Editor’s Note: This case was edited by the Court for publication and has been anonymized to protect vulnerable individuals.

Facts
In May 2023, an incident occurred in a grade 8 classroom of Sakku School in Coral Harbour, Nunavut. Michelle Wolf (the Teacher) was teaching grade 8 math when a grade 7 student (the Student) entered the classroom to retrieve his hat. While in the classroom, another student with whom the Student had difficult relations took the hat and ran away. A chase ensued, with the students running around the classroom, including on top of desks, impacting other students. The Teacher went to the hallway to call for help, but nobody came.

The Teacher went back into the classroom. The boys didn’t stop. The Teacher reached out and grabbed the Student’s hoodie by the waist to stop him, hurting his neck. The Teacher had no intention of hurting the Student. There was no other way she could stop the students from chasing each other in the classroom. The Student said he was going to tell the principal. The Teacher told him to go ahead.

The Student reported the incident to the principal. Months later, after discussing the incident with another teacher, police officers became involved.

Cause of Action
The Teacher was charged with one count of assault on the Student contrary to Section 266 of the Criminal Code, RSC 1985, c C-46.

The Teacher’s defence was based on Section 43 of the Criminal Code, which justifies a schoolteacher’s use of force on a pupil to correct behaviour. The use of force must be reasonable under the circumstances for the defence to be available.

Legal Issue
The legal issue was whether the Teacher was guilty of criminal assault. Determination of the issue involved consideration of whether the Teacher was permitted to use force for a corrective purpose, and whether the force used was reasonable in the circumstances.

Decision
The Teacher was found not guilty of the charge against her. The Court was satisfied that the Teacher’s action was undertaken for a corrective purpose and was reasonable in the circumstances.

Reasons

Presumption of Innocence and Burden of Proof
In a criminal trial, it is essential for a trial judge to bear in mind four fundamental legal concepts: presumption of innocence, burden of proof, reasonable doubt and assessment of evidence (R. v. M.V., 2025 NUCJ 10 at paras 14-19). At trial, an accused does not have to prove anything, testify or call evidence. The presumption of innocence remains throughout the trial and is only defeated when the Crown satisfies the court that the accused committed each essential element of the offence beyond a reasonable doubt (R. v. Oakes, (1986) 24 C.C.C. (3d) 321 at paras 32-35).

Reasonable doubt is based upon reason and common sense arising logically from the evidence (or absence of evidence). Proof beyond a reasonable doubt is closer to absolute certainty than it is to probable or likely guilt (R. v. Starr, 2000 SCC 40 at para 242).

Assessment of Evidence
Evidence presented at trial must be considered carefully and with an open mind. The court decides the evidence to rely upon and may accept some, none, or all of it (R. v. Abram, 2005 CarswellOnt 8197 at para 31). The court must consider the cumulative effect of the evidence (R. v. Knezevic, 2016 ONCA 914 at paras 30-32).

Defence of a Person in Authority
In this case, it was not necessary to determine whether the Teacher intentionally applied force upon the Student. It was conceded. The Teacher admitted to pulling on his hoodie sweater, raising the defence of a person in authority.

Under section 43 of the Criminal Code, every schoolteacher is justified in using force by way of correction toward a pupil in their care, if the force does not exceed what is reasonable in the circumstances. Section 43 is a justification section forming part of the Code since 1892, exonerating an accused where circumstances justify or excuse the impugned conduct. It only applies to the “mildest forms of assault” being a sober, reasoned use of force for the purpose of education or discipline.

When considering the applicability of section 43, a physical assault by a teacher is justifiable only if the intention was correction and the discipline was reasonable under the circumstances (R. v. McSweeney, 1993 CanLII 2839 (NWTSC) at paras 9-10). For the defence to succeed, the force must have been used for education or discipline. The trial judge must assess whether the force used was reasonable in the circumstances.

Here, the Teacher’s testimony made the most sense to the trial judge, who was convinced that she acted to stop the Student from running in her class. She admitted to pulling on his hoodie sweater because she had no choice. There was no evidence that she acted in anger or frustration. She did what she thought was reasonable to stop the situation.

The Teacher was lawfully permitted to apply force on the Student for a corrective purpose. In the Court’s view, the force used was reasonable in the circumstance.

R. v. Wolf, 2025 NUCJ 12 (Nunavut Court of Justice).

Authored by Anna Zadunayski LLB, MSc.

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 Facts

James Murphy (the Teacher) was a longstanding (30 year) teacher and coach at St. Thomas Aquinas Catholic Secondary School (the School) in the Dufferin Peel Catholic District School Board (the School Board). He was one of four bargaining unit representatives who dealt with teacher workplace concerns and complaints.

The Teacher had a low tolerance for student misbehaviour or defiance of authority. Over years of cultural and administrative change at the School, the Teacher perceived a complacency or lack of forbearance regarding student unruliness at the expense of teachers and teacher safety. The Teacher was not alone in his view. Others shared similar experiences and concerns. 

In 2017, the School Principal met with the Teacher to discuss an interaction with a student who was out of uniform. The Teacher had asked the student to “please get into uniform” and was met with a belligerent, abusive and confrontational response. In a follow-up letter, the Principal expressed disapproval of what she regarded as disrespect toward the non-compliant student.

