Ontario Special Education (English) Tribunal
Between:
F.Y. and L.B.
Appellants
-and-
Toronto District School Board
Respondent
Interim Decision
Adjudicator: Noeline Paul
Date: July 29, 2020
Citation: 2020 ONSET 2
Indexed as: F.Y. and L.B. v. Toronto District School Board
Written Submissions
F.Y. and L.B., Appellants
Frances Marinic, Counsel
Toronto District School Board, Respondent
Ely-Anna Hidalgo-Simpson, Counsel
Introduction
1The Appellants filed a Form A: Notice of Appeal to the Ontario Special Education (English) Tribunal (the "Tribunal") on June 12, 2020.
2Further to the intiating document, the Tribunal sent correspondence to the Respondent on June 15, 2020 advising that a Form B: Response to a Notice of Appeal was required by June 25, 2020. This Form B was not received by the required time and further inquiries were made to the Respondent.
3On June 30, 2020, the Respondent submitted a request to the Tribunal for an extension of time to file the Form B. The Respondent requested an extension until October 23, 2020 to file this document.
4By letter dated July 9, 2020, counsel for the Appellants opposed the Respondent's request for an extension. The Appellants indicated that this request is not reasonable and that the proposed delay is prejudicial to them.
5The Tribunal grants the Respondent's extension, in part, and permits the Respondent until September 11, 2020 to file the Form B. The reasons for this decision are set out below.
Analysis
6The Tribunal's authority to hear appeals relating to special placements of pupils is set out in section 57 of the Education Act, R.S.O. 1990, c.E.2. 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.
7In order to commence an appeal, the Tribunal requires an appellant to complete and file a Form A: Notice of Appeal. The Tribunal will then send a copy of the completed Form A to the respondent school board. The respondent is required to complete and file a Form B: Response to a Notice of Appeal with the Tribunal within 10 days.
8In this case, the Respondent did not meet its timeline to file the Form B. Further, the Respondent filed a request for an extension on June 30, 2020, after the 10-day period elapsed.
9While the Respondent has not complied with the Tribunal's stated timeline, the Tribunal is also currently governed by the Emergency Order issued by the Government of Ontario made under the Emergency Management and Civil Protection Act on March 20, 2020, as a result of the extraordinatory circumstances caused by COVID-19. This Emergency Order suspends limitation periods relevant to the Tribunal.
10The Respondent's delay in filing a Form B is regrettable. However, given the Emergency Order mentioned above, the Tribunal cannot hold the Respondent strictly to the 10-day timeline. Instead, the Tribunal must decide whether the Respondent's request for an extension until October 23, 2020 is reasonable.
11In her request for an extension, counsel for the Respondent stated that she is not able to complete a Form B: Response to a Notice of Appeal because the Respondent Board's employees are out-of-office, on vacation over the summer holidays.
12In their letter opposing the Respondent's request for an extension, the Appellants argue that the proposed extension until October 23, 2020 is not reasonable and constitutes a significant delay. They note that the Respondent was to complete the Form B prior to the start of the summer break and before the vacation period. The Appellants further argue that the Respondent's reasons for requesting the extension is not supported by evidence, specifically noting that the completion of the Form B is administrative in nature and there is no evidence to suggest that the Respondent Board's administrative employees will be away on vacation for the duration of the requested period.
13I agree that the time period requested by the Respondent is not reasonable. During normal processing times (e.g. not subject to exceptional orders), a respondent is expected to provide a Form B: Response to a Notice of Appeal within a 10-day period. The Respondent's request significantly exceeds this time period.
14In deciding what time period is appropriate for an extension, I have considered that there will be vacation periods during the summer season for some of the Respondent's employees, there are administrative disruptions caused by the exceptional circumstances of COVID-19, and the Appellants should be afforded timeliness in continuing the processing of their appeal. In reaching my decision, I have considered fairness to both parties.
15As such, I am granting, in part, the Respondent's request for an extension in filing the Form B: Response to a Notice of Appeal to the Tribunal and directing that the Respondent file the document by September 11, 2020. I am satisfied that this extension date gives the Respondent adequate time to undertake the necessary steps to complete and submit the Form B and it also enables the Appellants to move forward with processing their appeal without the significant delay that the intial requested date would cause to them. The extension date granted to the Respondent takes into account the exceptional circumstances resulting in work disruption but balances the interests of the Appellants in accessing services before the Tribunal.
Order
16The Respondent is directed to complete and file a Form B: Response to a Notice of Appeal to the Tribunal by September 11, 2020. A copy of the Form B must be sent to the Appellants and their counsel.
Dated at Toronto, July 29, 2020.
Noeline Paul
Noeline Paul
Member```