K.B. et al. v. Toronto District School Board et al., (2008) 234 O.A.C. 141 (DC)

• Judge: Lane, Hoilett and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: Thursday January 31, 2008
• Jurisdiction: Ontario
• Citations: (2008), 234 O.A.C. 141 (DC)

K.B. v. Toronto School Bd. (2008), 234 O.A.C. 141 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. FE.081

K.B. (by his litigation guardian R.N.) and T.M. (by his litigation guardian P.A.) (applicants) v. Toronto District School Board and Louie Papathanasakis, Principal, Emery Collegiate Institute (respondents)

(55/06)

Indexed As: K.B. et al. v. Toronto District School Board et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lane, Hoilett and Swinton, JJ.

January 31, 2008.

Summary:

The applicants were students at Emery Collegiate. Two incidents occurred with another student, who alleged that he had been assaulted by the applicants and others. Police laid criminal charges against the applicants. Emery's principal suspended the applicants and decided that the safety of individuals at Emery required that the applicants be transferred to another school. The principal issued notices denying the applicants access to Emery. The applicants applied for judicial review to quash the decision.

The Ontario Divisional Court dismissed the application.

Editor's note: for a related decision, see 211 O.A.C. 75.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicants were students at Emery Collegiate - Another student alleged that he had been assaulted by the applicants - Police laid criminal charges against the applicants - Emery's principal, on the school board's behalf, reviewed a security camera videotape and spoke to witnesses - He invited the applicants to give their side of the story, but their lawyers advised them not to - The principal suspended the applicants and decided that the safety of individuals at Emery required that the applicants be transferred to another school - He issued notices denying the applicants access to Emery - The applicants applied for judicial review, asserting, inter alia, that the principal breached the duty of procedural fairness - The Ontario Divisional Court dismissed the application - The principal conducted an investigation and invited the applicants to speak - That they chose not to did not undermine the fairness of the procedure - The failure to provide the applicants with the witnesses' statements was not a denial of procedural fairness - The applicants knew the allegations against them - The principal provided notice of the transfer and adequate reasons for it - The notices denying access set out the reasons for the denial - There had been no breach of the duty of procedural fairness - See paragraphs 55 to 61.

Administrative Law - Topic 2447

Natural justice - Procedure - Notice - Notice of sanctions to be imposed - [See Administrative Law - Topic 2266].

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See Administrative Law - Topic 2266].

Administrative Law - Topic 2496

Natural justice - Procedure - At hearing - Particulars of allegations - [See Administrative Law - Topic 2266].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - Two Emery Collegiate students were alleged to have assaulted another student - The principal suspended the students and decided that the safety of individuals at Emery required that they be transferred to another school - The principal, on the school board's behalf, issued notices denying the students access to Emery - The students applied for judicial review, asserting, inter alia, that the principal lacked jurisdiction to deny them access to Emery and to transfer them to another school - At issue was the standard of review - The Ontario Divisional Court indicated that the standard of review on the question of the principal's jurisdiction, which required interpretation of the legislation, was correctness - If the principal had jurisdiction, the decision to deny access or to transfer was reviewable on a standard of patent unreasonableness because it was heavily fact-driven and involved the principal's expertise - See paragraphs 32 to 35.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - The applicants were students at Emery Collegiate - Another student alleged that he had been assaulted by the applicants - Police laid criminal charges against the applicants - Emery's principal suspended the applicants and decided that the safety of individuals at Emery required that the applicants be transferred to another school - He issued notices denying the applicants access to Emery - The applicants applied for judicial review, asserting, inter alia, that the decision and process infringed their rights under s. 7 of the Charter - The Ontario Divisional Court dismissed the application - The court rejected the argument that choice of a particular school was protected by the right to liberty - It was settled law in Ontario that no pupil had a right to attend a particular school - There had been no interference with an important and fundamental life choice so as to constitute a denial of liberty - Further, the applicants had failed to show that their right to security of the person had been infringed - The only evidence to support this claim was an affidavit alleging that one of the applicants was left distraught by the transfer - Those statements, without substantiation of the extent and nature of the impact on the applicant's psychological integrity, were not sufficient to prove an infringement of s. 7 - See paragraphs 62 to 69.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The applicants were African Canadian male students at Emery Collegiate - Another student alleged that he had been assaulted by the applicants - Police laid criminal charges against the applicants - Emery's principal suspended the applicants and decided that the safety of individuals at Emery required that the applicants be transferred to another school - The principal issued notices denying the applicants access to Emery - The applicants applied for judicial review, asserting, inter alia, that the decision and process infringed their rights under s. 15 of the Charter - The applicants relied on a report prepared by a human rights consultant regarding a disproportionate impact of the Safe Schools Act and school board policies on racial minority students - The Ontario Divisional Court dismissed the application - The evidence necessary for a proper s. 15 analysis was lacking - There was no evidence of a comparator group nor any evidence showing that the transfer and denial of access were discriminatory - Further, the report relied on was not proper evidence, given that it was prepared by a consultant based on anecdotal information and perceptions - See paragraphs 70 to 75.

Civil Rights - Topic 1206.5

Security of the person - General - Right to psychological integrity (incl. dignity, reputation, etc.) - [See Civil Rights - Topic 726].

