Tag: Education Law

Back To School Amid Covid-19?

The Ontario Superior Court of Justice (ONSC) has recently, and in numerous instances, been called upon to decide the question as to whether children should be sent back to school amid the current Covid-19 pandemic. According to the Guide to reopening Ontario’s schools issued by the Ministry of Education, parents can choose between online schooling from home or in-person schooling for the next semester. However, when separated or divorced parents cannot agree on this, the courts are, often perhaps unnecessarily, asked to get involved.

This Blog reports on four Endorsements released on this issue by the ONSC over the course of the last few weeks and comments on alternative strategies to resolve the back to school question in the best interest of the child and everyone involved.

Home-schooling may only be ordered when a medical condition or the safety of a child’s inner circle requires it

The two cases Chase v Chase and Wilson v Wilson come to different outcomes that can nevertheless be reconciled. In Chase, the ONSC ordered for the child to be registered for in-person schooling, whereas the court came to the opposite conclusion in Wilson. Factually, the two cases differ, because only in Wilson did the court find that there were underlying health concerns, namely asthma, that would put one of the Wilson children at disproportionate risk if they had to return to school in September. This important health factor is was weighted by the court and balanced against the child’s mental health, psychological, academic and social interests, as well as many parents’ need for childcare which usually speak in favour of attending school in-person.

The ONSC’s approach to expert evidence on the safety of in-person schooling

Notably, the ONSC in Chase pays deference to the government’s decision to reopen schools. The court holds that the government is better placed to decide upon the reopening than the courts are because the government is benefitting from extensive expert evidence and is conducting consultations with relevant stakeholders on this matter. As a consequence, the ONSC rejects to consider a recently released report by the Toronto Hospital for Sick Children that the parties, in this case, made reference to in the proceeding. Stating that there is evidence on both sides, the ONSC declines to be the adjudicator between differing expert opinions, leaving it to the government to evaluate the conflicting evidence. The court does, however, look to the particular facts of each case to determine whether there are individual risk factors that weigh in favour of making an exception from the general in-person attendance requirement set out in the respective provincial Education Act, i.e. in s. 21(1) of the Ontario Education Act, R.S.O. 1990, c. E.2

In its finding in Chase, the ONSC draws upon non-binding, yet persuasive arguments from two Quebec Superior Court decisions delivered on May 7, 2020: Droit de la famille – 20641, 2020 QCCS 1462 (CanLII) and Droit de la famille – 20682, 2020 QCCS 1547 (CanLII). The two decisions, too, come to different conclusions due to the fact that in only one of the two cases a family member suffers from a medical condition that puts the family at disproportionate risk, outweighing the child’s interest to return back to school.

The approach by the ONSC taken in Chase following the Quebec decisions falls neatly in line with the principled division of powers between the executive branch and the judiciary. It is the responsibility of the government to establish general policies with broad application, whereas the judiciary has to focus on individual cases in order to ensure that the government’s policies in their application to actual people do not lead to unintended hardships.

In Wilson, however, the ONSC takes a slightly different approach. Here, the court in fact considers the report of the Toronto Hospital for Sick Children, which recommends a return to in-person schooling. The court determines that it is unclear whether the in-person plan actually conforms with expert reports and that it appears to lack some of the recommended safeguards. The court concludes that it did not have any evidence to the contrary that returning to school was safe. To some degree, the ONSC in this case did evaluate the evidence and made a finding on its reliability in order to justify a decision that diverges from the recommendation of the Sick Children report. For this reason, it remains somewhat unclear whether reliance on expert reports will help a parent’s case to achieve the desired order.

Conclusion from current case law

In a third decision, Manabat v. Smith decided on September 2^nd and involving one of DSF’s family lawyers, Katelyn Bell, the court affirmed a test previously set out in another very recent case, Zinati v. Spence, 2020 ONSC 5231. This test summarizes the factors determined in the (sparse) case law on the question of whether it is in the child’s best interest to be schooled at home or in person during the current pandemic:

The risk of exposure to COVID-19 that the child will face if she or he is in school
or not in school;
Whether the child or a member of their family is at increased risk from COVID-
19 as a result of health conditions or other risk factors;
The risk a child faces to their mental health, social development, academic
development or psychological well being from learning online;
Any proposed or planned measure to alleviate any of the risks noted above;
The child’s wishes if they can be reasonably ascertained; and
The ability of the parent or parents with whom the child will be residing during
school days to support online learning, including competing demands of the
parent’s work or caregiving responsibilities or other demands.

