School Board Update
Welcome Back to School!
Date: September 26, 2018
With this edition of our School Board Update, we’d like to welcome you back to a new school year. In this Update, we discuss a recent policy of the Ontario Human Rights Commission with respect to accessing education for students with disabilities, which notes that while advances have been made in this area, there is still much work to be done. We also discuss three recent cases of interest which involve the following topics: a teacher’s expectation of privacy in the contents of a school-issued computer, the transfer of a student under a “Fresh Start Policy” and accessing adjudicative records of various tribunals, such as the Human Rights Tribunal of Ontario and the Ontario Labour Relations Board.
We hope you enjoy this edition and would like to thank Kate Shao, Sarah Iaconis and Jordan Simon for their help in preparing the articles. Please let us know if you have any topics of interest you would like to see discussed in our upcoming Updates.
Have a great school year!
The Ontario Human Rights Commission’s New Policy on “Accessible Education for Students with Disabilities”
On August 29, 2018, the Ontario Human Rights Commission (Commission) released a new policy entitled “Accessible Education for Students with Disabilities” (Policy). As stated by the Commission, the purpose of the Policy is to provide practical guidance to the public about school boards’ rights and responsibilities as they relate to disability as a ground of discrimination in the context of education.
The Commission has indicated that, in its view, students with disabilities continue to face obstacles in their attempts to access educational services in Ontario despite significant gains for those students in recent years. The Commission notes that “disability” continues to be the most frequently raised ground of discrimination under the Human Rights Code (Code) in applications made to the Human Rights Tribunal of Ontario (HRTO), with significant systemic issues being raised in disability and education claims.
In particular, the Commission indicates that the following ongoing barriers to access educational services, among others, continue to exist:
- ineffective communication to parents and students about their right to accommodation
- inadequate training for education providers on disability-related issues
- insufficient resources and supports in the classroom
- negative attitudes and stereotypes, and
- inappropriate requests for medical.
We expect that many school boards will have encountered these issues or allegations of this nature in the course of providing reasonable accommodation to a student or by way of an application to the HRTO.
In light of these challenges, it may be of assistance for school boards to review the Commission’s Policy for practical guidance on accommodating students with special needs. In doing so, however, school boards should be mindful that the Policy is not law nor does it have the weight of an HRTO decision. It has not substantively altered a school board’s legal rights and responsibilities with respect to the accommodation of students with disabilities. Rather, what the Policy provides is the Commission’s view on how the Code ought to be interpreted.
This interpretation, while not law, may nonetheless provide valuable insight to school boards and assist in ensuring that they are in the best possible position to successfully engage in the accommodation process with students with disabilities and, if necessary, to defend their accommodation process before a decisionmaker.
We encourage school boards to review the Commission’s Policy with a view to ensuring that their internal policies and practices are reflective of the guidance provided by the Commission, as appropriate. Should you have any questions about your accommodation process or internal policies in light of reviewing the Commission’s Policy, please contact your regular Hicks Morley lawyer.
Arbitrator Considers Reasonable Expectation of Privacy of Teachers Who Use School-Issued Computers
Arbitrator Gail Misra has rendered a significant award in which she found that the York Region District School Board (Board) did not violate the grievors’ reasonable expectation of privacy when the Principal of their school took a screenshot of a log that the grievors had maintained about a colleague. The log was located on a classroom laptop computer which had been left sitting open.
In York Region District School Board v Elementary Teachers’ Federation of Ontario, the grievors, two newly hired contract teachers, were part of a team of Grade 2 teachers. They began speaking negatively about a number of issues and other teachers became concerned that this was creating a toxic environment. Two staff members learned that the grievors were keeping a log that tracked comments and negative observations concerning other colleagues on the Grade 2 team. Several staff members told the Principal and Vice Principal about their concerns.
The Principal, along with Board management, began a search for the log on the Board’s IT System, which was ultimately unsuccessful. A few days later, the Principal entered one of the grievor’s classrooms to return an item and noticed that one of the Board-owned laptops was open. The laptop screen was black, but when he touched the mousepad, the screen opened and the log was on the screen. The Principal scrolled through the log and photographed it with his cell phone. The Board subsequently reprimanded the grievors for maintaining the log and thereby contributing to a toxic work environment. By the time of the grievance, the written reprimands were no longer on the grievors’ records. The remaining issue was whether the Board breached the grievors’ reasonable expectation of privacy: the union asserted that since the grievors stored the log in a personal cloud account, it was improper to enter that account.
