By-law No. 2 (i) - Section 11 Appeal Procedure

Preamble:

Section 11 of the School Act reads in part as:

Appeals

(1) In subsections (2) and (4), “decision” includes the failure of an employee to make a decision. 

(2) If a decision of an employee of a board significantly affects the education, health or safety of a student, the parent of the student or the student may, within a reasonable time from the date that the parent or student was informed of the decision, appeal that decision to the board.

(3) For the purposes of hearing appeals under this section, a board must, by bylaw, establish an appeal procedure.

This policy sets out the procedure to be followed by parents/guardians and students who wish to commence an appeal under section 11 of the School Act.

The Board strongly encourages parents, guardians, and students to work together with their teachers and Board administration to resolve disputes in an open and constructive manner both prior to and during the appeal process.

The Board’s expectation is that prior to utilizing this policy, students and their parents/guardians will have tried to resolve the issues in dispute in a constructive manner with those responsible at the school or program level.

Policy:

Confidentiality

1. Records and information relating to specific section 11 appeals are confidential and must not be disclosed except in accordance with the School Act, Freedom of Information and Protection of Privacy Act, applicable Board policy (Policy JO-R - Student Records).

Decisions which can be Appealed under Section 11

2. The right of appeal under section 11 of the School Act extends to decisions which “significantly” affect, or have special import or meaning in relation to the education, health or safety of a student.

3. The determination of whether a decision or a failure to make a decision “significantly” affects a student’s education, health or safety must be made on a case-by-case basis.  However, without limiting a student, parent, or guardian’s right to appeal, the following decisions will always be appealable under this Policy:

(a) disciplinary suspension from school for a period in excess of five (5) consecutive instructional days;

(b) the transfer of a student from one school to another for disciplinary reasons;

(c) the exclusion of a student from school for a health condition;

(d) significant decisions regarding placement in an educational program (classroom or teacher preference issues would be included in this category only in exceptional circumstances);

(e) grade promotion or graduation;

(f) refusal to offer an educational program to a non-graduated student sixteen (16) years of age or older;

4. Board and district policies are not appealable under section 11.  Appeals of Board policies or procedures shall be made to the Board through one of the Board’s Standing Committees.

5. Where a decision is made by a Board employee which would be appealable under this policy, the affected student and their parent/guardian(s) shall be notified of their right of appeal, and the time limits governing the initiation of an appeal.

Procedures for Appealing a Decision (or Failure to Make a Decision) of a Board Employee

6. The purpose of this process is to provide a fair and expeditious means by which parents/guardians and students can exercise their right of appeal under section 11.  The Board’s expectation is that participants in meetings held will act as role models for students, and will at all times maintain an atmosphere of mutual respect, co-operation, and respect for the dignity of individual participants.

7. Appellants under this policy have the right to be accompanied by a person or persons of their choosing at any of the meetings provided for below.  Where an appeal is launched by the parent/guardian of a student who is the subject of the appeal, that student also has the right, with the consent of their parent/guardian, to attend meetings held pursuant to this policy.

8. Where the decision-maker whose decision is appealed is a teacher, meetings in connection with a section 11 appeal may be attended by the employee in question and his/her union representative pursuant to Article 7.M.1 of the Board’s collective agreement with the British Columbia Teachers Federation  (Vancouver Teachers Federation).  Teachers are also entitled to receive information regarding appeals of their decisions, and to receive advance notice of any meetings held in regard to the appeal.

9. The Board is committed to providing open and equal access to the appeal process.  The Board will make interpreters available to parents who have difficulty communicating in English in order to assist communication at meetings held pursuant to this policy.

Notice of Appeal and Time Limits for Appeal

10. Appeals must be initiated within a reasonable time from the time the decision was communicated to the parent/guardian or student.  The Board’s expectation is that appeals will be initiated within thirty (30) days of the date that the parent or student was informed of the decision, unless the parent/student can demonstrate that there are reasonable grounds to extend this deadline (e.g. the parent/student have been involved in discussions to resolve the issue which is the subject of the appeal).

11. In order to commence an appeal, a student and/or his/her parent/guardian must complete a Notice of Appeal form.  The purpose of the Notice of Appeal is to expedite and clarify the nature of the appeal by ensuring that all relevant information is presented at the earliest possible stage of the appeal.

12.When the Notice of Appeal Form is completed, the appellant commences the appeal by delivering (by mail, fax or by personal delivery to the school office) the Notice to the attention of the Principal of the School where the student is enrolled.

Step 1 - Dispute Resolution

13.Upon receipt of a completed Notice of Appeal, the Principal will, as soon as practicable, arrange a meeting which will be attended by:

(a)   the parent/student;

(b)  the employee whose decision is being appealed; and

(c)  the employee’s supervisor.

14. Where the decision being appealed has been made by a teacher, the meeting will be also attended by the Associate Superintendent - Area responsible for the school in question.

15. The meeting may, at the discretion of the employee’s supervisor, also be attended by other District employees who have had prior involvement in making the decision (e.g. District Learning Services staff in cases involving the placement of special needs students) being appealed, or who have special expertise in the area being discussed.  Appellants will be provided with a list of VSB attendees prior to any meeting in connection with this appeal process.  Appellants will similarly advise VSB staff regarding any persons they intend to bring to the meeting.

16. Prior to the commencement of the meeting, the parties must discuss and agree upon a means of ensuring that a fair and accurate record of the meeting is created and retained.

17. The purpose of the meeting is to review the facts and circumstances relevant to the appeal and to attempt to reach a mutually acceptable resolution of the appeal.

18. Subsequent to the meeting, the Principal or Associate Superintendent will provide all of the meeting attendees with a written summary of the meeting, and agreements reached, if any.

