CITATION: K.W v. Toronto Catholic District School Board, 2018 ONSC 2794
DIVISIONAL COURT FILE NO.: 599/17 DATE: 20180508
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ R.S.J, SWINTON and LEMAY JJ.
BETWEEN:
K.W., a minor, by his litigation guardian C.E and C.E.
Applicants
– and –
TORONTO CATHOLIC DISTRICT SCHOOL BOARD and MICHAEL CACCAMO
Respondents
Andrea Luey and Jesse Mark for the Applicants
Nadya Tymochenko and Baktash Waseil for the Respondents
HEARD at Toronto: April 17, 2018
WARNING
THIS IS A PROCEEDING WHICH INVOLVES REFERENCE TO PROCEEDINGS UNDER THE YOUTH CRIMINAL JUSTICE ACT, 2002, c.1.
THESE PROCEEDINGS ARE SUBJECT TO ss. 110, 111 AND 138 OF THE ACT WHICH PROVIDE:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published)…,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
The Court
Overview
[1] The applicants, a Grade 12 student in a school operated by the Toronto Catholic District School Board (the “Board”) and his legal guardian, brought this application for judicial review to challenge the decision of the Board to transfer him to a new school at the beginning of the 2017-18 school year. The applicants argue that this transfer is, in its effect, disciplinary, and it is beyond the power of the Board to make such a transfer.
[2] For the reasons that follow, we would dismiss the application, as the transfer was not disciplinary in nature, and it was a reasonable exercise of the Board’s authority to transfer students in the circumstances of this case.
Facts
[3] The applicant, K.W., is currently finishing Grade 12 in one of the Board’s schools (“School 2”). He is now 18 years old and he is Black. He was a star athlete and received athletic awards at his previous school (“School 1”).
[4] On April 28, 2017, K.W. was one of three Grade 11 students involved in an assault on M.V., a Grade 10 student. All the students then attended School 1. It had been K.W.’s school from Grades 9 through 11. The victim, M.V., was hit and punched, and the vice-principal who found him said that he was visibly shaken, had visible scratches and bumps on his body, and his clothing was ripped. M.V. also advised that his glasses had been taken by K.W. and thrown away.
[5] On April 30, 2017, the principal of School 1 was advised by police that the perpetrators were not allowed to return to school. On May 2, 2017, she sent a letter to K.W.’s guardian, C.E., explaining that K.W. had been placed on a 20 day administrative suspension so that the principal could complete an investigation. During that investigation, K.W. admitted to the principal that he had pushed and shoved M.V. and taken his glasses and thrown them. Other witnesses confirmed M.V.’s version of events.
[6] The principal also met with M.V. and his mother, both to confirm what had happened and to ask M.V. whether he would be comfortable with having K.W. back at School 1. The principal concluded that allowing K.W. back into the school would pose a risk to the physical and/or mental well-being of M.V. In addition, M.V.’s mother expressed fear at the possibility of K.W. returning to School 1.
[7] In a second letter, sent on May 9 after the investigation was completed (but dated May 2, 2017), the principal confirmed that she was reducing K.W.’s suspension to five days. Part of the reason for the reduction in the penalty was the fact that K.W. did not have a significant prior disciplinary history.
[8] In terms of the other two students involved in the incident, one was expelled from the Board, and the other one was expelled from School 1. One of these students was an Italian-Canadian and one was Portuguese-Canadian.
[9] The principal also decided to transfer K.W. pursuant to the Board’s Fresh Start Policy. Attached to the second letter was the Fresh Start acknowledgement form that indicated that a Fresh Start was being imposed on K.W. The letter itself did not address the issue of the Fresh Start nor state that an appeal could be taken from that decision, although the Fresh Start acknowledgement form states that a parent can appeal a Fresh Start to a superintendent.
[10] The next day, the principal was advised of a second, unrelated allegation against K.W. Based on this allegation, the principal held K.W. out of school pending the investigation of this incident. This investigation was concluded on June 13, 2017, and he was cleared of any wrongdoing. However, from shortly after the initial suspension at the end of April to the end of the school year, K.W. was enrolled in the Board’s Transition Intervention Program for Suspended Students (referred to as “TIPSS”). This program allowed him to complete his coursework for the 2016-2017 school year.
[11] K.W. had been charged with robbery as a result of the April 28 incident. On August 17, 2017, he entered into a peace bond and the charge was withdrawn. This peace bond prohibited K.W. from communicating with M.V. directly or indirectly except for purposes of the Education Act.
