Canada: Court Holds that the Principles of Procedural Fairness Apply to Independent Schools

Procedural fairness is an important issue in the context of student discipline at independent schools. This is illustrated by a recent case of the Alberta Court of Queen's Bench, J.O. v. Strathcona-Tweedsmuir School, in which a former student of Calgary's Strathcona-Tweedsmuir School (STS) was awarded a full tuition refund of $17,490 and $40,000 in damages for mental distress in connection with her expulsion from the school, which the court ruled was "a miscarriage of justice".

Background

STS is a well-known independent private school in the Calgary area with an excellent reputation. The plaintiff in the case, referred to as J.O. to protect her identity, was expelled in 2006 after she was accused of having sex in a public washroom at a school dance. The dance was held at the Calgary Golf and Country Club, and Doreen Lougheed, a member of the club and the sister-in-law of former Alberta premier Peter Lougheed, saw J.O. in the washroom with her boyfriend in a state of disarray. She believed the two had been having sex, and reported her concerns to the school.

When the principal of STS spoke with J.O. the day after the incident, she tried to explain to him what had happened. She told him that she had been drinking in a limousine en route to the dance, and had become ill. As a result, she asked her boyfriend to accompany her to the washroom to take care of her. Her story was corroborated by other students who had attended the dance and had been in the washroom at the time. However, the school refused to accept J.O.'s version of events, and saw no need for any further investigation, as it chose to believe Ms. Lougheed's account of what had taken place.

The principal of STS arranged to have a meeting with J.O. and her father to discuss the disciplinary consequences of the incident at the dance. In preparation for that meeting, J.O.'s father directed her to write down what had happened in as much detail as possible so that he could share her account with the school officials. However, while the parents believed the purpose of the meeting was to discuss whether J.O. had been having sex in the washroom, they quickly discovered the decision to expel her had already been made.

The school officials refused to read J.O.'s account of what had taken place. Instead, they took the position that the school had been very embarrassed by what she had done, which had been witnessed by a very credible and prominent witness, and would not investigate further. J.O. had to either withdraw from the school or face expulsion. The school refused to disclose the identity of the "prominent witness" to J.O. or her parents. As a result of the expulsion, J.O. and her parents began a civil action against STS seeking, among other things, damages for breach of contract and mental distress.

The Role of Procedural Fairness in the Disciplinary Process

The court ruled that the contract for instruction at STS contained an implied term of procedural fairness as a condition precedent to expulsion. It also held that, pursuant to section 21 of Alberta's Private Schools Regulation, STS was required to incorporate the principles of fundamental justice into its disciplinary rules.

While all of the parties to the litigation accepted the existence of a duty of fairness, they took very different positions with respect to its scope. The plaintiffs argued that the duty of fairness required the school to provide the student with three things: (1) notice of the case against her, (2) an opportunity to be heard and make representations, and (3) a decision by an unbiased tribunal. The defendants, on the other hand, took the position that the concept of fundamental justice is flexible, and an impartial tribunal is not required in the context of a private school. Rather, the minimum standard simply requires that the student be given notice of the case against her and an opportunity to be heard.

The court held that while STS, as an independent school, had considerable latitude with respect to its discipline procedure, it nevertheless had to ensure that whatever procedure it chose was fair. The procedure followed in J.O.'s case "fell considerably short of meeting STS's duty of fairness", even if the court accepted the defendant's position that only the minimum standard was required. Such a minimum standard was not met in this case because no one at STS took the time to consider J.O.'s side of the story.

The court held that STS should have accepted J.O.'s version of events, and while her actions on that night may have amounted to misconduct, they did not warrant expulsion. In his reasons, Mr. Justice A.D. MacLeod said that the school's actions "smack of a rush to judgment," particularly as the principal made no efforts to seek accounts other than that of Ms. Lougheed, who had misinterpreted the scene in the washroom. If the school had investigated the incident more thoroughly, and considered the statements of all witnesses, it is highly unlikely that J.O. would have been expelled. The school's administrators had been overly focused on the reputation of the school, and fairness to J.O. had been sacrificed as a result, in breach of the duty owed to her.

As Justice MacLeod observed, "expulsion is rightly characterized as the ultimate punishment a school can mete out, and both students and parents reasonably may expect that such a drastic punishment will not be imposed arbitrarily."

What Schools can Learn from this Case

The STS case highlights the fact that disciplinary decisions made by independent schools are subject to a duty of fairness which, if violated, can lead to a claim of breach of contract. As a result, independent schools would be well advised to ensure that due process and procedural fairness are provided whenever an incident is being investigated that may lead to expulsion. A full and proper investigation into the misconduct at issue is crucial in order to prevent expulsion decisions from being challenged.

It is particularly vital that a school making an expulsion decision provide the student with adequate notice of the case against him or her, as well as occasion to be heard. The opportunity to make submissions should apply to both the student and his or her parents. They should be given a chance to provide an explanation for the student's conduct, or challenge the allegations that have been made. It is also important that the school have a student discipline policy in place which sets out a procedure and rules that school administration will follow regarding circumstances that may give rise to possible suspension or expulsion. Students, parents and school staff should be informed about the provisions of the policy and a copy of the policy should be fully accessible to all members of the school community.

Given the importance of the interests at stake, expulsion decisions must not be arbitrary, discriminatory, or made in bad faith. Rather, they must only come at the conclusion of an investigation and decision-making process that meets the requirements of procedural fairness. As the court observed in the STS case, a school is entitled to reach the wrong conclusion about a student's misconduct, but only if it has been fair along the way.

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