TS and AS v. Toronto District School Board, 2024 ONSET 2

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

TS and AS Appellants

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: Catherine Bickley Date: September 3, 2024 Citation: 2024 ONSET 2 Indexed as: TS and AS v. Toronto District School Board

WRITTEN SUBMISSIONS

TS and AS, Appellants Self-represented

Toronto District School Board, Respondent Jennifer P. Saville, Counsel

Introduction

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

2The Appellants challenge the Respondent’s decision to promote their child, GS, to Grade 7 which necessitates a move to a new school. They request that GS be retained in Grade 6 and remain at his current school.

3The Respondent argues that the Appeal should be dismissed due to lack of jurisdiction. It also argues that the Appellants’ filing of an application to the Human Rights Tribunal of Ontario (“HRTO”) in addition to the Appeal may amount to an abuse of process.

ISSUES

4Does the OSET lack jurisdiction to hear the Appeal because:

• the Appellants have not exhausted their appeal rights as they did not appeal the Respondent’s decision to the Special Education Appeal Board (“SEAB”); or,
• the decision (promotion to Grade 7 and movement to a new school) is not an identification or placement decision?

5Do the actions of the Appellants in filing both an Appeal with the OSET and an HRTO Application amount to an abuse of process?

result

6The lack of an appeal to the SEAB in the circumstances of this case does not prevent the OSET from taking jurisdiction as the Appellants did not file a SEAB appeal due to incorrect information provided to them by the principal of GS’s school.

7The OSET lacks jurisdiction to hear the Appeal because the decision (promotion to Grade 7 and movement to another school) is not an identification or placement decision.

8The Appellant’s actions in filing both an OSET appeal and an HRTO application do not amount to an abuse of process.

9As the OSET lacks jurisdiction, the Appeal must be dismissed.

background

10The Appellants’ child is 12 years old. He has been identified as an exceptional student with Mild Intellectual Disability (“MID”) and Autism Spectrum Disorder (“ASD”). In Grade 6, his placement was in a Special Education Class with Partial Integration and he was enrolled in a MID Intensive Support Program (“MID ISP”).

11An April 3, 2024 Identification, Placement and Review Committee (“IPRC”) made no changes to GS’s identification and placement. The IPRC recommended that GS’s school work with him and his family “to help him transition to the next school” since his junior school does not go beyond Grade 6.

12The Appellants want their child to spend another year in Grade 6 “to give him a chance to learn.” They note that “[h]e is missing 30-35% of his curriculum due to ABA therapy he’s attending in the afternoons 3 days a week and as a result he struggles to catch up in those subjects.” They state that every transfer “throws him back in academics, developmentally, negatively affects his speech (he holds a diagnosis of speech apraxia), and takes a heavy toll on his overall mental health. Being transferred not only to the next grade academically, but to a new school altogether will push him every furher behind.”

13The Appellants provided the Respondent with recommendations from a clinical psychologist who had supervised GS since age six, the behaviour analyst supervising his ABA programming and his developmental pediatrician. All these professionals recommended that GS be allowed to repeat Grade 6 and stay in the same school.

14GS’s mother wrote to the Respondent requesting that it “accommodate [GS’s] very specific needs and allow him to remain in the 6th grade for another year.” In response, on April 17, 2024, Superintendent Dr. Belinda Longe confirmed that GS would not be retained in his current school. The reason offered was “that is not our practice.”

15On May 1, 2024, the principal of GS’s school told the Appellants that there would not be a SEAB hearing as “[t]he SEAB process is for original IPRCs (referred to as a Level 3).” The Appellants filed this Appeal on May 2, 2024.

analysis

The OSET can take jurisdiction despite the lack of a SEAB decision

16I reject the Respondent’s argument that the Appellants cannot appeal to the OSET because they have not appealed the Respondent’s decision to the SEAB. The OSET has previously taken jurisdiction in the absence of a SEAB hearing when a school board has refused to convene a SEAB hearing or has unreasonably delayed that hearing: RW v. Toronto Catholic District School Board, 2018 ONSET 1; S and S v Halton District School Board, 2005 ONSET 5; S. v Peel District School Board, 2006 ONSET 7; MS v Ottawa Catholic District School Board, 2011 ONSET 4.

