M. v. Toronto District School Board, 2008 CFSRB 105

CHILD AND FAMILY SERVICES REVIEW BOARD

M.

v.

Toronto District School Board

REASONS FOR DECISION ON MERITS

Date: December 30, 2008

Citation: 2008 CFSRB 105

Indexed as: M. v. Toronto District School Board (EA s. 311.7)

1This is an appeal by Ms. M. of a decision of the Toronto District School Board (the “TDSB”) to expel her son C.O., born April […], 1993, from all schools of the TDSB, pursuant to section 311.7 of the Education Act R.S.O. 1990, c. E.2 (the “Act”).

2The Child and Family Services Review Board (the “Board”) must decide whether or not C.O. (the “pupil”) should be expelled and, if so, whether or not the expulsion should be from his school or all schools.

3The position of Ms. M. (the “Applicant”) is that her son should not be expelled or alternatively, that he should be expelled only from his school. The position of the TDSB is that the pupil should be expelled from all schools.

4The Board heard the appeal on November 28, 2008.

5The Board has decided that the pupil should not be expelled because the incident is not included in section 310, the legislative provision that governs the expulsion process under the Act. For the reasons that follow, the Board quashes the expulsion and reinstates the pupil to his school.

BACKGROUND

6The pupil was in grade 9 at [“the school”] at the time of the incident.

7On May […], 2008, the pupil was rude to his teacher and swore at his teacher in front of the class. He was told to go to the office, but either did not go or wasn’t seen. The next day, May […], 2008, the Vice Principal asked the Hall Monitor (“Monitor”) to look for the pupil and ask him to come to the office. The Monitor saw the pupil in the cafeteria and asked him to go to the office when he was done with his meal. The pupil left the cafeteria and went to an area not far from the office where students ate. The Monitor followed him and again made his request. The pupil was defiant and rude to the Monitor. The pupil threw some rice in the Monitor’s face and it stuck to his glasses. The Vice Principal arrived and saw the pupil about to throw rice at the Monitor again. The Vice Principal then stood between the Monitor and the pupil. The Vice Principal admits that he placed his hands on the pupil’s to stop him from throwing more food at the Monitor. The pupil then pushed the Vice Principal’s hands away, pushing him in the chest with sufficient force that it caused the Vice Principal to step back. The Vice Principal then asked the pupil to leave and he and the Monitor watched as the pupil left the school. The Vice Principal called the police because he had been assaulted and felt threatened.

8The Principal conducted an investigation which did not include speaking to student witnesses because she says they refused to cooperate. The Principal looked at the pupil’s history and the incident and recommended that he be expelled from all schools of the TDSB. The TDSB held an expulsion hearing on September […], 2008 in which it expelled the pupil from all of its schools.

9The pupil is a special needs pupil with a history of discipline, some of which is for fights. The pupil had an Individual Education Plan (‘IEP”) that was in place, but never had an Identification Placement and Review Committee (IPRC) to identify him formally as a special needs student and determine the appropriate school placement. Two of the problems identified in the IEP were low cognitive functioning and distractibility. The Principal agreed that the pupil’s frustration was linked to his low functioning in school and contributed to his acting out. The Principal felt that the pupil should be at a technical school such as [X] where he could get more resources. Some extra resources were offered to him at [ ], his home school. The TDSB felt that the pupil had more access to better resources at its program for expelled students. The pupil was assessed in 2004 and the school did not request a fresh assessment.

ANALYSIS

10The expulsion provisions under the Education Act are contained, in part, under sections 310 and 311. Section 310(1) states as follows:

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 to a minor;

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.

11Subsection 311.1(1) states that:

When a pupil is suspended under section 310, the Principal shall conduct an investigation to determine whether to recommend to the board that the pupil be expelled.

12In order to expel a student under section 310, the infraction must be specifically enumerated under subsections (1) to (7) or included in a school board policy as an incident requiring a mandatory suspension under subsection (8). It is clear that when reviewing the list of infractions, expulsion is warranted for only the most serious incidents.

