DD v. Renfrew County District School Board, 2019 CFSRB 21

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DD

Appellant

-and-

Renfrew County District School Board

Respondents

AMENDED DECISION

This Order corrects a typographical error in paragraph 29 of the original order issued on April 09, 2019. The Order issued read: “Nonetheless, at the hearing the Applicant stated that the Pupil had a successful Grade 9 year, gaining all 8 available credits.” This statement has been corrected to: “Nonetheless, at the hearing the principal stated that the Pupil had a successful Grade 9 year, gaining all 8 available credits.”

Adjudicator: Eva Nichols

Amendment Date: April 12, 2019

Citation: 2019 CFSRB 21

Indexed As: DD v Renfrew County District School Board (EA s.311.7)

APPEARANCES

DD, Appellant

John Pepper, Counsel

Renfrew County District School Board, Respondent

Tracy Lyle, Counsel

Introduction

1This is an Appeal to the Child and Family Services Review Board (the “CFSRB”), filed under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended, (the “Act”) of the October 31, 2018 expulsion of A.D. (the “Pupil”) from all the schools of the respondent school board, the Renfrew County District School Board (the “Board”). The Appellant is the Pupil’s mother, D.D.

2The CFSRB heard the appeal on February 22^nd and March 26^th, 2019. The CFSRB had to decide whether the Pupil’s expulsion from all the schools of the Board was appropriate and, if so, whether he should be expelled from his school alone or from all the schools of the Board.

3On March 29, 2019, the CFSRB issued the following order:

• The School Board’s decision to expel the Pupil from all schools of the School Board is quashed.

• 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.

• The CFSRB strongly recommends that, prior to the Pupil’s return to school, an Identification Placement Review Committee (“IPRC”) be convened as soon as possible to consider the Pupil’s identification as an exceptional pupil, in accordance with the recent Psychological Assessment Report, dated January 29, 2019, and to determine the most appropriate placement for the pupil’s ongoing education, as part of the IPRC’s statement of decision.

• Following this order of the CFSRB, the Pupil will no longer be deemed an expelled pupil and will therefore not be eligible to access the School Board’s program for expelled students, in accordance with the Ministry of Education’s Policy/Program Memorandum No. 142, School Board Program for Expelled Students. Nevertheless, given how long the pupil has been out of school, the CFSRB recommends that the School Board facilitate the continued provision of an appropriate educational program for the Pupil until such time that arrangements have been made for his return to school and for his access to an appropriate special education placement, in accordance with the IPRC’s statement of decision.

4The reasons for this order are set out below.

THE LAW

5Section 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.

6Section 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.

7Section 3 of O. Reg. 472/07 reads 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.

background

8The Pupil is 15 years old and at the time of the expulsion was attending a secondary school (“the school”) operated by the Board in the community where he lives. The school is semestered and in the first semester of the 2018/19 school year, the Pupil was taking four subjects. The school has a total of 750 students of whom approximately 10 are black, including the Pupil.

9On October 3, 2018, the Principal of the school received an email from a teacher asking her to investigate the allegation that the Pupil had posted a rap video on his personal YouTube channel, which was vulgar, homophobic and threatened violence against some named individuals involved with the school, both a teacher and some of the students.

10The Principal initiated an investigation on the following day, October 4, 2018. She notified the school support worker of the investigation and contacted the parents of the students named in the video, who did not attend school on that day.

11The Pupil was called to the office and confirmed to the Principal that he had posted the video on his YouTube channel. When asked, he showed the video to the Principal on his IPad. He did not deny that he wrote the video as a form of “diss-rap” or that he had posted it on his YouTube channel.

12The Appellant was contacted to come to the school. At the request of the mother of the students who were named in the video and who were absent from school on that day, a member of the Ontario Provincial Police (“OPP”) was also in attendance. The police officer recommended that the videos be taken down from the YouTube channel right away. After some initial reluctance on the part of the Appellant, the videos were taken down on the evening of October 4, 2018, following the Appellant’s discussion with her lawyer.

13October 5, 2018 was a professional activity day for the school and students were not in attendance. The Principal continued her investigation and on October 9, 2018, issued a letter to suspend the Pupil for 20 days, starting from October 4, 2018 to November 6, 2018.

