COURT FILE NO.: 10/06

DATE: 20060619

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, EPSTEIN & SWINTON JJ.

B E T W E E N:

NASIM ISMAIL

Applicant

• and -

THE TORONTO DISTRICT SCHOOL BOARD

Respondent

B. Joseph Villeneuve, for the Applicant

Christopher G. Riggs, Q.C. & Casey M. Picard, for the Respondent

Jennifer Scott, for the Ontario Special Education (English) Tribunal, Intervenor

HEARD at Toronto: April 24, 2006

CARNWATH J.:

INTRODUCTION

1The Toronto District School Board has identified Nafiz Ismail as an “exceptional student”. The Board has placed him in a special education classroom, a placement to which the boy’s mother objects. The Ontario Special Education (English) Tribunal upheld the Board’s placement of Nafiz. Nazim Ismail, the boy’s mother, seeks judicial review of that decision.

2The application raises two questions:

1. What is the appropriate standard of review of the Board’s decision?

2. Applying that standard of review, should the Board’s decision be maintained or set aside?

LEGISLATIVE SCHEME

3Section 8(3) of the Education Act, R.S.O. 1990, c. E. 2 sets out the Minister of Education’s responsibility for the provision of special education in Ontario:

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, and for these purposes the Minister shall,

(a) require school boards to implement procedures for early and ongoing identification of the learning abilities and needs of pupils, and shall prescribe standards in accordance with which such procedures be implemented; and

(b) in respect of special education programs and services, define exceptionalities of pupils, and prescribe classes, groups or categories of exceptional pupils, and require boards to employ such definitions or use such prescriptions as established under this clause.

4The Education Act defines “exceptional pupil” as follows:

1.(1) "exceptional pupil" means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee . . . of the board. . . .

5Regulation 181/98 (Identification and Placement of Exceptional Pupils), R.R.O. 1990, under the Education Act, provides at section 14:

14.(1) The principal of the school at which a pupil is enrolled,

(a) may on written notice to a parent of the pupil; and

(b) shall at the written request of a parent of the pupil, refer the pupil to a committee established by the board, for a decision as to whether the pupil should be identified as an exceptional pupil and, if so, what the placement of the pupil should be.

6Section 17 of Regulation 181/98 provides:

17. (1) When making a placement decision on a referral under section 14, the committee shall, before considering the option of placement in a special education class, consider whether placement in a regular class, with appropriate special education services,

(a) would meet the pupil’s needs; and

(b) is consistent with parental preferences.

O. Reg. 181/98, s. 17(1).

(2) If, after considering all of the information obtained by it or submitted to it under section 15 that it considers relevant, the committee is satisfied that placement in a regular class would meet the pupil’s needs and is consistent with parental preferences, the committee shall decide in favour of placement in a regular class. O. Reg. 181/98, s. 17 (2). (emphasis added.)

7Regulation 181/98 requires that every board of education set up an Identification Placement Review Committee (IPRC) and establishes the process by which “exceptional pupils” are identified and placed. The Education Act permits an appeal of the IPRC decision to the Special Education Tribunal.

8Section 57(5) of the Education Act further provides:

57(5) The decision of the Special Education Tribunal is final and binding on the parties to the decision.

9The Ministry of Education has developed sub-categories for three of the five exceptionalities listed in the definition of “exceptional pupil” under subsection 1(1) of the Education Act. For example, the exceptionality of “intellectual” includes the following sub-categories:

Mild Intellectual Disability

A learning disorder characterized by:

a) an ability to profit educationally within a regular class with the aid of considerable curriculum modification and supportive services;

b) an ability to profit educationally within a regular class because of slow intellectual development; and,

c) a potential for academic learning, independent social adjustment, and economic self-support.

Developmental Disability

a) an ability to profit from a special education program for students with mild intellectual disabilities because of slow intellectual development;

b) an ability to profit from a special education program that is designed to accommodate slow intellectual development; and,

c) a limited potential for academic learning, independent social adjustment, and economic self-support.

