ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
B E T W E E N:
B. R. and C.R.
Appellants
-and-
HALTON DISTRICT SCHOOL BOARD
Respondent
INTERIM DECISION
Tribunal Members: Eva Nichols, Chair Janice Leroux, Member Jim McCaughey, Member
Indexed as: B. R. v. Halton District School Board
ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
File #2010-02
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 June 1994
BETWEEN
Mr. and Mrs. B. R., Appellants
-and-
The Halton District School Board, Respondent
INTERIM DECISION
Tribunal Members:
Eva Nichols Chair
Janice Leroux Member
Jim McCaughey Member
Appearances:
Mr. and Mrs. B. R. Parents
Nafisah Chowdhury Counsel for the Halton District School Board (HDSB)
Mr. David Boag Superintendent of Education for the HDSB
Louise Sibbald Secretary
The hearing on the merits was held on November 23, 24, 25 and 26, 2010, in Oakville, Ontario.
INTRODUCTION
1On June 25, 2010, the appellants appealed to the Ontario Special Education (English) Tribunal (the “Tribunal”). The appellants did not agree with the Halton District School Board’s (the “respondent”) decisions regarding their child’s special education identification and special education placement.
2The student is 16 years old. The student has been identified by the HDSB with the exceptionality of Intellectual – Developmental Disability. The student’s special education placement is Self-Contained, a special education class full time.
3The issue before the Tribunal is to decide the most appropriate special education identification and placement that are in the student’s best interests.
REASONS FOR ISSUING AN INTERIM DECISION
4The student has not been attending school since January 25, 2010, when the HDSB excluded the student from the local high school, in accordance with Subsection 265 (1) (m) of the Education Act. The HDSB offered the appellants the opportunity to enrol the student in an alternative educational placement or to provide home instruction.
5In accordance with Subsection 21 (1) of the Education Act, the student should be in attendance in school until 18 years of age or participate in an equivalent learning program. This is not currently happening.
6The Tribunal is releasing this Interim Decision with reasons to follow in order to facilitate the student’s return to school as soon as possible and no later than January 2011.
DECISION
7In accordance with Subsection 57 (4) of the Education Act, the Tribunal grants the appeal of the student’s specific exceptionality identification and dismisses the appeal of the student’s placement at this time.
8The Tribunal will remain seized of this matter until June 30, 2011, to decide any disputes that may arise in respect of the implementation of its orders.
ORDERS
9The Tribunal orders the HDSB to maintain the student’s identification as an exceptional student.
10The Tribunal orders the HDSB to arrange a full psycho-educational assessment for the student as soon as possible, in order to identify the student’s strengths and needs and to determine the most appropriate ways to meet the student’s academic, behavioural and communication needs. As the student is sixteen years of age, it is presumed that the student is capable to consent to such an assessment (see the Health Care Consent Act 1996, S.O. 1996, c. 2 Schedule A, s. 1(c)(iii) and the Substitute Decisions Act, 1992, c. 30 s. 2(2) and (3)). These Acts indicate that everyone who has attained 16 years of age is presumed to be capable to make their own treatment decisions, unless the person doing the assessment has reasonable grounds to believe that he or she is incapable of making those decisions. As an assessment is clearly in the student’s best interests, the Tribunal expects the student’s parents to encourage the student to consent to an assessment and to facilitate that assessment, including giving substitute consent for the student, should any issue regarding the capacity to make an informed decision about an assessment arise.
11The Tribunal orders the HDSB to arrange an Identification Placement Review Committee (IPRC) meeting as soon as possible after the psycho-educational assessment results are available. At this IPRC, the student’s category or categories and specific exceptionality or exceptionalities are to be determined. The IPRC must also determine the most enabling placement for the student to meet all identified strengths and needs. The IPRC Statement of Decision will also identify the appropriate programs, services and accommodations that will be provided to meet those needs.
12The Tribunal orders the HDSB to arrange an appropriate interim self-contained special education class placement for the student in consultation with the parents.
13The Tribunal’s full decision with reasons will be issued within the timelines set out in the Tribunal’s Rules of Procedure.
Eva Nichols, Chair ________________________________
Janice Leroux, Member ________________________________
Jim McCaughey, Member ________________________________
Date December 15, 2010