Pellew v. Muki Baum Treatment Centres, 2010 HRTO 222

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chevin Pellew by his litigation guardian, Myrtle Pellew Applicant

-and-

Muki Baum Treatment Centres, Toronto District School Board and Michelle Manning Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: February 1, 2010 Citation: 2010 HRTO 222 Indexed as: Pellew v. Muki Baum Treatment Centres

1This is an Application filed October 30, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on behalf of a young man with serious disabilities, alleging discrimination in the area of goods, services and facilities on the basis of disability.

2The respondent Toronto District School Board ("TDSB") has not yet filed a Response. It seeks an Order requiring the applicant's litigation guardian to authorize the disclosure of the applicant's Ontario Student Record ("OSR"). The TDSB also seeks an Order removing it as a respondent on the basis that it is improperly named in these proceedings. It seeks an extension of time to prepare its Response, if necessary, upon the Tribunal's deciding the preliminary requests.

3The respondent Muki Baum Treatment Centres ("MBTC") and the personal respondent have filed identical preliminary Responses with significant portions redacted. MBTC seeks an Order from the Tribunal requiring the applicant's litigation guardian to consent to the disclosure of the applicant's personal information and personal health information.

4The applicant's litigation guardian opposes the respondents' Requests. This Interim Decision deals with these preliminary issues.

REQUESTS FOR DISCLOSURE

5MBTC asks the Tribunal to order the applicant's litigation guardian to grant written consent to the disclosure of the applicant's personal information both within MBTC's control and in the control of third parties. In support of this Request, MBTC argues that disclosure of the information is necessary to enable it to respond to the Application. MBTC submits that the applicant has made an issue of his medical and personal needs and makes allegations related to the services he received from MBTC that relate to those needs. Reference to the confidential documents, it is argued, is necessary to MBTC's ability to provide a full Response.

6The TDSB seeks an Order that the applicant's litigation guardian provide written permission for the respondent to use, disclose and submit as evidence to the Tribunal information and documents from the applicant's OSR. It argues that without the requested consent, the TDSB is unable to respond fully to the allegations contained in the Application.

7The applicant's litigation guardian's position is that she refuses to grant blanket consent to disclosure of information and documents, but that she is prepared to consider a more tailored request. She agreed to the respondents preparing a list of documents in their possession that they wish to disclose for the purposes of preparing their Response.

8It appears that the Requests raise two distinct issues. The first, raised by MBTC's disclosure request, concerns consent to the disclosure of personal information and personal health information. The second issue, raised by the TDSB's disclosure request, concerns privileged documents.

9The Tribunal has extensive powers to compel disclosure. Rule 1.7(p) authorizes the Tribunal to "require a party or another person to produce any document, information or thing and provide such assistance as is reasonably necessary…." The scope and timing of disclosure under the Rules is outlined at Rule 16, which provides that disclosure obligations do not arise until a hearing is scheduled:

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.

10While disclosure at the pleadings stage is not typically required, the respondents take the position that they are unable to provide a full Response without the ability to rely on confidential and privileged documents.

11Pursuant to section 266(2) of the Education Act, R.S.O. 1990, c. E.2, "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 OSR: Persaud v. Toronto District School Board, 2008 HRTO 92, at paras. 38-39.

12Rule 16.1(b) of the Tribunal's Rules expressly excludes privileged documents from disclosure obligations. The Tribunal therefore has no power to order privileged documents to be disclosed: Regisford v. Dufferin-Peel District Catholic School Board, 2009 HRTO 1429 at para. 11. The case relied on by the TDSB, Stock v. District School Board of Niagara, 2009 HRTO 2039, is not helpful because the applicant's litigation guardian in that case did not object to the disclosure of the privileged documents. The Tribunal does not have the power to order a party to waive privilege in order to compel disclosure.

13There may, however, be consequences for a party that makes allegations of discrimination which relate to privileged documents, and then withholds consent to the disclosure of those documents such that the respondent is prevented from meaningfully responding to the allegations. On its own initiative, or at the request of a party, the Tribunal may consider whether the Application in whole or in part amounts to an abuse of process in such circumstances.

