Laying Out the Issues
Before the hearing, you will need to be prepared. Get ready to explain each issue you thought about for your pre-hearing report. Think about any facts or arguments that might help prove that something did or did not happen, or that something should have been done to prevent or avoid the circumstance that led to your child's expulsion.
Think about the other party’s side of the story: In what ways do you disagree? What did the other side leave out? How should you respond? What witnesses do you think you will need?
Getting to Know the Law
It is important that your arguments against the expulsion are based on factors listed in the Education Act (listed in the law section) and also that they make sense considering other decisions made by this appeal board.
It will be helpful for you to read these sections and think about ways you think the expulsion decision went against the Education Act rules and/or other Board decisions in other similar cases.
Write down the names of the cases you think are similar to yours that help explain your point of view, and write down the sections of the law that you think were not correctly applied in your case.
***NOTE: Wherever the expulsion decision you want to appeal doesn’t line up with the law, make sure you raise this in your case, and as part of the questions you ask your witnesses. For example, the Individualized Education Plan (IEP) is a legal requirement for in-school support. Was there a kind of support outlined in the IEP that was not followed? Could the circumstance leading to expulsion have been avoided if the IEP had been followed as it was written?
Not everyone needs witnesses at the hearing. You may not need witnesses if you are the only person with first-hand information about your side of the story. If someone else has experience or information that supports your side, then you should probably bring these people in as witnesses.
- Write down questions you want to ask your witness(es). Your questions should help your witness talk about the things that you think are important for making your case.
- Meet with the witness(es), tell them why you have asked them to speak for you, and practice asking them your list of questions.
Pick your witnesses carefully:
- Make sure your witnesses will support what you are trying to prove. (For example, before calling your child’s teacher, think about whether he or she will likely offer details that support your argument)
- Remember that people who may be prejudiced are not usually good witnesses.
- Remember that people who do not know about your exact situation are not usually good witnesses.
- If you’re worried that your witness may not show up, you can ask your case coordinator to help get a summons so that they will have to appear.
- Any documents you are planning to use to support your case must be sent to the appeal board and the other party at least 10 days before the hearing
- You can use any document that helps explain or support the specific issues you have raised. Examples might be emails, assessments or doctor’s reports.
Remember: documents that are not about the student’s issues or the expulsion (e.g., anything found on the Internet or in a newspaper) ARE NOT usually allowed as evidence.
Service of Documents
When you give official documents to the appeal board, you also have to tell them how and when you gave the same official documents to the other parties. You can send documents to the other parties by mail or in person. If you are not sure where to send them, ask your case coordinator for help.
Motions are orders you would like the appeal board to make. For example, if you would like to delay the hearing, you would ask the board to approve a motion of delay, and explain why it is important. Motions may be brought in any form, but you must explain exactly what you want the appeal board to do (delay the hearing, exclude some evidence or a witness). You will need to give facts and reasons to support your request.
A hearing is held in private unless someone brings a motion asking for it to be open to the public. If you want your hearing to be open to the public, you will need to make a pre-hearing motion asking for the hearing to be open.
Pre-hearing motions must be made no later than 2 days before the hearing, or may be made at the start of the hearing (so long as you can explain why it was not done prior to the hearing).
The term disclosure refers to the exchange of official documents and evidence between the parties. The school board will give you copies of all the things they plan to use to make their case, and you will give them copies of anything you will use to make yours. Any evidence either side wants to use at the hearing has to be given to the parties and the appeal board no later than 10 days before the hearing.
If you find important evidence after the deadline, you can bring it to the hearing and the appeal board members (a 3-person panel) will listen to your explanation about why it is important and why it is late. They will decide whether or not you can include it. In most cases, the new evidence will be allowed to be used after the other side has had a chance to look at it.
What Happens at the Hearing
Who’s in the Room
- Three appeal board members will be at the front. One of them, the presiding member, will run the hearing.
- The other party (the school board) and maybe their representative.
- You (and maybe your representative or support person).
- The student whose expulsion is being appealed has the right to be present at the hearing and to make a statement on his or her behalf, whether or not the student is a party to the appeal.
At the Beginning
- Before the hearing starts, the presiding member will ask any witnesses to leave the room until it is their turn to testify. This is done so that the witnesses won’t change their story after they have heard other witnesses, or be influenced by what others say.
- The presiding member will then ask whether anyone has any questions. This is your chance to get more information about something you do not understand or to request a delay if you are not ready for the hearing.
Motions Made in the Hearing
- Motions allow parties to ask the presiding member to make a decision on a request. An example of a request could be that a party needs more time to prepare or that a witness or document isn’t helpful.
