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Education Law

KC Launches Newsletters

Keel Cottrelle LLP is pleased to announce the launch of this Newsletter.  This is a transitioning from the existing Education Law Newsletter and Human Resources Digest from Edu-Law to Keel Cottrelle LLP.  The Newsletter will be published bi-annually.  Suggestions or contributions for the Newsletter are welcome.

The Editors

Court upholds exclusion of parent

In Martin v. Conseil des ecoles catholiques de langue francaise du Centre-Est, [2006] O.J. No. 5349 (Div. Ct.), the Court, on judicial review, upheld a principal’s decision to ban a student’s parent from the school premises.

The Applicant, John Martin (“Mr. Martin”), was banned indefinitely from  his daughter’s school on the basis that his presence and interaction at the school had surpassed acceptable conduct.  To complicate matters, Mr. Martin was President of the School Council for the 2004/05 school year.  The ban was imposed under section 3(1) of Ont. Reg. 474/00 Access to Premises, and section 305 of theEducation Act.

Mr. Martin alleged that Le Conseil des ecoles catholiques de langue francaise du Centre-Est (the “Board”) had taken exceptionally punitive measures against him and asked the Court to intervene and quash the decision of the Director of the Board.

The Court noted that the parties did not agree about a majority of the incidents that led to the decision by Board administration to ban Mr. Martin from the school premises.  The first incident, during the Fall of 2003, involved the police being called when Mr. Martin picked up his daughter on a day she was supposed to go home with her mother.  Despite being told by his daughter’s teacher that he could not leave with his daughter, Mr. Martin proceeded to do so.  As a result, the police were called.

In another incident in January 2004, Mr. Martin approached a teacher in the parking lot to discuss his daughter’s involvement in the ski club.  Despite the fact that the teacher said she was leaving for lunch, he followed her to her car and held the door open preventing her from leaving.  The teacher felt harassed and subsequently asked the principal to ensure that she was never left alone with Mr. Martin.

In October 2004 Mr. Martin set up a website for the School Council contrary to the principal’s direction that Mr. Martin could not set up such a website in the name of the school when the school would not have control of the site.

On November 12, 2004, Mr. Martin was abusive toward the secretary of the school (while the principal was absent from the school) because she would not implement his directions with regard to junk mail in the School Council’s mailbox.

Then on November 22, 2004 there were two incidents involving Mr. Martin.  In the first instance, he objected to the traditional Christmas raffle held at the school each year.  The principal told him he could be removed as President of the School Council if he did not agree with the raffle.  The second incident involved Mr. Martin monopolizing the attention of a teacher outside her classroom.  Following this incident, Mr. Martin was told by the principal that all conversations were to take place in his presence.  In response, Mr. Martin wrote a complaint letter about the teacher’s conduct.   He submitted a second complaint letter at which point the principal conducted an investigation of the incident and concluded that the complaints were without merit.  Mr. Martin also launched a complaint with the police services in Ottawa who also concluded there was no foundation for his complaints against the teacher.

On November 24th, Mr. Martin arrived at the school and wanted to meet with the principal, who was at a previous engagement off school premises.  Despite being told several times to make an appointment, Mr. Martin kept trying to speak with the principal.

On November 29, 2004 Mr. Martin intercepted parents in the schoolyard before the start of the school day and tried to discuss a School Council matter.  The principal had told him that he thought the matter should be dealt with by the full School Council, in session, but Mr. Martin proceeded nonetheless.

As a result of the culmination of incidents, on November 29th, the principal announced his decision to ban Mr. Martin.  The principal claimed that Mr. Martin’s talking to the parents in the parking lot had disrupted the school day because it prevented parents from dropping off their children in the usual manner.  The ban imposed by Board administration prevented Mr. Martin from being on school property, which precluded his ongoing involvement with the School Council, because school administration insisted that all meetings take place at the school. 

