Bonnah by his Litigation Guardian Bonnah v. Ottawa-Carleton District School Board

[Indexed as: Bonnah (Litigation Guardian of) v. Ottawa-Carleton District School Board]

64 O.R. (3d) 454

[2003] O.J. No. 1156

Docket No. C38421

Court of Appeal for Ontario

Doherty, Austin and Charron J.A.

April 8, 2003

Schools -- "Exceptional pupil" -- Student with developmental disabilities -- Placement of exceptional pupil -- Power to transfer pupil for safety concerns -- Exceptional pupil appealing placement order having a right to retain current school placement pending the outcome of appeal -- Exceptional student's right to retain current placement cannot be overridden by any implied power to transfer for safety reasons -- Education Act, R.S.O. 1990, c. E.2, ss. 8(3), 265(1)(m) -- O. Reg. 181/98 -- O. Reg. 137/01

Zachary Bonnah is an 11-year-old child with disabilities. He is an "exceptional pupil" as defined by the Education Act. In the fall of 2000, Zachary, who had attended Clifford Bowey Public School -- a school that catered to the needs of children with developmental disabilities -- was placed in a regular grade two class at Manor Park Public School. At the request of the principal, Zachary's placement was reviewed by the Identification Placement and Review Committee ("IPRC"). The IPRC decided that he be moved back to Clifford Bowey. Zachary's parents appealed the decision and, under the regulations, Zachary was to stay at Manor Park pending the outcome of the appeal, unless his parents agreed to a change.

Zachary, who acted out on occasion, was larger than the other students in his class, and the principal was concerned about him being a safety risk to himself, other students, and staff. In December 2001, while the appeal of the IPRC decision was still pending, a decision was made to transfer Zachary back to Clifford Bowey. This was referred to as an administrative transfer. Zachary's father regarded the administrative transfer as an attempt to circumvent the stay of the IPRC decision, and he applied for judicial review. The application for judicial review was dismissed. Meanwhile the Special Education Appeal Board (SEAB) completed hearing the appeal of the IPRC decision and, in July 2002, SEAB made recommendations. Mr. Bonnah appealed the SEAB decision, and ultimately a final decision was made that Zachary be placed in a dual diagnosis classroom.

The SEAB decision rendered moot the issue of Zachary's placement, but the Court of Appeal exercised its discretion to consider the judicial review appeal on the issue of whether the school board had the authority to transfer Zachary to a different school for safety reasons while an appeal from the decision to change his placement under provisions relating to exceptional students was outstanding.

Held, the appeal should be dismissed as moot.

The conflict between a school board's duty to remove a student from a particular school to preserve the safety of that school and its obligation to leave an exceptional student in his or her current placement pending the completion of the appeal would certainly arise again. Where a matter, although moot, has been fully litigated and is of general importance, a court may exercise its discretion to hear the appeal.

Looked at in isolation from other provisions of the Education Act and the regulations, the scheme governing the placement of exceptional pupils contemplated that the placement of those pupils will not change while the placement decision is being made and reviewed at the various levels provided for in the Act and regulations. However, the provisions could not be viewed in isolation. Read together, s. 265(1)(m) of the Act and s. 3(1) of the regulation authorize principals to refuse to allow persons into a school, and to require persons, which encompassed pupils and non-pupils, to leave a school, where the principal determines that the presence of that person in the school would be detrimental to the safety of others in the school. These provisions allow principals to act quickly where the conduct of a person puts the safety of those under charge of the principal at risk. A principal could properly exercise these powers only where the safety concerns are genuine and the principal's response to those concerns is a reasonable one in all of the circumstances. Where a principal exercises his powers under s. 265(1)(m) and s. 3(1), he or she must bear in mind the special significance of the placement decision as it relates to exceptional pupils and strive to minimize any interference with that placement.