Special Education: A Guide for Educators, 2001, p. A 20

10There is no subcategory for the “Multiple” exceptionality, which is defined as follows:

Multiple Exceptionalities

A combination of learning or other disorders, impairments, or physical disabilities that is of such a nature as to require, for educational achievement, the services of one or more teachers holding qualifications in special education and the provision of support services appropriate for such disorders, impairments or disabilities.

Special Education: A Guide for Educators, 2001, p. A 20

11Regulation 181/98 requires school boards to use the “exceptionality” sub-categories when identifying students in the IPRC process. There is no legislative requirement of the Tribunal to use the sub-categories. The Tribunal follows the definition of “exceptional pupil” in subsection 1(1) of the Education Act when identifying students in the appeal process and applies the sub-categories where there is sufficient evidence to do so.

12Once an exceptional student is identified, the IPRC places the student in a special education program designed to meet the student’s needs. Examples of placements include: regular class, regular class with in-class support, regular class with resource withdrawal and self-contained special education class.

13When making a decision on placement, the IPRC must, before considering a placement in a special education class, consider whether placement in a regular class, with special education services, would meet the pupil’s needs and be consistent with the parents’ preferences.

14If parents are dissatisfied with the identification and/or placement of their child, they can appeal to a Special Education Appeal Board (“SEAB”), set up by their school board under Regulation 181/98. The school board can accept or reject the recommendations of the SEAB, or it can come to a different decision.

15If parents have exhausted all of their appeal rights and remain dissatisfied with the identification and/or placement of their child, they can appeal to the Special Education Tribunal (“the Tribunal”). The appeal before the Tribunal is a hearing de novo.

Education Act, s. 57(3)

Pokonzie v. Sudbury District Roman Catholic Separate School Board, [1997] O.J. No. 4698, at para. 20 (Div. Ct.)

16The Tribunal’s jurisdiction is set out in ss. 57(4). The Tribunal can dismiss the appeal or grant the appeal and make any order it considers necessary with respect to the identification and/or placement of the student.

17The Tribunal is a specialized body that adjudicates disputes between parents and school boards with respect to the identification and placement of exceptional students. The central focus of the Tribunal, when exercising its mandate, is the best interests of the student.

BACKGROUND

18At the time of the hearing in 2005, Nafiz was fourteen years old. He has Down’s Syndrome. He was first identified as an exceptional pupil in 1997 while he was in Senior Kindergarten at Fenside Public School.

19At the request of his mother, Nafiz has been placed in a regular class, with some support, throughout his education.

20On April 18, May 3 and May 6, 1997, a psychological evaluation of Nafiz was conducted to evaluate his cognitive functioning to assist in program planning. The results showed that Nafiz had major delays in language development and that his non-verbal intelligence was very much below age expectancy. Nafiz’s functioning was rated as falling below the first percentile, which suggested a developmental delay in the mild range.

21On January 18, 2002, when Nafiz was in Grade 4, a supplementary psychological evaluation was conducted. The Scales of Independent Behaviour-Revised was administered. Nafiz’s scores were rated below the first percentile as compared to his peers. His broad independence was rated at the 0.1 percentile. Ellen Smith, an educational psychologist, concluded that these results implied the student could not cope with the challenges of daily life in an age-appropriate manner.

22In the spring of 2004, Nafiz transferred to Ionview (“Ionview”) from Donview Middle School. Both schools are within the Board’s jurisdiction.

23On May 11, 2004, an annual IPRC meeting was convened for Nafiz, pursuant to the requirements of the Education Act and Regulations. The IPRC maintained the identification of “development disability” from Nafiz’s previous IPRC, which identification the applicant had agreed to at the previous IPRC.

24After reviewing Nafiz’s Ontario Student Record and in discussing Nafiz’s educational strengths and needs with educators involved with him, the IPRC’s initial view, on May 11, 2004, was that his needs would best be met by placement in a special education class.

25However, because the IPRC knew that Ms. Ismail wanted her son in a regular class setting, the IPRC decided on a half-day placement in a special education class (known as the Home School Program at Ionview) with the remainder of the day in the regular class setting.

