COURT FILE NO.: 106/04

DATE: 20040319

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

HALTON DISTRICT SCHOOL BOARD

Applicant

• and -

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL and JENNIFER KERR and GREG HLUSKO

Respondents

R.G. Keel and N. Tymochenko, for the Applicant

G.M. Tuck Kutarna, for the Respondents

HEARD at Toronto: March 17, 2004

O’DRISCOLL J.:

i. Nature of the Proceedings

1The Applicant Halton District School Board (School Board) seeks an interim order under s. 4 of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, prohibiting the Ontario Special Education (English) Tribunal (Tribunal) from proceeding any further with the hearing of an appeal brought by Jennifer Kerr and Greg Hlusko, parents of Jamie Hlusko, pursuant to s. 57(3) and (4) of the Education Act, R.S.O. 1990, c. E. 2. The School Board asks that the proposed interim order of prohibition remain in place pending the outcome of the School Board’s application for judicial review, launched on March 1, 2004, to quash the decision of the Tribunal, dated February 12, 2004.

2The application succeeds.

II. Background and Chronology

3The public School Board is governed by the Education Act. By statute, it is charged with the duty of providing educational and special education services to students residing within the School Board’s area of jurisdiction.

4The Respondent, Ms. Jennifer Kerr, is a trustee of the School Board who was elected in November 2003. She is one of two trustee representatives on the School Board’s Special Education Advisory Committee (SEAC), established under s. 57.1 of the Education Act and Ont. Reg. 464/97.

5The Vice-Chair of the School Board and Ms. Kerr are the trustees representative on SEAC. Ms. Kerr was elected by her fellow members as Chair of SEAC. On March 2, 2004, she was removed as Chair by the other members of SEAC.

6The Respondents, Jennifer Kerr and Greg Hlusko, are the parents of Jamie Hlusko, born June 21, 1989, who is a first year grade 9 secondary student of the School Board attending Lord Nelson Secondary School. Psychological tests place Jamie Hlusko in the category of “profoundly gifted” with an I.Q. in the range of 160 to 180.

7For grades 5 to 8 in the School Board’s elementary system, Jamie Hlusko’s parents chose a setting of a “self contained gifted class” where all members in the class have been identified as gifted rather than him remaining in the regular classroom “with resource support”.

8At present, the School Board does not have a “self contained gifted class” in its secondary schools.

9On June 16, 2003, the Special Education Advisory Committee (SEAC) of the School Board unanimously approved the Special Education Plan for 2003-2004 (the Plan) and recommended it for approval to the Board of Trustees.

10On June 18, 2003, the Board of Trustees “reached consensus” on the Plan for the 2003-2004.

11The Plan was forwarded to the Ministry of Education for comments which Ministry provided corrections and qualifications but did not ask the School Board to consider or re-consider the issue of special education program placements at the secondary level.

12At its May 29, 2003 meeting, the School Board’s Identification, Placement and Review Committee (IPRC) placed Jamie Hlusko in a “regular class with resource support”. His mother, Dr. Jennifer Kerr, filed a Notice of Appeal, dated June 23, 2003. The IPRC’s placement decision of May 29, 2003 was appealed to the School Board’s Special Education Appeal Board (SEAB). The SEAB is a tripartite board with a member appointed by the School Board, a member appointed by Ms. Jennifer Hlusko and an agreed upon Chair person. On November 27, 2003, SEAB released its “Report of Decision” and unanimously held that SEAB “agrees with the recommendation of the IPRC regarding placement of Jamie Hlusko”.

13The parents of Jamie Hlusko, under s. 57(3) and (4) of the Education Act appealed the decision of the SEAB to the Respondent Tribunal, established by the Lieutenant Governor in Council in accord with s. 57(1) of the Education Act. The Tribunal holds hearings in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22. The parents are asking that the Tribunal make an order that the School Board be required to establish a “regional secondary self-contained program placement for gifted students”, as set out as part of Exhibit #2 before the Tribunal:

-that the Tribunal order the Halton District School Board to implement [create] in Halton a regional secondary gifted placement in a special education class – for all core academic courses (e.g. englishes, maths, sciences, histories and geographies) from Grade 9 through to graduation, starting in September 2004 for Grade 10 and Grade 9 gifted students

