C O M M E N T S

Canadian Association for the Practical Study of Law in Education

NOVA SCOTIA GOVERNMENT INTRODUCES

NEW GUIDELINES FOR SUPPORTING

TRANSGENDER AND GENDER NONCONFORMING STUDENTS

December 2014, Volume 24, No. 2

Background

The Guidelines

On December 10, 2014, Nova Scotia's Departmentof Education and Early Childhood Developmentintroduced new Guidelines for Supporting Transgenderand Gender nonconforming Students (the “Guidelines”).The Guidelines are meant to assist teachers, students andschool boards in including and accommodatingtransgender and gender nonconforming students inschools across Nova Scotia.

The creation of the Guidelines was largely inresponse to the 2012 amendments to Nova Scotia's

, and a broadly publicized incident inApril 2013which involved the discipline of a transgendered studentfor using the female washroom in her high school.

In 2012, Nova Scotia's wasamended and section (na) “gender identity” and section(nb) “gender expression” were added to section 5(1) asprotected grounds.

In 2013 Jessica Durling, a transgendered highschool student at Hants East Rural High, in MilfordStation, Nova Scotia, began using the female washroom ather high school. Although born a male, Jessica identifiedas a female.

Jessica's use of the female washroom resulted inother students complaining to the school's Principal andstaff. The Principal approached Jessica and issued her aone (1) day suspension for using the female washroom.However, before Jessica served her suspension, theChignecto-Central Regional School Board intervened andcancelled the suspension.

At the time of the incident, although gender identifyand expression were protected grounds pursuant to humanrights legislation, there were no provincial guidelines toassist school boards, teachers and educators in theaccommodat ion of t ransgender and gendernonconforming students.

Following the incident, and the media attention itgarnered, a working committee was established andtasked with drafting the new Guidelines. The workingcommittee was comprised of a number of diverse

stakeholders, including Nova Scotia's Department ofEducation, members of the Province's various schoolboards, the Nova Scotia Teachers' Union, the HumanRights Commission and the Youth Project (a non-profitcharitable organization).

In the December 10, 2014 Official Press Release,Nova Scotia's Department of Education and EarlyChildhood Development, states that the new Guidelinesare meant to: “

”The Guidelines are meant to make Nova Scotia's

schools safe, respectful and supportive of transgender andgender nonconforming students. The Guidelines aremeant to be used by school boards, teachers and studentsalike across Nova Scotia to assist in the accommodation oftransgender students, and to help protect them fromdiscrimination.

The Guidelines are 28 pages long and are veryaccessible. They identify seven (7) principalrecommendations, which broadly include:

1. Supporting the student's individualprocess;

2. Using the student's preferred name andpronoun (without verification of identity,or medical records);

3. Maintaining records consistent with legalpractice;

4. Ensuring that dress codes support the fullexpression of the student's genderidentity;

5. Minimizing gender-segregated activities;6. Enabling the full and safe participation in

phys ica l educa t ion c lasses andextracurricular activities (includingathletics) in accordance with the student'sgender identity; and

HumanRights Act

Human Rights Act

…support schools and school boards inprotecting and respecting students as they assert theirgender identity and right to gender expression.

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7. Providing safe access to washrooms andchange-room facilities in accordance withthe student's gender identity.

Over the past few years across Canada, schoolboards, teachers, parents, students and provincialgovernments have been discussing, debating andimplementing accommodative and inclusive measures fortransgendered students and staff in the schoolenvironment.

For example, the Edmonton Public School Boardissued guidelines for the accommodation oftransgendered students in 2011. Additionally in 2011,Canada's largest school board, the Toronto District SchoolBoard adopted guidelines for the accommodation oftransgender and gender nonconforming students and staff.More recently, in June of 2013, the Vancouver SchoolBoard also adopted transgender guidelines.

The adaptation and implementation of transgenderguidelines in schools throughout Canada has not beenwithout debate and criticism. Some critics argue thatthese guidelines undermine parental rights, force teachersinto making decisions that should be made in consultationwith medical professionals, and politicize the educationsystem. However, despite these critiques school boardsacross the country are increasingly recognizing the legalobligation to accommodate transgendered and gendernonconforming staff and students, and consideringguidelines to assist in these accommodative measures.

The Nova Scotia Guidelines will provide a veryhelpful starting point and blueprint for frontline educatorswhen faced with accommodative issues relating totransgendered and gender nonconforming students.

However, the Guidelines are exactly that –guidelines. They do not provide a comprehensiveresponse to every imaginable accommodative scenario.Additionally, the Guidelines specifically recognize that inmany cases, accommodative measures will have to beassessed and responded to on a “case-by-case” basis.

The Guidelines do provide a more directive list of“roles and responsibilities” for students, teachers, andschool boards in creating a safe and supportive culture fortransgender students. Some of these include, for teachers:

· To take personal responsibility to educatethemselves regarding transgender issues;

· To ensure that curriculum and classroommaterials contain positive images andaccura te informat ion ref lec t ingtransgender and gender nonconformingpeople; and

· To develop action plans for transpohobicincidents.

School Boards are tasked with the responsibility ofproviding professional development opportunities forschool staff and promoting and celebrating transgenderand gender non-conforming communities.

Although the Guidelines will not provide all theanswers for issues that are sure to arise in schoolsthroughout the province; the Guidelines provide a helpfulframework to assist educators in Nova Scotia to ensure theinclusion, safety and accommodation of transgenderedand gender nonconforming students in the hallways,classrooms and washrooms of Nova Scotia's schools.

