Fleischmann v. Toronto District School Board, 2004 CanLII 29548 (ON SCDC)

COURT FILE NO.: 721/03

DATE: 20040119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

CARLY FLEISCHMANN by her litigation guardians TAMMY STARR and ARTHUR FLEISCHMANN

Applicant

• and -

TORONTO DISTRICT SCHOOL BOARD and DAVID MOORE

Respondents

Mary Eberts, Jonathan Strug for the Applicants

J. Paul R. Howard, for the Respondents

HEARD: January 7, 2004

MacFarland J.

1Carly Fleischmann was born January 26, 1995, and in February of 1997 she was diagnosed with having autism at the severe end of the spectrum. She is developmentally delayed and has a severe motor speech disorder, which significantly reduces her ability to produce speech sounds and/or to sequence them into meaningful or intelligible units. It is the opinion of her speech language pathologist that she will always require an augmentative communication system in order to communicate her needs and wants.

2Carly currently attends Summit Heights Public School in the Junior Developmental Handicapped Class. Her Individual Education Plan (hereafter IEP) for the 2001 – 2002 school year in the Profile of Needs section notes:

Carly requires constant, intensive, individualized support, supervision and direction with a 1:1 special needs assistant in order to:

• maintain her physical safety (behaviour)

• develop her compliance and self-regulation skills

• develop her communication skills (receptive and expressive)

• develop her basic self help, life and social skills

• develop her attention span/focus for any non/pre academic skills

3In that same document in the section Strategies and Resources it is noted:

• To achieve optimum learning Carly must be provided with constant individualized supervision and support in all setting and at all times, therefore all strategies will be implemented in a direct one-to-one teaching situation whenever possible.

These observations are repeated throughout all sections of Carly’s IEP.

4Carly’s mother, Tammy Starr, and father, Arthur Fleischmann, have filed affidavits in which they attest to the remarkable progress Carly has made behaviourally since September of 1999 when they began providing Applied Behavioral Analysis (ABA) to Carly. As Mr. Fleischmann stated in his affidavit, they first learned of ABA when they watched a David Suzuki television program about autistic children. On that program, ABA was featured as the only scientifically validated intervention for children with autism.

5The Toronto District School Board during Carly’s attendance at their schools appears to have run hot and cold in respect of the use of ABA in the classroom.

6When Carly attended John Ross Robertson Public School for junior kindergarten in 2000 – 2001, ABA was not permitted in class. From her father’s perspective, Carly did not have a positive experience that school year.

7The next year, Carly switched to Summit Heights Public School where she continues today.

8In his affidavit, Mr. Fleischmann deposes, “the brother of one of our therapists, Howard Dalal, was hired as Carly’s support person (SNA).” Fleischmann/Starr paid for Howard to be trained in ABA so that he would be versed in ABA principles to use with Carly in the classroom. (I should add, at this time from September 1999 Carly was receiving an ABA program at home after school and on weekends).

9For the 2001 school year, Carly’s teacher, Ms. Leibowitz, allowed Howard to use ABA in the classroom. In paragraph 9 of his affidavit, Mr. Fleischmann attests to the positive progress Carly made as the result.

10Mr. Dalal was returning to school himself during the day and was unable to be “Carly’s support person at school” for the 2002 – 2003 school year.

11Consequently in August 2002, Yifat Barmapov was identified as an appropriate person to take over as Carly’s support person at school. Yifat’s interview took place at the Fleischmann/Starr home at which time Carly’s mother and father were present in addition to Mr. Moore, the school principal, and Ms. Leibowitz, Carly’s teacher. Yifat was hired as a Special Needs Assistant by the T.D.S.B. The Fleischmann/Starr family paid for Yifat to be trained in ABA as they had done for Howard Dalal.