-and that this secondary gifted class placement must contain other identified gifted students such that the majority of the class is comprised of identified gifted students with the remainder of students in the class being high achievers in that specific core academic subject

-and that the teachers in this placement be qualified “subject specialists” who are required to obtain Ministry approved qualifications for teaching gifted students within 12 months of starting to teach in this placement

-and that there be no cost to parents for this secondary gifted program placement or transportation

14On January 26, 2004, the School Board, by way of teleconference, brought a preliminary motion to the Tribunal and argued:

(1) The Tribunal did not have jurisdiction to make the order(s) requested by Jamie Hlusko’s parents, namely “an order for placement that did not exist within the School Board’s Special Education Plan”

(2) Ms. Kerr, a Trustee of the School Board, a parent of Jamie Hlusko and the appellant before the Tribunal, was in a conflict of interest

The Tribunal turned aside the arguments of the School Board on January 26, 2004 and released its written reasons for its decision on February 12, 2004. (Motion Record, Tab 7).

15On February 26, 2004, counsel for the School Board advised the Tribunal:

By previous e-mails, we have advised the Tribunal that we have instructions from the Halton District School Board to proceed with an Application for Judicial Review. We are presently finalizing the Notice of Application for Judicial Review and hope to have either a draft or the Notice as issued when the Hearing is to commence on Monday, March 1st.

16On March 1, 2004, the School Board launched their judicial review.

17The Tribunal decided to proceed and did proceed with the Appellant’s (Dr. Kerr’s) portion of the appeal on March 1 and 2, 2004.

18On March 1, 2004, counsel for the School Board renewed his submissions to the Tribunal asking it to adjourn pending the outcome of the judicial review. The Tribunal refused and scheduled further hearings for March 22, 24, 25 and April 5, 2004.

19On March 10, 2004, this motion to prohibit/stay was launched by the School Board.

III. The “Climate” at the School Board

20The Record and the submissions of counsel advise me that the issue of Jamie Hlusko’s placement has divided the School Board’s Trustees. There are eleven (11) Trustees. Six (6) are contrary to Ms. Kerr’s position and she, together with four (4) others, form the group of five (5) who support Trustee Kerr’s position before the Tribunal.

21As a result of this dichotomy, it is said that there is no assurance that what takes place in camera involving solicitor-client privilege remains in the room. It becomes known to Ms. Kerr even though she absents herself from the in camera meetings.

22If the appeal before the Tribunal resumes, counsel for the School Board intends to call some Trustees from “the six” and many employees of the School Board.

23Counsel advise me that the evidence of each employee of the School Board that he proposes to call before the Tribunal is contrary in view to the position already given by Ms. Kerr to the Tribunal.

24Counsel for the School Board points to the affidavit of Dr. Dusty Papke, the Supervisory Officer and the Director of Education of the School Board, who deposed:

28. I am very concerned about the fact that Trustee Jennifer Kerr is in a conflict of interest with the Halton District School Board by pursuing an adversarial process against the Board. There are a number of reasons for this concern. The position being pursued by Trustee Kerr is causing a split among the eleven Trustees of the Halton District School Board. This will be referred to below. In addition, Trustee Kerr has been very critical of the Superintendent responsible for Special Education, Ms. Brenda Kearney. The adversarial nature of the proceedings has raised considerable concerns among the educators and administrators who will be required to testify against Trustee Kerr if the Hearing proceeds. The educators and administrators are very concerned as to what steps Trustee Kerr might take against them in the future.

29. From a historical perspective, Trustee Kerr campaigned against the current Policy Governance Model of the Halton District School Board and also focussed on Special Education. Attached hereto and marked as Exhibit “9” is a copy of an advertisement by Trustee Kerr who ran as Jennifer Hlusko in the election.

30. Attached hereto and marked as Exhibit “10” to this my Affidavit is a copy of a similar document issued by Jennifer Hlusko in a different manner.

31. Attached hereto and marked as Exhibit “11” is a document entitled “Halton District School Board Excludes Parents and Trustees” which I understand was issued by Jennifer Hlusko. I am particularly concerned about the criticism and blame focussed on Superintendent Brenda Kearney.

