Posts tagged duty of fairness
One of the most important lessons in life is that how you do something can be just as, if not more, important than what you do. Using an illegitimate process, particularly if you are in a position of power, can negate any benefits of a decision, no matter how wise or noble that decision may be.
This lesson was brought home to a school principal earlier this month across the provincial border in the decision of the Honourable Mr. Justice Macleod of the Court of Queen’s Bench in J.O. v. Strathcona-Tweedsmuir School (CanLII). The facts of the case are nearly as interesting as the reasoning behind the outcome. J. was a student at a well-known independent school in the Calgary area with an excellent reputation (the judge characterized it as a “high-end private school”). She was a reasonably good student but was struggling with her studies in grade 11. Then her real troubles began.
The school’s annual Christmas formal dance for students in grades 10, 11 and 12 was planned for December 11, 2006 at the Calgary Golf and Country Club. J. and her 15 year-old boyfriend P. attended a pre-dance party at a student’s home. The parents of the hosting student arranged for a limousine to drive the students from the party to the dance, during which time J. had some drinks. Shortly after arriving at the dance, J. felt nauseous and thought she was going to be sick. She asked P. to help her and wanted him to join her in the ladies washroom, where students kept coming in and out. During that time, a woman at the club noticed that the door to the ladies washroom was closed. When we opened it, she claimed she saw J. and P. doing something inappropriate. Another member of their group – Mrs. Lougheed (a very prominent member of the community) – went straight to one of the teacher chaperones and told him a young couple was in the washroom “going at it”.
The next morning the school principal called Mrs. Lougheed, who described to the principal what she had seen in the washroom. The clear implication of her description was that the two students were having sex. The principal apologized for the incident and assured her he would severely discipline the students involved. The next day he spoke with J. He explained what had been reported about her. She asserted they her and P. definitely not having sex. The principal told her this was a serious issue; she should not to come school the next day and there would be a meeting with her parents. The principal never gave J. the name of the witness he spoke to.
The principal was clearly concerned about the reputation of the school and concluded that J. simply confirmed her and P. were engaged in inappropriate behavior, whether or not they were actually having sex. Two students approached the school guidance counsellor to explain what they had seen in support of J.’s version of events, but the principal (who was told of this testimony) never followed up with the students. Instead, the principal met with two other senior administrators within the school and concluded that J. should be expelled, but J.’s parents should be given the option of having her withdraw. The decision to expel J. was presented to J.’s parents as a done deal the next day at their meeting. J.’s parents were furious and the meeting unravelled. J. never returned to the school but no formal expulsion was issued.
The court in this case was confronted with the following central issue: whether the school, in investigating and responding to J.’s conduct, had a duty of fairness and, if so, whether it fulfilled that duty. Fundamentally, this is about abiding by a contract. J.’s parents had a contract with the school for J. to receive instruction. An implied term of that contract was to treat J. fairly and thus the court quickly confirmed the school owed J. a duty of fairness but focused primarily on what standard was imposed on the school by that duty.
The court maintained that the content of the duty of fairness depends on the circumstances of each case. Relevant factors include:
- the nature of the decision being made and the process followed in making it;
- the importance of the decision to the individual(s) affected; and
- the legitimate expectations of the person challenging the decision.
Several other factors were cited by the court, but even that list was determined to be non-exhaustive. Essentially, the underlying value is that the individual affected should have the opportunity to present their case fully and fairly, and decisions affecting their rights should be made using a fair, impartial and open process, given the context of the decision.
The court acknowledged that schools are not courtrooms and these sorts of decisions should not invite the same standard of due process. The court referred to an excerpt from Schools and Students: Legal Aspects of Administration (Toronto: Carswell, 1998) by W.H. Giles, which was quoted in Gianfrancesco v. Junior Academy Inc.:
It is evident to any intelligent teacher or principal that the strict application of Re Gault would be perversion. Of course, natural justice must apply in the schools, but to turn them into judicial circuses would encourage disrespect for both the schools and the courts… In fact, the schools would have to close, and close permanently, for there would be no time to teach and no point in teaching, since discipline delayed is discipline destroyed. In fact, federal courts often minimize the adherence to procedural rights of people charged with misconduct.
