Sigrist and Carson v. London District Catholic School Board, 2010 HRTO 1062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dylan Sigrist by his litigation guardian Lori Sigrist and Andy Carson by his litigation guardian Paula Soares-Carson

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

London District Catholic School Board, Gary Clarke, Jeff Gillies, Joseph Rapai, Terry Grand, Anne Kavelaars, Evelyn Paparella, Tamara Nugent and Des Desalaiz

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 12, 2010 Citation: 2010 HRTO 1062 Indexed as: Sigrist and Carson v. London District Catholic School Board

WRITTEN SUBMISSIONS BY

Dylan Sigrist, Complainant ) Lori Sigrist, Litigation Guardian Andy Carson, Complainant ) Paula Soares-Carson, Litigation Guardian London District Catholic School Board, Gary Clarke, Jeff Gillies, Joseph Rapai, Terry Grand, Anne Kavelaars, Evelyn Paparella, Tamara Nugent, and Des Desalaiz, Respondents ) Eric M. Roher and Melanie A. Warner, Counsel Ontario Human Rights Commission ) Tony Griffin, Counsel Special Education Tribunal ) Lucy McSweeney, Counsel Her Majesty the Queen in Right of Ontario as represented by the Minister of Education ) Karen Inselbacher, Counsel

Process

1This Decision addresses the following two issues: whether the Special Education Tribunal (“SET”) established under the Education Act, R.S.O. 1990, c. E.2, as amended, has exclusive jurisdiction over matters relating to the identification, placement and accommodation of students with special needs, such that this Tribunal has no jurisdiction to deal with such matters; and whether this proceeding should be dismissed for mootness in light of the age and grade level of the two complainants.

2At a pre-hearing conference call held on April 20, 2009, I requested submissions from the parties on these two preliminary issues.

3In my Interim Decision dated April 29, 2009, 2009 HRTO 527, I confirmed the schedule for the filing of submissions as directed on the pre-hearing conference call. I also directed that notice of the jurisdictional issue be provided to the Ministry of Education and the Special Education Tribunal, and invited them to make submissions.

4By letter dated May 26, 2009, the SET requested an opportunity to make submissions after all parties to the proceeding had filed their submissions, with the parties being afforded an opportunity to respond to the SET’s submissions. After inviting submissions from the parties on the SET’s request, the Tribunal established a revised timetable for receipt of submissions from the parties, with the SET and the Ministry being granted until October 15, 2009, to make submissions and timelines set for the parties to make any submissions in response.

5Written submissions were received from all parties, as well as from the SET. The written submissions filed by the SET were adopted by the Ministry of Education.

6On January 28, 2010, I issued a further Interim Decision, 2010 HRTO 202, to invite submissions from the parties regarding the SET decision in W.F. v. The Ottawa Catholic School Board (2008) OSET No. 2008-02. which had not been cited by any of the parties. Written submissions were received from the parties and from the Ministry of Education. The SET declined to make submissions on this decision.

The Scheme under the Education Act

7In preparing this section of the decision, I have drawn heavily from the submissions filed by the SET and supported by the Ministry of Education, which were clearly and helpfully expressed. None of the parties took issue with the process as described in the SET submissions.

8The Education Act requires school boards to provide special education programs and services to pupils identified with one or more “exceptionalities” (which includes both disabilities and giftedness), and sets out a regime for the identification and placement of such students.

9Subsection 8(3) of the Education Act requires the Minister to define exceptionalities of pupils and to describe classes, groups or categories of exceptional pupils for use by school boards. This section also requires that the Minister ensure that appropriate special education programs and services are provided in accordance with the Act. The Act also mandates school boards to provide or purchase special education programs and services for exceptional students, in accordance with the regulations: see s. 170(1).7.

