ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

B. and A.

Appellants

-and-

UPPER CANADA DISTRICT SCHOOL BOARD

Respondent

DECISION

Tribunal Members: Paula Barber, Chair

Deborah Moskal Member

Date: September 19, 2003

Citation: 2003 ONSET 2

Indexed as: B. v. Upper Canada District School Board

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL File #37a

IN THE MATTER OF the Education Act, R.S.O, 1990, E2, as amended, 57(3)

AND IN THE MATTER OF Ontario Regulation 181/98;

AND IN THE MATTER OF The child, born 1987.

BETWEEN

B and A

Appellants

-AND-

UPPER CANADA DISTRICT SCHOOL BOARD

Respondent

Tribunal Members:

Paula Barber Chair

Deborah Moskal Member

Appearing for the parties:

A and B for the Appellants

J. Lynn Thompson Counsel for the Respondent

The hearing was held by teleconference on January 16, February 17, April 11, and June 20, 2003 and at the Best Western Parkway Hotel, Cornwall, Ontario on May 28, 29 and 30, 2003. The Tribunal received the closing arguments by written submissions on July 21 and July 25, 2003.

Introduction

At the opening of the hearing the Chair stated that this Tribunal would be guided by the Education Act R.S.O. 1990, c.E.2, section 57, the regulations made thereunder, and the Statutory Powers Procedure Act.

The child is a 15-year-old student, living in Cornwall with both parents and two siblings. The child attended elementary school and Grade 9 at the school in the Upper Canada District School Board. For the Grade 10 school year, under an arrangement initiated by the Upper Canada District School Board, (UCDSB) the child was transported to the school, which has a gifted program, in the Ottawa-Carleton District School Board (OCDSB). The child has been identified as gifted by the Upper Canada District School Board. The Ministry of Education in Special Education: Guide for Educators, (2001), under the Intellectual category defines giftedness as:

An unusually advanced degree of general intellectual ability that requires differentiated learning experiences of a depth and breadth beyond those normally provided in the regular school program to satisfy the level of educational potential indicated.

Appellants’ Request

The parents request that the UCDSB be ordered to provide a placement in a special education class-gifted for no fewer than 50% of the child’s academic courses and more specifically, that this gifted class must contain other identified gifted students such that the majority of the class is composed of gifted students. As well, the parents requested that the staff teaching in this placement have qualifications for teaching gifted students and that there be no cost to the parents for this gifted program.

The Respondent’s Reply

Counsel for the respondent, the UCDSB, Ms. Lynn Thompson argued that the placement provided for the child by the UCDSB 2001/02 was an appropriate placement and that it met the Board’s legislative requirements for placement. In offering the opportunity for “enrichment opportunities” and “reach ahead”, the Board has satisfied itself that it has met the requirements for a gifted program for the child. The Board believes that it can meet the child’s needs in keeping with the Ministry regulations and Ministry guidelines. The Board states that it cannot provide any more options for gifted placements because it does not have more than two gifted students. The Board reported that there simply were not any gifted students identified with whom the Board could congregate the child.

The counsel for the UCDSB argued that school personnel testified that the child was a well-adjusted student with good marks, higher than those of peers. The child also participated in extra-curricular activities.

Witnesses

The Tribunal heard the following witnesses:

For the Appellants:

Teacher A Teacher, UCDSB

Teacher B Teacher, UCDSB

Student Teacher Student Teacher, UCDSB(during the child’s Grade 9 year)

Teacher C Teacher, UCDSB

Teacher D Special Assignment Teacher, UCDSB

Teacher E Special Education Resource Teacher, UCDSB

Norman Daigle Member, Special Education Appeal Board

Appellant The child’s Parent

Dr. Janice Leroux Parents’ Expert Witness In Gifted Education

Elizabeth Buckingham Member of the Special Education

Advisory Committee (OCDSB)

And member of the Association of

Bright Children

Teacher F Teacher, UCDSB

For the Respondent:

Larry Poirier Principal

Beverly Bethune Program Leader for Special Education

Charlene Syrduk Special Education Resource Teacher for Gifted Education, UCDSB

Philip O’Brien Superintendent, UCDSB

David Bell Education Coordinator, UCDSB

Glenda Stephenson Superintendent, UCDSB

With the agreement of both parties, witnesses were called out of order. As much as is possible, the role for each witness is described in the role that each held at the time that the child was in Grade 9 in the school year, 2001/02. Ms. Stephenson was working for the Ministry of Education during that school year, but she testified as Superintendent currently responsible for Special Education, not under the auspices of the Ministry of Education. Two witnesses were questioned by audio conference during the hearing and the cross-examination of Dr. Leroux by Ms. Thompson occurred on June 20, 2003, by audio conference.

Preliminary Matters

Preliminary hearings were held, on January 16, February 17, and April 11. The reasons regarding preliminary issues and the orders resulting from those preliminary hearings are contained in the Appendix of this decision document.

Ann Fudge, Tribunal member, was in attendance at the audio conferences in January and February, but was not able to participate in the conference in April. As a result, it was necessary to continue without her.

On May 28, 2003, at the hearing conducted in Cornwall, the following preliminary issues were raised. The appellant raised the issue of not receiving all the documents requested prior to this hearing date. Ms. Lynn Thompson, on behalf of the Board stated that the information requested would be brought forward through testimony of witnesses.

In the interest of completing the hearing in a timely fashion and in the best interests of the child, the Tribunal determined that it would proceed with the hearing and that appellant might need time during the course of the hearing to read documents and prepare questions regarding testimony or documents not received in advance.

The requests for questioning testimony of witnesses by audio teleconference was raised by both parties and agreed to by both parties.

Ms. Thompson, for the record, raised the issue of changing the composition of the tribunal panel. The Chair referenced Section 4.4(1) of the Statutory Powers Procedure Act and past practice of Special Education Tribunals in making the decision to proceed without Ms. Fudge.

Legal Framework

The following sections of the Education Act and the regulations made thereunder have been used in the arguments presented by the parties.

Education Act R.S.O. 1990, c.E.2, as amended, Subsection 57 (3) Right of Appeal-Where a parent or a 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.

Subsection 8 (3) The Minister shall ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario, and shall provide for the parents or guardians to appeal the appropriateness of the special education placement….

Section 25: School Attendance Counsellor Provisions,

Section 265 (1) (m) Access to school or class, - subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils; and…

Regulation 181/98, Identification and placement of exceptional pupils governs the identification and placement of exceptional pupils, IPRC reviews, appeal procedures and the role of parents/guardians in these proceedings.

Regulation 298/90, (31) (e) – Class size for exceptional pupils.