Halifax, Nova Scotia

Across Canada

What this Means for Nova Scotia's Educators

McInnes CooperLeah Kutcher

1. , R.S., c. 214, s. 1.2. See for example, the Guidelines, page 13.

Human Rights Act

PRESIDENT’S MESSAGEIt is said that there is an ancient Chinese curse that

states “ ”. There are onlyBritish sources that speak to this aphorism, the neareststatement in Chinese is the expression which conveys thesense that it is "

." One thing is certain; these areinteresting times, and one can speculate how they willinform changes to our laws and our education systemgoing forward.

While we have survived Hallowe'en, when youread this message you will be enjoying the holidays andthe New Year. The New Year always brings predictions. I

will not make predictions, but I will pose questions for2015 based on these interesting times.

Nationally, it has not been one of Canada's betterautumns:

- The death of two Canadian soldiersin Montreal and Ottawa, Corporal NathanCirillo and Warrant Officer Patrice Vincent,have at least the markings of terrorism.How will Canadian laws change? WillCanadian school children be able to strollthe halls of our Parliament again? Under

may you live in interesting times

better to live as a dog in an era of peacethan a man in times of war

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what conditions? Will school boards requireeven stricter protocols and release forms toallow field trips to certain sites?- Jian Ghomeshi. The former CBC radiopersonality has now been terminated by CBCfollowing allegations of inappropriatebehaviour. He now faces criminal chargesincluding multiple counts of sexual assault.This story speaks to a larger conversation forCanada, the growing perception of violenceagainst women, the suggested “date rape”culture on campuses. The news reported todaythat there will be a trial in the near future fortwo Ottawa college students who have beencharged with sexual assault, an incident thatprovoked suspension of the school's entirehockey team. As well, the news reported onthe upcoming sentencing for a teenage girlcharged with running a human trafficking ringin Ottawa. Will changes be required for thereporting of incidents in schools to protectstudents, or will new harassment protocols berequired for the workplace?- On October 31 Justin Bourque wassentenced to 75 years without parole forthe murders of RCMP officers in Moncton.This is the harshest sentence handed downin Canada since 1962, the year of thelast execution. Has Canada's criminaljustice system moved from a focus onrehabilitation to one where punishment isthe key? Can we expect stricter/harshersentences for young offenders? Will therebe a strengthening of regulations related toschool access for young offenders aftersentencing? What new protections, if any,may be put in place to protect schools, staffand students?

Other topics that may impact in the New Yearinclude copyright. While educators heralded the changesin 2012 that finally brought a semblance of certaintyfor teachers and students as to the legal parameters thatmust be followed, there is some concern that thereare those who are working diligently with oppositionMPs trying to gain a commitment to re-visit the legislationshould there be a change in government in the next federalelection.

Internationally there are a number of issues thatcould impact our systems:

What will be the protocols when we have ourfirst Ebola case in Canada? Are ourEmergency Measures sites ready? Will there

be a call for more scrupulous provisionsaround quarantine for schools? Families?

What impact will the war in Syria andIraq have, now with Canadian fighterplane engagement? As new terrorist threatsmay emerge, will we see new legislation tobolster security? Will it be balanced, or willsome fear a further erosion of privacylegislation?

One could continue to ask about the Ukraine.Also one could ask, what about Boko Harum?Are the girls free yet? But my last question onthe international front has to do withAmerican politics. As the rich and thepowerful continue to attack, we watch withhorror the dismantling of the U.S. publiceducation system. What, if anything, is theimpact on Canada? While the positivecollaborative practices of stakeholders inCanada continue to serve this country well,there are forces in this country who wouldchampion an American educational model,forces like the Koch brothers.

The following quote from Rolling Stonemagazine gives one perspective on the Kochbrothers:

“

The Koch family of industrialists andbusinesspeople is most notable for its control ofKoch Industries, the second largest privatelyowned company in the United States (with 2013 revenuesof $115 billion). You may ask what does this haveto do with Canada. Well, the Koch brothers export5% of the total oil exports to the United States from thetar sands, about 250,000 barrels a year. Recently, itwas reported

st

If the Koch brothers didn't exist, the leftwould have to invent them. They're theplutocrats from central casting – oil-and-gasbillionaires ready to buy any congressman,fund any lie, fight any law, bust any union,despoil any landscape, or shirk any (tax)burden to push their free-market religion andpump up their profits.”

that Koch Industries ranks as No. 3 or No. 4in terms of all tar-sands lease holders, and No. 1 as anon-Canadian holder. Those leases cover at least1.12 million acres and as many as 1.47 million acres.But most notably for our purposes, it was revealedrecently that the Fraser Institute is subsidized by theKoch brothers. In the last several years, $500,000.00 of

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Koch money found its way into the Fraser coffersfollowing a long history of contributions. The Kochposition in support of anti-union, pro privatization, procharter schools education is well established. Will thisinfluence the direction Canadian public education takes?For the sake of our children I hope not.