In November 2019, students were milling about near the School entrance. As the Teacher departed the area to coach the School football team, he noticed students engaged with a bicycle. A student recklessly threw the bicycle into a bike rack. The unsafe act concerned the Teacher, who concluded that the bike might be stolen. He decided to intervene and returned to the scene, opting to wheel the bike into the School to determine its owner.

A student objected to the Teacher taking the bike, claiming that he was the owner. The student became abusive, swearing at the Teacher and demanding that he release the bike. The student tried to wrestle the bike away, and a “tug of war” ensued. A crowd of 25-30 students gathered around the fracas. The student threatened the Teacher.

From inside the school, a Vice Principal saw what was happening and became alarmed. He went to the scene and heard the student say, “get your fucking hands off the bike.” The Teacher replied, “Or what?” The Vice Principal directed the student and the Teacher to the Main Office for a further discussion. The Teacher suffered a sprained wrist in the altercation. Events were captured (without audio) on CCTV video surveillance.

Once in the School, the student continued swearing and, at one point, threatened to punch the Teacher in the face. The Teacher did not stay long in the meeting, as his football team was waiting for him to direct practice. The student received a four-day suspension for inappropriate language and opposition to authority. The student was not suspended for threatening to assault the Teacher by punching him in the face.

The Teacher learned of the suspension at a social event two days later and was not pleased. Frustrated and demoralized, he believed four days was too lenient. The Teacher wrote to two School Board Superintendents about his concerns. When the student returned to the School, the Teacher told his Principal that he was not going to teach his class because he did not feel safe, and retired to the staff room. He was too angry and emotionally distraught to articulate precisely why he felt unsafe. 

The Principal contacted Health and Safety to report the Teacher’s refusal to teach, and arrangements were made for him to meet with a representative of the School Board’s Joint Health and Safety Committee. The Teacher continued to refuse to teach any classes. Further meetings ensued. The Teacher was ultimately placed on restricted duties and directed not to have contact with any person associated with the School.

“Restriction of duties is a process used from time to time when, for example, a school board intends to investigate a teacher’s conduct. ”

Shortly thereafter, the Teacher was asked to attend an investigation meeting. He initially agreed but went on sick leave prior to the meeting. The Teacher was advised that the meeting would be rescheduled when he was medically cleared to attend.

The Teacher remained on sick leave and then graduated to long-term disability benefits which ran until 2022. The investigation meeting eventually took place in May 2022. The Teacher was questioned about and provided his version of what happened during the bicycle incident. The investigation found that the Teacher spoke to the student inappropriately, aggravating the student and leading to the incident becoming physical. The School Board imposed a one-day unpaid suspension as a result of his conduct in the incident, which the Teacher grieved.

Cause of Action

The Teacher applied under section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1 (the Act) regarding the imposition of restricted duties, alleging he was subject to a reprisal by the School Board, seeking relief under the Act. 

Legal Issues

The legal issues included whether or not the Teacher was made the subject of reprisal by the School Board, which included a determination of whether the Teacher sought enforcement under the Act.

Decision

The Tribunal found no unlawful motivation on the part of the School Board, concluding that the School Board did not breach subsection 50(1) of the Act.  

Reasons

Reprisal By Employer

Subsection 50(1) of the Act prohibits discipline, reprisal or dismissal by an employer where an employee has acted in compliance with the Act or seeks enforcement of the Act. For a tribunal to find that there has been a reprisal, it must be satisfied that an employee was engaged in the exercise of statutory rights, and the exercise of those rights impacted (or was a motivating factor) to an employer’s response.

As a public welfare statute, the responsive burden on an employer is significant, and the Act is given a broad and generous interpretation. Even where legitimate reasons exist for employee discipline, if the employee’s exercise of rights under the Act is considered by an employer, the employee may seek relief under the reprisal provisions.

Seeking Enforcement Under the Act

On the evidence, the Tribunal concluded that the Teacher was upset about the length of the student’s suspension, and that became the point of principle that led to the Teacher’s refusal to carry out his teaching duties. He was frustrated that a student who had threatened and sworn at him, and whose physical resistance to intervention resulted in the Teacher’s bodily injury, received a suspension of only four days. The Tribunal speculated that, had the student received a longer suspension, events would not likely have unfolded as they did, finding that the four-day suspension probably confirmed in the Teacher’s mind everything that he considered wrong with the School administration’s approach to student misconduct.

The evidence supported a finding that the Teacher took a stand on November 12, 2019, seeking for School administration to listen to the concerns about the detrimental effect of unaddressed student misconduct, including threats of violence upon teachers. He refused to teach for that reason, not because of his own fear of violence. He raised health and safety issues by expressing dissatisfaction with the School’s approach, which qualified as seeking enforcement under the Act. His protest could be viewed as demand that his employer take reasonable precautions for teacher safety.

Restriction of Duties

Was sending the Teacher home on restricted duties a reprisal under subsection 50(1)(a) of the Act and, if so, was the School Board’s decision based on the Teacher’s pursuit of the Act’s enforcement?

