ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 76665/12
DATE: 20120127
B E T W E E N:
W.W., W.M.W., by his litigation guardian W.W., K.K. AND P.K., by his litigation guardian K.K.
Stephen J. Moreau, for the Applicants
Applicants
- and -
LAKEFIELD COLLEGE SCHOOL, PAUL HICKEY, AND SARAH MCMAHON
Christopher J. Matthews, for the Respondents
Respondents
HEARD: January 24, 2012
REASONS FOR DECISION
LAUWERS J:
[ 1 ] The applicants M.W. and P.K. were 17 year-old grade 12 students at Lakefield College School (“Lakefield”). They were caught smoking marijuana and were summarily expelled. They, and their fathers as litigation guardians, seek an order reinstating them immediately as students along with ancillary terms. The applicants assert that the court has jurisdiction under section 4 of the Judicial Review Procedure Act , R.S.O. 1990 c. J. 1 as amended (JRPA), or as a matter of ordinary contract law leading to an injunction.
[ 2 ] The respondents assert that the contract between the parents and Lakefield, which the parties entered into freely, not only permits but compels the expulsions.
[ 3 ] This is a hard case. I have considered the submissions carefully and anxiously. I am especially troubled by the dramatic impact of the expulsions on these particular students. The punishment is harsh, and many would say unduly harsh. Nonetheless, for the reasons set out below I dismiss the motion.
The Factual Context
[ 4 ] The basic facts are not disputed. Lakefield is a private school. The applicant students were in Grade 12. The courses are year-long, unlike courses at most Ontario high schools which are semestered. The students both have learning disabilities and have benefitted greatly from Lakefield’s renowned services in the areas of their exceptionalities. The students lived in residence. The annual fees are more than $50,000.00.
The Events at Issue
[ 5 ] At about 7:15 p.m. on Sunday, December 18, 2011 Garret Hart, the Residential Head of House for the residence in which the students lived, was doing his evening inspection. He smelled marijuana smoke and caught the students. Both immediately admitted to smoking the marijuana, to owning it with another student, and to possessing the associated paraphernalia.
[ 6 ] Mr. Hart, Fr. John Runza, Assistant Head – School Life, and another staff member investigated from 8:30 p.m. to 11:00 p.m. The purpose of the investigation was not to confirm the admitted misconduct of P.K. and M.W. but to discover whether other students were involved. Five students were implicated. Staff decided not to call the students’ parents that evening. The calls were made to the parents after 8:30 a.m. on December 19, 2011.
[ 7 ] The interim Head of School, Sarah McMahon, was told about the events early on December 19, 2011 by e-mail. She met with the five students individually. Later Ms. McMahon and the chaplain, Fr. Runza met with Mr. K. when he came to pick up P.K. at the school, since the boys were asked to leave. Ms. McMahon deposed:
I said that I would review the policy and that a final accountability would be determined as soon as possible. Mr. K. then gave us his comments. He asked me to consider the situation thoroughly. He questioned the effectiveness of expulsion. He provided us with his views on this subject in great detail and…advocated for disciplinary measures short of expulsion.
[ 8 ] On Tuesday, December 20, 2011 Ms. McMahon spoke with both of P.K.’s parents for about an hour by telephone. She advised them that since P.K. had breached the on-campus drug policy he was required to withdraw from the school- that is, he was expelled. P.K.’s parents sought a lesser penalty and wanted the matter to be handled by the Board of Directors.
[ 9 ] Ms. McMahon spoke to Mr. W. on December 19, 2011 by telephone. She spoke to him again on December 20, 2011 and advised him that M.W. had breached the on-campus drug policy and was required to withdraw from the school. She conveyed the same information to Ms. W. later that day.
[ 10 ] Ms. McMahon told Paul Hickey, the Chair of the Board of Directors of Lakefield about the incidents on December 19, 2011. On December 21, 2011 Mr. K. called Mr. Hickey and read to him a prepared statement that Mr. K. forwarded to him by e-mail on December 26, 2011 setting out his position, which is largely reflected in the substantive arguments advanced by the applicants in this motion.