Overall, the outcome of every case will really depend on the children and the family involved.

Alternatives to an Application to Court

A further comment made by the ONSC in Wilson deserves mentioning. The Honorable Justice Himel points out that bringing the issue of whether the child should return to school or not before a judge is not the most recommendable course of action. For one, the decision is likely going to be made on the written evidentiary record due to a lack of time and resources and a large number of emergency applications that need to be decided upon before school starts. This means that a judge who has never met the parties, let alone the child, will decide on what is in the best interest of the child and the family. A course of action that would empower the parties to make the decision and yet provide the benefit of professional advice and opinion is court-based mediation. This service is readily available and often free or subsidized. It has the further benefit of mitigating the tremendous burden on the family justice system that has arisen from the Covid-19 pandemic.

If you have more questions about your education law matter for both private or public schools contact John Schuman at 416-446-5080 and john.schuman@devrylaw.ca or Katelyn Bell at 416-446-5837 and katelyn.bell@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Fauzan SiddiquiBlog, COVID-19, Education Law, Family LawSeptember 17, 2020January 12, 2021

DSF Lawyer Gets Damages For a 3-Year-Old Subjected to Harsh and Degrading Treatment at a Private School

DSF’s education lawyer Katelyn Bell successfully defended the parents of a three-year-old student against a claim for unpaid tuition. The pupil’s parents were instead awarded $2,000 in damages against the school.

The Plaintiffs own a private Montessori school which has what they claim to be a “strict uniform policy” for all enrolled students. The pupil in our case – again, only three years old – was uncomfortable in her uniform and although the school raised no issue with the pupil not having worn her uniform on the first day of school, on the second day, the Plaintiff’s, the private school owners, refused the pupil entry. The evidence was clear that the pupil heard the Plaintiff school administrators deny her entry and that denial caused her to cry and grow fearful of school and of the Plaintiffs.

The Plaintiffs never contacted the Defendant parents about this incident and their decision to refuse the pupil entry after she arrived to her second day of school with her nanny.

Just days after having had their child refused entry at school, the Defendants received notice from the Plaintiff’s that all tuition for the entire year of school was due and payable.

The Court did not agree. Not only was no tuition payable despite the school’s Enrollment Agreement (their contract) but the Defendant parents were also awarded damages against the school.

The Judge hearing the matter in Burlington provided the following reasons for the Court’s decision:

The school’s own handbook asks parents not to approach them with issues in front of their children. Therefore, it was reasonable that this expectation would apply to the school as well.
The school’s materials included the following as a prohibited practice:
1. “Use of harsh or degrading measures or threats or use of derogatory language directed at or used in the presence of a child that would humiliate, shame or frighten the child or undermines his or her self-respect, dignity or self-worth”; and
2. “It is important to note that such discussions should never be held in the presence of the child”.
The tone and demands made to the pupil and her nanny were harsh and degrading that humiliated the pupil to the point that she cried and refused to return to the school and there was no notification to her parents about the incident.
There was an understanding from the pupil’s parents that the uniform policy would be respected as they had two other children who already attended the school in full uniform. They just needed some more time to prepare the full-uniform and to allow the pupil to acclimatize to it. It was reasonable for the parents to have expected the situation be handled with more care to allow for a gradual transition to school.

The judge concluded that the Defendant parents were within their rights to terminate their child’s enrolment due to breach of contract as the school failed to follow their own policies, as set out in their Enrollment Agreement, Parent Handbook and their website. As a result, the Plaintiff school’s claim was dismissed and the pupil’s parents were awarded damages of $2,000 for reimbursement costs of alternative child care, the days the parents took off from work and the return of the cost of tuition for the entire month of September.

