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.

“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 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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 Facts

Canada’s three major research funding agencies include: the Canadian Institutes of Health Research (CIHR), the Natural Sciences and Engineering Research Council of Canada (NSERC), and the Social Sciences and Humanities Research Council (SSHRC), collectively referred to as the “Tri-Agency.”

McGill University (the University) is required to maintain a Responsible Conduct of Research (RCR) Policy to meet obligations set out in the Tri-Agency Framework: Responsible Research Conduct (2016). The Framework governs institutions applying for and managing Tri-Agency funds, including performing research, disseminating results, and processes institutions must follow for breaches. Institutions receiving funding must have policies to comply with Tri-Agency Framework requirements.

Dr. Philip Dickinson is a neuroscientist and Vanier Scholar. During his doctoral studies at the University, he developed a research project regarding the impact of beta-blockers on the autobiographical memory of hypertensive patients. He authored CIHR grant applications to fund the research but was not able to apply directly for CIHR funding because, at the time, he was a doctoral student. Instead, he worked with his supervisor, Dr. Pruessner, to submit CIHR grant applications, acknowledging his contributions and listing him as a co-applicant.

After unsuccessful applications, Dr. Pruessner applied to the CIHR “2016 1st Live Pilot Project Grant” competition, excluding Dr. Dickinson as a co-author and removing all acknowledgments of Dr. Dickinson in the proposal. The application was successful and received CIHR funding.

When the grant was awarded in July 2016, Dr. Pruessner no longer wished to pursue the project, instead wanting to use the funds for other research. The CIHR funds were not returned, but redirected to Dr. Nader, also a professor at the University, for another research project related to testing new treatments for smoking addictions, differing significantly from the research project for which the funds were granted.

"When a commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, courts will treat the investigation report as constituting the commission’s reasoning for the purposes of reviewing a decision."

In March 2020, Dr. Dickinson submitted a research misconduct complaint (the Complaint) against Drs. Pruessner and Nader to the University’s Research Integrity Office, alleging academic dishonesty, plagiarism, and misuse of grant funds contrary to CIHR policies. The Research Integrity Office dismissed the Complaint in October 2020, finding no research misconduct or evidence of violation of the guidelines on ethical behaviour in research. An investigation found that Dr. Pruessner’s conduct, in excluding Dr. Dickinson in the 2016 application, was an “inadvertent omission.”

In December 2020, Dr. Dickinson escalated his concerns to the Secretariat on Responsible Conduct of Research (SRCR), complaining of institutional non-compliance (INC Complaint) by the University (the SRCR provides substantive and administrative support to the Panel on Research Ethics (PRE) and the Tri-Agency). The INC Complaint alleged plagiarism and  a breach of Section 3 of the Tri-Agency Guide on Financial Administration (failure to administer funds in a manner consistent with the funding opportunity description).

In April 2021, Dr. Dickinson wrote to the SRCR and to the CIHR President, expressing concern with the lack of progress regarding his complaint. In May 2021, the SRCR responded with details about the procedure, noting that an independent external reviewer would be appointed. In July 2021 an external reviewer was selected. In August 2021, Dr. Dickinson objected to the external reviewer, noting that a reviewer with no previous relationship with either the Tri-Agency or the institutions would be more suitable. The SRCR agreed and undertook to select another external reviewer.

In September 2022, the SRCR received the external reviewer’s final report. In February 2023, the Panel recommended that the Tri-Agency Presidents accept the external reviewer’s report, reprimand Dr. Pruessner, and declare the INC Complaint file closed. 

In April 2023 – 28 months after the INC Complaint was made – the Tri-Agency Presidents issued their decision by way of a brief letter to the University (the Decision), with a copy to Dr. Dickinson, dismissing the complaint. The letter accepted the external reviewer’s conclusion that the University did not breach the Tri-Agency Framework, apologized for the delay in communicating the final decision, and acknowledged the University’s efforts to facilitate the process.

Cause of Action

Dr. Dickinson sought judicial review, submitting that the Decision was not reasonable, the process for determining his complaint was procedurally unfair, and the investigation and decision-makers were biased.

Legal Issues

The two key issues in the application included whether the Decision was reasonable, and whether Dr. Dickinson was afforded the level of procedural fairness owed to him in the circumstances.

Decision

The application for judicial review was granted, with costs. The Tri-Agency Decision was unreasonable. 

