Principals of a school have a duty to ensure the safety of students and others while on school premises, says education lawyer Sheila MacKinnon.

MacKinnon, partner with Shibley Righton LLP, weighs in on the subject in a Globe and Mail article about a special meeting recently held by Toronto Catholic District School Board trustees to discuss a trespassing order against a father who had allegedly threatened the school’s principal and physically assaulted a caretaker.

The trustees overturned the trespassing order against the man, the Globe reports, “despite provincial legislation that requires school boards to maintain a safe school environment for staff and students.”

The father was angry his daughter did not make the soccer team, the report continues.

“Based on a regulation under the Education Act, unless there’s a board policy otherwise, it’s the principal who determines if a person’s presence is detrimental to the safety or well-being of people at the school,” MacKinnon says in the Globe.

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.

The Newfoundland and Labrador Federation of School Councils has said schools need to be “democratic” about dress codes and involve parents, teachers and students, says the report.

In Ontario, says MacKinnon, dress codes are created at the individual school and community level.

“As far as I understand it, many school boards have parameters in place to guide schools, but they leave it to individual schools to set their own policies,” MacKinnon, a partner with Shibley Righton LLP, tells AdvocateDaily.com. “Many are then vetted through school councils, and put to a vote by the parents on behalf of children if they’re under 18.”

Individual policies may vary, but MacKinnon says all should be in line with human rights codes and the Canadian Charter of Rights and Freedoms.

“Some people may say, ‘I have freedom of expression and I can wear what I want,’ but like any other Charter right, it’s a balance,” she says. “Schools should consider whether their policy is consistent with human rights codes and the Charter, especially as related to religious beliefs.”

An ideal dress code should touch on respect, safety and the importance of diversity, says MacKinnon.

“Schools should ensure those are covered off. A dress code should also discuss what’s not appropriate. Gang affiliation or profanity is usually not allowed, or clothing depicting violence or any sort of discrimination based on gender, race or disability,” she says. “Decency is usually a concept that’s included as well, with some going as far as to say females cannot bare their midriff, for example.”

Determining where to draw the line with such rules is never easy, says MacKinnon.

“Where that line is may be different depending on the circumstances,” she says. “It’s always difficult, but the principal has an obligation to ensure the school is safe and welcoming to all students. The right way to balance individual rights is to prepare dress codes on a school-by-school basis so they're reflective of the local community and ensure democratic rights by having parents vote on a code.”

Rules are generally not “black and white,” says MacKinnon, noting a dress code may require students to remove hats during the national anthem, for example, but if that goes against a religious right, an exception will be made.

“Schools have to be mindful of what is in the code and whether it could violate someone’s right under the human rights code,” she says. “They have to take that into account when setting their rules and then allow for that adjustment when they do discover mitigating factors.”

An employer’s financial position should not be a consideration in determining termination pay, says employment and education lawyer Sheila MacKinnon.

“You don’t look at the circumstances of the employer, but the circumstances of the employee,” says MacKinnon, managing partner of Shibley Righton LLP’s Windsor office.

An Ontario Court of Appeal ruling involving teachers at a King City, Ont. private school underscored that fact in Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801.

Three teachers who were employed on a series of one-year contracts for several years launched a wrongful dismissal lawsuit that proceeded on a motion for summary judgment after the school failed to pay them in lieu of notice.

“The respondent argued that the appellants were not entitled to notice because they were employed pursuant to fixed-term contracts,” the decision reads. “However, the motion judge found that the appellants were employed for indefinite periods and were entitled to reasonable notice.”

The motion judge reduced the 12-month notice period proposed by the appellants to six months after taking into account the respondent’s financial position and the availability of alternative teaching positions, the decision says.

But the appeal court eventually found that the motion judge “erred in considering an employer’s financial circumstances as part of the ‘character of the employment.’”

The panel wrote: “An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.”

MacKinnon, who was not involved in the case and comments generally, says the appeal court ruling is consistent with the law.

“When an employer dismisses an employee without cause – which they are entitled to do – they must give them reasonable notice,” she tells AdvocateDaily.com.

“Some people are under the mistaken impression that it’s almost like double dipping,” she says. For example, the employee may be able to collect termination pay while being employed at a new job.

