Federal Cyberbullying Law Would Expand Police Powers

Bill C-13, introduced by Federal Justice Minister Peter MacKay on November 20, 2013, would make transmitting intimate images of a person without their knowledge or consent a crime.

Bill C-13, also known as the Protecting Canadians from Online Crime Act, was developed as a legislative response to the tragic deaths of certain Canadian  youth, such as Rehtaeh Parsons and Amanda Todd, who endured months of online bullying and harassment.

Should this new federal cyberbullying bill become law, distributing “intimate images” without consent would be punishable with up to five years in jail.

Bill C-13 would amend the Criminal Code to include a new offence of non- consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the internet. The bill also provides for the forfeiture of property used in the commission of the offence. In addition, the bill provides for a recognizance order to be issued to prevent the distribution of such images. Furthermore, the bill gives a court authority to restrict the use of a computer or the internet by a convicted offender.

In the bill, the term “intimate image” is defined, among other things, as a visual recording of a person made by any means including a photographic, film or video recording “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity.”

The proposed law would also allow a judge to issue a peace bond limiting access to computers to anyone believed to be a risk to commit a new offence. Computers and cell phones could be seized from an individual convicted of a cyberbullying offence.

In addition, the bill “streamlines” the process of obtaining warrants to intercept private communications, enables the tracking of individuals and transactions if a crime is suspected, and expands police wiretapping powers from telephone data to all types of telecommunications.

The bill goes well beyond cyberbullying to give police enhanced investigative tools to tackle a wide range of crimes, including terrorism, organized crime, theft of cable, fraud and hacking.

Despite the wide-ranging subject matter, Justice Minister MacKay maintains that the new legislation is not an omnibus bill, but is targeted and specific in nature.1

When asked specifically what organized crime or terrorism had to do with cyberbullying, MacKay said that it is a crime that “really knows no borders.”2

“Canadians rightfully expect to be protected from criminals, including those online and we’re taking action today to prevent cyberbullying”, MacKay told reporters in Ottawa. 3

“Our government will continue to work toward other updates of our criminal justice system . . . to ensure that we’re holding violent offenders accountable and championing the rights of victims, wherever and whenever we can.”4

Some legal experts support the increased attention given to online bullying and harassment, but they  say the new bill is too blunt an instrument, especially where the bully is under 18. They contend that Bill C-13 contains a narrow definition of cyberbullying, but does not address the underlying misogyny and homophobia that inspires so much of the online teasing. Jane Bailey, a law professor at the University of Ottawa, said “I would hate for the public to be misled into thinking that this is what will deal with cyberbullying, because I think it’s [only] a partial approach.”5

Professor Bailey stated that the problem with the bill is that it focuses on criminal and punitive measures instead of the attitudes and actions of cyberbullies themselves.6

Shaheen Shariff, a professor at McGill University, said that legislators need to have a better understanding of how people, and especially teenagers, view and use social media sites, such as Facebook.7

Professor Shariff said that not all sexually suggestive images are posted without consent or with malicious intent. She asserted that there needs to be an acknowledgement that sexually provocative language that can seem derogatory and hurtful is often used affectionately between friends, or in hopes in getting admiration from peers. Professor Shariff stated that legislators need to have a “better understanding of how young people are thinking these days.”

She said, “This has become simply part of their communication, especially when they’re teenagers.”8

Author

Eric M. Roher
416.367.6004
eroher@blg.com


1 A. Boutilier, “Cyberbullying law would expand police powers”, Toronto Star (November 21, 2013), at p.A3.
2 Ibid.
3 Ibid.
4 Ibid.
5 A. Mayer, “Cyberbullying Bill won’t stop online taunts, critics say” (November 27, 2013) at  http://www.cbc.ca/news/technology/cyberbullying-bil-won-t-stop-online-taunts-critics-say-1.2440785.
6 Ibid.
7 Ibid.
8 Ibid.

Human Rights Tribunal Rules That School Board Denied Student Meaningful Access To Education

In a decision released on August 21, 2013, the Human Rights Tribunal of Ontario (the “HRTO”) granted an application filed by the mother of an elementary school student who claimed her son experienced discrimination contrary to the Human Rights Code (the “Code”).

In R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (“R.B.”), the HRTO found that the Keewatin-Patricia District School Board (the “Board”)discriminated against R.B. because it denied him meaningful access to education.

Background

R.B. attended Riverview Elementary School for junior kindergarten and senior kindergarten, and Open Roads Public School for grades 1, 2 and 3. R.B.’s claim of discrimination arose out of his grade two  and three school years. R.B. has been diagnosed with behavioural issues and developmental delays.

Grade 2

At the end of R.B.’s grade 1 school year, his mother, S.F, was informed by the school’s Vice-Principal that a half-time Educational Assistant (“EA”) would be assigned to R.B. for his grade 2 school year because of school funding. R.B. had been receiving full-time EA support for the two previous school years. The Vice-Principal also told S.F. that she thought R.B. would do well with a 50% reduction in EA support because of the progress he made in grade 1.

S.F. attended an Identification Placement Review Committee (“IPRC”) meeting with counsel at the start of R.B.’s grade 2 year. S.F.’s counsel advocated for full-time direct EA support for R.B. based on medical assessments and the supports required to meet R.B.’s needs. Counsel further submitted that insufficient EA support in the past resulted in behavioural problems, inattentiveness and lack of progress. The IPRC did not address the level of EA support R.B. would be given and recommended that indirect support be provided by the Special Education Resource Teacher (“SERT”) or Literacy Teacher.

Later in September of 2011, S.F. communicated with the SERT and advocated once again for full-time EA support for R.B. When an Individual Education Plan (“IEP”) was developed for R.B. and S.F. provided comments on it, she was informed by the school that her expectations could not be accommodated because they were not reflective of the determinations of the IPRC. S.F. requested meetings with the Special Education Committee to discuss R.B.’s IEP.

In November 2011, the school had concerns about R.B’s behaviour and he was required to write apology notes to other students related to incidents of name-calling and violence. S.F. wrote the school and expressed concern that R.B. was being bullied by other students.

