ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
B E T W E E N:
C.R. and B. R. Appellants
-and-
HALTON DISTRICT SCHOOL BOARD Respondent
DECISION
Tribunal Members: Eva Nichols, Chair Janice Leroux, Member Jim McCaughey, Member
Date: February 15, 2011
Citation: 2011 ONSET 1
Indexed as: C. R. and B. R. v. Halton District School Board
ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
File #2010-02 (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 in 1994
BETWEEN
Mr. B. and Mrs. C. R., Appellants
-and-
The Halton District School Board, Respondent
Tribunal Members:
Eva Nichols Chair
Janice Leroux Member
Jim McCaughey Member
Appearances:
B. R. Parent
C. R. Parent
Nafisah Chowdhury Counsel for the Halton District School Board (HDSB)
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 a 16-year-old student of the Halton District School Board (HDSB). The student’s home school is recorded as the neighbourhood secondary school. The student has been identified by the HDSB with the exceptionality of Intellectual – Developmental Disability. The student’s special education placement is described as Self-Contained, a special education class full time.
3The issue before the Tribunal is to decide on the most appropriate special education identification and placement in the student’s best interests.
BACKGROUND
4The student was a resident student of the Halton Catholic District School Board (HCDSB) from 1998 to 2008.
5On March 26, 2001, the Identification Placement and Review Committee (IPRC) of the HCDSB identified the student as an exceptional student. The student’s exceptionality was recorded as Multiple, consisting of Behaviour, Communication – Language Impairment and Intellectual – Developmental Disability. The student’s placement was Regular Classroom with Resource Support.
6The student’s exceptionality and special education placement were maintained until the end of the student’s Grade 6 year in 2007.
7On October 25, 2007, the IPRC met again to consider the student’s identification and placement. The IPRC agreed to accede to the appellants’ request to remove the student’s identification. The IPRC Statement of Decision stated that the student is not exceptional and will be placed in a Regular Class.
8However, the IPRC recommended on its Statement of Decision that the student should continue to be identified as an exceptional student with Multiple Exceptionality and be placed in a Regular Classroom with Resource Assistance. Further, the IPRC recommended that the student’s school program be directed through an Individual Education Plan (IEP) and that the student continue to be supported by an educational assistant (EA).
9In September 2008, the appellants transferred the student to the HDSB. The appellants initially took the student to their local elementary school. Because of the student’s age (14 years and 3 months), the student was not considered eligible for elementary school attendance, even though the student had not completed a Grade 8 year in the elementary panel.
10HDSB special education program staff initially considered a placement for the student at a secondary school in the Future Life Skills program. However, they did not deem this placement appropriate to meet the student’s needs.
11Instead, the student was enrolled in a regional program for students with developmental disabilities, called “The Centre”. In this setting, the student had an alternative program. Throughout 2008-2009, the student continued at The Centre. During this time the student was not identified as an exceptional student, but did have an IEP.
12During that school year, the parents pursued their goal of transferring the student to a regular program at their neighbourhood secondary school. The parents reached an agreement with the HDSB that the student could attend that secondary school on a trial basis for five weeks, beginning in September 2009.
13Between September 8 and October 13, 2009, the student attended the regular Grade 9 program at the neighbourhood secondary school, taking four credit courses: one at the academic level, two at the applied level and one open-level course.
14On October 13, 2009, a meeting was held with the parents, school and board staff and a representative from the Ministry of Education to review the student’s program and attendance at the neighbourhood secondary school. As a result, the student was placed in an alternative self-contained program at the same secondary school, instead of continuing in the regular Grade 9 program or returning to The Centre. The student was still not identified as an exceptional student by the HDSB.
15The student attended the alternative program at the neighbourhood secondary school from October 14, 2009, until January 25, 2010. The student did not obtain any secondary school credits during this semester.
16On January 25, 2010, the respondent sent a letter to the appellants stating that the student was excluded from the neighbourhood secondary school for safety reasons. The appellants did not appeal this decision. The student has not been in attendance in any school since that date.
17On March 2, 2010, the IPRC, convened in response to parental request, identified the student as an exceptional student with an Intellectual – Developmental Disability designation and with a placement of Self-Contained - Special Education Class full time.
18On March 8, 2010, the appellants appealed the IPRC decision to the school board and to the Tribunal.
19On March 9, 2010, the appellants submitted an application to the Human Rights Tribunal of Ontario (HRTO).
20On April 26, 2010, the respondent agreed in writing to remove the student’s exceptionality designation and special education placement at the next IPRC. The appellants withdrew their appeal to the school board and to the Tribunal.
21On June 24, 2010, the IPRC met and confirmed the student’s identification as an exceptional student, the exceptionality designation as Intellectual – Developmental Disability, and the placement as Self-Contained – Special Education Class full time.
22On June 25, 2010, the parents appealed this IPRC decision to the Tribunal. The respondent questioned the Tribunal’s jurisdiction, because there had been no Special Education Appeal Board (SEAB) hearing in this matter.
23On September 8, 2010, the SEAB upheld the IPRC decision.
24On October 6, 2010, the HDSB upheld and endorsed the SEAB decision and recommendations.
25On November 4, 2010, the HRTO issued an Interim Decision, deferring the appeal, pending the outcome of the Tribunal hearing.
26On October 18 and 20, 2010, the parties participated in mediation with a mediator assigned by the Tribunal. The mediation did not resolve the dispute.
27On November 24, 25, 26 and 27, 2010, the Tribunal heard the appeal.
28On December 15, 2010, the Tribunal issued an Interim Decision in this matter, 2010 ONSET 3, without reasons, to facilitate the student’s return to school as soon as possible and no later than January 2011. The reasons included in this document are the reasons for the Tribunal’s December 15, 2010, interim decision.
POSITIONS OF THE PARTIES
29The appellants want the Tribunal to order the HDSB to remove the student’s identification as an exceptional student and to place the student in a regular academic program at the neighbourhood secondary school, without the support of an EA, but with the provision of behaviour, speech and language and occupational therapy supports.
30The appellants want the Tribunal to order the HDSB to provide the student with a placement in which the student can take academic, applied and open credit courses, leading to a Grade 12 graduation diploma.
31The appellants also want an assurance from the Tribunal that the programming, services and supports provided to the student in the placement at the neighbourhood secondary school will guarantee that the student can proceed to post-secondary education at the college or university level or at least enter an adult education program, such as the one offered at Gary Allen H. S.
32The respondent wants the Tribunal to dismiss the appeal in its entirety.
