Is your child having problems at school?
PBO’s Education Law Program offers free legal help for families whose children face challenges to their rights in public schools
Most people don’t think of school problems as legal problems. But children have rights when it comes to accessing special education supports, dealing with bullying, or in discipline matters like suspensions, expulsions and exclusion (situations when children are not allowed to enroll or told not to return to school).
The Education Law Program is Pro Bono Ontario’s free legal service for low and moderate-income families whose children face challenges to their rights at school. Through this program, volunteer lawyers help eligible students and their parents understand their legal rights and negotiate solutions when they feel unable to resolve conflicts with school administrators and officials.
Our volunteer lawyers can help in three ways:
- By consulting with students and families on their legal rights;
- By intervening on behalf of students with school administrators (by letter, phone or in person);
- By representing students with special education and/or discipline appeals.
Ready to take the next step?
There are two ways to get help from PBO:
To learn more or speak to our program co-ordinator about your child’s issue, call the Hotline:
- Tuesdays, Wednesdays, and Thursday afternoons, 12:30 – 4:00 PM
If you’re ready to apply for help, you can fill out our online application form.
After we receive your application, our program co-ordinator will reach out to you to discuss next steps.
FAQs about PBO’s Education Law Program
Will it cost me anything to see a lawyer?
Our lawyers work for free, however, you may need to pay any charges such as photocopying or filing fees, known as disbursements.
Who is eligible for assistance from the Education Law Program?
The program assists students and their families who would otherwise be unable to afford a lawyer. Each family is assessed on a case-by-case basis. Your case must have legal merit and you must be financially eligible.
What can a lawyer do for my child?
It varies by case. At the first meeting, your lawyer will discuss with you the extent of their involvement in your case.
I do not need legal representation, but want to discuss my child’s legal rights. Can a lawyer just give me advice?
Yes. All our lawyers start by discussing your concerns and giving you advice. In many cases, this is all that is needed.
We live outside of Toronto. Can you still help my child?
The Education Law Program is a province-wide program. We will try to find a lawyer in your community. However, if there is no lawyer in your community, we will look for a lawyer elsewhere who is willing to provide remote assistance.
It’s not always obvious, but many school problems are legal problems. Lawyers are effective because:
- They are trained in education law and legal strategy.
- They have no personal relationship with the student/family and can be an impartial advocate.
- School boards have lawyers representing them, so when a student has a lawyer, it levels the playing field.
- A lawyer’s involvement commands attention; problems are often solved more readily once the lawyer gets involved.
- A lawyer can help parents or guardians learn to be effective advocates for their kids.
I still have questions
If you still have questions before applying, you can speak to the Coordinator of this program by calling the Hotline during the hours set out above.
Education Law Resources for Parents
FAQs about School Suspensions in Ontario
What does it mean to be suspended?
A suspension is a mandatory absence from school given to a student as a form of punishment. The student is removed from the classroom temporarily for a period of 1 to 20 days, depending on the severity of the incident. The student will not be able to attend class or participate in any school-related activities. Once the suspension has been served, the student may return to the school.
The decision to suspend a student is made by the principal, or the vice-principal acting for the principal. Teachers cannot suspend students. A teacher must report any incident to the principal that he or she believes may warrant a suspension. The principal will then decide if the student should be suspended. When a student gets suspended, the principal will assign the student to a special program for suspended pupils.
This section is intended for students who have been suspended for a fixed period of time that is less than 20 school days and have been suspended without the possibility of being expelled being considered. A different process applies if the situation is serious enough that the principal might recommend that the student be expelled. If the student is told that an expulsion is being considered, the principal will suspend the student, for up to 20 school days, until the decision is made. For more information on that process, see our FAQs on expulsions, below.
Should I be concerned about a suspension?
Yes. A suspension can last up to 20 school days, which means a student could miss an entire month of school. It can be extremely difficult for a student to catch up to the rest of the class after missing school for this long, since the class may have covered a lot of material in that time. This challenge is even greater if the student was experiencing academic problems before the suspension. The absence from school can affect the student’s marks negatively and can impair the student’s ability to graduate on time or affect options available to a high school student after graduation.
If a student is removed from the class for more than 5 days, a program for suspended students will be available for them. Although this may help the student, these programs do not keep the student up to date with their own class and are not a complete substitute for the classroom.
In addition, suspensions are recorded on a student’s Ontario Student Record (OSR). If the student is being considered for a suspension (or expulsion) in the future, the principal will review the OSR to determine if there are any previous suspensions. If there are, this will likely influence the principal’s decision and he or she may impose a longer suspension or an expulsion. This is a particular concern where a previous suspension was for bullying, because if allegations of bullying are made in the future and the principal believes that the allegations are well-founded, the principal must suspend the student and, consequently, could expel the student. This reflects both the significance to a student of a previous suspension and the significance of the manner in which the conduct is described.
The student’s OSR will also be accessible to principals and teachers that the student will have in the future, even if the student transfers to another school. Having a suspension on an OSR can affect the way a teacher perceives the student and may impact the learning environment of the student in the future.
There could also be issues related to the suspension that will arise with police involvement or the involvement of the Children’s Aid Society.
What can be done about a potential suspension?
When a student is at risk of being suspended – if the parent or student is aware of that risk – it is important that the student and parents become involved in the process and begin taking certain steps as soon as possible. While a suspension cannot always be prevented, the consequences of the suspension or the length of a suspension can often be reduced by early and ongoing action on behalf of the student.