The Statutory Powers Procedure Act, R.S.0. 1990, c. S.22, , Subsections 4.6(1) and 23(1)

Case Law Cited

B v. Upper Canada District School Board, September 24, 2001 (2001 ONSET 1)

B v. Carleton Board of Education, September 9, 1985 (unreported decision)

B v. Carleton Board of Education, September 19, 1985. (unreported decision)

R v. Carleton Roman Catholic District School Board, December 16, 1988. (1988 ONSET 2)

Y v. XX District School Board, February 18, 2002 (2002 ONSET 1)

Re. W.A. Stephenson Construction Western Ltd. et al, 1992 ABCA 103, 71 C.C.C. (3rd) 266. (Atla.C.A.)

[Litigation, A and B v. Upper Canada District School Board. Ontario Superior Court Of Justice-Ontario 01-1226, June 25, 2002].

Other Sources Cited

Ministry of Education, Special Education: A Guide for Educators, (2001)

Issues

1. The key issue is where the child should be placed and whether the placement under dispute (i.e. the IPRC decision of the UCDSB, October 25, 2001, placing the child in a regular class with “enrichment opportunities” and “reach ahead”) would meet the child’s needs as a gifted student in accordance with the Ministry definition of giftedness.

2. Can the child’s needs for “differentiated learning experiences of a depth and breadth beyond those normally provided in the regular school to satisfy the level of education potential indicated” be met within a regular class placement, the only placement option available within the UCDSB Special Education Plan?

3. Can the child’s needs for “differentiated learning experiences of a depth and breadth beyond those normally provided in the regular school to satisfy the level of education potential indicated” be met without a gifted peer group?

4. The fourth issue is whether the School Board and the parents can work together in the child’s best interests in light of their deteriorating relationship.

5. A final issue is the role that the child was asked to play in acting as a conduit for information between the School Board and parents regarding the placement.

Wishes of the parents

The parents wanted the child to be in a congregated gifted program where the child has the opportunity to interact with gifted peers. They want this congregated program to be on a regular basis, daily, and in 50% of the academic courses with other gifted students. The majority of the classes should be comprised of identified gifted students.

If it is not possible for this program to be in Cornwall, then the parents want him to be in a gifted program in a school where the transportation is no more than an hour each way so as not to impose undue hardship on the child. The parents would like this program to be offered to the child at no cost to them.

The Appellant argued that the placement developed by the UCDSB at the school, was not appropriate in meeting the child’s needs as a gifted student. The regular class placement with “enrichment opportunities” and “reach ahead” is not a suitable placement to reach the child’s potential. In this placement, the teachers providing the program did not have training or experience with gifted education, or in providing gifted programming. The child did not have the opportunity to interact with other gifted peers.

The parents argued that the child missed opportunities for “reach ahead” and “enrichment opportunities” because the parents were not included in the decision making process about his placement. The child, at the age 14 was left to be the conduit of information about the placement/programming.

The Board’s Requests

The Board requests that the Tribunal dismiss the appeal and find that the placement developed for the child was appropriate to meet the child’s needs as a gifted student. The Board asked that the Tribunal find what it was about the gifted placement that did not meet the child’s needs as a gifted student.

The Board welcomes the opportunity to provide a gifted program that meets the child’s needs as a gifted student that is in compliance with regulations and Ministry guidelines.

Ms. Thompson argued on behalf of the Board that the placement proposed for the child in the IPRC decision of October 25, 2001 and subsequently developed during the school year, 2001-02 met the child’s needs as a gifted student.

REASONS AND ANALYSIS

Background

1. A decision [without full reasons] by the Special Education Tribunal chaired by Marilyn Thain, was released on August 30, 2001, ordering that the child be identified as an exceptional student, “gifted”, and ordered that the child be placed in a gifted secondary school program. The decision document with full reasons was released on September 24, 2001.

2. Mr. O’Brien, superintendent, stated in a letter to the appellant that the UCDSB was prepared to act upon the decision of the Tribunal, and would identify the child as an exceptional student-gifted and place the child in a gifted secondary program.

3. An IPRC was held on October 25, 2001 and the statement of decision of the IPRC placed the child in a “regular class placement with enrichment opportunities and reach ahead”.

4. The parents disagreed with this decision and appealed this placement.

5. The Appeal Board hearing was held on August 28, 2002.

6. The Appeal Board of August 28, 2002, upheld the IPRC placement decision of the UCDSB of October 25, 2001

7. The UCDSB accepted the Appeal Board recommendation.

8. On November 12, 2002, an IPRC meeting was held at the school in the OCDSB placing the child in a “Gifted Congregated Program (Secondary) because [under reason for placement], “Congregated gifted class placement not available in UCDSB”.

9. The child and a sibling were transported to this placement during the remainder of the 2002-03 school year, for 100 km each way. Transportation was arranged and provided for by the UCDSB.

10. In October 2001 the parents initiated a contempt proceeding regarding their position that the Board had not implemented the Tribunal decision regarding placement of the child.

11. The Superior Court issued its decision on June 25, 2002, stating that the Tribunal’s order was ambiguous and that the Tribunal did not specify a placement, and ruled in favour of the Board.

12. The Appellant then contacted the Secretary of the Special Education Tribunal requesting a Tribunal hearing regarding the October 25, 2001 IPRC decision. This decision was followed by a Special Education Appeal Board decision in August, 2002 and subsequently the Board’s accepted the Appeal Board decision, upholding the Oct. 25, 2001 IPRC decision of the UCDSB.

13. On December 15, 2002, the appellant sent an e-mail to Mr. Bill Wyman, Secretary of the Tribunal stating that the appellant was unable to get several documents from the UCDSB and could not prepare for the Tribunal hearing without these documents.

14. On January 16, the Tribunal convened to hear the preliminary issue on the release of documents.

15. On January 23, the Tribunal released its order requiring the Board to release specific documents to the appellant. (See appendix A, Order on Preliminary Matter)

16. During the hearing on the preliminary matter of the release of documents, Jan. 6, 2003, Ms. Thompson raised the matter of jurisdiction of the Tribunal.

17. The hearing for the preliminary matter of jurisdiction was held by teleconference on February 17, 2003 and the Tribunal’s decision regarding the preliminary matter was released on February 28th.

18. On April 1, 2003, the hearing was again convened to hear the issue of the non-release of documents by the UCDSB. The Tribunal heard that the documents requested by the appellant and ordered by the Tribunal to be released, had not yet been released. The Tribunal again ordered the UCDSB to release the documents.

19. The Tribunal released its decision indicating to Ms. Thompson, the UCDSB was ordered to release the documents by April 15th (Appendix).

20. The Tribunal held a full hearing on May 28, 29 and 30th.

21. It reconvened by teleconference on June 16th having allowed Ms. Thompson time to prepare for the cross-examination of Dr. Janice Leroux, an expert witness of the parent.

