Furgasa v. Toronto District School Board, 2026 ONSC 563

CITATION: Furgasa v. Toronto District School Board, 2026 ONSC 563

DIVISIONAL COURT FILE NOS.: 423/23-JR and 188/24-JR

DATE: 20260203

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, R.D. Gordon and R.A. Lococo JJ.

BETWEEN:

GIRMA FURGASA

Applicant

Frances A. Marinic, for the Applicant

• and -

TORONTO DISTRICT SCHOOL BOARD

Respondent

Maija-lisa Robinson, for HRTO

Justin Martin and Jennifer P. Saville, for Toronto District School Board

Morgana Kellythorne, for OSET

HEARD at Toronto: October 21, 2024[^1], in person; March 3, 2025, by videoconference

REASONS FOR DECISION

D.L. Corbett J.

[1] These applications reflect a procedural morass facing families of “exceptional” students in publicly funded school systems. The “system” must do better; these reasons explain why.

[2] The Applicant is the father of K.S., who lives with autism and who has been found, for many years, to be “exceptional” within the meaning of the Education Act, RSO 1990, c. E.2 (the “Act” or the “Education Act”) and its Regulations.

[3] The Applicant and his spouse have advocated for their son within the public school system, since at least as early as 2018, maintaining that K.S. should be “placed” in a regular classroom with 1:1 support.

[4] There is a long history of conflict between the Applicant and school authorities over these issues. The decisions before us arise in that context, but our jurisdiction is confined to review of the decisions challenged before us, and not everything that has happened concerning the efforts of the Applicant and the responses of the Respondent over all the years that K.S. has been in the “system”. I summarize the history to provide context to understand the extent of the failure, primarily of the OSET, but also of the HRTO, to address and decide the Applicant’s claims. The TDSB also bears responsibility. Its strategy – unfortunately successful to this point – has been to deny that there is a path of effective conflict resolution for the Applicant.

The Impugned Decisions

[5] The Applicant applies for judicial review of (a) a decision of the Ontario Special Education Tribunal (the “OSET”) dated June 16, 2023, reported at 2023 ONSET 2, and (b) a decision of the Human Rights Tribunal of Ontario (the “HRTO”) dated February 23, 2024, reported at 2024 HRTO 274.[^2] The net result of these decisions is:

(a) K.S. was “identified” as “exceptional” and “placed” in a regular classroom in a TDSB high school on the basis of the OSET’s determination that such a placement was agreed between the parties. However, the Applicant’s agreement to this “placement” was predicated on K.S. receiving 1:1 support in the classroom and for other aspects of his participation in school life. The OSET found that 1:1 support is not part of K.S.’s “placement” but is a matter of “programs” or “services” provided to K.S., matters not within the jurisdiction of the OSET.

(b) The TDSB takes the position that it has a blanket practice of not providing 1:1 support for students within regular secondary school classrooms. The TDSB placed K.S. in a regular classroom in accordance with the OSET direction, but did not provide K.S. with 1:1 support.

(c) The Applicant then brought this application for judicial review of the OSET decision.

(d) The Applicant had disputed these issues previously before the OSET (leading to OSET decisions in 2019 and 2022) to the same effect: the OSET decided it had no jurisdiction to direct 1:1 support for K.S. as part of his placement. The Applicant commenced proceedings before the HRTO for failure to accommodate K.S. in the school system, but these proceedings were stayed pending completion of serial OSET proceedings.

(e) When OSET proceedings were dismissed for lack of jurisdiction, the HRTO complaints were revived and then dismissed summarily by the HRTO because the complaints had no reasonable prospect of success.

[6] The net result has been unsatisfactory. Whatever might be the appropriate disposition of K.S.’s claims, being placed in a regular classroom without the required supports for that placement, and without effective recourse for the resulting problems, is a failure of the system. The root causes of this systemic failure was clear in oral argument before us: none of HRTO, OSET and TDSB had a coherent account of how these processes ought to work as an overall framework to result in timely, efficient adjudication of important conflicts respecting special education of exceptional students in public school systems.

[7] The tribunals below, and this court on review of their decisions, are constrained by the statutory framework that applies to identifying exceptionalities, determining “placements” for exceptional students, and providing necessary supports to students within their placements. This statutory framework should be interpreted and applied in a manner that is faithful to the text of the statutory instruments to provide effective recourse for families of students such as K.S., while at the same time preserving the ability of school officials to manage their resources effectively to deliver quality educational services to all students at the school. For this to work effectively, parents and students must have effective recourse to challenge decisions which they dispute.

OSET’s Jurisdiction

[8] As explained below, the statutory scheme limits the authority of the OSET to deciding issues concerning identification and placement of exceptional students. The OSET does not have jurisdiction to determine the details of day-to-day supports provided to exceptional students in the placement that has been directed. On its face, this is an understandable limit on the jurisdiction of the OSET. A student’s support needs can be expected to change over time. Supports are a form of accommodation and need only be provided to the point of “undue hardship” given the Board’s human and financial resources and the needs and rights of other students in the school.

[9] As has happened in this case, it can be expected that situations will arise where students and/or their parents will disagree with decisions made by boards about the supports that will be provided to a particular exceptional student. The OSET has found that it does not have the jurisdiction to decide these disputes so long as they do not involve the “identification” and/or “placement” of exceptional students. That determination is in accordance with the statutory scheme. However, the OSET’s application of this principle rests on a very narrow understanding of the word “placement” that lacks support in the statutory scheme and provides no recourse to parents to challenge some of the most important decisions made regarding the education of exceptional students.

[10] So where does a parent or student turn, if they may not challenge a board’s decision before the OSET? Two possible answers spring to mind: (a) a complaint to the Human Rights Tribunal; or (b) an application for judicial review to this court. These avenues of recourse should inform the OSET’s analysis of its jurisdiction – an overall appreciation of the total scheme of conflict resolution, of which the OSET – a specialized tribunal intended to have expertise in matters of special education – is a core component.

[11] A “placement” is not merely a geographic location within a school building. The Education Act provides that a “placement” is within a “program”. Any reasonable functional understanding of a “program” must acknowledge that it is delivered by the provision of “services”. As the tribunal with primary responsibility for overseeing conflict-resolution of special education issues affecting individual exceptional students, it is for the OSET to develop functional definitions of “placement”, “programs” and “services” that provides robust and practical recourse before the OSET, rather than deflecting that responsibility to the HRTO or to this court. It has failed to do this, with the result that it has failed to properly understand its own jurisdiction.

[12] The word “placement” is not defined in the Education Act or its Regulations. Interpreting this word is not free from difficulty, as is explained in some detail below. The responsibility for developing the definition lies with the OSET at first instance. This will be an ongoing project for the OSET, and this court will not use the OSET’s failure in this case to rush in and supply its own comprehensive definition: to do that would be to fail to respect the Legislature’s choice to assign this task to the OSET.

HRTO’s Misuse of Its Summary Dismissal Process

[13] The Applicant pursued claims before the HRTO, while at the same time he was (repeatedly) also seeking relief from the OSET.

[14] The TDSB took inconsistent positions before the OSET and the HRTO. Before the OSET, it took the position that the tribunal had no jurisdiction to decide what (if any) supports would be provided to K.S. in his placement in a regular classroom. Before the HRTO, the TDSB took the position that the tribunal should decline jurisdiction because the issues were before the OSET.

[15] After the OSET agreed with the TDSB and found that it had no jurisdiction over the claim to 1:1 support in a regular classroom, the TDSB continued to argue before the HRTO that the case had been disposed of by the OSET and should be dismissed by the HRTO on that basis. The HRTO rejected that argument and concluded that the OSET had not decided the issue on the merits and directed that process before the HRTO should proceed.

[16] Then, on motion by the TDSB, the HRTO summarily dismissed the Applicant’s complaints on the basis that they had no reasonable prospect of success on their face. Quite frankly, this was an astonishing decision.

[17] The HRTO dismissal decision misapplied its own jurisprudence on summary dismissal, and mischaracterized and trivialized the Applicant’s complaints. In the net result, an issue the Applicant had been pursuing for many years – whether K.S. should receive 1:1 support in a regular classroom – was never decided on the merits by the OSET and was dismissed as unworthy of the adjudicative process at the HRTO.

[18] While I would not adjudicate the applicant’s claims at first instance, I would conclude that there is a very arguable case that (a) the OSET should have directed that 1:1 support in the regular classroom be provided as part of K.S.’s “placement” and (b) the HRTO should have concluded that the failure to provide 1:1 support to K.S. in the regular classroom failed to accommodate K.S.’s disability such that he could receive the publicly funded education to which he was entitled under the Education Act. There is no record available – given the early summary dismissal of the HRTO complaints – as to whether the denial of necessary accommodations to K.S. could be justified by the TDSB on the basis of “undue hardship”.

[19] The net result has been that the Applicant has been engaged in years of fruitless conflict with the TDSB without ever having had the issue in dispute decided on its merits, with the coup de grace being a decision from the HRTO trivializing the Applicant’s complaints.

[20] The question, for this court, is what to do for the Applicant about this unsatisfactory situation at this stage. Two issues that appear to require decision – which have yet to be decided – are as follows:

(i) Is the TDSB’s practice of not providing necessary 1:1 support for exceptional students in a regular classroom (a) lawful; and (b) an infringement of K.S.’s rights to be free from discrimination under the Human Rights Code, RSO 1990, c. H.19 ?

(ii) Did the TDSB discriminate against K.S. by failing to provide him with sufficient supports to enable K.S. to obtain the educational services to which he was entitled under the Education Act, and if so, whether the provision of adequate supports to K.S. would give rise to undue hardship within the meaning of the Human Rights Code?

