ONTARIO SPECIAL EDUCATION
(ENGLISH) TRIBUNAL
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B E T W E E N:
RW
Appellant
-and-
Toronto Catholic District School Board
Respondent
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INTERIM DECISION
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Adjudicator: Eva Nichols
Indexed as: RW v. Toronto Catholic District School Board
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WRITTEN SUBMISSIONS
RW, Appellant
Fran Marinic-Jaffer, Representative
Toronto Catholic District School Board, Respondent
Paul Matthews, Counsel
Introduction
1The Appellant filed this Appeal (Form A), dated June 21, 2018, with the Ontario Special Education Tribunal ("OSET") on July 3, 2018. On July 19, 2018, the OSET provided notice of the Appeal to the Respondent school board.
2The Appeal challenges the identification of the Appellant's son's (ST) exceptionalities. The Appellant concedes no Special Education Appeal Board (“SEAB”) hearing took place before she filed her Appeal.
3On July 25, 2018, the Respondent acknowledged receipt of the Appeal. The Respondent takes the position that, because there was no SEAB hearing, the Appellant has not exhausted all her rights of appeal and cannot proceed before the OSET.
4In the circumstances the OSET convened a case management teleconference on September 25, 2018. I heard from the parties and requested they provide further documentation for my consideration by October 5, 2018. Both parties complied with this direction.
5After careful consideration I am satisfied the OSET has jurisdiction to hear this Appeal. My reasons for this finding follow below.
background
6An Identification Placement Review Committee (“IPRC”) meeting for ST was held on December 14, 2017. The decision of the IPRC was emailed to the Appellant on December 21, 2017.
7On December 28, 2017, the Appellant responded by email indicating that she did not agree with either the identification or the placement set out on the decision form.
8On January 19, 2018, the Appellant's representative sent an appeal request to the Director of Education seeking to appeal both ST's identification and placement as determined by the IPRC.
9On January 19, 2018, the Director of Education emailed to acknowledge the appeal request and confirming the request had been forwarded to the appropriate staff at the Respondent
10A second IPRC meeting was convened on February 15, 2018. At that meeting the parties agreed to a mutually acceptable placement for ST.
11On February 20, 2018 the Appellant's representative emailed the Respondent confirming that, as a result of their agreement, the Appellant was withdrawing her appeal regarding placement, but that the original appeal request of the identification of ST's exceptionality remained outstanding. This email also stated that the family would like to try to resolve the exceptionality prior to proceeding to the appeal. The Director of Education acknowledged the email the same day and stated that he would discuss a potential path forward with the Superintendent of Special Services. There was no suggestion that the Respondent disagreed with the Appellant’s request or that the Respondent did not understand the request.
12On March 5, 2018, the Appellant's representative emailed the Director of Education asking for an update on the appeal process. On the same day, the Director responded that a reassessment was required in order to change ST's identification.
13And again on March 28, 2018, the Appellant's representative emailed the Director of Education “requesting an appeal update for ST.” This email referred to a school team meeting where the outstanding issue of ST’s identification had in fact been discussed, but was not resolved.
14On April 10, 2018, a further follow up email was sent to the Director of Education asking for yet another “appeal status update” for ST.
15On April 10, 2018, the Superintendent of Special Services wrote to the Director of Education. Her email was not copied to the Appellant or her representative. The Superintendent stated the family would be asked to come to an IPRC in the “near future”. She also commented that, in her opinion, there was never a formal request from the Appellant to change ST’s identification at the IPRC and therefore, “this is not an appeal”.
16The Appellant was invited to an IPRC on May 1, 2018. This meeting did not go ahead. A further IPRC was then set for June 4, 2018 to discuss ST’s identification.
17A June 27, 2018 email from the Respondent confirmed that the June 4 IPRC also did not proceed "due to the parent’s refusal to participate in an IPRC at this stage". The email also states that “change in identification and/or placement can only be facilitated through an IPRC”.
SUBMISSIONS ON JURISDICTION
18The Appellant submits that, while she co-operated with the Respondent throughout the spring of 2018, and attended several meetings to discuss ST’s identification and placement, she never withdrew the appeal request sent following the December 2017 IPRC and which was appropriately acknowledged by the Director of Education. ST's identification remained an issue in dispute. Despite this the Respondent failed to convene an SEAB. Therefore, the Appellant claims that she has effectively exhausted her rights of appeal under the Regulation. For these reasons, she requests the OSET assume jurisdiction for the matter and proceed to hold a hearing.
19The Respondent claims that section 24(1) permits the Appellant “to require the school board to hold a third IPRC”. The Respondent takes the position the Appellant's representative attended a third IPRC, on June 4, but then refused to permit the meeting to continue as an IPRC. By not agreeing to the section 24(1) IPRC, the Appellant has not exhausted all her rights of appeal under the Regulation.