On January 15, 2005 Mr. Martin was charged with Trespassing when he attempted to escort his daughter, who was on crutches, into school.  The ban was temporarily lifted subject to conditions on March 21, 2005.  The ban was re-imposed indefinitely on April 13, 2005.

Due to events following Mr. Martin being banned from the school, the application was rendered moot, however both parties asked the Court to apply its discretion to hear the application.  The Court agreed.

The Court undertook a pragmatic and functional approach to determine the appropriate standard of review to be applied to the principal’s decision.  The Court characterized the principal as having “expertise in determining what is necessary to provide a secure and appropriate learning environment”, with the Court having no such similar expertise.  Mr. Martin argued that the decision to ban him from school grounds impacted his right to access his child under theCharter and therefore, should engage the Court’s expertise in balancing individual and human rights.  The Court did not agree that the case raised issues of constitutional or quasi-constitutional importance.  The Court also examined the purposes of section 3(1) of the Access to School Premises Regulation and section 305 of the Education Act, both of which serve to protect students and staff from harmful conduct.  The provisions vest authority in the principal to determine what is detrimental to the well-being of people at the school.  Taking into consideration all of these factors, the Court decided that the review should be less stringent and should be based on the standard of reasonableness simpliciter.

The Court concluded that Mr. Martin’s behaviour created a situation of distress and anxiety, and the Principal’s decision to ban Mr. Martin was reasonable in the circumstances, commenting that: “the principal has the required ‘know how’ and awareness to evaluate the impact of a situation that can detract from the serene and peaceful atmosphere that is required in a school to give its pupils quality education.”   The Court was satisfied that the principal “possesses a global understanding as an educator, an administrator and manager of the school placed in his charge by the School Board” and deferred to his “appreciation of what is necessary to maintain the fragile equilibrium for his school that will be conducive to an excellent atmosphere for teaching for his students.

The Court found that the principal had considered Mr. Martin’s disruptions in the school based on information received from teachers and support staff, as well as his own experiences and observations of Mr Martin’s conduct.  In the Court’s view, “Mr. Martin now needs to make amends, change his attitude and convince the School Board he will not repeat the behaviour the School Board objected to, only then will he stand a chance to have the ban lifted.

This decision, together with the Court of Appeal decision in Bonnah v. Ottawa-Carleton D.S.B. (2003), 64 O.R. (3d) 454 (Ont. C.A.), confirm the right of administrators to exclude parents and students in circumstances where their continued presence is detrimental to the learning environment.

What does consultation require?

The plaintiff in Hewko (guardian ad litem of) v. British Columbia, [2006] B.C.J. No. 2877 (Sup. Ct.), Darren Hewko, was a nine year old boy diagnosed at age three with autism and a moderate intellectual deficit.  His means of learning and communication was through a Lovaas-based program.

Darren had an effective ABA-IBI therapy program in pre-school.  Darren’s home based therapist attended Kindergarten with him for the first month and then a teaching assistant (“TA”) was assigned to him by the District.  Darren was under “complete instructional control” at the time of this transition. The TA had little experience or knowledge of autism and no experience or knowledge of ABA-IBI therapy programs.  At the end of Kindergarten, Darren was “hopelessly out of instructional control” and his parents removed him from the school.

At the end of May 2003 the District recommended that Darren attend a different school and be placed in a resource room with a teacher who was highly qualified in special education. Both the teacher and the TA who would be assigned to Darren had experience working with children with autism, but no specific experience with ABA-IBI therapy programs.  Both were enrolled in a five day intensive course over the summer of 2003, which included exposure to ABA-IBI therapy.

Darren’s parents refused the placement in the resource room.  The District denied the parents’ request that Darren’s home based therapist or someone trained in his home-based therapy be his TA in the school.  The Hewko’s unsuccessfully appealed the District’s decision to the Trustees of the School Board, following which they brought a claim against the District and the Province of British Columbia for relief for discrimination on the ground of disability pursuant to sections 15 (equality rights) and 7 (life, liberty and security of person) of theCharter and for negligence and/or breach of the duties under the School Act(R.S.B.C. 1996, c. 238).

