E.P. v. Ottawa Catholic School Board, 2009 HRTO 1702

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.P. by her litigation guardian, Wendy Fournier

Applicant

-and-

Ottawa Catholic School Board

and Anne Marie Duncan

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 19, 2009

Citation: 2009 HRTO 1702

Indexed as: E.P. v. Ottawa Catholic School Board

1The hearing in this Application is scheduled for November 26, 2009.

Production

2The respondents seek an Order from the Tribunal authorizing them to disclose all or part of the Ontario Student Record (“OSR”) of the applicant. The applicant’s litigation guardian originally submitted part of the OSR to the Tribunal and in a prior Interim Decision, I held that it was unfair for her to rely upon part of the OSR and withhold her consent for the respondents to rely upon other parts. The applicant’s litigation guardian has since withdrawn her intention to rely upon any OSR documents.

3The Education Act, R.S.O. 1990 C. E.2, as amended, provides that the OSR is a privileged document, and may not be relied upon in any hearing, except with the written consent of the applicant or his/her guardian.

266.(1) In this section, except in subsection (12),

"record", in respect of a pupil, means a record under clause 265 (1) (d).

(2) A record 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, and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record, without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil.

4The central issue in this case is whether the respondents appropriately accommodated the applicant’s exceptionalities. The respondents assert that the information contained in the OSR relating to the year in question is relevant and indeed crucial to establish a response.

5In a prior Case Assessment Direction, I ordered the applicant’s litigation guardian to consent to the disclosure of the OSR to the Tribunal for review, to determine how to proceed. I also ordered the respondents to disclose all the other arguably relevant documents in their possession so that I can assess the relative importance of the OSR and the available evidence.

6I have now reviewed the material in the OSR and conclude that the IPRCs and IEPs from June 2006 to October 2007 are crucial to an understanding of the applicant’s needs. Some of these documents had been relied upon by the applicant initially but she subsequently withdrew her reliance upon them if it meant that other parts of the OSR would be relied upon.

7In my view, the respondents must be permitted to rely upon the entire IPRCs and IEPs from June 2006 to October 2007 in order to hold a fair and just hearing. It would be abuse of process for the applicant’s litigation guardian to withhold consent to the production of documents that are crucial to the resolution of the Application. The applicant’s litigation guardian is ordered to provide her written consent to the disclosure of the IPRCs and IEPs from June 2006 to October 2007 in the OSR within five days of the date of this Interim Decision.

Case Management

8In her statement of additional facts, the applicant has submitted documents relating to the applicant’s 2001 to 2005 school years and events post-dating the complaint. The transitional provisions of the Code provide that the Application must relate to the subject matter of the complaint filed at the Commission. Therefore, it appears to me that the subject matter of this Application relates only to the events between August 2006 and September 2007.

9However, I understand that the applicant left the respondent school board in 2008 and the parties may understand the subject matter of the Application to relate to the 2007/08 year.

10The parties should be prepared to address the proper subject matter of the Application at the commencement of the hearing on November 26, 2009.