20The Respondent also argues that the Appellant's references to an appeal never explicitly said the appeal was to a SEAB. In fact, what resulted following the December email was a second IPRC on February 7, 2018, an SBSCT meeting on March 23, 2018; and what should have been characterized as a third IPRC meeting on June 4, 2018.
26Finally the Respondent takes the position the OSET should not grant “the request for a SEAB and requests the parties convene a third IPRC where the matter is highly likely to resolve”.
the law
21Section 57(3) of the Education Act, RSO 1990, c.E2, as amended (the Act) , sets out the right of appeal to the OSET as follows:
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.
22Regulation 181/98 (the Regulation) under the Act sets out the process for the identification and placement of exceptional pupils.
23Section 24(1) of the Regulation states that a parent may request a second follow up meeting with the IPRC if the parent disagrees with the identification and/or placement decided by the original IPRC.
24Section 26 of the Regulation sets out the process for proceeding to a hearing by a SEAB. Subsection 26(4) requires the notice of appeal to indicate which of the decisions, (identification and/or placement) is disputed and include a statement of the nature of the disagreement.
25Section 26(5) confirms that the SEAB cannot reject or refuse to deal with an appeal based on any actual or alleged deficiency in the s. 26(4) statement or because the parent failed, in the SEAB's opinion, to accurately indicate in the notice of appeal the subject of the disagreement.
26Subsection 27(2) sets quick timelines for selecting the SEAB's chair and subsection 28(2) requires the SEAB to meet no more than 30 days after the chair is selected.
analysis
27In the normal course an appellant comes to the OSET after participating in a SEAB which has not resulted in a satisfactory identification and/or placement decision. The OSET is careful to respect that part of the statutory process. However, where a respondent has failed to comply with its obligations to establish and/or convened an SEAB in accordance with the Act and Regulation the OSET will hear an appeal.
29In this case, I am satisfied that the Appellant's communication following the December 2017 IPRC clearly stated she was dissatisfied with the IPRC decision and wished to appeal both identification and placement. I also find the acknowledgement from the Director of Education confirmed that the Appellant's intent was understood by the Respondent.
30Following a second IPRC, the Appellant agreed with the revised placement decision, but was not satisfied by the identification offered. There was a clearly expressed reference to “appeal of the identification”, in the follow up communication sent to the Respondent on February 20, 2018 and which was again acknowledged by the Respondent in an email sent on the same evening.
31I disagree with the Respondent’s statement that the Regulation either explicitly permits or expects a parent to participate in a third IPRC when they disagree with either the identification or placement offered to their child at the second meeting of the IPRC.
32The Regulation is clear about the school board’s obligation to establish a SEAB in a timely manner, once an appeal is requested. The Respondent’s statement that the Appellant did not explicitly say that she wanted the Respondent to convene an appeal board, rather than simply stating that she wanted to appeal the identification, is simply unreasonable. I do not accept, given the Director's earlier acknowledgement of the appeal and his February 20,2018 email, the Respondent did not understand the Appellant still wished to appeal ST’s identification.The Director of Education’s email of February 20, 2018 and the Principal’s email of February 26, 2018 both acknowledge the Appellant’s concerns about ST’s identification.
33Following the second IPRC meeting where ST’s placement was changed, the Appellant made it clear that she wished to appeal ST’s identification by seeking updates on the appeal process from the Director of Education.
34There was no obligation on the Appellant to attend yet another IPRC meeting almost six months after the IPRC meeting which decided ST's identification. I agree the Regulation contemplates a second IPRC but even this is not mandatory and there is no statutory requirement for a third IPRC meeting. Under the legislative scheme set out in the Regulation, school boards cannot substitute a series of follow up IPRCs for a SEAB, thereby denying parents their due process rights.
33My conclusion is consistent with the OSET’s jurisprudence which has established that if a parent has not been through the SEAB process because the school board did not comply with the request or delayed compliance for a period well beyond that specified in the Regulations, the appeal should be permitted to proceed. See S and S v Halton District School Board, 2005 ONSET 5; S. v Peel District School Board, 2006 ONSET 7; and MS v Ottawa Catholic District School Board, 2011 ONSET 4.
ORDER
40The Respondent is directed to complete and submit a Form B Response to the Application within 30 days of the date of this Interim Decision. The Form B must be submitted to the Tribunal and a copy must be sent to the Appellant.
41Following receipt of the Form B, the parties will be contacted to set hearing dates.
42In the meantime, the parties are encouraged to consider whether they are able to reach a resolution regarding ST’s identification.
Dated at Toronto, October 18, 2018.
Eva Nichols
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Eva Nichols
Member