, and the Principal's affidavit states that the Private BCBA and the Appellant agreed. The Principal attests that she had some reservations. During the hearing BCBA1 and BCBA2 agreed that the change in program was a mistake because of its complexity, the delayed gratification approach and poor training for the EAs who were to implement the program.

80From the second week of school onwards, the Pupil's behaviour escalated including: (a) Refusing to attend class and refusing to do work; (b) Requiring one-to-one EA or staff support at most times, and two-to-one support at other times; (c) needing to work in the school's office; (d) kicking and throwing things (including sticks, rocks and a chair) at people; (e) yelling obscenities and threatening to kill staff; (e) eloping from the school and towards the forest; (f) blocking students from entering the classroom portable; (g) hitting staff on the head, neck and chest; and (h) punching.

81As described in the Principal's affidavit, on September 25, 2018 the Pupil became extremely dysregulated, which manifested itself in verbal threats to kill students and staff, and violent and aggressive behaviour towards students and staff. The school was forced to evacuate the Pupil's class and lock other classrooms. The Pupil attempted to push a 7 year old girl down the stairs, which was prevented by an EA putting her arms around the student. The Pupil then shoved the EA who stumbled but was able to stay on her feet.

82The Vice-Principal called the Appellant to request that she pick up the Pupil as he was in crisis. She declined to do so unless the Pupil was formally suspended. [The School] issued a formal suspension for the balance of that day.

83On September 27, 2018, the Pupil returned to school and BCBA1 implemented a new ABA Facilitator Support Plan. BCBA1 attended the school on September 21, 2019 to address the Pupil's dysregulation (having "faded out" in March 2018 as the AFSP plan she had created in grade 1 had being effectively implemented by staff).

84The Pupil went on vacation with his family from September 28 to October 9, 2018.

85The School Board revised the Safety Plan and the Behaviour/Management Plan, and the Principal completed an open-ended Functional Assessment questionnaire. The Appellant declined to sign any plan where the solution is to call mom. During the hearing she explained her refusal. The Appellant was previously called too often, it was too difficult to manage other aspects of her life and be on-call at all times and emergency services could attend more quickly and provide better support if the Pupil was in danger. Therefore, she advised the School Board only to call her to attend at the school if the Pupil is suspended, 911 has been called or he is sick.

86Immediately on the Pupil's return on October 9, 2018, the aggressive behaviours and threats described above continued, and were increasingly violent and intimidating. Several parents contacted the Principal about their children's safety and their children's feelings of being fearful of the Pupil.

87At various times from September 10 onwards, the School Board staff held meetings to address the Pupil's behaviour and the Safety Plan. The Appellant attended at the school to observe the Pupil, she communicated with School Board staff and she attended meetings (including immediately before the infraction which led to the suspension on October 22, 2018). At times, the Appellant's voice was raised, and she yelled and/or swore at School Board staff. The Pupil was present during some of these interactions. During her testimony the Appellant acknowledged that she was very upset and frustrated by her concerns respecting the School Board's inability to meet the Pupil's needs, and she stated that she is not proud of these interactions.

88PrimaryEA1 testified that October 22, 2018 was basically 6 hours of continuous chaos and panic caused by the Pupil's extreme dysregulation, necessitating a call for support on an emergency basis at 9:00 a.m. PrimaryEA1 observed the Pupil stab other students, hit the Principal and EA3, smash a mug in the class, and say "I want people to die".

89The VP and PrimaryEA1 followed the Pupil around for several hours to protect him and other children. The Pupil attempted to hit the VP with a stick and after PrimaryEA1 grabbed the stick he began to batter her around the face, neck and shoulders. He hit her very hard repeatedly and then attacked the VP. A little girl who observed this incident was terrified.

90PrimaryEA1 attested that her entire face was swollen for several days. She was diagnosed with a concussion and neck and shoulder injuries, and was subsequently diagnosed with PTSD by her family doctor and by a psychiatrist. She has suffered a wide variety of physical and emotional symptoms from the injuries she received while working with the Pupil in September and October 2018. The injuries have affected PrimaryEA1's ability to care for her children, and have impeded her ability to return to work in a classroom and on a full-time basis.

