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Education and Public Law

Shibley Righton LLP is recognized as one of the leading firms in the Province of Ontario representing school boards and educator organizations in respect of all legal matters that affect them.

For over 25 years, our Education and Public Law Group has been providing comprehensive, effective and timely legal services to our educator clients in all aspects of education law and public law, including general civil and commercial litigation, employment and labour relations, contract negotiations, human rights, special education, administrative law, judicial review and appeals, freedom of information and privacy law, conflict of interest law, health law, and constitutional law, as well as those aspect of corporate-commercial law, real estate law, construction law, and municipal law that confront today's educators.

Led by Thomas McRae and Sheila MacKinnon in our Toronto office, and Brian P. Nolan and Sheila MacKinnon in our Windsor office, the members of the Education and Public Law Group have acted for school boards throughout Ontario, both public and Catholic, English- and French-language, as well as the Ontario Ministry of Education, various governmental commissions, boards and agencies, committees of the Legislature of Ontario, and other professional organizations.

In servicing its education-related clients, the Education and Public Law Group provides general counsel and advice on a full range of challenging issues, including:

  • governance and amalgamation;
  • funding and financing;
  • legal liabilities of school boards and
    their trustees, officers, and employees;
  • school board powers and duties;
  • policies and procedures;
  • labour relations, including collective
    agreement bargaining and administration;
  • special education;
  • human rights and discrimination;
  • constitutional issues;
  • employment issues;
  • board of arbitration and board of reference
    hearings;
  • teacher discipline;
  • sexual misconduct;
  • student attendance rights;
  • student discipline, expulsion and suspension;
  • school violence;
  • privacy and freedom of information;
  • conflict of interest;
  • municipal and planning law;
  • transfer of assets and liabilities under
    several legislative regimes;
  • trustee representation and elections;
    and,
  • school councils

To provide a complete range of service to its clients, the Education and Public Law Group draws upon the resources of other practice groups, including the Business Law Group and the Real Estate Group.

The Education and Public Law Group publishes monthly its Education Law eBulletin, a newsletter which is intended to assist educators in keeping apprised of the law and important legal developments. To subscribe to the Education Law eBulletin or to browse through our back issues, please click here.

Members of the Education and Public Law Group are regularly engaged to speak and present papers at in-service seminars and provincial and national conferences. Their articles have been published in a variety of journals, magazines and national publications. They are responsible for the development and maintenance of the "Shibley Righton Education Law Netletter", published on-line by QuickLaw, perhaps the pre-eminent legal publisher of computerized, on-line legal reference materials, as well as the curriculum design and classroom instruction of the Education Law course at the University of Windsor's Faculty of Law, the first education law course ever to be offered at an Ontario law school.

The Education and Public Law Group has the capacity to provide legal services to its clients in both English and French.

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Publications

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2018-10-01
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2018-09-01
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Someone is parking a car with advertising/company name on it overnight in their driveway, of which they have exclusive use, contrary to the corporation’s rule. Can the corporation enforce parking rules in spaces that are not owned by the unit owner, but of which they have exclusive use? And could there be an exemption from such a rule on the basis that it would violate human rights?

Are exclusive-use rules enforceable?

The simple answer is yes, the corporation can enforce parking rules; and whether the area is exclusive use or a unit is immaterial.

Under Section 58 of the Condominium Act, the board may make, amend or repeal rules, so long as the rules are related to either:

  • promoting the safety, security or welfare of the owners and of the property or assets of the corporation; or
  • aimed at preventing unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation.

The corporation can therefore make and enforce rules relating to every area of the condo building, including suites, balconies, common areas, and parking units. To be enforceable, the rules must be reasonable and consistent with the Act, the declaration and the bylaws of the corporation.

Every condo corporation has rules governing conduct on the common elements, including exclusive-use common elements. Rules respecting preserving the aesthetics of the corporation are also commonplace, on the basis that an unpleasant or non-attractive environment interferes with an owner’s use and enjoyment of the common elements, the units or the assets of the corporation. For example, condo corporations often have rules that prohibit the display of any kind of signage in units or the common elements or that require all window coverings be white or off-white to ensure uniform aesthetics.

