Wandering children and educator culpability

3 mai 2022 | Renata Antoniuk

( Disponible en anglais seulement )

Educators have a responsibility to supervise children in their care and protect them from reasonably foreseeable risks. Two recent arbitration cases considered whether educators can be disciplined when a student in their care wanders away or goes off school premises unattended.  In each case, a contextual analysis was applied, taking all of the relevant circumstances into account.

In Halton District School Board v Elementary Teachers’ Federation of Ontario,[1] an arbitrator allowed a grievance of a designated early childhood educator (“DECE”) who did not notice that a four year old kindergarten student left school premises unsupervised. The DECE was working with an occasional teacher that day, as the regular teaching partner was away. Neither the DECE nor the occasional teacher noticed that a four year old student did not return to the class after the outdoor break.

Once the DECE noticed that the student was missing, she ran to look for him and located him a few hundred feet away from the school.  The student was with a children’s aid society worker who had found him alone by the road and an open creek.

A failure to adequately supervise a person who is under a DECE’s supervision constitutes professional misconduct for early childhood educators. However, the arbitrator highlighted that allowing a student to wander away does not necessarily warrant discipline. The DECE’s conduct must be judged against a standard of reasonable diligence, not perfection. In allowing the grievance of the DECE’s one day suspension, the arbitrator considered that the DECE had advised the occasional teacher of the student’s safety plan, which she herself had complied with. The arbitrator ultimately found that the DECE’s conduct was not culpable and did not deserve a disciplinary response.

A similar decision was made in Halton District School Board v Elementary Teachers’ Federation of Ontario,[2] a 2019 arbitration in which a teacher failed to confirm the safe transfer of a junior kindergarten student to their family member. The teacher was dismissing students at the end of a school day with the assistance of an early childhood educator. Several students were leaving to attend an after-school program, including Student X, who was meant to attend the program for the first time that day.

The teacher was attending to an ill student when she noticed Student X by the exit doors. She saw a man outside and asked Student X whether the man was his grandfather, to which Student X nodded. The teacher went on to dismiss Student X at 3:12 pm without receiving a wave of recognition from the grandfather or confirming the transfer to the after-school program.

When Student X did not arrive at the after-school program, calls were made to the student’s home and the student’s grandfather found him at approximately 3:49 pm in a children’s park area immediately adjoining the school premises.

The arbitrator allowed the grievance of the two day suspension, recognizing that not every employee mistake, failure or misadventure deserves or requires a disciplinary response. The arbitrator found that by exclusively focusing on the teacher’s failure to confirm the student transfer to a family member, the school board failed to consider various other contextual factors, including: the teacher’s 16 years of service and lack of any disciplinary record; that the teacher was honest and remorseful; that the teacher was not careless or reckless; that there was another supply early childhood educator charged with the after-school program who contributed to what unfolded; and that the student confirmed to the teacher, by nodding, that the man standing outside, not many steps away, was his grandfather.

Summary

Educator discipline must be assessed on individual facts. Not all incidents of inattention warrant a disciplinary response. The primary question that must be answered is whether, taking into account all of the circumstances, an educator failed to exercise reasonable diligence in supervising students in their care.


[1] 2021 CanLII 39378 (ON LA).

[2] 2019 CanLII 96517 (ON LA).

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