[ 11 ] In light of the significant and “rare” expulsion of five students at once, Mr. Hickey advised the Board by e-mail on December 23, 2011. The Board had a conference call meeting on January 6, 2012 in which, according to the Affidavit of Mr. Hickey, the evolution of the zero-tolerance policy was discussed. The Board “unanimously agreed that there was no reason for it to interfere with the Interim Head of School’s decision to expel, or to change the school’s zero-tolerance policy for on-campus drug possession or consumption.”
[ 12 ] Neither the parents nor the students were told about the conference call or invited to participate. Mr. Hickey sent a letter to the parents advising them of the Board meeting and the outcome.
Lakefield’s Discipline Policy
[ 13 ] Lakefield’s Discipline Policy is set out in the “School Life Guide” that forms part of the contract between the parents and Lakefield. There is a six-page “Policy on Tobacco, Alcohol, and other Drugs.”
[ 14 ] The introduction to the Policy states:
The school acknowledges that the use of alcohol and other drugs is prevalent in today’s society and that students are most likely to experiment with them during their adolescent years, a great deal of which will be spent at school. LCS also recognizes the significant increased risk and the negative influence of drug and alcohol use on a student's ability to achieve and to meet the objectives of the school and, therefore, its responsibility to provide clear policy statements and strategies for the school community.
With the creation of these policies and procedures for dealing with alcohol, tobacco, and other drug use, the school wishes to establish and maintain a disciplined, yet helpful and caring approach, with the understanding that certain offences will not be tolerated .(Emphasis added.)
[ 15 ] The Policy speaks in terms of “accountability” and sets out the penalties for misconduct. It is nuanced and there is ascending discipline for most matters. Misconduct on campus is treated more seriously than misconduct off-campus. For example, for tobacco use on campus the first offence results in a warning and the student being “gated to campus for (3) days”. The second offence results in the student being sent home for three days and subsequent offences may lead to expulsion. The off-campus possession/use for a student who is “not of age” is less severe. With respect to alcohol possession or use off-campus, the student is liable for expulsion from the school for the third offence. On-campus possession or use of alcohol can result in “either suspension or expulsion,” as can distributing alcohol to other students.
[ 16 ] The next most serious offence is the non-medical use of narcotics and other drugs. Off-campus use results in the suspension of the student. For a subsequent offence the Policy states plainly: “The student will be expelled from the school.”
[ 17 ] But the most serious offence is possession or consumption of drugs on campus. The policy states:
Other Drugs
The non-medical use of narcotics and other drugs is not legal in Canada. Simple possession or use of drugs is a serious criminal offence. In addition, anyone who gives or sells drugs may be guilty of the more serious offence of “trafficking in narcotics”.
POLICY STATEMENT
The use, possession or being under the influence of illegal drugs is prohibited while on school property, at event’s sanctioned by the school, or during leaves when a student is under the care of the school acting in “in loco parentis.” ...
ACCOUNTABILITY FOR POSSESSION /CONSUMPTION
OF DRUGS ON SCHOOL PROPERTY
This offence is considered to be very serious. Violators will be expelled from the school . Such actions allow for increased accessibility and pressure to experiment with drugs.(Emphasis added.)
[ 18 ] This is described as the “zero-tolerance” policy for illicit drug use on campus.
[ 19 ] The School Life Guide provides:
Expellable offences are dealt with by the Assistant Head: School Life, the Head of School, the student, and his/her parents. The Standards Committee is not involved in deciding whether or not a student should be expelled from the school.
[ 20 ] The Policy has been in place since 2000. It was instituted as a result of a report to the Board of Directors by the “Substance Use Review Committee” which is composed of staff and students. The recommendation adopted was:
... 7. Revised accountability for on-campus drug use or possession of drug on-campus to read: “Students using or in possession of drugs on school property will be expelled from the school”.
Rationale
The current policy states that a student ‘may be liable for expulsion’. The students’ interpretation is that there is room for discussion and that they will likely be suspended first. From input from both students and faculty, there is a resounding demand for less tolerance and stricter accountability in this area. The above makes it non-negotiable and communicates a zero-tolerance for possession or use of drugs on school property.
[ 21 ] The Policy has been administered consistently since its inception and students have been expelled without exception. The record establishes a decline in the number of expulsions over the years with a notable exception of the expulsion of the five students in 2011.
[ 22 ] Lakefield sees the zero-tolerance drug policy as a selling feature of the school.