But the purpose of termination pay is to take into consideration how long someone might reasonably be unemployed based on various factors, she says.

“The idea is you may not be able to get a job within a certain amount of time based on your age, the seniority of the position that you had and the level of pay you received,” she says.

In the tough Windsor job market, for instance, it may take longer for private school teachers to find jobs, MacKinnon adds.

“We have the highest unemployment rate in Ontario in certain fields. All of that goes into trying to come up with this magic number of how many months or weeks is appropriate notice to give to the employee – because in essence, they are entitled to have their income and benefits basically replaced for that period if they were dismissed without notice.”

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.

If the organization needs to defend or launch a lawsuit but that’s not something they do routinely, they might be better off hiring a litigation lawyer or firm that specializes in litigation and works exclusively in that practice area, MacKinnon explains.

“It becomes not so much a cost factor as a capacity issue,” she says. “It really isn’t to their benefit to train up just to do one file.

“But if you’re dealing with human rights complaints on a regular basis, for example, it makes sense to train in-house lawyers to take on those files.”

Often, she says, it’s simply less expensive to higher outside counsel. Costs associated with having a lawyer on staff go beyond salary and benefits. There’s the expense of mandatory training as well as support staff who require instruction as well.

“So a company or an institution would have to weigh the cost of getting this person up and running to the volume of work they anticipate will happen. The larger the institution, the more likely they have higher volume routine matters,” says MacKinnon, who has seen the evolution of in-house lawyers.

She recalls when opportunities for lawyers looking to work with an organization or business were largely restricted to banks, security commissions and governments. The work wasn’t very diversified and, until about a decade ago, the pay wasn’t nearly as good as private practice.

Although, for lawyers, in-house work can be an attractive alternative for those seeking regular office hours and predictability.

MacKinnon says the contrast between corporate counsel and those in private practice would be particularly noticeable during litigation, which involves intense work, especially during the period the issue comes before the courts. The lower-paid in-house lawyer would have to put in the same long hours and dedication on the file as the much higher-paid lawyer they're opposing.

"No litigator works nine to five" when they’re on a trial, she says.

But the pay has improved substantially and the work can be rewarding, MacKinnon says. There are also opportunities for lawyers to move from the legal department into the operations side of the establishment, where their legal knowledge and education are viewed as a benefit to the overall organization.

When using social media as a pre-employment screening tool, recruiters must look at privacy concerns related not only to the applicant – the individual's 'friends' must also be considered, says Toronto and Windsor employment lawyer Sheila MacKinnon.

A partner with Shibley Righton LLP, MacKinnon recently spoke at the Ontario Public School Boards' Association’s 2014 Labour Relations Symposium on the topic of social media in the workplace.

The presentation was part of a three-day event focused on the topics of education labour relations and human resources. MacKinnon participated in a session that examined when social media sites can be used for pre-employment screening; how to balance an employee’s right to privacy with an employer’s right to surveillance of electronic devices; trustees’ use of social media and what’s appropriate; and what can be done about students’ or employees’ use of social media to criticize the board or harass an employee.

School boards are subject to the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which means collection of personal information usually requires the individual’s consent, the presentation says.

However, MacKinnon says, s. 52 (3) 3 may apply in some cases, excluding the application of the act when dealing with records collected, prepared, maintained or used by or on behalf of an institution in relation to meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.

The Office of the Information and Privacy Commissioner of Ontario (IPC) has found that “records relating to recruitment and screening are employment-related matters within the meaning of s.52 (3) 3,” the presentation reads.

“Even if the MFIPPA applies, the IPC has found that if information is only viewed and not printed or downloaded then it is not being collected by the institution.”

While viewing publicly available social media pages isn’t likely to be a problem, MacKinnon says asking for passwords or sending friend requests to potential employees is where the activity becomes more intrusive.

“Much of the information on a Facebook page would not be relevant for employment purposes and may breach the applicant’s friends’ privacy,” the presentation says.

On the topic of surveillance of electronic devices, MacKinnon a balance must be struck between an employee’s right to privacy and the employer's interest in safety and security.

Generally, the test for conducting surveillance considers whether there were reasonable grounds for conducting the search; if monitoring was necessary to meet the legitimate employer’s purpose; and whether the least intrusive method was used.

