OG v. Toronto District School Board, 2025 ONSET 4

ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL

B E T W E E N:

OG Appellant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicators: Catherine Bickley Date: September 11, 2025 Citation: 2025 ONSET 4 Indexed as: OG v. Toronto District School Board

WRITTEN SUBMISSIONS

OG, Appellant Self-represented

Toronto District School Board, Respondent Katherine Georgious, 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 identification and placement of the Appellant’s child.

2This decision decides the Appellant’s motion requesting that I recuse myself due to a reasonable apprehension of bias.

ISSUE

3Is there a reasonable apprehension of bias requiring that I recuse myself?

result

4The Appellant has not established that a reasonable apprehension of bias exists. The motion is dismissed.

background

5The Appeal was filed on May 9, 2025. The Respondent filed a Response on May 22, 2025. I presided over a pre-hearing on May 28, 2025 and have subsequently issued several Case Management Directions (“CMDs”). Since the May 28, 2025 pre-hearing, the Appellant has filed multiple motions and requests, including the motion that is the subject of this decision. No hearing on the merits has yet been held or scheduled.

6On May 30, 2025, the Appellant filed a motion requesting that the Tribunal make an order regarding his child’s placement prior to the hearing on the merits. On June 2, 2025, I issued a CMD directing that the motion would be heard in writing and setting dates for the parties’ submissions on the motion.

7On June 6, 2025, the Appellant filed another motion asking the Tribunal to order the Respondent to adjourn a June 11, 2025 Attendance Review Committee hearing and asking the Tribunal to make other orders related to EG’s attendance and placement. June 6, 2025 was a Friday. On Monday, June 9, 2025, I issued a CMD noting that the Tribunal would not be able to hear and decide the motion prior to the scheduled Attendance Review Meeting. The CMD also directed that this second motion be held in abeyance until the May 30, 2025 motion was decided.

8On June 16 and 17, 2025, the Appellant wrote to the Tribunal requesting further orders.

9On June 18, 2025, I issued a CMD with further direction regarding the May 30, 2025 motion and also directing the Appellant to refrain from filing further materials until “the Tribunal has decided the first Motion and has provided direction regarding the Second Motion and the Appellant’s June 16 and 17, 2025 correspondence.”

10On June 20, 2025, the Appellant withdrew the May 30, 2025 motion. On June 23, 2025, the date set for his Reply submissions on that motion, he filed the recusal motion.

11Despite the direction in the June 18, 2025 CMD to refrain from filing further materials, the Appellant has continued to file requests for various rulings by the Tribunal, most recently on August 20, 2025 and September 8, 2025.

analysis

12The test for evaluating whether there is a reasonable apprehension of bias has been described by the Supreme Court of Canada, as follows:

… the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “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.

13There is a strong presumption of impartiality on the part of an adjudicator: Bailey v. Barbour, 2012 ONCA 325. As noted in Sebhatu v. Starwood Canada Corp. o/a The Westin Harbour Castle, 2012 HRTO 329, a tribunal’s use of its authority to engage in active case management does not give rise to a reasonable apprehension of bias nor does the fact that a party may disagree with the tribunal’s directions.

Allegations Regarding the May 28, 2025 Pre-Hearing

14The Appellant alleges that during the May 28, 2025 pre-hearing, I favoured the Respondent and treated him unfairly. Specifically, he complains that I “granted” the Respondent’s request to call a witness I told him he could not call, did not allow him to make “legal arguments,” and at one point muted his microphone during the videoconference.

15During the May 28, 2025 pre-hearing, a general discussion of potential witnesses took place. Such a discussion is a typical part of a pre-hearing. There is nothing unusual or improper for an adjudicator conducting a pre-hearing to comment on whether a proposed witness may be relevant to the issues before the Tribunal. Indeed, such comments may be helpful to a party as they prepare their case. It is also common at a pre-hearing to discuss which party will call a particular witness. To date, I have not issued any direction or order regarding witnesses. The final decision on whether a particular witness may testify rests with the hearing adjudicator who has the benefit of the required witness statements outlining the anticipated testimony of that witness.

16It is unclear what “legal arguments” the Appellant alleges he was prevented from making. Any comments I made regarding what issues were (or were not) within the Tribunal’s jurisdiction were an appropriate part of my obligation to assist a self-represented Appellant in understanding the limits of the Tribunal’s jurisdiction.

