HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tianna Campbell
Applicant
-and-
Toronto District School Board, L’Amoreaux Collegiate Institute,
Grace Price and Alisa Cashore
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Campbell v. Toronto District School Board
[1] This is an Application filed November 16, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), by a former student of the respondent board alleging discrimination in the area of goods, services and facilities on the basis of race, colour, ancestry, sex, age and reprisal. This Interim Decision addresses the respondents’ Request for Order (the “Request”) during Proceedings seeking disclosure of the applicant’s Ontario Student Record (“OSR”).
BACKGROUND
[2] The Application arises out of the applicant’s attendance as a pupil at the respondent school during the fall of 2008. Among other things, the applicant alleges that a teacher made derogatory remarks to her and about her academic potential based on the identified grounds. In addition, she alleges that after raising concerns regarding the same, she was labelled a troublemaker and ultimately suspended.
[3] The respondents have not filed a Response but instead have filed the Request seeking an order requiring the applicant to provide written permission for the respondents to use, disclose and submit as evidence to the Tribunal, in the course of the Application, information and documents from the applicant’s Ontario Student Record (“OSR”). According to the respondents, section 266(2) of the Education Act, R.S.O. 1990, c. E.2, as amended, precludes disclosure of information and/or documents from a pupil’s OSR 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. The respondents state that without an ability to use and disclose the information in the OSR, the respondents will be unable to defend themselves.
[4] In addition, the respondents seek an extension of time for filing a Response to 35 days following the receipt of the unconditional written permission from the applicant.
[5] The applicant opposes the respondents’ Request. Among other things, the applicant argues that the Application relates to the treatment of the applicant by her former teacher and vice-principal and it is unclear how the OSR is arguably relevant to the determination of the Application. Further, the applicant argues that the requested Order is not in keeping with the stated legislative intent to preserve the privacy of the student records and is premature.
[6] Along with her Response to the Request, the applicant has filed a copy of a letter sent to the respondents. In the letter the applicant confirms her opposition to the Request but also states that in order to properly assess and decide whether to consent at some later point, she requests a copy of the OSR or information as to where she may obtain a copy of the same.
[7] The respondents have filed a reply to the letter indicating that the OSR is no longer in the possession of the respondent board as the applicant is no longer attending a school in its board. In addition, in response to the applicant’s submissions, the respondents state that the scope of the Application includes claims of poor academic performance and a suspension from school. According to the respondents, the OSR would include progress reports and documentation concerning the suspensions and it would be prejudicial for the respondents to have to respond to “any” of the allegations in the Application without having access to the documents contained in the OSR.
DECISION
[8] Section 266 of the Education Act provides as follows:
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.
9The respondents argue that section 266(2) establishes that the OSR is privileged and that it must obtain a student’s written permission to access the OSR. In support of its submission that the Tribunal has the power to order the applicant provide such written permission, the respondents rely on the Tribunal’s Interim Decision in Stock v. District School Board of Niagara, 2009 HRTO 2039.
10While in Stock the Tribunal ordered that applicant provide her written permission for disclosure of a student’s OSR, the facts are distinguishable from the present case. In Stock, the applicant’s next friend had specifically indicated that she did not object to the respondents’ request to use, disclose and submit as evidence, information and documents from the OSR. This distinction is significant because in ordering that written permission be given, the Tribunal was not overriding a parental or student decision not to give consent, which is the Request before me. In addition, it is notable that in a more recent case, where an applicant did object to a similar request, the Tribunal was not prepared to grant an order compelling the applicant to provide his written consent. See Pellew v. Muki Baum Treatment Centres, 2010 HRTO 222.
11It is apparent that in cases involving allegations of discrimination in a school setting where there are relevant records in an OSR related to the allegations in an application, there are competing interests at stake. On the one hand, there are the privacy interests of the applicant and the fact that “pupil records” are protected as “privileged” by statute. On the other hand, respondents should have a right to make a full answer and defence to allegations, which may require their being able to access and disclose records in the OSR. At a certain point in the proceeding, if the parties are not able to work out any disputes regarding disclosure, the Tribunal may be required to balance these competing interests and decide whether absent disclosure or written permission to disclose records, it would be an abuse of process to continue to proceed with an application, either in whole or in part, because a respondent is precluded from providing a meaningful response to some or all of the allegations.
12In this case, the request for written permission to access the OSR is being made at an early stage of the Tribunal’s processes. The parties’ obligations to disclose arguably relevant documents have not yet been triggered. In the normal course, if a hearing is scheduled, the applicant will be under an obligation to disclose all arguably relevant documents, which may well include the OSR or parts of it. In the present case, the underlying issue in the Request before me is whether the respondents are presently able to comply with their obligation under the Rules to respond to the Application. Under Rule 8.2, a Response is described as follows:
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...
13Based on the material before me, it would appear that only some of the allegations made in the Application involve matters for which there may be related records in the OSR. In addition, it would appear that the respondents would be able to provide a Response to the allegations through consulting with the various individuals involved. Further, it would appear that while the applicant has objected to the Request, she has also made it clear that her position may change once she obtains a copy and has an opportunity to review the same. In the circumstances, I do not find it appropriate at this stage to make any determination regarding access and disclosure of documents and records in the OSR. This is consistent with the Tribunal’s general approach regarding disclosure and exchange of documentation where in general, there is no obligation to exchange arguably relevant documents among the parties until a hearing date is confirmed.
14The current deadline for filing a Response is therefore extended to 25 days after the date of this Interim Decision. The parties should continue the process of attempting to resolve the issue of disclosure of OSR records, but the respondents must file a Response regardless. If it is necessary to amend the Response because of further disclosure at a later point, the respondents may ask for leave to do so. As well, if there remains a disagreement as to whether any party has fulfilled its obligations under the Tribunal’s rules for pre-hearing disclosure, the Tribunal will consider the issue through a Request for Order.
[15] I am not seized of this matter.
Dated at Toronto, this 1st day of March, 2010.
“Signed by”
Kathleen Martin
Vice-chair