12During the 2002 – 2003 school year, Ms. Leibowitz, for a period of time, did not permit Yifat to use ABA in the classroom. From her parents’ perspective, Carly regressed as the result. Carly’s mother and father requested that Carly be transferred to a different class at Summit Heights taught by Ms. Paul. Their request was accommodated and to the present, Carly remains in Ms. Paul’s class where she is assisted by Yifat using ABA.

13The Toronto District School Board on this motion takes the position that it does not accept that ABA is the only scientifically validated intervention for children with autism.

14It has, however, on this record, permitted the use of ABA in the classroom setting since Carly began to attend Summit Heights Public School in September 2001. When Ms. Leibowitz had a change of heart about its use in her classroom during the 2002 – 2003 school year, it acceded to Carly’s parents’ request to have her transferred to the classroom of a teacher who permitted its use and permitted the SNA assigned to Carly’s classroom (to adopt the Board’s position about that issue for the moment) to transfer with Carly to the new classroom with Ms. Paul where she remains.

15Notwithstanding, the position the T.D.S.B. takes on this motion it has noted in Carly’s IEP under one of the columns headed “How Student Will Learn (Strategies & Resources)” the following:

• Implement modified A.B.A. methods for teaching specific skills.

16At the end of the 2002 – 2003 school year, Yifat was told her position was terminated.

17It is the School Board’s position that Yifat had been hired as a per diem employee and became a temporary employee of the T.D.S.B. after 30 days of employment under the terms of the collective agreement in effect. The position which Yifat held is a Special Needs Assistant (SNA). The employment of all temporary employees is terminated at the end of the school year.

18When the position becomes a permanent one, it is posted. Initially, permanent full-time surplus employees can apply for the position and if no one suitable is found, permanent part-time surplus employees may apply. In the event, still no suitable candidate is found then and only then may temporary employees such as Ms. Barmapov may apply for the position.

19Ms. Barmapov did not understand that her position ended at the end of the 2003 school year until she was told it did in late June 2003 by Ms. Paul. She expected to return to Summit Heights Public School as Carly’s SNA in the fall of 2003 for the 2003 – 2004 school year.

20Carly’s parents were, understandably, upset that Yifat was being terminated. Ms. Starr in particular made efforts to communicate with Mr. Moore over the summer in an effort to ensure a suitable person, with appropriate training would be in place come fall. The electronic correspondence exchanged between the two is annexed to Ms. Starr’s affidavit—and it is telling. It seems Mr. Moore’s greatest concern was that Carly’s parents were interfering with his right to hire staff.

21Mr. Moore points out that the hiring of Special Needs Assistants is for him to decide as is the decision where they are to be placed within the school (i.e.) which classrooms and which students are to be assisted by them.

22Yet historically, both Howard Dalal and Yifat Barmapov were identified by the Fleischmann/Starr family, interviewed by the family, Mr. Moore and Ms. Leibowitz, hired by Mr. Moore (on behalf of the T.D.S.B.), trained at the expense of the Fleischmann/Starr family, placed in Carly’s classroom and in the case of Yifat followed Carly to a different classroom when Carly transferred.

23It is apparent to me on this record that the SNA in Carly’s classroom to date has spent most of his or her time assisting Carly who, is it is to be noted, the T.D.S.B. identified as a child needing one on one assistance. Ms. Barmapov has deposed that since winter 2003, when Carly transferred to Ms. Paul’s class, she (Ms. Barmapov) has worked exclusively with Carly.

24In any event, the posting process got delayed and Ms. Barmapov was returned to Summit Heights for September and October of 2003. Ms. Barmapov has deposed that she was not informed by anyone through September and October that her position was going to be posted in the fall of 2003.

25On November 5, 2003, Mr. Moore told Ms. Barmapov that her last day on the job would be November 7, 2003. He told her a new SNA would be in the class with Carly on Monday, November 10, 2003 and there would be no overlap.

26When Ms. Barmapov informed Carly’s parents they were understandably upset.

27There is no affidavit before the Court from David Moore. I am told he has taken a leave of absence. I am not told that he is out of the country, ill or otherwise not available to provide affidavit evidence.

