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
Indexed as: Sigrist and Carson v. London District Catholic School Board
wRITTEN SUBMISSIONS BY
Dylan Sigrist by his litigation guardian ) On their own behalf Lori Sigrist ) And ) Andy Sigrist by his litigation guardian Paula ) Soares-Carson, Complainants )
London District Catholic School Board ) Eric M. Roher, Counsel
Gary Clarke, Jeff Gillies, Joseph Rapai ) Melanie A. Warner, Counsel Terry Grand, Anne Kavelaars, Evelyn Paparella ) Tamare Nugent, Des Desalaiz )
Ontario Human Rights Commission ) Tony Griffin, Counsel
Special Education Tribunal, Intervenor ) Lucy McSweeney, Counsel
Her Majesty the Queen in right of Ontario as ) Karen Inselsbacher, Represented by the Ministry of ) Counsel Education and Training, Intervenor )
1At a pre-hearing conference call held on April 20, 2009, I requested submissions from the parties on the issue of whether the Special Education Tribunal (“SET”) established under the Education Act, R.S.O. 1990, c. E.2 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, as well as on whether the doctrine of mootness applies to this matter in light of the age and grade level of the two complainants and on the respondents’ request to remove certain personal respondents as parties to this proceeding.
2In 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.
3By 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.
4Written 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.
5At para. 52 of their submissions, the respondents states that “the decisions of the SET that demonstrate that its practice is to go beyond merely “identifying” and “placing” students, to address full accommodation of the student's special needs”, and then proceed to cite a number of SET decisions in support of this submission.
6At para. 21 of the submissions filed by the SET, it is stated:
The [Education] Act does not limit the definition of ‘placement’ to a narrow scope. The jurisprudence of the SET over the past twenty-five years has established that in order to reach an informed decision about placement, the SET must consider both the student’s needs, identified by the parties and by 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.
7Further, at para. 47 of the SET submissions, it is stated that “the SET’s decisions have established that programs and services are intrinsically linked with placement and therefore are also within SET’s jurisdiction”.
8In this regard, I have become aware of the decision of the SET in W.F. v. The Ottawa Catholic School Board (2008) OSET #2, 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)
9This decision, which was not cited by any of the parties in their submissions, appears to indicate that the SET does not have jurisdiction where the dispute is not about the placement decision itself, but about programs and services within that placement. This decision may be significant in the instant case, as the Commission’s Hearing Brief states at paras. 48 and 85, that the agreement between the respondent school board and the complainants’ parents about the formal placement decision removed their right to appeal to the SET.
10As the above-noted decision was not addressed in any of the submissions filed by the parties, I wish to give the parties an opportunity to make submissions regarding this decision before rendering my decision on the preliminary issues. The parties shall file submissions regarding this decision in accordance with the following schedule:
a. By no later than February 12, 2010, the respondents, the SET and the Ministry of Education shall serve on the other parties and file with the Tribunal any written submissions on this matter;
b. By no later than February 26, 2010, the Commission shall serve and file any written submissions in response; and
c. By no later than March 5, 2010, the respondents, the SET and the Ministry shall serve and file any written submissions in reply.
Dated at Toronto, this 28th day of January, 2010.
“Signed by”
Mark Hart
Vice-chair