Please review the suspensions and expulsions checklist, linked to at the bottom of this page, for actions that can be taken to prepare for the disciplinary process. Different steps can be taken at different times – the lists below are not exhaustive, and some actions may not be appropriate in specific instances.
Who gets notified about suspensions?
Under the Education Act, most notices about suspensions must be given to both the student’s parents or guardian and the student. However, only the parent or guardian is able to appeal a suspension to the school board trustees, unless the student is at least 18 years old or is 16 or 17 years old and has withdrawn from parental control (that is, does not live at home). These older students can appeal the suspension decision themselves.
The principal must take all reasonable steps to inform a parent or guardian within 24 hours of imposing a suspension (which also should happen promptly after the incident occurs) and must give written notice promptly to both the student and a parent or guardian (unless the child is 18 or is 16 or 17 and has withdrawn from parental control). The written notice must describe:
- why the student has been suspended
- how long they will be suspended
- information on enrollment into a suspended students program, and
- the name of the supervisory officer to whom any appeal from the decision should be directed
The principal must also inform the student’s teachers that the student has been suspended.
What sort of behaviour is required for a suspension?
The Education Act provides that students can only be suspended if they commit specific prohibited actions in a situation that is related to the school. The school does not have the power to suspend a student for actions outside of school that do not impact the school. The actions must occur either at the school, at a school-related activity (such as a school athletic event, a school dance or a school trip), or in circumstances where the conduct impacts on the school environment. This last item allows schools to suspend students for activities such as cyber-bullying of other students or school staff, or conduct directed at another student, even though it happens off school property.
Actions that can warrant a suspension fall into two categories: acts for which the principal may suspend a student, and acts for which a principal must suspend.
A principal may suspend a student if the principal believes that the student has engaged in any of the following activities:
- Uttering a threat to inflict serious bodily harm on another person,
- Possessing alcohol or illegal drugs,
- Being under the influence of alcohol,
- 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, or
The principal does not have to suspend a student for any of these actions, but the principal may suspend. In addition, principals may suspend a student for behaviour that is identified in a school policy such as a code of conduct. Often the behaviour that is identified as a basis for a potential suspension in these policies is vaguely defined such as, “conduct injurious to the moral tone of the school”. This means that it can be very difficult to know what conduct may be prohibited under these provisions.
On the other hand, a principal must suspend a student if the principal believes that the student has engaged in any of the following activities:
- 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 to a minor
- Bullying if,
- the pupil has previously been suspended for engaging in bullying, and
- the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person.
- Any activity that the principal would otherwise have discretion to suspend, where the conduct is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour,religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor.
Again, the school board may identify in its policies additional conduct for which a suspension must be imposed. Where a suspension must be imposed, the principal must still determine the appropriate length of suspension.
Where a principal must suspend a student for certain conduct, the principal may also recommend an expulsion. If the principal has suspended a student pending possible expulsion, rather than suspend the student for a fixed period, reference should be made to the appropriate information under the expulsion heading below.
Are there any factors that weigh against a suspension or reduce the length of a suspension?
Even if the action that is the basis for the suspension occurred, the principal must consider whether there are other factors, known as “mitigating factors”, that would indicate that it would not be appropriate to suspend the student if a suspension is discretionary, or suspend the student for less time, if a suspension is mandatory. These are set out in the Act and the regulations. Even where the misconduct occurred, the board does not have to suspend the student.
There are three primary mitigating factors listed in the Act that the principal needs to consider when deciding what sanction to impose on a student, and, specifically, whether to suspend (or expel) a student and for how long:
- Did the student have the ability to control their behaviour?
- Did the student have the ability to understand the foreseeable consequences of their behaviour?
- Does the student’s continuing presence in the school create an unacceptable risk to safety of anyone else in the school?
Properly considered, these factors encourage principals to avoid punishing students who did not act deliberately in the incident and also to avoid removing a student from the school unless there was an identifiable and unacceptable risk to someone else in the school. The underlying premise is that it is better for students to remain in school unless other considerations, such as an overriding safety concern, take priority.
The Regulation to the Act sets out a list of additional specific items that must be taken into account by the principal in imposing discipline:
- The student’s history: has the student been in trouble before and, if so, for what and how often? Has the student had conflict with the other individuals involved?
- Whether a progressive discipline approach has been used with the student: has the school tried to address the conduct by lesser sanctions and by taking steps to educate and support the student to correct the behaviour?
- Whether the activity for which the student may be or is being suspended was related to any harassment of the student because of their race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment: was the student responding to some form of bullying by other students and lashed out?
- How the suspension would affect the student’s ongoing education: will the student lose essential educational supports if suspended or will the suspension prevent the student from completing their education?
- The age of the student: was the student so young that they may not have really intended or understood their actions?
In the case of a student for whom an Individual Education Plan (IEP) has been developed, there are other specific considerations that are intended to ensure that a student is not punished from conduct that flows from the student’s disability:
- Whether the behaviour was a consequence of a disability identified in the student’s IEP,
- Whether appropriate individualized accommodation has been provided, and
- Whether the suspension is likely to result in an aggravation or worsening of the student’s behaviour or conduct.
If the school has not accommodated a student, and the student or the student’s parents believe the student was suspended for conduct that flowed from their disability, the student’s parents can make an application to the Human Rights Tribunal of Ontario, in addition to appealing the suspension decision.
