V.J. and B.J. v. Toronto District School Board, 2021 ONSET 2

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

V.J. and B.J. Appellants

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: Noeline Paul Date: May 4, 2021 Citation: 2021 ONSET 2 Indexed as: V.J. and B.J. v. Toronto District School Board

WRITTEN SUBMISSIONS

V.J. and B.J., Appellants Self-represented

Toronto District School Board, Respondent Krish Chakraborty, Counsel

Introduction

1The Appellants initiated an appeal to the Ontario Special Education (English) Tribunal (the “OSET”) on February 16, 2021 under section 57(3) of the Education Act, R.S.O. 1990, c.E.2 (“EA”). The Respondent subsequently argued that the OSET did not have jurisdiction to consider this appeal on the basis that (1) the Appellants had not exhausted all remedies before coming to the OSET and (2) the Appellants were not pursuing an appeal based on identification or placement of a student, as required under the law. The Appellants were provided an opportunity to respond to the jurisdictional issue and they request that this appeal be allowed to continue for consideration on its merits.

Issues

2The issue before me is whether the OSET has jurisdiction to consider this appeal under section 57(3) of the EA on the basis that the Appellants have exhausted all relevant rights of appeal and they are dissatisfied with a decision about identification and placement of a pupil.

deCISION

3I find that the OSET does not have jurisdiction to hear this appeal on the basis that the Appellants have not exhausted other relevant appeal remedies. This appeal is, therefore, dismissed. The reasons for this decision are set out below.

Background

4The Appellants initiated this appeal by filing the standard OSET Form A: Notice of Appeal (“Form A”) with the tribunal on February 16, 2021.

5As part of its usual practice, the OSET sent correspondence to the Respondent on February 26, 2021 to notify the Respondent of the appeal and next steps in an OSET appeal process.

6On March 4, 2021, the Respondent provided their Form B: Response to a Notice of Appeal (“Form B”). In this response, the Respondent argued that the OSET does not have jurisdiction to hear this appeal. The Respondent requested that the OSET dismiss this appeal for lack of jurisdiction.

7As a result of the Respondent’s request related to the preliminary issue of jurisdiction, the OSET issued a Case Management Direction dated March 11, 2021 and invited both parties to provide written submissions on this issue. Specifically, in this Case Management Direction, I instructed the Appellants to respond in writing to explain why they believed that the OSET had authority under the law to consider this appeal. I further set out timelines for the Appellants’ submissions and the Respondent’s response and refered the parties to the OSET’s website to learn about its mandate, appeal process and other online resource materials. Both parties submitted documents in response to this Case Management Direction.

8The pupil to whom this appeal relates is a 5-year old student who attends Junior Kindergarten at one of the Respondent’s schools. The Appellants indicate that the pupil has severe autism and a heart defect and does not have a special education plan.¹ The Respondent indicates in their Form B submissions that the pupil has not yet been involved in the identification and placement process and is currently studying in a regular classroom.²

analysis

Overview of Legislative Framework

9Decisions made by the OSET are guided by the mandate given in law. The legal framework that applies to the OSET relates to special education for pupils provided by school boards in Ontario and is set out in the EA. This legislation requires school boards to proactively identify exceptional pupils and provide appropriate special education programs and services to them. Further details regarding the specific process for identification and providing special education programs and services are set out in regulations issued under the EA.

10The EA has specifically addressed the identification of exceptional pupils and special education programs and services in section 8(3), which states as follows:

8(3) The Minister shall ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario, and shall provide for the parents or guardians to appeal the appropriateness of the special education placement, and for these purposes the Minister shall,

(a) require school boards to implement procedures for early and ongoing identification of the learning abilities and needs of pupils, and shall prescribe standards in accordance with which such procedures be implemented; and

(b) in respect of special education programs and services, define exceptionalities of pupils, and prescribe classes, groups or categories of exceptional pupils, and require boards to employ such definitions or use such prescriptions as established under this clause.