When a school board trustee is using social media, they must remember they are a trustee 24 hours a day, and consider whether it’s clear if they’re speaking on behalf of the board or presenting a personal view.

As schools continue to evolve with technology by offering expanded wi-fi access and more digital educational tools, it’s important to also stay up to date with rules around appropriate use of these devices, says education lawyer Sheila MacKinnon.

“It’s a balancing of everyone’s rights — the rights of the person who’s accessing the wifi, for example, and the school board’s duty to ensure the safety of its students and staff,” she tells AdvocateDaily.com. “This is why schools must have policies for any online use.”

Many institutions, for example, block access to certain sites — most often pornographic pages, says MacKinnon.

“This is because it’s offensive to others who may see you viewing it, and it’s not an appropriate use from a school board’s point of view,” says MacKinnon, a partner with Shibley Righton LLP. “They are a public institution and so they have to balance the interest of all other students and staff and persons in the community who use the building.”

When it comes to Internet use, schools must act in loco parentis — or step into the place of a parent — to monitor activity, she says.

“It’s a safety issue to protect students under 18 years of age the same way a parent would,” she says. “They don’t want them engaging in certain chat rooms and any other inappropriate behaviour online, so the school board and in particular teachers and staff stand in the shoes of the parent. Their primary concern is safety in the same way a parent would want to ensure their child is safely using wi-fi.”

Cyberbullying, says MacKinnon, is another related issue that likely requires its own policy.

“It’s difficult to manage that, but I would think there should be an obligation when it’s emanating right there from the school to have rules in place,” she says. “I’m not sure if there’s a way to block that type of activity through the school’s wi-fi, but if there is, that should be done.”

Further complications can arise when cyberbullying takes place off school property, but its effects are carried into the classroom.

“It’s difficult because sometimes you’re managing what you would call off-school-property behaviour but it’s impacting the students in the school,” she says. “If it’s impacting students during the day at school it becomes a problem.”

Of course, like many issues in schools, appropriate use of technology — and setting limitations on use of devices — is not always clear cut.

“There may be policies where students aren’t allowed to use phones during the day, and there have been incidents I’ve heard of where parents are upset because they want to be able to reach their child throughout the day,” she says.

“I think when the teacher does have such a rule in place, it’s from the perspective of that the students are suppose to be paying attention and not texting or watching videos during class time.. If they have to go online for schoolwork that’s permitted, but clearly you’re not going to allow smartphones while writing exams, for example.”

Despite their pervasiveness, mobile devices should be viewed like any other distraction in the classroom, says MacKinnon.

“In class, students are supposed to be paying attention to the teacher, and the teacher has the obligation to control the classroom, as does the principal overseeing the teacher. If they’re just allowed to sit and text and Facebook they’re not learning. They wouldn’t allow them to sit and doodle drawings either.”

Sheila MacKinnon, a public law lawyer who first joined Shibley Righton LLP more than 30 years ago, has been named managing partner of the firm’s Windsor office.

MacKinnon’s practice ranges from education and public law to labour and employment matters.

The change comes as the Honourable J. Paul R. Howard, the office’s former managing partner and MacKinnon’s husband, was appointed a judge of the Ontario Superior Court of Justice last year.

In the early years of MacKinnon's legal practice, she specialized in the areas of corporate-commercial law and income tax planning and litigation. As well, for many years, MacKinnon gained practical business experience as the operator and manager of her family-owned retirement home business in Essex County.

She then returned to practising law part-time in the education law group while running the retirement home.

MacKinnon and Howard moved as a family to Windsor after spending time practising in Shibley's Toronto office and formally opened the Windsor Office of Shibley Righton in 2001, she says. The Windsor location now has 13 lawyers serving clients in various areas of law.

MacKinnon branched out from what was initially her primary practices of commercial and corporate law and began practising civil litigation, which included acting for what was then the Toronto Board of Education, she tells AdvocateDaily.com.

“I was in the litigation group and we were acting for that client, then we started doing more and more of what we now call education law for many Ontario school boards,” MacKinnon says.

Now MacKinnon and the firm take on “administrative law,” sub-specializing in special education and human rights law for school boards, “and just generally any legal advice a school board may need.”