[12] In the summer of 2017, K.W. was mailed a timetable for School 1, apparently in error. He attended on the first day of school and met with his guidance councillor. Later that same day, K.W. was told by the new principal of School 1 that he would not be permitted to attend at the school as he had been given a Fresh Start. This decision was appealed, and an appeal hearing before Superintendent Michele Antonio Caccamo (the “superintendent”) was scheduled for September 20, 2017.
[13] K.W. did not attend school between September 5, 2017 and September 20, 2017. At the appeal hearing on September 20, 2017, K.W asked to attend the Board’s TIPSS program, and he was re-enrolled in this program until October 4, 2017. He began to attend School 2 on October 24, 2018 in the same academic program in which he was enrolled at School 1. Both schools are in the same school district.
The Appeal
[14] At the appeal, K.W. and C.E. were represented by a lawyer (not counsel on this appeal). Paul Matthews, a lawyer with the Board, was also present.
[15] The applicants’ counsel provided the superintendent with an appeal book, including a summary of their legal position. A written submission was provided by K.W. and C.E.’s then counsel. The superintendent also heard from K.W., his guardian C.E., K.W.’s older brother, and Zazana Akande, a community leader. No questions were asked by either the superintendent or Mr. Matthews. The submissions at the hearing focused mainly on allegations of procedural unfairness and racial profiling. A great deal of time was spent in the hearing on the allegation being advanced by K.W. and C.E. that the decision to transfer had been made because K.W. was Black.
[16] K.W. spoke of the impact of a transfer on him, largely because of the Ontario Federation of Secondary School Athletic Associations (“OFSSAA”) Transfer Policy. It prohibits schools from including students on their school team rosters who have transferred from another school within the last twelve (12) months. While there are exceptions to the transfer policy, it is clear that K.W.’s circumstances would not be caught by them. In other words, for the 2017-2018 school year, K.W. is not permitted to be on school sports teams at School 2 if he was on the school team at School 1.
[17] K.W. did not discuss the incident, and he was asked no questions about it. From the superintendent’s notes, it does not appear that K.W. expressed remorse for what he had done, although he said something to the effect that it had affected him a lot, and he began to cry. At the appeal hearing, K.W. and C.E.’s counsel never argued that K.W. did not participate in the incident. C.E.’s affidavit for this court proceeding sets out what she understood to be K.W.’s version of events: he was told there was a fight about to start, and when he went outside the school, he was pushed by M.V. and in response, he removed M.V.’s glasses and threw them on the ground.
[18] After the proceeding was concluded, the superintendent consulted with the principal who had recommended the transfer. We note that much of the information that he obtained from the principal would have already been available in the records that were before the parties at the appeal proceeding.
[19] In a letter dated September 29, 2017, the superintendent advised the applicants that he was not prepared to let K.W. return to School 1 because of concerns about M.V., the victim. In making this decision, he relied on the Board’s Fresh Start Policy and its Victims’ Rights Policy. He also found that the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 did not apply to the proceeding before him. Finally, he concluded that there was no evidence that K.W. was given a Fresh Start because he was Black.
[20] As a result of the Superintendent’s decision, the applicants commenced this application for judicial review on October 16, 2017. A motion for a stay was denied, and so K.W. has continued to attend School 2.
The Issues in this Application
[21] The applicants raise three issues.
• First, they argue that the Board lacks jurisdiction to impose a non-voluntary school transfer on a student for discipline purposes pursuant to its Fresh Start Policy.
• Second, they argue that the applicants were denied procedural fairness in the appeal process before the Superintendent.
• Third, they argue that the decision of the Superintendent was unreasonable.
Issue No. 1: Does the Board lack jurisdiction to impose a non-voluntary transfer on a student for discipline purposes pursuant to its Fresh Start Policy?
The Board’s Fresh Start Policy
[22] A “Fresh Start” is defined by the Board’s policy as:
A Fresh Start is generally defined as a non-voluntary or unusual movement of a student to a new school within the school year or at the end of a semester. Fresh Starts can be considered as a response to TCDSB Victim’s Rights Policy (S.S. 13), court conditions imposed by the Criminal Justice System for an incident for which the student was not expelled, or other special circumstances as approved by the superintendent of the student’s school.