IV. Test on a motion to stay pursuant to s. 4 of the Judicial Review Procedure Act

25On an application for a stay under s. 4 of the Judicial Review Procedure Act, an applicant must show:

(a) there is a serious question to be tried; and

(b) that the applicant will suffer irreparable harm if the order is not granted; and

(c) the balance of convenience favours the granting of the order; that is, the potential harm to the applicant if the order is not granted outweighs the potential harm to the respondent and to the public interest should the interim order be granted.

Ontario New Home Warranty Program v. Ontario (Commercial Registration Appeal Tribunal), [1997] O.J. No. 3454, (Ont. Ct. Gen. Div.) par.2; Booth v. Huxter, [1993] O.J. No. 2810, (Ont. Gen. Div.).

A. Serious Questions to be Decided

26In my view, there is a serious question as to whether there is a conflict of interest on the part of Ms. Kerr. Can a Trustee be “in litigation” with the very school board of which she is a Trustee?

27In Hearst (Town) v. District School Board Ontario North East, [2000] O.J. No. 3419, Hennessy J. stated:

¶39 ….Should an individual trustee be unable to persuade her colleagues to accept her view and wish to ask the Courts to favour her position over the majority of her colleagues, she should resign. There would be no reason to resign if she did not wish to participate in the litigation. But she cannot exercise her rights as a trustee, including her right to participate in decisions regarding the conduct of the litigation while at the same time working hand in hand with the applicant. I find that the trustees are clients in their capacity as trustees of the Respondent Board, and as such, counsel should not communicate with them except through Board counsel.

28Does the Tribunal have the jurisdiction to make an order for placement that is not in the School Board’s current Special Education plan?

29In Re Dolmage et al. and Muskoka Board of Education et al. (1985), 49 O.R. (2d) 546 (Div. Ct.) per Eberle J. (for the Court): “To recommend the placement of a child in a non-existent programme seems to me absurd”.

30In my view, on this record, each is a serious question to be determined.

B. Irreparable Harm

31In my view, to continue this appeal when the Tribunal’s jurisdiction is seriously questioned, may well be an exercise in futility with the only result being a further poisoning of the atmosphere at the School Board between “them” and “us”. At best, the whole scene would be unseemly and the day to day functioning of the School Board, including Trustees, may well become paralyzed.

C. Balance of Convenience

32Dr. Papke deposed:

48. iii) …Nevertheless, the educators and administrators of the Board have reviewed the situation from a number of perspectives, and are satisfied that the educational needs of Jamie Hlusko can be met in the current placement with the programs and services provided by the Board. I would also note that I was present when Dr. Blackstock gave evidence on behalf of the Appellants. Dr. Blackstock is the Psychologist presently providing counselling to Jamie Hlusko. Dr. Blackstock indicated that classes with a mix of gifted and non-gifted students are good for both the gifted and non-gifted students. This is exactly what the current placement provides for Jamie Hlusko.

33In view of the time of year and the evidence of Dr. Blackstock, I see no downside to Jamie Hlusko’s best interests in granting the stay requested. However, if this appeal goes forward at this time before the Tribunal, I can visualize irretrievable damage that will fester at this School Board for months and perhaps even years to come.

34In all of this, we must remember the words of the Supreme Court of Canada in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, where Sopinka J. said:

¶ 77 …For this reason, the decision-making body must further ensure that its determination of the appropriate accommodation for an exceptional child be from a subjective, child-centred perspective, one which attempts to make equality meaningful from the child’s point of view as opposed to that of the adults in his or her life. As a means of achieving this aim, it must also determine that the form of accommodation chosen is in the child’s best interests. A decision-making body must determine whether the integrated setting can be adapted to meet the special needs of an exceptional child.

V. Result

35Pursuant to s. 4 of the Judicial Review Procedure Act (supra), an interim order will issue prohibiting the Special Education Tribunal from proceeding with the appeal brought by Jennifer Kerr and Greg Hlusko, parents of Jamie Hlusko, pursuant to s. 57(3) and (4) of the Education Act, pending the outcome of the application for judicial review launched by the School Board with regard to those proceedings.

VI. Costs

36The costs of this application are left to the discretion of the panel of the Divisional Court hearing the application for judicial review.

O’Driscoll J.