Education Law
News
Borden Ladner Gervais LLP
Lawyers • Patent & Trade-mark Agents
Summer 2003
www.blgcanada.com
IN THIS ISSUE
1
CH A L L EN GE TO SCHOOL
ATTENDANCE AREA DENIED
Challenge to School
Attendance Area Denied
– Robert W. Weir
The Education Act confers on school boards the power to
establish attendance areas for schools within its jurisdiction. This
2
is a fundamental and long-standing power. By the use of such
New and Improved:
power, school boards are able to limit enrolment at popular
A Revised Police/School
schools and require students to attend schools they may not
Board Protocol
otherwise wish to attend. The extent and use of this power has
– Eric M. Roher
rarely been challenged in court. The establishment of attendance
areas has typically been done on a purely geographical basis. An
3
expectation exists that students who reside close to a school will
Legal Update: Dealing
be entitled to attend that school. However, this expectation is not
with an Exceptional
always the case. In the City of Toronto, for example, a number of
Student Who May be a
Safety Risk
– Michelle Henry
attendance areas have been established that reflect local
circumstances and the difficulty of funding new school
construction in highly populated areas. One such attendance area
has been established for Earl Haig Secondary School ("Earl
Haig").
The attendance area for Earl Haig was established in December
2000, after more than a year of extensive research and
consultation. The attendance area was established because of
severe overcrowding at the school. Much of the overcrowding,
and projected overcrowding, was caused by the proliferation of
condominium units in the Yonge Street and Sheppard Avenue in
the immediate area around Earl Haig. Accordingly, after extensive
local consultation, the Toronto District School Board (the
"Board") adopted an attendance area that
report concluded that students
barred students who moved into these
residing in new residential
newly constructed condominiums from
developments occupied after
attending Earl Haig.
November 22, 2000 be re-directed
to a school other than Earl Haig.
The main aspects of the consultation
process were as follows:
(vii) In a Staff Response Report dated
December 13, 2000, staff members
(i)
Mr. Justice Dilks found
that the decision of the
approved the recommendations
instructed the Director of
contained in the ARC report. The
Education to prepare a report for
Board adopted each
the Board regarding the
recommendation at a meeting held
overcrowding at Earl Haig and
on December 13, 2000.
possible solutions.
(ii)
Board establishing
restrictions to the Earl
(iii)
was “eminently
(iv)
circumstances.
(viii) On December 19, 2000, the Board
In her report dated February 9,
passed a formal resolution adopting
2000, presented to the Board on
the recommendations contained in
February 23, 2000, the Director
the Staff Response Report and
recommended that an area review
establishing a new Earl Haig
committee be established for Earl
attendance area.
Haig.
Haig attendance area
reasonable” in the
On August 25, 1999, the Board
(ix)
Between December 19, 2000 and
In September 2000, the Earl Haig
June 14, 2001, staff members
area review committee ("ARC") was
conducted a study of new
established.
residential developments in the
The ARC consisted of community
Earl Haig vicinity, with a view to
members-at-large, one parent
identifying alternative schools for
representative and one student
students from these developments.
representative from each of the
affected schools, principals, school
(v)
(vi)
2 Education Law Summer 2003
On June 14, 2001, staff members
superintendents and members of
completed their report to the Board,
the Board of Trustees.
concluding that students residing in new
In the Fall of 2000, the ARC held
residential developments should be
seven public meetings.
designated to attend other schools within
Stakeholders were invited to attend
the Board. In some instances, these new
and participate.
condominiums are within a short distance
The November 22, 2000 final ARC
from Earl Haig.
