ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
B E T W E E N:
DM and BG Appellants
-and-
Toronto District School Board Respondent
INTERIM DECISION
Adjudicators: Catherine Bickley Date: February 4, 2026 Citation: 2026 ONSET 2 Indexed as: DM and BG v. Toronto District School Board
WRITTEN SUBMISSIONS
DM and BG, Appellants Self-Represented
Toronto District School Board, Respondent Jemeka Bennett, 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 Appellants’ child, EG.
Background
2In June 2025, two identification, placement and review committees (“IPRC”) concluded that it was not appropriate to identify EG as Gifted because she did not score at or above the 98th percentile in the General Ability Index (“GAI”) on the Wechsler Intelligence Scale for Children – 5th Edition (“WISCV”). That score is one of four criteria for Giftedness in the Respondent’s Special Education Plan (“SEP”).
3The Appellants requested a Special Education Appeal Board (“SEAB”). The SEAB majority confirmed the conclusions of the two IPRCs. One member of the SEAB issued a minority recommendation that EG be identified as Gifted and placed in a full-time special education class.
4On October 15, 2025, the Appellants received a letter from the Respondent, dated October 9, 2025, containing the following decision:
[EG] is identified as having no exceptionality.
Placement: As there is no identification of any exceptionality, there is no placement. [EG’s] placement will continue to be a regular classroom
Analysis
5The Respondent asserts that for the Tribunal to identify EG as Gifted when she did not score at or above the 98th percentile in the GAI would amount to the Tribunal setting aside the criteria in the SEP and substituting its own criteria. The Respondent characterizes this as a jurisdictional issue most appropriately decided in advance of any potential hearing on the merits of the Appeal.
6Specifically, the Respondent characterizes the issue as follows:
… whether the Tribunal has the jurisdiction to set aside the criteria for an exceptionality of Giftedness, as set out in a school board’s statutorily-prescribed Special Education Plan, then create and substitute the Tribunal’s own criteria for an exceptionality of Giftedness.
7The Appellants argue, and I agree, that the Respondent has mischaracterized the issue.
8The SEP quotes the Ministry of Education definition of Giftedness, states “[I]n making its determination, a TDSB IPRC will consider the following” and then lists four criteria. The Respondent’s focus is on EG’s failure to meet one of the criteria, Professional Assessment, which is described as:
An individual psychological assessment that the student is functioning at or above the 98th percentile on the General Ability Index (GAI) on a recently administered Wechsler Intelligence Scale for Children – 5th Edition (WISCV), Canadian norms
9The Appellants confirm in their written submissions that they “are not asking the Tribunal to disregard, override, or depart from [emphasis in the original]” the SEP. They argue that if the SEP had “been interpreted and applied in a manner consistent with its language, purpose, and governing legal principles” EG would have been identified as Gifted.
10Given the language of the SEP that an IPRC will “consider” four criteria, it is not obvious that the failure of a student to score at or above the 98th percentile on the GAI necessarily prevents identification of the student as Gifted. One possible interpretation of the SEP is that, when all four criteria are considered together, it may be appropriate to identify a student as Gifted notwithstanding the student’s failure to meet the criterion of scoring at or above the 98% percentile. A determination of whether the SEP requires that a student meet this one criterion, no matter the result under the other three criteria, is most appropriately made in the context of a full evidentiary record and argument from the parties based on that record.
11For these reasons, I conclude that it is not appropriate for the Tribunal to decide the correct interpretation of the criteria for Giftedness as a preliminary issue.
12The Tribunal will be in contact with the parties regarding next steps.
Order
13The Appeal will proceed to a hearing on the merits.
Catherine Bickley
Catherine Bickley Vice-Chair