Exceptional pupils were not beyond the reach of s. 265(1)(m) and s. 3(1), but exceptional pupils cannot be transferred to a different school for safety reasons while an appeal from a placement decision is pending. Neither s. 265(1)(m) nor s. 3(1) authorizes a transfer. An exceptional pupil who is appealing from a placement order made by the IPRC has a right to retain his or her current placement pending the outcome of that appeal. That right flows from the provisions that effectively stay the IPRC decision. The express right to remain in the placement cannot be overridden by any implied power to transfer for safety reasons. Under the present scheme, a principal, and ultimately the Board, may exclude an exceptional pupil from his or her school or class for legitimate safety reasons. They cannot, however, alter that placement by purporting to transfer the exceptional pupil to a different school. Having determined that Zachary could not attend Manor Park because of safety concerns, the most the Board could do under the present scheme was offer an alternative placement to Zachary's parents where, in the Board's view, the safety concerns did not arise. Zachary's parents would then have to decide whether to send Zachary to that other school pending the outcome of their appeal. If they declined to do so, Zachary would remain out of school.

APPEAL with leave from an order dismissing an application for judicial review.

Cases referred to Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, 75 Sask. R. 82, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, 38 C.R.R. 232, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105; Eaton v. Brant County Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241, 31 O.R. (3d) 574n, 142 D.L.R. (4th) 385, 207 N.R. 171, 41 C.R.R. (2d) 240; Payne v. Ontario (Minister of Energy, Science and Technology), 2002 45002 (ON CA), [2002] O.J. No. 2566 (QL), 162 O.A.C. 48 (C.A.) Statutes referred to Education Act, R.S.O. 1990, c. E.2, s. 1 "exceptional pupil", 8(3), 57(3), 265(1)(m), 305 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(2) Safe Schools Act, 2000, S.O. 2000, c. 12 The Education Amendment Act, 1980, S.O. 1980, c. 61, s. 1(1) "exceptional pupil" Rules and regulations referred to O. Reg. 181/98 ("Education Act") [as am. O. Reg. 137/01], ss. 10, 14, 15, 16, 17, 18, 19, 20, 26, 28, 29, 30, 31(1) O. Reg. 474/00 ("Education Act"), s. 3(1)

Charles T. Hackland and Ritu Gambhir, for appellant. Roger R. Mills and John Summers, for respondent. Martha Mackinnon and Lee Ann Chapman, for intervenor The Canadian Foundation for Children, Youth and the Law.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] This appeal comes to this court with leave from the order of Ratushny J. dismissing an application for judicial review. [^1] There are three issues:

-- Did the Ottawa-Carleton District School Board (the "Board") have the authority to transfer Zachary Bonnah ("Zachary") to a different school for safety reasons while an appeal from the decision to change his placement under provisions relating to exceptional pupils was outstanding?

-- Did the Board act fairly in ordering Zachary's transfer?

-- Was the decision to transfer Zachary for safety reasons supported by the record?

[2] Events which have transpired since the order granting leave to appeal have settled the question of Zachary's placement within the Board. The appeal has been rendered moot in that any decision this court might make would not affect Zachary's present placement. While a court will usually not hear moot appeals, it has a discretion to do so. I would exercise that discretion in favour of determining the first of the three issues outlined above on its merits. I would not address the merits of the second and third issues.

II

[3] Zachary is 11 years old and has a variety of disabilities. He functions at the level of a kindergarten child. Zachary is an "exceptional pupil" as that phrase is defined in the Education Act, R.S.O. 1990, c. E.2 (the "Act"). As an exceptional pupil, Zachary's placement and the program provided for him are determined according to a detailed regulatory scheme designed to determine and serve the needs of students who face challenges like those faced by Zachary.

[4] Zachary has attended school since he was six years old. From December 1996 to March 2000, he attended Clifford Bowey Public School. That school caters to the needs of children with developmental disabilities. Beginning in the fall of 2000, Zachary was placed in a regular class environment at Manor Park Public School. Initially, he was in the regular class on a part-time basis. An educational assistant was provided to help Zachary. In September 2001, Zachary began the school year in a regular grade two class at Manor Park Public School on a full-time basis.

[5] In October 2001, the principal of Manor Park requested a review [of] Zachary's placement. That request was based in part on safety concerns. Zachary, who acted out on occasion, was much larger than the other children in the grade two classroom. Under the relevant regulation, Zachary's placement was reviewed initially by the Identification Placement and Review Committee ("IPRC").

[6] On October 26, 2001, the IPRC recommended that Zachary be moved from Manor Park back to Clifford Bowey, a segregated placement school. Zachary's parents would not consent to the change in his placement and exercised their rights of appeal. Pursuant to the relevant regulations, Zachary was to remain in his placement in the regular grade two class pending the outcome of the appeals unless his parents agreed to a change.