So what will the New Year bring? Good question.But I must share a very positive moment from theautumn of 2014. As I drove home to Ottawa fromToronto on Oct 24, after attending a very positiveCEA conference and AGM, I started to see someunusual activity on the 401. Increasingly I sawpeople, firetrucks, and other vehicles lining up onover passes and on the side of the highway as I droveeast. By the time I reached the 416 to Ottawa, I hadit figured out. And when I met the convoy ofvehicles transporting the body of Corporal Cirilloback to his home I, like so many others, pulled overto pay my respects. I marveled at the thousands ofCanadians I had seen, many waiting for many hours to paytheir respects, and there was such a wave of emotion

that washed over me that I carry it yet. O Canada, WeStand on Guard for Thee.

Myles EllisCAPSLE President

1. Julian Brookes, “The Koch Brothers Exposed!” RollingStone Magazine, April 20, 2012.2. See forbes.com/Koch-industries3. Jeanine Molloff, “Koch Industries, Keystone XLPipeline....A BP on the Prairie”www.huffingtonpost.com/jeanine-molloff/koch-industries-keystone-_b_829262.html4. Meteor Blades, “Yes, critics, Koch bothers do have moreleased tar sands acreage than any other U.S. oil company”http://www.dailykos.com/story/2014/04/08/1290568/-Yes-critics-Koch-brothers-do-have-more-leased-tar-sands-acreage-than-any-other-U-S-oil-company5. Olivia Ward, “Billionaire Koch Brothers are big oil playersin Alberta”http://www.thestar.com/news/world/2014/07/06/billionaire_koch_brothers_are_big_oil_players_in_alberta.html

BEYOND STICKS AND STONES: SASKATCHEWAN’S ACTION PLAN TO

ADDRESS BULLYING AND CYBERBULLYING

The anti-bullying initiative released late last yearby the Government of Saskatchewan's Ministry ofEducation,

, was the culmination ofextensive consultations with Saskatchewan residents; areview of the relevant literature on bullying (supportedby promising practices found in other jurisdictionsto combat bullying behaviours); and by discussions withother Governmental ministries. The Report points to theneed for an anti-bullying initiative in Saskatchewanbecause “

.” Further, theReport urges action because the risk bullying poses notonly to the well-being and safety of children but also tostudent engagement in school can minimize the ability ofthe Province's children and youth to reach their “fullpotential” in order to achieve present and future success.Linked to the tragic deaths of Canadian teens, bullying andcyberbullying have been catapulted into the nationalspotlight, and the 's timing follows in the wakeof legislated changes around bullying and cyberbullyingin other provinces, such as Nova Scotia, Québec, andOntario. Within this larger context, the Report's sixrecommendat ions and the steps to achievethem, should be welcome news for all stake-holders —parents, teachers and school officials,the larger community itself and, by no means least, the

children and youth of Saskatchewan.

The 's recommendations are based onthemes that emerged from the study:

· building consistency across the system;· working across government to align

priorities;· supporting students to develop responsible

and appropriate online behaviour; and· engaging children and youth in creating

solutions to build positive relationships.

The recommendations, and their correspondingactions, are geared to prevent bullying, to enable childrenand youth to report bullying incidents, and to ensure therewill be timely follow-up and resolution. The Report'srecommendations for the Government of Saskatchewanare as follows:

1. Work with education sector partnersto establish consistent policies andprotocols to identify bullying as wellas to report, respond and resolve anincident in multiple contexts, using arestorative approach through therenewal of the Caring and RespectfulSchools policy and by using theOffice of the Advocate for Childrenand Youth as an avenue to address

Saskatchewan's Action Plan to AddressBullying and Cyberbullying

too many children and youth in Saskatchewanare targets of bullying and cyberbullying

Action Plan

Action Plan

5

unresolved bullying issues forchildren and families.

2. Develop an anonymous smartphone-friendly internet reporting tool andcontinue to support the toll-free KidsHelp Phone.

3. Direct that the Ministry of Educationwork with other ministries regardingthe upcoming federal legislation andits implications for Saskatchewan.

4. Work with school divisions top r o v i d e t e a c h e r i n s t r u c t i o n a lsupports and student resources toteach appropriate and responsibleonline behaviour to all Kindergartenthrough Grade 12 students.

5. Partner with the Sask Tel “I amStronger” campaign to house theiranti-bullying resources, supports andan anonymous reporting tool on the“IAm Stronger” website.

6. Work with school divisions and othercommunity partners by engagingyouth in creating solutions to addressbullying and cyberbullying and tohelp build positive relationships inour schools and communities.

The also points to essential learningsgleaned through the consultative process which includethe need for consistent, comprehensive, collaborative, andcreative policies and practices aimed at preventing,responding to, and intervening in, bullying situations.One focus for the Report is to emphasize that battlingbullying requires the commitment of the entirecommunity. As valuable guides, these recommendationswill serve to direct policy creation and implementation atboth the provincial and the school division levels in orderto combat bullying behaviours. While space does notpermit a detailed description and analysis of each stepidentified in the , a few key proposals shouldbe highlighted.

Much like the prairie wind, legislation and policyare two unseen but powerful forces which can effectpositive change for students, parents, and communities asthe Saskatchewan Government seeks to address bullyingin the Province's schools indeed, they have been identifiedas powerful foundational elements that can “set theframework and context for change.” Support forlegislative changes to address bullying is not new, and inits proposal to work across government to align priorities,

the calls for the Saskatchewan Ministries ofEducation and Justice, along with theAttorney General, to“

” and its proposed changes tothe with respect to cyberbullying. Itremains to be seen whether or not the FederalGovernment's Bill C–13 will exert any impact on futureamendments to Saskatchewan's provincial legislation(including any changes to the such as anyenhancements to the powers of school principals toaddress bullying behaviours).