[21] These are questions squarely within the purview and expertise of the HRTO. I would quash the impugned HRTO decision and remit the case back to the HRTO for a determination on the merits in accordance with these reasons.

[22] I would likewise quash the impugned OSET decision but see little point in remitting it to the OSET now – so many years after the fact. As explained below, the process of identification and placement of exceptional students takes place annually. I see little point in the OSET embarking on a process to decide a placement for K.S. for an academic year that has concluded.

[23] K.S. is still eligible for education in the public school system. If K.S. continues as a student in the TDSB, I would direct that any future processes to determine an appropriate placement for him be conducted in accordance with these reasons.

Jurisdiction and Standard of Review

[24] There is no appeal from the OSET Decision[^3] or from the HRTO Decision.[^4]

[25] This court has jurisdiction over these applications for judicial review pursuant to Judicial Review Procedure Act, RSO 1990, c. J.1, ss. 2, 6(1). The presumptive standard of review is reasonableness: Canada (Minister if Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.

[26] The presumption of a standard of reasonableness is rebutted where a standard of correctness is required by the rule of law. The Supreme Court in Vavilov identified three types of legal questions where the rule of law requires the correctness standard to apply: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding the jurisdictional boundaries between two or more statutory delegates.

[27] As I explain towards the end of these reasons, a range of decisions is made, annually, in respect to exceptional students. To the extent to which the OSET finds it does not have jurisdiction to hear an appeal over a disputed decision, jurisdiction to review the impugned decision would then lie in this court by way of judicial review or by way of a complaint to the HRTO: jurisdictional boundaries are directly in issue in this case.

Background History

[28] The Applicant is the father of K.S., who was diagnosed with autism spectrum disorder just before he turned five years old, in February 2011.

[29] K.S. is an “exceptional student” who requires special educational services. As a result, K.S. has been subject to the regime for “identifying”, “placing” and “supporting” him within the respondent school system.

[30] There is a long history of disagreement between the Applicant and the respondent School Board over K.S.’s “placement” and “supports” within the school system.[^5]

Prior Litigation

2019 OSET Decision

[31] By decision dated February 13, 2018, TDSB’s Identification, Placement, and Review Committee (“IPRC”) identified K.S. as “Communication Exceptionality: Autism” with a placement described as “Regular Class with Resource Assistance”. The TDSB accepted this identification and placement. The Applicant[^6] appealed.

[32] The issue on appeal was described by the OSET as follows (2019 ONSET 1, at paras. 13‑14):

Following a meeting held between the parties on December 17, 2018, the Appellants wrote to the Respondents on January 8, 2019, to request the following:

• Provision of a 1:1 assistant to support the student in his regular classroom setting for the whole morning period;

• Provision of a safety plan over the lunch period to protect him;

• Provision of resource assistance in the afternoons in the regular classroom by a qualified special education resource teacher, rather than providing resource assistance by withdrawal.

On January 20, 2019, the Respondent replied, confirming that it would comply with the Appellants’ request regarding placement by ensuring that, effective immediately, the student will receive resource assistance from a special education teacher in the regular classroom, rather than in a withdrawal arrangement. The Respondent declined to agree to the other two requests, stating that these did not relate to either identification or placement.

[33] The OSET found that the parties had agreed on identification (autism) and placement (Regular Class, or Regular Class with Resource Assistance). It concluded that, as a consequence, the OSET lacked jurisdiction over the appeal:

While the OSET’s jurisprudence also demonstrates that it will sometimes address the matter of special education programs and services as well as accommodations, as part of an order for a particular placement, where the OSET has no jurisdiction to make a placement order, it cannot make orders for programs and/or services.

In this instance, the Appellants have requested Regular Class placement. The IPRC in February, 2018, confirmed that the student’s placement will be Regular Class. (2019 ONSET 1, at paras. 27-28)

2022 OSET Decision

[34] On March 4, 2020, the SEAB upheld a decision of the IPRC dated December 19, 2019, identifying K.S. as an exceptional student with autism and “placing” K.S. in “regular class Placement with Resource Assistance.” The TDSB accepted this decision, and the Applicant appealed it to the OSET. On preliminary motion, the OSET found the appeal was moot and that the Applicant was challenging “services” rather than “placement”, putting the case outside the jurisdiction of the OSET:

Based on the Applicant’s submissions regarding the applicability of the Code, and her assertion that K.S. has been seeking appropriate services since 2017, but has still not received them, I conclude that the real issue between the parties appears to be the services being provided to the Appellant.

While the OSET has the jurisdiction to consider breaches of the Code when it considers questions which arise “in the course of a case properly before it” (Trachemontaigne), the services provided to the applicant is not a question properly before the OSET. This matter can be distinguished, for example, from a case where an Appellant asserts that a decision regarding his or her “identification” or “placement” was made for reasons which contravene the Code.

… The Act clearly states the limits of the jurisdiction of the OSET, and I concur with the decision in H.A., which states:

Where a respondent school board agrees to both the identification and placement sought by the parent, the parent or guardian has no right of appeal to OSET under the Act. In this case, the parents dissatisfaction is with programs and services and not the identification and/or placement cited in the Act.

While the OSET’s jurisprudence also demonstrates that it will sometimes address the matter of special education programs and services as well as accommodations, as part of an order for a particular placement, where the OSET has no jurisdiction to make a placement order, it cannot make orders for programs and/or services. (2022 ONSET 1, at paras. 42-44)

[35] The TDSB asked the OSET to find the Applicant to be a vexatious litigant, but the OSET declined to do so in 2022:

I am not persuaded that the applicant did not have a genuine or good faith belief that the applicant’s rights had been violated when this Application was filed… I am not persuaded that it was filed for an improper purpose…. This does not, however, preclude such a finding in the future.

… I decline to exercise my discretion to declare the Applicant a vexatious litigant. (2022 ONSET 1, at paras. 48-49)

Events Leading Up to the Application for Judicial Review of the Impugned OSET Decision

(a) IPRC Recommendation

[36] On June 9, 2022, the IPRC identified K.S. as “exceptional” as a person with autism, and recommended that K.S. be placed in a Special Education Class with “Partial Integration”.[^7] On June 19, 2022, the Applicant appealed this decision to the Special Education Appeal Board (“SEAB”).

(b) SEAB Recommendation

[37] A two-day SEAB hearing was conducted by ZOOM in October 2022.[^8] On November 7, 2022, SEAB issued its Report.

[38] The SEAB found that there were two issues before it:

(i) whether the SEAB had jurisdiction to hear the case?

(ii) what placement will protect K.S.’s best interests?[^9]

[39] The SEAB found it did have jurisdiction over the appeal, and that “placement” refers to “the educational program of the individual student and not the physical location where the educational program can be implemented.”[^10]

[40] The SEAB found that the TDSB had been “less than straightforward” when it came to correspondence it relied upon to establish that “placement” had been agreed between the TDSB and the Applicant.[^11] “The evidence as supported by material facts in reference to date/time does not support the claim by Mr Krish Chakraborty that the placement was agreed upon by the parents and TDSB.”[^12]

The SEAB then referenced the Ministry of Education Special Education Plan Standards set out in O. Reg. 306, which provides that “[e]very board shall maintain the special education plan in respect of the board and ensure that the special education plan is amended from time to time to meet the current needs of exceptional pupils of the board.”[^13] The SEAB then made the following findings:

It is our view that the TDSB Special Education Plan 2022-23 fails to list criteria for assigning intensive support for students with a great deal of assistance (sic). A lack of written, clear policy may result in arbitrary decision making which poses a disadvantage to students.

Instead, the TDSB, as claimed by the Respondent during the first and second hearings, has had a practice of not assigning 1:1 intensive support for students in regular classroom placements. This practice is neither based on a written policy of TDSB as per the recent/current TDSB Special Education Plan 2022-22 (sic), nor is it reflective of addressing “students who require a great deal of assistance”, which the Ministry of Education requires in a Special Education Plan and within the Regulation 191/98, section 17(1) and (2) and Regulation 306.

Further, the TDSB Special Education Plan does not mention that 1:1 support is not offered to students in Placements involving inclusion in Regular Class. This practice has significant implications for the range of Placements provided by the School Board as there are either strict or arbitrary limitations about the intensive support that may be provided.

Although K.S. has been in a Regular Class with Indirect Support at [the school] for more than two years now, he has not been able to access the curriculum through the accommodation that he needs…. There was no appropriate evaluation in place to support that K.S.’s learning needs can be fulfilled through a Placement Regular Class with Indirect Support.

As evidenced in his Report Cards, K.S. has not been successful at earning credits towards his secondary school diploma. It is clear that the supports currently being provided to him are not sufficient.[^14]

[41] The SEAB recommended that K.S. be placed in a “Regular Class with Resource Assistance” (placement in a regular class with specialized instruction individually or in a small group from a qualified special education teacher). SEAB strongly advised the full and effective use of all available resources. This included a valid and multidisciplinary assessment, appropriate planning, a provision of 1:1 support services for K.S. to facilitate direct instruction, and robust and direct progress tracking.[^15]

(c) TDSB Decision

[42] On December 12, 2022, the TDSB advised the Applicant that it had rejected the SEAB’s recommendation and would be placing K.S. in a “Regular Class with Withdrawal Assistance”.[^16] The TDSB provided no reasons for its decision.[^17] The Applicant appealed to the OSET on December 23, 2022.[^18]

(d) Impugned OSET Decision

[43] The TDSB asked the OSET to dismiss the Applicant’s appeal without a hearing on the merits on the basis that (a) the OSET lacked jurisdiction over the issues raised in the appeal; (b) the appeal failed to raise a prima facie ground of appeal; (c) the issues raised by the Applicant on the appeal had already been decided against the Applicant in prior OSET proceedings, and thus were precluded from re-litigation by the principles of res judicata and issue estoppel; and (d) the appeal was an abuse of process in all these circumstances. The TDSB also asked the OSET to declare the Applicant a vexatious litigant, and to preclude his bringing further appeals to the OSET without leave.

