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Eductaion Law: Reporter Elementary & Secondary

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chris gamble

on 25 September 2013

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Transcript of Eductaion Law: Reporter Elementary & Secondary

Education Law: Reporter Elementary & Secondary
The Facts:

Parents of autistic children filed a lawsuit against the ministers of Education and Children and Youth Services, and several Ontario school boards. (The Defendants)
Five Claims:
1.The Defendants were negligent in the administration of public education to their autistic children.

2.The Defendants breached their fiduciary duties;

3.The Defendants committed misfeasance in public office in designing, implementing and operating education programs;

4.The Defendants violated section 7 of the Canadian Charter of Rights and Freedoms (the right to life, liberty and Security of the person, in the provision of public education of their autistic children); and

5.The Defendants violated section 15 of the Charter, which says every individual is equal before and under the law, and has the right to equal protection and benefit of the law without discrimination, in the provision of public education to their autistic children.
Cause of Action
Ontario Asked the Court to strike out the claims against it and dismiss the parents’ lawsuit.
School boards sought out to strike parts of the parents’ claims for failure to plead material facts ant that some of the allegations in the Statement of Claim were frivolous, vexatious or an abuse of process (AKA mean and a waste of time)

Question: Were there sufficient facts to file a lawsuit, and had the claims been properly written?
Decision:
All claims except the claim that section 15 of the charter had been breached were struck down.
The Defendants violated section 15 of the Charter, which says every individual is equal before and under the law, and has the right to equal protection and benefit of the law without discrimination, in the provision of public education to their autistic children
Analysis
Negligence
Decisions concerning funding resources and their allocation in programs are policy decisions so, as a result Ontario did not owe the parents a private law duty of care. As a result no cause of action was disclosed.

Breach of Fiduciary Duty
No specific duty was owed. The minister has discretionary power and owes a duty to the public at large and not to a specific person or group. Public officials must balance budgetary considerations with competing claims for public resources.
Manitoba Law

Misfeasance in Public Office

There was no specific evidence that the actions of this public official were deliberate and unlawful and that they were likely to cause harm to the parents. For this action to be successful the Prosecution must prove more than breach of duty or authority and also must prove that the action was malicious in nature. In this case there was no specific official who was identified and no facts to substantiate the claim, so the allegation was struck down.

Section 7 of the Charter

Section 7 of the charter did not impose an obligation on Ontario to ensure every school-age child had access to a specific educational service. Failing to provide a specific service does not violate the parents section 7 rights.

section 7 of the Canadian Charter of Rights and Freedoms the right to life, liberty and Security of the person.
Section 15 of the Charter

Cause of action under Section 15 must include facts that would establish.
1.they claimed a benefit provided by the law;
2.the benefit was denied to them but not a comparative group; and
3.the purpose or effect of that denial demeans the parents’ human dignity

The parents alleged sufficien facts that this claim could proceed to trial.
The Manitoba Public Schools Act
Certain duties of school boards

41(1) Every school board shall

(a) provide adequate school accommodation for the resident persons who have the right to attend school as provided in section 259;

(a.1) provide, as may be directed or prescribed by the minister, appropriate educational programming for every

(i) pupil enrolled as provided for in section 58.4, and

(ii) resident person who has the right to attend school as provided in section 259;

Regulations — appropriate educational programming

41(1.1) The minister may make regulations respecting appropriate educational programming to be provided by school boards under clause (1)(a.1), including, but not limited to, establishing

(a) programming standards respecting resources and other support services to be provided by school boards;

(b) a dispute resolution process to be followed if there is a disagreement about the appropriateness of the educational programming being provided to a pupil by the school board.
Bill 13 allowed the Minister of Education, Citizenship and Youth to develop regulations regarding appropriate educational programming and dispute resolution.

Appropriate Educational Programming

In November 2003, Bill 13 - The Public Schools Amendment Act (Appropriate Educational Programming) was introduced by the Provincial Government. The Bill made an amendment to the Public Schools Act.
On May 12, 2004, Bill 13 received concurrence and third reading in the Manitoba legislature.
On June 10, 2004, the Bill received Royal Assent to come into effect on a yet to be determined date fixed by Proclamation.
On October 28, 2005, the Bill and supporting regulations were proclaimed.
What is the purpose of the legislation?

The Amendment to the Public Schools Act: Appropriate Educational Programming provides the regulation to guide policy and programming for all students, particularly those with special needs, in receiving the appropriate educational programming they require.
The regulations confirm in legislation that all students in Manitoba are entitled to receive appropriate educational programming that fosters student participation in both the academic and social life of the school.
The legislation supports Manitoba’s
Student Services Appropriate Educational Programming Philosophy of Inclusion

The proposed legislation supports Manitoba 's philosophy of inclusion, which states:

Inclusion is a way of thinking and acting that allows every individual to feel accepted, valued, and safe. An inclusive community consciously evolves to meet the changing needs of its members. Through recognition and support, an inclusive community provides meaningful involvement and equal access to the benefits of citizenship.

In Manitoba , we embrace inclusion as a means of enhancing the well-being of every member of the community. By working together, we strengthen our capacity to provide the foundation for a richer future for all of us.

What is Manitoba’s philosophy of Inclusion?

Inclusion is a way of thinking and acting that allows every individual to feel accepted, valued, and safe. An inclusive community consciously evolves to meet the changing needs of its members.
Through recognition and support, an inclusive community provides meaningful involvement and equal access to the benefits of citizenship.
In Manitoba, we embrace inclusion as a means of enhancing the well-being of every member of the community. By working together, we strengthen our capacity to provide the foundation for a richer future for all of us.
The philosophy of inclusion goes beyond the idea of physical location and incorporates basic values and a belief system that promotes the participation, belonging and interaction.
What does inclusion mean to a student with special needs?

Students with special needs should experience school as much as possible like their peers without special needs.
To make inclusion applicable in Manitoba schools, educators will:
Foster school and classroom communities where all students, including those with diverse needs and abilities, have a sense of personal belonging and achievement.
Engage in practices that allow students with a wide range of learning needs to be taught together effectively.
Enhance students’ abilities to deal with diversity
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