School Discipline (Suspensions and Expulsions)

A child’s right to receive an education is an important one, which should not be lightly taken away. As a result, children both in private and publicly funded schools are entitled to have the allegations fairly and impartially investigated and have an appeal process from a principal’s decision to expel or suspend a student for more than one day. Especially in publicly funded schools, those appeal hearings can be quite complex. This is because, in publicly funded schools, a student can evoke his or her rights under the Canadian Charter of Rights and Freedoms to a fair hearing and protection from actions that might be considered discriminatory on the basis of a disability or being a member of a historically marginalized group. Still, even in private schools, the Ontario Human Rights Code may have application if the basis of the discipline could be somehow considered discriminatory. Consequently, it can be really helpful, and even dramatically increase the chances of success by being represented by a lawyer. Having the lawyer at least teach you what to say, can have a dramatic impact on the outcome as the school will have to fairly consider all of the legal considerations applicable to the situation.

When suspending or expelling a student, the school must provide a letter that explains what penalty the school is imposing (including the precise length of any suspension), the events or behaviour that the school says led to that penalty, a reference to which ground for suspension expulsion the school is relying upon, and the appeal route that is available to the student to challenge the punishment. (Private schools may not have to provide an appeal route where there has been an appropriate hearing before the discipline was imposed.) 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, with an opportunity to be heard before making the punishment final. That often occurs before the penalty is imposed and the school writes the letter.

The video sets out what steps parents and students should take after getting the suspension or expulsion notice letter from the school.

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 that 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 to consider mitigating factors and has no choice but to upend 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. 

Click here for more details about appealing a child’s suspension from a publicly funded school.

Sections 306 and 310 do not govern private schools. Those schools set what conduct leads to suspension or expulsion in their policies. Once a private school accepts a student, it cannot simply refuse to kick students out on the basis that it is a private business that can do business as it sees fit. Once a student is accepted into a private school, the school can only remove that child if that child does something that the school’s policies (or its “contract” with the parents) say leads to suspension or expulsion and it can only do so after a fair hearing. With that said, many of the “less established” private schools have very one-sided contrasts that permit the school to expel students for almost anything. In those cases, fighting an expulsion can end up being a complex court case challenging the validity of the private school’s contract with parents. 

A shocking 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. Those statistics suggest that many suspensions or expulsions may be a form of discrimination as they result from a school being unable, or unwilling, to meet a child’s needs as the Education Act and Ontario Human Rights Code require. 

Publicly funded schools must also follow the Ministry of Education’s Policy/Progam Memorandum Number 145 on student discipline. That directive requires School Boards to have tried a lot of steps before suspending or expelling a student and requires that such discipline be imposed only when it will assist a student’s education. If the behaviour is the manifestation of a student’s special needs, then using the process for identifying and assisting with those special needs is the appropriate path to follow instead of suspension or expulsion. 

Of course, there can also be times when the school’s investigation is inadequate and the teachers or principals get the facts all wrong. In that situation, getting a proper hearing, or pursuing an appeal, may change the punishment entirely or even result in the school rescinding the punishment.

Each school has some latitude in establishing its appeal procedure. However, for public schools, the Education Act does set some requirements and the hearing must have some formality about it. There are rules for such hearings that must be followed. The school must provide information about that when suspending or expelling a student. It must also tell the student and parents how long they have to appeal. Suspension appeals can go through several levels at the board. After going through the School Board’s hearing process, expelled students or their parents can appeal an expulsion to the Child and Family Services Review Board.

It is important to remember 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. Even if you are trying to resolve matters with the school board, you still have to take the steps to bring your appeal on time – or you will lose your right to appeal. If you lose your right to appeal, then the Superintendent of Education, or other School Board Officials, may lose interest in speaking to you to resolve matters.

Also, a student cannot be expelled or suspended without going through the proper procedure. Students cannot be kept out of a publicly funded school using an “exclusion” or a “trespass notice.”

Schools cannot use suspensions, expulsions, exclusions or trespass notices to avoid accommodating a child’s special needs

If your child has been suspended or expelled it, is important to speak to an 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 record and expulsions obviously not only stay on the student’s record but profoundly affect his or her education. To contact Ontario Education Lawyer, John Schuman, call 416-446-5869, email him, or use the form below.

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To contact John Schuman, Education Lawyer, call 416-446-5847, email him at john.schuman@devrylaw.ca, or use the form on this page.

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