The Tribunal was satisfied that the School Board’s imposed restriction of duties was not a form of reprisal. Restriction of duties is a process used from time to time when, for example, a school board intends to investigate a teacher’s conduct. In such circumstances, a teacher is assigned home duties and restricted from communicating with staff or attending the workplace in order to avoid compromising the investigation. In this case, the Tribunal found that a restriction of duties was not a threat of discipline, but a procedural step in the investigative process.

In some cases, a restriction of duties can be viewed as a form of penalty or punishment. In the Tribunal’s view, the School Board imposed a restriction of duties as a procedural step pending an investigation that, under normal circumstances, would have happened within days. Ultimately, the only concern investigated by the School Board was the bicycle incident itself, for which the Teacher received a one-day suspension that he grieved, but which he did not claim to be a reprisal under the Act for this proceeding.

James Murphy v. Dufferin Peel Catholic School Board, 2024 CanLII 11735 (ON LRB) (Ontario Labour Relations Board).  

Authored by Anna Zadunayski LLB, MSc.

“Challenging legal issues in Canadian educational settings include professional conduct, human rights, privacy, academic freedom, and more!

How We Can Help

 With years of research experience, Pendulum Law is well-positioned to identify education law trends. We currently see an abundance of human rights complaints by families (many of which are summarily dismissed for similar reasons) and far too many disciplinary and criminal cases where educators abuse their position of trust with students.

Our March Issue covers recurring questions of reprisal for parents who advocate for their child, support for
teachers facing student aggression, and whether parents making a human rights complaint are in a service relationship with their school board. We have included a criminal sentencing decision for a teacher convicted of sexually exploiting a student through social media. Following the theme of our February language rights article, we’ve carefully selected another case engaging the sensitive application of Inuit traditional knowledge and societal values.

Pendulum Law. . .

* Identifies new legal cases highlighting potential areas of risk.
* Summarizes outcomes of recent legal cases applicable to your professional setting.
* Helps you learn from the experiences of others and apply that knowledge to your professional environment.
* Empowers understanding of education law and implementation of best practices.
* Increases awareness and promotes professionalism, helping to avoid litigation.

Our preventive law updates are particularly important for educators, administrators, privacy officers, human rights specialists and legal counsel.

Subscribe Here!

Editor’s Note: This criminal sentencing decision is subject to a publication ban to protect the victim. By an order under section 486.4(1) of the Criminal Code, information identifying the victim may not be published. The case involves details of sexual crimes by a high school teacher against a vulnerable student. While this article has been carefully censored out of respect for the victim, reader discretion is advised. 

Facts

Ryan Turgeon (the Teacher) was an Ontario high school teacher until 2021. In 2017 and 2018, he sexually exploited a vulnerable, underage student (the Student). 

The Teacher was the Student’s Grade 11 and 12 teacher between February and June 2017, and February and June 2018. At 16 years old, the Student was struggling with his sexuality. He sought advice from the Teacher. Knowing the Teacher was gay and had a boyfriend, the Student felt comfortable with him. The Student told the Teacher about his internal challenges and “things” that had happened between himself and another student.

Following the conversation, the Student was left with the distinct impression that instead of offering advice, the Teacher wanted to have a physical sexual experience with him. The Student changed the subject and the conversation ended approximately five to ten minutes later. The Student was uncomfortable with what the Teacher had said, but brushed it off and went on with his day.

Weeks later, the Teacher and Student began communicating through the social media platform Snapchat, which continued to the end of Grade 12. The Student received several graphic, sexually explicit images and videos from the Teacher. No messages accompanied the images or videos, and they did not discuss the materials at school.  

At all times, the Teacher was in a position of trust with the Student. At school, the Teacher asked the Student if he would like to come back to his house to experiment. One time, the Teacher asked if he and another student wished to gain experience and have a foursome with the Teacher and his boyfriend. The Student perceived that the Teacher wanted to have sexual relations with him. The Teacher was ultimately arrested on multiple charges and lost his employment as a result. 

Following a jury trial in April 2024, the Teacher was convicted of making sexually explicit materials available to a child contrary to s. 171.1(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and sexual exploitation (“child luring”) contrary to s. 153(1)(b) of the Criminal Code. The Teacher did not testify at trial, or express remorse for his behaviour.

In a victim impact statement, the Student disclosed that because he felt comfortable with the Teacher, he shared personal information about himself (including uncertainty about his sexuality). As he got closer to the Teacher, he was taken advantage of. He felt violated by the Teacher’s conduct and the knowledge that he was taken advantage of. The Student conveyed that he hoped the Teacher would get help.  

The Teacher abused his position of trust, using sexually explicit materials to lure a vulnerable student (who was struggling with his sexuality) to have sexual relations with him. The Crown sought a three (3) year penitentiary sentence to reflect the principles of denunciation and deterrence, given the aggravating factors in the case.    

Cause of Action

The Court was tasked with determining the facts upon which the jury reached the verdicts of guilt beyond a reasonable doubt, together with a fit, just and proportional sentence.

Legal Issue

Given the primary criminal sentencing objectives of denunciation and deterrence for sexual offences against children, what was a just, fit and proportional sentence in the circumstances?

Decision

Based on the evidence, the Court was satisfied beyond a reasonable doubt that while in a position of trust, the Teacher incited the underage Student for sexual purposes by inviting the Student to attend his home and have sexual relations with him and others. 

