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Mar 23, 2017

Education Law Blog

Suspension Part III: Appeal Hearing

While my last blog piece talked about the appeal process and grounds of appeal for discretionary suspensions, this week's article is about the appeal hearing itself. If you have reached this stage in the appeal process, it means you have exhausted the early resolution meeting and did not come to an agreement with the school board.

I regularly advise all my clients to prepare for the appeal hearing as soon as they have filed the notice to appeal. Because the school board is obligated to hold an appeal hearing within 15 school days of receiving the notice, the appeal hearing can happen sooner than you think.

What does the appeal hearing look like, and who can participate? The appeal hearing is held in front of the appeal hearing committee, which is composed of school board trustees. The two opposing parties would be your child and his/her representatives, and the principal. The hearing could take up to two hours. The hearing typically follows the following pattern:

 

1.     The hearing committee explains the rules.

2.     Either party may bring forward preliminary issues if there is any.

3.     The student and his/her representative make an opening statement.

4.     The principal and his/her representative make an opening statement.

5.     The student and his/her representatives call their witnesses and conduct direct examinations.

6.     The principal and his/her representative conduct cross-examinations on the preceding witnesses.

7.     The principal and his/her representative call their witnesses and conduct direct examinations.

8.     The student and his/her representative conduct cross-examinations on the witnesses.

9.     The student and his/her representative make a closing statement.

10. The principal and his/her representative make a closing statement.

11. The hearing committee makes a decision.

Here are some of the things you should do to prepare for the hearing:

1.    Read the school board’s policy carefully. Each school board has its policy about the hearing process. Ask the school board for a copy, as they have a duty to provide it.

2.    Ask for disclosure. You should have a chance to review all the notes relating to the incident leading to the suspension. At least one week before the hearing date, ask the school board to provide you with disclosure.

3.    Review the disclosure. The disclosure should tell you which students or school staff witnessed the event, and what your child disclosed. When you are reading the disclosure, ask yourself:

  • Did the principal conduct a thorough investigation? Were all witnesses questioned?
  • Did the disclosure tell a different story than what your child has told you?
  • Should the school have done anything to prevent the incident from happening?
  •  Was action provoked? Was your child being bullied?

4.     Formulate your argument by utilizing the mitigating factors which I wrote about in my previous blog piece.

5.     Think about what witnesses to call. Would your child be okay with testifying at the hearing and being cross-examined? Does your child have a friend who is willing to testify?

Before going into the hearing, you should be aware of your rights, which include:

  • The right to present any relevant evidence
  • The right to make a statement
  • The right to call witnesses
  • The right to conduct direct examinations on your witnesses
  • The right carry out cross-examinations on the principal and any of the school board's witnesses

If the hearing committee denies any of these rights, do not concede. These rights are guaranteed under the Statutory Powers Procedure Act, to ensure that each person receives a fair hearing.

At the end of the hearing, the hearing committee will decide to:

  •  Confirm both the decision to suspend and the duration of the suspension, OR
  •  Confirm the decision to suspend but shorten the length, OR
  •  Quash the decision to suspend and expunge the record of the suspension.

The student shall receive a written decision shortly after the hearing. This decision is final. The only way to appeal this decision would be to proceed with a judicial review application to the Divisional Court.

If you are about to proceed with a suspension hearing, or if you have lost a suspension hearing and wants legal advice on the possibility of initiating a judicial review application, please do not hesitate to contact Kingston Community Legal Clinic for assistance.

 

 


This blog, written by Sandra Hsia, Staff Lawyer with the Kingston Community Legal Clinic, provides general legal information only about current laws.

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