LS v. Niagara Catholic District School Board, 2024 CFSRB 37

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LS

Appellant

-and-

Niagara Catholic District School Board

Respondent

DECISION

Adjudicator: Tamara Jordan

Date: April 05, 2024

Citation: 2024 CFSRB 37

Indexed As: LS v Niagara Catholic District School Board (Education Act s.311.7)

APPEARANCES

LS, Appellant

Self-represented

Niagara Catholic District School Board, Respondent

Baktash Waseil, Counsel

OVERVIEW

1This is an Appeal to the Child and Family Services Review Board (“CFSRB”) under section 311.7 of the Education Act, R.S.O. 1990, c. E.2 (the “Act”), of the decision of the Niagara Catholic District School Board (“School Board”) to expel a 14-year old student (“Pupil”) from all schools of the School Board.

2The Pupil was attending grade nine at a secondary school (“School”) within the School Board at the time of his expulsion.

3The Appellant is the Pupil’s mother. The Appellant sought to have the School Board’s December 5, 2023 decision to expel the Pupil overturned and have the Pupil return to the School. The Appellant’s position is that the School Board did not consider all relevant factors in its decision to expel the Pupil, including the impact of the expulsion on the Pupil’s education and needs, as well as other circumstances surrounding the expulsion.

4It is the School Board’s position that the expulsion decision should be upheld. The School Board submits that the Pupil’s possession and use of two knives at the School and on a School bus, and his behaviour surrounding the use of the knives warrant expulsion. The School Board submits that there were no mitigating factors present to justify a decision other than to expel the Pupil from all schools.

5The CFSRB heard the Appeal on March 7 and 8, 2024.

Decision

6On March 14, 2024, the CFSRB issued the following Order:

3The CFSRB confirms the School Board’s decision to expel the Pupil from all schools of the School Board.

4Reasons for the Order will follow in a written decision within 30 days of the completion of the hearing, and by no later than April 8, 2024.

7Below are the reasons for the CFSRB’s Decision.

Background

8Prior to starting grade nine at the School in September 2023, the Pupil had previously attended an elementary school that was part of another school board (the “Elementary School”).

9On October 25, 2023, a parent of another child at the School contacted School Vice-Principal Randy Pruyn (“VP Pruyn”) with concerns related to the Pupil’s behaviour on that day. The parent alleged that the Pupil had sworn at and hit their child (“Student A”) on the head, had an open knife on a School bus transporting students home from the School, and was proceeding to the Elementary School with a knife in his possession.

10Between October 25 and October 27, 2023, VP Pruyn and School Vice-Principal Sam Gualtieri (“VP Gualtieri”) investigated allegations surrounding the Pupil’s possession and use of two knives at School and on the School bus. As part of their investigation, they interviewed six students, two school administrators and one parent. VP Pruyn and VP Gualtieri also met with the Appellant and Pupil on October 26, 2023.

11Although the Principal was away from the School during the beginning of the investigation and delegated certain duties to his Vice-Principals, the Principal also interviewed Student A and their parent in November 2023 and spoke with other students and staff prior to recommending the Pupil be expelled.

12On October 27, 2023, in a letter to the Appellant, the School Principal (“Principal”) formally issued a 20-day suspension to the Pupil for “possessing a weapon, including possessing a firearm”.

13On October 31, 2023, a Community Threat Assessment was conducted as initiated by the School Board. After this assessment, the Pupil engaged in a therapeutic program between November 2023 and February 2024.

14On November 15, 2023, in a letter to the Appellant, the Principal informed the Appellant that he would be recommending to the School Board’s Disciplinary Hearing Committee that the Pupil be expelled from all schools of the School Board.

15On November 23, 2023, the School Board held an expulsion hearing and confirmed the recommendation of the Principal. On December 5, 2023, the School Board provided the Appellant with its written decision to expel the Pupil from all schools of the School Board. In its decision, the School Board described the infraction as “possession of a weapon” and identified the alternate program site at which the Pupil would complete his studies (“Alternate Program”).

ISSUES

16The issues central to this Appeal are as follows:

1. What activities led to the Pupil’s suspension?

2. Are there any factors in section 2 of Ontario Regulation 472/07 that mitigate against the decision to expel the Pupil?

3. Are there any factors in section 3 of Ontario Regulation 472/07 that mitigate the seriousness of the activities for which the Pupil was expelled?

analysis

17This Appeal requires me to conduct a new hearing. In doing so, I considered the witness testimony, documents and things (i.e., audio and video recordings and a photograph) accepted into evidence at the hearing.