[44] By decision dated June 16, 2023, Adjudicator Bickley of the OSET dismissed the appeal as an abuse of process and declared the Applicant a vexatious litigant pursuant to r. A8.2 of the OSET’s Rules of Procedure (2023 ONSET 2).[^19]

[45] The Adjudicator characterized the proceedings before her as follows:

The Appellant and the Respondent have frequently disagreed about the appropriate placement and support for the Pupil. The Appellant’s consistent position has been that the Pupil requires 1:1 support. The Respondent disagrees. These differing views have led to two previous appeals to the Tribunal, both of which have been dismissed. (2023 ONSET 2, at para. 4)

[46] The Adjudicator analysed the issue as follows:

In this case, there is no dispute that the Pupil be placed in a Regular Class. The dispute is whether the placement should be with Resource Assistance or Withdrawal Assistance and, if with Resource Assistance, the nature of that assistance.

The Respondent’s Special Education Plan 2022-2023 includes four placement options for secondary school students:

• Regular Class with Indirect Support and Regular Class with Withdrawal Assistance

• Special Education Class with Partial Integration and Special Education Class Full Time

A placement of Regular Class with Resource Assistance is available at the elementary level but not at the secondary level.

The Tribunal cannot order a placement that does not exist. The Appellant alleges that the lack of this placement at the secondary level is a violation of the Human Rights Code. Indeed, as discussed further below, the Appellant has filed multiple applications with the Ontario Human Rights Tribunal (“HRTO”) based on this allegation. Those allegations are most appropriately dealt with by the HRTO.

Further, I agree with the Respondent’s submission that “the pith and substance of the issue under appeal is whether K.S. should receive 1:1 support in his regular class placement.”

The Respondent relies on the Tribunal’s jurisprudence in support of its position that the Tribunal “does not have the jurisdiction to order 1:1 support as the provision [of] programs and services is outside” the Tribunal’s mandate: W.R. v. Ottawa Catholic District School Board, 2008 ONSET 4. The Appellant does not point to any contrary jurisprudence.

[47] The Adjudicator dismissed the appeal and then went on to find that the Applicant is a vexatious litigant. In so finding, the Adjudicator relied on the two prior proceedings before the OSET (serial litigation respecting the same issue), and three applications brought before the HRTO. The Adjudicator found:

The Appellant has also made arguments before the HRTO in direct contradiction to his arguments before this Tribunal. In KS v. Toronto District School Board, 2022 HRTO 219, the Appellant argued that one of his HRTO applications should proceed because “the OSET can only address the identification and placement of an exceptional student, but it does not have the legislated mandate to address programming, services and accommodations”. He further argued before the HRTO “that since the applicant is looking for an adjudication of the services, supports and accommodations that he needs in order to have meaningful access to an education, which are outside the OSET’s jurisdiction, the [HRTO] needs to consider those issues at a hearing on the merits of the Application”

The Appellant cannot have it both ways. He cannot seek the same remedy before two different tribunals and argue before the first tribunal that it has jurisdiction to grant that remedy while arguing before the second tribunal that the first tribunal lacks that jurisdiction. (2023 ONSET 2, at paras. 39-40)

(e) Application for Judicial Review to this Court

[48] On July 14, 2023, the Applicant commenced this application for judicial review of the OSET Decision.

[49] This application came on for a hearing on the merits before this panel on October 21, 2024. After hearing much of the oral argument on the merits of this application, by our direction, the application was adjourned, to be returned before us together with the Applicant’s application for judicial review of the HRTO decision. Thus, oral argument on both applications for judicial review continued and was completed on March 5, 2025.

Events Leading up to the Application for Judicial Review of the HRTO Decisions

[50] The Applicant commenced three proceedings before the HRTO – the first in 2020 (HRTO File 2020-42344-I), and the second two in 2021 (HRTO File 2021-48020-I and HRTO File 2021-48019-I). In these proceedings, the Applicant alleged discrimination with respect to services provided by the respondent TDSB because of race, ethnic origin and disability, contrary to the Ontario Human Rights Code.

[51] The HRTO deferred consideration of the original application in light of the appeal pending before the OSET in 2020. That appeal was dismissed by OSET on January 22, 2021.

[52] The next day, January 23, 2021, the Applicant requested that his HRTO complaint be reactivated. In April 2021, the respondent TDSB consented to reactivation, but in submissions made August 17, 2021, opposed reactivation on the basis that the complaint should be dismissed because the subject matter of the complaint had been dealt with appropriately in the OSET proceeding.

[53] By decision dated November 17, 2021, Vice-Chair Gananathan of the HRTO reactivated the complaint and directed that TDSB’s request that the complaint be dismissed summarily be addressed at a preliminary hearing held by teleconference:

Under s. 43(2)1 of the Code, an application that is within the jurisdiction of the Tribunal must not be finally disposed of without allowing the parties an opportunity to make oral submissions. The Tribunal will schedule a preliminary hearing by teleconference to hear the parties’ submissions on whether the Application should be dismissed on the basis that the substance of the Application has been appropriately dealt with by the OSET in the appeal proceeding. (2021 HRTO 983, at para. 6)

[54] There is no explanation in the record as to why it took ten months to decide the reactivation request.

[55] The preliminary hearing was held on January 18, 2022. By decision dated February 23, 2022, Member Nichols of the HRTO found that the OSET decision did not adequately deal with the substance of the application before the HRTO, and that therefore the HRTO proceeding should continue to a hearing on the merits:

Section 45.1 of the Code allows the Tribunal to dismiss an application, in whole or in part, in accordance with its rules, if another proceeding has appropriately dealt with the substance of the alleged discrimination. While a hearing at the OSET meets the criteria for being considered a proceeding in law, as described above, the OSET’s mandate as set out in the Education Act is limited to the identification and placement of exceptional students.

Therefore, where an application to the Tribunal raises allegations related to the provision of or denial of services and accommodation of disabilities, it is necessary to review and consider the specifics of the allegations and of the OSET decision before concluding whether an appeal to the OSET has dealt appropriately with all aspects of the allegations raised in the Application to the Tribunal.

In this instance, the OSET Decision did not address the applicant’s programming, services and accommodation-based allegations and requests. Therefore I must find that the OSET proceeding did not appropriately or adequately deal with the substance of this Application. (2022 HRTO 219, at paras. 18-20)

[56] By decision dated February 23, 2024, Adjudicator Nichols summarily dismissed the Applicant’s three human rights complaints as having no reasonable prospect of success (2024 HRTO 274).

Impugned HRTO Decision

[57] As explained below, I place primary responsibility on the OSET for failing to properly identify its jurisdiction and address and decide conflicts squarely within its mandate. This conclusion rests on my finding that the OSET has not properly defined the word “placement” in the scheme of the applicable statutory provisions: in other words, I have concluded that the OSET has erred in law, and unduly restricted its mandate, leaving important claims with no reasonable access to a conflict resolution process.

[58] My concerns with the HRTO’s role in this case is somewhat more troubling, though it seems a case-specific concern rather than a systemic one.

[59] By the time these matters reached the HRTO for a decision on the merits, the OSET had decided, three times, that it did not have jurisdiction to decide the Applicant’s claim that K.S. needed and was entitled to 1:1 support in a Regular Class. The HRTO had found that this decision did not decide the questions raised before the HRTO by the Applicant (a procedural decision that is undoubtedly correct), and the HRTO had directed that the Applicant’s claims proceed to a hearing.

[60] The HRTO dismissed the Applicant’s complaints summarily, on the basis that there was no reasonable prospect of success:

… as K.S. attended secondary school, he was offered access to special education supports, which were again refused by his parents, on the grounds that they did not meet parental expectations and wishes. (para. 4)

The parents appealed K.S.’s placement in accordance with Regulation 181 under the Education Act, but ultimately did not receive access to what they wanted, namely the direction of having K.S. placed in a regular classroom, with full-time 1:1 support from an appropriately qualified educational assistant….

In this instance the applicant’s representative focused on her assertions about the respondent’s obligation to provide the minor applicant with the placement, services and supports the parents wished for, and that the denial of that specific placement amounted to a breach of the Code….

Regarding the allegations related to the assertions that K.S. was denied meaningful access to an education, the applicant’s submissions, as presented by counsel, focused on the fact that the offer of special education and supports in an appropriate special education placement were consistently rejected by the parents of K.S. (para. 53)

Both parties confirmed that K.S. was offered a placement in an appropriately designated special education class, where he could have had access to the requested autism-specific services and supports, but these were rejected by his parents. (para. 55)

… the search for accommodations in a school setting are not about the search for the ideal sought by parents or their representative, but about providing a meaningful access to an education for a student…. (para. 55)

The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred…. (para. 57)

… the allegations are based in the applicants’ belief that their son’s special education needs could only be met satisfactorily if it was provided entirely and exclusively in the way and by the process they preferred, rather than in accordance with the appropriate legislation, the respondent’s special education plan and their son’s identified needs. (para. 59)

[61] These findings were not based on an evidentiary record, but on the complaints filed (which are assumed to be true for the purposes of a summary hearing), and submissions made during the summary hearing. No reference is made to the SEAB Report (which was released in November 2022 and was in the HRTO Record) – which provides a clear, well-reasoned analysis of the factual and legal basis for the Applicant’s claims. No reference is made to the statements in the OSET decisions finding that the Applicant’s claims are properly for the HRTO to decide rather than the OSET.

