Expulsion Expunged Because Suspension was Not Mandatory

October 28, 2011

In a recent decision, the Child and Family Services Review Board allowed an appeal of an expulsion from the Rainbow District School Board because the student was not subject to a “mandatory” suspension pending expulsion.

The appeal of an expulsion of a student for posting threatening and inappropriate comments on Facebook was allowed by the Child and Family Services Review Board.

The School Board relied on section 310(1)(8) of the Education Act in order to expel the student. That section states:

A principal shall suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate: (8). Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil and therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil be expelled. [emphasis added]

The provision relied on by the principal to suspend the pupil prior to conducting an investigation to determine whether or not an expulsion should be recommended stated:

Suspension shall be considered when a principal’s investigation of an incident, which should include consultation with the pupil’s parent/guardian and pupil or the adult pupil, determines that the pupil has committed one or more infractions outlined below on school property, during a school-related activity or event and /or in circumstances where the infraction has an impact on school climate. [emphasis added]

(m) Any act considered by the principal to be injurious to the physical or mental well-being of members of the school community.

The Child and Family Services Review Board held that this infraction could not be relied upon by the principal to recommend an expulsion nor by the Board’s Discipline Committee to impose an expulsion, because the principal was not required to suspend the student. The suspension was only to be considered by the principal. As such, the offence did not fall within section 310(1)(8) because it was not an activity that, under a policy of a board, is an activity for which a principal must suspend a pupil”.

The expulsion was quashed.

Given this recent decision, school boards should consider revising their student discipline policies with respect to their list of additional suspension infractions which may lead to expulsion, pursuant to section 310(1)(8) of the Education Act. School boards might consider amending their policies to indicate that, where the mitigating and other factors do not apply, the principal shall suspend the student for such an infraction.


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