JS v. Rainbow District School Board, 2023 ONCFSRB 37

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JS

Appellant

-and-

Rainbow District School Board.

Respondent

INTERIM DECISION

Adjudicator: Eva Nichols Date: May 05, 2023 Citation: 2023 CFSRB 37 Indexed As: JS v Rainbow District School Board (Education Act s.311.7)

APPEARANCES

John Schuman, Counsel JS, Appellant

Kathleen Stokes, Counsel Rainbow District School Board, Respondent

Introduction

1This Interim Decision addresses the motions filed by the appellant, J.S., with the Child and Family Services Review Board (“the Board”) under section 311.7 of the Education Act, R.S.O.1990, c. E2, as amended, (the “Act”).

2The Appeal relates to the decision of the Respondent School Board (“the School Board”) to expel the student, M.S., from all schools of the School Board on April 6, 2023.

3The School Board’s decision to expel M.S. from all schools of the School Board was communicated to the appellant on April 6, 2023. The appellant filed an appeal of the expulsion decision with the Board on the same date, prior to receiving the School Board’s written decision on the matter.

4On the same date, i.e., April 6, 2023, the appellant filed a jurisdiction motion with the Board, requesting that the expulsion be overturned on the grounds that the School Board contravened the relevant legislation by providing its expulsion decision later than the legislated timeline. Specifically, the appellant alleges that the School Board lost jurisdiction because it did not make the expulsion decision within 20 days of suspending the pupil, as is required by the relevant legislation. Secondly, the appellant alleges that the stated grounds for expelling the pupil are not grounds for an expulsion in accordance with the relevant legislation.

5The Board determined that the jurisdiction issue, i.e., the issue of timeliness, will be considered by the Board at a video conference hearing on May 3, 2023.

6On April 21, 2023, the appellant filed a further motion with the Board asking that, in the event that the Board does not overturn and expunge the School Board’s expulsion decision on the above jurisdictional issues of being late and not relying on the specified grounds, the Board should schedule an expedited full hearing on the merits of the appeal.

7Further, the appellant also requested as part of the above cited second motion that the Board order the disclosure of certain specified documents as well as all related and relevant video evidence.

8The respondents opposed the requests and motions.

9The matter on the issue of timeliness proceeded, as scheduled, by videoconference on May 3, 2023.

THE APPELLANT’S SUBMISSIONS ON TIMELINESS

10The events that led to the pupil’s suspension followed by expulsion occurred on February 27, 2023. The principal notified the appellant of the pupil’s suspension on March 6, 2023. The notice stated that the pupil is suspended from March 2, 2023, to April 5, 2023, inclusive. This is the legislated maximum twenty-day suspension.

11The appellant initially argued that the twentieth suspension day should have been April 4, 2023. However, this contentious issue was eliminated on the basis that one of the intervening days, which the appellant had called a school day, was actually listed as a holiday on the respondent’s calendar and this school year calendar had been approved by the Ministry of Education. Therefore, this issue was eliminated.

12The School Board’s expulsion hearing was scheduled for April 5, 2023, i.e., the twentieth day of suspension. The appellant stated that the expulsion decision was not communicated to her at the hearing, and she only received the decision by telephone after contacting the Director of Education herself. The written confirmation of the pupil’s expulsion was dated April 6, 2023.

13The appellant alleges that the above contravenes section 311.3(8) of the Education Act, R.S.O., 1990 c. E-2. The Act states that the school board shall not expel a pupil if more than 20 school days have expired since the pupil was suspended under section 310, of the Act, unless the parties to the expulsion agree on a later deadline.

14The appellant stated that since she had not agreed on a later deadline, the expulsion decision was inappropriate and should be quashed.

THE SCHOOL BOARD’S SUBMISSIONS ON TIMELINESS

15The respondent alleged that they had complied with the required timeline. They explained that April 5, 2023, was a snow day, when all schools were closed. The respondent asked the appellant whether she would agree to delaying the hearing to the following day due to the weather. Since she did not agree, the hearing went ahead as scheduled via videoconference.

16Further, the respondent stated that the appellant was notified of the decision on the day after the hearing and that this complied with section 311.6(1) of the Act, which states that the notice of the expulsion must be communicated to the appropriate persons “promptly”. Counsel argued that the word “promptly” does not mean “immediately”.

17Therefore, the respondent asked that the appellant’s motion for quashing the decision on the grounds of being out of time be dismissed. The appellant did not agree. Both parties made oral submissions on the meaning of the word promptly.

DECISION ON THE MATTER OF TIMELINESS

18Having considered the parties’ submissions, I find that the expulsion decision was made in a timely manner on the twentieth day of suspension.

19Further, by providing the decision to the appellant on the following day, the respondent met the requirement for this being “prompt”. Since the Notice of expulsion specified in section 311.6(1) of the Act calls for it to be in writing, and it sets out the details of what must be included in the Notice, providing it to a party on the day after the hearing into the matter meets the requirement for being prompt.

20Therefore, the appellant’s motion requesting that the Board overturn the expulsion decision on the grounds of being late is denied.

REGARDING THE APPELLANT’S MOTION FOR EXPEDITING THE HEARING AND DISCLOSURE

21As stated above in para. 6, the appellant requested that, in the event that the Board does not overturn the expulsion decision as being untimely, then the Board should order that the hearing in the matter of the appeal of the expulsion be scheduled for an expedited full hearing.

22During the hearing on the previous motion, I stated to the parties that, in the event that the initial motion is not successful, i.e., the expulsion decision stands, I would order that the hearing into the matter should proceed in an expedited way such that a Decision can be rendered before the start of the 2023/24 school year.

23Both parties acknowledged that they understood the above direction and confirmed that they would comply with the Board’s directions.

24The appellant also requested an order for disclosure of both written and videotaped materials that were part of the principal’s investigation and the expulsion committee’s proceedings. I note that the respondent opposes this request and, in particular, does not wish to disclose the videotaped version of the events that led to the expulsion decision.

25Their submissions focused on the privacy of the student, who was impacted by the actions that led to the pupil’s expulsion. While the Board understands the respondent’s stated obligations to protect the privacy of students who are not party to an expulsion proceeding before the Board, in order to ensure that the expulsion hearing before the Board is procedurally fair, the appellant must be allowed to submit all available evidence of the alleged events which led to her son’s expulsion from all schools of the respondent school board. The Board does not need to know the name of the other student or students who were involved in the events that led to the pupil’s expulsion. Further, at a hearing into the matter, the Board can ensure that any information introduced into evidence, including any videotapes, are only available to those participants who must be allowed to do so for the purposes of making submissions on the matter and for making a decision on the issues.

26Therefore, the respondent’s opposition to the disclosure of the requested documentary and videotaped evidence must be overturned.

order

27For all of the above reasons, I decline to quash the respondent’s decision to expel the student from all the schools of the School Board, on the grounds of untimeliness.

28The appeal of the expulsion decision, filed by the appellant will proceed within the adjudicative process of the Board in an expedited fashion. What that means is the parties will be directed to attend a pre-hearing at the earliest opportunity to schedule disclosure dates and a hearing on the merits of the appeal.

29Following that, a hearing on the merits of the appeal will be scheduled at the earliest opportunity, such that a decision can be issued before the start of the 2023/24 school year at the beginning of September,2023.

30I remain seized.

CONFIDENTIALITY ORDER

31Pursuant 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.