So, what does this mean for you and your child(ren)?

Just because you have signed a contract with your child’s school that all tuition is payable, no matter what the circumstance, this may not always be the case.

Failing to adhere to school policies from either party can become the basis for breach of contract.

Private schools should also be vigilant about maintaining clear and open communication with parents instead of relaying information through third parties such as nannies and caretakers.

Finally, strict compliance with certain policies should be adjusted keeping in mind the age of the student and the parent’s willingness to work with the school to ensure compliance.

Katelyn has acted as counsel for the following reported decision:

Prestige Montessori v Muhammad and Amina Shahzad

By Fauzan SiddiquiBlog, Education LawJune 18, 2020September 29, 2020

My child has been suspended from school. Do I have the right to appeal this decision?

In Canada, a child’s right to receive an education is an important one. As a result, children both in private and publicly funded schools are entitled to have any allegations put forth against them, fairly and impartially investigated. Additionally, an appeal process whereby the principal’s decision to expel or suspend a student for more than one day should form part of the process – particularly in publicly funded schools whereby a student can evoke his or her rights under the Canadian Charter of Rights and Freedoms to a fair hearing. However, it should be observed that the nature of these appeal hearings can be somewhat complex. Consequently, having legal representation can significantly increase chances of success and ensure that the opposing party is in compliance with human rights legislation and will fairly consider all legal considerations applicable to the situation.

When the decision is made to suspend or expel a student, the school must provide written communication that explicitly explains what penalty the school is imposing, including the precise length of any suspension. The school must also detail the events or behaviour that led to the decision, a reference to which ground for suspension or expulsion the school is relying upon, and the appeal route that is available to the student to challenge the punishment.

The suspension or expulsion may not be valid unless the letter sets out all of these considerations. In addition, the school must provide the student, and the parents, an opportunity to be heard before making the punishment final.

For publicly funded schools, the Education Act sets out two types of activities that relate to suspension or expulsion:

Activities for which a principal may suspend a student, but does not have to suspend a student. These are listed in section 306 of the Education Act. In deciding whether to expel a student for the type of conduct described in this section, the principal must consider mitigating factors, both in terms of whether suspension is appropriate, and if so, for how long.

Activities for which a principal must expel a student and may expel the student. These are listed in section 310 of the Education Act. Probably the most recognized conduct that falls under that section is repeated bullying. Since suspension is mandatory for the conduct described in this section, the principal does not have consider mitigating factors and has no choice but to suspend a student. While a student is suspended for one of these possible offences, the principal is required to further investigate whether the student ought to be expelled. The principal can then decide to expel the student.

Private schools on the other hand, are not governed by Sections 306 and 310. Instead, the conduct that is likely to result in a suspension or an expulsion is specified within the school’s policies or contract, if you will. Nevertheless, once a private school accepts a student, it can only remove a student as permitted by its contract with parents. Sometimes those contracts incorporate a “code of conduct” that sets out rules and procedures for suspension. Others just give the school absolute discretion to remove a student, which is only tempered by human rights laws. A fair hearing is required before such measures are finalized.

A public school principal must consider certain factors which affect the overall decision. Among other considerations, these can be mitigating factors for a suspension, or evidence that a child did not intend the actions that could lead to an expulsion.

Some examples of these factors are:

A child who has been the repeated victim of bullying and feels vulnerable until the day he or she responds violently to the aggression of a bully.

A child who has special needs which are not being met and who is either frustrated, or in a position where he or she feels the need to act out of character for attention, or whose disability makes the impugned action involuntary.

A surprising statistic is that children who are receiving special education services in public schools represent less than nine percent of the total student population. However, children with special education needs make up almost 50% of all students who are suspended or expelled from school. Statistics such as these, suggest that many suspensions or expulsions may be a form of discrimination as they result from a school who is unable or unwilling, to meet a child’s needs according to the Education Act and Ontario Human Rights Code.