[7] The principal at Manor Park remained concerned about the safety of Zachary, other students and staff. Those concerns were expressed to Zachary's parents and officials at the Board. In late December 2001, Mr. Bonnah was advised that it had been decided that Zachary's continued presence at Manor Park posed an immediate and significant risk to the safety of himself, other students and staff. Mr. Bonnah was told that Zachary would be transferred because of those safety concerns from Manor Park to Clifford Bowey effective when school resumed in January 2002. The school authorities referred to this as an administrative transfer.

[8] Mr. Bonnah's appeal from the decision of the IPRC was still outstanding. In Mr. Bonnah's view, the administrative transfer was an attempt to circumvent the stay of the IPRC decision effected by the appeal taken by Mr. Bonnah from that decision. He decided not to send Zachary to Clifford Bowey, but to challenge the Board's action by way of judicial review. Zachary did not return to school in January 2002 and was still not in school when this appeal was heard in December 2002.

[9] The application for judicial review was dismissed in March 2002. Leave to appeal was granted in June 2002. When leave was granted, the appeal from the decision of the IPRC was still outstanding. On the hearing of this appeal on December 6, 2002, the court received fresh evidence detailing the progress of that appeal.

[10] In April and June 2002, the appeal was heard by the Special Education Appeal Board ("SEAB"). In July 2002, SEAB recommended a semi-integrated placement which combined part-time attendance in regular classes with part-time placement with other exceptional students. The Board chose to implement some, but not all of the SEAB recommendations.

[11] Mr. Bonnah appealed the Board's decision to the Special Education Appeal Tribunal (the "Tribunal"). The appeal was heard in October 2002. The Tribunal issued its interim decision on December 3, 2002 and its final decision on January 14, 2003. The Tribunal allowed the appeal, but did not order that Zachary be placed in Manor Park School. The thrust of the Tribunal's order is set out below:

The Tribunal orders that the Ottawa-Carleton District School Board place Zachary Bonnah forthwith in a grade 7 regular class in a community school where there is also a class for children with a dual diagnosis. Within the regular class setting, Zachary will participate in opening exercises, lunch, physical education, music, and if a computer lab is available, a computer program. The remainder of Zachary's school day will be spent in the dual diagnosis classroom where he will receive his academic program.

[12] The decision of the Tribunal is final and cannot be appealed. The Board has a placement available that will conform with the order of the Tribunal.

III

The Reasons of the Application Judge

[13] The application judge concluded that, like all other students, Zachary did not have a vested right to attend any particular school within the jurisdiction of the Board. She further held that the Board had the authority to transfer students for safety reasons. That authority extended to exceptional pupils, even if the transfer had the effect of changing an exceptional pupil's placement while an appeal in respect of that placement was outstanding. The application judge next held that the Board's decision to transfer Zachary for safety reasons was open to judicial review on the grounds that the Board had acted without legal authority or unfairly. She held, however, that the Board's transfer of Zachary was made fairly and with just cause. She concluded, at para. 39:

There were bona fide and serious safety concerns arising from Zachary's behaviour at Manor Park. The Board had the statutory power to make its administrative transfer decision based on those safety concerns. In making that decision, it did not act unfairly toward the Applicant. The issues at the heart of this dispute involve the educational resources needed for Zachary to be able to succeed in a regular school environment. Those issues are more appropriately decided under the Regulation 181/98 procedures [the IPRC appeal procedures] and not on this application.

IV

The Mootness Issue

[14] In its application and notice of appeal, the appellant sought an order setting aside the transfer of Zachary from Manor Park to Clifford Bowey and a direction that Zachary's placement not be altered pending the outcome of the appeal from the IPRC ruling. Events have overtaken the relief sought by the appellant. Zachary's placement has now been determined by the Tribunal. Whatever decision this court might make will not affect that placement.

[15] In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, at p. 353 S.C.R., Sopinka J. said:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. . . .