22. Subsequent to the teleconference, the parents released their closing arguments on June 23, 2003.

23. Ms. Thompson requested an extension until July 18th to prepare her closing arguments.

24. The appellant submitted a rebuttal to the closing arguments of Ms. L. Thompson, which was received by the Tribunal on July 29, 2003.

Basis for Decision

The principal issue in this hearing was whether the child’s needs as a gifted student were met in the placement provided by the UCDSB. The Tribunal heard from many witnesses about how they [the teachers and support personnel] tried to provide differentiated and enriched learning experiences for the child.

The Tribunal heard through evidence that the child attended the school taking Grade 9 classes with the exception of Grade 10 History. The child was given the opportunity to try the Prior Learning Assessment (PLAR) [this would allow the child the opportunity to write and exam that would challenge course content. If successful, the child would not have to take that credit]. The child was offered the books to prepare for the PLAR exam, but did not take this opportunity to prepare for a PLAR exam independently. As well, the child was given the opportunity to take a pre-test in French Grammar, but didn’t try this exam. The child was offered the opportunity to take a Grade 10 English course, but would have had to give up the Physical Education course and the child did not want to do this.

All of these offers to modify the placement were made to the child, not the parents. The appellants stated that they were not aware of all the offers regarding the programming that were made to the child.

In the absence of gifted peers, the Board tried to offer the child opportunities to alter the breadth and depth of the program. Teachers offered the child the opportunity for additional work and these suggestions were presented to the child so that the child could do them in a voluntary manner for example, the child read a longer book in English and did a book report. Staff reported that the child did not take several of the opportunities presented.

The requirements for the child were set at Level 4 [provincial achievement Level 4] in all subject areas. Twice the child was clustered with groups of stronger students [English and Math].

The guidance teacher was asked by the principal to set up an enriched gifted program in English, with additional higher expectations. The child discussed this course with the principal and guidance personnel. The child decided not to take the English course because as it would mean missing the Physical Education course.

The school did attempt to make changes in an “ad hoc” manner in the child’s program as the year progressed. The changes were not handled in an appropriate manner in that the changes were not communicated to the family so that there could have been a collaborative approach. Opportunities were offered to the child as “optional”, not as part of his gifted program. Teachers did not instruct the child, but rather, the child was asked to do work independently. The Tribunal is of the opinion that the child did not receive a “differentiated program of a breadth and depth to satisfy the level of potential” because with the exception of the special math class in the second semester, the child took the same courses that other students took, with the exception of independent enrichment opportunities.

As part of the child’s gifted program, the Board tried to institute mentorships. One way that they tried was within the school with Mr. Poirier, the principal, acting as the child’s mentor. Mr. Poirier called the child to his office and had some books that he thought the child might read. The school attempted to connect the child with an engineer in the community but this did not materialize. According to appellant, this was a redundant mentorship possibility because he himself is an engineer. The second mentorship that was attempted was with a lawyer, which did occur, for a day. A daylong placement is usually considered “job shadowing.”

The other type of withdrawal from the regular school program was the week long enrichment program at the University of Ottawa. The parents paid a fee for the child to attend this program that was held during the school year. These were the examples of the “gifted withdrawal” that the Tribunal heard during the testimony.

The Tribunal heard about the “reach ahead” opportunities offered to the child. The Board stated that the child was placed in a Grade 10 History course as part of the gifted program; yet, all students from Grade 9 Geography that year went into Grade 10 History because there weren’t enough students to hold a Grade 9 Geography class. The following year, had the child remained in the school, the child would have had to take Grade 9 Geography during the Grade 10 school year.

The Tribunal heard through testimony of Board witnesses that the French Immersion program provided for “gifted opportunities” and that the child had been in French Immersion for the elementary grades.

Analysis

The Board stated that the program developed for the child- “enrichment opportunities with reach ahead”- was appropriate to meet the needs to satisfy the education potential indicated and that the Board had developed a program that was in compliance with Ministry of Education expectations for a gifted student.

The Board said that “mentorship” programs were initiated for the child. Although the Tribunal is aware of the success of mentorship programs with gifted students, the fact was that the principal was the school-based mentor and called this Grade 9 student to his office for mentoring. The Tribunal does not believe that a person with the role and responsibilities as a principal is a suitable person to establish a mentoring relationship with a grade 9 student. A mentor should not be a person with the powers of a principal, a person who could be perceived as intimidating by a Grade 9 student.

In the English class, the expectations for the child were at Level 4 of the English Curriculum. Level 4 is one of the four levels used for evaluating students following the regular curriculum and therefore this is not a modification of the curriculum. On two occasions, the teacher gave the child the opportunity to exceed Level four by giving the child suggestions on how to improve the grades, but the child chose to be graded on the regular curriculum. An English class conducted at the Academic Level would have students at Level 4 and therefore the Tribunal is of the opinion that this would not be considered “Differentiated Learning.” Although offered the opportunity to exceed level four in the English class, the child may have been penalized and not received as high a mark as the child would have received had the child remained within the grading scheme for all the other students within the class.

The Grade 10 History class that the Board presented as a “reach ahead” opportunity is not, in the opinion of the Tribunal, a true “reach ahead” opportunity for a gifted student in that all the Grade 9 level students took Grade 10 History because there were not enough grade 9 students to offer this course during the Grade 9 school year. In the next school year, the child would have to take the Grade 9 Geography course. This is not “differentiated learning.”

On the Media Literacy section of the English course, the teacher gave the child the opportunity to be pre-tested; the test indicated that the child had not mastered the subject matter. The Tribunal heard that in most cases, the child was given a book to prepare to write a PLAR exam or a test to determine if the child knew the subject matter of a course or a section of a course. The Tribunal is of the opinion that the child was given too much responsibility by expecting a Grade 9 student to make these decisions independently and to prepare for these PLAR exams without the involvement of the parents.

During the second semester, a special Mathematics class was established where the teacher had an additional qualification in Gifted education. The teacher pulled a cluster of students who were in an accelerated Mathematics class where there were Ministry curriculum expectations from higher grades within that special Math curriculum and taught in a small special class of five students. These students were given the opportunity to work towards the Pascal competition. Some of the work done in this class would not be done in a regular class. The child achieved in the top third of the class. The child was provided with a textbook to work ahead to see if the child wanted to skip Grade 9 Mathematics, but according Board witnesses, the child didn’t do anything with the textbook. During this semester there was a student teacher in the classroom that taught the class by herself for six and one half weeks, for one third of the school term. [It was the Tribunal’s understanding that the student teacher was left on her own to teach the class, although there was consultation with the classroom teacher].

Although the Board is commended for trying to cluster high achieving students to offer an advanced learning experience in Mathematics, by delegating so much of the course to a student teacher, the Board missed an opportunity to provide for differentiated learning for the students in the class. This would have been a challenging assignment for a student teacher learning to teach the regular Math curriculum without having to learn how to differentiate curriculum with the depth and breadth required for gifted students.