18Four witnesses testified at the hearing, the Appellant and three individuals employed by the Respondent School Board: the Principal, VP Pruyn and Superintendent Dominic Massi (“Superintendent Massi”). The Pupil did not participate or provide a statement in this Appeal.

19There was a significant amount of hearsay offered by both parties, although more so by the Respondent, regarding the relevant events surrounding the expulsion. In this decision, I was required to make several findings based on corroborated or uncontradicted hearsay statements and in the absence of direct evidence of the Pupil’s perspective of several facts. All of my findings below are made on the balance of probabilities (i.e., whether it was more likely than not that something occurred).

1. The Pupil Possessed Weapons at School and on a School Bus that Impacted on the School Climate

20Under section 310(1) of the Act, a Principal shall suspend a pupil if they believe that the pupil has engaged in any one of several activities listed in that subsection, at school or a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate. The list of activities includes, at subsection 310(1)1, “possessing a weapon, including possessing a firearm”.

21The School Board’s Code of Conduct Policy sets out expectations related to student behaviours. As part of that policy, members of the school community must not “be in possession of any weapon, including firearms”. The School Board’s Student Expulsion Policy sets out that “possessing a weapon, including possessing a firearm” while at school or a school-related activity or event where engaging in the activity will have an impact on the school climate is one of several infractions that may be grounds for expulsion and is considered a “violent incident”.

22The Principal testified that during an assembly for all grade nine students at the School on September 6, 2023, he reviewed the School Board’s Code of Conduct and specifically explained the “non-negotiable” prohibition on possessing weapons on school property and in other activities. Student attendance records entered into evidence at the hearing showed that the Pupil was in school on the day of the assembly.

23VP Pruyn testified that after Student A’s parent called him on the afternoon of October 25, 2023 about the Pupil possessing an open knife on the School bus and having another knife, he emailed and left a voice mail for the Appellant. In his voicemail, VP Pruyn asked the Appellant and Pupil to attend a meeting on the morning of October 26, 2023 and to bring both knives to the meeting. The Appellant replied to VP Pruyn’s email later that evening and confirmed she would attend the meeting on October 26, 2023.

24On October 26, 2023, the Pupil and the Appellant attended the meeting with VP Pruyn and VP Gualtieri and the Appellant surrendered one of the Pupil’s two knives. VP Pruyn testified that when VP Gualtieri asked about the whereabouts of the other knife, the Pupil explained that he did not have it as he gave it to a friend who attended another secondary school (not part of the School Board) on the evening of October 25, 2023. Within an hour of the meeting on October 26, 2023, VP Gualitieri retrieved the other knife from the secondary school where the Pupil’s friend had taken it.

25Photo and video evidence of both knives was admitted into evidence at the hearing. The knives were about the same size, each with a base designed for gripping with one hand and with a blade of about the same size that could be folded into the base. These were not small, multi-tool pocket knives but instead appeared like larger steak knives in size. The knife obtained by VP Gualtieri had a mechanism on the handle that when pressed makes a clicking sound and allows its curved blade to spring open fully (“Knife A”). Knife A was colourful with a pink base and a light brown overlay including images of two people in Indigenous regalia. The knife surrendered to the Vice-Principals on October 26, 2023 was also multi-coloured with leaves on it (“Knife B”). Knife B required its straighter blade to be pulled out slightly before it could be flicked into full position.

26VP Pruyn testified and provided a witness statement related to several interviews he held, along with VP Gualtieri, with witnesses to the Pupil’s possession and use of two knives at the School and on the School bus. The interviews conducted on October 25 and 26, 2023 included the following information:

• Student A described that the Pupil swore at them (i.e., told them to “f… off” and “shut up”) during a football game at the School on October 25, 2023 and then later hit them on the head and waved a knife “the size of a steak knife” at them while he passed Student A and boarded the School bus. Student A informed their parent about the Pupil’s actions and that they overheard another student say that the Pupil had two knives. Student A’s parent thereafter contacted VP Pruyn and reported the behaviour of the Pupil and concerns that the Pupil would also have a knife with him when he left the bus. Student A also informed VP Pruyn that they felt intimidated by the Pupil. Student A and their parent explained to VP Pruyn that Student A had attended the Elementary School with the Pupil, Student A felt bullied by the Pupil at the Elementary School, and worried that the Pupil did not like them. VP Pruyn explained that although the alleged history of the Pupil’s bullying of Student A at the Elementary School was not part of the investigation, Student A’s statements about this helped him to understand why Student A and their parent were worried about the Pupil’s possession of knives.