In its quest to create the conditions for consistentpractices, procedures, and responses to bullyingbehaviours, the Report notes the difficulty in forging adefinition of bullying that is all-encompassing.Nonetheless, the does provide a definitionwhich, it concludes, may require future revision to ensureits continued applicability to the unique Saskatchewancontext. Arguably, embedding a definition in thePreamble to any legislative amendments, accompanied byany common belief statements around bullyingbehaviours (such as the s identification ofrestorative principles rather than punitive approaches),could help to provide guidance and direction indetermining appropriate responses to bullying andcyberbullying.

Since the identifies the need for greateropportunities “

,” a key strategy is the proposed establishment ofa partnership with internet service provider Sask Tel's “

” campaign and the use of its website not onlyas a repository for anti-bullying resources but also as ananonymous reporting tool. The envisions themobile-enabled online tool as facilitating a timelyresponse to reports of bullying incidents through follow-up by ministry officials in collaboration with schooldivision officials. Building upon this recommendation foranonymous reporting, the tracking of these incidentscould discover if bullying trends or patterns existthroughout the Province and could also assist indetermining the magnitude of the problem. At the sametime, data collection and the monitoring of incidents couldserve to inform bullying prevention and interventionstrategies and to direct future resource development andprogram planning.

Embedded in the strategies designed to buildconsistency across the system, the endorses

Action Plan

Action Plan

Action Plan

assess the appropriate legislative action required toaddress bullying and cyber bullying, recognizingupcoming federal legislation

Criminal Code

Education Act

Action Plan

Action Plan'

Action Planto report bullying incidents across the

ProvinceI

Am Stronger

Action Plan

Action Plan

Assessment of Current Provincial Legislation

Reporting of Bullying Incidents

Establishment of Safe School Coordinator

6

the appointment, at the Ministry-level, of a Safe SchoolCoordinator who would help school divisions investigatereports of bullying. Additionally, a second proposalsuggests that a “ ” be createdwhose mandate is to provide recommendations that“

.” Both proposals have thepotential to address bullying in a much-needed and morecoherent and unified fashion through the development andcoordination of programming, resources, and services, atthe Provincial level, with a focus upon school safety.Additionally, the involvement of the Advocate forChildren and Youth would provide not only education butalso support for conflict resolution in issues of bullying.Noting that “ ” suchas school codes of conducts and restorative practices, arebeing examined nation-wide, the recommendation for anadvisory board to consider safety policies and practiceswould help to align the province with other jurisdictions interms of school safety protocols.

Specific actions to “

” are essential steps in the Action Planwhich have implications for educators and schooladministrators in their daily work with students.Strategies such as training in restorative practices forthose who work within the educational community,supplying funding for “ ” inschool divisions throughout the Province, and promotinghuman rights and citizenship education and resources inschools, in addition to providing educators with in-serviceopportunities and guidelines for teaching and modellingdigital citizenship and the responsible use of technology,are outlined. As well, the Report proposes that schoolsthroughout the Province should support the establishmentand maintenance of Gay-Straight alliances (GSAs) inorder to support “

.”

While the Government of Saskatchewan'sis indeed shorter than the eighty-five

recommendations suggested by the comprehensive NovaScotia Task Force Report, nonetheless, it provides a solidfoundation for the work it proposes and upon which theStudent First initiative can build in order to supportstudent safety and well-being in Saskatchewan. The

's recommendations hold much promise. As

the actions outlined in the Report are actualized andimplemented, they will be instrumental in helping to meetthe needs of Saskatchewan children and youth withrespect to anti-bullying, using strategies that arecorrective, educative, equitable, and supportive.

Regina, Saskatchewan

1. Government of Saskatchewan. Ministry ofEducation. Saskatchewan's Action Plan to AddressBullying and Cyberbullying, November 14, 2013, onlinewww.education.gov.sk.ca//Anti-Bullying/campeau-report.pdf (hereafterAction Plan).2. Ibid., p. 5.3. Ibid., p. 10.4. For example, S. Shariff, A. Wiseman, and L.Crestohl, “Defining the Lines Between Children'sVulnerability to Cyberbullying and the Open CourtPrinciple: Implications of A.B. (Litigation guardian of) v.Bragg Communications Inc.,” (2012) 22(1) EducationLaw Journal point to the suicide of British Columbiateenager Amanda Todd, in October, 2012, which wasattributed, in part, to cyberbullying at 3–4.5. See, for example, Bill 61, Cyber-safety Act, S.N.S.2013, c.2; Bill 56, An Act to Prevent and Deal withBullying and Violence in Schools, 2012, Québec NationalAssembly, 2nd Sess, 39th Leg.; and Bill 13, TheAcceptingSchoolsAct, S.O. 2012, c. 5.6. Supra note 1 at 6.7. Saskatchewan Learning. (2004). Caring andRespectful Schools. Regina, SK: Government ofSaskatchewan.8. Supra note 1 at 11–12.9. Ibid., at 7.10. A. W. MacKay, Respectful and ResponsibleRelationships: There's no App for That (Halifax, NS:Nova Scotia Task Force on Bullying and Cyberbullying2 0 1 2 ) a t 4 4 , o n l i n e :http://www.ednet.ns.ca/taskforcereport.shtml11, For example, J. McKinlay, R.J. Konopasky, A.Konopasky, A.W. MacKay, & T. Barrett. Bullying:Finding schools liable changes everything. In Roderick C.Flynn (Ed.), CAPSLE 2011: Rights & Reason: ShiftingTides in Law and Education. Proceedings of the Twenty-Second Annual Conference of the Canadian Associationfor the Practical Study of Law in Education, held in St.John's, NL, May 1-3, 2011 (Toronto: CAPSLE, 2012) whonote that while litigation alone is not enough to enact thenecessary change in the culture, discourse, andperceptions of bullying, “legislation” is one of thenecessary forces of change they cite at 144.12. Supra, note 1 at 17. A brief overview of the federal