The plaintiffs argued that the District failed to provide competent and/or adequate assistance for Darren to be able to access an education and had failed to meaningfully consult with them to find a way to implement Darren’s home based ABA-IBI therapy so that he could access publicly funded education.  Both the Province and District argued that the failure to agree on a placement and a program was attributable to the parents’ unrealistic and unreasonable requirements for Darren’s educational program, and they argued that the parents had sought to impose their personal choices on the school, which were not necessary for Darren to reasonably access education.  They argued the parents had refused a reasonable placement proposed by the District.

The Court found that the District was liable to the plaintiffs for breach of the statutory duty to consult with the plaintiffs, but the Province was not.  The claims based on the Charter for discrimination were unsuccessful.  The Court relied on the decision of the Ontario Court of Appeal in Wynberg v. Ontario, [2006] O.J. No. (O.C.A.) (“Wynberg”).

The Court provided an outline of the legal and political history related to autism.  Significantly, the Court found that there was evidence that the District had resisted the use of a Lovaas based treatment because of the perception that the District was being set up for litigation.

The Court commented on the following issues regarding ABA-IBI: there had been no denial of ABA services to Darren; there was debate among professionals as to whether it was the only effective tool for the delivery of education services to children with autism in public schools; it was proven effective in maintaining instructional control of children with autism; it was not so new that its novelty could constitute a basis for not providing it; and, after it is used for 2 years when maximally effective, other methods of education might be used.

· Reasonable Apprehension of Bias

The parents had appealed the placement decision to the District’s Assistant Superintendent in charge of special needs students and to the Board of Trustees.

The Court held that there was a reasonable apprehension of bias at the hearing before the Trustees such that the decision was rendered of no legal effect in the proceedings before the Court.

Prior to the hearing before the Trustees the Hewko matter was discussed at twoin camera meetings, which the District’s Assistant Superintendent attended.  At one of the meetings he provided the Trustees with written information that was not provided to the Hewkos.  In addition, Counsel for the Board spoke with the Assistant Superintendent for 20 minutes on the day before the hearing, presumably, about issues related to the hearing.

The Hewkos retained counsel for the hearing before the Trustees.  No witnesses were sworn in and there was no opportunity for cross examination.  The Hewko’s request for the proceedings to be recorded was denied and they were told that the Trustees would not keep minutes.  Board counsel stayed with the Trustees during their deliberations and offered unspecified advice.  A written decision was provided upholding the staff recommendation.

Before the Court the District withdrew its argument that failure by the Hewkos to bring a judicial review was a bar to these proceedings, however the Province continued to rely on that argument, which was dismissed because of the conduct at the hearing before the Trustees.

· Discrimination

The Court held that the Plaintiffs could not make out their claim for discrimination contrary to the Charter.  The Court concluded that the issue was not discrimination, but rather was a gap in service, in that there were “too few teachers or teaching assistants or even certified consultants  with sufficient training to either properly evaluate home programs, or to deliver such programming in the school system such that the scheme of the School Act failed this child with autism” (para. 337).  This did not, however, constitute discrimination contrary to the Charter.

The Court relied on the decision in Wynberg to dismiss the section 7 claim.

· Statutory Duty of the Province

The Court outlined the statutory duties of the School Board and Ministry of Education in great detail.  The Court found that the Province was not empowered to overrule a School Board’s decision with respect to an IEP.  In addition, the Court held that since government policies were distinct from statutory duties and did not create any rights enforceable at law, there was “no recourse  for the plaintiffs with respect to any injury they may have suffered as a result of the Province not adhering to its own policy or failing to implement its own policy rapidly or effectively enough to prevent what has happened to Darren Hewko” (para. 319).  A similar finding was made with respect to a BC Order In Council.