33The respondent wants the Tribunal to recommend that the parents consent to a full psycho-educational assessment for the student.
RELEVANT STATUTORY PROVISIONS
34The Tribunal’s authority is set out in section 57 of the Education Act, R.S.O. 1990, c. E.2, and the regulations made there under. The Tribunal’s procedures are governed by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal’s Rules of Procedure, and the rules of natural justice and procedural fairness applicable to administrative tribunals.
Education Act, R.S.O. 1990, c. E.2:
35Subsection 57 (3) of the Education Act sets out the parents’ right of appeal to the Tribunal:
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.
36Subsection 57 (4) of the Education Act sets out the Tribunal’s decision-making authority:
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.
37Subsection 57 (5) of the Education Act states that the decision of the Special Education Tribunal is final and binding on the parties to an appeal.
38Subsection 8 (3) of the Education Act sets out the requirements for identification programs and special education programs and services:
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,…
(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.
39Subsection 170 (1) of the Education Act sets out the duties of boards:
Every board shall,…
- special education programs and services – provide or enter into an agreement with another board to provide in accordance with the regulations special education programs and special education services for its exceptional pupils.
40Subsection 1 (1) of the Education Act includes the following definitions:
“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 by a committee, established under subparagraph ii of paragraph 5 of subsection 11 (1).
“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.
Health Care Consent Act, 1996, S.O. 1996, c. 2
41Section 1 describes the purposes of the Act as follows:
(c ) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive persona assistance services by,…
(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to;
42Section 2 (1) defines treatment as follows:
“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose.
43Section 20 (1) addresses the issue of another person giving consent to treatment:
If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described [as]:…
- A child or parent of the incapable person.
Substitute Decisions Act, 1992, S.O. 1992, c. 30
44Section 2 (2) of the Act addresses the issue of capacity as follows:
A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.
45Section 2 (3) sets out an exception to the above:
A person is entitled to rely upon the presumption of capacity with respect to another person, unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.
STATUTORY PROVISIONS CITED BY THE PARTIES
46Subsection 41 (5) of the Education Act sets the process whereby a student may take an alternative course or program if he or she is not competent to undertake a particular program or course of study. The process requires the consent of the pupil’s parents and the approval of the principal of the school.
47Subsection 265 (1) of the Education Act sets out the duties of a principal.
48Subsection 265 (1) (m) of the Education Act sets out the principal’s right, subject to an appeal to the board to refuse to admit to the school or classroom (i.e., to exclude) a person whose presence in the school or classroom would in the principal’s judgement be detrimental to the physical or mental well-being of the pupils.
49Sections 306 to 313 of the Education Act set out the criteria leading to the suspension and possible expulsion of students from a school for a period of time or to expulsion from all the schools of the board. These sections include the criteria and process for appealing a suspension or an expulsion, the obligation of the board to establish a program for suspended or expelled students, and the way in which a suspended or expelled student may return to school.
50Regulation 181/98: Identification and Placement of Exceptional Pupils sets out in subsection 17 (1) the following regarding special education placement:
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.
51Regulation 472/07: Behaviour, Discipline and Safety of Pupils sets out in subsection 2 the mitigating factors that should be taken into account when considering the suspension or expulsion of pupils from school.
The pupil does not have the ability to control his or her behaviour; 2. The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour.
The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
[52} Child and Family Services Act, R.S.O. 1990, c. C. 11
53Developmental Services Act, R.S.O. 1990
CASES CITED BY THE PARTIES
54Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241.
DOCUMENTS REFERRED TO BY THE PARTIES
55Guidelines on Accessible Education, Ontario Human Rights Commission, 2004.
56Halton District School Board Special Education Plan, 2007--2011.
WITNESSES
57Appellants’ witnesses listed in alphabetical order by last name:
Mr. Fidelis Abarowei educational assistant, HDSB
Mr. Ian Brandon special education co-ordinator, HDSB
Ms. Esther Choy behavioural consultant, Family and Community Behavioural Services, Children’s Developmental Services, Halton Region
Ms. Janice Hambrock principal of HOPES Program (Halton Opportunities Program for Expelled and Suspended Students), HDSB
Ms. C. R. the student’s mother and appellant
Ms. Joanne Schmidt occupational therapist, Community Care Access Centre, Mississauga and Halton Region
Ms. Roxanne Young manager of Behavioural Program, Children’s Developmental Services, Halton Region
58Respondent’s witnesses listed in alphabetical order by last name:
Mr. Gary Mahoney retired superintendent of special education, HCDSB
Ms. Marilee Manou speech-language pathologist, HDSB
Ms. Heather Knowles department head for “The Centre” , HDSB
Ms. Caroline Koekkoek psychological associate, HDSB
Ms. Joanne Parisi retired special education consultant, HCDSB
59The following witnesses appeared for both parties:
Mr. David Boag superintendent of education with responsibility for special education, HDSB
Ms. Maria McLellan principal of the neighbourhood secondary school, HDSB
SUMMARY OF EVIDENCE ON THE MERITS OF THE CASE
ISSUE #1: IDENTIFICATION
a) IPRC-related information
60Mr. Gary Mahoney, former superintendent for special education services for the HCDSB, testified that the student received a great deal of support from the start of [the student’s] enrolment with the HCDSB, even before a formal assessment had been done or an IPRC organized. These included one-to-one EA support and significant program modifications.
61The 2001 HCDSB IPRC Statement of Decision identified the student with Multiple Exceptionality, consisting of three specific exceptionalities: Behaviour, Communication -- Language Impairment, and Intellectual – Developmental Disability.
62Mr. Mahoney testified that on October 25, 2007, the HCDSB IPRC agreed to accede to the parents’ request to remove the student’s identification and placement designation “in the interest of maintaining a working relationship between home and school”. However, the IPRC Statement of Decision noted that the IPRC still recommended that the student’s school program be directed through an IEP and that the student continue to be supported by an EA.
63Mrs. R. testified that the appellants had a dispute with the HCDSB over the student’s identification as an exceptional student with developmental disabilities. She stated that the student required a specific medical diagnosis to be so identified by an IPRC.
64Mrs. R. testified that the student was not identified as an exceptional student when the student enrolled with the HDSB in September 2008.
65Mr. Ian Brandon, special education coordinator for the HDSB, testified that IPRC decisions do not automatically carry over when students transfer from another board to the HDSB. He stated that the student’s documentation is reviewed and, if it meets the HDSB’s criteria, then the student is referred to an IPRC.