provincial advisory body

renew and align school division bullying and studentsafety policy and protocols

student safety and security practices,

establish guidelines,additional tools and training to better prepare peopleworking within the education sector to prevent andrespond to bullying

basic risk assessment training

safety, inclusion and respect for humandiversity

ActionPlan

Action Plan

Nora M. Findlay

Implications for In-School Administrators andEducators

Conclusion

Regina Public Schools

7

legislation is presented by I. Pickard and K. Amos,“Cyberbullying: Lessons Learned from the Nova ScotiaExperience and What It Means for Educators” (2014).Paper presented at the Canadian Association for thePractical Study of Law in Education Conference, held inCharlottetown, P.E.I.,April 27-29, 2014, at 16.13. Criminal Code, R.S.C. 1985, c. C-46.14. Bill C–13, Protecting Canadians from Online CrimeAct, 2013, 2nd Sess, 41st Parl., received Second ReadingonApril 28, 2014.15. The , S.S. 1995, c. E-0.2.16. It is worthwhile noting that in its submission on BillC–13, Protecting Canadians from Online CrimeAct, (May2014), Ottawa, ON, the Canadian Bar Association argues“the criminal law should be considered a tool of last resortwhen dealing with young offenders, and not all incidentsof cyberbullying by youths should be characterized asc r i m i n a l a c t s ” a t 3 , o n l i n e :www.cba.org/cba/submissions/pdf/14-33-eng.pdf.17. Supra, note 1 at 9. For an insightful analysis of thechallenges that crafting a definition of bullying present,see supra, note 10, at 39–47.18. For example, supra note 5, Bill 61, Cyber-safety Act,S.N.S. 2013, c.2. For a perspective on whether a definitionshould be included in legislation, see CoordinatingCommittee of Senior Officials (CCSO) CybercrimeW o r k i n g G r o u p , R e p o r t t o t h eFederal/Provincial/Territorial Ministers Responsible forJustice and Public Safety, Cyberbullying and the Non-consensual Distribution of Intimate Images (June 2013) at4, online www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/pdf/cndii-cdnii-eng/pdf19. Supra note 1 at 9; see also supra, note 10, at 62–64.20. For a concise overview of provincial and territoriallegislative and non-legislative responses to bullying, seesupra, note 18, Coordinating Committee of SeniorOfficials (CCSO) Cybercrime Working Group, at 6–8.21. Supra, note 1, at 14.22. See “IAm Stronger” at .23. The Action Plan claims “72 percent of studentswould report cyberbullying if it could be doneanonymously,” supra note 1 at 14. As well, the SupremeCourt of Canada affirmed the need for anonymousreporting in ., 2012SCC 46. [2012] 2 S.C.R. 567. The Sask Tel anti-bullyingreporting tool was officially launched on June 24, 2014,s e e o n l i n e a thttp://iamstronger.ca/uploads/editor/Online%20reporting%20tool%20Letter%20-%20english.pdf24. Supra note 1, at 14.25. See, for example, supra note 10, at 19–21, whichexplores the need for data collection.26. Supra note 1, at 14; compare to supra, note 10, at 36,for example.

27. Supra note 1, at 14.28. Ibid.29. Ibid., at 2430. Ibid., at 13.31. Ibid. For e.g., the Ontario Ministry of Education, (5December, 2012), Policy/Program Memorandum No.128,requires school boards to align their own code of conductwith the existing provincial Code of Conduct, withstandards for behavior that are applicable to students,parents and community members, and outlines the rolesand responsibilities of all stakeholders in developingeffective practices, at 5–7; it is worthwhile to note theOntario provincial Code of Conduct prohibits bullyingb e h a v i o r s , a t 4 , o n l i n e a t

.A d d i t i o n a l l y, S . S h a r i f f a n d D . L . H o ff(2007)“Cyberbullying: Clarifying Legal Boundaries forSchool Supervision in Cyberspace,” International Journalof Cyber Criminology 1(1) maintain research hasindicated bullying can be reduced by 50% if adolescentscontribute to the rule-making, at 85, online athyyp://www.cybercrimejournal.com/shaheenhoff.pdf32. Supra, note 1, at 13.33. For example, the identification of the principal's roleas being pivotal in addressing bullying issues ishighlighted on PREVNet (2014, October 23), Fact Sheets:The Role of Teachers & Other Staff in BullyingPrevention, which claims successful bullying preventionand intervention programs have a “proactive [school]principal who prioritizes the program and supports staff todevote time to the program” and that a commitment by theprincipal to time and resources to prevent bullying is“associated with improvements” (n.p.), online athttp://www.prevnet.ca/research/fact-sheets/the-role-of-teachers-and-other-staff-in-bullying-prevention34. It is worthwhile to consider that in arguing for“restorative practices” as part of schools' disciplinaryframework, K. Waters “Overcoming legal barriers tousing restorative practices in Ontario schools” in RoderickC. Flynn (Ed.), CAPSLE 2010: The Rocky Road Ahead:Balancing Competing Interests/Concilier les interestdivergents une périlleuse escalade. Proceedings of theTwenty-First Annual Conference of the CanadianAssociation for the Practical Study of Law in Education,held in Calgary, AB, April 25–27, 2010, (Toronto:CAPSLE, 2011) notes that since Ontario's Education Act,S.O. 1990, c. E-O requires the “consideration andapplication of the mitigating and other factors” in everycase of student misconduct, “administrators needresources, training, skills and support” inorder to findappropriate consequences in disciplinary issues, at 252.This notion is echoed in PREVNet,(2014, October 23),Fact Sheets: Bullying and School Climate, where researchhas found that “school administrators need enhanced

