Ontario Special Education Tribunal
Rules of Procedure

(Disponible en français)

Part A

Rule A1: Application

The following rules apply to all proceedings of the OSET.

Rule A2: Definitions

"rules and procedures" includes rules, practice directions, policies, guidelines and procedural directions.

Rule A3: Interpretation

A3.1 The rules and procedures of the OSET shall be liberally and purposively interpreted and applied to:

  1. promote the fair, just and expeditious resolution of disputes,
  2. allow parties to participate effectively in the process, whether or not they have a representative,
  3. ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

A3.2 Rules and procedures are not to be interpreted in a technical manner.

A3.3 Rules and procedures will be interpreted and applied in a manner consistent with the Human Rights Code.

Rule A4: Tribunal Powers

A4.1 The OSET may exercise any of its powers at the request of a party, or on its own initiative, except where otherwise provided.

A4.2 The OSET may vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.

Rule A5: Accommodation of Human Rights Code-related needs

A5.1 A party, representative, witness or support person is entitled to accommodation of Human Rights Code-related needs by the OSET and should notify the OSET as soon as possible if accommodation is required.

Rule A6: Language

A6.1 Individuals may provide written materials to the OSET in either English or French.

A6.2 Individuals may participate in OSET proceedings in English, French, American Sign Language (ASL) or Quebec Sign Language (QSL).

A6.3 A person appearing before the OSET may use an interpreter. Interpretation services will be provided, upon request, in accordance with OSET policy.

Rule A7: Courtesy and respect

A7.1 All persons participating in proceedings before or communicating with the OSET must act in good faith and in a manner that is courteous and respectful of the OSET and other participants in the proceeding.

Rule A8: Abuse of process

A8.1 The OSET may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 Where the OSET finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the OSET may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the OSET to commence further proceedings or take further steps in a proceeding.

Rule A9: Representatives

A9.1 Parties may be self-represented, represented by a person licensed by the Law Society of Ontario or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws.

A9.2 Individuals representing a party before the OSET have duties to both the OSET and the party they are representing. Representatives must provide contact information to the OSET and be available to be contacted promptly. Representatives are responsible for conveying OSET communications and directions to their client. Representatives should be familiar with OSET rules and procedures, communicate the OSET's expectations to their client, and provide timely responses to the other parties and the tribunal.

A9.3 Where a representative begins or ceases to act for a client, the representative must immediately advise the OSET and the other parties in writing, and provide up-to-date contact information for the party and any new representative. Where a representative ceases to act for a client the OSET may issue directions to ensure fairness to all parties and to prevent undue delay of proceedings.

A9.4 The OSET may disqualify a representative from appearing before it where the representative's continued appearance would lead to an abuse of process.

Rule A10: Litigation guardians

A10.1 This Rule applies where a person seeks to be a litigation guardian for a party. It does not apply where no litigation guardian is required as a result of the nature of the proceeding.

A10.2 Persons are presumed to have the mental capacity to manage and conduct their case and to appoint and instruct a representative.

Litigation Guardian Declarations

A10.3 A litigation guardian for a minor under the age of 18 is required to file a signed declaration in the form designated by the OSET, confirming:

  1. the litigation guardian's consent to serve in this role;
  2. the minor's date of birth;
  3. the nature of the relationship to the minor;
  4. that any other person with custody or legal guardianship of the minor has been provided with a copy of the materials in the proceeding;
  5. that the litigation guardian has no interest that conflicts with those of the person represented;
  6. an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and
  7. that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

A10.4 A litigation guardian for a person who lacks mental capacity to participate in the OSET proceeding must file a signed declaration in the form designated by the OSET, confirming:

  1. the litigation guardian's consent to serve in this role;
  2. the nature of the litigation guardian's relationship to the person represented;
  3. reasons for believing that the person is not mentally capable of participating in the proceeding;
  4. the nature and extent of the disability causing the mental incapacity;
  5. that no other person has authority to be the person's litigation guardian in the proceeding;
  6. that any person who holds power of attorney or guardianship for the person for other matters has been provided with a copy of the materials in the proceeding;
  7. that the litigation guardian has no interest that conflicts with the interests of the person represented;
  8. an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and
  9. that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

Naming and Removing a Litigation Guardian

A10.5 Upon the filing of a complete declaration as required by this Rule and unless refused or removed by the OSET, the person may act as litigation guardian for the party.