Naturally, MacKinnon started to gravitate toward conducting more work with the Ontario Public School Boards Association, which advocates for public education. She provides professional development for elected trustees in the areas of conflict of interest, privacy law, parliamentary procedure, and general board governance.

MacKinnon also chairs the Board of Governors at the University of Windsor and is the past chairwoman of the United Communities Credit Union, now the Libro Credit Union.

“Through my own extracurricular activities, I’ve learned governance procedures,” she says. “I’ve learned all the skills of being a chair and running a meeting, and now I speak at conferences at the Ontario Public School Boards Association on the development and amendment of corporate and school board bylaws and governing policies."

Established in 1964, Shibley Righton LLP is a full-service law firm with offices located in Toronto, Windsor and Hamilton.

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.

In April 2014, the school board voted to close the school after efforts to increase enrollment were unsuccessful.

“As of Sept. 15, 2013, there were 127 students attending POS, which has a capacity of 328. POS was operating at a 39 per cent utilization rate,” says MacKinnon.

A group of parents subsequently sought judicial review of the board's decision both on a procedural and substantive basis, with the applicants alleging the decision-making process was procedurally unfair, and that the decision to close the school was not reasonable. The latter argument was dropped at the hearing of the application, notes MacKinnon.

“A school board’s decision to close a school due to decreased enrollment has a significant impact upon a community and its residents both present and future,” Justice Janet Wilson writes in the decision. “These are difficult, heart wrenching decisions, provoking strong and divergent feelings and opinions amongst affected community members.”

At the same time, writes Wilson, “... it is not the role of this court to evaluate the wisdom of decisions by trustees to close a school.”

The decision, says MacKinnon, “underlines the importance of school boards to keep a detailed record of meetings and the rules, steps and processes followed during an entire accommodation review in order to maintain transparency.”

It also “reaffirms that the courts will not lightly intervene in decisions made by trustees to close a school,” she adds.

The contention raised in the case is not a new phenomenon, says MacKinnon, as issues around vacant spots in schools often spur serious and heated debates.

About a month before the ruling was released, the Ministry of Education released revised guidelines — called the Pupil Accommodation Review Guideline — to help school boards with the process of making decisions over empty space in schools.

The Guideline serves as a province-wide standard for school boards, and must be consulted, along with the Community Planning and Partnerships Guideline, before any new reviews of the ussage of school space are announced, says a government release.

“Student accommodation decisions such as closing schools, consolidating schools and building new schools are among the most important responsibilities of locally elected school board trustees,” says the release. “The Ministry of Education cannot overrule or change these decisions.”

School boards will usually undertake a pupil accommodation review process — led by an Accommodation Review Committee — when it is contemplating closing a school, says the release.

While MacKinnon believes the court made the right decision in the Niagara case, she says it’s understandable that heartfelt attachments to schools exist.

“It can be quite emotional for parents,” says MacKinnon, who has been brought in as a consultant on similar cases in the past. “It’s interesting because at the end of the day, it’s just bricks and mortar, but for everyone involved it’s history and memories being taken away.”

But she says it’s also important to remember that these decisions are made with the best interests of students, staff and other stakeholders in mind.

“Having a large number of vacant spots does not lead to good programming for students,” says MacKinnon. “If there are not many students, particularly with high schools, you can’t offer all the extracurricular activities and you can’t offer the variety in courses you might be able to offer at a bigger high school.”

POS is slated to close at the end of this month, says MacKinnon, with students scheduled to attend a newer school about 7 km away in September.

The Ontario ombudsman’s new powers over school boards appear to be unnecessary given the built-in oversight and appeal processes already encompassed in the province’s education system, says education lawyer Sheila MacKinnon.

Among other things, the recent passing of Bill 8 – the Public Sector and MPP Accountability and Transparency Act – gives provincial ombudsman André Marin expanded oversight over municipalities, universities and school boards, the Toronto Star reports.

Marin hoped to also bring hospitals within his purview, but the government decided to instead appoint a patient ombudsman, who will not be an independent officer of the legislature like Marin, says the Star.

MacKinnon, partner with Shibley Righton LLP, questions whether the extra oversight is necessary in the education sector.

“This sector is very complex, so now you’re going to have to have someone within the ombudsman’s staff who understands how the education system works. It’s not just delivery of education; it involves the physical and mental health of students,” says MacKinnon. “These are growing children. They go into the system at four and they come out at 18. Lots of changes happen to a child during that time.”