The Tribunal notes, however, that this attempt to provide the child with an intellectual peer group occurred for 1/8 of the school academic program during the school year in this placement that is under appeal, too little time for an adequate gifted placement.

The Tribunal notes that the class size for a group of gifted students in an elementary school, under Regulation 298 is a maximum of 25 students, a much larger number compared to the class size limitations that the Ministry has imposed for segregated classes for other groups of exceptional students. The regulation is silent on the maximum class size for gifted students in a secondary school, but it is logical to assume that the numbers would not be a maximum of five students in a self-contained class for gifted, the size of the special mathematics class that was created during the second semester. With a larger number of students in a class, there can be an adequate number of students with whom gifted students can interact. There are advantages for gifted students to be in larger groupings where there is the opportunity for more stimulation from students in a group of that size compared to a small group of five students.

In the French Immersion program, offered in the first semester, the teacher did not know that the child was a gifted student until after the October 25 IPRC meeting when the semester was almost half completed. After that meeting, the French teacher gave the child the opportunity for extensions in the Literature area and the child elected not to move beyond the regular curriculum. During the principal’s testimony, we heard that the immersion courses offered at the school were “an integral part of the gifted kind...” and that “French Immersion “ is listed under Gifted Program in an UCDSB document. The Tribunal believes that although French Immersion can offer a challenge to students whose first language is English, students taking courses conducted in a second language do not have the opportunity to discuss or debate ideas and concepts at the breadth and depth of their intellectual level because the student are still grappling with the nuances of second language learning. Therefore, the Tribunal believes that French Immersion courses are not a substitute for a gifted program.

The Tribunal did not hear about the differentiation of the Science curriculum because the teacher was not available as a witness.

The computer teacher consulted with the in-school special education coordinator and the computer consultant regarding the child’s curriculum. Essentially, they gave the child texts and materials to work on.

In response to a parental request that the child be provided with something beyond what was being provided in the computer course that would allow the child to demonstrate further ability and a sense of humour, staff offered the child the opportunity to be a peer teacher for other students. The parents declined to have the child assume the role of peer tutor.

The Tribunal believes that the placement described by numerous witnesses during the hearing was not appropriate in meeting the child’s gifted needs. For the most part, the child was repeatedly left to read materials independently, and to prepare for PLAR tests.

In most of the child’s classes, the lessons were conducted by the teacher at the regular grade level and then the child was given opportunities for additional work to do independently that would extend the regular curriculum. The enrichment opportunities were not taught by teachers but were self-taught enrichment opportunities for the child.

The Tribunal is of the opinion that a student, who is 14 years old in a grade nine program, the first year in a high school setting, needs considerable support. The expectations for responsibility from the child for the gifted program exceeded the developmental capabilities of a 14-year-old student and placed an undue burden the child to be the conduit for information about the program from school to home.

In addition to the expectations for self-learning that occurred in most classes, the Tribunal expresses concern over the role that the school placed on the child to communicate the options within the placement to his parents. For example, the child was asked by school staff to make a choice between Physical Education and Grade 10 English, and there were numerous occasions where the child was expected to communicate information to parents, such as the decision not to take the PLAR. The child was making decisions about the special education program at the age of 14. Whether to continue to work independently on the Computer course or whether to be pre-tested on topics on the courses and whether to PLAR Grade 10 math or whether to accept placement in Grade 11 Math were all decisions that the child was asked to make.

The Tribunal is of the opinion that these decisions should have been communicated to the parents and then made in consultation with the parents and not left to the child. Correspondence was addressed directly to the child, for example, a letter regarding job shadowing experiences and a letter regarding the compacting of a Mathematic course. No letter was sent to the parents about this proposed change in the child’s program.

Dr. Leroux, in her testimony, stated that there is a difference between encouraging independence in a student and giving the responsibilities to adults involved where the responsibility should rightfully rest. The Tribunal believes that had communication from the school to the parent regarding changes to the child’s program/placement occurred, many of the issues regarding placement could have been resolved before reaching the point of an appeal and a Tribunal hearing.

Even though the child had been identified and placed in a special education program in November 2001, the parent did not receive a copy of this IEP until three weeks before the end of the school year. The legislation requires that the School Board, through the principal, have an IEP completed within one month of placement. The fact that an IEP was not created for the child made it impossible for the parent to know what modifications were made to the child’s program that could meet the needs as a gifted student.

The staff put the onus on the child to learn independently as opposed to teaching the child material that a teacher had compacted or enriched for the child’s level of ability.

The Tribunal is of the opinion that the frequent changes and “ad hoc” nature of the placement did not instill confidence that a placement had been developed to meet the child’s needs. With a program that changed so frequently during the school year and with so many proposals for changing the program throughout the year, the Tribunal is of the opinion that the program was not appropriate and therefore the placement was not appropriate to meet the child’s needs as a gifted student to be able to achieve the “level of educational attainment indicated”.

The School Board argued that it could only offer this placement since it had only two gifted students and therefore it was not possible to “cluster” the child with like peers. When it is expected that approximately 2% of a school population is identified as gifted, [Statistics from the September Board reports in Ontario for 2001-02 stated that approximately 2% of Ontario’s secondary school students have been identified as gifted] the Tribunal questions the identification practices that have resulted in so few student being identified at this time within the UCDSB. With a secondary school population of 10,000 – 11,000 students, it is expected that there would be at least 200 identified gifted students in the secondary schools in the UCDSB.

Since the child has only two more years of school, it may be difficult to identify enough gifted students to provide for a gifted peer group for the child. Nevertheless, that does not mean that the Board should not begin a process to identify more gifted students to provide those gifted students the opportunity to learn with like peers. There are many models of providing education for gifted students at the secondary level that offer differentiated learning of a depth and breadth that can satisfy the potential of gifted and bright children.

The Tribunal does not believe that gifted students must only be placed in a ‘congregated’ class placement. There are other models to deliver appropriate programming for gifted students, but a key criterion in gifted education at the secondary level is grouping gifted students with other like peers so that there is a peer group that can motivate and encourage gifted students to reach beyond their present level of functioning. A number of boards have enrichment level courses in the core subjects and group gifted and high achieving students in those courses. Cluster groups of gifted students within an academic level course can meet the needs of gifted students if the program within this course provides for differentiation to a breadth and depth to satisfy the level of academic achievement required. Throughout the province Boards have developed International Baccalaureate (IB) courses, Advanced Placement (AP) courses, Magnet (specialty) Schools in the arts or sciences, as examples of ways in which secondary schools can be organized. We heard testimony from Board witnesses that the Board has in its booklets an IB and an AP program for students in Grade 11 and Grade 12. We also heard that the Board, has, in writing, enrichment level courses using the “E” course code. We heard as well, that the schools receive additional staffing for the AP program. According to Mr. O’Brien, the Board was exploring mentorships and supporting a school of the arts with a focus on drama at one secondary school with staffing from Special Education and has put this program under the “guise of giftedness”. Although we heard that there was the possibility, on paper, at least for the Board to offer a placement that could meet the needs of gifted students, we did not see or hear the reality of these program possibilities described for the child.