66Mr. Brandon testified that he had not seen the IPRC Statement of Decision dated October 25, 2007, which indicated that the HCDSB agreed to remove the student’s identification and placement designations.
67Mrs. R. testified that she first requested an IPRC for the student from Ms. Kathy Schaffer, then superintendent of education with the HDSB, on February 13, 2009. The purpose of this request was to enable the student to transfer to the neighbourhood secondary school into a regular Grade 9 class with appropriate supports, but not as an exceptional student.
68Mr. Boag, superintendent for the HDSB, confirmed that the appellants requested an IPRC in February 2009. He stated that his predecessor, Ms. Schaffer, responded to this request on February 23, 2009. She wrote that since the student had never been identified as exceptional by the HDSB and the appellants had made it clear that it was not their intention to have the student identified as an exceptional student, there was no reason to hold an IPRC.
69Mr. Boag testified that an IPRC meeting was held on March 2, 2010, after the student was no longer in attendance at the neighbourhood secondary school. This IPRC had been arranged in response to the appellants’ request. The IPRC identified the student as an exceptional student with Intellectual – Developmental Disability and with a placement of Self-Contained Special Education Class full time. The appellants had been notified of the IPRC but did not attend.
70Mrs. R. testified that she wanted to have the student’s identification and placement removed from the March 2, 2010, IPRC Statement of Decision. She stated that this would enable the student to receive applied and open course credits at the secondary level and to continue to a post secondary education.
71Mrs. R. testified that on April 27, 2010, Mr. Boag agreed that the June 2010 IPRC would remove the student’s identification as an exceptional student.
72Mr. Boag confirmed that on April 27, 2010, following a meeting with the appellants, heagreed that “to find common ground and a place to move forward from”, the HDSB would remove the student’s identification and placement designation.
73Mr. Boag testified that on June 10, 2010 he wrote to the appellants. In this letter he stated that given their ongoing refusal to allow the implementation of home instruction and the related assessment process, the HDSB would proceed with arranging an IPRC for June 24, 2010. He clarified that the HDSB did not feel bound by the April 27 commitment to remove the student’s exceptionality designation and placement because the appellants “did not fulfill their obligations” of allowing a teacher-based assessment to enable the HDSB to initiate home instruction. He stated that therefore, “we (the HDSB) did not fulfill our end either”.
74Mr. Boag testified that the June 24, 2010, IPRC confirmed the student’s identification and placement, as originally determined by the March 2, 2010 IPRC.
75Mr. Boag testified that the HDSB does not use the Ministry of Education’s Multiple Exceptionality designation. He stated that, if necessary, the HDSB may identify a student with more than one exceptionality designation, but not as Multiple.
76Mrs. R. gave evidence that no agreement was reached during the SEAB meeting, despite the September 8, 2010, SEAB recommendations stating that there was an agreement regarding the student’s future education. Mrs. R. stated that clearly there was no agreement because “she had not signed any documents”.
77Mrs. R. testified that the student’s global developmental delay and intellectual disability labels put the student in a box where “everyone thinks the student cannot do anything, cannot learn and cannot achieve applied and open courses.” She stated that it was the same thing with IPRC’s and IEP’s.
b) Psycho-educational Assessment Information
78The respondent introduced into evidence the psycho-educational assessment administered in April 2000, when the student was a student with the HCDSB.
79Mrs. R. objected to the introduction of this assessment document. She stated that, given how “stale-dated” the test was, it cannot reflect accurately the student’s current functional levels. She cited the HDSB’s Special Education Plan, which states that test results are not considered accurate after three years.
80Mr. Mahoney testified that when the student was in Grade 6 with the HCDSB, the appellants stated that it was their expectation that, by the end of June 2006, when the student was 12 years old, the student would function at the Grade 6 level. At the same time, they would not consent to any psychological assessments to determine what [the student’s] needs were and how those could best be met to achieve the parents’ goal.
81Ms. Caroline Koekkoek, supervisor of special services, HDSB, a registered psychological associate, testified that the results of the psychological testing administered in 2000, showed that, on a measure of overall intellectual function, the student’s score was in the deficient range below the first percentile. Ms. Koekkoek stated that although this assessment was now very old, it did provide a useful historical picture demonstrating that the student had been significantly below [the student’s] peers in all the measures.
82Ms. Koekkoek testified that the HDSB’s Behaviour Action Team (BAT) recommended that the student be re-assessed, but did not receive parental consent for this.
83Mr. Boag testified that the HDSB’s repeated attempts to obtain parental consent to a psycho-educational assessment for the student were unsuccessful.
84Mrs. R. confirmed that she had consistently refused to give consent for psychological testing for the student. She cited a number of reasons for this refusal. She stated that their family physician, Dr. John Taylor, did not recommend such testing. She also stated that psychological testing was interpretive in nature and that different psychologists may not arrive at the same decision on the basis of the same assessment data.
85Mrs. R. explained that “they were scared” that a psychologist would inaccurately diagnose the student with a developmental disability, without having a sound medical or genetic reason for the diagnosis. Mrs. R. testified that because the student had not been diagnosed with autism, with fragile X syndrome or with any visible intracranial abnormalities, the student, therefore, cannot have an intellectual developmental disability.
c) Diagnostic and Medical Information
86Mrs. R. entered into evidence a letter from Dr. Taylor, dated September 28, 2009, stating that the student had been diagnosed with global developmental disorders. The letter also stated that “the condition has presented the student with many learning and behavioural challenges” and that “the student continues to face these challenges and requires ongoing intervention in these areas.”
87Mrs. R. entered into evidence a diagnostic imaging (MRI) report from the Hospital for Sick Children’s, ordered by the student’s paediatrician, Dr. Todd MacGregor. The report stated that intracranial abnormalities were not the cause of the student’s developmental delay.
88Mrs. R. testified that a geneticist at the Credit Valley Hospital diagnosed that the student did not have autism or fragile X syndrome. She stated that Dr. Taylor confirmed these diagnoses in his letter of September 28, 2009. The Tribunal noted that this information was not included in the letter entered into evidence.
89Ms Roxanne Young, manager with Halton Region Children’s Services, testified that she understood that the student had been identified with a global developmental disorder. She stated that within the developmental disability professional services community, this identification is interpreted as developmental disabilities. She stated that global developmental disorder is defined as demonstrating multiple developmental delays.
