K.S. as Represented by his Litigation Guardian G.F. v. Toronto District School Board (“TDSB”), 2021 ONSET 1

(ENGLISH) TRIBUNAL

K.S. as Represented by his Litigation Guardian G.F.

Appellant

-and-

Toronto District School Board (“TDSB”)

Respondent

Adjudicator: Maureen Doyle

Date: January 22, 2021

Citation: 2021 ONSET 1

Indexed as: K.S. as Represented by his Litigation Guardian G.F. v. Toronto District School Board (“TDSB”)

K.S. as Represented by his Litigation Guardian G.F., Appellant

Frances Marinic-Jaffer, Counsel

Toronto District School Board (“TDSB”), Respondent

Krish Chakraborty, Counsel

INTRODUCTION

1The Appellant, G.F., Litigation Guardian for K.S., the student, appealed to the Ontario Special Education Tribunal (“OSET”) the Respondent TDSB’s March 20, 2020 decision, which upheld the Special Education Appeal Board’s (“SEAB”) Decision in this matter.

2The SEAB Decision, in turn, confirmed the Identification Placement Review Committee (“IPRC”) identification of K.S. as an exceptional student with a Communication Exceptionality, namely with Autism Spectrum Disorder. The IPRC statement of decision confirmed the placement for K.S. as “Regular Class Placement with withdrawal resources (GLE)”.

3The Appeal states that the appeal is not with respect to the identification of K.S. as a student with Autism Spectrum Disorder, but is only with respect to the placement of K.S.

4The Appellant states that K.S. requires a placement in “a Regular Classroom with Resource Assistance”.

5The Appellant submits that the IPRC and SEAB Decisions of “Regular Class with withdrawal resource” do not meet the individual disability-related needs of the student.

6The Respondent raises the preliminary objection that the OSET is without jurisdiction to hear this appeal, as the Appellant requested the placement of “Regular Class with Resource Assistance”, and that is what the Respondent decided in its March 20, 2020 decision. Accordingly, it submits, there is no “live issue”.

7The Respondent further submits that the appeal constitutes issue estoppel, res judicata, and/or an abuse of process, given the Appellant’s unsuccessful appeal to the OSET “involving the same parties and the same issue decided” by the OSET in the previous year.

8Finally, the Respondent requests a declaration that the Appellant is a vexatious litigant and be required to seek leave prior to commencing any further applications or appeals to Social Justice Tribunals (Ontario).

THE LAW

9The legislative framework for this appeal relates to the provision of special education programs and services for pupils by school boards in Ontario and is set out in the Education Act, RSO 1990, c. E.2, as amended (“the Act”).

10The specific processes for the identification of and provision of special education programs and services are set out in detail in the regulations issued under the Act, namely Regulation 181/98 (“the Regulation”).

11Where a parent or guardian disputes the identification or placement of a pupil, the Act provides the parent or guardian with an external appeal process, namely the OSET.

12 Section 57(3) of the 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)

13Where the components of section 57(3) of the Act have been met, the OSET has been mandated under section 57(4) of the legislation to hear an appeal and then either dismiss the appeal or grant the appeal and make any appropriate order or orders, regarding identification or placement of a student, as it sees appropriate.

14Where an appeal has been filed with the OSET and the appeal falls outside of its jurisdiction, the OSET may dismiss the appeal without a hearing. The criteria for adjudicating appeals without a hearing are set out in Rule 19.1 of the OSET Rules. Of particular relevance to this case, the OSET may dismiss an appeal without a hearing under this Rule, where the appeal relates to matters that are outside the OSET’s jurisdiction.

15The OSET’s decision is final and binding on the parties to an appeal, pursuant to section 57(5) of the Act.

BACKGROUND

16The Respondent provided a history of the student’s special education supports and services, as requested by the Appellant and provided by the Respondents. It noted that on or about December 17, 2018, the Appellant wrote to the Respondents requesting the following:

provision of a 1:1 assistant to support the applicant in the classroom setting for the morning;
provision of a safety plan over the lunch period and;
provision of resource assistance in the afternoons in the regular classroom by a special education resource teacher, rather than providing resource assistance by withdrawal.

The Respondent states that it had agreed to the Appellant’s request for resource assistance from a special education teacher, but “declined the other two requests on the grounds that they did not relate to the student’s identification or placement”.

17The Respondent states that the Appellant subsequently advised that she was not satisfied with the Board’s decision “with respect to programs and services provided” and appealed to the OSET.

18The Appellant’s appeal was dismissed on February 13, 2019, in 2019 ONSET 1. In that decision the OSET stated that it did not have the jurisdiction to hear the Appeal, as the Board had already agreed to the Appellant’s request for both identification and placement and that the provision of programs and services in such circumstances were outside the mandate of the OSET.

