( Disponible en anglais seulement )
Recently, in K.W. v Toronto Catholic District School Board, 2018 ONSC 2794, the Divisional Court confirmed that school boards have the authority to impose an administrative transfer on a student to preserve the safety and well-being of other students.
By way of an Application for Judicial Review, a grade 11 student (the “Student”) challenged the Toronto Catholic District School Board’s (the “Board”) authority and decision to have him transferred to a new school as a result of an incident during which he, and others, assaulted another younger student (the “Victim”).
The Student alleged that the Board did not have the authority to develop and implement its Fresh Start Policy, which permitted administrative transfers of students (the “Policy”), because Ontario’s Education Act (the “Act”) contained a complete procedural framework at Part XIII for expulsion matters. The Student claimed the Policy was an attempt to circumvent the procedural protections afforded to a student by the Act; and therefore, the Policy ought to be struck, and the Student should be allowed to return to his original school.
On April 28, 2017, the Student and others assaulted the Victim, who was found by the vice-principal with ripped clothing, visible scratches and bumps on his body. On April 30, 2017, the police advised the principal that the Student and the other assailants were not allowed to return to the school. On May 2, 2017, the principal placed the Student on a 20 school day suspension.
Between May 2 and May 9, 2017, the principal conducted her investigation, during which the Student admitted that he had assaulted the Victim. The principal asked the Victim how he would feel if the Student were allowed to return to the school and, based on the Victim’s reaction, concluded that the Student’s return to the school would pose a risk to the physical and mental well-being of the Victim. On May 9, 2017, applying mitigating and other factors, the principal reduced the Student’s suspension to five school days and imposed an administrative transfer. For other reasons, the Student remained in the program for suspended students for the balance of the school year.
In September, the Student was advised that he was not allowed to attend the school from which he was suspended because an administrative transfer had been imposed on him. On September 20, 2017, the Superintendent of the Board convened a meeting at the Student’s request to review the principal’s decision and provide the Student an opportunity to explain why he should not be transferred from the school. After listening to the Student, the Superintendent upheld the principal’s transfer decision.
The Court found that the Policy was not designed to impose transfers for disciplinary reasons or to be punitive. Rather, the Policy dealt with the management of student behavior and focused on the protection of victims. As a result, the Court held that the Board had the authority to adopt the Policy and to impose a transfer for the following reasons:
- section 32 of the Act gives a student the right to attend at a school, not any particular school;
- section 169.1 of the Act requires school boards to develop and maintain policies and organizational structures to promote student achievement and well-being;
- consistent with section 169.1, the purpose of the Policy is to ensure that students feel safe while at school;
- subsection 265(1) of the Act provides a principal with the power to impose a non-voluntary transfer;
- the Policy/Program Memorandum No. 145 of the Ministry of Education contemplates non-disciplinary transfers to preserve school safety and student well-being; and
- the 2007 settlement documents between the Ontario Human Rights Commission and the Minister of Education identified a “transfer” as a possible form of progressive discipline.
Having concluded that the Board had the authority to adopt the Policy, the Court reviewed the Superintendent’s decision to ensure that it was procedurally fair and reasonable. The Court concluded that the Student was not denied procedural fairness and the decision was reasonable because: (i) the Student and his legal guardian were afforded the opportunity to be heard and made submissions to the Superintendent as to why the Student should be allowed to remain at his school; and (ii) the Student was provided with the opportunity to complete his academic program at a new school.
School boards may be able to impose an administrative transfer on a student to preserve the safety and well-being of students where a policy provides authority for such a transfer. However, if the school has disciplinary concerns with respect to a student, the school should rely on and engage the discipline provisions under Part XIII of the Act.
Where a transfer is contemplated, it is important for the school administration to keep contemporaneous records of all events leading to the transfer decision and to provide the student with an opportunity to be heard.