CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
JNF
Appellant
-and-
Ottawa-Carleton District School Board.
Respondent
DECISION
Adjudicator: Eva Nichols
Indexed As: JNF v Ottawa-Carleton District School Board
WRITTEN SUBMISSIONS
JNF, Appellant
Self-represented
Ottawa-Carleton District School Board, Respondent
Richard Sinclair, Counsel
Introduction
1This an Appeal filed under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended, (the “Act”).
2The Appeal relates to the decision of the Respondent school board (“the School Board”) to allegedly “effectively” expel the student from her school that she had been attending and where the events that resulted in her suspension occurred. The appellant acknowledges that there is no actual expulsion decision by the Respondent but claims that the so-called redesignation decision is an expulsion by another name and should therefore be open to the appeal process that is within the CFSRB’s (“the Board”) legislated mandate.
3She described in her submissions that the student, her daughter, had been experiencing some significant challenges and required certain accommodations in the school setting, which she alleges were not available and provided, as needed.
4The appellant disagreed with the School Board’s description of the events that led to the student’s suspension. She stated that the student was suspended by the principal for 20 days, pending an investigation whether to recommend to the School Board that the student be expelled from the school.
5The appellant further claims that she had been told that, if the principal’s investigation resulted in confirming the suspension, or, alternatively, determines that the student should be expelled, there would be an opportunity for the decision to be appealed. She further alleges that she had been advised, without specifying whether this advice was from the principal or someone else, that given the mitigating factors in this case, an expulsion was unlikely to be recommended. She further alleges that she had not been advised to obtain legal advice about this matter.
6For all of these reasons, she asks that the Board assume jurisdiction to hear the appeal overturn the School Board’s decision and return her daughter to her previous school and program.
7Following the suspension of 20 days, the appellant states that she was informed on February 23, 2022, that the student would not be expelled, but instead, was “redesignated”, i.e., transferred to another secondary school for the balance of her secondary schooling period. This information was communicated to the appellant in a letter from the Superintendent of Instruction for the School Board. The letter informed the appellant that the decision was made by the School Board’s Critical Incident Review Committee, and was made in accordance with the School Board’s procedure related to safe schools.
8Since there was no expulsion decision made by the Respondent, the Respondent alleges that the Board does not have the jurisdiction to consider the Appeal.
9The appellant disagrees and states that since the term “safe schools transfer” does not appear in the Education Act, the respondent’s actions amount to a de facto expulsion decision, and therefore, the Board has or should assume jurisdiction to consider the matter.
10Further, she states that it is her understanding that the school board’s policy, which enables a student to be redesignated without a right of appeal, is under review, and that therefore, the student in this case should have the benefit of the matter being evaluated in the context of any potential policy changes arising from that review.
11The appellant urges that this case should be distinguished from the Board’s recent decision in NH, JL and AG v. Ottawa-Carleton District School Board 2022 CFSRB 6, on the grounds that “the mitigating factors in this case were not given due weight by the school board in arriving at the decision to redesignate, rather than explore other more restorative measures to address the incident and this particular child’s vulnerable status”.
12For the reasons that follow, I do not find that the Board has or can assume jurisdiction in this matter.
THE LAW
Section 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:
Possessing a weapon, including possessing a firearm;
Using a weapon to cause or to threaten bodily harm to another person;
Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner;
Committing sexual assault;
Trafficking in weapons or in illegal drugs;
Committing robbery;
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.
- 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.
13This Regulation, titled Behaviour, Discipline and Safety of Pupils, states that the Board is the designated Tribunal to hear parental appeals of a school board’s decision to expel a student.
14The Regulation sets out the Board’s jurisdiction, mandate and the timelines for its actions and decisions.
15It is important to note that the Regulation does not directly address the issue raised in this Appeal, which is that, if the school board does not expel the student from his or her own school or from all schools of the school board, but implements the so-called safe schools transfer, in accordance with Policy and Program Memorandum 145 (“Progressive Discipline and Promoting Positive Student Behaviour”), does the Board have jurisdiction to hear an appeal of that decision?
16However, it must be noted that the Board has only assumed jurisdiction and considered appeals of expulsions, where it was clear that there was no legal bar to jurisdiction.
17I note that the current version of PPM 145 was issued on October 17, 2018, and it replaced the earlier PPM 145, which was issued on December 5, 2012. The safe school transfer directive for the purposes of school safety was added at that time and was differentiated from the suspension and expulsion process in the earlier version of the PPM.
background
18The appellant described in her submission her version of the events that led to the redesignation of her daughter to a different secondary school by the Critical Incident Review Committee of the School Board. She disagreed with the School Board’s version of the events and, in particular, denied that the incident included physical and verbal aggression towards a peer.
19The appellant also alleged that the events were escalated by the school staff, who ended up calling the police. She stated that the student was “overcome” by the fact that that the vice-principal blocked her exit from the room where her altercation with her peer occurred, and that this was the reason for the student pushing the vice-principal, which, in turn, resulted in the vice-principal having to attend the hospital for medical treatment.
