There may be other legal avenues that may be appropriate depending on the
facts and remedies sought. In a recent interim decision released by the HRTO, a
9 year old student with disabilities who was excluded from school due to
disability-related behaviour was ordered back to school with conditions. In cases
where a prima facie case of discrimination can be made out, the HRTO may be
an effective alternative to an appeal to the school board.^169
B. Trespass OrdersIn 2008, amendments to the Safe Schools Act were accompanied by regulatory
amendments to ensure that the trespass provision at section 305 of the
Education Act was no longer applied to exclude children with disabilities from
school.^170
Section 305 of the Education Act, Regulation 474/00, and section 265 (1)(m) may
nonetheless be applied to exclude parents from school property in certain
circumstances. Depending on the facts of each case, an appeal to the school
board, a human rights application or a civil action may be appropriate.^171
C. Shortened Days(^169) Supra note 156. See also supra note 136.
(^170) Access to School Premises, O Reg 474/00, s 3(3) [Regulation 474/00].
(^171) See Supra note 136 at paras 252 – 254. See also Foschia v. Conseil des Ecoles Catholiques
de Langues Francaise du Centre-Est, 2009 ONCA 499 at paras 22-24, in a matter relating to a
trespass order against a parent of a student, the Court of Appeal for Ontario dealt with a
challenge to the application of section 265(1)(m) and regulation 474/00 order excluding the parent
from his children’s school. The parent commenced legal action against the school board alleging
negligence, intentional infliction of mental suffering and misfeasance in public office.
The Court of Appeal dismissed the negligence claims and found that a judicial review of the
decision of the Board of Trustees was the most appropriate route. Also, they considered the
misfeasance in public office claim and considered the extended continuation for the ban against
the plaintiff. The parent argued that the extension of the ban was motivated by malice towards
him. The Court of Appeal allowed the claim of misfeasance to continue, as this was a preliminary
decision in response to the school board’s attempt to having it thrown out. The matter itself had
not been fully heard but the decision is informative as it leaves an opening to framing these types
of issues as misfeasance in public office, if all the elements are met. In its decision, the Court
provided a useful review of the elements for proving misfeasance in public office.