19. In the event that no agreement is reached, the written summary should also include a statement regarding the nature of the issues in dispute, the position taken by the appellant and VSB staff, and the rationale for the position taken by the District.  After reviewing the summary, the appellant may request that the Principal or Associate Superintendent make changes to the summary in the event the appellant feels the summary does not accurately reflect the proceedings.  If the parties are unable to agree on the wording of the summary, the appellant will have the right to prepare and append to the summary a written statement of the reasons why they feel the summary is not accurate.  In this case, the official record of the meeting will consist of the Principal/Associate Superintendent’s summary, together with any rebuttal document prepared by the appellant.

20. In the event no agreement is reached at Step 1, further attempts at resolution may be made with the agreement of the appellant and VSB staff.  This may include the assistance of mutually agreeable third parties such as mediators, facilitators or other appropriate individuals.

21. If at the end of Step 1 the appellant has not met with the Superintendent, at the Superintendent’s discretion the Superintendent may request a meeting with the appellant, and the appellant is required to meet with the Superintendent.  A report of this meeting shall be included in the materials provided to the Board under paragraph 23.

Step 2 - Appeal to the Board

22. In the event that an appeal is not resolved at Step 1, the appellant may, as soon as reasonably possible after being informed of the decision at Step 1, notify in writing (by letter, fax or email) the Office of the Secretary-Treasurer that they wish to pursue the appeal to Step 2.

23. The Secretary-Treasurer shall forward the following materials to the Board for consideration: 

(a) the Notice of Appeal;
 
(b) copies of all previous correspondence between the parties to the appeal, including the summary of the Step 1 meeting(s), issues and positions, etc. referenced in paragraph 19 and report of the Superintendent referenced in paragraph 21, if any; and

(c) copies of any relevant VSB, Ministry or other policies or statutory requirements which bear on the issue raised in the appeal.

Preliminary Hearing

24. If the Secretary-Treasurer is of the opinion that:

(a)  an appeal is not timely;

(b) an appellant has refused to participate in the dispute resolution steps of Step 1;

(c) an appeal is not an appeal of a decision of a board employee or the decision does not significantly affect the student’s education, health or safety; or

(d) there is any other preliminary matter that should be settled before a hearing of an appeal on its merits;

the Secretary-Treasurer may schedule a preliminary hearing before the Board for purposes of a decision on that matter.

25.Appellants will be notified by the Secretary-Treasurer of any preliminary hearing and will be provided with the opportunity to make both oral and written submissions to the Board on the preliminary issue to be determined. 

26.At any time prior to making a decision on a preliminary issue, the Board may request that the appellant and/or VSB staff provide the Board with more information pertaining to the appeal.  Any information received will be shared with both parties to the appeal.

Appeal Hearing Procedure

27.Upon receiving the appeal materials from the Secretary-Treasurer, the Board shall, without delay, establish a date for the hearing of the appeal, which will be communicated to the parties.  The Board may adjourn the proceeding at the request of either party, or on its own motion, where there are reasonable grounds to do so.

28. The appellant and the employee(s) whose decision is being appealed will have the right to appear before the Board in private session to make representations regarding the appeal, and to ask relevant questions.  The Secretary-Treasurer, the Superintendent (where he or she has not participated in the decision under appeal) and Legal Counsel may attend the private session to assist the Board in its consideration of the appeal.  The affected student, with the consent of their parent/guardian, shall also have the right to make representations directly to the Board at this hearing.  Reasonable time limits will be imposed to govern presentations of all parties.  At the end of each party’s submissions, trustees may ask questions.

29. As an alternative to appearing in person before the Board, the appellant may elect to have the hearing conducted by way of written submissions.  In this event, the parties will be provided with a schedule for the delivery of initial and reply submissions to the Board.

30. At least seven (7) days prior to the date scheduled for the hearing of the appeal, or the exchange of initial written submissions in the cases of a written appeal, VSB staff and the appellant must provide each other with any documents or information they intend to rely on at the hearing of the appeal, and which have not previously been exchanged.

31. A joint statement of agreed upon facts may be submitted to the Board to expedite the hearing.

32. When questioning by the trustees is complete, the parties leave and the Board meets to decide how it will dispose of the appeal.  The Board will decide the appeal based on the oral and/or written submissions presented to it.

33. At any time the Board may request further information from the parties and may adjourn in order that such information may be obtained.

34. The Board may make any interim decision it considers necessary pending the disposition of the appeal.

35. The Board may invite submissions from any person whose interests may be affected by the Board’s decision on the appeal, and those submissions may be made available to the parties where appropriate.

36. The board may refuse to hear an appeal where:

(a) the appeal has not been commenced within the time set out in paragraph 10;

(b) the student and/or parent/guardian has refused or neglected to discuss the decision under appeal through Step 1 of the process, or to meet with the Superintendent or delegate or such other person as directed by the Board; or

(c) the decision does not in the Board’s opinion significantly affect the education, health or safety of the student.  

37.The Board must make a decision within 45 days from receiving the Notice of Appeal.  The parties will be promptly notified of the Board’s decision.  Written reasons will be provided to the parties as soon as practicable.

38. The Board’s decision is final, subject to any rights to appeal under theSchool Act.  The Board may reconsider its decision only:

a) if it is satisfied that new evidence or information would have a material effect on the decision and that the failure to present that evidence or information at the original hearing is satisfactorily explained;

b) the decision contravenes law; or

c) a reconsideration is directed or requested in connection with an appeal of the Board’s decision under School Act section 11.1. 

 39. Appellants who have appeal rights under School Act section 11.1 will be advised of those rights when or before they are notified of the Board’s reasons for decision. 

Last Update: May 2008