26Ms. Ismail appealed the decisions of the IPRC and, ultimately, her appeal ended up before the Special Education Tribunal.

THE TRIBUNAL HEARING

27The Tribunal heard twenty witnesses over the course of fourteen days in 2005. The Tribunal heard from experts in special education, representatives from community organizations, Nafiz’s teachers and assistants, Ms. Ismail and other TDSB personnel.

28The Tribunal heard from Candace Brown, a Special Education Resource Teacher (“SERT”) and Reading Recovery teacher at Ionview, who conducted a reading assessment with Nafiz in November of 2004. Ms. Brown’s testing revealed that Nafiz did not self-correct his mispronunciation of words, which indicated that he did not recognize his reading errors. Ms. Brown’s testing also revealed that Nafiz was dependent on pictures in order to understand the meaning of words.

29The reading assessment revealed that Nafiz was reading at an instructional level of Grade 4 and that Nafiz would have considerable difficulty reading at the Grade 7 level.

30The Tribunal also heard from Cathryn Dockstader, Vice Principal and Special Education Resource Teacher at Ionview, who completed educational assessments with Nafiz in the fall of 2004. Ms. Dockstader’s assessments revealed significant gaps in Nafiz’s functioning levels. The Tribunal noted that those gaps may be even greater than the assessment results showed, since Ms. Dockstader gave Nafiz help and accommodation not normally given in an accurate assessment process.

31With respect to mathematics, Nafiz had to use a counter to add 4 plus 1. For subtraction, Nafiz had to use fingers to subtract 5 from 7. Moreover, Nafiz had no knowledge of fractions and was unable to estimate. Ms. Ismail’s evidence was that her son had to use a counter to add single digit numbers and that in order for Nafiz to complete 20 sums he would require two hours, whereas other children his age would need only half an hour to do them.

32With respect to literacy, Ms. Dockstader found Nafiz’s spelling to be at the Grade 2 level. For instance, Nafiz could not spell the words “paint”, “noise” and “sorry”. Nafiz could not use the words “cat, play, fun” to make a proper sentence. This type of exercise is expected of pupils at the Grade 1 level. The evidence from several teachers and educational assistants indicated that Nafiz could not function at the Grade 7 level and that it was not realistic for Nafiz to be expected to learn from the Grade 7 curriculum.

33Nafiz’s Grade 7 teacher, Ms. Steshenko, testified that Nafiz could not function at the Grade 7 level academically and that it was unrealistic to expect him to.

34As stated earlier, Nafiz also has significant deficits in his communication skills. His Grade 6 teacher, Ms. Pam Johnson, testified:

Q. Okay. Did you have an opportunity to see Ms. Ismail working with her son, on a daily basis?

A. Oh, definitely.

Q. Could you please describe his interactions for me?

A. Mrs. Ismail was very, very quiet, very, very discreet. She would – she sat right next to Nafiz, and she would – he had all his books there. And she would organize his books, and pick out the next book that he would need, and prepare for the class, like the other kids were doing. And Nafiz would have his pencils and erasers and things that he needed. He would sit and listen to the lesson and his mom would. And then she would – not translate, but expand and focus on something specific that I had said. So that when I finished the teaching part of the lesson and I get to – now, the lesson has the teaching, me talking, and then teaching the kids – interaction with the kids, and then usually some form of written or physical thing that they’re doing. Nafiz was not part of the question and answer period. He couldn’t handle that. So that was – I mean, I didn’t – I wouldn’t ask him a specific thing. He was of course there. Insofar as that, he was part of it. He was witness to it, but he wasn’t a participant…

35On the issue of identification, the Tribunal concluded that the psychological testing of Nafiz was no longer reliable and that new testing should be done to determine Nafiz’s exceptionality. However, the Tribunal upheld the TDSB’s decision with respect to placement and ordered that Nafiz be placed in a special education class for mathematics and language and that he be placed in the regular class for at least 50 percent of the day with assistance, as necessary.

THE STANDARD OF REVIEW

36Recently, this Court, on the agreement of the parties, held that the appropriate standard of review of a decision of the Tribunal was one of reasonableness.