Many boards also provide guidelines to principals as to the appropriate range of suspension for the various acts that may justify a suspension. While the mitigating considerations in the Act and regulation can supersede these in an appropriate case, it is important to be aware of the ranges that a specific board encourages principals to apply.
The principal is required to take into account any special or mitigating circumstances that apply to a student’s case before determining, in cases where a suspension is discretionary, whether the student should be suspended and, if so, for how long. In cases where a suspension is mandatory (see above), the principal must consider these same factors in determining how long a suspension should be. It is important to note that, while the suspension may be mandatory, there is no minimum length for a suspension, so it could be reduced to a token amount in an appropriate case. The student and parents are entitled to put these mitigating factors forward before the principal when the suspension is first considered, or to the school board when the decision is appealed.
How can I appeal a suspension?
To appeal a suspension, you must be the student’s parent or guardian or, if the student is over 18 (or is 16 or 17 and has withdrawn from parental control), the student.
You must give notice to a “Supervisory Officer” designated by your school board within 10 days of the start of the suspension. The Supervisory Officer will be named in your notice of suspension and is typically the superintendent responsible for the area in which the school is located. There is no specific form to be used to give notice of the appeal, or any particular wording, other than to say that the person seeks to appeal the suspension. However, the notice should be in writing and either faxed or delivered to the Supervising Officer. The notice should include the following information:
- the student’s name,
- the name of the school,
- the principal’s name,
- the date and length of the suspension, and
- the contact information (phone, address, email, and fax, if any) for the person.
A copy of the suspension letter should be attached to the notice of the appeal.
The Supervising Officer will typically speak to the parent who has given notice of the appeal to see if the matter can be resolved without the formal appeal. However, this process is not mandatory, and the parent can insist on the appeal being heard by the school board trustees through the formal process.
A group of trustees will hear the appeal within 15 days of receiving the appeal notice, unless all parties to the appeal agree on postponing the appeal to a later date. The number of trustees who will hear the appeal will vary from school board to school board, although there must be at least three trustees.
It is important to note that the appeal does not postpone the suspension until the hearing. The suspension must be served by the student, even where an appeal is commenced. This means that, in many cases the suspension will have been completed. In these cases, the only reason for appealing is to remove the suspension from the student’s record.
The precise procedure for a suspension appeal will vary from school board to school board. In general, the parent will be allowed to have the student and other witnesses testify about what happened. There is usually an opportunity to question the principal or vice-principal who imposed the suspension, and who will present the reasons for the decision at the appeal. However, the principal will not generally call the students or others who supposedly saw the actions that led to the suspension; the principal will only provide a summary of what they understood those witnesses to be saying. The parents can also talk about any mitigating circumstances that may exist or, if the student has disabilities that impacted the behaviour, the student’s disabilities. These factors would be identified to reduce, or eliminate, the suspension. Even when the student themselves isn’t entitled to appeal the decision, they are entitled to attend the appeal hearing and make a statement.
What happens after a suspension appeal?
After the appeal hearing, the trustees will make a decision. In some boards, the decision may be delivered the same day after the trustees have a chance to discuss the situation. Otherwise, board staff may advise the parents and student of the decision the next day or later. The decision has to be given within 15 days of receiving the appeal notice, unless everyone agreed to an extension of time for either the hearing of the appeal or the release of the decision. The trustees will make one of three possible decisions:
- Confirm the suspension and the duration of the suspension.
- Confirm the suspension, but shorten its duration.
- Cancel the suspension (even if it has been served).
If the suspension is reduced, the change will be made in the student’s Ontario Student Record (OSR), and the original suspension will be removed. If the suspension is cancelled, any reference to the suspension will be removed from the OSR. The OSR is the student’s permanent school record.
The decision of the board on a suspension appeal is final and cannot be appealed again. However, if the parents or student feel the process was clearly unfair or unreasonable, it might be possible to challenge the board’s appeal decision by an application to the Superior Court for what is known as judicial review. This is an exceptional remedy and not often granted. A lawyer should be consulted as to whether this is viable in the particular circumstances of a given case. In some situations, even though a suspension remains on a student’s record after an appeal, it may be possible in the future to have the principal remove the suspension from the student’s OSR if it is no longer considered to support the student’s learning or has a negative impact on the student’s ongoing learning (for example, where the behaviour was an isolated incident). This decision may be subject to certain restrictions where the suspension arose from violent behaviour. The parents would need to raise this question with the principal.
What is Progressive Discipline?
Progressive discipline is an educational strategy that the Ontario government has adopted which focuses on promoting positive behaviour using proactive steps, to address the causes of negative behaviour and applying appropriate and proportional responses to negative behaviour, rather than focusing only on punishment of negative behaviour. It is not simply a disciplinary model that insists on imposing sanctions of an increasingly, or progressively, harsher nature. Progressive discipline is a disciplinary model that responds to inappropriate student behaviour as needed, but also fosters positive behaviours throughout the school environment, so as to reduce the occurrence of negative behaviours. All Ontario school boards are required to have and implement policies supporting the use of progressive discipline.
School boards (and therefore schools) are required by law to have in place appropriate prevention programs, as well as systems of interventions, supports and consequences that seek to address the causes of inappropriate behaviour before it escalates to more serious behaviour. These strategies draw on a range of available resources. Parents, students, principals, teachers, non-teaching staff (e.g., social work, child and youth work, psychology, etc.), community partners, parent involvement committees, and social service agencies may be involved in different aspects of these strategies. Board policies and procedures are to take into account local needs and circumstances (e.g., geographical considerations, demographics, cultural needs, and availability of supports and resources).