[16] This case fits squarely within the description of mootness provided in Borowski, supra. Borowski, supra, however, makes the further point that a court has a discretion to decide a matter that has been rendered moot. The principles governing the exercise of that discretion are set out in Borowski, supra, at pp. 358-63 S.C.R. and were recently summarized by this court in Payne v. Ontario (Minister of Energy, Science and Technology), 2002 45002 (ON CA), [2002] O.J. No. 2566 (QL), 162 O.A.C. 48 (C.A.). According to those principles, a court may exercise its discretion in favour of hearing a moot appeal where the issue that has become moot was fully litigated before the court, is of general importance and is likely to arise in the future either in litigation involving the same parties or different parties.

[17] Those factors weigh strongly in favour of hearing this appeal insofar as it involves the question of the interaction of the Board's duty to ensure the safety of its schools and its obligations to exceptional pupils. The conflict between the Board's duty to remove a student from a particular school to preserve the safety of that school and the Board's obligation to leave an exceptional pupil in his current placement pending the completion of the appeal process will surely arise again. An interpretation of the relevant provisions of the Act and its regulations by this court would guide school boards and parents when these difficult problems arise and will hopefully avoid the need for further litigation. The issue is also ripe for resolution in that it has been fully litigated before this court. The court has had the advantage of full and careful submissions from the parties, and helpful submissions from the intervenor, the Canadian Foundation for Children, Youth and Law. I would decide the first issue raised on this appeal.

[18] The second and third grounds of appeal relate to the fairness of the process followed by the Board in arriving at its decision to transfer Zachary, and the merits of that decision. Neither ground of appeal raises an issue of general importance. The determination of each of these issues depends on an analysis of the specific facts and circumstances revealed by this record. The application judge conducted that analysis to the extent that she felt she was entitled to do so on a judicial review application. Since Zachary's placement has now been determined by the Tribunal, nothing would be gained by this court entering upon a consideration of the fairness of the process used in deciding to transfer Zachary or the merits of that decision.

V

The Statutory and Regulatory Scheme

[19] Everyone agrees that schools must strive to create an environment in which all students, including those with exceptional needs, can thrive and achieve their full potential. It is equally clear, however, that if schools are not safe, students cannot achieve that potential. The Act and its regulations address both imperatives.

[20] The Act and regulations provide a comprehensive scheme for the identification and placement of exceptional pupils. Broadly stated, the provisions provide for a committee which identifies exceptional pupils and determines, hopefully with the co-operation of school authorities and parents, the appropriate placement for those students who are identified as exceptional pupils. Placement decisions are subject to two levels of appeal at the instance of the parents.

[21] The phrase "exceptional pupil" first appeared in the Education Act in 1980: The Education Amendment Act, 1980, S.O. 1980, c. 61. An "exceptional pupil" is defined as:

. . . [A] pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he is considered to need placement in a special education program . . .

[22] The key provision in the Act is s. 8(3):

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.

[23] Ontario Regulation 181/98, as amended by O. Reg. 137/01, entitled "Identification and Placement of Exceptional Pupils" puts flesh on the statutory bones of s. 8(3) of the Act. Section 10 provides for the creation of the IPRC. Section 14 sets out the manner in which a pupil may be referred to IPRC for a determination of whether that pupil should be identified as an exceptional pupil. If the pupil is so identified, the IPRC will make a placement decision. Sections 15 and 16 describe the nature of proceedings before the IPRC and the material that it may consider.

[24] Section 17 of the regulation directs that the IPRC is to consider placement in a regular class with appropriate special educational services before it considers the option of placement in a special education class. If placement in a regular class with appropriate special educational services meets the exceptional pupil's needs and is consistent with the preferences of the parents, the exceptional pupil should be placed in a regular class.

[25] In Eaton v. Brant County Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241, 142 D.L.R. (4th) 385, at pp. 278-79 S.C.R., Sopinka J. indicated that the placement decision must take into account all of the needs of the exceptional pupil, including safety concerns. Ultimately, the best interests of the exceptional pupil would determine the appropriate placement. [^2]

[26] Sections 18 and 19 of the regulation require the IPRC to notify the parents of its decision and to reassess that decision if so requested by the parents. Section 20 is an important provision on this appeal:

20(1) A board shall implement a placement decision made by a committee under this Part when one of the following two events occurs:

1. A parent of the pupil consents in writing to the placement.

2. The time period provided in subsection 26(2) for filing a notice of appeal from the decision expires without a notice of appeal being filed.