On November 18, 2011, the level of shared EA support was increased by 50 minutes per day and a specific EA was assigned to R.B.’s classroom. EA support was further increased by an additional 50 minutes in January 2012. These increases in support were not communicated to S.F. as they were intended to be temporary.

In December 2011, S.F. and her spouse attended a meeting with R.B.’s Principal and Vice-Principal. As a result of verbal threats made by S.F.’s spouse during the meeting, a trespass notice, applicable to both S.F. and her spouse, and a communication ban, applicable to S.F., were issued. All communications from this point forward had to go through the Superintendent.

S.F. wrote to the Board trustees in January 2012 and complained about the lack of input she had in the development of R.B.’s IEP, the defensive tone  of the school, the school’s failure to address R.B.’s medically documented need for EA assistance, and the school’s failure to address issues of bullying.

S.F. contacted the Superintendent when R.B. complained that his EA “grabbed his wrist so tight that it hurt” and that she refused to let go when he asked her to. Her email was forwarded to the school and she received no response. As a result of the school’s failure to respond, S.F. reported the incident to the police.

A second IEP was developed for R.B. in February 2012, providing R.B. with the same SERT and EA support as set out in the earlier IEP. He was also provided with services of a student counsellor once every two weeks, and speech/language pathologist  sessions.

In April 2012, a review IPRC meeting was held and S.F advocated for full-time EA support for R.B. as recommended in medical assessments. The IPRC identified R.B. as having multiple exceptionalities and placed him in a regular class with resource assistance. The only recommendation made was that the school and R.B.’s parents maintain regular communication.

R.B. was withdrawn from school in May 2012  for medical reasons related to anxiety and fear  of attending school. The medical note stated that the relationship between S.F. and the Board had broken down such that the school was no longer an environment conducive to R.B.’s learning.

Grade 3

At the beginning of the school year, the IPRC recommended full-time EA support for R.B. This was reflected in the IEP, which also provided for support from a SERT, and a speech/language pathologist. S.F. signed this IEP in October 2012, but commented on the lack of consultation with her in its preparation.

During this school year S.F. also complained to the Board about bullying, teasing and segregation of R.B. In October 2012, R.B. attended school wearing  a t-shirt that said “Stop the Bullying at Open Roads”.That same week, he attended school wearing a key fob attached to his belt that the school believed to be a recording device. A police investigation regarding the key fob was ongoing as of the date of the
HRTO’s decision.

R.B. was excluded from the school on October 22, 2012 for inappropriate behaviour including swearing, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing objects and being non- compliant. His return to school was conditional upon the completion of a psychological assessment and the Board’s confidence that R.B.’s return would not compromise the well-being of his classmates.

During his exclusion, R.B. was provided with instruction from an itinerant teacher in a public library for three hours per week.

A medical assessment of R.B. was conducted in November 2012 and recommendations were made setting out the steps required to transition R.B. back to school. The recommendations included full-time shared EA support, a behavioural management plan, a review of R.B.’s learning and academic skills, a single point of contact between S.F. and the Board (perhaps the Superintendent), regularly scheduled meetings, and regular contact between S.F. and the school teacher through R.B.’s journal. The Board agreed to implement these recommendations on the condition that S.F. would respect the communication restrictions and complete the ongoing human rights process.

The HRTO ordered R.B.’s transition back to school on February 19, 2013, on the terms recommended by the medical assessment, except the requirement that the human rights process be completed. A transition plan was subsequently developed by the Board and R.B. returned to school after an absence of approximately four months.

Issue

The HRTO was tasked with deciding if R.B. was discriminated against because of his disability in grades 2 and 3, which were the 2011/2012 and 2012/2013 school years.

Decision

A New Standard

In analyzing the Board’s actions under the Code, the HRTO applied a legal framework and test for discrimination set out by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (“Moore”). The Supreme Court
of Canada held that in order to demonstrate discrimination in an educational context, an  applicant must show that he or she has a protected ground enumerated in the Code, that he or she has experienced an adverse impact with respect to his or her education, and that the protected characteristic was a factor in the adverse impact.

The Supreme Court further held as follows:

…if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.

The Supreme Court also noted that the service to be accessed is education itself, and not special education. Rather, special education is the means by which those students in need get “meaningful access” to the general education services available to all students.

The HRTO decided that this framework applies to the Code in cases alleging discrimination in accessing education. This is the first HRTO case to apply and consider Moore in this context.

For a finding of discrimination to be made, an applicant must prove on a balance of probabilities that he or she has a disability, and that he or she experienced differential treatment linked to that disability. Once a prima facie case of discrimination is made out, defences are available to a respondent under sections 11 and 17 of the Code: that a bona fide requirement exists which resulted in the discrimination, or that the individual with a disability is incapable of performing or fulfilling essential requirements or duties. A respondent may also argue that it attempted to accommodate the needs of an applicant to the point of undue hardship.

The HRTO also commented on Schafer v. Toronto District School Board, 2010 HRTO 403, which held that in order to establish discrimination under the Code, there must be evidence demonstrating that the accommodations provided by a school were significantly inappropriate or inadequate. Before R.B., this standard was applied in human rights cases arising in the education context. In R.B., the HRTO established a presumption of satisfaction of this threshold where meaningful access to education has been denied. Specifically, it stated that “if a special needs student is denied meaningful access to education, it is implicit that the accommodations provided were either inappropriate or inadequate”.

The HRTO has essentially modified the test for discrimination in special education cases by establishing the standard of “meaningful access”. Once an applicant has demonstrated that he or she was denied “meaningful access” to education based on a protected ground, he or she will have satisfied the burden of demonstrating a prima facie case of discrimination. It is unclear from the decision what the threshold for meaningful access is, what meaningful access looks like, or how far schools have to go to provide it.