A10.6 The OSET will review the declaration and may direct submissions by the parties on whether the litigation guardian should be refused pursuant to Rule A10.7.

A10.7 Upon review of the declaration, or at any later time in the proceeding, the OSET may refuse or remove a litigation guardian on its own initiative or at the request of any person because:

  1. the litigation guardian has an interest that conflicts with the interests of the person represented;
  2. the appointment conflicts with the substitute decision making authority of another person;
  3. the person has capacity to conduct or continue the proceeding;
  4. the litigation guardian is unable or unwilling to continue in this role;
  5. a more appropriate person seeks to be litigation guardian; or
  6. no litigation guardian is needed to conduct the proceeding.

Responsibilities of Litigation Guardians

A10.8 A litigation guardian shall diligently attend to the interests of the person represented and shall take all steps necessary for the protection of those interests including:

  1. to the extent possible, informing and consulting with the person represented about the proceedings;
  2. considering the impact of the proceeding on the person represented;
  3. deciding whether to retain a representative and providing instructions to the representative; and
  4. assisting in gathering evidence to support the proceeding and putting forward the best possible case to the tribunal.

A10.9 No one may be compensated for serving as a litigation guardian unless provided for by law or a pre-existing agreement.

A10.10 When a minor who was represented by a litigation guardian turns 18, the role of the litigation guardian will automatically end.

Part B

Rule 1: Preamble

Removed.

Rule 2: General

2.1 The Rules are made pursuant to s. 25.1 of the Statutory Powers Procedure Act (SPPA). The Rules apply to appeals under s. 57 of the Education Act, as it may be amended from time to time.

2.2 Removed.

2.3 The OSET may control its own processes and may issue policies, practices, and procedures as it sees fit.

2.4 Removed.

2.5 The Rules may be amended by the OSET from time to time.

2.6 The Rules, and all amendments to the Rules, shall be made available in both English and French.

2.7 Where an issue arises that is not covered by these Rules, it shall be resolved in a manner consistent with these Rules, the purpose of the Rules, the principles of natural justice, the SPPA, and the Education Act or any other Act under which the issue arises.

2.8 Substantial compliance with the requirements respecting the content of forms, notices, or submissions under the SPPA or these Rules is sufficient.

Rule 3 - Definitions

In these Rules:

3.1 "agreed statement of facts" means a statement of facts regarding the matters at issue before the tribunal on which the parties agree and which is submitted to the tribunal;

3.2 "appeal" means a proceeding initiated pursuant to s. 57 of the Education Act;

3.3 "appellant" means an adult pupil or a parent or legal guardian of a pupil pursuing an appeal;

3.4 "Chair" means the member who is appointed by the Lieutenant Governor in Council as Chair of the Ontario Special Education (English) Tribunal;

3.5 "document" means any record of information however recorded, whether in printed form, on film, by electronic means, or otherwise, and includes printed or handwritten text, sound recording, videotape, file, photograph, chart, graph, map, plan, survey, and book of account;

3.6 "expert witness" is a qualified individual called to testify at a hearing, who is recognized as having scientific and/or technical expertise in a particular field of knowledge, and can, therefore, provide an opinion on a particular subject including the factual basis for that opinion;

3.7 "filing" means the delivery of documents to the Registrar of the Tribunal in accordance with these Rules;

3.8 "hearing panel" means the panel of tribunal members hearing the appeal;

3.9 "holiday" means a Saturday, Sunday, Canada Day, Civic Holiday (August), Labour Day, Remembrance Day, Family Day, Good Friday, Easter Monday, Victoria Day, a day appointed by the Governor General or the Lieutenant Governor as a public holiday or for Thanksgiving, and a day within either a December vacation or a March break as designated by the school board;

