Matthew Rocca v. Peel District School Board, 2009 HRTO 2036

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Rocca, by his litigation guardians, Nick Rocca and Debra Rocca Applicant

-and-

Peel District School Board, John Stegeman, Tony Pontes and Shirley-Ann Teal Respondents

INTERIM DECISION

Adjudicator: Lorne Slotnick Date: November 27, 2009 Citation: 2009 HRTO 2036 Indexed as: Rocca v. Peel District School Board

APPEARANCES

Matthew Rocca, Applicant ) Debra Rocca, litigation guardian Peel District School Board, ) John Stegeman, Tony Pontes ) Roy Filion, counsel and Shirley-Ann Teal, Respondents )

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a request by the respondents to dismiss the Application because the applicant has failed to comply with an order to produce a relevant document.

BACKGROUND TO COMPLAINT

2The applicant was 7 years old when the complaint that underlies the present Application was filed with the Ontario Human Rights Commission in June 2007. His litigation guardians, Nick Rocca and Debra Rocca, are his parents. The complaint alleges discriminatory treatment of the applicant by the respondent school board and its staff on the grounds of disability. The complaint states that the applicant is a child with PDD/Aspergers. The acronym PDD refers to pervasive developmental disorder.

3The complaint cites a number of incidents at school and says the respondent school board has failed to accommodate the applicant's disability and provide him with the necessary tools to function in the school environment.

HEARING

4The hearing was initially scheduled for April 27 and 28, 2009. However, at the start of the hearing there were still a large number of disputes over document production and other issues, so the two days were used in an attempt to resolve those issues.

5Among the documents in dispute was an assessment by a psychologist, Dr. Sharon Verniero, dated summer 2005, shortly after the applicant was first registered in one of the respondent school board's schools. The applicant's parents first provided it to the respondents in early 2006 with large portions blacked out. School board officials requested to see the entire report, and this became a focus of disagreement between the parties. At one point, however, the full report was provided to Dr. Jack Kamrad, a psychologist on staff of the respondent school board, on condition that he not disclose the contents to anyone.

6At the hearing on April 27, the respondents requested production of the document with no portions blacked out. The applicant, who had legal representation at the time, argued against production of the document. I considered the matter overnight and on April 28, read the following oral ruling:

The test for production of documents is arguable relevance.

This is quite a low threshold to meet, and does not necessarily mean that a document produced for the other side or any particular portion of it will necessarily be considered relevant evidence during the hearing.

In the case of the psychological report in question, I cannot see how it does not meet the test of arguable relevance. Once it meets the test of arguable relevance, the question becomes whether there is any reason why the entire document should not be produced.

The applicant's parents have already disclosed the entire document to at least one person employed by the respondent school board, Dr. Kamrad, a psychologist, albeit with a strict undertaking not to discuss it with anyone, and the applicants seem to believe it was also viewed by another board staff member, Mr. Heron. That disclosure in itself suggests there is no compelling reason not to produce the document.

In my view, there are a number of ways in which the blacked-out portions of the report may have some relevance. If Dr. Kamrad made recommendations or comments on accommodating the applicant after viewing the entire report, those circumstances are directly relevant to the issues in the hearing. Furthermore, the Roccas argue that the school board had all the information it needed from the partial report – that assertion may stand or fall, depending on the contents of the entire report.

Therefore, I am going to order production of the entire report within 21 days of today's date. It may be that the parties can agree that portions of it are irrelevant to the hearing, and I would encourage them to discuss that. If everyone can agree on portions that are irrelevant, those portions can be blacked out in the copy that is put in evidence at the hearing.

7I incorporated this order in a Case Assessment Direction dated May 4, 2009. I specified a deadline of May 19 for compliance with this and several other orders. My Case Assessment Direction also included an order that the hearing would deal with evidence up to April, 2009. On May 28, the respondents wrote to the applicant's representative, with a copy to the Tribunal, reminding him that the applicant had not yet produced the report, and warning that they would raise the matter with the Tribunal if the non-compliance continued.

8On September 14, 2009, I began hearing evidence in the case with the first witness, the respondent Tony Pontes. The applicant did not have legal representation at this point. Counsel for the respondents advised that the applicant had still not complied with the order to produce Dr. Verniero's report, but did not request any action by the Tribunal, and I continued hearing the evidence.

9The next day, before the evidence began, I expressed my concern to the applicant's litigation guardians about the failure to comply with the Tribunal's order. I encouraged them to consult legal counsel about the situation and told them I expected them to comply by the next hearing date, scheduled for several weeks later. I warned them that if the refusal to comply continued, I would entertain submissions by the respondents on what the consequence should be, and I stated that my inclination at the time was to halt the proceedings if the document were not produced.

10The following week, the litigation guardians sent an e-mail message to the Tribunal asking, among other things, that I be removed from hearing the case, on the grounds that I should have disclosed prior to the hearing that I have a child in the school system. (In the course of hearing Mr. Pontes's evidence, I had mentioned that I was familiar with a particular term used in the education system because I had a child in the system.)