Application to the Case

When assessing the case and making a determination of whether the Board discriminated against R.B., the HRTO considered S.F.’s conduct and its potential impact on the Board’s ability to accommodate R.B. The HRTO concluded that there was no evidence to establish a connection between S.F.’s conduct and the accommodation process for R.B. While S.F.’s conduct made her relationship with the Board and school staff difficult, and was inappropriate at times, the Board could not demonstrate that her behaviour prevented the school from meeting R.B.’s educational needs. The HRTO did, however, comment on the likelihood that the Board viewed S.F.’s advocacy for R.B. in a negative light which may have influenced the Board’s treatment of R.B.

The HRTO ultimately found that R.B. was denied access to a meaningful education, that he was discriminated against as such, and that the Board had not established that it was unable to accommodate R.B. to the point of undue hardship. The following were factors relied upon by the HRTO in reaching this decision:

  • There was no discussion with S.F. prior to the Board’s reducing R.B.’s EA support by 50% and the reduction was not supported by documentary evidence suggesting that R.B. no longer needed full-time assistance. In fact, medical documentation suggested that R.B. required full- time EA support.
  • The school failed to undertake an objective assessment of the impact of reducing EA support on R.B. and it was incumbent on the school to do so.
  • It was clear that R.B. had behavioural issues and the school did not implement a behaviour management plan until right before R.B. was excluded from school, leaving no time to put the plan in place and determine its effectiveness.
  • R.B. was excluded from school without appropriate educational instruction, receiving lessons for only three hours a week in a public library. When R.B. was withdrawn from school, S.F. requested that school work be provided and marked after it was completed. Instead, the school sent a bag of books to R.B.’s home and asked that they be returned in September.
  • The communication ban denied S.F. the opportunity to meet with R.B.’s teachers and EAs to ensure his needs were met.

The HRTO concluded that S.F.’s relationship with the Board and the school, and not undue hardship, was the driving force behind the Board’s failure to accommodate R.B. and provide him with meaningful access to education.

Remedies Ordered

In addition to a monetary award of $35,000, the HRTO made the following orders:

  • R.B. would be returned to school in the 2013/2014 year with a full-time shared EA in the classroom, speech/language support for 30 minutes per week, and an appropriate behaviour management plan agreed to by S.F.;
  • S.F. would be fully entitled to participate in the IPRC review meeting for the school year and the development of R.B.’s IEP; and
  • The trespass and communication ban would be lifted.

The HRTO further ordered the Board to retain a third party facilitator/mediator to facilitate the reparation of S.F.’s relationship with the school and its staff.

Implications

Considering that this is the first HRTO decision to apply Moore it is unclear precisely what the impact is going to be on human rights cases in the education context going forward. However, it is quite possible that school boards will see an increase in human rights claims initiated on the basis that an individual student has been denied meaningful access to education because of a protected ground. The decision does not explain what meaningful access requires in practice, and as such, it is difficult to predict what steps may be necessary in any given case to satisfy the new standard for discrimination in education. School boards should continue to objectively assess the needs of individual students and communicate and work with parents of those students to appropriately support the needs of such students and minimize exposure to a potential human rights claim.

Author

Stephanie Young
416.367.6032
syoung@blg.com

Ontario Legislature Refers Bill 122, School Boards Collective Bargaining Act, 2013, To Committee For Review

On October 22, 2013, the Minister of Education, Liz Sandals, introduced Bill 122, School Boards Collective Bargaining Act, 2013. Bill 122 was debated on Second Reading for nine days between October 30, 2013 and December 3, 2013. Finally, on December 3, 2013, the Legislature voted to refer Bill 122 to the Standing Committee on the Legislative Assembly for review.

Bill 122, if passed, would provide a formal role for  the Government in bargaining collective agreements and would establish a two-tier bargaining framework for central and local matters. The current collective agreements expire on August 31, 2014, and the next round of bargaining is expected to occur in the spring of 2014.

Below are the main components of Bill 122.

Framework for Central and Local Bargaining

  • Bargaining “may” include central and local bargaining, but central bargaining is mandatory where a “central table” has been established.
  • Parties to central bargaining are the “employee bargaining agency” (i.e. the existing teachers’ union) and the “employer bargaining agency” (i.e. the existing trustees’ association).
  • An employer bargaining agency has exclusive authority for certain bargaining activities, including representing school boards at a central table, exercising rights and privileges of boards under the Labour Relations Act, 1995 (“LRA”), and binding boards to central terms in collective agreements.
  • Crown consent is required before an employer bargaining agency can agree to refer matters to arbitration, authorize lock outs, alter wages or agree to any other term that is a central term or related to central bargaining.

The Parties: Duties, Roles and Participation

  • Employer bargaining agencies have “duties”, including that they shall not act in a manner that is “arbitrary, discriminatory or in bad faith” in representing boards, and they must “cooperate in good faith with the Crown in preparing for and conducting central bargaining.” There are no parallel duties for the Crown or unions.
  • Employee bargaining agencies have a “role” under Bill 122 that is similar to their current role in local collective bargaining, except they can bind employees to central terms. They exercise bargaining rights and privileges under the LRA, and are required to perform duties under the LRA, including section 17 of the LRA which requires bargaining in good faith and to “make every reasonable effort to make a collective agreement.”
  • The Crown is entitled to “participate” in central bargaining. Such participation is open ended, and includes conciliation, mediation, or arbitration.

Obligations For Trustees’ Associations

  • As the employer bargaining agency, a trustees’ association is required to establish policies and procedures for the “effective exercise of its rights and privileges and performance of its duties” under Bill 122.
  • If a trustee association requires voting, the outcome of the vote must be decided by majority of school boards represented by the association, with votes weighted to “reasonably reflect” the size of the bargaining units in each school board.
  • The Minister can make a regulation that requires school boards to pay fees to a trustees’ association relating to central bargaining activities. The regulation may specify the manner of determining the amount of fees. It is not clear whether the costs of central bargaining will be fully funded.
  • The Minister can establish a committee that replaces a trustees’ association as an employer bargaining agency if, in the Minister’s opinion, the trustees’ association or council is “unable or unwilling to exercise its rights and privileged or perform its duties” under the Bill.

