PL v. Ottawa-Carleton District School Board, 2023 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

PL Appellant

-and-

Ottawa-Carleton District School Board Respondent

DECISION

Adjudicator: Tamara Jordan Date: May 23, 2023 Citation: 2023 CFSRB 43 Indexed As: PL v Ottawa-Carleton District School Board (Education Act 311.7)

WRITTEN SUBMISSIONS

PL, Appellant Self-Represented

Ottawa-Carleton District School Board, Respondent Richard Sinclair, 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”).

2The Appellant is appealing the decision of the Respondent to exclude the Applicant’s child (the “Student”) from school.

3The Respondent disputes the CFSRB’s jurisdiction to hear the appeal on the basis that “an appeal of an exclusion is to the Board of Trustees, not the CFSRB”.

4This decision explains why the CFSRB does not have jurisdiction to hear, and is therefore dismissing, the Appeal.

background

5The Student is in grade two, with identified exceptionalities and several diagnosed disorders, and was placed in a specialized program at his school.

6On December 8, 2022, the Respondent informed the Appellant of the Respondent’s decision to exclude the Student during a case conference. Thereafter, the Respondent provided the Appellant with a letter confirming the reasons for the exclusion (“Respondent’s December 8, 2022 Letter”).

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

a. the Student is being denied access to the school and school property under the authority of section 265(1)(m) of the Act;

b. before the Student can return to school, five conditions must be met. The Respondent provided details related to the conditions that include: a diagnostic assessment, a clinical plan/program, a crisis-response plan, a school/classroom audit, and a case conference with the Student’s support team;

c. when the conditions were satisfied, a re-entry meeting would be scheduled; and

d. should the Appellant wish to appeal the exclusion decision, she may contact the office of the Superintendent of Instruction.

8The Appellant disputes that the Student was excluded under section 265(1)(m) of the Act and has instead been effectively expelled.

RELEVANT LAW

The Act

9Section 311.7(1) of the Act sets out that a “designated tribunal” may “hear appeals of school board decisions to expel pupils”.

10Ontario 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”.

11Section 265(1)(m) of the Act states:

265(1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,

(m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would be in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.

ANALYSIS

12The Respondent submits that the school and support staff employed numerous educational and behavioural interventions with the Student over several months as it attempted to keep the Student and others safe in the school during the Student’s frequent dysregulated and violent behaviours. The Respondent submits that the Student’s behaviour has had a profound impact on the school climate and sense of safety for other students, staff and visitors, and as a result of the Student’s behaviours the school has excluded the Student.

13The Respondent states that the Student’s behaviour is a function of his disability and that progressive discipline, including suspension and expulsion, would not be appropriate. The Respondent relies on section 265(1)(m) of the Act, the Ministry of Education’s Policy/Program Memorandum 145 that confirms that schools may exclude a student from a school and that exclusions are not intended to be a form of discipline, and the Respondent’s policy related to exclusions, Pause for Safety (Student Exclusions), to support its exclusion of the Student.

14The Appellant submits that the Student has a right to education, the Respondent is not supporting this right, and the Respondent is not accommodating the Student. The Appellant states that the Student was offered and accepted a placement in a specialized program at another school but the Respondent has halted that placement. The Appellant states that the Respondent is not following its policy for the “timely return” of a student after an exclusion and the Student has now been out of school for several months. The Appellant submits that given the duration of the exclusion, and the Student’s inability to attend another school, the exclusion has become disciplinary and effectively, an expulsion.

15In support of her position, the Appellant refers to provisions of the Act, Ontario Regulation 440/20 related to suspensions of students under grade four, the Respondent’s policy related to exclusions, and documentation between the Respondent and the Appellant prior to and after the Student’s exclusion on December 8, 2022.

16The CFSRB has jurisdiction to hear appeals of school board decisions to expel students under section 311.7 of the Act. Accordingly, there must be an expulsion decision made by a school board for the CFSRB to consider in these appeals.

17However, in DN v. Toronto District School Board, 2019 CFSRB 27 (“DN”), the CFSRB held that in exceptional cases, where it is clear that the actions of a school board amount to or are in effect an expulsion through the exclusion of a student, the CFSRB may assume jurisdiction.

18In DN, a student was alleged to have committed an activity for which a mandatory suspension was required under section 310 of the Act, and where a principal must conduct an investigation under section 311.1 of the Act to decide whether to recommend to a school board that a student be expelled. The principal initially excluded the student citing section 265(1)(m) of the Act, then later rescinded the exclusion and issued a 20-day suspension.

19Under section 306(4) of the Act, a suspension cannot be longer than 20 days. In DN, at the time of the appeal to the CFSRB, the student had been out of school for 35 days from the date on which he should have been mandatorily suspended. The CFSRB followed the decision in Appellant v. Toronto District School Board, 2016 CFSRB 59 that held that a suspension greater than 20 days is an expulsion, in finding that the student had been effectively expelled. In determining that the student had been effectively expelled, the CFSRB also noted that the school board directed the student to a program for suspended and expelled students.

20Section 265(1)(m) of the Act sets out that it is the duty of a principal of a school to refuse to admit to the school or classroom a person whose presence in the school or classroom would be detrimental to physical or mental well-being of students.

21The Student has been excluded from his school because the Principal is concerned that the Student’s behaviour is causing safety issues for not only the Student, but other students and staff working in the school. Section 265(1)(m) of the Act, and the policy implemented by the Respondent related to this section, support the authority of the Principal to exclude the Student until certain conditions are met to ensure safety at the school. The Respondent’s December 8, 2023 Letter clearly sets out these conditions. Correspondence between the parties before and after the expulsion relate to the Appellant addressing the conditions and the Student’s needs.

22The circumstances in the within Appeal are dissimilar to those in DN. The facts in this Appeal do not support that the exclusion of the Student is effectively an expulsion. There is no evidence that the Respondent is using the exclusion as a means to discipline the student, delay a suspension or expulsion, or that the Respondent’s actions amount to or are in effect an expulsion.

23While the Appellant may have concerns about the conditions listed in the Respondent’s December 8, 2022 Letter and the fulfilment of those conditions, the duration of time the Student has been excluded, and the Respondent’s accommodation of the Student at his school or another specialized program, the CFSRB is not empowered to hear these issues. Under section 311.7 of the Act, the CFSRB may only hear the appeal of an expulsion decision.

24This in no way minimizes the difficulty of this situation for the Student and the Appellant as she attempts to advocate for her son and his education. The CFSRB simply cannot hear matters outside the jurisdiction provided to it under the law.

Conclusion

25I find that the Student was excluded in accordance with the Respondent’s policy and section 265(1)(m) of the Act 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 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.