Persaud v. Toronto District School Board, 2009 HRTO 26

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Persaud

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto District School Board and Suzana Greenaway

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: January 9, 2009

Citation: 2009 HRTO 26

Indexed as: Persaud v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Toronto District School Board and Suzana Greenaway, Respondents ) John Bell and Sheila MacKinnon, Counsel )

Ontario Human Rights Commission ) Prabhu Rajan and Monmi Goswami, Counsel

1This Interim Decision deals with the issue of the admissibility of the proposed expert evidence of Brian Lindblom and to address correspondence from the respondents in response to my Interim Decision, 2008 HRTO 92, regarding any documents which have been submitted into evidence in this proceeding which form part of a student’s Ontario Student Record (“OSR”).

Proposed Expert Evidence of Brian Lindblom

2In my Interim Decision, I indicated that I would rule on the admissibility of the proposed expert evidence of Brian Lindblom after I heard the testimony of the Chemistry teacher, Andrew Robinson. Mr. Robinson completed his evidence on September 30, 2008.

3Brian Lindblom is a forensic document expert who was retained by the respondent Board to examine a Chemistry exam written by the complainant in June 2005.

4The parties are in agreement that the proper test in this matter is as set out in the decision of the Supreme Court of Canada in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para 17, which sets out four general criteria for the admissibility of opinion evidence, which include:

(a) The evidence is relevant to some issue in the case;

(b) The evidence is necessary to assist the trier of fact;

(c) The evidence does not violate an exclusionary rule; and

(d) The witness is a properly qualified expert.

5In this instance, I only find it necessary to address the second criterion, which is whether the proposed evidence is necessary to assist the trier of fact. I find that it is not.

6The central issue in this case is whether the actions taken to transfer the complainant to another school and later to suspend him constitute racial discrimination in violation of the Ontario Human Rights Code, R.S.O. 1990, c. H-19, as amended (the “Code”). One of the reasons cited by the respondents for taking these actions is an allegation that the complainant cheated on his Chemistry examination. Mr. Robinson, who prepared and administered the examination, testified that he became suspicious that the complainant and one other student were cheating as a result of the very high scores that they achieved in the first component of the examination, which involved multiple choice questions. Mr. Robinson testified that he believed that the complainant and the other student had gotten hold of the answer key. As a result, Mr. Robinson changed some of the questions that appeared on the second component of the Chemistry examination that was administered to these two students.

7Mr. Robinson testified that upon review of the second component of the Chemistry examination as completed by the complainant, he detected that the complainant had made erasures of words and numbers that appeared on the answer key for the original examination and then had over-written the erased answers with new words and numbers that responded to the changed questions. With one exception, Mr. Robinson stated in his evidence that at the hearing on September 30, 2008, he was still able to make out the words and numbers that had been erased. When asked expressly whether, with this one exception, there were other erasures that he recalled seeing at the time he first reviewed the examination but which he could not now see at the time of the hearing, Mr. Robinson unequivocally responded that there weren’t (Transcript, pp. 1694-5, ll. 22-2).

8During the course of Mr. Robinson’s testimony, I had the opportunity to review the original examination and was directed to the erasures in the context of Mr. Robinson’s evidence as to what he could see had been erased. With my own eyes and without the aid of any forensic tools, I was fully capable of following Mr. Robinson’s evidence. I do not require Mr. Lindblom to provide expert evidence on these points.

9With regard to the one point where Mr. Robinson testified that he could no longer see an erasure that he had been able to detect at the time, this evidence was in relation to Question 115 on the examination. Mr. Robinson pointed to a darkly marked numeral “8” within the figure “98.6” on the fourth line of the answer, and testified that he believes that he originally could detect a numeral “9” underneath that had been erased. The significance of this point is that “99.6” would have been the correct figure based upon the original examination question but would not be the correct figure based on the question as changed on the examination administered to the complainant. Mr. Robinson testified that he could no longer make out the numeral “9” underneath the darkened “8”. Whether or not Mr. Robinson is correct in his recollection that he was able to see a “9” at the time he first reviewed the examination, the fact is that Mr. Lindblom’s report sheds absolutely no light on this issue and is of no assistance to me.

10I am aware that Mr. Lindblom’s report and his proposed evidence purport to identify further erasures on the complainant’s examination that correspond to the answers to the original questions. However, there is no evidence before me that Mr. Robinson, or anyone else, was able to identify or relied upon any such further erasures in taking the actions and making the decisions at issue in this proceeding.

11As a result, for all of these reasons, I find that Mr. Lindblom’s proposed expert evidence is not admissible in this proceeding.

Documents from a student’s OSR

12As stated in my Interim Decision, s. 266(2) of the Education Act, R.S.O. 1990, c. E.2 , as amended, provides that pupil records are privileged and are not admissible “in any trial, inquest, inquiry, examination, hearing or other proceeding”. As indicated in my decision, it has been held that this statutory privilege that attaches to a “pupil record” under the Education Act relates specifically and only to a student’s Ontario Student Record (“OSR”) and that all additional documentation falls outside the scope of the privilege: Children's Aid Society of the Regional Municipality of Waterloo v. L. (T.) [1990] O.J. No. 1174 (Prov. Ct.). In addition, the Education Act creates an exception where the pupil is an adult and has provided his written permission to allow the admission of this material into evidence.

13In my Interim Decision, I noted that material from the complainant’s OSR had been tendered into evidence by the complainant himself. However, as the Education Act expressly requires that “written permission” be provided, I requested that such written permission be provided by the complainant. To date, no such written permission has been received.

14In my Interim Decision, I also requested that the respondents identify whether any other material that has been admitted into evidence in this proceeding forms part of any student’s OSR. In response, the respondents identified that documents appearing at Tab 10 of the Joint Document Brief of the Commission and the Complainant, which has been marked as Exhibit 1 to this proceeding, contain documents that form part of the OSR of a student who testified as a witness in this proceeding. While this student testified as to the matters that are referenced in these documents, no written permission has been provided from this student for these documents to be admitted into evidence.

15The respondents also identified certain other documents that previously had formed part of the OSR of another student who has testified as a witness in this proceeding, but these documents were removed from this student’s OSR prior to the hearing. As a result, the statutory privilege in s. 266(2) of the Education Act has no application to this material.

16In order to ensure that I have properly received evidence from the OSRs for the complainant and for the other student who testified as a witness in this proceeding, I require that written permission for these documents to be received into evidence be provided to me by no later than January 21, 2009, failing which I will strike these documents from the record.