Each school has some latitude in establishing its appeal procedure. However, the Education Act does set some requirements and the hearing must adhere to some formality as there are rules pertaining to such hearings that must be followed. This information must also be conveyed to the parents or guardians of the child and the length of time in which they have to appeal.

Furthermore, it is important to note that “informal discussions” with a Superintendent of Education, that are not part of the school’s formal appeal process, do NOT extend the deadline for bringing an appeal. If you are trying to resolve matters with the school board, you still have to take the necessary steps to bring your appeal on time – or you will lose your right to appeal.

If your child has been suspended or expelled, it is important to speak to an experienced education lawyer immediately. The time lines for appeals are short – and there may even be things the lawyer can help you do before bringing an appeal to resolve matters. Suspensions stay on a student’s records and expulsions obviously not only stay on the student’s record but profoundly affect his or her education.

For assistance with education law, contact education lawyer, John Schuman of Devry Smith Frank at 416-446-5080

By Fauzan SiddiquiBlog, Education LawJune 25, 2019July 5, 2023

What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean?

On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum. To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations. The decision does not apply to private school teachers as they do not have to follow the Ontario Curriculum at all. This page will provide a general overview and explanation of the Divisional Court’s decision about what sexual education curriculum is in place in public schools.

The challenge to the Ontario Government’s repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows:

The repeal of the curriculum violated teacher’s freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum.
A prohibition on teaching topics such as “consent” and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do.
A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms.
The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons. As a result of the residential schools system and the “Sixties Scoop”, it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children.
The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so.

The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns. However, it said that the Ontario Government was not preventing teachers from covering the “new” topics in their classrooms. Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics.

Importantly, despite some initial “ill-considered pubic statements”, the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum. The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum. Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum.

Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because:

Nothing in the 2010 Curriculum prohibits teachers from covering these topics.
The Ministry’s Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code.
PPMs 128. 144, and 145 require school to ensure a “safe positive and inclusive school climate”.
The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted.
The Ministry of Education’s position is that how teacher’s meet the above expectations is a matter of the teacher’s professional judgment and discretion.
The 2010 Curriculum allows teachers to “amplify” instruction to include current examples.
Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity.
The Ontario Human Rights Code requires to protect gender identity and gender diversity.

The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government’s decision to repeal the sexual education curriculum. The results of the analysis of large-scale studies of the efficacy and safety of Viagra (Sildenafil) in patients with erectile dysfunction (ED), simultaneously taking antihypertensive drugs (AHDs) have been published. According to the data received, the use of one or more AHDs (diuretics, b-adrenoceptor blockers, ACE inhibitors or calcium channel blockers) doesn’t affect the efficiency and safety of Viagra.

Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the “new topics” in the 2015 curriculum. The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are permitted to do.

The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the “repealed topics” with elementary school students. The Ministry of Education is just not explicitly telling them how to do so.

For more information on legislation pertaining to education in Ontario, contact experienced family and education lawyer, John P. Schuman of Devry Smith Frank LLP directly at: john.schuman@devrylaw.ca, or alternatively, 416-446-5869.

By Fauzan SiddiquiBlog, Education LawMarch 6, 2019June 14, 2020

Is it Illegal For A Teacher To Secretly Film Their Students’ Cleavage?

Most, if not all, of us can likely agree that it is wrong to film someone without their consent. We can also probably agree that it is even more wrong when the filming is sexual in nature. Take for example someone filming you inside your condo while changing and/or focusing their camera in on your private parts. Those same people are probably also in agreement that when it is a teacher filming one of his/her students at school, it is even more wrong.

So hypothetically speaking, if a teacher were to film his students and more specifically, his female students’ chests, without their knowledge, this would be very wrong and that teacher should be sanctioned. Seems pretty cut and dry, right? Wrong.

In late 2010, Ryan Jarvis, a then high school teacher in London, Ontario, was caught secretly filming the chests of his female students with a camera pen. Jarvis filmed over 25 of his female students, all of whom were between the ages of 14 and 18 and all of whom had no idea they were being filmed.

