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Survey of Student and Parental Rights and Obligations under the Education Act

Brenda Bowlby 1 Hicks Morley, LLP Introduction


Education is a fundamental right enjoyed by every child in Ontario. The Education Act2 (the Act) ensures that students and parents are provided with the rights necessary so the child is not deprived of this fundamental right. However, school boards do not bear the sole burden of educating children. Parents and students also have obligations under the Act to ensure the safety and effectiveness of our educational system. The purpose of this paper is to provide a cursory overview of the substantive and procedural rights and obligations of parents and students in the school system provided by the Act.

PART 1: Substantive Rights and Obligations of Students and Parents


The Act provides every student with a right to education without payment of fees but also obligates children of school age (6 years to 18 years and students under the age of 6 who have been enrolled) to attend school 3. In order to ensure that education is delivered in an environment which is safe and which respects the rights of students, the Act and other pieces of legislation set out other substantive rights and obligations including: mandatory attendance; protection of privacy; standards of conduct to prevent violence; and specialized programs for exceptional pupils.

School Attendance
Right/Obligation to attend school Section 32(1) of the Act provides a person has the right, without payment of a fee, 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 right cannot be taken away by the school board unless permitted under the Act. At the same time, school-aged students are obliged to attend school and parents are obliged to ensure that they attend (unless the child is 16 or older and has withdrawn from parental control)4. Section 21(5) explicitly requires the parent or guardian of a person who is required to
1 2

Thanks to David Ross, also of Hicks Morley LLP, for his assistance in the research underlying this paper. Education Act, R.S.O. 1990, E.2. 3 Ibid., s.21(1) (4). 4 Ibid., s. 21.

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attend school under this section to cause the person to attend school as required by this section unless the person is at least 16 years old and has withdrawn from parental control. The Act requires children between the ages of 6 and 18 to be sent to school unless legally excused from attendance.5 Parents who do not send their children to school can be prosecuted under the Act and convicted of a provincial offence6. A student who is habitually absent from school may also be guilty of an offence under the Provincial Offences Act7, and may be judicially ordered to attend school. If the students truancy persists following a court order that the parent ensure that the student attend school or directing the student to attend school, the responsible parent or student may be held in contempt for defying a court order. In October of 2009, a mother was found guilty of keeping her son out of school under the Act and placed on probation. The mother argued that her 11 year old sons excessive absenteeism was related to various health problems, such as asthma, a bowel disorder and a bee allergy. The Court did not accept the mothers argument and found her guilty of failing to cause a child under the age of 16 to attend school every day. The mother was sentenced to one year of probation and any further breaches of the order could result in jail time.8 The circumstances where a student is excused from attending school are set out in s. 21(2)of the Act and include the following: (a) the person is receiving satisfactory instruction at home or elsewhere; (b) the person is unable to attend school by reason of sickness or other unavoidable cause; (c) transportation is not provided by a board for the person and there is no school that he or she has a right to attend situated, (i) within 1.6 kilometres from the persons residence measured by the nearest road if he or she has not attained the age of seven years on or before the first school day in September in the year in question, or (ii) within 3.2 kilometres from the persons residence measured by the nearest road if he or she has attained the age of seven years but not the age of 10 years on or before the first school day in September in the year in question, or (iii) within 4.8 kilometres from the persons residence measured by the nearest road if he or she has attained the age of 10 years on or before the first school day in September in the year in question; (d) the person has obtained a secondary school graduation diploma or has completed a course that gives equivalent standing;

5 6

Ibid.at s. 21(2).. Ibid. at s.30. 7 Ibid. at s.30(6). 8 Peterborough Examiner, Mother found guilty of keeping son out of school under Education Act, October 9, 2009.

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(e) the person is absent from school for the purpose of receiving instruction in music and the period of absence does not exceed one-half day in any week; (f) the person is suspended, expelled or excluded from attendance at school under any Act or under the regulations; (g) the person is absent on a day regarded as a holy day by the church or religious denomination to which he or she belongs; or (h) the person is absent or excused as authorized under this Act and the regulations. Where a student is unable to attend school due to illness, and provides a medical note, a principal may, with the approval of the appropriate superintendent, arrange for home instruction to be provided to the student.9 While home instruction is not expressed in the Act or regulations as a right of students who are unable to attend school due to illness or disability, there may be circumstances where the Human Rights Code would impose an obligation to provide home instruction to a student whose disability precludes him/her from attending school. Where a student has been absent from school, the parent of a student under the age of 18, or a student 18 or over, is required to provide a reason to the principal orally, or if the principal requires, in writing. Meanwhile, the principal has the discretion to temporarily excuse students from school attendance upon the written request of a parent or student, whichever is applicable.10 Where a student has been expelled from all schools or suspended for more than five days, the school board is still required to provide an educational program for the student,11 although it should be noted that a suspended or expelled student is not required to attend the program. However, an expelled student will not be permitted back into a school in the Board unless the student either completes the program or satisfies the objectives of the program.12 Further, if the student does not attend the program, the student ceases to be a student of the Board.13

Home Schooling and Private Schools The Act does not require every child to attend a public school. The Act permits children to receive their education from private schools or home schooling so long as the educational programming meets provincial standards. However, a parent must satisfy the Board that the child is receiving adequate instruction elsewhere before the parent is relieved from the obligation of sending the children to a publiclyfunded school.14

