Canada: Ontario’s Anti-Bullying Legislation Is Now In Effect

Effective September 1, 2012, Ontario became the third province in Canada to implement anti-bullying legislation. After intense debate in the Ontario legislature and discussion among the public, the Accepting Schools Act, 2012 was passed on June 5, 2012 and received Royal Assent on June 19, 2012. These most recent amendments to the Education Act will shape how principals, supervisory officers, and teachers identify, prevent, investigate and respond to bullying behaviour in Ontario schools.

The Accepting Schools Act, 2012, was developed in response to the growing concern about bullying behaviours, and several tragic suicides of bullied students. A recent study of the Public Health Agency of Canada1 reveals that nearly 20% of students report being bullied, while 40% of students report being both victims and bullies. The study's authors concluded that young people involved in bullying tend to have elevated levels of emotional and behavioural problems. Ontario's legislation is intended to identify and prevent bullying, and provide resources and support for educators and students as they deal with bullying incidents.

IMPORTANT NEW DEFINITIONS

Underpinning the new responsibilities and programs in the Education Act relative to bullying is a definition of the term "bullying". Subsection 1(1) Education Act now defines "bullying" as follows:

"bullying" means aggressive and typically repeated behaviour by a pupil where,

(a) the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,

(i) causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual's reputation or harm to the individual's property, or

(ii) creating a negative environment at a school for another individual, and

(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education.

The Accepting Schools Act, 2012, is intended to address the complexity of bullying among students and refers specifically to the context of bullying behaviour in schools. Bullying behaviour is, for the first time in Ontario, defined as including psychological, social or academic harm and harm to an individual's reputation. The definition refers broadly to bullying dynamics such as a power imbalance based on size, age, intelligence, peer group power, economic status, social status, family circumstances, gender expression and the receipt of special education, among others. These terms are not defined in the new legislation.

Moving the new definition of bullying from Ministry policy into the Education Act will give it enhanced legal authority. In this regard, it is hoped that there will be a greater awareness among all stakeholders, including students, teachers, school administration and parents as to what constitutes bullying and confirming that such behaviour is not acceptable in Ontario schools.

This definition of bullying pertains to repeated and aggressive behaviour "by a pupil". The previous definition in PPM 144 applied where bullying behaviour was initiated by any member of the school community. In this regard, the new definition only applies to bullying behavour that is initiated by a student.

The definition of bullying also refers to "typically repeated behaviour". In using this term, it is apparent that one serious and egregious incident could constitute bullying.

Recognizing that bullying in modern society can take many forms, including the use of technology such as the internet and social media, the Education Act now includes a specific reference to electronic and cyber-bullying concepts. The definition of bullying in the Education Act includes "the use of any physical, verbal, electronic, written or other means". Further, the concept of "cyber-bullying" is expressly included in the new definition of bullying:

... bullying by electronic means (commonly known as cyber-bullying), including,

(a) creating a web page or a blog in which the creator assumes the identity of another person;

(b) impersonating another person as the author of content or messages posted on the internet; and

(c) communicating material electronically to more than one individual or posting material on a website that may be accessed by one or more individuals.

Further, Ontario's student code of conduct will now include as one of its purposes "to prevent bullying in schools."

These extensive definitions signal the types of behaviours that are unacceptable in Ontario schools, and provide guidance and support to teachers, principals and supervisory officers as they carry out their responsibilities under the Education Act.

SIGNIFICANT NEW RESPONSIBILITIES FOR SCHOOL BOARDS

Policies

One of the powers of the Minister of Education under section 8 of the Education Act requires boards to develop and implement an "ethnocultural equity and anti-racism" policy. That requirement is now replaced by an "equity and inclusive education" policy.

This broad policy requirement is fleshed out by an amendment to school board responsibilities under subsection 169.1(1) of the Education Act. Effective September 1, 2012, school boards are required to address specific "equity and inclusiveness" goals as set out in two new paragraphs of subsection 169.1(1):

169.1(1)(a.1) promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;

169.1(1)(a.2) promote the prevention of bullying;

School boards have a general duty to monitor and evaluate the effectiveness of policies, including the new equity and inclusiveness policy. To that end, school boards are required by subsection 169(2.1) to undertake "school climate surveys" to collect information from its pupils and staff, and parents and guardians of students at least once every two years.

The Minister of Education is now required to establish policies and guidelines on student discipline that address specific bullying and equity matters. For example, the policies must identify inappropriate student behaviour including bullying, gender-based violence and incidents based on homophobia, transphobia or biphobia. The Minister's policies must also provide a disciplinary framework that provides for appropriate and progressive consequences, support and resources for affected students, prevention strategies, and opportunities for members of the school community to increase understanding and awareness of inappropriate behaviour.

The Minister must also establish policies with respect to bullying prevention and intervention, including such matters as training, resources to students who have been bullied or have engaged in bullying, strategies to support witnesses of bullying, reporting procedures that minimize possibility of reprisal, and the use of timely and appropriate disciplinary measures.

Further, the Minister will develop a "model bullying prevention and intervention plan".

In turn, school boards must establish, implement and post the following:

  • policies and guidelines with respect to student discipline that are consistent with the Minister's discipline and bullying policies, and
  • a bullying prevention and intervention plan, after having solicited the views of the school community and the public.

Professional Development

Intervention and support is considered essential to dealing with bullying in schools. In this regard, the Education Act now contains specific duties of school boards under section 170 to provide professional development programs "to educate teachers and other staff of the board about bullying prevention and strategies for promoting positive school climates."

