OB v. Halton District School Board, 2019 CFSRB 81

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

OB

Appellant

-and-

Halton District School Board

Respondent

DECISION

Adjudicator: Andrea Himel

Date: November 21, 2019

Citation: 2019 CFSRB 81

Indexed As: OB v Halton District School Board (EA s.311.7)

APPEARANCES

OB, Appellant

Paul Marshall, Counsel

Halton District School Board, Respondent

Nadya Tymochenko, Counsel and Michael Cleveland, Student-at-law

Introduction

1This is an Appeal filed under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended (the “Act”). The Appellant appeals her son’s expulsion from his own school on April 23, 2019. The Respondent expelled the Appellant’s son (the “Student”) for allegedly committing sexual assault, sexual harassment and bullying.

2By Order dated November 5, 2019, the CFSRB overturned the expulsion. These are the reasons for that decision.

the law

3Section 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:

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 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.

4The Respondent has created a Safe Schools Policy pursuant to section 310(1)8 that sets out the following additional activities which may form the basis for a recommendation to expel:

• Any activity listed in subsection 306(1) [bullying] that is motivated by bias, prejudice or hate based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any similar factor (emphasis added).

• A pattern of behaviour that is so inappropriate that the student’s continued presence is injurious to the effective learning and/or working environment of others;

• Activities engaged in by the student on or off school property that cause the student’s continuing presence in the school to create an unacceptable risk to the physical or mental well-being of other person(s) in the school or Board.

5Section 3 of Ontario Regulation 472/07 (the “Regulation”) sets out the factors that must be considered when determining whether a student should be expelled. These factors operate to reduce the seriousness of the activity for which the student is expelled. They are set out below:

3. For the purposes of subsections 306 (2), 306 (4), 310 (3), 311.1 (4) and clauses 311.3 (7) (b) and 311.4 (2) (b) of the Act, the following other factors shall 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:

4. The pupil’s history.

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

6. 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 or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.

7. How the suspension or expulsion would affect the pupil’s ongoing education.

8. The age of the pupil.

9. 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 appropriate individualized accommodation has been provided, and

iii. whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct.

background

6At the time of the alleged infractions (collectively the “Incident”) which led to the expulsion, the Student was a grade 8 pupil with the Respondent.

7On March 25, 2019, a female pupil (the “Complainant”) alleged that over the course of the previous three months the Student and three other male students (the “Three Boys”) sexually assaulted her. All four boys were suspended for twenty days, and the Principal commenced investigations.

8According to the Principal’s investigation reports (which are very similar to one another), the administration concluded that the Grade 8 class (which had been together since grade 1), was the subject of a hierarchy of immense social influence and pressure. An “underground culture” of sexualized behaviour and sexualized talk had developed, along with a “don’t tell” mentality. The Incident allegedly occurred at lunch and recess when teachers were not present and some of the pupils would be on the lookout to protect their peers. The Student and the Three Boys (which includes one grade 7 student) were allegedly significantly involved in these behaviors.

9The Student and the Three Boys were accused of inappropriately touching the Complainant at school and at her home. They were also accused of sexual harassment and bullying behaviour towards the Complainant. Another classmate (the “Fourth Boy”) allegedly witnessed the touching and sexualized statements and told his friends to stop.

10The specific allegations are as follows: (1) that the Student committed two instances of inappropriate touching of the Complainant’s body; and, (2) that along with the Three Boys and other male classmates, the Student: (a) made sexually inappropriate comments and sexist jokes over a period of three months; (b) asked the Complainant “a lot” about what she had done sexually, and (3) made sexualized physical gestures and sounds.

11Following the suspension, the Complainant was incredibly distressed. She was unable to return to the class for any length of time and completed Grade 8 by doing work in the office and at home. She is now enrolled in a Grade 9 program in another town and is transported to and from school by the Respondent.

12On April 23, 2019 the Respondent held four back-to-back expulsion hearings. The Student and the Three Boys were expelled. The Respondent did not indicate the basis for the Student’s expulsion in its order. The Student is the only one who has appealed the expulsion.