10The Education Act and Regulation 181/98 under that Act set out a scheme for the identification and placement of exceptional students, and then for resolving special education disputes between parents and school boards. This process includes:

a. The establishment of Identification, Placement and Review Committees (“IPRCs”) for the purposes of identifying a student as exceptional, placing the student in a placement with the appropriate services and accommodations, and annually reviewing the student’s identification and placement; and

b. The establishment of a two-step appeal process: first, to a Special Education Appeal Board (“SEAB”) where recommendations are made to the school board regarding identification and placement; and second, to the SET which renders a final and binding decision on identification and/or placement.

Identification, Placement and Review Committees

11Regulation 181/98 describes the IPRC process for identifying a child as exceptional. Upon receiving a written request from a student’s parent, the principal of the school must request an IPRC meeting for the student: s. 14(1)(b). The principal is required to respond to the parent with an approximate date and time for the IPRC meeting within 15 days of receiving the request. The principal may also, on written notice to the parents, refer the student to an IPRC.

12In either event, the IPRC will decide whether the student is an exceptional pupil. An exceptional pupil is defined in s. 1(1) of the Act to mean a “pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need a placement in a special education program”. If a student is identified as exceptional, the IPRC will also specify the type of educational placement that is appropriate.

13The IPRC is comprised of three persons appointed by the school board, one of whom is required to be the principal or a supervisory officer of the board: O.Reg. 181/98, s. 11(2). The IPRC meets and hears from parents, teachers and often other health/education professionals on the issue of the appropriate identification and placement of the student: s. 15(1) to (9). The parents, as well as a student who is 16 years of age or older, have the right to attend the IPRC meeting, to have a representative present at the discussion to speak on their behalf or otherwise provide support, and may participate in all committee discussions about the student. The IPRC may discuss any proposal for special education services or special education programs, and is required to discuss any such proposal at the request of a parent or student who is 16 years of age or older: O.Reg. 181/98, s. 16(1).

14Once the IPRC considers all the information, it makes a decision on identification and placement. First, it determines whether or not the student is exceptional. If the student is identified as exceptional, then the IPRC determines the proper placement that will serve the student’s needs. The IPRC’s statement of decision is required to include a description of the student’s strengths and needs, the categories and definitions of any exceptionalities identified by the committee, and the placement, as well as any recommendations regarding special education programs and services: O.Reg. 181/98, s. 18.

15Before considering the option of placing a student in a special education class, the IPRC must first consider whether placement in a regular class, with appropriate special education programs and services, would meet the student’s needs and be consistent with the parents’ preferences: O.Reg. 181/98, s. 17. Where placement in a special education class is deemed most appropriate, the IPRC must provide written reasons for its decision.

16For students whose needs cannot be met entirely in the regular classroom, or whose parents are seeking a placement other than a regular classroom, a range of placement options is available. The IPRC may also consider referring the student to a provincial committee for consideration of eligibility for admission to one of the Provincial Schools for blind, deaf or deaf-blind students, or to one of the Provincial Demonstration Schools for students with severe learning disabilities.

17If a student has been identified as exceptional through the IPRC process, an Individual Education Plan (“IEP”) must be developed by the school board within 30 school days of the implementation of the IPRC decision, and the principal is required to ensure that the parent receives a copy of the IEP: O.Reg. 181/98, s. 7. All IEPs are expected to meet the Ministry of Education’s IEP standards as outlined in its policy documents.

18The regulations provide for a review of a student’s placement at least once a year, and the parents can apply every three months for a review without the necessity of quashing any previously-made decision: O.Reg. 181/98, s. 21. A parent’s recourse to the IPRC has been described by the Divisional Court as “virtually wide open”. See Dolmage v. Muskoka Board of Education et al (1985) 1985 CanLII 2064 (ON HCJ), 49 O.R. (2d) 546, at p. 4.

Special Education Appeal Boards

19Regulation 181/98 provides a mechanism for a parent to appeal the identification and placement decision of an IPRC to an SEAB. If a parent disagrees with the IPRC’s identification of the student as exceptional and/or with the IPRC’s placement decision, the parent may give written notification of her or his intention to appeal the decision to the secretary of the school board: s. 26. The school board will then establish an SEAB to hear the appeal. The SEAB is composed of three members: one member selected by the school board; one member selected by the parent; and a Chair who is selected jointly by the board’s and the parent’s nominees: s. 27(1).