13The Principal testified that she recommended that the pupil be expelled because the assault, when taken in context, amounted to conduct injurious to the moral tone of the school or to the physical or mental well being of others. She relied on the Code of Conduct for Student Behaviour as school board policy in this regard. The Board notes that the Code of Conduct relied upon by the Principal was only valid until January […], 2008, a date prior to the incident.

14Assuming that the Code of Conduct filed by the TDSB is still valid policy, a physical assault that does not require treatment by a medical practitioner and “other” defined in the policy as “conduct injurious to the moral tone of the school” are grounds for discretionary not mandatory suspensions. Thus, a simple assault under the school board’s policy does not fit within the requirements of section 310(8). While the school board had the authority to include simple assault in its list of mandatory suspensions, it did not do so.

15Counsel for the Applicant argued that there may not have been an assault. He submitted that the pupil’s actions in pushing the Vice Principal may have been a reaction to having the Vice Principal place his hands on him. The Vice Principal agreed that it may have been a reaction.

16The question of whether the incident constitutes an assault does not have to be decided in this case. The issue for the Board to determine is whether the incident is covered under section 310. The Board finds that because the incident did not require medical treatment and is not included in the TDSB’s mandatory suspension policy, the Board must quash the expulsion of the pupil. Even if the incident had been included under section 310 (i.e. it was grounds for a mandatory suspension in the TDSB policy), the Board would not have confirmed the expulsion of the pupil because of the application of mitigating and other factors under Ontario Regulation 472/07.

17There are two central purposes of the expulsion provisions in the Act: (1) to impose discipline on a student when he or she engages in behaviour that is prohibited under the Act or under a school board’s policy, and (2) to keep other students and staff safe while at school. The “mitigating” and “other factors” set out in Ontario Regulation 472/07 provide a framework for assessing both the appropriateness of punishment, depending on the student’s circumstances or the context surrounding the incident, and the risk the student poses to the safety of others. It is important to bear the purposes of the expulsion provisions in mind because if the conduct at issue does not jeopardize safety or justify discipline, it is questionable whether a student should be expelled.

Mitigating Factors

18In the event the TDSB had included “assault” in its list of mandatory suspension infractions, the Board would then consider the mitigating and other factors set out in Ontario Regulation 472/07 in order to determine whether the pupil should be expelled in this case.

19Under section 2 of Ontario Regulation 472/07, the following mitigating factors must be taken into account:

1. The pupil does not have the ability to control his behaviour

2. The pupil does not have the ability to understand the foreseeable consequences of his behaviour, and

3. The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.

20The Board has taken these factors into account and finds that in the circumstances of this case, the third factor mitigates against expulsion. The Board finds that the pupil’s continued presence in the school does not create an unacceptable risk to the safety of any person. This is so because the evidence clearly indicates that when the pupil is frustrated, he leaves the environment which is causing him the frustration. When he is frustrated in class, the pupil’s pattern is to leave the classroom. On the day before the incident in question, the pupil did not show up at the office and appears to have left the school, in frustration. On the day of the incident, the pupil tried to walk away from the Monitor who followed him to the area near the office. When asked to leave the school following the incident, the pupil left immediately without further confrontation.

21While the Vice Principal felt threatened by the pupil pushing him, the pupil did not actively seek out the Vice Principal to assault him. Although he allegedly hovered over others and has been involved in physical altercations or fights with students, there was no evidence that the pupil had harmed anyone at school. The Monitor testified that he felt comfortable working with the pupil and was not threatened by him. The Monitor is an ongoing presence in the school.

22The Board is satisfied that the pupil’s presence in the school does not create an unacceptable risk to the safety of any person. While the pupil may be difficult to manage, the Board believes that if the appropriate accommodations are put in place to address the pupil’s frustrations in education, his behaviour will improve.

Other Factors

23Section 3 of Ontario Regulation 472/07 sets out additional factors that, if applicable, reduce the seriousness of the activity for which the pupil may be or is being suspended or expelled. Of the additional factors, the Board finds the following to be relevant:

• The pupil’s history

• 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 the appropriate individualized accommodation has been provided and whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct.