• Two other students (“Student C” and “Student D”) observed seeing the Pupil holding an open knife on the School bus. Students C and D stated that the Pupil was sitting behind them on the School bus and they turned around to see the Pupil with a knife after they heard a click. Student C stated that the knife was about 6 inches long. Student A described that they observed the Pupil holding the open knife approximately 10 centimeters from the face of Student C. Student A also stated that they observed the knife making a clicking sound when it opened.

• Another student, Student B, stated they saw the Pupil with a closed knife on the bus.

• Three students (Student A, Student D and “Student E”) stated that they heard the Pupil make comments on the School bus about the knives. Student A stated that they overheard the Pupil stating in response to a question as to why he had two knives, that if he “lost one” then he “had another one and could double-shank someone”. Student D stated that the Pupil asked Student C if they “liked the knife” or they thought “it was cool”. Student E did not see the knife but overheard the Pupil state that he needed it “ to stay strapped”.

• Two students (Student B and “Student F”) described that on the afternoon of October 24, 2023, the Pupil had displayed an open knife through the window of a fifth-period English class. Student B described that the Pupil was waving a knife in the window that appeared to be a “switchblade” and they felt very uneasy about the Pupil having it. Student F described the Pupil flashing a knife through the classroom window that was curved with multiple colours.

27Video surveillance footage shown at the hearing shows the Pupil holding up an object several times over a period of about four minutes to the door of the classroom that VP Pruyn testified coincided with the timing and location of the October 24, 2023 afternoon English class.

28VP Pruyn also testified about a conversation on October 26, 2023 that he and VP Gualtieri had with the principal of the Elementary School (“Elementary School Principal”). The Elementary School Principal stated that Student A’s parent had contacted her after Student A told their parent that the Pupil was on the way to an after-school event at the Elementary School and carrying a knife. The Elementary School Principal informed the Vice-Principals that when the Pupil arrived at the Elementary School, a teacher asked the Pupil whether he had a knife and the Pupil denied it.

29VP Pruyn testified that during the meeting with the Appellant and Pupil on October 26, 2023, the Pupil disclosed several facts related to the knives including the following:

• The Pupil had purchased two knives approximately 10 days prior and brought the knives to school “daily” since then.

• Knife B was one of the two knives he purchased.

• The knife that the Pupil had given to a student at another secondary school on the evening of October 25, 2023 was the same knife the Pupil had displayed in a classroom window at School and had with him on the School bus and later at the Elementary School.

30VP Pruyn also described that during the October 26, 2023 meeting when the Pupil was asked why he brought the knives to the School, the Pupil shrugged, stated he did not know, and he did not offer a clear response. VP Pruyn also stated that when VP Gualtieri asked the Pupil why he denied to the Elementary School Teacher that he had a knife, the Pupil stated that he did not think it was “any of their business”.

31The Pupil’s statements during the October 26, 2023 meeting as recounted by VP Pruyn, and during which the Appellant was present, went unchallenged by the Appellant during the hearing.

32The Principal testified that students, parents and staff (including one teacher with whom the Pupil had been interacting daily) communicated directly with him about their concerns about the Pupil having knives at School and for their and others’ safety.

33The Appellant confirmed that the Pupil admitted bringing two knives to School. The Appellant testified that during the meeting on October 26, 2023 with VP Pruyn and VP Gualtieri that the Pupil was given little opportunity to provide information about his use of the knives. The Appellant described that the Pupil felt anxious and wanted to share more information but was “unable to put together the full story at that time”. The Appellant also testified that the Pupil was “remorseful”, completed counselling further to the Community Threat Assessment, and was released from the program with “tools for moving forward’. The Appellant stated that the Pupil had no intent to harm and did not make direct threats to any individuals.

34There is no definition of “weapon” in the Act or the School Board Policies. The Appellant, the Principal, and VP Pruyn all referred to the knives as “weapons” at times during their testimony. The Appellant agreed under cross-examination that simple possession of the knives was prohibited as part of the School Board’s Code of Conduct.

35I make several findings on the basis of the admissions by the Pupil and the evidence of witnesses that were uncontradicted during the hearing. First, I find that the Pupil brought Knife A and Knife B to school on at least a few occasions, he opened and displayed Knife A several times in the window of the fifth-period English classroom on October 24, 2023, and he had both knives with him at School on October 25, 2023 before boarding the School bus.

