Education and Public Law

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.

Shibley Righton's June 2019 Education Law eBulletin

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.