T.S. v. Toronto District School Board, 2011 HRTO 1471

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: Sherry Liang

Date: August 5, 2011

Citation: 2011 HRTO 1471

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, through his next friend, his mother, alleges discrimination on the basis of disability in the provision of education services. In general, the applicant alleges that the respondent failed to appropriately accommodate his needs arising out of disabilities, and treated his behaviour as disciplinary issues rather than as manifestations of his disabilities.

2The purpose of this Interim Decision is to deal with a request by the respondent for an order granting it leave to file an amended Response disclosing portions of the Response currently redacted and, if the Tribunal determines that it is necessary, an order directing the applicant’s next friend to provide a written consent to disclosure of the contents and/or information contained in the applicant’s Ontario Student Record (“OSR”) to the Tribunal, and permitting use of OSR documents at the hearing of the Application.

3The respondent filed a Request for an Order During Proceedings (“RFOP”) on June 14, 2011, requesting the above. This is not its first request for access to the OSR. The respondent filed a RFOP to the same effect on receipt of the Application. The applicant responded to the RFOP, through his next friend, by stating that he would consent to the respondent viewing his OSR after the conclusion of mediation. The Tribunal denied the request, finding it unnecessary to rule on the issues at that stage.

4The respondent filed a further RFOP on January 28, 2010, requesting a similar order, stating that the purpose of the requested order was to enable it to use and disclose the information in the OSR for the purpose of filing its Response. In response, the applicant objected to the request but submitted in the alternative that certain conditions be imposed, amongst other things, that only a viewing should be permitted, or that certain named individuals conduct the photocopying.

5By Interim Decision dated March 19, 2010, 2010 HRTO 605, the Tribunal denied the request stating that it was not appropriate to make any determination regarding access and disclosure of documents and records in the OSR at that stage. The Tribunal also stated that 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.

6In response to the current Request, the applicant’s next friend states that although she is not willing to give the respondent “carte blanche consent”, she is prepared to consent to the use of certain portions, and subject to certain conditions. She also states that although she does not object to the request to file an amended Response, she also wishes certain conditions to be placed on the respondent. In an exchange of correspondence prior to the Request, the applicant had also indicated that any consent, if given, would be after the exchange of arguably relevant documents.

ANALYSIS

7In considering the respondent’s request, it is important to note that the respondent is not requesting that the applicant produce documents to it that are not already in its possession. The respondent has the applicant’s OSR, but because of the provisions of the Education Act, R.S.O. 1990, c. E.2, is constrained in the use it may make of the OSR. The circumstances of this case are therefore somewhat different than those presented in other cases where a respondent seeks production of documents from an applicant prior to the timelines for production and disclosure under the Tribunal’s Rules. It is also different from those cases where a party seeks production of documents that are in the possession of a third party.

8The respondent has filed a Response, much of which is redacted because it apparently refers to information from the OSR. The respondent wishes to file an amended Response that discloses those redacted portions. I do not find it necessary to defer consideration of this request until after the deadline for production of arguably relevant documents. I am satisfied that this issue should be determined before the production deadlines, to the extent that it affects the Response and a potential amended Reply.

9It is also notable that in the Application, the applicant refers to material in the OSR. It is apparent from this, and from the issues raised in the Application, that information in the OSR will be material to the case presented by the applicant, and the defence presented by the respondent. It would be manifestly unfair for the applicant to be able to rely on this material, but not the respondent.

10The relevant portions of the Education Act state:

266. (1) In this section, except in subsection (12),

“record”, in respect of a pupil, means a record under clause 265 (1) (d).

Pupil records privileged

(2) A record is privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for the improvement of instruction and other education 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.

11The respondent has submitted a number of decisions of both courts and tribunals which have considered issues raised by the treatment of the OSR under the Education Act, the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“MFIPPA”) and in the civil litigation process. To those decisions and principles, I also find it relevant to refer to the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, and particularly sections 5.4 (disclosure) and 23 (power to control proceedings).

12The respondent has raised a number of legal issues involving the interpretation of the above-noted legislation, as well as the application of court-derived principles about disclosure of documents in a civil proceeding. I have reviewed the legal authorities and it is fair to say that they raise complex issues of law all arising out of distinct factual contexts.