Incorporating a progressive discipline approach, the law requires that when a principal is considering suspending or expelling a student, they must have reasonably tried to use early and ongoing intervention strategies to address inappropriate behaviour–and the underlying causes of that behaviour – before more punitive action is taken. In other words, a student should not be suspended or expelled unless early and/or ongoing intervention strategies have been used without success to address the behaviour and, except for the most serious behaviours, lesser punishments have been implemented for the student in the past.
Examples of early intervention strategies include:
- consultation with parents
- verbal reminders
- review of expectations
- written assignments that require reflection and involve a learning component, and
- requiring a student to perform volunteer service to the school community
- conflict mediation
- referral of a student to counseling
- use of necessary learning or behavioural supports for students
Where inappropriate behaviour persists, ongoing interventions may be necessary to address underlying causes of inappropriate behaviour.
Board policies on progressive discipline must:
- outline a range of prevention programs, interventions, supports, and consequences, including circumstances in which short-term suspension, long-term suspension, or expulsion may be the response required, and
- require use of the most appropriate response, as outlined in the board’s or school’s progressive discipline policy, to respond to a student’s behaviour, while taking into account the unique circumstances of the student, including – where a student has special education needs – the expectations and supports identified in the student’s IEP (Individual Education Plan).
In addition, other Board policies must address other related issues that are essential to building a positive school community:
- providing opportunities for the school community to increase their understanding of such issues as homophobia, gender-based violence, sexual harassment, inappropriate sexual behavior, critical media literacy and safe Internet use, and
- helping school staff to support students who wish to participate in gay-straight alliances and in other student-led activities that promote understanding and development of healthy relationships.
FAQs about School Expulsions in Ontario
What does it mean to be expelled?
When a student is expelled, they cannot attend one or all schools in the school board. The student also cannot take part in any activities of the school, including sports, field trips and graduations. There is no time limit to an expulsion, and when it ends depends on the type of expulsion.
There are two forms of expulsion:
1. An expulsion from one school
This means that the student cannot go to the school they were attending. The student must be assigned to another school in the school board. The appropriateness of the programs available at the other school to the student’s needs, the distance to the other school, and any connections between the student and the other school should be considered in the decision. While the student and parents can express a view as to what school is preferred, the ultimate decision generally rests with the board. Different boards will allow for different levels of input into the decision.
2. An expulsion from all schools in the board
This means that the student is not allowed to attend any school in the school board. A student expelled from all schools in the board is assigned to a program for expelled students. Every school board must have such a program. The expulsion does not remove the student from the board’s responsibility: that only happens if the student transfers to another board or the parents change their tax support. The student expelled from all schools in the board can only return to a regular school once they have successfully completed the program or satisfied the objectives of those programs in another way.
Should a student or the student’s parents be concerned when an expulsion is being considered?on 2
Absolutely. An expulsion is a big deal. There can be several consequences of an expulsion:
- Whenever a student is removed from school for a period of time, either by a suspension or an expulsion, the student may fall behind in their classes. This outcome is even worse in a semester school. Falling behind means that the student will need to work harder to learn the material when they get back to school; this will be very hard for many students. In turn, this can mean lower marks, which can be particularly significant towards the end of high school when a student is considering applying for college or university. Students can also fail courses and lose credits as a result, which may make it hard to graduate with their peers. While schools rely on the supports that may be available through a suspended or expelled students program to avoid these problems, even the best of these programs are a poor substitute for being in a regular school setting. The programs will generally offer no more than the core courses and will not have the facilities for more specialized courses. Some students find the environments are not conducive to learning, and the dislocation caused by the transfer of the student from a local school to a new environment often a long way away can also hinder learning.
- Expulsions are recorded in the student’s Ontario Student Record (the formal school record that every student in Ontario must have). This means that if the student gets into problems again in the future they will have a “strike against them”, and they may face more serious consequences than the future conduct may otherwise suggest.
- Teachers may have a different attitude towards the student after they have been expelled, which can make learning harder.
- The expelled student will have to continue school away from their own neighbourhood and friends. This will be the case whether the student has to go to an expelled students program or a different school. The student may also have to travel a significant distance to attend another school once expelled.
If a student might be expelled, the situation should be taken seriously, and the student and their parents should consider how best to respond and take part in the process.
Who gets notice about an expulsion or other disciplinary proceedings?
Under the Education Act, most notices about suspensions and expulsions must be given to both the student’s parents or guardian and to the student. However, only the parent or guardian is a party to an expulsion hearing. The only exceptions to this general rule are when the student is at least 18 years old or is 16 or 17 years old and has withdrawn from parental control (that is, does not live at home). Notwithstanding how the formal rights to participate are framed, it is advisable that parents and students communicate very clearly with one another and work together when facing an expulsion, given the very direct impacts that an expulsion has on the student and the indirect impacts on the parent.
How does a student get expelled? (suspension and investigation phase)
Once an incident occurs that a principal believes may justify an expulsion of the student involved, the principal will first suspend the student from school and all activities related to school, so that the principal has an opportunity to investigate the incident and decide what steps to take. This suspension will be for an indefinite period, up to the later of the conclusion of the investigation or an expulsion hearing; however, without consent of the parent, the suspension cannot be for more than 20 days.
The principal must make reasonable efforts to tell the student and the student’s parents or legal guardians (unless the student is 16 or 17 years old and has withdrawn from parental control, or the student is over 18 years old) within 24 hours that the student has been suspended. This means that they must speak to the student and, at a minimum, attempt to telephone the parent at any numbers on file and leave a message if they are not available. The principal also must tell the student’s teacher of the suspension.