The Court found that the Crown’s proposed 3 years in jail was reasonable in the circumstances, even after considering the principle of restraint and mitigating factors highlighted by the Defence. Balancing the relevant aggravating and mitigating factors (and considering the totality of circumstances together with sentences imposed on similar offenders for similar offences committed in similar circumstances) the Court sentenced the Teacher to 36 months in jail. 

The Teacher was required to provide a DNA sample, as both counts were primary designated offences. Pursuant to s. 490.012 of the Criminal Code, the Teacher was required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.   

Reasons

Principles of Sentencing

According to the sentencing principles set out in section 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society, contribute to respect for the law, and maintain a just, peaceful and safe society by imposing sanctions that promote denunciation, deterrence, rehabilitation and responsibility. When courts impose sentences for offences involving the abuse of young people (under eighteen years) primary consideration is given to the denunciation and deterrence of such conduct. A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

 R. v. Friesen, 2020 SCC 9 represented a paradigm shift in the approach to sentencing offenders convicted of sexual offences against children, including child luring (Friesen, para 44). The Supreme Court of Canada sent a strong message to ensure that sentences for sexual offences against children were proportionate, reflecting the far-reaching and ongoing harm caused to children, families and society at large (Friesen, para 5). Noting that reports of child luring tripled between 2010 and 2017, the Supreme Court highlighted the dangers of technology in facilitating sexual offences (Friesen, paras 46-49).

"The sentence imposed was specifically designed to deter other educators who may be inclined to abuse their position of trust by committing sexual crimes against students."

Aggravating and Mitigating Factors

In criminal sentencing, courts consider relevant aggravating and mitigating factors, in the totality of the circumstances of each case, together with similar sentences imposed in analogous cases.

Aggravating features of this case included:

• The Teacher abused a young person under the age of 18;
• He not only abused a position of trust as the victim’s high school teacher (Criminal Code 718.2(a)(iii.1) but did so by taking advantage of a vulnerable student struggling with his own sexuality, increasing the degree of responsibility and gravity of the offence (Friesen, paras 126-133);
• The offences significantly impacted the Student;
• The offences were committed on several occasions over several months when the victim was in Grade 11 and 12, indicating a degree of grooming – particularly aggravating when involving young teenagers discovering their sexuality (Friesen, para 153);
• The victim was a LGBTQ2+ youth and especially vulnerable due to societal marginalization – intentionally targeting vulnerable, marginalized children increases moral culpability (Friesen, paras 73 and 90); and
• The Teacher actively attempted more than once to entice the Student to have sexual relations not only with him but also with his adult boyfriend and another student.

In mitigation, the Court considered:

• The Teacher had no criminal record and lived an otherwise pro-social life;
• He had family support including during trial;
• He spent overnight in custody, the equivalent of two days jail;
• He was on bail for several years without further breaches or offences;
• Although the Student was under age 18, he was an adolescent and not a young child;
• The crimes did not involve direct physical contact;
• Images and videos used to attempt to lure the Student did not involve child pornography but consisted mostly of the Teacher or the Teacher and another adult engaged in consensual sexual activity;
• The Teacher never threatened the Student; and
• There was no evidence suggesting the Teacher ever told the Student not to tell anyone about the incidents.

Breach of Trust

The Court found that the high moral blameworthiness and egregious breach of trust by the Teacher – against a vulnerable student who had specifically reached out to him for advice to navigate his own struggles – made the sexual offences very serious. The Teacher violated his position of trust by engaging in predatory sexual conduct targeting a student for his own sexual gratification. In sentencing, the Court denounced that behaviour in the strongest terms. The sentence imposed was specifically designed to deter other educators who may be inclined to abuse their position of trust by committing sexual crimes against students. The Court noted that the breach of trust was a significant aggravating factor in sentencing.

The Court found that it was not for lack of trying that no physical sexual activity took place. Instead, the Court observed that it was due to the Student’s strength of character that he was able to resist the Teacher’s repeated sexual advances. The highly aggressive behaviour together with the serious breach of trust called for a penitentiary sentence.

R. v. Turgeon, 2025 ONSC 406 (Ontario Superior Court of Justice).

Authored by Anna Zadunayski LLB, MSc. 

Implications and Applications: Canada, We Have a Problem

This past year, Pendulum Law has reported numerous criminal sentencing decisions for Canadian teachers who have sexually abused students (R. v. Strapp, 2024 NLCA 7; R. v. L.F., 2024 ONSC 3307; R. v. Findlay, 2024 MBPC 70; R. v. McKay, 2024 MBPC 82). This list does not include cases under appeal or class actions (EM v. Calgary Board of Education, 2025 ABKB 18). In many cases, social media applications including text messaging and Snapchat have played a role in the abuse (and the resulting conviction).  

We have previously reported the significant increase in Canadian incidents of child luring via social media since 2010 (Friesen, ibid, paras 46-49) as well as incidents of non-consensual distribution of intimate images (NCDII) (R. v. Boucetta, 2024 ONSC 1046) also known as “image based sexual abuse.” Of particular concern for scholastic communities is the use of social media for dissemination of sexual images.   

All professionals know that any sexual communication or relationship with a student – including via social media – is prohibited. While law and policy strictly prohibit this behaviour, reported cases continue. Cases that go to trial represent a small number of actual cases.

