Appeal and Hearing Process

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Before you appeal to the OSET

Every school board has a Parent's Guide to Special Education that describes the procedures for identification of exceptionalities and making decisions about placement. It also explains the IPRC process. You can get a copy of the guide from your principal or your school board. The Ministry of Education website also has a lot of information and resources on special education.

If you are not satisfied with the identification and/or placement decisions made by your child’s school board, there are steps you can take at the school board level to try to resolve your concerns. These include bringing your complaint to an Identification, Placement and Review Committee (IPRC) and, if that doesn’t work, appealing to a Special Education Appeal Board (SEAB).

At that point, if you are still not satisfied with your child’s placement, then you can appeal to the OSET. The Education Act requires parents to “exhaust all rights of appeal” by going through the IPRC and SEAB, before making an appeal to the OSET.

The Identification, Placement, and Review Committee

Request an Identification, Placement and Review Committee (IPRC)

The request for an IPRC must be in writing. Send it to your school principal.

Note: The principal can also request an IPRC. If the principal decides to do this you will receive written notice of the request.

Response from the principal

The principal must respond in writing to your request within 15 days. The principal’s response must include:

• an acknowledgement of the parents’ request
• the approximate date of the IPRC meeting
• a copy of the school board’s Parent's Guide to Special Education

If the principal does not respond to your request or refuses to hold the IPRC you can request a hearing by the Special Education Appeal Board. To request a SEAB hearing, contact:

• the principal (again)
• your school board superintendent
• the district office of the Ministry of Education

Before requesting an SEAB hearing, you may want to get advice from a parent advocacy group or legal counsel.

The IPRC Meeting

All school boards must have an IPRC but some boards have more than one. An IPRC might deal only with elementary school students, students in a particular geographical area, or students with particular exceptionalities. The IPRC is made up of at least three people; one must be a principal or supervisory officer of the school board and the others can be teachers, special education consultants or other professionals employed by the board.

At the meeting, the IPRC will:

• decide whether to identify the student as exceptional
• identify the areas of the student’s exceptionality. The Ministry of Education provides categories and definitions of exceptionalities in Standards for School Boards' Special Education Plans at pages 32-34 (Appendix D)
• decide an appropriate placement for the student
• discuss programming and services for the student, if the parents request it.

You are entitled to attend and participate in all IPRC discussions about the student and to be present when the committee’s identification and placement decision is made. If your child is 16 or older, he or she can also attend.

The IPRC needs to review the student’s identification and placement at least once each school year.

Disagreeing with the IPRC Decision

If the parents do not appeal the IPRC decision, the school board will instruct the principal to implement the IPRC decision, even if the parents don’t agree with it.

If you do not agree with the identification and/or placement decision made by the IPRC, you have two choices:

1. Ask for a second IPRC:

If you ask for a second IPRC, you need to make your request within 15 days of receiving the IPRC decision.

If you do not agree with the decision made after the second IPRC, you have 15 days to file an appeal to the SEAB.

2. Appeal directly to the SEAB:

If you do not want to ask for a second IPRC, you can appeal the IPRC decision to the SEAB by filing a notice of appeal with the secretary of the school board – this will usually be the Director of Education. You must do this within 30 days of receiving the IPRC decision.

The Special Education Appeal Board

After receiving the notice of appeal of the IPRC decision, the school board must arrange a Special Education Appeal Board (SEAB) meeting. The SEAB has two members and chair. The parents and the school board each appoint a member. The two members usually choose the SEAB chair. The school board has to make sure the members and the chairperson are chosen within of 15 days of when it receives the notice of appeal.

The SEAB will consider the IPRC decision and the parents’ request and issue a recommendation to the school board within 3 days of the hearing. The school board will consider the recommendation, decide what action to take, and send a written decision to the parents.

Filing an Appeal with the Ontario Special Education Tribunal

The OSET Rules of Procedure set timelines for completing certain steps in the appeal process.