36The Pupil surrendered Knife B to the Appellant then the Vice-Principals on October 26, 2023, and he admitted that the knife he provided to his friend at another secondary school was the other knife (Knife A) he had at School. The Pupil admitted he brought the knives “daily” to School after purchasing them 10 days prior, displayed Knife A in the window of a classroom on October 24, 2023 and had Knife A with him at School on October 25, 2023 when he boarded the School bus. The evidence of two students supported that he flashed a knife in the window of the English classroom on October 24, 2023. Although it is difficult to confirm by just watching the October 24, 2023 hallway surveillance video whether the object in the hand of the Pupil was a knife given the quality of the video, I find that the timing and actions of the Pupil in the four-minute video clip were consistent with the observations of the two students in the fifth-period English class, and the Pupil’s own admission that he displayed Knife A in the window of that classroom. I find therefore, that the object held by the Pupil in the video clip was Knife A.

37Second, I find that the Pupil had Knife A open on the School bus and that the activities on the School bus constituted “school-related activities” as contemplated under section 310(1) of the Act. The Pupil admitted to having Knife A on the School bus. Moreover, three students interviewed described seeing the Pupil with an open knife, including one student seeing the Pupil holding an open knife very close to the face of Student C.

38Third, I find that the Pupil made the statements on the School bus as alleged by Students A, D and E relating to Knife A and its use. The Appellant testified that the Pupil did not threaten anyone “directly”. The Appellant submitted that the students’ statements were hearsay and subject to inaccuracies but she did not deny or otherwise challenge the statements made by the Students. The Appellant did not offer any evidence from the Pupil in relation to these statements, as she had with other areas of evidence. There was no evidence presented that negated the credibility or reliability of the Students’ statements despite the hearsay nature of the evidence. For example, there was no evidence offered to suggest that the students had fabricated the statements or had reason to do so.

39I also find that the Pupil was in possession of “weapons” at School and on the School bus, and that his possession of Knife A and Knife B impacted upon the school climate, warranting a mandatory suspension under section 310(1)1 of the Act. I find that Knife A and Knife B were “weapons” for the purpose of interpretation under the Act and the School Board’s Policies given the size and nature of the knives and there was no reason provided for the Pupil having or needing the knives with him at School.

40I note that the Respondent led some evidence toward supporting a position that Knife A was a “prohibited weapon” under the Criminal Code, R.S.C., 1985, c.C-46 (“Criminal Code”). I make no finding whether Knife A constitutes a prohibited weapon under the Criminal Code. This would have required additional evidence related to the nature of the knife (through, for example, expert testimony), and it is not necessary to my finding that both knives constituted “weapons” in this Appeal.

41I also find that the Pupil’s possession of the weapons at School and on the School bus had an impact on the School climate. The evidence supports that the Pupil possessed, displayed and commented about the knives (i.e., needing two knives to “double shank someone” and needing a knife “to stay strapped”) in a way that made others, including students, parents and School staff feel “very uneasy”, unsafe or uncomfortable.

42I am further concerned that there was no evidence offered that demonstrated the Pupil’s understanding of how his behaviour with the knives created safety concerns for others at the School and in the broader community (i.e., at the Elementary School and another secondary school) and why he repeatedly contravened the School Board’s Code of Conduct only a few weeks after the Principal had reviewed the “no weapons” policies with all grade nine students.

43While the Appellant blamed the Vice-Principals for the inability of the Pupil to provide further explanations about his behaviour during the meeting on October 26, 2023, there was no evidence of any efforts made by the Pupil or the Appellant to provide further information to the School or School Board relating to the Pupil’s understanding and acknowledgement of events. The Appellant testified that the Pupil was “remorseful” and had completed a course of therapy related to the issues. However, she did not provide any information about any insight gained by the Pupil in that therapy, including what the Pupil may have learned about his possession and use of knives at the School and on the School bus and what he would do differently in the future.

44While infractions under section 310(1) of the Act are always serious enough for a suspension, they may not always be significant enough for a pupil’s expulsion from a school or an entire school board. In determining whether the Pupil’s expulsion was appropriate, and whether from the School only or all schools of the School Board, I must consider the “mitigating factors” and “other factors” listed in sections 2 and 3, respectively, of Ontario Regulation 472/07 (the “Regulation”).