While sexual misconduct, abuse of power and breach of trust are age old problems, these recent cases show that there is more work to be done in ending child abuse. Educational leaders must continue to address this problem in a serious way. School boards and professional associations can use these cases to retain experts and guide policy development and implementation, together with continuing professional development. Clear communication with stakeholders about the challenging work that is being done to prevent child sexual exploitation and abuse is essential to creating an educational environment that ensures student safety and protects vulnerable youth.  

“Challenging legal issues in Canadian educational settings include professional conduct, human rights, privacy, academic freedom, and more!

How We Can Help

 With years of research experience, Pendulum Law is well-positioned to identify education law trends. We currently see an abundance of human rights complaints by families (many of which are summarily dismissed for similar reasons) and far too many disciplinary and criminal cases where educators abuse their position of trust with students.

Our March Issue covers recurring questions of reprisal for parents who advocate for their child, support for
teachers facing student aggression, and whether parents making a human rights complaint are in a service relationship with their school board. We have included a criminal sentencing decision for a teacher convicted of sexually exploiting a student through social media. Following the theme of our February language rights article, we’ve carefully selected another case engaging the sensitive application of Inuit traditional knowledge and societal values.

Pendulum Law. . .

* Identifies new legal cases highlighting potential areas of risk.
* Summarizes outcomes of recent legal cases applicable to your professional setting.
* Helps you learn from the experiences of others and apply that knowledge to your professional environment.
* Empowers understanding of education law and implementation of best practices.
* Increases awareness and promotes professionalism, helping to avoid litigation.

Our preventive law updates are particularly important for educators, administrators, privacy officers, human rights specialists and legal counsel.

Subscribe Here!

Facts
Matthews Hall (the School) is a private school in London, Ontario, providing instruction to children from junior kindergarten through grade 8. Founded in 1918, the School is a full member of the Conference of Independent Schools and a fully accredited member of Canadian Accredited Independent Schools (CAIS). The School is overseen by a Board of Governors (the Board), responsible for the establishment and direction of policy for the School. Ric Anderson (the Principal) became Head of School in 2015 and was the Principal, Instructional Lead and Chief Executive Officer of the School.

Each year, the School entered into contracts of instruction with families comprised of an Enrolment Agreement, Financial Handbook, Parent and Student Handbook and Parent Code of Conduct, setting terms and conditions for the provision of education services by the School. Re-enrolment was not automatic, and was completed each year. Re-enrolment packages were typically sent home with students in December, and returned by families in March.

A family (the Applicants) enrolled at the School in 2012. Their second child became school age in 2016 and also enrolled at the School. The parents were doctors. The children were South Asian and Hindi. Each year, the Applicants were provided with a re-enrolment package and re-registered at the School without incident. In 2020, the Applicants did not receive a re-enrolment package. They contacted the School, and were advised that they would need to meet with the Principal to discuss re-enrolment.

In January, the Applicants wrote to the School requesting a meeting. The Principal was away, chaperoning the Middle School ski trip. Despite this, the Applicants demanded a meeting given that time had already been scheduled away from work for parent teacher interviews. The meeting was not possible as requested and was scheduled for February 4, 2020.

On February 1, 2020, the Principal’s wife was admitted to hospital with metastatic cancer. She died on February 4, 2020. On February 14, 2020, the wife of the School gym teacher also died of cancer. It was a difficult time at the School. The Applicants asked to meet with the Assistant Head, but were told that she was unable to meet with them without the Principal, who was on bereavement leave.

The Principal retuned to work on March 4, 2020. That day, the Applicants wrote to the Board about scheduling a meeting to discuss re-enrolment, noting that their daughter was having trouble coping with the uncertainty around returning to the School. In their correspondence they stated:

“For some reason we have not been provided re-enrolment packages by the School this year … Well over a month has passed without a meeting with the School. While we appreciate that Mr. Anderson is going through a difficult time, we are going through difficult time ourselves: our daughter is developing an anxiety disorder from this dismissal from the School … Given the circumstances and Mr. Anderson’s prolonged absence from School this is simply not acceptable.”

Later that day, the Board advised that the issue of re-enrolment would be addressed by School administration, not the Board. The Applicants immediately wrote to the Assistant Head, insisting on a meeting as soon as possible. The Principal responded, indicating that he would lead the meeting after March break, near the end of March. The same day, the Applicants again wrote to the Board, asking that the meeting be expedited. The Board responded that it would not mediate the matter. A meeting was ultimately scheduled for March 31, 2020.

On March 17, 2020, the Province of Ontario declared a state of emergency due to the COVID-19 pandemic. The School was closed. The March 31, 2020, meeting with the Applicants was cancelled. In April 2020, School instruction went online. The Applicants asked for a virtual meeting by Zoom or phone call. The Applicants again wrote to the Board to request a meeting, explanation or apology.

The Principal responded in May 2020 that a meeting would be held once pandemic restrictions lifted. By that time, word had spread that the family was not returning to the School. The Principal wrote:

“… we understand from communication shared with your children’s teachers that you have made the decision to pursue other education options next year. … We appreciate you informing us of your decision and wish you and your children the very best in the future.”