(2) The board shall implement a placement decision made by a committee under this Part as soon as possible after an event described in paragraph 1 or 2 of subsection (1) occurs.

(3) A board that, without the written consent of a parent of the pupil, implements a placement decision made by a committee under this Part shall give written notice of the implementation to a parent of the pupil.

[27] I agree with the appellant's contention that the effect of s. 20 is to stay the placement decision of the IPRC when a parent files a notice of appeal. While the appeal is outstanding, the exceptional pupil's placement remains as it was before the IPRC decision.

[28] The appeal goes to the SEAB pursuant to s. 26 of the regulations. SEAB is authorized to make recommendations concerning the placement of the exceptional pupil to the relevant school board. The school board must consider those recommendations but is not obliged to accept them (s. 28, s. 29). After a school board determines what action it will take on the recommendations made by SEAB, it must notify the parent of that decision (s. 30). Section 31(1) of the regulation reads:

31(1) The board shall implement a decision under subsection 30(1) when one of the following events occurs:

1. A parent of the pupil consents in writing to the decision.

2. Thirty days have elapsed from receipt of the notice under subsection 30(1) by a parent of the pupil and no appeal has been commenced in respect of the decision under section 57 of the Act.

3. An appeal under section 57 of the Act from the decision is dismissed or abandoned.

[29] Once again, I agree with the appellant's contention that the effect of s. 31 is to prevent a school board from implementing a placement decision it makes after an SEAB recommendation while an appeal is pending from that decision.

[30] The appeal contemplated by s. 31 of the regulation goes to the Special Education Tribunal ("Tribunal") pursuant to s. 57(3) of the Act. The Tribunal may dismiss the appeal or may grant the appeal and make such order as it considers necessary with respect to the placement of the exceptional student. The decision of the Tribunal is final and binding on the parties.

[31] Looked at in isolation from other provisions of the Act and the regulations, the scheme governing the placement of exceptional pupils clearly contemplates that the placement of those pupils will not change while the placement decision is being made and reviewed at the various levels provided for in the Act and regulations. I agree, however, with the respondent that those provisions cannot be viewed in isolation.

[32] Counsel for the Board submits that the principal's authority to exclude Zachary from Manor Park School is found in s. 265 of the Act which outlines the duties of a principal, and in a regulation passed under s. 305 of the Act which allows the Minister to make regulations governing access to school premises. Section 265(1)(m) reads:

265(1) It is the duty of a principal of a school in addition to the principal's duties as a teacher,

(m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal's judgment be detrimental to the physical or mental well-being of the pupils; . . .

[33] Section 305 is included in Part XIII of the Act, entitled "Behaviour, Discipline and Safety". That part of the Act was introduced by the Safe Schools Act, 2000, S.O. 2000, c. 12. The section empowers the Minister to make regulations governing access to school premises. Ontario Regulation 474/00 governing access to school premises provides in part:

3(1) A person is not permitted to remain on school premises if his or her presence is detrimental to the safety or well-being of a person on the premises, in the judgment of the principal, a vice-principal or another person authorized by the Board to make such a determination.

[34] Read together, s. 265(1)(m) and s. 3(1) of the regulation authorize principals to refuse to allow persons into a school, and to require persons to leave a school, where the principal determines that the presence of that person in the school would be detrimental to the safety of others in the school. These provisions allow principals to act quickly where the conduct of a person puts the safety of those under the charge of the principal at risk. Obviously, a principal can properly exercise these powers only where the safety concerns are genuine, and the principal's response to those concerns is a reasonable one in all of the circumstances. If it were shown that a principal used these powers to circumvent an obligation to leave an exceptional pupil in his or her placement pending an appeal, the court could intervene by way of judicial review just as it could if a principal used these powers for any other improper purpose.