11Where a parent or guardian does not agree with the identification or placement of a pupil, the EA provides the parent or guardian with an external appeal process, namely the OSET.

12Section 57(3) of the EA specifically sets out the right of appeal to the OSET and permits a parent or guardian of a pupil to file an appeal before the tribunal under certain circumstances. Section 57(3) states 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. (Emphases added.)

13Where section 57(3) of the EA has been met, the OSET has been mandated under section 57(4) of this 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.

14The OSET’s decision is final and binding on the parties to an appeal under section 54(5) of the EA.

Overview of Relevant Regulatory Provisions

15While the EA has created a general framework for the identification of exceptional pupils and special education programs and services in Ontario, this legislation has not provided further details regarding this process. Instead, the specific mechanism for determining the identification of exceptional pupils and special education programs and services is described in the EA’s corresponding regulations, specifically Regulation 181/98.

(i) Identification and Placement of Exceptional Pupils

16Regulation 181/98 provides a formal process for identification and placement of exceptional students. Section 10 of Regulation 181/98 requires each school board to establish at least one committee for the identification and placement of exceptional pupils (“IPRC”). This regulation permits school boards to create procedures for its IPRCs, as long as these procedures comply with the regulatory provisions.

17The IPRC process is initiated by the principal of the school where the pupil is enrolled, either on written notice to the parent of the pupil or and on the parent’s written request, as per section 14 of Regulation 181/98. The principal refers the pupil to a committee of the school board and must respond to a parental request for such a referral within 15 days of receiving the request.

18Further to a referral under section 14 of Regulation 181/98, the IPRC will be convened for the purposes of considering an educational assessment of the pupil. The regulatory provisions list timelines for this process and specifies certain information that shall be included in the IPRC’s consideration. The IPRC is mandated to render decisions regarding a pupil’s identification and placement. In some circumstances, the IPRC may make recommendations regarding special education programs and services for the pupil. Where a specific exceptional identification requires or relies upon an assessment beyond an educational assessment, such as a psycho-educational assessment or a medical assessment, the IPRC can order such assessments to be carried out and order that the results be provided to the IPRC, with parental consent, for consideration.

19Regulation 181/98 also provides for a review mechanism for a pupil’s education program. Section 21 of the Regulation 181/98 sets out the circumstances in which a principal refers a pupil for review of his or her identification or placement.

(ii) Special Education Appeal Board

20Where a parent of a pupil is not satisfied with a decision of an IPRC about the pupil’s identification or placement, Regulation 181/98 allows a first level of appeal. Subject to certain criteria and timelines, a parent may appeal the IPRC’s decision to a special education appeal board (“SEAB”). While this regulation allows for a second IPRC to be convened before a referral to a SEAB, this step is optional and parents do not need to agree to the reconvening of the IPRC.

21Regulation 181/98 details the specific requirements for the SEAB, including the composition of the members of the SEAB. This regulation requires that a chair be selected for the SEAB committee that is to consider the appeal and that a meeting of the committee be held within 30 days of the chair’s selection. The committee is mandated to meet to discuss the matters under appeal. This regulation also requires the committee to issue a recommendation that either agrees or disagrees with the IPRC’s decision within three days of ending the committee meeting. The SEAB’s recommendation is to be provided in a written statement that is accompanied by written reasons to relevant individuals as set out in section 29 of Regulation 181/98.

(iii) School Board Decision After SEAB

22Once the SEAB recommendation has been issued, the school board is required to render a decision regarding the pupil’s identification and/or placement based on its consideration of the SEAB recommendation. Section 30 of Regulation 181/98 mandates the school board to issue its decision in writing within 30 days of receiving the SEAB’s written statement. This regulatory provision also references a right of appeal of the school board’s decision to the OSET pursuant to section 57 of the EA.

