HC v. Toronto District School Board, 2025 ONSET 2

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

HC Appellant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicators: Robert Patchett; Catherine Bickley Date: June 20, 2025 Citation: 2025 ONSET 2 Indexed as: HC v. Toronto District School Board

WRITTEN SUBMISSIONS

HC, Appellant Self-represented

Toronto District School Board, Respondent Nicola Simmons and Alex Smith, Counsel

INTRODUCTION

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

2This decision decides the Appellant’s motion requesting that the hearing panel members recuse themselves from the proceeding because the Appellant believes they are biased. In reaching this decision, we have considered the parties’ written submissions and the Appellant’s comments at the hearing.

ISSUES

3Should the hearing panel recuse themselves due to a reasonable apprehension of bias?

RESULT

4The Appellant has not established that there is a reasonable apprehension of bias. The hearing will continue with the same hearing panel.

BACKGROUND

5The hearing on the merits was scheduled for eight days. The first day of hearing focused on procedural matters including a request from the Appellant that various documents be sealed.

6At the start of the second day of hearing, the hearing panel chair delivered an oral ruling imposing a publication ban, ordering documents admitted at the hearing sealed on an interim basis, and providing other procedural directions.

7The Appellant was then affirmed and began giving his evidence. The hearing panel chair’s efforts to help the Appellant understand the difference between evidence and argument were largely unsuccessful. The Appellant repeatedly diverged from giving evidence to making arguments about how the Act should be interpreted.

8The hearing panel chair also attempted to focus the Appellant on presenting relevant evidence. For example, the hearing panel chair explained that the focus of the hearing was not on special education policy generally but on determining the appropriate placement of the Appellant’s child in the child’s best interests.

9The Appellant resisted all attempts to assist him in focusing on relevant evidence and refraining from making arguments during his evidence.

10Despite being asked several times to clarify what placement he was seeking, the Appellant did not provide a clear answer. It became apparent, however, that the Appellant was seeking a placement not currently available within the Respondent school board. The hearing panel chair then stated that submissions might be required on whether the Tribunal has jurisdiction to order such a placement. At this point, the Appellant became upset. He accused the hearing panel of “having a biased way of view” and stated that he was “not going to consider” answering the question of jurisdiction. He also stated that he had “lost faith in the panel” and wanted the panel members to recuse themselves.

11The Tribunal then directed the parties to make written submissions on whether there was a reasonable apprehension of bias such that one or both panel members should recuse themselves.

ANALYSIS

12While the Appellant’s motion does not explicitly seek the recusal of both members of the hearing panel, it refers to the members jointly failing “to uphold the appellant’s right to a fair hearing.” He also stated at the hearing that he had lost faith in the panel as a whole. Accordingly, the question to be determined is whether both members should recuse themselves due to a reasonable apprehension of bias.

13The test for evaluating whether there is a reasonable apprehension of bias has been articulated by the Supreme Court of Canada, as follows:

. . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

(Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting))

14The Appellant submits that when the question of jurisdiction was raised, he was prevented from explaining “the meaning of placement under the Education Act” and prevented from being able “to fully present an analytical framework” based on the Act and various court and tribunal decisions. Rule 10 of the Tribunal’s Rules of Procedures grants the Tribunal the authority to conduct a hearing, or part of a hearing, in a variety of formats including by written submissions. It was explained to the Appellant that both parties would have an opportunity to make written submissions on the issue of jurisdiction. An informed person would not think that a decision-maker would decide unfairly due to having directed that submissions be in a particular format.

15The Appellant further argues that it was “procedurally irregular” for the Tribunal to consider a jurisdictional issue after the hearing had started. It was only during the Appellant’s testimony that the issue crystallized. Questions of jurisdiction are fundamental. Once the issue was identified, it was essential that it be dealt with and doing so was within the Tribunal’s authority under both Rule A4.1 of the Tribunal’s Rules of Procedure and sections 23(1) and 25.0.1 of the Statutory Powers Procedure Act, R.S.O.1990, c.S.22 (“the SPPA”). An informed person would not view a hearing panel exercising its authority under its rules and the SPPA to determine an important jurisdictional issue as demonstrating a reasonable apprehension of bias.

16The Appellant also alleges that the fact that the hearing panel chair is cross-appointed to another tribunal at which the Appellant has also filed an application gives rise to a reasonable apprehension of bias. This argument has no merit. It is not unusual for an adjudicator to be appointed to more than one tribunal. The hearing panel chair has confirmed that he is not involved with the Appellant’s application at the other tribunal. Thus, an informed person would not conclude that his appointment to the other tribunal gives rise to a reasonable apprehension of bias.

17During the hearing, the hearing panel chair repeatedly attempted to assist the Appellant to effectively present his case by directing the Appellant to focus on the issue before the Tribunal and to avoid making legal arguments during the evidentiary phase of the hearing. An informed person would not think that these directions gave rise to a reasonable apprehension of bias. Indeed, such directions were consistent with the Tribunal’s obligations to help a self-represented individual understand and participate in the hearing process.

CONCLUSION

18We conclude that an informed person, viewing the matter realistically and practically, and having thought the matter through would not conclude that any of the hearing panel’s actions or directions during the hearing resulted in a reasonable apprehension of bias. Nor would the hearing panel chair’s cross-appointment to another tribunal. All the actions of the directions of the hearing panel fall within the authority of the panel under the Tribunal’s Rules of Procedure and the SPPA. As a result, the Appellant’s motion that the hearing panel members recuse themselves must be dismissed.

ORDER

19The Appellant’s motion that the hearing panel members recuse themselves is dismissed. The hearing will continue with the same hearing panel.