19At a Case Management Conference Call, following the submission of this Appeal, the parties were directed to advise the Tribunal what facts they could agree upon for the purposes of the preliminary issue before the OSET. The Appellant wrote to say that the “only agreed upon fact is that the SEAB decision that K.S. remain in his current placement for this academic year is now moot”. The Appellant then provided submissions regarding the preliminary issues.

20On December 19, 2019, the IPRC determined that the Appellant would be placed in a Regular Class with Withdrawal Resource. It also stated that the school would update the Individual Education Plan (IEP) “to address the student’s transition to secondary school”.

21On March 4, 2020, the Special Education Appeal Board (SEAB) stated that the Appellant would be placed in a Regular Class with Resource Assistance. The SEAB decision stated:

“Given the scope of our mandate, the SEAB at this time agrees with the current placement decision made by the IPRC …The SEAB feels that currently the decision for placement of ‘Regular Class with Resource Assistance’ is appropriate for this current school year.”

22The SEAB stated that “it is not within the scope of the SEAB to recommend class supports or 1:1 support…This type of recommendation falls outside of SEAB’s mandate”. It opined that the parents required further information regarding what the placement means at the school level, but also stated that “many of the contested issues fall under programming and are not part of the IPRC or the mandate of the SEAB. Programming and supports are to be discussed and implemented at a school level”. The SEAB decision also noted that “the question remains as to what placement will be appropriate for [the student’s] grade 9 school year”.

23On April 23, 2020, the Respondent decided that the Appellant would be placed in a Regular Classroom with Resource Assistance, stating that “decision of the Special Education Appeal Board…be approved”.

POSITIONS OF THE PARTIES

24The Respondent submits that there is no prima facie case for the OSET to determine, as K.S. wishes to be placed in a Regular Class with Resource Assistance, and that is the placement which the Respondent confirmed following the SEAB decision. Yet, this is the decision that the Appellant now seeks to appeal to OSET.

25The Respondent submits that the jurisdiction of the OSET, pursuant to section 57(3) of the EA is to consider and decide appeals where the Appellant is “dissatisfied with the decision in respect of the identification or placement” of the student. The Respondent submits that the OSET has no jurisdiction to consider this Appeal and cites H.A. and G.F. v. Toronto District School Board 2019 ONSET 1 (H.A.).

26The Respondent submits that what the Appellant really seeks to have the OSET address is the matter of the Board’s programming and services for the student , in particular, the request for 1:1 support.

27The Respondent submits that this very issue, involving the same parties, was previously decided by the OSET and cites H.A., arguing that the matter is res judicata as well as an abuse of process, as the Appellant is seeking to relitigate a matter already determined.

28The Appellant submits that the decision in H.A. was issued “on the basis of a mediation” where “there was no opportunity to provide or present a written legal position examining how it was reasonably possible for the TDSB and the family to agree on the placement Regular Class with Resource Assistance, yet still disagree”. She submits that the term “Regular Class with Resource Assistance” did not mean the same thing for the two parties.

29The Appellant submits that when the SEAB stated that it was agreeing with the IPRC’s placement decision for K.S., it must have been agreeing with “Regular Class Placement with withdrawal resource”, as that was the December 19, 2019 IPRC decision. The Appellant goes on to submit that it was in fact not possible for the SEAB to agree with that placement, as no such placement is available at the elementary level and the IPRC must have been looking forward to the placement of K.S. for the following year, in high school.

30The Appellant submits, therefore, that the SEAB agreed with the IPRC’s December 19, 2019 placement decision of Regular Class with withdrawal resource, and that is what the SEAB must have been confirming. Accordingly, she submits, there is a prima facie case before the OSET.

31The Appellant submits that though the SEAB stated that “the question remains as to what placement will be appropriate for [the student’s] grade 9 school year”, it must have nonetheless been confirming the IPRC decision of Regular Class Placement with withdrawal resource.

32The Appellant submits that K.S. has been seeking appropriate support services since 2017, but has not received them. She refers to the Ontario Human Rights Commission’s Policy on Accessibility for Students with Disabilities, and submits that there are both procedural and substantive obligations fundamental to the provision of individual disability related accommodations within educational settings.

33The Appellant cites Eaton v. Brant County Board of Education 1997 CanLii 366 (SCC), [1997] 1 SCR 241 (Eaton), paragraph 67, to submit that there is a link between what she calls the “environment and the duty to accommodate”. She submits that in H.A., the OSET member was not able to consider legal arguments regarding the “constituent parts of the placement”.

34The Appellant submits that the OSET has jurisdiction to hear an Appeal where the issue is dissatisfaction with the provision of services. She refers to Eaton to submit that an “environment must be reasonably accommodated to meet the needs of individuals with disabilities”. She also cites Robert Tranchemontagne and Norman Werbeski v. Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children’s Services 2006 SCC 14 (Tranchemontagne), in which the Supreme Court stated at paragraph 26:

“The presumption that a tribunal can go beyond its enabling statute – unlike the presumption that a tribunal can pronounce on constitutional validity – exists because it is undesirable for a tribunal to limit itself to some of the law while shutting its eyes to the rest of the law.”

