ONTARIO SPECIAL EDUCATION
(ENGLISH) TRIBUNAL
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B E T W E E N:
GF
Appellant
-and-
Toronto District School Board
Respondent
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INTERIM DECISION
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Adjudicator: Catherine Bickley
Indexed as: GF v. Toronto District School Board
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APPEARANCES
GF, Appellant
Dr. Frances Marinic-Jaffer, Counsel
Toronto District School Board, Respondent
Krish Chakraborty, Counsel
Jemeka Bennett, Student-at-Law
introduction
1This is an appeal to the Ontario Special Education (English) Tribunal (“the Tribunal”) under section 57 of the Education Act, R.S.O. 1990, c.E2, as amended (“the Act”).
2This Interim Decision explains why the Tribunal is denying the Appellant’s request that the Respondent be ordered to retrieve and produce recordings of a Special Education Appeal Board (“SEAB”) hearing.
background
3The Appellant’s child, KS (“the Pupil”), is currently in Grade 11 in a Toronto secondary school.
4In June 2022, an Identification, Placement and Review Committee (“IPRC”) confirmed the identification of the Pupil’s exceptionality as Autism and decided the Pupil’s placement would be Special Education Class with Partial Integration.
5The Appellant objected to the IPRC placement decision and appealed to the SEAB.
6A two-day SEAB hearing was held in October 2022. The hearing was held by Zoom and was recorded. Links to access the recordings were sent to the Appellant’s counsel on November 1, 2022.
7On November 7, 2022 the SEAB issued a 16 page Report (“the Report”) which included a discussion of SEAB’s jurisdiction and several recommendations.
8On December 12, 2022, the Respondent advised the Appellant that it had decided to reject the SEAB’s recommendations and had decided to place the Pupil “in a Regular Class with Withdrawal Assistance.“
9The Appellant appealed the Respondent’s December 12, 2022 decision to the Tribunal. The Respondent then brought a preliminary motion seeking dismissal of the Appeal on the following grounds:
No Prima Facie Case;
Want of Jurisdiction (regarding the provision of 1:1 services to the Pupil);
Issue Estoppel/Res Judicata; and,
Abuse of Process.
10In addition, the Respondent has requested that the Appellant be declared a vexatious litigant and required to seek leave from the Tribunal before filing any further Appeals against the Respondent.
11In a February 24, 2023 Case Management Direction (“CMD”), the Tribunal denied the Appellant’s request that either the Respondent or the Tribunal pay for the transcription of the two-day SEAB hearing held in October 2022. The CMD noted:
The issues currently before the Tribunal are the Respondent’s Motion challenging the Tribunal’s jurisdiction and the Respondent’s request that the Appellant be declared a vexatious litigant. Any discussion before the SEAB about the SEAB’s jurisdiction is not determinative of the Tribunal’s jurisdiction. If the Appellant seeks to rely at the Tribunal on discussions before the SEAB, the hearing adjudicator will determine their admissibility and relevance.
12On March 6, 2023, the Appellant wrote to the Tribunal expressing concern that the recordings of the October 2022 SEAB hearings were no longer accessible and stating that the lack of access to the recordings impaired Appellant counsel’s ability to prepare written submissions in response to the Respondent’s motion. Those submissions are due later this month.
March 13, 2023 case management videoconference
13A case management videoconference was held on March 13, 2023 to deal with the Appellant’s request that the CFSRB order the Respondent to retrieve and produce the SEAB recordings.
14According to the Respondent, SEAB hearings are not typically recorded. The October 2022 hearing was held by Zoom with audio/videorecordings retained for 120 days and then deleted from the Respondent’s system in accordance with a Respondent policy.
15The Appellant received links to the recordings on November 1, 2022. Appellant counsel states she was very busy and did not know the recordings would become unavailable. When she tried to access the recordings via the links in late February 2023, she was unable to do so.
16The Appellant submits the recordings are relevant evidence for the Tribunal proceeding because they demonstrate issues under the Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A (“Health Care Consent Act”) and issues regarding the conduct of a psychologist and demonstrate a failure to provide services to the point of undue hardship under the Human Rights Code, R.S.O. 1990, c.H.19 (“Human Rights Code”). Finally, the Appellant states the recordings are relevant because they contain extensive discussion between counsel and the SEAB about the SEAB’s jurisdiction and about the provision of 1:1 services.
17The Respondent submits that there is nothing in the recordings that is relevant to the Tribunal proceeding and notes that any documentary evidence provided at the SEAB hearing can be submitted to the Tribunal. Discussions between counsel and the SEAB hearing panel would not be admissible before the Tribunal. The Respondent also submits that the Tribunal proceeding is an appeal of the Respondent’s decision not of the SEAB’s recommendations.
analysis
18Discussions during the SEAB hearing between counsel and the members of the SEAB have no relevance to the decision making of the Tribunal. Discussions between counsel and members of the SEAB during a SEAB hearing do not constitute evidence. Further, it is difficult to understand on what basis such discussions would be admissible in a proceeding before the Tribunal and, even if admitted, what assistance they would offer.
19The Tribunal’s jurisdiction flows from section 57 of the Act. In contrast, a SEAB’s jurisdiction flows from Part VI of O.Reg. 181/98 (Identification and Placement of Exceptional Pupils). Nevertheless, if the Appellant wishes to refer to the SEAB’s analysis of the SEAB’s jurisdiction when making submissions to the Tribunal, he may do so by submitting and referring to a copy of the detailed Report.
20If the Appeal proceeds to a hearing on the merits and the Tribunal considers the issue of the provision of 1:1 services, such consideration will be on the basis of evidence and arguments submitted to the Tribunal, not on the basis of any discussions between counsel and the SEAB. Again, if the Appellant wishes to refer to the SEAB’s analysis of the issue, he may do so through submitting and referring to a copy of the detailed Report.
21I reject the Appellant’s submissions that the recordings are relevant because they contain discussion about issues under the Health Care Consent Act and issues about the conduct of a psychologist. Such issues are outside the jurisdiction of the Tribunal. Finally, allegations that the Respondent did not meet its obligations under the Human Rights Code are more appropriately brought before the Human Rights Tribunal of Ontario and, indeed, the Appellant has done so in applications to that tribunal.
22For these reasons, I decline to order the Respondent to retrieve and produce the recordings of the October 2022 SEAB hearing.
ORDER
23The Appellant’s request that the Respondent be ordered to retrieve and produce the recordings of the October 2022 SEAB hearing is denied.
Dated at Toronto, March 14, 2023.
Catherine Bickley
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Catherine Bickley
Vice-Chair