The Tri-Agency Presidents were ordered to redetermine Dr. Dickinson’s complaint of institutional non-compliance by the University. The Attorney General of Canada was ordered to pay costs to Dr. Dickinson in the amount of $1000.00.

Reasons

Tri-Agency Reasons

When a commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, courts will treat the investigation report as constituting the commission’s reasoning for the purposes of reviewing a decision (Sketchley v. Canada (Attorney General), 2005 FCA 404 at para 37). In the Court’s view, the same principle applied in Dr. Dickinson’s case: the reasons of the Tri-Agency Presidents were brief, adopting the reasons of the external reviewer. The Court was therefore compelled to regard the external reviewer’s reasons as the reasons of the Tri-Agency Presidents.

 Assessing Reasonableness: Information Considered by the Court

The information considered by the Tri-Agency Presidents in making the Decision was set out in the Certified Tribunal Record (CTR), comprised of:

• Two briefing notes;
• Dr. Dickinson’s INC Complaint;
• The final report of the University’s Research Integrity Office investigation;
• Responses from Dr. Pruessner and Dr. Nader;
• Comments from Dr. Dickinson and the University regarding the SRCR external reviewer’s draft report; and
• The SRCR external reviewer’s final report.

As a general rule, new evidence (not part of the record before the decision-maker) is only permitted on judicial review on an exceptional basis (Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20). Recognized exceptions include evidence that: 1) provides general background information that may assist in understanding the relevant issues but does not add new evidence on the merits; 2) draws the attention of the reviewing court to procedural defects that cannot be found in the decision-maker’s record; and 3) highlights the absence of evidence before the decision-maker on a particular finding (Access Copyright at para 20). 

In this case, the Court found that many additional documents provided essential background information and/or highlighted the absence of evidence before the Tri-Agency Presidents (falling within the Access Copyright exceptions). Additionally, while only the CTR documents were provided to the Tri-Agency Presidents to make their decision, they adopted the SRCR external reviewer’s final report. The documents considered by the external reviewer could therefore be considered by the Court in assessing the reasonableness of the Decision.

"... the Decision of the Tri-Agency Presidents dismissing the Complaint against the University was not reasonable with respect to the finding that the redirection of grant funds to a different project complied with the Tri-Agency Framework."

Redirection of Funds: Was the Tri-Agency Decision Reasonable?

The presumptive standard of review for administrative decisions is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 25). A reasonable decision is one that is based on an internally coherent and rational chain of analysis, justified in relation to the facts and the law (Vavilov, para 85) and where the reasons for the decision are justified, intelligible, and transparent (Vavilov, para 95).

On judicial review, courts do not reweigh and assess the evidence that was before the decision-maker, however, decisions must be justified in light of the facts (Vavilov, paras 125-126). For a decision to be set aside as unreasonable, the reviewing court must find serious shortcomings or flaws that are central to the decision. This may include irrational reasoning or an indefensible outcome in light of the relevant factual and legal constraints (Vavilov, paras 100-101).

Here, the Court found that the Decision of the Tri-Agency Presidents dismissing the INC Complaint against the University was not reasonable with respect to their finding that the redirection of the grant to a different project complied with the Tri-Agency Framework. Specifically, the Court held that the conclusion that the redirection of funds granted to a different project and a different researcher did not breach the Tri-Agency Framework was unreasonable, lacked analysis and ignored the evidence. The Court noted that the external reviewer failed to consider relevant agreements in determining whether deviation from the proposed research was permitted, relying exclusively upon his own subjective knowledge of Tri-Agency research funding in concluding that there was no breach of the Framework, despite being appointed to provide an objective assessment of the allegations based on the facts.

The Court held that the Decision dismissing Dr. Dickinson’s allegation of institutional non-compliance with the Tri-Agency Guide on Financial Administration (redirection of funds in breach of the Tri-Agency Framework) was not reasonable, directing the Tri-Agency Presidents to redetermine the complaint.

Costs

Per Rule 400 of the Federal Court Rules, the Court has discretion to determine whether costs should be awarded and in what amount. Factors include: result of the proceeding; importance and complexity of the issues; the amount of work; conduct of the parties, whether any steps in the proceeding were improper, vexatious or unnecessary, or any other matter that the Court considers relevant (Francosteel Canada Inc. v. African Cape (The), 2003 FCA119).

In this case, the result of the proceeding was the most relevant factor, carrying significant weight. As a general rule, costs follow the event (Merck & Co. Inc. v. Novopharm Ltd., 1998 CanLII 8260 (FC), para 24). In the Court’s view, the outcome of Dr. Dickinson’s application supported a costs award. 

