FA v. Peel District School Board, 2023 CFSRB 34

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

FA

Appellant

-and-

Peel District School Board

Respondent

DECISION

Adjudicator: Tamara Jordan

Date: April 21, 2023

Citation: 2023 CFSRB 34

Indexed As: FA v Peel District School Board (Education Act s.311.7)

WRITTEN SUBMISSIONS

FA, Appellant

Self-Represented

Peel District School Board, Respondent

Jessica Jesudasan, Counsel

Introduction

1This is an Appeal filed with the Child and Family Services Review Board (“CFSRB”) under section 311.7 of the Education Act, R.S.O. 1990, c.E2, as amended (the “Act”). The Appellant is appealing the decision of the Respondent to move the Student from in-person learning at his school to hybrid learning or to another school within the Respondent’s school board.

2A pre-hearing in this matter was held on March 9, 2023. The Respondent disputed the CFSRB’s jurisdiction to hear the appeal on the basis that there is no expulsion to appeal and the parties thereafter provided submissions in writing on the issue of the CFSRB’s jurisdiction.

3This decision explains why the CFSRB does not have jurisdiction to hear, and is therefore dismissing, the Appeal.

background

4On January 25, 2023, the Student was suspended from his school in relation to an incident that occurred between the Student and another student the day before (the “Incident”).

5On February 2, 2023, the school Principal sent a letter to the Appellant and the Student and informed them that after his investigation following the Student’s suspension related to the Incident, he has “decided not to recommend to the Discipline Committee that [the Student] be expelled” (“February 2, 2023 Letter”). The Principal also stated in his February 2, 2023 Letter that he had “determined that the suspension should be withdrawn and the record expunged”.

6On February 8, 2023, the Respondent sent a letter to the Appellant stating that the Student would be “administratively transferred” from in-person to hybrid learning at his school “effective immediately” (“February 8, 2023 Letter”).

7As part of the Respondent’s February 8, 2023 Letter, the Respondent also stated that:

a. it investigated and substantiated that the Incident included “sexually inappropriate conduct”;

b. the decision for the administrative transfer was made “solely to preserve and foster students’ safety, well-being and achievement, including that of [the Student] and student(s) impacted, and is not disciplinary”;

c. the administrative transfer was authorized under Respondent Policy 48, Safe and Caring Schools (“Policy 48”), the Superintendent Transfer Operating Procedure and under the authority of the Act and Ministry of Education Policy/Program Memorandum 145 (“PPM 145”); and

d. instead of hybrid learning at the Student’s school, the Student could attend in-person learning at another high school within the Respondent board “in another appropriate DDR class” for the remainder of the year. The Respondent offered a meeting to review supports for the Student to facilitate that transfer.

8The Appellant disputes that the Incident involved a sexual assault such that a transfer was not warranted.

9The Appellant disputes that the Student was “administratively transferred” and was instead expelled given the definition of “expulsion” in Policy 48.

10The Appellant has concerns with the way in which the Principal and Respondent investigated the Incident.

11The Appellant has concerns with his process of appeal to the Respondent’s Superintendent of Safe and Caring Schools related to the transfer decision set out in the February 8, 2023 Letter.

RELEVANT LAW

The [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e2/latest/rso-1990-c-e2.html)

12Section 310(1) of the Act requires a principal to issue a mandatory suspension if a student has engaged in any of the enumerated activities listed in that section, including sexual assault.

13Section 311.1(1) requires that, “[w]hen a pupil is suspended under section 310, the principal shall conduct an investigation to determine whether to recommend to the [school] board that the pupil be expelled”.

14Section 311.1(5) sets out what a principal must do if they decide not to recommend to a school board that a student be expelled after their investigation. That section states:

311.1(5) If, on concluding the investigation, the principal decides not to recommend to the [school] board that the pupil be expelled, the principal shall,

(a) confirm the suspension and the duration of the suspension;

(b) confirm the suspension but shorten its duration, even if the suspension has already been served, and amend the record of the suspension accordingly; or

(c) withdraw the suspension and expunge the record of the suspension, even if the suspension has already been served.

