R(H.C.) v. Ontario Special Education Tribunal

CITATION: R(H.C.) v. Ontario Special Education Tribunal, 2025 ONSC 5677

DIVISIONAL COURT FILE NO.: 525/25

DATE: 2025-10-06

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: R(H.C.)

AND: Ontario Special Education Tribunal, Toronto District School Board, and Ministry of Education

BEFORE: Justice O’Brien

COUNSEL: Applicant H.C., Self-Represented N. Simmons and A. Smith, Counsel for Toronto District School Board V. Crystal and O. Filetti, Counsel for the Ontario Special Education Tribunal E. Bala, Counsel for the Attorney General for Ontario

HEARD: In-writing

ENDORSEMENT

***ADDENDUM dated January 19, 2026: By order dated January 16, 2026, the court granted the Tribunal’s request for an order anonymizing the applicant’s name and preventing the publication of any information that could identify the child or the child’s family.

[1] This endorsement provides my reasons for dismissing this judicial review application pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The applicant is seeking judicial review of a June 20, 2025 interim decision of the Ontario Special Education (English) Tribunal. In its decision, the Tribunal dismissed the applicant’s request for the adjudicators to recuse themselves because of a reasonable apprehension of bias. In a June 26, 2025 decision, the Tribunal also refused to stay the Tribunal proceedings to allow the applicant to proceed with his application for judicial review.

[3] During the case management process, the court issued directions raising the concern that the application was frivolous, vexatious, or an abuse of process of the court and asking the Registrar to issue a notice under r. 2.1. The case management directions, which were provided to the parties with the r. 2.1 notice, asked the applicant to address the following concerns in his r. 2.1 submissions:

1. The decision the applicant seeks to review is an interim decision of the Tribunal. The Tribunal process is ongoing, with the next step being to obtain submissions from the parties on a jurisdictional question that has arisen. There have been several hearing dates scheduled.

2. Absent exceptional circumstances, the court will not intervene on judicial review in an ongoing administrative proceeding.

3. There do not appear to be any exceptional circumstances that would warrant the court’s intervention at this stage of the Tribunal’s proceeding.

4. If the applicant is ultimately unsuccessful before the Tribunal, it will remain open to him to seek judicial review of the Tribunal’s decision.

[4] The applicant filed responding submissions in which he argues that his application raises exceptional circumstances related to procedural fairness and jurisdiction. He submits the Tribunal demonstrated a reasonable apprehension of bias and denied him a fair opportunity to complete his case by interrupting him, preventing him from providing relevant evidence and jurisprudence, and actively questioning the Tribunal’s jurisdiction mid-hearing. He submits that although the application for special education placement was centered around his child, there is a significant public interest to the issues of promoting transparency and accountability regarding systemic issues in public education.

[5] After receipt of the applicant’s submissions, the court process was interrupted by an order pursuant to s. 257.31(2) of the Education Act, R.S.O. 1990, C. E.2, which vested in the Ministry of Education control and charge over the administration of the affairs of the Toronto District School Board. Subsection 257.32(2) of the Education Act provides that once notice of an order pursuant to s. 257.31(2) is published in the Ontario Gazette, “no proceeding against the board shall be commenced or continued in any court without leave of the Minister,” and “no order of any court shall be enforced against the board without leave of the Minister.” The Ministry published the notice in the Ontario Gazette volume dated July 12, 2025.

[6] The applicant has now obtained leave from the Minister to continue this proceeding. The court is therefore issuing its r. 2.1 decision.

[7] For the following reasons, I find the application for judicial review should be dismissed.

[8] Rule 2.1.01 allows the court to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.

[9] The rule “must be interpreted robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8.

[10] In this case, the application is patently premature. The decision the applicant seeks to review is an interim decision. The Tribunal’s proceeding is ongoing, with multiple further hearing dates to be completed. If the applicant is dissatisfied with the results of the Tribunal’s proceeding, he can seek judicial review of the Tribunal’s final decision.

[11] Absent exceptional circumstances, courts should not interfere in ongoing administrative proceedings until after they are completed or until effective remedies are exhausted. This is a principle “scrupulously” followed in this court to avoid the fragmentation of proceedings: Awada v. Allstate, 2021 ONSC 8108, at paras 7-9.

[12] Allegations of bias and other allegations of procedural unfairness do not on their own constitute exceptional circumstances. The test for bias is stringent and difficult to meet. There is a strong presumption of impartiality on the part of decision-makers, which is not easily displaced: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at para. 25. Further, the Tribunal’s decision to focus the applicant’s evidence does not mean he will not be able to raise his arguments during the submission portion of the hearing. Indeed, the Tribunal expressly stated he could address whether the placement he sought was available to the Tribunal in written submissions on jurisdiction. The court would benefit from the Tribunal’s ruling on this issue before addressing the matter on judicial review. The applicant may raise bias as a basis for review if he seeks judicial review of the Tribunal’s final decision but at this stage his allegations of bias do not raise exceptional circumstances.

[13] The applicant’s submission that the Tribunal improperly raised a jurisdictional issue during the hearing also does not constitute an exceptional circumstance. The Tribunal intends to continue to address this issue through written submissions. Raising a jurisdictional issue during the course of a hearing is not on its face improper and would not justify the early intervention of this court.

[14] The applicant emphasizes that the application relates to the educational opportunities for an eight-year-old non-verbal autistic child. This factor is very significant but underscores the importance of allowing the Tribunal to do its work. The Tribunal has expertise and is designated to make the initial administrative decisions raised by the applicant’s proceeding. It should be allowed to complete its process without interruption by court processes. Once it has done so, should judicial review be necessary, the court will benefit from a full record and decision by the Tribunal.

[15] The applicant cited several cases in his submissions. None of the cases support the position that the Tribunal’s process should be interrupted for the court’s intervention. Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 SCR 3 is distinguishable. In that case, the court was concerned with structural institutional independence, rather than with the applicant’s subjective concerns about a tribunal’s conduct. Related to this, the court there had all the necessary evidence before it to assess institutional independence, whereas in this case there is an ongoing opportunity for the applicant to raise his submissions on jurisdiction before the Tribunal: Matsqui, at para. 102.

[16] Overall, there are no exceptional circumstances that would justify interfering in the Tribunal’s ongoing proceedings. The application is doomed to fail and therefore is dismissed pursuant to r. 2.1.01.

Request for Anonymization

[17] The applicant has asked for an anonymization order. I am releasing this endorsement with the applicant’s name anonymized on an interim without prejudice basis. The applicant advises that the Tribunal issued a “confidentiality order,” which anonymized the proceedings in that forum. The applicant seeks the continuation of that order in this court.

[18] I note that while the applicant has also filed a notice of motion seeking to be appointed as his child’s litigation guardian, that is not the appropriate process for the purpose of this application, since the applicant himself was the party in the underlying proceeding.

[19] In order to obtain a sealing and/or non-publication order in this court, the applicant must:

1. File a notice of motion setting out the relief he seeks;

2. Provide a copy of the Tribunal’s order that he seeks to have continued;

3. For the non-publication order, provide notice of the motion to all parties including the media in accordance with Part IX of the Divisional Court’s Practice Direction: Consolidated Practice Direction for Divisional Court Proceedings – Ontario Superior Court of Justice;

4. Provide the position of the responding parties on the requested order.

[20] Once that material is received, the court will issue further directions on this issue.

O’Brien J

Date: October 6, 2025