In addition, the principal must provide a letter giving notice of the suspension. The letter must state the reason for the suspension and how long the suspension will last (which will almost always be 20 days). The letter must also provide information about the investigation that will be conducted. (In practice, very little information is given by the principal about the investigation or how it will be conducted, even though the Education Act is clear about this.)
If the principal is investigating for a possible expulsion, the student cannot appeal the suspension until after the principal has decided whether or not to recommend an expulsion.
During a suspension pending expulsion, the student will be assigned to a program for suspended students. The letter that says that the student is suspended pending a possible expulsion will also indicate which suspended students program the student has to attend during the suspension. Although it may not be a student’s first choice for a number of reasons, it is in the student’s best interests to attend the program, as it will provide an opportunity for them to keep up with school work. Some schools will decline to provide a suspended student with work outside the program.
Once the suspension is imposed, the principal must promptly conduct an investigation into the allegations in accordance with the school board’s policy. As part of the investigation, the principal must make all reasonable efforts to speak with the student and their parents (unless the student is 16 or 17 years old and have withdrawn from parental control, or over 18 years old) and any other person who may have relevant information about the incident. At the end of the investigation, the principal can:
- decide not to recommend an expulsion but suspend the student for 1 to 20 days;
- decide not to recommend an expulsion and take the suspension out of the student’s record; or,
- recommend an expulsion and refer the case to the school board for a hearing.
A principal cannot expel a student on their own. The principal can only recommend to the trustees of the school board that a student should be expelled. If a principal recommends to a board that a student be expelled, the board must hold an expulsion hearing before a group of trustees. Although, in practice, trustees typically adopt the recommendation of the principal, this is intended to provide a check on principals who make poor decisions.
Parallel police involvement
If a student over the age of 12 is suspended pending an investigation for conduct that requires a suspension under the Act, the principal will generally be required under school board policy, or under an agreement between the school board and the police service, to notify the police regarding the conduct. In addition to the potential for a student being charged criminally, this creates many difficulties for the student in the school discipline process under the Act. Two particular issues involve the ability of the student to make a statement to the principal to explain their conduct and the potential that the school may delay in the suspension.
A student has different rights when dealing with the police than with the principal. When being questioned by the police, a student under the age of 18 is entitled to have an adult present and is also entitled to obtain legal advice before being interviewed if the student is believed to have committed a criminal offence. The student should not answer any questions from the police until a parent or other adult has been contacted and is present. If the student does not want the parent present, the student should give the police the name of another trusted adult who can attend instead. Often if a parent cannot attend, the school will suggest that the principal sit in on the interview. The student should not agree to the principal, or any other school official, sitting in at the interview as their selected adult.
A student over 18 should speak to a lawyer before being interviewed. The student over 18 is not obliged to answer any questions asked by the police.
At the same time, once police are involved, the student and his or her parents need to think very carefully about speaking with the principal. It is possible, and even likely, that the information provided to the principal will be relayed to the police. This could prejudice the student in defending any criminal charges. Unfortunately, the student will usually want to provide information to the principal to assist him or her in making a favourable decision as to whether to expel the student or not. To balance these concerns, it is generally best for any information that would assist the student to be provided by a parent or other adult, rather than the student. However, legal advice should be obtained in any situation where this problem arises.
The other problem that may arise once the police are involved is that the principal may defer making a decision on whether to suspend the student until the police investigation is complete. Instead of suspending the student, the principal may tell the student and their parents that the student is being “excluded” from the school, or simply shouldn’t come to school, until the police investigate the situation. It is open to debate whether the principal has the authority to do this under the Act and whether the exclusion is actually an improperly implemented suspension. In general, the student (or parents/guardians) should insist on the suspension, not an exclusion, being put in place immediately so that the procedural protections arising under the Act come into effect. While the principal may need to delay his or her investigation, it does not follow that the principal must delay the suspension. In fact, if the principal had sufficient reason to call the police, the principal should also have sufficient reason under the Act to suspend the student. At the same time, the police should be contacted to determine if they have told the school to defer its investigation; absent such a direction, there is no basis for the principal to not impose the suspension.
Children’s Aid Society
In certain cases where a student is under 16 years of age, the Children’s Aid Society may also be notified in relation to the events that gave rise to the suspension.
The principal’s decision on expulsion
At the end of the principal’s investigation into whether an expulsion should take place, the principal must make a decision.
If the principal decides not to recommend an expulsion, either because the evidence does not sufficiently establish that the student has done something that warrants expulsion, or the “mitigating factors” show that an expulsion is not appropriate, then the principal must provide a written notice indicating that:
- the student will not be subject to an expulsion hearing;
- the suspension is confirmed, confirmed but reduced in duration, or withdrawn altogether; and
- unless the suspension was withdrawn, there is a right to appeal and an explanation will be given as to how to exercise that right.
The student can return to school once the suspension period is over, even if the suspension has been appealed.
If the principal decides to recommend expulsion, they will prepare a report and the matter will be referred to the school board for a hearing to decide if the student should be expelled. The principal’s report must contain the following:
- a summary of the principal’s findings;
- whether the principal recommends expelling the student from one school only or all the schools in the school board;
- the principal’s recommendation for the type of school that will benefit the student if expelled from one school only; and,
- the principal’s recommendation for the type of program for expelled students that might benefit the student if expelled from all schools in the school board.
