School Board’s Expulsion of Grade 2 Student Upheld

May 30, 2019 | Jordan Allison, Nadya Tymochenko

In this decision, the Child and Family Services Review Board (the “Review Board”) upheld the decision of the Upper Grand District School Board (the “School Board”) to expel a Grade 2 student for physically assaulting an educational assistant (“EA”) on school property.  The EA was diagnosed with post-traumatic stress disorder and suffered bruises, contusions and a concussion as a result of the incident.

The student had exhibited violent and aggressive behaviour towards students and staff on several occasions leading up to the expulsion, including threats to kill students and staff which forced the school to evacuate the student’s class and implement hold and secure procedures for the school.  The student also attempted to push a fellow student down the school stairs, resulting in a formal suspension.

Following the assault, the student remained at home while the School Board and the student’s mother attempted to develop a mutually agreeable plan. The School Board’s proposed plan included a gradual, incremental return to school increasing over time to full-day attendance, together with home instruction. The student’s mother objected to any plan that did not immediately include full-time school attendance.

The student was formally expelled from his school by the discipline committee of the School Board only on November 20, 2018.

The Review Board heard a preliminary motion by the School Board to have the Review Board appeal joined to an outstanding application to the Human Rights Tribunal of Ontario, because the application also included issues regarding the School Board’s decision to expel the student.  The Review Board noted the differences in jurisdiction, timelines and potential remedies when denying the School Board’s request.

At the Review Board hearing, the student’s mother sought an order to quash the expulsion and expunge the student’s record.  The School Board took the position that the student’s needs could not be met at his previous school and that staff and students could not be kept safe.

The facts with respect to the behaviour exhibiting injury were not contested.  However, the student’s mother argued that if properly accommodated at school the student would not exhibit behaviour injurious to other individuals.

When deciding whether to uphold or quash the expulsion, the Review Board considered the mitigating factors outlined in Ontario Regulation 472/07, Behaviour, Discipline and Safety of Pupils, and made the following findings:

  • The student could not control his behaviour. He did not have the skills or ability to self-regulate.
  • The student lacked the ability to understand foreseeable consequences that his behaviour might have on himself and others.
  • The student’s continuing presence in the school created an unacceptable risk to the safety of other people. The Review Board noted that this is a high threshold to meet but that, absent any changes, the student’s return to school would create an unacceptable risk to his own safety and/or the safety of others, such that the expulsion was not mitigated by the other two factors.

 

The Review Board also considered the other factors identified in the Regulation 472/07, namely, the student’s history, progressive discipline, the impact of the suspension or expulsion on his ongoing education, his age, whether the behaviour was a manifestation of a disability identified in his individual education plan, whether the appropriate individualized accommodation was provided, and whether the expulsion was likely to result in an aggravation or worsening of the student’s behaviours. None of the factors were found to be sufficiently mitigating in the circumstances.

As a result, the Review Board denied the appeal and upheld the School Board’s decision to expel the student from his school.

School boards have generally been reticent to expel young students for behaviour exhibited as a result of the manifestation of a disability and, thereby, creating disciplinary record for behaviour that the student could not or had a limited ability to control.  However, this recent decision of the Review Board provides some insight to the way in which the Review Board might evaluate the difficult decisions that school boards need to make when a student’s behaviour creates a risk to the safety and well-being of other individuals in the school.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at privacy@millerthomson.com.

© 2019 Miller Thomson LLP. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com.