Programs for Students

School boards now have a duty under section 170 of the Education Act to provide programs, interventions or other supports for students affected by bullying, whether having been bullied, engaged in bullying, or witnessing bullying behaviour.

DISCIPLINARY RESPONSES TO BULLYING

While public debate around the Accepting Schools Act, 2012 may have focused on equity and inclusiveness and the prevention of bullying, a significant portion of the amendments to the Education Act relate to a principal's authority to discipline students arising from incidents of bullying.

Duty to Report and Investigate Bullying

There are now several aspects to the duty to report and investigate bullying, all of which can be found under Part XII of the Education Act. Any school board employee who becomes aware that a student may have engaged in bullying, or the presence of a student previously suspended for bullying creates an unacceptable risk to the safety of others, is required to report the matter to the principal. Upon receiving such a report, a principal has a duty to investigate the matter.

After the principal investigates a matter, he or she is then required to communicate the results of the investigation back to the teacher or other school employee unless the principal is of the opinion that it would not be appropriate. In the course of communicating the results of the investigation, a principal must disclose only such personal information as is reasonably necessary. The requirement to communicate the results of an investigation places discretion in the principal's hands, and the details disclosed will necessarily depend on the facts of each matter.

Suspensions and Expulsions

Amendments to subsections 306(1) and 310(1) of the Education Act now include bullying as one of the activities affecting school climate that can lead to suspension. "Bullying" is listed under subsection 306(1) as an activity leading to possible suspension. It should be noted that two new paragraphs on bullying have been added under subsection 310(1) as activities requiring suspension and possible expulsion:

7.1

i. the pupil has previously been suspended for engaging in bullying, and

ii. the pupil's continuing presence in the school creates an unacceptable risk to the safety of another person.

7.2 Any activity listed in subsection 306 (1) that 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.

Persistent or ongoing bullying is now included among the serious activities requiring a suspension, and possible expulsion. In effect, repeat offenders and students whose suspension-worthy behaviour involving bullying has persisted will now face an elevated level of discipline. In addition, the "catch-all" provision in paragraph 7.2 gives the principal additional tools needed to suspend a student in a situation where inappropriate behaviour was motivated by hateful intentions.

Principal's Notice to Parents and Guardians

Section 303.3 of the Education Act deals extensively with a principal's interaction with parents and guardians in bullying matters. Where a principal believes that a student has been harmed as a result of bullying, the parent or guardian of the victim must be notified by the principal as soon as reasonably possible. With the passage of the Accepting Schools Act, 2012, principals are also required to notify the parent or guardian of the student believed to have engaged in the bullying activity that caused the harm.

There are exceptions to this notice requirement as follows:

  • where students are 18 years or older, or 16 and 17 year old students who have withdrawn from parental control; and
  • where the principal is of the opinion that notice would put the student at risk of harm from a parent or guardian, such that the notification would not be in the student's best interests.

The Accepting Schools Act, 2012 has changed the content of the notice a principal must provide to a parent or guardian relative to bullying incidents.

The Education Act previously required telling a parent of the nature of the activity causing harm, the nature of the harm and the steps taken to protect a student's safety, including the nature of disciplinary activities taken in response. As of September 1, 2012, a principal must also tell a parent or guardian the supports that will be provided for the student in response to the harm caused by bullying.

Similar to the amendments regarding communication to the school board employee who reports a bullying matter, the principal's notice to a parent or guardian does not require disclosure of every detail. A principal must not disclose the name or other identifying information about a student who engaged in the bullying activity, except as necessary to identify the bullying activity, the harm caused, steps taken and supports provided in response. For example, a principal might disclose the activity of a particular student against another, but not provide his or her address or parent contact information.

Rounding out the process for giving notice to parents of an incident of bullying, the Education Act requires a principal to invite the parent or guardian of a student who has been harmed by bullying to "have a discussion" about the supports that will be provided. In this regard, the Education Act provides that a parent has a right to provide comments.

STUDENT ORGANIZATIONS

An aspect of the Accepting Schools Act, 2012, that received extensive debate and media attention is the amendment respecting student organizations. Under subsection 303.1 of the Education Act, school boards are required to support students who want to establish and lead activities and organizations that promote a safe and inclusive learning environment, acceptance and respect.

This includes activities and organizations that promote gender equity, anti-racism, acceptance and understanding of people with disabilities, awareness, understanding and respect for people of "all sexual orientations and gender identities." For clarity, the Education Act now requires a principal to permit a student to use the name "gay-straight alliance", or another name, in establishing a student organization.

SUMMARY

The amendments to the Education Act arising from the Accepting Schools Act, 2012, will change the way principals, supervisory officers, teachers and students approach and deal with bullying and cyber-bullying. They provide administrators with the legislative framework to establish policies to promote positive behaviour, and to identify and address inappropriate student behaviour. The particular issue of equity and inclusiveness continues to be at the forefront of the dialogue on bullying in Ontario schools. The new legislation is meant to create policies and practices that allow every student to feel accepted and supported.

As school boards develop and implement policies to address bullying, we will have a better understanding of the resources and supports for students that best address different bullying situations. Further developments on bullying and equity and inclusiveness in Ontario schools are expected in the coming school year, including expanded mental health services, professional development around bullying prevention, new programs to support students and revised Ministry policies.

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