If you do not agree with the school board’s decision about whether to act on the SEAB’s recommendation, you have 30 days from when you receive the decision to email or write the OSET.

The OSET will send you the Form A: Notice of Appeal, or you can download the Notice of Appeal here. You have 20 days from when you receive or download the Notice of Appeal to file it with the OSET. When you file the form, include a copy of the original IPRC decision, the SEAB report and the school board’s decision. If the form is not complete, the OSET will return it to you asking for the missing information.

The OSET will email or mail the completed Notice of Appeal to the school board.

The school board has 10 days to file a Form B: Response to a Notice of Appeal with the OSET. The OSET will email or mail the completed Response to a Notice of Appeal and any accompanying documents to you.

For detailed timelines and procedures for filing, see: Forms and Filing.

Mediation and the Hearing

The pre-hearing conference

The OSET will schedule mediation if the parties agreed to it. (More information on mediation follows.) Otherwise, a pre-hearing conference will be scheduled with an adjudicator. The purpose of the pre-hearing conference is to:

• discuss the procedures that will be followed at the hearing
• clarify the issues and the possible solution (also called a “remedy”)
• identify any preliminary issues such as:
  • whether the appeal relates to identification or placement or is really a dispute about programming (which is not within the OSET’s power to resolve.)
  • whether the appeal was made in time
• set dates for hearing the preliminary issues and for the appeal
• set dates for sharing information with the OSET and the other party (called “disclosure”)
• identify any accommodation needs of the participants
• invite the parties to consider mediation. Mediation is only used if both parties agree.

The pre-hearing conference is usually held by phone. However, it can be held by videoconference or in writing.

Mediation

Mediation is a voluntary process that only takes place if both parties agree to it. You are encouraged to consider mediation. You can agree to mediation by ticking a box on the Form A: Notice of Appeal or Form B: Response to a Notice of Appeal.

The goal of mediation is to help the parties reach a resolution (settlement) that resolves the issues in the appeal. The OSET mediates disputes using an active listening approach.  This means that both sides will have an opportunity to tell a mediator, experienced in special education, what happened and what they would like to see done about it.

The mediator will not make any decisions. He or she will consider what you say and look at the documents to help you find a resolution that is satisfactory to both sides.

If you agree to mediation, both parties must file a signed Agreement to Mediation with the OSET. You can either send the agreement to the OSET or give it to the mediator on the day of your mediation.

The OSET will send a Notice of Mediation to both parties. The notice will include the date, time and format of the mediation.

If the mediation resolves the issues in the appeal, the parents can withdraw the appeal or the parties can request a consent order from the OSET. See the Practice Direction on Consent Orders.

If some or all the issues in the appeal remain in dispute after mediation, a pre-hearing conference will be held.

Confidentiality at mediation

Mediation is confidential so that the parties feel they can speak openly about their concerns and possible solutions. Unless the parties specifically agree, nothing that is said or discussed in mediation can be used in the OSET hearing or any other proceeding. For example, if an OSET hearing is held, the mediator cannot testify about what occurred during mediation and will not discuss the mediation with the adjudicators who are hearing the appeal.

Preparing for the Hearing

Representation before the OSET

The OSET does not expect you to be represented at a hearing. You may be self-represented or you can choose a legal representative or support person to help you prepare for and participate in your appeal.

A legal representative may be a lawyer or paralegal. If you have a legal representative, the OSET will communicate with you through the representative. If contact information for your representative changes, notify the OSET as soon as possible and the OSET will notify the other party.

A support person could be a family member, a friend, an employee or volunteer from an organization, such as the parent organizations for the various exceptionalities. A support person attends the hearing to provide moral support and assistance. He or she may not provide legal advice or present your case at the hearing.