Regulation 298, R.R.O. 1990, s. 11(11). Ibid. at s. 23. 11 Supra, note 1 at ss. 311.3(7), 310 and PPM 141. 12 Ibid. at s. 314.1 (1). 13 Ibid. at s. 313(2). 14 Lambton County Board of Education v. Beauchamp, (1979) 10 R.F.L. (2d) 354. See also, R. v. McBurney (1985), 85 D.T.C. 5433.
10

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In R. v. Prentice,15 the parents of four school-aged children were prosecuted under the Act for failure to send their children to school despite the fact that the parents were sending the children to a faith-based private school. However, the evidence showed the level of education was substandard. In this case, the parents failed to demonstrate the children were receiving an adequate education and, therefore, the parents were convicted of a provincial offence. Similarly, in R. v. Jones,16 a Pastor claimed he had a God-given mandate to educate his children by his own principles. He refused to send his children to school, claiming that the children were receiving efficient instruction at home. He claimed that the requirement that he send his children to a school not of his choosing violated his section 7 liberty and freedom of religion rights, guaranteed by the Charter of Rights and Freedoms (the Charter). The majority of the Supreme Court of Canada held that the Pastor was in violation of the Act because his chosen method of efficient education was not approved as his private school did not obtain a certificate attesting that the children were receiving efficient instruction under Albertas School Act.17 In Ontario, the Ministry of Education issued Program/Policy Memorandum No. 131 in 2002 dealing with Home Schooling. This PPM essentially directed school boards to back off from scrutinizing the qualify of home instruction which parents provide. All that is now required is that a parent write a letter to the school board in a form specified by the PPM, which indicates that the parent will be home schooling his/her child. The PPM directs that school boards are not normally to investigate home schooling situations, unless there are reasonable grounds to suspect that the child is not receiving satisfactory instruction at home. Right to Attend School of Choice A students right to attend a school in the jurisdiction in which the student resides does not translate into a right of a student or parent to choose which school the student attends.18 The school board has the statutory right to establish the attendance area for each school in its jurisdiction19 and to require students to attend the school in the attendance area where they reside or, if reasonable circumstances justify it, to direct the student to attend another school.20 In Jackson v. Toronto District Catholic School Board,21 a case where a student was expelled from his school and required to attend a different school for one year, the Court affirmed this action by the school board did not violate section 7 of the Charter. As an exception, sections 35 and 39 of the Act allow for a student to attend a more accessible school of another school board where the pupil can attend a nearer school of the same type (ie. elementary or secondary) and there is sufficient accommodation for the pupil in that school.

15 16

R. v. Prentice, [1985] O.J. No. 771. (1983), 49 A.R. 135 (Prov Ct.) revd (1984), 57 A.R. 266 (C.A.), affd [1986] 2 S.C.R. 284. 17 R.S.A. 1980, c. S-3. 18 Hatch v. London (City) Board of Education (1979), 25 O.R. 92d) 481. 19 Ticher v. Toronto District School Board (2002), O.J. No. 4047. 20 As a matter of administrative law, the school board, having established attendance areas, will be expected to exercise its statutory authority to direct a student to attend a different school in a reasonable and fair manner for a justifiable reason. 21 (2006), O.J. No. 2878. See also K.B. v. Toronto District School Board, 2008 CanLII 6875 (ON SCDC), to the same effect.

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However, this exception does not allow for the student to attend a more accessible school in another school board without paying a fee.22 Right to Particular Educational Programs Generally, the Act does not provide students any right to a particular educational program, nor does it guarantee a level of quality of education. The Act does require specialized programming for students identified with the exceptionality of gifted which will be discussed below. 23 While special education programming is required to meet the needs of students whose disabilities interfere in their ability to benefit to an equal degree from the regular curriculum delivered in the regular class, parents do not have a right to dictate what special education programming or services are provided. The Right of Exceptional Pupils to Particular Educational Programming Section 8(3) of the Act requires the Minister of Education to ensure that all exceptional students are provided with appropriate special educational programs and services. Section 170(1)7 requires school boards to provide special education programs and services to its students. As noted above, the parents of exceptional pupils cannot dictate the identification or placement of their children, or the special education programs or services which they receive. However, the Act does provide to parents of exceptional pupils the right to be present at and present information to the Identification, Placement and Review Committee (IPRC) meetings at which their children are discussed. They may appeal IPRC decisions on identification and placement of their children, initially, to an ad hoc Special Education Appeal Board24 and then to a tribunal created by the Act, the Special Education Tribunal, which has the power to make a final and binding decision on the matters of identification and placement.25 In Eaton v. Brant County Board of Education,26 the parents of an exceptional pupil challenged the IPRCs decision that their child be placed in a segregated class, first in an appeal to the Special Education Tribunal and then, after the Tribunal agreed with the IPRC, through judicial review and appeal in the courts all the way to the Supreme Court of Canada. The Supreme Court of Canada found that the child had no absolute right to be placed in a regular classroom, and that since the Special Education Tribunals decision to place the pupil in a segregated class was made based on the standard of best interests of the child, it did not violate the Charter.
22 23

Supra, note 1, s. 49. In Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360, the Supreme Court of Canada made clear that programming must be provided by a school board which permits every student to access education. In this case, the school board closed down a small program which served a small number of students with a specific learning disability, resulting in the specific needs of a student who had been in the program no longer being met. The student was withdrawn from the school board and sent to a private school when the school psychologist and school principal recommended to the parent that the programming needed by the student was to be found there. Ultimately, the students s. 15 Charter rights to equal treatment in the provision of education services were found to be have been violated by the school board. This case would not likely have happened in Ontario because of the s.8 (3) obligation on the Minister of Education and the ability of parents to appeal placement to a Special Education Tribunal which can and has ordered school boards to provide/purchase placements/programs not previously provided by the school board. 24 O. Reg. 181/98 at s. 26. 25 Supra, note 1, s. 8(3); s. 57; 26 [1997], 1 S.C.R. 241.