Dickinson v. Canada (Attorney General), 2024 FC 1480 (Federal Court of Canada).

Authored by Anna Zadunayski LLB, MSc. 

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Facts

In 2021, the Office of the Information and Privacy Commissioner of Ontario (IPC) received a complaint from a student (the Student) at McMaster University (the University) regarding use of proctoring software for exams conducted remotely and online. The software used was Respondus LockDown Browser and Respondus Monitor. The Student raised concerns that the University was inappropriately collecting student data via the software and was unsure how the University was using, disclosing and disposing of personal information gathered by the software.

The complaint was brought during the height of COVID-19 restrictions. The University began using Respondus LockDown Browser and Respondus Monitor to administer remote assessments in 2020, the first year of the pandemic. LockDown Browser is custom software that locks down a testing environment within a learning management system by making temporary changes to student computer settings to control or restrict access to computing resources. During assessments, students are unable to navigate away from the assessment screen, conduct an internet search or access computer files.

Respondus Monitor analyzes video and audio of students during exams with the aim of ensuring academic integrity (scanning for possible cheating). It accesses a student’s webcam and records them during an exam, acting as a form of virtual invigilation. Recordings include real time biometric information (facial expressions, body posture and positioning, direction of gaze and verbal elements), analysed using artificial intelligence (AI) to flag suspicious activities consistent with cheating.

In this case, where an assessment was flagged, instructors were informed and could review the exam recording via the University’s Academic Integrity Office. Instructors could not access recordings without authorization from the Academic Integrity Office pursuant to an academic integrity investigation. After implementing Respondus software in 2020, there were two cases where recordings were reviewed as part of an investigation. In both cases, students were charged with academic misconduct. Recordings provided integral evidence documenting the misconduct. 

Cause of Action

The Student did not consent to the IPC sharing their name or a copy of their complaint with the University. Instead, the IPC opened a Commissioner-initiated complaint to address the University’s use of the Respondus exam proctoring software. 

Legal Issues

The legal issues included whether student information was being collected, used and protected by the University in accordance with the Freedom of Information and Protection of Privacy Act, R.S.O. 1990 (the Act). Did the University have reasonable contractual and oversight measures in place to ensure student privacy in accordance with Regulations made under the Act?

Decision

While the IPC acknowledged that conducting exams and appointing examiners was a lawfully authorized University activity, it concluded that Respondus Monitor collected sensitive personal information (including biometric information) and used AI, carrying heightened privacy concerns.

The University had not provided adequate notice for its collection of the information as required by section 39(2) of the Act. Use of students’ personal information through Respondus Monitor did not comply with section 41(1) of the Act.

"Student names, course information, photo identification, biometric data, and audio and video recordings are “personal information” as defined  in section 2(1) of the Act."

The contractual arrangement between the University and Respondus did not adequately protect the personal information collected, permitting Respondus to use that information for system improvement purposes without student consent.

The IPC made recommendations for the University to bring itself into compliance with the Act. Given the heightened risks associated with AI technologies, the IPC recommended additional guardrails to incorporate stronger protections in ongoing use (and future agreements) of exam proctoring software. The University was required to report back to the IPC about implementation of the recommendations within six moths of receiving the investigation report. 

Reasons

Was Student Information Collected, Used and Protected in Accordance with the Act?

Student names, course information, photo identification, biometric data, and audio and video recordings are “personal information” as defined in section 2(1) of the Act. The IPC found that although collection of personal information via Respondus software complied with section 38 of the Act (necessary collection of personal information), the University’s notice of collection to students did not comply with section 39(2) of the Act.  

Use of personal information via Respondus LockDown Bowser on behalf of the University was authorized under section 41(1) of the Act, however use of personal information via Respondus Monitor for product improvement purposes was not.

Were Contractual and Oversight Measures Sufficient to Ensure Student Privacy?

In the IPC’s view, contractual and oversight measures in place were not sufficient to ensure privacy and security of student information (mandated by the requirements of section 4(1) of Ontario Regulation 460 and section 4(1) and 5 of Ontario Regulation 459, made pursuant to the Act). To enhance student privacy, the IPC recommended that the University consolidate its notice of collection of personal information in a clear, comprehensive statement so that students could access the information without having to navigate numerous sources.