Education Act

A.B. v. Bragg Communications Inc

www.iamstronger.ca

http://www.edu.gov.on.ca/extra/eng/ppm/128.pdf

8

training in the implementation of effective, educationald i s c i p l i n e p r a c t i c e s ” ( n . p . ) , o n l i n e a thttp://www.prevnet.ca/research/fact-sheets/bullying-and-school-climate35. Supra, note 1, at 14.36. Ibid, at 13–15, 19–20.37. Ibid., at 21; a point of comparison is supra, note 5,Bill 13, TheAccepting SchoolsAct, S.O. 2012, c. 5, wherethe provision for GSAs is encased in legislation.38. Supra, note 10.39. Introduced in summer, 2013, the goal of the StudentFirst approach is “to ensure that all students inSaskatchewan, in every corner of the Province, have theeducation and skills to succeed when they graduate fromhigh school. This approach also reflects a commitment toachieving education targets outlined in Saskatchewan'sPlan for Growth,” Government of Saskatchewan,Ministry of Education,Annual Report for 2013-2014, at 3.

The extensive Student First consultative engagementprocess with students, teachers, parents, and communitymembers was held Province-wide from November, 2013,to June, 2014. The findings are contained in the StudentFirst Engagement Discussion Guide (September 2014),prepared by R.A. Malatest & Associates Ltd., where “theintent is to use the findings to inform our work movingforward and to continue putting the student at the forefrontof the education system,” Student First Engagements (24,O c t o b e r , 2 0 1 4 ) , o n l i n ehttp://www.saskatchewan.ca/government/have-your-say/student-first/student-first-engagements40. The Action Plan notes its recommendations willinform the Student First “engagement process,”and, inturn, the Student First consultations “will inform andfurther prioritize the key actions associated with studentsafety using a Student First perspective,” supra, note 1, at6.

A recent Audit of the Tri-County RegionalSchool Board (“Tri-County”) in Nova Scotia containeda number of recommendations for improvement atthe board and senior management levels. In doing so,the Audit provides guidance that may be helpful toeducation stakeholders across the country. The issuesflagged by the Audit Report to the House of Assembly(“the Report”) may well be familiar challenges to many ofyou.

The recommendations are set out at pages 28-44 ofthe Report. In accordance with the Auditor General Act,theAuditor General of Nova Scotia delivered the Report tothe Speaker of the House of Assembly on November 19,2014. All of the information provided in this article issourced from that Report.

The Tri-County Regional School Board is one ofeight school boards in the Province. It servesapproximately 6,100 students in 28 schools over 7,000square kilometers. The Tri-County region is a bilingualarea with French Immersion and French Second Languageprograms provided. Eleven members sit on the governingboard. Each member also sits on the EducationCommittee, a standing committee of the governing board.(Page 29)

As is the case elsewhere, the Superintendent ofTri-County is responsible for the overall operation ofthe Board's head office and schools and the supervisionof the Board's employees, including 47 head office

staff, 466 teachers and principals and 351 non-teachingstaff. Operational and management decisions at theschool level are the responsibility of the principals andvice-principals.

The objectives of theAudit, which was conducted inthe summer of 2014, were to determine if “the Tri-CountyRegional School Board's:

governing members are providingadequate oversight related to the deliveryof educational services within theBoard's schools: andmanagement team provides adequateplanning and monitoring of educationalservices delivered at the school level.”

The over-all conclusion of the Audit with respect toTri-County was that, “[n]either the governing Board normanagement at the Tri-County Regional School Board isfully meeting their respective responsibilities in theoversight and monitoring of the delivery of educationalservices in their schools.” This conclusion is, of course, aserious one, going to the very heart of the duties expectedof each entity.

I should pause to note that the Report makesclear that both the Tri-County Board and management

The Tri-County Regional School Board

Audit Objectives and Process

Summary of Conclusions

·

·

RECOMMENDATIONS STEMMING FROM THE AUDIT OF

THE TRI-COUNTY REGIONAL SCHOOL BOARD

9

acknowledged the deficiencies that had been identified,and accepted the recommendations of the Auditwhi le aff i rming an intent ion to implementthe recommendations to the extent possible withinthe context of the limited resources available. Theconstraints posed by limited resources are certainlya hurdle that will be familiar throughout the educationsector across Canada. In fact, some or all the deficienciesidentified by the Audit team will mirror the challengesfaced in many contexts across the country. Many of thetouchstones for the audit team are vulnerable areas whichare affected by lack of time, personnel, resources or otherfactors. Nonetheless, all of the areas reviewed in theAuditReport are matters of importance which should not beoverlooked.