[35] The word "person" in s. 265(1)(m) and s. 3(1) of the regulation should be given its normal meaning. That meaning encompasses pupils as well as non-pupils. Nor, in my view, does the existence of special provisions relating to the placement of exceptional pupils warrant interpreting the word "person" in s. 265(1)(m) and s. 3 of the regulation as not including exceptional pupils. Section 265(1)(m) and s. 3(1) are not concerned with the placement of students according to their educational needs, but rather with preserving the safety of schools. The question of where an exceptional pupil should be placed to meet that pupil's best interests is a different question from the question of whether at a particular point in time a student poses a risk to the safety of himself or others in the school where he has been placed. It is an undeniable fact of life that a student may be both an immediate safety risk to others and an exceptional pupil. An interpretation of s. 265(1)(m) and s. 3(1) that would place exceptional pupils beyond the reach of a principal's power to exclude persons for safety reasons from the school is not only inconsistent with the language used in the Act and the regulation, but would seriously imperil the safety of exceptional pupils and other children who interact with that exceptional pupil. Where there are genuine safety concerns, considerations of the best interests of the child must extend to all of the children whose safety is at risk.

[36] That is not to say that the pupil's status as an exceptional pupil with respect to whom a placement decision is been made will be irrelevant to the manner in which a principal exercises his or her authority under s. 265(1)(m) and s. 3(1) of the regulation. Placement of exceptional pupils requires considerable expertise and careful assessment. Where a placement decision is challenged by the parents, it is clearly the policy of the Act and the regulations to leave the status quo in place while that challenge is considered. Where a principal must exercise his powers under s. 265(1)(m) or s. 3(1), he or she must bear in mind the special significance of the placement decision as it relates to exceptional pupils and strive to minimize any interference with that placement. For example, if safety concerns can be properly addressed by removal from the classroom rather than the school, then the more limited removal must be preferred in the case of an exceptional pupil.

[37] Similarly, I see no reason to interpret the discipline provisions in Part XIII of the Act as not being applicable to exceptional pupils. The power to discipline by way of suspension or expulsion must have the potential to reach all pupils if it is to serve its purpose. As the regulations recognize, however, disciplinary measures must take into account individual circumstances: O. Reg. 137/01, s. 2. I need not explore the application of the discipline provisions to exceptional pupils in any more detail as the Board does not rely on its power to discipline to support its decision to transfer Zachary.

[38] Although I cannot accept the submission advanced by the appellant to the effect that exceptional pupils are, by virtue of their status, beyond the reach of s. 265(1)(m) and s. 3(1), I also cannot accept the Board's contention that exceptional pupils can be transferred to a different school for safety reasons while an appeal from a placement decision is pending. Neither s. 265(1)(m) nor s. 3(1) authorizes a transfer. Nor do I understand the Board to argue that any other provision of the Act or regulations made under the Act expressly authorized the transfer of Zachary for safety reasons. As I understand the submission, the Board contends that its power to order the transfer flows from its power to remove Zachary from Manor Park for safety reasons and its general authority to determine what school any particular student should attend within the Board.

[39] The Board's submission may have merit in the case of pupils who are not exceptional pupils. I need not determine that question. Whatever may be the case with other pupils, an exceptional pupil who is appealing from a placement order made by the IPRC has a right to retain his or her current placement pending the outcome of that appeal. That right flows from the provisions outlined above which effectively stay the IPRC decision. In my view, that express right to remain in the placement cannot be overridden by any implied power to transfer for safety reasons.

[40] Under the present scheme, a principal, and ultimately the Board, may exclude an exceptional pupil from his or her school or class for legitimate safety reasons. They cannot, however, alter that placement by purporting to transfer the exceptional pupil to a different school. Having determined that Zachary could not attend Manor Park because of safety concerns, the most the Board could do under the present scheme was offer an alternative placement to Zachary's parents where, in the Board's view, the safety concerns did not arise. Zachary's parents would then have to decide whether to send Zachary to that other school pending the outcome of their appeal. If they declined to do so, Zachary would remain out of school.

[41] I cannot leave this case without observing that it is obvious that all parties desire what is best for Zachary. It is most unfortunate that he was out of school for all of 2002. It may be that the regulations should be amended to give the appropriate body (for example, the IPRC) the authority, where the circumstances demand, to address safety concerns by way of interim placement orders that would have effect pending the resolution of any appeal from a placement decision.

VI

[42] I would dismiss the appeal as moot. This is not a case for costs.

Appeal dismissed without costs.

Notes

[^1]: Ratushny J. heard the application under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. No issue was taken on the appeal with her exercise of this jurisdiction.

[^2]: Section 17 of the regulation was not in existence when Eaton, supra, was decided.