LY and PY v. York Catholic District School Board, 2019 CFSRB 69

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LY and PY

Appellants

-and-

York Catholic District School Board

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: November 01, 2019

Citation: 2019 CFSRB 69

Indexed As: LY and PY v York Catholic District School Board (EA s.311.7)

APPEARANCES

LY and PY, Appellants

Self-represented

York Catholic District School Board, Respondent

Kate Dearden, Counsel

Introduction

1This is an Appeal filed under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended (the “Act”). The Appellants appeal their son’s expulsion from his own school on December 18, 2018.

2The Appeal was filed on January 11, 2019. After the Appeal was filed, the parties proceeded to mediation and a settlement was reached. In the settlement agreement, the parties agreed that the Appeal would remain open with the Child and Family Services Review Board (“CFSRB”) until the terms of the settlement agreement had been fulfilled. The settlement subsequently broke down. As a result, a pre-hearing was held on August 23, 2019 to prepare for the hearing.

the law

3Section 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.

4The Respondent has created a Safe Schools Policy pursuant to section 310(1)8 that sets out the following additional activities which may form the basis for a recommendation to expel:

• An act considered by the Principal to be significantly injurious to the moral tone of the school and/or to the physical or mental well-being of others;

• A pattern of behaviour that is so inappropriate that the student’s continued presence is injurious to the effective learning and/or working environment of others;

• Activities engaged in by the student on or off school property that cause the student’s continuing presence in the school to create an unacceptable risk to the physical or mental well-being of other person(s) in the school or Board;

• Activities engaged in by the student on or off school property that have caused damage to the property of the Board or to goods that are/were on Board property;

• The student has demonstrated through a pattern of behaviour that s/he has not prospered by the instruction available to him or her and that s/he is persistently resistant to making changes in behaviour which would enable him or her to prosper;

• Any act considered by the Principal to be a serious violation of the requirements for student behaviour and/or a serious breach of the Board or school Code of Conduct; or

• Where a student has no history of discipline or behaviour intervention, or no relevant history, a single act, incident or infraction considered by the Principal to be a serious violation of the expectations of student behaviour and/or a serious breach of the Board or school Code of Conduct.

5Section 3 of Ontario Regulation 472/07 (the “Regulation”) sets out the factors that must be considered when determining whether a student should be expelled. These factors operate to reduce the seriousness of the activity for which the student is expelled. They are set out below:

3. 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:

4. The pupil’s history.

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

6. 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.

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

8. The age of the pupil.

9. 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

The Incident

6At the time of the incident which led to the expulsion, the Appellants’ son was a grade 11 student (the “Student”) with the Respondent.

7On November 21, 2018, AB, another student at the school, spray-painted graffiti in the boys’ washroom. The graffiti appears to be a picture of a cross with the words “God is dead” written inside it.

8The Student reported the graffiti to the school administration and told them that AB had done it. AB received a five-day suspension on November 21, 2018 for this incident.

9AB learned that the Student had reported him. On snap chat, he threatened to smash the Student’s skull into a locker.

10On November 21, 2018, at around 10:00 p.m., the Student posted the following message on Snapchat:

so apperently this crackhead is bringing a strap tmrw lmao.

“Strap” means gun.

11Many students at the school saw the Student’s posting and began to talk about it on Snapchat, Instagram and group chats. Several students contacted different personnel at the school to raise concerns about the possibility that someone was bringing a gun to school the next day.

12Another student, CD, followed up with her own Instagram post. In the first post, CD said:

this is not a drill, everyone stay calm. TORONTO

13There was a picture of cartoon characters in a car that accompanied the post. Underneath the picture, there was a caption that said:

I said stay the FUCK CALM…

14CD posted a second message that said:

Apparently someone is bring a gun tomorrow??? (please stay safe)

15In the second post, CD reproduced a picture of AB’s graffiti and inserted a poll asking students if they were going to school tomorrow.

16The Student deleted his Snapchat post about an hour after he had posted it. He then posted a second message from the same account that said:

Yeo everyone stop saying no school tmrw if anything he’s coming for my head so jus stfu

17There were more posts that evening that came from a different account. They are set out below:

Yeo the mans who told me lied

They had no proof and I never said school shooting

18The Vice Principals involved in the investigation of the Student’s posts believe these additional posts came from the Student, but acknowledged that they were not sure. Although one of the Vice Principals believes the Student created a new account, there is no evidence to establish this.

19The Student concedes that he sent the first two messages. These are the messages that the Respondent says amount to a gun threat, the incident which led to the Student’s expulsion. In my view, it is not necessary to determine whether the Student also sent additional posts that evening.

20The school administration took the gun threat very seriously, followed the Respondent’s protocol and called the police.

21On November 22, 2018 at about 8:00/8:30 a.m., the principal of the school sent the following message to the school community:

The school has received information about a possible threat via social media. Police have been contacted. We are working with the police and will be determining our next steps in consultation with them.

