CC v Peel District School Board, 2025 CFSRB 71

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CC Appellant

-and-

Peel District School Board. Respondent

DECISION

Adjudicators: Lise Henrie, Malcolm M. MacFarlane, Tracy Foster Date: June 02, 2025 Citation: 2025 CFSRB 71 Indexed As: CC v Peel District School Board (Education Act s.311.7)

APPEARANCES

CC, Appellant Idris Orughu, Representative

Peel District School Board, Respondent Nadya Tymochenko and Zoe Aranha, Counsel

WRITTEN SUBMISSIONS

Peel District School Board, Respondent Nadya Tymochenko and Zoe Aranha, Counsel

OVERVIEW

1This is an Appeal to the Child and Family Services Review Board (“CFSRB”) under section 311.7 of the Education Act, R.S.O. 1990, c. E.2 (the “Act”), of the decision of the Peel District School Board (“School Board”) to expel a 17-year-old student (“Pupil”) from all schools of the School Board.

2The Pupil was attending grade 11 at a secondary school (“School”) within the School Board at the time of his expulsion.

3The Appellant is the Pupil’s mother. The Appellant sought to have the School Board’s January 27, 2025 decision to expel the Pupil overturned and have the Pupil return to the School. The Appellant’s position is that the School Board did not consider all relevant factors in its decision to expel the Pupil, including mitigating circumstances, the impact of the expulsion on the Pupil’s education and needs, as well as other circumstances surrounding the expulsion.

4It is the School Board’s position that the expulsion decision should be upheld. The School Board submits that the Pupil committed a severe breach of the School Board Code of Conduct when he threatened to kill a peer and later assaulted the peer in the washroom repeatedly, requiring the peer to seek medical treatment. It argues that the Pupil’s presence at a secondary school poses a risk to the physical and mental well-being of the school community and that the appropriate progressive discipline approach is an expulsion from all School Board schools.

5The CFSRB heard the Appeal on April 23 and 24, 2025.

Decision

6On May 1, 2025, the CFSRB issued the following Order:

The CFSRB confirms the School Board’s decision to expel the Pupil from all schools of the School Board.

Reasons for the Order will follow in a written decision within 45 days of the completion of the Hearing.

7Below are the reasons for the CFSRB’s decision.

Background

8Prior to starting grade 10 at the School in September 2023, the Pupil had previously attended a different secondary school for grade nine and several elementary schools. The alleged victim (“Student A”) of a November 28, 2024 assault by the Pupil had attended middle school with the Pupil. Student A and the Pupil occasionally interacted with each other through social media since their time together in middle school. Despite this interaction, they did not have personal contact with each other prior to a November 28, 2024 incident where the Pupil allegedly assaulted Student A.

9On October 8, 2024, the Pupil participated in an altercation in the hallway of the School that led to what was characterized by School staff as an assault on a victim different from Student A (“Student B”). Shortly after the altercation ended, the Pupil entered Student B’s drama class, contrary to the instructions of the teacher. The Pupil confronted Student B regarding a neck chain belonging to the Pupil that was allegedly broken during the hallway altercation. The Pupil and Student B engaged in a physical conflict. As a result, the Pupil was suspended for ten days and was assigned to the Fresh Start Program offered by the School Board for suspended students.

10On November 27, 2024, the Pupil sent threatening social media messages to Student A. The Pupil sent these threatening messages out of anger at Student A for sharing information with a female student in the School about the Pupil’s alleged involvement with another female student from a different school. In the social media messages, the Pupil threatened to “kill your whole family” and threatened to assault Student A during gym class the following day, saying, “tomorrow is your last day on earth.”

11On November 28, 2024, the Pupil skipped his classes and was seen on School video cameras wandering the halls of the School checking washrooms accompanied by two students including his friend (“Student C”), who later testified in this matter. On November 28th while checking washrooms, the Pupil encountered Student A in a washroom on the same floor as the gym class which Student A was scheduled to attend. The Pupil confronted Student A in the washroom along with Student C, and the Pupil assaulted Student A. During the assault, the Pupil broke Student A’s glasses and threw them in a toilet.

12On December 18, 2024, in a letter to the Appellant, the School Principal (“Principal”) formally issued a 20-day suspension to the Pupil for having allegedly “made online threats to harm a peer and kill a peer’s family. Following that, he is also alleged to have assaulted the peer in the washroom.” The Principal informed the Appellant that the Pupil could attend the Fresh Start Program.

13In another December 18, 2024 letter to the Appellant, the Principal informed the Appellant that she would be recommending to the School Board’s Discipline Committee that the Pupil be expelled from all schools of the School Board.

14On January 27, 2025, the School Board held an expulsion hearing and confirmed the recommendation of the Principal. As per the Appellant’s Application material, on February 7, 2025, the School Board provided the Appellant with its written decision to expel the Pupil from all schools of the School Board. In its decision, the School Board described the infraction as “caused bodily harm to another person requiring medical attention, contrary to section 310 of the Education Act and the Board’s Policies and Procedures, and the mitigating and other factors do not mitigate the discipline recommended.”

15Since his expulsion on December 18, 2024, the Pupil has been attending the School Board’s Fresh Start Program for expelled students.

PRELIMINARY ISSUES

16Two issues were raised by the parties prior to the start of the Hearing: the admissibility of testimony by an “expert witness” proposed by the Appellant; and the admissibility of a video clip proposed by the Respondent.

