An appeal by the litigation guardian of a student (“Zachary”) from the Order of a trial judge dismissing an application for judicial review of the School Board’s decision to transfer Zachary to a different school for safety reasons while an appeal from the decision to change his placement under provisions relating to exceptional pupils was still outstanding. The Ontario Court of Appeal dismissed the appeal as moot.

24. June 2003 0

Administrative law – School boards – Transfer of students – Safety of students – Judicial review application – Mootness

Bonnah (Litigation guardian of) v. Ottawa-Carleton District School Board, [2003] O.J. No. 1156, Ontario Court of Appeal, April 8, 2003, Doherty, Austin and Charron JJ.A.

The court stated that it would not normally hear moot appeals, but that in this case it was exercising its discretion to do so.

Zachary was an 11-year-old student with various disabilities, who had been classified as an exceptional pupil within the definition found in the Education Act, R.S.O. 1990, c. E.2. Zachary was much larger than the other children in his grade two class, and as result the School Board conducted a review of his placement and ultimately recommended that he be transferred into a segregated placement school. Zachary’s parents did not consent to this change in placement and exercised their rights of appeal. Pursuant to the relevant regulations, Zachary was to remain in his placement in his regular grade two class pending the outcome of the appeals, unless his parents agreed to a change.

The school principal then advised Zachary’s parents that because Zachary posed an immediate and significant risk to the safety of himself, other students and staff, Zachary would be transferred to the segregated placement school. The school authorities referred to this as an administrative transfer.

During this time Zachary’s father’s appeal from the decision of the Identification Placement and Review Committee (“IPRC”) was still outstanding. Rather than send Zachary to the segregated placement school, Zachary’s father chose to challenge the Board’s action by way of judicial review.

The application for a judicial review was dismissed, and leave to appeal was granted. When leave was granted, the appeal from the initial decision of the IPRC was still outstanding. The Board ultimately chose to implement some of the recommendations of the IPRC.

Zachary’s father then appealed the Board’s decision to the Special Education Appeal Tribunal. The Tribunal allowed the appeal and ordered a placement of Zachary in a grade seven regular class in a community school. The decision of the Tribunal, being final and creating a placement for Zachary, made the appeal from the application for judicial review moot.

The court held that a court could exercise its discretion in favour of hearing a moot appeal where the issue that had become moot was fully litigated before the court, of general importance, and likely to arise in the future either in litigation involving the same parties or different parties.

Those factors were held to weigh strongly in favour of hearing the appeal insofar as it involved the question of the interaction of the School Board’s duty to ensure the safety of its schools and its obligations to exceptional pupils. The conflict between the Board’s duty to remove a student from a particular school to preserve the safety of that school and the Board’s obligation to leave an exceptional pupil in his current placement pending the completion of the appeal process will surely arise again. An interpretation of the relevant provisions of the Act and its regulations by this court would guide School Boards and parents when these difficult problems arise and will hopefully avoid the need for further litigation.

The court reviewed the Education Act and its accompanying regulations with respect to the identification and placement of exceptional pupils and concluded that the best interests of the exceptional pupil should determine the appropriate placement. Further, the court stated that the power to discipline by way of suspension or expulsion must have the potential to reach all pupils, including exceptional pupils.

In dismissing the appeal as moot, the court noted that:

Under the present scheme, a principal, and ultimately the Board, may exclude an exceptional pupil from his or her school or class for legitimate safety reasons. They cannot, however, alter that placement by purporting to transfer the exceptional pupil to a different school. Having determined that Zachary could not attend Manor Park because of safety concerns, the most the Board could do under the present scheme was offer an alternative placement to Zachary’s parents where, in the Board’s view, the safety concerns did not arise. Zachary’s parents would then have to decide whether to send Zachary to that other school pending the outcome of their appeal. If they declined to do so, Zachary would remain out of school.

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