The Kawartha Pine Ridge District School Board (the “School Board”) was unsuccessful on application for judicial review of the Child and Family Services Review Board’s decision to quash the School Board’s decision expelling a student who had smoked marijuana

Administrative law – Decisions of administrative tribunals – School prinicipal – School boards – Schools – Suspension of students – Judicial review – Compliance with legislation – Mootness – Standard of review – Reasonableness simpliciter

Kawartha Pine Ridge District School Board v. Grant, [2010] O.J. No. 1093, 2010 ONSC 1205, Ontario Superior Court of Justice, March 2, 2010, M.R. Dambrot, K.E. Swinton and H.E. Sachs JJ.

In November 2008, a 17-year-old grade 12 student at Peterborough Collegiate and Vocational School (“PCVS”) was interviewed about his marijuana use off school property. The student admitted smoking marijuana and sharing it with some friends, including some PCVS students during a six-week period.

PCVS suspended the student pursuant to Section 310(1) of the Education Act, R.S.O. 1990 c. E.2 (the “Act”), which provided for suspension, if the student had engaged in particular activity at school, at a school related activity, or in circumstances where engaging in the activity “will have an impact on the school climate”. The PCVS principal determined that the student’s marijuana use would have an impact on the school climate and ordered the suspension. After the suspension was ,issued the principal was required by the Act to conduct an investigation and to recommend whether the School Board ought to expel the student. During the investigation, the principal was to make all reasonable efforts to speak with the student and his or her parent or guardian and any other person that the principal had reason to believe might have held relevant information. The principal was also to take into account mitigating factors such as whether the student lacked the ability to control his or her behaviour, whether the student had the ability to understand the foreseeable consequences of his or her behaviour, and whether the student’s continuing presence in the school created an unacceptable risk to the safety of any person.

The principal might also have considered “other factors” including the student’s history, whether a progressive discipline approach had been used with the student, whether the activity for which the student was being expelled related to harassment of the student, how the expulsion would affect the student’s ongoing education, the student’s age, and whether the student had behavioural or conduct issues that had been addressed through an individualized education plan (“IEP”).

The principal then made a decision about recommending expulsion and must prepare an expulsion report containing a summary of his or her findings to accompany the recommendation.

The PCVS principal recommended expulsion and the expulsion committee of the School Board held a hearing on December 15, 2008. The School Board was required to hear oral and written submissions of the principal, the student or his or her parent or guardian and such other persons as specified by the School Board policy. In this instance, the student was informed of his expulsion by a December 15, 2008 letter which did not set out any reasons, despite a requirement in the Act that the notice of expulsion include the reason for the expulsion.

The respondent’s mother appealed to a Tribunal pursuant to a statutory right of appeal under the Act. The Tribunal held a de novo hearing in March 2009 where it heard testimony from the parties.

The Tribunal found that the School Board had the onus of demonstrating, on a balance of probabilities, that the student’s activities would have an impact on the school climate at some point in the future. The Tribunal articulated the onus on the School Board as requiring it to demonstrate a “direct and causal link between the pupil’s behaviours and a definitive impact on the school’s climate”.

Although PCVS had a drug problem, the Tribunal did not find evidence of a nexus between the expelled student’s off school property activities and the school climate. The School Board could not lead any evidence that the student had brought marijuana to school, used it at school or discussed its use at school. Therefore there was insufficient evidence to establish that the student’s activities would impact the school climate. The Tribunal quashed the expulsion and reinstated the student.

The School Board then brought an application for judicial review. By the time the application was heard, the student had completed his high school education. The student’s family argued that the judicial review was therefore moot and should not be heard.

The School Board and the Intervener Justice for Children and Youth asked the court to exercise its discretion to hear the application, arguing that the matter was one of importance to school boards and students throughout the province.

The court exercised its discretion to hear a moot proceeding, because the proper interpretation of these statutory provisions was one of great importance to school boards and students throughout the province.

The court proceeded through the standard of review analysis set out in Dunsmuir v. New Brunswick, 2008 SCC 9. The legislation in question provided that a decision of the Tribunal on an appeal from a decision of the School Board to expel a student is final. The clause suggests deference to the Tribunal’s decision. The purpose of the Tribunal is typically to deal with issues such as the removal of Crown wards and complaints against the Children’s Aid Society and adoption matters. However, more recently this Tribunal has become designated to hear expulsion appeals.

The nature of the question before the Tribunal was one of mixed fact and law to which deference was warranted.

The Tribunal members had expertise relative to the court. For example, members of the Tribunal must have a degree, diploma or certificate granted by a post-secondary institution and at least one year’s experience working in or volunteering in children’s services or social services, or five years experience working in or volunteering in children’s services or social services.

As a result of these factors, the court concluded that reasonableness was the proper standard of review.

The court held the Tribunal proceeded reasonably in conducting a de novo hearing, which was available to it under the statutory scheme. Given that the School Board had not given reasons for the expulsion, the Tribunal had to proceed with a de novo hearing because it could not engage in “any meaningful review” of the expulsion decision. The School Board also did not provide the Tribunal with a full evidentiary record on which to base its decision.

Finally, the decision under review, namely to expel a student from high school, is one of significant importance to the student and his parents/guardians. Therefore a high level of procedural fairness would be owed to them by the Tribunal.

The court held that the Tribunal’s finding that there must be a nexus between the student’s activity and the school climate before expulsion can be justified was found to be reasonable. The act is designed to protect students and staff from harmful conduct. The Tribunal accepted the student’s evidence that he did not sell drugs for another student, and rejected evidence from the vice-principal that three students had identified the expelled student as having bought and sold drugs. That evidence was rejected because the vice-principal did not identify the students by name or call them as witnesses at any point and the Tribunal reasonably found the hearsay evidence unreliable.

The decision of the Tribunal fell within a range of reasonable outcomes. The Tribunal had correctly interpreted the legislation and then reasonably weighed the evidence and concluded that the School Board had failed to prove a nexus between the student’s activity and a negative impact on the school climate.

The School Board’s application for judicial review was dismissed and costs of $3,000.00 were awarded the student’s parent.

To stay current with the new case law and emerging legal issues in this area, subscribe here.