HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua Regisford by his next friend Vidoll Regisford

Applicant

-and-

Dufferin-Peel Catholic District School Board, Casey Homick

and Jennifer Pouw-Witter

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: September 10, 2009

Citation: 2009 HRTO 1429

Indexed as: Regisford v. Dufferin-Peel Catholic District School Board

WRITTEN SUBMISSIONS BY

Joshua Regisford ) Ron Franklin, Counsel

by his next friend Vidoll Regisford )

Dufferin-Peel Catholic District )

School Board, Casey Homick ) Nadya Tymochenko, Counsel

and Jennifer Pouw-Witter )

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The hearing is scheduled to be held on September 22, 23 and 24, 2009 in Toronto.

2The applicant made three separate Requests for Orders During Proceedings (RFOP), dated July 30, 2009, August 7, 2009 and August 12, 2009. The respondents did not object to the August RFOPs and the applicant has now delivered and filed the materials which were the subject-matter of those Requests. In these circumstances it is not necessary for me to address those Requests.

3In the RFOP dated July 30, 2009, the applicant sought additional particulars and disclosure. Specifically, the applicant requested that the respondents be ordered to provide:

(a) Copies of provincial report cards for the reporting period June 2007 for all students in the grade 10 English course (ENG2D1-08) taught by the respondent Ms. Pouw-Witter.

(b) Documentation and particulars setting out the content, specific dates and duration of the training provided to a number of listed individuals as well as the means used to evaluate each individual’s understanding of the subject matter.

(c) Copies of all of Ms. Pouw-Witter’s Teacher Performance Appraisals and similarly focused and related documents.

4In support of the Request, counsel argues that the report cards are relevant to the question of differential treatment on the basis of race, colour, ancestry and place of origin between the applicant and other students in the class. Regarding the training particulars, counsel argues that the respondents had relied on the fact that an internal investigation was conducted into the complaints. The applicant wishes to challenge the soundness of that investigation and argues it is relevant whether the individuals involved in designing and implementing the investigation were sufficiently qualified in human rights principles to administer an effective and meaningful investigation into race-related complaints. Finally, counsel for the applicant argues that the Teacher Performance Appraisals will provide relevant information about any history of Code-related issues with respect to the personal respondent, Ms. Pouw-Witter.

5In submissions dated August 13, 2009, the respondents responded to the July 30 RFOP. Counsel confirmed that all of the Teaching Performance Appraisals and similarly related documents had already been produced to the applicant as required by the Rules. Counsel also argued that the respondents had already provided documents outlining the training sessions, educational conferences and/or workshops attended by all of the listed individuals relating to their responsibilities to manage the school. The respondents indicated that they do not object to conducting additional searches for documents, nor to furnishing further particulars recalled by the individuals. They indicated they would need additional time to fulfil such an order.

6On the issue of the report cards, the respondents maintain that report cards of other students in the applicant’s grade 10 English class are not arguably relevant to the issue in this case, which centres on an alleged slur by Ms. Pouw-Witter in the applicant’s grade 11 English class. The respondents also argue that provincial report cards contain confidential, personal information and are subject to statutory privilege pursuant to section 266(2) of the Education Act, R.S.O. 1990, c. E.2, as amended.

ANALYSIS AND DECISION

7With respect to the Teaching Performance Appraisals and information relating to the training of school investigators, if appears that the respondents have discharged their obligations under Rule 16 and, in any event, will make a further effort to ensure that disclosure is complete. If the applicant has any remaining issues, these can be raised at the outset of the hearing.

Disclosure of report cards

8Disclosure obligations are outlined at Rule 16 of the Tribunal’s Rules, which provides as follows:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

9The test for arguable relevance is not stringent. The applicant correctly refers to Lampi v. Princess House Products Canada Inc. (2008), HRTO 1 at para. 8, where the Tribunal stated that the party seeking production “must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal.” Determining that documents are arguably relevant does not necessarily mean they will be admissible. The Tribunal may refuse to order production of arguably relevant documents “if they are privileged, if the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.” (Lampi, at para. 10)

10Pursuant to section 266(2) of the Education Act, “pupil records” are protected by statutory privilege and are subject to disclosure only with the written permission of the parent or guardian of the student, or where the student is an adult, the student’s prior written consent. The Tribunal has previously held that a “pupil record” consists of the student’s Ontario Student Record (OSR), which includes the student’s report cards. (Persaud v. Toronto District School Board, (2008) HRTO 92 at paras. 38-39.

11Rule 16.1(b) of the Tribunal’s Rules expressly excludes privileged documents from disclosure obligations. The Tribunal has no power to order privileged documents to be disclosed, regardless of their relevance or probative value.

ORDER

12The Tribunal orders as follows:

(a) The respondents shall provide further particulars regarding the training, credentials and experience of the named school administrators and their supervisors to conduct investigations of race-based complaints by September 17, 2009.

(b) The applicant’s request for disclosure and production of the report cards of other students in the applicant’s grade 10 English class is denied.