90Ms. Joanne Schmidt, occupational therapist, testified to the results of the student’s assessment with the Occupational Therapy Outcome Evaluation Tool administered on December 12, 2009, and January 21, 2010. In her testimony she discussed her recommendations. She stated that assistive technology software and alternative keyboards could potentially be of assistance to the student.
91Ms. Schmidt testified that, on the Beery Developmental Test of Visual Motor Integration, administered in June 2009, the student demonstrated an age equivalency of four years and four months. She stated that “it was not typical of other children she worked with” to require 25 minutes to complete a three-piece puzzle.
92Mrs. R. testified that she was concerned that Community Living required a specific diagnosis and cause for intellectual developmental disabilities. She stated that if the student did not have such a diagnosis, the student would not be able to access adult programming when the student reached 21 years of age. In spite of this concern, she reiterated that she would not agree to a psycho-educational assessment for the student.
93Ms. Koekkoek testified that a psycho-educational assessment and the identification of an exceptionality are not dependent on a medical diagnosis. She stated that psychologists and psycho-educational associates do not look for medical, genetic, or other similar diagnostic information, when considering a student’s most appropriate identification. She noted that the 2000 psycho-educational assessment did not include a diagnosis for the student. She confirmed that she did not diagnose the student with an intellectual disability.
94Mr. Boag testified that the HDSB did not have and did not require any medical diagnostic information for the student.
d) Behavioural Issues
95Mr. Mahoney stated that the HCDSB had offered social skill instruction, behaviour management and child and youth worker supports to assist the student in improving [the student’s] adaptive classroom behaviour. He stated that the student had to be consistently and closely supervised out of concern for [the student’s own] health and safety, as well as that of [the student’s] fellow students.
96Ms. Joanne Parisi, retired special education consultant with the HCDSB, testified about the findings of the Pryor-Linder Consultants’ Behaviour Management Report, dated January 2008. She stated that the report concluded that the student’s spontaneous and unpredictable behaviours needed close attention to ensure that the student did not continue to engage in the [then] noted behaviours, including property destruction, physical aggression, self-injurious behaviour and vocalizations. Based on this report, a behaviour management program was initiated for the student at school by the HCDSB.
97Ms. Parisi also testified that there was a “disconnect” between the student’s actual behaviours and the appellants’ perception of [the student’s] behaviours. For example, she stated that when it was pointed out that students who are 11 or 12 years old typically can walk to school on their own, can go to the store to purchase an item, look after their own personal care, and so on, the appellants stated that they would not want the student to be doing such things independently.
98Mr. Fidelis Abarowei, the student’s EA, described the Understanding and Managing Aggressive Behaviour (UMAB) training that he had received and its benefits for working with students with special needs. He stated that UMAB training was a Ministry requirement for working with difficult students and had proved helpful in working with the student.
99Mr. Abarowei testified that typically three EAs worked with the student at a given time at the neighbourhood secondary school. Mr. Abarowei also testified that the student could not be managed safely within a regular school setting. He described how the student’s behaviours frequently included hitting and kicking staff and students, and throwing books and materials at people.
100Mr. Abarowei testified that the school staff and the BAT worked together to modify the student’s program to eliminate or at least reduce the frequency of the most undesirable behaviours and to address staff’s safety concerns for other students.
101Ms Esther Choy, behavioural consultant with the Halton Region Family and Community Behavioural Services, testified that she contributed to HDSB reports and behavioural assessments. She stated that after making anecdotal observations, she brainstormed strategies and behaviour plans with BAT team members to support and assist with the student’s program.
102Ms Choy stated that she observed the neighbourhood secondary school’s staff implement specific aspects of the student’s behavioural plan. Ms Choy also stated that with consistency and persistence, any behaviour plan could be successful, as long as there is agreement and consensus about the stated goals.
103Ms Choy testified that the student’s behaviours, such as the limited level of independence in responding to school routines, were not typical of regular Grade 9 students.
104Ms. Young testified that if the parents were successful in removing the student’s diagnosis of global developmental disorder, then the Halton Region Behavioural Services could not continue to be involved with the student.
105Ms. Schmidt testified that during her first school visit, in December 2009, the student spent a lot of time rocking back and forth and kneading [the student’s] arms. It took the student about 25 minutes to initiate a task that the student was requested to do. She testified that on her second visit the student was even more agitated and she was unable to complete her assessment.
106Ms. Heather Knowles, lead teacher at the “The Centre”, testified that, although the student’s behaviour was challenging, the student was an appropriate candidate for “The Centre” program.
107Ms. Knowles described the changes in the student’s behaviour throughout the school year. At first, [the student’s] behaviour improved, as the student got to know staff, although the student had a hard time around the peer group. The student did not know how to socialize with people whom the student did not know.
108Ms. Knowles stated that after the first report card, [the student’s] behaviour deteriorated. As a result, all aspects of [the student’s] education deteriorated. In spite of this, Ms. Knowles stated that staff at “The Centre” were concerned and disappointed when the student left. They did not feel that the student would be able to manage in a regular Grade 9 program in a regular high school program.
109Mr. Boag testified that when the HDSB agreed to change the student’s placement to the neighbourhood secondary school in March 2009, it was made clear to the appellants that this move was not recommended by the HDSB. Further, a memo of understanding had been prepared setting out their behavioural expectations for the student in the new placement. The appellants did not agree and, therefore, did not sign the memo.
110Ms. McLellan, principal, testified that the information about the student’s behaviours was communicated to the school in a letter from Ms. Knowles, rather than through the usual channels of an IPRC or assessment data. Ms. McLellan described at some length the student’s behaviours, the way in which the school responded to these and how [the student’s] behaviour differed from the behaviour of other similar aged students at the school.
111Ms. McLellan testified that a student safety management plan was put in place for the student to protect the student, other students and school staff.
112Ms. McLellan also testified to the contents of a violent and aggressive incidents log, which listed 57 incidents between September 9, 2009 and January 10, 2010, involving the student. She described the involvement of the BAT and the development of a behaviour action plan for the student.
113Mrs. R. testified that on September 13, 2009, the appellants wrote to Dr. Taylor requesting his support for specific educational services for the student from the HDSB. The doctor’s letter recommended that the student access a behavioural therapist, a speech and language therapist and an occupational therapist. Dr. Taylor’s letter stressed that “these interventions, along with the safety measures already in place, would help to minimize the behavioural difficulties that the student is experiencing.”
114Mrs. R. testified that at home there had been no violent behaviours, similar to the patterns reported by the school. She stated that nobody is afraid of the student. However, she also stated that the student has no friends and is not involved in sports or social activities, such as going to the mall.