Clough (Litigation Guardian of) v. Simcoe County District School Board (2005), 2005 18299 (ON SCDC), 197 O.A.C. 331 (Div. Ct.), para. 6

37The respondent Board, however, submits that since the decision of Lakeport Beverages v. Teamsters Local Union 938 (2005), 2005 29339 (ON CA), 258 D.L.R. (4th) 10 (Ont. C.A.), the standard of review of the Tribunal should be that of patent unreasonableness by analogy with Lakeport.

38Lakeport notes that the overriding question is the extent of judicial review the Legislature intended for a particular decision of an administrative tribunal and that the Court must consider:

…the four well-established contextual factors: the presence or absence of a privative clause or a statutory right of appeal; the expertise of the tribunal relative to the expertise of the reviewing court on the questions at issue; the purpose of the legislation and of the particular provision; and the nature of the question at issue.

39The applicable privative clause in the Education Act states:

The decision of the Special Education Tribunal is final and binding on the parties to the decision.

Education Act, supra, s. 57(3)

40Clearly, the Tribunal has “greater expertise than the reviewing court with respect to the question under review”. One of the areas of the Tribunal’s expertise is its knowledge of special education.

41The purpose of the legislative scheme is to ensure that children identified as exceptional are given placements which will enable the appropriate special education programs and services to be provided to them. Parents who disagree with a placement which their school board decides is appropriate are given the right to appeal, first to the Special Education Appeal Board and then to the Tribunal. The expertise of the Tribunal comes into play at the end of a comprehensive regulatory scheme and is particularly suited to the drawing of appropriate inferences from the fact-driven exercise undertaken by the Tribunal.

42The nature of the question is not, as the applicant submits, a pure question of law. The issues before the Tribunal were fact-driven: in the particular circumstances surrounding Nafiz, what was his appropriate identification and placement? The issue raises a question of mixed fact and law since it requires the application of the Act to the unique circumstances of Nafiz. Nothing in the Tribunal’s decision would have particular significance for future cases.

43For the purposes of this application, it is unnecessary to respond to the Board’s submission that the standard of review is patent unreasonableness. I find it appropriate to review the Board’s decision on the standard of reasonableness simpliciter. A review of the four well-established contextual factors outlined above establish that the standard of review, at the very least, is reasonableness simpliciter. I am confirmed in this approach by the recent judgment of our Court of Appeal in Elementary Teachers Federation of Ontario and Toronto District School Board, issued October 14, 2005, Docket # C43010. Speaking for the Court, Catzman J.A. is reported at para. 13:

Further, given that we are satisfied that the decision of the board of arbitration was reasonable, we find it unnecessary to consider whether a distinction between the standards of patent unreasonableness and reasonableness is appropriate on the facts of this case.

44The Supreme Court of Canada has described the proper approach for a reviewing court to take when 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, p. 270

45The applicable test in determining the appropriate placement of an exceptional pupil is whether it is in the best interests of the child.

Eaton v. Brant County Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241, pp. 278-279

46At page 17 of its reasons, the Tribunal applied the following test:

The issue is this: What is the best placement for Nafiz in order to meet his current needs? The Tribunal considered Nafiz’s needs to determine if they could be best met in a regular classroom, a special education classroom or a combined setting where both classroom types are available to Nafiz.

47The Tribunal concluded that a regular class placement was not in Nafiz’s best interests. In its decision, the Tribunal stated:

The Tribunal is concerned that a child who has been in regular classes for ten years and continues to have difficulty with the meaning of what he is reading. This, combined with the large gaps in his learning, as reported by Ms. Brown, SERT for Ionview Public School, causes the Tribunal to question what kind of real progress Nafiz has made in these ten years. Also, given that he has had his mother with him for a large percentage of his schooling, it is difficult to know what he actually can and cannot do. The gap has widened academically by at least five years in some areas.

Nafiz, at fourteen years old, is at a stage where preparation for his future education is necessary. Remaining in a regular class full-time is not in Nafiz’s best interests. Full integration without the opportunity to learn specific skills may come at a cost of learning the basic skills that lead to independence. The Tribunal believes that without direct intervention, Nafiz will fall further and further behind. Confidence and motivation may decrease accordingly.