When it comes to special education, MacKinnon says the system is “highly specialized.”

With respect to school boards, the new rules stipulate that existing appeal or hearing processes within the system must be followed before the ombudsman can investigate a complaint.

The amendment to subsection 14 (4) of the Ombudsman Act says the ombudsman may not investigate where there is, “under any by-law or resolution of a school board, a right of appeal or objection, or a right to apply for a hearing or review, on the merits of the case to a designated school board official or employee, or to a committee constituted by or under a by-law or resolution of the school board until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that right has expired.”

Because the system already has extensive oversight in the form of in-depth internal reviews and appeals to third parties, and the ombudsman cannot step in until that process runs its course, MacKinnon questions how effective the new presence will be balanced against the cost.

“What will be left over for the ombudsman to do?” says the education lawyer. “School boards are unlike other government organizations where an ordinary taxpayer may be trying to wade through policy decisions and there’s no clear process for review. There are protections built in to the education system."

According to the ombudsman’s website, more than 20,000 complaints about MUSH – municipalities, universities, schools, hospitals – organizations have had to be turned away by the office since 2005.

“In fairness, I don’t know what the complaints were that could not be dealt with,” says MacKinnon, noting it’s not surprising that individuals have come forward. “It’s a service being delivered and parents are not going to agree at times with the local school and school board.”

But MacKinnon points to the elected school board trustees, who are “considered the voice in the advocacy of public education,” as being part of the support network for parents.

“They help parents in their inquiries – part of their role is to be there and make sure, if the parent isn’t aware of the system processes, that they’re guided through.”

The bill also gives the government greater say over public sector executive compensation at the senior levels, says MacKinnon.

“In essence, when it comes to setting compensation, this will take it out of the hands of the trustees,” she says. “School boards won’t have as much latitude or say in what the salary and benefits will be for their senior executives.”

It’s not clear at this point how great of an impact the change will have on senior employees, says MacKinnon.

Education lawyer Sheila MacKinnon will present a workshop on the regulations and policies in place to protect students at the upcoming Ontario Public School Boards’ Association annual general meeting.

On June 12 from 2:15 to 3:30 p.m., MacKinnon, a partner with Shibley Righton LLP, will present the ‘How are School Boards Protecting Students’ workshop, which will review and examine some of the numerous guidelines, regulations, policies and legislation in place. MacKinnon will also discuss the top-10 lessons learned from the most recent school closing case.

The annual general meeting will run from June 11 to 13 at Westin Trillium House, Blue Mountain, located at 220 Mountain Dr. in Collingwood.

For more information, click here.

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. Even if treatment providers warn that the school setting is not appropriate, working parents are often left with no other option, she says.

“So they bring them in and then educators often have to exclude them within a few days because their behaviours are so extreme it becomes a safety issue or other children and staff.”

The situation raises questions of whether school boards or other levels of government should be responsible for serving young adults with severe disabilities who can’t cope in a school setting, she says.

“Educators are trained professionals and the children are their whole worlds,” MacKinnon says. “They feel awful when these children with special needs are sent home."

The human rights complaints allege the school boards are failing to accommodate the children's special needs, she says. But the school systems are often not appropriate setting for these children as their needs require medical care beyond what a school board can provide.

“The test of the human rights tribunal is quite a high one. You must accommodate to the point of undue hardship and for these cases, it’s about safety.

The situation is not unique to southern Ontario.

The Supreme Court of Canada will hear an appeal from the B.C. Teachers’ Federation (BCTF) regarding classroom sizes, composition of students and the ratio of specialist teachers in their contract with the Ministry of Education, the Globe and Mail reports.

The legal battle could have broader implications for inclusion, described in the article as a principle championed by disability advocates “that all children are entitled to equitable access to education in regular public-school classrooms. While provincial school systems across the country have long committed to inclusion, financially strapped systems are forced to compromise.”

A 2014 report by the People for Education found that about half of elementary principals have told students with special needs to stay home because there was not enough support for them, the article notes.

It's a familiar refrain to MacKinnon.

“The parents say, ‘My God, I’m not getting any services paid for by the government and I need to go to work. Who is going to look after this child, because he has been in a treatment centre all this time?’