2. There are No Factors under the [Regulation](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) that Mitigate the Decision to Expel the Pupil

45Under section 2 of the Regulation, I must consider whether the three factors set out under this section mitigate against the Pupil’s expulsion. I find that none of the three factors under section 2 are relevant and review each of these below.

Does the Pupil have the Ability to Control His Behaviour?

46The Principal testified that based on his interviews with teachers, his own interactions with the Pupil and information in the Pupil’s OSR, there was nothing that suggested that the Pupil could not control his behaviour.

47The Appellant testified that the Pupil had issues with impulse control, and prior to the Pupil’s suspension, had changes in medication that impacted on his ability to focus and made him feel “weird” and “scattered”. The Appellant also stated that the Pupil had been distraught about the health of his grandfather before the Pupil’s suspension. However, there was no evidence presented that supports that any one of these issues, or even a combination of these circumstances, led to the Pupil being unable to control his behaviour in bringing knives to School over several days, displaying Knife A in a classroom window multiple times, and having Knife A open and very near the face of a student on the School bus.

48I find that there was insufficient evidence presented to demonstrate that the Pupil could not control his behaviour related to his possession and use of the knives.

Does the Pupil have the Ability to Understand the Foreseeable Consequences of His Behaviour?

49Under cross-examination, when the Appellant was asked whether the Pupil “understands right from wrong”, she stated “sure. The Appellant also noted that the Pupil made a “poor decision” in bringing the knives to School and was “remorseful”. The Appellant did not introduce any evidence to support that the Pupil did not understand consequences of his behaviour.

50During the playing of the surveillance video that captured the Pupil with Knife A in the School hallway outside the English classroom on October 24, 2023, the Principal pointed out that the Pupil would put Knife A in his pocket when a staff person and some students approached him in the hallway. The Principal also identified that the Pupil did a “shoulder check” when a staff member walked by the Pupil in the hallway outside the English classroom.

51As set out above, during the Pupil’s October 26, 2023 meeting with the Vice-Principals the Pupil explained that he denied to a teacher at the Elementary School that he had a knife as it was “none of their business”. The Pupil also provided Knife A to another student the night before he was to attend a meeting at the School although he had been asked, through correspondence with the Appellant, to bring in both knives.

52The Pupil’s concealment of Knife A when being approached by a School staff member in the hallway on October 24, 2023 and from a teacher at the Elementary School on October 25, 2023 supports that the Pupil knew that there was something wrong with having a knife on him at those times and there may be consequences for this. The Pupil’s provision of Knife A to a student at another high school the night before he was to bring both knives to a meeting at the School demonstrates a further attempt to conceal a weapon from others and avoid consequences of his behaviour.

53In these circumstances, I find that the Pupil had the ability to understand the foreseeable consequences of his behaviour.

Does the Pupil’s Continuing Presence in the School Create an Unacceptable Risk to the Safety of Others?

54As set out above, there was no evidence provided that demonstrated what, if any, insights the Pupil gained during the therapy and since his suspension.

55The Pupil brought two large knives to School on at least a few occasions. He opened and held a knife up repeatedly to a classroom window during an English class. He opened a knife on the School bus transporting several students and held it close to the face of another student. He made comments relating to the use of the knives that although may not have been not directed to a particular person, were significant enough to cause concern that he may be “strapped” with knives in the future and had two knives in case he needed to “double shank” someone.

56In the absence of understanding what the Pupil learned during therapy, how and why he would behave differently in the future, why he made the comments regarding the knives, whether he appreciates the seriousness of bringing weapons to a school and on a school bus, and how the knives could be used by him or others in a moment of impulsivity or conflict, I find that the Pupil’s continuing presence in the School remains an unacceptable risk to the safety of others.

57Having found that none of the factors in section 2 of the Regulation mitigate against the decision to expel the Pupil, I now consider the factors set out in section 3 of the Regulation.

3.There are No Factors under [Section 3](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) of the [Regulation](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) that Mitigate the Seriousness of the Activity for which the Pupil was Expelled

58Under section 3 of the Regulation, six additional factors must 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”. Below I consider each of the six factors.

The Pupil’s History

59The Pupil had only recently commenced secondary school. He had been at the School for just a few weeks prior to the knife incidents. There was no relevant history presented by the parties for consideration under this factor.

60I find that there are no relevant factors in the Pupil’s history that would mitigate the seriousness of the activities for which he was expelled.