[62] On July 14, 2023, the Applicant commenced this application for judicial review of the HRTO summary dismissal Decision.

Statutory Framework

(i) General Framework: the Education Act

[63] The Education Act provides for appropriate special education programs and special education services to be provided to students defined as exceptional. Subsection 1(1) of the Education Act defines “exceptional pupil” as follows:

“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[^20] by a committee, established under subparagraph iii of paragraph 5 of subsection 11(1), of the board,

(a) of which the pupil is a resident pupil,

(b) that admits or enrols the pupil other than pursuant to an agreement with another board for the provision of education, or

(c) to which the cost of education in respect of the pupil is payable by the Minister;

[64] There is no definition of “placement” or “special education placement” in the Act. “Special education programs” and “special education services” are defined in s. 1(1) of the Act as follows:

“special education program” means, in respect of an exceptional pupil, an educational program that is based on and modified by the results of continuous assessment and evaluation and that includes a plan containing specific objectives and an outline of educational services that meets the needs of the exceptional pupil;

“special education services” means facilities and resources, including support personnel and equipment, necessary for developing and implementing a special education program;

[65] Subsection 8(3) of the Act provides:

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.

[66] Subsection 11(1) of the Act provides:

Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations in respect of schools or classes established under this Act…

5. governing the provision, establishment, organization and administration of,

i. special education programs,

ii. special education services, and

iii. committees to identify exceptional pupils and to make and review placements of exceptional pupils.

[67] Thus, the Minister shall “ensure” that exceptional children, such as K.S., “have available… appropriate special education programs and special education services.”

[68] There is no definition in the Act for the term “placement” of exceptional students. From the definition of “exceptional student” it is clear that “placement” of an “exceptional student” is “in a special education program”. By definition, quoted above, “special education services” are provided within “special education programs” into which “exceptional students” are “placed” – a “special education program” includes an “outline of special education services”. While the precise meaning of “placement” is undefined in the statutory scheme, it is clear from the Act – which is the controlling instrument – that “placement” is not a hermetically distinct concept from “programs” and “services” – “placements” are in “programs” through which “services” are delivered – and the Minister’s obligation – set out in the Act – is to “ensure” that “appropriate… special education programs and special education services” are “available” to “exceptional students”. Put another way, the concepts of “placement”, “programs” and “services” are more akin to nesting dolls than distinct and separate categories.

[69] This reading is reinforced by the terms of s. 8(3). It provides that “exceptional students” are entitled to appropriate special education “programs” and “services” and requires the Minister to provide an appeal of “the appropriateness of the special education placement.” The word “placement” here can only refer to the appropriate “programs” and “services” the Minister is to ensure are available for “exceptional students”.

[70] On any reasonable reading of these Education Act provisions, “placement” includes both “programs” and “services”.

(ii) O. Reg. 181/98: Identification and Placement of Exceptional Pupils

[71] Ontario Regulation 181/98 creates “special education identification, placement and review committees”, commonly known as “IPRCs”.

[72] O. Reg. 181/98 refers to “placement decisions” (ss. 6, 20, 25, 31). Where a pupil is identified as “exceptional” and a “special education placement” is “implemented” by the school board for that student, the Regulation provides that an “individual education plan” is to be developed for the student (an “IEP”). Subsection 6(3) of the Regulation provides that the IEP “must include,”

(a) specific educational expectations for the pupil;

(b) an outline of the special education program and services to be received by the pupil; and

(c) a statement of the methods by which the pupil’s progress will be reviewed.

[73] Subsection 6(6) of the Regulation provides that the school principal is responsible for “developing” the IEP, during the course of which they “shall”

(a) consult with the parent and, where the pupil is 16 years of age or older, the pupil; and

(b) take into consideration any recommendations made by the committee [the IPRC] or the Special Education Tribunal, as the case may be, regarding special education programs or special education services.

[74] Subsection 6(8) of the Regulation provides that within 30 school days after placement of the pupil in the program, the principal shall ensure that the plan is completed and a copy of it sent to a parent of the pupil and, where the pupil is 16 years of age or older, the pupil. Section 9 of the Regulation provides:

(1) In accordance with requirements under the Education Act, no pupil is to be denied an education program pending a meeting or decision under this Regulation.

(2) Where an education program is provided to a pupil pending a meeting or decision under this Regulation,

(a) the program must be appropriate to the pupil’s apparent strengths and needs;

(b) the placement for the program must be consistent with the principles underlying section 17; and

(c) appropriate education services must be provided to meet the pupil’s apparent needs.

[75] Section 16 of the Regulation provides:

(1) The committee may discuss any proposal for special education services or special education programs and shall do so at the request of a parent or a pupil who is 16 years of age or older.

(2) The committee may make recommendations regarding special education programs and special education services.

(4) Despite subsections (1) to (3), the committee shall not make decisions about special education services or special education programs.

[76] Section 17 of the Regulation provides:

(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.

(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.

[77] Subsection 20(1) of the Regulation provides:

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.

[78] Subsection 26(1) of the Regulation provides for appeals to a SEAB in respect of:

(a) a committee decision under Part IV or V that the pupil is an exceptional pupil;

(b) a committee decision under Part IV or V that the pupil is not an exceptional pupil; or

(c) a committee decision under Part IV or V on placement of the pupil.

[79] Subsection 28(6) of the Regulation provides:

Where the special education appeal board is satisfied that the opinions, views and information that bear on the appeal have been sufficiently presented to it, the special education appeal board shall end the meeting and, within three days of ending the meeting, shall,

(a) agree with the committee and recommend that its decisions be implemented; or

(b) disagree with the committee and make a recommendation to the board about the pupil’s identification, placement or both.

[80] Section 30 of the Regulation provides:

(1) Within 30 days of receiving the special education appeal board’s written statement, the board shall consider the special education appeal board’s recommendations, shall decide what action to take with respect to the pupil and shall give notice in writing of the decision to each of the persons described in subsection 29(1).

(2) In deciding what action to take with respect to a pupil, the board is not limited to the actions that the special education appeal board recommended or could have recommended.

(3) Notice to a parent under subsection (1) shall include an explanation of the further right of appeal provided by section 57 of the Act.

[81] Section 57 of the Education Act establishes the OSET. Subsections (3) to (5) of the Act provide:

(3) Where a parent or guardian of a pupil has exhausted all rights of appeal under the regulations in respect of the identification or placement of the pupil as an exceptional pupil and is dissatisfied with the decision in respect of the identification or placement, the parent or guardian may appeal to a Special Education Tribunal for a hearing in respect of the identification or placement.

(4) The Special Education Tribunal shall hear the appeal and may,

(a) dismiss the appeal; or

(b) grant the appeal and make such order as it considers necessary with respect to the identification or placement.

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

[82] The interpretive difficulty in this case arises from the language of s. 16(1) which provides that the IPRC shall not make decisions about special education services or special education programs. Parents are entitled to put program and service issues before the IPRC, and the IPRC may make recommendations about them, but the IPRC may not decide such issues.

[83] This language invites a categorical distinction of “placement” from “programs” and “services”, since “placement” may be decided and “programs and services” may not be. However, the interpretive task must take as its starting point the Act, not the Regulation, since the Regulation is subordinate legislation to the Act: Toronto District School Board v. Ontario, 2021 ONSC 4348 (Div. Ct.). “Placement” is in a “program” in which “services” are delivered; “programs” and “services” that are fundamental to the “placement” would thus seem to be part of an exceptional student’s “placement”.

Analysis

(i) No Fact-finding Below

[84] The Applicant has maintained that K.S. should be in a regular class, with 1:1 support, throughout K.S.’s time in high school. The TDSB has maintained either that K.S. should be in a Special Education Classroom or in a regular class without 1:1 support (but with some other supports). The TDSB prevailed in its position annually to the fall of 2021, when events took place leading to the impugned OSET decision.

[85] The TDSB has consistently maintained that the Applicant had rights of appeal to the OSET in respect to identification (which has not been in issue) and placement (the meaning of which is disputed), but not in respect to programs or services. The TDSB maintains that programs and services are identified by the principal in an IEP and are not subject to appeal to the OSET.

[86] In oral argument, counsel for the TDSB argued that two routes were available to the Applicant to challenge a principal’s decision respecting services or programs: an application to the HRTO, or an application for judicial review to this court from the principal’s decision.

[87] The TDSB argued this position to the HRTO before the OSET, and the OSET agreed that appropriate recourse for a parent challenging a decision respecting programs or services was to the HRTO. Before the HRTO, the TDSB argued that the Applicant’s challenge to the HRTO was unworthy of the adjudicative process and should be dismissed summarily. The HRTO agreed.

[88] In the result, the Applicant has had a principled objection to the services and programs provided to K.S., as an exceptional student, throughout K.S.’s years in high school. The Applicant argues, in effect, that the suite of supports needed by K.S. are properly understood as a “placement” of K.S. in a regular classroom with 1:1 support.

[89] Multiple decisions have been rendered against the Applicant, but only one is before us, or available in the record before us, that results from a contested record before the tribunal and a principled analysis of the facts of K.S.’s case and the applicable law. That decision is the SEAB Report.

[90] Adjudicative decisions, on the merits, involve both fact-finding and identification and application of applicable legal principles. This court defers to fact-finding and does not engage in the fact-finding process at first instance.

[91] The SEAB Report is in the record before us but is not part of the record of proceedings before the OSET: the OSET appeal is supposed to be a de novo hearing.

[92] Thus, we have – in effect – no findings of fact before us. We do have the SEAB Report to show what findings of fact could be made on a record and with argument on the merits.