115Mrs. R. stressed the need for the HDSB to continue to support the student with behavioural therapy, occupational therapy and speech and language therapy. She also asked for continuing support for the student from the BAT, even if the student were no longer deemed exceptional.
116Mr. Boag testified that on January 25, 2010, he and principal McLellan sent a letter to the appellants notifying them that the student would be excluded from the neighbourhood secondary school because of [the student’s] aggressive behaviour, and the school’s safety concerns for the student and others, both students and staff. He confirmed that the student had not attended school after that date nor did the student receive home instruction.
e) Speech and Language Issues
117Ms. Marilee Manou, speech language pathologist, testified that the student has had a history of speech and language delays. The student was assessed in November 1999 and January 2003. At those times the student was not able to complete standardized tests and the assessor stated that the student had severely delayed expressive and receptive language skills.
118Ms. Manou assessed the student in December 2007, when the student was in Grade 7. She testified that [the student’s] scores were at the first percentile, indicating a severe language delay.
119Ms. Manou testified that her observational assessment of the student in November 2009, identified continuing severe problems in communication. She stated that these delays affected comprehension, attention, literacy, social language, and expressive language. She recommended standardized testing and an up-to-date psycho-educational assessment.
120Mr. Mahoney testified that the student’s social interaction difficulties both with peers and with adults related to [the student’s] serious limitation in language, as demonstrated in the various assessments carried out over the years.
121Mr. Abarowei testified that he had never witnessed the student having a conversation with any of the other students.
122Ms. Schmidt testified that she heard the student saying “only simple phrases” during her December 12, 2009, school visit.
123Ms. McLellan described the student in her evidence as a special needs student who is non-verbal.
f) Academic Issues
124Mr. Mahoney testified that throughout [the student’s] years with the HCDSB, the student had never functioned at grade level or accessed the Ontario curriculum. Mr. Mahoney stated that all reports and observational data demonstrated that the student continued to be well below age-appropriate levels in cognition, academics, behaviour, and social functioning. He stated that when the student was 13 years old, [the student’s] functional levels in numeracy and literacy were still at a mid-Grade 1 level.
125Ms Parisi stated that the student’s Grade 7 student profile showed reading at mid-Grade 1 level, limited skills in Grade 1 level math and similar Kindergarten to Grade 1 level achievement in other areas.
126Ms. Parisi testified that all reports available from Kindergarten through to Grade 7 indicated that the student was unable to access the regular curriculum because of [the student’s] observed deficits in intellectual ability, limited communication capabilities and behavioural difficulties. As a result, Ms. Parisi stated, the student had an alternative format report card throughout [the student’s] time with the HCDSB.
127Mr. Brandon testified that the student was not academically at grade level and had always received modified or alternative programming. He stated that the student had never accessed the regular Ontario curriculum at any time in [the student’s] school career.
128Ms. Knowles testified that at “The Centre”, the student was in very small classes. [The student’s] IEP set goals for life skills and communication development. The student was able to handle some very basic functional academics, such as basic addition with manipulatives, and participate in The Reading Circle program. [The student’s] report cards for the year at “The Centre” supported these observations.
129Mr. Boag testified that in 2009 he asked Ms. Susan Pritchard, coordinator of special education, to undertake some informal academic testing of the student, using the Woodcock Johnson III test. The results showed that the student was able to get through the first subtest only, after which the student stopped cooperating.
130Mr. Abarowei testified that he believed that the student did not understand any of the Grade 9 materials that were taught in the regular classroom. Further, he stated that the student was unable to copy notes from the board in any of the classes.
131Mr. Brandon testified that the student, when given a textbook, could not complete a task such as “turn to page 15”. He testified that the student clearly could not read Grade 9 textbooks.
132Ms McLellan stated that report cards from the neighbourhood secondary school for the first five weeks of the student’s attendance showed that the student had completed no class work in any courses. The student earned no credits during the first semester of the Grade 9 year, and all in-class marks were zero for all subjects.
133Ms. McLellan testified that the student clearly did not have the background to handle a Grade 9 academic or applied program. She stated that this was supported by [the student’s] teachers’ observations on the Grade 9 Observable Behaviours List for the student.
134Mrs. R. testified that the student was able to read a passage from a library book suitable for a regular Grade 9 student, and demonstrated this skill on their first visit to the neighbourhood secondary school. Mrs. R. stated that the student is able to read a story by sounding out the words and can complete both mental math and algebra homework. She testified that the student is able to take applied and open courses at high school, without the assistance of an EA.
135Mrs. R. stressed that the student needs to work independently so that the student can go to college. She stated that “the student needs to get off the EA’s, so that the student can live an independent life.”
ISSUE #2: PLACEMENT
a) HCDSB – Regular Class with Resource Assistance
136Mrs. R. testified that between September 1998 and June 2008, the student was always in a Regular Class placement with age-appropriate peers within the HCDSB.
137Mr. Mahoney testified that in the HCDSB, the student had indeed always been in a Regular Class. After the March 2001, IPRC, [the student’s] placement was Regular Class with Resource Assistance until the end of Grade 7. He stressed that this placement reflected the HCDSB’s policy of inclusion, which had been that board’s standard practice until 2009. Mr. Mahoney confirmed that this placement designation did not indicate that the student was functioning at an age-appropriate level in school.
138Ms. Parisi also confirmed that 99 percent of exceptional students or students with IEPs were in a regular class within the HCDSB until 2009.
b) Initial Placement within the HDSB
139Mr. Brandon testified that in August 2008, after the student’s transfer from the HCDSB to the HDSB, Mrs. R. initially contacted the principal of the local elementary school regarding the student’s enrolment in Grade 8.
140Mr. Brandon testified that Ms. Susanne Moffatt, special education coordinator, subsequently contacted Mrs. R. and informed her that since the student was 14, the student was age-appropriate for secondary school.
141Mr. Brandon stated that the appellants and HDSB staff attended two meetings at a secondary school to explore whether the Life Skills Future program was suitable. The student attended the second meeting. Mr. Brandon testified that, because the student was not academically at grade level, and given [the student’s] demonstrated lack of independence and need for substantial EA support, the student was not considered a suitable candidate for the program.
142Mr. Brandon stated that, after conferencing with colleagues, he recommended “The Centre” program, as an initial transition placement for the student. Mr. Brandon testified that he recommended this placement, because the student required an alternative curriculum and the support of staff with UMAB training. He testified that “The Centre” program provided a small class setting with constant supervision from more than one individual.