Whether a Progressive Discipline Approach was used with the Pupil

61There was no progressive discipline used in relation to the knife incidents at the School. As set out above, under section 310(1)1 of the Act the Principal was mandated to suspend the Pupil for the possession of the knives, as “weapons”.

62Through his testimony and documents presented, the Principal described that the only other discipline of the Pupil of which he was aware was a few months earlier at the Pupil’s Elementary School. The Principal noted that in the Pupil’s OSR there was a record of the Pupil having been suspended from his Elementary School in May 2023 for making a “makeshift weapon” using classroom supplies. The Principal explained that he did not consider this as part of his recommendation for expulsion as it was the Pupil’s possession and use of the knives at the School and on the School bus that resulted in the Pupil’s suspension and ultimate expulsion by the School Board.

63Given the seriousness of the Pupil’s activities with the knives at the School and on the School bus and the lack of his demonstrated insight relating to this, I do not find that the absence of other progressive discipline approaches mitigates the seriousness of the Pupil’s activities.

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 Race, Ethnic Origin, Religion, Disability, Gender or Sexual Orientation or to any other Harassment

64VP Pruyn and the Principal testified that there was no indication during their investigations that there had been any bullying or harassment of the Pupil at the School.

65The Appellant stated the Pupil came home from School severely distraught in mid-October and stated that teachers were yelling at him, including in front of peers and that he was being distracted by other students. The Appellant described how the Pupil’s English teacher harshly interacted with the Pupil, including telling him to focus more, and stop being “immature”. On cross-examination, the Appellant stated that the Pupil had not reported any bullying or harassment aside from that by “the teacher”, and that the Appellant disclosed the teacher’s communications with the Pupil during the Community Threat Assessment.

66Email correspondence between the Appellant and the School shows that beginning in August 2023, the Appellant reached out to the School in an attempt to have an Individual Educational Plan (“IEP”) created for the Pupil, review the Pupil’s challenges and get supports in place. The Appellant informed the School that a psychiatrist had recommended a psychoeducational assessment and an IEP for the Pupil. The Appellant informed the School on September 14, 2023 that the Pupil struggles with understanding information, that they “don’t have a clear diagnosis”, and the Pupil has a difficult time sitting still.

67The Appellant testified that she informed two School staff members, including an educational resource teacher during a meeting on September 22, 2023 that the Pupil had been diagnosed with ADHD and that he struggled in class, was fidgety and could not understand some of the things he was being taught. The Appellant informed the resource teachers that she would be seeking a private, psychoeducational assessment for the Pupil. The Appellant did not provide the School with any evidence concerning any diagnoses for the Pupil.

68There was no evidence adduced to suggest that the information that the Appellant provided to the School’s resource team was communicated to the Pupil’s teachers, including the English teacher. While this may indicate some issues within the School relating to the timely dissemination and communication about a student’s needs, I find that there is insufficient evidence to support that the English teacher “harassed” the Pupil as contemplated by this factor under the Regulation. Further, I find that there was no evidence supporting any connection between the English teacher’s comments to the Pupil and the Pupil’s activities with the knives at School and on the School bus. Accordingly, I find that this factor did not mitigate against the seriousness of the Pupil’s activities.

How the Suspension or Expulsion would affect the Pupil’s Ongoing Education

69The Pupil was enrolled in four courses at the time of his suspension. Email correspondence prior to the suspension documented that the Pupil was struggling in Math, English and Religion. On October 4, 2023, the Pupil’s Math teacher provided the Appellant with resources for assistance with Math.

70VP Pruyn testified that he submitted an application for the Pupil to the Alternate Program and informed the Pupil’s School teachers of the Pupil’s suspension on the day the Pupil was suspended. The Principal testified that the Pupil continued his studies at the Alternate Program and that he directed teachers at the School to forward assignments and coordinate these with the Alternate Program teacher.

71Superintendent Massi described that the Alternate Program included a teacher, an educational resource teacher, an educational assistant, a child and youth worker, and access to a social worker on a referral basis. He explained how program materials were delivered through an online platform with flexible attendance and some small group settings depending on the cycle of students in the program. Superintendent Massi explained that although the School was the primary “driver” to provide program materials for Semester One, the Pupil was now into Semester Two and the Alternate Program and its staff would deliver the Semester Two program directly to the Pupil.