13In reviewing the material and submissions before me, I find it unnecessary to determine some of the legal issues raised by the respondent, such as whether the provisions of MFIPPA override section 266(2) of the Education Act. I also find it unnecessary to determine, for the purposes of this decision, whether the mere signing of an application alleging discrimination by a school board in the provision of educational services amounts to an implicit waiver of a student’s rights under section 266 of the Education Act and/or provides implicit written permission for the use of the school board of OSR information in responding to the application.

14Based on the particulars in the Application, as well as the applicant’s own expressed intention to rely on parts of the OSR, the applicant has implicitly consented to at least some use and disclosure of the OSR by the respondent in order to defend itself. However, in subsequent correspondence and submissions the applicant’s next friend explicitly seeks to place a number of conditions on her consent. I am not satisfied that the restrictions she seeks to place are necessary to protect the privacy of the OSR documents and information. The respondent is not receiving documents, through a disclosure process, in which it otherwise has no interest or responsibilities. It is still subject to its obligations under the Education Act. To the extent that it may use or disclose documents or information from the OSR for the purposes of the proceeding before the Tribunal, it is also subject to the Tribunal’s Rules on the confidentiality of documents. The applicant cannot rely on documents and information from the OSR in the Application, while seeking to prevent the respondent from using the same in order to present its case. I find it necessary, for a fair and just proceeding, for the respondent to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

15In E.P. v. Ottawa Catholic School Board, 2009 HRTO 1702, the Tribunal stated: “In my view, the respondents must be permitted to rely upon the entire IPRCs and IEPs from June 2006 to October 2007 in order to hold a fair and just hearing. It would be abuse of process for the applicant’s litigation guardian to withhold consent to the production of documents that are crucial to the resolution of the Application.”

16I accept the applicant’s submission that there should be a limit to the time frame of the information used, although I find it to be broader than the period he suggests. In light of the allegations contained in the Application, the applicant’s consent may be restricted to documents and information in the OSR from September 2007 to the date of the Application.

17The applicant’s next friend will therefore be directed to state whether she gives consent to the respondent to use and disclose documents and information from the OSR, covering the time period September 2007 to the date of the Application, for the purpose of this proceeding. If she does not give her consent, within two weeks of the date of this Interim Decision, I will consider whether the Application should proceed or whether it should be dismissed as an abuse of process.

18The respondent raises a broader concern about the ability of school boards to defend themselves against allegations of discrimination in educational services, where its use of the OSR is restricted. In reviewing the Tribunal’s decisions and procedures in this area, it may be that this is an issue that requires greater clarification, earlier in the processing of an application. I note that in some recent decisions of the Tribunal, it has ordered respondents to be given access to documents in their own files that were arguably protected by health privacy legislation, in order to file a Response. See Johnston v. Toronto Transit Commission, 2011 HRTO 923.

19Where an application is filed which claims discrimination in educational services and it is apparent that a respondent school board must use and disclose information from an OSR in order to defend itself, including to file a full response, the Tribunal will consider, on request from such a respondent, whether the application should proceed unless an applicant provides explicit consent to use and disclose information that information.

20In the result, I direct as follows:

• The applicant’s next friend shall state, within two weeks of the date of this Interim Decision, whether she consents to the respondent’s use and disclosure of documents and information from the OSR (for the period from September 2007 to the date of the Application) for the purpose of this proceeding;
• If the respondent receives such consent, the respondent may file its amended Response within three weeks of the date of this Interim Decision, disclosing portions previously redacted to the extent that they relate to the period from September 2007 to the date of the Application;
• The applicant may file an amended Reply, responding to issues raised by the portions of the Response that were previously redacted, within five weeks of the date of this Interim Decision;
• The time lines for disclosure and production under Rules 16 and 17 remain as stipulated in the Tribunal’s correspondence of June 28, 2011;
• If the applicant does not provide her consent in the terms specified above within two weeks of the date of this Interim Decision, the Tribunal will consider whether the Application should proceed and may seek submissions on whether it should be dismissed as an abuse of process.

21Nothing in my direction precludes the Vice-chair presiding at the hearing of this matter from ruling on the admissibility or relevance of any of the documents at the hearing.

22I am not seized of this matter.

Dated at Toronto this 5th day of August, 2011.

“Signed by”

Sherry Liang

Vice-chair```