Jurisdiction of OSET

23As set out above, the EA has granted a 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 EA. This section of the legislation sets out a 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 regulations and (2) the parent or guardian must be dissatisfied with the decision about identification or placement of the pupil.

24Section 57 of the EA relies on regulations to detail the rights of appeal that must be exhausted in order to then proceed to the OSET. As discussed above, Regulation 181/98 describes the formal process for identification and placement of exceptional students, the IPRC, and the SEAB. Both the IPRC and SEAB serve as a review function and the SEAB is an appeal mechanism available before going to the OSET. Based on the structure set out in Regulation 181/98, a parent or guardian is expected to pursue the IPRC and SEAB process prior to filing an appeal before the OSET.

25The OSET has previously taken jurisdiction where a parent or guardian has filed an appeal with the tribunal but not concluded the initial appeal process.³ The OSET has adopted this approach where the school board failed to comply with a request for appeal or significantly delayed doing so. Although a parent may consider applying to Court for a judicial review where the request for the establishment of a SEAB has been significantly delayed beyond the specified timelines, the OSET has taken the position that the tribunal can, in effect, proceed with the appeal under such circumstances.

26The second requirement stated in the EA is that a parent or guardian must be dissatisfied with the decision in respect of the identification or placement. This requirement presupposes that a decision regarding identification or placement of a pupil has been made by the school board, after the IPRC and subsequent SEAB process have concluded.

27The OSET is also bound by the rulings of the Supreme Court of Canada in its decision-making. Notably, in Eaton v. Brant County Board of Education⁴, the Court indicated that decision-making bodies must focus on the best interests of the child and, in Moore v. British Columbia⁵, the Court noted a focus upon assuring meaningful access to education.

28Where an appeal has been filed at the OSET and the appeal falls outside of its jurisdiction, the tribunal may dismiss the appeal without a hearing. The criteria for deciding appeals without a hearing is set out in Rule 19.1 of the OSET Rules. Of particular relevance to this case, the OSET can dismiss an appeal without a hearing under this Rule where the appeal relates to matters outside of the tribunal’s jurisdiction or where the requirements in section 57(3) of the EA have not been met.

The Positions of the Parties in this Case

29The Appellants commenced this appeal to OSET by filing a Form A on February 16, 2021. With respect to the grounds of appeal, the Appellants ticked off boxes in the Form A indicating that they were appealing on the grounds of identification and placement. They further indicated that an IPRC was never held despite many requests and that, instead of helping the pupil, the Respondent school board sent a ‘Cease and Desist’ letter. The Appellants also marked a line in the box for SEAB information, indicating that an SEAB was not held.

30In terms of the identification of the pupil in this case, the Appellants noted in their Form A that the pupil should be identified with multiple exceptionalities and they ticked off boxes for the following categories: behavioural, communication (autism, language impairment, speech impairment, and learning disability), intellectual (mild intellectual disability and developmental disability), and multiple.

31With respect to the placement that is most appropriate for the pupil, the Appellants ticked off multiple boxes in their Form A, indicating the following placements: in a regular classroom with indirect support, in a regular classroom with resource assistance, and a regular classroom with withdrawal support.

32In the Form A, the Appellants stated that the pupil needs an urgent IPRC before the pupil begins Senior Kindergarten classes. They further indicate that they have made requests and complaints to various individuals within the Respondent school board’s structure and other individuals, such as a school board trustee, but have not received a favourable response.

33The Appellants have provided some documentation from medical practitioners and service providers to support the pupil’s diagnosis of autism and other health concerns. They have also provided documentation related to mental health issues of one of the Appellants. The Appellants have included a ‘Cease and Desist’ letter dated February 2, 2021 from the Superintendent of Education for the Respondent school board. This letter cites examples of this appellant interrupting the pupil’s online virtual classroom sessions, insulting a teacher, scaring other students, and complaints from other parents about this appellant’s behaviour. The letter instructs this appellant to not communicate with school staff.