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Moreover, the Court confirmed that school boards are to make decisions on education based on the best interests of the child and not based on parental wishes. In Wynberg v. Ontario,27 the Ontario Court of Appeal, following the Supreme Court of Canadas rationale in Auton v. British Columbia,28 found that a school-aged autistic child did not have the right to be provided Intensive Behavioural Intervention therapy, a program used specifically with autistic children. The Provinces refusal to provide this form of therapy did not violate section 15 of the Charter or section 8(3) of the Act. Further, the Court of Appeal confirmed that neither the Charter nor legislation requires every exceptional pupil to have access to specific educational services; the requirement is only that the child receives an educational program that is suitable to the needs of the student. Educational Malpractice Parents have commenced court actions challenging the quality of education provided to their children by school boards, based on claims of educational malpractice. An educational malpractice claim typically alleges the school system has failed to provide the pupil with the academic skills necessary to undertake the most rudimentary tasks involved in coping with adult life. However, no claim for educational malpractice has ever been successful in Canada and there remains a continuing debate among the judiciary and academics whether such a claim even constitutes a cause of action. This issue was first broached by courts in the United States. The case law in the United States is very clear that there is no such tort of educational malpractice. The seminal case on this issue is Peter W. vs San Francisco Unified School District,29 where the Court clearly stated that there is no actionable tort of educational malpractice; the Court noted that to recognize such a tort would expose school boards to a floodgate of tort claims from dissatisfied students. The reasoning in Peter W. was cited with approval by the Supreme Court of Canada in Jones v. The Queen.30 The Supreme Court of Canada confirmed there is no such tort of educational malpractice in Canada as the courtroom is simply not the best arena for the debate of issues of educational policy and the measurement of educational quality.31 The first few cases dealt with by the Ontario Courts clearly state that no such action exists. In Hicks v. Etobicoke (City) Board of Education,32 and Wong v. University of Toronto,33 the Courts confirmed the American reasoning and found that educational malpractice is not a recognized tort in Ontario. However, in the university/college context, in 2002, the Court in Ben-Gal v. Algonquin College,34 seemed to open the door to a tort of educational malpractice when it refused to strike the portions of the claim which dealt with educational malpractice. The Court said that just because
27 28

(2006), 82 O.R. (3d) 561. [2004] 3 S.C.R. 657. 29 (1976), App 131 Cal. Rptr. 854 (Peter W). 30 (1986) 2 S.C.R. 274 31 Ibid. at para. 42. 32 (1988) O.J. No. 1900. 33 (1989) O.J. No. 979. 34 (2002) O.J. No. 3246.

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the claim is novel does not mean that it should not succeed, and reasoned that the facts giving rise to the tort of educational malpractice may give rise to other torts such as negligent misrepresentation, breach of contract or breach of fiduciary duty.35 Similar findings involving universities have been made in other courts.36 However, it is worth noting that there is an important distinction between colleges/universities and publicly-funded school boards: students pay tuition to go to college/university and the basis of the relationship between students and their post secondary educational institution is one of contract. This is not the case for students of publicly-funded school boards who are compelled by legislation to attend school paid for by the government which, in providing education systems for the children of its citizens, is attempting to achieve important social goals (ie. a properly educated citizen body). The basis on which Courts have found education malpractice not to be a sustainable as a tort claim in the school board sector has included public policy reasons, including for example that it is the state which determines the curriculum and provides the education such that the delivery of education is a matter of governmental policy which, generally, courts do not interfere with. Commentators and academics will continue to debate the validity and existence of a tort of educational malpractice, but currently, it appears that a claim will be dismissed if it alleges damages solely based on the tort of educational malpractice without any contractual connection between the student and the body providing the education to ground the claim. The effect is that currently, parents and students have no statutory or common law recourse to require a school board to provide particular educational programming or challenge the adequacy of the education being provided to the pupil.

Privacy Rights
The Act, along with Ontarios privacy legislation, and in particular the Municipal Freedom of Information Privacy and Protection Act (MFIPPA),37 creates privacy rights for students regarding the information collected by school boards.