Admissibility of “Expert Witness”

17The Appellant was proposing that the Panel hear testimony from an “expert witness,” Shernett Martin. The Appellant submitted that Ms. Martin had 20 years of experience as a teacher and had worked with students with disabilities. In their documents package they included a two-page summary of the “expert witness’” accomplishments and awards related to creating an “inclusive learning” environment. The documents provided by the Appellant did not include a comprehensive curriculum vitae for the “expert” and did not include a witness statement detailing what the “expert” would be testifying to in the Hearing. Further, the “expert” had not met with the Pupil and it was not clear how the “expert’s” testimony would relate to the individual circumstances of the Pupil that were the focus of the Hearing.

18The Respondent referred the Panel to the Supreme Court of Canada decision in R. v. Mohan 1994 80 (SCC), [1994] 2 SCR 9, which sets out the criteria for the admissibility of expert evidence: 1) relevant, 2) necessity in assisting the trier of fact, 3) the absence of any exclusionary rule, and 4) proper qualification. The Respondent argued the proposed “expert” was not a physician or psychologist. In the absence of such a professional qualification and in the absence of a detailed curriculum vitae detailing academic publications, they argued that it was not possible to verify the proposed witness as an “expert.” They further argued that in the absence of a witness statement, they were prejudiced by not being able to adequately prepare for cross examination of the witness should the witness be allowed to testify. Finally, they argued that since the “expert” had never met the Pupil, and was not an expert on Attention Deficit Hyperactivity Disorder (“ADHD”), which was argued as a mitigating factor in the expulsion, the testimony of the “expert” was not relevant and not necessary as the panel has sufficient expertise to understand and decide the issues before it.

19The panel considered the arguments of both the Appellant and the Respondent and found in favour of the Respondent. The Panel was particularly concerned with the hypothetical nature of any testimony as the “expert” had never met with the Pupil. It also considered the issue of fairness to the Respondent in the context of the Appellant’s lack of notice. There was no witness statement or detailed curriculum vitae for the proposed witness, therefore resulting in a lack of opportunity for the Respondent to prepare for cross examination of the witness.

Admissibility of Respondent’s video clip

20The Respondent proposed to enter in evidence a 36-second video clip of camera footage from the hallway titled “Video footage after the assault - telling the story of the washroom assault.” In a letter to the CFSRB dated April 22, 2025, the Respondent requested that this video, which was inadvertently not included in their package of evidence to be relied upon at the Hearing, be included in their evidence package. According to a CFSRB Pre-Hearing Report dated March 31, 2025, all materials to be relied upon at the Hearing were to be filed with the CFSRB by April 14, 2025. The April 22, 2025 letter notes that the video footage was provided to the Appellant on April 21, 2025 and that a description of the video was provided to the Appellant on April 14, 2025 in Principal Sharron Kuhl’s witness statement. The Respondent argued that there was no prejudice to the Appellant in including the video clip, as the clip was short, and the Appellant had ample time to review and prepare a response to the video footage~~.~~

21The Appellant objected to the admission of the video clip, arguing that it was provided after the deadline for disclosure and that because of this it was prejudicial as they had insufficient time to properly review the video and prepare to address the contents of the video.

22The Panel considered the submissions of both parties. The Panel considered that the video clip was brief. The Panel also considered the relevance of the video in light of the other video and documentary evidence that the Respondent had provided in its materials to be relied upon at the Hearing. The Panel determined that the video had limited relevance to the core issues central to the Hearing. The Panel further considered that the prejudice to the Appellant of admitting a video clip that was submitted after the deadline for submission of materials to be relied upon outweighed the probative value of the video given the limited relevance of the video to the proceedings. The Panel determined that the video clip would not be admissible.

ISSUES ARISING DURING THE HEARING

23During the Hearing, the Appellant proposed to play portions of a 34-minute audio file of another student that they argued would speak to the lack of trust in the School’s administration by students attending the School. The Appellant argued that the audio file had been disclosed within the required time frame for submission of materials to be relied upon at the Hearing. The Respondent objected to the admissibility of this audio file on multiple grounds including lack of relevance to the proceedings.

24The Panel considered the submissions of the parties and determined not to admit the audio file. The Panel’s reasons for this decision included concerns about the relevance of the audio file to the proceedings. The relevance to the Pupil and the issues under consideration in the Hearing were not clear or apparent. The Panel was also concerned regarding confidentiality issues surrounding the audio file as it appeared to be an audio recording of another student and it was not clear who made the recording or whether it was made with permission of the participants in the recording. Finally, the panel was concerned that the Appellant did not have anyone available to testify to the circumstances surrounding the origins and accuracy of the recording. For the above reasons, the Panel determined not to admit the audio recording into evidence.

ISSUES CENTRAL TO THE APPEAL

25The issues central to this Appeal are as follows:

1. What activities led to the Pupil’s expulsion?

2. Are there any factors in section 2 of Ontario Regulation 472/07 that mitigate against the decision to expel the Pupil?

3. Are there any factors in section 3 of Ontario Regulation 472/07 that mitigate the seriousness of the activities for which the Pupil was expelled?

analysis

26This Appeal requires the Panel to conduct a new Hearing. In doing so, the panel considered the witness testimony, documents, and other material (i.e., audio and video recordings, diagrams, and photographs) accepted into evidence at the April 23 and 24, 2025 Hearing.

27Six witnesses testified at the April 23 and 24, 2025 Hearing. Witnesses for the Respondent included the Principal of the School; Student A, the victim of the November 28th assault in the School washroom; a teacher, (“Teacher J.C.”); and the District Superintendent of Education (“Superintendent”). Witnesses for the Appellant included Student C who is a friend of the Pupil and a witness to the November 29, 2025 assault in the washroom, and the Pupil himself.

