T.S. v. Toronto District School Board, 2011 HRTO 1678

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: September 12, 2011

Citation: 2011 HRTO 1678

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.

2On August 5, 2011, the Tribunal issued an Interim Decision in this matter, 2011 HRTO 1471, directing the applicant’s next friend to indicate whether she consents to the respondent’s use and disclosure of documents and information from the Ontario Student Record (“OSR”) (for the period from September 2007 to the date of the Application) for the purpose of this proceeding. The Tribunal held that If the applicant’s next friend did not provide her consent in the terms specified in the August 5, 2011 Interim Decision, the Tribunal would consider whether the Application should proceed and may seek submissions on whether it should be dismissed as an abuse of process.

3The applicant’s next friend did not provide consent in the manner specified in the August 5, 2011 Interim Decision. Instead, in email correspondence, the applicant’s next friend proposed to place certain conditions on her consent. Further, she filed a Form 12 (Request for a Tribunal-Ordered Inquiry), seeking orders from the Tribunal that govern the manner in which the applicant’s OSR is handled.

4In the August 5, 2011 Interim Decision, the Tribunal stated:

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 respondents to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

In 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.”

5Given the applicant’s next friend’s refusal to consent in the terms expressed in the Interim Decision, the Tribunal scheduled an oral hearing for September 14, 2011, to hear submissions from the parties regarding whether it would be an abuse of process for the Application to proceed.

6On September 9, 2011, the applicant’s next friend wrote to the Tribunal and the respondent to advise:

Further to Vice-Chair Liang’s Interim Decision, I consent 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.

7In light of the applicant’s consent, the telephone conference hearing of September 14, 2011 is cancelled.

NEXT STEPS

8The Tribunal orders the following:

• 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;

• Within six weeks of the date of this Interim Decision, the parties must exchange all arguably relevant documents; and

• In all other respects, the timelines for disclosure and production under Rules 16 and 17 remain as stipulated in the Notice of Hearing.

9I am not seized of this matter.