3.10 "mediation" is a confidential principled negotiation process, where, with the consent of all parties, a mediator assists in resolving all or part of an appeal or assists in narrowing the issues to be decided at the hearing;

3.11 "mediator" is any trained person assigned by the Chair to conduct mediation on behalf of the tribunal;

3.12 "order" means a direction issued by the tribunal in a decision, which is legally binding on the parties;

3.13 "Panel Chair" means the Chair of the hearing panel;

3.14 "party" means an appellant initiating or a school board responding to an appeal;

3.15 "proceeding" means any or all steps in an appeal;

3.16 "Registrar" means the Registrar of the Ontario Special Education (English) Tribunal or his or her designate;

3.17 "respondent" means the party who responds to the allegations of the appellant in a hearing;

3.18 "Rules" means the specific Rules of Procedure for the Ontario Special Education (English) Tribunal;

3.19 "school board" means the District School Board or School Authority responding to an appeal;

3.20 "seized" means that the OSET retains jurisdiction over the implementation of its decision and orders for a specified period of time;

3.21 "service" means the delivery of documents to any person or party or to their representative in accordance with these Rules;

3.22 "settlement agreement" means a signed agreement made by the parties and submitted to the OSET, thereby eliminating or narrowing the issues in dispute; and

3.23 “Tribunal” means the Ontario Special Education Tribunal.

Rule 4 - Time Computation

4.1 In the computation of time under these Rules or in any decision of the OSET:

  1. a "day" is a calendar day;
  2. where there is a reference to a number of days between two events, they shall be counted excluding the day on which the first event happens and including the day on which the second event happens;
  3. where the time for doing an act under these Rules expires on a holiday, the act may be done on the next day that is not a holiday;
  4. where a document has been received, or would be deemed to be received, on a holiday, it shall be deemed to be received on the next day that is not a holiday;
  5. where a period of less than seven (7) days is prescribed, holidays shall not be counted;
  6. the OSET may, at any time and on such conditions as it considers appropriate, lengthen or shorten the time for the performance of any obligation under these Rules;
  7. the OSET may direct a party or parties to appear before the Tribunal within a specific timeline; and,
  8. where the Rules require the OSET to perform certain actions within a specific time, the failure to do so will not cause the Tribunal to lose jurisdiction where the action required is performed after the required date.

Rule 5: Service and Filing of Documents

5.1 A document is deemed to have been served, when it is sent by one of the following means:

  1. by regular, registered, or certified mail: five (5) days after the day of mailing;
  2. by overnight courier: two (2) days after the document was given to the courier by the sending party;
  3. by facsimile: on the day of the transmission; or
  4. by e-mail: to be followed by a signed original within ten (10) days.

5.2 A document is deemed to have been filed, when it is sent by one of the following means:

  1. by regular, registered, or certified mail: five (5) days after the day of mailing;
  2. by overnight courier: two (2) days after the document was given to the courier by the sending party;
  3. by facsimile: on the day of the transmission; or
  4. by e-mail: to be followed by a signed original within ten (10) days.

5.3 Fax transmissions (including cover sheet) must not exceed twenty (20) pages, except with the consent of the intended recipient.

5.4 Documents served or filed after 5:00 p.m. shall be deemed to have been served or filed on the next business day that is not a holiday.

5.5 Where the authenticity of a document is in dispute:

  1. the OSET may direct that the party with custody of the original document produce it for inspection to the other parties, either at a scheduled hearing or at another time;
  2. the OSET may direct that the original document, a copy of which has been served or filed, be sent to the OSET by mail or courier.

5.6 A party who serves or files a document shall include with it the name, address, and telephone number of the sender and the receiver, and the name of the proceeding to which the document relates.