Whatever administrative model is chosen, there must be the opportunity for a “differentiated curriculum” different from the regular curriculum for gifted students. As well, the students must have the opportunity to interact with gifted and bright peers so that the students can stimulate one another’s minds and motivate each other. Gifted students need programming developed by teachers with expertise in their discipline.

By not providing the child with the opportunity to learn with gifted peers for at least part of the day, the UCDSB is depriving the child of an essential component to a placement, which would meet the needs. Many school boards have successfully used the examples suggested in this document in congregating gifted students to meet the needs of these students.

The plan to use computer technology to match the child with gifted peers in other boards has merit for secondary school students and gives the students the opportunity to interact with like peers, but this plan did not materialize during the child’s placement.

The mentoring opportunity has merit as well for secondary schools, but a mentorship program must be planned, must continue over a period of time [job shadowing for a day may lead to a mentoring, but does not stand alone as a mentoring program], must be with a trusted adult who has expertise in the discipline in which the student is studying and must be a relationship where the student does not feel judged, but supported in trying to stretch to new levels of achievement.

Classroom enrichment can be a method of helping meet the needs of gifted students, but the students must not be penalized with a more rigorous marking scheme for the additional work that the student is doing and the enrichment must not be “just more work” [in the eyes of the student]

If a student is offered the opportunity to take a “pre-test” to determine if the student has to take a full course (PLAR) or a unit of the credit, and if that student receives, as a final mark, the mark received on the pre-test, there will be little incentive to try any of the pre-tests since these pre-test or PLAR marks will likely to be significantly lower than those marks earned in a regular course.

The UCDSB did not have a carefully thought out plan to meet the needs of the child. Had the Program Leader for Special Education read the Tribunal decision of September 25, 2001, prior to the IPRC meeting on October 25, for which she was responsible, perhaps some of the issues that arose over the year would have been ameliorated. The Program Leader said that although she had the Tribunal decision document she hadn’t read it, beyond the cover page. The parents reported that they did not receive the Individual Education Plan (IEP) until three weeks before school ended, even though Ministry of Education policy requires an IEP to be produced within 30 days of placement. Had the parents received the IEP within the month after placement, there may not have been the issues that arose as the year progressed, because, even if the parents disagreed with the IEP, at least they would have known about the child’s programming.

The “ad hoc” nature of the program that was planned as the year unfolded exacerbated the parents’ frustration that an appropriate program was not in place for the child.

The Tribunal heard that the parents initiated a contempt charge against the Board in 2001 for not placing the child in a gifted “clustered” placement with gifted peers. The Tribunal also heard during the closing arguments that the Board had obtained an order against the appellant seizing the wages from the Ministry of Health for $15,000.00, the School Board’s costs to defend itself at the contempt hearing. From the events that have unfolded it will be very challenging for the Board and parents to work together in the best interest of the family’s three children who are residents of the Upper Canada District School Board. It may be necessary for a third party to assist in reestablishing a working relationship between the parties.

Decision

The Tribunal agrees with the appellant that the Placement Decision of the IPRC of October 25, 2001 was not appropriate to meet the child’s gifted needs and grants the appeal.

Order

The Tribunal orders the Upper Canada District School Board to place the child in a congregated gifted program for September 2003.

If it is not possible for the child to be placed in a congregated gifted program with gifted peers in a secondary school in Cornwall, the Tribunal orders the Board to provide the child with a congregated gifted program in a neighbouring secondary school or neighbouring Board, at no cost to the parent. The transportation to the school should be no more than one hour each way and should be of no cost to the parent.

The Tribunal further orders the UCDSB to provide stability in the child’s schooling for the two remaining years in secondary school. Therefore, if the child is attending a particular school in September 2003, the child must be offered a continued placement in that school for the following year.

Recommendations

1. That the Senior Administration of the Upper Canada District School Board develop a training program, commencing in 2003, for all staff on their legislative requirements under the Education Act, Regulations and Ministry of Education policies regarding Special Education. This training should continue each year so that all staff that have responsibilities for the education of exceptional students/principals, teachers of exceptional students, school based coordinators of special education, and any central staff, will know their responsibilities under the Act, Regulations, and Ministry policy.

2. That Senior Administration assumes the responsibility for developing a delivery system for meeting the needs of gifted students for differentiated learning experiences of a breadth and depth beyond those normally provided in the regular school program to satisfy the level of potential indicated. The two conditions needed that were lacking in the placement proposed for the child are:

3. differentiated instruction of a challenging breadth and depth for gifted student and

4. grouping or clustering gifted students together. These elements were either missing or inadequate in the placement of 2001-2002.

The senior administration will need to develop a plan to meet the needs of gifted students that reach beyond the responsibility of a school principal who would only have the resources within the school available to him or her. The organizational models that have been used in other boards are listed under reasons and analysis. Data needs to be gathered to determine if the programs described by Mr. O’Brien that are intended to meet the needs of gifted students are operating as stated in the written materials of the Board and if, in fact the program components described are meeting the needs of gifted students.

3. That Senior Administration assume the responsibility of arranging in-service for all secondary school teachers who are teaching bright and gifted students in the Upper Canada District School Board, not only addressing the academic and intellectual needs of these students, but addressing the social and emotional needs as well. In addition to teachers who have expertise in a discipline, gifted students need guidance counsellors who can be involved in the counselling of gifted students and becoming their advocates. Guidance personnel can assist gifted students in acquiring a strong sense of self and personally satisfying career choices.

4. That the Upper Canada District School Board reviews its procedures and criteria for identifying gifted students within the Board. The Tribunal heard that the child could not be grouped with any gifted student because there were no other gifted students in the child’s grade with whom he could be “clustered” in groups. With the provincial average for identified gifted student at the secondary level at 2% [2001 statistical report, Ministry of Education], the Tribunal questions why there are so few students being identified in the school which the child attended. The Upper Canada District School Board is encouraged to find, select and group high ability students, including those “late bloomers” who may not demonstrate gifted characteristics until adolescence. The Board is encouraged to create high-ability classes and programs that attend to the needs of their gifted students. Alternate procedures for selecting a wider representation of high ability students should be put in place. Although a change in the manner is which gifted students are selected within the UCDSB may not benefit the child, at this point, given that the child is entering grade 11, there can be an immense benefit to not only the other students within the Upper Canada District School Board but to the community at large, in nurturing high ability students.