Civil Rights - Topic 1208.3

Security of the person - General - Education - [See Civil Rights - Topic 726].

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See Civil Rights - Topic 907].

Education - Topic 710

Education authorities - School commissions or boards - General - Protection of students - The applicants were students at Emery Collegiate - Another student alleged that he had been assaulted by the applicants - Police laid criminal charges against the applicants - Emery's principal, on the school board's behalf, suspended the applicants and decided that the safety of individuals at Emery required that the applicants be transferred to another school - He issued notices denying the applicants access to Emery - The applicants applied for judicial review, asserting, inter alia, that the principal lacked jurisdiction to deny the applicants access to Emery and to transfer them - The Ontario Divisional Court dismissed the application - Under s. 305(4) of the Education Act, the principal had the power to order a person to leave school premises if that person was prohibited by regulation from being there - Under s. 3(1) of the Access to School Premises Regulations, the principal had the power to refuse access or to require a person to leave if he or she believed that the person's presence threatened the safety or well-being of a person on the school premises - Here, the principal acted under the combined effect of ss. 305(4) and 3(1) - The principal and the school board had the inherent authority to transfer a student who had been denied access to a school for safety reasons - Further, nothing in the record challenged the bona fides of the principal's decision or suggested that he was intentionally trying to deprive the applicants of their procedural rights - See paragraphs 37 to 50.

Education - Topic 744

Education authorities - School commissions or boards - Powers respecting students - Place of instruction - [See Education - Topic 710].

Education - Topic 750

Education authorities - School commissions or boards - Powers respecting students - Suspensions - [See Education - Topic 710].

Education - Topic 823

Education authorities - School commissions or boards - Decisions - Duty to act in the best interests of students - The applicants were students at Emery Collegiate - Another student alleged that he had been assaulted by the applicants - Police laid criminal charges against the applicants - Emery's principal suspended the applicants and decided that the safety of individuals at Emery required that the applicants be transferred to another school - He issued notices under s. 3(1) of the Access to School Premises Regulations denying the applicants access to Emery - The applicants applied for judicial review, asserting, inter alia, that the principal failed to give primary consideration to the applicants' best interests - The Ontario Divisional Court dismissed the application - The language of s. 3(1) was clear - The only factor to be considered in deciding whether to deny a person access to school premises was whether the person's presence was detrimental to the safety or well-being of a person on the premises - The principal had to consider the best interests of all of the students, not just those of the applicants - That was what he did - See paragraphs 51 to 54.

Education - Topic 827

Education authorities - School commissions or boards - Decisions - Judicial review (incl. standard of review) - [See Administrative Law - Topic 3202].

Education - Topic 5281

Students - Students' rights - General - [See Civil Rights - Topic 726 and Civil Rights - Topic 907].

Education - Topic 5288

Students - Students' rights - To select secondary school - [See Civil Rights - Topic 726].

Education - Topic 6470

Teachers (incl. principals and non-teaching professional employees) - Duties - Principals - General - [See Administrative Law - Topic 2266, Education - Topic 710 and Education - Topic 823].

Cases Noticed:

Walker Youth Homes Inc. v. Board of Education of Ottawa-Carleton, [2004] O.T.C. 473 (Sup. Ct.), refd to. [para. 35].

S.J. v. Toronto Catholic School Board, [2006] O.J. No. 2378 (Div. Ct.), refd to. [para. 35].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125; 166 D.L.R.(4th) 261, refd to. [para. 35].

Gismondi v. Human Rights Commission (Ont.) et al. (2003), 169 O.A.C. 62 (Div. Ct.), refd to. [para. 36].

Bonnah v. Board of Education of Ottawa-Carleton (2003), 170 O.A.C. 248; 64 O.R.(3d) 454 (C.A.), refd to. [para. 43].

Crawford et al. v. Board of Education of Ottawa, [1971] 2 O.R. 179; 17 D.L.R.(3d) 271 (C.A.), refd to. [para. 49].

Robertson v. Board of Education of Niagara South (1973), 1 O.R.(2d) 548 (Div. Ct.), refd to. [para. 49].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 52].

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650; 323 N.R. 1; 241 D.L.R.(4th) 83; 2004 SCC 48, refd to. [para. 55].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 63].

Gosselin v. Québec (Procureur général) (2002), 298 N.R. 1; 221 D.L.R.(4th) 257 (S.C.C.), refd to. [para. 72].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 72].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 73].

Statutes Noticed:

United Nations Convention on the Rights of the Child (1989), art. 3 [para. 51].

Authors and Works Noticed:

Ontario, Human Rights Consultant Report, The Ontario Safe Schools Act: School Discipline and Discrimination (July 8, 2003), p. 3 [para. 71].

Counsel:

Lora M. Patton, for the applicant, K.B.;

Selwyn Pieters, for the applicant, T.M.;

Thomas McRae and Jennifer Trépanier, for the respondents;

Martha MacKinnon, for the intervenor, Canadian Foundation for Children, Youth and the Law.

This application was heard at Toronto, Ontario, on November 27 and 28, 2007, by Lane, Hoilett and Swinton, JJ., of the Ontario Divisional Court. Swinton, J., released the following reasons for judgment for the court on January 31, 2008.