“But public schools in these extreme cases don’t have the funding and/or ability to service the child's needs even with accommodations.”

New guidelines released by the Nova Scotia government to help schools, staff and students support transgender and gender non-conforming students are certain to help stakeholders navigate difficult situations in the future, says education lawyer Sheila MacKinnon.

The guidelines, released by the Education Department last month, affirm students’ rights under the Human Rights Act and suggest ways to safeguard their privacy and safety and accommodate their needs, reports the CBC.

The document, called Guidelines for Supporting Transgender and Gender-nonconforming Students, says transgender or gender non-conforming students have the right to “be openly who they are, and they have a right to privacy and confidentiality.”

It also states that students may use whichever washroom aligns with their identity and “where possible, schools should provide an easily accessible, gender-neutral, single-stall washroom,” reports the CBC.

The guidelines also weigh in on the issue of a student’s legal name, stating it must be used on report cards, transcripts, diplomas and in PowerSchool, an electronic record-keeping system, but students may choose the name and pronoun by which they wish to be addressed. Children in classes from Primary to Grade 6 must have parental consent to use a preferred name, reports the CBC.

Dress codes should be flexible and gender-neutral, say the guidelines, and gender-segregated activities such as boys versus girls events should be eliminated.

MacKinnon, a partner with Shibley Righton LLP who has been consulted on issues related to transgender and gender non-conforming students in Ontario, applauds the creation of the guidelines.

“The fact that they’ve implemented guidelines is going to help guide school boards set policies and protect students from discrimination,” she says.

In Ontario, discrimination due to gender identity and gender expression is touched on in several ways, says MacKinnon.

The province’s Human Rights Code protects people from discrimination and harassment because of gender identity and gender expression in certain settings, including schools, she says. The Ontario Human Rights Commission also has a policy called Preventing discrimination because of gender identity and gender expression, and the Toronto District School Board has guidelines in place to “raise awareness and help protect against discrimination and harassment.”

Titled Guidelines for the Accommodation of Transgender and Gender Independent/Non-Conforming Students and Staff, the school board’s guidelines discuss bathroom and changeroom use and how individual accommodations are made.

In general, MacKinnon says the scenarios that arise in schools are difficult to navigate, and often point to the need for more education and awareness in the area of gender identity.

“Most times, these situations need to be dealt with on a case-by-case basis,” says the education lawyer. “These issues are very sensitive. The fact is, it has to be addressed to protect the dignity of the student involved and to counter the misunderstanding of the matter by the general public."

In one case MacKinnon is familiar with, a six-year-old child wanted a different pronoun used in reference to gender, but the parents disagreed.

“In these cases, it helps staff to have guidance through policies.”

And the policies help students as well, adds MacKinnon.

“Schools have to have inclusive environments where a student's individuality and rights are respected,” she says.

The difficult issue of how to balance the rights of students with special needs who pose a risk of harm to others with the rights of other students and staff to a safe environment is slated to be discussed by education lawyer Sheila MacKinnon at an upcoming Osgoode Professional Development program.

MacKinnon, partner with Shibley Righton LLP, is scheduled to discuss the topics as part of a panel at the 9th Annual Advanced Issues in Special Education Law program on Oct. 20.

The event takes place from 8 a.m. to 4 p.m. at the Osgoode Professional Development Centre, 1 Dundas St. W. in Toronto.

MacKinnon is a participant on the panel Managing Injurious Behaviour, which is scheduled to cover topics including the OHSA, discipline under the Education Act, violent incident forms, refusing to admit a student and more.

She is also scheduled to take part in an interactive session where participants will work with a fact scenario highlighting legal issues raised by presenters throughout the day.

To learn more about the event, visit the website.

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.”

The new bill would not make the decision so black and white, says MacKinnon, who often acts as legal counsel for school boards.

“The judge may find that while it was a technical breach, there may be mitigating factors,” she says.

Another interesting change is a new pregnancy and parental leave for municipal councilors and school board trustees, MacKinnon says. While the rules for school board trustees are strict in terms of the number of meetings an elected official can miss, the new law would allow new parents to miss meetings for a 20-week period as a result of the member's pregnancy, the birth of the member's child or the adoption of a child by a member.