72The Appellant testified about several issues with the transition of the Pupil’s education at the School to the Alternate program, including related to transportation, challenges accessing the online platform, lack of communication from the School, and occasions where material from teachers at the School was not readily available for the Pupil to enable him to complete course work. The Appellant also described that the Pupil did not receive full-time or what she believed to be sufficient individualized instruction in the Alternate Program and he had difficulties completing work independently or on the School’s online platform in Semester One. The Appellant presented an audio recording of a meeting on January 26, 2024 held with three staff from the Alternate Program, including its resource teacher, principal and teacher, related to the issues with the Pupil’s transition to and learning in the Alternate Program. Although the audio clip was poor quality, having been admittedly recorded by the Appellant surreptitiously without the other participants’ consent and occasionally muffled, there were some segments of the audio clip that supported some of the Appellant’s concerns.

73The Pupil’s IEP sets out “areas of need” including “initiative”, “attention”, and “self-control”, and describes “accommodations” for instruction including “organization coaching” and “work sample on desk”.

74On cross-examination of the Appellant, she acknowledged that a tutor and resource teacher will be available to the Pupil for his Semester Two courses at the Alternate Program. The audio clip presented by the Appellant also supports that a full-time resource teacher and educational assistant will be available to the Pupil for Semester Two for individualized instruction and assistance, and in accordance with his IEP.

75The Principal stated that the Pupil earned three credits from Semester One in the Alternate Program and an “incomplete” in Math because he did not complete that entire course. The Pupil’s Ontario Student Transcript dated January 31, 2024 indicates that the Pupil obtained credits for three of the four courses he started in September 2023.

76The Principal explained that the Alternate Program will provide the Pupil with extended time to complete his math course while he continues with other courses in Semester Two. The Principal stated that he expects that the Pupil will obtain a full complement of credits by the end of the academic year. The Appellant did not challenge this testimony.

77I find that the Pupil’s transition from the School to the Alternate Program impacted upon the Pupil’s education in Semester One, there were challenges with the Pupil accessing and completing course material forwarded by the School, and the Pupil was not initially supported in the Alternate Program in a way that fully met his needs as set out in his IEP.

78However, ultimately, the Pupil did complete and pass three of his Semester One courses, including two in which he was struggling prior to his suspension.

79The Pupil was already struggling in his Math course prior to his suspension. The evidence supports that he will have access to a tutor and resource teacher to work toward completion of this course and his new Semester Two courses, and he is expected to obtain a full slate of credits by the end of his grade nine year. Other resources, including a child and youth worker, social worker and educational assistant are also available to the Pupil through the Alternate Program.

80I find that despite the challenges in the Pupil’s transition from the School to the Alternate Program, the evidence supports that the Pupil is on track to complete his grade nine courses in the Alternate Program, and with more supports in place to assist him in his education in the coming months. While I find that there may have been some initial impacts on the Pupil’s education during the transition from the School to the Alternate Program, I do not find on the evidence that there will be ongoing issues impacting the Pupil’s education that mitigate against the seriousness of the activities for which the Pupil was expelled.

The Age of the Pupil

81The Pupil was 14 years old and in the first weeks of grade nine at the School at the time of the expulsion.

82There was no evidence adduced by either party to suggest that the age of the Pupil had any mitigating effect.

Considerations In the Case of a Pupil for Whom an IEP has been Developed

83This factor requires the CFSRB to take into account three separate subfactors where an IEP has been developed for a pupil: 1) whether the behaviour was a manifestation of a disability identified in the pupil’s IEP; 2) whether appropriate individualized accommodation has been provided; and 3) whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct. Following my review of some additional information related to the Pupil’s IEP, I will address each of these subfactors.

84The Pupil did not have an IEP upon entry to the School in September 2023. The Appellant stated that despite not having an IEP, the Pupil had some supports in place in his Elementary School, including separate reading programs and speech therapy.

85As set out above, the Appellant advocated with the School to complete an IEP for the Pupil and informed the School that she would be seeking a private psychoeducational assessment for the Pupil on the recommendation of a doctor.

86A Kaufman Test of Education Achievement-3 (“KTEA-3”) was administered with the Pupil on September 28, 2023. The results of this test concluded that the “qualitative observations do not suggest a cognitive processing weakness”. Email correspondence from the resource teacher to the Appellant noted that there were “no specific recommendations regarding accommodations” arising from the KTEA-3. However, there were several areas noted in the KTEA-3 in which the Pupil tested in the “below average”, “low”, and “very low” ranges.