20The meeting of the SEAB is conducted informally, and the parties are given an opportunity to speak or bring others to speak on their behalf. The SEAB receives the material reviewed by the IPRC and may interview any persons who may be able to contribute information. The parties have an opportunity to present information while the SEAB members listen and ask questions. The purpose behind the intermediary step of the SEAB process is to allow the parties once more to discuss their views with the help of SEAB members selected by the parties, with the aim of resolving the parents’ concerns.

21At the conclusion of the SEAB meeting, the SEAB must make its recommendations on the identification and/or placement of the student to the school board within three days. The school board is required to consider the SEAB recommendations and decide what action to take in light of these recommendations within 30 days: s. 30. The school board has the ability to change this decision in certain circumstances, or may reach an agreement with the parents to resolve the matter: s. 31.

The Special Education Tribunal

22Section 57(3) of the Education Act provides that when parents have exhausted all of their appeal rights up to the point of the school board’s decision following an SEAB recommendation and remain dissatisfied with the identification and/or placement of their child, they can appeal to the SET. The SET is the final step within the education system for parents to appeal a decision of their school board concerning the identification and/or placement of their child. The SET’s decision is final and binding on the parties: Education Act, s. 57(5).

23The appeal before the SET is a hearing de novo, and typically involves lay and expert evidence led by both parties. The central focus of the SET is the best interests of the student. The SET is empowered to dismiss the appeal, grant the appeal or make any other orders it considers necessary with respect to the identification and placement of the child: Education Act, s. 57(4).

24In considering an appeal from an identification decision, the SET applies the categories and definitions of exceptionalities established by the Ministry for the use of school boards when considering a student’s identification as exceptional.

25In considering an appeal from a placement decision, the SET considers all potential placement options and orders the placement it finds to be in the student’s best interest, including some programs and services which must be obtained from other school boards.

26“Placement” is not defined in the Education Act or regulations. The jurisprudence of the SET over the past 25 years has established that in order to reach an informed decision about placement, the SET must consider both the student’s needs, as identified by the parties and qualified professionals, as well as the appropriate programs and services which must be made available to meet those needs. The SET has held that a placement is more than a description of a physical location where a child is placed to receive a special education program. Decisions on placement necessarily involve a description of the programs, services and accommodations needed by the student to give effect to the placement. Examples from the SET’s jurisprudence include: I. v. Toronto District School Board (2005) OSET #46c, upheld on judicial review [2006] O.J. No. 2740 (Div.Ct.); D. v. Windsor-Essex Catholic District School Board (2003) OSET #38; see also C. v. Simcoe County District School Board (2003) OSET #34, at p. 2, upheld on judicial review [2005] O.J. No. 2124 (Div.Ct.).

27The SET is mandated to hear and consider the steps taken by the school board as well as the approach advocated for by the student’s parents. There is a broad range of types and severities of exceptionalities which can affect a student’s ability to access the curriculum at school. Often, there are conflicting expert opinions on the most appropriate services and accommodations for meeting the needs of exceptional students. School boards, teachers, parents and the student her- or himself may each have views on what kind of placement is the most appropriate. As a panel of neutral adjudicators, and experts in special education, the SET must reach a decision consistent with the best interests of the student based on the facts and evidence presented. The SET does not necessarily choose between the school board’s or the parents’ preferred options, but rather makes its own determination based on the student’s best interests.

28In advance of the hearing on the merits, the SET offers mediation to the parties by trained SET members, in order to support the goal of encouraging dialogue and dispute resolution. Mediation is also available at any time during the appeal process in an effort to assist the parties to come together and resolve some or all of their differences.