The safety of our students and staff is our top priority and we will keep you informed as more details become available.

22The police investigated the gun threat and by 9:30 a.m. on November 22, 2018, determined there was no threat.

23Between 9:30 and 10:00 a.m. on November 22, 2018, the principal advised the parents and guardians that there was no threat at the school. An excerpt of this communication is set out below:

I want to provide an update to you regarding my earlier communication this morning. As you are aware, recent posts on social media raised concerns about our school’s safety. Please know that we have been in contact with York Regional Police who have investigated the matter. They have determined that there is no threat to our school.

24The school has approximately 800 students. By the end of the day on November 22, 2018, there were 100 students remaining. November 23, 2018 was a PA day.

25There is no dispute that the social media posts caused great concern in the school community. Many students and parents asked whether the gun threat was real and whether the school was safe. At least two ESL families told the school that they did not come to Canada to experience an incident like this.

The Student’s Discipline for the Social Media Posts

26The Student received a 20-day suspension on December 3, 2018 for posting on social media a message that stated there was a threat of a weapon being brought to the school.

27The principal of the school conducted an investigation into the incident. By letter dated December 6, 2018, he recommended to a superintendent with the Respondent that the Student be expelled from his school. In his letter, the principal stated the incident was of an extremely serious nature and violated the Respondent’s Safe Schools Policy.

28By order dated December 18, 2018, the Respondent expelled the Student from his school. The Respondent did not indicate the basis for the expulsion in its order.

analysis

Issue on the Appeal

29An expulsion appeal before the CFSRB is a hearing de novo. This is because the proceeding before the CFSRB is likely the first time where witnesses are called to give direct evidence about the events at issue. Under the CFSRB Rules of Procedure, the school board calls its case first, followed by the appellant. The school board bears the onus of establishing that the student should be expelled. The CFSRB does not sit in review of a school board’s expulsion process or decision.

30In determining whether a student should be expelled, the CFSRB first determines whether the alleged incident took place and whether the incident is an activity for which a school board may expel a student. Upon finding that these two criteria are met, the CFSRB considers the mitigating and other factors set out in Act and the Regulation in order to determine whether an expulsion is appropriate and if so, the kind of expulsion that should be given.

31In this case, the Appellants concede that the Student posted the messages saying a strap (gun) was being brought to school. They dispute the appropriateness of the expulsion given the context in which the message was posted, the Student’s history, and the seriousness of an expulsion.

Bullying

32The Respondent states the Student’s posts are a form of bullying against AB and a form of cyberbullying towards the school.

33Bullying is defined in the Respondent’s Bullying Prevention and Intervention Policy (the “Bullying Policy”) as follows:

Bully is a dynamic of unhealthy interaction that can take many forms. It can be physical (e.g. hitting, pushing, tripping), verbal (e.g. name calling, mocking, or making sexist, racist, or homophobic comments), or social (e.g. excluding others from a group, spreading gossip, or rumours). It may also occur through technology (e.g. spreading rumours, images, or hurtful comments through the use of e-mail, cell phones, text messaging, Internet website, or other technology).

Bullying consists of aggressive and typically repeated behaviour that has the effect of:

i. Causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual’s reputation or harm to the individual’s property,

ii. Creating a negative environment at school for another individual, and the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as those listed above in 3(d).

34Cyber-bullying is defined in the Bullying Policy as:

The use of information and communication technologies, such as e-mail, cell phones and pager text messages, instant messaging, personal websites and on-line personal polling websites, to support deliberate, repeated and hostile behaviour by an individual or group, that is intended to harm or threaten others, or where the individual should know that it could harm or threaten others.

“Bullying” by electronic means [includes],

i. Creating a web page or a blog in which the creator assumes the identity of another person;

ii. Impersonating another person as the author of content or messages posted on the internet;

iii. Communicating material electronically to more than one individual or posting material on a website that may be accessed by one or more individuals; [citations given]

iv. Sending message to or about another person that are hurtful or threatening through any means of social media (texting, e-mail, twitter, Facebook, etc).

35The definition of bullying is very broad under the Bullying Policy. But not all forms of bullying are expellable offences. Under the Act, a school board can expel a student for bullying if:

a. The student has previously been suspended for bullying; and

b. The student’s continuing presence in the school creates an unacceptable risk to the safety of another person.

36Both of these factors must be established in order to expel a student for bullying. The Respondent has failed to establish that these two factors apply in this case.

37The Student received a two-day suspension in Grade 10 for being disrespectful of staff at another school and verbally harassing a family in the neighbourhood. One of the Vice Principals gave evidence about this incident. He said the Student was asked to attend the home of a Grade 9 student and to act as the intimidator. The Student was there in case anything happened. The Vice Principal never spoke to the Student about what happened. What he relayed in his evidence was his understanding of the event. There were no details given about the Student’s actions during this incident. It is difficult to conclude on the basis of this evidence that the student was suspending for bullying.

