McLeggon v. Toronto District School Board, 2010 HRTO 602

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher McLeggon by his litigation guardian, Blancheta McLeggon

Applicant

-and-

Toronto District School Board and Lisa Beischlag

Respondents

AND B E T W E E N:

Christopher McLeggon by his litigation guardian, Blancheta McLeggon

Applicant

-and-

Toronto District School Board, Greg Freeman, Yashar Nazarian and Jennifer Newby

Respondents

AND B E T W E E N:

Christopher McLeggon by his litigation guardian, Blancheta McLeggon

Applicant

-and-

Toronto District School Board, Janet McBeth-Mutter and Stephanie Fetterolf

Respondents

AND B E T W E E N:

Christopher McLeggon by his litigation guardian, Blancheta McLeggon

Applicant

-and-

Toronto District School Board and Glen Edwards

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 19, 2010

Citation: 2010 HRTO 602

Indexed as: McLeggon v. Toronto District School Board

1The applicant’s mother filed these four Applications, as litigation guardian of the applicant, three applications under s. 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and the fourth application under s. 34 of the Code, alleging discrimination on the basis of ancestry, colour, disability, ethnic origin, place of origin and race in the area of goods, services and facilities.

2The purpose of this Interim Decision is to address the respondents’ Request for Order During Proceedings (“RFOP”) for an order requiring the applicant’s litigation guardian to provide written permission for the respondents 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”).

3The RFOP was served on the applicant’s representative by courier on February 9, 2010, such that the effective date of service is February 11, 2010. As such, the applicant’s Response to the RFOP was due on February 25, 2010. No such Response has been received from the Tribunal.

4The allegations raised in these four Applications relate to disciplinary suspensions and alleged differential treatment towards the minor applicant because of his race and disability, extending from the period from February 2007 to March 2009. The applicant also is relying upon an alleged pattern of discriminatory discipline meted out towards him dating back to April 2005, and has filed with the Tribunal disciplinary records relating to this discipline as well medical records from April 2005 and September 2009 and his Individual Education Plan from September 2009.

5The respondents take the position that they will be unable to properly defend themselves against these allegations without being permitted to use and rely upon material from the applicant’s OSR.

6The respondents refer 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.

7The respondents submit that these provisions preclude disclosure of information and/or documents from an OSR without the written consent of the student’s parent.

8The Tribunal’s Rules for Transitional Applications as they apply to s. 53(5) applications incorporate the powers granted under Rule 1.7 of the Tribunal’s Rules for s. 34 Applications: see Rule 11.1. Pursuant to Rule 1.7(p) of the Tribunal’s s. 34 Rules, I have the power to require any party or other person to produce any document, information or thing. In my view this power extends to the situation where, as here, a party seeks the assistance of the Tribunal in overcoming some legal impediment to producing documents which already are in its possession. In addition, Rule 1.7(s) gives me the power to make such further orders as are necessary to give effect to an order or direction made under the Rules. In my view, when required to overcome a legal impediment to production, this Rule gives me the power to order an applicant to provide written permission to facilitate production, where appropriate.

9In previous cases, this Tribunal has ordered an applicant’s litigation guardian to provide permission for respondents to use and rely upon a student’s OSR where the documents contained therein are relevant to the allegations raised in the proceeding and particularly where, as here, no objection to such use and disclosure has been raised by the applicant and where, as here, the applicant himself or herself has relied upon documents from the OSR: see Persaud v. Toronto District School Board, 2008 HRTO 92; Stock v. District School Board of Niagara, 2009 HRTO 2039; Prieur v. Ottawa Catholic School Board, 2009 HRTO 1702. Unlike other cases at this Tribunal where a respondent’s request for permission to use and disclose the OSR have been found to be premature, this matter is proceeding to a hearing on May 6, 2010 at which the respondents will be required to defend themselves against these allegations.

10In these circumstances, I find that it is appropriate to require the applicant’s litigation guardian to provide written permission to the respondent school board to use, disclose and submit documents and information in the applicant’s OSR to this Tribunal. However, given the scope of the allegations raised in this proceeding, the documents being relied upon by the applicant, and the material raised in the respondents’ responses to these allegations, I find that it is appropriate to limit the timeframe for use and disclosure of the applicant’s OSR to the period from September 2004, which is the commencement of the school year during which the first suspension being relied upon by the applicant occurred, to the present date.

11Accordingly, the applicant’s litigation guardian is directed to provide written permission to the respondent school board, within 14 days of the date of this Interim Decision, so that it and the other named respondents may use, disclose and submit documents and information in the applicant’s OSR to the Tribunal in the course of this Application for the period from September 2004 to the present date.

12I am not seized of this matter.