Donald B. Shanks

The parents of an 18-year-old student with autism appealed a decision of the Appeal Board that upheld an Identification, Placement and Review Committee (IPRC) recommendation placing the student in a home instruction program for seven hours per week.

The parents argued the placement was inappropriate and sought a more flexible, full-time day placement.

The school board maintained that the student's aggressive behaviour necessitated a controlled environment and that no local agencies could provide the requested support.

The Special Education Tribunal dismissed the appeal, finding that the IPRC and Appeal Board decisions met legal requirements and that the home instruction placement was appropriate given the lack of available alternatives, though it strongly urged the parties to obtain a comprehensive assessment from the Geneva Centre for Autistic Persons.

The applicants filed unfair labour practice complaints against the responding party, a tree seedling nursery.

The employer raised a preliminary objection that the Board lacked jurisdiction because the applicants were employed in horticulture, which is excluded under section 3(c) of the Labour Relations Act, 1995.

The applicants argued they were employed in silviculture, an exception to the horticulture exclusion.

After reviewing expert evidence and caselaw, the Board concluded that the employer's primary business was producing tree seedlings for reforestation efforts and that the employees performing that work were employed in silviculture.

Consequently, the Act applied, and the Board had jurisdiction to entertain the applications.