91The Pupil remained at home while the School Board and the Appellant tried to develop a mutually agreeable plan. Extensive multi-party meetings were held on October 23 and 24, 2019. The School Board proposed different versions of a "Loop of School" Plan, whereby the Pupil would attend a quiet room within the school for 15 minutes or an hour, would gradually increase his time at school and would gradually re-enter the classroom in a manner that ensured the Pupil's safety and the safety of others. He would also be provided home instruction. The Private BCBA supported the idea of a Loop of School plan. However, the Appellant objected to any plan that did not immediately include a return to full-time attendance at the French Immersion school.

92After repeated requests for a "written exclusion" letter or a Notice of Suspension, on November 1, 2018, the Principal issued a suspension notice pursuant to s. 310 of the Act, retroactive to October 23, 2018. The suspension was for the purpose of investigating the assault on October 22 in order to determine whether the Pupil should be expelled.

93Also on November 1, 2018, the School Board identified three programs in English that may be appropriate for the Pupil: (1) A section 23 program in another jurisdiction (though far from the Appellant's home); (2) A therapeutic program offered by the School Board and supported by community partners; and (3) A congregated class at PPPS with the goal of reintegrating the Pupil into a regular classroom. The School Board offered transportation for first two options and the third option would be situated at the Pupil's home school. The parties had no further communications about these options until the School Board provided additional details about the PPPS option during the course of this hearing.

94In November and December 2018 the School Board offered two hours and then one hour of home instruction per day. Instruction was provided in English and the teacher identified that the Pupil remains at a kindergarten level in his reading. The Home Instruction teacher attested that the Pupil made some academic progress in reading, developing a sight vocabulary of around 25 – 30 words in English. He also made some progress in math and in his social skills.

95In terms of his overall behaviour dysregulation, the Home Instruction teacher observed that this was up and down, with no significant change during the course of her involvement. The Pupil hit her once on the hand and threw and ripped things in her presence. Swearing was an ongoing but not a constant issue. The Pupil called the teacher and a social worker demeaning names

96The Home Instruction teacher observed that the Pupil seemed very pleased to be working in English and advised the Home Instruction teacher that the Appellant wants to switch him to English.

97The Home Instruction teacher stopped working with the Pupil on December 20, 2018. The School Board has offered no further home instruction.

98Following the expulsion on November 20, 2018, the Pupil was assigned to PPPS, but he has not attended his home school or any other school.

ANALYSIS

I. Does the Activity Fall Within s. 310 of the Act

99Section 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:

3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.

100The School Board relied on section 310(1)(3) to expel the Pupil because the Pupil physically assaulted PrimaryEA1 at school, she suffered physical and emotional harm, and required treatment from medical practitioners.

101The Appellant agreed that the incident took place, but disagrees that the Pupil could have committed an assault given his age and lack of mental culpability. The Appellant also argued that since the CFSRB considers the Criminal Code ("CC") to aid in its interpretation of assault (since there is no definition in the Act), and given that the CC does not apply to children under 12, there can be no assault.

102The School Board argued that the Act applies to all students without any limitation with respect to age or otherwise, and that its purposes are to discipline a student who engages in prohibited behaviour and to keep other students and staff safe while at school. I agree. The Act's purposes are distinct from the purposes of the CC, and the consequences (being expelled from school in contrast to the penalties set out in the CC) are very different.

103The School Board submitted that while expulsion appeals involving children under the age of 12 are rare, they do occur. Counsel cited the example of an expulsion of an 11-year old "special needs" child for threatening with a weapon (a s.310 offense that is also a criminal offence) which was upheld on judicial review. Jackson v. Toronto Catholic School Board, 2006 23951 (Div.Ct).

104The Act requires a school board to suspend and possibly expel any student who causes physical harm requiring medical treatment. These actions ensure that a school board complies with one or both of the central purposes of the Act described above. M v. Toronto School Board (EA s 311.8), 2008 CFSRB 105 at para. 17.

105I find that the incident constitutes a physical assault as set out in section 310(1)3 of the Act. To find otherwise, because of the Pupil's age or lack of mental culpability as defined by the CC, would impede the School Board from fulfilling its "duties and responsibilities under the Act to maintain order and discipline, and to ensure that the school was kept safe and secure for all its students." Jackson, above, at para. 76).