Central Tables and Scope of Central Bargaining

  • Central tables would be established for l’AEFO, l’Association des enseignantes et des enseignants franco-ontariens, ETFO, OECTA and OSSTF, although the Minister can combine central tables.
  • The Minister may reserve a matter for the central table if the Minister is of the opinion that there could be a “significant impact” on implementation of provincial education policy or expenditures for boards.
  • The parties at a central table and the Crown are required to meet within 15 days of notice, and shall bargain “in good faith and make every reasonable effort to agree upon the matters to be included within the scope of central bargaining at the central table.”
  • Disputes about what matters should be included within the scope of central bargaining can be decided by application to the Ontario Labour Relations Board (“OLRB”). The OLRB is required to consider:
    1. The extent to which the matter could result  in a significant impact on the implementation of provincial education policy.
    2. The extent to which the matter could result in a significant impact on expenditures for one or more school boards.
    3. Whether the matter raises common issues between the parties to the collective agreements that can more appropriately be addressed in central bargaining than in local bargaining.
    4. Such other factors as the Board considers relevant in the circumstances.

Denominational and Language Rights

  • Bill 122 specifically recognizes denominational and language rights guaranteed by section 93 of the Constitution Act, 1867 or by section 23 of the Canadian Charter of Rights and Freedoms, and would require that authority under the Bill be exercised in a manner consistent with those rights and privileges.
  • l’Association franco-ontarienne des conseils scolaires catholiques or the Ontario Catholic School Trustees’ Association may give notice to parties at a central table and the Crown  that a particular matter may prejudicially affect denominational rights.
  • If such matter is not excluded by agreement, the OLRB may decide the issue.
  • A similar process exists for linguistic rights.

Strikes, Lockouts and Votes

  • The definition of “strike” in section 35 of the Bill is identical to the definition in subsection 277.2(4) of the Education Act.
  • The normal procedures under the LRA for giving notice of strikes and lock-outs are modified by the Bill.
  • Employee bargaining agencies are required to give at least five days’ written notice of the strike to the employer bargaining agency at the central table and the Crown.
  • In turn, an employer bargaining agency may not authorize or require a school board to lock out employees without obtaining Crown consent and giving at least five days’ written notice of the lock-out.
  • The Bill contains direction on when a vote of employees can be taken as to the acceptance of rejection of an offer made by an employer bargaining agency with respect to central terms.
  • Final approval of the Crown on the proposed offer is required before an employer bargaining agency can request a vote.

Arbitration

  • Central bargaining issues are to be resolved by arbitration between the parties at a central table. The Crown is entitled to participate.
  • An employer bargaining agency requires prior consent of the Crown to settle an arbitration on a central term. Settlement, or an arbitration award, is binding on all parties to collective agreement including such central term.
  • The following factors must be considered at arbitration:
    1. The school boards’ ability to pay in light of their fiscal situation.
    2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
    3. The economic situation in Ontario.
    4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of work performed.
    5. The school boards’ ability to attract and retain qualified employees.

Collective Agreements

  • Collective agreements containing central and local terms cannot come into effect until central terms are ratified by the parties at the central table, and approved by the Crown, and local terms have been ratified by the parties at the local table.
  • The parties to a collective agreement are the school board and the bargaining agent (and not the Crown).
  • The central terms of collective agreement may be revised only by mutual consent of the parties at the central table and prior consent of the Crown

Analysis

Bill 122 has generated many questions that remain unanswered. For example, Bill 122 gives the Crown significant control of central bargaining, even though it is entitled to participate in, but is not a party to, collective agreements. Bill 122 is heavily prescriptive with respect to employer bargaining agency duties and decisions which require prior consent of the Crown, but Bill 122 is lacking in parallel duties for the Crown and unions. The provisions which permit the Crown to replace the employer bargaining agencies do not address how such members would be selected, or how each sector would be represented.

The type of matters that the Government will reserve for the central table is not clear. The Globe and Mail reports that “big monetary issues, such as salaries and benefits, will be negotiated centrally…”1 However, Bill 122 gives the Crown authority to reserve a matter for the central table in circumstances that go beyond expenditure, including where there could be a significant impact on provincial education policy.

It remains to be seen how issues will be resolved through the OLRB, particularly determinations about denominational rights, which have historically been decided by the Superior Court of Justice.

We will continue to monitor the progress of Bill 122, including the impact of any amendments proposed at the Committee stage.

Author

Kate Dearden
416.367.6228
kdearden@blg.com

 


1 C. Alphonso, “New Ontario bargaining legislation for teachers aims to stave off labour unrest”, The Globe and Mail (October 21, 2013) at http://www.theglobeandmail.com/news/national/education/new-ontario-bargaining-legislation-for-teachers-aims-to-stave-off-labour-unrest/article14974176/

 

Court of Appeal Rules No Judicial Review of A Private School’s Decision to Expel Student

On December 13, 2013, the Ontario Court of Appeal released its decision in Setia v. Appleby College.1 The Court unanimously held that the decision of an Oakville private school to expel one of its students was not subject to judicial review.

Background

Appleby College (“Appleby”) is a co-educational private school in Oakville, Ontario for students from grades seven to twelve. Gautam Setia was a grade twelve student at Appleby when he was found smoking marijuana in the school residence on the night before his final exam. Gautam admitted to smoking marijuana and was expelled the following day by Appleby’s Head of School. Gautam was prohibited from attending graduation ceremonies  and was also denied his Appleby College Diploma. He was, however, granted his Ontario Secondary School Diploma which permitted him to apply to university.

Unlike many private schools in Ontario which are incorporated under the Ontario Corporations Act.2 In 1911 Appleby was incorporated by a Special Act of the Ontario legislature (the “Appleby Act”). The Appleby Act granted Appleby’s Board of Directors the power to “confer upon the officers and persons employed in connection with its undertakings such powers of administration and discipline as it may think necessary”.3

When a student is admitted to Appleby, his/her parents sign a contract acknowledging that their child’s continued attendance at Appleby is dependent on the student’s compliance with the Appleby’s Code of Conduct. The Code of Conduct and Appleby’s school policies expressly prohibit smoking on school property and provide that expulsion may be the consequence of such actions.