14In this letter the Principal confirmed that she was continuing her investigation into the matter of the videos on YouTube, in order to determine whether to recommend to the Discipline Committee of the Board that the Pupil be expelled. The letter stated that the Pupil would have access to a program for suspended students, which would enable him to continue his education. The Principal further stated that the suspension could not be appealed at that time.

15The Principal further confirmed that a Violence Threat Risk Assessment (“VTRA”) was being scheduled by the Board. The purpose of this process is to consider the level of threat that the actions of a given student represent. The VTRA meeting was convened on October 25, 2018. While this process usually calls for parental consent, there was no evidence provided to the CFSRB nor did the principal’s letter to the Pupil’s parents indicate that such consent was sought before making the referral.

16The VTRA meeting was chaired by the Board’s Mental Health Leader and was attended by the Principal, the Vice-Principal, a school liaison officer from the OPP, a representative of the Phoenix Centre, which is a local mental health facility, a member of a local Family and Children’s Services agency and a secondary school counsellor who works for the Board. Parents are typically not invited to the VTRA meeting, although, as mentioned above, their consent is usually sought prior to the convening of the VTRA meeting.

17On Friday, October 26, 2018, the Principal mailed a letter to the Pupil’s parents to tell them that she was recommending to the Discipline Committee that the Pupil be expelled from all schools of the Board. She stated that the Discipline Committee will be convened on October 31, 2018 at 9:30 a.m. to make a decision on this matter. This letter was accompanied by a summary of her report, including the fact that the VTRA had determined on October 25^th that the Pupil was designated a “medium risk” and he represented a “lingering concern about his potential to act violently”. The actual VTRA report was not provided to the parents or to the Discipline Committee.

18The Principal telephoned the parents on October 26^th to tell them that a letter had been mailed to them about the expulsion. This was followed by an email on October 30^th to tell them that they could attend the expulsion hearing the following morning and could speak at this meeting, if they so wished.

19On October 31, 2018, the Discipline Committee of the Board supported the Principal’s recommendation and expelled the Pupil from all schools of the Board.

20In accordance with the Discipline Committee’s decision, the Pupil was referred to the Board’s program for expelled students, which, for this Board, consists of 5 hours per week home instruction. The home instruction is provided through the Board’s continuing education program. Instruction is provided typically by supply teachers, as and when they are available to teach such subjects that are accessible through home instruction. For the Pupil this meant that he could no longer continue his courses in Drama and Physical Education. Eventually, he was able to continue to take one credit course, science, by relying on an on-line component with the support of home instruction, when that was made available to him.

21The Pupil did not deny that he had written and posted the “diss-raps” or that he had named people in his videos. He stated in his written statement to the CFSRB that he never intended to scare people. He stated that he had put them (the diss-raps) up for fun.

22He also stated in his written statement that from about Grade 6 onwards other students started saying “awful things” to him about his race, frequently using the “n-word” directly to him “whenever they felt like it” and at least a “couple of times a week”.

23The Appellant also referred to the bullying that the Pupil faced, primarily related to his race, such as being called “gorilla” by other students, hearing the above mentioned offensive “n-word” being used around him and having to tolerate people patting his hair. The Appellant also stated that the pupil made “diss-raps” as a way of handling difficult things and his feelings. She stated that she believed that the Pupil’s diss-reps were not made out of hate or anger. She said that such raps are very popular with the current generation of adolescents. She acknowledged that they were frequently vulgar and inappropriate and sometimes offensive, but that she believes that the writers of such diss-raps, including the Pupil, are not doing it to cause fear or harm.

24It is important to note that an expulsion hearing by the CFSRB is a new hearing. That means that it is not a review of the principal’s investigation or a review of the expulsion decision of the Board. For this reason, the CFSRB expects the parties to call direct evidence about the activities that led to the expulsion decision.

25The CFSRB’s role is to determine whether the conduct at issue jeopardised safety and reasonably justified expulsion pursuant to the statutory provisions of the Act. At the hearing of this appeal, I heard from the school principal, who conducted the investigation and the Safe Schools Superintendent of the Board, who has since retired from the Board. This Superintendent had no direct role in the investigation or the expulsion recommendation made by the principal in consultation with the Superintendent responsible for the family of schools in which the Pupil attended. There was no direct evidence from any of the students who were alleged to have been threatened by the Pupil’s actions.