Jarvis was charged with voyeurism under section 167(1) of Canada’s Criminal Code. Section 167(1) reads:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

At trial, Jarvis was acquitted of his charges. According to the trial judge, there was no evidence that Jarvis filmed the students for sexual purposes. On appeal at the Court of Appeal for Ontario, the panel found there to be clear sexual intent but the court upheld the acquittal on the basis of the students having “no reasonable expectation of privacy while at school”.

So although it seems absurd that something so inherently wrong went all the way to Canada’s top Court to decide, it did.

The Supreme Court of Canada was tasked with determining whether the students recorded by Jarvis were in circumstances that gave rise to a “reasonable expectation of privacy.” Jarvis argued that because the students were at school, where there were several other various surveillance cameras, such a reasonable expectation did not exist.

The Supreme Court released their decision yesterday and the court disagreed with Jarvis’ argument and instead advanced a position held by most of the Canadian public: girls (and boys) should be able to go to school without having to worry about whether they are being secretly recorded, especially by someone in a position of trust, such as a teacher.

However, although all nine Supreme Court judges agreed that Jarvis was guilty of voyeurism, the Justices were split on the legalities of the case, thereby demonstrating its complexity and the fact that this was not in fact an “open-and-shut case,” despite many Canadians having felt so.

Ultimately, the Supreme Court’s decision has set clearer (and more expansive) guidelines around what a reasonable expectation of privacy means when in public spaces in the context of voyeurism. The court considered the example of a drone taking high-resolution photographs of unsuspecting sunbathers at a public swimming pool and noted that this too would raise similar privacy concerns to Jarvis’ case.

Not surprisingly, Jarvis’ lawyers feel that the Supreme Court has cast the net of what constitutes a “reasonable expectation of privacy” too wide, but legal scholars, Ontario’s Information and Privacy Commissioner and women’s rights group alike all consider the decision the “right” one in the face of something that was so obviously wrong.

The best way to protect yourself and your children is keep abreast of laws pertaining to education in Ontario. Additionally, it is always recommended that you seek help from an highly experienced legal professional such as John Schuman of Devry Smith Frank LLP who can be contacted at: john.schuman@devrylaw.ca, alternatively, 416-446-5869.

By Fauzan SiddiquiBlog, Education LawFebruary 26, 2019June 16, 2020

Public Schools Cannot Just “Kick Kids Out” – They Must Have A Full Expulsion Hearing

It may seem obvious, but School Principals cannot expel students without actually expelling them. In Ontario, allowing children access to a publicly funded education is a fundamental value. Children should not be deprived of that education, except in extreme circumstances. To deprive a child of the ability to attend school, the principal and the Board must follow the rules and procedures for expelling students. Unfortunately, often School Principal’s take short cuts, which are illegal, to kick kids out of school.

Expelling students is hard. There are lots of rules to follow and students have rights in the process. Unfortunately, principals often try to kick students out of school without actually expelling them. The law says that is not allowed.

To start, principals cannot kick a student out of school because the student is difficult to teach, has challenging or complicated special needs, has difficult parents or other family members, hangs out with the wrong people or is from a bad neighbourhood. Children can only be expelled if they commit very serious offences either while at school or in an activity that is closely linked to school. Those offences are set out in section 310 of the Education Act. They are as follows:

Possessing a weapon, including possessing a firearm.
Using a weapon to cause or to threaten bodily harm to another person.
Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
Committing sexual assault.
Trafficking in weapons or in illegal drugs.
Committing robbery.
Giving alcohol to a minor.
Bullying, if, the pupil has previously been suspended for engaging in bullying, and the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person.
Any activity for which a student might be suspended (such a threatening to cause bodily harm, vandalism, being under the influence of alcohol or drugs or bullying) that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor.
Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil

If the student’s behaviour does not constitute one of the above offences or was not committed at school or can be linked to school, then neither the principal nor the School Board can expel the student. Further, before expelling a student, Ontario Regulation 474/07 requires that both a principal and school board consider whether the student’s behaviour is the result of identified special needs – especially if the school has not been accommodating those needs properly, whether the student has been a victim of bullying or harassment and what effect the discipline will have on the student’s education. These factors MAY make it impossible to expel a student.