The Ontario Student Record (OSR) The Act requires a principal to establish, maintain, retain, transfer and dispose of a student record for each student enrolled in the school.38 The documents to be placed in the OSR are those documents which are conducive to the improvement of instruction of the student, as outlined in a Guideline issued by the Ministry of Education.39 This record follows a pupil when he or she transfers schools. A pupil who is 18 years of age or older, a student aged 16-17 who has withdrawn from the control of his/her parents or a parent or guardian of a pupil who is under the age of 18, may

35 36

Ibid. at paras 17-18. e.g. Hozaima v. Perry et al., 2010 MBCA 21 (CanLII), 37 R.S.O. 1990, c. M.56. 38 Supra, note 1 at s. 265(1)(d) . 39 Ontario Student Record Guideline, 2000, www.edu.gov.on.ca/eng/document/curricul/osr/osr.html s

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request the correction or removal of information in the OSR on the basis that the document is inaccurate or not conducive to the improvement of the instruction of the student40. If the principal refuses to comply with the request, the pupil or parent can require the request to be sent to the appropriate supervisory officer. This officer can either require the principal to comply with the request, or refer the request to a Ministry-designated individual who will conduct a hearing, usually in writing. The Act sets up a statutory privilege over the contents of the OSR by providing that the documents in the OSR are not be disclosed in any adjudicative proceedings except where the parent (or student aged 18, or 16-17 who has withdrawn from parental control) has consented. This provision, however, does not apply to criminal proceedings unless the party challenging the disclosure can demonstrate that the disclosure of the record will cause more injury than allowing an accused the right to make a full defence, as guaranteed by section 7 of the Charter41. It is up to the presiding judge to weigh the balance of interests when determining whether or not the records should be disclosed.42 However, MFIPPA appears to have provided civil adjudicators (including courts and arbitration boards) with the authority to override this statutory privilege and both civil courts and arbitrators have ordered the production of OSR documents, without parental consent.43 It should be noted that different considerations will apply where the student is a party in litigation. Ontario courts have not yet dealt with the issue of whether the privilege set out in s. 266 of the Education Act is implicitly waived by the commencement of a proceeding by a student against a school board in which the educational services provided by the school board to the student are put in issue. However, Ontario courts have dealt with actions in which a student is a party and documents in the students OSR are relevant to issues raised in the action. In Parr et al. v. Butkovich et al. (1978), 20 O.R. (2d) 491, where the defendant sought disclosure of documents from the plaintiffs OSR, the Court said [at p. 493.]: What is being asked here is to have the pupil on whose behalf serious allegations are being made, to do all that he is able to do in order to permit records which by their nature appear to be relevant to the issue raised by such allegations to be made available for the examination by the defendants. To the extent the pupil, as an adult, is able by his written permission to allow for records of the type in question to be produced, is to my mind tantamount the saying that those records are within the plaintiff's 'custody or power' as those words are used in Rule 347. It would be unthinkable to allow a situation to arise and exist where a plaintiff making serious allegations is able to permit records which may contain information relevant to

40 41

Supra, note 1 at s. 266. R. v. Ross (unreported May 19, 1995), B.(K). v. Toronto District School Board, (2006) 211 O.A.C. 75. R v. Kelly, (1994) C.R. (4th) 354 (Ont. Prov. Div.). Since criminal proceedings are conducted under a federal statute, the Criminal Code of Canada, the principle of paramountcy of federal legislation over provincial legislation applies. 42 R. v. Barbosa, (1994) 92 C.C.C. (3d) 131. 43 OSSTF District 29 v. Hastings and Prince Edward District School Board, Lancaster, Volume 17 No. 3/4. C.A.W. Re (1975), 25 Chittys Law Journal 204.

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such allegations from being made available to the defendant simply by refusing to give his permission for their release. (Emphasis added.)44 In applications before the Human Rights Tribunal of Ontario brought by parents on behalf of their children, in some instances, parents have refused to consent to the production of all or some OSR documents. However, where the Tribunal is satisfied that documents in the OSR are arguably relevant to the issues raised in the application, the Tribunal has made clear that it is prepared to dismiss an application as an abuse of process where parents refuse to permit a respondent to rely on information and documents from the OSR where such refusal is prejudicial to the respondent in defending itself against the parents allegations of discrimination by the respondent.45 Municipal Freedom of Information and Protection of Privacy Act MFIPPA provides a significant privacy right for parents and students as it prohibits the school board from collecting information about a pupil except what is relevant or necessary for the school board to provide educational services to the student. The school board must ensure that the parents and pupils are informed about what information is collected and how it will be used. School boards must keep the documents containing personal information which it collects private and may not disclose the document in ways other than what is prescribed by legislation.46 The school board may, however, use the information for the purpose the information was collected or disclose the information to employees of the school board who need it to carry out their duties. Disclosure to police who are conducting an investigation is also permitted.47 The information contained in the OSR is also governed by MFIPPA. MFIPPA allows pupils who are 16 years of age and older to make requests to correct personal information contained in the OSR. This overlap in the legislation does not, however, mean that parents of pupils between 16 18 years of age cannot make requests to have access to, or correct, the OSR. Both pieces of legislation remain operative, and even if a pupil over 16 does not want his or her parent or guardian to have access to the OSR, the Act continues to provide the parent or guardian a right to access to the information. In fact, Regulation 298 authorizes a principal to report promptly any neglect of duty or infraction of the school rules by a pupil (defined as a child up to the age of 18) to the parent or guardian of the pupil.48 There are also special considerations regarding children who have been placed in the custody of the Childrens Aid Society. While parents maintain the right to access the OSR of their

44

See also: Kuczko (Next Friend) v. Hallows [1980] O.J. No. 538; Lee v. Toronto District School Board, 2008 CanLII 20984 (ON SC)
45

T.S. v. Toronto District School Board, 2011 HRTO 1471 (CanLII; T.S. v. Toronto District School Board, 2011 HRTO 1678 (CanLII); G.A. v. York Region District School Board, 2012 HRTO 1787 (CanLII) 46 Supra, note 1 at s. 266(10). 47 Investigation Report 196-033M (Re: A Separate School Board) (1996), Susan Anthistle (Information and Privacy Commissioner/Ontario). 48 Brown and Zuker, Education Law, (2007) at page 314; R.S.O. 1990 Reg. 298, s 11(3)(n).