17At the time this Appeal was filed with the OSET, GS’s principal had told the Appellants that a SEAB Appeal was not open to them, drawing a distinction between an original and subsequent IPRC. The Appellants had no reason to believe the principal was giving them incorrect information.

18Although Superintendent Marc Sprack met with the Appellants after the Appeal was filed and clarified that SEAB appeals are not limited to original IPRC decisions, the Appellants continued with the Appeal and made submissions on the jurisdicitional issues raised by the Respondent. It is understandable that having started an Appeal to the OSET they did not wish to discontinue a process that was already underway before a neutral adjudicative body and start another process before the SEAB.

19I find, therefore, that this is a case in which it is appropriate for the OSET to take jurisdiction despite the lack of a SEAB hearing. However, for the reasons set out below, I find that the OSET does not have jurisdiction over the decision under appeal.

Promotion to Grade 7 and movement to another school are not placement decisions

20There is no dispute between the parties regarding GS’s identification. There is also no dispute regarding GS’s placement in a Special Education Class with Partial integration. This is the same placement as GS had in Grade 6. The dispute is whether GS can repeat Grade 6 which would permit him to remain in the same school. If he advances to Grade 7, he must move to a different school.

21The Appellants argue that “the decision to promote to grade 7 is an integral part of both a student’s identification and placement decision and cannot be viewed as separate. They submit that placement must be defined to include both grade and school of placement.

22In contrast, the Respondent submits that promotion and retention decisions fall within the authority of the principal and that the proper route of appeal of those decisions is to the Superintendent of Education and the Executive Superintendent of Education.

23The key question is whether the concept of placement includes the physical location in which GS will be learning. The OSET has found that it does not. In MS v. Ottawa Catholic District School Board, 2011 ONSET 4, the issue was whether the student would return to either of two schools they had previously attended. The parents argued that neither was appropriate due to the student’s negative experiences at those schools. While the OSET acknowledged the parent’s concerns, it concluded as follows:

… the Tribunal’s mandate does not extend to ordering the specific school location where the special education programs and services that it orders are to be delivered to an exceptional student. The Tribunal’s mandate is to determine the most appropriate special education placement for identified exceptional students. Placement in this context means the type of class and the special education programs, services and accommodation provided to the student in the specified class, in the student’s best interest.

24I find this reasoning to apply to this case. The Appellants are not asking the OSET to determine the appropriate special education placement for GS as they agree with the Respondent that that placement is in a Special Education Class with Partial integration. They are asking the OSET to order that the placement be in a specific school. That is beyond the mandate of the OSET. In other words, the OSET lacks jurisdiction to make such an order. Accordingly, the Appeal must be dismissed.

The Respondent’s Abuse of Process Argument

25The Respondent has suggested that the filing of both an OSET Appeal and an HRTO Application may amount to an abuse of process.

26The simple fact that there is or may be a related proceeding in another forum does not automatically amount to an abuse of process or trigger a stay of an OSET Appeal. Each situation must be assessed on its own merits. In this case, the Appellants have raised the question of whether the Respondent has failed to accommodate GS’s disability-related needs. This is not a question that the OSET can answer in this case given my finding that the OSET lacks jurisdiction over the decision under appeal,

27As the HRTO noted in AR v OCDSB, 2020 HRTO 677:

The HRTO is not synonymous with OSET nor do the two entities have the same legislative mandate.

28Thus, it may be appropriate for these two different tribunals to adjudicate different questions which arise from the same factual situation. Accordingly, the initiation by the Appellants of proceedings before both tribunals does not amount to an abuse of process.

ORDER

29The Appeal is dismissed.