The whole process of expelling a student can be very inconvenient. It should be impossible to kick a student out of school because his or her special needs are difficult to accommodate. There are lots of students who can really irritate teachers, but who knows the rules and don’t do anything to get themselves expelled Sometimes a student is weird, or unpopular, or “different”, or does not reflect well on the school. In all these cases, the expulsion process does to work because the school has no basis in law to expel a student.

In those circumstances, where a student’s actions do not allow them to be expelled, principals have taken to just giving students a “Trespass Notice” and telling them that they are not allowed to come onto school grounds anymore. Sometimes, the principal also threatens to call the police if the student tries to come to school. The principal will say that section 265(1)(m) of the Education Act gives a principal the authority to take such action.

Indeed, section 265(1)(m) does give the principal of the school the authority 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.” The principal does not have to hold a hearing, or follow any set procedure before doing this. Unlike for suspensions, which can only be for 20 days, there is no time limit for how long a person can be denied admittance to the school. There are no other obligations imposed on the principal who refuses to admit someone, except to allow that person to appeal the principal’s decision to the School Board. However, there is no timeline for the hearing of such an appeal.

Principals cannot use section 265(1)(m) against their students. Section 3(3) of Ontario Regulation 474/00 says that a principal cannot refuse to admit a student into a school if the student is enrolled as a pupil at that school. To be clear, it is illegal for a principal to refuse to admit a student into the school at which that student is enrolled. It is also a illegal for a principal to issue a “Trespass Notice” to a student in relation to that student’s own school. A principal cannot use a “refusal to admit” or an “exclusion” as a substitute for an expulsion. Parents of students who have been “excluded” should challenge that decision immediately, which may mean an application to the Child and Family Services Review Board.

In its decision in DN v. TDSB, a case in which John Schuman was counsel for the parents and student, the Child and Family Services Review Board both commented on the illegality of a principal “excluding” a student from his or her own school, and gave parents and students recourse when a principal does that. In that case, the CFSRB decided that an “exclusion” of a student from his own school was really an expulsion and should be treated as such. For that reason, the CFSRB decided it could hear the student’s appeal of the principal’s decision as if it had been an expulsion. This is important because the CFSRB is not only an objective tribunal that is completely separate from the school board, but also, it hears appeals within 30 days while a School Board can hear an appeal of a “refusal to admit” whenever it feels like it. The CFSRB also commented that if a child is suspended for more than 20 days, the Board looses the right to expel a student.

If a principal uses section 265(1)(m) to prevent a student from attending school, that student and his parents should immediately file an appeal to the Child and Family Services Review Board. The CFRSRB is a formal tribunal, with its own procedural rules, and that conducts hearings that look very similar to a trial in court, with live witnesses and legal arguments. For that reason, parents may want to consult with an education lawyer prior to starting the appeal. It may be important to do that as principals and school boards can let “exclusions” go on for months, causing a student to lose his or her year, and perhaps fall out of he education system entirely, before the matters resolved.

If a school board cannot meet a child’s special needs within a particular school, including the child’s home school, the school board is allowed to move the child to a school that can better meet a student’s needs. However, the Board must go through the IPRC process to identify the student’s special needs and determine the appropriate school placement. Ontario Regulation 181/98 says parents are entitled to participate in that process… it cannot happen behind the parent’s backs.

Other than that, a child can only be removed from or transferred out of a public school with the parent’s consent (or with the child’s consent when the child is old enough to give it.) Schools, school board’s and principals cannot just tell a student that he or she cannot come to school anymore.