29In the process of deciding issues relating to identification and placement, the SET frequently hears evidence of communication difficulties between the parties, about safety concerns, or relating to delays in the IPRC process. While the SET cannot sanction prior conduct of the parties, as a matter of practice the SET does make non-binding recommendations with respect to such issues in order to facilitate future communication and dealings between the parties. See for example I. v. Toronto District School Board, supra.

30The SET has developed its own rules of procedure, which includes the requirement that decisions be issued within 90 days of completion of the hearing, and also provides information about its guidelines, forms, decisions and procedures through its website.

Expertise of the Special Education Tribunal

31As stated in the submissions received from the SET, the cases that come before the SET require it to consider detailed evidence of a student’s special education needs, including intellectual, communication, physical, emotional, behavioural and social needs, while striving to foster a more positive relationship between parents and the school board. Adjudicating these complex cases requires extensive knowledge, sensitivity to and understanding of exceptional children. It also requires knowledge of the legal framework applicable to special education, as well as knowledge of teaching and learning strategies. Expert witnesses often appear before the SET and give opinions on key issues relating to a broad array of exceptionalities.

32The SET’s chair and members are appointed by Order-in-Council by the Lieutenant Governor in Council. The SET states that all of its members have extensive experience with exceptional children and with the legislative scheme relating to special education in Ontario. Appointees include educators, special education specialists, and those with past involvement with special education associations. Half of the SET members have been educators for more than 30 years, as special education teachers and school administrators. Some have been, or presently are, professors in education departments in the area of special education, while others have written textbooks and articles on exceptionalities and special education in general. Many have been extensively involved on boards or associations dedicated to issues of special education, such as the Learning Disabilities Association of Ontario and the Council for Exceptional Children. A number of members are parents of exceptional children and have been involved in associations for parent advocates. The SET also sponsors and encourages its members to take part in formal adjudication training opportunities, both externally and internally.

33The SET’s expertise in special education matters has been recognized by the courts and by this Tribunal. See Ismail v. Toronto District School Board [2006] O.J. No. 2470 (Div.Ct.) at paras. 40-41; Eaton v. Brant County Board of Education 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241; Campbell v. Toronto District School Board, 2008 HRTO 62, at para. 54.

Does the SET have Exclusive Jurisdiction?

Legal Principles

34In this case, as in Quebec (Attorney General) v. Quebec (Human Rights Tribunal) 2004 SCC 40, [2004] 2 S.C.R. 223, I need to examine two legislative schemes to determine which of the potential adjudicative bodies was intended by the Legislature to resolve a dispute, and if more than one body has a claim to adjudicative jurisdiction, how the potential conflict of jurisdiction is to be resolved.

35In making this determination, there are three possibilities. The Legislature may permit different tribunals to exercise “concurrent” jurisdiction. Or it may permit different tribunals to decide different aspects of a decision, which is an “overlapping” jurisdiction model. Or it may confer “exclusive” jurisdiction on a particular tribunal, with the result that only that tribunal can decide the issue.

36In Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, the Supreme Court of Canada rejected the concurrent and overlapping jurisdiction models in the context of deciding whether a labour relations dispute arising out of a collective agreement could be the subject of a civil action in the courts, in favour of an exclusive jurisdiction model. The rationale for rejecting the concurrent and overlapping jurisdiction models in favour of the exclusive jurisdiction model was expressed as being that the Legislature had established a comprehensive code governing labour relations, and that it would offend this legislative scheme to permit the parties to have recourse to the ordinary courts which would be a duplicative forum.

37The same principles apply where the jurisdictional contest is between two adjudicative bodies established by statute. See Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners 2000 SCC 14, [2000] 1 S.C.R. 360; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), supra.

38In order to resolve this issue, I need to determine the intention of the Legislature in setting up the competing legislative schemes and determine which model the Legislature intended to utilize. It is not my role to substitute my preference for that of the Legislature. Once the intent of the Legislature has been discerned, it is my role to respect the choice made by the Legislature rather than to make a determination based on policy considerations that I believe favour one tribunal over another. See Quebec (Attorney General) v. Quebec (Human Rights Tribunal), supra, at paras. 35, 41.