34In the Appellants’ submissions related to the preliminary issue of whether the OSET has jurisdiction to consider this appeal, the Appellants did not provide new information or arguments. The Appellants stated that they had reported counsel for the Respondent school board to the Law Society of Ontario to cancel his licence.

35The Respondent’s position is that the OSET does not have jurisdiction to consider this appeal because an IPRC and SEAB have not been held. The Respondent further states in their submissions in response to the OSET’s Case Management Direction that the Respondent school board is in the process of obtaining necessary information to begin an IPRC and that no identification decision has been made.⁶ The Respondent’s position is that the Appellants have not exhausted their rights of appeal and there is no decision from which to appeal.

36With respect to placement, the Respondent argues that the Appellants are not appealing the placement of the pupil but are dissatisfied with the programming and services provided to the pupil.⁷ The Respondent notes that the pupil has been placed in a regular classroom, as requested by the Appellants. The Respondent’s position is that the OSET does not have jurisdiction over appeals that involve the dissatisfaction of programs and services to the pupil.

37The Respondent requests that the OSET dismiss this appeal for lack of jurisdiction.

Lack of Jurisdiction in the Matter

38Based on the evidence and submissions provided on the jurisdictional issue, I find that the OSET does not have jurisdiction to hear this appeal on its merits. I find that the Appellants filed their Form A before they exhausted their appeal rights as required by law.

39The information and evidence provided by the Appellants and the Respondent school board confirms that a decision has not been made regarding the pupil’s identification. An IPRC and SEAB have not been held. The Appellants do not dispute these facts.

40The Respondent indicates in their submissions that the school board is preparing to begin the IPRC process. This indicates that the school board is still in an early stage of the pupil’s identification process and will be continuing along this avenue. I accept that the Respondent is intending to follow through with this process.

41I recognize that the Respondent school board is required to respond to a request by a parent for a referral to an IPRC within a tight timeline. When there are delays in this process, the parent or guardian should follow an internal complaint process or address this issue with the appropriate officials within the school board structure.

42The OSET has taken jurisdiction previously where there has been a demonstrated unreasonable delay in the internal appeal process.

43The information and evidence filed in this case does not indicate that there has been an unreasonable delay in holding the IPRC. The pupil is 5 years old and currently attending Junior Kindergarten. I accept that the Respondent school board will follow up with the IPRC process in a timely manner.

44I appreciate that the identification process has not occurred at the speed that the Appellants would prefer. I recognize that the Appellants would like this process completed in time for the beginning of the pupil’s Senior Kindergarten year, as indicated by the Appellants in their Form A. However, the OSET does not have the authority to speed up this process, particularly when the evidence does not indicate that there has been an unreasonable delay.

45In terms of the Appellants’ concerns around placement of the pupil, I accept that that the Appellants are dissatisfied with the level of programming and support services provided to the pupil. However, based on the information and evidence provided, I find that decisions about identification and placement have not been made. Since I find that these decisions have not been made yet, I conclude that the OSET does not have the authority to consider the Appellants’ concerns at this stage.

46In light of the foregoing, I find that the Appellants have not exhausted their other relevant appeal remedies and, as such, do not meet the criteria set out in section 57(3) of the EA. Therefore, I conclude that the OSET does not have jurisdiction to consider this appeal. Further to Rule 19.1 of the OSET Rules and based on my review of the submissions and documents presented to me, this appeal is dismissed.

ORDER

47This Appeal is dismissed for lack of jurisdiction and the file will be closed.

Footnotes

1. 1Appellants’ Supporting Document attached to their email of March 17, 2021.
2. 2Respondent’s Submission attached to their email of March 24, 2021.
3. 3D. v. Toronto District School Board, 2001 ONSET 2.
4. 4Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241; 1997 SCC 366.
5. 5Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360; 2012 SCC 61.
6. 6Respondent’s Submission attached to their email of March 24, 2021.
7. 7Respondent’s Submission attached to their email of March 24, 2021.