II. Consideration of Mitigating Factors

106The next step is to consider the mitigating circumstances and whether they mitigate against an expulsion from the Pupil's school. The evidentiary burden in relation to the mitigating (and other) factors rests with the Appellant.

107Section 2 of Reg. 472/07 set out the following mitigating factors that "shall be taken into account" in all cases:

1. The pupil does not have the ability to control his behaviour;
2. The pupil does not have the ability to understand the foreseeable consequences of his behaviour;
3. The pupil's continuing presence in the school does not create an unacceptable risk to the safety of any person.

III. Does the Pupil Have the Ability to Control and/or Understand the Foreseeable Consequences of his Behaviour

108The Principal's Expulsion Report states that for the purposes of the expulsion recommendation the Principal was prepared to assume that the Pupil's behaviour is not within his control and may be a function of his disability. The Principal also assumed that the Pupil may lack the ability to understand the consequences of his behaviour in whole or in part (which she incorrectly used to support her conclusion in favour of the expulsion).

109The Principal explained that she relied on these assumptions notwithstanding that: (a) the Appellant had not provided any current medical information, and (b) she was unable to assess the degree to which the Pupil may or may not be able to control or understand the consequences of his behaviour.

110The Principal's assumptions align with the Appellant's perspective that the Pupil is unable to control his behaviour, and only understands the consequences when they are explained to him after one of his autistic meltdowns. The Appellant testified that the Pupil does not understand the nexus between a bad day at school and the removal of rewards at home. The Appellant observed that the Pupil's behaviour at school did not change after she withheld his rewards at home (access to the Ipad), so she stopped doing so.

111The lack of ability to control and understand the foreseeable consequences was supported by BCBA2's evidence that the behaviour of children with autism is often not planned, purposeful, or intentional in the same way it is for other types of behaviour disorders. Moreover, younger children have difficulty understanding their own behaviour. BCBA1 and BCBA2 agreed that when behaviour is working for an autistic child for attention-seeking (or other) purposes, the behaviour will continue when the responses (providing attention) reinforce the behaviour. In other words, the foreseeable consequence of aggressive behaviour may be the receipt of attention from staff rather than the negative impact of hurting others.

112I find that the Pupil does not have the ability to control his behaviour and does not have the ability to understand the foreseeable consequences of his behaviour.

IV. Does the Pupil's Continuing Presence in the School Create an Unacceptable Risk to the Safety of Any Person?

113The parties agree that there is a "high threshold" to meet in determining if a risk is "unacceptable". This is a forward-looking assessment, which permits "a certain level of risk." KR and MR v. Greater Essex County School District Board (EA s 311.7), 2010 CFSRB 8 at para. 29.

114The Appellant testified that she worried every day that the Pupil's safety was in jeopardy because of his pattern of "eloping" from the school, which is situated next to a river (and a forest). She worried that because of his autism the Pupil "would go for a swim" in the river next to the school.

115The Appellant also testified that if everything stays the same the Pupil would not go back to [The School] (or any other school). She believes that the current supports for the Pupil would render his return to school unsafe.

116The School Board is also very concerned about the Pupil's safety, particularly when he "elopes", and they are concerned for the safety of other students and staff. The School Board submitted that the continuing risk posed by the Pupil's presence at [The School] is "unacceptable" within the meaning of the Act. The Pupil is bigger and taller than his peers and he is very strong. The Pupil has repeatedly assaulted his peers and staff. He repeatedly threatens to kill his peers and staff, often following these threats with acts of violence (such as hitting, punching, kicking or throwing items). He has caused bodily harm of varying degrees to both staff and students: cuts, bruises, and concussion. He has caused emotional and psychological harm to staff and students. The PrimaryEA1 has been diagnosed with PTSD. His grade 2 classroom teacher was hospitalized, other staff required "stress leaves", and students reported that they have stomach aches due to the Pupil's behaviour. The students and staff worry for their safety. The serious risk that these harms will continue is plainly unacceptable.

117In summary, the parties agree that in the absence of any changes, the Pupil's return to [The School] creates an unacceptable risk to his own safety and/or to the safety of others. Where the parties disagree is with respect to the Appellant's assertion that if "appropriately accommodated the Pupil does not pose a risk other students."