A copy of this report must be given to the student, and the student’s parents or guardians (unless the student is 16 or 17 years old and has withdrawn from parental control or is over 18 years old), and any other persons specified by school board policy (for example, safe schools personnel).
Before the expulsion hearing
Before the hearing, the student’s parents and the student will be given notice of the recommendation to expel as well as a copy of the principal’s report, a copy of the school board’s policies and procedures, and possible outcomes of an expulsion hearing. The student’s parents and the student will also be told they have a right to respond to the principal’s report.
The student and parents can attend the hearing. However, only the parents are “parties” to the hearing (unless the student is at least 18 years old – or 16 or 17 years old and has withdrawn from parental control). A student who is not in this category may still attend and make a statement on his or her own behalf. The principal is also a party. A party can attend, make arguments to the board, and asks questions of the other parties.
Minutes of Settlement
In most boards, a representative of the school board will contact the parents prior to the expulsion hearing and ask whether or not the parents and student want to “settle” the hearing by way of an agreement between the parents and the school board, commonly called “Minutes of Settlement”. If the parents and student agree with the version of events in the principal’s report and accept what the principal recommends should happen as a result and, consequently, do not want a hearing, they may want to sign this agreement so that they can have some control over the outcome. However, although the trustees will usually agree with the Minutes of Settlement, once signed, they do not have to do so. There will still be an expulsion hearing after the Minutes of Settlement are signed, and at the hearing the trustees will have a choice as to whether or not they wish to accept the Minutes of Settlement or make different conclusions.
Parents and students should take time to read and consider the Minutes of Settlement, and preferably get advice from a lawyer before signing the document. If there are criminal charges against the student, the student’s criminal lawyer should certainly be consulted before signing. Minutes of Settlement prepared by the school board may also contain a clause by which the student and parents agree not to make any future claims against the school board, including Human Rights complaints. These rights may not be something that parents and students want to give up. A parent or student presented with Minutes of Settlement should be sure they agree with all of the terms, including any version of the facts contained in the document before signing it.
The expulsion hearing
The board may designate a committee of at least three trustees of the board to conduct the expulsion hearing. Most boards operate on this basis; however, some use a larger group of trustees for these hearings.
Each party is able to make a submission in writing, orally or in a mixture of both oral and written material. Apart from anything else, the parties need to tell the board their position as to whether – if the student is expelled – the student should be expelled from one school or all schools and whether – if the student is not expelled – the suspension should stand, be reduced, or be withdrawn altogether. The exact process used by the board will differ from board to board, but the process has some common features in all boards. The board should have provided a summary of their specific procedures to the parent in advance of the hearing.
At the hearing, both the principal and the school board trustees may have a lawyer or paralegal representing them. The principal will present evidence to the trustees as to why the student should be expelled. The parent and student can also be represented by a lawyer and can question the principal’s evidence and present their own evidence.
The parents (and student where the student is the party) have rights during this process which include the following:
- having a lawyer to assist them (and many people find it helpful to have a lawyer);
- calling witnesses and presenting evidence that relates to what happened and factors that suggest the student should not be expelled;
- cross-examining (questioning) all of the witnesses called by the principal (including the principal); and,
- explaining why there are mitigating circumstances that the trustees should consider in their decision.
Expulsion hearings are not open to the public. That means that apart from the trustees, an administrative person helping the trustees, the principal, possibly a superintendent, the parents, the student, and lawyers assisting each of the parties, no one else will be able to stay in the hearing room.
The principal should not just summarize what the principal thinks happened without saying what evidence the principal considered, for example, what was found in the student’s locker, how the principal knew it was an illegal drug (i.e. marijuana), what mitigating circumstances the principal considered and why the principal thinks expulsion is the right answer. But, it is rare that the principal will have the people who gave information to the principal present to testify. Usually, even if the principal identifies who provided the information relied on by the principal, the information is put forward by the principal by way of a report from the principal. If any other witnesses are called by the principal, it would usually only be a vice-principal or other teacher, and not other students.
The trustees may or may not accept the evidence provided by the principal as valid and should consider whether the principal’s investigation was conducted properly and fairly, and not based exclusively on hearsay (information passed on by word of mouth). However, it is rare that the trustees will not accept the factual evidence provided by the principal, even if they do not agree with the result recommended.
In making its decision, the board must take into account the evidence they have heard, the submissions of the parties, any mitigating factors (discussed below) and any written response to the principal’s report from a person who received the report.
Timing of the expulsion hearing
There is one very important rule regarding the timing of an expulsion hearing. The board cannot expel a student if more than 20 school days have passed since the student was suspended, unless the parties agree to a later deadline. That means that the hearing must take place within twenty days of the start of the suspension if the parents do not agree to adjourn the hearing. Parents need to be aware of this when the school board asks to delay the hearing. If more than 20 school days have passed without a hearing or an agreement to extend the deadline, the student can return to school (although the principal could try to exclude a student considered a safety risk), so the parents and student should not agree to an extension unless they have talked to a lawyer or considered the consequences of their decision.
The time requirement involves 20 school days, which would typically mean four full weeks. However, this means that the suspension can often drag on for much longer if there is a school vacation or holiday involved. In the worst case, a student suspended after the middle of June may not have an expulsion hearing before the middle of September.
What is the basis for the expulsion?
The Education Act states that students can only be expelled if they do specified prohibited actions. If the student has not done one of these things, they cannot be expelled. That is not to say that they must be expelled if they did the prohibited act; the student need only be suspended under the Act. But, the student cannot be expelled if they did not do one of the listed actions.