· Statutory Duty of the District

The Plaintiffs were successful in their claim that the District had breached its statutory duty by failing to live up to its duty to consult.  The Court summarized general principles that inform the duty to consult as follows:

  • Before any decision is made regarding placement and implementation of the IEP, the parent must be consulted.
  • The depth of consultation and the concomitant obligations for the parties to accommodate the requirements of the other will vary with the need to modify the curriculum.
  • All necessary information regarding either parties’ position with respect to placement and program must be provided to the other in a timely way to ensure that representations are seriously considered and wherever possibledemonstrably integrated into the proposed educational plan.
  • Each party to a consultation has an obligation to provide timely information and an obligation to make whatever accommodations are necessary to effect an educational plan that is in the best interests of the child.
  • In determining a placement and developing an IEP for a child with autism or Autism Spectrum Disorder, the opinion of the expert, as set out below, should be regarded as the most significant underlying principle for meaningful consultation: “the program will not work unless everybody signed on to it.  And the reason they sign on to it is because it’s a program that makes absolute sense to all parties.  It has to be designed as a win-win for everyone so that all the parties understand.”
  • The parents of a special needs child do not have a veto over the placement or the program as expressed in the IEP.  Meaningful consultation does not require agreement.  The school district maintains the right to decide after there has been meaningful consultation.
  • Meaningful consultation should result in a proposal that can produce instructional control of the child.

With respect to the case at hand, the Court found that there were two main factors that resulted in Darren being unable to attend school:  the service gap noted above, and the opinion of District personnel, which the Court described in the following way:

“… to resist any accommodation of Darren Hewko's needs if that accommodation involved ‘training’ of District employees in Darren's home program. Further compounding the problem was the policy stated by [District personnel], that no home-based therapist could become Darren's TA because they would not be employees of the District. However, it was made clear to the Hewkos that no home-based therapist could be hired as a TA in the District unless at the time of their application there was no other TA available with seniority.” (para. 364)

The Court held that since the District knew about the failure to secure or maintain instructional control over Darren in the classroom and that instructional control had been demonstrated at home through his home based program, it should have “considered whether an accommodation could be made to hire one of Darren’s home-based therapists so that the District would have the necessary control of the classroom pursuant to the Act” (para 365) This failure constituted an abdication of the District’s responsibility to provide Darren with reasonable access to education.

The Court held that reasonable accommodation “is an integral part of the duty to consult” and that, consultation with the parents “must include an accommodation of his home-based program -at least until instructional control is gained and maintained of him in the school setting” (para. 369).  The Board had failed to discharge its duty to consult by failing to ensure that the parents’ “representations were seriously considered and, wherever reasonably possible, demonstrably integrated into the proposed plan of action” (para. 371).  The District had “failed to demonstrate it could produce instructional control of Darren” (para. 371).

The Court ordered that the District meet with the Hewkos and carry out the procedural and substantive aspects of its consultation obligations.  The Court retained supervisory jurisdiction over the consultation.

Although it was not raised by the parties, the Court considered the merits of negligence/educational malpractice claims by Darren Hewko and his mother, finding that such claims could not have been maintained against the School District, but noting that, if such a tort could have been established, there could have been an award for damages.

Consultation in Ontario is a necessary component of the IEP process, which requires Boards to not only seek parents’ opinions, but also consider how their wishes might be implemented.  The Hewko decision provides helpful guidelines in this respect.

Parents without legal counsel may be vexatious


In Paquin v. Ottawa-Carleton District School Board, [2006] O.J. No. 4775 (Div. Ct), Ms. Paquin unsuccessfully appealed the summary dismissal of her counterclaim.  The Board and two of its employees had brought an action under the Libel and Slander Act against Ms. Paquin and two co-defendants.

Ms. Paquin was the parent of a special needs child who was a student of the Board.

In her counterclaim, Ms. Paquin sought an order that the Board provide particular supports and services, or that she be awarded damages so that she could arrange and pay for the provision of those supports and services.  In a mediated settlement, the parties agreed upon the supports and services the Board would provide; however, Ms. Paquin continued her claim for damages before the lower Court, but on different grounds than in her pleadings.