At the commencement of the 2002/2003
Mr. Justice Dilks found that the decision of
school year, the Earl Haig attendance area
the Board establishing restrictions to the
and, in particular, the exclusion of students
Earl Haig attendance area was "eminently
living in the new units, was challenged by a
reasonable" in the circumstances. He found
student who had recently taken up
no unfairness in the process by which the
residence in one of the new units. The
Board established the attendance area nor
challenge, which proceeded by way of
any unfairness in how the policy had been
judicial review, was heard over two days on
administered.
an urgent basis before Mr. Justice Dilks of
With respect to the decision to establish
the Ontario Superior Court of Justice. Mr.
the Earl Haig attendance area and the
Justice Dilks summed up the facts of the
process adopted by the Board, Mr. Justice
case as follows:
Dilks wrote:
"Eden Titcher ("Eden"), was
"The decision in question was a
looking forward to entering Grade 9
sound administrative decision in
at Earl Haig Secondary School in
conformity with the Board’s policy
September 2002. All her friends
on such matters. Drastic action
would be going there too. Her
was necessary, but the Board
brother Kyle, ("Kyle") had been
refused to proceed hastily. Instead,
there for two years and was going to
it followed an appropriate and
be entering Grade 11.
established procedure which
involved the public and gave
Unfortunately, her hopes were to
be dashed when she was informed
that she no longer qualified for Earl
everyone, including the applicants’
father, a right to be heard.
Not only was the Board’s decision
Haig as a result of her father, with
not unreasonable, it was eminently
whom she was now living, having
reasonable, because it directly
moved into a newly constructed
addressed one of the principle
condominium which, although
causes of overcrowding, namely the
located within the Earl Haig
proliferation of new multiple
attendance area, had been effectively
housing in the area.
removed from that area by the
Nor is there discrimination here.
respondent Board in an effort to
This was not a case where students
avoid overcrowding in the school."
of a different hair colour, for
example, were forced to attend
Notwithstanding his sympathetic
description of the facts, Mr. Justice Dilks
ultimately dismissed Eden’s legal challenge.
another school. Here the solution
arrived at was logically and
rationally connected to the object
sought."
Summer 2003 Education Law 3
Mr. Justice Dilks also recognized that any
exceptions that had been made to the policy
individual schools and that this entitlement
had been made on "sound grounds for the
is subject to judicial challenge only on very
purpose of (the) educational continuity" of
narrow grounds. The decision also affirms
individual students. He recognized that
that students do not have a right to attend
Board administrators had acted fairly and
the school of their choice but are subject to
appropriately in administering the policy
attendance areas established by school
and declined to substitute his discretion for
boards. Provided they do not act arbitrarily
that of the administrators.
or for an improper purpose, the decisions of
The student also alleged that the principal
The decision affirms that
students do not have the
entitled to establish attendance areas for
school boards to address overcrowding
of Earl Haig should have considered letting
problems in specific schools will be
her into the school but, instead, fettered her
supported. Finally, Mr. Justice Dilks
discretion by relying solely on the policy
confirmed that in areas where school boards
established by the Board. Mr. Justice Dilks
and principals have jurisdiction, such as the
also addressed this argument. He wrote:
establishment and application of policies
regarding attendance areas, courts will not
right to attend the school
"The Court cannot substitute its
lightly interfere with those decisions.
own discretion for that of the
of their choice but are
[principal]. Only if it could be said
subject to a board’s
the exercise was clearly
discriminatory, arbitrary or in bad
attendance areas.
faith could the Court interfere.
That is not the case here."
The decision is important for a number of
reasons. It confirms that school boards are
4 Education Law Summer 2003
Robert W. Weir
Tel:
(416) 367-6248
E-mail: [email protected]
NEW AND IMPROVED: A REVISED POLICE / S CH O O L
B OA RD PROTOCOL
A revised Police/School Board Protocol
• Except in emergency situations,
was recently adopted by the Toronto Police
police, upon entering a school, are
Service and four Toronto-based district
expected to identify themselves to the
school boards. The purpose of the protocol
main school office.
is to encourage on-going and responsive
• Whenever police are arresting a
partnerships between the police and the
person on school property, it is the
school community. It is also intended to
responsibility of police to inform
facilitate appropriate sharing and disclosure
individuals involved of their rights
of information. In addition, the protocol is
under the law.
intended to ensure that the obligations and
• Relevant individuals, including
requirements of both the education and law
principals, teachers, other staff,
enforcement systems are met.
students and parents, have a right to
The revised protocol is consistent with
independent legal counsel regarding
the guidelines set down in the Provincial
their respective duties and
Model for a Local Police/School Protocol,
responsibilities under the law.