28Evidence presented at the Hearing included several videos from the School hallway cameras, photographs of text messages from cell phones, and extensive documentary evidence including contemporaneous notes of interviews with student witnesses to the assaults.

29Both parties made oral submissions at the conclusion of the Hearing. The parties were provided with the opportunity to make brief written submissions following the conclusion of the Hearing. The Respondent made final written submissions. The Appellant chose not to make a final written submission.

30There was considerable contradictory evidence presented. In this decision, at the new Hearing, the Panel was required to make several findings based on both corroborated and uncorroborated evidence. All the Panel’s findings below are made on the balance of probabilities (i.e., whether it was more likely than not that something occurred).

1. What activities led to the Pupil’s expulsion?

31Under section 310(1) of the Act, a Principal shall suspend a pupil if they believe that the pupil has engaged in any one of several activities listed in that subsection, at school or a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate. The list of activities includes, at subsection 310(1)3, “Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.”

32Under section 310(1)8 of the Act, a Principal may also suspend a student for “Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil.” The School Board’s Code of Conduct Policy sets out expectations related to student behaviours. As part of that policy, members of the school community must not “engage in bullying behaviours (including cyberbullying)” and must not “inflict bodily harm on another person.”

33The Pupil’s expulsion stems from two assault-related incidents, the first resulting in an initial suspension and the second resulting in a suspension leading to the Pupil’s expulsion.

October 8, 2024 Incident and Suspension

34Regarding the October 8, 2024 incident, the Principal testified that the Pupil was one of several peers who pushed Student B into school lockers. The Panel reviewed video evidence from the School’s hallway cameras. In the video it was clear that the Pupil’s friend, Student C, initiated the pushing, however, the Pupil did engage in pushing Student B as well.

35Following the episode in the hall, the Pupil discovered that his neck chain was broken. The Pupil blamed Student B even though Student B did not initiate the pushing in the hallway. Shortly after the hallway incident, to confront Student B, the Pupil entered the class Student B was attending despite the teacher telling him not to enter. The Pupil confronted Student B and a physical altercation ensued. It was not clear from the video whether it was the Pupil or Student B who initiated the physical altercation. In his testimony, the Pupil testified that Student B initiated the physical altercation by hitting the Pupil when he came in the door.

36There is conflicting evidence regarding how many times the Pupil attempted to enter the classroom. The Pupil says he only attempted to enter once. The Principal’s testimony and the evidence in the Principal’s Analysis of Incident Report indicates that the Pupil attempted to enter the classroom twice and was clearly told by the teacher to leave. In the video evidence of the classroom incident, the teacher can be seen on the classroom phone, which the Respondent submitted was the teacher calling the office to report what was happening. What is clear is that the Pupil entered the classroom without the permission of the teacher and confronted Student B leading to a physical altercation. Had the Pupil not entered the classroom, the physical altercation would not have occurred.

37In a subsequent text message from Student B to the Pupil, entered in evidence by the Appellant, Student B downplayed the impact of the physical altercation stating that it wasn’t a “gang assault” and that he didn’t feel unsafe. Despite this, the Principal testified that feedback she received from several students and the teacher in Student B’s class, indicated that the impact of this violent physical altercation on the school community is that both students and teachers are feeling unsafe in classroom settings. The Principal testified that the Pupil’s actions have negatively affected the culture of the School.

38As a result of the October 8, 2024 incident in the classroom, the student was suspended for a period of ten days. The School did not seek expulsion because of this incident.

39In considering the October 8, 2024 incidents in the hall and the classroom, the Panel is inclined to see the incident in the hall as more reflective of inappropriate horseplay rather than characterizing it as an assault. In contrast, the Panel viewed the incident in the Drama class as a serious violation of the School’s Code of Conduct. While there is conflicting testimony regarding who initiated the physical altercation in the Drama class, it is clear to the Panel that the Pupil entered the classroom without permission and entered into a physical altercation with Student B regardless of who initiated it.

40The Panel finds that it was inappropriate for the Pupil to have entered the classroom without permission to confront Student B. There were many other avenues that the Pupil could have taken to address his concerns, including speaking with Student B after class, and approaching teachers or administrative staff and seeking their assistance to resolve the issue.

November 27 and 28, 2024 Incidents

41On November 27 and 28, 2024, following shortly after the October 8, 2024 classroom incident, the Pupil became engaged in another incident involving online threats to Student A and his family on November 27, 2024, and an assault on Student A in the School washroom on November 28, 2024.

42Testimony from the Principal is that on November 27, 2024 the Pupil became upset after Student A shared information with another female student at the School regarding the Pupil’s connection with a female student at another school. The Pupil and Student A exchanged text messages regarding this, and in these text messages the Pupil threatened Student A with physical harm, stating that the following day, November 28, 2024, would be Student A’s “last day on earth.” He further stated that he knew where to find Student A in gym class on November 28, 2024 during period two, and that Student A should make his last day on earth “count.” The Pupil further threatened Student A’s family saying, “I’ll kill your whole family.” The Pupil admits to sending threatening texts and this issue is not in dispute.

43On November 28, 2024, Student A skipped gym class out of concern for his safety. He remained out of the school during period two, only entering the School to use the washroom farthest from the gym before attending class in the next period. When Student A was in the washroom, the Pupil entered the washroom with two of his friends, including Student C, who later testified. A confrontation occurred in the washroom between the Pupil and Student A during which Student A was injured. The confrontation ended when Teacher J.C., heard concerning noises from the washroom. Teacher J.C. entered the washroom, interrupting the confrontation, and subsequently escorted Student A to the Principal’s office where Student A made a report on the incident.

