ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
B E T W E E N:
C. S. and C.S.
Appellants
-and-
HALTON CATHOLIC DISTRICT SCHOOL BOARD
Respondent
SUPPLEMENTARY DECISION
Tribunal Members: Eva Nichols, Chair
Ross Caradonna, Member
Julie Lindhout, Member
Indexed as: C. S. v. Halton Catholic District School Board
ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
File #2009-03 (b)
IN THE MATTER OF the Education Act, R.S.O. 1990, c. E.2, as amended, ss. 57(3),
IN THE MATTER OF Ontario Regulation 181/98,
AND IN THE MATTER OF the minor child, born 1994
BETWEEN
Mr. and Mrs. C. S., Appellants
-and-
The Halton Catholic District School Board, Respondent
Tribunal Members:
Eva Nichols Chair
Ross Caradonna Member
Julie Lindhout Member
Parties:
Mr. and Mrs. C. S. Parents
Nadya Tymochenko Counsel for the Halton Catholic District School Board (HCDSB)
This supplementary decision is based on the submissions received from the Parties.
INTRODUCTION
1On June 9, 2010, the Ontario Special Education (English) Tribunal (the “Tribunal”) issued its decisions and orders, 2010 ONSET 1, in this Appeal.
2The Tribunal’s decision was the following:
In accordance with Subsection 57 (4) of the Education Act, the Tribunal grants the appeal.
The Tribunal will remain seized of this matter until the end of the student’s first semester in Grade 11 in January 2011, to decide any disputes that might arise in respect of the implementation of its orders.
[3] The Tribunal issued the following orders:
The Tribunal orders that the HCDSB comply with its own decision of October 6, 2009 to accept the recommendations of the Special Education Appeal Board (SEAB) and identify the student as an exceptional student, with the dual exceptionality of Communication – Learning Disability (Dyslexia) and Intellectual – Giftedness and ensure that this identification is consistently recorded on all documentation for the student.
The Tribunal orders that the student’s special education placement be Regular Class with Withdrawal Assistance. In this placement the HCDSB is to provide appropriate programming and accommodations to meet both of the identified exceptionalities, Communication – Learning Disability (Dyslexia) and Intellectual – Giftedness.
The Tribunal orders that an Identification Placement Review Committee (IPRC) be convened as soon as possible before the start of the 2010/11 school year to determine the specific components of the student’s special education program to meet the dual exceptionality needs in Grade 11, based on the Tribunal’s orders and the recommendations listed below.
The Tribunal orders that the HCDSB correctly record the exemption from the French language compulsory credit for secondary school graduation in the Individual Education Plan (IEP) and Ontario Student Record.
The Tribunal orders that the HCDSB comply with its own agreement to update the student’s psycho-educational assessment data to meet the stated requirements of Ontario universities for the admission and accommodation of students with learning disabilities.
4The Tribunal issued a number of recommendations related to programming, which were based on reasons derived from the expert evidence presented to and accepted by the Tribunal.
BACKGROUND
5On July 2, 2010, the Appellants wrote to the Tribunal, and expressed their concerns that HCDSB was not accepting or implementing the Tribunal’s decision and asked for the Tribunal’s intervention. They cited the IPRC Statement of Decision, issued on June 29, 2010, as the grounds for their request for intervention.
6On July 10, 2010, the Tribunal invited the HCDSB to provide a written response to this correspondence.
7On July 23, 2010, Ms. Tymochenko, the School Board’s representative, responded to the Tribunal. She stated that the Board disputes that it has failed to accept the Tribunal’s Orders and Recommendations, as alleged by the Appellants. She further stated that “in the opinion of the Board, the Tribunal cannot Order the Board to implement specific educational programming.” However, she stressed the Board’s “commitment to providing the student with appropriate programming to meet the identified needs”.
8On July 26 and again on August 17, 2010, the Tribunal invited the Appellants to respond to the School Board’s correspondence.
9On August 20, 2010, the Tribunal received the parents’ submission to the Director of Education and the trustees of the HCDSB. The Appellants stated that they had accepted the Tribunal’s decision, orders and recommendations regarding the most appropriate special education identification and placement for the student and concur that these are in the best interest of the student. However, they were concerned that the IPRC Statement of Decision did not reflect these.
10On August 30, 2010, a teleconference was held with the Parties and the Hearing Panel. The Tribunal recommended that the Parties meet with the appropriate staff of the Secondary School to discuss the student’s timetable and programming for the first semester of Grade 11.
11The HCDSB requested that the Mediator who had worked with the Parties prior to the hearing in March 2010, Tribunal member Mr. Jim McCaughey attend the planned meeting to facilitate communication between the Parties. The Tribunal agreed to this request.
12On September 3, 2010, a meeting was held at the Secondary School. Mr. Jim McCaughey acted as a facilitator at this meeting.
13On September 20, 2010, and again on October 7, 2010, Ms. Tymochenko requested further mediation assistance from the Tribunal for an upcoming Individual Education Plan (IEP) meeting.
14On October 12, 2010, the Tribunal notified the Parties that no further mediation would be provided to the Parties for the purposes of discussing the implementation of the Tribunal decision of June 9, 2010.
15On October 12, 2010, the HCDSB stated in an e-mail to the Tribunal that the student’s IEP is compliant with the Tribunal’s Order.