87On October 25, 2023, email correspondence shows that the resource teacher informed the Appellant that she was obtaining information from the Pupil’s teachers related to the Pupil’s strengths and weaknesses toward developing an IEP for the Pupil. She informed the Appellant that when the Pupil’s private psychoeducational results were available and after the School Board review the report, there will be additional recommendations for the Pupil.

88An IEP was completed for the Pupil on October 26, 2023. There was no learning disability identified in the IEP. The IEP notes that the Pupil was “not formally identified but requires special education program/services including modified/alternative learning expectations and/or accommodations”.

89The Appellant testified that she arranged for the Pupil to have a private psychoeducational assessment completed. A February 14, 2024 letter from the Pupil’s Doctor confirmed that that a psychoeducational assessment was completed in November 2023 and the Pupil was found to have met DMS-5 diagnoses for two learning disorders and ADHD. The Appellant testified that the Pupil’s Doctor’s letter and the diagnoses contained within it were not shared with the School or School Board prior to the exchange of documents for the hearing of this Appeal.

Whether the Pupil’s Behaviour Was a Manifestation of a Disability Identified in His IEP

90There was no disability identified in the Pupil’s IEP.

91Although the February 2024 letter from the Pupil’s doctor states that a psychoeducational assessment concluded some time in November 2023 identified that the Pupil has two specific learning disorders and ADHD, there was no evidence presented at the hearing to demonstrate a connection between these diagnoses and the Pupil’s behaviour in bringing weapons to the School and displaying them at the School and on the School bus.

92I find that the Pupil’s behaviour was not a manifestation of a disability identified in his IEP, or anytime afterward, and that this subfactor does not mitigate against the seriousness of the activities for which the Pupil was expelled.

Whether Individualized Accommodation Has Been Provided

93The IEP was completed on October 26, 2023. On October 27, 2023, the Pupil was formally suspended then expelled thereafter.

94This subfactor pertains to whether accommodations set out in the IEP that were made, or not made, by the School Board contributed to the Pupil’s behaviour (i.e., bringing weapons to School and displaying them at School and on the School bus).

95Given that there was no opportunity for the School to implement the accommodations in the IEP prior to the Pupil’s behaviour that led to the expulsion, this subfactor does not mitigate against the seriousness of the activities for which the Pupil was expelled.

Whether the Expulsion is Likely to Result in an Aggravating or Worsening of the Pupil’s Behaviour or Conduct

96There was no evidence presented to support that the expulsion was likely to result in an aggravating or worsening of the Pupil’s behaviour or conduct as contemplated by this subfactor. Accordingly, I do not find that this factor is relevant toward mitigating the seriousness of the activities for which the pupil has been expelled.

CONCLUSION

97Having found that the Pupil possessed weapons within the meaning of subsection 310(1)1 of the Act that had an impact on the school climate, the School was mandated to suspend the Pupil, with a possibility of expulsion.

98I considered the three mitigating factors under section 2 of the Regulation and found that none applied in this Appeal.

99I considered the six other factors under section 3 of the Regulation. While I had concerns about the impact of the expulsion on the Pupil’s initial education at the Alternate Program, it does not appear that the expulsion will affect the Pupil’s ongoing education as contemplated by the Regulation and I found that none of the other factors mitigated against the seriousness of the activities for which the pupil was expelled.

100For the reasons above, and further to the CFSRB’s Order dated March 14, 2024, the CFSRB confirms the expulsion of the Pupil from all schools of the School Board.

101I make one final note and a recommendation related to this Appeal.

102First, I note that the Principal and Superintendent Massi testified that they did not expect the Pupil to continue his education in the current Alternate Program on a long-term basis. During his testimony, Superintendent Massi outlined the steps the Appellant could take to seek the Pupil’s re-entry to the School Board and directed the Appellant to review the related website links of the School Board and the Ministry of Education. In the event that the Appellant initiates these steps in the future, the Pupil has satisfied the objectives required for the successful completion of a program for expelled pupils, and the Pupil has not engaged in any further behaviour that would necessitate disciplinary action, it appears that the Pupil may be welcomed back to the School, or in the alternative, to another school in the School Board, for the next academic year.

103Second, I recommend that the Appellant share with the School Board and the Alternate Program all of the Pupil’s relevant diagnoses and recommendations arising from the completion of the November 2023 private psychoeducational assessment so that an updated IEP and related recommendations for supporting the Pupil can be made and implemented as soon as possible to best support the Pupil moving forward.

confidentiality order

104Pursuant 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.