28Mr. Ellecker’s affidavit is very general and he has no direct knowledge of the events which give rise to this application save after the fact.

29It is clear that while the Fleischmann/Starr family were disappointed that Ms. Barmapov would not be Carly’s SNA any longer, their main concern was for there to be in place a transition plan for the orderly changeover from Ms. Barmapov and that the person chosen be experienced in ABA.

30It is rather obvious from the record that when Mr. Moore decided to replace Ms. Barmapov in early November 2003, he had done nothing to address the family’s concerns. There was no transition plan and no effort had been made to ensure that the new person who would replace Ms. Barmapov had ABA training. Indeed, it is apparent that the woman who would replace Ms. Barmapov initially was only to be there on a temporary basis in any event and she too would soon be replaced.

31The parents were understandably upset and were given little assurance by anyone at T.D.S.B. that their concerns would be addressed.

32For example, Karen Forbes of T.D.S.B. emailed Arthur Fleischmann at 4:06 p.m. on Wednesday, November 12, 2003, as follows:

…I am working through the issue of a transition plan. When I get that in place I can better tell whether or not we can extend Yifat’s stay beyond Friday.

I will be out of town for the next two days but you can send me an email. However, I won’t be checking it regularly. I will be working on the transition plan, however, on the next two days and I can give you answers to the questions around the transition plan by Friday.

33Not much comfort for the family. The T.D.S.B. person in charge just two days before Carly’s SNA was to be terminated had as yet no transition plan in place and would not confirm in such circumstances that Ms. Barmapov could continue until such a plan was in place.

34All the while the school was proceeding to interview candidates for the SNA position. No one suitable was found among surplus permanent employees. It became open to Ms. Barmapov and others to apply for the position.

35Without any absolute assurance from the Board that it would minimally make an effort for a smooth transition from Ms. Barmapov to the person who would replace her on a permanent basis in the event she was not the successful applicant for the job and some assurance that such person would have ABA training, the family on behalf of Carly moved for judicial review of the decision to remove Yifat Barmapov as Carly’s educational assistant and transferring her to an inappropriately qualified educational assistant.

36The statutory scheme upon which the applicants rely to invoke the jurisdiction fo this Court begins with section 8(3) of the Education Act, R.S.O. 1990, Chapter E-2 which provides:

8(3) The Minister shall ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the Regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario, and shall provide for the parents or guardians to appeal the appropriateness of the special education placement…

37The Minister of Education is mandated to ensure that all exceptional children have appropriate special education programs and services without payment of fees by parents. The duty to provide those programs and services is that of the Board of Education. Section 170 (1) of the Act provides:

170.(1) Every board shall,

7. provide or enter into an agreement with another board to provide in accordance with the regulations special education programs and special services for its exceptional pupil;

38A committee established by the School Board, Identification Placement Review Committee, is authorized under the regulations (see sections 14 through 20 of Ontario Regulation 181/98) to identify a student as exceptional and then decide whether that child will be placed in a regular or special education class.

39Once this committee decides exceptionality and placement, it then falls to the principal of the school where the child attends to develop the individual education plan (IEP) for that child. The regulations provide that where a child is under 16 years of age, the plan is to be developed in consultation with the parents.

40In the main application for review, the applicants rely on this statutory scheme to inform the Court’s decision about what should happen when decisions are made which concern Carly.

41The order sought on this interim application is in the nature of a mandatory order requiring the Board to maintain Yifat Barmapov in her current position as Special Needs Assistant working primarily, if not exclusively, with Carly Fleischmann until the hearing of the main application for judicial review.

42There can no doubt in my view that the issues raised on this judicial review application are serious ones.

43The T.D.S.B. takes the position that this is simply an effort by parents to usurp the duties of the principal in respect of who will be hired to staff the school. It is argued that the parents are trying to dictate to the Board who will be hired—and those decisions are for the Board alone to make in accordance with the collective agreement in place.