143Mr. Brandon stated that he and his associates did not review any medical documentation, as the basis for the student’s placement at “The Centre”.
144Mr. Brandon stated that it is not common practice to place non-identified students in “The Centre” program at any of the locations. He confirmed that student registration for “The Centre” program usually requires parental consent.
145Mrs. R. testified that Mr. Brandon told her that the student met the criteria for “The Centre” program after just 10 to 15 minutes of observation. She stressed that there was no IPRC at any time, while the student was at “The Centre”.
146Mrs, R. stated that there was no parental consent given for the student’s attendance at “The Centre”. The respondent did not contradict this evidence.
147Mrs. R. stated that in his letter, Dr. Taylor stated that a return to “The Centre” program was not in the student’s best interest “as clearly the student did not do well in this learning environment”.
148Ms. Knowles, in commenting that “The Centre” was the best placement for the student, also stated that the student had “good potential” to be successful in such a program. She stated that, in her judgement, the neighbourhood secondary school was not an appropriate placement for the student.
c) Neighbourhood Secondary School – Regular Class
149The student was in a regular Grade 9 class at the neighbourhood secondary school for five weeks between September 8, 2009, and October 13, 2009, on a trial basis.
150Mrs. R. testified that during the student’s initial visit to that school no one did any testing.
151Mr. Brandon testified that, during the student’s initial tour of the school, it was quite obvious that the student would present a number of challenges. Mr. Brandon stated that the student needed constant redirection when walking down the hall and that the student could not respond to simple commands.
152Mrs. R. testified that she believed the student’s placement should be in a regular Grade 9 classroom. She supported this by stating that Dr. Taylor clearly recommended that the student should take Grade 9 open and applied courses.
153Ms. McLellan testified to the degree of physical and staff supports that were in place for the student at her school.
154Mr. Boag testified that the student had received services and supports at secondary school that were beyond the level of services provided to any other student within the HDSB. Mr. Boag listed the following:
greater than three to one staff support between September 8, 2009 and December 18, 2009, which continued as three to one support until January 20, 2010;
two EA’s;
one behaviour support worker;
classroom and special education teacher;
BAT support of more than 200 hours;
special education co-ordinator support;
speech language pathology support of 18.5 hours;
occupational therapy support through CCAC referral; and
Halton Region Developmental Services for behaviour support.
d) Neighbourhood Secondary School – Self-Contained Programming
155After October 13, 2009, the HDSB placed the student in a self-contained program at the same secondary school with three to one staff support. The student remained in this placement until January 25, 2010, when the HDSB notified the appellants that the student was excluded from this school.
156Mrs. R. testified that the purpose of the January 8, 2010, meeting at the neighbourhood secondary school was to revise the student’s educational plan and to change the student’s applied and open courses to non-credit “K” courses.
157Mrs. R. stated that she found the student’s proposed educational plan unacceptable and pointed out that the Education Act states that parental consent is needed for any changes regarding “K” courses.
158Mrs. R. testified that the student’s exclusion from the neighbourhood secondary school was unacceptable and inappropriate.
159Mrs. R. testified that, in accordance with Regulation 181/98, section 17 and the Ontario Human Rights Commission’s Guidelines on Accessible Education, the Tribunal has no option but to order the HDSB to place the student in a regular Grade 9 program.
160Mr. Boag said that he believes in inclusion for socialization and communication. However, that works only if the programming in the placement meets the needs of the student and enables him or her to succeed.
161Mr. Boag testified that the student needs access to specialized programming and services. “Exposing the student to Grade 9 academic and applied programming is not only inappropriate but also irresponsible for a student who is pre-school level in terms of adaptive, communication, and academic skills”. Mr. Boag went on to say that “The student is a wonderful young person. We need to capitalize on [the student’s] strengths and needs and work from where the student is at, and that’s not in a regular classroom doing regular work.”
e) Halton Opportunities Program for Expelled Students (HOPES)
162Ms Janice Hambrock, Halton system principal responsible for safe schools, testified that the HDSB’s HOPES program was designed for suspended or expelled students, but not for excluded students.
163Ms. Hambrock clarified the HDSB’s approach for addressing suspensions and expulsions. She testified that students with intellectual disabilities are never suspended or expelled, because the legislation directs school boards to consider mitigating factors in determining how to respond to discipline issues. One mitigating factor that must always be considered is whether the behaviour causing the incident is a manifestation of the student’s disability. Further, Ms. Hambrock indicated that the HOPES program would not benefit students with intellectual disabilities, because of their inability to understand the foreseeable consequences of inappropriate behaviours and their inability to control their behaviour.
164Mrs. R. testified that the student had never been suspended or threatened with suspension or expulsion before the January 25, 2010, letter indicating the student would be removed from school.
165Mrs. R. testified that she believed that if the student had been suspended or expelled, the student would have been able to continue [the student’s] education through the HOPES program and continue to attend school. She stated that this would have been in the student’s best interest.
ISSUE #3: COMMUNICATION BETWEEN THE PARTIES
166Mr. Brandon testified that no formal documentation or assessment information was prepared or shared with the parents to initiate the student’s original placement at “The Centre”.
167Mrs. R. testified that she first saw the student’s 2008 and 2009 IEPs, when the appellants received the student’s Ontario Student Record in September 2010. She stressed that there had been no parental involvement in the preparation of those IEPs. The respondent did not submit any evidence to contradict this statement.
168Mrs. R. testified that the HDSB and in particular the principal of the neighbourhood secondary school were remiss in communicating with the parents about the student’s behaviour. She stated that they had not been informed about at least half of the alleged 57 violent incidents and situations that resulted in [the student’s] exclusion from the school.
169Ms. McLellan testified that communication with the parents was initiated after every incidence of reported aggressive behaviour. Regular meetings were held with the parents, to discuss matters of concern, including alternative programming and behavioural management plans. She stated that e-mails were exchanged on a regular basis and there were frequent telephone calls made to the home.
170Ms. McLellan also testified that, as the student was delivered to school and collected by an adult each day, there were daily opportunities for contact while the student attended the neighbourhood secondary school.
171Mr. Boag testified that there had been meetings at the neighbourhood secondary school on October 13, November 3, and November 19, 2009, to discuss with the parents the student’s ongoing lack of success and the school’s escalating concerns about [the student’s] behaviour. He stated that he and Ms. McLellan wrote to the appellants in January 2010, to explain what the student’s exclusion meant and to advise them about their next steps in getting the student back to school.