35She also cites the following from other paragraphs, including 13 and 24 of Tranchemontagne:

“The Code is fundamental law. The Ontario Legislature affirmed the primacy of the Code in the law itself, as applicable to both private citizens and public bodies. Further the adjudication of Code issues is no longer confined to the exclusive domain of the intervener the Ontario Human Rights Commission (‘OHRC’) s. 34 of the Code. The legislature has thus contemplated that this fundamental law could be applied by other administrative tribunals and has amended the Code accordingly.

I must emphasize that the presumptive power to look beyond a tribunal’s enabling statute is triggered simply where a tribunal (with the authority to decide questions of law) is confronted with “issues…that arise in the course of a case properly before it.”

36She submits that in accordance with the principles stated in Tranchemontagne, the OSET has the jurisdiction to apply the Ontario Human Rights Code (Code), in the present case, as “services and environment are inextricably linked and must be considered in conjunction with each other”. She submits that the OSET “does have the jurisdiction pertaining to services”.

37The Appellant also provided submissions with respect to the Respondent’s position that the matter should be dismissed as res judicata and/or for abuse of process.

38Finally, the Appellant submits that she is not a vexatious litigant, and K.S. is entitled to his “rights to accessible education and appropriate individual disability related services as a vehicle to such accessibility”.

DECISION

39The parties to this matter have agreed that the question of the Decision of the SEAB that the Appellant remain in his placement for the current year is now moot. The Decision currently under Appeal is the Respondent’s decision confirming the SEAB’s decision. Accordingly, by extension, the Decision of the Respondent is also moot.

40If I am wrong regarding the mootness of this matter, however, based on the submissions provided on the jurisdictional issue, I find that the OSET does not have jurisdiction to hear this appeal. I find that the decision of the SEAB, that “Regular Class with Resource Assistance”, was the decision confirmed by the Respondent. The Appellant has indicated that this is in fact the specific placement that K.S. needs and therefore seeks.

41As set out above, the Act has granted the right of appeal to the OSET to a parent or guardian of a pupil with respect to identification and placement under section 57(3) of the Act. This legislative provision sets out the two-part criteria in order to access this right of appeal to OSET: (1) the parent or guardian must have exhausted all rights of appeal under the Regulation and (2) the parent or guardian must be dissatisfied with the decision in respect of the identification or placement.

42Based on the Appellant’s submissions regarding the applicability of the Code, and her assertion that K.S. has been seeking appropriate services since 2017, but has still not received them, I conclude that the real issue between the parties appears to be the services being provided to the Appellant.

43While the OSET has the jurisdiction to consider breaches of the Code when it considers questions which arise “in the course of a case properly before it” (Tranchemontagne), the services provided to the applicant is not a question properly before the OSET. This matter can be distinguished, for example, from a case where an Appellant asserts that a decision regarding his or her “identification” or “placement” was made for reasons which contravene the Code.

44The Appellant’s assertion that the member did not have the benefit of her arguments in H.A. does nothing to change the jurisdiction of the OSET. The Act clearly states the limits of the jurisdiction of the OSET, and I concur with the decision in H.A. which states:

“Where 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.

While 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.”

45As I am dismissing this appeal on the basis of mootness and lack of jurisdiction, I do not need to consider the parties’ positions regarding res judicata and abuse of process.

46The seminal decision on the factors that Courts have considered in determining whether an individual is a vexatious litigant were described by the Ontario Court of Appeal in Foy v. Foy (No.2) (1979), 1970 CanLII 1631 (ON CA), 26 O.R. (2d) 220. These factors are summarized in the decision of Lang Michener Lash Johnston v. Fabian, 1987 CanLII 172 (ON SC), [1987] O.J. No. 355 (H.C.):

a. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c. vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d. it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f. the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

g. the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

47It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. In order to declare the applicant to be a vexatious litigant, I must be satisfied on an objective standard that the applicant has persistently and without reasonable grounds, instituted vexatious proceedings or behaved in a vexatious manner during the proceedings.

48I am not persuaded that the applicant did not have a genuine or good faith belief that the applicant’s rights had been violated when this Application was filed. I am not persuaded that it was filed for an improper purpose, such as to harass and inconvenience the respondent. I am not persuaded that at this point the applicant has persistently and without reasonable grounds, instituted vexatious proceedings or behaved in a vexatious manner during the proceedings. This does not, however, preclude such a finding in the future.

49Accordingly, at this time, I decline to exercise my discretion to declare the Appellant a vexatious litigant.

ORDER

50The Appeal is dismissed.

Dated at Toronto, Ontario, January 22, 2021.

Maureen Doyle

Member```