The Applicants still wished to meet to discuss what transpired regarding re-enrolment. The Principal responded that the School would contact the family regarding an exit interview when COVID-19 restrictions were lifted. The Applicants again requested a virtual meeting.

In June 2022, the Principal advised that no meeting would take place. It was “… clear that meeting at this point would serve no useful purpose.” The Principal referenced growing concerns about communication and a vocal distrust of School leadership, indicating the Applicants had made a lack of trust and dissatisfaction clear on multiple occasions.

The family ultimately enrolled in a different school.

Cause of Action
In January 2021, the Applicants filed a complaint (the Application) with the Human Rights Tribunal of Ontario (HRTO), alleging discrimination in the provision of goods, services and facilities on the grounds of race, colour, ancestry, place or origin, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the Code). The Application alleged discrimination, including systemic discrimination, with respect to discriminatory treatment in failing to receive a re-enrolment package from the School for the 2020-21 school year, and in being denied a meeting with the School concerning same.

The Parents sought monetary compensation in the amount of $100,000 from the School, and $30,000 from the Principal for injury to dignity, feelings and self-respect. The Parents also claimed $25,000 for costs of therapy and counselling for the children.

The School denied that it engaged in any differential or discriminatory treatment, maintaining the decision not to provide a re-enrolment package was based on a slow, building but eventually irreconcilable breakdown in the School-parent relationship (plus infringements of the Parent Code of Conduct) having nothing to do with race or ethnicity. A five-day merits hearing was held in September 2022.

"In many cases, discriminatory conduct is subtle, with no direct evidence that race was a factor in the differential or adverse treatment received."

Legal Issue
The legal issue was whether the School and Principal discriminated against the Applicants by failing to provide a re-enrolment package and by failing to meet with Applicants.

Decision
The Application was successful. The HRTO found that the discrimination claim regarding failure to receive a re-enrolment package was established.

Monetary Awards
The HRTO ordered the School to pay $75,000 in compensation for injury to dignity, feeling and self-respect, and the Principal to pay an additional $20,000 in compensation for the same injuries, together with pre- and post-judgment interest in accordance with the Courts of Justice Act, RSO 1990, c C.43.

Public Interest Remedies

The School was ordered to hire, at its own expense a recognized human rights expert to conduct a human rights audit and provide in-depth human rights, diversity, equity and inclusion training to the School’s Board of Governors and all administration, teachers and staff. The audit was to include a review of the School’s communication policies, procedures and contingency plans, together with an assessment of whether the School required a social worker for community support and counselling services for students and staff.

The School was further ordered to hire, at its own expense, an independent expert in leadership and communication, to provide leadership, conflict resolution and communication skills training for senior administration and the Chair of the Board. It was the School’s responsibility to provide confirmation of completion of the mandated audit and training within 60 days of completion.

Reasons
Differential Treatment
The analysis of whether discrimination has taken place is contextual, examining the impact of the circumstances on the affected individuals (Shaw v. Phipps, 2012 ONCA 155). In many cases, discriminatory conduct is subtle, with no direct evidence that race was a factor in the differential or adverse treatment received. The HRTO’s role was not to second guess disciplinary decisions made by the School, but to carefully consider the relevant circumstances to determine whether a prohibited ground under the Code was a factor in decision-making (B.C. v. Durham Catholic District School Board, 2014 HRTO 42).

While there was no absolute, free-standing right to education at the School, private schools must provide services in a non-discriminatory manner in compliance with the Code. It was clear, based on the agreement between the parties, the contract of instruction required a meeting about alleged infringements before any disciplinary action (like refusal of enrolment) could be taken by the School. Although the decision to deny re-enrolment was made in the context of various incidents of alleged misconduct, on the specific facts and circumstances of this case, involving a family who had been part of the School for five years, the HRTO was satisfied that procedural fairness (and an opportunity to be heard) should have been afforded.

"A monetary award provides compensation for the intrinsic harm – injury to feelings, dignity and self-respect – caused by discriminatory conduct, recognizing that human rights have intrinsic value independent of actual monetary or personal losses suffered by an individual."

The Applicants were never provided with an opportunity to meet with the School or respond to allegations. Failure to meet with the family before deciding that their children would not be re-enrolled (unlike other non-racialized families) together with a failure to adequately document concerns, suggested that Code-protected grounds were a factor. This varied approach was evidence of differential treatment on a Code-protected ground.
Difficult circumstances did not account for the failure to meet with the Applicants before deciding their children would not be enrolled. The School’s departure from its own contractual obligations to meet with parents, the arbitrariness of the decision not to re-enrol the children, the lack of credible explanation for continued delay, and the ultimate failure to meet with the Applicants, evidenced differential treatment on Code-protected grounds.

Public Interest Remedy
A monetary award provides compensation for the intrinsic harm – injury to feelings, dignity and self-respect – caused by discriminatory conduct (Arunachalam v. Best Buy Canada, 2010 HRTO 1880), recognizing that human rights have intrinsic value independent of actual monetary or personal losses suffered by an individual. In this case, the HRTO not only held the Principal personally responsible for his part in the discriminatory conduct but, significantly, went on to order public interest remedies – to ensure appropriate supports and contingency planning were available at the School, and to promote the purposes of the Code.