2003 recently released by the Ministry of
Education and Ministry of the Solicitor
The protocol addresses the role and
General. The protocol has been amended to
mandate of school boards. It confirms that
include reference to the Youth Criminal
under the Education Act, the principal of a
Justice Act which was proclaimed into force
school has an obligation to maintain order
on April 1, 2003.
and discipline in the school. Under the
In its Statement of Principles, among
other things, the protocol provides:
Criminal Code and other legislation, the
police have a duty to investigate criminal
and quasi-criminal offences. Where
• The parties recognize the
offences are committed on school property
multicultural make-up and diversity
or involve students of a school, it is
of our school communities.
necessary for the principal and the police to
• All criminal offences with a connection
to a school will be reported to the
work co-operatively in fulfilling their
overlapping responsibilities.
police and will be investigated by
police promptly and thoroughly.
Summer 2003 Education Law 5
The protocol provides that the principal
officers are expected to report to the main
has a role to maintain a safe, orderly
school office prior to commencing an
learning and working environment for
investigation in the school. This will
students, staff and others. In this role, the
permit the principal (or vice-principal) to
principal has a duty to:
greet the officer and facilitate the process.
Police will also:
• act in loco-parentis to the students of
the school;
• implement safe schools and violence
prevention policies and procedures;
• communicate awareness of policies
When conductiing an
• provide proper identification to the
principal or principal’s designate;
• explain the purpose of the visit; and
• contact, or make arrangements with
and procedures to staff, students,
the principal to contact, the parents
parents and school communities; and
of students under the age of 18.
• remain with a student, who may be a
investigation, police will
suspect or witness, where the police
interviews the student at school.
make every effort to
The protocol also deals with the police
role in investigating school incidents. It
provides that during a police investigation
minimize disruption to
school routines.
The protocol sets out occurrences that
at school, it is primarily the responsibility
require police response or involvement.
of the police to explain to a young person
While the principal has the discretion to
his or her rights in a manner that enables
determine the appropriate level of police
him or her to understand them. The
involvement, incidents that involve violence
principal/designate will inform police of
or the imminent threat to the safety and
any special circumstances which may
security of the school community will
impede the student in expressing or
require police response. Occurrences that
understanding written/oral communication.
require police response at school include:
Under the Youth Criminal Justice Act, a
physical assault causing serious injury,
statement made by an accused student
sexual assault, robbery, extortion, drug
under the age of 18 is not admissible in
offences, and weapons offences.
court against the student unless:
The protocol provides that when
conducting an investigation, police will
(i) the statement is voluntary;
make every effort to minimize disruption to
(ii) the police have advised the student
school routines. In all instances of non-
that the student is under no
emergency police investigations, police
obligation to make a statement and
6 Education Law Summer 2003
that the statement may be used as
• Where a student is to be arrested on
evidence in a proceeding against
school premises during school hours,
him or her;
and so long as circumstances permit,
(iii) the police have advised the student
police will contact the principal to
that he or she has a right to consult
arrange a suitable procedure by
counsel and a parent, an adult
which police will access the student.
relative or, in the absence of a
• Where a student is to be arrested,
parent or adult relative, any other
police shall not be denied access to
appropriate adult chosen by the
the student.
student;
(iv) the police have, before the
• There may be circumstances in which
physical restraints will be necessary.
statement was made, provided the
These will be employed with full
student with a reasonable
regard for the safety of those involved
opportunity to consult with the
in accordance with the protocol,
persons listed in paragraph (iii);
police procedure and the arresting
and
officer’s discretionary powers.