44Testimony from the Principal and video evidence presented, indicated that during period two, the Pupil was not in class and was wandering the School hallways with two friends including Student C. The video evidence is that the Pupil and his companions were checking in the School washrooms. According to the Principal, there are no cameras in the washrooms or the classrooms. The Principal in her testimony argues that the Pupil was actively looking for Student A as threatened in his text messages from the previous day. The Pupil in his testimony denies actively looking for Student A and testified that he had “cooled off” since the previous evening and had no intent to harm Student A.

45There is conflicting testimony from several sources regarding the number of people in the washroom at the time of the physical confrontation between the Pupil and Student A. The Pupil testified that when he entered the washroom and saw Student A there, he confronted him. Student A tried to leave the washroom and in passing the Pupil, Student A knocked the Pupil’s phone out of his hand. The Pupil responded by slapping Student A. The Pupil claims that Student A made a racial slur against him and made threats against the Pupil’s sister. Following the alleged racial slur the Pupil hit Student A. The Pupil claims that Student A swung at him but didn’t hit him. During this altercation, Student A’s glasses fell off. Student C admits to picking up the glasses and handing them to the Pupil. The Pupil admits to breaking the glasses and throwing them in the toilet.

46In his testimony, Student A admitted to accidentally knocking the Pupil’s phone out of his hand when trying to escape the washroom. Student A testified that the Pupil grabbed him by his shirt with both hands and pushed him into the wall, punching him in the back of his head and stomach. Student A testified that he did not try to defend himself, he hunched over, looking at the floor trying to protect his head. Student A denies pushing back against the Pupil or punching the Pupil. Student A testified he was afraid of the Pupil, based on the Pupil’s history of violent behaviour and reputation. Student A denied using any racial slurs during or before the washroom altercation and denied making any threats against the Pupil’s sister.

47Student C, the Pupil’s friend, when initially interviewed by the Principal denied hearing Student A make any racial slurs or threats against the Pupil’s sister. In his testimony at the Hearing, he testified that the Pupil told him prior to the altercation in the washroom that Student A made threats against the Pupil’s sister. Student C later testified that he heard Student A call the Pupil the “N” word in the washroom and threaten the Pupil’s sister. The Panel found Student C’s testimony inconsistent and contradictory and was left with a negative inference that Student C was modifying his testimony in an effort to support and minimize consequences faced by the Pupil.

48When describing the washroom incident during the Hearing, Student C stated that the Pupil confronted Student A in the washroom. Student A tried to push back against the Pupil. Student A knocked the phone out of the Pupil’s hands, following which the Pupil started slapping Student A. Student C testified that both the Pupil and Student A were throwing punches. He characterized the incident as a “fight.”

49In their testimony, both the Pupil and Student C stated that there was only the Pupil, Student A and Student C in the washroom. Testimony from Teacher J.C. who intervened noted that there were several students in the washroom. In her testimony, the Principal included statements from two other students who were in the washroom and witnessed the incident. The Principal’s contemporaneous notes from these interviews were admitted into evidence. One of the students interviewed stated that “a bigger student came in and repeatedly punched [Student A] in the head, face, shoulders and arms.” He also stated nothing was said before the hitting started. The student with the glasses [Student A] did not hit back. A second student interviewed by the Principal concurred that “the bigger student started hitting the student with the glasses who did not fight back.” The second student who was interviewed reported being scared by the incident.

50Following the intervention by Teacher J.C., the Pupil and Student C left the washroom. The Principal described video of the Pupil engaging in “high five” greetings with several peers outside the washroom. Student A was escorted by Teacher J.C. to the Principal’s office where he made a report on the altercation and where the Principal took photos of threatening messages from the Pupil on Student A’s phone. The Principal testified that Student A had visible bumps and scrapes on his face and was concerned about a concussion risk so she had Student A complete a concussion screening tool which raised concerns. Student A’s parents were called, and Student A was encouraged to seek medical attention. Student A did attend at the local hospital and was screened for concussion and advised to take the next day off school and monitor for signs of concussion. No medical reports were included in the evidence before the Panel.

51The Panel finds that with respect to the October 8, 2024 incident, the Pupil by entering a classroom during class, despite being told otherwise by the teacher, instigated a physical altercation with Student B.

52With respect to the November 27th threatening messages sent by the Pupil to Student A, the Panel finds that these messages were threatening and inappropriate, leading to Student A intentionally skipping his class the next day to avoid the Pupil. There is no dispute that the Pupil sent these messages.

53With respect to the November 28th physical altercation between the Pupil and Student A in the School washroom, the Panel finds the reports of the two witnesses who were not part of the interaction to be credible. The Panel is concerned that the testimony of both the Pupil and of Student C minimizes the role played by the Pupil as the aggressor in this incident when considered in the context of all the evidence, notably the Pupil’s text message of November 27th. The Panel finds that on the balance or probabilities, the Pupil did initiate an assault on Student A in the washroom, and that Student A was fearful of the Pupil and was actively trying to avoid a confrontation with the Pupil by attempting to leave the washroom. The Panel further finds that Student A was trying to protect himself as much as possible from injury while not actively fighting back. The Panel finds that this interpretation of facts is most consistent with reports of this incident by student witnesses who did not have an investment in managing their testimony.

54The panel accepts the testimony of the Principal that Student A experienced injuries because of this assault requiring medical attention.

