LK v. Upper Grand District School Board, 2019 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LK

Appellant

-and-

Upper Grand District School Board

Respondent

DECISION

Adjudicator: Andrea Himel Date: February 26, 2019 Citation: 2019 CFSRB 5 Indexed as: LK v Upper Grand District School Board (EA 311.7)

WRITTEN SUBMISSIONS

LK, Appellant David Baker, Counsel, and Lisa Lepine, Student at Law

Upper Grand District School Board, Respondent Eric DelJunco and Sarah Molyneaux, Counsel

1On January 8 and 9, 2019, the CFSRB heard an Appeal pursuant to section 311.7 of the Education Act of the School Board’s decision of November 20, 2018 to expel GK (the “Pupil”) from JM Public School (“JMPS”). The expulsion was upheld by Order issued January 17, 2019 with Reasons issued February 4, 2019. See 2019 CFSRB 2. The Reasons reproduce the Order at para. 155.

2The January 17 Order and February 4 Reasons contained the CFSRB’s standard confidentiality clause, which is as follows:

Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions, or any other documents or information provided or used in this Appeal, with anyone including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.

3The CFSRB confidentiality order is intended to protect the Pupil’s identity and privacy. The need to protect the identity of a child or young person is consistent across various forms of litigation involving children and youth, including proceedings pursuant to the Youth Criminal Justice Act, 2002 and the Child, Youth and Family Services Act, 2017.

4The parties are now engaged in an application before the Human Rights Tribunal of Ontario (“HRTO”). The Appellant has raised concerns about the Respondent’s reliance on records and evidence that formed part of the evidence before the CFSRB. The Respondent seeks the following rulings from the CFSRB:

a. An order that the confidentiality order does not apply to the Respondent’s own records and evidence and does not prevent the Respondent from relying on any of these records or evidence for the purpose of the HRTO application;

b. Alternatively, an order permitting the Respondent to rely on all of the materials filed with the CFSRB in the expulsion appeal for the purposes of responding to the HRTO application;

c. Further, an order permitting the Respondent to rely on the CFSRB's order issued January 17 and reasons issued February 4 in the context of the HRTO application.

5The Appellant’s response to the Respondent’s request is that the CFSRB should grant an order that all of the information from the CFSRB proceedings concerning what the Respondent knew and what its staff did to accommodate the Pupil be available, to permit him to prepare and argue his case before the HRTO.

6The Respondent does not oppose the CFSRB rescinding the confidentiality orders in relation to the CFSRB evidence and decision, in which case the orders initially sought would be moot.

7For the reasons that follow I direct that each party is permitted to rely on any of their own affidavits and exhibits in the HRTO application. Once filed with the HRTO, either party may share these materials with their witnesses to prepare for the hearing.

8The orders set out below must be adhered to in a manner that continues to protect the Pupil’s identity, for example by using initials in place of his name or other identifiable places (such as his school).

9The Respondent seeks an order that the twelve affidavits that were prepared for the CFSRB hearing and the exhibits may be submitted to the HRTO. These affidavits were prepared based on the Respondent’s own documents and information and were served upon the Appellant prior to the commencement of the CFSRB hearing.

10The Appellant seeks an order that all materials and information from the CFSRB matter be available for use in the HRTO hearing.

11I understand that the Respondent prepared a single set of documents for use before the CFSRB and for use in the HRTO proceeding. I also understand the Appellant’s request to use the CFSRB evidence and materials. There is some overlap of facts between the expulsion appeal and the HRTO application although the legal issues are different.

12It would not be a productive use of either party’s resources to require that a second set of affidavits and exhibits be prepared for the HRTO proceeding. Once filed, the parties should be afforded the opportunity to use these materials to prepare their witnesses for the hearing.

13If the HRTO requires production of anything other than what is contained in this Order, including an unredacted version of the Reasons, either party may make written request to the CFSRB and I will provide further directions. However, given that there is no transcript of the CFSRB's hearing, it is unclear how helpful this may be.

14With respect to the CFSRB's Reasons, the redacted version is available to the parties and to the public, and may be submitted to the HRTO for that tribunal’s consideration. The extent to which my factual findings can be relied upon is an issue for the HRTO to decide.