ONTARIO SPECIAL EDUCATION
(ENGLISH) TRIBUNAL
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B E T W E E N:
HA and GF
Appellants
-and-
Toronto District School Board
Respondent
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DECISION
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Adjudicator: Eva Nichols
Indexed as: HA v. Toronto District School Board
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WRITTEN SUBMISSIONS
HA and GF, Appellants
Fran Marinic-Jaffer, Counsel
Toronto District School Board, Respondent
Anthony Brown, Counsel
Introduction
1The Appellants filed this Appeal dated June 20, 2018 with the Ontario Special Education (English) Tribunal (“OSET”) using Form A. The Appeal Form was received on July 20, 2018. The Form A states the Appellants are appealing the student’s placement only, as determined by the Respondent school board. Their counsel’s November 9, 2018 correspondence to the Tribunal states they are appealing both identification and placement.
2On July 27, 2018, the Appellants provided a copy of the Statement of Decision from the Identification Placement Review Committee (“IPRC”), dated February 13, 2018. The IPRC Statement of Decision identified the student as having Communication Exceptionality: Autism and his placement as Regular Class. The placement setting is described as Regular Class with Resource Assistance. The Appellants stated on the form that they agreed with the identification and disagreed with the placement decision.
3The Appellants took the position that there had not been a Special Education Appeal Board (“SEAB”) hearing or school board decision because “the appeal was not provided within timelines set out in Regulation 181/98”. For this reason, the Appeal was filed directly with OSET.
4The Respondent was given notice of the Appeal on September 26, 2018.
BACKGROUND
5On October 5, 2018, counsel for the respondent wrote to request that:
the Appeal be dismissed due to lack of jurisdiction, or, in the alternative, dismissed as disclosing no prima facie grounds;
if the Appeal is not dismissed, the Appellants be ordered to provide particulars as to the changes that they are seeking to the placement; and
the time for filing a Form B Response be extended, pending a decision on the Respondent’s requests.
6I conducted two preliminary teleconferences with the parties on October 24, 2018, and November 22, 2018, seeking their submissions on the jurisdiction issue.
7The Respondent takes the position that the February 13, 2018 IPRC changed the student’s identification and placement in accordance with the Appellants’ request. Specifically, the identification was changed from Autism and Mild Intellectual Disability to Autism and placement was changed from Regular Class with Indirect Support to Regular Class with Resource Assistance.
8At the Appellants’ request, a second meeting of the IPRC was held on June 6, 2018 after which the identification and the placement remained unchanged on the Statement of Decision. As far as the Respondent was aware, both the identification and placement were, therefore, in accordance with the Appellants’ wishes.
9The Respondent takes the position that where parents agree with both the identification and placement, the OSET has no jurisdiction to consider other issues such as programs and services, including matters such as whether to assign a full-time Special Needs Assistant (SNA) to support the student.
10The Appellants take the position that the OSET has jurisdiction because they had indicated on the IPRC Statement of decision that they disagreed with the student’s placement and because the Respondent had not convened a Special Education Appeal Board (“SEAB”) to address this matter.
11Following the November teleconference I issued a Case Assessment Direction, in which I agreed to defer issuing a decision on jurisdiction, pending further discussions between the parties regarding the special education placement of the student and the contents and implementation of his Individual Education Plan. The parties agreed to notify the OSET of the outcome of these discussions.
12It was agreed that if the appeal is withdrawn as a result of these discussions, the OSET will close its file. If the appeal is not withdrawn, I would decide the jurisdiction issue.
13Following a meeting held between the parties on December 17, 2018, the Appellants wrote to the Respondents on January 8, 2019, to request the following:
Provision of a 1:1 assistant to support the student in his regular classroom setting for the whole morning period;
Provision of a safety plan over the lunch period to protect him;
Provision of resource assistance in the afternoons in the regular classroom by a qualified special education resource teacher, rather than providing resource assistance by withdrawal.
14On January 20, 2019, the Respondent replied, confirming that it would comply with the Appellants’ request regarding placement by ensuring that, effective immediately, the student will receive resource assistance from a special education teacher in the regular classroom, rather than in a withdrawal arrangement. The Respondent declined to agree to the other two requests, stating that these did not relate to either identification or placement.