See also:

• SJTO Practice Direction on Representation
• Getting Legal Help
• Info Sheet: Representation

Documents and Disclosure

You need to determine what documents and information you will present at the hearing and provide copies to the other party and the OSET before the hearing. This exchange of documents is called disclosure. Disclosure will be discussed at the pre-hearing conference.

The documents disclosed could include:

• Assessment information
• Report cards
• Individual Education Plans
• Letters and reports
• Information about the placement, special education programs and services that are most likely to meet the student’s needs
• A list of witnesses and summaries of what each witness will testify about

Each party (the parents and the school board) must provide each other and the OSET with copies of the documents to be used in the hearing. These copies should have a table of contents and page numbering.  Submit an electronic version of these documents to the OSET at the same time as the copy.

The parents must give the documents to the OSET and the school board’s lawyer by the date the parties agreed to at the pre-hearing conference.  This is usually at least 30 days before the hearing.

The school board must give its documents to the OSET and the parents or their legal representative by the date agreed to at the pre-hearing conference. This is usually at least 15 days before the hearing.

Witnesses

A person who can give a firsthand account of something seen, heard or experienced is called a witness. The information that a witness gives is called evidence. A witness may be called by either party to provide information related to the appeal. You must identify your witnesses before the hearing begins and provide a written summary of the evidence each witness will give. For more information see: Info Sheet: Witnesses.

Summons to Witnesses

You need to be sure that your witnesses will attend the hearing and that they know the time, date and format.

If someone is unwilling to attend or requires an official request to attend the hearing (to justify an absence from work, for example), you can complete a Request for Issuing a Summons. The OSET adjudicator who will chair the hearing will review the form and decide if the person has to attend.

Timing for the Request for Summons

You need to submit the Request for Issuing a Summons form to the OSET no later than 15 days before the hearing. If the adjudicator approves the request, you will need to serve (personally deliver) the request to the witness no later than 10 days before the day they are expected to attend the hearing.

For more information, see:

• Info Sheet: Witnesses
• Practice Direction on Issuing a Summons.

The Hearing

A hearing gives parents or guardians the opportunity to present and prove their case to the OSET.

At a hearing an adjudicator will hear the evidence and make a decision.

The adjudicator will determine what documents will be considered as evidence. Evidence must be relevant, current and help the adjudicator understand the strengths and needs of the student.

In most cases, hearings are open to the public. Hearings will last as long as it takes to hear the evidence, usually from 1 – 5 days. Hearings usually start in the morning with a break for lunch and continue all afternoon. For more details about the hearing, see Info Sheet: At the Hearing.

After the Hearing

Once the hearing ends, the adjudicator reviews the facts and evidence presented during the hearing, and considers the applicable law. The OSET will give its written decision with reasons within 90 days (3 months) of the hearing.

Remaining seized of the case

The OSET may decide to continue to be involved with the implementation of its decision for a period of time. This is called “remaining seized of the case”. See the Practice Direction on Seized Cases.

Privacy and confidentiality of decisions

The Freedom of Information and Protection of Privacy Act prevents the disclosure of personal information about someone without his or her consent. Because of this legislation, and the sensitive and confidential nature of information about students with special needs, OSET decisions are written in two formats:

• The parties involved in the appeal will receive the official version of the decision
• A second version, which has all student’s identifying information removed (name, date of birth, etc.) will be posted on the Canadian Legal Information Institute website where anyone can read it.

Closing a case after the hearing

The OSET will close a case when:

• it has issued a decision but has not remained seized of the case
• the time period for which the OSET has remained seized of a case has expired
• a parent or guardian withdraws the appeal
• the OSET considers it appropriate

No appeal

The decision of the OSET is final and binding. There is no right of appeal for a decision of the OSET, and a party cannot apply to the OSET for a re-hearing. However, in limited circumstances, you may apply to the Divisional Court for judicial review of the decision. The Divisional Court’s website provides some information about the judicial review process.

The Divisional Court’s decisions are available on CanLII. You may wish to get legal advice before asking for a judicial review.