Did the Legislature intend to confer exclusive jurisdiction on the SET?

39In my view, there can be no dispute that the Legislature has established a comprehensive scheme under the Education Act to deal with the identification and placement of students with disabilities and the special education programs and services to be provided to these students. As described in detail above, the Legislature has established a multi-layered process that is expressly and exclusively focused on this task, starting with the IPRC process at the initial level, moving through two levels of review, and concluding with the right to a full hearing before a specialized tribunal with the specific expertise required to determine these issues and the power to make a final and binding determination.

40In contrast, the competing legislative scheme under the Code arises in relation to the general right of a person to equal treatment without discrimination in respect of goods, services and facilities, which has been interpreted to include educational services. While members of this Tribunal are required to have and do possess general experience, knowledge and training with respect to human rights law and issues (see Code, s. 32(3).1), there is no requirement for members to have any particular or specialized expertise in the areas of the appropriate identification or placement of students with disabilities or the provision of special education programs and services to such students.

41I have considerable sympathy for the proposition that, having set up a comprehensive legislative scheme expressly and exclusively to address issues regarding the appropriate identification or placement of students with disabilities, the Legislature may have intended to confer exclusive jurisdiction over such issues onto the SET. It seems to me that, having set up a comprehensive legislative scheme of this nature, the Legislature may not have intended that parents, acting on behalf of a student with a disability, could effectively opt out of this legislative scheme and take a dispute of this nature to another adjudicative body which lacks the kind of specialized expertise possessed by the SET.

42In my view, to adopt the language of the Supreme Court of Canada, allowing parents to effectively opt out of the process under the Education Act may subvert both the comprehensive and specialized scheme established by the Legislature and the relationship between parents, students and educators that this scheme is intended to foster: see Weber v. Ontario Hydro, supra, at para. 41.

43In my view, recognition that the Legislature intended to confer exclusive jurisdiction on the SET over disputes about the appropriate identification or placement of students with disabilities not only would recognize the comprehensive, specialized and expert nature of the legislative scheme established under the Education Act, but also would avoid the duplication inherent in a concurrent jurisdiction model, the prospect of “forum shopping” by parents, and the determination of these complex disputes by a less specialized tribunal which lacks the SET’s particular focus and expertise.

44The Commission submits that the essential character of the dispute in the instant case is an alleged failure of the duty to accommodate, which arises from the Code, and further submits that the SET does not have jurisdiction under the Education Act to consider whether a school board sufficiently accommodated a student to the point of undue hardship as required by the Code. The proper characterization of the essential nature of the dispute in the instant case is a separate issue from the question as to whether the SET has exclusive jurisdiction over the appropriate identification or placement of students with disabilities, and whether, within that area of jurisdiction, the SET has the ability and/or obligation to apply the duty to accommodate under the Code.

45In my view, the legislative scheme under the Education Act itself is an embodiment of the duty to accommodate under the Code. This scheme recognizes that students with disabilities have special needs for educational programs and services, and establishes a process with involvement of the child, parents and educators to determine the appropriate accommodations required, with the SET functioning as a final arbiter of any disputes on these issues.

46As submitted by the SET, it is not correct to assume that an undue hardship analysis is required in every decision concerning the accommodation of a student with special needs. The focus of the issue for the SET is what is in the best interests of the child, which is consistent with the approach to the duty to accommodate under the Code. The SET states that the issue before it is rarely about how much the school board can do to accommodate a child, but rather whether what has been done is in the child’s best interests, which often requires re-aligning the expectations of the parents and the school board as to what placements and supports are appropriate for the specific needs of the student.

47In any event, where an issue of undue hardship does arise before the SET, the SET has the ability and even the obligation to apply the Code to the issues before it: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513.