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children, the Child and Family Services Act precludes automatic access to any additional documentation held by the school which does not form part of the formal record.49

Code of Conduct
While principals have the obligation to maintain order and discipline in their respective schools, students also have obligations regarding their behaviour while at school or involved in school activities. The Operation of Schools Regulation sets out the Requirements of Pupils at section 23: (a) (b) (c) (d) (e) (f) (g) (h) be diligent in attempting to master such studies as are part of the program in which the pupil is enrolled; exercise self-discipline; accept such discipline as would be exercised by a kind, firm and judicious parent (not corporal punishment); attend classes punctually and regularly; be courteous to fellow pupils and obedient and courteous to teachers; be clean in person and habits; take such tests and examinations as are required by or under the Act or as may be directed by the Minister; and show respect for school property.50

Section 23(4) of the Regulation also holds students responsible to the principal for their conduct on school premises, during school activities off the school premises and while travelling on a school bus. With the introduction of the Safe Schools regime in the 1990s, principals were given additional tools to assist in maintaining discipline in schools with the creation of the Code of Conduct. This Code of Conduct outlines the standards of conduct expected by all members of the school community.51 These standards of conduct apply to not only students, but also to all individuals involved in the publicly-funded school system i.e. parents, volunteers, teachers, and other staff members whenever these individuals behaviour could have an impact on the school climate.52
49 50

Childrens Aid Society of the Regional Municipality of Waterloo, c. L. (T)., (1990) 21 A.C.W.S. (3d) 1014. Supra, note 8 at s. 23. 51 Code of Conduct, PPM No. 128, online at: http://www.edu.gov.on.ca/extra/eng/ppm/128.html. 52 Ibid.

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The Code of Conduct specifically enumerates standards of behaviour for both students and parents. Students Students are to be treated with respect and dignity. In return, they must demonstrate respect for themselves, for others, and for the responsibilities of citizenship through acceptable behaviour. Respect and responsibility are demonstrated when a student: comes to school prepared, on time, and ready to learn; shows respect for himself or herself, for others, and for those in authority; refrains from bringing anything to school that may compromise the safety of others; and follows the established rules and takes responsibility for his or her own actions.

A student who breaches his or her responsibilities under the Code of Conduct may be subject to suspension or expulsion under sections 306 or 310. The procedural rights afforded to students and their parents when facing a suspension or expulsion is described in Part 2 under Suspension and Expulsions. Parents Parents play an important role in the education of their children and can support the efforts of school staff in maintaining a safe and respectful learning environment for all students. Parents fulfil their role when they: show an active interest in their child's school work and progress; communicate regularly with the school; help their child be neat, appropriately dressed, and prepared for school; ensure that their child attends school regularly and on time; promptly report to the school their child's absence or late arrival; show that they are familiar with the provincial Code of Conduct, the board's code of conduct, and school rules; encourage and assist their child in following the rules of behaviour; and assist school staff in dealing with disciplinary issues involving their child.

Parental Harassment The Code of Conduct confers a right for teachers, principals and other members of the school board to be free from harassment by all individuals, including parents.

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The Code of Conduct and the school boards ability to hold parents accountable for their behaviour also helps prevent parents from engaging in conduct to the point of civil and criminal harassment and suffering from the consequences of their actions. However, there have been situations where parents have well crossed the line from concerned parent to harasser. The case of McKerron v. Marshall53 provides an example of particularly egregious parental harassment, where damages of $405,000 for defamation and intentional infliction of nervous shock were awarded against a parent to a teacher employed by the Waterloo Board of Education. In McKerron, the plaintiff taught the defendants sons grade four class. The defendant became dissatisfied with the teacher and removed his son from the school. The defendant orally and by letter complained to the school board demanding the teacher be removed from the school as she was no longer capable of fulfilling her duties and the students were at risk. The defendant further engaged in a campaign to defame the teacher by writing to the newspaper stating the teacher was unstable, and also parked his car in the school parking lot with a mounted a banner on his car which said Mrs. McKerron is unstable, remove her now! The defendant persisted with his campaign even after the plaintiff switched schools. Other examples of civil harassment are seen in Peel District School Board v. Taurozzi,54 and Peel Board of Education v. Gradek.55 In these cases, the principals also exercised their right to exclude these parents from school premises under section 265(1)(m), which is discussed in the next section. In Taurozzi, a parent left numerous messages on the answering machine of a principal to the point where it crossed the line into nuisance and harassment. The Board was granted a restraining order from the parent from all calls not related to school activities. In Gradek, a parent was distributing defamatory leaflets on school premises. The Court balanced the right of free speech and to make fair comments against the right to be free from harassment, and in this case granted a restraining order against the parent. Parents have even unfortunately crossed the line into criminal harassment under the Criminal Code. In R. v. Thysen56, a parent volunteer became enamoured with the complainant - a teacher - and repeatedly brought flowers and chocolates despite the complainant asking him not to. When an incident occurred in the complainants classroom, the accuseds emotions towards the teacher changed and he started calling the teacher at her home, stopping by her house, while continuing to send gifts and writing various letters of apology. As a result, the teacher ended up on stress leave, and was unable to sleep or eat. The parent volunteer was convicted under the harassment provisions of the Criminal Code. In another case a parent was convicted of causing a disturbance in or near a public place when the parent began yelling and swearing at a vice principal in the school office and refused to leave when asked. The parent was sentenced to two years probation combined with anger management counselling and an order that he not trespass upon the property without the permission of the school. 57
53