38However, assuming that he was suspended for bullying, the Respondent has not established that the Student’s continuing presence in the school creates an unacceptable risk to the safety of another person.

39The Student and AB did not testify at the hearing. The Student is not required to testify at an expulsion hearing. He is permitted under the Act to give a statement, if he chooses. The Student did not give a statement in this case.

40Although AB and the Student did not testify, there is evidence before me that prior to posting his messages, the Student was threatened by AB. The Student filed two statements from other students about the threat. One student stated AB posted a message on Snapchat, called the Student a snitch, and posted a second message saying “you know you would have gotten your skull smashed into a locker if I knew”. A second student stated that after the Student told the office about AB’s vandalism in the washroom, AB posted that he would smash the Student’s head into a locker.

41This evidence is consistent with the snap chat post from AB which was produced by the Respondent. It said:

And he’s a pussy too cuz when I was in the hall he fist bumped me. How you gonna do that then go snake on me… why it’s because you know you would have gotten your skull smashed into a locker if I knew

42The Respondent filed two witness statements from other students about the Student’s posts. Both students understood that in his first post, the Student was referring to AB and they connected the Student’s posts to the graffiti incident.

43It is reasonable to conclude from this evidence that the Student’s posts were in response to the threat by AB. AB threatened the Student because he had “snitched” on him about the graffiti. The Student escalated AB’s threat to smash his head into the locker to someone was bringing a gun to school, which he later said was meant for him.

44One of the Vice Principals testified that AB’s mother had told her that AB was being threatened on social media and over the phone by the Student before the graffiti incident or on the day that it took place. There is no direct evidence about these threats – no copies of the social media posts and no witness statement by AB or his mother were produced. In the absence of any direct evidence about these alleged threats, I am unable to make any findings that they occurred.

45The Student should not have posted on social media that someone was bringing a gun to school the next day. There is no question it had a significant impact on students and staff. The messages were posted between 10:00 and 11:00 p.m. on November 21, 2018. By 9:30 the next morning, students and their parents/guardians knew there was no threat. Notwithstanding this timeline, there was great anxiety in the school community because of the Student’s posts. The Student’s posts were escalated by the posts of CD.

46That said, there is no evidence that the Student’s continuing presence at school presents an unacceptable risk to the safety of any person. He made a grave mistake, but that mistake does not in and of itself make him a safety risk. There is no objective evidence that the Student presents a safety risk. No risk assessment was undertaken by the Respondent.

47The Vice Principal who conducted the investigation into this event testified that the Student was cooperative during the investigation. The Student realized what he had done was wrong, and acknowledged that he should be disciplined. The Vice Principal testified that even though the Student was cooperative, he did not appear to appreciate the seriousness of his actions. That may be. There are likely many students who do not appreciate the consequences of their actions on social media. However, the fact that the Student did not appreciate the significance of his actions, does not on its own, mean his presence is a safety risk.

48The Respondent submits the Student should be expelled for bullying. However, it has not established the two criteria that must be met under the Act. As such, there is no basis upon which to expel the Student for bullying.

Breach of Safe Schools- Student Discipline Policy

49In addition to asserting the Student was expelled for bullying, the Respondent states his actions were in violation of all of its policies. A superintendent with the Respondent testified that the Student had used technology in an inappropriate manner - not to further learning - but to target an individual across mass media, blatantly instilling fear in the community. The superintendent suggested the Student’s actions contravened almost all of the additional activities for expulsion set out in paragraph 4 above.

50In my view, there are at two sections of the Safe Schools Policy that the Student’s actions could fit under. They are:

An act considered by the Principal to be significantly injurious to the moral tone of the school and/or to the physical or mental well-being of others

Any act considered by the Principal to be a serious violation of the requirements for student behaviour and/or a serious breach of the Board or school Code of Conduct

51The activities for which a student may be expelled from school are listed in section 310(1) of the Act. Subsections 310(1)1 to 7 set out a specific list of very serious activities. Subsection 310(1)8 authorizes school boards to add activities to this list. However, implicit in this authorization is that the activities added by school boards must be of a similar degree of seriousness to the other activities listed in subsection 310(1). It is a principle of statutory interpretation that where general terms follow a list of specific terms, the general terms will be defined to be of the same kind as the more specific preceding terms.

52It is clear that the government intended the much more serious disciplinary consequence of expulsion to be used for only the type of activities specifically listed in section 310(1). As a result, when school boards add additional activities for which a student may be expelled under section 310(1)8 and describe those activities in general rather than specific terms, as is the case here, it must be assumed that any activities falling within the policy are those of a similar degree of seriousness as those set out specifically in section 310(1).