15On January 30, 2019, the Appellants wrote to state that the Respondent's response was not acceptable to them and they still wish to pursue their appeal to OSET.
DECISION
16The Respondent has agreed to the Appellants’ requests for both the student’s identification and placement. Therefore, based on the analysis below, I find that the OSET does not have jurisdiction to hear this Appeal. The Appeal is, therefore, dismissed.
ANALYSIS
17Section 57(3) of the Education Act sets out the parental 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. (emphasis added)
18Where a respondent school board agrees to both the identification and placement sought by the parent, the parent or guardian has no right of appeal to OSET under the Act. In this case, the parents’ dissatisfaction is with programs and services and not the identification and/or placement cited in the Act.
19An IPRC meeting was held on February 13, 2018 for the student. On February 28, 2018, the parents sent back the IPRC decision form, indicating that they agreed with the identification (autism) but did not agree with the placement (regular class).
20On February 28, 2018, the Appellants’ representative emailed the Respondent stating that the parents wished to appeal the placement decision. In the same email, Dr. Jaffer stated that the parents were requesting a second meeting with the Respondent regarding their disagreement with the placement.
21A second IPRC meeting was convened on April 24, 2018. This meeting was deferred by mutual agreement between the parties. The IPRC was reconvened on June 6, 2018, and the February IPRC’s identification and placement decisions were confirmed on the grounds that both identification and placement were in accordance with the parents’ wishes. This was followed by the appeal to the OSET.
22The January 20, 2019 letter from the TDSB confirmed that the school board has agreed to implement the requested regular class placement with resource assistance being provided within the classroom by a special education teacher. This agreement fully satisfies the parents’ placement request.
23As stated above, the OSET’s mandate is set out in section 57 of the Education Act. The IPRC process is set out in Regulation 181/98. In order to assume jurisdiction, the OSET first must be satisfied that the parents are dissatisfied with either the child’s identification or placement or both and, having communicated this to the school board, following the decision of the school board relating to the recommendations of the SEAB, they are still dissatisfied because they were denied the identification and/or placement that they were seeking.
24The OSET may also assume jurisdiction in circumstances where the parents have requested a referral to a SEAB because of their dissatisfaction with the IPRC decision regarding identification and/or placement and the SEAB was not established and/or convened by the school board in accordance with the legislation.
25The Regulation is clear about the school board’s obligation to establish a SEAB in a timely manner, once an appeal is requested. The OSET’s jurisprudence has established that if a parent has not been through the SEAB process because the respondent school board did not comply with the request or delayed compliance for a period well beyond that specified in the Regulations, then the Tribunal may waive the SEAB requirement.
26If, however, a school board complies with the parents’ request for identification and/or placement, then it has no obligation to initiate the SEAB process and the OSET has no jurisdiction to hear an appeal. See, for example, WF v Ottawa Catholic District School Board, 2008 ONSET 4. This is a similar case to that where the respondent agreed with both the appellants’ identification and placement request. Therefore, there was no need to convene a SEAB and the absence of a SEAB does not automatically assure the OSET’s jurisdiction.
27While the OSET’s jurisprudence also demonstrates that it will sometimes address the matter of special education programs and services as well as accommodations, as part of an order for a particular placement, where the OSET has no jurisdiction to make a placement order, it cannot make orders for programs and/or services.
28In this instance, the Appellants have requested Regular Class placement. The IPRC in February, 2018, confirmed that the student’s placement will be Regular Class.
29Following the discussions between the parties on December 17. 2018, in which both parties agreed to participate, the Respondent confirmed that the placement will continue to be Regular Class with resource assistance. Further, that in accordance with the Appellants’ wishes, the resource assistance will be provided by a qualified special education teacher to the student in his regular classroom placement.
ORDER
30Having considered the parties’ submissions, and the fact that the Respondent has complied with the Appellants’ request for both identification and placement, the OSET has no jurisdiction to hear this Appeal. The Appeal is therefore dismissed and the file will be closed.
Dated at Toronto, February 13, 2019.
Eva Nichols
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Eva Nichols
Member