NH, JL and AG v. Ottawa-Carleton District School Board, 2022 CFSRB 6

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

NH, JL and AG Appellants

-and-

Ottawa-Carleton District School Board. Respondent

DECISION

Adjudicator: Eva Nichols Date: February 04, 2022 File Nos.: SS22-0002, SS22-0003 Citation: 2022 CFSRB 6 Indexed As: NH, JL and AG v Ottawa-Carleton District School Board (Education Act s.311.7)

APPEARANCES

NH, JL, AG, Appellants Jane Stewart, Counsel

Ottawa-Carleton District School Board, Respondent Richard Sinclair, Counsel

Introduction

1These are three joined Appeals filed under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended, (the “Act”).

2Since the three Appeals all make the same allegations and the three Appellants are all represented by the same counsel, the Child and Family Services Review Board (“the Board”) decided to process the Appeals together.

3The Appeals relate to the decision of the Respondent school board to allegedly “effectively” expel the three students from the same school that they were all attending and where the events that resulted in their suspension occurred. The appellants state that there is no actual expulsion decision by the Respondent. Instead, the three students were initially suspended, pending an expulsion. Following the decision that the students would not be expelled, the Respondent issued a “safe schools transfer” to the three students, which meant that they were relocated to three different secondary schools within the school board. The students were informed that they cannot return to their original school for the balance of their secondary school education.

4Since there was no expulsion decision made by the Respondent, the Respondent alleges that the Board does not have the jurisdiction to consider the Appeals.

5The Appellants disagree and state 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 jurisdiction to consider the matter.

6Further, since the time for the appeal of an expulsion, as set out in the Act, has expired, the Appellants asked me to assume jurisdiction, cancel the respondents’ school transfer decision and reinstate the three students in their previous school immediately and without any further procedural steps.

For 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;

1. Using a weapon to cause or to threaten bodily harm to another person;

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

3. Committing sexual assault;

4. Trafficking in weapons or in illegal drugs;

5. Committing robbery;

6. 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.

Ontario Regulation 472/07

7This 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.

8The Regulation sets out the Board’s jurisdiction, mandate and the timelines for its actions and decisions.

9It is important to note that the Regulation does not 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 a safe schools transfer in accordance with Policy and Program Memorandum 145 (“Progressive Discipline and Promoting Positive Student Behaviour”), does the Board have any jurisdiction to hear an appeal of that decision.

background

10The appellants described very briefly that the three students had been involved in a “verbal altercation which led to a physical altercation” with some other students. The details of the events were not included in the Appeal Form. At the hearing, since it is a de novo proceeding, the details of the so-called altercation were not cited.

11The respondents described the events in their submissions as “physical assaults that caused injury to at least one other student, such that that student required medical treatment”.

12Apparently, the three students were suspended immediately by the principal, pending an investigation and a potential expulsion. Subsequently, approximately three weeks later, the students were informed that their suspension was reduced to 16 days from the original 20 days, but that they could no longer attend their previous school. In other words, they were subject to a safe schools transfer, in accordance with the school board’s policy and procedure for student suspensions and expulsions. Further, that for the balance of their secondary school education they could not return to the school from which they have been relocated. What this meant was that they had been administratively transferred to other schools, in accordance with the school board’s relevant policies.

13The suspensions were apparently appealed by the parents of the students, but at the time of the Hearing by the Board, there had been no appeal hearings held or scheduled. Based on the parties’ submissions, the suspension appeal hearings have been adjourned, pending the outcome of this jurisdictional hearing. It was not entirely clear from the parties’ submissions whether an appeal hearing by the school trustees was pending or not, and if so, what the timing of such a hearing might be.

14Further, the appellants stated at the hearing that the time for such an appeal had in fact passed and that, therefore, the only appropriate next step is for the Board to assume jurisdiction immediately. Further, that given the length of time that has elapsed, the Board should quash the alleged expulsion without a hearing of the merits of the case; should to reinstate the students at their former school; and should expunge all records related to these events from the students’ Ontario Student Records.

15The respondents countered these requests by focusing on the fact that the Board in fact has no jurisdiction to take such steps, since the students had not been expelled.

analysis

16Where 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.

17An 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.

18Following 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.

19In 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 assume jurisdiction, even if there is no actual expulsion decision made by the school board.

20That is not the case here. These students have not been expelled. The students have also not been excluded or denied access to an educational program. I considered carefully the appellants’ counsel’s submissions that exclusion, such as the process contemplated by section 265(1)(m) of the Act, allows for an appeal to the trustees of the school board, even though such exclusion is not the same as an expulsion. However, in this instance the students were not expelled nor were they excluded.

21I note the respondents’ statement that, these students were not in fact excluded at any time. They were suspended, and then were directly and administratively transferred to other schools. Therefore, the reference to section 265(1)(m) of the Act is not relevant or appropriate.

22Counsel for the respondent acknowledged that there had not yet been an opportunity for the students and their parents to appeal the suspension to the school board trustees. Such an appeal is mandated by the school board’s Procedure PR 512.SCO and did not occur in this instance. Counsel stressed that while that omission may be deemed to be a denial of procedural fairness, such denial does not give the Board the right to assume jurisdiction.

23While I very carefully considered the submissions of the appellants’ counsel about the matter and her submissions that the school board’s policies relating to safe schools as well as its policies and procedures on student suspensions and expulsions were inappropriate and contravene the Act, I find that I cannot accept these arguments in this case.

24I note, for example, that in PPM 145, the Ministry of Education mandates school transfers related to school safety. The process adopted by the respondent to transfer the three students to different schools relies on this document and its description of the process. It is important to note that this document 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 accept that the transfer of the three students in this case resulted from this recommendation.

25In the Divisional Court’s Decision of KW v. Toronto Catholic District School Board 2018 ONSC 2794, a Decision cited by both parties, the Court confirmed that a school board’s discipline policy can include an involuntary transfer of a student to another school.

26While I note that counsel for the appellants argued that the Fresh Start program that the above cited Decision focussed upon is different from the transfer program that the respondent school board utilizes, I do not find that the differentiation cited by counsel is directly relevant. I also note that the Court 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 that.

27If it is determined that the suspension is not going to escalate to an expulsion, this Board does not have the jurisdiction to hear an appeal. In the current case, there was no expulsion hearing by the trustees of the school board and no decision was made, in accordance with the legislation, that the students will be or should be expelled.

28The respondents argued that in this case there was and is no expulsion. The students were suspended, and subsequently were transferred to other schools. Counsel stated that if in fact the lack of an appeal of the suspensions amounted to “procedural unfairness” towards the applicants, that did not rise to the level of giving the Board jurisdiction. Further, any such alleged procedural unfairness may be a potential ground for seeking judicial review of the process, but it is not an appropriate ground to give the Board jurisdiction to either hear or overturn without a hearing the school board’s transfer decision.

29I have to agree. I do not find that under these specific circumstances, i.e., in the absence of an actual or even presumed expulsion, the Board can or should assume jurisdiction for the matter.

30Further, I find that the appellants’ request that the students be returned to their former school without a hearing by the Board and without considering the facts of the matter is entirely outside this Board’s legislated mandate.

order

31For all of the above reasons, I find that the Board does not have the jurisdiction to consider the matter since the students were not expelled. Therefore, the Board makes no order on the merits of these appeals.

confidentiality order

32Pursuant 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.