In terms of the more specific areas of concerninvolving the Board, theAudit Report noted commented asfollows:

“The governing Board has not clearly definedits role and responsibilities in comparison tothose in management,” and that it “has notdefined and communicated its informationneeds in order to effectively carry out itsresponsibilities.”.

The Audit took note of the fact that the Board “doesnot have a process to assess its own performance andmodify, as necessary, how it operates.” More particularly,theAudit concluded that the Board:

“…[did] not receive sufficient informationo r s p e n d a p p r o p r i a t e e f f o r t o nthe fundamental role of educatingstudents. The Board does not request orreceive important information to knowwhether schools are planning and makingsufficient progress towards achievingbusiness plan goals, the academicperformance of students is meetingexpectations, and the development needs ofteachers and principals are met. Roles andresponsibilities need to be clearly defined sothat they are understood by both thegoverning board and management.”

To address these concerns, the Audit recommendedthe following:

The governing Board of the Tri-County

Regional School Board should define itsrole and responsibilities and the informationrequired from management in order to fullycarry out its duties in educating students.Board members should also complete anannual self-assessment of their performanceand address any identified weaknesses in atimely manner.

The Audit then flagged the fact that, althoughthe Board had identified “improving student achievementin numeracy and literacy as priorities,” it had“not undertaken an in-depth analysis to determine theroot causes in its schools which are contributing tothe underachievement of students in these two areas,”and it was “not effectively overseeing educationalresults.”

More specifically, the Audit Report identified adeficiency in the monitoring of and response to studentprogress in the priority area of numeracy, as well as in othernon-priority subject areas, and of students withindividualized program plans. The Report noted that theBoard had not requested or received any informationregarding students with individualized program plans, andrarely discussed student performance at either Board orEducation Committee meetings.

To address this deficiency, the Audit recommendedthat:

The governing Board of the Tri-CountyRegional School Board should request thatmanagement determine and address thereasons for the unsatisfactory performance ofits students in literacy and numeracy. Inaddition, the Board should regularly reviewreports on student performance, includingstudents with individualized programs, tohold management accountable for thedelivery of educational services to itsstudents.

Next, the Audit Report noted that, “[a]lthoughmanagement directed schools to create annual schoolimprovement plans, the goals outlined in the plans did notalways align with the Board's priorities,” and that“[r]eporting by schools on progress towards their goalswas limited.”

This observation led to a third recommendation:

The governing Board of the Tri-CountyRegional School Board should ensure thatappropriate school improvement plans align

Board Issues

Recommendation 3.1

Recommendation 3.2

Recommendation 3.3

10

with Board goals and oversee whetherexpected results are being achieved.

Fourth, the Audit noted that the Board did notoversee teacher and principal evaluations and did notregularly receive summary information about thoseevaluations. As a result, the Board was “

”To address this cluster of challenges, the Audit

Report includes the following recommendation:

The governing Board of the Tri-CountyRegional School Board should ensurethat teacher and principal evaluationsare completed according to Board policy,that teachers are adhering to the provincialprogram of studies, and that staffdevelopment needs are being met.

Finally, with respect to the Board, theR e p o r t i d e n t i f i e d t h a t t h e B o a r d d i d n o tappropr ia te ly eva lua te the per fo rmance ofsuperintendents. In the view of the Auditors, theprocess followed by the Board “…did not link theSuperintendent's performance to the responsibilities of thepositions under the Education Act or the Board businessplan.” As a result, the Audit Report recommends thefollowing:

The governing Board of the Tri-CountyRegional School Board should evaluate theSuperintendent's performance against theresponsibilities of the position and take anynecessary action.

With respect to the management team, theAudit Report first identified a concern thatmanagement did not effectively monitor theschool improvement process. More specifically, theAudit stipulates that, “it is management's responsibilityto direct and assist schools to develop goals andaction plans that align with the Board's goals andreport periodically on progress in meeting thosegoals.”

To address these concerns, the Audit set out thefollowing recommendation, which is once again quoteddirectly from the Report.

Tri-County Regional School Boardmanagement should ensure that schoolimprovement plans and annual reports arecompleted on a timely basis, include specificgoals and strategies to address Board andschool priorities, and report progress onachieving goals.

Next, the Audit Report reiterated the identifieddeficiency in the monitoring and response to studentprogress in the priority area of numeracy, in other non-priority subject areas, and students with individualizedp r o g r a m p l a n s . A c c o r d i n g l y, t h r o u g h t w orecommendations, it tasked management with fulfilling itsrole in that regard:

Tri-County Regional School Boardmanagement should regularly monitor theperformance of students in all subject areasand take the required action to ensure studentachievement meets expectations.(Page 40)

Tri-County Regional School Boardmanagement should appropriately monitorthe performance of students withindividualized program plans and takeneeded action to ensure those studentsprogress as expected.

The Report then turned to the issue of teacherand principal evaluations, noting that althoughthe evaluations are completed, improvements wereneeded. In particularly, more specific recommendationswere sometimes needed, and follow-up was not alwaysmade to confirm that the recommendations had beenimplemented and to ascertain whether performance hadimproved. As a result, the Audit made the followingrecommendation:

Tri-County Regional School Boardmanagement should ensure the evaluationprocess includes recommendations forimprovement that are specific and that timelyfollow-up is completed to determine ifappropriate progress has been made. (Page42)

Finally, the Audit identified areas for improvementregarding teacher and principal Professional Growth

…not fully awareof staff development needs, whether evaluations arecompleted according to policy, and whether schools areadhering to the public school program as required by theEducation Act.

