Administrative law – Decisions of administrative tribunals – School principal – Investigations – Schools – Powers – Suspension of students – Transfer of students – Judicial review – Jurisdiction – Standard of review – Correctness – Patent unreasonableness – Procedural requirements and fairness – Natural justice – Compliance with legislation – Charter of Rights and Freedoms
K.B. (Litigation guardian of) v. Toronto District School Board,  O.J. No. 475, Ontario Superior Court of Justice, January 31, 2008, G.D. Lane, K.A. Hoilett and K.E. Swinton J.J.
K.B. and T.M. were involved in an incident where another student (“E.F.”) was assaulted and injured. Part of the incident was caught on videotape. The Principal brought K.B. and T.M. to his office. Subsequently, the police arrived and the students were arrested and charged with assault. K.B. was also charged with threatening death and threatening bodily harm to E.F. at a pizza store a few days earlier. The Principal contacted the parents of the students after the students had left the school with the police.
The Principal considered all the facts and circumstances surrounding the incident and concluded that he had no choice but to suspend K.B. and T.M. because they were significantly involved in the assault. At the same time as the suspension decision, the Principal was concerned about the students’ return to Emery, as he feared that they could be involved in future confrontations with E.F. or two of the witnesses to the assault. Therefore, he decided it was best for the safety of individuals at Emery, such as E.F. and the witnesses, that these students be transferred to another school. K.B. and T.M. appealed the suspension on the basis of a breach of natural justice and on the basis that the suspension had a racially discriminatory impact as both K.B. and T.M. were African-Canadian males.
On the issue of standard of review, the Court noted that the appropriate standard was correctness when reviewing the issue of the jurisdiction of the Principal to deny access and transfer a student after a suspension had been imposed. Assuming that such jurisdiction existed, the review of a decision to deny access or to transfer was on a standard of patent unreasonableness, because such a decision was heavily fact-driven and involved the expertise of the Principal in matters of school discipline and safety: Walker Youth Homes Inc. v. Ottawa-Carleton District School Board,  O.J. No. 2307 (S.C.J.). With respect to the issue of procedural fairness, there was no need to determine the standard of review and the Court must determine whether there had been compliance with the rules of natural justice and procedural fairness.
The Court reviewed the relevant legislative provisions, including s. 306 of the Education Act, R.S.O, 1990 c. E.2 and the Safe Schools Act, 2000, S.O. 2000 c. 12 and the decision in Bonnah (Litigation Guardian) v. Ottawa-Carleton District School Board (2003), 64 O.R. (3d) 454 in concluding that the Principal had the power to deny access to Emery, even though the applicants were students.
In reviewing the duty of procedural fairness, the Court noted that a number of factors must be taken into account including:
1. the nature of the decision made
2. the role of the legislative scheme
3. the importance of the decision to the individual affected
4. the legitimate expectations of the person challenging the decision and
5. the nature of the deference according to the decision-making body.
In this case, the students claimed that the Principal failed to conduct a thorough and unbiased investigation of the incident before contacting the police. The Court noted that this argument was not relevant to the determination of whether the applicants were denied procedural fairness when the Principal decided to transfer them. The Court concluded that the Principal did not breach the duty of procedural fairness. The Principal conducted an investigation before deciding to the transfer the applicants and invited the applicants to give their side of the story of the incident before he made his decision. The applicants, on the advice of counsel, chose not to speak given that there were outstanding criminal charges. However, the applicants’ decision not to speak did not undermine the fairness of the procedures which led to the decision.
The Court rejected the applicants’ arguments that their right to liberty under s. 7 of the Charter had been infringed. The applicants provided no authority to support their submission that choice of a particular school is a “fundamental life choice” protected by the right to liberty.
The Court also rejected the applicants’ assertion that their equality rights were infringed noting that the applicants failed to provide the necessary evidentiary basis to support their Charter equality claim. There was no evidence of a comparator group, nor was there evidence to support their submission that the transfer and denial of access were discriminatory.
In the result, the application for judicial review was dismissed.
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