Pubdate: Wed, 18 Dec 2013
Source: National Post (Canada)
Copyright: 2013 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Joseph Brean

WHO RULES THE PRIVATE SCHOOLS? NOT THE COURTS

Discipline not subject to judicial oversight: ruling

Ontario's elite private schools have won a court battle to enforce
their own discipline free from judicial oversight, following the
expulsion of a student caught smoking a bong on his last day of high
school.

The ruling of the Ontario Court of Appeal upholds Gautam Setia's 2010
expulsion from Oakville's Appleby College, and says the enforcement of
Appleby's rule against smoking is "not of broader import to members of
the public." In a unanimous ruling, the court clarifies that public
law only reaches so far into the workings of private high schools.

"The decision taken by Appleby here is one of discipline of a student.
While that decision may to some extent be connected to Appleby's
educational role, it is not regulated by the Education Act, but rather
by the contract between parents and the school. Thus neither Appleby's
statutory origin nor its educational mission provides any significant
public character to the expulsion decision," reads the decision
written by Justice Stephen Goudge, on behalf of himself and judges
David Watt and Sarah Pepall.

Other schools, the most exclusive in the province, intervened to
support Appleby's position: Upper Canada College, Ridley College,
Havergal College, Bishop Strachan School, Trinity College School and
St. Andrew's College.

The expulsion came on the last day of school in 2010, when a teacher
found Mr. Setia and another student in a dorm room with a bong that
appeared to have recently been used to smoke marijuana. He was
expelled the next day, June 15, 2010, by Michael Peirce, then head of
school at Appleby, now an educational consultant.

As a result, Mr. Setia, then 18, was barred from graduation ceremonies
and denied his official Appleby diploma, although he did receive his
Ontario Secondary School Diploma. He and the other student were erased
from yearbook photos, according to a Toronto Life report.

Backed by his parents, Mr. Setia won a decision last year to quash the
expulsion. A lower court decided unanimously that the expulsion
concerned "administration and discipline," and therefore was a
statutory power, granted by the province, over which the court could
exercise judicial review.

A majority also found the school failed to give the Setias enough
opportunity to respond. One judge dissented on this point.

Appleby College is a private school for boys and girls in Grades 7 to
12.

When it was incorporated in 1911 by the Ontario legislature, its
founding act allowed it to "make and pass bylaws, resolutions, rules
and regulations, not contrary to law," and to confer on its staff
"such powers of administration and discipline as it may think necessary."

The school does not receive public funding, but is required to provide
a secular education and meet disclosure and inspection requirements of
the province's Ministry of Education. Students and their families sign
a code of conduct that clearly indicates smoking illegal drugs will
result in expulsion.

Appleby's position at the appeal court, backed by the other schools,
was that the decision to expel Mr. Setia did not constitute the
exercise of a statutory power, and thus is not subject to judicial
review.

As the ruling describes it, statutory powers granted by the province
authorize decision-makers to make important decisions to achieve
public goals, and it is this "effecting of the will of the legislature
by the decision-maker" that gives the decision its public character,
making it vulnerable to oversight by the courts.

But in this case, the law simply authorized the school to confer
powers of discipline on its staff. The precise details of that
discipline, it ruled, are essentially private.

"It was the board [of Appleby], not the legislature, that decided the
power to expel was necessary, and that the head of school should
exercise that power," Judge Goudge wrote. "The expulsion decision
arguably effects the will of the board [of Appleby] more than the will
of the legislature."

The school did not respond to a request for comment. Neither did Mr.
Setia's father, Devinder Singh Setia, who is out of the country.
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