48In addressing the issue of whether the SET has exclusive jurisdiction over the appropriate identification or placement of students with disabilities, I have considered not only the comprehensive, specialized and expert nature of the scheme established under the Education Act, but also the fact that this scheme is remedial in nature. I am aware that the SET, in contrast to this Tribunal, does not have authority to award compensatory damages. However, this in my view is not determinative and does not detract from the remedial nature of the authority granted to the SET under the Education Act.

49As indicated above, the SET does have remedial authority to make a final and binding determination on the issue of whether or not a student has a disability and the nature of that disability as part of its mandate to determine the identification of the student as having an “exceptionality” as defined by the Education Act, and also on the issue of the appropriate placement for the student, which under the SET’s jurisprudence includes the issue of the appropriate special education services and supports to be provided to the student. The fact that the SET does not also have authority to award damages does not take away from the remedial nature of the authority that the SET does possess. Nor in my view, is it a proper basis upon which to decide that notwithstanding the comprehensive and specialized scheme established under the Education Act, the Legislature nonetheless intended to allow parents to opt out of this comprehensive scheme and bring their disputes over identification and placement to this Tribunal. As stated by Justice Binnie in Quebec (Attorney General) v. Quebec (Human Rights Tribunal), supra, at para. 41, this is a policy choice for the Legislature to make, and it is for this Tribunal to respect that choice rather than advancing policy considerations as to why a different choice might have been made.

50The Commission notes in its submissions that the SET, while taking the position that it is the most appropriate forum for the resolution of disputes of this nature, does not assert for itself that it has exclusive jurisdiction over such disputes. In my view, the position taken by the SET in this regard was appropriate and respectful of this Tribunal’s obligation to rule on its own jurisdiction. It is for the SET to assert and act upon its own mandate and jurisdiction, and not to tell this Tribunal what its jurisdiction may be. The issue of whether the SET has exclusive jurisdiction over the matters before it simply does not arise for the SET, as it has clear and express statutory jurisdiction under the Education Act. Rather, the issue of exclusive jurisdiction arises for this Tribunal in the instant case as to whether in light of the SET’s express statutory jurisdiction, this Tribunal also has the jurisdiction to deal with disputes of the same essential nature.

51I also am aware that in Quebec (Attorney General) v. Quebec (Human Rights Tribunal), supra, the statutory scheme under the Income Security Act expressly provides that the tribunal established by that Act was empowered to hear appeals respecting income security, among other matters, “to the exclusion of every other commission, tribunal, board or body”: see para. 39. In my view, the absence of a similar provision in the Education Act is not determinative of the Legislature’s intention. In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, supra, while the collective agreement stated that the grievance procedure was not intended to be utilized where the provisions of the Saskatchewan Police Act and regulations thereunder apply, the legislation that governed the competing statutorily-established schemes did not include an express provision of the nature addressed in the Quebec (Attorney General) v. Quebec (Human Rights Tribunal) case. In cases where there is no express statement of exclusivity, the intention of the Legislature needs to be discerned from the legislation and legislative scheme as a whole.

52However, it appears from the SET’s own jurisprudence that in order for the SET to consider itself to have jurisdiction in a particular case, there must be a live dispute regarding the formal placement decision for the child. For example, in W.F. v. The Ottawa Catholic School Board, supra., the SET makes the following statement:

Placement, which is not defined in the Education Act, is intertwined with programs and services. Therefore, when parents are in disagreement with placement, it is important that they state the grounds for their dissatisfaction clearly and specify the remedy that they are seeking. However, when the parents’ dissatisfaction is primarily or exclusively focused on such matters as programming, services, class size, the provision of educational assistant support, staff qualifications, and so on, parents cannot expect the Tribunal to issue orders on these, because it does not have jurisdiction to do so. In L & Conseil des écoles catholiques de langue française du Centre-Est de l'Ontario, 2004, cited by both parties, the Tribunal stated (among other things) that it did not have the jurisdiction to direct school boards to hire staff with specific qualifications, experience or expertise. The Tribunal has not changed its position on this matter.