26The Board entered into evidence a written statement from a teacher at the school who was named in the diss-rap in question. This statement was prepared just before the hearing into this matter began, about three and a half months after the expulsion decision was made. The statement was written on the request of the principal, who felt that the CFSRB should understand the impact of the video on the teacher in question. There was no direct evidence from any of the students. I heard the principal’s description of how the student felt, when they talked about these events.

27The principal stated that many students were worried about the raps posted by the Pupil and were concerned about the impact on their teachers. She acknowledged that the Pupil was angry at other students, but did not accept that this may have been the result of the racial slurs that the Pupil claimed that he faced. She did not acknowledge that the events that led to the expulsion of the Pupil may have been, at least in part, linked to the allegations of racial bullying raised by the Appellant.

28The principal also suggested that the Appellant denied the Pupil did anything wrong in creating the videos. In addition, the principal suggested the Appellant was responsible for the Pupil not having access to counselling and other behavioural supports by denying consent for referrals the Board attempted to make.

29This is a misstatement of the Appellant’s position. There is simply no evidence that the Board at any time offered or suggested a psychological or psycho-educational assessment for the Pupil. Nonetheless, at the hearing the principal stated that the Pupil had a successful Grade 9 year, gaining all 8 available credits. The statement (above) was also countered by the referral forms, entered into evidence by the Board, which had the Appellant’s signature signifying her consent to such assessments as were offered by the Board.

30The superintendent’s evidence was a retroactive analysis of the expulsion process by the Board. In cross-examination, the superintendent acknowledged that the process was not been perfect. However, the superintendent was not part of the principal’s investigation, she did not attend the VTRA meeting, although her position was listed on the VTRA Form as an expected participant, she was not involved in the preparation of the principal’s report and its recommendations and she did not attend the Discipline Committee’s deliberations. As such, her evidence shed little to no light on the issue before me, namely whether the Pupil’s expulsion was an appropriate decision given the circumstances and considering all mitigating factors.

31Following the expulsion decision, the Pupil was taken by his parents to a psychologist for assessment and counselling. The assessment report was entered into evidence and both parties agreed to accept its findings as expert evidence before the CFSRB. This expert also provided an affidavit to the CFSRB, which was accepted by both parties, that his expert report is fair, objective and non-partisan and represents his findings. Following the assessment and diagnosis, the Pupil has attended several counselling sessions with the psychologist and continues with counselling.

analysis

Did an infraction occur under Section 310(1) of the Act?

32The suspension letter sent by the Principal to the Pupil’s parents on October 9, 2018 stated that the reason for the suspension is “Code of Conduct, board and school policy: any activity listed in subsection 306(1) that is motivated by bias, prejudice or hate based on sex or sexual orientation; and uttering online threats to inflict serious bodily harm on students and staff”.

33The Expulsion Decision of the Discipline Committee of the Board does not explicitly state the grounds or the reasons for the expulsion decision. This is in spite of the fact that the Board’s Policy #13 states that “the Discipline Committee shall (emphasis added) make a written report including its findings of fact, its decision and the reasons for the decision”. (para 9.4)

34In spite of this deficiency of the Board’s Expulsion Decision, I accept that the actions of the Pupil in posting the diss-rap videos in which he not only threatens harm in general, but names both teachers and fellow students and uses vulgar and homophobic language are activities and an infraction of the Code of Conduct which will result in a suspension in accordance with the Act.

Did the activity take place at school, at a school-related activity or will it have an impact on the school climate?

35The posting of the diss-rap videos on YouTube by the Pupil did not take place at school or at a school-related activity. However, especially since it named and threatened potential harm to both students and teachers of the school, it inevitably had an impact on the school-climate, especially once the investigation began and the students were questioned by the principal. I did not hear any direct evidence from either teachers or students, other than the one teacher’s emailed statement produced some months after the event at the request of the school principal. Nevertheless, the posting of such videos can be considered a form of cyber-bullying, as described for example in R.T. v. Durham Catholic District School Board, 2008 CFSRB 94.

36Therefore, I accept that the activities of the Pupil were serious enough to result in a mandatory suspension.