172Mrs. R. stated that in the January 25, 2010, letter the HDSB did not specify that the student had been excluded from the neighbourhood secondary school and the HDSB did not offer them any alternative program choices.
173The appellants introduced the respondent’s January 25, 2010, letter into evidence. In this letter, the HDSB stated that the board “will not be continuing the student’s program at the neighbourhood secondary school”. The letter went on to explain the HDSB’s authority within the Education Act to take this step. The letter also explained the parents’ rights of appeal and stated that the HDSB “would be happy to accommodate the student in one of [our] programs designed and equipped to meet the needs of students with the student’s learner profile in another school setting.”
REASONS
174In Eaton v. Brant County Board of Education, the Supreme Court of Canada held that a placement should always be in the child’s best interests. 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241; (1996) 31 O.R. (3d) 574; (1996) 142 D.L.R. (4th) 385.
ISSUE #1: IDENTIFICATION
175The appellants want the HDSB to remove the student’s identification as an exceptional student.
176The Tribunal noted that the HCDSB IPRC first identified the student as an exceptional student in March 2001. The HCDSB identified the student with Multiple Exceptionality, consisting of Behaviour, Communication – Language Impairment, and Intellectual – Developmental Disability. The parents signed the IPRC Statement of Decision, indicating their agreement.
177The Tribunal noted that the student’s identification as an exceptional student in 2001 was based on the April 2000 psycho-educational assessment, administered by the HCDSB. This assessment showed the student’s overall level of functioning to be in the deficient range in all areas assessed. The evidence showed that no subsequent psycho-educational assessment has been completed for the student. Despite the numerous efforts of both the HCDSB and the HDSB over the years, the appellants have consistently refused to consent to any further psychological or psycho-educational assessments for the student.
178The Tribunal accepted the appellants’ evidence, contained in two medical reports, that the student had been diagnosed with global developmental delay by a paediatrician.
179The Tribunal also accepted the appellants’ evidence, contained in the written report from the Hospital for Sick Children, dated August 6, 2003, that the magnetic resonance imaging (MRI) testing did not find any intracranial abnormality to account for the student’s global developmental delay.
180The Tribunal also accepted the appellants’ verbal evidence that genetic testing did not find that the student had fragile X Syndrome, which in some cases is believed to account for a diagnosis of global developmental delay.
181The Tribunal noted Mrs. R.’s testimony that as the student has not been diagnosed with autism, with fragile X Syndrome, or with visible intracranial abnormalities, the student cannot have an intellectual developmental disability. However, there was no expert evidence before the Tribunal to state that the absence of a formally diagnosed physical, neurological, or genetic cause eliminates the diagnosis of global developmental delay or another intellectual developmental disability.
182The Tribunal notes that the term global developmental delay is not an exceptionality definition used by school boards.
183The parents’ testimony included their reasons for not agreeing to any psychological assessments for the student. They stated that they were afraid that a psychologist would inaccurately diagnose the student with a developmental disability, without having a sound medical or genetic reason for such a diagnosis.
184The Tribunal notes that psychologists and psychological associates, who administer psycho-educational assessments, are not medical practitioners. They do not rely on a medical diagnosis to recommend an exceptionality identification to an IPRC. Instead, they focus on the student’s cognitive, behavioural, and academic functioning skills to identify strengths and needs and appropriate interventions to support the student.
185The Tribunal agrees with the evidence of witnesses for both parties that the assessment from 2000 is old and should not be relied on. The Tribunal also agrees with the appellants’ evidence that a 10-year-old assessment may not accurately reflect the student’s current intellectual functioning. Yet the HCDSB used the results of this assessment to maintain the student’s exceptionality identification between 2001 and 2007, and the HDSB also relied on this “stale-dated” assessment for its exceptionality identification of the student in 2010.
186The Tribunal heard evidence that an updated psycho-educational assessment is the pre-requisite to providing the most appropriate programs, services, and accommodations to meet the student’s needs in an educational setting. The Tribunal agrees that an updated assessment is critical at this juncture in the student’s schooling.
187The Tribunal accepted the testimony provided by most witnesses who described the student as a young person, who is experiencing significant learning problems. This reinforces the need for an up-to-date psycho-educational assessment for the student.
188The Tribunal accepted the evidence that described the student’s behaviour as “aggressive”, immature, and inappropriate for [the student’s] age. Both parties provided testimony about the student’s ongoing behavioural difficulties, which led to the student’s formal exclusion from the neighbourhood secondary school in January 2010.
189The Tribunal noted that the appellants, although they expressed significant concerns about the student’s behaviour in school, also stated that [the student’s] behaviour is fine at home and that [the student’s] aggressive behaviour at school was exaggerated.
190The Tribunal accepted the extensive witness evidence, presented by both parties, about the student’s ongoing communication difficulties and [the student’s] documented need for speech and language and occupational therapy supports.
191The Tribunal noted the contradictory information contained in the two parties’ witness evidence regarding the student’s ability to read, to comprehend information, to do math, to follow directions, and to function age-appropriately in school.
192The Tribunal determined that these contradictions about the student's academic skills, intellectual function, and behaviour will only be resolved through a full battery of academic and psycho-educational testing. The Tribunal considered the definition of exceptional pupil in the Education Act and determined that the student should continue to be identified as an exceptional student, in need of placement in a special education program. To determine the most appropriate identification and the student’s specific exceptionality or exceptionalities, new tests must be completed.
193The results of these new tests would assist in settling the differences between the appellant and the respondent on the issue of identification. More importantly, they would help to determine the student’s capacity to learn. They would also provide the appellant and school personnel with current reliable results, which would assist in making the most appropriate decisions about the student’s schooling today and for the future.
ISSUE #2: PLACEMENT
194With respect to placement, the appellants want the HDSB to place the student in a regular secondary school program at the neighbourhood secondary school without the support of an EA. It is their stated expectation that this placement will enable the student to obtain a secondary school graduation diploma and proceed to post-secondary education.
195The Tribunal noted but did not accept the appellants’ evidence that, in accordance with the Ontario Human Rights Commission’s 2004 Guidelines on Accessible Education and section 17 of Regulation 181/98, the Tribunal is obliged to order the HDSB to place the student in a Regular Class.
[196] The Tribunal noted with great concern the evidence that the student has not been attending school since January 25, 2010, in spite of the fact that the student is of compulsory school attendance age. The student has not been receiving home instruction during this period neither was there evidence that the student has participated in an alternative educational program.