The IPC directed the University to secure a written undertaking from Respondus to stop using personal information for service improvement or training and stop disclosing personal information to subcontractors for research purposes, absent student consent. The IPC recommended that the University enter into a more restrictive, particularized agreement, including: 

1) Confirmation that Respondus would treat all recordings as personal data;

2) In cases of compelled disclosure by government or law enforcement, Respondus would provide the University with prompt notice, seeking an appropriate remedy to prevent or limit such disclosure; and

3) A contractual requirement that Respondus confirm the deletion personal data from its servers on an annual basis.

The University was also advised to conduct tests confirming that uninstalling Respondus software actually resulted in removing the totality of the software, with no remnants remaining.

Mitigating Heightened Privacy Risks of Online Exam Proctoring

The IPC noted the heightened privacy risks associated with automated online exam proctoring, compared to in-person tests. Recordings focus upon individual students, often in their home setting, potentially capturing extraneous background information about living environment and conditions, providing information that a student may not wish to share and raising the risk of unfair allegations based on inaccurate information.

Given the heightened privacy risks associated with use of AI-enabled exam proctoring software, the IPC recommended several additional guardrails for the University to: conduct an algorithmic impact assessment; consult with student representatives (particularly from vulnerable or historically marginalized groups); provide students with an opportunity to opt out of online exam proctoring and choose in-person invigilation instead; and provide a less formal process for challenging identified academic integrity flags. 

McMaster University (Re), 2024 CanLII 17583 (ON IPC) (Ontario Information and Privacy Commissioner).

Authored by Anna Zadunayski LLB, MSc.

Implications and Applications

The integration of AI into the educational setting raises important questions, from the ethics of generative AI in student learning to protection of student privacy. Based on the recent McMaster University privacy review, educational institutions should:

• Understand the heightened privacy risks associated with AI technologies.
• Provide clear and adequate notice to students regarding collection of personal information (notice of collection and use of personal information must comply with applicable privacy legislation).
• Consolidate notice of collection of personal information in a clear, comprehensive statement (enable students to access this information without having to navigate multiple sources).
• Review and monitor contractual agreements with service providers (contractual oversight measures must ensure the privacy and security of student information).
• Ensure that service providers are not using personal information for research or development purposes, absent student consent.
• Test the software to ensure that uninstalling the software will remove the totality of the software with no remnant remaining.
• Provide students with the opportunity to opt out of online exam proctoring (and choose in-person invigilation instead).
• Implement safeguards and protections for ongoing use of exam proctoring software.

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Facts

The student residences at the University of Lethbridge (University) include townhouse, dormitory and multi-resident units of varying age, construction class and economic life. As improvements on University-owned lands within the City of Lethbridge (City), they are subject to municipal property tax assessments. A July 2021 City Property Tax Assessment valued the University lands and improvements at $478,931,000.00. The student residence improvements accounted for $28,113,350.00 of that amount.

The University appealed the assessment to the City of Lethbridge Composite Assessment Review Board (CARB), taking issue with the taxable value of the student residence improvements. Specifically, the University disputed the fairness of the City’s valuation methodology and its calculation of external depreciation or obsolescence.

The University’s appeal was successful. The CARB reduced the assessed value of the student residences to $23,919,857.00, resulting in a final tax assessment of $473,467,500.00.

Cause of Action

The City sought judicial review of the decision, arguing that the CARB reasons were conclusory in nature and failed to explain how the evidence was weighed or issues were analyzed. The City claimed that the CARB failed to provide transparent, justified and intelligible reasons.

In response, the University argued that the CARB decision, when considered as a whole, and in the context of the evidentiary record and submissions, was intelligible, transparent and justified.

Legal Issue

The legal issues on judicial review included the reasonableness of the CARB decision, together with the calculation of the age of the student residence improvements.

Decision

The Court upheld the CARB decision as being intelligible, transparent and justified. The CARB considered the unique nature of the student residence improvements and applied the considerations set out in the Municipal Government Act, RSA 2000 (the “Act”), to ensure a fair and equitable tax assessment.

The City and University age life expectations deviated by one year on each of the student residence improvements. The University calculation of age life expectancy was incorrect, rendering each residence one year older than it would have been based upon physical condition and characteristics. The CARB, relying upon the University’s calculation, imported the error into the final quantified figure, requiring correction so that the final calculation was based upon an accepted methodology. The matter was remitted back to the CARB only to recalculate the tax assessment using the proper age life expectancy for each residence.

