JL v. Halton Catholic District School Board, 2020 ONSET 1

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

JL Appellant

-and-

Halton Catholic District School Board Respondent

DECISION

Adjudicator: Jennifer Scott Date: January 16, 2020 Citation: 2020 ONSET 1 Indexed as: JL v. Halton Catholic District School Board

APPEARANCES

JL, Appellant Self-represented

Halton Catholic District School Board, Respondent Nadya Tymochenko, Counsel

Introduction

1The appellant appealed the placement of her child (the “Pupil”) to the Ontario Special Education (English) Tribunal (the “Tribunal”) on August 6, 2019. The Pupil is 14 (almost 15) years of age and is in grade 9.

2The Pupil is identified as “gifted” by the respondent. The Pupil’s exceptionality identification is not in dispute on this appeal.

3The respondent takes the position that the Tribunal does not have jurisdiction to hear this appeal because the issues are not that of identification or placement, but rather, relate to the service of transportation that is being requested by the appellant. In the alternative, the respondent submits the Tribunal does not have jurisdiction to order the Pupil to be placed in the AP program (the placement sought by the appellant) because it is an optional program and not a special education program.

4The Tribunal finds that it does not have jurisdiction to hear this appeal because the appellant is not dissatisfied with the Pupil’s placement. Dissatisfaction is a statutory precondition to the Tribunal’s jurisdiction. Where there is no dissatisfaction with the Pupil’s placement, the Tribunal does not have jurisdiction to hear the appeal.

5These are the reasons for that decision.

THE LAW

6The Tribunal’s authority is set out in section 57 of the Education Act, R.S.O. 1990, c.E.2 (the “Act”). A parent or guardian of a child may appeal the identification and/or placement of the child if the parent/guardian has exhausted all rights of appeal and is dissatisfied with the identification and/or placement decision. Section 57(3) of the Act is set out below:

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)

7Placement is not defined in the Act.

8Although placement is not defined in the Act, other terms involving special education are defined. Exceptional pupil, special education program and special education services are all defined and they assist the Tribunal in understanding the meaning of placement. The definitions, set out in section 1 of the Act, are as follows:

“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.

“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.

9This legislative framework is relevant to the Tribunal’s decision on jurisdiction in this appeal.

BACKGROUND

The Placement Decision

10The Pupil was identified as gifted through an Identification Placement Review Committee (IPRC) process in June 2015 when she was in grade 4 and was placed in a special education (gifted) class with partial integration. The Pupil remained in a gifted class for grades 6, 7 and 8.

11An IPRC was held on March 26 and April 5, 2019 in preparation for the Pupil entering grade 9. The IPRC continued to identify the Pupil as gifted and placed her in a Regular Classroom with Resource Assistance. The respondent does not have self-contained gifted placements in high school.

12The appellant appealed the IPRC decision to a Special Education Appeal Board (the “SEAB”). The SEAB met on June 12, 2019 and later issued its written recommendations. The SEAB upheld the IPRC’s placement decision for the Pupil. The trustees of the respondent endorsed the SEAB’s recommendations and issued their decision in a letter to the appellant on September 4, 2019.

13The Pupil entered grade 9 in a regular class. She is participating in the Pre-Advanced Placement (AP) program in her regular class placement.

14The AP program consists of a cluster of courses designed to prepare students for accelerated learning. The courses are taught at a faster pace and some curriculum strands are taught in greater depth and breadth. Students take Pre-AP courses in grades 9, 10 and 11. In grade 12, they take AP courses and have the option of writing the AP exam, which is recognized by some universities for advanced credit.

15In grade 8, students apply to take Pre-AP courses in grade 9. Any student can apply, but acceptance is based on demand and a student’s grades. The higher the demand for Pre-AP courses in any given year, the higher the grades required for acceptance. The respondent offers the AP Program at three of its nine schools.

16The AP program is not a special education placement for gifted students in the respondent’s Special Education Plan.

The Appeal

17The appellant appeals the Pupil’s placement. She is asking for the placement to be changed from Regular Classroom with Resource Assistance to Regular Classroom (Pre-AP/AP/Academic) with Resource Assistance.