The Tribunal agrees with the Supreme Court of Canada’s observation in Eaton v. Brant County Board of Education, which noted that ‘the tribunal observed at the outset that it is the extent of one’s special needs which provokes consideration of a special placement, and not the fact that his needs are different from the mainstream’. In Nafiz’s case, the evidence has shown that his needs are significant, and that having an opportunity to work on specific skills in the Home School program in both the language and mathematics areas will be of great benefit to him. This, balanced with the regular classroom, will better prepare him for his future education.

Tribunal Reasons, p. 20

48It was the applicant’s wish to have Nafiz receive one-to-one support throughout the school day. The Tribunal heard considerable evidence to the effect that this was not in Nafiz’s best interest and concluded:

The evidence showed that maintaining Nafiz in a regular class with his mother or an educational assistant all the time did not provide him with the opportunity to experience independence. A one to one relationship with an educational assistant creates an overdependence.

The board, quite rightly, has not considered assigning an education assistant to Nafiz for the purpose of assisting him throughout the entire day. The Tribunal agrees, and believes, that too much one to one support can result in a child failing to benefit from the stimulation and models provided by the peer group. Instead, Nafiz needs to learn to work cooperatively and independently, and to develop social relationship with his peers.

Tribunal Reasons, p. 21

49The Tribunal ordered the respondent to place Nafiz in the special education class for mathematics and language and in the regular class, with assistance where necessary, for the remainder of the day. I find the decision of the Tribunal to be reasonable and one it was entitled to make on the evidence before it.

50I reject the applicant’s submission that the Tribunal violated s. 8(3) of the Education Act reproduced earlier in these reasons. The section requires the Minister of Education to ensure that exceptional pupils have available to them special educational programs and special educational services without the payment of any fees. It requires the Minister to provide to the parents a manner in which to appeal the special education placement. It further requires the Minister to ensure that school boards implement procedures for the early and on-going identification of the learning needs of pupils and, with respect to special education programs and services, the defining of exceptionalities of pupils. The Tribunal’s task is to consider the “appropriateness” of the placement in which special education programs and services are to be delivered. The section does not impose any other obligations on the Tribunal.

51I find s. 8(3) of the Act has been complied with. The IPRC identified Nafiz as an exceptional student early on in his education and continues to take part in a review on an annual basis. Both the Board and the Tribunal considered his educational needs and the range of placements to meet those needs, including the special education programs and services to be provided in those placements.

52I reject the submission that the Tribunal and the Board violated s. 17 of O. Reg. 181/98, set out earlier in these reasons. The Board considered whether Nafiz’s needs could be met within a regular class with appropriate services and in doing so, considered Ms. Ismail’s preference. Her preference was to have Nafiz remain in a regular class, which is why the IPRC altered its original recommendation to place Nafiz in a special education class full-time. The Tribunal found the evidence to indicate that it was not in Nafiz’s best interests to have him receive one-to-one support throughout the day, as his mother wished.

53Ms. Ismail alleges that the Tribunal did not undertake an analysis of s. 15 of the Canadian Charter of Rights and Freedoms when it made its placement decision. I reject this submission. As this Court observed in Clough, above, the important question is whether the decision is consistent with Charter principles.

54In Eaton, above, at p. 273, the Supreme Court of Canada specifically noted that unique conditions of disability are a prohibited ground of discrimination, adding that disability “means vastly different things depending on the individual and context”.

55Regarding special education, the Supreme Court went on to say:

In some cases, special education is a necessary adaptation of the mainstream world which enables some disabled pupils access to the learning environment they need in order to have an equal opportunity in education. While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality.

Eaton, above, at p. 274

56I find the Tribunal recognized that for Nafiz, total integration would work to his disadvantage, because he needed the special education recommended by those responsible for his placement. The Tribunal’s decision recognized Nafiz as a special person with special needs.

57The Tribunal finding was reasonable. The application is dismissed.

58Neither the Board nor the Tribunal seeks costs. There shall be no order as to costs.