Application for Judicial Review - Divisional Court

Following Gautam’s expulsion, Gautam and his parents brought an application for judicial review of the expulsion decision. The application was brought under s. 2(1)1 of the Judicial Review Procedure Act 4 (“JRPA”) for an order quashing the expulsion as an exercise of a statutory power of decision conferred by statute.

The Divisional Court was of the view that the expulsion decision was a matter concerning administration and discipline as referred to in the Appleby Act. As a result, the decision was an exercise of a statutory power for the purposes of the JRPA and therefore subject to judicial review. The majority of the Divisional Court also found that Appleby made its decision without providing Gautam and his parents  an adequate opportunity to be heard and, as a result, breached its duty of fairness. Based on these findings, the Divisional Court quashed the expulsion decision and referred the matter back to Appleby to determine the appropriate course of action. Appleby appealed.

On Appeal

At the Court of Appeal, Appleby contested the Divisional Court’s jurisdiction to quash the expulsion decision, arguing that the decision does not constitute an exercise of a statutory power of decision for the purposes of the JRPA. Furthermore, in order to engage the remedies afforded by judicial review, Appleby argued that the decision must come within the scope of public law, which requires a broader analysis than merely whether the decision can be sourced in legislation.

First, the Court of Appeal noted that the Divisional Court’s decision turned entirely on the conclusion that the expulsion decision was the exercise of a statutory power of decision. However, the Court of Appeal stated that although it is doubtful that the expulsion decision even qualifies as the exercise of a statutory power of decision, it is not enough that the impugned decision be sourced in a statute. The decision must be made in the exercise of a “statutory power of decision”.5 The Appleby Act authorized the Board of Directors to confer discipline powers as necessary. However, it was the Board and not the legislature that decided the power to expel was necessary. Therefore, the expulsion decision, arguably, effected the will of the Board more than the will of the legislature.6

Second, and more importantly, the Court noted that the jurisdiction to make an order for judicial review quashing the expulsion decision does not depend on whether the decision is the exercise of a statutory power of decision. Rather, the jurisdiction of the JRPA turns on whether the decision is of the kind that is reached by public law and therefore a decision to which a public law remedy can apply.7

Whether a particular decision is subject to public law and its remedies requires a careful consideration of the circumstances of the particular case.8 On the facts of the Setia case, the Court noted that four factors are particularly relevant.

First, the Court considered the nature and responsibilities of Appleby. Appleby’s incorporating statute, the Appleby Act, is a private statute not part of general law and therefore does not have a broad public effect. Appleby’s expulsion decision, though one of discipline and perhaps connected to Appleby’s educational role, was not regulated by the Education Act,9 but rather was governed by the contract between the parents and the school. Thus, neither Appleby’s statutory origin nor its educational mandate provided any significant public character to the expulsion decision.10

Secondly, Appleby has little interaction with other parts of government or statutory schemes. Other than a modest relationship with the Ministry of Education, Appleby can hardly be seen as being directed or significantly influenced by the government.11

Third, the expulsion decision concerned an individual student. The decision was not of a character with broad societal impact. As a result, the decision was more private than public in nature.

Lastly, in considering the extent to which the expulsion decision was shaped by private law rather than public law, the Court noted that although the decision was sourced in the Appleby Act, the criteria on which the decision was made was provided by the contract between Gautam’s parents and Appleby. As a result, the Court held that the remedy sought by Gautam and his parents should be in private law.

What This Decision Means For Ontario Private Schools

The ruling at the Ontario Court of Appeal upholds Gautam Setia’s 2010 expulsion from Appleby  and concluded that the enforcement of Appleby’s rule against smoking is “not of broader import to members of the public”. The Court ruled that the decision taken by Appleby was one of discipline of a student. The Court stated that while that decision may to some extent be connected to Appleby’s educational role, it is not regulated by the Education Act, but rather by the contract between the parents and the school.

The Setia decision sets a welcome precedent for all Ontario private schools enacted by statute. Disciplinary decisions, such as expulsions, will not be subjected to judicial review, but rather will be governed by the terms of the contract between the school and parents. As a corollary, private schools may be well served to ensure that enrollment contracts are well drafted and disciplinary decisions are carefully considered within the terms of the contract.

Author

Camille Dunbar
Student-at-Law
cdunbar@blg.com


1 2013 ONCA 753 [Setia].
2 RSO 1990, CHAPTER C 38.
3 Setia, supra at para 3.
4 RSO 1990, CHAPTER J 1.
5Setia, supra at para 26.
6 Setia, supra at para 27.
7 Setia, supra at para 32.
8 Setia, supra at para 33.
9 RSO 1990, CHAPTER E 2.
10 Setia, supra at para 37.
11 Setia, supra at para 38.

 

Medical Marijuana In Schools

It goes without saying that marijuana is an illegal drug, the use and/or possession of which attracts criminal sanctions under the Controlled Drugs and Substances Act,1 as well as the Criminal Code.2 In the education context, students who use and/or possess illegal drugs, such as marijuana, will be subject to disciplinary consequences under the Education Act, the Provincial Code of Conduct, and school policies.

Section 306 of the Education Act,3 lists possession of “illegal drugs” as one of the activities leading to possible suspension:

Activities leading to possible suspension

306. (1) A principal shall consider whether to suspend a pupil if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate:

2.  Possessing alcohol or illegal drugs.

Further to the authority under section 301 of the Education Act, the Government established a Code of Conduct governing the behaviour of all persons in schools. Under subsection 301(2) of the Education Act, one of the purposes of the Provincial Code of Conduct is “to discourage the use of … illegal drugs.”

In that regard, the Provincial Code of Conduct provides that members of the school community must not “be in possession of, or be under the influence of, or provide others with alcohol or illegal drugs.” Compliance with all applicable federal, provincial, and municipal laws is another requirement of the Provincial Code of Conduct.

A new issue may be increasingly arising in Canadian schools: how to deal with students who possess and use marijuana for medical purposes?