44The applicants say that the principal’s duties to prepare an IEP for Carly and to provide her with educational programs and services mandated by the Education Act and the regulations require, in the particular circumstances of this case, that in carrying out his duties, he consult with the parents. Further, that he not replace her SNA with another without a proper transition plan in place and a person experienced in ABA as well.

45On the specific facts of this case, I need not consider the public interest. The interim relief sought here does not require an exemption from or suspension of legislation. It requires the T.D.S.B. to maintain one employee on staff until the return of the application. That the Board has already offered the job to another cannot be the determining factor here. The Board offered that job to another when this application was already before the Court. It should have considered this factor before it made an offer.

46This case is entirely different on its facts from the funding cases.

47It is argued, however, that the first branch of the test for this interim relief is more onerous than merely that there is a serious issue to be tried as required by R.J.R. MacDonald Inc. v. Canada 1994 117 (SCC), [1994] 1 S.C.R. 311 at 334 and cases following.

48Because the nature of order sought is mandatory, the onus is on the moving parties to persuade the Court that their case has a greater likelihood of success or a strong prima facie case. See Parker v. Canadian Tire Corporation [1998] O.J. No. 1720. I will accept for the purposes of this motion that the higher onus applies but I would point out that when the application was brought—the SNA position had not yet been offered to anyone else. The effect of the order I am now asked to make would, if made then, have been merely maintaining the status quo.

49However, in my view, the applicants have made out a strong prima facie case.

50There can simply be no dispute here but that a change of the person who works essentially one on one with Carly Fleischmann on a day-to-day basis will be difficult for her. Both of her parents have attested to how difficult change is for Carly.

51Tellingly, in my view, there are no affidavits from David Moore, the principal of Carly’s school or her teachers that would suggest the contrary.

52Common sense alone, in my view, would suggest that any change for this child’s routine should be carefully planned. The Act and Regulations require the principal to consult with Carly’s parents in developing her IEP—the document that sets out the services and programs to be provided to Carly. That document notes the one on one assistance required and the fact of ABA methods to be employed.

53I ask rhetorically, how can the T.D.S.B. now suggest that decisions in respect of the staff to be assigned to this child are for it alone to make. While the Board’s duty to hire staff and make staffing decisions may be tangentially affected by this application, they are not paramount. The specific decisions made here may well affect Carly’s rights under sections 7 and 15 of the Charter.

54For the Board to persist in its position that it alone (through the principal) has the right to make this decision (to replace Yifat Barmapov) without a transition plan in place and without ensuring that the replacement person is appropriately trained, seems to me to fly in face of the duties set out in the legislation.

55The applicants have persuaded me that theirs is a strong prima facie case.

56Next, I must consider the question of irreparable harm. The evidence before this Court is uncontroverted that Carly does not handle change well and that she regresses in the school setting when ABA is not used in that setting. In such circumstances, I am satisfied that the harm that would occur in the event Ms. Barmapov is replaced by another without appropriate ABA training is irreparable. The setback that Carly would suffer is incapable of being quantified in dollar amounts.

57Lastly, there is the balance of convenience to consider. The School Board will have to maintain an extra SNA at Summit Heights until the decision is rendered. This will involve payment of two salaries. As noted earlier, the Board made the offer of employment to another while this judicial review application was pending. It could have held off but did not. When I compare that fact to the difficulties Carly will face if the order is not granted, there cannot, in my view, be any issue but that the balance of convenience here clearly favours the applicants.

58In result, the application is granted. The T.D.S.B. is required to maintain Yifat Barmapov as the Special Needs Assistant for Carly Fleischmann until the hearing of the within judicial review application.

59Counsel requested an opportunity to address costs once my decision is released.

60If counsel will let my secretary, Sonia Lim, at (416) 327-5139, know how much time they will require, I will provide some alternative dates for that purpose.

MacFarland J.