"A reasonableness review examines the reasons of the administrative decision maker, which must demonstrate an internally coherent, rational chain of analysis, justified on the facts of the case and the applicable law."

Reasons

Standard of Review

Reasonableness is the presumptive standard of review for administrative decisions (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). Reasonableness engenders respect for the expertise of administrative decision makers, requiring courts to exercise restraint and intervene only to safeguard the legality, rationality and fairness of the administrative process. Deference is required. Courts are not on a treasure hunt for error.

A reasonableness review examines the reasons of the administrative decision maker, which must demonstrate an internally coherent, rational chain of analysis, justified on the facts of the case and the applicable law. A decision is reasonable if there are no fatal flaws in logic and the analysis flows logically from the evidence to the result. It falls to the party seeking review to demonstrate that the decision is unreasonable.

Sufficiency of Reasons

In this case, the City argued that the CARB failed to demonstrate how it arrived at its reasons. In the Court’s view, the CARB reasons provided a comprehensive overview of the arguments, explaining why the University’s consistent approach to valuation was preferred. The CARB decision noted that cases relied upon by the City were distinguishable as they did not relate to student residences. By contrast, the cases relied upon by the University included decisions relating specifically to University student residences, demonstrating how matters of cost and obsolescence had previously been dealt with.

"In assessing external depreciation and quantifying obsolescence, it is necessary to reconcile the difference between the market value of a typical multi-family property and the market value of similar-in-form but atypical-in-function student housing."

In assessing external depreciation and quantifying obsolescence, it is necessary to reconcile the difference between the market value of a typical multi-family property and the market value of similar-in-form but atypical-in-function student housing. The Court found that the CARB assessed the fair and equitable value of a unique form of improvement with no other market comparable. 

Assessment Review Board

An assessment review board is empowered under section 467 of the Act, to change an assessment roll or decide that no change is required. It must not alter an assessment that is fair and equitable. In conducting a review, a board must regard valuation standards and procedures set out in the regulations, along with the assessment of similar property in the same municipality. As student residences do not generate a consistent income stream or attract comparative market data, they are typically valued using a cost approach requiring an estimate of the cost to construct the facility new, age life expectation, and depreciation specific to student residences.

Student Residences Valuation

The City applied a hybrid approach to establish cost (determining the cost of new construction, then calculating depreciation) – the same approach used to value all properties in the municipality. The University, on the other hand, relied upon a cost quantification specific to student residences. The CARB was satisfied that the University approach provided a consistent cost calculation for all aspects of the valuation including the cost of new construction, age life expectation and depreciation, and depreciation schedules specific to student residences.

The Court held that it was reasonable for the CARB to accept the University approach given the unique nature of student residence improvements and the lack of available market data comparable to such improvements. Given the unique nature of the student residence improvements, it was reasonable for the CARB to reject the City’s method used to value all property types in the municipality.

City of Lethbridge v. University of Lethbridge, 2024 ABKB 23 (Alberta Court of King’s Bench).

Authored by Anna Zadunayski LLB, MSc.

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Facts

The Applicant was a student at Aurora College (College) in Yellowknife and living in student housing in the 2020-21 school year. Public health officials made orders under the Public Health Act to slow the spread of COVID-19, including requirements for certain travelers to complete and submit self-isolation plans (SIPs). Travelling in and out of the Northwest Territories involved more planning than usual during the pandemic. Travelers required an approved SIP even if they were residents returning home. Any person exposed to the virus was expected to self-isolate for 14 days and monitor for symptoms.

In March 2020, the Minister of Health and Social Services declared a public health emergency in the Northwest Territories. The Chief Public Health Officer directed people to self-isolate if they met certain criteria. To support the public health orders, the government provided information and resources including a toll-free ‘811’ telephone number that people could call with questions (and to report suspected breaches of public health orders).

The College required student housing tenants to provide information about their SIPs and related details as part of an effort to promote the health and safety of its students. The Applicant lived in student housing in a building that was not owned by the College – an apartment complex where the College leased apartment units used to provide student housing. The building was owned by a corporation that was not a public body subject to the Access to Information and Protection of Privacy Act, SNWT 1994, c 20 (ATIPPA). Student parking was not provided by the College but arranged separately with the building owner.