The Tribunal finds that the dispute between the parties is not about the placement decision itself, but about the details of the child’s programming within that placement. (emphasis added)

53This decision indicates that the SET does not consider itself to have jurisdiction where the dispute is not about the formal placement decision itself, but solely about programs and services within that formal placement. This decision is significant in the instant case, as there appears ultimately to have been agreement between the respondent school board and the complainants’ parents about the formal placement decision regarding their children. The Commission and the complainants take the position that this agreement on formal placement removed the SET’s jurisdiction in this matter and thereby any right they might otherwise have had to appeal to the SET.

54I confess that it is incongruous to me how the SET can say on the one hand that programs and services are integral to the issue of placement, such that it has jurisdiction to consider and make orders about issues relating to programs and services, and yet on the other hand say that it does not have jurisdiction if there is no dispute as to the formal placement. Under the Education Act, the SET has jurisdiction over issues of “identification and placement”. It appears to me that, if “placement” is interpreted to include the programs and services offered within a formal placement, then by logic the SET should have jurisdiction whether or not there is any dispute over formal placement, so long as there is some dispute about programs and services which fall within the SET’s interpretation of the term “placement” in the Act. However, it is not within my role or jurisdiction to rule upon the jurisdiction of the SET under the Education Act. That is an issue that will need to be resolved by the SET itself, or by the court on judicial review.

55As a result, whether or not the SET has exclusive jurisdiction over issues relating to the identification and placement of students with disabilities, the fact that the SET’s own jurisprudence states that it does not have jurisdiction over programs and services where there is no dispute as to formal placement in my view means that in the specific circumstances of this case, I cannot conclude that the SET has exclusive jurisdiction (or indeed any jurisdiction) to address the issues raised on behalf of the complainants. Based upon the SET’s own decisions, the agreement between the complainants’ parents and the respondent school board as to formal placement effectively removed the outstanding issues from the SET’s jurisdiction.

56My determination in this regard is consistent with this Tribunal’s decision in Schafer v. Toronto District School Board, 2009 HRTO 785, which held that a parent’s inability to appeal to the SET issues regarding the supports identified in the Individual Educational Plan (“IEP”), or whether supports identified in the IEP or IPRC were actually being delivered by the school board, meant that such issues could not fall within the exclusive jurisdiction of the SET.

57As a result, in the specific circumstances of this case, I cannot conclude that the issues raised regarding the sufficiency of the programs and services provided to the complainants fall within the exclusive jurisdiction of the SET. Accordingly, the respondents’ request to dismiss this proceeding on that basis is denied.

Should this proceeding be dismissed for mootness?

58All parties are in agreement that the Supreme Court decision of Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, remains the leading case on the issue of mootness. In that decision, Justice Sopinka stated (at para. 15):

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

59It does not appear to be in dispute that the two complainants are no longer registered at the respondent school board. At the time of this decision, Andy Carson is in Grade 9 in the public school system. Dylan Sigrist was enrolled with the public school system for one year following his withdrawal from the respondent school board, but has since been home-schooled. It is not disputed that Dylan’s mother has advised the respondent that Dylan will never be enrolled in a school operated by the respondent board ever again.

60In requesting submissions on the issue of mootness, the parties were invited to make submissions regarding the decision of the Ontario Court of Appeal in Lanark, Leeds and Grenville County Roman Catholic Separate School Board v. Ontario (Human Rights Commission), [1989] O.J. No. 513. I agree with the Commission that the Lanark decision is distinguishable, in light of the change in the law since the underlying decision had been rendered and the change in factual circumstances which made the remedy awarded by the board of inquiry no longer appropriate.

