Private School Expulsion as a Victim of Bullying

November 5th, 2014 by

The Education Act has provisions in place to address and monitor wrongful behaviour that can eventually lead to expulsion in the Ontario public and Catholic school system. The expulsion procedure is strongly regulated, with various hearings and notices mandatory to ensure that everyone has the proper chance to be heard and that the proper decisions are made.

In private schools, however, the discipline procedures are not fully regulated by the Education Act. Private schools have their own suspension and expulsion policies in place. Often, there will be provisions in the contract for services that parents sign, allowing the school to “terminate the contract” between the parents and the school at the school’s discretion. So, when a parent receives a notice that his or her child is no longer welcome at the school, there is little they can do.

This often happens in the context of bullying, surprisingly with the victim of the bullying getting expelled. If your child is being bullied, the school might get irritated by you bringing this to their attention and by attempting to resolve matters for your child. It is not unheard of that the school will simply call you and let you know your child is no longer welcome at the school after that day. The school further victimizes the child and gives the message that bullying is condoned. With bullying unfortunately coming to the forefront of the news more frequently,

As this Toronto Star article outlines, it is not unheard of that a parent will receive a phone call from the school that his or her child is no longer welcome there after that day. This can be a traumatic experience for any child, and very difficult for any parent who has to explain the reason they will not be returning.

Expulsion for parents’ behaviour

Sometimes, a child may even be expelled for the behaviour of his or her parents. For example, the school might claim that the parents are disrupting the school environment.

Since a contract might say the school can terminate the contract at its discretion for a list of reasons including the parents’ behaviour, one might think this is allowed. However, in Kaufman v Leo Baeck Day School, Justice Pitt explains that a school cannot expel a child for the behaviour of his or her parents. The court says that upholding such an expulsion has “a severe negative impact on the child’s perception of justice and fairness at such an early stage of his life,” (see paragraph 18).

The school does, at the very least, owe its students a duty of procedural fairness, giving the student and his or her parents a chance to be heard and to appeal any disciplinary decision. As explained by Justice Macdonald in Gianfresco v Junior Academy Inc, [2001] OJ No 2730, “the drastic punishment of expulsion can only be imposed after adequate notice is provided to the parents, who should be given an opportunity to be heard.” Unfortunately, the procedural fairness is not always observed.

So what can you as a parent do?

It is easy for a parent to feel helpless in this situation, but you do have legal remedies and should consult with a lawyer.

Legal remedies:

Depending on the emotional harm to the student and the financial damages, there may be a number of claims against the school.

  • Breach of fiduciary duty:

Parents trust that when their child goes to school, he or she will be appropriately taken care of. Teachers owe a duty of care to their students. They must provide a learning environment free of harassment and/or bullying to the students and must appropriately address a poisoned learning environment.

  • Breach of contract:

There is usually an express and implied contract between the parents, the student, and the school. The contract requires that in exchange for the tuition payment made by the parents, the school will provide a safe, nurturing, and respectful environment in which the school will provide instruction to the student for the duration of the school year. An implicit term of the contract is that the student will not be forced to leave the school barring any conduct warranting expulsion, and then only after the student and the student’s family are accorded a right to be heard and to challenge the expulsion.

  • Negligence:

There are many claims of negligence that one can imagine in this situation, and it would depend on the particulars. Some main ways in which the school might be negligent is:

  • Failing to take reasonable care to ensure that the student would be safe while attending the school;
  • Permitting the continuance of a school environment that is not harassment and bullying free;
  • Failing to take reasonable steps to ensure that the school is supervised and managed in a reasonable and safe manner;
  • Failing to have a program in place to train staff in managing situations of harassment and bullying; and
  • Failing to observe and respond to the bullying.
  • Intentional infliction of mental suffering:

As professionals educated and/or experienced in the education of children, and having been made aware of the effects of bullying on young children, the school staff should know that their failure to protect the students from bullying will cause emotional and psychological harm to the student. Knowing this, the school staff should take positive action to prevent these negative effects, and failure to do so is inflicting mental suffering on the student.

It is best to consult with an education lawyer as the potential claims and the potential outcomes will be fact-specific. For any questions related to education law, bullying, or wrongful expulsion, please contact the Toronto education lawyer Sarah Falzon at 416-446-3320.


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