John Schuman is the education lawyer who represented the parents in DN v. TDSB (and other important education law cases like this one). He has helped get many many students back into school with the services they need. To arrange a consultation with him, at a reduced hourly rate, call 416-446-5869 or use the form below. We try to answer all inquiries promptly as we know it is important to get kids back in school. Contact with us is protected by solicitor-client privilege.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Fauzan SiddiquiBlog, Education LawJanuary 3, 2018July 5, 2023

Service Dog Not Allowed in Elementary School

Ontario’s Human Rights Tribunal has recently ruled that a 9-year-old boy with autism does not have the right to bring his service dog with him to class. This ruling marks the first legal disposition of a dispute between parents and their regional school board that began back in 2014. Their son has a certified service dog, and they wanted him to have the animal in the classroom. The parents argued that the dog was essential to their son’s education as the dog is able to control their son’s outbursts and prevents them from happening, enabling their son to suffer less distractions in the classroom.

The school board, Waterloo Catholic, has rejected this argument and refused to permit the dog in the classroom. At the hearing, the school board suggested that the child was performing fine without the service animal and that its presence would not address the issues that the child was experiencing in the classroom.

This is not the first time the Waterloo Catholic School Board has been challenged on its policy with respect to service dogs. In April of 2016 it was reported that a nine year old boy was prohibited from having his service animal accompany him to school.

The School Board has not commented on why it has implemented a policy that restricts service dogs from coming into the classroom. The decision as to whether service dogs have the right to enter the classroom is determined by each individual school board’s own policy.

Under the Guide Dog Act, guide dogs which are certified have the same rights and responsibilities as a person without a dog. This means they are allowed access where the general public is allowed access.

However, while schools certainly deliver a public service, under the Education Act, schools are not considered public spaces; they lock their doors when school is in session. This means that school boards are not required under the Guide Dog Act to permit guide dogs on school property.

Instead, parents look to the Human Rights Code to have the legality of the school board policy on service dogs determined. Under the Code, the school board is required to accommodate disabilities to the point of undue hardship. What constitutes accommodation to the point of undue hardship depends on the particularities of the situation, with the Code prescribing three considerations when assessing whether an accommodation would cause undue hardship: cost, outside sources of funding and health and safety requirements. No other considerations can be properly considered. To claim the undue hardship defence the organization responsible for making the accommodation has the onus of proof. The nature of the evidence required to prove undue hardship must be objective, real, direct, and if cost is a factor, quantifiable.

What this means is that, as recipient of a successful ruling, the school board was able to demonstrate that its legal duty to accommodate students with disabilities does not extend to requiring the school to permit service dogs in the classroom. However, given the individuality of determinations from the Tribunal, it is still open for other situations regarding service dogs in elementary schools to receive an alternate ruling, permitting service dogs in the classroom.

Devry Smith Frank LLP is a full service law firm with experienced lawyers in the areas of Education law and Human Rights litigation. If you require representation for either of these areas, please contact the education law group and human rights group today. If you require representation for any other matter, you may contact our lawyers or call our office directly at 416-449-1400 today.

By: Samantha Hamilton, Student-at-Law

“This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Fauzan SiddiquiBlog, Education Law, Human Rights LawSeptember 5, 2017June 18, 2020

Do Ontario Private Elementary Schools Have to Follow the Same Laws and Standards as Public Schools?

Many parents send their children to Ontario Private (or Independent) Schools because they want to make sure their child gets a “superior education.” There are many private schools that do offer excellent education or that have programs that are particularly suited to certain students. However, that is not guaranteed. When it comes to private education, especially for elementary students, Ontario is really a “buyer beware” market and parents must do their research.

Parents assume that because a school operated in Ontario, it is subject to the Education Act. However, only very small parts of the Education Act apply to private elementary schools. Section 1(1) of the Education Act requires that private schools:

Provide instruction any time between 9 a.m. and 4 p.m. on any school day
Have five or more students;
Have students of compulsory school age
Provide instruction in any (but not necessarily all) of the subjects of the elementary or secondary school course of study.

Beyond that, there are not many standards that apply to private elementary schools. Page 7 of the Ministry of Education’s Private Schools Policy and Procedures Manual contains the following passage:

How are Private Schools Different from Publicly-Funded Schools?

In Ontario, private schools operate as businesses or non-profit organizations, independently of the Ministry of Education. Private schools do not receive any funding or other financial support from the Ontario government.

The Ministry does not regulate, licence, accredit or otherwise oversee the day-to-day operation of private schools.