(1999), O.J. No. 4048. See also Ottawa-Carleton District School Board v. Scharf, 2007 CanLII 31571 (ON SC) where the parent engaged in internet defamation of her childs teachers. 54 Unreported (October 15, 1998) (Taurozzi). 55 Unreported (November 23, 1994) (Gradek). 56 (1996) 44 Alta. L.R. 3d 364. 57 R. v. Ganth, 2006 CanLII 14417 (ON SC).

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Principals Power to Exclude Persons from School Premises


The Act provides that parents may visit a public school attended by his/her child.58 Section 2 of O. Reg. 474/00 (Access to School Premises), provides that parents and students are permitted on the school site when the premises are being used for purposes authorized by the school board. School site has been defined to include land or premises or an interest in land or premises required by the board for a school, school playground, school garden, teachers residence, caretakers residence, gymnasium, school offices, parking areas, or for any other school purpose.59 However, the right extended by the Regulation to parents to attend on school premises is subject to the restrictions of the regulation60. The restrictions set out in the Regulation provide that a principal may remove permission for a parent (or other person other than a student) to remain on a school site, in the following circumstances:61 if his or her presence is detrimental to the safety or well-being of a person on the premises, in the judgment of the principal, a vice-principal or another person authorized by the board to make such a determination; or if a policy of the board requires the person to report his or her presence on the premises in a specified manner and the person fails to do so.

Principals are also accorded the authority to exclude a person under the Act. Indeed, this authority is expressed as a duty by the Act. Section 265 of the Act provides as follows: 265. It is the duty of a principal of a school, in addition to the principal's duties as a teacher... (m) 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; ... A principals authority under s. 265 of the Act to refuse to allow a person (including a student) into a school, or to require him or her to leave a school, is conditional upon the principal making determination that the presence of that person in the school would be detrimental to the physical or mental well being of students. Where a person is excluded, a right of appeal to the Board of Trustees is accorded to the excluded person.

58 59

Supra, note 1, s. 50. Supra, note 1 at s.1(1).

60

Section 305(1) provides: "The Minister may make regulations governing access to school premises, specifying classes of persons who are permitted to be on school premises and specifying the days and times at which different classes of persons are prohibited from being on school premises.
61

O.Reg. 474, s. 3(1),(2).

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By contrast, the exercise of power of the principal under O. Reg. 474 allows the principal to exclude a person when the principal determines that the presence of the person on the premises is detrimental to the safety or well-being of a person on the premises (which may include an employee or another parent, as well as students) or will disrupt the good order of the school. Whether under s. 265(m) or O. Reg. 474 the principal must reach the requisite determination in good faith, which is to say that the principal may exercise these powers only where the safety concerns are genuine, and, in the case of a student or parent who, otherwise, has rights to be on school property, the determination to exclude in the circumstances is a reasonable one. For example, if it can be shown that a principal used these powers to circumvent the stay provisions which arise in a special education appeal, pending the hearing of the appeal by the Special Education Tribunal, a court could intervene by way of judicial review just as it could if a principal used these powers for any other improper purpose.62 Persons who are not permitted to be on school premises, or school site, under the Act may be prosecuted under the Trespass to Property Act.63 In Bonnah v. Ottawa-Carleton District School Board,64 the Court determined that a student may be excluded under s. 265(m). The case involved the exclusion of an 11 year old exceptional pupil from his regular school, whereupon the school board moved him into a special needs school which the school board believed was better equipped to handle his particular special needs. The student was excluded because he continuously assaulted staff and other students and jeopardized the safety of the school community. The parents argued that the safety concerns only arose because he was not being appropriately accommodated at his current school. The Court upheld the school boards decision as it was within the school boards power and discretion to transfer any student because of safety concerns. The Court in Bonnah also confirmed that the principals power to exclude students under 265(1)(m) is concerned solely with the safety of the school community, not the educational needs of the student. [It is noteworthy that move to the new school was, in fact, a move into a new placement which the IPRC had recommended and the parents were appealing. The Court specifically held that due to the stay of placement provisions of O.Reg 181/98, the school board was precluded from placing the student into the new school, and was obliged to treat the student in the same way as other students who were excluded.] However, the Human Rights Tribunal recently has made clear that before a student can be excluded as a result of the students disability, every other reasonable way of dealing with the student and the issues giving rise to the exclusion short of exclusion must be considered and attempted. Further, once a student has been excluded as a result of disability, a meaningful effort must be made to continue the students education simply sending a bag of books home or providing home instruction of three hours a week65, will not be sufficient. Parents also have been excluded under the Act when their behaviour disturbs the operation of a school or jeopardizes the safety of member of the school community. In Martin v. Consie des
62 63

(2004), O.J. No. 2307 at para 58. Trespass to Property Act, R.S.O. 1990, c. T.21. 64 (2003), 64 O.R. (3d) 454. 65 R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 130 (CanLII).