[23] The purpose of the policy is to ensure that students feel safe at school, and that students who are subject to a Fresh Start are provided with a successful transition. The policy sets out mechanisms to implement a Fresh Start. The Fresh Start Policy does not contain a specific appeal procedure, but the Board permits appeals of involuntary Fresh Start decisions.
[24] It should be noted that an involuntary Fresh Start decision does not appear on a student’s Ontario Student Record (“OSR”), and is not counted as discipline by the Board.
[25] In addition, the Board has adopted a Victim’s Rights Policy, and it is referred to in the Fresh Start Policy above. The Victim’s Rights Policy applies where a serious incident causes harm, either physical, emotional or psychological. It requires the school principal to first separate the victim from the person who may have caused the harm. Then the principal contacts the parents/guardians of the parties involved in the incident. The principal must conduct an investigation to consider whether the separation of the victim from the person who caused the harm should continue for a longer period. The Victim’s Rights Policy sets out a list of factors for the principal to consider in making this decision.
[26] A key portion of the Victim’s Rights Policy reads:
- Whenever a choice must be made as to which of the actual or intended victim, or the student(s) who may have caused the harm, must be transferred, generally (though not always), it will be the student(s) who may have caused harm who will be required to transfer to another school. This transfer is facilitated through the Fresh Start process.
The Applicants’ Position
[27] The applicants argue that the Board has no authority to impose a non-voluntary transfer for disciplinary purposes. In their factum, they argue that the Fresh Start Policy is ultra vires, because the Board cannot transfer a student for disciplinary reasons. In oral argument, they also submitted that the Board cannot transfer a student when either a suspension or expulsion has already been applied to the student.
[28] The applicants submit that the Fresh Start Policy must be considered in light of the discipline provisions of the Education Act, R.S.O. 1990, c. E.2 (the “Act”) and O. Reg. 472/07, Behaviour, Discipline and Safety of Pupils. Part XIII contains a comprehensive framework for the imposition of discipline in the form of suspensions, expulsion from own school and expulsion from the Board. Among other things, the legislation provides for the types of activities that may lead to suspension or discipline, factors that must be considered, notice and time limit requirements, appeal mechanisms, and participation requirements.
The Standard of Review
[29] Both parties are agreed that the standard of review is correctness, as the jurisdiction of the Board to adopt the policy is at issue. In other words, this is a case of vires.
[30] This was the standard applied by the Divisional Court in K.B. v. Toronto District School Board, 2008 6875 at para. 34.
The Authority of the Board to adopt the Fresh Start Policy
[31] As set out above, Part XIII of the Act deals with discipline of students. Major amendments to that part were made in 2000, and further amendments occurred in 2008 and 2012.
[32] However, there are other parts of the Act that must also be considered in this application. Paragraph 265(1)(m) prescribes the duty of a principal “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 in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.” The Board submits that this provision confers the power to transfer a student to another school.
[33] Notably, though, Policy/Program Memorandum No. 145 of the Ministry of Education (dated December 5, 2012) states that the “exclusion provision” in s. 265(1)(m) is not to be used as a form of discipline (p. 5). However, the Policy also contemplates non-disciplinary transfers to preserve school safety (at p. 10). The Policy states, “In cases where the transfer is necessary to protect a student, it is preferable that the student who has been harmed is not moved.”
[34] Relevant, too, is s. 169.1 of the Act that requires the Board to “develop and maintain policies and organizational structures” that promote goals set out in the section, including the promotion of student achievement and well-being. The Board points out that the discipline provisions in Part XIII of the Act do not address the situation of the victim in the case of an assault or bullying. Protection of the victim is addressed through the Victim’s Rights Policy as well as other policies such as Fresh Start, which were developed in accordance with this provision.
[35] We see nothing in the Fresh Start Policy that suggests it was designed to impose non-voluntary transfers for disciplinary reasons. There is nothing in it to suggest that its purpose is disciplinary. The Fresh Start Policy is one of the Board’s suite of policies that deal with the management of student behaviour and student relations in the classroom and in schools. It is focused on student achievement and the protection of victims, and is consistent with the policies of the Ministry of Education.
[36] The applicants also submit that the Fresh Start Policy contravenes s. 32 of the Act, which provides that every person has the right to attend a school in a school section, separate school zone or secondary school district, as the case may be, in which the person is qualified to be a resident pupil. This section has been interpreted to mean that a student has a right to attend a school, but not the right to attend a particular school (see, for example, K.B. (Litigation Guardian) v. Toronto District School Board (2008), 2008 6875 (ON SCDC), 290 D.L.R. (4th) 66 (Ont. Div. Ct.) at paras. 48-49).
