T.S. v. Toronto District School Board, 2010 HRTO 605

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.S. by his next friend P.S.

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: March 19, 2010

Citation: 2010 HRTO 605

Indexed as: T.S. v. Toronto District School Board

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of disability in the provision of education services.

2On November 30, 2009, the respondent filed a Request for an Order during Proceedings (“RFOP”) seeking, among other things, an order directing the applicant to permit the respondent to use, disclose, and submit as evidence to the Tribunal information and documents from the applicant's Ontario Student Record (“OSR”).

3In an Interim Decision, 2010 HRTO 176, the Tribunal denied the respondent’s request for disclosure of the applicant's OSR. The applicant indicated that he would consent to the respondent viewing his OSR after the conclusion of the mediation. The Tribunal held that, in light of the applicant’s position, and since the respondent had not indicated it wished to access the OSR in advance of the mediation, it was not necessary for the Tribunal to determine the issue at that stage of the proceeding.

4On January 28, 2010, the respondent filed a further RFOP arguing that it required access to the OSR in order to file its Response. The respondent seeks an order requiring the applicant to consent to the use of his OSR by the respondent. In the alternative, the respondent seeks to defer the requirement to file its Response until after the mediation.

5The respondent argues that access to the OSR is necessary for it to file its Response. It states that it must include information contained in the applicant’s OSR in order to respond to the allegations contained in the Application

6The applicant objects to the RFOP.

7The 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.

8The 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.

9While 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.

10In more recent cases, however, where an applicant did object to a similar request, the Tribunal was not prepared to grant an order compelling the applicant to provide consent to the use of an OSR at this early stage of the proceedings. See Pellew v. Muki Baum Treatment Centres, 2010 HRTO 222; Campbell v. Toronto District School Board, 2010 HRTO 463; and Thomas v. Toronto District School Board, 2010 HRTO 484.

11In Thomas, supra, the Tribunal considered the competing interests of the parties and held:

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.

12The RFOP raises the issue as to whether, without access to the OSR, the respondent can comply with its obligation under the Rules to respond to the Application.

13Under its 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.

14Within 20 days of the date of this Interim Decision, the respondent must 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.

15I am not seized of this matter.