The College requested those in student housing to provide details of their personal travel and SIPs. The Applicant complied with this request in December 2020 and again in January 2021, providing travel dates and SIP numbers. Separately, in May 2021, the Applicant’s parking privileges were interrupted without notice. The Applicant left student housing to attend an appointment and upon return was unable to re-enter the parkade. The code had been changed by a security guard, who may have thought the Applicant was breaching a public health order by leaving the building. Why the security guard felt empowered to take such action was unclear, as building security had no legal authority to investigate or enforce public health orders.

Three days prior to the ‘parking lot incident’ a security guard emailed the Campus Director of the College advising that the Applicant had been leaving the residential unit even though the Applicant was ‘in isolation.’ The guard advised that 811 would be called if the Applicant was seen outside the residential unit again.

The security guard was not employed by the College. The College stated that it did not communicate the Applicant’s self-isolation status and did not know how the security guard learned the information. A student resident’s personal information would be kept in the student residence file, accessible by the Residence Officer. Information about a student in isolation would be released to the building security only if it were necessary to enter a unit in an emergency.

"The legal issue was not whether the collection of information was a good policy approach given the public health crisis, but whether the collection was legal."

Cause of Action

The Applicant asked the Information and Privacy Commissioner (IPC) to review the legal authority for the College to collect, use or disclose students’ personal information regarding COVID-19 isolation status, self-isolation plans, and other related information.

Legal Issue

Some personal information was collected by the College as information obtained as part of the student housing records. The information of concern in this case was the additional information related to the Applicant’s COVID-19 health status. The legal issue was not whether the collection of information was a good policy approach given the public health crisis, but whether the collection was legal.

Decision

The IPC found that the collection of student information about SIPs from student housing residents was not authorized under ATIPPA. Because the Applicant’s personal information was disposed of by the College (according to its procedure of disposing of such records upon a resident leaving student housing) there was no need for a section 49.5(b) order compelling destruction of the information.

To prevent a future privacy breach, the IPC recommended that the College review its bylaws, policies and procedures to ensure compliance with the legal requirements of ATIPPA, particularly sections 40, 43 and 47. The IPC asked the College to stop collecting personal health information of students living in student housing unless the information directly related to (or was necessary for) management of the residence.

Reasons

Jurisdiction

Aurora College is a designated public body under section 1 of the Access to Information and Protection of Privacy Regulations, and as defined in ATIPPA section 2. Part 2 of ATIPPA addresses protection of privacy and imposes limits on the collection, use and disclosure of personal information by a public body. Section 49 provides that a person may request the IPC to review whether a public body has collected, used or disclosed an individual’s personal information in contravention of the Act. As such, the subject matter of the review was within the IPC’s jurisdiction.

"The IPC asked the College to stop collecting personal health information of students living in student housing unless the information directly related to (or was necessary for) management of the residence."

How the security guard learned of the Applicant’s isolation status was unknown. There was no evidence that the College provided the information. The building owner was a private corporation not subject to ATIPPA. The IPC did not have jurisdiction to investigate the security guard’s actions.

Collection Legally Authorized?

Early in the pandemic, the College asked students to identify themselves to the Residence Officer or Campus Director if they were required to self-isolate due to COVID. College staff were instructed to record information regarding number of occupants in a unit, contact information, whether the person had contacted Public Health, what advice was given, and whether the person had a support plan for isolation. By August 2020, the College had a protocol for students who were required to isolate, requiring submission of an approved SIP from ProtectNWT to the Residence Officer, with a copy to the Campus Director. Residence staff would contact students by email regarding isolation plans, along with resources and supports for impacted individuals.

A public body is not allowed to collect personal information unless it is for one of the reasons set out in ATIPPA section 40. This restriction functions as a fundamental protection of individual privacy: a public body cannot collect individuals’ personal information except as allowed under section 40. A public body cannot lawfully collect personal health information simply because an individual consents to provide it. Authorization must be found in ATIPPA section 40. While College bylaws and policies may have directed collection and management of information during the COVID-19 pandemic, bylaws and policies are not ‘legal enactments’ and could not supersede ATIPPA section 40(a) to justify collection.

The Aurora College Act, RSNWT 1988, c A-7, authorized the President to manage student residences. It did not empower the College to provide health services or conduct Public Health Act investigations. The pandemic posed serious operational challenges for many institutions. In the IPC’s view however, collecting students’ personal health information regarding COVID status and related details was not legally authorized and went beyond what was directly related to and necessary for management of the student residences.

Re Aurora College, 2024 NTIPC (Northwest Territories Information and Privacy Commissioner).

Authored by Anna Zadunayski LLB, MSc.

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