Consideration of Mitigating Factors

37The next step is for the CFSRB to consider the mitigating circumstances and to determine whether they mitigate against an expulsion or not. The evidentiary burden in relation to the mitigating factors then rests with the Appellant.

• Does the Pupil have the ability to control his behaviour?

38The psychological assessment entered into evidence identifies that the Pupil’s profile meets the criteria for a diagnosis of Autism Spectrum Disorder (“ASD”). While it would be inappropriate to suggest that every person who is diagnosed with ASD is unable to control his or her behaviour, the psychologist’s conclusion suggest that the Pupil has “an inadequate sense of taking responsibility for his share of owning his behaviours and showing and acknowledging that he cares and wants things to change.”

39Coupled with the significant social communication challenges cited in the assessment data, including difficulty with modulating his reactions, it is apparent and accepted that the Pupil has significant difficulty with controlling his behaviour, especially at times when he feels frustrated or under attack.

40The Board stated that his ability to do well in school, as demonstrated by the fact that he obtained 8 credits in Grade 9, demonstrates his abilities and therefore, by extension, his ability to control his behaviour. There was no specific evidence to support this belief of the Board. Further, the Board cited his lack of remorse about the potential or actual impact of the videos and his initial refusal to remove them as appropriate reasons to pursue expulsion rather than the mandatory suspension. They interpreted these as a symptom of his ability to control and manage his behaviour.

41Based on the assessment data, which was accepted by both parties, and was not in any way challenged by the Board and on the earlier references to the Pupil’s social communication difficulties reported in his school based documentation, I am satisfied that the Pupil has limited ability to control his own behaviour and that this ability is further reduced when he feels under attack. It is encouraging to note that the ongoing counselling that he is participating in addresses this factor.

• Does the Pupil have the ability to understand the foreseeable consequences of his behaviour?

42The psychological assessment addressed this matter in some detail, as follows:

“A feature of ASD is that one can be so highly absorbed in an activity that it becomes a pre-occupation, with an over-intensity to it and an over-focussing of one’s interest and effort. In that sense, an activity, particularly if personally important, is over-taken by emotion, by impulsivity and a pre-disposition to over-react in intensity and/or rigid thinking. To say that [the Pupil] foresaw the social meaning and consequences of his actions, and with a degree of sufficiency and necessity that one would expect of a typical adolescent his age would exceed what is typical on most individuals on the spectrum.”

43Prior to this psychological assessment, there had not been a full psychological or psycho-educational assessment done for the Pupil. The ASD diagnosis is new and followed the expulsion.

44The principal stated in her evidence that, as far as she was concerned, the Pupil had the ability to control his own behaviour and to foresee the consequences of his behaviours. Yet, as recently as the Pupil’s Grade 8 year, there had apparently been a referral made for counselling support for the Pupil, initiated on parental request, which resulted in the development of a Behaviour Intervention Plan. This written Plan stated that the Pupil needed to be helped to learn appropriate coping strategies when feeling displeased / angry with peer interactions. Further, that he should also be helped to seek out adults when needing support and not engage in aggressive incidents to resolve problems.

45It appears that this Behaviour Intervention Plan and its recommendations were not maintained as the Pupil moved from Grade 8 to secondary school. Had that been done and had the Pupil been referred for a psychological assessment prior to the expulsion, the events that led to his expulsion might have been avoided.

46On the basis of this information, I am prepared to accept that the Pupil did not at the time of the expulsion have the ability to consider and understand the foreseeable consequences of creating and posting these videos on YouTube.

• Does the pupil’s continuing presence in the school create an unacceptable risk to the safety of any person?

46In order to answer this question, the CFSRB has to consider how likely it is that the Pupil would carry out any of the threatened actions that were included in his videos. A second component of this question is how likely are other students to believe that he would carry out the threatened actions?

47The psychological assessment answered the first question regarding the level of threat, as follows:

“There is low risk that the Pupil would actually carry out any of the extreme actions contained in his postings. His writing is deliberately hyperbolic and crafted to go over the top in order to draw attention and to stand out and outdo other contributors to this genre, almost as if he treated it as a game that he then threw himself into without brakes and to win.”