Recommendation 4

Recommendation 5

Management Issues

Recommendation 6

Recommendation 7

Recommendation 8

Recommendation 9

11

Plans. The Audit found limited evidence of review ofteacher plans by principals, and inadequate linkagebetween the contents of those plans and the schoolimprovement plan or Board priorities

Tri-County Regional School Boardmanagement should ensure that professionalgrowth plans are completed and thatplans link to Board and school improvementgoals.

As can be seen from a review of the summaryof concerns and recommendations made, four key areasof deficiency identified in Tri-County were: (i) clearident i f icat ion of Board versus managementresponsibilities; (ii) ensuring timely access and review ofrelevant information; (iii) oversight and evaluation andfollow-up; and (iv) monitoring of progress towardsmeeting identified goals.

Boards and management across the countryshould focus on all of the areas reviewed in theAudit Report. It might be prudent for boardand management stakeholders to conduct aself-assessment - using the factors identified in theTri-County Audit Report section - to ensure that each

of these issues is receiving appropriate attention inevery region.

Moncton, New Brunswick

1. Audit Report, p.29.2. Ibid., p.30.3. Ibid., p.28.4. Ibid., p.31-32.5. Ibid., p.32.6. Ibid. p.32-33.7. Ibid., p.28, 33 and 34.8. Ibid., p.35.9. Ibid., p.35.10. Ibid., p.36.11. Ibid., p.36.12. Ibid., p.36.13. Ibid., p.37.14. Ibid., p.37.15. Ibid., p.3816. Ibid., p.40.17. Ibid., p.41.18. Ibid., p.42.19. Ibid., p.42-43.

Recommendation 10Begley Lordon

Judy Begley

THREE TOP REASONS TO ATTEND

THE NEXT CAPSLE CONFERENCE

If you come to Kelowna, B.C. for our nextCAPSLE Conference from April 26-28, 2015, you willsurely enjoy the fine hotel, the renowned scenic winecountry, opportunities for wine tasting and buying, as wellas Saturday's event choices - a vineyard tour or a nine holegolf game.

While these are all great reasons to come toKelowna, I believe the three best reasons to attend theConference are its value, its relevance, and the networkingopportunities it provides.

CAPSLE stands for The Canadian Association forthe Practical Study of Law in Education. Quite simply,CAPSLE offers the best value in professionaldevelopment for those of us whose work relies on ourknowledge of 'law in education.' Professionaldevelopment can be very pricey. You would be hardpressed to find a similar conference - with so manyexcellent presenters and timely topics to choose from, fornearly three days, for the (approximately) $600registration.

We need relevant information. We need tostay current. Arbitrations and court cases can change

the landscape and affect labour-managementconversations. It is at the CAPSLE Conference thatwe can hear intelligent, differing perspectives on theimplications of arbitration decisions and statutes.

And exactly who are 'we'? Who attends CAPSLEconferences? Anyone who works in a school system inCanada, whose work is informed by current law as itrelates to education. We can meet superintendents,teachers' union officers and staff, HR managers,principals, elected trustees, lawyers and grievanceofficers. Each year, our circle of associates can grow as wemeet people in the same role as us, or from the other side ofthe 'table'.

As a law conference for educators, Kelowna2 0 1 5 p r o m i s e s t o p r o v i d e m e a n i n g f u lprofessional development at a reasonable cost in a lovelyscenic setting.

Did I mention the wine?

Vancouver, British Columbia

Kerry RichardsonBritish Columbia Teachers' Federation

12

YOUR EXPERIENCES; YOUR COMMENTS; YOUR CAPSLE!

Arecent survey of CAPSLE members revealedan astonishing 15% of responding CAPSLEMembers had no awareness that they could submit anarticle to CAPSLE Comments.

As CAPSLE Comments Editor, I am here to tellyou: you can submit an article to CAPSLEComments and moreover, you should!

You don't have to be a lawyer (but commentsfrom lawyers are welcome). You don't have to be aneducator (but comments from educators arewelcome!) You don't even have to be a CAPSLEmember (but that would certainly help!)

CAPSLE thrives on the engagement andparticipation of members like you. The memberswho attend our Conferences; read our publications;who day-in-and-day out live the professionalexperiences – in law and in education -that CAPSLEwas founded to share.

CAPSLE wants to hear from you. In writing.Soon!

Articles for CAPSLE Comments range fromshort (up to 250 words) to longer (3-5 pages). Thesubject matter of our articles extends from sharingnews about a particular project or initiative (e.g.libraries projects in Africa); to case comments; toreflections upon personal experiences (in educationor the law) or current trends in schools (onlinebullying or text use). Any reasonable subject mattertouching education and/or the law will be considered.

I invite you to share 2015 (and beyond) withCAPSLE Comments and let CAPSLE Commentsshare the NewYear with you!

Please send your submissions for considerationto info@capsle.ca.

Thank you! Best wishes for a Happy HolidaySeason and Prosperous 2015!

may

and

be yours during this

and throughout the

!

- your CAPSLE Editor, Secretariat and Board of

Directors

PEACE, JOY, HOPE

HAPPINESS

HOLIDAY SEASON

NEW YEAR