61I accept and adopt the comments made by this Tribunal in Schafer, supra, in which it is stated (at para. 21):

With respect to the alleged failure to accommodate the applicant’s disability-related needs during the 2005/06 school year, there are several aspects of the Application that are not moot, although some of the remedies sought may no longer be available. There is an ongoing dispute between the parties whether the respondent breached the applicant’s rights under the Code during the 2005/06 school year. The fact that the passage of time has made it impossible to provide the educational supports sought for the years 2005/06 to 2008/09 does not mean that no remedy is available. There is considerable importance to a declaration with respect to a breach of the Code and the possibility of general damages.

62Similarly, in this case, while the factual situation has changed such that there does not appear to be any ongoing issue regarding the accommodation of the complainants’ needs within the respondent school board, there remains a live issue as to whether their needs were sufficiently accommodated while they were registered at the respondent board and there are still remedies that can be awarded by this Tribunal, including a declaration, damages and perhaps broader systemic or public interest remedies.

63As a result, the respondents’ request to dismiss this proceeding for mootness is denied.

Case Management

64All parties have agreed that the hearing in this matter should be bifurcated to deal first with the issue of the respondents’ liability and then subsequently, only if a violation of the Code is found, address the issue of remedy.

65All parties have now filed their Hearing Briefs in accordance with the Rules. In reviewing the Hearing Brief filed by the Commission, it appears to me that the matters at issue that are within the scope of this proceeding as it relates to Dylan Sigrist pertain to Dylan’s re-attendance at Our Lady of Lourdes School in the fall of 2005 and the difficulties that ensued throughout the balance of the 2005-06 school year. While the Commission’s Hearing Brief sets out a comprehensive recital of the events from this period, it is not entirely clear to me the specific bases upon which it is alleged that the respondents violated the Code.

66With regard to Andy Carson, the Hearing Brief relates events dating back to the 1999-2000 school year, when Andy was in kindergarten. In this regard, I note that the complaint filed on behalf of Andy is dated June 12, 2006. Under the Code, this Tribunal usually will deal with events dating back for a one year period from when the complaint was filed, which certainly would include the 2005-06 school year. It is not clear to me whether the events from prior school years have been included as background or context, or whether I am being asked to find that Andy’s rights under the Code were violated in those prior years. In addition, as with the events recited in relation to Dylan Sigrist, it also is not entirely clear to me the specific bases upon which it is alleged that the respondents violated the Code in relation to Andy Carson.

67I also am aware that there is an outstanding request by the respondents for the removal of the personal respondents as parties to this proceeding.

68Accordingly, I make the following order. Within 30 days of the date of this Decision, the Commission and the complainants shall serve on the respondents and file with the Tribunal a comprehensive list setting out each specific allegation whereby it is alleged that the respondents violated the Code. In compiling this list, the Commission and the complainants shall have regard to this Tribunal’s decision in Schafer v. Toronto District School Board, 2010 HRTO 403, in which it is held that this Tribunal is not an alternative or substitute body to monitor and regulate the special education scheme under the Education Act and that generally the Tribunal will not second-guess an IPRC placement and recommended accommodations and will not supervise a school’s implementation of an IEP. Rather, the focus of this Tribunal’s inquiry is whether there was a violation of the duty to accommodate under the Code. Also, in compiling this list, the Commission and the complainants are directed to clarify whether they are requesting a finding of any violation of the Code with regard to events pre-dating and/or unrelated to the 2005-06 school year.

69Within 60 days of the date of this Decision, the respondents shall serve and file written submissions in relation to their request for removal of the personal respondents, in light of the specific manner in which it is being alleged that the Code has been breached. If the Commission or the complainants are requesting a finding of any violation of the Code with regard to events pre-dating and/or unrelated to the 2005-06 school year, the respondents also are directed by this date to make any submissions regarding the timeliness of these allegations.

70Within 90 days of the date of this Decision, the Commission and the complainants shall serve and file written submissions in response to the respondents’ submissions, and within a further 14 days the respondents shall serve and file any reply.

71In addition, within 30 days of the date of this Decision, all parties are directed to provide all of their availability for the hearing in this matter in October, November and December 2010.