Children in Ontario have a right to attend publicly funded schools. Except in specific circumstances, School Boards cannot refuse to allow a child to attend school. Public School Principals can suspend their students from attending school for up to 20 days to discipline specific types of behaviour. The student, or the student’s parents, have the right to appeal that suspension. However, since the School Board has 15 days to convene the suspension appeal from the date it receives a Notice of Appeal, the child is often back at school before the appeal hearing. In most cases, the appeal is about what record is in the child’s Ontario School Record.
Note that these rules for suspensions do not necessarily apply to private schools or independent schools, and in most cases do not.
The Suspension Notice and Notice of Appeal
A student is not suspended until the parents (or the student who is 18) gets the written letter saying the student is suspended that sets out the following:
- The reason for the suspension.
- The duration of the suspension.
- Information about any program for suspended pupils to which the pupil is assigned.
- Information about the right to appeal the suspension including the contact information for the Board Superintendent to whom the parents must send the Notice of Appeal and a copy of the Board’s policies and guidelines for suspension appeals.
Section 309(3) of the Education Act says that parents must send their Notice of Suspension to the appropriate superintendent within 10 days of receiving the letter from the principal.
The Grounds to Appeal a Suspension
A parent cannot appeal their child’s suspension for any reason. There are three specific bases on which to challenge a principal’s decision to suspend a student:
- The alleged behaviour did not occur;
- The alleged behaviour is not behaviour for which a student can be suspended either because:
- The principal did not properly consider the mitigating factors that would require that the student not be suspended.
This page will cover these grounds, as they are the ones that parents should choose from when writing the notice of appeal.
Challenging the Facts Alleged By the Principal
It is possible that, after doing an investigation, the principal got the events wrong and suspended a student for something that the student did not do. This is, by far, the most difficult basis on which to win an appeal. In any appeal the principal is assumed to have gotten the basic facts right, unless, there is evidence to show that the principal got it wrong. Where a student’s version of events differs from the principal’s, it is likely that the Board members hearing the appeal will believe the principal’s version - unless there is some objective evidence supporting the student's story. So, parent need to gather written witness statements and see if there are other documents that support the student’s version.
As part of the appeal process, the parties have to exchange the evidence that they have that is relevant to the appeal. Often, the principal provides this disclosure in the days leading up to the appeal hearing and rarely any earlier. However, it is important for the parents to carefully review that disclosure to see if there is anything that supports their child’s case, whether there is anything that might undermine the principal’s credibility, and whether there are any notes or other forms of documentation that are suspicious by their absence. That can all be used to challenge the version of the facts presented by the principal at the appeal hearing.
Making Sure the Behaviour Is A “Suspendible Offence”
Students cannot be suspended for any form of bad behaviour. Section 306 of the Education Act, sets out all the behaviour for which a student may be suspended. That list is as follows:
- Uttering a threat to inflict serious bodily harm on another person.
- Possessing alcohol, illegal drugs or, unless the pupil is a medical cannabis user, cannabis.
- Being under the influence of alcohol or, unless the pupil is a medical cannabis user, cannabis.
- Swearing at a teacher or at another person in a position of authority.
- Committing an act of vandalism that causes extensive damage to school property at the pupil’s school or to property located on the premises of the pupil’s school.
- Any other activity that is an activity for which a principal may suspend a pupil under a policy of the board.
With regard number seven above, parents have to check the Suspension/Expulsion policy of their child’s particular board to see what other specific behaviour can be the basis for a principal to suspend a student.
In addition to the above, the following behaviour are ones for which a principal is required to suspend a student (these are also behaviours for which a School Board may expel a student):
- 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 or cannabis to a minor.
- Repeated Bullying.
- Bullying that creates an unacceptable risk to the safety of another person.
Other more severe forms of the behaviour listed above can lead result in a mandatory suspension or expulsion.
