recourse and remedies are available. Obtaining such clarification in writing may
require some advocacy if a school board is not forthcoming.
Often, parents are not provided reasons for the exclusion, or the legal authority
for the exclusion. Exclusions may be for a shorter period of time until certain
events occur such as assessments, accommodations and interim
accommodations, or the administering of chemical restraints. Other times, the
exclusions are perceived to be permanent.
The Ministry provides limited direction in Policy/Program Memorandum stating
that this provision is not to be used as a form of discipline and that parents are to
be notified of the exclusion and of their right to appeal under clause 265(1)(m) as
soon as possible.^166 The Court of Appeal has also considered the legal authority
and application of this section.^167 Some Boards, like the Toronto District School
Board have adopted a Governance Procedure^168 outlining the process for an
appeal under section 265(1)(m), which provides for substantial discretion to the
Board in the conduct of the hearing.
When considering appealing to a school board, considerations should include:
the power imbalance, lack of representation, bias, reprisals and whether the
remedy available would be at all significant. It is also important to be aware that
school boards may take the position that the appeal is limited to the upholding or
quashing of the Principal’s decision regarding section 265 (1)(m) and can not
consider issues related to accommodations and the IEP. Therefore, even if a
parent was to be successful at a section 265(1)(m) hearing, the underlying issues
may not be dealt with. If the remedy is to quash the decision and allow the
student access to school, the underlying problems such as a failure to
accommodate and attitudinal barriers, will persist.
(^166) Ministry of Education, Policy/Program Memorandum No. 145, Progressive Discipline and
Promoting Positive Student Behaviour, 167 (issued December 5, 2012) at 5.
168 Bonnah v. Ottawa-Carleton District School Board, (2003) 64 OR (3d) 454 (Ont. CA).^
Toronto District School Board, Hearing of an Appeal Under Section 265 (1)(m) of the Education
Act - Governance Procedure - PR602 (adopted May 18, 2011).