13Following the expulsion hearing, the Student and the Three Boys were transitioned from a program for suspended students into different elementary schools. The Student and the two of the Three Boys are now enrolled at the same high school (which is part of another school board).

analysis

Issue on the Appeal

14An expulsion appeal before the CFSRB is a hearing de novo. This is because the proceeding before the CFSRB is likely the first time where witnesses are called to give direct evidence about the events at issue. Under the CFSRB Rules of Procedure, the school board calls its case first, followed by the appellant. The school board bears the onus of establishing that the student should be expelled, on the balance of probabilities. The CFSRB does not sit in review of a school board’s expulsion process or decision.

15In determining whether a student should be expelled, the CFSRB first determines whether the alleged incident took place and whether the incident is an activity for which a school board may expel a student. Upon finding that these two criteria are met, the CFSRB considers the mitigating and other factors set out in Act and the Regulation in order to determine whether an expulsion is appropriate and if so, the kind of expulsion that should be given.

16At the CFSRB hearing, the Respondent opted to rely solely on hearsay, double hearsay and triple hearsay evidence that could not be tested by the Student. For the reasons that follow below, the evidence procured by the Respondent is not reliable. It does not support a finding that, on the balance of probabilities, the Student committed the infractions alleged by the Respondent.

Preliminary Matters

The Witnesses

17The Appeal was filed on May 30, 2019, and was followed by a mediation on June 7, 2019, which was not successful. During a pre-hearing teleconference that took place on June 13, 2019, both parties advised that they intended to call one or more students as witnesses at the hearing, and they identified the following preliminary issues.

18Counsel for the Student sought the personal contact information for the classmates who were interviewed by the Principal or Vice Principal, and the Respondent took the position that they may be contacted through the school.

19The Respondent made a request that the Complainant be permitted to give her evidence through a method that does not bring her face to face with the Student. Counsel for the Student opposed that request.

20At a subsequent pre-hearing teleconference on August 12, 2019, I addressed these requests. I directed the Respondent to send a letter to the classmates’ parents: (1) requesting their consent to provide the Student’s counsel with their child’s contact information, and (2) providing the legal counsel’s contact information with a request that the parents contact him directly.

21I also ordered that the Complainant would be permitted to give her evidence. I advised that this may include the Student agreeing to leave the hearing room, the use of technology to enable testimony from another room, or a physical screen.

22On September 9, 2019, the Respondent provided witness statements for the following school board administrators (the “Administrators”): DB, the Vice Principal (the “Vice Principal”) at the school; JN, the Superintendent of Education with responsibility for the school (the “Superintendent”); and, SP, the Superintendent of Education with responsibility for Safe Schools (the “ Safe Schools Superintendent”).

23On September 13, 2019, a further pre-hearing teleconference was held. The Student’s counsel advised that only four (4) of the classmates’ parents had responded and only one classmate was given permission to speak to the lawyer. As he had been unable to connect with this classmate, the Student’s counsel requested and was granted an adjournment.

24At the commencement of the hearing on October 31, 2019, the Respondent advised that they did not intend to produce evidence from the Complainant or any of the other students (including the Three Boys who were expelled, the Fourth Boy or the fifteen Grade 8 classmates who allegedly witnessed the “underground culture”).

25I asked about the Respondent’s intention to rely solely on hearsay evidence and provided the Respondent with time to consider whether they wished to request an adjournment so that they could call evidence from someone who had first-hand knowledge about the Incident. The Respondent declined and the matter proceeded.

26Also at the commencement of the hearing, the Student’s counsel advised that he may or may not call the Student to testify. Ultimately, the Student opted not to provide or call any evidence and he opted not to make a statement. No witnesses were called on behalf of the Student.

The Hearsay Evidence

27The issue of the admissibility and weight attributed to the hearsay evidence was raised several times during the hearing.

28Counsel for the Student identified the significant impact of the expulsion on the Student, and he argued that the Student must have the opportunity to challenge the evidence and allegations. The Student was expelled for committing sexual assault, sexual harassment and bullying. His Ontario Student Record contains the Principal’s Investigation Report and the expulsion record which will follow him throughout his education. The Student has been labelled as a perpetrator of sexual abuse, harassment and bullying. He did not graduate with his classmates and has left the Respondent’s school board.

