COURT FILE NO.: 211/04
DATE: 20050526
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: JARED CLOUGH (BY HIS LITIGATION GUARDIAN SUSAN CLOUGH)
Applicant
- and -
SIMCOE COUNTY DISTRICT SCHOOL BOARD AND ONTARIO SPECIAL
EDUCATION (ENGLISH) TRIBUNAL
Respondents
BEFORE: Carnwath, Matlow & E. Macdonald JJ.
COUNSEL: Bryan Finlay, Q.C., E.M. Venhola & Marie-Andrée Vermette, for the Applicant
Christopher G. Riggs, Q.C. & Brenda J. Bowlby, for the Respondents
HEARD AT TORONTO: April 28, 2005
E N D O R S E M E N T
THE COURT:
[1] Susan Clough, on behalf of her son Jared, seeks judicial review of the decision of the Ontario Special Education (English) Tribunal.
[2] Jared is a twelve-year-old boy, living with autism. Jared is non-verbal and communicates gesturally through pictures. He has severe deficits in communication, life skills, social skills and behaviour. Ms. Clough states that "he lives with autism on the more profound end of the spectrum".
[3] The Simcoe County District School Board ("School Board") has placed Jared in the Primary Autism Pilot Project at Algonquin Ridge Elementary School, following a decision of the Identification, Placement and Review Committee ("IPRC") of the School Board dated June 18, 2002.
[4] Ms. Clough appealed the IPRC decision to the Special Education Appeal Board. In its decision of September, 2002, that Appeal Board confirmed the IPRC placement.
[5] Ms. Clough then requested a Special Education Tribunal hearing. The Tribunal heard the matter on June 10, 11, 12, 16, and 17, 2003. The Tribunal affirmed the determination of the IPRC placement in the Primary Autism Pilot Project. Ms. Clough now seeks judicial review of that decision.
[6] The parties agree the standard of review is reasonableness.
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. (see Southam, at para. 79).
Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at 270
[7] We are directed to subject the decision of the Tribunal to "a somewhat probing examination". We are not to re-try the matter, nor to substitute our opinion for that of the Tribunal. Only if the decision is not tenable can we interfere.
[8] Ms. Clough wanted the School Board to provide Jared with an Intensive Behavioural Intervention Program ("IBI"). She described the components of the Program she wanted for Jared:
- Jared seated in a specially-constructed chair with a seatbelt, like a high chair
- A program to be delivered in a room separate and apart from others in a place without distractions, separate from all other students
- The program to be 40 hours per week delivered by an IBI therapist and supervised by an IBI-trained psychologist
[9] Affidavit evidence filed by Dr. Hunt (Jared's paediatrician) on behalf of Ms. Clough described IBI as a necessary feature of Jared's medical treatment. Affidavit evidence filed by Dr. Konstantareas on behalf of Ms. Clough described the IBI treatment as "medically necessary".
[10] The Tribunal noted the Education Act did not recognize therapists or psychologists as qualified to deliver instruction/education in a classroom in Ontario. Only members of the Ontario College of Teachers are qualified to do so.
[11] The Tribunal found what Ms. Clough wanted for her child was therapy, not education. Ms. Clough submits this finding was unreasonable. We disagree. Given her own description of what she wanted for Jared and the affidavit evidence filed on her behalf, it was not unreasonable for the Tribunal to conclude it was medical treatment that Ms. Clough asked for.
[12] Ms. Clough submits the Tribunal was unreasonable in failing to find that an IBI placement would be superior to the Autism Pilot Project ("APP") at Algonquin Ridge. As the Tribunal properly noted, this was not the issue before the Tribunal. The issue was whether the placement in the APP was appropriate to meet Jared's particular needs.
[13] The Tribunal analyzed the APP placement at length. It noted the Program had six students served by one full-time teacher and seven E.A.s. Two E.A.s were assigned to Jared. Indeed, no other student in the School Board received as much support as did Jared. The Tribunal heard evidence there was no need to move Jared to IBI. The Tribunal was satisfied the APP contained a number of elements based on behavioural principles, a fact which Ms. Clough herself recognized.
[14] Based on the evidence the Tribunal chose to accept, we find it was not unreasonable for the Tribunal to conclude the APP placement was appropriate for Jared.
[15] Ms. Clough submits the issue of how Jared's "aggressive" behaviour should be managed was not before the Board. We disagree. Any delivery of educational benefits to Jared clearly requires techniques and strategies to ensure such behaviour does not frustrate that delivery.
[16] Ms. Clough submits it was unreasonable for the Tribunal not to apply the Charter and the Human Rights Code. We reject this submission. While there may not be an articulated analysis of Charter and Code principles in the Tribunal's decision, it is clear the Tribunal recognized Jared as a special person with special needs. The Tribunal focussed on how best to insure that Jared would receive the benefits an education could provide.
[17] During the course of their submissions, both counsel for Ms. Clough engaged in a detailed analysis of the reasons for judgment of Kiteley J. of the Superior Court of Justice in Wynberg v. Ontario, [2005] O.J. No. 1228 (March 30, 2005) and made submissions to us regarding the application and use of that decision to the determination of the issues before us in this case. In essence, they submitted that, although we are not bound to follow Wynberg, we should nevertheless consider it to be of persuasive authority and deserving of great weight in our deliberations. Wynberg, like this case, was one in which parents of autistic children sought the intervention of a court to challenge what they perceived were unjustifiable deficiencies in the provision by government of IBI to their children and to require government to remedy those deficiencies by extending its provision. She also made an award of damages in favour of the parents.
[18] We agree that Kiteley J.'s reasons for judgment contain an extensive, detailed and thoughtful analysis of the plight of autistic children and their families in Ontario and the application of the Charter to the legal obligation of government to provide IBI to the children. It is a useful source of information about the needs of autistic children and the availability of treatment for them. However, we respectfully conclude that her judgment does not assist us.
[19] As stated above, we have a limited jurisdiction to exercise with respect to this application and we are confined to a consideration of only the record of the proceedings before the Ontario Special Education Tribunal in making our determination whether or not we should interfere with the Tribunal's decision.
[20] In contrast, the proceeding that took place in Wynberg was a full trial in which considerable evidence was called. Kiteley J. made certain findings of fact and interpreted and applied the law as she was required to do. The parties in Wynberg were totally different from the parties in this case. As well, the evidence at the trial before her, and the issues that she was required to address, were much different than those in this application before us. Accordingly, it would be both unreasonable and unfair to allow the outcome of that case to have any impact on this one.
[21] We cannot leave this matter without noting the remarkable efforts made by both sides in trying to help Jared. Ms. Clough's devotion to the well-being of her son exhibits the highest and best attributes of parenting. The School Board's efforts to meet Jared's needs are equally admirable. As sometimes happens, the gap between them could not be bridged. There is no dishonour where two such valiant efforts have been made.
[22] The application is dismissed. Neither the School Board nor the Tribunal seeks costs. No order as to costs.
CARNWATH J.
MATLOW J.
E. MACDONALD J.
DATE: 20050526