Rule 6 - Communications with the OSET

6.1 All communications with the OSET outside a hearing must take place through the Registrar.

6.2 After the appeal is filed, parties must copy the other party on all communications with the OSET.

6.3 Where a party has a representative, all the OSET's communications with that party shall be through the representative.

Rule 7 - Commencement of Appeal

7.1 In accordance with subsection 57(3) of the Education Act, an appellant may appeal to the OSET concerning the identification and/or placement of the pupil if the appellant:

  1. has exhausted all rights of appeal under the regulations in respect of the identification of the pupil as an exceptional pupil and/or the placement of the pupil; and
  2. is dissatisfied with the decision in respect of the identification and/or placement.

7.2 Upon being advised in writing by an appellant of his/her intention to appeal, the Registrar shall notify the Chair and the school board. The Registrar shall send to the appellant a copy of the Rules, including Form A: Notice of Appeal.

7.3 Within twenty (20) days of the receipt of Form A, the appellant shall file with the Registrar a completed Form A, with the required attachments.

7.4 Upon receipt, the Registrar shall send the completed Form A, with the required attachments, to the Chair and the school board.

7.5 Within ten (10) days of the receipt of the completed Form A, the school board shall file with the Registrar its completed Form B, with the required attachments, (if any).

7.6 Upon receipt, the Registrar shall send the completed Form B, with any required attachments, to the Chair and the appellant.

Rule 8 - Pre-Hearing Conference

8.1 A pre-hearing conference ("conference") with the hearing panel and the parties will be held within twenty (20) days of the receipt of the completed Form B by the Registrar. The purpose of the conference is to discuss:

  1. the identification of the parties;
  2. the identification of any other persons who, in the opinion of one or more parties, may be affected by the proceedings;
  3. the identification of any accommodation needs of the parties or participants;
  4. the identification and clarification of issues and remedies;
  5. the setting of dates for mediation, if the parties have agreed to participate in mediation;
  6. the setting of dates for the exchange of information and disclosure;
  7. the setting of dates for hearing preliminary motions (including jurisdictional issues); and
  8. the setting of dates for the hearing on the merits of the appeal.

8.2 The conference may consider any procedural matters, including, but not limited to, the following:

  1. issues relating to disclosure and the exchange of information;
  2. identification of preliminary motions;
  3. procedural issues, including the dates by which any steps in the proceeding are to be taken and/or completed;
  4. the estimated duration of the hearing; and
  5. the method(s) by which evidence shall be presented.

8.3 During the conference the hearing panel may make such rulings as deemed necessary for the proper disposition of the proceeding.

8.4 The hearing panel may decline to rule on any issue raised at the conference and may instead direct that the issue be dealt with during the hearing.

8.5 Where a party receives a notice of the conference and the party fails to attend without having notified the OSET, the hearing panel may proceed in his/her absence.

8.6 During the conference, the panel chair will ask whether the parties are willing to participate in a mediation process. If the parties agree to participate in mediation, the hearing panel will set hearing dates that allow the parties a reasonable period of time within which to attempt to mediate all or some of the issues in the appeal.

8.7 The hearing panel may direct a further conference to deal with any issues as set out in this rule.

Rule 9 - Mediation

9.1 Mediation, as further outlined in the Practice Direction - Mediation may be held for the purpose of attempting to reach a settlement or to simplify the issues. The OSET will offer to provide mediation at the time of the conference. The member of the OSET who conducts the mediation shall not participate at the hearing of the appeal.

9.2 The mediator may exclude everyone but the parties from the mediation.

9.3 All documents submitted and all statements made at the mediation are confidential and without prejudice.

9.4 Any documents shared at the mediation shall:

  1. be returned to the party who filed the documents; or
  2. be destroyed after the mediation;
  3. not be considered to have been filed in the proceeding; and
  4. not be used by the other party in evidence before the OSET or in any other civil procedure.

9.5 The mediator shall prepare a report in accordance with the Practice Direction - Mediation.

9.6 If the parties do not settle the appeal in its entirety, the hearing will take place without reference to the information disclosed during mediation, except with the prior consent of all parties.

