Amanda Cristen Smallwood

Costs decision following a refusals motion concerning whether documents and information sought on discovery were protected by statutory privilege under s. 266(2) of the Education Act.

The moving party’s motion to compel answers was largely unsuccessful after the court determined the privilege applied, though the moving party succeeded on a limited issue regarding an investigator’s report and several other matters were resolved consensually.

The successful responding party sought over $15,000 in partial indemnity costs.

The court held the requested amount was excessive given the simplicity of the factual issues and that certain claimed time related to general discovery obligations rather than the motion itself.

Applying proportionality and fairness principles under the Courts of Justice Act and Rules of Civil Procedure, the court awarded reduced costs of $6,000 against the moving party, with no costs payable by co-defendants who had merely responded to the motion.

The plaintiff brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking to compel a private school to answer refused questions on discovery and produce unredacted documents identifying non‑party students and parents who may have information relevant to claims including defamation, malicious prosecution, and breach of contract.

The school resisted disclosure relying on the statutory privilege for Ontario Student Records under s. 266(2) of the Education Act.

The court found the plaintiff’s narrower interpretation of the privilege persuasive but concluded it was bound by prior authority holding that students’ names and addresses form part of the OSR and are protected by the statutory privilege.

As a result, the court held the information could not be disclosed without consent of the students or parents.

The motion to compel answers and production was therefore dismissed, subject only to disclosure that would not identify non‑party students or their parents.