GF v. Toronto District School Board, 2023 ONSET 2

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

GF Appellant

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: Catherine Bickley Date: June 16, 2023 Citation: 2023 ONSET 2 Indexed as: GF v. Toronto District School Board

WRITTEN SUBMISSIONS

GF, Appellant Dr. Frances Marinic-Jaffer, Counsel

Toronto District School Board, Respondent Krish Chakraborty, Counsel

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 Decision explains why I am dismissing the Appeal as an abuse of process and declaring the Appellant a vexatious litigant.

BACKGROUND

The Pupil

3The Appellant’s child, KS (“the Pupil”), is currently in Grade 11 in a Toronto secondary school. His exceptionality has been identified as Autism. He has had multiple IPRCs starting in 2011.

4The Appellant and the Respondent have frequently disagreed about the appropriate placement and support for the Pupil. The Appellant’s consistent position has been that the Pupil requires 1:1 support. The Respondent disagrees. These differing views have led to two previous appeals to the Tribunal, both of which have been dismissed.

Proceedings leading to this Appeal

5In June 2022, an Identification, Placement and Review Committee (“IPRC”) recommended the Pupil be placed in a Special Education Class with Partial Integration.

6The Appellant appealed the IPRC decision to the Special Education Appeal Board (“SEAB”) which held a two-day hearing by Zoom in October 2022.

7On November 7, 2022 the SEAB issued its report (“the SEAB Report”) recommending a placement of Regular Class with Resource Assistance. The SEAB Report made additional recommendations, including a recommendation that the Pupil be provided with 1:1 assistance.

8On December 12, 2022, the Respondent advised the Appellant that it had decided to reject the SEAB’s recommendations and place the Pupil “in a Regular Class with Withdrawal Assistance.“

9In late December 2022, the Appellant filed this Appeal.

The Respondent’s Motion

10The Respondent has 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.

11In addition, the Respondent requests that the Appellant be declared a vexatious litigant and be required to seek leave from the Tribunal before filing any further Appeals against the Respondent.

ANALYSIS

12The four grounds which the Respondent relies on to support its Motion are interconnected. In my view, the central issue is whether the Appeal is an abuse of process. For the following reasons I conclude that it is and must therefore be dismissed.

Abuse of Process

13Rule A8.2 of the Tribunal’s Rules of Procedure provides that the Tribunal may “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”.

14In Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459, the Ontario Court of Appeal described the common law doctrine of abuse of process as engaging “the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.”

15When determining whether there is an abuse of process a decision maker at an administrative tribunal must “engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.” DP v. Children’s Aid Society of Hamilton, 2017 CFSRB 30.

16An important element of the abuse of process doctrine is the avoidance of re-litigation that would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice. Toronto (City) v. CUPE Local 79, 2003 SCC 63.

The Appellant is seeking a remedy outside the Tribunal’s Jurisdiction

17In this case, there is no dispute that the Pupil be placed in a Regular Class. The dispute is whether the placement should be with Resource Assistance or Withdrawal Assistance and, if with Resource Assistance, the nature of that assistance.

18The Respondent’s Special Education Plan 2022-2023 includes four placement options for secondary school students:

• Regular Class with Indirect Support and Regular Class with Withdrawal Assistance
• Special Education Class with Partial Integration and Special Education Class Full Time

19A placement of Regular Class with Resource Assistance is available at the elementary level but not at the secondary level.

20The Tribunal cannot order a placement that does not exist. The Appellant alleges that the lack of this placement at the secondary level is a violation of the Human Rights Code. Indeed, as discussed further below, the Appellant has filed multiple applications with the Ontario Human Rights Tribunal (“HRTO”) based on this allegation. Those allegations are most appropriately dealt with by the HRTO.

21Further, I agree with the Respondent’s submission that “the pith and substance of the issue under appeal is whether K.S. should receive 1:1 support in his regular class placement.”

22The Respondent relies on the Tribunal’s jurisprudence in support of its position that the Tribunal “does not have the jurisdiction to order 1:1 support as the provision [of] programs and services is outside” the Tribunal’s mandate: W.R. v. Ottawa Catholic District School Board, 2008 ONSET 4. The Appellant does not point to any contrary jurisprudence.

The Appellant is re-litigating an issue that was already decided by the Tribunal

23In July 2018, the Appellant appealed an IPRC decision on placement directly to the Tribunal without first appealing to the SEAB. The Tribunal dismissed the appeal for lack of jurisdiction: H.A. and G.F. v. Toronto District School Board, 2019 OSET 1.

24In March 2020, the Appellant appealed a SEAB decision to the Tribunal. The Tribunal dismissed the appeal on the grounds of mootness and lack of jurisdiction. K.S. as Represented by his Litigation Guardian G.F. v. Toronto District School Board, 2021 ONSET 1.

25The issue of 1:1 support was dealt with in these previous appeals. In both cases, the Tribunal concluded that the issue of 1:1 support was outside its jurisdiction.

