Focus on "accepting" or "anti-bullying" in schools? 

publication 

May 2012

Employment and Labour Bulletin

As of May 3, 2012, Bill 13, Accepting Schools Act, 2011, has passed second reading, and referred to the Standing Committee on Social Policy. Bill 14, the Anti-Bullying Act, 2012, a parallel private member's bill, was ordered re instated at the Standing Committee on Social Policy, also to be considered in the public debates. Central to both bills is the introduction of amendments to the Education Act, aimed at addressing bullying in the public school system, though each has a markedly different focus. Dates for public hearings have been scheduled for clause-by-clause discussion of the bills.

The Liberal government's introduction of Bill 13 came soon after Ontario witnessed the tragic suicides of two of its pupils in the late fall of 2011: 15 year old James Hubley in Ottawa, and 11-year old Mitchell Wilson in Pickering. Both had experienced bullying at school, James because he was openly gay, and Mitchell partly due to his physical disability. James' desire to start a Rainbow Club at his high school to promote acceptance of others had also been met by derision from other students. Premier McGuinty has stated that the deaths of James and Mitchell were in his mind when Bill 13 was introduced.

The focus of Bill 13 is the creation of safer and more accepting school environments, and more particularly, the provision of specific support for at risk youth identified as lesbian, gay, bisexual, transgendered, transsexual, two spirited, intersexed, queer and questioning ("LGBTTIQ"). Details of the proposed changes that Bill 13 would make to the Education Act include:  

  • An amendment to the Education Act to include a definition of bullying;

  • The requirement that school boards promote a positive school environment which is inclusive and accepting of all pupils, and supports the activities and organizations of pupils promoting gender equity, anti racism, understanding and respect for people with disabilities, and people of all sexual orientations and gender identities, including groups with the name gay-straight alliance ("GSA") or another name;

  • More severe consequences, including suspension and expulsion, for bullying and other activities by pupils motivated by bias, prejudice or hate in schools;

  • A proclamation that the third week in November is Bullying Awareness and Prevention Week;

  • The requirement that boards entering into agreements with organizations using the school premises must include a term in the agreement that the organization must follow standards consistent with the provincial code of conduct established by the Minister;

  • Further requirement that boards develop policies and guidelines, including supports to pupils, on progressive discipline, bullying prevention and intervention, as well as develop and implement equity and inclusive education policies; and

  • An additional requirement that boards report on progress with respect to the goal of creating a positive school climate for all pupils.  

The same day that Bill 13 was introduced, the minority Conservative government responded with a private member's bill.1 Bill 14, the Anti-Bullying Act, 2011, does not refer to GSAs, the promotion of a positive school environment, nor acceptance of pupils of all backgrounds. It focuses instead on a strong and all-encompassing anti-bullying message, with no specific mention of LGBTTIQ people (or any other group).  

Bill 14 also differs from Bill 13 in a few significant areas:

  • It acknowledges that bullying is often a group activity, which Bill 13 does not, and that both the bully and the victim of bullying need to be addressed;

  • It stipulates accountability for keeping statistics, including mandatory reporting by principals to school boards of all incidents of bullying, for the purpose of long-term tracking of incidents and progress;

  • It does not highlight any particular groups of pupils that tend to be victims of bullying, but stresses instead a "safe and inclusive learning environment";

  • It references and parallels recently passed legislation, Bill 168, dealing with workplace violence and harassment amendments to Ontario's health and safety legislation, addressing bullying in the workplace; and

  • It does not require school boards to adopt policies promoting a positive school environment inclusive and accepting of all pupils and promoting the prevention of bullying, nor does it require school boards to develop and implement any equity and inclusive education policy.

The most vocal criticism against Bill 13 has come from the Catholic groups and parents, as well as growing support from other religious groups, concerned about the right to religious and parental freedom.

The protests over Bill 13 have been focused almost entirely upon a concern over the mandating of GSAs where demanded by any pupil, and how this compromises religious teaching and/or family values. There is also some concern over a possible burden placed on school boards to vigilantly monitor the conduct of third parties that use or lease space from public schools. This concern is highlighted by recent media reports of a York Region police investigation of complaints over anti-Jewish teachings at a Muslim Sunday school renting space in a Toronto public high school.

The Minister of Education, Laurel Broten, has stated that the best parts of Bill 14 will be incorporated into Bill 13. Such a compromise is unlikely to alleviate those opposed to a core part of Bill 13: the creation and promotion of school environments that are accepting of LGBTTIG people.

The government's aim is to have Bill 13, possibly with parts of Bill 14 incorporated, passed in time for the 2012-2013 school year. School boards and other education stakeholders are counseled to seek advice regarding the scope of these new obligations.

by Lai-King Hum

1 Bill 14 was sponsored by Elizabeth Witmer, the recently resigned MPP for Kitchener-Waterloo. Lisa MacLeod, member for Nepean-Carleton, has been designated as the new member sponsoring Bill 14.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2012