September, absent lockdown, has seen excited children and parents arrive at the entrance doors of the private school to which they have worked so hard to gain admission. Many pupils will graduate with wonderful memories in line with the glossy brochures. The tens of thousands of dollars per annum the parents have invested will all have been worth it.
But there are also cases where students experience hazing, bullying and other trauma. In his excellent article, “Vulnerability and daring: Hazing and St. Michael’s College School” (The Lawyer’s Daily, March 4, 2021), retired judge and distinguished academic, professor Marvin Zuker, highlights the lessons that should be learned from the bullying at St. Michael’s College School, a private Catholic school in Toronto.
I hope, in some modest degree, to add to his observations by outlining some of the most pervasive issues in cases related to bullying in private schools and some recommendations for how to address these issues. Wherever students are educated, they must be safe from bullying by other students and must be protected from retaliation when they report instances of bullying.
Independent investigations such as Sandler Report deserve careful attention
The masterful, and what should be seminal, Sandler Report, which contains the findings and recommendations from an independent investigation of bullying at St. Michael’s, can only act as a blueprint for change if private schools wish to change. This document includes detailed and thoughtful analysis of the systemic causes of bullying in private schools, and, as such, it is disappointing that the report is buried on the school’s website.
The last few decades in Ontario show not only a lack of desire to change on the part of some private schools, but really, in many cases, forceful, co-ordinated and well-funded active resistance against change. Until our educational institutions examine and publicly showcase critical reports such as the Sandler Report that shine a light on pervasive failings, we will not be able to remedy the deeply rooted issue of bullying in private schools.
Media must be allowed to report bullying in schools
In considering the pervading culture of sexual assaults at St. Michael’s, the media played a key role in bringing issues to light, raising the question of whether or not this would have been addressed at the school were it not for the media’s reporting. The delay of several days in the former headmaster’s notifying police perhaps illustrates the attitudes that have held sway for generations at that school.
It is a matter of record that (some) private schools routinely defend as a matter of course and seek the widest ranging publication bans possible. A Toronto Star article dated June 15, 2021, sadly proclaims in its headline “Private school, private justice. A teen’s lawsuit alleges he was sexually assaulted by classmates. An Ontario judge says we can’t tell you the school’s name.”
There is a long line of cases against private schools in which the courts have permitted the public to know the name of the private school and have either permitted the minor plaintiff to retain public identity or proceed by anonymization, pseudonymization or partial publications ban. This is essential to enable parents to make an informed choice about the schools they are evaluating.
Addressing imbalances of power
In the case of expensive and prestigious private schools, there is a particular imbalance of power as prominent and wealthy families are particularly protected. In the Alberta case of J.O. v. Strathcona-Tweedsmuir School  A.J. 994, the pupil was publicly vindicated.
A teenage pupil, like many before and likely many after, had too much to drink at a school dance. It was unfortunate for her that the event was held at the Calgary Golf and Country Club on a night when an extremely affluent and influential member was present. This prominent member complained and, before any form of hearing was held, a decision was made by the board and principals to expel the girl, essentially because of the prominence of the complainant. Ultimately, the court sided with pupil and found that the school failed to satisfy its duty of fairness.
Government oversight of private schools needed
The fact that a private school purports to have a written discipline and appeal procedure provides little comfort. Principals can simply ignore these procedures, knowing that imbalances of power, inefficiencies in the court system and the likely reaction from judges that teacher knows best will often discourage families from continuing to press their cases.
With respect, one could not improve on the exposition of Justice Alan D. Macleod as to the consequences when a private school, assured of its own ability to act without restraint, inflicts harm on a student they were paid (handsomely) to protect and educate:
I find the conduct of the Defendants “extremely troubling”, to borrow a phrase from Fidler. While I am mindful of the need for an award of damages for mental distress to be “sensible” and “realistic”, I am also mindful of the traumatic effect the Defendants’ high-handed and overly reactive conduct had on J. in this case. Above anyone else, [the school] had to have known the devastating effect this would have on J. It could easily have been avoided by complying with the express directions of the regulations in force at the time. That [the school] chose not to put in place a protocol to protect fair process was inexcusable. … Her expulsion was a miscarriage of justice.
The fact that this behaviour continues, and that schools continue to focus on protecting their institution at the expense of students, proves that (some) private schools simply ignore rules of fairness (see W.W. et al. v. Lakefield College School et al. 2012 ONSC 577), confident they can get away with it, highlighting the need for effective government oversight of private schools.
The protections for students enshrined in the Ontario Education Act are not available to those attending private schools. Under the minimally intrusive Alberta legislation, private schools must employ proper certificated teachers, and submit to regularly formal on-site monitoring evaluations by Ministry of Education officials, for public assurance and accountability.
Suspension and expulsion of students can only be done in accordance with the principles of fundamental justice which surely requires an appeal procedure (Manitoba expressly stipulates this). In rare cases where the student is expelled, the private school remains responsible for a student’s education program for the remainder of the school year.
This could be built upon, with a statutory private school ombudsman, with real power to stay expulsions, pending speedy independent review. Further it could be used as a force to eradicate improper conduct, involving cover-ups by teachers or improper interference by prominent families.
One thing is for sure: if we are truly invested in protecting our children and in developing educational institutions that create safe spaces for them to thrive, the present unsatisfactory state of affairs cannot continue.
Andrew Rogerson is the founder of Rogerson Law Group. In addition to his core practice, Andrew and the firm are also engaged in a number of pro bono activities, including a victims of private school bullying practice.
This article was originally published on The Lawyer’s Daily – https://www.thelawyersdaily.ca/articles/29732/addressing-often-ignored-issue-of-private-school-bullying-andrew-rogerson-?category=opinion