[37] When the provisions of the Act are taken together with PPM 145, we conclude that the Board had the authority to adopt the Fresh Start Policy which, on its face, is designed to promote the safety and well-being of students and is not meant to be punitive in nature.
Was the application of the Fresh Start Policy a form of discipline in this case?
[38] The applicants, in oral argument, conceded that they were not arguing that the Board could never impose an involuntary transfer. We accept that concession because of the fact that in 2007 settlement documents between the Ontario Human Rights Commission and the Minister of Education, transfers were listed in the forms of progressive discipline and distinguished from suspensions and expulsions. Paragraph 10(d) states,
The Ministry believes in the concept of progressive discipline in order to avoid suspensions and expulsions and encourages school boards to apply these strategies, including but not limited to: in-school detentions, peer mediation, restorative practice, referrals for consultation, and/or transfer” (emphasis added).
[39] As a result, it is clear that discipline can include a transfer.
[40] However, they submitted that if the discipline provisions in Part XIII were engaged with respect to a particular student, then the Fresh Start Policy can never be used to transfer the student. In other words, once the principal imposed a five day suspension on K.W., there was no authority to implement a Fresh Start transfer, because Part XIII “covers the field” in respect of disciplinary transfers.
[41] We reject this argument. The applicants ignore the different purposes of the discipline and the transfer provisions. The discipline provisions in Part XIII of the Act focus on the student who has committed some form of misconduct. The impact on a victim does come into consideration – for example, the risk to the victim of the offender’s return to school is a factor to be considered. However, a decision under Part XIII is disciplinary in nature, with the decision based on the appropriateness of a suspension or expulsion for the misconduct committed by a particular student, taking into account considerations that also include prior discipline and the gravity of the conduct. The discipline sanctions are recorded in the student’s O.S.R.
[42] In contrast, the Fresh Start Policy is not disciplinary in nature, and a transfer is not recorded in the student’s O.S.R. One of its major purposes is to protect victims and to ensure school safety, by moving a student who is likely to pose a risk of harm to the victim or the community. That harm could be either physical or emotional.
[43] The applicants suggest that the Board is acting improperly, given that s. 3 of Regulation 474/00, Access to School Premises, no longer allows a principal to remove an enrolled student from his/her school because of amendments effective in February 2008, and that regulation is referenced in the Fresh Start Policy.
[44] It is true that the “cross references” section in the Fresh Start Policy refers to Regulation 474/00. So, too, does it refer to other sources, including the Ministry’s Policy/Program Memorandum 145, Progressive Discipline and Promoting Positive Student Behaviour. In our view, nothing turns on the cross-reference to the regulation in the policy.
[45] In conclusion, the Fresh Start Policy is a valid exercise of the Board’s authority to develop policies to promote student well-being. Pursuant to that Policy and a principal’s powers in s. 265, a principal can impose a non-voluntary transfer. In the present case, there is nothing in the record or the affidavit evidence to establish that the transfer of K.W. was made for disciplinary reasons or that it was punitive in nature.
Issue No. 2: Were the applicants denied procedural fairness in the appeal proceeding before the Superintendent?
[46] The applicants argue that they were denied procedural fairness in the appeal meeting with the superintendent. They rely on the factors in Baker v. Canada (Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 that determine the level and scope of the procedural fairness to be accorded in a particular matter, and they argue for a high level of procedural fairness.
[47] There is no doubt that the superintendent’s decision to uphold the principal’s decision to transfer K.W. is an important one to K.W., as he was moved from a school where he had been a student for a number of years, where he had his friends, and where he had excelled as an athlete on school teams. Given the importance of the decision, the applicants submit that they had legitimate expectations that they would receive a process similar to that provided in Part XIII of the Education Act.
[48] We disagree. The decision of the superintendent was not a disciplinary one that might result in a sanction that would be part of the student’s record. The decision to transfer was administrative in nature. Given the impact on K.W., the superintendent had an obligation to give the applicants an opportunity to be heard. He met that obligation. K.W. and his family members, as well as a community leader, presented their views to the superintendent. They had the assistance of a lawyer, and they turned down an offer of an adjournment in order that further documents could be obtained.