29The Respondent also acknowledged the seriousness of the allegations that led to the expulsion of the four boys, and the far-reaching implications to the Complainant, the Student, the Three Boys, and the classmates.

30The ability to challenge the evidence is important. The right to procedural fairness and natural justice are principles that define the justice system and must be considered by administrative tribunals. As such, at CFSRB hearings a party is expected to call direct evidence, which is subjected to cross-examination, at least with respect to the core issues which, in this case, relate to whether the Student committed the Incident.

31As explained by the Supreme Court of Canada, R. v. Khelawon, 2006 SCC 57 (at para. 35):

Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns.

The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination.” The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.

32Justice Stanley Sherr, a family law and child protection judge of the of Ontario Court of Justice, explains the risks associated with hearsay evidence in a recent summary of various principles of evidence law:

It is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant's assertion. Apart from the inability of the trier of fact to assess the declarant's demeanour in making the assertion, courts and commentators have identified four specific concerns. They relate to the declarant's perception, memory, narration, and sincerity: Ibid, at para. 2; R. v. Starr, 2000 SCC 40, at para. 159.

First, the declarant may have misperceived the facts to which the hearsay statement relates;

Second, even if correctly perceived, the relevant facts may have been wrongly remembered;

Third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and

Finally, the declarant may have knowingly made a false assertion.

The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. R. v. Baldree, 2013 SCC 35, [2013] S.C.J. No. 35. Gestures are capable of being characterized as a statement or utterance. While statements and utterances are usually verbal, consisting of the spoken word, conduct may also convey meaning. See: R. v. Nurse, 2019 ONCA 260.

33The potential problems caused by a reliance on hearsay evidence could have been avoided if the Respondent presented direct evidence from the Complainant (with the protection that I had ordered) AND/OR one or more of the Three Boys AND/OR the Fourth Boy (who was present at the Complainant’s home on March 25), AND/OR one or more of classmates.

34The Superintendent explained why the Respondent chose not call the Complainant to testify (including concerns about her re-victimization), however, she did not address why the Respondent opted not to call any of the other pupils who allegedly witnessed various infractions. Even if the Respondent had good reasons to decline to call any of the potential witnesses, this does not change the Student’s right to have the opportunity to meet the case against him in a fair and just manner, particularly given the seriousness of the charges and the significant impact of the decision to expel.

35While I could have declined to hear the hearsay evidence, I decided to admit the hearsay evidence at the hearing. CFSRB hearings are governed by the Statutory Powers and Procedure Act (“SPPA”) RSO 1990, c.S.22, which allows for hearsay evidence to be admitted on a more relaxed standard than that utilized by the courts.

What is admissible in evidence at a hearing

15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

What is inadmissible in evidence at a hearing

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Conflicts

(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

36In light of my decision to admit the hearsay evidence at the threshold stage, the issue becomes the appropriate weight to be attributed to said evidence. Where hearsay evidence goes to a core issue in the case and/or there are reasons to question its reliability, the evidence may be attributed less or limited weight. As set out below both of these considerations led me to conclude that the testimony provided at the hearing with respect to whether the Student committed the Incident must be attributed little weight.

The Hearing

The Administrators’ Evidence

37The school environment as described by the Respondent in the Principal’s Investigation Report was toxic. Following the Complainant’s disclosure the Principal conducted interviews of the Complainant and the classmates. The Principal and the Vice Principal conduced joint interviews of the Student, the Three Boys and the Fourth Boy. The Principal’s Investigation Report was partially written by the Principal and partially by the Vice Principal. It was relied upon heavily at the Respondent’s expulsion hearing and at this appeal.

38This Principal was unavailable and did not testify at the time of the CFSRB hearing. The Respondent called the Safe Schools Superintendent, the Vice Principal and Superintendent as its witnesses. With respect to details about the Incident, all three witnesses relied on the Principal’s Investigation Report and information provided to them by the Principal. The Administrators also relied on a statement made by the Student at the expulsion hearing. They all believe that the Student committed the alleged infractions.