• How the expulsion will affect the pupil’s ongoing education

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

The Pupil’s History, the IEP and the Effect of Expulsion on Education

24The pupil’s history, including his special needs and the response to his special needs while at [his school], are relevant. The Board finds that the pupil’s history, the factors relating to his IEP and the impact of an expulsion on the pupil’s ongoing education are factors that reduce the seriousness of the incident. Because these are all so closely linked to the pupil’s special needs, the Board has addressed them together.

25The pupil was assessed by the psychology department of the TDSB as having low abilities overall in April of 2004. While the pupil was not formally identified, he had an IEP for 2007-2008 which placed him in a regular class with withdrawal supports. His IEP identified his areas of need as: distractibility, math facts/math reasoning; written expression; fine motor skills; speed and quality of writing; writing conventions; quality of written output and visual-motor communication skills.

Behaviours As a Manifestation of Disability

26As he entered grade 9, a difficult transition year, the pupil’s frustration level appears to have increased, as did his behavioural issues. The Principal testified that the pupil was “struggling academically with everything” and that he had “huge issues”. She testified that school, including the transition to grade 9, was extremely difficult and frustrating for the pupil, who was operating approximately three academic years behind grade level. She testified that the pupil’s behaviour was a result of his frustration. Further, when he got frustrated, he would “leave”. She stated that he was unable to do his work and wandered. The Vice Principal spoke of the pupil’s “inability” to settle down and take direction and of his continuous disruption of the class.

27The Board is satisfied that the pupil’s behaviours, including in relation to the incident, were a manifestation of his disability as described in his IEP. In swearing at teachers and leaving the classroom to walk the halls, the pupil was expressing his frustration and his need for help. His reaction to his teacher the day prior to the incident and his unwillingness to go to the office were part of this pattern of behaviour. His reaction to the Monitor and his reaction to the Vice Principal who placed his hands on him are also part of the continuum of frustration.

Accommodations

28In terms of accommodation and responses to the pupil’s needs, the Board is not satisfied that appropriate accommodations were put in place. While some strategies and resources were put in place, the school did not intervene sufficiently to identify and implement supports. The pupil’s assessment was done in 2004. While a new assessment could, according to the Principal, have been done after three years, she did not request a new assessment. This assessment could have examined the possibility of a learning disability, attentional difficulties or otherwise shed some light on why the pupil was struggling. The Vice Principal testified that whether or not the pupil had attention deficit disorder “would need further investigation” and that he did not recall discussing this possibility or further testing.

29The Principal did not request an IPRC. Her view was that in order to have an IPRC for behavioural issues, the school had to keep a six month behavioural log. The school started keeping a log in December 2007 or January of 2008. The Principal testified that a special needs student could not get an IPRC any sooner than this. Her evidence appeared to be that because he wasn’t in the “mild intellectually delayed” range, he could not have an IPRC. However, as noted, his assessment was not up to date.

30Under section 14 of Regulation 181/98 to the Act (which governs the IPRC process), a principal may request an IPRC at any time. There is no restriction in terms of timing, type or level of potential exceptionality. The IPRC process is also a means of accessing an assessment for pupils. Subsection 15(1) of the Regulation states: a “committee that has received a referral under subsection 14 shall obtain and consider an educational assessment of the pupil”.

31The school did put in place a “plan” for dealing with the pupil’s behaviour, in late October, 2007. This included allowing the pupil some time to settle into class and “reduce his excitability level” before placing expectations on him. The plan includes a reference to “zero tolerance” for inappropriate physical behaviours such as play fighting, “smacking on the head” pushing and hovering over a person. If these behaviours occurred, the Monitor would be called and the pupil sent to the office where the Vice Principal would call his mother.

32In terms of his IEP, the pupil was permitted to use the resource room and was given a support period class in the fall. At the time of the incident, this period does not appear to have been in place. He was to write tests in the special education room and was given extra time for tests and some support in terms of note copying.