The Arbitration Decision
Arbitrator Misra rejected the union’s argument. Among other things, she noted that classroom computers were not for the exclusive use of a particular teacher and were to be used for educational purposes by any parties in the school. This fact diminished the grievors’ reasonable expectation of privacy regarding the log. Anyone finding the log open on the classroom laptop could not have known how it had been set up, or that it was on the grievor’s personal Google Docs account.
Notably, Arbitrator Misra found that the Education Act authorized the Principal to conduct a search in the circumstances pursuant to his statutory duties to maintain proper order and discipline in the school and to develop co-operation and co-ordination of effort among the members of the staff of the school. He had “ample reasonable cause for concern about the work and the teaching environment” given the toxic working environment within the Grade 2 team and, considering all of the circumstances, there was reasonable cause for the Board to conduct a search of the grievors’ online Board files.
It was also significant that the Board did not review all of the grievors’ documents. Rather, it made a targeted search for any document that both grievors may have shared. This indicated that the Board was taking a “careful and considered approach” to the investigation, striking an appropriate balance between the grievors’ personal privacy interests with the Board’s right to manage its enterprise.
Arbitrator Misra concluded that the Board had reasonable cause to engage in the searches, the searches were conducted in a reasonable manner and there was no breach of the grievors’ reasonable expectation of privacy.
This decision demonstrates how the totality of the circumstances affects an employee’s expectation of privacy. Arbitrator Misra noted that even if the grievors had a subjective and objective expectation of privacy because they used a personal cloud account and had taken steps to ensure the log remained private, this was not a case where the grievors were allowed exclusive and private use of Board laptops. There were consequences to leaving the log open on a classroom computer that was not for their exclusive use, including a diminished expectation of privacy.
Court Finds Transfer of Student Under Fresh Start Policy Reasonable
In K.W v. Toronto Catholic District School Board, the Ontario Divisional Court recently found that the decision to transfer a student from one school to another under the Fresh Start Policy (Policy) of a school board (Board) was not disciplinary in nature, was within the Board’s power and was reasonable.
KW was in Grade 11 at School 1 when he was involved in an incident with two other Grade 11 students in which a Grade 10 student (MV) was attacked. KW was placed on a 20 day administrative suspension, which was later reduced to five days. The other two Grade 11 students were expelled. KW is Black and was a star athlete at School 1.
KW admitted to the Principal of School 1 that he had pushed and shoved MV, and as well that he had had taken MV’s glasses and thrown them away. After discussions with MV and his mother, the Principal concluded that KW should not return to School 1 as it posed a “risk to the physical and/or mental well-being” of MV. KW was transferred to School 2 under the Policy, which he began to attend in October 2017.
KW and his guardian appealed the transfer decision to the Superintendent. They submitted that they were denied procedural fairness in the process and that KW was racially profiled. KW also argued that because of the transfer, he was prevented from participating on the sports teams at School 2 by virtue of a transfer policy of the Ontario Federation of Secondary School Athletic Association.
The Superintendent denied the appeal, relying on the Policy and the Board’s Victims’ Rights Policy. He found there was no evidence of racial profiling.
KW and his legal guardian brought an application to the Divisional Court for review of the Superintendent’s decision. They argued that the Board lacked jurisdiction to transfer a student for disciplinary purposes under the Policy, that the applicants were denied procedural fairness before the Superintendent and that the decision of the Superintendent was unreasonable.
The Court first found that the Board had the authority to adopt the Policy under the Education Act (Act) and PPM 145. There was nothing in the Policy that “suggests it was designed to impose non-voluntary transfers for disciplinary reasons. … The Fresh Start Policy is one of the Board’s suite of policies that deal with the management of student behaviour and student relations in the classroom and in schools. It is focused on student achievement and the protection of victims, and is consistent with the policies of the Ministry of Education.”
The Court also rejected the argument that the Policy could not be used to transfer a student where Part XIII of the Act (“Behaviour, Discipline and Safety”) was engaged to discipline the same student. In this case, KW had received a five day suspension. The Court noted that Part XIII is disciplinary in nature and any discipline imposed is recorded in a student’s Ontario Student Record (OSR), whereas one major purpose of the Policy is to protect victims and ensure school safety. A transfer under the Policy is not recorded in the OSR. It stated that “there is nothing in the record or the affidavit evidence to establish that the transfer of K.W. was made for disciplinary reasons or that it was punitive in nature.”