39The details contained in the Principal’s Investigation Report are based on information provided by the Student, the Complainant, the Three Boys, the Fourth Boy and the classmates. Some of the information may have been provided to the third parties who then relayed it to the Principal and/or the Vice Principal. A large portion of the Student’s Principal’s Report is virtually identical to the other expelled boys’ reports, raising concerns about whether the information contained therein relates to the Student or one or more of the Three Boys. This concern is highlighted in the section entitled “Application of Other Factors” which purports to be about another boy (“D”) who was expelled, rather than the Student. That section describes D’s “knowledge and understanding on topics relevant to these incidents” and says nothing about the Student even though he is the subject of that report.

40The allegations contained in the Principal’s Report could not be tested by the Student as none of the witnesses at the hearing were present when any of the alleged sexual assaults or harassment behaviours took place. The Principal’s Report is hearsay, double or triple hearsay and contains various opinions that could not be challenged by the Student. This is highlighted by the Administrators’ evidence below.

41The Safe School Superintendent testified that he had no direct involvement in the investigation or in the drafting of the Principal’s Investigation as that is not his role. The Safe School Superintendent did attend a meeting with Principal, the Vice Principal and the Superintendent to review the draft report and the evidence. At that meeting the Safe Schools Superintendent gave them advice about interviewing the classmates.

42Prior to the Respondent’s expulsion hearing, the Safe Schools Superintendent vetted the report to ensure that it was proper and thorough and was not missing anything. He was aware that the Student had no disciplinary history and no individualized education plan. Given the seriousness of the Incident, and the Administrators’ assessment that none of the mitigating or other factors applied, the Safe Schools Superintendent supported the recommendation that the Student be expelled from his school alone.

43The Safe School Superintendent admitted under cross-examination that he had never reviewed the Principal’s interview notes of the classmates who allegedly witnessed the “underground culture”. When taken through the witness statements of thirteen of the classmates, the Safe Schools Superintendent admitted that none of them identified the Student as being a perpetrator of any inappropriate behaviour (although some of the classmates identified one or more of the Three Boys or other non-identified boys as displaying sexualized behaviour and statements).

44Cross-examination by the Student’s counsel revealed that at least some of the conclusions made by the Safe Schools Superintendent about the Student are based on premises that may not be true. The Safe Schools Superintendent could not reconcile the notes taken from the classmates’ interviews with the contents of the Principal’s Investigation Report, and his conclusion about the Student’s culpability. His evidence exemplifies several of the problems summarized by Justice Sherr that can arise when one relies on hearsay evidence. The Safe Schools Superintendent’s evidence, which was based solely on information provided by third parties, is not reliable.

45The Vice Principal testified that she was involved in joint interviews with the Principal of the Student, the Three Boys and the Fourth Boy. Each pupil was interviewed twice on the same day that the Complainant made her disclosure to her teacher and the Principal.

46The Vice Principal made notes of the interviews which were not “word for word” but created the “essence of the conversation to help her memory”. The Vice Principal admitted that she has no independent recollection of any of the details contained in her notes, which are cryptic in many places. The Vice Principal could only recall what is in the notes by reading them. The Vice Principal also admitted that she has no independent recollection of any other details about the interviews given by the Student, the Three Boys or the Fourth Boy.

47The Vice Principal did not interview the Complainant or the classmates. Details of the allegations made against the Student and/or the Three Boys were shared by the Principal and/or contained in the Principal’s Investigation Report.

48Given the Vice Principal’s inability to recall the information contained in her notes, or any further details about the Incident, her evidence cannot be relied upon with respect to whether the Student committed the alleged infractions. To the extent that the Vice Principal relied on information provided to her by the Principal, other third parties, or the Principal’s Report, this hearsay evidence is also not reliable for the reasons articulated previously.

49The Safe Schools Superintendent testified that she was consulted by telephone on the day of the Complainant’s disclosures, after the interviews with the Student, the Three Boys and the Fourth Boy were completed. She met with the Principal and Vice Principal and consulted with them on an ongoing basis. As is the case with the Safe Schools Superintendent, the Superintendent never observed any of the concerning behaviours, nor did she interview anyone involved. Her chain of information about the alleged infractions starts with the Complainant’s statements to the teacher, which were conveyed to the Principal, then to the Vice Principal and finally to her. This chain is at least double or triple hearsay and is not reliable.