33The pupil has low cognitive functioning, problems with distractibility and a related high frustration level. In addition to trying to manage the pupil’s behaviours, the school should have clearly identified his needs through the IPRC and assessment processes and developed a plan to help remediate the student who was functioning at least three grade levels behind his current grade. Given the increase in the acting out behaviours, linked to his frustration level, it should have been evident that his learning environment was not effective and that further investigation and identification of supports was needed. While the Principal felt the pupil should be in a different environment, such as a technical school or a school with higher teacher-student ratio to meet his needs, letting him more or less self-destruct in the current environment was not the appropriate path to meeting his needs. The mother wanted her child in [ ], his home school and the school was obliged to accommodate his needs.

How will expulsion affect the Pupil’s Ongoing Education

34The Principal was not certain whether or not the program for expelled students (the “Program”) would follow the pupil’s IEP. In light of this uncertainty, there is a possibility that the pupil, without specific accommodations, will become more frustrated and act out behaviourally. This goes to the third consideration under the “other factor” relating to the pupil’s IEP (whether or not the expulsion will aggravate or worsen behaviours). In addition, the possibility that the IEP might not be followed goes to the “other factor” that asks “how the expulsion would affect the pupil’s ongoing education”. If the pupil does not have his IEP accommodations at the Program, his already limited ability to learn may be completely curtailed. While the Program as described has a higher teacher to student ratio and access to youth workers and counselling, if the pupil’s primary needs are learning based, he will have little to no chance of learning without his specific accommodations.

35As a pupil with an IEP, the Board finds that all of the factors relating to the pupil’s special needs reduce the seriousness of the incident. The Board also concludes that the expulsion might adversely affect the pupil’s ongoing education if the IEP is not implemented at the Program. Thus, the potential negative impact of expulsion on the pupil’s ongoing education is an additional factor to consider.

Progressive Discipline

36The pupil’s disciplinary history in the context of his special needs is also pertinent. The Board finds that while there is some evidence of progressive discipline, there was room for more incremental discipline prior to taking the serious step of expulsion.

37The pupil was suspended for two days in November of 2003 for “fighting”; and for one day for “physical assault” in May of 2007. These were all elementary school incidents and indicate that there were long gaps between the need for and use of discipline.

38Once he entered high school, the incidences involving suspension increased and include the following suspensions:

October, 2007: two days for “fighting”

February, 2008: two days for “swearing at a teacher “

March, 2008: four days for “fighting with another student in the classroom”

April 2008, ten days for “intimidating teachers”

39According to the Principal, the pupil was also given temporary withdrawals from class and time outs in the office.

40The pupil’s disciplinary history is consistent with his increasing frustration levels, linked to his problems with learning. In the fall, he had only one suspension; however, in second term his suspensions increased to one per month, starting in February. Looking at the duration of suspensions (special needs considerations aside) it might have been appropriate to consider suspending the pupil for a longer period as the next step in incremental discipline. However, the Board remains convinced that the identification and accommodation of special needs and not further discipline in isolation was needed.

41The failure to use further, progressive discipline is a factor which reduces (in this case to a lesser extent than the other factors) the seriousness of the incident.

CONCLUSION

42The Board quashes the expulsion because the infraction – a simple assault – is not covered under section 310(1) to (8) of the Act. Had the TDSB included “assault” in its list of infractions requiring a mandatory suspension, thus fitting within the requirements of subsection 310(8), the Board would not have expelled this pupil because of the application of mitigating and other factors. The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of others. Moreover, his history, including his special needs and IEP, and the effect of the expulsion on his ongoing education, reduce the seriousness of the incident rendering an expulsion an inappropriate disciplinary response to the incident.

43In its decision of December 9, 2008, the Board quashed the expulsion and ordered that the pupil be reinstated to [his school]. The Board is concerned that the special needs of the pupil have not been met and recommended an IPRC be convened. The IPRC will provide access to an updated educational assessment. The expulsion of pupils should not be used as a route to accessing resources for pupils with special needs. The identification and accommodation of special needs and not punishment better serve the best interests of pupils like C.O.

Jennifer Scott,

Vice Chair

Presiding Member

Denyse Diaz,

Vice Chair

Sheena Scott

Member