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Ecoles Catholic de Langue Francoise du Centre-Est,66 the Court found that Mr. Martin created a situation of distress and anxiety and an atmosphere of chaos by confronting teachers and approaching other parents in the parking lot. The Court confirmed that the principal was justified banning the parent from school premises in order to ensure the well-being of the school community.67

Student Rights vis-a-vis Other Students: Bullying


As discussed above, school boards have the duty to protect the well being of the students and school community under the Act, and additional duties to ensure a safe environment for school board employees, including teachers, under the Occupational Health and Safety Act68 and Human Rights Code. Bullying has existed in one form or another since the inception of schools, but remains an area of growing concern in light of stories of suicide by students who were victims of bullying, and of escalated violence against the bullies.69 The explosion of new electronic media has only increased the difficulty in preventing bullying and has provided bullies with new means of intimidating their targets. Court Actions A frequent allegation in a civil claim about bullying is that the board failed to discharge its duty to keep the pupil safe while on school premises by providing inadequate supervision where one student was a victim of violence from another. The courts have found that students have the right to be free from bullying and school boards owe a duty of care to ensure the safety of its students. In North Vancouver School District No. 44 v. Jubran,70 the British Columbia Court of Appeal found that where a student was consistently harassed and assaulted as a result of his perceived sexual orientation, the school board was obliged under the human rights legislation to protect the student, and mere discipline of the bullies was not adequate. However, generally speaking courts have been reluctant to find boards liable for the bullying of students where the bully was concealing his or her activities from teachers,71 and have distinguished these single acts of bullying and violence from situations where a pattern of bullying was identifiable and preventable. In order to determine if school boards are liable for damages caused to students through violence caused by bullying or harassment, the courts will examine situations which increased the violence or vulnerability of the victim and will ask the following questions: (1)
66 67

Did school authorities have actual knowledge of acts of harassment or bullying?

(2006), O.J. No. 5349. See also Supra, notes Taurozzi, and Gradek, referenced above. 68 Occupational Health and Safety Act, R.S.O. 1990, c. O.1 at s. 25(2)(h) 69 For example, the multiple homicides which occurred at Columbine High School in Colorado were arguably a reaction to bullying. See http://www.newfoundations.com/Clabaugh/CuttingEdge/Columbine.html. 70 (2005), 253 D.L.R. (4th) 294. 71 Mainville v. Ottawa (Board of Education) (1990), 75 O.R. (2d) 315.

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(2)

Did the school board act with deliberate indifference to the harassment?

(3) Was the harassment so severe, pervasive and offensive that the students was deprived of his or her education?72 In order for the board to be liable to a victim of bullying, a plaintiff must establish that the school board was able to identify the bullying and that the school board acted in manner towards the bullying that would be considered reprehensible by the average person. This is a very high standard, which was likely created to prevent school boards from becoming absolute insurers against anothers actionable conduct in the courts73. Human Rights Code By contrast, if the bullying involves a ground protected under the Human Rights Code, to any degree, the school board will have a positive obligation to address the bullying by taking appropriate steps which will usually involve not just addressing specific incidents but also by addressing the issue within the context of the environment of the school. The Human Rights Tribunal of Ontario found that that where teachers or a schools administration become aware of harassment involving a protected ground under the Code occurs, the school board, principal and students teacher(s), are under a positive duty not only to address the . specific incidents that were reported but also to take broader steps to address the school environment.74 In such a case, the Tribunal found that appropriate actions were taken upon being advised that a student was feeling bullied as a result of racially-linked namecalling and comments, when the following actions were taken: the school held a no put-down day; the students teacher held a community circle where she and the students talked about put-downs and the teacher expressed to her students that a put-down was like a punch, but that it was bruising to the persons heart instead of their body; the principal held a staff meeting in which inclusiveness was discussed and staff were advised to keep an eye out for bullying; and every class in the school participated in an exercise regarding inclusiveness in the school.

Bullying under the Criminal Code Students can also resort to the police to help to deal with bullying: criminal harassment, assault or threatening constitutes criminal behaviour as described by the Criminal Code. In R. v. L(B),75 the Court suggested that a clear-cut indication must be sent to all bullies that these bullying behaviours will not be tolerated.

72 73

R. v H(D), (2002) B.C.J. No 2454. Supra, note 69 at page 320. 74 S.T. v. Toronto District School Board, 2009 HRTO 1074 (CanLII). 75 (1992), O.J. No. 3807, affd 62 O.A.C. 112 (C.A.).