55The Panel is particularly concerned that the Pupil’s actions on November 28, 2024 enacted the threats made by the Pupil in his text messages of November 27, 2024. While the Pupil testified that he was calmed down by November 28th and was not actively looking for Student A while roaming the halls of the School, the Panel cannot escape the reality that what occurred on November 28th is in essence what was threatened on November 27th. This suggests a premeditated element to the Pupil’s action that is very concerning to the Panel, and that undermines the Appellant’s arguments to follow that the Pupil’s ADHD is a mitigating factor and that the assault should be characterized as an impulsive act consistent with an ADHD diagnosis.

56The Panel finds the Pupil’s separate assaults of two students, in one case undeterred by a teacher’s presence and protestations, and in both cases while surrounded by peers, very concerning. Additionally, in the case of the second assault, the Pupil was aware, as per his testimony and that of Student C, that washrooms are a place in the School where there are no cameras present. The Panel is concerned that these two incidents in combination, represent an escalating pattern of behaviour.

57For the above reasons, the Panel finds that the Pupil did engage in activities that under section 310(1) of the Act and the School Board’s Code of Conduct justify a suspension and, following a hearing by the School Board, may justify an expulsion. Specifically, we find on a balance of probabilities that the Pupil did commit physical assault on another person that caused bodily harm requiring treatment by a medical practitioner as specified in section 310(1)3 of the Act and did engage in bullying or threatening behaviour toward another student contrary to the School’s Code of Conduct Policy.

58While infractions under section 310(1) of the Act are always serious enough for a suspension, they may not always be significant enough for a pupil’s expulsion from a school or an entire school board. In determining whether the Pupil’s expulsion was appropriate, and whether from the School only or all schools of the School Board, the Panel must consider the “mitigating factors” and “other factors” listed in sections 2 and 3, respectively, of Ontario Regulation 472/07 (the “Regulation”).

2. Are there any factors in [section 2](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) of [Ontario Regulation 472/07](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) that mitigate against the decision to expel the Pupil?

59Under section 2 of the Regulation, the Panel must consider whether the three factors set out under this section mitigate against the Pupil’s expulsion. The Panel finds that none of the three factors under section 2 are relevant and review each of these below.

Does the Pupil have the ability to control his behaviour?

60The Principal testified that based on her interviews with teachers, her own interactions with the Pupil and information in the Pupil’s Ontario Student Record (“OSR”), there was nothing that suggested that the Pupil could not control his behaviour.

61Evidence presented during the Hearing in reports from the Principal indicate that the Pupil did have a non-identified Individualized Educational Plan (“IEP”) and has a history of behavioural supports for conflict resolution and anger/aggression management beginning in September of 2013. In elementary school, his non-identified IEP has included Positive Behaviour Strategies. In 2017 his IEP was archived, but it was continued again in 2018 for special education support, to support with self regulation, concentration, and conflict resolution. According to the Principal’s January 22 Recommendations, (“Principal’s January 22 Recommendations”) to the Superintendent, these issues for the Pupil with anger/aggression management resulted in a total of 11 documented incidents of aggressive behaviours during the Pupil’s elementary school years.

62Despite the presence of this historical IEP, the Principal’s testimony and the documents submitted in evidence indicate that over the past several years the Pupil had been managing his anger/aggression effectively and there have not been any recent issues with anger/aggression on the part of the Pupil until this year.

63In the Appellant’s Application material and in the Pupil’s testimony, there is evidence that in May 2024 the Pupil was diagnosed with ADHD and was started on medication by his physician. The Appellant argued that the Pupil’s ADHD diagnosis and associated impulsiveness may be a mitigating circumstance contributing to the above incidents of aggression. The Appellant did not call any expert evidence from the Pupil’s physician or social worker to support this position. The Principal testified that in her experience ADHD is not marked by violence, and that the November 28, 2024 incident in particular is not consistent with impulsive aggression, instead it is more consistent with planned actions on the part of the Pupil.

64The Panel considered the above perspectives and evidence and based in large part on how the Pupil’s actions on November 28th appeared to be pre-meditated, and not an impulsive act. As well, the Pupil’s demonstrated ability to control his behaviour without the need for additional supports from the School over the course of the past several years, the Panel finds that find that the evidence presented does not support a finding that the Pupil could not control his behaviour related to his assaultive behaviour toward other students. For this reason, the Panel finds that an inability to control his behaviour due to ADHD is not a mitigating factor for the Pupil.

Does the Pupil have the ability to understand the foreseeable consequences of his behaviour?

65In the Principal’s January 22nd Recommendations, she addresses this question by stating that the Pupil’s “learning profile is such that there is no evidence that he does not have the ability to understand the foreseeable consequences of his behaviour.”

66During his testimony regarding the threatening social media text messages he received from the Pupil on November 27, 2024, Student A testified that the Pupil repeatedly requested that the conversation be moved to the Snapchat platform. The Panel notes that the Snapchat platform is one where conversations/messages are not retained. This request on the part of the Pupil suggests that he understood his threatening behaviour was inappropriate and that he may face consequences if it was revealed. The Panel also finds that this strongly suggests that the Pupil has an ability to understand the foreseeable consequences of his behaviour.

67None of the testimony from the Pupil during the Hearing suggested that the Pupil did not have the ability to understand the foreseeable consequences of his behaviour. The Panel notes that in his testimony the Pupil presented as intelligent, personable, and articulate, and that the Pupil has acted in a leadership role in the School where he appears to be looked up to as a member of the School’s football team.

68Given the above, the Panel finds that there is no evidence before it to suggest that the Pupil did not have the ability to understand the foreseeable consequences of his behaviour. For this reason, the Panel does not find this to be a mitigating factor for the Pupil.

Does the Pupil’s continuing presence in the School create an unacceptable risk to the safety of others?