197The Tribunal noted that during the period that the student attended elementary school within the HCDSB, [the student’s] placement was Regular Class with Resource Support. The Tribunal accepted the evidence that, although this was the standard placement for all exceptional students within that board until 2009, the student had clearly identified and well-documented special education needs. Further, the Tribunal noted that the student was always supported by a full time EA in the Regular Class placement within the HCDSB.
198The Tribunal did not accept the appellants’ statement that because the student was in a Regular Class placement within the HCDSB, therefore the student can function adequately and appropriately in a Regular Class placement in any school setting.
199Testimony from school personnel showed that the student has not worked within the Ontario Provincial curriculum throughout [the student’s] schooling with the exception of the first five weeks of the first semester of the 2009/10 school year, when the student was in Grade 9 at the neighbourhood secondary school. The Tribunal accepted the testimony that [the student’s] educational programming has always been modified or was alternative programming.
200The Tribunal accepted the respondent’s evidence that the student was not successful in the regular Grade 9 program and that the student did not benefit in any way from this placement. This evidence was supported by the fact that the student’s Grade 9 report cards showed that the student had received zero for all classroom work and that the student did not participate in any classroom activities.
201The Tribunal also accepted the evidence that the student did not benefit from the alternative program placement at the neighbourhood secondary school, despite the level of support that the student received and [the student’s] access to special education programs and services.
202The Tribunal noted the appellants’ desire to have the student attend the HOPES program. The respondent’s evidence showed how this program is inappropriate to meet the student’s needs. The Tribunal accepted the respondent’s evidence.
203The Tribunal accepted Ms. Knowles’s evidence that the student benefited from the program provided at “The Centre”. The Tribunal noted that this appeared to be the most enabling placement for the student after the student became a resident pupil of the HDSB. The Tribunal noted Ms. Knowles’s comments that the staff of “The Centre” were sorry to see the student leave and would be pleased to welcome the student back.
204The Tribunal noted that Dr. Taylor stated in his letter of September 28, 2009, that a return to “The Centre” is not in the student’s best interest, “as clearly [the student] did not do well in this learning environment”. However, the Tribunal noted that there was no evidence that Dr. Taylor had ever observed the student in this or any other learning environment.
205The Tribunal considered the potential placement options available in the HDSB:
a) Regular Class without support at the neighbourhood secondary school, as requested by the appellants;
b) alternative class placement at the neighbourhood secondary school;
c) placement at another high school within the HDSB’s jurisdiction;
d) the HOPES program; and
e) one of “The Centre” programs, provided to students with special needs.
[206] The Tribunal determined, based on both parties’ evidence, that the student will continue to need and benefit from access to appropriate special education programs and services for the foreseeable future. The nature and intensity of the programming, the specific services and whether the student would benefit from accommodations, such as the use of a computer, will need to be determined after the student has had an up-to-date assessment. In the meantime, the student should be in school. The responsibility for ensuring this lies with both parties.
207The Tribunal noted the appellants’ concerns that students who are identified as exceptional and those who take modified courses during their secondary school years cannot participate in post-secondary or adult education programs, but it found these concerns to be unfounded and not supported by evidence.
208The Tribunal also noted the appellants’ concerns about the student’s potential future access to programs and services available through Community Living Ontario, if they are not able to provide a medical diagnosis or specific cause for the student’s cognitive difficulties. There was no evidence provided to support this concern.
209The Tribunal determined, based on the evidence, that in the absence of an up-to-date assessment, consisting of a full battery of academic and psycho-educational testing, it is not possible to identify:
the most enabling placement for the student;
the special education programs, services and accommodations that will benefit the student in that placement; and
the supports that will enable the student to be as successful as possible in [the student’s] secondary education and beyond.
210The Tribunal’s order to the HDSB to implement an interim full-time special education placement for the student will provide time for these assessments to be completed, time for an IPRC to be conducted to discuss all of the findings, and time for the student to return to school and continue to receive an education.
ISSUE #3: COMMUNICATION BETWEEN THE PARTIES
211The Tribunal accepted the appellants’ evidence that they did not consent to the student’s placement at “The Centre” and that the student had an IEP during the 2008-09 school year, which had been developed without parental involvement or agreement. The respondent did not offer any evidence to counter these statements.
212The Tribunal noted that, although both parties stated that they focused on what they believe to be in the student’s best interest, there was very little effective communication and collaboration between the parties. The Tribunal believes that this needs to change when the student returns to school on a full time basis.
REASONS FOR ISSUING AN INTERIM DECISION
213On December 15, 2010, the Tribunal issued an Interim Decision to the parties, 2010 ONSET 3, citing the following reasons:
a) The student has not been attending school since January 25, 2010, when the HDSB excluded the student from the neighbourhood secondary school, in accordance with subsection 265 (1) (m) of the Education Act. The HDSB offered Mr. and Mrs. R. the opportunity to enrol the student in an alternative educational placement or to provide home instruction.
b) In accordance with subsection 21 (1) of the Education Act, the student should be in attendance in school until the student is 18 years of age or participate in an equivalent learning program. This is not currently happening.
c) The 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.
INTERIM DECISION
214In 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.
215The 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
216The Tribunal orders the HDSB to maintain the student’s identification as an exceptional student.
217The 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, the student is presumed to be 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/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 student’s capacity to make an informed decision about an assessment arise.
218The 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 [the student’s] 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.
219The Tribunal orders the HDSB to arrange an appropriate interim Self-Contained Special Education Class placement for the student in consultation with [the student’s] parents.
RECOMMENDATIONS
[220] The Tribunal recommends that the HDSB develop an Individual Education Plan (IEP) for the student following the IPRC referred to in its orders, in accordance with the timelines set out in the IEP Standards document and in full consultation with the student and [the student’s] parents.
221The Tribunal recommends that the IEP developed for the student reflect the up-to-date assessment information, including the behavioural, speech and language, and occupational therapy assessments and include an appropriate transition plan. The transition plan should include a detailed plan for the student’s education until the student is 21 years old and identify what post-secondary options are available to the student for ongoing education, independent living and gainful employment.
222The Tribunal recommends that, when developing the student’s transition plan, the HDSB consult with appropriate community agencies, including but not limited to Community Living Ontario.
223The Tribunal recommends that, in the student’s best interests, both parties, the parents and the school board, focus on improving and enhancing their communication, collaboration, and ongoing mutual supports to enable the student to achieve [the student’s] potential.
Eva Nichols, Chair
Janice Leroux, Member
Jim McCaughey, Member
February 15, 2011