(ii) Inadequate Statement of Principles by the OSET

a. The OSET’s Legal Analysis

[93] OSET jurisprudence has developed a “bright white line” between “placement” and “programs” and “services”, “placement” being within the OSET’s jurisdiction and “programs and services” being outside it. This distinction can be traced back in the jurisprudence to the following passage from the 2008 OSET decision (W.F. v. Ottawa Catholic District School Board, 2008 ONSET 4 [paragraphs unnumbered in original]):

Placement, which is not defined in the Education Act, is intertwined with programs and services. Therefore, when parents are in disagreement with placement, it is important that they state the grounds for their dissatisfaction clearly and specify the remedy that they are seeking. However, when the parents’ dissatisfaction is primarily or exclusively focused on such matters as programming, services, class size, the provision of educational assistant support, staff qualifications, and so on, parents cannot expect the Tribunal to issue orders on these, because it does not have jurisdiction to do so. In L & Conseil des écoles catholiques de langue française du Centre-Est de l'Ontario, 2004 ONTED 1, cited by both parties, the Tribunal stated (among other things) that it did not have the jurisdiction to direct school boards to hire staff with specific qualifications, experience or expertise. The Tribunal has not changed its position on this matter.

The Tribunal finds that the dispute between the parties is not about the placement decision itself, but about the details of the child’s programming within that placement.

What is apparent from the quoted passage is that the OSET draws a distinction between “placement” and “details of programming within that placement.” What is not apparent from the passage is how one distinguishes these two categories.

[94] W.F. cites the 2004 decision in L., for the proposition that ONSET does “not have the jurisdiction to direct school boards to hire staff with specific qualifications, experience or expertise.” I am at a loss to locate that statement of principle in the L. decision, and the principles stated in L. tend in a different direction. Rather, the OSET found, in L.:

… the Tribunal has the legislative authority to order the Board to place a child in an appropriate placement even though that placement does not exist within the Board’s plan…. (2004 ONSET 1)[^21]

It would seem implicit in the OSET’s authority to order a placement not offered by a Board that such an order could require a Board to provide staff with specific qualifications and could also require a Board to expend other resources to provide the required placement. There is no statement of principle to the contrary in the L. decision.

[95] The meaning of “placement”, in L., is traced back to B. v. North York Board of Education, 1984 ONSET 3, at pp 11-12:

In determining what placement involves, the following matters are considered:

(a) The identification process required under Ontario Regulation 554/81 [now 181/98] will by its process clarify and indicate the pupil requirements or needs;

(b) Appropriate placement must by logical extension in some way answer, provide, or meet the pupil requirements or needs. When determining appropriate placement, therefore, one must decide what factors are required to meet the needs of the pupil;

(c) In order to arrive at an appropriate definition of placement, for a particular exceptional pupil, the location, philosophy of education, objectives for the pupil, curriculum or program of students, are factors which may be considered

If the OSET is required to “decide what factors are required to meet the needs of the pupil” in order to decide “placement”, it would seem that the OSET must consider “details of programming within that placement” that are necessary to meet a student’s needs. On the other hand, it cannot be that every detail of all services and programming provided to an exceptional student are inherent in that student’s “placement”.

[96] W.F. does draw the distinction relied on by the OSET in the impugned decision, but the jurisprudential basis for the principle stated in W.F. appears to be illusory.

b. Failure to Define “Placement”

[97] As both sides acknowledged before us, the term “placement is a key term in the Act and Regulations but is nowhere defined. OSET’s understanding of “placement” is central to the OSET’s conclusion that it had no jurisdiction over the Applicant’s appeal, and yet nowhere does the OSET provide its own definition of this concept.

[98] I noted in my analysis of the relevant provisions of the Act that “placement”, “program” and “service” are not hermetically sealed concepts, unrelated to each other. The Regulation appears to treat these concepts as entirely distinct (one may appeal “placement” but not “programs” or “services”), but the Regulation is subordinate to the Act and must be read in harmony with it.

[99] The OSET has failed to establish a workable definition of the key operative term establishing its jurisdiction and mandate. While the interpretive exercise is not without difficulty, it must be done, and the OSET is the body charged with doing it.

[100] The OSET’s failure is fundamental to its task. As noted persuasively in the SEAB Report, placement cannot mean merely the geographic place where the exceptional student receives programs and services (a regular class or a special education class). It must include some overall bundle of programming and services. This conclusion flows directly from the Act itself: “placement” is in a “program” in which “services” are provided.

[101] On the other hand, the limitation on the OSET’s jurisdiction makes it clear that the Regulation contemplates that not every aspect of programming and service-provision should be considered part of a student’s “placement” subject to appeal. Principals are charged with managing their schools. The school environment is a dynamic place, and exceptional students do not, themselves, exist in a static state.

[102] What is required, therefore, is a functional understanding of “placement”, as it is used in the Act, to interpret the limitations on the OSET’s jurisdiction in the Regulation, so that it is the final arbiter of the parameters of an exceptional student’s placement (not just the physical space in which they will receive programs and services), while leaving it to principals to address the finer details of programming and services – details that may change as a student’s circumstances and needs change over time.

[103] One may expect that jurisprudence will develop over time as to where the boundary is between aspects of programming and services that are encompassed in a “placement”, and those which are not, and one would expect that these concepts would be applied in a context-specific manner: the scheme of the Act and the Regulations recognize that “one size” does not “fit all”.

c. Inconsistent and Confusing Understandings of “Placement”

[104] These interpretive challenges are illustrated by the concepts of “placement” that are used by the IPRC, the SEAB, the OSET and the TDSB itself. The February 2018 IPRC recommended placement was “Regular Class with Resource Assistance”. The OSET decision arising from this recommendation referred to the placement as “Regular Class” (although once it also added the words “with Resource Assistance”). The 2020 SEAB recommendation was for ““regular class Placement with Resource Assistance.” The 2020 IPRC recommendation was for “Special Education Class with ‘Partial Integration’”.

[105] In the SEAB Report (SEAB’s 2022 recommendations), it sets out the “placements” offered by the TDSB in its 2022-23 Special Education Plan:

• Regular Class with Indirect Support

• Regular Class with Withdrawal Assistance

• Special Education Class with Partial Integration

• Special Education Class Full Time

[106] As is set out in TDSB’s 2022-23 Special Education Plan, “Special Education Class” comes with a suite of “programs” and “services” (such as a properly qualified Special Education Teacher). “Indirect Support” and “Withdrawal Assistance” are “programs” where “services” are provided that are, likewise, generally defined in the SEP.

[107] What emerges from the decisions made, and the TDSB SEP, is that the board, the IPRC, and the SEAB, all understand that the decision of where, geographically, a student will receive programs and services, is made while also identifying programs and services that will be provided to the student. “Placing” a student in a particular geographic location without providing necessary “programs” and “supports” would be a critical failure for that student, and a failure to execute the Minister’s duty set out in s. 8(3) of the Act.

[108] The decision whether a student will be in a “regular classroom” or a “special education classroom” is an important one. It can be a point of serious disagreement between a board and the family of an exceptional student. But limiting the OSET’s jurisdiction over placement to this binary choice eliminates from the OSET’s jurisdiction a broad range of important disagreements that need to be resolved, and fails to take account of the functional understanding of “placement” used by the IPRC, the SEAB and the TDSB or the meaning of “placement” in the Act.

[109] The OSET has recognized this dilemma to some extent. In its 2019 decision respecting K.S., it stated (2019 ONSET 1, at para. 27):

While the OSET’s jurisprudence also demonstrates that it will sometimes address the matter of special education programs and services as well as accommodations, as part of an order for a particular placement, where the OSET has no jurisdiction to make a placement order, it cannot make orders for programs and/or services.

Thus, if K.S. had been “placed” in a Special Education Class, the OSET could have ordered he be placed in the Regular Classroom with 1:1 support (assuming this support was available in a regular classroom setting, in the judgment of the OSET, and that it was necessary to meet K.S.’s needs, also in the judgment of the OSET).

[110] The OSET was correct in finding, in 2019, that it would have jurisdiction to order programs and/or services as part of its exercise of jurisdiction over placement. In so finding, by necessary implication, the OSET correctly understood that placements are “in programs”, and “programs” involve delivery of “services”. Where the OSET erred was in failing to include this understanding in its functional definition of “placement” when construing its jurisdiction.

[111] I would also note that the OSET has, in past cases, described “placements” as more than the geographic location in which programs and services are delivered: see, for example, C.S. v. Halton Catholic District School Board, 2010 ONSET 1, at para. 190, where the placement ordered by the ONSET was “Regular Class with Withdrawal Assistance” and not just “Regular Class”. The OSET has previously found that “dissatisfaction about the service or program may well result in dissatisfaction with placement” (2020 ONSET 1, at para. 28), a case in which the OSET wrestled with whether a particular service was required for a student’s placement.

d. Are OSET’s Placement Orders Limited to the Placements Offered by the TDSB?

[112] The OSET found that placement in a regular class with 1:1 support was not available for K.S. because it was not a placement offered by the TDSB in its 2022-23 SEP. It offered no legal analysis for this conclusion.

[113] The SEAB came to a contrary conclusion. As quoted above, it found that the TDSB has a “practice” of not providing 1:1 support in regular classes in secondary school, but that its SEP was silent on the point.

