MD v. Toronto District School Board, 2024 ONSET 1

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

MD

Appellant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Catherine Bickley

Date: July 9, 2024

Citation: 2024 ONSET 1

Indexed as: MD v. Toronto District School Board

WRITTEN SUBMISSIONS

MD, Appellant

Self-represented

Toronto District School Board, Respondent

Jennifer P. Saville, Counsel

Introduction

1This is an Appeal to the Ontario Special Education Tribunal (English) (“the OSET”) pursuant to Section 57 of the Education Act, R.S.O. 1990, c.E.2 (“the Act”).

2This decision explains why the OSET is dismissing the Appeal.

background

3The Appellant is the mother of HC, a student attending one of the Respondent’s schools. The Appellant and HC’s father have been engaged in what the courts have characterized as high conflict litigation for some years. A full trial before the Superior Court of Justice (“SCJ”) is scheduled for October 2024.

4In January 2024, following a November 2023 IPRC, the Appellant filed an Appeal to the Special Education Appeal Board (“the SEAB”). The Respondent scheduled a SEAB hearing for March 28, 2024 but cancelled that hearing after HC’s father provided the Respondent with a March 8, 2024 SCJ decision that granted him interim sole decision making authority with respect to HC’s education. The Appellant then filed this Appeal to the OSET.

5On April 26, 2024, the OSET issued a Notice of Intent to Dismiss because:

Section 57(3) of the Education Act requires a parent to exhaust all rights of appeal under the regulations before file and appeal with the Ontario Special Education Tribunal. This requirement includes an appeal to the Special Education Appeal Board. No such appeal has been undertaken in this case.

6Both parties have made written submissions in response to the Notice of Intent to Dismiss. I have considered those submissions as well as subsequent email correspondence from the Appellant.

analysis

7A prerequisite for an Appeal to the OSET is the exhaustion of all other avenues of appeal. In almost all cases, a parent must first proceed to a SEAB hearing before appealing to the OSET.

8The type of situation in which the OSET will take jurisdiction where there has been no SEAB hearing is explained in paragraphs 27 and 33 of RW v. Toronto Catholic District School Board, 2018 ONSET 1:

However, where a respondent has failed to comply with its obligations to establish and/or convened an SEAB in accordance with the Act and Regulation the OSET will hear an appeal. …

My conclusion is consistent with the OSET’s jurisprudence which has established that if a parent has not been through the SEAB process because the school board did not comply with the request or delayed compliance for a period well beyond that specified in the Regulations, the appeal should be permitted to proceed. See S and S v Halton District School Board, 2005 ONSET 5; S. v Peel District School Board, 2006 ONSET 7; and MS v Ottawa Catholic District School Board, 2011 ONSET 4.

9The situation before me, however, is not one in which a school board has failed in its obligations to hold a SEAB. Rather, HC’s father, who has been given interim sole decision making authority regarding HC’s education, has decided that an appeal to the SEAB is unnecessary. He is supportive of the November IPRC recommendation and HC’s subsequent placement. The Appellant is unhappy with the IPRC recommendation and placement and as a result has filed this Appeal with the OSET.

10The March 2024 SCJ decision not only granted HC’s father interim sole decision making authority regarding HC’s education, it also ordered the Appellant not to “interfere or advocate for an outcome ... that is different than the decision made by [HC’s father]” and that “she shall abide by these decisions made by [HC].”

11On April 5, 2024, in response to a request for clarification from the Appellant, Justice Sharma of the SCJ stated:

The specific issue of whether [HC’s father] should have the authority to withdraw the appeal of the IPRC decision was not argued before me and I did not decide it. It will be for the appropriate tribunal under the Education Act to determine whether [the Appellant] continues to have standing with respect to the appeal in the context of my Order.

12The Appellant relies on this clarification to argue that HC’s father did not have the authority to cancel the SEAB hearing. I disagree. In my view, HC’s father decision to cancel the SEAB hearing fell squarely within his decision making authority with respect to HC’s education. Further, the filing of the Appeal by the Appellant is an attempt to advocate for an outcome different than the decision made by HC’s father. For the OSET to proceed to hear the Appeal would be inconsistent with the SCJ’s March 2024 Order.

13The essential fact is that one of HC’s parents, who had authority to make a decision regarding the child’s education, cancelled the SEAB. As a result, all avenues of appeal have not been exhausted. Thus, the prerequisites for the OSET to take jurisdiction have not been met. In the absence of a SEAB hearing and decision, the OSET lacks jurisdiction to hear the Appeal and it must be dismissed.

ORDER

14The Appeal is dismissed.