As well, the activity must have occurred either on school property, at a school-related event (such as a dance or sporting event away from school), or in circumstances that may impact on the school environment (such as cyber-bullying a classmate from home). Again, if the prohibited conduct did not occur in one of these settings, the student cannot be expelled. Where misconduct occurs off campus, it is not enough for the principal to assume that there is link between the misconduct and the school environment: the principal must be able to show that it is more likely than not that the activities will have a clear negative impact on the school climate (including particular students) at some point in the future.
The following activities require the principal to start an investigation and consider whether the student should be expelled:
- having a weapon, including a firearm;
- using a weapon to threaten or hurt another person;
- physically hurting another person so that person requires medical attention;
- sexually assaulting someone;
- selling weapons or illegal drugs;
- robbing someone;
- giving alcohol to a person under 19 years old; or
- engaging in any other activity for which the school board has said that a student must be suspended.*
* Regarding this last bulleted point, each school board can decide what other conduct could lead to anexpulsion by setting it out in one of their policies, such as a code of conduct. Most schools give studentsa handbook that includes a code with the expected behaviour of all persons in the school and lists theconduct for which school board policy requires a suspension. The prohibited conduct must also be setout in a board policy though in addition to the handbook or any rule at an individual school. Examplesof the conduct prohibited in the policies of some school boards include:
- threatening to seriously hurt another person;
- vandalizing the school or property on the school;
- physically assaulting someone;
- hate-motivated violence;
- inciting harmful behaviour (such as encouraging a fight); and,
- “conduct injurious to the moral tone of the school”.**
** The last one is used by some school boards as an ambiguous way to avoid the need for a clear codeof conduct. These are just examples; they may or may not be prohibited by a specific school board.
Are there any factors that weigh against an expulsion?
Even if the action that is the basis for the expulsion occurred, the principal must consider whether there are other factors, known as “mitigating factors”, that indicate that it would not be appropriate to expel the student. These are set out in the Act and the regulations. Even where the misconduct occurred, the board does not have to expel the student.
There are a range of facts that the principal must consider. Their effect ties into the three primary mitigating factors that need to be addressed by the principal:
- Did the student have the ability to control their behaviour?
- Did the student have the ability to understand the foreseeable consequences of their behaviour?
- Does the student’s continuing presence in the school create an unacceptable risk to safety of anyone else in the school?
In reaching a conclusion in this regard, the principal must consider the following:
- The student’s history: has the student been in trouble before, and, if so, for what and how often?Has the student had conflict with the other individuals involved?
- Whether a progressive discipline approach has been used with the student: has the school tried to address the conduct by lesser sanctions and by talking steps to educate and support the student to correct the behaviour?
- Whether the activity for which the student may be or is being suspended or expelled was related to any harassment of the student because of their race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment: was the student responding to some form of bullying by other students and lashed out?
- How the suspension or expulsion would affect the student’s ongoing education: will the student lose essential educational supports if expelled or will the expulsion prevent the student from completing their education?
- The age of the student: was the student so young that they may not have really intended or understood their actions?
In the case of a student for whom an individual education plan has been developed,
- whether the behaviour was a consequence of a disability identified in the student’s individual education plan,
- whether appropriate individualized accommodation has been provided, and
- whether the suspension or expulsion is likely to result in an aggravation or worsening of the student’s behaviour or conduct
The principal (for the suspension), and the school board (at the expulsion hearing) are required to take into account any special or mitigating circumstances that apply to a student’s case before determining whether the student should be expelled and the type of expulsion. The student and parents are entitled to put these factors forward before the principal and the school board. The board must also consider whether the school has accommodated any disabilities the student may have, even if there is not individual education plan.
If the school has not accommodated a student, and the student believes they were expelled because of discrimination, the student and his/her parents can make an application to the Human Rights Tribunal of Ontario.
After the hearing – the decision of the trustees
After the hearing, the trustees will make a decision. Depending on the board, they will give their decision either at the end of the hearing after a break or the following day (since expulsion hearings are often at night). The school board trustees can decide to do one of four things:
- expel a student from all the schools in the school board;
- expel a student from their own school only;
- not expel or suspend a student at all, remove the suspension from the student’s record (even if the suspension has been served), and let the student return to school; or
- not expel the student, and either confirm or shorten the suspension.
The decision of the school board trustees must be in writing and must be given to the student, the student’s parents (unless the student is 16 or 17 years old and has withdrawn from parental control, or the student is over 18 years old) and the principal. They must give reasons for an expulsion. The decision is not released publicly.
If the student is expelled from one school only, the decision should state which school the student will now be attending. If the student was expelled from all the schools in the school board, the decision should give the name and location of the expelled students program the student must attend. This information is not always set out in the decision and may be provided by the staff of the board, typically a superintendent or someone working with the trustees. The decision must also give information on how to appeal the decision for an expulsion to the Child and Family Services Review Board.
If the trustees decide not to expel a student, the decision is final and cannot be appealed by the school.
After the hearing – other consequences
If the decision of the school board is to expel or suspend the student, a record of the expulsion will be included in the student’s Ontario Student Record (usually referred to as the “OSR”). This is the student’s permanent school record; although it is possible that the decision can be removed from the OSR in the future if it is no longer considered to support the student’s learning. Otherwise, it will generally remain in the record unless removed on appeal.