17Muting the Appellant’s microphone was necessary when he ignored my direction to stop interrupting myself and Respondent counsel. The Appellant’s microphone was muted only briefly and he had ample opportunity to talk during the pre-hearing. Muting the Appellant’s microphone was appropriate given his behaviour and falls within the authority of an adjudicator to control the process in an event such as a pre-hearing.

18Finally, I note that no directions or orders flowed from the pre-hearing. The Appellant remains able to propose any witness he wishes for the hearing on the merits, subject to any direction from the hearing adjudicator regarding the relevance of a particular witness.

19I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would not conclude that any of my actions during the May 28, 2025 pre-hearing gave rise to a reasonable apprehension of bias.

Allegations Regarding the May 30, 2025 Motion

20The Appellant objects to the Tribunal not convening a further pre-hearing when he filed his May 30, 2025 motion. He asserts that in not doing so, I failed to follow Rule 11.4 of the Tribunal’s Rules of Procedure. As noted by the Respondent, the Appellant did not give notice to the Tribunal’s Secretary that he was requesting a further pre-hearing under Rule 11.4. Further, the Appellant raised no objection to the procedure set out in the June 2, 2025 CMD which directed written submissions until it was almost time for him to file his Reply materials. In any event, the Tribunal has the authority to vary its rules and procedure (Rule A4.2 of the Tribunal’s Rules of Procedure). Directing written submissions was the most expeditious and efficient process for hearing the motion.

21The Appellant asserts that because he was not permitted to file additional materials in support of his motion, he was left with only a one-page submission. This is factually incorrect. The Appellant’s initial motion materials consisted of four single-spaced pages, setting out in some detail the statutory framework, factual foundation, and legal argument in support of the motion. The Appellant also had the opportunity to file a Reply.

22I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would not conclude that any of my directions regarding the May 30, 2025 motion gave rise to a reasonable apprehension of bias.

Allegations Regarding Case Management Directions

23The Appellant also takes issue with directions I have provided in various CMDs. In particular, he objects to my not having made rulings he has requested.

24In his May 30, 2025 motion and subsequent requests to the Tribunal, the Appellant has sought a ruling on his child’s placement prior to a hearing on the merits. While the Appellant characterizes his various motions and requests as simply seeking “neutral clarification,” he has in fact been seeking a ruling regarding a central substantive issue in the Appeal, i.e., the appropriate placement of his child. Indeed, in his Reply submissions on the recusal motion, the Appellant acknowledges that the May 30, 2025 motion “sought a final placement order.” Such a decision cannot be made by the Tribunal until it has conducted a hearing on the merits during which both parties will have the opportunity to present oral and documentary evidence and make legal arguments in support of their differing views about the appropriate identification and placement of the Appellant’s child.

25The Appellant has also asked the Tribunal to intervene in matters that appear to be outside its jurisdiction such as an Attendance Review Committee hearing and a referral to a children’s aid society. I have declined to do so.

26As noted in paragraph 13, above, neither an individual’s disagreement with an adjudicator’s directions nor an individual’s dislike of an adjudicator’s case management directions give rise to a reasonable apprehension of bias.

27I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would not conclude that my declining to make rulings the Appellant has requested and declining to act outside the Tribunal’s jurisdiction gave rise to a reasonable apprehension of bias.

28I find that an informed person, viewing the matter realistically and practically and having thought the matter through, would not conclude that the directions in the CMDs I have issued gave rise to a reasonable apprehension of bias. Neither would that informed person conclude that declining to act outside the Tribunal’s jurisdiction gave rise to a reasonable apprehension of bias.

CONCLUSION

29For the reasons set out above, I conclude that an informed person, viewing the matter realistically and practically, and having thought the matter through would not conclude that any of my actions or directions while case managing this file have resulted in a reasonable apprehension of bias. The Appellant has not presented any persuasive evidence to overcome the presumption of adjudicative impartiality. While he may be unhappy with some of my directions, that does not mean that those directions are biased. The impugned actions and directions fall within my authority under the Tribunal’s Rules of Procedure and the Statutory Power Procedures Act, R.S.O. 1990, c. S.22 and are consistent with my obligation to move this file toward a hearing on the merits in an orderly manner. As a result, the Appellant has not established a reasonable apprehension of bias and his motion that I recuse myself must be dismissed.

next steps

30The Tribunal will issue a Case Management Direction aimed at moving this matter to a hearing on the merits.

ORDER

31The Appellant’s motion that I recuse myself is dismissed.