20The respondents described the events differently. They stated that the student was physically and verbally aggressive towards a peer. Further, that this incident required the intervention of staff, including the school’s vice-principal. According to their submission, the student physically assaulted the vice-principal, which caused him to require medical attention.
21It was these events that led to the school board’s decision to redesignate the student to a different school.
22The appellant disagrees with the actions of the School Board and insists that the events effectively amount to an expulsion of her daughter. She disagrees with the steps taken by the school and stated that the matter could have been better and more appropriately handled by the school and the School Board.
23The appellant stated that she found it necessary to transfer the student from the school to which she had been transferred via the redesignation process to yet another school. She also included some detailed submissions on why she differentiated her daughter’s situation from the Board’s decisions in cases where students were administratively redesignated and the Board declined to assume jurisdiction, on the grounds that the legislation did not allow for taking that step.
24She also stressed that in this case there were no genuine safety concerns about the other student, and further, that the school staff’s actions contributed to the outcome. She concluded that in her opinion the redesignation was not necessary to ensure the safety and well-being of the school or its students. Further, that the redesignation step was “disciplinary in nature and not supported, necessary or reasonable in the circumstances”.
analysis
25Where a student is suspended, pending expulsion, the principal of the school must begin an investigation in accordance with section 311.1 of the Act, in order to determine whether the student should be expelled or not.
26An expulsion decision can only be made by the elected trustees of a school board. Once such a decision is made, the parents of the student, where the students are minors, or the students themselves if they are of age, are entitled to initiate an appeal to the Board. The Board’s jurisprudence is clear on this point.
27Following a hearing of the matter, the Board may uphold or overturn the expulsion decision. It is important to note that the Board’s hearing process is a de novo procedure. What that means is that the Board does not engage in evaluating the school board’s investigation/suspension/expulsion process, but rather focuses on the events that led to the matter being heard by the Board.
28In exceptional cases, where it is clear that the actions of the school board amount to or are in effect an expulsion through the exclusion of the student (see for example DN v. Toronto District School Board 2017 CFSRB 27), the Board may decide to assume jurisdiction, even if there is no actual expulsion decision made by the school board.
29That is not the case here. This student has not been expelled. This student also was not excluded or denied access to an educational program. While I note that the appellant stated that since the student had been in a specialized program offered by the School Board and described by the appellant as an “exclusive program”, her redesignation had more significant consequences than if she had been in a more traditional high school program. However, I do not find that this allegation allows for me to ignore the specifics of the Board’s mandate.
30While I very carefully considered the submissions of the appellant about the matter and her submissions that the school board’s actions denied her daughter due process, as mandated by the Education Act and her disagreement with the way the matter was handled, I find that I cannot accept these arguments as sufficient grounds to ignore the Board’s clearly set out mandate and the limitations of that mandate.
31I note that the process relied upon by the respondent to transfer the student to another school relies on the specific wording of PPM 145 and its description of the process. It is important to note that PPM 145 states that “where the transfer is necessary to protect a student, it is preferable that the student who has been harmed not be moved”. I note that the appellant stated in her submissions that the other student was not in fact harmed, and that he and the appellant’s daughter have or have had a continuing relationship after resolving the incident on their own. Even if this is correct, it does not alter that the matter was focussed by the School Board on the safety and well-being of the school as a whole, as well as the individuals (student and vice-principal) involved in the events.
32In the Divisional Court’s Decision of KW v. Toronto Catholic District School Board 2018 ONSC 2794, the Court confirmed that a school board’s discipline policy can include an involuntary transfer of a student to another school.
33I note that the appellant argues that the specific circumstances of this case and KW are sufficiently different from one another that I should not apply or consider the findings of KW to her daughter’s case. Similarly, she asked me to distinguish this case from the findings in other decisions of the Board, where it was determined that the Board had no jurisdiction, due to the absence of a formal expulsion decision by the School Board.
34I do not find that this differentiation is directly relevant. I note that the Court in KW accepted that such a transfer is part, or may be part, of a school board’s progressive discipline process. I see no reason to disagree with or counter that.
35The transfer to the Fresh Start program cited in KW and the appellant’s daughter’s redesignation to another school are based in the same legislative approach, which denies the Board’s mandate to consider an appeal. I have to agree with that and comply with the Board’s mandate as it is set out in law. I do not find that, under these specific circumstances, i.e., in the absence of an actual or even presumed expulsion, this Board can or should assume jurisdiction for the matter.
order
36For all of the above reasons, I find that the Board does not have jurisdiction to consider the matter since the student was not expelled. Therefore, the appeal must be denied.
CONFIDENTIALITY ORDER
37Pursuant 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.
Dated at Toronto, June 13, 2022.
Eva Nichols
Eva Nichols
Member