The Student

50The Student did not testify at the CFSRB appeal. However, the Superintendent testified that she recalled the Student making a statement at the Respondent’s expulsion hearing. The Superintendent testified that the Student admitted to inappropriately touching the Complainant twice, and he said that he was sorry.

51The Respondent argued that this statement is an admission against interest that is properly admitted in this appeal and is determinative on this issue as to whether the Student committed the alleged infractions. Counsel for the Student objected arguing that the statement was an apology and is not admissible in any proceeding.

52I cannot conclude that the above statement is an admission that the Student committed the alleged infractions as he has made several contradictory statements with respect to the Incident and he opted not to testify at the appeal. At various times the Student has taken the following positions:

a. On March 25, 2019, the Student admitted to touching the Complainant according to notes made by the Vice Principal. The typewritten interview summary states that the Student admitting to touching the Complainant once when a supply teacher was at school and once at the Complainant’s home.

b. On March 26, 2019, the Student said “innocent” according to interview notes provided by the Respondent.

c. In anticipation of the Respondent’s expulsion hearing, the Student submitted a statement explaining that he accidentally touched the Complainant once and that, on another occasion, he tapped her once so that she would move away.

d. At the expulsion hearing on April 23, 2019, the Student made an oral statement (which was not produced at the appeal), where he allegedly made the admission statement described above. Both parties agreed that the Student was encouraged to make the statement by his previous lawyer, with the hope that the Student would be permitted to return to his school, continue to play basketball with his team and graduate with his class. Therefore, it may be that the Student made this statement as a means of persuading the Respondent to permit him to return to his school, rather than as a true admission of his culpability. (Since I have no evidence as to what was actually said I make no finding as to whether or not this statement was an apology that is not admissible in this hearing).

Conclusion

53In closing submissions the Respondent argued that although school discipline hearings do not aim to act as a deterrence to other students, in many cases that is an unintended benefit. Students learn about the consequences of inappropriate behaviour from the steps taken by the school when something is wrong. The Respondent submitted that students need to understand that issues like sex and violence are wrong, and hopefully these behaviours do not happen again.

54I agree that these lessons are important ones.

55However, it is also very important for students to learn that our legal system (including discipline hearings) requires that an accused person be permitted to challenge allegations made against him or her, and that every person has a right to a fair and just proceeding.

56In this case neither the evidence provided by the Administrators, nor the Superintendent’s recollection of the Student’s statement at the Respondent’s expulsion hearing, have persuaded me that the Student committed the Incident given its inherent unreliability. Because the Respondent has not established that the Student committed the Incident, there is no basis upon which to expel him.

57As a consequence of my decision, it is not necessary to review whether the Incident is an activity for which a school board may expel a student or whether there are any mitigating or other factors that would have mitigated against an expulsion.

Remedy

58Section 6 of Ontario Regulation 472/07 sets out the remedial authority of the CFSRB on an expulsion appeal. Subsection 6(4)2 states as follows:

After hearing an appeal from a decision of a board, the designated tribunal shall do one of the following:

If the board’s decision was to expel the pupil from his or her school only, quash the expulsion and reinstate the pupil to the school.

59In the normal course this means returning the student to the school from which he or she was expelled. This interpretation is further supported by subsection 6(6) which states:

If the designated tribunal changes an expulsion from all schools of the board to an expulsion from the pupil’s school only or quashes an expulsion and reinstates the pupil to his or her school, it may order that any record of the expulsion of the pupil be expunged or amended if the designated tribunal considers it appropriate in the circumstances. (emphasis added)

60The Student does not wish to return to his school as he is now enrolled in Grade 9 at another school board. This case was solely about quashing the expulsion and expunging the record.

61The CFSRB orders that:

a. The Respondent’s decision to expel the Student from his own school is quashed.

b. The record of expulsion shall be expunged from the Student’s Ontario Student Record and all other related documents held by the Respondent shall be amended accordingly.

confidentiality order

62Pursuant 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.