9.7 Where the parties have reached an agreement on any of the issues in the proceeding, the OSET will dispose of these issues without a hearing and will issue an order accordingly.

9.8 Where the parties have reached an agreement on all of the issues in the proceeding, the OSET will issue an order disposing of the appeal.

9.9 The OSET may issue a consent order, in accordance with the Practice Direction - Consent Orders.

9.10 When deemed appropriate, the OSET may remain seized in accordance with the Practice Direction - Seized Cases.

9.11 Although the OSET encourages mediation, where it appears that the parties will not reach an agreement, the OSET will proceed with the appeal.

Rule 10 - Format of Proceedings

10.1 Proceedings may be conducted in a variety of formats, including in person, in writing (by exchange of documents), by electronic means (by teleconference or video-conference), or any combination of these, as determined by the OSET.

10.2 The OSET may impose any conditions regarding a written or electronic hearing that it considers appropriate.

10.3 The OSET shall not hold a written hearing or an electronic hearing if a party satisfies the OSET that doing so would cause prejudice, unless the only purpose of the hearing is to deal with procedural matters.

10.4 Hearings will be open to the public except where the OSET is of the opinion that:

  1. matters involving public security may be disclosed; or
  2. intimate financial or personal matters or other matters of a similar nature may be disclosed, and the interest in avoiding disclosure outweighs the public interest of an open hearing.

10.5 Where a hearing or part of a hearing is closed, the OSET may make such orders as are appropriate to maintain the confidentiality of the hearing and the documents referred to therein.

10.6 Removed.

Rule 11 - Preliminary Motions

11.1 A party who wishes to bring a preliminary motion must notify the Registrar.

11.2 The Registrar will arrange for a pre-hearing conference with the parties and the hearing panel.

11.3 At the conference, the hearing panel will set dates for:

  1. the exchange of materials on the motion;
  2. the hearing of the motion.

11.4 The party bringing the motion shall serve the responding party and file with the OSET on or before the date set by the hearing panel a statement setting out:

  1. the grounds for the motion;
  2. the remedy sought;
  3. the witnesses, if any, to be called on the motion;
  4. a summary of the witnesses' evidence; and
  5. a list of any documents that are to be introduced as evidence.

11.5 The party responding to the motion shall serve the party bringing the motion and shall file with the OSET on or before the date set by the hearing panel at the conference:

  1. its statement responding to the motion;
  2. the witnesses it intends to call on the motion;
  3. a summary of the witnesses' evidence; and
  4. a list of any documents that are to be introduced as evidence.

11.6 The preliminary motion may be heard before or at the same time as the hearing of the appeal.

Rule 12 - Exchange of Information and Disclosure

12.1 On or before a date set by the hearing panel, normally thirty (30) days before the hearing of the appeal, the appellant will:

  1. serve the school board and file with the OSET a list of witnesses and for each witness a summary of his or her evidence; and
  2. serve the school board and file with the OSET a book or binder containing a copy of all documents which he or she intends to rely upon at the hearing.

12.2 On or before a date set by the hearing panel, normally fifteen (15) days before the hearing of the appeal, the school board will:

  1. serve the appellant and file with the OSET a list of witnesses and a summary of the witnesses' evidence; and
  2. serve the appellant and file with the OSET a book or binder containing a copy of all documents which it intends to rely upon at the hearing.

12.3 At any time in a proceeding, the OSET may order any party to provide to the other party and to the OSET such particulars, information, or documents as the OSET considers necessary to enable the other party or the OSET to obtain a full and satisfactory understanding of the issues.

12.4 If a party wants to submit a document or other item as evidence but has failed to disclose this document, the party may not refer to the document in evidence at the hearing without the consent of the OSET, which may be given on such terms and conditions as the OSET considers just.

12.5 If the good character, propriety of conduct, or competence of a party is an issue in a proceeding, the party making such allegations shall, before the hearing, disclose to the party against whom the allegations are made the nature of the allegations and all evidence in the party's possession or control relevant to the allegations.