69In the Principal’s January 22 Recommendations, she addresses this question by stating that, “Given the severe nature of threats and assault, in conjunction with his previous assault of another student on Oct 8, 2024, [the Pupil’s] continued presence in school creates an unacceptable risk to the safety of other students.”

70In considering whether the Pupil’s continuing presence creates an unacceptable risk to the safety of others, in addition to the Principal’s assessment above, the Panel considered evidence presented to it in Student A’s testimony that he was afraid of the Pupil because the Pupil had a reputation for engaging in physical altercations. The Panel also considered the statement from one of the student witnesses to the washroom assault indicating that they were scared by the assault. The Panel further considered the Principal’s evidence regarding the October 8, 2024 classroom incident that students had come forward indicating that they felt unsafe in the classroom following this incident, and that the teacher also felt unsafe.

71The Panel finds that a core requirement for students to feel safe in the School setting is for them to be safe in both supervised spaces such as the classroom and in unsupervised spaces such as the school washrooms. The Pupil’s actions in both settings have put the safety of these spaces in question. Furthermore, the apparently premeditated assault on Student A who was a student barely known to the Pupil raises questions in the Panel’s mind regarding the safety of all students in both the Pupil’s school and in other schools should the Pupil return to any school without addressing and resolving his anger/aggression issues.

72For the above reasons, the Panel finds that the Pupil’s continuing presence in the School does create an unacceptable risk to the safety of others. For this reason, the Panel finds that this is not a mitigating factor for the Pupil.

73Having found that none of the factors in section 2 of the Regulation mitigate against the decision to expel the Pupil, the Panel now considers the factors set out in section 3 of the Regulation.

Are there any factors in [section 3](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) of [Ontario Regulation 472/07](https://www.canlii.org/en/on/laws/regu/o-reg-472-07/latest/o-reg-472-07.html) that mitigate the seriousness of the activities for which the Pupil was expelled?

74Under section 3 of the Regulation, six additional factors must be considered “if they would mitigate the seriousness of the activity for which the pupil may be or is being suspended or expelled”. Below the Panel considers each of the six factors.

The Pupil’s history

75The Pupil began attending the current School in September 2023. Prior to this School, the Pupil attended another Secondary School from September 2022 to June 2023. According to School records, the Pupil transferred to the current School to attend a Special Hospitality program, however the Pupil was not taking any courses related to this program in the Fall 2024 semester during which these incidents occurred. Based on the Pupil’s testimony, the Pupil saw his transfer from the previous secondary school as more about his ability to participate on the football team at the current School.

76Prior to being at the current School, the Pupil attended a middle school in the School Board with Student A, the victim of the November 28, 2024 incident. According to testimony from both the Pupil and Student A, they did not know one another personally, but did interact on social media. According to Student A, he had “zero interaction” with the Pupil while at the current School prior to the washroom assault. When at the middle school together, Student A testified that his contact with the Pupil was limited to online chats on social media. Student A claimed there was no conflict between himself and the Pupil on the online chats. The Pupil agreed in his testimony that he and Student A had no in-person contact but disagrees about a lack of conflict in the relationship. The Pupil testified that his relationship with Student A was “not good” and “never cordial.” The Pupil claims that Student A in previous online chats was disrespectful to him and called him a “panda” which is a racial slur relating to the Pupil’s biracial ethnicity. In his testimony Student A agreed he had used that term in online chat and a photograph of a chat message was entered into evidence supported this allegation. The Appellant related the above history to whether the activity for which the Pupil was expelled was related to any harassment of the Pupil because of his race, or ethnic origin, which is a mitigating circumstance. This will be addressed in more detail below.

77While the above facts establish a context for the November 27 and 28, 2024 incidents between the Pupil and Student A, the Panel finds that the contact between the Pupil and Student A over a period of several years was relatively minimal. The Panel is of the view that any past racial slurs by Student A provide little justification for what appears to be a premeditated assault on Student A. The Panel is further of the position that words do not justify a physical assault as a response. As the Principal testified, there are many other avenues that the Pupil could have taken if another student had used racial slurs or made any threats regarding his sister, including approaching coaches, teachers, guidance counsellors or administrative staff to address his issues with Student A. Instead, the Pupil chose to engage in threats and physical aggression.

78For the above reasons, the Panel finds that there are no relevant factors in the Pupil’s history that are significant enough to mitigate the seriousness of the activities for which he was expelled.

Was a Progressive Discipline Approach used with the Pupil?

79The Principal, in her testimony and in the Principal’s January 22 Recommendations, notes that prior to the November 27 and 28, 2024 incident of threats and an assault in the washroom, the Pupil had a history of 12 previous incidents where the Pupil has been involved in physical conflict with others. This includes a ten-day suspension for the October 8, 2024 incident in the hallway and the classroom. She notes that as part of the process of re-entry following these previous suspensions, in elementary school the Pupil was supported by the Behavioural Teaching Assistant and his conflict resolution and anger/aggression management skills improved. As part of his re-entry plan from his suspension in October 2024, the Pupil received Guidance Counsellor support particularly to encourage him to attend classes regularly. This intervention included conversations with his parents about his attendance and courses.

80As part of his October 2024 suspension, the Pupil was offered the opportunity to attend the Board’s Fresh Start Program for suspended pupils where he could receive additional assistance and support regarding behavioural issues and anger/aggression management, as well as individualized academic supports and planning for his re-entry to the regular School. The Pupil declined to participate in the Fresh Start Program. In his testimony, the Student explained that he declined because the Fresh Start program had a reputation as being largely full of black or racialized students and was perceived in the black community as a “dumping ground” for black people.