11When the hearing resumed on November 2, 2009, I dealt first with the request that I not continue hearing the case, dismissing the request after advising the applicant that my child does not attend a school operated by the respondent school board and that I have no connection to any of the respondents. I ruled that the situation falls far short of the legal test for reasonable apprehension of bias or conflict of interest.

12Counsel for the respondents then advised that Dr. Verniero's report had still not been produced. The applicant's mother, who was the only person attending on behalf of the applicant, confirmed this, and also confirmed that she was in possession of the full report but had no intention of producing it as ordered by the Tribunal. I then asked for the parties' view on how to proceed. These submissions are outlined below.

THE DISPUTED DOCUMENT

13Dr. Verniero's report is an 11-page psychological assessment completed when the applicant was 6 years old, just before he entered Grade 1, and not long before the applicant's parents began requesting accommodation for him. The Tribunal has been provided with the version that has portions blacked out.

14Under the heading Reason for Assessment, there appear to be three paragraphs, but they are entirely blacked out. The following six pages have no blacked-out portions, and contain details of the applicant's results on a number of psychological tests. About half of the three paragraphs under the heading Attention and Concentration are blacked out. Dr. Verniero sets out her conclusions in a section titled Formulation, which is about 2½ pages long and contains 12 paragraphs. Of these 12 paragraphs, five are completely blacked out, and three are partially blacked out.

PARTIES' SUBMISSIONS

15The respondents argue that the applicant's steadfast refusal for six months to comply with an order of the Tribunal must result in dismissal of the entire Application.

16The respondents refer to the Tribunal's Rules of Procedure for Transitional Applications, which give the Tribunal power to require a party to produce a document (Rule 4.3 (k)) and which also empower the Tribunal to make further orders to give effect to its orders (4.3 (l)) and to "take any other action that the Tribunal determines is appropriate" (4.3 (n)). In the circumstances, the only appropriate action is to dismiss the Application, the respondents argue. An indefinite adjournment or stay of proceedings would deny natural justice to the respondents, whose main witness is in the midst of his testimony.

17The respondents have referred me to a number of human rights decisions, mainly from British Columbia, where tribunals have taken action under provisions similar to the Rules here to dismiss complaints after complainants failed to comply with orders. Those decisions are Aurelian v. Cressey Properties Corp. [2008] B.C.H.R.T.D. No. 195 (QL); Neuls v. Ann Davis Transition Society [2007] B.C.H.R.T.D. No. 5 (QL); Johnston v. Canada (Canadian Armed Forces) [2007] C.H.R.D. No. 42 (QL) and Bakhtiyari v. British Columbia Institute of Technology [2007] B.C.H.R.T.D. No 200 (QL), in which the B.C. Human Rights Tribunal said, "a person cannot, with impunity, decide when she will or will not, comply with an order of the Tribunal." (at para. 63)

18After the respondents made submissions on November 2, the applicant asked for two weeks to make written submissions in response, which I granted. The applicant's submission concedes that the report has not been produced, but offers no indication that the applicant intends to comply with the Tribunal's order. The submission questions the relevance of the document, a point on which I have already ruled. The submission also requests confidentiality, a point addressed in the Tribunal's Interim Decision on this issue dated April 15, 2009, 2009 HRTO 437, and repeatedly raised by the applicant at the hearing. The applicant asks the Tribunal to reconsider the request for confidentiality. However, there is no basis to do so.

DECISION

19The Tribunal is faced here with a clear and intentional defiance of an order to produce a relevant document in its entirety. I might add that while this document meets the test of arguable relevance, its significance goes far beyond that: the document may be crucial to the entire case. I have tried to impress upon the applicant's litigation guardians the seriousness of their conduct, but apparently to no avail. In failing to produce the document, the applicant is unfairly prejudicing the ability of the respondents to conduct their case, and is also impairing the ability of the Tribunal to assess all the relevant facts. In my view, this action by the applicant makes it impossible to continue the hearing. The only appropriate consequence is that the Application be dismissed, not only because the deliberate withholding of a key document taints the hearing, but also because parties must appreciate that the Tribunal must act when one of its orders is defied.

20I agree with the respondents that this matter must be dealt with quickly, and that staying the proceedings for a lengthy or indefinite period in the hope that the applicant's litigation guardians will change their minds is both unfair and overly optimistic given the history of this matter. I agree that it is important for the Tribunal to impress upon parties that there will be serious consequences for ignoring Tribunal orders. However, because dismissing the Application is a very serious step, I am prepared to give the applicant one last chance to produce the document before dismissing the Application in its entirety.

21I therefore make the following orders:

• Within seven calendar days of the date of this decision, the applicant will produce to respondents' counsel the complete report of Dr. Sharon Verniero dated summer 2005, with no portions blacked out, failing which the Application will be dismissed without further notice.

• If the applicant's litigation guardians do produce the document within the seven days specified above, they will notify the Registrar-Transition of their compliance and send a copy of the notice to the respondents' counsel. Upon receipt of such notice, respondents' counsel will confirm with the Registrar whether the document has in fact been produced.

• If the applicant's litigation guardians do not produce the document, the Tribunal intends to issue a final Decision dismissing the Application.