18The appellant is asking for this order for the Pupil alone. She is not asking that the Pupil be placed in the AP program at a specific school nor is she asking that the AP program be declared a special education program for all gifted students.

19The appellant is asking the Tribunal to insert courses – Pre-AP, AP and Academic – into the placement decision to ensure that the Pupil has access to these courses and to enable her to receive transportation from the respondent to her placement.

20The appellant believes if these courses are ordered by the Tribunal, they will become a special education placement for the Pupil. Under the respondent’s 2019 Special Education Annual Plan, transportation is provided by the respondent to special education classes and programs. The appellant is asking the Tribunal to remove the geographical barrier the Pupil faces in attending her current placement. The appellant states the Pupil requires one hour and 15/20 minutes to travel to and from her current placement and pays for public transit out of her own pocket.

21The question is whether the Tribunal has the jurisdiction to hear this appeal.

ANALYSIS

22The Tribunal’s authority is set out in section 57 of the Act. To assume jurisdiction, the Tribunal must be satisfied that parents have fully exhausted their rights of appeal concerning their child’s exceptionality identification or special education placement or both and that the parents are dissatisfied with the identification or placement decision or both. Both of these requirements must be met for the Tribunal to have jurisdiction to hear an appeal.

23There is no issue in this case that the appellant has exhausted her rights of appeal. The only issue is whether she is dissatisfied with the Pupil’s placement.

24The appellant’s stated reasons for her dissatisfaction with the IPRC’s placement decision, upheld by the SEAB, are: (a) it does not provide the Pupil with access to the AP program; and (b) it does not provide the Pupil with transportation to her placement. These concerns do not establish that the appellant is dissatisfied with placement, a statutory requirement for the Tribunal’s jurisdiction, for the following reasons.

25First, the Pupil has access to Pre-AP courses in her current placement. She has been taking these courses since the commencement of grade 9, in September 2019. If the Pupil already has access to Pre-AP courses, there can be no dissatisfaction with the Pupil’s placement for this reason.

26Second, the appellant’s dissatisfaction with the failure of the respondent to provide transportation does not establish dissatisfaction with placement. Put differently, dissatisfaction with a service or program does not mean dissatisfaction with placement. The Tribunal’s jurisprudence is clear that it does not have jurisdiction over an appeal about a service or program alone. This is because dissatisfaction about a service does not satisfy the statutory precondition of dissatisfaction about placement.

27This point was made by the Tribunal in W.F. v. Ottawa Catholic District School Board, 2008 ONSET 4 at page 14 where it stated:

Placement, which is not defined in the Education Act, is intertwined with programs and services. Therefore, when parents are in disagreement with placement, it is important that they state the grounds for their dissatisfaction clearly and specify the remedy that they are seeking. However, when the parents’ dissatisfaction is primarily or exclusively focused on such matters as programming, services, class size, the provision of education assistant support, staff qualifications, and so on, parents cannot expect the Tribunal to issue orders on these, because it does not have the jurisdiction to do so.

28The only exception to this general principle is when the service or program is intertwined with placement. In that case, dissatisfaction about the service or program may well result in dissatisfaction with placement. That is not the case here because transportation is not intertwined with the Pupil’s placement. The Pupil does not require transportation from the respondent to attend her placement as she has been attending all year without it. While transportation provided by the respondent may be a convenience for the Pupil, it not required for her to attend the placement.

29The effect of the appellant’s request is to essentially privilege gifted students who are taking Pre-AP and AP courses by providing them with transportation when their non-gifted peers are taking public transportation. That is not the purpose of special education. The provision of special education services is to ensure that special needs students have access to their special education program. It is not to provide a benefit unrelated to their program.

30The appellant has failed to establish that she is dissatisfied with the Pupil’s placement. The Pupil has access to the AP program in her placement and she does not require transportation to attend. In the absence of dissatisfaction with the placement, the Tribunal does not have jurisdiction to hear the appeal.

31In light of this finding, it is not necessary to address the question of whether the Tribunal has jurisdiction to order the Pupil to be placed in the AP program, an optional program and not a special education program.

ORDER

32The appeal is dismissed and the file will be closed.