Obiter

The Tribunal heard throughout the hearing about the times when the personnel from the UCDSB did not adhere to legislated timelines in implementing Special Education requirements. As well, The Tribunal experienced the amount of time it took for the Board to release documents that the Tribunal had ordered released and the repeated orders for the release of documents to allow the appellant to prepare for the Tribunal. The Tribunal is of the opinion that until the personnel of the Upper Canada District School Board adheres to Ministry legislation and policies there will be further tribunal hearings involving this Board.

Paula Barber, Tribunal Chair_______________________________________

Deborah Moskal, Tribunal Member__________________________________

September 19, 2003

APPENDIX

PRELIMINARY MATTERS

January 23, 2003

Appellant, for the child

Cornwall, ON

Ms. Lynn Thomson

Counsel for the

Upper Canada District School Board

VIA ELECTRONIC MAIL to be FOLLOWED BY REGULAR MAIL

Dear Appellant and Ms. Thomson:

A hearing in this matter was heard by teleconference on January 18, 2003. Participating in the hearing were Tribunal members Paula Barber (Chair), Ms. Deborah Moskal and Ms. Ann Fudge. Also participating were the appellant; Ms. Lynn Thompson, counsel for the Respondent; and Mr. Bill Wyman, Secretary to the Tribunal. This hearing was convened to hear two issues raised by the appellant: that of disclosure of certain documents and the summonsing of witnesses.

As stated at the teleconference, the Tribunal, hearing no objection by Ms. Thomson, counsel for the Upper Canada District School Board, ordered that Documents #1, 2, and 3, as listed in the e-mail of December 15, 2002 from the appellant to Mr. Bill Wyman, Secretary to the Tribunal, be released immediately to A.

Included with this letter is the Order related to Documents #4 to #13 and the Witness list.

Mr. Bill Wyman will be arranging the next stage of the hearing to deal with the preliminary matters of jurisdiction and scope of the Tribunal, as requested by Ms. Thomson, on behalf of the Upper Canada District School Board.

Yours truly,

Paula Barber,

On behalf of the Tribunal

c. Bill Wyman

Secretary to the Tribunal

Order

The Tribunal agrees with the appellant that reports #4 and #5 are necessary and relevant for the issue at hand, the appeal of the IPRC in the school year, 2001-02, regarding the child. Ms. Thomson, on behalf of the Board, agreed to have the Board prepare an outline for the items listed under #4 and 5 of the appellant’s requests. (The attachment contains the e-mail from the appellant that has the complete text for each of the requests referenced in this order.)

The Tribunal agrees that the information in the statistical reports to the Ministry of Education item #6, with the gross numbers that the Board submits to the Ministry is relevant to the case under preparation by the appellant.

The Tribunal agrees that items #7 and #8 are relevant as well.

The Tribunal requires the Board to provide a brief outline of the gifted program offered by the UCDSB and that the brief summary answer the questions that the appellant has asked under #10.

With respect to #11, the Tribunal requires the Board to provide a brief outline of the practice regarding gifted students in regular class placements.

The Tribunal requires the UCDSB to produce any written correspondence, generated by the UCDSB or received by the UCDSB that contains the child’s name, which may be related to the child’s placement in the gifted program at the school in Ottawa, in accordance with item #12. The Tribunal is of the opinion that the above information requested by the appellant is relevant to the matter regarding the child and orders the Upper Canada District School Board to provide the appellant with this information forthwith.

The Tribunal believes that the information requested under #9, the information regarding the gifted elementary program, is better handled through witnesses and denies the request for this document.

The Tribunal agrees with the Board that correspondence regarding the placement of the sibling is not pertinent to this case.

The Tribunal does not agree that it is relevant to the case to have information regarding proposed gifted programming prior to the hearing and therefore, this request for documents related to item #13 is denied. The Tribunal is of the opinion that the witnesses could respond to questioning in this matter, if deemed relevant at the hearing.

With respect to the proposed list of witnesses, the Tribunal heard Ms. Thomson, Counsel for the UCDSB state that there was no objection to the witnesses listed beginning with the appellant through to Mr. P. C. Therefore the Tribunal will not comment on the appropriateness of calling those witnesses.

The Tribunal agrees with the appellant that Ms. G. Stephenson, the current superintendent responsible for Special Education, should be a witness in order to answer any question about current practices and policies regarding gifted programs within the UCDSB.

The Tribunal agrees with the appellant that the program coordinators of the gifted programs would be required at the hearing.

The Tribunal accepts the argument that current information about gifted programs at the secondary schools is needed in order to make an informed decision, but believes that the current superintendent who will be called as a witness can answer that question. Therefore, the Tribunal denies the request to have the current principal at the school as a witness.

The Tribunal heard Ms. Thomson, Counsel for the UCDSB state that some of the witness listed by the appellant will be witnesses for the Board, therefore there will be no need for a subpoena for some of the witnesses listed by the appellant. The Tribunal suggests that appellant wait for the witness list from the Board before issuing subpoenas for the witnesses listed in the e-mail of December 15, 2002.

On behalf of the Tribunal

Paula Barber, Chair

January 23, 2003

Attach. 1

December 15, 2002

Mr. B. Wyman

Ontario Special Education Tribunal

Re: Tribunal hearing for the child (date to be determined)

The documents that I wish to submit with regards to the case are listed below, categorized into currently in my possession and required from school board:

Currently in my possession

Tribunal order of August 24, 2001

Letter from Mr. O’Brien dated September 7, 2001

Letter from the appellant dated September 8, 2001

Tribunal decision of September 30, 2001

IPRC decision of October 25, 2001

IEP document delivered to me February 13, 2002

Letter from the appellant (February 2002) to Mr. Poirier regarding IEP

Letter from Mr. Poirier in response to above letter

Letters to Mr. Poirier dated February 28th, 2002 and March 1st, 2002

IEP of May 24, 2002

UCDSB Special Education Plan dated June 2001

Ministry of Education’s standards for IEPs

Ministry of Education’s standards for Special Education Plans

Transcript of Appeal board hearing of August 28, 2002

Appeal board decision

Minority report of Appeal board

IPRC report of November 12, 2002 prepared by OCDSB

Information from professional sources regarding gifted education and best practices for gifted learners

Documents required to be produced

1. First working version of the IEP and any revisions prior to February 13th

2. Written offer of gifted English class for second semester

3. Replies from Mr. Poirier to letters of February 28th and March 1st, 2002

4. UCDSB screening process for gifted identification employed in 2001/2002 school year

5. Results of said screening during the 2001/2002 school year

6. Number of identified gifted secondary students including specifics of placements, according to October 2001 and October 2002 statistical reports to Ministry of Education

7. Breakdown of these students by secondary school in Cornwall area and grade level

8. Distribution of gifted students in the 3 regions (Eastern, Central and Western) (ie. # of identified secondary students in each region)

9. Information regarding the elementary gifted programs that feed into the secondary program.

10. Specific written descriptions of the gifted programs within the UCDSB (how are students screened? How are they identified? What is the range of placement options? What are the criteria for admitting a student to the secondary program? How does the program change at secondary level (currently grade 7-10) and the senior level (currently grade 11-12)? Who teaches the gifted students within the program? What is the required level of qualifications and training for teachers in the program? Are there different gifted secondary programs according to region? What is the contingency plan when the appropriate placement is not available within the student’s local region?)