81As evidenced by the October 2024 10-day suspension, and mandated Guidance Counsellor support, followed by the suspension and subsequent expulsion based on the seriousness of the November 28, 2024 incident, the Panel finds that a Progressive Discipline Approach appropriate to the circumstances was used and that this is not a mitigating factor affecting the decision to expel the Pupil.

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

82As reviewed above, the Pupil and Student C both testified that Student A made a racial slur towards the Pupil in the washroom, and historically. There is conflicting evidence as to whether this occurred. In any case, the nature of the physical aggression displayed during the November 28, 2024 incident is a disproportionate response, even if racial remarks had been uttered.

83Throughout the Hearing, the Appellant argued that a mitigating circumstance for the Pupil was that the School and the School Board was marked by a culture that failed to meet the needs of racialized students. In the cross examination of the Superintendent, these issues were explored, and he did acknowledge that there is a School Board report that there are significant disparities in suspensions along racial lines.

84In their testimonies, both Student C and the Pupil spoke of a culture in the school that they believe does not support racially diverse students. They indicated that because of this culture they were often reluctant to avail themselves of adult resources such as teachers and guidance counsellors who could assist them in resolving conflicts. The Pupil did acknowledge that he had some adult resources whom he felt he could trust, such as some coaches.

85In their testimony, both the Principal and the Superintendent argued that they did consider race and racial slurs as mitigating factors in reaching their decisions to expel the Pupil. In their view, any systemic or cultural issues related to race or harassment did not mitigate the serious nature of the November 28, 2024 washroom assault, and they remained concerned regarding the Pupil’s return to a regular school without intervention aimed at supporting the Pupil in better managing his anger and aggressiveness.

86The Panel accepts the Appellant’s representative’s submissions that racialization affects Black men in particular, and that they may be characterized as violent, leading to heightened monitoring and racial stereotyping. In this matter, the focus is on the Pupil’s actions. The evidence shows that he had access to various supports, including a guidance counsellor, graduation coach, social worker and his football coach.

87The Panel found that there was no evidence provided by the Appellant that clearly linked any systemic racial cultural issues at the School or the Board to the individual circumstances of the Pupil and that account for and mitigate the seriousness of the assault in the washroom.

88For the above reasons, the Panel finds that this factor did not mitigate against the seriousness of the Pupil’s activities.

How the suspension or expulsion would affect the Pupil’s ongoing education

89The Panel considered how the expulsion would affect the Pupil’s ongoing education. Testimony and documentary evidence from the Principal indicates that the Pupil incurred 74 unauthorized absences and 11 unauthorized lates during his Fall 2024 semester. Further, the Pupil was failing all four of his courses with grades between 20% and 35%.

90Since attending the Fresh Start Program following his expulsion, the Pupil testified he is attending regularly and making good progress and he has completed all of his credits for this semester. His courses include English, Math, Black History, and a social/emotional regulation component that the Pupil describes as helpful. The Pupil described the Fresh Start Program as “awesome.” The Pupil is also aware that he has an opportunity to take additional credits in the Program. The work the Pupil is doing in the Fresh Start Program has the potential to provide him with the supports needed to address and manage his anger/aggression issues, and to lay a solid foundation for his expressed desire to attend University afterward.

91Based on the above, the Panel finds that, with perhaps the exception of the Pupil’s ability to continue playing football for the School, there are no adverse consequences to the Pupil continuing to be expelled and attending the Fresh Start Program. In fact, the Panel finds that the Fresh Start Program offers many advantages to the Pupil, including a lower student-teacher ratio and supports that are not available at the School. The evidence shows that the Pupil has been doing well in this Program. For the above reasons, the Panel finds that this is not a factor that mitigates against the Pupil’s expulsion.

The age of the Pupil

92The Pupil is 16 years old, as he was when the incidents occurred. There was no evidence adduced by either party to suggest that the age of the Pupil had any mitigating effect.

Considerations in the case of a pupil for whom an IEP has been developed.

93This factor requires the Panel to take into account three separate subfactors where an IEP has been developed for a pupil: 1) whether the behaviour was a manifestation of a disability identified in the pupil’s IEP; 2) whether appropriate individualized accommodation has been provided; and 3) whether the suspension or expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct. Following a review of some additional information related to the Pupil’s IEP, the Panel will address each of these subfactors.

94The Pupil does not have an identification as an exceptional learning, but he does have a non-identified IEP, and has a history of behavioural supports for conflict resolution and anger/aggression management. In 2017 his IEP was archived but continued again in 2018 for special education support to support with self regulation, concentration, and conflict resolution. According to the Principal’s testimony, the Pupil’s IEP was reviewed and renewed annually including in 2024-2025.

Was the pupil’s behaviour a manifestation of a disability identified in his IEP?

95There was no disability identified in the Pupil’s IEP. The IEP primarily related to the provision of behavioural supports for conflict resolution and anger/aggression management. These issues were much improved from 2017 when the IEP was archived. The Pupil was diagnosed with ADHD in May 2024 and started on medications in July 2024. The Pupil testified that the Guidance department at the School was informed of this diagnosis during the 2024-2025 school term. The Panel has no evidence that the Pupil’s IEP was updated following this notification. The Principal testified that the Pupil was already receiving accommodations as part of his IEP that were appropriate for a diagnosis of ADHD including extra time on tests.

96The Principal testified that she did consider the impact of the Pupil’s recently identified ADHD as a mitigating factor. This is documented in her January 22, 2025 Report where she wrote that “During the meeting where [the Pupil] and his mother provided information about the assault in the washroom, [the Pupil’s] mother shared that [the Pupil] has a diagnosis of ADHD and had been experiencing sleep disruptions and has had a quick temper recently.” In her testimony she stated that she does not see the type of aggression and premeditated assault as characteristic of ADHD.