48The VTRA assessment, even though it did not have the ASD assessment available, considered the risk at a medium, rather than high, level, which indicated that the threats can be carried out, as they are plausible and concrete. At the same time, the assessment stated that there was no data to support a finding that the Pupil had access to the means of carrying out the threat.

49Neither assessment states a zero risk that the Pupil may carry out some of the threatened actions. However, there has been no suggestion that he has access to any weapons or that he is indifferent to the potential consequences of carrying out the threats. Further, the OPP reported at the VTRA meeting that while the named male students had been “leery of returning to school”, they were attending school and the named female student stated, when asked that “she didn’t want anything to do with the Pupil”, but also continued to go to school. When specifically questioned about being afraid or concerned, the principal said that the students agreed that they were scared.

50The strongest negative reaction to and concern about the student’s impact on the school climate is contained in the email submitted at the hearing on behalf of the teacher named in the video. I accept that the individual felt and possibly will continue to feel threatened. His statement that if the Pupil were to return to the school, then he, the teacher, would request to be relocated to another school is significant, although it may not necessarily be reflective of the Pupil’s impact on the school climate for students.

51Similarly, the tone of the principal’s inquiry report, which describes the Pupil’s actions in such terms as “brazen” and “drastic” implies that, even if the Pupil’s return to the school does not represent an unacceptably high level of risk for students, it may be better for all concerned if the Pupil were to consider attending another school on his re-entry.

52I noted the Board Superintendent’s evidence that, while in October, at the time of the expulsion decision, she felt satisfied that the Pupil’s presence represented an unacceptable risk for the named students and the named teacher, and therefore the whole school and even the Board as a whole, she might not support that decision after seeing the psychological assessment of the Pupil. She referred to the low risk cited by the psychologist and the expected benefits for the Pupil of the ongoing therapeutic counselling, which will help the Pupil to have better coping mechanisms and strategies to address any future bullying and racist epithets.

53Based on the evidence of the principal and the teacher’s email, I understand that the Pupil’s actions generated a high level of fear and concern for both students and teachers of the school. This was further enhanced by the investigation process and the interviewing of both students and staff by the police. The VTRA Report includes the police statement that the students who were questioned by the police were ‘scared”. Such reports are frequently the result of such investigations. That does not mean that therefore there should be no investigation or that such concerns should be ignored. Nevertheless, given that there was no evidence that the Pupil had the means to carry out the potential threats and the low risk cited by the psychologist whose findings as expressed in the assessment report were accepted by both parties, I am not satisfied that the Pupil’s presence represents an unacceptably high risk to the actual safety of others going forward.

Considering other mitigating factors

54Regarding the pupil’s history, the Board stated that the Pupil had many suspensions during his school career, primarily for fighting. Although he had attended several schools within the jurisdiction of the Board and was home schooled at some point, he continued to present with such behavioural challenges.

55The Appellant cited the difficulties that the Pupil had faced throughout his school career as one of very few black students in a primarily non-racialized environment.

56While there were no specific concerns about the Pupil’s academic history, given the many suspensions and the reasons for them, the Pupil’s history is not a mitigating factor. However, the failure of the School Board to provide progressive discipline, as opposed to punitive, is.

57In accordance with its mandate, the CFSRB considers whether a progressive discipline approach has been used with a Pupil, when considering mitigating factors. 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.”

58The Pupil had many suspensions during his school career. However, these suspensions were all of a similar length and did not result in any significant follow up interventions or corrective steps on the part of the Board. While there were occasional referrals for counselling to a school counsellor, the Pupil was not referred for a psychological assessment by the Board to determine whether there were any underlying factors that impacted his behaviour. His referrals were described as a new referral on most of the forms entered into evidence and did not consistently suggest ongoing support or the need for a comprehensive assessment

59Therefore, it is clear to me that the discipline measures implemented by the Board to address the Pupil’s behaviours cannot be described as progressive discipline and were mostly punitive, rather than corrective.

60The next step in considering mitigating factors is a consideration whether the activity for which the pupil 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.

61The Appellant and the Pupil both referred to frequent racial slurs and the related bullying faced by the Pupil. The VTRA report also cited that the justification given for the events considered were the racial discrimination cited by the Pupil and his parents.