11. Written policies in effect at G.V.S.S. and C.C.V.S. regarding gifted students in regular class placements.

12. Any and all written correspondence and notes of telephone conversations between the UCDSB personnel and OCDSB personnel with regards to the placement of the child and sibling in the congregated gifted program at the secondary school in Ottawa.

13. Information regarding proposed gifted programming at the Grade 11 and 12 levels at CCVS for the 2002-2003 school year.

Here is my proposed list of witnesses; you will note that some names are unknown.

List of witnesses

The appellant

Mr. N. Daigle

Mrs. E. Buckingham

Gifted consultant to be named

Mr. P. O’Brien*

Consultant A*

Mr. L. Poirier*

Consultant B*

Consultant C*

Teacher A*

Teacher B*

Student Teacher*

Teacher C*

Teacher D*

Teacher E*

Teacher F*

Mrs. G. Stevenson*

Gifted program coordinators of Eastern, Central and Western regions*

Current superintendent with responsibility for gifted education (if not already named)*

Current principal or persons responsible for organizing programs at CCVS*

Those persons with asterisks after their names will need to be summoned to appear.

Rationale for required documents/witnesses

Documents 1, 2, 3 and 12 are items of correspondence directly relating to the program proposed/offered or rendered to the child. Documents 4 to 11 and 13 relate to the existence (or non-existence) of gifted screening, identification and placement within the UCDSB. The statistics with regards to numbers are a matter of public record and thus, there should be no objection to producing them. The questions regarding elementary level students are relevant because the UCDSB claims to have a secondary gifted program and yet has no elementary programs “feeding” students into the higher levels. The relevance of the questions regarding other regions is that the UCDSB has arranged to transport the child out of their own jurisdiction. If there was/is an appropriate gifted placement in existence in the Central or Western region, what was the rationale for having the child transported to Ottawa? For the Tribunal to make a fully informed decision with regards to placement for the child they need to hear what services and programs the UCDSB provides for its gifted students, they need to hear how many gifted students are identified and where they are located and they need to know what is proposed for Grade 11 and 12. This is the only way that the Tribunal will be able to know whether or not the UCDSB has the resources in place to offer an appropriate placement to this student.

Mr. O’Brien was responsible for both the decision to send the child to the school in 2001/2002 and the arrangement to have him attend the school for 2002/2003. He will be questioned as to his rationale for these decisions.

Mr. Poirier was the principal of the school last year and was the chair of the October 25th IPRC meeting. It was his responsibility to ensure that the IEP was properly written and carried out.

Consultants A, B and C are special education consultants directly involved in planning and implementing the child’s IEP. I wish to question each of them with regards to what specific roles they played in the process.

Student teacher and teachers A, B, C, D, E and F were all directly involved in teaching the child, and were the actual people providing the services discussed in the IEP. I wish to question them with regards to their involvement in the writing of the IEP, how they implemented it, and how they continually assessed progress.

Mrs. Stevenson is, I believe, the current superintendent in charge of special education. She will be questioned regarding the current special education plan as it relates to the gifted exceptionality.

Gifted program coordinators (I do not have names) will be asked how the current special education plan is applied in their area. These witnesses are requested because there do not appear to be written documents describing this.

CCVS principal/program planner (if not already named) will describe for the Tribunal what will be offered should the child attend that school next year. You may recall from the last Tribunal hearing that no witness was present that could describe what exactly the secondary program would include. I hope to avoid such a situation this time around by calling the witness in advance.

Mr. Wyman, please let me know which witnesses and documents the Tribunal is willing to issue a summons for and I will fill out the appropriate forms and mail them to you. It would be unnecessarily cumbersome for me to fill out 16 to 20 forms, only to be told that only 10 (for instance) will be approved.

I wish to state explicitly that I wish to examine each and every document prior to the commencement of the hearing and that my list of documents and witnesses is subject to change as warranted by any new evidence or information that may come forth during the time period prior to the hearing.

Sincerely,

The Appellant

February 28, 2003

Appellant for the child

Cornwall, Ontario

Ms. Lynn Thomson

Counsel for the Upper Canada

District School Board

VIA ELECTRONIC MAIL to be FOLLOWED by REGULAR MAIL

Dear the appellant and Ms. Thomson:

The hearing resumed to hear preliminary issues raised by Ms. Lynn Thomson on behalf of the Upper Canada District School Board, in the matter of the child.

Attached you will find the decision by the Tribunal with respect to the preliminary matters raised during the hearing which was conducted by teleconference on February 17, 2003.

Sincerely,

Paula Barber, Chair

Enc.

Decisions by the Special Education (English) Tribunal in the matter of the child.

This hearing convened via teleconference to hear preliminary issues in the matter of the child. Tribunal members, Paula Barber, the Chair, Ms. Ann Fudge, Ms. Deborah Moskal, the appellant, Ms. Lynn Thomson, for the Respondent, the Upper Canada District School Board, Mr. Bill Wyman, the Secretary to the Tribunal and the court reporter participated in the hearing that was conducted on February 17, 2003.

Legal Framework

The Chair stated that the Education Act R.S.O. 1990, c.E.2, as amended, section 57, and the Statuary Power Procedures Act would guide the Tribunal.

Issues

Counsel for the Upper Canada District School Board raised three issues:

1. Jurisdiction of the Tribunal

2. Abuse of process

3. Mootness

Arguments

The Upper Canada District School Board’s Position

1. (a) Ms. Thomson’s position, on behalf of the Upper Canada District School Board (UCDSB), is that the appellant is seeking to have this tribunal enforce a decision of a previous tribunal with respect to the placement of the child. Ms. Thomson stated that this Tribunal must deal only with the Identification, Placement and Review Committee meeting (IPRC) of October 2001, and that the only issue that this Tribunal should be concerned with is whether the UCDSB failed to provide an appropriate gifted placement for the child in the school year, 2001-02. Ms. Thomson suggested that the Tribunal dismiss the appeal without a hearing.

2. (b) Ms. Thomson argued that the remedies related to program and compensation that the appellant were requesting were outside the jurisdiction of the Tribunal.

3. Ms. Thomson submitted that the appeal be dismissed without a hearing given the above argument and that the appeal is vexatious and was commenced in bad faith. As evidence for this request, Ms. Thomson used the statement in an e-mail from the appellant to a superintendent of the UCDSB in which the appellant stated that she would keep the issue of the placement of the child before a number of legal bodies until the child received the entitled placement.

