J.B. v. Toronto District School Board, 2009 HRTO 1030

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.B. Applicant

-and-

Toronto District School Board, Louie Papathanasakis, Marlene Steele and Tom Kolin Respondents

AND B E T W E E N:

C.F. Applicant

-and-

Toronto District School Board, Louie Papathanasakis, Marlene Steele and Tom Kolin Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: July 13, 2009 Citation: 2009 HRTO 1030 Indexed as: J.B. v. Toronto District School Board

Introduction

1These Applications were filed May 1, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses a joint request by the parties for an order combining the Applications, an order removing the litigation guardians, and a Rule 5.11 order.

BACKGROUND

3The Applications arise from suspensions imposed on the applicants while they were students at the respondent school board. The suspensions arose from incidents which occurred at their school in or around December 2005 and resulted in charges being laid against the applicants by the police.

Request to Consolidate the Applications

4The Applications raise similar facts and issues and I find that it appropriate to process the Applications together.

Request to Remove the Litigation Guardians

5As the applicants are now over 18, the request to remove the litigation guardians is granted.

Requests for Rule 5.11 Order

6The parties jointly requested a confidentiality order made pursuant to Rule 5.11 substituting all the applicants and witnesses names with their respective initials, that all documentation and verbal communications by the Tribunal and anyone communicating with the Tribunal be cautioned with respect to disclosing the applicants’ names and that no identifying information be provided by the Tribunal or the parties about these applicants to anyone other than the party participants, their counsel or members of the Tribunal.

7The case law is clear that request for a Rule 5.11 order will not simply be issued on consent, as such an order potentially engages the principle of openness of legal proceedings and the rights of freedom of expression and freedom of the press.

8The applicants were minors at the time of the time of the events giving rise to these complaints. Because the applicants were charged as minors, this is a matter to which the Youth Criminal Justice Act (“YCJA”) applies. The YCJA prohibits the publication of the identity of persons charged under the YCJA or victims of or witnesses to YCJA offences or other information that would lead to the identification of a person charged, victims or witnesses. Section 110(1) reads:

Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(3) provides an exception, after the young person attains the age of 18:

A young person referred to subsection (1) may, after he or she attains the age of 18 years, publish or cause to be published information that would identify him or her as having been dealt with under this Act . . . (emphasis added)

9Section 111(1) provides:

(…) no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

10Information that would serve to identify a child or young person as a victim or witness may, however, be published after he or she attains the age of 18 years or with consent of his or her parents. (s. 111(2))

11In addition, the hearing of these Applications will involve some reference to the applicants’ Ontario Student Record (“OSR”), which is subject to certain restrictions under the Education Act, R.S.O. 1990, c.E.2, as amended. Section 266(2) provides that an OSR is "privileged for the information and use of supervisory officers and the principal and teachers of the school for the improvement of instruction of the pupil."

12The OSR "is not available to any other person" and is "not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding," without the written permission of the parent or guardian of the pupil or, when the pupil is an adult, the written permission of the pupil.

13Section 266(9) provides that, except where the OSR is introduced as provided in s. 266, no person shall be required in any trial or other proceeding to give evidence in respect of the content of the record.

14Section 266(10) provides as follows:

266(10) Except as permitted under this section, every person shall preserve secrecy in respect of the content of a record that comes to the person's knowledge in the course of his or her duties or employment, and no such person shall communicate any such knowledge to any other person except,

a) as may be required in the performance of his or her duties; or

b) with the written consent of the parent or guardian of the pupil where the pupil is a minor; or

c) with the written consent of the pupil where the pupil is an adult.

15The combination of these statutory regimes indicates a legislative intention to assure some measure of privacy protection to young persons who come into conflict with the criminal justice system. In my view, the best way to reconcile this legislative intention with the principle of open justice is to refer to the applicants, the victims and the witnesses by their initials rather than their names. A similar approach was adopted by the Divisional Court in K.B. v. Toronto District School Board [2006] O.J. No. 1765.

ORDER

16For all of the foregoing reasons, the Tribunal makes the following Order:

a. that the names of the applicants and witnesses be substituted with their initials in any communication by or with the Tribunal about this case;

b. that anyone who makes any enquiry about this case shall be informed that the names of applicants and the witnesses are subject to a Rule 5.11 order protecting their confidentiality and cannot be disclosed;

c. that the Tribunal staff and the parties shall not identify the applicants‘ names.