26The Appellant does not point to any relevant facts distinguishing this appeal from those two cases. Instead, he simply argues that those decisions were wrongly decided.

27This is the third appeal by the Appellant seeking 1:1 support for the Pupil. To relitigate the issue a third time violates the principle of judicial economy.

The Appellant is litigating the same issue before two different tribunals

28The Respondent submits that the Appellant’s actions in commencing three applications at the HRTO “involving the same parties and requesting the same relief” is an abuse of process.

29In his submissions to the Tribunal, the Appellant submits and relies heavily on the documents he has filed in support of the three HRTO Applications, going so far as to assert that the “Narrative” in those applications is evidence on the merits of the Appeal before this Tribunal.

30At its core, this Appeal is about the alleged failure of the Respondent to accommodate the Pupil throughout his elementary and secondary education. In his submissions, the Appellant alleges the Respondent has contravened the Pupil’s accommodation rights, has failed to provide individualized accommodation of the Pupil’s disability, is guilty of systemic discrimination, and has not established an undue hardship defence. These allegations that the Respondent has not met its obligations under the Human Rights Code are more appropriately brought before the HRTO and, indeed, the Appellant has done so in multiple applications to that tribunal.

31Further, the Appellant is asking the Tribunal to order a placement that exists at the Respondent’s elementary schools but not at its secondary schools. Whether the lack of that particular placement at the secondary level is a violation of the Human Rights Code is a question to be determined by the HRTO.

32Finally, the litigation of the same issue before two different tribunals could lead to inconsistent results if both the HRTO and the Tribunal make orders with respect to 1:1 support. Such an outcome would create confusion and bring the administration of justice into disrepute.

33I conclude that re-litigating an issue that has already been decided twice by the Tribunal, repeatedly seeking a remedy which is outside the Tribunal’s jurisdiction, and bringing multiple applications regarding the same issue to two different tribunals amounts to an abuse of process. Accordingly, the Appeal must be dismissed.

The Applicant is Declared a Vexatious Litigant

34Rule A8.2 of the Tribunal’s Rules of Procedure gives the Tribunal the authority to declare a person to be a vexatious litigant where the “person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner.”

35In K.S. (above), the Tribunal dismissed the Respondent’s request to declare the Appellant a vexatious litigant while noting “[t]his does not, however, preclude such a finding in the future.”

36As noted above, this is the third Appeal which the Appellant has brought before the Tribunal on the same issue. Throughout his submissions, the Appellant asserts that the two previous cases were wrongly decided. There is no evidence before me that the Appellant took any steps to have those decisions reviewed.

37The Appellant also continued to raise arguments about a preliminary issue already decided in a March 2023 Interim Decision in which I dismissed a request from the Appellant that the Respondent be ordered to produce a recording of the SEAB hearing. The Respondent had provided the Appellant’s counsel with a link to that recording shortly after the SEAB hearing. She failed to download or otherwise preserve the recording until some months later by which time, as part of its policy on retention of recordings, the Respondent had deleted the recording.

38During pre-hearings on this Appeal and in submissions on the Motion, the Appellant continually asserted that the Respondent was hiding something with respect to the current unavailability of the SEAB recording. The language used was disrespectful and vexatious and the Appellant continued to raise the issue despite my finding in the Interim Decision that the recordings were not relevant to this proceeding.

39The Appellant has also made arguments before the HRTO in direct contradiction to his arguments before this Tribunal. In KS v. Toronto District School Board, 2022 HRTO 219, the Appellant argued that one of his HRTO applications should proceed because “the OSET can only address the identification and placement of an exceptional student, but it does not have the legislated mandate to address programming, services and accommodations”. He further argued before the HRTO “that since the applicant is looking for an adjudication of the services, supports and accommodations that he needs in order to have meaningful access to an education, which are outside the OSET’s jurisdiction, the [HRTO] needs to consider those issues at a hearing on the merits of the Application”

40The Appellant cannot have it both ways. He cannot seek the same remedy before two different tribunals and argue before the first tribunal that it has jurisdiction to grant that remedy while arguing before the second tribunal that the first tribunal lacks that jurisdiction.

41For these reasons, I conclude that the Appellant has instituted vexatious proceedings and conducted those proceedings in a vexatious manner.

CONCLUSION

42For the reasons set out above, I find that the Appeal must be dismissed as an abuse of process.

43I further find that the Appellant’s repeated pursuit of the same remedy at the Tribunal, his pursuit of the same remedy in multiple applications at another tribunal, his making of contradictory arguments at the two tribunals, and his refusal to accept decisions and rulings of this Tribunal amount to vexatious behaviour that warrants a declaration that he is a vexatious litigant.

ORDER

44The Appeal is dismissed.

45The Appellant is declared a vexatious litigant and must seek the permission of the Tribunal before filing any future appeals.