[49] The applicants complain that the hearing was not conducted in an adversarial manner, as the principal was not present and she could not be cross-examined. However, this was not an adversarial process between the applicants and the principal or the Board. Rather, the superintendent was required to make a decision about K.W.’s transfer, given the concerns about the future well-being of M.V. as well, who was still a student at School 1. The superintendent’s task was to gather information from the principal (who explained her concerns for M.V.’s well-being) and the applicants and then come to a decision on the transfer, taking into account the information before him, the legislation and the Board’s policies.
[50] The applicants did not need to cross-examine the principal. K.W. had been involved in the assault on M.V., and he was disciplined for that role. He had admitted to the principal that he was involved, and he did not appeal the five day suspension.
[51] We see nothing improper in the way in which the superintendent conducted the hearing. We also agree with his conclusion that the Statutory Powers Procedure Act did not apply, given the terms of s. 3(1) of that Act.
[52] We do not accept the argument that the applicants did not have proper notice. They were offered an adjournment when they raised an issue about disclosure, and they refused that offer. We are satisfied that they knew the issues to be addressed from correspondence from the principal and a meeting between her and K.W.’s guardian in early May 2017.
[53] Finally, we reject the suggestion that there was a reasonable apprehension of bias. There is no evidentiary basis for this allegation.
[54] In conclusion, we reject the argument that the applicants were denied procedural fairness.
Issue No. 3: Was the decision of the superintendent reasonable?
[55] The parties agree that the superintendent’s decision is subject to judicial review on a standard of reasonableness. Deference is owed to the decision of a principal or superintendent with respect to the advisability of a student’s transfer from a particular school.
[56] Had the applicants established that the transfer imposed on K.W. was, in fact, disguised discipline, that would likely render the decision unreasonable. However, there is nothing in the record to establish that this transfer was made for disciplinary reasons.
[57] The applicants’ counsel submitted to the superintendent that K.W. had been exonerated of the charge of robbery, was wrongly charged in the first instance, and that he had been subject to racial profiling. Counsel also argued that School 1 denied K.W. natural justice and reasonable notice of its decision, and that K.W. had a legal right to attend his former school.
[58] The superintendent gave written reasons for upholding the transfer. He stated that he was satisfied, based on the evidence, that K.W. and the two other students had assaulted M.V. He noted that K.W. never argued, in the appeal meeting, that he had not participated in the assault.
[59] The superintendent referenced the Victim’s Rights Policy, and accepted the opinion of the principal that K.W.’s presence at School 1 “would pose a risk to the emotional and psychological well-being of the victim.”
[60] He examined in detail the argument that K.W. had been given a Fresh Start because he is Black, and he rejected that argument. We note that the issue of racial profiling has not been advanced before the Divisional Court.
[61] In our view, the decision of the superintendent is within a range of possible, acceptable outcomes, given the facts and the law. The applicants, in their submissions, focus on the harshness of the transfer, given the impact on K.W.’s life and athletic aspirations. However, the superintendent had to consider the impact on M.V., as well as K.W. He had concerns about the well-being of M.V. if K.W. was present in the school. As counsel for the Board accurately stated, the concern about K.W.’s presence in the school is not limited to a risk that he will cause physical harm. It was reasonable for the superintendent to be concerned about the psychological impact on M.V. if K.W. were in the same school. M.V. was entitled to a safe and comfortable environment in which to pursue his education. Accordingly, the superintendent chose to uphold the transfer of K.W. in accordance with the Victim’s Rights Policy.
[62] The fact that the peace bond that resulted from the criminal proceedings permitted contact between K.W. and M.V. for purposes of the Education Act does not render the superintendent’s decision unreasonable. The peace bond did not determine whether K.W.’s return to School 1 would be consistent with Board policy and the principal’s duty to ensure student achievement and well-being.
Conclusion
[63] For these reasons, the application for judicial review is dismissed. The Board does not seek costs.
___________________________ Morawetz R.S.J.
Swinton J.
LeMay J.
Released: May 8, 2018
CITATION: K.W. v. Toronto Catholic District School Board, 2018 ONSC 2794
DIVISIONAL COURT FILE NO.: 599/17 DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ R.S.J., SWINTON and LEMAY JJ.
BETWEEN:
K.W., a minor, by his litigation guardian C.E and C.E.
Applicants
– and –
TORONTO CATHOLIC DISTRICT SCHOOL BOARD and MICHAEL CACCAMO
Respondents
REASONS FOR JUDGMENT
The Court
Released: May 8, 2018