If the alleged behaviour does not fall under one of the categories set out above, then the student cannot be suspended for it. So, for example, a student cannot be suspended for repeatedly not doing homework - unless there is a Board policy that allows a student to be suspended for that. It is important to check the Board policies to make sure the alleged behaviour is listed there. If the alleged behaviour does not fall in the list of “suspendible offences” then the appeal will be successful.
The appeal will also be successful if the behaviour is not closely linked to the school. Section 306(1) of the Education Act says that a student can only be suspended for behaviour that student engaged in:
- 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
With regard to the last point, the Child and Family Services Review Board has held, in J.G. v. Kawartha Pineridge District School Board, that for an activity to impact the school climate, there must be a close “nexus” between the activity and the school AND it must affect the “school climate” generally, not just one or two students. So, if a student shoplifts on the weekend, or does or traffics drugs at a party that is not related to school, or gets into a fight that has nothing to do with school, even if the student is criminally charged, he or she cannot be suspended from school (although the terms of Criminal Court Orders can force a child to change schools).
Ontario Regulation 472/07 sets out a number of factors that a principal must consider before suspending a student. These factors, which are often the focus of successful appeals, are all ones that reduce the length of a suspension or make a suspension entirely inappropriate. The factors that a principal is required to consider before suspending a student are:
- The student does not have the ability to control his or her behaviour.
- The student does not have the ability to understand the foreseeable consequences of his or her behaviour.
- The student’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
- The student’s history (if it mitigates these seriousness of the behaviour).
- The absence of a progressive discipline approach being used with the student, if that approach was possible.
- Whether the activity for which the student may be or is being suspended was related to any harassment of the pupil because of his or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.
- How the suspension or expulsion would affect the student’s ongoing education.
- The age of the student (if it mitigates the seriousness of the behaviour).
- whether the suspension is likely to result in an aggravation or worsening of the student’s behaviour or conduct.
- In the case of a student for whom an individual education plan has been developed,
- whether the behaviour was a manifestation of a disability identified in the student’s individual education plan,
- whether appropriate individualized accommodation has been provided.
It is also possible to challenge a suspension on human rights grounds. For example, repeated suspensions are often an indication that the school is not meeting a student’s needs or does not have appropriate strategies in place to educate the student. Where a school is not accommodating a student’s special needs, it is possible to raise arguments pursuant to the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms. However, usually it is not necessary to resort to such arguments because it is already possible to challenge a suspension based on mitigating factors 6 and 10 above.
The Appeal Process
If a principal suspends a student to conduct an investigation into whether the student should be expelled, there is no right of appeal until after the principal has completed the investigation and the child receives a suspension rather than being expelled. Section 310(4) of the Education Act says that a principal can only suspend a student for 20 school days to allow the principal to make that decision.
In all other cases, section 309(6) of the Education Act says that the hearing of the suspension appeal must occur within 15 school days of when the parents deliver their Notice of Appeal. While the School Board can set up the precise procedure for the hearing of the appeal, it must be heard by School Board Trustees. The precise procedure is set in the School Board’s policy regarding suspensions and expulsions. In most cases, it is a committee of three or more trustees that hear the appeal. The hearings are usually short. Few School Boards contemplate having witnesses and cross-examinations at a suspension appeal. However, the hearing must give all the sides an opportunity to be heard. While there is no right of further appeal from the School Board’s decision, the lack of procedural fairness can give parents a basis on which to ask the Courts to intervene.
The video below contains additional information on appealing suspensions and expulsions.
Also, note that an “exclusion” or a “trespass notice” are not the same things as a suspension or expulsion. Principals and School Boards cannot use an “exclusion” or a “trespass notice” to prevent a student from attending the school in which that student is enrolled.
Children’s Rights Lawyer, John Schuman, and his colleagues have extensive experience in appealing suspensions and in advocating for children who are running into difficulties at school. We can provide legal representation at an appeal hearing, or negotiations, or we can just provide information and advice about the process. Call us at 416-446-5869, email us, or use the contact form below to set up a consultation to set up a plan to meet your child’s needs and your budget.
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