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In R. v. H(D),76, a student was found guilty of threatening death or bodily harm after telling another student she would beat her up and kick her ass. R. v. D.W,77 is a case that exemplifies the serious effect bullying has on students. In D.W,. a student was found guilty of criminal harassment and making threats. In this case, D.W. repeatedly told another student, a former friend named Dawn, that she would beat her up and get other students to beat her up. This pattern cumulated into a final exchange where D.W. screamed into the phone that she was going to kill Dawn. Dawn committed suicide that evening. The Court found that these offences did not require that the bully must actually intend to carry out the threat of physical harm: it was sufficient that a reasonable person would perceive the words uttered as a threat. (Note: the Judge commented in her decision that she was dismayed that none of the bystanders ever stepped in to help Dawn, or even to tell the bullies to stop.) Cyber-bullying In 2007, the Ministry of Education added cyber-bullying to the list of offences for which a student can be suspended or expelled from school. The internet has created new and innovative ways for bullies to torment their victims, from creating web pages designed to harass and intimidate victims to posting messages or photographs on virtual message boards to humiliate a specific target. Moreover, the internet has provided direct access to the targets of bullying in their homes and 24 hours a day. An increasing number of students are also now being bullied on their cell phones through abusive text messages. Additionally, teachers are becoming a frequent targets of internet or cyber-bullying as the anonymity of online communications allows students to feel less inhibited from doing things they would never do in the real world.78 Cyber bullying involving threats of harm, or knowingly posting libelous statements about an individual are both prohibited by the Criminal Code under the criminal harassment and defamatory libel offences, respectively; cyber defamation or libel can also be dealt with in civil courts under the law of libel. Frequently, however, if the means of removing the offensive posting can be found (and increasingly the host sites on which the bullying takes place are being persuaded to removing clearly illegal postings), no further action is taken against the bully, given the difficulty of identifying who posted the threats or libel. While there are different approaches to handle this emerging issue, unfortunately, this topic is beyond the scope of this paper.

76 77

Supra, note 71. (2002), B.C.J. No. 2136. 78 Brown and Zuker, Education Law, 2007 at page 280.

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PART 2 - Procedural Rights


A right is of little value if it cannot be enforced. In the case of school boards, students and parents have available to them procedural rights under the Education Act, under other statutes and at common law, which allow them to enforce some of the substantive rights provided by the Act and to ensure the school board is not making decisions which affect the educational lives of the students in an arbitrary manner. For example, the Act requires a board of trustees to hold hearings before exercising its power to expel a student, and provides a right of appeal to the board of trustees by parents (or students if aged 18 years, or 16-17 where the student has withdrawn from parental control) where a principal has suspended the student. Further, where a principal excludes a student or parent under section 265(m) of the Act, this section also provides a right of appeal by the excluded party to the board of trustees. Statutory Powers Procedure Act (SPPA) The SPPA codifies and guarantees minimal procedural rights to individuals who are entitled to hearings where a statutory body is required to hold a hearing in the course of making a decision which affects the right of the individual. The SPPA governs all hearings which Boards of Trustees must hold, including suspension appeals, expulsion hearings, and exclusion appeals under s. 265(m) of the Act. The SPPA also governs hearings of the Special Education Tribunal, which is created by the Act. The basic procedural rights guaranteed by the SPPA include: Notice of the hearing (the right to notice);79 The right to be represented by counsel;80 That the matter will not be dismissed without a hearing (right to be heard);81 The right to examine witnesses (right to respond to allegations);82

In addition to the rights enumerated above, the SPPA sets out a number of other procedural rights

79 80

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.at s. 6(1). Ibid at s. 10. The right to representation is not a completely unfettered right where an individual has the right to be represented by anyone of their choosing. A person has the right to be represented by anyone who is licensed with the Law Society of Upper Canada, however, to avoid inefficiency in the proceeding and abuse of processes, the Law Society has placed restrictions on who can be and unlicensed representative. This list can be viewed online at: http://www.lsuc.on.ca/paralegals/a/exemptions/. 81 Supra, note 76 at s. 4(6). 82 Ibid at s. 10.1.

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Procedural Fairness in the Common Law The common law recognizes that every person is entitled to a minimum level of procedural fairness with respect to the way in which their statutory rights are dealt with by government actors - including school boards - regardless of whether or not the decision or process is governed by the SPPA.83 In Baker v. Canada (Minister of Citizenship and Immigration),84 the Supreme Court of Canada examined the general principles of procedural fairness owed to individuals by administrative bodies. In Baker, Justice LHeureux Dube described many factors that should be taken into consideration when determining the appropriate level of procedural fairness. The fundamental tenant of procedural fairness is to provide individuals with a fair opportunity to influence the outcome of a decision. This usually requires a right to notice of the decision, a right to be heard, a right to respond to the; allegation and a right to an unbiased decision maker.85 The evolution of procedural fairness principles has been the subject of entire textbooks, and is beyond the scope of this paper. Charter of Rights and Freedoms and Human Rights Code Finally, it should be noted that overriding the Act and the way in which school boards carry out their obligations under the Act is the Charter. The Charter is part of the Canadian Constitution and requires that government actors - including school boards - carry out their duties and powers in a way that does not interfere with or impair the individual freedoms and rights recognized in the Charter (including freedom of religion, equality rights and liberty rights) except as may be reasonably necessary in a free and democratic society. A parent or student whose Charter rights are infringed by the actions or decisions of a school board has recourse to the courts to enforce those rights. Additionally, in providing educational services to students, school boards are governed by section 1 of the Ontario Human Rights Code, which requires equal treatment in the provision of services without discrimination based on grounds which include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. A full review of the impact of the Charter and the Human Rights Code is beyond the scope of this paper. Suffice to say that both guarantee equality rights to students in the manner in which school boards provide their services.

83 84

Gianfrancesco v. Junior Academy (2003), O.J. No. 931. [1999] 2 S.C.R. 653. 85 Canadian Administrative Law, G. Regimbald, (2008) at p. 217.

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