“It permits a municipal councilor or school board trustee to essentially take a leave of absence from their position for a period of time. Currently, for school boards, you can’t miss more than three meetings in a row unless the board permits it by a resolution.”

“The bottom line is this is good for women and new parents,” says MacKinnon.

“It would encourage women who want to seek office in their childbearing years,” she says. “Otherwise, you’re always at the mercy of your fellow board members to permit you to miss meetings."

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.”

She says the community isn’t served if trustees don’t bear in mind the bigger picture.

MacKinnon gives the example of school closings, a hot-button issue in a climate of declining enrolment.

“When I talk to trustees at conferences, I explain that you have to examine staff or committee reports about the schools in question. You have to look at the finances and determine if it’s viable to keep it open,” she says.

Fiscal responsibility is a consideration as there may be a reduction in certain funding if a school is maintained amid declining enrollment numbers, MacKinnon explains.

“You can’t be blind to the realities of a situation but trustees also realize that closing a school may mean they won’t be re-elected,” she says.

But it often depends on how the trustee has handled the situation, MacKinnon says.

“They need to explain to their constituents what a school closing report means. You may love the school, but your child is not getting the best programming when there are only 200 students. You can’t offer all of the courses or all of the sports,” she says.

The goal is for trustees to act together as a strategic board as opposed to an operational board, MacKinnon says.

“You’re there to oversee a strategic plan for that board and then the director of education carries it out,” she notes.

There’s generally a three- to five-year strategic plan and an annual report that explains how the plan is being executed, MacKinnon points out.

Understanding the inner workings of a school board also includes following the correct process if a complaint comes forward about a staff member, MacKinnon says.

“If a constituent comes to a trustee and complains about a teacher or a principal, the best practice is not for a trustee to march into the principal’s office and start to order him or her around. A trustee has no authority to do that,” she says. “The protocol is to ask the constituent to go to the teacher directly. If they’re not satisfied, they then go to the principal. The next step would be to go to the superintendent and then to the director of education.”

Over the years, school boards have become complex institutions with policies, procedures and proper governance in place to ensure they’re properly run.

“School boards are complicated organizations, with unions and staffing. Human resources is now a highly specialized discipline.”

But MacKinnon says trustees don’t have to be experts in all matters.

“One of the most important jobs a board of trustees has is to hire the right director of education to carry out the board's mandate and strategic plan. That is responsible for the day-to-day operations of the board as set out in the Education Act. In my opinion, the best functioning school boards are ones where the board of trustees trust their director of education, but maintain respectful oversight.”

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.

“I would say to my associates, if you’re interested in serving on a board, then you first have to kind of work your way up,” says MacKinnon, who has served on both community and corporate boards while continuing to work as a lawyer. “I believe in succession planning; allowing someone to demonstrate their skills in one area before taking on a bigger role."

MacKinnon’s own experience came about quite by accident. And she found one role quickly led to another.

After working at a Bay Street law firm, MacKinnon returned to her home town of Windsor to help run a couple of retirement homes with her mother. She was approached by the local credit union, where she was a member, to sit on its board.

“I think when I started there I was the only woman on a board of nine,” she says, thinking back to 1988.

She remained there for several years and ultimately served as its chair for five years and as chair at the time it decided to merge with a large credit union. That post led to her work on the University of Windsor board of governors, where she also became chair.

MacKinnon currently serves on the board of directors for the Erie St. Clair Local Health Integration Network.

Community board work can offer the foundation necessary to provide both the experience and any specific direction the individual would like to pursue, she says. MacKinnon, for instance, likes to be involved in governance and policy.

But for anyone to be effective in any executive role, she says training is critical. There are organizations that provide guidance, information about a board member's role and help to equip individuals with the tools they need for effective representation.

For those just getting started, MacKinnon suggests seeking a position on a committee before perhaps serving on the whole board, if the structure permits it.

“First, you get involved at the committee level, then you can move on to chair that committee,” and that could lead to a role on the board.

“I tell young female associates that if you’re interested in community service, it’s good to get on boards. You make connections, and that’s also good from a business development point of view.” And that could be especially beneficial for those not from the community in which they now find themselves working.

What’s key, MacKinnon says, is expressing an interest to do that type of work and then getting the experience and training to fulfil that role effectively.

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.