118For the reasons above and below, I conclude that the Pupil's continuing presence in the school does create an unacceptable risk to the safety of any person, and as such does not mitigate against the seriousness of activity and does not mitigate against the expulsion.

119At the hearing the Appellant and BCBA2 queried whether the Pupil has undiagnosed learning disabilities. While this question remains unanswered the parties agree that the Pupil spent very little time learning in class in grade 2, and is well behind his peers academically. The classroom instruction is in French. In mid-September 2018, the Sert teacher became concerned that French was a burden that was aggravating the dysregulation. She was concerned that the Pupil was unable to understand the classroom teacher (who is a native Francophone in contrast to the grade 1 teacher). The academic work with Private BCBA and the Home Instruction Teacher was in English, yet his difficulties with reading and writing also extend to his first language. Various School Board witnesses agreed that French is a trigger and that the Pupil has repeatedly articulated that he "hates" French. At a meeting held on October 24, 2018, various staff and M.M., a professional who is employed an outside agency that provides autism services, suggested that French Immersion may be unnecessary pressure for the Pupil and that French triggered him. [The School] only offers a French Immersion Program. In light of his learning and behavioural needs, the requirement that the Pupil learn in French would continue to act as a trigger and ameliorate the Pupil's frustrations about school.

120The School Board's attempts to accommodate the Pupil in September and October 2018 were not successful in supporting the Pupil to stop his violent behaviour. The School Board's efforts included: Re-involving BCBA1 (whose role with the School Board includes observing and assessing students with ASD, developing and overseeing ABA plans and coaching, as well as modeling and training staff on ABA methods); Conducting an Open-Ended Functional Assessment; Revising the Pupil's IEP; Assigning additional one-to-one support (including PrimaryEA1 on a essentially a full-time basis in late September or early October); Prioritizing the Pupil's needs for EA support over other students; Implementing an ABA Facilitator Support Plan; Meeting with the Pupil's Private BCBA at school and in the Pupil's home (and agreeing to pay her for consultative purposes); Conducting multi-party meetings with professionals who work outside of the School Board; and, Changing the reward system.

121The School Board acknowledges that they are unable to provide the level of support requested by the Appellant. BCBA1 and BCBA2 agreed that the Pupil requires Tier 3 (intensive) ABA support. Unfortunately, the Pupil continues to be on the waiting list for government-funded ABA support from the Ministry of Community and Social Services. The School Board does not fund or provide students with the level of support that was requested by the Appellant and BCBA2. I accept BCBA1's testimony that the School Board cannot implement a comprehensive Functional Behavioural Assessment (for safety and capacity reasons), as this type of assessment must take place in a controlled clinical setting. BCBA1 also testified that while the goal is to support the Pupil to change his behaviour, school staff cannot ignore or extinguish the Pupil's aggression for safety reasons (including the prohibition against the use of physical restraints at school).

122The School Board's other initiatives, which could form part of a plan to accommodate, cannot be implemented because the Appellant does not agree that these initiatives are in the Pupil's best interests. Therefore, the School Board is unable to re-introduce the Pupil to school by way of a "Loop of School" partial day (in a congregated classroom), and they are unable to rely on the Appellant to pick up the Pupil if his dysregulation becomes unsafe to himself or others.

123The School Board and the Appellant do not currently have open and honest communication as recommended in the 2017 psycho-educational report. The Appellant failed to disclose incidents of violence at home and at the YMCA and the School Board failed to disclose various violent occurrences and "lock-downs". The Appellant's actions of swearing in front of the Pupil and denigrating the School Staff may account for the Pupil swearing, yelling and "hating" school staff. The lack of communication and poor communication between the parties impedes both accommodation and the cooperation that is required to manage the Pupil's behaviour.

124In the absence of a comprehensive psychiatric/psychological/ psycho-educational assessment the parties do not know if the Pupil's aggression is being caused by something other than autism, nor are they aware of any treatment that may assist the Pupil.

125The Pupil's inability to control his behaviour or understand the foreseeable consequences of his behaviour, and the lack of utility of disciplining the Pupil following his autistic meltdowns, puts the safety of others at risk, particularly when the aggressive behaviour serves an attention-getting or other purpose.