12.6 Removed.

Rule 13 - Witnesses

13.1 The student who is the subject of the appeal and is sixteen (16) years of age or older is encouraged attend the hearing and to serve as a witness in accordance with the Practice Direction - Student as Witness.

13.2 Not less than fifteen (15) days before the commencement of the hearing, a party who intends to call an expert witness shall serve on every other party and file with the OSET:

  1. a statement of the name, address and qualifications of the expert witness;
  2. the report of the expert witness or, where a report is not prepared but the expert witness is to testify, a summary of the proposed testimony; and
  3. the expert witness's resume.

13.3 The OSET may issue a summons to a potential witness who is not willing to appear voluntarily at a hearing or requires an official document in order to be present at the hearing.

13.4 To obtain a summons from the OSET, the party who wants a witness to attend at the hearing must fill out a Request for Summons form and submit it to the OSET not less than fifteen (15) days before the hearing. The party must complete the Request for Summons form in accordance with the Practice Direction - Issuing a Summons.

13.5 Once the OSET has approved the request, the OSET will provide a Summons to the party. The summons must be served personally on the person to whom it is directed together with attendance money calculated in accordance with Tariff A of the Rules of Civil Procedure. The Summons must be served no later than five ten (10) days before the time of attendance.

Rule 14 - Evidence

14.1 The hearing panel may direct in what form evidence shall be presented.

14.2 The hearing panel may admit any evidence, including hearsay, relevant to the subject-matter of the proceeding.

14.3 The hearing panel may accept into evidence any written statement of facts agreed upon by the parties. Documents filed with the OSET are not evidence before the hearing panel until such time as each document is entered into evidence at the hearing

Rule 15 - Decisions

15.1 The OSET shall provide the parties or their representatives with a copy of the OSET's decision on the appeal, including its written reasons, within ninety (90) days after completion of the hearing.

15.2 The OSET may at any time clarify and/or correct a typographical error, error of calculation, misstatement, ambiguity, technical error, or other similar error made in its decision.

15.3 The OSET may make interim decisions and orders. An interim decision or order need not be accompanied by reasons.

Rule 16 - Panel Members

16.1 Where a member of a hearing panel who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision making, the remaining member or members may complete the hearing and issue a decision.

16.2 If the term of office of a OSET member who has participated in a hearing expires before a decision is issued, the member's term shall be deemed to continue for the purpose of completing the decision.

Rule 17 - Consent Orders

17.1 An agreement reached between the parties, that is within the jurisdiction of the OSET may be issued as a consent order by the OSET at the request of the parties.

17.2 The Tribunal will follow the procedures for issuing a consent order as outlined in the Practice Direction - Consent Orders.

Rule 18 - Seized Cases

18.1 The OSET may, when deemed appropriate, remain seized of a decision for a specified period of time in accordance with the Practice Direction - Seized Cases.

Rule 19 - Dismissal of an Appeal Without a Hearing

19.1 The OSET may dismiss an appeal without a hearing for any of the following reasons:

  1. the appeal is frivolous, vexatious, or commenced in bad faith;
  2. the appeal relates to matters that are outside the jurisdiction of the tribunal;
  3. the appellant has not satisfied subsection 57(3) of the Education Act;
  4. some other aspect of the legislative requirement for bringing the appeal has not been met; and
  5. one or both of the parties have not complied with the directions of the tribunal.

19.2 If the OSET proposes to dismiss an appeal without a hearing, it shall send a notice to all of the parties, stating:

  1. the reasons for the proposed decision; and
  2. the deadline for making submissions.

19.3 The parties who receive the notice sent under Rule 19.2 may file written submissions with the OSET within the time set out in the notice, which is usually fourteen (14) days after the date of the notice.

19.4 The OSET, after considering any submissions filed by the parties, may:

  1. dismiss the appeal with or without further reasons; or
  2. decide that the matter should proceed to a hearing.

The OSET shall notify the parties of its decision.