Thomas v. Toronto District School Board, 2010 HRTO 484

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doraine Thomas by her next friend Lilian Dixon

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: March 3, 2010

Citation: 2010 HRTO 484

Indexed as: Thomas v. Toronto District School Board

1This is an Application filed on August 12, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Lilian Dixon brings the Application on behalf of her daughter Doraine Thomas and alleges discrimination on the basis of race, colour, place of origin and disability in the area of goods, services and facilities.

2The application originally named Highland Junior High School; however, the respondent board has corrected that given that individual schools are not legal entities. The style of cause has been amended accordingly.

3The respondent has filed a Request for an Order during Proceedings (“RFOP”) which seeks an order that the applicant’s next friend provide written permission for the respondent to use, disclose and submit as evidence to the Tribunal in the course of this Application, information and documents from the applicant's Ontario Student Record (“OSR”). The respondent also seeks an extension of the time for filing the Response to 35 days following the receipt by the respondent's representative of unconditional written permission from the applicant's next friend or alternatively, an extension to the deadline for filing that Response of 34 days calculated from January 4, 2010. The applicant has not responded to the RFOP.

4The respondent refers to the Education Act, R.S.O. 1990, c. E.2, as amended, which 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.

5The respondent submits that these provisions preclude disclosure of information and/or documents from an OSR without the written consent of the student's parent. The respondent submits that it is unable to defend itself without referring to, using and disclosing to the Tribunal, as evidence, information and documents from the applicant’s OSR, as the contents of that record relates directly to the contents of the Application which pertains to the educational services, programs and placements provided to the applicant by the respondent.

6The respondent relies on Stock v. District School Board of Niagara, 2009 HRTO 2039, in which the Tribunal made an order directing the next friend of the applicant to provide written permission to the respondent so that it may use, disclose and submit documents and information in the applicant’s OSR to the Tribunal in the course of the Application.

7While 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. 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). In the present case, the applicant has neither objected nor consented to the use of her OSR.

8The respondent’s Request requires the Tribunal to consider competing interests. 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 being able to access and disclose records in the OSR. Given the statutory privilege, the Tribunal will also scrutinize carefully the degree of disclosure sought by a respondent, for it may be that procedural fairness does not require unrestricted access and disclosure.

9At some point in the proceeding, if the parties are not able to resolve any disputes regarding disclosure, the Tribunal may be required to balance the competing interests and decide whether it has the authority to or should order written permission to be given. If an applicant unreasonably withholds access to relevant documents, thereby prejudicing the ability of a respondent to answer the allegations against it, the Tribunal may consider whether this as an abuse of process that justifies refusing to continue with an Application.

10However, it is unnecessary to provide a definite answer at this time. 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.

11In the present case, the underlying issue in the Request before me is whether the respondents are able to comply with their obligation under the Rules to respond to the Application, absent the written permission sought.

12Referring to the processes under the Tribunal’s old rules, the Tribunal has stated that “except in the rarest of circumstances, preliminary and procedural objections should not be brought prior to a party filing its pleadings and making disclosure”: Garrelhas v. ICE Consultants Inc., 2005 HRTO 51. Although the procedural framework in place at the Tribunal in 2005 was different, the general principle stands. I do not find it appropriate at this stage to make any determination regarding access and disclosure of documents and records in the OSR.

13The respondent must therefore file a Response. If it is necessary to amend the Response because of further disclosure at a later point, the respondent may ask for leave to do so. 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.

ORDER

14The Tribunal directs as follows:

1. The respondent must file a Response within 25 days of this Interim Decision.

2. Since the applicant has not responded to the Request, the Tribunal finds it appropriate to direct Lilian Dixon to state in writing whether she gives permission to the respondent to use and disclose Doraine Thomas’ OSR, for the purposes of this Application. Her response must be provided to the Tribunal and the respondent within 14 days of this Interim Decision.

15I am not seized of this matter.