(v) where the student has consulted a
• When a student, who is a minor
person set out in paragraph (iii),
(under 18 years of age), has been
the student has been given a
removed from the school, the
reasonable opportunity to make the
principal or designate will notify the
statement in the presence of that
parent(s) or guardian(s) promptly
person.
unless otherwise instructed by the
police.
The protocol also deals with detention
and arrest. It indicates that whether or not
With respect to violence prevention
the incident giving rise to the necessity to
programs, the protocol provides that the
arrest is school-related, the police will
police will work in partnership with schools
consult with the principal and consider
and other community agencies to
alternatives, to the extent possible, and
administer programs such as peer
effect the arrest at a location other than
mediation, drug awareness and
school. In this regard, the protocol
education, conflict resolution, and Student
provides:
Crime Stoppers. The protocol, therefore, is
one component of a broader partnership
among school and other essential
Summer 2003 Education Law 7
community partners (including mental
health providers, health care professionals,
and children’s aid societies) in the area of
prevention.
The goal of the protocol is to support the
promotion of a safe school environment. In
signing the protocol, the Toronto District
School Board, the Toronto Catholic District
School Board, the Conseil scolaire de
district catholique Centre-Sud and the
conseil scolaire de district due Centre-SudOuest agreed to work co-operatively with
Co-operation between
police officers and school
the Toronto Police Service to attempt to
ensure the safety of students, staff and other
members of the school community. All
staff is essential to the
parties agree that co-operation between
police officers and school board staff is
welfare of students, staff
and the community at
essential to the welfare of students, staff and
the community at large when incidents of a
criminal nature occur.
large.
Eric M. Roher
Tel:
416-367-6004
E-mail: [email protected]
8 Education Law Summer 2003
LEGAL UPDATE: DEALING WITH AN EXCEPTIONAL
S T UD ENT WHO MAY BE A SAFETY RISK
In the recent decision of Bonnah (Litigation
appeals. However, while that appeal was
guardian of) v. Ottawa-Carleton District School
pending, the Board recommended that
Board, the Ontario Court of Appeal ruled that
Zachary be transferred to the special needs
a principal, and ultimately the Ottawa-
school because of safety issues arising from an
Carleton District School Board (the “Board”)
assault against staff and students.
may exclude an exceptional pupil from
school for legitimate safety reasons. An
The three issues to be decided were:
"exceptional pupil" is defined in the Education
Act as a pupil whose behavioural,
(a) Whether the Board had the
communicational, intellectual, physical or
authority to transfer Zachary to a
multiple exceptionalities are such that he/she
different school for safety reasons
is considered to need placement in a special
while an appeal from the decision
education program.
to change his placement under
The pupil in this case, Zachary Bonnah,
was an 11-year-old boy with learning
provisions relating to exceptional
pupils was outstanding;
disabilities. He had previously attended a
(b) Whether the Board had act fairly in
special needs school but had spent recent
ordering Zachary’s transfer; and
months in a grade two class at a regular
(c) Whether the decision to transfer
school with an educational assistant. In
Zachary for safety reasons was
October 2001, the principal of the regular
supported by the record.
school requested a review of Zachary’s
placement based, in part, on safety concerns.
Section 8(3) of the Education Act requires
The Board’s Identification Placement and
the Minister to ensure that all exceptional
Review Committee ("IPRC") reviewed
children in Ontario have available to them,
Zachary’s placement and recommended that
in accordance with the Act and the
he be transferred back to the special needs
regulations, appropriate special education
school. Zachary’s parents would not consent
programs and special education services.
to the change in his placement and exercised
The provision also requires the Minister to
their rights of appeal.
provide a process for parents and guardians
Pursuant to the IPRC Regulation, Zachary
was to remain in his placement in a regular
to appeal the appropriateness of the special
education placement.
grade two class pending the outcome of the
Summer 2003 Education Law 9
Respecting the first issue, the Court of
Appeal held that the Board did not have the
governing access to school premises.
