Focus On

Lack of private school regulation continues in Ontario | Andrew Rogerson

Tuesday, October 05, 2021 @ 2:03 PM | By Andrew Rogerson

Lexis Advance® Quicklaw®
Andrew Rogerson %>
Andrew Rogerson
The CBC article of Sept. 15, 2021, “GTA teacher stripped of licence because of sexual impropriety now heads private school,” sadly comes as no surprise. While it is encouraging to see that the teacher in this case was stripped of their licence, the same issue was discussed in a 2015 story in the Toronto Star, which highlighted that teachers at private schools are often disciplined behind closed doors, or not at all.

This problem is nothing new, nor is it a secret. Ontario’s auditor general declared in a 2013 audit that the province had “one of the least regulated private school sectors in Canada.” However, despite these flags being raised, the unfortunate and painful reality is that it is our children who often bear the consequences of our private schools operating outside the jurisdiction of provincial education authorities. 

In the recent case, the spokesperson for the Ontario Ministry of Education responded that “private schools operate as businesses or non-profit organizations, independently of the Ministry, and therefore set their own policies and procedures related to safety and behaviour,” and that “parents, guardians and students should do their own research before registering for private schools, including getting information about a particular school’s educational program, business practices and other policies.”

With respect, this response is ridiculous. How can a parent access criminal records of teachers? How is it realistic for a parent to check the discipline record of each teacher at each private school they may apply to for their child?

Although private schools here are, by and large, exempt from most provisions in the Education Act and anti-bullying legislation, the provincial minister of education could easily change legislation to reverse carve-outs for private and independent schools.

To my knowledge, most private schools provide excellent education in a caring environment. The vast majority would have nothing to fear from being forced to employ qualified teachers (who are subject to discipline by their own professional body) and to be subject to light government oversight to prevent abuse from being covered up. Private schools in Ontario reduce the burden on other taxpayers: parents pay taxes and levies to fund school board schools and pay as well to obtain private education. In light of this fact, and the significant risk to our children, would it not be in the government’s best interest to protect the safety of children within private schools while simultaneously ensuring the taxpayer continues to receive this source of funds?

The courts have occasionally intervened to curb the excesses of some, and I stress some, private schools. After the Divisional Court ruled in Setia v. Appleby College 2012 ONSC 5369 that Appleby College was subject to judicial review as it was created by Act of Parliament, the following private schools intervened to try and get the decision overturned in the Court of Appeal: Havergal College, Upper Canada College, Ridley College, Bishop Strachan School, Trinity College School and St. Andrew’s College.

One wonders how many parents of children at these schools were aware that the schools were spending their child’s tuition fees on overturning the court’s ruling that Appleby College had acted unlawfully. Would the money not have been better spent on ensuring the safety of children at their own school by introducing external oversight?

If private and independent schools pay lip-service to prevention of bullying, yet pretend it is not happening, to protect the children of prominent families, then the loss to all private and independent schools will be much greater. The negative publicity, which of late several private schools have endured as a result of turning a blind eye to bullying, is surely far worse than losing the support of a few famous parents.

No article such as this would be complete without paying tribute to Toronto lawyer and former ministerial aide Allan Kaufman, for the brave stand he took against the private Leo Baeck Day School that refused readmission to one of his sons because Kauffman had complained about the school failing to stop his other son from being bullied. In granting an injunction restraining the school from this, essentially unlawful expulsion, Justice Romain Pitt said in Kaufman v. Leo Baeck Day School [2004] O.J. No. 3488:

[13] ... a very strong case can be made … against a … school that denies re-entry to a 7 year old innocent child, without a hearing, on the basis that the poisoned ... atmosphere created by a dispute with respect to an older child, make it impossible for the parties to work effectively in the interest of the innocent child.

[14] … [the school’s arguments that it had a right] “to require the withdrawal of any student at any time”…., is not supported by any legal precedent or principle.

[15] The … [school’s] argument that a future working relationship is impossible flies in the face of the responsibility of schools to children generally; and what is more, rests on the false assumption that the school principal and teachers are not mature enough to “let bygones be bygones” in the interest of an innocent 7 year old child.

[16] … I would have thought it self evident that the expulsion from school or denial of the right to re-entry to school of an innocent 7 year old child on the grounds of a major dispute between school and parents with respect to an older sibling would cause irreparable harm to both the innocent child and parents.

[18] … the school’s decision must necessarily have a severe negative impact on the child’s perception of justice and fairness at such an early stage of his life.

[20] … to pose the question [of balance of convenience] is to answer it. There is no real contest. The balance of convenience clearly favours the plaintiffs.

Given the considerable consequences that children bear as a result of the failure to properly regulate private schools, it behooves our political leaders to take action and increase oversight.  

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.

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso-Barrett at or call 905-415-5811.