16On October 13, 2010, the Tribunal invited both Parties to make submissions regarding the parents’ concerns that the HCDSB was not accepting or implementing the Tribunal’s decision of June 9, 2010.
17The Appellants submission was received on October 26, 2010. The HCDSB’s submission was received on November 9, 2010.
18The Hearing Panel convened on November 15, 2010, to consider these submissions.
THE PARENTS’ ALLEGATIONS REGARDING THE HCDSB’S NON-COMPLIANCE AND THE HCDSB’S RESPONSE
19The Tribunal does not accept the parents’ allegation that the Halton Catholic District School Board has not accepted or implemented the Tribunal’s decisions and orders.
20The Tribunal notes that the HCDSB held an IPRC on June 29, 2010.
21The Tribunal further notes that the IPRC Statement of Decision and the IEP both record the exceptionality accurately and in accordance with the Tribunal’s order.
22The Tribunal further notes that the student’s IEP accurately records the exemption from the compulsory French credit and references the plans for providing an updated psycho-educational assessment before the end of the Grade 11 year.
23Therefore, the Tribunal finds that the HCDSB has accepted and implemented four out of the five orders contained in its decision.
24However, the Tribunal does not find that the HCDSB is in full compliance with the Tribunal’s decision and orders. The Tribunal finds no evidence demonstrating that the HCDSB has considered all of the Tribunal’s recommendations in its programming decisions, as was stated in Ms. Tymochenko’s submission.
25The Tribunal acknowledges that it cannot order school boards to implement specific educational programming to comply with its recommendations. However, it should be noted that the recommendations included in the Tribunal’s decision reflect the expert evidence put forward at the hearing by the HCDSB’s own expert witnesses. This evidence was accepted by the Tribunal, as reflecting the student’s best interests. Further, the Tribunal notes that the order related to placement states that in this placement the student must have appropriate programming and accommodations to meet both the identified exceptionalities.
26The Tribunal finds that the special education programming and accommodations, as outlined in the IEP, do not reflect the Tribunal’s orders and recommendations. This is particularly evident in relation to the programming and accommodations offered to meet the student’s gifted identification.
27The Tribunal recommended in its decision of June 9, 2010, that programming to meet the student’s needs as a gifted student consist of three components. These are:
Accelerating the curriculum to enable the student to make faster progress in math;
Providing appropriate enrichment opportunities in math, and
Providing a regularly time-tabled opportunity to work with other gifted and high-achieving math students in a cluster or withdrawal program.
28These recommendations focused on meeting the student’s needs as a gifted student and enabling the student to build on identified strengths. The goal is not necessarily to give an extra credit in math in Grade 11. Instead, the goal is to enable progress faster through Grade 11 math. This would give the student extra time for enrichment, for acceleration, for working together with gifted peers and/or for other activities that might benefit the student, such as being able to complete the course faster and making a start on the next sequential math course of the student’s choice. This would result in greater compliance with the Tribunal’s orders for programming and accommodations in the current special education placement and would reflect Dr. Edmunds’ expert opinion regarding gifted programming and accommodations for the student.
29The proposed ILC credit, which has apparently been declined, is not, in the Tribunal’s opinion, a suitable way to provide gifted programming to the student, especially given the student’s dyslexia and the needs related to this exceptionality.
30Similarly, the apparent pressure to take the Data Management credit seems inappropriate. When it comes to selecting math or any other subject credits, the primary decision-maker has to be the student. If the student does not wish to take Data Management, then the student should not be required to do so. While such a decision is outside this Tribunal’s mandate, it is the Tribunal’s hope that the student will be supported in making such decisions now and in the future.
31Relying on the expert testimony given at the hearing in March 2010, the Tribunal is satisfied with the writing support for the LD (Dyslexia) that the student appears to have access to at this time. The Tribunal’s recommendation, based on that expert evidence, was that the support should be available “as needed”, or as requested by the student. This does not mean that it should be or needs to be regularly timetabled for the same time or the same day each week. The student should be the primary determiner of how, when and what should be provided.
DECISION
32The Tribunal upholds its decision and orders of June 9, 2010, 2010 ONSET 1, and will not issue any additional orders at this time.
33The Tribunal will not convene a further hearing or teleconference at this time.
34The Tribunal urges the Parties to focus on the student’s best interests in implementing the existing Tribunal decision and orders and to consider the recommendations when determining how to provide the programming and accommodations referred to in the placement order.
35The Tribunal will continue to remain seized of this decision. That means that the Appellants retain the right to contact the Tribunal about any further disputes that may arise relating to the implementation of the decision of June 9, 2010.
36The Tribunal confirms that it will not provide any further mediation or facilitation support to the Parties in this appeal. It believes that the Parties still wish to achieve an improved level of co-operation and collaboration, which enables them to focus on the student’s best interests, without ongoing disputes or disagreements. This will only happen through improved communication between the Parties. However, facilitating that improved communication is outside the Tribunal’s mandate.
37Lastly, the Tribunal once again wishes to compliment the student on the achievements and the excellent marks achieved at the end of Grade 10. We are confident that with the encouragement and positive support of the adults involved in the student’s education, i.e., parents and teachers, the student will achieve the desired goals.
Eva Nichols, Chair ________________________________
Ross Caradonna, Member ________________________________
Julie Lindhout, Member ________________________________
Date November 18, 2010