Medical Marijuana

In Canada, use and possession of marijuana for medical purposes has been permitted under regulations to the Controlled Drugs and Substances Act. If a person has lawfully obtained a license to use marijuana for medical purposes, they are no longer at risk for criminal sanctions. The question for schools is: whether a student, who would normally be subject to disciplinary consequences, is lawfully entitled to possess and use marijuana for medical purposes? If the answer is ‘yes’, the strict application of the Education Act, Provincial Code of Conduct and school policies may not be appropriate in every case.

The Government made a regulation under the Controlled Drugs and Substances Act dealing with “medical marijuana” called the Marihuana Medical Access Regulations (the “MMAR”).4  The MMAR will operate until March 31, 2014, when it will be repealed and replaced by a new regulation called the Marihuana for Medical Purposes Regulation (the “MMPR”)5.

The MMAR, and after March 31, 2014 the MMPR, allows patients to lawfully possess certain dried forms of medical marijuana. There is no age restriction on who may apply for a license under either regulation, and in that regard the regulations do not discriminate on the basis of age.

Currently, and until March 31, 2014, there are two lawful means of obtaining marijuana for medical  purposes:

  1. Under the MMAR, by application to Health Canada; or
  2. Under the MMPR, where a person submits a document signed by a doctor or licensed health care practitioner directly to a licensed marijuana producer.

The Application under the MMAR must contain:

  1. Applicant’s Declaration, the contents of  which are set out in section 5 of the MMAR and include detailed information about the applicant and the acceptance of medical risk;
  2. Medical Declaration from a medical practitioner, including detailed information about the reason marijuana has been prescribed as treatment; and
  3. Two copies of a current photograph of the applicant.

A person who has been authorized or licensed by application to Health Canada under the MMAR will receive, and must produce to a police officer on demand, an authorization containing the following information:

  1. The name, date of birth and gender of the holder of the authorization;
  2. The full address of the place where the holder ordinarily resides;
  3. The authorization number;
  4. The name of the medical practitioner who made the medical declaration under the MMAR;
  5. The maximum quantity of dried marijuana, in grams, that the holder may possess at any time;
  6. The date of issue; and
  7. The date of expiry.

A person who is authorized to use and possess marijuana for medical purposes must obtain the marijuana from a legal supplier, which at present includes Health Canada or a supplier who is licensed by Health Canada. Legal suppliers will provide dried marijuana in sealed packages.

If the patient has not obtained authorization to use medical marijuana by application to Health Canada, the only other lawful means of possessing and using marijuana for medical purposes is under the MPMR process. The patient would have to submit a medical document signed by a doctor and a registration form directly to a “licensed producer.”

A licensed producer must be licensed under section 25 of the MPMR. As of the date of publication, only three licensed producers are listed on Health Canada’s website: CanniMed Ltd., Mettrum Ltd. and The Peace Naturals Project Inc.6

Verification of a claim of lawful access to medical marijuana under the MPMR can be done by reviewing the packages of dried marijuana provided by a licensed provider to a patient.

Managing Medical Marijuana in Schools

A student’s claim to be authorized to use and possess marijuana for medical purposes should be thoroughly reviewed and verified by school authorities. Until a student proves otherwise, marijuana is an illegal drug that attracts criminal and disciplinary sanctions. A student who is lawfully entitled to use and possess marijuana should be able to confirm the following;

  • That the student has provided documentation confirming authorization from a physician and Health Canada to use marijuana for medical  purposes;
  • That the marijuana has been supplied to the student by a licensed provider, and is possessed only in a lawful form (i.e. dried marijuana);
  • That the marijuana is used only as directed by the physician and authorized by the license. It should be noted that Health Canada does not endorse smoking marijuana as a form of ingesting the drug for medical purposes.

The school will then be in a position to evaluate the information provided by the student, and determine whether the student lawfully uses and possesses marijuana. If so, the school should then consider whether the circumstances give rise to a duty to accommodate the student’s medical disability. An example of accommodation may be to waive the strict application of disciplinary consequences for possession of an illegal drug and/or impairment while on school property.

The school will have to consider, in the context of the Human Rights Code, whether the student’s disability and request to use and possess marijuana is reasonable accommodation, or whether parameters on the use and possession of marijuana are required to protect the interest of the school community. Each case should be evaluated on an individual basis.

Authors

Kate Dearden
416.367.6228
kdearden@blg.com

Alex Kitz
Student-at-Law
akitz@blg.com


1 S.C. 1996, c. 19
2 R.S.C., 1985, c. C-46
3 R.S.O. 1990, c. E.2
4 SOR/2001-227
5 SOR/2013-119
6http://www.hc-sc.gc.ca/dhp-mps/marihuana/info/list-eng.php

 

On-Site Health Clinics: Does A Private School Have Access To Its Students’ Health Records?

Schools and school administrators are very experienced in managing confidential information about their students. School administrators maintain a variety of records concerning their students, from academic performance to behavioural conduct. As more private schools begin to provide students with access to on- campus health clinics, the question becomes: how does the school manage the health records generated through the clinic? Are the health records treated in the same fashion as other school records? The answer is a resounding “no”. This article provides a brief overview of relevant privacy laws that pertain to the management of health information and how they apply to the disclosure of students’ personal health information.

The short answer is that personal health information is confidential. It is information that is generally only shared with other health care providers for the purpose of providing health care. A school administrator may have great interest in the information, particularly if the student about whom the information relates resides on-campus. However, great interest in the information does not lead to a legal right to access. A legal right to access exists when the student, the person about whom the information relates, or his or her decision maker (parent or guardian) has provided express consent for the information to be shared with the school administrator, teacher, coach or other school official.

In Ontario, personal health information is confidential and can only be disclosed if permitted by law or with the consent of the patient. This consent is presumed when it comes to disclosure to the health practitioners involved in providing a student’s care. However, this presumption does not automatically extend itself to the school that houses the health clinic. The law requires that a school and its administration receive express consent before accessing students’ health information for any reason. It is important for school administrators to understand that regulated health providers, including nurses and physicians, are mandated by their professional obligations to maintain the confidentiality of health information and to ensure it  is only disclosed in accordance with the law. Breach of confidentiality provisions could place the disclosing health practitioner’s professional license in jeopardy and subject the individual accessing the information to fines.