62Although the principal minimized the potential impact of the racial slurs faced by the Pupil and tended to dismiss this as a form of serious bullying, I am satisfied that the facts in evidence make this a significant mitigating factor. While such harassment does not justify or excuse the use of the homophobic slurs in the Pupil’s videos, the use of such inappropriate language does not eliminate this factor, as suggested by the principal.

63The CFSRB must next consider the impact of the expulsion on the Pupil’s ongoing education. The Pupil was attending the first semester of his Grade 10 year, taking four credit bearing subjects. Once the expulsion was implemented, given the very limited nature of the Board’s program for expelled students, he was only able to take one credit course and he had limited support for that in terms of home instruction.

64While evidence was given at the hearing that once he has completed his science credit, he will be able to embark on taking two more credit subjects through home instruction, even if he is successful in those subjects, he will finish his Grade 10 year with only three credits instead of the eight that he would have been expected to earn, had he been able to continue to attend school or had had access to a comprehensive program for expelled students. Such programs usually consist of access to a range of courses, as well as counselling supports and appropriate behavioural interventions.

65Therefore, there is no question that the expulsion had a significant impact upon his ongoing education. Even if he were to take summer courses, he will end up having to attend secondary school for at least one extra year, compared with his peer group. I am satisfied that this is indeed a significant mitigating factor in considering the merits of this Appeal.

66The age of the Pupil in this case does not represent a significant mitigating factor. He will be a year older than his peer group when he returns school, since he will likely not be able to enter Grade 11 next September with his age-appropriate peers. This does not represent a serious matter in terms of addressing the Appeal.

67In the case of a pupil for whom an individual education plan (“IEP”) has been developed, the CFSRB must consider whether the behaviour was a manifestation of a disability identified in the pupil’s IEP and whether appropriate individualized accommodation had been provided to the Pupil during his educational history.

68The Pupil had an IEP throughout his educational career with the Board. Some of the time the IEP was the result of his identification as an exceptional student by an Identification Placement Review Committee (“IPRC”), and sometimes the IEP stated that there was no such identification. It is clear that the Pupil had never been referred for comprehensive psychological testing by the Board, since the assessment carried out after the expulsion was the first time that the ASD diagnosis was considered. His identification by the IPRC, when it was convened, was a communication exceptionality of language impairment. Although the IPRC Statement of Needs noted social communication skill difficulties with adults and peers and related anger management issues, there was no referral to a related psychological assessment at any time.

69In September 2016, at the start of the Pupil’s Grade 8 year, there was a “new referral” made for behavioural screening by the school support counsellor. This led to the development of a Behaviour Intervention Plan. In January 2017 there was a further referral made for an educational assessment by the school’s special education resource teacher. In spite of these referrals, supported by parental consent, the Pupil’s IEP for the current school year (2018/19), states that he had no identified exceptionality; that his last IPRC had been in 2014; that the only relevant assessment data are the speech/language assessment from 2010. While a one page 2017 Safety Plan is attached to this IEP, it has limited information about how to assist the Pupil with his behavioural challenges and clearly was not updated for the current school year.

70There is no question that the above facts, the absence of a psychological assessment, the less than adequate IEP contents and the late diagnosis of ASD all count as significant mitigating factors.

71Lastly, the CFSRB is expected to consider whether the expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct. The Pupil’s evidence was that he did not intend to carry out the threats contained in his videos and therefore, he did not appear to understand that he had done something that merited expulsion. However, without the support provided through counselling, his reactions and his conduct could be significantly impacted, if he feels that he is unfairly treated and punished.

72In conclusion, I determined that, on the balance of probabilities, the evidence of the Board, taken in conjunction with the above mitigating factors and the recent ASD diagnosis and its implications, did not reasonably and adequately justify the expulsion decision. Therefore, the Order I issued on March 29, 2019, overturned the Board’s expulsion decision and I directed that the Pupil be allowed to return to school. I also directed that the record of the expulsion be expunged from the Pupil’s OSR and the Board’s records. Although the provision of special education services is outside the CFSRB’s mandate, I also recommended that the Board convene a new IPRC for the Pupil and develop an appropriate updated IEP, before returning him to school. Such a step will assist in enabling him to continue his education and will, I hope, ameliorate the impact of the expulsion on his ongoing education.

confidentiality order

73Pursuant 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.