In any event, the court utimately sided with J. and found that the school failed to satisfy its duty of fairness. There were several factors that weighed heavily on the court’s decision:
- The school had violated section 21 of the Private School Regulation (CanLII), requiring the school to have written rules dealing with suspension or expulsion of students. As well, the regulation specifically required the school to adhere to principles of fundamental justice.
- J.’s education was clearly of considerable importance to her and her parents, and they had a legitimate expectation that J.’s conduct at the dance would be dealt with seriously.
- No one at the school took the time to consider J.’s side of the story. She was not given notice of the case against her and had no opportunity to respond to it.
- The person that told the principal J. and P. were “going at it” did not testify at trial and nothing the school’s other witnesses said contradicted J.’s assertion that her and P. were definitely not having sex.
Macleod J. issued a strong condemnation of the school’s decision, saying it smacked of “a rush to judgment”, was a “miscarriage of justice” and “no fair-minded person who had heard the evidence I heard could have concluded that expulsion was fair”. The school’s administrators appeared to be motivated to protect the school’s reputation and sacrificed J. in the process:
[Schools] have considerable latitude in disciplining students. However, 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. Even serious infractions of [the school's] rules did not necessarily give rise to expulsion. Another student who was caught drinking at the same dance was stripped of his prefecture and placed on probation, but was not expelled. Had the school made a more thorough investigation and taken into consideration the accounts of all witnesses, it is extremely unlikely J. would have been expelled… [The] school may have the right to be wrong, but it must be fair.
Expulsion appeals have become increasingly in common in other Canadian jurisdictions, and legislatures have moved to direct those appeals to administrative bodies to avoid a direct recourse of parents and students to the regular court system. For example, with respect to public schools, the student discipline provisions of the Ontario Education Act and regulations were amended in 2008 to include additional factors a school board must consider when enforcing an expulsion, appeals of which will be heard by the Child and Family Services Review Board (CFSRB). These amendments provide school boards with the authority to consider the student’s conduct outside of school. In J.G. v. Kawartha Pine Ridge District School Board (CanLII), the CFSRB quashed a school board’s decision to expel a student for smoking marijuana off school premises and sharing it with his friends. The school board held a hearing on the matter and accepted the recommendation of the school principal that the student be expelled. The student was informed of the decision without any reasons for the decision. The CFSRB’s ruling against the school board was upheld by the Ontario Divisional Court.
In British Columbia, a school board’s power to expel a student is set out in section 85(3) (BCLaws) of the School Act:
Despite any other provision of this Act, a board may refuse to offer an educational program to a student 16 years of age or older if that student
(a) has refused to comply with the code of conduct, other rules and policies referred to in section 6, or
(b) has failed to apply himself or herself to his or her studies.
Parents and students who want to appeal an expulsion decision made by a board employee can appeal to the board; if they are unsatisfied, they can appeal further to the Superintendent of Achievement under section 11.1 (BCLaws). This latter appeal process is maintained by the Student Appeals Branch of the Ministry of Education. The Appeals Regulation (Ministry of Education) clearly sets out under section 2(2)(a) that an expulsion is an eligible ground for this secondary appeal. Here is a pamphlet about the Student Appeals Branch with useful information.
The Independent School Act does not appear to include similar provisions or regulations with respect to independent schools, but the Federation of Independent School Associations has put out a helpful guide for schools, parents and students with respect to procedural fairness, which has been posted on the website of the Ministry of Education.
An expulsion may have serious consequences on a student. Principals and school board should only reach such a decision cautiously and with considerable justification. Hearsay should not be relied on. There should be a good faith opportunity for the student to be heard. Students subject to an expulsion or suspension should insist upon procedural fairness within the sort of reasonable limits discussed above.