With respect to the applicants’ argument that they were denied procedural fairness in their appeal before the Superintendent, the Court found that the decision to transfer KW was an administrative one. KW was provided with an opportunity to be heard and had a lawyer present when he and his guardian met with the Superintendent. There was no obligation to have the appeal be adversarial in nature (so that, for example, the Principal could be cross-examined). The Superintendent reached his decision based on the information provided to him as well as the applicable legislation and Board policies.
The Court also found that the decision of the Superintendent was reasonable. He gave written reasons for upholding the transfer and accepted the Principal’s view that the well-being of MV would be at risk should KW have returned to the school. Moreover, KW had never denied involvement in the assault. The issue of racial profiling was not raised before the Court.
Although very specific to its own facts, this decision emphasizes the importance of ensuring compliance with board policies while addressing student behavioural issues and in taking care to provide procedural fairness to the parties involved.
FIPPA Presumption of Non-Disclosure of Adjudicative Records of Administrative Tribunals Found to be Unconstitutional
In Toronto Star v. AG Ontario, the Ontario Superior Court of Justice recently held that the Ontario Freedom of Information and Protection of Privacy Act (FIPPA) violates section 2(b) of the Canadian Charter of Rights and Freedoms (Charter), as it goes too far to protect the privacy of parties, witnesses and others in matters heard by the Human Rights Tribunal of Ontario, the Ontario Labour Relations Board and other statutory tribunals.
By way of background, the Toronto Star (The Star) had challenged FIPPA’s application to the adjudicative records held by 13 administrative tribunals (e.g. applications, complaints, orders, documentary evidence, transcripts, decisions) on the basis that it violated the Charter on both procedural and substantive grounds.
The following sections of FIPPA were considered:
10 … every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,
(a) the record or the part of the record falls within one of the exemptions under sections 12 to 22 …
21(1) A head shall refuse to disclose personal information to any person other than the individual to who the information relates, except…
With respect to the substantive grounds, The Star asserted that the personal privacy exemption in section 21(1) of FIPPA violates the “open courts” principle (the importance to the public that judicial proceedings be universally known) which is embedded in section 2(b) of the Charter. That section guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
The Court found that the reported decisions of the Information and Privacy Commissioner (IPC) regarding production of records suggested that the application of the section 21 exemption had become the norm rather than the exception. It concluded that the framework of FIPPA had, in effect, created a system which prohibited the disclosure of adjudicative records containing personal information, unless the requester could establish its justification. This was in contrast to the intended purpose, which was to create a system whereby the onus would be placed on the holder of the records to justify why the record should not be disclosed.
The Court concluded that FIPPA violates s. 2(b) of the Charter and that the infringement could not be justified and therefore “saved” under section 1. In doing so, the Court reiterated that “The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it.” The principle directs administrative tribunals to protect confidentiality only where a party seeking it establishes that it is necessary to protect important interests. Accordingly, the onus must remain on the party seeking to keep the information from the public rather than the other way around.
The Court went on to address The Star’s assertion that the procedural regime under FIPPA created delays which also violated section 2(b) of the Charter. The Court found that the delay and bureaucracy occasioned by FIPPA around accessing adjudicative records burdened the exercise of s. 2 (b) rights. However the Court noted that “bureaucracy in and of itself is not a Charter violation” and that, when viewed on a systemic basis, was minimally impairing and therefore could be justified under section 1 of the Charter.
With respect to remedy, the Court ruled that one year was an appropriate length of time for the relevant sections of FIPPA to be “re-worked” should the legislature choose to do so, or alternatively, provide time for institution heads and the IPC to establish “a principled, tribunal-specific and context-specific basis for responding to requests under FIPPA for access to Adjudicative Records.”
The Ontario government has stated that it will not be appealing the decision. It remains to be seen what FIPPA amendments or privacy-related legislative reforms may be introduced by the new Ontario government in response to the Court’s decision.
The decision will likely lead to more openness in the province’s administrative tribunal system. This will require school boards to carefully consider the type of information that they are willing to provide to administrative tribunals on a strategic basis, and the potential need to anonymize such records, recognizing that rules generally requiring disclosure of all relevant documents continue to govern administrative proceedings.
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