Private school operators set their own policies and procedures regarding the operation of their schools, and are not obliged to comply with the policies and procedures that school boards must follow. For example:

Private schools are not required to use the Ontario curriculum unless they are seeking authority to grant credits toward the OSSD. Those that do may also offer other content beyond the Ontario curriculum.
In Ontario private schools, principals are not required to have Ontario principal’s qualifications, and teachers are not required to be members of the Ontario College of Teachers (OCT) or have OCT certification.
Private schools are not authorized to deliver correspondence courses, which are delivered through the Independent Learning Centre (ILC). However, a private school can host the student taking such courses.
Private schools may, but are not required to, communicate student achievement using either the Elementary Provincial Report Card (for Grades 1-8) or the Provincial Report Card (for Grades 9-12).

When it comes to private elementary schools, there are very few rules that the school must follow. Most of the requirements are set out in Section 16 of the Education Act but those rules relate mostly to things that few parents care about, such as giving the Ministry notice of the intention to operate a private school and providing the Ministry with statistical information about the number of students, staff and courses offered. There are more rules for private schools that want to award Ontario Secondary School Diplomas, but not for elementary schools.

There are no requirements that private elementary schools offer a minimum standard of instruction, or follow any requirements with regard to things like anti-bullying, discipline (including suspension or expulsion of students) or teaching any particular curriculum or skills.

Many parents have been surprised to learn that private schools can kick out their child without any good reason or without any process because that is what the parents’ contract with the school says. For more on school suspensions or expulsions, watch this video:

All the standards that a private elementary school has to follow are in its contract with the parents. Parents should look at the contract carefully and ask questions. If the contract does not require Certified Teachers, then the school does not have to provide them. If the contract does not require the school to teach certain subjects, then the school does not have to do so. If the contract does not say that the school will follow the Ontario Elementary School Curriculum, then the school probably doesn’t. Most private school contracts include a Code of Conduct which may have no resemblance to the Provincial Code of Conduct, but sets out how students will be disciplined and to what extent the School has the right to impose any form of discipline it wants. Some school contracts specifically allow the school to do whatever it wants. In those cases, the school is subject only to the criminal code, or the right of a Children’s Aid Society to intervene because a “person having charge of a child” has harmed a child or put a child at risk of harm.

With private schools not having to follow a number of rules and regulations, who they decide to employ at their schools should be of interest as well, as the individuals they employ could put a child in harm’s way. In a recent case, Karla Homolka, a serial killer who raped and murdered 3 girls and at the time, was married to Paul Bernardo, has been volunteering at her children’s private elementary school in Montreal. Parents at the school were not advised that she had been volunteering there, and are shocked at the school board’s actions.

Additionally, although private schools are not required to follow the procedures set out in the Education Act and accompanying regulations for exceptional pupils, they are required to follow the Ontario Human Rights Code. In doing so, they cannot discriminate against students and must accommodate special needs to the point of “undue hardship” – unless the contract with parents requires the school to provide specific accommodations. This podcast describes the rights of students with special needs.

Still, it remains very important that parents do their research before enrolling their child in a private school. They need to be clear what sort of education their child will receive and by whom. They should also know what protection from bullying or what special assistance their child may receive. It is also important for parents to know what the School’s Code of Conduct is, how children are disciplined and precisely what can cause their child to be removed from the school. All of these things should be included in the contract with the school, otherwise, the school is not legally required to follow any specific rules when educating a child.

Obviously, it is also important to find out about the school’s reputation and review references or testimonials – as people would do with any big purchase. The Ministry of Education has very little power to assist dissatisfied parents. The most appropriate remedy can be suing the school for breach of contract.

If you are experiencing difficulties with a private school, it is important to figure out what rights you may have, and how the law might help you. Contact Devry Smith Frank LLP’s Education Lawyer, John Schuman for assistance. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

By Fauzan SiddiquiBlog, Education LawJune 6, 2017July 5, 2023

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Tag: Education Law

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Do Ontario Private Elementary Schools Have to Follow the Same Laws and Standards as Public Schools?

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