Knowledge of the Policy
[ 23 ] The applicants concede that the students were well aware of the zero-tolerance drug policy and its penalty provisions. The evidence is that the existence of the Policy was brought to the attention of the students on a number of occasions.
[ 24 ] There is a factual dispute about whether the expulsion penalty was brought to the attention of parents. Ms. McMahon states in her Affidavit:
- I note that parents are informed of LCS’ rules, standards and expectations in the School Life Guide issued at the beginning of each school year. Fr. Runza specifically informs all new parents about the School Life Guide at new parent receptions and on their respective registration days. Fr. Runza also runs through the website, which includes the School Life Guide. Parents are also reminded in late September that all policies and procedures are included in the School Life Guide, when the school sends its weekly electronic newsletter to parents by e-mail.
[ 25 ] Mr. K. asserts that before December 19, 2011 “I was unaware that the sanction for possession or drugs on LCS campus was automatic suspension. At no time during these events was I ever given or referred to a copy of the School Life Guide 2011/12 stating the LCS disciplinary policies.”
[ 26 ] Mr. W. does not dispute knowing about the policy. His expectation was communicated to Mr. Hickey on January 10, 2012: “I left the ball in his court to work out a compromise.” By virtue of her position at the school, Ms. W. was aware of the policy. Mrs. K. did not swear an affidavit.
The Effect of the Expulsion on the Students
[ 27 ] Mr. Moreau points to the tarnishing of the students’ reputations.
[ 28 ] Mr. K explains the devastating effects of the expulsion on P.K.:
My fear now is that LCS’ decision to expel P. will seriously compromise his ability to complete the most important year of his high school education and thereby jeopardize his university prospects. In particular, I am concerned about whether a new school will be able to adequately accommodate his learning disability, as well as the impact of him moving from a non-semester to semester program, which will result in the loss of several high school credits.
Each day that P. is not enrolled in school is a day of work that he will have to catch up. Due to P.’s learning disability, he must work very hard to keep up to date and keep his grades up. According to Dr. Kim’s letter, I verily believe that P. is at a crucial stage in his academic career and the expulsion and its impact will be particularly challenging for him, because of his learning disability.
It is my concern that the stress of this pressure will be added to the severe impact all of this has already had on his emotional well being. P. appears to me to be shattered by these events. He is despondent, emotional, and apologetic…We were worried from previous experience with a friend of our daughter J.’s and P.’s behaviour that he may be suicidal or that he could become suicidal.
[ 29 ] Mr. W. states:
I am concerned that, with the significant disruption of being expelled in the middle of his grade 12 year, the emotional turmoil he has experienced as a result, and the stress of a new school environment, my son is going to struggle to complete his grade 12 year. This will also have a likely impact on his university applications. These events have had a particularly devastating impact on my son’s psychological well-being.
[ 30 ] This event followed on a traumatic break-up in the fall, as a result of which:
M. was then assessed, sent home for about two weeks, and put on anti-depressants. Once M. was sufficiently ready to return, he returned to Lakefield. Naturally, M. was behind, but I felt Lakefield was very supportive of him and helped him get caught up fairly quickly. By December 18, 2011, he was all caught up in his work.
Issues
[ 31 ] The applicants raise the following issues:
Should the court make an order directing that the applicants be identified in the title of proceedings with initials and issue a publication ban order?
Does the court have jurisdiction under the JRPA to judicially review Lakefield’s expulsion decision?
Should the court grant interim/interlocutory relief to temporarily return the students to Lakefield while the application remains to be decided?
I address these issues in turn.
Issue 1: Identification and Publication Ban
[ 32 ] The parties agree that it would be appropriate in order to protect the privacy of the students to use initials in title to the proceeding. The applicants also seek a publication ban and cite as authority C.D. (Litigation Guardian) v. Ridley College , 1996 8128 (ON SC) , [1996] O.J. No. 3800, 140 D.L.R. (4 th ) 696 (Gen. Div.) per J.W. Quinn J. at paras. 33-35 ( Ridley College ). The parties are agreed that a publication ban is in order in this case. So ordered.
[Content continues exactly as in the original decision through paragraph 99.]
P.D. Lauwers J.
DATE: January 27, 2012