14Aside from the privileged documents, the Tribunal has the power to order the disclosure of personal and confidential information if it is necessary to ensure a fair, just and expeditious process. The Tribunal does not usually require broad documentary disclosure at the pleadings stage, and it would be premature to make such an order in this case, especially given the broad nature of the respondents' request. After the hearing is scheduled, the parties will be required to share all "arguably relevant" documents so as to allow for a full enquiry into the evidence. All that is required at this stage is what is necessary to complete a Response.

15The governing question therefore is whether, in the absence of the consent sought, the respondents are able to reasonably comply with their obligation under the Rules to respond to the Application. Rule 8.2 outlines what is required in a Response:

A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies… [emphasis added]

16It appears the parties are presently engaged in a process of identifying the specific documents sought by the respondents for the applicant's litigation guardian's consideration. The parties shall have until February 8, 2010, to complete their negotiations, and the respondents shall have until February 16, 2010, to file full Responses. If disputes remain on February 8, 2010, the respondents should alert the Tribunal and seek an additional extension of time, detailing the reasons for the request and outlining any additional relief sought. The Tribunal may then schedule a conference call to address any outstanding consent and disclosure issues.

REQUEST TO REMOVE

17The respondent TDSB requests that it be removed as a respondent in these proceedings on the basis that it has been improperly named. It argues that the TDSB and MBTC are two separate legal entities and that the TDSB has no involvement or authority in regard to the admission and treatment of those receiving services from MBTC. The TDSB's role is simply in providing educational programs and services for MBTC, comprising only a component of its treatment program. It further argues that the TDSB has no statutory duty to the students at MBTC under the Education Act, nor does it have any statutory duty to the applicant because he does not reside within the TDSB's jurisdiction.

18The applicant opposes the request. Counsel argues that the TDSB's involvement in these proceedings is necessary precisely because MBTC and the TDSB are separate legal entities. A number of TDSB employees are named in the Application as individuals who worked with the applicant and whose alleged conduct forms the basis of the applicant's claims of discrimination. Counsel further submits that the fact the applicant resides outside the jurisdiction is not a reason to accede to the respondent's request. There is no dispute that the applicant legitimately attended MBTC and received educational services from TDSB staff.

19Pursuant to Rule 14(b) of the Rules, the Tribunal has the power to add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal considered a request to remove a personal respondent. These factors subsequently have been referred to in a number of cases dealing with the same issue. While this case involves a slightly different situation, not of a personal respondent, but of a second organizational respondent, it is appropriate to use a modified list of the Persaud factors:

1. Is there is another respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to MBTC's deemed or vicarious liability for the conduct of the TDSB and its employees?

3. Is there is any issue as to the ability of MBTC to respond to or remedy the alleged Code infringement alone?

4. Does any compelling reason exist to continue the proceeding as against the TDSB, such as where it is the conduct of its staff that is a central issue or where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the TDSB if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the TDSB?

20Based on my review of the Application and the respondents' submissions, it is clear that all of the factors favour denying the respondent's request. The allegations as against the TDSB and its staff are distinct from those against MBTC. It is clear that the two organizations are separate legal entities and are representing their distinct interests in this matter. There is no indication that MBTC could be deemed vicariously liable for the actions of TDSB staff. The prejudice to the applicant is therefore significant: he could potentially be denied access to a remedy should a finding of discrimination be made stemming from the actions of the TDSB and its staff. Releasing the TDSB at this early stage where the applicant has made out clear and distinct allegations against it would therefore be inappropriate. The burden of participating in the proceedings for the TDSB is no greater than it is for any party properly named as a respondent in a Tribunal application, and therefore any prejudice is negligible.

ORDER

21The Tribunal orders the following:

(a) The request to remove the respondent TDSB from these proceedings is denied.

(b) The request for an order compelling the applicant's litigation guardian to provide written consent to the respondent MBTC to disclose the applicant's confidential personal and medical information is denied.

(c) The request for an order compelling the applicant's litigation guardian to provide written consent to the respondent TDSB to disclose the applicant's OSR is denied.

(d) If the parties reach an agreement by February 8, 2010 with respect to consent and disclosure, the respondents are required to file complete Responses (Form 2) by February 16, 2010.

(e) If the parties do not reach an agreement by February 8, 2010 with respect to consent and disclosure, and the respondents believe they are still unable to file a complete Response, they are directed to advise the Tribunal prior to February 16, 2010.

22I am not seized of this matter.