Canada: Public Schools Cannot Just "Kick Kids Out" – They Must Have A Full Expulsion Hearing

Last Updated: January 5 2018
Article by John Schuman

It may seem obvious, but School Principals cannot expel students without actually expelling them. In Ontario, allowing children access to a publicly funded education is a fundamental value. Children should not be deprived of that education, except in extreme circumstances. To deprive a child of the ability to attend school, the princip-lawyers/john-p-schuman/al and the Board must follow the rules and procedures for expelling students. Unfortunately, often School Principal's take short cuts, which are illegal, to kick kids out of school.

Expelling students is hard. There are lots of rules to follow and students have rights in the process. Unfortunately, principals often try to kick students out of school without actually expelling them. The law says that is not allowed.

To start, principals cannot kick a student out of school because the student is difficult to teach, has challenging or complicated special needs, has difficult parents or other family members, hangs out with the wrong people or is from a bad neighbourhood. Children can only be expelled if they commit very serious offences either while at school or in an activity that is closely linked to school. Those offences are set out in section 310 of the Education Act. They are as follows:

  1. Possessing a weapon, including possessing a firearm.
  2. Using a weapon to cause or to threaten bodily harm to another person.
  3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
  4. Committing sexual assault.
  5. Trafficking in weapons or in illegal drugs.
  6. Committing robbery.
  7. Giving alcohol to a minor.
  8. 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.
  9. Any activity for which a student might be suspended (such a threatening to cause bodily harm, vandalism, being under the influence of alcohol or drugs or bullying) 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.
  10. Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil

If the student's behaviour does not constitute one of the above offences or was not committed at school or can be linked to school, then neither the principal nor the School Board can expel the student. Further, before expelling a student, Ontario Regulation 474/07 requires that both a principal and school board consider whether the student's behaviour is the result of identified special needs – especially if the school has not been accommodating those needs properly, whether the student has been a victim of bullying or harassment and what effect the discipline will have on the student's education. These factors MAY make it impossible to expel a student.

The whole process of expelling a student can be very inconvenient. It should be impossible to kick a student out of school because his or her special needs are difficult to accommodate. There are lots of students who can really irritate teachers, but who knows the rules and don't do anything to get themselves expelled Sometimes a student is weird, or unpopular, or "different", or does not reflect well on the school. In all these cases, the expulsion process does to work because the school has no basis in law to expel a student.

In those circumstances, where a student's actions do not allow them to be expelled, principals have taken to just giving students a "Trespass Notice" and telling them that they are not allowed to come onto school grounds anymore. Sometimes, the principal also threatens to call the police if the student tries to come to school. The principal will say that section 265(1)(m) of the Education Act gives a principal the authority to take such action.

Indeed, section 265(1)(m) does give the principal of the school the authority to "refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal's judgment be detrimental to the physical or mental well-being of the pupils." The principal does not have to hold a hearing, or follow any set procedure before doing this. Unlike for suspensions, which can only be for 20 days, there is no time limit for how long a person can be denied admittance to the school. There are no other obligations imposed on the principal who refuses to admit someone, except to allow that person to appeal the principal's decision to the School Board. However, there is no timeline for the hearing of such an appeal.

Principals cannot use section 265(1)(m) against their students. Section 3(3) of Ontario Regulation 474/00 says that a principal cannot refuse to admit a student into a school if the student is enrolled as a pupil at that school. To be clear, it is illegal for a principal to refuse to admit a student into the school at which that student is enrolled. It is also a illegal for a principal to issue a "Trespass Notice" to a student in relation to that student's own school. A principal cannot use a "refusal to admit" or an "exclusion" as a substitute for an expulsion. Parents of students who have been "excluded" should challenge that decision immediately, which may mean an application to the Child and Family Services Review Board.

In its decision in DN v. TDSB, a case in which John Schuman was counsel for the parents and student, the Child and Family Services Review Board both commented on the illegality of a principal "excluding" a student from his or her own school, and gave parents and students recourse when a principal does that. In that case, the CFSRB decided that an "exclusion" of a student from his own school was really an expulsion and should be treated as such. For that reason, the CFSRB decided it could hear the student's appeal of the principal's decision as if it had been an expulsion. This is important because the CFSRB is not only an objective tribunal that is completely separate from the school board, but also, it hears appeals within 30 days while a School Board can hear an appeal of a "refusal to admit" whenever it feels like it. The CFSRB also commented that if a child is suspended for more than 20 days, the Board looses the right to expel a student.

If a principal uses section 265(1)(m) to prevent a student from attending school, that student and his parents should immediately file an appeal to the Child and Family Services Review Board. The CFRSRB is a formal tribunal, with its own procedural rules, and that conducts hearings that look very similar to a trial in court, with live witnesses and legal arguments. For that reason, parents may want to consult with an education lawyer prior to starting the appeal. It may be important to do that as principals and school boards can let "exclusions" go on for months, causing a student to lose his or her year, and perhaps fall out of he education system entirely, before the matters resolved.

If a school board cannot meet a child's special needs within a particular school, including the child's home school, the school board is allowed to move the child to a school that can better meet a student's needs. However, the Board must go through the IPRC process to identify the student's special needs and determine the appropriate school placement. Ontario Regulation 181/98 says parents are entitled to participate in that process... it cannot happen behind the parent's backs.

Other than that, a child can only be removed from or transferred out of a public school with the parent's consent (or with the child's consent when the child is old enough to give it.) Schools, school board's and principals cannot just tell a student that he or she cannot come to school anymore.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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