A rule prohibiting signs or advertising on any vehicle parked on the common elements serves to protect the overall exterior and interior appearance of the condo property. A rule in a condo prohibiting the parking of commercial vehicles was challenged and upheld by the courts on the basis that parking a commercial vehicle would interfere with the use and enjoyment of other units and/or their occupants because the parking of such vehicles would be unsightly and thus interfere with the use and enjoyment of the common elements, common to units in the complex. It should also be noted that some municipalities have bylaws placing restrictions on the parking of commercial vehicles (which may or may not include vehicles with signage) on residential properties. One example is a municipality that prohibits commercial vehicles from being parked on any residential lot unless parked entirely within a wholly enclosed building.

Is a human rights exemption possible?

Human rights cases are context-specific and so generalizations about possible exemptions should be avoided.

To invoke the Human Rights Code, the discrimination must be related to one or more of the following prohibited grounds: race, colour, ancestry, creed (religion), place of origin, ethnic origin, citizenship, sex (including pregnancy), gender identity, gender expression, sexual orientation, age, marital status, family status, and disability or the receipt of public assistance (this last ground applies to housing only).

A rule prohibiting displaying signage on the corporation property in and of itself would not implicate any prohibited ground. There is no Code-related right to free speech or to earn a living, unless these are restricted because of race, gender identity, or some other prohibited ground of discrimination. The freedom of expression and other freedoms are found in the Canadian Charter of Rights and Freedoms, which applies to government action only, and not to condos.

There may be particular situations in which a resident requires accommodation with respect to the rule because of either family status or on some other protected basis (e.g., a resident who must leave the company vehicle overnight in the parking space because he or she must drop off children to school early in the morning and go straight to work, or risk the employer’s corrective action). However, there are a number fact-specific solutions to address these issues, such as masking the signage, or making arrangements to swap out the company vehicle nearby and off site. A condo’s accommodation obligations are almost always determined in a fact-specific, case-by-case manner.

Deborah Howden and Warren Kleiner are lawyers and partners in Shibley Righton LLP’s Condominium Law Group. They are condo law specialists who regularly advise condo corporations all across Ontario.

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2018-08-15
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2018-06-09
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2018-05-08
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2018-04-07
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2018-03-06
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2018-02-05
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2018-01-04
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Those considering running for the office of school trustee in 2018 should understand the mandate of a school board, the role of an individual trustee and the board of trustees as a whole, says education and employment lawyer Sheila MacKinnon.

"People often look to join the school board with a single issue in mind, and that’s not helpful,” MacKinnon tells AdvocateDaily.com.

“They don’t appreciate that one has to act in the best interest of all students and stakeholders of the board, not just your constituents,” she says.

MacKinnon, managing partner of Shibley Righton LLP’s Windsor office, has given presentations on board of governance issues and says new trustees should be wary of making promises to voters that would require a resolution of the board in order to carry it out.

“A trustee acts as part of a collective on the board as mandated under the Education Act. This role is different than an MPP; there is no party whip.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the complete article.

Date_Published
2017-12-01
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Employers offering to augment parental leave benefits should ensure their policies are up-to-date now that the federal government has announced an extended leave option of 18 months, says Windsor employment and education lawyer Jessica Koper.

If companies or organizations have policies stating they will top-up employment insurance benefits during parental leave for employees, they should determine whether those plans would continue for the entire period if parents choose to take the time off, says Koper, associate with Shibley Righton LLP.

“If they are caught in a policy they haven’t reviewed, it could mean they have to top up an employee for a longer period or for a greater amount than they may have intended,” Koper tells AdvocateDaily.com.

Please click here to read the complete story

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2017-11-09
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2017-10-01
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Acting as a director on her first corporate board has had a positive domino effect for Windsor employment and education lawyer Sheila MacKinnon.

MacKinnon, managing partner of Shibley Righton LLP’s Windsor office, tells AdvocateDaily.com she has often served on boards where she is either the sole woman or one of only a few.

Repeated studies have determined a dramatic absence or under-representation of women on corporate boards, showing that Canada has fallen behind other countries when it comes to promoting female membership.

A report by TD Economics found while women's participation in the labour force has increased significantly, that change has yet to be reflected at the top of Canada's largest companies.

MacKinnon has found it takes determination and, in some situations, strategic planning.