97The Principal further notes in her January 22, 2025 Report that the Pupil’s “learning profile is such that there is no evidence that he does not have the ability to understand the foreseeable consequences of his behaviour.”

98The Principal testified that in assessing the impact of the Pupil’s ADHD as a mitigating factor, she did not speak directly with the Guidance Counsellor who was informed by the family of the ADHD diagnosis. She did review notes from the Guidance Counsellor. She also testified that she did not speak directly with the Pupil’s Special Education Teacher.

99The Panel was concerned that the School staff did not more thoroughly explore the impact of the Pupil’s recent ADHD diagnosis. The Panel finds that it is conceivable there may have been aspects of the Pupil’s ADHD diagnosis that may have been a mitigating factor. The Panel notes that the Pupil testified to having difficulty sleeping since starting on medications for ADHD and that he was more irritable. It is conceivable that part of the Pupil’s anger issues may have been related to medication side effects. However, the Panel also takes note that the Appellant did not call any evidence from the Pupil’s physician, who made the ADHD diagnosis and who prescribed medications, that could confirm whether there was a link between the Pupil’s ADHD diagnosis or medication and his aggression that might mitigate the expulsion. The Panel also notes that although the Pupil is reported to be seeing a Social Worker for counselling, and the Pupil testified that he had also been affected by the deaths of two grandparents, the Pupil did not describe in his testimony how these deaths might mitigate the expulsion and the Appellant also did not call any evidence from the Social Worker that would provide any information regarding possible mitigating circumstances.

100In the absence of persuasive medical evidence from a medical practitioner or evidence from the social worker who had knowledge of the Pupil’s situation, that the Pupil’s recent ADHD diagnosis may have been a mitigating factor, the Panel finds that there is insufficient persuasive evidence that the pupil’s behaviour is a manifestation of a disability identified in his IEP, and this is not a mitigating factor.

Whether individualized accommodation has been provided

101While individualized accommodation was provided as part of the Pupil’s original IEP and did continue, it is not clear to the Panel whether individualized accommodation has been provided for the recently diagnosed ADHD. The ADHD appears to be an emerging issue that was only identified to the School in the Fall semester during which these incidents occurred. As noted above, the Panel is concerned that the impact of ADHD on the Pupil’s education and the specific accommodations required to address the Pupil’s ADHD have not yet been established. The Panel has no evidence that the Pupil’s doctor has provided recommendations to the School for accommodations or that the School has revised and updated their IEP to implement any recommendations.

102The Panel notes that the Pupil had been doing well until recently in terms of his behaviour. It appears that some factor or combination of factors has led to a change in the Pupil’s ability to manage his anger. The Panel is of the view that the reasons for this change need to be more thoroughly explored.

103Despite the above concerns, the Panel does not fault the School for not having time to more fully explore the impact of the ADHD diagnosis on the Pupil. The November 28, 2024 washroom assault was highly concerning, and evidence suggests that it was pre-meditated. The Pupil’s actions have had an impact on the safety and wellbeing of Student A, and the school community at large. For the above reasons, the Panel finds that any lack of individualized accommodation is not a mitigating factor in the decision to expel the Pupil.

Whether the expulsion is likely to result in an aggravation or worsening of the pupil’s behaviour or conduct

104The Panel notes that the Pupil is doing well in the Fresh Start Program, is attending regularly, and is being successful in completing his credits. The Pupil testified that he also has been learning communication styles and conflict resolution. The Principal testified that the School Board does not have the resources in the regular school system to provide the Pupil with the supports he needs to address his anger/aggression management issues that the Fresh Start Program has. In their written closing submission, the Respondent referred to the testimony of the Superintendent that if the Pupil continues to be successful in the Fresh Start Program, he may be considered for placement in a regular secondary school in September 2025.

105The Panel finds that at this point in time, the expulsion and the Pupil’s continued participation in the Fresh Start Program is not likely to result in an aggravation or worsening of the Pupil’s behaviour, but rather it is meeting the Pupil’s needs. The Student is excelling in the Fresh Start Program and in this Program, he has access to supports and resources that he would not have at the School, if the expulsion were overturned. The Pupil’s time in the Fresh Start Program is an opportunity for the Pupil to develop skills to better manage his anger/aggression issues. The Panel finds that this time may also be valuably used for the Pupil and school staff to further explore the impact of the Pupil’s recent ADHD diagnosis and to develop a plan for appropriate accommodations for the Pupil on his return to a regular school program; potentially in September 2025.

106Accordingly, the Panel does not find that this factor is relevant toward mitigating the seriousness of the activities for which the pupil has been expelled.

CONCLUSION

107Having found that the Pupil did engage in activities that under section 310(1) 3 and 310(1) 8 of the Act and the School Board’s Code of Conduct, the School was mandated to suspend the Pupil, with a possibility of expulsion.

108The PaneI considered the three mitigating factors under section 2 of the Regulation and found that none applied in this Appeal.

109The Panel considered the six other factors under section 3 of the Regulation. While the Panel maintained concerns about the thoroughness of the School’s assessment of the impact of the Pupil’s recent diagnoses of ADHD, the Panel found that these concerns did not mitigate the decision to expel the Pupil from all schools of the School Board.

110For the reasons above, and further to the CFSRB’s Order dated May 1, 2025, the CFSRB confirms the expulsion of the Pupil from all schools of the School Board.

confidentiality order

111Pursuant 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.