[114] As a matter of fact-finding, it is not at all clear that the TDBS 2022-23 SEP precludes placement of an exceptional student in a secondary school class with 1:1 assistance. At p. 213 of the 2022-23 SEP, students with autism within the TDSB (from kindergarten to grade 12) may be in regular class placements with “Withdrawal”, “Resource” or “Indirect Support”. “Resource” support is where “[t]he student attends a regular class and receives direct, specialized instruction, individually or in a small group from a special education teacher within the regular classroom.” TDSB relies on language set out at p. 180 of the 2022-23 SEP, where explicit mention is made of “support delivered through resource assistance” in regular classes in elementary schools, but no such mention is made in respect to secondary schools. This argument does not seem justified by the referenced language, and did not persuade the SEAB. The language actually used (which should be read in light with the general provision that resource assistance is available in regular classes for children with autism from kindergarten through grade 12) is as follows:

In most cases, appropriate accommodation will be accommodation in the regular classroom with support. However, every student with a disability is unique. To provide appropriate accommodation to all students with disabilities, education providers must, with the assistance of parental input, assess each student’s particular strengths and needs, and consider these against a full range of placements, programs and services. Ultimately, appropriate accommodation will be decided on an individual basis.

It is hard to understand how this language could be found to exclude 1:1 support with a child with autism in a regular class.

[115] The OSET’s jurisprudence on this point is to the contrary: as quoted above from the L decision, the OSET has previously found that it can order “the Board to place a child in an appropriate placement even though that placement does not exist within the Board’s plan…. (2004 ONSET 1). In the instant case, the OSET stated:

A placement of Regular Class with Resource Assistance is available at the elementary level but not at the secondary level.

The Tribunal cannot order a placement that does not exist. The Appellant alleges that the lack of this placement at the secondary level is a violation of the Human Rights Code. Indeed, as discussed further below, the Appellant has filed multiple applications with the Ontario Human Rights Tribunal (“HRTO”) based on this allegation. Those allegations are most appropriately dealt with by the HRTO.

[116] No authority is offered for the conclusion that the OSET cannot order a placement “that does not exist” in the TDSB’s SEP. That finding is contrary to the OSET’s prior jurisprudence (see, for example, M.S. v. Ottawa District School Board, 2011 ONSET 4, at paras. 135-136). It also renders the definition of “placement” relied upon by the OSET as one devised by the school board; that cannot be right: “placement” is a term in the Education Act, and its definition is not subject to the plans and policies of school boards. Indeed, by this logic, 1:1 support in a regular class is a “placement” in elementary schools – but not in secondary schools – not because of a substantive decision by OSET, or the language of the Act or the Regulations, but because of a choice made by the TDSB.

[117] The OSET’s earlier decisions denying jurisdiction rested entirely on the distinction between “placement” and “programs and services”. No legal justification is provided by the OSET for its conclusion that “placements” are limited to those a board chooses to offer. The OSET is correct in finding that the HRTO could deal with this issue but provides no explanation as to why such a question – which lies at the core of special education of exceptional students – should not be made by the OSET – the specialized tribunal established to decide special education placement issues.

(ii) Routes of Appeal and Review Must Be Clear to Parents

[118] The SEAB, the OSET and the school board itself, should be clear and consistent with parents about their rights of recourse from decisions with which they disagree. These are public bodies, with important decision-making authority. Parents are often self-represented, and where they are not, the costs of unwieldy litigation are not easily managed by many parents: routes of appeal or review should be clear, and parents should be advised of them.

[119] I appreciate that an overly litigious approach to disputes over special education would be undesirable. A focus on consultation and cooperative decision-making is inherent in the IPRC and IEP processes.

[120] Not all situations, however, will be resolved through consultation and cooperation, and where that happens, decisions must be made. As reflected in the Regulations, these are time-sensitive and recurring processes: the parties cannot be disputing issues for years while an exceptional student’s future lies in the balance.

[121] As reflected in the SEAB Report, the Applicant had a good, arguable case that K.S. needed to be in a regular class, and that K.S. needed 1:1 support in the classroom. Apart from the SEAB Report, which was rejected by the board, no principled decision on the merits has been provided to the Applicant explaining why K.S. was not provided with the 1:1 support he needed in the regular classroom. And no practical avenue was explained to the Applicant as to how he could challenge the decisions made not to provide K.S. with the support he needed to secure an education in a regular classroom. This has been a profound failure of justice, and responsibility for it lies with the OSET (for failing to identify the issue as within its jurisdiction and then to decide it), with the TDSB by taking positions that, in sum, would deny the Applicant the opportunity of having his claim decided on the merits, and with the HRTO for wrongly dismissing the Applicant’s claims as unworthy of the adjudicative process.

[122] Routes of appeal and review may also assist the OSET in deciding the question of what is included in a “placement” and what is a program or service that is not included in a student’s “placement”. The OSET is supposed to be a specialized tribunal that provides the final word on issues respecting an exceptional student’s identification and placement. Construing “placement” so narrowly as to exclude all consideration of how the placement may work for a student would have the effect of allocating review or appeal responsibility for making crucial special education decisions to the HRTO and/or to this court. It should surely be a matter of common sense that the OSET, as a specialized tribunal, should be better equipped to deal with an issue, for example, of whether provision of 1:1 support in a regular class is integral to an exceptional student’s placement in the regular class.

(iii) The Role of the HRTO in Special Education Disputes

[123] I conclude that the OSET should have taken jurisdiction over the Applicant’s appeal and decided it on the merits. Whatever practical, functional definition may be developed by the OSET for the term “placement”, it would have to include the position advanced by the Applicant in this case: it would be for the OSET to decide that claim on the merits, but if it found the facts to be as the SEAB Report found them, then the Applicant might well succeed in the OSET appeal.

[124] This said, the summary dismissal of the Applicant’s human rights complaint in this case was nothing short of shocking. The Applicant’s position – set out in detail in his Complaint to the HRTO – was that K.S. needed placement in a Regular Class with 1:1 support. He alleged that this had been denied to K.S. by the board, with a resulting failure to provide “appropriate” special education programs and services to K.S., denying him his right to receive an education by reason of his disabilities.

[125] The HRTO trivialized this claim, on summary disposition, as based solely on parental preferences, and found, without an evidentiary record, that the services and programs offered to K.S. by the board were suitable and appropriate. One need only read the SEAB Report to see that the Applicant’s allegations were at least arguable. One need only read the OSET Decision to see that the TDSB and the OSET had concluded that the proper place for the dispute to be decided was the HRTO.

[126] The trivialization of the Applicant’s allegations was then followed by a misapplication of the HRTO’s summary disposition jurisprudence. There is a range of cases, disposed of by the HRTO (including cases upheld by this court) where a claimant was alleging unfair, or even unlawful treatment, without providing a nexus between that treatment and a protected ground under the Human Rights Code. That line of cases had no application to this matter. Here, the claims asserted by the Applicant were based on a denial of support to address K.S.’s disabilities: a ground protected under the Code. The legal argument for the Applicant was quite straightforward: K.S. was entitled to receive an education from the TDSB, and as a result of the TDSB’s failure to accommodate K.S.’s disabilities, K.S. was denied the education to which he was entitled. The TDSB’s motives had nothing to do with the claim: the TDSB was required to accommodate K.S.’s disabilities to the point of undue hardship, and the human rights claims allege that it did not.

[127] It is clear that the OSET’s jurisdiction is limited to questions of identification and placement. However the OSET may come to understand the boundaries of this jurisdiction, there will remain decisions made about programs and services for exceptional students that are not within the OSET’s jurisdiction. As the HRTO has, itself, found, these questions could form a claim before the HRTO (Schafer v. Toronto District School Board, 2009 HRTO 785, at paras. 35‑40):

[35] In the current situation, the applicant does not challenge the identification of his exceptionality as learning disabled and language impaired. Nor does he challenge his placement in a regular classroom with specific identified supports. Rather, he is asserting either that the identified supports were not reflected in the Individual Education Plan used by the respondent and/or were not actually delivered by the respondent such that, practically speaking, he experienced discrimination.

[36] I specifically questioned the respondent whether the applicant has a right, under the Education Act, to appeal the supports identified in the Individual Education Plan or to appeal whether the supports set out in either the IEP or the IRPC were actually being delivered by the respondent. The respondent stated that the applicant had no right to appeal those matters.

[39] In my view, in light of factual disputes before me, some of which fall clearly within my jurisdiction and which are inextricably linked to the facts which may or may not fall within the jurisdiction of the SET, I am satisfied that I have the jurisdiction to undertake the factual inquiry to determine whether the applicant’s rights have been infringed under the Code.

[40] If, after hearing the evidence and argument, the applicant asserts facts or arguments that could have been appealed to the SET, nothing in this decision is intended to preclude the respondent from arguing that those factual determinations or issues fall within the exclusive jurisdiction of the SET.

[128] The claims asserted by the Applicant in this case are clearly arguable. On the logic in Schafer, those claims “fall clearly within [the HRTO’s] jurisdiction.” The facts alleged in the complaint – if established as true – would ground a finding that the TDSB discriminated against K.S. The HRTO summary dismissal decision to the contrary is unreasonable.

(iv) Reviewable Decisions and the Principle of Prematurity

(a) General Principles

[129] As may be seen from this case, the structure of dispute resolution of special education issues is somewhat opaque. It should not be.

[130] As the Supreme Court of Canada has found in Yatar v. TD Meloche Monnex, 2024 SCC 8, 489 DLR (4th) 191, at paras. 45-50, subject to the court’s discretion, judicial review is always available to guarantee the principle of legality is observed in decision-making processes.

[131] As is well-established in administrative law, there are circumstances in which a reviewing court may decline to exercise its jurisdiction to entertain judicial review. Two such circumstances are germane to this case:

(a) This court may decline to entertain an application for judicial review where the Legislature has established an alternative dispute-resolution process: Vavilov, at paras. 51-61; and

(b) This court may decline jurisdiction where the administrative decision-making process is not yet complete, on the basis of the principle of “prematurity”: Pleasant View Protection Corp. v. Niagara Escarpment Commission, 2025 ONSC 3426 (Div. Ct.), at paras. 13-15 and the cases cited therein.