In upholding the lower court’s decision, Justice Rutherford noted that “Ms. Paquin does not seem to appreciate the role of pleadings in civil litigation.”

The Court admonished the behaviour of Ms. Paquin’s co-defendant in the Court and in the filing of the appeal.  Costs were awarded to the Board.

Unfortunately claims against school boards are often brought by parents who are not represented by counsel.  This can create not only procedural issues, but also issues related to the substance of a claim and even the right to bring one.

The complicated world of personal information


In a decision of the Information and Privacy Commissioner of Ontario (the “IPC”), Re:  York Catholic District School Board, [2006] O.I.P.C. No. 190, an appellant’s personal information was ordered to be disclosed while the remaining issues were sent back to the York Catholic District School Board (the “Board”) for reconsideration with reasons.

The Board denied two requests under the Municipal Freedom of Information and Protection of Privacy Act (the “Act”) for access to copies of two letters.  Both letters identified the requestor, now appellant, as an audience member at a school concert.  One letter was written by a teacher-in-charge and the other by a supply teacher.  Both letters were subsequently forwarded to the principal, additionally the letter from the teacher-in-charge was forwarded to the superintendent.  The Board denied access to the letters on the basis that disclosure to the appellant of her personal information would be an unjustified invasion of another individual’s privacy.

On appeal, the adjudicator found that the records contained the personal information of the appellant and of other individuals.  Pursuant to the Act, individuals have a general right of access to their own personal information held by an institution, subject to exceptions outlined in the legislation, including the unjustified invasion of personal privacy of another individual.

At the outset, the adjudicator ordered the disclosure of the portions of the letters containing the appellant’s own personal information, but went on to consider those portions of the letters containing the personal information of others.

The adjudicator found that the information related to a private interest consisting of the appellant’s involvement in events taking place at a school concert.  The adjudicator further found that section 14(2)(d) (relevant to fair determination of rights affecting requestor) was not applicable, as the appellant failed to establish that her legal rights were in question.

After considering the appellant’s submissions, the adjudicator considered whether release of the record would cause unfair harm to the person to whom information relates, pursuant to section 14(2)(e), and found that harm was possible because the appellant did not consider the issues between her and the other person to have concluded, and, therefore, disclosure might cause “some form of pecuniary or other harm to the affected parties.”  Further, the adjudicator found section 14(2)(f) (highly sensitive personal information) was applicable, because disclosure “could cause significant personal distress to the affected parties and to other individuals.”  Lastly, the adjudicator found that section 14(2)(h)(personal information supplied in confidence) applied, as it was “reasonable to conclude from the circumstances that the affected parties expected some level of confidentiality or discretion regarding, at least, the use of their own information.”

The adjudicator concluded that disclosure constituted an unjustified invasion of the personal privacy of the affected parties and other individuals and qualified for exemption under s. 38(b) of the Act.

The adjudicator reiterated that s. 38(b) of the Act is discretionary.  The Board has the power to disclose the information contained in the records found to qualify for exemption, including the personal information of other identifiable individuals.  The adjudicator explained that the IPC’s role on appeal is to review an institution’s decision in order to determine whether it exercised its discretion, and, if so, to determine whether it erred in doing so.  The adjudicator has the ability to send the matter back to the institution for an exercise of discretion based on proper considerations, but may not substitute his/her own discretion for that of the institution.  The adjudicator found that in the current instance, the Board did not properly exercise its discretion, and ordered the Board to disclose to the appellant those portions of the record containing her personal information, as well as re-exercise its discretion in accordance with the adjudicator’s discussion of the issues.  The Board was ordered to advise the appellant and the IPC of a decision in writing, and if the Board decided to withhold all or part of the remaining information, the adjudicator ordered that an explanation of the reasons for withholding information be provided to the appellant and the adjudicator.

Decisions regarding the release of records that include personal information require the balancing of many factors, and in some cases there may not be a clear determination of rights.