126Given the Pupil's complex needs and the interplay of various factors that may underlie his aggressive behaviour, I find that the Pupil's continuing presence in the school does create an unacceptable risk to the safety of any person. While it is relevant to consider my finding that the Pupil cannot control or understand the foreseeable consequences of his behaviour the need for a safe school environment for all students and staff outweighs the impact of these mitigating factors. These factors are not sufficiently mitigating as to render expulsion inappropriate in light of my findings respecting unacceptable safety risk.

V. Consideration of Other Mitigating Factors

127Section 3 of Reg. 472/07 states that the following 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.

128The Appellant argued that on the plain reading of the regulation, the other factors do not weigh "in favour" of expulsion: they are only relevant if they would mitigate against. I agree. Of the additional factors I have considered the following.

VI. The Pupil's History

129I accept the School Board's evidence with respect to the Pupil's repeated threats and assaults against school board staff and peers in September and October 2018. This history does not mitigate the seriousness of the activity or the appropriateness of the expulsion.

VI. Progressive Discipline

130The definition of progressive discipline is set out in CV v. Simcoe Catholic District School Board (EA s. 311.7) 2010 CFSRB 5 at para 42.

Progressive 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, supports, and consequences that are developmentally appropriate and include learning opportunities for reinforcing positive behaviour while helping students make good choices.

131I agree, in part, with the Appellant's assertion that the School Board did not utilize progressive discipline. Rather than focus on the punitive aspects of progressive discipline, by applying a series of suspensions before moving to an expulsion, the School Board attempted to work with the Appellant to avoid the September 27 suspension and the October 22 suspension that led to the expulsion. The School Board preferred meetings and a proposed case conference to address the Pupil's educational needs. The Appellant took the position (as is her right) to insist on a formal suspension or exclusion order rather than accept an informal request to pick up the Pupil and to keep him at home until an agreed-upon plan could be implemented.

132The School Board expended considerable resources in its attempts to keep the Pupil at school and to support him to manage his behaviour. While the School Board erroneously changed the Pupil's rewards from a "token" system to a "match and self" system (which it subsequently reversed), I find that it complied with the holistic approach to discipline described above.

133The School Board's failure to "punish" the Pupil for his bad behaviour at school makes sense in the context of this case. Given my finding that the Pupil could not control or understand the foreseeable consequences of his behaviour, it would have been inappropriate for the School Board to apply progressive discipline in the punitive sense. The Principal articulated the futility of penalizing the Pupil in the Principal's Expulsion Report.

134The failure of the School Board to use progressive discipline does not mitigate the seriousness of the activity or the appropriateness of the expulsion.

VII. How the Suspension or Expulsion Would Affect the Pupil's Ongoing Education

135Pending a resolution of the HRTO Application, the effect of the expulsion is not clear as the Appellant testified that she would not re-enrol the Pupil at [The School] or at any school unless appropriate accommodations are implemented. The CFSRB has no jurisdiction to order any accommodations.

136On the assumption that the HRTO Application is resolved and the Pupil is re-enrolled at PPPS or at one of the treatment programs, the impact of the expulsion will likely be positive.

137The Pupil will have a fresh start with new peers and new staff, which was suggested by the Private BCBA at the October 24, 2018 multi-party meeting.

138The program will be taught in English, which is the Pupil's first language, rather than in French. During the Home Instruction sessions the Pupil seemed very pleased to be working in English.

139There may be a treatment component and/or greater individualized attention than what was offered at [The School].

140I note that BCBA2 articulated in her report that an expulsion or suspension may have a significant negative effect on a student. However, I find her conclusions to be speculative and of little value. In response to BCBA2's arguments against the expulsion I note that, in this case, the Pupil's ability to trust and relationship with School Board staff is already a problem. Moreover, the Pupil does not understand the connection between the activity, the expulsion and being punished. While it is possible that the expulsion will serve as to reinforce and may lead to more "eloping or aggressive" behaviour, it is also possible the Pupil will be happy to attend a new school where he can develop relationships with a new group of peers and learn in English

141The impact on the Pupil's education does not mitigate against the seriousness of the activity or the appropriateness of the expulsion.

viii. The Age of the Pupil

142The parties agree that the Pupil's age, being 7 years old, is a mitigating factor. However, I accept the School Board's argument that for the reasons set out in this decision the Pupil's age is not sufficiently mitigating to render expulsion inappropriate in the circumstances.