- You must give reasons for your motion. If the other parties make a motion, you have the right to comment or object.
- The panel will consider everything that is said and say yes or no to the motion.
When a piece of evidence is given to the Panel to be used in the hearing, the evidence is given a number and it becomes an exhibit. Exhibits are papers, reports, videos, or anything that you wish to use as evidence.
- The best time to present items as evidence is when the person who knows about them speaks. If there is no witness, you should give the exhibits to the panel at the time when the exhibits can best support what you are trying to say.
- Sometimes a presiding member of the board (the chair) will ask for all the exhibits to be submitted at the beginning of the hearing.
- Each exhibit will be given a number by the panel. Be sure to write down these numbers and say the number of each exhibit when you talk about it. Doing this will help the panel keep things straight, and make the hearing run more smoothly.
- Either party can object to each other’s exhibits. If you object to an exhibit you must give reasons why you do not think it will be helpful to the hearing.
The School Board will Present First
- The school board representatives will ask their witnesses questions. The questions are supposed to provide facts and information about the situation. Pay attention to anything the witness says that you think is important or incorrect.
- You will have a chance to ask each of the school board’s witnesses questions. You can challenge their opinion and ask them about other facts that might support your version of the events.
You Will Then Make Your Case
- If you do not have a representative, simply tell your story. If you have a representative, that person will ask you questions to go through your story. The appeal board panel may ask you some questions either while you are speaking or afterward. If you have other witnesses, you may ask them questions about what they know that supports your case.
- The other parties will have a chance to ask you and each of your witnesses some questions. Answer honestly and directly. If you do not understand the question or don’t know the answer, just say so.
- Sometimes new issues or information comes up when the other side is questioning you or your witnesses. If this happens, you can ask more questions about those new points. But, when questioning a witness for the second time, you must only ask about the new information. You cannot ask the same questions as you did before.
Using Witnesses to Help Make Your Case
- Call the witnesses in an order that helps tell your story in a clear way.
- When you call your witnesses, you should use open-ended questions; do not use questions that suggest what the answers might be.
- Never comment on the answer given by a witness.
- When questioning the other side’s witness, you can suggest an answer and then ask the witness “yes or no?”
- If you have information that goes against what a witness is saying, ask the witness about it.
- If both parents are there, one parent may act as a representative and ask questions. The other parent becomes a witness and may be cross-examined by the other side.
- If you question your witness a second time, you can only ask about anything new that came up while they were being questioned by the other side. You can’t ask your witness the same questions.
- You should never interrupt the witness while the person is speaking. Save your thoughts about what they are saying for your testimony or for your closing statement. You will be given your chance to say how you disagree.
- You are trying to convince the panel that your version of the story is true. Stick with the facts, information and experiences that help the panel to see your side of the story.
- It is important that your story is supported by the rules described in the Education Act and its regulations, and that it is similar or consistent with other decisions made by this appeal board.
- If you or the other party thinks that a question should not have been asked, an objection can be made.
- If you want to object, tell the panel; do not talk to the other side about it. Always speak to the presiding member.
- Once an objection is made, both sides will have a chance to give reasons why a question was or was not fair. The panel will then decide.
Once all the witnesses have spoken and the exhibits have been shared, the panel will ask each side to explain why, based on the information that came out of the hearing, and based on the law, a decision should be made in their favour. Prepare an outline of what you want to say during your final argument.
- This is not the time to testify all over again.
- Instead, go over the best evidence that supports your side of the story and review the reasons why the other side’s case is weak.
- Focus on the places where what the school board did was not in line with the law.
- Tell the board what you would like them to remember as they leave to make their decision.
Once the hearing has ended, the panel meets to talk about the facts, information presented, and the law. Only panel members who heard all the evidence will take part in making the decision. The decision is based only on the evidence given at the hearing.
If You Disagree
The decision of the tribunal is final and binding. You do not have the right to appeal or to apply for a re-hearing. If you think that the hearing was unfair, or that the decision was not reasonable or correct, you can ask a court for a judicial review. It is a good idea to talk to a lawyer first.
The Ombudsman does not have the power to overturn decisions or change tribunal decisions, but If you believe you were treated unfairly by an administrative tribunal you can make a formal complaint with the Ombudsman. If the Ombudsman agrees, he can make recommendations to the tribuanl to address the problem, and he can also make recommendations about government legislation, policies or programs. For more information on the powers of the Ombudsman over tribunals, go to: Ombudsman Ontario