Tag: Right to Appeal

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:

1. 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.

2. 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:

1. 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.

2. 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

“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.”