S.R. v. Matthews Hall, 2024 HRTO 680 (Human Rights Tribunal of Ontario).

Authored by Anna Zadunayski LLB, MSc.

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 With years of research experience, Pendulum Law is well-positioned to identify education law trends. We currently see an abundance of human rights complaints by families (many of which are summarily dismissed for similar reasons) and far too many disciplinary and criminal cases where educators abuse their position of trust with students.

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Editor’s Note: This case is subject to a Publication Ban. Under subsection 486.4(1) of the Criminal Code, information identifying the complainant shall not be published or transmitted in any way. This article is based on the public record and has been carefully edited to comply with the restriction on publication.

Facts

Following a trial by judge alone in the Provincial Court of Newfoundland and Labrador, Noel Strapp (the “Teacher”) was convicted of sexual exploitation and sexual assault (Criminal Code, ss. 153(1)(a), 271(a)) of a student athlete at the school where he was employed as a teacher and athletic coach. He was sentenced to a period of imprisonment totalling four years (R. v. Strapp, 2022 NLCA 48).

The complainant was a high-level athlete during high school, competing nationally and internationally. She had frequent contact with the Teacher who was also her athletic coach. She described sexual grooming by the Teacher while under his coaching direction. The grooming evolved into a sexual relationship when the complainant was a 16 year old grade 11 student, continuing until after she began university. During that period, there were several instances of sexual activity. The allegations spanned a period of approximately two years.

The Teacher maintained that there was no sexual contact, and only brief occasions when he was alone with the complainant.

Cause of Action

The Teacher appealed the criminal convictions to the Court of Appeal of Newfoundland and Labrador. He claimed that the trial judge erred in assessing credibility, providing insufficient reasons, misapprehending the evidence, and engaging in uneven scrutiny, resulting in a wrong decision.

Legal Issues

The legal issues on appeal included whether or not the trial Judge erred by:

• Failing to address material inconsistencies in the evidence;
• Failing to give adequate reasons to support factual findings and inferences; or
• Misapprehending the evidence or engaging in uneven scrutiny of the evidence.

Decision

The appeal was dismissed. The Teacher did not demonstrate that the trial Judge erred in assessing credibility, providing sufficient reasons or apprehending the evidence.

Reasons

Material Inconsistencies in the Evidence

If a trial judge fails to consider a relevant matter, such as a material inconsistency, this may indicate that they have erred by not properly weighing all the factors. Failing to address relevant matters may constitute a material error, justifying appellate intervention, if the omission indicates that the trial judge forgot, ignored or misconceived the evidence in a way that affects the result (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3).

"The only issue in dispute at trial (on both charges) was whether sexual contact had occurred."

  The Teacher argued that the trial Judge erred in law by failing to resolve material inconsistencies in the evidence on significant issues which could have raised reasonable doubt. The Court of Appeal did not accept this argument, because the collateral matters raised were not directly relevant to the issues in dispute for either charge. As was the situation here, inconsistencies on collateral matters do not necessarily call for comment by a trial judge (R. v. Hoyles, 2018 NLCA 46 at para 23).

The section 153(1)(a) charge of sexual exploitation required the Crown to prove that the Teacher touched any part of a young person’s body for a sexual purpose. The section 271 sexual assault charge required the nonconsensual application of force violating the sexual integrity of the complainant. The only issue in dispute at trial (on both charges) was whether sexual contact had occurred. The collateral matters raised on appeal had no direct relevance to that issue.

The Court of Appeal found that, despite some inconsistencies in the evidence, the trial Judge explained why she was satisfied beyond a reasonable doubt that sexual contact had occurred. There was no error on the alleged failure to address material inconsistencies in the evidence.

Adequate Reasons

Judicial reasons must be sufficient to explain why an accused was convicted, providing public accountability, and permitting effective appellate review (R. v. R.E.M., 2008 SCC 51 at para 15; R. v. Martin, 2021 NLCA 48 at paras 4, 13). Appellate courts should not unduly scrutinize, particularly where credibility findings are in question. The Supreme Court of Canada has discouraged the technical search for error, affirming the importance of viewing a trier’s reasons with sensitivity, given their role and advantage in making findings of fact and credibility (R. v. G.F., 2021 SCC 20 at para 5).

"... the trial Judge gave adequate reasons to explain why she was satisfied that sexual contact had occurred."

 The Teacher argued that the trial Judge failed to give adequate reasons to support the inference that occasions of sexual contact had occurred in  close proximity of others. The Court of Appeal found that the trial Judge gave adequate reasons to explain why she was satisfied that sexual contact had occurred. She was not required to give specific reasons explaining how sexual contact could have occurred when others were near by. To find error in the Judge’s failure to specifically address how some incidents could have occurred in the close proximity of others would be to unduly scrutinize the reasons in a search for error.

Misapprehension of Evidence

A misapprehension of evidence may include a failure by a trier of fact to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence (R. v. MacIsaac, 2013 NLCA 26 at para 16). Where there has been a misapprehension of evidence potentially affecting a legal outcome, an appellate court may intervene to avoid a miscarriage of justice (R. v. Lohrer, 2004 SCC 80).