VIII. Whether the Behaviour was a Manifestation of a Disability Identified in the Pupil's Individual Education Plan and Whether Appropriate Individualized Accommodation has been Provided

143The Pupil's IEP dated December 9, 2016 and revised on January 13, 2017, October 15 and 25, 2018 describe the Pupil's areas of need as: Dexterity, Fine Motor and Letter Formation Skills; Letter Recognition and Phonological Skills; Self-Regulation & Self- Calming Skills; Aggression Management; Transitions; Expressive Language Skills; and, Sensory Processing / Integration.

144The Pupil's behavioural struggles include triggers, frustration and dysregulation. In consideration of the Pupil's needs as set out in his IEP, and in consideration of the Appellant's testimony that the dysregulation primarily takes place at school, I accept that on the balance of probabilities the Pupil's behaviour is a manifestation of his disability which was identified as: Autism-Communication.

145I accept the School Board's argument that human rights jurisprudence requires that a respondent make all reasonable efforts to provide "appropriate accommodation" up the point of undue hardship. The duty to accommodate is not a duty to provide perfect accommodation or a perfect accommodation process in abstract terms regardless of the practical exigencies of a respondent's circumstances. Fisher v. York University, 2011 HRTO 1229 at para. 42 and 56.

146In the context of a school expulsion appeal I define the test as follows: Whether the accommodations that were made, or not made, by the School Board led to the behaviour that led to the incident.

147The evidence in this case is inconclusive. Earlier in this Decision I articulate a variety of reasons to support the determination that the Pupil's continuing presence in the school poses an unacceptable risk to the safety of any person and I address the issue of accommodation in that context.

148With respect to this part of the test, I agree that the School Board is required to provide "appropriate accommodation" up the point of undue hardship. I make no finding as to whether the accommodations that the School Board could or should have provided would have prevented the Pupil from the escalating dysregulation that he experienced in September and October 2018. The determination as to whether the Appellant's requested accommodations are appropriate and not past the point of undue hardship is a matter for the HRTO to decide.

149Since the evidence does not establish the causal nexus between provision and/or failure of the School Board's accommodations and the Pupil's violent dysregulation, which began in July 2018, I find that this factor does not mitigate against the seriousness of the activity or the appropriateness of the expulsion.

IX. Whether the Expulsion is Likely to Result in an Aggravation of Worsening of the Pupil's Behaviours

150I agree with the School Board's submission that the Pupil's behaviours may improve if he attends PPPS in a special, highly accommodated program prior to his reintegration in a regular classroom, which the School Board described during the hearing (though not before). The proposed congregated class would provide the Pupil with one-to-one attention and a more intensive application of ABA strategies in a small classroom. However, in the absence of an IPRC hearing and any subsequent appeals, the Pupil's placement in a "regular class with resource assistance" cannot be changed.

151Therefore, the question to be answered is whether the Pupil's placement in an English language instruction classroom where he can have a "fresh start" with his peers and teachers is likely to result in an aggravation or worsening of the Pupil's behaviours.

152I have addressed this question when I dealt with the impact of the expulsion on the Pupil's education.

153I do not find that the expulsion is likely to result in an aggravation or worsening of the Pupil's behaviour. Therefore this factor does not mitigate against the seriousness of the activity or the appropriateness of the expulsion.

154On a final note, while the CFSRB has no jurisdiction to make the following order it may be very helpful to the Pupil and to his future educational success at PPPS (or elsewhere) for the parties to agree to a comprehensive psychiatric/psychological/ psycho-educational assessment. This may assist the parties to ensure that the Pupil's treatment needs (if any) are met and to appropriately accommodate the Pupil, with the goal of preventing the need for any further suspensions or expulsions.

ORDER

155On January 17, 2019, the CFSRB made the following order:

The Child and Family Services Review Board confirms the School Board's decision to expel the Pupil from [The School] on November 20, 2018.

CONFIDENTIALITY ORDER

156Pursuant 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 Appeal, with anyone including through the media or online. 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.