JC v. Provincial and Demonstration Schools Branch, 2023 CFSRB 22

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JC

Appellant

-and-

Provincial and Demonstration Schools Branch

Respondent

DECISION

Adjudicator: Catherine Bickley Date: March 13, 2023 Citation: 2023 CFSRB 22 Indexed As: JC v Provincial and Demonstration Schools Branch (Education Act s.311.7)

WRITTEN SUBMISSIONS

JC, Applicant Nicole Biros-Bolton, Counsel

Provincial and Demonstration Branch, Respondent Bruce Ellis, Counsel

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”). The Appellant is appealing the permanent dismissal of her child (“the Student”) from a school for the Deaf (“the School”) operated by the Provincial and Demonstrations Schools Branch of the Ministry of Education (“PDSB”).

2This decision explains why the CFSRB is dismissing the Application.

background

3The Student started at the School as a kindergarten student. At the time of his dismissal, he had been in residence at the School for more than ten years.

4On October 17, 2022, the PDSB Superintendent of Education recommended the Student’s permanent dismissal from the School.

5The PDSB Executive Director then held a written hearing to determine whether the Student should be permanently dismissed. The Executive Director considered written submissions from the Superintendent and from the Appellant.

6In a decision dated November 7, 2022, the Executive Director concluded:

It is my view that [the Student] acted in a manner injurious to the moral tone of the school and furthermore I believe that his return to [the School] would impact the physical or mental well-being of others.

7The Executive Director noted that the Student “requires an ASL learning environment” and directed that the Student have the opportunity to attend a different school for the Deaf as a day student with daily transportation provided by the PDSB. That school is a significant distance from the Student’s home.

8The Appellant is asking the CFSRB to overturn the Executive Director’s decision and reinstate the Student to the School.

9In addition to the Appeal to the CFSRB, the Appellant has filed an application for judicial review which seeks to quash and set aside the decision “to permanently expel [the Student] from [the School]” and seeks an order that he can return to the School and its residence or attend an alternative school for the Deaf where he can reside. In the alternative, the judicial review application seeks remittal to the CFSRB for a hearing.

analysis

10This case involves the permanent dismissal of a student by the Executive Director under section 19(3) of R.R.O.1990 Regulation 296 (“Ontario Schools for the Blind and Deaf”) (“Regulation 296”), a regulation under the Education Act, SO 2017, c.14, Sched.1 (the “Act”).

11The CFSRB’s jurisdiction to hear expulsion appeals comes from s.311.7 of the Act. The key question before me, therefore, is whether s.311.7 of the Act covers permanent dismissals of students from PDSB schools or whether such students are restricted to the process under Regulation 296.

12The Respondent submits that appeals under s.311.7 of the Act are “limited to appeals of expulsion decisions made by ‘boards’ as defined in the Education Act.” It further submits that “board” cannot be read to include a permanent dismissal decision under Regulation 296. In response, the Appellant submits that a purposive interpretation of the Act requires that students at PDSB schools have access to appeal rights under section 311.7 of the Act.

Principles of statutory interpretation

13The Appellant submits that the modern approach to statutory interpretation is purposive. She describes the purposive approach as “based on the principle that statutory interpretation is not an end, but a means to give effect to the legislation’s purpose.”

14The core of the Appellant’s argument is:

It could not have been the intent of the law makers to create a system wherein the most vulnerable would not have access to this Tribunal, a much more expedient, accessible and affordable process than bringing a complex application for Judicial Review, which is only available in narrow circumstances. All students, regardless of disability, have the right to a fair and equal education, and this includes the right to participate in any appeal process that may be available to them concerning their ability to attend school.

15The Appellant relies on the Northwest Territory Court of Appeal’s discussion of Supreme Court of Canada jurisprudence in Yellowknife Denominational District Education Authority v. Euchner, 2008 NWTCA 13 for the principle that courts are to prefer interpretations that tend to promote principles found in the Canadian Charter of Rights and Freedoms (“the Charter”) over interpretations that do not.

16The Supreme Court of Canada has made it clear, however, that a Charter analysis is used as an interpretive aid only when there is ambiguity, explaining, at para 12 of R. v. Clarke, 2014 SCC 28:

The absence of ambiguity also precludes the application of the interpretive assistance of Charter values, which only play a role if there is genuine ambiguity as to the meaning of a provision (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, and R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554). If the statute is unambiguous, the court must give effect to the clearly expressed legislative intent.

17As discussed below, there is no ambiguity in the definition of “board” in the Act.

The Act’s definition of “board”

18In subsection 1(1) of the Act, “board” is defined to mean “a district school board or a school authority.”

19The Act further defines “district school board” and “school authority.” Neither the definition of “district school board” nor the definition of “school authority” encompasses a school operated by the PDSB.

20In some instances, the Act provides for the inclusion of non board entities in the Act’s definition of “board” for specific purposes. For example, sections 13.1(3) and 267(1) of the Act provide that for some purposes certain non board entities shall be considered boards.

Conclusion

21There is no evidence before me regarding legislative intent other than the plain wording of the statute. Regulation 296 predates the designation of the CFSRB as the tribunal with jurisdiction to hear appeals from students expelled by a school board. It was open to the legislature to provide the CFSRB with jurisdiction over permanent dismissals of students from schools operated by the PDSB. It did not do so

22I conclude that the appeal rights under section 311.7 of the Act are only applicable to expulsion decisions made by boards. I find that there is no ambiguity in the definition of “board” in the Act. Further, the Act is specific in instances where the legislature intends non-board entities to be considered boards. In the absence of ambiguity, it would be inappropriate to resort to a Charter analysis to expand the definition of “board” or the appeal rights under section 311.7 of the Act to include students at schools operated by the PDSB.

23The Appellant also argues that an express exclusion or the offer of an alternative appeal process is required “to displace the appeal procedure in the [Act].” The difficulty with this argument is that there is an alternative appeal process, the process set out in Regulation 296. While that process may not be as robust as an appeal to the CFSRB, it is a process that predates the inclusion of section 311.7 in the Act and was not displaced by section 311.7.

24For all these reasons, I conclude that a student permanently dismissed from a school operated by the PDSB cannot appeal the dismissal to the CFSRB. In other words, the CFSRB lacks jurisdiction to review such a dismissal. Accordingly, the Appeal must be dismissed.

order

25The Appeal is dismissed.

confidentiality order

26Pursuant 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.