In this case, the Teacher highlighted two examples where, in his view, the trial Judge misapprehended evidence, including mistaking the substance of evidence given by a witness, and failing to consider material evidence. The Court of Appeal found that these points of argument had no direct relevance to the criminal charges of sexual exploitation and assault. The examples proffered did not establish that the trial Judge misapprehended the evidence. As such, the Court could find no error warranting appellate interference.

Uneven Scrutiny of the Evidence

Uneven scrutiny – where the evidence pits the word of a complainant against the denial of an accused and the result turns on credibility findings – is a common argument in criminal appeals. This argument is rarely successful because it emphasizes a trial judge’s methodology rather then whether there is reversible error (R. v. G.F., 2021 SCC 20, at para 100). In this case, the passage of time and number of sexual incidents diminished the argument that the complainant was not credible. In the Court’s view, the reasons revealed that the trial Judge dealt with all material inconsistencies in an even-handed manner.

R. v. Strapp, 2024 NLCA 7 (Court of Appeal of Newfoundland and Labrador).

Authored by Anna Zadunayski LLB, MSc.

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Facts

The South East Cornerstone Public School Division No. 209 (School Division) proactively reported a privacy breach to the Office of the Saskatchewan Information and Privacy Commissioner (IPC) in August 2023. An unauthorized third party gained access to three IT systems and uploaded data, including personal information, to a cloud storage service. User credentials for an employee who was on a leave of absence were compromised. The incident appeared to be a precursor to a ransomware attack. There was no evidence that the employee’s device was lost or accessed. While no malware was detected, eight ‘archive files’ had been exfiltrated or removed from the network to a third-party cloud storage provider. The School Division estimated that 20,000 people were affected by the breach.  

Cause of Action

The School Division proactively reported the breach to the IPC, which investigated the incident under The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c L-27.1 (the Act).

Legal Issue

The legal issues included whether the IPC had jurisdiction over the matter, whether the information at issue qualified as ‘personal information’ under section 23(1) of the Act, and whether the School Division responded appropriately to the privacy breach.

Decision

The IPC found there was a privacy breach involving personal information, and that the School Division took appropriate action to contain the breach, notify affected parties and investigate the breach.

The IPC made recommendations to prevent further breaches including: dark web monitoring, credit monitoring, a zero-trust network access solution, an enhanced password policy, a policy for access by staff on leave, a record holdings review (along with retention schedule compliance), and mandatory annual privacy and security training for all staff.  

Reasons

Jurisdiction: Local Authority and Personal Information

The School Division qualified as a ‘local authority’ pursuant to section 2(1)(f) of the Act, giving the IPC jurisdiction to investigate the incident. The Act’s privacy rules apply to ‘personal information’ meaning information about an identifiable individual that is recorded in any form, including information relating to race, ancestry, religion, sex, family status, age, education or employment history, health history, blood type, address, contact information, etc.

While the School Division was unable to definitively determine what information was impacted by the incident (the information inappropriately accessed varied with each affected individual), given the nature of the information the School Division believed was involved, the IPC found that the information qualified as personal information under the Act. As the School Division was a local authority and personal information was involved in the breach, the IPC had jurisdiction to investigate, and determine whether the School Division appropriately responded to the breach.  

Did the School Division Respond Appropriately to the Privacy Breach?

The IPC’s determination of whether the School Division appropriately handled the breach examined the Division’s efforts to:

• Contain the breach;
• Notify affected individuals;
• Investigate the breach; and
• Prevent future breaches.

Upon discovering a privacy breach, an authority should immediately take steps to contain the breach, including:

• Stopping the unauthorized practice;
• Recovering the records;<
• Shutting down the breached system;
• Revoking access; and
• Correcting physical security weaknesses

In assessing efforts to contain a breach, a reasonableness standard applies – including reassurance that the institution has reduced the magnitude of the breach and the risk to affected individuals. In this case, the IPC found that the steps taken by the School Division in response to the breach were appropriate. Regarding the School Division’s plan to prevent future breaches, the IPC made specific additional recommendations.

Recommendations to Prevent Further Breaches

Once an authority contains a breach and identifies a root cause, it is imperative to implement solutions to prevent a future breach. The risk of malware remains high. Authorities must ensure that reasonable measures are in place to address an escalating risk and safeguard increasingly sensitive information that may be breached.

In this case, the School Division used an endpoint detection response tool, deployed immediately when the breach was discovered. The Division also acquired a security operations centre, managed detection and response risk services with a third-party vendor and updated its password policy to a 12-character password (instead of eight). At the time of the breach, the Division required multi-factor authentication for all staff accessing systems off premises. After the breach the Division restricted off premises access to all internal applications.

"Once an authority contains a breach and identifies a root cause, it is imperative to implement solutions to prevent a future breach."

Given the spate of data breaches involving Canadian school boards in recent years, the IPC recommended the School Division acquire a zero-trust network access solution, update its password policy, implement an access policy for staff who are on leave, ensure mandatory (annual) staff privacy and security training, and review its record holdings and applicable retention schedules to ensure full compliance with Saskatchewan School Boards Association recommendations.

South East Cornerstone Public School Division No. 209 (Re), 2024 CanLII 8316 (SK IPC) (Office of the Saskatchewan Information and Privacy Commissioner).

Authored by Anna Zadunayski LLB, MSc.

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