53This interpretation is consistent with the purpose of the Act and its disciplinary provisions. The Act sets out a regime for student discipline in which two kinds of activities are defined: those of a less serious nature which may result in suspension under section 306 and more serious activities which may result in expulsion under subsection 310(1). The Act also gives students the right to attend school. To remove that right through an expulsion is a very serious action.

54The Respondent in this case, in exercising its authority under section 310(1)8, has not identified specific activities in its policy but rather, has added very broad descriptors which give rise to a discretion to decide if a particular activity is of a nature serious enough to justify expulsion. However, this discretion must be exercised in accordance with the implicit limits placed on section 310(1)8. Accordingly, a determination must be made whether the activity in which the Student has engaged is of a similar degree of seriousness as those set out specifically in section 310(1) and can therefore be a basis for expulsion.

55There is no question that the Student’s posts, communicating that a gun was going to be brought into the school, was a very serious act and even though he removed the post an hour later, it did have a significant impact on other students. I find the activity was of the same degree of seriousness as the specifically listed activities in section 310(1). The issue then becomes whether the Student should be expelled having regard to the mitigating and other factors set out in section 3 of the Regulation (see paragraph 5 above).

The Student’s Disciplinary History

56The Student does not have a significant disciplinary history. While in grade 10, he received a two-day suspension for being disrespectful of staff at another school and verbally harassing a family in the neighbourhood. In grade 11, he received a one-day suspension for being defiant and disrespectful to a teacher during lunch and a further one-day suspension for vaping in the boys washroom.

57The Student’s main issue at school appears to be his disengagement from it. In March 2018, while the Student was in grade 10, he was referred for attendance counselling services. In September 2018, while the Student was in grade 11, he received a second referral for attendance counselling services.

58On October 1, 2018, various personnel at the school met with the Student and his parents to discuss the Student’s attendance issues, credit deficiency and behavioural issues. The Student had missed 35 classes that school year and was 2.5 credits short. The school advised the Student that it would investigate reports that he was engaged in bullying and extortion of other students and if these reports were found to have any credence, the Student would be moved to another school. They advised the Student further that if his truancy and/or behaviour continued, he would be sent to the alternative education program or alternatively, he would be permitted to attend another local high school. During this meeting, the Student’s parents signed a form allowing the school to contact the Student’s doctor to substantiate his medical absences.

59There is no evidence that the school confirmed that the Student had bullied or extorted other students.

60The Student’s actions on November 21, 2018, although serious, were unprecedented. He reacted to a threat made against him and escalated it. It was a demonstration of incredibly bad judgment. It is not indicative of a bigger problem. As stated above, there is no objective evidence that the Student presents an unacceptable safety risk.

61The Student’s main problem is being disengaged from school. I heard that the only thing he really wants to do is to play basketball. He was not allowed to play basketball because of his attendance problems. In my view, being disengaged from school is not a basis upon which to expel a student. Expulsion is a serious form of discipline: it is not support or remediation.

62The Respondent did not follow a progressive discipline approach in this case. The Student had one and two-day suspensions. He received a 20-day suspension for the posts. That discipline was proportionate. To expel him was not.

63Finally, because of the unusual circumstances of this case, the Student has been out of school for almost one year because he did not attend the expelled students program. An expulsion now will have a further detrimental impact on his education.

64For these reasons, I find the Student should not be expelled.

Remedy

65Section 6 of Ontario Regulation 472/07 sets out the remedial authority of the CFSRB on an expulsion appeal. Subsection 6(4)2 states as follows:

After hearing an appeal from a decision of a board, the designated tribunal shall do one of the following:

If the board’s decision was to expel the pupil from his or her school only, quash the expulsion and reinstate the pupil to the school.

66This means returning the student to the school from which he or she was expelled. This interpretation is supported by subsection 6(6) which states:

If the designated tribunal changes an expulsion from all schools of the board to an expulsion from the pupil’s school only or quashes an expulsion and reinstates the pupil to his or her school, it may order that any record of the expulsion of the pupil be expunged or amended if the designated tribunal considers it appropriate in the circumstances. (emphasis added)

67A school board cannot circumvent a successful appeal of an expulsion from a particular school by requiring a student to attend a different school. This would effectively reinstate an expulsion that has been quashed on appeal. A student has the right to attend a different school with a school-only expulsion. The underlying reason to appeal such an expulsion is to allow a student to return to his or her own school. If the appeal is successful, a student has the right to do that.

68For these reasons, the expulsion is overturned and the Student is permitted to return to the school from which he was expelled.

order

69The CFSRB orders that:

a. The Respondent’s decision to expel the Student from his own school is quashed.

b. The record of expulsion shall be expunged from the Student’s Ontario Student Record and all other related documents held by the Respondent shall be amended accordingly.

confidentiality order

70Pursuant 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.