[132] Analogous principles apply at the HRTO by reason of Human Right Code, s. 45.1:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[133] Where the Legislature has established another administrative process, the HRTO may decline jurisdiction in favour of that other process: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 SCR 107, at paras. 75 et seq. Where a dispute is before another administrative tribunal, the HRTO may await the completion of that tribunal’s process before deciding whether to entertain an application addressing the same issues: see, for example, Gabbidon v. Reconnect Health Services, 2025 HRTO 87.

[134] In the context of special education, having a clear understanding of the overall process – from the start of the process to its completion – is fundamental to this court and the HRTO understanding when a special education conflict resolution process is complete. And, of course, the parties must also understand how the process works, and when they should have recourse to the HRTO, or to this court, because the administrative process has been completed and they are still aggrieved.

[135] Finally, it is undesirable to have bifurcated processes – so that appeals and reviews go to one place for certain issues, and another place for other related issues. Multiple lines of appeal and review can lead to confusion, duplication of fact-finding, inconsistent results, and, of course, expense and delay.

(b) Application of these Principles in the Context of Special Education

[136] As may be seen from my above review of the statutory and regulatory framework, there are multiple processes and multiple decisions that may take place in respect to an exceptional student. First there is the IPRC process. If, at the end of that process, a parent is dissatisfied, they may bring the issues to the SEAB. The SEAB’s decision is, however, a “recommendation” to the school board, which may, or may not, accept it. The school board then “decides” the question – in the instant case, the “placement” for K.S.

[137] If the student’s parent disputes the school board’s decision on “placement”, an appeal lies to the OSET, which may decide the issue of “placement”, but which may not decide issues of “programs” or “services”.

[138] Once the “placement” is established, it is then for the Principal to establish the IEP, which includes details of programs and/or services.

[139] There is no right of appeal from the decision of the school board, aside from the limited right of appeal to the OSET. There is no right of appeal from the decision of the OSET. There is no right of appeal from a Principal’s decision respecting an IEP.

[140] These processes are undertaken on an annual basis for exceptional students. The decisions that result are supposed to apply to the upcoming academic year.

[141] To this list could be added the TDSB’s SEP. If, as found by the OSET, that tribunal is limited to placements set out in the SEP, then the decision not to include 1:1 support in regular classes in secondary school would likely have the status of a “decision” reviewable in this court, whether as a challenge to the TDSB’s SEP, or the Minister’s approval of that SEP.

[142] To the extent that the OSET does not have jurisdiction over a dispute, it appears that a parent has no recourse other than an application for judicial review to this court or a claim to the HRTO. Thus, the narrower the construction that is placed upon the meaning of the word “placement”, the broader and more material the range of disputes that should be brought directly to this court, from the decisions of school boards and principals, without the benefit of Ontario’s specialized tribunal established to finally decide special education issues.

[143] The adage “be careful what you ask for” comes to mind. If the structure of administrative decision-making is such that recourse is to this court for a question as important as whether K.S. should be provided with 1:1 support in a regular class, then this must be made clear to parents.

[144] I would suggest, as well, that this concern should also inform the OSET’s consideration of its own jurisdiction: that which is not properly before it would then be a final decision that had run its course in the administrative process that could be challenged by judicial review.

[145] Finally, I would note that the paucity of OSET’s jurisprudence generally as reflected in its available jurisprudential record. Attached as Appendix “B” to this decision is a list of every decision of the OSET reported on between 2007-2025. There are a total of 37 reported decisions of the OSET. Four of these involve K.S. The 37 decisions appear to be in respect to 23 students (there are multiple instances of more than one decision in a single case). Many of the reported decisions are procedural or supplementary rulings (12 of the 37 decisions). In 10 of the cases, the matter was dismissed on jurisdictional grounds, and in another case, it was dismissed as moot. Thus, in the aggregate, 25 of the 37 decisions were either procedural or supplementary rulings, or summary dismissal orders on jurisdictional grounds. Of the 12 remaining reported decisions, it appears that only two cases are decisions on the merits of a placement issue where identification was not in issue.

[146] This summary of the OSET’s decisions in the past 18 years is superficial. I do not take much from it. But I would observe that it might be a basis for some reflection: Ontario has established and resourced a specialized tribunal to deal with special education issues. 23 students over 18 years have had recourse to this tribunal, and it appears that decisions on the merits after a hearing have been rendered only 12 times. Perhaps this is because the “system” works so well that there is little business for such a specialized tribunal. But perhaps the unduly restrictive understanding the tribunal has developed of its jurisdiction is also an explanation.

Additional Issues

(i) Standing

[147] K.S. turned 18 years old in March, 2024.

[148] The Education Act, s. 1(8), provides that any right that would vest in a parent shall vest in the child once that child reaches 18 years of age. The TDSB submits that this application must be continued in K.S.’s name, since the rights asserted by the Applicant vested in K.S. in March, 2024.[^22]

[149] I would not give effect to this argument for the purposes of these applications in light of the limited nature of the remedies I would order and the excessive delay in addressing K.S.’s needs in the school system.

[150] This said, I would observe that the Applicant has so personalized his misadventures in the special education conflict resolution processes that he has been inclined to take unreasonable positions on a range of subsidiary and procedural issues, including this one. On the record before this court, it would have been a simple thing for the Applicant to have complied with the requirement that he be appointed litigation guardian for K.S. in these proceedings: Rules of Civil Procedure, RRO 1990, Reg. 194, rr. 7.06 and 11.02. The Applicant has been represented by counsel throughout these legal proceedings, thus satisfying the requirement for a litigation guardian that may act as a barrier in some cases. Counsel did not provide us with any good reason that the Applicant did not comply with these provisions, once they were brought to his attention by the TDSB.

[151] On a reasonable reading of the record, I conclude that the Applicant was so fed up with the myriad technical, procedural and jurisdictional arguments that had impeded resolution of his concerns that he refused to comply with this concern. I would not require him to do so for the purposes of these applications. The remedy I would order could see further proceedings before the OSET and will see further proceedings before the HRTO. The Applicant should understand that, now that K.S. has turned 18, the Applicant will need to fulfill the legal requirements to be appointed litigation guardian if he wishes to continue in that role for K.S.

(ii) Vexatious Litigant Order

[152] I have been critical of the OSET, the HRTO and the TDSB in these matters.

[153] The OSET made a vexatious litigant order against the Applicant. This order was not made without a foundation for it, but I would set aside that order, in light of my conclusion that the Applicant has been “right all along” and has been frustrated by a set of processes and decisions that have denied the Applicant a decision on the merits for so many years that any victory now may be substantially illusory: K.S. cannot regain the lost opportunity for an education that he may have lost as a result of this prolonged set of proceedings.

[154] However, just because I conclude that the Applicant has been “right all along” about being entitled to a decision, on the merits, from the OSET, does not mean that the Applicant has not behaved vexatiously, as that term is understood in the jurisprudence.

[155] The Applicant could have sought judicial review of the 2019 OSET decision, which was the first time the OSET dismissed an appeal from the Applicant for lack of jurisdiction. The Applicant could have sought judicial review of the 2022 decision of the OSET again dismissing the appeal on jurisdictional grounds. Or the Applicant could have accepted the OSET’s decisions and pursued human rights complaints following the 2019 or 2022 decisions, rather than bringing new OSET proceedings on grounds previously decided. Bringing a third OSET appeal, on a basis already decided against the Applicant, was vexatious. It is of the very essence of vexatious conduct to repeatedly contest issues that have already ben decided. This is so even if the previous decisions turn out to have been wrong.

[156] Put in stark terms, tribunal decisions are authoritative until and unless they are overturned. A question, once decided, may not be relitigated between the same parties.

[157] The Applicant argues that there are annual rights of appeal that arise from annual decisions on identification and placement. This is true. But this is not a basis on which an applicant may relitigate an issue of principle that has already been decided: it is a waste of time and resources to relitigate decided questions.

[158] The Applicant also pursued issues which were secondary to his core concerns: seeking a recording of the SEAB proceedings that had been routinely destroyed, pursuing claims about interpreters – all of these were distractions from the Applicant’s core concerns and served to create an atmosphere of heightened conflict, and that the Applicant was seeking and pursuing conflict as an expression of unhappiness over the consistent denial of his core claims.

[159] I have noted above the failure of the tribunals and the TDSB to identify and make available effective routes of conflict resolution for the Applicant’s core concern, which I have found was worthy of the adjudicative process somewhere. So, my comments about the Applicant’s vexatious litigation conduct must be read in this context: the Applicant, represented throughout by counsel with specialized expertise in special education issues, tried multiple avenues to have his claims decided and primarily as a result of the TDSB’s litigation strategy, he was denied a decision on the merits, on the basis of a full record, for many years. This must be understood in the context in which it arises: advocating for an exceptional student such as K.S. can be an exhausting, unending parental duty. It is understandable that the Applicant, and his counsel, grew frustrated with the unsatisfactory processes below, and on that basis, I would excuse their past vexatious conduct without condoning it. This remedy does not preclude a future finding of vexatiousness below if future conduct by the Applicant, in the overall context of his litigation conduct, would justify it.

Remedies

[160] I would quash the impugned HRTO decision and send it back for adjudication by the Tribunal. I appreciate that there are issues raised by the Applicant before the HRTO in addition to the claims arising from the TDSB’s failure to provide 1:1 support to K.S. I view the entire disposition by the HRTO to be tainted by the dismissive approach taken by the HRTO in the impugned decision. I would not preclude the HRTO from refining and focusing on the real issues in dispute during its case management of the Complaints, and nothing in this decision should be taken to preclude summary dismissal of the tangential heads of complaint, if the HRTO should so decide following a proper application of its summary dismissal jurisprudence.