Consent is the key to ensuring appropriate information flow between an on-campus health clinic and a school. Of course, one of the primary reasons schools offer such services is to ensure students have timely access to health care and to ensure that the school community is equipped to manage the health needs of the student. It is likely that many parents would expect the school to know precisely what care has been provided to a child in the health clinic. The health issue could impact on the student’s school performance, behaviour or participation in school activities. As such, it is very important to establish consent procedures to properly manage student health information.

Many schools will already have a process in place for requesting background medical information from its students upon enrollment. This is common and expected practice. In our view, it could also become common practice to obtain written consent authorizing designated school officials to have access to a student’s health information from an on-campus health clinic. If the school explains in writing to parents and students what information it will be seeking, why the information will be sought, and how it will be used, then the school can obtain written consent authorizing it to receive students’ health information.

Parents and students mature enough to make their own health decisions ought to be asked to sign a written consent form confirming the consent for the health clinic to share information with school administrators. This form would need to set out what information is being collected about the student,  who will have access to that information, who gets to decide if additional people should have access to the information and how newly acquired information will be managed through the on-site health clinic. The form can be drafted such that it provides consent for the clinic to share information that comes to its attention over the course of the school year.

Given that it is very reasonable and appropriate for a school to insist that certain information be shared, if such consent were denied, the school would be able to decide whether it could still support that student’s enrollment in the activity for which the information  is being sought, or if necessary, the school itself. The school would want to talk to parents or students who refuse to consent to understand the rationale for the refusal and to ensure it explains to the parent and student the implications of the refusal.

If a school is seeking to obtain consent, it must also consider who to ask. For a student who is 16 years of age or older, consent should generally be obtained directly from him or her. Alternatively, for a student under 16, consent should generally be obtained from his or her parent or guardian. Both of these rules are subject to exception based on a student’s mental capacity to consent (i.e. the ability to understand and appreciate what it means to disclose that information). While not required by law, it is reasonable to ask both parents and students to sign the consent when the student is over age 12 and can generally understand the nature of the request. This assists in ensuring that both the parents and students understand the implications of signing the consent form.

Legally, it is within a school’s prerogative to request consent for unfettered access students’ health care records at an on-site clinic. However, prior to instituting such a policy, a school’s administration should consider the implications of making such a request of its students and parents. There may be a concern that students with serious challenges would avoid the health clinic and seek care elsewhere (or not at all) in order to keep that information away from the school. As such, it is important for a school to consider balancing its need for such information and the potential chilling effect that such disclosure may create for some students.

Authors

Cindy D. Clarke
416.367.6203
cclarke@blg.com

John M. McIntyre
Summer Student
jmcintyre@blg.com

 

Update: Access Copyright Takes Action Against York University And The Ministries Of Education

In April 2013, Access Copyright commenced legal proceedings against the provincial Ministries of Education (including Ontario school boards) and York University for refusing to pay tariff royalties. Access sued York University in the Federal Court, and filed an application with the Copyright Board for an interim tariff against the Ministries. In both proceedings, Access argues that the parties justified non-payment of royalties based on an incorrect interpretation of the Canadian copyright fair dealing exception.

These proceedings are important for educational institutions that are considering relying on the fair dealing exception (or another organization’s interpretation of the exception) as a substitute for their Access Copyright license or tariff.

Background on Access Copyright and Tariffs

Access Copyright (“Access”) is a collective society. It administers authors’ and publishers’ rights in literary and artistic works by licensing the works as a repertoire to others. The license can be an individual agreement, or a tariff certified by the Copyright Board. Access divides the proceeds from individual licenses and tariffs amongst its authors and publishers.

Tariffs are approved by the Copyright Board. Tariffs obligate certain parties (by referring to the party specifically or as a class, or by reason of the acts of the parties) to remit royalties to the corresponding collective. Before commencing legal proceedings in April 2013, Access had an expired public elementary and secondary school tariff for 2005 to 2009. Although expired, the tariff allowed Access to collect royalties from the Ministries because Access also had proposed tariffs pending before the Copyright Board for the years after 2009. Access also currently has an interim tariff for post-secondary educational institutions.

Changes to Copyright Law in 2012

In July 2012, the Supreme Court of Canada expanded the Canadian copyright fair dealing exception in the decision of Alberta (Education) v. Access Copyright.1 The fair dealing exception is a user’s right which provides an exception for acts which otherwise would amount to copyright infringement. To be a fair dealing, the allegedly infringing act must have been for an allowable purpose, and the dealing must have actually been fair. What is fair, however, depends on the facts of the case and an assessment of certain factors. The allowable purposes under the Copyright Act at the time of the decision included “research or private study”, “news reporting”, and “criticism or review”. In its decision, the majority of the Supreme Court of Canada gave a broad interpretation to the meaning of “research and private study.” They found that copies of a copyrighted work made by a teacher to distribute to students as part of class instruction are, unless made for an ulterior or commercial motive, for the purpose of the students’ “research or private study.”

Shortly after the Supreme Court’s decision, in November 2012, statutory changes to the Copyright Act (Canada) came into force further expanding the types of allowable purposes to include “education” and “parody or satire”.2

In response to the Supreme Court of Canada’s decision and the changes to the Copyright Act, the Council of Ministers of Educational Canada, Copyright Consortium published updated fair dealing guidelines in their 3rd edition of the Copyright Matters! publication. Copyright Matters! is distributed to school boards and educators across Canada to assist with copyright usage. The updated fair dealing guidelines purportedly describe the uses non-profit K-12 schools may make of copyrighted materials, which are permitted under the expanded fair dealing exception. The uses are essentially the same, however, as those specified in Access’ elementary and secondary school tariff.