4. The final argument by Ms. Thomson to have the Tribunal dismiss the appeal is the argument of mootness. Ms. Thomson stated that the child is no longer a student within the UCDSB. The Board is now transporting the child to a school in the Ottawa-Carlton District School Board (OCDSB).

Ms. Thomson is of the opinion that there has been an IPRC at the OCDSB subsequent to the October 2001 IPRC that is under appeal.

She argued, as well, that there is no assurance that the child will be enrolled in the UCDSB for the school year 2003-04 and that it is not useful to try to make a decision about what might happen in the future.

The Parent’s Position

1. The appellant stated that she is not trying to get this Tribunal to enforce the decision of another Tribunal. She stated that the Tribunal has jurisdiction for the IPRC October 2001, that followed the Tribunal decision released in September, 2001. She is requesting this Tribunal to consider an appropriate placement for her child within the UCDSB.

2. (a) The appellant stated that she believed that her attempts to have the Tribunal make a clear decision about an appropriate placement for her child is not vexatious nor an abuse of process.

(b) She also stated that the Tribunal knows what remedies that it can or cannot order and would like the Tribunal to make recommendations that would be considered by the Board regarding any remedies she has requested that fall outside the jurisdiction of the Tribunal.

3. The appellant stated that she did not take the child from the UCDSB and place him in the OCDSB. Rather, the UCDSB, through the superintendent, arranged to have the child transported to the OCDSB for a gifted placement.

Additional Issue

1. During the preliminary hearing, Ms. Thomson stated that if the Tribunal decided to proceed with a hearing, the Board was requesting that the appellant consent to allow the UCDSB to access the child’s Ontario School Record (OSR) that currently resides with the OCDSB. As well, she requested that the appellant consent to allow the UCDSB to access the OCDSB staff that deals with the child in school and during extra-curricular activities. She requested this information prior to the hearing so that the Board may adequately prepare its case.

2. The appellant did not agree to a carte blanche release of the OSR without knowing what information the Board was trying to get. She also stated that the Board had received the order from the Tribunal to release information to the appellant during the first part of the hearing that was convened a month ago, but she has yet to receive that information that the Board agreed to give her.

Reasons for the Decision

1. Notwithstanding the arguments put forward by the Board, the Tribunal rejects the arguments on jurisdiction, mootness and abuse of process.

The Tribunal believes that it is within its mandate to examine the IPRC decision of October 2001 that led to the establishment of an Appeal Board and subsequently this Tribunal. The right to appeal the appropriateness of a placement decision is a parent’s right under education legislation. The Tribunal accepts the parent’s argument that she is seeking to have the Tribunal make a determination of the most appropriate placement for her child within the UCDSB. By failing to hear the case, the Tribunal would be depriving the parent of the right to appeal the placement of her child.

2. With respect to the argument of mootness put forward by the Board, the Tribunal rejects that argument in that during the placement determined by the October 2001 IPRC, The child was a student within the UCDSB. It is this placement decision that the parent is appealing. The fact the child is now at another Board does not deny the parent the right to appeal the appropriateness of the placement of the 2001 IPRC decision. The fact that we are now into the 2002/2003 school year does not deprive the parents of the right to appeal the IPRC decision of October 2001, simply due to the passage of time.

There are conflicting accounts of how the child was placed in the OCDSB. The Tribunal believes that it would need to hear from witnesses and hear evidence on how this placement occurred. The documentation that would be presented at a hearing would clarify the details on this matter.

2. The Board has argued that the appeal should be dismissed without a hearing because of an abuse of process, stating in the written submission that “ this Tribunal can fairly question her [the appellant] bona fides in pursuing this matter yet again before another tribunal.”

The Tribunal is of the opinion that it is not vexatious nor “bad faith” to attempt to obtain an appropriate placement for a child and in fact, it is the right of parents to pursue this matter through a Tribunal hearing.

4. With respect to the additional issues related to the release of documents and access to personnel, raised at this hearing, the Tribunal suggests that the UCDSB specify what information it needs from the OCDSB personnel and subpoena those persons as witnesses, as needed. Personnel responsible for the OSR within the OCDSB can bring the OSR with them and can testify regarding information that may be in the OSR when they are called as witnesses.

Decision

The Tribunal has satisfied itself that it has the jurisdiction to hear the appeal and that it will hear the appeal.

Note

The Tribunal took note of the fact that, according to the appellant, despite the order from the preliminary hearing of January 16, 2003 that the Upper Canada District School Board release, to the appellant, the documents listed in the December e-mail correspondence, these documents have not been sent to the appellant. This comment was not contradicted by Ms. Thomson.

February 28, 2003

Paula Barber, Chair

On behalf of the Tribunal

April 1, 2003

Appellant for the child

Cornwall, ON

Ms. Lynne Thomson

Counsel for the Upper Canada District School Board

VIA ELECTRONIC MAIL to be FOLLOWED BY REGULAR MAIL

Dear Appellant and Ms Thompson:

This hearing was reconvened by teleconference on April 1, 2003, regarding the release of documents to the appellant by the Upper Canada District School Board. Paula Barber, the Chair, Ms. Deborah Moskal tribunal member, Ms. Lynn Thompson, for the Respondent, the Upper Canada District School Board and Mr. Bill Wyman, the Secretary to the Tribunal participated in the hearing.

The appellant was given the opportunity to participate and chose not to do so. The e-mail messages that she had sent to Mr. Wyman that stated that she had received “nothing” [documents that were included in the Order from January 23, 2003] from the Upper Canada District School Board were read into the record. Ms. Thompson, on behalf of the Board confirmed that “nothing:” had been sent by the Board to the appellant.

The Tribunal heard from Ms. Thompson that the package of information containing the documents that had been ordered to be released was in the process of being prepared and would likely be ready by the end of the week.

The Tribunal recessed and upon reconvening the hearing stated the order that is written and attached to this letter.

Yours truly,

Paula Barber

On behalf of the Tribunal

c. Mr. Bill Wyman,

Secretary to the Tribunal

Attach:

Order

The tribunal orders the Upper Canada District School Board to release the documents described in the Order dated, January 23, 2003 to the appellant, by April 15, 2003.

If any of the documents listed in the Order of January 23, 2003 are not included in the package that the appellant will receive by April 15, 2003, there must be an explanation included in the covering letter.

The tribunal requests Ms. Thomson to convey to her clients that if the documents are not released to the appellant, the Tribunal may draw a negative inference that the Board is withholding information because it could prejudice their case.

Paula Barber

Tribunal Chair

c. Mr. Bill Wyman

June 23, 2003

The Tribunal will grant Ms. Lynn Thompson, counsel for the Upper Canada District School Board until July 18, 2003 to submit the Closing Statements on behalf of the Upper Canada District School Board in the matter of the child.

Paula Barber

On behalf of the Tribunal