Section 265(1)(m) reads:
authority to transfer Zachary while the
appeal of the placement decision was
outstanding. Regulation 181 specifically
provided for the existing placement to be
stayed when a parent appeals. In keeping
be both an immediate
duties as a teacher,
(m) subject to an appeal to the
board, to refuse to admit to
"where a placement decision is challenged
the school or classroom a
Act and the regulations to leave the status
of life that a student may
school in addition to the principal’s
with this provision, the Court stated that,
by the parents, it is clearly the policy of the
“It is an undeniable fact
"It is the duty of a principal of a
person whose preference in
the school or classroom
would in the principal’s
quo in place while that challenge is
judgment be detrimental to
considered." Mr. Justice Doherty held that,
the physical or mental well-
the right to remain in the placement cannot
being of the pupils; …"
be overridden by any implied power to
transfer for safety reasons. However he
made the following suggestion:
safety risk to others and
Section 305 is included in Part XII of the
Act, entitled "Behaviour, Discipline and
Safety". That part of the Act was introduced
"It may be that the regulations
an exceptional student.”
should be amended to give the
appropriate body (for example, the
IPRC) the authority, where the
circumstances demand, to address
safety concerns by way of interim
by the Safe Schools Act, 2000. The section
empowers the Minister to make regulations
governing access to school premises.
Ontario Regulation 474/00 governing access
to school premises provides in part:
placement orders that would have
effect pending the resolution of any
"3(1) A person is not permitted
appeal from a placement decision."
to remain on school premises if his
or her presence is detrimental to
The question arose as to whether the
Board had t he authority to exclude Zachary
the safety or well-being of a person
on the premises, in the judgment of
the principal, a vice-principal or
for safety reasons. Counsel for the Board
another person authorized by the
argued that the principal’s authority to
Board to make such
exclude Zachary from the school was found
determination."
in section 265 of the Act which outlines the
duties of a principal, and in a regulation
The Court of Appeal confirmed that the
passed under section 305 of the Act which
purpose of section 265(1)(m) of the Act and
allows the Minister to make regulations
section 3(1) of 0.Reg. 474/00 is to preserve
10 Education Law Summer 2003
school safety. These provisions are not
pupils and other children who
concerned with the placement of students
interact with that exceptional pupil.
Where there are genuine safety
according to their educational needs. Mr.
concerns, considerations of the
Justice Doherty noted that, read together,
best interests of the child must
section 265(1)(m) of the Act and section
extend to all of the children whose
3(1) of the 0.Reg. 474/00 authorize
safety is at risk."
principals to refuse to allow persons into a
school where the principal has determined
The Court also recognized that the pupil’s
that the presence of that person in the
status as an exceptional pupil with respect
school would be detrimental to the safety of
to whom a placement decision is being
others in the school. The provisions allow
made is relevant to the manner in which a
principals to act quickly where the conduct
principal exercises his or her authority
of a person puts the safety of those under
under section 265(1)(m) of the Act and
the charge of the principal at risk. Mr.
section 3(1) of the Regulation. No doubt,
Justice Doherty indicated that a principal
the placement of exceptional pupils requires
can properly exercise powers where the
considerable expertise and careful
safety concerns are genuine and the
assessment. The principal’s response to a
principal’s response to those concerns is
safety concern must be a reasonable one in
reasonable in all of the circumstances. Mr.
the circumstances. Moreover, the
Justice Doherty stated that it is an
legislation recognizes that disciplinary
undeniable fact of life that a student may be
measures must take into account individual
both an immediate safety risk to others and
circumstances. The Court of Appeal
an exceptional pupil. He wrote:
maintained that the power to discipline by
way of suspension or expulsion must have
"An interpretation of s. 265(1)(m)
and s. 3(1) that would place
exceptional pupils beyond the reach
of a principal's power to exclude
the potential to reach all pupils, including
exceptional students, if it is to serve its
purpose.
persons for safety reasons from the
school is not only inconsistent with
the language used in the Act and the
Michelle Henry, Student-at-Law
regulation, but would seriously
Tel:
416-814-5932
imperil the safety of exceptional
E-mail: [email protected]
Summer 2003 Education Law 11
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