It was not unreasonable for the Special Education Tribunal to refuse to provide the Applicant’s son with an intensive behavioural intervention program on the basis that such a program was medical treatment and not education

26. July 2005 0

Administrative law – School boards – Powers and duties – Parental rights – Special programs for autistic children – Decisions of administrative tribunals – Special Education Tribunal – Judicial review – Standard of review – Reasonableness simpliciter

Clough (Litigation Guardian of) v. Simcoe County District School Board, [2005] O.J. No. 2124, Ontario Superior Court of Justice, May 26, 2005, J.D. Carnwath, P.T. Matlow and E.M. Macdonald JJ.

The Applicant, on behalf of her son, sought judicial review of the decision of the Ontario Special Education Tribunal (the “Tribunal”). The Applicant’s son was a 12-year-old boy living with severe autism. The Simcoe County District School Board placed the boy in the Primary Autism Pilot Project (the “Project”). The Applicant appealed this decision to the Special Education Appeal Board but the Appeal Board confirmed the placement. The Applicant then requested a Special Education Tribunal hearing. The Tribunal affirmed the determination of the boy’s placement in the Project. The Applicant sought a judicial review of that decision.

The Court held that the standard of review was reasonableness. The Court therefore noted that they were not to retry the matter, nor to substitute their own opinion for that of the Tribunal. The Court could only interfere if the decision was not tenable.

The Court noted that the Applicant wanted the School Board to provide her son with an intensive behavioural intervention program. The Tribunal found that what the Applicant wanted for her child was in fact therapy, not education. The Court was therefore unable to characterize this conclusion as unreasonable.

Based on the evidence that the Tribunal chose to accept, the Court held that it was not unreasonable for the Tribunal to conclude that placement in the Project was appropriate for the Applicant’s son. The application was therefore dismissed.

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