This is an excerpt from an article that appeared on AdvocateDaily.com.  Please click here to read the complete story.

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2017-09-11
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2017-09-01
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Organizations have increasingly found efficiencies by using in-house lawyers, but sometimes there is a need for them to seek outside help, says Windsor employment and education lawyer Sheila MacKinnon.

“If you’re doing something routine — like real estate, where the transactions are not particularly novel — it makes sense to use in-house counsel,” MacKinnon, managing partner of Shibley Righton LLP’s Windsor office, tells AdvocateDaily.com.

She points to a municipality needing to draft a new bylaw as an example of routine work that can likely be tackled by an organization’s internal legal team.

But sometimes, unique situations — including litigation — arise outside of the legal staff’s area of expertise. So at that point, they should consider tapping an outside law firm.

This is an excerpt from an article that appeared on AdvocateDaily.com.  Please click here to read the complete story.

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2017-07-21
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New legislation under consideration in Ontario would allow more flexibility for those seeking elected office, says Windsor public law lawyer Sheila MacKinnon.

Bill 68, Modernizing Ontario’s Municipal Legislation Act, amends several existing acts and passedMay 30, 2017, says MacKinnon, managing partner of Shibley Righton LLP’s Windsor office.

One aspect of the bill would provide judges more discretion in whether a school board trustee or municipal councilor should be removed from their seat for a conflict of interest, MacKinnon tells AdvocateDaily.com.

“Currently if a judge finds a school board trustee or a municipal councillor has breached the Municipal Conflicts of Interest Act, they have no real discretion as to what they can do with them,” she says. “Their seat must be vacated.”

This is a excerpt from a story that appeared on AdvocateDaily.com.  Please click here to read the full article.

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2017-06-01
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Requests to have service dogs in schools are becoming increasingly challenging and complex, says Windsor education lawyer Jessica Koper.

While in an employment context, employers have the right to choose the type of accommodation when notified of an employee’s disability, the situation becomes a little murky in a school setting, says Koper, an associate with Shibley Righton LLP.

“It is much more complex when it’s a request for a psychological or mental disability, such as anxiety, as opposed to an accommodation request for a physical disability, such as a guide dog,” she says.

This article appeared on AdvocateDaily.com.  Please click here to read the complete story.

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2016-10-14
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School boards and parents are grappling with a gap in services for children with special needs between the ages of 18 and 21, says Windsor education law lawyer Sheila MacKinnon.

MacKinnon, who is managing partner at Shibley Righton LLP’s Windsor office, says school boards are seeing more human rights complaints from parents who are struggling with how to find adequate services for their children.

After the age of 18, children with autism and other disabilities are no longer funded to attend certain treatment centres. But since they are entitled to attend public school until the age of 21, the individuals go to school, only to find their challenges supercede the school’s ability to serve them.

“They try to transition into school and sometimes the child becomes violent or encounters other obstacles,” MacKinnon tells AdvocateDaily.com.

For the full story please click here

Date_Published
2016-06-28
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An Ontario Divisional Court has upheld a school board decision to close Niagara-on-the-Lake’s last elementary school in a ruling that acknowledges how difficult and heart wrenching such closures can be for communities, says education lawyer Sheila MacKinnon, a partner with Shibley Righton LLP.

Citizens for Accountable and Responsible Education Niagara Inc. v. District School Board of Niagara, 2015 ONSC 2058 (CanLII) saw a group of parents challenge the District School Board of Niagara decision to close Parliament Oak School (POS) due to decreased enrollment.

The school board was represented by Shibley Righton lawyers Paul Howard and Jessica Koper.

Please click here for the fill story

Date_Published
2015-06-29
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The creation of a school dress code requires the often delicate balance between the right to freely express oneself and the need for school environments to be respectful and appropriate, says education lawyer Sheila MacKinnon.

One Newfoundland and Labrador school’s dress code recently prompted protests, reports the CBC, as students at Beaconsfield Junior High in St. John's felt the policy was “sexist and unfair.”

Last year, another Newfoundland and Labrador school, Menihek High School in Labrador City, also dealt with dress code controversy after about 30 students were sent home because of attire deemed to have violated the code — including wearing sleeveless shirts and having bra straps exposed, says the CBC.

Click here for the full story

Date_Published
2015-05-20

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