A student who is expelled from all schools must attend the school board’s program for expelled students. An expelled students program is a program that is intended to both support a student’s learning while expelled from regular schools and provide assistance in addressing any behaviour problems that may have led to the expulsion. This could include anger management, dispute resolution or other non-academic programs. The program uses small classes for teaching. The program should be tailored to a student’s academic needs and should must conform to a student’s Individual Education Plan (IEP), and any other special education needs. It is important that any student in such a program, and the student’s parents, continue to communicate with the people running the program to ensure that this is occurring on an ongoing basis.
Before a student can return to school after an expulsion, the student must show:
- respect for themselves, for others and for authority;
- that the student understands and can accept the consequences of their actions;
- the ability to participate in a school without compromising the safety of themselves or others; and
- that the student can follow the standards set out in the Provincial Code of Conduct.
A student who successfully completes a program for expelled students and met the objectives of the program, or has satisfied the objectives for a successful completion of such a program outside the program, is entitled to be readmitted to a school within the board if the student has been expelled from one school (as opposed to the whole board). The board may recommend a specific school or they may specify schools the student may NOT go to. This decision is, of course, made by the staff at the program. This means that a student and their parents may think that the student has met the objectives, but the school staff might disagree and keep the student in the program.
A student who has been expelled from all schools in one board can apply for admission to another school board. However, if the student has not successfully completed the expelled students program, or satisfied the objectives of those programs in another way, the new school board will typically assign the student to one of their expelled students programs (although they could allow the student to attend a regular school).
An expulsion from one school means that the school board has to admit the student to another school. Although the student may have input into the choice of school, the student does not choose the school. The superintendent and others from the school board will select a school.
Appealing an expulsion decision
If the parent/guardian, or adult student, is not satisfied with the School Board’s decision to expel, the decision may be appealed to the Child and Family Services Review Board (Review Board). The school board’s decision could be appealed for the following reasons, among others:
- the student did not commit the action that is the basis for the expulsion;
- the board’s decision to expel did not take into account the mitigating factors; or
- the action committed by the student occurred off the school grounds and did not negativelyimpact the school environment.
The Review Board is independent of school boards. The members are appointed by the Government of Ontario. Contact information for the Review Board is:
Child and Family Services Review Board
2 Bloor Street West, 24th Floor Toronto ON M4W 3V5
Tel: 1-888-728-8823 (toll-free)
The appeal is started by the parents (or the student if the student is 16 or 17 years old and has withdrawn from parental control or is over 18 years old) sending a letter to the Review Board. The letter must be received by the Review Board within 60 days of the date of the trustees’ decision to expel. The letter must include the date of the school board’s decision, the name of the school board that made the decision and the type of expulsion (from one school only or from all the schools in the school board). It should also include a copy of the school board’s written decision; however, if this has not been received, it is important to send the letter and tell the Review Board that the written decision has not been received. When the Review Board receives a letter of appeal, it has 30 days to start a hearing.
While the appeal proceeds, the student will have to attend the expelled students program (if expelled from all schools of the board) or the new school to which they have been assigned (if expelled from one school only).
At the appeal hearing, the school board will probably have a lawyer representing it. The hearing will be a new hearing, which means that the school board will need to call evidence to prove that there was a reason to expel the student and that the mitigating factors were considered but did not justify an outcome less than an expulsion. They cannot rely only on the fact that the trustees decided to expel the student. Although the principal may have been able to rely on “hearsay” evidence before the trustees–that is, evidence that the principal did not see directly but was told about by someone else–the Review Board requires the witnesses who saw the different events to testify. This allows the parents and student, or their lawyer, to ask those witnesses questions and better challenge their evidence. The parents and student will also have to present evidence to prove any different version of events or mitigating factors. The hearing will be more formal than the expulsion hearing.
The Review Board has the power to:
- confirm the school board’s decision to expel the student,
- change the type of expulsion from an expulsion from all schools to an expulsion from oneschool (or the reverse), or
- remove the expulsion from the student’s school record and allow the student to return to school.
The decision of the Review Board is final. The decision will be in writing with reasons. The decision will be public, but it will not identify the student or parents in any way. The student, the school board and the principal must follow the decision. Occasionally, one of the parties can ask a court to review the decision if, for example, the process was unfair or the Review Board applied the wrong law. A lawyer should be consulted before considering this possibility.
Appeals to the Review Board can be complicated. When considering an appeal to the Review Board, a parent or student is well advised to contact a lawyer first. If a person cannot afford a lawyer for the appeal, it may be possible to obtain Legal Aid if a lawyer thinks that there is a reasonable chance of success. Local legal clinics or Pro Bono Ontario can help individuals find a lawyer.
What can be done about a potential expulsion?
When a student is at risk of being expelled, it is important that the student and the student’s parents become involved in the process and begin taking certain steps as soon as possible. While an expulsion cannot always be prevented, the consequences of the expulsion, or the length of a suspension in the alternative to an expulsion, can often be reduced by early and ongoing action on behalf of the student. Different steps can be taken at different times. The suspension and expulsion checklists at the bottom of this page can help but are not exhaustive, and some actions may not be appropriate in specific instances.
- Ontario’s Education Act (Note: the information relevant to suspensions and expulsions starts at Section 300)
- Regulation 472/07 (Behaviour, Discipline and Safety of Pupils) under Ontario’s Education Act
- The Ontario Ministry of Education’s Website
- Ontario Ministry of Education’s Policy/Program Memorandum No. 145 on Progressive Discipline
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