[161] I would quash the impugned OSET decision (including the vexatious litigant order). However, I see no point in remitting the issues before us to the OSET for past academic years. Those years have long come and gone. Little purpose would be served by the OSET inquiring into what should have been done, in the past: those issues may be addressed in the HRTO proceeding.

[162] However, to the extent that K.S. is still eligible for services at the TDSB, and seeks to avail himself of those services, his position that he should be in a regular class, with 1:1 support, should be addressed in the process below, including before the OSET, on the basis of these reasons.

Disposition

[163] I would conclude that the OSET’s decision finding it had no jurisdiction was unreasonable because it failed to state and apply any definition of the word “placement”. I would find that the functional understanding of the word “placement” used by the OSET in its decision is unduly restrictive. I would not otherwise define the word “placement” out of deference to the choice the Legislature has made that the OSET decide questions respecting the education of exceptional students.

[164] I would also find that the OSET’s decision that the TDSB does not offer 1:1 assistance in secondary schools for exceptional students with autism is unreasonable for failing to provide adequate reasons for that finding, both in terms of the facts upon which that finding was based, and in respect to the legal principle upon which that conclusion rests. As I have explained, there are strong grounds to conclude that such a finding could not be sustained on either the facts or the law.

[165] I would conclude that the HRTO’s dismissal of the Applicant’s complaints was substantively unreasonable, for the reasons I have given.

[166] For these reasons, the applications for judicial review are both allowed.

[167] The OSET decision is quashed but is not remitted back to the OSET because the academic years in issue have long ended. In any future processes respecting identification and placement of K.S., those processes shall be conducted in accordance with these reasons.

[168] THE HRTO decision is quashed and the complaints are remitted back to the HRTO for determination of the Applicant’s claims. In these HRTO proceedings, the Applicant shall be entitled to amend his complaint(s) to include claims arising from failure of the TDSB to accommodate K.S. up to the present time.

Costs

[169] The Applicant shall have his partial indemnity costs of these applications from the TDSB, fixed at $15,000, inclusive, in the aggregate, for both applications, payable within 30 days. There shall be no costs for or against the HRTO or the OSET.

“D.L. Corbett J.”

I agree: “R.D. Gordon J.”

I agree: “R.A. Lococo J.”

Released: February 3, 2026

Appendix “A” – Acronyms Used in this Decision

HRTO – Respondent Human Rights Tribunal of Ontario

IEP – Individual Education Plan

IPRC – Identification and Placement Review Committee

ISP – Intensive Support Program

OSET – Ontario Special Education Tribunal

SEAB – Special Education Appeal Board

SEP – TDSB 2022-23 Special Education Plan

TDSB – Respondent Toronto District School Board

APPENDIX “B”

OSET DECISIONS REPORTED ON

2025

OG v. Toronto District School Board, 2025 ONSET 5 OG v. Toronto District School Board, 2025 ONSET 4 HC v. Toronto District School Board, 2025 ONSET 3 HC v. Toronto District School Board, 2025 ONSET 2 TB and TS v. Toronto District School Board, 2025 ONSET 1

2024

AT v. Thames Valley District School Board, 2024 ONSET 3 TS and AS v. Toronto District School Board, 2024 ONSET 2 MD v. Toronto District School Board, 2024 ONSET 1

2023

GF v. Toronto District School Board, 2023 ONSET 2 GF v. Toronto District School Board, 2023 ONSET 1

2022

No decisions

2021

V.J. and B.J. v. Toronto District School Board, 2021 ONSET 2

K.S. as Represented by his Litigation Guardian G.F. v. Toronto District School Board (“TDSB”), 2021 ONSET 1

2020

F.Y. and L.B. v. Toronto District School Board, 2020 ONSET 3 F.Y. and L.B. v. Toronto District School Board, 2020 ONSET 2 JL v. Halton Catholic District School Board, 2020 ONSET 1

2019

HA v. Toronto District School Board, 2019 ONSET 1

2018

RW v. Toronto Catholic District School Board, 2018 ONSET 1

2017

D.K. v. Toronto District School Board, 2017 ONSET 1

2016, 2015, 2014, 2013

No decisions

2012

M.S. v. Ottawa Catholic District School Board, 2012 ONSET 1

2011

B. R. v. Halton District School Board, 2011 ONSET 6 C. S. v. Halton Catholic District School Board, 2011 ONSET 5 M. S. v. Ottawa Catholic District School Board, 2011 ONSET 4 B. R. v. Halton District School Board, 2011 ONSET 3 C. S. v. Halton Catholic District School Board, 2011 ONSET 2 C. R. and B. R. v. Halton District School Board, 2011 ONSET 1

2010

B. R. v. Halton District School Board, 2010 ONSET 3

C. S. v. Halton Catholic District School Board, 2010 ONSET 2 C. S. v. Halton Catholic District School Board, 2010 ONSET 1

2009

J. K. v. Toronto District School Board, 2009 ONSET 1

2008

J. C. v. Toronto District School Board, 2008 ONSET 5 W. F. v. Ottawa Catholic District School Board, 2008 ONSET 4 L. W. v. Toronto District School Board, 2008 ONSET 3 W. F. v. Ottawa Catholic District School Board, 2008 ONSET 2 L. W. v. Toronto District School Board, 2008 ONSET 1

2007

J. F. v. Near North District School Board, 2007 ONSET 3 C. v. Durham District School Board, 2007 ONSET 2 S and S. v. Peel District School Board, 2007 ONSET 1

For the prior 23 years (1984 – 2006), there were 62 reported decisions of the ONSET – a total of 97 decisions over 42 years – an average of between 2 and 3 decisions per year.

CITATION: Furgasa v. Toronto District School Board, 2026 ONSC 563

DIVISIONAL COURT FILE NO.: 423/23-JR and 188/24-JR

DATE: 20260203

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, R.D. Gordon and R.A. Lococo JJ.

BETWEEN:

Gurmit Furgasa

Applicant

– and –

Toronto District School Board

Respondent

REASONS FOR DECISION

D.L. Corbett J.

Released: February 3, 2026

[^1]: On June 28, 2025, the Ontario government made an Order in Council pursuant to s. 257.31(2) of the Education Act, RSO 1990, c. E.2, to vest in the Ministry of Education control and charge over the administration of the affairs of the Respondent TDSB. 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”. By letter dated August 19, 2025, the Minister granted leave to continue these proceedings pursuant to s. 257.32(2)(a) of the Education Act.

[^2]: A list of acronyms defined in this decision is set out in Appendix “A”.

[^3]: Education Act, s. 57(4).

[^4]: Human Rights Code, s. 45.8.

[^5]: More detail of this history is set out in the SEAB Report (defined below), paras. 1-16.

[^6]: In this instance, the Applicant appealed together with his spouse and the OSET decision is reported under the spouse’s initials: H.A. v. TDSB, 2019 ONSET 1.

[^7]: Special Education Class with Partial Integration means that the student will attend a special education class and will be integrated within a regular class for part of the instructional program (a minimum of one instructional people daily). This placement can be delivered through a special education Intensive Support Program (ISP) with daily opportunities for integration: TDSB Special Education Plan 2022-2023, SEAB Report, Nov. 7, 2022, para. 18.

[^8]: The SEAB proceedings were recorded, but the recording was apparently deleted after 120 days. Applicant’s counsel failed to download a copy of the recording within the 90-day window, at least in part because she was not advised that the recording would be deleted after ninety days. As a result, this court does not have the benefit of a recording from the SEAB hearing and must rely largely on the SEAB Report to understand what took place before the SEAB.

[^9]: SEAB Report, Nov. 7, 2022, paras. 32-33.

[^10]: SEAB Report, Nov. 7, 2022, paras. 45, 47.

[^11]: SEAB Report, para. 49.

[^12]: SEAB Report, para. 52(d).

[^13]: SEAB Report, para. 55.

[^14]: SEAB Report, paras. 56-60.

[^15]: SEAB Report, Nov. 7, 2022, paras. 68-70.

[^16]: OSET Decision, Jun. 16, 2023, para. 8.

[^17]: The complete text of the TDSB decision, as set out in its letter to the Applicant, is as follows: “The Board decided that “the recommendation of the Special Education Board (“SEAB”), as contained in the report concerning [K.S.], be rejected. The Board decided that [K.S.] be placed in a Regular Class with Withdrawal Assistance. Details regarding this placement decision will be provided by the school shortly.”

[^18]: OSET Decision, Jun. 16, 2023, para. 9.

[^19]: OSET Decision, Jun. 16, 2023, para. 42.

[^20]: All emphasis has been added in this section of these Reasons.

[^21]: See also: B. vs UCDSB, 2001 ONSET 1; X. v. Y.Y, 2002 ONSET 1; R. v. Carleton Roman Catholic Separate School Board, 1988 ONSET 2; A. v. Halton District School Board, 2000 ONSET 2; Y v. XX County Board of Education, 2002 ONSET 1; B. v. Upper Canada District School Board, 2001 ONSET 1; R v. York Region Board of Education, 1986 ONSET 2; O. v. Wentworth Board of Education, 1986 ONSET 1 – all cited in L & Conseil des écoles catholiques de langue française du Centre-Est de l'Ontario, 2004 ONTED 1 in support of the proposition that the OSET may order a placement not currently offered by a Board.

[^22]: This issue does not raise merely pedantic or procedural concerns: the privilege that attaches to student records may not be waived by a parent once the student has turned 18 unless the parent is the student’s litigation guardian: Education Act, s. 266(2).