15Section 311.7(1) of the Act sets out that a “designated tribunal” may “hear appeals of school board decisions to expel pupils”.

16Ontario Regulation 472/07 under the Act, entitled Behaviour, Discipline and Safety of Pupils, sets out at section 4 that the CFSRB is the “designated tribunal” under subsection 311.7(1) of the Act, “to hear appeals of [school] board decisions to expel pupils”.

ANALYSIS

17In K.W. v. Toronto Catholic District School Board, 2018 ONSC 2794 (“KW”), the Ontario Divisional Court confirmed at paragraph 33 that PPM 145 “contemplates non-disciplinary transfers to preserve school safety” and noted that “where the transfer is necessary to protect a student it is preferable that the student who has been harmed not be moved”. KW confirms that a non-voluntary transfer of a student from one school to another is not the same as a disciplinary expulsion.

18In NH, JL and AG v. Ottawa-Carleton District School Board, 2022 CFSRB 6 (“NH”), three students were suspended but were not recommended for expulsion and instead, were administratively transferred to other schools. The CFSRB found that the school board’s decision to administratively transfer the students did not amount to de facto expulsions as expulsion decisions can only be made by the elected trustees of a school board, and the administrative transfers of the students were done for safety reasons further to the policies and procedures of the school board and PPM 145. In NH, the CFSRB also confirmed that if it is determined that a suspension is not going to escalate to an expulsion, the CFSRB does not have the jurisdiction to hear the appeal.

19Further, in NH, the CFSRB noted at paragraph 18 that the CFSRB “does not engage in evaluating the school board’s investigation/expulsion process, but rather focuses on the events that led to the matter being heard by the [CFSRB]”.

20In this case, there is no dispute that the initial suspension of the Student was withdrawn and the related record would be expunged as per the Principal’s February 2, 2023 Letter. In his February 2, 2023 Letter, the Principal specifically noted that he had decided not to recommend that the Student be expelled. In other words, the suspension did not escalate to an expulsion.

21The Respondent informed the Appellant in its February 8, 2023 Letter that it was transferring the Student to hybrid learning at his school “to preserve and foster students’ safety, well-being and achievement, including that of [the Student] and student(s) impacted, and is not disciplinary”. The Respondent also provided the Student with the option of attending in-person at another school within the Respondent Board.

22As set out in the Respondent’s February 8, 2023 Letter, the Student’s transfer was effected in line with the Respondent board’s policies and procedures and PPM 145. The decisions in KW and NH both support that non-disciplinary transfers of students from one school to another may be undertaken by school boards for safety reasons and that these do not constitute an expulsion.

23The Appellant’s argument that the Student’s inability to attend in-person school activities and field trips as a hybrid learner at his school means he has been effectively expelled is flawed reasoning. While expelled students “from all schools” under Policy 48 “cannot go to school or take part in regular school activities or events”, this does not mean that a student who is unable to take part in any school activities or events at one or more schools is effectively expelled. I also note that had the Student taken the opportunity offered by the Respondent to transfer to in-person learning at another school, he would have had the opportunity to engage in any activities and events offered at that other school.

24Finally, while the Appellant may have concerns about the Principal’s investigation and his appeal of the Student’s transfer to the Superintendent, the CFSRB is not empowered to hear these. Under section 311.7 of the Act, the CFSRB may only hear the appeal of an expulsion.

Conclusion

25I find that the Student was administratively transferred in accordance with the Respondent’s policies and PPM 145 and there is no expulsion for the CFSRB to review.

26Accordingly, I conclude the CFSRB lacks jurisdiction to review the Appeal and it must be dismissed.

order

27The Appeal is dismissed.

confidentiality order

28Pursuant 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 Application 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.