In October 2012, the Ontario Public School Boards’ Association advised its members that, starting January 1, 2013, school boards would no longer operate under the 2005-2009 Access Copyright tariff. The decision to “opt-out” was, according to some reports, prompted by advice from the Council of Ministers of Education Canada, Copyright Consortium that most copying by K-12 teachers fell under the  fair dealing exception.

In December 2012, the Ministries’ notified Access that they would stop operating under the tariff and stop paying royalties beginning January 1, 2013. The Ministries gave no reasons for this change.

Proceedings Against The Ministries Of Education

In April 2013, Access filed an application for an interim tariff with the Copyright Board so it could sue the Ministries for unpaid royalties. Access believed that its expired tariff provided no right to sue the Ministries for unpaid royalties.

In its application, Access argued that the Ministries justified not paying royalties for one of two reasons: 1) either the Ministries had ceased copying the 200 million pages of copyright-protect works the Supreme Court of Canada (and the Copyright Board) had found to trigger a royalty payment;3 or 2) the Ministries considered those copies were no longer compensable since they fell within the recently expanded fair dealing exception. Access believed the latter was the true reason and pointed to the fair dealing guidelines in Copyright Matters! for support.

On May 29, 2013, the Copyright Board partially allowed Access’ interim tariff. In its decision, the Copyright Board agreed that the Ministries’ decision to do without the tariff may be grounded in part in the conclusions set out in Copyright Matters! The Copyright Board questioned, however, the correctness of the view expressed by the guidelines stating that they rely on an interpretation of Supreme Court of Canada decisions that has not yet been tested before a competent forum. In other words, no court or tribunal has found that the acts permitted by the guidelines amount to fair dealing. The Board explained that the Supreme Court of Canada decision in Alberta (Education) v. Access Copyright – the very case that expanded the fair dealing exception – pertained to only a small subset of copying by the Ministries. In fact, the Ministries had taken this very position (that the decision only affected a small portion of the Ministries’ total copyright usage) in oral submissions before the Supreme Court of Canada and during redetermination of the tariff before the Copyright Board.

Although the Board certified Access’ interim tariff, the Board disagreed that Access needed the interim tariff to sue the Ministries in court for failure to pay royalties. The Board appears to suggest that this remedy was already available to Access under its expired tariff. The Board’s reason for certifying the interim tariff was to account for statutory changes of November 2012 that expanded the fair dealing exception to include examination copies.4

Proceedings Against York University

Other educational institutions – including York University – also adopted fair dealing guidelines essentially identical to those found in Copyright Matters! York University, however, had notified Access on September 1, 2011 (more than 1 year prior to the Ministries) that it would stop operating under the tariff and stop paying the royalties.

Unlike with the Ministries, Access had an unexpired certified interim tariff for post-secondary educational institutions when it sued York University in April 2013. That interim tariff was certified by the Board in December 2010 in response to certain educational institutions (including York University) refusing to enter into individual licensing agreements with Access.5 Access’ lawsuit against York University seeks royalty payments based on its interim tariff (but does not claim copyright infringement).

In its statement of claim, Access alleges York University operated under the interim tariff up until August 31, 2011. After that date, York University did not pay any royalties but continued to copy works in Access’ repertoire. For support, Access points to copies made by five York University educators.

With respect to the issue of fair dealing, Access argues that York University’s fair dealing guidelines authorize and encourage educators and students to copy and deal with copyright in a manner that is not covered by the fair dealing exception. Access also argues that, even if the guidelines are correct, educators and students do not comply with, and York University does not enforce, the guidelines.

York University filed a statement of defence and counter claim in September, 2013. In its statement of defence, York University argues, among other things, that Access Copyright’s interim tariff is voluntary and that there is no basis under the Copyright Act to assert a claim for royalties allegedly due under an interim tariff, that York University’s fair dealing guidelines are consistent with those of the Association of Universities and Colleges of Canada (AUCC), and that York University already compensates copyright owners for use of their copyrighted works through other mechanisms.

The AUCC’s “fair dealings” guidelines are essentially the same as those found in Copyright Matters! The AUCC has committed up to $100,000 and has encouraged contributions from other Canadian institutions to fund York University’s lawsuit against Access Copyright.

Relevance to Educational Institutions

Educational institutions should exercise caution when drafting and adopting fair dealing guidelines. Using the guidelines of another organization, without assessing the institution’s individual copyright licensing situation and customizing the guidelines, could expose the educational institution to liability. The Supreme Court of Canada has clearly stated that what is fair depends on the facts of each case. Notwithstanding the risk that the other organization’s guidelines may not be generally supported at law, the guidelines may also not account for specific differences between organizations with respect to copyright usage, licensing, and individual factors affecting the scope of the fair dealing exception. A copyright assessment would also allow the educational institution to tailor the guidelines to its risk appetite and its processes for communicating and enforcing policies.

Author

Brandon Evenson
416.367.6384
bevenson@blg.com


1 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.

2 A summary of the changes to the fair dealings exception and their relevance to Access Copyright licenses are discussed in the author’s article “What you Need to Know About Access Copyright” in BLG’s Spring 2013 Education Law Newsletter.

3 Access and the Ministries of Education performed a volume study in 2005 and 2006 for certifying before the Copyright Board the now expired 2005-2009 tariff. The study determined what portion of the Ministries’ copying required a license from Access. The study originally found that 246 million pages triggered remuneration to Access. That number was later revised to 200 million pages as the other 46 million pages were found by the SCC in Alberta (Education) v. Access Copyright to be covered by the fair dealings exception.

4The Copyright Board found that 15 cents of the rate of $4.814 was attributable to those now non-compensable examination copies and that it would adjust the rate accordingly by way of an interim tariff.

5Access also has a proposed tariff covering post-secondary educational institutions before the Board.

Authors

Eric M. Roher 
ERoher@blg.com
416.367.6004

Stephanie Young  
SYoung@blg.com
416.367.6032

Kate Dearden 
KDearden@blg.com
416.367.6228

Cynthia (Cindy) Clarke 
CClarke@blg.com
416.367.6203

Brandon Evenson 
BEvenson@blg.com
416.367.6384